Sergei Ivanovski v Walter Perdacher [2009] NSWSC 913

Sergei Ivanovski v Walter Perdacher [2009] NSWSC 913

The appointment of a representative for the deceased's estate is necessary to properly bind the estate in a money judgment and to comply with procedural rules; despite previous irregularities, the proceedings should not be dismissed, and justice requires appointing a representative and affording them an opportunity to participate.

Parties
First Plaintiff: Sergei Ivanovski; Second Plaintiff: Galina Ivanovsky; First Defendant: Walter Perdacher (deceased); Second Defendant: Marie Perdacher; Representative of First Defendant's Estate: Keith Stevens McConnell
Jurisdiction
Australia
Judgment Date
04 September 2009
Procedural Posture
Civil / Interlocutory Ruling on Appointment of Estate Representative
Outcome
Representative of first defendant's estate appointed; title of proceedings amended; proceedings stood over for further consideration; costs orders made
Legal Topics
Joinder/substitution of Parties, Representative Appointment on Death, Continuation of Proceedings After Death, Fraudulent Conveyance
Practice and Procedure Equity Joinder/substitution of Parties Representative Appointment on Death Continuation of Proceedings After Death Fraudulent Conveyance

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Parties

Sergei Ivanovski

First Plaintiff

Galina Ivanovsky

Second Plaintiff

Walter Perdacher (deceased)

First Defendant

Marie Perdacher

Second Defendant

Keith Stevens McConnell

Representative of First Defendant's Estate

Procedural Posture

Civil / Interlocutory Ruling on Appointment of Estate Representative

Legal Issues

  1. 1 Whether a representative should be appointed for the deceased defendant's estate under UCPR r 7.10(2)(b)
  2. 2 Whether proceedings should be dismissed as sought by the second defendant
  3. 3 Effect of previous 'no representative' order under UCPR r 7.10(2)(a) on proceedings where money judgment is sought against a deceased's estate

Ratio Decidendi

The appointment of a representative for the deceased's estate is necessary to properly bind the estate in a money judgment and to comply with procedural rules; despite previous irregularities, the proceedings should not be dismissed, and justice requires appointing a representative and affording them an opportunity to participate.

Court Disposition

Representative of first defendant's estate appointed; title of proceedings amended; proceedings stood over for further consideration; costs orders made

Orders

  • Provided he consents in proper form, Keith Stevens McConnell be appointed as the representative of the first defendant's estate.
  • Title to proceedings be amended to reflect Keith Stevens McConnell as representative of the estate of Walter Perdacher, deceased.