Dowling v Irvine

Medium Neutral Citation: Dowling v Irvine [2025] NSWSC 961

Hearing dates: 4 April 2025

Date of orders: 31 July 2025

Decision date: 25 August 2025

Jurisdiction: Equity - Probate List

Before: Slattery J

Decision: Set aside Orders 2 and 3 of the Registrar’s orders dated 27 June 2024, pursuant to UCPR r 49.19, increasing the appointed executor’s commission from $42,000 to $90,000, and increasing the award of the appointed executor’s legal costs for the claim for commission before the Registrar from $30,475 to $65,000. Order that the respondent pay the applicant’s legal costs of the review application. If those costs are not agreed within 14 days, they will be the subject of a specified gross sum costs order.

Catchwords: SUCCESSION – Executors and administrators – Commission - Matters affecting quantum –administration of an estate takes over 30 years to finalise – one of the beneficiaries has been litigious throughout the administration – consideration of causes of the delay – consideration of an executor’s “pains and trouble” in awarding commission in the face of – whether executor has financially benefited from estate administration – consideration of extent of executor’s personal performance of executor’s duties.
CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Powers of Judges to review discretionary award of commission – reasons for intervention.
COSTS – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long-running estate administration due to family conflict – limited funds remaining in estate – need to end conflict – undesirability of further contest about the assessment of legal fees.

Legislation Cited: Charter Establishing Courts of Judicature in New South Wales, 13 October 1823 (the Third Charter of Justice)
Civil Procedure Act 2005
Probate and Administration Act 1898
Uniform Civil Procedure Rules 2005

Cases Cited: Dowling v Irvine [2005] NSWSC 531
Estate of Edward Simshauser, deceased (NSW Supreme Court 24 November 1978, unrep)
Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206
Hawkins v Barkley-Brown [2010] NSWSC 48
Irvine v Dowling (Supreme Court (NSW), Cohen J, 14 October 1994, unrep)
Irvine v Irvine [2008] NSWSC 592
Irvine v Dowling [2021] NSWSC 119
In the Will of Sheppard [1972] 2 NSWLR 714
Phillips Re Estate of Joel [2007] NSWSC 639
Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247
Re Estate of Joel [2007] NSWSC 639
Re Phillips [2007] NSWSC 639
Re Watters [2006] NSWSC 1277
Spence v Spence [2003] NSWSC 1232
The Estate of Maureen Laila Huber, of Cobram VIC; The Estate of Dolf Paul Huber [2020] NSWSC 1539
Tobin v Ezekiel: Estate of Lily Ezekiel [2009] NSWSC 1313
Tomko v Palasty (No 2) (2007) 71 NSWLR 6

Category: Principal judgment

Parties: Plaintiff: Elizabeth Ruth Dowling
Defendant: Micheal James Irvine (as Executor of the Estate of the late Maxwell Charles James Irvine)

Representation: Counsel:
Plaintiff: E Cohen
Defendant: B Goodyear
Solicitors:
Plaintiff: Martin Street Lawyers
Defendant: McIntosh McPhillamy & Co

File Number(s): 1992/50775

Publication restriction: N/A

JUDGMENT

1. Administration of the estate of the late Verdun John Irvine (“the deceased”) has been riven by bitter conflict for 33 years since his death in September 1992. Early hostilities were so intense that his executrix, the plaintiff, Elizabeth Ruth Dowling (“Elizabeth”), obtained an apprehended violence order against another principal beneficiary, her brother, Maxwell Charles James Irvine (“Maxwell”) and he against her.

2. On 31 August 2021, the executrix applied by motion for the passing of accounts and for commission under Probate and Administration Act 1898, s 86 for her “pains and trouble” as executrix in administering the estate. Maxwell is now deceased. Maxwell’s son and legal personal representative, Michael, the respondent, opposed her being awarded commission by the Registrar. But in June 2024, the Registrar awarded her commission of $42,000 and legal costs associated with the application for commission of $30,475.

3. The executrix’s motion dated 25 July 2024 seeks review of the Registrar’s decision under Uniform Civil Procedure Rules 2005 (“UCPR”), r 49.19 contending the awarded commission was inadequate. The defendant/respondent opposes any increase. These reasons explain why an increase in commission (to $90,000) and a greater allowance for costs (of $65,000) are justified in the exceptionally burdensome, anxiety-provoking and stressful circumstances faced by this executrix over an unusually long period.

4. The matter was argued in the Probate list on 4 April 2024. Ms E Cohen of counsel instructed by Martin Street Lawyers appeared for the plaintiff/executrix. Mr B Goodyear of counsel instructed by McIntosh McPhillamy & Co appeared on behalf of the defendant. The Court was assisted by the careful submissions and attention to detail by the lawyers on both sides, especially given the lengthy period of the administration of this estate. Although the defendant has been unsuccessful on this review, his case was presented to its best advantage by the lawyers acting on his behalf.

5. During the proceedings, and in their evidence, the parties mostly referred to one another by their first names. For convenience and without intending any disrespect to any family member, the Court will generally do the same in these reasons.

Review of the Registrar’s Decision

6. The Registrar made the following orders on 27 June 2024 on the 2021 motion for the passing of accounts and commission in the estate of the deceased:

“1. The accounts of Elizabeth Ruth Dowling, the executor of the estate of the late Verdun John Irvine for the total period of 9 September 1992 to 30 June 2021 be passed.

2. The executor be allowed commission in the amount of $42,000 (incl any GST)

3. The legal costs of and incidental to the filing and passing of the accounts and the application for commission (including the costs of directions hearings) that may be paid from the estate be fixed in the sum of $30,000 (plus GST) and filing fee of $427 and publishing fee of $48.”

7. The Registrar certified the accounts that were passed as follows:

“It is certified that the accounts covering two periods from 9 September 1992 to 30 June 2000 and 1 July 2000 to 30 June 2021 as verified on oath by Elizabeth Ruth Dowling, executor of the estate of the Late Verdun John Irvine, have been examined and the accounts appear to be correct.

It is further certified that in the total period covered by these accounts:

1. Capital realisations: $ 3,233.747.70

2. Income collected: $469,613.57

3. Assets transferred in specie: $Nil

4. Refunds to the estate after 30 June 2021: $ 3700 + 11,300

It is further certified that at the close of both accounts on 30 June 2021, the balance to the credit of the Estate was $709,055.54”

8. Elizabeth’s motion seeks review of the Registrar’s Orders 2 and 3. Elizabeth submits that the awards of commission and costs did not properly consider the complex history of the estate, nor the true depth of her “pains and trouble” in administering the estate. Consequently, she seeks to increase the quantum awarded under those orders.

9. Michael argues in reply, on behalf of Maxwell’s estate, that no commission or a lesser commission should be awarded. He points to the long delay in finalising the estate, which he submits is a consequence of Elizabeth’s poor administration. He also submits she has already benefited from her administration of the estate and did not carry out all the executorial tasks herself. And he says that this whole dispute could have been avoided by Elizabeth accepting his open offers to increase the amount of commission and costs.

10. The Court is empowered by UCPR r 49.19(1) to review a Registrar’s decision subject to certain presently non-applicable exceptions. An application under UCPR r 49.19 is not an appeal and is not subject to the restrictions that apply to ordinary appellate proceedings: Tomko v Palasty (No 2) (2007) 71 NSWLR 6. The application for review does not require there to have been any material error of fact or law in the Registrar’s orders: In the Will of Sheppard [1972] 2 NSWLR 714 at 716. But a review applicant has a practical onus of demonstrating why the Court has reason to depart from the Registrar’s decision, taking into account the reasons for the decision as well as what material was before the Registrar in the first instance: Tomoko v Palasty (No 2), and see also The Estate of Maureen Laila Huber, of Cobram VIC; The Estate of Dolf Paul Huber [2020] NSWSC 1539. Citing Re Estate of Joel [2007] NSWSC 639, Michael submits that the Court should only interfere if the registrar’s decision is shown to be “seriously incorrect” but the court is bound by the formulation of the Court of Appeal in Tomko v Palasty (No 2)**.

Related Estate and Family Proceedings

11. The Irvine family have regularly litigated among themselves since the death of the deceased. The principal litigation should be identified briefly before an account is given of the history of relevant family dealings. This litigation is referred to later during the short account of the history of the administration of the estate. Both parties referred the Court in their submissions to the judgments in this litigation.

12. In October 1994, this Court resolved family provision claims that the deceased’s widow, Enid, and Maxwell each brought against the estate: Irvine v Dowling (Supreme Court (NSW), Cohen J, 14 October 1994, unreported).

13. In 2005, Johnson J determined possession proceedings brought by Elizabeth against Maxwell: Dowling v Irvine [2005] NSWSC 531 (“Johnson J’s 2005 judgment”).

14. In 2008, Barrett J determined satellite litigation brought by Elizabeth’s aunt against Maxwell and his sons: Irvine v Irvine [2008] NSWSC 592 (Barrett J’s 2008 judgment).

15. And finally in Irvine v Dowling [2021] NSWSC 119 (“Kunc J’s 2021 judgment”) Kunc J determined that Elizabeth had a right to purchase the estate’s principal property and made orders setting in motion the process of passing of accounts of the estate before the Registrar.

16. The parties initiated several other applications and motions over the years for which reasons were not published. These include a judicial advice application brought by the executor before Lindsay J in 2016, which was ultimately dismissed.

17. Parts of the litigation history of the family are concisely summarised in Johnson J’s 2005 judgment and Kunc J’s 2021 judgment. Parts of those judgements are relevant to the causes of delay in the administration of the estate and on the present application the parties referred to these judgments in submissions. Reference is made to paragraphs [2] – [21] and [36] – [38] of Johnson J’s 2005 judgment, and to paragraphs [2] – [6], [120] – [121], [143] – [144], [147] and [160] of Kunc J’s 2021 judgment as background. Maxwell and Elizabeth in her capacity as executrix were both parties to these judgments and she and his estate are bound by the material findings in them necessary for their conclusions.

18. It did not serve the objectives of Civil Procedure Act 2005, Pt 6 to permit cross-examination of the parties and witnesses about 30 plus years administration of the estate on this review. Both the Registrar and now the Court on this application have undertaken the task of examining the competing evidence to see what inferences can be drawn about the course of administration of the estate. The inferences drawn from the evidence that the administration of the estate here are different from and more detailed than those of the Registrar. In what is essentially a summary jurisdiction, avoiding making detailed findings is the usual approach of the Registrar which was properly adopted here. Rarely contests require more than that approach but this is one that does. This partly accounts for the different conclusions now reached. What follows are the Court’s findings in relation to the material surveyed based on the probable inferences after considering the at times complex contest presented by the parties’ submissions.

The Irvine Family of Toogong

20. Through much of his life the deceased conducted grazing and farming operations on the property, “Lowery”, which consisted of prime agricultural land, situated between Toogong and Cudal, west of Orange on the western slopes of New South Wales.

21. The history of Lowery exposes some of the challenges of Elizabeth’s later administration of the estate. The deceased’s father, John Alexander Irvine (JA) inherited Lowery in 1927. JA had in turn inherited Lowery from another relative, William Irvine. JA died in 1941 leaving the property to the deceased and his executrix, Rosa. Some of the estate land, separate from Lowery, was still in William’s name when Elizabeth commenced her administration, requiring research into these prior estates before it could be sold. There were four small parcels of land in the estate separate from Lowery that required separate sales which Elizabeth effected during the administration.

22. Maxwell had worked at Lowery from his teenage years. As Michael’s evidence points out findings made by Cohen J in the family provision proceedings show that Maxwell was responsible for the bulk of the day-to-day agricultural assistance to the deceased before his death. This is largely the reason that his share of the residuary estate was increased. But by the late 1980s the deceased began to entrust more of the running of Lowery, including its administration and accounting to Elizabeth and her husband, Richard, who were operating their own farm in the district. The deceased appointed Elizabeth as his attorney. In November 1990, prior to his death, the deceased was admitted to a nursing home. Maxwell and Elizabeth came into conflict about the running of Lowery from then on. They came to an arrangement in which Maxwell would operate the southern part of Lowery (called in these reasons “Lowery South”) and Elizabeth the northern part (called in these reasons “Lowery North”). This arrangement was not formalised before the deceased’s death.

23. The deceased had executed his last will on 12 November 1987. Under that will he appointed his three children to be his executors and trustees, and he left to his wife, Enid, an annuity of $12,000 from the date of his death payable during her lifetime and declared that she should have the right during her life to reside in the home on Lowery with the use of its furniture and contents. He left the rest and residue of his estate to his three children. By a codicil executed in May 1990 he appointed Elizabeth to be his sole executrix and trustee, instead of all three of his children. This appointment and the deceased’s increasing trust in Elizabeth appears to have either generated or exacerbated hostility in Maxwell towards Elizabeth. This hostility became more overt after the deceased’s death in September 1992.

24. The deceased was survived by his wife, Enid, and their three children, Robert (born in 1940), Maxwell (born in 1949) and Elizabeth (born in 1955). Elizabeth is now the only survivor of the three children. Maxwell died in 2021 and Robert in 2023. From 1992, Maxwell exhibited periods of hostility towards Elizabeth throughout her administration of the estate although the intensity of this hostility waxed and waned. Maxwell’s son, Michael, the executor of Maxwell’s estate, maintains in these proceedings some of the disputes that Maxwell had with Elizabeth.

From the Deceased’s Death until Enid’s Death – September 1992 to June 2002

26. Between the deceased’s death in September 1992 and the grant of probate in November 1992 Elizabeth gathered the necessary information to apply for probate. The parties agreed not to formally value Lowery.

27. Probate was granted to Elizabeth in November 1992. The estate principally consisted of the land of Lowery and the agricultural enterprise conducted on Lowery. Elizabeth commenced to pay the $12,000 annuity to Enid.

28. Maxwell disagreed with Elizabeth’s running of the estate’s agricultural enterprise on Lowery and sought to conduct it his way. Elizabeth found that Maxwell was constantly physically interfering with her conduct of farming and grazing operations on the property. This intimidated Elizabeth. She attempted to evict Maxwell. He aggressively resisted Elizabeth’s action.

29. Elizabeth obtained an Apprehended Domestic Violence Order (“ADVO”) against him on 5 July 1993. Elizabeth attempted to evict Maxwell from Lowery in the first half of 1993. She alleged Maxwell threatened to shoot her. Maxwell did not admit such a threat was made but gave an undertaking without admissions to resolve the matter. Maxwell later commenced his own ADVO proceedings against Elizabeth which appears to have been resolved same way in reverse. Maxwell was not convicted of the related assault charge brought by Elizabeth as the complainant. But the episode shows their hostility.

