Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108

Supreme Court New South Wales

Medium Neutral Citation: Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108 Hearing dates: 10 September 2012 Decision date: 10 September 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [49] and [50] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - executor - obligations of executors - where executors are directors of trustee of trust to which balance of estate is paid - no order had been made for payment of commission - executors paid themselves purported advances on commission - one executor paid himself remuneration for professional work done for the estate as an accountant although no clause in will authorising such remuneration - executors as directors of residuary beneficiary purported to authorise payments of advances on commission - where conflict between personal interests of executors in receiving remuneration and duty to residuary beneficiary - where acting on legal advice - prompt steps taken to rectify defaults after taking further legal advice - undertaking to court for repayment of funds received

TRUSTS - beneficiaries - question as to who are beneficiaries of trust - where trustees power to appoint all or parts of the trust fund or income thereof to be held in trust for one or more persons to the exclusion of others - consideration of definition of "appointed class" - whether definition of "appointed class" so hopelessly wide so that trust is administratively unworkable - possibly that trust assets held for benefit of charities - referral of papers to Attorney-General

COSTS - indemnity costs - resistance to plaintiff's claim not reasonable Legislation Cited: Probate and Administration Act 1898 Civil Procedure Act 2005 Trustee Act 1925 Cases Cited: Re Craig (1952) 52 SR (NSW) 265 Re Baden's Trust Deeds; McPhail v Doulton [1971] AC 424 Texts Cited: Maclean, Trusts and Powers, Law Book Company, 1989 Category: Principal judgment Parties: Alan Saffron (Plaintiff) Edwin Maxwell Cowley (1st Defendant) Victor Bogan (2nd Defendant) Representation: Counsel: M S White with B D Kaplan (Plaintiff) B Coles QC with A C Harding (Defendants) Solicitors: M + K Lawyers (Plaintiff) Tresscox Lawyers (Defendants) File Number(s): 2011/305017