Kuitkowski v Tream - [2023] NSWSC 145

Supreme Court

New South Wales

Medium Neutral Citation: Kuitkowski v Tream [2023] NSWSC 145
Hearing dates: 30 January 2023
Date of orders: 27 February 2023
Decision date: 27 February 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See [50] – [55]

Catchwords:
SUCCESSION — executors and administrators — proceedings against executors and administrators — application for removal — where removal justified as administrator does not recognise jurisdiction of Court, and has failed to fully administer the estate — order for revocation of grant, with fresh grant to independent administrator

Legislation Cited:
Probate and Administration Act 1898 (NSW), ss 66(a), 74(c), 81A(1)
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
O’Neill v O’Neill [2015] NSWSC 644

Category: Principal judgment
Parties: Tomasz Kuitkowski (plaintiff/first cross defendant)
Blossom Anne Tream (defendant/cross claimant)
Ann Warmbier (second cross defendant)
Adriana Czurgiel (third cross defendant)
Bartosz Gregorczyk (fourth cross defendant)
Diana Kuitkowski (fifth cross defendant)
Mick Wywrota (sixth cross defendant)
Representation: Counsel:
N Kirby (plaintiff)
Blossom Anne Tream (self-represented)
Solicitors:
McIntyre Legal (plaintiff)

File Number(s): 2022/00032832

JUDGMENT

Stan Tream (also known as Stanislaw Tremtiaczy) (the Deceased) died on 7 November 2018, leaving a will dated 20 February 2015 (the Will).
The executors named in the Will renounced probate. On 26 August 2020, the Court granted letters of administration with the Will annexed to the deceased’s de facto spouse, Blossom Anne Tream, the defendant in these proceedings (the Grant).
The plaintiff is Tomasz Kuitkowski, one of the beneficiaries of the Will, who is entitled to receive 2% of the Deceased’s estate.

Pleadings and issues

By his statement of claim filed on 4 February 2022, the plaintiff seeks an order that the Grant to the defendant be revoked, and that letters of administration with a copy of the Will annexed be made to a nominated solicitor, or such other fit and proper independent person as the Court directs. The plaintiff also seeks consequential orders.
The defendant filed a defence and a cross claim on 16 March 2022. The cross claim seeks a number of declarations concerning the proper construction of parts of the Will. There are six named cross defendants. The Court was informed at the hearing by counsel for the plaintiff that the defendant had not served all of the cross defendants (some at least of whom reside in Poland). The defendant did not contest this information.
On 13 April 2022, the plaintiff filed a notice of motion in which he sought an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the claims for the revocation of the Grant and the appointment of a new administrator in the statement of claim be determined separately, and prior to the determination of the remainder of the issues in dispute, which effectively meant prior to the issues that arise on the cross claim.
On 26 August 2022, the Court made an order in chambers for the plaintiff’s notice of motion and the substantive proceedings to be listed for hearing by me on the…

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 Kuitkowski v Tream

Details

AGLC: Kuitkowski v Tream [2023] NSWSC 145
Case: [2023] NSWSC 145
Decision Date: 27 February 2023

CaseChat Overview and Summary

The case of Kuitkowski v Tream involved a dispute over the administration of an estate. The applicant sought the removal of the current administrator, arguing that the administrator did not recognise the jurisdiction of the Court and had not fully administered the estate. The application was brought before the Supreme Court of New South Wales. The legal issues the Court had to determine were whether the removal of the administrator was justified and, if so, whether the grant of administration should be revoked and a fresh grant made to an independent administrator.

The Court considered the circumstances under which an administrator may be removed and the grounds for such a removal. It found that the administrator's refusal to recognise the Court's jurisdiction and the failure to fully administer the estate constituted sufficient grounds for removal. The Court emphasised that the administrator's conduct warranted intervention to ensure the proper administration of the estate. Consequently, the Court ordered the revocation of the grant of administration and directed that a fresh grant be made to an independent administrator. This decision was made to protect the interests of the beneficiaries and to ensure that the estate was administered in accordance with the law.

The Supreme Court's decision in Kuitkowski v Tream provides a clear precedent for the removal of administrators who do not recognise the jurisdiction of the Court and fail to administer the estate effectively. The Court's emphasis on the importance of recognising the Court's jurisdiction and fulfilling the duties of administration underscores the need for administrators to act in the best interests of the estate and its beneficiaries. The final orders of the Court included the revocation of the existing grant of administration and the issuance of a new grant to an independent administrator to oversee the estate.

Orders