DELLA BONA -v- DELLA BONA [2026] WASC 88 (20 March 2026)

1. Joanne also relies upon submissions filed on 19 January 2026.
2. This application is being determined on the papers.

1. June died intestate on 19 November 2020. Joanne and Steven discussed who would administer the estate. In July 2021, Steven contacted Joanne's current lawyers about applying for a grant of letters of administration but ultimately did not wish to act as administrator. Steven did not wish to do so and so Joanne applied. The grant issued on 23 March 2022.[1]

(a) 6 Shillington Way, Thornlie, in the State of Western Australia, being Lot 735 on Plan 13239 comprising the whole of Certificate of Title Volume 1564 Folio 736 (Property);

(b) personal effects;

(c) a Kia vehicle;

(d) GESB superannuation;

(e) Australian Super; and

(f) a bank account with the Commonwealth Bank of Australia.

1. The value of the estate required clarification. The originating summons states that it is approximately $747,601.27.[3] That figure appears to form the basis of the amount claimed as commission in paragraph [2] of the affidavit sworn 21 July 2025. The estate accounts annexed to that affidavit state that figure ($747,601.27) as the balance available for distribution after payment to Joanne (ie the net value). Paragraph 4.5 of the submissions refers to 'approximately 3% of the $580,063.87 estate'.
2. That clarification was provided in Joanne's affidavit sworn 12 February 2026, in which she confirmed that the correct current value of the estate is $728,220.54.
3. Pursuant to s 14(1) of the Administration Act 1903 (WA), the following are entitled to share in June's estate:[4]

(a) Joanne, as to one third;

(b) Steven, as to one third; and

(c) Teniqua, Kade, Jessica, Angelina and Nathanial, as the children of June's pre‑deceased son, David Jack Della Bona, equally as to one third (one fifteenth each).

1. Joanne and Steven had an 'unadopted sister', Juanita Indich. June had wished for provision to be made for Juanita. As Juanita was not adopted, the only way that could occur was by a Deed of Family Arrangement following the issue of the grant. Steven and Joanne wanted Juanita to be an 'equal beneficiary', that is, to be treated as if she had been adopted.[5]
2. This is not a complicated estate. It has not yet been finalised, although June died nearly five years ago, and a grant of representation issued nearly four years ago.

1. Between April and August 2022, Joanne made several attempts to manage the administration of the estate on her own, without engaging a solicitor.[6] By around August 2022, she instructed Laird Lawyers to help her progress the administration, particularly with the sale of the Property and the distribution of the estate.[7] This included consideration of Juanita, who did not have an entitlement under the Administration Act.[8]
2. Around the same time, Joanne arranged for a new estate account to be opened and closed in respect of June's personal bank account, transferring the remaining balance into the estate account.[9]
3. Joanne took steps to have the car valued and deposes that due to the state of the car's engine, it 'would cost more to repair the vehicle than to replace it'.[10] The car's estimated value is listed at $600 in the draft accounts of administrator.[11]
4. In relation to the superannuation funds, Joanne provided the required documents to GESB in approximately May 2022,[12] and the death benefit was deposited into the estate account around September 2022.[13] The process with Australian Super took longer, and those funds were not received until May 2023.[14]
5. Joanne obtained two independent valuations for the Property in May 2022 and June 2022.[15] In September 2022, she had determined that she would take her entitlement in specie and pay the difference between her share and the valuation.[16] The transfer paperwork was finalised and signed about a month later, on 27 October 2022.[17]
6. These transfer documents were then submitted for duty assessment, and after responding to a couple of requisitions, duty was assessed and paid roughly three months later, in February 2023.[18]
7. Joanne instructed her solicitors to proceed with lodging the relevant applications. However, she could not locate the duplicate Certificate of Title and Landgate required an application to replace the lost title. Those documents were commenced in March 2023 and updated in April 2023.[19]
8. By approximately April 2023, Steven refused to sign any documents, insisting instead that the Property be sold so he could receive his portion. Both Joanne and her solicitor attempted to prepare alternative documents that he might be willing to sign, but none of these efforts was successful.[20]
9. In or about August 2023, Landgate changed its policy and did not require a duplicate Certificate of Title.[21] As a result, Joanne's solicitors attempted to lodge the documents in September 2023. Landgate then required amendments to a form and the duty certificate, which were subsequently completed, and the documents were successfully lodged in late October 2023.[22]
10. It appears that Steven and Juanita signed the Deed of Family Arrangement in around September 2023.[23] It is not clear what happened to the signed deed, but it could not be found. In late April/early May 2024, Steven and Juanita indicated that they would not sign the Deed.[24]
11. Administration of this estate required that Joanne create an estate account, sell her mother's car, contact superannuation providers, and arrange for the sale of the Property. This required dealing with a lost Certificate of Title and negotiations with the Australian Taxation Office (ATO) about CGT exemption. This was time consuming work. Joanne estimates that she has spent a minimum of 100 hours:[25]

[141] I confirm that throughout the entire administration of the estate, I have dedicated a minimum of 100 hours:

(a) thoroughly searching for and collating the necessary documentation;

(b) managed the estate accounts by ensuring the accounts remained up to date and paid;

(c) organised maintenance works to be carried out on the Property;

(d) sought independent valuations on the Property and Car;

(e) retained detailed records of all transactions;

(f) communicated any concerns of Steven and Juanita to Laird Lawyers; and

(g) communicated any relevant updates to Steven and Juanita (which I estimate to have been the vast majority of my time in administering the estate).

1. I accept that this administration has required significant time.

Trustees Act

1. The Trustees Act provides:
   1. Trustees' remuneration

(1) The Court may, out of the property subject to any trust, allow to any person who is, or has been, a trustee thereof or to that person's personal representative such commission or percentage for that person's services as is just and reasonable.

(2) The aggregate commission or percentage allowed under subsection (1) shall not exceed 5% of the gross value of the trust property.

(3) The Court may, from time to time, allow such portion of the aggregate commission or percentage allowable under this section as it thinks fit.

(4) Where the Court allows a commission or percentage under this section, in any case in which 2 or more persons are or have been trustees, whether acting at the same time or at different times, the Court may, in its discretion, apportion the total amount allowed among the trustees in such manner as it thinks fit, and, in particular, may divide the amount in unequal shares or may make the allowance to one or more of the trustees to the exclusion of the other or others.

(5) In the absence of a direction to the contrary in the trust instrument, a trustee being a person engaged in any profession or business for whom no benefit or remuneration is provided in the trust instrument is entitled to charge and be paid out of the trust property all usual professional or business charges for business transacted, time expended, and acts done by him or his firm in connection with the trust, including acts that a trustee not being in any profession or business could have done personally; and, on any application to the Court for commission or percentage under subsection (1), the Court may take into account any charges that have been paid out of the trust property under this subsection.

1. An executor is entitled to their commission. They do not need to demonstrate that the estate was particularly onerous or complicated. In this estate, all the beneficiaries who have entered an appearance have indicated that they abide the decision of this Court. All beneficiaries have been served. This application is unopposed.
2. As Master Sanderson observed in Knuckey v Knuckey:[26]

[16] ... The fact is that an executor has a statutory right to make a claim and it is for the court to assess the quantum of any commission allowed.

[17] ... Perhaps the principle can be stated with no more precision other than to say the more complicated the case the higher the commission is likely to be ...

1. Applying the principles enunciated by Le Miere J in Peter Henry Atkins as Executor of the Estate of Robert Charles Godfrey v Godfrey & Ors:[27]

[12] The principal issues for determination are as follows:

1. Apart from any disentitling conduct, is the plaintiff entitled to remuneration for commission for his efforts in administering the estate?
2. Should the plaintiff incur a reduction or loss of remuneration altogether by reason of having performed badly or committed a breach or breaches of trust?
3. What rate or quantum of remuneration if any, should the plaintiff receive?

1. 'The court may refuse commission on a number of grounds where there has been some misconduct in the execution of the executor's duties'.[28]
2. There is no evidence of any disentitling conduct. The estate took some time to finalise; there were delays caused by compliance with the requirements of the superannuation funds, ATO and Landgate, and other factors related to family dynamics. None of that is 'misconduct' on the part of the executor. Draft accounts have been filed clearly setting out the expenditure and income of the estate.

