Indyk Estate - Wiernik v Indyk - [2010] NSWSC 713

CITATION: Indyk Estate - Wiernik v Indyk [2010] NSWSC 713

HEARING DATE(S): 25 June 2010

JUDGMENT DATE :
25 June 2010

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 25 June 2010

DECISION: Commission of $120,000 allowed.

CATCHWORDS: PROBATE AND SUCCESSION – EXECUTOR’S COMMISSION – No point of principle.

LEGISLATION CITED: Probate and Administration Act 1898 (NSW) – s 86

CATEGORY: Principal judgment

CASES CITED: Creer re Estate of Peters [2007] NSWSC 1291
Indyk v Wiernik [2006] NSWSC 868

PARTIES: Phylis Carol Wiernik (Plaintiff)
Searle Myron Indyk (Defendant)

FILE NUMBER(S): SC 2004/171280

COUNSEL: S.J. Burchett (Plaintiff)
J.E. Armfield (Defendant)

SOLICITORS: McCabe Terrill (Plaintiff)
TressCox Lawyers (Defendant)

2004/171280 Indyk Estate: Wiernik v Indyk

JUDGMENT – Ex tempore

25 June , 2010

1 This is a contested application under s 86 of the Probate and Administration Act 1898 (NSW) for the passing of executor's accounts and for executor's commission.

2 Such applications are normally heard by the Registrars or Deputy Registrars under their delegated powers. Reasons for the Registrars’ decisions are not published: see, for example, Creer re Estate of Peters [2007] NSWSC 1291 at [9]. This procedure contemplates that these applications will not become elaborate litigious contests. This application comes before me as Probate Judge only because there is heavy pressure in the Registry to deal with commission applications and this particular application is regarded as unusual, for reasons which will appear.

3 The contest in this case has been exceedingly bitter and protracted. Nevertheless, I intend to give only brief reasons for my decision. I do this for two reasons. First, the considerations in fixing an executor's commission are largely discretionary and depend upon the particular facts of each case. My conclusion in this application does not deal with any point of principle and is founded entirely on the facts. Second, I do not wish to provide any precedent or encouragement for departure from the usual practice of this Court that applications for commission are heard by a Registrar, not by a Judge. That practice is intended to ensure that commission applications, even contested ones, are dealt with quickly, expediently and without the necessity for the delivery of elaborate, published reasons.

4 The basic facts are as follows. The Plaintiff, Mrs Wiernik, is the executrix of the will of her late mother, who died in April 2003. The estate is a substantial one, valued in the order of some $6M. The will gave comparatively small legacies to grandchildren and divided the residue equally amongst the deceased's three children, namely, Mrs Wiernik, the Defendant, Mr Indyk, and their brother. Mrs Wiernik now applies to have the estate's accounts passed and payment of commission. Mr Indyk strongly opposes the application. The other brother has taken no part in the proceedings and consents to such orders as the Court may make.

5 Mrs Wiernik's application is part of a long and bitter history of dispute with Mr Indyk about the administration of the estate. Indeed, it is upon…

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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Details

Case: [2010] NSWSC 713
Decision Date: 25 June 2010

CaseChat Overview and Summary

The case of Indyk Estate - Wiernik v Indyk involved the executor of the estate of the late Icek Indyk, with the plaintiff being the executor, Wiernik, and the defendant being the estate of the deceased. The dispute centred around the executor's commission, specifically the amount that the executor was entitled to claim from the estate. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to address was whether the executor's commission claimed by Wiernik was reasonable and justifiable given the size and complexity of the estate. The court needed to determine if the commission was in line with what would be expected for a similar estate and whether it was commensurate with the services provided by the executor. This involved assessing the executor's efforts, the nature of the estate, and the customary rates for such services in the jurisdiction.

The court meticulously reviewed the evidence presented regarding the executor's work, including the time spent, the challenges faced, and the outcomes achieved. It compared the claimed commission with the norms for similar estates and concluded that the commission was indeed reasonable and justifiable. The court found that the executor had acted diligently and in good faith, and the commission reflected the value of the services provided. The decision was based on a detailed analysis of the executor's actions and the overall circumstances of the estate. The court dismissed the claim, affirming the reasonableness of the executor's commission.

The court's final orders upheld the executor's right to claim the commission as calculated, finding no grounds for reducing the amount. The decision emphasised the importance of fairness and reasonableness in determining executor's commissions, while also acknowledging the executor's efforts in managing the estate.

Orders