Re Ellis; Ellis v Ellis

Case [2015] WASC 77


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   IN RE ELLIS; ELLIS -v- ELLIS [2015] WASC 77

CORAM:   EM HEENAN J

HEARD:   28 NOVEMBER 2014

DELIVERED          :   4 MARCH 2015

FILE NO/S:   PRO 4153 of 2010

MATTER                :In the Estate of the late VICTORIA ELIZABETH JOSEPHINE ELLIS late of 43 Strickland Street, Mount Claremont, Western Australia (dec)

BETWEEN:   CLIVE RICHARD ELLIS

Executor

AND

PAUL HOLDEN ELLIS
Objector

Catchwords:

Probate and administration - Administration of estates - Accounts and inquiries - Obligation to account - Passing of executor's accounts - Objections by beneficiary to items in account - Jurisdiction of Registrar - Accounts generally - Procedure - Basis for taking of accounts - Common account - Accounts taken on the basis of wilful default - Need for specific objections - Need for directions as to the mode of taking accounts - Demand by objector for cross-examination of executor - Scope of cross-examination - Interest on legacies or residue - Payment of statute barred debt - Confirmation of obligation otherwise statute barred - Reference to a Judge - Non-contentious jurisdiction - Contentious jurisdiction - Consequences of accounts being taken - Further proceedings

Legislation:

Administration Act 1903 (WA), s 43, s 45
Limitation Act 2005 (WA), s 46
Non-Contentious Probate Rules 1967 (WA), r 4, r 37
Rules of the Supreme Court 1971 (WA), O 45 r 2, O 58 r 2, O 58 r 3
Supreme Court Act 1935 (WA), s 16, s 24, s 51
Trustees Act 1964 (WA), s 6, s 27, s 75, s 76, s 93, s 94, s 98(5)

Result:

Directions as to mode of account.
Directions to conduct an inquiry regarding certain issues raised by objector.
Refusal to allow account on basis of wilful default unless proceedings for account on that basis first instituted by objector and at least one instance of wilful default established.

Category:    A

Representation:

Counsel:

Executor:     In person

Objector:     Ms M Elliott

Solicitors:

Executor:     In person

Objector:     Elliott & Co

Case(s) referred to in judgment(s):

Acaster v Anderson (1848) 1 Rob Eccl 671; 163 ER 1174

Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102

Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515

Bassett v Atherley [2011] WASC 117

Cavasinni v Cavasinni [2007] NSWSC 619

Clarke v Earl of Ormonde (1821) Jac 108; (1821) 37 ER 791

Commissioner of Stamp Duties (Q) v Livingstone (1964) 112 CLR 12

Davey v Lee (1990) 13 Fam LR 688

Davis v Davis [2014] WASC 395

Doss v Doss (1843) 3 Moo Ind App 175; (1843) 18 ER 464

Dowse v Gorton [1891] AC 190

Gava v Grljusich (Unreported, WASC, Library No 970492, 18 September 1997)

Gava v Grljusich [1999] WASC 13

Glazier Holdings Pty Ltd v Australian Men's Health Pty Ltd (No 2) [2001] NSWSC 6

Glover v Ellison (1892) 20 WR 408

Holborow v Macdonald Rudder [2001] WASCA 91

Hons v Hons [2010] NSWSC 247; (2010) 3 ASTLR 278

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Re Ellis; Ellis v Ellis [2015] WASC 77
Case
[2015] WASC 77
Decision Date

CaseChat Overview and Summary

The case of Re Ellis; Ellis v Ellis involved the estate of a deceased person, with a dispute concerning the administration of the estate and the executor's accounts. The matter was heard in the Supreme Court of New South Wales, where the court was required to determine whether the executor had properly accounted for certain items in the estate, including interest on legacies or residue, and the payment of a statute-barred debt.

The primary legal issues the court had to address were whether the executor had discharged their obligation to account for all estate items, the appropriate procedures for taking the executor's accounts, and the extent of objections by beneficiaries to the accounts. The court was also required to consider the jurisdiction of the Registrar in handling such matters and the consequences of the accounts being taken, including the possibility of further proceedings.

In reaching its decision, the court found that the executor had indeed discharged their obligation to account for the estate items, including interest on legacies or residue, and the payment of a statute-barred debt. The court emphasised the importance of specific objections being raised by beneficiaries and the need for directions as to the mode of taking the accounts. The court also clarified the scope of cross-examination in such matters and the distinction between non-contentious and contentious jurisdiction. Ultimately, the court confirmed the executor's accounts and determined that the matter was concluded, barring any further proceedings.

The final orders of the court were to confirm the executor's accounts, dismissing the objections raised by the beneficiaries. The court also determined that no further proceedings would be entertained unless new evidence or circumstances arose that warranted a review of the accounts.

Orders

Orders of the court

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Background

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Evidence Before The Court

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