Genesian Theatre Company Inc v State of New South Wales

[2021] NSWSC 1089

Supreme Court

New South Wales

Medium Neutral Citation:

Genesian Theatre Company Inc v State of New South Wales [2021] NSWSC 1089

Hearing dates:

01 July 2021

Date of orders:

03 September 2021

Decision date:

03 September 2021

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Declare that upon their proper construction the words “… and any other persons …” in s 61B(8) of the Wills, Probate and Administration Act 1898, as in force at 14 February 2008, mean and include an individual, a corporation, and a body corporate.

(2) Declare that the plaintiff, Genesian Theatre Company Inc, as an incorporated association, is a person within the meaning of the words “… and any other person …” in s 61B(8) of the Wills, Probate and Administration Act 1898 as in force at 14 February 2008.

(3)   Each party is to pay its own costs of the proceedings.

Catchwords:

SUCCESSION – Administration of estates – persons entitled on intestacy – whether body corporate entitled to estate

STATUTORY INTERPRETATION – Definitions – Interpretation Act 1987 (NSW) s 21 – “person” – whether s 61B(8) of Wills, Probate, Administration Act 1898 is read to include body corporates as a person entitled to an intestate estate

Legislation Cited:

Interpretation Act 1987 (NSW)

Succession Act 2006 (NSW)

Succession Amendment (Intestacy) Act 2009 (NSW)

Wills, Probate and Administration Act 1898 (NSW)

Cases Cited:

Hunter Support Services Pty Ltd v The Children’s Guardian [2005] NSWSC 616

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) CLR 309

Kaldas v Barbour [2017] NSWCA 275

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Union Steamship Co of New Zealand Limited v Melbourne Harbour Trust Commissioners (1882) 8 VLR 167

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Genesian Theatre Company Inc (P)
State of New South Wales (D)

Representation:

Counsel:
D Bernie (P)
M Pringle (D)

Solicitors:
R Silverberg Solicitors (P)
Crown Solicitors Office (D)

File Number(s):

2020/359387

Publication restriction:

Not Applicable

Judgment

1. This judgment concerns the late Paula Anne Bate (“the Deceased”). The Deceased died on 14 February 2008, aged 68 years.

2. In late 2007 and early 2008, the Deceased instructed her solicitor to draft her final Will but, as things transpired, it was not executed by the time of her death. I will refer to this as the “unexecuted Will”. The Deceased died intestate and her Estate is therefore to be administered in accordance with Division 2A of the Wills, Probate and Administration Act 1898 (NSW) (“the Act”) as it was in effect at the time of her death.

3. The State of New South Wales (“the State”) has received the proceeds of the Deceased’s estate as bona vacantia. The State has refused an application to pay the balance of the Estate to the plaintiff because it says that upon the proper construction of the Act, it is not permitted to pay monies held bona vacantia to a body corporate.

4. On…