Winn v Harding - [2017] NSWSC 239

Supreme Court

New South Wales

Medium Neutral Citation: Winn v Harding [2017] NSWSC 239
Hearing dates: 16 February 2017
Date of orders: 15 March 2017
Decision date: 15 March 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Declaratory relief to be given concerning the operation of s 145 of the Conveyancing Act.

Catchwords: WILLS AND ESTATES – administration of assets – payment of debts – mortgage registered over two properties – whether as between beneficiaries the charged properties are primarily liable to bear mortgage debt in proportion to their values – whether a contrary or other intention signified by will – Conveyancing Act 1919 (NSW), s 145
Legislation Cited: Conveyancing Act 1919 (NSW), s 145
Cases Cited: Balkin v Peck (1998) 43 NSWLR 706
Batey v Potts (2004) 61 NSWLR 274; [2004] NSWSC 606
Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226; [1998] HCA 4
Haimes v Goode (1932) 33 SR (NSW) 1
Hardoon v Belilios [1901] AC 118
In re Birch [1909] 1 Ch 787
In re Fegan [1928] 1 Ch 45
McPhie v Mackay [1975] 2 NSWLR 369
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Re Forsyth; Wyatt v Forsyth (1929) 29 SR (NSW) 411
Re Horton (deceased) [1969] NZLR 598
Re Wakefield [1943] 2 All ER 29
Sotiropoulos v Sotiropoulos [2015] NSWSC 855
Vacuum Oil Company Pty Ltd v Wiltshire (1945) 72 CLR 319
Texts Cited: R A Woodman, Administration of Assets (Second Edition, 1978)
Category: Principal judgment
Parties: Maureen Margaret Winn (Plaintiff)
Lorna Madeline Harding (Defendant)
Representation:
Counsel:
M W Sneddon (Plaintiff)
G Foster (Defendant)
Solicitors:
Blunden & Montgomery (Plaintiff)
Valenti & Valenti (Defendant)

File Number(s): 2016/107204
Publication restriction: None

Judgment

Introduction

These proceedings concern the estate of the late Karen Winn, who died on 20 April 2012 at the age of 51. The plaintiff is her mother, Maureen Winn. She is the executor and a beneficiary of the estate. The plaintiff obtained a grant of probate on 14 September 2012 in respect of a will of the deceased made on 19 January 2012.
The defendant is Lorna Harding. She was a friend and former partner of the deceased. She is also a beneficiary of the estate.
The assets of the estate include a property in Bathurst, and a property in Fairfield West. Valuations of the properties as at the date of death indicate that the Bathurst property was then worth $310,000 and the Fairfield West property was then worth $450,000. Both parties accept the accuracy of the valuations.
As at the date of death both properties were subject to a registered mortgage in favour of Bank of Western Australia Ltd (“Bankwest”). That mortgage (AF417855), which is now held by Commonwealth Bank of Australia, remains on the title to each property. The mortgage secures all money owed to Bankwest or its successors and assigns. It is common ground that at the time of her death, the deceased owed $114,759.66 to Bankwest. That amount was owed…

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 Winn v Harding

Details

AGLC: Winn v Harding [2017] NSWSC 239
Case: [2017] NSWSC 239
Decision Date: 15 March 2017

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the matter of Winn v Harding involved a dispute between the executor of an estate and a creditor regarding the payment of debts. The executor, Winn, was administering the estate of the deceased, Harding. The deceased owned two properties, each subject to a mortgage. The creditor claimed that the properties should be used to pay off the mortgage debt, arguing that as between the beneficiaries, the charged properties should bear the mortgage debt in proportion to their values. The executor contended that the will indicated a different intention regarding the payment of the mortgage debt.

The central legal issue before the court was whether, in the absence of an express or implied contrary intention in the will, the charged properties should bear the mortgage debt in proportion to their values. The court also considered whether the terms of the will indicated a different intention regarding the payment of the mortgage debt. The court needed to interpret the relevant provisions of the will and apply the relevant statutory provisions, particularly section 145 of the Conveyancing Act 1919 (NSW).

The court examined the will and determined that there was no express or implied contrary intention regarding the payment of the mortgage debt. The court held that, in the absence of such an intention, the charged properties should bear the mortgage debt in proportion to their values. The court further found that the terms of the will did not indicate a different intention regarding the payment of the mortgage debt. Accordingly, the court ruled in favour of the creditor, ordering that the properties be used to pay off the mortgage debt in proportion to their values.

Orders