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English v Stewart

English v Stewart

Case [2022] NSWSC 268 17 March 2022

Notice Barring Claims

Executors and Administrators

Succession Law

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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:
Greg Waugh SC and Anna Garsia (Plaintiff)
Solicitors:
McArthur Legal Services (Plaintiff)

File Number(s): 2021/333078
Publication restriction: Nil

JUDGMENT

Introduction

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.
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).
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…

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.

Continue reading English v Stewart

Details

AGLC: English v Stewart [2022] NSWSC 268
Case: [2022] NSWSC 268
Decision Date: 17 March 2022

CaseChat Overview and Summary

The case of English v Stewart involved a dispute concerning the interpretation and application of sections 92 and 93 of the Wills, Probate and Administration Act 1898. The plaintiff, English, sought to challenge the validity of a notice barring claims issued by the defendant, Stewart, who was the executor of a deceased's estate. English argued that the notice was invalid as it did not comply with the requirements of section 93 of the Act. The matter was heard in the Supreme Court of New South Wales, which had to determine the legal issues surrounding the notice's validity.

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