Sutton v Wahlen [2000] NSWSC 1063

Sutton v Wahlen [2000] NSWSC 1063

Because the estate was not fully administered, there were outstanding testamentary expenses, the defendant joint executor failed to respond or appear, and the plaintiff provided valuation and draft contract evidence satisfying the Court that the proposed sale price and terms were proper, the Court authorised the proposed sale under s 153(4) of the Conveyancing Act 1919.

Jurisdiction
Australia
Judgment Date
14 November 2000
Procedural Posture
Application by One of Two Joint Executors for Leave or an Order Authorising Sale of Deceased Estate Real Property Under S 153(4) of the Conveyancing Act 1919 / Judgment on Application; Defendant Did Not Appear
Outcome
Application granted; orders made.
Legal Topics
['realising Estate Assets' 'joint Executors' 'sale of Deceased Estate Real Property' 'recalcitrant Executor' 'leave Under S 153(4) of the Conveyancing Act 1919']
['succession' 'equity' 'trusts' 'property'] ['realising Estate Assets' 'joint Executors' 'sale of Deceased Estate Real Property' 'recalcitrant Executor' 'leave Under S 153(4) of the Conveyancing Act 1919']

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Procedural Posture

Application by One of Two Joint Executors for Leave or an Order Authorising Sale of Deceased Estate Real Property Under S 153(4) of the Conveyancing Act 1919 / Judgment on Application; Defendant Did Not Appear

Legal Issues

  1. 1 ['Whether one joint executor should be authorised to sell estate real property where the other joint executor has declined to respond or participate.' 'Whether the evidence established that the proposed sale price and terms were proper for the purposes of s 153(4) of the Conveyancing Act 1919.']

Ratio Decidendi

Because the estate was not fully administered, there were outstanding testamentary expenses, the defendant joint executor failed to respond or appear, and the plaintiff provided valuation and draft contract evidence satisfying the Court that the proposed sale price and terms were proper, the Court authorised the proposed sale under s 153(4) of the Conveyancing Act 1919.

Court Disposition

Application granted; orders made.

Orders

  • ['The proposed sale was authorised.' 'Orders were made in accordance with short minutes initialled and dated by the judge and placed with the papers.']