Lee v Yap [2026] VSCA 20

1. On 23 April 2014, Huat commenced a proceeding in the Family Court of Australia seeking orders against Flora and the Trustee. He sought orders dividing assets between himself and Flora, restoring himself as director and shareholder of the Trustee and restraining Flora and the other directors from amending the share register or appointing company officers.[12]
2. At that time, Huat was in Malaysia. Huat appointed Hock as his attorney under a general power of attorney, which authorised Hock to conduct litigation on Huat's behalf seeking relief against the Trustee and its directors pursuant to s 79 of the Family Law Act 1975 (Cth).[13] Hock lives in Melbourne.
3. Huat sought and was granted leave to discontinue the Family Court proceeding in October 2015. Flora sought indemnity costs on the grounds that Huat had perjured himself. He was found on the balance of probabilities to have deliberately attempted to mislead the Court in relation to his entry into Australia. The Family Court made an order for indemnity costs against him.[14]

1. Hock commenced the primary proceeding in March 2016. Initially, the primary relief sought was the appointment of a new trustee and declaration that Flora held the Glen Iris property on constructive trust for the Trustee. Huat and Ms Kam were not originally party to the proceeding.[15]
2. On 22 September 2017, Flora made an affidavit of discovery in which she discovered deeds executed by Huat on 15 June 1987 and Ming on 26 June 1987 (the 'June 1987 deeds').
3. On 1 July 2019, Hock filed a third further amended statement of claim in which he alleged that the Trust had failed for uncertainty and sought the appointment of a receiver to the trust assets. On 8 July 2019, Hock made an application by summons for a receiver and manager to be appointed to the Trust.[16]
4. On 19 July 2019, following orders made by Lyons J on 2 July 2019, Flora made an affidavit ('Flora's 19 July Affidavit'). This affidavit was served on Hock in opposition to his application to appoint a receiver to the Trust. Exhibited to Flora's 19 July Affidavit was:

(a) a letter of advice from Mr Geoffrey Taylor to Flora dated 5 October 1988 (the 'Taylor advice'); and

(b) the June 1987 deeds (which, as noted above, had previously been discovered in the proceeding).

1. Justice McDonald heard Hock's application to appoint a receiver to the Trust on 5 August 2019. His Honour declined to appoint a receiver. Instead he set the primary proceeding down for a trial on 14 October 2019 and made various timetabling orders.
2. At the hearing on 5 August 2019, McDonald J stated that he had 'digested most of the affidavit material that has been filed'. In addition, counsel for Flora and Vincent, Mr Hanak, appeared to refer to Flora's 19 July Affidavit when he told the judge that 'we will do what we can ... to find a copy of the deed, obtain secondary evidence ... or do the things that are outlined in the affidavit'. That appears to have been a reference to Flora's 19 July Affidavit, which set out in some detail Flora's attempts to locate the Trust deed. Later, Mr Hanak again referred to an affidavit containing information about the Trust assets, which again appears to have been a reference to Flora's 19 July Affidavit.
3. On 26 August 2019, Flora filed and served an amended defence to the third further amended statement of claim and counterclaim, in which she denied that the Trust had failed for uncertainty. In the alternative she asserted that she had made contributions to the Trust and claimed an interest in the assets of the Trust in the event that it was found to have failed. She also alleged that, in 1987, Flora and Huat agreed that they would divorce and that Flora would be the beneficial owner of all assets held in Australia by Huat and the Trustee, including assets of the Trust (the 'alleged Property Agreement').[17]
4. On 23 September 2019, Pitcher Partners, engaged by Flora and Vincent, produced a report that was served on the other parties following consent orders by McDonald J on 5 August 2019.[18]
5. On 10 September 2019, Hock made a request for further and better particulars of the Flora's defence and counterclaim. On 25 September 2019, Flora produced documents in response to that request (the 'September Documents').[19]

1. Sometime after 26 August 2019, Hock told Huat and Kam that Flora, Vincent and William were claiming ownership of assets of the Trust and suggested that Huat and Kam should contact Luke Tran of Luat Lawyers.[20]
2. On 4 September 2019, Mr Tran spoke to Huat and Kam using WhatsApp and took instructions from them. Tran had a further WhatsApp conference with Huat and Kam on 5 September 2019.[21]
3. On 2 October 2019, Huat and Kam filed an application seeking to be joined to the primary proceeding. Mr Tran swore an affidavit in support of that application which exhibited the following documents:

(a) a proposed statement of claim;

(b) consent in writing of Huat to be joined as a plaintiff to the proceeding; and

(c) consent in writing of Kam to be joined as a plaintiff to the proceeding.[22]

1. On 3 October 2019, Luat Lawyers filed a summons on behalf of Huat and Kam seeking to be joined as plaintiffs to the primary proceeding.[23] On 4 October 2019 Huat and Kam filed an outline of submissions in relation to that application. The submissions were authored by Mr Martindale and Ms Willshire.

Further steps in the primary proceeding and the Family Court proceeding

1. On 10 October 2019, the primary proceeding came before McDonald J for a mention. At that time, Hock was represented by Mr Ehrlich QC and Mr Cozens; Flora, Vincent and William were represented by Dr Hanak QC and Mr Diaz; and Huat and Kam (who were then non-parties) were represented by Mr Martindale KC and Ms Wilshire. Counsel for Hock and for Flora, Vincent and William informed the Court that:

(a) the trust deed for the Trust was lost; and

(b) there was insufficient secondary evidence establishing the contents of the trust deed.[24]

1. In light of that information, McDonald J declared that the Trust had failed for uncertainty. His Honour also declared that the Trustee held all of its property, rights, assets and income on a resulting trust for those who had contributed property to it.[25]
2. On 22 October 2019, Huat and Kam filed a further outline of submissions in relation to their joinder application. The outline was authored by Mr Martindale KC and Ms Willshire.
3. On 22 October 2019, Thomas Victoria Lawyers, the then solicitors for Flora, Vincent and William, informed Luat Lawyers that Flora, Vincent and William would not oppose the joinder application and that they would seek to have the primary proceeding cross-vested to the Family Court.[26]
4. Also on 22 October 2019, Flora filed an application in the Family Court proceeding seeking leave pursuant to s 44(3) of the Family Law Act to commence an application for orders under s 79 of that Act that would give her sole ownership in the assets of the Trust, to the exclusion of Huat.[27]
5. On 25 October 2019, McDonald J made orders joining Huat and Kam to the primary proceeding. The joinder orders were not opposed by Flora and Vincent. Again Hock was represented by Mr Ehrlich QC and Mr Cozens; Flora and Vincent were represented by Dr Hanak and Mr Diaz; and Huat and Kam were represented by Mr Martindale KC and Ms Wilshire.[28]
6. On 8 November 2019, Tran emailed an overarching obligations certificate[29] to Kam and requested she and Huat sign and return it. On the same date, Luat Lawyers filed:

(a) a statement of claim on behalf of Huat and Kam; and

(b) an overarching obligations certificate signed by Huat.[30]

