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[2019] VSC 605
General information, not legal advice.
Supreme Court of Victoria
2019-09-06
McMillan J
Original judgment source is linked above.
WILLS AND ESTATES - Where plaintiff seeks appointment of administrator ad litem - Where plaintiff's previous application for appointment dismissed - Where instituted executor has not renounced probate - Where plaintiff alleges claims that would be choses in action of estate - Plaintiff in position of conflict of interest - Application dismissed - Greenway v McKay [1911] HCA 25; (1911) 12 CLR 310 - Re Estate of McGown [1946] VLR 113 - Hewitt v Gardiner [2009] NSWSC 705.
1 Irene Eva May Emmins died on 8 October 2009, aged 81 years. Her will dated 4 May 2006 appoints her daughter, Marlene Shannon, as the executrix and trustee of her estate. Mrs Shannon has not sought a grant of probate of the deceased's will and has not filed a renunciation of probate.
2 Pursuant to the will, the deceased's daughter and the deceased's two grandchildren (being the plaintiff and the defendant) are each entitled to a twenty per cent share of the residue of the estate. The remaining residuary beneficiaries are the plaintiff's daughter as to twenty per cent and the defendant's two children as to twenty per cent in total. No distributions from the estate have been made to the residuary beneficiaries.
3 By ex parte originating motion filed 28 August 2018, the plaintiff, as the granddaughter of the deceased and one of the residuary beneficiaries of the estate, seeks a grant of letters of administration ad litem in the estate of the deceased concerning the deceased's shares in Sorrel Holding Pty Ltd ('Sorrel') and Noojee Sawmilling & Logging Co. Pty Ltd ('Noojee'). The details of the limited grant were contained in a separate document headed 'Notice to Produce' as follows:
2. This grant is limited for the purpose of:
(a) making enquiries of, and obtaining information and documents from, any person or authority who has or is likely to have in their possession, any medical records, legal files, documents, accounts or other relevant documents touching on, or in relation to the transfer of:
(i) the shares in [Sorrel] previously held by the deceased;
(ii) the shares in [Noojee] previously held by the deceased;
(b) bringing such proceedings as she is advised in order to recover in to the estate:
(i) the shares in [Sorrel] previously held by the deceased;
(ii) the shares in [Noojee] previously held by the deceased;
(c) acting as director of the companies [Sorrel] and [Noojee];
(d) bringing such proceedings as she is advised in order to recover in to the respective companies:
(i) any assets of [Sorrel];
(ii) any assets of [Noojee];
(e) administering the companies [Sorrel] and [Noojee] to call their value in to the estate of the deceased.
6. Such further or other orders as are just and equitable.
4 In her affidavit sworn 15 August 2018, the plaintiff deposes that the deceased was the sole shareholder of 28,451 shares in Sorrel from 1978 to 17 July 2008 and that the deceased held two shares in Noojee at the date of her death. The plaintiff alleges these shares should form part of the estate of the deceased.
5 The plaintiff alleges that, on 17 July 2008, the defendant, as director of Sorrel, transferred the deceased's shares in Sorrel to himself as trustee of his family trust without the defendant paying any consideration to the deceased for the shares ('the impugned transfer'). She alleges that, since approximately May 2006, the deceased had been reliant on the defendant for assistance with her paperwork and, in approximately June 2008, the deceased suffered a stroke and thereafter lacked capacity to consent to the impugned transfer. She alleges that the deceased's shares in Sorrel were transferred as a result of undue influence or unconscionable conduct by the defendant over the deceased, alternatively, that the deceased lacked capacity to consent to the impugned transfer.
6 She also alleges that, on 25 October 2010, which was after the death of the deceased, the defendant, as director of Noojee, transferred the deceased's two shares in Noojee to Sorrel. The plaintiff deposes that, between 2007 and 2017, five properties owned by Noojee have been sold, with the sale proceeds amounting to $2,712,250.
7 The plaintiff contends there is a real issue to investigate as to whether the impugned transfer was invalid as a result of undue influence or unconscionable conduct by the defendant or due to the lack of capacity of the deceased to consent to the impugned transfer.
Procedural history after commencement of proceeding
8 The plaintiff's application was made without notice to Sorrel, Noojee, the executrix, or the other residuary beneficiaries of the estate.
