References: [2005] EWHC 406 (Ch), Times 28-Mar-2005, [2005] 2 All ER 700, [2005] 1 WLR 1890
Links: Bailii
Coram: Lawrence Collins J
Ratio: The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal representative began to run only after one year, the executor’s year, after the grant. No right of action arose until the executor became under a duty to distribute.
‘As regards the application for removal under Administration of Justice Act 1985, section 50, it is a matter for the discretion of the court, and that it is reasonable for the court to take a pragmatic approach, to consider the views of the beneficiaries and the interests of the estate as a whole.’
The family members disputed whether there had been a compromise of a dispute over the assets in their father’s estate.
Statutes: Real Property Limitation Act 1860 13, Limitation Act 1980 21(3), Administration of Justice Act 1985 50
This case cites:
- Cited – In re Diplock’s estate CA ([1948] Ch 465)
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . . - Cited – Sevcon Ltd v Lucas CAV Ltd HL ([1986] 1 WLR 462)
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . . - Distingusihed – Hornsey Local Board v Monarch Investment Building Society CA ([1889] 24 QBD 1)
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . . - Applied – In Re Johnson, Sly v Blake ((1855) 29 ChD)
The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: . . - Cited – Letterstedt v Broers PC (Bailii, [1884] UKPC 1, (1884) 9 App Cas 371, Bailii, [1884] UKPC 18)
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . . - Cited – Ministry of Health v Simpson; In re Diplock dec HL ([1951] AC 251, (1950) 2 All ER 1137)
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . . - Cited – Re Pauling’s Settlement Trusts (No.1) CA (Bailii, [1963] EWCA Civ 5, [1964] Ch 303, [1963] 3 All ER 1, [1963] 3 WLR 742)
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . . - Cited – Nelson v Rye and Another ChD (Times 05-Dec-95, [1996] 1 WLR 1378)
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . . - Cited – Evans v Westcombe; re Evans ChD (Gazette 10-Mar-99, Gazette 17-Mar-99, Times 10-Mar-99, Gazette 10-Mar-99, [1999] 2 All ER 777)
Where available, missing beneficiary insurance was the preferred way of dealing with the problem, rather than applications to the court for Benjamin or other similar orders. Insurance should be cheaper and more certain for the personal . . - Cited – Anne Hyde Earnshaw; Marion Robinson and Lucy Hyde Fielden v Josephine Hyde Hartley CA (Gazette 21-Apr-99, Times 29-Apr-99, Gazette 12-May-99, Bailii, [1999] EWCA Civ 1141, [2000] Ch 155)
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . . - Cited – Gwembe Valley Development Co Ltd (In Receivership) v Koshy and Others ChD (Times 08-Feb-00, Gazette 16-Mar-00)
A company could give several people the power to appoint a receiver in respect of different elements of its assets. If this was done there was no fundamental reason why such appointments should not be put in effect. The appointment of one receiver . . - Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA (Bailii, [2003] EWCA Civ 1048, Times 09-Sep-03, [2004] 1 BCLC 131)
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
(This list may be incomplete)
This case is cited by:
- Cited – Kevin Leonard Doodes v Peter John Gotham, Cheryl Barbara Perry ChD (Bailii, [2005] EWHC 2576 (Ch), Times 25-Nov-05)
The trustee in bankruptcy had taken a charge on the property in 1992 to support the bankruptcy in 1988. He sought to enforce it in 2005. The chargor appealed an order which denied he was protected by limitation.
Held: The appeal succeeded. . . - Cited – Gotham v Doodes CA (Bailii, [2006] EWCA Civ 1080, Times 14-Aug-06, [2007] 1 WLR 86)
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
(This list may be incomplete)
Jurisdiction: England and Wales
Last Update: 12-Mar-18
Ref: 223691
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