Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108

Saffron v Cowley & Anor; Estate of Saffron [2012] NSWSC 1108

The defendants breached their duties by taking advances on commission and fees without court order or will authority and in conflict with their duty to the estate. Their prompt rectification, following legal advice, resolved the substantive complaint. Plaintiff is entitled to indemnity costs due to unreasonable resistance and absence of defence.

Jurisdiction
Australia
Judgment Date
10 September 2012
Procedural Posture
Probate Proceedings / Final Judgment Post Hearing
Outcome
Plaintiff's claim disposed; costs awarded; orders made; undertaking noted; issues as to Marshin Trust validity referred to Attorney-General
Legal Topics
["executors' Obligations" 'advance on Commission' 'professional Remuneration' 'beneficiaries of Trusts' 'trusts for Charities' 'indemnity Costs']
['wills and Probate' 'trusts' 'costs'] ["executors' Obligations" 'advance on Commission' 'professional Remuneration' 'beneficiaries of Trusts' 'trusts for Charities' 'indemnity Costs']

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Procedural Posture

Probate Proceedings / Final Judgment Post Hearing

Legal Issues

  1. 1 ['Whether executors were entitled to pay themselves advances on commission without a court order' 'Whether executor can receive professional remuneration without authorising clause in will' 'Who are the beneficiaries of the Marshin Trust' 'Administrative validity and workability of the Marshin Trust' 'Entitlement to indemnity costs']

Ratio Decidendi

The defendants breached their duties by taking advances on commission and fees without court order or will authority and in conflict with their duty to the estate. Their prompt rectification, following legal advice, resolved the substantive complaint. Plaintiff is entitled to indemnity costs due to unreasonable resistance and absence of defence.

Court Disposition

Plaintiff's claim disposed; costs awarded; orders made; undertaking noted; issues as to Marshin Trust validity referred to Attorney-General

Orders

  • ["Note the first defendant's undertaking for repayment of $525,740 to the court." "Defendants to pay plaintiff's costs of the proceedings on the indemnity basis and without recourse to estate assets." 'Defendants given liberty to apply for indemnity from former lawyers under Civil Procedure Act 2005 s 99(2).'...