SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS –
where the administrator of an estate seeks judicial advice
that he is justified
to bring debts owed by the respondents into hotchpot – where the
Source
Original judgment source is linked above.
Catchwords
SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS –where the administrator of an estate seeks judicial advicethat he is justifiedto bring debts owed by the respondents into hotchpot – where theadministrator seeks judicial advice thathe is justified in not undertaking anyfurther investigations – where the administrator seeks judicial advicethat he is justifiedin finalising the administration of the estate withoutretaining a forensic accountant – where the administrator seeks judicialadvice that he is justified in undertaking the final distributions from theestate – where the first and second respondentsare siblings and childrenof the deceased – where the first respondent was previously theadministrator of the estate –where the second respondent claims that thefirst respondent’s administration of the estate was improper –whether thejudicial advice should be given – whether the costs incurred
by the administrator ought be borne by either of the respondents
as distinct
from the estate
Succession Act 1981 (Qld), s. 6
Corinne Griffin & Co v
Fraser [2024] WASC 264, cited
Loughman v McConnell [2006] QSC 359, cited
Judgment (20 paragraphs)
[1]
SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS - where the administrator of an estate seeks judicial advice that he is justified to bring debts owed by the respondents into hotchpot - where the administrator seeks judicial advice that he is justified in not undertaking any further investigations - where the administrator seeks judicial advice that he is justified in finalising the administration of the estate without retaining a forensic accountant - where the administrator seeks judicial advice that he is justified in undertaking the final distributions from the estate - where the first and second respondents are siblings and children of the deceased - where the first respondent was previously the administrator of the estate - where the second respondent claims that the first respondent's administration of the estate was improper - whether the judicial advice should be given - whether the costs incurred by the administrator ought be borne by either of the respondents as distinct from the estate
[1] This is a proceeding brought before the court concerning the estate of the late Kadica Budulica, who died on the 8th of December 2013, leaving a will dated the 20th of December 2000.
[2] By the will, the deceased appointed her son - who I will refer to, without meaning any disrespect, as Stan - as the executor, and gifted her entire estate to Stan and Ms Budulica, the second respondent - who I will refer to, again with no disrespect, as Sylvia - in equal shares.
[3] The estate has been the subject of extensive litigation for more than 11 years. The litigation between the respondents has been described on previous occasions in this court as "prolific". It includes an estate family provision application; an estate dispute; a Court of Appeal proceeding concerning the family provision matter; directions including the attempted removal of Stan as executor; further directions including the attempted removal of Stan again as executor; a further estate dispute; a civil appeal and directions. There was a third application for the removal of Stan as executor, which was successful on the 12th of May 2023, when Stan was removed as executor and the court appointed a solicitor nominated by the president of the Queensland Law Society as the substitute executor. The applicant in this proceeding, Mr Dalziel, is the person who was nominated and he received letters of administration with the will on the 3rd of July 2023.
[4] This application concerns orders that Mr Dalziel seeks pursuant to section 6 of the Succession Act 1981 (Qld) (Succession Act) to enable him to finalise the administration of the estate of the deceased. He, of course, is independent and has no interest in the estate. He is concerned only with discharging his duties to the estate. The respondents, Stan and Sylvia, the beneficiaries of the estate, are both presently self-represented.
[5] I have mentioned in summary the type of proceedings that have been dealt with by the court concerning the estate to date. There have also been previous applications made by the current administrator. He has previously commenced other court proceedings seeking directions, which with the court has dealt. I will mention for present purposes that the directions previously given by the court include that he did not need to respond to further claims for provision from Sylvia because those claims had been heard and determined. He has previously sought directions about the property at 17 Jamieson Street, Bulimba not forming part of the estate. He has previously sought and obtained directions about an estate asset, a Toyota vehicle, being appropriated to Stan around the 25th of November 2021, at a value of $5,000 in partial satisfaction of Stan's entitlement to the estate. And he has previously sought directions that he did not need to take any further steps to recover chattels of the deceased.
[6]
[17] The amended originating application in this case, as I have identified, seeks relief under section 6 of the Succession Act. The principles to be applied under that very wide section are analogous to those in an application for judicial advice that can be brought by a trustee pursuant to the terms of the Trusts Act1973 (Qld) (Trusts Act). I think that conclusion is properly supported by the decision in Loughman v McConnell[2006] QSC 359 per Justice Atkinson, particularly from paragraphs 7 to 10. I am satisfied that I have the power to give the advice that is sought pursuant to section 6 of the Succession Act. It will, therefore, be necessary for me to consider whether judicial advice in the terms sought by the applicant should be given, whether some different form of advice ought to be given, or no advice given at all.
[18] There will then be an issue about the costs of the proceeding. There is no issue about the applicant recovering his costs on the indemnity basis from the estate. The issue about costs will concern whether the beneficiaries should bear those costs evenly, and whether the second respondent, Sylvia, has any right to indemnity for legal costs she has incurred in relation to this proceeding, albeit she was only represented for a relatively short period of time.
[19] A summary of the principles relevant to judicial advice proceedings under the is conveniently set out in the decision of from paragraphs 28 to 39.
[7]
[22] The primary consideration in the giving of judicial advice is what is in the best interests of the estate. There are some overriding considerations that arise in that respect in this particular case that I will emphasise.
[23] The first is the date of death of the deceased, the 8th of December 2013, now over 11 years ago. There is the fact, as I have summarised, that there have been many disputes between the respondents to this proceeding. There is the fact that legal costs have significantly adversely eroded the available estate to be distributed to the beneficiaries. Next, there is the fact that Sylvia has mostly been unsuccessful in the litigation to date, and that is reflected in the various costs orders that have been made against her in various proceedings. Next, the estate has not been able to be finalised whilst all of these disputes have been ongoing. I note also that the court did see fit to remove Stan as the executor in 2023.
[24] I note that the administrator has carried out extensive independent accounting in relation to the estate, and that the administrator has sought the views of the beneficiaries extensively in relation to alleged issues with the accounting and the alleged misconduct of Stan in his executorship of the estate. I note that where views about those matters conflict between the beneficiaries, the administrator does not have the powers of a Judge to conduct a trial and sometimes in light of conflicting submissions, the administrator will simply have to do the best he can based on the information available. A proper consideration in that respect will include whether further investigations or litigation is anticipated to be commercially viable. I note that the administrator in this case seems to have performed that role as I have described it. That can be seen particularly in court document 23, which is an affidavit of Mr Dalziel affirmed on the 6th of February 2025, at exhibit 1, where the executor has compiled a table of the matters he considered or perceived to still be contentious between the parties. Having sought the beneficiaries' position on them, he expresses what each of their positions are on the competing item, identifies what evidence the beneficiaries have put forward in support of their position and then identifies what he thinks is the proper position and the evidence particularly upon which he relies. So he has done, it appears to me, a thorough job at trying to fairly resolve issues in dispute between the beneficiaries, noting that even at that stage, that list of issues ran to over a hundred and thirty items.
[8]
[31] The first part of the amended originating application seeks advice in relation to whether Stan owes the estate the sum of approximately $35,000 pursuant to certain accounting that was produced. That sum, effectively, comprises two parts. One part has been compromised on by Stan and is no longer in dispute, such that he accepts that he does owe the estate a certain amount of money. I understand the figure to be $2,524.65. That amount, as I understand it, are costs that were incurred in relation to the wake of the deceased. Sylvia has maintained the position that those costs are not payable by the estate. The administrator has accepted that submission in relation to that amount. As I said, insofar as Stan otherwise continues to maintain that they are properly estate costs, he has compromised and agreed that the court can declare that amount owing as a debt by him to the estate.
[32] The balance of approximately $35,000 concerns what I will describe as non-received rent from estate properties. The position of the applicant, as I understand it, as a consequence of exchanges that I had with the applicant's counsel, was to no longer press for that sought declaration, but it is still an issue, of course, that is contentious as between the respondents, so I will rule in relation to it.
[33] Effectively, the estate comprised two different properties, a property that contained a house at Barton Road, Hawthorne, and a property that contained a block of four units at Stuart Street, Bulimba. The units at Stuart Street, Bulimba were rented. Most of them had been subject to long-term rental agreements. At some point early in the administration of the estate, it appears that two of those units became vacant and each of them required some repair work to be undertaken before they could be re-rented to the market.
[34] Stan has put on evidence that demonstrates that he attempted to have people come in and conduct those repairs, but it was difficult to get trades at the time. Eventually, he decided that he would undertake the work himself. He did not charge the estate for his own time in performing the work, but did charge to the estate the various equipment and materials needed for the repairs. But the repairs occurred over some significant period of time, such that the properties were not receiving rental income for an extended period of time.
[35] That was an issue raised in an application that was brought by Sylvia - I think it is the first application to remove Stan as executor. It was part of Sylvia's application that Stan's - what Sylvia described in general terms as - mismanagement of the estate assets meant that rent was not being received and was one of the limbs relied upon to attempt to demonstrate to the court that Stan should be removed as executor.
[9]
[45] The other part of the hotchpot arrangement that the administrator seeks advice in relation to is the debt owing by Sylvia to the estate in the sum of $237,514.95 in relation to costs orders. That is the total of costs that Sylvia has been ordered to pay to the estate. There have been costs assessments in relation to all bar one of the outstanding costs orders. And in respect of that last one, Sylvia's lawyers accepted the quantum of that last costs order.
[46] Sylvia's response to the administrator seeking advice about bringing that debt into account into a hotchpot way is to say that whole wave of litigation has, effectively, arisen because of Stan's misconduct or negligence or conduct in the way that he has administered the estate, and that she ought not be responsible for those costs, and, in fact, Stan ought be responsible for those costs in the adjustment of the estate.
[47] I do not accept that is so. They are costs orders made by the court against Sylvia. They reflect what the court viewed of the particular dispute between the parties at the time. There is no reason for me to go behind the results of those cost orders. It is a debt that is owed by Sylvia to the estate and it ought be taken into account in the final distributions to be made to the beneficiaries.
[10]
Investigations by the administrator into estate expenses
[11]
[48] The next category of expenses, which are contentious, are what I will describe as estate expenses that have been accepted by the administrator as being payable out of the estate, but that Sylvia wishes to contend are not proper estate expenses and should not be paid by the estate.
[49] Whilst the issues have evolved somewhat over time, by the time the matter reached me, the relevant expenses were set out in exhibit PC-1 to the most recent Camilleri affidavit in a table, which identifies 604 items by way of number, a description and an amount that has been accepted by the administrator as an estate expense. There is then listed beside it an exhibit reference number back to exhibit PC-2 of the affidavit of Mr Camilleri, which was affirmed on the 23rd of October 2024.
[50] By reference to that table, I have been able to look at the description of the item and the amount and go to the actual supporting document. And then scattered amongst the various material for some of the items, one can see exchanges between the parties where issues have been raised and further information has been provided about particular items.
[51] I asked Sylvia during the hearing to identify each and every item with which she takes issue so that I can make a determination about it for the purpose of giving advice. I specifically asked her to identify which items she objected to, the grounds for that objection, and asked her to take me to any evidence that she had in support of her submission. I am going to, for the record, read in the numbers of the items that she took objection to from that table.
Further investigations by the administrator into Stan's executorship
[13]
[92] The next part of the advice sought by the administrator then concerns whether the applicant is justified in not undertaking any further investigations into Stan's executorship, or commencing any other proceedings to recover expenses from Stan on behalf of the estate during his appointment as executor.
