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[2020] ACTSC 42
Supreme Court of the ACT
2020-02-25
Crowe AJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
PRACTICE AND PROCEDURE - JURISDICTION - Application in proceeding - inherent jurisdiction to restrain a solicitor from acting - where the solicitor will be an important witness in the substantive litigation as to the validity of the will.
Banks v Goodfellow (1870) LR 5 QB 549
Birkett Investments P/L v Streatfield Investments Pty Ltd [2016] ACTSC 323
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328
Drivas v Jakopovic [2019] NSWCA 218
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757
Ray Swift Moutrage & Associates (Applying Executor)
1. Ms S Kendall (the Testator) was born in 1921. She married Mr H Kendall in 1947. Mr and Ms Kendall had three children Donald, Richard (known as "Philip") and Lesley. For ease of reference, and meaning no disrespect, I will refer to the children by their given names.
2. In 1994, the Testator made a will in which she appointed Donald, Philip and Lesley as executors and trustees. She left her estate in trust to be divided equally among those of her children who survived her as tenants in common. If any child predeceased the Testator leaving children of their own (the Testator's grandchildren), then the child's share that would have gone to him or her, would be held on trust for those of the grandchildren who survived their parent and reach the age of majority, that is 18.
3. On 17 May 2007, both Mr H Kendall and the Testator signed powers of attorney in favour of Donald, Philip and Lesley.
4. On 21 May 2008, the Testator made a further will (the 2008 Will). After revoking all former wills it provided the following:
5. On the same day that she signed the Will, the Testator also signed an enduring power of attorney (EPA). In that EPA, the Testator revoked all former powers of attorney and appointed Lesley as her sole attorney. Both the 2008 Will and the EPA were witnessed by Ms Mona Moutrage, solicitor, and Mr Andrew Hakes, clerk, at Ray Swift Moutrage & Associates (RMA).
6. Prior to the making of the 2008 Will, Mr H Kendall (the Testator's husband) had been suffering from dementia. Donald and Philip became concerned and arranged for him to be moved to an aged care home with a dementia facility. Mr H Kendall moved there on 28 March 2008.
8. Shortly before this, on 30 April 2009 Donald commenced proceedings in the ACT Guardianship and Management of Property Tribunal (the Tribunal) seeking orders appointing the Public Advocate and the Public Trustee as Guardian and Manager respectively in relation to the Testator's affairs. That application was heard by the Tribunal on 4 August 2009. It was dismissed on that day.
9. The Testator died on 28 June 2017. Lesley was granted probate of the 2008 Will on 17 December 2018. That grant was made in common form. The net assets of the estate are held in trust pending resolution of the litigation as to the validity of the 2008 Will. It appears that Ms Moutrage, and her firm RMA, acted for Lesley in obtaining probate and subsequently in the administration of the estate.
10. On 4 October 2019, Philip lodged with the Court an Application in Proceeding seeking the following orders in relation to the probate of the 2008 will:
11. The grounds for the application include the following:
2.6 Between 2006 and 2008 the Deceased's mental faculties deteriorated, her personality changed, and she began to accuse her sons of stealing from he [sic], despite Philip and Donald not having been [sic]
2.7 On 31 July 2007, the Deceased was diagnosed with osteoporosis, hypothyroidism and short-term memory problems.
2.8 On 30 April 2008, Dr Shannon Craft made an examination that the Deceased had testamentary capacity to make a will.
2.9 On 7 August 2008 a consulting geriatrician assessed the Deceased in relation to paranoid thoughts and behaviour. Dr Wadhwa assessed her as having deficits with abstract thinking and judgment and that the likely paranoid behaviour was likely to be associated with an underlying dementia illness.
2.10 There are suspicious circumstances surrounding the preparation of the 2008 Document in that:
- 2.10.1 Lesley was involved in the process of giving instructions to RSM;
- 2.10.2 Lesly restricted Philip and Donald from contacting the Deceased in the period prior to the execution of the 2008 Documents;
- 2.10.3 The 2007 POA was revoked in or about May 2008 and an enduring power of attorney was executed in favour of Lesley.
- 2.10.4 The 2008 Document substantially benefits Lesly and her children and significantly reduces the gifts that Donald and Philip were to receive.
