Ross v Gordon

Case [2024] ACTSC 158


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ross v Gordon

Citation: 

[2024] ACTSC 158

Hearing Date: 

8 May 2024

Decision Date: 

23 May 2024

Before:

Mossop J

Decision: 

1.    The Originating Application dated 19 February 2024 is dismissed.

2.    The plaintiff is to pay the defendant’s costs of the proceedings.

3.    Any party seeking a different costs order (including a gross sum costs order) must file an application in proceeding accompanied by written submissions limited to not more than three pages within seven days.

Catchwords: 

ESTOPPEL – ISSUE ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – issue not raised in previous proceedings before the court – estate’s ability to pay legacy to plaintiff if cheques written by the deceased unenforceable not an issue for determination in previous proceedings – issue not addressed in the court’s reasons – issue estoppel does not arise

ESTOPPEL – ANSHUN ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – failure to plead lack of funds to pay legacy not unreasonable – pleading not required to address claim in previous proceedings – where costs of previous proceedings influenced estate’s capacity to pay legacies – Anshun estoppel not established

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Entitlement of executor to seek reimbursement of legal fees incurred in administration of estate – statutory entitlement established by Trustee Act 1925 (ACT) and Court Procedures Rules 2006 (ACT) – unnecessary to determine whether legal expenses should be apportioned between the different capacities in which defendant sued

Legislation Cited: 

Administration and Probate Act 1929 (ACT), s 32

Court Procedures Rules 2006 (ACT), rr 1700, 1732

Family Provision Act 1969 (ACT), s 8

Trustee Act 1925 (ACT), s 59(4), Dictionary

Cases Cited: 

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Blair v Curran (1939) 62 CLR 464

National Trustees Executors and Agency Co. of Australasia Ltd v Barnes (1941) 64 CLR 268

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89

Ross v Gordon (No 2) [2023] ACTCA 40

Ross v Gordon (No 3) [2022] ACTSC 289

Texts Cited:

G Dal Pont, Interpretation of Testamentary Documents (LexisNexis Butterworths, 2019)

Parties: 

James Ross ( Plaintiff)

Donna Gordon as executor of the estate of Olga Hart ( Defendant)

Representation: 

Counsel

T Crispin ( Plaintiff)

W Sharwood ( Defendant)

Solicitors

Ray Swift Moutrage and Associates ( Plaintiff)

Tim Sharman Solicitors ( Defendant)

File Number:

SC 66 of 2024

MOSSOP J:  

Introduction

1․By Originating Application dated 19 February 2024, the plaintiff has sought an order pursuant to s 32 of the Administration and Probate Act 1929 (ACT) that the defendant, Donna Gordon, be removed as the executor of the estate of Olga Hart and be replaced with James Ross (the plaintiff) and Kenneth Hubert of Capon…

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Ross v Gordon [2024] ACTSC 158
Case
[2024] ACTSC 158
Decision Date

CaseChat Overview and Summary

The matter of Ross v Gordon was before the court where the plaintiff, Ross, sought to enforce a legacy from the estate of a deceased person, Gordon. Ross claimed that the executor, Gordon, was estopped from relying on a lack of funds to refuse to pay the legacy. The case was dismissed by the court, and Ross was ordered to pay the defendant's costs. The dispute centred on the executor's refusal to pay a legacy due to the estate's lack of funds, which Ross argued was estopped from being used as a defence. The court had to determine whether the executor was estopped from relying on the lack of funds in two ways: through issue estoppel and Anshun estoppel.

The legal issues the court was required to decide were whether the executor was estopped from relying on the lack of funds to refuse to pay the legacy through issue estoppel or Anshun estoppel. The court found that the issue of the estate's ability to pay the legacy, if cheques written by the deceased were unenforceable, was not an issue for determination in the previous proceedings, and thus, issue estoppel did not arise. Regarding Anshun estoppel, the court held that the failure to plead the lack of funds to pay the legacy was not unreasonable and that the pleading was not required to address the claim in the previous proceedings. The court also found that the costs of the previous proceedings influenced the estate's capacity to pay legacies, but this did not establish Anshun estoppel.

The court's reasoning was that the issue of the estate's ability to pay the legacy was not addressed in the reasons for the previous proceedings, and thus, issue estoppel did not arise. In relation to Anshun estoppel, the court found that the failure to plead the lack of funds was not unreasonable, and the pleading was not required to address the claim in the previous proceedings. The court further held that the costs of the previous proceedings influenced the estate's capacity to pay legacies, but this did not establish Anshun estoppel. The court found that the executor was not estopped from relying on the lack of funds to refuse to pay the legacy. The court dismissed the originating application and ordered that the plaintiff pay the defendant's costs of the proceedings. Any party seeking a different costs order must file an application in the proceeding accompanied by written submissions limited to not more than three pages within seven days.

Orders

Orders of the court

1. The Originating Application dated 19 February 2024 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

3. Any party seeking a different costs order (including a gross sum costs order) must file an application in proceeding accompanied by written submissions limited to not more than three pages within seven days.

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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