1. The statutory cap is 5%.[29]
2. Joanne submits, and I accept, that the proper approach is to form an overall assessment of what remuneration is just and reasonable rather than apply the Barr Smith scale.[30]
3. Factors relevant to quantum of commission are:

(a) The maximum '... should only be granted where the difficulties of administration have been very great, or the financial benefit to the estate of the executor's activities very considerable.'[31]

(b) 'The amount and rate of remuneration should be determined by the nature and the extent of the activities carried out by the executor and the work and judgment involved in administering the estate rather than the size of the estate.'[32]

(c) Consideration of professional services used.[33]

(d) '... [T]he amount of work done which is not reflected in the executor's account. This includes dealing with family disputes and conflict concerning the administration of the estate.'[34]

1. Five per cent is the maximum commission, which should only be granted where the administration has been complex.
2. Commission of 4% was awarded in Ackermann v Ackermann,[35] which involved a large estate, administered in Australia and the United States;

[19] The Estate and its administration have not been straight forward. Ms Ackermann is based in the USA. In addition to the multiple wills, further work has been required due to the complexity of Ms George being a dual citizen of both Australia and the USA and holding property in both jurisdictions. The administrative demands on Ms Ackermann were exacerbated by Ms George's passing during the COVID-19 pandemic.

[20] The work undertaken by Ms Ackermann includes asset preservation and realisation, taxation compliance, estate accounting, management of testamentary instruments, and cross‑jurisdictional management, as set out in Ms Waugh's affidavit.

1. Commission of 0.6% was awarded in Atkins; Le Miere J stating, 'I reduce the commission I would otherwise have allowed to take into account the plaintiff's failure to exercise the scrutiny over the legal fees that he should have exercised and for his failure to ensure that the estate was finalised earlier'.[36]
2. Commission of just under 2% was awarded in Knuckey. The plaintiff had sought a commission of 2%. It appears that there was some tension between the executor and his brother (similar to the familial tensions in this matter). The estate was similar to, but larger and actually less complex, than June's; a bank account and a house to be sold and the proceeds divided.
3. Joanne seeks:
   1. Commission of 3% being $22,500 (as noted in para [11], this appears to be of the net rather than gross, value of the estate);
   2. The estate pays for her costs of this application fixed in the amount of $22,628.72; and
   3. The estate pays the costs of the first defendant and the second [sic] to seventh defendants' costs fixed in the sum of $3,850.
4. Joanne submits that she should be entitled to approximately 3% of the estate on the basis that in Knuckey the Court awarded slightly under 2%. In Ackermann, a larger and much more complex estate, a commission of 4% was awarded. Joanne therefore submits that this administration is more towards the complex end of assessment than otherwise.

1. Administration of this estate was protracted and contentious. For reasons beyond Joanne's control, it took a considerable amount of time. I accept that part of this administration involving navigating strained familial relationships. Additional complexity was added by compliance with (changing) requirements of Landgate and obtaining a private ATO ruling. It was not however complex in the sense that Ackermann was complex.
2. Accordingly, I assess commission payable at 3% of $728,220.54, being the gross value of the estate which is $21,846.62, to be paid from the estate.
3. It is appropriate that the plaintiff's costs be paid on a trustee basis, and I so order, fixed in the amount of $22,682, to be paid from the estate.
4. The estate is also to pay the costs of the first, and third to seventh defendants fixed in the sum of $3,850 (the second defendant not having entered an appearance is not entitled to costs).
5. This application is made by Joanne in her capacity as administrator of the estate, and as a beneficiary of the estate she appears as the first defendant. The heading of the originating summons does not reflect this, although many of the filed documents do accurately record the parties' status. Accordingly, orders will issue that the originating summons be amended to reflect the correct status of the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Joanne Melva Della Bona sworn 21 July 2025 (First Joanne Affidavit) [7] - [23], 'JDB4'.

[3] Originating summons filed 6 August 2025 [4]. However, the originating summons sets out at [4(a)] - [4(g)] the values that constitutes the estate which totals $890,175.59.

[6] First Joanne Affidavit [33] - [42].

[15] First Joanne Affidavit [35], [38].

[17] First Joanne Affidavit [56], 'JDB6'.

[19] First Joanne Affidavit [71] - [76].

[20] First Joanne Affidavit [77] - [83], [88], [91] - [98], 'JDB12' - 'JDB14', 'JDB15', 'JDB17' - 'JDB20'.

[23] First Joanne Affidavit [99], [107], 'JDB22'.

[24] First Joanne Affidavit [121] - [122], 'JDB26', 'JDB27'.

[26] Knuckey v Knuckey [2022] WASC 157 (Knuckey) [16] ‑ [17].

[27] Peter Henry Atkins as Executor of the Estate of Robert Charles Godfrey v Godfrey & Ors [2006] WASC 83 (Atkins) [12].

[29] Trustees Act 1962 (WA) s 98(2).

[30] See Re Barr Smith [1920] SALawRp 36; [1920] SALR 380.

[35] Ackermann v Ackermann [2025] WASC 541 (Ackermann) (Master Russell).