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[2026] ACTSC 108
Supreme Court of the ACT
2026-04-24
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: In the Estate of Georgina Price Bailey Citation: [2026] ACTSC 108 Hearing Date: 13 March 2026 Decision Date: 24 April 2026 Before: Muller J Decision: (1) The application in proceeding lodged on 11 December 2025 is dismissed. (2) The applicant is to pay the respondent’s costs of and incidental to the application. Catchwords: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Application for passing of accounts – where applicant dissatisfied with increased legal expenses drawn from estate – where previous deed of settlement precluded future claim – application dismissed Legislation Cited: Administration and Probate Act 1929 (ACT), s 58 Court Procedures Rules 2006 (ACT), rr 2646, 2647, 2746 Trustee Act 1925 (ACT), s 75 Cases Cited: Helg v Sergiacomi [2011] QSC 322 In the Estate of Mildred Evelyn Griffin [2026] ACTSC 21 Parties: G. Clow (Applicant) G. Booker (Respondent) Representation: Counsel Self-represented (Applicant) W. Sharwood (Respondent) Solicitors Self-represented (Applicant) Bradley Allen Love (Respondent) File Number: PRO 467 of 2023 MULLER J:
Georgina Price Bailey (Ms Bailey) died on 31 August 2022. She was survived by her two adult children, Alec and Emily. She was also survived by her de facto partner Geoffrey Clow.
Ms Bailey executed a document purporting to be a will on 8 June 2014. She appointed her father, Graeme Booker, as her executor. After payment of debts, funeral and testamentary expenses she left the entire residue of her estate to Alec and Emily as tenants in common in equal shares. A grant of probate of the will was made in favour of Mr Booker on 12 May 2023. The gross value of Ms Bailey’s estate was $1,480,770.21.
On 6 October 2023 Mr Clow commenced family provision proceedings in this Court. The family provision proceedings resolved, and the agreement reached between the parties is recorded in a deed of settlement dated 8 July 2024. The estate was then distributed in accordance with the terms of the deed.
Mr Clow believes the financial position of the estate altered significantly between the date of entry of the deed and the time of the final distribution of the estate. He believes there are a number of inconsistencies or unsatisfactory outcomes in his review of the estate’s accounts. It is on that basis he now makes an application seeking orders for the executor to file and pass verified accounts, purportedly pursuant to s 75 of the Trustee Act 1925 (ACT). The executor opposes Mr Clow’s application. He makes his own application seeking orders: (a) dismissing Mr Clow’s application with costs; or alternatively (b) joining Emma and Alec to these proceedings and seeking an indemnity from them in relation to Mr Clow’s application.
Mr Clow reads his own affidavits affirmed on 11 December 2025 and 10 March 2026.
The executor reads an affidavit of Perry Lewis Cabban, solicitor, affirmed on 5 March 2026.
The Court’s power to require verified accounts
Although Mr Clow’s application relies on s 75 of the Trustee Act the parties recognised, in submissions before me, the applicable provision is s 58 of the Administration and Probate Act 1929 (ACT) which provides: 58 Examination and passing of accounts etc (1) The rules may require— (a) the executor or administrator of the estate of a deceased person to file an inventory of the estate; and (b) accounts of the executor or administrator of the estate of a deceased person to be examined and passed. (2) The Supreme Court may, by order, require— (a) the executor or administrator of the estate of a deceased person to file an inventory of the estate; and (b) accounts of the executor or administrator of the estate of a deceased person to be examined and passed. (3) An order of the Supreme Court passing an account of the executor or administrator of the estate of a deceased person— (a) is evidence of its correctness; and (b) operates, after the end of 3 years after the date of the order, to release the executor or administrator. (4) However, subsection (3) (b) does not apply to an account as far as someone interested in the estate shows that an error or omission or fraudulent entry has been made in the account.
In addition to the express power in s 58 of the Administration and Probate Act, the Court has power to make an order requiring the examination and passing of accounts pursuant to r 2746 of the Court Procedures Rules 2006 (ACT). The power to make an order for the passing of accounts is inherently discretionary.
Why are verified accounts required?
Mr Clow relies primarily on the following matters in support of his argument: (a) he is a residuary beneficiary of the estate; (b) he is unable to understand the basis for significant changes in the estate’s net position, namely, a reduction of approximately $120,000 in the sum ultimately available for distribution when compared with the estimated sum at the time the deed was entered; (c) the inadequately explained increase in the estate’s legal expenses; (d) some less significant inconsistencies such as an ActewAGL account credit of approximately $1,200 that has not been accounted for.
The affidavit evidence relied upon by Mr Clow raises a number of other criticisms of the executor’s conduct in the management of the estate. He is critical of the lack of opportunity afforded him to understand the substance and effect of the deed, because of the failure to disclose to him critical documents prior to its execution. In that regard, I note that Mr Clow was legally represented in the course of the negotiations resulting in the finalisation of terms and execution of the deed of settlement. Mr Clow is somewhat critical of his own legal advisor in failing to adequately explain the meaning and import of the deed terms. In raising those criticisms, he recognises some of the terms of the deed operate as a bar to further action on the complaints he now seeks to make about the conduct of the executor and the executor’s legal representatives.
The executor’s response
The executor relies primarily on the plain words of the deed of settlement, which is in evidence before me. He highlights the following provisions: (a) Clause 9.1 provides for the complete release and discharge of the executor, including in his personal capacity, from any claims, with claims defined to include the passing of accounts; (b) Clause 6.1 deals with legal costs and records the parties agreement costs will continue to accrue (notwithstanding the provision of an estimate) with the costs to be paid from the estate on an indemnity basis; (c) Clause 8.8 recorded the deed superseded any prior representations arrangements or understandings; and (d) Clause 8.7 recorded Mr Clow’s acknowledgement he had received independent legal advice before executing the deed and he entered into the agreement freely and voluntarily fully understanding its nature and effect.
In addition, the executor points to the complexity of the estate involving ancillary family law proceedings concerning a superannuation split between Ms Bailey and her former partner, the defence of the family provision proceedings and the defence of Mr Clow’s creditor claim against the estate. The executor notes in the course of resolving a final distribution statement, Mr Clow provided an email communication stating, “I will not pursue a request that the estate pass accounts provided that this payment is received in full no later than 8 August 2025”. The final payment was accordingly made on 1 August 2025.
The solicitor for the executor records that on 23 January 2026, correspondence was sent to the legal representative of Alec and Emily seeking their agreement to indemnify the executor in relation to Mr Clow’s application. The indemnity was sought on the basis of Clause 10.3 of the deed requiring Emily and Alec to indemnify the executor should a claim be made against the estate including a claim for passing of accounts. Emily responded by email dated 3 February 2026. She acknowledged the indemnities provided in the deed but did not make any positive statement of a willingness to indemnify the executor in relation to Mr Clow’s application. She observed, “ultimately our decision to enter into the deed of agreement was driven by our strong desire to resolve all issues in dispute, avoid further costs, and move forward from what has been a distressing period in our lives”.
Should an order for examination and passing of accounts be made?
Baker J in, In the Estate of Mildred Evelyn Griffin [2026] ACTSC 21, had cause recently to consider relevant authorities regarding the passing of accounts observing that, prior to her decision, there were none in the ACT considering the application of r 2646 and r 2647 of the Court Procedures Rules. With reference to the discretionary nature of the task her Honour observed at [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”. In further examining a line of relevant authority, her Honour quoted with approval the following passage from the decision of McMeekin J in Helg v Sergiacomi [2011] QSC 322 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.
The applicant has failed to establish that an order for the passing of accounts is appropriate in this case. The express terms of the deed of settlement entered into between the parties made clear that the resolution brought to an end all claims arising from the estate and expressly excluded any right to pursue the passing of accounts. Mr Clow had the benefit of legal advice throughout the process of negotiation leading to the compromise reflected in the terms of the deed. To the extent that he now has some reservation about the adequacy of the advice he received at the time there may be other avenues of recourse available to him. To require the passing of accounts by an executor who has completed his responsibilities and finalised the estate, with the documented consent of the beneficiary who now seeks the passing of accounts, and in circumstances where his previous consent included an express commitment not to do so, would be entirely inappropriate.
What would be required, with due regard to the terms of the deed, is some evidentiary basis for concluding the deed may be set aside. No such evidentiary basis is offered.
For the reason given above the appropriate order is the dismissal of Mr Clow’s application. The dismissal of his application has the effect of resolving the need for any determination of the executor’s application.
Orders
I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.
Associate: MG Malouf Date: 24 April 2026
1 It is noted that order 2 of this judgment was varied on 15 May 2026 with the addition of the words “on a solicitor and client basis”, save that each party was ordered to bear its own costs of the appearance on 15 May 2026.