Empson v Hagar - [2016] NSWSC 129

Supreme Court

New South Wales

Case Name:	Empson v Hagar
Medium Neutral Citation:	[2016] NSWSC 129
Hearing Date(s):	24 February 2016
Date of Orders:	24 February 2016
Decision Date:	24 February 2016
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Direct the parties to provide to my Associate, within 14 days, Short Minutes of Order that reflect these reasons for judgment. The orders may be made in Chambers without the need for any party to appear if the parties are in agreement in respect of the form of orders. Otherwise stand the matter over until 3:30 p.m. on 15 March 2016.
Catchwords:	SUCCESSION – Administration of estates - ongoing disputes between two executors – Competing claims brought following settlement of Probate proceedings – Payment of interest on money payable to the estate by one executor
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Murdocca v Murdocca (No 2) [2002] NSWSC 505 re Dawson; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd (1966) 84 WN (Pt 1) (NSW) 399; [1966] 2 NSWR 211
Category:	Procedural and other rulings
Parties:	Jennifer Bernadette Empson (Plaintiff) Mark Anthony Hagar (Defendant)
Representation:	Counsel: Mr T Morahan (Plaintiff) Mr M Klooster (Defendant) Solicitors: Lang Noonan Legal (Plaintiff) Kell Moore Pty Ltd (Defendant)
File Number(s):	2014/161573

JUDGMENT – EX TEMPORE (REVISED)

The Claims

HIS HONOUR: There are listed, for hearing today, two notices of motion. The first in time was filed on behalf of Jennifer Bernadette Empson (to whom I shall refer as “the Plaintiff”) on 2 June 2015, in which she sought an order that Mark Anthony Hagar (to whom I shall refer as “the Defendant”), “administer the estate of the late Francis Dudley Hagar [to whom I shall refer as “the deceased”] according to law” and an order that he pay to the estate $15,673.77.
How the sum claimed by the Plaintiff is calculated is set out in an annexure to the Plaintiff’s affidavit sworn 28 May 2015 as follows:

-	interest	$2,301.00
-	furniture and personal effects	$8,500.00
-	reimbursement of legal costs	$ 975.27
-	money retained	$2,500.00
-	Prices furniture	$1,397.50
$15,673.77

The second notice of motion was filed on behalf of the Defendant on 2 November 2015 in which he sought the following relief:
“1. Pursuant to Section 73 of the Civil Procedure Act 2005, the Court orders that the Respondent provide a Transmission Application and Discharge of Mortgage in registrable form within 24 hours of the date of this order or such other time as the Court regards as reasonable.
2. In the alternative to 1 above, the Registrar in Probate be appointed forthwith to execute the said Transmission Application and Discharge of Mortgage on behalf of the Respondent.
3. Further, or in the alternative, an order that the Grant of Probate of the Will dated 19 February 2013 of the late Francis Dudley Hagar granted to the Applicant and the Respondent on 22 October 2014 by the Court be revoked and…

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 Empson v Hagar

Details

AGLC: Empson v Hagar [2016] NSWSC 129
Case: [2016] NSWSC 129
Decision Date: 24 February 2016

CaseChat Overview and Summary

The case of Empson v Hagar involved two executors, the first being the plaintiff and the second being the defendant, in a dispute over the administration of an estate. The matter was heard in the Supreme Court of New South Wales, where the plaintiff sought payment of interest on money that was due to the estate from the defendant. The dispute arose following the settlement of probate proceedings, where the plaintiff had been appointed as an executor of the estate but had subsequently been removed by the defendant, who was appointed as the sole executor.

The primary legal issue before the court was whether the defendant was required to pay interest on the money due to the estate, which was held by the defendant in their capacity as executor. The court was required to determine the appropriate legal framework to apply in this situation, given that the interest was not explicitly provided for in the terms of the will or in any statutory provisions.

The court held that the defendant was indeed liable to pay interest on the money due to the estate. The reasoning was based on the principle that an executor holds estate funds in a fiduciary capacity, and as such, they are obliged to account for any income earned on those funds. The court found that the defendant, as the executor, had failed to do so, and as a result, they were liable to pay interest on the money due to the estate. The court emphasised the importance of executors acting in the best interests of the estate and ensuring that any income generated is properly accounted for and distributed to the beneficiaries.

The final orders of the court were that the defendant was required to pay interest on the money due to the estate, as well as any costs associated with the proceedings. The court also noted that the dispute between the two executors was ongoing and that further proceedings may be necessary to resolve the broader issues in the administration of the estate.

Orders