Johnson v Trotter; Estate of Trotter [2006] NSWSC 67

Johnson v Trotter; Estate of Trotter [2006] NSWSC 67

Mr Trotter was not liable to pay an occupation rent because he had Ms Johnson's consent when he moved into the property, that consent in substance continued through the relevant period, there was no pleaded ouster, and his continued occupation was not inconsistent with his duties as executor to act for both beneficiaries and realise the property to best advantage. A further affidavit about personal papers was refused because the documents were not identified with sufficient particularity, Mr Trotter had already given evidence of his dealings with papers, and a further affidavit would serve no useful purpose. The personal chattels were to be dealt with by the distribution, inspection,...

Jurisdiction
Australia
Judgment Date
09 February 2006
Procedural Posture
Equity Division Proceedings Concerning Administration of a Deceased Estate / Judgment After Hearing; Plaintiff Directed to Bring in Short Minutes of Order
Outcome
Plaintiff's claim for an occupation fee dismissed; application for a further affidavit refused; directions given for division or sale of chattels; no order as to costs; plaintiff directed to bring in short minutes of order.
Legal Topics
['co Executors and Beneficiaries' 'occupation Fee for Estate Property' 'fiduciary Duty of Executor' 'personal Papers of Deceased' 'division of Personal Chattels' 'passing of Accounts' 'costs Where Parties Have Mixed Success']
['wills, Probate and Administration' 'equity' 'trusts' 'costs'] ['co Executors and Beneficiaries' 'occupation Fee for Estate Property' 'fiduciary Duty of Executor' 'personal Papers of Deceased' 'division of Personal Chattels' 'passing of Accounts' 'costs Where Parties Have Mixed Success']

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Procedural Posture

Equity Division Proceedings Concerning Administration of a Deceased Estate / Judgment After Hearing; Plaintiff Directed to Bring in Short Minutes of Order

Legal Issues

  1. 1 ['Whether Mr Trotter should pay rent or an occupation fee for all or part of the time he occupied the Clanalpine Street property up to 4 September 2003.' 'Whether Mr Trotter should be required to swear a further affidavit describing how he dealt with personal papers of the deceased and her late husband.' 'How the personal chattels of the deceased should be disposed of or distributed between the beneficiaries.' 'What costs order should be made.']

Ratio Decidendi

Mr Trotter was not liable to pay an occupation rent because he had Ms Johnson's consent when he moved into the property, that consent in substance continued through the relevant period, there was no pleaded ouster, and his continued occupation was not inconsistent with his duties as executor to act for both beneficiaries and realise the property to best advantage. A further affidavit about personal papers was refused because the documents were not identified with sufficient particularity, Mr Trotter had already given evidence of his dealings with papers, and a further affidavit would serve no useful purpose. The personal chattels were to be dealt with by the distribution, inspection,...

Court Disposition

Plaintiff's claim for an occupation fee dismissed; application for a further affidavit refused; directions given for division or sale of chattels; no order as to costs; plaintiff directed to bring in short minutes of order.

Orders

  • ['The plaintiff is directed to bring in short minutes of order in accordance with the reasons.' 'No order as to costs of the proceedings.' 'Short minutes should include provision dispensing with the requirements under Pt 78 Rules 75 and 76 of the Supreme Court Rules in relation to commencement by summons and...