Langusch v Public Trustee [2009] NSWSC 1251

New South Wales Supreme Court

CITATION : Langusch v Public Trustee [2009] NSWSC 1251 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 08/10/2009

JUDGMENT DATE : 19 November 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Procedure. Claim for delay of 19 years in finalising estate and therefore preventing an application to Crown for payment out from moneys passing to Crown as bona vacantia. - Consideration of duty to distribute. Claim dismissed as it was before any application for payment and therefore premature.

PARTIES : William Samuel Langusch v Public Trustee of New South Wales

FILE NUMBER(S) : SC 1541/2008

SOLICITORS : Mr Gordon A Salier for Public Trustee

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Thursday 19 November 2009

1541/08 WILLIAM SAMUEL LANGUSCH v PUBLIC TRUSTEE OF NSW JUDGMENT 1 HIS HONOUR: This is the hearing of a notice of motion filed 23 March 2009 by the Public Trustee of New South Wales seeking that the proceedings be struck out pursuant to Part 13, Rule 4 of the Uniform Civil Procedure Rules ('UCPR'). In the alternative, the motion seeks an order that the plaintiff give security, as he is resident outside the State. However, as evidence in respect of the second matter was not before the Court, the Court will only deal with the application for dismissal of the proceedings. 2 The proceeding is one which now has a statement of claim. The statement of claim was filed on 28 April 2009, following orders I made on 10 July 2008. Background 3 The proceedings are brought by the plaintiff, Mr William Langusch, in respect of the estate of the late Hilma Langusch, who died on 19 November 1987. Letters of administration of her estate were granted to the Public Trustee New South Wales on 22 March 1988. 4 The grant of administration annexes a will made by the deceased, but in fact it is not a grant of administration cum testamento annexo. 5 In her will dated 11 March 1968, Hilma Langusch, the deceased, gave her estate to her husband, William David Langusch. In the event that he failed to survive her, the deceased gave her estate to her husband's nephew, Theo Langusch. Hilma's husband and Theo Langusch predeceased her and it is clear that there was intestacy. 6 William Langusch is Theo Langusch's son. He is therefore a great nephew, by marriage of Hilma Langusch. He does not take on intestacy but he brings these proceedings because he alleges that there has been substantial delay by the Public Trustee of New South Wales in finalising the necessary next of kin enquiries before deciding that the estate passed to the Crown as bona vacantia. 7 In 1994 the Public Trustee of NSW decided to take no further action in respect of the next of kin enquiries, which it had been undertaking at that stage for some six years. Between 2000 and 2003 without having finally determined the entitlements as to intestacy, the Public Trustee paid various sums to the Commissioner of Unclaimed Money, Office of State Revenue. The total sum paid was $87,701.59. The monies remained in the Office of State Revenue until the Public Trustee decided to proceed further with their investigations and they in fact completed those next of kin investigations. On 2 April 2009 the Public Trustee certified the following: "I, Michelle Maynard, Legal Manager for the Public Trustee, certify that: