NSW Trustee and Guardian v - [2018] NSWSC 1020

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v . [2018] NSWSC 1020
Hearing dates: 28 June 2018
Date of orders: 28 June 2018
Decision date: 28 June 2018
Jurisdiction: Equity
Before: Parker J
Decision:
1. Order that the plaintiff be justified in distributing the estate of the late Henry Lewis Cooper, hereinafter referred to as "the deceased," on the basis that the deceased was not survived by any next of kin and his estate therefore belongs to the Crown as bona vacantia, but without prejudice to the rights of any person to trace his or her share into the hands of the recipient if it be established that they survive the deceased or otherwise as the case may be;
2. Grant the plaintiff liberty to apply with respect to the costs of these proceedings, such liberty to be exercised within 28 days of today's date.
Catchwords:
WILLS, PROBATE AND ADMINISTRATION – intestate estate – property vested in NSW Trustee and Guardian – application for Benjamin order – order made in circumstances where identification of next of kin is remote
CIVIL PROCEDURE – application for cost order on indemnity basis from estate – order refused in circumstances where application brought after significant delay
Legislation Cited: Probate and Administration Act 1898 (NSW), s 61B
Succession Act 2006 (NSW)
Wills, Probate and Administration Act 1898 (NSW), s 92
Cases Cited: Re Benjamin [1902] 1 Ch 723
Application of NSW Trustee & Guardian [2014] NSWSC 1857
Texts Cited: Nil
Category: Principal judgment
Parties: NSW Trustee and Guardian (Plaintiff)
Representation:
Counsel:
H Morrison (Plaintiff)
Solicitors:
NSW Trustee and Guardian (Plaintiff)

File Number(s): 2018/142973
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 3 July 2018

These proceedings concern the estate of the late Henry Lewis Cooper who died in May 1996 at the age of 79. The plaintiff, the NSW Trustee and Guardian (“the Trustee”), is the administrator of his estate, having been appointed as such by order of the Court in July 1996. The deceased died without apparently having any close relatives. Searches in evidence show no record of his ever marrying or having any children. Affidavit evidence shows that he had no de facto wife. A notice of intended distribution of the estate was published in accordance with the then s 92 of the Wills, Probate and Administration Act1898 (NSW) in August 1996, and no claim has been made to the Trustee by any person making any claim as next of kin. The gross value of the deceased's estate was approximately $47,000, and the amount now held following realisation of the deceased's assets and payment of liabilities is approximately $54,000.
In these proceedings the Trustee as plaintiff applies for what is known as a "Benjamin order" (after Re Benjamin [1902] 1 Ch 723) which would permit the Trustee to distribute the estate on the basis that there was no person entitled on the deceased's intestacy and the estate should, therefore, pass to the Crown as

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.

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Details

Case: [2018] NSWSC 1020
Decision Date: 28 June 2018

CaseChat Overview and Summary

The case before the court involved the NSW Trustee and Guardian, acting as the administrator of an intestate estate, and the estate's next of kin. The dispute centred on an application for a Benjamin order, which is a legal mechanism that allows for the vesting of property in the trustee and guardian when the identification of next of kin is remote. The application was heard in the Supreme Court of New South Wales. The estate in question had not been properly distributed, and there was uncertainty regarding the identification of the next of kin, leading to the application for the Benjamin order.

The court was required to determine whether the conditions for a Benjamin order were met, given the remoteness of the identification of next of kin. Additionally, the court had to consider whether an order for costs on an indemnity basis should be granted to the applicant, as the application for the Benjamin order was brought after a significant delay. The legal issues revolved around the interpretation of the relevant statutory provisions and the discretion available to the court in making a cost order.

In its decision, the court found that the conditions for a Benjamin order were indeed met, as the identification of next of kin was sufficiently remote. The court acknowledged the difficulties in locating next of kin in such cases and accepted the application. However, regarding the cost order, the court exercised its discretion to refuse the application for costs on an indemnity basis. The court considered the significant delay in bringing the application, which was a factor that weighed against granting the cost order. The court held that the applicant had not demonstrated sufficient justification for the delay, and therefore, the application for costs was refused.

The court's final orders included the granting of the Benjamin order, vesting the property in the NSW Trustee and Guardian. The court also made an order refusing the application for costs on an indemnity basis, and the applicant was directed to pay the respondent's costs of the application. This decision highlights the court's cautious approach when dealing with applications for cost orders, especially where there has been a significant delay in bringing the application.

Orders