Goldspring v Jordan [2024] NSWCA 158 | Case summary

Court of Appeal (NSW)|2024-06-16|Before: Bell CJ, Leeming JA, Harrison JA, Henry J, Hallen J

D Allen (First, Second and Third Appellants) P Wallis (Second and Third Respondents)

Shaba & Thomas Lawyers (First, Second and Third Appellants) Nolan Commercial Law Practice (First Respondent) Abbott Delaney Lawyers (Second and Third Respondents) File Number(s): 2024/87434 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2022] NSWSC 780; [2024] NSWSC 11 Date of Decision: 14 June 2022; 29 January 2024 Before: Henry J File Number(s): 2015/4479

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The Appellants, Peter Goldspring, Mark Goldspring and Marianne Goldspring were granted probate in relation to the estate of the late Frederick Goldspring (the deceased) on 4 May 2016. The Appellants and the Respondents, Katherine Jordan, Rhonda Thomas and Lynette Goldspring, are all children of the deceased. The Inventory of Property included $1,486,526.68 held in several bank accounts, including a "Macquarie Bank Share Portfolio" account (the Macquarie Share Account). By way of an Amended Notice of Motion filed on 16 October 2020, which was accompanied by an Amended Statement of Charge (the Statement of Charge), the Respondents sought orders that the Appellants be found guilty of, and punished for, civil contempt on the basis that they had failed to comply with court orders made by Lindsay J on 25 November 2019 and Hallen J on 24 June 2020. Several accounts and documents were filed by the Appellants in purported compliance with Lindsay J's and Hallen J's orders. They included a 19 page spreadsheet produced on 24 July 2020 by the Appellants' accountant (the Rapson Spreadsheet). The Rapson Spreadsheet included 62 line entries described as "Manual Journal Entries". The Respondents were also provided with a number of bank statements for the deceased's bank accounts, none of which related to the Macquarie Share Account. The primary judge held that the Appellants were in contempt on the basis that they had failed to comply with Hallen J's orders by "failing to produce a full account of the transactions and all documents in relation to the [Macquarie Share Account], as referred to in paragraph 11(d) of the [Statement of Charge]" and by "failing to produce documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet …, as referred to in paragraphs 11(i) and (j) of the [Statement of Charge]." Her Honour made orders requiring, in effect, that the Appellants produce documents remedying the breaches of Hallen J's orders which gave rise to the contempt: Jordan v Goldspring (No 2) [2022] NSWSC 780 and Jordan v Goldspring (No 3) [2024] NSWSC 11. The Appellants appealed from the decision of the primary judge, including on the grounds that the Statement of Charge did not disclose the charges with the necessary clarity and precision, the primary judge had erred in finding the charges proved beyond reasonable doubt and that there was disconformity between the orders ultimately made by the primary judge and the Statement of Charge. The Court held (Bell CJ, Leeming JA and Harrison CJ at CL agreeing), dismissing the appeal: 1. No error was demonstrated in the primary judge's findings that the Appellants had failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Account and that they had failed to produce documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet: [65]-[71]. 2. The Appellants or someone acting on their behalf must have had an account statement in relation to the Macquarie Share Account in their custody, power or control in order to complete the Inventory of Property, or else access to the details of that account. Even if that is not so, there must have been documents in the power, custody or control of the Appellants evidencing transactions in early 2017 which clearly related to the Macquarie Share Account: [75]. 3. Mr Rapson must have drawn upon information from some documentary source to make the 62 Manual Journal line entries in the Rapson Spreadsheet. If Mr Rapson had additional documents, they were necessarily in the custody, power or control of the Appellants: [76]. 4. To the extent that Hallen J's orders imposed an obligation to provide "a complete form of accounts" and the primary judge used the expression "a full account of", there is no material difference in meaning: [81]. 5. To the extent that the primary judge's orders were overbroad insofar as they referred to a failure to provide "all documents" in relation to the Macquarie Share Account rather than "account statements", as was charged in sub-paragraph 11(d) of the Statement of Charge relating to Hallen J's orders, the terms of the primary judge's orders could be varied by the Court exercising its power under s 75A(10) of the Supreme Court Act 1970 (NSW): [83]. 6. Although orders 1(d) and (e) made by Hallen J on 24 June 2020, referred to in sub-paragraphs 11(i) and (j) of the Statement of Charge, did not in terms require the production of documents, there is a well-established line of authority that a party that is ordered to provide an account will usually be required to show each receipt and payment, with vouchers such as supporting records and verification on affidavit. There was no disconformity between the primary judge's orders and the Statement of Charge relating to Hallen J's orders in this respect: [87]-[88]. Torlonia v Wright [2016] NSWSC 646, Hancock v Reinhart [2015] NSWSC 646 and Ford v Princehorn [2012] NSWSC 1165, referred to.

JUDGMENT

BELL CJ: The Appellants, Peter Goldspring, Mark Goldspring and Marianne Goodchild, commenced proceedings on 16 April 2015 seeking probate in relation to the estate of the late Frederick Goldspring (the deceased), who died on 2 November 2014 (the Probate proceedings). The Appellants and the Respondents, Katherine Jordan, Rhonda Thomas and Lynette Goldspring, are all children of the deceased and beneficiaries under his will. The Appellants were granted probate in relation to the deceased's will on 4 May 2016.
By way of an Amended Notice of Motion filed on 16 October 2020, the Respondents sought orders that the Appellants be found guilty of, and punished for, civil contempt on the basis that they had failed to comply with court orders made in the Probate proceedings by Lindsay J on 25 November 2019 and Hallen J on 24 June 2020. The Respondents also sought orders that the grant of probate appointing the Appellants as Executors of the deceased's estate be revoked and that their nominated solicitor be appointed as administrator.
The orders of Linsday J and Hallen J, which will be set out more completely below, required the Appellants to serve accounts of their dealings with and administration of the deceased's estate. These orders were made in the context of a dispute between the Respondents and the Appellants about the extent and administration of the deceased's estate.
Several accounts and documents were filed by the Appellants in purported compliance with Lindsay J and Hallen J's orders. They included a 19 page spreadsheet produced on 24 July 2020 by the Appellants' accountant, Mr John Rapson, entitled "Account Transactions - Estate of Fred Goldspring - For the period 1 November 2014 to 31 July 2020" (the Rapson Spreadsheet). However, by way of an Amended Statement of Charge (the Statement of Charge), which was annexed to the Amended Notice of Motion filed by the Respondents, it was alleged that the accounts and documents provided by the Appellants failed to comply with the orders of both Lindsay J and Hallen J in several respects, and that the Appellants were thereby in contempt of court.
The parties agreed that the contempt charges should be heard and determined prior to, and separately from, the other orders sought in the Amended Notice of Motion, including the order seeking that the grant of probate to the Appellants be revoked. Thus, on 1 and 2 November 2021, a hearing before Henry J (the primary judge) was held only in relation to the contempt charges. Her Honour later determined the remainder of the issues raised by the Amended Notice of Motion on the papers. (A challenge in ground 2 of the Notice of Appeal to the combination of the contempt charges which fell to be determined by reference to the criminal standard of proof, and other relief which fell to be determined on the civil standard, was abandoned in the course of the hearing of the appeal in recognition of the fact that the bifurcated way in which the primary judge heard the matter was entirely in line with the approach of a majority of this Court in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173.)
The Appellants argued before the primary judge that the contempt charges should be dismissed due to their form and lack of utility and because they amounted to an abuse of process. It was also submitted that the breaches of the orders of Lindsay J and Hallen J the subject of the charges had not been established by the Respondents on the evidence.
On 14 June 2022, the primary judge held that the Appellants had committed civil contempt on the basis that they had breached certain of the orders made by Hallen J on 24 June 2020 by failing to provide a full account in relation to one of the bank accounts forming part of the deceased's estate and by failing to produce documents supporting 62 line items in the Rapson Spreadsheet referred to as "Manual Journal" entries: Jordan v Goldspring (No 2) [2022] NSWSC 780 (Goldspring (No 2)).
On 29 January 2024, the primary judge dismissed the Respondents' application for revocation of the grant of probate to the Appellants and instead made orders requiring, in effect, that the Appellants produce documents remedying the breaches of Hallen J's orders which gave rise to the contempt. The primary judge also ordered that the Appellants pay 50% of the Respondents' costs of the Amended Motion on an indemnity basis without indemnification from the estate of the deceased and that the Appellants' costs of the Amended Motion were to be paid without indemnification from the deceased's estate: Jordan v Goldspring (No 3) [2024] NSWSC 11 (Goldspring (No 3)).
By way of a Notice of Appeal filed on 7 March 2024, the Appellants appeal from the decisions in Goldspring (No 2) and Goldspring (No 3). The appeal is brought pursuant to s 101(5) of the Supreme Court Act 1970 (NSW) (Supreme Court Act) which provides for a right of appeal from "any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court." Pursuant to s 75A(10) of the Supreme Court Act, this Court is empowered to "make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."
Although the Respondents had initially filed a Notice of Motion on 2 April 2024 seeking the dismissal of the appeal on the basis that it was filed 9 days out of time pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1)(c), the Respondents subsequently indicated that they no longer wished to press that Notice of Motion. Nonetheless, the Respondents submitted that in circumstances where no explanation for the delay in filing the Notice of Appeal has been provided and the proceedings involve a finding of contempt committed by the Appellants, the delay represents "particular carelessness" and "should not be lightly dismissed".
The Appellants submitted that, given the expedition with which the appeal came on for hearing and their relatively short delay in filing the Notice of Appeal, no prejudice was occasioned to the Respondents by the delay such that an extension of time for filing of the Notice of Appeal should be granted pursuant to UCPR, r 51.16(2). In my view, it is appropriate in all the circumstances to grant the modest extension of time sought.

Factual and procedural history

As outlined above, the Probate proceedings were commenced by the Appellants on 16 April 2015 and probate was granted on 4 May 2016.
The Inventory of Property disclosed assets valued at $2,398,993.60. Those assets included $1,486,526.68 held in seven bank accounts and share accounts, namely three National Australia Bank accounts, two Greater Building Society accounts, a "Cash Management Bank Account" (the Macquarie CM Account) and a "Macquarie Bank Share Portfolio" account (the Macquarie Share Account).
On 28 May 2019, the Respondents filed a Notice of Motion in the proceedings and an affidavit of the Respondents' solicitor in the proceedings at first instance, Mr Raymond Noland, dated 27 May 2019, which referred to a failure by the Appellants to disclose what had happened to net rental income amounts from a building owned by the deceased and the failure to provide any financial accounts in relation to the deceased's estate other than "a heavily redacted bank statement".

Orders made by Lindsay J

On 25 November 2019, Lindsay J made the following orders: "1. NOTE that these proceedings (numbered 2015/00004479) relate to the administration of the estate of Frederick Martin Goldspring who died on 2 November 2014 leaving a Will dated 25 June 2007 and a Codicil dated 3 June 2008, probate of which was granted to the first, second and third defendants on 4 May 2016. 2. NOTE that the proceedings are the subject of related proceedings numbered 2019/00197779 involving various trusts. 3. NOTE that the two sets of proceedings have been listed for hearing before Lindsay J on 10-12 November 2020. 4. NOTE that, in these probate proceedings (numbered 2015/00004479), there are competing notices of motion for hearing or further consideration on 10-12 November 2020, namely: a) a notice of motion filed on 28 May 2019 by the plaintiffs seeking an order for accounts; and b) a notice of motion filed by the first, second and third defendants seeking orders for the setting aside of various subpoenas issued by the plaintiffs. 5. NOTE that on 28 October 2019 the Court made orders for management of the proceedings vis a vis subpoenas and notices to produce. 6. ORDER that the first, second and third defendants, no later than 3 February 2020, file and serve a statement of accounts (in common form) relating to their administration of the estate of the deceased. 7. RESERVE for further consideration whether any (and, if so, what) supplementary orders are required for the purpose of having the first, second and third defendants account for their dealings with property comprising estate property. 8. RESERVE to each party interested in the estate of the deceased liberty to apply for an order that order 6 of these orders be discharged or varied. 9. RESERVE to the plaintiffs and the fourth defendant liberty to apply to the Court for orders regarding subpoenas and notices to produce after their receipt of the statement of accounts required by these orders to be filed and served by the first, second and third defendants. 10. RESERVE all questions of costs, including all questions about who should bear the costs of the accounting process, and to what extent those costs should be borne. …"
On 11 February 2020, Mr Rapson filed an affidavit in the proceedings setting out the following: "1. I am the external accountant for the estate and instructed by the Defendants to prepare financial statements and taxation returns for 30 June 2017 onwards. … 3. In preparing these accounts, entries on the bank statements for the estate were coded into categories and entered into our practice's accounting software system… 4. This is the same process undertaken by our practice for all accounting clients." (Emphasis added.) Annexure A to that affidavit comprised three spreadsheets, each entitled "Detailed Account Transaction Report" (the First Accounts). The three spreadsheets were all related to the "Estate of Fred Goldspring" and pertained to the periods 1 July 2018 to 30 June 2019, 1 July 2017 to 30 June 2018 and 1 July 2016 to 30 June 2017 respectively.

Orders made by Hallen J

On 24 June 2020, Hallen J made the following orders: "1. Orders that the first, second and third defendants by 4:00 p.m. on 24 July 2020, serve on all other parties a complete form of accounts in respect of the property comprised in the estate of the deceased, verified by affidavit, commencing from the date of death which account includes: (a) the nature and value of the estate, by way of inventory of property; (b) all monies (capital and income), received, but not limited to the settlement figures in respect to the sale of assets realised, contract notes for the sale of securities, and rent; (c) any assets that have been reinvested; (d) any monies disbursed by the Defendants, or any of them, or by any other person on his/her behalf; (e) the dealings and transactions, including, but not limited to the transfer of unrealised assets; (f) any assets transferred, including an in specie distribution; (g) any assets that remain undistributed and unrealised; (h) if any asset loss has occurred, the nature and value of that loss; (i) any amounts expended on professional assistance such as a solicitor, accountant, valuer or real estate agent and any authority to pay the amounts so expended; and (j) a reconciliation of the funds held as at the date of the filing of the accounts. 2. Directs that such accounts shall also specify: (a) in respect of each payment, or receipt, the date and amount thereof; (b) to whom the payment was made, or from whom the payment was received; and (c) the purpose or account for, or to which, the account was paid, or received; as the case may be. 3. Directs that any items of such account statement be numbered consecutively. 4. Directs that the first, second and third Defendants shall prepare a folder containing all invoices, receipts for disbursements, bank statements, deposit books, or documents evidencing electronic deposits or disbursements, bills for all professional work, receipts for any distributions to beneficiaries, including any assets transferred in-specie to a beneficiary and any additional receipts, or other evidence of transactions shown in the accounts, as may be appropriate. 5. Directs that the first, second and third Defendants provide to the Plaintiffs, by their legal representatives, a complete copy of the folder of documents prepared in accordance with the above paragraphs at the cost of the Plaintiffs. 6. Directs that the form of accounts be served in Word format upon the Plaintiff to enable the Plaintiffs to respond by acceptance or objection in regard to each item shown on the account. ..." (Emphasis added.)
On 24 July 2020, the Appellants filed an affidavit of Mr Rapson. Attached to that affidavit was a schedule "prepared by [Mr Rapson] in accordance with the orders of the Court made 24 June 2020." That schedule was the Rapson Spreadsheet referred to at [4] above.
The Rapson Spreadsheet was organised in columns headed "Date", "Source", "Description", "Reference", "Debit", "Credit", "Running Balance", "Gross" and "GST". Mr Nolan's evidence was that it recorded 998 individual line items. Those items were organised chronologically within grouped categories, including "Bank Fees and Charges", "Frederick Martin Goldspring", "Freds Greater Account", "Freds Greater Savings", "Mac Bank CMA", "NAB Classic - 4314", "NAB Isaver No 1 - 5941", "NAB ISaver No 2 - 5614", "Non Deductible Legal Expenses", "Rent Clearing Account", "Rent Received", "Retained Earnings" and "Shares in other companies - At Cost". The "Source" of the transactions was described as being either "Spend Money", "Receive Money" or "Manual Journal". There were 62 line entries described as "Manual Journal" entries.
On 19 August 2020, Mr Nolan gave evidence that he was provided with a folder containing 385 pages of documents from Catalyst Legal, the solicitors for the Appellants at first instance.
On 21 August 2020, Catalyst Legal sent an email to Mr Nolan attaching bank statements for six bank accounts in relation to the deceased's estate. Four of those accounts were National Australia Bank accounts and two were Greater Building Society accounts.
On 27 August 2020, Mr Nolan emailed Catalyst Legal seeking the following "missing … account statements": "1. Greater Building Society account number 7804922597 for the period from 1 January 2016 to the later of the date of account closure or the present. 2. National Australia Bank account number 348424314 statement numbers 86 to 99 and 101 onwards to the final statement including the date of account closure, or if the account is not closed, to date. 3. Macquarie Cash Management Account 122781446 from 2 November 2014 to the later of the date of account closure or the present. 4. Macquarie Bank Share Portfolio Account 45159329 from 2 November 2014 to the later of the date of account closure or the present." Mr Nolan also noted that he reserved his clients' "rights in relation to this further breach of the orders made by Hallen J on 24 June 2020."
On 28 August 2020, Catalyst Legal emailed Mr Nolan attaching the Macquarie CM Account bank statements and the following email from the Third Appellant: "I only have one Macquarie account and that is the one John sent to you. With the Greater account there were no more statements (see print out attached) The NAB account 348424314. I have produced all the statements that I have in my care. These use [sic.] to go to 101 Cessnock Road so I guess that is why I do not have them…" A document was attached to the email showing a nil balance for one of the accounts.
On 7 September 2020, Mr Nolan sent a letter to Catalyst Legal noting a number of asserted deficiencies with the material provided on behalf of the Appellants, including that: "3. The Rapson Spreadsheet does not deal with Macquarie Share Portfolio Account 4515 9329. Accordingly, individual items of receipts and expenses referable to that account are not itemised or explained."
On 8 September 2020, Catalyst Legal emailed Mr Nolan attaching "omitted statements received from the external Accountant." A series of emails were then sent on 16 September 2020 attaching 392 pages of tax invoices issued by Catalyst Legal and the Appellants' counsel. A letter was also sent on 16 September 2020 by Catalyst Legal to Mr Nolan in response to Mr Nolan's 7 September letter. In relation to the complaint in respect of the Macquarie Share Portfolio Account, it was said that "3. There is no basis for this complaint. The accounts deal with the Macquarie Share Portfolio. Please see item number 675…"
Item 675 of the Rapson Spreadsheet contained the following information under the heading "Mac Bank CMA". First, it noted the receipt of money from Macquarie Bank on 5 April 2017. Second, under column E, headed "Debit", it recorded the sum of $97,356.85. Third, it noted a running balance (presumably of the Macquarie CM Account) as at 5 April of $179,445.58. Fourth, under the column headed "Gross", it also recorded the sum of $97,356.85. From the statement in the letter of 16 September that "[t]he accounts deal with the Macquarie Share Portfolio" and the reference to Item 675, it would appear (although the matter was not entirely clear) that the $97,356.85 amount had been transferred from, or was in some other way a realisation of, share sales associated with the Macquarie Share Portfolio Account.
Attached to the 16 September 2020 letter was an affidavit of the Second Appellant sworn on 8 September 2020 by which he purported to verify the First Accounts filed on 11 February 2020 and an affidavit of the Third Appellant sworn 7 September 2020 by which she purported to verify the Rapson Spreadsheet. On 17 September 2020, Catalyst Legal provided Mr Nolan with a further affidavit sworn by the First Appellant on 16 September 2020 by which he too purported to verify the Rapson Spreadsheet.

