Secure Funding Pty Limited v George [2014] NSWSC 1420

Secure Funding Pty Limited v George [2014] NSWSC 1420

The cross-claimant is entitled to equitable compensation as the first and second cross-defendants breached their duties as trustee and executrix by mortgaging the property for personal benefit, depriving the cross-claimant of his right of residence; the compensation is assessed at $674,708.82. Extension of time for the family provision claim is granted as deprivation of the right of residence only recently arose. The third cross-defendant is appointed representative of the estate due to the executrix's breach of trust.

Jurisdiction
Australia
Judgment Date
19 September 2014
Procedural Posture
Interlocutory Applications / Judgment
Outcome
Judgment for cross-claimant against first and second cross-defendants. Extension of time for family provision application. Appointment of third cross-defendant as estate representative. Orders for substituted service and costs.
Legal Topics
['wills, Probate and Administration' 'breach of Trust' 'equitable Compensation' 'family Provision' 'appointment of Estate Representative']
['succession' 'equity' 'civil Procedure'] ['wills, Probate and Administration' 'breach of Trust' 'equitable Compensation' 'family Provision' 'appointment of Estate Representative']

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Procedural Posture

Interlocutory Applications / Judgment

Legal Issues

  1. 1 ['Whether cross-claimant is entitled to equitable compensation for breach of trust' 'Whether extension of time for family provision application should be granted' 'Who should be appointed as representative of the estate']

Ratio Decidendi

The cross-claimant is entitled to equitable compensation as the first and second cross-defendants breached their duties as trustee and executrix by mortgaging the property for personal benefit, depriving the cross-claimant of his right of residence; the compensation is assessed at $674,708.82. Extension of time for the family provision claim is granted as deprivation of the right of residence only recently arose. The third cross-defendant is appointed representative of the estate due to the executrix's breach of trust.

Court Disposition

Judgment for cross-claimant against first and second cross-defendants. Extension of time for family provision application. Appointment of third cross-defendant as estate representative. Orders for substituted service and costs.

Orders

  • ['Judgment against first and second cross-defendants in the amount of $674,708.82' 'Appointment of Christine Brizzolara as representative of the estate under UCPR r 7.10' 'Extension of time for making application under Family Provision Act 1982 (NSW)' 'Substituted service of Third Amended First Cross-Claim on fourth...