Australia and New Zealand Banking Group Limited v The Estate of Balding
[2016] VSC 728
•1 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2016 4127
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) | Plaintiff |
| v | |
| THE ESTATE OF MICHAEL CHARLES BALDING | Defendant |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 November and 1 December 2016 |
DATE OF JUDGMENT: | 1 December 2016 |
CASE MAY BE CITED AS: | Australia and New Zealand Banking Group Limited v The Estate of Balding |
MEDIUM NEUTRAL CITATION: | [2016] VSC 728 First Revision 15 September 2017 |
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PRACTICE AND PROCEDURE – Application for substituted service – Application by mortgagee for possession and payment of moneys lent from estate of deceased mortgagor and borrower – Where proceeding commenced against the estate of a deceased person pursuant to r 9.08(1) and (2) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) – Where the deceased died intestate and his estate vests in State Trustees Limited pursuant to s 19 of the Administration and Probate Act 1958 (‘A&P Act’) – Where person claiming to be daughter of the deceased applied for the grant of Letters of Administration of the estate of the deceased – Plaintiff applied for order for substituted service on the daughter and State Trustees – Substituted service not available – Proper course to apply pursuant to r 9.08(5)(a)(i) of the Rules for the appointment of a person to represent the estate or await a grant of representation to a person and apply to make that person a party to the proceeding under r 9.08(5)(a)(ii) of the Rules – Alternatively, to apply under r 16.03 of the Rules – Andrews v Hogan (1952) 86 CLR 223 and GEL Custodians Pty Ltd v The Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973.
PRACTICE AND PROCEDURE – Application by mortgagee for possession and payment of moneys lent from estate of deceased mortgagor and borrower – Proceeding commenced against the estate of the deceased person pursuant to r 9.08(1) & (2) of the Rules – Where the deceased died intestate and his estate vests in State Trustees Limited pursuant to s 19 of the A&P Act – Where person claiming to be daughter of the deceased applied for the grant of Letters of Administration of the estate of the deceased – Application for appointment of personal representative of the estate pursuant to r 9.08(5)(a)(i) or alternatively r 16.03(1)(b) of the Rules – Person with the greatest interest in the estate is the applicant for the grant of Letters of Administration whose solicitor was given notice of the application – The applicant for the grant of Letters of Administration and the State Trustees given notice of the application – Appropriate procedure to apply by summons for the appointment of the appropriate person/(s) and failing that person/(s) consenting to be appointed to apply to proceed pursuant to r 16.03(1)(a) of the Rules in the absence of a person to represent the estate of the deceased.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Sumars, Solicitor (ex parte) | Gadens |
| No appearance for the Defendant |
HIS HONOUR:
Introduction
The plaintiff applies pursuant to r 6.10 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) for an order for substituted service in unusual circumstances. The proceeding has been commenced against the Estate of Michael Charles Balding (‘the deceased estate’) pursuant to r 9.08(1) and (2) of the Rules. It is sought to have an order for substituted service on the solicitors acting for the person who has applied for letters of administration of the deceased estate and on the State Trustees Limited (‘State Trustees’).
Background Facts
The plaintiff claims that on 10 May 2012, Michael Charles Balding (‘the deceased’) entered into a loan agreement with the plaintiff to borrow $282,815.32. The loan was secured by mortgage over a property at 15 Beauview Court Kurunjang, Victoria (‘the security property’).
The deceased died on 2 October 2015, seemingly intestate. At some point thereafter, the loan fell into default. On 16 August 2016, the plaintiff served a notice of default and a notice of demand pursuant to s 88 of the National Credit Code[1] and s 76 of the Transfer of Land Act 1958 (Vic) (‘the Demand’) on the deceased at the security property, that is to say, the plaintiff by its solicitor mailed the Demand to ‘the Deceased Estate of Michael Charles Balding’ at the security property. It was not returned.
[1]National Consumer Credit Protection Act 2009 (Cth), Schedule 1.
The plaintiff claims possession of the security property, payment of the monies outstanding pursuant to the loan agreement, interest and costs.
The plaintiff’s solicitor has sworn an affidavit in support of the application.[2] By that affidavit, it is established that:
[2]Affidavit of Sarah Jane Rogers sworn 13 October 2016.
