Bennett v Bennett

[2000] NSWSC 868

CITATION:	Bennett v Bennett [2000] NSWSC 868
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3648 of 2000
HEARING DATE(S):	21 August 2000
JUDGMENT DATE:	21 August 2000
PARTIES :	Reena Maree Bennett (Plaintiff) Maeva Ann Bennett (Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr I E Davidson (Plaintiff) Ms P A Koroknay (Defendant)
SOLICITORS:	Giles Payne (Plaintiff) In person (Defendant)
CATCHWORDS:	TRUSTS - executors - rights powers and duties - sale of trust real estate - dispute between co-executors where one insisted purchaser pay proceeds of sale direct to beneficiaries as condition of settlement of sale - whether right to insist on that condition - power to appoint agent to collect purchase moneys
DECISION:	See paragraph 14

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

MONDAY 21 AUGUST 2000

3648/00 REENA MAREE BENNETT v MAEVA ANN BENNETT ESTATE OF EDNA RUTHERFORD-CLARK GEARY

JUDGMENT

1    HIS HONOUR: These proceedings concern the estate of Edna Rutherford-Clark Geary who died on 20 June 1999.

2    She appointed her two daughters, who are the plaintiff and defendant in these proceedings, as her executors. The first grant of probate was made to the defendant with leave reserved to the plaintiff to come and prove, which she did, and obtaining a grant on 18 April 2000.

3    Unfortunately, the plaintiff and the defendant, although they are sisters, do not get on and there have been difficulties in the administration of the Estate.

4    The present difficulties arise on the sale of property 2 Douglas Street, Randwick owned by the deceased. Under her will the deceased gave the net proceeds of sale of that property to the executors on trust for such of her grandchildren who survived her and attained the age of 21 years. There are five such children. The property has been sold and settlement is due tomorrow.

5    The defendant has up to date refused to allow settlement to proceed unless the net proceeds of sale are paid by the purchaser by cheques in equal shares to each of the five beneficiaries. As I understand it, there is the same requirement as to the deposit which has been held by the Messrs Giles Payne & Co, the solicitors for the plaintiff, who it was agreed would act on the sale.

6    There are disputes about the liability of the plaintiff to pay rent for her occupation of the property and presumably as to whether or not the five beneficiaries are entitled to share such rent or occupation fee. There seem to have been other arguments about the sale of the other assets in the Estate which at least on the Probate documents were limited to furniture and jewellery and a small bank account. The costs and administration expenses would be paid out of those residuary assets.

7    It is the duty of executors and trustees to act jointly and together. If they insist on fighting each other then they can do so at their own expense but not at the expense of the Estate. If they insist on having separate representation, once again they are entitled to do so but not necessarily at the expense of the Estate. That is something which they do not appear to have realised.

8    So far as the present application is concerned, what the plaintiff seeks is orders which will bring about the settlement. Both plaintiff and defendant are, of course, contractually bound to the purchaser and it would be ridiculous to suggest that anything should be placed in the path of settlement taking place tomorrow.

9    What is placed in the path of settlement taking place tomorrow is the requirement of the defendant that the proceeds of sale be paid direct to the beneficiaries. She has no right whatever to insist on that. It is the duty of trustees to get in the assets of the Estate and the proceeds of sale of those assets. I should add that the deceased provided for that because her will gives the relevant property to the trustees to sell it and to hold the proceeds of sale upon trust for the relevant grandchildren. They are not complying with that if in some way they direct the proceeds to be paid direct, but, leaving that aside, as executors and trustees they have the right to appoint an agent to collect the moneys for them; they do not have the right to require payment by the purchaser direct to the beneficiaries and the purchaser could not be required to settle on that basis. It is the duty of the trustees to collect the money themselves and pay them into an estate account or to authorise solicitors to receive it for them.

10    Whether the moneys go to the plaintiff's solicitors as they would in accordance with the contract or into an account in the joint names of the solicitor for each side, seems to me to be immaterial although the latter will require a direction from the vendors to the purchaser. If that is what they insist upon well that is what they insist upon and the Court can do nothing about it. It seems entirely unnecessary because Messrs Giles Payne & Co would not be able to distribute the moneys without the authority of both of the trustees and neither will the solicitors, the holder of the separate account, be able to do so without the authority of both but if that is what the defendant insists upon as the price of the settlement well then I do not think this Court can stop her from doing so, although I should add that the contract provides that Messrs Giles Payne & Co should receive the moneys. In my view that would be a far better procedure. However, in the limited time available I do not intend to give any further attention to it

11    It is conceded that the orders which the plaintiff seeks for the signing of the transfer should be made and the orders for the handing over of the title documents should also be made. As I understand it, both parties or their solicitors will attend at the settlement in any event and there is to be no problem about that.

12    There is some unnecessary argument about an executors' receipt. It does not seem to me such a receipt would be necessary in view of the authority which is to be given but if a receipt is required then it should be signed by the executors for the appropriate amount and, no doubt, if necessary they can attend on settlement for that purpose

13    An application has been made for indemnity costs. While I think that the attitude of the defendant was quite unjustified, in view of the relationship between the parties and the difficulties over the Estate I have determined not to make an order for indemnity costs. Nevertheless, the defendant is to pay the plaintiff's costs of these proceedings. Those costs are not to be charged against the estate.

14    I make orders in accordance with the document initialled by me.

15    Exhibit can be returned.

Last Modified: 09/27/2000