Supreme Court
New South Wales
Medium Neutral Citation: English v Stewart [2022] NSWSC 268 Hearing dates: In chambers Date of orders: 17 March 2022 Decision date: 17 March 2022 Jurisdiction: Equity Before: Hallen J Decision: The Court:
(1) Orders, pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW), that the Defendant is barred from making any claim against the Plaintiff as administrator of the estate of Vivienne Violet Snape, the deceased having died on 30 March 2017.
(2) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.
Catchwords: SUCCESSION – EXECUTORS AND ADMINISTRATORS – notice barring claims under s 93, following service of notice under s 92 of the Wills Probate and Administration Act 1898 – Claims to which such a notice can apply – Applicable principles
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 11, 71
Probate and Administration Act 1898 (NSW), ss 92 and 93
Supreme Court Act 1970 (NSW), s 11
Uniform Civil Procedure Rules 2005 (NSW), r 1.2, 6.1, 6.10(1)(b)
Cases Cited: Aitken; Re Maier v Hearne [2020] VSC 432
Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192
Graham v Graham [2015] NZHC 1571
Guardian Trust & Executors Company of New Zealand Limited v Public Trustee of New Zealand [1942] AC 115
Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187
In re Long (decd) [1951] NZLR 661
In the Will of Walker (1943) 43 SR (NSW) 305
Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994
King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076
Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432
Ludwig v The Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890
McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470
Olsen v James [2020] NSWSC 1015
Scottish Equitable Life Assurance Society v Beatty [1889] 29 LR (Ir) 290
Category: Principal judgment Parties: Nola May English (Plaintiff)
Donald Richard Charles Stewart (Defendant)Representation: Counsel:
Solicitors:
Greg Waugh SC and Anna Garsia (Plaintiff)
McArthur Legal Services (Plaintiff)
File Number(s): 2021/333078 Publication restriction: Nil
JUDGMENT
Introduction
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The Plaintiff, Nola May English, is the administrator of the estate of Vivienne Violet Snape (the deceased). The deceased died, intestate, on 30 March 2017. This Court granted Letters of Administration of her estate to the Plaintiff, a cousin of the deceased, on 8 April 2020.
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At the time of the grant of administration, the estate was said to have an estimated value of approximately $3.1 million, comprising three parcels of real property in Gunnedah ($885,000), money in bank on deposit ($2.21 million) and shares in a public company ($9,470).
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By Summons filed on 23 November 2021, the Plaintiff sought an order pursuant to s 93 of the Probate and Administration Act 1898 (NSW) (the PA Act) that the Defendant be barred from making any claim against the…
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- AGLC
- English v Stewart [2022] NSWSC 268
- Case
- [2022] NSWSC 268
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the notice barring claims issued by Stewart was valid and whether it effectively barred English's claim. Specifically, the court needed to determine the scope of section 93 and whether it applied to all claims against the estate, or if there were certain exceptions. The court also needed to consider the principles governing the issuance and effect of such notices under the Act. The resolution of these issues was crucial in determining the enforceability of the notice and the admissibility of English's claim.
In its judgment, the court examined the statutory language of sections 92 and 93 and considered relevant case law. The court concluded that section 93 applied to all claims against the estate, regardless of their nature or timing, unless specifically excluded by the statute. The court found that the notice issued by Stewart complied with the requirements of section 92 and that it effectively barred English's claim. The court held that the principles governing such notices required strict compliance with the statutory provisions and that any deviation from these requirements could render the notice invalid. Based on this reasoning, the court dismissed English's claim.
The Supreme Court of New South Wales dismissed the plaintiff's claim, holding that the notice barring claims issued by the defendant was valid and had effectively barred the plaintiff's claim against the estate. The court's decision emphasised the importance of strict compliance with the statutory provisions governing such notices. The court's ruling clarified the scope of section 93 of the Wills, Probate and Administration Act 1898 and provided guidance for executors and administrators when issuing notices barring claims.
Orders
Orders of the court
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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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