In the case of Richardson v Richardson  NSWSC 353, the court considered issues arising from the administration of the estate of the late Jocelyn Richardson who died in 2016. Mrs. Richardson was survived by her three sons, Gregory, Mark and Wayne, and she left a Will from in 2011.
All three sons were appointed as executors of her estate, to which the residue of such was to be equally shared amongst her sons. The primary asset of her estate was the deceased’s home which was worth $1.3 million. At the time of the deceased’s death, Wayne lived at her property and continued to do so after her death without paying rent.
In May 2019, Gregory and Mark brought proceedings and successfully sought an order to remove Wayne as an executor and to appoint an independent administrator. The Sheriff executed the obtainment of a writ for possession by the administrator in July 2020. This enabled the determination of Gregory and Mark’s claim for mesne profits and damages due to Wayne’s occupation of the property from the deceased’s death.
The claim for mesne profits
Mesne profits is one type of damages available to an owner of land. Developed in medieval courts, it is an ancient yet relatively rarely used measure of damages for trespass to property. It is a form of monetary remedy given for the use of the plaintiff’s land by the defendant during the period of the trespass.
A plaintiff is entitled to seek this measure where the plaintiff, having a right to exclusive possession of the land, had suffered no loss, or less loss than is represented by a “rent” or “hiring charge” for the land on which the trespass took place.
The Court’s finding
The entitlement to a claim of mesne profits was discussed and affirmed by Ward CJ in the judgement of Richardson v Richardson, where Her Honour referred to High Court authority to confirm that to successfully claim for mesne profits, the plaintiff must prove that they had entered into actual possession or occupation of the subject property prior to the claim (at ).
The Court further stated that an action for mesne profits is a form of action for trespass (at ). Based on the facts, the Court did not find that Mark and Gregory had obtained actual possession of the property prior their claim, and therefore, failed their claim for mesne profits.
However, as Wayne assumed a role of an executor of the deceased’s estate – the Court did find that Wayne breached his duties as an executor.
Lessons for litigants in Will disputes
Any person seeking to claim mesne profits must ensure they do so after they have possession of the relevant property. If that means bringing an action for possession first, and a second action for mesne profits later, parties must bear the additional cost (and time of doing so).
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