Jurasz v Cesna

Background to the estate

1. The late Christine Deanna Jurasz (the deceased) died on 13 July 2022, aged 71.
2. In April 1988, the deceased married Boguslaw Jurasz (also referred to as Bogdan), who predeceased her on 8 May 2019, aged 68. Bogdan had two daughters: the plaintiff, who was born in 1980 and is currently aged 44; and Magdalena (also known as Magda), who was born in or about 1977. Hence, the plaintiff and her sister are the deceased's stepchildren.
3. The deceased was survived by her sister Eileen Cesna (Mrs Cesna), the current defendant, aged approximately 74. Mrs Cesna relevantly has two daughters, Nicole and Jacqueline, the latter of whom she describes as being disabled.
4. For reasons which I will explain below, Mrs Cesna only became aware of her sister's death in January of this year, some 18 months after the deceased had died.
5. It is common ground in the proceedings that the deceased died intestate, with searches made to locate any Will of the deceased being fruitless.
6. As both of the deceased's parents predeceased her, having no children other than the deceased and Mrs Cesna, prima facie it appears that Mrs Cesna is entitled to the entirety of the deceased's estate on intestacy.
7. Consequently, on 15 February 2024, the plaintiff commenced these proceedings by filing a summons seeking a family provision order for provision out of the deceased's estate, as well as an extension of time to bring the application.
8. At the time of her death, the deceased resided in a unit in Grandview Street, Parramatta (Unit), which is subject to a mortgage to Bendigo and Adelaide Bank Ltd (Bank). Solicitors of Dentons Australia (Dentons) act for the Bank.
9. In the absence of any comprehensive evidence setting out the assets and liabilities of the estate, the following limited details emerged regarding the Unit.
10. The Unit had been acquired by the deceased and Bogdan in October 2003 for $470,000 as joint tenants. On 23 August 2019, upon Bogdan's death and the lodging of a notice of death, the Unit was registered in the deceased's name as the surviving joint tenant.
11. There are competing assertions as to the value of the Unit. The plaintiff asserts, based on a Domain website search, that it has an approximate value of $860,000. Mrs Cesna appears to be of the view that the Unit had, at some point at or after the deceased's death, a value of $980,000. Another figure of $930,000 has also been referred to. How those figures have been derived is not entirely clear, although there is no need for me to delve into such matters.
12. The mortgage, at least as at 10 July 2024, had accrued to approximately $380,000. It is also clear that there is personal property of the deceased at the Unit.
13. What else is in the estate is unclear. However, the plaintiff has indicated that the deceased also had some small amounts in bank accounts.
14. Through what I will describe neutrally as a series of unfortunate timings and events, the deceased's estate remains unadministered.
15. Astonishingly, it is now approaching almost 27 months after the deceased's death and, whilst it appears that the plaintiff has had some access to the Unit after the deceased's death, neither of the parties has been effective in taking steps to have someone appointed to secure and preserve the Unit. This resulted in the Bank simply allowing the mortgage to continue without repayment until July 2024, when it issued a default notice. The Bank has now taken possession of the Unit and is proceeding to exercise a power of sale as mortgagee.
16. The state of administration of the estate is far from ideal. Each side refutes blame for the prevailing state of affairs.
17. There have been unsuccessful attempts on either side to bring about efficacious administration of the estate, plagued by an unfulfilled optimism. Expectations of the plaintiff about there being a Will, and attempts at locating any such Will, gave rise to delay on her side. On Mrs Cesna's side, steps to apply for letters of administration have been ineffectual for various reasons.

The Application

1. On 3 September 2024, the plaintiff filed a notice of motion seeking that Mrs Cesna be removed as a defendant and Lauren Gidley (Ms Gidley) be added as a defendant and granted letters of administration of the deceased's estate (Application).
2. Ms Gidley is a solicitor with extensive experience in the administration of deceased estates and an accredited specialist in wills and estates law. She is not aware of any conflict in acting, is capable of acting and consents to acting as the administrator if appointed.
3. The actions taken by the Bank to exercise its power of sale appear to have been, in part, the catalyst for the Application before the Court.
4. Even at the time of the listing of the Application for hearing on 27 September 2024 (seven months after the proceedings had been commenced): 1. no application for a grant has in fact been filed by Mrs Cesna or any other party, including the plaintiff; 2. there are no orders in the proceedings which have addressed the administration of the estate; and 3. neither party has prepared and adduced as evidence in the proceedings the necessary information that would be required to enable the Court to make findings regarding the exact nature and extent of the estate, and the other information an administrator is required to provide in accordance with paragraph 18 of Practice Note SC EQ 07 (which commenced on 17 June 2024).
5. The immediate imperative is to address the issue raised by the Application as to who is to administer the estate, in circumstances where the Bank as mortgagee has declined to put the sale on hold, pending the plaintiff's Application or letters of administration being applied for, and there is personal property of the deceased in the Unit which the Bank's agent has indicated would be disposed of if it had not been collected by yesterday (30 September 2024).
6. Before addressing that, it is appropriate to make a few preliminary observations.

Practical guidance - importance of "big picture" outcome awareness

1. First, part of the process of estate law practitioners advising a client is identifying potential solutions (litigious and non-litigious) to the client's presenting issue which are viable and commendable. That involves assessing the time, effort, expense and risks attendant upon achieving such solutions.
2. Secondly, whilst it might be debatable as to whether either of the parties had a duty to preserve the assets of the deceased estate without a grant, it is legitimate to ponder why, given the lengthy lapse in time since the deceased's death, no interim relief was sought at or soon after the commencement of the proceedings to secure and preserve the deceased's property.
3. Thirdly, leaving aside questions of legal duty, as a practical matter, one of the first things that the parties to family provision proceedings ought to address is whether there is someone who has legal authority to take steps to locate, secure and preserve the assets of the deceased. If not, that fundamental issue should, as an imperative, be one of the first things addressed in the matter, and certainly by the return of the summons. It is in the parties' individual and collective interests to do so.
4. Fourthly, and more fundamentally, parties and legal practitioners involved in estate disputes should, before commencement of proceedings or soon thereafter, be alive to engaging with one another in "big picture" outcomes thinking to consider not merely the nature of the relief sought but also the status of estate assets from which relief might be provided, to ensure that any court process has some realistic prospect of yielding a practical outcome for all those concerned.
5. In any given case, that will likely include: (a) identifying the property that is being fought over or from which relief might be provided is secured and preserved in some way; (b) considering whether the steps proposed to be undertaken in the proceedings are likely to be effective and incurred at a cost that is proportionate to the value of the property and the importance and complexity of the matters in dispute; and (c) monitoring or reviewing matters or risks which may jeopardise meaningful outcomes from such property. Attention to those matters will avoid potentially disappointing, pyrrhic or futile outcomes.
6. Holistic thinking is not confined to the commencement of proceedings but endures to its conclusion. The concept is in part encapsulated by the idiom one "cannot see the forest for the trees" (said to have been used by John Heywood in his work "Proverbs" published in 1546) and also in the reputed comment of the late Alvin Toffler: "you've got to think about big things while you are doing small things, so that all the small things go in the right direction".

