Hitchins, S.M. v Roksandic, Z - [1989] FCA 411

Re: SANDRA MIA HITCHINS
And: ZARKO ROKSANDIC and PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL
TERRITORY
No. ACT G41 of 1988
FED No. 411
Probate and Administration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Neaves(1) and von Doussa(1) JJ.

CATCHWORDS

Probate and Administration - intestacy - Cross-applications by beneficiaries entitled to estate - Disputation between the applicants as to who should be granted administration and as to property comprising the estate - Exercise of discretion by primary judge to appoint as administrator Public Trustee for the Australian Capital Territory - Appeal by one beneficiary - Whether beneficiary entitled to grant in priority to Public Trustee - Whether Public Trustee properly joined as a respondent to the appeal.

Administration and Probate Act 1929 (A.C.T.), ss 10A, 12, 24

Federal Court Rules, Order 52, sub-rule 14(1).

HEARING

CANBERRA

#DATE 31:7:1989

The appellant appeared in person.

Counsel for the first respondent : Mr T.M. Johnstone

Solicitors for the first respondent : Gallens Crowley & Chamberlain

Counsel for the second respondent : Mr R.L. Crowe

Solicitor for the second respondent : Australian Government Solicitor

ORDER

The Public Trustee for the Australian Capital Territory cease to be a party to the appeal.

The appellant pay the costs of the Public Trustee for the Australian Capital Territory of the motion notice of which was given on 4 July 1989.

The appeal be dismissed.

The appellant pay the first respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) given on 15 August 1988 whereby the Court ordered that the Public Trustee for the Australian Capital Territory be appointed to administer the estate of Ivan Roksandic (also known as Rok Sandy) late of Wollongong in the State of New South Wales, deceased, and that the costs of both parties to the proceedings in that Court be paid out of the assets of the estate of the deceased.

Before the Supreme Court were cross-applications for the grant of Letters of Administration of the estate of the deceased who died on 27 February 1980. The deceased, who was, at the date of his death, domiciled in New South Wales, left assets both in that State and in the Australian Capital Territory. The applications were respectively made by the only known issue of the deceased, namely Sandra Mia Hitchins ("the appellant") and her brother Zarko Roksandic ("the first respondent"). At the date of his death the deceased was unmarried. He died without leaving a valid will. So far as has appeared, the appellant and the first respondent are the only beneficiaries entitled to share in the estate.
Before the Supreme Court, the appellant and the first respondent relied on extensive affidavit evidence to the detail of which it is unnecessary to refer. Suffice it to say that the evidence establishes beyond any…

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.

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Details

Case: [1989] FCA 411
Decision Date: 31 JULY 1989

CaseChat Overview and Summary

Hitchins, S.M. has appealed against the decision of the primary judge who appointed the Public Trustee for the Australian Capital Territory as the administrator of the estate of the deceased. The deceased died intestate and various applicants sought administration of the estate. After considering the applications, the primary judge exercised his discretion to appoint the Public Trustee as administrator. The appellant, one of the beneficiaries, contends that she should have been granted administration of the estate and appeals against the decision. The appellant also contends that the Public Trustee was not properly joined as a respondent to the appeal.

The legal issues that arose in the case were whether the appellant was entitled to grant in priority to the Public Trustee and whether the Public Trustee was properly joined as a respondent to the appeal. The court had to consider the statutory provisions governing the appointment of administrators and the rules of court that govern the joinder of parties to an appeal. The court had to determine whether the appellant had standing to appeal and whether the Public Trustee was a necessary party to the appeal.

The court found that the primary judge had correctly exercised his discretion to appoint the Public Trustee as the administrator of the estate. The court held that the appellant had no entitlement to grant in priority to the Public Trustee and that the Public Trustee was a necessary party to the appeal. The court dismissed the appeal and ordered the Public Trustee to cease being a party to the appeal. The appellant was ordered to pay the costs of the Public Trustee and the first respondent.

Orders

Orders of the court

The Public Trustee for the Australian Capital Territory cease to be a party to the appeal.

The appellant pay the costs of the Public Trustee for the Australian Capital Territory of the motion notice of which was given on 4 July 1989.

The appeal be dismissed.

The appellant pay the first respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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