In the Estate of NICHOLLS (DECEASED)
[2012] SASC 53
•2 April 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of NICHOLLS (DECEASED)
[2012] SASC 53
Judgment of The Honourable Justice Stanley
2 April 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - FOREIGN GRANTS - RESEAL - JURISDICTION AND IN GENERAL
Application for directions made by Registrar of Probates – deceased died in SA leaving a will made in NSW appointing Public Trustee of NSW as executor and trustee – grant of probate obtained in Supreme Court of NSW by NSW Trustee and Guardian – an officer of NSW Trustee and Guardian applied for a re-seal of grant of probate in Supreme Court of SA - whether the NSW Trustee and Guardian is a “Trust corporation” for the purposes of r 50 of the Probate Rules 2004 (SA) – whether the applicant for re-sealing has the necessary authority to make the application on behalf of the NSW Trustee and Guardian.
Held: the NSW Trustee and Guardian is a “Trust corporation” for the purposes of r 50.01 of the Probate Rules 2004 (SA) – the CEO has effectively delegated the power to make application for re-seal of grant of probate and to sign, swear or affirm all supporting affidavits on behalf of the NSW Trustee and Guardian. Direct the Registrar to re-seal the grant of probate made by the Supreme Court of NSW.
Acts Interpretation Act 1915 (SA) s 4; Administration and Probate Act 1919 (SA) s 5, s 8, s 17; ANZ Executives and Trustee Company (South Australia) Limited Act 1985 ; Bagot’s Executor Company Act 1910 ; Corporations Act 2001 (Cth) ch 5D, s 601RAA, s 601RAB; Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (Cth) Sch 2; Corporations Regulations 2001 (Cth) reg 5D.1.01, sch 8AA; Elder’s Executor Company’s Act 1910 ; Executors Company’s Act 1885 ; Farmers’ Co-operative Executors Act 1919 ; NSW Trustee and Guardian Act 2009 (NSW) s 3, s 5, s 6, s 7, s 8, s 9, s 10, s 11, s 16, s 22, sch 1; Probate Rules 2004 (SA) r 3, r 50; Public Trustee Act 1995 (SA) s 4, s 5, s 7; Trustee Companies Act 1988 (SA) s 3, s 4, sch 1, sch 2, referred to.
Catto v Hampton Australia Ltd (In Liq) (No 3) (2004) 89 SASR 234; In the Estate of Horvath (Deceased) (2007) 249 LSJS 91; In the estate of Rogowski (Deceased) (2007) 248 LSJS 274; Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; R v London County Council [1893] 2 QB 454, discussed.
Baird v Tunbridge Wells [1894] 2 QB 867; Burns Philp & Co Ltd v Murphy (1983) 29 NSWLR 723; Freisleben v Nisselle [1999] VSC 191; Garnett v Bradley (1878) 3 App. Cas. 944; Hill v Haire [1899] 1 IR 87; Permanent Trustee Co. (Canberra) Ltd v Finlayson (1968) 122 CLR 338; R v D’Oyly (1840) 12 Ad & E 139; Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125, considered.
In the Estate of NICHOLLS (DECEASED)
[2012] SASC 53Testamentary Causes Jurisdiction
STANLEY J:
Introduction
This is an application for directions made by the Registrar of Probates pursuant to s 8 of the Administration and Probate Act 1919 (SA) (“the Act”). Section 8 provides:
8—Registrar to obtain direction of Judge in doubtful case
In any case where it appears to the Registrar doubtful whether probate or administration should be granted, or whether he should exercise any power or discretion appertaining to his office, he shall obtain the direction of a Judge, and act accordingly, and the Registrar shall be subject in all cases to the control and orders of the Court.
The Registrar seeks a direction as to whether to re-seal a grant of probate made by the Supreme Court of New South Wales.
This involves two questions. First, whether NSW Trustee and Guardian (“NSW Trustee”) is a “Trust corporation” for the purposes of r 50 of the Probate Rules 2004 (SA) (“Probate Rules”). Second, whether the applicant for re‑sealing, Mr Peter Howard, the Assistant Director of NSW Trustee and Guardian, has the necessary authority to make the application on behalf of the NSW Trustee.
In order to understand the significance of these questions it is necessary to set out certain matters by way of background.
Background
Horace William Nicholls deceased (“the deceased”) died in South Australia on 23 April 2011. The deceased died leaving a last will made on 14 January 2009 (“the will”). The will was apparently made in New South Wales.
The will, by clause 2, appointed “the Public Trustee of New South Wales” as the executor and trustee of the will.
Following the making of the will, but before the death of the deceased, there was a statutory reorganisation of the Public Trustee of New South Wales by virtue of the NSW Trustee and Guardian Act 2009 (“NSW Trustee Act”).[1] The office of the Public Trustee, and the corporations sole constituted under s 7 of the Public Trustee Act 1995 (SA) (“Public Trustee Act”) were dissolved and in its place was created a corporation with the corporate name of the NSW Trustee and Guardian.[2] The NSW Trustee Act provided that NSW Trustee was to be taken, for all purposes, including the rules of private international law, to be a continuation of and the same legal entity as “the former corporations” which term included the Public Trustee.[3]
[1] Act No. 49 of 2009 of the Parliament of New South Wales. The NSW Trustee Act commenced on 1 July 2009.
[2] Section 5 NSW Trustee Act. The NSW Trustee Act also refers to this corporation as “NSW Trustee”: see s 3(1).
[3] See clause 11 of Schedule 1 of the NSW Trustee Act and the definition of “Public Trustee” in clause 2 of Schedule 1 to the NSW Trustee Act.
Consequently on the death of the deceased a grant of probate of the will was obtained in the Supreme Court of New South Wales by NSW Trustee on 6 July 2011.
The deceased died leaving personal estate in both New South Wales and South Australia and real estate in South Australia.
The personal estate in South Australia consisted of a motor vehicle and the real estate comprises a property of which the deceased was the registered proprietor situate at 8 Randolph Street, Thebarton.
NSW Trustee is the applicant in this matter.
In order to realise the real estate of the deceased in South Australia and to deal with that property in accordance with the will, it is necessary for NSW Trustee first to obtain from the court a re-seal of the grant of probate made by the Supreme Court of New South Wales.
This is provided for by s 17 of the Act which provides:
17—Probate and administration granted in other States or the United Kingdom or by foreign Court to be of like force as if granted in South Australia, on being re-sealed
When any probate or administration granted by any Court of competent jurisdiction in any of the Australasian States or in the United Kingdom, or any probate or administration granted by a foreign court, is produced to and a copy thereof deposited with the Registrar, such probate or administration may be sealed with the seal of the Supreme Court, and thereupon shall have the like force and effect and the same operation in this State, and every executor and administrator thereunder shall, subject to subsection (4) of section 65 of this Act, have the same rights and powers, perform the same duties, and be subject to the same liabilities, as if such probate or administration had been originally granted by the Supreme Court.
The purpose of s 17 is to enable the Registrar to re-seal a probate or administration granted by any court of competent jurisdiction.[4]
[4] In the Estate of Horvath (Deceased) (2007) 249 LSJS 91 at [9].
The procedure relating to the re-sealing of grants made outside South Australia under s 17 of the Act is regulated by r 50 of the Probate Rules.
Rule 50.01 sets out the categories of persons who may make application under s 17 of the Act. Rule 50.01 provides:
Application for the re-sealing of a grant under section 17 of the Act may be made either in person or through a practitioner -
(a)by the executor or administrator, or by one of the executors or administrators with the consent by affidavit of the co-executors or co-administrators to whom the grant was made, or
(b)by the attorney (lawfully authorised for that purpose) of such executor, or administrator, or
(c)by a practitioner authorised in writing to apply on behalf of the executor or administrator,
or, in the case of a trust corporation being the executor, administrator, or attorney -
(d)by an officer of such corporation who must depose in the oath to his or her authority to make the application and such officer must lodge with the application a certified copy of the resolution of the board of directors of such corporation authorising such officer to make the application for the re-sealing of the grant:
Provided that it shall not be necessary to lodge a certified copy of the resolution if the officer through whom the application is made is included in a list of persons authorised to make such applications filed in the Registry by the trust corporation
Rule 3.01 defines a “Trust corporation” to mean “a body corporate authorised by the Trustee Companies Act 1988 (SA) (“Trustee Companies Act”) or other special Act to administer the estates of deceased persons”, unless a contrary intention appears or the context otherwise requires.
Rule 50.02 provides:
An application under Rule 50.01 must be accompanied by an oath of the applicant or officer of the company, as the case may be, in the Form No. 64 or as nearly in such form as the circumstances of the case allow.
In accordance with r 50.01(d) NSW Trustee made application for the re‑sealing of a grant of probate by an officer of NSW Trustee, who deposed to his authority to make the application for and on behalf of NSW Trustee and lodged with the application a delegation by the Chief Executive Officer of NSW Trustee of her power to make application for a re-seal of a grant of probate to that officer, Mr Howard. Mr Howard made the application on behalf of NSW Trustee through its solicitors in South Australia by Form 64. As NSW Trustee does not have a board of directors, the obligation in r 50.01(d) to lodge a certified copy of the resolution of the board authorising its officer to make the application does not apply.
