Austin v Austin [1906] HCA 5

Austin v Austin [1906] HCA 5

Bullivant was not proved guilty of any negligence or breach of trust for which he could be held responsible, having regard to the employment of solicitors expressly authorized by the will and the circumstances. No greater care than that of an ordinary prudent man of business was shown to be required, and no loss arose that could be attributed to a breach by Bullivant.

Parties
Appellants: Stanley Austin, John Kenny, and Bishop (trustees of James Austin, deceased); Respondents: Albert Austin, A. H. Bullivant and H. E. Bullivant (executors of W. H. Bullivant, deceased)
Jurisdiction
Australia
Judgment Date
14 March 1906
Procedural Posture
Trustee—breach of Trust—negligence (appeal) / On Appeal From the Supreme Court of Victoria
Outcome
Appeal dismissed with costs
Legal Topics
Duties of Trustees, Negligence in Administration of Trust, Custody of Documents of Title, Unregistered Mortgages, Executor Responsibilities
Trusts and Estates Equity Duties of Trustees Negligence in Administration of Trust Custody of Documents of Title Unregistered Mortgages Executor Responsibilities

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Parties

Stanley Austin, John Kenny, and Bishop (trustees of James Austin, deceased)

Appellants

Albert Austin, A. H. Bullivant and H. E. Bullivant (executors of W. H. Bullivant, deceased)

Respondents

Procedural Posture

Trustee—breach of Trust—negligence (appeal) / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether Bullivant, as executor and trustee, was negligent in permitting Grey or his firm sole custody and control of an unregistered mortgage security
  2. 2 Whether Bullivant was negligent in not ensuring repayment and protection of the trust estate funds upon maturity of the mortgage
  3. 3 Whether the appointment of Taylor, Buckland & Gates as solicitors and their custody of the mortgage was justified by the will

Ratio Decidendi

Bullivant was not proved guilty of any negligence or breach of trust for which he could be held responsible, having regard to the employment of solicitors expressly authorized by the will and the circumstances. No greater care than that of an ordinary prudent man of business was shown to be required, and no loss arose that could be attributed to a breach by Bullivant.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs