Dyason v Hart [2001] NSWSC 943

New South Wales Supreme Court

CITATION : Dyason v Hart [2001] NSWSC 943 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 113923/99 HEARING DATE(S) : 15/10/01 JUDGMENT DATE : 15 October 2001

Arthur Laurence Dyason (P) Blanche Alice Hart (D1) Victor Mills (D2) PARTIES : Frank Cotterill (D3) Graham Lindsay Mills (D4) Peter Maurice Mills (D5) David William Mills (D6) Paul Anthony Mills (D7) JUDGMENT OF : Young CJ in Eq

COUNSEL : M B Evans (P) SOLICITORS : Hungerford Lehmann & Andrews (P) CATCHWORDS : SUCCESSION [74]- Administrator- Rival administrators proposed- Mediation results in two solicitors being acceptable to all parties- Whether court could or should appoint those solicitors as administrators. CASES CITED : Re Firns [2000] NSWSC 396 DECISION : Orders made.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST 113923 of 1999 YOUNG CJ IN EQ

Monday 15 October 2001 DYASON v HART

Judgment 1 His Honour: In this matter the contest was whether or not the plaintiff was the de facto husband of the deceased. The parties are the alleged de facto husband and the next of kin. After mediation, they have agreed as to the payment of costs and the split up of the estate. All persons who are affected are parties, the only complication being that the first defendant is under the control of the Protective Commissioner. However, the Protective Commissioner's representatives were involved in the mediation. 2 The agreement was that administration not be granted to either party, but to two solicitors. 3 For some years there has been doubt as to how far the Court can make such an order. In Re Firns [2000] NSWSC 396, I indicated that after a compromise between parties properly represented and at arm's length it was appropriate to grant administration to one of the official liquidators. The Court, I said there, plainly has power to grant administration whenever it considers appropriate to do so and to whom it considers appropriate to do so. Ordinarily, the grant is made to the next of kin who have the greatest interest in the estate. Ordinarily the grant should not be made to solicitors because there can be very real conflicts between acting for one of the parties and being administrator of the estate, and that is exacerbated when the solicitors on each side are made the administrator. 4 However, there is power to make such an order and in a situation where there has been a mediation, where there is a complete game plan for how the solicitors are to advance the estate, then there would seem to be no objection to doing it. 5 Accordingly, I make orders in accordance with the short minutes which I have initialled, dated and placed with the papers and I refer the matter to the Registrar to complete the grant.