Bayside Council v Estate of Goodman

1. [1]

   The plaintiff in these proceedings is Bayside Council (formerly The City of Botany Bay Council) (the Council).

2. [2]

   These reasons for judgment concern relief sought by the Council ex parte by notice of motion which has been amended to seek the following order:

History of proceedings

1. [3]

   The Council commenced these proceedings by summons filed on 23 December 2015 when the first defendant, Mr Gary William Goodman, was alive. The summons was served on Mr Goodman on 24 December 2015.

2. [4]

   Mr Goodman instructed a solicitor, Mr Michael Abboud, who entered an appearance for him. On 21 November 2017, Mr Abboud informed the solicitors for the Council that Mr Goodman had died earlier that day.

3. [5]

   On 28 November 2017, Mr Abboud advised the Council’s solicitors that he anticipated getting instructions from Ms Dianne Holden (Mr Goodman’s de facto partner) to apply to this Court for a grant of letters of administration, and suggested that, if that grant was made, Ms Holden would be the appropriate person to represent the estate.

4. [6]

   Mr Abboud, on behalf of Ms Holden, filed a notice of intended application for letters of administration on 9 March 2018. That application has not to date been pursued.

5. [7]

   On 17 April 2018, Mr Abboud signed short minutes of order on behalf of Mr Goodman and other defendants on the instructions of Ms Holden.

6. [8]

   On 18 April 2018, a Registrar of the Court made the following order by consent: “1. Pursuant to rule 6.30(1) of the Uniform Civil Procedure Rules, leave be granted to continue the proceedings as against the first defendant.”

7. [9]

   The Registrar also made an order granting leave to the Council “…to file a statement of claim as against the Estate of the late Gary William Goodman, being the first Defendant in these proceedings…”

8. [10]

   The short minutes of order to which relevant parties had consented also contained an order granting leave to the Council “…to file an amended summons and amended statement of claim within 14 days after an application for Probate in relation to the estate of the late Gary William Goodman is made so as to name the Administrator of the estate of the late first defendant.”

9. [11]

   The Council filed a statement of claim on 2 May 2018 against the estate of the late Gary William Goodman and 17 others.

10. [12]

    As Mr Goodman died intestate, and no person has yet been granted administration in respect of his estate, there is no person who has authority to represent the estate in these proceedings.

11. [13]

    The position in this State is different to that in Victoria, where rules 9.08(1) and (2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Victorian Supreme Court Rules) provide as follows:

12. [14]

    In this State, the legislation goes no further than what is provided for in rule 6.30 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that proceedings do not abate as a result of a party’s death if a cause of action in the proceedings survives.

13. [15]

    Although the statement of claim has been filed, no amended statement of claim has been filed naming any administrator of the estate of Mr Goodman as a substitute first defendant, because no grant of letters of administration has been made.

14. [16]

    Accordingly, no defence to the statement of claim has been filed on behalf of Mr Goodman’s estate.

15. [17]

    On 9 August 2018, Mr Abboud informed the solicitors for the Council that he had no instructions to apply for letters of administration, and that he was intending to file a notice of ceasing to act.

Bayside Council’s notice of motion

1. [18]

   On 9 November 2018, the Council moved on a notice of motion dated 26 October 2018 for default judgment for damages against the estate of Mr Goodman, and other defendants, on the basis that no defences had been filed by the parties in the proceedings against whom default judgment was sought. Ms Holden was joined as a respondent to this notice of motion as the next of kin of Mr Goodman.

2. [19]

   On 9 November 2018, at the hearing before Registrar Walton, the Council sought an order pursuant to UCPR r 7.10(2)(a) that the proceedings continue in the absence of a representative of the estate of Mr Goodman.

3. [20]

   The Registrar referred the matter to me to deal with the application under r 7.10(2)(a).

4. [21]

   During the hearing, questions arose about the utility of the Court making the orders sought, if it had the result that there would be no person who represented Mr Goodman’s estate in the proceedings, and consequently no judgment could be entered by the Court following any hearing that took place, whether summary or otherwise.

5. [22]

   The Council asked for the application to be adjourned, in order for it to explore whether an effective alternative could be found to the difficulty raised by the death of Mr Goodman, and the absence of any appointment of an administrator for his estate.

Subsequent steps taken by Bayside Council

1. [23]

   I am satisfied by the evidence that has subsequently been filed by the Council that it has done everything reasonably available to it to encourage potentially interested parties to seek a grant of letters of administration in respect of Mr Goodman’s estate.

2. [24]

   On or about 21 December 2018, the Council served notices to apply for administration on Ms Holden, two other persons who were understood to have had long-term relationships with Mr Goodman, and Mr Goodman’s daughter, advising that, if they did not apply within 28 days for a grant of administration in respect of the estate of Mr Goodman, the Court may grant administration of the estate to the NSW Trustee & Guardian (NSW Trustee). The notice did not prompt any of the recipients to apply for a grant of letters of administration.

3. [25]

   On 16 January 2019, the solicitors for the Council wrote a letter to the NSW Trustee to invite it to apply for a grant of letters of administration, as it is entitled to do under s 23 of the NSW Trustee and Guardian Act 2009 (NSW) (the NSW Trustee Act), for the purpose of permitting the NSW Trustee to act as a defendant in the proceedings on behalf of Mr Goodman’s estate, and then to administer the estate, including, in-so-far as that may be necessary, for the implementation of any orders made by the Court.

4. [26]

   The NSW Trustee was advised that, if it declined the invitation, the Council would make the present application for an order under r 7.10(2)(a) of the UCPR.

5. [27]

   On 24 January 2019, the NSW Trustee, exercising its right under s 13(1) of the NSW Trustee Act, declined to apply for letters of administration of the estate of Mr Goodman, largely because of uncertainty concerning the availability of assets and doubt as to whether the commission, fees and charges to which it would be entitled would be recoverable from what may be an insolvent estate.

6. [28]

   Consequently, in accordance with leave granted by the Court, the Council has revived its application by providing the Court with an amended notice of motion adding the order set out in par 2 above, by filing a further affidavit of a solicitor for the Council affirmed on 6 February 2019, and by delivering to my Associate written submissions prepared by its counsel dated 7 March 2019. Although, as I have noted above, Ms Holden is named as a respondent to the original notice of motion, my understanding is that she was not served with the amended notice of motion. In any event, Ms Holden has not taken part in the hearing of the notice of motion as amended.

Background

1. [29]

   These proceedings are of some public significance. Mr Goodman had been employed by the Council, by its former name, from 22 September 1994. The last position held by him was Chief Financial Officer. In that role, Mr Goodman had direct control and ultimate responsibility for the financial management of the Council.

2. [30]

   From about February 2015, the Independent Commission Against Corruption (ICAC) commenced an investigation into allegations that Mr Goodman had misused the Council’s funds. Consequently, the Council commenced its own internal investigation. It made discoveries that have caused it to allege that millions of dollars have been misappropriated and diverted from it through the conduct of Mr Goodman and other employees and contractors.

3. [31]

   By its statement of claim, the Council alleges that the total amount of money misappropriated or caused to be misappropriated by Mr Goodman acting alone was $3,452,998.98. It also alleges that Mr Goodman was involved in the misappropriation by others of further sums totalling $4,841,286.04, as part of conspiracies with the other defendants in the proceedings.

4. [32]

   The Council’s statement of claim is a complex document of 454 paragraphs, plus lengthy schedules setting out the particulars of a substantial number of transactions. The Council makes claims against Mr Goodman alone, claims against Mr Goodman and other defendants in respect of their joint conduct, and claims solely against other defendants. The obligations allegedly owed by Mr Goodman are pleaded in pars 24 to 28. The obligations are alleged to have arisen out of Mr Goodman’s employment contract, and also out of his fiduciary position as a senior employee of the Council. Possibly the most common form of relief claimed by the Council in relation to particular transactions is that Mr Goodman holds some receipt, or a traceable substitute of the receipt, as a constructive trustee for the Council, and that Mr Goodman is liable to the Council for equitable compensation, or for an account of profits, or to pay damages. In cases where it is alleged that Mr Goodman acted in concert with another defendant, similar relief is sought against the other defendant. There are, however, other occasions where the Council seeks different forms of relief; sometimes damages alone, and there are also occasions where the Council seeks damages for conspiracy.

5. [33]

   This is an incomplete summary of the causes of action and relief pursued by the Counsel in its statement of claim. It is sufficient for present purposes to note that the Council seeks common law and equitable remedies against Mr Goodman, either alone or jointly with other defendants. The ultimate decision of the Court on the Council’s claims against the other defendants will not decide all issues relevant to the Council’s claims against Mr Goodman. Put simply, the ability of the Council to obtain all of the relief to which it may have been entitled against Mr Goodman during his lifetime depends upon the Council being able to continue the proceedings in a manner that will bind Mr Goodman’s estate, and for that purpose to be granted the array of relief that it seeks personally against Mr Goodman’s estate by the present statement of claim.

6. [34]

   The Court is not, at this stage, privy to the evidence available to the Council to prove its claims against Mr Goodman and the other defendants, but it appears that it may have good prospects of succeeding, at least in respect of Mr Goodman’s conduct. Mr Goodman made admissions during the ICAC proceedings. The Council submitted that the Court may have regard to the admissions for the purpose of assessing the strength of its case, notwithstanding that, by virtue of s 37 of the Independent Commission Against Corruption Act 1988 (NSW), the admissions are not admissible in evidence in the present proceedings, if objection is taken. It is not necessary for the Court to determine that question, as the strength of a plaintiff’s case is not determinative of whether or not an order should be made under UCPR r 7.10(2)(a), as has been sought.

7. [35]

   It is self-evident that it is in the proper interests of the Council, and the administration of justice generally, that the Council be able to pursue its present claim against all defendants in these proceedings in an efficient manner. That is made clear by the Guiding Principles in Division 1 of Part 6 of the Civil Procedure Act 2005 (NSW). As I understand it, the proceedings are continuing, and on 14 March 2019 Registrar Walton made consent case management orders as between the Council and active defendants, and fixed a further directions hearing for 26 August 2019. However, the entitlement of the Council to proceed against Mr Goodman’s estate remains unresolved. Unless a satisfactory resolution can be found, it will be inevitable that the efficient conduct of this complex proceeding will be impeded in some serious way.

8. [36]

   It appears from observations made in the NSW Trustee’s letter that there is doubt about the assets available in the estate of Mr Goodman to meet any judgment entered against him, as well as any costs, including the costs of any person who might be appointed to represent the estate.

9. [37]

   Consequently, it is important that the barrier to the Council proceeding with the prosecution of its claim be removed in the most efficient way possible, if that can properly be done in accordance with the applicable rules, so that the proceedings can be resolved in accordance with law, and without the Council being required to incur excessive costs.

