Indyk Estate - Wiernik v Indyk [2010] NSWSC 713

New South Wales Supreme Court

CITATION : Indyk Estate - Wiernik v Indyk [2010] NSWSC 713

HEARING DATE(S) : 25 June 2010

JUDGMENT DATE : 25 June 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 25 June 2010

DECISION : Commission of $120,000 allowed.

CATCHWORDS : PROBATE AND SUCCESSION – EXECUTOR'S COMMISSION – No point of principle.

LEGISLATION CITED : Probate and Administration Act 1898 (NSW) – s 86

CATEGORY : Principal judgment

CASES CITED : Creer re Estate of Peters [2007] NSWSC 1291 Indyk v Wiernik [2006] NSWSC 868

PARTIES : Phylis Carol Wiernik (Plaintiff) Searle Myron Indyk (Defendant)

FILE NUMBER(S) : SC 2004/171280

COUNSEL : S.J. Burchett (Plaintiff) J.E. Armfield (Defendant)

SOLICITORS : McCabe Terrill (Plaintiff) TressCox Lawyers (Defendant)

2004/171280 Indyk Estate: Wiernik v Indyk

JUDGMENT – Ex tempore

25 June , 2010

1 This is a contested application under s 86 of the Probate and Administration Act 1898 (NSW) for the passing of executor's accounts and for executor's commission. 2 Such applications are normally heard by the Registrars or Deputy Registrars under their delegated powers. Reasons for the Registrars' decisions are not published: see, for example, Creer re Estate of Peters [2007] NSWSC 1291 at [9]. This procedure contemplates that these applications will not become elaborate litigious contests. This application comes before me as Probate Judge only because there is heavy pressure in the Registry to deal with commission applications and this particular application is regarded as unusual, for reasons which will appear. 3 The contest in this case has been exceedingly bitter and protracted. Nevertheless, I intend to give only brief reasons for my decision. I do this for two reasons. First, the considerations in fixing an executor's commission are largely discretionary and depend upon the particular facts of each case. My conclusion in this application does not deal with any point of principle and is founded entirely on the facts. Second, I do not wish to provide any precedent or encouragement for departure from the usual practice of this Court that applications for commission are heard by a Registrar, not by a Judge. That practice is intended to ensure that commission applications, even contested ones, are dealt with quickly, expediently and without the necessity for the delivery of elaborate, published reasons. 4 The basic facts are as follows. The Plaintiff, Mrs Wiernik, is the executrix of the will of her late mother, who died in April 2003. The estate is a substantial one, valued in the order of some $6M. The will gave comparatively small legacies to grandchildren and divided the residue equally amongst the deceased's three children, namely, Mrs Wiernik, the Defendant, Mr Indyk, and their brother. Mrs Wiernik now applies to have the estate's accounts passed and payment of commission. Mr Indyk strongly opposes the application. The other brother has taken no part in the proceedings and consents to such orders as the Court may make. 5 Mrs Wiernik's application is part of a long and bitter history of dispute with Mr Indyk about the administration of the estate. Indeed, it is upon the necessity of dealing with that dispute in all of its bitterness and litigious complexity that Mrs Wiernik relies heavily in claiming commission for "pains and trouble" in an amount based upon what is at the upper range of the generally accepted percentages, namely two percent of realised capital, four percent of received income and two percent of the value of assets transferred in specie. That calculation in the present case, according to Mrs Wiernik, should result in a sum of $128,700 in round figures. To that sum should be added another $20,000, according to Mrs Wiernik, to take a account of extensive work done by her not reflected in the value of the estate but required by the nature of the estate and the particular work necessary to be done by her in administering it. 6 Mr Indyk says that Mrs Wiernik should receive a very much reduced commission because she has unreasonably delayed the administration of the estate and has put the estate to unnecessary and improper cost. 7 In reality this is a dispute between a brother and a sister. The accounts which have been provided by Mrs Wiernik show nothing of any substance of which complaint could reasonably be made. I will come to some of those items questioned by Mr Indyk in a moment. 8 The character of this dispute and some of its litigious history is recounted in a judgment of Young CJ in Eq in proceedings between the parties concerning the costs of earlier litigation which had been settled: see Indyk v Wiernik [2006] NSWSC 868. Having regard to the evidence in this application, I think that the following observations by his Honour are accurate, with some qualification: "[14] Now it would appear that [Mr Indyk's] letters started the nastiness, but the situation was not helped by [Mrs Wiernik's] previous solicitors replying in tones that [Mr Indyk] just had to put up with the fact that his mother had named [Mrs Wiernik] as executrix and [Mrs Wiernik] has a discretion as to how she would administer the estate, and she would do, at least within the law, what she thought she should do, and not be harassed or badgered by [Mr Indyk].