Tipple v Phillips [2019] NSWSC 933

Supreme Court New South Wales

Medium Neutral Citation: Tipple v Phillips [2019] NSWSC 933 Hearing dates: 18 July 2019 Date of orders: 18 July 2019 Decision date: 18 July 2019 Jurisdiction: Equity Before: Kunc J Decision: Judicial advice given Catchwords: EQUITY – Trusts and trustees – Judicial advice – Dispute between executor and beneficiaries Legislation Cited: Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Stuart Graeme Holden Tipple (Plaintiff)

Nerolie Phillips (First Defendant) Kaylene Cook (Second Defendant) Representation: Counsel:

P Menadue (Plaintiff)

N Phillips (First Defendant – self-represented) K Cook (Second Defendant – self-represented)

Solicitors:

Kent Law Group (Plaintiff) File Number(s): 2018/390652 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. In form, these are proceedings for judicial advice pursuant to s 63(1) of the Trustee Act 1925 (NSW). In reality, they are a means of resolving a dispute between two beneficiaries and the executor of their late mother's estate ("Estate"). 2. The plaintiff, Mr Tipple, is a solicitor and the executor of the estate of the late Helen Muriel Potter (Mrs Potter). Mrs Potter died on 22 June 2016. She and her husband, Mr Potter, lived in a unit in a retirement village (the "Unit"). 3. Under her will, after providing for Mr Potter to live in the Unit for his lifetime, Mrs Potter essentially left the Estate to her three adult children in equal shares. Without intending any disrespect, I shall refer to her children by their Christian names: Nerolie, Kaylene and Warren (together, the "Beneficiaries"). 4. Warren has played no part in these proceedings. For good order, and given the costs orders that I propose to make, Nerolie and Kaylene will be formally joined as defendants to the proceedings. 5. The Estate currently comprises approximately $90,000 in cash. No payment has yet been made from the Estate in relation to the costs of these proceedings, other than the filing and hearing fees. 6. By the time of the hearing, the only contested issue was whether Mr Tipple should be given the advice he now seeks: that he would be justified in completing the administration of the Estate without taking any further steps to challenge a Valuation of the Unit as at 1 December 2016 of $250,000 (the "Valuation") in an endeavour to increase the monetary benefit of the Unit to the Estate. 7. Nerolie, to some extent supported by Kaylene, submits that Mr Tipple should challenge the Valuation. She says that the correct Valuation should have been between $350,000 to $400,000. However, she has no evidence to support that assertion. Furthermore, even if she were correct, Nerolie and Kaylene now accept that the additional benefit to the Estate would only be approximately $20,000 to $30,000 before the costs of pursuing the matter are taken into account. 8. In those circumstances, the Court is satisfied that Mr Tipple should be given the advice he seeks and that he should proceed to complete the administration of the Estate. These proceedings were properly brought, so he is entitled to his costs of the proceedings out of the Estate on the trustee basis. Given their respective roles in causing these proceedings, Mr Tipple's costs should be paid out of the Estate by being borne by Nerolie and Kaylene's respective shares. Nerolie has agreed, in that eventuality, that three-quarters of those costs should come from her share and only one quarter from Kaylene's. 9. Mr P Menadue of Counsel appeared for Mr Tipple. Nerolie and Kaylene represented themselves. Given the small size of the Estate, and the fact that Nerolie and Kaylene were without legal representation, I have approached the matter with as little formality and technicality as possible with a view to resolving the real issues in dispute between the parties in a way that is just, quick and cheap so as to enable this small estate to be finally administered without further delay.