Grant MacDonald -v- Public Trustee of New South Wales [2007] NSWSC 1237

New South Wales Supreme Court

CITATION : Grant MacDonald -v- Public Trustee of New South Wales [2007] NSWSC 1237

HEARING DATE(S) : 17 October 2007 JUDGMENT OF : Associate Justice McLaughlin

EX TEMPORE JUDGMENT DATE : 17 October 2007

DECISION : 1. I order that the plaintiff have leave to file an amended summons in the form of the document annexed to the outline of plaintiff's submissions dated 11 October 2007, endorsed as A2. 2. I make no order in respect of the costs of the notice of motion filed by the plaintiff on 26 July 2007, to the intent that each party will bear his own costs thereof. 3. I order that the defendant not be entitled to recoup its costs of the aforesaid notice of motion filed on 26 July 2007 from the estate of the late Theresa Stapleton ("the deceased"). 4. I order that the notice of motion filed by the defendant on 27 July 2007 be dismissed. 5. I order that the costs of the aforesaid notice of motion filed on 27 July 2007 be the plaintiff's costs in the proceedings. 6. I order that the defendant not be entitled to recoup its costs of the aforesaid notice of motion filed on 27 July 2007 from the estate of the deceased. 7. I stand the matter over to 1 November, 2007 before the Registrar, for directions.

CATCHWORDS : Trusts and trustees. Intestate estate. Administrator fails to administer estate for almost forty years. Obligation of administrator to ascertain identity of persons entitled upon intestacy and to distribute estate to those persons. Failure of administrator to ascertain indentity of such persons, by way of next of kin inquiry or otherwise. Assets of estate transferred to Treasury, which seems now unable to locate those funds. Claim by a person entitled to share in intestate estate. Whether Plaintiff is entitled to claim on behalf of other persons so entitled or only on behalf of himself. Application by Plaintiff for leave to amend summons. Application by administrator for dismissal of proceedings. Administrator not entitled to recoup from estate its costs in respect to either application.