2.11 The Deceased was suffering delusions, including that her sons had been stealing from her. This created in her a false state of mind so the 2008 Document did not reflect the Deceased's real intention and her true will had been aware of the true circumstances.
2.12 The 2008 Document is not the last will of a free and capable testator.
2.13 On 17 May 2007, the Deceased executed an enduring power of attorney (the EPA) prepared by MinterEllison Lawyers appointing the Philip, Lesly and Donald as her attorneys.
2.14 Thereafter the Deceased revoked the power of attorney executed in favour of her three children and executed an enduring power of attorney in favour of Lesley (EPOA).
2.15 The creation of the EPOA created a presumptive relationship between the Deceased and Leslie.
2.16 By executing the 2008 Document which substantially favours Lesley, a presumption of influence arises which ipso facto requires rebuttal by Lesley as the party seeking to uphold the will.
12. The evidence in relation to the 4 October 2019 Application in Proceeding has been filed and served. It is ready to be listed for hearing.
13. On 20 December 2019, Philip filed a further Application in Proceeding (the Representation Application). In the Representation Application Philip seeks the following orders:
14. The respondent named in the Representation Application was originally "Mona Moutrage". However, that was amended at the time of filing to Lesley.
15. The following affidavits were tendered and admitted into evidence for the purposes of the Application:
(a) Mr Timothy J Morton affirmed 19 December 2019 (Exhibit "A1");
(b) Ms Mona Moutrage affirmed 28 October 2019 (Exhibit "A2");
(c) Donald affirmed 12 September 2019 (Exhibit "A3");
(d) Donald affirmed 4 December 2019 (Exhibit "A4");
(e) Mr Alistair J M Kendall (Alistair) affirmed 4 December 2019 (Exhibit "A5")
(f) Ms Suzie R Zakis affirmed 28 October 2019 (Exhibit "R1")
16. The contents of the factual summary set out under the heading "Background" above has been taken from the affidavits listed in [15] above.
17. It is important to note here the evidence of Ms Moutrage as to her involvement in the drawing and making of the 2008 Will. Ms Moutrage says in her affidavit (Exhibit "A2") that she did not know the Testator prior to the initial conference in relation to the 2008 Will. At some time before 14 May 2008 a staff member of RMA took a telephone call from the Testator and made an appointment for Ms Moutrage to visit the Testator at her home to take initial instructions. I infer that it was clear that these instructions related to the making of a will and perhaps a power of attorney.
18. Either at the time of the first telephone call or in a subsequent communication, the Testator was asked to obtain a letter from her doctor in relation to her capacity. I note that on 30 April 2008 the Testator attended her GP, Dr S Craft, who wrote a letter bearing that date in which she set out her opinion that the Testator "does not suffer from a mental condition or disorder of the mind which may effect [sic] her judgement" in testamentary matters.
19. Ms Moutrage attended at the Testator's home to take instructions. When she met the Testator there was no other person present. The Testator is said to have expressed anger at her sons (Donald and Philip) in relation to Mr H Kendall's removal from home.
20. At para 8 of her affidavit (Exhibit "A2"), Ms Moutrage says:
Although she seemed extremely upset due to the recent events (the Testator) also seemed clear of mind. She appeared to understand my advice and she gave clear instructions about what she wanted to include in her Will and Enduring Power of Attorney. She responded to questions with clear, consistent and helpful answers. She did not appear confused or hesitant. Nothing she said or did gave me any concern that she might not have had the capacity to give me instructions.
21. Ms Moutrage then describes in some detail the instructions given by the Testator both in relation to a new power of attorney and a new will. This process took about 1 hour. As she was leaving, Ms Moutrage met a woman who was just arriving at the Testator's home. The Testator introduced the woman as her daughter, Lesley.
22. On 21 May 2008, Lesley brought the Testator to RMA's offices. Ms Moutrage asked Lesley to wait outside while she spoke with the Testator. Ms Moutrage then explained the will to the Testator and read it through to her. As noted above, the Will was then executed by the Testator in the presence of Ms Moutrage and Mr Hakes. The 2008 Will is, on its face rational and duly executed.
