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Catchwords: EQUITY — Trusts and trustees — Judicial advice — Plaintiff is executor of estate — Plaintiff seeks advice as to administration of estate —Where father died and estate is wholly in Portugal — Where eldest son took possession of all assets from father’s estate — Where mother and middle son engaged in extensive legal disputes over estate of father in Portugal — Where distribution of mother’s estate depends on distribution of the father’s — Where eldest son and middle son engaged in legal disputes over estate of mother in NSW — Plaintiff seeks expert advice on Portuguese succession law — Plaintiff seeks to engage a costs assessor to determine entitlement to indemnification per Cherry v Boultbee

Legislation Cited: Trustee Act 1925 (NSW) ss 5, 63, 85
Uniform Civil Procedure Rules 2005 (NSW) r 55.1

Cases Cited: Application by Justin McCarthy and The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation [2026] NSWSC 303
Application of Baldwin [2021] NSWSC 1438
Application of Burns [2026] NSWSC 413
Application of Glenwillow Investments Pty Ltd [2023] NSWSC 1517
Cherry v Boultbee (1839) My & Cr 442; 41 ER 171
Estate of Wilson [2025] NSWSC 1056
Ex parte Schneider; Re Blashild [2009] NSWSC 566
Kaljo v Mitchell [2025] NSWSC 404
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Main Rouge Pty Ltd [2026] NSWSC 168
Re Estate Late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844
Stojic v Stojic (2018) 98 NSWLR 512
The Application of JABW Pty Ltd atf the Win Williams Investment Trust [2026] NSWSC 266
The Application of Karen Michelle McSwain; In the matter of the Estate of George Arthur Crack [2026] NSWSC 561

Category: Principal judgment

Parties: David Charles Shad (Plaintiff)
No defendant

Representation: Counsel:
H El-Hage SC and O Ronan (Plaintiff)
Solicitors:
Shad Partners (Plaintiff)

File Number(s): 2025/00365713

Publication restriction: Nil

JUDGMENT

Introduction

1. The plaintiff in these proceedings, Mr David Charles Shad, is the independent administrator of the estate of the Fernanda Dos Anjos Fernandes Morias (Fernanda, or the deceased), who died on 6 June 2018.

2. By Summons filed on 22 September 2025, the plaintiff seeks relief under s 63 of the Trustee Act 1925 (NSW) (Trustee Act) by way of an opinion, advice or direction with respect to certain questions relating to the administration of the deceased’s estate. In particular, the plaintiff seeks advice as to whether he would be justified in procuring expert advice on certain matters of Portuguese succession law and civil procedure, and in engaging a costs assessor in respect of debts for which a former administrator seeks indemnification, both of which the plaintiff submits may meaningfully affect the size and distribution of the estate.

Legal Principles: Judicial Advice

3. Section 63 of the Trustee Act relevantly provides the following:

63 Advice

(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

(3) Rules of court may provide for the use, on an application under this section, of a written statement signed by the trustee or the trustee’s Australian legal practitioner, or for the use of other material, instead of evidence.

(4) Unless the rules of court otherwise provide, or the Court otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application.

…

(8) Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution.

(9) The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith.

(10) Any person who claims that the person’s rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the Court, apply to the Court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution.

(11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any application under this section is served, or to whom notice is given in accordance with subsection (8), shall be bound by any opinion advice direction or order given or made under this section as if the opinion advice direction or order had been given or made in proceedings to which the person was a party.

4. In relation to s 63(3) of the Trustee Act, r 55.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides guidance on the “written statement” that can be provided to the Court:

55.1 Statement

(1) A statement under section 63 of the Trustee Act 1925—

(a) must be divided into consecutively numbered paragraphs, and

(b) must state the facts concisely, and

(c) must state the question for opinion, advice or direction.

(2) Despite rule 6.12(2), the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.

5. Section 85 of the Trustee Act also relevantly provides the following:

85 Excusable breaches of trust

(1) Where a trustee is or may be personally liable for any breach of trust, the Court may relieve the trustee either wholly or partly from personal liability for the breach.

(2) The relief may not be given unless it appears to the Court that the trustee has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the direction of the Court in the matter in which the trustee committed the breach.

6. In Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church case) at [36], the plurality (Gummow ACJ, Kirby, Hayne and Heydon JJ) emphasised that “it is desirable that trustees in doubt as to a course of action should not proceed with it and seek relief under s 85 afterwards, but rather seek s 63 advice first”.

7. The law and legal principles governing the determination of an application for judicial advice under s 63 of the Trustee Act are well settled. In Application of Burns [2026] NSWSC 413 (Burns) I stated at [51]-[58]:

“[51] This is an application for judicial advice under s 63 of the Trustee Act 1925 (NSW) (Trustee Act). The applicable legal principles in relation to applications for judicial advice under that provision are well settled. Those principles are briefly stated by McGrath J in Application of Glenwillow Investments Pty Ltd [2023] NSWSC 1517 [Glenwillow] at [11]-[17], which I gratefully adopt. For convenience, I will reproduce those paragraphs of his Honour’s judgment below:

‘[11] Section 63(1) of the Trustee Act is in the following terms:

A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

[12] There is a single jurisdictional bar to obtaining judicial advice pursuant to s 63 of the Trustee Act - the applicant must point to the existence of a question respecting the management or administration of trust property or a question respecting the interpretation of the trust instrument: Macedonian Orthodox Community Church St Petka Incorporated v His Eminance [sic] Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42, Gummow ACJ, Kirby, Hayne and Heydon JJ at [58].

[13] Section 63 of the Trustee Act operates to provide a private advice to a trustee because it gives personal protection to this trustee by operation of s 63(2): Macedonian at [64]. Section 63(2) of the Trustee Act provides:

If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.

[14] An application for judicial advice under s 63 of the Trustee Act is primarily for the purpose of enabling the trustee to be advised as to the nature or extent of their powers and duties of management or administration of the trust property rather than resolving disputed questions of construction, particularly where the respective rights of beneficiaries and creditors are concerned: Re BTA Institutional Services Australia Ltd [2009] NSWSC 1294, Brereton J at [6].

[15] The expression “management or administration of property” in s 63(1) of the Trustee Act refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions: Application of Gnitekram Marketing Pty Ltd [2010] NSWSC 1328, Hallen AsJ at [13].

[16] I am satisfied that the application before me is comfortably one which raises a question respecting the management or administration of trust property because it concerns whether the Trust is to be managed or administered in accordance with the Trust Deed.

[17] Having satisfied the jurisdictional issue, the next question is whether I should exercise my discretion to give the judicial advice that is sought. The discretion is wide, and there are no express words, and no implications from the express words used in s 63 of the Trustee Act which make some discretionary factors always more significant or controlling than others, and the discretion is confined only by the subject matter, scope and purpose of the legislation: Macedonian at [59]. The best interests of the trust estate are of primary importance: Macedonian at [105], [107] and [125]. The protection of those interests is the principal purpose for the court exercising the power in s 63 of the Trustee Act, and, incidentally, the protection of a trustee acting in those interests: Re Estate of Chow Cho-Poon [2013] NSWSC 844, Lindsay J at [182].’

[52] Relevantly, s 5 of the Trustee Act contains the following definitions:

Legal representative means executor or administrator.

…

Trust does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of legal representative of a deceased person.

Trustee has a meaning corresponding with that of trust; and includes legal representative and the NSW Trustee and a trustee company.

[53] In this, it is clear that executors and, relevantly, administrators, are able to make applications under s 63 of the Trustee Act

[54] In addition to s 63 of the Trustee Act, the jurisdiction of the Supreme Court to provide judicial advice to a trustee (which relevantly includes executors and administrators) is further provided for in r 54.3 of the UCPR.

[55] I cited and applied those principles in the Estate of Wilson [2025] NSWSC 1056.

[56] The approach to be taken by the Court in applications of this kind is also well settled, and was recently considered by Hammerschlag CJ in Eq in Application by Justin McCarthy and The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation [2026] NSWSC 303 at [11], where his Honour said:

‘The approach to be taken by the Court in applications of this kind is well settled. It is not necessary to determine factual matters and it is common and often appropriate to give advice on the basis of facts either proved by affidavits or alleged in a written statement. I have studied the material provided by the Plaintiffs and this is the approach I have taken: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at 95 [79].’

[57] The paragraph of the judgment of the High Court of Australia in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 referred to by Hammerschlag CJ in Eq, being paragraph [79] of the reasons of Gummow ACJ, Kirby, Hayne and Heydon JJ, provides (footnote omitted):

‘It is very common in judicial advice applications for the court to be invited to give advice on the basis of facts, whether proved by affidavit as contemplated by s 63(4) or alleged in a ‘written statement’ or ‘other material’ as contemplated by s 63(3), which are contested and controversial. As Palmer J said, a ‘judicial advice application ... is founded upon facts stated to the Court by the trustee, untested by adversarial procedure, and assumed by the Court to be true’ – although ‘only for the purpose of the application.’

[58] In applying these principles, I do not propose to make findings in relation to factual matters, but rather, give advice on the basis of facts either proved by affidavits or alleged in a written statement.”

8. I note also, and in extension of what is said at [52]-[53] of Burns, that s 5 of the Trustee Act also defines administrator to be an administrator within the meaning of the Probate and Administration Act 1898 (NSW).

9. For further recognition that it is consistent with the role of an independent administrator to seek judicial advice, see also Stojic v Stojic (2018) 98 NSWLR 512 at [40] (Ward CJ in Eq) and Kaljo v Mitchell [2025] NSWSC 404 at [61] (Slattery J).

