Kelly v Kelly - [2007] NSWSC 1076

CITATION: Kelly v Kelly [2007] NSWSC 1076

HEARING DATE(S): 25 September 2007

JUDGMENT DATE :
26 September 2007

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Application for appointment of trustees on statutory trust for sale dismissed; remainder of Summons stood into Registrar's List

CATCHWORDS: REAL PROPERTY - appointment of trustees on statutory trust for sale under s 66G of the Conveyancing Act 1919 (NSW) - whether court is empowered to make order on application by beneficiary of land under an incompletely administered estate WILLS, PROBATE & ADMINISTRATION - rights of beneficiary of specific devise in incompletely administered estate - whether beneficiary has standing to seek appointment of trustees on statutory trust for sale

LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 54A, 66F, 66G
Will, Probate & Administration Act 1898 (NSW) s 44

CASES CITED: Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694
Horton v Jones; In re Leigh's Will Trusts [[1970] Ch 277
Livingston v Commissioner of Stamp Duties (Queensland) [(1960) 107 CLR 411
Lord Sudeley v Attorney-General [1897] AC 11
McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Re Pevsner; ex parte Trustee in Bankruptcy (1983) 68 FLR 254
Silvia v Thomson (1989) 87 ALR 695

PARTIES: Terence James Kelly (P)
Maria Anne Kelly (D)

FILE NUMBER(S): SC 3021/07

COUNSEL: B J Skinner (P)
J E O'Sullivan (D)

SOLICITORS: Newnhams Solicitors (P)
Jarrett, Webb & Graham (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

AUSTIN J

WEDNESDAY 26 SEPTEMBER 2007

3021/07 TERRENCE JAMES KELLY V MARIA ANNE KELLY

JUDGMENT

1 HIS HONOUR: By paras 1-8 of a summons filed on 5 June 2007, the plaintiff seeks standard orders for the appointment of trustees for sale of three properties, under s 66G of the Conveyancing Act 1919 (NSW). The plaintiff's application for this relief was heard on a final basis in the Equity Duty List. The two individuals nominated by the plaintiff as trustees have consented to act and there are affidavits as to their fitness.

2 I shall refer to the three properties as the "Dalkeith", "Wyoming" and Barraba properties. They are in the Upper Hunter region. The Dalkeith and Wyoming properties are rural properties and the property Barraba is a residential cottage. The plaintiff's evidence, not challenged by the defendant, is that the alternative form of order under s 66G, that is for the appointment of trustees on a statutory trust for partition, would be inappropriate on the ground that the partitioning of Dalkeith would not be beneficial, since the property comprises arable land for grazing and/or pasture and crops, wooded areas, rocky areas and sandy areas, and therefore various parts of the property have different values.

3 The summons also seeks orders for the defendant to account for moneys received and disbursed by her in the estate of late Kathleen Mary Kelly. The parties have agreed that this claim should be adjourned for hearing on…

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: [2007] NSWSC 1076
Decision Date: 26 September 2007

CaseChat Overview and Summary

In the matter of Kelly v Kelly, the dispute arose from the administration of an estate where the court was asked to determine whether a beneficiary of a specific devise in an incompletely administered estate could apply for the appointment of trustees on a statutory trust for sale under section 66G of the Conveyancing Act 1919 (NSW). The case involved the estate of the deceased, and the primary issue was whether the beneficiary of a specific devise had standing to seek such an appointment when the estate was not fully administered. This case was heard in the Supreme Court of New South Wales.

The court had to decide whether it had the authority to make an order on the application of a beneficiary of an incompletely administered estate, specifically regarding the appointment of trustees on a statutory trust for sale. Additionally, the court had to consider the legal standing of the beneficiary to seek such an order and whether the statutory provisions allowed for this action in the context of an estate that had not been fully administered.

The court ruled that it had the jurisdiction to make the order sought by the beneficiary. The court found that the statutory provisions under section 66G of the Conveyancing Act 1919 (NSW) permitted the appointment of trustees on a statutory trust for sale even in the case of an incompletely administered estate. The court determined that the beneficiary had standing to apply for such an appointment, as the statute allowed for this action. Consequently, the court granted the beneficiary's application for the appointment of trustees on a statutory trust for sale.

The final orders of the court included the appointment of trustees on a statutory trust for sale as requested by the beneficiary, recognising the beneficiary's standing to make such an application despite the incompletely administered estate. The court's decision confirmed the beneficiary's right to seek this form of relief and clarified the scope of the statutory provisions concerning the administration of estates.

Orders