SAVAGE v LUNN (AS EXECUTOR OF THE ESTATE OF JAMES LUNN) [1997] NSWCA 276

SAVAGE v LUNN (AS EXECUTOR OF THE ESTATE OF JAMES LUNN) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and SHEPPARD AJA 18 August 1997

[1997] NSWCA 276

Handley JA. On 24 February 1994 Hulme J made a grant under s 76 of the Wills Probate and Administration Act of special letters of administration of the estate of James Lunn. The deceased had died in 1912 and his executor by representation was a trustee company in Western Australia.

Proceedings had been pending in the Equity Division since 1989, seeking to assert a title on behalf of the estate to some shares in the Cardiff Coal Company. The defendants in those proceedings had objected to the competency of those proceedings in view of the absence of a legal personal representative to the estate of James Lunn. The legal advisers for the plaintiffs applied to the trial judge for the grant of special letters of administration to overcome this objection.

His Honour heard counsel for the defendants in the Equity proceedings on that application without deciding whether they had standing to object tothe grant. He made the grant and there was no immediate appellate challenge. Subsequently an application for leave to appeal from that decision was made by the defendants in conjunction with an application for leave to appeal from interlocutory decisions of Hulme J in the Equity proceedings.

Those summonses for leave to appeal were heard by this Court constituted by Clarke, Handley and Sheller JJA on 20 February 1995. Leave to appeal on some issues was granted but the Court declined to grant leave to appeal from the decision to appoint an administrator.

Now shortly before an appeal from Hulme J's final orders is to be heard by this Court, the appellants apply pursuant to Pt 51 AA r 4(4) for an extension of time in which to appeal as of right from the decision to appoint an administrator. There is every reason to doubt the standing of the appellants to challenge this decision and I refer to Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114 at 118 and the cases there referred to.