30. On 7 July 1993 Maxwell commenced proceedings against the estate under the Agricultural Tenancies Act alleging that he had access rights over Lowery to cultivate the crops that he had planted on Lowery South. Elizabeth had to manage the defence of these proceedings on behalf of the estate, going to Court on several occasions. Maxwell ultimately discontinued the Agricultural Tenancies Act proceedings, and their merits were never determined but Maxwell took practical control of Lowery South thereafter. He achieved that outcome by barricading the entrance gates to Lowery South as later photographic evidence shows, thereby barring the executrix from access to a substantial part of the property of the estate. Robert was also excluded from Lowery South. Maxwell’s later conduct contesting attempts to remove him from Lowery South and the lack of any real account of Elizabeth accessing Lowery South strengthen the inference of Elizabeth’s exclusion from Lowery South by Maxwell.

31. This situation continued until after Enid died in 2002 and did not end finally until Elizabeth evicted Maxwell from Lowery South in possession proceedings in August 2005. Maxwell farmed Lowery South for his own benefit during this period with his own cattle and machinery. But the lack of communication between Maxwell and Elizabeth meant that estate cattle and Maxwell’s cattle at times became mixed up. Maxwell paid some money for the sales into estate accounts, but Elizabeth had difficulty reliably verifying what cattle were sold on behalf of the estate in this early period. Elizabeth filed accounts up until November 1993.

From Enid’s Death to Possession of Lowery South – June 2002 to August 2005

51. Enid died in June 2002. At Enid’s death and thereafter Maxwell was still exerting physical control over Lowery South. Elizabeth wanted to sell Lowery South and sell it to distribute the proceeds to the residuary beneficiaries. But Maxwell would not vacate and continued to use the property for his own agricultural purposes. Elizabeth’s version is corroborated by Maxwell’s later conduct in resisting Elizabeth’s claim on behalf of the estate to possession of Lowery South.

52. For the first six months, that is until the end of 2002, Elizabeth reasonably acquiesced in Maxwell’s continued possession to give him time to adjust to Enid’s death. For the next 12 months until the end of 2003 Maxwell, proposed that he lease Lowery South from the estate for $20 per acre per annum. Keeping the peace, Elizabeth also acquiesced in this on behalf of the estate. But Maxwell did not pay the rent, and the estate demanded that he leave. From January 2004 Maxwell remained in possession of Lowery South without the estate’s consent.

53. On behalf of the estate, Elizabeth sought recovery of money for the rent of Lowery South from Maxwell and in correspondence requested him to leave Lowery South to enable it to be sold. She wanted the estate to be finalised so the residue could be distributed to the beneficiaries. Maxwell refused to vacate Lowery South.

54. After her requests were ignored, Elizabeth was forced to commence proceedings in November 2004 for possession of Lowery South and for mesne profits for the benefit of the estate for Maxwell’s continued unauthorised occupation of the property.

55. Maxwell strongly defended the possession proceedings over a two-day hearing in April 2005. In June 2005, Johnson J made orders giving possession of Lowery South to Elizabeth as executrix of the estate and leave to issue a writ for possession. Johnson J saw fit in the circumstances to enjoin Maxwell from re-entering. After the judgment Maxwell did not voluntarily give up possession of the property and had to be removed. The Sheriff ultimately executed the writ for possession on 31 August 2005.

56. Elizabeth’s evidence, which the Court accepts, is that when the estate re-entered Lowery South, Maxwell had left it in such a poor state that it was, in a practical sense, unsaleable. The property had been overstocked, over grazed and was run down. Machinery was missing. The deceased’s vintage car and firearms were gone. The pastures were overrun with blackberry, Bathurst bur and Star thistles. Damaged and rusty vehicles were lying around. The useful timber on the property had been removed, leaving behind only stumps. Rubbish was strewn throughout. The property needed to be substantially redeveloped for sale. Elizabeth set about making Lowery South saleable by rectifying this damage.

57. The course of the possession proceedings and the findings of Johnson J are important indicators of indisputable facts surrounding the administration of this estate. The estate and Maxwell were both parties to the possession proceedings. Johnson J’s findings create binding estoppels on any findings necessary for his judgment for possession. The Court infers the following from Johnson J’s 2005 judgment.

“36. It is now approaching 13 years since the death of Verdun John Irvine and nearly three years since the death of Enid Ruth Irvine. The Plaintiff is the registered proprietor of “Lowery” and wishes to sell the property for the best possible price in discharge of her obligations as Executrix of the Estate of Verdun John Irvine, so that the proceeds of the sale may be distributed to the beneficiaries. The Defendant has no present lawful entitlement to remain in occupation of “Lowery”. The Plaintiff has required him to leave the property. The Defendant remains in occupation of the property. The Defendant has continued to operate “Lowery” for his own benefit and not for the benefit of the Estate. The other beneficiaries are being deprived of the Estate. Insofar as the Defendant has grievances with the Plaintiff reflected in other proceedings, past and present, none of these matters gives rise to a triable defence to the Plaintiff’s claim for possession of “Lowery”.

37. Insofar as there are practical steps which the Defendant will need to take to vacate “Lowery”, given his use of the property for agricultural purposes over a number of years, it seems to me that this may be met by allowance of a reasonable period before he is required to surrender possession of the property to the Plaintiff. At the hearing, Counsel for the Plaintiff proposed a period of about 25 days for this purpose. In my view, a period of five weeks from the date of judgment being handed down by me is reasonable. In reaching this view, I have regard to the fact that the Defendant has been on notice since at least January 2004, if not earlier, that he would be required to leave the property so that it may be sold to allow distribution of the proceeds to the beneficiaries of the estate. He has been on notice since 25 February 2004 that he should desist from any agricultural use of “Lowery”.

60. It is incontestable as result of Johnson J’s conclusions that Maxwell had no valid defence to the proceedings and no lawful entitlement to stay on Lowery South and that he was holding up the administration of the estate by remaining in possession. Maxwell’s contentions to the contrary of these binding findings can be disregarded.

61. But before the writ for possession was executed Maxwell lodged another caveat over Lowery South on 5 August 2005. This caveat claimed an “estate or interest in the land” merely as a “beneficiary of the estate of Verdun John Irvine of which the registered proprietor is executrix” and was also most probably unsustainable and liable to be struck out with costs for the same reasons as the 1999 caveat: Tobin v Ezekiel: Estate of Lily Ezekiel [2009] NSWSC 1313. Once again Maxwell’s filing of a barely arguable caveat demonstrates his readiness to take unreasonable steps to disrupt Elizabeth’s administration of this estate.

From Possession to Attempted Auction of Lowery South – August 2005 to May 2008

62. Elizabeth set about preparing Lowery South for sale. Much work was done under Elizabeth’s supervision. It took her almost 3 years to make Lowery South presentable for sale. This included clearing machinery and selling approximately 50 tons of scrap metal. In the meantime, flooding occurred to Lowery South in 2006. Elizabeth successfully obtained Rural Assistance Authority grants to repair the flood damage.

63. The possession proceedings continued in relation to the associated claim for mesne profits, including the damage to the infrastructure on Lowery South and the degrading of the land, including the loss of valuable timber. That issue was finally resolved in a mediation in 2007. Maxwell agreed in the settlement to account to the estate, by deducting $80,000 from his share of the sale proceeds of Lowery South. Michael’s evidence disputes that the land was degraded when Elizabeth took over, but the settlement of the mesne profits claim indicates otherwise.

64. By early 2008, Elizabeth had prepared Lowery South for sale. The estate having now been in possession for about 2 ½ years. Elizabeth organised the sale of Lowery South by public auction, scheduled for 30 May 2008. But the auction did not proceed. Shortly before the auction Maxwell lodged more caveats over the property. The Court infers from the timing of the caveats and their probable failure to identify a genuine caveatable interest that they were designed to disrupt the sale.

