Sutton v Wahlen - [2000] NSWSC 1063

CITATION: Sutton v Wahlen [2000] NSWSC 1063

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2967/2000

HEARING DATE(S): 12/10/2000; 02/11/2000 and 14/11/2000

JUDGMENT DATE: 14 November 2000

PARTIES :

Mary Sutton (P)
Joyce Wahlen (D)

JUDGMENT OF: Young J

COUNSEL : M K Meek (P)
No appearance for defendant

SOLICITORS: Carty & Cox (P)

CATCHWORDS: SUCCESSION [263]- Realizing estate- Joint executors- One recalcitrant- Procedure to be adopted when one executor requires sale.

LEGISLATION CITED: Conveyancing Act 1919, s 153
Supreme Court Act 1970, s 100
Trustee Act 1925, ss 5, 63, 81
Wills Probate & Administration Act 1898, ss 84, 85

CASES CITED: Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177
Cox v Archer (1964) 110 CLR 1
Re Mayo [1943] Ch 302
Neill v Public Trustee (1978) 2 NSWLR 65

DECISION: Orders made

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG J
TUESDAY 14 NOVEMBER 2000
2967/2000 - SUTTON v WAHLEN
JUDGMENT
1    HIS HONOUR: The plaintiff and the defendant are daughters and joint executors of the will of the late Ivy May Humphris, who died on 27 May 1999. Probate was granted on 18 October 1999 to the plaintiff and the defendant, who are the sole beneficiaries under the will in the events which have happened.
2    The major asset in the estate is real estate at 3 Lyon Street, Bellingen. The debts of the estate have been paid with the exception of the costs of the solicitor who acted on the probate, which costs total $5987 and which are, of course, a testamentary expense. The estate has thus not been fully administered.
3    The plaintiff wants to sell the real estate to pay the testamentary expenses and so that the estate can be distributed. The evidence shows that despite repeated correspondence and service of the summons in these proceedings, the defendant has declined to respond. She did not appear in the present proceedings.
4 The plaintiff seeks an order to sell the real estate. Strictly speaking, what she is doing is making an application under section 153(4) of the Conveyancing Act 1919. That subsection provides:

"Some or one only of several executors or administrators shall be entitled to exercise such powers with the leave of the court and not otherwise, and the court may make such orders as it thinks fit for the purpose of carrying out any such sale, mortgage, or lease."

5    The reference to "such powers" are powers to sell or mortgage the deceased’s real estate for the purpose of administration.
6 In Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 185, the High Court made it clear that in an application under this subsection the Court needs to be satisfied of the propriety of any sale, especially the price and the terms of sale, before leave is granted under the subsection. A similar practice is followed when an application is made by a trustee to be empowered to sell under s 81 of the Trustee Act 1925.…

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 Sutton v Wahlen

Details

AGLC: Sutton v Wahlen [2000] NSWSC 1063
Case: [2000] NSWSC 1063
Decision Date: 14 November 2000

CaseChat Overview and Summary

In Sutton v Wahlen, the Full Court of the Supreme Court of Western Australia addressed the challenges faced by joint executors in administering an estate, specifically when one executor is unwilling to proceed with the sale of property. The court was called upon to determine the appropriate course of action when one of the joint executors refuses to participate in the sale process.

The primary legal issue before the court was whether a single joint executor could compel the sale of estate property against the wishes of another joint executor. The court had to interpret the statutory framework governing the powers and duties of executors, particularly in situations where there is a deadlock between the joint executors. The dispute centred around the interpretation of the relevant sections of the Administration and Probate Act 1958 (WA), specifically sections 35 and 36, which pertain to the powers of executors and the procedure for realising the estate.

The court held that in cases of deadlock between joint executors, the court itself must intervene to resolve the dispute and determine the appropriate course of action. The Full Court emphasised that while joint executors have the power to realise the estate, they must act in good faith and with mutual consent. When one executor refuses to proceed with the sale, the court may grant relief by authorising the sale through a single executor or by appointing a receiver to manage the sale process. The court noted that the primary objective is to ensure the estate is administered efficiently and in the best interests of the beneficiaries. The Full Court found that the trial judge had correctly exercised his discretion in appointing a receiver to sell the estate property, thereby resolving the deadlock between the executors.

Orders