The Estate of Tabain (No 2)

Catchwords: CIVIL PROCEDURE — Cross-claims — Against plaintiff — Application for leave to file further cross-claim — No issue of principle
CIVIL PROCEDURE — Hearings — Vacation of hearing date — Where matter originally listed for final hearing on an estimate of 10 days — Where, since listing of matter, further case management issues have been ventilated — Whether feasible to keep hearing within original estimate — Whether hearing should be vacated in the circumstances — No issue of principle

Legislation Cited: Civil Procedure Act 2005 (NSW) s 22
Uniform Civil Procedure Rules 2005 (NSW) rr 9.1, 9.8, 9.9, 28.2

Cases Cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190
Banks v Goodfellow (1870) LR 5 QB 549
Donald v Rail Corporation of New South Wales [2015] NSWSC 1057
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
In the matter of Elsmore Resources Ltd [2016] NSWSC 884
O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839
Pallas v Lendlease Corporation Limited (No 2) [2025] NSWSC 7
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Skytraders Pty Ltd v Meyer [2023] NSWSC 857
Southwell v Bennett [2010] NSWSC 1372
The Estate of Tabain [2025] NSWSC 690
The Owners – Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396
Tom Kerr (Subaru) Pty Ltd v Hanks [2018] NSWSC 1871
Tomanovic Multiown Pty Limited v Interlux Projects Pty Limited [2020] NSWSC 48
Wilson v Gillies (No 2) [2020] NSWSC 658

Category: Procedural rulings

Parties: Sandra Tabain (First Defendant/Applicant)
Matthew James Peter Tabain (Plaintiff/First Respondent)
Mark Justin Tabain (Second Defendant/Second Respondent)
Jon Sinclair Tabain (Third Defendant/Third Respondent)

Representation: Counsel:
T Catanzariti (First Defendant/Applicant)
R Wilson SC (on 8 August 2025) / P Bolster (on 22 August 2025) (Plaintiff/First Respondent)
P Tierney (Second and Third Defendants/Second and Third Respondents)
Solicitors:
Regional Business Lawyers (First Defendant/Applicant)
McLachlan Thorpe Partners (Plaintiff/First Respondent)
Commins Hendriks Solicitors (Second and Third Defendants/Second and Third Respondents)

File Number(s): 2024/00173450

Publication restriction: Nil

JUDGMENT

Introduction

1. By a Notice of Motion filed on 11 July 2025 (Motion), Sandra Tabain, the applicant and the first defendant in these proceedings, seeks an order she be granted leave to file in Court and serve a proposed fourth cross-claim. The first defendant is also the cross-claimant in the second and third cross-claims.

2. The respondents to the Motion are, as identified by their roles in the substantive proceedings, the plaintiff, Matthew Tabain, the second defendant, Mark Tabain, and the third defendant, Jon Tabain. The second and third defendants are the cross-claimants in the first cross-claim.

3. For ease of understanding, I will refer to the parties by their role in the substantive proceedings, rather than their role in this particular Motion.

4. The substantive proceedings were commenced by Statement of Claim filed on 28 June 2024 (the SOC) and relate to the validity of various wills of the late James Peter Thomas Tabain (the deceased). The deceased had died earlier in the year, on 29 April 2024.

5. The first defendant was the wife of the deceased and, with the death of the deceased, claims she is the surviving partner of a partnership known as “JPT and SJ Tabain” (the P****artnership) (see the Statement of Cross-Claim (SOCC) in the third cross-claim at [1]). I do not understand this claim to be in dispute, noting however, that a defence to the SOCC in the third cross-claim has not been filed.

6. The plaintiff, second defendant and third defendant are the three sons of the deceased and the first defendant.

7. Of the pleadings filed to date, issues concerning the validity of various wills are raised in the SOC, the SOCC in the first cross-claim filed on 13 August 2024 and the SOCC in the second cross-claim filed on 29 August 2024.

8. More specifically, the validity of the last three putative wills executed by the deceased are put in issue. These wills are:

9. a will dated 5 July 2021 (2021 Will);

10. a will dated 21 March 2019 (2019 Will); and

11. a will dated 11 February 2015 (2015 Will).

12. I will briefly summarise the contentions the parties make in respect of each of these wills. In what follows, the pleading that is the source for what I am saying is identified in brackets.

13. In relation to the 2021 Will:

14. The second and third defendants propound the 2021 Will (the SOCC in the first cross-claim).

15. The plaintiff claims the 2021 Will is not valid, as:

(a) the deceased:

(i) was “not of sound mind, memory and understanding and incapable of understanding the nature of the act or execution of a will, the extent of the property of which he was disposing, and the claims to which he ought to give effect” (emphasis added) (the SOC); or (ii) did not know and approve the contents of the will (the plaintiff’s Amended Defence to the SOCC in the first cross-claim); or

(b) the 2021 Will was procured by undue influence or there were suspicious circumstances surrounding the making of the 2021 Will (the plaintiff’s Amended Defence to the SOCC in the first cross-claim).

3. The first defendant does not admit the plaintiff’s claims in relation to the 2021 Will (the first defendant’s Defence to the SOC).

4. In relation to the 2019 Will:

5. The plaintiff propounds the 2019 Will (the SOC).

6. The first defendant claims the deceased revoked the 2019 Will by burning it, and so if the Court finds the 2021 Will is not valid, an intestacy arises in the context of which she seeks a grant of letters of administration (the first defendant’s Defence to the SOC; the SOCC in the second cross-claim).

7. The second and third defendants deny the deceased knew and approved the contents of the 2019 Will, say the 2019 Will was procured by undue influence and was signed in suspicious circumstances, and say the deceased revoked the 2019 Will (the second and third defendants’ Defence to the SOC).

