Jurasz v Cesna - [2024] NSWSC 1315

Supreme Court

New South Wales

Medium Neutral Citation: Jurasz v Cesna [2024] NSWSC 1315
Hearing dates: 27 September, 1 October 2024
Date of orders: 1 October 2024
Decision date: 01 October 2024
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Meek J
Decision:
Orders made for the proposed independent administrator to be appointed, revocation of an existing r 7.10 UCPR appointment, as well as other consequential and ancillary orders for the administration of the estate and the conduct of the defence of the proceedings.

Catchwords:
SUCCESSION — Family provision — Claim by stepdaughter of the deceased out of time — Deceased died intestate and was survived by her (allegedly estranged) sister, the current defendant — Main asset of the estate was a unit subject to a mortgage, which had subsequently gone into default, and the mortgagee had gone into possession and was proceeding to exercise its power of sale — Following various delays and disruptions to an application being made by any party for letters of administration, the plaintiff filed a notice of motion seeking to have an independent administrator appointed — Appointment made
SUCCESSION — Administration of estates — Practice and procedure — Preservation of assets —Discussion of importance for parties legally interested in the administration of an estate to take prompt steps to identify, preserve and secure assets of the estate, especially in the context of actual or potential family provision proceedings — If such parties are stymied in that course, they should approach the Court in a timely manner seeking relief by way of an interim special grant
SUCCESSION — Practice and procedure — Practical guidance — Parties and legal practitioners involved in estate disputes should, before commencement of proceedings, consider the nature of the relief sought and status of estate assets to ensure that any court process, if started, has some realistic prospect of yielding a practical outcome — Practitioners should have a “big picture” outcomes awareness in considering the overall forensic strategy of each case and what steps may be necessary to initially preserve property that is the source of any provision in the proposed action, with an eye to monitoring or reviewing matters or risks which may jeopardise meaningful outcomes from such property
SUCCESSION — Administration of estates — Appointment of administrators — Status of the Law Society’s List of Independent Administrators — List is a helpful resource to the Court, but it does not bind or compel the Court to only choose independent administrators from that list
SUCCESSION — Administration of estates — Discussion of role of the NSW Trustee and Guardian in circumstances where estate property has vested in it pursuant to s 61 of the Probate and Administration Act 1898 (NSW) — Whether NSW Trustee and Guardian should be appointed over another independent administrator (solicitor)
SUCCESSION — Representation of an estate — Proposed appointment of an independent administrator — On occasion separate appointments of representatives for an estate can co-exist, but they are not necessarily ideal — In…

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.

Continue reading Jurasz v Cesna

Details

AGLC: Jurasz v Cesna [2024] NSWSC 1315
Case: [2024] NSWSC 1315
Decision Date: 01 October 2024

CaseChat Overview and Summary

The case of Jurasz v Cesna involved a family provision claim by the stepdaughter of the deceased, out of time, against the estate of her allegedly estranged sister, the defendant. The deceased had died intestate and was survived by the defendant. The main asset of the estate was a unit subject to a mortgage, which had subsequently gone into default, with the mortgagee now proceeding to exercise its power of sale. Various delays and disruptions to an application being made by any party for letters of administration led the plaintiff to file a notice of motion seeking to have an independent administrator appointed. The appointment was subsequently made.

The court considered the importance of parties legally interested in the administration of an estate taking prompt steps to identify, preserve, and secure assets, especially in the context of actual or potential family provision proceedings. The court emphasised the necessity for parties and legal practitioners involved in estate disputes to consider the nature of the relief sought and the status of estate assets to ensure that any court process has a realistic prospect of yielding a practical outcome. The court also discussed the role of the NSW Trustee and Guardian and the status of the Law Society’s List of Independent Administrators, noting that while the list is a helpful resource to the Court, it does not bind or compel the Court to only choose independent administrators from that list.

The court examined the proposed appointment of an independent administrator and the potential for separate appointments of representatives for an estate to co-exist, though not necessarily being ideal. The court highlighted the need to clarify the terms, nature, and scope of the representatives' functions and whether any of the representatives had or would likely have a right to indemnity from the estate or the facility to seek judicial advice. Finally, the court noted that it is not necessary for a defendant who has entered an appearance in proceedings to file a further notice of appearance to an amended summons.

The court's final orders included the appointment of an independent administrator for the estate and directed the parties to take appropriate steps to ensure the preservation and administration of the estate assets, with a focus on facilitating any potential family provision proceedings.

Orders