Harrison v Cox [2024] QSC 311

1. Steven Paul Cox and Sharon Maree Turner shall not transfer, sell, lease, encumber or in any other way create any interest in or dispose of any interest in the property of 209 Lakes Drive, Laidley Heights until further order.
2. Steven Paul Cox and Sharon Maree Turner pay the applicant's costs of the application limited to the costs of the appearance today.
3. Judgment reserved on:

(a) The final relief sought on the application.

(b) Save for the costs order made, the question of costs of the application.

1. Pursuant to section 8(1) of the Trusts Act 1973 (Qld), it is declared that:

(a) the Transfer of the real property located at 209 Lakes Drive, Laidley Heights, Queensland (more particularly described as Lot 20 on Registered Plan 854930) (Property) to the Second Respondent and Third Respondent as joint tenants by transfer registered on 13 September 2024 (being dealing number 723533870) (Transfer) was made in breach of trust;

(b) the Second Respondent and Third Respondent hold their legal and beneficial interest in the Property on constructive trust for the Administrator (as that term is defined below); and

(c) the First Respondents are not entitled to be indemnified or reimbursed from the estate of Raymond Paunovic (Deceased) in respect of their costs and disbursements of and relating to the Transfer.

1. The Second Respondent and Third Respondent execute such documents and do all such things as the Administrator reasonably requires to enable the Property to be transferred at their cost to the Administrator within 14 days of order.
2. Pursuant to section 6(1) of the Succession Act 1981 (Qld);

(a) the grant of probate issued to the First Respondents in Supreme Court of Queensland proceeding number S 2220 of 2024 be revoked;

(b) the First Respondents be removed as the executors of the estate of the Deceased;

(c) the First Respondents shall deliver the original grant of probate issued in proceeding number S 2220 of 2024 to the Brisbane Registry of the Supreme Court of Queensland within 7 days of order; and

(d) subject to the formal requirements of the Registrar, a grant of Letters of Administration with the Will of the Deceased dated 19 September 2023 annexed issue to Prudence Poole, solicitor of Cornford-Scott Solicitors (Administrator).

1. The requirement to give notice under rule 598(4) of the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with.
2. Pursuant to section 80 of the Trusts Act 1973 (Qld), the Administrator be substituted for the trustee named in clause 5 of the Will of the Deceased dated 19 September 2023 in place of the first Respondent and the Second Respondent.
3. Pursuant to section 82 of the Trusts Act 1973 (Qld) all property of the estate of the Deceased held by the First Respondents vest in the Administrator.
4. The Administrator be registered as the proprietor of any real property of the Deceased pursuant to section 114 of the Land Title Act 1994 (Qld).
5. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the Court fix the Administrator's remuneration, such remuneration to be assessed by an independent cost assessor pursuant to the Supreme Court of Queensland scale, as varied from time to time on the indemnity basis with the fees to be assessed at approximately two monthly intervals, since 1 October 2024 and on completion of the administration or the appointment.

(a) costs of the application other than those costs already ordered; and

(b) whether the Respondents should have indemnity from the Estate for their own costs and for any liability they may have for costs they might be ordered to pay.

1. By 4:00 pm on 23 December 2024 the Respondents file any submissions in reply.
2. Each party have liberty to file and serve an application for leave to make oral submissions on costs and the Respondents' indemnity by 4:00 pm on 13 January 2025 failing which the questions of costs and the Respondents' indemnity will be determined on any written submissions and without further oral hearing.

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - GENERALLY - where the deceased left a will - where, by the will, the deceased nominated two executors and trustees - where, by the will, the deceased empowered the executors and trustees to convert the property of the estate to money - where the will nominated three beneficiaries - where those beneficiaries each took one-third of the estate - where the beneficiaries were the two executors and the deceased's daughter - where the major asset of the estate was a house - where the deceased's daughter raised issues as to the validity of the will - where the deceased's daughter gave notice of intention to make an application for family provision - where the deceased's daughter filed an application for family provision - where the trustees and executors transferred the house to themselves beneficially - where the trustees and executors intended to pay one-third of the value of the house to the deceased's daughter - where that did not occur at the time of transfer - where the transfer of the house left the estate unable to meet any family provision order which might be made - whether the executors and trustees are in breach of trust - whether the executors and trustees ought to be removed