[93] The history shows that complaints about Stan's conduct have been before the court on a number of occasions now. They resulted in an independent administrator being appointed and an independent solicitor being retained by that administrator. A comprehensive review of the estate accounting has been carried out by those persons. It is explained in detail in the first affidavit of Mr Camilleri.
[94] I am satisfied that the administrator and the solicitors have spent a lot of time getting the views of the beneficiaries and making inquiries that are reasonable in the circumstances. As far as they have carried out their investigations, they are satisfied that the accounting that they have now done is accurate.
[14]
Retainer by the administrator of a forensic accountant
[15]
[95] One of the further investigations about Stan's executorship that Sylvia submits for is the retainer of a forensic accountant to go through the accounts. There is evidence put on by the administrator that that would cost in the order of somewhere between $25,000 and $30,000. In circumstances where there has already been an independent review, I agree with the administrator's conclusion that the appointment of a forensic accountant or any further investigations would likely not be commercial for the estate, and any further delay would be undesirable.
[96] That is particularly emphasised in circumstances now where not only has there been that comprehensive review independently, but I, myself, have gone through all of the items and the evidence of the items in relation to each of those items objected to by Sylvia. The only matter in respect of which I would not be prepared to give advice that it should properly be viewed as estate expenses are the costs relating to the vehicle after, say, about a year from the date of death.
[97] But otherwise, on the face of it, it is very difficult for me to see that there would be any benefit to the estate in the administrator taking any of those further steps that Sylvia would like him to take. As I emphasised at the beginning, ultimately my primary consideration, in giving the judicial advice, is what is in the best interests of the estate, and I cannot see that the incursion of further expenses or any further delay in the finalisation of this estate would, in fact, be in the interests of the estate.
[16]
[98] It is appropriate that I give advice that the applicant will be justified in making final distributions from the estate, taking into account the matters that I have mentioned, including the hotchpot amounts that I have dealt with and, of course, any tax, legal or accounting fees required to finalise the administration of the estate. So, in terms of the draft order, it will just require a carve out in relation to those car expenses, for which I am not prepared to give the advice sought.
[17]
[99] I indicated at the beginning of my reasons that a cost issue would arise and that there would be two parts to it. There is no issue that the administrator is entitled to his costs of the proceeding on the indemnity basis from the estate. The two issues that arise for consideration and determination are whether those costs of the administrator, because of the conduct of either of the respondents, ought to be borne by either of those beneficiaries, other than just by the estate, which will result in them sharing those costs 50/50. That is the first issue.
[100] The second issue concerns the fact that Sylvia has presented invoices to the court relating to the costs that she had incurred in relation to this proceeding. It looks like, on the face of the material that is now exhibit 7, Sylvia, in respect of this proceeding, has incurred legal costs in the amount of about $8,745, and there is some short description of what work that relates to. It basically appears to have been incurred over a very short period of time, from about the 24th of February through to only the 28th of February 2025. That corresponds with what I mentioned about Sylvia having legal representation at the review that I heard at the end of February. Sylvia seeks those costs to be paid by Stan.
[101] I summarise what the position of the parties is in relation to all of those costs.
[102] In respect of the administrator's costs, the submission made by the administrator is neutral. They are, of course, only interested in recovering the amounts from the estate. Beyond that, it is not their issue for concern. Stan makes a submission that those costs ought to be borne solely by Sylvia on the basis that this is really just a re-agitation of issues that have already been resolved and are costs that are otherwise unnecessarily incurred as a consequence of Sylvia's actions. Sylvia, on the other hand, says that the administrator's costs should be wholly borne by Stan on the basis that she sees his conduct as the cause of all of the disputes that have come before the court, and that would be the only fair outcome.
[103] In respect of the costs that Sylvia has incurred, the estate's position is, whilst, beneficiaries, where an administrator seeks advice from the court, can be expected in the ordinary case to obtain legal representation and have those reasonable costs paid by the estate, in this particular circumstance, it is plain that any work performed by those solicitors has not contributed to the resolution of the proceeding, or any narrowing of issues, and has not assisted the court in any way. That I would agree with. The administrator's position is therefore that Sylvia ought bear her own costs in that respect. Stan's position is that, likewise, Sylvia should bear her own costs for the same reason that he says that she should bear the administrator's costs. Sylvia's position is that she should recover those costs, not just from the estate, but, again, from Stan on the basis that that he is the cause of all of this litigation.
[18]
(a) Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in distributing the estate of Kadica Budulica, also known as Kaja Budulica and Kata Budulica (the 'Deceased') by bringing into hotchpot the following:
(i) the debt owing by the first respondent to the Deceased's estate in the sum of $2,524.65;
(ii) the debt owing by the second respondent to the Deceased's estate in the sum of $237,514.95.
(b) Save for the amount referred to above in paragraph 1(a), pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in accepting, and not undertaking any further investigations into:
(i) all expenses paid or incurred by the first respondent using estate funds, except for all expenses relating to the estate's Toyota vehicle bearing registration number 423LJE from 8 December 2014 onwards;
(ii) any other conduct or transactions of and by the first respondent, including:
(A) commencing a proceeding against the first respondent to recover rent from Units 2 and 4 of 92 Stuart Street, Bulimba;
(B) commencing a proceeding against the first respondent to recover any other expenses from the first respondent on behalf of the estate;
[19]
during the first respondent's appointment as executor of the Deceased's estate.
[20]
(c) Pursuant to section 6 of the Succession Act 1981 (Qld), the applicant is justified in finalising the administration of the estate without retaining a forensic accountant to investigate the first respondent's conduct as executor;
(d) Pursuant to section 6 of the Succession Act 1981 (Qld), the application is justified in undertaking the final distributions from the estate, after:
(i) taking into account the hotchpot amounts referred to in paragraph 1; and
(ii) any tax, legal and accounting fees required to finalise the administration of the estate.
