Jones v Toomer

[2021] WASC 207

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JONES -v- TOOMER [2021] WASC 207

CORAM:   ACTING MASTER STRK

HEARD:   24 JUNE 2021

DELIVERED          :   24 JUNE 2021

PUBLISHED           :   25 JUNE 2021

FILE NO/S:   CIV 2038 of 2020

MATTER:   The will and estate of MARY CUNNINGHAM-REID (Dec)

BETWEEN:   TODD JONES

First Plaintiff

SUSANNA JONES

Second Plaintiff

AND

GREGORY TOOMER

First Defendant

TERRENCE TOOMER

Second Defendant

ROBERT TOOMER

Third Defendant

FREDA HAWKES

Fourth Defendant

ROSALINE CLISSOLD

Fifth Defendant

PAMELA ELLIS

Sixth Defendant

PATRICIA MALLARD

Seventh Defendant

PAMELA PARNELL

Eighth Defendant

VERA DOLIER

Ninth Defendant

DOREEN CLEARY

Tenth Defendant

JEAN HAY

Eleventh Defendant

Catchwords:

Probate - Application for the appointment of administrators pendente lite - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Interim administrators appointed

Category:    B

Representation:

Counsel:

First Plaintiff	:	B Campbell
Second Plaintiff	:	B Campbell
First Defendant	:	No appearance
Second Defendant	:	T Saggers
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
First Defendant	:	No appearance
Second Defendant	:	Gregson & Associates
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance

Case(s) referred to in decision(s):

Fazio v Naso [2016] WASC 385

Goodsall v Keen [2006] NSWSC 1143

Vallelonga v Sorgiovanni [2017] WASC 323

ACTING MASTER STRK:

1. On 24 June 2021, I heard an application made on behalf of the first and second plaintiffs seeking an order appointing them as the joint administrators of the estate of the late Mary Cunningham‑Reid pursuant to the Administration Act 1903 (WA) s 35. The appointment is intended to be an interim one, pending the determination of this proceeding. By a chambers summons filed on 14 June 2021, the first and second plaintiffs pressed for orders in the following terms.

   1.Upon the plaintiffs' undertaking not to use the estate assets to fund the current action (save for this application) the first and second plaintiffs be appointed as joint administrators pendent lite of the estate of the deceased, Mary Cunningham‑Reid pursuant to s 35 of the Administration Act pending final disposition of this proceeding.

   2.The said administrators have full power to administer the deceased's estate for the term of their appointment.

   3.The costs of this application be paid out of the estate.

2. At the conclusion of the hearing I indicated that for reasons that I would publish I would grant the application, albeit prescribing the powers of the joint administrators and fixing the costs of the application to be paid out of the estate.  Set out below are my reasons.

Procedural history and background

1. By writ of summons filed on 15 October 2020, the first and second plaintiffs applied for, among other things, an order that the court pronounce in solemn form the force and validity of a will executed by the deceased on 22 January 2010, and for a direction that the Probate Registrar issue a grant of probate in solemn form in favour of the first and second plaintiffs.

2. Under the terms of the 2010 will, the deceased purported to give the whole of her estate to Vivian Thomas Jones if he survived her by 28 days, otherwise to the first and second plaintiffs equally as joint tenants.  Vivian Thomas Jones predeceased the deceased.  Under the terms of the 2010 will, the plaintiffs would be appointed as executors, as Mr Jones (the institute executor) predeceased the deceased.

3. If the deceased died intestate, the persons entitled to distribution of the estate are the deceased's maternal aunt, and the deceased's two maternal and eight paternal cousins.  All eleven have been joined as defendants to this proceeding.  All reside in the United Kingdom.  Certificates of service for all but the eighth and ninth defendants have now been filed in this proceeding pursuant to the Rules of the Supreme Court 1971 (WA) O 11A r 6. To date, only the second defendant, Terrence Toomer who is a paternal cousin of the deceased, has filed an appearance. The second defendant is represented.

4. On 13 April 2021, a statement of defence was filed on behalf of the second defendant.  By the consent of the first and second plaintiffs and the second defendant, on 9 June 2021 mediation orders were made.  The mediation is yet to be listed.

5. By an ex parte application filed on 14 June 2021, the first and second plaintiffs seek an order appointing them as the joint administrators of the deceased's estate pursuant to the Administration Act s 35. The application is supported by the affidavit of Blair Daniel Campbell, solicitor for the first and second plaintiffs, sworn on 14 June 2021, together with a supplementary affidavit of Mr Campbell sworn on 23 June 2021.

The evidentiary foundation

1. The following matters are deposed to by Mr Campbell.

2. Mary Cunningham‑Reid died on 25 July 2018, leaving real and personal estate within Western Australia.  No formal representative has been appointed to administer the estate.  To date, the first and second plaintiffs have cared for the estate assets using their own funds.

3. The estimated total value of the deceased's estate is approximately $400,000.

4. The first and second plaintiffs are concerned to bring in and to conserve the estate of the deceased which includes:

   (a)real property known as 29 Burnside Way, Waikiki;

   (b)a motor vehicle; and

   (c)multiple bank accounts, credit card and superannuation fund.

5. To date, the plaintiffs have borne all estate costs from their own resources, which include:

   (a)$3,680.68 by way of extra fees for the deceased's prepaid funeral;

   (b)accounting fees;

   (c)in respect of the Waikiki property, utilities; rates; insurance and mail redirect charges; and

   (d)in respect of the motor vehicle, insurance; registration; and maintenance costs.

6. The ongoing payment of fees associated with the estate, together with the payment of their own costs in this proceeding, has become burdensome for the first and second plaintiffs.  The first and second plaintiffs wish to pay the ongoing holding costs for the motor vehicle and the Waikiki property from the bank accounts of the deceased, and to be reimbursed for the estate costs they have borne personally to date.  The first and second plaintiffs reside in Western Australia and are familiar with the estate assets (having managed the estate assets for approximately three years).  All defendants named in the proceeding reside in various locations within the United Kingdom.

The second defendant's position

1. The second defendant has no objection to the first and second plaintiffs being appointed administrators pendente lite of the estate of the deceased, providing that the plaintiffs undertake not to use any estate funds to support their claims in this proceeding.[1]  The attitude of the second defendant to the application was confirmed by counsel for the second defendant at the hearing.

   [1] Affidavit of B D Campbell sworn 14 June 2021 [18], DCD1.

2. Mr Campbell deposes that the plaintiffs have agreed to give the requested undertaking and annexes to his affidavit an email communication from the plaintiffs confirming that they undertake not to use any estate funds for the purpose of this proceeding (other than this application for appointment as administrators pendente lite).  An undertaking signed by the plaintiffs in terms approved of by the second defendant was filed shortly prior to the hearing of the application.

The applicable principles

1. The Administration Act s 35 provides as follows:

   The court may, pending any proceedings touching the validity of any will, or for obtaining, recalling, or revoking any probate or administration, appoint an administrator of the personal estate and the receiver of the real estate of any deceased person, at such remuneration and with such full or limited powers as the court may think fit.

2. As observed by Master Sanderson in Vallelonga v Sorgiovanni [2017] WASC 323 [5], the appointment of an interim administrator in circumstances such as this is referred to as a grant of administration pendente lite - that is, pending suit. Such appointment will only be made if there is sufficient reason to do so.[2]  The learned Master further observed that the appointment of an interim or limited administrator ought be made having regard to whether the appointment is in the interests of justice and in the best interests of all parties connected with the estate.[3]

   [2] Vallelonga v Sorgiovanni [5], Sanderson M citing Goodsall v Keen [2006] NSWSC 1143 (Campbell J).

   [3] Vallelonga v Sorgiovanni [9].

3. If there is sufficient reason to appoint an interim administrator, questions arise as to who should be appointed, and what powers they might have.[4]

   [4] Vallelonga v Sorgiovanni [5].

4. As to who should be appointed, Master Sanderson noted that the authorities suggest that as a general rule, a party to the dispute ought not be appointed as the administrator. In this regard, the learned Master observed as follows:

   In Tomkinson v Hersey (1983) 34 SASR 181 Cox J after reviewing the authorities concluded:

   'It is hardly surprising that the textbooks and the few report decisions on the question I generally opposed to the notion of appointing as an administrator pendente lite someone who is personally and actively involved in the lis itself.  The desirability of having the estate administered by someone who stands quite outside the litigious battle is obvious.  The cases support the Acting Master's conclusion that, as a general rule, a person unconnected with the action is the most suitable person to be appointed as administrator pendente lite (184).'

   That decision was referred to in followed by McMeekin J in Hempsteed v Ward [2013] QSC 348.

5. However, I note that in Fazio v Naso [2016] WASC 385, Master Sanderson did appoint one of the parties to the litigation as an interim administrator. In that matter, the learned Master was satisfied that the appointment of a party to the litigation as interim administrator would not adversely affect the estate.

Disposition

Is there sufficient reason to appoint an interim administrator?

1. I find that the affidavits filed in support of the application disclose a sufficient reason to appoint an interim administrator pending the determination of this proceeding.  Holding costs of the Waikiki property and the vehicle have and will continue to accrue.  While the first and second plaintiffs have borne these holding costs to date, it is not reasonable for them to continue to do so.

Who should be appointed?

1. The estate is a modest one.  The plaintiffs reside in Western Australia.  I accept that the first and second plaintiffs are familiar with the estate.

2. The stance taken by the second defendant, who is represented in the proceeding, weighs in the balance of the appointment of the first and second plaintiffs as interim administrators.  The second defendant does not oppose the appointment in circumstances where the first and second plaintiffs have given an undertaking in terms required by the second defendant.

3. With appropriate limitations of power and the undertaking proffered, I am satisfied that the appointment of the first and second plaintiffs will not adversely affect the estate.

What power should the person appointed have?

1. By the application, the first and second plaintiffs seek that they be given full power to administer the deceased's estate for the term of their appointment.  However, Mr Campbell does not depose to any intention on their part to immediately proceed with the sale of the Waikiki property or other property of the estate.  Instead, Mr Campbell deposes to the first and second plaintiffs being concerned to bring in and conserve the deceased's estate.  In particular, he deposes to the first and second plaintiffs wish to pay the ongoing holding costs for the vehicle and the Waikiki property from the estate bank accounts rather than from their personal funds, and to be reimbursed for estate expenses incurred by them to date.

2. While I find that there is sufficient reason to appoint an interim administrator, and that it is appropriate that the first and second plaintiffs be so appointed, I am not satisfied that it is appropriate to make the second order pressed on behalf of the first and second plaintiffs in the chamber summons.  In all of the circumstances, I find that it is appropriate that the powers of the interim administrators be limited to:

   (a)getting in and dealing with the personal property the effects of the deceased;

   (b)being given access to and the power to operate the deceased's bank accounts and any superannuation funds for the purposes of consolidating such funds and discharging the just debts and liabilities of the estate (which shall include the just debts and liabilities incurred by the first and second plaintiffs on behalf of the estate); and

   (c)for doing such acts as may be necessary for the preservation of the assets and the proceeds of the estate until further order or further representation be granted.

Conclusion and orders

1. At the conclusion of the hearing, I informed the parties that I would grant the application and proposed a form of order.  I also informed the parties that I would fix the costs of the application to be paid by the estate.  The parties were given the opportunity to comment after the conclusion of the hearing as to the appropriate form of orders.

2. For these reasons, I have made orders in the following terms:

   1.Upon the plaintiffs' undertaking not to use estate assets to fund the current action (save for this application which costs are fixed in the amount of $3,597.78), the first and second plaintiffs be appointed as joint administrators pendente lite of the estate of the late Mary Cunningham‑Reid pursuant to the Administration Act 1903 (WA) s 35, pending final disposition of this proceeding.

   2.The joint administrators shall have powers limited to:

   (a)getting in and dealing with the personal property and effects of the deceased;

   (b)being given access to and the power to operate the deceased's bank accounts and any superannuation accounts for the purposes of consolidating such funds and discharging the just debts and liabilities of the estate (which shall include the just debts and liabilities incurred by the first and second plaintiffs on behalf of the estate); and

   (c)for doing such acts as may be necessary for the preservation of the assets and the proceeds of the estate until further order or further representation be granted.

   3.The joint administrators shall upon every 12 month anniversary of their appointment, and within 21 days of the cessation of their appointment, file an inventory of the estate of the deceased, together with their accounts.

   4.The first and second plaintiffs' costs of the application be paid by the estate as a testamentary expense fixed in the amount of $3,597.78.

   5.The second defendant's costs of the application be paid by the estate as a testamentary expense fixed in the sum of $495.00.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CD

Associate to Acting Master Strk

25 JUNE 2021