(i) the appeal in proceedings 2018/00113504 (including the motion to adduce new evidence in that appeal) (Elias George Wakim v Karime Wakim

Catchwords

(2006) 80 ALJR 458 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353[1992] HCA 48 Devries v Australian National Railways Commission [1993] HCA 78Wakim v State of New South Wales [2017] NSWSC 697 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22(2007) 236 ALR 209 Faulkner v Daniel (1843) 3 Hare 19967 ER 355 Fay v Moramba Services Pty Ltd [2010] NSWSC 725 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Gamser v Nominal Defendant (1977) 136 CLR 145[1977] HCA 7 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 and 138[1964] HCA 69 Green v Green (1989) 17 NSWLR 34313 Fam LR 336 House v The King (1936) 55 CLR 499[1936] HCA 40 Jakimowicz v Jacks [2016] VSCA 42 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Kioa v West (1985) 159 CLR 550[1985] HCA 81 Lawless v The Queen (1979) 142 CLR 659[2008] HCA 4282 ALJR 1425249 ALR 250 National Trustees Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268

Judgment (18 paragraphs)

[1]

Background

The background to this judicial advice application has been adverted to above.
In support of the application, a number of affidavits affirmed by Mr Attia were read (namely, affidavits affirmed by Mr Attia on 12 February 2019, 5 July 2019, 14 August 2019 and 6 September 2019, respectively). Annexed to Mr Attia's 14 August 2019 affidavit was a copy of an affidavit sworn 31 July 2019 of Mr Rocco Michael Ardino, the former solicitor of the deceased who acted for the deceased in one or more of the respective first instance proceedings, deposing to the list of creditors of the deceased's estate and his estimate of the likely amount of settlement moneys that might be received by way of compensation or damages in favour of the deceased's estate in relation to the respective claims. The original of Mr Ardino's affidavit was in due course filed in court on the hearing of the judicial advice application.
An applicant for judicial advice (such as, here, Mr Attia) must, pursuant to s 63(8)-(11), give notice to any person with potential beneficial rights affected by a conveyance or distribution made in accordance with the advice given by the court. In Mr Attia's 14 August 2019 affidavit, Mr Attia lists the potential beneficiaries who he has attempted to contact in relation to these proceedings, noting that they have either not responded or are not themselves interested in the proceedings. Hence it is submitted that this is not a case where there is an adversarial interest (such that the procedure under s 63 would not be suitable (see Re Rosewood Research Pty Ltd (No2) [2014] NSWSC 1226 at [71] per Darke J)).
Broadly speaking, the position appears to be that the only assets of the deceased's estate are those represented by the benefit of the claims that are sought to be pursued if the respective appeal proceedings are successful, other than what was described as a claim in respect of certain costs orders that had been made in an earlier court proceeding. As to that costs claim, it is said that an amount might be recoverable for the estate in the order of $200,000 to $300,000 in respect of those costs. However, it seems that there was some dispute at the time on this issue. As to this, there was insufficient material before me for me to form any view as to the likelihood of any such amount being recovered for the benefit of the deceased's estate; nor is it apparent that any steps have to date been taken to pursue recovery of that amount.
As the deceased died without a Will, his estate will be distributed on intestacy pursuant to s 128 of the Succession Act 2006 (NSW). He died without leaving a spouse and with no issue. As such, his mother would be entitled to distribution of his estate (she being the defendant in the equity case and the respondent to the proceedings in the Court of Appeal in which leave is sought to appeal from the Equity Case Decision). There was some enquiry made by Mr Attia during the course of one of the various adjournments of the matter as to the whereabouts of a divorced spouse of the deceased and as to whether the deceased may have had a de facto spouse. However, it does not appear that that enquiry resulted in any likelihood that there will be another claim on the intestate estate.
As at 10 July 2019, it had only just been appreciated (and I say this with no criticism of Counsel, who had only then become involved in the matter) that there might be an issue as to whether, irrespective of the prospects of success of the appeal in relation to the equity case, there would be any point in pursuing a claim against the deceased's mother that would, if successful, result in her making compensation to the estate which would then be distributable out of the estate to her (and it was not clear whether the views of the deceased's mother had been sought as to the continued prosecution of the appeal proceedings). In part, this was the reason for the adjournment of the hearing on 10 July 2019. The position taken at that stage by Mr Attia's Counsel was that there would be little point pursuing the equity case appeal as, regardless of the result, any beneficial or legal interest would ultimately merge (see T 2.47; 10/7/19). Mr Attia, however, subsequently resiled from that position, when represented by Mr Stewart on 29 August 2019, on the basis that there would first need to be a distribution to creditors of the estate in whose interests, as I see it, the appeal proceedings are now primarily being sought to be run; a matter to which I come below.
As to the creditors of the deceased's estate (itemised in a schedule annexed to Mr Ardino's 31 July 2019 affidavit), these appear to be comprised largely of the legal representatives who acted for the deceased in the respective proceedings (including Mr Ardino and Mr Attia himself). During the course of argument at the penultimate or final resumed hearing, Mr Attia indicated that if this presented a conflict then he would not pursue his claim for costs against the estate (T 4.15; 22/11/19).

[2]

The respective appeal proceedings

I turn now to each of the respective appeal proceedings.

[3]

The equity case

The first of the appeal proceedings relates to the equity case. It is described, emotively, by Mr Stewart in his final written submissions on the present application as the deceased's "richest seam of litigation". The estimated quantum of this claim is put by Mr Ardino at $500,000 (the house, it is said, being worth some $750,000) or, in the alternative, an amount of $302,000 (being the amount of an alleged gift or payment of $202,000 by the deceased to his mother, plus interest thereon).
The dispute the subject of this appeal relates to an alleged agreement that the deceased alleged had been entered into in 1990 (the Alleged 1990 Agreement). In submissions prepared by Counsel (Ms Hawkins) apparently for use in the appeal proceeding and written before the deceased's death, this is said to be an agreement undertaken between the deceased and his late father (with which "course of action" in a discussion with the deceased's mother she is said to have agreed) whereby premises at Punchbowl (of which his late father was the registered proprietor) would be the deceased's after both parents passed away in return for the deceased assisting them both in care into their old age; and it is said that the deceased also offered the sum of $200,000 to his late father as a result of the agreement.
In Mr Stewart's submissions on the present application, the alleged agreement is described as an agreement that entitled the deceased to own the Punchbowl home if he gave his parents $200,000 from a compensation payment of over $1m (that the deceased had received in earlier personal injury proceedings) and cared for them until their deaths.
Pausing here, an agreement to the effect there described does not in terms appear to contemplate that the deceased would have any legal interest in the Punchbowl property during his mother's lifetime (though it no doubt would have supported the claim for a beneficial interest under a constructive trust or other such relief over the property); and since the deceased died before the time at which (on his own case) the obligation to transfer the property arose, it is difficult to see how the claim is now sought to be put; moreover, the payment of $200,000 (albeit disputed by the deceased's mother) does not seem to have been a payment of any of the purchase price for the property and hence would not have supported any finding of a purchase price resulting trust (nor does it appear that there was any claim for a resulting trust pressed at first instance, though the grounds of appeal seem to raise such an issue and to which I return below).

[4]

"Dog bite" case

This proceeding relates to a personal injury claim following an incident in which a dog attacked the deceased, causing him to fall and injure his head, neck, shoulder and back. He was absent and claimed to be ill at time of hearing for which he sought an adjournment. The adjournment was refused and his case was dismissed. The complaint made in the appeal proceeding is that he was denied procedural fairness and natural justice.
Mr Ardino has prepared a memorandum of advice (annexed to Mr Attia's 5 July 2019 affidavit) as to the underlying claim and has opined that the claim had "excellent prospects" of success. The factual basis for the claim is that the deceased was sitting at a café, holding a small dog in his hands, when an unrestrained bull terrier came and attacked the small dog, in the course of which the bull terrier jumped on the deceased forcing him to the ground where the deceased hit his head, The claim was for breach of a duty of care and breach of the Companion Animals Act 1998 (NSW) against the dog owner for permitting the bull terrier to "roam free in the street unleashed" where, it is said foreseeably, it attacked another animal. The particulars of injury included an injury to the deceased's right shoulder and a concussive injury to his head.
Mr Ardino says in his memorandum of advice that the defence filed on behalf of the defendant advanced no meaningful reason or explanation to justify the fact that the dog was allowed to roam the streets "unleased [sic]"; and that the suggestion that the deceased "somehow … contributed" towards the manner in which the bull terrier attacked the deceased's small dog or was somehow "partly responsible for the outcome" is "nonsense".
In Mr Ardino's affidavit, the amounts recoverable are itemised at: past domestic care ($18,720); and past out of pocket expenses ($20,000 plus another $15,000). The costs of conducting both matters together totalled some $295,666.10 less the expenses itemised above. These costs include an allocated brief fee for Counsel when the "matter [was] not reached" of $11,000; and amounts payable to Mr Attia referable to the appeals of $35,000. A schedule of disbursements in relation to the combined personal injury matters totals $47,521.
Ms Hawkins has again opined that there are reasonable prospects of success of this appeal on the grounds stated and that the appeal is not manifestly groundless. It is said that the administrator would "need to either settle the matter or litigate the matters again". It is noted (though without elaboration) that "there will be issues concerning no pain and suffering [I understand this to mean in light of the deceased's death], and issues of evidence of the matters as Mr Wakim has passed away."

