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[2026] NSWSC 541
Supreme Court of NSW
2026-05-19
Nixon J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Farah v Farry [2026] NSWSC 541
Hearing dates: 12 May 2026
Date of orders: 19 May 2026
Decision date: 19 May 2026
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Nixon J
Decision: Grant of probate revoked, independent administrator appointed
Catchwords: SUCCESSION – Wills, Probate and Administration – Application to revoke grant of probate and to appoint an independent administrator – where consent orders previously made regarding sale of real property and distribution of proceeds – where property found to be contaminated with asbestos – where disputes between executors regarding steps to be taken as a result of contamination – where delay and lack of co-operation between executors – where administration of estate has effectively stalled – held: relief granted
Legislation Cited: Conveyancing Act 1919 (NSW) s 153
Civil Procedure Act 2005 (NSW) ss 14, 56-58
Probate and Administration Act 1898 (NSW) ss 40D, 64, 65, 73, 74, 81 and 90
Supreme Court Rules 1970 (NSW) Pt 78 rr 3, 48, 57
Cases Cited: Bajramovic v Calubaquib [2015] NSWCA 139
Bates v Messner (1967) 67 SR (NSW) 187
Brimaud v Honeysett Instant Print Pty Ltd (1988) 214 ALR 44
Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 205
Estate Kouvakas; Lucas v Kouvakas [2014] NSWSC 786
Estate of Philip Mack (Deceased) [2022] NSWSC 1629
Estate Wight; Wight v Robinson [2013] NSWSC 1229
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Immuto Fleur Nominees Pty Ltd v Archura Capital Pty Ltd [2024] NSWSC 1159
Kuitkowski v Tream [2023] NSWSC 145
Lester v Brown [2022] NSWSC 716
Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Ritossa v Ritossa [2023] NSWCA 14
Schaverien v Jones [2007] NSWSC 1429
Walker v Walker [2016] NSWSC 92
Category: Principal judgment
Parties: Laila Maria Farah (First Plaintiff)
Elena Josephine Farry (Second Plaintiff)
Michael Francesco Farry (Defendant)
Representation: Counsel:
S Docker SC (Plaintiffs)
P Glissan (Defendant)
Solicitors:
Legal One Services Pty Limited (Plaintiffs)
Doyle Legal (Defendant)
File Number(s): 2024/00420461
Publication restriction: Nil
This proceeding arises out of a dispute between siblings regarding the administration of the estate of their deceased mother, Ms Elda Farry, who died on 11 January 2019 (the Deceased).
The Deceased left a will dated 15 August 2018 (Will). Because the Deceased’s husband, Mr Michael Leo Farry (Michael Farry Snr), died within 30 days of the Deceased’s death, he did not become the executor of her estate under cl 2 of the Will. In such circumstances, cl 3 of the Will provided that the Deceased’s three children – namely, the First Plaintiff, Ms Laila Farah, the Second Plaintiff, Ms Elena Farry, and the Defendant, Mr Michael Farry – were to be appointed as executors and trustees. (For convenience, and without intending any disrespect, I will refer to the parties by their first names.)
Pursuant to cl 4 of the Will, Laila, Elena and Michael are the beneficiaries of the whole of the Deceased’s estate (Estate) as tenants in common in equal shares.
On 26 July 2019, probate was granted to Laila, Elena and Michael (together, the Executors).
The only remaining asset of the Estate is the land in folio identifier 4/29318, which is located at 34-42 Cross Road, Orchard Hills, New South Wales (Property). All other assets of the Estate have been sold, and the proceeds have been distributed.
The Property is held by Laila, Elena and Michael, as joint tenants, in their capacity as the Executors.
On 12 November 2024, the present proceeding was commenced by Laila and Elena, seeking leave, pursuant to s 153(4) of the Conveyancing Act 1919 (NSW), to sell the Property with vacant possession. The parties subsequently filed competing notices of motion, seeking different sets of orders regarding the sale of the Property and the distribution of the proceeds.
On 21 August 2025, the Court made orders, by consent, which provided, among other things, for the appointment by the parties of both a selling agent for the Property and a solicitor for the purposes of the sale.
By an Amended Notice of Motion filed in Court on 12 May 2026, Laila and Elena seek orders that the grant of probate be revoked, and that letters of administration, with the Will attached, be granted to an independent administrator (namely, Ms Monica Ross-Maranik of Keypoint Law, who has consented to such an appointment), as well as other ancillary relief.
Laila and Elena advanced two main bases for the application, as follows:
based on the history of the administration of the Estate, especially in relation to the Property, the Executors will be unable to co-operate to bring about the sale of the Property and complete the administration and distribution of the Estate, despite the consent orders that were made on 21 August 2025; and
further or alternatively, Michael is in a position of conflict between his personal interest and his duties as Executor (which is said to arise because of his role in relation to the dumping of contaminated soil on the Property, as described further below).
Laila and Elena contended that, in those circumstances, the appropriate course is to appoint an independent person to administer the Estate going forward, including to decide whether to take further steps to remediate the Property before selling it, and to sell the Property.
Michael opposed the application.
Before addressing the parties’ respective contentions, I have set out the relevant factual background below. These facts are, for the most part, drawn from the contemporaneous documentary record, supplemented (where indicated below) by the evidence of the lay witnesses. Each of Laila, her husband, Mr Edwin Farah, and Michael was cross-examined. While the evidence of each was challenged in a limited number of respects, there was no adverse credit finding sought in respect of any of them.
In about September 2019, there was a breakdown in the relationship between Laila and Michael. They have not had any direct communications since then.
Around the same time, there was a falling out between Elena and Michael.
By the time that this proceeding was commenced in November 2024, the only communications between, on the one hand, Laila or Elena and, on the other, Michael, were via a lawyer or another intermediary.
For a number of years following the death of the Deceased, Michael resided at the Property.
At some time in 2024, while he remained in occupation of the Property, Michael engaged a contractor, Mr Martin Farrugia, to fill in a dam on the Property with landfill.
The landfill which Mr Farrugia brought onto the Property was contaminated, including with asbestos.
Michael asserts that he was unaware of such contamination until testing was undertaken in 2025. Laila and Elena did not, for the purposes of this application, seek any finding that he was so aware (but noted that the extent of his knowledge regarding such matters may be in issue in the event that a claim is subsequently brought against him regarding such landfill).
On 4 August 2025, Michael vacated the Property.
On 21 August 2025, the Court made orders in this proceeding, by consent (Consent Orders). The Consent Orders noted “that the parties have settled their dispute in accordance with the Consent Orders”. There was no identification of the dispute which had been settled. However, the Consent Orders were made in a context where the parties were, by their respective notices of motion filed in June 2025, seeking competing sets of orders regarding the steps which should be taken to sell the Property and to distribute the proceeds of sale, and the Consent Orders directly addressed those matters.