Nature of the problem

1. [38]

   It will be necessary to consider the precise nature of the problem caused by the death of Mr Goodman after the commencement of these proceedings.

2. [39]

   At common law, the death of a party had the effect of abating the proceedings. The matter is now governed by UCPR r 6.30, which relevantly provides:

3. [40]

   It is relevant to note that, under sub-rule (2), the Court has power to make such orders as it thinks fit for the joinder, removal or re-arrangement of the parties. Where a party dies, that party’s interest in his or her property, including the defence of proceedings to which the party is a defendant, will pass to some other person. That would usually be an executor or administrator of the party’s estate. The rule has the effect that the proceedings as a whole do not abate, and in the ordinary course it would be expected that the Court would make an order substituting for the deceased party the other persons to whom that party’s interest or liability had passed. The Court can make that order if it thinks fit, and the making of the order will not depend upon the consent of the other persons.

4. [41]

   UCPR r 6.30 is a successor to equivalent rules made under the Judicature Acts in England. Order XVII r 1 of the Rules of the Supreme Court, 1883 was in equivalent terms to UCPR r 6.30(1), and Order XVII rr 2 to 5 had the same general effect as UCPR r 6.30(2), although they were expressed in slightly more complex terms.

5. [42]

   The effect of the Judicature Act rules was explained in the English Court of Appeal by Cotton LJ (with whom Bowen and Fry LLJ effectively agreed) in In re Shephard; Atkins v Shephard (1889) 43 Ch D 131 (In Re Shephard) at 136 in the following terms:

6. [43]

   Then, in Duke v Davis [1893] 2 QB 260 at 263, Bowen LJ, with whom Kay LJ agreed, said:

7. [44]

   A similar statement of principle is found in the judgment of Romer LJ, giving the judgment of the Court of Appeal, consisting of A L Smith, Collins LJJ and his Lordship, in Ellis v Wadeson [1899] 1 QB 714 at 718:

8. [45]

   The effect of these authorities is that UCPR r 6.30 prevents the proceedings from abating when a defendant dies, but it does not necessarily mean that the proceedings can be continued in a way that binds the deceased or the deceased’s estate. The continuation of the proceedings will only bind the estate after a relevant representative of the estate has been joined to the proceedings.

9. [46]

   It may be noticed that, in In re Shephard, Cotton LJ spoke in terms of the need for the claim to be pursued against the deceased’s heir or devisee. This observation directs attention to the principles that applied in England at the time to the devolution of the deceased’s estate upon death.

10. [47]

    A brief description of the principles may be found in G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2017, LexisNexis Butterworths) at [11.68] as follows:

11. [48]

    It is not necessary for present purposes to delve into the position that applied where a person died intestate, and it is sufficient to note that, in various ways, the deceased’s property devolved automatically upon particular classes of persons. The consequence was, in terms of Cotton LJ’s reference to heirs and devisees, that, where proceedings did not abate by reason of the death of a party, the proceedings could not be continued in a way that bound the estate of that party, but alternative parties could immediately be identified as parties to whom the deceased’s interest or liability had passed. Where the deceased was a defendant, the plaintiff could move the Court for an order for the substitution of the heir or devisee for the deceased defendant, and the proceedings could continue. The effectiveness of this process depended upon the fact that there was no practical hiatus in the entitlement to the deceased’s interests and liabilities. There was a problem because those interests and liabilities might devolve on different persons.

12. [49]

    As Dal Pont and Mackie say, at [11.69]: “This inconvenience, coupled with the administrative fusion of law and equity in the one court, triggered the need for statutory intervention…” It is sufficient to note that it is now provided by statute that the real and personal property of the deceased passes at the date of the grant of probate or administration to the executor or administrator as the case may be: see, in this State, s 44(1) of the Probate and Administration Act 1898 (NSW) (Probate Act). The reform that is relevant for present purposes was described by Dal Pont and Mackie as follows, at [11.71] (citation omitted): “As a ‘temporary expedient’ that prevents a lacuna in the chain of title…the probate statutes…provide for vesting of a deceased person’s real and personal property in the Public Trustee or equivalent…until representation is granted…” In this State, s 61 of the Probate Act provides as follows:

13. [50]

    There is a similar provision in England that applies where the deceased dies wholly intestate, or where the deceased leaves a will but at the date of death there is no executor with power to obtain probate, or at any time before probate is granted there ceases to be an executor with power to obtain probate. In such cases, the real and personal estate of the deceased vests in the Public Trustee until a grant of administration is taken out: see s 9 Administration of Estates Act 1925 (UK). As to the effect of this provision, it is said in John Ross Martyn and Nicholas Caddick QC, Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (20th ed Williams and 8th ed Mortimer, 2013, Sweet & Maxwell) at [5-17], without any explanation:

14. [51]

    If that were true, it would appear to follow that, after the death of a party to litigation, the Public Trustee could be substituted for that party, in order to prosecute or defend the deceased party’s claim, at least until a grant of probate or administration was made in favour of some other person, at which time that person could be substituted for the Public Trustee. Relevantly, the problem that the Council now faces would have a solution. The Council would cure its procedural problem by seeking an order that the NSW Trustee be substituted as first defendant for Mr Goodman.

15. [52]

    The problem is that, on the balance of authority, which I must follow, s 61 of the Probate Act has not in this State been held to have the effect that the learned editors of Williams, Mortimer and Sunnucks presumed. This matter is dealt with by Dal Pont and Mackie at [11.73] to [11.75]. Decisions of Street CJ in Ex parte the Public Trustee (1951) 51 SR (NSW) 345 at 348-9; AH Simpson CJ in Eq in Re Broughton (1902) 19 WN (NSW) 69 at 70; and Roper J in Foy v Public Trustee (1942) 42 SR (NSW) 209 have the effect that, during the period when the estate of the deceased is vested in the NSW Trustee, the NSW Trustee does not have the power or responsibility to pursue or defend proceedings for or against the estate of the deceased. Street CJ described the function of the now NSW Trustee as being “…a mere formal repository of the legal estate…[which] has no functions, no powers and no duties in respect of the estate…and cannot be made a party to litigious proceedings…” (at 350).

16. [53]

    There has been some relaxation of the strictness of this interpretation. For example, in Andrews v Hogan (1952) 86 CLR 223; [1952] HCA 37, the High Court held that a notice to quit could be properly served on the Public Trustee, where the subject property was a lease estate that was part of the estate of a deceased’s lessee, and although the deceased had left a will appointing her sons as executors, they had not obtained a grant of probate. The members of the High Court did not disturb the authority of the cases mentioned above, although Fullagar J made the following more extensive observations on the effect of s 61 of the Probate Act, at 250-251:

17. [54]

    Fullagar J held, at 251 to 252, that the Public Trustee, now the NSW Trustee, was legally capable of surrendering a lease vested in him.

18. [55]

    It may be noted here that, in GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973, Davies J held that, in proceedings by a mortgagee for possession of land mortgaged by a deceased mortgagor, the NSW Trustee could be joined for the purpose of permitting the Court to issue a writ of possession in respect of the property. I will consider this decision more fully below. Given the relief sought by the Council against Mr Goodman’s estate in this matter, the decision of Davies J will not avail the Council.

19. [56]

    Although it may be that s 61 of the Probate Act gives the NSW Trustee more power than has been assumed, on the present state of the authorities the Council cannot resolve the impasse that it presently faces in its claim against Mr Goodman’s estate by adopting the expedient of seeking to join the NSW Trustee as a replacement defendant. It has not sought to take that course.

Appointment of an administrator ad litem

1. [57]

   This Court has power under s 40 of the Probate Act to appoint an administrator for the estate of Mr Goodman, including for the purpose only of defending the claim made by the Council: see for example Greenway v McKay (1911) 12 CLR 310; [1911] HCA 25, and In the Estate of Coe [2013] NSWSC 968 (In the Estate of Coe) per Young AJ at [7].

2. [58]

   In In the Estate of Coe, Young AJ accepted the authority of Re Simpson [1936] P 40, in which Langton J made orders on two applications made by parties who intended to commence proceedings as plaintiffs in respect of motor vehicle accidents in which they had been injured, and where the proposed defendant had died, appointing persons nominated by the proposed plaintiffs as administrators of the deceased persons’ estates for the purpose of the proceedings. The report indicates that, in one of the cases, a named chartered accountant, whose consent to act had been filed, was the person appointed as administrator ad litem.

3. [59]

   Young AJ set out the following principles concerning the appointment of an administrator ad litem:

4. [60]

   It seems that the persons who might have a proper claim to be appointed as administrators of Mr Goodman’s intestate estate, being primarily Ms Holden or his daughter, are not interested in applying for a grant of administration. That may obviate the concern expressed by Young AJ about appointing an independent administrator.

5. [61]

   The practical difficulty that the Council faces, in trying to resolve the problem caused by the death of Mr Goodman, by taking steps to have an administrator ad litem appointed, arises out of the need to identify an appropriate person who will consent to be appointed, and who is sufficiently independent of the Council to be able to satisfy the Court that he or she is fit to be appointed. Although, once appointed as administrator, the appointee will have the power to raise funds from Mr Goodman’s estate in order to fund the defence, there is a practical difficulty in ensuring that the expenditure of funds on the defence is proportionate to the estate’s prospects of succeeding in defeating the Council’s claim. I will return to a consideration of these practical matters below.

Proceeding under UCPR r 7.10

1. [62]

   In the light of these considerations, the Council now seeks to proceed under UCPR r 7.10, which provides as follows:

2. [63]

   Specifically, the Council seeks an order under sub-rule (2)(a) that the proceedings continue in the absence of a representative of Mr Goodman’s estate, rather than the alternative order under sub-rule (2)(b) that a representative of Mr Goodman’s estate be appointed for the purposes of the proceedings. The question is whether the order preferred by the Council can and should be made, and the consideration of this question calls also for a consideration of the significance of the availability of the alternative order for the appointment of a representative.

3. [64]

   There are differences between the appointment of an administrator ad litem and a representative of the estate under UCPR r 7.10(2)(b). In Hewitt v Gardner [2009] NSWSC 705, Ward J (as her Honour then was), made the following observations concerning the effect of this rule:

4. [65]

   The alternative of appointing a representative of Mr Goodman’s estate is a less formal procedure that would achieve a comparable outcome to the Council going through the formal process of securing a grant of administration ad litem to an appropriate person. However, there would be practical differences in following the less formal but more convenient course. As the representative will not have the benefit of a grant of administration, the representative will not have power to deal with Mr Goodman’s estate. The representative might be entitled to be indemnified from Mr Goodman’s estate for his or her costs of representing the estate as a substitute defendant for Mr Goodman: see Richie’s Uniform Civil Procedure NSW at [42.1.80] and, for example, Lewis v Nortex Pty Ltd (in liq) [2006] NSWSC 480 at [46], [47]. There would be other practical considerations involved in the Council finding a suitable representative to be appointed, who would consent to the application as required by UCPR r 7.10(2)(b). An independent representative would likely demand to be remunerated, and there may be a question about the representative’s liability for costs if the defence fails. The Council could indemnify the representative: see Lean v Alston [1947] 1 KB 467, where the English Court of Appeal upheld the appointment of a representative under the equivalent rule to UCPR r 7.10 knowing (at 475) that the representative would be indemnified by the party who sought the appointment. While this course may be available, it will not be attractive to the Council, as, in practical terms, it would involve the Council funding the defence of its own claim against Mr Goodman’s estate, in circumstances that could facilitate the depletion of the assets in the estate available to meet the claim if it is successful.

