Gorman v Gorman - [2004] NSWSC 741

CITATION: Gorman v Gorman [2004] NSWSC 741

HEARING DATE(S): 05/04/04, 06/04/04, 07/04/04
Written submissions ordered
Judgment reserved: 28/04/04

JUDGMENT DATE:
17 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Appeals of first and second defendants against decision of Acting Master allowed. Cross-appeal of plaintiff dismissed. Costs orders of Acting Master set aside. In lieu, order that first and second defendants as executors have costs out of estate; and no order as to costs of plaintiff

CATCHWORDS: PROCEDURE - costs - appeal from Acting Master where no substantive orders were made and the only matter in contention was costs - defendants executors to whom Part 52A rule 42 applied - no evidence to warrant Acting Master's findings of unreasonable conduct

LEGISLATION CITED: Supreme Court Act 1970 ss.75A, 76(1)
Supreme Court Rules Part 52A rule 42, Part 60 rule 10

CASES CITED: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647
House v The King (1936) 55 CLR 499
Re Minister for Immigaration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Ross v Internet Wines Pty Ltd [2004] NSWCA 195

PARTIES :
John Justin Gorman - Plaintiff
John Patrick Gorman - First Defendant
Lisa Bernadette McGuire - Second Defendant

FILE NUMBER(S): SC 2862/00

COUNSEL: Mr M S Willmott SC - Plaintiff
Mr T G R Parker - First Defendant
Mr C F Hodgson - Second Defendant

SOLICITORS: Turnbull Hill Lawyers - Plaintiff
Maurice Blackburn Cashman Lawyers - First Defendant
Nagle & McGuire - Second Defendant

LOWER COURTJURISDICTION: Supreme Court (Master)

LOWER COURT FILE NUMBER(S): 2862/00

LOWER COURT
JUDICIAL OFFICER : Acting Master Berecry

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 17 AUGUST 2004

2862/00 – JOHN JUSTIN GORMAN v JOHN PATRICK GORMAN & ANOR

JUDGMENT

Background

1 On 5, 6 and 7 April 2004, I heard two appeals and a cross-appeal in respect of a decision given by Acting Master Berecry on 25 November 2002. It is necessary to recount some background.

2 Jeanette Mary Gorman died on 8 or 9 February 1999. She was survived by her husband, John Justin Gorman (known as “Justin”), and four children, John Patrick Gorman (known as “John”), Mary Katharine Salvat, Andrena Leonie Gorman and Lisa Bernadette McGuire. For ease of reference, and having regard to the roles they later came to play, it is convenient to refer to the husband, Justin Gorman, as “the plaintiff”, the son, John Gorman, as “the first defendant” and the daughter, Lisa McGuire, as “the second defendant”.

3 Two of the children, being the first defendant and the second defendant, were named as executors in the deceased’s will dated 2 July 1993. Probate of that will and of a codicil dated 28 July 1998 was granted to them on 29 December 1999. The effect of the will and codicil, briefly stated, was to grant to the plaintiff (husband) a right to occupy the residence on Farm…

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 Gorman v Gorman

Details

AGLC: Gorman v Gorman [2004] NSWSC 741
Case: [2004] NSWSC 741
Decision Date: 17 August 2004

CaseChat Overview and Summary

The appeal arose out of a family dispute concerning the estate of a deceased individual, with the defendants acting as the executors of the estate. The plaintiffs, who were relatives of the deceased, challenged the executors' handling of the estate, specifically focusing on the allocation of costs. The case was heard before an Acting Master, who made findings that the executors' conduct was unreasonable, leading to the plaintiffs being awarded costs. The executors subsequently appealed the decision on the grounds that the Acting Master's findings were not supported by the evidence.

The primary legal issue before the court was whether the Acting Master was correct in finding that the executors' conduct was unreasonable. This involved examining the evidence presented and determining whether it justified the Acting Master's conclusion. The court needed to consider the applicable legal principles and the standard of proof required for such findings. Additionally, the court had to assess whether the procedural steps taken by the Acting Master were in accordance with the relevant rules and whether the costs awarded were appropriate.

The court found that the Acting Master's decision was not supported by the evidence. The evidence did not demonstrate that the executors' conduct was unreasonable, and the findings appeared to be based on a misinterpretation of the material presented. The court emphasised that the burden of proof in such matters is high, and the Acting Master had not met it. Consequently, the court held that the executors' appeal was well-founded and allowed it. The findings of unreasonable conduct were set aside, and the costs awarded to the plaintiffs were deemed unjustified. The court also noted that the executors, as defendants, were entitled to the protection of Part 52A rule 42, which should have been considered by the Acting Master.

The court ordered that the plaintiffs pay the executors' costs of the appeal. It directed that the earlier order for costs awarded to the plaintiffs be set aside, and no costs were to be awarded to either party in relation to the proceedings before the Acting Master. This decision underscores the importance of evidence and procedural fairness in estate disputes and the need for careful consideration of the applicable legal standards.

Orders