Sampson v Sampson
[2007] WASC 85 (S)
SAMPSON -v- SAMPSON [2007] WASC 85 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 85 (S) | |
| Case No: | CIV:1187/2005 | 27 SEPTEMBER 2006, 8 MARCH 2007 & 13 MARCH 2008 | |
| Coram: | MASTER SANDERSON | 5/04/07 | |
| 13/05/08 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to repay trust $49,696 | ||
| B | |||
| PDF Version |
| Parties: | ROBERT STEWART SAMPSON as executor of the estate of MARJORY FRANCES NIMMO IAN GREGORY SAMPSON TERI-LEE LEWIS NATASHA KRISTINA SAMPSON |
Catchwords: | Taking accounts Turns on own facts |
Legislation: | Nil |
Case References: | Sampson v Sampson [2007] WASC 85 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 13 MAY 2008 FILE NO/S : CIV 1187 of 2005 MATTER : Estate of MARJORY FRANCES NIMMO late of Scarborough in the State of Western Australia (Dec)
and
Section 45 of the Administration Act 1903
- Plaintiff
AND
IAN GREGORY SAMPSON
First Defendant
TERI-LEE LEWIS
Second Defendant
NATASHA KRISTINA SAMPSON
Third Defendant
Catchwords:
Taking accounts - Turns on own facts
Legislation:
Nil
Result:
Plaintiff to repay trust $49,696
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Segler
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Mr D L Jones
Solicitors:
Plaintiff : Martin Lee Segler
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Holyoak-Roberts Legal
Case(s) referred to in judgment(s):
Sampson v Sampson [2007] WASC 85
(Page 3)
1 MASTER SANDERSON: On 5 April 2007 when I published reasons in this matter (Sampson v Sampson [2007] WASC 85), I ordered that the plaintiff should remain trustee of the trust and that he ought to account for the trust for losses consequent upon his breach of trust. Those accounts have now been taken and these reasons deal with that issue.
2 The executor claims in his affidavit of 22 May 2007 that he obeyed his mother's wishes that the second defendant should receive a motor vehicle similar to the one that she had bequeathed to the second defendant in her will. The will, dated 22 September 1995, directed by cl 3(b) that the Ford Fiesta motor vehicle was to be given to the second defendant. That vehicle was not available and the plaintiff gave to the second defendant another vehicle purchased out of the estate. In doing so, he was clearly in error.
3 The executor's authority is limited to the administration of the assets of the estate as directed by the terms of the will. It was not open to the plaintiff to act otherwise than in accordance with the terms of the will.
4 The plaintiff is now liable to the estate in an amount of $10,000 plus statutory interest at 6% from 25 March 2000. As at 25 March 2008, that was an amount of $4,800. The plaintiff should therefore compensate the estate in an amount of $14,800.
5 Clause 4 of the deceased's will gave to the executor a discretion to 'apply for the education of any beneficiary, or for the benefit of, in the case of a sick or incapacitated beneficiary during the sickness or incapacity of such beneficiary, up to three fourths of the whole of the capital and income of that part of my Estate to which the beneficiary is entitled or may in the future be entitled'.
6 It is not clear that the plaintiff has a complete understanding of the powers given to him by this clause. A reading of par 14 of his affidavit sworn 22 May 2007 suggests that he believes the funds can be advanced for the education and related activities of the beneficiaries. However, the provisions of cl 4 appear to limit the discretion of the executor to applying funds for the education of a beneficiary or, in the case of a sick child, for his or her benefit.
7 In par 11 of his affidavit, the plaintiff sets out amounts that the second defendant spent on her children (beneficiaries under the estate) from funds advanced to her by the plaintiff. As counsel for the third defendant pointed out, the plaintiff has not exercised his discretion as a trustee at all. The funds have been expended by the second defendant and
(Page 4)
- the second defendant has made the decision on what funds should be applied for her children's interests and activities.
8 Having said that, it is clear that the funds were expended for the benefit of the beneficiaries. It may be arguable that some of the payments outlined in par 11 would not easily fall within the rubric of 'education of any beneficiary'. But I am satisfied the position is arguable and I am therefore satisfied that no repayment of the moneys expended and referred to in par 11 is required.
9 Finally, there is the question of interest on funds that were improperly paid out by the plaintiff. I am not satisfied that it was the third defendant's fault which led to a failure to deposit the sum of $113,641 in an interest-bearing account. I accept the third defendant's evidence on this point and, in particular, the correspondence from the DCH Legal Group from 11 November onwards. At all times the third defendant was agreeable to opening an interest-bearing account but the second defendant, through her lawyers, did not respond to various requests regarding completion of the application forms and providing the necessary paperwork. Interest ought therefore be paid on these funds. According to the third defendant's calculations, the loss of interest, together with the shortfall of funds paid into court by the first defendant and held in accounts set up by the second defendant, amounts to $34,896. The plaintiff ought account to the trust for that amount.
10 That makes a total of $49,696 which ought be paid by the plaintiff to the trust.
11 I will hear the parties as to the precise form of orders and as to costs.
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