Jewish National Fund of Australia Ltd v Bar-Mordecai

1. [1]

   In each of these proceedings the plaintiff seeks possession of an apartment in a building at 79 O'Donnell Street, North Bondi. In proceedings 2019/96140 the apartment is Unit 5 and in proceedings 2019/162728 the apartment is Unit 7.

2. [2]

   In each case the defendant is alleged to be in occupation of the unit. In each case the defendant has filed a defence to the claim. In each of the proceedings the defendant has sought leave by notice of motion to file an amended defence and a cross-claim against the plaintiff, and in proceedings 2019/96140 he names four other proposed cross-defendants.

3. [3]

   The defendant was declared to be a vexatious litigant by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2004] NSWSC 1277. In each case, therefore, he needs leave pursuant to the Vexatious Proceedings Act 2008 (NSW), as well as leave under s 64 of the Civil Procedure Act 2005 (NSW) and Part 19 of the Uniform Civil Procedure Rules 2005 (NSW).

4. [4]

   Different issues arise in each of the proceedings, but there is considerable crossover between the proceedings, not the least reason for which is that the plaintiff’s title to the properties and the defendant’s basis for claiming a right to occupy and to obtain leave to file the amended pleadings derives from a common factual background. The parties sought an order, which I made, that evidence in each of the proceedings be evidence in the other.

5. [5]

   In short, the prior owner of Unit 5 was Elias Cohen and the prior owner of Unit 7 was his sister, Seemah Morris. In his will, Elias Cohen left Unit 7 to Ms Morris for life with remainder to the plaintiff. In her will, Ms Morris left both properties to the plaintiff. The defendant claims to be the first cousin once removed of Mr Cohen and Ms Morris. He claims that shortly before her death Ms Morris gifted both properties to him. At the time of her death, the gifts were not completed in the sense that the plaintiff remained the registered proprietor, but the defendant claims in his proposed pleadings Ms Morris did everything in her power to perfect the gifts.

6. [6]

   At various places in his pleadings, affidavits and submissions, the defendant makes scurrilous and baseless allegations against various persons. Some of these persons are neither parties nor prospective parties to the proceedings. I do not consider that it is appropriate to identify them by their names and they will be referred to in an anonymised way in this judgment. Regrettably, it is necessary to refer to two solicitors and two other persons, Samuel Benjamin and Leonard Mahemoff, by their names to make sense of the narrative. One of the solicitors, Peter White, and Mr Benjamin are named by the defendant as prospective parties. The other solicitor, Deborah Rutstein, and Mr Mahemoff have both sworn affidavits in the proceedings.

The proceedings

1. [7]

   On 18 October 2013 Elias Cohen died. He had made a will dated 8 January 2013, of which probate was granted to Seemah Morris on 4 January 2014. At the time of his death, Mr Cohen was the registered proprietor of Unit 5, 79 O'Donnell Street, North Bondi. In clause 4 of his will he gave a life estate in that property to Ms Morris and the estate in remainder to the plaintiff.

2. [8]

   By a transmission application dated 14 August 2017, Ms Morris became the registered proprietor of a life estate and the plaintiff of an estate in remainder.

3. [9]

   On 30 January 2019 Ms Morris died.

4. [10]

   In the plaintiff’s statement of claim filed 27 March 2019 all of those matters were alleged and, in a defence filed 8 April 2019, the defendant admitted all of those matters. The plaintiff also asserted that from about 30 January 2019 it became entitled to possession of the property, and that from that time the defendant commenced occupation of the property. The defendant denied that the plaintiff was entitled to possession but did not admit that he had been in occupation of the property.

5. [11]

   On 30 August 2019 Hamill J made the following order:

6. [12]

   On 11 September 2019 the defendant filed a notice of motion seeking those three orders and, notwithstanding that no leave was given to do so, he sought six orders that the plaintiff and various employees be penalised under various provisions of the Crimes Act 1900 (NSW) for what the defendant alleged were crimes committed by them including conspiracy, dishonesty and deception. Further, without leave the defendant sought an order that the Court grant leave to him to issue subpoenas to St Vincent’s Hospital Darlinghurst, St Vincent’s Hospice Darlinghurst, Dr Phillip Redelman and Dr Tom Glaser “to prove clinically that the late Elias Cohen suffered from severe dementia in 2012”. He also sought the following orders:

7. [13]

   The paragraphs of the defence filed 8 April 2019 which do other than admit, not admit or deny paragraphs in the statement of claim are these:

8. [14]

   The defendant’s proposed amended defence admits paragraphs 1, 3 and 4 of the statement of claim, as well as paragraph 6 but with a qualification. In that way the defendant seeks impliedly to withdraw the admissions to paragraphs 2 and 5 of the statement of claim. Those paragraphs pleaded that Elias Cohen made a will dated 8 January 2013 of which probate was granted to Ms Morris on 14 January 2014, and that clause 4 of the will “divested” [scil. devised] a life estate in the property to Ms Morris with the estate in remainder to the plaintiff.

