Ell, Richard Austin v Ell, Stephen Maxwell [2015] NSWCA 38

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ell, Richard Austin v Ell, Stephen Maxwell [2015] NSWCA 38 Hearing dates: 23 February 2015 Decision date: 06 March 2015 Before: Basten JA at [1]; Ward JA at [60]; Gleeson JA at [61] Decision: (1)Allow the appeal and set aside order (2) made in the Equity Division on 19 March 2014 dismissing the proceedings brought by Richard Austin Ell.

(2)Set aside the order made on 5 May 2014 that the plaintiff, Richard Austin Ell, pay the defendant's [sic] costs on the ordinary basis.

(3)Declare that, pursuant to cl 5 of the will of Austin Maxwell Ell, deceased, the amount of $857,953 owing by Richard Austin Ell to the deceased was released.

(4)Order that the defendants pay one-half of the plaintiff's costs of the trial.

(5)Order that the respondents pay the appellant's costs of the appeal.

(6)Grant the parties liberty to apply, exercisable within 28 days of the date of this judgment, with respect to any consequential orders or directions.

(7)Grant the respondents a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. Catchwords: CONTRACT – agreement between testamentary beneficiaries on conditional release of debt to the estate – whether agreement created debt enforceable by executors – effect of termination of agreement

ESTOPPEL - estoppel by convention – whether agreement between beneficiaries of the estate founded on common assumption that there was an enforceable debt to the estate – whether agreement revealed adoption of common assumption