• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. On 12 September 2022, Mrs Mildred Evelyn Griffin (the deceased) died, leaving her estate (the Estate) equally to her four sons, Michael James Griffin (the applicant), Timothy David Griffin (Tim Griffin), and Peter John Griffin and Mark Geoffrey Griffin (the respondents). In her will (the Will), the deceased specified the respondents, but not the applicant or Tim Griffin, as her executors.

2. Prior to her death, the Deceased expressed the wish that she did not want her sons to argue over her Estate. Regrettably, this wish has not come to pass. The relations between the brothers who are executors and those who are not has broken down. The non-executors (the applicant and Tim Griffin) contend that the respondents have breached their fiduciary duties to properly administer the Estate. The executors (the respondents) deny this allegation.

3. On 2 December 2024, the applicant filed an application seeking an order requiring the examination and passing of account for the executors of the Estate. The respondents submit that the applicant has not demonstrated that such an order is appropriate.

Background

The grant of probate

4. On 3 March 1997, the deceased executed the Will. In that Will, the deceased appointed the respondents as the executors and trustees of her Estate, and bequeathed the whole of her estate to her trustees on trust to divide equally amongst those of her sons who survived her.

5. The deceased died on 12 September 2022. She was then 88 years old.

6. On 11 November 2022, probate was granted to the respondents as the executors of the deceased’s estate. At the time of the grant of probate, the estimated gross value of the Estate was $2,114,118.05, and included shares, money held in bank accounts and a residential property in Weetangera (the Weetangera property).

7. On 25 November 2022, the legal representative for the executors published a Notice of Intended Distribution of Estate in the Canberra Times.

8. The assets of the estate were subsequently realised. This included liquidating the shares owned by the deceased, closing the deceased’s bank accounts and preparing the Weetangera property for sale. The Weetangera property was sold on 21 July 2023, and settlement took place on 18 August 2023.

9. The Estate was fully distributed on 19 August 2024, with final payments being made to each beneficiary on that date.

Correspondence between the parties prior to the commencement of the present proceedings

10. Disputes arose between the brothers concerning the distribution of the Estate prior to the grant of probate and continued for two years, until the commencement of the present litigation.