9. [15]

   The defendant, in lieu of those paragraphs, pleads as follows:

10. [16]

    Paragraph 6 of the statement of claim alleges that by a transmission application dated 14 August 2017 Ms Morris became the registered proprietor of a life estate and the plaintiff of an estate in remainder. The defendant admits that paragraph, but says that the plaintiff was not entitled to an estate in remainder because Keren Kayemeth Leisrael, which was a different legal entity, was the inheritor of the property and not the plaintiff. The remainder of the proposed amended defence merely repeats a number of those allegations in answers to other paragraphs of the statement of claim.

11. [17]

    The proposed cross-claim which the defendant initially sought to file was annexed to an affidavit he swore on 30 November 2019. On the morning of the hearing of his motion, the defendant said that the form of the proposed cross-claim that he wished to file was an annexure to an affidavit he had sworn on 6 March 2020. That form of the cross-claim differs only in one respect from the earlier form; the second sentence of paragraph 15 is omitted in the new iteration.

12. [18]

    The proposed cross-claim names not only the plaintiff as a cross-defendant but also Keren Kayemeth Leisrael (second cross-defendant) and Yael Shudnow nee Musleah (third cross-defendant). In the section headed “Parties to the cross-claim”, Peter White is named as a fourth cross-defendant. However, in the section headed “Details about cross-defendants that are new parties”, Samuel Benjamin is said to be the fourth cross-defendant and Peter White is said to be the fifth cross-defendant.

13. [19]

    Yael Shudnow was one of two executors of Seemah Morris’s will. Yael Shudnow was also one of two alternative executors of Elias Cohen’s will, in the event that the named executor, Seemah Morris, was unable or unwilling to act. The other alternative executor was the president of the plaintiff. Samuel Benjamin was the other executor of Seemah Morris’s will. Peter White was the defendant’s solicitor who struck out the defendant’s name on the two transfers executed by Ms Morris.

14. [20]

    The general import of the proposed cross-claim can be discerned from the relief claimed which is as follows:

15. [21]

    In the prayers for relief and in the pleading, there is no mention of a fifth cross-defendant. It seems clear that the “Fourth Cross-Defendant” mentioned in prayer 13 is Peter White because there is reference to the striking out of the defendant’s name on the two transfers executed by Ms Morris. Whether he or Mr Benjamin is the intended “Fourth Cross-Defendant” referred to in prayer 12 is unclear. Neither Mr White nor Mr Benjamin is mentioned anywhere in the pleading itself. That is sufficient in itself to refuse leave to file the cross-claim against both of those parties because no cause of action is disclosed.

16. [22]

    It is not necessary to set out the pleading. It is sufficient to note the headings within it. They, together with the relief claimed, fairly clearly indicate what the cross-claim is asserting and seeks to achieve. Those headings are:

17. [23]

    At the hearing of the motion, the defendant said that he was not pursuing orders 4 to 9 of the orders sought in his notice of motion. Those paragraphs concerned the claims that various persons be penalised for breaches of the criminal law.

18. [24]

    The defendant relied on five affidavits in chief in support of his notice of motion. The plaintiff relied on a number of affidavits setting out the background, including its relationship with Mr Cohen and Ms Morris, and explaining what the plaintiff was, including its relationship to Keren Kayemeth Leisrael. The defendant filed an affidavit in reply, annexing the updated iteration of the cross-claim he wished to file. The affidavit also, unnecessarily, repeated all of the information required by s 14(3) of the Vexatious Proceedings Act which had been included in an earlier affidavit.

19. [25]

    Much of the material in the defendant’s affidavits was repetitive. Considerable portions of it involved slanderous and scandalous allegations against a number of persons including the Prothonotary. Objection was taken by counsel for the plaintiff to what was said to be inadmissible material in the affidavits. Bearing in mind the strictures in s 56 of the Civil Procedure Act 2005 (NSW), I said that I did not intend to go through each of the affidavits determining which parts contained admissible material and which parts did not. I indicated that I would read all of the material, according appropriate weight to the material dependent on whether or not it was admissible or in appropriate form. I indicated to the defendant that I would not take into account any of the paragraphs that contained the slanderous and scandalous material.

20. [26]

    The defendant filed submissions dated 3 September and 21 November, and two separate submissions dated 29 November 2019. In his affidavit of 2 December 2019 he said that he withdrew all of those submissions. On 5 December he filed submissions with regard to matters relating to s 192E of the Crimes Act. However, as noted earlier, he said at the hearing that he did not press those prayers for relief.

21. [27]

    He subsequently, and without leave to do so, filed further submissions on 28 February 2020, 2 March 2020 (two different submissions) and 5 March 2020 (two different submissions).

22. [28]

    Seemah Morris died on 30 January 2019 having made a will dated 27 July 2016 of which probate was granted to Samuel Benjamin and Yael Shudnow on 15 April 2019. Ms Morris was the owner of Unit 7 at 79 O’Donnell Street. By clause 4 of her will she left that property to the plaintiff, described as follows:

23. [29]

    On 15 April 2019 the property vested in the executors, and on 10 May 2019 by a transmission application, the plaintiff became the registered proprietor of the property.

