Application by NSW Trustee and Guardian Re Mountain [2018] NSWSC 419

Supreme Court New South Wales

Medium Neutral Citation: Application by NSW Trustee and Guardian Re Mountain [2018] NSWSC 419 Hearing dates: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Direct that the plaintiff forward to my Associate proposed short minutes of order in relation to the distribution of the estate. Catchwords: JUDICIAL ADVICE – Intestate estate – Whether it is appropriate that the administrator carry out further searches in relation to the existence of next of kin of the deceased Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW), s 50 Succession Act 2006 (NSW), Ch 4 Trustee Act 1925 (NSW), s 63(1) Cases Cited: Re Benjamin [1902] 1 Ch 723 Category: Principal judgment Parties: NSW Trustee & Guardian as administrator of the estate of the late David Alan Mountain (Plaintiff) Representation: Counsel: A Hill (Plaintiff)

Solicitors: NSW Trustee & Guardian (Plaintiff) File Number(s): 2017/00368075 Publication restriction: Nil

ex tempore Judgment 1. HER HONOUR: This is an application by summons filed by the New South Wales Trustee and Guardian as administrator of the estate of the late David Alan Mountain, seeking judicial advice pursuant to s 63(1) of the Trustee Act 1925 (NSW) as to whether the plaintiff should continue next of kin searches of the deceased, who died intestate on 31 July 2013 in New South Wales. The summons seeks, if the answer to that question is in the negative, an order that the plaintiff be at liberty to pay the estate of the deceased to the beneficiaries identified by the New South Wales Trustee and Guardian, what is referred to as a Benjamin order (a reference to Re Benjamin [1902] 1 Ch 723). 2. In the alternative, the plaintiff seeks the opinion, advice and directions of the court in respect of the facts set out in an affidavit sworn 26 October 2017 by Kelvin Kwan, a legal officer employed by the New South Wales Trustee and Guardian who has carriage of the present matter on behalf of the plaintiff. Read in support of the application is the affidavit of Mr Kwan to which is annexed an advice from Dr Simon Chapple of Counsel. Tendered as Exhibit A is a bundle of documents which were exhibited to Mr Kwan's affidavit. Also tendered have been various documents indicating searches that have been made.