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File Number(s): (2025/00373983)

Publication restriction: No

EX TEMPORE JUDGMENT

1. Lynette Suzanne Timmis died on 26 May 2024. Her last will dated 11 March 2020 (“the Will”) gave the whole of her estate to her two sons, the plaintiff and the defendant, and appointed them as co-executors of her estate. Probate of the deceased's Will was granted to the plaintiff and the defendant jointly on 3 July 2025. These proceedings arise from the failure of the plaintiff and the defendant to cooperate as co-executors.

2. By his Statement of Claim the plaintiff sought the revocation of probate and the appointment of an independent solicitor, a Mr Kurt Topper of Heard McEwan Legal, as an independent administrator for the estate. The defendant initially resisted that course. But at a hearing held on 24 April 2026, after submissions from the plaintiff and after extensive discussions with the Court, he accepted that an independent administrator should be appointed. The defendant objected to the appointment of the nominee of the plaintiff, Mr Topper a legal practitioner experienced in succession law and practice. The Court then appointed Ms Monica Ross-Maranik, another experienced legal practitioner, as independent administrator. The defendant sought to resile from the consent he had given to the appointment of an administrator but the Court declined to allow him to do so.

3. The plaintiff had nominated Mr Topper because of his proximity to certain estate property. The sole real estate in the estate is in Moss Vale and Mr Topper practises from Wollongong. The Court ultimately took the view that an experienced practitioner from Sydney was equally able to access the property as required to facilitate its sale.

4. The estate consisted principally of the real estate in Moss Vale, a bank account with Bendigo Bank and various personal effects. The estate has an estimated sworn value for probate purposes of $1,283,994.78.

5. The parties are now at issue in relation to two others matters: the costs of the Summons including whether a specified gross sum should be fixed instead of assessed costs, and the disposition of a Notice of Motion filed 22 June 2026 by the defendant seeking various forms of relief (“22 June Motion”).

6. The defendant has not been legally represented throughout these proceedings. Although the 22 June Motion claims an extensive range of relief, only limited parts of it are justiciable by the Court. These are identified later below.

The Costs of the Statement of Claim

7. As to the issue of the costs of the Statement of Claim, the plaintiff says that these costs should be borne out of the defendant's share of the estate because of the defendant's generally uncooperative conduct of the administration of the estate and his unreasonable resistance to the appointment of an independent solicitor to administer the estate after the breakdown of the relationship between the two co-executors. The defendant disputes that contention and says that the plaintiff should pay the defendant's costs of the proceedings.

8. To adjudicate this issue a little more background is required. The childhood of the plaintiff and the defendant seems to have been marred by tragic and traumatic family events that need not be elaborated in these reasons, suffice it to say that frequently throughout his submissions to the Court the defendant referred to the fact that he has "complex PTSD" arising out of the way that he was treated within the family when he was young by both the deceased and the plaintiff. He presented to the Court as a man who was fragile and vulnerable but bravely attempting to deal with the issues that troubled him. In contrast, the Court always dealt with the plaintiff through his legal representatives.

9. It is not possible to understand the dynamic of these proceedings without some short discussion of the personal interactions between the plaintiff and the defendant during the administration of the estate. In 2024, about the time of the death of the deceased, the plaintiff was diagnosed with terminal lung cancer. He wishes to provide for his wife and family. That diagnosis therefore not surprisingly spurred the plaintiff into seeking for the estate administered as expeditiously as possible. That sense of urgency has clearly been a motivation for the correspondence initiated on his behalf by his solicitors and the conduct of these proceedings by his counsel. The plaintiff at all relevant times has lived in the Northern Territory and is not in a practical position to do much physical work to help administer the estate.

10. On the other hand, the defendant, either because of the plaintiff's unavailability to help, or because he wished to volunteer for the task, undoubtedly did much of the physical work involved in the administration of the deceased's estate and was closely involved in making the funeral arrangements for the deceased. This was a convenient division of labour, because the plaintiff was in the Northern Territory, and the defendant was at the Moss Vale property.

11. The communications between the solicitors for the plaintiff, Highlander Law, and the defendant show patterns that readily demonstrate the defendant’s unfitness to continue as a co-executor with the plaintiff.

