(e) that the executor is entitled to get in the estate of the deceased but is required to distribute it as required by law if this entitlement differs from entitlement under the will.
29 The result of all this is that in the evidence placed before Bergin J there were two misleading statements in the affidavit of Takako sworn on 10 May 2005. The present finding of the Indonesian Courts, and the position under Article 913 of the Indonesian Civil Code, is that Ryuji and Ryuzo are each entitled to a share in the estate. Paragraph 14 of that affidavit was not correct. Neither was paragraph 12. This must have been known to Takako.
30 Paragraph 20 was I consider a true statement on its own. However, paragraphs 21 and 22 if they had any purpose at all were clearly included to support the general claim in paragraph 20. It is I consider technically correct that the Stipulation 05/Pat Pen/1996 was not the result of an appeal but a determination of a superior court in exercise of its role as "supreme supervisor", the plaintiff not being represented on the consideration. However, that does not mean that paragraph 22 is not misleading. The judgment relied upon in paragraph 21 has been declared void. As I said, the plaintiff must have known of this.
31 The question then arises as to whether these misstatements and non-disclosure of the interests of Ryuji and Ryuzo were material on the question before the court. Injunctions and ex parte orders are only to be set aside if there are material matters kept from the court or if there are material misstatements which may have borne upon the decision whether or not to grant the interim relief sought. See Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 as to ex parte injunctions, and Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677 as to ex parte orders.
32 Counsel for Takako argued that paragraphs 21 and 22 were of no real significance and that paragraph 20 was correct. While that may be so, it is more likely than not that Her Honour had regard to the statement that a declaration of validity had been made in Indonesia and had not been revoked when she was considering whether or not special administration should be granted. In addition the statements that Takako and her brother were the only parties interested in the estate and that her brother consented to her making the application were on their face clearly incorrect insofar as the Indonesian proceedings now stand. Ryuji and Ryuzo have an interest in the estate, albeit not under the will. The affidavit gave the impression that the only people interested in the estate were the applicant and her brother who was a consenting party. Generally speaking in ordinary matters of administration the court is concerned to know those persons entitled on distribution whether on intestacy or in certain circumstances under a will. The fact is that the material was put before the court as relevant to the decision which Her Honour was required to make. It was, I consider, material to that decision. It is impossible to say it was not relied on. In those circumstances the appropriate order in Probate terms is to revoke the grant of special administration and I propose to make that order.
33 Mr Hallen SC did argue that it would really be a futility to do this because Takako would be entitled to bring the Equity proceedings in some capacity in any event. That is likely to turn out to be the position but that gives rise to no different considerations than those which arise in similar applications where an ex parte injunction if obtained without full disclosure is discharged. It is open in those circumstances for the party who originally obtained the injunctive order or the ex parte order such as the one in the present circumstances to apply again with complete disclosure for the same order as that discharged or revoked. In this case counsel for Takako has not indicated such application would be made and of course there is as yet no full disclosure. As I have indicated any such application would, I consider, fail as on the evidence a grant of probate of the will propounded will be obtained by Takako. The fact that the special grant has been revoked on the basis of what counsel for Ryuji would describe as improper conduct, does not mean that a grant of probate would not be made in favour of Takako. It is not necessary to consider whether or not the position would be different if Takako had been charged and convicted of an indictable offence. That is not the position here.
34 It is finally necessary to determine whether the answer to the separate question leads to a determination of the application to strike out the Equity proceedings. I have not heard full argument on this. Those proceedings were not a nullity when they were commenced. Takako had standing as administrator ad litem to bring that action. It is obvious that if those proceedings were struck out then identical proceedings will ultimately be brought in all probability upon a grant of probate being made in favour of Takako. The revocation of the special grant and the order which must necessarily follow as to the costs involved in the application for revocation are sufficient to show the disapproval of the court. Unless the Equity proceedings must be struck out the court should require them to be stayed pending the conclusion of the original Probate action, giving the plaintiff the opportunity to continue them in a new capacity, namely as executor if and when a grant is obtained. As it could not be said the answer to the separate question leads to a definite answer I should take this no further.