The contempt proceedings

On 30 September 2020, the Respondents filed a Notice of Motion seeking orders that the Appellants be found guilty of, and punished for contempt, that the grant of probate be revoked and that a solicitor nominated by the Respondents be appointed as the administrator of the deceased's estate. Statements of Charge were also filed in relation to the contempt orders sought.
By way of an Amended Notice of Motion, which was filed on 16 October 2020 and accompanied by the Statement of Charge, the following orders were sought: "1 In order that pursuant to Part 55, Division 3, Rule 6 of the Supreme Court Rules 1970 (NSW) … the Executors be found guilty of contempt in failing to comply with the following orders to file and serve accounts in common form in relation to the estate of Frederick Martin Goldspring made by: a. Lindsay J, on 25 November 2019; and b. Hallen J, on 24 June 2020 2 An order that Peter Michael Goldspring, Mark Andrew Goldspring, Marianne Evelyn Goodchild be punished for contempt. 3 An order that the grant of probate dated 4 May 2016 appointing Peter Michael Goldspring, Mark Andrew Goldspring and Marianne Evelyn Goodchild as the Executors of the estate of Frederick Martin Goldspring be revoked. 4 An order that Richard Murphy solicitor of Newcastle be appointed as executor of the estate of the late Frederick Martin Goldspring. 5 An order that within 28 days of the making of Order 3 above, Peter Michael Goldspring, Mark Andrew Goldspring and Marianne Evelyn Goodchild, deliver to the replacement executor all originals and any copies of documents and records in their custody or control in relation to the estate and administration of the estate of the late Frederick Martin Goldspring. …" The Respondents did not ultimately press Order 2 of their Amended Notice of Motion: Goldspring (No 3) at [51]-[53].
Relevantly, the Statement of Charge in relation to the orders of Lindsay J included the following: "3. In breach of Order 6 made by Lindsay J on 25 November 2019, the form of accounts filed and served by the Executors on 11 February 2020: a. Were not in common form as they did not attach any receipts for income received and/or tax invoices for expenses paid on behalf of the Estate. b. Did not cover the period from the death of the Deceased on 2 November 2014 up to and including 30 June 2016, a period of 20 months. c. Did not cover the period from 1 July 2019 to 11 February 2020, a period of 7 months. d. Were not verified by the Executors."
In respect of the orders of Hallen J, the Statement of Charge set out the following: "11. Despite the provision of the affidavit of John Rapson [dated 24 July 2020] and the provision of the additional material in the period from 19 August 2020 to 17 September 2020 … and which additional material was required by the Hallen J Orders to be served no later than 24 July 2020, the Executors have failed to comply with the following orders made by Hallen J on 24 June 2020: a. Order 1 (i), copies of authorities to pay amounts expended on professional assistance such as a solicitor, counsel, accountant, valuer or real estate agent have not been provided. b. The individual items contained in the Rapson Spreadsheet are not numbered consecutively as required by Order 3, nor are the 14 pages of the Rapson Spreadsheet paginated or numbered. c. Order 1, the Rapson Spreadsheet does not provide information in date order, being prepared in individual components by way of bank accounts and/or other heads of expense or other accounting headings. d. The Rapson Spreadsheet contains no accounting for the Macquarie Share Portfolio Account xx29 as disclosed in the Inventory of Property as having a credit balance of $155,604.02 as at the date of death of the Deceased, other than a reference on the 10th unnumbered page of the Rapson Spreadsheet to the receipt of money from Macquarie Bank in an amount of $97,356.85 on 4 April 2017. The Macquarie Share Portfolio Account xx29 was in existence from a date prior to the death of the deceased on 2 November 2014 until at least 4 April 2017, but no account statements have been produced to provide a review of the transactions affecting that account as required by Order 4. e. The Folder contains 385 pages none of which are paginated, nor do they contain any reference to identify or correspond to an entry in the Rapson Spreadsheet. f. The Rapson Spreadsheet after excluding all blank lines and headings contains 998 individual line entries. Order 1 required the production of documents evidencing each receipt and expense in the Accounts. The Folder only contains evidence of documents representing approximately 39% of the income and expense items recorded in the Rapson Spreadsheet (385/998x100). g. Order 1, the documents in the Folder are not in chronological order or other logical order. h. The individual line entries in the Rapson Spreadsheet are not cross-referenced in any way to enable one to identify a receipt or expense item in the Rapson Spreadsheet with a document evidencing a receipt or expense contained in the Folder. i. The Rapson Spreadsheet contains 62 line entries the receipt of monies or the payment of expense items on behalf of the Estate. No documents supporting those 62 journal entries have been provided as required by Orders 1(d) and 1(e). j. Order 1(b), 1(d) and (e), on the 14th unnumbered page of the Rapson Spreadsheet, there are 6 profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2007, 30 June 2018, 30 June 2019 and 30 June 2020 respectively totalling $207,205.18. No information or documents are provided in the Folder to identify: i. The source of those profit distributions as required by Order 1(b). ii. The bank accounts disclosing the account into which those amounts were deposited. iii. No documents are provided in the Folder disclosing what has happened to those funds). 12. By reason of the matters as set out in subparagraphs 11(a) to 11(k) above it is almost impossible to reconcile the entries in the Rapson Spreadsheet with the documents in the Folder, including those additional documents produced … to constitute a form of accounts in common form as required by the orders of Hallen J dated 24 June 2020."
In support of their Amended Notice of Motion, the Respondents relied on the affidavits of Mr Nolan dated 27 May 2019 and 30 September 2020 and the exhibits to those affidavits as well as a folder containing 255 pages of bank statements provided by the Appellants, invoices and other documents relating to legal fees also provided by the Appellants and a spreadsheet prepared by Mr Nolan entitled "legal expenses extracted from documents in the Folder (In Date Order)". Mr Nolan also gave oral evidence in the proceedings. The Appellants did not adduce any evidence in the proceedings.
On 13 October 2021, Mr Nolan received an email from Catalyst Legal attaching a new spreadsheet entitled "Account Transactions, Estate of Fred Goldspring for the period 1 July 2013 to 30 September 2020" which set out the transactions in the Rapson Spreadsheet in chronological order commencing on 30 June 2014 and ending on 31 August 2020.

