Thompson (as Trustee for Webster Estate) v Broom [2019] NSWSC 623

Supreme Court New South Wales

Medium Neutral Citation: Thompson (as Trustee for Webster Estate) v Broom [2019] NSWSC 623 Hearing dates: 23 May 2019 Decision date: 30 May 2019 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Orders made for management of estate property the subject of a right of residence. Catchwords: SUCCESSION – Management of estate – Declaration first defendant possesses a right to reside in property – Orders for property to be sold by plaintiff – Plaintiff trustee unable to effect sale of subject property due to first defendant's right of residence and dispute over liability for outgoings – whether first defendant liable for outgoings – whether property can be sold otherwise than by public auction Legislation Cited: Conveyancing Act 1919 NSW. Cases Cited: Broom v Webster [2015] NSWSC 1128 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Phillip Andy Thompson as Trustee for the Estate of the Late Robert William Webster First Defendant: Patricia Ann Broom Second Defendant: Alwyn Warner Webster Representation: Counsel: Plaintiff: P Blackburn-Hart SC and S Reuben First Defendant: L Gyles SC Second Defendant: A Fernon

Solicitors: Plaintiff: Phillip Thompson & Associates First Defendant: John De Mattia & Co. Second Defendant: Joseph Grassi & Associates File Number(s): 2018/00320264

Judgment

INTRODUCTION 1. By a summons filed on 19 October 2018 and amended on 20 November 2018, the plaintiff (as trustee for the estate of the late Robert William Webster) applies to the Court for directions in management of the estate. 2. Reasons for judgment published by me as Broom v Webster [2015] NSWSC 1128 on 12 August 2015 explain the circumstances in which the plaintiff came to the office of trustee, and the nature of tensions between the children of the deceased (Mrs Patricia Broom, the first defendant; and Mr Alwyn Webster, the second defendant) in their capacity as beneficiaries of the estate. 3. The first round of proceedings – essentially, between the deceased's children – culminated in orders published in my reasons for judgment. 4. Those orders included (with editorial adaptation, to speak in terms of the current proceedings): 1. as the third order, A DECLARATION that the first defendant has "the right to reside" at a property at Penrith "for the term of her life or for so long as she may wish to reside there". 2. as orders 11-12 and 14, ORDERS for that property, and adjoining properties, to be sold by the plaintiff in the course of his administration of the deceased's estate. 1. The properties adjoining the property where the first defendant resides ("the subject property") have been sold in the course of administration of the deceased's estate. 2. This second round of proceedings follows the first because, contrary to expectations, the plaintiff has been unable to effect a sale of the subject property: 1. because the real estate advice given to him is to the effect that there is unlikely to be any prospective purchaser (other than the first and second defendants) of the freehold of the property subject to the first defendant's right of residence; and 2. because the first and second defendants have been unable to resolve their differences as to whether the first defendant is liable for outgoings on the property during the currency of her residence. 1. The plaintiff's application to the Court initially took the form of an application for judicial advice. Joinder of the defendants in the proceedings permitted questions of construction, as well as questions of estate management, to be canvassed. 2. The course of the proceedings was altered by the first defendant's filing on 12 February 2019 of a notice of motion, via which she seeks orders to the effect that orders 3, 11 and 12 of the orders made on 12 August 2015 be "varied". 3. To speak of those orders being "varied" is not entirely accurate. More correctly: (a) a supplementary declaration is sought to define with greater precision the terms of the first defendant's right of residence as regards outgoings; and (b) supplementary orders are sought to accommodate a solution to the problem of how the deceased's estate can be managed in the current setting, given the impracticality of any sale of the subject property to a third party in the absence of a resolution of disputation between the first and second defendants. 4. The plaintiff obtained a valuation of the subject property as at 2 October 2018 which estimated the value of the property on three alternative bases: 1. the market value of the unencumbered freehold of the property, with vacant possession, was estimated to be $780,000. 2. the market value of the property, subject to the first defendant's right of residence (on the basis that she is liable for outgoings) was estimated at $400,000 3. the market value of the property, subject to the first defendant's right of residence (on the basis that the estate is liable for outgoings) was estimated at $350,000. 1. The first defendant has offered to buy the property from the plaintiff for $400,000. The second defendant objects to such a transaction; but he refrains from making any offer for the property himself, contending that the property be offered for sale by public auction.