Crompton v -

[2007] NSWSC 167

CITATION:	Crompton v - [2007] NSWSC 167
HEARING DATE(S):	26/02/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	26 February 2007
DECISION:	Application dismissed.
CATCHWORDS:	SUCCESSION - Executors and Administrators - Proceedings by executor or administrator - Advice under the Trustee Act 1925, s 63 - Whether justified in completing a sale of property at $1.55 million - Acrimonious proceedings on foot - Whether court should give advice on a commercial decision thereby exonerating the administrator
LEGISLATION CITED:	Trustee Act 1925
PARTIES:	David Mark Crompton - Plaintiff
FILE NUMBER(S):	SC 2601/05
COUNSEL:	Mr P Walsh
SOLICITORS:	Church and Grace Solicitors and Attorneys

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 26 FEBRUARY 2007

2601/05 DAVID MARK CROMPTON v -

EX TEMPORE JUDGMENT

1 An application is brought to the court under the Trustee Act 1925, s 63 for its opinion, advice and direction as to whether the applicant is justified in completing a sale of real property for $1.55 million.

2 The statement of facts indicates that the applicant was appointed a special administrator of the property in question, whose powers were to lease and preserve the property, to invest the proceeds of its leasing and incidental powers. Those powers were extended, subsequently, to authorise the sale of the property and the investment of the proceeds of sale, and to pay all the expenses incurred in respect of the sale.

3 Advice was obtained from a registered valuer that the value of the property was between $1.55 million and $1.65 million. Real estate advice was also sought. The property was the subject of an offer to purchase at $1.55 million which the administrator, subject to conditions, accepted. That sale did not eventuate. The purchase did not proceed with it.

4 The advice of the court is sought in the context of acrimonious proceedings. The sister of the deceased opposes a grant of probate upon the basis of an alleged lack of testamentary capacity.

5 In my view, this is not the sort of matter in which the court ought to give advice thereby exonerating the administrator if proceedings are brought against him for completing the sale of the property for $1.55 million.

6 It was submitted that the situation is no different from one in which an application is made for advice that a trustee would be justified in settling contentious proceedings. But there is a material difference. In those situations the parties have had the opportunity of airing before the court their rival positions.

7 The advice that is here sought would effectively prevent any proceeding being brought against the administrator arising from his conduct with respect to the sale of the property. Commercial decisions must be made by trustees as well as commercial decisions made by other members of the public. It is for the administrator to make and stand by his commercial decision and for the court to adjudicate upon that decision should it subsequently be called into dispute.

8 In the circumstances, I dismiss the notice of motion.

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