Goldspring (No 2)

The Appellants accepted that the summary of the legal principles offered by the primary judge in Goldspring (No 2) was correct. In particular, at [57]-[64] her Honour said: "The elements that need to be established in an application for civil contempt in relation to breach of a court order are set out in Bellerive Homes Pty Limited v FW Projects Pty Limited [2019] NSWSC 193 at [38] (Bellerive) and Eshow v Zaia [2020] NSWCA 10 at [17] and [18]. Relevantly, the party alleging contempt must establish, beyond reasonable doubt, that: (1) an order was made by a court; (2) the order was sufficiently clear such that one can be sure that the order was not complied with; (3) the alleged contemnor had knowledge of the terms of the order and, if required by the court rules, the order was served on the alleged contemnor or service was for some reason dispensed with; and (4) the alleged contemnor took a deliberate step which, even if not intended to, breached the order. It is not necessary to establish that the alleged contemnor intended to breach the order but it must be demonstrated that the contempt involved a deliberate act that was not merely casual, accidental or unintentional: Mahaffy v Mahaffy [2018] NSWCA 42 at [92] (Mahaffy); Markisic v Commonwealth of Australia [2007] NSWCA 92 at [64] (Markisic). There can be no finding of contempt for breach of a court order that is ambiguous: Mahaffy at [92] citing Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 489; [1965] HCA 21 (Morgan). A person accused of contempt is entitled to know the substance of the charges brought against them. The Full Federal Court in lnghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155 at [32] summarised the principles as follows (citations omitted): '(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt; (b) parties accused of contempt are entitled to know the gist or substance of the charges against them; (c) where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedies [sic] by resort to affidavit evidence; (d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice; (e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges; (f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and, (g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party's case would have been unaltered.' In [NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 at [203] (NHB Enterprises)] Bell P referred (at [209] and [210]) to the procedural requirements for a contempt charge, citing with approval what had been said by Ward CJ in Eq and Simpson JA as follows: '[209] In Furlong at [101], Ward CJ in Eq summarised the various procedural requirements to be satisfied on a hearing of a contempt charge, noting, with reference to Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 257; [1981] HCA 35, that the charge must be distinctly stated and that the party bringing the charge of contempt will be held to the precise formulation of the charge. Her Honour referred to Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [32], where Lee and Finn JJ said that '[u]nless and until an application is allowed to alter a particularised statement of charge, the accused is entitled to insist that he or she is only required to meet the charge as made'. See also Mirus at [119]; and McDonnell v Novello [2006] NSWSC 1186 at [26]. [210] Further, in Mahaffy at [92], Simpson JA noted that a charge of contempt should specify the nature of the contempt by providing proper particulars, and that there can be no conviction for contempt by breach of an order which is ambiguous, there relying on Lewis v Ogden (1984) 153 CLR 682 at 693; [1984] HCA 26 and Morgan.' In NHB Enterprises, Bell P also reviewed several cases relating to breach of court orders, including Anderson v Hassett [2007] NSWSC 1310 (Anderson v Hassett) and Markisic. In Anderson v Hassett, the plaintiff sought an order that the defendant executor be dealt with for contempt of court, for failing to produce to the court all the records of the administration of the estate. Brereton J (as his Honour then was) found the defendant guilty of civil contempt on the basis that he had in his possession documents covered by the court order which he did not produce. His Honour found that the breach was not 'casual, accidental or unintentional' in the relevant sense (at [34]-[35]), and it did not matter that the defendant did not intend to defy the court orders (at [8]). His Honour rejected the plaintiff's submission that as the defendant had produced nothing in answer to the order, the contempt was thereby proved, referring to that approach as 'plainly misconceived' because it overlooked the necessity to establish that there were, at the relevant time, in the defendant's possession, custody or power documents that fell within the terms of the order (at [17]). Having observed that the defendant's evidence was 'surprisingly general and careless', Brereton J observed (at [30]): 'However, this is not a suit for breach of trust, but a proceeding for contempt, and the issue is whether the plaintiff has proved beyond reasonable doubt the elements of that contempt… it is insufficient to prove that (the defendant) has not produced documents in the four classes specified in the order to the court. The plaintiff must prove at least that such documents were at the relevant time in his possession, custody or power, and that their creation or receipt bore the requisite relationship to one or more of the four classes.' In Markisic, Campbell JA (at [61] and [64]) (with whom Handley AJA and Bell J agreed) observed that mere non-production of documents that are called for by a court order will be insufficient to establish there has been a contempt. His Honour stated that what needed to be established was that, at the date on which the documents were required to be produced, the alleged contemnor had documents that met the description called for by the order to produce and that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or intentional."
The primary judge held that the charges in relation to the orders of Lindsay J were not bad in form and should not be dismissed for duplicity because the matters referred to in sub-paragraphs 3(a)-(d) of the Statement of Charge were not cumulative and rather, each referred to "one act that is alleged … to constitute the breach of Order 6 of Lindsay J's orders": at [73]. Although her Honour held (at [79]) that Hallen J's orders "are fairly to be construed as having been made in substitution for, rather than supplementary to, Lindsay J's orders" such that "once Hallen J's orders were made, there was no purpose to be served in requiring compliance with Order 6 of Lindsay J's orders", the primary judge went on to hold (at [86]-[88]): "It is also open to a court to make a finding of technical contempt, make a declaration of contempt without imposing any punishment, or decline to exercise the contempt jurisdiction for discretionary reasons even though the court may be satisfied that the contempt has been established… If the Applicants' ultimate purpose in bringing the contempt charge is to rely on the finding (if made) in relation to their revocation of probate claim, it does not follow that the contempt charge is brought for an improper or collateral purpose. Such a purpose depends on the contempt charge being proven, and bringing about a result for which the law provides, namely a finding that the executors are guilty of contempt of court: Rock v Henderson [2021] NSWCA 155 at [96] - [97] (Bell P). In my view, a finding of contempt may also be a relevant factor to the court's consideration of the Applicants' separate application for the revocation of the grant of probate in this case. In that context, and particularly as the question of what 'punishment' (if any) is sought and should be ordered is to be determined later (assuming the contempt charge is made out), I am not satisfied that the Applicants have established that the charges in relation to Lindsay J's orders should be summarily dismissed for lack of utility or an abuse of process in this case."
Her Honour recorded that the Appellants had conceded that they were in breach of order 6 of Lindsay J's orders to the extent that the First Accounts did not include some 27 months of missing information: at [95]. However, the primary judge did not find that the Appellants had breached Order 6 by failing to attach receipts or tax invoices or because the First Accounts were not verified by an affidavit of each of the Appellants: at [97]. Rather, her Honour considered that "this is a case where the language of order 6 is open to a sensible and plain reading that the Executors were only required to file and serve a statement of accounts without the documents themselves or any verifying affidavits" (emphasis in original): at [106].
The primary judge concluded (at [111]) that, although she was satisfied that the Appellants "were on notice and had knowledge of Lindsay J's orders and that the breach constituted by the 27 months of missing information was the result of a deliberate act" (at [110]): "…that this is a case where the court should exercise its discretion so as to not make a finding that the Executors are in continuing contempt of court as a consequence of their breach of Order 6. The Executors' attempt to comply with Order 6 may have been ill-advised but this is not a case where the Executors failed to comply with the order in the sense that they failed to produce any information to the Applicants at all or acted in complete disregard of the court's orders. The breach that I have found has also been fully remedied by the provision of the Rapson Spreadsheet in response to and in purported compliance with Hallen J's remedial orders. In those circumstances, I would characterise the Executors' breach of Order 6 as giving rise to a technical contempt and am not persuaded that making an order that they are guilty of civil contempt for failing to comply with Lindsay J's orders would represent an appropriate way of vindicating the court's authority or disciplining the Executors in this case: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113; [1986] HCA 46."
In respect of the contempt charges pertaining to Hallen J's orders, the primary judge held that the motion for contempt should not be summarily dismissed as an abuse of process. Her Honour said at [117] that she: "…would treat the Applicants' conduct of this contempt application as reflective of a genuine perception that the Executors have failed to comply with the court's orders and the need to protect and vindicate their personal interests in respect of the deceased's estate."
In relation to the form of the charges, the primary judge held that the matters referred to in sub-paragraphs 11(a)-(k) of the Statement of Charge were not "cumulative in the sense that each and every matter needs to be established in order to establish non-compliance with Hallen J's orders (as charged)": at [119]. Her Honour also held that "the gist or substance of the allegation in paragraph 11 is sufficiently clear, namely, that the Executors have failed to comply with (and are in breach of) Hallen J's orders in various respects notwithstanding the information contained in the Rapson Spreadsheet and the documents and verifying affidavits served by the Executors during the period 24 July 2020 to 17 September 2020": at [120].
At [125]-[126], the primary judge dismissed the charge contained in paragraph 12 of the Statement of Charge in respect of Hallen J's orders holding that it was: "…bad in form as it does not identify with sufficient precision what is said to constitute the particular conduct that entailed disobedience in breach of the court's orders and is alleged to constitute the contempt by reference to the requirements of Hallen J's orders. I also accept the Executors' submission that the meaning of the phrase 'almost impossible to reconcile' is unclear, involves a subjective judgement about what is 'almost impossible to do' and is open to several constructions (one of which is that all the documents in the Folder do not relate to the Rapson Spreadsheet, another is that some documents match and some do not, and another is that most of the items in the account do not match up). Further, the use of the words 'almost impossible' indicates that it is possible to reconcile the accounts with the documents, consistent with some of Mr Nolan's evidence which indicates that he was able to reconcile tax invoices and other expense information with the Rapson Spreadsheet and identify entries that were not supported by the documents (see for example, [42] - [43] of his 30 September 2020 affidavit and Exhibit C). To my mind, paragraph 12 is akin to alleging that the materials are difficult to understand and follow rather than, as required, identifying the particular omission which is said to give rise to the breach of the obligation required for compliance with Hallen J's orders. I should record that if I am wrong to dismiss the charge in paragraph 12 on this basis, I would have dismissed it for the reason that I am not satisfied that each and every matter referred to in subparagraphs 11(a) - 11(k) has been made out (as discussed below). As the Applicants' Counsel accepted in closing submissions, if the individual elements in paragraphs 11(a) - (k) are not established, he could not press the ground of contempt referred to in paragraph 12 in the way it is framed (T163.33-34). He also did not make any submission to suggest that the Applicants would seek to amend that charge."
In relation to sub-paragraph 11(d) of the Statement of Charge concerning Hallen J's orders (see [31] above), the primary judge held that: "[141] While I accept that sub-paragraph 11(d) could have been drafted more clearly, in my view, it is sufficient to identify the gist or substance of the charge against the Executors, which is that the Executors have failed to comply with the orders of Hallen J in that: (a) the Rapson Spreadsheet does not include accounting for the Macquarie Share Account, other than a reference at item 675 to the receipt of the money from Macquarie Bank in the amount of $97,356.85 on 4 April 2017; and (b) no account statements for the Macquarie Share Account were produced to provide a review of the transactions affecting that account, as required by Order 4. [142] As to the first allegation, I accept that Mr Nolan conceded in cross examination that he had received information from the Executors that identified a Capital Gain Tax calculation in respect of the estate's shares (as at 30 October 2019), which identified a loss to the estate and gross receipts of $97,374.00 (CB473, T59.21-44), and that the Rapson spreadsheet included entries in respect of the Macquarie CM Account totalling $180,001.34, which included the receipt of the money from the sale of shares on 5 April 2014 in the amount of $97,356.85 (T58.25-32). However, based on the contents of the Rapson Spreadsheet and Mr Nolan's evidence, I am satisfied, beyond reasonable doubt, that the material provided by the Executors is not a full account in respect of the Macquarie Share Account as required by Orders 1 and 4 of Hallen J's orders. [143] In particular, the Rapson Spreadsheet does not identify the nature and value of the Macquarie Share Account as at the date of the deceased's death, which the Inventory of Property identified had a credit balance valued at $155,604.02 at that time, as required by Order 1(a) of Hallen J's orders. Nor does it identify the asset loss that occurred, including the nature and value of that loss, as required by Order 1(h) of Hallen J's orders. [144] I do not accept the Executors' submission that it is not clear why the 'bank account' would disclose anything in relation to the sale of shares within the share portfolio. To my mind, that submission misses the point. The transaction information and documents that should have been produced, but were not, are the account statements and documentary evidence relating to the Macquarie Share Account, not the Macquarie CM Account statements that have been produced. [145] I am also satisfied beyond reasonable doubt that documents relating to the Macquarie Share Account were not produced by the Executors, such as the account statement or other evidence that recorded the transaction referred to in the Rapson Spreadsheet of the receipt of the money from Macquarie Bank in the amount of $97,356.85 on 4 April 2017 in relation to the sale of shares. The Executors were requested to provide the Applicants with the accounts held in relation to Macquarie Share Account, by letter dated 27 August 2020 (above at [38]), but did not produce them and no explanation was provided as to why they were not produced at that time or at the hearing. [146] The details contained in the Inventory of Property and in the Capital Gain Tax calculation prepared as at 30 October 2019, and the entry in the Rapson Spreadsheet relating to the receipt of money from the sale of shares, also satisfy me that documents relating to the Macquarie Share Account had once been in the Executors' possession, custody or power and some remained in their power at the relevant time, namely between 24 June 2020 and 24 July 2020. The Rapson Spreadsheet was prepared by the accountant instructed by the estate, who must have had access to documents relating to the transactions listed in the spreadsheet, including in relation to the sale of the shares, which documents would have remained in the Executors' power to produce. [147] I am also satisfied that the breach was not casual, accidental or unintentional in the relevant sense. The Executors were ordered to produce a complete and detailed form of accounts and evidence of transactions shown in the accounts. They ought to have appreciated that information and documents that established the transactions in relation to the share account were required to be produced."
In relation to sub-paragraphs 11(i) and (j) of the Statement of Charge, the primary judge noted that it was agreed that the materials produced by the Appellants did not include documents that supported the 62 "Manual Journal" line entries in the Rapson Spreadsheet, including the six profit distributions referred to in sub-paragraph (j): at [156]. While her Honour was not persuaded that bank statements existed in relation to those entries, she held "that some documents must exist that evidence the transactions described as Manual Journal entries": at [159].
At [160]-[162], her Honour said: "…The descriptions of the Manual Journal entries in the Rapson Spreadsheet, which all comprise credit or debit account transactions in relation to the deceased's estate, and various references, satisfy me that some form of journal entry document existed (whether in hard copy or electronic form) and was accessed by Mr Rapson when he prepared his spreadsheet. It could only be by reference to such documents that the Rapson Spreadsheet was prepared, in so far as that spreadsheet contains details of 62 Manual Journal account transactions. Either the Executors had the documents or Mr Rapson had them, in which case they were within the Executors power or control as documents relating to their administration of the deceased's estate. As noted above, the documents were not produced as part of the material in compliance with Hallen J's orders." The purpose of Hallen J's orders was to require accounts and documents to be provided to enable the Executors' accounts to be tested or verified by the Applicants. The orders expressly referred to the production of a folder containing all invoices, documents evidencing electronic deposits and disbursements, receipts for any distributions to beneficiaries and 'other evidence of transactions shown in the accounts' (Order 4). The failure by the Executors to produce documents that were apparently in existence is not, in my view, justified, as the Executors submitted, because the spreadsheet entries could be challenged by the Applicants. The obligation on the Executors was to produce a Folder containing the documents evidencing the transaction and they have not done so in accordance with then orders made. It follows, that I am satisfied beyond reasonable doubt that, in breach of Order 4 of Hallen J's orders, the Executors failed to produce documents they had in their possession, custody or power that evidenced the Manual Journal transactions listed in the Rapson Spreadsheet, including the Six Profit Distributions referred to in paragraph 11(j) of the charges."
The primary judge dismissed the charges contained in sub-paragraphs 11(a)-(c), (e)-(h) and (k) on the basis that they were insufficiently precise or because the breach of Hallen J's orders charged had not been established.
At [171], the primary judge concluded by holding that the Appellants had: "… committed civil contempt of court by failing to comply with Hallen J's orders of 24 June 2020 by failing to include a full account in relation to the Macquarie Share Account or to produce documents in relation to the line items referred to in the Rapson Spreadsheet as 'Manual Journal' entries, which include the Six Profit Distributions." However, her Honour was not satisfied that the Appellants had committed contempt of court by failing to comply with Lindsay J's orders or with any other aspect of Hallen J's orders set out in the Statement of Charge: at [172].