65. The caveats had that effect. Cancelling the auction seemed to Elizabeth a more prudent course than risking further legal proceedings against a combative Maxwell for removal of the caveats. Maxwell’s filing of the Caveats strongly supports the inference that he did not want to sell Lowery South at this time. The millennium drought was well underway and was by then impacting Lowery South.

The Drought Brings a Modus Vivendi – May 2008 to 2015

66. By May 2008 Elizabeth had met the estate’s external liabilities – mostly legal fees. Land prices had slumped in the drought. The global financial crisis was in full swing in 2008 and 2009. Elizabeth chose not to push forward with the sale but to await better seasons and economic conditions. And given Maxwell’s proven litigious nature it was realistic for Elizabeth to consider that had she taken the route of selling Lowery South and pushing to wind up the estate she may have found herself defending a claim from Maxwell for selling Lowery South at an undervalue. She did not attempt to sell Lowery South for several years.

67. Bad times brought the beneficiaries together. In 2008 – 2009, the three siblings came to what Kunc J described in his 2021 judgment as a modus vivendi*.* Elizabeth and Maxwell agreed to operate Lowery for the benefit of the three siblings, as it was unlikely to be sold for a satisfactory price in the near term. Elizabeth in her personal capacity and Maxwell put cattle on agistment on Lowery South. Elizabeth in her position as executrix accounted for the proceeds of this agistment on behalf of the estate.

68. By 2010, Maxwell and Elizabeth’s cattle were on Lowery South for agistment fees of $3.00 per head per week. It was agreed that these fees be accounted for from their respective shares on distribution from the estate. As executrix, Elizabeth had to keep accurate accounts of these financial arrangements throughout the years that followed.

69. This was the first time since the deceased’s death in 1992 that Maxwell had cooperated with Elizabeth in relation to the administration of the estate. But this period of relative peace did not last more than about seven years.

70. Maxwell’s estate complains on this application that Elizabeth could have transferred Lowery South into the names of the three beneficiaries at this point and wound up the estate. This was theoretically possible. But after more than 15 years of conflict since the deceased’s death, as executrix of the estate Elizabeth wanted to sell Lowery South and distribute the proceeds rather than take this suggested course of co-ownership of real estate with Maxwell. Given Maxwell’s obstructive conduct up to that date, including his meritless defence of the possession proceedings, this was understandable for the reasons explained later in this judgment.

71. Moreover, this argument seems to be something of an afterthought. There is little evidence at the time of Maxwell demanding the property be transferred into the three names. He seemed content with agisting his cattle on the property. And it is unlikely that any of them anticipated agistment for the next 7 to 8 years.

72. Elizabeth continued with estate administration. The estate successfully applied for a natural disaster grant for flood repairs in 2011, borrowing $70,000 at a low interest loan to undertake that work. A Natural Disaster Assistance Authority subsidy was granted in 2013. All the beneficiaries, including Maxwell, co-operated in these restorative actions for Lowery South, building up its value whilst leaving it in the estate. Michael’s evidence says that Elizabeth was continuing farming operations so that she could continue her contest with Maxwell for owning Lowery South. But both siblings regarded it as in their best interests to defer hostilities. Michael’s evidence criticises Elizabeth’s agricultural practices (as she was critical of Maxwell’s practices). But they all managed to farm the same land during this period.

Things Fall Apart – 2016 to 2021

74. In 2014, Elizabeth took the initiative and notified her brothers that she intended to sell the property and wind up the estate. The siblings’ conversations in 2014 led to a more formal written agreement. A private auction sale agreement was signed in February 2015 by Elizabeth and Robert and then by Maxwell in February 2016. Maxwell denied that this agreement was enforceable against him. After Elizabeth made the highest bid for Lowery South, for $2.3 million, a bitter dispute broke out in the first half of 2016. Maxwell lodged a caveat on Lowery South preventing any sale by the estate to Elizabeth.

75. Both Elizabeth and Robert wanted Elizabeth to buy the property and pay the proceeds of sale to the estate for distribution and finalisation of the estate. Had this sale been completed in 2016 it is likely that the estate would have been wound up by sometime in 2017.

76. In November 2016, Elizabeth sought judicial advice from Lindsay J as to whether the estate could sell the property to her. Given the contested nature of the issues, Lindsay J declined to give judicial advice and indicated that the matter should be litigated.

77. But the litigation did not commence until early 2018 and was commenced by Maxwell not by Elizabeth. Instead, the parties’ legal advisers engaged in hostile correspondence throughout 2017 about the merits of the contract dispute. By mid-2017, Maxwell’s lawyers were seeking undertakings from Elizabeth that she would not sell Lowery South until there was full estate accounting, and they were disputing Elizabeth’s capacity to purchase the property from the estate.

78. Elizabeth offered to resolve the dispute by selling the property at public auction, an avenue which, had all parties agreed, would have offered the chance of cutting through the dispute before it festered. In June 2017 Maxwell did not agree to a public auction. Maxwell’s legal advisers said instead, “our client is considering the matter”. No consent was forthcoming prior to the litigation before Kunc J in 2021.

79. In mid-2017 Maxwell appeared ambivalent about asking Elizabeth to formally file accounts for the then 25-year period since the deceased’s death. On 13 July 2017 Maxwell’s lawyers, King Cain, wrote to Elizabeth saying that he could not consent to her purchasing the property for $2.3 million party because of the lack of information about the accounts and final expenses of the not fully administered estate. Through his lawyers, Maxwell asked for that information “so our client can determine the likely share of the distribution to him of his entitlement to the residue”. The letter then went on:

“Our client does not call on you to file estate accounts at this time, but does call on you to provide up-to-date accounts of the estate. You’re obliged to do that on request from a beneficiary.”,

80. Maxwell’s contention was legally correct, and Elizabeth set about finalising up-to-date accounts to be given to Maxwell. She had already provided accounts up to 2008 to Maxwell’s previous solicitor. Over the next five months she completed the accounts from 2008 to 2017.

81. Estate accounts were provided by Elizabeth’s lawyers at Maxwell’s lawyers’ offices on 14 December 2017. Robert and his wife Lynne also inspected the accounts that day. Maxwell’s lawyers’ correspondence on 18 December 2017 communicated to Elizabeth that Maxwell’s accountant would be preparing a report on the accounts that had been presented, and “if he has any queries, we will forward them to you for response”.

82. The communications between the parties then took a curious turn. Maxwell’s lawyers provided Elizabeth with a draft Statement of Claim seeking her removal as executrix and the provision of accounts. They indicated they had instructions to file a Statement of Claim on 15 January 2018, unless she took immediate steps to complete administration of the estate prior to 31 January 2018 and explain how she was going to do it. Elizabeth responded on 20 December 2017 saying, “I am somewhat perplexed by the timing of this correspondence”, pointing out it was only a few business days until Christmas, lawyers’ offices were closed until 8 January, appointments would be difficult to obtain before 15 January 2018 and that no response had yet been received from Maxwell’s accountant about the quality of the accounts.

83. Maxwell pressed ahead, nevertheless. He commenced proceedings on 15 January 2018 seeking Elizabeth’s removal as executrix and for the passing of estate accounts. The Statement of Claim had been signed the same day as the inspection of Elizabeth’s accounts in the offices of Maxwell’s lawyers on 14 December 2017. It had not been served on Elizabeth. Maxwell’s lawyers gave Elizabeth extra time until 30 January 2018, to explore the possibility of a private renegotiation of the May 2016 agreement. But the proceedings went on, partly because Robert declined to be involved further in any renegotiation. Robert wanted to have the May 2016 agreement enforced. All this presents a picture of Elizabeth promoting resolution while Robert (his consent was necessary) was keen to enforce the original agreement and Maxwell setting an ultimatum Elizabeth could not have complied with, even if she had lawyers at the time.

The Proceedings before Kunc J

84. Elizabeth cross-claimed in Maxwell’s proceedings for specific performance of her purchase of Lowery South from the estate. The proceedings ultimately came on for hearing in May 2020 before Kunc J.

85. Kunc J saw that the real remaining issue in the administration of the estate was the question of whether the documents the parties had signed and the events which had occurred in 2016, legally entitled Elizabeth to purchase Lowery South from the estate for $2.3 million: Kunc J’s 2021 Judgment at [8]–[9]. His Honour subsumed Maxwell’s complaint over the administration of the estate and revocation of the grant of probate to Elizabeth to address the pressing issue of whether Elizabeth had a present entitlement to purchase Lowery South. Kunc J found for Elizabeth on that issue in his February 2021 judgment. He also made orders for the filing of estate accounts. Elizabeth completed the sale in April 2021. A total of $2.66 million was distributed shortly afterwards among Robert, Maxwell and Elizabeth.

86. But Elizabeth was involved between the hearing in May 2020 and Kunc J’s judgment in February 2021 in another unnecessary dispute about Maxwell’s occupation of Lowery South. Parker J made orders on 8 October 2020 that the licence given to Maxwell to agist cattle on Lowery South was terminated, that he must remove cattle from Lowery South by the end of October 2020, and that he was restrained from re-entering otherwise than for the purposes of removing his cattle. It is to be inferred from the fact that this motion was necessary and that orders were made in the estate’s favour, that Maxwell was still not volunteering to cooperate with the executrix about his use of Lowery South.

87. Kunc J’s orders led to Elizabeth’s motion for accounts and commission in August 2021 and the decision of the Registrar in June 2024. The Registrar’s decision upheld the passing of the accounts, after “the accounts were requisitioned in the usual way” as the Registrar described the process. Whatever criticisms Maxwell had of the accounts in 2017, they did not lead to a major rejection of the accounts, which the Registrar said, “the primary accounts tell their own story of the administration of this estate” and that Registrar was “generally satisfied” to issue the certificate of correctness. The production of generally satisfactory accounts over a 30+ year period is a feature of the present contest.

88. Michael’s submission on behalf of Maxwell’s estate is that Elizabeth was guilty of excusable delay through this last period from 2016 until Kunc J’s judgment in 2021. Two considerations are relevant here. The first is the extent of the delay and the cause of it. The second is whether the demand for accounts caused delay and if so whether that delay was Elizabeth’s fault.

89. As to the first of these, Kunc J assessed Elizabeth’s alleged delay in the context of the defence of laches in the 2021 proceedings (at 142] – [144]) as follows:

“142. Insofar as Max has raised a defence of laches to Elizabeth’s assertion of her rights under the Agreement, the Court accepts Ms Cohen’s and Mr Williams’ submissions that the evidence rises no higher than “mere delay” on the part of Elizabeth. It is a hornbook proposition that “mere delay” does not make out the equitable defence of laches.

143. The Court accepts that Elizabeth’s delays — although misconceived in the sense that she did not require anything further from any of the other parties and should simply have proceeded to purchase the Property in accordance with the Agreement (leaving it to Max to seek to enjoin her if that is what he wished to do) — are at least explained by her understandable desire to try to reach an accommodation with Max and avoid further litigation and legal expenses. I cannot help but think that matters would have come to a head much faster if Elizabeth had retained a solicitor to advise her generally from the time of the Agreement.

144. Max has not been able to point to any adverse change of position or prejudice which he (or anyone else) has suffered by reason of Elizabeth’s delay other than that he has been kept out of his share of the Estate. This last aspect is, in the Court’s view, resolved not by upholding the defence of laches, but by acceding to Max’s submission that in now purchasing the Property in reliance on her rights under the Agreement, Elizabeth must pay the Estate interest. I deal with this in paragraphs [146]– [159] below.”

90. Kunc J was critical of Elizabeth for not engaging a solicitor earlier and made findings about the hostility between each of the siblings affecting their credibility. Kunc J found that the resulting delay is in part Elizabeth’s fault. But this Court is also mindful, given the history that it has examined now, of Kunc J’s observation that Elizabeth wished to “avoid further litigation and legal expenses”. Indeed, she did. Litigation with Maxwell had been combative and consequently stressful and anxiety provoking for her in the past. Kunc J rightly, with respect, observed (at [157]) that Maxwell’s caveat could have been met with a lapsing notice had Elizabeth consulted lawyers earlier. But looking at the broad considerations relevant to assessing commission, Elizabeth would be likely to have remembered in 2016 and 2017, the prior stressful possession litigation with Maxwell.

91. Kunc J’s orders have neutralised the financial consequences of Elizabeth’s delay by an order for interest in favour of the estate. After rejecting an argument that Elizabeth had received a “windfall” from the increase in value of Lowery South, Kunc J explained (at [146] and [147]) his reasoning for making an order for interest against Elizabeth:

“146. However it will ultimately be framed, the relief Elizabeth seeks is equitable. It is therefore discretionary and can be granted upon conditions. Such conditions are often directed to ensuring that the person seeking equity does equity. What that should be is necessarily fact-specific and is a matter in which the Court has a degree of latitude (subject to being exercised judicially and for a proper purpose).

147. In seeking to assert her right to purchase the Property under the Agreement, Elizabeth must do equity by compensating the Estate by a payment of interest for the delay the Estate has suffered by her not acting on the Agreement in accordance with its terms, as the Court has found she was and is entitled to do. In reaching this conclusion, I reject Ms Cohen’s submission that Elizabeth’s inability to complete was due to Max’s conduct so that interest should not run. While Elizabeth’s reluctance to press matters into litigation is entirely understandable given the history of the Estate, the fact remains that she was entitled to, and should have got on with, the sale of the Property to herself for $2,300,000 in accordance with the Agreement.”

92. The order for interest made against Elizabeth was between 17 June 2016 (when the contract was due to settle) and 23 April 2018 (when Maxwell filed his defence to Elizabeth’s Cross Claim, denying her entitlement to act on the purchase agreement), a period of 22 months. The interest Elizabeth ultimately paid to the estate on this account was $424,082.19.

93. When Elizabeth completed the sale in April 2021, as earlier indicated, the bulk of the sale proceeds amounting to $2.66 million were distributed shortly afterwards to the three beneficiaries: the estate of Robert, the estate of Maxwell and Elizabeth. All that was left in the deceased’s estate was a residue sufficient to cover costs of passing accounts and the contested claim for commission with the remaining balance to be distributed to the beneficiaries.

94. Robert, the other brother in the family who is now deceased, was satisfied with Elizabeth’s administration of the estate. In his affidavit of 23 February 2023 Robert says, “I believe that Elizabeth is entitled to a commission, and I support her application, noting her significant time and efforts devoted to administering the estate of managing the estate assets.”

95. Elizabeth’s administration of this estate, which was comprised of dispersed parcels of rural and township land and pastoral businesses, involved a wide range of tasks. Elizabeth was required to do the following: breeding and raising livestock for sale, practising sound animal husbandry and engaging farm hands, sowing and spraying and harvesting crops, burning stubble and applying suitable land care practices, maintaining repairing and replacing fencing, mastering grain markets, retrieving straying stock, cleaning up and restoration after floods and dealing with government departments for flood grants, consulting agronomists, purchasing fertilisers and chemicals, maintaining irrigation systems, employing farmhands and contractors and undertaking day-to-day maintenance and planning.

