Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221

Supreme Court New South Wales

Medium Neutral Citation: Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) [2023] NSWSC 221 Hearing dates: In Chambers on the papers Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the Plaintiff, as administrator of the estate of Michael Galanis (also known as Michael Galanakis) be released from his undertaking to not distribute the one quarter share of the deceased's estate representing the share of Kyriakos Galanakis. (2) Declares that the Plaintiff may distribute the estate of Michael Galanis (aka Galanakis) as if Kyriakos Galanakis had predeceased the deceased, without issue, and that the one quarter share to which he would have been entitled had he been proved to have survived the deceased may be distributed to Konstantinos Galanakis. (3) Orders that, if Kyriakos Galanakis, or any issue, is established to be alive, then Konstantinos Galanakis shall repay to the administrator one half of the total amount distributed to him from the estate of Michael Galanis (aka Galanakis) to the intent that there will be an equal division between those brothers. (4) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased. Catchwords: SUCCESSION – Probate and administration – Where missing person, who is a beneficiary of an intestate estate was last seen in 1985 – Searches and enquiries then conducted in an attempt to locate missing beneficiary – Declaration of Crete municipal court that person "dead in absentia" – No contact with persons with whom the missing person would have been likely to communicate, including family members, being his sibling – No evidence that missing beneficiary is alive or dead – Whether administrator should distribute the share of the intestate estate upon the basis that the missing beneficiary is dead – Whether Administrator should be released from his undertaking given to the Court to not distribute the share of the intestate estate to which missing beneficiary entitled – Court satisfied that the Administrator should be released from that undertaking and that he would be justified in distributing the share of the intestate estate to which the missing beneficiary is entitled to the brother of the missing beneficiary – Order also made that the costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased Legislation Cited: Civil Procedure Act 2005 (NSW) s 71 Probate and Administration Act 1898 (NSW), s 76 Succession Act 2006 (NSW) ss 128, 129 Succession Amendment (Intestacy) Act 2009 (NSW) Supreme Court Act 1970 (NSW) s 11 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532 Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) [2016] NSWSC 1436 Application by NSW Trustee and Guardian; Estate of Esme Veronica Hennessy [2019] NSWSC 340 Application by Peter John Clark (Estate of John Andrew Wardell) [2022] NSWSC 798 Application of Harnett and Cutts [2016] NSWSC 427 Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 In re Lowe's Will Trusts [1973] 1 WLR 882 In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 In the Goods of Barker [1891] P 251 Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 Mondous v Canzoneri [2018] VSC 194 Nolan As Administratrix of the Estate of Barbara Nolan, deceased v Nolan (2011) 6 ASTLR 80; [2011] WASC 224 NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123 NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 NSW Trustee and Guardian (Estate of Peter Urso) [2013] NSWSC 903 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Gess; Gess v Royal Exchange Assurance [1942] Ch 37 Reidy as Court appointed Trustee [2021] NSWSC 836 Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 Russell v Russell [1956] P 283 The Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758 Yu Yee Luen v So Yu Lung [2022] HKCFI 2403 Texts Cited: L Tucker, N Poidevin QC and J Brightwell, Lewin on Trusts (20th ed, 2020, Sweet & Maxwell) Category: Principal judgment Parties: James Jordan as Attorney for the Estate of Michael Galanis (aka Michael Galanakis) (Plaintiff) Representation: Counsel: A G Todd (Plaintiff)