Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) [2012] NSWSC 412

Supreme Court New South Wales

Medium Neutral Citation: Liberty Teal Griffin (by her Tutor Shelley Candice Griffin) v David Raymond Coe (both in his capacity as Executor of the estate of the late Phillip Mark Griffin & in his personal capacity) [2012] NSWSC 412 Hearing dates: 27 April 2012, 1 August 2012 & 5 September 2012 Decision date: 14 September 2012 Jurisdiction: Equity Division Before: Davies J Decision: (1) The claim made in respect of the pre-probate period against the Second Defendant is dismissed pursuant to r 13.4 UCPR; (2) The Statement of Claim in respect of the Second Defendant is otherwise struck-out pursuant to r 14.28 UCPR; (3) Leave is granted to the Plaintiffs to re-plead the post-probate claim against the Second Defendant, and such Amended Statement of Claim is to be filed and served by 28 September 2012. Catchwords: PROBATE - executors de son tort - whether intermeddling by executors named in will - acts amounting to intermeddling - effect of intermeddling - whether devastavit committed PROCEDURE - strike-out application - whether claim untenable - proceedings alleging devastavit against executors named in will before and after probate obtained Legislation Cited: Corporations Act 2002 Family Provision Act 1982 Cases Cited: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 Baker v Paul [2011] NSWSC 957 Bovaird v Trustee of the Bankrupt Estate of Frost [2010] FCA 1159 Cash v Nominal Defendant (1969) 90 WN (Pt 1) 77 Ex parte The Public Trustee; Re Birch and Anor (1951) 51 SR (NSW) 345 General Steel Industries Inc v Commissioner for Railways (NSW)(1964) 112 CLR 125 Halfhide v Beavan [2003] NSWSC 1207 Hearne v Street (2008) 235 CLR 125 Holder v Holder [1968] CoA 353 Howling v Kristofferson (unreported - Sup Ct NSW, Cohen J - 14 October 1992) In The Will of Colless (1941) 41 SR (NSW) 133 In re Stevens; Cooke v Stevens [1898] 1 Ch 162 Juul v Northey [2010] NSWCA 211 Long and Feaver v Symes and Hannam (1832) 162 ER 1339 Mangraviti v Donato [2009] NSWSC 1258 Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 Mohamidu Mohideen Hadjiar v Pitchey [1894] AC 437 Mulray v Ogilvie (1987) 9 NSWLR 1 Nolan v Nolan [2004] VSCA 109 Parker v Stratford-Upon-Avon Corporation [1914] 2 KB 562 Sykes v Sykes (1870) LR 5 CP 113 Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 Texts Cited: F C Hutley, The Executor De Son Tort in the Law of New South Wales (1952) 25 ALJ 716 Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 16th ed (1982) Sweet & Maxwell Category: Interlocutory applications Parties: Liberty Teal Griffin (by her tutor Shelley Candice Griffin) (First Plaintiff) Max Edward Griffin (by his tutor, Shelley Candice Griffin) (Second Plaintiff) David Raymond Coe (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (First Defendant) Neil Sidney Matthews (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (Second Defendant) Timothy John Christiansen (both in his capacity as executor of the estate of the late Philip Mark Griffin and his personal capacity) (Third Defendant) Representation: Counsel: M Sneddon & C Alexander (Plaintiffs) SR Donaldson SC, DL Williams SC & M Newton (Second Defendant) Solicitors: C P White & Hetherington (Plaintiffs) HWL Ebsworth (Second Defendant) File Number(s): 2011/121962