Supreme Court New South Wales Medium Neutral Citation: Pye v Pye [2021] NSWSC 686 Hearing dates: 8 June 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Equity Before: Hallen J Decision: See Paragraph [87] Catchwords: SUCCESSION - Letters of administration with will annexed - Application for revocation of the grant - Where due and proper administration of estate prevented by continuation of one of three co-administrators acting as administrator – Defendant a non-active party who does not appear at the hearing - Form of orders - Order for revocation of grant, with fresh grant to continuing administrators with consequential orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bates v Messner (1967) 67 SR NSW 187 Caldar v Public Trustee [2003] NSWCA 187 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 In the Goods of Galbraith [1951] P 422 In the Goods of Loveday [1900] P 154 Mavrideros v Mack (1998) 45 NSWLR 80 Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), Powell J, 8 May 1992, unrep) Riccardi v Riccardi [2013] NSWSC 1655 Richardson v Rearden [2006] NSWSC 1252 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877 Category: Principal judgment Parties: Rebecca Anne Pye (First Plaintiff) Jessie-Gene Pye (Second Plaintiff) Damon Harley Pye (Defendant) Representation: Counsel: K Morrissey (Plaintiffs) Solicitors: Turner Freeman (Plaintiffs) File Number(s): 2021/68291 Publication restriction: Nil Judgment Introduction 1. This is an application in the estate of Gene Warren Pye ("the deceased"), who died on 13 May 2019. 2. The deceased left a Will dated 6 March 2003, in which he appointed James Warland, Harold Lee, and Stuart Barnett as the executors. He left the whole of his estate to his three, now adult, children, Rebecca Anne Pye, Jessie-Gene Pye, who are the Plaintiffs, and to Damon Harley Pye, who is the Defendant, as joint tenants. 3. The executors named in the deceased's Will renounced Probate on 6 December 2019. On 17 April 2020, this Court granted Letters of Administration with the deceased's Will annexed, to the three children as beneficiaries under the Will of the deceased. A copy of the Exemplification of Probate was tendered and marked Ex. P2 in the proceedings. 4. In the Inventory of Property attached to, and placed inside, the Letters of Administration, the deceased's estate was said to comprise real estate situated at Woodford Street Minmi (the Minmi property), (which I understand to be an outer western suburb of Newcastle, New South Wales, located 19 kilometres from Newcastle's central business district), which was said to have a value, then, of $450,000. In addition, there was cash in bank ($399), 2 greyhound dogs ($6,000), a car ($20,000) a motor cycle ($10,000) and furniture ($1,000). (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.) 5. In the Inventory of Property, there was a reference to the deceased owning a 10/260 share of a property at Terragon (the Terragon property) (which I understand to be a town located in the Tweed Shire, in north-eastern New South Wales), as a joint tenant with three other persons. However, after the grant of Letters of Administration, the Plaintiffs ascertained that the deceased owned his share of the Terragon property as tenants in common with those three persons. Therefore, the deceased's interest in the Terragon property forms part of his estate. (The deceased's share of the Terragon property was said to have a value of about $24,231.) 6. The liabilities of the deceased that were known, as at 18 May 2020, included a debt secured by mortgage ($63,336), costs for solar panels ($11,297), a bank account with a debit balance ($373) and greyhound training expenses (unknown amount). The costs of, and incidental to, obtaining the grant of letters of administration and associated expenses, at that time, were $3,204). 7. The proceedings with which I am dealing were commenced by Statement of Claim filed on 10 March 2021. Whilst it claims a raft of relief, the principal relief, sought by the Plaintiffs, relates to the revocation of the grant of the Letters of Administration and an order that there be a grant of Letters of Administration, with the will annexed, to the Plaintiffs alone. The bases of the claim for relief relate to what is said to be the failure of the Defendant to act in accordance with his obligations to administer the estate in accordance with the law, so as to enable the due, proper, and efficient administration of the estate, in the interests of the beneficiaries entitled under the deceased's Will. 8. Jenna Maree Hutchinson, a partner in the firm of solicitors, Turner Freeman, which is the firm of solicitors acting for the Plaintiffs, in an affidavit affirmed on 4 June 2021, gave evidence, by way of example, that an offer has been made to purchase the Minmi property, on 21 April 2021, for $602,000, but that, despite the commencement of the proceedings, there have been difficulties obtaining the co-operation of the Defendant in regards thereto. I shall return to this topic later in the reasons. 