Emile Elias ordered to pay $5m to brothers

THE High Court ordered that more than $5 million be paid out of court-held trust funds to satisfy decades-old costs owed by Emile Elias to his brothers, Joseph and Robert Elias, stemming from long-running probate litigation over their father’s estate.

Justice Robin Mohammed ruled that the Limitation of Personal Actions Ordinance, not the Limitation of Certain Actions Act, governs the dispute, clearing the way for recovery of both principal and accrued interest on costs orders dating back to proceedings that began in 1985.

The judgment creditors, Joseph Elias and Robert Elias, acting as executors and trustees of the estate of Nagib Elias, sought enforcement of taxed costs arising from court actions in 1985 and 1995. Joseph and Robert contended Emile owed $4.9 million in costs, which, they said, he refused to pay.

In 2012, costs were quantified at a combined principal sum of $1,578,482.27. After a $400,000 part payment in 2016, the outstanding principal stood at $1,178,482.26.

The court found that interest continued to accrue and calculated the interest due at $3,892,677.74 as of December 9, with daily interest of $161.43 thereafter. In total, the ordered payout exceeds $5 million.

The enforcement was tied to Emile Elias’ entitlement to a one-fourth share of a trust created under the will of Linda Elias. That share, US$983,505.50, had been paid into court earlier this year pending the outcome of the proceedings.

Justice Mohammed rejected Emile Elias’ limitation defence, holding that the “right of action” arose from the original probate litigation concluded before 1997, and that time for enforcement began when costs were quantified in 2012. The judge also noted that acknowledgements and part payments restarted any limitation period.

Both sides agreed that appointing a receiver was unnecessary because the funds were already held by the court. The judge ordered the principal and interest to be paid to the judgment creditors from the sums in court, with any remaining balance released to the judgment debtor.

The court also awarded costs to the judgment creditors at a discounted rate of 75 per cent, pointing to missed settlement opportunities and the familial nature of the dispute.

“I accept that opportunities for settlement existed prior to the filing of submissions which were not meaningfully taken up, and that the parties are members of the same family, a factor which renders the continuation of contested proceedings particularly undesirable.”

In his ruling, the judge expressed a hope for “total and final settlement” of the litigation that has spanned four decades between the brothers.

“The parties are brothers who have found themselves embattled in proceedings before the courts since 1985. It is this court’s hope that the outcome of these proceedings will bring total and final settlement to a long history of strife.

Joseph and Robert Elias were represented by Deborah Peake, SC, Ravi Heffes-Doon and Samuel Harrison, while Douglas Mendes, SC, Jason Mootoo, SC and Adrian Byrne represented Emile Elias.