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Carrington v Wallace

Carrington v Wallace

Case [2022] NSWSC 1078 16 August 2022

Executors and administrators

Restitutio in integrum

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Carrington v Wallace [2022] NSWSC 1078
Hearing dates: 9-10 May 2022
Date of orders: 16 August 2022
Decision date: 16 August 2022
Jurisdiction: Equity
Before: Ward P
Decision:
1.   Direct the parties to file proposed short minutes of order to reflect and give effect to these reasons, within 14 days, together with brief submissions (if those orders not be agreed) as to the form of orders sought.
2.   Direct the parties to file submissions on costs (and any submissions as to the question whether Matthew and Ashley should now be removed as executors and trustees of the deceased’s estate) within 14 days.
3.   Note that the final orders and costs orders will be made, if possible, on the papers but that if any of the parties requires a brief oral hearing this should be identified in the submissions filed pursuant to the above orders (with a short explanation as to why an oral hearing is necessary).

Catchwords:
SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for relief – Application for removal – Rule against self-dealing – Whether the sale of estate property to an executor of the will was authorised by the will – Whether the beneficiaries consented to the sale of the property – Whether the beneficiaries made an election in respect of the breach of trust by the executors
EQUITY — Equitable remedies — Rescission – Whether restitutio in integrum was possible

Legislation Cited:
Trustee Act 1925 (NSW), ss 81, 85
Trustee Act 1958 (Vic), s 63A
Uniform Civil Procedure Rules 2005 (NSW), Pts 7, 28

Cases Cited:
Acme Office Service Pty Ltd v Ludstom [2002] NSWSC 277
Adams v Alemite Lubrequip Pty Ltd [1994] NSWCA 1
Aequitas Ltd v Sparad No 100 Ltd [2001] NSWSC 14
Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Alati v Kruger (1955) 94 CLR 216
Allcard v Skinner (1887) 36 Ch D 145
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43
Application of Tatham [2021] NSWSC 540
Arakella v Paton (2004) 60 NSWLR 334; [2004] NSWSC 14
Archbold v Scully (1861) 9 HLC 360
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1
Brown v The NSW Trustee & Guardian [2011] NSWSC 1203
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Cachia v Westpac Financial Services Ltd (2000) 33 ACSR 572
Campbell v Walker (1800) 5 Ves 678
Canson Enterprises Ltd v Boughton & Co [1993] 3 SCR 534
Carrington v Wallace (No 2) [2020] NSWSC
Carrington v Wallace [2019] NSWSC 1301
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Cisera v Cisera Holdings Pty Ltd (2018) 98 NSWLR 747; [2018] NSWCA 286
Cisera v Cisera Holdings Pty Ltd [2017] NSWSC 960
Clay v Clay (2001) 202 CLR 410; [2001] HCA 9
Clough v London & North Western Railway Co…

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 Carrington v Wallace

Details

AGLC: Carrington v Wallace [2022] NSWSC 1078
Case: [2022] NSWSC 1078
Decision Date: 16 August 2022

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiffs, who were beneficiaries of an estate, to remove the executors of the will and for an order for the sale of property. The executors had sold estate property to one of the executors, which was alleged to breach the rule against self-dealing and constitute a breach of trust. The plaintiffs sought relief under the Succession Act and in equity. The defendants, the executors, argued that the sale was authorised by the will and that the beneficiaries had consented to the sale. The court was required to determine whether the executors' sale of the estate property was authorised by the will, whether the beneficiaries had consented to the sale, and whether the beneficiaries had made an election in respect of the breach of trust by the executors.

The court held that the executors' sale of the estate property was not authorised by the will, and therefore constituted a breach of trust. However, the court found that the beneficiaries had consented to the sale, and had therefore elected to affirm the trust. As a result, the plaintiffs were not entitled to relief. The court held that the beneficiaries had made an election to affirm the trust, and that restitutio in integrum was not possible. The court held that the plaintiffs were not entitled to the relief they sought.

The court dismissed the application and ordered that the plaintiffs pay the costs of the defendants. The court held that the executors had not acted in breach of their fiduciary duties, and that the beneficiaries had made an election to affirm the trust. The court held that the plaintiffs were not entitled to the relief they sought, and that the application should be dismissed. The court held that the defendants were entitled to their costs of the proceeding.

Orders