9. The matter was listed in the Succession List, for the first time, on 23 April 2021 and was adjourned until 24 May 2021. On the first return date, the Defendant appeared in person by audio-link. On the adjourned date, he did not appear. Nor as will be read, did he appear at the hearing to oppose the orders being sought by the Plaintiffs. As will also be read, he has not filed an Appearance or a Defence to the Statement of Claim. Associated proceedings 1. Before leaving the factual matters that should be referred to by way of introduction, I should mention that there are other proceedings involving the estate of the deceased. These are proceedings, brought by Summons filed on 3 April 2020, by Linda Joy Newstead, in which she seeks a family provision order, under Ch 3 of the Succession Act 2006 (NSW), and an order for her costs of the proceedings. She also sought an order for a grant of administration. (I shall refer to the proceedings as "the family provision proceedings".) However, in an amended Summons, filed on 12 May 2020, Ms Newstead's claim for a grant of administration was omitted from the relief that she claimed, and the Plaintiffs and the Defendant are named as the Defendants. The amendment to remove this claim for relief was appropriate in all the circumstances as, by the time the amended Summons was filed, the Court had granted Letters of Administration to them. 2. (In the family provision proceedings, Ms Newstead asserts that she is a person with whom the deceased was living in a de facto relationship at the time of his death. In circumstances where the deceased left a Will in which she is not named as a beneficiary, that fact would not entitle her to obtain a grant of administration. Indeed, she had no interest in the estate that would entitle her to a grant of administration with the deceased's Will annexed.) 3. The family provision proceedings were listed in the Succession List, for the first time, on 17 June 2020 and it has been listed for directions on 11 subsequent occasions. Whilst, when required, the Plaintiffs in these proceedings have appeared by counsel, the Defendant in these proceedings has not appeared, except on one occasion being 23 April 2021, to which occasion I shall refer. On each occasion, since these proceedings were commenced, it has been listed consecutively with the family provision proceedings. 4. A number of interlocutory applications have been made, and dealt with, but the family provision proceedings have not been able to be listed for hearing, despite the requests to do so made on behalf of Ms Newstead, because the nature and value of the deceased's estate has not been able to be properly calculated, and most recently, because of the existence of the current proceedings. 5. As one of the reasons for the application made in these proceedings concerns the sale of the Minmi property, and as there is no dispute that Ms Newstead is in occupation thereof, it was necessary, during the course of the hearing, to consider whether, in the circumstances, a contract for sale, with vacant possession, could be entered into. 6. It is inevitable that the Minmi property will have to be sold. Ms Newstead is aware of this fact and consents to its sale. For the sale to be completed, and for vacant possession to be given to any purchaser, it will be necessary for her to vacate possession. 7. Even though no order for possession had been sought, Ms A Djukanovic of counsel, who appears for Ms Newstead, and who appeared at the hearing in order to assist the Court, very helpfully, provided copy correspondence that had passed between the legal representatives of Ms Newstead and the legal representatives of the Plaintiffs going to the issue of Ms Newstead vacating possession. A copy of the correspondence was, together, marked as Ex. P3. In summary, Ms Newstead consents to the sale of the Minmi property and has agreed to vacate the property "prior to the completion of the sale" leaving it "in a clean and tidy state". 8. I am, satisfied, therefore, that there is no impediment, in this regard, in dealing with the Minmi property if that property is vested in the Plaintiffs as administrators of the estate of the deceased. These proceedings 1. As stated, these proceedings were commenced by Statement of Claim filed on 10 March 2021. 2. No Appearance or Defence, by, or on behalf of, the Defendant has been filed. I am satisfied that he is aware of the proceedings as he appeared on 23 April 2021, by audio-link, at which time he stated that he did not know whether he would be obtaining legal assistance as "the estate is so small that to get my own representative would just be another cost…": Tcpt, 23 April 2021, p 3(04-05). He also stated that, although considering it, he had not then sought legal assistance (despite being a party named in the associated proceedings). 3. In view of the nature of these proceedings, and the likely costs that would be incurred in hearing the Plaintiffs' claims, it was suggested that he should make every effort to obtain legal assistance. In order to assist him, and with the consent of counsel in each of the two proceedings, the name of a solicitor, who is an accredited specialist in succession, was provided to the Defendant. 4. I adjourned the proceedings to 24 May 2021, in order for him to obtain legal assistance, and informed him that, on the adjourned date, if he was not legally represented, these proceedings would be likely to be set down for hearing. 5. At the hearing, there was evidence read that the Defendant had contacted the solicitor whose name had been provided but had chosen not to retain him to act in these proceedings. 6. On 24 May 2021, when the matters were called, there was, once again no appearance by, or on behalf of, the Defendant. As it appeared that the Defendant did not intend to appear to contest the Plaintiffs' claims, I was able to list these proceedings for hearing. The notations and orders made, in this matter, on 24 May 2021 were: "Notes the associated proceedings 2020/102357. Notes that no appearance and no Defence has been filed for the Defendant named in the Statement of Claim. Stands the proceedings over, for hearing, before Hallen J at 10:00 a.m. on Tuesday, 8 June 2021, with an estimated duration of 3 hours. Directs the Plaintiffs to inform the Defendant, in writing, of the date of hearing and file and serve an affidavit of service, in admissible form, relating to service of that notification. Directs that the Plaintiffs provide to Hallen J, in hard and soft copy, an outline of Submissions including an index of pleadings and affidavits to be relied upon at the hearing. Notes that the Plaintiffs are agreeable to the hearing taking place as a live hearing." 1. There was evidence read at the hearing that the Plaintiffs' solicitors sent several letters, each dated 27 May 2021, to the Defendant, noting that this matter had been listed on 24 May 2021, that he had not appeared, and that it had been listed for hearing on 8 June 2021. 2. I am satisfied that a copy of the notations, directions and order, was sent to the Defendant by the Plaintiffs' solicitors, under cover of a letter dated 27 May 2021 sent to him by express post; also, by email, sent to a number of different email addresses, including one that the Defendant had provided to the Court; and also by text message addressed to his mobile telephone number. 3. In addition, as the Defendant, a litigant in person, had appeared on 23 April 2021, and had provided his email address to the Court, there was the possibility that an Appearance would be filed. As such, for the benefit of the Defendant and any legal representative that he might retain, my Associate, at my request, sent the following email on 27 May 2021: "Dear Practitioners and Mr Pye, Mr Pye, these matters were in the Succession List on 24 May 2021 and there was no appearance by you or on your behalf. For your assistance, his Honour has asked me to send you a copy of the orders made in each matter. You should appear on the date referred to, by yourself, or if you can, by your legal representative." 1. A copy of the notations, directions and order made on 24 May 2021, referred to above, was attached to the email (as was a copy of the directions made in the family provision proceedings). 2. In addition, to all of the above, by email sent at about 6:45 p.m. on 4 June 2021, the Plaintiffs' solicitors provided the Defendant with a copy of Ms Hutchinson's affidavit of 4 June 2021 together with the Plaintiffs' Case Outline: Ex. P1. 3. At the commencement of the hearing, when the matter was called, there was no appearance, by, or on behalf of, the Defendant. My Associate also checked the audio-link through which the Defendant had appeared on 23 April 2021, but he was not then on the audio-link. Nor did my Associate receive any email from the Defendant stating that he wished to participate in the hearing. 4. Although the Defendant was served with the Statement of Claim, he has not entered an appearance (Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) rule 6.9 or filed a defence to the Statement of Claim (UCPR r 14.3). Pursuant to UCPR r 6.1, he is unable to take any step in the proceedings (including any appearance in court) without the leave of the court. He is not an "active party" in the proceedings (UCPR rule 1.2). (None of the exceptions in UCPR r 6.1(2) applies.) 5. Whilst a distinction may be drawn between "active" and "non-active" parties, I am of the view that the position of a non-active party should be considered, since the UCPR r 6.1 permits the Court to grant leave to take a step in proceedings (including any appearance in court) and because the Defendant is a person who may be adversely affected by the orders sought in the proceedings. 