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Gooley v Gooley

Gooley v Gooley

Case [2020] NSWSC 798 25 June 2020

Administrators Pendente Lite

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gooley v Gooley [2020] NSWSC 798
Hearing dates: 17 April and 6 May 2020
Date of orders: 25 June 2020
Decision date: 25 June 2020
Jurisdiction: Equity - Expedition List
Before: Williams J
Decision:
One of the defendant’s proposed nominees to be appointed as administrator pendente lite of the deceased’s estate unless the plaintiffs provide certain undertakings described in [141]. The disgorgement order requiring the plaintiffs to replenish certain funds alleged to have been misappropriated from the deceased’s estate is refused.

Catchwords:
SUCCESSION – executors and administrators – special and limited grants of administration – administrators pendente lite – Probate and Administration Act 1898 (NSW), s 73 – basis of appointment – whether the assets of deceased estate are in some jeopardy – where defendant beneficiary alleges that the plaintiffs have engaged in certain misconduct in their capacity as putative executors of deceased estate – whether plaintiffs have used estate funds to pay their personal legal costs associated with contested probate proceedings – where plaintiffs’ conduct and evidence creates uncertainty about whether funds used by plaintiffs are estate funds, despite orders of the Court requiring the plaintiffs to serve an affidavit clarifying the position – estate assets in some jeopardy due to hostility and suspicion between plaintiffs and defendant – administrator pendente lite to be appointed unless plaintiffs provides certain undertakings to remove jeopardy to the estate
EQUITY – injunctions – interlocutory injunctions – mandatory interlocutory injunctions – where defendant seeks interim order requiring the plaintiffs to replenish funds allegedly misappropriated from deceased estate for the purposes of paying the plaintiffs’ legal costs of proceedings – order sought as an incident of the Court’s power to award costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) as applied in the context of probate proceedings – interlocutory injunction refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Employers and Employees Act 1890 (Vic)
Probate and Administration Act 1898 (NSW), ss 33, 44 and 73
Succession Act 2006 (NSW), Ch 3
Uniform Civil Procedure Rules 2005 (NSW), r 7.10
Wrongs Act 1890 (Vic)

Cases Cited:
Bellew v Bellew (1865) 4 Sw & Tr 58; 164 ER 1437
Boylan v Farthing (1999) 86 FCR 120
Byers v Overton Investments Pty Limited (2001) 109 FCR 554
Chen v New South Wales (No 2) [2016] NSWCA 292
Deigan as executrix for the estate of the late James Boyd Lockrey v Fussell (2019) 19 BPR 39,853; [2019] NSWCA 299
Donald Campbell & Co v Pollak [1927] AC 732
Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370
Goodsall v Keen – Estate of Sydney Arthur Keen [2006] NSWSC 1143
Gray v Hart [2010] NSWSC 55
Greenway v McKay (1911) 12 CLR 30
Hempseed v Ward [2013] QSC 348
Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477
Horrell v Witts (1866) LR 1 P & D 103
Howling…

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 Gooley v Gooley

Details

AGLC: Gooley v Gooley [2020] NSWSC 798
Case: [2020] NSWSC 798
Decision Date: 25 June 2020

CaseChat Overview and Summary

In the case of Gooley v Gooley, the dispute involved the administration of the estate of a deceased person. The plaintiffs were putative executors of the deceased's estate, while the defendant was a beneficiary. The matter was before the Supreme Court of New South Wales. The central issue before the Court was whether the assets of the deceased estate were in jeopardy due to the plaintiffs' alleged misconduct in using estate funds to cover their personal legal costs in the probate proceedings. The defendant sought an administrator pendente lite to be appointed due to the hostility and suspicion between the parties, which threatened the estate's assets.

The Court had to determine if the plaintiffs' conduct and evidence created sufficient uncertainty about the use of estate funds, despite prior orders requiring the plaintiffs to clarify the situation. The Court found that the plaintiffs' conduct indeed caused uncertainty, leading to the conclusion that the estate's assets were in jeopardy. Therefore, the Court was inclined to appoint an administrator pendente lite unless the plaintiffs provided specific undertakings to remove this jeopardy. Additionally, the defendant sought an interlocutory injunction to compel the plaintiffs to replenish any funds allegedly misappropriated from the estate. However, the Court refused this request, stating that it was not an appropriate exercise of the Court's power to award costs in probate proceedings.

In summary, the Court found that the estate's assets were indeed in jeopardy due to the plaintiffs' conduct and the resulting uncertainty. An administrator pendente lite was to be appointed unless the plaintiffs provided certain undertakings. The defendant's request for an interlocutory injunction was denied, as it was not an appropriate application of the Court's power to award costs in probate proceedings.

Orders