Re Estate Nitopi, deceased [2018] NSWSC 1560

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Nitopi, deceased [2018] NSWSC 1560 Hearing dates: 7 and 8 May 2018 Decision date: 17 October 2018 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Subject to allowing the parties to be heard as to the form of orders to be made, the plaintiff's statement of claim is to be struck out, with conditional leave to re-plead with the benefit of an order that the plaintiff represent the estate of the deceased in (derivative) proceedings designed to recover property of the deceased alleged to have been misappropriated by the defendants during the deceased's lifetime. Catchwords: CIVIL PROCEDURE — Court administration — Case management – Complex claims across jurisdictional boundaries – Management of proceedings to facilitate determination of real questions in dispute – Administration of deceased estate – Application for revocation of probate combined with derivative suit against executrix and beneficiaries designed to recover estate property allegedly misappropriated

SUCCESSION – Executors and administrators – Proceedings against executors and administrators – Application to represent estate in proceedings against executrix – Whether plaintiff is an appropriate party to represent estate – Where executrix declined to assert claims of the kind sought to be made by the plaintiff on behalf of estate – Plaintiff appointed to represent the estate at own risk as to costs – Consequential case management orders made Legislation Cited: Civil Procedure Act 2005 Guardianship and Administration Act 2000 (Qld) Limitation Act 1969 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Baldry v Jackson [1976] 2 NSWLR 415 Bird v Bird (No. 4) [2012] NSWSC 648 Bird v Bird [2013] NSWCA 262; 11 ASTLR 225 Blair v Curran (1939) 62 CLR 464 Coshott v Sakic (1998) 44 NSWLR 667 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 JD & KJ Zohs Properties Pty Ltd v Ferme [2015] SASC 55 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR Mao v AMP Superannuation Ltd [2018] NSWCA 72 National Trustees, Executors and Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Quek v Beggs (1990) 5 BPR [97 405] Ramage v Waclaw (1988) 12 NSWLR 84 Re Atkinson, deceased [1971]VR 616 Reichel v Magrath (1889) 14 App Cas 665 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 Steiner v Strang [2012] NSWSC 919 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Texts Cited: GD Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017) HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924) JD Heyden and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 8th ed, 2016) Category: Procedural and other rulings Parties: Plaintiff: Giuseppe Nitopi First Defendant: Cristina Francesca Pirrello Second Defendant: Rosaria Theoharopolous Third Defendant: Christina Nitopi Representation: Counsel: Plaintiff: D Liebhold First Defendant: JS Drummond Second Defendant: R White Third Defendant: FFF Salama