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1. This is an urgent ex parte application for judicial advice pursuant to s 63 of the Trustee Act 1925 (ACT) (Trustee Act) arising in the context of the administration of the estate of the late Margaret Anne Cervo (the Deceased), who died on 30 August 2023. The Deceased’s husband had previously died in late 2022.

2. The originating application (filed on 6 August 2024 and amended with leave on 8 August 2024) sought advice in respect of three matters. This judgment only deals with the most urgent part of the application, being whether the administrator of the estate is justified in taking steps to compel production of a number of solicitor’s files and associated documents. Those documents are currently retained by a different solicitor in purported exercise of a solicitor’s lien for non-payment of fees.

3. The remaining two questions concern an insurance claim and variations to a building contract. While they also have a degree of urgency about them, upon hearing the application, it emerged that they may be resolved by the production of the documents that are the subject of the claimed lien.

The plaintiff

4. There is a dispute about the last will of the Deceased and there is separate litigation relating to the grant of probate being pursued in this jurisdiction. In the meantime, an independent solicitor, Ms Tamara Goodwin (the plaintiff), was appointed on 15 November 2023 as the administrator pendente lite (pending the litigation). This means that she has a limited grant of representation enabling the estate of the Deceased to be administered while the litigation is resolved.

Genesis of the application for judicial advice

5. The Deceased’s estate includes property assets and has limited liquid assets. One of the assets of the estate is a property in Belconnen (Belconnen property), the title to which is solely in the name of the Deceased.

6. In December 2021, there was an explosion and fire at the Belconnen property. Before the Deceased died, an insurance claim had been made in relation to the damage to the Belconnen property. The solicitor who acted for the Deceased in respect of that claim is Mr Ian Julien.

7. Mr Julien entered into negotiations with the insurer on behalf of the Deceased. Following those negotiations, the Deceased signed a document titled, “Partial Form of Release”, which was witnessed by Mr Julien. Following the execution of that document, the Deceased engaged a builder to complete works at the Belconnen property, with the insurer to pay for the works that were to be completed.

8. A building contract for the works at the Belconnen property was signed and executed by the parties, again with Mr Julien witnessing the Deceased’s signature.

9. There is now some uncertainty about what was agreed as between the Deceased and the insurer, and whether the scope of the agreement included that the insurer would pay for all works completed under variations to the building contract.

10. The insurer has declined to pay any further funds to the estate for the purpose of paying the builder until the plaintiff executes a final release in respect of the insurer’s liability for the claim.

11. As a result, the builder has ceased work at the Belconnen property and has threatened legal action, including taking proceedings and/or terminating their contract. In the meantime, the estate is also incurring substantial weekly delay fees, while the issue of whether the insurer is to pay for the works being carried out is resolved.

12. The plaintiff believes that Mr Julien’s file in respect of the insurance claim is required to enable her to form a view about what the agreement between the Deceased and the insurer was. She will then be in a position to determine whether to sign the deed of final release requested by the insurer.

13. More generally, in relation to the Deceased’s files concerning her personal and business affairs, the plaintiff believes they will permit the proper administration of the Deceased’s estate.

14. The plaintiff has sought such files and accompanying original documents or safe custody documents of the Deceased from Mr Julien and his firm, ILJ legal.

15. As at the date of the present application, Mr Julien had refused to produce the Deceased’s files. The reason for the refusal appears to be that he has claimed a lien over the files on the basis of outstanding legal costs, including costs incurred in relation to work he performed for the Deceased’s husband on other matters.

16. In the second affidavit affirmed in support of the application, the plaintiff deposes to having paid any outstanding fees in respect of the Deceased’s files. The relevant evidence is as follows: 4. On 6 June 2024, the amount of $26,718.30 was paid to Mr Julien for the payment of the invoices in relation to the Deceased. This was a discounted amount as agreed with Mr Julien. … On that day, a further amount of $3,600 was paid to Mr Julien’s solicitors, Elringtons Lawyers, for the costs incurred in negotiating the issue of his invoices. 5. All invoices relating to the Deceased have been paid.

17. The plaintiff further deposes to having given an undertaking to pay the solicitor’s invoices in respect of the files relating to the Deceased’s husband, from the proceeds of sale of another property that is yet to be sold.

The present application

18. These issues have caused the plaintiff to make the application for judicial advice pursuant to s 63 of the Trustee Act. Section 63(1) provides: A trustee may apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

19. Under s 4(1)(b) of the Trustee Act, a “trust” includes the duties of a legal representative of a dead person.

Question for which advice is sought

20. The question presently before the Court for determination is as follows: Whether the plaintiff is justified in taking steps against Mr Ian Julien, solicitor, to compel the production of the Deceased’s files and any original documents or safe custody documents of the Deceased held by him or his firm ILJ Legal.

21. The plaintiff also sought an order that the plaintiff’s costs of the proceeding be paid out of the Deceased’s estate on an indemnity basis. Evidence before the Court

22. The plaintiff relied upon two affidavits affirmed by the plaintiff on the application. Confidential correspondence was included in one of the affidavits put before the Court. I have read that material, subject to confidentiality orders, being a course adopted by Justice Kelly in Re LM Investment Management Ltd (in liq) [2022] QSC 132 at [20]-[21] in the Supreme Court of Queensland, for reasons explained therein. Where reference to the confidential communications is required in the reasons below, those parts are redacted to the extent necessary to protect the confidential material.

23. The evidence discloses that the plaintiff notified Mr Julien on 7 August 2024 of the plaintiff’s intention to seek judicial advice, although not that the application itself was served on Mr Julien. That does not pose a difficulty, because advice may be given without any affected parties being given notice of the application: s 63(4) of the Trustee Act.

24. Ordinarily in an application for judicial advice, it is appropriate that the application be accompanied by an opinion of counsel, directed to the substance of the question identified for the Court’s consideration, and “going beyond a mere statement about the availability of protection for a trustee from a court order”: Re Estate of Chow Cho-Poon [2013] NSWSC 844; 10 ASTLR 251 (Cho-Poon) at [108]. That case considered s 63 of the cognate legislation in New South Wales.

25. At [45]-[49], Lindsay J discussed the utility of providing an opinion of counsel (emphasis added): 45. The Court must be guided by what it perceives to be in the best interests of the trust estate: Re Application by Cottee [2013] NSWSC 47 at [35]. 46. In any case falling within the broad jurisdictional limits of s 63, a discretionary judgement must be made about whether the "summary" procedure for which the section provides is a suitable vehicle for the determination of questions stated by a trustee for consideration: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; 1 ASTLR 1 at [60]. These proceedings call for an exploration of this topic. 47. The proceedings also call for a consideration of the important role played by the legal profession in facilitating the due exercise by the Court of its jurisdiction to provide judicial advice to trustees. 48. The practice of the Court over many years (as a matter of practice, not compelled by legislative edict) has been to look for, and in an appropriate case rely upon, a memorandum of opinion of counsel, proffered by an applicant for s 63 relief, directed to the substance of questions arising for consideration on the application: see, for example, Re Gnitekram Marketing Pty Ltd [2010] NSWSC 1328 at [17]. 49. The absence of a well-considered memorandum of opinion may compel the Court to explore possibilities, of fact and law, that might not otherwise need exploration. A well-considered memorandum should anticipate lines of inquiry that a judge might be bound to identify and, one way or another, address them so as to focus attention on real problems in need of a solution.

26. What his Honour meant by the “summary” jurisdiction is that it permits a trustee to obtain the opinion, advice or direction of the Court without commencement of a suit for the general administration of a trust: Cho-Poon at [189], citing the Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 (Macedonian Church) at [61]-[63].

27. Later in Cho-Poon, Lindsay J went on to repeat at [109] what his Honour had said at [48] (extracted above), namely that the requirement is not mandatory. However, his Honour again emphasised the utility of obtaining an opinion, including at [117]: …an efficient administration of the "summary" jurisdiction exercised by the Court by reference to s 63 is aided by the availability of a considered opinion, by competent counsel upon whose judgement the Court is entitled to rely, whether or not (upon due consideration) it decides to agree with, or differ from, counsel's conclusions.

