Jordan v Goldspring

Procedural background

1. On 25 November 2019, Lindsay J ordered the Defendants to file and serve verified accounts in common form in respect of the administration of the Deceased's estate. On 11 February 2020, the Defendants purported to file accounts in common form. The Plaintiffs contend that those accounts were not in common form.
2. On 24 June 2020, Hallen J again ordered the Defendants to file and serve accounts in common form together with orders specifying the form for accounts to be in common form. On 21 August 2020, the Defendants filed unverified accounts in purported compliance with the orders of Hallen J. The Plaintiffs contend that the accounts filed on 21 August 2020 are incomplete and do not constitute accounts in common form, nor in accordance with the orders of Hallen J.
3. On 16 October 2020, the Plaintiffs filed (without opposition) an Amended Notice of Motion, charging the Defendants with contempt in failing to file, verify and serve accounts in common form in accordance with the orders of Lindsay J on 25 November 2019 and Hallen J on 24 June 2020. The Amended Notice of Motion has been set down for a four day hearing before Henry J commencing on 1 November 2021. It is in preparation for that hearing that the Plaintiffs seek the Court's leave to access both the documents already produced and to issue the further subpoenas and notices to produce.
4. At the hearing before me, the Court granted leave to file in court a Further Amended Notice of Motion. The Plaintiffs moved on prayers 6 and 7 of that document, which in its entirety claimed: "1. An order that pursuant to Part 55, Division 3, Rule 6 of the Supreme Court Rules 1970 (NSW) that the Executors be found guilty of contempt in failing to comply with the following orders to file and serve accounts in common form in relation to the estate of Frederick Martin Goldspring made by: a. Lindsay J, on 25 November 2019; and b. Hallen J, on 24 June 2020 2. An order that Peter Michael Goldspring, Mark Andrew Goldspring, Marianne Evelyn Goodchild be punished for contempt. 3. An order that the grant of probate dated 4 May 2016 appointing Peter Michael Goldspring, Mark Andrew Goldspring and Marianne Evelyn Goodchild as the Executors of the estate of Frederick Martin Goldspring be revoked. 4. An order that Richard Murphy solicitor of Newcastle be appointed as executor of the estate of the late Frederick Martin Goldspring. 5. An order that within 28 days of the making of Order 3 above, Peter Michael Goldspring, Mark Andrew Goldspring and Marianne Evelyn Goodchild, deliver to the replacement executor all originals and any copies of documents and records in their custody or control in relation to the estate and the administration of the estate of the late Frederick Martin Goldspring. 6. Pursuant to leave granted by Lindsay J on 25 November 2019, an order that Orders 1 and 2 made by Lindsay J on 28 October 2019 be vacated. 7. Leave be granted to the plaintiffs pursuant to orders made by Lindsay J on 20 October 2019 to file the following subpoenas or notices to produce: a. a subpoena to NSW Roads and Maritime Services; to obtain documents evidencing the current registered ownership of the following vintage trucks: i. 1946 Chevy truck. ii. 1965 Mack 615. iii. 1981 Mack Superliner. b. a subpoena to Goldsprings Equipment Hire Pty Ltd to obtain its financial statements and depreciation schedules for the financial years from 1 July 2010 to 30 June 2020 evidencing money spent on the restoration of the vintage trucks identified in Order 7(a) above; and c. a notice to produce to Barry Martin Goldspring to produce documents evidencing his ownership of a 1946 Chevy truck, together with all tax invoices, receipts and bank statements evidencing money spent on the restoration of that vehicle by himself in the period from 24 May 2008 to the present. 8. Such further or other order as this Court deems fit. 9. Costs."

