Angius v Salier

Facts - The Proposed Orders of the Court

1. Immediately following the publication of the Primary Judgment, my Associate wrote to all parties (and included Robert and Karin in that correspondence) suggesting this form of orders (the Proposed Orders): "1. The grant of letters of administration of the Estate of the Late Gerhard Anthony Haberl (the Estate) made to Andrea Haberl on 24 March 2021 is revoked. 2. Andrea Haberl must deliver up the original grant to the Registrar in Probate no later than [7 days from date of orders]. 3. Letters of administration of the Estate be granted to NSW Trustee and Guardian. 4. Andrea Haberl must pay the proceeds of the Estate to NSW Trustee and Guardian no later than [7 days from date of orders]. 5. Andrea Haberl must file and serve on NSW Trustee and Guardian sworn accounts for her administration of the Estate no later than [28 days from date of orders]. 6. In relation to Andrea Haberl in her capacity as trustee of the Isabella Sophia Haberl Trust Fund (the Fund) and subject to any further order of the Court, Andrea Haberl must: (1) Provide sworn annual accounts detailing all items of expenditure and income in her administration of the Fund to NSW Trustee and Guardian no later than 30 September each year for year ending 30 June in that year; (2) Not spend more than $10,000 out of the Fund for any single item without the consent of the NSW Trustee and Guardian; and (3) Not retire as trustee of the Fund or acquiesce in the appointment of any other person as a trustee of the Fund without the consent of the NSW Trustee and Guardian. 7. In these orders a reference to the consent of the NSW Trustee and Guardian includes consent upon such terms as NSW Trustee and Guardian in its absolute discretion considers reasonable. 8. Direct that Andrea Haberl is not entitled to indemnity from the Estate for any legal or other costs incurred by her of or incidental to these proceedings on and from 28 February 2022 up to and including [date of these orders]. 9. Note that the Court otherwise make no order as to the costs of any party of or incidental to these proceedings on and from 28 February 2022 up to and including [date of these orders]. 10 Refer these proceedings to the Registrar in Probate to complete the grant in Order 3. 11. Grants liberty to apply to Andrea Haberl and NSW Trustee and Guardian on 7 days' written notice in the first instance to the Associate to Kunc J in relation to the working out of these orders."
2. A direction was also made in chambers allowing "any party that wishes to make submissions in relation to the form of orders circulated to the parties … is to file and serve any submissions on or before 6 June 2022".
3. On 6 June 2022, NSW TAG sought (and was granted) an extension of time to provide a submission until 10 June 2022. In the events which happened, further written submissions were made on behalf of NSW TAG and Andrea, but not on behalf of Isabella.
4. On 7 June 2022, following correspondence from Robert and Karin detailed at [15] to [69] below, the Court suggested two possible amendments to the proposed orders (the Amended Proposed Orders): "Amend Order 6(1) to read: (1) Provide sworn annual accounts detailing all items of expenditure and administration in the Fund to the NSW Trustee and Guardian, Robert Haberl and Karin Haberl no later than 30 September each year for the year ending 30 June in that year. Amend proposed Order 11 so that the grant of liberty extends to Robert Haberl and Karin Haberl."

Submissions on the Proposed Orders

1. On 9 June 2022, written submissions were provided on behalf of NSW TAG. Those submissions were "limited to procedural, jurisdictional and other matters" because NSW TAG declined to be heard as to the substance of the Proposed Orders. The submissions may be summarised as: 1. NSW TAG consented to Proposed Orders 1-4 being made. 2. NSW TAG was prepared to undertake a supervisory role of Andrea's management of the Fund under Proposed Orders 5, 6 and 7. However, NSW TAG could only act within its statutory remit as provided for by ss 10 and 11 of the NSW Trustee and Guardian Act 2009 (NSW) (the Act). Mr Morrison, on behalf of NSW TAG, directed the Court's attention to the matter of Angius v Salier [2019] NSWSC 1854 in which Ward CJ in Eq (as her Honour then was) revoked an appointment of NSW TAG as the plaintiff's tutor for want of statutory power (at [9]). 3. NSW TAG could be empowered to act on Isabella's behalf with respect to the Fund in several ways. However, the most appropriate was for NSW TAG to be appointed as receiver of Isabella's right to the due administration of the Fund pursuant to s 11(1)(f) of the Act because that option most closely resembled what the Court had already proposed under Proposed Order 6. On that basis, NSW TAG proposed a further order: "Order that the NSWTG be appointed as receiver of the right of Isabella Sophia Haberl during her minority to compel the due administration of the Isabella Sophia Haberl Trust Fund." 1. Section 11(1)(f) allows a receiver to be appointed with respect to "any other property". Intangible property should be construed to fall within that provision. 2. The Court's power to appoint NSW TAG as receiver arose pursuant to the Court's supervisory jurisdiction over trusts and trustees. 3. With respect to the Amended Proposed Order 6(1) at [11] above, NSW TAG was limited in the information they could provide to Robert and Karin Haberl. They could receive and, if appropriate, act upon information provided by Robert and Karin. 4. NSW TAG did not wish to express any view on the remaining Proposed Orders.
2. Andrea was invited to respond to NSW TAG's submissions, which she did on 14 June 2022. Andrea's submissions may be summarised as: 1. Andrea agreed with NSW TAG's submission to be appointed as receiver pursuant to s 11(1)(f) of the Act (at [12(3)]). 2. The Court could appoint NSW TAG a receiver pursuant to s 67 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). NSW TAG's further proposed order at [12(3)] above should be amended to reflect the source of the Court's power. 3. Andrea opposed the Amended Proposed Orders because: 1. The Amended Proposed Orders would create a "multiplicity" of parties which would "invariably result in further unnecessary costs" to the Estate and the Fund. 2. There was no legal basis for Robert and Karin to be granted the entitlements in the Proposed Amended Orders. 3. There was a "strong likelihood" based on past conduct that Robert and Karin would seek to "investigate, challenge and question" the administration of the Fund to such an extent that it would create a detriment to Isabella. This was heightened by the animosity held by Robert and Karin towards Andrea. 4. Isabella's interests were the "paramount concern" of the relisted Probate Proceedings. NSW TAG was in the best position to provide that protection. Further involvement by Robert and Karin would only create additional, unnecessary work for NSW TAG. 5. Amended Proposed Order 11 was redundant as Robert and Karin were not parties to the matter and had not been given leave to appear. It was also likely to cause confusion which would result in further wastage to the Estate. In this regard, Mr Simpson pointed to the confusion that Amended Proposed Order 11 had already caused which is referred to at [65] below.
3. Further submissions were received from NSW TAG on 14 June 2022 in relation to its capacity to act as receiver in relation to intangible property (see [12(4)] above). NSW TAG submitted: 1. The Court has in the past contemplated the appointment of receivers to manage intangible property. Mr Morrison specifically directed the Court's attention to Re W and L (Parameters of Protected Estate Management Orders) (2014) 94 NSWLR 300; [2014] NSWSC 1106 at [50] per Lindsay J set out at [76]-[77] below (Re W and L). 2. Historically, receivers had wide powers although there was a need to define those powers carefully. According to HS Theobald, "[i]t was the practice at one time to confer upon the receiver all the powers of a committee of the estate" (at 402): Theobald H S, The Law Relating to Lunacy (Stevens and Sons Ltd, 1924). Furthermore, such committees were the "proper person to represent the lunatic in all proceedings in England" (at 49). This was also consistent with the observation of Lord Alverstone MR in Davies v Thomas [1900] 2 Ch 462 that an appointment as receiver under the Lunacy Act 1890 (UK) "authorises the person appointed by it to do in the name and on behalf of the lunatic that which he himself could have done if he had been sane" (at 469).

Facts - Robert and Karin Haberl's involvement

1. At 11:27am on 28 February 2022, Robert Haberl emailed a letter addressed to my staff. The letter detailed Robert's concerns about what he considered "highly questionable" conduct by Andrea Haberl, Anthony Haberl and their respective solicitors in relation to the Estate. Relevantly, it also stated: "I understand that His Honour has directed Andrea to present herself for a Directions Hearing on 21 March 2022 for her to show cause why she should remain Administrator, and I ask that the above is taken into account when Andrea's suitability to remain as Administrator is assessed, and that consideration be given to Karin being granted Letters of Administration of the Estate."
2. A response was provided to Robert's email at 11:54am on the same day acknowledging receipt and stating the letter had been brought to my attention.
3. At 12:24pm on 1 March 2022, Karin Haberl emailed a document titled "Statement Karin Haberl" that included: "In light of the stunning developments revealed by Mr Simpson on Fri 25th Feb, 2022, I would like to ask the Court to consider me in an advocate capacity for Isabella so that I am allowed contact with the Public Trustee of the Estate. My concern is that if I am not named in any capacity, when the Public Trustee is appointed there will be no reference to me and my family in any documents."
4. The letter also detailed Karin's concerns that Andrea and her legal team would "manipulate" NSW TAG if it was appointed as administrator by "withholding information about my family's mere existence let alone our desire to be involved in Isabella's life".
5. A response was provided to Karin's email at 12:34pm on the same day acknowledging receipt of the email and attachments. The email also noted that, as I was in Court dealing with a different matter, the letter would be brought to my attention at a future time.
6. Later that day, at 5:01pm, this response was provided to Karin's letter by my staff: "His Honour has noted your email and attached letter. … [H]e can only suggest that you and your brother seek legal advice about what role, if any, you can play in relation to these further issues. I shall keep you informed of the dates the matter will be before the Court should you wish to observe. If either you or your brother wish to participate, you will need to demonstrate a proper basis to do so."
7. On 14 March 2022, an email was sent to Andrea's legal representatives, Robert and Karin which stated: "Further to the email below Mr Tony Campbell, as Trustee, has a right of appearance at Wednesday's directions hearing. At this stage, Robert and Karin Haberl can observe the proceedings, his Honour will hear them if they wish to make submissions but this may be easier if they have obtained legal advice."
8. At 4:29pm on 15 March 2022, Robert sent an email with a document titled "Submission - Directions Hearing" attached. The email included: "Karin and I also welcome the opportunity to observe the proceedings of this Wednesday's Directions Hearing, and the opportunity for any submission of ours to be heard. As may have been evident during the Hearing on 24 February 2022, I can become quite emotional about [what] has transpired in this matter to date. … I am too upset and angry to talk the Hearing and would contribute little to the discussion. Also, mindful of the limited time available in such a Hearing, and the need for Andrea, and now her brother, Tony Campbell to fully explain their actions to his Honour, and to us as next of kin to Gary, I have attached a brief written submission for his Honour's consideration before the Directions Hearing tomorrow morning, and any further Orders that may be made regarding Gary's estate. With respect to the representative from NSWTAG also being present, I would appreciate if my sister, Karin could have the opportunity to address the Court in relation to the future administration of Gary's estate for the benefit of Isabella."
9. Robert's submission reiterated many of the facts known to the Court, reaffirmed that he and Karin were "aggrieved" by what had occurred and requested that Andrea and her legal representatives "be held accountable".
10. At 4:40pm on the same day, a response was sent to Robert acknowledging receipt of his correspondence. The email also stated: "His Honour will hear Karin at tomorrow's hearing".
11. On 16 March 2022, the parties attended a directions hearing via videolink. Andrea and her legal representatives were present, as were Mr Anthony Campbell as the purported trustee of the Estate and Mr Luke Williams on behalf of NSW TAG. Robert and Karin Haberl were also present.
12. After Mr Simpson and Mr Williams had concluded their submissions, Robert and Karin were invited to share their thoughts and views on the matter. The transcript names Robert as the first defendant and Karin as the second defendant. That is an error because they were not parties, but the transcript reflected their status in the proceedings brought against them by Andrea (see [5] above). For the sake of clarity, their first names have been used when quoting the transcript.
13. Robert was invited to address the Court first (Tcpt, 16 March 2022, pp 12-13(44-50; 1-28)): "HIS HONOUR: Thank you. I'll hear from the Haberls next. Mr Robert Haberl, do you wish to say anything? Can't hear you, sir. Mr Haberl, I can't hear you. Mr Haberl, we can't hear you. ROBERT: No, we are - HIS HONOUR: Now I can hear you, sir. ROBERT: Sorry. Yes, I put a submission in late yesterday, I had to get it off my chest and put it in writing there. Sorry, about putting it on you there, but knowing that you are mostly on top of it anyway. I'm just astounded that Mr Simpson is still involved, I think for Andrea in this case, even more I thought he would cut his losses and move on, but he is still seeing himself involved. I know your Honour is cautious in this but, based on my research and talking to other lawyers, this is a clear case of fraud. It is not in - it is flawed and it is a breach of trust, I have not even a clearer example of fraudulent activity, stealing Isabella's money by Andrea and her brother Tony. I put it, you know, I am allowed to put it a bit more straight forward, but that is what it is. I have talked to other legal professionals and they cannot believe what has happened, and my submission is that Sarah Young and Chris White do not continue to practice in the future after I have finished with them. ANDREA: Oh my God-- HIS HONOUR: That is a matter for you, sir, I'm not dealing with anything like that, and I'm certainly not suggesting any impropriety on that basis, I have no basis to do so, Mr Haberl. If you wish to take some action, that is entirely a matter for you. Is there anything else you wish to say? ROBERT: It just should not be allowed. We are mourning our brother who has died and this should not be allowed to happen to families like this."
14. After Robert had concluded, Karin was invited to address the Court (Tcpt, 16 March 2022, pp 13-15): "HIS HONOUR: Karin Haberl, what do you wish to say? KARIN: Can you hear me? HIS HONOUR: Yes, I can. KARIN: Okay. Well, I have been just, you know, hours and hours, there is so much to this case I don't know where to start, but it looks like we are making a decision whether, obviously, Andrea has stolen $400,000, that will be returned to Isabella; so now it's either Mr Williams from the Public Trustee or myself to look after Isabella's estate. I just want to read something to do with who administers Isabella's estate. HIS HONOUR: Yes. … KARIN: As I thought I would become administrator in the beginning I already have a business plan for Isabella's estate.
15. Karin described a plan in which the funds of the Estate would be used to purchase a property around Newcastle where many of Isabella's paternal relatives reside. Karin proposed that she could manage the property until Isabella attained her majority.
16. When Karin had concluded her plan for the Estate, the following exchange occurred: "KARIN: So I would ask ‑ I believe if I have to go through the normal processes of becoming administrator I won't succeed because already Andrea put a caveat against my first application so already the fees were ‑ I understand that I probably I am not the normal person to be administrator, I totally understand that. HIS HONOUR: Ms Haberl, have you sought legal advice about this situation? KARIN: No. I did back in the beginning, two years ago when my solicitor from Newport told me that, because of Andrea's unfitness and her conflict of interest I could apply, but, then, apparently that was wrong because then, you know, the caveat came in and a barrister got involved, and he said, no, you can't apply; but I think I'm the only one in this room besides Robert that will really look after that money. It is Gary's money. They were divorced. That is about all I have to say. HIS HONOUR: Thank you, Ms Haberl."
17. At 2:30pm on 24 March 2022, Karin sent an email to my Associate with a "short statement I have prepared for the Court's consideration before tomorrow's hearing". The written statement included: "Andrea should not be given any Administrator rights over the Estate nor should her brother Tony or her parents. … The Estate should be awarded to the Public Trustee who will be equipped to defend Isabella against her mother's litigation. Although there are costs, Isabella will at least be guaranteed an Estate when she is 18."
18. At 2:52pm on the same day, a response was emailed to Karin acknowledging receipt.
19. At 4:15pm on 24 March 2022, Robert sent an email with an attachment titled "Statement - Directions Hearing". That statement was largely a retelling of facts already known to the Court which Robert had prepared "more for the benefit of Mr Bambagiotti, whose recent appointment as amicus curiae in Isabella's interest we have welcomed". The statement reiterated his belief that Andrea's actions were "immoral, reprehensible and unlawful and she needs to be held accountable for her actions".
20. At 5:04pm a further email was received from Robert which stated: "In light of the further material provided by Andrea Haberl, and all the issues that now need to be considered in the interests of my niece, Isabella, with due respect, I feel that the allotted time of up to 1.5 hours is not sufficient time to achieve a satisfactory outcome".
21. A response was provided at 5:08pm on the same day acknowledging receipt of Robert's correspondence.
22. Robert and Karin were again present at the hearing on 25 March 2022. At that hearing, I noted that the Court had received what I took to be submissions from Robert and Karin (Tcpt, 25 March 2022, p 1-2(50;1)). Robert and Karin were also to be given an opportunity to be heard after the parties "[t]o the extent it may be necessary" (Tcpt, 25 March 2022, p 2(18)).
23. At that hearing, Mr Simpson raised objection on behalf of Andrea to the continued participation of Robert and Karin. Mr Simpson submitted that their involvement was unnecessary and inappropriate for three reasons: 1. Mr Bambagiotti had been appointed as amicus curiae to represent Isabella's interests; 2. The submissions provided by Karin and Robert did not disclose anything unknown or which could have assisted the Court; and 3. Robert and Karin's participation was tainted by their animus towards Andrea. In particular, the written material they provided included attempts to "sledge and hector" Andrea.
24. Robert and Karin were not invited to present their views after the parties had concluded. That decision was explained to them in these terms (Tcpt, 25 March 2022, p 10(1-12)): "HIS HONOUR: … I don't propose in the light of what's been said by Mr Simpson to invite Karin or Robert to say anything further. I have noted what is in their submissions. I accept, however, as family members and the uncle and aunt of Isabella, they have an interest at a family level. I don't propose to hear from you any further. I don't think anything is going to happen today. I think it is appropriate that … Robert and Karin be kept informed but I think Robert and Karin, you need to understand you don't have any right to impose or to speak a solution or to speak on behalf of Isabella. I appreciate you have a natural desire as family members to try and represent her interests but Mr Bambagiotti has been appointed as amicus for the purpose of representing her interests."
25. Towards the conclusion of the hearing, this exchange occurred with Robert (Tcpt, 25 March 2022, p 12(13-31)): "ROBERT: I know you said I couldn't talk at all but would it be possible for the plaintiff to somehow account for how she is going to finance this new house? HIS HONOUR: Mr Robert Haberl, I think the short answer is that's going to be covered in the discussions that Mr Bambagiotti has had and how the plaintiff chooses to finance it is a matter for her subject to its not prejudicing the interests of Isabella. ROBERT: I appreciate that. I know I've been out of the game for a while, retired by the tax office. I cannot reconcile this. It's getting too out of hand and as you said it's a mess. It would be up to $800,000 for a new house. Andrea would have just $400,000 for her share. It would have taken the $400,000‑‑ HIS HONOUR: ‑‑ Mr Haberl, I'm going to stop you because Isabella's interests are going to be attended to by Mr Bambagiotti who in the best traditions of the Bar has taken on an appointment as amicus, volunteering his services to look after Isabella's interests in the matter."
26. At 4:44pm on 5 April 2022, Robert sent an email to my Associate detailing information regarding Andrea's conduct in relation to the Fund. The email detailed Robert's concerns in relation to Andrea's dealings with the Fund and requested orders be made requiring an account from Andrea. The email stated: "If it pleases the Court, I would require a response from Andrea and her lawyer to the above reasonable questions by close of business, this Thursday 7 April 2022".
27. At 5:17pm on the same day, a response was sent to Robert which stated: "As you and your sister are not a party to the probate proceedings (2020/157572) you do not have standing to make requests in relation to the matter. You are entitled to be informed of any hearing which you and your sister can attend as members of the public. It is a matter for you and your sister to obtain legal advice as to what rights, if any, you may have to participate in the probate proceedings."
28. At 12:20pm on 25 March 2022, Robert sent an email which stated: "Is the case number 2020/157572 correct - that has been used on previous correspondence? Does it take over from the Case Number of the previous proceedings, being 2021/00126392?"
29. No response was sent to Robert as my Associate was not in chambers on that day (being the Friday) and the following Monday both my Associate and Tipstaff tested positive for Covid-19.
30. At 1:03pm on 6 April 2022, Robert sent a follow-up email: "Could I just clarify with you that you are not confusing our matter with another matter. You refer to "probate" proceedings, when in fact, our matter does not involve a Will or an executor. And you continue to refer to the case number as being 2020/157572, which would appear to relate to a case in the year 2020, and as such, I cannot find any such current case listed in the Supreme Court Registry."
31. A response was provided by email at 3:05pm on the same day explaining that the Probate Proceedings had been reopened so that formal orders could be made in relation to Isabella's interest in the Estate. Those orders could only be made in the Probate Proceedings.
32. At 3:11pm on the same day, Robert sent an additional email that stated: "I am in the process of seeking legal advice as suggested by you".