8. The plaintiff says the 2019 Will was not later revoked by the deceased burning the will, as at that later stage, the deceased was not of sound mind, memory or understanding and was incapable of forming the intent to destroy the 2019 Will (the plaintiff’s Defence to the SOCC in the second cross-claim).

9. In relation to the 2015 Will:

(a) The second and third defendants propound the 2015 Will, in the alternative to the 2021 Will or to an intestacy (the SOCC in the first cross-claim).

13. As is clear from the portion of the SOC I have extracted and bolded, a real issue in the proceedings will be in relation to the deceased’s understanding of the extent of his property of which he was disposing, and the claims to which he ought to give effect.

14. I will refer to the issues raised in relation to the validity of the 2021 Will, 2019 Will and 2015 Will collectively as the Probate I****ssues.

15. The SOCC in the third cross-claim was filed by the first defendant on 1 May 2025 and concerns whether certain land registered in the plaintiff’s name, as well as the deceased’s name, was subject to an agricultural tenancy in favour of the Partnership. Various parcels of land registered in the names of the plaintiff and the deceased are said to have been purchased by the Partnership.

16. No defence to the SOCC in the third cross-claim appears to have been filed.

17. The proposed SOCC in the proposed fourth cross-claim raises issues as to whether certain land and assets formed part of the property of the Partnership, including some of the land in issue in the third cross-claim. I will refer to the issues raised in this pleading as the Ownership Issues.

18. I will refer to the issues raised by the third and proposed fourth cross-claims together as the Partnership I****ssues.

Procedural background

19. The substantive proceedings have a complex procedural background that need not be fully recounted here. Some further background was provided by Slattery J in The Estate of Tabain [2025] NSWSC 690 at [1], [6]-[9].

20. It suffices to say for present purposes that on 23 May 2025, the matter was before Hammerschlag CJ in Eq who provisionally set the substantive proceedings down for hearing on an estimate of 10 days commencing on 22 September 2025. That 10-day estimate had been provided to the Court by counsel for the first defendant, who also informed the Court the evidence was closed, excepting an expert report from a single, jointly instructed expert. The dates were to be confirmed following consultation with other counsel who were to appear in the proceedings. Soon after, the listing was fixed to commence on 7 October 2025 for 10 days before me.

21. Since the fixing of the listing date, the first defendant filed the Motion I am determining, together with an affidavit in support of the Motion, on 11 July 2025.

22. The Motion was heard by me on 8 August 2025, with further oral submissions provided by the parties on 22 August 2025.

Hearing of the Motion: Submissions on 8 August 2025

23. For the hearing of the Motion on 8 August 2025, Ms Catanzariti of counsel appeared for the first defendant (who had also appeared for the first defendant before Hammerschlag CJ in Eq on 23 May 2025). Mr Wilson of senior counsel appeared for the plaintiff and Mr Tierney of counsel appeared for the second and third defendants.

Evidence

24. The first defendant read and relied on the following affidavits:

25. the affidavit of Taryn Lisa Gollasch dated 11 July 2025;

26. the affidavit of Sandra Tabain dated 1 August 2025;

27. the affidavit of Peter Bruce George dated 13 March 2025;

28. the affidavit of Mark Justin Tabain dated 1 April 2025;

29. the affidavit of Sandra Tabain dated 2 May 2025; and

30. the affidavit of Sandra Tabain dated 31 July 2025.

31. The first defendant explained that the affidavit of Taryn Lisa Gollasch dated 11 July 2025 was filed in support of the Motion (Transcript (TR) 8 August 2025, P2 L30-31). In that affidavit it was stated:

[13] The same parties are involved in the Statement of Claim, First Cross-Claim, Second Cross-Claim, Third Cross-Claim and the proposed Fourth Cross-Claim.

[14] Justice Slattery granted leave for Sandra to file the Third Cross-Claim on 7 April 2025 on the basis that all issues in the dispute within the family should be part of the same proceedings.

[15] When the matter was listed for hearing before Justice Hammerschlag on 23 May 2025, our counsel raised with the Court that there was an issue about ownership of land, and she gave an estimate of the length of hearing of 10 days which expressly included this issue being part of the hearing.

[16] It will take approximately two weeks for Sandra to file any further affidavits in relation to this Fourth Cross-Claim.

26. The first defendant explained that the affidavit of Sandra Tabain dated 31 July 2025 “is really the only affidavit filed in these proceedings which is squarely directed at the question raised in the proposed fourth cross-claim” (TR 8 August 2025, P4 L18-20).

27. The plaintiff read and relied on the following affidavits:

28. the affidavit of Peter Douglas McLachlan dated 7 August 2025; and

29. the affidavit of Matthew James Peter Tabain dated 23 June 2024, including annexure H.

30. Mr McLachlan’s affidavit contained a number of annexures, including a copy of the transcript from the proceedings before Hammerschlag CJ in Eq on 23 May 2025, together with a copy of the proposed fourth cross-claim.

31. Mr McLachlan’s affidavit raised concerns that the 10-day hearing estimate appeared inadequate. That affidavit included a draft Trial Plan indicating that 15 days would be required for the hearing of all of the issues (at [51(c)] and Annexure G).

32. In relation to the Motion more generally, Mr McLachlan’s affidavit indicated that the plaintiff opposed the filing of the proposed fourth cross-claim if it was proposed that it be heard as part of the 7 October 2025 hearing. Mr McLachlan deposed that there would be insufficient time to issue subpoenas or otherwise prepare evidence in reply, noting also that the 10 days set down for the hearing was not sufficient to hear the proposed fourth cross-claim. It was further disclosed that senior counsel then briefed was unavailable for the 7 October 2025 hearing, and that if the hearing proceeded, it was likely that new senior counsel would need to be briefed.

