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Chick & Anor v Grosfeld (no 3)

Chick & Anor v Grosfeld (no 3)

Case [2012] NSWSC 1536 13 December 2012

Entitlement of Executor to Remuneration

Construction of Will Clause

Professional Rates

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536
Hearing dates: 31 October 2012
Decision date: 13 December 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [42] of judgment.

Catchwords: WILLS, PROBATE AND ADMINISTRATION - entitlement of executor to remuneration - construction of clause in will providing for entitlement to charge - executor an accountant - executor only entitled to charge professional rates for work that a non-accountant executor would have been justified in retaining an accountant to perform - beneficiaries not estopped from denying executor's entitlement to charge fees otherwise than in accordance with will
Legislation Cited: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Cases Cited: Chick v Grosfeld [2012] NSWSC 1166
Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 694
Macartney v Macartney (1909) 1 VLR 183
Swanson v Emmerton [1909] 1 VLR 387
In the Estate of Purton (1935) 53 WN 149
In The Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported; BC9303622)
In Re Craig (1952) 52 SR (NSW) 265
Broughton v Broughton (1854) 5 De G, M and G 160 at 164; 43 ER 831
In Re Doody; Fisher v Doody [1893] 1 Ch 129
In Re Gates; Arnold v Gates [1933] Ch 913
In the Will of Kerrigan (1935) 35 SR (NSW) 242
Sacks v Gridiger (1990) 22 NSWLR 502
Clarkson v Robinson [1900] 2 Ch 722 and Re Chalinder; Chalinder v Herrington [1907] 1 Ch 58
Re Chapple; Newton v Chapman (1884) 27 Ch D 584
Swanson v Emmerton [1909] VLR 387
In the Will of Sheppard [1972] 2 NSWLR 714
In the Will of Shannon [1977] 1 NSWLR 210
Re Ames; Ames v Taylor (1883) 25 Ch D 72
Re Fish; Bennett v Bennett [1893] 2 Ch 413
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Commonwealth v Verwayen (1990) 170 CLR 394
Texts Cited: Jacobs Law of Trusts in Australia, 7th ed
Category: Separate question
Parties: Murray Chick (1st Plaintiff)
Kimberley Runia (2nd Plaintiff)
Johannes Theodorus Grosfeld (Defendant)
Representation: Counsel:
M McAuley (Plaintiffs)
A Lakeman (Defendant)
Solicitors:
McAuley Hawach (Plaintiffs)
Angela Anthony & Associates (Defendant)

File Number(s): 2010/258874

Judgment

HIS HONOUR: In my reasons for judgment of 25 September 2012 (Chick v Grosfeld [2012] NSWSC 1166) I asked for further submissions on the construction of clause 18 of the will. For convenience, I again set out the terms of clause 18. It provided:

"18. Entitlement to Charge

Any executor or trustee under this Will being:

a) a legal practitioner;

b) an accountant who is a member of:

i) the Institute of Chartered Accountants in Australia;

ii) CPA Australia;

iii) the National Institute of Accountants; or

iv) the National Tax and Accountants' Association Limited;

c) a financial advisor who is authorised by a person or entity who holds an Australian Financial Services ('AFS') licence, or who themselves hold an AFS licence, or a…

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 Chick & Anor v Grosfeld (no 3)

Details

AGLC: Chick & Anor v Grosfeld (no 3) [2012] NSWSC 1536
Case: [2012] NSWSC 1536
Decision Date: 13 December 2012

CaseChat Overview and Summary

In the matter of Chick and Anor v Grosfeld, the parties involved were the executors of an estate, Chick and another, and the beneficiaries of the estate, Grosfeld. The dispute centred on the entitlement of the executors to remuneration for their services. The High Court of Australia was the tribunal that heard and decided this case.

The primary legal issues before the court were the interpretation of a clause in the will that outlined the executors' entitlement to remuneration, and whether the beneficiaries could be estopped from denying the executor's entitlement to charge fees otherwise than in accordance with the will. Specifically, the court needed to determine whether the executor, who was an accountant, was entitled to charge professional rates for the work that a non-accountant executor would have been justified in retaining an accountant to perform.

The court held that the executor was not entitled to charge professional rates for the work that a non-accountant executor would have been justified in retaining an accountant to perform. The court found that the clause in the will was clear and unambiguous, and provided that the executor was only entitled to charge professional rates for work that a non-accountant executor would not have been justified in retaining an accountant to perform. The court also held that the beneficiaries were not estopped from denying the executor's entitlement to charge fees otherwise than in accordance with the will. The court found that the beneficiaries had not acted in a way that would lead the executor to believe that they would not object to the executor charging professional rates, and that the beneficiaries had not relied on any representation or promise made by the executor in relation to the remuneration.

The court's decision provides important guidance for executors and beneficiaries in relation to the interpretation of wills and the entitlement of executors to remuneration. It highlights the importance of clear and unambiguous language in wills, and the need for executors to act in accordance with the terms of the will. The decision also reinforces the principle that beneficiaries cannot be estopped from enforcing the terms of a will, even if they have acted in a way that may have led the executor to believe that they would not object to the executor's conduct.

Orders