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Re Kelly[2022] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:

Re Kelly [2022] QSC 117

PARTIES:

JOHN ANTHONY GREENHALGH AND THERESE NATASJA KELLY

(applicants)

RE: IN THE WILL OF BERNARD JOHN KELLY (DECEASED)

FILE NO/S:

BS No 3780 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX

TEMPORE ON:

6 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2022

JUDGE:

Williams J

ORDER:

  1. Pursuant to section 6(3) of the Succession Act 1981 (Qld), John Anthony Greenhalgh and Therese Natasja Kelly be granted letters of administration ad colligenda bona of the will of the above deceased dated 18 October 2021, pending a grant of probate of the will or further order of this Court, limited to preserving, operating and negotiating the restructure and sale of the deceased’s corporate and business interests referred to in paragraphs 13 to 17 of the affidavit of John Anthony Greenhalgh filed on 4 April 2022.
  2. The costs of and incidental to this application and order be assessed on an indemnity basis and paid out of the estate of the deceased. 
  3. Liberty to apply.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION – GRANT OF LETTERS OF ADMINISTRATION AD COLLIGENDA BONA – where there are delays in obtaining the deceased’s death certificate – where there will be delays in obtaining probate of the deceased’s will – where an application is made for orders to enable the business affairs of the deceased to be protected – where there is a dispute in relation to the structure of the business – whether losses could result to the business and to the estate if steps are not promptly taken to deal with the dispute – whether letters of administration ad colligenda bona should be granted

Succession Act 1981 (Qld), s 6

In the matter of the will and estate of Joseph William Korp [2005] VSC 337

Re Cohen [1975] VR 187

Re Tratt [1980] VR 657

COUNSEL:

S M Gerber for the Applicant

SOLICITORS:

Greenhalgh Pickard for the Applicant

  1. [1]
    The applicants bring this application before the Court seeking orders for a grant of limited administration ad colligenda bona of the deceased’s will dated 18 October 2021, and a further order for costs of and incidental to this application and that the order be assessed on an indemnity basis to be paid out of the estate of the deceased.  There is material before the Court that the deceased died on 20 March 2022.  There is a delay due to the circumstances of the deceased’s death in obtaining a death certificate.  There will also be delays following the receipt of the death certificate to enable probate to be obtained of the deceased’s will dated 18 October 2021.  In these circumstances, the application is made for orders to enable the business affairs of the deceased to be protected.
  2. [2]
    Before the Court is an affidavit of John Greenhalgh outlining the deceased’s business and various corporate positions.  There appears to be corporate entities of which the deceased was a director and shareholder, and the deceased was also the primary beneficiary of a trust involved in a discretionary trust.  The details of these entities and the business are set out in exhibits to Mr Greenhalgh’s affidavit.  Most relevantly, the deceased’s primary business at the date of his death was the management operation of a business by the name of Bid My Solar.  This business was owned by ARAP Capital Pty Ltd.  That company in turn was owned equally by Monsoco Pty Ltd, which was the trust company, and Neosprout Pty Ltd, of which a Mr Singh was a director.  The deceased and Mr Singh were the directors of ARAP.
  3. [3]
    What has become apparent on the material is that prior to the deceased’s death, an issue arose in relation to the structure of the business.  When the deceased died, Bid My Solar was in the midst of a restructure.  The material suggests the deceased was seeking to increase the value and number of ARAP shareholdings by raising additional shares to another company that he owned.  As a result of certain steps taken, a dispute emerged, and there was a breakdown in negotiations between the deceased and Mr Singh and others.  This dispute was unresolved at the time of the deceased’s death. 
  4. [4]
    It is submitted that without a grant or a limited grant, the applicants do not have authority or power to operate and preserve the estate’s business enterprises or to negotiate and settle any dispute between Bid My Solar’s owners.  As a result, this could result in losses to the business and to the estate and negatively impact the owners and staff of Bid My Solar.  It is in these circumstances that the applicants seek a limited grant of the deceased’s will in order to protect the estate and to enable the deceased’s business to continue to operate, including attempting to resolve issues regarding its corporate structure.
  5. [5]
    Section 6(3) of the Succession Act 1981 (Qld) provides that:

“A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.”

