John Justin GORMAN v John Patrick Gorman & Anor; Estate of the late Jeanette Mary GORMAN [2002] NSWSC 1107

New South Wales Supreme Court

CITATION : John Justin GORMAN v John Patrick Gorman & Anor; Estate of the late Jeanette Mary GORMAN [2002] NSWSC 1107 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2862/00 HEARING DATE(S) : 18/11/2002 JUDGMENT DATE : 25 November 2002

John Justin Gorman - Plaintiff PARTIES : John Patrick Gorman - First Defendant Lisa Bernadette McGuire - Second defendant JUDGMENT OF : Acting Master Berecry at 1

Mr M S Willmott - Plaintiff COUNSEL : Mr G. Parker - First Defendant Mr R Hughes - Second Defendant Eric Butler - Plaintiff SOLICITORS : Maurice Blackburn Cashman - First Defendant Nagle & McGuire - Second Defendant CATCHWORDS : Costs - administration suit - accounts - reasonableness of plaintiff's request - dilatory conduct by executors - executorial duty over-rides family considerations - method of bringing application. LEGISLATION CITED : Wills Probate & Administration Act Pt 68 of Supreme Court Rules CASES CITED : York (1894) 15 LR (NSW) BP 24 DECISION : 1. The first and second defendants pay three-quarters of the plaintiff's costs personally; 2. Half the second defendant's costs be paid personally by the first defendant; 3. The first defendant pay his own costs personally; 4. I make no order for the balance fo the second defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING MASTER BERECRY

MONDAY, 25 NOVEMBER, 2002

2862/02 John Justin GORMAN v John Patrick GORMAN & Anor JUDGMENT 1 MASTER: On 8 December, 2000 Master McLaughlin approved a settlement reached between the parties in the proceedings. The orders made by the Master included the following:- "1. In lieu of the provision given to him by and in the will bearing date 2 July 1993 of Jeanette Mary Gorman, now deceased, the plaintiff, John Justin Gorman, received provision out of the Estate of the said deceased for his maintenance etcetera pursuant to s 7 of the Family Provision Act 1982 and that, subject to the order in paragraph 2 below, such provision be the greater of a lump sum payment of $270,000.00 or 40% of the net distributable Estate as realised by the defendants; 2. In addition to the order for provision to the plaintiff as provided in paragraph 1 above, the plaintiff is to received one-half of the net value of the assets in the farming partnership known as J P & J M Gorman." 2 The orders made by the Master were the result of a Deed of Settlement and Release entered into between the parties. The Deed included the following clauses:- "2. The Parties of the first and second part shall forthwith do all acts and things and sign all documents necessary to effect a sale of properties known as: i) Farm 550 Field Road, Coleambally in the State of New South Wales, being the whole of the land in folio identifier 181/756457 and being solely owned by the Estate. ii) Farm 535 Graham Road, Coleambally in the State of New South Wales, being the whole of the land in folio identifier 163/756457 owned as to one half share by the Estate and the remaining one half share by the party of the first part. iii) Real property being strata title home unit known as Unit 508/115 Macleay Street, Potts Point in the State of New South Wales, being the whole of the land in folio identifier 61/SP39734 and being solely owned by the Estate. In relation to the sale of properties referred to in Clauses 2(i) and (ii) it is acknowledged and agreed that the party of the first part shall have the right to purchase such properties either by private treaty or at auction in accordance with the provisions hereinafter contained notwithstanding his office as a Trustee of the Estate. 3. The parties of the first and second part shall agree on a price at which the properties shall be listed for sale by private treaty with licensed real estate agents as agreed by the parties. In the absence of agreement as to the sale price, the sale price shall be the average of two valuations made by valuers who are members of the Australian Institute of Valuers.