Chick v Grosfeld [2012] NSWSC 1166

Supreme Court New South Wales

Medium Neutral Citation: Chick v Grosfeld [2012] NSWSC 1166 Hearing dates: 6, 7, 8 and 16 February 2012 Decision date: 25 September 2012 Jurisdiction: Equity Division Before: White J Decision: Refer to paras [102] and [104] of judgment. Catchwords: WILLS, PROBATE AND ADMINISTRATION - executors - application for removal of executor - allegations that executor mismanaged affairs of estate - where funds were paid into working account of company owned by executor - no authorisation for executor to mix estate moneys with his own - executor concealed movement of money by wrongly describing payments made - where accountant and financial advisor appointed as executor and trustee of will - clause in will authorising right to charge professional hourly rate "in connection with the trusts in this Will" payable from the estate - executor withdrew moneys on account of such remuneration in advance of the doing of work for which invoices were later rendered - time sheets provided were not contemporaneous - amounts charged were excessive - whether estate as been put into jeopardy by reason of breaches of duty

WILLS, PROBATE AND ADMINISTRATION - letters of administration with the will annexed - appointment of administrator - proposed trustee company declined to act - where plaintiffs sought order that chartered accountant be appointed as administrator - where no evidence of fitness to be appointed as executor nor of experience as trustee or executor of will - no evidence of knowledge of ongoing dispute between beneficiaries - no evidence of willingness to be appointed if not entitled to charge - appointment of the NSW Trustee and Guardian pursuant to NSW Trustee and Guardian Act 2009, s 22 Legislation Cited: Probate and Administration Act 1898 Family Provision Act 1982 Taxation Administration Act 1953 (Cth) NSW Trustee and Guardian Act 2009 Cases Cited: Brown v Grosfeld; Fitzpatrick v Grosfeld [2011] NSWSC 796 Brown & Anor v Grosfeld [2011] NSWSC 1429 Fitzpatrick v Grosfeld [2011] NSWSC 1428 Bates v Messner (1967) 67 SR (NSW) 187 Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 694 Sacks v Gridiger (1990) 22 NSWLR 502 Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported) Texts Cited: R Geddes, C Rowland & P Studdert, Wills, Probate and Administration Law in New South Wales (1996) LBC Information Services 1996 Category: Principal judgment Parties: Murray Chick (Plaintiff) Johannes Theodorus Grosfeld (Defendant) Representation: M McAuley (Plaintiff) A Lakeman (Defendant) McAuley Hawach (Plaintiff) Angela Anthony & Associates (Defendant) File Number(s): 2010/258874