[5]

False imprisonment/malicious prosecution case

This proceeding was dealt with at the same time, and with the same result, as the "dog bite" case.
In another of Mr Ardino's memoranda of advice (also annexed to Mr Attia's 5 July 2019 affidavit) he sets out that the claim was for damages for: false arrest by the police; assault by the police by reason of the unreasonable application of excessive force; trespass to the person; false imprisonment by the police; breach of duty of care/negligence on the part of the police; malicious prosecution; and vicarious liability of the police.
It was alleged that on 29 August 2010 a domestic violence incident occurred outside the Punchbowl property involving an argument between the deceased's mother and the deceased's then girlfriend, Janice Smith (whose whereabouts Mr Attia has since been unable to locate).
The allegations include that the arresting officer told the deceased he was under arrest for having driven his car dangerously; that he directed the deceased to remove his sling from his arm so that he could be handcuffed; that he failed to give any warning to the deceased that if he resisted he would be committing an offence; that there was no need for him to have been arrested for the offence of driving dangerously; that his sling was forcibly removed and his arm straightened causing acute pain; that he was forcibly placed inside the police van; that he was "badly shaken by the driver's erratic manner of driving going over speed humps and turning corners, causing him … to be thrown around inside the van and hitting [sic] and further injuring his right arm and shoulder as well as hitting his head"; that he was forced out of the van by being pulled out and thrown, landing on the ground and further injuring himself; that he was held down on the floor of a cell "prostrate position" face up, with a shoe to his throat causing him to hit the back of his head multiple times on the concrete floor and repeatedly hit; that the police refused to allow him to call anyone including his solicitor; that he was then taken to hospital; that, when he was returned to the cell, he was again refused permission to call his solicitor; and that he was again returned to hospital on the basis of mental health concerns (where he was subsequently released from custody). It is alleged that the deceased sustained severe permanent injuries (as itemised in the memorandum of advice).

[6]

Judgment on the "dog bite" and false imprisonment/malicious prosecution matters

It is relevant to note that the primary judge was, at the outset of the hearing, simply ruling on an application to vacate the hearing date. Counsel for the deceased (Ms Hawkins) who appeared on that occasion informed his Honour that she was briefed only to prosecute the notice of motion and that if the relief was not granted she would not appear at the hearing of the substantive actions for damages and would seek to be excused (see the Dog Bite/False Imprisonment Decision at [6]). It is also relevant to note that the primary judge recorded that the deceased was not personally present in court at 10am on the first day of the hearing.
His Honour set out the principles applicable on a motion to vacate the hearing; reviewed the medical evidence relied upon in support of the application to vacate the hearing; noted that two short adjournments had been granted to enable Mr Ardino to contact the doctor's surgery to ascertain when he would be able to give oral evidence and was told that it would not be until 1 June 2017 and then for only half an hour; and, for the reasons there set out, refused the application to adjourn the hearing to 1 June and, for the further reasons there set out, refused the application to vacate the trial. There appears to have been a further adjournment during which Counsel informed his Honour from the Bar table that she had spoken to the deceased on the telephone. An application was then apparently put to his Honour on the basis of the deceased's unfitness to participate in the proceedings (a matter that his Honour noted had been before the court on an earlier interlocutory application on 5 April 2017). For the reasons that his Honour then gave, his Honour ruled that he would not vacate the hearing on the "putative" medical grounds. An alternative application to vacate based on a transfer of the proceedings to the District Court was also refused (see the Dog Bite/False Imprisonment Decision at [48]-[51]).
It is apparent from the primary judge's reasons that there had been a history of delay and that his Honour considered that unsatisfactory evidence had been given to support the last minute applications that had there been made. Relevantly, for present purposes, his Honour noted at [53] that: Following the making of the order for dismissal of the notice of motion, I called upon the plaintiff's counsel as to what evidence would be adduced in support of the plaintiff's claims in the two cases. Counsel informed the Court she had no instructions to proceed with the hearing or to lead any evidence. Her instructing solicitor Mr Ardino indicated that he likewise has no instructions to proceed to conduct the hearing. Accordingly, no evidence has been tendered to the Court in support of the plaintiff's claims, and both proceedings will be dismissed with costs.

