Shannessy v Beattie & Ors

Judgment 1THE COURT: This application for leave to appeal involves a very small amount of money, although there is a rather larger amount in dispute by reason of the cost orders made by the primary Judge. We set out below the background to the application. 2The applicant, Michael Shannessy, is one of four nephews, of the late Isabel Maud (Betty) Webb. The first respondent, Janelle Beattie, was Ms Webb's only niece. 3Ms Webb died on 26 December 2007, leaving the bulk of her estate to be distributed among Mr Michael Shannessy, Ms Beattie and Ms Webb's three other nephews. The executors of Ms Webb's estate were two of the nephews, Michael Shannessy (the applicant) and Garry Daly (the third respondent). 4The primary asset in the estate was a home unit, which was ultimately sold for approximately $450,000. At her death, Ms Webb also held an account with the Uniting Church (NSW) Trust Association Ltd, also referred to as Uniting Financial Services ("UFS"), which had a credit balance of $28,180. 5On 15 December 2007, Ms Webb signed a paper authorising UFS to terminate the account and pay the balance to Ms Beattie. On the findings made by the primary Judge (Gzell J), a letter containing the authorisation was posted on 16 December 2007, although it was not received by UFS until 24 December 2007. 6On 27 December 2007, UFS, without notice of Ms Webb's death the previous day, drew a cheque in favour of Ms Beattie and posted the cheque to Ms Webb at her (Ms Webb's) address. On about 31 December 2007, Ms Beattie went to Ms Webb's letterbox, removed the envelope and collected the cheque, which she subsequently negotiated. 7The Application Book did not include all materials before the primary Judge. However, it appears that in 2008 Ms Beattie and the fourth of Ms Webb's nephews, Peter Shannessy, commenced proceedings in the Supreme Court seeking orders for the removal of the executors by reason of their alleged failure to administer the estate. The plaintiffs sought orders appointing them as executors in place of Michael Shannessy and Garry Daly. 8At some stage, a dispute arose as to the sum of $28,180 that Ms Beattie had obtained by negotiating the UFS cheque. This dispute was crystallised in the proceedings by the filing of a cross-claim by the executors against Ms Beattie. The executors sought: