Miller as executor of the estate of Detlef John Kirsten v Kirsten [2021] FCA 1022

Federal Court of Australia

Miller as executor of the estate of Detlef John Kirsten v Kirsten [2021] FCA 1022 File number: SAD 183 of 2020

Judgment of: BESANKO J

Date of judgment: 27 August 2021

Catchwords: PRACTICE AND PROCEDURE — application for stay of proceeding — where plaintiff brings proceeding in her capacity as executor of estate — where appeal presently before South Australian Court of Appeal in which related party seeks setting aside of orders made in judicial advice proceeding absolving plaintiff from alleged conflict of interest — where defendants and related party have foreshadowed application for revocation of probate in Supreme Court of South Australia if appeal successful — whether appropriate to stay proceeding pending determination of appeal and foreshadowed application for revocation of probate — application dismissed PRACTICE AND PROCEDURE — application for order under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) transferring proceeding to Supreme Court of South Australia — where defendants assert issues in proceeding are related to issues in proceedings in Supreme Court — where probate of will granted to plaintiff by Supreme Court — where defendants have foreshadowed cross-claim seeking revocation of probate — where defendants assert cross-claim would effectively seek orders revoking order of Supreme Court — whether appropriate to transfer proceeding — application dismissed

Legislation: Corporations Act 2001 (Cth) s 1071F Federal Court of Australia Act 1976 (Cth) s 23 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5 Federal Court Rules 2011 (Cth) r 1.32