Lea v Lea

[2024] NSWSC 1587

Supreme Court

New South Wales

Medium Neutral Citation:

Lea v Lea [2024] NSWSC 1587

Hearing dates:

6 December 2024

Date of orders:

6 December 2024

Decision date:

06 December 2024

Jurisdiction:

Equity – Probate and Family Provision List – Family Provision

Before:

Meek J

Decision:

Orders made for the revocation of the grant of probate to the first defendant, the appointment of an independent administrator, the joinder of the administrator to the proceedings and an interim distribution to the plaintiff. Other ancillary orders also made.

Catchwords:

SUCCESSION — Administration of estates — By her statement of claim, the plaintiff claims that the assets of the deceased’s estate are held on constructive trust for the plaintiff and the first defendant executor, with alternative claims for damages or a family provision order — Claims also made for sums alleged to be owing to the estate from the second defendant trustee — Application for the first defendant’s grant of probate to be revoked and an independent administrator to be appointed — First defendant executor consented on without admissions basis to the revocation of his grant and the appointment of an independent administrator — Identity of appropriate independent administrator discussed — Orders made for revocation of grant and appointment of independent administrator

SUCCESSION — Representative orders — Whether the first defendant should be appointed to represent the estate in the defence of the proceedings pursuant to r 7.10(2)(b) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), in circumstances where he is the only person with personal knowledge relevant to the issues in dispute — Whether UCPR r 7.10 was applicable in circumstances where the independent administrator would be joined to the proceedings — UCPR r 7.10(2)(b) order not made

SUCCESSION — Administration of estates — Interim distributions — Whether the plaintiff should receive interim distribution from sources which could more promptly realise funds than a property in Kensington which the plaintiff was bequeathed under the Will — Discussion of necessity for independent administrator to also have some cash available — Orders made for interim distribution in accordance with regime agreed between the parties

COSTS — Interlocutory applications — Whether the first defendant executor should pay the plaintiff’s costs of the application personally, in circumstances where the first defendant failed to put on evidence or indicate his position on the relief sought on the plaintiff’s application until effectively the day before the hearing, only to substantially concede (on a without admissions basis) to the primary relief sought — Where the plaintiff’s legal representatives had incurred costs in preparing for a fully-contested hearing on the relief sought, including the preparation of a court book and submissions — Held that the first defendant executor pay the plaintiff’s costs of the application incurred over the period specified personally

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

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