[7]

Likely recovery

The deceased's creditors and disbursement providers are itemised in a schedule annexed to Mr Ardino's affidavit of 31 July 2019 (totalling $170,000). The bulk of that amount (some $150,000) are apparently Mr Ardino's legal fees of acting in prior Supreme Court common law and bankruptcy proceedings.
In his affidavit affirmed 6 September 2019, Mr Attia deposes that, on 10 April 2018, on an application for a fee waiver the deceased deposed to his assets (totalling less than $2,000) and to a Centrelink income of $780 per fortnight (at [4] of Mr Attia's affidavit of 6 September 2019). He estimates the value of the Punchbowl property (by reference to "some online real estate websites" not in evidence) at "between $750,000 and $870,000" (at [8] of Mr Attia's affidavit of 6 September 2019). He estimates the deceased's contingent estate as being: around $200,000 to $300,000 for the costs recoverable in respect of the 2004 compensation proceeding and between $500,000 to $1m of equity in the Punchbowl property (at [12] of Mr Attia's affidavit of 6 September 2019).
Meanwhile, Mr Ardino has quantified the amount recoverable in relation to a costs order obtained in earlier proceedings in the Federal Court of Australia at $271,362.49 (see Mr Ardino's 6 September 2019 affidavit at [9] annexed to Mr Attia's affidavit) and has deposed that those costs could be pursued in that proceeding. However, in an attachment to his affidavit, it appears that, at an earlier stage (by letter dated 22 January 2014) Mr Ardino had advised the Australian Financial Security Authority that it "may not be possible to recover the full amount of all of these costs" for the reasons there stated and that it was difficult to assess how much would now be recoverable.
Mr Stewart argues that the damages to the deceased's estate should exceed the deceased's debts if the "comprehensive merits advices" (referring to those annexed to Mr Attia's affidavit) were to "come to pass". It is submitted that the level by which the estate should then expect to exceed those debts is evidenced in Mr Attia's affidavit of 6 September 2019 under the heading "Contingent Assets" (see particularly at [12], which sets out the amounts of $200,000 to $300,000 for legal costs recoverable in the earlier Federal Court proceedings and between $500,000 and $1m for the equity in the), plus the damages listed in Annexure "A" of Mr Ardino's 31 July 2019 affidavit (as re-sworn and filed on 6 September 2019), that being the amounts for the personal injuries claim. It is said by Mr Stewart that "no doubt [that] the fruits of a successful appeal in [the equity case] will significantly outweigh those of the other two cases".

[8]

Determination

Mr Attia, in his capacity as administrator ad litem, seeks advice as to whether it is reasonable for him to continue his appointment as administrator ad litem and as to whether it is reasonable for him to continue the respective appeal proceedings.
There can be no criticism of the decision to seek judicial advice as to whether the appeal proceedings presently on foot should continue to be prosecuted (though, regrettably, there is much to be criticised in the way in which the present application for judicial advice has been conducted).
In Bovaird v Frost [2009] NSWSC 917, Brereton J, as his Honour then was, noted (at [32]) that it was both desirable and prudent for trustees promptly to obtain judicial advice as to possible proceedings lest it otherwise be suggested that the trustees "have been gambling with money that is not their own".
Earlier, in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42; 82 ALJR 1425; 249 ALR 250, the High Court had said (at [70]-[72]) that: 70. In particular, trustees who are sued, particularly for breach of trust, may sometimes experience uncertainty about whether they will be able to obtain indemnity as to the costs of their defence under s 59(4) in any event. Perhaps they will if their breach is excused under s 85(2); but they cannot be sure, in advance, that the court's discretionary power to excuse the breach will be exercised in their favour, and one of the matters to be excused is their failure to obtain the court's direction under s 63 or otherwise. This points strongly to the conclusion that an application under s 63 by a trustee sued for breach of trust (including a breach of trust alleged to arise in the very defence of the proceedings) is not to be seen as one which should rarely if ever succeed. Instead it should be seen as a standard instance to which s 63 can in appropriate circumstances apply. 71. In short, provision is made for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. No less importantly, however, resolving those doubts means that the interests of the trust will be protected; the interests of the trust will not be subordinated to the trustee's fear of personal liability for costs. 72. It is, therefore, not right to see a trustee's application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.