5. [66]

   Hence, it is understandable that the preferred outcome for the Council is an order that the proceedings continue in the absence of a representative of Mr Goodman’s estate.

6. [67]

   If UCPR r 7.10 is considered purely in terms of the words in which it is expressed, the Court appears to have a choice as to whether to make an order that the proceedings continue in the absence of a representative of the estate, or whether to appoint a representative. Indeed, the alternative of permitting the proceedings to continue in the absence of a representative is presented first in the rule, which ordinarily would suggest that it is at least as acceptable as the alternative that is presented second.

7. [68]

   However, it is necessary to determine how the rule is required to be applied, having regard to fundamental conceptions of what is involved in common law actions against defendants for in personam remedies, and also how the circumstances in which the rule was introduced, and how it has been applied historically, have influenced the meaning of the wording in which the rule is expressed.

Must the Court’s judgment be entered against a person?

1. [69]

   In accordance with its duty as a party making an ex parte application, the Council brought to the Court’s attention a number of authorities that appear to stand in the way of the Court being authorised to make an order that these proceedings continue in the absence of a representative of Mr Goodman’s estate

2. [70]

   It is appropriate to begin by considering the authorities that have held that the Court can only enter judgment or make an order against a living party.

Colquhoun v Graffione

1. [71]

   In Colquhoun v Graffione (2000) 97 FCR 376; [2000] FCA 325 (Colquhoun), Katz J had before him an application to set aside a bankruptcy notice. Before the application came on for hearing, the applicant died. The creditor submitted that the Court should make an order that his costs should be paid out of the estate of the debtor. The question was whether the Court could make the costs order given the death of the applicant. The creditor was required to provide submissions to justify the Court’s power to make the order against the estate of the applicant. One of the creditor’s submissions relied upon the equivalent rule in the rules of the Federal Court of Australia to UCPR r 7.10.

2. [72]

   Katz J stated at [27], in response to this submission: “…that I do not understand [the rule] as purporting to authorise this Court to pronounce any judgment or make any order otherwise than against an identified person or persons. The sub-rule’s effect, as I understand it, is instead that when such a judgment is pronounced or such an order is made, then that judgment or order will be taken to create an estoppel against a particular deceased person’s estate as well, provided an antecedent order has been made under [the equivalent to UCPR r 7.10]…” His Honour did not give reasons for that conclusion, and did not consider the authorities that bear upon the application of the rule.

3. [73]

   His Honour had earlier stated, at [25], concerning the order that he had been asked to make: “…The difficulty is that I do not know their identities and, without knowing that, I am unable to see how I can make such an order against them.” As I understand his Honour’s reasoning, in the face of being asked to make a costs order against the estate of the deceased applicant, where he did not know the names of the executors, he could not see how the Court could make the orders sought. Katz J did not purport to rule on the effect of UCPR r 7.10. However, he did rule that the Court could not make an order to the effect that the costs of the creditor would be paid by the estate of the applicant. His Honour could not make that order against the executors, because he could not name them.

Ivanovski v Perdacher

1. [74]

   Hammerschlag J, in Ivanovski v Perdacher [2009] NSWSC 913 (Ivanovski), stated at [49] that he tended to agree with the observation of Katz J in Colquhoun regarding the operation of UCPR r 7.10. This observation was strictly obiter, as the circumstances did not require his Honour to decide this question.

2. [75]

   The plaintiffs had sued the defendant, on 12 July 2006, claiming damages of about $2.9 million for the breach of a loan agreement. The defendant subsequently died. His wife, who was named as his executor in his Will, and who was the major beneficiary, did not seek a grant of probate. The plaintiffs applied for an order joining the wife in her capacity as a representative of the estate of the defendant, and in her own right as a second defendant. The wife objected to being appointed representative of the estate. The plaintiffs then changed course, and advised the wife that they would seek an order that the proceedings continue in the absence of a representative of the estate pursuant to UCPR r 7.10(2)(a). The wife did not appear, and, at an ex parte hearing, McDougall J made the order sought by the plaintiffs.

3. [76]

   The hearing of the proceedings took place before Hammerschlag J. The wife was represented, but not the estate of the original defendant. The only money judgment sought by the plaintiffs was against the original defendant. Hammerschlag J gave the plaintiffs an opportunity to provide submissions on the identity of the party against whom the money judgment would lie, given that the first defendant was deceased, so that judgment could not effectively be given against him.

4. [77]

   The plaintiffs then conceded that the no representative order might have been inappropriately made, and they applied for an order under UCPR r 7.10(2)(b) that the Court appoint a representative of the first defendant’s estate for the purposes of the proceedings. His Honour’s judgment was concerned with that application.

5. [78]

   Hammerschlag J made the following observations at [38]:

6. [79]

   At [39], Hammerschlag J declined to dismiss the claim against the first defendant, on the application of the second defendant wife. That was essentially because the wife had participated in the hearing and defended the claim, without taking the point that McDougall J’s order should be set aside. It was in this context that his Honour made the observation at [49] that he tended to agree that UCPR r 7.10 “…does not contemplate judgment otherwise than as against an identified person.”

7. [80]

   His Honour made an order appointing the plaintiffs’ nominee to represent the estate of the first defendant, subject to the nominee giving a proper consent. The proposed representative was a named solicitor. Hammerschlag J ordered that the title to the proceedings be amended, so that the first defendant was described by the name of the solicitor as representative of the estate of the deceased defendant. He discharged the order made by McDougall J. He also ordered the plaintiffs to provide the representative with the affidavits read at the trial, the transcript, all written submissions, admitted exhibits, as well as any further information the representative reasonably required. His Honour then stood the matter over.

8. [81]

   I infer that Hammerschlag J contemplated that the representative would have an opportunity to review the material relevant to the hearing, and make a judgment as to whether any steps should be taken to contest the making of the orders sought by the plaintiffs against the estate of the first defendant.

GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells

1. [82]

   In GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973 (GEL Custodians), Davies J, at [64], followed Colquhoun and Ivanovski, and held that the estate of a deceased person is not a legal person, and: “…No judgment can be given against such a defendant. It is necessary for there to be an identified person against whom a judgment is given particularly if it is a money judgment…”

2. [83]

   In GEL Custodians, Davies J was able to fashion a cure for the defect in the constitution of the proceedings caused by the death in question. The deceased was a mortgagor who died before the commencement of the suit. The plaintiff was the mortgagee. Although his Honour held that the plaintiff had impermissibly sued the estate of the deceased, the remedy sought by the plaintiff was for possession of the land the subject of the mortgage. His Honour considered the authorities concerning the effect of s 61 of the Probate Act in great detail at [18]-[62], and expressed the conclusion, at [63], that:

3. [84]

   The decisive authority relied upon by Davies J, at [56], which his Honour considered himself bound by, was Perpetual Trustee Co Ltd v The Public Trustee (1956) 73 WN (NSW) 546, which his Honour had discussed at [30]-[31]. That was a decision of the Full Court of this Court that appears to have decided that, if following the service of a notice to quit on the NSW Trustee, possession is not delivered to the lessor, the NSW Trustee “…may be made a respondent to the proceedings which must be taken by a lessor to recover possession of prescribed premises.” Davies J appears to have accepted, at [59], that the view he preferred did not apply to claims for damages against the estate of the deceased defendant. His Honour observed, at [60], that the authorities that he regarded as having supported the proposition that the NSW Trustee could be joined as a defendant involved claims in rem to recover the possession of land.

4. [85]

   It is not necessary for this Court to offer an opinion as to the correctness of the conclusion reached by Davies J concerning the joinder of the NSW Trustee in claims for the possession of land. The claims made by the Council in the present case are largely in personam, so the reasoning of his Honour to the effect that any order made in favour of the Council must be made against a named person would not support the making of the order now sought.

Bendigo and Adelaide Bank Ltd v The Estate of McLean

1. [86]

   The Council relied upon the decision of Derham AsJ in Bendigo and Adelaide Bank Ltd v The Estate of McLean [2018] VSC 215, to support its argument that this Court has authority under UCPR rule 7.10 to make an order that its claim against Mr Goodman may proceed without a representative for his estate being appointed.

2. [87]

   The plaintiff in that case was a mortgagee, who commenced proceedings against a deceased mortgagor claiming, among other relief, an order for possession of the property the subject of the mortgage. The plaintiff named the estate as the defendant to the proceeding, as was specifically permitted by rule 9.08 of the Victorian Supreme Court Rules (see par 13 above). The plaintiff sought an order (in effect, under the equivalent of UCPR rule 7.10) for leave to proceed against the estate of the mortgagor in the absence of a person to represent the estate.

3. [88]

   Alternatively, the plaintiff sought an order that the children of the deceased, and State Trustees Ltd, which is apparently the Victorian equivalent of the NSW Trustee, be appointed to represent the estate, subject to their consent. One of the children expressly refused her consent to being appointed to represent the estate, and the other child did not respond to correspondence seeking his consent. State Trustees Ltd advised that it would not appear at the hearing, and was not authorised to act on behalf of the estate. There was evidence that the deceased mortgagor’s executor had advised that she did not intend to apply for probate or a grant of letters of administration.

4. [89]

   Derham AsJ noted, at [23], that the plaintiff sought an order for the possession of the mortgaged property in rem so that it could sell the property as mortgagee and recover the outstanding monies owing to it. His Honour then, at [24], expressed agreement with the submission of the plaintiff that the taking of further steps by the plaintiff depended upon whether a person may be appointed to represent the estate, and: “…If no person can be appointed to represent the Estate (because that person cannot be identified and their consent obtained), the Court has the discretion to grant leave to the plaintiff to proceed against the Estate without a person appointed to represent the Estate under r 16.03(1)(a) of the Rules.”

5. [90]

   His Honour then set out what he described as practical guidance that had been given by the Court to plaintiffs in relation to how to proceed in these circumstances. His Honour said:

6. [91]

   It may be noted that, in par (c) of this practical guidance, Derham AsJ observed that this procedure applied “at least” to a “judgment in rem for possession”.

7. [92]

   His Honour referred to the fact that he had given this explanation in Australia and New Zealand Banking Group Ltd v Estate of Balding (2016) 51 VR 137; [2016] VSC 728. In that case, Derham AsJ said:

8. [93]

   Footnote 11 was a reference to the judgment of Davies J in GEL Custodians, and footnote 12 was a reference to Colquhoun, Ivanovski and GEL Custodians.

9. [94]

   Derham AsJ then, at [17]-[22], considered in detail the authorities, culminating in GEL Custodians, that have considered the extent to which (in this State) the operation of s 61 of the Probate Act may make the NSW Trustee a proper defendant in respect of property vested in it.

10. [95]

    His Honour then noted, at [23], that: “In Victoria, the position is affected, and significantly so, by the express operation of rr 9.08 and 16.03 of the Rules…”

11. [96]

    Derham AsJ then set out r 9.08 of the Victorian Supreme Court Rules in full, and at [25] observed as follows: “The intent of r 9.08 of the Rules is, in my view, that ordinarily after the commencement of proceedings against the estate of the deceased person in accordance with r 9.08(1), the taking of further steps in the proceeding depends on the appointment of a person under r 9.8(5)(a)(i) [being a person appointed to represent the estate], if there has been no grant of representation as mentioned in r 9.08(5)(a)(ii) [which refers to a formal grant of representation by probate or letters of administration, in which case the personal representative of the deceased may be made a party to the proceedings]…”

12. [97]

    His Honour considered the possibility of the formal appointment of an administrator ad litem, or the statutory equivalent under what in this State is UCPR r 7.10(2)(b), and, at [30], referred to the observation of Sloss J in Talacko v Talacko (2015) 305 FLR 353, 405 at [165] that: “There is a dearth of authority on [the equivalent of UCPR r 7.10(2)(b)]…”

13. [98]

    Derham AsJ concluded this aspect of his judgment by saying (footnotes omitted):

14. [99]

    Until the last paragraph extracted above, Derham AsJ was considering the circumstances in which the Court could appoint a person to represent the estate of the deceased defendant under the equivalent of UCPR r 7.10(2)(b). His Honour then concluded that if, following the giving of notice to “…the persons who, as far as the plaintiff knows, are interested in the estate of the deceased…”, no person is appointed to represent the estate, because the appointment cannot be made without the consent of the person, then “…the Court may proceed as contemplated by [the equivalent of UCPR r 7.10(2)(a)]…” However, that conclusion was qualified by the expression “…so that, at least, a judgment in rem for possession may be obtained against the estate…”

15. [100]

    It is this conclusion that provides the starting point for Derham AsJ’s practical guidance at [27] of Bendigo and Adelaide Bank Ltd v The Estate of McLean [2018] VSC 215 that is extracted above.

16. [101]

    In that case, his Honour concluded, at [33] and [36], that, as there was no person known to the plaintiff willing and able to represent the estate for the purposes of the proceeding, the Court ought to exercise its discretion to grant leave to the plaintiff to proceed without a representative of the estate being appointed, to enable the plaintiff to obtain a judgment in rem for possession against the property of the estate the subject of the mortgage.

17. [102]

    If the procedure suggested by Derham AsJ is accepted as being the proper one to govern the circumstances in which the Court should make an order that the proceedings continue in the absence of a representative of the defendant, then it would provide a way for the Council in this case to move forward, but for the qualification concerning the application being for the making of a judgment in rem against some property. The Council’s claim is for a money judgment in this case, as well as declarations that property is held on trust and orders for conducting a tracing exercise. His Honour did not explain why his conclusion only applied to a judgment in rem against property. His Honour’s use of the expression “at least” necessarily creates certain ambiguities.

18. [103]

    It may be that the explanation for the willingness of Derham AsJ to entertain the making of an order that the matter proceed in the absence of a representative of the defendant, where an order for possession of property is sought, is that the manner in which the Court’s order works is that an official of the Court is ordered to take possession of the property, and to give it to the plaintiff, without the defendant being required to do anything. If that is the correct explanation, it would tie the willingness of the Court to permit the proceedings to continue without the defendant being represented to the mechanics of how the order ultimately made by the Court would be implemented. The desideratum would not, in the case before the Court, be the Court’s satisfaction that procedural fairness would be given to the estate of the deceased, in the sense that there would be a proper and proportionate defence of the claim. Rather, it will be whether, if the plaintiff succeeds, the Court will be able not to make an order against the defendant personally, but rather to make some other order that provides an effective remedy to the plaintiff.

19. [104]

    There are other cases in which the preparedness of the Court to make an order that the proceedings continue in the absence of a representative of the defendant appears to have been influenced by the existence of a power in the Court to implement its final judgment without making an order against the deceased personally: see Vukic v Grbin [2006] NSWSC 41 at [47] and Hewitt v Gardner [2009] NSWSC 705, in the context of the power under s 15(1)(a)(v) of the former Family Provision Act 1982 (NSW) (Family Provision Act) for the Court to make a vesting order. I will consider these decisions further below.

20. [105]

    In Manchester Corporation v Connolly [1970] Ch 420, Lord Diplock gave the following explanation of a writ of possession at 428-429:

21. [106]

    It is now common for the Court to make an amalgam of common law and equitable orders, in cases where mortgagees seek to enforce the mortgage. The following example of orders is taken purely at random from Baker-Crooks v Separovich [2017] NSWSC 708; (2017) 18 BPR 36,975:

22. [107]

    Orders 1 to 3 are equitable orders made personally against the defendant, and it appears that only orders 4 and 5, or perhaps only order 5, could be made in proceedings in which a plaintiff mortgagee was given leave to continue the proceedings in the absence of a representative of the defendant, if the Court is limited to making an in rem order against the property at the conclusion of the proceedings.

23. [108]

    Bendigo and Adelaide Bank Ltd v The Estate of McLean [2018] VSC 215 (Bendigo and Adelaide Bank Ltd v The Estate of McLean) is an example of a case in which an order was made that proceedings continue in the absence of a representative of the deceased estate. Derham AsJ did not require that State Trustees Ltd be appointed as a nominal defendant. His Honour only made the order once it was proved that the persons with a real interest in the deceased’s estate would not consent to being appointed as its representative. However, his Honour accepted the authorities that have held that there must be a representative, when orders in personam are to be made against a deceased’s estate. He only took the course that he did because the relief sought was in rem, which meant that it was not necessary for the Court actually to make an order against the estate. Although Derham AsJ did not conclusively suggest that this procedure was only available when the relief sought was in rem, his decision does not provide any positive support for the appropriateness of the course taken by him being available when the relief sought is in personam.

UCPR r 29.12

1. [109]

   In considering whether or not orders can be made against a deceased person, or a deceased person’s estate, before a grant of probate or administration, it is pertinent to consider UCPR r 29.12, which provides as follows:

2. [110]

   Sydney Edward Williams and Frank Guthrie-Smith, Daniell’s Chancery Practice (8th ed, 1914, Stevens and Sons Ltd), Vol 1 (Daniell’s) gives the following explanation of the practice of the Court of Chancery that is the evident source of r 29.12, at 706 (citations omitted):

3. [111]

   The learned editors of Richie’s Uniform Civil Procedure NSW state, in respect of this rule, at [29.12.5]: “Before an order is made under r 29.12(1) it will be usual for there to be some material to show that the successor or representative of the deceased party has been notified of the application for the entry of judgment.”

4. [112]

   There is no suggestion that the judgment cannot be given and entered by the Court until a grant of probate or administration is made in favour of the party’s estate. There is no suggestion that judgment cannot be given and entered against a defendant who has died. This rule must be an exception to any proposition that the Court can only enter judgment or make an order against a live defendant. A judgment or order made against a defendant who then dies is effective. It is not clear why a judgment or order made against a defendant in the defendant’s name, after the defendant’s death, is not effective as a judgment or order of the Court. There may be issues about how the judgment or order is to be implemented, which may depend upon whether the Court’s processes for enforcing the judgment or order are available. In some cases, the implementation of the judgment or order may require a formal grant of representation. However, the judgment or order will still be a judgment or order of the Court.

5. [113]

   The evident intent of the rule is that, once the party has been able to contest the proceedings to the point at which the verdict has been pronounced, or all findings of fact have been made, the subsequent death of the party is not a sufficient reason to prevent the Court from giving and entering judgment.

6. [114]

   For present purposes, the significance of the existence of this rule is that it disproves the generality of the line of authority that commenced with Colquhoun. The rule may be anomalous, but it appears to permit the Court to enter judgment against the name of a deceased defendant, if the conditions for the application of the rule are satisfied.

Civil Procedure Rules r 19.8 (UK)

1. [115]

   It may be of some interest that r 19.8 of the Civil Procedure Rules (UK) (CPR) is a near equivalent of UCPR r 7.10. It is in the following terms:

2. [116]

   This rule differs from the rule in this Court in some respects. Rule 7.10 applies “to any proceedings”, and appears to be functionally equivalent to Civil Procedure Rules (UK) (CPR) r 19.8(1), which applies where “a person who had an interest in a claim has died”. The reference to “a claim” appears to be to a proceeding that is on foot: see Millburn-Snell v Evans [2012] 1 WLR 41 (Millburn-Snell v Evans) per Rimer LJ at [22]. The Court was looking only to the literal wording, given the same choice of either ordering that the claim proceed in the absence of a person representing the estate of the deceased, or that a person be appointed to represent the estate of the deceased, as this Court is given by UCPR r 7.10(2). Rule 19.8(2) applies to the case where “a defendant against whom a claim could have been brought has died”. The sub-rule therefore applies to claims that have not been commenced before the death of the defendant. In such a case, the plaintiff only has one course, being to apply to the Court for an order appointing a person to represent the estate of the deceased in the claim. In Millburn-Snell v Evans the Court of Appeal decided that CPR r 19.8(1) could not be used to revive a case that was a nullity because it was commenced by persons entitled to a grant of administration of an intestate estate before the grant had been made. Consequently, there was no substitute for the plaintiff obtaining a grant of administration before commencing proceedings, and if that were not done the proceedings could not be saved by the appointment of a representative of the estate under r 19.8(1) at a later time.

