Sullivan v Commissioner of Probate Duties (Vic) [1976] HCA 43

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Sullivan v Commissioner of Probate Duties (Vic) [1976] HCA 43

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria set aside and in lieu thereof order that the appeal be allowed with costs. Assessment reduced in accordance with the reasons for judgment. Order that repayment of the amount of duty overpaid be made to the appellants.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 17 Barwick C.J.

The executors of Alan Fergus Sullivan, deceased, (the appellants) objected to the assessment of probate duty made by the respondent Commissioner in respect of the final balance of the deceased estate. The respondent disallowed the objection except in what is now an immaterial particular. The appellants required that their objection be treated as an appeal. The Supreme Court of Victoria (Starke J.) dismissed the appeal and confirmed the assessment except to the extent to which the appellants' objection had been allowed by the Commissioner.

The appellants now appeal to this Court by its special leave from the decision of the Supreme Court.

There was real estate valued at $10,000, money at bank $147.02, shares to the value of $1,581.50 and the proceeds of life policies $27,595.75 in the estate of the deceased. The deceased at his death owed $28,515.35 and, in addition, there were claims not admitted by the appellants but apparently not abandoned by the claimants totalling $47,000. The amount of the debts, $28,515.35, thus exceeded the estate of the deceased other than the proceeds of the life policies.

The estate of the deceased, being insolvent, was administered in bankruptcy. The trustee in bankruptcy had disowned the life policies. Section 92 (2) of the Life Insurance Act 1945 (as amended) Cth, prevented the proceeds of the policies being liable to be applied or made available in payment of the debts of the deceased "by any judgment, order or process of any court, or by retainer by an executor or administrator, or in any other manner whatsoever "