The Consent Orders required, among other things, that:
the Executors must appoint Mr Anthony Bekiaris as the selling agent (Agent) for the purposes of the sale of the Property (order 1), and must allow the Agent to have access to the Property for inspection (order 2);
the Executors must appoint Byles Anjos Lawyers as the lawyers for the purposes of the sale of the Property (Property Lawyers) (order 3);
the Executors “must jointly instruct the Property Lawyers to provide advice as to whether any remedial or other steps are required to be taken in respect of any Contamination on the Property, including by reason of any landfill on the Property” (order 4);
the Executors are “to take such steps and to do such things as the Property Lawyers recommend in connection with any Contamination” (order 5);
the sale of the Property must be effected in the manner set out in order 6 of the Consent Orders (requiring the Property to be, in the first instance, offered for sale by auction);
the proceeds of the sale must be applied in the manner specified in order 7 of the Consent Orders; and
the Estate is responsible, from 5 August 2025 onwards, for various outgoings in respect of the Property (as set out in order 8 of the Consent Orders).
The proceeding did not come to an end with the Consent Orders. Rather, by those orders, the proceeding was stood over for further directions before the Probate Registrar on 18 December 2025, and the parties were given “liberty to relist on 3 days’ notice up until the Property has been sold and the sale proceeds distributed to the beneficiaries” (order 11A).
In accordance with the Consent Orders, the Executors appointed the Property Lawyers.
On 29 August 2025, in accordance with order 4 of the Consent Orders, the Property Lawyers gave advice to the Executors as to whether any remedial or other steps were required to be taken in respect of any contamination on the Property, including by reason of any landfill on the Property. This advice was given based on instructions that a dam located on the Property had been filled without approval from Penrith City Council. In particular, the Property Lawyers recommended that the Executors should:
“Conduct a detailed site investigation – Engage a suitably qualified environmental consultant to carry out tests on the fill and water for any contaminants. It is recommended that [the Executors] follow any advice provided by the consultant including any additional testing that may be required.”
“Prepare a remediation action plan – It is recommend[ed] that [the Executors] engage the services of a suitably qualified environmental consultant to prepare a remediation action plan. Noting that the dam has been filled without approval remediation will be required regardless of whether contamination has occurred.”
“Notify Penrith City Council and the Environmental Protection Agency – If it is determined that contamination has occurred it will be necessary to notify the Council and [the] EPA. Note that there are significant penalties that could potentially be imposed by Council and the EPA for the unauthorised filling of the dam.”
“Submit relevant documents for approval – if required, a development application should be lodged for any remedial works to be carried out.”
“Disposal of fill – It is imperative that fill is disposed of lawfully”, noting that “the penalties for failure to do so are severe”.
On 9 September 2025, the solicitors for Laila and Elena, Legal One, responded to the letter of the Property Lawyers of 29 August 2025, stating that, in respect of the recommendation to “conduct a detailed site investigation, to be carried out by a suitably qualified environmental consultant”, Laila and Elena had obtained a fee proposal from EI Australia Pty Ltd. This proposal, which was attached, set out a detailed scope of work, which identified the sampling methodology and laboratory analysis that would be undertaken, and quoted an amount of $17,500 (excl GST) for this work.
On the same date, Legal One provided EI Australia’s fee proposal to Michael’s solicitors, Doyle Legal. In their covering letter, Legal One stated that the landfill was introduced in a period when Michael was in sole possession of the Property and was an Executor; that the landfill was introduced without development approval and was uncertified; that by introducing this landfill, Michael breached his duties as Executor; and that he was liable to the Estate for any losses suffered by reason of those breaches of duty.
On 10 September 2025, the Property Lawyers wrote to Legal One and Doyle Legal, stating that they had reviewed EI Australia’s proposal, but were “not qualified to comment on whether the scope of works therein is compliant with industry standards”.
On 16 September 2025, Doyle Legal responded to Legal One’s letter of 9 September 2025, stating that Michael did not agree to the appointment of EI Australia, because their quoted price was “very high in comparison with what other Firms are quoting”, and that Michael had “has organised” a firm called Rose Testing to visit the Property on 16 September 2025 and to conduct contamination testing for a price of $1,000 (excl GST). Michael did not seek Laila’s or Elena’s agreement prior to engaging Rose Testing to perform this work. Doyle Legal’s letter did not attach any fee proposal or scope of works from Rose Testing.
On 19 September 2025, Legal One wrote again to Doyle Legal, stating that:
Doyle Legal had not provided any information regarding the qualifications of Rose Testing, the scope of works proposed, or whether those works would comply with relevant EPA requirements and guidelines regarding characterisation of site contamination and testing;
it was not possible to discern from the information provided “what Rose Testing intend to do, where they intend to sample and test the soil and what they are testing for”;
Laila and Elena did not consent to the appointment of Rose Testing, unless and until they were provided with a written proposal from Rose Testing addressing those matters; and
Legal One intended to write to the Property Lawyers to “seek their recommendation for engagement, as between EI Australia and Rose Testing”. (In this regard, a letter seeking such a recommendation was sent to the Property Lawyers on the same day, stating as follows: “To be clear, we are not requesting your advice on the appropriateness of the form of investigation, we are seeking your recommendation as to who should be engaged.”)
On the same day, Doyle Legal responded that Rose Testing had already taken soil samples from the Property and “the samples are currently in the laboratory being tested”. Doyle Legal further stated that it was awaiting “a full quote and description of the works to be completed from Rose Testing”, and that when those materials were received, they would be forwarded to Legal One. (To date, Doyle Legal has not provided Legal One with any such material.)
On 22 September 2025, the Property Lawyers stated, in response to the request for them to recommend either EI Australia or Rose Testing, that they had “not been appointed by the Court to make any determinations regarding the reinstatement of the land”, adding: “[w]e have provided our recommendations, and it is now up to the [Executors] to rely on expert advice”. The Property Lawyers further stated that: “[i]f the parties cannot agree then the matter should be relisted”.
On 3 October 2025, Legal One sent an email to Doyle Legal, stating that Laila and Elena had “concerns with Rose Testing”, including because no information had been provided on the sampling or testing that was being undertaken by Rose Testing, or whether it would comply with relevant EPA requirements and guidelines, and because Rose Testing had been “commissioned by only one of the [Executors] and one with a personal interest in finding no contamination”. Legal One stated that, in those circumstances, Laila and Elena had engaged EI Australia to undertake a site contamination assessment, in accordance with EI Australia’s proposal, and that EI Australia would be carrying out testing in the coming week.
Around this time, Michael was informed that EI Australia had been engaged, and that Laila and Elena had arranged for them to attend the Property in order to undertake testing. However, on 9 October 2025, Michael refused to allow EI Australia access to the Property. As a result of being denied access on that occasion, EI Australia charged a “remobilisation” fee of $3,000 plus GST.
On 10 October 2025, Doyle Legal informed Legal One that the soil tests conducted by Rose Testing had identified the presence of contaminants at the Property. Doyle Legal enclosed documents from Rose Testing which indicated that three soil samples had been taken (from unidentified locations) and that no asbestos had been found, although other contaminants had been detected.
