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Rosenberg v Bloom

Rosenberg v Bloom

Case [2024] NSWSC 114 15 February 2024

Standing

Executor

Indemnification

Administrator Pendente Lite

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Rosenberg v Bloom [2024] NSWSC 114
Hearing dates: 22 August 2023
Date of orders: 15 February 2024
Decision date: 15 February 2024
Jurisdiction: Equity
Before: McGrath J
Decision:
See [108]

Catchwords:
SUCCESSION — probate and administration — application for appointment of administrator pendente lite pursuant to s 73 of the Probate and Administration Act 1898 (NSW) or the inherent jurisdiction of the court — HELD — not necessary nor appropriate in the circumstances for court to appoint an administrator pendente lite
SUCCESSION — probate and administration —application for order preventing executor from using estate funds for legal expenses in the future — HELD — executor entitled to be indemnified by the estate for costs incurred as an incident of the administration of the trust estate
SUCCESSION — probate and administration —application for order requiring executor to repay estate funds already used for legal expenses — HELD — executor not obliged to repay money spent from the estate on legal expenses

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Probate and AdministrationAct 1898 (NSW)

Cases Cited:
Drummond v Drummond [1999] NSWSC 923
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate of Ritossa [2022] NSWSC 1083
Goodsall v Keen [2006] NSWSC 1143
Gooley v Gooley [2020] NSWSC 798
Greenway v McKay (1911) 12 CLR 310; [1911] HCA 25
Kozak v Berwecki [2008] NSWSC 39
Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13
O'Brien v McCormick [2005] NSWSC 619
Rattigan v Hanly [2020] NSWSC 1722
Ritossa v Ritossa [2023] NSWCA 14
The Estate of Alberto Magri (No 2) [2022] NSWSC 1779

Category: Principal judgment
Parties: Ildiko Rosenberg (Plaintiff/Cross-defendant/First Respondent)
Yonah Bloom (First Defendant/First Cross-claimant/ Second Respondent)
Judit Albecz (Second Defendant/Second Cross-claimant/Applicant)
David Warwick Johnson (Third Defendant/Third Cross-claimant/Third Respondent)
Representation:
Counsel:
E Glover (Plaintiff/Cross-defendant/First Respondent)
L Ellison SC with P Muscat (First Defendant/First Cross-claimant/Second Respondent)
B Oliak (Second Defendant/Second Cross-claimant/ Applicant)
Solicitors:
Arnotts Lawyers (First Defendant/First Cross-claimant/Second Respondent)
Palmer Legal (Second Defendant/Second Cross-claimant/Applicant)

File Number(s): 2021/00153209
Publication restriction: Nil

JUDGMENT

INTRODUCTION

This is an application brought by the second defendant/second cross-claimant, Judit Albecz, by way of an amended notice of motion filed 16 May 2023 in the substantive proceedings, primarily seeking an order pursuant to s 73 of the Probate and Administration Act 1898 (NSW) or the inherent jurisdiction of the court for a special grant of administration of the estate of the late Paul Lenkey (the Deceased) to Leah Sewell (an experienced estates solicitor) and a number of ancillary orders concerning the administrator arising from that grant.
Such an appointment is known as an administrator pendente lite, which is in effect to manage the estate pending determination of the substantive proceedings concerning the validity of the will and/or revocation of probate. Amongst the orders sought in the motion is the appointment of an administrator to represent the estate until further orders. This is contrasted with an administrator ad litem, who is an administrator appointed by…

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 Rosenberg v Bloom

Details

AGLC: Rosenberg v Bloom [2024] NSWSC 114
Case: [2024] NSWSC 114
Decision Date: 15 February 2024

CaseChat Overview and Summary

In the matter of Rosenberg v Bloom, the dispute arose between the executor of a deceased estate and the beneficiaries of that estate. The case was heard in the Supreme Court of New South Wales, where the beneficiaries sought the appointment of an administrator pendente lite to manage the estate's affairs during the course of litigation, and to restrain the executor from incurring further legal expenses from the estate's funds. Additionally, they sought an order that the executor repay legal expenses already incurred.

The court was required to determine whether it was necessary or appropriate to appoint an administrator pendente lite, whether the executor could be indemnified for legal expenses incurred, and whether the executor was obliged to repay legal expenses already expended. The court considered the relevant provisions of the Probate and Administration Act 1898 (NSW), as well as its inherent jurisdiction in matters of probate and administration.

The court held that the appointment of an administrator pendente lite was not necessary or appropriate in the circumstances, as the executor was already managing the estate's affairs in accordance with the terms of the will and the law. The court found that the executor was entitled to be indemnified by the estate for costs incurred as an incident of the administration of the trust estate, and that the executor was not obliged to repay money already spent on legal expenses. The court emphasised the importance of the executor acting in good faith and in the best interests of the beneficiaries, and that the estate should not be unduly burdened by legal expenses.

Orders