Olsen v James [2020] NSWSC 1015

Supreme Court New South Wales

Medium Neutral Citation: Olsen v James [2020] NSWSC 1015 Hearing dates: 1 June 2020; further written submissions ending 2 July 2020 Date of orders: 5 August 2020 Decision date: 05 August 2020 Jurisdiction: Equity Before: Parker J Decision: See [184]-[186] Catchwords: SUCCESSION – executors and administrators – proceedings against executor – dispute between executor and beneficiary – beneficiary commenced proceedings against executor – executor consented to costs order in favour of beneficiary – no judicial advice sought – whether executor entitled to indemnity from estate EQUITY – Re Diplock claim – interim distributions paid by executor to some of the beneficiaries – remaining assets now insufficient to pay all – whether executor entitled to recovery RESTITUTION – mistake – interim distributions paid by executor to some of the beneficiaries – remaining assets now insufficient to pay all – whether executor entitled to recovery Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(4), 99 Probate and Administration Act 1898 (NSW), ss 92, 93, 93(1), 93(2) Trustee Act 1925 (NSW), ss 5, 59, 59(4), 63, 93 Uniform Civil Procedure Rules 2005 (NSW), pt 54, sch 1, rr 1.5, 42.25 Cases Cited: Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192 Baychek v Baychek [2010] NSWSC 987 Bovaird v Frost [2009] NSWSC 917 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109 Gatsios Holdings v Kritharas Holdings [2002] NSWCA 29 Harvey v Barton (No 4) [2015] NSWSC 809 His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 287 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Association Incorporated [2003] NSWSC 104 Ministry of Health v Simpson [1951] AC 251 Nudd v Mannix [2009] NSWCA 327 O'Hearn Lawyers v Barker [2020] NSWSC 131 Re Beddoe [1893] 1 Ch 547 Re Dallaway [1982] 1 WLR 756 Re Diplock [1948] 1 Ch 465 Strang Patrick Stevedoring Pty Ltd v Owners of the MV Sletter (formerly the Hibiscus Trader) (1992) 38 FCR 501 Torrens Aloha Pty Ltd v Citibank NA (1996) 65 FCR 39 Warton v Yeo [2015] NSWCA 115 Texts Cited: Mason, K, J W Carter and G J Tolhurst, Mason & Carter's Restitution Law in Australia (3rd ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: Jens Ottar Olsen (Plaintiff/First Cross-Defendant) Trevor Gordon James (Defendant/Cross-Claimant) Guide Dogs NSW/ACT (Second Cross-Defendant) Illawarra Shoalhaven Local Health District (Wollongong Hospital) (Third Cross-Defendant) Royal Flying Doctors Services South Eastern Section (Fourth Cross-Defendant) Daniel Michael Sullivan (Fifth Cross-Defendant) Representation: Advocates M Langenheim (Counsel) (Plaintiff/ First Cross-Defendant) P O'Loughlin (Counsel) (Defendant/Cross-Claimant) RW Tregenza (Counsel; written submissions only) (Second Cross-Defendant) BJ Dornan (Solicitor) (Fourth Cross-Defendant)