McCorquodale v Guth

[2008] NSWSC 1420

CITATION:	McCorquodale v Guth [2008] NSWSC 1420
HEARING DATE(S):	19/12/08
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	19 December 2008
DECISION:	Order that special letters of administration be granted to the plaintiff. Order dispensing applicant from lodging administration bond.
CATCHWORDS:	SUCCESSION [74] [94]- Administration- Whether special letters of administration to enable preservation of assets should be granted- Administrator appointed to represent the estate to commence proceedings in order that assets be preserved- Adminstration bond dispensed with.
CASES CITED:	Re Murphy [1959] VR 717
PARTIES:	Grant Euan McCorquodale (P) Thomas Guth (D)
FILE NUMBER(S):	SC 6297/08
COUNSEL:	A J Grant (P)
SOLICITORS:	Moray & Agnew (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 19 December 2008

6297/08 – McCORQUODALE v GUTH

JUDGMENT

1 HIS HONOUR: This is an application for grant of special letters of administration to enable the plaintiff to preserve the assets of the estate of the late Mark Engelman. Those assets appear mainly to be land in Israel.

2 There is pending before the court at the moment a probate suit where the issue is whether a will made by Mr Engelman in 2007 is his last will or whether, because of alleged incapacity in that year, his last will is a will of 1997. The plaintiff is one of the executors named in the 2007 will. A Mr Guth is the executor named in the 1997 will. It is to the interests of both Mr Guth and the plaintiff to preserve the assets of the estate. Mr Guth has been notified of the application that the plaintiff be appointed administrator to represent the estate so that the assets can be preserved and, whilst he does not consent, he does not oppose it.

3 The way in which the assets will be preserved is for the administrator that is appointed to commence proceedings in this court which perhaps can be heard at the same time as the present probate suit because in that suit the person to be sued has already appeared as a party, so although he lives in Israel he may well be in Australia for that hearing.

4 Accordingly, the application that is made is quite sensible and should be granted.

5 Mr Grant, who appears for the plaintiff, asks that the administration bond be dispensed with. There is authority in Victoria which is referred to on page 808 of Geddes Roland and Studdert's practice that there is no power to dispense with the administration bond in this sort of case, however, the authority for that proposition is Re Murphy [1959] VR 717 and it seems to me to depend on Victorian legislation which we do not have in New South Wales. It is a proper case, seeing that all interested parties are involved, to dispense with the administration bond.

6 Accordingly, I make the orders in the short minutes.

7 I give leave to file the summons in accordance with the document which I have initialled in the probate suit.

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