RHONDA RICHARDSON AND OTHERS (according to the attached schedule)	Plaintiffs
v
KERRY OLSEN (as Legal Personal Representative of the Estate of the late DOROTHY IRENE EDWARDS)	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2017
DATE OF JUDGMENT:	8 March 2018
CASE MAY BE CITED AS:	Richardson & ors v Johnson & ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 85

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WILLS AND ESTATES – Application by beneficiaries under s 34 of the Administration and Probate Act 1958 (Vic) for removal of executors – Failure of executors to respond to beneficiaries’ requests for information concerning the administration of estate – Whether executors are required to account to beneficiaries in relation to administration of estate, including where hostility exists between executors and beneficiaries – Czapp v Cassar and Caldwell [2015] VSC 111, referred to – Denby v Power & Anor [2016] VSC 535, referred to – Re Anthony; Rogan v Rogan [2017] VSC 668, referred to – Letterstedt v Broers (1884) 9 App Case 371, referred to – Solicitor’s fees covered costs incurred from administration of the estate in addition to his time and expenses in dealing with beneficiaries’ complaints against him to the Legal Services Commissioner and in defending summons for taxation of costs – Whether executors improperly incurred costs by agreeing to the charging of excessive solicitors’ fees for the estate’s administration, with effect of eroding estate’s funds – Executors breached duty to beneficiaries – Executors removed.

COSTS – Application by beneficiaries for taxation with respect to bills rendered to deceased estate by solicitor for the estate – Whether beneficiaries have standing – Whether beneficiaries are out of time to bring proceedings – Whether beneficiaries meet definition of a ‘third party payer’ under s 3.4.2A of the Legal Profession Act 2004 (Vic) - Hamilton v Russell Kennedy Pty Ltd (a firm) (‘Hamilton’) [2012] VSC 176, referred to - Amos v Ian K Fry & Company [2010] QCA 131, referred to – Legal Services Commissioner v Wright [2010] QCA 321, referred to – Legal Profession Act 2004 (Vic), s 3.4.2A and 3.4.38(6) – Beneficiaries had no standing to issue proceeding – Whether proceeding brought out of time – Whether extension of time would be allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Buchanan	Callea Pearce
For the Defendant	Mr B Gillies	Peter W Johnson

HER HONOUR:

There are two proceedings before me, each concerning an underlying dispute with respect to the administration of a deceased estate.…

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 Richardson v Johnson

Details

AGLC: Richardson v Johnson [2018] VSC 85
Case: [2018] VSC 85
Decision Date: 8 March 2018

CaseChat Overview and Summary

The case of Richardson v Johnson involved an application by beneficiaries under section 34 of the Administration and Probate Act 1958 (Vic) to remove the executors of an estate due to their failure to respond to requests for information about the estate's administration. The beneficiaries alleged that the executors had breached their duties by incurring excessive solicitors' fees that significantly reduced the estate's funds, and by not accounting to the beneficiaries. This case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the executors were obligated to account to the beneficiaries, even in the presence of hostility between them. The court examined the executors' duty to beneficiaries, including their responsibility to manage the estate's finances prudently and to provide necessary information. The court also had to determine if the beneficiaries had standing to challenge the executors' conduct and if the proceedings were brought within a reasonable time. The case drew on several precedents, including Czapp v Cassar and Caldwell, Denby v Power & Anor, and Re Anthony; Rogan v Rogan, to assess the executors' conduct and the beneficiaries' rights.

The Supreme Court of Victoria found that the executors had indeed breached their duties by incurring excessive solicitors' fees, which led to a substantial erosion of the estate's funds. The court ruled that the executors were required to account to the beneficiaries and that their failure to do so justified their removal. The court also concluded that the beneficiaries did not have standing to challenge the executors' conduct as they were not out of time to bring the proceedings, and that an extension of time would not be allowed. The court referred to Hamilton v Russell Kennedy Pty Ltd, Amos v Ian K Fry & Company, and Legal Services Commissioner v Wright to support its decision on the beneficiaries' standing and the timeliness of their application.

The court ordered the removal of the executors and directed that the executors' fees be taxed, ensuring that the beneficiaries' interests were protected and the estate was administered properly. The beneficiaries' application for costs was also considered, and the court ruled that the executors' costs should be taxed, including the fees charged by the solicitor for the estate's administration and the costs incurred in defending complaints against the solicitor.

Orders