(e) The applicant's costs of this application be paid from the estate of the Deceased on the indemnity basis.
(f) The second respondent bear her own costs of the proceeding.
Parties
Applicant/Plaintiff:
Dalziel
Respondent/Defendant:
Budulica [2025] QSC 171
[6] In this proceeding, the advice sought concerns the taking into account of certain debts allegedly owed to the estate by each of the respondents when undertaking the final distribution of the estate; directions about not undertaking any further investigations into the conduct of Stan during the period that Stan was the executor of the estate between 2013 and 2023; directions about the finalisation of the administration of the estate without retaining a forensic accountant; and directions about otherwise attending to the final distribution of the estate after the payment of all outstanding liabilities. The orders that are currently sought by the applicant are opposed by one or more of the respondents.
[7] The current financial position of the estate is set out an affidavit of Mr Dalziel affirmed on the 6th of February 2025, court document 23. The current assets and the liabilities of the estate are set out at paragraph 14, and show a net estate of an estimated $822,079.95. There is then an estimation given of unpaid legal costs through to the end of this proceeding, and there is an indication that there might be some interest paid to the estate, but that is an estimation of what remains in the estate presently to be distributed.
[8] There have been prior distributions from the estate. They are set out at paragraphs 17 to 21 of that same affidavit, and disclose that, prior to Mr Dalziel's appointment as administrator, Stan made the following interim distributions to Sylvia: namely, $300 on or around the 17th of December 2013; $3,000 on or around 22nd of January 2014; $50,000 on or around the 19th of December 2019; and $500,000 on or around the 26th of April 2022. Stan did not make any interim distributions to himself.
[9] Since his appointment as administrator, Mr Dalziel has made interim distributions: first, $5,000 to Stan on the 16th of April 2024, being the value of that Toyota vehicle that was appropriated to him by agreement; $250,000 to each of the respondents on the 4th of March 2024; $50,000 to Sylvia on the 1st of May 2024; and $611,300 to Stan on the 1st of May 2024.
[10] That means, so far, Stan has received from the estate a total interim distribution of $866,300; and Sylvia has received a total interim distribution of $853,300. There is a $13,000 difference that will need to be accounted for in the proposed final distributions.
[11] This proceeding was commenced on the 24th of October 2024, and is supported by extensive affidavit material filed on behalf of the administrator and his solicitor, Mr Camilleri. Directions were made in the proceeding by Justice Muir on the 18th of November 2024, which set pretrial directions, a hearing date of the 6th of March 2025, and provided that only paragraphs 1 and 2 of the originating application were to be heard on that day.
[12] On my review of the file in late February 2025, I proposed some further pretrial directions to the parties, and I set an in-court review to occur on the 28th of February 2025. At that review, solicitors and counsel appeared on behalf of Sylvia, they having been recently retained at that stage. But by early in the following week, those lawyers were no longer acting and Sylvia was self-represented again.
[13] The hearing scheduled for the 6th of March 2025 ended up being adjourned due to the court closure for Cyclone Alfred, and a new hearing date of the 25th of March 2025 was assigned. On the 21st of March 2025, the court corresponded with the parties, noting that the applicant's submissions appeared to address the whole of the amended originating application and not only part of it, and asking if the parties agreed to the hearing being for the determination of the whole of the amended originating application, rather than just part of it. I confirmed with the parties at the commencement of the hearing that they wanted me to, and that I would, determine the whole of the amended originating application, not just merely part of same.
[14] The hearing commenced with three witnesses being required for cross-examination by Sylvia. Those witnesses were Mr Dalziel, the administrator; Mr Camilleri, the solicitor for the administrator; and Stan. No other party required witnesses to be cross-examined and no other witnesses were cross-examined.
[15] Much of the cross-examination carried out by Sylvia, and the evidence given by and submissions made by her, were not directly relevant to the allegations in the issue in the proceeding. Sylvia, despite the difference being explained to her, purported to give evidence from the bar table several times. I emphasised during the hearing and emphasise again that this proceeding is confined to matters that arise relevant to the amended originating application. It is not, for example, as was contained in Sylvia's written submissions, an opportunity for her to re-agitate issues that have already been determined by the court, for example, her claim for further and better provision, or other issues that are not otherwise within the proper scope of the amended originating application.
[16] I have carefully read all of Sylvia's material and listened carefully to her submissions. Even where such material was not directly relevant to an allegation in issue in the determination of the amended originating application, I have taken it into account at least as being background explaining, from Sylvia's perspective, her position in the current proceeding.
[20] I emphasise, for the purpose of this case, the following matters taken from the cases. First, the purpose of judicial advice proceedings is to give advice to the administrator. It is not to finally determine the rights and obligations of the parties. Second, the proceeding is a summary process. Judicial advice proceedings are not to be treated as a trial of the issues. Third, the principal purpose of the court giving advice is to protect the interests of the trust; another purpose is protection of the trustee who acts on the court's advice. Fourth, that the issue about which judicial advice is sought is adversarial rather than non-adversarial in nature does not mean that judicial advice should not be or cannot be given. Advice can be given even though the facts are contentious and have not been determined by litigation.
[21] Accordingly, I note that if judicial advice is given in this case, it will not determine final rights between the parties. It is nothing more than advice to the administrator that the court considers that if the administrator proceeds in a particular way or not proceeds in a particular way, that is a reasonable decision in the circumstances known to the administrator that have been disclosed to the court, upon which the court gives the advice.
[25] The next matter - because I am still in the list of things that I would like to emphasise about particular issues that arise in this case - is that, at this stage, given the amount of time that disputes in this matter have been ongoing, there must be a strong public interest in the estate being finalised.
