Stedman v O'Hearn;Hosemans v O'Hearn

[2006] NSWSC 1122

CITATION:	Stedman v O'Hearn;Hosemans v O'Hearn [2006] NSWSC 1122
HEARING DATE(S):	16 October 2006
JUDGMENT DATE :	16 October 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Where one of two executors was a plaintiff for an FPA order against the estate, the other was appointed to represent the estate for the purposes of two sets of FPA proceedings ordered to be heard together.
CATCHWORDS:	PROCEDURE [90] – Supreme Court procedure – Procedure under rules of court – Parties – Representative orders – Whether necessary.
LEGISLATION CITED:	Family Provision Act 1982 Interpretation Act 1987 s 8 Supreme Court Rules 1970 Part 8 Uniform Civil Procedure Rules 2005 r 7.10
CASES CITED:	Collison v Collison NSWSC, Master McLaughlin, 28 March 1995, unreported O’Brien v McCormick [2005] NSWSC 619 Re M C Mitchell (deceased) (1941) 42 SR(NSW) 19
PARTIES:	5122/04 William Henry Stedman (P) Patricia O'Hearn (D) 2924/06 Rachel Jade Hosemans (P) Patricia O'Hearn (D1) William Henry Stedman (D2)
FILE NUMBER(S):	SC 5122/04; 2924/06
COUNSEL:	5122/04 John Wilson SC (P) A G Todd (D)
SOLICITORS:	5122/04 Kingston Swift (P) Cunningham & Adam (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 16 OCTOBER 2006

5122/04 WILLIAM HENRY STEDMAN v PATRICIA O’HEARN – ESTATE OF ROBYN GLENDA HOSEMANS
2924/06 RACHEL JADE HOSEMANS v PATRICIA O’HEARN & ANOR

JUDGMENT

1 HIS HONOUR: This is a motion in proceedings 5122/04. They relate to the estate of R G Hosemans, deceased. She has two executors, the first of whom is the plaintiff, who makes a claim against the estate under the Family Provision Act 1982 (the FPA), and the other is the defendant. I should add that these proceedings are for trial next week before an Associate Justice and they have been ordered to be heard at the same time as proceedings 2924/06 in which Rachel Jade Hosemans also makes a claim under the FPA against the same estate naming as defendants both the plaintiff and the defendant in 5122/04.

2 The first submission made on behalf of the defendant in 5122/04 is that her co-executor should not continue to be an executor if he continues to be a plaintiff when the matter is heard next week. She maintains he should either renounce probate or be removed as an executor and the proceedings should be reconstituted accordingly.

3 Mr John Wilson, of Senior Counsel for the plaintiff, has controverted the proposition that the making of a claim under the FPA by an executor requires the executor to renounce probate.

4 Despite being a comparatively common occurrence, this area has not received a great deal of attention by way of authority. However, Mr Wilson does draw my attention to the decision of that very learned Equity Judge Roper J in Re M C Mitchell (deceased) (1941) 42 SR(NSW) 19. It is clear from that decision that Roper J did not think it necessary for the executor making the claim to renounce probate, but that he could proceed by serving notice of the application on a co-executor.

5 Furthermore, it appears to be contemplated that an executor who makes an FPA claim may continue in the office of executor under the provisions of Schedule J to the Supreme Court Rules 1970 (the SCR) which are still in force. In the section of that schedule relating to the FPA, it appears that, if a plaintiff under the FPA is a sole executor, then he should name no defendant (cl 6), and that the Court will provide a contradictor under the representative order provisions in Part 7 of the Uniform Civil Procedure Rules 2005 (UCPR). Authority to the same effect is contained in Collison v Collison (NSWSC, Master McLaughlin, 28 March 1995, unreported), cited with approval by Campbell J in O’Brien v McCormick [2005] NSWSC 619.

6 I should indicate that both parties have indicated to the Court that they would be satisfied if, upon this motion, I were to make an order to the effect that the defendant be appointed to represent the estate for the purposes of these proceedings. I am not quite certain whether such an order is in fact necessary. From what I have been able to divine from the authorities I have cited and from enquiries about the practice of the Court, I have formed the view that such proceedings are often conducted simply with the one executor as the plaintiff and the other executor in fact acting as contradictor and representing the estate without a representation order actually being made. However, the parties have agreed that I should follow the course of making a representative order in this case. Furthermore, whilst I should not be taken as necessarily disapproving the course I have just outlined, it seems to me that the better course may be for a representative order to be made.

7 There are various candidates amongst the rules in Part 7 of the UCPR for the one under which it is appropriate to make such an order. The choice is not rendered entirely easy, because the different rules about representation that appear in Part 7 overlap somewhat, a situation inherited by that Part from Part 8 of the SCR which it replaced.

8 I am rather of the view that the most appropriate rule is in fact r 7.10. That rule provides that in any proceedings in which it appears to the Court that:

“...the executors or administrators of a deceased person’s estate have an interest in the proceedings that is adverse to the interests of the estate, the Court may appoint a representative for the deceased person’s estate for the purpose of the proceedings”.

Whilst the requirement relating to adverse interests uses the words “executors or administrators” in the plural, it seems to me that it flows from s 8 of the Interpretation Act 1987 that that provision encompasses a situation where one of the personal representatives has an adverse interest.

9 Another matter that conduces to the appropriateness of the making of a representation order in proceedings 5122/04 is the constitution of proceedings 2924/06. There, both executors are named on the same side of the record, that is, as defendants. However, it seems to me that the plaintiff in 5122/04 has fairly clearly a role adverse to the interests of the estate, if both sets of the proceedings are to be tried together, so that the relativity to the two claims will be something that the Court takes into consideration in deciding what order, if any, it will make in each set of proceedings.

10 In those circumstances it seems clear to me that the plaintiff in 5122/04 ought to be relieved of any role in defence of the estate in proceedings 2924/06 by an order in those proceedings that Patricia O’Hearn be appointed to represent the interests of the estate in those proceedings. That being so, and the proceedings being heard together, I think it desirable to make a similar order in 5122/04, namely, that Patricia O’Hearn be appointed to represent the interests of the estate for the purposes of those proceedings as well. I therefore make such an order in each set of proceedings.

11 In proceedings 5122/04 I order that the defendant be appointed to represent the estate of the deceased for the purposes of the proceedings. I order that the costs of each party of the motion be paid out of the estate.

12 In proceedings 2924/06 I order that the first defendant be appointed to represent the estate of the deceased for the purposes of the proceedings.

13 Costs have been argued before me. I have determined that the costs of each party of the motion should be paid out of the estate as stated. It has been indicated that it is not desired that I give reasons for this decision.

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