Rada v Public Trustee Re Estate of Lansky [2005] NSWSC 1370

Rada v Public Trustee Re Estate of Lansky [2005] NSWSC 1370

The administrator pendente lite was entitled to have his remuneration, costs, fees and expenses paid out of the estate because s73 empowered such an order, his post-discontinuance work needed to close and preserve the administration was incidental to the appointment, and any possible application by Dr Scheibner to recover such costs from the unsuccessful plaintiffs did not defeat the administrator's right to payment from the estate. The amounts were to be fixed by the Registrar, and the court would order a charge against the estate assets but not a first charge on the information before it.

Jurisdiction
Australia
Judgment Date
31 October 2005
Procedural Posture
Probate Application Concerning Remuneration and Costs of Administrator Pendente Lite / Notice of Motion After Discontinuance of Probate Proceedings
Outcome
Remuneration and costs of administrator pendente lite to be paid out of the estate.
Legal Topics
['remuneration of Administrator Pendente Lite' 'costs of Special Administration' 'payment Out of Estate' 'charge Against Estate Assets' 'alleged Forged Will']
['wills, Probate and Administration' 'equity' 'costs'] ['remuneration of Administrator Pendente Lite' 'costs of Special Administration' 'payment Out of Estate' 'charge Against Estate Assets' 'alleged Forged Will']

Case Brief

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Procedural Posture

Probate Application Concerning Remuneration and Costs of Administrator Pendente Lite / Notice of Motion After Discontinuance of Probate Proceedings

Legal Issues

  1. 1 ['Whether the administrator pendente lite should receive remuneration and costs out of the estate.' 'Whether the costs and remuneration should instead be borne by the unsuccessful plaintiffs who brought the proceedings leading to the appointment.' 'Whether the administrator had a duty to return to the court for directions after becoming aware of police views and a document examiner certificate concerning the alleged forgery.' "Whether the administrator's costs, fees and expenses should be a first charge or a charge against the estate assets."]

Ratio Decidendi

The administrator pendente lite was entitled to have his remuneration, costs, fees and expenses paid out of the estate because s73 empowered such an order, his post-discontinuance work needed to close and preserve the administration was incidental to the appointment, and any possible application by Dr Scheibner to recover such costs from the unsuccessful plaintiffs did not defeat the administrator's right to payment from the estate. The amounts were to be fixed by the Registrar, and the court would order a charge against the estate assets but not a first charge on the information before it.

Court Disposition

Remuneration and costs of administrator pendente lite to be paid out of the estate.

Orders

  • ["The administrator's costs, fees and expenses are to be assessed and are to be a charge against the assets of the estate, payable before any distribution to any beneficiary." "The Registrar is to fix the administrator's remuneration on a time basis, determining whether the hourly rates for the administrator and his...