Goldspring (No 3)

In Goldspring (No 3) at [54]-[62], the primary judge set out the "well known" principles applicable to the Court's discretion to revoke a grant of probate. Her Honour then noted (at [73]) that the Appellants had provided "detailed and extensive accounts" which were only "incomplete in some particular and … limited respects" and went on to reason as follows (at [83]-[84]): "I accept that the findings of breach and civil contempt are significant and relevant matters to the Applicants' claim. However, they are to be considered in context. That context includes: the matters outlined above, particularly those at [72]-[77] and [82]; the fact that the Applicants chose to run contempt proceedings rather than adopting the procedure for revocation provided by the rules; and the fact that the Applicants have not sought to challenge the bulk of the Rapson Spreadsheet account entries based on the materials received, such as by asserting that more was received (surcharging) or less was disposed of (falsifying) or seeking accounts on the basis of wilful default. The Applicant's claim and reliance on the contempt findings is also to be considered in light of the Applicants' Proposed Orders which, rather than providing for the Executors to remedy the defaults identified in the Judgment as giving rise to the findings of civil contempt by the production of particular documents, seek the production of an entirely new set of accounts but with the inclusion of cross-referencing of each and every item of the account statement (which I understand to mean the Rapson Spreadsheet) to the pages of the folders containing the documents, a matter which the Applicants claimed was required by Hallen J's Orders, had been breached and also gave rise to a contempt finding, but which the Court rejected: Judgment at [148]-[151]. If the Executors' defaults were of the significance that the Applicants' submissions seek to suggest, it is to be expected that their Proposed Orders would have focussed on remediating them."
As such, the primary judge rejected the Respondents' application for revocation of the grant of probate but was satisfied that orders should be made to deal with the findings of breach in relation to the Macquarie Share Account and the Manual Journal entries: at [87]-[88].
Her Honour then held that it was appropriate to order costs on an indemnity basis to "mark the Court's condemnation of the Executors' breach of the Court's orders in circumstances where no punishment or penalty has been imposed and there is no evidence that the Executors have made an attempt to comply with the aspects of Hallen J's Orders that were found to have given rise to findings of civil contempt": at [95]. However, her Honour also considered that "some allowance should be made to recognise the mixed outcome" on the basis that the Respondents "succeeded on only three of the 12 contempt charges brought against the Executors, … have not succeeded on their revocation application and some of the charges brought … were found to be bad in form, unclear and involved ambiguity and imprecision": at [96]. Thus, "[a]dopting a broad brush and impressionistic approach", the primary judge (at [98]) ordered the Appellants to pay 50% of the Respondents' costs on an indemnity basis.
At [102], her Honour identified that the following orders would be made: (1) The First Respondent is in contempt of this Court by failing to comply with orders made by Hallen J on 24 June 2020 (Hallen J's Orders) by: (a) failing to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account XXXX 9329 (Macquarie Share Account), as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Applicants' Amended Notice of Motion filed on 16 October 2020 (Amended Motion); and (b) failing to produce documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet received on 24 July 2020, including the six profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 (Manual Journal Rapson Spreadsheet Transactions), as referred to in paragraphs 11(i) and (j) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (2) Dismiss the charges of contempt against the First Respondent: (a) as referred to in paragraph 3 of the Amended Statement of Charge relating to the orders made by Lindsay J on 25 November 2019 (Lindsay J's Orders) annexed to the Amended Motion; and (b) as referred to in paragraphs 11(a), (b), (c), (e), (f), (g), (h), (k) and 12 of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (3) The Second Respondent is in contempt of this Court by failing to comply with Hallen J's Orders by: (a) failing to produce a full account of the transactions and all documents in relation to the Macquarie Share Account, as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion; and (b) failing to produce documents supporting the Manual Journal Rapson Spreadsheet Transactions, as referred to in paragraphs 11(i) and (j) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (4) Dismiss the charges of contempt against the Second Respondent: (a) as referred to in paragraph 3 of the Amended Statement of Charge relating to Lindsay J's Orders annexed to the Amended Motion; and (b) as referred to in paragraphs 11(a), (b), (c), (e), (f), (g), (h), (k) and 12 of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (5) The Third Respondent is in contempt of this Court by failing to comply with Hallen J's Orders by: (a) failing to produce a full account of the transactions and all documents in relation to the Macquarie Share Account, as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion; and (b) failing to produce documents supporting the Manual Journal Rapson Spreadsheet Transactions, as referred to in paragraphs 11(i) and (j) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (6) Dismiss the charges of contempt against the Third Respondent: (a) as referred to in paragraph 3 of the Amended Statement of Charge relating to Lindsay J's Orders annexed to the Amended Motion; and (b) as referred to in paragraphs 11(a), (b), (c), (e), (f), (g), (h), (k) and 12 of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion. (7) Within 6 weeks of these orders, the Respondents are to produce to the Applicants such of the following documents as are within their possession, custody or power and have not already been produced to the Applicants: (a) documents evidencing the full account of transactions relating to the Macquarie Share Account for the period 2 November 2014 to 11 February 2020; and (b) documents evidencing the Manual Journal Rapson Spreadsheet Transactions. (8) Within 6 weeks of these orders, the Respondents are to serve on the Applicants an affidavit in relation to the documents referred to in Order 7 that were but are no longer in their possession, custody or power explaining to the best of their knowledge and belief what happened to them and where they are located. (9) Dismiss the Applicants' claim for the relief sought at prayers 3, 4 and 5 of the Amended Motion on the basis of the contempt findings in Orders 1-6. (10) The Respondents to pay 50% of the Applicants' costs of the Amended Motion on an indemnity basis without indemnification from the estate of the late Frederick Goldspring (deceased). (11) The Respondents' costs of complying with Orders (7) and (8) above and their own costs of the Amended Motion are to be paid without indemnification from the deceased's estate.

Grounds of Appeal

The Appellants originally raised seven grounds of appeal. As already noted (see [5] above), ground 2 was abandoned and ground 7 relating to costs was not pressed as an independent ground of appeal with Mr Allen, who appeared on behalf of the Appellants, submitting that it would only arise in the event that the Appellants succeeded on any of their other grounds. The remaining grounds were as follows: "1 Her Honour erred in hearing the respondents' Amended Notice of Motion (Amended Motion) with an attached Amended Statement of Charge (Charge), over objection of the appellants, when the Charge was defective in form and did not disclose the charges of contempt with the necessary clarity and precision, with the result that the appellants did not receive a fair hearing. 3 Her Honour erred in finding (the Findings), beyond a reasonable doubt that the appellants: a. failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Applicants' Amended Motion; and b. failed to produce documents supporting the 62 Manual Journal line entries in the 'Rapson Spreadsheet' received on 24 July 2020, including the six profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 as referred to in paragraphs 11(i) and (j) of the Charge relating to Hallen J's Orders annexed to the Amended Motion. 4 Her Honour erred in making the Findings when it was not proven that the documents existed or if they did exist, were in the possession, custody or power of the appellants so that any one of the appellants could produce the document. 5 The evidence was insufficient to prove the Findings beyond a reasonable doubt. 6 Her Honour erred in making the Findings when they were not expressed in the Charge."
The Appellants sought to set aside orders 1, 3, 5, 10 and 11 of the primary judge's orders, set out at [49] above. It will be noted that orders 1, 3 and 5 are in common form save that each is directed to each of the Appellants separately. Orders 10 and 11 related to costs.
The Appellants also originally sought to set aside orders 7 and 8 although noting that they had been complied with. The Appellants ultimately did not press the setting aside of orders 7 and 8, although the apparent subsequent compliance with those orders somewhat undermined complaints in relation to the clarity of the charges generally and, in particular, those charges in sub-paragraphs 11(d), (i) and (j) of the Statement of Charge relating to Hallen J's orders.
The Appellants' written submissions were not as closely tied to the various grounds of appeal as they might have been, and it was not always clear to what particular ground particular submissions were addressed. Counsel in the Court of Appeal should endeavour to draft and structure their submissions by reference to individual grounds of appeal both as a matter of fairness to their opponents and to assist a busy Court in its preparation for hearing and in the production of reasons for judgment.