9 On 27 September 2018, the Court made orders requiring the plaintiff to notify all persons with an interest in the estate of her application.
10 In the plaintiff's written submissions, it is stated that Mrs Shannon was served with the application but has taken no steps to obtain a grant or to attend any hearing, and that she has indicated that she does not wish to be a party to the proceeding. The plaintiff refers to a letter dated 14 November 2018 from Mrs Shannon's solicitors, which states:
Our client has provided us with a copy of your letter to her dated 5 October 2018.
We advise that at the present time our client does not wish to be a party to the proceedings.
11 On 2 November 2018, Brenton James Shannon filed a summons, supported by an affidavit sworn 1 November 2018, to be joined as a defendant.
12 The defendant's affidavit addresses his joinder to the proceeding. He deposes that, if joined as a defendant, he will also seek to protect the interests of his two minor children. He says that he would be significantly affected if the plaintiff's application, as set out in its initial iteration, were made as it seeks to appoint an additional director to Sorrel and Noojee, both being companies of which he is the sole director and, in his capacity as trustee of the Brenton Shannon Family Trust, he is effectively the sole shareholder. He deposes that the plaintiff's application seeks to set aside or unwind business transactions of Sorrel and Noojee and the family trust over a ten year period in circumstances where there have been substantial additions and accumulations to, and distributions out of, those companies and the family trust.
13 The defendant also deposes to certain matters set out in the plaintiff's affidavit sworn 15 August 2018 being wrong or misconceived, that the application is a fishing expedition and, if joined as a defendant, he would address these issues.
14 The defendant sets out the background concerning the two other proceedings issued by the plaintiff. The first was an originating motion filed 6 October 2017 against the defendant, Noojee and Sorrel, where the plaintiff sought, inter alia: a limited grant of administration of the estate of the deceased; freezing orders restraining the defendants from selling, disposing of, transferring and or dealing with certain properties and sale proceeds of land; restraining orders against the defendant in exercising voting rights as a shareholder of Sorrel without first providing written notice to the plaintiff, dealing with Sorrel's assets, distributing the capital of Sorrel or winding up Sorrel; and certain orders dealing with various properties and the sum of $774,569.81 then held in trust, being the sale proceeds of another property ('the first administration proceeding').[1]
15 On 20 April 2018 the first administration proceeding was dismissed and the plaintiff was ordered to pay the defendant's costs of the proceeding. Notwithstanding the dismissal of the first administration proceeding, the plaintiff sent an email at 6:16pm on 20 April 2018 to a Dr Richard Billis at the Brooke Street Medical Centre, Woodend, alleging that she was the Court-appointed administrator of the deceased's estate and that it had come to her attention that the deceased's medical files:
can only be released to the executor with a grant of probate or by court appointed administrator. Due to no probate, I am now the court appointed administrator. You may wish to double check this with your colleagues yourself. I really need these files ASAP and have no time left to get this done. Also my mother has been given some files from your practice in later 2017, without a certificate of probate. They were made available to me in an affidavit.
16 The second proceeding was a writ proceeding filed 8 March 2018 against the defendant where the plaintiff sought, inter alia, declarations that the defendant held a property known as 52 Emmins Road on trust for the plaintiff. In the alternative, she claimed an equitable charge or lien or equitable compensation, and orders for the taking of necessary accounts and the making of necessary enquiries for the purpose of determining appropriate relief ('the Emmins Road proceeding').[2]
17 The defendant raised significant concerns with the claims in the Emmins Road proceeding, noting that it was liable to be struck out or susceptible to summary judgment. Subsequently the plaintiff sent a proposed amended statement of claim to the defendant and the defendant raised similar concerns with the amended document.
18 By summons filed 4 May 2018, the defendant sought judgment against the plaintiff, alternatively, that the statement of claim be struck out. On 15 August 2018, the proceeding was compromised and a declaration was made that the defendant held 52 Emmins Road on trust for the plaintiff. Subsequently, the proceeding was dismissed.
Discovery in the earlier proceedings and this proceeding
19 The defendant deposes that there was no formal discovery of documents in the two earlier proceedings. However, he deposes that the plaintiff has been provided with, and has obtained by other means, numerous documents that he considered were sufficient to ascertain the information she now seeks, and he exhibits a schedule of documents provided to the plaintiff in the first administration proceeding. When he reviewed the schedule, he informed his solicitors it was missing the deceased's medical records primarily for the year 2009 and he instructed them to provide those documents. Those documents were provided to the plaintiff on 31 October 2018.
