Sandford v South - [2025] NTSC 16

CITATION:Sandford v South & Ors [2025] NTSC 16
PARTIES:SANDFORD, Teena Joy

v
SOUTH, Adam Bushnell
and
DAVIS, Anita
and
SANDFORD-SOUTH, Allysa

TITLE OF COURT:              SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:                  SUPREME COURT exercising Territory jurisdiction
FILE NO:2024-02077-SC
DELIVERED:  7 April 2025
HEARING DATE:                18 March 2025
JUDGMENT OF:                 Brownhill J

CATCHWORDS:

ADMINISTRATION AND PROBATE — Executor — Duties of executor - Application for removal of executor – Whether executor “unfit to act” — Whether due and proper administration of the estate in jeopardy – Executor unfit – Order for his removal
INJUNCTIONS — Quia timet injunction — Where plaintiff seeks injunction to prevent imminent and substantial damage to interests of beneficiaries under estate — Clear likelihood that future conduct will cause substantial damage – Injunction granted

Dimos v Skaftouros (2004) 9 VR 584; Lubis v Walters [2009] NTSC 23; Proud v Arkell [2019] NTSC 35; Rasco Pty Ltd v Lucas [2017] VSC 703; Trafford-Jones v McQuinn [2021] NTSC 90
Administration and Probate Act 1969 (NT) ss 26, 41
Evidence (National Uniform Legislation) Act 2011 (NT) s 190

REPRESENTATION:
Counsel:
Plaintiff:A Wyvill SC with R Sanders
First Defendant:  Self-represented
Second and Third Defendants:     C Ford SC
Solicitors:
Plaintiffs:Arafura Regional Community Solutions
First Defendant:  Self-represented
Second and Third Defendants:     Piper Grimster Jones Lawyers
Judgment category classification:    B
Judgment ID Number:  Bro2501
Number of pages:  66

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sandford v South & Ors [2025] NTSC 16

No. 2024-02077-SC

In the Estate of Darryl John South

In the matter of an application under
s 41 of the Administration and Probate Act 1969 (NT)

BETWEEN:

TEENA JOY SANDFORD

Plaintiff

AND:

ADAM BUSHNELL SOUTH
First Defendant

AND:

ANITA DAVIS
Second Defendant

AND:

ALLYSA SANDFORD-SOUTH
Third Defendant

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 7 April 2025)

The plaintiff (‘Teena’[1]) is an executor of the will of her late partner (‘Darryl’), who passed away on 10 June 2023. Teena and Darryl were in a de facto relationship from 16 May 1988 until Darryl’s death.
The first defendant (‘Adam’) is the adult son of Darryl and a former partner. The second defendant (‘Anita’) is the adult daughter of Darryl from that relationship. The third defendant (‘Allysa’) is the adult daughter of Darryl and Teena.
On 30 August 2023, probate of Darryl’s will was granted, appointing Teena, Adam and Anita as executors of the estate, which was then valued at around $8.6 million.
The estate includes a wholesale nursery business known as Darwin Plant Wholesalers (‘Business’) and various parcels of land in Lambells Lagoon, used or associated with the Business. Under the will, two of those parcels of land were specifically gifted to Adam, one was specifically gifted to Teena and the Business forms part of the residue of the estate which was gifted to Teena, Adam, Anita and Allysa in equal shares.
Teena commenced these proceedings seeking to have Adam removed as an executor of the will and restrained from entering or…

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 Sandford v South

Details

AGLC: Sandford v South [2025] NTSC 16
Case: [2025] NTSC 16
Decision Date: 7 April 2025

CaseChat Overview and Summary

The plaintiff, Teena Joy Sandford, is an executor of the will of her late partner, Darryl John South. The will appointed Teena, Adam Bushnell South and Anita Davis as executors of the estate, which was then valued at around $8.6 million. The estate includes a wholesale nursery business and various parcels of land used or associated with the Business. Teena commenced proceedings seeking to have Adam removed as an executor of the will and restrained from entering or remaining on some of the parcels of land. Teena wishes to preserve and maximise the value of the Business and its assets by continuing to operate the Business until it can be sold or wound up and the proceeds distributed to the four parties as the will provides. Adam resists Teena’s application, arguing that he should remain as an executor, and that the parcels of land specifically gifted to him in the will should be transferred to him as the will provides. Anita and Allysa support Teena’s application. They intend to commence proceedings in this Court under s 8 of the Family Provision Act 1970 (NT) seeking to amend the will to provide that the specific gifts of the three parcels of land to Teena and Adam comprise, if the executors so determine, the value of those parcels of land in lieu of their title. The legal principles applicable to the exercise of the Court’s discretion to remove an executor in s 41 of the Administration and Probate Act 1969 (NT) are not in dispute. Essentially, the Court must find that Adam is unfit to act as an executor of the estate by considering whether the due and proper administration of the estate has been put in jeopardy or prevented by reason of acts or omissions on the part of the executor. The welfare of the beneficiaries and the protection of their interests in the estate are the paramount concerns. The legal principles relating to the grant of quia timet injunctive relief, which is injunctive relief granted to restrain wrongful acts that are threatened or imminent, are not in dispute. Essentially, the Court must make factual findings and be satisfied that what Adam is intending or threatening to do will cause imminent and substantial damage to the estate. The Court must have regard to the degree of probability of the apprehended damage, its degree of seriousness and the requirements of justice between the parties. The Court found that Adam is unfit to act as an executor of the will and ordered that he be removed. The Court found that it was appropriate to order a quia timet injunction prohibiting Adam from entering or remaining on the parcels of land as sought by Teena.

Orders