Russell v Lee

[2017] WASC 57

RUSSELL -v- LEE [2017] WASC 57

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 57
Case No:	CIV:3134/2016	Heard:	23 FEBRUARY 2017
Coram:	PRITCHARD J	Delivered:	23/02/17
No of pages:	4	Judgment Part:	1 of 1
Result:	Application granted subject to receipt of first defendant's affidavit
Category:	B
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Parties:	SHANA FRANCINNE RUSSELL NERIDA JAYNE PUANGKHAM FAY EILEEN LEE JOHN ANTHONY CAMPBELL LEE
Catchwords:	Administration Appointment of administrator on interim basis to represent deceased's estate in litigation
Legislation:	Administration Act 1903 (WA), s 35
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RUSSELL -v- LEE [2017] WASC 57 CORAM : PRITCHARD J HEARD : 23 FEBRUARY 2017 DELIVERED : 23 FEBRUARY 2017 FILE NO/S : CIV 3134 of 2016 BETWEEN : SHANA FRANCINNE RUSSELL

First Plaintiff

NERIDA JAYNE PUANGKHAM
Second Plaintiff

AND

FAY EILEEN LEE
First Defendant

JOHN ANTHONY CAMPBELL LEE
Second Defendant

Catchwords:

Administration - Appointment of administrator on interim basis to represent deceased's estate in litigation

Legislation:

Administration Act 1903 (WA), s 35

Result:

Application granted subject to receipt of first defendant's affidavit

Category: B

Representation:

Counsel:

First Plaintiff : Mr M A MacLennan
Second Plaintiff : Mr M A MacLennan
First Defendant : Dr P MacMillan
Second Defendant : No appearance

Solicitors:

First Plaintiff : Bennett + Co
Second Plaintiff : Bennett + Co
First Defendant : Fort Knox Legal
Second Defendant : No appearance

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

Nil

PRITCHARD J:

(This judgment was delivered extemporaneously on 23 February 2017 and has been edited from the transcript.)

1 This is an application brought by the plaintiffs for orders pursuant to s 35 of the Administration Act 1903 (WA) (Administration Act) for the appointment of an interim administrator in respect of the personal estate, and a receiver of the real estate, of the late Ronald William Lee, who is one of the plaintiffs in parallel proceedings to these (CIV 2605 of 2015) (the main proceeding). The purpose of the application is, essentially, to ensure that the estate of Mr Lee (the Estate) is represented in the course of the main proceeding.

2 The jurisdiction of the Court under s 35 is enlivened in circumstances where an application for probate or administration is pending in the Court. Mr Lee died intestate, and an application has now been made in the present proceedings for the appointment of an independent administrator for the Estate. The resolution of that application may take some time. In those circumstances, the question arises as to how the main proceeding should proceed given the death of one of the parties.

3 On 30 August 2016, I made an order in the main proceeding that that action should proceed in the absence of representation of the Estate, for the time being. I made that order on the basis that that was a temporary step designed to ensure that procedural steps could be taken to prepare the main proceeding for trial, but in the knowledge of all the parties that the Court would need to revisit that question as and when the trial of the main proceeding approached. That trial is now provisionally listed for hearing for several weeks in June 2017.

4 The point, therefore, has been reached where it is necessary to deal with the question of an appointment of a representative of the Estate, or the employment of some other means to ensure that the Estate's interests are represented in the main proceeding, and so that the disposition of that proceeding adequately and fairly binds the Estate.

5 The application made today is made with the consent of the first defendant. The second defendant has not consented to the application, but rather has filed a notice of his intention to abide by the decision of the Court. I should observe that the first and second plaintiffs are the daughters of Mr Ronald Lee, the first defendant is Mr Ronald Lee's widow, and the second defendant is Mr Ronald Lee's son. Those persons are the persons who, pursuant to s 13 and s 14 of the Administration Act, appear to be the likely beneficiaries of the Estate. The consent of the plaintiffs and first defendant to the orders that are sought today, and the position of the second defendant, support the conclusion that I would, in any event, have reached, that this is an appropriate case for the appointment of an administrator on an interim basis to represent the Estate in the main proceeding.

6 The Court's jurisdiction, as I said, rests on an application pending for an administrator to be appointed. In addition, I should observe that the jurisdiction of the Court can be exercised in a variety of cases, not all of which are confined to cases where it is "necessary" to appoint an administrator. It is not necessary to explore the extent of the Court's jurisdiction in that respect because it suffices to say that I am satisfied that in this case it is necessary to appoint an administrator of the Estate, on an interim basis, for the reasons I have already outlined.

7 The proposed administrator is Australian Executor Trustees Ltd (AET). Annexed to the affidavit of Jodie Kathleen Moffat affirmed 22 February 2017, which was filed in support of the present application, is correspondence which confirms that AET is willing to act as an executor. I am satisfied that it will be able to do so in circumstances where the Estate's interests will be adequately represented and that AET has the means to do so within a time frame that would permit the Court to be satisfied that trial preparation will be able to be progressed and not unduly delayed.

8 Having said that, one of the first things that I will require the interim administrator to do is to make some preliminary inquiries and then to report back to the Court in respect of the attitude of the interim administrator to the progress of the main proceeding, in particular in relation to preparation for trial, and in relation to other matters that have been ventilated by the parties in the main proceeding on a previous occasion, and which perhaps have not yet been finally resolved.

9 So, in the circumstances, what I propose to do is to indicate that I will make the orders set out in the plaintiffs' minute of proposed orders for the appointment of an interim administrator. However, I will do so only upon receipt of an affidavit which counsel for the first defendant has indicated can be provided within a couple of days, confining the position with respect to the subject matter of the orders in par 1.2 of the minute of proposed orders. I will expect that affidavit by Monday, 27 February 2017.