Jurasz v Cesna

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.