Kadiev v Petrov [2023] NSWSC 1031

Supreme Court New South Wales

Medium Neutral Citation: Kadiev v Petrov [2023] NSWSC 1031 Hearing dates: In chambers Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Equity Before: Meek J Decision: Order made pursuant to s 93 Probate and Administration Act 1898 (NSW) barring the claim of the defendant Catchwords: SUCCESSION — Executors and administrators — Distribution of estate — The plaintiff executrix is granted probate and publishes s 92 Probate and Administration Act 1898 (NSW) (PAA) notice — The defendant's solicitors serve a claim which is disputed by the plaintiff's solicitors — The plaintiff's solicitors serve a notice disputing claim pursuant to s 93 PAA — The plaintiff commenced proceedings seeking a barring order pursuant to s 93 PAA — The defendant consents to such order and the parties request the Court to make orders prior to the expiry of the 3-month period referred to in s 93 PAA — Judge makes requisitions regarding a privilege issue and for provision of submissions on jurisdiction — Parties belatedly respond to requisition but provide no submissions — Held Court has no power to make a barring order prior to the expiry of the 3-month period — However due to delayed response the 3-month period elapses and barring order is made SUCCESSION — Executors and administrators — Barring order pursuant to s 93 PAA — Discussion of conditions on which the Court may act to make a barring order — Consideration of whether the Court may make order prior to expiry of 3-month period or abridge the time at which the specified 3-month period may expire in any given case STATUTORY CONSTRUCTION — Consideration of principles regarding statutory construction — Consideration of text, purpose and context of the provisions of s 93 PAA Legislation Cited: Administration and Probate Act 1911 (Vic) Administration of Estates Act 1954 (NSW) District Court Act 1973 (NSW) Family Provision Act 1982 (NSW) Interpretation Act 1987 (NSW) Law of Property and Trustees Relief Amendment Act 1859, 22 & 23 Vict, c 35 Probate Act of 1890 Amendment Act 1893 (NSW) Probate and Administration Act 1898 (NSW) Public Trustee Act 1913 (NSW) Succession Act 2006 (NSW) Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) Trust Property Act 1862 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Application of Doolan [2023] NSWSC 320 Aviani v Loh (No 2) [2022] NSWSC 1148; (2022) 405 ALR 337 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 English v Stewart [2022] NSWSC 268 In re Bracken; Doughty v Townson (1889) 43 ChD 1 In re Long (deceased) [1951] NZLR 661 In the Will of Gibbon (1914) 31 WN (NSW) 163 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48 Kondratenko v Burec [2003] NSWSC 635 Ludwig v Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890 R v Moore; Ex parte Australian Workers' Union (1976) 11 ALR 449 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 Texts Cited: Hastings, Roland and George Weir, Probate Law and Practice (2nd ed, 1948, The Law Book Co of Australasia Pty Ltd) Janes, Stephen, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Zora Kadiev (Plaintiff) Betty Petrov (Defendant) Representation: Counsel: