NSW Caselaw
New South Wales Supreme Court
CITATION : Hawkins v Barkley-Brown & Anor [2010] NSWSC 48 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 3 September 2009 & 6 November 2009
JUDGMENT DATE : 8 February 2010
JURISDICTION : Equity
JUDGMENT OF : Slattery J at 1
DECISION : See paragraph [78] of the judgment.
CATCHWORDS : PROCEDURE - registrar's assessment of commission for executor upon passing of first accounts - registrar awards commission under s 86(1) of the Probate and Administration Act 1898 expressed as a percentage of capital realised, income and assets transferred in specie - review of registrar's decision - award of percentage commission to executor is appropriate even in a large estate - no risk of double compensation where executor also involved in litigation on behalf of estate - executors' involvement in litigation part of executorial duties - assessment based on performance of executorial duties - hourly rate not necessary to calculate executor's commission - quantum of award given by registrar appropriate given the executor's 'pains' and 'trouble' in carrying out his duty
Administration and Probate Act 1890 (VIC) s 26 LEGISLATION CITED : Charter of Justice 1823 s xvii Probate Administration Act 1898 (NSW) s 86(1) Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY : Principal judgment
Barkley v Barkley Brown [2009] NSWSC 76 Creer v Estate of Peters [2007] NSWSC 1291 Hall v Transport Infrastructure Development Corporation [2006] NSWSC 1076 In re Allan Mclean (Deceased) (1911) 31 NZLR 139 In re Barr Smith [1920] SALR 381 In the estate of Stone (deceased): Patterson v Halliday [2003] VSC 298 CASES CITED : In the Will of Sheppard [1972] 2 NSWLR 714 In the Will of T.S. Douglas deceased (1951) 51 SR(NSW) 282 Macartney v Macartney (1909) VLR 183 Re Craig (1952) 52 SR (NSW) 265 Re Smith (1916) 16 SR (NSW) 422 Re the Estate of D A Lindsay [2004] NSWSC 575 Re the Estate of Ghidella [2005] QSC 106 Tomko v Palasty (No 2) (2007) NSWCA 369
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