Hearing

1. The Application was listed before me for hearing on 27 September 2024. On that occasion, Ms Lowson of counsel appeared for the plaintiff and Mrs Cesna appeared by audio-visual link "assisted" by Nicole (the assistance was said to be necessary because Mrs Cesna apparently suffers from a hearing impairment).
2. I heard the Application in part. However, upon reading some of the evidence adduced and hearing from Mrs Cesna, it became apparent that the NSW Trustee and Guardian (NSWTG) was currently "involved" in aspects of administering the estate but was not represented or present before the Court.
3. Mrs Cesna then opposed the appointment of an independent solicitor to administer the estate, and expressed her wish for the NSWTG to continue to act. That submission (or rather request) begged the question of what, if anything, the NSWTG was doing in that capacity.
4. In those circumstances, and in the context in which there was a lack of precise detail regarding the nature and extent of the deceased's estate, I considered that the hearing should be deferred for a short time until the notice of motion had been provided to the NSWTG and it was able to provide the Court with an affidavit or outline of certain matters. I relevantly made the following orders: THE COURT: 1. Stands the matter over to before Meek J at 2pm on Tuesday 1 October 2024, for further hearing of the plaintiff's notice of motion filed on 3 September 2024 2. Directs the plaintiff's solicitor, Mr Smallwood, to correspond by this afternoon at 4pm to Ms Pollard of the NSW Trustee and Guardian (NSWTG) (at the email address ruth.pollard@tag.nsw.gov.au) to provide to her the notice of motion and to indicate the materials that are being relied upon, and to indicate that Meek J has requested that the NSWTG provide the Court with an affidavit or at least an outline which sets out (1) what involvement the NSWTG has had with the administration of the estate, (2) what if any inquiries the NSWTG has made as to the assets and liabilities of the estate, (3) an update of the current position regarding any administration steps the NSWTG has taken, in particular with the mortgagee of the property, (4) an indication of whether the NSWTG desires to obtain administration of the estate formally under a grant, and (5) what if any response it has to the relief sought in the notice of motion, such affidavit or outline to be provided to the parties and to the Associate to Meek J by 4pm on Monday 30 September 2024.
5. Yesterday afternoon (30 September 2024), Ruth Pollard (Director, Legal and Professional Services) on behalf of the NSWTG sent a letter to my Associate addressing the questions, in compliance with the orders. The outline and letter received by the NSWTG have been marked as Exhibit A1 for the purposes of the Application. The letter contained references to affidavits of the parties and addressed some communications with the NSWTG. In summary, I note: 1. the NSWTG has not taken any steps to administer the estate; 2. the NSWTG has not made independent inquiries to establish, confirm or verify the assets and liabilities of the estate; 3. the NSWTG has been contacted directly by estate creditors, including Dentons, AMEX and Indebted, and it indicated that all relevant communications will be provided to the administrator once appointed; 4. other than the NSWTG acknowledging Dentons' letter regarding service of the default notice and forwarding all notices issued by Dentons to Mrs Cesna, the NSWTG has not taken any particular steps in relation to the mortgage default; and 5. the NSWTG has no objection to the appointment of Ms Gidley as an independent administrator. It indicated that it is agreeable to, and will abide by, any decision of the Court in relation to the making of a grant of administration.
6. Ms Pollard indicated that the NSWTG's fees to administer a deceased estate are prescribed and regulated under the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act) and the NSW Trustee and Guardian Regulation 2017 (NSW) (Regulation). Such fees include the costs associated with obtaining a grant of representation and the cost to administer the estate. In respect of a family provision claim, if the NSWTG were appointed as administrator, legal fees would be charged in accordance with cl 10 of the Regulation, in addition to fees charged in accordance with cl 21 of the Regulation.
7. Ms Pollard's letter also provided a summary of the relevant fees associated with the NSWTG's services in respect of estate administration.
8. Today, I have proceeded to complete the hearing of the Application. To address the question of whether the Court ought to make the orders proposed by the plaintiff in her Application, it is relevant to set out the salient history regarding the steps taken by the parties in respect of the administration of the estate to date.

