Re Estate Schutt [2023] NSWSC 1159

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Schutt [2023] NSWSC 1159 Hearing dates: 25 September 2023 Decision date: 26 September 2023 Jurisdiction: Equity Before: Lindsay J Decision: Order that an application for review of a decision made by a Senior Deputy Registrar in Probate be dismissed with no order as to costs. Catchwords: CIVIL PROCEDURE – Registrars – Review of Registrar's decision under rule 49.19 of the Uniform Civil Procedure Rules 2005 – Claim by executor for management fees and commission – Registrar disallowed the executor's claim for management fees and allowed the executor's claim for commission – Registrar's decision upheld – No orders as to costs Legislation Cited: Probate and Administration Act 1898 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Lawteal Pty Ltd v Ofo [2005] NSWSC 984 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Category: Principal judgment Parties: Applicant (Executor): Williams Landers Schutt Respondent (Beneficiary): Margaret Yvonne Mills Representation: Counsel: Applicant: David Robert Legg Respondent: In person

Solicitors: Applicant: David Legg, Burridge & Legg Respondent: Self represented File Number(s): 2021/00051387

JUDGMENT

INTRODUCTION 1. Before the Court is a notice of motion filed on 6 June 2023 by the executor of a deceased estate seeking (pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 NSW) a review of a decision made by a Senior Deputy Registrar on 10 May 2023 to disallow a claim for $56,800 made by the executor for "management services" said to have been provided by him to the deceased during her lifetime. 2. The Registrar's decision was made in the course of dealing with a notice of motion for the passing of accounts filed by the executor on 6 October 2022, and amended on 10 May 2023, in response to a notice of motion filed (on 10 May 2022) by one of several residuary beneficiaries of the estate of the deceased seeking an order that the executor file and pass his accounts. 3. The effect of the amendment to the executor's notice of motion was to allow him to claim commission (under section 86 of the Probate and Administration Act 1898 NSW) despite earlier (in an affidavit sworn on 22 September 2022) having disclaimed any intention to do so. 4. In accordance with usual practice, an application for review of the Registrar's decision having been made, she provided to the Court and the parties a "Report to Court" (dated 18 July 2023) which provided formal reasons for her decision. 5. As the Registrar's Report explains, although she disallowed $56,800 of the sum (of $64,400) claimed by the executor for "management fees", she allowed him commission of $15,000. 6. No challenge has been made to the Registrar's decision to allow commission in favour of the executor. 7. Nevertheless, the Registrar's Report includes the following statement: "Although there is no specific review on the issue of commission [the Report addresses] the commission order as the exercise of discretion in relation to commission in this matter (both for executor in allowing commission and for the benefit of the estate in the amount actually allowed) included consideration of the various refunds that had been made to the estate."