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See v Hardman

See v Hardman

Case [2002] NSWSC 287 12 April 2002

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CITATION: SEE v HARDMAN & ANOR [2002] NSWSC 287

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 3682 of 2001

HEARING DATE(S): 20, 21, 22, 25, 26, 27 & 28/3/02

JUDGMENT DATE: 12 April 2002

PARTIES :

Louise Mary See - Plaintiff
William Patrick Hardman - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : Oakes SC and Fendekian - Plaintiff
Whittle SC and BJ Burke - Defendant

SOLICITORS: Watson & Watson - Plaintiff
Hickson Wisewoulds - Defendant

CATCHWORDS: TRUSTS and TRUSTEES - removal of trustee - application for removal of trustee of will on grounds of failures to investigate possible claims arising out of transactions by testatrix - review of information available to trustee and to court - no reasonable basis for supposed claims - removal of trustee refused. - WILLS PROBATE and ADMINISTRATION - Executor - removal of executor - removal refused.

CASES CITED: Miller v. Cameron (1936) 54 CLR 572
Letterstedt v. Broers & Anor (1884) 9 App Cas 371
Hunter v. Hunter & Anor [1938] NZLR 520
McLean v. Burns Phillip Trustee Co. (1985) 2 NSWLR 623
Pope v. DRP Nominees Pty Ltd (1999) 74 SASR 78
Donowa v. Caddell (Court of Appeal Unreported 2 June 1980).
Mavrideros v. Mack (1998) 45 NSWLR 80
Bates v. Messner (1967) 67 SR (NSW) 187
In the Goods of Loveday [1900] P 154

DECISION: Judgment for defendant - see [83]

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 12 APRIL 2002

3682/01 LOUISE MARY SEE v. WILLIAM PATRICK HARDMAN

JUDGMENT

1 HIS HONOUR: Florence Amy Hardman of Balmain, hotel proprietor, aged 83 years, died at St Vincent’s Private Hospital Darlinghurst on 25 May 2000 and probate of her last will dated 24 March 2000 was granted by this Court on 25 July 2000 to the defendant William Patrick Hardman senior, her only surviving son.

2 The will revoked all previous dispositions and appointed the defendant trustee and executor. By cl.3 Mrs Hardman gave her jewellery to her three daughters in equal shares. By cl.4 Mrs Hardman left the freehold of the Unity Hall Hotel at 292-294 Darling Street Balmain to her four surviving children in equal shares as tenants in common. The plaintiff, the defendant and their sisters Mrs Bernadette Deane and Mrs Maree Bell are the beneficiaries of this gift. The gift was “… subject nevertheless to any lease or agreement to grant a lease which I may have entered into in respect of the said property and subject to any mortgage which I may give or have given in order to secure borrowings of William Patrick Hardman (junior)”. William Patrick Hardman junior, who was born in 1972, is the grandson of Mrs Hardman and the son of the defendant. Clause 5 of the Will gave the rest and residue of the estate to her trustee to convert into money and divide the proceeds of conversion after payment of debts and funeral expenses into five equal shares; one share to each of her surviving children…

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 See v Hardman

Details

AGLC: See v Hardman [2002] NSWSC 287
Case: [2002] NSWSC 287
Decision Date: 12 April 2002

CaseChat Overview and Summary

The applicants sought the removal of the respondent as the trustee and executor of the will of the late Ms. See, on the basis that he had failed to investigate possible claims arising from transactions conducted by Ms. See during her lifetime. The matter was heard in the Supreme Court of Western Australia. The applicants contended that the respondent had neglected his duties in not exploring these claims, which they believed could have resulted in additional funds for the estate. They argued that his failure to do so warranted his removal from office.

The primary legal issue was whether the respondent's conduct constituted a failure to properly administer the estate, thereby justifying his removal. The court considered the evidence regarding the transactions in question and the steps the respondent had taken to investigate them. It was necessary to determine if the respondent's actions were reasonable and in line with his duties as trustee and executor. The court also had to assess whether the supposed claims had a reasonable basis and if the respondent's failure to investigate them was indeed a ground for his removal.

The court examined the information available to both the respondent and itself. It found that the respondent had acted reasonably in his investigation of the transactions, and there was no reasonable basis for the supposed claims. The court held that the respondent's conduct did not warrant his removal, as he had fulfilled his duties as trustee and executor to the satisfaction of the court. The applicants' argument that the respondent's failure to investigate potential claims justified his removal was not substantiated by the evidence.

The court dismissed the application for the removal of the respondent as trustee and executor. The respondent was to continue in his roles, as his actions were deemed appropriate and in accordance with his duties. The court's decision emphasised the importance of trustees and executors conducting thorough investigations into potential claims, but also highlighted that not every perceived failure to investigate results in their removal.

Orders