Re Estate Schutt - [2023] NSWSC 1159

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Schutt [2023] NSWSC 1159
Hearing dates: 25 September 2023
Decision date: 26 September 2023
Jurisdiction: Equity
Before: Lindsay J
Decision:
Order that an application for review of a decision made by a Senior Deputy Registrar in Probate be dismissed with no order as to costs.

Catchwords:
CIVIL PROCEDURE – Registrars – Review of Registrar’s decision under rule 49.19 of the Uniform Civil Procedure Rules 2005 – Claim by executor for management fees and commission – Registrar disallowed the executor’s claim for management fees and allowed the executor’s claim for commission – Registrar’s decision upheld – No orders as to costs

Legislation Cited:
Probate and Administration Act 1898 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Lawteal Pty Ltd v Ofo [2005] NSWSC 984
Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Category: Principal judgment
Parties: Applicant (Executor): Williams Landers Schutt
Respondent (Beneficiary): Margaret Yvonne Mills
Representation:
Counsel:
Applicant: David Robert Legg
Respondent: In person
Solicitors:
Applicant: David Legg, Burridge & Legg
Respondent: Self represented

File Number(s): 2021/00051387

JUDGMENT

INTRODUCTION

Before the Court is a notice of motion filed on 6 June 2023 by the executor of a deceased estate seeking (pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 NSW) a review of a decision made by a Senior Deputy Registrar on 10 May 2023 to disallow a claim for $56,800 made by the executor for “management services” said to have been provided by him to the deceased during her lifetime.
The Registrar’s decision was made in the course of dealing with a notice of motion for the passing of accounts filed by the executor on 6 October 2022, and amended on 10 May 2023, in response to a notice of motion filed (on 10 May 2022) by one of several residuary beneficiaries of the estate of the deceased seeking an order that the executor file and pass his accounts.
The effect of the amendment to the executor’s notice of motion was to allow him to claim commission (under section 86 of the Probate and Administration Act 1898 NSW) despite earlier (in an affidavit sworn on 22 September 2022) having disclaimed any intention to do so.
In accordance with usual practice, an application for review of the Registrar’s decision having been made, she provided to the Court and the parties a “Report to Court” (dated 18 July 2023) which provided formal reasons for her decision.
As the Registrar’s Report explains, although she disallowed $56,800 of the sum (of $64,400) claimed by the executor for “management fees”, she allowed him commission of $15,000.
No challenge has been made to the Registrar’s decision to allow commission in favour of the executor.
Nevertheless, the Registrar’s Report includes the following statement:

“Although there is no specific review on the issue of commission [the Report addresses] the commission order as the exercise of discretion in relation to commission in this matter (both for executor in allowing commission and for the benefit…

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: [2023] NSWSC 1159
Decision Date: 26 September 2023

CaseChat Overview and Summary

The matter before the court involved an executor, who was seeking management fees and commission from the estate of a deceased person. The executor had filed a claim with the court, but the Registrar had disallowed the claim for management fees while allowing the claim for commission. The executor sought a review of the Registrar's decision under the relevant rule of the Uniform Civil Procedure Rules 2005. The court was required to determine whether the Registrar had correctly exercised their discretion in disallowing the management fees and allowing the commission.

The court examined the evidence and arguments presented by both parties and considered the applicable legal principles. The court noted that the executor had not provided sufficient evidence to justify the management fees claimed. The court found that the Registrar had correctly disallowed the claim for management fees. Regarding the commission, the court found that the executor had provided adequate evidence to support the claim, and the Registrar had correctly allowed it. The court held that the Registrar's decision was within their discretion and was not subject to review.

As a result, the court upheld the Registrar's decision. The executor's claim for management fees was dismissed, and the claim for commission was allowed. The court made no orders as to costs. The executor's application for review of the Registrar's decision was dismissed in its entirety.

Orders