(a) the last known mailing address of the estate of the deceased is c/- Maurice Blackburn lawyers (‘MB’);
(b) on 16 August 2016, the plaintiff sent the Demand and a covering letter to the deceased by ordinary pre-paid post to the security property and to MB;
(c) on 7 September 2016, the plaintiff received a response from MB acknowledging receipt of the letter of 16 August 2016 and informing the plaintiff that MB was in the process of making an application for Letters of Administration of the estate and expected to be in a position to file such an application within two weeks. MB also informed the plaintiff that they did not expect the estate to be in a position to make any payment by 26 September 2016 but would endeavour to resolve the arrears as soon as possible;
(d) the plaintiff’s solicitor sent an email to MB on 3 October 2016 stating that the default notice previously referred to had expired and requested an update by close of business on 7 October 2016, failing which the plaintiff would proceed with legal action;
(e) on 10 October 2016, the plaintiff’s solicitor conducted a search at the Probate Office of the Supreme Court of Victoria to ascertain if Letters of Administration had been applied for or granted. The search revealed that Letters had been applied for but that there was an outstanding requisition;
(f) the proceeding was commenced on 11 October 2016 and on that day the plaintiff sent an email to MB informing them that the proceeding had been commenced; and
(g) on the same day (on 11 October 2016), MB responded acknowledging receipt and informing the plaintiff that they were in the process of seeking further instructions from their client and would respond once they had spoken to their client. As at the date of the affidavit, there had been no response.
Plaintiff’s Contentions
In these circumstances, the plaintiff applies ex parte for an order that the Court dispense with the requirement for personal service and allow substituted service of the writ and statement of claim on the defendant by posting it to State Trustees and to the defendant care of MB. Alternatively, and after the first return of the application, the plaintiff applies for the appointment of a person to represent the estate in the proceeding under r 9.08(5)(a)(i) or r 16.03(1) of the Rules.
The argument in support of an order for substituted service is as follows:
(a) that the plaintiff’s cause of action survives against the deceased’s estate under s 29 of the Administration and Probate Act 1958 (Vic) (‘the A&P Act’);
(b) no Letters of Administration have been granted in respect of the deceased estate;
(c) between death and the grant of representation, real property vests in State Trustees;[3]
[3]Section 19 of the A&P Act provides that ‘Where a person dies intestate his estate until administration is granted in respect thereof shall vest in the State Trustees in the same manner and to the same extent as formerly in the case of personal estate in England it vested in the Ordinary.’
(d) the plaintiff has commenced proceedings against the deceased estate pursuant to the specific provision allowing this in r 9.08(1) and (2) of the Rules;
(e) the defendant is not a physical person who can be served, and the Rules do not prescribe any method for serving the estate of a deceased person;
(f) the Court has power pursuant to r 1.14(1)(b) of the Rules to give any direction or impose any term or condition it thinks fit in exercising any power under the Rules;
(g) pursuant to r 1.15 of the Rules, where the manner or form of the procedure for taking any step in a proceeding is not prescribed by the Rules or by any Act, the Court has power to determine what procedure is to be adopted and may give directions; and
(h) it is therefore impracticable to serve the writ in the manner prescribed by the Rules, that is personally, and the power in r 6.10 is enlivened, and substituted service may be ordered by serving the writ on the solicitors acting for the applicant for letters of administration and on State Trustees in which the real property of the estate vests by virtue of s 19 of the A&P Act.
Consideration
There is no doubt that the cause of action arising under the loan agreement and mortgage survives against the deceased’s estate under s 29 of the A&P Act.[4] It is also clear on the evidence presented by the plaintiff’s solicitor that the deceased died intestate and that there has been no grant of representation in respect of the deceased estate. In these circumstances, pursuant to s 19 of the A&P Act, the deceased’s estate vests in the State Trustees ‘until administration is granted in respect thereof.’
[4]Youngman v Heath [1974] WLR 135; New South Wales Technical & Further Education Commission v Fines (1993) 32 NSWLR 385.
It is also true that r 9.08(1) of the Rules allows the commencement of a proceeding against the estate of the deceased, that the defendant is not a physical person who can be served, and that the Rules do not prescribe any method for serving the estate of a deceased person.
The plaintiff relies on rules 1.14 and 1.15 to support its application for substituted service, which so far as relevant are as follows:
1.14 Exercise of power
(1) In exercising any power under these Rules the Court—
(a)shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;
(b)may give any direction or impose any term or condition it thinks fit.
