Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney (No. 2)

[2013] NSWSC 1566

Supreme Court

New South Wales

Medium Neutral Citation:

Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney (No. 2) [2013] NSWSC 1566

Hearing dates:

25 October 2013

Decision date:

25 October 2013

Jurisdiction:

Equity Division

Before:

Slattery J

Decision:

The NSW Trustee and Guardian appointed as the administrator of the Deceased's estate. Jessica Hilaney and Helen Peipi to receive respectively 65 per cent and 35 per cent of the Deceased's estate and notional estate, inclusive of their costs.

Catchwords:

SUCCESSION - family provision - argument as to the form of final orders - Helen Peipi awarded a statutory legacy as a de facto spouse of the deceased - Jessica Hilaney successful on her family provision claim as the deceased's daughter - main asset of the estate is a property in which the deceased and Ms Peipi lived - Ms Peipi desires to live in the property - whether the NSW Trustee and Guardian should be appointed as administrator of the estate - whether an independent person to act at no fee proposed by Jessica's mother should be appointed - Ms Peipi agrees to the appointment of this independent administrator if she receives a first option to buy the property at valuation - whether such an option might restrict the administrator's efforts to maximise the value of the estate by auction.

Legislation Cited:

NSW Trustee and Guardian Act 2009, s 22
Succession Act 2006, ss 59, 113

Cases Cited:

Crouch v Zelichowski [2002] NSWSC 681
Luciano v Rosenblum (1985) 2 NSWLR 65
Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520

Category:

Consequential orders

Parties:

2011/194248 - In The Estate of the late Ashoor Hilaney:
A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney

2011/228231 - The Estate of the late Ashoor Hilaney
P:- Ms Peipi
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney

2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi

Representation:

2011/194248 - The Estate of the late Ashoor Hilaney: A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - R. O’Neill2011/228231 - The Estate of the late Ashoor Hilaney
P:- Ms Peipi - T. Catanzariti
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - R. O’Neill
2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi - T. Catanzariti
Solicitors:
2011/194248 - The Estate of the late Ashoor Hilaney:
A:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - Ms Caroline Hutchison, Coleman Greig Lawyers

2011/228231 - The Estate of the late Ashoor Hilaney
P:- Ms Peipi - Lee Hagipantelis, Brydens Law Office LP
D:- Domenica Mirarchi as guardian of Jessica Rosemary Hilaney - Ms Caroline Hutchison, Coleman Greig Lawyers

2012/91609 - Ms Peipi v Ms Peipi as Administrator of the Estate of the late Ashoor Hilaney
P:- Ms Peipi - Lee Hagipantelis, Brydens Law Office LP

File Number(s):

2011/194248; 2011/228231; 2012/91609

Publication restriction:

No

EX TEMPORE Judgment

1. This is my second judgment in these proceedings. The Court's first judgment held Helen Peipi to be the deceased's de facto spouse for two years before his death and entitled to a statutory legacy under Succession Act 2006, s 113, but the deceased's daughter, Jessica, succeeded in her Succession Act, s 59 claim for family provision: Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520. In the first judgment the Court awarded Jessica on her claim for family provision, 65 per cent of the estate on an all inclusive of costs basis. This judgment should be read with the Court's first judgment. Events, persons and thing are referred to in the same way in both judgments.

1. The Court proposed that the NSW Trustee and Guardian be appointed as administrator of the estate under the NSW Trustee and Guardian Act 2009, s 22:-

"22 Grant of probate or administration to NSW Trustee

(1) The Supreme Court may grant:

(a) probate of a will, or

(b) administration of any estate (whether for general, limited or special purposes),

to the NSW Trustee.

(2) This section does not limit the generality of the powers or other functions of the Supreme Court or the NSW Trustee. "

1. The proceedings were listed today for final argument about the form of orders. Orders have now been made in three of the four sets of proceedings. It has been noted that in the proceedings the estate brought against Johnson Hilaney that orders were made on 17 January this year. The proceedings brought by Helen Peipi will be dismissed with no order as to costs. The proceedings brought by Jenny Khina will be dismissed. The Court's remaining final orders are now to be made in the proceedings brought by Ms Mirarchi as tutor for Jessica.

1. The parties are largely agreed about the form of orders to reflect the Court's reasons for judgment. But they have one issue between them which has two connected parts. Ms Mirarchi proposes, in accordance with the Court's orders, that the NSW Trustee and Guardian be appointed as administrator of the estate. But Ms Mirarchi has also managed to find two persons, Ms Jenny Komsic and Mr Steven Peroni, who are prepared to act as administrators of the estate on a pro bono basis. The fact that members of the community are prepared to do that in such circumstances is much to be commended. On the other hand, Ms Peipi submits that she is only prepared to accept the appointment of such persons if she is afforded a first option to buy the Palmerston Road property at a price to be determined by a registered valuer agreed between the parties and, if not agreed, to be nominated by the President of the Australian Property Institute.

1. No shadow is cast over the independence or integrity of the two volunteer potential administrators, one of whom I am aware from the material before me is a solicitor. But the fact that they have been nominated by Ms Mirarchi makes, perhaps not surprisingly, Ms Peipi unwilling to accept their nomination as administrators without some additional conditions of the kind that Ms Peipi now seeks. Given the observations I have already made in my principal judgment about the parties such a reaction is understandable.

1. So the Court is faced with these competing contentions. Ms Mirarchi seeks the appointment of Ms Komsic or Mr Peroni but without any special conditions fettering the exercise of their discretion as administrators; and, in default, she seeks the appointment of the NSW Trustee and Guardian. Ms Peipi is only prepared to accept their appointment on the terms indicated, giving her an option to purchase after a valuation. The default position in the absence of agreement or court order is that the appropriate administrator of this estate is the NSW Trustee and Guardian.

1. I have reached the view that the Court should appoint the NSW Trustee and Guardian as administrator of the estate, as the Court foreshadowed in in the principal judgment. To do otherwise seems to create an unacceptable position for one or other party. First, I am not prepared to appoint Ms Komsic or Mr Peroni, economical though their services may be, to act as administrators, in circumstances where their appointment is not agreed by Ms Peipi. She is only prepared to agree upon terms that the Court ultimately finds not to be acceptable. But that means that she still does not agree. The Court's principal judgment contemplated the parties might be able to agree upon an alternative administrator to the NSW Trustee and Guardian. But as much difficulty seems to me to be presented by the appointment of a person nominated by one or other of these parties who is not agreed to by the others, as would be presented by the appointment of either Ms Mirarchi or Ms Peipi as administrator. But equally I am not prepared to make an appointment of Ms Komsic or Mr Peroni upon the terms that Ms Catanzariti is putting on behalf of Ms Peipi.

1. Persuasive though Ms Catanzariti's arguments have been, it seems to me they come up against one major obstacle. If I were to appoint Ms Komsic or Mr Peroni upon the terms sought, however the orders are crafted, given Ms Mirarchi's opposition to Ms Peipi having a right to first option to purchase the Fairfield property I would have to order, over Mr O'Neill's submissions, that the administrator be required to appoint either a registered valuer to permit Ms Peipi to have the benefit of the first option that she seeks. To force the administrator to do this seems to me to preclude the possibility of the administrator making a choice for example to put the Palmerston Road property up to auction, which may best serve the object of realising the estate to its maximum value.

1. Moreover, if the property is put to auction, Ms Peipi would have an opportunity to bid for it at auction. Ms Peipi's strong motivation, Ms Catanzariti has put to me, for advancing this proposal for an option to purchase is to give her the opportunity of continuing to live in this house. The Court needs no persuasion of the importance in the testamentary intentions of a deceased person in accordance with accepted legal principle that a spouse be provided with a house to live in after the deceased's death. This is regarded as the standard by which family provision claims in this area are judged: Luciano v Rosenblum (1985) 2 NSWLR 65 and Crouch v Zelichowski [2002] NSWSC 681. But I would observe that in this case, with this small estate as my earlier reasons show, that it is not possible for that to be achieved here in accordance with principle.

1. But perhaps something can be said here: something which in my view the administrator to be appointed would be quite entitled to take into account in its administration of the estate. The administrator could well have regard to the desire of Ms Peipi to own the Palmerston Road property in the decisions that the administrator makes with respect to its realisation. But the administrator would be mindful, of course, that the trustee's duty is also to realise the Palmerston Road property in the best interests of the estate as a whole by maximising its value.

1. I will make orders in accordance with the short minutes of order.

Short Minutes of Order

1. In proceedings 2011/228231, I make the following orders:-

(1)   Dismiss the Summons in 2011/228231.

(2)   Note that on the dismissal of proceedings 2011/228231 there will be no order as to costs.

1. In proceedings 2012/91609, I make the following orders:-

(1)   Application dismissed.

(2)   No order as to costs.

1. In proceedings 2011/194248, I make the following orders:-

(1)   Order that the NSW Trustee and Guardian be appointed as the administrator of the estate of the late Ashooor Hilaney ("Deceased").

(2)   The Registrar to issue the grant forthwith.

(3)   Administration bond be dispensed with.

(4) Order that the Plaintiff Jessica Hilaney receive 65 per cent of the Deceased's estate and notional estate inclusive of her costs pursuant to Chapter 3 of the Succession Act, 2006.

(5)   Order that the burden of the provision fall on Helen Peipi so that she is entitled to 35 per cent of the Deceased's estate and notional estate inclusive of her costs.

(6)   Order that the Deceased's superannuation benefits be designated as notional estate.

(7)   No order as to costs with the intent that each party bear their own costs.

(8)   The Summons is otherwise dismissed.

(9)   Liberty to apply in relation to the implantation of these orders.

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Decision last updated: 28 October 2013