96. The Court accepts that Elizabeth usually travelled twice a week from her home in Orange to Lowery which is about 60 km away. She would spend two hours on the property checking fences, cattle, crops, and water. Michael disputes this evidence but was in no position to contradict Elizabeth’s account in the early years and her account, which is consistent with her otherwise diligent approach to estate affairs, is accepted.

97. This was in addition to the administrative/clerical tasks of preparing BAS returns, consulting with bank managers and accountants, preparing tax returns, engaging conveyancers and lawyers, paying wages and estate liabilities, dealing with the national livestock identification system, applying financial disaster assistance, and calculating claims for waste against Maxwell.

98. The day-to-day burden of these tasks over more than 30 years made a significant impact on Elizabeth’s life. The parties debated in submissions the merits of Elizabeth’s claim that she was unable to take up a professional career because of her work as executrix. Michael submitted that she and her husband had run their own preserves business since 2013, Franklin Road Preserves. But this debate is somewhat beside the point. Elizabeth’s “pains and trouble” incurred for over 30 years in the ordinary administration of this rural estate were significant, apart from the additional anxiety that dealing with Maxwell forced on her.

The Registrar’s Report to the Court

99. The Registrar’s analysis of the facts and the issues in the Registrar’s Report to the Court provide a framework for the Court’s consideration of the issues on this review. Michael submits that the Court should give deference to the Registrar’s report in accordance with accepted authority. The Court accepts that is the correct approach.

100. But here the Court has undertaken a deeper analysis of the history of the administration of the estate than the Registrar, looking at the objective materials and the competing affidavit evidence. The Court has analysed the causes of the delay and the burden of the administration of the estate on Elizabeth somewhat differently from the Registrar, following an examination of the competing evidence beyond the accounts. On an ordinary passing of accounts and claim for commission the Registrar did not have to go through the same degree of detail as the current submissions have required of the Court. This has given the Court a different perspective on the underlying dynamic of the administration of this estate and an appreciation of the stresses that this estate administration must have caused Elizabeth. This is discussed further below.

101. The Registrar cited the statement of Lindsay J in Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247, in turn quoting Holland J in Estate of Edward Simshauser*,* deceased (NSW Supreme Court 24 November 1978, unreported), at 4:

“Section 86(1) [of the Probate and Administration Act] itself lays down the basis upon which [an assessment of commission] is to be made…This requires a full and fair examination of the work and services performed for the estate by the executor…including the provisions of the will, the nature of the assets and, where a business is being carried on the nature of the business, difficulties encountered in carrying it on and the time, effort and skills required of the executors properly to carry on the business, realise assets and administer the estate generally in the interests of and for the benefit of the beneficiaries. The object is to arrive at a just and reasonable allowance either by way of percentage or by a lump sum…” *(**Registrar’*s emphasis)

102. The Registrar emphasised that the primary considerations in awarding commission are: the provisions of the will; where a business is being carried on, the nature of the business, the difficulties encountered in carrying it on, and the time, effort and skills required to carry out the business; and, realising assets and administering the estate generally in the interests of and for the benefit of the beneficiaries.

103. The Registrar had the benefit of affidavits verifying the accounts and supporting documents, and affidavits in support of the claim for commission. The Registrar also had affidavits from the objecting beneficiary, Maxwell, and submissions and supplementary submissions on behalf of both Elizabeth and Maxwell.

104. The Registrar gave reasons for decision under seven headings: (1) the size of the estate, (2) complexity of the estate, (3) promptness, efficiency and diligence by the executor/trustee, (4) amount of work and time spent, (5) responsibility involved, (6) problems encountered, and (7) objections.

105. With the background of the narrative of findings above and using the Registrar’s headings, the Court now indicates where it disagrees with the Registrar’s Report. Then under the last heading in relation to objections, these reasons analyse the present contest between the parties with the Registrar’s findings.

106. (1) Size of the Estate. The Registrar’s observation that the value of the estate is “moderate” in terms of today’s values, being $3,718,361.27 is appropriate. The Court does not accept that the estate is “small”, as was submitted by Michael for Maxwell’s estate. But Michael accepted in submissions that the size of the estate does not determine the availability or quantum of an allowance for commission; rather commission is determined by the work done by the executor in the period covered: In Will of Sheppard [1972] 2 NSWLR 714, 720.

107. (2) Complexity of the Estate. This estate’s administration covered many of the usual elements of rural estates. The Registrar surveyed that complexity in broadbrush. These reasons have surveyed Elizabeth’s estate administration in more detail, which brings out the personal burden on Elizabeth that resulted from Maxwell’s obstructive behaviour. This is not a feature of the Registrar’s findings and is one difference in approach between this Court and the Registrar.

108. (3) Promptness, efficiency and diligence by executor/trustee. Michael submitted on behalf of Maxwell’s estate that Elizabeth was not expeditious in her administration of the Estate. The Registrar made two findings on this subject: that “there cannot be any finding of promptness in administration of this estate” and that the delay in this administration “appears to have been inordinate”. Both these findings are true as far as they go but the Court has analysed the causes of the delay here, differently from the Registrar by reference to the Court’s more detailed findings of fact.

“Clearly this was a problematic estate, and it is accepted that there was pain and trouble in dealing with issues that arose including a beneficiary who did not usually appear to agree with the executor”.

112. A beneficiary who did “not usually appear to agree” with the executor is too mild an assessment of the deliberate and unwarranted obstruction that Elizabeth encountered from Maxwell and the fluctuating rounds of anxiety that she suffered as a result.

113. (7) Objections. The parties’ objections on the review that occurred before the Registrar are now reconsidered under the next heading along with the parties’ submissions on the review.

Objections and the Contest on the Review

114. On behalf of Maxwell’s estate, Michael fielded a series of objections on the review as to why the commission the Registrar has awarded to Elizabeth should not be increased and indeed should be decreased. These are considered in this section.

115. Reason 1 – delay. Michael submits that the current award of commission of $42,000 is already reasonable, if not generous. Michael submits Elizabeth is responsible for “extraordinary delay in finalising the administration of the estate”. He submits:

“18. On 29 June 2002, the Deceased’s widow passed away (ACB 29 at 35 [26]) and her life interests obviously came to an end. At this point, there appears to have been nothing preventing the applicant from fully distributing the Estate assets and winding up the Estate. Indeed, the Estate now stood to be distributed in accordance with the residual clause in the Deceased’s will, as adjusted by the family provision orders of Cohen J, namely:

(a) 45% to Max;

(b) 27.5% to Robert; and

(c) 27.5% to the applicant herself.

19. The applicant could have transferred the southern portion of Lowery to Max, Robert and herself, as tenants-in-common in the above proportions; distributed any other remaining Estate assets and monies; and thereby finalised the Estate. If that had been done, the administration would have ended 23 years ago, and whatever family disputes that may have subsequently transpired would have taken place outside the Estate context.

…

” 22. The applicant has never given a proper explanation as to why she did not finalise the Estate 23 years ago. From time to time, two excuses have been proffered, but they do not withstand scrutiny.

23. The first excuse seems to be that in June 2002, the southern portion of Lowery could not have been distributed in accordance with the will, because Max was undertaking certain farming operations on the land, and it was thought necessary to evict him from the land before distributing the land: ACB 54 at 63 [34]-[38]. To avoid doubt, Max was not living on the land, a fact admitted by the applicant who says Max “only lived a few kilometres from the property”: ACB 54 at 59 [19]. It is also accepted by the applicant in written submissions, where she states “Importantly, Max at this stage did not reside at Lowery, but rather used the land for agricultural purposes”: ACB 128 at 137 [28]. In any event, the main point is this – the fact that Max may have been running farming operations on the land at the time did not prevent the land being registered in his name (as tenants-incommon with the applicant and Robert). This first excuse is no excuse at all.

