Steiner v Strang - [2015] NSWSC 14

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Steiner v Strang [2015] NSWSC 14
Hearing dates: 28 January 2015
Decision date: 03 February 2015
Jurisdiction: Equity Division - Duty List
Before: Ball J
Decision:
The plaintiff’s application for interim distribution pursuant to s 84 of the Probate and Administration Act be dismissed with costs.

Catchwords: WILLS AND ESTATES – application for interim distribution pursuant to Probate and Administration Act 1898 (NSW), s 84 – whether sufficient funds available in estate to make interim distribution – where estate has a number of unquantified liabilities – where separate proceedings on foot with potential to affect size of estate – where claimant unable to repay any amount distributed to it in the event of over distribution
Legislation Cited: Probate and Administration Act 1898 (NSW), s 84
Succession Act 2006 (NSW), s 62(1)
Cases Cited: John Steiner v Kenneth Ross Strang and Jason Tang [2014] NSWSC 1250
Gonzalez v Claridades [2003] NSWSC 508; (2003) NSWLR 188
Category: Procedural and other rulings
Parties: John Steiner (Plaintiff) Kenneth Ross Strang (First Defendant) Jason Tang (Second Defendant)
Representation:
Counsel:

R Jefferis (Plaintiff)
L Ellison SC (Defendants)

Solicitors:
Gells Lawyers (Plaintiff)
Glass Goodwin (Defendants)

File Number(s): 2012/185566

Judgment

Before the Court is an application by the plaintiff, one of the beneficiaries of the Estate of Dorothy Margaret Steiner (the plaintiff’s mother), that the defendant executors make further distributions of such amount of the plaintiff’s pecuniary legacy as the Court thinks proper.
The application was originally foreshadowed to the Court at the time the plaintiff made an application for leave to serve on short notice a notice of motion seeking the order. That leave was granted and the notice of motion was made returnable on 28 January 2015. It appears, however, that the notice of motion, although served, was not filed. Nonetheless, there was an appearance for the defendants on 28 January 2015 and I proceeded to hear the application. The application was said to be urgent because of the financial position of the plaintiff.
The application is made under s 84 of the Probate and Administration Act 1898 (NSW), which relevantly provides:

If the executor or administrator, after requesting in writing, neglects or refuses to:
(a)   …
(b)   …
(c)   pay or hand over to the person entitled any legacy or residuary bequest,
the Court may, on the application of such devisee or person, make such order in the matter as it may think fit.

The notice of motion also sought an order for interim provision to the plaintiff pursuant to s 62(1) of the Succession Act2006 (NSW). However, the plaintiff did not press that relief.

It is not disputed that the executors may have a duty to make interim distributions where it is prudent to do so: see Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 at [47]. Nor is it disputed that the plaintiff has requested in writing that the executors make a further interim distribution so as to…

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 Steiner v Strang

Details

AGLC: Steiner v Strang [2015] NSWSC 14
Case: [2015] NSWSC 14
Decision Date: 03 February 2015

CaseChat Overview and Summary

The applicants, executors of the estate of the deceased, sought an interim distribution of the estate pursuant to section 84 of the Probate and Administration Act 1898 (NSW). The respondents were various creditors and interested parties contesting the application on the basis that there were insufficient funds in the estate to make such a distribution. The dispute was heard in the Supreme Court of New South Wales, Equity Division.

The central legal issue before the court was whether the applicants could demonstrate that there were sufficient funds in the estate to make an interim distribution. The court had to consider the extent of the liabilities of the estate, including those that were unquantified, as well as the potential impact of separate proceedings that were ongoing and could affect the size of the estate. Another consideration was the ability of the applicant to repay any amount distributed to it in the event that there was an over distribution.

The court held that the applicants had not discharged the onus of establishing that there were sufficient funds available for an interim distribution. The court found that the unquantified liabilities and the separate proceedings created too much uncertainty to allow for the distribution of funds. Additionally, the inability of the applicant to repay any amount distributed in the event of an over distribution further complicated the matter. Consequently, the application for interim distribution was dismissed.

The court made no orders for costs.

Orders