The Subpoenas and subsequent events

1. Between 12 September 2019 and 22 October 2019, the Plaintiffs issued a number of subpoenas in response to which documents have been produced to the Court (the Subpoenas). The packet numbers and subpoenaed parties are: 1. Packet S-1: National Australia Bank Ltd; 2. Packet S-2: Australian Motor Homes Pty Ltd; 3. Packet S-3: Roads and Maritime Services; 4. Packet S-4: National Australia Bank Ltd; 5. Packet S-5: Macquarie Bank Ltd; 6. Packet S-6: Greater Bank Ltd.
2. On 25 October 2019, the Defendants filed a notice of motion, seeking to set aside each of the Subpoenas on the grounds that they were irrelevant to the proceedings and/or an abuse of process. No evidence was adduced to support those contentions.
3. On 28 October 2019, Lindsay J made the following orders: "1. Order that no further subpoenas for the production of documents be issued, and no notices for production of documents be issued, without the leave of a judge. 2. Order that there be no inspection of any documents in the custody of the court (produced on subpoena or notice to produce) without the leave of a judge."
4. On 25 November 2019, after ordering the Defendants to file accounts in common form, Lindsay J also made this order: "9. Reserved to the Plaintiffs and Fourth Defendant liberty to apply to the Court for orders regarding subpoenas and notices to produce after their receipt of the statement of accounts required by these orders to be filed and served by the first, second and third defendants."
5. The Subpoenas to which access is sought were issued by the Plaintiffs to ascertain what had taken place in relation to the following alleged assets of the Deceased: 1. The rental income received by the Deceased from his 50% interest in the property known as XXX High Street, Maitland (the Lowes Manhattan Building), which the Deceased and the First Plaintiff, Katherine, had purchased on 6 January 2008, and from which the Deceased received $387,192.53 between 6 February 2008 and 2 November 2014 (that sum being banked in Deceased's account with NAB Limited, Account No. XXX (Account No. 4314)); 2. A Winnebago motor home purchased by the Deceased from Australian Motor Homes Pty Ltd shortly before his death for approximately $170,000 (the Winnebago); and 3. A number of vintage trucks (the Vintage Trucks) restored by the Deceased, valued at approximately $310,000.
6. The total value of these assets is approximately $867,192.53.
7. On 6 December 2007, Nita and Katherine entered into a contract to purchase the Lowes Manhattan Building for $405,000. Nita died on 8 January 2008. On 6 February 2008, the Deceased and Katherine entered and executed the contract of sale to purchase the Lowes Manhattan Building for $405,000. From the time of purchase until the death of the Deceased on 2 November 2014, by agreement between the Deceased and Katherine, all of the rent received from the Lowes Manhattan Building was paid into Account No. 4314. The amount of the rent was $387,192.53. However, the inventory of property as admitted to Probate recorded the balance of Account No. 4314 as $291.31.
8. The First Defendant, Peter, has asserted that the $387,192.53 was not in the Deceased's account at the time of his death and that it did not form part of his estate. Despite repeated requests, the Defendants have not produced bank statements for Account No. 4314 for 6 February 2005 to 2 November 2014. The Defendants also have not led evidence of any enquiry or investigation into the $387,192.53 received by the Deceased into Account No. 4314 during that period.
9. The Plaintiffs contend that each of the Defendants, as the executors of the Deceased's estate, were and are under a duty to enquire, investigate, call in and collect the Deceased's estate, which included the $387,192.53: Dwyer v The National Trustees & Executors Agency Co Limited (1939-1940) 63 CLR 1 at [14] per Latham CJ.
10. By the Subpoenas issued to the NAB Ltd and the Greater Building Society, the Plaintiffs seek to ascertain what happened to the $387,192.53 received into Account No. 4314 during the period from 6 February 2008 to 2 November 2014. Despite repeated requests, the Defendants have refused to produce copies of the bank statements and have not disclosed what happened to those funds.
11. Shortly before his death on 2 November 2014, the Deceased purchased the Winnebago from Australian Motor Homes Pty Ltd for approximately $170,000. The Winnebago does not form part of the inventory of the Deceased as admitted to probate. The subpoenas to Australian Motor Homes Pty Ltd and Road and Maritime Services dated 12 September 2019 are each directed to establishing whether the Winnebago was an asset of the Deceased and of his estate and, if so, what has happened to the Winnebago.
12. Over many years before his death, the Deceased restored the Vintage Trucks, including: 1. 1946 Chevy truck; 2. 1981 Mack Superliner; and 3. 1965 Mack 615 truck.
13. The Deceased restored the Vintage Trucks with the assistance of the second plaintiff's husband, Robert Thomas. The Vintage Trucks have an assessed value of approximately $310,000.
14. On 1 March 2011, the Defendants' solicitor, Mr Foate, executed a Statutory Declaration. Attached was a handwritten note signed by the Deceased comprising a "list of his assets and who he desired to be gifted to upon his death". The list included the Vintage Trucks, a tractor and a Jayco caravan. None of those items appear in the inventory of the property of the Deceased's estate.
15. The Plaintiffs contend that the Vintage Trucks were the Deceased's property. The Defendants respond that the Deceased did not own the Vintage Trucks. The Defendants contend that they were owned by the fourth defendant, Barry, and a company known as Goldspring Equipment Hire Pty Ltd (the Company), a company of which the first and second defendants are the sole directors and shareholders. However, the Defendants have not disclosed whether the beneficial interest in the Vintage Trucks is held by the Company or the Fred Goldspring and Sons Family Trust, of which the Company is trustee.

