Wilcox v Chapple [2020] NSWSC 1859

Supreme Court New South Wales

Medium Neutral Citation: Wilcox v Chapple [2020] NSWSC 1859 Hearing dates: 16 December 2020 Date of orders: 16 December 2020 Decision date: 16 December 2020 Jurisdiction: Equity Before: Rees J Decision: Judicial advice: executor is justified in defending proceedings and entitled to recourse to the Estate to pay his costs of doing so. Catchwords: TRUSTEES — jurisdiction to give judicial advice – whether to give advice in this case – litigious estate – appropriate to give advice to protect the estate and its trustee. Legislation Cited: Trustee Act 1925 (NSW), ss 63, 66(1) Cases Cited: Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 Re Rosewood Research Pty Limited [2014] NSWSC 449 Category: Principal judgment Parties: Benjamin Wilcox (Plaintiff) John Chapple (First Defendant) Trevor Harland (Second Defendant) Representation: Counsel: Mr RD Wilson SC (Plaintiff) Mr P Afshar (First Defendant) Ms A Kennedy, Solicitor (Second Defendant)

Solicitors: Oliveri Lawyers (Plaintiff) Newnhams Solicitors (First Defendant) Bridges Lawyers (Second Defendant) File Number(s): 2019/131798

EX TEMPORE Judgment 1. HER HONOUR: This is an application by John Chapple as executor of the Estate of the late Patricia Anne Wilcox for advice pursuant to section 63 of the Trustee Act 1925 (NSW). Mr Chapple seeks the Court's advice in relation to the following questions: a. whether the first defendant is justified in defending the claims in the proceeding as set out in relation to him in the plaintiff's Amended Statement of Claim filed on 21 October 2019 (ASOC); and b. whether the first defendant is justified in having recourse to property of the estate of the late Patricia Anne Wilcox (Estate) to pay his reasonable costs of so defending the claims set out in the ASOC. Mr Chapple also seeks an order that his costs of these proceedings from commencement be paid out of the Estate, including the costs of this motion. 1. The application was opposed by the plaintiff, Benjamin Wilcox, the son of Ms Wilcox. The second defendant, Trevor Harland, was Ms Wilcox's de facto husband for many years and became her husband shortly before she passed away. He did not actively participate in the application. 2. In support of the application, Mr Chapple read three affidavits by his solicitor, Belinda Nixon. Mr Chapple also tendered a confidential opinion by the Executor's counsel, consistently with the process described by Lindsay J in Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 at [113]: The procedural objectives of speed and efficiency served by judicial advice proceedings cannot, in many cases, be achieved unless the Court is presented with the assistance of a memorandum of opinion by an independently-minded lawyer who, out of court, has studied the problem to be solved, examined the factual context critically, analysed competing contentions in a comprehensive legal context, and worked out a solution that commends itself to his or her professional judgement, a judgement upon which the Court can responsibly be invited to rely. 1. The plaintiff tendered various documents. There was no cross-examination.