Michael deposed that, on around 14 October 2025, he called the planning department of Penrith City Council and was told that a person called “Jill” could “advise on issues relating to the remediation of land which is contaminated”; that the Council did not “make appointments for people”; and that Michael should simply “attend the Council and wait to see if anyone is available to see you”. Michael further deposed that when he attended the Council, he went to the reception desk and asked to see “Jill”, explaining that he had received testing results indicating that part of his land was contaminated, and that the woman on the reception desk stated: “Why would you want to dob yourself in? If the land is contaminated, just remediate it”. Michael deposed that: “I was surprised and I left.” This evidence was not challenged. I do not need, for present purposes, to make any finding as to whether or not such a conversation occurred. Even on Michael’s own evidence, his only attempt to approach the Council was at a point in time when Rose Testing had reported that there was no asbestos contamination. Michael did not suggest that, after he had been informed that there was asbestos contamination on the Property, he took steps to inform “Jill” or anyone else at the Council of such contamination. Nor did he suggest that he had taken any steps to inform the EPA of the contamination on the Property.
On 16 October 2025, Legal One wrote to Doyle Legal, reiterating that Laila and Elena regarded Michael as responsible for the dumping of contaminated landfill on the Property. Legal One referred to the report provided by Rose Testing and requested further information as to whether its testing was done in accordance with applicable Australian Standards, from where the samples had been collected, and the precise nature of the contamination at the site.
In this letter, Legal One noted that Rose Testing had advised that the testing which it had carried out was not sufficient either to comply with EPA guidelines or to enable the preparation of a remedial action plan. This reflected a statement made by a representative of Rose Testing to Laila, to the effect that:
“The testing which we are carrying out at the Property and at the direction of [Michael] is not EPA compliant. Further testing will be required, and it will be much more expensive.”
On 17 October 2025, EI Australia attended the Property and performed soil testing.
On 13 November 2025, EI Australia provided a draft report to Legal One (Draft EI Australia Report). The Draft EI Australia Report set out:
the sampling rationale adopted by EI Australia, which involved sampling fill and natural soils at 14 borehole locations, evenly distributed across the fill distribution area, as well as collecting FCS (Fibrous Cement Sheet) samples from the ground surface which were suspected to contain asbestos materials;
the assessment criteria adopted for the investigation, identifying the specific published guidelines of the EPA from which those criteria were adopted;
the soil investigation methodology adopted by EI Australia, including information regarding drilling, sampling, logging, transportation, laboratory analysis and quality control; and
the results of the testing, namely, that asbestos was detected in samples taken from two of the boreholes, and in six FCS fragments found on the surface of the filled area.
Two matters should be noted. First, the material provided by Rose Testing did not contain any similar description of sampling rationale, assessment criteria, or methodology. Secondly, whereas Rose Testing did not (from its investigations) find any asbestos, EI Australia detected asbestos in FCS fragments that were lying on the ground surface in the fill area. I accept the Plaintiffs’ submission that, having regard to those matters, the Plaintiffs were justified in placing little confidence in the results provided by Rose Testing.
The Draft EI Australia Report stated that, on the basis of the findings set out above (emphasis in original):
“The fill distribution area was therefore assigned the preliminary waste classification of General Solid Waste (Non-Putrescible) / Special Waste – Asbestos Waste, with an estimated total volume of approximately 1667 m3 amounting to a total estimated 2667 tonnes of waste materials, subject to moisture content at the time of disposal….”
“VERY IMPORTANT: No soil materials are permitted to be disposed from a site without a final Waste Classification Report, in compliance with EPA waste classification guidelines and NSW Waste Regulations.”
In light of those matters, the Draft EI Australia Report then set out a series of recommendations, which included the following matters.
“Double-density sampling be undertaken to complete a final waste classification assessment of the asbestos-impacted materials, in accordance with the NSW EPA (2022) Minimum Sampling Guidelines for Asbestos in Soils.”
“Sampling for asbestos testing should follow the relevant NEPC [National Environment Protection Council] (2013) guidelines for asbestos investigations.”
“A suitably qualified and experienced environmental scientist must be engaged to prepare a formal Waste Classification Report for the impacted fill using the results of the assessment, in accordance with NSW EPA 2014 Waste Classification Guidelines.”
“The asbestos-impacted fill soil materials are to be removed from the site and disposed to EPA-licensed waste facilities by appropriately licensed waste contractors and transporters. All tipping dockets supplied by the waste facilities are to be retained, to confirm the appropriate (lawful) disposal of the wastes.”
“The LARC [Licensed Asbestos Removal Contractor] must properly track the waste in accordance with the Integrated Waste Tracking Solutions (IWTS) system, to be compliant with NSW EPA requirements.”
“An asbestos clearance inspection and certificate should be completed by a suitably qualified professional (e.g. Safework NSW Licensed Asbestos Assessor) following the removal of the asbestos waste classified fill.”
“Should the asbestos clearance inspection identify the presence of hazardous materials remaining on site, further fill removal works and validation by clearance inspection must be undertaken. This process is to be repeated until the site is deemed to be free of asbestos-impacted soils.”
On 17 November 2025, several days after the date of the Draft EI Australia Report, Laila attended the Property to meet Mr Farrugia, who was the contractor that had brought the contaminated landfill to the site. Also in attendance were Laila’s husband, Mr Farah, and a close friend of Michael, Mr Matt Rogers (who was present at Michael’s request).
There is a dispute regarding what precisely was said at this meeting, and whether any arrangement was reached between Laila and Mr Farrugia regarding removal of the contaminated landfill and, if so, what that arrangement was. It is unnecessary to resolve this dispute because, irrespective of what (if anything) was agreed on 17 November 2025, Laila gave unchallenged evidence that, in mid-December 2025, Mr Farrugia stated that he was not willing to remove the contaminated landfill if he had to comply with the requirements set out in the Draft EI Australia Report (see paragraph [52] below).
For present purposes, it is sufficient to note that, on 17 November 2025, there was a discussion between Laila and Mr Farrugia about the removal of the landfill, that there was reference in that discussion to the results in the Draft EI Australia Report and the fact that EI Australia would be undertaking further testing in order to identify the extent of the contamination, and that Mr Farrugia indicated, at that stage, a willingness to be involved in the remediation process.
On 18 November 2025, Legal One sent an email to Doyle Legal attaching the Draft EI Australia Report. This email referred to the results set out in the Draft EI Australia Report and to the need for “a licensed contractor to work onsite with EI Australia to excavate and dispose of the asbestos-affected soil”. The email further noted that Laila had met with Mr Farrugia, who had indicated that he was willing “to remove the asbestos with EI Australia”.
On 24 November 2025, Legal One sent a further email to Doyle Legal, clarifying that a further fee proposal by EI Australia, in an amount of $18,600 (excl GST), was for conducting “further testing to allow them to narrow down the scope of asbestos-affected soil that requires removal”. Legal One stated that EI Australia would attend the Property on 28 November 2025 in order to conduct this further testing, and concluded as follows:
“Once we receive EI Australia’s results regarding the estimated tonnage of asbestos waste to be removed from the property, we will share [the] same with you and discuss the parties’ options regarding disposal”.