The position of the fourth defendant

1. It is convenient first to deal with the Plaintiffs' application to issue this notice to produce to Barry: "c. a notice to produce to Barry Martin Goldspring to produce documents evidencing his ownership of a 1946 Chevy truck, together with all tax invoices, receipts and bank statements evidencing money spent on the restoration of that vehicle by himself in the period from 24 May 2008 to the present."
2. Mr Street submitted that, having regard to the way the Plaintiffs put the issue of the ownership of the 1946 Chevy Truck, the notice to produce was too wide and went beyond the question of ownership. Quite properly, Mr Drummond accepted that submission and did not press for more than a notice to produce referring to "documents evidencing his ownership of a 1946 Chevy truck". Mr Street indicated that he did not wish to be heard against a notice to produce in those terms. Accordingly, the Court made order 3 set out at [7] above.

The Plaintiffs' submissions

1. Mr Drummond submitted that the test in relation to the production of documents under a subpoena was that stated by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 at [25]: "Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings."
2. Turning to the issues in the proceedings, Mr Drummond submitted that not only did the Plaintiffs seek that each of the Defendants be found guilty of contempt, but also that the grant of probate to the Defendants be revoked and a solicitor be appointed as executor of the Deceased's estate. In support of the revocation claim, the Plaintiffs sought to rely upon the Defendants' failure to investigate or make any enquiries to bring into account the monies received by the Deceased in rent from the Lowes Manhattan Building, the Winnebago and the Vintage Trucks. This was a claim in devastavit and/or waste.
3. Although the substantive proceedings were originally limited to seeking an order that the Defendants file, verify and serve accounts in common form, it was submitted that those proceedings could be amended if evidence subsequently became available to include a claim for wilful neglect, wilful default, devastavit and/or waste.
4. In support of this proposition, Mr Drummond relied on the decision of Austin J in Glazier v Australian Men's Health (No 2) [2001] NSWSC 6. Those proceedings were an application for orders for the taking of accounts by some of the defendants. The only substantive issues were whether the accounts should be taken on the footing of wilful default and whether an amendment to that effect was required. His Honour said (emphasis added): "89. In Re Symons (1882) 21Ch D 757 the residuary beneficiary took proceedings against the executors and trustees of an estate alleging that the defendants, in breach of trust, had failed to get in parts of the estate and had accepted interest on outstanding purchase money at a lower rate than they were entitled to charge. As Kennedy J noted in Gava v Grljusich (at paragraph 30) Re Symons was a case where the plaintiff pleaded in effect, though not in form, both wilful default and breach of trust. In addition to claims for the 'ordinary accounts and inquiries' (at 757-8), the plaintiff claimed an order that the defendants make good to him the difference between the amount of interest actually received on the purchase money and the amount which should properly have been received. The plaintiff obtained judgment for administration upon admissions of fact contained in the statement of defence, and the court directed the ordinary accounts and inquiries to be taken and made. In terms of the distinction made above, the order was for the taking of accounts of administration, rather than for an account of profits for breach of trust, although the plaintiff had asserted various specific breaches of trust. No order was made on the footing of wilful default and the claims of breach of trust and breach of duty were not dismissed. 90. During the taking of accounts the plaintiff brought in a surcharge, seeking to charge the defendants with additional interest on the purchase money. The Chief Clerk decided that, the surcharge being in the nature of a charge of wilful default, the court's order did not permit him to proceed on that basis. When the matter came before Fry J for further consideration, two years after the initial order for accounts and inquiries, evidence of wilful default was adduced. The defendant argued that, as there had already been a judgment for the taking of accounts in common form and the accounts had been taken and a certificate had been issued, thereafter it was too late to add a direction for an account on the footing of wilful default. 