Kadiev v Petrov

[2023] NSWSC 1031

Supreme Court

New South Wales

Medium Neutral Citation:

Kadiev v Petrov [2023] NSWSC 1031

Hearing dates:

In chambers

Date of orders:

30 August 2023

Decision date:

30 August 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Order made pursuant to s 93 Probate and Administration Act 1898 (NSW) barring the claim of the defendant

Catchwords:

SUCCESSION — Executors and administrators — Distribution of estate — The plaintiff executrix is granted probate and publishes s 92 Probate and Administration Act 1898 (NSW) (PAA) notice — The defendant’s solicitors serve a claim which is disputed by the plaintiff’s solicitors — The plaintiff’s solicitors serve a notice disputing claim pursuant to s 93 PAA — The plaintiff commenced proceedings seeking a barring order pursuant to s 93 PAA — The defendant consents to such order and the parties request the Court to make orders prior to the expiry of the 3-month period referred to in s 93 PAA — Judge makes requisitions regarding a privilege issue and for provision of submissions on jurisdiction — Parties belatedly respond to requisition but provide no submissions — Held Court has no power to make a barring order prior to the expiry of the 3-month period — However due to delayed response the 3-month period elapses and barring order is made

SUCCESSION — Executors and administrators — Barring order pursuant to s 93 PAA — Discussion of conditions on which the Court may act to make a barring order — Consideration of whether the Court may make order prior to expiry of 3-month period or abridge the time at which the specified 3-month period may expire in any given case

STATUTORY CONSTRUCTION — Consideration of principles regarding statutory construction — Consideration of text, purpose and context of the provisions of s 93 PAA

Legislation Cited:

Administration and Probate Act 1911 (Vic)

Administration of Estates Act 1954 (NSW)

District Court Act 1973 (NSW)

Family Provision Act1982 (NSW)

Interpretation Act 1987 (NSW)

Law of Property and Trustees Relief Amendment Act 1859, 22 & 23 Vict, c 35

Probate Act of 1890 Amendment Act 1893 (NSW)

Probate and Administration Act 1898 (NSW)

Public Trustee Act 1913 (NSW)

Succession Act 2006 (NSW)

Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)

Trust Property Act 1862 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Application of Doolan [2023] NSWSC 320

Aviani v Loh(No 2) [2022] NSWSC 1148; (2022) 405 ALR 337

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

English v Stewart [2022] NSWSC 268

In re Bracken; Doughty v Townson (1889) 43 ChD 1

In re Long (deceased) [1951] NZLR 661

In the Will of Gibbon (1914) 31 WN (NSW) 163

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48

Kondratenko v Burec [2003] NSWSC 635

Ludwig v Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890

R v Moore; Ex parte Australian Workers’ Union (1976) 11 ALR 449

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48

Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370

Texts Cited:

Hastings, Roland and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd)

Janes, Stephen, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters)

Category:

Principal judgment

Parties:

Zora Kadiev (Plaintiff)
Betty Petrov (Defendant)

Representation:

Counsel:

Solicitors:
Owen Hodge Lawyers (Plaintiff)
D Stanefska & Associates (Defendant)

File Number(s):

2023/180508

JUDGMENT

1. HIS HONOUR: This judgment deals with a practical aspect in relation to the provisions for barring claims pursuant to s 93 Probate and Administration Act 1898 (NSW) (PAA).

2. Specifically, the issue which arises is whether the Court has power to bar a claim pursuant to s 93(2) PAA prior to the lapsing of the 3-month period or whether the Court has power to abridge the time referred to in s 93(2).

The facts

3. The facts may be shortly stated.

4. The plaintiff, by summons filed on 6 June 2023, seeks an order pursuant to s 93 barring a claim of the defendant against the plaintiff in her capacity as executrix of the Will of the late Slave Petrov (the deceased).

5. The deceased died on 9 June 2021.

6. On 20 October 2021, the Court granted probate to the plaintiff of a Will of the deceased dated 31 July 2019.

7. On 16 March 2023, the plaintiff caused to be published on the New South Wales Online Registry website a Notice of intended distribution of an Estate in the approved form: s 92(1)(b) PAA, which approved form is Form 114 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) forms.

8. On 2 May 2023, the defendant’s solicitors served upon the plaintiff’s solicitors a claim “in respect of the assets of the estate” in the amount of $180,000 referring to prior correspondence regarding the claim and requesting the estate to pay the sum of $180,000 to the defendant within 14 days of the date of the letter failing which the defendant would proceed to issue a statement of claim for what was described as recovery of a loan to the estate without further notice.