1.15Procedure wanting or in doubt
(1)Where the manner or form of the procedure—
(a)for commencing, or for taking any step, in a proceeding; or
(b)by which the jurisdiction, power or authority of the Court is exercisable—
is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court shall determine what procedure is to be adopted and may give directions.
Rule 1.14(1) of the Rules has partial analogues in s 29(2) of the Supreme Court Act 1986[5] and s 7(1) of the Civil Procedure Act 2010 (‘CPA’).[6] It has been noted that the overarching object of efficiency in s 7 of the CPA differs little from the object prescribed by r 1.14 of the Rules.[7]
[5]Which, amongst other things, requires the Court to exercise its jurisdiction in law and equity so as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.
[6]Section 7(1) of the CPA states that the overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
[7]Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16.
Rule 1.15 gives expression to the principle that where jurisdiction exists and no apt procedure has been provided by statute or rules of court, the Court must itself mould a convenient procedure.[8]
[8]Williams, Civil Procedure Victoria, [1.15.0]; R v Justices of the Central Bailiwick; Ex parte M'Evoy (1881) 7 VLR (L) 90; In the Will of Todd (1887) 13 VLR 185 at 189; Edgar v Greenwood [1910] VLR 137 at 144-5; Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 284; Browne v Cmr for Railways (1935) 36 SR (NSW) 21 at 28-9; Hawke v Edwards (No 2) (1947) 48 SR (NSW) 234 at 235; Hoban v Davey [1972] 1 NSWLR 59 at 67; Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 at 148-9.
In order to determine whether there is any room for the operation of r 1.15, it is necessary to have close regard to the wording and purpose of the relevant Rules. Rule 6.10 provides, so far as presently relevant:
6.10 Substituted service
(1)Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
This rule is predicated on the existence of a person, that is a legal person, who can be served. Where it is a party to be served, that party must be a person. This follows because the Rules require that steps specified in the order be taken for the purpose of bringing the document to the notice of ‘the person to be served.’ In this case, there is no such person. The estate of the deceased is not a person and, apart from the operation of r 9.08 of the Rules, may not be sued.
Moreover, it is not ‘impracticable’ to serve in the manner required by the Rules. It is ‘impossible’, because in the case of the service of originating process, personal service on the defendant is required.[9] There is no person to be served because there is no defendant. That is, unless service may be effected by serving State Trustees as the entity in which the security property vests under s 19 of the A&P Act.[10]
[9]Rule 6.02 of the Rules.
[10]Andrews v Hogan (1952) 86 CLR 223 (‘Andrews v Hogan’).
Before turning to the question of whether service on State Trustees might be effective, it is relevant to consider what might follow if substituted service were allowed on State Trustees and MB, as sought. In the present proceeding, State Trustees is not named as the defendant The named defendant is the estate of the deceased. A defendant by that name is not a legal person. Subject to the operation of r 16.03 of the Rules (as to which see below) and the possible exception of a judgment in rem for possession,[11] judgment cannot be given against such a defendant. It is usually necessary for there to be an identified person against whom judgment is given if it is a money judgment, as this one is in part.[12]
[11]GEL Custodians Pty Ltd v The Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973 (‘GEL Custodians’) at [47]-[62].
[12]Colquhoun v Graffione (Administrator) in the matter of Colquhoun [2000] FCA 325 at [25]-[27]; Sergei Ivanovski v Walter Perdacher [2009] NSWSC 913 at [49]; GEL Custodians at [64].
Whether service on State Trustees would be effective service in the current circumstances is a very vexed question. It was once the received wisdom that the vesting of estate property in State Trustees between death and a grant of administration was no more than ‘notional’ and that State Trustees was no more than the formal repository of the legal estate.[13] This meant that State Trustee could not take any affirmative step in litigious proceedings unless and until a grant of administration to it, and that no action could be brought against it merely because of the terms of s 19 of the A&P Act.[14]
[13]Ex parte the Public Trustee; Re Birch (1951) 51 SR (NSW) 345 at 350 and 360-361 (‘Birch’); GEL Custodians at [20].
[14]Birch per Street CJ at 350.
That notion was challenged, although not expunged, by the decision of the High Court in Andrews v Hogan[15] where a Notice to Quit served on the NSW Public Trustee was held valid to terminate a tenancy. The tenant had died leaving a will naming her two sons as executors and sole beneficiaries but they had not obtained probate at the time of the proceedings. Under s 61 of the Probate and Administration Act 1898 (NSW), the real and personal estate of a deceased who died testate or intestate ‘shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England’.