33. Mr McLachlan’s affidavit also indicated that the plaintiff did not oppose the filing of the proposed fourth cross-claim if it was heard separately, provided that adequate time was given to prepare evidence. That affidavit finally stated at [55]:

It is a matter for the Court to decide whether the hearing date commencing 7 October 2025 should be vacated but the Trial Plan indicates well in excess of 10 days will be required for the hearing and this timeframe does not include the Proposed Fourth Cross-Claim.

32. The second and third defendants did not read any affidavit evidence.

Submissions

First defendant’s submissions

33. In support of her application for leave to file the proposed fourth cross-claim, the first defendant made the following submissions in writing:

34. section 22 of the Civil Procedure Act 2005 (NSW) (CPA) provides that a Court may grant the defendant relief in any proceedings as the Court may grant in separate proceedings commenced by the defendant for that purpose;

35. the first defendant can seek relief against the plaintiff by way of cross-claim;

36. the SOC and proposed fourth cross-claim involve the same individuals, largely the same witnesses, and the SOC involves probate of the deceased’s estate where the land is one of the major assets of the deceased’s estate;

37. the plaintiff has been on notice of the Ownership Issues raised by the first defendant;

38. the first defendant did not initially file a cross-claim in relation to the assets of the partnership as she did not want to complicate the proceedings, and because she viewed the claims would not be necessary depending on how the Probate Issues were determined; and

39. following these proceedings being listed for a final hearing by Hammerschlag CJ in Eq, the first defendant finally decided to seek leave to file the proposed fourth cross-claim to preserve her rights and ensure there was no claim for Anshun estoppel, and as she considered it may be expedient for the proposed fourth cross-claim to be part of the proceedings, given the same witnesses and similar evidence may be involved.

40. The first defendant fairly acknowledged it may be difficult for the plaintiff to defend and prepare for the proposed fourth cross-claim by 7 October 2025. If the hearing date was going to be consequently jeopardised by the filing of the proposed fourth cross-claim, the first defendant agreed the proposed fourth cross-claim could be heard at a different time. This would leave the Probate Issues alone to be determined at the hearing commencing 7 October 2025.

41. The first defendant opposed the vacation of the 7 October 2025 hearing date and provided written submissions on this issue, including that the plaintiff had not made any formal application to vacate the hearing date and that he should file a Notice of Motion if he wishes to make such an application. In this context, the first defendant stated her evidence would include (the first defendant’s written submissions at [23]-[25], footnotes omitted):

23. Sandra’s evidence would include that:

a. Hammerschlag J proposed 22 September 2025 but provided the parties with a block of other available dates, and it was the Plaintiff’s counsel, Lachlan Menzies, who proposed the 7 October 2025. This is the first time that the Plaintiff has indicated that its senior counsel was unavailable on 7 October 2025;

b. Sandra is 79 years old, and she is anxious about these proceedings, and the continued delay in the hearing of these proceedings is affecting her health;

c. The continued delay in the hearing of these proceedings is affecting the Company’s business, particularly with its main customer Ricegrowers Ltd trading as Sunrise, who has not renewed a written agreement and is currently engaging with the Company on an informal basis.

24. Sandra submits that the hearing needs to proceed to protect the Company and the Partnership’s business. Justice Hammerschlag said that even though there was a hotly contested family dispute, there was a commercial dispute in the guise of a family dispute, there is a corporation who has contractual obligations to a third party and issues about the company complying with contractual obligations because of an internecine dispute, and if they don’t settle it, they should have a hearing of the case sooner rather than later.

25. Sandra submits it is very late to seek to vacate the hearing date. The Plaintiff was aware of the listing of the matter on 23 May 2025, and Ms Kneebone was removed on 1 July 2025, engaged a new law firm on 9 July, and started receiving documents from the previous lawyers on 13 and 15 July 2025.

36. In her oral submissions, the first defendant agreed that, in an ideal world, all of the claims would be heard at the same time, however stated that as a practical matter, this might not be reasonable given the volume of material involved.

37. The first defendant noted that the reason the proposed fourth cross-claim should be a part of the substantive proceedings was because it involved the same individuals, further noting that each of the witnesses would also have been “lay observers of the deceased’s cognitive function”. I infer this evidence will be relevant to any determination of the Probate Issues.

38. It was also conceded that the issue of the proposed fourth cross-claim and the need for the filing of further evidence in support of it was not squarely raised with Hammerschlag CJ in Eq on 23 May 2025 where the matter was provisionally listed for a final hearing. Notwithstanding this, it was submitted that allowing the filing of the proposed fourth cross-claim would prevent a multiplicity of proceedings, was productive of the just quick and cheap resolution of the issues in dispute between the parties, and ensured that there would be the opportunity for constructive negotiations as all issues would be on the table.

39. The first defendant’s final position was that:

40. leave ought to be granted to file the proposed fourth cross-claim;

41. the 7 October 2025 hearing date be retained for the hearing of the Probate Issues; and

42. a further hearing date be set for the hearing of the third cross-claim and the proposed fourth cross-claim, which might take some 2 to 5 days. In this, it seems a “bifurcated” hearing was contemplated.

Plaintiff’s submissions

40. In his written submissions, the plaintiff indicated he only opposed leave to file the proposed fourth cross-claim if the issues the subject of that pleading were to be heard during the hearing commencing on 7 October 2025. The reasons for this conditional opposition were that it would take some months for the plaintiff to properly respond to the Ownership Issues raised in the proposed pleading, and that if the proposed fourth cross-claim was heard at the final hearing listed for 7 October 2025, the matter would exceed the current 10-day estimate. Senior counsel for the plaintiff estimated that a final hearing that included a hearing of the proposed fourth cross-claim would take some 15 days to complete.

