Richardson v Richardson [2021] NSWSC 353

Supreme Court New South Wales

Medium Neutral Citation: Richardson v Richardson [2021] NSWSC 353 Hearing dates: 29 March 2021 Date of orders: 9 April 2021 Decision date: 09 April 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Order that the first defendant pay damages for the loss to the deceased's estate caused by and consequential upon the first defendant's breach of his executorial duties, as set out at [181] above, such damages to be deducted from the first defendant's one-third share of the residuary estate of the deceased. (2) Order that the first defendant pay interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on the amount ordered above, that amount also to be deducted from the first defendant's one-third share of the residuary estate of the deceased. (3) Order that the first defendant pay the costs of the plaintiffs of this proceeding on an indemnity basis, such amount also to be deducted from the first defendant's one-third share of the residuary estate of the deceased. (4) Order that the costs ordered pursuant to order 3 above be fixed on a gross sum basis in the amount of $110,182.29 (that being 85% of the amount of the solicitor client costs discounted to reflect the contingencies of the costs assessment process that will not now be required). (5) For the removal of doubt, order that the second defendant be permitted to deduct from the first defendant's one-third share of the residuary estate of the deceased the amounts for which the first defendant is liable pursuant to the above orders together with the assessed costs of the Probate Proceeding. Catchwords: SUCCESSION — Executors and administrators — Proceedings against executors and administrators RESTITUTION — Restitution for wrongdoing — Tort — Mesne profits COSTS —Bases of quantification — Indemnity basis Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 63, 98(4), 100 Crimes Act 1900 (NSW), s 316 Probate and Administration Act 1898 (NSW), s 44(1) Succession Act 2006 (NSW), Ch 3 Uncollected Goods Act 1995 (NSW) Uniform Civil Procedure Rules, rr 6.18, 36.15 Cases Cited: Arambasic v Veza (No 4) [2014] NSWSC 1109 Arambasic v Veza (No 5) [2014] NSWSC 1399 Bird v Bird (No 4) [2012] NSWSC 648 Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433 Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; (1992) 109 ALR 57 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397 Hamod v State of New South Wales [2011] NSWCA 375 Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 Hewitt v Gardner [2009] NSWSC 705 Holmes v Evans [2018] NSWSC 260 Hua Cheng International Holdings Group Pty Ltd (Receivers & Managers Appointed) (In Liquidation) v James Hui Xiao Xu In the matter of MSU Management Pty Ltd – Urusoglu v MSU Management Pty Ltd [2011] NSWSC 54 Ingall v Moran [1944] 1 KB 160 Juul v Northey [2010] NSWCA 211 Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 803 Lowery v Lowery [2013] NSWSC 691 Lumbers v W Cook Builders Pty Limited [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412 Mao v Peddley [2001] NSWSC 254; (2002) DFC 95-249 Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd [2018] NSWSC 1586 Minister of State for the Interior v RT Company Pty Ltd (1962) 107 CLR 1 O'Regan v Hellstrom [2020] NSWSC 16 Oliveri v Jones [1999] NSWSC 154 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221; (1987) 69 ALR 577 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 Richardson v Pedler [2001] NSWSC 221 Richardson v Richardson [2020] NSWSC 1773 Salib v Gakas [2010] NSWSC 505 Stegnjaic v Stegnjaic [2019] NSWSC 1208 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch 538 (CA) Texts Cited: James Edelman, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property (Hart Publishing, 2002) Category: Principal judgment Parties: Gregory John Richardson (First Plaintiff) Mark William Richardson (Second Plaintiff) Wayne Vincent Richardson (First Defendant) Terence George Hartmann as administrator of the estate of the late Joycelyn Margaret Richardson (Second Defendant) Representation: Counsel: N Condylis (Plaintiffs) W V Richardson (First Defendant in person) T G Hartmann (Second Defendant in person)