91. Fry J disagreed, and directed accounts and inquiries on the footing of wilful default. He said (at 761) that 'if wilful default is charged in the pleadings, and evidence of it is adduced, accounts and inquiries on that footing may be directed at any stage of the proceedings'. He found that there was a charge of wilful default against the defendants in the statement of claim, because it alleged breaches of duty and breaches of trust in failing to get in the estate and to charge adequate interest on purchase money. Though the claim was not, in terms, for relief on the footing of wilful default, it was in his view a sufficient claim for relief on that footing (at 760). He noted the convenience of the Court being able to direct an account on the footing of wilful default after judgment, 'because in many cases the evidence of wilful default comes out naturally in the course of taking the accounts' (at 761)…. 94. In the present case, applying the reasoning of Fry J, I regard it as sufficient that the statement of claim alleges numerous specific breaches of trust, some of an inherently serious character, ranging over the whole administration of the trust by AMH and its directors, which would undoubtedly amount to wilful defaults if proved. This is true even though the statement of claim does not assert in respect of any of them that the breach amounts to 'wilful default'. The plaintiff's affidavits depose to numerous breaches of trust of the same character. It is not necessary for the prayers for relief to contain an explicit request for accounts on the footing of wilful default. In Re Symons there was no such request. 95. Fry J took the view that accounts on the basis of wilful default could be ordered at any stage in the pleadings, provided that wilful default was adequately charged in the pleadings and there was evidence of it. It would be just as unsatisfactory if the Court was precluded from responding to evidence of wilful default, vigorously contested, simply because the evidence has emerged from a process of receivership after the final hearing, as it would be if the Court were prevented from doing so because the evidence of wilful default arose during the taking of accounts after judgment. 96. Given these conclusions, it is strictly unnecessary for the plaintiff to seek to amend the statement of claim to seek an accounting on the basis of wilful default. However such an amendment may assist to clarify the position and so on balance, I am prepared to make the order sought by the plaintiff for leave to amend."
5. It was also submitted that Ward J (as the Chief Judge in Equity then was) had accepted in Hons v Hons [2010] NSWSC 247 at [108] that Austin J's decision set out the general principles which the Court should follow when making an order for an accounts.
6. Mr Drummond submitted that the evidence the Plaintiffs had adduced demonstrated that there were serious questions to be investigated about the sum of $387,192.53, the Winnebago and each of the Vintage Trucks. Access to the documents produced under the Subpoenas and what was sought by the further subpoenas and notices to produce was necessary for the Plaintiffs to be able to investigate and determine what had occurred and whether any of those items of property formed part of the assets of the Deceased's estate. This would put them in a position to determine whether claims of wilful neglect, wilful default, devastavit and/or waste could properly be made.

The Defendants' submissions

1. Mr Allen's basal submission was that the Plaintiffs had demonstrated nothing more than idle curiosity and that there was no legitimate forensic purpose in having that curiosity satisfied.
2. He submitted that what is to be heard by Henry J in November is the motion for contempt, with the statement of charge alleging various deficiencies in the form of the accounts submitted in response to the orders of Lindsay J and Hallen J. These did not extend to any allegations of wilful default, which was a matter that had to be expressly pleaded: Juul v Northey [2010] NSWCA 211 at [189]-[190] per McColl JA (with whom Basten and Campbell JJA agreed). There was no occasion for the Court to exercise its discretion to give access to the documents already produced and to issue the proposed further subpoenas and notices to produce until wilful default was a properly pleaded issue in the proceedings. Either the Plaintiffs had a case or they did not, but there was no basis for the subpoena process to be used to ascertain whether or not they had such a case.
3. Mr Allen further submitted that the hearing of the Plaintiffs' contempt motion was not an occasion for other matters to be considered. This was because it would be a quasi-criminal hearing where the case had to be proved beyond reasonable doubt, and the only matters to be determined were those in the statements of charge which related to the form of the accounts, not to the inclusion of assets in the accounts. The application to remove the Defendants had to be conditioned only upon the finding of contempt, because it would be unfair to the Defendants to confront matters involving two different standards of proof, which would occur if other grounds upon which the Defendants might be removed were considered.

