Ellis v Ellis [2012] NSWSC 1414

Ellis v Ellis [2012] NSWSC 1414

The proposed sale of the estate land and related releases to Stratford Coal Pty Ltd were advantageous and in the interests of all persons interested under the will, and the trustee lacked any necessary power to effect the dealing with Lot 2; accordingly a power of sale should be conferred under s 81. The executor would be justified under s 63 in selling Lot 1, paying its net proceeds to the first defendant, treating the surrender of the first defendant's life interest in Lot 2 as accelerating the remaindermen's interests, and distributing the net proceeds of Lot 2 as one-third to the plaintiff, one-third to the second defendant, and one-third on the trusts for the third and fourth...

Jurisdiction
Australia
Judgment Date
15 November 2012
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and for an Order Under S 81 of the Trustee Act 1925 (nsw) Conferring a Power of Sale on the Executors and Trustee of a Will / Equity Division Duty List; Principal Judgment
Outcome
Orders made empowering the plaintiff to sell Lot 2, advising that the plaintiff would be justified in selling Lot 1 and distributing proceeds as specified, and ordering costs out of the estate.
Legal Topics
['judicial Advice' 'power of Sale' 'surrender of Life Estate' 'sale of Estate Land' 'advantageous Dealing' 'distribution of Proceeds of Sale']
['wills, Probate and Administration' 'trusts and Trustees'] ['judicial Advice' 'power of Sale' 'surrender of Life Estate' 'sale of Estate Land' 'advantageous Dealing' 'distribution of Proceeds of Sale']

Case Brief

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) and for an Order Under S 81 of the Trustee Act 1925 (nsw) Conferring a Power of Sale on the Executors and Trustee of a Will / Equity Division Duty List; Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff executor should be empowered under s 81 of the Trustee Act 1925 (NSW) to sell Lot 2 in Deposited Plan 815045 to Stratford Coal Pty Ltd.' 'Whether the plaintiff executor would be justified under s 63 of the Trustee Act 1925 (NSW) in selling Lot 1 in Deposited Plan 855240 and paying the net proceeds to the first defendant.' "How the net proceeds of sale of Lot 2 and the consideration for the Deed of Release in respect of Lot 2 should be dealt with after surrender of the first defendant's life estate." "Whether the plaintiff and the second defendant may receive their one-third shares on the basis that the Vesting Date was reached on surrender of the first defendant's life interest."]

Ratio Decidendi

The proposed sale of the estate land and related releases to Stratford Coal Pty Ltd were advantageous and in the interests of all persons interested under the will, and the trustee lacked any necessary power to effect the dealing with Lot 2; accordingly a power of sale should be conferred under s 81. The executor would be justified under s 63 in selling Lot 1, paying its net proceeds to the first defendant, treating the surrender of the first defendant's life interest in Lot 2 as accelerating the remaindermen's interests, and distributing the net proceeds of Lot 2 as one-third to the plaintiff, one-third to the second defendant, and one-third on the trusts for the third and fourth...

Court Disposition

Orders made empowering the plaintiff to sell Lot 2, advising that the plaintiff would be justified in selling Lot 1 and distributing proceeds as specified, and ordering costs out of the estate.

Orders

  • ['Order pursuant to s 81 of the Trustee Act 1925 (NSW) that the plaintiff be empowered to sell the land described as Lot 2 in Deposited Plan 815045 ("Lot 2") to Stratford Coal Pty Ltd, in accordance with the contract for the sale of land dated 18 October 2012, which is tab 14 to exhibit A, being the Statement of...