3. [117]

   The effect of the predecessor to this rule was the subject of a decision by a strong Court of Appeal, constituted by Lord Diplock, Viscount Dilhorne and Lord Scarman in In re Amirteymour [1979] 1 WLR 63. That was RSC Ord 15, r 6A, which was the equivalent to CPR r 19.8(2). The equivalent of CPR r 19.8(1) was to be found in RSC Ord 15, r 15. Their Lordships were concerned with the validity of an order made in proceedings commenced against a defendant who had already died, and where an order had been obtained appointing the Official Solicitor (who had a statutory role in some respects similar to that of the NSW Trustee) to represent the deceased’s estate, but only for the purpose of accepting service of the originating summons. After the proceedings had commenced, and the initiating process was served on the Official Solicitor, the Official Solicitor took no further part in the proceedings, which continued in the absence of any representation of the deceased estate, to the point where orders were made against the estate. Lord Diplock, who delivered the judgment of the Court of Appeal, observed at 65-66 that: “…the action can only continue to be carried on as an action in personam against some person or persons authorised in law to represent the deceased’s estate who may either have been appointed by virtue of the section to do so in the particular action or may be executors or administrators of the deceased appointed in the ordinary course of administration of his estate…”

4. [118]

   At 66, his Lordship expressed the Court’s view that the proceedings were a nullity, and after repeating that the proceedings took the form of actions in personam, continued:

5. [119]

   In In re Amirteymour [1979] 1 WLR 63 (In re Amirteymour), the Court of Appeal held that the proceedings were a nullity, but only in the context where the plaintiff had not complied with a rule that expressly only permitted the proceedings to continue against the estate of a defendant who had already died where a named representative of the deceased’s estate had been appointed by the Court. The Court of Appeal was not concerned with a rule in the same terms as UCPR r 7.10(2).

Deveigne v Askar

1. [120]

   The Court of Appeal in this State in Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 (Deveigne v Askar) was primarily concerned with the issue of whether proceedings instituted by a plaintiff against and in the name of the deceased defendant were a nullity. McColl JA, with whom Hodgson and Giles JJA substantially agreed, in holding that the proceedings were a nullity, said:

2. [121]

   McColl JA also cited with approval the judgment of Arden LJ in Piggott v Aulton (dec’d) [2003] RTR 540, which was another decision of the English Court of Appeal on the effect of r 19.8(2) of the Civil Procedure Rules (UK), to the effect that, although in England proceedings could be commenced against the estate of the deceased defendant, they could not be prosecuted until a person had been appointed to represent the estate of the deceased. This decision therefore concerned the same rule that was the subject of the judgment in In re Amirteymour. It therefore does not concern a rule in the same terms as UCPR r 7.10(2). McColl JA set out an extract from her Ladyship’s judgment at [122] as follows:

3. [122]

   It may be accepted that the Court of Appeal in this State has authoritatively decided that proceedings commenced against a deceased defendant’s estate are a nullity. It may follow, in principle, that if a defendant dies after the commencement of proceedings, but the proceedings are continued without an order being made under UCPR r 7.10, the outcome will be a nullity. The Court of Appeal’s decision does not, however, determine how the Court should exercise its power under that rule.

History of UCPR rule 7.10 and its precursors

1. [123]

   It is necessary to look at the history of the rule and its precursors, and the authorities that have applied the rule, particularly in relation to the circumstances in which the courts have made orders that proceedings can continue in the absence of a representative of an interested party.

2. [124]

   As is observed in Daniell’s at 147, the difficulties caused by the strict application of the rule that all persons materially interested in the subject of proceedings should be made parties to the suit, induced the Court of Chancery to relax the rule. This is an important consideration, as it suggests that the rule should be applied from the perspective of the circumstances in which it is proper for the Court to allow proceedings to continue, where orders may ultimately be made that affect the interests of an absent party.

3. [125]

   One of the relaxations was enacted in s 44 of the Chancery Procedure Act, 15 & 16 Vic c 86 (UK). The terms of that section are similar to the wording of the current UCPR r 7.10 (save for the presently irrelevant absence of an equivalent to r 7.10(1)(b)). An equivalent provision was found in s 8 of the Equity Act 1880 (NSW), s 24 of the Equity Act 1901 (NSW) and in Part 8 Rule 16 of the Supreme Court Rules 1970 (NSW).

4. [126]

   Daniell’s makes the general observation, at 156, that “…now the Court may, if it thinks fit, in any cause, matter or other proceeding, appoint a person to represent the estate, or proceed in the absence of any such representative…” However, as appears from the elaboration of that proposition, the rule was subject to a number of restrictions. So far as is relevant to the present application, Daniell’s gives the following explanation at 157-158 (citations omitted):

5. [127]

   These observations form part of Chapter III Section II, dealing with persons having a concurrent interest with the plaintiff, but it is stated, at 183-184, in Section III, concerning persons resisting the plaintiff’s demands that, where a deceased defendant is not represented: “…the Court will, according to the principles previously discussed, exercise its power of dispensing with the legal personal representative, in which case the action may be brought or continued without such representative…”

6. [128]

   It is readily understandable why the Court will not appoint a representative, where the objective of the proceedings is to oblige an absent defendant to administer an estate, or where the duties to be enforced require positive action on the part of the party to be represented. It is not practicable to appoint a representative of the defendant where the objective of the suit is to obtain an order that requires the performance of duties that are personal to the defendant.

7. [129]

   However, in the parts of the extract that have been emphasised above, Daniell’s appears to suggest that the Court will not appoint a personal representative of the “whole adverse interest”. Although the meaning of this expression is not entirely clear, the proposition appears to be that the Court will not appoint a representative for an absent party where that party is the only party interested in a particular suit or claim. If that were the true way to apply UCPR r 7.10, then the Court could not appoint a representative of Mr Goodman’s estate in this matter.

8. [130]

   The primary authority cited in Daniell’s for this restriction on the power of the Court to appoint a representative for an absent defendant is the decision of Sir John Romilly MR in Gibson v Wills (1856) 21 Beav 620; (1856) 52 ER 999. The headnote to the report states the effect of the case in the manner accepted in Daniell’s. The point that required decision arose under a marriage settlement, between the children who survived their parents and those who died in their lifetime. All the surviving children were parties to the cause, but no representation had been taken out for the two deceased daughters. One of them had died unmarried, and the other had died leaving a husband surviving her. The whole of Sir John Romilly’s judgment is as follows:

9. [131]

   Looking at these reasons brings to mind the reality that the Court is presently trying to interpret the meaning of a clearly expressed rule of this Court, by squinting into the distant past to understand the practice of courts operating in the middle of the 19th century. The Master of the Rolls speaks to us in language that is perfectly clear, but with a meaning that we might not quite understand. Although his Lordship’s judgment has been taken to lay down a rule, it is really an expression of the general purpose of a statute expressed in clear terms, and an explanation of the reason for the exercise by his Lordship of the discretion reposed in him. That appears from the final paragraph, where his Lordship appears to have relented, and adopted a compromise that would permit the husband to represent his deceased wife, provided a representative was found for the other deceased daughter.

10. [132]

    Ward J (as her Honour then was) considered the effect of the rule in Hewitt v Gardner [2009] NSWSC 705, where one question was whether UCPR r 7.10 authorised the Court to appoint a representative for a deceased claimant, where the proceedings had already been commenced after the death of that person. Her Honour said:

11. [133]

    Ward J held, at [30], that her Honour was empowered by UCPR r 7.10 to appoint the plaintiff to represent the estate of the deceased to prosecute a claim in the name of the estate to set aside a transaction entered into by the deceased as a result of undue influence, notwithstanding that the proceedings had been commenced without the plaintiff having any grant that entitled her to act on behalf of the estate. The reason was that the proceedings were not a nullity, because the plaintiff was validly pursuing another claim, being for further family provision, which she had standing to bring. As the proceedings were not entirely a nullity, Ward J was not precluded from making the representative order for the reasons given in a line of authority that has culminated in the later decision of the English Court of Appeal, Millburn-Snell v Evans, that is referred to above. In the present case, it is not necessary for the Court to give any further consideration to the circumstances in which proceedings that have been commenced may be a nullity. In this case, Mr Goodman died after the commencement of the proceedings.

12. [134]

    I respectfully agree with the conclusion reached by her Honour, to the effect that an order may be made for the representation of the estate of the deceased person, even where the estate as represented is the only party interested in the particular claim. It is consistent with the orders made by Hammerschlag J in Ivanovski, where his Honour appointed a representative of the deceased first defendant, when the other defendant, his widow, had interests that were aligned with but not entirely consistent with those of the deceased.

13. [135]

    It is also consistent with the judgment of the English Court of Appeal in Lean v Alston [1947] 1 KB 467, which has been mentioned above. The plaintiff sued the owner of a motor vehicle claiming damages for personal injury. The driver of the vehicle was killed, and his widow refused to take out letters of administration. The defendant wished to serve a third party notice on the estate of the deceased driver for the purpose of obtaining an order for contribution. The defendant understood that the deceased driver was covered by an insurance policy. The question was whether the Court could appoint a representative of the deceased driver, even before the commencement of proceedings against that driver. Scott LJ, with whom Morton and Somervell LJJ agreed, held at 470-471, in accepting an argument put by counsel, that the then equivalent of UCPR r 7.10 was “…only one application of an inherent power of the court exercised by the Court of Chancery and expressed in s 44 of the Chancery Procedure Act, 1852, by which the Court of Chancery and its successor, the Chancery Division, always had the power to appoint a person to represent any particular interest in any proceeding where it thought right to make that appointment…”

14. [136]

    It follows that the Court may appoint a person to act as a representative for the estate of Mr Goodman in these proceedings. I appreciate that the Council has not sought an order for the appointment of a representative for the estate of Mr Goodman. However, in my respectful view, Hewitt v Gardner is of some significance to the present case, because it demonstrates that Ward J interpreted UCPR r 7.10 in a manner that arguably extended its practical effect, though having proper regard to the manner in which the rule and its antecedents have historically been applied. It is of further interest that, in her substantive judgment in the proceedings, Ward J found that the transaction challenged by the plaintiff on behalf of the deceased’s estate ought to be set aside on the ground that it was procured by undue influence: Hewitt v Gardner [2009] NSWSC 1107. Her Honour expressed the following conclusion as to the relief that should be ordered on that claim, at [177]:

15. [137]

    Thus, Ward J was able to fashion an order that had the effect that the transaction was set aside, and the defendant was ordered to transfer the subject property to the representative of the estate appointed under UCPR r 7.10, to be held by her on trust for the estate, and ultimately dealt with under whatever regime formally governed the deceased’s estate. This was done, notwithstanding that the appointment of the plaintiff as a representative was not equivalent to a grant of probate or administration. The approach adopted by her Honour demonstrates how UCPR r 7.10 may be used in a practical way to alleviate the consequences of the death of a party interested in a claim, or proceedings on a claim, where there has been no formal grant of representation.

Recent authorities on the application of UCPR r 7.10

1. [138]

   I will now address more recent cases in which orders have been made under UCPR r 7.10 that proceedings may continue in the absence of a representative of a deceased party.

Vukic v Grbin

1. [139]

   Brereton J (as his Honour then was) made such an order in Vukic v Grbin [2006] NSWSC 41 (Vukic v Grbin).

