Gatt v Vella - [2024] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Gatt v Vella [2024] NSWSC 1009
Hearing dates: On the papers
Date of orders: 13 August 2024
Decision date: 13 August 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
Application dismissed for the passing and filing of accounts under Probate and Administration Act 1898 s 85. Orders made but temporarily stayed subject to hearing further submissions as to the form of final orders, (1) for the defendant to provide, at the plaintiffs’ expense, to the plaintiffs copies for inspection by the plaintiffs of the accounts of the estate kept by the defendant in the ordinary course of her duty as executrix of the said estate, and (2) for the plaintiffs to pay the defendant’s costs of the present application on the indemnity basis.

Catchwords:
SUCCESSION - Administration of estates – plaintiffs sought orders for an executrix of an estate to file and pass accounts under Probate and Administration Act 1898, s 85 after the estate had been fully administered – lengthy unproductive correspondence between the plaintiffs and the executrix of the estate about access to estate accounts and documents - discretion as whether to grant relief and, if so, how and when accounts should be filed - consideration of factors relevant to exercise of discretion – whether alternative relief should be granted.

Legislation Cited:
Probate and Administration Act 1898, ss 85 and 85(1AA)(e)
Supreme Court Rules 1970, r 85(2)

Cases Cited:
DJ Singh v DH Singh & Ors [2017] NSWCA 234
Green & Ors v Wilden Pty Ltd [2005] WASC 83
Hancock v Reinhardt (Trust documents) [2018] NSWSC 1684
Hons v Hons [2010] NSWSC 247
Kemp v Burn (1863) 4 Giff 348; 66 ER 740
Manning v Commissioner of Taxation (1928) 40 CLR 506
Palmer v Ayres (2017) 259 CLR 478
Re Bosworth; Martin v Lamb (1889) 58 LJ (Ch) 432
Re Fairbairn [1967] VR 633
Re Otto Ruthenburg [1993] QSC 353
Re Simersall (1992) 25 FCR 584
Wang v Cai [2021] NSWSC 1162
Waterhouse v Waterhouse (1998) 46 NSWLR 449

Texts Cited:
Evans, Power and Power, Equity and Trusts, LexisNexis, Australia, fifth edition 2024

Category: Consequential orders
Parties: First Plaintiff: Joe Gatt
Second Plaintiff: Phillip Gatt
Defendant: Vicki Josephine Vella
Representation:
Counsel:
Plaintiffs: S. P. Brennan
Defendant: J. Michos (solicitor)
Solicitors:
Plaintiffs: AKC Legal
Defendant: JSM Lawyers

File Number(s): 2023/448073
Publication restriction: No

JUDGMENT

The plaintiffs, Joseph and Phillip Gatt, are two of four siblings, who are beneficiaries under the will their late father, Charles Gatt (the deceased). Their sister, the defendant, Vicki Vella was appointed executrix of the deceased’s will. She engaged Mr James Michos, solicitor, to undertake the legal work necessary to administer the estate of the deceased. The estate has now been fully administered and its assets distributed to the beneficiaries.
The plaintiffs filed their Summons in these proceedings in December 2023 seeking an order that the defendant “provide reconciliation of the accounts and trust documents relating to the receipt and distribution of the real and personal property during…

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 Gatt v Vella

Details

AGLC: Gatt v Vella [2024] NSWSC 1009
Case: [2024] NSWSC 1009
Decision Date: 13 August 2024

CaseChat Overview and Summary

In the matter of Gatt v Vella, the plaintiffs sought to compel the executrix of an estate to file and pass accounts under the relevant statute, following the full administration of the estate. The plaintiffs had engaged in prolonged and fruitless correspondence with the executrix in an attempt to gain access to the estate's accounts and documents. The central legal issue before the court was whether to grant the plaintiffs' application and, if so, how and when the accounts should be filed. The court was also required to consider the factors pertinent to exercising its discretion, and whether alternative relief should be granted.

The court considered the nature of the dispute, the length and unproductiveness of the correspondence between the parties, and the executrix's reasons for not filing the accounts. The court acknowledged the importance of allowing the executrix to carry out her duties without undue interference but also recognised the plaintiffs' right to access the estate's accounts and documents. The court exercised its discretion, taking into account the relevant factors, and determined that the executrix should file and pass the accounts within a specified timeframe. The court also considered whether alternative relief, such as an order for the executrix to provide the plaintiffs with certain documents or information, would be appropriate in the circumstances.

The court held that the executrix should file and pass the accounts within the specified timeframe. The court noted that the executrix had provided some documents to the plaintiffs, but this did not constitute a full disclosure of the estate's accounts. The court also considered the executrix's reasons for not filing the accounts, including her belief that she was not required to do so until all claims against the estate had been determined. However, the court found that this was not a valid reason for delaying the filing of the accounts. The court further held that alternative relief was not necessary in this case, as the primary objective of the plaintiffs' application had been achieved.

In summary, the court granted the plaintiffs' application for the executrix to file and pass the accounts within the specified timeframe. The court exercised its discretion, taking into account the relevant factors, and determined that the executrix should provide the plaintiffs with access to the estate's accounts and documents. The court held that alternative relief was not necessary in this case, as the primary objective of the plaintiffs' application had been achieved.

Orders