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Hawkins v Barkley-Brown

Hawkins v Barkley-Brown

Case [2010] NSWSC 48 8 February 2010

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CITATION: Hawkins v Barkley-Brown & Anor [2010] NSWSC 48
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 September 2009 & 6 November 2009

JUDGMENT DATE :
8 February 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: See paragraph [78] of the judgment.

CATCHWORDS: PROCEDURE - registrar's assessment of commission for executor upon passing of first accounts - registrar awards commission under s 86(1) of the Probate and Administration Act 1898 expressed as a percentage of capital realised, income and assets transferred in specie - review of registrar's decision - award of percentage commission to executor is appropriate even in a large estate - no risk of double compensation where executor also involved in litigation on behalf of estate - executors' involvement in litigation part of executorial duties - assessment based on performance of executorial duties - hourly rate not necessary to calculate executor's commission - quantum of award given by registrar appropriate given the executor's 'pains' and 'trouble' in carrying out his duty

LEGISLATION CITED: Administration and Probate Act 1890 (VIC) s 26
Charter of Justice 1823 s xvii
Probate Administration Act 1898 (NSW) s 86(1)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Principal judgment

CASES CITED: Barkley v Barkley Brown [2009] NSWSC 76
Creer v Estate of Peters [2007] NSWSC 1291
Hall v Transport Infrastructure Development Corporation [2006] NSWSC 1076
In re Allan Mclean (Deceased) (1911) 31 NZLR 139
In re Barr Smith [1920] SALR 381
In the estate of Stone (deceased): Patterson v Halliday [2003] VSC 298
In the Will of Sheppard [1972] 2 NSWLR 714
In the Will of T.S. Douglas deceased (1951) 51 SR(NSW) 282
Macartney v Macartney (1909) VLR 183
Re Craig (1952) 52 SR (NSW) 265
Re Smith (1916) 16 SR (NSW) 422
Re the Estate of D A Lindsay [2004] NSWSC 575
Re the Estate of Ghidella [2005] QSC 106
Tomko v Palasty (No 2) (2007) NSWCA 369

TEXTS CITED: Keith Mason, Leslie G. Handler Succession Law and Practice NSW (1985) Butterworths
Eric Vance, Executors Commission (1969) Law Book Company

PARTIES: Plaintiff/Respondent: John Hawkins
First Defendant/Applicant: Vicki Barkley-Brown
Second Defendant: Geoff Allars

FILE NUMBER(S): SC 115433/07

COUNSEL: Plaintiff/Respondent: Mr J E Armfield
Defendants/Applicant: Mr M D Broun QC & Ms E M Picker

SOLICITORS: Plaintiff/Respondent: John Fisicaro & Co
Defendants/Applicant: Peter Dawson & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY 8 FEBRUARY 2010

115433/2007 JOHN HAWKINS v VICKI BARKLEY-BROWN & GEOFF ALLARS

JUDGMENT

1 HIS HONOUR: These proceedings are commenced by way of notice of motion for review of a decision of Registrar Haggart made on 15 April 2009. The applicant on the motion is Ms Vicki Barkley-Brown, one of the beneficiaries of the estate of the late Rhonda Brenda Farrell. Ms Barkley-Brown is also an executor of Mrs Farrell’s will. The first respondent to the motion Mr Hawkins, is the other executor of Mrs Farrell’s will. The second respondent…

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 Hawkins v Barkley-Brown

Details

AGLC: Hawkins v Barkley-Brown [2010] NSWSC 48
Case: [2010] NSWSC 48
Decision Date: 8 February 2010

CaseChat Overview and Summary

The case of Hawkins v Barkley-Brown involved a dispute regarding the assessment of commission for an executor, following the passing of the first accounts. The executor, who was also involved in litigation on behalf of the estate, sought a review of the registrar's decision regarding the commission awarded under section 86(1) of the Probate and Administration Act 1898. The estate was substantial, and the executor argued that the percentage-based commission was appropriate, and there was no risk of double compensation. The court had to determine whether the executor's involvement in litigation was part of their executorial duties and if the assessment should be based on the performance of those duties, rather than an hourly rate.

The primary legal issues in this case were whether the executor's involvement in litigation was considered part of their executorial duties and if the assessment of commission should be based on performance rather than an hourly rate. The court had to consider if the percentage-based commission awarded by the registrar was appropriate given the executor's efforts and the nature of the estate. Additionally, the court needed to address the concern of double compensation and whether the executor's involvement in litigation would impact the assessment of their commission.

The court found that the executor's involvement in litigation was indeed part of their executorial duties, and the assessment of their commission should be based on the performance of those duties. The court emphasised that an hourly rate was not necessary to calculate the executor's commission. The court concluded that the quantum of the award given by the registrar was appropriate, considering the executor's 'pains' and 'trouble' in carrying out their duty. The court also noted that there was no risk of double compensation, as the executor's involvement in litigation was part of their executorial duties. The review of the registrar's decision was ultimately dismissed.

As a result of the court's decision, the executor's percentage-based commission remained unchanged. The court upheld the appropriateness of the award given by the registrar, considering the executor's efforts and the nature of the estate. The court's decision confirmed that the executor's involvement in litigation was part of their executorial duties and that an hourly rate was not necessary to calculate their commission. The risk of double compensation was also dismissed, as the executor's litigation was considered part of their duties.

Orders