SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE
– REMOVAL AND DISCHARGE – GENERALLY – where
the first
applicant is the trustee of the second respondent’s bankrupt estate
Source
Original judgment source is linked above.
Catchwords
SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE– REMOVAL AND DISCHARGE – GENERALLY – wherethe firstapplicant is the trustee of the second respondent’s bankrupt estate– where the bankrupt is the executorof a deceased’s estate– where the applicants apply for an order that there be a revocation ofthe grant of probate issuedto the first respondent – where theadministration of the estate has been on foot for approximately 6 years –whetherthe fact of the second respondent’s bankruptcy makes herunsuitable to act as executor and liable to be removed – whethersuch anorder ought to be madeSuccession Act 1981 (Qld), s 6TrustsAct 1973 (Qld), s 80Baldwin v Greenland [2006] QCA 293[2007] 1 Qd R117
Bainbridge v Blair [1839] EngR 728
(1839) 48 ER 1032
Budulica v Budulica
[2017] QSC 60
Miller v Cameron [1936] HCA 13
(1936) 54 CLR 572
Storry v
Clout [2024] FCA 1274
Storry v Parkyn [2024] FCAFC 100
(2024) 304 FCR
318
Storry, in the matter of Storry [2025] FCA 231
Judgment (24 paragraphs)
[1]
[1] The first applicant is the trustee of the second respondent's bankrupt estate; he was appointed by order of Egan J of the Federal Circuit Court on 18 March 2022.
[2] The bankrupt second respondent, VenetiaStorry, is one of three surviving children of the late John Anthony Storry (the deceased) who died on 31 August 2018. The other surviving children are the third respondent, Amber Storry, and another daughter, not a party to these proceedings, Sweden Jade Harley.
[3] Venetia Storry is also the executor of the estate of the deceased as the first respondent.
[4] This is an application by the trustee of a bankrupt's estate for an order that there be a revocation of the grant of probate issued to the first respondent on 25 March 2019.
[5] The matter came on for hearing in applications court on 19 August 2025 and, for reasons which are set out below, it was agreed that the resolution of the application would be deferred for a period of time in the event that a related proceeding in the Federal Court might have some impact on the resolution of this application. That related proceeding in the Federal Court having not yet been determined, and three months having passed since the hearing of the application, the application falls to be determined on the current state of the proceedings.
[6] The deceased left a will dated 13 December 2016 which appointed Venetia Storry as the executor of his estate. By the will, Venetia Storry was gifted a two-third share of the deceased's right, title and interest in a property situated at 145 Broseley Road, Toowong in the State of Queensland. She was also given the right to purchase the remaining portions of the property from her sisters Amber and Sweden. Additionally, Venetia Storry was given a one-third share as tenant-in-common of the residuary estate.
[7] Amber was gifted the deceased's motor vehicle, a one-sixth share of the deceased's right, title and interest in the Broseley Road property and a one-third share as tenant-in-common of the residuary estate. But for the gift of the motor vehicle, Sweden's beneficial interest under the will was the same as her sister Amber, a one-sixth share of the Broseley Road property and a one-third share as tenant-in-common of the residuary estate.
[8] On 30 September 2019, the Broseley Road property was transmitted to Venetia Storry as executor of the deceased's estate.
[9] The first applicant says that Venetia Storry and Amber have been living at the Broseley Road property since the deceased's death, although the evidence on this point is not clear.
[10] By virtue of the sequestration order and the appointment of the first applicant as the trustee of the bankrupt estate, Venetia Storry's beneficial entitlement in the deceased's estate vests in the first applicant in his capacity as her trustee in bankruptcy.[1] The first applicant therefore has the duty to realise Venetia Storry's inheritance from the deceased's estate so as to administer the bankrupt's estate for the benefit of creditors.
[11] Venetia Storry opposes the application and seeks to have it dismissed as an abuse of process or otherwise to stay the proceeding.
[12] Venetia Storry has a well-recorded history of litigation in the Federal Court of Australia. In Storry v Parkyn,[2] the Full Court of the Federal Court made orders declaring Venetia Storry a vexatious litigant. The decision sets out a table of 24 proceedings which had been brought by her and in respect of which the relief she sought had been dismissed or denied.[3] It is unnecessary for me to set those matters out at any length. Suffice to say that the Full Court of the Federal Court of Australia recognised the effect which an order of that nature had in restricting a person's access to the court, describing that such an order would not be made lightly given that it is exceptional and serious relief, however the court described that the case was not one "at the margins" and that several factors compelled the making of a vexatious proceedings orders including:
[2]
"73 First, we recognise that as an undischarged bankrupt there are already fetters on Ms Storry's ability to commence most types of proceedings but, in this case, the fact that Ms Storry is an undischarged bankrupt does not militate against making the order. Indeed, the contrary is true. As is evident from the above, Ms Storry's bankruptcy has not stopped her commencing non-exempt proceedings notwithstanding all her property is vested in her trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act.
[3]
Secondly, and most importantly, the present circumstances represent a clear example of where the Court must act to protect itself from the expense, burden, and inconvenience of baseless and repetitious proceedings instituted by Ms Storry. Ms Storry has had plenty of days in Court, but she is not entitled to another person's day in Court to pursue quixotic and misconceived complaints. We are amply satisfied a vexatious proceedings order in this case is reasonably necessary to protect Court resources so that they are available to other litigants.
Thirdly, as is evident from the submissions summarised in Section E above, Ms Storry's arguments are replete with irrelevancies and misconceptions rendering them difficult to follow, and trying to understand them and make them comprehensible causes considerable Court time to be consumed and directed to no useful end."
[4]
[13] In addition to the proceedings identified in that judgment, there was a further proceeding commenced by Venetia Storry on 26 October 2023 in the Federal Court of Australia, in which she sought Mr Clout's removal as her trustee in bankruptcy. That application was dismissed by Justice Rangiah in the Federal Court on 7 November 2024. His Honour then observed that there was no reasonable chance that Venetia Storry would be successful in her substantive application to remove Mr Clout.[4]
[14] The above is by way of background only, and to explain, in part, the delay in Mr Clout completing his duties as the trustee in bankruptcy.
(1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.
[7]
(2) The court may in its discretion grant probate of the will or letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere or that the person to whom the grant is made is not resident or domiciled in Queensland.
[8]
(3) A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.
[9]
(4) Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973.
[10]
(5) This section applies whether the death has occurred before or after the commencement of this Act."
[11]
[16] The jurisdiction also arises under s 80 of the Trusts Act 1973 (Qld) and in the court's inherent jurisdiction. Accordingly, the court has extremely wide powers under s 6, which powers include the power to make any order in relation to the administration of the property in a deceased estate in which the court could likewise make orders in relation to the administration of a trust under the Trusts Act 1973 (Qld).
[17] In Baldwin v Greenland,[5] the Court of Appeal observed that the jurisdiction, both statutory and inherent, to remove a duly appointed executor is a supervisory and a protective one.[6] Whilst it is always appropriate and necessary for the court to have regard to the person who the testator identified to be the executor and trustee, the overriding object of the power nevertheless remains the due and proper administration of the estate.
[18] As a bankrupt, Venetia Storry is unfit to act as the executor of her father's estate.[7] Indeed, an executor or trustee who becomes a bankrupt ought to be removed "almost as of course".[8] That is enough to make the orders sought.
[19] While the stage of the administration is also a relevant consideration,[9] here, it is much less so. The deceased died on 31 August 2018. The property was transmitted into the name of Venetia Storry as personal representative on 30 September 2019. The property has not been transmitted pursuant to the beneficial entitlements under the will, that is, two-thirds to Venetia and one-sixth each to her sisters Amber and Sweden.
[20] The property has an estimated value in the range of $1.43 million to $2.24 million. The evidence before me is unclear as to whether outgoings have been paid on the property, or by whom, nor whether any provision has been made to the estate for occupation rent by either of the tenants.
[12]
(a) an allegation that Mr Clout misled the Federal Court (in an unparticularised way) resulting in the making of the Vexatious Litigant Order;
(b) an unparticularised allegation that Mr Clout's conduct in various aspects of other proceedings in the District Court, and elsewhere have caused or contributed to the making of the sequestration order; and
(c) an unparticularised allegation that Mr Clout is unnecessarily incurring costs in the proceedings.
[13]
[27] It may be thought by Ms Storry that this is an oversimplification of the submissions which she wishes to make, but I find myself in the same position as the Full Court of the Federal Court did in the Vexatious Proceedings application where it seems to me that Ms Storry's arguments are replete with irrelevancies and misconceptions rendering them difficult to follow, and try to understand them and make them comprehensible causes considerable court time to be consumed, directed to no useful end.
