GEL Custodians Pty Limited v The Estate of the late Geoffrey Francis Wells

No appearance (Defendant) File Number(s): 2013/31250

Judgment 1This judgment concerns the procedure to be followed in a claim for possession of land where the registered proprietor has died and there is no representative of the deceased's estate. 2On 16 November 2006 Geoffrey Francis Wells entered into a loan agreement with the Plaintiff to borrow $210,000. The loan was secured by mortgage over a property at 24 Curtin Street, East Maitland. 3The deceased died on 8 February 2009. Thereafter the loan fell into default. 4On 14 December 2012 a notice pursuant to s 57(2)(b) Real Property Act 1900 and s 88 of the National Credit Code was served on the NSW Trustee and Guardian. The Trustee and Guardian responded by letter dated 17 January 2013 saying that they had no record of the matter and did not administer the estate. The letter went on: Given the above the only action required is to acknowledge receipt of service pursuant to s 61 of the Probate and Administration Act 1898. Section 61 does not enable NSW Trustee and Guardian to undertake an active role in relation to a deceased estate, the object of the section being to maintain the status quo pending an executor or administrator being appointed by the Court. 5The Plaintiff issued a Statement of Claim on 23 January 2013. The Defendant was said to be "The Estate of the Late Geoffrey Francis Wells". Service was effected by leaving a copy of the Statement of Claim and a Notice to Occupier on the Land and also serving the NSW Trustee and Guardian. 6On 18 March 2013, when no defence was filed by any person, the Plaintiff obtained default judgment for possession of the land and in the sum of $208,813.83. Thereafter an application was made for the issue of a writ of possession. 7On 3 April 2013 the Court issued a Notice of Requisition outlining the Registrar's proposal to set aside the judgment on the basis that there had not been proper service on a representative of the deceased estate. Correspondence ensued between the Plaintiff's solicitor and the Registrar. 8On 13 May 2013 the Registrar wrote setting aside the default judgment of 18 March 2013 and dismissing the Notice of Motion for the issue of a writ of possession. In a letter providing the reasons for doing so the Registrar said: In circumstances where the deceased is the registered proprietor of the land, I am of the view that the general position enunciated by [Hodgson CJ in Eq in Atsas v Gertsch] applies. That is, there is no action against an estate prior to a grant of probate or administration and "the Public Trustee does not represent the estate for purposes for (sic) proceedings brought against the estate" [quoting from Atsas]. Therefore I do not accept that service on the Public Trustee of a Statement of Claim is sufficient service on a deceased estate in relation to which there is no grant of representation. I confirm my earlier view that section 61 of the Probate and Administration Act 1898 allows for a limited vesting only and does not allow the Public Trustee to represent the estate in legal proceedings. 9On 11 June 2013 the Plaintiff filed a Motion seeking a review of the Registrar's orders to the effect that the default judgment be set aside only to the extent that it constituted a judgment other than a judgment for possession of land. It was that Notice of Motion, in an amended form, that came before me for hearing. 10The evidence disclosed that the deceased died leaving three adult children and a person, named as the informant, who was said to be the deceased's de facto partner Nina Kowaltschny. 11A search of the Probate Division of the Court disclosed that there was an application for probate or letters of administration in respect of the deceased's estate. The solicitors acting in that matter were Renfrew Solicitors who were acting for Ms Nina Kowaltschny Wells. 12A letter from that firm said this: Ms Kowaltschny Wells acts in the capacity of Executor and as such is able to act on behalf of the Estate. We advise that we are the Solicitors on record for the administration of the Estate that the deceased instructed by Ms Kowaltschny Wells the de facto partner of the deceased. A grant of Probate has been applied for, however Mr Geoffrey Wells died intestate and as a result the Grant has been delayed. 13It is apparent that the writer of the letter displays some confusion. It is difficult to see how a grant of probate could have been applied for without there being a Will to prove. 14On 9 July 2013 the Plaintiff's solicitors wrote both to the NSW Trustee and Guardian and to Renfrew Solicitors enclosing by way of service the Notice of Motion of 11 June 2013 and pointing out the brief history of obtaining default judgment and its being set aside. 15On 18 July 2013 the Plaintiff's solicitor received an email from the officer dealing with the matter at the NSW Trustee and Guardian. That email relevantly said: My apologies for the further delay however we have uncovered an error which occurred prior to my first letter to Gadens on 17 January 2013 in this matter. Unfortunately our office failed to identify Mr Wells as having made a Will with us on back in (sic) 12 July 1984 when he lived in Ganmain (near Wagga Wagga). That Will is held here in our O'Connell St Office. We do appear to have been notified at some point in time of our client's death, which apparently occurred in February 2009, but there is no apparent record of the circumstances of that notification on our system nor as to what may have transpired thereafter. Given it is our usual practice to follow up once we are on notice of a death where we are a nominated executor and trustee, as is the case here, it may be the case that contact occurred with beneficiaries and other interested parties without being properly recorded. In any event I am in the process of having the relevant material scanned and sent to our Newcastle Branch Office for a follow up of the matter. Clearly now that we acknowledge we hold a will it will initially be a matter of ascertaining whether there was a more recent will made elsewhere, the extent of the estate and just what will be the appropriate course of action in the recently evolved circumstances. No doubt you may be of assistance including identifying beneficiaries nominated in the will and other relevant parties. I am cc'ing this e-mail to Mr Jim Cullen who is the Branch Manager of our Newcastle Office, for his attention when he returns from leave on Monday. The scanned material will be sent later today for his attention. On behalf of this Office please accept my apologies for this oversight and please be assured we will give careful consideration to assisting in the resolution of this matter. 16There was no response to the service of the Notice of Motion on Renfrew Solicitors. The only party who appeared at the hearing of the Motion was the Plaintiff. 17A review of a Registrar's decision is not an appeal and is not subject to the restrictions that apply to an appeal: Tomko v Palasty (No. 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50] and [52]. The Applicant does not have to demonstrate a material error of fact or principle in the Registrar's decision under review: In the Will of Sheppard [1972] 2 NSWLR 714; Hawkins v Barkley-Brown [2010] NSWSC 48 at [22]. 18The Plaintiff submits that service on the NSW Trustee and Guardian is sufficient service where there is no administrator of the deceased's estate and relies on s 61 Probate and Administration Act 1898 for that submission. Section 61 provides: 61 Property of deceased to vest in NSW Trustee From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England. 19The issue on the present Motion is the effect of s 61 and what it allows. The situation has been considered in a few cases although none concerns the right of a mortgagee to possession as a result of a default by the mortgagor. Although the statutory officer is now the NSW Trustee and Guardian I shall generally refer to the officer as the Public Trustee because almost all of the relevant cases were decided at a time when s 61 referred to the Public Trustee. 20The received wisdom had been that vesting in the Public Trustee was no more than "notional" and that the Public Trustee was "no more than the formal repository of the legal estate": Exp the Public Trustee; Re Birch (1951) 51 SR (NSW) 345 at 350 and 360-361, following In re Broughton (1902) 19 WN (NSW) 69 at 70. In Birch Street CJ said (at 350): In the judgment of the Privy Council in Chan Kit San v Ho Fung Hang [1902] AC 257 at 261 their Lordships referred to the established rule of law that "No action can be maintained in respect of a deceased estate except by a duly constituted administrator or executor," and this statement of principle obviously precludes the Public Trustee from taking any affirmative step in litigious proceedings unless and until administration has been granted to him. I think it equally follows, in view of the history of the Ordinary's position, that no action can be brought against him, and he is not a proper party to be joined to legal proceedings merely because of the terms of s 61 of the Act. 21However, the correctness of Birch was put in doubt as a result of the High Court's decision In Andrews v Hogan [1952] HCA 37; (1952) 86 CLR 223. In that case the issue was whether a Notice to Quit served on the Public Trustee was valid to terminate the tenancy. The tenant had died leaving a will naming her two sons as executors and sole beneficiaries but they had not obtained probate at the time of the proceedings. 22Dixon CJ said: [12] The first step I am disposed to concede, namely that the estate must be regarded as vesting in the Public Trustee so that a notice under s. 62 [Landlord and Tenant (Amendment) Act 1948] terminating the tenancy might properly be served upon him. This I think is the result of the decisions in England culminating in Fred Long & Son Ltd. v. Burgess (1950) 1 KB 115 and Moodie v. Hosegood (1952) AC 61. In the latter case it was not denied that the effect of a notice to quit served on the probate judge was to terminate the tenancy and the House of Lords accepted this position: see per Lord Morton (1952) AC, at p 69. 23McTiernan J said: [6] The appellant gave a notice to quit to the Public Trustee in pursuance of s. 62 of the Act in order to determine the weekly tenancy which Mrs. Denahy had held. The first question is whether that notice to quit was valid: that is to say whether the Public Trustee stood in any such legal relation that the giving of a notice to quit in due form to him would operate under the Landlord and Tenant (Amendment) Act to determine the tenancy. Roper C.J. in Eq. propounded in Foy v. Public Trustee (1942) 42 SR (NSW) 209; 59 WN 142 a limitation, imposed by the conditions expressed in s. 61, upon the capacity of the Public Trustee to represent the estate of a deceased person in proceedings in equity. Without in any way throwing any doubt upon that judgment, this Court is bound to say in the present case that the question as to the validity of the service of the notice to quit upon the Public Trustee is concluded by Smith v. Mather (1948) 2 KB 212. That is a decision upon s. 9 of the Administration of Estates Act 1925 (15 Geo. 5, c. 23) (Imp.), a provision not in terms identical with s. 61, but to which this section is analogous. The Court of Appeal decided that the service of a notice to quit upon the President of the Probate, Divorce and Admiralty Division was valid by virtue of s. 9: the reason was that the tenancy subsisted at the time of the death and under s. 9 vested in the President: a landlord who wished to bring to an end a contractual tenancy which was subsisting at the time of the death of the tenant ought to be able to serve a notice to quit to bring it to an end: however, the Court said that the President incurred no financial responsibility. By parity of reasoning, the giving of the notice to quit to the Public Trustee to bring to an end the tenancy of the premises held by Mrs. Denahy and subsisting at her death was warranted under s. 61 of the Wills, Probate and Administration Act: See also Moodie v. Hosegood (1952) AC 61. (at p237) ... [10] Upon receipt of the notice to quit the Public Trustee informed the appellant that he was "not administering" the estate of Mrs. Denahy: that he had "no interest in the premises to assert": that s. 61 did not "vest" the estate in him but declares only "that it is deemed so to be vested" (the words of s. 61 are "shall be deemed to be vested"): that the estate "is merely held during the hiatus of possession and the Public Trustee is merely the repository of the estate": that "in any contemplated proceedings the Public Trustee would not be a proper party": and that "he has no powers to exercise and no active duties to perform in connection with the estate of the deceased". It is not consistent with the Public Trustee's expressed attitude that he was not administering the estate or that he was holding it during the hiatus of possession merely as a repository or that he had no powers to exercise or no active duties to perform, to conclude that what he did was to surrender the tenancy. Whether or not all the assertions made by the Public Trustee are in harmony with s. 61 of the Wills, Probate and Administration Act, it is not necessary to decide. The Public Trustee did not intend to disclaim any capacity truly vested in him by the section: and in so far as what he says denies his competency to be the recipient of the notice to quit, it is erroneous in law, having regard to what is decided in Smith v. Mather (1948) 2 KB 212 . The Public Trustee was in law competent to be served with the statutory notice to quit which the lessor gave him. ... 24Fullagar J said: [11] ... The claimant's first step is that service of the notice to quit on the Public Trustee on 19th December 1949 was effective service of a notice to quit under the Landlord and Tenant (Amendment) Act. Now, it seems very clear that the tenancy subsisting between the claimant's vendor and Mrs. Denahy did not come to an end with the death of the latter on 6th April 1949. It was part of her personal estate, and, under English law, would have vested in the executors appointed by her will. Since, however, s. 61 of the Wills, Probate and Administration Act 1898-1947 applies to persons dying testate as well as to persons dying intestate, the tenancy vested in the Public Trustee. On conveyance of the freehold to the claimant on 4th July 1949, the reversion became vested in the claimant, but the tenancy remained vested in the Public Trustee. The words "lessor" and "lessee", by virtue of s. 8 of the Landlord and Tenant (Amendment) Act, include "successors in title". At this stage, therefore, there was in existence a lease, within the meaning of that Act, under which the claimant, as successor in title to his vendor, was lessor, and the Public Trustee, as successor in title to Mrs. Denahy, was lessee. (at p245) [12] The "lease" of the premises being vested in the Public Trustee, and he being the lessee of the premises within the meaning of the Landlord and Tenant (Amendment) Act, it would seem to follow that he must be the proper person to be served with a notice to quit under the Act. And this view has been accepted in analogous circumstances by the Court of Appeal in England in two recent cases. These are Smith v. Mather (1948) 2 KB 212 and Fred Long & Son Ltd. v. Burgess (1950) 1 KB 115. The main question considered in Smith v. Mather (1948) 2 KB 212 and in an earlier case of Thynne v. Salmon (1948) 1 KB 482 and Smith v. Mather (1948) 2 KB 212 have been overruled by the House of Lords in Moodie v. Hosegood (1952) AC 61. The decision of the House of Lords, however, does not seem to affect either Smith v. Mather (1948) 2 KB 212 or Fred Long & Son Ltd. v. Burgess (1950) 1 KB 115 as authorities for the proposition that, in the circumstances of the present case, service of a notice to quit on the Public Trustee would be effective service of a notice to quit under the Act. The position might be different if Mrs. Denahy's sons fell within the terms of s. 83 of the Act, but it is clear that they did not. The first step in the claimant's argument must be taken to be sound. 25There were other issues in Andrews v Hogan because of the need to comply strictly with the provisions of the Landlord and Tenant (Amendment) Act 1948 which gave particular protections to tenants (colloquially known as protected tenants) and contained strict requirements concerning Notices to Quit and where proceedings could be brought to obtain possession of a tenanted property. It was in respect of some of those requirements that Fullagar J went on to say this at [14]: [14] The position stated in Anderson v. Bowles [1951] HCA 61; (1951) 84 CLR 310 most probably needs qualification in a case in which the "lessee" for the purposes of the Act is the Public Trustee, because it may very well be that the Public Trustee is not personally liable for rent or for performance of the obligations placed on the lessee by the lease. But I can see no reason for thinking that his position is not otherwise covered by the passage cited from Anderson v. Bowles [1951] HCA 61; (1951) 84 CLR 310, at p 320. The Public Trustee's "lease" was "terminated", but he was still a lessee within the meaning of the Act and entitled, as such, to the protection of the Act. I would think that possession by Mrs. Denahy's sons was possession by him, and that the only way in which the claimant could obtain possession from him was by proceeding against him under the Act in a court of petty sessions. It could not, one would think, be correct to say that the Public Trustee was properly served with the notice to quit because he was the "lessee" of the claimant within the meaning of the Act, and to say at the same time that he was not the "lessee" against whom proceedings under the Act must be taken and to whom the protection of the Act was accorded. (at p246) 26Webb J and Kitto J came to the same view about the service of the Public Trustee. 27The Plaintiff relied in particular upon the passage at [14] in Fullagar J's judgment to show that a lessor could bring proceedings against the lessee to obtain possession of the property and that, by analogy, a mortgagee could do the same. 28On one view the decision in Andrews v Hogan does not go beyond the proposition that the Public Trustee was the appropriate person to be served with a Notice to Quit. The only judge to make reference to Birch was Dixon CJ and he did not disapprove it. Further, when doubting that the sub-tenants could be sued in an action for ejectment in the Supreme Court, he said (at 233): The special position of the Public Trustee could not affect this result, even if it be that, as a mere repository of the estate, his "capacity" does not extend to appearing an defending the action. 