The Estate of Alea Angelic Dupree

[2021] NSWSC 1022

Supreme Court

New South Wales

Medium Neutral Citation:

The Estate of Alea Angelic Dupree [2021] NSWSC 1022

Hearing dates:

9 August 2021

Date of orders:

9 August 2021

Decision date:

09 August 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See paras [24]-[26]

Catchwords:

PRACTICE AND PROCEDURE — Review of Registrar’s decision under UCPR r 49.19 — Principles to apply — Nature of review

SUCCESSION — Administration of estates — Persons entitled on intestacy — Letters of Administration

Legislation Cited:

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Noble Earth Technologies v Hampic trading as Cyndan Chemicals [2012] NSWSC 935

Category:

Principal judgment

Parties:

Andrew John Fleming (plaintiff)
The Estate of the Late Alea Agelic Dupree also known as Alea Angelique Dupree

Representation:

Counsel:
D Liebhold

Solicitors:
Andrew Fleming, Walker & White

File Number(s):

2021/101061

Judgment

The Proceedings

1. Before the Court are two summonses. The first seeks a grant of Letters of Administration ad litem in respect of the estate of Alea Angelic Dupree (also known as Alea Angelique Dupree) late of San Fransisco who died on 6 January 2019.

2. There is also a summons for a grant of Letters of Administration ad colligenda bona defuncti in respect of the estate of Miles Jack Dupree late of Redfern who died on 20 December 2017.

The Background Facts

3. Alea Dupree died on 6 January 2019 and was not survived by spouse or issue. She was however survived by her parents Kicia Mills and Kevin Bryerley.

4. Based on inquiries to date she died intestate. In such circumstances s.128 of the Succession Act 2006 (NSW) (“Succession Act”) gives an entitlement to her whole estate to her parents.

5. The person generally entitled to a grant of Letters of Administration is the person with the greatest interest in the estate. The person must be domiciled within the jurisdiction of the Supreme Court of NSW.

6. Kicia is domiciled in Oregon and Kevin in Nevada, USA.

7. Each of Kicia and Kevin has granted a power of attorney to seek a grant of Letters of Administration to Mr Andrew John Fleming a solicitor of the Supreme Court of NSW and to act as administrator of the estate.

8. At the time Miles died in 2017 he was married to Alea. They had been married since 2015.

9. Although they were separated at the time of his death, and subject to further inquiries, it would appear that Miles was not in a domestic relationship with any other person.

10. It also seems that Miles died intestate.

11. Pursuant to s.105 of the Succession Act, “spouse” is defined to include any person married to a person or in a domestic partnership with that person at the time of the person’s death.

12. Section 111 of the Succession Act provides that if an intestate leaves a spouse but no issue, the spouse is entitled to the whole of the intestate estate.

13. Therefore the whole of Miles’ estate can prima facie be the subject of a grant of administration to Alea’s legal personal representative.

14. So far as the evidence stands at the moment the only asset of Alea’s estate is it’s entitlement to Miles’ estate.

15. The only known asset is a property in Redfern. There may also be superannuation benefits.

16. The Redfern property has a registered mortgage over it and in favour of the Credit Union of Australia (now Great Southern Bank). There are unpaid rates and mortgage payments on the property and although it is insured as it is unoccupied there is concern about the insurance.

17. Miles’ parents have an interest as creditors of the estate, in the property. They are Toby Dupree and Kate Hodgkinson. Their solicitor, Mr Hourigan has filed an affidavit supporting the applications. Great Southern Bank has served default notices in relation to the unpaid mortgage payments.

18. An application for a grant was filed on 17 May 2021. On 20 May 2021 the Registrar was not satisfied on the basis of the then evidence that the applicant had established a sufficient basis for urgent orders protecting the estate assets. The Registrar took the view the applicant had been tardy with its application.

19. It is accepted that there has been considerable delay in progressing the application(s). However, this case throws up a set of unusual circumstances, not he least of which is the fact that Alea resided in the United States.

20. On 26 July, the Registrar issued a requisition indicating that as a result of the delay application could be made in the “usual way”. But a further request for urgency could be made. The applicant seeks to set this requisition aside pursuant to UCPR r.49.19.

21. Progressing the application conventionally would lead to a further delay and as the property cannot be listed for sale until a grant is made.

22. The principles governing such a review are set out in the decision of Hallen AsJ (as his Honour then was) in Noble Earth Technologies v Hampic trading as Cyndan Chemicals [2012] NSWSC 935 at [39]. Such a review is not an appeal, there is no need to demonstrate error of law or fact, the mode of the appeal is discretionary with the court obliged to hear the matter afresh. The onus is on the applicant to demonstrate that the court in the interests of justice should exercise a discretion to undertake the review. The court should pay due regard to the decision under review but should have regard to the material before the court both at the review stage and any subsequently relied upon.

23. In this case there is material not before the Registrar. In particular, updated evidence about the property potentially becoming uninsured by reason of it being unoccupied and the possibility of foreclosure by Great Southern Bank.

24. In each case the applications are unopposed. To grant them would immeasurably enhance the protection of the assets of the respective estates. In the estate of Alea it is necessary to permit the legal personal representative to obtain a grant of administration in respect of Miles’ estate. The grant of a colligenda bona defuncti is appropriate to protect the assets of the estate.

25. I consider it appropriate to make the grant in relation to Alea’s estate and also grant the relief sought instanter in relation to Miles’ estate.

26. I note that the orders do not allow for any distribution of the assets of either estate. Before that occurs further inquiries will need to be made so as to determine the identity of all persons entitled to any such distribution.

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Decision last updated: 16 August 2021