[15]Andrews v Hogan.
In GEL Custodians,[16] Davies J of the Supreme Court of NSW considered the authorities since Birch and Andrews v Hogan in the context of the service of proceedings by a mortgagee to recover possession of mortgaged property where the proceeding was commenced against the estate of the deceased after his death and service was effected on the NSW Trustee. The matter came before him by way of review of a decision of the Registrar to set aside a default judgment purportedly entered against the estate of the deceased.
[16]GEL Custodians.
The analysis of the authorities undertaken by Davies J shows that the authority of State Trustees under s 19 of the A&P Act is quite unsettled. He opined that on one view, the decision in Andrews v Hogan does not go beyond the proposition that the NSW Public Trustee was the appropriate person to be served with a Notice to Quit.[17] On the other hand, there are authorities that conclude that Birch can no longer be regarded as correctly laying down the law.[18] An instance of this unsatisfactory position is the observation of Dixon CJ in Andrew v Hogan,[19] that notwithstanding that the estate must be regarded as vesting in the NSW Trustee so that a notice under s 62 of the Landlord and Tenant (Amendment) Act 1948 terminating the tenancy might properly be served upon him, nevertheless:[20]
The special position of the Public Trustee could not affect this result, even if it be that, as a mere repository of the estate, his ‘capacity’ does not extend to appearing and defending the action.
[17]GEL Custodians at [28].
[18]Ex parte Newlands Brothers Pty Ltd; Re Kenniff (1955) 56 SR (NSW) 35 at 38; GEL Custodians at [41].
[19]At 232.
[20]At 233.
After a thorough review of the authorities, Davies J concluded that:[21]
… where a claim for possession is made in relation to a person who has died and where no grant of probate or administration has [been] made in their estate the proper defendant to the proceedings is the NSW Trustee and Guardian by virtue of s 61. This is so whether possession is sought by a landlord, by a mortgagee or any other person entitled to possession such as a trustee in bankruptcy or a trustee appointed pursuant to s 66G Conveyancing Act 1919.
[21]At [63].
Because the NSW Trustee was not named as a defendant, and the estate of the deceased is not a legal person, no judgment could be given against it (as had purportedly been done) and the Registrar had been correct to set aside the judgment. His Honour held that before any further judgment may be given, an application will need to be made by the plaintiff to amend the proceedings to name the NSW Trustee and Guardian as defendant. This was in part a consequence of the fact, as it turned out after the proceeding was commenced, that a Will had been found that appointed the NSW Trustee the deceased’s executor.
In Victoria, the position is affected, and significantly so, by the express operation of r 9.08 and r 16.03 of the Rules. Rule 9.08 provides:
9.08 Defendant dead at commencement of proceeding
(1)Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased.
(2)Without limiting paragraph (1), a proceeding brought against “the estate of A.B. deceased” shall be taken to have been brought against the deceased's estate in accordance with that paragraph.
(3)A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with paragraph (1).
(4)A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased.
(5)In a proceeding within paragraph (1) or (3), the Court—
(a)may—
(i)appoint a person to represent the estate of the deceased for the purpose of the proceeding; or
(ii)if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding; and
(b)may order that the proceeding be carried on against the person so appointed or against the personal representative, as if that person or representative had been substituted for the estate.
(6)Where, after the commencement of a proceeding within paragraph (1) or (3), the Incorporated Nominal Defendant has been appointed administrator ad litem of the estate of the deceased person under section 158 of the Transport Accident Act 1986, the Court may for the purpose of paragraph (5), if the cause of action falls within section 158 of that Act, order that the Incorporated Nominal Defendant be appointed to represent the estate of the deceased.
(7)In any proceeding within paragraph (4), the Court may order that the personal representative of the deceased be made a party, and that the proceeding be carried on against the personal representative as representing the estate of the deceased.
(8)An application for an order under paragraph (5) or (7) shall be made during the period of validity for service of the writ or other originating process, unless the Court otherwise orders.
(9)Before making an order under paragraph (5) or (6), the Court may require notice to be given to—
(a)any insurer of the deceased who has an interest in the proceeding; and
(b)any person having an interest in the estate.
(10)Where no grant of representation has been made any judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding.
