Byers v Overton Investments Pty Ltd

In the case of Byers v Overton Investments Pty Ltd, the dispute arises from the grant of a lease by Overton to Desmond and Mary Scott in 1987. The Scotts allege that they were induced to enter into the lease through misleading and deceptive conduct by Overton, in contravention of the Trade Practices Act 1974 (Cth). The issue before the court was whether the proceeding was properly commenced as, at the relevant times, no probate had been granted in respect of Desmond Scott's will, and it was unclear whether the executrix, Ms Byers, had the authority to bring the action.

The court considered the legislative context of the Wills, Probate and Administration Act 1898 (NSW) and determined that, until the grant of probate, the estate of the deceased was deemed to be vested in the Public Trustee. The court concluded that, in the absence of a grant of probate, Ms Byers, as executrix, had no title to the cause of action and could not properly commence the proceeding. The court further held that the deeming in section 61 of the WPA Act had limited operation and did not alter the rule that an executor derives their title from the will, with probate merely authenticating the title.

As a result, the court dismissed the application and ordered that the applicant pay the respondent's costs. The court found that the proceeding was a nullity and should be dismissed due to the lack of a grant of probate and the absence of any title in the executrix to bring the action.