Chick v Grosfeld

Plaintiffs' allegations 12The plantiffs alleged that Mr Grosfeld is incapable or unwilling to act in the interests of the estate and had mismanaged the affairs of the estate. The particulars of that allegation were that: a) Mr Grosfeld failed to provide information sought by the plaintiffs in respect of the estate, or, where he had responded, had given only a partial and dilatory response; b) Mr Grosfeld was paid "commission" (sic) from the estate in excess of amounts set out in the invoices issued by him to the estate; he was paid for work done "in futuro"; the invoices he issued lacked particularity; and the amounts paid did not correspond with the invoices; c) the amounts charged to the estate by Mr Grosfeld were excessive; d) Mr Grosfeld failed to comply with orders of the court as to the filing of an affidavit verifying his accounts and providing particulars of work done, failed to comply with the court's orders regarding access to the records of the estate to the plaintiffs and their representatives, and failed to respond properly to three letters from the plaintiffs' solicitors in accordance with orders made on 23 February 2011; e) Mr Grosfeld failed to comply with an order regarding access to the file of a former solicitor for the estate, Mr Hall, and failed to comply with a notice to produce; f) Mr Grosfeld failed to respond to affidavits of Murray Chick and had liquidated non-real property assets of the estate for the purpose of paying commission (sic) to himself and legal and other fees without any resulting benefit to the estate or the beneficiaries; and g) Mr Grosfeld had repeatedly failed to pay debts of the estate and had incurred interest and charges as a result of his failure to do so. 13The plaintiffs also alleged that Mr Grosfeld had been dilatory in the administration of the affairs of the estate. The particulars of that allegation in the points of claim were that he failed to pay the legacy owing to Mrs Fitzpatrick as a result of which interest and costs were incurred, and had failed promptly to seek approval from the beneficiaries, or to make an appropriate application to the court. It was also said that he had failed to lodge tax returns promptly. In affidavits on which the plaintiffs relied the allegation of delay was extended to Mr Grosfeld's dealing with the principal asset of the estate, namely the deceased's house at Abbotsford. It was not sold until November 2010. In opening submissions counsel also said that Mr Grosfeld was guilty of delay in not having resolved an issue between the deceased's children as to where the deceased's ashes should be laid to rest. That was not concluded until January 2012. 14The points of claim also alleged that Mr Grosfeld had sought an indemnity from the beneficiaries to which he was not entitled, that he had sought to enter into a business arrangement with Mr Murray Chick which was inappropriate, that he had transferred ownership of the deceased's Lexus motor vehicle to Jennifer Brown for no consideration, had failed to account for the entirety of the proceeds of sale of the Abbotsford property, had failed properly to defend the family provision proceedings brought by Jennifer Brown and Ian Chick, had caused the deceased's personal belongings to be removed from the Abbotsford property and stored them at the home of Jennifer Brown without the consent of the remaining beneficiaries, and had failed to attend appropriately to the management of his own personal financial affairs by failing to lodge tax returns in time, failing to pay amounts owing to the ATO, and allowing a company of which he was a director and shareholder to go into liquidation.

Defendant's statements of account 15Following the cross-examination of Mr Grosfeld, two further and more serious issues arose. Between 4 August 2009 and 14 January 2010 he transferred $85,040 from the estate bank account with the St George Bank to his working business account. The transfers were made by a series of withdrawals. On 19 and 23 July 2010 Mr Grosfeld's company, Ascent Management Pty Limited, repaid $85,000 to the trust account of his solicitor, Ms Angela Anthony. No interest was paid. 16When probate was granted, the court required that "Accounts showing the Administration of this estate be verified, filed and passed within 12 months from the date of Grant, namely the 05/03/2009". 17On 18 November 2010 Mr Grosfeld filed an affidavit verifying a statement of accounts. This included a statement of receipts and disbursements. The statement disclosed the making of 24 payments between 4 August 2009 and 14 January 2010 totalling $85,040. These were said to have been paid to "Grosfeld Financial Services Trust". The purpose of the payment was described as being "Legal costs AJ Anthony". 18The accounts did not disclose the repayment by Ascent Management of $30,000 on 19 July 2010 and $55,000 on 23 July 2010 to Ms Anthony to be held on behalf of the estate. 19Ms Anthony had not rendered any accounts to the estate at the time the payments to the "Grosfeld Financial Services Trust" were said to have been made. Mr Grosfeld said that there was no such trust. The payments were made to an account in the name of Grosfeld Frawley & Associates. According to the only pages of that account that Mr Grosfeld tendered, that was a trading name for a business carried on by Mr Grosfeld and his wife. 20I infer that the moneys totalling $85,040 withdrawn from the estate account and paid to Mr Grosfeld's "working account" were in turn paid to an account of Ascent Management. I draw that inference from the fact that the repayments in July 2010 are shown in the solicitor's trust account statement to have been received from Ascent Management. 21In 2009 and 2010 Ascent Management was in financial difficulties. On 7 October 2010 the Deputy Commissioner of Taxation filed proceedings in the Federal Court for it to be wound up. The company was wound up in insolvency on 3 December 2010. Mr Grosfeld deposed that the causes of the failure of the company were a cash flow shortage in 2007, a reduction of income due to the global financial crisis and a refusal by the ATO to accept a payment plan to pay a tax debt in full over 2-3 years. 22Mr Grosfeld deposed that his business was partly carried on through that company and partly by himself as a sole trader under the name Grosfeld Financial Services. He now carries on business as a sole trader. 23The use of the estate's funds in this way was a serious breach of Mr Grosfeld's duties as executor. An executor is required to keep the estate's moneys separate from his or her own moneys, just as a trustee cannot mix trust funds with the trustee's own moneys. Counsel for Mr Grosfeld referred to clause 16.1(c) of the will which empowers an executor and trustee to invest and change investments as if he were beneficially entitled. That power does not authorise an executor to mix the estate's moneys with his own. I do not accept Mr Grosfeld's evidence that in doing so he was making a loan to himself on which he would pay interest. No such interest was paid. 24This breach was not a matter identified in the particulars as a ground for removal. It emerged in cross-examination of Mr Grosfeld. During the hearing this breach was raised as a real issue. The fact that it was not the subject of particulars does not mean that the plaintiffs cannot rely on it as a ground for Mr Grosfeld's removal. The ground was litigated and Mr Grosfeld's counsel did not submit that the allegation should not be dealt with. No adjournment was sought. 25In the course of his cross-examination Mr Grosfeld said that he held documents in his office in relation to the payment of estate moneys into his working account, and these included the bank statements for the working account for the periods in which moneys were paid into that account from the estate. He was asked if he was willing to produce the documents the following day without a formal court order. He said that he would do so (T116). No order for the production of the bank statements for the working account was sought or made. Notwithstanding his evidence that he would produce such documents without a court order, Mr Grosfeld failed to do so. I infer that nothing in those bank statements would alleviate the concern that estate moneys were put at risk. 26The second issue that arose during Mr Grosfeld's cross-examination was that although the verified statement of account described the payments of $85,040 as being for the purpose of paying legal costs of AJ Anthony, that was not their purpose. 27The same statement of account showed other disbursements as having been paid to Ms Anthony for legal costs. Ms Anthony has produced her invoices and the trust account statement. The total sums shown on the verified statement of account to have been paid to either Grosfeld Financial Services Trust or Ms Anthony for Ms Anthony's legal costs exceeded the amount charged by and paid to Ms Anthony. Her charges were substantially less than the amounts shown in the statement of account as having been paid to her or to Grosfeld Financial Services Trust for the purpose of paying her legal costs. Thus, in the first statement of account of 18 November 2010 the statement of disbursements for the period from 10 December 2007 to 3 June 2010 showed payments of $85,040 to Grosfeld Financial Services Trust for "legal costs AJ Anthony" and a further $2,500 said to have been paid on 3 June 2010 to AJ Anthony & Associates for the purpose of "legal costs". 28As at 3 June 2010 Ms Anthony had rendered only two invoices: one for disbursements of $201.85, and the other for $9,252.10. Neither had been paid. 29In the second statement of accounts for the period from 10 December 2007 to 9 March 2011 Mr Grosfeld recorded disbursements that included payments to Grosfeld Financial Services Trust of $85,040 for "legal costs AJ Anthony" and a further $66,632.86 as having been paid to AJ Anthony & Associates for legal costs. These sums totalled $151,672.36. To that date, Ms Anthony had rendered invoices totalling $125,561.76. 30The first payments Ms Anthony received were on 19 and 23 July 2010 upon the receipt of funds into her trust account from Ascent Management. On 19 July 2010 $30,000 was paid from her trust account to her office account in payment of fees and disbursements. On 23 July 2010 a further $23,615.40 was transferred for payment of fees and disbursements. These two payments, totalling $53,615.40 were in payment of her accounts of 20 May 2010 and 18 June 2010 that totalled that $53,615.40. Those payments were not disclosed on the statement of disbursements. 31The statement of receipts and disbursements concealed the fact that money had been withdrawn from the estate account to Mr Grosfeld's personal working account and then repaid. This concealment was achieved by wrongly describing the payments out as having been made for the purposes of paying legal costs of AJ Anthony. 32Mr Grosfeld insisted in cross-examination that that was the purpose of the payments. I do not accept that evidence. There was no reason to withdraw money from the estate account to his own personal account in order to pay for legal costs that had not yet been incurred, let alone invoiced. By way of example, in the month of August 2009, $35,500 was transferred to the working account, whereas the costs incurred to Ms Anthony to the end of that month (as subsequently billed) were less than $2,000. 33The evidence on this topic did not emerge with clarity. The waters were muddied by evidence Mr Grosfeld gave in relation to a sum of $52,000 being part of a sum of $60,000 paid to him by the deceased on 9 November 2007 (i.e. before death). Mr Grosfeld had rendered an account to the deceased dated 6 November 2007 for $8,470. He gave evidence that he had a conversation with the deceased prior to rendering the bill in which he had estimated that his bill would amount to approximately $8,000 for work that he had done for the deceased and that the deceased said to him words to the effect "I want to pay you $60,000 because there will be a lot of work for you to do leading up to and in my estate". Mr Grosfeld deposed that he replied saying "OK. Pay my bill and I will invest the balance in the education fund". 34In his oral evidence Mr Grosfeld said: "I rendered my account to Mr Chick for the amount of $8,400 at that time, which was for the year that I attended to his requirements. And he said, "Well, is that all. I want to give you more." I said, "Well, no, I cannot accept it." He said, "Well, take it, because there could be some problems." And I said, "Well, okay then. I regard it as an asset of the estate." And he didn't respond that." Mr Grosfeld also said that he would take the payment as an advance on executor's fees. 35In the inventory of property filed with the application for probate, Mr Grosfeld recorded as an asset of the estate the sum of $52,000 described as "Grosfeld Financial Services - advance payment for fees". 36In the invoices rendered by Mr Grosfeld for his fees for work done in relation to the estate, no credit has been given for the sum of $52,000 (or $51,530). All of Mr Grosfeld's invoices up to 8 January 2011 were paid out of the estate. On 23 February 2011 I made an interlocutory order, the effect of which was to restrain Mr Grosfeld from drawing further moneys for his own remuneration. 37In his oral evidence, Mr Grosfeld said that he had paid the balance of $52,000 back into the trust account of Ms Anthony. He said that he deducted an amount for his outstanding fees of approximately $15,000 before transferring amounts of $35,000 and $55,000 into Ms Anthony's trust account in July, August or September 2010. After this evidence was given, Ms Anthony's trust account statement was produced which records the payments into the trust account of $30,000 and $55,000 in July 2010. 38If any part of these payments were an accounting to the estate of part of a sum of $52,000 that Mr Grosfeld has treated as an estate asset, then there would have been a shortfall in the repayment of the funds taken from the account as payments made to Grosfeld Financial Services Trust. (At one point it was contended that Mr Grosfeld made a further payment of $2,500 to the trust account on 3 June 2010. However, it is clear from the records of the estate bank account for that day that that payment came from the estate account.) 39Mr Grosfeld did not produce an invoice for the sum of approximately $15,000 said to have been his fees deducted from the sum of $52,000. As I have said, all invoices produced were paid from the estate account. 40I do not accept Mr Grosfeld's evidence that any part of the sum of $52,000 has been paid to the estate. However, I accept that all but $40 of the $85,040 paid to his working account, otherwise than in payment of invoices for his own fees, has been repaid. 41In his oral evidence Mr Grosfeld said that he thought he was entitled to invest the estate moneys in such way as he saw fit under the powers given to him by the will and he invested it to earn a rate of interest of ten per cent. In other words, he treated the payments as having been a loan from the estate to himself that carried interest. No such loan was documented and no interest was paid. He did not tell anyone else what he was doing. No such loan was made. Even if it had been made, it would have been in breach of Mr Grosfeld's fiduciary duty, as he would have been placed in a position of conflict between his personal interest and his duty to the beneficiaries. 42The transactions whereby Mr Grosfeld transferred $85,040 to his personal account and his attempted justifications of that conduct, neither of which is credible, raises serious concerns about Mr Grosfeld's fitness to hold the office of executor or trustee. The obfuscation of those transactions in the three statements of account only heightens that concern.