11. An affidavit filed on behalf of the executors annexed the following correspondence between the parties: (i) On 4 November 2022, the solicitor representing the applicant and Tim Griffin wrote to the solicitors for the executors, advising that Mark Griffin was a resident of Switzerland, and that the applicant and Tim Griffin were concerned “about [Mark Griffin’s] residency (for tax purposes) having adverse consequences on the tax treatment of the estate if the estate is considered a non-resident trust due to Mark’s involvement”. The letter advised that the applicant and Tim Griffin sought the executor’s agreement to obtain advice on this issue, at the cost of the Estate. (ii) By letter dated 8 November 2022, the solicitors for the executors responded by way of a letter which explained that they “do not see [Mark’s residency] as an issue”, as the other executor, Peter Griffin, was not a foreign resident for tax purposes. The letter advised that the executors did not intend to obtain taxation advice prior to making an application for the grant of probate. The letter informed the applicant and Tim Griffin that they were entitled to obtain independent advice, but that the executors did not agree for the costs of that advice to be borne by the Estate. (iii) On 12 December 2022, Tim Griffin personally wrote a letter to the solicitors for the executors, asking for confirmation of the grant of probate. In that letter, he told the executors that he wished to receive his quarter of the shares in the Estate transferred to his ownership and directed that his shares were “NOT to be sold by the estate” as he wished to “hold them for long-term investment and [to] control [his] own CGT tax when eventually sold”. He further stated that he “grant[ed] his approval” for the Weetangera house to be sold, provided that it was sold for no less than $1,355,000 without his prior expressed approval. Finally, he noted that the contents of the Weetangera house were not part of the probate valuation inventory. He stated that he claimed a quarter share of all household assets, and specified that “nothing is to be removed or sold without [his] expressed approval”. He stated that he had “photos and [had] documented all rooms in the house and property”. (iv) By letter dated 15 December 2022, the solicitors for the executors wrote to Tim Griffin’s legal representative, providing a copy of the grant of probate, and advising that the executors had determined to sell all shares “for efficiency and to ensure that there is an equal distribution to the beneficiaries, without concern as to possible tax implications which may occur in the future.” The letter also advised that the Weetangera property would be sold at market value and that approval from the applicant would not be sought. Finally, the letter asked that the applicant provide a list of items from the house that he would like to retain. In an email sent the same day, Tim Griffin’s solicitor responded in an email that she was no longer instructed by him. Following receipt of this email, the executors then sent the letter directly to Tim Griffin by email that day. (v) Upon receipt of that email, Tim Griffin immediately sent a letter to the solicitors for the executors asserting that he and the applicant were still legally represented, but that he had sent the previous letter, and was sending this letter, in his “own capacity of beneficiary” to advise of his wishes. In this further letter, Tim Griffin expressed his disappointment with the administration of the Estate, and warned that if the Weetangera property was undersold, this could result in a claim against the executors. The letter also requested a copy of the valuation that was done for the household contents. (vi) On 16 February 2023, Tim Griffin wrote a letter to the solicitors for the executors. In that letter, he referred to a meeting that had been arranged between himself, the applicant and the executors. He said that one of the executors was residing in the Weetangera property. He recorded that he had been told in the meeting that a valuer had visited the property and declared that there was nothing of value in the property. He said that no evidence of that visit, or the valuation had been provided to him. He asserted that an inspection of the property had revealed that several items of value had been removed from the property. He said that he was told that the executors had distributed some of the property to themselves and to other people who were not beneficiaries. He told the executors that removal of assets from the property was “contrary to the preconditions set for the meeting” [bottom pg 37], and noted that such action “may constitute executor fraud”. He again expressed distress and disappointment, noting that the deceased had “specifically told me she did not want us to argue over her estate”. Tim Griffin also expressed concern about the executors’ commitment to settling the Estate “whilst their own jobs or whatever seem to be their priority”. The letter concluded with a demand for all property that had been removed or distributed to be returned; for a detailed household inventory of all items (“down to every piece of cutlery”) to be compiled by an independent company; to provide confirmation as to whether any executors have been residing in the property; and to provide plans relating to the distribution of the household assets once returned, the sale of the car, and the sale of the property. The letter also required a detailed settlement statement including details of all transactions; tax returns; and other statements, listings and valuations. (vii) On 18 February 2023, the applicant sent an email to the solicitors for the executors demanding reimbursement for funeral expenses, and requiring the firm to answer questions about legal advice which was said to have been given to the executors concerning transactions which predated the deceased’s death. (viii) On 1 March 2023, Tim Griffin sent an email to the executor’s solicitors which advised that he had personal possessions at the Weetangera property, including possessions in a locked wardrobe and video cameras. (ix) On 24 March 2023, the applicant and Tim Griffin sent a letter to the solicitors for the executors. The letter referred to various duties that are owed by an executor to the beneficiaries of an estate. The letter demanded that the executors provide, within 7 days, an update of the status of the Estate; confirmation that all property previously removed or distributed is returned to the property; provision of a detailed household inventory of all items; provision of a plan of how the estate was intended to be distributed; details of how the beneficiaries could retrieve their personal property from the Estate; payment of the applicant’s funeral expenses; as well as the provision of various financial statements in relation to the Estate. (x) On 30 March 2023, the solicitors for the executors wrote an email to the applicant and Tim Griffin, acknowledging receipt of the letter, and asking for details of the legal advice that they had received which accused the solicitor for the executors of failing to advise the executors that they were in breach of their fiduciary duties. The solicitor for the executors denied this allegation. (xi) On 31 March 2023, Tim Griffin sent an email to the solicitor for the executor, stating that the applicant and himself had received “a large amount of advice regarding our situation from several sources including solicitors, Special Counsel, ACT Law Society, ACT Policing etc”. He said that they had no intention of sharing those confidential discussions. The email ended by “strongly suggest[ing] your clients respond in a positive and timely manor [sic]”, noting that failure to do so could result in an application to have them removed and replaced as executors of the Estate. (xii) On 20 April 2023, the applicant and Tim Griffin sent a further letter to the solicitors for the executors complaining about the absence of any response to the letter of 24 March 2023, which again accused the executors of breaching their fiduciary duties. (xiii) On 21 April 2023, the solicitors for the executors responded to the letter of 20 April 2023. In that letter, the solicitors stated that the executors had afforded the applicant and Tim Griffin an opportunity to collect their possessions, and stated that they had failed to attend at the time that the executors had made themselves available. The letter stated that the executors were prepared to assist them to obtain their personal property, and told the applicant and Tim Griffin to contact the executors directly to arrange this. The letter also explained that the expenses claimed by the applicant were not “funeral expenses” that are required to be reimbursed by the estate as a matter of law. However, the letter stated that the executors were prepared to reimburse the applicant for those costs, provided that the applicant and Tim Griffin provided signed consent to them doing so. The letter concluded that the executors wished to place on the record that they had proceeded with the administration of the Estate according to law. (xiv) On 9 May 2023, the applicant and Tim Griffin sent a letter to the solicitor for the executors in response to the 21 April 2023 letter. In that letter, the applicant and Tim Griffin denied that the executors had afforded them an opportunity to attend and collect their personal belongings, and demanded evidence of that assertion. The letter warned that any false or misleading statements “may and will be used as evidence in any Court proceedings”. The letter also asserted that the applicant’s claim was “100% funeral expenses”, noting that the funeral included the celebration of life event, which the applicant had organised and paid for, as the third part of the funeral. The letter questioned why Peter Giriffin had had his funeral-related expenses paid, but the applicant had not. The letter warned that debt recovery action had been commenced, and that “[d]ebt recovery can only be ceased and the matter ended by making prompt payment plus costs of $250, total debt to the estate now owing $1,770.20”. The letter also complained about the failure of the executors to provide the other information and statements previously demanded. Finally, in respect of the Weetangera property, the letter advised that the “latest value [of the property] from the Realestate.com.au TM realEstimate guide” was $1,420,000, and “median sale price $1,452,500 [sic]” for comparable houses in the area. The letter stated that they had “evidence that a Co-Executor is trying to devalue the Estate Property by stating that the Canberra housing market has fallen 20% and he’s finding it difficult to sell the Estate Property”. The letter said that the expectations of the beneficiaries was that the reserve price for the property be no less than $1,355,000, and warned that they reserved their rights to place a caveat on the property. (xv) On 22 May 2023, the solicitor for the executors wrote a letter to the applicant and Tim Griffin responding to their letter of 9 May 2023. That letter advised that the Estate motor vehicle had been used by the Executors in the course of the Estate administration; the date of death taxation return had been lodged and that a tax refund was expected; the guns owned by the deceased’s late husband had been handed in to ACT Police; there had been an interested buyer for the Weetangera property, but that buyer was unable to obtain approvals to develop the property and the sale did not proceed; and the Weetangera property would be sold at auction in June 2023. The solicitor referred to the previous failure to agree on the distribution of the chattels at the meeting at the Weetangera property on 1 February 2023, and stated that Tim Griffin could have collected his personal possessions at that time. The solicitor stated that it was understood that the applicant and Tim Griffin were in Canberra for a week at the time of this meeting. The letter again invited the applicant and Tim to collect their possessions “at a time reasonably convenient to both our clients and you”. The solicitor further advised that the balance of the chattels would be sold through an auction house prior to the sale of the Weetangera property, and that if there were any items which the applicant or Tim Griffin wished to keep, a list of those items should be provided as soon as possible. Finally, the solicitor warned that the executors would comply with their obligations concerning the administration of the Estate, but that the executors did not intend to enter into protracted arguments or discussion concerning “insignificant requests for information”, which would increase the costs to the Estate and interfere with the proper administration of the Estate. (xvi) On 24 May 2023, the applicant and Tim Griffin sent a letter to the executors’ solicitors which accused the solicitors of making written promises “which have again been broken”, and accused the executors of deceit in their dealings. The letter stated that the solicitors and the executors had a legal and fiduciary duty to maximise the value of the Estate. The letter continued “your clients procrastinated and mishandled listing the Estate property for sale”, and alleged that the Weetangera property should have been listed on the market six months prior. The letter accused the executors of failing to investigate the removal of a eucalyptus tree from the property, arguing that the tree limited the saleability of the property. The letter also required a “detailed inventory listing” of all “Chattels” on the property, and requested that all items removed should be returned. The letter further requested details of the arrangements that were said to have been made for the return of their personal property. The letter stated that the motor vehicle should have been sold “ASAP”, and not used or driven. The letter asserted that the vehicle had been driven by the executors, depreciating its value. The letter also recommended that a specialist taxation professional be engaged for the Estate, and concluded by reminding the executors of “their legal and fiduciary obligations and the severe penalties associated with the law”. (xvii) On 25 May 2023, the executor’s solicitor sent an email to the applicant and Tim Grifffin attaching text messages said to concern the collection of personal property by the applicant and Tim Griffin. (xviii) On 26 May 2023, Tim Griffin sent an email in reply which denied that the text messages related to the collection of personal belongings. The email noted that the property auction had been delayed, with the need to cut trees down adding further delay to the settlement of the estate. He also required the return of the household items prior to auction. (xix) On 20 July 2023, the solicitors for the executors sent the applicant and Tim Griffin an email which advised that the motor vehicle had been sold for $8,500 and that the household chattels were being progressively sold through the Auction Barn. The email advised that the sale price of the chattels would be posted on the website “at close”, so that the information would be available to the applicant and Tim Griffin. Further, all proceeds less commissions and lot bidding costs would be made payable to the Estate on finalisation of the transactions. The email advised that the Weetangera property was then under offer to an arm’s-length buyer for $1,150,000, with a likely settlement date of 20 August 2023. The letter asked that the applicant and Tim Griffin to advise on an amenable time for them to attend the property to collect their personal property before settlement. The letter also stated that there were a number of boxes of the brothers’ late parents’ personal belongings at the property, and it was suggested that these could be allocated proportionately amongst the beneficiaries. The letter stated that the executors had endeavoured to identify the personal belongings of the applicant and Tim Griffin, which had not been sold with the Estate assets. The letter noted that this identification process was challenging as Tim Griffin and the applicant had chosen not to remove their personal possessions when in Canberra in early February and access to the property was granted to them. The letter concluded by stating that arrangements would need to be made for the removal of these items in advance of 20 August 2023, failing which the executors would store the items at the expense of the respective owners of those items. (xx) In an email sent on 21 July 2023, the applicant and Tim Griffin stated that they had been in contact with the Auction Barn, who had advised that the items were not posted on their website. They stated that the Auction Barn had further advised that they had been selling the personal possessions of the deceased for about six weeks. The email noted that “you have not granted us as beneficiaries the same opportunity to bid on sentimental items in the same rights as the executors have had, a clear conflict of interest and massive breach of trust of our late mothers [sic] wishes”. The email requested an immediate and full copy of all items that had been provided to the Auction Barn by close of business that day. The email warned that failure to provide that information would “likely result in the executors being held personally responsible and legally liable”. (xxi) On 25 July 2023 the applicant and Tim Griffin sent a further email to the executors’ solicitors noting that no response had been received to their previous email. The email requested information about when the executors’ lawyers became aware or were informed of the engagement of Auction Barn, and whether the executors’ lawyers were aware of the executors