24. [30]

    In his defence to that statement of claim the defendant admitted all of those matters, although he said that on 22 January 2019 Ms Morris gifted Unit 7 to him.

25. [31]

    The plaintiff also alleged that from about 30 January 2019 the defendant had been in occupation of the property. The defendant answered that by saying that he had been in part time occupation since 8 December 2018 to the time of filing his defence on 14 June 2019.

26. [32]

    The defendant filed a notice of motion on 16 September 2019 seeking leave pursuant to ss 14-16 of the Vexatious Proceedings Act to file and rely on a cross-claim in these proceedings and seeking leave for the filing of that cross-claim and an amended defence. Unlike in proceedings 2019/96140 it does not appear that any leave was given to the defendant to file that notice of motion. The notice of motion sought similar orders for the penalisation of the plaintiff for acting contrary to ss 192B, 192D, 192E and 342 of the Crimes Act and for bribing Peter White to pervert the course of justice. The notice of motion also sought leave for the defendant to be able to issue subpoenas to Telstra to produce all telephone calls made by a number of persons “to prove that the plaintiff bribed Mr Peter White to pervert the course of justice”.

27. [33]

    The defendant’s existing defence, in addition to admitting the matters I have detailed, asserts that he is entitled to Unit 7 because it was gifted to him by Ms Morris and that she took all necessary steps to perfect that gift to him before her death. Those steps alleged included the following:

28. [34]

    The defence, alleges that the solicitor, Peter White, lied to the defendant, was negligent, breached his fiduciary duty and misconducted himself while acting as the defendant’s solicitor. It does not, however, plead the material facts showing what the acts and omissions of Mr White were that enable those allegations to be made. The defence then went on to make allegations that the plaintiff had “swindled” Ms Morris of Mr Cohen’s estate.

29. [35]

    The defendant’s proposed amended defence purports to withdraw the admissions made by him that Ms Morris made a will of which probate was granted to the executors, by asserting that the will did not reflect Ms Morris’s testamentary intentions. It also sought to withdraw the admission that clause 4 of her will bequeathed the property to the plaintiff and that by a transmission application the plaintiff became the registered proprietor of the property. The latter is said to be because Keren Kayemeth Leisrael became the registered proprietor. That is plainly not so, and the allegation should probably be understood as saying that Keren Kayemeth Leisrael should have become the registered proprietor.

30. [36]

    The proposed defence then omits the pleading in the original defence that the defendant has the Enduring Power of Attorney of Ms Morris and had the authority to sign the transfer form to himself. It also withdrew the allegations against Mr White. The defence then purported to add a paragraph which asserted that Ms Morris’s executor, Mr Samuel Benjamin, wrongly disclosed her financial assets to an employee of the nursing home where Ms Morris resided, refused to return monies to Ms Morris, and refused to return her will to her so that she could revoke it.

31. [37]

    Some two weeks after I reserved my judgment in these matters, the defendant forwarded a letter to the Court giving notice that he withdrew the relief in paragraphs 1 and 3 of his notice of motion. Those prayers sought leave under the Vexatious Proceedings Act and generally to file a cross-claim.

32. [38]

    The defendant relied upon six affidavits in chief sworn by him in these proceedings. The plaintiff relied on a number of affidavits including one from Mr White and one from Ms Rutstein. Shortly before the hearing, and without any direction of the Court permitting him to do so, the defendant forwarded to the Court a folder containing seven further affidavits, six of which the defendant swore, and one from a Julia Zhu. These affidavits were said to be in reply to affidavits filed and served by the defendant. In the circumstances, I permitted the defendant to rely on all of the affidavits except that of Julia Zhu. Not only was that affidavit not an affidavit in reply, but its content consisted entirely of hearsay conversations between the defendant and Ms Zhu.

33. [39]

    As with the other proceedings, the evidence in each affidavit after the first was largely repetitious of the material in the preceding affidavit(s). Much of what appeared in the affidavits alleged criminality including bribery and conspiracy, as well as other wrong-doing against the plaintiff and its employees, Mr White, Mr Benjamin, Ms Rutstein, the Montefiore Home where Ms Morris resided and its employees, as well as the Prothonotary and deputy registrars of the Court. Very little of the affidavits contained admissible evidence by reason of its form, its conclusionary nature and the expression of the defendant’s irrelevant beliefs.

34. [40]

    The defendant relied on five sets of submissions filed between 1 November 2019 and 24 December 2019. Shortly before the hearing the defendant served and sought to rely on six further sets of submissions, said to be in reply to affidavits filed by the plaintiff. As with the affidavits, the material in those submissions was largely repetitious of what had been said previously. However, because the litigant was appearing for himself, I gave him leave to rely on all of those submissions.

Legislation

1. [41]

   The Vexatious Proceedings Act 2008 (NSW) relevantly provides:

Application for recusal

1. [42]

   At the outset of the hearing of the defendant’s notices of motion, the defendant asked me to recuse myself, as a result of a judgment I had given involving him on 3 March 2011: Attorney -General of NSW v Bar -Mordecai [2011] NSWSC 100. The defendant asserted that I had adjudicated two matters involving him where my determinations were found to be wrong. On that basis the defendant said that I lacked objectivity to adjudicate on any matter involving him.

2. [43]

   I am only aware of one matter in which I adjudicated, being the matter identified above. In that matter I was asked to answer, on a separate question application, two questions formulated by the Attorney-General in relation to the procedure to be followed involving ss 14-16 of the Vexatious Proceedings Act. The questions involved a construction of the Act. The Court of Appeal took a different view of s 14 of the Act. In giving its judgment, the Court of Appeal said that the questions formulated by the Attorney-General which I answered were inapt: Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207. My determination was adverse to the defendant only inasmuch as I determined that leave was necessary for the filing of additional evidence to the affidavit required by s 14(3) of the Act. The Court of Appeal said leave was not necessary.

3. [44]

   I informed the defendant that I would not recuse myself because the matter I adjudicated concerned only procedural and construction matters, and did not involve the determination of credit or substantive issues.

Requirements of the Vexatious Proceedings Act

1. [45]

   No consideration was given by the parties to the application of s 14 of the Act in relation to the notices of motion. The term “proceedings” is defined in s 4 as including “any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings”. Further, “institute” under s 5 includes “the taking of a step”. In that way the defendant needed to make an application under s 14 as a preliminary to filing the present notices of motion.

2. [46]

   It is not clear from the record of proceedings before Hamill J whether his Honour undertook that exercise before making the orders that he did. But, in any event, no such orders were made in proceedings 2019/162728.

3. [47]

   In fairness to the defendant it should be said that in each of the proceedings he filed an affidavit on 30 November 2019 which, on its face, complies with s 14(3). However the affidavit, contrary to s 14(4), was served on the plaintiff.

4. [48]

   In the light of the way the applications were conducted by the parties, I do not consider that any failure in that regard should deprive the defendant of his right to make the applications in the notices of motion. The parties seem to have accepted that, in the first instance, I was conducting the hearing referred to in s 16 of the Act, and that I had to apply the requirements of s 16(4) to the evidence and submissions heard at the hearing. If that gateway was passed, I was then considering the motions having regard to general principles relevant to amendment of pleadings and the issuing of subpoenas by litigants in person. It is also clear from the Court of Appeal’s decision in Bar-Mordecai at [63] that the defendant is entitled to rely on evidence in addition to the s 14(3) affidavit.

The defendant’s evidence

1. [49]

   As I have said earlier, much of the material in the defendant’s affidavits was in inadmissible form. However, for the purpose of understanding what the defendant seeks to achieve on his motions, I will summarise it generally without regard to its admissibility.

2. [50]

   The defendant says that Elias Cohen did not have testamentary capacity when he executed his will. The basis for that is said to be a mental state examination which the defendant conducted of Mr Cohen in 2012. The defendant qualified as a medical doctor and practised for some years until he was struck off the medical roll in 2000. The defendant said that he only recorded the results of the examination in November 2019. He diagnosed Mr Cohen as suffering from dementia.

3. [51]

   It is on that basis the defendant says that probate of Mr Cohen’s will should be revoked, and it should be held that he died intestate because he did not have the capacity to make any will. The defendant says that he should be granted letters of administration on intestacy. On intestacy, the defendant says that the whole of his property would have passed to Ms Morris as his only living relative who would take on intestacy. The defendant says that in those circumstances he would be entitled to both Units 5 and 7 on the basis that Ms Cohen gave him both properties in December 2018. It is in that way the two sets of proceedings are intertwined.

4. [52]

   The defendant’s account of the gift by Ms Morris is that she gave to him two transfers signed by her. He said they had been signed in front of a person called Paula Carew. Ms Carew’s signature did not appear on the transfers. For that reason, the defendant consulted Peter White. He asked Mr White to transfer the properties to him, but Mr White said that he needed to witness Ms Morris’s signatures.

5. [53]

   The defendant then drove Mr White to the Montefiore home where Ms Morris lived. The defendant did not go into the home with Mr White.

6. [54]

   The defendant then gives inadmissible evidence about what is supposed to have occurred. He claims that Ms Morris’s former solicitor, Deborah Rutstein, rang Ms Morris and told her not to transfer the properties to the defendant. He claims that Ms Morris signed the transfers again. He claims that Mr White rang Ms Rutstein to obtain the certificates of title to the units. He claims that Ms Rutstein then rang someone at the Montefiore home to tell them that Mr White had requested the certificates of title. He claims that Ms Rutstein rang someone at the plaintiff to inform them that Mr White had requested the certificates of title. He claims that someone from the plaintiff then rang Mr White and arranged for him to accept a bribe to make the two transfers null and void.

7. [55]

   The Defendant claims that he went to see Mr White the next day to obtain the transfers. The defendant says that he said to Mr White: “You failed to sign as a witness the two transfer forms”, to which Mr White replied, “Give them to me and I will sign them as the witness”. The defendant says that Mr White took the transfer forms and drew a line through the defendant’s name and address in the box entitled “Transferee”.

