Hammond v Hammond - [2010] NSWSC 331

CITATION: Hammond v Hammond [2010] NSWSC 331

HEARING DATE(S): 12-13 April 2010

JUDGMENT DATE :
27 April 2010

JURISDICTION: Equity

JUDGMENT OF: Biscoe AJ

DECISION: (1) Order defendant to pay plaintiff $77,230; (2) cross claim dismissed; (3) defendant to pay plaintiff’s costs of the proceedings; (4) exhibits may be returned.

CATCHWORDS: TRUSTS - whether executor of will distributed money to himself in breach of orders in earlier Family Provision Act proceedings between the parties - executor cross claims to construe or rectify the phrase "residue of the estate" in agreed short minutes of order in the earlier proceedings so as to include a superannuation fund death benefit which was not an asset in the estate - cross claim dismissed - whether, if executor's cross claim had succeeded, it would have affected the perfected orders made in the earlier proceedings - EVIDENCE - whether rule in Jones v Dunkel operates to require a party to give merely cumulative evidence

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982
Protected Estates Act 1983
Uniform Civil Procedure Rules 2005

CASES CITED: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, 264 ALR 15
Hammond v Hammond [2007] NSWSC 106
Jones v Dunkel (1959) 101 CLR 298
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65, 69 NSWLR 603
Smith v Smith (now Vocalan) [2004] NSWSC 663
Taylor v Johnson (1983) 151 CLR 422

TEXTS CITED: J Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths

PARTIES: John Joseph Hammond by his Tutor Luke John Hammond (plaintiff, cross-defendant)
Terence Sydney Hammond (defendant, cross-claimant)

FILE NUMBER(S): SC 2008/282147

COUNSEL: Mr R Lovas (plaintiff, cross-defendant)
Mr J Glissan QC with Mr B Ilkovski (defendant, cross-claimant)

SOLICITORS: Livingstone & Company Lawyers (plaintiff, cross-defendant)
Marando Solicitors (defendant, cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

27 April 2010

2008/282147 JOHN JOSEPH HAMMOND BY HIS TUTOR LUKE JOHN HAMMOND v TERENCE SYDNEY HAMMOND

JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is a claim by a beneficiary against the executor of his father’s will for breach of trust in paying $62,409 out of the estate to himself instead of to the beneficiary in contravention of orders made on 15 March 2007 in other proceedings between them under the Family Provision Act 1982. The relief claimed is an order that the executor pay the beneficiary that sum with interest or alternatively that the executor be replaced as trustee and an accounting conducted in respect of the trust.

2 The plaintiff beneficiary is John Joseph Hammond who is mildly intellectually impaired by reason of Down’s syndrome. He sues by his tutor and brother, Luke John Hammond (Luke), who is a solicitor. Luke is also the plaintiff’s financial manager appointed by order of the Guardianship Tribunal. The defendant executor is the plaintiff’s uncle, Terence John Hammond.

3 The defendant seeks to justify most of the said payment to himself by cross-claiming for:

(a) a declaration that on the proper construction of…

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 Hammond v Hammond

Details

AGLC: Hammond v Hammond [2010] NSWSC 331
Case: [2010] NSWSC 331
Decision Date: 27 April 2010

CaseChat Overview and Summary

In the matter of Hammond v Hammond, the respondent, a beneficiary under the will of the deceased, brought an action against the appellant, the executor of the deceased's will, seeking to establish that the executor had distributed money to himself in breach of the orders made in earlier Family Provision Act proceedings between the parties. The appellant brought a cross claim seeking to construe or rectify the phrase "residue of the estate" in the agreed short minutes of order in the earlier proceedings, in order to include a superannuation fund death benefit, which was not an asset in the estate. The court was required to determine whether the executor's cross claim was successful, and whether it would have affected the perfected orders made in the earlier proceedings. Additionally, the court needed to determine whether the rule in Jones v Dunkel operated to require a party to give merely cumulative evidence.

The court held that the executor's cross claim was unsuccessful, as the agreed short minutes of order in the earlier proceedings was clear and unambiguous. The court held that the phrase "residue of the estate" did not include the superannuation fund death benefit, and that the executor's cross claim would not have affected the perfected orders made in the earlier proceedings. The court further held that the rule in Jones v Dunkel did not require a party to give merely cumulative evidence, as the evidence in question was not merely cumulative, but was relevant to the issue of whether the executor had distributed money to himself in breach of the orders made in the earlier proceedings. The court dismissed the executor's cross claim, and held that the respondent was entitled to the relief sought in her originating application.

The final orders of the court were that the executor's cross claim was dismissed, and that the respondent was entitled to the relief sought in her originating application. The court did not make any orders in relation to the rule in Jones v Dunkel, as it was not necessary to do so in order to resolve the issues in the case. The court held that the evidence in question was relevant to the issue of whether the executor had distributed money to himself in breach of the orders made in the earlier proceedings, and that the rule in Jones v Dunkel did not require a party to give merely cumulative evidence.

Orders