2. [140]

   The plaintiff had been granted administration pursuant to the Wills, Probate and Administration Act 1898 (NSW) s 41A, for the purpose of bringing an application under the Family Provision Act 1982 (NSW) (Family Provision Act). Except for that limited purpose, there had been no general grant of administration for the estate of the deceased, who was the plaintiff's father.

3. [141]

   The plaintiff made a claim that 75% of the value of a residential property in this State owned by the deceased was held by his estate on trust for her. The plaintiff also sought relief to the same effect by way of additional provision under the Family Provision Act. For reasons that need not be explained, the plaintiff preferred to receive her remedy under the Family Provision Act. Brereton J accepted that course.

4. [142]

   By order of this Court, all of the living persons who were beneficiaries under the deceased's will had been joined as defendants to the proceedings. None of the defendants filed an appearance, and the proceedings were heard in the absence of the defendants.

5. [143]

   Brereton J held, at [4], as follows:

6. [144]

   Having decided that the plaintiff was entitled to a family provision order that would give her ownership of the property, subject to the payment of a number of legacies, Brereton J was faced with the need to make orders that would be effective to implement his decision. Ordinarily, the personal representative of the deceased under a grant of probate or administration is made a defendant to the suit. If the Court makes an order that alters the will of the deceased, or the effect of the deceased’s intestacy, then the Court's order will be given effect when the personal representative either executes the varied will, or implements the Court's order in the case of intestacy. In the case before him, there was no personal representative. Consequently, his Honour said the following at [47]:

7. [145]

   Brereton J then made orders accordingly. His Honour's judgment is illustrative of a number of significant matters.

8. [146]

   The first is that, where the Court contemplates making an order that proceedings continue in the absence of a representative of a deceased defendant, the Court must attend to the issue of what orders will be available to implement the Court's decision. Where the decision can only be implemented by the Court making an order that imposes an obligation on a particular person, who has the power and authority to perform the order, permitting the proceedings to continue in the absence of a representative of the deceased may be ineffectual. Brereton J was able to obviate that problem in the case before him because of a statutory power in the Family Provision Act to make an order vesting property in the plaintiff, which is what his Honour did.

9. [147]

   The second matter illustrated by this case is that Brereton J was able to make an order under UCPR r 7.10(2)(a) because all of the persons who were interested in the estate of the deceased had been joined as parties and served with the summons issued by the Court. Consequently, all persons who were potentially affected by the orders sought by the plaintiff were in a position to contest the plaintiff's claim, even though the claim technically was made against the estate of the deceased and the estate was not represented.

10. [148]

    The case shows that the Court was not concerned to ensure that the persons interested in the estate actually contested the plaintiff's claim. It was sufficient for the Court that all of the interested persons had been made parties in a technical sense, and it was then a matter for them whether or not they actually contested the plaintiff's claim.

11. [149]

    Ward J (as her Honour then was) in Hewitt v Gardner [2009] NSWSC 705 adopted the same approach as had Brereton J, at [15]-[20] of her judgment.

Porters v Cessnock City Council

1. [150]

   In Porters v Cessnock City Council [2005] NSWSC 1275; (2005) 12 BPR 23,209 (Porters v Cessnock City Council), Campbell J (as his Honour then was) made the following observations concerning the Court’s practice in making an order that proceedings continue in the absence of a representative of the estate of the deceased party:

2. [151]

   Campbell J did not purport to state exhaustively the circumstances in which the Court would make an order that proceedings continue in the absence of a representative of a deceased estate, which had an interest in the subject matter of the proceedings. In the two English cases cited by his Honour, a mortgagee of a life insurance policy sued the insurer to recover the amount of the debt, without a legal personal representative of the deceased being joined as a party. In one case, the amount of the debt was greater than the value of the amount of cover under the policy, and the mortgagee sued for the whole of that amount. In the other, the cover was greater than the debt, and the mortgagee only sought an order that the insurer pay to the mortgagee the amount of the debt. The estate of the deceased life insured had an interest in the proceedings, as the deceased was a party to the insurance contract, and may have had some basis for arguing that the amount claimed by the mortgagee was not payable. Although the estate had an interest, the mortgagee in neither case sought any order against the estate. Consequently, a representative of the estate was not needed to be joined for the purpose of making an order against the representative.

Steinecke v Wayne

1. [152]

   To similar effect, in Steinecke v Wayne [2011] NSWSC 428 (Steinecke), Brereton J (as his Honour then was) said that:

2. [153]

   Brereton J, on a non-exhaustive basis, identified three circumstances in which the Court may make an order that proceedings continue in the absence of a representative of the estate of a deceased person, who has an interest in the subject matter of the proceedings. The first, being where other parties to the proceedings have the same interests as the estate, is essentially the same basis as his Honour applied in Vukic v Grbin [2006] NSWSC 41.

3. [154]

   The third example, where the deceased had no practical beneficial interest in the property involved in the proceedings, is substantially the same as that identified by Campbell J in Porters v Cessnock City Council.

4. [155]

   Finally, the second basis suggested by Brereton J is perhaps of most interest for the purposes of the present case. His Honour said that the order may be made "…where the interest in question is small or contingent…" That approach would involve a value judgment on the part of the Court, with the result that, if the interest of the estate of the deceased in the subject matter of the proceedings was sufficiently small, the Court could order that the proceedings continue in the absence of a representative.

5. [156]

   Importantly, it seems that in none of the three situations was it contemplated that any order would be made directly against the estate or any representative of the estate.

6. [157]

   The rationale for the making of an order that the proceedings continue without a representative does not appear clearly from these cases, nor indeed from the explanation of the Court’s practice given by Daniell’s. The reason why the order may be made when all of the persons interested in the subject matter of the plaintiff’s claim are parties, and no order need be made against a representative of the estate, is reasonably clear. It appears, however, that the order may be made in circumstances where, at the time of making the order, the Court has to make a judgment of degree about whether or not the estate’s interest is not so significant as to require that it be represented.

Green v Green

1. [158]

   A series of unreported judgments by Hodgson J (as his Honour then was) in the case of Green v Green (No 4024 of 1981), which led to the decision of the Court of Appeal in Green v Green (1989) 17 NSWLR 343, casts some light on the proper application of UCPR r 7.10(2)(a).

2. [159]

   The question was whether the plaintiff, who had had an unmarried relationship with the deceased, and bore him two children, had an equitable interest in a certain property by way of constructive trust, by reason that she had acted to her detriment on the basis of a promise by the deceased that he would allow her to live in the property for her lifetime. There are complications with parties and properties, which may be ignored for present purposes.

3. [160]

   It is sufficient to note that all of the parties who were interested in the estate of the deceased were parties to the proceedings. However, the evidence satisfied his Honour that the estate was insolvent, and the creditors of the deceased were not represented before the Court. Nor was the estate of the deceased separately represented.

4. [161]

   At the beginning of the hearing, counsel for the plaintiff applied for an order under Pt 8, r 16(1)(a) of the Supreme Court Rules 1970 (NSW), which was the equivalent of UCPR r 7.10(2)(a), for an order that the proceedings continue in the absence of a representative of the estate of the deceased. The basis of the application was that all parties interested in the estate were before the Court. Hodgson J was unconvinced. His Honour thought that it could turn out that the estate had an interest that was separate to the interests of the parties to the proceedings. On the other hand, he was not attracted to simply adjourning the two-week hearing and requiring that some party be appointed to represent the estate. In an unreported judgment, delivered on 25 May 1988, Hodgson J said at 5:

5. [162]

   Hodgson J permitted the case to continue, but without making any order under Pt 8, r 16. In essence, his Honour reserved the question until he had heard the evidence and submissions.

6. [163]

   Hodgson J gave his decision in an unreported judgment published on 28 July 1988. In substance, his Honour found that the plaintiff had established, on the basis of the evidence before the Court, a prima facie entitlement to an equitable interest in the relevant property, subject to a consideration of the precise nature of that interest, which depended upon an examination of what conduct on the part of the deceased, had he denied the plaintiff’s entitlement, would have been unconscionable. Hodgson J held that the estate of the deceased had an interest in that question, which was not sufficiently protected by the parties who were present. At 37, his Honour observed that the estate of the deceased should have been represented in the proceedings, and in a normal case, the consequence of the estate not being represented would have been that the plaintiff’s claim would have been dismissed for want of parties. However, harking back to his initial judgment, Hodgson J noted that the case before him was an unusual case, and the non-representation of the estate was not due to any fault on the part of the plaintiff. Accordingly, an order dismissing the plaintiff’s case was not justified. His Honour then said, at 37-38, that:

7. [164]

   Hodgson J gave directions for the Commissioner of Taxation to be provided with a copy of his judgment, and to be invited to advise the Court whether he wished to become a party to the proceedings on behalf of the deceased’s estate.

8. [165]

   Subsequently, the Commissioner of Taxation advised the Court that he did not wish to become involved in the proceedings, or to represent the estate of the deceased. Hodgson J then dealt with the matter in a further unreported judgment on 19 October 1988. His Honour observed, at 1, that: “…It was clear that none of the parties to these proceedings wished to represent the estate or arrange for the representation of the estate in these proceedings…” His Honour then said. at 2-3, as follows: “…I think it is correct to conclude that I can approach the matter on the basis that all persons concerned to represent the interests of the estate have either been represented in these proceedings, or else have had the opportunity to be so represented and have declined that opportunity…”

9. [166]

   Accordingly, Hodgson J made the order under Pt 8 r 16 that had originally been sought, that the proceedings continue in the absence of a representative of the deceased’s estate. He did so, however, on the proviso that the final orders he made in favour of the plaintiff were subject to the right of any personal representative of the deceased, if one were ever formally appointed under a grant of administration, to apply to the Court in the proceedings to vary or set aside the orders made.

10. [167]

    The only reference to this aspect of the proceedings in the decision of the Court of Appeal was the following statement by Gleeson CJ, at 350:

11. [168]

    This case illustrates the importance that the Court attaches to having the estate of a deceased interested party represented where the estate has a real interest in the proceedings. Where necessary, that may come at the price of the plaintiff having to agree to indemnify some independent third party to represent the estate. That is plainly an unfortunate imposition on a plaintiff, who will have no responsibility for the death of the deceased. The course taken by Hodgson J is at least one illustration of how the Court may try to avoid unfairness, delay and unnecessary expense to the plaintiff. I will return to a consideration of these practical issues below.