As I have indicated, the application for directions by the Registrar of Probates gives rise to two questions. The answers to those questions are matters of statutory construction. The first question is whether the NSW Trustee is a “Trust corporation” within the meaning of the definition in r 3.01 of the Probate Rules. The second question is whether the delegation by the CEO of NSW Trustee to Mr Howard for the purposes of applying for the re-seal is effective. This turns on the interpretation of the NSW Trustee Act.
In this matter, I have been ably assisted by submissions from Mr Edmonds-Wilson, counsel for the NSW Trustee.
Re-sealing a grant of probate pursuant to s 17 of the Administration and Probate Act 1919 (SA)
Section 17 of the Act provides for the re-sealing of a grant of probate or letters of administration by the court where the grant or letters have been granted by any court of competent jurisdiction in another State, the UK or a foreign court.
The purposes of s 17 include, as a matter of comity between jurisdictions, that the grant of probate or administration is to be re-sealed by the Registrar of Probates in a timely manner without undue expense to the estate.[5]
[5] In the Estate of Horvath (Deceased) (2007) 249 LSJS 91 at [12].
The requirement for re-sealing arises from the limited territorial effect of a grant of probate.[6] The jurisdiction to make a grant of probate or administration in South Australia is limited to cases where the deceased left real or personal property within the jurisdiction.[7]
[6] Permanent Trustee Co. (Canberra) Ltd v Finlayson (1968) 122 CLR 338.
[7] Section 5 of the Act.
In Catto v Hampton Australia Ltd (In Liq) (No 3),[8] Vanstone J said:[9]
A grant of representation in a deceased estate, whether of probate or letters of administration, authorises the legal personal representative to deal with that part of the deceased's estate situated within the jurisdiction of the court making the grant. In all States of Australia except South Australia that is so by virtue of legislative provision, but in South Australia it is a matter of common law and of implication drawn from the Administration and Probate Act 1919 (SA), particularly ss 5 and 46.
But a grant of probate in one State does not afford to the legal personal representative any right to represent the estate in proceedings elsewhere. Nor, for that matter, does it give a foreign court jurisdiction to entertain an action against that representative: Commissioner of Succession Duty v Hargrave (1972) 3 SASR 118. However, in all the States there is power to recognise grants of probate in certain other jurisdictions. In South Australia the relevant provision is s 17 of the Administration and Probate Act …
[8] (2004) 89 SASR 234.
[9] (2004) 89 SASR 234 at [134]-[135].
Gray J observed in In the Estate of Rogowski (Deceased) that:[10]
Re-sealing is necessary among Australian States and the Australian Capital Territory. They are treated as separate countries in private international law and “are to be so regarded in relation to one another”. Furthermore section 118 of the Constitution dealing with the giving of full faith and credit throughout Australia to the laws, public Acts, records, and judicial proceedings of every State does not allow a grant of probate or administration made in one jurisdiction to be effective in another.
(Footnotes omitted)
[10] (2007) 248 LSJS 274 at [14].
Debelle J described the operations of s 17 in In the Estate of Horvath (Deceased)[11] as follows:[12]
Section 17 is expressed in wide terms. It operates “when any probate or administration granted by any court of competent jurisdiction” is produced to and a copy deposited with the Registrar. The use of the word “any” in the expression “any probate or administration” signifies that s 17 is expressed to operate as widely as possible. The word “any” is a word which ordinarily excludes limitation or qualification and should be given as wide a construction as possible: Victorian Chamber of Manufactures v The Commonwealth (1943) 67 CLR 335 at 346 and at 340, 344. Depending on its context, the word “any” has such a wide import that it is capable of meaning “all”: Isle of Wight Railway Co v Tahourdin (1883) 25 Ch D 320 at 332. It is, therefore, intended to apply to any kind of probate or administration in whatever form granted by a court of competent jurisdiction.
[11] (2007) 249 LSJS 91.
[12] (2007) 249 LSJS 91 at [10].
Is NSW Trustee a “Trust corporation” for the purposes of r 50.01?
Rule 50.01 prescribes the persons, both natural and artificial, who may apply for the re-sealing of a grant under s 17. Applications may be made in person or through a practitioner by the executor or administrator, the attorney of such executor or administrator, or by a practitioner authorised in writing to apply on behalf of the executor or administrator or, in the case of a trust corporation being the executor, administrator or attorney, by an officer of such trust corporation. “Trust corporation” is defined in r 3.01. It provides that in the Probate Rules, unless a contrary intention appears or the context otherwise requires, “Trust corporation” means a body corporate authorised by the Trustee Companies Act or other special Act to administer the estates of deceased persons.
Is NSW Trustee a body corporate authorised by the Trustee Companies Act to administer the estate of deceased persons?
