Sproule v Sproule [2009] NSWSC 152

New South Wales Supreme Court

CITATION : Sproule v Sproule [2009] NSWSC 152

HEARING DATE(S) : 12 March 2009

JUDGMENT DATE : 13 March 2009

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

DECISION : Orders sought by the plaintiff made

CATCHWORDS : SUCCESSION - wills, probate and administration - proceeds of sale of property held by executor applied to acquisition of property in name of beneficiary - order sought that property be transferred to executor - order made

LEGISLATION CITED : Trustee Act 1925 (NSW)

CATEGORY : Principal judgment

CASES CITED : Australian Postal Corporation v Lutak (1991) 21 NSWLR 584. Paul A Davies (Australia) Pty Limited v Davies [1983] 1 NSWLR 440

PARTIES : Stephen John Sproule as executor of the Estate of the late Patricia Joan Sproule (Plaintiff) John Maurice Sproule (Defendant)

FILE NUMBER(S) : SC 4074 of 2007

SOLICITORS : C A Williams (Plaintiff) No appearance (Defendant)

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WARD J

FRIDAY 13 MARCH 2009

4074/07 STEPHEN JOHN SPROULE AS EXECUTOR OF THE ESTATE OF THE LATE PATRICIA JOAN SPROULE V JOHN MAURICE SPROULE JUDGMENT

1 In these proceedings Stephen John Sproule ("Executor"), in his capacity as executor of the estate of the late Patricia Joan Sproule, seeks orders and declaratory relief in relation to the alleged misappropriation by his father, John Maurice Sproule ("the defendant"), of the proceeds of sale of a property purchased by the Executor in Auburn Street, Sutherland ("Sutherland property"). 2 Although the defendant filed a notice of appearance in the proceedings, and subsequently filed a defence and cross-claim in the proceedings (on 20 September 2007), there was no appearance at the hearing by or on behalf of the defendant. (I note that no notice of ceasing to act appears to have been filed by the solicitor on the record for the defendant, Allan Donald Grant of Grant and Simpson Lawyers in Queensland). 3 Filed in court for the Executor was an affidavit dated 9 March 2009 of Daniel Paul Mifsud, solicitor, deposing to a conversation he had last year with Mr Grant, in which Mr Grant on 25 February 2008 stated that he was no longer representing the defendant and that as far as he was aware the defendant did not have a new solicitor. Mr Mifsud also deposed to two conversations with the defendant on 9 March 2009 in the second of which the defendant said words to the effect: "No. I have changed my mind and I am not signing anything. I sick of the last 30 years of bullshit and I will let the court decide on the days. I want nothing more to do with the property and I won't be coming down." 4 The reference to signing anything appears to be a reference to a Deed which had been prepared following a mediation between the parties to which I will refer later. 5 By letter dated 3 March 2009 (annexure O to the affidavit of the solicitors for the Executor, Ms Cheryl Ann Williams sworn 10 March 2009) sent by registered post, Ms Williams informed the defendant that the matter had been listed for hearing on 12 March 2009 and that if he did not appear orders would be sought that the property known as 1/6 Begley Street, Airlie Beach ("Begley property") be declared as property in the estate of the late Patricia Joan Sproule; that the Begley Street property be transferred into the executor's name; and that the defendant pay for the Executor's costs of the proceedings. 6 I am satisfied on the evidence filed for the Executor that the defendant was made aware of the hearing and has had an opportunity to be heard in the proceedings. 7 At the hearing, the Executor relied upon the following affidavits filed in court yesterday: