Commonwealth Bank of Australia v Hilton

[2013] QDC 221

[2013] QDC 221

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No. 4643 of 2012

COMMONWEALTH BANK OF AUSTRALIA  Plaintiff

and

DAVID TROY HILTON  Defendant

BRISBANE

10.58 AM, TUESDAY, 21 MAY 2013

ORDER

CATCHWORDS

Succession Act 1981, s45, s72
Public Trustee Act 1978 s23(3)
Uniform Civil Procedure Rules r71

Mode of service of claim and statement of claim seeking recovery of mortgaged premises of a deceased mortgagor where his defacto partner’s application for probate is held up by caveats

HIS HONOUR:   The court makes an order in terms of the initialled draft which authorises service of the claim and statement of claim together with a copy of the order on the defendant by posting to a firm of lawyers to a named lady care of her lawyers – they are acting for her in her application before the Supreme Court to be granted administration of the estate of David Roy Hilton who died in May 2011.

She was the de facto partner of the late Mr Hilton whose estate is the named defendant in this proceeding.  That’s how she described herself in a notice of the death which she gave to the plaintiff.  She was also the informant for the purposes of notifying the death to the Registrar General. 

The plaintiff’s claim is the common one seeking possession of mortgaged premises and payment of the amount secured by mortgage over the premises. There was more than a year elapsing before default in meeting the mortgage terms arose in circumstances leading the bank to determine to enforce its rights on default. The Succession Act creates a number of issues for a plaintiff in such circumstances where there is no one with lawful entitlement to administer the estate. Rule 71 allows proceedings to be commenced in the name of the estate in circumstances where a person has died before commencement of the proceeding, no ground of representation has been made and the cause of action, survives death. All of those conditions are satisfied.

The application before the court contemplated service on the deceased’s partner and further alternatively upon the Public Trustee. The Public Trustee’s involvement arises under section 45 of the Succession Act 1981. A deceased person’s property vests in the Public Trustee if there’s no executor or no executor able and willing to act. It’s established that there’s been communication with the Public Trustee eliciting recently a response. The Public Trustee has no interest in the matter given the pending Supreme Court application. Its progress has been delayed by the lodging of caveats, at least one of which may still remain, by family members of the deceased. In those circumstances there’s no reason for the Public Trustee to be further involved. See section 45 (6) and also section 27 (3) of another act, the Public Trustee Act 1978, which confirms that the public trustee’s consent to act in any capacity is necessary except where that’s excused by legislation. 

The next section of the Succession Act of relevance is Section 72 which provides that in any case where any person decides to effect within a prescribed time service of any proceedings against the estate of a deceased person and is uncertain as to the person upon whom service should be effected, the court may, if application for directions is made to it within the time prescribed for service, direct a mode of service. Ms Sing helpfully suggests that the prescribed time relevant here is the 12 months allowed for service of originating proceedings. The more usual case might be of a shorter period allowed in respect of claims for further provision out of deceased estates.

The order now proposed is appropriate.  In response to my enquiry as to whether there’s any precedent for the stipulation that if no notice of intention to defend and

defence is filed within 28 days of deemed service the Registrar is directed to be satisfied of service and is authorised to enter default judgement against the defendant upon any request in that regard filed by the plaintiff,  Ms Sing referred me to the case of  Permanent Custodians Limited  ACN 001 426 384 v Elisaia Leota before Daubney J on the 23 December 2010..

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