1. The grant of probate made on 4 July 2017 be revoked.
2. Letters of administration be granted to the plaintiff to administer the estate of the late Asher Mannie Osband and refer the file in this matter to the Probate Registrar to complete the grant of letters of administration.
3. The amount of $469,718.04 be paid out of Court to the plaintiff, representing the balance of 37.5% of the net proceeds from the sale of the Double Bay Property remaining after the funds already disbursed to the plaintiff from the funds held in Court.
4. The defendant pay the plaintiff interest on the sum of $889,718.04 (being 37.5% of the net proceeds from the sale of the Double Bay Property) from 13 October 2017 to the date of distributions made in respect of the plaintiff’s share of those proceeds and for the balance up to the date of judgment, calculated at the rate prescribed by s 100 of the Civil Procedure Act 2005 (NSW).
5. The defendant pay the plaintiff equitable compensation of $163,125, representing the loss suffered by the plaintiff as a consequence of the sale of the Double Bay Property at an undervalue.
6. The defendant pay the plaintiff interest on the sum of $163,125 from 13 October 2017 to the date of judgment, calculated at the rate prescribed by s 100 of the Civil Procedure Act 2005 (NSW).
7. The defendant pay the plaintiff $484,552.89 in her capacity as administrator of the estate of the late Asher Mannie Osband in order to replenish funds improperly paid from the deceased’s estate by the defendant.
8. The defendant pay the plaintiff in her capacity as administrator of the estate of the late Asher Mannie Osband interest on the sum of $484,552.89 calculated from the date of each such payment to the defendant out of the estate funds of the amounts comprised in this sum to the date of judgment, calculated at the rate prescribed by s 100 of the Civil Procedure Act 2005 (NSW).
9. The balance of the funds held by the Court are to be paid to the plaintiff, to be held by the plaintiff as trustee.
10. The defendant pay the plaintiff’s costs of the proceeding on an indemnity basis.
11. Declare that the defendant is not entitled to be indemnified from the funds from the sale of the Double Bay Property, including but not limited to the interest of the deceased estate in those funds, in respect of his legal costs, or any other costs and expenses relating to this proceeding.
Catchwords:
EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where there was a common intention between the plaintiff and the deceased that the plaintiff hold a proprietary interest 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.
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AGLC
Gritzman v McRae [2022] NSWSC 745
Case
[2022] NSWSC 745
Decision Date
CaseChat Overview and Summary
Gritzman v McRae is a case involving a dispute over a property that was subject to a will. The plaintiff, Gritzman, sought to establish a proprietary interest in the property on the basis of a common intention with the deceased. The defendant, McRae, was the executor of the will and held the property as a constructive trustee for Gritzman's benefit. The dispute arose when McRae sold the property without consulting Gritzman and transferred the proceeds to his personal bank account, breaching his duties as a constructive trustee. The case also involved whether McRae's liability was excused by certain sections of the Trustee Act 1925 (NSW), and whether Gritzman's interest was subject to provisions in the will entitling McRae to the income from investment of the proceeds of sale of the property.
The legal issues in this case revolved around whether there was a common intention between the plaintiff and the deceased that the plaintiff should hold a proprietary interest in the property. The court was also required to determine whether the defendant breached his duties as a constructive trustee by selling the property without consulting the plaintiff, and whether his liability could be excused under the Trustee Act. Additionally, the court had to consider whether the plaintiff's interest in the property was subject to provisions in the will that entitled the defendant to the income from investment of the proceeds of sale.
The court held that there was a common intention between the plaintiff and the deceased that the plaintiff hold a proprietary interest in the property. The court found that the defendant had breached his duties as a constructive trustee by selling the property without consulting the plaintiff, and that his liability could not be excused under the Trustee Act. The court also found that the plaintiff's interest was not subject to provisions in the will that entitled the defendant to the income from investment of the proceeds of sale. The court ordered the defendant to account for the proceeds of sale and to pay compensation to the plaintiff.
The final orders of the court included that the defendant was to account for the proceeds of sale of the property and pay compensation to the plaintiff. The court also ordered that the defendant was to pay costs of the proceeding. The court did not remove the defendant as the executor of the will, but made clear that his actions in breaching his duties as a constructive trustee were unacceptable and would not be tolerated in the future.