[9]

The equity case

It is instructive to address separately the respective grounds of appeal, having regard to what would need to be established in order for the appeal to succeed. It is also worth noting that, insofar as the substance of the challenges to his Honour's fact finding is or includes credibility findings, the circumstances in which findings based on credibility assessments may be found to be erroneous are limited and well established (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [26]ff per Gleeson CJ, Gummow and Kirby JJ; as further explained by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458at [19]-[21]). In Nominal Defendant v McLennan [2012] NSWCA 148, Beazley JA (as her Excellency then was) there confirmed (at [141]) that "[a] finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside simply because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact"; it being necessary for it to be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" (her Honour there citing Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ).
Even if there were to have been a failure by the primary judge to give proper consideration to the evidence before him (and I am not here suggesting that there was) it would not necessarily be the case that any credit findings will be found to have worked a substantial miscarriage of justice. To this, I note that r 51.53 of the UCPR provides that a new trial must not be ordered on any ground unless it appears to the court that some substantial wrong or miscarriage has been occasioned.
None of those matters was addressed in the merits opinions or submissions advanced on the present application.

[10]

The standing ground of appeal

As already noted, nothing turned on the issue of standing at first instance. The determinative finding was that there was no agreement as alleged in relation to the Alleged 1990 Agreement. Therefore, whether the primary judge erred in the conclusion reached as to standing issue, is not to the point.

[11]

The resulting trust ground of appeal

The first impediment to a challenge to the primary judge's decision on this ground is that the case before his Honour was not conducted on the basis of a resulting trust claim. It is not apparent from the primary judgment that any claim of resulting trust was brought at first instance (which may well be why Ms Hawkins puts this in her merits opinion as an alternative "with leave").
The second impediment is as to how it is asserted that a resulting trust arose. In Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060, Campbell J, as his Honour then was, said (at [129]-[148]) that the presumption of a resulting trust can operate in broadly three types of situations: first, where the property is conveyed at law but the entire beneficial interest in the property is not disposed of; second, where the property has been conveyed at law on the basis which initially disposes of the entire beneficial interest but, at a later time, equitable obligations attaching to the property fail or are set aside; and third, where a presumption of resulting trust arises where one person provides the purchase price of property which is conveyed into the name of another person.
The first and second of those categories are concerned with the consequences of failure of some transaction or disposition; the third may arise from the contribution of purchase moneys where two or more persons contribute in unequal shares to the purchase of property which is conveyed to them either in their joint names or in the name of only one of the persons who contributed to the purchase price (and in that situation the party holding the legal estate is presumed in equity to hold the legal estate in trust as tenants in common in shares proportionate to their contributions).
In the present case, it is difficult to see how a resulting trust claim in the third of those categories (a presumed "purchase money" resulting trust of the kind considered in Calverley v Green (1984) 155 CLR 242 at 266-267; [1984] HCA 81; and the subject of the claim considered in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 ) could have been made, since the property in question was purchased a considerable time before any of the alleged contributions by the deceased were made. Presumably, this ground of appeal contemplates a claim based on a resulting trust arising from a failure of the parties to convey the beneficial interest in the property. However, that suffers from the issue, if nothing else, that the alleged oral agreement was not to the effect that there would be any transfer of the legal title to the property while the parents were alive. It was not made clear how such a claim would have availed the deceased even had it been made as such at first instance (which it was not).

[12]

The fiduciary duty ground of appeal

As to the fiduciary duty ground of appeal, this is asserted by reference to the alleged fiduciary duty owed to the deceased as his mother's "disabled son"; it being asserted in the ground of appeal that it is unconscionable for the deceased to dispose of the property and/or to do so without first arranging for the maintenance, care, well-being and shelter of the appellant.
Again, it is not clear that the claim at first instance was cast as a breach of fiduciary duty claim. The authorities relied upon in the merits opinion are ones in which the possibility of a fiduciary duty arising in a parent/child or guardian/ward or step-parent/child relationship has been postulated (including the Canadian case of M(K) v M(H) (1992) 96 DLR (4th) 289 and Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 per Kirby P, as his Honour then was) (although, I note, academic commentary suggests that it may be difficult to establish in this jurisdiction - see, for example, the discussion in Principles of Australian Equity and Trusts, Radan, Stewart and Vickovich, 4th edn, Lexis Nexis, Ch 10.A, p 234, referring to Paramasivam v Flynn (1998) 90 FCR 489). It is not, however, necessary to explore that area of academic interest. It is also not necessary here to explore the argument that there is an inconsistency between the premise of such a claim and the case apparently sought to be run at first instance where the deceased was said to have been the provider of care and assistance to his parents (and the primary judge is here criticised for not finding that case credible) because the fact that the case was not run on such a claim would be fatal to the ground of appeal.
Further still, even if such a ground were made out (which it is by no means clear would be the case), again, the likely result of such a disposition would be a remittal bringing with it, inter alia, costs implications as well as forensic difficulties given that the appellant is now deceased.

