Clay v Clay (No 3) - [2004] TASSC 144

[2004] TASSC 144

CITATION: Clay v Clay (No 3) [2004] TASSC 144

PARTIES: CLAY, Marcus John Edward
CLAY, Curtis Patrick Robert

CLAY, Ann-Maree Louise
by their Litigation Guardian
JANEIRO, Elizabeth Maree
v
CLAY, Geoffrey Edward
CLAY, Vera Irmgard
PUBLIC TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M80/2001
DELIVERED ON:  7 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  25, 27 February, 20 March, 24 June, 1 September,

10, 11 24 November 8, 10 and 22 December 2003,
10 - 13 February, 24 April, 4 May, 29 June, 12 August,
27 October 2004
Written Submissions 1, 9 and 16 July 2003

JUDGMENT OF: Slicer J
CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicants:  N R Readett and K P Bradshaw
             Public Trustee:  B McManus
             Respondents:  J E Green
Solicitors:
             Applicants:  Clerk Walker & Stops
             Public Trustee:  Public Trust Office
             Respondents:  John Green

Judgment Number: [2004] TASSC 144
Number of Paragraphs: 32

Serial No 144/2004
File No M80/2001

MARCUS JOHN EDWARD CLAY, CURTIS PATRICK ROBERT CLAY and ANN-MAREE LOUISE CLAY by their Litigation Guardian ELIZABETH MAREE JANEIRO v GEOFFREY EDWARD CLAY and VERA IRMGARD CLAY,
PUBLIC TRUSTEE (No 3)

REASONS FOR JUDGMENT SLICER J

7 December 2004

The history and factual basis of these protracted proceedings have been set out in previous judgments [2003] TASSC 63 and [2004] TASSC 33. Following the publishing of the former, an order was made removing the respondents Clay as trustees of the estate and their replacement by the Public Trustee. Following the making of orders requiring the respondents to forward and verify accounts and their failure to comply, contempt proceedings were brought which, in turn, resulted in claims of procedural irregularity and denial of responsibility by Geoffrey Clay through illness or deterioration of mental capacity. Protraction of the proceedings has been due to the failure of the respondents to comply with the most elementary of their responsibilities, indifference, and obstructionism to requests for information and documentation and the difficulties of the solicitors for the applicants and the Public Trustee in searching for and retrieving such documentary material from banking and other institutions.

The questions referred to the Court by the applicants and the answers given by the Court in [2003] TASSC 63, were incomplete and were to await the forwarding of accounts by the respondents. Their failure to do so required further inquiry by the solicitors for the applicants and the Public Trustee and the taking of evidence.

Further evidence has not greatly advanced the ability of the Court to properly assess the value of the two items identified in, and remaining from, question 1. Further inquiry has not revealed the fund disposition of the assets as posited by question 6, other than dissipation, nor any current asset obtained through the estate money.

The evidence of Geoffrey and Vera Clay is not accepted as being accurate. Some of their answers given in affidavits or in response to examination might provide a basis for the making of findings only where the answers are against…

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 Clay v Clay (No 3)

Details

AGLC: Clay v Clay (No 3) [2004] TASSC 144
Case: [2004] TASSC 144
Decision Date: 7 December 2004

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Clay v Clay (No 3) involves a dispute among family members over the administration and distribution of the estate of Adam John Baynes Clay. The primary issue before the court was to determine the whereabouts of the estate's assets and liabilities, as well as to decide on the proper distribution of the estate according to the terms of the deceased's will. The applicants, Marcus John Edward Clay, Curtis Patrick Robert Clay, and Ann-Maree Louise Clay, sought answers to specific questions regarding the estate's assets, liabilities, and distribution.

The court found that the martial arts collection was more extensive than initially reported, and it was likely sold by the respondents, Geoffrey Edward Clay and Vera Irmgard Clay, for a sum greater than $2,000. The coin collection, however, was valued at $50,000, with a significant portion of the collection sold by the respondents for less than $40,000. The remaining items in the collection are to be released to the Trustee. The proceeds from insurance policies and the bank account were found to have been misappropriated, dissipated, or wrongfully retained by the respondents. The court calculated the capital due to the estate to be $450,515, without interest.

The court held Geoffrey Edward Clay and Vera Irmgard Clay accountable for their breach of trust, indifference to the interests of the beneficiaries, and maladministration of the estate. They were ordered to account for their conduct and expenditure of estate money. The court also allowed certain expenses associated with the care of the children to be paid by the estate, amounting to a total of $30,200 for maintenance and $11,701 for special items.

Orders