On 11 December 2025, Laila received an email from a representative of EI Australia, which provided a summary of the results of the further testing that had been undertaken. This email indicated that asbestos had been found in a variety of additional locations, and had been found at the surface, at depths of 0.2-0.3m, and at depths of 0.8-0.9m. This email concluded that: “there is no distribution pattern [for the asbestos contamination] – despite our efforts to try to delineate / reduce volumes it is considered to be widespread”.
After receiving this email, Laila had a telephone call with Mr Farrugia later on the same day. She informed him that she had received the further test results from EI Australia and “unfortunately the whole 2,667 tonnes needs to be removed, the asbestos is too widespread and it’s not possible to delineate”. She also stated that the contaminated soil had to be removed “in accordance with the requirements set out in the [Draft EI Australia Report]”. This led to the following exchange:
“Martin: ‘What so you need receipts and that?’
Laila: ‘For the disposal? Yes, of course we do. We need it disposed of legally and in accordance with the EPA rules. It’s all set out in the EI Australia report. I am not having it removed illegally.’
Martin: ‘Well, do you know how expensive that is? I can’t afford to do that. That’ll cost millions. You need to get another test.’”
Laila responded that she was confident in the testing results. She told Mr Farrugia that she wanted the contaminated material to be disposed of legally, so as to satisfy the requirements specified in the Draft EI Australia Report and in order to get “a clear certificate so we can sell the Property”. She concluded the call by telling Mr Farrugia: “Don’t worry about it, I will figure out what our other options are”.
Immediately after her telephone call with Mr Farrugia, Laila sent text messages to Elena informing her that “the whole thing needs to be removed” and that “[a]s expected, Martin [Farrugia] won’t do it”. Elena responded by describing the situation as an “Absolute disaster” and stating “Sell as is” (that is, the Property should be sold without first being remediated).
On 11 December 2025, Doyle Legal sent an email to the Property Lawyers, which was copied to Legal One, and which attached a letter to the Property Lawyers dated 3 December 2025. In this email, Doyle Legal stated that: “[t]he parties have very different expectations as to how long it will take to complete the process of the removal of the contaminated soil and remediation”. In the attached letter, Doyle Legal requested that the Property Lawyers provide advice regarding “which certifications or documents are legally required for removing contaminated soil and conducting remediation”, and regarding “whether any of the Certificates need to be annexed to the COS [Contract of Sale for the Property]”.
On 11 December 2025, the Property Lawyers responded, stating that there were “two options” available to the Executors, as follows:
“1. The parties could list the property for sale and provide disclosure to prospective purchasers that the land is contaminated. Test results should be provided to our office to satisfy any enquiries from prospective purchasers.
- Carry out remediation prior to sale.
If remediation is carried out and further testing reveals that the land is no longer contaminated, then the results of the testing should be provided confirming that no contamination exists.
No disclosure will be required in the contract if the land has been remediated and the results prove there is no contamination.”
On 12 December 2025, Laila received a quote from a licensed contractor, JPA Constructions Pty Ltd, for removing the asbestos-affected soil at a rate of $310 per tonne.
On 16 December 2025, Legal One advised Doyle Legal that although Mr Farrugia had initially agreed to remove the asbestos-affected soil from the Property, he had subsequently, after being informed that EI Australia had confirmed that it was necessary for about 2,600 tonnes of soil to be removed, “declined to undertake the removal, particularly if certification was required”.
On the same date, Legal One sent an email to the Property Lawyers and Doyle Legal, stating that Laila and Elena nominated the first of the options set out in paragraph [56] above (namely, for the sale of the Property to proceed without the land first being remediated, but with disclosure to prospective purchasers of the fact of contamination). The reason for this was the cost of remediation. The email noted that Laila and Elena had made enquiries with licensed contractors, who had provided indicative pricing of $310 per tonne (equating to a cost in the order of $806,000 for the removal of 2,600 tonnes), and that they were “not in a financial position to meet these costs”. The email concluded as follows: “Please confirm your advice to move on this basis.”
On 16 December 2025, EI Australia issued a further site contamination assessment in respect of the Property (Final EI Australia Report). This report again set out the sampling rationale and assessment criteria adopted by EI Australia, by reference to relevant EPA guidelines. The Final EI Australia Report described the further testing which had been undertaken, which included collecting 18 FCS fragments, including some from the ground surface and some from the soil, and taking soil samples from 21 test pit locations, including four locations positioned in the cardinal directions around the two boreholes where asbestos had previously been detected. The test results showed asbestos present at multiple locations around the landfill site. The Final EI Australia Report set out conclusions and recommendations in similar terms to those set out in the Draft EI Australia Report (see paragraphs [43]-[45] above).
On 17 December 2025, Legal One provided Doyle Legal and the Property Lawyers with a copy of the Final EI Australia Report. In cross-examination, Michael acknowledged that he received a copy of this report, but that he “didn’t read it” and “didn’t seek advice about it” from Doyle Legal, because it “wasn’t [his] report”.
In the email attaching the Final EI Australia Report, Legal One requested an “urgent response” from Doyle Legal to its email of the previous day, in which Legal One had stated that Laila and Elena opted for the sale of the Property to proceed, without the land first being remediated. Legal One requested that Doyle Legal confirm that the Executors would proceed on this basis.
On 14 January 2026, Mr Farrugia commenced, on Michael’s instructions, undertaking works to remove the contaminated landfill. Those works were commenced without the knowledge or agreement of the other Executors, in circumstances where Michael was aware that the other Executors had stated that they wanted the sale of the Property to proceed without remediation steps being taken (and where Michael had not provided any response to their requests to confirm whether he agreed).
On 19 and 21 January 2026, Legal One sent further communications to Doyle Legal and the Property Lawyers, requesting an “urgent response” to their previous requests for confirmation of Michael’s position on whether the sale of the Property should proceed without, or following, remediation. On 21 January 2026, Doyle Legal responded to this request, acknowledging that Laila and Elena had “expressed their choice to sell the property with appropriate disclosure”, and indicating that a response would be provided on behalf of Michael as soon as he provided instructions. On the same day, the Property Lawyers confirmed that they would await “instructions from all parties” and then “proceed accordingly”.
On 22, 28 and 29 January 2026, Legal One sent a number of follow-up requests to Doyle Legal regarding Michael’s position on the sale of the Property. In the last of these emails, Legal One stated that, if no response was received by 30 January 2026, the Plaintiffs would bring this delay to the Court’s attention and seek “orders requiring you to explain the reasons for the delay by way of affidavit”.
On 29 January 2026, Doyle Legal responded, again acknowledging that Laila and Elena had expressed a preference for the Property to be put on the market without remediation having first occurred, and with the contamination being disclosed. The letter continued as follows:
“Our office has been informed that Martin Farrugia has commenced the rectification process. Our client will provide our office with the progress.
Our client is of the opinion that now that rectification has commenced, it should be completed. Upon completion he will organise for Rose Testing [to] do the follow up soil contamination testing and provide a Certificate stating the condition of the soil.”
