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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 28 March 2017 at 01:31)
Part 78 Division 11
Division 11 Accounts and commission
75   Definitions
In this Division:
commission means commission referred to in section 86 of the Probate and Administration Act 1898.
parent proceedings, in respect of an estate the subject of proceedings for the passing of accounts, means the proceedings in which:
(a)  probate or administration has been granted, or
(b)  a foreign grant has been resealed,
in respect of the estate.
proceedings for the passing of accounts means proceedings for an order passing accounts under section 85 of the Probate and Administration Act 1898.
76   Commencement of proceedings
(cf former Part 78, rule 75)
(1)  Proceedings for the passing of accounts for an estate must be commenced by notice of motion in the parent proceedings.
(2)  The notice may, but need not, request the Court to allow the applicant to be paid commission from the assets of the estate.
77   Further requirements where applicant seeks commission
(cf former Part 78, rule 85)
If the applicant seeks commission he or she must file with the notice of motion commencing the proceedings:
(a)  an affidavit in support of the application, and
(b)  where the accounts were not filed within the time fixed by the rules or any order of the Court, an affidavit explaining the delay.
78   Objection prior to proceedings
(cf former Part 78, rule 77A)
(1)  At any time prior to the commencement of proceedings for the passing of accounts for an estate in respect of which:
(a)  probate or administration has been granted, or
(b)  a foreign grant has been resealed,
any person (the objector) may, by filing a notice of his or her intention to do so, object to the passing of accounts or the allowance of commission, as the case may be.
(2)  The address for service shown in the notice is taken to be the objector’s address for service in any such proceedings.
(3)  On the commencement of any such proceedings, the registrar must serve a copy of the notice on the applicant.
(4)  As soon as practicable after being served with such a copy, the applicant in any such proceedings must serve a copy of the originating process on the objector.
79   Notice of proceedings
(cf former Part 78, rules 76 and 87)
(1)  At least 14 days before the commencement of proceedings for the passing of accounts, the applicant must cause to be published a notice of:
(a)  the filing of the accounts, and
(b)  the order or orders claimed in the proceedings.
(2)  The notice must be published on the New South Wales Online Registry website.
(3)  The applicant must file an affidavit of compliance with this rule.
(4)  The Court may order the applicant to give notice of the proceedings to any person.
80   Sureties
(cf former Part 78, rule 77)
(1)  At least 14 days before the commencement of proceedings for the passing of accounts for an estate in respect of which an administration bond has been executed under section 64 of the Probate and Administration Act 1898, the plaintiff must serve on each surety to the bond a copy of the notice referred to in rule 79 (1).
(2)  The plaintiff must file an affidavit of compliance with subrule (1).
(3)  Instead of or in addition to complying with subrules (1) and (2) in respect of any surety, the plaintiff may file the consent of the surety to an order passing the accounts, with an affidavit verifying the consent endorsed on the document containing the consent.
81   Inspection and appearance
(cf former Part 78, rule 78)
(1)  This rule applies if proceedings for the passing of accounts have been commenced but the hearing of the proceedings has not been completed.
(2)  Any person may inspect the accounts at any time after the commencement of the proceedings, without leave, unless the registrar otherwise directs.
(3)  Any person intending to object to the passing of the accounts may, at any time before completion of the hearing, enter an appearance in the proceedings.
(4)  Any person entering an appearance in the proceedings is to be joined as a respondent in the proceedings.
82   Vouching
(cf former Part 78, rule 79)
Unless the Court otherwise directs, accounts are to be vouched:
(a)  in the absence of the public, and
(b)  without the appearance before the Court of any person, and
(c)  without an appointment being obtained for the vouching.
83   Court may require further evidence, documents and notices
(cf former Part 78, rule 80)
In any proceedings for the passing of accounts, the Court:
(a)  may require further evidence to be furnished, further documents to be filed and further notices to be given, and
(b)  if satisfied that the accounts are correct, may make an order passing the accounts, and
(c)  if satisfied that any commission that is sought is appropriate, may make an order allowing commission.
84   Certificate as to passing of accounts
(cf former Part 78, rule 81)
(1)  If the Court makes an order passing accounts, the registrar is to issue the applicant with a certificate as to the balance of the accounts.
(2)  If the Court makes an order allowing commission, the certificate must also certify as to:
(a)  the amount of capital realised, and
(b)  the amount of income collected, and
(c)  the value of any assets transferred to beneficiaries, and
(d)  where a business was carried on, the gross receipts and net profit earned or loss incurred,
during the period to which the accounts relate.
85   Time for filing etc accounts under section 85 of P&A Act
(cf former Part 78, rules 71 and 73)
(1)  For the purposes of section 85 (1) and (1AA) of the Probate and Administration Act 1898, the time within which accounts for an estate in respect of which:
(a)  probate or administration has been granted, or
(b)  a foreign grant has been resealed,
must be filed, verified and filed or verified, filed and passed, as the case requires, is 12 months after the relevant grant or resealing.
(2)  An executor or administrator may, in the proceedings for the grant of probate or administration or the resealing of a foreign grant, move for an order extending the period for compliance with section 85 (1) or (1AA) of the Probate and Administration Act 1898, including an order extending the period until the further order of the Court, without the prior filing or service of notice of the motion.
Note.
 These rules do not fix a time limit under section 85 (1A), (1B) or (5) of the Probate and Administration Act 1898. Subject to any order made by the Court, no time limit will therefore apply under those subsections.
86   Renunciation of commission under section 86 (3) of P&A Act
(cf former Part 78, rule 86)
If, in any proceedings for the passing of accounts, the applicant wishes to renounce his or her right to commission:
(a)  the applicant may do so, at any time before the hearing of the proceedings, by filing a renunciation of commission, and
(b)  if the applicant does so, the accounts must be allowed in accordance with the indemnity referred to in section 86 (3) of the Probate and Administration Act 1898.
Note.
 Under section 86 (3) of the Probate and Administration Act 1898, an executor, administrator or trustee who renounces their right to commission for work carried out in relation to a deceased’s estate, and engages a legal practitioner to do that work (being non-professional work) on their behalf, is entitled to be indemnified by the estate, up to the amount of commission to which they would otherwise be entitled, for the legal practitioner’s charges and disbursements in connection with that work.
87   Reduction of excessive commission under section 86A of P&A Act
(cf former Part 78, rule 75A)
Proceedings for an order under section 86A of the Probate and Administration Act 1898 are to be commenced by notice of motion in the parent proceedings.
88   Notices and orders under section 87 of P&A Act
(cf former Part 78, rule 72)
(1)  A notice or order under section 87 of the Probate and Administration Act 1898 may be served by sending it to the executor, administrator or trustee concerned at his or her address for service in relation to the parent proceedings.
(2)  If an order has been made under section 87 of the Probate and Administration Act 1898 requiring an executor, administrator or trustee to show cause, any application for an order extending the period referred to in section 87 (1) of that Act must be made on the day appointed for showing cause.
89   Order to file etc accounts
(cf former Part 78, rule 74)
Proceedings for an order that an executor, administrator or trustee of a deceased person’s estate do any of the following:
(a)  file an inventory,
(b)  verify and file an inventory,
(c)  file accounts,
(d)  verify and file accounts,
(e)  file and pass accounts,
(f)  verify, file and pass accounts,
(g)  pass accounts filed,
must be commenced by notice of motion in the parent proceedings.