Land Title Act 1994 (Qld), s 114

Succession Act 1981 (Qld), s 6, s 8

Trusts Act 1973 (Qld), s 80, s 82

Uniform Civil Procedure Rules 1999 (Qld), r 638

Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, followed

Bates v Messner (1967) 67 SR (NSW) 187; [1967] 1 NSWR 638, cited

Colston v McMullen [2010] QSC 292, cited

Re Faulkner [1999] 2 Qd R 49, cited

Re McLennan [2018] QSC 124, cited

• [1] The applicant, Renee Josephine Harrison, who is the daughter of Raymond Paunovic (deceased), and who is a beneficiary under his will, applies for the removal of the respondents as executors of his estate. She also applies for other orders.

• [2] Mr Paunovic made his last will on 19 September 2023 (the will).
• [3] By the will, Mr Paunovic:

(a) appointed the respondents, Steven Paul Cox and Sharon Maree Turner, as his trustees and executors;

(b) empowered the respondents to:

(i) convert his estate to money;

(ii) pay all expenses; and

(iii) hold the rest and residue on trust for each of the two respondents and Ms Harrison in equal one-third shares.

• [4] Mr Paunovic died on 5 October 2023.
• [5] The principal asset held by Mr Paunovic at the time of his death was a house at 209 Lakes Drive, Laidley Heights (the house). On 7 June 2024, the value of the house was appraised by a real estate agent in business in Laidley. She opined the house to be worth between $540,000 and $560,000.
• [6] Probate of the will was granted to the respondents on 12 March 2024.
• [7] On 11 June 2024, Robbins Watson, solicitors for Ms Harrison, wrote to GLG Legal, solicitors then acting for the respondents. In that letter, Robbins Watson:

(a) requested copies of all wills of Mr Paunovic in the possession of GLG Legal;

(b) asked for other information about the estate;

(c) expressed concerns regarding the validity of the will and indicated Ms Harrison's instructions to undertake further investigations as to that issue; and

(d) placed the respondents on notice of an intention of Ms Harrison to make application for family provision pursuant to Part IV of the Succession Act 1981.

• [8] On 19 June 2024, GLG Legal responded saying they held instructions limited to providing a copy of the grant of probate. That was provided. They advised that they had no other instructions and invited Robbins Watson to communicate directly with the respondents. Email addresses for the respondents were provided.
• [9] On 27 June 2024, Robbins Watson wrote to each of the respondents in similar terms as their letter of 11 June 2024 to GLG Legal.
• [10] On 1 July 2024, Ace Solicitors wrote to Robbins Watson advising that they acted for Ms Turner and asked for information concerning the draft application for family provision which had been provided. A list of assets and liabilities was also provided to Robbins Watson.
• [11] The application for family provision was filed on Ms Harrison's behalf in the District Court and served upon Ms Turner by letter of 2 July to Ace Solicitors. In that letter, Robbins Watson also outlined the concerns about the validity of the will and asked whether Mr Cox was represented.
• [12] On 2 July 2024, the respondents transferred the house to themselves as personal representatives of the deceased's estate. There was communication between the respective solicitors and on 16 July 2024, Ace Solicitors advised Robbins Watson that:

"Unfortunately it is likely that our client will have to withdraw their previous offer to purchase the property at market value, and it is likely that the property will need to go to the open market, if the matter is not sorted out within the next couple of days (perhaps sooner). Please advise us urgently if your client is wanting to ensure the sale proposed goes through."

• [13] The circumstances in which the offer to purchase was made have not been explained.
• [14] On 23 July 2024, Robbins Watson wrote to GLG Legal who had prepared the will. They asked a series of questions as to the circumstances under which the will was prepared and executed.
• [15] GLG Legal responded fully to that request on 30 July 2024.
• [16] On 14 August 2024, Robbins Watson wrote to Ace Solicitors setting out very detailed reasons why Ms Harrison had concerns about the validity of the will. They then said in the letter:

"In the circumstances, our client requests that the executors obtain the following within 21 days, with a view to further allaying our client's concerns with respect to the validity of the Putative Will:

1. A copy of all medical records held by Ipswich Hospital relating to the deceased for the period 1 January 2023 to 31 December 2023.
2. A report from the deceased's general practitioner providing their opinion as to the deceased's testamentary capacity around the date of the Putative Will, which addresses the legal test for testamentary capacity and provides a basis for any conclusion.
3. The release of all records held by the deceased's treating general practitioner.
4. Copies of the deceased's medical records from any other medical practitioners and hospitals that were treating the deceased around the time the Putative Will was prepared, for the period 1 January 2023 to 31 December 2023."

• [17] Correspondence concerning the validity of the will passed between Robbins Watson, GLG Legal and Ace Solicitors during August. On 11 September 2024, GLG Legal wrote to Robbins Watson in terms:

"We act on behalf of Mrs Turner and Mr Cox in relation to the transfer of the property at 209 Lakes Drive, Laidley Heights being the property owned by Raymond Paunovic at the time of his death.

We confirm your client is to receive 1/3 share of the residuary estate with our clients receiving the remaining 2/3. As part of our clients 2/3 share, our clients intend to transfer the property into their names as part of their entitlements under the will, valuations have been carried out to determine how this will affect their entitlement.

Please find enclosed a copy of form 1 transfer and declaration for your records.

Would you please seek instructions from your client where she would like us to deposit her 1/3 share."

• [18] In that letter, a copy of a transfer dated 1 July 2024 transferring the house from the respondents as trustees to themselves beneficially was enclosed, together with a copy of the valuation. That transfer was registered on 13 September 2024.
• [19] A caveat was lodged on the title by Ms Harrison on 27 September. By that point the respondents had been registered as proprietors of the fee simple.
• [20] On 3 October 2024, Robbins Watson wrote to Ace Solicitors complaining about the conduct of the respondents in effecting the transfer. In particular they pointed out:

(a) the family provision proceedings were filed within the nine month period of the death of the deceased pursuant to s 41(8) of the Succession Act;

(b) the respondents were aware of that application;

(c) notwithstanding this, they transferred the house to themselves beneficially; and

(d) Ms Harrison did not consent to the transfer.

• [21] In that letter, Robbins Watson went on to request information, in particular, as to the amount of money paid by the respondents to the estate for the house. Enclosed with the letter was a draft of the originating application and supporting material which was ultimately served and heard. The following was said in the letter:

Given the above conduct by your clients, we are instructed to apply to the Supreme Court of Queensland for orders to, amongst other things, set aside the transfer and replace your clients as executors with Prue Poole of Cornford-Scott Solicitors, an accredited specialist in succession, as administrator with the Will annexed.

In our view, your clients would likely be awarded to pay our client's costs of the foreshadowed proceedings personally in addition to bearing their own costs personally. Having said that, and on a commercial basis with a view to minimising legal costs, we are instructed to make an offer on the following terms open for acceptance in writing by 4 PM on Thursday, 10 October 2024:

1. Your clients confirm in writing on an open basis that they consent to an order being made in a proceeding in the Supreme Court of Queensland to be filed by our client in terms of the enclosed draft Order, and consent to and do all things reasonably necessary to support the making of that order; and
2. Our client will not seek any order that your clients pay the costs personally of the foreshadowed proceeding in the Supreme Court of Queensland.

If the offer is not accepted within the time stated above, it will automatically lapse, and we reserve the right to rely on its terms to seek an order that your clients pay our client's costs on the proceeding on indemnity basis and not be entitled to any indemnity from the Estate in respect of those costs and their own costs."

• [22] The draft order enclosed with the letter was in terms of ordering a transfer of the house to Ms Poole and the removal of the respondents as executors.
• [23] There was no response by Ace Solicitors to the letter of 3 October 2024.
• [24] On 16 October 2024, the respondents wrote directly to Robbins Watson Solicitors:

I am emailing you to let you know Renee has messaged both Steven and I directly to advise that she is coming out on Saturday to the property and picking up the car and other bits and pieces she has demanded we leave the keys in the car.

As far as we are concerned the estate is to be held and nothing is to happen until the matters are resolved regarding the estate.

