Abraham v Goldberg (No. 2)

This is the Court’s second judgment in relation to the defendant’s motion of 9 February 2024 (“the motion”) seeking dismissal of the plaintiff’s proceedings. The background to the motion and the unfortunate history of these proceedings is set out in the Court’s first judgment given on 15 May 2025: Abraham v Goldberg [2025] NSWSC 473.

The defendant’s motion sought to dismiss the plaintiff’s proceedings (a) under Civil Procedure Act 2005, s 61(3) for failure to comply with the Court’s directions, (b) for failure to prosecute with due dispatch under Uniform Civil Procedure Rules 2005 (“UCPR”), r 12.7, and (c) under UCPR, r 13.4 as an abuse of process.

For the reasons explained in the first judgment, on 15 May 2025 the Court adjourned the motion with liberty to re-list, if the plaintiff defaulted further on the Court’s timetables or changed solicitors again. The costs of the motion were reserved. These orders were made in a context where the plaintiff had been guilty of substantial procedural defaults in the proceedings over a long period and had been granted several indulgences by the Court. The history of these defaults and indulgences is explained in the first judgment. But after the first judgment the plaintiff has defaulted fully again. The defendant re-listed the motion for determination. The plaintiff says that the defaults are explicable and excusable because of the circumstances in which they occurred. The defendant submits they are not.

The re-listed motion was heard on 26 February 2026. The Court was much assisted at that hearing by the preparation of evidence and submissions by the legal representatives on all sides. Mr J. Brown of counsel, leading Mr L. McIntyre, instructed by Fleming Law represented the plaintiff. Mr A.J. Grant of counsel, instructed by W K Cahill & Associates represented the defendant. Substantial evidence was filed on each side of this contest. It is not possible to cover anything like all the evidence relied upon by each side on the motion. The Court has endeavoured to focus upon the core facts and legal issues dividing the parties. The Court has the advantage of the explanation of the background set out in the first judgment to aid brevity in this judgment.

These reasons take up the narrative of events from about the time the motion was argued leading to the first judgment. Throughout this narrative the parties are referred to in the same way as they were in the first judgment. These reasons assume familiarity with the first judgment. Events, matters and things are referred to in both judgments in the same way.

Ms Abraham had claimed to be impecunious at the time of the first judgment. The Court was sceptical of that claim, especially as she had practised as a solicitor for 25 years.

On 15 May 2025 the orders with the Court’s first judgment directed that Ms Abraham file a detailed and informative Affidavit as to her present financial circumstances. Ms Abraham's Affidavit disclosed gross assets in the order of $11.28 million and liabilities in the order of $5 million (with net assets therefore of $6.28 million). This Affidavit also disclosed that Ms Abraham is the (sole) owner of a 6-bedroom, 7-bathroom, 4-car garage property on the Gold Coast in Queensland, and had recently sold her 4-bedroom, 3-bathroom property in the NSW Southern Highlands for $2.401 million (receiving net proceeds of sale in the order of $1.794 million). Ms Abraham also had cash of $146,160.00 and owned some vacant land in Canungra, Queensland, which Ms Abraham assessed as worth $715,000 and which she was attempting to sell.

Lindsay J assumed case management of these proceedings in the second half of 2025 as Probate List judge. On 29 August 2025, Lindsay J ordered that the parties file submissions outlining the orders they contended should be made to move these proceedings forward by 3 September 2025.

Lindsay J stood the proceedings over to 5 September 2025. Ms Cohen sought orders for a single joint expert on the question of Leon’s testamentary capacity at 20 April 2018. His Honour declined to appoint a single joint expert that day but granted the parties leave to adduce their own expert evidence on the question. A previous grant of leave to adduce expert evidence to Ms Abraham had been revoked in December 2023, due to non-compliance by Ms Abraham. His Honour also ordered Ms Abraham to file and serve her expert evidence by 31 October 2025.

Leave was also granted to the parties to have access to subpoena packet S-9 (the records from the Vaucluse nursing home) but with access limited to the legal representatives of the parties and their experts. The Vaucluse nursing home was the aged care facility where Leon was resident at the time he made his now disputed 2015 will. Access to subpoena packet S-9 was regarded as necessary to inform the expert evidence. Despite this order, Ms Abraham did not obtain access to this important subpoena packet directly and the same order had to be made by Lindsay J again on 17 December 2025.