23. Donald, in his affidavit of 12 September 2019 (Exhibit "A3") affirmed that he had between 2006 and 2008 noticed a deterioration in the Testator's health, including her capacity for decision making. He provided some examples of this deterioration including an episode of uncharacteristic behaviour at about Christmas time in 2006, whereby the Testator forgot that Donald and his partner Rhonda were having Christmas lunch at the Testator's house. Donald also said that he noticed a deterioration in the cleanliness of the Testator's home in early 2008. Donald then recounted a breach in his relationship with the Testator in relation to the decision to move Mr H Kendall into the aged care facility. The breach escalated from April 2008 onwards. Donald recounted episodes when the Testator expressed what he described as unreasonable, if not irrational, beliefs including that he had stolen her coin collection. This led to Donald and his partner ceasing visits to the Testator. Later the Testator accused him of stealing her sandwich-maker. Any allegation of theft was denied.
24. Donald's second affidavit dated 4 December 2019 (Exhibit "A4") responded to the affidavits of Lesley (Exhibit "R2") and Ms Moutrage (Exhibit "A2"). Much of the detail Donald's December affidavit is not relevant for current purposes. However, in relation to Ms Moutrage's account that the Testator appeared to be "clear of mind" at the instructions appointment on 14 May 2008 Donald said, at [4c.]:
The (Testator) was able to conduct herself in personal conversations quite astutely. She had completed secretarial studies as a younger person, had served during WWII as a teletype operator, worked in the Patent's [sic] Office as a secretary after the war, and always maintained a keen interest in current affairs. However, this does not change the fact that many of her beliefs about Philip and me were the product of delusions.
25. The Testator, by her 2008 Will, appointed Alistair as a joint executor with Lesley. Alistair is Donald's son. In his affidavit affirmed on 4 December 2019 (Exhibit "A5") Alistair states that he had had a falling out with his father and Philip in early 2008 over the moving of Mr H Kendall into residential aged care. Alistair recounts three meetings which he attended in relation to the Testator's will. One of these, which he said was in mid-2008, related to the allegations that Donald and Philip had been stealing from the Testator.
26. The second meeting was said to have been shortly after the first. If that is correct, the first meeting must have been some time before 14 May 2008. In any event, Alistair says that in relation to the second meeting he was contacted by Lesley who asked him to visit the Testator's home for a discussion about her will. It was suggested that he might be appointed as an executor "...so Donald and Phil don't have any way of taking more than they already have."
27. Alistair, Lesley and the Testator were present at the second meeting. There was some further discussion of the alleged stealing by Donald and Philip. Alistair was left with the impression that the Testator was following Lesley's suggestions at that time. A third meeting was arranged.
28. Alistair and his then partner Christine attended the third meeting at the Testator's home. When they arrived Lesley, Ms Moutrage and the Testator were there. Also present was Judith Upton (Judith) a long-time family friend and former partner of Philip. Alistair formed the impression that Ms Moutrage and Judith were friends. Christine asked Lesley "how did you find representation?" Alistair remembers Ms Moutrage and Judith laughing in response, and the former saying "...we know each other very well..."
29. Alistair recalled that Lesley spoke to Ms Moutrage about the proposed distributions under the will rather than the Testator. Lesley informed him that it was proposed that 40% would go to her, about 60% to the grandchildren and 2.5% to each of Donald and Philip.
30. Alistair said that Ms Moutrage did most of the talking at the meeting. He was asked to be an executor. He agreed and signed a document expressing that agreement. There were other documents on the table which he thinks included pages from a will.
31. Mr Blank, counsel for the applicant, clarified that the orders sought by his client were that Ms Moutrage and RMA should be restrained from acting for the estate in the litigation relating to the validity of the will. No order was sought in relation to the administration of the estate.
32. Mr Blank submitted that the presumption of validity arising from the due execution of a rational will can be rebutted by the proof of circumstances which raise doubt as to testamentary capacity. That proof shifts the evidential burden to the party propounding the will to prove that the testator was of "sound and disposing mind"; Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 (Tobin) at [45]. That required the proponent to satisfy the Court that the testator:
(a) Understood the nature of making the will and its effects;
(b) Understood the extent of the property he/she was disposing of; and,
(c) Comprehend and appreciate the moral claims to which the testator ought give effect.
Mr Blank referred me to Banks v Goodfellow (1870) LR 5 QB 549 at 565 as authority for the above.
33. Upon proof of capacity and due execution there is a presumption that the testator knew and approved of the contents of the will at the time of execution. Again, proof of circumstances giving rise to a reasonable suspicion that the will did not truly reflect the testator's intentions may displace the presumption. That will shift the evidentiary burden back to the proponent of the will and require the proponent to establish that the testator knew and approved of the contents of the will in question; Tobin at [46].
34. Mr Blank submitted that the evidence disclosed that the Testator was suffering cognitive impairment, including paranoia about the behaviour of her sons, around the time at which she had made the 2008 Will. A false belief resulting in the exclusion of an expected beneficiary (or an unusual significant reduction in a gift to that person) under a will could indicate testamentary incapacity; Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, see also Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328.
35. Mr Blank submitted that the evidence of Donald and Alistair here raises doubts as to the Testator's capacity when she made the 2008 Will, and also as to whether the 2008 Will was made with her full knowledge and approval. Mr Blank pointed to the involvement of Lesley in the making of the will as raising suspicious circumstances which will require the Court to embark on the exercise described in Tobin.
36. In making the determinations as to the capacity of the Testator and as to whether she truly knew and approved of the contents of the 2008 Will, the evidence of Ms Moutrage will be critical. Mr Blank pointed to the apparent inconsistencies between that evidence and the evidence of Alistair. Mr Blank said that Ms Moutrage will be required for cross-examination. Much will depend upon her credit, particularly in circumstances where there is, apparently, no documentary record of the interactions leading to the signing of the Will on 21 May 2008.
37. In pressing the application for a restraint order against Ms Moutrage (and her firm), Mr Blank relies on the decision of Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 (Kallinicos). I will return to that case in my consideration of the application.
38. Mr Crispin, counsel for the respondent, raised the issue of the timing of the application. Mr Crispin submitted that the application for probate had been made on 4 June 2018, however due Alistair's unwillingness to act as executor, it was not until 7 December 2018 that leave was granted for Lesley to apply for probate. There was then a delay until 20 June 2019 when a caveat was filed by Philip seeking to prevent the distribution of the estate. On 15 July 2019, Lesley filed an application for the removal of the caveat. That application was set down for hearing before me on 8 October 2019. At the hearing, upon an undertaking given by Lesley to preserve the assets of the estate, I ordered the removal of the caveat. On that occasion, I also granted leave for the filing in Court of the Application in Proceeding which had been lodged by Philip on 4 October 2019.
39. It is submitted that the application to restrain Ms Moutrage, if it was to be made, should have been made in late 2018 before Probate was granted, and not at a time when the evidence in the substantive matter has been filed and it is ready for hearing.
40. In relation to the evidence of Alistair of the meeting attended by Ms Moutrage, Lesley, the Testator and others (that is, the third meeting Alistair attended outlined at [28]-[30] above), Mr Crispin says that no criticism should be made of Ms Moutrage for failing to remember that meeting. It was a long time ago. Moreover, the conversation related at para 39 of Alistair's affidavit (Exhibit "A5") suggests that Ms Moutrage and Judith had known each other for a long time, not that Ms Moutrage and Lesley had a pre-existing relationship.
41. Mr Crispin also submitted that reputational harm was unlikely to arise from Ms Moutrage's assessment of the Testator's capacity, particularly in the light of the evidence as to the latter's ability to present herself as an astute person (see [24] above). Overall, Mr Crispin argued, the outcome of the substantive litigation did not depend to any great extent on the evidence of Ms Moutrage. He pointed to the fact that the Tribunal had examined the allegations made by Donald and on 4 August 2009 and ruled against his application for the appointment of a Guardian and a Manager. The Testator herself gave evidence in those proceedings.
42. Mr Crispin also pointed to the fact that the Testator had expressed the wish in her 2008 Will for RMA to act as solicitors for the estate, and that Lesley clearly wished the firm to act for her in the litigation. He also suggested that there was a real risk that a change in solicitors at this stage of the proceeding could lead to a delay in the hearing, and possibly the recasting of the Executor's case.
43. Mr Blank noted that his instructor had only come into the matter in March 2019 and that he had been agitating concerns about the position of Ms Moutrage from that time. Mr Blank submitted that it was necessary to gather the evidence before an application could be made.
44. In relation to delay, Mr Blank argued that any further delay should be manageable, particularly given that a hearing date had not yet been allocated.
45. Counsel for the parties were agreed that the hearing would take somewhere between 3 and 5 days.
46. I return to the case of Kallinicos. In that matter, Mr Kallinicos was seeking an order that a solicitor, Mr Moloney, who had previously acted for a company controlled by the parties, be restrained from acting for the defendants. The basis for the application was said to be the inherent jurisdiction of the Court to preserve the proper administration of justice. The reason it was inappropriate for Mr Moloney to continue acting was that he would be an important witness as to questionable transactions which had occurred at a time when the partnership or joint venture arrangements between the parties had come to an end.
47. After carrying out a comprehensive review of the authorities Brereton J, at para 76 of his reasons for decision, distilled eight principles relating to applications to restrain a solicitor from acting for another party. His Honour listed them by dot point. The first three are not relevant here. For convenience I will refer to them as sub-paragraph numbers (4)-(8) and omit the case references:
(4) ... the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice...
(5) The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice...
(6) The jurisdiction is to be regarded as exceptional and is to be exercised with caution...
(7) Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause...
(8) The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief...
48. After referring to the particular circumstances of Mr Moloney's involvement in the impugned transactions his Honour said:
[84] Accordingly, in my opinion, Mr Moloney will be a material witness on issues of substance which appear to be controversial and in respect of which questions of credibility and integrity (not necessarily his own) are likely to arise.
[87] It is generally undesirable for a practitioner who is aware that he is likely to be called as a witness, other than in relation to formal or non-contentious issues, to continue to act. If a practitioner's credibility is at stake as a witness, his personal integrity may be put in issue and that may constitute a personal interest inconsistent with the practitioner's duty to the court or to the client.
50. Ultimately, his Honour concluded that having regard to the relevant discretionary factors it was appropriate to restrain Mr Moloney from acting as solicitor for the defendants.
51. The statement of principles by Brereton J in Kallinicos has been quoted with approval in numerous decisions including, in this Court, Birkett Investments P/L v Streatfield Investments Pty Ltd [2016] ACTSC 323. I approach the exercise of discretion required here by reference to those principles.
52. The starting point here is the analysis of the nature and importance of the evidence to be given by Ms Moutrage. I do not accept the submission made by Mr Crispin that her evidence is not particularly important in the determination of the validity of the 2008 Will. On the contrary, it seems to me that in circumstances where disappointed beneficiaries raise real issues as to a testator's capacity and as to his/her knowledge and approval of the contents of the will, the evidence of the solicitor who took instructions and witnessed the will is likely to be crucial. This is particularly so where the will was made many years before the time at which its validity must be determined. A good example of this is the case of Drivas v Jakopovic [2019] NSWCA 218 in which the NSW Court of Appeal upheld the decision of the trial judge preferring the evidence of the testator's solicitor over that of the expert medical witnesses. In the course of his judgment McFarlan JA (Bell ACJ and McCallum JA agreeing) said:
[52] ...I consider that the primary judge was correct to place significant weight on Mr Taylor's evidence. Mr Taylor was a solicitor of considerable experience, including in dealing with elderly clients and their testamentary wishes. As Young J indicated in Re Crooks Estate (14 December 1994, unreported, at 29), such evidence is valuable evidence of testamentary capacity because:
"[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic]."
53. The detailed account given by Ms Moutrage of the conference with the Testator on 14 May 2008 is powerful evidence that the Testator met the requirements of the Banks v Goodfellows test. It is clear that the applicants wishing to challenge the 2008 Will must mount a significant attack on the reliability of Ms Moutrage's evidence. Part of this attack will be based on the evidence of Alistair as to the "third meeting". It seems inevitable that the attack on Ms Moutrage's reliability will involve a challenge to her credibility, particularly if, as seems to be the case, there are no file records available as to the events in May 2008.
54. I am not satisfied that the evidence of the decision of the Tribunal renders the events surrounding the making of the 2008 Will somehow of less importance. As I indicated to counsel during submissions, it is certainly possible for an elderly person (particularly if he or she is suffering the onset of dementia) to move in and out of states of confusion. The delay between May 2008 and the Tribunal decision in August 2009 is significant in that regard.
55. I accept that the evidence of Dr Craft (her 30 April 2008 letter) is strong support for the proposition that the Testator had testamentary capacity at the time of making the 2008 Will. However, it will be the evidence of Ms Moutrage which will be critical in the determination of whether the Testator knew and approved of the contents of the specific will in question.
56. Against this background, it does seem to me that continuing to act for the Executor will place Ms Moutrage in the situation where she will be testifying in circumstances where she owes an obligation of loyalty to Lesley, at the same time having an interest in defending her own conduct and credibility, and discharging her obligations as an officer of the Court. While these conflicts cannot be totally resolved it seems to me that they would be greatly lessened if Ms Moutrage was giving evidence other than as the solicitor for the Executor in the litigation in which that evidence is relied upon to support the validity of the will.
57. In my view, fair-minded and reasonably informed members of the public would conclude that the due administration of justice, including the appearance of the process, would require that Ms Moutrage should, in the circumstances of this case, be prevented from continuing to act as the solicitor for the Executor in this litigation.
58. I am conscious of the exceptional nature of the jurisdiction and the need for caution. However, I take into account the particular circumstances of this case and the need for the Court to be able to rely to the greatest extent possible on the independent evidence of the solicitor who took instructions from the Testator, and who drew and witnessed the making of the Testator's will. A member of the public observing the cross-examination of a solicitor for the Executor as a critical witness in the case in relation to controversial matters would in my view have an understandable sense of disquiet in relation to the integrity of the judicial process.
59. Weight must also be given to the public interest in the Executor being able to take the case to hearing with the solicitor of her choice. That is undoubtedly an important factor weighing against a restraint order.
60. In relation to the timing of the application, I accept that it should have been made earlier. However, there is force in the explanation provided by Mr Blank. It is also significant that Philip's solicitors had raised concerns about Ms Moutrage's position from March 2019 and continued to do so in the context of trying to obtain information about the relationship between the Testator and Ms Moutrage, and the circumstances under which the 2008 Will was drawn and made. It does not seem to me that the delay in bringing the application weighs heavily against making a restraint order in the circumstances of this case.
61. As to the potential for delaying the hearing, I am persuaded that the case can be managed to minimise the prejudice to the parties. The reality is that the matter would have been unlikely to obtain a hearing date for many months in any event. I do not see this as a significant factor.
62. I should indicate that in the course of submissions reference was made to rule 27.2 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT). That rule provides:
In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.
63. It seems to me that this rule is entirely consistent with the principles taken from Kallinicos which I have applied here.
64. I am satisfied that the particular importance of the evidence of Ms Moutrage in this case and the nature of the challenge which will be made to that evidence requires the Court to take the exceptional course of overriding the Executor's choice of solicitor for the litigation in relation to the 2008 Will. For the reasons given above I do not see the relevant discretionary considerations as requiring a different conclusion.
65. I propose to order that Ms Mona Moutrage and her firm, RMA, be restrained from acting for the Executor in the current litigation. In the course of submissions Mr Crispin raised the possibility of administrative difficulties in the transfer of the file and the prospect that the Executor might be left unrepresented for a time. I propose to order a stay of proceedings for a period to allow the Executor to instruct alternative solicitors for the litigation. I will relist the matter for directions at the end of that period to determine what needs to be done before listing it for hearing.
66. In relation to the issue of costs, it seems to me that the full implications of the restraint order will not be clear until the matter has been heard and determined. Therefore, the appropriate course is to reserve the costs relating to the Restraint Application, and the consequences of the restraint order, for determination by the trial judge.
(1) Ms Mona Moutrage and Ray Swift Moutrage & Associates are restrained from acting for Lesley Ann Garrett-Jones as Executor of the Estate of the late Shirley Eileen Kendall in relation to the Application in Proceeding filed in this Court by Richard Philip Kendall on 8 October 2019.
(2) Proceedings in the Application in Proceedings referred to in Order (1) are stayed until further order.
(4) The proceedings are listed for directions at 9:30 AM on Thursday 12 March 2020.
I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.
Banks
Goodfellow
(1942) 66 CLR 295
(2005) 64 NSWLR 561