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Moore v Randall

Moore v Randall

Case [2012] NSWSC 184 10 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Moore v Randall & Anor [2012] NSWSC 184
Hearing dates: Friday, 10 February 2012
Decision date: 10 February 2012
Before: White J
Decision:
Refer to paras [76] and [78]-[80] of judgment.

Catchwords:
EQUITY - trustees - order for accounts - beneficiary of estate entitled to inspect accounts of estate

EQUITY - trustees - powers - discretion to pay income out of the residuary estate to intellectually disabled beneficiary for advancement and benefit in life - discretionary power to be exercised in good faith - power includes discretion to defer payment of income
WILLS AND ESTATES - administration - application for extension of time to bring proceedings under the Family Provision Act 1982 - proceedings brought by Office of the NSW Trustee and Guardian - applicant to show sufficient cause for the application not having been made within the prescribed period - delay not occasioned by the applicant personally - small estate - unexplained delays - previous litigation where present claim not made despite advice - prospects not strong - extension of time refused
Legislation Cited: Family Provision Act 1982
Protected Estates Act 1993
Cases Cited: Taylor v Farrugia [2009] NSWSC 801
Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
John v John [2010] NSWSC 937
Popovski v Kenjar [2011] NSWSC 731
De Winter v Johnstone (New South Wales Supreme Court, 23 August 1995 unreported)
Vasconelos v Bonetig [2011] NSWSC 1029
Charles v Charles (Unreported 15 March 1998) Kalmar v Kalmar [2006] NSWSC 437
In Re Estate of Nichos (dec'd); Grigoriou v Nitsos [1999] WASCA 42
Category: Principal judgment
Parties: Margaret Moore by her tutor the NSW Trustee & Guardian (Plaintiff)
Keith Robert Randall (1st Defendant)
Yvonne Carolyn Robinson (2nd Defendant)
Representation: Counsel:
E A Cheeseman (Plaintiff)
In person (Defendants)
Solicitors:
Zucker Legal (Plaintiff)

File Number(s): 2011/128673

Judgment

HIS HONOUR : These proceedings concern the estate of Lorna May Randall, who died on 12 March 1999. Probate of her will was granted to the defendants on 21 December 1999.

The plaintiff, Margaret Moore, is one of four children of the deceased. She brings the proceedings by her tutor, the NSW Trustee and Guardian. The Protective Commissioner (now the NSW Trustee and Guardian) was appointed as financial manager of the plaintiff's estate by the Guardianship Tribunal on 30 September 2005.

The summons was filed on 19 April 2011. The relief claimed in the summons is, in substance, an order pursuant to s 16(2) of the Family Provision Act 1982, for the extension of time for the commencement of proceedings for an order for provision under that Act. If that extension is given, an order is sought pursuant to s 7 of the Family Provision Act for provision for the plaintiff out of the estate and the notional estate of the deceased. In the course of submissions I was advised by counsel for the plaintiff that the order for provision that would be sought would be in the sum of $70,000.…

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 Moore v Randall

Details

AGLC: Moore v Randall [2012] NSWSC 184
Case: [2012] NSWSC 184
Decision Date: 10 February 2012

CaseChat Overview and Summary

In the case of Moore v Randall, the matter was heard in the Supreme Court of New South Wales. The dispute centred around the administration of an estate, specifically concerning the trustees' powers and the rights of beneficiaries. The central issue was whether the beneficiaries were entitled to inspect the estate's accounts and whether the trustees had the discretion to pay income from the residuary estate to an intellectually disabled beneficiary for their advancement and benefit during their lifetime.

The court examined the trustees' powers in exercising discretion to pay income out of the residuary estate. It determined that this discretion must be exercised in good faith and includes the ability to defer payment of income. The court further assessed whether the beneficiaries had a right to inspect the estate's accounts, a right traditionally upheld in equity. The court also considered the application for an extension of time to bring proceedings under the Family Provision Act 1982, made by the Office of the NSW Trustee and Guardian.

The court ruled that the beneficiaries did not have an unqualified right to inspect the estate's accounts, as this would infringe on the trustees' powers and discretion. Regarding the trustees' discretion, the court confirmed that it was to be exercised in good faith, including the ability to defer payments. The court denied the application for an extension of time, citing unexplained delays, previous litigation without raising the current claim, and the small size of the estate as factors. The prospects of the claim were also found to be weak, leading to the refusal of the extension of time.

Orders