6. In Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877, at [41] – [44], I wrote: "UCPR rule 29.7 applies when a trial is called on. If any party is absent, the Court may proceed with the trial generally, or so far as concerning any claim for relief in the proceedings, or may adjourn the trial. There has been no application by the Defendants to proceed with the trial or to adjourn it. UCPR rule 29.7(4) provides that, if, in relation to any proceedings, the Defendant appears, but the Plaintiff does not appear, the Court may dismiss the proceedings. It is upon this sub-rule that the Defendants rely in making the application that counsel has made. A party is relevantly absent only if he, she, or it, had knowledge, or notice, of the hearing date, and is neither present, nor represented, when the matter is due to be heard. In NSW Trustee and Guardian as executor of the Will of Michael Robert Walsh (Dec'd) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681, I wrote, at [18] - [22]: 'The clear purpose of UCPR r 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside … In such a case there has been no valid trial at all. In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. A party is 'absent' within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. … Finally, on the question, I have not forgotten what I said in Smirski v Macander [2010] NSWSC 929 at [34]: It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8].' 1. The Defendant has been given more than enough opportunity to be heard in these proceedings, but he has chosen not to take advantage of the opportunities given to him. Nor has he filed a Defence to the Statement of Claim, or an Appearance, or sought the leave of the Court to take any step in the proceedings. Nor has he provided to the Court, or, it appears, to the legal representatives of the Plaintiffs, any adequate explanation for his non-appearance on all but one occasion, in these, and in the family provision, proceedings. As a non-active party, who has not sought the leave of the Court, he is unable to take any further step in the proceedings. 2. I considered whether the Court should adjourn the proceedings to give the Defendant one further opportunity to appear. However, it seems to me that there was no utility in doing so, in the absence of any reasons why he has not filed an Appearance or a Defence, and also why he has not appeared at the hearing. There is simply no reason to believe that he would be more likely to appear on any subsequent occasion to which the hearing is adjourned, than on this occasion. 3. In this case, there is some urgency in hearing and determining these proceedings, promptly because of the delay in having the estate properly administered. To date, it appears that the Minmi property has not been transmitted into the name of the administrators and it has not, therefore, been able to be sold. There is no irreparable damage, or hardship, to the Defendant as it is only his right to act as one of three administrators of the deceased's estate that is affected. 4. In addition, I must remember that there are the family provision proceedings, which have been on foot for over 12 months. The Plaintiffs in this case, who are two of the three Defendants named in those proceedings, and also Ms Newstead, the plaintiff in the family provision proceedings, have appeared throughout the numerous directions hearings and, undoubtedly, have incurred legal costs in doing so. The delay in having those proceedings heard and determined, has gone on long enough. 5. Naturally, I must have regard to the obligations imposed by s 56 to s 60 of the Civil Procedure Act 2005 (NSW). Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57, in turn, requires the Court to have regard to specified matters. Section 58 requires the Court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and to have regard to the provisions of ss 56 and 57. Section 59 requires the Court to, as far as possible, eliminate delay between the commencement of proceedings and their final determination. Section 60 requires the Court to endeavour to resolve issues in such a way that the cost to parties is proportionate to the importance and complexity of the subject-matter in dispute. 6. All of these sections recognise the fact that delay and case backlog are matters that affect not only the public cost in delivery of justice, but the court's ability to provide individual justice, and that the reforms introduced by the Civil Procedure Act promote the provision of individual justice notwithstanding that they may have adverse effects on the claims of individual parties in particular circumstances: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [37] (Allsop P). Also see UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 at [38] (Kiefel CJ, Bell and Keane JJ). 7. The Court is not required to indefinitely delay the completion of the hearing in these proceedings in the hope that the Defendant might change his mind and appear: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [182]-[186], [189]-[191]; Taylor v Taylor (1979) 143 CLR 1 at [4] (Gibbs J); [1979] HCA 38. Justice requires consideration to be given to all the parties. 8. The Defendant, who has been proved to be on notice of these and the family provision proceedings, as well as the hearing of these proceedings, has been afforded the opportunity to appear and to be heard. He has chosen not to do so. Whether through stubbornness, confusion, misunderstanding, fear of costs, or other emotions, he has not taken advantage of the opportunity to be heard. He must abide the consequences. 