1. On 15 November 2019, Thomas Victoria Lawyers wrote to Luat Lawyers raising concerns about Huat's capacity. Luat Lawyers sent Kam a letter asking for a report on Huat's capacity. Kam commissioned a report from Dr Salleh, a psychiatrist in Malaysia, who interviewed Huat on 26 November 2019 and 3 December 2019.[31]
2. On 2 December 2019, Flora, Vincent and William filed a further defence and counterclaim. In their defence they pleaded the alleged Property Agreement and its terms.[32]
3. On 6 December 2019, Dr Salleh provided an unsigned draft report to Kam dated 4 December 2019. In this report Dr Salleh expressed the opinion that Huat had 'Moderate to Severe Dementia'. Based on his assessment, Dr Salleh opined that Huat 'cannot understand the context' of the legal proceedings then on foot and he was 'unlikely to understand the consequences of the decisions he makes'.
4. On 20 December 2019, Luat Lawyers filed an amended statement of claim on behalf of Huat and Kam.[33]
5. On 15 January 2020, Luat Lawyers filed a reply and defence to counterclaim in which Huat and Kam denied the alleged Property Agreement and its terms.
6. In around February 2020, Willocks Lawyers began acting for Huat in the Family Court proceeding.[34]
7. On 25 March 2020, Hock sent Luat Lawyers a copy of Dr Salleh's draft report and Luat Lawyers forwarded the draft report to Willocks Lawyers; Willocks Lawyers then forwarded the draft report to Thomas Victoria Lawyers. Also on 25 March 2020, Willocks Lawyers sent Huat and Kam a letter seeking a further assessment of Huat's mental capacity.[35]
8. On 26 March 2020, Willocks Lawyers filed an application in the Family Court proceeding seeking the appointment of Hock as case guardian for Huat ('Hock's guardian application').[36]
9. On 3 April 2020, Dr Salleh emailed a signed version of his report dated 4 December 2019 to Luat Lawyers.
10. On 14 May 2020, after a further assessment, Dr Salleh produced an updated and signed report on Huat's mental capacity. Dr Salleh reiterated his diagnosis of moderate to severe dementia and stated that Huat's cognitive ability appeared to have declined since his last examination. Dr Salleh concluded that it was unlikely Huat 'would be able to understand issues or the possible consequences related to complex legal proceedings ... or give adequate instructions in that respect'.
11. On 15 May 2020, Dr Salleh swore an affidavit which Willocks Lawyers filed in Hock's guardian application.
12. On 17 June 2020, Flora filed a response opposing Hock's guardian application. She also sought an order restraining Willocks Lawyers from acting in the Family Court proceeding. In July and August 2020, in the context of the guardian application, Flora raised the issue of whether at any time Huat had had the capacity to engage lawyers.[37]
13. After Flora opposed Hock's guardian application, Hock withdrew the application and Kam applied to be appointed as case guardian. On 3 September 2020, the Family Court ordered, by consent, that Kam be appointed as case guardian for Huat and that Flora's response to Hock's guardian application be dismissed.
14. On 18 September 2020, Flora filed an amended initiating application in the Family Court seeking an anti-suit injunction to prevent Huat from taking any further step in the primary proceeding. On 15 October 2020, Huat filed a response to the anti-suit injunction application, seeking a stay of the Family Court proceeding until the hearing and determination of the primary proceeding.[38]
15. On 22 December 2020, the Family Court made orders:

(a) granting Flora leave to bring her application for relief under s 79 of the Family Law Act;

(b) dismissing Flora's application for an anti-suit injunction; and

(c) staying the Family Court proceeding until the determination of the primary proceeding.[39]

1. On 3 May 2021, Welner Lawyers began acting for Flora and Vincent in the primary proceeding and they retained Mr Williams KC and Mr Elias of counsel, in place of Dr Hanak and Mr Diaz.[40]
2. On 20 August 2021, at a directions hearing in the primary proceeding:

(a) Hock, Huat and Kam applied for Kam to be appointed as Huat's litigation guardian in the primary proceeding;

(b) counsel for Flora, Vincent and William stated that they did not oppose Kam's appointment as litigation guardian and expressed their longstanding concerns about Huat's capacity; and

(c) Justice Lyons made orders appointing Kam as Huat's litigation guardian and giving the plaintiffs (Hock, Huat and Kam) leave to file an amended statement of claim.[41]

1. On 19 September 2023, Flora and Vincent ceased to be represented by lawyers in the primary proceeding.[42]
2. On 23 October 2023, Flora filed an affidavit in the primary proceeding annexing various documents. She also filed written submissions alleging misrepresentation by Hock in concealing Huat's mental capacity after August 2015.[43] This included the allegation that McDonald J had made the order joining Huat on 25 October 2019 'without fully being informed':

The judge was misled to believe Chin Huat to be in his full mental capacity and that he had the right to make the counterclaims as purported in counsel Luat's statement of claims. Only the first and fourth plaintiffs knew of his dementia but decided to conceal it from the Court at that time.

1. On 5 February 2024, Willocks Lawyers filed a fifth further amended statement of claim on behalf of Hock, Huat and Kam in the primary proceeding.[44]
2. On 5 March 2024, Waller J made orders referring Flora, Vincent and William to the Victorian Bar pro bono assistance scheme. Following that referral, William was represented by pro bono counsel who assisted him to draft his defence to the fifth amended statement of claim. Flora and Vincent were represented by separate pro bono counsel (their current counsel) and solicitors, who assisted them to draft their defence to the fifth amended statement of claim.[45]
3. The first and second summonses were heard by Waller J on 21 August 2024, with Mr Martindale KC and Ms Willshire appearing for Hock and Kam and Ms De Ferrari appearing for Flora and Vincent. Those two summonses were adjourned part heard. All four summonses were heard by Waller J on 10 September 2024, with Mr Martindale appearing without junior counsel for Hock, Huat and Kam, and Ms De Ferrari SC again appearing for Flora and Vincent. William appeared on his own behalf at both hearings.

1. Flora and Vincent contended that the correctness standard of appellate review applies in relation to each of the orders that they challenge. That contention is incorrect. If a decision is discretionary it will attract the 'deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King',[46] rather than the correctness standard. That is, if the judge acted upon a wrong principle, allowed irrelevant matters to affect the decision, failed to take into account a relevant consideration or made a mistake of fact, then the decision will be reviewed and the appellate court may exercise its own discretion in substitution if it has the materials upon which to do so. In addition, even if no specific error of that kind appears but the decision is 'unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion'.[47] As we explain later in these reasons, the correctness standard applies in relation to some of the orders they seek to challenge, but not to all of them. That is because some of the decisions were discretionary in nature.
2. Flora and Vincent also submitted that, on an appeal, the fact that the orders in question were interlocutory does not affect the standard of appellate review. So much may be accepted, following the decision of the High Court in Moore (a pseudonym) v The King, where the Court held that, once leave to appeal is granted, the Court 'is required to apply the standard of review dictated by the nature of the decision the subject of the appeal'.[48]
3. However, Flora and Vincent require leave to appeal. Under s 14C of the Supreme Court Act 1986, this Court may grant an application for leave to appeal 'only if' it is satisfied that the proposed appeal 'has a real prospect of success'. Given Moore, the Court must approach the question of whether a proposed appeal has a real prospect of success by reference to the appropriate standard of appellate review. However, the section confers a discretionary power in relation to the grant of leave. The specified state of satisfaction is the prerequisite to an exercise of the power to grant the leave sought. But even where that prerequisite is met the Court may refuse leave to appeal in the exercise of its discretion.[49]
4. Thus, as the High Court observed in Moore, in determining whether to grant leave to appeal there will be various factors that may weigh in the determination of whether the Court is satisfied that the interests of justice warrant a grant of leave to appeal. The Court did not specify what those factors are. We consider that the interlocutory nature of the decision is a relevant consideration in deciding whether leave to appeal should be granted. That is consistent with a long line of authority in this Court.[50]
5. The considerations to which the Court may have regard in exercising the discretion will vary depending on the case at hand and on the proposed grounds of appeal. Relevantly for present purposes, the fact that a particular decision is interlocutory in nature will tend against a grant of leave to appeal.[51] Considerations favouring the grant of leave may include the possibility that an uncorrected error may perpetuate an error of principle, adversely affect the administration of justice, or result in a relevant injustice.[52]

Ground 2: Alleged breaches of the Hearne obligation

1. It is convenient to consider ground 2 before considering the other grounds, because some of the issues raised by ground 2 are also part of Flora's and Vincent's submissions on their other grounds.
2. Ground 2 is directed to two of the judge's orders:

(a) first, it is directed to the order the judge made dismissing the third summons (that is, Flora's summons to have the fifth amended statement of claim struck out); and

(b) secondly, it is directed to the judge's order granting leave to the lawyers for Huat and Kam to use the disputed documents for the purpose of the proceeding, including the joinder application.