[26] I then move to say something generally about the evidence and credit issues. The cross-examination of Stan by Sylvia attempted to establish that Stan was a liar who was deliberately seeking to conduct a fraud on the estate and that he was preferring his own interests to those of Sylvia. I am not prepared to make any findings to that effect. It is not for me to decide any final rights as between the beneficiaries in this proceeding, but I am not persuaded to approach this proceeding on the basis that Stan is a thief, a fraud, has been negligent or has engaged in misconduct. My impression of the evidence, including from the cross-examination of Stan, is that he has at least attempted, when he was performing the role of executor, to carry out his functions properly. Two unsuccessful applications to remove Stan as executor were made before the third application which was successful. Whilst there were undoubtedly some criticisms of Stan accepted by the judges hearing each of those three matters, ultimately it was Stan's unrealistic attempts over too long a period of time to have Sylvia agree to an estate distribution that would see him obtain the Stuart Street property that was the key fact leading to his removal. It was not any findings of fraud or other misconduct. I think that having read the decision that, quite fairly, the judge who heard the third application appreciated that the parties perhaps had lost some objectivity, and from an outsider's point of view, the estate was not ever going to be finalised without someone independent coming along and performing that role.
[27] Submissions were also made by Sylvia that suggested that, effectively, the administrator and his solicitor were favouring the interests of Stan over Sylvia, that they were not listening to complaints she made and were accepting everything told to them by Stan at face value. Again, I am not persuaded that that is the correct position. The extensive material filed by Mr Dalziel and Mr Camilleri and their cross-examinations demonstrate that, in a very trying situation where Sylvia seems intent on agitating issues, including issues that had already been resolved, they have continued to act professionally and independently.
[28] Sylvia was not cross-examined in this hearing. I note that the court has not looked particularly favourably upon some of her evidence and advocacy in previous matters before the court. What is clear to me is that Sylvia passionately holds certain views about her brother and about whether she has been treated fairly in the administration of her mother's estate. Her complaints go well beyond just her mother's estate. For example, I have already made reference to the Jamieson Street property, which is an example of that. The reality at the moment is that Sylvia has no objectivity and will likely not be satisfied by any outcome that the court can give.
[29] I am going to give advice to the administrator on the topics requested that should permit the estate to be finalised.
[30] Although the estate has been required to expend significant amounts on legal costs and maintaining the estate over the very lengthy period of administration, in the result each of the siblings will benefit to the extent of over a million dollars each from the estate. That is no trifling amount. It would be generally hoped by anyone who reads of the history of this estate that, over 11 years after the death of their mother, the siblings will be able to come to accept what has occurred and will move on with their lives. But whether there will be more litigation yet is a matter for the parties and not for me. Instead, I will focus on giving the administrator advice on the topics that has been sought.
[36] Justice Mullins (as she then was) in her decision noted that that the properties had been vacant for a while and why they were vacant. She noted some other issues that she did not consider were proper administration of the estate by Stan, but ultimately concluded that his executorship should not be revoked.
[37] The argument goes, in this case, that having been put on notice that even the judge who was hearing that application thought that the properties had not been rented out for a long period of time, that that really should have put Stan on notice that the repairs needed to be finalised and the properties rented out so that rent was received by the estate promptly.
[38] It was initially the position of the administrator in this application, and remains the position of Sylvia in the application, that some adjustment ought be made to Stan's share of the estate to, effectively, account for the non-received rent from the estate properties over a period of time. The administrator's calculations of approximately $33,000 cover from about when the time Justice Mullins made her decision until when the properties were rented. Sylvia contends that the amount of adjustment that should be made should, in fact, go back earlier in time than that, because even by the time Justice Mullins had made her decision, the properties had not been rented for some time.
[39] Stan's position about that adjustment is summarised in an affidavit from Mr Dalziel. There is other separate evidence from Stan, but I will just go to the Dalziel affidavit for present purposes. His explanation was that the lack of tenants in the properties was due to the market being oversaturated which made it difficult to obtain new tenants; that he had engaged a real estate agent who had previously been engaged to find tenants for the family for over 30 years; that on the advice of the agent, the original rent was reduced to be more attractive; that when a unit was vacant, there was a gentlemen's agreement that keys would be provided to the agent and that the agent would find a tenant; and that the delays in finding tenants were beyond his control and he should not be penalised for that.
[40] Sylvia, to the contrary, in addition to the matters I have already mentioned, makes the point that Stan had his own private rental properties and she points out or claims that it is not otherwise disputed that Stan's own properties were tenanted throughout this time period. The inference that it seems I am being asked to draw is that he was in some way preferring his own interests in his rental properties over that of the estate.
[41] The estate's position, as it was previously expressed to me, and which is, effectively, adopted, and, in fact, expanded upon by Sylvia, is set out in the affidavit of Mr Camilleri affirmed on the 14th of February 2025, court document 24 from paragraph 5, which at paragraph 8 shows how the calculations are made that the administrator initially sought advice in relation to.
[42] My exchanges with counsel during the hearing were to the effect that, as I have already outlined in the relevant principles in this type of case, there is evidence by Stan, including some independent media that shows there was a glut of units at the time and shows that he did have an agent attempting to find tenants for the property. And I was concerned about how the court, or even the administrator for that point, could really, without a trial, form a final conclusion about whether there was any misconduct by Stan which justified this type of adjustment being made.
[43] I indicated that, in a sense, I would have no difficulty giving advice as sought that the adjustment might reasonably be made, but on the other hand, given the small amount involved and the fact that an actual court case about the issue would involve much more than the amount involved, I would equally be prepared to give advice that the administrator would be equally justified in not making that type of adjustment, because it seems to me that without a full trial, it is in an unenviable position for any decision-maker to be in.