not notifying all beneficiaries of the engagement of the Auction Barn and the subsequent sale of estate assets without their knowledge. (xxii) On 31 July 2023, Tim Griffin sent an email to the executors’ solicitors which noted that no response had been made to the email of 25 July 2023. The email then extracted information concerning executor fraud. (xxiii) On 1 August 2023, the solicitor for the executors wrote a letter to the applicant and Tim Griffin in response to their emails of 21 July 2023 and 31 July 2023. That letter stated that the executors had instructed that their lawyers were not to respond further concerns and allegations raised by the applicant and Tim Griffin, and that they would not be providing any additional response to the most recent emails from the applicant and Tim Griffin. The letter explained that the executors were not prepared to continue responding to their emails “having regard to the prolix nature of your correspondence which we note puts the estate to further unnecessary legal costs”. The letter advised that regular updates would continue to be provided pertaining to the sale of the Weetangera property, together with updates concerning any significant developments in relation to the Estate. The letter stated that the refusal to respond to their communications should not be regarded as discourteous, and that the lawyers were acting on instructions received by their clients, as executors, “who wish to preserve the value of the residuary estate for the benefit of all beneficiaries”. (xxiv) On 14 August 2023 the solicitor for the executors wrote to Tim Griffin, noting that he had attended their office on two separate occasions that say seeking to meet with the solicitor. The letter advised that the conduct of Tim Griffin caused the solicitor’s receptionist to feel apprehensive and threatened. The letter noted that a senior associate of the firm was forced to intervene to defuse the situation; Tim Griffin refused to leave until required to do so on several occasions; and Tim Griffin said that he would “wait outside” for the solicitor to return to the office, causing the receptionist to be concerned about leaving the office. The letter advised that in light of this behaviour, Tim Griffin was expressly prohibited from attending the office premises. The letter warned that if Tim Griffin did attend the premises without express written permission, the police would be called in order to protect the welfare of staff. The letter concluded by stating that any further communication would only be considered and responded to through Tim Griffin’s solicitor, and urged Tim Griffin to seek advice from a legal representative if he had not yet appointed one. (xxv) On 20 September 2023, the solicitors for the executors wrote a letter to the applicant which referred to previous requests for the collection of the applicant’s personal property from the deceased’s home. It further confirmed that the goods had been moved to the National Storage facility in Mitchell. The letter attached a photograph depicting the items held, which included toys, skis, and weights. The letter warned that pursuant to the Uncollected Goods Act 1996, the applicant was put on notice that he was required to attend the National Storage facility for collection of his goods within seven days, or otherwise arrange for the transfer of storage into his name. The letter advised that the applicant would be required to settle any balance of storage fees on collection of the goods, at that time totalling $137. The letter also advised that $264 was repayable to the Estate costs already incurred in respect of storage. (xxvi) On 6 October 2023, Tim Griffin sent a letter to the solicitor for the executors in response to the letter of 14 August 2023. In that letter he stated that he had sought legal advice from several sources, and that their advice was that he could not be required to correspond as a beneficiary to the Estate via solicitors only. He also “completely reject[ed] all of the allegations” levelled against him in the letter of 14 August 2023. Tim Griffin’s letter sought a formal written apology from the solicitor and the law firm, and withdrawal within seven calendar days. (xxvii) On 12 October 2023, the solicitor for the executors responded to Tim Griffin, stating that neither the solicitor nor any representative of the firm had made any allegations against him or sought to damage his reputation. The letter stated that members of the staff were apprehensive and felt threatened. The letter noted that the instructions of the executors were not to communicate with the applicant and Tim Griffin further as this would burden the Estate with further legal costs. The letter stated that they would not communicate or respond to further comments until such time as the executors otherwise instructed them. (xxviii) On 16 October 2023, a solicitor engaged by the applicant and Tim Griffin in relation to the Estate sent the solicitor for the executors a letter. That letter expressed their clients’ concerns with the current administration of the estate by the executors. The letter sought a full and detailed, albeit informal, accounting of the Estate. It also requested fully itemised accounts of the items sold by the Auction Barn, including what items were sold, and who to. The letter also requested an interim distribution of the funds from the sale of the Estate property, of no less than $250,000 per beneficiary. Finally, the letter sought information about why the Weetangera property had been sold at $1,150,000, which was $205,000 below the initial valuation; and in particular, why there had been a delay in selling the property, despite the agreement of the beneficiaries to do so as soon as possible “due to the worsening housing market”. (xxix) On 2 November 2023, the solicitor executors responded to the letter of 16 October 2023. That letter advised that no “informal accounting” would be provided at that stage, “since this is duplication and unnecessary”. The letter advised that, in broad terms, the Weetangera property sold for $1,150,000; liquidation of the share portfolio produced an amount of approximately $680,000; and bank account proceeds were approximately $90,000, totalling approximately $1,920,000 across the major Estate assets. The letter advised that an additional interim distribution of $250,000 was made on 27 October 2023. The letter explained that the Weetangera property could not be sold until after the grant of probate, which was on 11 November 2022. The letter noted that it was “generally not good practice” to market the property for sale in December or January, in view of the limited market interest in those months. The letter advised that the executors had received interest from four developers at a purchase price of approximately $1,300,000, but that after the developers were informed that they would not be able to successfully remove the large gum tree at the back of the property, their proposal was withdrawn. The letter noted that a real estate agent had been engaged in April 2023 to sell the property and that the property failed to meet a $1,200,000 reserve price at auction. The letter advised that the advice from the real estate agent was that notwithstanding the initial valuation, market conditions had changed such that the only offers received were just shy of $1,100,000. The letter noted that a deceased estate property similar to the deceased’s property sold for $950,000 around that time. On that basis, the executors proceeded with due diligence, explored every option to maximise the sale price, and in the circumstances obtained a reasonable price for the Weetangera property. In relation to the Auction Barn, the letter enclosed a Stock List Report of all items that were auctioned and sold. The letter noted that these items were of relatively little value compared with the three major Estate items (namely the shares, bank account proceeds, and Weetangera property). The letter stated that various attempts had been made to reach a consensus as to a distribution between family members of the personal property of the Estate, but an agreement was not able to be reached. The letter advised that as a result, the executors proceeded to dispose of any valueless items, and gave to charity any items which were saleable but would not realise any real value. The balance of the Estate chattels were provided to the Auction Barn. The letter advised that everything had been auctioned by the Auction Barn, except the boxes of personal items in relation to which the applicant and Tim Griffin had been asked on several occasions to examine. The letter observed that the executors had undertaken that process without having any obligation to consult with other beneficiaries as to whether the items could be taken in kind, noting that the Will imposed no obligation to do this. The letter also noted that all beneficiaries were entitled to bid at the auction, and noted Auction Barn postings by the applicant and Tim Griffin which included the usernames “Peterisafw” and “ItsMineItWasStolen!”. The letter attached a photograph of the items held in storage, as well as a handwritten note, which specified a number of items such as a pool table, bar, piano, and stereo with the names of various brothers marked next to the items. In addition, the annexed Stock List Report of the Auction Barn contained descriptions of the various items that were sold and the price that the item was sold for. The items sale price ranged from $10 to $710, with the majority of items sold for under $100. (xxx) On 15 December 2023 the applicant and Tim Griffin sent a letter to the solicitor for the executors expressing their disappointment with the response provided in the letter of 2 November 2023. In particular, the letter stated that they were not able to obtain any of their desired items, as they had all been sold before they were notified of the Auction Barn sale of chattel items. The letter noted that many items were sold without a reserve, and as a result sold below value, including an organ Tim Griffin wanted which sold for only $10 without Tim Griffin having the opportunity to bid on the organ. The letter stated that the process was not open, fair or transparent; that it was not in the terms of the Will; and that it was “in fact opaque, deliberate, and malicious”. The letter also sought further information concerning the accounting of the Estate, including copies of bank or other transactional or investment account statements; tax returns; invoices and emails received from the Auction Barn; the solicitors’ invoices; copies of any applications to remove trees including any arborist reports; and a declaration of all self-dealings by the executors against the estate, such as the use of a motor vehicle and residing the property. The letter also requested the presenting of all plants for distribution to all other beneficiaries; the provision of a true and independent valuation of all chattels, in particular for rings and other jewellery; and the provision of a detailed list of all chattels or estate assets that were disposed of or given to charity, with independent valuations. The letter further stated that items held in storage were to remain there until they were fully itemised, along with other chattels held by the executors. (xxxi) On 19 January 2024 the solicitors for the executors sent an email to the applicant and Tim Griffin, advising that the administration of the Estate had been completed and that the Estate could now be wound up upon payment of final beneficiary distributions. The email advised that no response would be provided to the letter of 15 December 2023 and indicated that responses to that letter had already been provided. The email concluded that, in order to finalise the Estate, the beneficiaries were required to sign an Acknowledgement and Release document confirming their entitlements and indemnifying the executors against any further claims. To this end, executor’s solicitor attached a copy of the Final Distribution Statement (the Distribution Statement) for the beneficiaries to review. The letter recommended that the beneficiaries seek independent legal advice about completion of the Acknowledgement and Release and the final distribution, and stated that if they were not prepared to allow the winding up the estate by way of final distribution, any further distributions payable would require a minimum of $100,000 to be held back to defend any further claims made or application brought in the Supreme Court. The letter noted that significant funds had already been expended in responding to “unfounded assertions”, and that they would be “sorry to see any further funds lost to unnecessary litigation”. (xxxii) The applicant and Tim Griffin each responded to this email expressing their dissatisfaction with this response. In those emails, reference was made to errors, anomalies and incorrect information that had been provided. (xxxiii) On 23 February 2024, the solicitors for the executors responded to those communications seeking particulars of the anomalies and incorrect information which were alleged, asking for the particular invoices and documents that were required, and noting that any application to the Court requesting the Estate file would be opposed. The solicitor stated that the executors were “astonished” about the requests made by the applicant and Tim Griffin, in particular for “all plants (potted or otherwise)”, and expressed the view that their application was “groundless”. The letter again requested that the necessary documentation previously provided be signed so as to enable the Estate to be distributed. (xxxiv) On 10 April 2024, the applicant and Tim Griffin sent a letter (incorrectly dated 10 January 2024) which again expressed their disappointment about the information and level of detail provided in connection with the winding up of the Estate. The letter stated that it was not up to them to provide any details, and that “a simple look at the figures” would show that there were “glaring mistakes eg shares net v gross”. The letter also stated that there are other figures that raised serious concerns, including “excessive and unsubstantiated personal expense claims, the mismatch between asset values compared with the Probate application e.g. the CBA term deposit, the Auction Barn sale proceeds vs auction sales data and what the property should have been worth”. The letter also stated that the executors had failed to answer and in many cases even respond to questions regarding the Estate, including why the executors sold many of the chattels via the Auction Barn without notifying all of the beneficiaries for several weeks, and until after most of the highly sentimental items were sold. (xxxv) On 23 May 2024, the solicitor for the executors sent a letter to the applicant and Tim Griffin. The letter stated that the executors had instructed them not to respond to issues which had been addressed in previous correspondence. The letter noted that the applicant and Tim Griffin had previously indicated that they would approach the Court to seek that the Estate accounts be passed. The letter advised that if it was their position that the Estate account should be passed, they should make the application, as the executors did not intend to burden the Estate with further unnecessary costs in circumstances where they did not believe that there were any facts or circumstances which would warrant the Court’s intervention. The letter advised that the executors had instructed them that they intended to make a further interim distribution of $50,000 to each of the beneficiaries with the remainder to be held pending the resolution of any application made to the Supreme Court by the applicant and Tim Griffin. The letter advised that the executors would be prepared to make a complete distribution and would prefer to do this, provided that the Acknowledgment and Release previously provided was signed. (xxxvi) On 27 June 2024, the executors’ solicitor sent separate letters to the applicant and to Tim Griffin, noting that each had threatened to make claims against the Estate and their firm. The letters rejected any allegation of mismanagement of the Estate and any allegation of professional negligence. The letters noted the previous distributions that had been made to the beneficiaries, and advised that a final and complete distribution of all remaining estate funds would be made within 30 days of the date of the letters. The letters advised that if the applicant or Tim Griffin failed to make any application that the executors pass the Estate accounts prior to final distribution being made, the executors would seek that the costs of any application be paid by the applicant and Tim Griffin personally, as there would be no Estate funds remaining to undertake the work. (xxxvii) On 18 July 2024, the applicant and Tim Griffin responded to the letters of 27 June 2024, rejecting the claims made within them. The letter repeated their concerns about the failure to notify them of the proposed sale of items at the Auction Barn. The letter said that they had “very serious concerns that the executors have something to hide and cover up, that they have breached their fiduciary duties, and that their representatives may have been implicit in the aiding and abetting their activity and subsequent attempt to cover it up by providing us false and misleading information”. The letter then provided formal notice of their rejection of the Distribution Statement as a true and proper record of the Estate finances. The letter concluded by providing notice that they would be applying to the Court for an order requiring the examination and passing of accounts of the executors of the Estate.

The application

12. On 2 December 2024, the applicant filed an application in proceeding seeking an order requiring the examination and passing of accounts of the executors of the Estate of the deceased.

13. The grounds of the application are that: • The Estate has not been administered in accordance with the Will. • Estate assets remain unaccounted for along with Beneficiaries personal property. • Informal accounts presented by Executors contain errors and [are] not supported by adequate documentation. Requests for this information was denied. • Executor’s [sic] and their solicitor would not provide any details surrounding the auctioning of Estate assets. • Reasonable requests for information were either ignored or not provided by the Executors and their solicitor. • Estate assets removed by Executors remain unaccounted for. Evidence in support of the application

14. The applicant relied on two affidavits affirmed on 2 December 2024 and 30 January 2025 respectively.

15. The 2 December 2024 affidavit repeated the grounds of the application as set out above and annexed a document setting out the following timeline of events:

22 Oct 22 Denied access to family home by Peter Griffin and Mark Griffin (Executors/ beneficiaries). They had changed the locks and were saying they are the Executors of the Estate and I have no right of access. This was prior to the Grant of Probate and any details of a Will.

22 Oct 22 Peter Griffin (Executor/beneficiary) threatened me by say [sic] he would hit me with the full force of the law if I didn’t cooperate with him and Mark Griffin.

22 Oct 22 I asked Mark Griffin (Executor/beneficiary) if he has removed the money tin from the hallway cupboard containing very valuable coins and notes, he said NO. Peter Griffin (Executor/beneficiary) lied by saying Mark Griffin (Executor/ beneficiary) had collected it and brought it to his place for safe keeping. The majority of the contents of the money box were removed by the executors.

22 Oct 22 Video taken of Estate property by Michael Griffin (non-executor beneficiary).

12 Nov 22 Approximate date – Grant of Probate (PRO 1054/2022).

4 Feb 23 Michael Griffin and Tim Griffin (non-executor beneficiaries) meet with Executors/beneficiaries at the Estate home to discuss the distribution of estate chattels, sale of Estate Property and transfer of shares to Beneficiaries. Agreement was made on the distribution of chattels including an antique Bar, Piano, Pool Table, Stereo etc. This was documented writing [sic] by Peter Griffin (Executor/ beneficiary). Further agreement was made to have jewellery, coins and stamp collections valued. Agreement was made to move forward on offer for the Estate home of $1,300,000.

Jul 23 onwards Executor’s nor Symons Phillips would not provide us with listings of auction items and lied by saying they weren’t available whereas the Auction Barn confirmed these were available and had provided the... Executors with listing of all items, The Auction Barn also provided them with a listing of items going up for auction. We were denied details of items being auctioned and the date of auction, we spent many hours looking for our parent’s property and ended up spending thousands of dollars buying items we thought looked like our parent’s property but were not.

October 2023 Received letters from Symons Phillips saying they would destroy a list of items they believed were my personal property by 20 December 2023. I asked then for a listing of the items in a photograph they provided, saying they were mine, they wouldn’t provide the listing, It was evident in the photo that some of the items were not my personal property. I made further requests and received no responses.

16. The affidavit then contained a series of further “points to note”, which alleged that the Estate had not been administered in accordance with the Will, and which accused the executors and their solicitors of acting with a lack of transparency; lying; administering the Estate to the detriment of the applicant and Tim Griffin; failing to respond to reasonable requests for information; failing to properly account for Estate assets and expenses; selling the deceased’s piano, contrary to her wishes; selling the Weetangera property for $305,000 less than valuation and refusing to reimburse funeral expenses incurred by the applicant, requiring the applicant to engage the services of a solicitor.

17. The 30 January 2025 affidavit annexed five separate documents addressing the application.

18. In the first document, the applicant particularised various acts of the respondents which, the applicant contended, demonstrated that the executors had not properly administered the Estate, including changing the locks on the Weetangera property; providing conflicting information about the Estate assets; and the fact that one executor “did not acknowledge [the applicant’s son’s] birthday”.

19. In the second document, the applicant listed the Estate assets alleged to have been unaccounted for, namely a signed Pro Hart limited edition painting; various coins, notes and stamps; a cuckoo clock; Swiss cow bells; silverware (tea pots and cutlery); jewellery; pot plants; family photographs and albums; a slide projector, family slides and movie reels; their parents’ personal effects; items passed in at the Auction Barn auction; and their father’s silver toolbox.