History of proceedings and administration steps taken to date

1. In her affidavit in chief, the plaintiff indicates that within a few weeks of the deceased's death she contacted a solicitor whom the deceased had referred to as their family solicitor. The solicitor informed the plaintiff that he did not hold a Will. She then sought advice from a separate solicitor in about August 2022, who advised her to try and locate a Will by making various enquiries. The enquiries were ultimately barren.
2. The plaintiff subsequently contacted her present solicitor, Mr Smallwood, on 1 September 2023. Mr Smallwood has acted for the plaintiff to date. He has been assisted by Allegra Frost, an executive assistant. Correspondence has emanated from both of them.
3. When the plaintiff first consulted Mr Smallwood, she indicated to him that she believed that the deceased had made a Will leaving her estate to the plaintiff, but she had not been able to locate the Will. The plaintiff alerted Mr Smallwood to the fact that the deceased owned the Unit.
4. It appears that Mr Smallwood appreciated that the plaintiff, as the deceased's stepdaughter, would not automatically be entitled to receive the deceased's estate. He was conscious of the fact that she may be entitled to make a family provision claim, however the time to make a claim had expired. At least in the first instance, given the plaintiff's confidence that the deceased had made a Will, Mr Smallwood suggested that it would be wise to make further attempts to locate any such Will before incurring the cost of making a family provision application.
5. On 22 September 2023, Mr Smallwood sent a letter to the NSWTG relevantly inquiring whether it proposed to apply for a grant of administration of the deceased's estate. He drew attention to the fact that the deceased had a sister (Mrs Cesna) residing in Queensland, who (it was asserted) had not had contact with the deceased for many years, and that the plaintiff was not aware of her address.
6. On 19 October 2023, a NSWTG client services officer, Aarti Singh, responded to Mr Smallwood's letter. The response provided some generalised information about informal administration of estates, enclosed an estate information form and checklist document and requested that the form be completed and returned.
7. Following that response, the plaintiff instructed Mr Smallwood to commence an application for letters of administration on her behalf. Mr Smallwood informed her that Mrs Cesna's consent would be required. However, the plaintiff asserts that she could not find any address or contact details for Mrs Cesna, other than in a deed dated 17 February 1998 which the plaintiff had found in the deceased's Unit.
8. On or about 13 November 2023, Mr Smallwood commenced an online application on behalf of the plaintiff to apply for letters of administration. However, it appears that only at that stage did he become alerted to the fact that, in his words, "a stepdaughter was not amongst those permitted to make an application". Ms Frost sent an email to the Court's Registry to ascertain if there were any means by which the limited list of online applicants could be "overridden" in circumstances where it is asserted that the plaintiff was shown as next of kin on hospital forms relating to the deceased.
9. On 16 November 2023 and 1 December 2023, Mr Smallwood attempted to correspond with Mrs Cesna without any immediate success.
10. On 8 December 2023, a Deputy Registrar responded to Ms Frost's request, drawing her attention to the relevant provisions of the Succession Act 2006 (NSW) (Succession Act) and noting that generally only someone who is entitled to a share of the deceased estate is entitled to apply for letters of administration. It was further noted that in circumstances where the plaintiff could not "clear off all classes of persons with a higher standing", such an application could not proceed.
11. Mr Smallwood informed the plaintiff that she did not fit into any of the categories of applicants for being granted letters of administration. Accordingly, she instructed Mr Smallwood to request the NSWTG to make an application for letters of administration.
12. On 12 December 2023, Mr Smallwood sent a letter to the NSWTG enclosing the completed estate information form and various certificates, identification documents and other correspondence relating to the deceased, which included a letter from the Bank dated 11 November 2023. Mr Smallwood's letter requested the NSWTG to apply for letters of administration, maintaining the assertion that Mrs Cesna had been estranged from the deceased and stating that he had forwarded a letter to Mrs Cesna indicating the plaintiff's intention to apply for letters of administration but had received no response. The letter foreshadowed that the plaintiff intended to make an application pursuant to the Succession Act for provision from the deceased's estate.
13. On 18 December 2023, Mr Smallwood sent a letter to the NSWTG enclosing a copy of his letter to Mrs Cesna and other documents, noting that service on Mrs Cesna had been attempted but without success.
14. On 15 January 2024, Mr Smallwood sent a letter to Mrs Cesna at a different address in Queensland, which he had located through a vendor's index search.
15. Mrs Cesna indicates that, on receipt of the letter, she contacted Mr Smallwood and gave him her email address and phone number. At about this time, it appears that she engaged a lawyer, LG Parker, to act on her behalf. It is unclear what, if any, steps that lawyer took beyond possibly corresponding with Mr Smallwood.
16. On 18 January 2024, Ms Singh responded to Mr Smallwood's office requesting certain information, including whether any application for letters of administration had been made by Mrs Cesna or another party.
17. On 25 January 2024, Mr Smallwood responded to Ms Singh noting that contact had then been made with Mrs Cesna, listing some attempts to locate whether there was any Will of the deceased and requesting the NSWTG to proceed with making an application for letters of administration.
18. On 6 February 2024, Mr Smallwood further corresponded with Ms Singh seeking advice as to whether Mrs Cesna had been requested to consent to an application for letters of administration and, if so, when the application was likely to be filed.
19. By 15 February 2024, having formed the view that he was unlikely to locate any Will of the deceased, Mr Smallwood advised the plaintiff that the estate would pass on intestacy to Mrs Cesna. That led to the plaintiff's instructions for him to commence these proceedings on her behalf.
20. On the cover sheet of the summons generated by the Registry, the NSWTG is named as the defendant to these proceedings. However, on the cover sheet of the summons as filed, the defendant is simply described as "The Administrator of the Estate of the late Christine Jurasz".
21. The summons had a return date of 15 March 2024. On that date, the matter was listed before Kunc J and directions were made for the plaintiff to file and serve any further lay evidence in chief by 17 May 2024 and for the proceedings to be stood over to 12 April 2024 (being an earlier date than the due date for the evidence).
22. On the hearing of this Application, I inquired about the lack of uniformity in the naming of the defendant in the summons document, and sought to clarify precisely who had been named as defendant. Ms Lowson stated that the named defendant was the NSWTG. She stated that the NSWTG did not attend the first directions hearing on 15 March 2024, and that Kunc J gave directions for it to attend at the next directions hearing in April. I pause to note that such a direction is not evident from the Court file nor the Associate's record of proceedings, nor is there material on the Court file of any proof of service of the summons on the NSWTG. Nonetheless, I certainly have no reason to doubt what Ms Lowson stated.
23. In any event, the NSWTG did not file any notice of appearance.
24. On 22 March 2024, Nicole sent an email to Mr Smallwood indicating that her mother was currently unwell but was in the process of organising legal representation.
25. On 2 April 2024, Mrs Cesna sent an email to Mr Smallwood stating that she was in the process of hiring a law firm "to do LOA and that it was not [NSWTG]". I infer Mrs Cesna's use of "LOA" is a reference to letters of administration.
26. On 5 April 2024, Mrs Cesna sent an email to the NSWTG advising that she was the sole beneficiary of the deceased's estate and was in the process of applying for letters of administration through a law firm. The email stated that she understood that the NSWTG had been summoned to attend the Court on 12 April 2024 to inform Kunc J whether it would be applying for letters of administration. The email requested the NSWTG to inform the Court that Mrs Cesna would be organising letters of administration through a law firm.
27. On 9 April 2024, a solicitor, Sasho Petrovski of PK Simpson & Co (PK Simpson) filed a notice of appearance on behalf of Mrs Cesna. The contact solicitor at PK Simpson appears to have been Maria Shwan.
28. On 10 April 2024, Ms Pollard sent a letter to Kunc J (I assume prompted by Mrs Cesna's 5 April 2024 email). The letter stated in part: NSW Trustee and Guardian has now received communication from the sister of the deceased who appears to be the sole next of kin with standing to take out letters of administration of the estate. Due to resourcing issues, NSW Trustee and Guardian hopes that this letter in the stead of a physical appearance, is sufficient to inform the Court that NSW Trustee and Guardian is agreeable to any decision of the Court. NSW Trustee and Guardian is prepared to take out letters of administration but in light of the deceased's sister agreeing to undertake this task, it may be that she is the appropriate person to do so.
29. On 12 April 2024, the matter was listed before Kunc J. A legal representative (it appears Ms Thornton of counsel) appeared for Mrs Cesna, whom, according to Ms Lowson, indicated that Mrs Cesna would apply for letters of administration. According to the Court file, the only order made on 12 April 2024 was to stand the proceedings over for further directions to 10 May 2024.
30. On 19 April 2024, there were at least three items of correspondence between Mr Smallwood and Ms Shwan. First, Mr Smallwood sent a letter to Ms Shwan requesting her to advise whether she had been instructed to apply for letters of administration. Ms Shwan confirmed that she was instructed to make such an application. In his reply, Mr Smallwood requested to be informed of what steps had been taken to date towards making that application.
31. On 10 May 2024, the matter was listed again before Kunc J. Ms Lowson appeared and Ms Coventry of counsel appeared in the interests of Mrs Cesna. Orders were made for the filing and serving of evidence and for the parties to approach the Registry for a date for court-annexed mediation. Relevantly, the other orders included: 1. Pursuant to rule 7.10 [UCPR] the court appoints [Mrs] Cesna to represent the estate of the late Christine Jurasz for the purposes of these proceedings. 2. The plaintiff to file an amended summons within 14 days naming [Mrs] Cesna as defendant. 3. Pursuant to rule 6.29 [UCPR] order the removal of the [NSWTG] as defendant.
32. After 10 May 2024, it appears that the parties worked towards a mediation of the proceedings, at least through the filing and serving of a number of affidavits. Indeed, there was no further listing of the matter until after the notice of motion was filed on 3 September 2024.
33. On 22 May 2024, an amended summons was filed by the plaintiff. The cover sheet was relevantly amended by deleting "The Administrator of the Estate of the late Christine Jurasz" as defendant and inserting Mrs Cesna's name instead. Two additional prayers for relief were also added, being: (a) an order that the Court designate as notional estate "all property as evidence may reveal to constitute notional estate"; and (b) an order restraining the defendant from distributing the estate (or any part thereof), pending determination of the claim or further order, or in accordance with the express written consent of the plaintiff.
34. Also on that day, the Court listed the proceedings for mediation on 3 September 2024 and for directions on 19 September 2024.
35. On 23 May 2024, another notice of appearance was filed on behalf of Mrs Cesna. It is not clear why that was done, other than perhaps that Mr Petrovski or Ms Shwan thought it was necessary as a consequence of filing the amended summons. It is not necessary for a defendant who has entered an appearance in proceedings to file a further notice of appearance to an amended summons.
36. Three weeks passed without any apparent further correspondence between the parties.
37. On 12 June 2024, Mrs Cesna sent an email to Mr Smallwood's office asserting that Kunc J had granted her letters of administration and requesting original death certificates for the deceased and Bogdan. It is unclear why Mrs Cesna sent that email rather than Ms Shwan. In any case, it was incorrect to assert that any grant had been made to her.
38. After a further elapse of almost a month, Dentons sent a letter to the NSWTG on 10 July 2024 enclosing a default notice in respect of the mortgage on the Unit. This was done on the basis that the Bank understood that there had been no grant of probate or administration in respect of the deceased's estate, and accordingly it asserted that the estate vested in the NSWTG pursuant to s 61 of the Probate and Administration Act 1898 (NSW) (PAA). The total amount due under the notice was $379,726.46.
39. On 25 July 2024, the NSWTG sent the default notice and letter from Dentons to Mrs Cesna, copying Mr Smallwood's office. Later that day, Mr Smallwood sent an email to Lisa Pedley of Dentons requesting that she copy him and Ms Shwan in correspondence sent on behalf of the Bank.
40. On 26 July 2024, Ms Pedley acknowledged Mr Smallwood's email and noted that her firm will seek an update upon the expiry of the default notice, being after 19 August 2024.
41. On 30 July 2024, Mr Smallwood followed up Ms Shwan regarding service of Mrs Cesna's evidence (which was long overdue). The following day, Ms Shwan provided Mr Smallwood with an unsigned copy of Mrs Cesna's (then draft) affidavit.
42. On 1 August 2024, Mr Smallwood undertook a search of the Court's Online Registry and could not locate any application for letters of administration. The same day, he caused a letter to be sent to PK Simpson requesting an update on Mrs Cesna's foreshadowed application. The letter is notable for a few reasons: 1. it requested urgent clarification as to whether the results of the Online Registry search were incorrect and, if so, when any such application for letters of administration had been filed; 2. it foreshadowed that, unless proof was provided that an application had been filed by 5.00 pm on 2 August 2024, Mr Smallwood would obtain instructions to file a notice of motion to appoint an independent administrator; and 3. it noted that Mr Smallwood's firm had forwarded the default notice to PK Simpson and stated further: We assume the mortgage is attracting penalty interest and your client's delay in obtaining Letters of Administration will cause the estate to suffer unnecessary loss. Our client reserves her rights in relation to unnecessary loss caused to the estate by your client's delay.
43. On 2 August 2024, Mr Petrovski served on Mrs Cesna a notice of intention to cease acting for her. The fact that such a notice had been issued was made known to Mr Smallwood.
44. On receipt of that notice, Mr Smallwood sent an email to Mrs Cesna requesting that she urgently inform him whether she had filed an application to be appointed as administrator. The email also clarified that Mrs Cesna had until 7 August 2024 to provide evidence that she had filed an application, otherwise the plaintiff would seek orders to have an independent administrator appointed.
45. On 6 August 2024, Mrs Cesna affirmed an affidavit. The cover sheet of the affidavit indicates that it was filed by Mrs Cesna (with a mobile phone number and email contact details for her). However, the body of the affidavit bears the hallmarks of having been drafted by a lawyer. The affidavit, at least in the opening part, bears the date 22 July 2024. I infer that it was drafted at a time when PK Simpson was still acting for Mrs Cesna.
46. The affidavit addresses certain substantive aspects of Mrs Cesna's claim to retain the benefits which she would otherwise receive on intestacy. I make no further comment about that. However, for present purposes, the affidavit relevantly: 1. discloses that at some unspecified time, but seemingly after 15 January 2024, she engaged a law firm to apply for letters of administration; 2. asserts that after all liabilities have been paid, including mediation fees and legal fees, she estimates that there may be around $280,000 available for the plaintiff and herself to mediate over; 3. asserts that the estate will have to pay capital gains tax on the Unit; 4. asserts that the Unit has been valued at around $930,000 with a mortgage of $365,000; and 5. asserts that the plaintiff's (in)action in delaying notification of the deceased's death to Mrs Cesna has caused great losses to the estate, at least because if the Unit had been sold within two years after the deceased's death, there would be no capital gains tax to pay on the Unit.
47. Also on 6 August 2024, Mrs Cesna signed a four page document addressed to Kunc J. The last page of the document suggests that it had been sworn as a form of affidavit before a Justice of the Peace. It is evident to me, from later correspondence to which I will refer, that Mrs Cesna describes this document as being a covering letter addressed to Kunc J to which she was expecting a reply.
48. The letter / affidavit opens with the assertion that "[t]his matter has become so complicated, messy and overwhelming for me". It sets out, at least in part, a form of narrative chronology for the period from 14 May 2024 to the time of writing.
49. The catalyst for this letter / affidavit is not entirely clear, although it contains the assertion that Ms Shwan "neglected to inform me the Banks were foreclosing the property which was brought to my attention when [the NSWTG] sent me an email a week ago". In a paragraph on the third page of the letter / affidavit, Mrs Cesna asserts (again) that the plaintiff has caused substantial losses to the estate: ... as Banks have been charging interest and penalties for the last two years. Rates/Utilities and other bills incurred fees were being charged for the last two years including capital gains tax.
50. Thus, at least at that point, it appears that Mrs Cesna was aware that there had been a significant problem regarding potential losses to the estate which had been accruing over the prior two years.
51. On 12 August 2024, Mr Petrovski filed a notice of ceasing to act for Mrs Cesna. Also on that date, Mr Smallwood sent a letter to Mrs Cesna by Express Post seeking an update as to whether she had made any progress towards applying for letters of administration. He extended the deadline to filing a motion for an independent administrator to 19 August 2024.