Orders were also made on 5 September 2025 for the single joint expert document examiner in the proceedings, Ms Melanie Holt, to produce a supplementary report. These orders included orders that the parties pay Ms Holt's costs of that report in equal half shares. At the same time Ms Abraham was ordered to pay Ms Goldberg's costs of two wasted directions hearings “forthwith”. These costs were fixed as a specified gross sum instead of assessed costs in the amount of $2,000. Considering the order made was for payment “forthwith”, it would be reasonable for these costs to have been paid within 7 days. In fact they were not paid for weeks after that.

In the first half of September 2025, it is common ground that Mr Dezarnaulds, then the solicitor for Ms Abraham, had himself been required to enter an aged care facility. Evidence from one of Mr Dezarnaulds’ employees, Ms Sara Cosentino, about Mr Dezardnaulds’ limited capacity to undertake his legal work and overall efficiency at this time shows his capacity for professional practice was very limited. There is no evidence however that Ms E Cohen, the experienced junior counsel then engaged on behalf of Ms Abraham, was not available to assist Ms Abraham through another solicitor if called upon to do so.

Ms Cosentino says that she commenced voluntary employment work with Dezarnaulds Legal under the tutelage of the principal of the firm, Mr Dezarnaulds, a sole practitioner practising in Bondi Junction. She recounts that Mr Dezarnaulds engaged in electronic email communications but relied on an essentially paper-based filing system. Ms Cosentino says, and the Court accepts – she was not cross-examined – that in July 2025 Mr Dezarnaulds suddenly failed to attend the office. She discovered that he had been admitted to hospital for rehabilitation after suffering considerable pain. He was initially admitted to a public hospital. He was later transferred to a rehabilitation facility, where he continued to do some legal work with the assistance of his paralegal. In early September 2025 Mr Dezarnaulds was transferred to an aged care home.

On 12 September 2025 the Law Society of NSW (“the Law Society”) wrote to Mr Dezarnaulds inviting him to surrender his practising certificate for a medical condition likely to affect his capacity to practice. Mr Dezarnaulds sought an extension of time to surrender his practising certificate. But by 20 September 2025 his office had been closed, packed up, cleaned out and was ready to be taken over by another practitioner.

It can be inferred from these events that from this time on, that is about 20 September 2025, Mr Dezarnaulds’ clients were unable to communicate with him, or had a very limited ability to do so. By the end of September 2025, the Law Society had decided to appoint a practice manager to Mr Dezarnaulds’ practice. Ms Cosentino understands, and the Court infers, that on or about 20 September the Law Society also informed all Mr Dezarnaulds’ clients, including Ms Abraham, of the Law Society’s decision to appoint a practice manager to his practice.

On 2 October 2025 Mr Dezarnaulds informed Ms Cosentino that Ms Abraham wanted Dezarnaulds Legal to cease acting for her and that Ms Abraham was sending her sister to collect the files from his office. Ms Abraham told the defendant the same day that Mr Dezarnaulds would not be acting for her in the future. This evidence shows that due to information previously received by her, Ms Abraham had decided by 2 October 2025 to withdraw instructions from Mr Dezarnaulds. This was probably because of difficulties communicating with him, which she was likely to have encountered no later than 20 September 2025, or because of the communication from the Law Society at about the same time.

Ms Abraham did not pay the $2,000 in costs for the wasted directions hearings by mid-September. Ms Goldberg’s solicitors thereafter repeatedly corresponded with her seeking payment. Ms Abraham must have been aware of her original obligation to pay this sum, even if Mr Dezarnaulds did not pass all the later correspondence on to her. She only paid this $2000 after these repeated requests, when the solicitors for Ms Goldberg set a deadline of 5 PM on 2 October 2025 for payment. She effectively slow-walked making this payment to suit herself in a manner which was plainly likely to add to the legal costs of Ms Goldberg by generating further correspondence chasing up the overdue $2,000. This failure to pay Ms Goldberg quickly is at one level only about a relatively small sum in these proceedings. But at another level it strongly demonstrates that Ms Abraham continues to choose to cause inconvenience to Ms Goldberg and the Court in this litigation instead of honouring her Court-ordered obligations in a timely fashion. Ms Goldberg should never have needed to chase a diligent litigant in Ms Abraham’s position. Given her intelligence and resources a Court can only infer that Ms Abraham is not a diligent litigant by choice. Mr Dezarnaulds’ incapacity should not have prevented a diligent litigant in Ms Abraham’s position meeting these financial obligations to Ms Goldberg.