The letter did not provide any information regarding when the “rectification” works had commenced, what the scope or nature of those works was, or when they were expected to be completed.
On 5 February 2026, the Property Lawyers wrote to Legal One and Doyle Legal, stating that they had not taken steps to prepare a contract for the sale of the Property and did not intend to do so, until they were instructed by all of the Executors that the Property was ready for sale. The Property Lawyers requested that the Executors “confer and advise what course they wish to take”, and concluded by stating that:
“We cannot proceed until there is consensus between the parties or an order of the Court directing the sale of the property in its current state."
“It is unacceptable that your client continues to make unilateral decisions concerning the property – particularly decisions that materially affect the sale process – without notice to, or consultation with, our clients. This pattern of conduct has persisted for some time, has effectively excluded our clients from meaningful involvement, and is causing unnecessary delay in progressing the sale.”
“[Michael] agrees that the property should be put on the market whether the soil is still contaminated or clear of contamination. If the soil is contaminated, Mr Anjos can prepare the Contract for Sale with the proper disclosures and provide the COS [Contract of Sale for the Property] to the Agent. If the soil contamination certificate concludes that there is no contamination again, Mr Anjos is to prepare the Contract for Sale and provide it to the agent.”
“1. a copy of the scope of works to be carried out by Martin Farrugia or, if none exists, a written description of the scope of works including the area over which, and the depth to which, the works will be carried out;
- a copy of any contract, terms and conditions of engagement, email or any other form of communication that records the terms upon which Martin Farrugia has been engaged to carry out remediation works;
- a copy of the works program, or, if none exists, the dates on which each stage of the works has been completed or is expected to be completed;
- whether Mr Farrugia has been provided with a copy of the Site Contamination Assessment report of EI Australia or its draft;
- a copy of any final Waste Classification Report that has been prepared for the Property in compliance with EPA waste classification guidelines and NSW Waste Regulations together with whether [sic] the information about the qualifications and experience of the person(s) who prepared it (such as a CV). If no such report was prepared, please explain why;
- a copy of the results of testing of any further sampling undertaken on the Property on your client’s (direct or indirect) instructions since the Rose Testing in September 2025. If no such sampling has been undertaken, please explain why;
- whether any friable asbestos has been found and, if so, please provide a copy of any report recording this;
- whether the landfill is being removed by a suitably qualified Class B LARC [Licensed Asbestos Removal Contractor] in accordance with SafeWork NSW Code of Practice – How to safely remove asbestos (SafeWork 2022) and, if so, who that is and please provide a copy of the licence together with the licence number. If the landfill is not being removed by a Class B LARC, please explain why;
- whether the landfill is being and will be disposed to a EPA-licensed waste facility, all tipping documents supplied by the waste facilities are being and will be retained to confirm the appropriate (lawful) disposal of the landfill and the landfill is being tracked in accordance with the Integrated Waste Tracking Solutions (IWTS) system. If so, please provide documents which establish this. If not, please explain why;
- whether the remediation works require Development Consent. If so, please provide a copy of the development application and the development consent. If not, please share a copy of any advice that Development Consent is not required or explain the basis for that advice; and
- whether an asbestos clearance inspection and certificate is intended to be sought from a suitably qualified professional SafeWork NSW Licensed Asbestos Assessor following the remediation works and, if so, please identify the person and provide information that establishes their credentials. If no such inspection and certificate is to be sought, please explain why.”
“To Whom it May Concern,
This letter is to confirm that I, Martin Farrugia, will remove ALL soil that I brought onto the property, 34 Cross Rd, Orchard Hills. I will then remediate the front paddock to it’s [sic] previous condition, as discussed with Laila when she arranged a meeting at the property with me in November 2025.”
The above statement is the only evidence regarding the scope of the works being undertaken by Mr Farrugia.
On 25 February 2026, Doyle Legal responded to Legal One’s letter of 16 February 2026, stating that, as regards the matters in paragraphs (3), (5), (6), (7), (8), (9), (10) and (11) of that letter (see paragraph [71] above), “given the stage Martin Farrugia is at, none of those steps have been taken”. (There is no evidence, or suggestion, that any of those steps have been taken in the period of almost three months since the date of this letter, despite there being evidence that, by the time of the hearing, the works being undertaken by Mr Farrugia were almost complete.)
In relation to the remaining requests in Legal One’s letter, Doyle Legal responded as follows:
as regards paragraph (1), the only information provided to Michael regarding the scope of the remediation works was Mr Farrugia’s letter of 21 February 2026 (set out in paragraph [72] above);
as regards paragraph (2), Michael has not entered into any contract with Mr Farrugia in relation to the works; and
as regards paragraph (4), Michael has not provided Mr Farrugia with a copy of either the Draft EI Australia Report or the Final EI Australia Report.
On 10 March 2026, Legal One wrote to Doyle Legal, stating that Mr Farrugia had previously indicated that he would not carry out remediation work if certification was required, and advising that Laila had also not given Mr Farrugia a copy of EI Australia’s reports.
Accordingly, it appears that – aside from the limited summary of EI Australia’s findings which Mr Farrugia has previously received from Laila (see paragraph [52] above) – he has been undertaking works at the Property in circumstances where he is unaware of EI Australia’s findings regarding the extent or location of contamination, and unaware of their recommendations regarding the remediation works.
On 27 March 2026, Laila and Elena filed their application for the revocation of the grant of probate and the appointment of an independent administrator.
The Plaintiffs tendered a signed consent to act as independent administrator from Ms Monica Ross-Maranik, dated 12 March 2026. Ms Ross-Maranik is a solicitor of more than 30 years’ standing, and an Accredited Specialist in Wills & Estates.
At the hearing, Michael gave evidence that he had recently been informed by Mr Farrugia that the removal of soil would be completed by around the date of the hearing. He deposed that he had arranged for Rose Testing to test the remaining soil at the Property shortly after this work is completed.
Before turning to the substantive issues raised by the application, it is necessary to deal with two procedural matters.
First, Pt 78 r 48 of the Supreme Court Rules 1970 (NSW) provides that, if there is a defendant, proceedings for the revocation of a grant of probate “must be commenced by statement of claim”. The present application is, however, brought by way of a notice of motion.
The Plaintiffs sought an order pursuant to s 14 of the Civil Procedure Act 2005 (NSW) dispensing with this requirement.
In support of that application, the Plaintiffs referred to the observations of Leeming JA (with whom Gleeson and Payne JJA agreed) in Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 205 at [36]. His Honour there said that “it remains essential to bear steadily in mind ‘the basic principle that the rules of the court are to be the servant of justice, not its master’” (quoting Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [38]). His Honour continued as follows:
“It is easy to envisage situations where the overriding purpose in s 56 of the Civil Procedure Act is served by non-compliance with the rules. The legal system is highly complex, and its procedural rules are quite different from the rules of, say, a game of chess. One reason for this is that a court is empowered to dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case: Civil Procedure Act, s 14 (and, as Knight Bruce and Turner LJJ said in Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93 at 95; 44 ER 324 at 325, there was also inherent power to dispense with compliance with the rules). Another reason is that although framed as ‘rules’, departure from them is not unusual, and need not be accompanied by any impropriety whatsoever. …
None of the foregoing is to be understood as sanctioning departure from the rules which serve as the default requirements in civil litigation. The starting point of determining what is to occur in order to comply with a litigant’s obligation to give effect to the overriding purpose will be compliance with the rules. …”
Michael did not, at any time from the filing of the Plaintiffs’ application through to the completion of closing addresses, contend that the application should not be entertained, or should be dismissed, by reason of any non-compliance with the requirements of Pt 78 r 48 of the Supreme Court Rules. He did not advance any submissions in opposition to the relief sought by the Plaintiffs dispensing with such requirements. He did not, at any time, raise any issue that the matter should proceed by way of pleadings.
