Carr v Larussa Pastoral Holdings Pty Ltd
[2015] WASC 300
•14 AUGUST 2015
CARR -v- LARUSSA PASTORAL HOLDINGS PTY LTD [2015] WASC 300
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 300 | |
| 14/08/2015 | |||
| Case No: | CIV:1132/2015 | 4 AUGUST 2015 | |
| Coram: | MASTER SANDERSON | 13/08/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Administrator entitled to continue to act | ||
| A | |||
| PDF Version |
| Parties: | ANNA CARR LARUSSA PASTORAL HOLDINGS PTY LTD LARUSSA CUSTODIAN SERVICES AUSTRALIA PTY LTD as trustee for the LARUSSA PASTORAL TRUST |
Catchwords: | Probate Effect on future administration of estate when letters of adminstration returned pursuant to citation |
Legislation: | Administration Act 1903 (WA) |
Case References: | In will of Martin (decd) [1956] St R Qd 333 Schreuder v Murray [No 2] [2009] WASCA 145 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
LARUSSA PASTORAL HOLDINGS PTY LTD
First Defendant
LARUSSA CUSTODIAN SERVICES AUSTRALIA PTY LTD as trustee for the LARUSSA PASTORAL TRUST
Second Defendant
Catchwords:
Probate - Effect on future administration of estate when letters of adminstration returned pursuant to citation
Legislation:
Administration Act 1903 (WA)
Result:
Administrator entitled to continue to act
Category: A
Representation:
Counsel:
Plaintiff : Mr S Penglis
First Defendant : Mr H Kirimof
Second Defendant : Mr H Kirimof
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
First Defendant : Dunns Corporate Counsel
Second Defendant : Dunns Corporate Counsel
Case(s) referred to in judgment(s):
In will of Martin (decd) [1956] St R Qd 333
Schreuder v Murray [No 2] [2009] WASCA 145
1 MASTER SANDERSON: The plaintiff is the administratrix of the estate of the late Giuseppe Larussa. By originating summons filed 29 January 2015, the plaintiff sought the following orders:
1. Within 10 days, the Defendant, as trustee of the Larussa Pastoral Trust ('Trust'), produce for inspection by the Plaintiff, and for the Plaintiff to take copies of, such of the following documents as are in its possession, custody or power:
1.1 all annual financial statements and accounts of the Trust;
1.2 any Deed of Variation to the Trust Deed;
1.3 the minutes of meetings of the Trustee since the inception of the Trust (save and excluding any portion thereof which records any consideration or discussion as to whom distributions would be made and in what amounts);
1.4 all documents relating to all financial transactions (including distributions, payments and loans) involving the Trust and Giuseppe Larussa;
1.5 all documents relating to, and any adjustments to, the Beneficiary Loan Account of Giuseppe Larussa
2. the Defendant pay the costs of an incidental to this application.
2 The application was supported by an affidavit of the plaintiff sworn 27 January 2015. She says letters of administration were granted to her on 27 October 2014. The deceased was a beneficiary of a discretionary trust known as Larussa Pastoral Trust which was created on 24 July 2003. She says at the time of creation, the then sole defendant named in the originating summons, now the first defendant, was named as the trustee of the trust. Importantly, she said that to the best of her knowledge and belief, the present first defendant continued to be trustee of the trust. She says that at the time of the deceased's death, the deceased and one Tony Larussa, the plaintiff's brother, were the sole directors and shareholders of the trustee.
3 The deceased died intestate and the only persons entitled to apply for letters of administration were the plaintiff, her brother Tony and her mother, Maria. For reasons which are not presently relevant the plaintiff came to the view that the trust had a beneficiary loan account in favour of the deceased in an amount of around $7 million. Despite contact with a firm of solicitors based in Victoria, Dunns Corporate Counsel, the plaintiff was unable to obtain copies of the relevant trust documents. That led to the making of the application.
4 A status conference was held before the principal registrar on 23 March 2015 where programming orders were made to list the application for a special appointment. Parties were given liberty to apply to list the action for mention.
