Re the Estate of John Robert Cowan (Dec);

[2008] WASC 248

RE THE ESTATE OF JOHN ROBERT COWAN (DEC); EX PARTE AVSAR [2008] WASC 248

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 248
Case No:	A:3217/2008	Heard:	23 OCTOBER 2008
Coram:	MASTER SANDERSON	Delivered:	3/11/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	SELIM AVSAR
Catchwords:	Appeal from decision of registrar Probate Refusal of limited grant Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE THE ESTATE OF JOHN ROBERT COWAN (DEC); EX PARTE AVSAR [2008] WASC 248 CORAM : MASTER SANDERSON HEARD : 23 OCTOBER 2008 DELIVERED : 4 NOVEMBER 2008 FILE NO/S : A 3217 of 2008 MATTER : Administration Act 1903 s 35 and s 37; probate or administration for purpose of Family Provision Act 1972 s 7A (s 7 of the Administration Act 1903 amended)

Family Law Act 1975

The Estate of John Robert Cowan formerly of 905/23 Adelaide Street, Fremantle in the State of Western Australia; late of Craigwood Green (Nursing Home), Como WA (Dec)

EX PARTE

SELIM AVSAR
Applicant

Catchwords:

Appeal from decision of registrar - Probate - Refusal of limited grant - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : In person

Solicitors:

Applicant : In person

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 MASTER SANDERSON: By application filed 29 August 2008, Mr Avsar sought an extension of time to appeal from a registrar's decision. When the matter came on for hearing, I advised Mr Avsar that I would grant the extension of time and deal with the appeal. Mr Avsar indicated he had no further material that he wished to lodge.

2 As to the extension of time, it seems clear that the appeal was not entered in time because Mr Avsar was not aware of the court practice. His documents were not in a proper form and were therefore rejected. Given that Mr Avsar appears in person, and is dealing with technical matters, the error has, in my view, been adequately explained and the time ought accordingly be extended.

3 Mr Avsar's application was for a limited grant of letters of administration of the estate of the late John Robert Cowan. The purpose of the limited grant was so Mr Avsar could be substituted as respondent in property settlement proceedings in the Family Court of Western Australia. Mr Avsar also sought to lodge a caveat in relation to the estate.

4 The matter was considered by Registrar Dixon. On 21 August 2008, the learned registrar wrote to Mr Avsar in the following terms:

I advise that a grant in solemn form of letters of administration with the will annexed is being sought in relation to Mr Cowan's estate by Mrs J Binning in Supreme Court action CIV/1308/07 - Binning v Avsar. That matter is listed for hearing on 29 August 2008.

In the circumstances I do not consider it appropriate to make a limited grant of the nature sought by you. It also follows, in my view, that the caveat cannot now be lodged against Mr Cowan's estate pursuant to the Non-Contentious Probate Rules 1967.

I should also point out that even if Mrs Binning's application for letters of administration with the will annexed were not coming on for hearing shortly, I would have reservations about whether, in all the circumstances, it would be appropriate for you to take a limited grant in relation to Mr Cowan's estate. Particularly, I note that your mother, Mrs J P Avsar, appears to be the legal personal representative of Mrs A M Cowan, the wife in the proceedings in the Family Court. I have reservations as to whether it would be appropriate for you to be the personal representative of Mr Cowan, the husband in those proceedings.

In light of the above, I propose dismissing your application for a limited grant of letters of administration of Mr Cowan's estate and have directed that your caveat not be accepted for filing.

(Page 4)

5 This appeal is brought under O 60A r 4(1). It is perhaps open to doubt whether an administrative decision of the sort made by Registrar Dixon can, in any circumstances, be the subject of an appeal. However, that point was not argued and that question can await another day. For the purposes of this application, I am prepared to accept that an appeal from the registrar's decision does lie under r 4(1).

6 The appeal itself is a hearing de novo. I am required to consider afresh all of the matters relevant to a decision in this matter. Having taken that step and reviewed the material, I am satisfied that the decision of the learned registrar was entirely proper and appropriate. In fact, I would adopt the learned registrar's wording. There is nothing more that I could effectively add. The registrar has covered all aspects of the application in a proper and appropriate fashion.

7 For these reasons, I would dismiss Mr Avsar's appeal.