Re Estate of Coe - [2013] NSWSC 968

Supreme Court

New South Wales

Medium Neutral Citation: In the Estate of Coe [2013] NSWSC 968
Hearing dates: 15/07/2013
Decision date: 17 July 2013
Jurisdiction: Equity Division - Probate List
Before: Young AJ
Decision:
Order for appointment of administrator ad litem refused. Matter stood over to enable amendment of summons.

Catchwords:
SUCCESSION - probate and letters of administration - grants of probate and letters of administration - limited, special and conditional grants of probate and administration - administration for litigation purposes

ADMINISTRATION ad litem - circumstances in which appointment of administrator ad litem can be made - where no citation of executor - scope of the administration - requirement of administration bond - need for evidence of administrator's independence - grant effective only for the purpose of proceedings within the jurisdiction - proper form of the order
ADMINISTRATION ad litem - nature of administrator's duties - whether fiduciary
Legislation Cited: Fair Trading Act 1987 (NSW)
Australian Securities and Investments Commission Act 2001 (Cth) s 12GF
Corporations Act 2001 (Cth) s 1041I
Probate and Administration Act 1898 (NSW) ss 40, 69, 74, 75, 107
Cases Cited: Watkins v Combes [1921] HCA 24; (1921) 29 CLR 317
Deveigne v Askar (2007) 69 NSWLR 327
Nagel v Hough (1927) 27 SR (NSW) 418; 44 WN (NSW) 121
Davis v Chanter (1848) 2 Ph 545; 41 ER 1054
Maclean v Dawson (1859) 1 Sw & Tr 425; 164 ER 796
Greenway v McKay [1911] HCA 25; (1911) 12 CLR 310
Re Simpson [1936] P 40
Faulkner v Daniel (1843) 3 Hare 199; 67 ER 355
Re O'Connor [1950] VLR 343
Re McGown [1947] VLR 113
Re Byrne [1910] ILTR 98
Re Aylmore [1971] VR 375
Texts Cited: Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales (1st ed, 1996) LBC Information Services, North Ryde
MacDonnell, Sheard and Hull, Probate Practice (3rd ed, 1981) Carswell, Toronto
Category: Procedural and other rulings
Parties: Blairgowrie Trading Ltd (First Plaintiff)
Alan Flitcroft and Chrystine Flitcroft as trustees of the Te Coco Trust (Second Plaintiff)
Representation: Counsel:
W A Edwards (First and Second Plaintiffs)
Solicitors:
Maurice Blackburn (First and Second Plaintiffs)

File Number(s): 2013/191906

Judgment (ex tempore - revised 17 july 2013)

HIS HONOUR: This is an application by a group of people who wish to sue a person who has died, but in respect of whom no grant of administration has been made. The matter is of some urgency as the putative plaintiffs say that the appropriate limitation period expires about 13 August 2013.

The deceased died on 21 January 2013. The plaintiffs in these proceedings seek an order that a person be appointed as administrator ad litem to represent the deceased's estate for the purpose of proceedings intended to be commenced in the Federal Court of Australia.

Exhibit PX01, which I think was meant to be a confidential exhibit, is the proposed statement of claim in the Federal Court of Australia. In essence, it claims compensation for loss allegedly suffered by…

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: [2013] NSWSC 968
Decision Date: 17 July 2013

CaseChat Overview and Summary

The matter before the court involved the estate of a deceased person, with the central issue being the appointment of an administrator ad litem to manage the estate for litigation purposes. The case was heard by the Supreme Court of New South Wales. The primary dispute revolved around whether an administrator ad litem could be appointed without a citation of executor, and if so, what the scope of their authority should be.

The court was required to determine the legal standards for appointing an administrator ad litem in the absence of a cited executor, the necessity of an administration bond, and whether the administrator ad litem held a fiduciary duty. Additionally, the court had to consider the proper form of the order for such an appointment and the extent to which the administrator's duties would be limited.

In its reasoning, the court held that an administrator ad litem could indeed be appointed without a citation of executor, but the grant would be limited to the specific purpose of the litigation within the court's jurisdiction. The court emphasised the importance of ensuring the administrator's independence by requiring evidence of their suitability. The court also concluded that while the administrator ad litem had certain duties, these were not necessarily fiduciary in nature. The court further clarified that the administration bond would be necessary, but it should be tailored to the limited scope of the administrator's role. The form of the order was to explicitly state the limited purpose of the appointment and the boundaries of the administrator's duties.

Orders