12. The plaintiff's solicitors write well-drafted, detached, professional correspondence, which is neither aggressive nor inflammatory in nature. Their letters are the kind the Court prefers to see in litigation such as this. In contrast, throughout the administration of the estate the voluminous flood of email correspondence from the defendant is at times measured, but at many other times unacceptable at every level. One example of this will suffice. In his oral submissions the defendant said to the Court:

“I did communicate with Highlander Law [the solicitors for the plaintiff] very gently. They have just selected bad emails where I was struggling, okay".

13. The Court then drew to the defendant's attention an email which he had sent to Highlander Law on 14 May 2026 at a time after the plaintiff's cancer had advanced. Referring to the plaintiff’s cancer diagnosis when dealing with estate administration issues, the email ends with the words:

"Is he dead yet??? Tick-tock!".

14. During submissions when the Court raised the terms of this email with the defendant – suggesting as it does the defendant is waiting for the plaintiff to die soon – the defendant's explanation for it was:

“I spent a year of emails trying to get mediators, being gentle…by August, it got to the point where I was - being triggered".

15. Such correspondence celebrating the prospective death of the plaintiff was never acceptable in any form and shows an outlook completely incompatible with the proper discharge of the duties of an executor. After an interchange with the Bench the defendant ultimately agreed that what he had said in this email was "over the top".

16. The defendant’s unfitness to continue as a co-executor with the plaintiff is also demonstrated by the defendant's ready willingness to attribute the worst possible motives to the plaintiff on occasions when the evidence does not warrant it. The defendant in submissions pointed to the plaintiff's evidence where the plaintiff says, "On 28 May 2024 following the death of the deceased I arrived in the Southern Highlands to work with the defendant", and the defendant said of this that the plaintiff had "perjured himself". Whatever the differences of view might be about who assisted most in preparing the estate after the death of the deceased, an assertion of perjury was hardly warranted on the evidence.

17. The other and final theme in the evidence as to the defendant’s fitness as a co-executor, is that the defendant's correspondence is replete with emotional overlay. The defendant makes regular comments to the effect that the plaintiff should go along with the defendant's view of how the estate should be administered and stop resisting the defendant's views about what is good administration, because it will be good for the plaintiff's growth and development and capacity to overcome the plaintiff’s own issues from his childhood.

18. This form of emotional pressure was never reasonable or acceptable in the administration of an estate. It was evident from the Court's interaction with the defendant that he was unable to readily appreciate that and at times he sought to apply similar pressure through his oral submissions.

19. Other features of the history of this unfortunate matter should be noted. The defendant has produced masses of material justifying what he has done in administering the estate. Although some of that voluminous material is difficult to follow, the defendant has undoubtedly taken upon himself the burden of much of the estate administration before these proceedings were commenced in September of 2025.

20. After the death of the deceased, some informal arrangements were undoubtedly made between the two co-executors as to how the estate would be administered and the defendant, naturally because of his local residence, was doing more of the physical cleaning out of the property and making more of the arrangements for its potential sale. But despite the volume of the material that the defendant has generated and served, it is not easy to discern in a reliable and intelligible format what the defendant has and has not done.

21. The defendant took the lead in applying for administration. However, once probate was granted in July 2025, the real issues between the parties emerged.

22. The defendant sought to have the property transferred to the plaintiff and the defendant on a joint tenancy basis. The Will did not require this. The defendant gave instructions to a conveyancer, but the conveyancer ultimately withdrew and refused to act in part due to the perceived conflict in instructions between the plaintiff and the defendant. The defendant blames the plaintiff for that, and the plaintiff blames the defendant. The Court does not have to determine exactly what happened, other than to say that this was an early demonstration of the co-executors’ failure to cooperate.

23. The defendant kept pressing for the estate property to be transferred to the plaintiff and the defendant as a joint tenancy. Had that occurred in all probability, it would have led to the whole estate going to the defendant. The plaintiff wishes to benefit his own family. There is no basis in the Will for such a transfer, or indeed even for the Moss Vale property to remain in the estate as a tenancy in common. The Will is entirely consistent with the estate being administered with the property being sold and the proceeds divided and distributed, as is now proposed by the plaintiff.

24. The defendant was represented by solicitors until November 2025. He then appeared without legal representation. From the time he represented himself his correspondence became unpredictable and often inflammatory. It would have been difficult for the plaintiff's legal advisors to respond to the defendant’s correspondence. At times it descends into allegations about abuse within the family while the deceased’s husband, and the parties' father, was alive. The defendant also alleges both in correspondence and in submissions that the plaintiff's solicitors are misusing the defendants "complex PTSD and trauma" against him. But there is no objective evidence of that in the correspondence: to the contrary the plaintiff’s lawyer’s correspondence demonstrates commendable restraint.

25. All of this indicates that the relationship of co-executors was unsustainable. That meant that the plaintiff's Statement of Claim should have, in the Court's view, by no later than December 2025 or February 2026, been consented to and should not have been opposed beyond that time. But a Statement of Claim from either the plaintiff or the defendant was always necessary for the grant of probate to the parties to be revoked and for the appointment of an administrator. So, some legal costs would have needed to be expended from the estate to advance these proceedings to obtain that final relief.

26. After several directions hearings in 2026, the Court appointed a hearing of the Statement of Claim on 24 April 2026. After extensive submissions and discussion with the Court, the defendant ultimately agreed to consent to the appointment of an independent administrator. As earlier indicated, he disputed that the independent administrator should be Mr Topper, and that led to the Court initially seeking the intervention of the Elder Law Committee of the Law Society of New South Wales to propose alternative independent administrators. This dispute on the defendant’s part was reasonable: litigants who are not legally represented often dispute the nominees for administrator who are put forward by the opposite party.

27. Ultimately on 15 May 2026, Ms Ross-Maranik was appointed. Since then she has most satisfactorily progressed the administration of the estate, to the point where the Moss Vale property is about to be placed in the hands of an agent.

28. As submitted by the plaintiff, this is a case which is very appropriate for the exercise by the Court of its powers to fix a specified gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c) on the basis that the voluminous evidence and correspondence to date amply demonstrates that a costs assessment in these proceedings would be vexatious and aggravating to the parties and would unnecessarily delay the final administration of the estate, an estate in which for the well-being of the parties should be finalised so they can finally separate from one another.

29. The questions to be resolved now are, firstly, what costs orders should be made, and secondly, whether a gross sum should be fixed instead of assessed costs. As the Court said earlier, this application was necessary and would have incurred some costs on the part of its proponent and a specified gross sum should be fixed instead of assessed costs so these parties can end their aggravating conflict as soon as possible.

30. The plaintiff relies upon the affidavit of Neville Anthony Hesford of 29 June 2026, which makes a claim for legal costs of $87,583. The claim is fully documented, setting out solicitors’ and counsel's memoranda willing of fees, and explaining the work undertaken, such that the Court is confident that it can make a fixed gross sum costs order in accordance with the authorities. The circumstances in which such a gross sum order might be made are discussed in cases such as Hamod v New South Wales [2011] NSWCA 375 at [816 817], Harrison v Schipp [2002] 54 NSWLR 738 at [22], and Hadid v Lenfest Communications Inc [2000] FCA 628 at [35].

31. To that end, Mr Francis, counsel for the plaintiff, has appropriately conceded that the amount recoverable on an assessment would be of the order of about 70 per cent of the costs claimed, and some degree of minor rounding makes the assessment process more straight forward. 70% of that is $68,000, when rounding the total claim to $88,000.

32. In the Court's view, of the $88,000 claimed by the plaintiff, it would have cost the estate about $20,000 to bring this claim on an uncontested basis and that sum should therefore be borne as an estate expense and borne by both parties equally. That figure should also be reduced to 70% of its total, being $14,000.

33. But in the Court's view the other $48,000, comprising 70% of the balance of the $68,000, has been wholly occasioned by the conduct of the defendant in prolonging these proceedings in the manner previously described and should be paid out of the defendant's share of the estate. The Court will order that the estate of the deceased pay the plaintiff $14,000 of the plaintiff’s costs of these proceedings and this estate liability will be borne equally by the parties’ respective shares in the estate. The Court will also order that the defendant pay the plaintiff $48,000 of the plaintiff’s costs of these proceedings.