Defendant's position as to grant of administration ad litem
20 In respect of the plaintiff's application for an ad litem grant, the defendant deposes that it extends beyond that originally sought in the first administration proceeding. During that proceeding, his solicitors informed the Court that he would not oppose the appointment of an ad litem administrator provided that the grant was limited in scope to the pertinent issue of the validity of the inter vivos trust and, more specifically, the question of the deceased's capacity at the time of settling the inter vivos trust. He also required the appointment to be limited to a strict timetable to ensure that the administration was completed expeditiously and without further unnecessary costs being incurred. He deposes that this remains his position and that, if the Court is minded to appoint an ad litem administrator, that person should be an independent person and the plaintiff should bear the costs of the administration at the first instance.
21 The defendant deposes as to his concerns that if the plaintiff were appointed as now sought, she would not undertake the role competently, objectively or expeditiously. His view was formed as the result of the manner in which the first administration proceeding and the Emmins Road proceeding were conducted by the plaintiff. Both proceedings were plagued by substantial delays on the part of the plaintiff, including failing to make discovery on time, failing to provide position papers on time, and not proceeding with a mediation scheduled for December 2017. The substantial delays are set out in detail in the affidavits filed by his solicitors.[3]
22 On 23 November 2018, Mr Shannon was joined as a defendant to the proceeding.
23 On the morning of the directions hearing on 7 December 2018, the Court was informed that the plaintiff agreed to the appointment of an independent administrator in place of herself and a proposed amended originating motion was forwarded to the Court, but not filed. Leave was granted to the plaintiff to file and serve the amended originating motion by 14 December 2018.
24 During the proceeding, the defendant had asked the plaintiff on a number of occasions to identify any further documents she sought and stated that he would seek the documents out and provide them to her. The plaintiff did not take up the defendant's offer at any stage.
25 On 18 December 2018, the plaintiff filed an amended originating motion dated 14 December 2018, but did not serve the defendant with the document until 18 January 2019. The plaintiff's amended originating motion sought:
2. This grant is limited for the purpose of:
(a) making enquiries of, and obtaining information and documents from, any person or authority who has or is likely to have in their possession, any medical records, legal files, accounts or other relevant documents touching on, or in relation to the transfer of:
(i) the shares in [Sorrel] previously held by the deceased;
(ii) the shares in [Noojee] previously held by the deceased;
(b) representing the estate in any action or proceeding which may be instituted by the administrator in order to recover in to the estate:
(i) the shares in [Sorrel] previously held by the deceased;
(ii) the shares in [Noojee] previously held by the deceased;
(c) obeying and carrying into execution all judgment or orders of the Court relating to such action or proceedings until final judgement shall be had or made therein and such judgements shall be carried into execution and the execution thereof fully completed, and with the power, for purpose of satisfying any such judgments or orders or carrying into effect any compromise, to exercise or enforce against any person whatsoever all right of indemnity or contribution which the said decades [sic] or his [sic] estate may have in respect of or arising out of or in connection with the said action or proceedings and to receive from and give receipts to such persons for any monies payable in respect of damages or cost or otherwise adjusted to be recoverable in such proceedings or agreed to be paid in compromise thereof, and with the power to do all things necessary to carry into effect the provisions of the Administration and Probate Act in respect of any such action or proceeding.
6. Such further or other orders as are just and equitable.
26 An affidavit of the defendant's solicitor, Mr Andrew Blogg, sworn 6 March 2019, sets out in some detail the communications between the defendant's solicitors and the plaintiff's solicitors from the commencement of the proceeding up to 5 March 2019. Notably, while the proceeding commenced on 28 August 2018, it was not until 18 January 2019 that the plaintiff finalised her relief when the amended originating motion was served on the defendant. Following service, there were further delays by the plaintiff or her legal representatives by failing to file relevant documentation prior to directions hearings, attempting to proceed at directions hearing without the relevant documents being filed or served, and seeking to hand documents to the defendant on the day of a directions hearing.