Ground 1

By ground 1 of their appeal, the Appellants argued that the contempt charges contained in paragraph 11 of the Statement of Charge relating to Hallen J's orders were not drafted with sufficient particularity to provide a fair hearing to the Appellants.
This ground of appeal, itself drafted with a high degree of generality, was not the subject of any apparent elaboration in the Appellants' written submissions, other than the equally general submission that paragraph 11 was drafted "too poorly to provide a fair hearing to the Appellants".
Focusing on paragraph 11 of the Statement of Charge (see [31] above), sub-paragraphs (a)-(k) set out with ample clarity the orders of Hallen J made on 24 June 2020 with which it was alleged the Appellants had failed to comply, and the manner in which that non-compliance was charged. No unfairness accrued to the Appellants by reason of the form in which paragraph 11 of the Statement of Charge was drafted. The chapeau to paragraph 11 spelt out that the Executors had "failed to comply with the following orders …". The use of the plural "orders" made it clear that the paragraph was concerned with multiple individual breaches of particular orders of Hallen J. Contrary to one of the Appellants' submissions, the charge was not alleging a single breach with the consequence that all sub-paragraphs (a)-(k) of paragraph 11 needed to be established in order for the charge to be made out.
It was also submitted that paragraph 11 ought to have been read as preliminary to paragraph 12 of the Statement of Charge and accordingly dismissed in its entirety as ambiguous on the basis that it was unclear to the reader whether there was one charge contained in paragraph 12 or 12 separate charges found throughout paragraphs 11 and 12. This argument should be rejected. Whilst the primary judge held that paragraph 12 was "unclear" (Goldspring (No 2) at [125]), that conclusion did not affect paragraph 11 and, as already explained, paragraph 11 was a free standing charge of individual acts of non-compliance with particular orders that had been made by Hallen J on 24 June 2020. Whatever the precise role of paragraph 12 in the Statement of Charge, it did not operate to produce either ambiguity in relation to paragraph 11 of the Statement of Charge or unfairness to the Appellants.
So much was manifested by the fact that each of the sub-paragraphs of paragraph 11 was addressed seriatim by the parties, and was dealt with individually by the primary judge. Indeed the Appellants enjoyed success in relation to sub-paragraphs 11(a)-(c), (e)-(h) and (k): see [44] above.
The Appellants also submitted that: "Sub-paragraph (d) of the Amended Statement of Charge states that the Rapson Spreadsheet gave 'no accounting for the Macquarie Share Portfolio'. This is too ambiguous. What is meant by 'accounting'? What order does this breach? It cannot be the order referred to in the charge, Order 4, as Order 4 is an order for the production of documents."
This submission is based upon an incomplete quotation of paragraph 11(d) of the Statement of Charge which was to the effect that the "Rapson Spreadsheet contains no accounting for the Macquarie Share Portfolio Account … other than a reference …". Read in its entirety, there is no ambiguity or lack of clarity as to what was required. There was a credit balance in the Macquarie Share Account at the date of the death of the deceased in 2014 recorded in the Inventory of Property in the sum of $155,604.02 with the only other express reference in the Rapson Spreadsheet being the receipt of $97,356.85 on 4 April 2017. Other than that single reference, there was no further explanation as to the balance of the account as at the date of the Inventory of Property nor any document evidencing its balance at that time or from time to time.
The expression "no accounting for the Macquarie Share Portfolio Account" was not "too ambiguous". The charge fell to be understood in respect of the asserted non-compliance with Hallen J's orders of 24 June 2024 which required "a complete form of accounts in respect of the property comprised in the estate of the deceased, verified by affidavit, commencing from the date of death…": see [20] above.
Contrary to [25(5)] of the Appellant's Written Submissions, it is entirely clear from the language and context of sub-paragraph 11(d) of the Statement of Charge that the reference to "no accounting" was a reference to no account statements for the Macquarie Share Account. The final sentence of sub-paragraph 11(d) of the Statement of Charge was that "The Macquarie Share Portfolio Account xx29 was in existence from a date prior to the death of the deceased on 2 November 2014 until at least 4 April 2017, but no account statements have been produced to provide a review of the transactions affecting that account as required by Order 4." (Emphasis added.)
Ground 1 of the Notice of Appeal should be dismissed.

Ground 3

Ground 3 related to two separate findings (the Findings), one in relation to the Macquarie Share Account, and one in relation to the 62 Manual Journal line entries in the Rapson Spreadsheet. Each Finding should be dealt with separately.
The first Finding in respect of which the primary judge was said to have erred was her finding beyond reasonable doubt that the Appellants "failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account as referred to in paragraph 11(d) of the Statement of Charge relating to Hallen J's Orders annexed to the Applicants' Amended Motion."
Mr Allen's submission in this regard was to focus on the terms of paragraph 11(d) of the Statement of Charge to the effect that the "Rapson Spreadsheet contains no accounting for the Macquarie Share Portfolio Account … other than a reference … to the receipt of money from Macquarie Bank in an amount of $97,356.85 on 4 April 2017", and to submit that there was some other accounting in line 67 of the Rapson Spreadsheet such that it could not be concluded that there was "no accounting … other than the reference to the receipt of $97,356.85 on 4 April 2017". This submission, with respect, was to play with words.
Line or item 67 of the Rapson Spreadsheet, which was categorised as a "Manual Journal" entry, simply recorded "Pick up Loss on Sale of Shares" and contained a debit entry for 5 April 2017 of $12,281.65. It also contained an unexplained reference to "#338". Whether or not this entry did indeed relate to the Macquarie Share Account was not obvious but, even if it did, that reference simply did not negative the primary judge's impugned finding that the Appellants "failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account." Her Honour's reasoning at [142]-[147], reproduced at [48] above, was not demonstrated to have been in error.
Appeal ground 3(a) must fail.
The second Finding in respect of which the primary judge was said to have erred was her finding beyond reasonable doubt that the Appellants "failed to produce documents supporting the 62 Manual Journal line entries in the 'Rapson Spreadsheet' received on 24 July 2020, including the six profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 as referred to in paragraphs 11(i) and (j) of the Charge relating to Hallen J's Orders annexed to the Amended Motion."
Again, this finding was not only open to her Honour but was clearly correct. The only argument advanced by Mr Allen in this respect appeared to be by reference to some rather unclear passages in the cross examination of Mr Nolan (by reference to documents which Mr Allen conceded were not contained in the Appeal Books) that some documents had been supplied in respect of some of the 62 Manual Journal entries.
No meaningful submission was advanced to impugn the findings or reasoning of the primary judge (reproduced at [43] above) that were the subject of appeal ground 3(b).

Ground 4

Ground 4 was to the effect that the primary judge erred in making the two sets of Findings which were the subject of ground 3 "when it was not proven that the documents existed or, if they did exist, were in the possession, custody or power of the Appellants so that any one of the Appellants could produce the document."
The first set of documents in question were the account statements for the Macquarie Share Portfolio account. As already noted, these were dealt with by the primary judge in Goldspring (No 2) at [141]-[146], reproduced at [41] above. To repeat part of [146]: "The Rapson Spreadsheet was prepared by the accountant instructed by the estate, who must have had access to documents relating to the transactions listed in the spreadsheet, including in relation to the sale of the shares, which documents would have remained in the Executors' power to produce."
That reasoning discloses an entirely proper and indeed obvious basis for inferring both the existence of the documents in question, and that they were in the "possession, custody or power" of the Appellants.
Each of the Appellants verified the Inventory of Property referred to at [13] above. That included a reference to the Macquarie Share Account. The Appellants, or someone acting on their behalf, must have either had an account statement in their custody, power or control in order for that entry to be made, or else access to the details of that account: the Inventory of Property included the name of the institution and both the account number and separate holder identification number, and also stated a monetary value in relation to that account. The more probable inference is that the Appellants or their agent, Mr Rapson, had custody, power or control over the bank statement that allowed them to include and verify that entry in the Inventory of Property and if so, it is inexorable that subsequent statements existed for later periods and that such statements were equally within the custody, power or control of the Appellants. But even if that is not so, the Macquarie CM Account shows a steady stream of dividends from listed public companies (principally Woolworths, Star, Tabcorp, Aristocrat and ANZ) in 2015 and 2016 which cease on 7 April 2017. As noted above, there is an entry in the Rapson Spreadsheet for 5 April 2017 referring to "Pick up Loss on Sale of Shares". The inference is irresistible that there were shares beneficially held by the deceased which were sold in the first few months of 2017. There must exist documents evidencing those transactions, and when the dividends and the statement in the Inventory of Property are considered together, it is clear that those transactions related to the Macquarie Share Account. There was no error in the primary judge's conclusion in the first Finding that the Appellants have "failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account".
In relation to the second set of documents in question, namely those that must have lain behind the 62 Manual Journal entries in the Rapson Spreadsheet, the primary judge's holding has been set out at [43] above. Mr Rapson must have drawn upon information from some other documentary source to make those entries and, as the primary judge observed, that view of the matter was confirmed by the discrete references comprised of a hashtag and a reference number in the Rapson Spreadsheet. If Mr Rapson had additional documents, they were necessarily in the custody, power or control of the Appellants.