10. In relation to the Court’s approach to evidence and fact finding (or rather, not), and the principles set out in the Macedonian Church case in relation to judicial advice more generally, in Re Estate Late Chow Cho-Poon; Application for J**udicial A**dvice [2013] NSWSC 844 (Cho-Poon), Lindsay J stated the following at [184]-[195]:

“[184] With this in mind, I turn to eight points specifically identified by the plurality in the Macedonian Church case as material to the operation of s 63: 237 CLR 89 [54] - 95 [76].

[185] First, the jurisdiction or power conferred by s 63 is not constrained by implications or limitations not found in the express words of the section: 237 CLR 89 [55]. There is nothing express or implied in s 63 that limits its application to ‘non-adversarial’ proceedings, or proceedings other than those in which a trustee is being sued for breach of trust, or proceedings other than those in which one remedy sought is the removal of a trustee from office: 237 CLR 89 [55]-[57].

[186] Secondly, only one jurisdictional bar to s 63 exists: an applicant must point to the existence of a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument: 237 CLR 89-90 [58].

[187] Thirdly, there is nothing express or implied in the text of s 63 that makes some discretionary factors always more significant or controlling than others. There are no implied limitations on discretionary factors arising under s 63. The Court’s discretion is confined only by the subject matter, scope and purpose of the legislation: 237 CLR 90 [59] and 128 [196].

[188] Thus (as appears at 237 CLR 90 [60]): (a) the fact that a court may rely on a written statement of the trustee, or use other material ‘instead of evidence’ by reason of s 63(3), gives rise to discretionary considerations of substantial weight where the question for advice is in form or substance an application which will determine or affect questions that could also be resolved in ordinary adversarial litigation; and (b) the Court may properly decline judicial advice if, for example, a contested construction suit, constituted by the disputing parties and resolved by a judge acting on evidence, appears to be more apt to the resolution of a question concerning the interpretation of a trust instrument; but (c) the discretion of the Court to consider applications brought under s 63 is not yoked to a general first principle that, where there is a contest or where there are adversaries, it is not appropriate to give advice.

[189] Fourthly, the procedure for which s 63 provides is ‘summary’ in the sense that it permits a trustee to obtain the opinion, advice or direction of the Court without commencement of a suit for the general administration of a trust: 237 CLR 90 [61] - 91 [63].

[190] Fifthly, s 63 operates as an exception to the Court’s ordinary function of deciding disputes between competing litigants. It affords a facility for giving advice to a trustee that is ‘private’ in the sense that a primary function of the section is to give personal protection to the trustee; others permitted to participate in a s 63 application, because they may be affected by advice given to a trustee, are not strictly speaking ‘parties’ to the proceedings or in a position of parity with the trustee: 237 CLR 91 [64] - 92 [66].

[191] Sixthly, the operation of s 63 will tend to vary with the type of trust involved: 237 CLR 92 [67] - 93 [68]. Every s 63 application depends on its own facts and is essentially a matter for the discretion of the judge who hears it: 237 CLR 88 [51]. The merits of any particular decision made under s 63 must depend on the particular circumstances of the case in which the decision was made: 237 CLR 95 [76].

[192] Seventhly, s 63 makes provision for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office, and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee’s duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of litigation: 237 CLR 93-94 [71].

[193] Eighthly, certain propositions enumerated in the judgment of the Court of Appeal under review in the High Court - reported in [2007] NSWCA 150 at [63] - should not be regarded, as propositions, as expressing the governing law in Australian courts.

[194] Semble, the propositions disclaimed by the High Court are propositions to the effect that:

(a) the proper province of judicial advice is guidance for the future;

(b) section 63 is intended to empower advice to be given to those who have the stewardship of property for the benefit of others;

(c) section 63 does not empower advice in connection with litigation that concerns merely whether the trustee has, in the past, committed breaches of trust even if the litigation (to establish the alleged breach of trust) necessarily involves the proper construction of a trust instrument;

(d) section 63 does not empower advice in connection with litigation that involves merely allegations of past misconduct on the part of the trustee that, if established, will entail personal liability for breach of trust or statutory wrongdoing (and where the trust property will, in no way, be protected or enhanced by defence of the claim); and

(e) the provision to a trustee of an indemnity from trust assets should not be provided in advance under colour of private judicial advice.

[195] Care needs to be taken in elaboration of the High Court’s disclaimer of these propositions because its disclaimer was generic and not entirely unqualified. The object of the disclaimer appears, in part, to have been to caution against the imposition of a gloss, of any description, on the text of s 63. Care needs to be taken not to elevate any disclaimer of a particular proposition into a counter-proposition likewise suffering from the character of a gloss on the governing legislation.”

11. I note the plaintiff also drew my attention to the elaboration of the principles explored above as in Glenwillow. I accept this authority but note it does not go further than the cases I have outlined above.

Hearing details and evidence

12. The hearing of the Summons took place on 25 May 2026, with Mr H El-Hage SC and Ms O Ronan of counsel appearing for the plaintiff. There is no defendant.

13. In making the application, the plaintiff read and relied on the following evidence and documents:

14. the affidavit of David Charles Shad Sworn on 19 September 2025 and the exhibit to that affidavit;

15. included within the exhibit to the affidavit listed above, a 30-page memorandum of advice from Mr El-Hage SC and Ms Ronan in relation to the issues currently before the Court styled as a (non-confidential) Joint Opinion;

16. the supplementary affidavit of David Charles Shad Sworn on 5 December 2025 and the exhibit to that affidavit; and

17. the written statement of facts of the trustee made in accordance with r 55.1 of the UCPR signed on 19 September 2025 (Rule 55.1 Statement).

18. The plaintiff also provided me with Submissions dated 20 May 2026 (PWS) and a Chronology.

19. Considering the legal principles relating to judicial advice described above, I bear in mind that the Court is not ordinarily required to make factual findings in relation to giving judicial advice under s 63 of the Trustee Act, as its role is instead to provide advice on the basis of facts either proved by affidavits or alleged in a written statement (Application by Justin McCarthy and The Hulak Foundation Pty Ltd ACN 681 394 525 as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation [2026] NSWSC 303 (McCarthy) at [11] (Hammerschlag CJ in Eq); Burns at [56]). Accordingly, the following B**ackground set out below is a narrative of the relevant history and underlying factual matrix of this application. It does not set out factual findings of this Court.

20. The B**ackground is largely adopted from the Rule 55.1 Statement, the importance of which was underscored in Cho-Poon. This was affirmed by the plaintiff during the course of the hearing following a question raised by me as to the evidence I was to consider (TR P3 L4-26):

“EL-HAGE: … your Honour would proceed on the basis that the r 55.1 statement, your Honour assumes the correctness of it without deciding.

HER HONOUR: Yes.

EL-HAGE: I would suggest to your Honour, in fact, I make the submission to your Honour that the central facts relied upon by Mr Shad are those set out in the 55.1 statement. As your Honour has observed, there are some related factual matters addressed in particular the documentary evidence in the exhibit. I propose to take your Honour to some of that, but I do accept that your Honour is not making findings, for example, as to whether or not any person acted in a particular way or contrary to a particular statute or anything of that kind. I understand the proposition.”

17. I will also refer to family members and relevant others by their first names, without intending any disrespect or overfamiliarity.

Background

Family background

18. This application arises out of complex and interrelated proceedings in Portugal and New South Wales concerning the administration of two estates: Fernanda’s estate, and the estate of her late husband, Vitalino Da Graça Maia.

19. Fernanda and Vitalino came to Australia from Portugal and were married on 21 November 1973 in Sydney (Rule 55.1 Statement [1]). The evidence indicates that the couple had three children from this marriage, being Tony Maia, Victor Maia and Rosemary Maia, although Tony has denied that either Victor or Rosemary are the children of Vitalino (Rule 55.1 Statement [2]). The marriage of Fernanda and Vitalino continued up until Vitalino’s death.

20. In or around late 2014, Vitalino relocated to Portugal (Rule 55.1 Statement [3]). In mid-2015, Vitalino was diagnosed with a terminal illness (Rule 55.1 Statement [4]). Subsequent to Vitalino’s diagnosis, Tony moved to Portugal.

21. On 15 November 2015, Vitalino died intestate in Portugal (Rule 55.1 Statement [6]). At the time of his death, Vitalino’s assets were located in Portugal (Rule 55.1 Statement [7]).

22. On or around 19 November 2015, Tony commenced probate proceedings in Portugal in respect of Vitalino’s estate (Rule 55.1 Statement [8]). In those proceedings, Tony identified himself and Fernanda as the sole heirs of Vitalino’s estate and did not acknowledge Victor or Rosemary as beneficiaries (Rule 55.1 Statement [8]). Tony also wrote to Victor by email, stating that “None of you will get anything of papa’s assets”.

23. On or around 27 December 2015, Tony filed a list of Vitalino’s assets with the Portuguese Tax and Customs Authority (Rule 55.1 Statement [9]). That list included the contents of four Portuguese bank accounts, three properties, a vehicle and a rifle.