[13]

The constructive trust ground of appeal

It is not clear to me precisely how this ground of appeal is sought to be put. It seems to be that the complaint is as to a misapplication of the principles of constructive trusts regarding the levels of contribution and as to the weight accorded to the evidence but (since the first sub-ground also challenges the factual findings as to "no contribution" and "no intention for a constructive trust as a result") it seems that the gravamen of the complaints raised by this ground is as to the factual findings.
I accept that on a common intention constructive trust claim (of the kind described by White J, as his Honour then was, in Shepherd v Doolan [2005] NSWSC 42 (at [31]), it is not necessary that the intention of the parties should have been that there be a specific share of the property, it being sufficient that the parties intended that the claimant should have a beneficial interest or "some form of proprietary interest" (see also Green v Green (1989) 17 NSWLR 343 at 357; 13 Fam LR 336 per Gleeson CJ, with whom Priestley JA agreed). However, it is by no means clear that the error asserted on the part of the primary judge relates to the application of principle as opposed to the assessment of the evidence of contributions.
That gives rise to the difficulty of challenging the primary judge's credit findings and to the difficulty for the appellant in establishing that, on the primary judge's careful review of the evidence, those factual findings were incorrect. It should be noted that the principal reason for his Honour's finding that there was no alleged agreement and no common intention in relation to the alleged contributions was the lack of contemporaneous documents. That problem will remain even if the fresh or new evidence is admitted. In those circumstances, there must be a real issue as to whether even if there were an error in some aspect of his Honour's fact finding (and I am not suggesting that there was any) there would be a refusal to remit the matter for a new trial. No consideration was seemingly given to this possibility by Mr Attia or his advisers.
Furthermore, there seems to be an assumption that the outcome of a successful appeal would be that the estate would obtain an order equating to the value of the house (or the amounts allegedly provided by way of contributions). There has been no consideration given to the range of relief that might be considered on the constructive trust claim and, in light of the disposal of the property, what would now be the basis on which equitable compensation might be assessed.

[14]

The "fresh" or "new" evidence grounds

The difficulty in obtaining leave to adduce the so-called fresh evidence (and in the case of the witness concerned, Sione Pule, it clearly cannot be fresh evidence as it was available at the time but simply not provided to the solicitor) has been considered in a number of cases (see, eg, Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 and R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63]-[115] per Kirby J with whom Mason P and Levine J agreed). Even assuming that evidence were permitted now to be adduced, what it goes to is the assessment of the credibility of the deceased's mother and as to the conclusions that might be drawn as to the making of payments to the deceased's mother. I have pointed above to the difficulties in that regard.

[15]

"Dog bite" and false imprisonment/malicious prosecution cases

To the extent that the appeal in the "dog bite" and false imprisonment/malicious prosecution cases relates to an exercise of discretion (being the refusal to vacate the hearing date), there is a heavy onus on a party seeking to disturb an order made in the exercise of a discretionary power (see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1980] FCA 82; (1980) 31 ALR 232 at [253] per Fisher J; Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365 at 367 per Reynolds JA applying Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7. Nowhere is there articulated an error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense in the refusal of the application to adjourn the hearing.
If it be suggested that this was in error because it meant that the deceased would then be unrepresented, it would in effect hold the court to ransom in relation to the grant of such adjournment applications by the simple device of only retaining legal representatives to run adjournment applications. A similar comment may be made in relation to the refusal to vacate the hearing date. I am not persuaded that there is a reasonable basis to argue that there was appellable error in the exercise of discretion in that regard.
That said, as I understand it, the appeal largely turns on the procedural fairness/natural justice ground as to the summary dismissal of the proceedings by way of the entry of judgment against the deceased, consequent upon the refusal to vacate the hearing.
I would be prepared to accept that there is a basis on which it might reasonably be contended (without, I hasten to add, expressing any view as to whether such error would ultimately be established) that there was an error in the fact that judgment was entered in the absence of the deceased (as opposed to there being simply a summary dismissal of the proceedings), without a hearing on the merits and without there being any evidence before the Court, particularly in circumstances where the "dog bite" case was a case in which it was contended that there was strict liability.
That said, I am not persuaded that in all the circumstances it is in the interests of the beneficiaries of the estate now to seek to pursue that claim (and hence I cannot see that there is utility for the beneficiaries of the deceased's estate to pursue the appeal). This is principally because the result of a successful appeal at best could only be that the matter would be remitted for trial (assuming that the proviso to UCPR r 51.53 was satisfied) and that, in circumstances where Mr Wakim has since passed away, there would then be not insignificant difficulties as to the evidence and proof of the respective claims, not least as to the assessment of damage. This much seems to be acknowledged by Ms Hawkins in her merits advice, where she notes that "there will be issues concerning no pain and suffering, and issues of evidence of the matters as Mr Wakim has passed away." Although I well accept that the matter might settle in advance of a hearing, those difficulties relating to prosecution of the litigation would obviously also have an impact on the prospect for any settlement (and the quantum of any settlement).

