In the Estate of Hugh Grant Rowell Deceased (No 2)

[2006] SASC 314

Supreme Court of South Australia

(Civil: Application)

In the Estate of HUGH GRANT ROWELL DECEASED (NO 2)

[2006] SASC 314

Judgment of The Honourable Justice Debelle (ex tempore)

10 October 2006

PROFESSIONS AND TRADES - LAWYERS - OTHER MATTERS

Sole practitioner - practitioner dies - management of practice - application pursuant to s 50 of the Legal Practitioners Act 1981 - whether it is appropriate for personal representative of deceased legal practitioner to carry on the practice of the deceased practitioner - appointment of a supervisor who holds practising certificate.

In the Estate of HUGH GRANT ROWELL DECEASED (NO 2)
[2006] SASC 314

Civil

1. DEBELLE J.  (ex tempore) This is an application made pursuant to s 50 of the Legal Practitioners Act 1981 to enable a personal representative to carry on the legal practice of a deceased legal practitioner.

2. Hugh Grant Rowell deceased was a legal practitioner. He died on 23 September 2006. At the time of his death he carried on the practice of Rowell Forrest & Co as a sole practitioner.

3. The deceased left a Will made on 21 April 1988. By that will he appointed his wife, Heather Margaret Rowell, his sole executor provided that she survived him by one calendar month. If she did not so survive him, he appointed Mr H.J.F. Treloar and Mr P.J. England as executors and trustees of his Will.

4. The deceased died suddenly. His practice was a busy one. Mrs Rowell seeks to continue the practice pending an opportunity to sell it. Mrs Rowell is not a legal practitioner. She has therefore made an application pursuant to s 50 of the Legal Practitioners Act for authority to carry on the practice of Rowell Forrest & Co for a period not exceeding 12 months from the date of the death of the deceased. Section 50(1) is in these terms:

   The personal representative of a deceased legal practitioner may, with the authority of the Supreme Court, carry on the practice of the deceased legal practitioner for a period not exceeding 12 months (or such longer period as the Supreme Court may allow) from the date of death.

   Section 50(4) permits the Court to impose such conditions as it considers appropriate.

5. Mrs Rowell is not able to apply for an order as executrix of the estate given that the period of one month provided for in the Will has not yet expired. It is plainly necessary for Mrs Rowell to make an application under s 50 as soon as is reasonably possible in order to preserve to the best possible advantage the practice of Rowell Forrest & Co. It is an asset of the estate of the deceased and it is proper that all appropriate steps be taken to preserve that asset. Given that she could not apply as executrix of the estate of the deceased, Mrs Rowell applied for an order for a limited grant of letters of administration ad colligenda bona. On 4 October 2006 letters of administration ad colligenda bona were granted to Mrs Rowell limited to the purpose of collecting in the personal estate of the deceased which is represented by the legal practice of Rowell Forrest & Co and to the purpose also of applying to this Court for an order pursuant to s 50 of the Legal Practitioners Act.

6. As Mrs Rowell is not herself a legal practitioner, the proper protection of the interests of the clients of the firm requires that a person who holds a practising certificate should supervise and manage the firm. Howard John Francis Treloar has for a long time been a legal practitioner. He retired a short time ago but has renewed his practising certificate. He is willing to supervise and manage the legal practice of Rowell Forrest & Co.

7. I do not think an order could be made under s 50 unless a person who holds a practising certificate and who has a relatively long experience as a legal practitioner is in a position to manage the business of the firm. That is plainly necessary in the interests of the clients of the practice. Given that Mr Treloar has consented to act in this capacity, it is appropriate to make the orders sought by Mrs Rowell.

8. For these reasons there will be orders as follows:

   1.That Heather Margaret Rowell as the personal representative of Hugh Grant Rowell deceased who died on 23 September 2006 be authorised to carry on the legal practice of the deceased known as Rowell Forrest & Co for a period of 12 months expiring on 23 September 2007 subject to the following conditions:

   (a)that the practice of the deceased be supervised by Howard John Francis Treloar, a practitioner of this Court;

   (b)that the said Howard John Francis Treloar hold a practising certificate; and

   (c)that, if the said Howard John Francis Treloar is unable to continue to supervise the legal practice of Rowell Forrest & Co, the applicant shall forthwith apply to this Court for an order substituting another legal practitioner in his place as supervisor.

   2.Liberty to apply.