Case: Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998)
Outcome: followed
(Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) &amp; Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) &amp; ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. In the course of interlocutory proceedings in the Federal Magistrates Court, it became apparent that it would be contended that the commencement of this proceeding was not regular in the absence of leave having been granted for the presentation of the petition pursuant to subs (13) of s 244 , which provides as follows: "Where proceedings have been commenced in a court for the administration of a deceased person's estate under a law of a State or Territory, a petition for an order under this section in relation to the estate shall not be presented by a creditor except by leave of the Court and on such terms and conditions (if any) as the Court thinks fit." It also became apparent that reliance would be placed upon the judgment of this Court in Gonzalez v Maria de Luz Marmentini, Executrix of the Estate of the late Ida Garcia Raber, an unreported judgment of Emmet J given on 7 July 1998. I shall refer to that judgment further below, it being sufficient here to relate that the Federal Magistrates Court considered it more appropriate that the argument whether that judgment was 'plainly wrong', if there were to be such an argument, should be had in this Court, rather than in that Court. For this and other reasons to which that Court referred, on 19 July 2006 the proceeding was transferred to this Court. The parties argued the question of the applicability of s 244(13) of the Bankruptcy Act as a preliminary point. It was submitted by Mr Bigmore QC, who appeared with Mr Lyons for William Meinhardt Jr, that the applicant required the leave of the Court before presenting the petition which it had purported to present on 1 May 2006, although he accepted that, if that leave were now to be sought and granted, the grant could validly operate nunc pro tunc. Mr Sifris QC, who appeared with Mr Fary for the applicant, submitted that leave was not required in the circumstances of this case. Mr Foster, the solicitor for Victoria Treyvaud, made submissions on some legal issues arising, without indicating any particular position with respect to the application of subs (13) in the circumstances. The burden of Mr Bigmore's submission was that the Supreme Court proceedings to which I have referred are, either separately or taken together, 'proceedings ... in a court for the administration of a deceased person's estate under a law of a State or Territory' within the meaning of subs (13). Mr Sifris took issue with that proposition, contending that the Supreme Court proceedings were concerned only with identifying, and empowering according to law, the person or persons who would thereafter be responsible for the administration of the estate of William Meinhardt Sr. He relied upon the judgment in Gonzalez in support of the proposition that the 'administration' to which subs (13) refers is a general administration of the whole estate of the kind that was once done in Chancery, or a more limited analogue of that description of administration for which, for example, Pt 54 of the Rules of the Supreme Court of Victoria now provides. The one Ace which Mr Sifris had in his hand was the judgment of Emmet J in Gonzales to which I have referred. In the facts which led to that judgment, the executrix was granted probate of the will of the deceased on 6 August 1997. On 6 April 1998, a creditor filed a petition under s 244 of the Bankruptcy Act for the administration of the deceased estate in bankruptcy. It was contended that subs (13) operated as a bar to the presentation of the petition. The response to this was that s 244(13) referred only to proceedings in the nature of a general administration, and was inapplicable where the only proceedings were those which had lead to the grant of probate. Emmet J accepted that response. He said that the purpose of s 244(13) was 'to ensure that there are not two courts administering an insolvent estate or administering the estate generally'. His Honour referred to Pt 68 of the NSW Supreme Court Rules (corresponding to Pt 54 of the Victorian Supreme Court Rules ) and continued: "It is an order such as is contemplated by Pt68 of the Supreme Court Rules which I consider was in contemplation when s 244(13) was enacted. Administration suits in Australia are in fact rare for the reasons which I have briefly indicated. The purpose of s 244(13) is to ensure that where an order for the administration of an estate has been made by the Supreme Court of a State or Territory, the effect of which is to prevent any dealings with the estate otherwise than under the direction of the Court, the Bankruptcy Court will not, in conflict with such an order, seek to administer the estate." His honour also referred to s 244(9) which, he noted, suggested that the statutory draftsman had in mind that subs (13) 'would not apply to every application for the grant of probate'. Mr Bigmore dealt with Gonzalez at two levels. First, he submitted that Gonzalez was concerned with a situation in which the probate proceedings in the Supreme Court had been completed by the time the s 244 petition was presented. On his construction of subs (13), the opening words 'where proceedings have been commenced' carry the sense of proceedings which have been commenced, but remain pending, as at the date of the presentation of the bankruptcy petition. Mr Bigmore said that Emmet J's judgment was correct on the facts before him, since the probate proceedings in the Supreme Court were well concluded before the bankruptcy proceedings commenced in this Court. He submitted, accordingly, that Gonzalez should be distinguished. I do not think that Gonzalez may be distinguished in this way. It is not a situation in which an earlier case has been decided a particular way because of a fact or circumstance which does not exist in the instant case. It is, rather, a situation in which an earlier case has been decided by reference to a particular rule or proposition, whereas it might equally have been decided the same way by reference to a different rule or proposition having application to facts or circumstances which differ from those existing in the instant case. In the latter situation, the rule or proposition by reference to which the earlier case was in fact decided constitutes its ratio decidendi. It is true, of course, that the ratio decidendi of a decided case extends no further than the rules and propositions which were essential for the course of reasoning which led the case to be decided in the way that it was. However, this does not justify a later court in effectively deconstructing the earlier court's process of reasoning by postulating a more limited basis upon which the earlier case might have been, but was not, decided. Mr Bigmore's second submission was that Gonzalez was plainly wrong. He accepted that I should follow the judgment of another single judge of this Court unless I was persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): "The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable." I am a considerable distance from forming the view that the judgment in Gonzalez was wrong, much less plainly wrong. In the circumstances, I am bound to follow, and I do follow, the judgment in Gonzalez . It follows that I rule that there is nothing in s 244(13) of the Bankruptcy Act which would constitute a bar to the commencement to this proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup . Associate: Dated: 22 August 2006 Counsel for the Applicant: M.Sifris QC and P.Fary Solicitor for the Applicant: Maddocks Counsel for the Second Respondent: G.T.Bigmore QC and K.J.A Lyons Solicitor for the Second Respondent: Chambers &amp; Co Counsel for the Third Respondent: A.Foster Solicitor for the Third Respondent: Foster Harris Lawyers Date of Hearing: 10 August 2006 Date of Judgment: 22 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1106.html