Rada v Public Trustee Re Estate of Lansky

[2005] NSWSC 1370

CITATION:	Rada v Public Trustee Re Estate of Lansky [2005] NSWSC 1370
HEARING DATE(S):	31 October 2005
JUDGMENT DATE :	31 October 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Remuneration and cost of administrator pendente lite be paid out of the estate

CATCHWORDS:	WILL PROBATE AND ADMINISTRATION - remuneration and costs of special administrator - whether costs of appointment of administrator pendente ite be paid by the unsuccessful party - remuneration and costs to be paid out of the estate
LEGISLATION CITED:	Wills Probate and Administration Act 1898 s73
CASES CITED:	Fisher v Fisher (1878) 4 PD 271 Foord v Brock [2005] NSWCA 156 Graham v Kaler (unreported Young J, 17 July 1991) Howlett v Howlett [1950] P 177 Re Carol Ryman v Public Trustee (unreported Holland J, 12 November 1979) Re Levy [1953] VLR 652
PARTIES:	Alena Rada (First Plaintiff) Peter Wills (Second Plaintiff) The Public Trustee (First Defendant) Viera Scheibner (Second Defendant) Michael O'Dowd (Third Defendant)
FILE NUMBER(S):	SC 118101/03
COUNSEL:	Mr S Benson (Plaintiffs) G N McGrath (First Defendant) In person (Second Defendant) No appearance (Third Defendant)
SOLICITORS:	Gells Lawyers (Plaintiffs) The Public Trustee (First Defendant) In person (Second Defendant) No appearance (Third Defendant)

LOWER COURT JURISDICTION:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

MONDAY 31 OCTOBER 2005

118101/03 ALENA RADA & ORS v THE PUBLIC TRUSTEE & ORS THE ESTATE OF PETER JOSEPH SOJAK LANSKY

JUDGMENT

1 HIS HONOUR: This is an application by Mr Geoffrey McDonald for remuneration and costs, he having been appointed as administrator pendente lite of the estate of Peter Joseph Sojak Lansky on 27 October 2003 with (a) power to obtain possession or (b) entrust to a third party or (c) otherwise secure and (d) insure the said property, including artworks. Under that order, the issue of entitlement to remuneration was reserved. The costs of the motion for appointment were costs in the cause.

2 The original action in which the appointment of a special administrator was made was 111008/03. The plaintiffs in that action propounded a document dated 20 August 2002 as the last will of the deceased. The first defendant, Dr Scheibner, alleged that the will was a forgery and cross-claimed for a grant of a will dated 24 October 1975 which appointed the Public Trustee executor and gave the whole of the estate to Dr Scheibner. The Public Trustee renounced probate of that document.

3 While there is considerable evidence which would lead one to believe that the plaintiffs or one of the plaintiffs in the original proceedings had been charged with forgery, that has not turned out to be the position. There is no doubt that the special administrator was aware of the allegation of forgery made. The fact is, however, that the proceedings in which he was appointed as special administrator remained on foot until they were discontinued on 4 November 2004 pursuant to leave given.

4 The question of costs on the statement of claim, presumably therefore the claim for probate of the 2002 document, was reserved. Nothing appears to have happened to the cross-claim but, subsequently, Mrs Scheibner obtained a grant of letters of administration with the will annexed, the grant being dated 2 June 2005.

5 Section 73 of the Wills Probate and Administration Act 1898 gives power to the court to make such an order for the remuneration of the administrator out of the estate as it may think right.

6 It is accepted by counsel for the administrator that his appointment came to an end when the proceedings were discontinued. I will not go into that further, although as the proceedings were not dismissed and the cross-claim seems to have remained in abeyance, it might have been possible to make some argument about this but none has been put forward and I proceed on that basis; that does not mean that entitlement to remuneration was immediately shut off on that date. The administrator would have been entitled to take whatever administrative actions were necessary to close his file and to bring the administration to an end. Apart from anything else, if he had obtained possession of or control over assets, some action would be necessary to transfer those assets to some persons who became entitled to them. Dr Scheibner did not become entitled to them until she got a grant. Thus, while I accept that, in general, work ceased, so far as obtaining possession of the documents or securing them when the proceedings were discontinued, whatever the administrator needed to do to keep them secure until somebody obtained a right to them seems to me to be incidental to his appointment.

7 An argument was put forward by counsel for Dr Scheibner that it was the duty of the administrator to bring the matter back before the court when he became aware of the views of the police investigating the claim for that the will was a forgery and became aware of a certificate from a police examiner of documents to that effect. What is said is that there was some duty to bring the matter back before the court to obtain directions as to what further action was required. I do not accept that to be the position on the facts of this case, neither should I say are the authorities such as Re: Levy 1953 VLR 652, Re: Carol Ryman v Public Trustee, unreported Holland J, 12 November 1979, and Graham v Kaler, unreported Young J, 17 July 1991, relevant to that question, even by analogy as was put forward.

8 The final argument of counsel for the respondent was that the court in its exercise of its discretion should not make an order for payment and remuneration out of the estate because the litigation which brought about the appointment had been caused by the plaintiffs in that litigation who subsequently discontinued it; that was the decision in Fisher v Fisher (1878) 4 PD 271, where the costs of the administration were put at the feet of the unsuccessful party. That does not seem to me to be a reason for not making an order for the costs to be paid out of the estate. If Dr Scheibner wishes to bring an application that her costs of the discontinued proceedings be paid by the plaintiffs to those proceedings, as would normally follow, and if she wishes to make an application that the costs relevant to the special administration be paid by those unsuccessful plaintiffs, then she can do so, and the orders which I propose to make will in no way bear upon her right to do so.

9 The effect of the Fisher v Fisher and the other cases referred to by Mr McGrath; namely, Howlett v Howlett P 177, are to the same effect that an unsuccessful party will in some cases bear the additional costs "thrown on the estate by the appointment of an administrator pendente lite." This in no way determines that the costs should not, so far as the special administrator is concerned, be borne by the estate. I should add that order 3 in Foord v Brock [2005] NSWCA 156 supports that conclusion.

10 The claim in the notice of motion in paragraph 3 is that the administrator's costs and fees and expenses be assessed and be a first charge against the assets of the estate. Without future information, I do not think that the court can decide that there should be a first charge, but I can see no basis on which the court should not decide that they should be a charge against the assets of estate, namely, payable before any distribution of any assets to any beneficiary and I would propose to so order.

11 It is not the task of the judge to determine the fees nor to determine the fees which are claimed, that is a question appropriate for the Registrar. Nevertheless, I am of the view that when the court appoints a chartered accountant as special administrator it does so on the basis that accountants as a matter of course make their charges for remuneration on a time basis and I am, therefore, prepared to make an order that the Registrar proceed to fix the remuneration on that basis, he being left the task of determining whether the rates for the administrator himself and his employees are proper rates on an hourly basis fixed on an hourly basis. It will also be necessary for a more explanatory bill or account for remuneration to be prepared and, as I understand it, that is accepted by the special administrator.

12 So far as the costs of this application are concerned, the application was that the costs of the motion be paid out of the assets of the estate; that being the application, that is an order which I would make.

13 Note counsel will endeavour to agree on orders in which case they can be forwarded to me with their signatures. If agreement is not reached, then the matter can be relisted at 9.30 one morning next week by arrangement with my associate with any short argument as to orders.

**********