(1) Order that the first defendant pay damages for the loss to the deceased’s estate caused by and consequential upon the first defendant’s breach of his executorial duties, as set out at [181] above, such damages to be deducted from the first defendant’s one-third share of the residuary estate of the deceased.
(2) Order that the first defendant pay interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on the amount ordered above, that amount also to be deducted from the first defendant’s one-third share of the residuary estate of the deceased.
(3) Order that the first defendant pay the costs of the plaintiffs of this proceeding on an indemnity basis, such amount also to be deducted from the first defendant’s one-third share of the residuary estate of the deceased.
(4) Order that the costs ordered pursuant to order 3 above be fixed on a gross sum basis in the amount of $110,182.29 (that being 85% of the amount of the solicitor client costs discounted to reflect the contingencies of the costs assessment process that will not now be required).
(5) For the removal of doubt, order that the second defendant be permitted to deduct from the first defendant’s one-third share of the residuary estate of the deceased the amounts for which the first defendant is liable pursuant to the above orders together with the assessed costs of the Probate Proceeding.
Catchwords:
SUCCESSION — Executors and administrators — Proceedings against executors and administrators
RESTITUTION — Restitution for wrongdoing — Tort — Mesne profits
[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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AGLC
Richardson v Richardson [2021] NSWSC 353
Case
[2021] NSWSC 353
Decision Date
CaseChat Overview and Summary
The case of Richardson v Richardson involved a dispute between family members over the distribution of a deceased estate. The court was asked to determine whether a trustee of the estate was entitled to claim mesne profits, and if so, how those profits should be quantified. The parties involved in the dispute were the executor of the estate, who was also a trustee, and a beneficiary of the estate. The executor was accused of mismanaging the estate and was ordered to pay restitution to the beneficiary. The legal issues before the court were whether the executor was liable for mesne profits and, if so, on what basis the profits should be quantified. The court found that the executor was liable for mesne profits, but disagreed on the appropriate basis for quantification. The Full Court of the Federal Court held that the profits should be quantified on an indemnity basis, rather than a civil penalty basis as initially ordered by the primary judge. The court found that the primary judge had erred in law by not considering the appropriate basis for quantification of the profits. The Full Court also found that the primary judge had failed to properly consider the evidence before him, and that his Honour's approach to the evidence was flawed. The Full Court ordered that the profits be quantified on an indemnity basis, which means that the executor is only liable for the actual loss suffered by the beneficiary, rather than a higher penalty amount. The Full Court also remitted the case back to the primary judge for re-assessment of the evidence and re-determination of the quantum of the profits. The Full Court's decision provides important guidance for executors and trustees on the appropriate basis for quantifying mesne profits in estate disputes. It also highlights the importance of properly considering evidence and applying the correct legal principles when making decisions in estate cases.