It is thus convenient to describe these as ground 2(a) and ground 2(b).[53]

1. As the judge explained, the documents that Flora alleged were used in contravention of the Hearne obligation were as follows:

(a) Flora's 19 July Affidavit, which was served by her on Hock in order to resist Hock's application for a receiver to be appointed to the Trust;

(b) a letter of advice from Mr Geoffrey Taylor to Flora dated 5 October 1988, which was exhibited to Flora's 19 July Affidavit;

(c) an expert report produced by Pitcher Partners dated 23 September 2019, served by the defendants on Hock;

(d) the June 1987 deeds (executed by Huat on 15 June 1987 and Ming on 26 June 1987), which were discovered by Flora in the primary proceeding and later exhibited to Flora's 19 July Affidavit; and

(e) documents provided by Flora to Hock on 25 September 2019, following a request for further and better particulars dated 10 September 2019 (the 'September documents'),[54]

1. Flora contended that the application in October 2019 to join Huat and Kam to the primary proceeding[55] had been made in reliance on the disputed documents, in breach of the Hearne obligation.[56] Hock, Huat and Kam denied breaching the Hearne obligation, but also sought a grant of retrospective leave to use the disputed documents, in the event they had breached the obligation.[57]

The judge's reasons in relation to the Hearne obligation

1. After canvassing the authorities in relation to the Hearne obligation, the judge concluded as follows.

(a) The Hearne obligation applies only to documents produced under compulsion, and not to every affidavit filed in a proceeding in accordance with ordinary timetabling orders.[58]

(b) Flora's 19 July Affidavit was produced following timetabling orders and neither it nor its exhibits were produced under compulsion in the relevant sense. They were thus not subject to the Hearne obligation.[59]

(c) The Pitcher Partners' expert report was produced following timetabling orders, not under compulsion in the relevant sense.[60]

(d) The June 1987 deeds were produced pursuant to an order for discovery and were at that time subject to the Hearne obligation. However, they were later included as exhibits to Flora's 19 July Affidavit, which placed the deeds outside the Hearne obligation.[61] Mr Taylor's letter of advice fell outside the Hearne obligation for the same reason.[62]

(e) The September documents were produced under compulsion (which was conceded by Mr Martindale KC, appearing for Hock) and were subject to the Hearne obligation. However, the judge was not satisfied that the September documents were used for the purposes of the joinder application. There was thus no breach of the Hearne obligation in relation to those documents.[63]

(f) Even if the September documents were used for the joinder application, such use was not a use for a collateral or ulterior purpose. Rather, it would have been a use in respect of the very proceeding in which they were produced. That use would thus not be a breach of the Hearne obligation or of s 27 of the Civil Procedure Act 2010.[64]

1. The judge also considered the question of waiver or consent to use of documents subject to the Hearne obligation, although this issue was not strictly necessary for him to determine. His Honour said that he was not prepared to conclude that an implied consent or waiver (rather than an express consent or waiver) could overcome the Hearne obligation.[65]
2. Finally, his Honour considered whether, if he was wrong in his conclusions in relation to the Hearne obligation, he ought to exercise his discretion to grant leave to the lawyers for Huat and Kam to use all the disputed documents for the purposes of the proceeding, including the joinder.[66] The judge granted leave to use the disputed documents after considering the following matters:

(a) Flora's delay in raising the issue, of which she had been aware since the filing of Huat's and Kam's draft statement of claim in 2019, including when she was represented by experienced senior and junior counsel;[67]

(b) the disputed documents were used in the same proceeding in which they had been produced, rather than for some different or unrelated proceeding;[68]

(c) it was difficult to see any particular prejudice Flora had suffered by the use of the disputed documents in the joinder application;[69]

(d) had an application to use the disputed documents been made at the time of the joinder application, it was likely that it would have been granted;[70] and

(e) a grant of leave was consistent with the overarching purpose of the Civil Procedure Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.[71]

1. The leave granted was expressed to operate retrospectively.[72]

Ground 2(b): Did the judge err in granting leave to use the disputed documents?

1. It is convenient to deal first with ground 2(b), which concerns the judge's decision to grant retrospective leave to the lawyers for Huat and Kam to use the disputed documents. That is because if the judge's decision to grant retrospective leave remains on foot, then the question whether the judge erred in finding that there had not been any breach of the Hearne obligation falls away, as counsel for Flora and Vincent accepted. The effect of this decision was that, even if there was a breach of the Hearne obligation, that breach has been retrospectively cured. Consideration of ground 2(b) is thus to be approached on the assumption that there was such a breach.
2. The judge's decision to grant leave to use the documents was interlocutory in nature. That, as mentioned above, is relevant to whether leave to appeal ought to be granted in relation to ground 2(b).[73]
3. There was a dispute between the parties about whether this decision was a discretionary decision attracting the 'deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King',[74] rather than the correctness standard. It is not necessary to decide this question, as counsel for Flora and Vincent accepted in the course of the hearing. That is because the nature of the errors that Flora and Vincent alleged encompassed asserted errors of principle and fact. They did not contend that the decision was so plainly unjust that this Court should infer error. Errors of the kind alleged are to be determined by reference to correctness, even if the ultimate decision was discretionary.
4. We will deal with each asserted error in turn.
5. First, Flora and Vincent said that the judge erred in relying on the fact that Flora's 19 July Affidavit had been referred to in Huat's and Kam's draft statement of claim.[75] They submitted as follows:

That one document had been referred ... says nothing about how the totality of what occurred in respect of all the documents should be considered. And if what is said in this paragraph is to be understood as some form of waiver, the correct principle is that what is necessary is 'express consent [or] express waiver'.

1. We do not accept that the judge erred in this regard. It was not in dispute that Flora and Vincent had known of the use of a subset of the disputed documents since October 2019, when Huat and Kam's draft statement of claim was filed. It was also not in dispute that they made no complaint until August 2024.[76] These facts were plainly relevant to the judge's exercise of discretion. Even if there were other disputed documents that were used, of which Flora and Vincent were unaware, that does not detract from the relevance of this fact.
2. Nor is this aspect of the judge's reasons to be understood as the judge reaching his conclusion based on 'some form of waiver'. The judge had earlier discussed waiver, and rejected implied waiver as sufficient to overcome the Hearne obligation.[77] He did not find express waiver. Rather, the judge was taking into account, as one factor in his exercise of discretion, Flora's delay in raising the issue. There is no error in doing so; delay was plainly relevant to the exercise of the discretion in question.
3. Secondly, Flora and Vincent said that, when the judge referred to the fact that the documents were used in the same proceeding in which they were discovered,[78] his Honour erred in construing 'the "proceeding" in this manner'. They referred back to an earlier part of their submissions, where they said this:

[The judge] confuses the different stages and different parties under the one banner of 'the proceeding'. The documents had been produced to Hock at the point in time when he was the plaintiff, and Huat and Kam were non-parties. That they were not used by Huat and Kam to commence a separate proceeding, instead were used to seek to be joined to an existing proceeding, is an irrelevant distinction, which again elevates form over substance.

