Aliperti v Official Trustee

The application for the appointment of a representative 5 The second plaintiff, Elisabetta Aliperti, died on 2 October 1997. Nothing was done to deal with the consequences of her death upon the proceedings until a notice of motion was filed on 9 March 2000. In its original form, the notice of motion sought an order that Ralph Aliperti be appointed as administrator ad litem of the estate of Elisabetta Aliperti for the purpose of the proceedings. 6 The English Court of Chancery had jurisdiction to appoint a person as administrator ad litem if the person was willing so to act: Dean & Chapter of Ely v Gayford (1853) 16 Beav 561, 51 ER 896. However, it appears that with the adoption of statutory provisions which authorised the Court to appoint a representative in equivalent circumstances (Chancery Procedure Act 1852, s 44), the appointment of an administrator ad litem became rare and it became more usual to appoint a representative pursuant to the statutory provisions and rules of Court: see Butterworths Australian Legal Dictionary , entry for 'ad litem'. The English statutory provision became s 24 of the Equity Act 1901 (NSW), and a comparable provision is now found in Part 8 Rule 16 of the Supreme Court Rules. 7 Rule 16 is in the following terms: '(1) Where in any proceedings it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party - (a) order that the proceedings continue in the absence of a person representing the estate of the deceased person; or (b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceedings. (2) An order under subrule (1), and any judgment or order subsequently entered or made in the proceedings, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. (3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.' 8 In the present case the first plaintiff seeks to invoke Rule 16(1)(b), by the appointment of his son, Ralph Aliperti, to be the representative of his deceased mother, the first plaintiff's wife, in the proceedings. In Re Hart [1963] NSWR 627, 630, McLelland CJ in Eq observed that an order is never made where the proposed appointee is unwilling to act. In the present case, however, Ralph Aliperti has filed an affidavit which indicates that he is willing to act. In Re Hart McLelland CJ in Eq said that after the order has been made, the representative should be added as a party and described 'AB appointed by order dated --- to represent the estate of CD, deceased', and the words 'since deceased' should be added after the name of the party whose estate is represented by virtue of the order. 9 I have decided that an order should be made under Rule 16(1)(b) in the present case. The evidence is that by her last will Elisabetta Aliperti left the whole of her estate to her husband, the first plaintiff, and appointed him executor. The first plaintiff is the applicant and therefore necessarily consents to the order which is sought, and he has filed an affidavit purporting to renounce probate, swearing that he has not intermeddled in his deceased wife's estate. 10 It would therefore be open to Ralph Aliperti to apply to this Court for letters of administration c.t.a. However, the evidence is that the value of the estate does not warrant such application. Apart from insignificant personal effects Mrs Aliperti had no assets in New South Wales other than her claimed interest in the proceeds of sale of a half share in the Birchgrove property, the subject of the present proceedings. She had no liabilities other than contingent liabilities arising from these proceedings and other proceedings in this Court, No 2808 of 1996. 11 The first defendant does not oppose the application, though he says that the evidence that there are no assets in the estate, and the making of the order, reinforce his case for security for costs. 12 Rule 16 (3) empowers the Court to require that notice of the application be given to persons having an interest in the estate, before the order is made. In my opinion it is unnecessary for any further notification to be made in this case. The sole beneficiary under the last will of the deceased, her husband, is the applicant for the order under Rule 16. 13 The following appears to be the appropriate form of order: '1. I appoint Ralph Aliperti to represent the estate of Elisabetta Aliperti for the purposes of these proceedings. 2. I direct that the title to the proceedings be amended by adding as a plaintiff 'Ralph Aliperti, appointed by order dated 13 April 2000 to represent the estate of Elisabetta Aliperti, deceased', and that the words 'since deceased' be added after the name of Elisabetta Aliperti.'