27 Prior to the directions hearing on 22 February 2019, the parties filed consent orders that provided letters of administration of the estate to be granted to an independent person subject to the limitations set out in order 2 of the amended originating motion and also the dispensing orders set out in orders 3 and 4. In respect of the costs, the consent orders provided that the costs of the appointed administrator in relation to the making of enquiries under order 2(a) be paid by the plaintiff at the first instance and the issue of the costs of the parties was reserved. In a letter dated 19 February 2019 to the plaintiff's solicitors, the defendant's solicitors noted that the defendant had been advocating for some time that the administrator should be an independent person and that it was not until 19 February that the plaintiff conceded that the appointment of an independent person was appropriate. In those circumstances, the defendant sought an order that the plaintiff pay the defendant's costs of the proceeding. By return email, the plaintiff's solicitors rejected the defendant's position.
28 The Court required the parties to attend the directions hearing on 22 February 2019 to discuss the form of orders sought, specifically the scope of the second proposed consent order. At that directions hearing, counsel for the plaintiff referred to an unfiled and unserved affidavit of Kayla Marie Kristensen sworn 21 February 2019 ('the Kristensen affidavit'). The Court required the plaintiff to file the Kristensen affidavit, to address the defendant's concerns and the Court's concerns as to the scope by written submissions prior to the next directions hearing.
29 After this directions hearing, the defendant's solicitors sought clarification from the plaintiff's solicitors, inter alia, as to the question of the payment of an independent administrator, the time limitation of any orders and the payment of the defendant's costs. On 5 March 2019, the plaintiff's solicitors notified the defendant's solicitors that the plaintiff would pay the fees of an independent administrator 'in the first instance' and suggested a temporal limit of the orders of 90 days but made no mention of the defendant's costs. On the same day, the defendant's solicitors received the plaintiff's written submissions, which contained a significant change of position on the part of the plaintiff in that it now sought that she be the ad litem administrator.
30 At the directions hearing on 8 March 2019, counsel for the plaintiff again spoke of matters that were not referred to in any filed affidavits. In general terms, this appeared to relate to the plaintiff's funding for the appointment of an independent administrator, whereas the written submissions seek the appointment of the plaintiff. At this stage, the Kristensen affidavit had not been filed and the directions hearing was again adjourned to enable the plaintiff to file and serve the Kristensen affidavit by 12 March 2019 and any further affidavits by the plaintiff to be filed the next week and the proceeding would be considered on the papers. The Kristensen affidavit, comprising 42 paragraphs and 39 exhibits, was filed on 19 March 2019 and served almost a week later. The affidavit deposed to Ms Kristensen's attempts to identify an independent administrator and certain communications between the solicitors for the parties as to whether the plaintiff would be able or willing to abide the undertaking in respect of the defendant's proposed costs orders.
31 On 26 March 2019, the plaintiff filed a further affidavit sworn by Kayla Marie Kristensen, exhibiting emails dated 8 March 2019, whereby counsel for the plaintiff referred to communications in mid-February 2019 with Ms Kallweit, solicitor, as to her capacity to act as ad litem administrator on the basis that funds of $20,000 were deposited in trust. Counsel enquired whether Ms Kallweit was still willing to act on that basis. By return, Ms Kallweit advised she would be prepared to act on that basis provided there was also an undertaking that her costs would be paid in case she should issue proceedings supported by the plaintiff, but for whatever reasons could not recover her costs.
32 By letter dated 27 March 2019, the solicitors for the defendant informed the Court that the Kristensen affidavit had now been served and, for the avoidance of doubt, the defendant did not oppose the appointment of Ms Kallweit as independent administrator and for the Court to make orders as considered appropriate on the papers. In that regard, the defendant submitted that such appointment of an independent administrator be limited in scope to the enquiries set out in paragraph 2(a) of the amended originating motion, with such enquiries being for the purposes of ascertaining whether the transfer of shares unlawfully deprived the deceased's estate of an asset or assets. The defendant submitted that the appointment should have a temporal limit of 90 days within which to report back to the Court, which was agreed by the plaintiff, and also sought the costs of the proceeding.
33 As to the costs of the proceeding, the defendant submitted that given he had at all times agreed to the appointment of an independent administrator, then he ought receive his costs of the proceeding. This was particularly so in light of Ms Kristensen's affidavit sworn 25 March 2019, where she deposes that, once the administrator's initial enquiries had been completed, the plaintiff would discuss with the administrator the steps to be taken in relation to any further proceeding, including any funding requirements.
