Lord v Firns; Estate of Ronald Douglas Firns [2000] NSWSC 1021

New South Wales Supreme Court

CITATION : Lord v Firns; Estate of Ronald Douglas Firns [2000] NSWSC 1021 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 109217/98 HEARING DATE(S) : 09/10/2000 JUDGMENT DATE : 16 October 2000

John Frederick Lord and David John Kerr (P) PARTIES : Kenneth John Firns (D1) Ronald Douglas Firns (Junior)(D2) JUDGMENT OF : Young J

COUNSEL : C Bevan (Administrators) G Mackey (Solicitor) (Persons subpoenaed) SOLICITORS : Turner Freeman (Administrators) Tzovaras Legal (Persons subpoenaed) CATCHWORDS : SUCCESSION [263]- Getting in the estate- Subpoenas usually inappropriate method of discovering assets. LEGISLATION CITED : Conveyancing Act 1919, s 153 Trustee Act 1925, ss 5, 63 Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Elder v Carter (1890) 25 QBD 194 CASES CITED : Murphy v Murphy [1999] 1 WLR 282 National Employers Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 P v T Ltd [1997] 1 WLR 1309 Vandyke v Vandyke (1976) 12 ALR 621 DECISION : See paras 15 and 27.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

YOUNG J

MONDAY 16 OCTOBER 2000

109217/98 - LORD v FIRNS; ESTATE OF RONALD DOUGLAS FIRNS

JUDGMENT

1 HIS HONOUR: I have before me four applications in these proceedings, plus an allied application in Equity proceedings 3480/99 which will be the subject of separate reasons. These proceedings were a contested application for probate in the estate of the late Ronald Douglas Firns. The dispute was not as to the validity of the will, but rather as to who should administer the estate. The proceedings terminated in an agreement that two A-List liquidators be appointed administrators of the will cta. 2 In due course, a grant was made on 8 May 2000. 3 The administrators correctly say that they have a duty to get in the assets of the estate. They say that they have made enquiries and they have reasonable grounds to believe that the estate has assets in Papua New Guinea and Hong Kong, at least some of which have been irregularly transferred out of the name of the deceased. 4 In order to obtain these assets, the administrators wish to issue subpoenas. Motion A (filed on 4 September 2000) is an application to authorise subpoenas to be issued to people in Papua New Guinea and Hong Kong. Application B is to call on subpoenas issued locally to get this information. 5 Motion C (filed on 5 October 2000) is a motion by the person served locally with the subpoenas to set aside the subpoenas. Motion D (filed on 9 October 2000) is a motion by the administrators to seek directions. What I will call Motion E is in the Equity proceedings which are Family Provision Act proceedings in relation to the estate. 6 Motions A and C and the subpoenas that are called on in application B really raise the same point. That is, whether it is premature or procedurally bad to have such subpoenas issued in this suit at this time. 7 Mr Bevan, for the administrators, says that there is a duty on the administrators to get in the assets. They have a report from a Mr Richard Hill, who is a former business associate of the deceased. His report states that there are assets of the deceased in Papua New Guinea and particularly that there was a parcel of land in Port Moresby which was transferred out of the name of the deceased to another person after the deceased's death, seemingly by means of a transfer which had been signed before the deceased's death. 8 Assuming the law of Papua New Guinea is the same as the law in New South Wales, that transfer would have ceased to have any validity upon the death of the transferor: see Vandyke v Vandyke (1976) 12 ALR 621. 9 Mr Mackey for the persons subpoenaed, says that whilst the administrators may have the duty to get in the assets, they cannot issue subpoenas in the present suit for two reasons: