Scotting v Chan

[2005] QSC 170

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION [2005] QSC 170

BYRNE J

No 2426 of 2005

AILEEN CAROLE SCOTTING, KERRIE	Applicants
DOROTHY MAY HAYES, KAREN ANN CROSSIE, ANDREW CRAIG SCOTTING, AMANDA CAROLE MIDDLETON, BRENT ARTHUR HAYES, CRAIG MICHAEL HAYES, MICHAEL WILLIAM THOMPSON AND JASMINE THOMPSON
and
CHARLES CHOK KWONG CHAN	Respondent
BRISBANE ..DATE 17/06/2005
JUDGMENT

17062005 D.2 T1/KAM (Byrne J)

HIS HONOUR: The applicants are beneficiaries under the will	1
of the late Walter Crossie, who died in November 2004. The respondent is the executor. The applicants seek the appointment of one of them, Mr AC Scotting, to administer the estate.

10

Although no grant of probate has yet issued, the estate has been substantially administered.

Two main functions remain to be performed by the personal representative. One is to respond to a claim against the estate foreshadowed by Mrs Crossie, the testator's widow, who	20
important for present purposes, is to consider and, if it seems in the interests of the estate, to prosecute claims against the respondent and Mrs Crossie. The claims arise out of the exercise of powers granted to them by the testator under an enduring power of attorney. The claims are for compensation pursuant to section 106 of the Powers of
is also a beneficiary under the will. The other, and more arise out of conduct alleged to have been engaged in by the respondent and Mrs Crossie during the testator's lifetime.	30
40
The hearing of this application for Mr Scotting's appointment
as administrator has not involved any investigation of the
50
merits of those prospective claims. Rather, the argument has
proceeded upon an apparent assumption that, for the purposes of this application at any rate, the foreshadowed claims may be supposed to be fairly arguable.

2 JUDGMENT 60

17072005 D.2 T2/SDH (Byrne J)

In this state of affairs, plainly it is not appropriate that	1
the respondent continue to act as the personal representative for the purpose of assessing or prosecuting the foreshadowed claims against him and Mrs Crossie. As it is not suggested on either side that there might be a limited appointment of someone else as administrator for the purpose of dealing with the prospective claims against the respondent and Mrs Crossie, a new administrator needs to be appointed in respect of the entire estate. This conclusion is not only inevitable; it is also not contentious. The contentious question is whether Mr Scotting should be so appointed.	10
20
His appointment is supported by the other applicants. It is
opposed by Mrs Crossie and by two other beneficiaries - one a son of the testator; the other, a niece of Mrs Crossie. None of these three has appeared to resist Mr Scotting's	30
appointments; but in affidavits read for the respondent the
opponents deposed to the fact of their opposition to Mr
Scotting's appointment. No ground of opposition is assigned.
It is said, however, in the respondent's pleading that Mr
40
Scotting is not someone who might appropriately be appointed
because, being a close relative of other applicants and having assisted them in previous proceedings in this Court and before the Guardianship and Administration Tribunal, Mr Scotting
would not bring a fair and disinterested judgment to bear upon
50
pertinent matters. The pleading further contends that, "in
the premises", Mr Scotting is not in a position to assess properly the basis and prospects of an action pursuant to section 106 of the legislation mentioned, nor to make a

3 JUDGMENT 60

17072005 D.2 T2/SDH (Byrne J)

decision whether such an action should be brought, nor to	1
prosecute such an action appropriately, nor to make decisions as to the basis upon which any such action should be settled or otherwise discontinued, nor to administer the estate generally in a proper manner.

10

Mr Scotting practises as a barrister in Sydney. He does not seek to obtain any remuneration from his appointment. He has been closely associated with the prosecution by two of the other beneficiary applicants of proceedings in this Court and in the Guardianship and Administration Tribunal against the respondent and Mrs Crossie. In those proceedings, the claims were for substantially the same relief on substantially the same grounds as it now seems would need to be evaluated by Mr Scotting were he appointed to administer the estate.	20
30
Mr Scotting has acknowledged in evidence that, through his involvement in those other proceedings, he is of the view that there are reasonable prospects of success of obtaining compensation in the foreshadowed claims. He considers that some other potential claims against the respondent and Mrs Crossie, not pursued in those proceedings, require further investigation and legal analysis.	40
This is a far cry from a state of affairs which would justify
50
a conclusion that Mr Scotting would not bring a properly
informed and considered judgment to bear on the prosecutions
of the foreshadowed claims against the respondent and Mrs
Crossie.

4 JUDGMENT 60

17072005 D.2 T2/SDH (Byrne J)

Mr Scotting was not taxed with any suggestion, nor is there	1
evidence otherwise to indicate, that the views he presently entertains concerning the prospects of success of the prospective claims are unreasonable. Nor does anything emerge in the evidence to indicate that he might imprudently hazard the resources of the estate in the pursuit of inappropriate compensation claims against the respondent or Mrs Crossie.	10
No person entitled in priority - see UCPR 603(1) - seeks an
appointment.	20
There ought therefore to be an order appointing Mr Scotting as the administrator.
I will hear submissions with respect to the form of order.	30
...
HIS HONOUR: I consider the litigation has been unduly
complicated on both sides - on Mr Chan's side by not accepting	40
the inevitable at a much earlier stage; and on the applicant's side by pursuing against him to the first day of the hearing a claim for relief under section 106.
Both parties may therefore have their costs out of the estate.	50

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5 JUDGMENT 60