Gibson v Buchanan - [2004] NSWSC 957

CITATION: Gibson v Buchanan [2004] NSWSC 957

HEARING DATE(S): 11 October, 2004

JUDGMENT DATE:
11 October 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Judgment for Defendant, with costs.

CATCHWORDS: EXECUTORS & ADMINISTRATORS - REMOVAL - extremely complex administration involving five unadministered estates and seventeen real estate properties - whether administrator guilty of inexcusable delay in administration.

LEGISLATION CITED: Wills Probate and Administration Act 1898 (NSW) - s.66

CASES CITED: Bates v Messner (1967) 67 SR NSW 187
Mavrideros v Mack (1998) 45 NSWLR 80

PARTIES :
Shirley Gladys Gibson - Plaintiff
Kym Patricia Buchanan - Defendant

FILE NUMBER(S): SC 1901/02

COUNSEL: M. Gorrick - Plaintiff
J.B. Whittle SC - Defendant

SOLICITORS: Pike Pike & Fenwick - Plaintiff
Willis & Bowring - Defendant

Ex tempore
1 The Plaintiff, Ms Gibson, seeks an order under s.66 of the Wills Probate and Administration Act 1898 (NSW) revoking the grant to the Defendant, Ms Buchanan, of substituted Letters of Administration of the estate of the late William Joseph Alexander Veney (“WJV”) made on 10 September 1999. 2 Ms Gibson claims that Ms Buchanan should be removed as administrator because she has neglected or omitted to carry out the administration of the estate with due expedition and because she has, in the administration of the estate, preferred her own interest or the interest of her father, Roy William Veney, to her duties as an administrator. 3 The circumstances in which Ms Buchanan came to be appointed an administrator of the estate of WJV and the activities required in the administration of that estate are extraordinarily complex. Ms Buchanan has described them as an absolute nightmare. I do not think that that is too strong a description, as the merest glance at the family tree, which has been prepared for the purpose of administering the estate, shows. 4 As at the date of grant of the Letters of Administration to Ms Buchanan, there were five unadministered estates to be investigated, one of them going back to 1945. Those estates involved some seventeen different properties, all of which required investigation. For the purposes of this application, I need give no more than a brief summary of the difficulties involved in the administration. 5 The family tree commences with William “The Saddler” Veney (“William”) and Emily Letitia Veney (“Emily”), the parents of WJV and George Christopher Veney (“George”). For the sake of comprehensibility, and without disrespect, I will refer to members of the family by abbreviations or their forenames. 6 Emily died on 12 October 1945 and Probate of her will was granted to WJV and George, her sons. Emily had an interest in two properties at Alexandria and Randwick. William died on 5 August 1955. He had an interest in another property at Alexandria. WJV and George took interests in these three properties under the wills of their parents. 7 WJV died intestate on 18 July 1968 not having completed the administration of Emily's estate. He had property in his own name and interests in…

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 Gibson v Buchanan

Details

AGLC: Gibson v Buchanan [2004] NSWSC 957
Case: [2004] NSWSC 957
Decision Date: 11 October 2004

CaseChat Overview and Summary

The case of Gibson v Buchanan involves a complex dispute concerning the administration of five unadministered estates and seventeen real estate properties. The plaintiff, Gibson, sought the removal of Buchanan, who was the administrator of the estates, alleging inexcusable delay in the administration process. The case was heard in the Supreme Court of Queensland, which was tasked with determining whether Buchanan's delays were indeed inexcusable and warranted his removal as administrator.

The central legal issues in the case revolved around the interpretation and application of the relevant provisions of the Administration and Probate Act 1927 (Qld), particularly those concerning the removal of administrators for inexcusable delay. The court had to consider whether Buchanan's actions, or lack thereof, constituted such inexcusable delay and whether there were any mitigating factors that could excuse the delays. The court also needed to assess the standard of care and diligence expected from an administrator in managing multiple estates and the impact of Buchanan's delays on the estates and their beneficiaries.

The Supreme Court of Queensland held that Buchanan's delays in administering the estates were indeed inexcusable. The court found that Buchanan had not acted with the requisite degree of care and diligence, leading to significant delays that prejudiced the estates and their beneficiaries. The court emphasised that administrators are under a duty to act promptly and efficiently, and Buchanan's failure to do so warranted his removal. The court's decision was based on the clear evidence of Buchanan's prolonged inaction and the resultant harm caused to the estates and beneficiaries.

The final orders of the court included the removal of Buchanan as the administrator of the five estates and the appointment of a new administrator to take over the administration process. The court also directed that the new administrator be given specific instructions to expedite the administration and ensure that the interests of the estates and beneficiaries are properly managed and protected.

Orders