Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ritossa v Ritossa [2023] NSWCA 14 Hearing dates: 09 February 2023 Date of orders: 15 February 2023 Decision date: 15 February 2023 Before: Bell CJ at [1];
Gleeson JA at [53];
White JA at [54]Decision: Application for leave to appeal dismissed with costs
Catchwords: SUCCESSION – probate and administration – appointment of interim administrator where underlying proceedings involved multiple contested wills – interpretation of s 73 of the Probate and Administration Act 1898 (NSW) – whether discretion to appoint interim administrator properly exercised – whether necessary to find that estate assets were ‘in jeopardy’ in order for administrator to be appointed – where toxic relationship between parties seeking to propound different wills – where dispute between parties as to management of the estate pending resolution of underlying proceedings
APPEALS – leave to appeal – principles governing – appeal from an interlocutory decision – leave refused
Legislation Cited: Probate and Administration Act 1898 (NSW) s 73
Supreme Court Act 1970 (NSW) s 101(2)(e)
Cases Cited: Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13
Fish v Solution 6 Holdings Limited (2006) 225 CLR 180; [2006] HCA 22
Gooley v Gooley [2020] NSWSC 798
Greenway v McKay (1911) 12 CLR 310
In the matter of the Will of F B Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45
Moustach Pty Limited v Eddie Takchi [2015] NSWSC 2079
Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62
Totaan v R [2022] NSWCCA 75
Texts Cited: F C Hutley, ‘The executor de son tort in the law of New South Wales’ (1952) 25 Australian Law Journal 716
Category: Principal judgment Parties: Ivan Robert Ritossa (Applicant)
Anthony Ronny Ritossa (First Respondent)
Tamara Jayne Goodwin in her capacity as administrator of the Estate of the late Maria Ritossa (Second Respondent)Representation: Counsel:
K Morgan SC with Z M Hillman (Applicant)
S Chapple with J Shandil (First Respondent)
Submitting appearance (Second Respondent)Solicitors:
Arnold Bloch Leibler Lawyers and Advisers (Applicant)
Maurice Blackburn Lawyers (First Respondent)
Glass Goodwin Solicitors (Second Respondent)
File Number(s): 2022/253064 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 10 August 2022
- Before:
- Lindsay J
- File Number(s):
- 2019/00142695
HEADNOTE
[This headnote is not to be read as part of the judgment]
Ivan Ritossa (the Applicant) and Anthony Ritossa (the First Respondent) are engaged in probate proceedings concerning the three competing wills of their…
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- AGLC
- Ritossa v Ritossa [2023] NSWCA 14
- Case
- [2023] NSWCA 14
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the primary judge had properly exercised their discretion under section 73 of the *Probate and Administration Act 1898* (NSW) in appointing an interim administrator. This required the Court to consider whether it was a necessary prerequisite to finding that the estate assets were "in jeopardy" before such an appointment could be made, particularly in circumstances of a toxic relationship between the parties and a dispute over estate management.
The Court of Appeal affirmed the principles governing appeals from interlocutory decisions, noting that leave to appeal is not granted as of right. It was held that the primary judge's decision to appoint an interim administrator was a proper exercise of discretion, given the acrimonious dispute between the parties and the need for independent management of the estate to preserve its assets and ensure orderly administration pending the determination of the contested wills. The Court found that the "jeopardy" of assets was not a strict requirement for the exercise of the discretion, but rather the overall circumstances, including the breakdown in communication and the potential for mismanagement, justified the appointment.
Consequently, the application for leave to appeal was dismissed, and the respondents were awarded their costs.
Orders
Orders of the court
Application for leave to appeal dismissed with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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