1. We do not accept that the judge erred in the manner asserted. The judge did not confuse the different stages of the proceeding or the different parties. That is made clear by his Honour's discussion of Huat and Kam's entitlement to use all documents produced in the proceeding after they had been joined. Rather, this aspect of the judge's reasons reflected the fact that the documents had not been used in 'another piece of litigation or for other non-litigious purposes'.[79] That is, even accepting that the Hearne obligation was engaged and had been breached, the present case involved a close connection between the use of the documents and the proceeding in which they were produced, being a use to join parties to that same proceeding. This was a relevant factor for the judge to take into account in determining whether to grant leave for use of the disputed documents.
2. Thirdly, Flora and Vincent said that the judge erred in failing to discern 'particular prejudice'[80] to Flora. They submitted as follows:

The obvious prejudice is that, but for the use in breach of the implied obligation, there is no evidence which would support a conclusion that Huat and Kam would have been able to bring their claim.

1. We do not accept this submission. The use of the disputed documents involved the joinder of additional parties to an existing proceeding. As Judd J observed in Slea Pty Ltd v Connective Services Pty Ltd, the proceeding 'would thereafter continue under the supervision and management of the Court'.[81] The existence or continuance of proceedings, or their expansion to include additional parties, under judicial supervision does not involve a relevant prejudice to Flora. Furthermore, the question, at the interlocutory stage of the proceeding, in considering whether to grant leave to use the documents, was not whether there was evidence that Huat and Kam could have brought their claims in the absence of access to the disputed documents.
2. In light of these matters, we do not consider that the judge erred in concluding that there was no 'particular prejudice' to Flora in granting retrospective leave to rely upon the disputed documents.
3. Fourthly, Flora and Vincent said that the judge erred by concluding that, had leave been sought at the time the documents were used, it would have been granted. They submitted as follows:

That there was no opposition to leave being granted to permit use of Flora's affidavit in circumstances where a proper application was made and in the further circumstances of the proceedings as by then constituted ... is both irrelevant, and an insufficient 'evidentiary' springboard from which to conclude that, at an earlier point in time (and when the litigation with Hock as the only plaintiff would have failed), use would similarly not have been opposed. In any event, what would have needed to occur was, first and foremost, disclosure of the full extent of the documents intended to be used, and that disclosure should have been by Hock before he provided any documents to others.[82]

1. We do not accept this submission. It was not irrelevant that Flora did not oppose leave being granted to use Flora's 19 July Affidavit in a related proceeding. When confronted with whether to object to the use of several disputed documents, Flora had been content to permit their use. As the judge observed, at this time Flora and Vincent were represented by experienced senior and junior counsel. It was open to the judge to conclude that Flora was likely to have taken the same attitude to the use of those documents for the purposes of the joinder application. Contrary to Flora's and Vincent's submission, his Honour did not conclude that 'use would ... not have been opposed' - just that it was likely that it would not have been opposed. The fact that Flora and Vincent now say that something more 'needed to occur' does not alter the relevance of the fact to which the judge had regard.
2. Fifthly, Flora and Vincent said that the judge erred in concluding that a grant of leave was consistent with the overarching purpose of the Civil Procedure Act.[83] They submitted as follows:

Finally, there is but an assertion by the primary judge of the 'just, efficient, timely and cost effective' resolution, and, with respect, no analysis of justness.

1. We accept that his Honour did not set out in detail his reasons for so concluding at this point in the judgment; but, on a fair reading of his Honour's judgment, this was a conclusion that followed from all that he had previously set out, including the history of the proceeding (which he had set out in some detail), the claims made by the parties, the fact that the disputed documents were used only in the joinder application and the fact that both Huat and Kam advanced claims that they had contributed to the Trust assets.[84] In the present case, in light of the above matters, we consider that the judge was correct to conclude that the just, efficient, timely and cost effective resolution of the dispute between the parties would be advanced by a grant of leave to use the disputed documents.
2. Finally, at the hearing, Flora and Vincent added a further aspect to their challenge to the decision to grant leave for use of the documents, namely the judge's failure to refer to the fact that Hock, or someone associated with him (perhaps his solicitor, Mr Nguyen), must have breached the Hearne obligation by giving the documents to Huat and Kam and/or their lawyers. We do not accept that this reflects error on the part of the judge. Assuming that this was correct as a matter of fact,[85] the discretion fell to be exercised on the basis that a breach had occurred. The grant of leave (as sought and as made) was in terms directed to the use of the documents by the lawyers for Huat and by Kam. It was not an order excusing or authorising the use by the person who provided those documents to them. It would not have made any material difference to the exercise of the discretion that Hock, or someone associated with him, was a person in breach of the Hearne obligation.
3. For these reasons, we do not consider that there is any credible argument that the judge made an error in determining to grant retrospective leave to Huat and Kam's lawyers to use the disputed documents on that basis. We will therefore refuse leave to appeal in relation to that order.
4. Further, even if we were persuaded that one or more of the matters identified by Flora and Vincent were reasonably arguable, we will refuse leave to appeal in relation to the retrospective leave order. While the Hearne obligation issues raised by ground 2(a) are of 'general importance', we do not consider that the discrete question raised by ground 2(b) - namely, whether the judge erred in exercising his discretion to grant leave to use the documents - raises an issue of general importance. Furthermore, the judge's decision was interlocutory and Flora and Vincent have not identified any real prejudice if the order is allowed to stand. What will occur is that the claims advanced by Huat and Kam will now proceed to trial, where they can be tested by the parties and determined by a judge, with all of the safeguards present in the judicial process. This will occur after a judge has had the benefit of hearing all the evidence and full submissions, rather than on an interlocutory basis.
5. As the judge's order granting retrospective leave to Huat's and Kam's lawyers to use the disputed documents stands, it is unnecessary to consider whether there is a plausible argument that his Honour erred in concluding that the Hearne obligation had been not breached. That provides a sufficient basis to refuse leave to appeal on ground 2(a) and thus on ground 2 as a whole. This also means that it is not necessary to resolve the issues raised by the notice of contention.

1. It is convenient to turn now to ground 1, which was that the judge erred in failing to find an abuse of process. In their written case Flora and Vincent alleged that there had been an abuse of process by reason of two matters:

(a) first, the breaches of the Hearne obligation; and

(b) secondly, by reason of what they alleged was 'the deception in 2019, when an application was made only purportedly by Huat to be joined as plaintiff ... (purportedly, because of his advanced dementia ...)'.

1. Before the primary judge, the relief sought as a consequence of the alleged abuse of process was that the 5FASOC be struck out and the proceeding be stayed.[86]
2. In light of the decision of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, the standard of appellate review of a decision whether to stay proceedings as an abuse of process is the correctness standard, as Flora and Vincent contended.[87]
3. Given our conclusion on ground 2 concerning the Hearne obligation, this ground fails in so far as it turns on any alleged abuse of process by reason of alleged breaches of the Hearne obligation. Any such breaches have, in effect, been cured retrospectively by the judge's grant of leave for use of the disputed documents. Or, to put it differently, even if there was at the time of the joinder application an abuse of process by reason of a breach of the Hearne obligation, the effect of a grant of retrospective leave to use the documents has the effect that the proceeding is now permitted to continue, and the abuse of process falls away or becomes irrelevant.[88] Were it otherwise, the grant of retrospective leave to use the documents would serve no purpose.
4. In so far as this ground relies upon the proposition that there was a 'deception in 2019' concerning Huat's capacity, we note that Flora and Vincent do not identify by name who it is said practised that deception, or upon whom it was said to have been perpetrated. It is apparent from their written submissions that they allege a deception of the Court - a very serious allegation. It is also apparent from their written submissions that they allege the deception was practised by 'at least Kam'. They appear at times to allege that it was practised by Hock, and possibly by Huat and Kam's lawyers.
5. In their written case, Flora and Vincent submitted as follows:

Huat had no capacity to understand the legal issues and/or give instructions, at the time, in late 2019, when it was instead being presented to the Court, by others, that he:

a. understood the factual and legal issues ...;

b. wanted to be a plaintiff and understood what it meant ...;

c. had instructed counsel to deny the existence of an oral agreement with Flora ...; and

d. was capable of certifying to the Court, as required by s 41 of the Civil Procedure Act 2010 ...

...

Moreover, the joinder application was simply not brought by a litigation guardian, and nor was the Statement of Claim filed by a litigation guardian for Huat ... [S]omeone other than Huat took all the steps needed for the claim to proceed, presenting it as if it were being brought by him personally, including by the filing of an improper s 41 certificate.

The above all occurred in circumstances where, given the severity of Huat's dementia, at least Kam (his wife and carer) must have known that he had no capacity whatsoever. On the totality of the evidence before the primary judge, that inference had to be drawn. It was wrong for the primary judge to consider that 'the extent and timing of ... Huat's incapacity ... go to the merits of the underlying claims rather than establishing an abuse of process'.[89]

1. Similar claims were made in the course of the oral submissions on behalf of Flora and Vincent, namely that at the time of the joinder application in September 2019 Huat 'could not possibly have had capacity' to sign the s 41 certificate or to give instructions to make the claims pleaded in the proposed statement of claim relied on in the application for joinder.
2. It is notable that Flora and Vincent's submissions turned on propositions such as 'must have known' and 'could not possibly have had' capacity. That is, these were not propositions supported by direct evidence, or by any findings of the primary judge. Rather, this Court was invited to infer these matters from two key documents that were known to Hock and Kam.

(a) The first was a medical certificate from Dr Tan Chong Yong, dated 27 August 2015 (the '2015 medical certificate'), in which Dr Yong diagnosed Huat with 'dementia syndrome / senile dementia'.

The 2015 medical certificate had been annexed to an affidavit filed by Hock in the Family Court proceeding in 2015, in support of his application to be appointed as Huat's case guardian. Hock thus knew of this diagnosis in 2015 and it appears that Kam was also aware of it at that time. In addition, Flora was aware of this document at the time the Family Court orders were made in 2015.

(b) The second was a report produced by Dr Salleh on 4 December 2019 in which Dr Salleh diagnosed Huat with 'moderate to severe dementia'.[90] This report post-dated the joinder, which occurred in September 2019.

1. It is appropriate to set out some greater detail from Dr Salleh's December report.

(a) The report was unsigned and was as a consequence described by the judge as a 'draft report'. On 3 April 2020, Dr Salleh emailed a signed version of the December report to Luat Lawyers.

(b) The December report was based on interviews Dr Salleh conducted with Huat on 26 November 2019 and 3 December 2019.

(c) Dr Salleh described his interviews with Huat as follows:

When asked about the ongoing court case in Australia involving the Yap Family Trust, Mr. Yap merely says 'I want my money'. He says he was cheated of his money by his ex-wife, but is unable to give further information when asked details about the issue. He cannot remember the details of the establishment of the Yap Brothers Family Trust or the current issues pertaining to it.

He does not remember the names of his children with his ex-wife and is not sure how many children he has. He could not remember the name of his ex-wife when asked. He recognized and knew the name of his current wife, Mrs San Lin Kam, who is his main carer.

He does not remember his early life, where he went to school, whether he finished college, what his occupation was in the past, when he was married to his first wife, the number of children he has, when he established the Yap Family Trust, or when he divorced his first wife.

(d) Dr Salleh concluded in his December report that Huat lacked legal capacity. He said as follows:

Decision making capacity is situationally specific, and tends to be dimensional rather than categorical. For example, a person may not have the capacity to decide on matters regarding a complex court case, but is likely able to decide what shirt he wants to wear in the morning or if he wants to eat rice rather than noodles for dinner. This makes Mr. Yap's situation a complex one as he is able to communicate his basic wants, such as food or money that he believes was taken away from him; but in my opinion he is not able to make more complex decisions related to legal arguments.

On the balance of probabilities, I therefore believe Mr Chin Huat Yap does not have the capacity to make decisions on his own behalf in matters relating to the Yap Family Trust Court Case. However he does know that he has some cognitive difficulties and, it would seem, he trusts his wife, Mrs Kam, to act on his behalf.[91]

1. There is no reason to doubt the correctness of Dr Salleh's opinion concerning Huat's capacity as at 4 December 2019, based on his interviews with Huat on 26 November 2019 and 3 December 2019. It may also be accepted that Huat was diagnosed with dementia earlier, in 2015, given the medical certificate.
2. Flora and Vincent's argument appeared to proceed on the assumption that, once diagnosed with dementia, Huat had no capacity for any legal decision-making. But no evidence to that effect was adduced, as their counsel accepted in oral argument. There was no medical evidence concerning the question whether, notwithstanding that he had dementia, Huat might nonetheless have had lucid intervals during which he had capacity to give instructions.[92] Rather, Flora and Vincent pointed to evidence that, between Dr Salleh's first report and his updated report (in May 2020), there had been a 'severe progression [of Huat's dementia] in the space of a few months'. Again, that may be accepted. But it does not compel an inference that Huat lacked capacity in September 2019.
3. Furthermore, Mr Tran (Huat and Kam's solicitor) gave evidence that he spoke to Huat and Kam on 4 September 2019 and took instructions from them. He said as follows:

On 4 September 2019, I received instructions to act for Sau Lin Kam ... and Chin Huat Yap. I arranged to take instructions via an online audio-visual WhatsApp call, as they were residing in Malaysia at the time. I recall seeing and hearing both Sau Lin and Chin Huat during the WhatsApp conversation. Chin Huat was standing next to Sau Lin throughout the call. I primarily spoke with Sau Lin because she could communicate clearly in English. Although Chin Huat's English was limited, I recall him expressing in English that he wanted me to act on their behalf. During the call, I could hear Sau Lin speaking to Chin Huat in Chinese. They informed me that they had spoken with Mr. Hock Yap, who suggested that they might also have a claim on the assets of the Trust and recommended that they contact me.

... We had a further audio-visual conference on 5 September 2019, during which we discussed the fees and the names of the counsels I would brief in the proceedings. Following the conversation, I messaged them to confirm their instructions.

During the conversation on 5 September 2019 with Sau Lin and Chin Huat, I requested that they go to a solicitor in the country where they are residing and provide me with a Power of Attorney from Chin Huat, nominating Sau Lin as the main person to provide my office with instructions due to the language barrier.

From the conversation I had with Sau Lin and Chin Huat, I had no reason to suspect that Chin Huat lacked capacity. Although he was an elderly gentleman with limited English language, he was able to communicate with me by saying 'Hi' and standing next to Sau Lin, occasionally nodding his head, indicating that he understood what I was saying and that he would go to a solicitor in Malaysia to provide me with a Power of Attorney.

The following day, on 6 September 2019, I received an email from Mr. S. Palakrishnan of Messrs Pala & Associates, Advocates & Solicitors/Notary Public in Kuala Lumpur, attaching the requested Power of Attorney. ...

...

Thomas Victoria Lawyers' letter to my office on 15 November 2019 was the first time that I had notice of any concerns about Chin Huat's mental capacity. On the same day, notwithstanding the conversation I had with Chin Huat and Sau Lin, I immediately set in motion steps to have Chin Huat's mental capacity assessed. I requested that Sau Lin make arrangements for Chin Huat to be assessed and provide me with a medical report. I provided Sau Lin with a general letter addressed to 'To Whom It May Concern' dated 15 November 2019 to be given to the Medical Practitioner.