9. On 10 May 2023, the plaintiff’s solicitors responded to that letter. The letter is not in evidence. However, by reference to later correspondence, it appears that the letter raised the prospect of an application barring the claim.

10. On 19 May 2023, the defendant’s solicitors sent an email to the plaintiff’s solicitors marked “Without Prejudice Save as to costs”. I pause to note that following a requisition to the respective solicitors, the parties made a conscious decision to waive any privilege in respect of the correspondence annexed to the affidavit in support of the plaintiff which is marked as being sent on a “without prejudice” basis.

11. The letter from the defendant’s solicitors exposed a degree more detail regarding the claim noting that the deceased and the husband of the defendant undertook renovation work on a property at Arncliffe some 25 years ago with the assistance of tradesmen and that the plaintiff executrix was aware of the work being undertaken. The letter asserted that the sale price of the property was achieved partly due to the renovation work undertaken by the defendant and the deceased.

12. On 25 May 2023, the plaintiff’s solicitors responded to the letter dated 19 May 2023 and indicated that they were instructed to serve on the defendant a notice disputing claim pursuant to s 93 PAA and were further instructed to make a partial distribution of the estate to beneficiaries notwithstanding the possible commencement of proceedings against the plaintiff executrix.

13. The notice disputing claim pursuant to s 93 PAA was served by email on the defendant’s solicitors.

14. The affidavit of the plaintiff sworn on 6 June 2023 in support of seeking the barring order indicated that she disputed the claim of the defendant giving reasons in particular that the work claimed had been performed 25 years ago and the defendant did not provide any supporting evidence to substantiate the claim.

15. On 29 May 2023, the defendant’s solicitors corresponded with the plaintiff’s solicitors indicating “as previously stated we have been instructed by our client not to proceed with the claim against the Estate”.

16. On 6 June 2023, the plaintiff filed the summons commencing the proceedings.

17. On 16 June 2023, the defendant filed a submitting appearance.

18. The summons was allocated a return date of 21 July 2023.

19. On 12 July 2023, the defendant’s solicitors corresponded by email with the plaintiff’s solicitors referring to the proceedings and a proposed form of email to my Associate noting the defendant’s instructions to consent to the proposed orders.

20. On 17 July 2023, prior to the return date for the summons, the plaintiff’s solicitors corresponded with my Associate by email (with the consent of the defendant) noting that the parties had agreed to certain orders being in summary:

1. an order pursuant to s 93(2) PAA that the defendant is barred from making any claim against the plaintiff as administrator of the deceased’s estate;

2. an order that the plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased; and

3. other such orders as the Court deems necessary.

21. On 19 July 2023, upon my request my Associate responded to the respective solicitors indicating that I was not prepared to make the orders as sought and asked the parties to address an issue as to whether there would be any waiver of privilege in respect of materials that were annexed to the plaintiff’s affidavits and to provide submissions, on or before 4 PM on 14 August 2023, in respect of the proposition that a barring order may be made pursuant to s 93(2) prior to the lapsing of the 3-month period or that the Court had power to abridge the time referred to in s 93(2).

22. To enable the parties time to address those issues I made orders vacating the listing on 21 July 2023 and adjourning the matter to 30 August 2023.

23. No submissions were received by 14 August 2023.

24. On 23 August 2023, the plaintiff’s solicitors responded to my Associate (with the consent of the defendant’s solicitors) confirming that there was a waiver of privilege and attaching letters to that effect.

25. On 24 August 2023, at my request my Associate informed the parties that I proposed to deal with the matter in Chambers after the expiry of the 3-month period.

Section 93 PAA

26. Section 93 PAA is in the following terms:

93   Claims barred against executor or administrator in certain cases

(1) When the executor or administrator of the estate of a testator or an intestate has published the notices referred to in section 92 (1) and a claim in respect of the assets of that estate is submitted to the executor or administrator, the executor or administrator may, if the executor or administrator disputes the claim, serve on the person by whom or on whose behalf the claim was submitted a notice calling on the person to take proceedings to enforce the person’s claim within a period of 3 months from the date of service of the notice and to prosecute the person’s claim.

