Gooley v Gooley [2020] NSWSC 798

Supreme Court New South Wales

Medium Neutral Citation: Gooley v Gooley [2020] NSWSC 798 Hearing dates: 17 April and 6 May 2020 Date of orders: 25 June 2020 Decision date: 25 June 2020 Jurisdiction: Equity - Expedition List Before: Williams J Decision: One of the defendant's proposed nominees to be appointed as administrator pendente lite of the deceased's estate unless the plaintiffs provide certain undertakings described in [141]. The disgorgement order requiring the plaintiffs to replenish certain funds alleged to have been misappropriated from the deceased's estate is refused. Catchwords: SUCCESSION – executors and administrators – special and limited grants of administration – administrators pendente lite – Probate and Administration Act 1898 (NSW), s 73 – basis of appointment – whether the assets of deceased estate are in some jeopardy – where defendant beneficiary alleges that the plaintiffs have engaged in certain misconduct in their capacity as putative executors of deceased estate – whether plaintiffs have used estate funds to pay their personal legal costs associated with contested probate proceedings – where plaintiffs' conduct and evidence creates uncertainty about whether funds used by plaintiffs are estate funds, despite orders of the Court requiring the plaintiffs to serve an affidavit clarifying the position – estate assets in some jeopardy due to hostility and suspicion between plaintiffs and defendant – administrator pendente lite to be appointed unless plaintiffs provides certain undertakings to remove jeopardy to the estate EQUITY – injunctions – interlocutory injunctions – mandatory interlocutory injunctions – where defendant seeks interim order requiring the plaintiffs to replenish funds allegedly misappropriated from deceased estate for the purposes of paying the plaintiffs' legal costs of proceedings – order sought as an incident of the Court's power to award costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) as applied in the context of probate proceedings – interlocutory injunction refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Employers and Employees Act 1890 (Vic) Probate and Administration Act 1898 (NSW), ss 33, 44 and 73 Succession Act 2006 (NSW), Ch 3 Uniform Civil Procedure Rules 2005 (NSW), r 7.10 Wrongs Act 1890 (Vic) Cases Cited: Bellew v Bellew (1865) 4 Sw & Tr 58; 164 ER 1437 Boylan v Farthing (1999) 86 FCR 120 Byers v Overton Investments Pty Limited (2001) 109 FCR 554 Chen v New South Wales (No 2) [2016] NSWCA 292 Deigan as executrix for the estate of the late James Boyd Lockrey v Fussell (2019) 19 BPR 39,853; [2019] NSWCA 299 Donald Campbell & Co v Pollak [1927] AC 732 Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370 Goodsall v Keen – Estate of Sydney Arthur Keen [2006] NSWSC 1143 Gray v Hart [2010] NSWSC 55 Greenway v McKay (1911) 12 CLR 30 Hempseed v Ward [2013] QSC 348 Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 Horrell v Witts (1866) LR 1 P & D 103 Howling v Kristofferson, Supreme Court of New South Wales, Cohen J, 14 October 1992, unreported, BC9201556 Jones v Dunkel (1959) 101 CLR 298 Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Public Trustee v Smith [2008] NSWSC 397 Re Bevan (deceased); Bevan v Houldsworth [1948] 1 All ER 271 Texts Cited: D Ong, Trusts Law in Australia (5th ed, 2018, The Federation Press) Category: Procedural and other rulings Parties: Aleta Joy Gooley (First Plaintiff) Melinda Louise Foley (Second Plaintiff) Brett Raymond Gooley (Defendant) Representation: Counsel: Mr E G Romaniuk SC with Mr D Del Monte (Plaintiffs) Mr J P Knackstredt (Defendant)