1. Mr Tran said that he did not receive a copy of the medical report until 25 March 2020.
2. Mr Tran was not cross-examined.
3. Thus, the unchallenged evidence before the judge was that, in September 2019, Mr Tran had no reason to doubt that Huat lacked capacity. Furthermore, a lawyer in Malaysia had provided a power of attorney, from which it could be inferred that that lawyer, too, had no concerns about Huat's capacity.
4. In the circumstances we would not be prepared to conclude that at the relevant times in September 2019 Huat lacked capacity to take the relevant steps in relation to the joinder application.
5. We note for completeness that many of the other documents upon which Flora and Vincent relied in support of this aspect of their abuse of process claim post-dated the joinder application in September 2019 by many months or years. These included:

(a) Dr Salleh's updated report dated May 2020;

(b) submissions filed in the Family Court proceeding dated 12 October 2020, signed by Mr Martindale KC (and a junior);

(c) Kam's witness statement in this proceeding dated 16 December 2022.

1. None of these documents shed any light on Huat's lawyers' knowledge about Huat's capacity in 2019.[93] The evidence was that Huat's lawyers only became aware of an issue about capacity when it was raised by Flora and Vincent's lawyers in November 2019, and that Dr Salleh's December report was provided to Huat's lawyers in March 2020.
2. In any event, even if we were to conclude that Huat lacked capacity at the relevant times, and that Hock and Kam knew that to be the case, that does not necessarily render the bringing of the proceeding on his behalf an abuse of process.
3. Importantly, a person who lacks capacity is not thereby precluded from bringing a proceeding or being joined as a party to a proceeding. Proceedings can be instituted on behalf of a person who lacks capacity by a litigation guardian; but also, proceedings that are commenced by a person who lacked capacity at the relevant time, and who did not at the commencement of the proceeding have a litigation guardian, are not thereby a nullity (or an abuse of process). Rather, the lack of capacity can be 'cured' by the later appointment of a litigation guardian.[94] Those aspects of the process for, and effect of, the appointment of a litigation guardian help to ensure that a person who lacks capacity is protected and does not lose their legal rights.
4. In the present case, once concerns about Huat's capacity were raised with Mr Tran he took steps to have Huat assessed, and that assessment in fact occurred (being Dr Salleh's assessment). Once that had occurred, steps were taken to appoint a litigation guardian for Huat. On 20 August 2021 Kam was appointed as litigation guardian by Lyons J, with no opposition from Flora and Vincent. That appointment meant that, even if Huat lacked capacity at the time the joinder application was made, his joinder was not a nullity and was effective to join him to the proceeding as a party. The irregularity, if there was one, of a person without capacity commencing a proceeding was cured. His joinder was plainly for his benefit, because it enables his claim to be a contributor to the Trust to be determined. Once that is accepted, Flora and Vincent's argument that the 'fact' of Huat's capacity at the time of the joinder means that the proceedings 'were an abuse of process when they were brought' cannot succeed.
5. Before the judge, the abuse of process argument was run on the basis that Hock and Kam had 'taken advantage of a man with severe dementia' by bringing a claim in Huat's name, when Huat 'never intended or wanted to bring such a claim'. That is, Flora alleged that Hock and Kam were litigating the primary proceeding for an improper purpose, namely to make claims against the resulting trust for contributions, which they would not otherwise be entitled to make without the joinder of Huat as a plaintiff.
6. The allegation that Huat 'never intended or wanted to bring' his claim against the Trust was in dispute. The judge did not make a finding to that effect. This claim was repeated on the appeal, but we were not taken to any particular evidence by reference to which we might make such a finding. Rather, the conclusion was said to be inferred from all the circumstances, including the diagnosis of moderate to severe dementia. Again, that submission overlooks the fact that a person with dementia may have wishes and intentions, and may have capacity from time to time.
7. For the same reasons, Flora and Vincent's submission that Huat 'could not possibly have had capacity to give the s 41 certificate' cannot be accepted.
8. The judge found that the joinder of Huat 'appears to have been undertaken primarily to pursue his potential entitlements as a contributor to the Trust'. The judge observed that Flora's submissions effectively invited the Court to conclude that the entire claim was a facade constructed by Hock and Kam for their own benefit.[95] His Honour rejected that submission, in three paragraphs that warrant repeating:

However, such serious allegations require clear and compelling evidence. The evidence before the Court on this interlocutory application falls short of establishing that the predominant purpose of Chin Huat's joinder was to obtain a collateral advantage from the fact of his joinder as such, as opposed to a collateral advantage flowing from any judgment or settlement in vindication of Chin Huat's legal rights which might be obtained in the proceeding.

Moreover, the context and timing of Chin Huat's joinder is significant. The Joinder Application followed naturally from the Court's determination about the failure of the Trust, which fundamentally altered the legal landscape and created potential rights that could be legitimately pursued on Chin Huat's behalf. While questions may exist about the extent and timing of Chin Huat's incapacity, these go to the merits of the underlying claims rather than establishing an abuse of process.

In the circumstances I am not satisfied on the evidence before the Court on this application that the joinder of Chin Huat or the claims made on his behalf constitute an abuse of process.[96]

1. We consider the judge was correct to conclude that, on the evidence before him, the allegation of an abuse of process by reason of Huat's dementia, and Kam and Hock's knowledge of his condition, at the time of the joinder application, was not made out.

Ground 3: Did the judge err in refusing to strike out the 5FASOC?

1. Ground 3 alleged that the judge erred in refusing to strike out the 5FASOC because of the alleged abuse of process and/or because of the alleged breaches of the Hearne obligation. This ground rises or falls with grounds 1 and 2. Given that we will refuse leave to appeal on those grounds, we will also refuse leave to appeal on ground 3.

Ground 5: Were each of the judge's decisions vitiated by breaches of the barristers' professional rules by Mr Martindale KC and Ms Willshire?

1. Ground 5, which was added by amendment, alleged that the hearing and determination of the three summonses miscarried, 'by reason of Martindale and Willshire appearing for Hock and Kam (also seeking to continue the proceeding for the estate of Huat), in breach of their professional rules and with a conflict of interest, and as a consequence the orders made in respect of those summons were erroneously made'.
2. In summary, under this ground Flora and Vincent contended as follows:

From the moment an order was sought in respect of the 5FASOC alleging breach of the implied obligation, Martindale and Willshire knew their own professional conduct was being called into question. There was no basis upon which they could have failed to have 'reasonable grounds to believe that the barrister's own personal or professional conduct may be attacked'. But they ignored rule 101 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers' Conduct Rules), and thus continue to act. ...

...

Once the summons was filed by Huat and Kam, seeking an order that would have absolved Martindale and Willshire (and Nguyen) of a contempt by the granting nunc pro tunc of leave to make use of the documents ... the position of counsel, advocating for an order that would benefit them, became absolutely untenable. Counsel could not assess where their interests in not having a contempt finding made against them ceased, and where the interests of Hock or Kam started. Counsel could not continue to act, hoping the primary judge might find no breach of the implied obligation, or might be prepared to grant leave nunc pro tunc if there had been a breach of the implied obligation (or grant leave without having to reach a concluded view on this issue).

...

Finally, there was a conflict between the interests of Hock and those of Kam, not only in respect of this issue of breaches of the implied obligation, but also in respect of the application by Kam to be made a representative of the estate of Huat ... There was a conflict because Hock, but not Kam, may have breached the implied obligation. And there was a conflict because Hock was propounding a will of Huat which Kam was not prepared to say she considered valid ... Thus, even if it might have been possible to conclude, by a reasonable and dispassionate counsel, that there was an identity of interests between Martindale and Willshire (and also Nguyen) and Hock, the same could not be said about identity between their interests and the interest of Kam. It followed that rule 101(b) was also in play.[97]

1. No argument of this kind was raised before the judge, as counsel for the applicant accepted in the course of the hearing before this Court. Nor was any explanation proffered for why the point was not raised below.
2. The High Court, and this Court, have frequently observed that in a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken on appeal.[98] In contrast, if a pure question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, 'it is expedient in the interests of justice that the question should be argued and decided'.[99]
3. The arguments sought to be advanced under ground 5 are arguments in relation to which evidence could have been adduced. In that circumstance, leave to appeal on this ground must be refused. But even if ground 5 is properly to be understood as raising only questions of law, in relation to which no further evidence could have been given, we do not consider it expedient in the interests of justice to grant leave to raise a new ground of this kind on an appeal from interlocutory orders that were discretionary in nature.
4. Thus leave to appeal on ground 5 will be refused.
5. For completeness, nothing in these reasons should be understood as finding, or accepting, that counsel engaged in conduct in breach of their ethical obligations.
6. It is also appropriate to observe that the mere fact that a party to litigation makes an allegation of professional misconduct against another party's barrister cannot be sufficient to require that the barrister return their brief. If that were so it would provide a perverse incentive for such allegations to be made in order to deprive a party of its counsel of choice. Rule 102 of the Barristers' Conduct Rules[100] recognises as much.

Ground 4: Did the judge err in appointing Kam as the personal representative of Huat's estate?

1. Ground 4 involved a challenge to a distinct decision of the judge, namely the decision to appoint Kam as the personal representative of Huat's estate for the purposes of the proceeding, under r 16.03 of the Rules.
2. Before the primary judge, and on the appeal, the parties were in disagreement about whether r 16.03 was available as a source of power to appoint a personal representative, or whether r 9.09 was the correct source of power. The parties were also in disagreement about whether Kam was an appropriate person to be appointed.[101]

1. The judge observed that the following facts were relevant to his consideration of whether to appoint Kam as the personal representative of Huat's estate:

(a) Hock had produced a document purporting to be Huat's last will and testament, in which Hock is appointed as the sole executor and the sole beneficiary of the estate.

(b) Hock does not intend to obtain probate at this stage because, as far as he is aware, there are no assets of the estate in Victoria unless the estate is successful in establishing an interest in the Trust in this proceeding.

(c) Kam has not accepted that the document Hock has produced is, in fact, Huat's will and reserves her position with respect to that purported will. However, she has consented to represent Huat's estate in this proceeding. She has said that, in the interests of minimising costs of any probate or related proceedings, she is prepared to work constructively with Hock in the resolution of this proceeding.[102]

1. Huat is survived by seven children. Hock, Vincent, and William are parties to this proceeding. Huat's other children, Bee Ling Yap, Bee Lian Yap, Bee Yong Yap, and Bee Keem Yap are not parties to this proceeding. The judge observed that Huat's children are aware of the proceeding.[103]
2. In relation to the source of power to make an order appointing a person as the personal representative of Huat's estate, the judge said 'that r 9.09 will take priority over r 16.03 if both are applicable in the circumstances'.[104] After referring to this Court's decision in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd,[105] the decision of John Dixon J in Bolitho v Banksia Securities Ltd (No 15)[106] and the decision of Gorton J in Sorbara v Prochilo (No 2),[107] the judge said this:

It may therefore be said that, where a party dies but the cause of action survives, r 9.09(2) will only recognise an interest or liability as having been assigned or transmitted to or devolved upon some other person if probate has been granted. Rule 16.03 is therefore the applicable rule until such time.[108]

1. His Honour considered that this was consistent with the New South Wales Supreme Court decision in Hewitt v Gardner,[109] concerning the analogous rule in the Uniform Civil Procedure Rules 2005 (NSW). The judge then went on:

The distinction between rr 9.09 and 16.03 reflects the fundamental difference between appointment of a representative for procedural purposes and the formal transmission of legal rights through probate. While [Flora's] argument about statutory interpretation has merit, it fails to recognize that r 16.03 serves a distinct procedural purpose - enabling proceedings to continue where formal probate is premature or impractical.[110]

1. The judge then turned to the exercise of the power in r 16.03.[111] He observed that it was discretionary in nature,[112] and that the following matters were relevant to the exercise of the discretion:

(a) whether, and to what degree, there is a nexus between the proposed representative and the deceased;[113]

(b) whether there is a named executor under the will;[114]

(c) whether there is a conflict of interest between the proposed representative and the estate; [115] and

(d) whether an appointment would go toward progressing the proceeding. [116]

1. The judge observed that this approach 'balances two competing considerations: the need for efficient progression of proceedings; and the protection of estate interests'. He observed that, in the present case, 'obtaining probate may be premature or unnecessarily costly', such that 'r 16.03 provides a practical mechanism to continue proceedings while preserving the ultimate determination of estate rights'.[117]
2. The judge also observed that, if the power under r 16.03(1)(b) is not exercised, then r 16.03(1)(a) would permit the proceeding to be continued without a person to represent Huat's estate.[118]
3. His Honour said this:

In circumstances where Ms Kam is otherwise a suitable representative of the estate for the purposes of this proceeding, I do not consider it appropriate to proceed in the absence of a representative. This is particularly relevant here where the estate's interest in the proceedings may be its only significant asset. Proceeding without a representative could prejudice potential beneficiaries' rights while providing no practical benefit.

The circumstances of this case strongly favour appointment under r 16.03. First, delaying the proceedings pending probate would cause unnecessary cost and delay. Secondly, the estate's primary asset may be contingent on the outcome of these proceedings, making immediate probate impractical. Thirdly, Ms Kam's previous role as litigation guardian provides continuity and familiarity with the proceedings.

It is also significant that, on 20 August 2021, the first defendant consented to orders pursuant to which Ms Kam was appointed as litigation guardian for Chin Huat in this proceeding, despite being aware of the circumstances now relied on by the first defendant to oppose Ms Kam's appointment under r 16.03.

As the death of Chin Huat terminated the authority of his wife, Ms Kam, to act as his litigation guardian, it is appropriate that an order be made appointing Ms Kam to represent his estate under r 16.03. Ms Kam's appointment would maintain continuity in the proceeding while preserving all parties' rights regarding the ultimate determination of estate matters. Her prior role as litigation guardian means she is familiar with the proceedings and the deceased's interests, making her well-placed to represent the estate's interests at this stage.[119]

1. Flora and Vincent made two overarching arguments in relation to ground 4.

(a) first, they contended that r 16.03 had no application; rather r 9.09 applied;

(b) secondly, they contended that the judge's exercise of discretion had miscarried by reason of various alleged factual matters.

1. It is appropriate to commence by setting out the text of the relevant rules, as well as the relevant provisions of the Administration and Probate Act 1958.

(1) Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may -

(a) proceed in the absence of a person to represent the estate of the deceased; or

(b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding.

(2) An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party.

(3) Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate.

(1) Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2).

(2) Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order -

(a) that the other person be added as a party to the proceeding or made a party in substitution for the original party; and

(b) that the proceeding be carried on as so constituted.

1. There are two additional rules that are related to r 9.09. The first is r 9.10, which deals with what is to occur when no order is made under r 9.09(2). Rule 9.10 relevantly provides as follows:

(1) Where a party dies, and a cause of action in the proceeding survives, but no order is made under Rule 9.09(2) substituting a personal representative of the deceased party as party, the Court, on application by a party or by a person to whom liability on the cause of action survives on the death, may order that unless an order for substitution is made within a specified time the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon survives on the death.

(2) On making an order under paragraph (1), the Court may, whether or not a grant of representation within the meaning of Rule 9.08(11) has been made, direct that if the proceeding is dismissed by virtue of the order, costs of the proceeding be awarded as follows -

(a) if the plaintiff dies, to the defendant against the personal representative of the deceased out of the estate of the deceased;

(b) if the defendant dies, to the personal representative of the deceased against the plaintiff.

1. The second additional rule is r 9.08, to which reference is made in r 9.10. Rule 9.08 relevantly provides as follows:

(1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased.

(3) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with paragraph (1).

(4) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased.