34. The prolonging of the proceedings was caused by several irrelevant allegations that in brief should be mentioned here. They are irrelevant in the sense that they should not have held up the appointment of an independent administrator and, if they had substance, they could have been investigated separately later. These are allegations made by the defendant that the plaintiff falsely accused him of stealing $120,000 from a Challenger Bank account, that some of the delays in the administration of the estate occurred by reason of requisitions caused by the plaintiff's conduct, not the defendant's, allegations that the plaintiff's wife was collaborating with witnesses and with the lawyers for the plaintiff to delay the administration of the estate, and the allegation mentioned previously about the plaintiff being an obstacle to renting the premises.

35. To some extent the situation which has arisen was the product of the way the Will was constructed with co-executors who would never have been able to cooperate and that is why some of the costs will be borne equally. But the extra costs of these proceedings occasioned by the defendant’s conduct cannot be explained from the structure of the Will.

36. Much of the delay in finalising the proceedings was due to conflicts that were exacerbated by the defendant acting for himself, in the face of the plaintiff urging the defendant to get legal advice after November 2025. Unfortunately, the defendant declined to obtain such advice. The Court's own direct observation of the defendant in the courtroom, from conducting the case himself, was that he does have psychological difficulties in dealing with the issues in the proceedings, for which some allowance should clearly be made. The Court has taken that into account in the assessments that it has made.

The 22 June Motion

37. As to the defendant’s 22 June Motion, this motion appears to supplant any previous motions which the defendant advanced. It was the only motion on which he sought orders on 27 July 2026.

38. The four claims for relief on the motion which claim recognisable legal relief are prayers for relief, 4, 5, 6 and 7:

“4. That if the costs of administration are not to be paid by the Plaintiff then the Defendant be allowed to distribute the estate unimpeded by the Plaintiff.

5. That the Defendant be paid 5% commission for his work on the estate and gaining probate with this amount taking into consideration the pains and troubles caused to the Defendant by the Plaintiff’s actions.

6. That the Plaintiff compensate the Defendant for the loss of rental income to the estate caused by the Plaintiff’s unilateral refusal to rent the house although allowed by the will of the Deceased.

7. That the Plaintiff pay the defendant’s legal costs, in kind legal costs and pay damages for emotional, health and psychological damages caused by the Plaintiff’s actions and the loss of time and advancement in the defendant’s life.”

39. Prayer for relief (4) should be dismissed. Given the history of the administration of this estate, the Court should not permit the defendant any further involvement in the administration and distribution of the estate. Granting this prayer for relief would conflict with the Court’s orders appointing Ms Ross-Maranik.

40. As to prayer for relief (5), a claim for commission in this estate is premature and should be dismissed for that reason alone. The claim for commission would normally only be available upon the passing of accounts. Whatever "pains and troubles" the defendant has encountered, they were not caused by the plaintiff's actions so far as the Court can see. The Court did suggest to the defendant during argument that to the extent that he has expended his own funds in the administration of the estate, that he can look to Ms Ross-Maranik for reimbursement in respect of approvable expenditure. But another difficulty with his claim is that claims for commission by co-executors are normally made conjointly as the award of commission is ordinarily a single award. Individual claims for commission by co-executors are not unknown but they face their own hurdles, and this estate does not deserve a further contest in relation to commission.

41. As to prayer for relief (6), the defendant perceives that the plaintiff has caused a loss of rental income to the estate by refusing to rent the Moss Vale property. If this is to be pursued it would have to be in a separate hearing brought in proceedings under Uniform Civil Procedure Rules 2005, r 54.3. It is not appropriate to deal with it currently on this motion. But in the Court's view the correspondence between the parties and their mutual conduct is ambivalent about this issue and does not appear to favour the defendant. In fact, the defendant has occupied the house for a lengthy period, and the plaintiff has made clear in submissions that he is not seeking rent or reimbursement in respect of the defendant's occupation of the property. The defendant's rental claim appears to the Court to be unsupported by the objective evidence.

42. Prayer for relief (7) is best construed as a claim for personal injury allegedly caused by the plaintiff in the execution of the plaintiff's office as co-executor and in the conduct of these proceedings. The defendant did not articulate how this was a cause of action known to the law and it is dismissed on that basis as not being arguable.

