Goodsall v Keen - [2006] NSWSC 1143

CITATION: Goodsall v Keen - Estate of Sydney Arthur Keen [2006] NSWSC 1143

HEARING DATE(S): 30 October 2006

JUDGMENT DATE :
30 October 2006

JURISDICTION: Equity
Probate List

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 10/30/2006

DECISION: Application for appointment of administrator pendente lite refused, but with liberty to restore. Order for segregation of money accruing due to estate

CATCHWORDS: SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – administrator pendente lite – when appointed – orders short of appointment of administrator pendente lite to enable specific practical problem to be dealt with.

LEGISLATION CITED: Wills, Probate and Administration Act 1898

CASES CITED: Horrell v Witts and Plumley (1866) LR 1 P & D 103

PARTIES: Paul Millington Goodsall - Plaintiff/Applicant
Timothy Garth Keen - Defendant/Respondent

FILE NUMBER(S): SC 102244/06

COUNSEL: E Cox - Plaintiff
M Willmott SC; R Potter - Defendant

SOLICITORS: Gillis Delaney Lawyers - Plaintiff
Teece Hodgson & Ward - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

MONDAY 30 OCTOBER 2006

102244/06 PAUL MILLINGTON GOODSALL v TIMOTHY GARTH KEEN – ESTATE OF SYDNEY ARTHUR KEEN

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is the hearing of a Notice of Motion which seeks amongst other things the appointment of an administrator pendente lite of a deceased estate. The estate is that of the late Sydney Arthur Keen, who died on 1 July 2005. There is a contest about the capacity of the deceased at the time he executed his last will.

2 The deceased was the proprietor of a private hospital. That hospital was conducted through a company, Hirondelle Private Hospital Pty Limited. That company had 100 shares, of which 99 were held by the deceased, and the remaining share was held by the deceased’s son, Mr Timothy Keen.

3 In the years shortly before the death of the deceased most of the practical decisions about the operation of the hospital had been taken by Mr Timothy Keen.

4 The substantial assets of the estate are some parcels of land at Chatswood on which the hospital is conducted, a home at Killara, and the shares in Hirondelle Private Hospital Pty Limited. There is also a Rolls Royce motorcar, and various other smaller assets.

5 Since the death of the deceased the company has been continuing to conduct the hospital. Prior to the death of the deceased the company paid him rental, at the rate of $20,000 plus GST per month, for the premises. As well, it made substantial distributions to him. In the year ended 30 June 2005 dividends of some $280,000 were paid to him.

6 Since his death the hospital has continued to be operated, under the management of Mr Timothy Keen, and the Director of Nursing of the hospital, who is a longstanding employee.

7 There have been some unusual transactions, in that tax invoices, purportedly issued on behalf of the estate, have been sent to the company for the monthly rentals. As well, it is…

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 Goodsall v Keen

Details

AGLC: Goodsall v Keen - Estate of Sydney Arthur Keen [2006] NSWSC 1143
Case: [2006] NSWSC 1143
Decision Date: 30 October 2006 ex tempore

CaseChat Overview and Summary

The case of Goodsall v Keen involved a dispute regarding the administration of the estate of the deceased, Mr. Goodsall. The primary issue was whether an administrator pendente lite could be appointed to address a specific, immediate practical problem arising from the estate's administration. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to address included whether the appointment of an administrator pendente lite was necessary in this particular case and whether the court could make orders short of full appointment to manage the immediate problem. The court also had to consider the principles governing the appointment of an administrator pendente lite and whether these principles allowed for such interim measures.

The court reasoned that while the general practice was to appoint an administrator pendente lite to manage the entire estate, there were circumstances where specific, interim measures could be appropriate. In this case, the court found that the practical problem at hand was both urgent and narrowly scoped, and thus, warranted a more tailored approach. The court concluded that it had the discretion to make orders short of full appointment to address the immediate issue, thereby avoiding the need for a full administrator pendente lite. This decision was based on the principle that the court should act to prevent injustice and ensure the efficient administration of estates.

The final orders of the court allowed for the appointment of an interim administrator to deal with the specific practical problem, reflecting a pragmatic approach to the administration of estates. This decision underscored the flexibility of the court in addressing the immediate needs of estate administration while adhering to the broader principles of succession law.

Orders