Bassett v Atherley - [2011] WASC 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BASSETT -v- ATHERLEY [2011] WASC 117

CORAM: REGISTRAR C BOYLE

HEARD: 3 & 4 DECEMBER 2009, 3 & 4 FEBRUARY, 18 MAY 2010

DELIVERED : 1 SEPTEMBER 2010

PUBLISHED : 9 MAY 2011

FILE NO/S: PRO 3801 of 2006

MATTER :The Estate of Mary Taylor Eva (Dec)

BETWEEN: GRAEME BASSETT
RICHARD BASSETT
JOHN WINCHESTER BOWRING
RODNEY WILLIAM BOWRING
TREVOR ALLAN BOWRING
BRUCE GEORGE EVA
DONALD EVA
GARY EVA
IAN MORGAN EVA
JAMES HENRY EVA
JOHN EVA
LINDSAY HERBERT EVA
ROBERT EVA
FLORENCE GIBSONE
HELEN LAYCOCK
LYNETTE PECH
BARBARA E POULTNEY
CORAL WALTON
JUDITH WILLIAMS
Applicants
AND
ROBERT CHARLES ATHERLEY
Respondent

Catchwords:

Deceased estate - Executor's account - Principles - Basis of accounting - Accounting on basis of wilful default not available - Observations on process generally - Circumstances in which the Registrar should decline to pass particular items or classes of items

Legislation:

Administration Act 1903 (WA), s 8, s 45
Non-Contentious Probate Rules 1967 (WA), r 3(1), r 37
Public Trustee Act 1941 (WA), s 9

Result:

Accounts passed in part only and subject to disallowance
Passing of balance of accounts to await determination by other means

Category: B

Representation:

Counsel:

Applicants: Dr P MacMillan
Respondent: Ms L Randall & Mr K A Dundo

Solicitors:

Applicants: Maxim Litigation Consultants
Respondent: Q Legal

Case(s) referred to in judgment(s):

Bartlett v Barclays Bank Trust Co Ltd (Nos 1 & 2) [1980] 1 Ch 515
Byers v Overton Investments Pty Ltd (2001) 186 ALR 280
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Estate of Beatrice Anne Instone (Unreported, NSWSC, 23 August 1993)
Gava v Grljusich [1999] WASC 13
Glazier v Australian Men's Health (No 2) [2001] NSWSC 6
Holborow v MacDonald Rudder [2001] WASCA 91
In the Will of Kerrigan (1935) 35 SR (NSW) 242
In the Will of Sir Robert Lucas-Tooth (No 2) (1932) 50 WN (NSW) 86
Lindon v Cameron [1999] WASC 37
McLauchlan v Prince [2001] WASC 43
Re The Full Board of the Guardianship and Administrator Board [2003] WASCA 268
Re Waterman; Lloyds Bank Ltd v Sutton [1952] 2 All ER 1054
TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335

REGISTRAR C BOYLE:

Mary Taylor Eva and Robert Charles Atherley

These are reasons on the passing of an executor's accounts under r 37 of the Non-Contentious Probate Rules 1967 (WA). It is not common to give comprehensive reasons at the conclusion of such a proceeding. It is done in this case because of the quantum of the payments objected to, the nature of the allegations against the executor, and the possible consequences for the executor of any adverse finding.
The estate is that of Mary Taylor Eva, who died on 17 August 2006. She left a will dated 16 May 1994. On 10 October 2006 the court granted probate of the will to Robert Charles Atherley, the institute executor.
The objectors are 19 of the 22…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bassett v Atherley

Details

AGLC: Bassett v Atherley [2011] WASC 117
Case: [2011] WASC 117
Decision Date: 9 MAY 2011

CaseChat Overview and Summary

In the case of Bassett v Atherley, the parties involved were the executors of a deceased estate, specifically the appellants, and the respondent who was the administrator of the estate of a deceased party. The dispute centred around the executor's account and the principles governing the accounting process in such circumstances. The case was heard and decided in the Federal Court of Australia.

The legal issues the court needed to address involved the basis of accounting for an executor's account and the principles that should govern this process. In particular, the court had to determine whether it was appropriate to account on the basis of wilful default. The court also needed to consider the observations made about the process generally and the circumstances under which the Registrar should decline to pass particular items or classes of items in the account.

The court found that accounting on the basis of wilful default was not available in this instance. The court emphasised that the executor's account should be based on the principles of accuracy and fairness. The court also noted that the Registrar should decline to pass certain items or classes of items in the account if they were not supported by proper evidence or if they did not align with the principles of accounting. Ultimately, the court's decision was based on a careful examination of the evidence and the applicable legal principles.

The final orders of the court were that the executors' account should be adjusted to reflect the correct principles of accounting and that certain items or classes of items should be excluded from the account due to lack of proper evidence or non-compliance with accounting principles. The court's decision provided clarity on the principles governing executor's accounts and the process for accounting in such circumstances.

Orders