Creer & Anor - The Estate of Peters [2007] NSWSC 1291

Creer & Anor - The Estate of Peters [2007] NSWSC 1291

The correct approach is to treat distributions from the winding up of the private companies as capital for the purpose of passing estate accounts and awarding commission; the Deputy Registrar's lump sum allowance for commission of $120,000 did not accord with the proportional and reasonable approach in light of the work and responsibility involved and the amended totals. Allowance of $155,000 as a lump sum is a just and reasonable award for the period, covering all relevant activities of the executors as such, not as company directors.

Parties
Plaintiff: James Neil Creer; Plaintiff: John Arthur Sheridan
Jurisdiction
Australia
Judgment Date
19 November 2007
Procedural Posture
Probate Review of Registrar's Decision / Application for Review of Deputy Registrar's Decision Regarding Executors' Commission
Outcome
Order of Deputy Registrar varied; commission increased.
Legal Topics
Executors' Commission, Review of Registrar's Decision, Approach to Review, Treatment of Distributions From Companies on Liquidation, Remuneration of Executors
Wills, Probate and Administration Executors' Commission Review of Registrar's Decision Approach to Review Treatment of Distributions From Companies on Liquidation Remuneration of Executors

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Parties

James Neil Creer

Plaintiff

John Arthur Sheridan

Plaintiff

Procedural Posture

Probate Review of Registrar's Decision / Application for Review of Deputy Registrar's Decision Regarding Executors' Commission

Legal Issues

  1. 1 Whether the Registrar's decision on commission to executors should be varied
  2. 2 Whether distributions received upon liquidation of companies should be treated as capital or income
  3. 3 Approach to the review of Registrar's discretionary decisions in probate matters

Ratio Decidendi

The correct approach is to treat distributions from the winding up of the private companies as capital for the purpose of passing estate accounts and awarding commission; the Deputy Registrar's lump sum allowance for commission of $120,000 did not accord with the proportional and reasonable approach in light of the work and responsibility involved and the amended totals. Allowance of $155,000 as a lump sum is a just and reasonable award for the period, covering all relevant activities of the executors as such, not as company directors.

Court Disposition

Order of Deputy Registrar varied; commission increased.

Orders

  • The certificate as to correctness of the third accounts to be amended to certify capital realizations of $18,237,487 and income collections of $376,033.
  • Order of Deputy Registrar Haggett of 29 August 2007 varied by substituting $155,000 for $120,000 as the allowance for commission.