Nissen v Grunden [1912] HCA 35

Nissen v Grunden [1912] HCA 35

The Supreme Court of Victoria has jurisdiction to grant commission for both past and future services to executors, administrators, and trustees for their pains and trouble, and this is not limited by the summary provisions of the Administration and Probate Act 1890. The appointment of a successor trustee to resolve a conflict (salary as manager) was permissible; the removal of the trustee was unwarranted as there was no improper bargain or misconduct. Trustees who are blameless in appellate proceedings are entitled to be indemnified for costs out of the estate.

Parties
Appellant; Defendant; Trustee; Executor: Carl Johan Hjalmar Nissen; Appellant; Defendant; Trustee; Executor: Wilhelm Pallin; Appellant; Defendant; Trustee: August Sheldon; Testator: Knut Adolph Grunden (deceased); Respondent; Plaintiffs; Beneficiaries: Grunden infant children (via Lawrence Magnus Gillberg, next friend)
Jurisdiction
Australia
Judgment Date
30 May 1912
Procedural Posture
Appeal / High Court Appeal From Full Court of Supreme Court of Victoria
Outcome
Appeal allowed. Order of Full Court discharged except as to repayment of £42 15s. Judgment of Beckett J. restored with this exception.
Legal Topics
Commission for Executors and Trustees, Removal and Appointment of Trustees, Breach of Trust, Indemnity and Costs
Trusts and Estates Equity Succession Law Commission for Executors and Trustees Removal and Appointment of Trustees Breach of Trust Indemnity and Costs

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Parties

Carl Johan Hjalmar Nissen

Appellant; Defendant; Trustee; Executor

Wilhelm Pallin

Appellant; Defendant; Trustee; Executor

August Sheldon

Appellant; Defendant; Trustee

Knut Adolph Grunden (deceased)

Testator

Grunden infant children (via Lawrence Magnus Gillberg, next friend)

Respondent; Plaintiffs; Beneficiaries

Procedural Posture

Appeal / High Court Appeal From Full Court of Supreme Court of Victoria

Legal Issues

  1. 1 Jurisdiction to grant commission (remuneration) to executors and trustees
  2. 2 Power to appoint trustee and legality of trustee's retirement/appointment
  3. 3 Right of trustee to receive salary as manager

Ratio Decidendi

The Supreme Court of Victoria has jurisdiction to grant commission for both past and future services to executors, administrators, and trustees for their pains and trouble, and this is not limited by the summary provisions of the Administration and Probate Act 1890. The appointment of a successor trustee to resolve a conflict (salary as manager) was permissible; the removal of the trustee was unwarranted as there was no improper bargain or misconduct. Trustees who are blameless in appellate proceedings are entitled to be indemnified for costs out of the estate.

Court Disposition

Appeal allowed. Order of Full Court discharged except as to repayment of £42 15s. Judgment of Beckett J. restored with this exception.

Orders

  • Plaintiff's appeal to Supreme Court dismissed with costs against next friend.
  • Deposit of £25 to be paid to defendants towards costs.