8. [56]

   Mr White sent a letter to the defendant on 23 January 2019 saying:

9. [57]

   The defendant also put into evidence a letter he received from Mr White dated 8 April 2019 which was said to be in response to letters written by the defendant to Mr White of 20 and 25 March 2019. The letter relevantly said:

Other evidence

1. [58]

   Mr White swore an affidavit in the proceedings 2019/162728. He said that when the defendant consulted him and showed him the two transfers, each of them had a signature below the space for “Signature of Transferor” but there was no witness signature. He said the particulars of the land in each transfer were blank and the name of the “Transferee” was also blank. Mr White said that at some stage he filled in the particulars of the land and the name and address of the defendant in the box headed “Transferee”.

2. [59]

   Mr White said that when he went to the Montefiore home and spoke to staff at reception, he was directed to the deceased’s room which was located in the Dementia Care Unit. During his conference with Ms Morris, Mr White said to her:

3. [60]

   Ms Morris said:

4. [61]

   Mr White said that at no stage during his conversation with Ms Morris did she name the defendant as a beneficiary of her assets. Mr White asked her if she had a will setting out who she wanted to leave her assets to, and Ms Morris replied:

5. [62]

   Mr White said that he realised at that point that Ms Morris did not want to transfer her assets to the defendant and he crossed out the defendant’s name in the “Transferee” section of the transfers. At some stage during the conference, Ms Morris’s telephone rang, and she told Mr White that it was her solicitor Ms Rutstein. Ms Morris provided him with Ms Rutstein’s information.

6. [63]

   The following day Mr White contacted Ms Rutstein. He said to her that he understood she acted for Ms Morris. He told her that he went to see Ms Morris at Montefiore the day before, after the defendant had asked him to witness re-execution of the transfer forms giving her properties to the defendant. Ms Rutstein told Mr White that she had prepared two wills for Ms Morris and that the defendant had not been named as a beneficiary under either of those wills.

7. [64]

   Subsequently, Mr White received a telephone call from the defendant who asked him to lodge caveats on Ms Morris’s property to protect his interests. Mr White said he could not do that and he was unable to assist the defendant further. Later that day, the defendant came in to Mr White’s office. Mr White handed to the defendant the letter he had written of 23 January together with his tax invoice.

8. [65]

   Mr White annexed to his affidavit two letters of the defendant of 20 and 25 March 2019 to which Mr White replied in his letter of 8 April 2019. Those letters generally accused Mr White of acting against the defendant’s instructions and acting negligently in having crossed out the defendant’s names on the transfers.

9. [66]

   In his affidavit Mr White said that he believed that at all times he was acting as Ms Morris’s solicitor.

10. [67]

    Ms Rutstein swore an affidavit in proceedings 2019/162728. She first gave evidence about the preparation and execution of Ms Morris’s will of 27 July 2016 which was ultimately admitted to probate. Immediately after that time Ms Morris instructed Ms Rutstein to obtain all her significant documents including title deeds from persons or organisations who Ms Morris thought were holding the documents on her behalf. One of the documents Ms Rutstein received was a copy of the will of Mr Cohen. It was only when she saw that will that she came to know that Ms Morris only had a life interest in Unit 5.

11. [68]

    Thereafter Ms Rutstein had little contact with Ms Morris until late October 2018. Ms Morris telephoned her and said that she wanted to get out of the Montefiore home. Ms Rutstein visited her there on 1 November 2018 and noted that her room was in the Dementia Unit.

12. [69]

    Ms Rutstein told her that apart from wanting to get out of the home, she wanted to change her will to give the proceeds of the contents of Mr Cohen’s unit to a friend in Israel who would give the money to undernourished and poor children. She also wanted to give the proceeds of the contents of her unit to the widows of servicemen and those who died in terrorist attacks.

13. [70]

    When Ms Rutstein saw Ms Morris almost three weeks later they discussed the will. Ms Morris said she did not want Yael [Shudnow] to be her executor anymore because she was one of the people responsible for keeping Ms Morris in the home. When Ms Rutstein asked if she had anyone else in mind to act with Sam Benjamin, Ms Morris suggested another person from the Sephardi Synagogue.

14. [71]

    She then said that she wanted to give a number of pecuniary legacies totalling some $195,000 to various persons and Jewish institutions, and said she wanted anything left over to go to the Guide Dogs. She still wanted the units to pass to the plaintiff.

15. [72]

    Ms Rutstein said that during that meeting she started having doubt about Ms Morris’s decision making ability because she wanted the Guide Dogs to be the residuary beneficiary in place of the Sephardi Synagogue, and it was the first time Ms Rutstein had heard her mention the Guide Dogs. Ms Rutstein was not aware that Ms Morris had ever been involved or associated with them. In the time Ms Rutstein had known her Ms Morris was always concerned to leave her estate to Jewish interests.

16. [73]

    On about 28 December 2018 Ms Rutstein received a telephone call from Ms Morris asking her to remove Sam Benjamin as an executor, but when Ms Rutstein asked if she had anyone else in mind she said she couldn’t think of anyone.

17. [74]

    On about 9 December 2018 Ms Rutstein received a typed up letter containing Ms Morris’s handwriting and signature giving notice that Ms Rutstein’s legal services were no longer required, and containing a directive that Ms Rutstein was not to visit her again at the Montefiore home. The following day she received a telephone call from Ms Morris saying that she wanted to collect the will that Ms Rutstein had been working on. Later that day the defendant came to Ms Rutstein’s home office and asked to collect Ms Morris’s draft will. Ms Rutstein refused to give it to the defendant but went to speak to Ms Morris who was in the defendant’s car. She gave her the draft will and Ms Morris wrote a cheque for her fees.

18. [75]

    Ms Rutstein said on about 22 January 2019 she received a phone call from a solicitor named Peter White. Mr White said that Ms Morris had told him that Ms Rutstein held the title deeds to her two units. Mr White said that the defendant and another woman had come to see him saying that Ms Morris wanted to transfer the units to the defendant. Ms Rutstein said to Mr White:

19. [76]

    On 23 January 2019 she received a phone call from a Mr Ganon at the Public Guardian’s Office asking if she would be prepared to be Ms Morris’s lawyer for the purpose of an urgent applicant for financial management orders.

Determination

1. [77]

   In relation to Unit 5, to succeed on his cross-claim and show that he has an entitlement to the unit, it would be necessary for the defendant to have the probate of Elias Cohen’s will revoked, he would have to prove that Elias Cohen died intestate, and he would have to prove that Ms Morris did all within her power to perfect the gift of that unit. In relation to unit 7, the defendant would similarly have to prove that Ms Morris did all within her power to perfect the gift.

2. [78]

   The defendant faces a number of difficulties in this regard. First, it is entirely inappropriate in proceedings seeking possession against the defendant for a cross-claim to be brought to obtain the revocation of a grant of probate. Any application for revocation of a grant would need to be made in separate proceedings by the filing of a statement of claim, presumably naming the executors of Mr Cohen’s estate as defendants: Pt 78 r 48 Supreme Court Rules 1970 (NSW).

3. [79]

   Secondly, the statement of claim must allege facts that, if proved, would show that the present defendant has standing to commence those proceedings: SCR Pt 78 r 48. In Gertsch v Roberts; The Estate of Gertsch (1995) 35 NSWLR 631 Powell J (as his Honour then was) said at 634:

4. [80]

   In Gardiner v Hughes [2017] VSCA 167, the Victorian Court of Appeal (McLeish JA, Tate and Kyro JJA agreeing) said:

5. [81]

   Mr Cohen made a number of wills prior to the will now sought to be challenged by the defendant. Those wills were made (in reverse order) on 27 March 2012, 16 August 2010, 5 August 2010, 25 May 2009 and 27 March 2003. All of those wills were prepared by lawyers acting for Mr Cohen. In none of those wills was any gift made to the defendant.

6. [82]

   There was no evidence from the defendant relating to Mr Cohen’s capacity to make any of those earlier wills, even if the mental state examination he claims to have conducted in 2012 was admitted into evidence. The highest the evidence goes is a statement purporting to be part of the mental state examination that Mr Cohen was born with a low IQ, but that information was said by the defendant to come from Ms Morris who, in turn, obtained the information from her mother. In any event, the defendant does not plead in his proposed cross-claim that these earlier wills are challenged by the defendant, or that they are susceptible to challenge.

7. [83]

   Even if all of those wills were open to challenge, it is clear from the evidence that the defendant’s familial relationship with the deceased is not a relationship recognised by the laws of intestacy.

8. [84]

   When I pointed out the defendant’s lack of standing to challenge Mr Cohen’s probate, the defendant appeared to accept that the only basis he could put forward for endeavouring to do so was that he was a whistle blower and that, in the circumstances, it was morally wrong for the probate not to be revoked.

9. [85]

   Thirdly, the only evidence put forward by the defendant to suggest that Mr Cohen lacked testamentary capacity is an asserted examination that the defendant himself conducted in 2012 but made no notation of until, it would seem, the present proceedings commenced. The defendant could not be regarded in the circumstances as an expert witness, partly because of his lack of qualifications as a psychologist or a psychiatrist, partly because at the time of the examination he was struck off as a medical practitioner and, significantly, because he has a substantive interest in the outcome. I note that the evidence is not put forward as expert evidence because there is no reference to its having been prepared in accordance with the expert witness code of conduct.

10. [86]

    Fourthly, the test for determining testamentary capacity is found in Banks v Goodfellow (1870) 5 QB 549. In that case, Cockburn LCJ said at 565:

11. [87]

    Fifthly, even if the defendant was able to demonstrate that Mr Cohen died intestate with the result that his property, including Unit 5, passed to Ms Morris absolutely, the defendant would need to establish that he has a right to that property as a result of Ms Morris’s imperfect gift of it to him. The gift was imperfect at law in the sense that the defendant had not become the registered proprietor of the land. The issue is whether the gift was complete in equity.

12. [88]

    In Corin v Patton (1990) 169 CLR 540 Mason CJ and McHugh J said at 559-560:

13. [89]

    In Stone v Registrar of Titles [2012] WASC 21 Simmonds J said:

14. [90]

    Although the defendant pleaded in his proposed cross-claim in proceedings 2019/96140 that Ms Morris completed all the prerequisites to make the gift complete, he accepted in his oral submissions that he could not show that Ms Morris actually requested Ms Rutstein to return the certificates of title to both units which she held. The following exchange occurred:

15. [91]

    The evidence of both Mr White and Ms Rutstein demonstrates that at no stage was a request made by anyone to Ms Rutstein to return the certificates of title to Ms Morris.

16. [92]

    Even if it is accepted that Ms Morris intended to make a gift of both Units 5 and 7, assuming that she believed that she owned Unit 5 absolutely, she did not do everything necessary for her to have done to effect a transfer of legal title to those units.

17. [93]

    Moreover, the defendant gave evidence that in December 2018, Ms Morris said to him:

18. [94]

    It is clear, therefore, that any gift in relation to unit 5 was conditional on the defendant establishing in Supreme Court proceedings that Ms Morris “had been swindled of [her] brother’s estate”. The defendant has never fulfilled the condition. This Court has never held that Ms Morris was swindled out of her brother’s estate. The gift of unit 5 fails on that basis also.

19. [95]

    Finally, in the case of unit 5, the defendant cannot demonstrate that he has the requisite interest to challenge Mr Cohen’s will by reason of the gift from Ms Morris. His right is only one to claim an order from the court for transfer of unit 5. The distinction between such a right and an interest sufficient to challenge a will was made clear in Whiteley v Clune and Anor The Estate of Brett Whiteley (19 March 1993, SCNSW Powell J, Unrep) and Poulos v Pellicer [2004] NSWSC 504.

20. [96]

    In Whiteley, the deceased’s wife had obtained an order from the Family Court after his death which gave her rights to certain assets from the deceased’s estate. She sought to be appointed as an administrator of the deceased’s estate on the basis of the Family Court order. Powell J (as his Honour then was) said:

21. [97]

    In Poulos, Windeyer J identified the issue in that case in these terms, at [1]:

22. [98]

    It was agreed that if the son inherited the whole estate from his mother, there would be a substantial sum of money out of which the Family Court would be able to make an order for the benefit of the wife. Justice Windeyer considered Whiteley and a number of other cases, and said:

23. [99]

    His Honour then discussed a number of other cases including Gertsch, and concluded at [24]:

24. [100]

    In the same way in the present case, the defendant’s interest is a claim for an order that the units be transferred to him on the basis that Ms Morris had done all within her power to perfect the gift of the units. His interest is conditional on that order being made, and it may not be made. It is not an interest in the estate of Mr Cohen.

25. [101]

    In relation to the defendant’s application to file a cross-claim in proceedings 2019/96140, the defendant does not demonstrate that there is a prima facie ground for bringing that cross-claim for the reasons I have given. In those circumstances I am obliged to dismiss the application pursuant to the provisions of s 15 of the Vexatious Proceedings Act. Even if the defendant did not need to overcome that hurdle, the position is that the proposed cross-claim does not disclose a reasonable cause of action. In such circumstances it would be futile to permit the defendant to proceed with it.

26. [102]

    As far as the proposed amended defence in proceedings 2019/96140 is concerned, the following matters lead to the conclusion that the proposed amendments should not be allowed. First, the proposed amended defence seeks to withdraw admissions earlier made.

27. [103]

    The principles associated with withdrawal of admissions are set out in Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, Santow J, 16 October 1996, unreported). In Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Rogers CJ Comm D held that even if admissions were made in error in some cases leave may not be given to withdraw them. His reliance in that case on Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Full Court of Supreme Court of Victoria, 8 April, 1988, unreported) suggests that if admissions are made by self-induced mistake that may justify a refusal to grant leave to withdraw them – see at 744D, 748G and 749. A failure to explain properly why the admissions was wrongly made may be fatal – see at 749-750; and see also Maile v Rafiq [2005] NSWCA 410 at [95]. Nor will it be essential for the other side to show prejudice if the admission is withdrawn: Coopers Brewery at 746.

28. [104]

    I also note what was said by Campbell J in Candy v GIO General Ltd [2013] NSWSC 810 at [53] to [64] about the change in approach which has taken place since the Civil Procedure Act 2005 (NSW) came into force, by reason of ss 56 to 58, coupled with the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Campbell J points out that some of the earlier statements, particularly by Santow J in Drabsch, minimising the weight that is to be given to court efficiency and case management may no longer be good law. I have also had regard to what was said by Ward J in Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115 at [307] - [312].

29. [105]

    The defendant has not provided any explanation of why he made the admissions that he did and what information was available to him, nor why the admissions that he made were not true.

30. [106]

    Secondly, the amended defence relies upon the claim that Mr Cohen’s will was invalid and the grant of probate was invalid. For the reasons I have earlier given, there is no evidence to justify either a claim being made on that basis or the present proceedings being defended on that basis.

