Richard Albarran and Blair Pleash as Receivers and Managers of Maiden Civil (P&E) Pty Limited v Queensland Excavation Services Pty Limited (No 2)

[2013] NSWSC 1086

Supreme Court

New South Wales

Medium Neutral Citation:

Richard Albarran And Blair Pleash As Receivers And Managers Of Maiden Civil (P&E) Pty Limited v Queensland Excavation Services Pty Limited And Others (No 2) [2013] NSWSC 1086

Hearing dates:

Thursday 11 July 2013

Decision date:

11 July 2013

Jurisdiction:

Equity Division - Corporations List

Before:

Brereton J

Decision:

Order that Sarah Sussannah Cullenane be appointed to represent the estate of the sixth defendant Wayne Cullenane, deceased, for the purposes of this suit, and that the title to the proceedings be amended so that the sixth defendant is Sarah Sussannah Cullenane appointed by order of 11 July 2013 to represent the estate of Wayne Cullenane, deceased.

Order that the second and sixth defendants deliver up to the first plaintiff Caterpillar 320D excavator, VIN No CAT 0320ETDH01035.

Order that the first, second and sixth defendants pay the plaintiff's costs of the proceedings.

Catchwords:

PROCEDURE - where defendant dies after judgment reserved and before judgment delivered - where probate has not been granted - order made under UCPR rule 7.10 appointing a representative of the deceased estate

Legislation Cited:

(NSW) Uniform Civil Procedure Rules 2005, r 7.10

Category:

Consequential orders

Parties:

Richard Albarran and Blair Alexander Pleash in their capacity as Receivers and Managers of Maiden Civil (P & E) Pty Ltd (Receivers and Managers Appointed) (ACN 134 402 618)
Fast Financial Services Pty Ltd (ACN 133 952 860
Central Plant Hire (NT) Pty Ltd (ACN 110 893 797) (second defendant)
Wayne Cullenane (sixth defendant)

Representation:

Counsel:
Mr MR Lawson (plaintiffs)
Mr Peer Schroter (defendants - solicitor) - mentioned
Solicitors:
Thomsons Lawyers (plaintiffs)
Povey Stirk (defendants)

File Number(s):

2012/ 244768

Judgment (ex tempore)

1. HIS HONOUR: On 27 June 2013 I delivered reasons for judgment in these proceedings ([2013] NSWSC 852) and, in the absence of any opposition to that course, formally gave judgment that the first defendant deliver up to the first plaintiffs the 930 and the 330 Caterpillars. I adjourned the proceedings to today for short minutes in respect of the proceedings against the second and sixth defendants, and generally in respect of costs. The adjournment in respect of the second and sixth defendants, was necessitated inter alia because it had come to the notice of the Court that the sixth defendant, who was the principal of the second defendant, was deceased.

1. Today, the Court has been furnished with a copy death certificate of the sixth defendant, and a copy of his will dated 24 September 1996 by which he appointed his wife Sarah Sussannah Cullenane his executrix and trustee. However, the Court is informed that there has been no grant of probate. In those circumstances, I cannot appoint Mrs Cullenane in her capacity as executrix to represent the estate. However, pursuant to (NSW) Uniform Civil Procedure Rules 2005, Part 7 rule 10, the Court may appoint a representative of a deceased person's estate for the purposes of the proceedings, with the consent of the person to be appointed.

1. The Court has been provided with short minutes of order providing for the appointment of Mrs Cullenane, signed by a solicitor who is said to be acting on her behalf, and that evidences her consent to being appointed to represent the estate.

1. Accordingly, pursuant to UCPR rule 7.10(2)(b), I order that Sarah Sussannah Cullenane be appointed to represent the estate of the sixth defendant Wayne Cullenane, deceased, for the purposes of this suit, and that the title to the proceedings be amended so that the sixth defendant is Sarah Sussannah Cullenane appointed by order of 11 July 2013 to represent the estate of Wayne Cullenane, deceased.

1. There is now no obstacle to proceeding to formal judgment against the second and sixth defendants. I give judgment that the second and sixth defendants deliver up to the first plaintiff Caterpillar 320D excavator, VIN No CAT 0320ETDH01035.

1. No submission has been made against the ordinary costs consequences of the plaintiff's success. I order that the first, second and sixth defendants pay the plaintiff's costs of the proceedings.

**********