The purpose of the requirement for a statement of claim is to put defendant(s) on notice of the allegations of material fact upon which the plaintiff relies in seeking the revocation of a grant of probate. In the present case, those matters were clearly identified in the affidavit of the Plaintiffs’ solicitor, which was filed at the same time as the Notice of Motion, and which was accompanied by an extensive exhibit, including correspondence between the parties’ lawyers that set out, in detail, the issues between them.
There was no submission by Counsel for Michael that his client did not understand the basis of the application, or was taken by surprise by any of the matters on which the Plaintiffs relied in written or oral submissions in support of their application. Instead, the matter proceeded, without any such objection being raised, to a hearing on the substantive application, with Laila and Michael being cross-examined, and the parties making submissions on the matters in dispute between them.
In those circumstances, I am satisfied that the grant of the relief sought under s 14 of the Civil Procedure Act will facilitate the just, quick and cheap resolution of the real issues in the proceeding, and is consistent with the objects of case management and the dictates of justice (Civil Procedure Act, ss 56-58). Accordingly, I will make an order dispensing with the requirement for compliance with Pt 78 r 48 of the Supreme Court Rules.
Secondly, Laila and Elena sought an order dispensing with requirement for publication of a notice of intention to make this application (see Supreme Court Rules Pt 78, rr 3 and 57), on the basis that all of the beneficiaries of the Estate are parties to the proceeding: Immuto Fleur Nominees Pty Ltd v Archura Capital Pty Ltd [2024] NSWSC 1159 at [48]-[50] (Cavanagh J). Counsel for Michael did not make any submissions in opposition to this application. In particular, there was no suggestion, and there is no basis in the evidence to conclude, that there is any other person who would be interested in the application. I accept that such relief is appropriate.
There was no dispute about the principles governing the revocation of a grant of probate and the appointment of an independent administrator. Senior Counsel for Laila and Elena provided, in written submissions, a detailed statement of those principles and Counsel for Michael did not disagree with, or qualify, any aspect of that summary.
The Court has inherent jurisdiction to revoke a grant of probate: Mavrideros v Mack (1998) 45 NSWLR 80 at 101-3 per Sheller JA (with Priestley JA and Beazley JA (as Her Excellency then was) agreeing) [1998] NSWCA 286, referring to Bates v Messner (1967) 67 SR (NSW) 187. The existence of such a power is assumed in s 40D of the Probate and Administration Act 1898 (NSW) (see also ss 81(1) and 90(2)).
A grant of probate in common form is in the nature of an interlocutory judgment, and “it is open to a Court, exercising probate jurisdiction, to revoke the grant, at any time, upon a proper case being established”: Estate of Philip Mack (Deceased) [2022] NSWSC 1629 at [17]-[18] (Hallen J), and the cases there cited.
A person applying for the revocation of a grant of probate must be able to show that his or her rights will, or may, be affected by the outcome of the proceedings. Generally speaking, an interest sufficient to entitle a person to oppose a grant of probate is sufficient to entitle the same person to apply for a revocation of a grant: Estate Kouvakas; Lucas v Kouvakas [2014] NSWSC 786 at [212]-[213] (Lindsay J); Lester v Brown [2022] NSWSC 716 at [100] (Hallen J). Laila and Elena, as executors and beneficiaries under the Will, plainly meet this standing requirement (and there was no contention otherwise).
In Estate Wight; Wight v Robinson [2013] NSWSC 1229, Lindsay J observed that the grounds upon which the Court may, in its discretion, revoke a grant of probate (especially a grant in common form) are not closed (at [23]), and that it is not necessary that there be any finding of misconduct or default (at [28]). In that case, his Honour determined that the discretion should be exercised to revoke a grant of probate in circumstances where there was a bona fide dispute which had affected the due administration of the estate and was likely, if not resolved, to continue to do so, and where the working relationship between the plaintiff and the defendant necessary to the due administration of the estate had broken down, frustrating the process of administration (at [28]).
In Lester v Brown at [110]-[111], Hallen J observed as follows:
“The guiding principle is whether the administration of the estate is being carried out properly: Lucas v Konakas at [211] (Lindsay J). Put another way in the circumstances of this case, when looking at the welfare of the beneficiaries named in the Will of the deceased, is it in their best interests to replace two of the executors?
The primary concern of the Court is to ensure that the estate is efficiently and properly administered according to the terms of the will. In support of this proposition, I need only refer to Mavrideros v Mack (1998) 45 NSWLR 80, at 108 (Sheller JA, with Priestley and Beazley JJA agreeing) …”
In Lester v Brown, Hallen J determined that a grant of probate to the plaintiff and the defendants should be revoked in circumstances where the “apparent breakdown in the relationship between the parties has placed the administration of the deceased’s estate in jeopardy”, such that “the administration, and the distribution, of the estate, has completely stalled” (at [116]-[117]).
The power to revoke a grant of probate may be exercised in circumstances where there is inexcusable delay or inefficiency in administering the estate: (Mavrideros at 107-108), including where there is “unjustified delay and ineffective co-operation among joint executors and trustees” (Walker v Walker [2016] NSWSC 92 at [22] (Slattery J)).
In Schaverien v Jones [2007] NSWSC 1429 at [2]-[4], Bryson AJ addressed the principles that apply in circumstances where personal conflicts are impeding the proper administration of the estate, as follows:
“In Bates v Messner Asprey JA said at 191:
‘The real object which the Court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the Court has been induced to entrust the office of executor.’
The power was stated quite broadly by Jeune P in In the Goods of Loveday (1900) P 154 at 156 in a passage which was set out and approved in Mavrideros v Mack by Sheller JA at pp 101-102.
‘After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interest of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient. If the Court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administered the estate, and if it turns out that the persons who were appointed will not or cannot administer, I do not see why the Court should not revoke an inoperative grant and make a fresh grant.’
While the conduct of the executor and ability for the duties of executorship receive close attention the jurisdiction is not punitive. The considerations are pragmatic and relate to the effective and efficient administration of the estate and the interest of the persons beneficially entitled. It is necessary that arrangements made by the existing grant of probate should for some sound reason be shown to be impracticable so that the Court should no longer give its authority to them. Cases of this kind will often involve impeachment of the conduct of an executor, but that is not the primary focus, and a clear demonstration of shortcomings in an executor is not necessarily part of the ground on which the Court acts. In this case, where personal conflicts brought estate administration to something near paralysis, there is a need for an expedient solution, even if that solution may be less than perfectly fair to someone who is affected by it.”
Where probate has been granted to more than one person, and where one, or more, of the executors to whom probate has been granted is to be removed involuntarily for proper reasons, the usual practice of the Court is to recall, and revoke, the original grant, and make a fresh grant of administration, with the deceased’s Will annexed, to the remaining executor or executors. The revocation of the grant is a revocation in toto, not a partial revocation, and the fresh grant to the remaining executor entirely supplants the former grant: Lester v Brown at [112]; Estate of Phillip Mack (Deceased) at [33]-[35].
Where a grant of probate is revoked, the Court may appoint an administrator under s 74 of the Probate and Administration Act: see Kuitkowsk**i v Tream [2023] NSWSC 145 at [19]-[21] (Robb J). The Court also has power, under s 73 of that Act, to appoint an interim administrator: see Ritossa v Ritossa [2023] NSWCA 14 at [40]-[42] per Bell CJ (with Gleeson and White JJA agreeing).
In circumstances where a grant of probate is revoked by reason that the orderly administration of the deceased’s estate has been disrupted, with the consequence that the completion of the administration, and the distribution, of the estate has stalled, the question that arises for consideration is “what order should be made to ensure the timely administration of the estate”: Lester v Brown at [118].
In Ritossa, the Court formed the view that the relationship between the parties (who were brothers) was not such as to lend itself to any agreement between them regarding the administration of the estate, with the result that “necessity dictated that an independent person be invested with authority to manage the estate and its principal asset on an ongoing basis” (at 45]).
The matters set out in paragraphs [14]-[80] above establish that there has been a complete breakdown in the relationship between the Executors, such that they are unable to co-operate or come to any consensus in respect of steps that need to be taken in the administration of the Estate, with the result that the completion of the administration, and the distribution, of the Estate has stalled.
The Consent Orders put in place a regime which required the Executors “to take such steps and to do such things as the Property Lawyers recommend in connection with any Contamination” on the Property, in order to ready the Property for sale, and thereby realise the last remaining asset of the Estate and to distribute the proceeds. The Executors have been unable to do so.
In particular, the Property Lawyers advised that the Executors should engage a suitably qualified environmental consultant to carry out tests on the Property for any contaminants. The Executors were unable to agree on the identity of the consultant to be engaged or the scope of the testing to be undertaken.
Laila and Elena attempted to obtain Michael’s agreement to the appointment of EI Australia, but he – without seeking or obtaining their consent – went ahead and engaged Rose Testing to undertake testing at the Property. He did not provide Laila and Elena with any scope of works from Rose Testing, despite repeated requests for this information, and Laila was informed by a representative of Rose Testing that its testing did not comply with EPA guidelines. In those circumstances, Laila and Elena understandably lacked confidence in the testing being undertaken by Rose Testing, and engaged EI Australia. As a result, separate reports have been commissioned by different Executors from different organisations (but only one set of which appear to comply with EPA guidelines).
The Property Lawyers also advised that the Executors should follow the recommendations in the report of the environmental consultant. However, Michael neither read nor sought advice on the Final EI Australia Report, and effectively ignored it.
In addition, the Property Lawyers recommended that that the Executors engage the services of a suitably qualified environmental consultant to prepare a remediation action plan. The Executors have not done so, and no such plan has been prepared.
The Property Lawyers subsequently advised that the Executors could either carry out remediation works or proceed with a sale of the Property, without having remediated the site, but with disclosure of the contamination. The Property Lawyers requested that the Executors reach a consensus and provide instructions. They were unable to do so. Laila and Elena indicated that they wanted to proceed with the option of a sale without remediation, but with disclosure. Despite knowing this to be the case, and without having expressed any other view, Michael unilaterally instructed Mr Farrugia to commence remediation works, without informing his fellow Executors, and then maintained that these works should be completed before any sale occurred.
Laila and Elena have also made clear that their position is that any remediation work should be conducted in accordance with the recommendations in the Draft and Final EI Australia Reports, including as regards appropriate documentation and certification. There is no evidence that Michael has taken any steps to ensure that those recommendations are being implemented by Mr Farrugia. Michael has not even provided Mr Farrugia with a copy of those reports. Laila and Elena have sought, but have not been provided with, any details of the scope of the works being undertaken by Mr Farrugia.
Michael submitted that, in circumstances where Mr Farrugia’s work was almost complete and further testing would soon be undertaken by Rose Testing (and any further testing could also be undertaken by EI Australia), the application should be adjourned “for a period of say six weeks”, in order to see whether the Executors were able to reach agreement on whether the sale of the Property could now proceed.
In light of the factual background set out above, it is highly unlikely that any such consensus will be reached. Laila and Elena are unlikely to accept the adequacy of the work undertaken by Mr Farrugia, or the adequacy of any further testing to be undertaken by Rose Testing. Similarly, Michael is unlikely to accept, on the basis of any findings or recommendations of EI Australia (assuming he reads them), that further steps need to be undertaken in respect of the remediation of the Property, particularly if those steps were to involve any significant expense.
Even if the Executors were able to reach consensus regarding whether the works undertaken by Mr Farrugia had adequately addressed the issue of contamination, there are likely to be further matters on which they disagree, such as the extent of any documentation or certification that is required regarding the remediation works, including the disposal of the contaminated material; the extent of any disclosure that should be made; and the reserve price for the sale of the Property (which, pursuant to order 6 of the Consent Orders, the Executors must “agree in advance of the First Auction”).
Further, it is likely that there will continue to be disputes between, on the one hand, Laila and Elena and, on the other, Michael, regarding whether the presence of the contaminated landfill, which Michael caused to be brought onto the Property, has caused loss to the Estate and whether he is liable for any such loss.
Those matters support a conclusion that the Court should, in order to ensure the due and proper administration of the Estate, and having regard to the interest of the parties beneficially entitled thereto, revoke the grant of probate and appoint an independent administrator to ensure the timely completion of the administration.
Michael advanced two main objections to such relief.
The first objection was that the appointment of an independent administrator would result in additional costs being borne by the Estate. In support of this submission, reference was made to:
the hourly rates specified for Ms Ross-Maranik and her staff in the Consent to Act; and
the extensive documentary record relating to the issues which have arisen with respect to the sale of the Property, as set out in the Court Book, which Ms Ross-Maranik would presumably need to review.
The extent of the documentary record exposes the difficulty with this submission. Much of that record consists of lengthy legal correspondence, sent at regular intervals since the Consent Orders were made, but with little progress to show as a result of the parties’ opposing positions repeatedly being ventilated. During that time, significant costs must have been expended by the Executors on their own respective sets of lawyers, as well as costs being expended on the Property Lawyers. While the appointment of an independent administrator, who is herself a solicitor, would mean that fees and expenses would become payable in respect of the work undertaken by her, there is no basis to conclude (nor is it obvious) that such costs would exceed the substantial costs that have been, and continue to be, expended on an administration that has effectively stalled since August last year.