9. It follows that it is appropriate for the proceedings to be determined in his absence. Effect of not filing a Defence 1. Of course, because the Defendant did not file a Defence, within 28 days after service of the Statement of Claim or such other time as the Court directed for the filing of a defence, he is regarded as being "in default": UCPR r 16.2(a). 2. In addition, by his failure to file a defence traversing the allegations of fact in the Statement of Claim, each of those allegations of fact is taken to be admitted as against him: UCPR r 14.26(1). 3. Rule 16.1 of the UCPR provides that Part 16 applies to proceedings commenced by statement of claim. Pursuant to UCPR r 16.3, which deals with the case where a defendant is in default, a plaintiff may apply for judgment under UCPR Part 16 "according to the nature of his, or her, claim for relief" against the defendant in default. Unless the Court otherwise orders, such an application for judgment must be accompanied by an affidavit of service of the statement of claim and an affidavit in support of the application. UCPR r 16.10 provides that whatever the plaintiff's claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his, or her, statement of claim. 4. Part 17 of the UCPR deals with admissions. Rule 17.7 is in these terms: (1) If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions. (2) The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined. 1. In Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87, Heydon JA (with whom Spigelman CJ and Sheller JA agreed) wrote at [154]: "A party may admit allegations made in pleadings by the opposing party, and may do so either expressly or by non-traverse. The effect of such admissions is to narrow the issues in dispute: they can thus have the effect of restricting the evidence to be tendered and can prevent evidence being called to the contrary". 1. In the present case, the admissions have been made by non-traverse. Despite this, I have not determined the matter solely on the basis of admissions made in the pleadings. I am satisfied, otherwise, that the allegations of fact pleaded are supported by evidence. The Court has no reason to doubt, or question, the correctness of the evidence given in the affidavits that have been read in these, and the associated, proceedings. A summary of the Plaintiffs' claims 1. I shall not review all of the Plaintiffs' evidence in detail. 2. The Plaintiffs sought, and were granted, leave to rely upon a number of affidavits in the family provision proceedings, as well as affidavits filed in these proceedings, which demonstrated, clearly, the steps taken on their behalf to involve the Defendant in both proceedings, without success. 3. The Defendant has not engaged in the litigation at all; has not given instructions for the filing of any evidence in opposition to Ms Newstead's claim for a family provision order; did not participate in the settlement conference held on 9 June 2020; did not comply with orders made by the Court; has not agreed to participate in giving instructions to the solicitors acting on behalf of the estate in the family provision proceedings; has not participated in giving instructions for the sale of the Minmi property; has not complied with the requests of the estate's solicitors to sign documents to enable the Minmi property to be transmitted into the names of the three administrators and then sold; and otherwise has failed to attend their office to sign documents to deal with the administration of the deceased's estate. 4. There is other evidence that, in November 2020, a number of attempts were made to serve documents upon the Defendant at an address provided by him to the estate's solicitors at Glendale, New South Wales, only to be informed by a person who was there, that the Defendant did not reside there. The First Plaintiff, however, confirmed that the address he had provided was, in fact, his residential address. 5. On 5 February 2021, it was necessary for the Plaintiffs to obtain orders for substituted service in the family provision proceedings. Obtaining these orders took some time and required unnecessary expenditure of costs. 6. The Defendant has also not provided the original grant of Letters of Administration to the solicitors acting for the estate, despite several requests to do so. There is evidence of some conversations between the first named Plaintiff, Rebecca Pye, and the Defendant, in January 2021, in which the Defendant refused to provide the original grant of Letters of Administration "because you have just pissed the estate up the wall". This conversation suggests a breakdown of relations between, at least, these two administrators, which has led to the administration coming to a standstill. 7. The Defendant has not answered his mobile telephone, or responded to text messages, emails, or other correspondence, when attempts have been made to get in contact with him for the purpose of making arrangements to serve him with documents, including a notice of motion seeking the sale of the Minmi property. 