De Lorenzo v De Lorenzo - [2019] NSWSC 534

Supreme Court

New South Wales

Medium Neutral Citation: De Lorenzo v De Lorenzo [2019] NSWSC 534
Hearing dates: 26 April 2019
Decision date: 15 May 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Subject to order 2, order that the plaintiff have leave to file in Court a verified statement of claim in the form of the statement of claim appearing at CB 38ff in substitution for the summons filed 8 November 2018, such statement of claim to take effect from the date of the filing of the statement of claim.
2.   Order that the leave granted in order 1 be conditional on the plaintiff undertaking to the Court that, unless authorised by the Court so to do, he will not claim indemnification for the costs of the conduct of the proposed proceedings (whatever the outcome of those proceedings) out of the deceased’s estate.
3.   Otherwise dismiss the plaintiff’s notice of motion filed 14 November 2018.
4.   Order that the costs of the plaintiff’s notice of motion filed 14 November 2018 be costs in the cause.
5.   Note that, to the extent that the plaintiff has a direct and obvious personal interest in the outcome of the proceedings that he intends to bring in his capacity as executor of the deceased’s estate, and has sought leave to do so without seeking judicial advice as to whether he would be justified in so doing on behalf of the estate, he does do at the risk that he will not be entitled to indemnification out of the assets of the estate for the costs of those proceedings irrespective of the outcome of the proceedings and that he will be personally liable for those costs.

Catchwords: SUCCESSION – PRACTICE AND PROCEDURE –notice of motion seeking leave to file statement of claim replacing summons – continuation of matter on pleading – whether plaintiff should be appointed to represent interests of estate – plaintiff has personal interest in outcome of proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61 and 64
Companies (New South Wales) Code 1981 (NSW), sch 3
Competition and Consumer Act 2010 (Cth), sch 2, ss 20, 236 and 237
Corporations Act 2001 (Cth)
Fair Trading Act (1987) NSW, s 28
Trustee Act 1925 (NSW), ss 59, 63
Uniform Civil Procedure Rules 2005 (NSW), rr 6.6 and 7.10
Cases Cited: Byers v Overton Investments Pty Limited (2001) 109 FCR 554; [2001] FCA 760
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75
Drummond v Drummond [1999] NSWSC 923
Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705; (2009) 3 ASTLR 407
HIH Insurance Ltd (In Liq) ACN 008 636 575; FAI General Insurance Company Ltd (In Liq and subject to a scheme of company arrangement) [2018] NSWSC 1886
Holt v Cox [1994] 15 ACSR 313
John v John [2010] NSWSC 937
Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 61
Kauter v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 534
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the Family Court of Australia, De Lorenzo sought leave to file a statement of claim replacing a summons, which had been issued to establish the validity of a will and to administer the deceased's estate. The respondent, De Lorenzo, contested the application on the grounds that the plaintiff had a personal interest in the outcome of the proceedings, which would conflict with their role as a representative of the estate. The court was required to determine whether the plaintiff should be appointed to represent the interests of the estate and if they should be granted leave to file the statement of claim.

The court considered the conflict of interest that would arise if the plaintiff were appointed as the representative of the estate while simultaneously proceeding with their claim. The court acknowledged that it is generally in the best interests of the estate for the plaintiff to act as the representative, but this was weighed against the potential conflict of interest. The court found that the conflict of interest was significant and that it was necessary to protect the interests of the estate by appointing an independent representative. Consequently, the court decided that the plaintiff should not be appointed to represent the interests of the estate and denied the application for leave to file the statement of claim.

The court emphasised the importance of maintaining the independence of the representative of the estate to avoid conflicts of interest and to ensure that the best interests of the estate are prioritised. The court held that the plaintiff's personal interest in the outcome of the proceedings disqualified them from acting as the representative of the estate. As a result, the application for leave to file the statement of claim was dismissed, and the matter was continued on the pleading to allow for the appointment of an independent representative.

Orders