Eastlake v Eastlake [2015] NSWSC 1772

Supreme Court New South Wales

Medium Neutral Citation: Eastlake v Eastlake [2015] NSWSC 1772 Hearing dates: 3 and 4 November 2015 Date of orders: 01 December 2015 Decision date: 01 December 2015 Jurisdiction: Equity Before: Young AJA Decision: Order that the Defendant, as executor of the estate of Jasper Eastlake, pay the Plaintiff $2,250.

No order as to the costs of the proceedings. Catchwords: BREACH OF EXECUTOR'S DUTY – Removal of Executor – Duty of Executor to provide Account Cases Cited: Armory v Delamirie (1722) 1 Str 505; (1722) 93 ER 664 Bates v Messner (1967) 67 SR (NSW) 187 Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 Ide v Ide [2004] NSWSC 751; (2004) 184 FLR 44 Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Parker v Paton (1941) 41 SR (NSW) 237 Pit v Cholmondeley (1754) 2 Ves Sen 565; (1754) 28 ER 360 Wight v Robinson [2013] NSWSC 1229 Category: Principal judgment Parties: Gregory James Eastlake (Plaintiff) Graeme Anthony Eastlake (Defendant) Representation: Counsel: Mr T Hall (solicitor) (Plaintiff) Mr R Weaver (Defendant)

Solicitors: Hall Partners Pty Limited (Plaintiff) Higgins Lawyers (Defendant) File Number(s): 2014/175707

Judgment 1. HIS HONOUR: This is a dispute between two brothers over the administration of the estate of their father, the Late Jasper Eastlake, who died on 16 April 2014. The deceased left a Will bearing the date 25 June 2009, Probate whereof was granted to the Defendant on 6 August 2015. 2. By his amended Statement of Claim, the Plaintiff, Gregory Eastlake, seeks a declaration that the Defendant, Graeme Eastlake, is in breach of his duty as executor. The alleged breaches focus on: (a) the sale of the testator's home property for what is said to be an undervalue; (b) an allegation that the executor has not accounted for the testator's cash monies; (c) that the executor has not transferred to the Plaintiff a speedboat or fishing boat which he received under the Will; and (d) that the executor has not collected the benefit of the deceased's funeral fund. 3. The Plaintiff seeks removal of the executor or, alternatively, an account. The Defendant resists the claim and says that he did nothing improper. 4. I heard the proceedings on 3 and 4 November 2015 when Mr T Hall, Solicitor, appeared for the Plaintiff, and Mr R Weaver of Counsel appeared for the Defendant. 5. I should deal with each of the matters a, b, c and d, and also with the allegation by the Defendant (issue (e)) that these proceedings were merely brought out of spite, and then deal with the consequences of my findings.