Ronald Allen Smith v Joyce Smith - [2014] NSWSC 582

Supreme Court

New South Wales

Medium Neutral Citation: Ronald Allen Smith and Anor v Joyce Smith and Others [2014] NSWSC 582
Hearing dates: 12, 13 May 2014
Decision date: 13 May 2014
Jurisdiction: Equity Division
Before: Sackar J
Decision: See Paragraph 23
Category: Principal judgment
Parties: Ronald Allen Smith - first plaintiff
Neville Roland Smith - second plaintiff
Joyce Smith - first defendant
Michael Christopher Bingham (as executor) - second defendant
Rosemary Ann Danby - third defendant
Derek George Danby - fourth defendant
Representation: Counsel:
A Bulley - plaintiffs
J Mitchell - defendants
Solicitors:
Andreyev Lawyers - plaintiffs
Low Doherty and Stratford - defendants

File Number(s): 2012/276891

Judgment

His Honour

Yesterday morning at the commencement of this trial I raised with counsel for the first time the question of whether, instead of proceeding with the hearing which was then fixed for three days, the better course would be to order an account pursuant to UCPR rule 46.3 so that one could test objectively and precisely what was left out of the estate at the end of the day. Counsel for the plaintiffs embraced that approach and as far as I understood it, supported such an approach. Counsel for the defendants opposed the approach on the day, but it is true had no prior warning from me or anyone else that I was thinking about such a matter, or indeed would have proposed such a course.

Entirely appropriately, this morning counsel for the defendant has sought to persuade me that the orders or order for an account which I propose in a moment to make should be vacated, and that I should recommence the hearing of the merits of the matter.

Prior to yesterday morning I carefully read the materials provided in the Court Book, and I also read the submissions provided by both sides. The submissions are detailed and leave open a number of, in my view, difficult and complex legal questions in relation to each of the defendants who have been joined in these proceedings.

So far as the second defendant is concerned, Mr Bingham, he was the long term accountant and he was the executor at the date of probate. He was appointed as such pursuant to a will executed by the deceased as his last will and testament in or about January 2008. It is only on an affidavit basis, as I have already said in the course of argument, that I can see some deficiencies in relation to the liability on his part in due course, but of course I have no firmly concluded view.

So far as the third and fourth defendants are concerned, they are respectively the daughter and son-in-law of the first defendant. There is no doubt that they received certain benefits from the first defendant which can at the moment, as far as I am aware, be traced back to proceeds liquidated from the Macquarie Bank account in respect of which there was a large shareholding as at 2008 for approximately $1…

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 Ronald Allen Smith v Joyce Smith

Details

AGLC: Ronald Allen Smith v Joyce Smith [2014] NSWSC 582
Case: [2014] NSWSC 582
Decision Date: 13 May 2014

CaseChat Overview and Summary

In Ronald Allen Smith and Anor v Joyce Smith and Others, the plaintiffs, Ronald Allen Smith and Neville Roland Smith, sought to challenge the actions of the defendants, Joyce Smith, Michael Christopher Bingham, Rosemary Ann Danby, and Derek George Danby, in relation to the estate of the deceased, the plaintiffs' father. The case raised complex issues concerning fiduciary obligations and the equitable distribution of assets within the estate. The plaintiffs alleged that the first defendant, Joyce Smith, had breached fiduciary duties owed to the estate, particularly in relation to the management and distribution of shares held in the Macquarie Bank account. The primary dispute was whether Joyce Smith, as the widow of the deceased, owed fiduciary duties to the estate and, if so, whether she had breached those duties by liquidating shares and spending the proceeds for her benefit.

The court was required to determine whether Joyce Smith, as the widow and executor of the deceased's will, owed fiduciary duties to the estate, and if so, whether these duties had been breached. The court also needed to assess the extent of any breaches and the potential remedies available to the plaintiffs. Furthermore, the court had to consider the actions of the other defendants, Rosemary Ann Danby and Derek George Danby, who were the deceased's daughter and son-in-law, respectively, in light of any alleged benefits they may have received from the first defendant.

The court found that the proceedings could benefit from an accounting to determine the precise financial state of the estate as of the present. This approach aimed to clarify the assets available for distribution and to ensure that any potential remedies could be effectively applied. The court considered that an accounting would provide a clear understanding of the financial situation, which would be beneficial in resolving the dispute pragmatically. The judge ordered an accounting to be conducted, believing it to be a more efficient way to manage the case and avoid protracted litigation. The court rejected the defendants' application to vacate the order for an account and directed the parties to cooperate in the accounting process.

The court's decision focused on the practicalities of the estate's financial situation and the potential for a remedy that would be both effective and proportionate to any proven breaches of fiduciary duty. By ordering an account, the court aimed to ensure that the parties understood the true state of the estate, thereby facilitating a more reasoned and potentially cost-effective resolution of the dispute. The final orders were made in accordance with the short minutes of order, which were proposed by the plaintiffs and opposed in principle by the defendants.

Orders