[16]

Conclusion

For the above reasons, I am of the opinion that the administrator ad litem would not be justified in continuing to prosecute any of the appeal proceedings. If there are no other assets that the administrator is authorised by the special grant to realise then there would seem to be no useful purpose to be served for Mr Attia to continue as administrator ad litem; but I am not in a position on the information before me to determine that. I am, however, firmly of the view that it would not be in the interests of the beneficiary or beneficiaries of the deceased's intestate estate for the limited moneys of the estate to continue to be expended on the appeal proceedings in question.
It follows that the plaintiff would, subject to the above qualification, be justified in not continuing in his appointment as administrator ad litem. That, however, depends on a number of assumptions as to the administration of the overall estate (it not being clear that anyone has in fact been appointed as administrator of the estate) and any other assets the administrator might be able to realise in his present capacity (such as the claimed recoverable costs).
As to costs, while the preparation and conduct of this application was not satisfactory, I have already made certain costs orders reflecting that. I consider that the balance of the costs would appropriately be reimbursed out of the estate.

[17]

Orders

Accordingly, I make the following orders: 1. Order that the question posed for judicial advice be answered as follows: The plaintiff, as administrator ad litem of the estate of the late Elias George Wakim, would not at present be justified in continuing the following appeals: 1. the appeal in proceedings 2018/00113504 (including the motion to adduce new evidence in that appeal) (Elias George Wakim v Karime Wakim [2017] NSWSC 1283); 2. the appeal in proceedings 2017/00131521 (Wakim v Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697); and 3. the appeal in proceedings 2017/00191184 (Wakim v Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697).
For present purposes, apart from the above order, that leaves only the question of costs over and above those costs that have already been ordered to be borne personally by the administrator ad litem. In that regard, I would make the following order: (2) Other than the costs already the subject of costs orders in these proceedings, order that the costs of the summons seeking judicial advice be reimbursed out of the assets of the estate of the late Elias George Wakim.

[18]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2020

A 40 Jakimowicz v Jacks [2016] VSCA 42 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 M(K) v M(H) (1992) 96 DLR (4th) 289 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42; 82 ALJR 1425; 249 ALR 250 National Trustees Executors & Agency Co of Australasia Ltd v Barnes (1941) 64 CLR 268; [1941] HCA 3 Nominal Defendant v McLennan [2012] NSWCA 148 Paramasivam v Flynn (1998) 90 FCR 489 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5; (1987) 69 ALR 577 Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1980] FCA 82; (1980) 31 ALR 232 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 Re Estate of Coe [2013] NSWSC 968 Re Estate of Roberts (1983) 20 NTR 13; 70 FLR 158 Re O'Donoghue [1998] 1 NZLR 116 Re Rosewood Research Pty Ltd (No2) [2014] NSWSC 1226 Shepherd v Doolan [2005] NSWSC 42 Thomas v Walker (1854) 18 Beav 521; 52 ER 205 Wakim v Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697 Wells v Malbon (1862) 31 Beav 48; 54 ER 1055 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 Texts Cited: Principles of Australian Equity and Trusts, Radan, Stewart and Vickovich, 4th edn, Lexis Nexis Category: Principal judgment Parties: Muhammad Elias Attia (Plaintiff) Representation: Counsel: CK Stewart (Plaintiff)