28. In the present case, due to the urgency of the present aspect of the application, no opinion was provided to the Court. This aspect of the application is discrete, and the advice required was relatively straightforward on the particular facts as presented to the Court. Accordingly, I was prepared to proceed without a formal opinion from competent counsel. However, the position may be different if the remainder of the application is pursued at a later date.

29. I have endeavoured to explain the practice above to assist those trustees who seek the judicial advice of the Court to understand what is ordinarily expected of them when they make such an application. Practitioners who seek the advice of the Court without following the practice referred to above may face delays in receiving the advice requested. That may be because the matter is adjourned to ensure that the relevant applicant obtains counsel’s advice on the issues, or because the Court is required to take the time to identify the issues and the legal principles involved in the matter without the assistance contemplated above. The discipline of obtaining counsel’s advice is also likely to assist trustees in working out what evidence should be put before the Court on the application.

The Court’s power to give advice

30. For the Court’s jurisdiction to be enlivened under s 63 of the Trustee Act, the applicant for judicial advice must point to the existence of a question with respect to the management or administration of trust property or a question regarding the interpretation of the trust instrument: Macedonian Church at [58].

31. The phrase ‘management or administration of property’ is not a term of art. It refers to both the manner in which the trust property is managed or administered and the actual carrying out of those functions: Application of Gnitekram Marketing Pty Limited [2010] NSWSC 1328 at [13].

32. Here, the nature of the advice sought by the question set out above concerns how the estate is to be managed and administered, in that it involves the carrying out of the function of administrator. Specifically, the question deals with whether to expend estate funds on attempting to recover legal files in order to resolve a separate dispute about the terms of an agreement which also ultimately affects the administration of estate funds in two ways. First, understanding the claim and the agreement made with the insurer will assist in the execution of the necessary paperwork that is required to release funds to meet contracted building costs. Second, without the completion of the necessary paperwork, the estate may suffer loss as a result of litigation being commenced against it for payment of invoices and interest charged by the builder. The jurisdictional hurdle is thus overcome.

Is it appropriate to give judicial advice?

33. The Court has a discretion under s 63 of the Trustee Act whether to give judicial advice. As observed in Cho-Poon at [43], the Court is not bound to give judicial advice merely because a trustee has a right to apply for it: Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 at [8]-[9].

34. In exercising the discretion, the Court should be guided by the scope and purpose of the section. The section’s primary purpose, and the advice given under it, is to protect the interests of the trust (in this case, the estate). The cardinal purpose in giving advice is to determine what should be done in the best interests of the trust estate: see In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 at [14] and the authority there-cited; Castle Hill Joinery and Interiors Pty Ltd (as trustee for the Gladstone Road Trust) [2013] NSWSC 1525 at [18] per Darke J.

35. A practical motivation may also be the protection of the trustee (here, the plaintiff) who acts upon the advice: Macedonian Church at [196] per Kiefel J (as her Honour then was).

36. An application for judicial advice is primarily for the purpose of enabling the trustee to be advised as to the nature or extent of their powers and duties of management or administration of the trust property: Re BTA Institutional Services Australia Ltd [2009] NSWSC 1294; 3 ASTLR 207 (Re BTA) at [6].

37. Given the estate is already the subject of litigation in respect of the will, as well as the threatened litigation in respect of the builder, and the escalating dispute with the insurer that may also result in litigation if not resolved in a timely manner, the interests of the estate will be best served by the Court exercising its discretion to provide an opinion on the question asked.

38. Further, the obtaining of judicial advice is a way of resolving any doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation, as those costs might carry a risk of being outside the indemnity: Macedonian Church at [70]-[71]. The advice may remove a concern of the plaintiff about exposure beyond the usual indemnity provided to trustees (to use the phraseology of Kiefel J in the Macedonian Church case at [196]).

39. Accordingly, I accept that it is appropriate for the Court to exercise its discretion to give the requested advice. Is the plaintiff justified in taking steps against Mr Ian Julien, solicitor, to compel the production of the Deceased’s files and documents held by him or his firm?

40. The question for resolution involves consideration of the solicitor’s communicated reasons for refusing to provide the Deceased’s files to the plaintiff. The evidence established that the solicitor was claiming a lien over the files. A solicitor may exercise a lien in two ways. The first may be described as a general lien, or a “retaining” or possessory lien. The second is a particular lien, or a “fruits of the action” lien. The circumstances of this case involve only the first category.