Section 4 of the Trustee Companies Act authorises a “trustee company” to act as the executor or administrator of the estate of a deceased person. Section 3(1) of the Trustee Companies Act defines a “trustee company” to mean a licensed trustee company within the meaning of Chapter 5D of the Commonwealth Act. The same section defines “the Commonwealth Act” to mean the Corporations Act 2001 (Cth) (“the Corporations Act”).
Chapter 5D was inserted into the Corporations Act with effect from 6 May 2010 pursuant to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (Cth).[13] Within Chapter 5D, s 601RAA defines a “licensed trustee company” to mean a trustee company that holds an Australian financial services license covering the provision of one or more traditional trustee company services. Section 601RAB(1) defines a “trustee company”. Relevantly it is defined as a constitutional corporation that “is prescribed by the Regulations as a trustee company for the purpose of this Act”. Regulation 5D.1.01 of the Corporations Regulations 2001 (Cth) (“Corporations Regulations”) provides that for paragraph 601RAB(1)(b) of the Corporations Act a company that is listed in Schedule 8AA is prescribed as a trustee company for the purposes of the Corporations Act. Schedule 8AA of the Corporations Regulations does not list NSW Trustee as a trustee company.
[13] Schedule 2.
Accordingly, NSW Trustee is not “a body corporate authorised by the Trustee Companies Act … to administer the estates of deceased persons”.
The same conclusion is reached if the position is considered by reference to the terms of the Trustee Companies Act as it stood at the time the Probate Rules were made.
At that time s 3(1) of the Trustee Companies Act defined a “trustee company” by reference to a list of companies contained in Schedule 1 to the Act. That list did not include NSW Trustee or the New South Wales Public Trustee.
Accordingly, whether NSW Trustee is a “Trust corporation” within the meaning of r 3.01 of the Probate Rules depends upon whether NSW Trustee is to be regarded as a body corporate authorised by a special Act to administer the estates of deceased persons or whether, in the context of r 50.01, the meaning to be attributed to the expression “Trust corporation” in that rule should yield to some contrary intention or some other meaning that the context otherwise requires in reliance upon the introductory words of r 3.01.
Can the NSW Trustee Act be another special Act to administer the estates of deceased persons within the meaning of r 3.01 of the Probate Rules?
The issue incorporates an interesting question of interpretation. Is the expression “special Act” in the definition of “Trust corporation” to be construed as including an Act of a Parliament other than the South Australian Parliament?
Ordinarily, an Act of the Parliament of New South Wales would not be a special Act in the context of legislation in the South Australian Parliament.
This is because s 4(1) of the Acts Interpretation Act 1915 (SA) (“Acts Interpretation Act”) provides that in that Act and every other Act or statutory instrument, unless the contrary intention appears, “Act” means an Act of the South Australian Parliament or an Act of the Imperial Parliament. The Acts Interpretation Act contains no definition of “special Act”. Rule 3.04 of the Probate Rules provides that the Acts Interpretation Act shall apply to the construction of the Rules as if the Rules had been enacted by Parliament.
Accordingly, unless the contrary intention appears or the context otherwise requires, by the use of the term “special Act” in the definition of Trust corporation in r 3.01, the “Act” referred to therein would be limited to either an Act of the Parliament of South Australia or an Imperial Act. This obviously would exclude from the meaning of the expression as defined, an Act of the Parliament of New South Wales.
In my view, the purpose, subject matter and context, requires that the term “special Act” in the definition of “Trust corporation” in r 3.01 would include an Act of the Parliament of New South Wales.
Considered in its context r 50 is facultative. It exists to provide a mechanism by which grants of probate or administration may be re-sealed in South Australia pursuant to s 17 of the Act. The rule is to be construed in that context. As Debelle J emphasised in In the Estate of Horvath (Deceased)[14] s 17 is expressed to operate as widely as possible. Rule 50 and the definition of “Trust corporation” in r 3.01 should be construed accordingly.
[14] (2007) 249 LSJS 91 at [10].
A wide construction is consistent with the purpose and subject matter of the rule.
At the time the Probate Rules were made in 2004, the Trustee Companies Act applied only to a “trustee company” as defined therein, being those 10 companies listed in Schedule 1 of the Trustee Companies Act. They were the 10 companies which then carried on business in South Australia as public trustee companies. They did not include each of the 28 companies now listed in Schedule 8AA of the Corporations Regulations. They did not include the Public Trustee of South Australia. They also did not include the incorporated public trustees of other states and territories.[15]
[15] Regulation 5D.1.01 of the Corporations Regulations provides that a trustee company for the purposes of the Corporations Act is any company listed in Sch 8AA but the Public Trustee of a State may only be listed in the Schedule upon the request of the State. No State has done so.