33. A final directions hearing occurred in the matter on 29 April 2022. Robert and Karin observed but did not participate in that hearing.
34. On 16 May 2022, Karin forwarded a letter that she had provided to Mr Bambagiotti as amicus curiae. The letter contained information related to Gary and Andrea's relationship as well as Andrea's interactions with Robert and Karin. Karin requested Mr Bambagiotti to consider "recommending that my family are allowed to invest $60,000" on Isabella's behalf "so that we can be part of Isabella's life even if in a very small way".
35. At 2:04am on 26 May 2022, Robert emailed a "final brief submission" to my Associate. The submission once again expressed Robert's concerns related to what he perceived to be breaches of trust by Andrea and expressed his support for what Karin had written to Mr Bambagiotti. The submission also noted Robert's gratitude for the appointment of Mr Bamabagiotti as amicus curiae and the Court's indulgence in permitting the involvement of Robert and Karin.
36. At 9:09am on the same day, my Associate responded: "as you are not a party in the probate proceedings and have not been given leave to appear or make submissions his Honour will not pay any regard to your submissions".
37. On 30 May 2022, the Primary Judgment was electronically published and included: "[77] As interested parties, Robert and Karin Haberl were provided with an opportunity to present their views. I note that they did so without the benefit of having obtained legal advice. [78] There was, unsurprisingly, a considerable degree of animosity between the Haberl siblings and Andrea. They expressed anger at the course of events that had occurred and were adamant that Andrea should not be permitted to continue as administrator. This was particularly so in light of what they perceived to be potential breaches of trust by Andrea in paying legal fees from the Estate after 6 August 2021 and purchasing a new car out of the Isabella Sophia Haberl Trust. [79] Given they were not parties to the matter and did not have leave to appear, I have afforded no weight to their views."
38. The outcome of that decision was that Andrea's letters of administration were to be revoked and NSW TAG was to be appointed in her place.
39. The same day, an email was circulated to the parties which included Robert and Karin. That email listed the Proposed Orders, including an order that "[a]ny party that wishes to make submissions in relation to the form of orders circulated to the parties by email on 30 May 2022 is to file and serve any such submissions on or before 7 June 2022".
40. At 10:33am on 2 June 2022, Karin emailed to my Associate a document titled "Request for Standing" which said: "I would like to seek leave from the Court to be given standing in this case so that I can respond to the Court's proposed final orders. I am an interested party and my private interests are and will be affected by the decisions made in this matter. I have a special interest in this case and should be given standing. With great respect there are gaps in the proposed final judgment that will negatively impact Isabella's Estate. I have intimate knowledge of the value of Gary's Estate and should be given standing so that I can address the discrepancies between my knowledge and what Andrea is purporting to be the value of the Estate."
41. A response was emailed to Karin at 11:08am on the same day that stated: "As his Honour has delivered judgment in the matter, you should direct any information or enquiries related to the Estate to the NSW Trustee & Guardian once it has been appointed".
42. At 1:14pm Karin sent an email that quoted the Proposed Orders at [8] above and stated: "His Honour has not finalised his judgment … There can be no doubt in the Court's mind that I am an interested party and as such I should be given the leave to make a submission to the court regarding the proposed orders."
43. At 2:35pm a further response was provided to Karin by my staff that stated: "His Honour will not grant leave for you to be joined as a party to the proceedings. I note that you were advised on 1 March 2022 that you should seek legal advice regarding your participation in the proceedings and, subsequently, on 6 April 2022, your brother indicated that he was in the process of doing so … Judgment has now been delivered in the matter. If you have concerns about the Estate you will be able to address those concerns to the NSW Trustee and Guardian."
44. Later that day, Robert telephoned my chambers and spoke to my staff. During that telephone conversation, Robert expressed his belief that he and Karin were entitled to be joined as parties. He was advised to send an email detailing this and to obtain legal advice.
45. At 1:17am on 3 June 2022, Robert sent an email to my chambers. In the email, he stated that he had attempted to contact the NSW Trustee and Guardian but had been unable to speak to someone. He sought to "formally request urgent leave to make a brief submission". The email also stated (emphases in original): "[The Associate] advised me on 5 April 2022 that Karin and I do not have standing in this matter, and that as such, we can only watch as members of the public, that is, spectators and on 26 May 2022 in response to a considered submission (about a further breach of trust by the plaintiff and concern for Isabella's interests), she said that His Honour will not pay any regard to it! And yes, I did seek legal advice from a solicitor, as suggested by [the Associate], and as you refer to below, and she expressed the view if the Court says we have no standing, then we have to accept that we cannot become parties or participate and probably can't do anything more! With respect to 'standing', I have now found that [the Associate's] advice was incorrect as Karin and I certainly do have standing, as we are persons who have a 'special interest' in the matter, more than any member of the public, and as such, we could have applied for leave to participate in these proceedings. And that in this regard, "Courts have said the rules of standing need to be applied flexibly and have been prepared to apply the ''special interest" test liberally". I suggest for future self-represented litigants that your advice in this regard be corrected with words to the effect - "You are not a party to the current proceedings, however as you may have standing in this matter, you may apply for leave to be joined (or participate) in the proceedings. His Honour suggests you seek legal advice in this regard". This would then result in more informed legal advice being given, especially by the many solicitors not experienced in these matters, such as mine. Knowing that Karin and I are paternal family members, and how much we cared for Isabella's interests and wanting justice to be done, the Court would have certainly known we had standing and being self-represented, that we could have, or should have applied for leave to participate in these proceedings, but no assistance or guidance was provided to us in this regard whatsoever! In my opinion, it is not in the spirit of fairness and equity, and a denial of natural justice, for us not to be allowed to simply provide brief valid comments for His Honour to consider before he finalises his orders, which would make sure that everything is covered in the best interests of Isabella, who is our niece. We have come a long way after a very stressful 2 & 1/2 years for us, and to not have any opportunity to have a say in the settlement of this matter is upsetting and quite disturbing. Should my request be denied, and taking into account the description of 'standing' above, I would respectfully ask why Karin and I were considered to have no standing in this matter (contrary to the amicus' references to us in his Notes), especially after it appeared we were parties at the start of these proceedings, and why we were relegated from parties to mere spectators midway through these proceedings? And whether this was the view of His Honour?"
46. At 9:33am on the same day, a response was sent to Robert which stated: "His Honour has read your correspondence. Karin and you were parties to the proceedings in matter 2020/126392 which related to the Estate seeking money and items from you. However, the issue of Andrea's suitability to remain as administrator of the Estate could not be dealt with in those proceedings. In order to deal with that issue, his Honour reopened the probate proceedings in matter 2020/157572 to which yourself and Karin were never parties. As stated by [the Associate] in her email correspondence to Karin of 1 March 2022 (which you were copied into), you would need to demonstrate a proper basis to participate in the probate proceedings. As at 5 April 2022, this had not occurred. [The Associate's] statement that you were not parties to the matter was merely factual as yourself and Karin were never parties to the probate proceeding and had not applied to be joined as parties. Further, as you were not applicants for letters of administration of the Estate, his Honour took the view that neither yourself nor Karin had standing in the proceedings and on that basis would not grant leave for you to be joined as parties. His Honour also took the view that Isabella's interests were properly represented by Mr Bambagiotti as amicus curiae."
47. At 1:30am on 7 June 2022, Robert sent a further email in response which included (emphases in original): "I refer to your email below which advises that his Honour is still refusing to give Karin and me any opportunity to be heard regarding his proposed orders and despite Isabella's future being at stake. You advise that as we were not applicants for Letters of Administration of the Estate, his Honour took the view we had no standing in these proceedings and on that basis he would not grant leave to be joined as parties. With due respect, what you say is incorrect. His Honour should be aware from the first proceedings that Karin, as next-of-kin to Gary, had in fact applied for Letters of Administration following Gary's death based on legal advice that Andrea was not a fit and proper person at that early stage. After many months, Karin eventually withdrew her application following demands by Andrea's lawyer, leaving Andrea to apply for and eventually be granted Letters of Administration. Then during these proceedings, when Andrea's suitability to continue as administrator of Gary's Estate was being considered by his Honour, Karin made an oral presentation to his Honour applying to be administrator, outlining her considered plan to protect Isabella's financial interests. His Honour did not react or comment in any way, only to ask if she had sought legal advice about this to which Karin responded 'No'. His Honour did not indicate the relevance of this, and when the next Hearing was conducted, Karin's application was forgotten about."
48. The email then set out the basis upon which Robert believed that he and Karin were entitled to be granted standing which included: 1. Under the Succession Act 2006 (NSW) they were entitled to apply for letters of administration if they wished to do so. 2. They had a "special interest" above that of the general public and that they should be given standing now notwithstanding that they had not applied for it before. 3. Mr Bambagiotti had made reference in his submissions to Robert and Karin having an interest as Isabella's family members. Mr Bambagiotti had also suggested that it might be appropriate to grant them leave going forward and to make orders granting them some oversight of the Estate. 4. In Robert's view, Mr Bambagiotti had "failed" to protect Isabella's interest in relation to the Fund which would not have occurred "[h]ad my submission regarding this not been ignored".
49. Robert then went on to say: "I do not know what more is required to convince his Honour, and as such I remain disillusioned and aggrieved by the Court not allowing us to participate in these proceedings (contrary to what the amicus recommended), as well as the Court not considering our proposal to have some role in the oversight of the trust funds (contrary to the amicus' assurance). Yet, his Honour had no qualms in joining Anthony Campbell with the plaintiff to these proceedings by the mere fact he had no concern at all for Isabella's interests. You advise that his Honour considered that Isabella's interests were properly represented by Mr Bambagiotti as amicus curiae. However, the amicus has failed to protect Isabella's entitlement to the entire proceeds of Gary's life insurance policy when she turns 18 years old, with the control of such funds being unlawfully obtained by Andrea, but not recognised and remedied by the amicus and the Court. Had my submission regarding this not been ignored by the amicus and his Honour (because I was not a party), Isabella's interests would have been better protected. … If my request for leave to make a submission is still denied, then I would respectfully ask his Honour to detail fully why he has not granted this, and why, as it now appears obvious by your response below, he never had any intention in joining us in these proceedings and letting us participate in any fair and meaningful manner on behalf of Isabella to help protect her interests."
50. A response was emailed to Robert at 8:40am on the same day: "His Honour remains of the view that it is not appropriate for you and Karin to be joined as parties in the probate proceedings at this stage. However, his Honour is minded to amend his proposed orders, and invites the comments of parties to this effect …"
51. The email then laid out the Amended Proposed Orders as set out in paragraph [11] above.
52. Robert took the amendment to Order 11 to mean that he and Karin were able to make submissions and sought an extension of time to do so.
53. At 2:29pm on the same day, an email was sent to Robert and Karin which clarified that the amended orders would allow them to "apply to relist the probate proceedings at a future time … [i]t does not grant liberty for you to provide submissions".
54. At approximately 3:30pm on the same day, Robert telephoned my chambers and spoke to my staff. I understand that he expressed his dissatisfaction with what he viewed to be judicial misconduct because he and Karin were denied the ability to participate or be joined as parties. He was advised to seek advice from a lawyer who was experienced in estate matters to discuss his options.
55. At 12.33pm on 16 June 2022, as these reasons were being finalised, Robert sent a further email to my chambers, the beginning and end of which were: "Whilst acknowledging that Karin and I are not parties in these proceedings, with respect to Andrea Haberl's submission in response to the Court's proposed orders and the NSW TAG's submission, and as it makes reference to Karin and me, I beg the Court's indulgence for this last time, in allowing me to make the following brief comment for his Honour's information and possible consideration … To conclude, I wish to thank his Honour and the amicus curiae for their time and commitment in these proceedings to protect our niece, Isabella's interests, whilst at the same time, faced with the difficult task of trying to satisfy all parties and interested persons as best they can. I think Andrea can be satisfied that she has had a fair hearing, and that we can all now move forward for the sake of Isabella's well-being and upbringing over the next 12 years. To this end, I wish to apologise to [my Tipstaff] and his Honour for venting my frustrations about his Honour's proposed orders and our limited involvement in these proceedings."

The law relating to the appointment of the NSW TAG

1. The statutory remit of NSW TAG is expressed in ss 10 and 11 of the Act, including: "10 Functions generally (1) The NSW Trustee has such functions as are conferred or imposed on it by or under this or any other Act. (2) The NSW Trustee may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions … 11 General trustee and other functions (1) The NSW Trustee may be appointed to and act in any of the following capacities - (a) trustee, (b) executor or administrator, (c) collector of estates under an order to collect, (d) agent or attorney, (e) guardian or receiver of the estate of a minor, (f) receiver of any other property. (2) The NSW Trustee may be appointed to and act in the capacity of a financial manager of the estate of a managed person. (3) The NSW Trustee may prepare wills and carry out professional services in connection with wills, probate and administration …"
2. There was some difference between NSW TAG and Andrea as to the source of the Court's power to appoint NSW TAG as receiver under s 11(1)(f) (see [12(5)] and [13(2)] above).
3. Section 67 of the Supreme Court Act is: "67 Receiver The Court may, at any stage of proceedings, on terms, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do."
4. Alternatively, the Court's protective jurisdiction could be engaged. NSW TAG referred the Court to Re PDC [2021] NSWSC 1701 in which Lindsay J said: "39. … [T]he limits (or scope) of the Court's inherent, protective jurisdiction have not been, and cannot be, defined; the jurisdiction exists for the care of those who cannot look after themselves: Marion's Case (1992) 175 CLR 218 at 258-259. In transferring trust assets to a protected estate manager, the trustee would have the protection of a court order against any allegation of breach of trust, assuming the existence of a person with standing to make the allegation. Legal title to an estate under protective management resides in the protected person, not his or her manager: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [166]-[175]. There may be a debate, when the Court's orders are made, about the respective benefits of a "trust regime" and a "protective management regime", but the Court's order would determine that debate. 40. … [T]he Court's inherent jurisdiction (preserved by section 22 of the Supreme Court Act 1970 NSW) is reinforced by section 23 of the Act, a provision not under consideration in Chapman v Chapman. Section 23 provides that "[the] Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". It has been described as a source of the Court's protective jurisdiction additional to that conferred on the Court, upon its establishment, by reference to the office of the English Lord Chancellor: Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [73]-[78]; Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 at [22]-[26]; Fountain v Alexander (1982) 150 CLR 615 at 633."
5. The Court's inherent jurisdiction was not engaged in that case because s 86A(2)(a) of the NSW Trustee and Guardian Act 2009 (NSW) was available to achieve the same purpose.
6. In JMK v RDC [2013] NSWSC 1362, Lindsay J stated with respect to the Court's power to appoint a receiver: "[55] The court's jurisdiction to appoint a receiver and manager is both statutory and inherent. "Receivers" have long been appointed in exercise, or in aid of an exercise, of the court's protective jurisdiction: GNM v ER [1983] 1 NSWLR 144 at 148C-149D; HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), pp 54, 401-403 and 511-513. In Ex-parte Warren (1805) 10 Ves Jun 622 ; 32 ER 985 at 986 Lord Eldon regarded as immaterial whether a person appointed to manage the estate of a lunatic was called "Committee" or "Receiver". White J appointed the NSW Trustee receiver and manager of the protected estate in GDR v EKR while questions requiring consideration in those proceedings were worked through. [56] The court's inherent jurisdiction to appoint a receiver and manager is supplemented by the jurisdiction it has under s 67 of the Supreme Court Act 1970 NSW to appoint a receiver, by interlocutory order, in any case in which it appears to the court to be just or convenient so to do. The conferral of jurisdiction on the court by the NSW Trustee and Guardian Act can generally be taken to carry with it recognition of the court's general jurisdiction, practice and procedure."
7. The appointment of a receiver in relation to a cause of action was adverted to by Lindsay J in Re W and L (also referred to at [14(1)] above): "[48] Without a demonstrated need for the appointment of a protected estate manager to conduct the litigation, without information about the role proposed to be played by a protected estate manager in the conduct of the litigation, and without precise knowledge of fees proposed to be charged by a protected estate manager for the conduct of the litigation, the court should be slow to involve in contested proceedings for personal injury compensation an entity which has, or may have, a vested commercial interest (which may differ from that of the person in need of protection) in the outcome of those proceedings. [49] Decisions made in the conduct of personal injury compensation claims on behalf of a person in need of protection must be taken (for the benefit, and in the interests, of the individual) independently, and manifestly independently, of the commercial interests of a business entity that has been appointed, or aspires to be appointed, as manager of the individual's estate. [50] If there is a need for a professional estate manager in the conduct of personal injury compensation proceedings on behalf of a person in need of protection, the prudent course may be to appoint such an entity as a receiver (in exercise of jurisdiction identified in JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56]) pending determination of the proceedings, reserving questions about the identity of any protected estate manager until the size and nature of the estate, and the needs of the person measured against that estate, are better known. [51] The appointment of a protected estate manager is not a mere formality. Nor is the selection of a manager. Although due regard is had to the views of family and carers of a protected person, the protective jurisdiction is not a "consent jurisdiction" or anything of the like: M v M [2013] NSWSC 1495 at [50]."
8. In that case, no estate manager was appointed to conduct personal injury litigation because there was already a tutor who could do so (at [39]). Nor was there any special need to appoint an estate manager prior to the determination of those proceedings (at [46]). Crucially, his Honour held that any such order would need to be for the benefit, and in the interests of, the protected person (at [38]).