If you are still representing Renee could please contact Renee and advise her that she cannot attend and remove any assets until this matter has been resolved.

• [25] On 17 October 2024, Robbins Watson wrote to:

(a) Ace Solicitors advising of the direct communication made by the respondents and seeking confirmation that Ace Solicitors had authority to accept service of the application; and

(b) GLG Legal expressing that Ms Harrison takes issue with the transfer of the house to the respondents beneficially.

• [26] The application was filed on 18 October 2024, returnable on 7 November 2024.

(a) a declaration that the respondents were in breach of trust;

(b) the removal of the respondents as executors and trustees;

(c) appointment of Prudence Poole, solicitor, as administrator; and

(d) various ancillary relief.

• [28] In support of the application, Ms Harrison relied on the correspondence[1] and an affidavit of Prudence Poole, the proposed alternative executor and trustee.
• [29] Ms Poole is a solicitor specialising in estate and succession law. She is a Queensland Law Society Accredited Specialist in succession law, a member of the Society of Trust and Estate Practitioners and a previous committee member of the Queensland branch of that organisation.
• [30] In her affidavit, she says:

"5. Neither I or any member of my family, to my knowledge, knew the deceased, nor have any interest in the estate.

1. I have conducted a search of the records of Cornford-Scott Lawyers Pty Ltd and I do not believe that a conflict of interest exists if I am to be appointed as administrator of the above estate."

• [31] In written submissions relied upon by the respondents, this is said:

"16. At paragraph 5 of her affidavit, Ms Poole deposes to not knowing the deceased. However, she does not depose to not knowing the applicant. There is no evidence on how Ms Poole came to be selected as the proposed administrator."

• [32] As already observed, Ms Poole swore that she had no conflict. She was not challenged in any way apart from the rather peculiar observations made in paragraph [16] of the respondents' written submissions.[2]
• [33] Ms Poole in her affidavit went on to say that:

(a) she proposes to charge for her personal time in acting as administrator;

(b) she expects Cornford-Scott Lawyers Pty Ltd to charge legal fees on the Supreme Court scale on an indemnity basis;

(c) she will instruct an independent cost assessor to prepare an assessment of fees; and

(d) she will not claim executor's commission.

• [34] The respondents relied on an affidavit of Ms Turner. In that affidavit, Ms Turner swore to various matters which founded her belief that the will was valid. Then she said:

"9. On 12 March 2024, I obtained a grant of probate for this will in the Supreme Court of Queensland.

1. In late June, or on 1 July 2024, I instructed GLG Lawyers[3] to proceed with transferring the property.
2. I took this action because I knew that the applicant did not wish to buy the property, and I believed it would be more efficient and cost-effective for us to buy her out. This would allow me to avoid the uncertainty and expense of finding another buyer to match the property's value. I also wanted to prevent the property from sitting vacant and deteriorating, and I sought to finalize the estate as quickly as possible. I believed this was the most straightforward, economical solution.
3. I instructed GLG Lawyers to manage the transfer, and they informed me they would prepare the necessary paperwork and handle the lodging process.
4. Initially, Steven and I, as executors, transferred the property to facilitate quick estate administration. After discussions with real estate agents, Steven and I decided we would like to purchase the property.
5. I understood I was entitled to purchase the property, as clause 10(f) of the will permitted the transfer of interest to a beneficiary to expedite matters.
6. On 1 July 2024, I engaged Ace Solicitors to assist in relation to a family provision claim filed by the applicant in the District Court of Queensland.
7. On 16 July 2024, I informed Ace Solicitors that we might have to withdraw our offer to purchase the property because my lease was ending, and I needed alternative accommodation. I had originally intended to move into the property as soon as possible.
8. Due to the applicant's objections, I delayed moving into the property until these issues were resolved. This delay also affected my bank finance, which was put on hold, and I was uncertain whether I could maintain it until the dispute was resolved.
9. Since then, my bank has confirmed that my finance approval remains valid, so I have decided to proceed with the purchase.
10. On or around 11 September 2024, I swore a statutory declaration regarding the property transfer.
11. By this time, no court applications had been filed challenging the validity of the probate, and I did not believe there was any realistic or reasonable basis to contest the validity of the will.
12. I understood that once the property transferred to us, we would need to pay fair market value so that the other beneficiary was not disadvantaged. I anticipated a brief waiting period to allow the other beneficiary the opportunity to object if necessary.

• [35] There was no material sworn by Mr Cox. Mr Fronis of counsel appeared on the application for both respondents and read Ms Turner's affidavit, so I have taken it that Ms Turner, in her affidavit, also speaks for Mr Cox.
• [36] The respondents sought an adjournment of the application. In so doing, their position was stated as:

(a) they didn't oppose the setting aside of the transfer of the house to themselves beneficially;

(b) they opposed their removal as trustees and executors of the estate; and

(c) they will take no action in the administration of the estate until the family provision application is determined.

• [37] The basis for the adjournment application was expressed orally as:

"Basically, what their case is, is that they went to a solicitor and they were advised that they could do this, and in Ms Turner's affidavit, at paragraphs 12 and paragraph 22, she gives evidence as to what she was advised by the solicitor and she's - and the solicitor was the one who witnessed her signatures on the transfer form, and so she wants to attempt to get an affidavit from the solicitor and get an affidavit also from my instructor, who had discussed the matter with that solicitor and informed her of the family provision application, but they're saying, "Look, it's not our fault. We're not being dishonest. We went to a solicitor. We were advised that this - - -"

• [38] It is highly unlikely, in my view, that the solicitors referred to in the oral submissions (who must be GLG Legal) will support Ms Turner's understanding that the transfer was only to occur once Ms Harrison accepted the valuation.[4] As already observed, those solicitors wrote to Robbins Watson on 11 September. The tenor of that correspondence was that the transfer was proceeding and Ms Harrison's one-third share of the value would be deposited to a bank account to be nominated by her.[5] There is no suggestion of any consent of Ms Harrison being a condition precedent to the transfer. There is no suggestion of Ms Harrison's agreement to the valuation being a condition precedent to the transfer. The letter of 11 September is inconsistent with what is deposed by Ms Turner in paragraph [22] of her affidavit.
• [39] The application for adjournment was refused and Ms Harrison's application was heard. In the face of questions as to the validity of the will and notice being given of the making of a family maintenance provision application, the respondents transferred the property to their own names beneficially in September. They were aware of the attitude of Ms Harrison and had a copy of the draft application since 3 October 2024. In my view:

(a) the respondents had ample time to mount their response to the application;

(b) the affidavit of Ms Turner puts their case;

(c) there are obvious serious breaches of duty by the respondents in the administration of the estate; and

(d) it is, as I have explained, highly unlikely that GLG Legal would corroborate Ms Turner's evidence.

• [40] I heard full argument and then made the following orders:

1. Steven Paul Cox and Sharon Maree Turner shall not transfer, sell, lease, encumber or in any other way create any interest in or dispose of any interest in the property of 209 Lakes Drive, Laidley Heights until further order. 2. Steven Paul Cox and Sharon Maree Turner pay Ms Harrison's costs of the application limited to the costs of the appearance today. 3. Judgment reserved on:

(a) The final relief sought on the application. > > (b) Save for the costs order made, the question of costs of the application.

Consideration of final disposition of the application

• [41] The transfer of the house is said by Ms Turner to be justified because of clause 10 of the will, in particular, 10(f):

(f) Sell, lease, exchange, transfer to a beneficiary or otherwise dispose of property in my estate in the terms they consider expedient as though they were absolute beneficial owners; ..."

• [42] The bestowal of such a power does not negate the obligation of the trustees and executors to act honestly and not to prefer their own interests.
• [43] Here, there was no sale, lease or exchange. There was a transfer to the respondents beneficially of the only substantial asset of the estate. Although there was a stated consideration, that consideration was not paid upon transfer.
• [44] The net estate assets were valued at $579,279.98. The value of the house was stated as $550,000. Therefore, the respondents have transferred to themselves the whole estate, less about $30,000.
• [45] As a result of the transfer, the major estate asset has been appropriated subject to some understanding that the respondents will pay Ms Harrison one-third of the value of the house. That has not materialised apparently because there is now a caveat lodged by Ms Harrison so the respondents cannot raise funds by mortgaging the house.
• [46] The house was transferred although the respondents were on notice of a potential challenge to the will. Ms Turner says that no proceedings had been brought to set aside the grant of probate. It is obvious though that Ms Harrison was investigating the situation. Ms Harrison received information from GLG Legal and obtained documentation. The respondents have simply dismissed these concerns and proceeded to administer the estate in a way whereby they benefited from transferring the major asset.
• [47] The respondents knew before transferring the property that Ms Harrison had given notice of an intention to make a claim for family provision. At paragraph [23] of her affidavit, Ms Turner says that she was aware of the claim and "believe[d] there was enough equity in the estate to cover it". She then states that she thought she might have to "extend my loan from St George Bank if the estate is ordered to make payments to the applicant".
• [48] Once the house was transferred, there clearly weren't assets in the estate to pay any substantial family provision order. The assets in the estate had been reduced to less than $30,000 by the transfer of the house. The estate could only pay such a claim if Ms Turner reimbursed it. That is dependent upon loan arrangements being made by her. The transfer of the major asset of the estate in the face of notification of the family maintenance application is a breach of trust. The obligation upon the respondents was to preserve the estate until the family provision application was resolved.

(a) she completely disregarded the prospect of the will being challenged;

(b) she effectively disregarded the prospect of a family maintenance claim being made and now accepts that the estate would be unable to pay such a claim unless she funded it; and

(c) the various decisions that she has made were primarily motivated by her own accommodation needs.

• [51] In considering the removal of executors and trustees, the Court must give due deference to the choice of executors and trustees made by the testator.[7] The jurisdiction to revoke probate[8] is one that is ultimately exercised in the interest of the due administration of the estate and the interests of the beneficiaries and creditors.[9] The jurisdiction "is a supervisory and a protective one"[10] and is not dependent upon a finding that the named executors are not fit and proper.[11]
• [52] Here, the respondents point to a discretionary issue which they say militates against their removal. They submit that the estate is a small one and the costs of an independent professional administrator will be prohibitive. It is true that the estate is small. It is unlikely though that the costs of the administrator will be substantial. The major complication in the administration of the estate will be the family provision application. The administrator's role in that will be predominantly passive. Apart from providing evidence as to the financial position of the estate and the point of administration that has been reached, the administrator will have no role. The litigation will be fought between the beneficiaries.
• [53] In my view, the respondents ought to be removed as executors and trustees. The transfer of the house leaving the estate with no assets upon which to meet a family provision order was a serious breach of trust. Proceeding to transfer the house to themselves in the face of not only the family provision application but suggestions being raised as to the validity of the will was irresponsible. For the reasons I have explained, Ms Turner's explanations that she was acting on legal advice seem to be highly unlikely. Her sworn understanding as to the circumstances under which the transfer of the house was made is inconsistent with the objective evidence.[12] As already observed, she was more motivated by her own interests than achieving due administration of the estate.
• [54] It is not necessary to determine whether the respondents are unfit to be the executors and trustees of the estate. The evidence overwhelmingly points, in my view, to the conclusion that it is necessary in order to achieve due and efficient administration of the estate for them to be removed.

• [55] For the reasons I have explained, the respondents should be removed as executors and trustees of the estate. Ms Poole is amply qualified to administer the estate and no reasons have been established which disqualify her. She should be appointed as administrator.
• [56] The injunction made on 7 November 2024 should be maintained. The transfer by the respondents pursuant to orders I will now make will not constitute a breach of the injunction as the injunction is subject to further order. The orders being made today are "further order(s)".
• [57] In addition, I will make ancillary orders directing the transfer of the house and vesting the estate in the administrator.
• [58] On 7 November 2024, I ordered the respondents to pay the costs of the appearances on that day. I did so because the respondents were given ample opportunity through the letter of 3 October 2024 to avoid the necessity at least of the appearance on 7 November 2024. They did not accept the offer made in the letter of 3 October but then appeared on 7 November and conceded that the house should be transferred back into the estate.
• [59] The question of the broader costs of the application and who should ultimately bear them has not been the subject of detailed submissions. I will therefore make orders for the exchange of written submissions on that topic.
• [60] It is ordered:

