Thomas v Aplitt & Anor [2023] NSWSC 727

Supreme Court New South Wales

Medium Neutral Citation: Thomas v Aplitt & Anor [2023] NSWSC 727 Hearing dates: 8 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Equity Before: Hallen J Decision: See [106] Catchwords: PROCEDURE — Separate question — Oral application for determination of separate question relating to revocation of grant of Probate and a grant of letters of administration with the copy Will annexed to the Plaintiff — Whether suitable for separate determination — No dispute that the order for the hearing of the separate question should be made — Separate question ordered and determined SUCCESSION — EXECUTORS — REMOVAL AND DISCHARGE — REVOCATION OF PROBATE - Parties are siblings — Where the two Defendants are the substitute executors of the Will of the deceased — Deceased died in 1997 — Probate granted in November 2000 — Where the only significant asset of the deceased was a residential property — Where the Will required the deceased's estate to be collected, debts, funeral, and testamentary expenses to be paid, and the balance of the estate to be divided equally between her 6 children — Where one of the Defendants resided in the real property until about 2019 — Plaintiff seeks revocation of grant of Probate and her appointment as administrator and other relief against executors — Lack of due and proper administration of the estate — First Defendant consents to order for revocation of Probate and appointment of the Plaintiff to complete the administration — Second Defendant not an active party in the proceedings and did not appear at the hearing — Revocation justified as executors failed to fully administer the estate — Order for revocation of grant, with fresh grant of letters of administration with copy Will annexed to the Plaintiff Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 Supreme Court Rules 1970 (NSW), Pt 78, r 49 Trustee Act 1925 (NSW), s 11 Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Cases Cited: Bramston v Morris (Supreme Court (NSW), Powell J, 20 August 1993, unrep) Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; [1964] UKPC 2 Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593 Dickman v Holley; Estate of Simpson [2013] NSWSC 18 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Estate of Philip Mack (Deceased) [2022] NSWSC 1629 Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089 In re Gillard deceased [1949] VicLawRp 22; [1949] VLR 378 In the Goods of Loveday [1900] P 154 In the matter of Central Management (NSW) Pty Ltd (in liquidation) ACN 139 989 852 [2017] NSWSC 1258 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; [1960] HCA 94 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Riccardi v Riccardi [2013] NSWSC 1655 Sandra Elizabeth Lester v Terrence Myles Brown [2022] NSWSC 716 Southwell v Bennett [2010] NSWSC 1372 The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877 Category: Principal judgment Parties: Janice Millicent Thomas (Plaintiff) Jeffrey Arthur Aplitt (first Defendant) James Robert Keith Aplitt (second Defendant) Representation: Counsel: E Glover (Plaintiff) F F F Salama (first Defendant) No appearance (second Defendant)