Low v Hunt - [2025] VSC 80

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2024 00425

IN THE MATTER of the estate of PHILIP RAYMOND FLINN, deceased

-and-

IN THE MATTER of 34(1)(c) of the Administration and Probate Act 1958 and ss 48(1) and 55 of the Trustee Act 1958

BETWEEN:

JENNIFER ELIZABETH LOW (in her capacity as trustee of the bankrupt Estate of Jeannette Helen Hunt)	Plaintiff
v
JEANNETTE HELEN HUNT (in her capacity as administrator of the estate of Philip Raymond Flinn, deceased)	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 November 2024, 18 December 2024 and written submissions of 17 January 2025 and 31 January 2025
DATE OF JUDGMENT:	6 March 2025
CASE MAY BE CITED AS:	Low v Hunt
MEDIUM NEUTRAL CITATION:	[2025] VSC 80

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ADMINISTRATION AND PROBATE – Application by bankruptcy trustee to remove administrator – Whether defendant has failed to fulfil duties as administrator – Dispute between plaintiff, as bankruptcy trustee of the defendant, and the defendant, in her personal capacity, as to payment of bankruptcy costs – Deceased’s estate not subject to bankruptcy – Trustee in bankruptcy standing in shoes of the bankrupt beneficiary – Whether the Trusts, Equity and Probate List is the proper forum for the real issues in dispute – Administration and Probate Act 1958 s 34(1)(c) – Trustee Act 1958 s 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B Ridgeway on 7 November 2024 N Baum on 18 December 2024	Harris Carlson Lawyers
The Defendant in person via Audiovisual link	-	-

HER HONOUR:

A Introduction

Jeanette Hunt (Hunt) is the administrator of the estate of her late husband, Philip Flinn, who died intestate on 23 June 2018. Hunt is the sole beneficiary of Philip’s estate.
On 18 January 2021, Hunt, in her personal capacity, filed a debtor’s petition for bankruptcy owing debts of $19,263. Subsequently, on 26 April 2022, Jennifer Low (Low) was appointed trustee of the bankrupt estate of Hunt.
On 1 February 2024, following an ongoing dispute between the parties, Low filed an originating motion seeking orders pursuant to s 34(1)(c) of the Administration and Probate Act 1958 (the Act), removing Hunt as administrator of the deceased’s estate and the appointment of Low, or alternatively such person as the Court sees fit, as administrator and trustee of the deceased’s estate (the application). The dispute concerns Hunt’s failure to fully administer the estate by distributing assets to herself as sole beneficiary.
The application was listed for hearing on 7 November 2024. On that day, Low was represented by counsel. Hunt, who lives in Shepparton, did not travel to appear in person and observed the hearing by video-link. Hunt did not seek to appear or participate in the hearing.

B The facts

Hunt was born on 2 September 1969. Some time before November 2017, she and her late husband, Philip, relocated from the United Kingdom. They lived at 5 Cheshire…

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 Low v Hunt

Details

AGLC: Low v Hunt [2025] VSC 80
Case: [2025] VSC 80
Decision Date: 6 March 2025

CaseChat Overview and Summary

The parties involved in this case are Low, the plaintiff and bankruptcy trustee, and Hunt, the defendant in both her personal capacity and as the administrator of her deceased father’s estate. The dispute revolves around the defendant's failure to fulfil her duties as an administrator and the subsequent payment of bankruptcy costs. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the defendant had indeed failed to meet her obligations as an administrator and whether the deceased's estate was subject to bankruptcy. Additionally, the court needed to decide if the plaintiff, as the trustee in bankruptcy, could stand in the shoes of the bankrupt beneficiary, and whether the Trusts, Equity and Probate List was the appropriate forum for the issues at hand. Relevant statutes included sections 34(1)(c) of the Administration and Probate Act 1958 and section 48 of the Trustee Act 1958.

In its judgment, the court found that the deceased's estate was not subject to bankruptcy and that the defendant had failed to discharge her duties as an administrator. The court determined that the plaintiff, as the trustee in bankruptcy, could indeed stand in the shoes of the bankrupt beneficiary. Furthermore, the court ruled that the Trusts, Equity and Probate List was not the appropriate forum for the real issues in dispute. The plaintiff's application to remove the defendant as administrator was dismissed.

As a result of the court's decision, the defendant remained the administrator of her deceased father's estate. The plaintiff's application to remove the defendant as administrator was dismissed, and the court found that the deceased's estate was not subject to bankruptcy. The plaintiff, as the trustee in bankruptcy, could stand in the shoes of the bankrupt beneficiary. The court clarified that the Trusts, Equity and Probate List was not the appropriate forum for the real issues in dispute.

Orders