29However, both Fullagar J (in the passage set out in paragraph [25] above) and McTiernan J at [10] allowed for the possibility that the Public Trustee could, in an appropriate case, defend any proceedings which would follow the service of the Notice to Quit. 30Andrews v Hogan was followed in Perpetual Trustee Co. Ltd v The Public Trustee (1956) 73 WN (NSW) 546. In that case the tenant had in breach of the lease sub-let a portion of the premises. The tenant then died and no grant of administration had been made in her estate. The Notice to Quit was served on the Public Trustee and proceedings were brought naming the Public Trustee as defendant. The Public Trustee did not appear at the hearing but the sub-lessee did appear and contested the application for possession as the Landlord and Tenant (Amendment) Act 1948 enabled him to do. The Magistrate made an order in favour of the lessor, and the sub-lessee brought a stated case alleging that because he, the sub-lessee, should never have been made a party to the proceedings, the proceedings were misconceived and the Magistrate was not entitled to hear and determine them. 31Owen J (with whom Herron and Ferguson JJ agreed) said: Having regard to the fact that the appellant himself became a party to those proceedings by exercising his statutory right to appear and to be heard, I have some doubts whether it lies in his mouth to make the objection, but it is unnecessary to decide this since, in my opinion, the Public Trustee is, in circumstances such as existed here, a person against whom a summons may issue and upon whom it may be served. It is true that in a number of cases opinions have been expressed that where the assets of a deceased person have vested in the Public Trustee only by virtue of s. 61, he is not liable to be joined as a party to proceedings against the deceased estate (see for example, Re Broughton); Foy v. Public Trustee; Ex parte Public Trustee; Re Birch), but since the decision of the High Court in Andrews v. Hogan it is clear that he is a person to whom a notice to quit may properly be given, and it seems to me necessarily to follow that if he does not comply with the notice he may be made a respondent to the proceedings which must be taken by a lessor to recover possession of prescribed premises. An examination of the reasons of their Honours in Andrews v. Hogan shows that at least two members of the Court, namely, Fullagar J and Kitto J., expressly stated that this was so and it seems to me that the proposition is implicit in the reasons of the other members of the Court. 32In Ex parte Callan; re Smith [1968] 1 NSWR 443 Isaacs J was considering the validity of a Notice to Quit served by the executor of a deceased landlord who had not obtained probate of the will. His Honour made particular reference to each of the judgments in Andrews v Hogan and to a number of other decisions involving deceased tenants in landlord and tenant proceedings. His Honour then went on to say this (at 447-448): Now it is true that all the above passages to which I have referred deal with the situation of the Public Trustee in relation to the estate of a deceased tenant, but in my view they apply with equal force and validity to the Public Trustee in respect of the estate of the landlord in that relevant period. I can see no valid reason for distinguishing between his powers in relation to the legal estate of the landlord from his powers vis-a-vis the deceased tenant's estate. If the Public Trustee in this interval as the repository of the legal estate of the tenant can validly terminate the tenancy on behalf of the tenant by surrender (Andrews v. Hogan (1952), 86 C.L.R. 223, and Dykes v. Gerke, [1963] N.S.W.R. 721; 62 S.R. (N.S.W.) 496), why can he not, where he represents in that interval the lessor instead of the lessee validly terminate the tenancy by an appropriate instrument of termination viz. a notice to quit? I am unable to discern or discover any valid or logical reason why a power to terminate vested in him vis-a-vis the tenant, should be denied to him when representing the landlord, albeit that the mode of termination is different in each case. It would be extremely odd if it were otherwise, as well as illogical. The legal estate of the landlord vests on his death and until probate in the Public Trustee and if it be necessary for the purposes of administration before grant to give a notice to quit to a tenant then only the Public Trustee is in the situation to do this and no one else. Of course the Public Trustee might consider the authorizing of an agent or some other person including the executor-elect to give a notice to quit or lay the information but any such authority would have to be proved. In this case no such authority existed. It is perfectly clear that in the interval between death of the lessor and grant of probate no one other than the Public Trustee might issue a notice to quit and it follows quite clearly that the executor named in the will has no such power or authority. 33These three cases are clear authority for the position of the Public Trustee with regard to Notices to Quit in tenancy matters. It is then necessary to decide if, by analogy, they can be applied in proceedings claiming possession by reason of a default in a mortgage. Coupled with that is the question whether the Public Trustee can be named as a defendant in such proceedings relying on s 61. 