The second objection was that it was not apparent how the appointment of an independent administrator would work, given that the Property was in the names of the Executors and having regard to the terms of the Consent Orders, which required the Executors to take certain steps. Further, Counsel for Michael submitted that there was no power to set aside the Consent Orders, particularly in circumstances where those orders were noted as having been made in settlement of the dispute between the parties.
The Property is presently registered in the names of each of Laila, Elena and Michael in their capacity as Executors of the Estate (with the Property being the sole remaining asset of the Estate). In circumstances where the grant of probate is revoked, and an independent administrator is appointed, the independent administrator will be able to make an application for transmission of the Property into her name.
Laila and Elena do not submit that the Consent Orders should be set aside. Rather, they contend that certain of those orders should be discharged upon the making of an order revoking the grant of probate and appointing an independent administrator, by reason that such orders will no longer be appropriate having regard to the material change in circumstances.
Given that a grant of probate is in the nature of an interlocutory order, which may be revoked at any time upon a proper case being established (see paragraph [92] above), it must follow that orders made regarding the administration of the estate by the executors to whom probate has been granted are likewise interlocutory in nature.
That conclusion is reinforced by the terms of the Consent Orders, which stood over the proceeding for further directions and granted the parties “liberty to relist on 3 days’ notice up until the Property has been sold and the sale proceeds distributed to the beneficiaries” (order 11A). Accordingly, the Consent Orders contemplated that there may be a need to revisit, in this proceeding, the terms of those orders, and the regime established by those orders regarding sale and distribution.
Issues may arise as to whether an interlocutory order, which has been entered by consent, should be set aside, varied or discharged, depending on the terms of any underlying contractual agreement between the parties. However, Counsel for Michael did not advance any submission that the setting aside of the Consent Orders would be contrary to any such agreement, and there was no evidence of the terms of any such agreement. In any event, interlocutory orders can be varied by the court, even where they have been made as the result of a binding contract between the parties: R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 391 per Woodward and Foster JJ.
Interlocutory orders “create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order”: Bajramovic v Calubaquib [2015] NSWCA 139 at [40] per Emmett JA (with whom Leeming JA and Adamson J agreed). Although, depending on the circumstances, it may be an abuse of process to relitigate an issue which has previously been determined or resolved by the making of interlocutory orders, it “would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances”: ibid at [40]-[41], referring to the often-cited observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 214 ALR 44 at 46.
Michael did not contend that there was any abuse of process in the present case.
In circumstances where a proper case has otherwise been made for revoking the grant of probate and appointing an independent administrator, I do not accept Michael’s submission that the fact that, following such an appointment, certain aspects of the interlocutory regime established by the Consent Orders would no longer be capable of operating, or would no longer have relevance, is a reason for refusing to grant the relief sought. Instead, that is a reason to make orders, consequential upon the appointment of the independent administrator, varying the interlocutory regime in order to take account of this material change of circumstances.
The ancillary relief sought by the Plaintiffs is of this nature. The Consent Orders which the Plaintiffs have identified as orders that will or should have no continuing operation following the appointment of an independent administrator, and should therefore be discharged, are as follows:
order 2, which requires the Executors to allow the Agent to have access to the Property;
order 5, which requires the Executors, inter alia, to “do such things as the Property Lawyers recommend in connection with any Contamination” of the Property;
order 6, which requires, inter alia, that the Executors agree on a reserve price for the Property and to do so “informed by” a valuation of the Property that was performed in June 2025 (and therefore before the asbestos contamination was detected);
order 7, which addresses the order and priority in which the proceeds of the sale should be distributed, and which makes no allowance for payment of the fees and expenses of any independent administrator, and requires distribution to be effected from the Property Lawyers’ trust account;
order 8A, which required Michael to meet “in the first instance” certain costs associated with the Property; and
order 11A, which gave the Executors liberty to apply up until the time when the sale and distribution had been completed in accordance with the Consent Orders.
For reasons given above, I am satisfied that the administration of the Estate has effectively stalled, due to disagreements between the Executors regarding the management and sale of the Property, and that, in order to ensure the due and proper administration of the Estate, and having regard to the interests of the parties beneficially entitled thereto, the Court should revoke the grant of probate and appoint an independent administrator to ensure the timely completion of the administration. I am also satisfied that, consequential upon such orders being made, the Court has power to discharge, and should discharge, orders 2, 5, 6, 7, 8A and 11A of the Consent Orders.
In addition, I am satisfied that Ms Ross-Maranik is a suitably qualified and experienced person to take on the role of independent administrator (and I note that Counsel for Michael did not advance any submission to the contrary).
Section 64 of the Probate and Administration Act provides that every person to whom a grant of administration is made shall execute a bond, but s 65 gives the Court power to dispense with this requirement. Laila and Elena sought such dispensation, and Counsel for Michael did not advance any submission as to why such relief should not be granted. I am satisfied that, as all interested parties are aware of the proceeding and are aware of the application, it is appropriate for the orders sought by Laila and Elena to be made without the need for an administration bond: Immuto Fleur Nominees at [52]-[53].
Finally, Laila and Elena sought an opportunity to be heard on costs following the determination of their application. I will accordingly make directions for them to make submissions in support of any order they seek in respect of the costs of their application, and for Michael to reply, with the intent that any issue as to costs be determined on the papers.
For the reasons set out above, the Court makes the following orders and directions:
Order that the grant of probate of the estate of the late Elda Farry, deceased, made on 16 July 2019, be revoked.
Order that letters of administration of the estate of the late Elda Farry, deceased, with the will dated 15 August 2018 attached, be granted to Monica Ross-Maranik of Keypoint Law (Independent Administrator).
Order that within 7 days of the date of these orders, the Plaintiffs and the Defendant:
(a) transfer or cause to be transferred to the Independent Administrator all funds of the late Elda Farry, deceased, held by any of them or under their control; and (b) provide to the Independent Administrator copies of all statements of account for each bank account conducted by or on behalf of the Plaintiffs and the Defendant in their capacity as executors of the will of the late Elda Farry, deceased.
(a) the requirement for an application for the revocation of a grant of probate to be commenced by statement of claim; (b) the requirement for publication of notice of intention to make this application; (c) the further requirements of Pt 78 of the Supreme Court Rules 1970 (NSW) in relation to the application for these orders; and (d) the need for an administration bond or sureties.
(a) by 5.00pm on 26 May 2026, the Plaintiffs serve, and provide to the Associate to Nixon J, the orders sought by the Plaintiffs in respect of the costs of their application, together with any submissions (limited to three pages) and evidence in support of such orders; and (b) by 5.00pm on 2 June 2026, the Defendant serve, and provide to the Associate to Nixon J, any competing orders sought by the Defendant in respect of costs, together with any submissions (limited to three pages) and evidence in support of such orders; (c) with the intent that the issue of the costs of the application be determined on the papers.
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Farah
Farry
(1988) 214 ALR 44
(2018) 98 NSWLR 493
(1998) 45 NSWLR 80
(1988) 18 FCR 389