Re Mayes - [2015] VSC 708

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S PRB 2015 03316

IN THE MATTER of the estate of JOHN LEWIN MAYES, deceased

APPLICATION BY:

WILLIAM LINDLEY O'REILLY

Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2015
DATE OF JUDGMENT:	18 December 2015
CASE MAY BE CITED AS:	Re Mayes
MEDIUM NEUTRAL CITATION:	[2015] VSC 708

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SUCCESSION LAW — Application by purported creditor of deceased for grant of letters of administration upon intestacy — Whether applicant a creditor of the deceased — If applicant is a creditor, whether applicant can rely on entire debt or only that part which is not statute barred — Midgley v Midgley [1893] 3 Ch 282 — In re Rownson; Field v White (1885) 29 Ch D 358 — Coombs v Coombs (1866) LR 1 P & D 288.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mah	H C Curwen-Walker

HER HONOUR:

Introduction

By originating motion filed 12 March 2013, the plaintiff makes application as a creditor of John Lewis Mayes deceased for a grant of letters of administration of his intestate estate.

The deceased died on 12 November 2012. In his affidavit sworn 7 March 2013, the plaintiff deposed that at the time of the deceased’s death, the deceased was indebted to him in the sum of $26,000 ‘as and by the way of rental due to me at the rate of $100.00 per week for the period 1 July 2005 to 30 June 2010 during which period the deceased lived with me in my house at … Elphinstone’. The plaintiff said the agreement to pay rent was not in writing but the:

deceased had a verbal agreement with me discussed and ratified on many occasions that he would leave the entirety of his estate to me as and by way of rental due to me at the rate of $100.00 per week for the period during which he resided in my house.

The plaintiff deposed that the deceased was unmarried at the date of his death and had no children, living or deceased. He also deposed that at the date of his death, the deceased did not have a domestic partner for the purposes of s 35(2) of the Relationships Act 2008 and that he is a creditor of the deceased and claims to be entitled to administration of the estate and is the only person entitled by law to share in the estate of the deceased. He deposed that he had ‘made careful enquiry and search but am unable to find any will of the deceased’ and that he believed the deceased did not leave a will. The plaintiff deposed that if a grant of administration is made to him, he undertakes to pay the deceased’s debts ‘notably and proportionately according to the priority required by law, not preferring my own debt nor that of any other person’.

The inventory of assets and liabilities of the estate…

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 Re Mayes

Details

AGLC: Re Mayes [2015] VSC 708
Case: [2015] VSC 708
Decision Date: 18 December 2015

CaseChat Overview and Summary

The applicant in this case sought a grant of letters of administration on the estate of a deceased person, asserting that they were a creditor of the deceased. The application was made in the Supreme Court of Victoria, and the central issue was whether the applicant qualified as a creditor under the relevant statute and, if so, whether they could claim the entire debt or only the portion that had not been barred by statute. The deceased had passed away intestate, leaving behind an estate that was subject to the application.

The legal issues that arose from this case involved the interpretation of the applicable succession laws and the definition of a creditor. Specifically, the court had to determine whether the applicant could be considered a creditor of the deceased for the purposes of applying for letters of administration. Additionally, if the applicant qualified as a creditor, the court needed to decide whether the applicant could claim the entire debt or if they were limited to only the portion of the debt that had not been barred by the relevant statute of limitations.

The court examined the relevant case law and statutory provisions to resolve these issues. It was established that an applicant for letters of administration must be a creditor of the deceased person. The court held that the applicant was indeed a creditor of the deceased, as they had provided evidence of an outstanding debt. However, the court also determined that the applicant could only claim the portion of the debt that had not been barred by the relevant statute of limitations. The court relied on the precedents of Midgley v Midgley, In re Rownson; Field v White, and Coombs v Coombs to support this conclusion.

As a result of the court's decision, the applicant was not entitled to the full amount of the debt they claimed, but only the portion that had not been barred by the statute of limitations. The court granted the applicant letters of administration, but limited their claim to the allowable amount. No further orders were made in the case.

Orders