Jurasz v Cesna [2024] NSWSC 1315

Supreme Court New South Wales

Medium Neutral Citation: Jurasz v Cesna [2024] NSWSC 1315 Hearing dates: 27 September, 1 October 2024 Date of orders: 1 October 2024 Decision date: 01 October 2024 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Orders made for the proposed independent administrator to be appointed, revocation of an existing r 7.10 UCPR appointment, as well as other consequential and ancillary orders for the administration of the estate and the conduct of the defence of the proceedings. Catchwords: SUCCESSION — Family provision — Claim by stepdaughter of the deceased out of time — Deceased died intestate and was survived by her (allegedly estranged) sister, the current defendant — Main asset of the estate was a unit subject to a mortgage, which had subsequently gone into default, and the mortgagee had gone into possession and was proceeding to exercise its power of sale — Following various delays and disruptions to an application being made by any party for letters of administration, the plaintiff filed a notice of motion seeking to have an independent administrator appointed — Appointment made SUCCESSION — Administration of estates — Practice and procedure — Preservation of assets —Discussion of importance for parties legally interested in the administration of an estate to take prompt steps to identify, preserve and secure assets of the estate, especially in the context of actual or potential family provision proceedings — If such parties are stymied in that course, they should approach the Court in a timely manner seeking relief by way of an interim special grant SUCCESSION — Practice and procedure — Practical guidance — Parties and legal practitioners involved in estate disputes should, before commencement of proceedings, consider the nature of the relief sought and status of estate assets to ensure that any court process, if started, has some realistic prospect of yielding a practical outcome — Practitioners should have a "big picture" outcomes awareness in considering the overall forensic strategy of each case and what steps may be necessary to initially preserve property that is the source of any provision in the proposed action, with an eye to monitoring or reviewing matters or risks which may jeopardise meaningful outcomes from such property SUCCESSION — Administration of estates — Appointment of administrators — Status of the Law Society's List of Independent Administrators — List is a helpful resource to the Court, but it does not bind or compel the Court to only choose independent administrators from that list SUCCESSION — Administration of estates — Discussion of role of the NSW Trustee and Guardian in circumstances where estate property has vested in it pursuant to s 61 of the Probate and Administration Act 1898 (NSW) — Whether NSW Trustee and Guardian should be appointed over another independent administrator (solicitor) SUCCESSION — Representation of an estate — Proposed appointment of an independent administrator — On occasion separate appointments of representatives for an estate can co-exist, but they are not necessarily ideal — In such circumstances, there is a need to clarify the terms, nature and scope of the representatives' functions and also there may be need to address whether any of the representatives have or will likely have a right to indemnity from the estate or the facility to seek judicial advice APPEARANCES — It is not necessary for a defendant who has entered an appearance in proceedings to file a further notice of appearance to an amended summons Legislation Cited: Civil Procedure Act 2005 (NSW) NSW Trustee and Guardian Act 2009 (NSW) NSW Trustee and Guardian Regulation 2017 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Abu-Arab v NSW Trustee and Guardian [2014] NSWSC 954 Andrews v Hogan (1952) 86 CLR 223; [1952] HCA 37 Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 (2020) 104 NSWLR 199; [2020] NSWCA 269 Deigan as executrix for the estate of the late James Boyd Lockrey v Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853 GEL Custodians Pty Ltd v Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973 McCorquodale v Guth [2008] NSWSC 1420 Re Estate of Edith Macdougall [2013] NSWSC 990 Re Estate of the late Assim [2015] NSWSC 337; (2015) 106 ACSR 544 Reeves v Reeves (No 2) [2024] NSWSC 386 Texts Cited: Handler, Leslie and Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) Practice Note SC EQ 07 Category: Procedural rulings Parties: Katarzyna Jurasz (Plaintiff) Eileen Cesna (Defendant) Representation: Counsel: P Lowson (Plaintiff)