31. [107]

    Thirdly, the defendant now wants to assert that the plaintiff is not the true or correct owner of the property because both the will of Mr Cohen and the will of Ms Morris left the units to Keren Kayemeth Leisrael. The evidence of the plaintiff (and indeed the wills on their face themselves) demonstrate that Keren Kayemeth Leisrael and the plaintiff are relevantly the same organisation. In any event, the plaintiff is the registered proprietor of the two units and the defendant does not have standing to challenge its right to possession of the land.

32. [108]

    Finally, the High Court said in Aon at [103]:

33. [109]

    I note that Queensland v J L Holdings (1997) 189 CLR 146 was a decision relied on by the defendant on the present applications. However, no explanation has been offered for why, some five months after the defendant filed and served his defence, the present application is brought to amend the defence. It is not discernible from any evidence relied upon by the defendant that the matters he now seeks to raise were not known to him at the time his original defence was filed.

34. [110]

    I would not, for this reason alone, have rejected the defendant’s application to amend, but the lack of any explanation is a further consideration leading to my determination that leave to amend should be refused.

35. [111]

    In relation to the proposed amended defence in proceedings 2019/162728, the defendant purports to withdraw admissions of the matters alleged in paragraphs 2, 4 and 6 of the statement of claim. For reasons earlier given, the defendant should not be permitted to withdraw those admissions.

36. [112]

    The defendant wishes to add sub-paragraph (p) in that proposed defence. Those sub-paragraphs are said to be the steps taken by Ms Morris to perfect her gift of the property to the defendant. Paragraph (p) reads as follows:

37. [113]

    The defendant should not be given leave to add this paragraph to the defence. He now accepts that Ms Morris did not do everything within her power to perfect the gift of the property. In any event, the matters contained in sub-paragraph (p) do not touch on steps that she needed to take to perfect the gift, and they otherwise do not provide any defence to the claim for possession of the unit.

38. [114]

    The proposed defence also purports to omit two sub-paragraphs relating to the defendant’s appointment as Enduring Power of Attorney and in relation to assertions of wrongdoing on the part of Mr White. It is not necessary for an amended defence to be filed for the defendant to withdraw reliance on those sub-paragraphs. In any event, they also fall within the group of paragraphs said to be steps whereby Ms Morris perfected her gift to the defendant.

39. [115]

    Minor changes are made to two other sub-paragraphs listed amongst those steps. Where the defendant accepts that the gift was not perfected, these amendments should not be permitted.

40. [116]

    Finally, no explanation is given for the delay and why the amendments are sought.

41. [117]

    In proceedings 2019/96140 the defendant also seeks in the notice of motion for leave to issue subpoenas “to prove clinically that the late Elias Cohen suffered from severe dementia in 2012”. It should be noted, first, that he sought leave from a Deputy Registrar in respect of three of those subpoenas, and was refused leave. His only remedy in that regard is to seek a review of the Deputy Registrar’s decision.

42. [118]

    However, leave should not be given either to issue the other subpoenas nor to review the Deputy Registrar’s decision because, not only would the issue of the subpoenas be futile, the defendant would be engaging in a fishing expedition. It would be futile because proof that Mr Cohen was suffering from dementia in 2012 would not throw any light on his position when he made all of the earlier wills I have detailed. It would result in a fishing expedition because the defendant does not have admissible evidence of a lack of testamentary capacity to justify a perusal of the medical records held by the various doctors and hospitals concerning Mr Cohen’s condition.

43. [119]

    In proceedings 2019/162728, the defendant seeks leave to issue subpoenas to Telstra in relation to a large number of phone calls made between phones belonging to Ms Morris, Ms Rutstein, Mr White, Mr Benjamin, Ms Shudnow, the Chief Executive of the plaintiff and the employee of Montefiore Homes to whom Ms Rutstein spoke. The issue of the subpoenas is said in the notice of motion “to prove that the plaintiff bribed Mr Peter White to pervert the course of justice and cross out the name of the defendant, as transferee”. There is no evidence that provides any basis for an allegation either that the plaintiff bribed Mr Peter White nor that they together or separately engaged in a perversion of the course of justice. Those matters are baseless conclusions the defendant has reached as a result of Mr White crossing out his name on the transfers.

44. [120]

    Mr White’s actions are only relevant to the cross-claim that was previously sought by the defendant to be brought in these proceedings, and also to his claim in the defence in those proceedings that Ms Morris had taken all necessary steps to perfect the gift. The cross-claim has now been abandoned, and the defendant has now abandoned his claim that Ms Morris perfected the gift.

45. [121]

    The basis, in any event, for the subpoenas appears to be a belief on the part of the defendant that Telstra actually records what is said in every telephone call made through its network. Such is not the case. If it was so, Telstra would be constantly in breach of s 7 of the Surveillance Devices Act 2007 (NSW).

46. [122]

    Leave to issue the subpoenas should be refused.

Conclusion

1. [123]

   I make the following orders:

   1. (1)

      In proceedings 2019/96140,

   2. (2)

      In proceedings 2019/162728,