34In Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 a notice exercising an option was served on the executrix of the grantor after the grantor died and before the executrix obtained probate. At issue was whether the notice was properly served. Although the three judges who heard the appeal agreed in the result only Gibbs J discussed the question concerning s 61. He said (at 77-78): There is no doubt that at the time when the notice was given the estate of the deceased had by virtue of the operation of s. 61 become formally vested in the Public Trustee, although it is not altogether clear what capacity and powers the Public Trustee had as a result: cf. Holloway v. Public Trustee (1959) SR (NSW) 308, at p311. At the date of the hearing, however, probate had been granted and s. 44 had taken effect; the estate of the deceased was then vested in the appellant whose title had related back to the time of death. Moreover, although s. 61 provides for the vesting of the deceased's property pending probate, it does not alter the rule that an executor derives his title from the will and that the probate merely authenticates his title and is not the source of it. At the time when the notice was given the appellant was therefore the executrix of the deceased's estate and in that capacity was competent to receive the notice exercising the option; the fact that the property of the deceased was not then vested in her provides no reason why she could not do so. In support of the argument that the notice was not properly given to the appellant reliance was placed on Holland v. King [1848] EngR 1017; (1848) 6 CB 727 (136 ER 1433). In that case a partnership deed provided that the executor or administrator of a deceased partner should have the option of succeeding to that partner's share upon giving notice to the surviving partners within three months of the death. A partner died intestate and his widow gave notice to the surviving partners within the three months but did not obtain letters of administration until after that period had expired. It was held that there was no effectual notice under the deed. No reasons were given for the decision but it may be explained on the ground that when the notice was given it was of no validity, since the widow was not then the administratrix of the deceased partner, and that it could not be ratified by the administratrix after the time allowed for the exercise of the option had expired: see Dibbins v. Dibbins (1896) 2 Ch 348. In the present case, however, no ratification was necessary. The appellant was the executrix at the time when she received the notice and was therefore the appropriate person to receive it. In any case, she did not perform any act which required ratification; she was merely the recipient of the notice. Reliance was also placed on Andrews v. Hogan [1952] HCA 37; (1952) 86 CLR 223, where a notice to quit was held validly served on the Public Trustee as successor in title to the estate of a deceased tenant, but that case is distinguishable, first, because the question there was in whom the premises had vested and secondly, because in that case no probate was ever granted. The conclusion that the notice was properly given to the appellant in the present case is supported by the actual decision in Carter v. Hyde [1923] HCA 36; [1923] HCA 36; (1923) 33 CLR 115, although this question does not seem to have been discussed; the notice exercising the option was there given by the executors of the deceased grantee although, as the learned trial judge in the present case has pointed out, it appears from the report of the proceedings in the Supreme Court of New South Wales (Hyde v. Carter [1922] NSWStRp 69; (1922) 23 SR (NSW) 125, at pp 128, 140 ) that probate was not granted until after the notice had been given. For these reasons, in my opinion the notice given to the appellant will have been effectual for the purpose of exercising the option if the option was valid and its other requirements were satisfied. (at p78) (emphasis added) 35The highlighted passage has been doubted: Bone v Commissioner of Stamp Duties (1974) 132 CLR 38 at 46 and 54; Marshall v D G Sundin & Co Ltd (1989) 16 NSWLR 463 at 467- 468 and 471; Darrington v Caldbeck (1990) 20 NSWLR 212 at 218; Byers v Overton Investments Pty Ltd [2000] FCA 1761 at [55]. It is that passage which provides the justification for the conclusion reached that service on the named executrix was effectual although no grant had been made. The corollary is that Laybutt tends to diminish the importance of the vesting of the estate in the Public Trustee and gives that vesting less operation. 36In Re Cameron; Cameron v Public Trustee [1982] WAR 55 the Plaintiffs brought an action seeking due administration of the estates of several deceased at a time when no personal representatives of some the deceased had been appointed. The Plaintiff sought to bind the estates of the several deceased, for whom no representation had been made, by joining the Public Trustee and by alleging that pursuant to s 9 Public Trustee Act (WA) 1941 (the equivalent of s 61 of the Probate and Administration Act) the unrepresented estates of those deceased were vested in the Public Trustee. The Public Trustee filed a summons seeking dismissal of the Plaintiff's cause of action against it. The Master, before whom the summons came, held that as a result of Andrews v Hogan and Perpetual Trustee Co. Ltd v The Public Trustee it was arguable that the Public Trustee was properly joined as representative of the estates. 37An appeal was brought to Wallace J who said (at 57): Until Andrews v Hogan, there does not appear to be any doubt as to the limitations imposed by the conditions expressed in s 9 upon the capacity of the Public Trustee to represent the estate of a deceased person in proceedings in equity. His office was a mere repository at which a Notice to Quit terminating a lease of a deceased party may have been left. However, the learned Master was of the opinion that the reasons expressed in Andrews v Hogan resulted in the true position being "arguable". With respect, I do not agree. 38Wallace J then went on to discuss what had been said in Andrews v Hogan by saying that Fullagar J's statement that the Public Trustee was empowered to surrender a statutory tenancy was obiter and did not accord with the reasons expressed by the other Judges. He said that no Judge in Andrews v Hogan threw doubt upon the authority of Ex parte Public Trustee; re Birch. I shall return to the authority of Birch presently. 39Wallace J made reference to the statement of McLelland CJ in Eq in Re Jay Hart Deceased; Smith v Clarke [1963] NSWR 627 at 631 where his Honour said: I do not think that in suits like the present the Public Trustee should be treated as representing the estate of a deceased person whose interest is sought to be bound. It should be noted, however, that the suit in Re Jay Hart was a construction suit. 40Wallace J went on to say (at 58): Further, on appeal question of construction and having regard to the opening two lines to section 9 of the Act I am of the opinion that it was never intended that the administration of a deceased person's estate should rest in the Public Trustee other than for the momentary holding purpose prevailing between death and the point of probate or administration and to satisfy the need to give ownership to real and personal estate. 41The continuing authority of Birch is far from clear. In Ex parte Newlands Brothers Pty Ltd; Re Kenniff (1955) 56 SR (NSW) 35 the Full Court of the Supreme Court said (at 38) that "Birch can no longer be regarded as laying down the law correctly", and Walsh J in Holloway v Public Trustee (1959) 59 SR (NSW) 308 said (at 311) that Birch "had been superseded by Andrews v Hogan and Perpetual Trustee Co Ltd v Public Trustee". Yet in Perpetual Trustee Owen J (with whom Herron and Ferguson JJ agreed) said (at 547): Before leaving this aspect of the case, however, I would add that I am unable to agree with the broad statement in Ex parte Newlands Brothers Pty Ltd; Re Kenniff that since the decision in Andrews v Hogan, Birch's case "can no longer be regarded as laying down the law correctly". It is, I think, too widely stated. Somewhat ironically, Herron J sat in both Kenniff and Perpetual Trustee. 42In Scallan v Scallan [2001] NSWSC 1129 Windeyer J was asked to strike out or stay proceedings brought by one executor against the other before a grant of probate had been obtained. The plaintiff in Scallan argued that since the estate of the deceased was deemed to be vested in the Public Trustee and that the Public Trustee was unwilling to take the proceedings she should be entitled to bring them on behalf of the estate. Windeyer J invoked the authority of Birch to hold that s 61 did not empower the Public Trustee to take proceedings before the executor obtained a grant. 43His Honour said of the Plaintiff's argument: [12] I do not consider that this argument has substance. Without going into the matter in detail, I consider it is established by ex parte The Public Trustee re Birch (1951) 51 SR NSW 345 that the fact the estate of the deceased before grant is deemed to vest in the Public Trustee "in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary" does not mean that the Public Trustee has power, in respect of the estate of a deceased person before grant of administration, to bring an action to recover property transferred as a result of undue influence or unconscionable conduct. Andrews v Hogan (1952) 86 CLR 223, which held that a notice to quit can be served on the Public Trustee, and perhaps that the Public Trustee has capacity to surrender a lease, does not go so far as to hold that the Public Trustee would be empowered under s61 to commence the action the plaintiff purports to bring as representative of the estate. In Foy v Public Trustee (1942) 64 SR (NSW) 209 at 211, Roper J held there was no such power. As power to take possession of assets and to hand them to the administrator for distribution does not extend to power to pursue a chose in action in Court proceedings; refusal to do so cannot be relied upon as a ground to entitle a beneficiary to take proceedings on behalf of the estate. It must be remembered that limited grants for the purpose of bringing actions can be made in appropriate circumstances. Assuming that the chose in action is vested in the Public Trustee (which it is) and the Public Trustee has power to take action to recover it, (which he has not) it would not be appropriate for a beneficiary in the estate to take action on the basis that the Public Trustee refused to do so. The appropriate course would be to apply for a limited grant for appointment of an administrator ad litem who would then pursue the claim. [13] I consider the proceedings to be a nullity. ... 44With regard to Windeyer J's reliance on Foy v Public Trustee (1942) 64 SR (NSW) 209 it should be noted that in Andrews v Hogan McTiernan J expressly said at [6] he was not "in any way throwing any doubt upon" Foy. 45Further Dixon CJ in Andrews v Hogan appeared to doubt the appropriateness of the Public Trustee being named as a defendant simply because of s 61. That doubt is at least consistent with the view expressed in Birch. 46In Atsas v Gertsch [1998] NSWSC 522 the Plaintiff commenced proceedings against the administrator of the estate of the late Ludwig Gertsch who died on 19 October 1990. Letters of administration were granted to the Defendant on 26 September 1995 and the proceedings were commenced on 25 June 1997. The Defendant pleaded the Limitation Act 1969. The issue to be determined in that regard was whether time ran prior to the appointment of the administrator. 47Hodgson CJ in Eq first noted that, apart from the question of whether there was an available defendant, the cause of action arose at the latest upon the death of Mr Gertsch. He then considered whether time ran where an action was in favour of an estate. He said that an action could not be commenced by an administrator until the actual appointment of the administrator: Gertsch v Roberts (1993) 35 NSWLR 631 at 635 and the cases collected there. He went on: Turning to the position in relation to actions against the estate, based upon causes of action arising upon or after the death of the deceased, I accept Mr. Lovas' submission that the effect of the cases cited by him is that The Public Trustee does not represent the estate for the purposes of proceedings brought against the estate: it is true that Andrews v. Hogan and Perpetual Trustee Co. v. Public Trustee established that a Notice to Quit could be served on The Public Trustee, but that concerned providing a landlord with a remedy in rem to recover possession of land subject to a tenancy held by the deceased. The defendant also relied on Pt.8 r.16 of the Supreme Court Rules, which is in the following terms: 8.16(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. That rule contemplates that there are already proceedings on foot, and that it appears that a deceased person or the estate of a deceased person is interested in some