Kadiev v Petrov [2023] NSWSC 1031

Kadiev v Petrov [2023] NSWSC 1031

The Court lacks power to make a barring order under s 93(2) Probate and Administration Act 1898 (NSW) before expiry of the mandatory 3-month period; all statutory preconditions must be strictly complied with regardless of party consent; as the 3-month period elapsed and the defendant was not prosecuting the claim, a barring order was granted.

Parties
Plaintiff: Zora Kadiev; Defendant: Betty Petrov
Jurisdiction
Australia
Judgment Date
30 August 2023
Procedural Posture
Successsion Proceedings Application for Barring Order / Principal Judgment Application for Barring Order Under S 93 Probate and Administration Act 1898 (nsw)
Outcome
Defendant's claim barred; plaintiff's costs paid from estate.
Legal Topics
Executors and Administrators, Distribution of Estate, Statutory Construction, Barring of Claims Against Estate
Succession Law Equity Executors and Administrators Distribution of Estate Statutory Construction Barring of Claims Against Estate

Case Brief

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Parties

Zora Kadiev

Plaintiff

Betty Petrov

Defendant

Procedural Posture

Successsion Proceedings Application for Barring Order / Principal Judgment Application for Barring Order Under S 93 Probate and Administration Act 1898 (nsw)

Legal Issues

  1. 1 Whether Court has power to make a barring order under s 93 Probate and Administration Act 1898 (NSW) prior to expiry of 3-month period
  2. 2 Whether period in s 93(2) may be abridged by Court
  3. 3 Effect of consent of parties on power to make barring order

Ratio Decidendi

The Court lacks power to make a barring order under s 93(2) Probate and Administration Act 1898 (NSW) before expiry of the mandatory 3-month period; all statutory preconditions must be strictly complied with regardless of party consent; as the 3-month period elapsed and the defendant was not prosecuting the claim, a barring order was granted.

Court Disposition

Defendant's claim barred; plaintiff's costs paid from estate.

Orders

  • Order pursuant to s 93(2) Probate and Administration Act 1898 (NSW) barring the defendant from making any claim against the plaintiff as executrix of the estate of the late Slave Petrov.
  • Order that the plaintiff's costs of the proceedings, calculated on the indemnity basis, be paid out of the estate of the deceased.