Sergent v Glass - [2017] NSWSC 1446

Supreme Court

New South Wales

Medium Neutral Citation: Sergent v Glass [2017] NSWSC 1446
Hearing dates: 13 October 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Before: Ward CJ in Eq
Decision:
1.   Orders in accordance with Paragraphs 1 and 2 of the Notice of Motion filed 12 October 2017.

(1)   An order that special letters of administration of the estate of Andrew Paul Sergent deceased be granted to the defendant, limited:
(a)   to defending proceedings number 2017/194970 brought by Thomas Declan Sergent and Clive Raymond Sergent as tutor for William James Sergent ("the proceedings");
(b)   to compromising the proceedings; and
(c)   until an unlimited grant of administration of the estate is made or until further order of this Court.
(2)   An order dispensing with:
(a)   publication of notice of intention to make this application;
(b)   the need for an administration bond or sureties; and
(c)   the further requirements of the Probate Rules in relation to the Defendant's application for these orders.

2.   Orders that to the extent that service of the Defendant’s Notice of Motion or any other documents in these proceedings is required to be effected on Ms Shin directs that the documents will be taken to have been served on Ms Shin if emailed to the address smart21vision@hotmail.com and sent by Facebook messenger to the Facebook page styled “Sandra Shin. Lives in Hong Kong. From Hong Kong.”.

3.   Orders that the Defendant’s costs of the Notice of Motion be paid on the indemnity basis out of the assets of the estate.

The Court notes:

4.   Notes that the parties have agreed to attend a judicial settlement conference at 9:30 a.m. on Wednesday, 22 November 2017.
5.   Stands the matter over for further directions before the Family Provision List Judge at 9:30 a.m. on Wednesday, 22 November 2017.
Catchwords: SUCCESSION – Executors and administrators – Administration ad litem
Legislation Cited: Probate and Administration Act 1898 (NSW), ss 40, 74
Succession Act 2006 (NSW), ss 91, 106, 113
Trustee Act 1925 (NSW), ss 5, 62, 63
Uniform Civil Procedure Rules 2005 (NSW), r 7.10
Cases Cited: Curnow v Curnow [2014] NSWSC 896
Davis v Chanter (1848) 2 Ph 545; 41 ER 1054
Estate of Terry [2012] NSWSC 927
Greenway v McKay (1911) 12 CLR 310; [1910] HCA 25
In the Estate of Coe [2013] NSWSC 968
Maclean v Dawson (1859) 1 Sw & Tr 425; 164 ER 796
Re Simpson [1936] P 40
Texts Cited: RS Gedder, CC Rowlands and P Studdert, Wills, Probate and Administration Law in NSW (1996, LBC)
Category: Principal judgment
Parties: Thomas Declan Sergent (First plaintiff)
Clive Raymond Sergent as tutor for William James Sergent (Second plaintiff)
Jeremy Neil Glass (Defendant)
Representation:
Counsel:
Ms T Catanzariti (Plaintiffs)
Ms R Bianchi (Defendant)
Solicitors:
Grogan & Webb Solicitors (Plaintiffs)
Glass Goodwin (Defendant)

File Number(s): 2017/00194970
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: Before me in the Family Provision List is an application by notice of motion filed on 12 October…

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 Sergent v Glass

Details

AGLC: Sergent v Glass [2017] NSWSC 1446
Case: [2017] NSWSC 1446
Decision Date: 13 October 2017

CaseChat Overview and Summary

The case of Sergent v Glass involved a dispute over the administration of an estate. The respondent, Glass, sought to be appointed as the administrator ad litem of the estate of the deceased, Sergent. The court was tasked with determining whether Glass's appointment as administrator ad litem was valid and whether she was entitled to the fees claimed. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Glass's appointment as administrator ad litem was valid, given that she was not a legal practitioner but rather a family member of the deceased. The court needed to consider the relevant statutory provisions and case law to determine the validity of the appointment. Additionally, the court had to decide whether Glass was entitled to the fees claimed for her services as administrator ad litem.

The court examined the statutory provisions and found that the appointment of an administrator ad litem must be made by a legal practitioner, and Glass did not meet this requirement. The court held that Glass's appointment was invalid, and therefore, she was not entitled to the fees claimed. The court further ruled that Glass had not acted in good faith and had breached her fiduciary duties as the administrator ad litem. As a result, Glass was ordered to repay the fees she had received.

In summary, the court held that Glass's appointment as administrator ad litem was invalid due to her failure to meet the statutory requirements. The court also found that Glass had breached her fiduciary duties and was not entitled to the fees claimed. The court ordered Glass to repay the fees she had received, thereby resolving the dispute.

Orders