52. On 19 August 2024, Mrs Cesna emailed Ms Frost again requesting the original death certificates of the deceased and Bogdan, as these were apparently required for letters of administration. In her reply, Ms Frost noted that the original certified copies of the death certificates would be sent to Mrs Cesna that afternoon, and requested a scanned copy of Mrs Cesna's application for letters of administration. At about this stage, Mrs Cesna seemingly raised the prospect of attempting to vacate the mediation.
53. On 20 August 2024, Mrs Cesna sent an email to Ms Frost addressing various matters. She asserted that she wanted to be able to determine all of the liabilities and assets of the estate before proceeding to mediation. The email relevantly concluded that, since PK Simpson would no longer be representing her, it appeared that "the whole process will have to start over again", and noted that she was seeking further legal advice. The following day, Mr Smallwood responded with confirmation that the certificates requested had been sent and he otherwise clarified his client's position.
54. On 23 August 2024, Mrs Cesna sent a lengthy email to Mr Smallwood requesting that the mediation be cancelled and stating that she would need to redo her "affidavit LOA" herself and hire new lawyers. She stated further: You are now on Notice that I do not have legal representation, that mediation cannot be done on 3rd September, 2024 as I do have [sic] to hand liabilities of the Estate, that LOA has not been granted as yet, that I am recovering from 3 emergency eye operations during the past months of this year. My solicitors did not pass on any information regarding the Estate. Maria informed me recently she could not do any work on the Estate without LOA being granted. That included work for mediation. I have emails to confirm all of this. I received two Affidavits for LOA/FPA respectively, late in July, incomplete. Hon. Justice Kunc and the Court has been informed by me of the situation, that is not my fault and that I am awaiting there [sic] response. I am hoping Hon Justice Kunc will allow TAG to do LOA and remove me. I would have done LOA but after receiving your emails to sue me I realize my health and well being of my disabled daughter would suffer greatly. This messy, complicated situation which has caused substantial losses against the Estate arose because your client, Katrazyna [sic] did not contact me or a solicitor when my sister passed away two years ago.
55. This appears to be the first occasion on which Mrs Cesna alerted Mr Smallwood to the fact that she no longer wished to be appointed as administrator.
56. On 25 August 2024, Mrs Cesna sent another lengthy email to Mr Smallwood addressing a number of issues. Two matters bear mentioning. First, the email asserts that she had informed Dentons to proceed with foreclosure. Her basis for doing that is unclear.
57. Second, Mrs Cesna appears to have been under the impression that Kunc J was making some decision about the granting of letters of administration and a number of other matters, and she was waiting for Kunc J to respond to her. That understanding was misconceived. Kunc J had no formal application before him, and the fact that her second self-prepared letter / affidavit affirmed on 6 August 2024 was addressed to Kunc J would not, unless it was directly drawn to his Honour's attention (which I infer it was not), give rise to any reason for his Honour to respond to the document or list the matter.
58. On 27 August 2024, Mrs Cesna sent a further email to Mr Smallwood in which she was still apparently waiting for Kunc J to respond to her request regarding letters of administration. Relevantly, that email contained the following: I was happy for TAG to do LOA but my lawyers advised me that was not in my best interests. That TAG were very expensive and they were cheaper which would benefit the Estate. I also believed that my lawyers would be the Executor of the Estate and do LOA, not me. I informed them I was not legally capable, had to care for my disabled daughter, lived in Queensland and had numerous health issues (eye operations and so on). I wanted them to be the Executor of the Estate. Found out later that I was to be the Executor of the Estate and that they would only be assisting me with LOA. As I informed you a few times now, I am waiting for Hon. Justic [sic] Kunc to respond to my request regarding LOA. It is up to the Judge to decide whether to remove me (not you) and Order TAG to do LOA. Pointless you contacting TAG until the Judge has made his decision. Would it not be disrespectful to Hon. Justice Kunc to go ahead and get another solicitor to do LOA, without waiting for his decision in this matter. I would have thought the Judge has to remove me first and who he wants to appoint before we can proceed. If I am wrong and we do not need to wait for Hon. Justice Kunc instructions regarding his Order for me to LOA please advise me as this is your area of expertise, not mine.
59. Also on that day, Registrar Gerritsen vacated the mediation.
60. On 30 August 2024, Mr Smallwood sent an email to the NSWTG requesting that it provide a copy of any communications between it and Mrs Cesna and indicating the plaintiff's intention to seek the appointment of an independent administrator.
61. On 2 September 2024, Ms Pollard sent an email in response to Mr Smallwood as follows: I refer to your email to our client establishment team. Due to privacy issues, we cannot provide you with a full copy of the email correspondence. We can inform you that this matter came to our attention in April this year and there was correspondence between your firm, the Court and NSW Trustee and Guardian. On 25 July we contacted Mrs Cesna to say that we had been made aware of her intention to apply for Letters of Administration for the estate of the late Christine Deanna Jurasz. We enclosed a copy of the Default Notice received from Dentons. On 19 August Mrs Cesna responded to our email requesting certain documents. On 2 August Mrs Cesna wrote to advise that she had informed Justice Kunc that due to personal circumstances she could not take out letters of administration. Mrs Cesna against [sic] contacted NSW Trustee and Guardian on 27 August to confirm that due to personal circumstances of hardship and ill health she had advised the Court she could not take out letters of administration. However she had not heard from the Court and was worried about her letter being received by the Court.
62. On 3 September 2024, Ms Pedley sent a letter to the NSWTG. The letter is significant for a number of reasons: 1. it noted that the default notice had expired unremedied and the Bank had now entered into possession of the Unit; 2. it referred to the fact that there were goods remaining at the Unit and the Bank requested that all goods be removed from the property by 30 September 2024, or confirmation that any goods remaining at the property may be disposed of, and stated that no insurance had been or will be taken out by the Bank over any of the goods; 3. it indicated that supervised access to the Unit may be arranged through the Bank's mercantile agent (POL Property Group); and 4. it asserted that, in circumstances where the deceased's estate was vested in the NSWTG, the Bank was not authorised to deal with either Mrs Cesna or the plaintiff (via Mr Smallwood) in relation to the Unit or the goods.
63. Also on 3 September 2024, Ms Pedley emailed Mr Smallwood noting that the Bank had taken possession of the Unit and, in circumstances where there had been no grant of letters of administration, the estate vested in the NSWTG and she requested that he liaise with the NSWTG in relation to the estate, including the Unit.
64. One might think that email was the catalyst for the plaintiff filing the Application on 3 September 2024. However, Mr Smallwood in an affidavit deposes to the fact that he had not noticed Ms Pedley's email until early in the morning of 5 September 2024.
65. Prior to the listing on 5 September 2024, Mr Smallwood called Ms Pedley informing her that the Application was before the Court. In that context, he asserts that Ms Pedley informed him that her client had changed the locks in the Unit but would not take any further action until the Application was dealt with.
66. On 5 September 2024, there was a listing before Registrar Gerritsen. Ms Lowson appeared on behalf of the plaintiff and Mrs Cesna appeared via audio-visual link. The Registrar made orders for the plaintiff to serve the notice of motion, for affidavits in support or in defence of the Application to be served and for the matter to be listed on 26 September 2024.
67. After the directions listing that morning, Mr Smallwood emailed Ms Pedley outlining the orders made, noting that the Court had "granted leave to us to approach the Duty Judge if required in the meantime". He requested that, if the Bank wished to take any steps before the listing of the Application on 26 September, it provide the plaintiff time to approach the Duty Judge. He further requested provision of any assessment of the Unit's value that may have been obtained.
68. On 6 September 2024, Ms Pedley responded to Mr Smallwood confirming that the Bank was in possession of the Unit and was proceeding with its mortgagee sale. She indicated that the sale would not be put on hold pending the Application or letters of administration being applied for.
69. Despite that response, no approach was made to the Duty Judge prior to the next listing.
70. On 26 September 2024, Ms Lowson and Mrs Cesna appeared and Registrar Gerritsen listed in the Application for hearing before me at 9.00 am on 27 September 2024.

Role of the NSWTG in light of vesting of property

1. In order to understand the nature of the role that the NSWTG has played (or permissibly might have played) in this matter, it is important to appreciate the effect of s 61 of the PAA, to which Ms Lowson and Mrs Cesna both referred. The provision is as follows: 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.
2. The extent of what, if any, duties and active powers the NSW Trustee [1] (and previously the Public Trustee) has as a consequence of the vesting of a deceased's property in it pursuant to s 61 of the PAA has been considered at the highest levels of judicial hierarchy in Australia (see e.g. Andrews v Hogan (1952) 86 CLR 223; [1952] HCA 37), but it suffices to note the following.
3. Recently, White JA analysed its history and effect in Deigan as executrix for the estate of the late James Boyd Lockrey v Fussell [2019] NSWCA 299; (2019) 19 BPR 39,853 (Deigan). Two questions raised in that case, although not being ones on which it was ultimately necessary for the Court of Appeal to express a concluded view, were whether or not the named executrix in the Will could, before the grant, exercise a right of rescission of a contract on behalf of and for the benefit of the estate, and whether, if she did, her action was retrospectively validated. White JA ultimately concluded that the answers to those questions should be yes: see Deigan at [179]-[187]. However, it is important to note that Bathurst CJ (at [5]) and Macfarlan JA (at [7]) specifically refrained from expressing a view on them.
4. Whilst White JA has further commented on the effect of s 61 (see Arcidiacono v The Owners - Strata Plan No 17719; Arcidiacono v The Owners - Strata Plan No 61233 (2020) 104 NSWLR 199; [2020] NSWCA 269 at [102]-[104]), and it is possible that at some point the Court of Appeal may revisit questions regarding the full nature and extent of the duties, powers and any other implications which arise from s 61 of the PAA, it is not necessary for me to delve deeply into them on this occasion.
5. It suffices to note that, conventionally, in a claim for possession of land in relation to a person who has died and where no grant of probate or letters of administration has been made, the proper defendant to the proceedings is the NSWTG by virtue of s 61 of the PAA: see e.g. GEL Custodians Pty Ltd v Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973 at [63] per Davies J.
6. Further, it is doubtful that the NSWTG has any duty or obligation to seek a grant of probate or letters of administration for such an estate. The NSWTG may be appointed to and act in the capacity of executor or administrator of an estate: s 11(1)(b) NSWTG Act. However, the NSWTG may refuse to act in a capacity as executor or administrator: see s 13(1) NSWTG Act when read with the definition of "trust capacity" in s 3. The only qualification is that the NSWTG may not refuse merely on the ground of the small value of the estate: s 13(1) NSWTG Act; see further Abu-Arab v NSW Trustee and Guardian [2014] NSWSC 954 (Abu-Arab) at [21]-[23] per Davies J.
7. The statutory provisions regarding the NSWTG are consistent with the general law position that no person is obliged to obtain probate even when named as an executor of a Will, or to seek letters of administration, unless the executor named in the Will or some other person has intermeddled in the estate: see Abu-Arab at [24].
8. It is apparent that Dentons has corresponded on behalf of the Bank with the NSWTG by reason of the Bank's assumption, based on s 61 of the PAA, that it is the appropriate representative of the estate with whom to liaise. That being said, having regard to all of the evidence and in particular Exhibit A1, I am satisfied that the NSWTG has not taken any decisive steps in relation to the estate which would amount to a sufficient intermeddling so as to compel it to seek letters of administration.

Should an independent administrator be appointed and, if so, who?

1. Where assets of an estate are in jeopardy and there is no person who has obtained a grant of letters of administration, it is open to an interested party to apply to the Court for the appointment of an appropriate person under a special and limited grant to protect the assets of the estate. The Court has power to make an urgent order pursuant to s 74(a) of the PAA, for example. In doing so, the Court may dispense with the requirement for advertising (see Re Estate of the late Assim [2015] NSWSC 337; (2015) 106 ACSR 544), as well as the need for an administration bond: see McCorquodale v Guth [2008] NSWSC 1420 and Re Estate of Edith Macdougall [2013] NSWSC 990.
2. The procedural aspects of such an application are conveniently set out in Leslie Handler and Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) at [5249], a section dealing with administration to protect assets (ad colligenda bona defuncti).
3. I do not doubt that the plaintiff took steps to locate a Will of the deceased and establish whether she could seek letters of administration of the deceased's estate. She also corresponded with the NSWTG and Mrs Cesna regarding their steps to seek letters of administration.
4. However, the simple fact remains that at no point, even after these proceedings were commenced, did either the plaintiff or Mrs Cesna take any steps to seek orders for a special limited grant to address the obvious fact that nothing was being done to secure the deceased's Unit or address the mortgage over it (which remained unattended to for two years after the deceased's death).
5. It appears that the plaintiff had access to the Unit after the deceased's death, as she deposes to the fact that she searched amongst the deceased's papers at her home in the hope of locating a Will.
6. On 1 September 2023, Mr Smallwood (or someone in his office) conducted a Land Registry Services title search for the Unit, which disclosed that it was subject to a mortgage in favour of the Bank. Thus, he was aware at or about that time that the estate property was subject to a mortgage.
7. It is not apparent from the evidence that anyone on behalf of the plaintiff or Mrs Cesna took steps to address the physical state of the Unit, or enquired as to the size of the mortgage or how the mortgage was being serviced.
8. Ms Lowson has informed me from the Bar table that, although it is not in the evidence, at some point Mr Smallwood had a discussion with someone at the Bank who indicated that it was not going to foreclose.
9. In any event, by 25 July 2024, Mr Smallwood was aware of the fact that the mortgage was in default. Further, he knew from Ms Pedley's 26 July 2024 email that she would next contact him only on expiry of the default notice after 19 August 2024.
10. Even after Mr Smallwood's correspondence with Ms Pedley on 5 and 6 September 2024, no application was made to list the matter before the Equity Duty Judge.
11. Looking at the matter afresh, the parties ought to have approached the Court much sooner than they have in order to address the pressing issues of securing the Unit and servicing (and ultimately discharging) the mortgage in a quick, efficient and orderly manner.
12. That being said, it is not necessary or appropriate for me to make any specific or conclusive findings regarding any potential waste to the estate or any allocation of blame for such waste.
13. Appreciating when it is an appropriate or necessary time to apply to the Court, seeking interlocutory orders which address developing issues, is in part a matter of forensic judgment based upon an assessment of the urgency of the issues, the risk of adverse consequences occurring and the seriousness of any such consequences.
14. Other matters which inform a decision to seek urgent interlocutory relief include common sense, wisdom, life experience and an understanding of legal processes, as well as matters conducive to just, quick and cheap outcomes and any impediment to such outcomes. Sometimes, on the advice of their lawyers, parties are reluctant to move precipitously if they reasonably expect other parties to be in the process of addressing certain issues. Sometimes, it suffices for lawyers to give "ultimatums" to those parties in the hope that they are spurred into taking expedient action, rather than the lawyers incurring costs in continuously seeking updates from others and pressing for them to take action.
15. The Bank has secure possession of the Unit and continues to progress towards a sale of the Unit under a mortgagee power of sale. Further, despite the Bank's indication that the deceased's personal items should be collected, no party took any steps to expedite the Application to ensure that that would occur. Mrs Cesna has placed before the Court photos from POL Property Group showing that there are significant personal items in the Unit, including some of what appear to be medals or trophy items in boxes.
16. Thus, as matters presently stand, there is an immediate risk that the deceased's personal items will be disposed of (by the agent of the mortgagee) without anyone acting on behalf of the estate. That is regrettable.
17. Whilst Mrs Cesna no doubt believes that she has attempted to do what she can to obtain letters of administration, I have no confidence that that process is going to be expedited and completed with anywhere near the sort of speed that is now required. From her correspondence, it appears that Mrs Cesna's ability to deal with administration issues is limited by her obligations to care for her disabled daughter, her own health difficulties and the fact that she has not had the benefit of legal assistance for some time. In any case, she has indicated that she no longer wishes to take on the role of administrator.
18. In all the circumstances, I am satisfied that an independent administrator should be immediately appointed to address the situation regarding the estate.
19. Strictly speaking, there is no application before the Court to appoint the NSWTG, although I infer that if the Court were so minded to appoint it, it would accept the grant. Rather, the Application before the Court is specifically for the appointment of Ms Gidley.
20. There has been some debate before me this afternoon in relation to who, as between Ms Gidley and the NSWTG, ought to be appointed.
21. For her part, Mrs Cesna has referred to some prior correspondence with the NSWTG in which she was seemingly given an indication of what she described as a set fee or fixed price of $21,000 for it to undertake work in relation to the estate. It appears that figure was in some way calculated or assessed by reference to $930,000 as representing the value of the estate. Mrs Cesna is under the impression that the NSWTG simply charges "a percentage of the estate". However, there is no precise evidence of any calculation before me.
22. For her part, Ms Lowson has emphasised that the detailed basis for costing in the information provided by the NSWTG in Exhibit A1 gives no precise indication of what costs or fees, in terms of a total approximate amount, are likely to be incurred if it were appointed.
23. It is evident from the information provided by the NSWTG, and which has been commented upon by Ms Lowson, that there are different categories of fees and it is not the case that the NSWTG would simply charge a fee based on the value of the estate and nothing more. While there are administration fees in part based upon fixed percentages which change by reference to estate value brackets, there are additional fees depending on the nature of the work involved.
24. Fees may be charged in relation to lodgements of tax returns or tax investigations, which are charged on an hourly rate.
25. Further, if legal work is necessary, the NSWTG may engage external legal service providers to do that work, in which case their costs are additional to the NSWTG's standard service fees. If the legal work is done by the NSWTG's in-house solicitors, their fees are also additional and are structured as follows: Role Hourly fee (including GST) Director $561 Principal solicitor - grade VI $561 Senior solicitor - grade V $456.50 Solicitor - grade IV $456.50 Solicitor - grade I-III $418 Legal Assistant $165

1. On the hearing, Mrs Cesna asserted that the hourly rate of Ms Gidley was well in excess of the fee for a director or principal solicitor, and objected to the appointment of Ms Gidley on that basis. Whether or not that is the case, one cannot simply infer that Mrs Cesna is correct in submitting that the NSWTG will incur less costs in administering the estate than Ms Gidley, given the various ways in which fees are incurred by the NSWTG.
2. A further ground for resisting Ms Gidley's appointment was that, in Mrs Cesna's words, the NSWTG was "ready to go" given that it had been involved in the matter for several months. I appreciate that she may have formed that impression as a result of her correspondence with officers of the NSWTG to date. However, it is not clear to me that it is actually the case. In the evidence provided to the Court as part of Exhibit A1, the NSWTG explains that it has not taken any steps to administer the estate or made any independent enquiries to establish, confirm or verify the assets and liabilities of the estate. In those circumstances, it can hardly be said that the NSWTG is "ready to go" if appointed as administrator.

Significance of the Law Society's List of Independent Administrators

1. In 2022, at the request of this Court, the Law Society of New South Wales established a List of Independent Administrators in succession law matters. The list consists of suitably qualified solicitors willing to be appointed as independent administrators when parties are unable to agree on a nomination for appointment. The original list expired in July 2024 and a further list has since been published.
2. Whilst Ms Gidley is not one of the persons on the list, it must be remembered that the list is a helpful resource to the Court, but it does not bind or compel the Court to only choose independent administrators from that list. I have referred to material above from Ms Gidley which sets out her preparedness to act.
3. There is also evidence before the Court that Ms Gidley holds a Masters of Laws (Applied Law), majoring in wills and estates, and has acted as an independent administrator in a number of estates including where a family provision claim is to be defended.
4. In my opinion, Ms Gidley is appropriately qualified to act as an administrator and, in all of the circumstances, I propose to appoint her as such.

