Coffey v Coffey

[2008] NSWSC 940

CITATION:	Coffey v Coffey [2008] NSWSC 940
HEARING DATE(S):	1 September 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
EX TEMPORE JUDGMENT DATE:	1 September 2008
DECISION:	See paragraph 7
CATCHWORDS:	PROBATE AND ADMINISTRATION - claim by one of two executors for grant - executor in default now wishing to obtain grant - matter stood over for appropriate orders
LEGISLATION CITED:	Probate and Administration Act 1898
CATEGORY:	Principal judgment
PARTIES:	Leslie Raymond Coffey (Plaintiff) Ronald Bruce Coffey (Defendant)
FILE NUMBER(S):	SC 2683 of 2008
COUNSEL:	Mr G Curtin (Plaintiff) Mr J M White (Defendant)
SOLICITORS:	Baker Deane & Nutt (Plaintiff) Kemp Strang (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

MONDAY 1 SEPTEMBER 2008

2683/08 LESLIE RAYMOND COFFEY V RONALD BRUCE COFFEY

JUDGMENT

1 HIS HONOUR: This is an application that the defendant be removed as an executor of his late mother Alma Coffey's Will. That relief is not really what is sought. What is sought is that a grant be made to the plaintiff as one of the executors in the Will, and that the defendant, the other executor named in the Will not receive a grant. The application is made under s 75 of what is now the Probate and Administration Act 1898.

2 In my view there is no doubt that the defendant has neglected to prove the Will. It is not necessary to determine the conflict in the evidence given by the defendant and by the solicitor Mr Wilson as I conclude there is clear evidence to determine that the defendant has taken no proper steps to obtain a grant and did not do so until this summons was served on him. I do not accept his evidence that he was waiting for Mr Wilson to tell him that the papers were ready to be signed.

3 The fact is, however, that the defendant now wishes to take a grant. Service of the summons brought about an inappropriate cross-claim which, I think, made it clear that at that stage he had no intention of doing anything other than making things difficult for the plaintiff. However I am satisfied that, now he seems to be better advised, he wishes to take a grant. He is one of the executors named in his mother's Will and until there is clear misbehaviour, in my view he is entitled to a grant.

4 I have had some difficulty with this matter. It is an unfortunate dispute between two brothers. It is not going to resolve the problems between them because the only asset in the estate is real estate of reasonable value and the defendant has, on the evidence, a lease of that real estate for a term of 30 years with a further option of 30 years at what I understand to be a total rental for the 30 years of $1. It, therefore, seems almost certain that his plaintiff brother will wish to take proceedings in some way to set aside that lease, but that is not a matter which is before the Court at the present time.

5 The next problem for the defendant is that although he filed a cross-claim, he did not seek a grant of probate and has not done so yet. He has said that he wishes to obtain a grant with his brother but that is really purposeless unless he puts on an application for such a grant. However, I think the Court is bound to accept that he will do so and as he has proffered an undertaking that he will not put difficulties in the way of his plaintiff brother if the plaintiff wishes to take some proceedings over the lease in which the defendant here would be the defendant with his plaintiff brother suing on behalf of the estate.

6 It is my view that the plaintiff should get his costs out of the estate. The question is whether the defendant should get his costs. I propose to make an order that the costs of both parties come out of the estate with the plaintiff to be paid in priority.

7 I stand the matter over to 22 September 2008 on the basis that following this judgment an order will be brought in under which a grant of probate will be made to both of the executors named in the Will. It will be referred to the Registrar to complete the grant of the costs of both parties to be paid out of the estate but those of the plaintiff in priority. I note that the defendant gives an undertaking to the Court that if the plaintiff in these proceedings wishes to bring proceedings on behalf of the estate against the defendant in these proceedings in respect of the lease which the plaintiff and his children have from the deceased over the estate property, then he will consent to the plaintiff bringing those proceedings on behalf of the estate.

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