5 Unavailable dates were provided to the court and a special appointment was listed before me on 24 July 2015.
6 On 15 July 2015 counsel for the defendant emailed the court requesting the matter be listed for directions in Master's chambers. On 21 July 2015, in chambers, the defendant made an application the special appointment be adjourned sine die, or alternatively, be re-listed on a date after 3 August 2015. The grounds for the adjournment were that Tony Larussa had applied to have the letters of administration granted to plaintiff set aside. He maintained an alternative will had been located and that alternative will was the proper last will and testament of the deceased. After hearing argument, I dismissed the application. I did so largely on the basis that even if the presently extant letters of administration were recalled the plaintiff was named as co-executor in the alternate will. In my view, it was in everyone's interest that the assets of the estate should be ascertained as soon as possible.
7 On 23 July 2015, the defendant lodged an affidavit of Mr Tony Larussa sworn on that day. Tony Larussa said the first defendant was no longer the trustee of the trust. It had been replaced with the present second defendant. At the special appointment on 24 July 2015, submissions on the part of the first defendant were lodged seeking to have the application dismissed on the basis orders could not be made against the first defendant.
8 For some time solicitors for the plaintiff had been aware of the possibility that the first defendant had been replaced as trustee of the trust. They had communicated with the defendant's solicitors and asked specifically if the first defendant was still the trustee of the trust. Those solicitors failed to respond. The first time the plaintiff's solicitors became aware that the change of trustee was when they received Mr Tony Larussa's affidavit.
9 During the course of his submissions, I made it known to counsel for the defendant what I thought of his instructing solicitors conduct.
10 Before adjourning the hearing on 24 July 2015, I made orders joining the present second defendant as a party to the application. I truncated the time for an appearance and relisted the matter for hearing on 4 August 2015. I also ordered the first defendant pay the costs of the adjourned application on an indemnity basis.
11 At the resumed hearing the second defendant opposed the making of the orders on two grounds. First, it was said in circumstances where the plaintiff's position as administratrix of the estate was under attack it was not open to the court to make the orders sought in the originating summons. Second, it was submitted that as the deceased no longer had an interest in the trust - that interest being extinguished on his death - it was not open to the plaintiff to request the documents sought in the originating summons.
12 It is convenient to deal with the second of these two points first. It may well be the case any rights the deceased had in relation to the trust were extinguished at his death. But, if at the date of his death there was a loan account in his name and to which he was entitled then the administratrix of the estate is entitled to see the relevant documents. If any authority is required for that proposition it is found in the Court of Appeal decision in Schreuder v Murray [No 2] [2009] WASCA 145. There can be no suggestion the plaintiff is seeking the documents for anything other than a proper purpose - she wants to ascertain what is in the deceased's estate. As counsel for the plaintiff conceded it may well be documents which came into existence after the death of the deceased, and which do not affect his interest in the trust, would not have to be produced. The plaintiff is clearly entitled to call for the documents mentioned in the originating summons.
13 In relation to the claims based on the alternative will, some background facts are necessary.
14 After the grant of letters of administration to the plaintiff, Tony Larussa through his solicitors wrote to the court advising he believed a will had been located. As a consequence of that correspondence, the probate registry issued what is known as 'Citation to Bring in Letters of Administration'. The citation was in the following terms:
TAKE NOTICE THAT TONY LARUSSA of 2000 Brand Highway Breera, in the state of Western Australia, cattle farmer, has stated in an affidavit sworn on the 17th day of December 2104 and a further affidavit sworn on the 20th day of April 2015 that:
1. Letters of administration of the estate of Giuseppe Larussa late of Gracefield Park Farms, Beermullah West Road, Beermullah in the state of Western Australia, boilermaker/welder and cattle farmer, deceased ('the deceased') who died at Gracefield Park Farms, Beermullah West Road, Beermullah in the state of Western Australia, on the 28th day of November 2013 were on the 27th day of October 2014 granted to you by the Supreme Court of Western Australia.
2. Since the grant of letters of administration, an informal will dated 1 August 1991 has been located, which, if proved in probate in solemn form, will constitute the last will and testament of the deceased.
3. You are in breach of your duty as administratrix not to put yourself in a position of conflict and your duty not to profit from your position.
3. That the grant of letters of administration granted to you ought to be called in, revoked and declared null and void in law.
YOU ARE COMMANDED within 21 days after service on you of this citation to bring into and leave in the Probate Office of this Court at Level 14, 111 St Georges Terrace, Perth, Western Australia the letters of administration granted to you in order that Tony Larussa may proceed in due course of law for the revocation of the same.
15 This citation was presumably issued pursuant to O 73 r 8. That rule is in the following terms:
8 Citation to executor etc. to bring in probate etc.
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person, a citation may, on the application of the plaintiff, be issued against the person to whom the grant of probate or letters of administration was made requiring him to bring into and leave at the Central Office the probate or letters of administration, as the case may be.
