Case: McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623
Outcome: applied
(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 period leading to about the middle of the nineteenth century in England, the Court of Chancery exercised a jurisdiction whereby it undertook the general administration of a trust, or a deceased estate. A decree for general administration was made as of course upon application by a beneficiary. The history of the proceeding is set out in the judgment of Young J in McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623. His Honour said (at 633): "[By] 1850 the law was that if any beneficiary came to the court at all and asked for general administration, general administration would be decreed as of course. The court would order that the trust was to be specifically performed under its supervision, that nothing was to be done without its imprimatur, that accounts should be taken to see what the trust assets were and the court would give directions as to how the trust would be carried out." I have also been referred to Williams, Mortimer and Sunnucks , Executors, Administrators and Probate, 18 th ed , 2000. In that edition, the authors say (at p38): "In the nineteenth century the main business of the Chancery Masters was the administration of the estates of deceased persons. It was common for estates to be administered in Chancery and testators sometimes even directed in their wills that the estate should be so administered. If the assistance of the court was required, the only relief available was the making of a full administration order. This terminated the authority of the representative to administer and put the whole of the administration in the hands of the court, a necessarily expensive and slow matter. A full administration order required (and still requires, if one were to be made) accounts to be taken of the testator's debts, and of his property come to the hands of the representatives and an inquiry as to what part of his property was outstanding or undisposed of, and whether it was subject to incumbrances. There was (and theoretically still is) machinery for advertising for creditors, requiring creditors to come in and prove their claims, and for examining the representatives' accounts." For reasons explained both by Young J and by Williams et al , proceedings for the general administration of trusts became increasingly less frequent in the second half of the nineteenth century, and are today all but unknown. There is a simpler and more flexible procedure under which a beneficiary may obtain particular relief in relation to a deceased estate or a trust, without the need to place the whole estate or trust under the general administration of the court. In Victoria, that procedure is established by Pt 54 of the Rules of the Supreme Court of Victoria . However, courts of equity retain their jurisdiction to make general administration decrees, even if the existence of that jurisdiction may be regarded, in contemporary times, as theoretical. Indeed, in McLean itself, although Young J ultimately did not make the (interlocutory) general administration order which had been sought in the proceedings before him, his refusal to do so depended in no sense upon a view that jurisdiction was lacking, or that an order for general administration could no longer be made by a court of equity. In the proceedings before me, Mr Sifris argued that a proceeding for administration by the court, of either the traditional, general, kind or the more flexible and specific kind for which Pt 54 of the Rules of the Supreme Court of Victoria provides, is the kind of proceeding to which s 244(13) of the Bankruptcy Act refers. He said that a proceeding of this kind was conformable with the natural meaning of the phrase 'proceedings ... in a court for the administration of a deceased person's estate'. Mr Bigmore submitted that so to construe subs (13) was to narrow down the natural meaning of the words found therein without any apparent grammatical or contextual justification. While accepting, as I understood him, that the subsection did extend to proceedings for general administration or under Pt 54 , he submitted that the natural meaning of the words extended also to a situation in which someone had applied for a grant of probate, or for letters of administration, in relation to a deceased estate. In these situations, the estate would be administered by or under the direction of the person to whom the grant had been made, and proceedings in a court were necessary to obtain the grant.