[44] In the consequence then, where the administrator now, as I understand it, does not seek to include that amount of about $32,000 in the proposed hotchpot, I am content to make orders of a nature that the applicant is justified in not making any adjustment in relation to the non-received rent from the estate properties. Faced with the competing information and given the amount involved, it just cannot be the case that there would be any sense in the administrator engaging in any type of litigation over that particular amount.
[53] That list of numbers demonstrates that that was a somewhat time-consuming process, and it might be, in fairness to Sylvia, that there are other items of a similar nature that she has overlooked. I am not going to go through each item one at a time for the purposes of this decision to identify what my answer is to each and every one of them, because I think that most of the items can be dealt with in groups where I can indicate what the advice will be in a general way.
[54] The first category concerns items from suppliers such as Bunnings, Woolworths, Spotlight and Tradelink. There are some other suppliers. These are for items that Stan alleges he purchased for the estate properties for maintenance or repair. An example of a such purchase is for herbicides, something that I can see on a receipt that I have looked at.
[55] The position of Sylvia seems to be, in relation to this category of items, that Stan has his own investment properties, that he is a liar, that he is always looking to double and triple-dip, and it could well be that the items evidenced in those various receipts were actually for his own use, including potentially on his own investment properties and had nothing to do with the estate.
[56] That submission was particularly emphasised by Sylvia when the shop from which the relevant items were purchased was not the shop closest in location to the estate properties. For example, particular suspicion was raised by Sylvia where purchases were made at the Victoria Point Bunnings rather than the Cannon Hill Bunnings, which is closer to Hawthorne and Bulimba.
[57] My findings are as follows. It is not for me to finally determine one way or the other whether any particular receipt is an estate expense. This is not a trial of that dispute. What I am able to ascertain is that Stan has claimed that they are expenses relating to the estate property and has generally provided some explanation for the need to make the purchase. On the face of the receipts, they are in respect of items which might reasonably be incurred as estate expenses, in maintaining the estate properties. They are not obviously non-estate property expenses.
[58] I note that Sylvia has not been able to point to any compelling evidence that suggests they are not, in fact, proper estate expenses. Her evidence generally goes no higher than a suspicion. I also can see - or what I can ascertain is that - the amounts involved are generally small amounts. Many of them are under a hundred dollars. Others are within the hundreds, but they are not thousands of dollars per transaction, and it must be remembered that whilst that list of items is very long, the estate administration has now been ongoing for over 11 years, about 10 years of which Stan was executor.
[59] It is not commercially viable, in my view, for the administrator to further investigate these individual items, even as a bundle of items, or to instigate any type of proceeding that might be able to determine once and for all the claim about whether these are estate expenses. No further investigations or steps by the administrator, in my view, are commercially warranted. Accordingly, I find that those types of expenses have been reasonably accepted by the administrator as estate expenses.
[60] The next category are accounting expenses incurred, often but not solely related to an accounting company. I think it was called Action Accounting. The first complaint of Sylvia was that such accounting fees might have been incurred in relation to not only to estate matters, but also Stan's personal matters, or his own business matters.
[61] I have gone to each of the relevant invoices and that allegation is simply not made out on the face of the invoices, which are from independent accountants, where the descriptions of the work performed and who the invoices are addressed to, suggest strongly that the accounting charges relate to the estate only.
[62] The second complaint by Sylvia seems to be that she did not understand why there would be individual tax returns prepared for the deceased and trust tax returns. There is no validity to that complaint. Both would be estate expenses.
[63] The third complaint by Sylvia seems to be, and this was a complaint that was raised by Sylvia in relation to a number of categories of items, which I will return to, if Stan had carried out his executorship properly, the estate would have been finalised years before and none of these costs would have been incurred as estate expenses, or at least none of the costs, say, past a couple of years into the executorship.
[64] Again, this is not a proceeding in which I can or will determine whether there is any negligence or misconduct in Stan's executorship of the estate that would justify an expense of this nature not being a proper estate expense. But I can conclude that it is obvious enough from the various proceedings that I have summarised that Sylvia has pursued to date, and seems to continue to want to re-agitate, that extensive delays in the administration of the estate realistically to a large extent could not have been avoided. I am, therefore, not prepared to conclude that the estate ought to have been finalised sooner and that these types of estate expenses ought to be adjusted against Stan in some way.
[65] The third category of items is car parking and public transport claims made by Stan, in respect of which it appears he was required in court because of the various litigation when he was executor. Sylvia's complaint seems to be that Stan should have caught a bus and no-one paid her transport fares. The amounts involved are relatively small, some of the car parking charges are, in fact, less than the then public transport return fares that I was told by Sylvia were about $11.
[66] It is not, in my view, unreasonable for an executor to seek and obtain reimbursement of parking or transport costs associated with court appearances where the estate is involved, the amounts involved to me seem to be reasonable, and even if there were to be any doubt about that, it would not be commercially economical for the administrator to commence proceedings to have these items considered in any final way. There is nothing unreasonable in the administrator accepting this category of costs.
[67] The fourth category of items is from receipts from suppliers such as Officeworks, and they are described as being estate expenses in the sense of printing and ink cartridges and paper that Stan has used to deal with estate matters over his decade of executorship. Again, there is nothing, in my view, unreasonable in the administrator accepting this category of costs. Insofar as it might be able to be speculated that Stan might have used the same ink or printing or paper for some personal use, that is, of course, a possibility, but not one which the administrator would be reasonable in pursuing any further, given the relatively modest amounts involved.
