Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: DJ Singh v DH Singh and Others [2017] NSWCA 234 Hearing dates: 14 September 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Before: Gleeson JA Decision: (1) The Court notes the undertaking given to the Court by the first and second respondents, by their counsel, that they will not, by themselves either jointly or individually, or by their servants or agents, make any distribution to any beneficiary from the estate of the late Douglas John Singh (“the deceased”), or cause to be charged or mortgaged any of the assets of the estate of the deceased (whether held beneficially or otherwise), provided that this undertaking shall not prevent the executor respondents from paying expenses incurred in the ordinary course of the administration of the estate of the deceased, including taxation, but not including the costs of the appeal proceedings or the proceedings below, until 29 days after judgment is given in both appeal proceedings 2015/319432 and 2017/156218.
(2) Confirm order 1 made by the Registrar on 4 September 2017.
(3) Dismiss the applicant’s amended notice of motion dated 10 September 2017.
(4) Order that the applicant pay 85 percent of the first and second respondents’ costs of the motion, including the amended motion dated 10 September 2017.Catchwords: PROCEDURE – judgments and orders – where applicant sought stay of order granting probate of a will pending the hearing of an appeal – where volume of evidence before the Court prevents displacement of presumption that appeal is arguable – whether balance of convenience favours the grant of a stay – where contracts for the sale of properties that fall into residue under the will have been completed or will soon complete – where executors will breach uncompleted contracts for sale if stay is granted – where executors have undertaken not to make any further distributions from the estate and not to pay legal costs until appeals are decided.
PROCEDURE – where applicant seeks review of Registrar’s decision on matter of practice or procedure – whether applicant has demonstrated basis for discretionary intervention.
SUCCESSION – where applicant seeks full accounting for the executors’ administration – any claim for accounts should be made in the probate proceedings pursuant to Supreme Court Rules 1970, Pt 78, rr 75 and 89.Legislation Cited: Civil Procedure Act 2005 (NSW), s 61(3), 98
Probate and Administration Act 1898 (NSW), 85(1A), 85(2)
Succession Act 2006 (NSW) s 27, Ch 3
Supreme Court Act 1970 (NSW), s 46(4), 121(3)
Supreme Court Rules 1970, Pt 78, rr 75, 89
Uniform Civil Procedure Rules 2005 (NSW), r 18.4, 49.19, 51.1(3)Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425
Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12
Doppstadt Australia Pty Ltd v…
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- AGLC
- DJ Singh v DH Singh [2017] NSWCA 234
- Case
- [2017] NSWCA 234
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the applicant had demonstrated a sufficient basis for discretionary intervention to grant a stay of the probate order, and whether the balance of convenience favoured such a stay. A further issue was whether the applicant had made a proper claim for a full accounting from the executors, and if so, in what forum.
Gleeson JA considered the volume of evidence, which prevented the displacement of the presumption that the appeal was arguable. However, the court found that the balance of convenience did not favour a stay. This was because contracts for the sale of properties forming part of the residue of the estate had either been completed or were close to completion, and granting a stay would likely cause the executors to breach these uncompleted contracts. The court noted that the executors had provided undertakings not to make further distributions or pay legal costs until the appeals were decided, and that any claim for a full accounting should be made within the probate proceedings.
The Court confirmed an order made by the Registrar, dismissed the applicant's amended notice of motion, and ordered the applicant to pay 85 percent of the respondents' costs of the motion.
Orders
Orders of the court
(1) The Court notes the undertaking given to the Court by the first and second respondents, by their counsel, that they will not, by themselves either jointly or individually, or by their servants or agents, make any distribution to any beneficiary from the estate of the late Douglas John Singh (“the deceased”), or cause to be charged or mortgaged any of the assets of the estate of the deceased (whether held beneficially or otherwise), provided that this undertaking shall not prevent the executor respondents from paying expenses incurred in the ordinary course of the administration of the estate of the deceased, including taxation, but not including the costs of the appeal proceedings or the proceedings below, until 29 days after judgment is given in both appeal proceedings 2015/319432 and 2017/156218.
(2) Confirm order 1 made by the Registrar on 4 September 2017.
(3) Dismiss the applicant’s amended notice of motion dated 10 September 2017.
(4) Order that the applicant pay 85 percent of the first and second respondents’ costs of the motion, including the amended motion dated 10 September 2017.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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