34 A grant of administration ad litem is made pursuant to the Court's inherent or general statutory jurisdiction to grant administration.[4] A grant ad litem provides for an administrator to represent a deceased's estate for the purpose of enabling an estate to bring or defend legal proceedings and generally confers powers with respect to the management of the legal proceeding on behalf of an estate.[5] Commonly referenced examples can be found in Re Estate of McGown and Greenway v McKay.[6] In Re Estate of McGown, a grant was made appointing an administrator ad litem to represent the deceased's estate to defend any proceedings instituted by the victims arising out of a motor vehicle accident that the deceased had caused.[7] Greenway v McKay concerned the grant of letters of administration ad litem to the widow of the deceased, limited for the purpose of commencing proceedings against the deceased's employer under the Wrongs Act 1890 for injuries suffered by the deceased in the course of employment which caused his death. [8]
35 A grant ad litem is necessary where there is no personal representative willing or able to take out a grant of probate or administration and proceedings involving the deceased cannot be continued or finalised without a representative of the deceased's estate.[9] The Court will not make a limited grant ad litem where there is an appropriate person available to take out a general grant of administration.
36 The Court exercises careful consideration of the form and scope of a such a grant as an administrator ad litem is for all purposes the representative of the estate within the limits of the grant, with the administrator's actions having the effect of binding the estate of a deceased and the entitlements of beneficiaries of an estate.[10]
37 Pursuant to s 57 of the Administration and Probate Act 1958 and r 7.01 of the Administration and Probate Rules 2014, the Court may require an appropriate bond or guarantee to secure the performance of the duties of an ad litem administrator.[11] The Court has a discretion whether or not to require a guarantee, although ordinarily the Court will require a guarantee unless good reason is shown why a guarantee should not be required.[12]
38 The plaintiff's written submissions appear to seek that the plaintiff be appointed as the administrator ad litem on behalf of the estate, limited to being authorised to make, enquiry and carry out investigations for the purpose of deciding whether the impugned transfer was invalid as a result of undue influence or unconscionable conduct by the defendant or as a result of the lack of capacity of the deceased to consent to the impugned transfer, and then deciding whether such a proceeding should be issued by the estate of the deceased against the defendant.
39 The plaintiff submitted that, as Mrs Shannon had indicated she did not wish to be a party to the proceeding, the plaintiff was willing to be appointed as an administrator ad litem, but also agreed to the appointment of an independent person. It was submitted that, as a first step, the Court should 'clothe someone with authority to make enquiry and carry out investigations'. Upon obtaining that information, a decision could then be made as to commencing proceedings and, as advised, a statement of claim could be drawn. An independent person could take their own advice and, if uncertain, could make application 'in the nature of a Beddoe style of application'. If the plaintiff were the limited administrator, she could be authorised to make enquiries and bring such proceedings.
40 The plaintiff's submissions also state that the 'up front' payment required by an independent person was 'creating difficulties identifying and appointing such a person'. However, the plaintiff continues to be willing to act as the ad litem administrator with her solicitors. She submitted that the estate would be protected by: (i) limiting the enquiries to be made within, say, 90 days, to allow the relevant medical people to respond to enquiries and speak to her solicitor; by requiring leave of the Court to be sought before issuing any proceeding, in a similar manner to a Beddoe application; and by requiring that application for leave to bring any such proceedings be made within a particular time frame.
41 The defendant's submissions addressed what was thought to be the plaintiff's final form of orders in any limited grant, namely, a grant limited for the purposes of:
making enquiries of, and obtaining information and documents from, any person or authority who has or is likely to have in their possession, any medical records, legal files, accounts or other relevant documents touching on, or in relation to the transfer of the shares in Sorrel and Noojee previously held by the deceased ...
42 The defendant did not oppose the appointment of an independent administrator, subject to the following requirements:
(a) any appointment be limited in scope to the enquiries set out above, with such enquiries being for the purposes of ascertaining whether the transfer of shares unlawfully deprived the deceased's estate of an asset or assets;
(b) any appointment be limited to 90 days, within which time the administrator be required to report to the Court, which he thought was agreed by the plaintiff; and
(c) the plaintiff pay the defendant's costs of the proceeding.
