Dresler v Mrish [1999] NSWSC 249

New South Wales Supreme Court CITATION : Dresler v Mrish [1999] NSWSC 249 revised - 31/08/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3402/93 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 26 March 1999

Mark Oliver Dresler (P) PARTIES : George Mrish (D1) Lawhouse Pty Limited (D2) Registrar General (D3) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. J. Van Aalst (P) Mr. P. Newton (D) SOLICITORS : Hardings (P) Philip J. Beazley (D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 26 March 1999

3402 of 1993 MARK OLIVER DRESLER -v- GEORGE MRISH & ORS

1 MASTER: There is presently before the court a notice of motion by Donna Marie Mrish filed 12 March 1999. She seeks an order that she as the adminstratrix of the first defendant's estate be substituted for the first defendant and that she be allowed to participate in the hearing of the substantive proceedings, which have been specially fixed to be heard by me on 8 April 1999. 2 The plaintiff, Mark Oliver Dresler, is the son of the two persons of whose murder George Mrish, the first defendant, was subsequently convicted. The first defendant committed suicide in gaol on 29 July 1998. The substantive proceedings have been fixed for hearing on the basis that that hearing will consist of an assessment only and there will be no issue as to liability. 3 When the notice of motion was returnable before me on 12 March 1999 the evidence in support thereof was totally inadequate. The matter was, on the application of the applicant, stood over to this day, 26 March 1999, at 9.30am before me. It was fixed for 9.30am to suit the convenience of the legal representatives of the parties. When the matter came before me to-day the applicant was not in a position to proceed at 9.30. The matter was subsequently stood down until 10 o'clock. 4 The applicant has now applied for (but only one 3 March 1999), and has not yet been granted, administration of the intestate estate of the first defendant. However, there has been annexed to the affidavit of Philip James Beazley, the solicitor for the applicant, sworn 26 March 1999, an inventory of property said to constitute the estate of the first defendant. Item 4 in that inventory of property headed "Money in Banks or Financial Institutions" is described as "money held on trust by Hardings, solicitors, being proceeds of sale of the property known as 73 Adam Street, Guildford" in an amount of $140,000. That is the only item in respect of which any relief in the present proceedings is sought in which the estate of the first defendant might have any interest. Apparently that property at Guildford was sold by arrangement between the plaintiff and the first defendant and the proceeds of sale are being held on trust by the solicitors for the plaintiff. 5 Upon the intestacy of the first defendant it would appear that the applicant, as the widow of the first defendant, is entitled to the sum of $150,000 plus six thirteenths of the residue. The deceased left at least six infant children, possibly seven. Each of those children is entitled to at least one thirteenth of the residue. 6 It seems to me appropriate that the applicant should be allowed to be heard in relation to the substantive proceedings in order to represent the estate of the deceased, but only in respect to any asset the subject of a claim by the plaintiff in which the estate of the deceased might have an interest. The only such asset is that to which I have already referred, being item 4 in the inventory of property. Accordingly, any right of participation by the applicant in the hearing of the substantive proceedings should be limited to the plaintiff's claim in respect to that foregoing asset. The applicant should not be allowed a general right to participate in the proceedings concerning the claim of the plaintiff in respect to assets to which neither the applicant herself nor the estate of the deceased makes any claim. 7 I propose, therefore, to make a limited order of the nature which I have just outlined. 8 I make the following order: 1. I order that the applicant, Donna Marie Mrish, be permitted to represent the interests of the first defendant, now deceased, in relation to any claim by the plaintiff against the asset referred to in item 4 of the inventory of property which is annexure C to the affidavit of Philip James Beazley sworn 26 March 1999, but that the applicant not otherwise be permitted to participate in the proceedings. I certify that this and the preceding pages are a true copy of the reasons for judgment of Master McLaughlin