Johnston v Maclarn [2002] NSWSC 97

Johnston v Maclarn [2002] NSWSC 97

The claim that the Mirvac shares and Mercury units were not adeemed was sufficiently arguable because exceptions to ademption may apply where the property was disposed of without the testator's knowledge or by unauthorised or wrongful conduct. The remaining proposed claims concerning fraud, unconscionability, fiduciary duty, and the Contracts Review Act 1980 were not sufficiently pleaded or viable: the alleged fiduciary duty did not extend to the settlement of the debt claim, the pleaded facts did not establish special disadvantage, and the consent orders were not a contract because there was no bargain or consideration.

Jurisdiction
Australia
Judgment Date
27 February 2002
Procedural Posture
Equity Proceeding Concerning Succession, Ademption of Specific Legacies, and Challenge to District Court Settlement / Application Concerning Proposed Further Amended Statement of Claim and Whether Claims Should Be Allowed to Proceed
Outcome
Pleading on ademption to stand; other parts of statement of claim struck out, with the motion stood over for mention.
Legal Topics
['wills' 'specific Legacy' 'ademption' 'equitable Fraud' 'fiduciary Duty' 'unconscionable Conduct' 'contracts Review Act 1980' 'strike Out' 'summary Judgment']
['succession' 'equity' 'civil Procedure' 'contracts'] ['wills' 'specific Legacy' 'ademption' 'equitable Fraud' 'fiduciary Duty' 'unconscionable Conduct' 'contracts Review Act 1980' 'strike Out' 'summary Judgment']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Succession, Ademption of Specific Legacies, and Challenge to District Court Settlement / Application Concerning Proposed Further Amended Statement of Claim and Whether Claims Should Be Allowed to Proceed

Legal Issues

  1. 1 ["Whether the specific bequest of Mirvac shares and Mercury Asset Management Trust units was adeemed when the attorney sold them before the testator's death." 'Whether alleged unauthorised conduct, want of knowledge or consent, or a trick or device to defeat the legacy could prevent ademption or support equitable compensation.' 'Whether the plaintiff should be permitted to plead that the District Court settlement or judgment was obtained by equitable fraud, unconscionable conduct, or breach of fiduciary duty.' 'Whether the consent orders or settlement constituted a contract for the purposes of the Contracts Review Act 1980.']

Ratio Decidendi

The claim that the Mirvac shares and Mercury units were not adeemed was sufficiently arguable because exceptions to ademption may apply where the property was disposed of without the testator's knowledge or by unauthorised or wrongful conduct. The remaining proposed claims concerning fraud, unconscionability, fiduciary duty, and the Contracts Review Act 1980 were not sufficiently pleaded or viable: the alleged fiduciary duty did not extend to the settlement of the debt claim, the pleaded facts did not establish special disadvantage, and the consent orders were not a contract because there was no bargain or consideration.

Court Disposition

Pleading on ademption to stand; other parts of statement of claim struck out, with the motion stood over for mention.

Orders

  • ['The proper order indicated was to strike out all except the claim that the gift of Mirvac shares and Mercury units was not adeemed.' 'The motion was stood over for mention before Young CJ in Eq on Wednesday 13 March 2002 at 9:50 am.']