GOODWIN v DUGGAN [1996] NSWCA 221

GOODWIN v DUGGAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 18 March 1996

[1996] NSWCA 221

Priestley JA. Application is made for orders made by Simos J on 15 December last to be stayed pending determination of an appeal from those orders.

The situation which brings about the application is a difficult one. The applicant for the stay was one of two trustees of the will of her deceased sister. The other trustee was a brother of the applicant for the stay and of the deceased. The deceased had left a will, of which probate was duly granted, in which she bequeathed her estate equally to her two daughters, both then minors, one of whom was the plaintiff before Simos J and is the first opponent in the application today.

Stated very generally, the claim before Simos J was that the two trustees of the deceased sister's will were in breach of their trust. The plaintiff's claim succeeded, and she obtained orders and declarations from Simos J that the trustees were in breach of trust and must repay to her amounts that should have been paid pursuant to their duties as trustees.

The claimant/appellant was a passive trustee to a large extent. The active trustee was the brother, Mr Brett Yuile. The judges findings were, in effect, that he had wasted the estate of his niece, the plaintiff.

The claimant/appellant made a case before Simos J which, in the end, came down to an application to be excused under section 85 of the Trustee Act from the consequences of her breaches of trust on the basis that she acted fairly and honestly and ought reasonably be excused.

The judge found against her on that. This has led to the practical situation where the judge's orders require payment to the plaintiff/first opponent of an amount somewhat in excess of $70,000. Mr Brett Yuile, it would seem, will not be able to meet any part of his obligation. The only source of money to satisfy the judge's orders will be the claimant, Deborah Goodwin. She has put on an affidavit in support of this application showing total assets of $356,000 and total liabilities of $170,000. This indicates on the face of things an ability to meet the judgment for the sums that she will be required to pay pursuant to Simos J's orders if she fails in her appeal.