(2) If, after a notice has been served on a person in accordance with subsection (1) and the period of 3 months referred to in the notice has expired, that person does not satisfy the Court that the person is prosecuting the person’s claim, the Court may, on an application in that behalf made by the executor or administrator—

(a) make an order barring the claim of that person as against the executor or administrator, subject to such conditions (if any) as it thinks just and equitable, or

(b) make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.

(3) Where—

(a) in its capacity as executor or administrator, the NSW Trustee or a trustee company—

(i) disputes any claim upon an estate (whether the claimant claims to be a creditor or to have a beneficial interest in the estate), and

(ii) has served on the claimant a notice in accordance with subsection (1), and

(b) the claimant has not, within the period of 3 months referred to in the notice served in accordance with subsection (1), commenced proceedings to enforce the claim,

the NSW Trustee or the trustee company may serve a further notice on the claimant that unless, within the period of 2 months from the date of service of that further notice, the NSW Trustee or the trustee company is duly served with process of court issued in proceedings to enforce the claim, the NSW Trustee or the trustee company will distribute the estate without regard to the claim.

(4) If, within the period of 2 months referred to in a notice served on a claimant in accordance with subsection (3), the NSW Trustee or a trustee company has not been duly served with process as referred to in that subsection, the claimant’s claim shall thereupon be barred and become irrecoverable as against the NSW Trustee or the trustee company and the NSW Trustee or the trustee company may proceed to distribute the estate without regard to the claim.

(5) The NSW Trustee or a trustee company may, if it thinks fit, waive any objection which it might, by virtue of subsection (4), take to proceedings commenced by a claimant after the expiration of the period of 2 months referred to in a notice served on the claimant in accordance with subsection (3).

(6) The powers conferred on the NSW Trustee or a trustee company by subsections (3) and (4) are in addition to the powers exercisable under subsection (2).

Construction

Principles

27. Statutory construction involves the Court looking at text, context and purpose: see e.g. s 33 of the Interpretation Act 1987 (NSW) (Interpretation Act); Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 (Wass) at [3], [25] per Leeming JA, (Bell CJ at [1] and Kirk JA at [64] agreeing); Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 (Zhang) at [86] per Leeming JA.

28. This is unsurprising. Generally, all words may have different shades of meaning in different contexts. Whether language is plain and unambiguous is a conclusion which can only be reached after regard to context and purpose: Wass at [3] per Leeming JA. Thus, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance” (than without reference to context and purpose): Wass at [3] per Leeming JA citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

29. It is thus clear that the process of construction requires that context be considered in the first instance: Wass at [3] per Leeming JA citing K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 at 315 per Mason J (as his Honour then was); Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [57] per Bell P (as the Chief Justice then was).

Context

30. Sections 92 and 93 PAA are part of the one statutory scheme which enables legal personal representatives to establish what claims are made on the estate of a deceased by any relevant parties including beneficiaries and creditors: Ludwig v Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890 (Ludwig) at [276] per Campbell J (as his Honour then was). In Ludwig, Campbell J addressed the procedure for barring claims, the sections’ legislative history, how the sections operate and the meaning of the expression “a claim in respect of the assets” of the estate.

31. One matter which is not evident is whether the Court has power to make an order barring a claim prior to the expiration of the 3-month period or an order abridging the time at which the 3-month period may expire.

32. Section 93 PAA in its terms refers to s 92 PAA. Despite this express connection, the provisions were not introduced into the form of what is now known as the PAA at the same time.

33. Section 92 is based on s 29 of the Law of Property and Trustees Relief Amendment Act 1859, 22 & 23 Vict, c 35 (Lord St Leonards’ Act). It was introduced in New South Wales in 1862 by s 29 Trust Property Act 1862 (NSW) (also referred to as 26 Vic No 12): e.g. Application of Doolan [2023] NSWSC 320 at [203]-[204].

34. Section 93, on the other hand, is not analogous to anything in Lord St Leonards’ Act: Ludwig at [269] per Campbell J (as his Honour then was) (I pause to note that the authorised report only extracts his Honour’s decision in relation to the background to the litigation and the effect of service of statutory notices which deal with the provisions of ss 92 and 93 PAA. Ludwig also addressed powers of the police to retain property (banknotes) and is reported in its entirety at (2006) 170 A Crim R 460. An appeal to the Court of Appeal from the decision of Campbell J was dismissed without any adverse comment regarding his Honour’s commentary in relation to the workings of ss 92 and 93 PAA: Ludwig v The Public Trustee [2008] NSWCA 115).