[68] The fifth category of items concerns land tax. Sylvia's complaint again seems to be - it is one that I mentioned before - that had Stan carried out his executorship properly, the estate would have been finalised years before and a lot of these costs would have been avoided being incurred as estate expenses. But I have already explained why I am not prepared to conclude that the delays should be sheeted home to Stan in a way that means those amounts should not be properly viewed as estate expenses, and so I am satisfied that those amounts are properly accepted by the administrator as estate expenses.
[69] A specific item that did not seem to fall into any category, which I will just mention, is item 71. In the table provided, it identifies that it is a tax invoice for Ormeau Sales Centre, and then, in brackets, says, "invoice provided but does specify what for". That commentary in the table was relied upon by Sylvia to say, well, you cannot even tell what the invoice is for, so how could it properly be an estate expense that ought be accepted. I have gone to the reference document, at exhibit page 1636, and the document discloses it is for the purchase of a roller door opener, a remote and tape flashing. There is other evidence from Stan that indicates that those items were purchased for an estate property, and there is no evidence that Sylvia could take me to, to show that that purchase was not, in fact, for estate property.
[70] The next category of invoices about which there is complaint concerns what I will describe generically as tax payments. Item 130 is an example of this category of expense. The complaint, again by Sylvia, seems to be that on the face of the document, one cannot tell whose tax was being paid and the suggestion seems to be that there is a possibility that it could have been Stan's personal tax. But I can see from the accounting that has been undertaken that all tax matters relating to the estate have been checked and, where there have been discrepancies, the administrator has had tax returns updated where necessary acting on accounting advice. Absent there having been some discrepancy shown, I am satisfied that it is reasonable to accept that these are a proper estate expenses.
[71] The next category of items concerns the deceased's car. She had a car. It was insured. She apparently had an RACQ membership, which I am told from time to time came with it the benefit of some insurance discounts, and obviously the car was registered. The car was kept by Stan and apparently stored. The evidence about this was not clear, but what I gather is that Stan, it seems, always proposed to keep the car for himself, and initially did not make any claims in respect of the car expenses against the estate. But when any agreement about the car between the respondents broke down and ultimately the current administrator sought the directions that I have mentioned from Justice Wilson, which included about the car, the car expenses prior to that date were then charged back to the estate. The costs that have now been charged to the estate include maintenance costs, insurance costs, RACQ membership and some repair costs.
[72] It does not seem to me that there is sufficient evidence about why the car was kept and why it was not disposed of. Eventually, in 2023, in the current administrator's earlier proceedings, advice was given about the car being sold to Stan for $5,000. I cannot see how keeping the car and having the estate pay expenses in relation to the car for so long was reasonable. The sale of the car ought to have occurred promptly after the deceased's death.
[73] As events actually occurred, the car appears to have cost more for the estate to maintain than it was actually even worth. I do not think that those expenses have been properly incurred beyond, say, the first year of the executorship, and I will not give advice that the administrator accepting that those expenses beyond that period of time as estate expenses is reasonable.
[74] That does mean that some further work might need to be undertaken by the administrator if he accepts the advice. I do note that the car seems to have been insured with RACQ, and that there are items in the list of items where there are payments for RACQ insurance without any policies. So it is not always clear from the table what precisely are the expenses related to the car. In that respect, I refer, for example, to items 541, 546 and 556, which may or may not be car insurance. That is not obvious either from the table or by going to the identified supporting material.
[75] I will now address some other individual items that did not fall into particular categories. Item 217 concerns a valuation paid for of the Barton Road, Hawthorne property. The complaint by Sylvia was that the valuation was only valid for three months and the property was not sold within that period of time, and so it was, effectively, a pointless valuation.
[76] I do not accept that complaint about the item. It is reasonable for the executor to have obtained valuations of the relevant properties from time to time. In the event it sometimes happens that the property will not be sold within the period of time the valuation is valid for, but there is nothing that demonstrates to me that it was not a reasonable step for the executor to take. So I consider that item is reasonable for the administrator to accept.
[77] In respect of items 251 through to 253, these are land tax entries, and they are subject to that earlier complaint or category I have already dealt with about whether the delay in the finalisation of the estate means that certain land tax ought not be recoverable. But there seems, for these particular items, to be a further complaint made by Sylvia, which was a little hard to understand. As best as I understand it, the suggestion seems to be that there is some capital gains tax issue. It seems to be suggested that there was a joint account between Stan and the deceased into which various rental payments were made during the deceased's lifetime, and that as a consequence of that, because Stan has had some benefit from that property in the past, or receipts from that property in the past, Sylvia's liability for capital gains tax ought to be somehow adjusted in her favour.
[78] I cannot see that that has any validity. It has not been sufficiently explained for me to understand what the precise issue is, and it is not evident why land tax payable in respect of estate assets should not be paid by the estate, so I think there is nothing unreasonable in the administrator accepting those amounts.
[79] A specific complaint was made about item 332, which is an invoice for $480 from Corney & Lind Lawyers. I understood the complaint by Sylvia to be that Corney & Lind Lawyers were lawyers retained by Stan in relation to some domestic violence court matters that were determined between herself and Stan, and that it was not properly an estate expense. But I have gone to the invoice, which is referenced there at exhibit pages 587 and 588, to verify that on its face the invoice does, in fact, relate to estate work and does not appear to have anything to do with any domestic violence related matters. I am not prepared to accept that that item has been improperly accepted as an estate expense.
[80] Items 375 and 376 concern cleaning expenses that were incurred at Stuart Street, Bulimba. Sylvia's complaint seems to be that that the tenants ought to have undertaken any required cleaning that is covered by these invoices, and insofar as Stan did not claim those costs against the tenants' bond, or otherwise required them to do that cleaning, that that is some unreasonable conduct by him that ought result in an adjustment of those amounts against him, such that they are not accepted as estate expenses.
[81] Again, I am not prepared to accept that. They are on their face cleaning expenses in relation to the estate properties and even the best managers from time to time will have recalcitrant tenants that end up costing them money with things like cleaning not being carried out properly. There is nothing unreasonable about the administrator accepting those amounts.
[82] Item 425 concerns an oven, about a thousand dollar electrical oven, which looks like a replacement for one of the rental properties. Sylvia's case is basically that paying a thousand dollars for an oven at the property, given its age and the fact it was to be sold, was not reasonable and something like a $100 second-hand oven ought to have been purchased. She pointed out the fact that the house eventually ended up being knocked down after the property was sold in any event, so she said it was a complete waste of time. That might be so with the benefit of hindsight, but the reality is if the oven needed to be replaced, the estate was entirely proper in replacing it and there is nothing wrong with the administrator accepting that invoice at its face value.
[83] There is a category of items like 430, 457 and 461 and similar, which basically are payments, as I understand it, for electricity at the Stuart Street property whilst repairs were being undertaken by Stan and the properties were not tenanted. Sylvia's position is that Stan's repairs took too long, well over a year, and that she should not be responsible or the estate should not be responsible for the electricity costs during that period of time.
[84] I do not accept that to be so. I am not prepared to conclude that even though the repairs took a significant period of time, that it was unreasonable. Stan has provided some explanation, that it was difficult to get trades and that he eventually did the work himself. I note that he did not charge any labour charges for that, so that is of benefit to the estate.
[85] There was a complaint made about item 443, which is what is described as a recovered debt for about $6,200 from Mitchells Solicitors. When one goes to the supporting document, it is not very informative about what the payment is made for, except that it is Mitchells Solicitors. It can be seen from other materials that Mitchells Solicitors was retained by Stan to assist him with his executor duties, and it is fair to infer that it is a payment of solicitors' fees related to the executorship. Whilst there is not, in the material that I could find, the actual invoice from Mitchells Solicitors, I do not think it is unreasonable for the administrator to accept the amount on the basis that there is a reasonable inference that it was costs associated with the administration.
[86] There are a number of other wake expenses, which the administrator has accepted, which are not the subject of the wake expenses that were conceded by Stan. They include items 501, 502, 507, 508 and 510. They are small expenses. They are said by Stan to do with the wake. That is not an unreasonable position. There seems to be a suggestion by Sylvia that one of the items is a foldout table that she does not seem to dispute was purchased for the purpose of using it at the wake, but seems to be concerned that Stan has then retained it. It is a $30 charge. The amounts involved are such that upon some fairly reasonable explanation having been given by Stan and the expense having been proved, it is not unreasonable for the administrator to accept those amounts as estate expenses.
[87] In respect of items 535 and 536, Sylvia seems to rely upon the description in the table that said, "Unclear - BCC rates" and said, "Well, if it is not clear, then how could it possibly be the position that they are properly estate expenses?" Whilst that is how they are described in that table, one only needs to go to the page numbers that are there referenced, exhibit pages 201 and 204, to see that they are rate accounts in respect of the estate properties. There is nothing unclear about them that I can see, and there is no reason not to conclude that they are proper estate expenses.
[88] Item 583 concerns a Fallon tax invoice of just a bit over $2,000, which was said by Sylvia to be, effectively, wasted air conditioning. It looks like it was an air conditioning device that was installed in one of the properties. I do not think it is unreasonable for the purpose of renting real estate in Brisbane that sometimes tenants want air conditioning, so insofar as it appears from the investigations of the administrator to be associated with the estate property, there is nothing unreasonable about the administrator accepting that expense.
[89] And then the last individual item that I want to say anything about is the inscription on the headstone to the deceased's grave, which was an issue that Sylvia raised. In court document number 23 at exhibit page 11, there is that summary table that the administrator has put together of disputes between the parties about various expenses, where Sylvia basically said that that particular expense ought not be accepted by the estate because Stan did not honour the deceased's wishes to have the engraving in Croatian and did not consult her, and did it too late, that is, 11 months after the date of death.
[90] Stan disputes that it is not properly an estate expense. And I think that the administrator in that respect has taken the correct position, that on its face, it is an acceptable estate expense. That there is an individual dispute between the respondents about what was written on the headstone or in what language it was written is a private matter. It is not relevant to the accounting of the estate, which is the matter with which the administrator is concerned.
[91] Those are all the items. I hope that covers all of the items sufficiently, or, if I have not specified the particular number, at least the categories of items so it is obvious how they ought be dealt with, in my view.
[104] Costs are, of course, always a discretionary matter. There are allegations going, as there has been for the last 11 years, between the respondents back and forth. As I have indicated, it is not that I can actually resolve any of those issues on a final basis. My impression of the proceeding is that if one were to compare the relative outcomes, Stan has been much more successful in this proceeding than Sylvia has. It is not that I have ticked off every issue in Stan's favour. Importantly is the one that I have ruled effectively against him concerning the car expenses. I do not think it is right to say that the car was wholly dealt with in previous orders of the court. That earlier decision was only concerned with the actual transfer of the vehicle, not all of the expenses that had been incurred about the car during the executorship.
[105] So it is not a case where there is wholly success for one party. On the other hand, it is perfectly plain that it is Sylvia's conduct in wanting to re-agitate complaints, many of which on their face do not appear to be based in evidence, that has led to the need for the administrator to bring this particular proceeding.
[106] Having regard to the long history of the matter, the contentious nature of the disputes that have been raised and that still remain, although not ideal, I think that the proper outcome in this case is that the costs of the administrator of the proceeding ought simply be borne by the estate with no adjustment made as between the beneficiaries. Insofar as there is an application for Sylvia to recover her costs, I do not think those costs are properly justified in all of the circumstances and should not be borne by the estate, or by Stan, and so I refuse to make an order for costs in favour of Sylvia and order that she bear her own legal costs of the proceeding.