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Hons v Hons

Hons v Hons

Case [2010] NSWSC 247 1 April 2010

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CITATION: Hons v Hons [2010] NSWSC 247

HEARING DATE(S): 12 March 2010

JUDGMENT DATE :
1 April 2010

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Ward J

DECISION: Plaintiffs' claim dismissed with costs.

CATCHWORDS: PROBATE AND ADMINISTRATION – accounts –– plaintiff sought order for administrator to file or file and pass accounts in compliance with statutory obligation under s 85 Probate and Administration Act 1898 – deceased died in 1980 –– defendant relied on incorrect legal advice as to obligation to file accounts –– estate records no longer available to defendant – HELD – laches/acquiescence not available as defences to claim based on existence of statutory obligation –– discretion in court whether to grant relief and, if so, time and manner in which accounts should be filed –– consideration of factors relevant to exercise of discretion (delay of plaintiffs in seeking relief –– reason for failure of defendant to comply with obligation –– incomplete records available to defendant –– small size of estate –– onerous nature of procedure for accounts to be taken likelihood that order will be futile due to defendant’s inability to produce necessary documents for preparation of accounts –– disproportionate cost of such a process where estate so small) –– in exercise of court’s discretion relief should not be granted –– plaintiffs’ claim dismissed

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Supreme Court Rules 1970 (NSW)
Trustee Act 1925 (NSW)

CATEGORY: Principal judgment

CASES CITED: Allen v Tobias (1958) 98 CLR 367
Anglo-American Asphalt Co v Crowley Russell & Co [1945] 2 All ER 324
Asset Risk Management Limited v Hyndes [1999] NSWCA 201
Bartlett v Barclays Trust Co Limited (Nos 1 and 2) [1980] Ch 515
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Commonwealth v Verwayen (1990) 170 CLR 394
Dawson v Dawson (1737) 1 Atk 1; 26 ER 1
Dimos v Skaftouros & Ors [2004] VSCA 141
Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464
Fysh v Coote & Ors [2000] VSCA 150
Garcia v Delfino [2003] NSWSC 1001
Gray v Haig (1855) 20 Beav 219; 52 ER 587
Glazier v Australian Men’s Health (No 2) [2001] NSWSC 6
Habib Bank Ltd v Habib Bank AG Zurich [1982] RPC 1
Hickson v Aylward (1828) 3 Molloy (Ir) 1
Ide v Ide [2004] NSWSC 751; (2004) 50 ACSR 324; (2004) 184 FLR 44
In the will of Lockett (1920) SR (NSW) 213; (1920) 37 WN (NSW)
Lord Chedworth v Edwards (1802) 8 Ves Jun 46; 32 ER 68
Ludwig v The Public Trustee [2006] NSWSC 890
Mayfair Trading Co Pty Limited v Dreyer [1958] HCA 55; (1958) 101 CLR 428
McLauchlan v Prince [2001] WASC 43
MLW Investments Pty Limited v Tacsum [2006] NSWSC 1256
Mulherin v Quinn Villages Pty Limited [2007] QSC 231
Nelson v Nelson (1995) 184 CLR 538
North-Eastern Railway Co v Martin (1848) 2 Ph 758; 41 ER 1136
Northey v Juul [2005] NSWSC…

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 Hons v Hons

Details

AGLC: Hons v Hons [2010] NSWSC 247
Case: [2010] NSWSC 247
Decision Date: 1 April 2010

CaseChat Overview and Summary

In the matter of Hons v Hons, the plaintiff sought an order for the administrator to file, or file and pass accounts in compliance with the statutory obligation under section 85 of the Probate and Administration Act 1898. The deceased passed away in 1980, and the defendant administrator relied on incorrect legal advice regarding the obligation to file accounts. The estate records were no longer available to the defendant, complicating the situation further. The case was brought before the court to determine the legal issues at hand.

The primary legal issues the court had to decide were whether laches or acquiescence could serve as valid defences to the claim based on the existence of the statutory obligation to file accounts, and if so, what discretion the court should exercise in granting relief. The court had to consider the delay in the plaintiff's claim, the reason for the defendant's failure to comply with the obligation, the unavailability of complete records to the defendant, the small size of the estate, the onerous nature of the procedure for taking accounts, the likelihood that the order would be futile due to the defendant's inability to produce necessary documents for the preparation of accounts, and the disproportionate cost of such a process given the estate's small size.

After carefully considering these factors, the court determined that laches and acquiescence were not available as defences to the plaintiff's claim based on the existence of the statutory obligation. The court recognised that it had discretion to decide whether to grant relief, and if so, the time and manner in which the accounts should be filed. The court exercised its discretion and decided that relief should not be granted in this instance, considering the various factors at play. Consequently, the plaintiff's claim was dismissed.

The court's final orders were to dismiss the plaintiff's claim, and no relief was granted to the plaintiff for the filing of accounts. The court acknowledged the complexities of the case, the various factors considered, and the exercise of its discretion in reaching this decision.

Orders