Wardy v NSW Trustee and Guardian

The appeal concerned an application by the applicant, Ms Wardy, for interlocutory injunctions against the NSW Trustee and Guardian, in its capacity as executor of the estate of the late Mr Wardy. Ms Wardy sought to restrain the executor from selling, encumbering, or otherwise dealing with certain real property forming part of the estate. The dispute arose in circumstances where the estate lacked sufficient liquid assets to meet its debts and administration expenses.

The primary legal issue before the Court of Appeal was whether interlocutory injunctions should be granted to restrain the executor from dealing with specific real property assets of the estate. This question was considered in light of undertakings offered by Ms Wardy, who was the primary creditor of the estate, not to seek enforcement or charge interest on her debts until the resolution of the appeal. The court also considered whether further injunctions should be made restraining the executor from dealing with other real property, taking into account an undertaking proffered by the executor.

White JA noted that an interlocutory injunction is an equitable remedy granted at the discretion of the court. His Honour considered the undertakings offered by both parties. The undertaking by Ms Wardy to defer enforcement of her debts was significant, as it addressed the immediate need for liquidity that might otherwise necessitate the sale of property. The undertaking by the executor to preserve assets was also a relevant factor. Ultimately, White JA concluded that the circumstances did not warrant the granting of the further injunctions sought by Ms Wardy, finding that the existing arrangements and undertakings were sufficient to protect the interests of the estate and its creditors pending the appeal.

The Court of Appeal refused the interlocutory injunctions sought by Ms Wardy.