20. In the third document, the applicant listed personal items which he contended belong to him and “remain[ed] unaccounted for”. These included a timber clock; personal photographs; a train set; a weight set; Ryobi cordless gardening tools; work and general clothing; a 1975 gold Speedwell bicycle; a timber lamp; and a pair of skis and poles.

21. In the fourth document, the applicant particularised asserted errors in the Distribution Statement. These included shares inaccurately accounted for (for example, “Wesfarmers (WES) Net Received $30,976.95 Gross Sale $79,898.12”; and “Woolworths (WOW) Net received $78,579.80, gross $31,496.64”); a CBA term deposit that was said to have held $200,000, accruing interest, but the proceeds noted on the Distribution Statement were recorded as $193,284.92; proceeds from the Auction Barn were listed as $6,516.50, whereas the auction sale listings totalled approximately $18,000; personal expense payments were provided to the respondents, without details; legal fees did not reconcile with the Trust Account Statement; and a lack of details about the sale of the Weetangera property and in respect of the purchaser of the motor vehicle. Finally, the document noted that the “final” Estate accounts were issued on 19 August 2023, but additional costs appeared in a later document.

22. The fifth document provided particulars of the applicant’s concerns about the failure to advise all beneficiaries of the auction dates prior to them occurring. This document noted that there had been an agreement to have items such as the coins, stamps and jewellery valued, which did not occur, and also made reference to the sale of a piano, which the applicant stated had been sold at auction without his consent.

23. The sixth and seventh documents repeated the allegations that the respondents and their solicitor had not answered reasonable requests for information, and that estate assets removed by the executors remained unaccounted for.

24. The eighth document concerned the sale of the Weetangera property. In that document, the applicant reported that he had been invited into the Weetagera property by the new owners in December 2024. He stated that he was upset to see and hear that pots and pot plants remained the property; the backyard had been extensively cleared, including pruning the gum tree in the centre of the backyard; the new owners were building a house in the backyard and had permission to remove a significant amount of the gum tree, and were seeking to have it entirely removed; the new owners were friends with the real estate agent who sold the property; and the new owners “couldn’t believe how cheap they got the property”. The applicant stated that he was “livered [sic] to know this, particularly as the Estate home was sold well below valuation.”

25. The ninth document was an affidavit of Tim Griffin, also affirmed on 30 January 2025. In that document, Tim Griffin echoed the concerns that had been raised by the applicant in his affidavit, in particular, concerning the coin collection and the Pro Hart print; the auctioning of estate assets via the Auction Barn without notifying all beneficiaries; the alleged errors in the Distribution Statement and the Trust Account Statement; Estate assets that were said to be unaccounted for; and the sale of the Weetangera property. The affidavit also addressed Tim Griffin’s visit to the respondent’s lawyers on 4 August 2023. Tim Griffin denied that he had acted inappropriately during that visit, and contended that the drafting of letters containing false allegations concerning that visit should not be included in the cost to the Estate.

26. Finally, the applicant relied on documents which he had obtained on subpoena from the Auction Barn, the respondent’s solicitors, Mark Griffin and Peter Griffin.

27. The documents produced by the Auction Barn disclose that at least some of the items were sold at auction to members of the respondents’ families. For example, an invoice dated 27 June 2023 records that “Chris Stokes-Griffin” purchased a bedside table, a wooden stereo cabinet with Pioneer Sound System and an oak veneer coffee table for $2,194.03. Other items were purchased by Mark Griffin, Peter Griffin and Laura Griffin.

28. The applicant also drew the Court’s attention to an email in the documents produced by the Auction Barn, in which Peter Griffin and Mark Griffin discussed what to do with the items that were not sold at auction. The email, which is dated 29 July 2023, states: Hi Mark, I can collect them, the question is what we do with them? We can leave them to the two beneficiaries if they come, problem is they will want a list of all sold and unsold items. While I don’t have a problem with this, given their demeanour it is more likely to lead to more of their vitriol at a time when we want to finalise the Estate. Further, no indication of whether they are coming or not. Maybe donate to charity is an option for some items, magazines for example bin. Your thoughts? Pete Evidence in response to the application

29. In their response to the application, the respondents relied on an affidavit of Peter Griffin, affirmed on 11 April 2025 and an affidavit of the respondent’s solicitor, affirmed on 11 December 2024.

30. In his affidavit, Peter Griffin addressed some of the claims made by the applicant. Those responses were as follows: (i) The “Pro Hart” was a signed print, not a painting. That print was said to be Mark Griffin’s personal property that he won at a workplace “happy hour” in the mid- 1990s and had stored at his mother’s house. He removed the print from the house; (ii) The “coins and stamps” were distributed amongst the beneficiaries on 5 February 2023 at the Weetangera property; (iii) The “Cuckoo Clock” was said to be Mark Griffin’s personal property, which he purchased in Switzerland and had left with his mother; (iv) The “Cow bells”, slide projector, toolbox, model ships and all silverware were collected and sold at auction by the Auction Barn with all proceeds going to the Estate; (v) The applicant and Tim Griffin had each stated that they did not want the plants that were in the Weetangera property. Most of the plants were left at the Weetangera property. All undamaged pots were collected and went to the Auction Barn for sale; (vi) The family photographs and albums were placed in boxes and put in the garage at the Weetangera property for beneficiaries to divide. These items were available on 5 February 2023 when the applicant and Tim Griffin were invited to attend the property. They each left the premises without any desire to divide the photographs and albums up. The respondents invited the applicant and Tim Griffin to attend the property again on 12 August 2023 prior to the settlement of the property, to collect their remaining personal belongings, and to divide up the photographs and albums and the remaining personal effects of their parents. The applicant did not attend. Tim Griffin attended on that day to remove the security cameras he alleged he purchased and installed, and to clean out his remaining personal effects. Tim Griffin was shown the photographs and albums and remaining personal items of their parents, along with some unsold Auction Barn items. He expressed no interest in the photographs, albums or other items. (vii) Household chattels that were passed in at auction had no monetary value. Those items were either sent to charity, disposed of by the Auction Barn on agreement with the executors, or returned to the Weetangera property for distribution. Soiled items could not be offered for sale, and were disposed of by the Auction Barn, including, for example, lounges.

31. Peter Griffin explained that the executors had been unable to discern the applicant’s actual personal belongings. He stated that the train set, the weight set, workwear and other clothing, the bike (which was a cut down frame), and the skis and poles had been placed in storage, and that on the termination of the storage lease, the property was disposed of to minimise ongoing fees incurred by the Estate. The timber lamp, timber clock and photographs were also placed in storage, but on the termination of the lease, were placed in a box containing the applicant’s personal belongings. It was also noted that some “Ryobi Garden Tools” were sent to the Auction Barn for sale, as the executors considered them to be the deceased’s property.

32. In his affidavit, the respondent’s solicitor annexed the correspondence summarised at [11․ above, and affirmed the following:

(a) The estate has been administrated in full and in accordance with the terms of the Deceased’s Will. (b) Mark and Peter have carried out their duties as executors in accordance with their fiduciary and statutory obligations. (c) All assets of the estate have been realised and accounted for. (d) My firm has provided on behalf of the executors complete information to Tim and Michael and their previous solicitors in respect of the accounts and all aspects of the administration of the estate. (e) Responses to requests made by Tim and Michael were provided in respect of all estate assets based on the correspondence referred to in this my Affidavit. (f) The estate was ready to be fully administered from late October 2023. The extensive delays in distributing the estate were a direct result of Tim and Michael’s repeats [sic] to obstruct the administration process. Legislation and relevant principles

Orders for the examination and passing of accounts

33. Rule 2746 of the Court Procedure Rules 2006 (ACT) empowers the Court to make an order requiring the examination and passing of accounts. Rule 2746 relevantly provides as follows: Estate and trust accounts—order requiring examination and passing of accounts (1) A beneficiary of an estate or trust property may apply to the court for an order requiring the examination and passing of accounts of the executor or administrator of the estate or the trustee of the trust property. (2) An application by a beneficiary of an estate must be made in the proceeding in which the grant of representation for the estate was made. Note Pt 6.2 (Applications in proceedings) applies to the application. (3) An application by a beneficiary of a trust property must be made by originating application. Note Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. (4) The application must be accompanied by an affidavit stating the reasons for the application. (5) The applicant must serve a sealed or stamped copy of the application and supporting affidavit on the executor or administrator of the estate or the trustee of the trust property. (6) On application under this rule, the court may make the orders it considers appropriate, including an order requiring the examination and passing of accounts.

34. Where an order is made under r 2746, r 2747 then requires as follows: Estate and trust accounts—compliance with order for examination and passing of accounts (1) This rule applies if the court makes an order under rule 2746 requiring the examination and passing of accounts of the executor or administrator of an estate or the trustee of a trust property. (2) Unless the court otherwise orders, not later than 3 months after the day the order is served on the executor, administrator or trustee, the executor, administrator or trustee must— (a) file the accounts; and (b) make an appointment with the registrar to have the accounts examined. (3) The executor, administrator or trustee must attend the appointment. (4) The accounts must be— (a) full and correct; and (b) verified by affidavit. Note See approved form 2.79 (Executor’s, administrator’s or trustee’s affidavit and account) AF2006-324. (5) If the executor or administrator fails to comply with the order, the court may, on application by the beneficiary who applied for the order, direct that the proceeding the court considers appropriate be taken against the executor or administrator. Note Pt 6.2 (Applications in proceedings) applies to the application.

35. In his decision in The Estate of Barbara Dawn Orre (Supreme Court of New South Wales, Powell J, 19 December 1991), Powell J explained that the function of an examination and passing of accounts is: … not merely to see that sums entered on the disbursement side of the Accounts have in fact been disbursed and proper vouchers and receipts produced, but rather, is one akin to that of an auditor, concerned not only with ascertaining whether alleged disbursements have in fact been made, but also with determining whether disbursements have been properly, or improperly made, in the latter case of which the disbursements are to be disallowed… See similarly The Estate of Frances Kedesch Michell [2020] NSWSC 1300 at [114] – [126].

36. This task is done by a registrar, who: (a) will compare the capital realisations, as shown in the accounts, with the assets listed in the inventory attached to the probate or letters of administration, the purpose of the comparison being to make sure that assets have been correctly collected, and in order to assess the extent to which asset collections are the collections of reinvested assets. (Commission is not allowable on the realisations of reinvested assets.) (b) will look at the income collections to make sure that income has been collected correctly. (c) will ensure that assets collected are correctly shown amongst the capital realisations, and that the income is shown correctly amongst the income collections, and not vice-versa. (d) will consider payment details in order to ensure that they have been allocated correctly between capital and income. (e) will require production of bills for legal costs, accountancy fees, and other charges for professional work, or require an explanation for its absence, to ensure that the charges for which payments have been made are appropriate and reasonable, and necessary for the benefit of the administration of the estate. (f) will seek evidence of publication of the notice of intention to pass accounts. (g) will check the distributions made to any of the beneficiaries (commission is not allowable if no distributions are made). (h) will seek confirmation of the balance held to the credit of the estate at the close of the accounts; (i) will require the production of receipts for distributions to beneficiaries. (j) will consider the objections of any objector to the proceedings to pass accounts and determine whether the objections should be allowed or be disallowed. (k) may moderate charges that are wholly unwarranted, or on the basis that they are excessive: In the Will of Lucas-Tooth (No 2) (1932) 50 WN (NSW) 86 at 87 (Harvey CJ in Eq) and allow them in full, or direct that refunds be made of amounts not considered appropriate, reasonable and necessary. (l) may review other aspects of the accounts, as filed, that she, or he considers necessary. See Estate of Michell at [126].

37. When examining and passing the accounts, the Registrar does not have jurisdiction to determine which assets are comprised in the estate: In the Will of Annie Sarina (1925) 42 WN (NSW) 186.

38. Once the Registrar is satisfied with the accounts: …she, or he, will provide details of the total capital realisations, the total income collections and the total value of assets transferred in specie and will then request the provision of a draft certificate of correctness of accounts. If that is in order, the Registrar will issue the certificate of correctness. The figures in the certificate become the figures for determination of commission, and the assessment of costs for the preparation and filing of the accounts and of any application for commission. See Estate of Michell at [137].

When should an order for the examination and passing of accounts be made?

39. There are no authorities which have considered the application of rr 2646 and 2647 in the ACT. However, there are decisions which have considered the application of equivalent rules in other jurisdictions.

40. It is clear both from those authorities, and from the text of r 2746(6), that the making of an order for the examination and passing of accounts is discretionary: Gatt v Vella [2024] NSWSC 1009 at [52] and the cases cited therein; Helg v Sergiacomi [2011] QSC 322 at [10]; Hons v Hons [2010] NSWSC 247; 3 ASTLR 278 at [101] – [110].

41. Of course, as with any discretionary decision, the decision whether to make an order for an examination and passing of accounts will be fact dependent. Nonetheless, it is helpful to consider some of these authorities in greater detail, particularly because they each illustrate pragmatic solutions which have been adopted as alternatives to the costly exercise of examining and passing accounts.

42. Hons concerned an application for the passing and filing of accounts under s 85 of the Probate and Administration Act 1898 (NSW). The plaintiffs were four of the six children of the deceased. Their brother had been granted letters of administration with respect to the estate. Various issues were raised in the application, including whether the executor had been required at law to file accounts (there was a statutory obligation, which was later removed), and whether the plaintiffs were disentitled to an order because of acquiescence or delay.

43. Justice Ward (as her Honour then was) ultimately determined not to make an order for the examination and passing of accounts. Central to this determination was the applicant’s “considerable” delay in taking action to enforce the obligation: Hons at [119]. Her Honour explained: … the consequence of no steps having been taken at an earlier stage to demand or compel the production of accounts is that [the executor] was not put on notice until at least 2003 of the need to prepare or retain records in relation to the administration. In 1988, he considered the administration to be finalised. I accept the evidence of [the executor] that he does not now have the records necessary in order to comply with what he has been advised would now be required for the filing of accounts in accordance with the rules of court.

44. Her Honour added that, had she been of the view that it was appropriate to order the filing of accounts, she would have “fashioned the relief such that all [the executor] would have been required to file would be [a draft report, that had been previously prepared] and any material referred to in it which is in [the executor’s] possession and that the exercise of taking accounts be at the plaintiff’s expense”: Hons at [131].

45. Gatt also concerned an application for the passing and filing of accounts under s 85 of the Probate and Administration Act 1898 (NSW). As in the present case, the applicants for the order were two of four siblings who were beneficiaries under the will of their late parent (their father). Their sister was appointed as executrix of the will. The application was resisted by the executrix on the grounds that “the application is late and no grounds to make an order have been established, and because nothing has been raised which calls into question the accuracy of the defendant’s calculations leading to the distribution of the estate”: Gatt at [3].

46. In considering the application, Slattery J set out the relevant principles concerning the obligation of a trustee to provide trust documents and information: Gatt at [48] – [51]. Slattery J found that the executrix had been wrong to assert that the beneficiary was only entitled to inspect the accounts on the premises of the executrix’s lawyers (at [29]). However, his Honour declined to order a formal passing of accounts for the following reasons (at [53]): First, application for such an order should have been made well before the distribution of the estate and much closer to the executrix’s November 2021 [Probate and Administration Act], s 92 notice of intended distribution. Secondly, the additional burdensome work and cost that is required in creating s 85 accounts is not warranted here, when the executrix has allowed some inspection and following that inspection the plaintiffs can still on this application not point to anything of substance indicating maladministration [of] the estate more than the need for an assurance that the estate has been properly administered. Thirdly, as the very approximate analysis of the numbers set out below shows, there does not appear to be an obvious question mark over the financial administration of the estate. Fourthly, the Court does not see why the estate and the executrix should be put to that trouble and expense without an undertaking from the plaintiff to pay reasonable commission to the executrix. Finally, a far simpler solution is at hand, as the discussion below shows.

47. The “far simpler solution” proposed by Slattery J was an order “that the defendant shall at the plaintiffs’ expense provide to the plaintiffs within 28 days copies for inspection by the plaintiffs of the accounts of the estate of the late Charles Gatt kept by the defendant in the ordinary course of the execution of her duties as executrix of the said estate”.

48. A similar pragmatic solution was adopted by McMeekin J in Helg, which concerned an application for an order requiring the examination and passing of accounts pursuant to r 644 of the Uniform Civil Procedure Rules 1999 (Qld). The applicant in Helg was the daughter of the deceased, and a beneficiary under his will. Her brothers were appointed executors of the will. They opposed the making of an order for the examination and passing of accounts, on the basis that the applicant (who was self-represented) had failed to demonstrate that there were any discrepancies in their handling of the estate, or any irregularities which would raise the concerns of the Court.

49. Justice McMeekin expressed the principles to be applied as follows (at [10]): Both the legislative provision and the rule make it plain that the respondents’ submission that an order for the examination and passing of executor’s accounts is not for the asking is correct: see Re Schilling [1995] 1 Qd R 696. The terms of the rule indicate that a reason must be stated and that reason when identified must, at least, lead the Court to the view that the making of an order is “appropriate”. Evidence suggesting grounds for concern about the conduct of the executors and indicative that the applicant’s rights may have been adversely affected, albeit not conclusively shown, would be sufficient.

50. The applicant in Helg was unrepresented, and a number of her complaints were unclear, and lacked relevance or supporting evidence: Helg at [13]. However, there was one matter raised by the applicant which caused McMeekin J concern, which related to income from a shopping centre over a period of about two years: Gatt at [99]. His Honour considered that “but for two matters”, that concern would be sufficient to require an examination and passing of the executor’s accounts. These matters were first, that it was not clear that the applicant (or the Court) were in possession of all of the relevant bank statements for the relevant account; second, there was a suggestion that the income from the shopping centre may have been deposited into a different account: Gatt at [100] – [101]. His Honour noted there was a strong inference that the respondents had conducted themselves properly, but noted that they had not addressed the applicant’s “express complaint” in their evidence. In those circumstances, McMeekin J determined that the appropriate course was to direct that the respondents filed “such further affidavit as they may be advised” which addressed this issue. His Honour explained (at [106]) that he was: … reluctant to put either the estate or any one of the beneficiaries (and I include in that Ms Helg) to the expense of an examination and passing of accounts if the concerns raised by Ms Helg can be simply addressed by a more complete affidavit from the respondents explaining the arrangements that they made, the distributions that were made and annexing the bank statements applicable to the accounts that have been opened and into which the income from the shopping centre has been placed and distributed following the death of the deceased.

51. Further, McMeekin J also identified that there were seven withdrawals from the deceased’s bank records on the date of the deceased’s death, or later, which had not been explained. His Honour anticipated that these payments may have been with respect to cheques that were written out before the deceased’s death, and presented after, but was concerned about the absence of direct evidence concerning this matter. His Honour accordingly took the same approach to this issue, noting (at [122]): Again, I would be reluctant to require a full examination of all accounts based on what may be an easily explained oversight in relation to a relatively modest sum of money. Again it seems to me that given the serious nature of the allegations made I should not operate on inference where there is, or may be, direct evidence available.

52. The executors subsequently responded by filing a further affidavit, as directed, supplemented by oral evidence from one of the executors. After considering this evidence, his Honour dismissed the application: Helg v Sergiacomi (No 2) [2011] QSC 349.

Determination

Overview

53. The applicant contended that an order for an examination and passing of accounts should be made because: (a) The Weetangera property was sold for “$300,000 under [its] valuation”; (b) Items said to be within the Estate remain unaccounted for, including a Pro Hart print, coin and stamp collection, pot plants, a toolbox and two model ships. Term deposits and cash were also said to be unaccounted or improperly accounted for; (c) The personal expenses of the executors were excessive and were not disclosed; (d) The proceeds of the sale of property at the Auction Barn according to the Auction Barn stock list is $11,000 higher than the proceeds listed in the Distribution Statement; (e) Shares are inaccurately accounted for, for example, the “Wesfarmers net receive was $30,976.95”, but the “gross sale was $79,898.12”; (f) No details have been provided concerning the sale of the motor vehicle. The applicant is concerned that it may have been sold to a family member of one of the executors; and (g) The executors had improperly sold chattels of the Estate at auction, without first notifying other beneficiaries of the date of the auction, depriving those beneficiaries of the ability to bid on items which they wished to buy and providing “the executors… [with] a clear unfair advantage… to obtain all of their items that they wished”.

54. These allegations are separately addressed below.

The sale of the Weetangera property

55. The applicant complains that the Weetangera property was sold for approximately $300,000 under value. There is no substance to this complaint.

56. The respondents acted entirely appropriately in obtaining a report from an arborist in before arranging for the felling of the gum tree. Once the advice was received that the gum tree could not lawfully be felled, the property was less attractive to developers, and hence of less value.

57. The nature of real estate is that it is subject to fluctuations in value. In the correspondence, the applicant and Tim Griffin themselves referred to the downturn in the property market at the time of sale. The fact that the property did not sell at an earlier time was not the fault of the respondents. The sale of the property could not proceed until after investigations had been made concerning removal of the gum tree, and after the deceased’s personal possessions had been removed from the house.

Items within the Estate that are alleged to remain unaccounted for

58. As noted above, in his affidavit dated 30 January 2025, the applicant alleged that various items and moneys have not been accounted for in the documentation that has been produced by the respondents to date. These included assets of the Estate, as listed at [19․]; personal items belonging to the applicant, as listed at [20․]; as well as term deposits and cash.

59. As further noted above, in his affidavit, Peter Griffin provided a response to these allegations. In brief, he said that various of the items were not part of the Estate, as they were the personal property of himself and Mark Griffin (eg the Pro Hart print and the cuckoo clock); some items (eg the coin and stamp collections) were distributed to all beneficiaries; other items were sold at auction (eg the cow bells, toolbox and model ships); the applicant and Tim Griffin showed no interest in the photographs and albums; and most pot plants were left at the Weetangera property after the applicant and Tim Griffin said that they did not want them. The executors deny that there were other term deposits or cash which have not been accounted for.

60. It is not possible or appropriate to resolve these factual disputes in the present application. As counsel for the respondent submitted, an order requiring the examination and passing of accounts is not a procedure which is capable of resolving these factual disputes.

Personal expenses of the executors

61. The applicant and Tim Griffin were provided with the Final Distribution Statement on 15 January 2024. It does not appear that were provided with a Distribution Statement after that time. However, the solicitors’ trust account records indicate that the only transactions that have occurred after 15 January 2024 were further interim distributions to all beneficiaries ($50,000 on 4 June 2024, and a final distribution of $10,884.57 on 19 August 2024), and payments to the respondent’s solicitors ($6,600 on 16 August 2024) and barrister ($1,100 on 7 May 2024).

62. The 15 January 2024 Distribution Statement contained the following entries: Less reimbursement MG Griffin estate costs (25/01/23) ($27,666.29) Less reimbursement PJ Griffin estate costs (25/01/23) ($3,998.23) Less Reimbursement MJ Griffin – wake and memorial ($1,520.20) Less Reimbursement Mark Griffin estate costs ($11,005.32) Less reimbursement Peter Griffin estate costs ($5,191.70) Less reimbursement PJ Griffin incl storage costs ($932.79) Less reimbursement P Griffin estate costs incl storage ($168.05)

63. The total of the reimbursements set out in the Distribution Statement is $50,482.58.

64. Until the commencement of the present proceedings, the respondents and their lawyers had not provided any particulars of the reimbursements, other than the limited details specified above (ie that $1,520 was attributable to the “wake and memorial” which had been reimbursed to the applicant and a portion of the $932.79 and $168.05 was attributable to “storage costs”).

65. The trust account records contain some further particulars concerning these reimbursements. Specifically, the trust account records specify that the payment to Peter Griffin of $5,191.70 was made for “plaque memorial, rubbish removal, utilities and transport re Gillespie Street” on 4 July 2023 and the payment to Mark Griffin of $11,005.32 was made to Peter Griffin for “insurance payments, utilities, tree removal and petrol”. The remaining reimbursements remain unparticularised. The alleged discrepancy between the Auction Barn stock list and the Distribution Statement

66. As noted above, on 2 November 2023, the respondents’ solicitor provided the applicant with the Stock List Report from the Auction Barn. The Stock List contains a list of all items sold at auction, and the date received, the date of the auction, and the winning bid for each item.