Ground 5

Ground 5 simply asserted that "the evidence was insufficient to prove the Findings beyond a reasonable doubt." As with a number of other grounds, expressed at this extreme level of generality, no attempt was made in the Appellants' written submissions in chief or in reply to respond to, elaborate or give any content to this ground. The only submission made which may have been intended to relate to this ground was that relating to the email referred to at [23] above from one of the Appellants which stated that "I only have one Macquarie account and that is the one John sent to you." Mr Allen submitted that this email raised a reasonable doubt as to whether other documents in relation to the Macquarie Share Account existed or were in the Appellants' possession, custody or control. I do not accept that submission. First, the assertion was not able to be tested as none of the Appellants gave evidence. Second, the email said nothing as to the other two Appellants. Third, the reasons set out in [73]-[75] above fly in the face of the Appellants' submissions.
Appeal ground 5 fails.

Ground 6

This ground was that the primary judge erred in making the Findings when they were not expressed in the Statement of Charge relating to Hallen J's orders. As elaborated orally, it became clear that what was intended by this ground was the fact that the primary judge's form of orders reproduced at [49] above did not precisely mirror the actual charges made against the Appellants.
In relation to the Macquarie Share Account, her Honour's order was that each Appellant was in contempt of Court by failing to comply with orders made by Hallen J on 24 June 2020 by: "…failing to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account XXXX 9329 (Macquarie Share Account), as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Applicants' Amended Notice of Motion filed on 16 October 2020 (Amended Motion)"
To the extent that Hallen J imposed an obligation to provide "a complete form of accounts" and the primary judge used the expression "a full account of" in orders 1(a), 3(a) and 5(a), I do not discern any material difference in meaning.
Mr Allen also submitted that the primary judge's orders presupposed that the Executors were obliged to produce "all documents in relation to" the Macquarie Share Account (which they had failed to do) whereas sub-paragraph 11(d) of the Statement of Charge relating to Hallen J's orders only asserted that "no account statements have been produced to provide a review of the transactions affecting that account as required by Order 4." This submission was technically correct but the substance of her Honour's finding was also correct, as I have found in rejecting appeal ground 3(a).
To the extent that the form of order in 1(a), 3(a) and 5(a) was overbroad insofar as it referred to "all documents in relation to the Macquarie Share Portfolio Account XXXX 9329 (Macquarie Share Account)" rather than "the Macquarie Share Portfolio Account statements", that drafting error may be readily rectified by this Court, exercising its power under s 75A(10) of the Supreme Court Act.
Turning to the primary judge's order 1(b) (and similarly expressed orders 3(b) and 5(b)), her Honour's order was that the Appellants were in contempt by failing to comply with Hallen J's orders by: "…failing to produce documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet received on 24 July 2020, including the six profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 (Manual Journal Rapson Spreadsheet Transactions), as referred to in paragraphs 11(i) and (j) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion."
Mr Allen pointed to what he said was a disjunction between sub-paragraphs 11(i) and (j) of the Statement of Charge, which did not in terms refer to the orders of Hallen J requiring the production of documents, and the terms of the primary judge's orders which were to the effect that the Appellants were in contempt because they had failed to produce documents. Sub-paragraph 11(i) of the Statement of Charge stated that "[n]o documents supporting those 62 journal entries have been provided as required by [Hallen J's] Orders 1(d) and (e)."
Mr Allen's point in relation to Hallen J's orders 1(d) and (e) was that they called for a: "…complete form of accounts … which account includes: … (d) any monies disbursed by the Defendants, or any of them, or by any other person on his/her behalf; (e) the dealings and transactions, including, but not limited to the transfer of unrealised assets" but did not in terms require the production of documents.
It is correct that orders 1(d) and (e) did not in terms require the production of documents but there is a well-established line of authority, referred to by the primary judge at [100] of Goldspring (No 2), that a party that is ordered to provide an account would usually be required to show each receipt and payment, with vouchers such as supporting records and verification on affidavit. Her Honour referred to Torlonia v Wright [2016] NSWSC 1139 at [23] and [65] and Hancock v Reinhart [2015] NSWSC 646 at [353] and [383]. Reference may also be made to the decision of White J (as his Honour then was) in Ford v Princehorn [2012] NSWSC 1165 who, at [31], made reference to R Geddes, C Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1st ed, 1996, LBC Information Services) at [85.02], quoting H Ford and W Lee, Principles of the Law of Trust (3rd ed, 1995, Law Book Co.) at [93.10] as follows: "The general duties of all trustees, including personal representatives, include the keeping and rendering to the beneficiaries of the full and candid record of their stewardship, including all appropriate financial accounts. The keeping of proper accounts and records is an integral part of the performance of the trustee's duties. The accounts must show all receipts as well as all payments, and payments must be supported by vouchers, although oral evidence of disbursements may be allowed in the absence of vouchers ... [i]t is the further duty of the trustee to render accounts for the beneficiaries, to have her or his accounts ready and to be candid in any disclosures to beneficiaries." (Emphasis added.)
It follows, in my view, that orders 1(d) and (e) made by Hallen J (including their chapeau) did require the production of documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet, and that there was no disconformity between the primary judge's orders 1(b), 3(b) and 5(b) and the Statement of Charge relating to Hallen J's orders in that respect.
Similar reasoning applies when one has regard to sub-paragraph 11(j) of the Statement of Charge but the position is perhaps even clearer in that 11(j) refers to the fact that: "…No information or documents are provided in the Folder to identify: i. The source of those profit distributions as required by Order 1(b). ii. The bank accounts disclosing the account into which those amounts were deposited. iii. No documents are provided in the Folder disclosing what has happened to those funds."
The reference to "the Folder" is plainly a reference to the fourth of Hallen J's orders of 24 June 2020 which expressly referred to the production of documents. Although her Honour did not accept that there were necessarily any bank accounts in existence "disclosing the account into which those amounts were deposited" (see sub-subparagraph ii of 11(j)), her Honour upheld the charge in relation to sub-subparagraphs i and iii, and so much was reflected in her Honour's orders 1(b), 3(b) and 5(b).
Save for the minor matter referred to in [83] which will be reflected in the orders which I propose, I would dismiss appeal ground 6.
It also follows that, because in substance the appeal has failed, there is no occasion to revisit the costs orders made by the primary judge.

Orders

For the above reasons, I order that: 1. Time for filing a Notice of Appeal be extended to 7 March 2024. 2. Vary orders 1(a), 3(a) and 5(a) of the orders of Henry J made on 29 January 2024 as follows: "(1) Peter Michael Goldspring is in contempt of this Court by failing to comply with orders made by Hallen J on 24 June 2020 (Hallen J's Orders) by: (a) failing to produce the Macquarie Share Portfolio Account XXXX 9329 (Macquarie Share Account) statements, as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion; … (3) Mark Andrew Goldspring is in contempt of this Court by failing to comply with Hallen J's Orders by: (a) failing to produce the Macquarie Share Account statements, as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion; … (5) Marianne Evelyn Goodchild is in contempt of this Court by failing to comply with Hallen J's Orders by: (a) failing to produce the Macquarie Share Account statements, as referred to in paragraph 11(d) of the Amended Statement of Charge relating to Hallen J's Orders annexed to the Amended Motion; …" 1. The appeal be dismissed with costs.
LEEMING JA: I agree with Bell CJ.
HARRISON JA: I agree with the Chief Justice.

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Supreme Court Act 1970(NSW)ss 75A(1), 101(5)

Goldspring v Jordan

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