Payment of remuneration 43I will defer the question whether Mr Grosfeld was entitled to any remuneration under clause 18 of the will whilst executorial duties were incomplete or for non-professional services. Whilst the plaintiffs asserted that Mr Grosfeld was liable to repay all fees paid from the estate to him, they did not assert that clause 18 of the will did not authorise payments to Mr Grosfeld at his usual hourly rate of charge for professional work in relation to reasonable work done for the estate as executor. I raised a question about that because there are other beneficiaries who are not parties to these proceedings, including minors. 44It was neither alleged in the statement of claim and particulars, nor suggested to Mr Grosfeld in cross-examination, that he ought not to have paid himself remuneration from the estate because clause 18 of the will did not authorise that course, or because he should first have obtained judicial advice. Mr Grosfeld proceeded on the assumption that he was entitled to charge fees at his ordinary professional hourly rate for executorial work pursuant to clause 18. If that assumption is wrong, so that he is liable to restore to the estate moneys he has received, nonetheless, having regard to how the issues were litigated, that would not justify his removal from office. 45Rather, the complaint in relation to payment of remuneration was that the amounts charged were excessive, were not sufficiently particularised, and mr Grosfeld paid himself in advance of doing the work for which charges were made. It was said that Mr Grosfeld did not comply with orders of the court in relation to providing particulars of the work for which charges were made. Further, the plaintiffs submitted that the evidence adduced from Mr Grosfeld in relation to his charges was not completely frank. 46The payments made to Mr Grosfeld for "executor's fees" were shown in the statements of account filed with the court on 29 November 2010, 10 March 2011, and 28 April 2011. 47On 17 December 2010 I made an order by consent that Mr Grosfeld permit the plaintiffs or their legal or accounting representatives to inspect the financial records of the estate at the offices of the defendant on reasonable notice. I also ordered that by 11 February 2011 Mr Grosfeld file and serve an updating affidavit verifying the accounts of the estate and an affidavit which provided particulars of the work done for which executor fees had been charged and legal costs paid. 48On 23 February 2011 the time for compliance with those orders was extended to 9 March 2011. On that day Mr Grosfeld's solicitor, Ms Anthony, swore an affidavit to which she annexed "copies of the tax invoices and time costing sheets prepared by the executor in respect of his fees". The affidavit substantially complied with the orders requiring the provision of particulars. 49The tax invoices annexed to Ms Anthony's affidavit were dated on the last day of each month from 31 December 2007. The first invoice for $2,871 plus GST was for the "Cost of Executors [sic] Services for the Estate". These were particularised as: "- Phone discussions J Brown

• Emails M Pobe
• Emails J Brown
• Emails M Chick
• Meeting J Brown and I Chick and travel to Abbotsford
• Commence going through information Total 11.5 hours @ $250.00" 50The next invoice dated 31 January 2008 was for $20,500 plus GST. It described the "Cost of Executors [sic] Services for the Estate" as being: "- Property Inspection at Abbotsford
• Clean up at Abbotsford
• Emails to Murray Chick - Many
• Going through estate information
• Phone discussions and emails - M Pobi
• Research family Prov Act.
• Correspondence - D. Hall
• Emails - J Brown - Many
• Number of phone discussions J Brown
• Phone calls North Suburbs Crem
• Emails - re: details unauthorised use of credit cards
• Inventory taking at Abbotsford
• Commence preparations probate application Total 82 hours @ $250.00" 51Mr Chick's solicitor, Mr McAuley, complained that the invoices lacked detail. 52The time costing sheets annexed to Ms Anthony's affidavit provide additional detail. They were entitled "Chick Estate Analysis Executor Activities". They provide brief particulars of work done by Mr Grosfeld and the time taken for that work. 53It emerged in the course of Mr Grosfeld's oral evidence that the documents described as "time costing sheets" were not kept contemporaneously but were prepared by Mr Grosfeld in April of May 2010. Mr Grosfeld said that he prepared the time sheets from diary notes. This was not disclosed in his or Ms Anthony's affidavits. The diary notes were not produced. The invoices were not prepared until about August or September 2010 (T167). 54Pursuant to the order I made on 17 December 2010 documents were made available for inspection by the plaintiffs' representatives on 16 February 2011. Mr Grosfeld did not produce the primary records from which the time sheets were prepared. 55Mr Grosfeld obtained the grant of probate on 5 March 2009. Between 28 April 2009 and 30 July 2009 he made 29 payments to himself in amounts varying between $5,000 and $50, principally in the order of $3,500-$4,500. These payments totalled $107,328.90 (not including a reimbursement of expenses of $3,811.10). At the time of drawing those payments Mr Grosfeld had rendered no invoice and had kept no timesheet, except whatever might be included in the diary notes which he said he had kept but did not produce. The invoices that were later prepared to cover the period from December 2007 to 30 July 2009 totalled $84,833.10. Although the ultimate payments Mr Grosfeld has received from the estate can be reconciled with the total amount ultimately invoiced, Mr Grosfeld withdrew more money ($22,995.80) from the estate up to 31 July 2009 than he would have been entitled to charge the estate to that time (assuming that he was entitled to charge his time for work done in relation to the estate). The number of hours spent on estate matters as recorded in the time sheets up to 31 July 2009 is roughly equivalent to the amounts contained in the invoices that were later prepared in respect of the period up to 31 July 2009. The time sheets do not support payments of $107,328.90 up to 30 July 2009. 56Mr Grosfeld dealt with the topic of advance payments from the estate in an affidavit sworn on 21 June 2011. He provided a reconciliation to show that the total payments received by him totalling $184,205.05 included the reimbursement of expenses of $3,811.10. After two other minor adjustments, Mr Grosfeld showed that the amount received was $179,794.85. The total invoices rendered were $180,594.85. However, Mr Grosfeld provided no explanation for paying himself in advance of doing the work to which the invoices related. 57The facts that Mr Grosfeld withdrew more money from the estate than he was then arguably entitled to, had not prepared invoices at the time the withdrawals were made, and did not produce the diary notes which were said to support the time sheets, leaves me unsatisfied that the time sheets are an accurate record of the time spent. The fact that Mr Grosfeld did not disclose in his affidavits that the time sheets were not prepared until April or May 2010 and that the invoices were not prepared until August or September 2010 also reflects adversely on his credit. The reliability of the time sheets and invoices as an accurate record of the time spent depends on Mr Grosfeld's credit. 58Whether or not the invoices and time sheets accurately disclose the amount of time spent in relation to the estate, the plaintiffs have made good their allegation that Mr Grosfeld paid himself in advance of doing the work for which he later raised invoices. 59I also consider the amounts charged to the estate were excessive even if Mr Grosfeld is entitled under clause 18 of the will to charge $250 per hour plus GST for all the time he spends on estate matters. Mr Grosfeld charged his travelling time. He lived at Terrigal. The real property owned by the deceased was located at Abbotsford. The time sheet records that on 24 January 2008 Mr Grosfeld travelled to the Abbotsford property and in that day did a number of things totalling 15 hours for which he charged 14.25 hours. The time sheet records that on 8 February 2008 Mr Grosfeld spent six hours described as "travel from Terrigal to Abbotsford, property insp. Return medicine to chemist. Collect mail." On 25 February 2008 he recorded five hours described as "Travel Terrigal to Abbotsford and back. Insp. prop. and collect mail." For 11 March 2008 he recorded "Travel Terrigal to Abbotsford and back. Prop and disc strata manager 7 hours charge 6". For 19 March 2008 there is the entry "Travel Terrigal to Abbotsford discuss repair requirements with strata manager. 7 hours. Charge 6". Charging for the repeated visits over a short period to inspect the property, collect mail and discuss matters with the strata manager (which could be done by telephone without travelling) at a cost to the estate of $250 per hour plus GST is excessive. 60The assets of the estate were realised for $2,034,447. Mr Grosfeld received payments on account of his own fees totalling $179,794.85 up to 11 January 2011. On 23 February 2011 I made an order until further order restraining Mr Grosfeld from disbursing estate funds otherwise than in payment of reasonable legal costs and disbursements in connection with the proceedings or in respect of other expenses reasonably incurred in respect of the administration of the estate or liabilities of the estate (other than any liability for executor's fees or remuneration). Up to February 2011 the administration of the estate was still far from complete. At the hearing of the claim for a family provision order on 4 May 2011 Mr Grosfeld's solicitor deposed that to the conclusion of the hearing the fees charged by Mr Grosfeld were estimated to be $219,750. Notwithstanding the difficulties that Mr Grosfeld faced in administering the estate as a result of the conflicts between the deceased's children, this was still an enormous amount of money for an executor to charge. The assets of the estate were not complex. They consisted of a single piece of real estate in Abbotsford, shares in Telstra Corporation and units in MBF Health Fund, a number of investments in pension accounts with financial institutions, money in two bank accounts, cash, a motor vehicle, and personal effects and furniture. 61The estate was not without its complications. Jennifer Brown and Ian Chick filed a caveat against the grant of probate, but subsequently withdrew their challenge to the deceased's will. Mr Grosfeld had to deal with the application made by Jennifer Brown and Ian Chick for family provision orders and by Mrs Fitzpatrick for payment of her legacy. But Mr Grosfeld retained lawyers to deal with those matters. His legal costs of the family provision proceedings up to the date of hearing were said to be $226,000, and that did not include the costs incurred by the solicitors and counsel for Murray Chick and Kimberley Runia for work that was used in the executor's case. Mr Grosfeld charged approximately $177,000 himself for time incurred in connection with those proceedings (although not all of those charges were paid because of the orders made on 23 February 2011). (See Brown & Anor v Grosfeld [2011] NSWSC 1429 at [18].) Mr Grosfeld's purported charges were out of all proportion to the complexity of the family provision proceedings and the issues at stake in those proceedings. 62As noted above at [34] Mr Grosfeld said that he told Mr Chick that he would take the payment of $52,000 as an advance on executor's fees. The payments totalling $179,794.85 up to 11 January 2011 are in addition to the $51,530 received as an advance on executor's remuneration. 63I accept the plaintiffs' allegation that the amounts charged to the estate by Mr Grosfeld were excessive.