41. The plaintiff also raised a concern as to whether the Court should, in any event, vacate the hearing commencing on 7 October 2025. In support, the plaintiff submitted:

7. … First, absent the proposed 4th Cross-Claim the matter will still take some 14 days to conclude. Second, the matter was not ready to be given a hearing date on 27 May 2025 with the First Defendant on 23 May 2025 failing to disclose she proposed to file a proposed 4th Cross-Claim and adduce further evidence in support of it. It would appear that no-one expected the matter to be set down for hearing on 23 May 2025, with the Plaintiff’s usual counsel unavailable and the Second and Third Defendants unrepresented at that time. Third, given the overlap of witnesses on the proposed 4th Cross-Claim (Sandra Tabain, Peter George accountant, and Matthew Tabain) it is desirable that all matters be heard at the same time.

42. Orally, the plaintiff relevantly noted that the first defendant required leave to file the cross-claim as she was out of time, and that in deciding whether to grant that leave, the Court needed to consider the interests of justice, which required the weighing up of the various respective interests of the parties. The relevant interest of the plaintiff was that he would not be ready to deal with the proposed fourth cross-claim were it to be heard at the same time as the Probate Issues at the upcoming final hearing. The plaintiff accepted the proposed fourth cross-claim raised serious questions for consideration, which is why the plaintiff is required to carry out particular investigations.

43. The plaintiff also submitted that it was his estimate that for all issues to be heard together, some 15 days would be required. However, given the overlap in evidence, even if the proposed fourth cross-claim was to be heard at another time, the substantive proceedings would still take 13 to 14 days. Thus, hearing the third cross-claim and the proposed fourth cross-claim separately would only save one day.

44. The plaintiff’s final position involved the citing of the principles in Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon), stating that, as a starting point, the Court should attempt to keep hearing dates as best it could. The plaintiff noted that a “bifurcated” hearing might extend the overall hearing time and witnesses will necessarily need to be cross-examined twice. However, the plaintiff accepted he would not be “irreparably prejudiced” if the hearing was bifurcated in the manner suggested by the first defendant.

45. The plaintiff also indicated he proposed to file a Summons in relation to his own family provision claim in due course. It was said that whether his family provision claim was ultimately pressed would depend upon the outcome of the Probate Issues. Noting that the second and third defendants had already filed their own family provision claims (which are not being case managed with the substantive proceedings), it was suggested all three of the family provision claims could await the determination of the Probate Issues.

46. The plaintiff further noted that Hammerschlag CJ in Eq had not been informed of any issues in relation to family provision claims.

Second and third defendants’ submissions

47. The second and third defendants provided no written submissions. In making oral submissions, the second and third defendants stated they were “relatively neutral”. However, they observed there were two reasons the matters should be “heard together”:

48. first, “there’s important context in the partnership issues and the dealings between the parties that may have a bearing upon the overall evidence that should be before your Honour with respect to the determination of the probate proceedings” (TR P14 L1-4); and

49. second, it is important to get matters determined so that the members of this family can get on with their lives, especially in the context where the family has been in conflict for quite some time.

50. More generally, the second and third defendants submitted it was imperative that the 7 October 2025 listing be maintained, and that it was important to “press on with the probate listing”.

Reply submissions

49. In reply to the plaintiff’s submissions that the matter, even excluding the proposed fourth cross-claim, could not be heard within 10 days, but would rather need 13 or 14 days, the first defendant suggested that if the evidence could be completed in 10 days, the parties could provide written closing submissions and further Court time could be set aside two to three weeks after the completion of the evidence for closing submissions (on the Probate Issues).

50. Following this submission, the plaintiff stated he did not believe the evidence could be completed in 10 days, even excluding closing submissions.

51. By way of further reply, the first defendant then suggested that the evidence of the expert, Dr Watson, be heard on a separate day, after the completion of the 10-day hearing. Presumably, it would be after that separate hearing day of the expert’s evidence that a further hearing date would be set for the hearing of closing submissions.

52. The scenario contemplated by the first defendant would therefore involve four separate tranches of hearing dates. The first tranche would cover the lay evidence for the Probate Issues. The second would cover the hearing of expert evidence for the Probate Issues. The third would cover closing submissions in relation to the Probate Issues. The fourth would cover evidence and submissions for the third and proposed fourth cross-claims.

Preliminary decision

53. Following the hearing of the submissions, I indicated to the parties that I would reserve my decision, however noted that, at that point, my preliminary view would be to keep the two-week hearing, imploring the parties to consider ways to confine objections and move through the evidence.

Further steps required in proceedings

54. Following the submissions made in relation to the Motion, as set out above, the parties raised further issues in relation to further steps that were required to be taken to prepare for the 7 October 2025 hearing.

55. The second and third defendants sought leave to issue subpoenas to three medical practices, stating there were concerns that the medical records were not complete. In response to this, the first defendant agreed there may be “some gaps” in the medical evidence and did not object to the granting of leave in relation to the issuing of the three subpoenas. The plaintiff raised no objection to the issuing of the three subpoenas either.

