Pacella v Sherborne

[2009] WASC 58

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PACELLA -v- SHERBORNE [2009] WASC 58

CORAM:   MASTER SANDERSON

HEARD:   5 MARCH 2009

DELIVERED          :   19 MARCH 2009

FILE NO/S:   CIV 2496 of 2008

BETWEEN:   EMIDIO VINCENZO PACELLA

Plaintiff

AND

MARY ELISE SHERBORNE
Defendant

Catchwords:

Practice and procedure - Beneficiary of estate seeking direction under s 45 of Administration Act - Whether or not beneficiary can apply under section

Legislation:

Nil

Result:

Application to strike out for want of jurisdiction dismissed

Category:    A

Representation:

Counsel:

Plaintiff:     Mr M S Macdonald

Defendant:     Mr A P Hershowitz

Solicitors:

Plaintiff:     Macdonald Rudder

Defendant:     Paiker & Overmeire

Case(s) referred to in judgment(s):

Hudson v Gray (1927) 39 CLR 473

In re Giles; Real and Personal Advance Co v Michell (1890) 43 Ch D 391

1. MASTER SANDERSON: The plaintiff is a beneficiary under the will of the late Edda Bernadette Pacella. The defendant is the executor of the deceased estate. The plaintiff says there are difficulties in understanding the will. As a result, the plaintiff has issued an originating summons seeking directions from the court as to the proper interpretation of the will and seeking consequent directions as to how the defendant, as executor, should administer the estate. The plaintiff purports to bring the application under s 45 of the Administration Act 1903 (WA).

2. The defendant has applied to strike out the originating summons. She claims there is a want of jurisdiction. She says that s 45 of the Administration Act does not authorise a beneficiary to seek directions from the court as to the administration of the estate. What is not raised by this application is the question of whether an originating summons procedure is appropriate, or whether the matters the plaintiff would have the court determine can be the subject of a direction by the court. What I am asked to determine is a simple matter of jurisdiction - is s 45 of the Administration Act available to the plaintiff in the circumstances of this case.

3. Section 45 appears under the heading 'Court may settle all questions arising in administration'. The section reads:

   (1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

   (2)Such order shall bind all persons whether sui juris or not.

   (3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.

4. In support of its application, the defendant raises two main arguments. The first, it is said that administration proceedings, which include an application under s 45 of the Administration Act, are designed to deal with problems arising within the administration of the estate and are not to be used in actions between the estate…