Wardy v NSW Trustee and Guardian [2021] NSWCA 121

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wardy v NSW Trustee and Guardian [2021] NSWCA 121 Hearing dates: 1 March 2021; 2 March 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Before: Macfarlan JA at [1]; Meagher JA at [72]; White JA at [73] Decision: (1) Appeal dismissed with costs. (2) The appellant's notice of motion filed on 2 February 2021 dismissed with costs. (3) Leave granted to the respondent to file a notice of cross-appeal in the form provided to the Court. (4) Direct the respondent to file and serve its notice of cross-appeal within 14 days of the date of this judgment. (5) Allow the cross-appeal. (6) Pursuant to the cross-appeal, set aside Declaration (5) made by Slattery J on 29 January 2020. (7) Order the respondent to pay the appellant's costs of the supplementary submissions filed in this Court. (8) Otherwise make no order as to costs of the cross-appeal. Catchwords: SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3 Legislation Cited: Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW), sub-ss 75A(7), (8) Trustee Act 1925 (NSW), s 63 Uniform Civil Procedure Rules 2005 (NSW), r 54.3 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Chaworth v Beech (1799) 4 Ves Jun 555; 31 ER 285 Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171 Ewer v Corbett (1723) 2 P Wms 148; 24 ER 676 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4 House v The King (1936) 55 CLR 499; [1936] HCA 40 Joyce v Cam [2004] NSWSC 621 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 TTY167 v Republic of Nauru [2018] HCA 61; (2018) 93 ALJR 111 Wardy v Salier [2014] NSWSC 473 White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Mr John Wardy (Appellant) NSW Trustee and Guardian (Respondent) Representation: Counsel: W G Muddle SC (Appellant) M K Meek SC / C Coventry (Respondent)