Obtaining urgent grant in exceptional circumstances – case note on The Estate of Raymond David [2022] NSWSC 48
On 21 December 2021, Raymond and his son Joseph (the vendors) entered into a contract for the sale of the property for $6m. The date for completion was set for 31 January 2022. A deposit of $300,000 was paid on exchange of contracts and released to Raymond, which was used partly in payment of his debts. The contract did not permit the purchaser to rescind the contract in the event of the vendor’s death and it provided the service of a 14-day notice to complete in the event of default by either party.
Raymond died on 10 January 2022.
The plaintiffs were concerned that following the unexpected death of Raymond, the vendors will be in default under the contract if they are unable to complete the sale on 31 January 2022.
The purchasers took out mortgage finance to fund the purchase and were seeking early completion of their purchase to avoid interest being imposed by major banks in Sydney.
One of the plaintiffs was a solicitor and was aware that there is a delay in obtaining a grant of probate in the ordinary course through the Supreme Court of NSW Probate Registry and he opined that this process could take a minimum of three months.
The pressure was on the plaintiffs to obtain an urgent grant pursuant to s.74 of the Probate Administration Act 1898 (NSW) for the purpose of completing the sale. This was an exceptional circumstance justifying the need to obtain an urgent grant where both parties stood to lose from the loss of sale. The purchasers would be entitled to terminate the contract due to their financial pressures and seek damages for the unintended breach of the contract by the vendors. The vendors would be entitled to rescind the contract and the purchasers would miss out the sale bargain directed and intended by Raymond for the benefit of his family.
Ward CJ noted that this was “an appropriate case in which to make the appointment in order to preserve the assets of the estate … being the proceeds of the Contract for Sale entered by the deceased prior to his death and that it is appropriate to dispense with the need for an administration bond or sureties.” [12]
Amongst other limitations on the grant, the grant was primarily limited to the extent of doing all things necessary to complete the Contract for Sale and place some net proceeds of sale, until the plaintiffs obtained a full grant in the ordinary course.
Conclusion
This case demonstrates the power exercised by the Court under s.74 to appoint, if necessary or convenient, a person to be the administrator of the estate of the deceased or any part thereof upon the appointed person giving such security (if any) as the Court directs and may limit such administration as the Court thinks fit in the circumstances where there is an urgent need to obtain a grant.
