Griffin v Matthews

This matter concerned an appeal to the Court of Appeal of New South Wales by the applicants (executors) against an interlocutory decision of Davies J in the Equity Division. The primary dispute involved allegations of intermeddling in an estate, where the estate's main asset was a single share in a company. One of the appointed executors had been appointed as a director of the company prior to the grant of probate, with the apparent approval of the other named executors.

The legal issues before the Court of Appeal included whether the conduct of the executor in taking up a directorship constituted intermeddling in the estate before probate was granted. The court also considered whether the pleadings disclosed a reasonable cause of action, in the context of an application for summary dismissal of the claim against one of the defendants. This involved an assessment of whether the claim had an arguable basis and whether striking out the pleadings would lead to injustice.

The Court of Appeal allowed the appeal, setting aside the order of Davies J that had dismissed the claim concerning the pre-probate period against the second defendant. The court reasoned that the claim against the second defendant in relation to the pre-probate period was arguable and should not have been summarily dismissed. The principles applied included those concerning the interpretation of intermeddling in an estate and the test for summary dismissal under the Uniform Civil Procedure Rules 2005 (NSW), drawing on authorities such as *Wickstead v Browne*.

The Court of Appeal ordered that leave to appeal be granted, the appeal be allowed, and the order of Davies J be set aside. In its place, the court ordered that the second defendant's application to dismiss the claim for the pre-probate period be dismissed, with no order as to the costs of that motion. The applicants were awarded their costs in the Court of Appeal, and the respondent was granted a certificate under the Suitors' Fund Act 1951 (NSW).