67. The Stock List Report does not contain a record of the total amount received from the sale of each of the items. The applicant has calculated that the total amount of all items sold is approximately $18,000. On a rough estimate, this calculation appears to be correct. The applicant contends that this is inconsistent with the Distribution Statement, which records that the Estate only received $6,516.50 as the “total proceeds from the Auction Barn”.

68. This discrepancy is answered by the documents that were produced by the Auction Barn. Those documents demonstrate that there were significant costs to the Estate that were incurred as a result of the auctions that do not appear in the Stock List Report (which is, as its title indicates, simply a list of the stock sold).

69. Specifically, the documents produced by Auction Barn contain the agreement that was entered into by Mark Griffin and Peter Griffin with the Auction Barn (the Agreement) and Vendors Statements and Tax Invoices for the items sold by the Auction Barn. The Agreement and the Invoices indicate that there was a lotting fee of $10 that was charged for each item sold (with larger items incurring a higher fee), and that the Auction Barn charged a 22.5% commission on all items sold. As a result, the amount received by the Estate for the sale of each item was considerably less than the amount that the item was sold for. For example, where a collection of “ten books on a diverse and interesting aspects of war” was sold for $25, after the deduction of the lotting fee and the commission, the total payable to the vendor (here, ultimately the Estate), was only $9.37.

70. The Agreement also states that a truck cartage fee of $165 per hour applied. An email sent from Stan Jordan of the Auction Barn to Mark Griffin, dated 25 October 2023 records that the total sales (following commission and lot fees) of the auction was $8,207.75, less cartage of $825 and $866.25, with $6,516.50 to be paid to the Estate. That is the amount that appears in both the Trust Account Report and the Distribution Statement as received from the Auction Barn sales.

The shares

71. The Distribution Statement contains particulars of the share sale proceeds for shares held by the deceased in various companies, including, but not limited to Commonwealth Bank, Orica, Telstra, Wesfarmers and Woolworths, as well as particulars of share dividends that were received from Endeavour, Wesfarmers and Woolworths. The figures recorded in the column “net received” for each share company and each dividend exactly matches the record of the amount of money received for each in the Trust Account Statement.

72. The applicant contended that there are errors in these records evidenced by the fact that the “gross sale” for Wesfarmers was $79,898.12, whereas the net figure was only $30,976.95 and the “net received” for Woolworths is recorded as $78,579.80, which is higher than the “gross sale” for Woolworths of $31,496.64.

73. The gross sale of the shares is the price that was obtained for the shares. The net received is the total sum which is obtained by the Estate. The fact that there is no correlation between the gross sale and the net received for these companies does not indicate that there is any error in the records. There may be other matters (such as franking credits or brokerage fees) which have affected the amount which was received by the Estate from the sale of the shares. Alternatively, the records for the Wesfarmers and Woolworths dividends may have been inadvertently ‘mixed up’ in the Distribution Statement – i.e., the gross sale of $79,898.12 recorded for Wesfarmers appears to better match the net figure of $78,579.80 recorded for Woolworths. Similarly, the gross sale of $31,496.64 for Woolworths appears to align with the net figure of $30,976.95 recorded for Wesfarmers.

The sale of the motor vehicle

74. The Distribution Statement and the Trust Account Statement each record that $8,500 was received as “proceeds from sale of motor vehicle”. There is no information before the Court as to the identity of the person who purchased the motor vehicle.

The process by which items were sold at auction.

75. The documents produced on subpoena by the Auction Barn record that: (i) On 7 March 2023, Mark Griffin first approached the Auction Barn to arrange for the selling of the deceased’s personal effects and property; (ii) On 6 June 2023, Mark Griffin entered into an agreement with the Auction Barn to sell these items; (iii) Items were received by the Auction Barn on various dates in late June, July and August; and (iv) Items were auctioned on various dates from approximately 26 June 2023 to 12 September 2023.

76. The correspondence annexed to the respondents’ solicitors’ affidavit indicates that the applicant and Tim Griffin were first informed that the auction was proceeding in an email that was sent on 20 July 2023. This was after a number of items had been sold at auction.

77. Importantly, as noted at [27․], documents produced by the Auction Barn also record that the respondents and their family members successfully bid on a number of items in the period before the applicant and Tim Griffin were informed of the auction. For example, a receipt issued to Chris Stokes-Griffin records that he made purchases totalling $2,194.03 (for a bedside table, stereo cabinet and coffee table) on 27 June 2023.

The appropriate orders to make

78. There is no substance to the applicant’s allegation that there was anything untoward in the sale of the Weetangera property; nor are there any obvious discrepancies in the financial information that is presently available. Whilst there are disputes as to the ownership of some property which was within the Weetangera property prior to sale, I am not in a position to resolve those disputes, nor could an examination and passing of accounts resolve, or remedy, those disputes.

79. However, I have been troubled by the conduct of the executors with respect to the process of the auction. The respondents not only arranged for items from the Estate to be sold at auction without informing the other beneficiaries of the date and place of the auction; they and their family members then bid on a number of those items and acquired them for themselves. There is substance in the applicant’s complaint that the failure of the respondents to provide prior notification of those auctions to himself and Tim Griffin deprived the applicant and Tim Griffin of the ability to bid on items which they wished to buy and provided the executors with an unfair advantage to obtain the items that they wished without competition from the other beneficiaries of the Estate.

80. It is not necessary, nor appropriate, in an application of this nature to make any findings as to whether there has been a breach of a fiduciary duty, or whether the respondents acted with the intent of securing an unfair advantage to themselves. All that is necessary to conclude is that there is “grounds for concern about the conduct of the executors and indicative that the applicant’s rights may have been adversely affected, albeit not conclusively shown”: Helg at [10]. I am so satisfied.

81. However, it does not automatically follow that an order should be made for examination and passing of the accounts. The power conferred by r 2746 is discretionary. The examination and passing of accounts is costly and time consuming. The correspondence outlined above and the Trust Account Statement indicates that the Estate has now been fully distributed, and that that distribution followed a warning by the respondents’ solicitor that this would occur. As a consequence, there are no funds available in the Estate to pay for an examination and passing of accounts. Finally, the procedure under r 2746 would not determine whether the conduct of the respondents with respect to the Auction Barn constitutes a breach of a fiduciary duty, nor would any breach of a fiduciary duty be remedied by an order under r 2746. A further application would be required.

82. On the other hand, whilst there are no obvious discrepancies within the financial accounts presently available, the conduct of the respondents in connection with the sale of the deceased’s personal property through the Auction Barn raises the spectre that there may be other irregularities in the respondents’ dealings with the assets of the Estate. In these circumstances, the absence of further particulars concerning matters such as the reimbursement of the respondents for “estate costs”, the sale of the shares, and the identity of the person to whom the deceased’s motor vehicle was sold assume a significance that they would not otherwise have had.

83. Ultimately, I have determined that it is appropriate to follow the approach of McMeekin J in Helg. Specifically, before making a final determination, I will provide the respondents with an opportunity to file a further affidavit annexing the following: (i) Documentation concerning the sale of the shares (in particular, which explains how the “gross sale” and “net received” figures were arrived at, such as any document issued by the broker upon the sale of the shares); (ii) Documentation concerning the sale of the motor vehicle, which records the purchaser of the motor vehicle and how it was sold; and (iii) Documentation concerning the reimbursements that the respondents have received for “estate costs” (for example, receipts).

84. To be clear, what I have proposed is an invitation and not an order. After the respondents have had an opportunity to consider whether to accede to this invitation, I will hear briefly from the parties as to whether the order for examination and passing of the accounts should be made. Orders

85. For the above reasons, the following orders are made: (1) The respondents are to file any further evidence addressing the matters set out at [83] of this judgment on or before 28 February 2026; (2) The proceedings are listed for mention on 5 March 2026 at 9am; (3) The parties and their legal representatives have leave to appear via Audio Visual Link at that mention.

I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: Date: 6 February 2026