Bird v Bird (No 4) [2012] NSWSC 648

Supreme Court New South Wales

Medium Neutral Citation: Bird v Bird (No 4) [2012] NSWSC 648 Hearing dates: 5 - 13 March; 15 - 23 March 2012 Decision date: 05 June 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. On the plaintiff's claim against the defendants, judgment for the defendants. 2. On the defendants' cross claim against the plaintiff, judgment for the plaintiff. 3. On the first and second defendants' cross claim against the third defendant, judgment for the third defendant. 4. On the third defendant's cross claim against the first and second defendants, judgment for the first and second defendant. Catchwords: SUCCESSION - executors or administrators - proceedings by executors and administrators - beneficiary entitled to undertake claim if executors do not do so - beneficiary cannot be in better position than estate

POWERS OF ATTORNEY - breach of limitation on donee using power for own benefit - ratification of breach by principal - onus on defendant to establish ratification by unequivocal words or acts - onus on defendant to prove that principal had knowledge of all material circumstances - evidence deficient in that conversations with principal said to establish ratification were in very general terms

SUCCESSION - executors and administrators - rights, powers and duties - executor liability in devastavit for wilful default or want of prudence - where executors had or ought to have had knowledge of potential claim for misappropriated funds - executors entitled to take into account unpaid amounts to which potential defendant would be entitled - executors entitled to take into account fact that proceeds of misappropriated funds were paid to or for the benefit of residuary beneficiaries - executors not in breach of trust for failing to pursue beneficiary of legacy or withholding legacy from that beneficiary