Perry v Perry

Case [2021] NSWSC 1669


Supreme Court


New South Wales

Medium Neutral Citation: Perry v Perry [2021] NSWSC 1669
Hearing dates: 15 – 18 October 2018, 1 - 5 June 2019 and 14 April 2020. Final submissions received 18 August 2021.
Decision date: 17 December 2021
Jurisdiction:Equity
Before: Robb J
Decision:

See pars [500]-[504]. It will be necessary for the Court to make orders to give effect to these reasons after receipt of draft short minutes of order from the parties. Those short minutes of order should provide for a mechanism for the Court to deal with the question of costs, if the parties are unable to agree on that subject.

Catchwords:

CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where defendant appointed administrator of intestate estate 45 years ago — Where defendant has not yet finalised administration of estate — Where primary asset in intestate estate was land — Where plaintiff beneficiary alleged defendant has maladministered estate and sought accounting on basis of wilful default — Where evidence fallible and contemporary documents lacking — Where findings of credibility practically not possible — Where Court refused to order accounting unless defendant administrator pursues application for account to limit interest of estate in land to its unimproved capital value

CIVIL PROCEDURE — Probate and administration of estates — Administration suit — Where plaintiff beneficiary sought revocation of grant of letters of administration to defendant administrator and appointment of replacement administrator — Where grant made 45 years ago — Where intervening events no longer necessitate orders sought — Where Court refused to make orders sought

EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Power to provide for maintenance and advancement of minor beneficiaries — Where defendant administrator used beneficiaries’ entitlements in estate to provide for their maintenance and advancement during their minority — Where plaintiff beneficiary argued defendant administrator not entitled to do that — Where plaintiff beneficiary attained majority over 20 years ago — Where defendant administrator single parent with limited source of income — Where Court found orders can be made authorising trustee to apply income of trust for maintenance, education and advancement of minor beneficiaries

Legislation Cited:

Administration of Estates Act 1954 (NSW)

Evidence Act 1995 (NSW)

Interpretation Act 1987 (NSW)

Limitation Act 1969 (NSW)

Probate and Administration Act 1898 (NSW)

Trustee Act 1929 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andrews v Partington (1791) 3 Bro CC 401; 29 ER 610

Barlow v Grant (1684) 1 Vern 255; 23 ER 451

Brown v Smith (1878) 10 Ch D 377

Campbell v Campbell [2015] NSWSC 784

Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677

Clay v Clay (2001) 202 CLR 410; [2001] HCA 9

Countess of Bective v The Federal Commissioner of Taxation (1932) 47 CLR 417

Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Dark v Dark [2016] NSWSC 1223

Davis v Davis [2014] WASC 395

Department of Health and…

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Perry v Perry [2021] NSWSC 1669
Case
[2021] NSWSC 1669
Decision Date

CaseChat Overview and Summary

The parties involved in this case were the plaintiff, Perry, and the defendant, also Perry. The dispute centered around the administration of an intestate estate, with the plaintiff alleging that the defendant, who had been appointed as the administrator of the estate over 45 years ago, had maladministered the estate and sought an accounting based on wilful default. The case was heard in the court. The legal issues that the court had to decide included whether the defendant had indeed maladministered the estate, the extent of the plaintiff's claims, and whether the court should order an accounting or revoke the grant of letters of administration.

The court first considered the plaintiff's allegations of maladministration. It noted that the evidence presented was fallible, and there were few contemporary documents available. As a result, the court found it practically impossible to make findings of credibility. The court also considered the plaintiff's request for an accounting of the estate. However, the court refused to order an accounting unless the defendant pursued an application to limit the interest of the estate in land to its unimproved capital value. The court also considered the plaintiff's request for the revocation of the grant of letters of administration and the appointment of a replacement administrator. However, the court found that the intervening events no longer necessitated the orders sought by the plaintiff.

The court found that the defendant administrator had used the beneficiaries' entitlements in the estate to provide for their maintenance and advancement during their minority. The plaintiff argued that the defendant was not entitled to do that, but the court found that orders can be made authorising the trustee to apply the income of the trust for the maintenance, education, and advancement of minor beneficiaries. The court also found that the defendant was a single parent with a limited source of income, which made it difficult for her to provide for the maintenance and advancement of the minor beneficiaries without using the estate's assets. The court concluded that the defendant's actions were reasonable and did not amount to maladministration of the estate. The court therefore refused to make the orders sought by the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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