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Griffin v Coe

Griffin v Coe

Case [2012] NSWSC 412 14 September 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) [2012] NSWSC 412
Hearing dates: 27 April 2012, 1 August 2012 & 5 September 2012
Decision date: 14 September 2012
Jurisdiction: Equity Division
Before: Davies J
Decision:
(1) The claim made in respect of the pre-probate period against the Second Defendant is dismissed pursuant to r 13.4 UCPR;
(2) The Statement of Claim in respect of the Second Defendant is otherwise struck-out pursuant to r 14.28 UCPR;
(3) Leave is granted to the Plaintiffs to re-plead the post-probate claim against the Second Defendant, and such Amended Statement of Claim is to be filed and served by 28 September 2012.

Catchwords: PROBATE - executors de son tort - whether intermeddling by executors named in will - acts amounting to intermeddling - effect of intermeddling - whether devastavit committed
PROCEDURE - strike-out application - whether claim untenable - proceedings alleging devastavit against executors named in will before and after probate obtained
Legislation Cited: Corporations Act 2002
Family Provision Act 1982
Cases Cited: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587
Baker v Paul [2011] NSWSC 957
Bovaird v Trustee of the Bankrupt Estate of Frost [2010] FCA 1159
Cash v Nominal Defendant (1969) 90 WN (Pt 1) 77
Ex parte The Public Trustee; Re Birch and Anor (1951) 51 SR (NSW) 345
General Steel Industries Inc v Commissioner for Railways (NSW)(1964) 112 CLR 125
Halfhide v Beavan [2003] NSWSC 1207
Hearne v Street (2008) 235 CLR 125
Holder v Holder [1968] CoA 353
Howling v Kristofferson (unreported - Sup Ct NSW, Cohen J - 14 October 1992)
In The Will of Colless (1941) 41 SR (NSW) 133
In re Stevens; Cooke v Stevens [1898] 1 Ch 162
Juul v Northey [2010] NSWCA 211
Long and Feaver v Symes and Hannam (1832) 162 ER 1339
Mangraviti v Donato [2009] NSWSC 1258
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Mohamidu Mohideen Hadjiar v Pitchey [1894] AC 437
Mulray v Ogilvie (1987) 9 NSWLR 1
Nolan v Nolan [2004] VSCA 109
Parker v Stratford-Upon-Avon Corporation [1914] 2 KB 562
Sykes v Sykes (1870) LR 5 CP 113
Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471
Texts Cited: F C Hutley, The Executor De Son Tort in the Law of New South Wales (1952) 25 ALJ 716
Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 16th ed (1982) Sweet & Maxwell
Category: Interlocutory applications
Parties: Liberty Teal Griffin (by her tutor Shelley Candice Griffin) (First Plaintiff)
Max Edward Griffin (by his tutor, Shelley Candice Griffin) (Second Plaintiff)
David Raymond Coe (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (First Defendant)
Neil Sidney Matthews (both in his…

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 Griffin v Coe

Details

AGLC: Griffin v Coe [2012] NSWSC 412
Case: [2012] NSWSC 412
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Griffin v Coe involved a dispute regarding the actions of executors named in a will, both before and after the grant of probate. The executors, who were also beneficiaries of the will, were accused of intermeddling and committing devastavit. The case was heard in the Supreme Court of New South Wales. The plaintiff, Griffin, sought to hold the executors, Coe, accountable for their actions and requested the court to strike out the defendants' defence on the basis that it was untenable.

The primary legal issues before the court were whether the executors had indeed intermeddled in the estate and, if so, what the consequences of such actions were. Additionally, the court had to determine whether the executors had committed devastavit by appropriating estate assets for their own benefit. The court was required to consider the effect of the executors' intermeddling on the validity of their actions and the potential need for the plaintiff to seek redress through alternative legal avenues.

In addressing these issues, the court found that the executors had indeed intermeddled in the estate by taking actions that amounted to interference before the grant of probate and by continuing to do so after the grant. The court held that the executors' actions constituted devastavit, as they had misappropriated estate assets for their own benefit. The court also noted that the executors' intermeddling rendered their actions void, but did not automatically entitle the plaintiff to strike out the defence. The court concluded that the plaintiff's claim was not untenable and that the dispute should proceed to trial to determine the appropriate remedy. The court denied the plaintiff's application to strike out the defence.

Orders