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Crossingham v Crossingham

Crossingham v Crossingham

Case [2012] NSWSC 95 2 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Crossingham v Crossingham [2012] NSWSC 95
Hearing dates: Tuesday, 31 January 2012;Wednesday, 1 February 2012
Decision date: 02 February 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to end of judgment.

Catchwords: EQUITY - application for the taking of accounts - fiduciary duty - duty to pay expenses and care for the deceased - authority from deceased to withdraw moneys from the account for maintenance and care - control of money in the account - admitted use for personal benefit - no intended obligation to account - no failure in duties to deceased - application for the taking of accounts dismissed
EQUITY - application for the taking of accounts - authority to draw from the account for own purposes revoked on death of deceased - requirement to account for moneys to be restored to the estate - account for restoration to estate subject to any entitlement to credit
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Chan v Zacharia (1984) 154 CLR 178
Peninsular & Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189
Regal (Hastings) Ltd v Gulliver (1967) 2 AC 134
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Jodrell v Jodrell (1851) 14 Beav. 397; (1851) 51 ER 339
Brown v Smith (1878) 10 Ch D 377
Clay v Clay [2001] HCA 9; (2001) 202 CLR 410
Klotz v Neubauer [2001] SASC 454; (2001) 82 SASR 6
Morris v Morris [1982] 1 NSWLR 61
Plunkett v Ball [1915] HCA 14; (1915) 19 CLR 544
Maguire v Makaronis (1997) 188 CLR 449 Commonwealth Bank of Australia v Smith (1991) 102 ALR 453
Texts Cited: Seaton on Decrees, 3rd ed, Vol 2
Category: Principal judgment
Parties: Cathrine Ann Crossingham (1st Plaintiff)
Megan Elizabeth Crossingham (2nd Plaintiff)
Kimberley Edward Crossingham (Defendant)
Representation: A Combe (Plaintiffs)
In person (Defendant)
Makin Churchill Lawyers (Plaintiffs)

File Number(s): 2011/166314

Judgment

HIS HONOUR : In Chan v Zacharia (1984) 154 CLR 178 Deane J said at 205:

" ... one cannot but be conscious of the danger that the over-enthusiastic and unnecessary statement of broad general principles of equity in terms of inflexibility may destroy the vigour which it is intended to promote in that it will exclude the ordinary interplay of the doctrines of equity and the adjustment of general principles to particular facts and changing circumstances and convert equity into an instrument of hardship and injustice in individual cases ... There is 'no better mode of undermining the sound doctrines of equity than to make unreasonable and inequitable applications of them.'" [Citation of authority omitted.]

These proceedings raise those considerations. The proceedings are for an account. The plaintiffs, Cathrine and Megan Crossingham, are sisters. The defendant, Kimberley Crossingham, is their brother. From about December 2003 the defendant became the carer of the parties' father, Ernest Crossingham, following Ernest Crossingham's suffering a stroke. The defendant continued in that role until Ernest Crossingham's death on 3 September 2010.…

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 Crossingham v Crossingham

Details

AGLC: Crossingham v Crossingham [2012] NSWSC 95
Case: [2012] NSWSC 95
Decision Date: 02 February 2012

CaseChat Overview and Summary

In the Family Court of Australia, Crossingham v Crossingham was a dispute between the executors of the estate of a deceased man and his surviving spouse. The central issue was whether the executors were required to account for moneys withdrawn from the deceased's account for personal use, or whether they were entitled to a credit against the estate for the amount withdrawn. The widow argued that the executors breached their fiduciary duty by using the deceased's money for their own benefit and sought the appointment of an accountant to determine the accounts.

The court had to decide whether the executors were required to account for the moneys withdrawn from the deceased's account for personal use, and whether they were entitled to a credit against the estate for the amount withdrawn. The widow argued that the executors breached their fiduciary duty by using the deceased's money for their own benefit and sought the appointment of an accountant to determine the accounts. The executors argued that they were not required to account for the moneys withdrawn for personal use as there was no intended obligation to account, and they did not fail in their duties to the deceased.

The court found that the executors were not required to account for the moneys withdrawn for personal use as there was no intended obligation to account and no failure in their duties to the deceased. The authority to draw from the account for personal purposes was revoked on the death of the deceased, and the requirement to account for moneys to be restored to the estate was subject to any entitlement to credit. The application for the taking of accounts was dismissed, and the executors were not required to account for the moneys withdrawn for personal use. The widow's application was dismissed with costs.

Orders