8. There is also evidence given by Ms Hutchinson that she spoke to the Defendant on 21 April 2021, confirming to him that the matters were in the List on 23 April 2021 and asking whether he would consent to the orders sought by the Plaintiffs in these proceedings. She stated that the Defendant responded, "Absolutely not, not prepared to sign and give you an open cheque book … I'll sign the paperwork but I won't sign your paperwork as I'm not going to give you an open cheque book". He also said, "I don't need a lawyer. A lawyer is not needed in this estate at all. You are just a predator and don't act for the estate. What you have done is just predatory tactics." 9. What is clear from all of the evidence is that little, or no, progress, has been made in the administration of the deceased's estate since letters of administration were granted on 17 April 2020. It is at least, difficult, if not impossible, for the administration of the deceased's estate to be completed by the three administrators. 10. There has also been a delay in having the family provision proceedings heard and determined. The Legal Principles 1. I must next consider the jurisdiction of the Court to revoke the grant of administration as sought by the Plaintiffs. 2. Section 66 of the Probate and Administration Act 1898 (NSW) relevantly provides: "The Court may at any time, upon the application of any person interested in the estate - (a) revoke the administration already granted" 1. The section does not specifically provide for circumstances in which the grant may be revoked. It is a matter for the discretion of the court to be exercised where the court is satisfied that there is a good or convenient reason to do so. The grounds upon which the court may, in its discretion, revoke the grant are not closed. The discretion is broad and general. The proper exercise of the discretion will always turn on the particular facts of the case. As will be read, it is clear that the jurisdiction to revoke a grant is a supervisory, and a protective, one. 2. (Notwithstanding this statutory power, the court is also possessed of an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke or suspend its own grant for just cause.) 3. A grant of probate, or administration, is a judicial act, and becomes an order of the Court. A grant in common form, or a non-contentious grant, is usually made by a Registrar of the Court. It provides an authority to the administrators who are named in the document to deal with the assets of the deceased's estate as directed in the deceased's Will, or on intestacy, and to exercise the powers of the office of administrators. 4. However, a grant of administration in common form is not a final judgment and it is open to a Court exercising probate jurisdiction to revoke that grant at any time upon a proper case being established. The grant is in the nature of an interlocutory judgment: Caldar v Public Trustee [2003] NSWCA 187 at [5] (Handley JA, Ipp and Tobias JJA agreeing). The sorts of situation that can count as a "proper case" are not rigidly confined: Richardson v Rearden [2006] NSWSC 1252 (at [16] (Campbell J). 5. The principles upon which the Court acts in determining whether to remove an executor or administrator of an estate are well known and do not require detailed elaboration. The guiding principle was stated by Jeune P in In the Goods of Loveday [1900] P 154 at 156, which was followed in In the Goods of Galbraith [1951] P 422. 6. Whilst In the Goods of Loveday concerned an application in circumstances where the administrator of an estate could not be found, it was said, at 156, that in exercising the jurisdiction to revoke a grant of administration, a court must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate: "…After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient." 1. In Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), 8 May 1992, unrep) at 14-15, Powell J wrote: "That the Court possesses, and, when necessary and appropriate, will exercise, the power to revoke a grant which it has made - even after the death of the original grantee (see, Ayling, deceased January (1949) (UK) unreported, but noted Tristram and Coote's Probate Practice 24 Ed (1973) at 470) In re Gillard (1949) VLR 378) is undoubted, the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective. (See, for example Tristram and Coote op cit at 426-433; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed. (1982) at 335-339). It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as of course, or even as a matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case ( In the Will of Lamont (1881) 7 VLR (IP and M ) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In re Gillard (supra)). Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion." 1. More recently, in The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358, EM Heenan J, at [23] wrote: "There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it." 1. The principles, in New South Wales, have also been discussed in cases such as Mavrideros v Mack (1998) 45 NSWLR 80 and Bates v Messner (1967) 67 SR NSW 187. Both cases concerned where the grantee of the grant of letters of administration had persistently neglected, or refused, to carry out due administration. 