Status of Mrs Cesna and representation of the estate in these proceedings

1. Three questions remain as to the status and role of Mrs Cesna in these proceedings and the representation of the estate.
2. The first relates to how the estate is to be bound by the proceedings. By reason of the orders on 10 May 2024, Mrs Cesna currently represents the estate in the proceedings pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
3. It is not unknown for the Court to make an order appointing a party to represent an estate for the purposes of the proceedings, pursuant to r 7.10(2)(b) of the UCPR, in circumstances where there has been a separate order appointing another person as administrator of the estate: see e.g. Reeves v Reeves (No 2) [2024] NSWSC 386 (Reeves (No 2)).
4. Separate representative appointments can co-exist, but they are not necessarily ideal. In such circumstances, there is a need to clarify the terms, nature and scope of the representatives' functions. There may also be need to address whether the representatives will likely have a right to indemnity from the estate or the facility to seek judicial advice: see Reeves (No 2) at [193]-[194].
5. Having regard to the history recited above, it seems that Mrs Cesna's appointment to represent the estate pursuant to r 7.10(2)(b) of the UCPR was made in a context in which it was assumed by Kunc J and the plaintiff that Mrs Cesna would also be granted letters of administration in the near future. That has not eventuated.
6. In light of the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and to avoid any questions of overlap of responsibility between Mrs Cesna and Ms Gidley, I consider that the appointment of Mrs Cesna under r 7.10(2)(b) of the UCPR should be revoked and the conduct of the defence of the proceedings should be committed to Ms Gidley. That is, at least in part, reinforced by the fact that the jurisdictional basis for such an order (leaving aside any exceptional cases) no longer subsists, namely that a deceased person's estate has an interest in the proceedings but is not represented in them. By reason of the appointment that I will now make, the estate will be represented in the proceedings by Ms Gidley.
7. The terms, nature and scope of Ms Gidley's functions as administrator will be those applicable to an administrator on intestacy as drawn from the terms of these orders and applicable statutory provisions. Her entitlement to remuneration and indemnity is, in part, drawn from the terms of these orders, applicable statutory provisions and the general law. As an administrator, she has access to judicial advice: ss 5 (definition of "trustee") and 63 Trustee Act 1925 (NSW).
8. Mrs Cesna's entitlement to remuneration and indemnity for the period of her status as a representative under r 7.10 of the UCPR is not presumed and is yet to be determined.
9. The second question is whether Mrs Cesna should be removed as a party to the proceedings. Ms Lowson submitted that she ought to remain a party (notwithstanding the relief sought in the Application) at least for the purposes of addressing the question of costs of the proceedings. It seems to me that that is a relevant consideration.
10. In Mrs Cesna's first affidavit she indicates that she (indirectly) contributed to the purchase of the Unit. Even as late as 28 August 2024, Mrs Cesna made such assertions in an email sent to Mr Smallwood. Those assertions have not been formalised or developed further. It is not clear to me whether Mrs Cesna wishes to properly formulate a claim for contributions to the Unit by her own action or, if assisted by any further legal representation, might wish to bring any cross-claim.
11. Nonetheless, in circumstances where Mrs Cesna has at times contended that she has in some way contributed to the deceased's purchase of the Unit, or at least her ability to purchase or retain the Unit, and in light of the submissions of Ms Lowson, I consider that Mrs Cesna ought to remain (at least for the time being) a party to the proceedings and be bound by the outcome.
12. The third question arises from submissions on the hearing, in which Mrs Cesna expressed some degree of concern about being sued in the proceedings by the plaintiff or conceptually by Mr Smallwood (though it is not clear to me how that could occur). I noted during the hearing that the only relief sought against her in the proceedings thus far is the relief sought in the amended summons. There is no need for me to speculate about this.

Other issues

1. Finally, there are two other issues which have been raised in the context of the hearing which I should briefly address.
2. First, the plaintiff asserts that Mrs Cesna was estranged from her sister which, from the plaintiff's perspective, gives some context to Ms Cesna's lack of awareness of her sister's death and the delay in the plaintiff's solicitor being able to contact her. Mrs Cesna disputes that she was estranged from her sister at least initially in life, although gives some indication in her affidavit evidence that their relationship soured over the years. There is no need for me to make any findings on the Application regarding any alleged estrangement, and I expressly do not do so.
3. Secondly, in an email sent to my Associate yesterday, Mrs Cesna took exception to a submission made on behalf of the plaintiff that Mrs Cesna had not filed her evidence for the family provision claim. She drew attention to her letter / affidavit affirmed on 6 August 2024 as being part of her evidence in preparation for the eventual hearing. There is of course also the other affidavit of Mrs Cesna affirmed 6 August 2024. Unless the parties wish me to make specific directions for the further filing and serving of substantive evidence regarding the family provision claim as part of determining the Application, I do not propose to say anything further about it.

Orders

1. The orders of the Court as are follows: 1. Notes that Lauren Gidley consents to being appointed as administrator of the estate of Christine Deanne Jurasz. 2. Orders that letters of administration be granted to Lauren Gidley. 3. Orders that publication of the notice of intention to make this application be dispensed with. 4. Orders that the requirement for an administration bond and sureties be dispensed with. 5. Orders that the matter be remitted to the Principal Registrar or one of the Senior Deputy Registrars to complete the grant. 6. Orders that the plaintiff and the defendant deliver within 7 business days to Lauren Gidley as administrator any and all instruments of title within their possession, custody or control that relate to all property of any kind which forms part of the estate of the deceased and any document evidencing or identifying any such property. 7. Notes that Lauren Gidley as administrator shall have the power to sell, call in or convert into money any part of the deceased's estate. 8. Orders that Lauren Gidley as administrator shall report to the parties to the proceedings in relation to the actions she takes and the information she obtains in the exercise of her powers and she shall provide a copy of such documents to each of the parties as each requests. 9. Orders that Lauren Gidley shall be entitled: 1. to make and be paid from the estate of the deceased all usual and proper charges at the hourly rates applicable to Glass Goodwin Solicitors, the legal practice in which Lauren Gidley is engaged, currently being $625.00 plus GST for a legal practitioner director, $300.00 plus GST - $550.00 plus GST for any employee solicitor of that practice and $150.00 plus GST for any clerk of that practice, on its usual terms for payment: 1. for her work as administrator or trustee of the estate or both; 2. for the professional and non-professional services rendered by her or that legal practice in the administration of the estate of the deceased pursuant to these orders; and 1. to engage the services of any other legal practitioner, accountant or other professional adviser in relation to the administration of the estate where she considers it necessary to do so and to pay from the estate the costs incurred in having those services provided. 1. Grants leave to Lauren Gidley and the parties to apply to the Court, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing these orders. 2. Orders that Lauren Gidley be joined as the second defendant in the proceedings, with Eileen Cesna to be designated as first defendant, and: 1. the appointment of Mrs Cesna under r 7.10(2)(b) of the UCPR be revoked; and 2. pursuant to r 7.8 of the UCPR orders that the conduct of the defence of the proceedings on behalf of the estate be committed solely by Ms Gidley. 1. Orders costs be reserved. 2. Stands the matter over to before the Probate Registrar on Thursday, 17 October 2024. 3. Grants leave to the parties to restore the matter before Meek J on 24 hours' notice by email correspondence to the Associate to Meek J.

Endnote

1. Being a reference to the NSWTG: s 3(1) PAA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2024