(11)In this Rule grant of representation means a grant of probate or administration in Victoria or the resealing of a foreign grant in Victoria.
The learned authors of Williams, Civil Procedure Victoria note, in part:[22]
Originally, no proceeding could be brought to enforce a cause of action which had survived the death of the person liable unless there was an executor or administrator to name as defendant. If there were no executor or administrator, the prospective plaintiff was required to obtain an order of the Supreme Court appointing a person as administrator ad litem to represent the estate of the deceased. An administrator ad litem of the estate of a deceased person has authority to defend a proceeding brought against him in that capacity. See Greenway v McKay (1911) 12 CLR 310 ; Estate of O'Connor [1950] VLR 343 . ….
The new rules provide that if a cause of action survives against the estate of a deceased person, and no grant of representation has been made, a proceeding may be commenced against the estate by naming as defendant "the estate of A B deceased" r 9.08(1), (2). …. After the proceeding is commenced the court may appoint a person to represent the estate of the deceased for the purpose of the proceeding or, if a grant of probate or administration has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party: r 9.08(5). In the former case, the order of the court will in effect be an order appointing an administrator ad litem, but in respect of an existing rather than a prospective proceeding.
[22]Williams, Civil Procedure Victoria, [9.08.0]- [9.08.05].
The intent of r 9.08 of the Rules is, in my view, that ordinarily after the commencement of proceedings against the estate of a deceased person in accordance with r 9.08(1), the taking of further steps in the proceeding depends on the appointment of a person under r 9.8(5)(a)(i), if there has been no grant of representation as mentioned in r 9.08(5)(a)(ii). This may be subject to the operation of r 9.08(9) and (10) and r 16.03, as I mention below.
The application of r 6.10 (substituted service) to the facts of this case, and this construction of r 9.08, has the result that there is no gap in the Rules, and no want of the manner or form of the Rules regarding service of process on the estate of a deceased. It is a case where the rule as to substituted service is inapplicable. The matter of procedure that may not be clearly prescribed by the Rules, or by or under any Act, or which is otherwise in doubt, is how to proceed in a case where proceedings have been commenced against the estate of a deceased under r 9.08. In the circumstances of this case, that is answered by the provision of r 9.08(5), (9) and (10) and/or r 16.03 of the Rules.
Although there is no scope for substituted service in this case, it is possible for the plaintiff to apply to appoint either the person who has applied for the Letters of Administration, or State Trustees, as the representative of the estate under r 9.08(5)(a)(i) of the Rules pending the grant of representation. For that purpose, the application may, in the discretion of the Court, need to be made on notice to the person. Alternatively, application may be made for the appointment of an administrator ad litem. That amounts to much the same thing, although the latter is a grant of representation properly so called in the Probate jurisdiction of the Court, whereas the appointment of a representative under r 9.08(5) or r 16.03 of the Rules is a statutory equivalent. As Austin J noted in Aliperti v Official Trustee:[23]
The English Court of Chancery had jurisdiction to appoint a person as administrator ad litem if the person was willing so to act: Dean & Chapter of Ely v Gayford (1853) 16 Beav 561, 51 ER 896. However, it appears that with the adoption of statutory provisions which authorised the Court to appoint a representative in equivalent circumstances (Chancery Procedure Act 1852, s44), the appointment of an administrator ad litem became rare and it became more usual to appoint a representative pursuant to the statutory provisions and rules of Court: see Butterworths Australian Legal Dictionary, entry for 'ad litem'. The English statutory provision became s24 of the Equity Act 1901 (NSW), and a comparable provision is now found in Pt8 R16 of the Supreme Court Rules.
[23][2000] NSWSC 315 at [6]; Hewitt v Garner [2009] NSWSC 705 at [79].
The more direct descendant of s 44 of the Chancery Procedure Act 1852, is r 16.03 of the Rules. It is possible under that rule to appoint a person to represent the estate of the deceased (with the person’s consent) or to obtain a judgment against the estate of a deceased person without the appointment of a person to represent the estate. Rule 16.03 provides:
16.03 Deceased person
(1)Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may—
(a)proceed in the absence of a person to represent the estate of the deceased; or
(b)by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding.
(2)An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party.
(3)Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate.
The equivalent rule in Victoria before the 1986 rules were introduced was Order 16, rule 46, of the General Rules of Procedure in Civil Proceedings 1985. In New South Wales the applicable rule is now r 7.10 of the Uniform Civil Procedure Rules.[24]
[24]The previous NSW rule was Part 8 Rule 16 of the Supreme Court Rules. That rules was the model for r 16.03 of the Rules.
Sloss J noted in Talacko & Ors v Talacko:[25]
There is a dearth of authority on r 16.03(1)(b), and what factors should guide the exercise of the Court’s discretion to appoint a person to represent the estate of the deceased for the purposes of an application or the trial of a proceeding. In Hewitt v Gardner; Hewitt v Gardner,[26] a decision concerning the counterpart provision in New South Wales, r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW),[27] Ward J examined the procedural history of the rule. Her Honour noted that the predecessor to the present rule is found in Part 8 Rule 16 of the old Supreme Court Rules and dates back to s 44 of the Chancery Procedure Act 1852 (15 & 16 Vic c 86), but she added ‘many older variants of the rule do not include an equivalent of r 7.10(1)(b)’.[28]
[25][2015] VSC 624 at [165]; (2015) 305 FLR 353 (reversed on appeal but not on this point, see Bennett v Talacko [2016] VSCA 179).
[26][2009] NSWSC 705.
[27]Rule 7.10(2) provides:
The court:
(a)may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or
(b)may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.
[28]Ibid at [77] (emphasis in original). Rule 7.10(1) provides:
This rule applies to any proceeding in which it appears to the court:
(a)that a deceased person’s estate has an interest in the proceedings, but is not represented in the proceedings, or
(b)that the executors or administrators of a deceased person’s estate have an interest in the proceedings that is adverse to the interests of the estate.
Sloss J then quoted from the judgment of Ward J in Hewitt v Gardner,[29] as to what the rule contemplates, as follows:
Although the present service of Ritchie’s Uniform Procedure NSW when addressing r 7.10 appears to contemplate that normally the appointment will be of an administrator ad litem:
An appointment will not be made under this rule without the consent of the proposed appointee, but, subject to this, the court may appoint any person it considers appropriate: Re Curtis & Betts [1887] WN 126; Pratt v London Transport Board [1937] WN 43; Lean v Alston [1947] KB 467; Re Hart; Smith v Clarke [1963] NSWR 627; (1962) 80 WN (NSW) 1120. Normally the person would be appointed administrator ad litem: Dean & Chapter of Ely v Gayford (1853) 51 ER 896; 16 Beav 561. [My emphasis]
on my reading of Dean & Chapter of Ely v Gayford, while that case supports the proposition that the person appointed under such a rule “ought, as nearly as possible, to be the same as would have been appointed administrator ad litem” (at 896-897), it does not support the proposition that an appointee under the rule must necessarily (or would normally) be appointed as an administrator ad litem.[30]
[29][2009] NSWSC 705 at [78].
[30]Ibid at [78]. See also the observations made by Austin J in Aliperti v Official Trustee [2000] NSWSC 315, at [6] when discussing the origin of Pt 8r 16 of the old Supreme Court Rules.
In Hewitt v Gardner,[31] Ward J concluded that the usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances.[32]
[31][2009] NSWSC 705 at [89].
[32]See also Talacko v Talacko (supra) at [167].
It seems to me that this Rule enables the plaintiff to proceed in a way similar to its application for substituted service. That is, the giving of notice to the persons who, as far as the plaintiff knows, are interested in the estate of the deceased, before seeking to take any other step in the proceeding. This may or may not lead to the appointment of a person to represent the estate for the purposes of the proceeding. In Re Hart,[33] McLelland CJ in Eq observed that an order is never made where the proposed appointee is unwilling to act.[34] If there is no person willing and able to act, then in the circumstances of this case, the Court may proceed as contemplated by r 16.03(1)(a) so that, at least, a judgment in rem for possession may be obtained against the estate which will bind it by virtue of r 16.03(2) of the Rules.
[33][1963] NSWR 627, 630; [2000] NSWSC 315 at [8].
[34]It is also the case that a person with a close connection to the plaintiff or opposite party should not be appointed: see In the Estate of Phillips [1947] VLR 379; In the Estate of O’Connor [1950] VLR 343.
The Court’s file in the Probate Division shows that the applicant for Letters of Administration is Jessie Marie Leonie Tooman of 15 Beauview Court Kurunjang, Victoria, which is the address of the security property. She claims to be the daughter of the deceased. The Registrar of Probate has made a requisition in the application requiring proof by production of a birth certificate that Ms Tooman is the daughter of the deceased.
After the difficulties facing the application for substituted service were pointed out to the plaintiff, the application was adjourned and the plaintiff filed written submissions. It added to its application, in the alternative, an application for the appointment of Ms Tooman and/or State Trustees as representative of the estate of the deceased for the purposes of this proceeding.
On 24 November 2016, the writ, notice to produce and affidavit in support of the application was served by post on MB and State Trustees together with a copy of the order adjourning the application to 1 December 2016.[35] On 23 November 2016, a letter explaining the circumstances was sent by the plaintiff’s solicitors to MB and MB was requested to provide in writing the attitude of Ms Tooman to being appointed by the Court to represent the estate of the deceased. By letter dated 30 November 2016, MB responded after obtaining instructions that Ms Tooman did not wish to be appointed by the Court as representative of the estate under r 9.08 and, by implication, under r 16.03(1)(b) of the Rules. MB also advised as to the progress of the application for Letters of Administration and that when a grant of representation is made to her, the intention of Ms Tooman was to sell the property to satisfy the liability of the estate to the plaintiff. MB informed the plaintiff’s solicitors that MB would not be in attendance on 1 December 2016. State Trustees responded that they could not find the deceased as a client.[36]
[35]Affidavit of service of Anthony Richard Conti sworn 30 November 2016.
[36]Affidavit of Susan Sumars sworn 30 November 2016.
I note that mere service on the solicitor acting for Ms Tooman (as the plaintiff has in effect proposed) may not be sufficient. She appears on the evidence presently available to be the person with the greatest interest in the proceeding brought by the plaintiff. The overarching purpose in the CPA requires the Court in making any order or giving any direction in a civil proceeding to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute, and to do so having regard to the just determination of the dispute.[37] Given that the plaintiff is aware that Ms Tooman has applied for a grant of representation, the obvious ‘justice’ of the matter points to her being made the subject of an application under r 9.08(5)(a)(i) or r 16.03 of the Rules. That requires more than the service of the material in support of the application for substituted service on the solicitor apparently acting for her in the application for Letters of Administration. It requires more than a letter explaining the background and the indication of the Court previously given that substituted service may not be appropriate but that the appointment of a personal representative under either r 9.08(5)(a)(i) or r 16.03(1)(b) of the Rules may be the appropriate course to adopt.
[37]Section 9.
For the Court now to proceed either to appoint a person as representative of the estate of the deceased for the purpose of this proceeding or to proceed in the absence of a person to represent the estate pursuant to r 16.03(1)(a) it is in my view necessary for the plaintiff to make an application by summons directed to the person or persons most appropriate to be appointed to represent the estate of the deceased and include as an alternative an application to proceed in the absence of a person to represent the estate pursuant to r 16.03(1)(a) of the Rules.
On the present evidence before the Court, the most appropriate persons to be made the subject of such an application are Ms Tooman or State Trustees. In my view it is insufficient in the present circumstances for service of that summons to be effected on the solicitors acting for Ms Tooman in her application for Letter of Administration. The summons should be served personally, if that is possible, just as the Writ or other originating process would ordinarily be served personally. If that is done and Ms Tooman refuses to consent to be appointed to represent the estate of the deceased and State Trustees acts likewise, then the appropriate course may well be to proceed in the absence of a person to represent the estate of the deceased.
In this connection I note that the evidence submitted by the plaintiff indicates that there is little equity in the security property after taking into account the loan moneys secured by the plaintiff’s mortgage.[38] In those circumstances, the lack of willingness of Ms Tooman to represent the estate of the deceased in this proceeding may be seen as a delaying tactic.
[38]Affidavit of Susan Sumars sworn 30 November 2016.
Conclusion
For these reasons, I consider that substituted service is not available or appropriate and that the proper course is for the plaintiff to apply to appoint a person to represent the estate pursuant to r 9.08(5)(a)(i) of the Rules or to make application under r 16.03 of the Rules. The present application is not a proper vehicle for the appointment of a person to represent the estate of the deceased under either r 9.08(5)(a)(i) or r 16.03(1) nor is it a sufficiently firm basis for the Court making orders or giving judgment in the proceeding in the absence of a person to represent the estate under r 16.03(1)(a) of the Rules.
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