2. For the purposes of this case, I need only refer to the principle set out in Mavrideros v Mack at [108] (Sheller JA) as follows: "In exercising the discretion to revoke a grant of probate, the question is whether the due and proper administration of an estate has been put in jeopardy or has been prevented by acts or omissions of the executor, or by matters personal to the executor, or by other matters establishing that the executor is not a fit and proper person to carry out the duties that the executor has sworn to perform. It is not a matter of getting close to the position of the grant being useless." Determination 1. The authorities referred to demonstrate that, in circumstances such as the present, there is power for the Court to revoke a grant of administration, on, amongst other grounds, the ground of persistent failure by a grantee to join in administering the estate, at least when such an application is brought by persons interested in the administration of the estate. In this case, the Plaintiffs, as co-administrators to whom the grant was made, and as two of the only three beneficiaries, named in the deceased's Will, are clearly such persons. 2. There is also authority for the proposition that it is unnecessary for the Court to find wrongdoing, or fault, on the part of the administrator who is sought to be removed. The guiding principle is whether the administration of the estate is being carried out properly. Put another way in the circumstances of this case, when looking at the welfare of the beneficiaries named in the Will of the deceased, is it in their best interests to replace one of the administrators? 3. In the present case, the deceased's estate is hardly complex and its administration, subject to the claim made for a family provision order, should have been completed before now. The evidence given by the Plaintiffs, which has not been contradicted, and which I accept, clearly demonstrates that the due and proper administration of the deceased's estate has been delayed by the persistent failure of the Defendant to actively participate, with the Plaintiffs, in carrying out the duties of administrators. The irreducible fact is that the grant of administration has become inefficient by reason of the failure of the Defendant to engage with the Plaintiffs. The parties appear to be incapable of reaching agreement on ordinary, and uncontroversial, matters in the administration of the estate. 4. Even if the Plaintiffs did not establish the failure of the Defendant to engage with them, there is sufficient for the Court to conclude that the Plaintiffs have made out a good arguable case about the issues that have been raised by them, allowing the court to exercise its discretionary power to remove the Defendant as one of the administrators. 5. If that were not enough, what appears to be the wholesale breakdown of relations between the Plaintiffs, or at least the first Plaintiff, and the Defendant, would justify the removal of the Defendant as one of the administrators. 6. I do not have to consider the deceased's choice of a designated person, or persons, to be the executor or co-executors since none of the parties were named as executors in his Will. 7. Having considered all of the evidence, I am satisfied that the due and proper administration of the deceased's estate has been placed, and will continue to be placed, in jeopardy, unless the Defendant is released from his administrator's duties and is removed from his office as one of the three administrators of the deceased's estate. The Relief that may be granted 1. Where administration has been granted to more than one person, and where one of the others is to be removed involuntarily for proper reasons, the usual practice of the Court is to recall and revoke the original grant, and make a fresh grant of administration, with the deceased's Will annexed to the remaining administrator or administrators. The revocation of the grant is a revocation in toto, not a partial revocation, and the fresh grant to the remaining administrators entirely supplants the former grant. 2. The question which then arises is what further orders, if any, should be made about the future representation of the estate. Here, the Plaintiffs as the applicants for revocation, also seek to be appointed as the administrators for the non‑administered part of the estate. They are the only other persons who have any right to apply for administration. They appear to be ready, willing and able, to continue to administer the estate according to law. Accordingly, the order revoking the existing grant of letters of administration should immediately be followed by a new order for a grant of fresh letters of administration to them alone. 