Lorand Loblay and Karen Loblay [2013] NSWSC 1195

Lorand Loblay and Karen Loblay [2013] NSWSC 1195

The executors are justified in defending the principal claim and prosecuting a cross claim to recover the debt, as the Statement of Facts and advice of counsel establish that their proposed actions are proper in the circumstances and in accordance with their duties as executors to get in the estate's assets.

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Judicial Advice Application / Judgment on Application for Judicial Advice
Outcome
Orders made granting judicial advice to the executors to defend and cross claim, directions regarding notice to residuary beneficiaries, and costs to be paid from the estate.
Legal Topics
['judicial Advice to Trustees' 'trustee Obligations' 'defending Claims by Beneficiaries' 'executor Duties' 'interpretation of Trust Deeds']
['equity' 'trusts and Estates'] ['judicial Advice to Trustees' 'trustee Obligations' 'defending Claims by Beneficiaries' 'executor Duties' 'interpretation of Trust Deeds']

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Procedural Posture

Judicial Advice Application / Judgment on Application for Judicial Advice

Legal Issues

  1. 1 ['Whether executors as trustees should defend proceedings brought by beneficiaries of the trust and bring a cross claim to recover a debt asserted to be owed to the estate' 'Whether the trustee is indebted to the estate of the deceased' 'Whether distribution and creation of the debt under the trust was within trustee powers or for an improper purpose' 'Effect of alleged trust deed variation and effect on vesting of trust capital' 'Requirement for notice under trust deed for capital distributions']

Ratio Decidendi

The executors are justified in defending the principal claim and prosecuting a cross claim to recover the debt, as the Statement of Facts and advice of counsel establish that their proposed actions are proper in the circumstances and in accordance with their duties as executors to get in the estate's assets.

Court Disposition

Orders made granting judicial advice to the executors to defend and cross claim, directions regarding notice to residuary beneficiaries, and costs to be paid from the estate.

Orders

  • ['The court orders that Lorand Loblay and Karen Loblay as executors of the estate of Emery George Nemes would be justified in defending and bringing a cross claim in proceedings No 2013/177990 and are entitled to act in accordance with the advice of Christopher Birch SC and Benjamin DeBuse dated 7 August 2013.' 'The...