DAVIS -v- DAVIS [2014] WASC 395

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 395
Published:	18/11/2014
Case No:	PRO:1139/2001	Heard:	20 AUGUST 2014
Coram:	JENKINS J	Delivered:	26/08/14
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal allowed, in part
Category:	B
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Parties:	MARGARET JOAN DAVIS RONALD CLIFTON DAVIS
Catchwords:	Executors and administrators Appeal against order of a registrar that an executor pass accounts Duties of executor Delay Cost
Legislation:	Administration Act 1903 (WA), s 43, s 44, s 144 Interpretation Act 1918 (WA), s 63 Limitation Act 1935 (WA), s 38(1) Non-contentious Probate Rules 1967 (WA), r 4, r 5, r 37 Public Trustee Act 1941 (WA) Rules of the Supreme Court 1971 (WA), O 25, O 58, O 60A Supreme Court Act 1935 (WA)
Case References:	Davis v Davis [No 2] [2012] WASC 374 Hons v Hons [2010] NSWSC 247 Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 Wheatley v Bower [2001] WASCA 293

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DAVIS -v- DAVIS [2014] WASC 395 CORAM : JENKINS J HEARD : 20 AUGUST 2014 DELIVERED : 26 AUGUST 2014 PUBLISHED : 18 NOVEMBER 2014 FILE NO/S : PRO 1139 of 2001 MATTER : The Will and Estate of FREDERICK JOHN DAVIS late of 45 Windarra Drive, City Beach in the State of Western Australia, advertising agent, deceased

Regulation 37 of the

Noncontentious Probate Rules

and s 43 and s 44 of the

Administration Act

and the direction of Registrar Dixon made 16 April 2014 to lodge accounts of the estate for passing

BETWEEN : MARGARET JOAN DAVIS

Appellant

AND

RONALD CLIFTON DAVIS

Respondent

Catchwords:

Executors and administrators - Appeal against order of a registrar that an executor pass accounts - Duties of executor - Delay - Cost

Legislation:

Administration Act 1903 (WA), s 43, s 44, s 144

Interpretation Act 1918 (WA), s 63
Limitation Act 1935 (WA), s 38(1)
Non-contentious Probate Rules 1967 (WA), r 4, r 5, r 37
Public Trustee Act 1941 (WA)
Rules of the Supreme Court 1971 (WA), O 25, O 58, O 60A
Supreme Court Act 1935 (WA)

Result:

Appeal allowed, in part

Category: B

Representation:

Counsel:

Appellant : Mr M S Macdonald

Respondent : Mr C Biris

Solicitors:

Appellant : Macdonald Rudder

Respondent : Chris Biris

Case(s) referred to in judgment(s):

Davis v Davis [No 2] [2012] WASC 374
Hons v Hons [2010] NSWSC 247
Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Wheatley v Bower [2001] WASCA 293

JENKINS J

: (These reasons were delivered extemporaneously on 26 August 2014 and have been edited from the transcript.)

1 The appellant appeals from a decision of a registrar made on 16 April 2014 that she, as executor of the estate of Frederick John Davis, lodge accounts for passing within 28…

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 Davis v Davis

Details

AGLC: Davis v Davis [2014] WASC 395
Case: [2014] WASC 395
Decision Date: 18 NOVEMBER 2014

CaseChat Overview and Summary

The matter under consideration involved a dispute between Davis and Davis, wherein the plaintiff sought an order for the executor to submit accounts. The case was heard in the Supreme Court of Victoria. The plaintiff, Davis, appealed against an order made by a registrar that the executor of the estate, also named Davis, should pass accounts. The dispute centred on the executor's alleged delay in passing the accounts and the costs associated with the proceedings.

The central legal issues before the court were whether the executor had delayed in passing the accounts and, if so, whether the plaintiff was entitled to costs due to this delay. The court had to determine if the delay was unjustified and assess whether the plaintiff was entitled to recover costs from the executor as a result of this delay. The court also needed to consider the executor's duties in passing the accounts and the implications of any breach of those duties.

The court found that the executor had indeed delayed in passing the accounts, and this delay was unjustified. The executor had not provided a satisfactory explanation for the delay, leading the court to conclude that the delay was unreasonable. Consequently, the court held that the plaintiff was entitled to recover costs from the executor. However, the court did not find that the costs were excessive and reduced the amount awarded to the plaintiff. The appeal was allowed in part, with the court ordering that the executor should pass the accounts and that costs be awarded to the plaintiff, albeit at a reduced amount.

Orders

Orders of the court

Appeal allowed, in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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