The law relating to unrepresented litigants

1. In Bauskis v Liew [2013] NSWCA 297, Gleeson JA (Beazley P and Barrett JA agreeing) considered the authorities about unrepresented litigants. His Honour summarised these into a series of propositions: "[67] First, the court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43, 341, 43, 347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. [68] Secondly, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial to both parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. [69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. [70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corp Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."
2. These propositions were also quoted by Gleeson JA (Macfarlan and Emmett JJA agreeing) in Pollock v Hicks [2015] NSWCA 122 at [91].
3. In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, Allsop P described the nature of managing proceedings involving unrepresented litigants: "[10] The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no small task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person may cause injustice. [11] The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ … [12] It is of course necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather the question is what a judge must do to provide a fair hearing and equal justice."
4. The Court's duty to unrepresented litigants was also set out by Beazley JA in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]. That consideration has often been cited in later judgments of the Court, including this passage: "[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 466 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality: A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6. [316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness."
5. There is a slight distinction in this case from the authorities to which I have just referred because Robert and Karin were never parties to these proceedings, although they had been parties to the case preceding it. The present issue arises from the fact that, as non-parties to the Probate Proceedings, Robert and Karin were permitted a degree of informal input in these relisted Probate Proceedings which, upon objection by a proper party to the matter (Andrea) and the appointment of an amicus curiae to represent the other proper party (Isabella), they were then denied. However, I do not consider that distinction diminishes the applicability to this case of the authorities concerning unrepresented litigants.

Consideration

1. There was much agreement between the parties in respect of the Proposed Orders. NSW TAG acceded to the Proposed Orders with one addition and raised no opposition to the Proposed Amended Orders other than to note the limitations of its ability to engage with Robert and Karin. Andrea acceded to the Proposed Orders, including the additional order suggested by NSW TAG, but opposed the Amended Proposed Orders.
2. Noting the issues in dispute, there are two matters that require the Court's consideration: first, the means by which the NSW TAG should be appointed to manage Isabella's Estate; and, second, the matter of Robert and Karin's involvement and the Amended Proposed Orders.

NSW TAG's appointment

1. The Court accepts the submission of NSW TAG that an appointment as receiver would best reflect the Court's intention to grant NSW TAG a measure of supervisory authority over Andrea's management of the Fund.
2. Notwithstanding that none of the authorities set out at [14] and [76]-[77] above expressly determine the question of the validity of appointment in respect of intangible property, the Court finds that it has power to do so in this case. This is for two reasons.
3. First, the words of s 11(1)(f) refer to "any other property" and make no distinction between tangible or intangible property.
4. Second, the Court is satisfied that such an appointment is both necessary and in the best interests of Isabella: Re W and L at [76]-[77] above. At present there is no effective oversight of Andrea's management of the Fund in circumstances where the Court has found she has not conducted herself properly in the administration of the Estate. Further, for the reasons set out at paragraph [99] below, the Court is not satisfied that the involvement of Robert and Karin in managing the Fund would be for Isabella's benefit. As an independent statutory body, NSW TAG is the appropriate entity to ensure that Isabella's interests are protected.
5. Applying the legal principles set out by Lindsay J reproduced at paragraph [73]-[75] above, the Court is satisfied that the power to make such an order arises out of a combination of the Court's inherent protective jurisdiction and s 67 of the Supreme Court Act together with s 11(1)(f) of the Act. Given the publication of these reasons, it is not necessary to amend the Proposed Orders to record the source of the Court's power. However, taking note of Mr Morrison's submission set out in paragraph [14(2)] above, I will expand the form of the order to make clear the extent of NSW TAG's powers as receiver of Isabella's right to compel the due administration of the Fund.