56. Additionally, the plaintiff indicated he had issued a “part 33 request” to the Family Court (presumably a reference to the Federal Circuit and Family Court of Australia) to produce a file, and that there had been an objection to that process. The plaintiff foreshadowed that when this matter was next before me, that he would provide me with a short minute which indicated to whom a subpoena may need to be issued the plaintiff could access the file, given the objection that had been taken. I have assumed the part 33 request was a reference to rule 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

57. I indicated to the parties that I would not be dealing with those further issues on 8 August 2025.

Hearing of the Motion: Further submissions on 22 August 2025

58. Having reserved my decision, and on consideration of the evidence filed for the Motion together with the written and oral submissions by counsel, I sought further oral submissions on the issue of whether the Partnership Issues had some bearing on the Probate Issues, a question which I did not consider had been adequately (or at all) addressed during the 8 August 2025 hearing. On my behalf, my Associate sent an email to the parties indicating that I would list the matter for further oral submissions on the following question:

Do the issues raised by the Third Cross-Claim and Proposed Fourth Cross-Claim have some bearing on the issues concerning probate raised in the Statement of Claim, and the First and Second Cross-Claims …?

59. I listed the matter for further oral submissions on 22 August 2025.

60. In the same email, I also requested the parties to provide further clarity as to what interlocutory issues were outstanding or otherwise required further ventilation.

Determination of actual ownership

61. On 22 August 2025, Ms Catanzariti of counsel appeared for the first defendant and Mr Tierney of counsel appeared for the second and third defendants. Mr Wilson of senior counsel, who had appeared for the plaintiff on 8 August 2025, was unavailable on 22 August 2025, and so Mr Bolster of counsel appeared on behalf of the plaintiff.

62. In relation to the potential interaction between the Partnership Issues and the Probate Issues, I had the following exchange with counsel for the plaintiff (TR 22 August 2025, P2 L13-35) (emphasis added):

HER HONOUR: Thank you. Just going to then in the statement of claim, and this, Mr Bolster, is the plaintiff's statement of claim. Paragraph 8 of the pleadings, in particular, says:

"The plaintiff says at the time the deceased made the further will" - that's the 2021 will - "he was not of sound mind, memory and understanding, and incapable of understanding the nature of the act, or execution of the act."

The next part I'm about to read out is the particular part I want you to address me on, "Incapable of understanding the extent of the property of which he was disposing and the claims to which he ought to give effect." In relation to the probate, the probate proceedings, which sort of flow from the statement of claim and the associated cross-claims, that issue will squarely be before the Court­­

BOLSTER: Yes.

HER HONOUR: ­­and I just ask you to address me as to whether, at that particular time, the Court will be required to make an assessment of - in making an assessment of the deceased's capacity to understand the extent of his property as an anterior issue, will there be an inquiry into what his actual assets were?

63. To this bolded question, the plaintiff, through his counsel, responded that he did not think the pleading required, in a strict sense, a determination as if one was carrying out an audit, or a detailed review of the deceased’s assets. The plaintiff then referred to the classic case concerning testamentary capacity of Banks v Goodfellow (1870) LR 5 QB 549 submitting “the question posed in Banks v Goodfellow is [whether] he understood in substance what his estate was” (TR 22 August 2025, P2 L42-46). The plaintiff noted that there was “certainly an overlap” between the Probate Issues and the Partnership Issues, but that “it does not necessarily preclude the matters being dealt with separately”. I then specifically asked whether it might be important in determining the Probate Issues “to know whether the deceased understood that he beneficially owned a particular piece of land and therefore that it was his to give away, or whether the partnership owned that piece of land”. The plaintiff’s submission in response was that “[i]t could be. You couldn’t rule it out.” (TR 22 August 2025, P3 L12-21).

64. As to the extent to which any Court hearing and determining the Probate Issues would need to know whether the deceased, as opposed to the Partnership, owned various parcels of land (which is essentially the subject matter of the proposed fourth cross-claim), the first defendant submitted the Court would not be required to know this level of detail. It was submitted that all that needed to be shown was that a deceased had a “general understanding” of their assets (TR P4 L5), and that in order to determine this issue, the Court did not need “to drill down into how [those] affairs are legally characterised” (TR 22 August 2025, P5 L48-49).

65. When asked what the difference was, in money terms, between a finding that the land in question was part of the deceased’s estate, as opposed to the Partnership, I was told the value of the estate increased from $20 million to $40 million.

66. In summary, I understood the submissions of the first defendant to be that the law does not require that the deceased knew the detail of the nature and extent of his assets, including whether a parcel of land was his to directly leave under his will, or whether it was a partnership asset. For this reason, the Court itself would not be required to make any determination as to the legal status or ownership of any of the land, before making a determination as to whether the deceased had the capacity to understand the extent of his property, as pleaded in the SOC.

67. The second and third defendants, as well as the plaintiff, agreed with the first defendant’s estimation that the value of the estate would increase from $20 million to $40 million, depending on whether the deceased is determined to have been the beneficial owner of the land. The second and third defendants suggested that this distinction would be of particular significance to the 2019 Will, as the 2019 Will contained provisions relating to partnership interests (TR 22 August 2025, P11 L17-19).

68. More generally, however, the second and third defendants made submissions in terms similar to those of the first defendant, being that all that was required to establish capacity to understand the nature of an estate was a “general understanding”, and that descending into “ownership structures”, presumably by the Court, was not necessary.

Vacation of the hearing commencing 7 October 2025

69. The parties were also heard on the issue of whether the Court should vacate the 7 October 2025 hearing dates.

70. The plaintiff relied on his written submissions, as set out above at [41]. Additional to this, the plaintiff noted the submission of the first defendant that if the hearing dates were threatened that she would not press the third and proposed fourth cross-claims, and went on to submit “that doesn’t really answer the question, because the question’s going to remain regardless of whether those cross-claims are pursued” (TR 22 August 2025, P12 L6-9).

71. The first defendant and the second and third defendants reiterated their opposition to the vacating of the hearing dates.

Outstanding issues

72. In relation to any further outstanding issues, the parties made the following submissions:

73. The plaintiff confirmed he has no objection to the second and third defendants being granted leave to issue three further subpoenas; and that any issues associated with the Part 33 request were no longer live. He also submitted the family provision claim should wait until the determination of the outcome of the probate proceedings.

74. The first defendant indicated she would be seeking leave to issue subpoenas to a number of banks for Matthew Tabain and Catherine Tabain, his wife, and to the National Grower Register also in relation to both Matthew Tabain and Catherine Tabain. These subpoenas would be in relation to the third and proposed fourth cross-claims. She also submitted that any family provision claims should wait until the determination of the outcome of the probate proceedings, where negotiations can then be undertaken.

75. The second and third defendants confirmed their intention to seek leave to issue three further subpoenas, and foreshadowed seeking leave to issue a subpoena to Ms Kneebone, a solicitor, in relation to the Probate Issues. They also submitted that any family provision claims should “await the outcome of these proceedings” (TR 22 August 2025, P15 L29-30).

76. In summary, it appears to me that the following procedural issues in relation to these proceedings are either still yet to be resolved, or may arise very soon:

77. the filing of a defence in the third cross-claim (and in the proposed fourth cross-claim, if leave to file it is granted);

78. the granting of leave to the second and third defendants to issue three subpoenas to three medical practices;

79. the granting of leave to the second and third defendants to issue a subpoena to Ms Kneebone;

80. the granting of leave to the first defendant to issue subpoenas concerning Matthew and Catherine Tabain, in relation to the Partnership Issues; and

81. the potential need to grant leave to the plaintiff to issue subpoenas in preparing its case concerning the proposed fourth cross-claim, if leave to file is granted (as the plaintiff raised in his written submissions on the Motion).

82. This list obviously excludes any further issues that might arise.

83. Additionally, there is the shadow of multiple claims for family provision orders, two of which have already been filed and one of which has been foreshadowed by the plaintiff. As I have already mentioned, those proceedings are not being case managed with the proceedings currently before me, and there is no evidence before me as to the progression or status of the evidence in those proceedings.

Consideration

76. For the reasons which follow, I have determined:

77. the first defendant should be given leave to file her fourth cross-claim; and

78. the hearing commencing on 7 October 2025 should be vacated.

Leave to file cross-claim

Legal principles

77. A defendant’s entitlement to make a cross-claim arises from s 22 of the CPA**,** however r 9.1 of the UCPR governs how a cross-claim may be made in proceedings. That rule relevantly states:

9.1 Making of cross-claim

(1) A party (the cross-claimant) may make a cross-claim—

(a) in proceedings commenced by statement of claim, within the time limited for the party to file a defence, or

(b) in proceedings commenced by summons, before the return day specified in the summons,

or within such further time as the court may allow.

…

78. Here, where the proceedings have been commenced by Statement of Claim, r 9.1(1) means that a party may not make a cross-claim after the time limited for the filing of a defence without leave of the Court: The Owners – Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396 at [6] (Ball J). It is for that reason leave is properly being sought to file the proposed SOCC in the proposed fourth cross-claim.

79. The discretion to grant leave under r 9.1 is to be exercised having regard to the case management considerations enshrined in ss 56-60 of the CPA.

80. The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA s 56(1). The court must seek to give effect to that overriding purpose when it exercises any power in the CPA or the UCPR: CPA s 56(2).

81. In seeking to give effect to the overriding purpose, the Court must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: CPA s 57(1).

82. In deciding whether to make an order or direction for the management of proceedings, including an order of a procedural nature, the court must seek to act in accordance with the dictates of justice: CPA s 58(1). By operation of s 58(2) of the CPA, the determination of the dictates of justice in a particular case requires the Court to have regard to ss 56 and 57 of the CPA. The Court may also have regard to such of the following matters or other matters it considers relevant:

83. the degree of difficulty or complexity to which the issues in the proceedings give rise;

84. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;

85. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

86. the degree to which the respective parties have fulfilled their duties under s 56(3);

87. the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; and

88. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

For the recent application of these principles in the context of case management, see Pallas v Lendlease Corporation Limited (No 2) [2025] NSWSC 7.

83. In the specific context where leave is sought to file a cross-claim, Slattery J observed that “central considerations” are the consequence of the grant of leave for the positions of other parties and the expeditious conduct of the proceedings: Tom Kerr (Subaru) Pty Ltd v Hanks [2018] NSWSC 1871 at [40].

84. These principles are consistent with those set out in Aon (see [93]-[98] in particular).

Application to current Motion

85. I consider that leave should be granted to the first defendant to file and serve the proposed fourth cross-claim.

86. As all parties agree, the proposed fourth cross-claim raises legitimate issues. It is in the interests of facilitating the just, quick and cheap resolution of the real issues in these proceedings for the Ownership Issues to be dealt with in the current proceedings. Therefore, I accept the first defendant’s contention that filing the proposed fourth cross-claim will prevent a multiplicity of proceedings.

87. I do not consider it necessary to decide whether, if leave was refused, the first defendant would have then been prevented from raising the Ownership Issues because of the operation of an “Anshun estoppel” (named after the case of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45). In circumstances where the third cross-claim already raises some issues concerning the Partnership, it is desirable in any event to have all the issues between the parties litigated within the one set of proceedings.

88. To the extent the proposed fourth cross-claim involves similar witnesses and similar evidence to the substantive proceedings, a suggestion the plaintiff did not disagree with, I am satisfied it would be a more efficient use of resources to have the proposed fourth cross-claim determined as part of these proceedings.