35. The initial form of s 93 was first introduced into New South Wales by s 24 Probate Act of 1890 Amendment Act 1893 (NSW) (Probate Amendment Act): Ludwig at [269]. The provision was as follows:

24. When an executor or administrator has given notice in accordance with section twenty-nine of the “Trust Property Act of 1862,” and a claim against the estate is sent in to him, he may, if he dispute the claim, serve upon the person by whom or on whose behalf the claim was sent in a notice calling upon him to take proceedings to enforce his claim within a period of six months, and to duly prosecute the same, and if after the said period of six months has expired such person as aforesaid does not satisfy the Court that he is duly prosecuting his claim, the Court may, on application by the executor or administrator, make an order barring the claim against the executor or administrator, subject to such conditions as may seem just, or may make such other order as the Court may think fit: Provided that nothing in this section shall prejudice the right of any creditor or claimant to follow the estate or any part thereof into the hands of any person who may have received the same.

Purpose

36. The amendments brought about by the Probate Amendment Act were various. The Second Reading speech in the Legislative Assembly on 6 June 1893 indicates a number of purposes for the amendment bill: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 1893 at 8029-8030 (Thomas Slattery, Secretary for Mines and Agriculture). However, the speech does not address, specifically, the reason for the introduction of the provision in s 24 regarding barring of claims.

37. Of some note in the provisions of the then s 24 is the fact that the time period for barring of claims after the service of a notice was a 6-month period.

38. A similar provision to s 24 Probate Amendment Act was introduced in Victoria by the Administration and Probate Act 1911 (Vic).

39. Some insight in relation to the reasons for the introduction of the then s 24 Probate Amendment Act in New South Wales may be gleaned from the purposes disclosed in the speech of Sir John Mackey in the Victorian Legislative Assembly at the time of the introduction of the relevant legislation in Victoria in 1911.

40. Campbell J in Ludwig referenced the speech (at [272]) which in substance noted that some creditors were resorting to methods of avoiding the operation of provisions of the equivalent of s 92 by giving notice of claims to executors but without prosecuting such claims seemingly with the intent of inducing the executor to reach some compromise. The legislature was concerned that executors had no mechanism of forcing persons who had given notice of such claims to bring them to a head and what was proposed (at least in Victoria) was that the executor or administrator upon receiving notice of a claim could give notice to the claimant to take proceedings to prove the claim within 3 months.

41. In 1954, the time period for barring of claims after the service of a notice was amended from 6 months to 3 months: s 3(h) Administration of Estates Act 1954 (NSW) (Administration of Estates Act). The amendments brought in by the Administration of Estates Act were significant including amending the law of intestacy and provisions in the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) and the Public Trustee Act 1913 (NSW). However, the precise reasons for the reduction of the period of time from 6 months to 3 months in s 93 PAA do not appear from the Second Reading materials.

42. The period of 3 months, as it will be observed from the above, is a shorter period than the initial 6-month period specified when the barring provisions were first introduced in New South Wales in 1893. The legislation in this respect, in nominating a period of 3-months as an appropriate period of time, appears to strike a balance in accommodating a number of considerations. First, it is a much shorter period of time than any time for executors to have to wait for ordinary limitation periods to expire: e.g. Ludwig at [272]. Secondly, it is sufficiently long to enable a claimant to formulate the claim without being rushed to do so.

36. In this regard, s 93 has been described as a procedure which enables an executor or administrator to bring to a head any unresolved claims of which the executor has notice: Ludwig at [272].

37. More broadly, the provisions of ss 92 and 93 operate to provide a special procedure for the benefit not merely of administrators, which is not generally available to ordinary persons administering a fund, but also beneficiaries of an estate.

38. The provisions benefit administrators by ensuring that there is a relatively swift mechanism for dealing with claims so that the estate is quickly administered. The provisions also benefit beneficiaries by ensuring that they are not kept out of payment of estate property (after dealing with such claims) to which they are otherwise entitled: see Ludwig at [291] citing comments of the New Zealand Court of Appeal in In re Long (deceased) [1951] NZLR 661 at 672 per Stanton J for the Court.

39. In addition, s 93 has a practical effect of casting on the claimant the onus of proving in litigation the claim: Ludwig at [293].