It follows that at the time the Probate Rules were made, there would have been a number of bodies corporate authorised by legislation of other states and territories to administer the estates of deceased persons in places outside South Australia, which were not then authorised to do so by the Trustee Companies Act.
In my view, the term “special Act” was adopted in the definition of “Trust corporation” in r 3.01 to provide for these cases. Accordingly, not only was there no intent to limit the term territorially to Acts of the Parliament of South Australia, but the necessary and efficacious operation of the Act depends on a contrary construction being afforded the expression so that it would apply to any special Act of competent jurisdiction, so that r 50 would be consonant with s 17. To do otherwise would defeat the purpose of the legislation.
Necessarily, some applications for re-seal of grants made outside South Australia, where the holder of the grant is a corporation, will involve corporations not authorised under the Trustee Companies Act but authorised by an Act of Parliament of another competent jurisdiction.
After all, the very purpose of s 17 is to enable the Registrar to re-seal a probate or administration granted by a court of competent jurisdiction other than this court. This consideration favours construing the term “special Act” as applying not only to a special Act of the Parliament of South Australia, but also to any special Act of any legislature of a competent jurisdiction to which s 17 applies.
Is the NSW Trustee Act a special Act of the Parliament of New South Wales within the meaning of r 3.01?
A special Act of Parliament is one that is “directed towards a special object, or special class of objects”.[16] It is the antithesis of a general or public Act of Parliament.[17]
The rule that a special Act is not repealed by a subsequent general Act, unless an intention to repeal is expressed or necessarily implied, is laid down in numerous cases, of which Hawkins v Gathercole, Thorpe v Adams and Fitzgerald v Champneys are good examples.[18]
[Footnotes omitted]
[16] Garnett v Bradley (1878) 3 App. Cas. 944 at 950.
[17] R v D’Oyly (1840) 12 Ad & E 139; Baird v Tunbridge Wells [1894] 2 QB 867; Hill v Haire [1899] 1 IR 87.
[18] Baird v Tunbridge Wells [1894] 2 QB 867 per Smith LJ at 880.
As Pearce & Geddes note in Statutory Interpretation in Australia[19] the classification of Acts as general or special Acts is largely of historical interest.
[19] Pearce & Geddes, Statutory Interpretation in Australia (7th ed, Lexis Nexis, Australia, 2011) at [1.19] - [1.20].
As long ago as 1893 in R v London County Council[20] Bowen LJ noted:[21]
There was a time when public and general Acts were distinguished from private and special; but that is not the division which has obtained in later times, and the more modern division has been between general Acts and local and personal; for it is to be observed … that “general”, and not “public”, is opposed to “local and personal”; and the division, therefore, lies between public and general Acts on the one side, and public local and personal Acts on the other; because, of course, a local and personal Act may be public without losing its character of local and personal.
[20] [1893] 2 QB 454.
[21] [1893] 2 QB 454 at 462.
His Lordship went on to observe that a general Act is an Act which applies to the whole community. It means an Act of Parliament which is unlimited both in its area and, as regards the individual, in its effects.
Pearce & Geddes discuss the effect of a private Act of Parliament in a way which equates a private Act with a special Act. They consider that it is an Act that is concerned only with a club, a company, an organisation and so on. Its scope does not extend to the public at large, although particular members of the public may be affected in some way by the Act. For example, the control of church property may be governed by a private Act establishing a trust and directing the trustees how to manage the property. Members of the particular church are affected in one aspect of their lives by such an Act. However, its scope is limited and it does not deal with a topic in which all members of the public have an interest. Sometimes private Acts deal with an estate or a trust, or with a utility such as cattle saleyards, railways or gasworks.[22]
[22] Pearce & Geddes, Statutory Interpretation in Australia (7th ed, Lexis Nexis, Australia, 2011) at [1.19].
In South Australia, examples of special Acts can be found in Schedule 2 to the Trustee Companies Act, as it stood at the time of its enactment in 1988, pursuant to which specified Acts were repealed by the enactment of the Trustee Companies Act.[23]
[23] Those Acts included ANZ Executives and Trustee Company (South Australia) Limited Act 1985; Bagot’s Executor Company Act 1910; Elder’s Executor Company’s Act 1910; Executors Company’s Act 1885; and Farmers’ Co-operative Executors Act 1919.
It is important to recognise, however, that the context of the expression “special Act” in r 3.01 is not to be construed in isolation. The expression which falls for consideration is “other special Acts to administer the estates of deceased persons”. The reference to “other special Act” necessarily implies that for the purposes of the definition of “Trust corporation” in r 3.01, the Trustee Companies Act is a “special Act to administer the estates of deceased persons”. That understanding, in my view, informs the meaning of the expression when applied to the NSW Trustee Act.
Pursuant to s 5 of the NSW Trustee Act the NSW Trustee is constituted as a corporation with the corporate name of NSW Trustee.[24] The NSW Trustee is not a natural person nor is it conferred with the powers of a natural person. The NSW Trustee is not an employee in the public service of the State of New South Wales. The NSW Trustee is a NSW Government agency.[25] The NSW Trustee acts through its Chief Executive Officer or delegate.[26] The NSW Trustee has such functions as are conferred or imposed on it under the NSW Trustee Act or any other Act.[27] The NSW Trustee may be appointed to and act, inter alia, as a trustee, executor or administrator and is appointed to act in a trust or protective capacity and has the same liabilities and is entitled to the same rights and immunities and is subject to the same control and orders of any court as a private person acting in the same capacity.
[24] NSW Trustee Act s 5.
[25] NSW Trustee Act s 6.
[26] NSW Trustee Act ss 7 and 9.
[27] NSW Trustee Act s 10.
This contrasts with the position of the Public Trustee in South Australia. The Public Trustee is an employee in the public service and has the powers of a natural person.[28]
[28] Public Trustee Act 1985 (SA) ss 4 and 5.
On the same basis that I consider the term “special Act” should be construed to include an Act of the Parliament of New South Wales, I consider the NSW Trustee to be a body corporate authorised by another special Act to administer the estates of deceased persons within the meaning of the definition of “Trust corporation” in r 3.01. To construe the rules otherwise would be to defeat the purpose of the rules which are to be construed consistently with the purpose and subject matter of s 17 of the Act. While, in one sense, the Court would shrink from characterising the NSW Trustee Act as a special Act as this expression has been understood historically, nevertheless I consider that it is a special Act to administer the estates of deceased persons. It is in a similar genus to the Trustee Companies Act. If the Trustee Companies Act is a special Act to administer the estates of deceased persons, so too is the NSW Trustees Act.
I am reinforced in this conclusion by consideration of In the Estate of Horvath (deceased)[29] where Debelle J treated the Public Trustee of New Zealand, the office equivalent to the Public Trustee in South Australia, as a “Trust corporation” within the meaning of r 50.[30]
[29] (2007) 249 LSJS 91.
[30] (2007) 249 LSJS 91 at [17].
Accordingly, I consider NSW Trustee is a “Trust corporation” for the purposes of r 50.01.
Is the delegation by the CEO of NSW Trustee to Mr Howath for the purposes of applying for the re-seal effective?
By certificate under seal dated 6 September 2011 the Chief Executive Officer of NSW Trustee, Imelda Dodds, gave the following delegation:
I, Imelda Dodds, Chief Executive Officer of NSW Trustee and Guardian pursuant to Section 9 of the NSW Trustee and Guardian Act 2009 (“the Act”) delegate my power to make application for a grant of probate or administration or the re-sealing of a grant of probate or administration in the Supreme Court of South Australia and to sign, swear or affirm all supporting Affidavits thereto in the name of or on behalf of NSW Trustee and Guardian to Peter Howard, Assistant Director an authorised person within the meaning of Section 9(4) of the Act.
The Registrar’s application for directions is motivated by a doubt he felt that the Chief Executive Officer of NSW Trustee, as opposed by the NSW Trustee itself, could delegate the relevant power to Mr Howard.
The delegation was given purportedly pursuant to the NSW Trustee Act.
The NSW Trustee Act provides that:
5Constitution of NSW Trustee and Guardian
There is constituted by this Act a corporation with the corporate name of the NSW Trustee and Guardian.
Note. In this Act, the NSW Trustee and Guardian is referred to as the NSW Trustee (see section 3 (1)).
6Status of NSW Trustee
The NSW Trustee is a NSW Government agency.
7Chief Executive Officer
(1) The Governor may appoint a Chief Executive Officer of the NSW Trustee.
(2) The Chief Executive Officer may be appointed for a term not exceeding 5 years but is eligible for re-appointment.
(3) The employment of the Chief Executive Officer is subject to Part 3.1 of the Public Sector Employment and Management Act 2002, but is not subject to Chapter 2 of that Act.
(4) The Governor may remove the Chief Executive Officer from office only for misbehaviour, incapacity or incompetence, despite anything to the contrary in section 77 of the Public Sector Employment and Management Act 2002.
(5) The Chief Executive Officer is responsible for the day-to-day management of the affairs of the NSW Trustee.
(6) Any act, matter or thing done in the name of, or on behalf of, the NSW Trustee by the Chief Executive Officer is taken to have been done by the NSW Trustee.
8Acting Chief Executive Officer
(1) The Minister may, from time to time, appoint a person to act in the office of the Chief Executive Officer during the illness or absence of the Chief Executive Officer (or during a vacancy in the office of Chief Executive Officer) and a person, while so acting, has all the functions of the Chief Executive Officer.
(2) The Minister may, at any time, remove a person from the office of acting Chief Executive Officer.
(3) The acting Chief Executive Officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
9Delegation
(1) The NSW Trustee may delegate to an authorised person any of its functions, other than this power of delegation.
(2) The Chief Executive Officer may delegate to an authorised person any of the Chief Executive Officer’s functions, other than this power of delegation.
(3) A delegate may sub-delegate to an authorised person any function delegated by the NSW Trustee or Chief Executive Officer if the delegate is authorised in writing to do so by the NSW Trustee or Chief Executive Officer.
(4) In this section, authorised person means:
(a)a member of staff of the Division of the Government Service comprising the group of staff who are employed under Chapter 1A of the Public Sector Employment and Management Act 2002 to enable the NSW Trustee to exercise its functions, or
(b)a person, or committee of persons, of a class approved by the Minister or prescribed by the regulations.
10Functions generally
(1) The NSW Trustee has such functions as are conferred or imposed on it by or under this or any other Act.
(2) The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions.
(3) However, the NSW Trustee cannot employ any staff.
Note. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the NSW Trustee to exercise its functions.
11General trustee and other functions
(1) The NSW Trustee may be appointed to and act in any of the following capacities:
(a)trustee,
(b)executor or administrator,
(c)collector of estates under an order to collect,
(d)agent or attorney,
(e)guardian or receiver of the estate of a minor,
(f)receiver of any other property.
(2) The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person.
(3) The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration.
(4) The NSW Trustee, if appointed to act in a trust or protective capacity:
(a)has the same liabilities, and
(b)is entitled to the same rights and immunities, and
(c)is subject to the same control and orders of any court,
as a private person acting in the same capacity.
16Powers of NSW Trustee relating to property and other matters
(1) …
(s) bring and defend actions, suits and other proceedings,
…
(y) do or omit all things, and execute all documents, necessary to carry into effect the functions of the NSW Trustee.
…
22Grant of probate or administration to NSW Trustee
(1) The Supreme Court may grant:
(a)probate of a will, or
(b)administration of any estate (whether for general, limited or special purposes), to the NSW Trustee.
(2)This section does not limit the generality of the powers or other functions of the Supreme Court or the NSW Trustee.
Note:Under section 61 of the Probate and Administration Act 1898, a deceased person’s estate vests in the NSW Trustee until probate, administration or an order to collect is granted.
From these provisions it can be seen that:-
1.NSW Trustee is a corporation.
2.NSW Trustee is taken to be “a continuation of and the same legal entity” as the former Public Trustee which was a corporation sole.
3.NSW Trustee is to be regarded as continuing to be a corporation sole. It does not have directors.
4.The only officer of NSW Trustee is its Chief Executive Officer.[31] It cannot employ staff.
5.NSW Trustee has such functions as are conferred or imposed on it by the NSW Trustee Act or any other Act. The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions. This includes a power, authority or duty.[32]
6.NSW Trustee may be appointed to and act in a number of capacities including, inter alia, as a trustee, executor or administrator. When it acts in those capacities it is deemed to be acting in a trust capacity for the purposes of the NSW Trustee Act.[33]
7.NSW Trustee may exercise certain “functions when acting in a trust capacity”, which are prescribed by s 16(1) of the NSW Trustee Act. Amongst those functions are the power to bring and defend actions, suits and other proceedings and the power to do or omit all things, and execute all documents, necessary to carry into effect the functions of the NSW Trustee.
8.The NSW Trustee Act does not specify any particular manner in which NSW Trustee is to do those things and execute those documents which are necessary to carry into effect its functions.
9.NSW Trustee has the function of administering the estate of a deceased person in accordance with the grant of probate to NSW Trustee by the Supreme Court of New South Wales.[34]
[31] Or any person acting in that office temporarily.
[32] Section 3(1) defines “function” to include a power, authority or duty.
[33] “Trust capacity” is defined in s 3(1) of the NSW Trustee Act to mean any of the capacities specified in s 11(1).
[34] This follows from the effect of ss 10, 11 and 22 of the NSW Trustee Act.
It is against this statutory background that the issue of the efficacy of the delegation by the CEO to Mr Howard falls to be considered.
In acting as executor and trustee of the deceased’s estate, in accordance with the grant of probate made by the NSW Supreme Court on 6 July 2011, the NSW Trustee is acting in a “trust capacity” for the purposes of the NSW Trustee Act.
