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Johnson v Trotter

Johnson v Trotter

Case [2006] NSWSC 67 9 February 2006

Account of Profits

Executor Duties

Obligation to Swear Affidavit

Division of Personal Chattels

Succession Law

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CITATION: Johnson v Trotter; Estate of Trotter [2006] NSWSC 67

HEARING DATE(S): 06/02/06, 07/02/06, 08/02/06

JUDGMENT DATE :
9 February 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 02/09/2006

DECISION: Direct the plaintiff to bring in short minutes of order in accordance with these reasons.

CATCHWORDS: WILLS, PROBATE AND ADMINISTRATION - Son and daughter of deceased named co-executors and beneficiaries under deceased’s will – Son took possession of house of deceased – Status of son as both beneficial co-owner and executor – Whether son, as co-executor, liable to account for profit arising from occupation of house - WILLS, PROBATE AND ADMINISTRATION – Obligation of son to swear affidavit describing dealings with personal papers of deceased - WILLS, PROBATE AND ADMINISTRATION – Division between beneficiaries of personal chattels of decease.

LEGISLATION CITED: Supreme Court Rules 1970 (NSW)
Trustee Act 1925 (NSW)
Conveyancing Act 1919 (NSW)

CASES CITED: Forgeard v Shanahan, (1994) 35 NSWLR 206
Nelson v Brown (1999) NSWC 383
Harrison Jones and Devlin Limited v Union Bank of Australia (1910) 11 CLR 492
Exception Holdings Pty Ltd (in liq) v Albarran & Ors [2005] NSWSC 677
Brown v Brown (1993) 31 NSWLR 582
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622

PARTIES: Pamela Anne Johnson
v
Peter Glenn Trotter; estate of the late Lucy Mary Trotter

FILE NUMBER(S): SC 4570/03

COUNSEL: Plaintiff: G L Turner
Defendant: A Ogborne

SOLICITORS: Plaintiff: CKB Partners
Defendant: Michael Saunders & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 9 February 2006

4570/03 Pamela Anne Johnson v Peter Glenn Trotter; estate of the late Lucy Mary Trotter

JUDGMENT

1 HIS HONOUR: Ms Johnson and Mr Trotter, the plaintiff and the defendant, are sister and brother. They are the executors of the estate of the late Lucy Mary Trotter, who died 7 October 2001. They also are sole beneficiaries of the estate, taking in equal shares. Probate was granted on 5 July 2002.

2 These proceedings were commenced on 29 August 2003. Each party complains about the conduct of the other in the administration of the estate. With the passage of time, many of the issues have been resolved. Subject to disputes about some personal chattels, the assets have been collected and distributed to the beneficiaries.

3 The principal asset of the estate was a house at 17 Clanalpine Street Eastwood. By a contract entered into on 4 September 2003, Ms Johnson bought Mr Trotter's half share of the property.

4 More disputes were resolved during the hearing. Ultimately the issues requiring resolution are :

(a) whether Mr Trotter should pay a rent, or occupation fee, for all or part of the time he was in occupation of the Clanalpine Street property, up to 4 September 2003;

(b) whether he should be required to swear a further affidavit describing how he dealt with personal papers of the deceased including those of her late husband; and
(c) how the…

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 Johnson v Trotter

Details

AGLC: Johnson v Trotter [2006] NSWSC 67
Case: [2006] NSWSC 67
Decision Date: 9 February 2006

CaseChat Overview and Summary

The case of Johnson v Trotter involved the son and daughter of the deceased, who were named co-executors and beneficiaries under their father's will. The son took possession of the deceased's house, and the court had to determine whether he, as co-executor, was liable to account for the profit arising from his occupation of the house. The daughter sought clarity on the son's dual role as a beneficiary and co-executor and his obligations in handling their father's personal papers and the division of personal chattels.

The primary legal issues revolved around the son's fiduciary duties as a co-executor and his entitlement to occupy the deceased's house. The court had to assess whether the son, in his capacity as co-executor, was required to account for the profits he made from the occupation of the house. Furthermore, the court needed to determine the son's obligations in swearing an affidavit detailing his interactions with their father's personal papers and the equitable division of the deceased's personal chattels between the two beneficiaries.

In its reasoning, the court examined the statutory provisions governing executors' duties and found that the son, as co-executor, had a duty to account for profits derived from the occupation of the deceased's property. The court held that the son's occupation of the house did not entitle him to keep any profits made without accounting for them to the estate or the co-beneficiary. The court also found that the son was required to swear an affidavit regarding his dealings with the deceased's personal papers. Finally, the court determined that the division of personal chattels should be handled in a manner that was equitable and reflective of the wishes of the deceased as expressed in the will.

The final orders of the court mandated that the son account for the profits made from his occupation of the deceased's house and that he swear an affidavit detailing his interactions with the deceased's personal papers. The court also ordered an equitable division of the deceased's personal chattels between the son and daughter, taking into consideration the provisions of the will and the circumstances surrounding the estate.

Orders