Jocelyn Richardson died in April 2016 survived by her three sons, Mark, Gregory and Wayne. Under Jocelyn’s  Will dated 12 December 2011 the residue of her estate was left in equal shares to her three sons. The primary asset of the estate is the family home at  Epping valued at  $1.3 million. Wayne was living in the home and following Jocelyn’s death continued to do so without paying rent.

In May 2019, Gregory and Mark sought a Court order to remove Wayne as an executor and appoint an independent administrator who obtained a writ for possession; executed by the Sheriff in July 2020. Gregory and Mark sought to claim Mesne Profits and damages for Wayne’s occupation of the home from the deceased’s death in Richardson v Richardson [2021] NSWSC 353.

Mesne profit

Where a landlord has obtained an order from a court to evict a tenant the mesne profit represents the value the ejected tenant received from the property between the time the court ordered the eviction and the time when the tenant actually left the property.

The Court held that a claim for mesne profits is a particular form of the action for trespass based upon an injury to the plaintiff’s possession it cannot succeed unless a plaintiff proves that they entered into actual possession or occupation of the premises before bringing such a claim. Gregory and Mark brought the claim for possession and the claim for mesne profits in the same proceeding therefore as they did not enter into actual possession of the Epping Property their claim for mesne profits fails because they hadn’t obtained actual possession before bringing the claim based on trespass.

However the loss of rent for the Epping Property over the period from Jocelyn’s death to the date Wayne was removed as executor represents the loss sustained by the estate as a result of the breach by Wayne of his duties as an executor. Similarly Wayne is liable for water rates and electricity for the period from the date of the deceased’s death to the date of appointment of the administrator. The Court agreed that had it not been for Wayne’s breach of his duties as executor the estate wouldn’t have had to pay the Administrators costs ordering they be paid out of Wayne’s share of the estate.

The Court accepted that although Wayne was in a vulnerable economic position due to physical and mental ill-health, he had been repeatedly put on notice of his responsibilities as an executor; chose not to accept assistance or to co-operate in the orderly administration of the estate. Additionally, he was on notice of the claim for rent or an occupation fee if he remained in occupation of and did not comply with requests to vacate the Epping Property making it necessary for the estate to incur the costs of obtaining vacant possession. The Court held that Wayne’s wilful disregard of his obligations amounted to conduct that warranted an indemnity costs order.

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