Other grounds relied on by the plaintiffs 64The plaintiffs complained that Mr Grosfeld had liquidated non-real property assets of the estate for the purpose of paying what they called "commission" to himself and legal and other fees without resulting benefit to the estate. This is not a legitimate separate head of complaint. Mr Grosfeld was required to collect the assets of the estate. He did so. He was entitled to pay legal fees and other disbursements properly incurred. There was no challenge to the quantum of those expenses. There is an issue as to whether he was entitled to charge remuneration of $250 per hour plus GST for carrying out executorial duties. But for the reasons previously given, it is not a ground of removal of Mr Grosfeld that he may have mistaken his entitlement to claim remuneration under clause 18. If he is entitled to that remuneration then he was entitled to use the estate moneys to pay remuneration for time properly spent on the estate. He was not entitled to pay himself in advance. However that is a separate particular of the complaints. 65The plaintiffs complained that Mr Grosfeld had not complied with orders of the court requiring him to provide particulars of work done, nor orders regarding access to the records of the estate, and had failed to respond properly to letters from the plaintiffs' solicitors in accordance with orders made on 23 February 2011. I do not consider that Mr Grosfeld failed to comply with the order requiring him to file an affidavit providing particulars of the work done. The affidavit of Ms Anthony attaching the invoices and the time sheets satisfied that order. Nor is it established that Mr Grosfeld failed to comply with the order requiring him to provide access to the records or financial records of the estate. The plaintiffs did not point to particular records that were not produced. Mr Grosfeld's diaries were not produced for inspection. He says that they were the documents from which the time sheets were prepared, in many cases long after the work was done. But the plaintiffs have not shown that the diaries were records of the estate. The fact that they are said to contain the information from which Mr Grosfeld was able to prepare the invoices does not mean that they are estate records, as distinct from his personal records. Nor did the plaintiffs demonstrate any particular failure to respond properly to matters raised in the letters from the plaintiffs' solicitors which were the subject of the orders made on 23 February 2011. No submissions were made in support of the complaint that Mr Grosfeld failed to comply with the order regarding access to the file of a former solicitor of the estate or had failed to comply with a notice to produce. 66The plaintiffs complained that Mr Grosfeld failed to provide information requested in correspondence written by the solicitor for the plaintiffs. They complained that he failed to respond to affidavits of Mr Murray Chick. There were delays in providing information sought by Mr Murray Chick. I do not think that the delays were such as would warrant the removal of Mr Grosfeld as executor. Mr Grosfeld was not required to respond to each contention made on behalf of the plaintiffs as to how the estate should be administered. He was faced with conflicting demands. I do not consider that the level of communication from Mr Grosfeld provides a reason for revoking the grant to him. 67Whilst there were delays in the payment of debts, there is no evidence that any delay in paying debts caused any loss to the estate. There may have been some minor interest payments and fees charged, but there was no attempt to quantify these. The plaintiffs complained that Mr Grosfeld was dilatory in lodging tax returns for the estate. Only small refunds were found to be due to the estate. I do not think that the delays in paying debts or lodgement of tax returns would warrant the removal of Mr Grosfeld as executor. 68The plaintiffs complained about how Mr Grosfeld dealt with the family provision proceedings. Part of their complaint was that he did not do enough to investigate and to challenge the claims made by Ian Chick and Jennifer Brown in the family provision proceedings. The plaintiffs' solicitor made numerous requests of the solicitor for Mr Grosfeld as to what steps were being taken in defending the family provision proceedings to which there was no response. They complained that property searches had not been carried out to verify the asset position of Ian Chick and Jennifer Brown, that subpoenas had not been followed up, that all appropriate tax returns had not been provided by Ian Chick and Jennifer Brown and the defendant had not taken steps to obtain them. They also complained that Mr Grosfeld had been dilatory in paying the legacy owed to Mrs Fitzpatrick as a result of which interest and costs were incurred to the detriment of the estate. 69I dealt with the merits of the way with which Mr Grosfeld dealt with Mrs Fitzpatrick's claim to the legacy in a judgment on costs (Fitzpatrick v Grosfeld [2011] NSWSC 1428). I observed that Mrs Fitzpatrick's claim ought to have been resolved by an agreement between the executor and Ian Chick and Jennifer Brown. That is because no-one doubted her claim to a legacy, but Ian Chick and Jennifer Brown had a claim under the Family Provision Act 1982 which might have affected her right to receive the legacy. The possibility was more theoretical than real. As I observed on 6 August 2010, the solicitors for Jennifer Brown and Ian Chick prepared proposed short minutes of order for the consideration by other parties which short minutes provided for Mrs Fitzpatrick to receive her legacy with interest and costs. Mr Grosfeld insisted upon a deed of release being executed that would bind all beneficiaries and that would be approved under s 31 of the Family Provision Act. None of the beneficiaries signed the proposed deed of release. Matters were allowed to rest there, although each of the adult beneficiaries and Mr Grosfeld and Mrs Fitzpatrick were of the same view that her legacy, interest and costs should be paid. The failure to pay the legacy resulted in an additional burden to the estate in terms of additional interest. It may not have resulted in additional costs because Mrs Fitzpatrick ultimately agreed to accept a lump sum costs order that was substantially less than the costs she incurred. In my view, in the absence of releases, Mr Grosfeld ought to have sought judicial advice that he was justified in paying the legacy so as to reduce the interest burden. But there would have been costs of that application and it is not shown that the estate is worse off because he did not do so. In any event, this was not a failure which would warrant his removal as executor. 70So far as the conduct of the family provision proceedings is concerned, I was critical of the amount of costs incurred by Mr Grosfeld, particularly as additional costs were incurred by the solicitors for the present plaintiffs who did some of the work that normally one would expect the executor's solicitors to do. The costs incurred by Mrs Fitzpatrick to her solicitor included the cost of preparing an affidavit read by Mr Grosfeld in the family provision proceedings. However, I found that in defending those proceedings, Mr Grosfeld did not misconduct himself so as to deprive himself of a right to indemnity. I observed that costs allowable on an indemnity basis as between solicitor and client might nonetheless not be recoverable out of the estate on a moderation of the executor's accounts. Mr Grosfeld's accounts have been filed, but not yet moderated. 71The costs incurred in conducting the family provision proceedings were not a separate particular of complaint said to justify Mr Grosfeld's removal as executor. The plaintiffs' submissions in support of the allegation that Mr Grosfeld failed properly to defend the family provision proceedings were that property searches were not carried out to verify the asset position of Ian Chick and Jennifer Brown, that subpoenas were not followed up, and that all appropriate tax returns had not been provided by Ian Chick and Jennifer Brown and the defendant had not taken steps to obtain those returns. So far as appears those matters were attended to before the hearing of those proceedings. My criticism of the conduct of the family provision proceedings is not that the proceedings were insufficiently prepared, but that they were over-prepared, that is to say, that time and costs were spent on matters of little relevance. But I infer that that was due to the insistence of the present plaintiffs. 72I did express the view at the hearing of those proceedings that so far as could be discerned from the evidence adduced at the hearing, the costs incurred by the executor seemed to be out of proportion to the matters raised in defence of the claim brought by Ian Chick and Jennifer Brown. However, that is a matter to be addressed either on an assessment of costs (if a beneficiary requires the executor's costs to be assessed on the indemnity basis) or on a moderation of Mr Grosfeld's accounts. It is not a matter which would justify Mr Grosfeld's removal as executor. 73The deceased's property at Abbotsford was not sold until November 2010, more than 18 months after the grant. That delay was not identified as a particular of the grounds on which the plaintiffs contended that Mr Grosfeld should be removed as executor. As noted earlier in these reasons it was a ground of complaint in the plaintiffs' affidavits and Mr Grosfeld was cross-examined about the delay. The property was submitted for sale by auction in August 2010. The only bid was a vendor's bid for $1.5 million. A valuation was obtained of $1.8 million. The property was sold for $1.85 million on 25 November 2010. Mr Grosfeld reasonably took the view that market conditions were not right for a sale in 2009. Although there was delay in putting the property to auction, I do not accept that that delay disadvantaged the estate. I accept Mr Grosfeld's evidence to the effect that the delay was to the ultimate advantage of the estate, having regard to the then market conditions. The plaintiffs have not established a breach of Mr Grosfeld's duty in relation to the sale of the Abbotsford property. 74A further complaint was that in April 2010 Mr Grosfeld asked Mr Murray Chick if he would like to join a syndicate of Mr Chick's clients to purchase the Abbotsford property. It was submitted that this was improper and placed Mr Grosfeld in a position of conflict between his interest and duty. Mr Grosfeld said that he did not intend forming part of the syndicate, but Murray Chick had told him that he would like to buy the Abbotsford property, but could not afford to do it on his own. Mr Murray Chick rejected the proposal and it did not proceed. 75Mr Murray Chick had expressed an initial interest in buying the property, but later advised that he could not afford to do so. Mr Grosfeld was not in breach of his duty as executor in exploring ways in which a private sale might have been achieved. However, the proposal that a syndicate of his clients and Mr Murray Chick buy the Abbotsford property was fraught with potential difficulties because he would have been faced with a conflict between his duties to his clients on the one hand, and his duties to the beneficiaries of the estate on the other. The potential conflict was between his respective duties, not between his personal interest and his duties. Whether there would have been a sensible possibility of conflict would have depended on whether Mr Grosfeld was acting as a fiduciary for his clients in relation to the proposal. The proposal did not proceed. 76Another of the plaintiffs' complaints was that Mr Grosfeld delivered a Lexus motor vehicle owned by the deceased to Jennifer Brown for no consideration. 77The vehicle had been stored at the Abbotsford property. When the Abbotsford property was sold, it had to be moved. Jennifer Brown claimed that the deceased had given the vehicle to her. The vehicle was unregistered. It had not been moved or started for three years. Mr Grosfeld considered that the vehicle had no value to the estate as it would be costly to have it towed, registered and repaired. Mr Grosfeld was cross-examined as to why he did not take immediate steps to dispose of that vehicle. He said that he knew that the deceased had put the vehicle aside for the benefit of Jennifer Brown. Until that matter was resolved, he wanted to make certain of the position. He did not attempt to replace the battery or to have it recharged. In cross-examination he said that the reason he gave the car to Jennifer Brown was that it had been virtually given to her by the deceased. 78The evidence does not permit the drawing of a conclusion as to whether or not Mr Grosfeld acted in accordance with his duties to all of the beneficiaries in his dealings with the motor vehicle. There was no evidence as to the market value of the vehicle. Whilst Mr Grosfeld did not assert that there had been a completed gift of the vehicle by the deceased during his lifetime to Jennifer Brown, he did understand that it was the deceased's wish that she should have the vehicle. Given his assessment of the value of the vehicle, which has not been impugned, the plaintiffs have not established that Mr Grosfeld was in breach of his duties as executor in allowing Jennifer Brown to take the vehicle. 79Another of the plaintiffs' complaints was that Mr Grosfeld had not properly accounted for all of the proceeds of sale of the Abbotsford property. However, on 8 March 2011 Mr Grosfeld's solicitor provided an account of how the proceeds from settlement of the Abbotsford property were applied. The plaintiffs' complaint was that they were not told how the deposit was applied. Ms Anthony's letter of 8 March 2011 also showed how the deposit was applied. It was applied in payment of advertising, agent's commission and advertising costs, and the balance was paid to her trust account. 80In final submissions both parties rightly concentrated on the evidence concerning Mr Grosfeld's financial dealings with the estate and his accounting for them.

Grant should be revoked 81The Court has inherent jurisdiction to revoke a grant of probate. The relevant principles are stated in Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. (See Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 101-102.) Asprey JA said: "... that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P., namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as 'abortive', 'inefficient', 'useless' or 'ineffectual', are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that 'he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration' has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other mattes which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant." 82I am satisfied that Mr Grosfeld has committed breaches of his duty as executor that indicate that he is not a fit and proper person to continue to act as executor or to act as trustee of the trust for the education fund established under the will, and that the estate has been put into jeopardy by reason of those breaches. Those breaches clearly appear and they impel me to that firm conclusion. 83I have found that the transfer of $85,040 from the estate account to Mr Grosfeld's working account was a serious breach of his duties as executor. The moneys were repaid (except for $40). In the meantime they did not attract interest. Mr Grosfeld was required to keep the moneys separate from his own. The fact that his breach was substantially remedied does not excuse it. 84The estate funds were in jeopardy. Mr Grosfeld's personal financial position was and remains precarious. On 14 April 2010 the Deputy Commissioner of Taxation filed a statement of claim in the District Court against Mr Grosfeld claiming a sum of $300,887.97 and interest in respect of amounts withheld by Ascent Management for the purposes of Division 12 in Schedule 1 to the Taxation Administration Act 1953 (Cth). The periods of withholding were alleged to be from 1 April 2005 to 30 November 2009. In respect of certain periods between 1 February 2008 and 30 November 2009 the Commissioner had made estimates of the unpaid amounts of the company's liabilities. The Deputy Commissioner of Taxation obtained default judgment, but it was set aside by consent on 17 June 2010. No defence had been filed. Mr Grosfeld said that he was negotiating with the tax office to try to make an arrangement for payment. He admitted that he was personally responsible for the debt (T130). 85Mr Grosfeld's conduct in drawing moneys on account of remuneration in advance of his doing the work for which invoices were later rendered is conduct of the same kind. I accept that Mr Grosfeld believed that he was entitled to charge the estate his hourly professional rate for his time spent on executorial work. Nonetheless, he withdrew moneys on account of such remuneration in advance of the doing of work for which invoices were later rendered. He had no right to apply the estate funds in that way, even if he was entitled so to charge the estate. 86The breach of duty in relation to the withdrawal of $85,040 is exacerbated because the facts relating to those withdrawals were concealed by the description of the payments contained in Mr Grosfeld's verified statement of account. The payments were described as being made to the Grosfeld Financial Services Trust (something that Mr Grosfeld said did not exist), and were described as being for the purpose of paying legal costs. They were not paid for that purpose. 87These are the most serious matters established against Mr Grosfeld and by themselves require his removal as executor and trustee. I can have no confidence that if Mr Grosfeld remained as trustee of the education fund that he would faithfully execute the trusts. There is a real risk that he would use the trust funds for his own purposes as he has used the estate moneys for his own purposes in the past. In reaching this conclusion as to the risk of future breaches, I also take into account matters going to Mr Grosfeld's credit that emerged in the course of cross-examination. Earlier in these reasons (at [37] and following) I referred to Mr Grosfeld's evidence that he had repaid $52,000 to the trust account of Ms Anthony, being the amount that in the inventory included in the application for probate he had described as being an asset of the estate, being an advance payment for fees. For the reasons I have given I have rejected that evidence. I observed that if the evidence were correct it would mean that $52,000 of the $85,040 withdrawn from the estate would have remained unpaid. I regret that I formed the view that Mr Grosfeld has attempted to obfuscate these matters of accounting in his statement of account and in his oral evidence. 88A further matter going to Mr Grosfeld's credit arose when he was being cross-examined about the late lodgement of tax returns. As part of his explanation for not lodging tax returns until some time in 2011, Mr Grosfeld said that no-one was asking for them to be lodged. That answer led to Mr Grosfeld's giving evidence that he was unaware in June and July 2010 that Mr Chick's solicitor was proposing to commence proceedings against him. He said that he first became aware that Mr Chick or anyone else had sought an order that he file accounts in February or March 2011. He said he did not receive the summons that was filed in August 2010. He said he was unaware that the matter was before the court on 17 December 2010. 89Mr Grosfeld's solicitor, Ms Anthony, gave evidence, which I accept, that on 5 August 2010 she forwarded to Mr Grosfeld an email she had received from Mr Chick's solicitor enclosing the summons, an affidavit of Mr Chick and an affidavit of Mr Azzopardi (Mr Chick's then solicitor). She filed an appearance for Mr Grosfeld on 25 October 2010. She had instructions to do so. Ms Anthony and Mr Lakeman of counsel had foreshadowed to Mr Grosfeld that the proceedings might be commenced before they were instituted (T187-188). 90I am also satisfied that on the commencement of the trusts of the will in favour of the education fund the trust estate would be put in jeopardy by Mr Grosfeld's making excessive charges for his time in relation to the administration of the estate. I have concluded that his payments for his own fees up to 11 January 2011 were excessive (at [59] and [60]). For these reasons I conclude that the grant of probate to Mr Grosfeld should be revoked.

To whom should letters of administration with the will annexed be granted? 91The question then arises to whom a grant of letters of administration with the will annexed should be made. The plaintiffs initially proposed that a trustee company acceptable to the four principal adult beneficiaries, namely Murray Chick, Kimberley Runia, Ian Chick and Jennifer Brown, be appointed as administrator in place of Mr Grosfeld. That application was not pursued. 92On 22 December 2011 Perpetual Trustee Co Limited informed the plaintiffs' solicitor that having conducted their own research into the estate proceedings, it declined to act. Perpetual Trustee Co Limited said: "Based on the value of the estate, the anticipated further legal costs and our role in the administration process, we regrettably do not believe that we are in a position to add value to the administration of the estate". 93The plaintiffs instead sought an order that a Ms Gunawardena be appointed as administrator. She is a chartered accountant without any knowledge of the beneficiaries. But there were no affidavits as to her fitness to be appointed as executor and to be responsible for the administration of the trust for educational purposes in favour of the deceased's grandchildren. There was no evidence that Ms Gunawardena had any previous experience as a trustee or the executor of a will. There was no evidence as to whether she was aware of the ongoing dispute between the beneficiaries, and between them and Mr Grosfeld. 94If Ms Gunawardena were appointed as administrator and trustee, then, at least in her capacity as trustee of the trusts in favour of the grandchildren, she might be entitled to charge professional fees at her hourly rate. That could well consume a good part of the trust fund. There is no evidence that she is willing to be so appointed if she were not entitled to charge her professional hourly rates for all work done. 95In my view the NSW Trustee and Guardian should be appointed as executor and trustee in place of Mr Grosfeld. An employee within that office whose employment is to administer trusts and estates is likely to be less susceptible to the importunings of the deceased's children than a private trustee and should bring a desirable detachment from the family quarrels to the administration of the trust. The trust will also continue for many years; possibly beyond the professional life of an individual trustee. The NSW Trustee and Guardian will be entitled to make charges in accordance with the NSW Trustee and Guardian Act 2009 and the Regulation. It is in the interests of the beneficiaries that a trustee charge on that basis, rather than that a professional trustee assert a right to charge for all work at professional rates. I will order pursuant to s 22 of the NSW Trustee and Guardian Act that a grant of letters of administration with the will annexed be made to the NSW Trustee and Guardian.

Mr Grosfeld's entitlement to remuneration 96Counsel for Mr Grosfeld submitted that questions in relation to the alleged excessive charges and payments for remuneration should be dealt with by the Registrar on the passing of his accounts. As observed earlier in these reasons, no objection was taken by the plaintiffs to Mr Grosfeld's right to charge his hourly fee as an accountant for executorial work. The complaint was that his charges were excessive and should be reviewed pursuant to s 86A of the Probate and Administration Act. If Mr Grosfeld is entitled pursuant to clause 18 of the will to charge $250 per hour plus GST for all executorial work, I agree that the Registrar should determine the reasonableness of his charges on a moderation of his accounts. Although I have concluded that his charges are excessive, I am not in a position to determine what would be a reasonable period of time for Mr Grosfeld to have spent and charged to the estate. I would confer power on the Registrar to determine the application under s 86A of the Probate and Administration Act as part of the moderation. All this assumes Mr Grosfeld's entitlement to charge for all work at his usual professional hourly rate. 97I raised a question as to Mr Grosfeld's entitlement so to charge. The question of construction I raised was as to the meaning to be given to the words in clause 18 "in connection with the trusts in this Will". The administration of the estate is still not complete. Mr Grosfeld does not presently hold any of the assets of the estate on trust for the beneficiaries. He owes fiduciary duties to the beneficiaries which will be enforced in a court of equity as to how he deals with the assets, but no trusts of the will have yet come into existence (Commissioner of Stamp Duties (Qld) v Livingstone [1965] AC 694 at 707-708, 712, 713). I received submissions on that question. 98There is a further question whether clause 18 of the will authorises Mr Grosfeld to charge professional fees for non-professional work. (See Sacks v Gridiger (1990) 22 NSWLR 502 at 515 and cases there cited; and Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported) quoted in R Geddes, C Rowland & P Studdert, Wills, Probate and Administration Law in New South Wales (1996) LBC Information Services 1996 at [86.33].) No submissions were sought on that question, and none has been made by either party. I consider that I need submissions on that question in order to decide the issues concerning Mr Grosfeld's remuneration. 99Counsel for Mr Grosfeld submitted that the adult beneficiaries were estopped from denying Mr Grosfeld's entitlement to charge fees for all work in connection with the administration of the estate at his ordinary hourly rate charged for his professional work as an accountant. Counsel accepted that such an estoppel could not bind infant beneficiaries, but submitted that their entitlement to the education fund could be quarantined. Counsel submitted that much of the executor's time and thus entitlement to charge had arisen from the actions of Jennifer Brown and Ian Chick in the family provision proceedings and from the plaintiffs in these proceedings. 100The question of estoppel need only be decided if I were to find that clause 18 of the will does not entitle Mr Grosfeld to charge on the basis on which he has. If he is so entitled, or the plaintiffs are estopped from contending otherwise, the question of the extent to which Mr Grosfeld has made excessive charges should be determined by the Registrar on the passing of his accounts. 101As indicated at [98] above, there is an additional question that the plaintiffs have not raised, and on which I have not sought submissions to date, but which may affect the interests of the beneficiaries. I expect it would be raised by the Registrar on the application to pass Mr Grosfeld's accounts. It should be addressed before then. The two questions of construction and the submissions concerning estoppel all go to the question of Mr Grosfeld's entitlement to charge remuneration for all work done in relation to the estate at his usual hourly charge for professional work. I will deal with all those questions after receiving submissions on the further question referred to at [98] above. 102For these reasons the grant of probate of 5 March 2009 to Mr Grosfeld should be revoked. A grant of letters of administration with the will annexed should be made to the NSW Trustee and Guardian. 103I adjourn the issues on the summons in relation to Mr Grosfeld's entitlement to remuneration, for further hearing. The parties should provide submissions on the question identified at [98] above. 104I direct the plaintiffs to prepare short minutes of order to give effect to these reasons. I will stand over the proceedings to a date to be fixed. I will then hear further submissions on the question identified at [98] above and on costs. 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: 28 September 2012