43 The plaintiff's form and scope of the orders as originally sought and the now amended orders sought are not in the form of the usual orders made in an ad litem grant. The usual form of orders appoints an administrator to represent a deceased's estate for the purpose of enabling the estate to bring or defend legal proceedings and to confer powers with respect to the management of the legal proceeding on behalf of the estate.
44 The plaintiff's application is now limited to making enquiries, and obtaining information and documents from, any person or authority who has or is likely to have in their possession, any medical records, legal files, accounts or other relevant documents touching on, or in relation to the transfer of the shares in Sorrel and Noojee previously held by the deceased.
45 The defendant's acceptance of this proposed order was premised on three conditions, all of which were reasonable and appropriate in the event that the Court appointed an independent ad litem administrator. Ultimately, the plaintiff was unable to meet two of the three conditions, namely, the funding of an independent administrator and the costs orders sought by the defendant.
46 Prima facie, as a residuary beneficiary under the deceased's will, the plaintiff has no personal right upon which she can seek to set aside the impugned transfer on the alleged grounds of undue influence or unconscionable conduct by the defendant or lack of capacity of the deceased. Such a proceeding would be a chose in action held by the estate of the deceased and is a not a personal equity of any of the beneficiaries of the deceased's estate.
47 Prima facie, it is the executor of an estate who has standing to bring any such proceeding on behalf of the estate. In seeking to take the steps now sought in the amended limited orders, the plaintiff seeks to represent the estate of the deceased. In certain circumstances, a beneficiary may pursue a claim that ordinarily vests in the executors of an estate, such as where an executor is unable or unwilling to bring the proceeding and the action is meritorious.[13] In the usual course, the executor would be joined as a defendant to any proceeding.
48 Mrs Shannon is the instituted executor of the deceased's will. Contrary to the plaintiff's submission that there is no appropriate person to take out a grant of administration in the estate, Mrs Shannon's letter dated 14 November 2018 states that she does not wish to be a party to this proceeding 'at the present time'. In her letter, she also refers to a previous letter to the plaintiff dated 16 May 2018. In that letter, Mrs Shannon's solicitors stated that, in order to avoid a further application being issued by the plaintiff that might necessitate the involvement of Mrs Shannon, she was prepared to take all reasonable steps and do all things within her capacity as nominated executor to provide the plaintiff with further documentation that the plaintiff requires in relation to the estate if she can access same. The letter noted that this proposal was put forward in the hope that Mrs Shannon could resolve any outstanding discovery issues that might remain without the need for any further proceedings.
49 The letter dated 16 May 2018 also referred to an earlier letter dated 8 November 2017, in which Mrs Shannon's then solicitor informed the plaintiff's solicitor that his client reserved her position as the instituted executor of the deceased's will, and that if circumstances arose that indicated she should apply for a grant, she would do so. The letter advised that the reason she had never applied for a grant was that the deceased died without assets of sufficient worth to justify an application.[14] Where there is an appropriate person available to take out a general grant of administration, the Court generally will not make a limited grant ad litem to another person.
50 The plaintiff seeks to rely on the Court's decision in Mataska v Browne as authority for the proposition that an ad litem grant may be made in circumstances where 'careful investigation' is required as to an inter vivos transfer.[15] The facts in that case differ in two important regards. First, the executor in Mataska was not an independent person, but rather the defendant in the proceeding and the beneficiary of the inter vivos transactions. In this proceeding, there is no allegation of wrongdoing on behalf of the named executor; in fact, the named executor has a 20 per cent interest in the residue of the estate and is in an ideal position to evaluate any potential claims on behalf of the estate. Secondly, the plaintiff in Mataska may have been unable to bring a beneficiary action as referred to above, as she had been 'written out' of the deceased's will.
51 The defendant does not object to an independent administrator being appointed. Although the plaintiff also agreed to an independent appointment, ultimately she sought to be appointed herself as a result of lack of funds for an independent administrator.
