Carol Boian & Ors; Re Estate of Dan Antonio Boian [2014] NSWSC 800

Supreme Court New South Wales

Medium Neutral Citation: Carol Boian & Ors; Re Estate of Dan Antonio Boian [2014] NSWSC 800 Hearing dates: 11 June 2014 Decision date: 11 June 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Order that the plaintiffs as administrators exercise the statutory power of appropriation to distribute remaining estate assets. Order that the plaintiffs sell the estate's shares in Ark Health Care Services Pty Ltd to Dimitru Stefan Boian for the sum obtained by independent valuation. Plaintiffs' costs and those of the solicitors advising with regards to the two youngest beneficiaries, to be paid out of the estate on the indemnity basis. Catchwords: SUCCESSION - deceased died intestate - letters of administration were granted to the deceased's widow and three of his adult children - whether administrators should exercise their statutory power of appropriation to distribute remaining estate assets where this involves dealing with assets not readily convertible into cash possibly for their own benefit as beneficiaries - whether conflict of interest and duty as trustees - whether adjustments in distribution of estate held shares should be made to account for majority and minority holdings - whether estate shares in company should be sold for a sum obtained through independent valuation. Legislation Cited: Conveyancing Act 1919, s 153, s 154Trustee Act 1925 (NSW), s 46(1) Cases Cited: Barclay v Owen (1889) 60 LT 220 Kane v Radley-Kane [1999] Ch 274 Charteris, In re; Charteris v Biddulph [1917] 2 Ch 379 Lloyds Bank plc v Duker [1987] 1 WLR 1324 Public Trustee v Cooper [2001] WTLR 901 Wigley v Crozier [1909] HCA 86; 9 CLR 425 Re Bird Precision Bellows Ltd [1984] Ch 419; [1986] Ch 658 Re Gamble (1915) 32 WN (NSW) 121, Re; Henley (2013) 17 BPR 32435Re Marshall [1914] 1 Ch 192 Re Sandeman's Will Trusts, Re; Sandeman v Hayne [1937] 1 All ER 368 Re Weiner [1956] 1 WLR 579 Virdi v Abby Leisure [1990] BCLC 342 Texts Cited: Martyn, J. R., Caddick QC, N., Williams, Mortimer and Sunnucks - Executors, Administrators and Probate, 20th ed. (Sweet &Maxwell, 2013) Hayton, D., Matthews, P., and Mitchell, C., Underhill and Hayton Law of Trusts and Trustees, 18th ed. (Butterworths, 2010) Lonergan W., The Valuation of Businesses, Shares And Other Equity, 4th ed (Allen and Unwin 2003) Category: Principal judgment Parties: Carol Boian (first plaintiff) Daniel Boian (second plaintiff) Michael Boian (third plaintiff) Kathleen Boain (fourth plaintiff) Representation: Counsel: Mr M.K. Meek SC (first, second, third and fourth plaintiffs) Solicitors: Ms A.M. Kennedy, Teece, Hodgson & Ward Solicitors ((first, second, third and fourth plaintiffs) Mr G. Salier, Gordon A Salier File Number(s): 2013/206954 Publication restriction: None