Procedural history of the present application

This judicial advice application has had what can only be described as an unfortunate history. The matter was first listed for directions before me on 30 May 2019, after it had been listed three times before the Registrar in Equity (on the first two of those occasions there having been no appearance by Mr Attia). This occurred in circumstances where the proceedings in the Court of Appeal were not able to proceed pending the application for judicial advice that had subsequently been brought by Mr Attia (and hence there was an obvious need to progress the judicial advice application expeditiously).
When the matter came before me on 30 May 2019, Mr Attia appeared. He informed me that he was both the administrator and the solicitor on the record and that he was seeking judicial advice as to whether to pursue the three matters in the Court of Appeal, for the purpose of which he was seeking advice from Counsel (Ms Hawkins) as to the prospects of success of those appeals. He also informed me that all interested parties had been notified. I made certain directions, including that any further evidence in relation to the judicial advice application be filed by 17 June 2019, and listed the matter for further directions on 18 June 2019 with a view to fixing a hearing date for the judicial advice application.
On 18 June 2019, Mr Stewart of Counsel appeared for Mr Attia and informed me that the evidence in relation to the judicial advice application had not been filed in accordance with the directions I had made (because Counsel "in this particular area" had not been able to be retained although there had been "manful attempts to do so"). At that stage, the matters in the Court of Appeal were listed before the Registrar of the Court of Appeal for directions on 3 July 2019. An adjournment was sought of the judicial advice application. I adjourned the judicial advice application to 2 July 2019 and extended the time for the filing of any further affidavit evidence (which I was told was an opinion from other Counsel on the judicial advice application) to 4pm, 1 July 2019.
On 2 July 2019, Mr Attia appeared. He informed me that all outstanding advices and evidence had been filed and that the matter was ready to proceed to a final hearing with an estimate of no more than half a day. Accordingly, the matter was listed for hearing before me at 2pm on 10 July 2019.
On 10 July 2019, the hearing of the judicial advice application commenced. Mr Attia was this time represented by other Counsel. In the course of submissions, application was made by Counsel for an adjournment to permit further evidence to be adduced. I made directions for the filing of that further evidence by 4pm on 31 July 2019 and stood the matter over for further directions on 6 August 2019.
No further evidence was filed by 31 July 2019 and there was no appearance by, or for, Mr Attia on 6 August 2019. I listed the matter at 9am on 13 August 2019 for the plaintiff to show cause why the application should not be dismissed.
On 13 August 2019, after a litany of explanations as to what had transpired, I extended the time for filing of the further affidavit evidence (which I was told was then ready to be filed) to 14 August 2019 and listed the matter for the resumption of the judicial advice application hearing at 10am on 29 August 2019.
When the hearing resumed on that day on the judicial advice application, Mr Attia was again represented by Mr Stewart. I was informed by Mr Stewart that he had only come into the matter the afternoon of 27 August 2019 (presumably by this he meant that he had only recently been briefed to appear at the resumption of the judicial advice application hearing itself, since he had earlier appeared for Mr Attia at the directions hearing on 18 June 2019).
On that occasion, regrettably, it seemed that Counsel had not been properly briefed in relation to the matter. Certainly, Mr Stewart conceded that he was not apprised of the "minutiae" of the matter (and to my observation he consistently needed to seek instructions from Mr Attia who was in court with him). After some unsuccessful attempts usefully to progress the matter, I granted Mr Stewart's application for an adjournment (sought for a period of "a month or thereabouts") in order for Counsel to prepare submissions for the further resumption of the hearing and I stood the matter over to 9am on 22 November 2019 for no more than an hour. As foreshadowed in the course of argument, I directed that the costs of the resumption of the hearing of the judicial advice application on 29 August 2019, the costs of the hearing on 10 July 2019 and the appearances in between not be reimbursed out of the estate of the deceased, with the intent that they be borne personally by Mr Attia, having regard to the unsatisfactory basis on which the application had come before me.
By the time the hearing resumed on 22 November 2019, a brief outline of submissions had been filed (albeit belatedly) and the matter was finally able to proceed. I then reserved judgment. Suffice it to say that the manner in which the judicial advice application was prepared and conducted left much to be desired in terms of compliance with the dictates of s 56 of the Civil Procedure Act 2005 (NSW).
In that regard, it should be noted that in applications for judicial advice the practice of the court is to look for, and where appropriate rely on, a memorandum of opinion from Counsel (see, for example, the explanation of the process in Bianca Hope Rinehart as trustee of the Hope Margaret Hancock Trust [2017] NSWSC 282 (Rinehart) at [32] per Rein J and the authorities there cited). At the very least one would expect an opinion that provided careful consideration of the matter, including (if the application related to proceedings at first instance, as Rinehart did): consideration of the case to be advanced; the matters likely to be raised by the defendants; counsel's consideration of the evidence in support of each allegation; and an assessment of the prospects of success and as to the risk of an adverse outcome, including the costs consequences thereof. Similarly if the application, as here, related to appeal proceedings, careful consideration would be expected of: the grounds of appeal, the matters that would need to be established and the potential consequences of a successful or unsuccessful appeal, as the case may be. On a judicial advice application, the court expresses only a view as to whether the applicant is justified in bringing or defending an action (or in this case, appeal proceedings), not a view as to the ultimate outcome "or indeed as to whether any of the allegations which found the claims or the defence will be made out in the proceedings after due consideration of all the relevant evidence tendered by the parties" (see Rinehart at [33] per Rein J). Necessarily, where the proceeding in question is an appeal, consideration should be given as to the underlying claims if what is sought by way of the outcome of the appeal, or what in any event is likely to be the outcome of the appeal succeeding, is a remittal of the proceeding for trial at first instance.

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