24. On or around 4 January 2016, Tony obtained a Power of Attorney from Fernanda at the Portuguese Consulate in Sydney, which conferred power upon Tony to proceed with the division of Vitalino’s assets with other interested parties (Rule 55.1 Statement [10]). Pursuant to that Power of Attorney, Tony took possession of all assets from Vitalino’s estate (Rule 55.1 Statement [11]). On or around 2 February 2016, Tony obtained a further Power of Attorney from Fernanda, which conferred power upon him to receive amounts deposited into the account of Fernanda at the Commercial Bank of Portugal (Rule 55.1 Statement [13]). Portuguese bank records also record approximately €2,688,340.28 was transferred out of Vitalino’s bank accounts (Rule 55.1 Statement [14]).

Portuguese proceedings

25. In or around October 2016, on Fernanda’s instruction as a beneficiary of Vitalino’s estate, an injunction was filed with the Central Civil Court of Santarém to freeze any assets under Tony’s control (Rule 55.1 Statement [16]).

26. On or around 31 January 2017, Fernanda and Victor commenced proceedings in the Central Civil Court seeking their shares of Vitalino’s estate (Rule 55.1 Statement [17]). Rosemary declined to join these proceedings (Rule 55.1 Statement [18]).

27. On 12 September 2017, at a preliminary hearing, the Central Civil Court recognised the rights of Fernanda and Victor as beneficiaries of Vitalino’s estate (Rule 55.1 Statement [19]). On 27 March 2018, the Central Civil Court delivered judgment and made the following orders (as translated on 5 September 2021) (Rule 55.1 Statement [21]):

“In view of the foregoing and in accordance with the aforementioned legal provisions, the partially admissible action is considered partially proven and, consequently:

A) The defendant Tony Maia is ordered to acknowledge that the sole and universal heirs of Vitalino da Graça Maia, deceased on 15 November 2015, are, in addition to the defendant: Fernanda dos Anjos Fernandes Morais, who is also the administrator of the estate, and Victor Morry Maia

B) To be declared null and void the deed of distributions granted before Notary Alexandra Heleno Ferreira in the Ourém Notary’s Office on 22 January 2016 by the defendant Tony Maia, as himself and in the capacity of attorney-in fact of Fernanda dos Anjos Fernandes Morais, drawn up from X.

C) The defendant Tony Maia is ordered to turn over to the estate arising from the death of Vitalino da Graça Maia all the assets distributed through said deed:

1. Rustic building, located in lugar de Sesmaria da Coutada Velha, Meia Courela, parish and municipality of Benavente, … with the patrimonial value of €475.59.

2. Rustic building, located in lugar de Vale Carvalho, border with Camarões, … with the patrimonial value of €328.04.

3. Urban building, for dwelling and public patio, located in lugar de Aldeia de Santa Teresa, parish of Freixianda, Ribeira de Fárrio e Formigais, municipality of Ourém… with the patrimonial value of €73 390.00.

D) The Defendant Tony Maia is acquitted of the remaining claims brought by the Plaintiffs. The Plaintiffs and the Defendant shall bear costs in the proportion to the loss.”

28. In or around May 2018, Tony, Victor and Fernanda filed appeals from the decision of the Central Civil Court to the First Civil Division of the É****vora Court of Appeal (Rule 55.1 Statement [22]).

29. On 6 June 2018, Fernanda died in Sydney (Rule 55.1 Statement [23]).

30. On 11 November 2018, Victor filed an application for Letters of Administration for Fernanda’s estate, supported by an affidavit affirmed on 9 November 2018 (Rule 55.1 Statement [24]). In his affidavit affirmed on 9 November 2018, Victor deposed that the gross value of Fernanda’s estate was $754,579.86, and the net value was $596,545.83 (Rule 55.1 Statement [25]). On 29 November 2018, Victor was granted Letters of Administration for Fernanda’s estate (Rule 55.1 Statement [26]).

31. On 11 July 2019, the Évora Court of Appeal partially upheld each of the parties’ appeals (Rule 55.1 Statement [27]). The orders made by that court, as translated on 19 November 2024, were as follows (Rule 55.1 Statement [28]):

“1) To revoke the part of the sentence which exempted the parties from paying the remainder of the court costs, such exemption being determined either in the scope of the action itself and in the scope of the appeals filed.

2. To alter the part of the sentence referring to:

a) its paragraph A), which, in light of the above, will now read as follows:

A) The defendant Tony Maia is ordered to acknowledge that, in addition to the defendant, the heirs of Vitalino da Graça Maia, deceased on 15 November 2015, are Fernanda dos Anjos Fernandes Morais, who is also the administrator of the estate, and Victor Morry Maia.

b) its paragraph C), in light of the above, will now read as follows:

C) The defendant Tony Maia is ordered to turn over to the estate arising from the death of Vitalino da Graça Maia the following assets:

1. Rustic building, located in lugar de Sesmaria da Coutada Velha, Mei a Courela, parish and municipality of Benavente, … with the patrimonial value of €47.59.