43. Thus, the defendant’s motion of 22 June 2026 will be dismissed with costs.

Conclusion and Orders

44. Accordingly, the Court makes the following orders, notations and directions:

45. NOTE the plaintiff seeks costs of its Statement of Claim and the defendant moves on his motion of 22 June 2026.

46. NOTE on the motion the only identifiable relief sought is in prayers 4, 5, 6, and 7:

(a) as to 4, which seeks for the defendant to administer the estate, an independent administrator has been appointed so the defendant would not now be permitted to distribute the estate; (b) as to 5, which seeks commission, commission is only payable on the passing of accounts which has not yet occurred and would be difficult in the face of a dispute between two executors who dispute each’s contribution as to the administration of the estate; (c) as to 6, which claims the estate has lost rent due to the defendant’s conduct, the motion is not an appropriate vehicle to recover alleged lost rental income and on the available evidence the Court is not persuaded that any such loss is recoverable but the matter can be taken up with the administrator; (d) as to 7, which claims damages for alleged personal injury, no cause of action has been identified by plaintiff grounding an action for emotional or health damage allegedly caused by the plaintiff during the administration of the estate.

3. DISMISS otherwise the defendant’s motion.
4. ORDER both the estate and the defendant pay the plaintiff’s costs of these proceedings calculated as follows.
5. ORDER that some of the plaintiff’s costs of these proceedings should be borne by the estate (being the costs it would have been incurred in order to restructure the administration of the estate with an independent administrator) and some of the plaintiff’s costs should be paid by the defendant, namely the additional costs that have been incurred by the plaintiff by reason of the conduct of these proceedings.
6. NOTE that this is an appropriate case for the fixing of a gross sum instead of assessed costs under Civil Procedure Act 2005, s 98(4)(c), and the calculation below involves a slight degree of rounding in the calculations so

(a) the claim made of $87,583 which can be notionally rounded to $88,000 should be apportioned between

(i) costs that would have been incurred anyway by the estate on account of the need to bring some proceedings to appoint an administrator (a figure of a little over $20,000) and which should be borne equally between the parties as 50% beneficiaries of the estate, and (ii) the balance of the additional costs that have been incurred in bringing this claim against the defendant (a figure therefore of $68,000 (being $88,000 less $20,000) which should be borne out of the defendant’s share of the estate,

(b) each of these figures should be reduced in turn to about 70 per cent, on account of the discount which should be applied in the Court’s calculation to reflect a likely outcome of a costs assessment,

(i) rounding the $20,000 on account of costs that would have been incurred anyway to $14,000, and (ii) rounding the $68,000, on account of the additional costs that have been incurred in these proceedings because of the conduct of the defendant to $48,000.

7. ORDER that the estate of the deceased pay the plaintiff $14,000 of the plaintiff’s costs of these proceedings and this estate liability will be borne equally by the parties’ respective shares in the estate.
8. ORDER that the defendant pay the plaintiff $48,000 of the plaintiff’s costs of these proceedings.

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Amendments

19 August 2026

1. Paragraph [2] – first line: “summons” to “statement of claim”
2. Paragraph [2 ]– ninth line: “Ross-Marinak” to “Ross-Maranik”;
3. Heading on page 4 “The Costs of the Summons” to "The Costs of the Statement of Claim”
4. Paragraph [7] – first line: “Summons” to “Statement of Claim”
5. Paragraph [9] – eighth line: “defendant” to “Plaintiff”
6. Paragraph [9] – eighth line: “Darwin” to “the Northern Territory”
7. Paragraph [10] – sixth line: “Darwin” to “the Northern Territory”
8. Paragraph [17] – first line: “is” to “as”
9. Paragraph [25] – second line: “Summons” to “Statement of Claim”
10. Paragraph [25] – fifth line: “Summons” to “Statement of Claim”
11. Paragraph [26] – second line: “Summons” to “Statement of Claim”
12. Paragraph 34 – fifth line: delete "stole" and replace with "falsely accused him of stealing"
13. Para [44](1)- Summons to Statement of Claim