In re the estate of Loo (Deceased)

[2023] NSWSC 519

Supreme Court

New South Wales

Medium Neutral Citation:

In re the estate of Loo (Deceased) [2023] NSWSC 519

Hearing dates:

17 – 18 May 2023

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Equity - Duty List

Before:

Hammerschlag CJ in Eq

Decision:

Grant of special administration ad colligenda bona defuncti and transfer to Supreme Court of Western Australia. See [9]

Catchwords:

DECEASED ESTATES – Application for a grant of special administration ad colligenda bona defuncti – Where deceased was the shareholder in and sole director of a company which has received a creditor’s statutory demand under the Corporations Act 2001 (Cth) – Where it is not known with certainty if the deceased left a will but none has presently been found – Necessity for the appointment of a special administrator to protect the interests of the company which may need to bring an application to set aside the statutory demand – Where time limit will imminently expire – HELD – Orders made for the grant of special administration ad colligenda bona defuncti

JURISDICTION – Where the plaintiff is resident in Western Australia, the company’s registered office is in Western Australia and all other potentially interested persons are in Western Australia – Jurisdiction to make the orders sought conferred on the Court by Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9(a)

Legislation Cited:

Administration Act 1903 (WA)

Corporations Act 2001 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Supreme Court Act 1935 (WA)

Cases Cited:

Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79

Application of Rinehart [2020] NSWSC 1624

Fazio v Naso [2016] WASC 385

Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351

Category:

Principal judgment

Parties:

Hon Fa Kung (Plaintiff)

Representation:

Counsel:
R Chen / N Li (Plaintiff)

Solicitors:
AusJuris Legal (Plaintiff)

File Number(s):

2023/00157787

EX TEMPORE JUDGMENT (REVISED)

1. As a matter of urgency, the plaintiff, who is the widow of the late Lean Foo Loo (the Deceased) who passed away on 3 March 2023, moves the Court by Summons sued out (with leave) on 17 May 2023 for a grant of special administration ad colligenda bona defuncti with respect to the estate of the Deceased.

2. The circumstances which necessitate the application are:

1. the Deceased apparently did not leave a will, but if he did it has not yet been found. Presently, there is no named potential executor;

2. the Deceased owned all of the shares in, and was the sole director of, a company, Imperial Plasterboard Supplies Pty Ltd ACN 601 651 558 (the Company);

3. the Company has received a creditor’s statutory demand under s 459E of the Corporations Act 2001 (Cth) for $195,463.87;

4. the statutory period for the Company to apply to a court of jurisdiction to set aside the demand will expire next Monday, 22 May 2023; and

5. the Company is rudderless. There is no one in control of the Company to protect its interests.

3. The grant sought is limited to doing those things necessary to protect the Company’s interests with respect to the statutory demand.

4. The plaintiff is resident in Western Australia and the Company’s registered office is also in that State.

5. However, Mr Man Chun Yeung, the plaintiff’s solicitor, gave evidence that she speaks Mandarin and Cantonese. She speaks very little English. The Plaintiff sought to retain a Western Australian solicitor who speaks a Chinese language, but it transpired that the solicitor appeared not to have experience in this type of matter. Hence, Mr Yeung, who is a Sydney solicitor and friend, accepted instructions to act for her on this application. In the time available prior to the expiry of the statutory period to make an application in connection with the statutory demand, it would apparently not be feasible to find another Chinese speaking practitioner in that State.

6. Section 18 of the Supreme Court Act 1935 (WA) and s 4 of the Administration Act 1903 (WA) confer on the Supreme Court of Western Australia jurisdiction to make the orders sought.

7. There is no suggestion that the estate of the Deceased includes any property in this State.

8. I am conscious of the fact that in granting this urgent relief, I am doing so exercising jurisdiction conferred on this Court by the combined effect of s 9(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA): see Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351; Application of Rinehart [2020] NSWSC 1624.

9. The orders sought are in line with orders made by Parker J in Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79. The principles which apply to making such orders are the same in Western Australia and this State: see, eg, Fazio v Naso [2016] WASC 385 at [9]-[10] per Master Sanderson.

10. I think it is appropriate for the Court mero motu to transfer the matter to the Supreme Court of Western Australia and to note that the plaintiff has undertaken to the Court to make an application to the Supreme Court of Western Australia for an ordinary grant of administration of the Deceased’s estate as soon as reasonably practicable after having obtained control of the assets the subject of this grant.

11. I make orders in accordance with the Short Minutes of Order which I have initialled, dated today’s date, stamped with the Court’s seal and placed with the papers, as follows:

1. Order that a grant of special administration ad colligenda bona defuncti be granted to Hon Fa KUNG (Plaintiff) in the estate of the late Lean Foo LOO.

2. Order that the grant not include the power to distribute assets.

3. Order that publication of the notice of intention to make the application be dispensed with, for the purposes of the application for this grant only.

4. Order that the administration bond and sureties be dispensed with, for the purposes of the application for this grant only.

5. Order that further compliance with the probate rules be dispensed with, for the purposes of the application for this grant only.

6. Order that there be liberty to apply.

7. Order that the plaintiff’s administration of the estate be otherwise limited to:

1. Gaining control of the company known as Imperial Plasterboard Supplies Pty Ltd (ACN 601 651 558) (the “Company”);

2. Acting as trustee in respect of the shares in the Company;

3. Appointing the Plaintiff or any suitable person as director of the Company;

4. Defending any claims against the Company, including institution of proceedings to set aside any statutory demand(s) issued against the Company; and,

5. Anything incidental or reasonably necessary, including but not limited to executing all instruments, for any of the above;

Until a grant of further administration is made or until further orders of the Court or any other Court within Australia.

8. Order that the costs of these proceedings be paid out of the estate on an indemnity basis.

9. Notes that the plaintiff undertakes to make an application to the Western Australian Supreme Court for an ordinary grant of administration of the deceased’s estate as soon as reasonably practicable after having obtained control of the assets the subject of this grant.

10. These orders are to be entered forthwith.

11. These proceedings are transferred to the Supreme Court of Western Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

**********

Decision last updated: 19 May 2023