Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206
Hearing dates:
20 – 24 February 2023
Date of orders:
15 March 2023
Decision date:
15 March 2023
Jurisdiction:
Equity
Before:
Meek J
Decision:
Claims regarding default made out. Claim for commission dismissed.
Catchwords:
SUCCESSION — Executors and administrators —Deceased died in 2014 leaving a substantial estate in excess of $23M the overwhelming majority of which was comprised of 12 pieces of real property 7 of which were specifically gifted and 5 of which fell into residue — The plaintiffs (3 of 6 children of the deceased) complained that the defendant executor (another child) engaged in conduct which has the effect of delaying administration of the estate and in particular complained of failures to promptly sell or rent or otherwise transfer assets of the estate constituting wilful default and devastavit — One of the plaintiffs commenced 3 proceedings including these proceedings against the estate. The first two proceedings (rectification/family provision and revocation of grant of probate) were previously dismissed — The defendant claimed commission asserting any delays are at least explained by addressing the prior proceedings
EVIDENCE — Application of “rule” in Jones v Dunkel
EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 to answering questions — Objection may be taken by a witness to evidence on a particular topic as distinct from evidence on a particular question
SUCCESSION — Executors and administrators — devastavit and wilful default — Assessment of claims of devastavit and wilful default must be considered in light of the terms of the deceased’s Will and in particular whether the deceased has by provisions of the Will in the powers given to the executor modified fiduciary duties
SUCCESSION — Executors and administrators — Exercise of powers under Will — Discussion of discretionary considerations
SUCCESSION — Executors and administrators —devastavit and wilful default — Discussion of principles regarding wilful default
SUCCESSION — Executors and administrators —Even if an executor is not an initial purchaser, as long as a contract remains executory and the executor has power either to enforce it, rescind it or alter it, the executor is under the general law precluded from repurchasing the property from his own purchaser, or purchasing the property on his own account
TAXES AND DUTIES — Definition of “tax agent service” in Tax Agent Services Act 2009 (Cth) — “tax agent service” includes advising an entity about liabilities or obligations that arise or could arise under a taxation law or representing an entity in their dealings with the Commissioner
TAXES AND DUTIES — Whether work carried out by an accountant or registered tax agent in relation to the
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.
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AGLC
Galea v Camilleri [2023] NSWSC 206
Case
[2023] NSWSC 206
Decision Date
CaseChat Overview and Summary
The case of Galea v Camilleri involved a dispute over the administration of the estate of a deceased individual who left a substantial estate exceeding $23 million, predominantly consisting of 12 pieces of real property. The plaintiffs, three of the deceased's six children, alleged that the defendant executor, another child, engaged in conduct that delayed the administration of the estate. Specifically, the plaintiffs claimed that the executor failed to promptly sell, rent, or otherwise transfer the estate's assets, actions which they argued constituted wilful default and devastavit. The defendant, in response, claimed that any delays were at least partially explained by the need to address prior proceedings initiated by one of the plaintiffs, including claims for rectification, family provision, and revocation of the grant of probate, which had been dismissed. The case was heard in a court that dealt with succession, executors, and administrators.
The court was required to address several legal issues, including the application of the rule in Jones v Dunkel, the obligations under the Evidence Act 1995 (NSW) regarding self-incrimination, and the assessment of claims of devastavit and wilful default in the context of the deceased's Will. The court also needed to consider the definition of "tax agent service" under the Tax Agent Services Act 2009 (Cth) and whether work carried out by an accountant or registered tax agent in relation to the Duties Act 1997 (NSW) constituted impermissible legal practice. Furthermore, the court had to determine the principles and factors relevant to assessing the quantum of commission for the executor and the standard of reasonableness in such assessments.
The court, in its reasoning, held that the executor's conduct could be considered in the context of the deceased's Will, which modified the executor's fiduciary duties. The court also addressed the evidentiary issues, noting the obligations under the Evidence Act 1995 (NSW) and the mode of appearance at the hearing. Regarding the tax agent service, the court found that without the agent being joined as a party, procedural fairness precluded a finding on whether the agent contravened the Legal Profession Uniform Law (NSW). The court applied the principles from Juul v Northey [2010] NSWCA 211 in relation to notice of judgment affecting non-party interests. Ultimately, the court assessed the executor's claim for commission, considering guideline rates and the standard of reasonableness.
The final orders of the court were not detailed in the extract provided, but they would likely address the claims of devastavit and wilful default, the assessment of the executor's commission, and any other relevant issues arising from the proceedings.