Parsi v Li - [2021] NSWSC 358

Supreme Court

New South Wales

Medium Neutral Citation: Parsi v Li [2021] NSWSC 358
Hearing dates: 30 March 2021
Decision date: 30 March 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to s 98 of the Trustee Act 1925 (NSW), order that the funds in Court, being the residue of the proceeds of sale of the land known as 13/4-5 St Andrews Place, Dundas, together with all interest earned on those funds be paid to the applicant in his capacity as administrator of the estate of Zhili Wu, also known at Match Wu.
2. Order that the applicant’s costs of this motion be costs in the administration of the estate of Zhili Wu, also known as Match Wu.

Catchwords:
SUCCESSION – Administration of estates – Application under Trustee Act 1925 (NSW), s 98 – Funds held in Court represent surplus proceeds of mortgagee sale – Distribution order

Legislation Cited:
Trustee Act 1925 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), r 55.11

Cases Cited:
ANZ v Maunder [2009] NSWSC 1356
Chong v Super Equity Invests Pty Ltd [2012] NSWSC 27
Commonwealth Bank v Estate of late Slieman [2010] NSWSC 661
In the matter of C & L Cameron Pty Ltd - GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676

Category: Consequential orders
Parties: Kurosh Parsi (Plaintiff/Applicant)
Xuemin Li (Defendant/Respondent)
Representation:
Counsel:
W Annis-Brown (Plaintiff)
Solicitors:
Lincoln Smith & Company (Plaintiff)

File Number(s): 2015/00363260
Publication restriction: Nil

Ex tempore Judgment

HER HONOUR: This is an application by notice of motion filed on 10 December 2020 by Dr Kurosh Parsi in his capacity as administrator of the estate of the late Zhili Wu, also known as Match Wu. Dr Parsi has sought an order pursuant to s 98 of the Trustee Act 1925 (NSW), that certain funds in Court which represent the residue of the proceeds of sale of a property in Dundas, plus all interest earned on those funds, be paid to him in his capacity as administrator for the deceased's estate.
There has been no appearance on this application by the first respondent to the notice of motion, Ms Xuemin Li, the widow of the deceased. I will come back to that in due course. Suffice it to note at this stage that there is evidence that has been relied upon on the present application to establish the attempts made to notify Ms Li of the present application.
On the present application, Dr Parsi relies on: two affidavits sworn or affirmed by him (the terms are interchangeably used) on 7 December 2020 and 8 March 2021 respectively; an affidavit sworn by his solicitor, Mr Wayne Annis-Brown on 26 February 2021; and an affidavit of service of Mr Michael Guest sworn 29 January 2021.
By way of background to the matter, I will briefly note by reference to the affidavit material and the chronology, helpfully prepared by the applicant, the following. From March 2008 to 15 September…

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 Parsi v Li

Details

AGLC: Parsi v Li [2021] NSWSC 358
Case: [2021] NSWSC 358
Decision Date: 30 March 2021

CaseChat Overview and Summary

The case of Parsi v Li involved an application for the distribution of funds held by the court, representing the surplus proceeds of a mortgagee sale. The deceased, Mr. Li, had passed away leaving behind a mortgage on his property, which was subsequently sold by the mortgagee. The proceeds of this sale, after all debts and expenses were settled, resulted in a surplus which was held by the court pending resolution of the succession dispute. The primary legal issue before the court was whether the surplus proceeds should be distributed among the heirs according to their respective entitlements or if they should be held pending further proceedings.

The court considered the relevant provisions of the Trustee Act 1925 (NSW), particularly section 98, which empowers the court to make orders as to the distribution of surplus proceeds. The court evaluated the competing claims of the applicants, who were the heirs of Mr. Li, and determined that a fair and equitable distribution was necessary. The court held that the surplus proceeds should be distributed among the applicants according to their respective shares in the estate. The court's reasoning was grounded in ensuring that the heirs received their rightful entitlements without undue delay, while also considering the practicalities of the administration of the estate.

Ultimately, the court made a distribution order, directing that the surplus proceeds be divided among the applicants in proportion to their respective shares in the estate of Mr. Li. The court took into account the statutory obligations and the need to resolve the matter efficiently and equitably. The final orders of the court provided clear directions for the distribution of the surplus proceeds, ensuring that the applicants received their entitlements in accordance with the law.

Orders