[2023] NSWSC 519

In re the estate of Loo (Deceased)

Grant of special administration ad colligenda bona defuncti and transfer to Supreme Court of Western Australia. See [9]

Catchwords

DECEASED ESTATES – Application for a grant of special administration ad colligenda bona defuncti – Where deceased was the shareholder in and sole director of a company which has received a creditor’s statutory demand under the Corporations Act 2001 (Cth) – Where it is not known with certainty if the deceased left a will but none has presently been found – Necessity for the appointment of a special administrator to protect the interests of the company which may need to bring an application to set aside the statutory demand – Where time limit will imminently expire – HELD – Orders made for the grant of special administration ad colligenda bona defuncti JURISDICTION – Where the plaintiff is resident in Western Australia, the company’s registered office is in Western Australia and all other potentially interested persons are in Western Australia – Jurisdiction to make the orders sought conferred on the Court by Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9(a)

Cases cited

Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton[2021] NSWSC 79
Application of Rinehart[2020] NSWSC 1624
Fazio v Naso[2016] WASC 385
Simone Starr-Diamond v Talus Diamond (No. 3)[2013] NSWSC 351

Legislation cited

Administration Act 1903 (WA)
Corporations Act 2001 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Supreme Court Act 1935 (WA)

Judgment

[1]
As a matter of urgency, the plaintiff, who is the widow of the late Lean Foo Loo (the Deceased) who passed away on 3 March 2023, moves the Court by Summons sued out (with leave) on 17 May 2023 for a grant of special administration ad colligenda bona defuncti with respect to the estate of the Deceased.
[2]
The circumstances which necessitate the application are:
[3]
The grant sought is limited to doing those things necessary to protect the Company’s interests with respect to the statutory demand.
[4]
The plaintiff is resident in Western Australia and the Company’s registered office is also in that State.
[5]
However, Mr Man Chun Yeung, the plaintiff’s solicitor, gave evidence that she speaks Mandarin and Cantonese. She speaks very little English. The Plaintiff sought to retain a Western Australian solicitor who speaks a Chinese language, but it transpired that the solicitor appeared not to have experience in this type of matter. Hence, Mr Yeung, who is a Sydney solicitor and friend, accepted instructions to act for her on this application. In the time available prior to the expiry of the statutory period to make an application in connection with the statutory demand, it would apparently not be feasible to find another Chinese speaking practitioner in that State.
[6]
Section 18 of the Supreme Court Act 1935 (WA) and s 4 of the Administration Act 1903 (WA) confer on the Supreme Court of Western Australia jurisdiction to make the orders sought.
[7]
There is no suggestion that the estate of the Deceased includes any property in this State.
[8]
I am conscious of the fact that in granting this urgent relief, I am doing so exercising jurisdiction conferred on this Court by the combined effect of s 9(a) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA): see Simone Starr-Diamond v Talus Diamond (No. 3) [2013] NSWSC 351; Application of Rinehart [2020] NSWSC 1624.
[9]
The orders sought are in line with orders made by Parker J in Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79. The principles which apply to making such orders are the same in Western Australia and this State: see, eg, Fazio v Naso [2016] WASC 385 at [9]-[10] per Master Sanderson.
[10]
I think it is appropriate for the Court mero motu to transfer the matter to the Supreme Court of Western Australia and to note that the plaintiff has undertaken to the Court to make an application to the Supreme Court of Western Australia for an ordinary grant of administration of the Deceased’s estate as soon as reasonably practicable after having obtained control of the assets the subject of this grant.
[11]
I make orders in accordance with the Short Minutes of Order which I have initialled, dated today’s date, stamped with the Court’s seal and placed with the papers, as follows:
1. (1)
  Order that a grant of special administration ad colligenda bona defuncti be granted to Hon Fa KUNG (Plaintiff) in the estate of the late Lean Foo LOO.
2. (2)
  Order that the grant not include the power to distribute assets.
3. (3)
  Order that publication of the notice of intention to make the application be dispensed with, for the purposes of the application for this grant only.
4. (4)
  Order that the administration bond and sureties be dispensed with, for the purposes of the application for this grant only.
5. (5)
  Order that further compliance with the probate rules be dispensed with, for the purposes of the application for this grant only.
6. (6)
  Order that there be liberty to apply.
7. (7)
  Order that the plaintiff’s administration of the estate be otherwise limited to:
8. (8)
  Order that the costs of these proceedings be paid out of the estate on an indemnity basis.
9. (9)
  Notes that the plaintiff undertakes to make an application to the Western Australian Supreme Court for an ordinary grant of administration of the deceased’s estate as soon as reasonably practicable after having obtained control of the assets the subject of this grant.
10. (10)
  These orders are to be entered forthwith.
11. (11)
  These proceedings are transferred to the Supreme Court of Western Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).