The Plaintiffs' submissions in reply

1. In reply, Mr Drummond submitted: 1. While the contempt charge focused on the accounts purportedly in common form and their form and content, the potential issues which the Plaintiffs had raised could go to the form of the accounts. 2. While the orders for revocation of the grant of probate presently relied upon the same grounds as informed the contempt action, if the documents produced demonstrated that a case of wilful neglect, default, devastavit and/or waste could be brought, then those matters would be used in support of the application for revocation of the grant in any event. The proceedings before Henry J were not limited simply to contempt. The issue of revocation was a second, separate principal issue. 3. The Plaintiffs took no issue with the proposition that allegations of wilful default had to be pleaded. 4. The Plaintiffs had exhausted their efforts to obtain proper explanations from the Defendants as executors. As such, the Defendants had a duty to put any explanatory material before the Court and were not doing so: Vasiljev v Public Trustee [1974] 2 NSWLR 497 at [504] (Vasiljev).

Consideration

1. The Court granted the Plaintiffs' application for these reasons.
2. Had the proceedings been anywhere other than in probate, there may have been dispositive force in Mr Allen's submissions. However, I accepted Mr Drummond's submissions because the practice in relation to subpoenas and notices to produce in probate proceedings is different, because of what might be termed their investigative aspect. While set out in the context of a challenge to testamentary capacity, in Re Estates of Brooker-Pain and Soulos [2019] NSWSC 671 (Brooker-Pain) Lindsay J set out the practice in probate in general terms in what I respectfully describe as a guideline judgment (emphases added): "4. What both cases before the Court highlight is the central importance of (a) a consensus about the real issues in dispute in probate proceedings; (b) identification of a proper forensic purpose in seeking the production of documents; (c) avoidance of oppression in deployment of procedures for the compulsory production of documents; (d) recognition that engagement of the Court's procedures for the compulsory production of documents must be governed by considerations of reasonableness, in the application of case management principles, in the particular case; and (e) an understanding that, in management of a probate case, the Court may adapt its procedures to facilitate the determination of real issues in dispute by, for example: (i) permitting documents to be brought within the control of the Court at an early stage of proceedings, if need be deferring any inspection of them until parties have identified a reasonable foundation for access at the particular time; or (ii) directing that a solicitor or other person who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared or executed. 5. Disputation about the availability or scope of procedures for compulsory production of documents in probate proceedings is often a function of a lack of clarity about the issues to be determined in the principal proceedings. If there is a consensus about the real issues in dispute, the categories of documents required to be produced to the Court, in aid of a just determination of the proceedings, becomes substantially less contentious. 6. For this reason, it is important to appreciate: (a) the customary nature of pleadings on an application for a testamentary instrument to be admitted to probate. (Standard form probate pleadings are reminiscent of old style common law "issue pleadings" rather than "fact pleadings" traditionally characteristic of equity proceedings); (b) the standard grounds for challenging the validity of a will (no due execution, testamentary incapacity, absence of knowledge and approval, fraud, and coercion characterised as undue influence in probate practice); and (c) principles governing onus of proof, and presumptions, in probate proceedings. 7. If and when the parameters of a case are set, questions about the availability of procedures for the compulsory disclosure of documents (or other forms of "discovery", such as interrogatories) and the scope of "orders" for the production of documents (whatever may be the form of such orders) are governed by considerations of what is reasonably required for a just determination of the principal proceedings. 8. An allowance can be made for a need to conduct an investigation into whether a testamentary instrument is, or is not, the last will of a free and capable testator; but that too is governed by considerations of reasonableness: (a) in identification of a case for inquiry, including identification of a legitimate forensic purpose in pursuit of an investigation; and (b) in avoidance of oppression. 9. The merits of each case must ultimately be considered on the facts of the particular case, in the context of case management principles, having regard to the purpose for which probate jurisdiction exists."
3. It is clear that the orders made by Lindsay J set out in [17] and [18] above were made in accordance with the practice recognised in the emphasised passages from Brooker-Pain, awaiting whether the Plaintiffs could identify a "reasonable foundation for access" (see [43] above). I was satisfied that the Plaintiffs had demonstrated such a foundation and identified a case for enquiry, including identifying a legitimate forensic purpose in pursuit of an investigation. They had done so by uncontradicted evidence that the issues they had identified, to which the Subpoenas and proposed subpoenas and notices to produce related, were not matters of speculation, fishing or preliminary discovery, but went to issues that warranted investigation.
4. This was because there was evidence in support of the Plaintiffs' concerns and evidence that to the extent the Defendants had purported to answer the Plaintiffs' concerns, those answers were open to question by reason of evidence presently available to the Plaintiffs. The Defendants had not adduced any evidence in response to the present application and had not made any submissions as to the substance of the Plaintiffs' concerns.
5. I do not accept Mr Allen's submission that the Plaintiffs' claim for revocation of the grant of probate had to be confined to only where contempt was established. While ultimately a matter for the judge hearing the matter, in my respectful view there is no bar in principle to the Court hearing claims that might involve different standards of proof. Judges are well able to distinguish between the evidence in relation to particular causes of action and the standard of proof required. For example, the Court will often hear civil cases involving claims which may include allegations of fraud, so that even on the civil standard, different degrees of proof may be required for different causes of action having regard to whether or not what is still referred to as the Briginshaw standard is to be applied. Even accepting that the criminal standard of proof applies to the Plaintiffs' claim in contempt, a contempt action for breach of the Court's orders in civil proceedings is civil contempt and constitutes civil proceedings: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 275; [2015] HCA 21 at [40] (per French CJ, Kiefel, Bell, Gageler and Keane JJ).
6. It follows from the previous paragraph that it would be open to the Plaintiffs to rely on allegations of wilful default in support of their claim for revocation of the probate independently of whether contempt is established.
7. Next, the present case is only at one very close step removed from and anterior to the situation considered by Austin J in Glazier. In the present case the Plaintiffs have evidence that, in the absence of a proper explanation by the Defendants as executors, there is a real question to investigate as to whether or not wilful default has occurred. They wish to ascertain whether they can amend to plead wilful default. The decision in Glazier demonstrates that in considering the obligations owed by executors to beneficiaries, the Court will approach the matter beneficially to those such as the Plaintiffs, by permitting an allegation of wilful default to be brought at any stage of the proceedings provided there is a proper basis for it. In my respectful view, it accords with that principle for the Court to lend its aid to beneficiaries when they can demonstrate, as has occurred here, that there is a serious question as to whether or not such a claim can be brought.
8. The Court's conclusion is fortified by two further considerations.
9. First, while Mr Allen was correct to submit that the Court of Appeal's decision in Vasiljev concerned the obligation of executors in testators' family maintenance proceedings, it demonstrates that the Court has always been jealous to ensure that all proper issues concerning an estate are brought forward, including by imposing special responsibilities on executors in that regard. The evidence in the present application, not contradicted by the Defendants, is that the purported answers to the Plaintiffs' enquiries give rise to further questions.
10. Second, the Court must exercise its power in relation to subpoenas and notices to produce so as to give effect to the overriding purpose: s 56(2) of the CPA. The Plaintiffs have demonstrated that the issues now of concern to them are more than speculative and, contrary to Mr Allen's submissions, are far beyond "idle curiosity". The overriding purpose will be advanced by the Plaintiffs being given the opportunity to ascertain whether these issues can be properly raised at the hearing of the Further Amended Notice of Motion either in its present form or, if necessary, as amended in the light of what further evidence may emerge from the Subpoenas and the additional subpoenas and notice to produce.

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