The decision not to join Robert and Karin as parties or hear them further

1. Robert and Karin were permitted to participate in as much of the Probate Proceedings as, in my view, they could properly do so without being parties. They were included in all email correspondence between the Court and the parties, provided with copies of documents where appropriate, informed of hearing dates and given videolink details so that they could attend if they wished to do so. For some of the duration of the proceedings, Robert and Karin were also able to provide their views both in writing and orally. Despite this, they were never formally joined as parties to the proceedings. Eventually, the Court limited their participation and would no longer take into account their views, although they were still included in all correspondence and informed of any hearings should they wish to attend.
2. In addition to being kept informed, Robert and Karin were urged on several occasions to obtain legal advice in respect of their ability to participate. Such advice appears to have been obtained although it is not clear when this occurred (see Robert's email at 1:17am of 3 June 2022 at [59] above). The Court cannot comment on the substance of that advice except insofar as it might be thought on the little information available that it was not given by a solicitor with experience in estate matters (see Robert's email of the same time and date).
3. The authorities above at [78] to [81] demonstrate that the Court has two primary and competing concerns when dealing with unrepresented litigants: first, to ensure that unrepresented litigants are given sufficient procedural information to navigate their legal problems as laypersons; and, second, to ensure the fair administration of justice between the parties.
4. The legal interests at stake in these proceedings were those of Andrea and Isabella as administrator and beneficiary of the Estate. Anthony Campbell also had a real legal interest as the purported trustee of the Estate and as a person in relation to whom orders were to be made. His joinder (which I will formally order as part of the orders that conclude these reasons) was consented to by the other parties. It was the Court's chief concern that justice be administered fairly between them. Concurrent to that was the need to provide information to Robert and Karin as unrepresented persons who had an interest (but not using that word in its technical legal sense) in what was happening concerning their neice. Even so, that information could not be in the form of judicial advice, including as to how (if at all) they might obtain standing to be formally joined and heard.
5. It is clear on the facts related above that Robert and Karin have considerable concerns for their niece, Isabella. They were naturally invested in the Probate Proceedings as her relatives. Mindful of this, the Court initially invited their participation, especially as there was at that time no independent third party to advocate for Isabella's interests. However, they did not have a legal interest which would have permitted them to exercise all the rights of the actual parties. For example, a personal interest in family matters has been held to be insufficient to confer a caveatable interest in a deceased estate: Re Brennan Estate; Brennan v McGuire [2010] NSWSC 1249 at [7] (Palmer J), a conclusion with which I respectfully agree. The interest Robert and Karin were required to demonstrate was an interest in the Estate, not merely an interest in Isabella's welfare. While those two matters may appear interrelated the latter does not equate to the former.
6. As explained to Robert by email at [60] above, the Court took the view that they should not be granted standing for two reasons: 1. They were not applicants for letters of administration at the time these events took place; and 2. Mr Bambagiotti had been appointed to represent Isabella's interests as amicus curiae.
7. The first of those matters caused more friction than the second (though it was not without controversy). It was clear that Karin was aware of the formal processes involved in applying for letters of administration, having previously applied before Andrea lodged a caveat against Karin's application. The Court accepts that at the hearing on 16 March 2022 she expressed an informal wish to be considered for the grant of letters of administration of the Estate. She also indicated that she would not be making any formal application. The Court inquired as to whether she had received legal advice on the matter which she had not.
8. In my respectful view, it would not have been appropriate to go further on that occasion by purporting to advise Karin about what she might do with respect to an application for letters of administration or the consequences of such an application. She was already aware of the proper procedure for applying for letters of administration and had been encouraged to obtain legal advice. In any event, at that time it did not affect the participation of either Robert or Karin in the Probate Proceedings because the Court intended that they should be able to express their views informally on Isabella's behalf until it was no longer necessary. That came to pass when Mr Bambagiotti was appointed as amicus curiae.
9. The second of the matters at paragraph [94] above rendered Robert and Karin's participation unnecessary insofar as they were seeking to protect Isabella's interests. The Court respects and accepts the genuineness of their concern for Isabella's welfare. While the Court appreciates the effort they expended, this was clearly done without the benefit of legal assistance. In the Court's view, Isabella's interests were properly to be served by the amicus curiae. Robert and Karin may not agree with that assessment. Mindful of that fact, the Court suggested the Amended Proposed Orders.
10. There is obviously much tension between Andrea and the Haberl siblings. Robert and Karin, by their own admission, have found it difficult at times to manage their anger and frustration towards her. The Court finds that there is a real possibility that if they are granted any degree of oversight of the Fund, Robert and Karin could bring undue complaints or otherwise seek to assert their views which would ultimately be to Isabella's detriment by causing further expense to be incurred by the Estate or the Fund. The Court is confident her interests will be properly protected by NSW TAG. This is not to suggest bad faith on the part of Robert and Karin, but rather to recognise a real risk that their strong adverse feelings towards Andrea will infect their judgment on these matters. While Robert's most recent email (see paragraph [69] above) is, with respect, to his credit, it also supports the conclusion which the Court has reached on this point. For these reasons, accepting the submissions made on behalf of Andrea, the Court will not make the Amended Proposed Orders.
11. Furthermore, the Court takes into account the timing of Robert and Karin's requests to be granted standing. The Court must always act with consideration of the overriding purpose and case management principles in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), which include: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties …"
12. Robert and Karin sought leave to be joined after judgment in the matter was handed down. The Court is satisfied that there is no proper legal basis upon which they have standing to permit their joinder. Nor is there any basis to find that a failure to join them at this late stage will result in a substantive injustice to Isabella's interests. Given these conclusions, the proper course is to make final orders to bring the matter to an end. To do otherwise would be contrary to the objects of case management to ensure cost effectiveness, efficiency and timeliness in the resolution of disputes.

Conclusion

1. The Court's orders are: 1. That Anthony Campbell named as the trustee of the Estate of the Late (Gerhard) Gary Anthony Haberl in the document entitled 'Deed of Retirement of Trustee and Appointment of New Trustee' dated 9 June 2021 and made between Andrea Haberl and Anthony Campbell (the Deed) be joined to these proceedings. 2. The Deed is hereby set aside and declared to be void ab initio. 3. Pursuant to Family Law Act 1975 (NSW) s 179(1A), the Orders of the Local Court at Maitland in matter: FL 123/210001 made on 23 September 2021 be set aside, so that the Local Court's orders of 9 May 2019 in that matter operate as if they were never altered or varied. 4. The grant of letters of administration of the Estate of the Late Gerhard Anthony Haberl (the Estate) made to Andrea Haberl on 24 March 2021 is revoked. 5. Andrea Haberl must deliver up the original grant to the Registrar in Probate no later than 24 June 2022. 6. Letters of administration of the Estate be granted to NSW Trustee and Guardian. 7. Andrea Haberl must pay the proceeds of the Estate to NSW Trustee and Guardian no later than 24 June 2022. 8. Andrea Haberl must file and serve on NSW Trustee and Guardian sworn accounts for her administration of the Estate no later than 29 July 2022. 9. NSW Trustee and Guardian be appointed as receiver of the right of Isabella Sophia Haberl during her minority to compel the due administration of the Isabella Sophia Haberl Trust Fund (the Fund) including, without limitation, with power to do all things necessary or incidental to exercise that right in the name and on behalf of Isabella Sophia Haberl that she would be able to do if she were not a minor. 10. In relation to Andrea Haberl in her capacity as trustee of the Fund and subject to any further order of the Court, Andrea Haberl must: (1) Provide sworn annual accounts detailing all items of expenditure and income in her administration of the Fund to NSW Trustee and Guardian no later than 30 September each year for year ending 30 June in that year; (2) Not spend more than $10,000 out of the Fund for any single item without the consent of NSW Trustee and Guardian; and (3) Not retire as trustee of the Fund or acquiesce in the appointment of any other person as a trustee of the Fund without the consent of NSW Trustee and Guardian. 11. In these orders a reference to the consent of NSW Trustee and Guardian includes consent upon such terms as NSW Trustee and Guardian in its absolute discretion considers reasonable. 12. Direct that Andrea Haberl is not entitled to indemnity from the Estate for any legal or other costs incurred by her of or incidental to these proceedings on and from 28 February 2022 up to and including 17 June 2022. 13. Note that the Court otherwise makes no order as to the costs of any party of or incidental to these proceedings on and from 28 February 2022 up to and including 17 June 2022. 14. Refer these proceedings to the Registrar in Probate to complete the grant in Order 4. 15. Grant liberty to apply to Andrea Haberl and NSW Trustee and Guardian on 7 days' written notice in the first instance to the Associate to Kunc J in relation to the working out of these orders.

Amendments 20 June 2022 - Paragraph 29 of judgment - second sentence. Changed from "Karin proposed she could live in the property as caretaker until Isabella attained her majority, which would also allow Karin to live near her own mother." TO "Karin proposed that she could manage the property until Isabella attained her majority." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022