Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106

FEDERAL COURT OF AUSTRALIA

Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 BANKRUPTCY – creditor's petition for administration of estate of deceased person – pending applications in State court for probate and letters of administration – whether bar to creditor's petition - whether leave of the court is required – "proceedings for the administration of a deceased person's estate".

PRACTICE AND PROCEDURE – precedent – whether previous decision of single Judge should be followed – whether previous decision 'plainly wrong'.

Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria:Pt 54 Cooper v Commissioner of Taxation (2004)139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) & ORS VID838 OF 2006

JESSUP J

22 AUGUST 2006

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID838 OF 2006

BETWEEN: MEINHARDT (HONG KONG) LTD

Applicant

AND: WILLIAM LINDSAY MEINHARDT (DECEASED)

First Respondent

WILLIAM EDWARD MEINHARDT

Second Respondent

VICTORIA BARBARA TREYVAUD

Third Respondent

JUDGE: JESSUP J

DATE: 22 AUGUST 2006

PLACE: MELBOURNE

RULING 1 William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. 2 On 4 July 2006, the executors issued a summons in the proceeding which they had commenced in the Supreme Court under which they sought orders that they have leave to renounce their application for probate in favour of State Trustees Ltd or another nominated corporate trustee. This proceeding and the proceeding commenced by William Meinhardt Jr remain pending in the list of the Supreme Court. The parties to those proceedings have agreed to seek an adjournment of them until after 21 September 2006. 3 On 1 May 2006 the present proceeding was commenced in the Federal Magistrates Court. The applicant petitions for an order for the administration in bankruptcy of the estate of William Meinhardt Sr pursuant to s 244 of the Bankruptcy Act 1966 (Cth). The executors, and the children of the deceased, were served with the petition. On 21 June 2006 the Federal Magistrates Court ordered that Victoria Treyvaud and William Meinhardt Jr be joined as respondents, and that the executors be excused from further appearance in the proceeding. 4 In the course of interlocutory proceedings in the Federal Magistrates Court, it became apparent that it would be contended that the commencement of this proceeding was not regular in the absence of leave having been granted for the presentation of the petition pursuant to subs (13) of s 244, which provides as follows: "Where proceedings have been commenced in a court for the administration of a deceased person's estate under a law of a State or Territory, a petition for an order under this section in relation to the estate shall not be presented by a creditor except by leave of the Court and on such terms and conditions (if any) as the Court thinks fit." It also became apparent that reliance would be placed upon the judgment of this Court in Gonzalez v Maria de Luz Marmentini, Executrix of the Estate of the late Ida Garcia Raber, an unreported judgment of Emmet J given on 7 July 1998. I shall refer to that judgment further below, it being sufficient here to relate that the Federal Magistrates Court considered it more appropriate that the argument whether that judgment was 'plainly wrong', if there were to be such an argument, should be had in this Court, rather than in that Court. For this and other reasons to which that Court referred, on 19 July 2006 the proceeding was transferred to this Court.