By early October 2025 Ms Abraham was taking steps to take back the file. In early October, Mr Dezarnaulds informed Ms Cosentino that one of Ms Abrahams’ daughters had collected Ms Abrahams files from him. Whatever the position of Mr Dezarnaulds at this time, there is no evidence that Ms Cohen could not assist Ms Abrahams, at least by telephone, to meet the Court’s orders. Ms Cohen was overseas for part of October 2025.

On 17 October 2025 the matter came before Lindsay J. There was no appearance by on behalf of Ms Abraham. Mr Dezarnaulds informed the Court that he was in hospital and had been for the previous six weeks and that counsel briefed, Ms Cohen, was overseas and uncontactable.

The plaintiff terminated the retainer of Mr Dezarnaulds formally on 21 October 2025, six days before Mr Fleming was appointed practice manager of Dezarnaulds Legal.

The formal appointment of Mr Andrew Fleming of Fleming Law Pty Ltd, as the identified practice manager of Dezarnaulds Legal did not take place until 27 October 2025. By the time that Mr Fleming, in his role as practice manager, transferred files from Dezarnaulds Legal to Mr Fleming’s office, Ms Abraham had removed her files, and had done so some weeks earlier.

Ms Cosentino told Mr Fleming about these proceedings during the practice handover. She correctly informed him that Dezarnaulds Legal were by then no longer acting for Ms Abraham. Mr Fleming checked the Court file anyway and discovered that Dezarnaulds Legal was still on the Court record. Being uncertain as to who had taken up the carriage of the matter during Mr Dezarnaulds’ ill health, Mr Fleming appeared in the matter before Lindsay J on 7 November 2025 to inform the Court of his appointment as practice manager.

Mr Fleming’s intervention made sure that someone appeared for Ms Abraham on 7 November 2025. But he should not have had to do so. She was an experienced solicitor having practised for 25 years, although now retired from practice. She knew by about 20 September of Mr Dezarnaulds’ unfortunate incapacity to carry out her legal work and she had collected her file by early October. Yet a month later, she had not made any arrangements for any lawyer to appear on her behalf before the Court. As will be seen, she appeared herself but only to seek an adjournment to find a solicitor.

Three matters make this inexcusable: her professional experience, her substantial financial resources and the very clear warnings from the Court in the first judgment about the consequences of her further non-compliance with its orders. She could not be sure that the Court would grant her any more indulgences, and it was likely that it would not do so. This meant she had to solve this problem rapidly herself. The Court infers from her failure to do so, combined with other financial defaults mentioned here, that she cannot be relied upon to conduct this litigation in accordance with the Court’s orders and timetables and the objectives mandated by Civil Procedure Act 2005 s 56.

Mr Brown points out on behalf of Ms Abraham that Mr Dezarnaulds’ office was effectively unmanned through most of September and that Ms Consentino was unable to work except under the supervision of Mr Dezarnaulds and he was in no position to work himself. Moreover, Ms Consentino herself did not have access to legal files from 2 October 2025 as they have been collected by Ms Abraham’s daughter. She in turn was overseas on holidays between 5 October 2025 and 15 October 2025.

But these submissions do not address the real issue. They merely point to the problems that she faced. For a woman of her intelligence, insight, and resources these problems were readily surmountable. In the face of her knowledge of Mr Dezarnaulds’ looming incapacity, she simply needed to engage another solicitor quickly, and if possible using existing counsel to advance a case. But Ms Abraham did not act with due dispatch nor with sufficient respect for the objectives of the Court in bringing this matter to a conclusion.

As mentioned above, on 7 November 2025 counsel appeared before Lindsay J for Mr Fleming in his then capacity as the manager of Dezarnaulds Legal to seek an adjournment. The same morning the plaintiff appeared herself with a notice to remove her solicitor Mr Dezarnaulds. Ms Goldberg was seeking to pursue her 9 February 2024 motion to strike out Ms Abrahams pleadings in accordance with the liberty given in the first judgment, due to Ms Abrahams further defaults. The motion was adjourned to 17 December 2025 for hearing, and the plaintiff advised the Court she did not have access to the file. This would not have been a problem had she engaged a solicitor in early October.

In parallel with these events Ms Abraham had defaulted on another order of the Court which was only rectified on 7 November. For two months Ms Abraham had failed to pay one half of the costs of Ms Holt’s supplementary report. Although Ms Abraham had been ordered to make this payment on 5 September, and although Ms Holt had confirmed that her report was ready on 24 September (Ms Goldberg paying her half share the same day), Ms Abraham failed to pay her half share. Repeated requests from Ms Goldberg for her to do so, for the Holt supplementary report to be released, fell on deaf ears. On 17 October Lindsay J again ordered Ms Abraham to pay her half share of Ms Holt’s costs by 21 October 2025 and ordered that Ms Goldberg serve a copy of those orders on Ms Abraham. Ms Abraham defaulted on this order. This was an egregious additional financial default of choice, which added unnecessary costs to Ms Goldberg’s prosecution of these proceedings by her having to chase Ms Abraham for these funds to have the Holt supplementary report released. Ms Abraham only paid her half share of these costs on the morning of 7 November 2025 when she had to appear before Lindsay J. She appears to have appreciated that being in continued default of those orders would make her appearance that day especially difficult.

The plaintiff engaged Fleming Law on 4 December 2025, and counsel was briefed on 10 December 2025. Mr Fleming then affirmed an affidavit that he did not have access to crucial affidavits referred to in the previous judgment nor access to subpoena packets. But access to the subpoena packets had been ordered mostly in July 2025.

Ms Goldberg wanted to proceed with her relisted strike out motion on 17 December. Ms Abraham was not ready to proceed. This was largely due to her failure to engage solicitors and counsel earlier. If she had engaged alternative solicitors and counsel in late September or early October, she would have had ample opportunity to contest this motion in December. The motion before Lindsay J was adjourned to 13 February 2026 and the plaintiff was ordered to pay Ms Goldberg the sum of $10,000 (being the costs thrown away by the adjournment of the motion that day) by no later than 30 January 2026, which she did.

The additional delay between 7 November and 4 December (on top of the delay after 20 September) in engaging Mr Flemming is unacceptable from a litigant who should have been demonstrating her respect for the Court’s objectives to restore a sense of urgency to this litigation.

On 13 February 2026 the plaintiff sent a letter of instruction to an independent expert, Dr Lonie, and on 12 February 2026 a precis of evidence for two treating doctors of the deceased, Dr Alex Knoppman and Dr Patricia Reyes. Every attempt has been made in February to try and get a sense of urgency back into this case on behalf of Ms Abraham. But whilst that is what Ms Abraham’s lawyers say now, it is difficult for the court to take that seriously when their client is so unreliable and Mr Brown offered to take a hearing date. But the case is not ready for that. Ms Abraham had made the same offer in 2024.

There are many reasons why Ms Abraham should be held to a firm standard of performance of the Court’s orders and why her pleadings should now be dismissed on Ms Goldberg’s relisted 9 February 2024 motion.

First, Ms Abraham has the professional expertise and financial resources to comply with the Court’s orders despite the obstacles she has faced but she sat back and let Court timetables expire. She practised as a solicitor for 25 years. The Court does not accept that a litigant with her background is serious about advancing these proceedings in accordance with the Court’s directives, given the way she has conducted herself up to now. As soon as the Court published the first judgment on 15 May 2025, any reasonable litigant in her position with her legal background and experience would have appreciated that strict and timely compliance with the Court’s orders was necessary.

When the ill health of Ms Abraham’s own solicitor came to her attention by no later than 20 September, the need for her to take rapid action to engage new solicitors to comply with the Court’s orders must have been obvious to her. Her own conduct in informing the other side in the first week of October that she was going to change solicitors shows that she fully appreciated by then that Mr Dezarnaulds was incapable of progressing this matter further for her. In those circumstances it was her responsibility to take the matter back from Mr Dezarnaulds and engage a new solicitor immediately, if the Court’s orders were to be complied with.

Secondly, Ms Abraham took the Court’s willingness to keep giving her indulgences for granted. This is not a case where Ms Abraham was entitled to assume without prior confirmation from the Court that an unwell solicitor would be an excuse for further delay on her part. Order 7 of the orders made on 15 May 2025 gave her general liberty to apply in relation to any contested issue in the administration of the estates. She was sufficiently legally well-versed that she could have sought to relist the matter immediately herself if she had trouble engaging a new solicitor. Instead, she seems to have assumed, without enquiry, that she would be excused from non-compliance with the Court’s order to file her expert evidence by 31 October. It was up to her to apply her resources and to agitate for access to subpoenaed materials in time to comply with the deadline.

Thirdly, Ms Abrahams has misled the Court about the reasons why she has been unable to comply with Court orders. She claimed to be impecunious to justify her past defaults in the Court’s timetables. The Court did not have objective evidence about her financial position at the time of the first judgment but was prepared to give her the benefit of the doubt in the absence of clear facts, whilst requiring her to verify her financial position should she default in the future.