2. Rustic building, located in lugar de Vale Carvalho, border with Camarões, … with the patrimonial value of €32.04.

3. Urban building, for dwelling and public patio, located in lugar de Aldeia de Santa Teresa, parish of Freixianda, Ribeiro de Fárrio e Formigais, municipality of Ourém, … with the patrimonial value of €73 390.00.

4. A Mercedes Benz 200D light vehicle, registration number X.

5. A Pietro Berettai hunting rifle, serial model X.

6. The amount of €16 782.41, deposited in current account n°X held at X (TN: Portuguese Commercial Bank).

7. The amount of €135 607.50, deposited in the term deposit account n°X held at X.

8. The amount of €200 900.00, deposited in the term deposit account n°X held at X.

9. The amount of €1.130.000,00, deposited in the term deposit account n°X held at X.

3. Partial costs, in both appeals by the defendant, (vide combined provisions of articles 663 n°2, 607 n°6, 527 n°1 and 2, 529 n°4 and 533 n°1 and 2, all of the Code of Civil Procedures [CPC]).”

32. Tony sought review of the decision of the Évora Court of Appeal in the Portuguese Supreme Court of Justice (Rule 55.1 Statement [29]).

33. On 14 January 2020, the Supreme Court of Justice dismissed Tony’s application with costs (Rule 55.1 Statement [30]).

NSW proceedings

34. On 7 May 2024, Tony commenced proceedings in this Court by Statement of Claim seeking the revocation of Victor’s Letters of Administration. On 10 July 2024, Victor filed a cross-claim in his capacity as administrator of Fernanda’s estate, seeking an order that Tony pay to Victor as the estate administrator the sum of €494,429.97 (Rule 55.1 Statement [33], [35]).

35. It is the understanding of the plaintiff that the sum of €494,429.97 is a third of the €1,488,000 that was in Vitalino’s bank accounts, and that this figure does not on its face account for Fernanda’s potential interest in the real property in Vitalino’s estate (TR P10 L30-36).

36. On or around 21 September 2024, Fernanda’s property at X, X Street, Randwick (Randwick property) was sold for $925,000 by Victor as the administrator of Fernanda’s estate. The net proceeds of sale of the Randwick property were $899,557.30. On a date unknown to the plaintiff, the net proceeds of the sale of the Randwick property were paid into this Court (Rule 55.1 Statement [37]-[39]). That money has subsequently been paid into the trust account of Shad Partners, the plaintiff’s law firm (Rule 55.1 Statement [43]).

37. On 21 February 2025, Parker J made the following relevant orders:

“1 Revoke the grant of letters of administration to the Defendant [Victor] on 29 November 2018.

…

3 Order that David Charles Shad [the plaintiff] have a grant of letters of administration of the Estate of the Late Fernanda dos Anjos Fernandes Morais …

6 The statement of claim be otherwise dismissed.

…

8 That a “suggestion” of the Court be recorded for the purposes of s 81(1) of the Probate and Administration Act 1898 (NSW), with the intent that a cross-claim filed in this proceeding by the defendant/cross-claimant be continued in the name of David Charles Shad.”

38. As a consequence of the proceedings, Victor has outstanding liabilities of $339,630.60 in legal costs and disbursements owed to solicitors and counsel in respect of which he claims indemnity from Fernanda’s estate (Rule 55.1 Statement [42]).

39. In the Summons, the plaintiff seeks the opinion, advice and direction of the Court with respect to the following matters:

“1 Whether the Plaintiff would be justified in seeking expert advice on the operation of Portuguese law with respect to the administration of the estate of Vitalino Da Graça Maia insofar as it might reasonably be expected to bear upon the size and distribution of the Deceased’s estate, including:

a. the identity of the administrator of Vitalino Da Graça Maia’s estate and, if the answer to that question is the Deceased, the effect of the death of an administrator of a deceased estate;

b. whether the orders of the Évora Court of Appeal, or alternatively the orders of the Supreme Court of Justice (together. the Portuguese orders), are final and conclusive;

c. whether the Portuguese orders, in substance and effect, give rise to a debt owed to the Deceased’s estate by Tony Maia;

d. the means by which the beneficiaries recognised in the Portuguese orders would receive the proportion of the estate of Vitalino Da Graça Maia to which they are entitled;

e. the effect of the death of a beneficiary of an undistributed estate on the entitlement of the deceased beneficiary and living beneficiaries;

f. the effect of the Portuguese orders on the entitlement, if any, of Rosemary Maia to any part of the estate of Vitalino Da Graça Maia; and

g. the means and estimated costs of enforcing the Portuguese orders in Portugal.

2 Whether the Plaintiff would be justified in engaging a costs assessor for the purposes of assessing the entitlement of Vitalino Da Graça Maia to indemnification for legal costs out of the Deceased’s estate.

3 Whether the Plaintiff would be justified in taking any such costs assessment into account in the distribution of the Deceased’s estate.”

Issues

40. Given the legal principles summarised above, together with the terms of the Summons and background facts, the following issues arise for consideration:

41. Does there exist a question respecting the management or administration of trust property?

42. If the answer to (1) is yes, should the Court exercise its discretion to give the judicial advice sought? In considering whether to exercise its discretion, the Court will consider whether (per the Summons) the plaintiff is justified in:

(a) seeking expert advice on the operation of Portuguese law with respect to the administration of the estate of Vitalino insofar as it might reasonably be expected to bear upon the size and distribution of the deceased’s estate; (b) engaging a costs assessor for the purposes of assessing the entitlement of Victor to indemnification for legal costs out of the deceased’s estate; and (c) taking any such costs assessment into account in the distribution of the deceased’s estate.

41. For the reasons that follow and having regard to all of the circumstances, I am satisfied that a question respecting the management or administration of trust property arises, and that I ought to exercise the discretion of the Court and provide judicial advice as sought. That is, that the plaintiff would be justified in both seeking expert advice on the operation of Portuguese law with respect to the estate of Vitalino, and in engaging and taking into consideration the findings of a costs assessor with respect to the legal costs incurred by Victor.

Issue 1: Is there a question respecting the management or administration of trust property?

42. In order for the Court to be empowered to give the advice sought under s 63(1) of the Trustee Act, the Court must be satisfied that the question to be addressed is in relation to the “management or administration of the trust property”.

43. As noted above, the expression “management or administration of property” in s 63(1) of the Trustee Act refers to both the manner in which trust property is managed, administered, handled, directed or controlled, and the actual carrying out of those functions. As part of this, the Court has a broad jurisdiction and power to advise and direct trustees, including executors and administrators.

Expert advice

44. The plaintiff submits that there is a question respecting the management and administration of the deceased’s estate, being firstly “whether he [Mr Shad] ought to seek expert advice capable of informing the decision whether to pursue enforcement of the Portuguese orders (as defined in the Summons) (whether by way of the cross-claim or otherwise, such as in Portugal)” (PWS [60]). The circumstances giving rise to this question will be explored below.

45. The plaintiff drew my attention to instances where the Court had previously issued judicial advice that proceedings should be continued (Application of Baldwin [2021] NSWSC 1438 at [19]-[20]), and where the Court advised that interim distributions were justified where executors are engaged in potentially lengthy and costly litigation overseas (Ex parte Schneider; Re Blashild [2009] NSWSC 566) (PWS [61]).

46. I am satisfied that the question before me, being whether the plaintiff ought to seek expert advice on whether to pursue enforcement of the Portuguese orders, is one which raises a question respecting the management or administration of the estate of the deceased, because I accept that receiving expert legal advice would be a prudent element of the management and administration of trust property. I am further satisfied of this as the case before me involves a close connection to the management of trust property in the midst of litigation. In the cases the plaintiff drew my attention to, managing trust property in the midst of litigation was considered a matter of management and administration. It would logically follow that the seeking of legal advice which will inform the plaintiff’s decision whether to pursue or continue pursuing litigation in relation to trust property would be a matter connected to the management and administration of trust property. I also reach this satisfaction noting the broad jurisdiction of the Court to advise and direct trustees.

47. To the extent that judicial advice could directly be sought on whether enforcement of the Portuguese orders should be pursued, I note that I do not have the evidence before me to be able to give such advice. The plaintiff also submitted, which submission I accept, that in cases where judicial advice was given directly in relation to whether the continuation of proceedings by an administrator may be warranted or in relation to whether interim distributions may be justified pending litigation, expert advice as to the costs of, length of and prospects of success in the litigation was provided in those proceedings (PWS [62]).

Costs assessments

48. The plaintiff submits that a second question has arisen respecting the management or administration of Fernanda’s estate, being “the extent to which Victor is entitled to indemnification from the estate in respect of legal costs, due to the possibility that some portion of those costs were incurred in the pursuit of Victor’s personal interests”.

49. The circumstances giving rise to this question will be explored below. For now, I am satisfied that the paying of an administrator’s costs from the estate is a matter in respect of the administration and handling of trust property, and whether Victor’s costs are those properly and reasonably incurred by an administrator in connection with the administration of the estate is a question arising about that administration.

Issue 2: Should the Court exercise its discretion to give the judicial advice sought?

50. The approach to be taken by the Court in applications of this kind is well settled. It is not necessary to determine factual matters and it is common and often appropriate to give advice on the basis of facts matters in a Rule 55.1 Statement or otherwise proved by (untested) affidavits. I have studied all of the material provided by the plaintiff and this is the approach I have taken (McCarthy at [11]).

