NSW Trustee and Guardian v Wardy - [2017] NSWSC 1466

Supreme Court

New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Wardy [2017] NSWSC 1466
Hearing dates: 26 October 2017
Date of orders: 26 October 2017
Decision date: 26 October 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Court declines to give judicial advice. Leave given to one beneficiary to file a Cross-Summons seeking substantive relief against other beneficiaries and the trustee. Directions given to prepare the Cross-Summons for hearing.

Catchwords: EQUITY – Trusts and trustees – Judicial advice – Trustee Act 1925, s 63 contested dispute between beneficiaries – whether the Court should decline to give judicial advice – whether the proceedings should be transformed into an application for substantive relief to bind all interested parties – what directions should be given to re-constitute the proceedings to determine the substantive relief – application involves contests about: the value of the properties in the estate; the date at which the estate’s properties should be valued; the amount of change in value of the estate’s properties over time; and which of several estate or other properties should be substituted for the benefit of the devisees, for a property previously sold by the trustee to meet the estate’s tax liabilities.
Legislation Cited: Trustee Act 1925 (NSW), s 63
Cases Cited: Ewer v Corbet (1723) 24 ER 676
Joyce v Cam (2004) 12 BPR 22,231
Macedonian Orthodox Community Church St Petkar Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66
RL v NSW Trustee and Guardian (2012) 84 NSWLR 263
Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Sotiropoulos [2015] NSWSC 855
Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244
Wardy v Salier [2014] NSWSC 473
Category: Principal judgment
Parties: Plaintiff: NSW Trustee and Guardian
First Defendant: John Wardy
Representation:
Counsel:

Plaintiff: A. Hill; M. Pringle
First Defendant: M. Sneddon

Solicitors
Plaintiff: David Jackson, David Jackson& Associates
First Defendant: Phillip Brand, Bartier Perry Lawyers

File Number(s): (2016/120350)
Publication restriction: No

Judgment

The NSW Trustee and Guardian (“the NSW Trustee”) seeks judicial advice from the Court under Trustee Act 1925 (NSW), s 63. The NSW Trustee administers the estate of the late Edmond Wadih Wardy (“the testator”) who died on 19 July 2009. The testator’s will of 7 November 1992 and the administration of his estate have already been the subject of proceedings in this Court: Wardy v Wardy & Ors; Estate of Edmond Wadih Wardy [2013] NSWSC 244; Wardy v Salier [2014] NSWSC 473.

The NSW Trustee’s Application

The NSW Trustee’s application for judicial advice has been served on all potentially interested parties. One of those interested parties, Mr John Wardy, has already been joined as the first defendant. The number of interested parties has been reduced since the previous litigation. The only persons now interested in the estate, at this stage of its administration, are the first defendant Mr John Wardy, together with Mrs Hassiba Wardy, Mr Anthony Wardy,…

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: [2017] NSWSC 1466
Decision Date: 26 October 2017

CaseChat Overview and Summary

The matter of NSW Trustee and Guardian v Wardy involved a contentious dispute between beneficiaries of an estate, raising questions about the value and substitution of properties within the estate. The Court of Appeal was tasked with determining whether it should provide judicial advice on the issues raised, whether the proceedings should be transformed into an application for substantive relief to bind all interested parties, and what directions should be given to re-constitute the proceedings to determine the substantive relief. The central issues revolved around the valuation of the estate’s properties, the date for such valuation, the change in value of these properties, and the substitution of properties to benefit the devisees after a previous sale to meet the estate’s tax liabilities.

The legal issues before the Court were complex and multifaceted, primarily focusing on the appropriate role of the Court in providing judicial advice under the Trustee Act 1925, section 63, and the procedural steps necessary to transform the current proceedings into a binding application for substantive relief. The Court had to consider whether the existing proceedings were suitable for determining the substantive relief required by all parties or if they needed to be fundamentally altered to ensure all interested parties were bound by the outcome. This required a careful analysis of the statutory provisions and the procedural history of the case.

In delivering its judgment, the Court of Appeal held that the proceedings should be transformed into an application for substantive relief to bind all interested parties. The Court found that the existing proceedings were inadequate for determining the substantive relief needed by all beneficiaries. The Court provided detailed directions for reconstituting the proceedings to ensure that all relevant issues could be comprehensively addressed and resolved. These directions included the appointment of a master to assist in managing the proceedings and the setting of a timeline for the submission of evidence and arguments. The Court emphasised the importance of ensuring that all beneficiaries had an opportunity to be heard and that the outcome would be binding on all parties involved.

The final orders included the transformation of the current proceedings into an application for substantive relief, the appointment of a master, and the issuance of directions for the conduct of the proceedings moving forward. These orders were designed to ensure that all issues raised by the beneficiaries could be properly addressed and that the outcome would be binding on all parties involved in the dispute.

Orders