MUIR v WINN [2009] NSWSC 857

New South Wales Supreme Court

CITATION : MUIR v WINN [2009] NSWSC 857

HEARING DATE(S) : 6 August 2009

JUDGMENT DATE : 27 August 2009

JUDGMENT OF : Bryson AJ at 1

On the Amended Summons: 1. Dismiss the proceedings on the Amended Summons. On the Cross-Claim: 2. Declare that the Executor is justified in taking no further steps to obtain subdivision approval and subdivision of the property known as Meadowvale, Gilead. 3. Declare that the Executor is justified in proceeding to sell Meadowvale so as to enable him to administer the estate of the deceased. 4. Declare that in the events and circumstances which have happened, and in particular, consequent upon the failure to obtain subdivision approval of Meadowvale: DECISION : (a)clause 1.6 including clause 1.6.15 have effect; (b)the executor is to sell Meadowvale in its entirety in order to realise the gifts in clause 1.6, and is to ascertain the balance of the proceeds of sale to which clause 1.6.15 applies by ascertaining the value of that part of Meadowvale which is not part of the front 100 acres and deducting that value from the proceeds of sale: and is to apply the remaining proceeds of sale first in payment of the gifts in clause 1.6.1 to clause 1.6.14 inclusive, so that the balance thereafter is the balance of the proceeds of sale to which clause 1.6.15 applies; (c)the second sentence of clause 1.9 has effect; (d)clause 1.8 has effect; (e)the proceeds of sale of Meadowvale are to be disposed of in accordance with declaration 3(b) and thereafter in accordance with the last sentence of clause 1.9; 5.Reserve further consideration of claim 4 and claim 5 in the Cross-Claim 6.Declare that no interest is payable on legacies and that income is to be distributed in accordance with the second sentence of clause 1.13. 7. Costs reserved.