[28] Counsel for Mr Clout submits that the material demonstrates Mr Clout's extensive experience and his appropriateness for the role, and further submits that his appointment carries with it practical consequences which will avoid the duplication of fees by having the dual roles as trustee in bankruptcy and trustee of the estate discharged by the same person and associated assistants and advisors.
[29] Whilst I am satisfied on the evidence that Mr Clout's experience and expertise makes him appropriate for the role of executor of the deceased's estate, such an appointment places him in a position of potential conflict. His duties to the creditors of the bankrupt estate might well suggest the sale and realisation of the bankrupt's share of the deceased's property, but his duties to the beneficiaries of the deceased's estate, some of whom might seek to remain in the property (Amber) and others of whom might benefit from the property's sale (Sweden), places him in a position of conflict which ought to be avoided if possible. It is no answer to the conflict that he undertakes to take appropriate and necessary professional steps to seek the direction of the court where required. In my view, he simply cannot fairly represent these disparate interests, and certainly cannot fairly represent them in the context of the history of this particular matter.
[30] It was submitted by counsel on behalf of Mr Clout that if the court considered that Mr Clout's appointment were not thought appropriate because of a potential conflict of his duties in the two roles, Mr Clout could be appointed in his personal capacity (wherein he was named as the second applicant) so as to avoid the conflict. This latter argument can be dealt with efficiently. If Mr Clout has a conflict of duty and interest, the conflict is not solved by naming him in a different capacity. The submission can be safely put to one side.
[14]
(a) The first applicant file and serve all material for the appointment of an independent administrator to the estate of John Anthony Storry (deceased), including a proposed draft order, by 26 November 2025;
(b) The parties file and serve an outline in respect of costs by 26 November 2025, such outline to be not more than two pages in length.
[12] This is the matter upon which I delayed giving this judgment, see [5] above.
Parties
Applicant/Plaintiff:
Clout
Respondent/Defendant:
Storry [2025] QSC 311
Cases Cited (2)
(1936) 54 CLR 572
(2024) 304 FCR 318
[21] Even were that not the case, the due and proper administration of the deceased's estate cannot be served by allowing a bankrupt to remain as the executor.
[22] Against that proposition, Ms Storry raises a number of submissions. Key amongst them is that she has made (she says) an application to set aside the sequestration order and to remove Mr Clout as her trustee in bankruptcy. In light of the Vexatious Proceedings Order made in 2024, it seems most unlikely that such application carries any prospects of success. Secondly, that application was effectively heard and determined by Rangiah J on 7 November 2024,[10] when his Honour granted summary dismissal of Ms Storry's application that Mr Clout be removed and pay Ms Storry damages for alleged breaches of duty.
[23] That decision was not appealed. Ms Storry did however make an application for leave of the Federal Court to file a stay application pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth), and to set aside Rangiah J's decision. O'Sullivan J determined that application on the papers, and ordered that such leave was refused. His Honour described her then application as "completely without merit" and "demonstrably vexatious...obviously untenable or manifestly groundless as to be utterly hopeless."[11] Ms Storry has filed an application for leave to set aside Justice O'Sullivan's order, and that is yet to be determined.[12]
[24] I have no difficulty in reaching the conclusion that the first respondent ought to be removed as executor of her father's estate, on the basis that it is inappropriate for a bankrupt to act as personal representative of an estate.
[25] That leads to the question of who ought to be appointed to that role. Mr Clout offers himself as the replacement executor.
[26] Venetia Storry complains that Mr Clout is not a suitable person to hold a grant in respect of her father's estate. Her submissions in relation to this issue are convoluted and difficult to understand, but seem to include:
[31] In the circumstances, whilst I propose to make the orders for the removal of Ms Storry as the executor of her father's estate, I am going to refrain from making those orders until such time as the applicant obtains the agreement of an independent person to act as the administrator of the deceased's estate, accompanied by the necessary affidavits and consents. The disposition of final orders therefore will follow after the first applicant has had seven days, or such further time as he may reasonably require, to locate an independent person to act as administrator of the estate. Having regard to the way in which the matter has proceeded, that person ought to be a properly qualified solicitor.
[32] The applicant is directed to provide a draft form of order, supported by the consent of an appropriately qualified solicitor, within seven days of these reasons.
[33] I will hear the parties as to costs in accordance with the directions below.