3. (I do not think that there is practical inconvenience in doing this, even though there is a need for the Plaintiffs, as the continuing administrators, to make a fresh application. The matter will be referred to the Senior Deputy Registrar in Probate to deal with.) 4. To ensure that the Defendant, who has retained the original grant of the Letters of Administration, can no longer deal with the property in the estate, it is necessary for an order to be made for him to deliver up to the Probate Registry, for cancellation, the original grant that has been made. 5. I respectfully agree with the view expressed by Lindsay J in Riccardi v Riccardi [2013] NSWSC 1655 at [9] and [12], that (a) an order for grant of administration (whether by way of a grant of probate or a grant of letters of administration) is in the nature of an instrument of title; (b) an order for the revocation of a grant, coupled with orders for delivery up of the revoked grant and for the issue of a fresh grant, is likely, in most cases, to facilitate the due administration of an estate by removing a spent grant from circulation or, at least, making express, clear provision for its removal from circulation; and (c) the traditional approach is correct beyond argument. 6. In the present case, I do not think that it would be reasonable that the estate should bear the costs of the Plaintiffs' application. In my view, the cause of the application having been made may be placed at the feet of the Defendant and he should bear the Plaintiffs' costs even though he has not participated in the proceedings and is not an active party. It must have been apparent to him that the administration has been stultified by his lack of involvement and engagement, not only in these, but also in the family provision proceedings. 7. In addition, in my view, the Defendant ought reasonably to have obtained legal advice as to his position in regard to these proceedings. The Court endeavoured to assist him in that regard. I have little doubt that these proceedings have had to be heard, at least partly, due to the Defendant's failure to retain a legal representative to assist him to clarify the issues. 8. As there may be a difference between the costs, calculated on the indemnity basis, and the costs, calculated on the ordinary basis, any difference should be paid out of the estate of the deceased. 9. At the conclusion of the hearing, I indicated to those present that I would make orders revoking the grant of the Letters of Administration and make orders appointing the Plaintiffs as the sole administrators of the deceased's estate and that I would publish my reasons for coming to that view. Implicit in the orders is the removal of the Defendant as one of the three administrators of the deceased's estate. 10. A few days later, I provided the form of orders that I considered relevant. 11. The Court in Chambers: 1. Orders that the letters of administration with the Will dated 6 March 2003 of Gene Warren Pye annexed, granted to Rebecca Anne Pye and Jessie-Gene Pye, the Plaintiffs, and to Damon Harley Pye, the Defendant, on 17 April 2020, by this Court, be revoked. 2. Orders subject to compliance with the Probate rules of Court, that letters of administration with the Will dated 6 March 2003 of Gene Warren Pye annexed, be granted to Rebecca Anne Pye and Jessie-Gene Pye, the Plaintiffs, with all such powers as are necessary for the carrying out of their functions as administrators. 3. Orders that any requirement for an administration bond be dispensed with. 4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 5. Orders that within 10 days of these orders being made, the Plaintiffs serve a sealed copy of these orders on the Defendant. 6. Orders that within 7 days of these orders being served on him, the Defendant deliver up the original revoked grant of Letters of Administration made on 17 April 2020, to the Probate Registry, marked to the attention of the Senior Deputy Registrar in Probate to be placed in Court file 2021/168291. 7. Orders that the Defendant, by himself, his servants and agents be restrained from: 1. acting, or purporting to act, as a legal personal representative, or one of the legal personal representatives, of the deceased; and 2. holding himself out as entitled to act as a legal personal representative, or one of the legal personal representatives, of the deceased. 1. Orders that within 14 days from the date of service of the sealed copy of these orders, the Defendant pay over, transfer and relinquish to the Plaintiffs, as administrators, all the assets and property of the deceased in his possession, custody or power. 2. Grants liberty to the Plaintiffs to apply, in respect of making any further orders in respect of any issue about the sale of the Minmi property, in respect of any further vesting orders that may be required; and, in respect of other matters necessary to implement these orders. 3. Orders that the Defendant personally pay the Plaintiffs' costs of the proceedings, and in the event that he does not pay their costs, that those costs be deducted from the Defendant's share of the deceased's estate. 4. Orders that any difference between the Plaintiffs' costs calculated on the indemnity basis, and their costs calculated on the ordinary basis, payable by the Defendant, be paid out of the estate of the deceased. 5. Orders that these orders be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2021