Accordingly, the NSW Trustee is obliged to realise the assets of the estate of the deceased and distribute them in accordance with the provisions of his will. To that end, the NSW Trustee must obtain a re-seal of the grant of probate in South Australia in order to realise the real property of the deceased situate in South Australia. Re-sealing the NSW grant in South Australia under s 17 of the Act and doing the things necessary to achieve this are acts within the powers of the NSW Trustee prescribed pursuant to s 10(2) of the NSW Trustee Act. They are supplemental, incidental or consequential acts as are necessary or expedient for the exercise of the NSW Trustee’s functions.
NSW Trustee is a corporation. It cannot perform any acts except through its officers. The only officer of NSW Trustee under the NSW Trustee Act is the CEO.[35]
[35] Subject to the appointment of an acting Chief Executive Officer pursuant to s 8 of the NSW Trustee Act.
This statutory provision must be understood in the context where s 7(5) provides that the CEO is responsible for the day-to-day management of the affairs of the NSW Trustee.
There are only two ways in which NSW Trustee can perform its functions. First, it can act through the CEO.[36] Second, it can act through a delegate. The NSW Trustee can delegate to an authorised person any of its functions pursuant to s 9(1), or the CEO may delegate to an authorised person any of the Chief Executive Officer’s functions pursuant to s 9(2).
[36] Or the acting CEO: see s 8 of the NSW Trustee Act.
Section 7(6) is important to the operation of the NSW Trustee Act. It deems the acts, matters or things done in the name of, or on behalf of, the NSW Trustee by the CEO to have been done by the NSW Trustee.
In my view, it is clear that the deeming of acts done by the CEO, in the name of or on behalf of the NSW Trustee, as having been done by NSW Trustee, carries the implication that there is vested in the CEO the power to do those acts, matters or things necessary to the function of the NSW Trustee, pursuant to the NSW Trustee Act.
It is a well-established principle of statutory interpretation that where a power is conferred upon a body by an Act of Parliament, there is implied, as a concomitant of that power, the power necessary for its performance or execution. The principle finds expression in the maxim ubi aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potest.[37]
[37] ReSterling; Ex parte Esanda Ltd (1980) 44 FLR 125 per Lockhart J at 130.
In Minister for Immigration and Ethnic Affairs v Mayer,[38] Mason, Deane and Dawson JJ said:[39]
A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists.
[38] (1985) 157 CLR 290.
[39] (1985) 157 CLR 290 at 302-303.
Necessity would appear to be the basis for the implication.[40]
[40] Freisleben v Nisselle [1999] VSC 191 at [30].
The Parliament of New South Wales has conferred upon NSW Trustee certain functions. The distinction between functions and powers is elusive, if not illusory.[41] Nonetheless, I am satisfied that there is to be implied into the NSW Trustee Act a power conferred upon the CEO to do all things necessary in the performance of the functions of the NSW Trustee. Absent such an implication it is difficult to see how the NSW Trustee Act could operate effectively.
[41] See the discussion by Clarke and Handley JJA in Burns Philp & Co Ltd v Murphy (1983) 29 NSWLR 723 at 730.
This proposition can be illustrated simply by reference to s 9(1) of the NSW Trustee Act, which empowers the NSW Trustee to delegate to an authorised person any of its functions, other than the power of delegation. As the NSW Trustee is a corporation and not a natural person, it can only act through its officers. As explained above, the NSW Trustee cannot employ any staff. Its only officer is its Chief Executive Officer, or any person appointed to act in that office. Accordingly, the only means by which the NSW Trustee could delegate to an authorised person any of its functions is through the act of the CEO.
The implication is strongly supported by the terms of s 7(5) and s 7(6).
This analysis leads to the conclusion that the Chief Executive Officers does have power to make application for re-sealing of a grant of probate in this Court in the name of and on behalf of NSW Trustee. Furthermore, it is a function of the NSW Trustee to make application for the re-sealing of a grant of probate in a foreign court in appropriate circumstances. This conclusion is supported by the provisions of s 10(2) as an application for re-sealing of a grant of probate in a foreign court is a supplemental, incidental or consequential act necessary or expedient in the exercise of the function of the NSW Trustee to act as the executor of an estate in respect of which the Supreme Court of New South Wales has granted to the NSW Trustee probate of a will or administration of any estate.
Accordingly, the CEO may delegate to an “authorised person” that function.
In this matter, the CEO has, by her delegation, delegated to Mr Howard that power to make application for a grant of probate or administration or the re-sealing of a grant of probate or administration in this Court and the power to sign, swear or affirm all supporting affidavits thereto in the name of or on behalf of the NSW Trustee.
For these reasons, I consider the delegation made by the CEO under seal, dated 6 September 2011, is effective.
Conclusion
I would direct the Registrar to re-seal the grant of probate made by the Supreme Court of New South Wales in this matter on 6 July 2011.
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