1. Pursuant to section 8(1) of the Trusts Act 1973 (Qld), it is declared that:

(a) the Transfer of the real property located at 209 Lakes Drive, Laidley Heights, Queensland (more particularly described as Lot 20 on Registered Plan 854930) (Property) to the Second Respondent and Third Respondent as joint tenants by transfer registered on 13 September 2024 (being dealing number 723533870) (Transfer) was made in breach of trust;

(b) the Second Respondent and Third Respondent hold their legal and beneficial interest in the Property on constructive trust for the Administrator (as that term is defined below); and

(c) the First Respondents are not entitled to be indemnified or reimbursed from the estate of Raymond Paunovic (Deceased) in respect of their costs and disbursements of and relating to the Transfer.

1. The Second Respondent and Third Respondent execute such documents and do all such things as the Administrator reasonably requires to enable the Property to be transferred at their cost to the Administrator within 14 days of order.
2. Pursuant to section 6(1) of the Succession Act 1981 (Qld);

(a) the grant of probate issued to the First Respondents in Supreme Court of Queensland proceeding number S 2220 of 2024 be revoked;

(b) the First Respondents be removed as the executors of the estate of the Deceased;

(c) the First Respondents shall deliver the original grant of probate issued in proceeding number S 2220 of 2024 to the Brisbane Registry of the Supreme Court of Queensland within 7 days of order; and

(d) subject to the formal requirements of the Registrar, a grant of Letters of Administration with the Will of the Deceased dated 19 September 2023 annexed issue to Prudence Poole, solicitor of Cornford-Scott Solicitors (Administrator).

1. The requirement to give notice under rule 598(4) of the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with.
2. Pursuant to section 80 of the Trusts Act 1973 (Qld), the Administrator be substituted for the trustee named in clause 5 of the Will of the Deceased dated 19 September 2023 in place of the first Respondent and the Second Respondent.
3. Pursuant to section 82 of the Trusts Act 1973 (Qld) all property of the estate of the Deceased held by the First Respondents vest in the Administrator.
4. The Administrator be registered as the proprietor of any real property of the Deceased pursuant to section 114 of the Land Title Act 1994 (Qld).
5. Pursuant to rule 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the Court fix the Administrator's remuneration, such remuneration to be assessed by an independent cost assessor pursuant to the Supreme Court of Queensland scale, as varied from time to time on the indemnity basis with the fees to be assessed at approximately two monthly intervals, since 1 October 2024 and on completion of the administration or the appointment.

(a) costs of the application other than those costs already ordered; and

(b) whether the Respondents should have indemnity from the Estate for their own costs and for any liability they may have for costs they might be ordered to pay.

1. By 4:00 pm on 23 December 2024 the Respondents file any submissions in reply.
2. Each party have liberty to file and serve an application for leave to make oral submissions on costs and the Respondents' indemnity by 4:00 pm on 13 January 2025, failing which the questions of costs and the Respondents' indemnity will be determined on any written submissions and without further oral hearing.

[1] Exhibited to the affidavit of Sean David Powell, a partner of Robbins Watson.

[2] See paragraph [31] of these reasons.

[4] See paragraph 22 of her affidavit, appearing in paragraph [34] of these reasons.

[5] See paragraph [17] of these reasons.

[6] Re Faulkner [1999] 2 Qd R 49 at 52-53.

[7] Baldwin v Greenland [2006] QCA 293; [2007] 1 Qd R 117 at [44].

[8] A jurisdiction expressly given by s 6(1) of the Succession Act 1981.

[9] Re McLennan [2018] QSC 124 at [34], citing Mataska v Browne [2013] VSC 62 and Budulica v Budulica [2017] QSC 60.

[10] Baldwin v Greenland [2006] QCA 293; [2007] 1 Qd R 117 at [44].

[11] Baldwin v Greenland [2006] QCA 293; [2007] 1 Qd R 117; and see generally Colston v McMullen [2010] QSC 292 at [39], following Bates v Messner (1967) 67 SR (NSW) 187 at 191-192.

[12] See the letter of 11 September 2024 from GLG Legal, set out at paragraph [17] of these reasons.