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Estate Tornya, Deceased

Estate Tornya, Deceased

Case [2020] NSWSC 1230 10 September 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Estate Tornya, Deceased [2020] NSWSC 1230
Hearing dates: 11 August 2020
Decision date: 10 September 2020
Jurisdiction: Equity
Before: Lindsay J
Decision:
Orders to be made for preliminary discovery.

Catchwords:
PROCEDURE – Parties – Commencement of proceedings by beneficiary of deceased estate without a grant of probate or administration – Proceedings a nullity – Availability of remedial orders in case management of proceedings.
PROCEDURE – Parties – Claim on behalf of a deceased estate – Proper plaintiff is legal personal representative with grant of probate or administration – Availability of representative proceedings brought by beneficiary, with joinder of legal personal representative as a defendant.
AGENCY – Enduring power of attorney – Donee possessed of actual authority to benefit self – Whether donee accountable, as a fiduciary, to donor for self dealing transactions – Conveyancing Act 1919 NSW, Part 16

Legislation Cited:
Civil Procedure Act 2005 NSW
Conveyancing (Powers of Attorney) Amendment Act 1983 NSW
Conveyancing Act 1919 NSW
Powers of Attorney Act 2003 NSW
Powers of Attorney Regulation 2016 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109
Angelina Spina v Permanent Custodians Ltd [2008 NSWSC 561; 13 BPR 25,46, 463
Barlow Clowes International Ltd (In liq) v Eurotrust International Ltd [2006] 1 WLR 1476
Barnes v Addy (1874) LR 9 Ch App 244
Byers v Overton Investments Pty Ltd (2000) 106 FCR 268
Byers v Overton Investments Pty Ltd (2001) 109 FCR 554
C v W (No. 2) [2016] NSWSC 945
Canadian Aero Service Ltd v O’Malley (1973) 40 DLR (3d) 371
Carolyn Deigan as Executrix for the Estate of the Late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299
Chahwan v Euphoric Pty Ltd [2009] NSWSC 805; 73 ACSR 252
Chan v Zacharia (1984) 154 CLR 178
Clay v Clay (2001) 202 CLR 410
Clegg v Edmondson (1857) 8 de GM & G
Cohen v Cohen [2016] NSWSC 336 at [69]);
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694
Crossingham v Crossingham [2012] NSWSC 95
Darrington v Caldbeck (1990) 20 NSWLR 212
Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1
Dibbins v Dibbins [1896] 2 Ch 348
Downie v Langham [2017] NSWSC 113
Drew v Nunn (1879) 4 QBD 661
Estates Brooker-Pain and Soulos [2019] NSWSC 671
GEL Custodians Pty Ltd v The Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973
Gertsch v Roberts (1993) 35 NSWLR 631
Ghosn v Principle Focus Pty Ltd (No. 2) [2008] VSC 574
Hewitt v Gardiner (2009) NSWSC 705; 3 ASTLR 407
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Hughes BHT NSW Trustee and Guardian v Hughes [2011] NSWSC 729
Johnson v Buttress (1936) 56 CLR 113
Kelly v CA & L Bell Commodities Corporation Pty Limited (1989) 18 NSWLR 248
Lamru Pty Ltd v Kation Pty…

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 Estate Tornya, Deceased

Details

AGLC: Estate Tornya, Deceased [2020] NSWSC 1230
Case: [2020] NSWSC 1230
Decision Date: 10 September 2020

CaseChat Overview and Summary

The case involved a dispute over the estate of the deceased, Tornya. The proceedings were initiated by a beneficiary of the estate without the necessary grant of probate or administration. The defendant, who was the legal personal representative of the estate, sought to have the proceedings declared a nullity. The legal issues before the court included the validity of the proceedings commenced by the beneficiary and the availability of remedial orders in the case management of the proceedings. The court also had to consider whether the donee of an enduring power of attorney was accountable as a fiduciary to the donor for self-dealing transactions.

The court found that the proceedings were a nullity because they were brought by a party who was not the proper plaintiff, that is, the legal personal representative with a grant of probate or administration. The court noted that, in such cases, the proper plaintiff is the legal personal representative, and any claim should be brought by them. The court also considered whether representative proceedings brought by a beneficiary, with the joinder of the legal personal representative as a defendant, would be appropriate. Regarding the issue of accountability of the donee of an enduring power of attorney for self-dealing transactions, the court held that the donee possessed actual authority to benefit themselves and, therefore, was not accountable as a fiduciary to the donor.

The court held that the proceedings were a nullity and ordered that they be stayed until the legal personal representative was joined as a party. The court also noted that representative proceedings could be brought by the beneficiary, with the joinder of the legal personal representative as a defendant. The court further held that the donee of an enduring power of attorney was not accountable as a fiduciary to the donor for self-dealing transactions because they possessed actual authority to benefit themselves. The court did not make any orders regarding the substantive issues in the case, as the proceedings were stayed pending the appointment of the proper plaintiff.

Orders