51. I do not propose to repeat the very detailed and comprehensive submissions made by counsel in relation to the application or recite the substance of the Joint Opinion or terms of other evidence (beyond the factual circumstances I have already set out). This approach is usual in applications for judicial advice of this nature (see Main Rouge Pty Ltd [2026] NSWSC 168 (Hammerschlag CJ in Eq); The A**pplication of JABW Pty Ltd atf the Win Williams Investment Trust [2026] NSWSC 266 (Kunc J); McCarthy (Hammerschlag CJ in Eq), The Application of Karen Michelle McSwain; In the matter of the Estate of George Arthur Crack [2026] NSWSC 561 (Kunc J)).

52. It suffices to say that the material before the Court addressed issues relating to the size of the estate and enforceability of the Portuguese orders; the distribution of the estate, including issues relating to the application of the principles emerging from Cherry v Boultbee (1839) My & Cr 442; 41 ER 171; and cost assessment matters. I am of the view that the submissions and Joint Opinion engage comprehensively with these issues and have appropriately balanced the various considerations in relation to the best interests of the estate.

53. Accordingly, I am satisfied this is an appropriate case to exercise the discretion of the Court and provide judicial advice as sought. In being so satisfied, I am of the view it would be in the best interests of Fernanda’s estate for this advice to be provided.

54. More specifically, I am satisfied that the plaintiff would be justified in seeking expert advice on the operation of Portuguese law with respect to the administration of the estate of Vitalino insofar as it might reasonably be expected to bear upon the size and distribution of Fernanda’s estate.

55. I am also satisfied that it will be in the best interests of the deceased’s estate to advise that the plaintiff would be justified in engaging a costs assessor for the purposes of assessing the entitlement of Victor to indemnification for legal costs out of Fernanda’s estate, and advise that it would be justified for the plaintiff to take any such costs assessment into account in the distribution of Fernanda’s estate.

Costs

56. I note that prayer 6 of the Summons is a prayer for “costs”, with no further elaboration. No submissions were made to me by the plaintiff on costs.

57. The general rule is that costs of a trustee are to be paid out of the fund held by the trustee (UCPR r 42.25). I note it is typical for these costs to be paid out of the estate on an indemnity basis (see, for instance, Burns [131], Estate of Wilson [2025] NSWSC 1056 at [27] and Glenwillow at [38]).

58. In the Macedonian Church case, the plurality at [71] made the following comment with respect to costs for judicial advice about the prosecution or defence of litigation:

“In short, provision is made for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee’s duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. No less importantly, however, resolving those doubts means that the interests of the trust will be protected; the interests of the trust will not be subordinated to the trustee’s fear of personal liability for costs.”

59. I also have regard to what was said by Lindsay J at [192] of Cho-Poon (cited at paragraph [10] above) in relation to a trustee being “entitled to an indemnity for all costs and expenses properly incurred in performance of the trustees duties”, where it is accepted that the performance of that duty may include obtaining judicial advice. There is no evidence before me that the plaintiff has acted other than properly.

60. Consequently, I am satisfied that the plaintiff should get his costs from the estate on an indemnity basis.

ORDERS

61. For the reasons set out above, I make the following orders:

62. Pursuant to s 63 of the Trustee Act 1925 (NSW), the plaintiff in his capacity as the independent administrator of the estate of Fernanda Dos Anjos Fernandes Morais (the Deceased) is justified in seeking expert advice on the operation of Portuguese law with respect to the administration of the estate of Vitalino Da Graça Maia insofar as it might reasonably be expected to bear upon the size and distribution of the Deceased’s estate, including:

(a) the identity of the administrator of Vitalino Da Graça Maia’s estate and, if the answer to that question is the Deceased, the effect of the death of an administrator of a deceased estate; (b) whether the orders of the Évora Court of Appeal, or alternatively the orders of the Supreme Court of Justice (together. the Portuguese orders), are final and conclusive; (c) whether the Portuguese orders, in substance and effect, give rise to a debt owed to the Deceased’s estate by Tony Maia; (d) the means by which the beneficiaries recognised in the Portuguese orders would receive the proportion of the estate of Vitalino Da Graça Maia to which they are entitled; (e) the effect of the death of a beneficiary of an undistributed estate on the entitlement of the deceased beneficiary and living beneficiaries; (f) the effect of the Portuguese orders on the entitlement, if any, of Rosemary Maia to any part of the estate of Vitalino Da Graça Maia; and (g) the means and estimated costs of enforcing the Portuguese orders in Portugal.

2. The plaintiff is justified in engaging a costs assessor for the purposes of assessing the entitlement of Victor Morry Maia to indemnification for legal costs out of the Deceased’s estate.
3. The plaintiff is justified in taking any such costs assessment into account in the distribution of the Deceased’s estate.
4. The plaintiff’s costs are to be paid, or retained, as the case may be, out of the Estate of the Deceased on an indemnity basis.
5. The exhibits are to be returned, and they are to be retained intact by the producing party until the expiry of the time to file an appeal or until any appeal is determined.