40. This has various advantages for an executor or administrator.

41. An example was given by Campbell J in Ludwig where his Honour noted that it is a common circumstance that an executor or administrator of a deceased estate is not fully informed about the dealings of the deceased person relevant to the estate particularly so where the executor or administrator is not closely related or closely known to the deceased. In some circumstances, persons may make claims presenting the executor or administrator with a fait accompli concerning, for example, a claim over chattels. Campbell J noted that it would be unreasonable to expect the administrator to undertake the onus of proving title to the chattels and that the practical effect of s 93 allows the administrator a mechanism of casting on the claimant the onus of proving a claim such as a claim of title to chattels: Ludwig at [293].

Text

49. The structure of s 93 differentiates between two types of executors and administrators. Subsections (1) and (2) address executors and administrators generally. Subsections (3)-(6) provide additional provisions specifically directed to the NSW Trustee or a trustee company each in their capacity as executor or administrator.

50. Part of the reason for distinguishing between executors and administrators generally on the one hand in subsections (1) and (2) and the NSW Trustee or a trustee company on the other hand in subsections (3)-(6) is that the NSW Trustee and trustee companies have special powers which enable them to serve a further notice which invokes a mechanism for the NSW Trustee or trustee companies to effectively bar claims themselves rather than going to the Court to seek an order for the barring of such claims: see also Ludwig at [296].

51. Section 93 addresses the point of time at which an executor or administrator has published a s 92 notice and in response to such notice a claim in respect of the assets of the estate is submitted to the executor or administrator.

52. It is a precondition for the operation of s 93 that the executor or administrator serving the s 93 notice has published notices under s 92: Ludwig at [297].

53. Subsection (1), in the context that I have just described, envisages a type of decision-making on the part of the executor or administrator on the one hand and decision-making on the part of the claimant on the other.

54. Thus, the executor or administrator must make a decision as to whether he, she or it disputes the claim that has been made or allows the claim.

55. In the event that the executor or administrator allows the claim, the section has no further operation. Prima facie, the executor or administrator simply administers the estate on the basis that the claim is allowed.

56. However, in the event that the administrator disputes the claim, the administrator is to serve on the claimant a notice calling upon the claimant to take proceedings to enforce the claim within a period of 3 months from the date of service of the notice to prosecute the claim.

57. The reference to “months” in the “3 months” period in s 93(1) and (2) is not defined in the legislation. It is one of those terms which is defined by reference to the Interpretation Act.

58. The Dictionary in sch 4 Interpretation Act, defines certain terms: s 3(3) Interpretation Act.

59. One of the terms which the Dictionary in sch 4 defines is “month” which is specified as meaning a “calendar month”. The term “calendar month” is defined as meaning a period commencing at the beginning of a day of one of the 12 named months (of any given year) and ending (a) immediately before the beginning of the corresponding day of the next named month, or (b) if there is no such corresponding day, at the end of the next named month.

60. Definitions that occur in an Act apply to the construction of the Act except in so far as the context or subject-matter otherwise indicates or requires: s 6 Interpretation Act.

61. There is no indication in s 93 PAA or the PAA generally that “month” should be construed as other than meaning a calendar month. Accordingly, the reference to “months” in the “3 months” period in s 93(1) and (2) is to be understood as being “calendar months”.

62. It will be observed from the above scheme of the provisions of subsections (1) and (2) that there are elements which are types of preconditions to the Court making a barring order.

63. The Court’s power to bar claims under s 93(2) is predicated on a number of matters being:

1. that a s 93 notice has been served on the claimant (service of notice):

2. a period of 3 months has expired (expiry of time):

3. an application being made to the Court by the executor to seek a barring order (application); and

4. the claimant not satisfying the Court that he, she or it is prosecuting the claim (prosecution of claim).

64. The Court is not obliged to make such a barring order and it has specified options open to it.

65. One such option is for the Court to make a barring order of the claim as against the executor or administrator. Such a barring order may be absolute or subject to such conditions (if any) as the Court thinks just and equitable: s 93(2)(a).

66. Further, the Court has power not to make a barring order but to make such other order in respect of the application as the Court thinks just and equitable having regard to the circumstances of the case: s 93(2)(b).

67. The Court’s jurisdiction to make a barring order or some other order is described in discretionary and broad flexible terms.

68. There is a nice question as to whether the executor/administrator is obliged to wait for the 3-month period to elapse before making an application to the Court. There are good reasons to think that might be the case particularly as any such application will prima facie be premature and potentially futile, if the time for the claimant to bring a claim has not elapsed, and a claimant perhaps after a month (i.e. well within the specified time) takes proceedings to enforce the claimant’s claim.

69. However, I do not intend at least in this judgment to particularly address the question of whether an application by summons filed prior to the expiry of the 3-month period (as is the case here) is impermissibly filed or potentially even a nullity.

The legal meaning in light of context, purpose and text

70. In light of the above, it is necessary to fix upon the legal meaning of the provisions of s 93(2) PAA.

71. First, I note that there is no express wording within the provisions of s 93 suggestive that the Court may abridge or shorten the period within which a barring order may be made.

72. Secondly, the four preconditions referred to in the opening part of s 93(2) (service of notice; expiry of time; application and prosecution of claim) do not bear all the same character.

73. The first three preconditions (service of notice; expiry of time and application), prima facie, in both wording and context bear a precise and fixed character. Service is something susceptible of being precisely proved, as is expiry of time and the bringing of an application.

74. On the other hand, the fourth requirement (prosecution of claim) of its nature calls for some assessment by the Court of what is necessary to prosecute a claim and the steps being taken by the claimant to do that. It is clear from the interaction between the provisions of s 93(1) and (2) that the means by which the claimant “prosecutes” a claim involves at least the claimant “tak[ing] proceedings to enforce ... the claim” (i.e. commencing court proceedings): s 93(1).

75. Once proceedings are commenced either by the claimant, or the executor/administrator, the matter comes under the supervision of the Court and the claim is practically speaking resolved in the same way as ordinary civil proceedings are resolved within the court system. Helpfully, in English v Stewart [2022] NSWSC 268 (English v Stewart), Hallen J set out a number of considerations regarding the procedure and principles in relation to an application to bar a claim: at [64].

76. On one view, the contrast between:

1. the first three preconditions and their precise character; and

2. the fourth precondition and the Court’s discretion to make a barring order (and the breadth of options open to it to make a barring order on terms or some other order)

informs the conclusion of whether the expiry of the 3-month period referred to in the opening part of s 93(2) is mandatory and whether the Court has any power to abridge it.

77. There is, to my mind, nothing in particular about the structure of s 93 which suggests that the expiry of the 3-month period is not mandatory in its terms.

78. The commentary in Roland Hastings and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd) (Hastings & Weir) at 296 (at a point of time at which the period referred to in s 93 was the 6-month period) suggests that strict compliance with all requirements of the PAA is necessary before the Court will make such an order citing the decision of Harvey J in In the Will of Gibbon (1914) 31 WN (NSW) 163 (Gibbon). That commentary is replicated in the modern successor of Hastings & Weir, namely Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) at 909.

79. In Gibbon, Harvey J stated at 163:

This being a provision for the benefit of the executor to relieve him from claims due by the testator it is necessary for him to bring himself within the four corners of the Statute.

80. On the facts, in Gibbon it appears that there were deficiencies not per se in the s 93 notice but rather in an initial s 92 notice whereby the executor advertised his intended application for probate coupled with a request for creditors to send in particulars of their claims within a period of 14 days.

81. Harvey J considered that the s 92 notice in question was insufficient in form and substance. His Honour, in making observations about the then publication requirements, observed, additionally, that the time fixed for bringing in claims should be not less than one month citing In re Bracken; Doughty v Townson (1889) 43 ChD 1.

82. Thirdly, I note that where a legislature makes provision for time limits in legislative provisions, in some instances there are statutory provisions which enable the Court in certain circumstances to abridge time for doing certain things: e.g. r 1.12 UCPR.

83. A particular example of abridgement of time in relation to claims in respect of an estate was contained within the provisions of s 17 of the Family Provision Act 1982 (NSW) (Family Provision Act) which permitted an administrator of the estate of a deceased person or any person who in the opinion of the Court had a sufficient interest to make an application to the Court to shorten the prescribed period of 18 months after the death of the deceased in which any claim for provision might be instituted. Anecdotally, very few orders were made under such provision. In Kondratenko v Burec [2003] NSWSC 635, Master McLaughlin (as his Honour then was) dealt with an application in which the summons sought an order under s 17 Family Provision Act for the shortening of the prescribed period in which to bring a claim albeit that the claim for relief was overtaken by events namely that the defendant (applicant) filed a cross-claim seeking family provision relief: at [4]-[5].

84. The power of the Court to shorten the time for bringing family provision claims was not reproduced in the Succession Act 2006 (NSW).

