Parsons v Davison - [2016] NSWSC 1491

Supreme Court

New South Wales

Medium Neutral Citation: Parsons v Davison [2016] NSWSC 1491
Hearing dates: 29 July 2016
Date of orders: 21 October 2016
Decision date: 21 October 2016
Jurisdiction: Equity
Before: Robb J
Decision:
See par 29

Catchwords: PROBATE – plaintiffs sought to revoke grant of probate to the executor – whether the executor had properly administered the estate – amongst other things, the executor failed to realise estate assets in a timely fashion, paid himself commission without authorisation, failed to properly maintain accounts, and there exists a conflict between the executor’s personal interest and the administration of the estate in relation to certain shares – held there is a failure by the executor to properly administer the estate – held grant of probate of the will of the deceased made to the executor be revoked – held executor to pay the plaintiffs’ costs and no indemnity from trust allowed
Cases Cited: Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286
Mead v Watson as Liquidator for Hypec Electronics Pty Ltd [2005] NSWCA 133; (2005) 23 ACLC 718 Riccardi v Riccardi [2013] NSWSC 1655; (2013) 11 ASTLR 198
Category: Principal judgment
Parties: Kimberley Roy Parsons (first plaintiff)
Julie Percy (second plaintiff)
Murray George Davison (defendant)
Representation:
Counsel: M Sneddon (plaintiffs)
M Davison (self-represented defendant)
Solicitors: Teece Hodgson & Ward (plaintiffs)
M Davison (self-represented defendant)

File Number(s): 2015/167244
Publication restriction: None

Judgment

This is an application by the plaintiffs for the revocation of a grant of probate made by the court to the defendant, and an order that the court grant letters of administration with the will annexed to the plaintiffs, together with consequential relief.
The late Hugh Charles Davison died on 20 November 2010, leaving a last will and testament dated 2 July 1990.
By the will, the deceased appointed the defendant, Murray George Davison, his brother, as his executor.
The deceased gave the whole of his estate to the plaintiffs, Kimberley Roy Parsons and Julie Percy, and the defendant’s three children, in equal shares.
This court made a grant of probate of the deceased’s will to the defendant on 29 March 2011. A resealing of the grant was obtained on 18 October 2011 in the Supreme Court of Western Australia.
The plaintiffs’ statement of claim was filed on 5 June 2015. As at the hearing on 29 July 2016, the administration of the estate of the deceased remains incomplete.
In substance, the plaintiffs claim that the administration of the estate by the defendant has been entirely dilatory; the defendant has failed to realise estate assets in a timely way; the defendant paid himself a substantial commission without authorisation (albeit that the sum has been repaid); and the defendant has failed in his attempt to pass accounts because of the manner in which he has conducted the administration.
The principles that the court is required to apply on an application such as the present have been authoritatively confirmed by the Court of Appeal in

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 Parsons v Davison

Details

AGLC: Parsons v Davison [2016] NSWSC 1491
Case: [2016] NSWSC 1491
Decision Date: 21 October 2016

CaseChat Overview and Summary

The plaintiffs in this case sought to revoke the grant of probate to the executor of the estate of the deceased, Mr. Parsons. The dispute arose in the Supreme Court of New South Wales, with the plaintiffs alleging various breaches of duty by the executor, Ms. Davison. The plaintiffs claimed that Ms. Davison had not properly administered the estate, citing instances such as the executor's failure to realise estate assets in a timely manner, the payment of unauthorised commission to herself, the inadequate maintenance of estate accounts, and a conflict of interest concerning certain shares. The court was tasked with determining whether these allegations warranted the revocation of the grant of probate to Ms. Davison.

The primary legal issues before the court were whether Ms. Davison had fulfilled her duties as executor and whether there were grounds for revoking the grant of probate. The court had to consider the specific duties of an executor, such as the timely realisation of assets, avoidance of conflicts of interest, and the proper maintenance of accounts. Additionally, the court needed to assess the impact of Ms. Davison's actions on the administration of the estate and the rights of the beneficiaries. The court's decision hinged on whether Ms. Davison's conduct constituted a failure to properly administer the estate.

In delivering the judgment, the court found that Ms. Davison had indeed failed in her duties as executor. The court held that the executor's failure to realise estate assets in a timely fashion, the unauthorised payment of commission, and the lack of proper account maintenance were significant breaches of duty. Furthermore, the court determined that a conflict of interest existed between Ms. Davison's personal interests and the administration of the estate regarding certain shares. Consequently, the court revoked the grant of probate to Ms. Davison and ordered her to pay the plaintiffs' costs. The plaintiffs were also denied indemnity from the trust.

Orders