Hammond v Hammond [2010] NSWSC 331

Hammond v Hammond [2010] NSWSC 331

The defendant had no entitlement to include the superannuation fund death benefit as part of the estate residue because it was not in fact an estate asset; neither the objective construction of the agreement nor the requirements for rectification were satisfied; the defendant breached trust and the orders of March 2007 by paying the residue of the estate to himself.

Parties
Plaintiff, Cross Defendant: John Joseph Hammond by his Tutor Luke John Hammond; Defendant, Cross Claimant: Terence Sydney Hammond
Jurisdiction
Australia
Judgment Date
27 April 2010
Procedural Posture
Equity Claim for Breach of Trust and Cross Claim for Construction or Rectification of Settlement Agreement / Judgment After Hearing
Outcome
Plaintiff's claim upheld; cross-claim dismissed
Legal Topics
Breach of Trust, Construction of Settlement Agreement, Rectification of Written Instrument, Administration of Estates, Superannuation and Death Benefits, Family Provision Act Proceedings
Equity Trusts Breach of Trust Construction of Settlement Agreement Rectification of Written Instrument Administration of Estates Superannuation and Death Benefits Family Provision Act Proceedings

Case Brief

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Parties

John Joseph Hammond by his Tutor Luke John Hammond

Plaintiff, Cross Defendant

Terence Sydney Hammond

Defendant, Cross Claimant

Procedural Posture

Equity Claim for Breach of Trust and Cross Claim for Construction or Rectification of Settlement Agreement / Judgment After Hearing

Legal Issues

  1. 1 Whether the executor breached trust in paying estate money to himself in contravention of earlier court orders
  2. 2 Whether the phrase 'residue of the estate' in agreed short minutes included a superannuation death benefit not an asset of the estate
  3. 3 Whether rectification or construction of the agreement was appropriate to include the death benefit

Ratio Decidendi

The defendant had no entitlement to include the superannuation fund death benefit as part of the estate residue because it was not in fact an estate asset; neither the objective construction of the agreement nor the requirements for rectification were satisfied; the defendant breached trust and the orders of March 2007 by paying the residue of the estate to himself.

Court Disposition

Plaintiff's claim upheld; cross-claim dismissed

Orders

  • Order the defendant to pay the plaintiff $77,230.
  • Order that the cross claim be dismissed.