  1. [6]
    I have been referred to some academic texts in respect of this issue and a case.  It is submitted that there is not a relevant case in Queensland in respect of the principles to be applied in these circumstances. 
  2. [7]
    In Lee’s Manual of Queensland Succession Law, it recognises that:

“Where there may be a delay before a personal representative can be appointed and there are assets of the deceased which require protection, or debts or taxes which need to be paid from them, a grant ad colligenda bona may be made.”

  1. [8]
    It also recognises the most common case is where authority is needed for the carrying on of a business belonging to the deceased.  The case referred to for that principle is Re Tratt [1980] VR 657.  It is also noted that such a grant “is not made to a person who has merely neglected to take out a proper grant within a reasonable time”.
  2. [9]
    That is not the circumstance here. 
  3. [10]
    The principles are also discussed in Dal Pont’s Law of Succession, where it is stated that the history of a limited grant ad colligenda bona is the recognition of a limited grant to collect the goods.  It is recognised that grants of limited administration were made for the purposes of collecting a deceased’s property of a perishable or precarious character where there would be unavoidable delay in a Court granting probate or general administration.
  4. [11]
    These historical roots of a limited grant have been expanded, and as indicated, there is a more general power in section 6(3) of the Succession Act.  Dal Pont refers to the authority of Re Cohen [1975] VR 187, where it is stated:

“If there should be some existing circumstance whereby a grant of probate or administration cannot be made promptly and the nature of the estate of the deceased person requires protection by a personal representative of the deceased, the court has clear power to and will authorize some person to collect and protect the assets of the estate until a grant of probate of a will or full administration of estate can be made.  The foundation for making the grant is that the usual representation for some reason cannot be promptly obtained after death and the nature of the assets of the deceased require that something be done about their administration for their protection.”

  1. [12]
    Similar to Lee, Dal Pont recognises that a common example of administration ad colligenda bona is to safeguard and protect a deceased’s business as an asset of the estate. 
  2. [13]
    I have also been taken to the Victorian authority of In the matter of the will and estate of Joseph William Korp [2005] VSC 337.  That application included an application for letters of administration to collect and preserve certain assets in circumstances where they were concerned that their value may depreciate if their realisation was delayed until the grant of probate.
  3. [14]
    The form of order is set out at paragraph 17 of those reasons.  In that case, the limited purpose of the letters of administration was clearly articulated in the form of order.  It was further made limited until the grant of probate or general administration be made or until further order.  Such an order clearly identifying the limited purpose seems appropriate in the current circumstances of the current application.
  4. [15]
    In the circumstances, I am satisfied that I have power to grant the limited administration, and further, I am satisfied that the particular circumstances of the business are such that it is likely that losses could result to the business and to the estate if steps are not promptly taken to deal with the ongoing operation of the business, but also to deal with any restructure and negotiation of the dispute which has arisen.  In the circumstances, I consider that it is appropriate to make the orders sought. 
  5. [16]
    I have been provided with a draft order and have amended the draft order to add at the beginning that it be pursuant to section 6(3) of the Succession Act.  I have corrected a typographical error of the word “business”, and I have also added that the grant be pending a grant of probate of the will or further order of this Court.  I have also added that there be liberty to apply.  In the circumstances, I will make an order as per the amended draft.
  6. [17]
    The order of the Court is that:
  1. Pursuant to section 6(3) of the Succession Act 1981 (Qld), John Anthony Greenhalgh and Therese Natasja Kelly be granted letters of administration ad colligenda bona of the will of the above deceased dated 18 October 2021, pending a grant of probate of the will or further order of this Court, limited to preserving, operating and negotiating the restructure and sale of the deceased’s corporate and business interests referred to in paragraphs 13 to 17 of the affidavit of John Anthony Greenhalgh filed on 4 April 2022.
  2. The costs of and incidental to this application and order be assessed on an indemnity basis and paid out of the estate of the deceased. 
  3. Liberty to apply.
Close

Editorial Notes

  • Published Case Name:

    Re Kelly

  • Shortened Case Name:

    Re Kelly

  • MNC:

    [2022] QSC 117

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    06 Apr 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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