matter in question in those proceedings; and it provides that, if the Court makes an order under the rule, the estate will be bound. I have not been referred to any authority which suggests that the rule can be used where there is no defendant to proceedings unless and until an order is made under the rule; and in particular where it is sought to make a claim for money against the estate, as sole defendant, and to execute against the estate if the proceedings are successful. I think it is doubtful whether that rule would justify that kind of order in such a situation; and I do not think the existence of that rule means that a cause of action accrues against the estate of a deceased person prior to the appointment of a legal personal representative. Similarly, the ability of a creditor to seek the appointment of an administrator under the Wills Probate & Administration Act does not, in my opinion, mean that a cause of action is complete prior to any such appointment being made. (emphasis added) 48Both Marshall (supra at 473) and Darrington (supra at 218) reached a similar conclusion in relation to the right of an executor to commence proceedings before a grant was made. 49The Plaintiff submits that Hodgson CJ in Eq was making a distinction between claims in rem and monetary claims. The submission was that Hodgson CJ in Eq was affirming the right of the claimant to proceed against the estate for possession notwithstanding the absence of an administrator. Whilst such a view is open, Hodgson CJ in Eq, like Windeyer J in Scallan and Wallace J in Cameron, seemed to regard Andrews v Hogan and Perpetual Trustee v Public Trustee as limited to a decision on the right to serve a Notice to Quit on the Public Trustee. The principal support for that limitation is that the authorities relied upon by the High Court (Fred Long & Son Ltd v Burgess [1950] 1 KB 115, Moodie v Hosegood [1952] AC 61 and Smith v Mather [1948] 2 KB 212) were just such cases. 50In Byers v Overton Investments (supra) proceedings were commenced on 30 August 1999 in the Federal Court with the applicant said to be "Estate of Desmond Scott". Leave was given to file an amended application and that was done on 3 December 1999 where Lowana Byers was the applicant. She pleaded in the Statement of Claim (filed with the amended application) that the applicant was the executor of the estate of Desmond Scott. Mr Scott had died on 23 November 1998 but Ms Byers did not obtain a grant of probate of his will until 19 October 2000, that is, after the time of the commencement of the proceedings. 51The Respondent by motion sought that the proceedings be summarily dismissed on the ground that the proceedings were a nullity because probate had not been granted at the date of death. Emmett J reviewed many of the cases I have referred to above and agreed that the executor could not bring the proceedings. He added this at [55]: Subject to the possibility of an administrator ad litem, the only legal persona who had title to commence a proceeding such as that presently before me was the Public Trustee. That statement is not able to be reconciled with the decisions in Scallan, Foy and Atsas v Gertsch. 52The result of these cases is that an executor cannot bring proceedings prior to obtaining a grant. Nothing in the cases (Byers excepted) suggests that any powers the Public Trustee acquires by virtue of the deemed vesting in s 61 extend to the institution of proceedings. As the Full Court said in Kenniff (at 40): The object of s 61 of the Wills, Probate and Administration Act is to put the title in the Public trustee and hold the position in status quo until a personal representative is appointed... 53In Bone (supra) Stephen J said (at 46): The deemed vesting of a deceased's estate in the Public Trustee may confer upon him only limited powers and these may not include any power to sue for debts owed to the deceased....However, for present purposes it is unnecessary to determine the extent of the power of the Public Trustee; it is the negative aspect of s 61 that is of relevance, the fact that upon death the executor does not become the competent plaintiff to sue for the debts of the deceased, it being irrelevant that, if such be the case, there is for the time being no competent plaintiff at all. (emphasis added) Interestingly, one of the authorities Stephen J cites for the proposition in the first sentence of that passage is Birch. 54Although Emmett J in Bone made reference to this passage in the judgment of Stephen J he, nevertheless, expressed the view concerning the Public Trustee's title to sue that I have set out at [51] above. With the greatest of respect to Emmett J the statement seems to me to be contrary to authority. 55As far as proceedings being brought against the Public Trustee are concerned, Dixon CJ in Andrews v Hogan, Birch, Cameron and Atsas v Gertsch say that proceedings cannot be taken against the Public Trustee simply as a result of s 61. Fullagar and McTiernan JJ in Andrews v Hogan, Perpetual Trustee v Public Trustee and Walsh J in Holloway (at 311) say to the contrary. 56The better view seems to me to be that authority generally supports the naming of the Public Trustee as a defendant where a grant has not been obtained. Two judges in Andrews v Hogan were of that opinion. The Full Court in Perpetual Trustee v Public Trustee expressly said so. Although they were not prepared to say that Birch did not lay down the law correctly, that part of Birch asserting that the Public Trustee could not be named as a defendant is entirely inconsistent with the ratio of the decision in Perpetual Trustee v Public Trustee. That decision was followed in Holloway (at 311). In any event, I am bound by it whatever the uncertainty in Andrews v Hogan. 57Dixon CJ's view to the contrary does not appear to be a concluded view - see Brown v NSW Trustee and Guardian [2012] NSWCA 431 at [85] - [86]. 