16 The issuing of the citation is a necessary precursor to a party seeking revocation of letters of administration. That is the effect of O 73 r 2. That rule is in the following terms:
2 Commencing probate action
(1) A probate action must be begun by writ issued out of the Central Office.
(2) A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 8 has been issued or the probate or letters of administration, as the case may be, has or have been lodged in the Court.
17 The plaintiff as she was required to do by the citation delivered to the probate registry the letters of administration. It was the second defendant's submission that once the letters of administration were delivered to the registry by the plaintiff, she no longer had the power to act as administrator of the estate. That meant she could not properly bring this application and the application must fail.
18 There is no direct authority on this point. The only case of any relevance is the Queensland decision of In will of Martin (decd) [1956] St R Qd 333. The decision deals with a then existing order of the Queensland rules which is quite different from our O 73. Relevantly, the rule read as follows:
A person who desires to bring an action for revocation of a grant of probate or administration must before action apply to the court or a judge, upon notice to the executor or administrator, for an order directing the executor or administrator to bring the grant in to the registry.
19 During the course of his judgment Philp J did make some comments which may inform the practice in this court. His Honour said:
Having in view the history of probate practice, I think that the rule was primarily intended to destroy the citor's right to obtain without notice a pre-emptory command from the court to bring in the grant - a command which the citee may be unable to obey. If that be the sole purpose of the rule, then I should make an order, since no suggestion is made or appears that the order cannot be obeyed.
Further I think that the rule gives the judge a discretion as to whether he will deprive the grantee of the grant pending the hearing of the action. He may think from the circumstances that the intending plaintiff's claim is, for example, fraudulent or hopeless, or that the application is made for some ulterior purpose, and for some such reason may, in his discretion, refuse to make an order. But his refusal to make an order would not prevent the issue of the writ.
Apparently the Ecclesiastical Courts and the Probate Court did not concern themselves with the great inconvenience which may be caused by temporarily impounding the grant - they were concerned only with the danger of allowing the grant which might be invalid to remain in the hands of the grantee, and a desire to secure that any order for revocation they might make will be followed by actual cancellation. Because of that attitude of those courts, I am doubtful whether r 83 was intended to confer any discretion on the judge; but it seems to me that the judge should have power to refuse an order in clear, strong circumstances and the words of the order are wide enough to confer that power (at 337 - 338).
20 Clearly our rules take an entirely different approach. The issue of the citation is an administrative action. It is taken by the registrar without reference to a master or a judge and it cannot affect in any legal sense the position of the administrator of the estate. Of course it may have a profound practical effect. By way of example, a financial institution will not, generally speaking, open an account in the name of an executor or administrator without citing the grant of probate or the letters of administration. If such an account had been opened and a grant had been returned to the registry pursuant to a citation then it may be improper for an administrator to continue to operate an account without giving the financial institution notice the letters of administration had been returned to the registry pursuant to the citation.
21 All of that does not mean administration of the estate is entirely paralysed. Under s 35 of the Administration Act 1903 (WA) the court may appoint a manager and receiver of the estate pending litigation. Further, an administrator who has returned a grant may still seek directions under s 45 of the Administration Act. It is not difficult to imagine a circumstance where an administrator would seek to use one or other of these provisions.
22 That leaves open the question of the status of the administrator once the letters of administration have been returned pursuant to the citation. In my view, as a matter of law the person to whom the letters of administration have been granted remains the administrator of the estate. The practical difficulties the administrator may encounter is one thing. But unless and until the letters of administration are revoked there is no basis for suggesting the administrator cannot act on behalf of the estate. It may be in certain circumstances, a court would restrain an administrator from acting. For instance, if an administrator intended to make a distribution from the estate which was inconsistent with the alternative will a court could doubtless restrain the administrator from taking that action.
23 In this case there is no risk to the estate. The administrator is simply doing what any administrator or executor should do - she is attempting to ascertain what the assets of the estate are. This application is not mischievous; it is necessary. The reluctance of Tony Larussa to provide documents which are necessary to establish the extent of his late father's estate seems inexplicable. He can have no complaint when the plaintiff is doing nothing more or less than what she is obliged to do in her capacity as administrator.
24 For these reasons I am satisfied the orders sought by the plaintiff against the second defendant ought be made. I will hear the parties as to costs.
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