Application of Gordon Albert Salier [2017] NSWSC 473

Application of Gordon Albert Salier [2017] NSWSC 473

The administrator pendente lite would be justified in serving the originating process and carrying on the proceedings to recover the loans, as it is at least fairly arguable that the loans were advanced and not repaid, and this is consistent with the administrator's duties to get in the estate assets.

Parties
Plaintiff: Gordon Albert Salier; Deceased: Michael Joseph Hogan (deceased); Defendant (potential) / Beneficiary: Paul Martin Hogan; Beneficiary: Brendan James Hogan
Jurisdiction
Australia
Judgment Date
06 April 2017
Procedural Posture
Application for Judicial Advice (equity) / Interlocutory Application for Advice Under Trustee Act 1925 (nsw), S 63
Outcome
Application granted – judicial advice given as sought
Legal Topics
Administrator Pendente Lite, Judicial Advice, Limitation Periods, Recovery of Estate Assets, Loans Secured by Mortgage
Equity Trusts and Estates Administrator Pendente Lite Judicial Advice Limitation Periods Recovery of Estate Assets Loans Secured by Mortgage

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Parties

Gordon Albert Salier

Plaintiff

Michael Joseph Hogan (deceased)

Deceased

Paul Martin Hogan

Defendant (potential) / Beneficiary

Brendan James Hogan

Beneficiary

Procedural Posture

Application for Judicial Advice (equity) / Interlocutory Application for Advice Under Trustee Act 1925 (nsw), S 63

Legal Issues

  1. 1 Whether the administrator pendente lite would be justified in serving and carrying on proceedings to recover loans allegedly made by the deceased to Paul Martin Hogan
  2. 2 Whether the possible expiry of a limitation period affects the administrator's position

Ratio Decidendi

The administrator pendente lite would be justified in serving the originating process and carrying on the proceedings to recover the loans, as it is at least fairly arguable that the loans were advanced and not repaid, and this is consistent with the administrator's duties to get in the estate assets.

Court Disposition

Application granted – judicial advice given as sought

Orders

  • Order that applicant bring in short minutes of order in accordance with reasons
  • Costs order in favour of applicant