The later verification of her financial position now proves that she is anything but impecunious. This change in the facts has two consequences. First, the Court’s willingness in the first judgment to forgive her past procedural defaults was secured by her on a false basis. Had the Court known her true financial position in May 2025, she is less likely to have been afforded the indulgence she was given at that time, due to the egregious nature of her defaults up to then. Second, a preparedness to make false statements to the Court about her financial position indicates she cannot be relied upon to adhere to any future timetable to bring these proceedings to a timely conclusion.

Fourth, Ms Abrahams recent conduct in not complying with the Court’s financial orders shows both disrespect for the authority of the Court and a willingness to continue to engage in brinkmanship, slow-walking these proceedings to keep them progressing at a pace which suits her. The Court is confident that if it were to allow these proceedings to continue, she would comply with only the Court’s orders that suited her, when they suited her.

Fifth, Ms Abraham has given no explanation herself on affidavit to explain any of these defaults. Any candid and genuine attempt by a litigant to advance to the Court genuine excuses for her continuing default should have been accompanied by an affidavit from Ms Abraham. She had plenty of time to put one on after the adjournment of the motion on 17 December 2025 but failed to do so.

Sixth, Ms Abraham’s defaults since the Court’s first judgment shows that she is continuing a pattern of conduct which was well-established before the courts first judgment and for which she was given relief. That pattern of conduct includes failure to attend court appointed court dates, failure to engage solicitors and counsel in a timely way, default in orders to pay money and default in accessing subpoenaed documents in the Court. The continuation of defaults of this character shows that she has learned nothing from opportunity given to her by the Court to continue these proceedings.

The Court is mindful that probate litigation such as this is also public interest litigation. That is a well-established matter for the court to take into account in considering the fate of litigation like this. But it is not acceptable for litigation to be conducted like this in this Court. Among other things Ms Abraham’s conduct has led to the Court to have to write these two judgments considering her conduct, which is an unnecessary diversion of this Court’s scarce resource of judicial time.

Ms Abraham’s proceedings should be dismissed with costs under Civil Procedure Act 2005 s 61(3). This is a clear case for dismissal based upon Ms Abraham’s continuing default in compliance with the Court’s orders. Therefore, it is not necessary to discuss the many authorities in relation to dismissal under s 61(3) and its cognate provisions: cf Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274, Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 and Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595.

Ms Abraham has been given numerous directions and orders since the first judgment in which she has been required to take specified steps within specified times in relation to the proceedings and the Court has made other directions binding her within s 61(2). These have been identified earlier in these reasons. Ms Abraham has failed to comply with these various orders directions and time limits, giving the Court the general power to dismiss the proceedings within s 61(3). The Court does not consider Ms Abraham’s engaging new solicitors as any basis for dismissal as she needed to change from Mr Dezarnaulds without fault on her part. But her lack of expedition in making the change and allowing her to fall into default is the problem for her. This is an apt case for the exercise of the Court’s discretion to dismiss proceedings for the reasons given and the Court will do so, ordering costs of the proceedings against Ms Abraham. Ms Goldberg should relist the proceedings for directions concerning the balance of the proceedings, namely her cross-claim, which seeks probate of Leon’s 2018 will and Carol’s 2013 will and family provision relief. Much of the cross-claim may no longer be necessary.

The same considerations that warrant dismissal under s 61(3) also warrant dismissal for failure to prosecute with due dispatch under UCPR, r 12.7. The repeated pattern of the defaults before and after the first judgment are an especially cogent reason for dismissal on this basis. It is not therefore necessary to consider the application of UCPR, r 13.4 and the potential dismissal of the proceedings as an abuse of process.

Ms Abraham’s conduct in response to the motion has been so egregious that the Court will make an indemnity cost order against her in respect of those costs under UCPR r 42.2. Ms Abraham’s delay in prolonging the proceedings has been very much focused on conduct related to the motion and that delay may correctly described as “inordinate” and accompanied by aggravating features which are more than mere delay within the established authorities: see for example Arian v Nguyen [2001] NSWCA 5. But Ms Goldberg should only have an indemnity costs order in her favour in respect of the motion rather than the rest of the proceedings to reflect the additional unreasonable financial waste which she unleashed by her contest of the motion. The dividing line may be difficult to draw between motion costs and other costs, but the Court may have to draw it if the parties cannot agree.

For these reasons Court makes the following orders and directions: