Sandra Elizabeth Lester v Terrence Myles Brown [2022] NSWSC 716

Supreme Court New South Wales

Medium Neutral Citation: Sandra Elizabeth Lester v Terrence Myles Brown [2022] NSWSC 716 Hearing dates: 5 and 26 May 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Equity Before: Hallen J Decision: See [128]. Catchwords: SUCCESSION – Probate of the Will granted to the Plaintiff and two Defendants – Application brought by Plaintiff for revocation of the grant and for grant to be made to independent administrator – Where due and proper administration of deceased's estate not able to be completed – Defendants are non-active parties who do not file an appearance, a defence to the Statement of Claim and who do not appear at the hearing – Form of orders – Whether to appoint independent administrator or simply revoke grant and make fresh grant to the Plaintiff – Little point in making grant to independent administrator as unlikely that Defendants would co-operate with her – Order for revocation of grant, with fresh grant to the Plaintiff – Consequential orders made relating to collection of known assets and repayment to the estate of amount said to be the subject of investigation Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-60 Probate and Administration Act 1898 (NSW) ss 40D, 66 Supreme Court Rules 1970 r 49 Uniform Civil Procedure Rules r 1.2, 6.1, 6.9, 6.10, 14.26, 14.3, 16.1-16.3, 16.10, 17.7, 29.7 Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bates v Messner (1967) SR (NSW) 187 Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 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 Kingdon v Kirk (1887) 37 Ch D 141 Lester & Ors v Lester & Ors; In the Estate of Dulcie Brown [2020] NSWSC 958. Mavrideros v Mack (1998) 45 NSWLR 80 Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), 8 May 1992, unrep) 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 Pye v Pye [2021] NSWSC 686 Riccardi v Riccardi [2013] NSWSC 1655 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Stone v Smith (1887) 35 Ch D 188 Taylor v Taylor (1979) 143 CLR 1, 4; [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 Walker v Walker; the Estate of Ngaere Joy Walker, late of Mortdale [2016] NSWSC 92 Texts Cited: Tristram and Coote's Probate Practice 24 Ed (1973) at 470 Ritchie's Uniform Civil Procedure (NSW) Category: Principal judgment Parties: Sandra Elizabeth Lester Terrence Myles Brown Paul Charles Brown Representation: Counsel: Dr H P Bennett (Plaintiff)