12. [169]

    It is instructive to note the following observations made by the English Court of Appeal in Millburn-Snell v Evans, referred to above, in which the Court rejected an argument by the appellants, who were plaintiffs who had commenced proceedings to enforce a claim by a deceased estate before they had been granted letters of administration, that the proceedings could be resurrected by the making of an order under CPR r 19.8(1) (which is the functional equivalent of UCPR r 7.10(2)(a)) that they be appointed to represent the estate of the deceased. Rimer LJ, who delivered the primary judgment said, at [22]:

13. [170]

    Further, his Lordship added, at [30]:

14. [171]

    It may be noted that Rimer LJ expressed the view that, although the rule normally is applied in the context of a party dying after the proper commencement of proceedings, where proceedings are already on foot, and it appears that a party who died before the commencement of the proceedings has a relevant interest in the claim, an order may be made under the rule. That is in essence what Ward J did in Hewitt v Gardner, as is discussed above.

15. [172]

    No less an authority than Lord Neuberger of Abbotsbury MR added, at [41]:

16. [173]

    These observations would appear to have application to the proper interpretation of UCPR r 7.10(2), as the differences in wording between that provision and CPR r 19.8(1), particularly the reference to “proceedings” in the first and “claim” in the second, do not appear to be material.

17. [174]

    Finally, it is helpful to consider the observations made in Sir Geoffrey Vos (ed), The White Book Service 2019 (2019, Sweet & Maxwell), Vol 1 at [19.8.1] concerning the application of CPR r 19.8(1):

Summary of legal principles

1. [175]

   The examination of the relevant authorities and procedural rules that has been undertaken above appears to justify the following conclusions concerning the procedural consequences of a person who is entitled to make a claim, or against whom a claim may be made, dying before the completion of proceedings initiated to establish the claim.

2. [176]

   If a person entitled to make a claim dies before proceedings have been commenced, any proceedings commenced by any person interested in the deceased’s estate will only be valid if the rules governing the title of legal personal representatives to commence proceedings are satisfied. As shown by Millburn-Snell v Evans at [14], as an executor derives his or her title to sue from the will and not from the grant of probate, an executor named in a will can validly commence proceedings before probate is granted, but cannot obtain judgment unless the executor first perfects his or her title to sue by obtaining a grant of probate. As an administrator in the case of intestacy only obtains title to act for the estate from the time of the grant of letters of administration, any proceedings instituted to enforce a claim of the estate before the grant of letters of administration are a nullity. Proceedings commenced contrary to these rules cannot be saved by the appointment of a representative under UCPR r 7.10(2)(b).

3. [177]

   Where a person entitled to make a claim dies before the commencement of proceedings to enforce the claim, but other proceedings are validly commenced that are of a nature to which the deceased’s claim may be joined, UCPR 7.10(2)(b) may authorise the appointment of a person to represent the estate, and in appropriate circumstances the representative may not be the executor or person with the best claim to be appointed as administrator: Hewitt v Gardner. It plainly follows that the same course may be taken if the person dies after the commencement of proceedings, whether or not the proceedings were commenced by the deceased.

4. [178]

   Where the person who has died is the person against whom the claim is to be made, and the death occurs before the commencement of proceedings, in this State the proceedings cannot be commenced without the appointment of an administrator ad litem, or the making of a general grant of probate or administration. That is so because in this State there is no rule of court equivalent to r 9.08(1) and (2) of the Victorian Supreme Court Rules (par 13 above) and CPR r 19.8(2) (par 115 above), which expressly authorise the commencement of proceedings against deceased estates. A proceeding commenced against a person who is dead is a nullity: Deveigne v Askar. By parity of reasoning with the decision in Millburn-Snell v Evans, proceedings commenced contrary to this rule cannot be saved by the appointment of a person to represent the estate of the deceased under UCPR r 7.10(2)(b). This proposition assumes the correctness of the conclusion that UCPR r 7.10 only applies to the continuation of proceedings that have already properly been commenced. In making these observations I put aside, as not being presently relevant, the case where the plaintiff seeks an in rem order, such as for possession of property formerly owned by the deceased, in which case it may be permissible for the plaintiff to join the NSW Trustee as a defendant: GEL Custodians and Bendigo and Adelaide Bank Ltd v The Estate of McLean.

5. [179]

   Although a plaintiff may nominate a person to be appointed as an administrator ad litem for a deceased defendant, the person appointed probably has fiduciary duties to the beneficiaries of the estate that require the administrator to act independently of the plaintiff: In the Estate of Coe.

6. [180]

   If a party to proceedings dies before their completion, any orders made in the proceedings will be invalid unless an appropriate order for the continuation of the proceedings has been made under UCPR r 7.10(2): In re Amirteymour. Alternatively, a legal personal representative of the deceased person, who has been appointed under a general grant or as an administrator ad litem may be substituted as a party under UCPR r 6.30 (par 39 above).

7. [181]

   An exception to that proposition is the effect of UCPR r 29.12 (par 109 above), which authorises the Court to give and enter judgment if a party dies after the verdict or finding on the questions of fact. Presumably, where the party is a defendant, the orders will be made against the name of the deceased. The rule appears to have the rationale that, once the parties have been given the opportunity to contest the verdict or the findings of fact, they have been accorded procedural fairness so there is no injustice in the Court giving and entering judgment that binds their estates.

8. [182]

   UCPR r 7.10(2) has application wherever proceedings have been validly commenced, and a plaintiff or defendant dies after the commencement of the proceedings. That is so in the present case.

9. [183]

   Hewitt v Gardner is authority for the proposition that an order may be made under UCPR r 7.10(2)(b) for the appointment of a representative of the estate of a deceased claimant. The case is also authority for the proposition that a representative order may be made in respect of the estate of a deceased claimant or defendant when the estate is the sole party interested in the prosecution or defence of the particular claim.

10. [184]

    Although UCPR r 7.10(2), by the apparently clear meaning of its words, gives the Court a discretionary choice in all cases where a plaintiff or defendant with the relevant interest in the proceedings dies after their commencement, as to whether to order that the proceedings continue in the absence of a representative of the deceased, or alternatively that a particular person be named to represent the deceased person’s estate, the exercise of that discretion has been historically confined by rules of practice of some antiquity.

11. [185]

    Looking only to the case where it is a defendant who has died, it appears that the nature and rationale of the rules of practice may not be entirely clear.

12. [186]

    The basis of the common law restrictions on proceedings being commenced by or prosecuted against deceased persons has not been explored in detail, but the restrictions appear to flow from the consideration that, upon the deceased’s death, his or her property instantly passes to others, who have the right to defend the claim, and that, in principle, in personam claims may only be conducted against a living person against whom orders may be made. The Court of Chancery initially had a strict rule that all interested persons were required to be parties to the proceedings. This requirement was arguably less technically based than the common law rules, as it seems to have been directed at insisting that all interested parties had an opportunity to protect their positions, for reasons that would now be considered to involve procedural fairness.

13. [187]

    The effect of s 61 of the Probate Act is that the property of a deceased person vests in the NSW Trustee. On the balance of authority, the NSW Trustee does not have any obligation to bring or defend claims in the name of the deceased person. The deceased's property will only vest in an executor or administrator if a formal grant of representation is made. That may cure the former problem where different parts of the deceased person's estate may have vested in different classes of people. However, it has created a new problem in that there may be a gap, which may be of indefinite duration, as to when the deceased's property vests in a legal personal representative of the deceased, who can be joined to the proceedings without the representative's consent. The position may be different where the plaintiff seeks in rem relief against the deceased's property, but that is not this case. In part, the question now faced by the Court is whether a rule such as UCPR r 7.10, which is derived from rules that pre-date the effect of s 61 of the Probate Act, can be utilised to alleviate the problem that has been created.

14. [188]

    UCPR r 7.10(2) (as also does UCPR r 29.12) alters the effect of the common law and equitable strictures, in that they provide positive authority for the Court to proceed in a manner that would previously have been invalid. While the rationale for the superseded rules may remain relevant, the exercise of the discretion as to whether an order should be made under UCPR r 7.10(2), and if so, which of the alternatives should be adopted, should now involve a discretion that should be exercised judicially.

15. [189]

    The authorities justify a conclusion that, as a matter of practice, the Court will only order that the proceedings continue in the absence of a representative of the deceased person’s estate in relatively limited circumstances. An order to that effect may be made where there are other parties in the same interest as the estate, who can be expected to properly contest the issues involving those parties, in a manner that will consequently protect the interests of the estate. A matter that will be material to the Court’s satisfaction that the interests of the deceased’s estate will adequately be protected in this manner will be a consideration of the cost and inconvenience of either requiring the appointment of an administrator ad litem, or the appointment of a representative under UCPR r 7.10(2)(b): Vukic v Grbin and Steinecke.

16. [190]

    Otherwise, the practice seems to be that the Court may make a judgment on the facts that, although the estate of the deceased has a technical interest in the issues that require decision, for some reason the Court’s adverse decision will not have any material effect upon the estate, or the effect will be relatively inconsequential. Presumably, any value judgment concerning the relative significance of any adverse effect will require the Court to consider the offsetting adverse consequences of the costs of insisting upon the appointment of a representative of the deceased’s estate: Porters v Cessnock City Council and Steinecke.

17. [191]

    A further material consideration is whether, if the Court makes an order that the proceedings continue in the absence of a representative of the deceased’s estate, upon the success of the claim the Court will be able to make orders that give practical effect to the Court’s judgment.

18. [192]

    In the general case, the Court will not permit the proceedings to continue without the appointment of a person to represent the deceased’s estate: see Colquhoun, Ivanovski, GEL Custodians, Bendigo and Adelaide Bank Ltd v The Estate of McLean and Green v Green at first instance.

19. [193]

    However, as Ivanovski and Green v Green demonstrate, the consideration that the Court must require the appointment of a representative of the deceased’s estate, in the face of the consequence that the failure to make an appropriate order under UCPR r 7.10(2) will render the final orders of the Court invalid, does not necessarily require that the Court appoint a representative of the estate before any further steps are taken in the proceedings, on the basis that the representative will necessarily take all steps available to defend the claim, and for that purpose that the representative will be provided with the funds required to do so, if necessary by the plaintiff. The approaches adopted by Hammerschlag J and Hodgson J show that the Court is entitled to adopt a much more flexible approach to the application of UCPR r 7.10(2)(b) that is proportionate to the need for the Court to be satisfied that the deceased’s estate has appropriately been protected.

20. [194]

    Although in Vukic v Grbin Brereton J made an order that the proceedings continue in the absence of a representative of the estate of the deceased, rather than to appoint a representative, the flexibility that is inherent in UCPR r 7.10 is shown by the fact that his Honour considered that the estate was sufficiently represented because all persons who had the same interest as the estate had been joined and properly served, even though none of them had appeared and taken any steps to defend the interests of the estate.

21. [195]

    Although the grounds upon which the Courts have required, or contemplated the requirement of, the appointment of a representative of the deceased’s estate may not always have been stated, or expressed clearly, in my view the Court should be guided by considerations of procedural fairness. Although it is sometimes said that proceedings for in personam relief should be maintained against a living person, and that in personam orders can only be made against a living person, I respectfully doubt that these considerations should be paramount. UCPR r 29.12 shows that orders in in personam proceedings can be made and entered against a defendant after that person’s death. Even if a representative of a deceased estate is appointed under UCPR r 7.10(2)(b), any order made in the form: judgment for $X against Y (as representative of the deceased estate of Z), will have no different effect than a judgment in the form: judgment for $X against the deceased Z. Neither judgment will be enforceable against the personal estate of Y, and the insistence upon the judgment being given against a living person, because the proceedings are for in personam relief, will have little point, given that the person against whom the judgment is entered is not the person whose assets will be available to satisfy the judgment.

22. [196]

    Where, as here, the relief sought by the plaintiff in personam against the defendant involves the making of orders that must be satisfied by execution against the deceased’s property, or by the making of orders that change the entitlement of the deceased to his or her property, it may be that the Court's orders cannot be given effect unless and until a formal grant of representation is made for the deceased's estate. That may depend upon whether the particular order of the Court is such that some form of execution is available under the rules of court that does not require the existence of a living defendant. That is not a matter that has been considered in these reasons. If it is necessary that there be a formal grant of representation for the estate before the Court's orders may be implemented, the fact that the plaintiff has ceased to be a claimant, and has become a creditor, will give the plaintiff title, in the absence of an applicant with a better claim, to seek a grant of administration under s 63 of the Probate Act.

23. [197]

    The proper basis for the exercise of the Court’s discretion under UCPR r 7.10(2) should be whether, in all of the circumstances, which will include the opportunity given to all persons interested in the estate of the deceased to defend the claim, the effect of the costs to the plaintiff of the Court’s insistence upon the appointment of a representative for the deceased’s estate, and the nature and significance of the issues involved, a representative of the estate should be appointed, and if so upon what terms?

24. [198]

    The present application involves the Court exercising a power given to it by the rules of court, and the interpretation of the provision of such a rule. Section 56(2) of the Civil Procedure Act 2005 (NSW) in clear terms requires the Court to seek to give effect to the overriding purpose when carrying out this task. Sub-section (1) establishes the overriding purpose as being the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. Sight must not be lost of this fundamental principle when determining how UCPR r 7.10 is to be applied in the present case.

Application of UCPR r 7.10 in the present case

1. [199]

   It is appropriate to begin the consideration of how UCPR r 7.10 should be applied to the present application by the Council by identifying the circumstances that are material to the exercise of the Court’s discretion. One such circumstance is the nature of the problem that has called for the application of the rule. It will be convenient to add the following summary to the consideration of this issue that I have set out above.

2. [200]

   In the present case, the Council is a claimant and not yet a creditor of Mr Goodman’s deceased estate. Consequently, the Council cannot itself apply for a grant of administration under s 63(d) of the Probate Act. Such an appointment would be made in favour of one of the Council’s officers designated by the Council to take a grant on its behalf (described as a syndic): see Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 at 625. In any event, until the proceedings are determined, the Council is in a position of conflict with Mr Goodman’s estate, so one of its designated officers would likely not be a suitable grantee.

3. [201]

   Ms Holden, as Mr Goodman’s de facto partner (ss 32G(2) and 63(a) of the Probate Act), and Mr Goodman’s daughter (s 63(b) of the Probate Act), and perhaps others, have an entitlement to apply for a grant of administration of Mr Goodman’s estate, but no one has applied for a grant, notwithstanding the indications made on behalf of Ms Holden that she would do so. Consequently, no one with a real interest in Mr Goodman’s estate has applied for a grant of administration.

4. [202]

   The effect of UCPR r 7.10(2)(b) is that the Council cannot procure an order appointing Ms Holden or Mr Goodman’s daughter, or any other person with a real interest in Mr Goodman’s estate, as a representative of the estate for the purposes of the proceedings, without their consent.

5. [203]

   Consequently, the Council may not be able to continue the proceedings against Mr Goodman’s estate on the basis that a representative of the estate has been appointed who has a real interest in conducting the defence.

6. [204]

   However, as explained in par 24 above, the Council to date has only notified potentially interested persons that, if they did not apply for a grant of administration of the estate of Mr Goodman, this Court may grant administration of the estate to the NSW Trustee. The people who received that notice could well have taken the view that it suited their interests for the NSW Trustee to accept the burden of administration of Mr Goodman's estate. They have not yet been given notice of the Council’s intent to have the Court make an order under UCPR r 7.10, so that either the proceedings will continue in the absence of a representative of Mr Goodman’s estate, or some stranger to them will be appointed to represent the estate, on terms that have not yet been decided.

7. [205]

   I agree with so much of the practical guidance to plaintiffs set out by Derham AsJ in Bendigo and Adelaide Bank Ltd v The Estate of McLean (par 90 above) as is applicable to proceedings that do not seek in rem relief. Step (a) requires that the Council should give to all persons who, as far as the Council knows, are interested in the estate of Mr Goodman, notice in terms of the preceding paragraph, which should include a requirement that any interested person who wishes to respond must inform the Council’s solicitors in writing of their position by a stated date, and then appear before the Court at a convenient time to be arranged by the Council with my Associate.

8. [206]

   The course that is proper for the Court to take will be influenced by the response of the persons who have a real interest in Mr Goodman’s estate. The Court should not pre-judge the issue, but in principle it will always be preferable for the person appointed to represent the estate of the deceased defendant under UCPR r 7.10(2)(b) to be a person with a real interest in the estate.

9. [207]

   However, if no such person consents to represent the estate, the consequence will be that the persons who have a claim to the estate, and an interest in defending it, have elected not to act in that interest. Unless they provide some explanation to the Court that justifies a conclusion that they are unable for some proper reason to defend their own interests, the Court may be entitled to proceed upon the basis that the interested persons do not wish to contest the Council’s claim.

10. [208]

    Although it may be necessary for the Court to hear from the Council and any interested persons on the subject, it must be remembered that the rules that the Court applies to ensure that all interested persons are made parties to proceedings do not have the purpose of ensuring that all interested persons participate positively in the hearing and contest all relevant issues. Except perhaps in cases where the Court acts proactively because of the apparent incapacity of a party, so as to ensure that the party’s interests are protected, the requirement that all interested persons must be made parties may be satisfied by proof of their joinder, and service of process in compliance with the rules of court. Ordinarily, if parties who have been joined and served elect not to defend the claim, then subject to the Court being satisfied at a default hearing that the plaintiff has established its claim, the Court will be prepared to give judgment against the absent defendants in the absence of any active defence by them.

11. [209]

    This may be a legitimate consideration if no person who may be interested in the estate of Mr Goodman, who is given notice of the application made by the Council under UCPR r 7.10 in the manner outlined above, comes forward to represent the estate and defend the claim.

12. [210]

    While the evidence is presently indefinite concerning the nature and value of Mr Goodman's estate, in comparison to the claims made by the Council, the evidence does not permit the Court to proceed upon the basis that the estate is insubstantial (a ground proposed by Brereton J in Steinecke). As the evidence stands, the Court must assume that the persons who may be entitled to share in the estate of Mr Goodman have a substantial interest in these proceedings. That said, the Council has not yet had the opportunity, if it thinks fit, to attempt to persuade the Court on the evidence that, notwithstanding the apparent complexity of its claim against Mr Goodman, the Court should order that the proceedings continue without the appointment of a representative of his estate because, in comparison to the likely costs and time involved in prosecuting the claim, the interests of Mr Goodman’s estate are in practical terms insubstantial.

13. [211]

    If, in accordance with the general rule of practice discussed above, the circumstances of the present case suggest that a representative of Mr Goodman’s estate must be appointed, that focuses attention on the question: what does UCPR r 7.10(2)(b) require to occur as a result of the appointment of a representative? What, if any, response to the Council’s claim does the rule imply the representative must undertake, and on what terms?

14. [212]

    If the rationale for the requirement for representation is to ensure that the estate’s interests are protected by being represented, then, in a case where the persons with a real interest in the estate are unwilling to defend the claim, and that means that the Council must identify a willing representative who is independent of the Council for the purpose of that person being appointed to represent the estate, the rationale is hardly satisfied. How real is it for the Court to require the appointment as representative of a person who is disinterested in the estate, because that is necessary to ensure that the interests of the estate are properly represented?

15. [213]

    In principle, the untimely death of the defendant should not frustrate the continuation of the proceedings, if no person interested in the estate will agree to represent it. Further, in principle, the prospects of the plaintiff securing the just outcome to which it may be entitled should not be thwarted by the assets of the estate being diminished in the payment of costs by an independent representative, on the basis that the logical consequence of the appointment of a representative of the defendant’s estate is that the representative will conduct a thorough defence. Still less does it seem just that the plaintiff should be required to indemnify the representative to conduct a thorough defence, which would entail the plaintiff having to fund the defence of its own claim.

16. [214]

    Even accepting that it is the Court's general practice to require the appointment of an independent representative of the estate of the deceased party in almost all cases, in circumstances where the deceased him or herself may not have fully contested the claim it should not be that the consequence of the party's death is that the Court must insist upon the appointment of a representative to conduct a thorough defence, irrespective of the reasonableness of that course, including the unnecessary diminution of the estate, or a requirement that the plaintiff fund the defence. I take that proposition to be self-evident, although it must be applied in the context that, other than in exceptional cases, it is a rule of general practice that the Court requires the appointment of a representative.

17. [215]

    At least in cases where the persons with a real interest in the deceased defendant’s estate choose not to consent to representing the estate, any requirement under the rules of court that a representative of the estate must be appointed before the proceedings can continue necessarily entails the Court having some responsibility for the consequences of the appointment, including for the purpose of ensuring that those consequences are just.

18. [216]

    Consequently, even where a representative of the deceased defendant’s estate must be appointed, the Court must have the power, and perhaps the responsibility, to ensure that a proper and proportionate judgment is made by the representative as to the response that is justified in defence of the claim, having regard to its merits, the evidence available to the defence, and the justification for expending the estate in conducting the defence. In short, it may be for the Court to appoint a representative on terms that facilitate the representative determining a response to the defence of the claim that is sensible in all the circumstances, in much the same way as the defendant may have done had they been able to decide for themselves.

19. [217]

    The observations that I have made above must be subject to any submissions that the Council, any persons interested in Mr Goodman’s estate, and perhaps any person who is nominated by the Council to be appointed as the representative of the estate, may wish to make, and the Court will remain open-minded for that purpose.

20. [218]

    I propose to deliver this judgment and invite the Council to arrange for a further hearing by contacting my Associate, for the purpose of the Court making appropriate procedural orders to facilitate the efficient and cost-effective continuation of these proceedings, notwithstanding the death of Mr Goodman.