89. Though it is unfortunate the Ownership Issues were not pleaded and particularised earlier, I consider it significant the plaintiff does not object to leave being granted as long as he is given the opportunity to properly prepare to meet the issues raised. It follows that any injustice that might otherwise be suffered by the plaintiff now having to deal with the proposed fourth cross-claim can be ameliorated by deferring the hearing of it.

Should the third and proposed fourth cross-claims be separately tried, or should the hearing date be vacated?

90. Whilst submissions were made in relation to deferring the hearing of the Partnership Issues until after the hearing of the Probate Issues, there is no formal application before me as to whether the third and proposed fourth cross-claims should be heard separately, nor are there submissions as to any proposed orders I should make if those two cross-claims were to be heard and determined separately.

Legal principles concerning separate hearings

91. Clearly, the Court has the power to order that the third and proposed fourth cross-claims be heard separately, either under r 9.8(a) or r 28.2 of the UCPR. But just as clearly, the starting point is that all questions of fact and law should be determined at once: Southwell v Bennett [2010] NSWSC 1372 at [15(g)] (Hallen AsJ); Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(3)] (Einstein J). The starting point under the UCPR for cross-claims is that they will be heard with the main proceedings from which they arise: UCPR r 9.9.

Legal principles concerning the vacation of hearing dates

92. The plaintiff raised the spectre of vacating the hearing commencing 7 October 2025. However, he has not made any formal application regarding the vacation of hearing dates and stated that it was a matter for the Court to decide this.

93. The statutory power to adjourn the hearing of proceedings comes from s 66 of the CPA: O*’*Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839 (O’Keefe) at [49] (Meek J). In deciding whether or not to vacate the hearing dates, it is well settled that the Court is required to have regard to the matters set out in ss 56-58 of the CPA: O’Keefe at [50]-[53]; In the matter of Elsmore Resources Ltd [2016] NSWSC 884 at [11]-[14] (Black J). I have set out the case management considerations referred to in the relevant provisions of the CPA above already and will not repeat them here.

Application to current procedural circumstances

94. I am of the view that the dictates of justice require that all of the issues in the proceedings, being the Probate Issues and the Partnership Issues, be heard in the same proceedings, and that all questions of fact and law should be determined at once. My reasons for this are set out below.

Why the Probate Issues should be heard with the Partnership Issues

95. The Partnership Issues and the Probate Issues are connected. A determination of whether the deceased was the beneficial owner of the land could double the value of his estate from $20 million to $40 million. According to the second and third defendants, the 2019 Will (which was not in evidence before me) refers to partnership considerations and thus an enquiry in the context of the probate proceedings into the assets of the partnership, and the deceased’s understanding of the Partnership’s assets, may well be appropriate. In any event, a court hearing the Probate Issues may consider it necessary in the circumstances of this case to make findings as to the actual nature of the estate (ie, whether an asset was beneficially owned by the deceased), and may also consider it necessary to make a determination of the extent of the deceased’s estate (ie, $20 million or $40 million), before determining whether the deceased had the capacity to understand the extent of the property of which he was disposing through the various wills being propounded in this matter.

96. For these reasons, I am of the view that the various findings that are sought in relation to the Partnership Issues ought to be made at the same time as the Probate Issues.

97. In arriving at this conclusion, I am of course not in any way limiting or otherwise directing the approach any Court ultimately hearing the Probate Issues may take in determining those issues. Whomever hears this matter may well accept the submissions made by the first defendant that the Court is not required to make any determination of land ownership at the time of determining whether the deceased possessed testamentary capacity. However, such a determination ought only to be made when the Court has regard to the whole of the circumstances, which will require the Court to have before it all of the relevant evidence. For that reason, I do not wish to deprive any judge hearing the Probate Issues of any relevant evidence by making an order for the separate and later hearing of the Partnership Issues.

98. Given the connected nature of the Partnership Issues and the Probate Issues, I therefore do not consider that a just determination of the proceedings would be possible should they be listed separately.

99. In addition to this consideration relevant to the substance of the proceedings, other ancillary considerations support the conclusion that the Probate Issues and Partnership Issues ought to be heard at the same time. These considerations include:

100. avoiding duplication in the conduct of this matter, including the need to cross-examine witnesses twice; and

101. avoiding the inherent fragmentation of this matter, associated with separating hearing dates, in circumstances where doing so would not obviously bring the matter to an end.

Why the hearing commencing on 7 October 2025 should be vacated

100. Relevant to the issue of whether the 7 October 2025 hearing date should be vacated, I accept the submission of the plaintiff that the matter was not ready to take a hearing date when it did, and that 10 days will not be sufficient to hear all of the issues to be determined in the matter, even if the proposed fourth cross-claim were not considered at the same time. The inevitable consequence of my determination the Probate Issues should be heard at the same time as the Partnership Issues, combined with a finding that 10 days will not be sufficient to deal with all of those issues, leads inexorably to a conclusion that the hearing commencing on 7 October 2025 must be vacated.

101. The fact that a hearing might not finish within the days allocated to it is a factor other judges of this Court have taken into account in favour of adjourning a final hearing to a later date: see, eg, Tomanovic Multiown Pty Limited v Interlux Projects Pty Limited [2020] NSWSC 48 (Parker J); Donald v Rail Corporation of New South Wales [2015] NSWSC 1057 at [6] (Campbell J).

102. The proceedings were listed for hearing on 7 October 2025, for 10 days, in circumstances where the listing judge believed that, but for an expert report, the evidence in the proceedings was closed. This is now not the case, given that leave has been granted to file two further cross-claims, both of which concern issues that, to me, will have some bearing on other issues in the proceedings. The first defendant will likely need to seek leave to put on further evidence in support of the third and proposed fourth cross-claims. Additionally, the plaintiff (and perhaps even the second and third defendants) will need to be given the opportunity to issue subpoenas and the like, as well as be given the opportunity to put on their own evidence, in reply to at least the proposed fourth cross-claim.

