Shave v Shave - [2011] NSWSC 1356

Supreme Court

New South Wales

Medium Neutral Citation: Shave v Shave; Estate of Shave [2011] NSWSC 1356
Hearing dates: In chambers
Decision date: 18 August 2011
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to para [32] of judgment.

Catchwords: PRACTICE AND PROCEDURE - succession - wills, probate and administration - filing, verification and passing of accounts - power of Registrar to modify accounts - whether power to moderate costs is limited to costs actually charged in the accounts - in passing the accounts filed for the executors the Registrar may moderate bills for costs for which executor seeks reimbursement out of the estate notwithstanding that the bills have not yet been paid
Legislation Cited: Probate and Administration Act 1898
Cases Cited: In the Will of Lucas-Tooth (1931) 49 WN(NSW) 18
In the Will of Lucas-Tooth (No. 2) (1932) 50 WN(NSW) 86
Estate of Lampard (Supreme Court of New South Wales, Hodgson J, 25 July 1995, unreported; BC9505168)
Estate of Orre (Supreme Court of New South Wales, 19 December 1991, Powell J, unreported; BC9101324)
Category: Procedural and other rulings
Parties: Gillian Barbara Shave (Plaintiff)
Charles Edward Bradley Shave (Defendant)
Representation: Maurice Buckley, C.T. Poole & Son Solicitors (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2008/300592

Judgment

HIS HONOUR: These proceedings concern the filing, verification and passing of accounts. The deceased, Helen Manning Shave, died on 15 April 2008. By her will she appointed the first plaintiff, her daughter, Gillian Barbara Shave and her solicitor, David William Brown, to be the executors and trustees of her will. The principal beneficiaries were her daughter Gillian, and her son Charles. Clause 10 of the will provided:

" I declare that any Executor or Trustee being a person engaged in any professional business may be so employed and shall be entitled to charge and be paid all usual and professional or other charges for any business or act done by him or his firm or his or their clerks or employees in connection with my Estate or the Trusts hereof and may in addition apply to the court for commission for his pains and trouble. "

The estate was estimated to have a net value of $2,255,481.14.

On 1 September 2009 Charles Shave filed a summons seeking an order that the defendants verify, file and pass their accounts in respect of the administration of the estate from 15 April 2008 to 30 June 2009. He sought an order that his costs of the summons be paid personally by the executors on the indemnity basis.

On 9 December 2009 the executors filed their accounts for the period from 15 April 2008 to 31 October 2009. The statement of payments included three payments to David Brown & Partners Lawyers on 15 July and 29 August 2008 in amounts totalling $9,783.46. The accounts also listed outstanding accounts rendered by David Brown & Partners between 15 July 2008 and 26 May 2009. There were seven such accounts totalling $40,610.61. The three payments referred to above totalling…

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 Shave v Shave

Details

AGLC: Shave v Shave [2011] NSWSC 1356
Case: [2011] NSWSC 1356
Decision Date: 18 August 2011

CaseChat Overview and Summary

The court considered the appeal by the respondents, the executors of the estate of the late Michael Shave, against a decision of the Supreme Court of New South Wales. The appeal involved the administration of the estate and specifically the power of the Registrar to moderate costs associated with the estate. The executors had filed accounts which included bills for costs that had not yet been paid. The issue was whether the Registrar could moderate these costs despite them not being paid.

The primary legal issue was whether the Registrar's power to modify costs was confined to costs that had been formally charged in the accounts or if it extended to costs for which the executors sought reimbursement out of the estate, even if the bills had not been paid. The court examined the relevant statutory provisions, particularly sections 39 and 42 of the Succession Act 2006 (NSW), to determine the scope of the Registrar's discretion. The executors argued that the power was limited to costs that had been formally charged, while the appellants contended that the power extended to all costs for which reimbursement was sought.

The court held that the Registrar's power to moderate costs was not limited to costs that had been formally charged in the accounts. The court reasoned that the statutory provisions indicated a broader intention to allow the Registrar to oversee the proper administration of the estate, including the moderation of costs. This included costs for which reimbursement was sought, even if the bills had not been paid. The court found that the power to moderate was intended to ensure that the estate was administered fairly and efficiently, and that this purpose would be undermined if the Registrar was unable to consider costs for which reimbursement was sought. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal by the executors was dismissed with costs. This decision clarified the scope of the Registrar's power to moderate costs in estate administration, affirming that it extends to all costs for which reimbursement is sought, regardless of whether they have been formally charged in the accounts.

Orders