85. There is no specific indication within the provisions of s 93 which suggests that the period of 3 months is not a mandatory minimum period or suggests that it is able to be abridged (cf s 17 of the Family Provision Act).

86. In my assessment, the natural tenor of the words in context, having regard to the nature of the legislative provisions and their role in facilitating a distribution of a deceased’s estate after dealing with claims, suggests that the 3-month period is a mandatory provision not able to be abridged by the Court. In other words, assuming the other preconditions are satisfied, it is the expiry of the 3-month period which “provides a jurisdictional basis” for the Court to make the barring order: English v Stewart at [62] per Hallen J.

87. It is legitimate for the Court to check the correctness of a particular view on construction of a statutory provision to which it has arrived at by considering whether it produces practical results which are sensible, rather than ones which are very seriously anomalous: Ludwig at [293] citing Ganter v Whalland (2001) 54 NSWLR 122; [2001] NSWSC 1101 at 131 [35]-[36] and the cases there cited.

88. If the 3-month period is viewed as a minimum period of time before the Court may make a barring order, it prevents the potentiality for uncertainty by undermining the terms of the notice which has been served in accordance with the statutory provisions under s 93(1) which informs the claimant of a certain period within which the claimant is to act, or face the prospect of an application for a barring order.

89. The above confirms to me that the appropriate construction of the 3-month period is that it is a mandatory minimum period of time which is a precondition to the Court acting to make a barring order (or some other appropriate order) and a period which is not able to be abridged by the Court.

Is consent an exception?

90. One question which arises is whether, apart from the legal meaning of the provisions of s 93 PAA, the consent of the parties to the making of an order makes any difference to the exercise of the Court’s power.

91. Generally speaking, parties cannot by consent confer jurisdiction on a Court to make orders which the Court lacks power to make: Aviani v Loh (No 2) [2022] NSWSC 1148; (2022) 405 ALR 337 (Aviani v Loh (No 2)) at [235] citing R v Moore; Ex parte Australian Workers’ Union (1976) 11 ALR 449 at 453 per Barwick CJ (Gibbs, Stephen, Mason and Jacobs JJ agreeing); Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 at 163 per Gibbs CJ, Stephen, Mason and Wilson JJ.

92. As I noted in Aviani v Loh (No 2), that general position may of course be altered by statutory provisions: e.g. s 51 District Court Act 1973 (NSW). However, here there are no relevant statutory provisions permitting the Court to make an order abridging the time of 3 months under s 93 PAA by consent.

93. Having regard to the provisions of s 93 as a matter of statutory construction and in the absence of any submissions indicating otherwise, I am not persuaded that the Court may make a barring order prior to the expiry of the 3-month period under s 93(2) notwithstanding the consent of the parties.

Outcome

94. I now deal with the application having regard to the above-mentioned principles. I do so on the basis not of the consent of the parties but by reference to the statutory provisions in light of the established facts.

95. I am satisfied that a s 92 notice was published on 16 March 2023.

96. Clearly, a decision was made by the defendant claimant to make a claim which was served upon the plaintiff’s solicitors on 2 May 2023. The plaintiff executrix disputed that claim on 10 May 2023. Further details were provided on 19 May 2023.

97. On 25 May 2023, a notice disputing claim pursuant to s 93 PAA was served by email on the defendant’s solicitors.

98. The 3-month period from the date of the service of the notice disputing claim on 25 May 2023 expired immediately before the beginning of 25 August 2023, effectively midnight on 24 August 2023.

99. On the facts, the defendant has not satisfied me that she is prosecuting her claim. Rather, the evidence is expressly to the effect that she is consciously not prosecuting the claim. That is established by the correspondence from the defendant’s solicitors to the plaintiff’s solicitors on 29 May 2023, indicating “as previously stated we have been instructed by our client not to proceed with the claim against the Estate”. It is reinforced by the evidence in the plaintiff’s affidavit that seemingly the defendant had, at that point of time, not provided any supporting evidence to substantiate the claim.

100. Whilst the Court has a discretion to make a barring order or such other order in respect of the application as it thinks just and equitable, there is no suggestion on the facts that an order other than a barring order as is sought by the plaintiff executrix is appropriate.

101. In the circumstances, I make the following orders:

1. Order pursuant to s 93(2) Probate and Administration Act 1898 (NSW) that the defendant is barred from making any claim against the plaintiff as executrix of the estate of the late Slave Petrov.

2. Order that the plaintiff’s costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased.

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Decision last updated: 30 August 2023