58Wallace J's dismissal of Fullagar J's statement that the Public Trustee was empowered to surrender a statutory tenancy as obiter does not, with respect, come to grips with the clear support in Fullagar J's reasons and those of McTiernan J for the joining of the Public Trustee as a defendant where the Notice to Quit was properly served upon him. Nor does he refer to the same clear support for that course in Perpetual Trustee v Public Trustee despite the Master having relied upon it. 59Atsas v Gertsch concerned a claim for damages. Hodgson CJ in Eq listed a large number of cases cited by the Plaintiff. Some supported the proposition that the Public Trustee could be named as a defendant - others did not. His Honour did not make clear why he came to the view he did - he simply accepted that "the effect of the cases... is that the Public Trustee does not represent the estate for the purpose of proceedings brought against the estate". In a damages claim there is much to be said for that view. In any event the matter concerned whether time was running against the plaintiff who wished to sue the estate and did not raise the present issue. 60Atsas v Gertsch is not authority against the Plaintiff in the present case. Moreover, Hodgson CJ in Eq accepted that Andrews v Hogan and Perpetual Trustee v Public Trustee were concerned with a different remedy, a remedy in rem to recover possession of land by a landlord. The present claim is also a claim in rem to recover possession, albeit by a mortgagee. 61In Manchester Airport Plc v Dutton [2000] QB 133 Chadwick LJ said (at 139): The court orders that the plaintiff do recover possession of the land described in the originating summons. An order in that form is an order in rem, enforceable by a writ of possession. The nature of the writ of possession was explained by Lord Diplock in Manchester Corporation v Connolly [1970] Ch 420, 428-429: The writ of possession was originally a common law writ (though it is now regulated, as I say, by Ord 45, r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and to deliver possession of the land to the plaintiff. 62The claim for possession as a result of the breach of the mortgage is a remedy in rem. It cannot be meaningfully distinguished from the claim by a landlord for possession of the landlord's property. The land is not only deemed to be vested in the Public Trustee, but the transmission of the deceased's estate takes place before and quite apart from the registration of the Public Trustee as the registered proprietor by reason of s 93 Real Property Act and s 61: Sparks v Meer [1971] 2 NSWR 1 at 6. 63Accordingly, where a claim for possession is made in relation to a person who has died and where no grant of probate or administration has made in their estate the proper defendant to the proceedings is the NSW Trustee and Guardian by virtue of s 61. This is so whether possession is sought by a landlord, by a mortgagee or any other person entitled to possession such as a trustee in bankruptcy or a trustee appointed pursuant to s 66G Conveyancing Act 1919. 64 However, in the present case the Defendant was not named as the NSW Trustee and Guardian but as The Estate of the Late Geoffrey Francis Wells. A defendant by that name is not a legal person. No judgment can be given against such a defendant. It is necessary for there to be an identified person against whom a judgment is given particularly if it is a money judgment: Colquhoun v Graffione (Administrator) in the matter of Colquhoun [2000] FCA 325 at [25] - [27]; Sergei Ivanovski v Walter Perdacher [2009] NSWSC 913 at [49]. 65Since no legal person was named as a defendant in the proceedings the Registrar was correct to set aside the default judgment and to refuse the Notice of Motion for a writ of possession although not for the reasons given by the Registrar. Before any further judgment can be given application will need to be made by the Plaintiff to amend the proceedings to name the NSW Trustee and Guardian as defendant. 66I have given consideration to whether the naming and service of the NSW Trustee and Guardian in the circumstances giving rise to these proceedings is sufficient to be fair to persons who might be detrimentally affected by an order for possession. This consideration arises because s 56 requires (inter alia) a "just" resolution of the real issues. 67Any question of fairness or justness cannot affect the correctness of the conclusion that the NSW Trustee and Guardian is the correct defendant. Such matters go only to whether additional orders should be made such as an order under r 7.10 UCPR or an order for service of the proceedings on any person who may have an interest in the estate pursuant to s 69 Civil Procedure Act 2005 or r 2.1 UCPR. 68Rule 7.10 provides: Interests of deceased person (1) This rule applies to any proceedings in which it appears to the court: (a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or (b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate. (2) The court: (a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or (b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed. (3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate 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. (4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit. 69Section 61 relevantly provides: Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. 70Rule 2.1 provides: Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 71In some cases it may be appropriate for the Court to make directions or orders to ensure that persons interested in the estate are at least aware of the proceedings. That may be because the NSW Trustee and Guardian may have no positive duties or obligations to perform with the result that those persons who might be affected by an order for possession will have no knowledge of the proceedings. 72Ordinarily problems about notice will be satisfactorily dealt with by reason of the service of the Notice to Occupier and the originating process. The usual method of service of these is by leaving them on the land, at least if no person is present: see in that regard r 6.8(2) UCPR. If evidence demonstrates that the land appears to be unoccupied the Court may make further orders pursuant to the above provisions. 73In the present case there can be no unfairness, and no further orders need to be made. The Public Trustee is named as executor of a will of the deceased. Service of the originating process and the Notice to Occupier have been effected. 74Accordingly, I dismiss the Amended Notice of Motion filed 19 July 2013.