Greenway v McKay [1911] HCA 25

Greenway v McKay [1911] HCA 25

The Supreme Court was entitled to grant administration ad litem for the limited purpose of enabling the appellant to bring an action for damages where delay in applying for administration was caused by poverty and the statute of limitations was about to expire. There was no requirement to comply strictly with the notice provision where peculiar circumstances existed. The respondent was not a person entitled to move for revocation of the grant as he had no beneficial or creditor interest in the estate. The revocation of the administration grant was therefore in error both as a matter of jurisdiction and discretion.

Parties
Appellant: Greenway; Respondent: McKay
Jurisdiction
Australia
Judgment Date
09 June 1911
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
Appeal allowed
Legal Topics
Limited Grant of Administration, Action for Death Caused by Negligence, Notice Requirements, Peculiar Circumstances for Administration, Statutory Limitation Under Wrongs Act 1890
Probate Administration Tort Limited Grant of Administration Action for Death Caused by Negligence Notice Requirements Peculiar Circumstances for Administration Statutory Limitation Under Wrongs Act 1890

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Greenway

Appellant

McKay

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether limited administration ad litem may be granted without strict compliance with notice requirements under Probate and Administration Rules 1906
  2. 2 Whether poverty and impending statutory limitation suffice as 'peculiar circumstances' to justify such limited administration
  3. 3 Whether a defendant in a proposed action is a person 'interested' for the purpose of applying to set aside the grant of administration

Ratio Decidendi

The Supreme Court was entitled to grant administration ad litem for the limited purpose of enabling the appellant to bring an action for damages where delay in applying for administration was caused by poverty and the statute of limitations was about to expire. There was no requirement to comply strictly with the notice provision where peculiar circumstances existed. The respondent was not a person entitled to move for revocation of the grant as he had no beneficial or creditor interest in the estate. The revocation of the administration grant was therefore in error both as a matter of jurisdiction and discretion.

Court Disposition

Appeal allowed

Orders

  • Order appealed from rescinded
  • Motion to revoke probate discharged