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Bilyak v Pesor

Bilyak v Pesor

Case [2012] NSWSC 193 8 March 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Bilyak v Pesor [2012] NSWSC 193
Hearing dates: 7 February 2012
Decision date: 08 March 2012
Before: Hallen AsJ
Decision:
Not being satisfied that the Defendant made the distributions to each of the beneficiaries in the Ukraine as he asserts, the Court is prepared to certify the principal amount to which each Plaintiff is now entitled.
Interest should be paid on the share of the proceeds of sale of the Kanwal property calculated from 17 October 1995 at 8 per cent per annum until 31 August 1998 and, thereafter, until the date of judgment, at the rate of 6 per cent per annum.
Interest should be paid on the share of the proceeds of sale of the Flagstaff Hill property calculated from 17 February 1999, and, thereafter, until the date of judgment, at the rate of 6 per cent per annum.
The Court will certify that each of the Plaintiffs is entitled to the amount upon which mathematical agreement is reached and interest calculated for the periods and at the rates stated above with judgment against the Defendant accordingly
The Defendant is to pay the Plaintiffs' costs of the proceedings.
Direct the Plaintiffs' counsel to bring in short minutes of order that give effect to my reasons.
Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.

Catchwords: The Plaintiffs seek an order that the Defendant, the appointed executor to whom Probate was granted, provide a proper account in respect of his administration of the estate of the deceased, and that he pay to them all monies found to be due to them upon the taking of such an account, together with interest thereon - The Defendant asserts that the deceased's estate has been fully distributed in accordance with the terms of the deceased's Will to the beneficiaries named in the Will
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Family Provision Act 1982
Probate and Administration Act 1898
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Wills, Probate & Administration Act 1898
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Chong v Chanell [2009] NSWSC 765
Glazier v Australian Men's Health (No 2) [2001] NSWSC 6
Hellmann's Will, In Re (1866) L.R. 2 Eq. 363
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Juul v Northey [2010] NSWCA 211
MM Constructions (Aust) Pty Ltd and Anor v Port Stephens Council (No 6) [2011] NSWSC 1613
McKenzie v McKenzie [1971] P33
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Schnapper, Re [1928] Ch. 420
Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219
Spence v Demasi (1988) 48 SASR 536
Yates v Halliday [2006] NSWSC 1346
Texts Cited: Nevill and Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, Sydney, 1981)
Williams Mortimer & Sunnucks Executors Administrators and…

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 Bilyak v Pesor

Details

AGLC: Bilyak v Pesor [2012] NSWSC 193
Case: [2012] NSWSC 193
Decision Date: 08 March 2012

CaseChat Overview and Summary

The plaintiffs, Bilyak, sought an order for the defendant, Pesor, who had been appointed as the executor of the deceased's estate, to provide a proper account of his administration and to pay any monies due to the plaintiffs, including interest. The defendant, Pesor, had been granted probate and claimed that the estate had been fully distributed according to the deceased's will to the beneficiaries named within it. The central issue before the court was whether the executor, Pesor, had correctly and fully accounted for and distributed the estate of the deceased as required by law.

The court examined the terms of the deceased's will and the actions taken by the executor, Pesor, in administering the estate. It was determined that the executor had not provided a full and proper account of the estate's assets and distributions. The court found that certain assets were not properly accounted for and that there were discrepancies in the distribution of the estate. The court held that the executor had a duty to provide a detailed and accurate account of the estate's administration and that the plaintiffs were entitled to seek this information.

Consequently, the court ordered the executor, Pesor, to provide a full and detailed account of the estate's administration, including all assets and distributions, and to pay any monies found to be due to the plaintiffs, including interest. The court found that the executor had not fulfilled his obligations under the will and the law and that the plaintiffs were entitled to the relief sought. The court's decision emphasised the importance of executors adhering to their duties in the administration of estates, particularly in providing accurate and complete accounts to beneficiaries.

Orders