Murray v McOnie [2019] NSWSC 189

Supreme Court New South Wales

Medium Neutral Citation: Murray v McOnie [2019] NSWSC 189 Hearing dates: 25 February 2019 Date of orders: 25 February 2019 Decision date: 07 March 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Note that the plaintiff has agreed to allow access to the garage at the Ben Boyd Road property by any one or more of the defendants to these proceedings or a representative on their behalf in order for the defendants to the proceedings to inspect the contents of the Ben Boyd Road unit which are stored in the garage, for the purpose of identifying and removing any of the contents that any of the defendants wishes to retain. 2. Note that the provision of access is to be by collection of a key by arrangement with the real estate agents appointed in relation to the property and that while the defendants or their legal representatives are in possession of the key, for the purpose of having access to the garage, the property in the garage remains at their risk. 3. Order that, in the events that have transpired, the executor of the estate of the late Agnese McOnie would be justified in dealing with any contents of the property currently stored in the garage at the Ben Boyd Road unit, and not collected by or on behalf of the defendants by 26 March 2019, by disposing of those contents by causing them to be delivered to a waste disposal facility on or after 27 March 2019. 4. Direct that the plaintiff notify the second and third defendants by email of the orders that have been made today. 5. Direct that the defendants file and serve by 3 April 2019 any written submissions in reply to the plaintiff's submissions on costs with a view to costs orders being made on the papers. 6. Give liberty to the parties to apply on 48 hours' notice. Catchwords: EQUITY — Trusts and trustees — Judicial advice –– whether executors of deceased estate would be justified in disposing of contents currently stored in garage of deceased's unit by causing them to be delivered to waste disposal facility –– where the beneficiaries under the will have not collected the contents of the unit which has been sold at auction –– judicial advice given that executor would be justified in so disposing of any of the contents currently stored in the unit and not collected by any of the defendants or a representative on their behalf by 26 March 2019 Legislation Cited: Bankruptcy Act 1966 (Cth), s 133 Trustee Act 1925 (NSW), s 63(1) Cases Cited: Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700 Texts Cited: P Butt et al, Encyclopaedic Australian Legal Dictionary (Lexis Nexis) G D Pont et al, Halsbury's Laws of Australia (Lexis Nexis, vol 315) J D Heydon and M J Leeming (eds), Jacobs' Law of Trusts in Australia (Lexis Nexis, 7th ed, 2006) Category: Principal judgment Parties: Pamela Ann Murray (Plaintiff) Megan Ann McOnie (First Defendant) David John McOnie (Second Defendant) Paul Pryde McOnie (Third Defendant) Representation: Counsel: D P Courtenay (Plaintiff, Solicitor) Megan McOnie (self represented via telephone link)