Gray v Gray

Case [2004] NSWCA 408
CITATION: Gray v Gray [2004] NSWCA 408
HEARING DATE(S): 31/08/04
JUDGMENT DATE:
11 November 2004
JUDGMENT OF: Sheller JA at 1; Bryson JA at 2; Young CJ in Eq at 3
DECISION: Appeal allowed only to the extent of deleting orders 1(c) and 1(d), 2(c) and 2(d) and adjusting monetary sum. Costs to be dealt with later.
CATCHWORDS: Equity- Administration of estate- Rule in Cherry v Boultbee- Effect of NZ Statute of Limitations which barred remedy only- What interest must be paid on taking of accounts.
LEGISLATION CITED: Limitation Act, 1950 (NZ)
CASES CITED: A E Goodwin Ltd v A G Healing Ltd (1979) 7 ACLR 481
Australian and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478
Boddam v Ryley (1762) 1 Bro CC 239; 28 ER 1104
Byrn v Godrey (1798) 4 Ves 6; 31 ER 3
Calton v Bragg (1812) 15 East 223; 104 ER 828
Campbell v Graham (1831) 1 Russ & M 453; 39 ER 175
Campbell v Sandford (1834) 8 Bligh NS 622; 5 ER 1073
Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171
Cityland & Property (Holdings) Ltd v Dabrah [1968] Ch 166
Courtenay v Williams (1843) 3 Hare 539; 67 ER 494
Courtenay v Williams (1846) 15 LJ Ch 204
Dingle v Coppen [1899] 1 Ch 726
Fleming v Beevers [1994] 1 NZLR 385
Heydon v Perpetual Executors, Trustee & Agency Co (WA) Ltd (1930) 45 CLR 111
Joaquin v Hall [1976] VR 788
Jones v Padavatton [1969] 1 WLR 328; [1969] 2 All ER 616
Lewis v Cook (2000) 18 ACLC 490
Mendl v Smith (1943) 112 LJ Ch 279
Nelson v Nelson (1995) 184 CLR 538
Re Akerman [1891] 3 Ch 212
Re Bickerdike (No 2) [1919] VLR 62
Re Drax [1903] 1 Ch 781
Re Fox, Walker & Co; Ex parte Bishop (1880) 15 Ch D 400
Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144
Re Sewell [1909] 1 Ch 806
Re Swan's Estate (1869) 4 Ir Eq 209
Schmierer v Taouk (2004) 207 ALR 301
Seldon v Davidson [1968] 2 All ER 755
Thiess v TCN Channel 9 Pty Ltd (No 5) [1994] 1 Qd R 156
Upton v Ferrers (1801) 5 Ves 801; 31 ER 866
Whiteley v Hodge [2000] NSWSC 1161
Williams v Vicroft Pty Ltd (Powell J, 31.5.1989)

PARTIES :

 Robert John Charles Gray (Appellant)
Rollo Ventry Wakefield Gray (1st Respondent)
Guardian Trust Australia Ltd (2nd Respondent)
FILE NUMBER(S): CA 40074/03
COUNSEL: T Lynch (Appellant)
D P F Officer QC and P M Lane (1st Respondent)
M S Willmott SC (2nd Respondent)
SOLICITORS: Turner Freeman Lawyers (Appellant)
Teece Hodgson & Ward (1st Respondent)
Mallesons Stephen Jaques (2nd Respondent)
LOWER COURTJURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): 114938/99
LOWER COURT
JUDICIAL OFFICER : 		Austin J


                          40074/03

                          SHELLER JA
                          BRYSON JA
                          YOUNG CJ in EQ

                          Thursday 11 November 2004
ROBERT JOHN CHARLES GRAY v ROLLO VENTRY WAKEFIELD GRAY &…

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AGLC
Gray v Gray [2004] NSWCA 408
Case
[2004] NSWCA 408
Decision Date

CaseChat Overview and Summary

The parties in this matter were the executors of the estate of the late Mr. Gray and the beneficiaries of that estate. The dispute concerned the administration of the estate, specifically the application of the rule in *Cherry v Boultbee* and the effect of a New Zealand statute of limitations on the taking of accounts. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the rule in *Cherry v Boultbee* applied in the circumstances of this estate, and what interest was payable on the accounts taken. The court also had to consider the impact of a New Zealand statute of limitations, which barred the remedy but not the right, on the beneficiaries' claims against the estate.

The Court of Appeal considered the application of the rule in *Cherry v Boultbee*, which generally prevents a beneficiary from claiming a share of an estate while owing a debt to that estate. The court reasoned that the rule was applicable and that the beneficiaries' claims were subject to their indebtedness to the estate. Regarding the New Zealand statute of limitations, the court determined that it did not extinguish the beneficiaries' rights but merely barred the remedy, meaning their claims could still be considered in the context of the estate administration. The court also addressed the appropriate rate of interest to be applied to the accounts.

The appeal was allowed in part, with specific orders relating to the taking of accounts and monetary sums being deleted and adjusted. The question of costs was reserved for later determination.

Orders

Orders of the court

Appeal allowed only to the extent of deleting orders 1(c) and 1(d), 2(c) and 2(d) and adjusting monetary sum. Costs to be dealt with later.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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