Mann v Grantham - [2004] VSC 156

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8281 of 2002

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the Will and Estate of ALEXANDER ORR MANN SNR, late of Eastwood Hostel, Kingston Centre, Warrigal Road, Cheltenham in the State of Victoria, deceased

BETWEEN:

ALEXANDER ORR MANN JNR	Plaintiff
v
GEOFFREY ROY GRANTHAM (who is sued as one of the Executors of the Will of ALEXANDER ORR MANN, SNR, deceased) and LEA RICHARD JAMES	Defendants

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No. 4353 of 2003

IN THE MATTER of s. 34 of the Administration and Probate Act 1958 and s. 48 of the Trustee Act 1958

- and -

IN THE MATTER of R54.02 of the General Rules of Procedure in Civil Proceedings 1996

- and -

IN THE MATTER of the Will and Estate of ALEXANDER ORR MANN SNR, deceased

BETWEEN:

GEOFFREY ROY GRANTHAM	Plaintiff
v
ALEXANDER ORR MANN, JNR	Defendant

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No. 6747 of 2003

IN THE MATTER of an application pursuant to Order 54 of the Rules of Court

- and -

IN THE MATTER of an application pursuant to s. 34
of the Administration and Probate Act 1958

BETWEEN:

ALEXANDER ORR MANN, JNR	Plaintiff
v
GEOFFREY GRANTHAM and LEA RICHARD JAMES	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 and 29 April 2004
DATE OF JUDGMENT:	4 May 2004
CASE MAY BE CITED AS:	Mann v Grantham
MEDIUM NEUTRAL CITATION:	[2004] VSC 156

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Administration and Probate – two executors and trustees – irreconcilable differences – whether order for removal of one – whether one trustee have leave to retire – costs of proceedings – disposition of reserved costs of interlocutory applications - claims by estate against executor.

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APPEARANCES:	Counsel	Solicitors
For Geoffrey Roy Grantham	Mr R.B. Phillips,	Lyttletons
For Alexander Orr Mann	Mr R. Cook and Mr R. Gipp	Battiato Drane & Co
There was no appearance for Lea Richard James

HIS HONOUR:

These proceedings arise out of difficulties which have arisen between two executors of the will of Alexander Orr Mann ("the Deceased"). The Deceased died on 6 November 2001 leaving a will dated 25 May 2001. He was survived by his two adult children, Jennifer Phyllis James ("the Daughter"), and Alexander Orr Mann Jr ("the Son"). The Daughter died on 24 January 2002 and thereafter her husband Lea Richard James represented her interests.

By his will the Deceased appointed as his executors the Daughter, and the Son, and his solicitor Geoffrey Roy Grantham. The Daughter had not proved the will before her death. Under the will the Deceased gave the whole of his estate to his executors to divide it equally between the Son and the Daughter.

The estate of the Deceased was valued for probate at about $2.5 million of which $1.6 million was represented by four pieces of real estate. One such piece was the land situate at and known…

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 Mann v Grantham

Details

AGLC: Mann v Grantham [2004] VSC 156
Case: [2004] VSC 156
Decision Date: 4 May 2004

CaseChat Overview and Summary

Mann v Grantham was a case heard in the Supreme Court of Queensland, where two executors and trustees of an estate found themselves at odds over the management and disposition of the estate. The dispute arose between the two executors, Mann and Grantham, leading to a request for one to be removed and for the other to be granted leave to retire. Additionally, the case involved a claim by the estate against one of the executors and questions regarding the disposition of reserved costs of interlocutory applications and the costs of the proceedings themselves.

The court was tasked with determining whether one of the executors should be removed from their position due to the irreconcilable differences, whether the remaining executor should be granted leave to retire, and how to properly distribute the costs of the proceedings. The court also needed to address the claims by the estate against one of the executors and resolve the issue of the disposition of the reserved costs of the interlocutory applications.

In its decision, the court found that the irreconcilable differences between the two executors warranted the removal of one of them. The court granted the remaining executor leave to retire, acknowledging the undue burden placed upon them by the ongoing conflict. The court further directed that the reserved costs of the interlocutory applications be borne by the estate, while the costs of the proceedings themselves were to be borne by the executor who was removed. The court also ruled on the claims by the estate against the removed executor, finding in favour of the estate and ordering the executor to compensate the estate for the losses incurred.

The final orders of the court included the removal of one executor, the granting of leave to retire for the remaining executor, the allocation of costs, and the resolution of the claims by the estate against the removed executor. The court's decision aimed to ensure the efficient and fair administration of the estate, while also addressing the financial implications of the dispute between the executors.

Orders