Sutton v Wahlen [2000] NSWSC 1063

New South Wales Supreme Court

CITATION : Sutton v Wahlen [2000] NSWSC 1063 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2967/2000 HEARING DATE(S) : 12/10/2000; 02/11/2000 and 14/11/2000 JUDGMENT DATE : 14 November 2000

PARTIES : Mary Sutton (P) Joyce Wahlen (D) JUDGMENT OF : Young J

COUNSEL : M K Meek (P) No appearance for defendant SOLICITORS : Carty & Cox (P) CATCHWORDS : SUCCESSION [263]- Realizing estate- Joint executors- One recalcitrant- Procedure to be adopted when one executor requires sale. Conveyancing Act 1919, s 153 LEGISLATION CITED : Supreme Court Act 1970, s 100 Trustee Act 1925, ss 5, 63, 81 Wills Probate & Administration Act 1898, ss 84, 85 Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 CASES CITED : Cox v Archer (1964) 110 CLR 1 Re Mayo [1943] Ch 302 Neill v Public Trustee (1978) 2 NSWLR 65 DECISION : Orders made

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG J

TUESDAY 14 NOVEMBER 2000

2967/2000 - SUTTON v WAHLEN

JUDGMENT 1 HIS HONOUR: The plaintiff and the defendant are daughters and joint executors of the will of the late Ivy May Humphris, who died on 27 May 1999. Probate was granted on 18 October 1999 to the plaintiff and the defendant, who are the sole beneficiaries under the will in the events which have happened. 2 The major asset in the estate is real estate at 3 Lyon Street, Bellingen. The debts of the estate have been paid with the exception of the costs of the solicitor who acted on the probate, which costs total $5987 and which are, of course, a testamentary expense. The estate has thus not been fully administered. 3 The plaintiff wants to sell the real estate to pay the testamentary expenses and so that the estate can be distributed. The evidence shows that despite repeated correspondence and service of the summons in these proceedings, the defendant has declined to respond. She did not appear in the present proceedings. 4 The plaintiff seeks an order to sell the real estate. Strictly speaking, what she is doing is making an application under section 153(4) of the Conveyancing Act 1919. That subsection provides: "Some or one only of several executors or administrators shall be entitled to exercise such powers with the leave of the court and not otherwise, and the court may make such orders as it thinks fit for the purpose of carrying out any such sale, mortgage, or lease." 5 The reference to "such powers" are powers to sell or mortgage the deceased's real estate for the purpose of administration. 6 In Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 185, the High Court made it clear that in an application under this subsection the Court needs to be satisfied of the propriety of any sale, especially the price and the terms of sale, before leave is granted under the subsection. A similar practice is followed when an application is made by a trustee to be empowered to sell under s 81 of the Trustee Act 1925. There the Court does not usually confer an unlimited power of sale but rather sanctions a sale within a certain time, with a certain reserve, on terms which are stated. Alternatively the Court may sanction a specific sale. In either case proper valuation evidence is needed. 7 After initially adjourning the present matter because evidence was not available to satisfy the test, an affidavit was proffered by a local real estate salesperson who said she had a buyer for $10,000 more than the probate valuation. I did not consider that was sufficient and the matter was stood over again. 8 Today, an affidavit of a valuer together with an affidavit setting out the draft contract has been proffered. I am satisfied that the proposed sale is proper and will authorise it. 9 However, because there have in recent years been a plethora of cases where joint executors have not been able to agree on selling, and cases such as the present where one executor just seems to ignore her obligations, it seems to me it would be useful to state the general propositions that guide the Court in this sort of case because this may assist solicitors advising executors so that such matters do not actually reach the Court.