52 There are sound reasons for an appointment of an independent administrator as opposed to an administrator who is a beneficiary of an estate. An ad litem administrator represents the estate within the limits of the grant. An administrator's actions bind the estate and may affect the entitlements of all beneficiaries of an estate and necessarily will have cost consequences for the estate. Prima facie, an ad litem administrator may also be perceived to have an entitlement to indemnification from the estate for costs incurred as administrator. This would not be appropriate given the plaintiff's conduct in this proceeding and the previous proceedings. She has shown scant regard in complying with orders made in any of the proceedings that she has initiated and all of the proceedings were plagued by substantial delays and a lack of clarity. The plaintiff was also untruthful when she represented to Dr Billis at the Brooke Street Medical Centre Woodend that she was the Court-appointed administrator of the deceased's estate at a time when she well knew that she was not so appointed and that her application for appointment as the ad litem administrator of the estate in the first administration proceeding had been dismissed.
53 In initiating this proceeding, the plaintiff was seeking substantially the same order as was sought in the first administration proceeding. No explanation was provided by her for doing this in this proceeding some four months later, nor was there an explanation for issuing the proceeding ex parte when it was clear that Mrs Shannon and the defendant were interested parties. The plaintiff or her legal representatives have also caused substantial delay in this proceeding, as was the case in the first administration proceeding and the Emmins Road proceeding. Equally, in respect of the plaintiff's submission that the administrator make a 'Beddoe type application' in her capacity as an ad litem administrator, such an application may be perceived as giving some judicial imprimatur in bringing a claim on behalf of the estate.[16]
54 It is now almost ten years since the deceased died. The plaintiff issued the first administration proceeding eight years after the deceased's death. During that proceeding, the Emmins Road proceeding and this proceeding, the defendant and Mrs Shannon cooperated with the plaintiff towards the provision of substantial amounts of documentation in relation to the deceased and the estate. Throughout this proceeding, the defendant also offered to provide any further documents that the plaintiff still seeks; however, the plaintiff has not taken up those offers.
55 Finally, the plaintiff also sought dispensation from the requirement for the filing of an administration guarantee in order to secure her performance of the duties as administrator. In the ordinary course, a guarantee is required unless good reason is shown to the contrary. The dispensation from filing an administration guarantee was not addressed by the plaintiff's submissions. The fact that the plaintiff was unable to raise the funds for the costs of an independent administrator suggests that she may not be able to provide a surety guarantee.
56 For these reasons, the Court is not satisfied that a limited grant of administration ad litem should be granted in the terms proposed.
57 Accordingly, the Court orders that the proceeding be dismissed and the plaintiff pay the defendant's costs on the standard basis, to be taxed in default of agreement.
[1] Proceeding S CI 2017 03997, in which the plaintiff's affidavit sworn 5 October 2017 is substantially the same as her affidavit sworn 15 August 2018 in this proceeding.
[3] Affidavit of Robert Andrew Bradley, sworn 13 November 2018, which exhibits the earlier affidavits of 24 January 2018, 1 February 2018, 22 March 2018 and 19 April 2018 and the affidavit of Rachel Lee Hocking sworn 4 May 2018.
[4] GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) [11.53].
[5] Greenway v McKay [1911] HCA 25; (1911) 12 CLR 310; Re Estate of McGown [1946] VLR 113; Hewitt v Gardiner [2009] NSWSC 705.
[10] Re Estate of Coe [2013] NSWSC 968, [10] (Young AJ), citing Faulkner v Daniel [1843] EngR 1214; (1843) 67 ER 355, 359 (Wigram VC).
[11] See Re Estate of Freebairn [2005] SASC 497; (2005) 93 SASR 415, 420 [22] (Besanko J).
[13] Ramage v Waclaw (1988) 12 NSWLR 84; Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109; Hewitt v Gardner [2009] NSW 705; Porker v Richards [2016] SASC 98; De Lorenzo v De Lorenzo [2019] NSWSC 534.
[14] Cf Scallan v Scallan [2001] NSWSC 1129 [9]-[10] (Windeyer J), where an ad litem grant was made to the brother as the executor was not willing to bring an undue influence claim against himself.
[15] Mataska v Browne [2013] VSC 62 ('Mataska').
[16] De Lorenzo v De Lorenzo [2019] NSWSC 534, [62] (Ward CJ in Eq).
Plaintiff
BRENTON JAMES SHANNON
(1911) 12 CLR 310
(2005) 93 SASR 415
(1988) 12 NSWLR 84
(2004) 216 CLR 109