Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 1:
1. The late James Peter Thomas Tabain died on 29 April 2024. He was survived by his wife Sandra Jean Tabain ("Sandra") and their three children, who are presently locked in litigation over his estate of some $44 million. The deceased's and Sandra's three children are Matthew James Peter Tabain ("Matthew") born on to February 1974, Mark Justin Tabain ("Mark") born on 1 August 1975 and Jon Sinclair Tabain ("Jon") born 5 August 1977.
2. These proceedings are listed for final hearing for 10 days commencing on 7 October 2025 before Hammerschlag CJ in Equity. Several interlocutory contests took place in the Probate List before the Probate List Judge on 7 April 2025. Two of these three interlocutory issues resolved either by agreement or determinations, not requiring reasons. The two resolved issues related to (a) whether the Court should authorise under Corporations Act 2001 s 237 the commencement of a derivative action on behalf a company controlled by the deceased, and (b) whether the Third Cross-Claim against Matthew should be determined at the same time as other issues in the proceedings. The detail of those resolved issues is not material to the present application.
3. The parties engaged in an unsuccessful mediation on 30 May 2025. They have now asked the Court to resolve the third issue that was argued on 7 April 2025. That issue concerns whether the solicitors acting for the deceased's estate, Ms Julianna Kneebone, and her firm of which she is the principal, Kneebone & Associates Pty Ltd ("Kneebone & Associates") should be restrained from further acting in the proceedings on behalf of the plaintiff. Mark and Jon have moved by motion dated 25 November 2024 ("the restraint motion") to restrain Ms Kneebone and her firm from acting any further in the proceedings. Mark is the first respondent to the motion. Ms Kneebone and her firm have appeared as the second and third respondents to the restraint motion. The Court indicated that it would deal with this motion if the proceedings did not settle at the mediation. This judgment deals with that issue.
4. On 7 April 2025, Mr P Tierney of counsel appeared for Mark and Jon (the second and third defendants in the proceedings and the applicants on the restraint motion), instructed by Commins Hendriks, solicitors. Mr S Stanton of counsel appeared for Matthew (the plaintiff and the first respondent to the restraint motion) instructed by Kneebone & Associates Solicitors. Dr S Chapple SC appeared on behalf of Ms Kneebone and Kneebone & Associates, the second and third defendants on the restraint motion. The Court was much assisted by the concise focus by the legal representatives of all parties on the real issues in dispute on the restraint motion.
5. The parties adduced evidence on the motion of the material that they would each rely upon at final hearing. The Court had regard to that material, not for the purposes of making findings of fact but to understand what the contest was likely to be at final hearing and what issues would arise at final hearing.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c41fe2b6df9fb7a8426c4)
Disclaimer: Curated by HT Syndication.
