NSW Trustee and Guardian v Wardy [2020] NSWSC 18

Supreme Court New South Wales

Medium Neutral Citation: NSW Trustee and Guardian v Wardy [2020] NSWSC 18 Hearing dates: 30 November, 1 December 2017, 9 & 13 February 2018; 11 December 2018; final written submissions received January 2019. Date of orders: 29 January 2020 Decision date: 29 January 2020 Jurisdiction: Equity Before: Slattery J Decision: The Court orders that the property being proposed by the administrator, namely the George Street property, should be substituted for the property sold to pay the estate's debts. Orders made in relation to the administrator's costs of the proceedings. Directions made for the parties to advance further submissions in relation to costs and for the resolution of remaining incidental issues of estate administration. Catchwords: ADMINISTRATION OF ESTATES - specific devise – an administrator decides to satisfy some of an estate's substantial debts by selling certain real estate, which had been specifically gifted to named beneficiaries – the administrator and the specific devisees of the real estate propose the substitution in the gift to the devisees of a particular estate property, namely the George Street property, for the property that had been sold – other beneficiaries propose the substitution of a different property, or alternatively that the estate acquire a new property, as a substitute for the sold property – how should the rights of all beneficiaries among one another be adjusted, so that the specific devisees of the real estate that has been sold should now "be put into the same position [they] would have been if the property the subject of the specific legacy had not in fact been sold". Legislation Cited: Evidence Act 1995, s 69 Probate and Administration Act 1898, s 46C Succession Act 2006, Chapter 3 Trustee Act 1925, s 63 Valuation of Land Act 1916, s 6A Valuers Act 2003,ss 8, 45 Cases Cited: Ewer v Corbet (1723) 2 P Wms 148; (1723) 24 ER 676 Joyce v Cam (2004) 12 BPR 22,231 NSW Trustee and Guardian v Wardy [2017] NSWSC 1466 RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 Wardy v Wardy & Ors; The Estate of Edmund Wadih Wardy [2013] NSWSC 244 Wardy v Salieh; Wardy v The Estate of the late Edmond Wadih Wardy [2014] NSWSC 473 Category: Consequential orders (other than Costs) Parties: Plaintiff: NSW Trustee and Guardian First Defendant: John Wardy Representation: Counsel: