Ritossa v Ritossa

Case [2023] NSWCA 14


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:

[2022] NSWSC 1083

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 appeal concerned an application for leave to appeal an interlocutory decision of the Supreme Court of New South Wales regarding the appointment of an interim administrator of the estate of the late Mr. Ritossa. The underlying proceedings involved a dispute between the parties, who were seeking to propound different wills of the deceased, and a contentious disagreement regarding the management of the estate pending the resolution of those proceedings.

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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