NSW Trustee and Guardian v . [2018] NSWSC 1020

NSW Trustee and Guardian v . [2018] NSWSC 1020

The Court was satisfied that the deceased had no surviving next of kin and thus approved a Benjamin order authorising the Trustee to distribute the estate to the Crown as bona vacantia. The application for an indemnity costs order was refused due to the unexplained and significant delay in finalising the estate.

Parties
Plaintiff: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
28 June 2018
Procedural Posture
Administration of Intestate Estate / Application for Benjamin Order; Determination of Entitlement and Costs
Outcome
Benjamin order granted; costs order deferred
Legal Topics
Intestate Estates, Distribution to Crown (bona Vacantia), Benjamin Order, Costs in Estate Administration
Wills and Probate Equity Intestate Estates Distribution to Crown (bona Vacantia) Benjamin Order Costs in Estate Administration

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Parties

NSW Trustee and Guardian

Plaintiff

Procedural Posture

Administration of Intestate Estate / Application for Benjamin Order; Determination of Entitlement and Costs

Legal Issues

  1. 1 Whether the deceased was survived by any next of kin entitled to share in his intestate estate
  2. 2 Whether the Plaintiff should be justified in distributing the estate to the Crown as bona vacantia
  3. 3 Whether an order for costs on an indemnity basis should be made in favour of the Plaintiff

Ratio Decidendi

The Court was satisfied that the deceased had no surviving next of kin and thus approved a Benjamin order authorising the Trustee to distribute the estate to the Crown as bona vacantia. The application for an indemnity costs order was refused due to the unexplained and significant delay in finalising the estate.

Court Disposition

Benjamin order granted; costs order deferred

Orders

  • The plaintiff is justified in distributing the estate of Henry Lewis Cooper to the Crown as bona vacantia, without prejudice to any subsequent claimants’ rights.
  • The plaintiff is granted liberty to apply with respect to costs within 28 days.