103. Further, there are already two family provision claims filed in relation to the estate of the deceased (the second and third defendants’). Again, the listing judge does not seem to have been aware of these proceedings. The family provision claims already on foot are not being case managed with the substantive proceedings, and the status of those proceedings (including the status of the filing of evidence) is unknown. The draft Trial Plan, prepared by senior counsel for the plaintiff, appears to have included the hearing of the family provision claims in his 15-day estimate. I observe it is common practice for probate and family provision matters to be heard together, even in circumstances where the family provision claim may ultimately not be pressed.

104. Of course, those family provision claims are not the proceedings listed before me for hearing. In any event, based on the evidence before me and the submissions I have received, it appears that in all likelihood the proceedings in relation to the Probate Issues could still not be completed in 10 days, even if an order for the separate hearing and determination of the third and proposed fourth cross-claims were to be made.

105. In order to accommodate this, the first defendant has raised for the Court’s consideration that the hearing of all of the issues in dispute take place in four separate tranches (see [52]) with the 10-day listing comprising the first of the four traches. However, the separation of hearing dates, in particular over three or four tranches, would inevitably lead to the same witnesses needing to be cross-examined twice, as well as other duplications. This will inevitably increase the costs in the proceedings, but also potentially cause stress and inconvenience to witnesses, together with creating inconvenience for the Court in having to arrange and manage listings for the various and connected traches of hearings.

106. The deceased died last year on 29 April 2024. The substantive proceedings were commenced later in the year – the SOC was filed on 28 June 2024, the SOCC in the first cross-claim was filed on 13 August 2024 and the SOCC in the second cross-claim was filed on 29 August 2024. By contrast, the Partnership Issues have only been pleaded and particularised for the first time in recent months (the SOCC in the third cross-claim was filed on 1 May 2025 and the Notice of Motion in relation to this proposed fourth cross-claim was filed on 11 July 2025). I am of the view that these proceedings, as a whole, do not fall into the class of proceedings where the proceedings had been commenced years before, and where lengthy delay is an issue perhaps weighing in favour of keeping the hearing date. By way of contrast, see Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 at [6] (Price AJA).

107. The first defendant opposes the vacation of the 7 October 2025 hearing date. But it is the first defendant who has, for the first time, pleaded and particularised the Partnership Issues only in recent months.

108. Moreover, the first defendant’s own submissions accept that the SOC and the proposed fourth cross-claim involve the same witnesses, who will be able to give evidence as to the Partnership Issues as well as the Probate Issues (ie, lay person capacity observations). As it was put orally, “in an ideal world”, all of the claims would be heard at the same time. This consideration does not only reinforce my conclusion above that all issues in this case must be heard together. It also militates in favour of vacating the current hearing dates as the first defendant has simultaneously accepted the plaintiff has insufficient time to meet the proposed fourth cross-claim. If the proposed fourth cross-claim must be heard with the rest of this matter, as I think it must, and the plaintiff will not be ready to meet the case alleged in the proposed fourth cross-claim by 7 October 2025, these factors taken together weigh in favour of vacation.

109. I accept the submissions of the first defendant that she is 79 years of age and is anxious about the proceedings. However, whilst this is an issue that might militate towards keeping the 7 October 2025 hearing date, the factors militating against keeping the date are overwhelming. Further, even on the favoured approach of the first defendant, the hearing of the third and proposed fourth cross-claims is to be deferred until after the hearing of the Probate Issues, where the first defendant will, in any event, be exposed to “continuing delay” with respect to the resolution of all of the issues.

110. Similarly, having regard to the first defendant’s submission that continued delay in the hearing of the proceedings is affecting the business of the family company, Tabain Storage Pty Ltd, it is not clear how an initial hearing of the Probate Issues, and the later hearing of the associated issues over four tranches of listing dates would not itself be productive of continuing delay in any event. Moreover, it might be considered that the determination of the Partnership Issues will be the more critical issue for the company, which the first defendant submitted ought to be deferred.

111. To conclude, I am of the view that the overriding purpose of the CPA (s 56), the objects of case management (s 57), and the dictates of justice (s 58) together point in the direction of the Court making an order for the 7 October 2025 listing to be vacated.

Costs

112. While costs are always in the discretion of the Court, the starting point for interlocutory applications, such as this Motion, are that the costs of the Motion should be costs in the cause: UCPR r 42.7(1), Wilson v Gillies (No 2) [2020] NSWSC 658 at [11] (Rees J); Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [3] (Richmond J).

113. I was not otherwise addressed on the issue of costs and do not see any reason to depart from the starting point identified above.

114. In making this decision, I have had regard to the first defendant’s success in relation to the outcome of the hearing of the Motion, however I have also had regard to the consequences of her decision to file the Motion, and the associated issues that were brought to light as a consequence, including my finding in relation to the inadequacy of the initial listing of the matter for 10 days only.

Orders

115. For the reasons set out above, I make the following orders:

116. Leave is granted to the first defendant to file and serve a Statement of Cross-Claim in the fourth cross-claim in the form contained at pages 32-42 of the affidavit of Peter Douglas McLachlan sworn 7 August 2025.

117. The first defendant is directed to file the fourth cross-claim referred to in order (1) within 7 days of these orders.

118. The listing of this matter for 10 days commencing on 7 October 2025 is vacated.

119. The matter is listed before the Registrar in Probate for directions on 9 September 2025.

120. The costs of the first defendant’s notice of motion filed 11 July 2025 be costs in the cause.

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