Held, appeal dismissed. (1) Section 2 of the Colonial Probates Act 1892 nowhere stated that re-sealing the grant of probate was to have retrospective effect. Read naturally, the word “thereupon” signified just “upon that being done” and did not imply retrospectivity. Section 1 of the 1892 Act also used the word “thereupon” and there could be no question of “thereupon” producing retrospectivity in that context. Furthermore, it was hard to see why Parliament should have intended re-sealing under the 1892 Act to operate retrospectively when re-sealings as between England and either Scotland or Northern Ireland did not (para 30, 62, 63).

(2) The distinctions which the defendants sought to draw between a foreign executor and a domestic one appeared to be relatively insubstantial and there was no authority for the proposition that a foreign executor had no title or authority in relation to English assets unless and until probate was obtained in this jurisdiction. There was no sufficient reason for declining to follow, in the case of a foreign executor, the principle that an executor derived his title and authority from the will of his testator and not from any grant of probate. However, it remained to be considered whether that was to be applied in relation to all foreign executors or only where the law of the testator’s domicile, like that of England and Wales, treated an executor as acquiring title from the date of the testator’s death. The law of New South Wales, unlike that of England and Wales, did not consider an executor who had not obtained probate to have legal title to the testator’s estate. The question whether the claimant was to be considered to have acquired title to the deceased’s cause of action against the defendants as the executrix appointed under his will was properly characterised as one relating to the administration of a deceased person’s assets. The administration of a deceased person’s assets was governed wholly by the law of the country from which the personal representative derived his or her authority to collect them. It appeared that, notwithstanding that the claimant obtained a grant of probate in New South Wales, it was from the English jurisdiction that she derived her authority to collect assets here; after all, a foreign grant of representation was not without more recognised as having any force in England and Wales. That being so, the law of England and Wales was to be applied to the issue of whether the claimant acquired title to the deceased’s estate on his death and New South Wales law on the point was immaterial. On that footing, the claimant was to be regarded as having acquired title to the cause of action against the defendants on the deceased’s death. Accordingly, the claim had been properly issued (paras 40, 41, 47, 50–51, 61, 62, 63).

Per curiam. CPR r 3.10 is not applicable where the proceedings that have purportedly been brought are to be regarded as a nullity. CPR r 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings. The bringing of a claim on behalf of an estate by a person who, at the time, lacks standing to represent it is not a mere “error of procedure”, but renders the proceedings a nullity. In such a case, CPR r 3.10 has no application and the proceedings should be struck out (paras 59, 60, 62, 63).