Principles applying to the existence of a retaining lien

41. Applicable principles have been set out by Rothman J in National Australia Bank Limited v Daniel George Charles Kiss [2006] NSWSC 1426 at [6]-[8] (emphasis added): General Lien 6. It is trite that an attorney has a general lien on all the documents of his client in his possession to meet his general costs: Re Suttor (1890) 11 LR(NSW) 401. I have been referred by the applicant to the judgment of Asprey J in Bolster v McCallum (1966) 85 WN (Part 1) 281 [at] 286. His Honour there said: “At common law a solicitor has a lien upon any documents which come into his possession in the course of his employment and in his capacity as a solicitor with the sanction of his clients and which are the property of his clients (see Halsbury’s Laws of England, 3rd ed, vol 36, par 238). The lien only extends to the solicitor’s taxable costs, charges and expenses incurred on the instructions of the clients against whom the lien is claimed and for which those clients are personally liable; and the lien is a general lien extending to all costs due to the solicitor and is not limited to the costs incurred in relation to the particular documents in question or upon the particular instructions in consequence of which the documents came into the possession of the solicitor ... A solicitor having a retaining lien over the documents in his possession is entitled to retain the documents against the clients until the full amount of the solicitor’s taxed costs payable by the clients is paid; and the clients have no right to inspect the documents or to take copies of them.” 7. Further it has been held that the failure to render a bill or the unreasonableness of the bill (or the absence of taxation, assessment or agreement as to the amount) does not stand in the way of a general lien of the kind here claimed: Re Jalmoon Pty Ltd (1986) 2 QdR 264. 8. Notwithstanding the existence of the lien, a court is entitled to order the production to the Court, and access to the documents, if the production of the documents is necessary in the interests of the administration of justice in a particular case. That will certainly be the case if the interests of third parties are prejudiced: in Re Marriage of Conroy (1990) 103 FLR 233, per Elliot J, Family Court of Australia. When does a retaining lien cease, or when may it be lost?

42. Perhaps the most obvious principle is that a retaining or possessory lien ceases when the solicitor’s costs are paid or satisfactory arrangements are made to secure the solicitor’s costs entitlement. In Bechara v Atie [2005] NSWCA 268 (Bechara) at [47]-[50], McColl JA (with whom Ipp and Tobias JJA agreed) referred to a number of English and Australian authorities in the course of stating that the right to retain documents existed for the protection of the solicitor’s claim for costs and disbursements and for no other purpose, operating only until the solicitor is satisfied or it is shown that the claim is unfounded. Once the client satisfies the solicitor’s legitimate demands for which the lien is claimed, the lien expires, and the client is entitled to an order for the delivery up of the items: Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 18-19; Bolger v Bolger (1985) 82 FLR 46 at 49.

43. However, a lien may also cease or be lost in a variety of other circumstances. The following circumstances are those bearing upon the facts under consideration here, noting that what follows is not an exhaustive list of when a retaining lien ceases or is lost.

44. A solicitor who overreaches on the scope of the lien may cause the lien to be extinguished. It is therefore important to understand the limits of a general retaining lien. A detailed discussion of what items fall within the lien may be found in G E Dal Pont, th Lawyers’ Professional Responsibility (Thomson Reuters, 7 ed, 2021) at 542-546. Of significance here, the lien does not extend to costs incurred at a stage where the solicitor acts as an adverse party to a client: In re Long [1929] VLR 318 (Long) at 321 per Lowe J. The rationale is that the lien does not extend to costs a solicitor has incurred for her or his own benefit and not on the client’s instructions: see White v Bini [2003] FCA 669 (White) at [8]-[9] and the cases there-cited, which include Long.

45. In White at [10], Finkelstein J said (emphasis added): … It is trite law that a lien will be lost if it is claimed for the wrong cause or the wrong amount: Automobile & General Finance Co. Ltd v Cowley-Cooper (1948) 49 SR (NSW) 31, 37. A lien will also be lost if a person claims it for two debts (one due and one not due) and intimates that he will not part with possession unless both debts are satisfied: Jones v Tarleton (1842) 152 ER 285; Kerford v Mondel (1859) 28 LJ (Ex) 303. In Albemarle Supply Company, Limited v Hind and Company [1928] 1 KB 307, 318- 319, Scrutton LJ said: "A person claiming a lien must either claim it for a definite amount, or give the owner particulars from which he himself can calculate the amount for which the lien is due. The owner must then in the absence of express agreement tender an amount covering the lien really existing. If he does not, unless excused, he has no answer to a claim of lien. He may be excused from tendering (1.) if he has no knowledge or means of knowledge of the right amount; (2.) if the person claiming the lien for a wrong cause or amount makes it clear that he will not release the goods unless his full claim is satisfied, and that amount is wrongful. The fact that the claim is made for more that the right amount does not matter unless the claimant gives no particulars from which the right amount can be calculated, or makes it clear that he insists on the full amount of the right claimed." …

46. The circumstance arising in White was that the solicitor insisted that he would only release the client’s file if both his conveyancing costs and the costs incurred by him following the order substituting the trustees were paid. Finkelstein J found (at [10]) that the solicitor’s refusal to release the file by claiming a lien for a wrong cause (the costs incurred following the removal of the trustee) was sufficient to extinguish his lien.

47. A lien may also cease in the following circumstances: (a) Where satisfactory security is given for the solicitor’s costs. Satisfaction may take a number of forms, including payment of money into court or giving other adequate security. An example is R v Storer (1993) 111 FLR 243, where Gallop J ordered delivery of the file to the new solicitors subject to payment into court of a certain sum and conditions preserving the former solicitor’s lien. However, an undertaking by the incoming solicitor to pay the former solicitor’s costs does not constitute security for the former solicitor’s costs: Bechara at [58]. (b) Where the solicitor parts with possession of the documents without making any reservation as to the lien: Bechara at [48]. (c) Where a subpoena is issued in respect of the solicitor’s file: Bolster v McCallum [1966] 2 NSWR 660. See also r 15 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Solicitors Rules), which creates a regime for the production of essential documents, but it only applies to current proceedings. (d) Where a court order requires production, where the interests of justice require it, and on conditions designed to protect the solicitor as far as possible: Bechara at [69].

48. As Miles CJ has stated in this jurisdiction in Re Dunstan (No 2) [2000] ACTSC 33; 155 FLR 189 at [10]: Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients’ document until they get paid. …

49. A solicitor who improperly maintains a lien over a client’s property may also be subject to disciplinary action. Rule 14 of the Solicitors Rules deals with the obligations on solicitors, including relevantly to the present circumstances, to give “any client documents… as soon as reasonably possible when requested to do so by the client, unless there is an effective lien”. The circumstances of the present case

50. There is a real question in this case as to whether any lien has either ceased, by full payment being made, or has otherwise been lost.

51. The salient facts have already been set out above. The position is that: (a) There is a legal dispute with an insurer, which obtaining the previous solicitor’s file and associated documents may resolve. (b) Until that dispute is resolved, the estate will not be put into funds to meet debts arising under a building contract. That may result in the estate defending litigation against the builder or the insurer or both. However, any proceedings that may be brought by either the insurer or the builder are only in contemplation. (c) On the evidence before the court, the previous solicitor, Mr Julien, has been fully paid in respect of the Deceased’s files. (d) Mr Julien refuses to provide the Deceased’s files because money is owed in respect of files pertaining solely to the Deceased’s husband.

52. Three additional matters derive from the confidential material, being correspondence dated 26 July 2024 which included the following statements (redacted below in the published reasons to preserve the confidence of without prejudice communications): (a) [Redacted]. (b) [Redacted]. (c) The letter further stated: [Redacted].

53. On the authorities above and the current state of the evidence, it is likely that the lien expired upon payment of the solicitor’s agreed costs in respect of the Deceased’s files on 6 June 2024. As the plaintiff submitted, the Deceased is not entitled to claim a lien over the files of the Deceased, because in respect of those files, he has been paid what was agreed. The Deceased’s assets (her estate) cannot be used to pay the debts of another, even if that person is a family member.

54. However, even if the lien had not expired, the right to claim the lien may have been lost or alternatively, the plaintiff may be excused from payment. One reason why it might be argued that the lien had not expired is if the Court found that the waiver or agreement to be paid a particular amount was conditional, and the condition being unfulfilled, there was no agreement to accept a reduced amount of the invoices in respect of the Deceased’s files.

55. Even on that alternative scenario, that is unlikely to change the outcome, because on the authorities set out above, it is likely that the lien was then extinguished by the subsequent conduct of the solicitor. That is because the amounts claimed by Mr Julien for the moneys owing by the Deceased’s husband’s estate (moneys for which the Deceased was not personally liable) and [redacted] were each not properly claimable as part of the lien. The solicitor either claimed the lien for a wrong cause or claimed the wrong amount.

56. The solicitor then indicated [redacted]. Because it includes amounts that are beyond the scope of any lien, the amount claimed by the solicitor is wrongful. Accordingly, to the extent that the lien remained following 6 June 2024, it is likely that the lien was extinguished.

57. For completeness, there was evidence about arrangements that had been made as between the plaintiff and Mr Julien by way of solicitor’s undertakings to pay the total outstanding fees of both estates once a property in the estate of the Deceased’s husband had been sold. In the absence of evidence to suggest that the Deceased was personally liable for work done in respect of her husband’s affairs, that evidence is not relevant to whether Mr Julien or ILJ Legal has any equitable entitlement to retain the files of the Deceased. It is therefore unnecessary to consider whether satisfactory security was given (in light of the authorities above regarding a solicitor’s undertaking to pay).

58. Because there are no legal proceedings currently on foot, it is also unnecessary to deal with whether the Court might separately make an order for production in the interests of justice, were the plaintiff to make such an application.

Conclusion

59. For the above reasons, the plaintiff is justified in taking steps to compel production. That is because there is a reasonable likelihood that either the lien expired from 6 June 2024 when he was paid what he agreed, or the lien was later extinguished by the solicitor’s conduct in seeking amounts that were not within the scope of the lien before releasing the Deceased’s files.

60. Finally, it should be made clear that if the matter proceeds to litigation between Mr Julien or ILJ Legal and the plaintiff, the above advice does not bind a future court called upon to decide the issue. The threshold for considering whether the plaintiff is justified in taking the steps proposed is different from a concluded finding that the lien which was claimed had expired. Moreover, the cause of action, joinder of issues and evidence may all be different from that identified and put before the Court in this application.

Costs

61. Subject to any express terms of a trust, a trustee is entitled to be indemnified against debts and liabilities incurred in the proper execution of its duties and powers under the trust out of the assets of the trust. This established principle was restated in Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; 354 ALR 436 at [35] per Allsop CJ, with whom Siopis and Farrell JJ agreed.

62. Under s 59(4) of the Trustee Act: A trustee may reimburse himself or herself, or pay or discharge out of the trust property, all expenses incurred in or about the execution of his or her trusts or powers.

63. It follows that if the taking of steps to compel production is proper (justifiable), then the plaintiff is entitled to expend estate funds to pay for the legal costs of any reasonable steps taken, including if necessary, conducting litigation. Because of the operation of the above section, it may well be unnecessary to make an order to that effect, as it is already provided for by statute. However, as the plaintiff sought the order, I will make it out of an abundance of caution.

Orders

64. The Court makes the following orders: (1) The questions for judicial advice should be answered as follows: (a) Until further order, the Administrator pendente lite of the Estate of the late Margaret Anne Cervo (Deceased) is justified in taking steps against Mr Ian Julien, solicitor, to compel the production of the Deceased’s files and any original documents or safe custody documents of the Deceased held by him or his firm ILJ Legal, including commencing proceedings in relation to any solicitor’s retaining lien claimed. (b) Until further order, it is proper for any costs and disbursements incurred in carrying out the said steps, or commencing the proceedings referred to in order 1 above, to be paid out of the Estate of the late Margaret Anne Cervo, on an indemnity basis. (2) Confidential exhibits TJG-CON-20 and TJG-CON-35 are to be sealed in envelopes marked “Not to be opened without further order of a judge”.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: **************

Amendments 29 October 2024 Delete ‘[2003]’ and insert ‘[2013]’ Paragraph [25]