Knuckey v Knuckey - [2022] WASC 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KNUCKEY -v- KNUCKEY [2022] WASC 157
CORAM:   MASTER SANDERSON
HEARD:   14 MARCH 2022
DELIVERED          :   6 MAY 2022
PUBLISHED           :   6 MAY 2022
FILE NO/S:   CIV 2166 of 2021
BETWEEN:   DOUGALD RANDALL KNUCKEY
Plaintiff
AND
JUSTIN ALEXANDER RANDALL KNUCKEY
First Defendant
IAN RANDALL
Second Defendant
KATHRYN RANDALL
Third Defendant
DOUGALD RANDALL KNUCKEY
Fourth Defendant

Catchwords:

Probate practice - Application by executory for judgment of commission - Turns on own facts

Legislation:

Trustees Act 1962 (WA)

Result:

Commission payable

Category: B

Representation:

Counsel:

Plaintiff	:	D Lang
First Defendant	:	No appearance
Second Defendant	:	In person
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Macdonald Rudder
First Defendant	:	No appearance
Second Defendant	:	In person
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Case(s) referred to in decision(s):

In Re Barr Smith 1920 SALR 380
In re Chirnside; Lewis v Forrest & Ors 1956 V.L.R 295
Peter Henry Atkins as Executor of the Estate of Robert Charles Godfrey v Godfrey & Ors [2006] WASC 83

MASTER SANDERSON:

By originating summons filed 4 November 2021, the plaintiff, Dougald Randall Knuckey, sought the following order:
Pursuant to section 98 of the Trustees Act 1962, the plaintiff seeks a commission for his services acting as trustee in the sum of $26,208.40 representing 2% of the gross value of the estate of the deceased.
As the protagonists in this matter share the same surname, I will refer to them, without meaning any disrespect, as Dougald and Ian. Dougald has sworn two affidavits in support of the application, the first sworn 29 October 2021 and the second sworn 17 February 2022. Ian has also sworn two affidavits in opposition to the application. The first was sworn on 31 December 2021 and the second was sworn 3 March 2022. Neither the first nor the third defendants took any part in these proceedings.
Probate of the last will and testament of Lynette Knuckey (the deceased) was granted to Dougald on 22 February 2019. The four named defendants are the children of the deceased and were all beneficiaries under the will. The will appointed Dougald as executor of the estate. The will itself was relatively straightforward. There were a number of specific requests, but otherwise money in a bank account and the proceeds of the sale of the deceased's property in Como were to be divided equally between the four beneficiaries. There were three separate clauses requiring each of the beneficiaries other than Dougald 'to make timely arrangements for the collection, sale or disposal of all property … (stored) at my property'.
On the face of it then there was not really much for the executor to do. He had to ensure the beneficiaries of the specific legacies received their entitlement. He had to ensure his siblings collected their various goods and possessions from the Como property so that the property could be sold. He then had to arrange…

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 Knuckey v Knuckey

Details

AGLC: Knuckey v Knuckey [2022] WASC 157
Case: [2022] WASC 157
Decision Date

CaseChat Overview and Summary

Dougald Randall Knuckey applied for a commission for his services as an executor of his mother's estate. The deceased left a will appointing Dougald as the executor, and the estate was to be distributed equally among her four children. Dougald filed an originating summons seeking a commission of $26,208.40, representing 2% of the gross value of the estate. Ian Randall, one of the beneficiaries, opposed the application, arguing that the commission was vastly disproportionate to the value Dougald added to the estate. The court had to determine whether the claimed commission was just and reasonable.

The court noted that historically, equity regarded trusteeship as an honorary position, but the Crown, when creating courts of justice in Australia, introduced the system that executors were to be paid for their trouble in administering estates if the court thought fit. Section 98(1) of the Trustees Act 1962 (WA) provides that the court may allow an executor remuneration for their services as is just and reasonable. The court must consider the work undertaken by the executor in the light of the size of the estate and its complexity, deciding each case on its merits. The court considered the so-called 'Barr Smith' scale, which provides a percentage scale for assessing the remuneration for services rendered, but ultimately concluded that the proper approach is to form an overall assessment of what remuneration is just and reasonable rather than applying the scale.

After considering the evidence presented, the court found that the claim made by Dougald was not justified. While there were some difficulties with the estate, particularly in relation to the bank account, the administration was relatively straightforward. The court decided that a proper allowance for Dougald's services would be $20,000, representing slightly less than 2% of the estate.

The court also ruled on the issue of costs, stating that the costs of applying for commission should be regarded as part of the costs of the administration. Therefore, the estate would pay the executor's costs of the application on a trustee basis.

The final orders were as follows:

1. Pursuant to s 98 of the Trustees Act 1962 (WA), the plaintiff be paid a commission for his services acting as trustee in the amount of $20,000.
2. The estate pay the executor's costs of the application on a trustee basis.

Orders