Morgan v MacRae [2001] NSWSC 1017

New South Wales Supreme Court

CITATION : Morgan v MacRae [2001] NSWSC 1017 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2684/00 HEARING DATE(S) : 19/10/01 JUDGMENT DATE : 19 October 2001

Jennifer Marion Morgan (P) PARTIES : David Robert Alexander MacRae and James Mathers as Executors of the Estate of William Robert Smith MacRae (D1) David Robert Alexander MacRae and James Mathers as Executors of the Estate of Jean Constance MacRae (D2) David Robert Alexander MacRae (D3) JUDGMENT OF : Young CJ in Eq

COUNSEL : P W Gray (P) J B Whittle SC and R D Wilson (D3) SOLICITORS : Minter Ellison (P) LMG Solicitors & Attorneys (D3) CATCHWORDS : SUCCESSION [258]- Executors- Removal- Not ordinarily be interlocutory motion- Grant to be revoked if one of two executors removed. Hordern v Hordern [1910] AC 465 Mavrideros v Mack (Young J - 16.6.1997) Monty Financial Services Ltd v Delmo [1996] 1 VR 65 CASES CITED : Profilio v Profilio [1999] NSWSC 657 Re Hardy [1967] 1 NSWR 638 Titterton v Oates (1998) 143 FLR 467 Vyse v Foster (1874) LR 7 HL 318 DECISION : Notice of motion dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2684 of 2000

YOUNG CJ in EQ

Friday 19 October 2001 MORGAN v MACRAE

Judgment 1 His Honour: The present proceedings are essentially a dispute between a daughter and a son of the late William and Jean MacRae. They are associated with Family Provision Act proceedings initiated by another daughter of the same couple. 2 It would seem that the son was closely associated with the business affairs of his parents before they died and is familiar with their affairs and the way in which they were concerned with various trustee or investment companies within the family. 3 The daughter by her summons, and later by an amended statement of claim, has indicated quite plainly that she is dissatisfied with the way in which the son has been handling the estate and she seeks a series of orders against him. 4 I have endeavoured to just sketch the dispute between the parties. However, I will have to descend to detail shortly. It is also necessary to note that William MacRae died on 13 December 1991; probate of his will was duly granted to Jean MacRae. Jean MacRae died on 1 December 1997 and probate of her will was granted to the son plus a chartered accountant against whom nothing is alleged. By virtue of s 13 of the Imperial Acts Application Act 1969, the son and the accountant became the executors of William as well as of Jean. 5 The amended statement of claim, which has to be read with the amended summons because for some curious reason the amended statement of claim refers to the orders sought in the summons, is a veritable hotchpotch of multifariousness. Although some indication of that was given through argument, the only riposte was it has been pleaded to and until senior counsel for the son came into the matter today, no-one had raised any point about it. I assume that the conclusion that must follow is the Court is to be asked to try the various non-issues that are raised by it, but I will just pass that by for the present. 6 The main significance of the statement of claim is that I am today trying an interlocutory motion and it is seldom, if ever, that one can by interlocutory motion: