Leigh v Wall Re: Estate Clifford Collins [1999] NSWSC 38 (9 February 1999)

Last Updated: 26 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Leigh v Wall Re: Estate Clifford Collins [1999] NSWSC 38

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3280/98

HEARING DATE{S): 9 February 1999

JUDGMENT DATE: 09/02/1999

PARTIES:

Donna Leigh (Plaintiff)

Wrothwell Garth Wall (Defendant

JUDGMENT OF: Windeyer J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. M. Vincent (Plaintiff)

Mr. A.M. Gruzman (Defendant)

SOLICITORS:

Elliot & Sochacki (Plaintiff)

Wroth Wall (Defendant)

CATCHWORDS:

SUCCESSION - EXECUTORS AND ADMINISTRATORS - Proceedings by executors or administrators - claim for trust property

ACTS CITED:

DECISION:

JUDGMENT:

- 5 -

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

WINDEYER J

TUESDAY 9 FEBRUARY 1999

3280/98 DONNA LEIGH v WROTHWELL GARTH WALL- ESTATE OF CLIFFORD McRAE COLLINS

JUDGMENT

1 HIS HONOUR: In this matter, the plaintiff, who is the administrator with the will annexed of the estate of Clifford McRae Collins, seeks an order that the defendant take action and sign whatever documents are necessary to effect the release of a Chopard watch, being an asset in the estate of the deceased, from the custody of the Commonwealth Bank of Australia to her.

2 Mr Collins died on 28 May 1996. He made a will dated 30 January 1995, under which he appointed Mr Bruno Kortenhorst executor, and gave the whole of his estate to the plaintiff, Donna Leigh.

3 The deceased died as a result of an aeroplane accident, he being the pilot of the plane. Mr Kortenhorst was a passenger in that plane, and was quite seriously injured in the crash. He has now brought proceedings in the District Court of New South Wales against the plaintiff as administrator, for damages for the injuries which he sustained in the action.

4 On the evidence before the court, that claim, if it is successful, would result in a substantial judgment for damages against the estate.

5 The letters of administration document includes, as is normal, an inventory of property. This shows that the assets of the plaintiff separately owned are estimated to have a value of $115,000, the watch comprising $100,000 of that figure.

6 There were apparently some other shares which may have been held with other persons as joint tenants, but that is not clear.

7 There was correspondence between the solicitors for the plaintiff beneficiary over a considerable period with the solicitor for Mr Kortenhorst, some of which made inappropriate demands for property to be delivered to the plaintiff.

8 In some of that correspondence a suggestion was made that it would be inappropriate for Mr Kortenhorst to apply for probate of the will of the deceased, because he might wish to make a claim against the estate, particularly as it appears there is likely to be some question as to whether or not the deceased was covered by appropriate insurance in respect of a claim for negligence against him or his estate.

9 Whether for this reason or not, by document dated 2 September 1996, Mr Kortenhorst renounced probate of the will, although his solicitors did not inform the solicitors for the plaintiff of this for some time, and wrote a letter on 8 October 1996 which on its face was misleading.

10 The plaintiff obtained a grant of letters of administration with the will annexed on 24 December 1996. She thus became entitled to call for and get in the whole of the estate of the deceased.

11 A short time prior to obtaining that grant, an agreement was reached between the solicitors that the watch would be placed in a safe deposit box at the Commonwealth Bank, Mullumbimby in the names of Mr Wall and Mr Sochakwi, the two solicitors, as co-trustees pending the resolution of the estate matter(s). The watch was deposited, it seems, in accordance with that agreement on 20 December 1996, namely four days before the grant of administration.

12 There was then some further correspondence between the solicitors about the watch being taken from that safety deposit box with the Commonwealth Bank and delivered into the possession of the plaintiff or her solicitor.

13 The defendant, Mr Wall, has refused to sign the documents necessary to enable the bank to release the watch, apparently on the basis that he is acting for Mr Kortenhorst in his claim for personal injuries, and one can assume is concerned that if the watch is handed to the plaintiff, the proceeds of its sale, if it is sold, may not be available to meet the amount of any judgment which his client, Mr Kortenhorst, obtains against the estate.

14 Mr Sochakwi has had correspondence with the Commonwealth Bank of Australia, in essence demanding that it hand the watch to him, presumably on authority from Donna Leigh. However, the bank obviously will not do so without instructions from Mr Wall, as that is the condition of the deposit with the bank.

15 One might get the impression from the letter to the bank of 7 February 1997, that it was intended the property be transferred to the plaintiff, but I do not think it should be thought that letter meant that the plaintiff was to treat the watch as if it was her property. In fact the most recent letter of 4 June 1998 from Mr Sochakwi to Mr Wall makes it perfectly clear I think that that was never the intention, and certainly is not now the intention.

16 Whatever the position, before the grant of letters of administration, there can be no doubt that upon that grant being obtained, the plaintiff was entitled to take possession of all estate property, and was bound to do so. Not only that, she was bound to deal with it as administrator, in due course of administration.

17 There was no basis on which the watch could have just been left in the bank not under the control of the administrator, or in my view there was no agreement that that would happen, and that the letter relied upon by Mr Wall was an agreement that the watch was to stay in the bank, pending the estate being put in a position for final distribution.

18 Any such agreement would, as a matter of interest, make Mr Wall susceptible to some claim by persons who had proper claims against the estate. Thus, in my view it is clear that the plaintiff is entitled to the order against Mr Wall that he execute documents authorising the release to the plaintiff of the watch.

19 It has been put by Mr Gruzman that this ought not to be done, because there is some danger that the plaintiff will not deal with that watch in accordance with her duties as administrator. There is no evidence before the court to show that to be the position.

20 Thus, there would be no basis for any order in the nature of a Mareva Injunction, if such an order were sought, which I should make clear has not been sought.

21 The other relief which the plaintiff seeks in the summons is a declaration that the defendant holds the watch in trust for her. That is not an appropriate declaration to make, because the plaintiff's solicitor, as well as the defendant, hold the watch in trust for her as administrator. If the parties wish that declaration to be made now, I would be prepared to consider it. However, on the face of the matter, that does not seem to be necessary.

22 I order the defendant to execute and deliver to the plaintiff or her solicitor, all documents and authority to enable the Chopard watch, now deposited in the Commonwealth Bank of Australia at Mullumbimby, and held upon the joint instructions of Mr Sochakwi and Mr Wall to be delivered to the plaintiff as administrator with the will annexed of the estate of Clifford McRae Collins, deceased.

23 The costs are to follow the event. I order the defendant to pay the plaintiff's costs.

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LAST UPDATED: 26/03/1999