Fisher & Ors v Gordon; Estate of Jarvis [2012] NSWSC 1397

Fisher & Ors v Gordon; Estate of Jarvis [2012] NSWSC 1397

The plaintiffs did not establish a serious question to be tried. The will gave the executors discretion to sell estate assets when they deemed expedient, there was no suggestion of bad faith, misconception of discretion, arbitrariness, caprice or other impugnable conduct, and no clear evidence of adverse Israeli tax consequences or Australian tax prejudice was provided. The executors were not obliged themselves to obtain Israeli taxation advice, and no breach of duty was shown in their capacity as executors or as directors of Gerwill Pty Ltd. Interlocutory relief and mediation were therefore refused.

Jurisdiction
Australia
Judgment Date
08 November 2012
Procedural Posture
Wills and Estates Interlocutory Application / Application for Interlocutory Relief in Summons to Restrain Sale of Estate and Company Assets
Outcome
Claim for interlocutory relief in summons dismissed with costs.
Legal Topics
["executors' Power of Sale" 'fiduciary Obligations of Executors' 'duties to Beneficiaries' 'interlocutory Injunction' 'application for Referral to Mediation' "directors' Decision to Sell Company Property" 'revocation of Probate']
['wills and Estates' 'equity and Trusts' 'civil Procedure' 'corporations'] ["executors' Power of Sale" 'fiduciary Obligations of Executors' 'duties to Beneficiaries' 'interlocutory Injunction' 'application for Referral to Mediation' "directors' Decision to Sell Company Property" 'revocation of Probate']

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Procedural Posture

Wills and Estates Interlocutory Application / Application for Interlocutory Relief in Summons to Restrain Sale of Estate and Company Assets

Legal Issues

  1. 1 ['Whether the Court should restrain executors from selling estate real property where beneficiaries alleged adverse tax implications for some beneficiaries.' 'Whether the executors had a duty to obtain Israeli tax advice before exercising the power of sale.' "Whether the defendants' decision as directors of Gerwill Pty Ltd to sell company apartments could be challenged." 'Whether there was a serious question to be tried warranting interlocutory relief.' 'Whether the parties should be referred to mediation under s 26 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The plaintiffs did not establish a serious question to be tried. The will gave the executors discretion to sell estate assets when they deemed expedient, there was no suggestion of bad faith, misconception of discretion, arbitrariness, caprice or other impugnable conduct, and no clear evidence of adverse Israeli tax consequences or Australian tax prejudice was provided. The executors were not obliged themselves to obtain Israeli taxation advice, and no breach of duty was shown in their capacity as executors or as directors of Gerwill Pty Ltd. Interlocutory relief and mediation were therefore refused.

Court Disposition

Claim for interlocutory relief in summons dismissed with costs.

Orders

  • ['The claims for interlocutory relief in the summons be dismissed.' "The plaintiffs pay the defendant's costs of the application."]