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Kadiev v Petrov

Kadiev v Petrov

Case [2023] NSWSC 1031 30 August 2023

Standing

Statutory Interpretation

Limitation Periods

Succession Law

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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

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 Kadiev v Petrov

Details

AGLC: Kadiev v Petrov [2023] NSWSC 1031
Case: [2023] NSWSC 1031
Decision Date: 30 August 2023

CaseChat Overview and Summary

The case of Kadiev v Petrov involved a dispute over the distribution of an estate. The plaintiff, Kadiev, was the executrix of the deceased's estate and had been granted probate. She had published the necessary notice under section 92 of the Probate and Administration Act 1898 (NSW) (PAA). The defendant, Petrov, had lodged a claim which was disputed by the plaintiff's solicitors. The plaintiff's solicitors subsequently served a notice disputing the claim under section 93 of the PAA. Kadiev then commenced proceedings seeking a barring order pursuant to section 93 of the PAA. Petrov consented to the barring order, and both parties requested the court to make orders before the expiry of the three-month period mentioned in section 93 of the PAA.

The court was tasked with determining whether it had the power to make a barring order before the expiry of the three-month period as stipulated in section 93 of the PAA. The court also considered whether it could abbreviate the time at which the specified three-month period might expire in any given case. The court found that while it did not have the power to make a barring order prior to the expiry of the three-month period, the delayed response of the parties resulted in the three-month period elapsing, allowing the barring order to be made. The court also examined the principles of statutory construction, considering the text, purpose, and context of the provisions of section 93 of the PAA.

The court held that it did not have the power to make a barring order prior to the expiry of the three-month period, but due to the parties' delayed response, the three-month period had lapsed, leading to the barring order being made. The court further discussed the conditions under which it may act to make a barring order and the principles of statutory construction relevant to the interpretation of section 93 of the PAA. The final orders were made in favour of the plaintiff, Kadiev, granting the barring order as requested.

Orders