Lowe v Armour

REASONS FOR DECISION

1. These proceedings relate to claims brought under the Residential Tenancies Act 2010 (NSW) (RT Act) concerning a bond and goods left on the residential premises (claims).
2. The applicant, Ms Lowe, was the wife of Alexander Lowe (Deceased) (the Deceased). At the time of his death they were not divorced. Ms Lowe claims that there was a residential tenancy agreement between the Deceased and the respondent, Ms Armour in respect of premises at Horsley (premises) pages. Ms Lowe claims an interest in the bond and in goods left on the premises, including toys and clothing of her children (goods).
3. The proceedings initially came before the Tribunal on 25 June 2021. At that time Ms Lowe and Ms Armour appeared. On that occasion Ms Armour advised the Tribunal that she denied there was a residential tenancy agreement between her and the Deceased. Ms Armour claimed she was in a relationship with the Deceased and that there was no residential tenancy agreement between them.
4. Ms Lowe did not claim to be a party to the residential tenancy agreement. However, as the spouse of the deceased she claimed an interest in the bond and claimed on behalf of her children an interest in the goods left on the premises.
5. An issue arose as to the proper parties to the present proceedings, details of which are set out below. This issue is unnecessary to decide because of what has now occurred. Consequently, the Tribunal will make directions for the future conduct of these proceedings.
6. The history of what has occurred and the reasons for these directions are explained below.

The proper parties issue and how it arose

1. The Deceased died without a Will. When the proceedings were commenced, Ms Lowe had not sought or obtained a grant ofLetters of Administration of the estate. The Tribunal identified a preliminary issue about Ms Lowe's right to bring these proceedings and who were the proper parties (proper parties issue).
2. The proper party issue arose because s 61 of the Probate and Administration Act 1898 (NSW) (Probate Act) vests the property of a deceased in the NSW Trustee and Guardian (NSW Trustee). Various decisions of the courts such as Byers v Overton Investments Pty Ltd [2001] FCA 760; (2001) 109 FCA 554 have dealt with the question of whether an Executor or Administrator can bring proceedings or take action in respect of property of a deceased pending grant of Probate or Letters of Administration. In Byers the Court held that an executor of a Will "had no title to the relevant chose in action until grant of probate": Byers at 562.
3. 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.
4. In Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 White JA cast doubt on the correctness of Byers and the earlier authorities, his Honour concluding that the vesting provision in s 61, which operated in the same manner as the Ordinary in England, meant that the NSW Trustee had no power to deal with an estate and was not obliged to do so. This decision was obiter dictum, the other Judges of the Court of Appeal not deciding this issue. However, it did raise issues as to what, if anything, the NSW Trustee could do or had power to do in relation to property vested under s 61 in circumstances where Probate or Letters of Administration had not been granted by the Court and whether the NSW Trustee was a proper party to the proceedings brought by Ms Lowe.
5. Consequently, the Tribunal made directions to join the NSW Trustee as a respondent and for all parties to file and serve submissions concerning the ability of Ms Lowe to bring the claims in the present circumstances.
6. The proceedings were initially listed on 5 August 2021 to determine this issue. The proceedings were subsequently adjourned to 19 August 2021. On both 5 August and 19 August, Ms Lowe (or her representative) and the NSW Trustee appeared. Ms Armour did not appear on either of these occasions.
7. Ms Lowe and the NSW Trustee provided submissions. The topics covered included the role of NSW Trustee under s 61 of the Probate Act and the entitlement of Ms Lowe to bring proceedings in her own name in respect of the claims because she was, relevantly, an "interested person" entitled to bring a claim in connection with the bond and the goods.
8. In relation to a claim for the bond, s 175(1) of the RT Act provides: The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest (emphasis added) in the payment of a rental bond, make an order as to the payment of the amount of the rental bond.
9. In relation to the goods, s 31B of the Uncollected Goods Act 1995 (NSW) (Uncollected Goods Act) provides: 31B Orders by Tribunal relating to uncollected goods (1) The Tribunal may, on application by a depositor or a person who has an interest in uncollected goods (emphasis added), make any of the following orders - (a) an order requiring the receiver to pay compensation for uncollected goods disposed of by the receiver otherwise than in accordance with this Act, (b) an order requiring the receiver to pay compensation for uncollected goods damaged after being left in the possession of the receiver and before being claimed by the person entitled to them, (c) an order that the receiver deliver uncollected goods into the depositor's or other person's possession, (d) an order requiring the receiver to pay the proceeds of sale, or an amount equivalent to the value of the uncollected goods, to the depositor or person, (e) any ancillary order that the Tribunal, in the circumstances, thinks appropriate.
10. In the present case, the applicant claims: 1. an interest in the bond because she is a spouse who has an interest in the Deceased's estate. On intestacy Chapter 4 of the Succession Act 2006 (NSW) applies; and 2. an interest in the goods because they belong to her children, who the Tribunal understands to be minors.
11. Prima facie, these provisions might permit Ms Lowe to bring these proceedings in her own name in respect of the bond and the goods as a person "who has an interest" as that expression is used in each of the RT Act (bond claim) and Uncollected Goods Act (goods claim).
12. In relation to the role of the NSW Trustee under s 61 of the Probate Act, the NSW Trustee submitted, consistent with the observations of White JA, that it had no power to take any action. This was because its role, by reference to that of the Ordinary in England, did not permit or require it to take an active part in the proceedings or to administer the estate of the Deceased. Further, it had no power to appoint a person to represent the Estate pending grant of Letters of Administration. It also said it was not a proper party to the proceedings.
13. The NSW Trustee also noted the provision of the RT Act concerning the bond (s 175) as to who may bring proceedings. In relation to the goods, the NSW Trustee noted that the provisions in the RT Act concerning return of goods had now been repealed. In this regard the directions made by the Tribunal on 5 August 2021 had erroneously referred to ss 132(2) and 134(1) of the RT Act which have now been repealed. As stated about, goods left on residential premises are now regulated by the Uncollected Goods Act.

Unnecessary to resolve the proper party issue

1. When the proceedings were listed before the Tribunal today, 19 August 2021, the Tribunal was informed that letters of administration had now been applied for and are to be issued by the Supreme Court of New South Wales. They have not yet been lodged with the Tribunal.
2. Consequently, insofar as Ms Lowe seeks to bring these proceedings as representative of the estate of the Deceased, upon grant Ms Lowe will have authority to do so: s 44(1) of the Probate Act. Further, when a grant is made, the NSW Trustee will no longer be a necessary or proper party to the proceedings because any orders made will bind the estate once Ms Lowe is appointed as a representative.
3. In these circumstances there is no need to resolve the question of whether or not Ms Lowe could otherwise have brought proceedings on behalf of the estate without a relevant grant.
4. As to her rights as "a person who has an interest" to bring proceedings in her own name, this issue may well fall away as an issue in light of the grant of Letters of Administration. Insofar as it remains an issue, there may be factual matters to be determined (for example what are the goods in question and who owns them and who deposited them) which makes this issue it inappropriate to resolved at this time.

Directions

1. In light of the above, The Tribunal should make directions to deal with the following matters: 1. The name of the applicant to be amended upon the lodgement of letters of administration with the Tribunal; 2. The removal of the NSW Trustee upon the lodgement of letters of administration with the Tribunal; 3. The for the filing and service of evidence in relation to the application and for the fixing of the matter for final hearing.
2. In this regard, the respondent Ms Armour foreshadowed she may make a claim on the bond if it is establish there was a residential tenancy agreement.
3. Accordingly, the Tribunal makes the following directions: 1. Upon lodgement of letters of administration with the Tribunal granting to the applicant administration of the estate of the late Alexander Lowe, the name of the applicant is amended to Amber Lowe in her own right and as administrator of the Estate of the Late Alexander Lowe; 2. Subject to any extension of time, the applicant is to lodge the letters of administration with the Tribunal within 28 days from the date of these orders and serve a copy of the document upon each of Ms Armour and the NSW Trustee; 3. Upon lodgement of the letters of administration with the Tribunal, the NSW Trustee and Guardian is removed as a respondent. 4. On or before 24 September 2021 the applicant is to file and serve any evidence and submissions in support of her claims together with a short statement setting out the orders sought in respect of each item of claim and the reasons why such orders should be made. That statement must identify: 1. Whether the residential tenancy agreement was oral or in writing and the date it was entered into. If in writing a copy must be provided. 2. The amount of the bond for which claim is made. 3. The particular goods for which an order is sought. 1. On or before 8 October 2021 the respondent, Ms Armour, must file and serve any evidence and submissions in reply, including a statement setting out any claims she makes in connection with the payment of the bond. Such statement must identify the basis upon which any claim is made to the bond, the particular asserted breach or breaches of the residential tenancy agreement said to justify an order that she be entitled to retain the bond or part thereof and the amount claimed in respect of each breach and how it is calculated. 2. Evidence from all parties and their witnesses must be in the form of a signed statement or statutory declaration and all witnesses must be available for cross-examination at the hearing. 3. All evidence including witness statements and other documents provided by each party must be provided in a bundle, indexed and paginated. The bundle required by these directions must include all documents previously provided to the Tribunal so that all material is contained in one bundle. 4. Failure to comply with these orders may prevent a party relying on documents provided late or other than in accordance with these directions. 5. Documents provided to the Tribunal must be in hard copy. 6. The proceedings are to listed for hearing after 15 October 2021 on a date to be fixed by the Registrar.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 August 2021