Whalebone v Andrews [2016] NSWDC 149

District Court New South Wales

Medium Neutral Citation: Whalebone v Andrews [2016] NSWDC 149 Hearing dates: 2 July; 6 and 7 August; 11 November 2015; 5 and 8 February 2016 Date of orders: 30 June 2016 Decision date: 30 June 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff against the defendant in the sum of $117,274.50. (2) Argument on costs to be reserved to a date to be fixed. Catchwords: CONTRACT – parties are brothers - terms of offer – whether there was acceptance – effect of counter-offer TORT – conversion - plant and stock Legislation Cited: Conveyancing Act 1919, s 127 Real Property Act 1900, s 51 Cases Cited: Hyde v Wrench (1840) 3 Beav 334 RT & YE Falls Investments Pty Ltd v The State of New South Wales and Ors [2001] NSWSC 1027 Stevenson, Jaques & Co v McLean (1880) 5 QBD 346 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Roger Michael Whalebone (plaintiff) Derek Noel Andrews (defendant) Representation: Counsel: Mr B Quinn (plaintiff) Mr M Bennett (defendant)

Solicitors: Bamford Lawyers (plaintiff) Booth Brown Samuels & Olney (defendant) File Number(s): 2012/115617 Publication restriction: None

Judgment

Introduction 1. By November 2008 Roger Whalebone and Derek Andrews, who are brothers, owned 75% and 25% shares respectively of a property known as Rockey Hall, located at Bakers Swamp near Wellington, New South Wales. They also owned the associated plant equipment and stock in the same proportions. Their interests resulted from the provisions of the will of their father who died in 2007 leaving his estate to his four children in equal shares, and from the purchase by Mr Whalebone of the interests of the other two of his siblings, Christopher Whalebone and Jennifer Kelly. Probate was granted to Mr Andrews and Christopher Whalebone, the executors appointed under the will. 2. Mr Andrews commenced living at the property shortly before his father's death. He has remained in sole occupation of the property since that time, conducting business at the property using the land, plant and equipment and stock, including by selling livestock. At no stage has he accounted to Mr Whalebone for Mr Whalebone's interest in the sold livestock, or in any other respect.