24. Secondly, in written submissions, the applicant suggests there was “no evidence to establish that either beneficiary instigated a demand for sale of Lowery following the passing of Enid in 2002”: ACB 152 at 154 [5(b)]. But the beneficiaries were not required to make such a demand. They were not clothed with executorial duties to administer the Estate – the applicant was. And in any event, there need not have been a sale of Lowery at all. As has just been observed, there was nothing to prevent the applicant simply distributing the southern portion of Lowery in accordance with the will by transferring it to (i.e. registering it in the names of) Max, Robert, and herself as tenants in common, in the proportions as adjusted by the family provision proceedings. From there, the three siblings would have been free to fight until the cows came home about who might buy out the other two, and thus take sole ownership of Lowery. But one thing is for certain – the decades of family disputes that followed would, and indeed should, have taken place between three private citizens outside the Estate administration context. If that had occurred, the applicant’s appetite for litigation in the subsequent years may well have been more subdued, as she would not have had the Estate assets as a war chest to fund such litigation.”

116. This contention is not persuasive. Except in limited respects the delay in the administration of this estate should not be attributed to Elizabeth. Much of it was caused by Maxwell as the narrative of findings above shows.

117. The seven-year period between the deceased’s death and the sale of Lowery North in 1999 was occupied with the executrix responding to the family provision claims and then subdividing the property, all the time hampered by Maxwell’s obstructive denial of her authority. Maxwell’s family provision claim was not part of that obstruction: he was entitled to bring it and was successful in increasing his share of residuary estate from 1/3 to 45%. But he was preventing her having access to what became Lowery South, and disrupting her orderly management of the estate and its agricultural enterprise. The family provision proceedings and the subdivision took as long as might be expected given their complexity as did the subdivision. Elizabeth deserves no criticism for the delay in this period.

118. Enid’s life estate continued until 2002. Elizabeth could do little to wind up the estate during the life estate. But she kept accounts and ensured a proper balance between maintaining the rights of Enid, the life tenant and the residuary capital beneficiaries as best she could.

119. Michael’s submissions on behalf of Maxwell’s estate about what should have happened from 2002 do not accord with the reality on the ground at the time. His submissions do not recognise that Maxwell was actively obstructing further progress in estate administration by refusing to vacate the property, deploying groundless defences to delay his vacation and its sale. Given his conduct since the deceased’s death and the resultant lack of trust among the siblings it was never a realistic scenario to transfer the property in specie out of the estate into three names, other than at best as a waypoint towards an immediate sale.

120. The three could not trust each other and could never be expected to operate a property together in the long-term. They only did so later between 2008 and 2016 because they had little choice due to adverse sale conditions. Moreover, even in 2002 Maxwell was occupying the property himself and excluding the others. No one could trust him to vacate it co-operatively. In contrast, Elizabeth’s plan was reasonable and defensible: Maxwell leaves Lowery South, she sells it as executrix and the estate is distributed. Had her plan been fulfilled with Maxwell’s co-operation the whole estate would probably have been wound up by 2005-2006.

121. But Maxwell frustrated that plan until August 2005. Then it took until 2008 to prepare the property for sale, which Maxwell halted with a caveat. In the meantime, Maxwell was refusing to compensate the estate for the damage he had caused to Lowery South until the mediation settlement in 2007. It is hard to know if the sale of Lowery South would have been successful in May 2008, but Elizabeth was taking the clearest path forward that was available to her to wind up the estate. But Maxwell chose to stop it with his caveat. Any submission that subsequent delay was caused by Elizabeth is unrealistic and fails to acknowledge Maxwell’s own dominant part in preventing winding up of the estate. He used his caveat against the May 2008 sale to force his own longer timetable on Elizabeth and the estate’s administration. His submission that she caused delay from then on is unpersuasive, when the facts are properly examined. Moreover, her reluctance to oppose his actions and seek to remove his caveat is understandable given the bitter course of his meritless defence of the possession proceedings of then recent memory.

70. The respondent agrees with Registrar’s comment that this “is a moderate estate even in terms of today’s values”: RCB 357 at 360.

71. And if the administration had been completed in a timely manner, the capital realisations would have been much smaller (recalling that, at the time of the Deceased’s death, Lowery was valued at only $1,164,500). That too was a point picked up by the Registrar, with her noting “the value of the unrealised estate has increased considerably over the last 30 years and at different points would appear to have been far lower than the values in the recently issued certificate of correctness”: RCB 364 to 365.

72. Accordingly, the modest size of the Estate is a further reason why a greater award of commission is unwarranted. The respondent accepts, however, that this factor is not overly powerful. He accepts that commission is not dictated by the size of the estate per se, but rather by what representative activities have been carried out in respect of it. But as noted above, if the Estate had been finalised when it ought to have been (in June 2002), those activities would have been much more confined.”

150. This contention is not persuasive for two reasons. First, as Michael and the Registrar both indicate, this is not an important driver of the quantum of an award of commission. Secondly, even if the estate is described as modest, that is more than outweighed by the length of time it has taken to administer it.

The Calculation of Executor’s Commission

151. The Court is empowered to award commission in its statutory discretion under Probate and Administration Act 1898, s 86 and in its inherent probate jurisdiction conferred under the Third Charter of Justice of 13 October 1823.

152. There is an established custom to award commission on a percentage basis. The Court has considered the range of percentages that it might award, being those set out in my decision in Hawkins v Barkley-Brown [2010] NSWSC 48 at [68].

153. The Court also has the discretion to make an allowance of remuneration as a lump sum unrelated to a percentage calculation: Spence v Spence [2003] NSWSC 1232; Re Watters [2006] NSWSC 1277; R**e Phillips [2007] NSWSC 639.

154. The facts of this case are unique. They bear some degree of similarity to the facts in Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206 (litigious parties), as well as Phillips Re Estate of Joel [2007] NSWSC 639, (complex administration) but those cases are distinguishable based upon the Court’s findings here.

155. The narrative of findings shows the themes that pervade every unfortunate part of the administration of this estate. Maxwell was obstructive, unpleasant, combative, and disruptive of Elizabeth’s administration of this estate. He constantly challenged Elizabeth’s authority and judgment, not directly but by trying to intimidate her proper and diligent execution of her office as executor, which this Court conferred on her.

156. In accordance with modern case management principles the Court has encouraged parties to de-escalate disputes in the administration of estates, to be reasonable in their dealings with one another and to cooperate. Kunc J’s approach to the resolution of Maxwell’s proceedings in his 2021 judgment is a good example of the Court doing this: moving past the dispute about accounts and the removal of Elizabeth as executrix to the main issue.

157. The Court encourages people to volunteer to act in the role of executors and administrators and to discharge their duties efficiently, fairly and objectively. People will not volunteer for this role unless a realistic view is taken of the true “pains and trouble” of executors like Elizabeth, who have endured the personal toll of the intense stress and consequent anxiety caused by unreasonable obstruction but who have yet maintained their long-term personal commitment to estate administration. The alternative is for independent professionals to be appointed. But this was not viable solution for this estate, which could not bear such costs, as Elizabeth found out when she tried.

158. This is an exceptional case. Five sets of multi-faceted estate litigation are exceptional. Administration for over 30 years is exceptional. An ADVO brought by an executor against a beneficiary, and in reverse, is exceptional. The culture of trepidation instilled in Elizabeth in dealing with Maxwell is exceptional. A family feuding into the second generation is exceptional. These features, and others, give a profile to the considerations that weigh in favour of a considerably higher award of commission than the Registrar has awarded.

Review of the Registrar’s Costs Decision

164. Michael advanced four principal arguments on behalf of Maxwell’s estate to challenge the Registrar’s determination of costs of $30,000 plus GST (on the ordinary basis). In summary, Michael’s contention is that the current award of legal costs as determined by the Registrar is more than reasonable in that if this Court is going to intervene on the review application at all, it should be to reduce the costs to reflect the fact the Estate should have been finalised 23 years ago, in 2002. Each of his four arguments is dealt with below in turn.

165. First, Michael submitted on behalf of Maxwell’s estate that the unwarranted protracted administration of the Estate caused additional legal costs to be unreasonably incurred in the process of passing the accounts and the seeking of commission. He submitted that if the Estate had been finalised 23 years ago, the legal costs incurred in the passing of accounts (and in the claim for commission) would have been lower, the issues more confined and the accounts themselves would have been far more compact, as they would have dealt with 23 fewer years of Estate and business transactions.

166. This contention is not persuasive. The Court’s reasoning above has pointed out that Maxwell not Elizabeth is principally responsible for the delay which has occurred since 2002 but for a short period between 2016 and 2018 which was Elizabeth’s responsibility. To the extent that Elizabeth was cautious in responding to Maxwell’s own obstructive behaviour that is not an argument which has any persuasive force from his estate. Moreover, such delay as occurred between 2008 and 2016 was with Maxwell’s active consent and participation.

167. Secondly, Michael submitted on behalf of Maxwell’s estate that omissions and anomalies in the accounts caused their passing to be more complicated and costly than they should have been. He points out that the motion for the passing of the accounts having been filed in September 2021, the orders passing accounts were not made until June 2024. Michael submits the Registrar’s close knowledge of the detail of the accounts and the Registrar’s requisitions for various items to complete the accounts and the Registrar’s reference to “anomalies and omissions”, that “objections and requisition should be minimal” and that if accounts are kept in a cash format, then “significant legal costs” should not be required for their passing.

168. This contention is not persuasive. The Registrar’s closer familiarity with the detail of the accounts is correctly noted in Michael’s submissions. This familiarity is acknowledged and is most important as this should, as has often been emphasised, be a summary process: Re Estate Gowing; Application for Executor’s Commission (2014) 11 ASTLR 128 (“Re Gowing”) at [49] and [96] – [97]. But it is equally important in this unusual case to understand the circumstances of conflict in which these accounts were produced and why they were so extensive in time. Moreover, the parties have put on very extensive submissions about the detail of the accounts, which has made the Court more familiar with them than would ordinarily be the case and the Court has brought its own analysis to bear.

Conclusions and Orders

181. Elizabeth has been successful on the motion for review. But ordinarily costs of the motion for review should follow the event. The solicitors for Maxwell’s estate made open offers to resolve the motion but the result reached in these reasons betters those offers. The Court will therefore order the respondent, Michael as executor of the estate of Maxwell to pay Elizabeth costs of the motion for review. There may be other Calderbank letters to consider which can be dealt with under the grant of liberty to apply if required.

182. These parties would also benefit from the Court’s assistance in speeding up the final resolution of the deceased’s estate by making a specified gross sum costs order under s 98(4)(c) with respect to the costs of the review. This will allow the balance of the estate to be distributed in the near term without further arguments about costs. The directions below allow for a timetable for the parties to serve evidence and submissions in relation to the quantum of Elizabeth costs on the motion for review so that a s 98(4)(c) order can be made in chambers.

183. In consideration of the above, the Court:

184. ORDERS that ORDERS 2 and 3 of the Orders of Registrar Hedge made on 27 June 2024 be set aside pursuant to r 49.19 of the Uniform Civil Procedure Rules, and in their place:

(a) ORDERS that the executor be allowed commission in the amount of $90,000 (including any GST). (b) ORDERS that the legal costs of and incidental to the filing and passing of the accounts and of the application for commission (including the costs of directions hearings) incurred up to 27 June 2024 that may be paid from the estate be fixed in the sum of $65,000.

2. ORDERS that the respondent will pay the applicant/executor’s costs of the Notice of Motion filed on 25 July 2024 (the July 2024 motion) and heard on 4 April 2025, on the ordinary basis as agreed or assessed.
3. DIRECT the parties to endeavour to agree upon the quantum of the costs the subject of ORDER 2 within 14 days of the date of these orders, but if agreement cannot be reached the following orders operate.
4. ORDERS that a specified gross sum be fixed instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) in respect of the costs the subject of ORDER 2.
5. DIRECTS the applicant/executor to file and serve by 15 September 2025 an affidavit as to the costs claimed as having been incurred in respect of the July 2024 motion.
6. DIRECTS the respondent to file and serve by 29 September 2025 an Affidavit in reply as to costs of the July 2024 motion.
7. DIRECTS the applicant/executor to file and serve by 12 October 2025 any written submissions as to the costs of the July 2024 motion limited to two pages.
8. DIRECTS that the respondent to file and serve by 26 October 2025 any written submissions in reply as to the costs of the July 2024 motion.
9. NOTES that upon compliance with these orders the fixing of a gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) in respect of the costs the subject of ORDER 2 will take place in chambers without any further oral hearing.
10. NOTES that the Court will limit the amount of additional costs which may be expended in arguing about costs between today and the conclusion of the contest concerning the quantum of a specified gross sum under Civil Procedure Act 2005, s 98(4)(c) in these proceedings and therefore ORDERS pursuant to Uniform Civil Procedure Rules 2005, r 42.4 that neither party may recover more than $2,000 from the other in respect of compliance with DIRECTIONS 5, 6, 7, and 8.
11. NOTES that the Court will publish its reasons for decision in respect of these orders and directions in the week commencing Monday, 4 August 2025.
12. GRANTS liberty to apply.

**********

Amendments

19 January 2026

[25] last line, delete "siblings" to "sibling" [31], third last line, "verify" to "verifying" [33] third last line, add "was" before "directly" and delete "of" and replace with "were" before "the words" [40] third last line, delete "check" and replace with "set" before "this fund" [44] second last line, delete "a" and replace with "no" before "basis demonstrates" [46] third last line, add "to" before "intervene" [47] third last line, delete "it was" before "near" and change "near" to "nearly" [48] first line, change "that" to "at"; add "in" before "her place" [49] second line, add "and" before "took place" and delete "so" and replace with "from" before "Department of Primary" [51] first line, delete "the" before "Enid's" [59] third line, add "for" before "mediation" [62] third line, add "and" before "selling" [67] last line, replace "adjustment" to "agistment" [72] third last line, replace "is" with "as" before "in their" [73] third line, add "it" after "risk" [82] second last line, add "had" before "yet" [87] fourth last line, change "telling" to "tell" [91] end of quote, delete "imposing" [93] fourth line, change "deceased" to "deceased's" [95] third, fourth and fifth line, "breed" to "breeding", "raise" to "raising", "practise" to "practising", "sow" to "sowing", delete "farm" and replace with and spraying" and change "harvest" to "harvesting", "burn" to "burning" and "apply" to "applying" [97] last line, add "and" before "calculating" [98] fourth line, add "her" before "husband", fifth line, change "the" to this" before "debate" [111] second line, add "burden" after "Elizabeth's" [117] add "and" before "disrupting" [152] third line, replace "of" with "in" before "Hawkins" [161] fifth line, delete "will" [162] first line, add "of" before "the conversation" [168] fourth line, add "be" before "a summary" [182] second last line, replace "of" with "and" before "submissions"