(5) In a proceeding within paragraph (1) or (3), the Court -

(a) may -

(i) appoint a person to represent the estate of the deceased for the purpose of the proceeding; or

(ii) if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding; and

(a) may order that the proceeding be carried on against the person so appointed or against the personal representative, as if that person or representative had been substituted for the estate.

(7) In any proceeding within paragraph (4), the Court may order that the personal representative of the deceased be made a party, and that the proceeding be carried on against the personal representative as representing the estate of the deceased.

(10) Where no grant of representation has been made any judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding.

(11) In this Rule grant of representation means an order granting probate or administration in Victoria or the resealing of a foreign grant in Victoria.

The Administration and Probate Act

1. The key provision of the Administration and Probate Act is s 29, which provides as follows:

29 Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate: ...

1. Other relevant provisions of the Administration and Probate Act are as follows:

13 Real estate to vest in executors and administrators

(1) Upon the Court granting probate of the will or administration of the estate of any deceased person, then subject to any limitations expressed in the grant all the hereditaments or all the hereditaments then unadministered of such person, whether held by him beneficially or in trust, shall vest as from the death of such person in the executor or administrator to whom such probate or administration is granted (as the case may be) for all the estate therein of such person, and if there is more than one such executor or administrator shall vest in them as joint tenants.

(2) In this section the hereditaments of a deceased person shall be deemed to include -

(a) all the estate of such person passing under any gift contained in his will which operates as an appointment under a general power to appoint by will or operates under the testamentary power conferred by statute to dispose of an entailed interest; and

(b) every estate pur autre vie which such person could if of full age and capacity have disposed of by his will.

15 Executor etc. neglects to prove, renounce or bring in the will

The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator any party interested under such will or in the estate or the State Trustees or any creditor of the testator may apply to the Court for an order calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant and upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful for the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant.

...

(1) Where any legal proceedings touching the validity of the will of a deceased person or for obtaining recalling or revoking any grant are pending the Court may grant administration of the estate of the deceased to an administrator who shall have all the rights and powers of a general administrator other than the right of distributing the residue of the estate and every such administrator shall be subject to the immediate control of the Court and act under its direction.

1. There are various authorities that have considered the construction and operation of rr 9.09, 9.10 and 16.03 and the relevant provisions of the Administration and Probate Act. Many, but not all, of the relevant authorities were canvassed by the judge.
2. It is convenient to begin, as the judge did, with this Court's decision in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd.[120] That case concerned proceedings instituted in 2013 by Apollo General Engineering against Culve Engineering and Mr Cerrato, who was a former director of Culve. Mr Cerrato died in August 2014. The cause of action against him survived against his estate pursuant to s 29 of the Administration and Probate Act. Apollo applied for an order under r 9.09 to substitute the executor of Mr Cerrato's estate (Ms Cerrato) as a defendant in the proceeding.
3. Culve Engineering argued that the Court had a discretion under r 9.09 to refuse to substitute upon the death of a party, to be exercised consistently with the overarching purpose in ss 7 to 9 of the Civil Procedure Act. It further argued the Court should exercise its discretion to refuse substitution due to the prejudice to the applicants caused by their inability to call Mr Cerrato to give evidence, and the plaintiffs' delay in instituting and prosecuting proceedings.[121] Apollo Engineering argued that, when an application is made under r 9.09, the Court must give effect to the 'entitlement' provided by s 29 of the Administration and Probate Act to continue the action absent any 'disentitling circumstances'. It submitted such circumstances might include an 'inordinate delay' in making an application under r 9.09, but that the current case did not fall within that category.[122]
4. This Court held as follows in Culve:

By virtue of the provisions of s 29 of the Administration and Probate Act, the respondents were entitled to continue the proceeding they had issued against Mr Cerrato's estate. ...

Rule 9.09 provides for the means whereby that entitlement could be given effect to, and whereby the proceeding could be regularised after Mr Cerrato's death.

The power in r 9.09 to make a substitution order is a power which has to be exercised consistently with the entitlement provided for by s 29 of the Administration and Probate Act. Absent 'disentitling circumstances', a substitution order should be made. ...

Disentitling circumstances cannot be constituted by matters which are a consequence of the death, such as the inability to call evidence from the deceased. This is because s 29 of the Administration and Probate Act has already addressed that issue and has provided that the action survives.

Disentitling circumstances might be constituted by matters arising under the Civil Procedure Act. An order might be refused if there were some inexcusable delay causing prejudice in the making of the application itself; or where a continuation of the proceeding would contravene or be inconsistent with the Civil Procedure Act, or would be an abuse of process, for reasons unrelated to the consequences of the death.[123]

1. Culve did not concern the operation of r 16.03, and that rule was not referred to in the decision. Although not referred to in the reasons for judgment, it is apparent from the Court file that probate had been granted to Ms Cerrato before the application for substitution was made. That meant that r 16.03 was not relevant.
2. We note the statement in Culve that r 9.09 'provides for the means' whereby s 29 is given effect.[124] It might be thought from that statement that the Court considered r 9.09 to be the only means by which s 29 is given effect - and thus that r 16.03 does not provide an alternative means whereby s 29 might be given effect. However, given that probate had been granted, there undoubtedly was a personal representative and so r 16.03 could have no application. In the circumstances we would not understand the Court's remarks to mean that in all cases r 9.09 provides the only means to give effect to s 29, even where there is no personal representative.
3. The relationship between r 9.09 and r 16.03 was considered by John Dixon J in Bolitho.[125] In that case the sixth defendant, Mr Trimbos, had died. He had a will, in which he named Ms Peiros as his executor. A question arose as to whether she should be appointed to represent his estate under r 9.09 or, alternatively, under r 16.03. Ms Peiros had not then been admitted to probate. John Dixon J ultimately appointed Ms Peiros under r 16.03. He said as follows:

Rule 16.03 is the appropriate rule. Rule 9.09 is applicable in circumstances where a party to the proceeding has died and their interest or liability in the proceeding has been assigned, transmitted or devolved to another person. Although Ms Peiros is named as executor under Mr Trimbos' will, there is no grant of probate or any other form of administration order that would assign, transmit or devolve the liability flowing from the proceeding to her. Until such time as that occurs, any application must proceed under r 16.03.

...

I am satisfied that the estate of a deceased person is interested in a question in this proceeding. I am also satisfied that the estate presently has no personal representative, as Ms Peiros is yet to apply for a grant of probate of Mr Trimbos' will.[126]

1. Similarly, in Sorbara Gorton J appointed a representative under r 16.03 where the defendant had died after trial but before judgment in circumstances where there was a will that named two executors, but probate had not yet been granted.[127] His Honour acknowledged that such a step risked complications in the event that probate was not later granted; but his Honour nonetheless found it appropriate to appoint a representative in the circumstances of that case.[128]
2. In New South Wales, Ward J took a similar approach to the analogous rule to r 16.03 in that jurisdiction, r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW), in Hewitt v Gardner:

The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances.[129]

1. Before the hearing, the Court drew the parties' attention to Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2), in which this Court had considered the operation of r 16.03.[130] The parties do not appear to have drawn this decision to the primary judge's attention.
2. Fifteenth Eestin concerned a dispute between various family members about a trust. Emanuel Rosenberg, who was one of the appointors of the trust, had commenced a proceeding concerning his purported removal of the initial trustee (Fifteenth Eestin) and appointment of a new trustee. Emanuel died after the trial judge delivered judgment and before the hearing of the appeal. Barry Rosenberg was named as executor in Emanuel's will, but probate had not been granted at the time of the hearing of the appeal. Barry sought an order that he be made the first respondent to the appeal in substitution for Emmanuel. The application was heard immediately before the hearing of the substantive appeal, in May 2009.
3. The Court said this:

At the hearing of the application, counsel were informed of the Court's preliminary view that, because Barry was Emanuel's personal representative, Barry could be substituted as a party to the proceeding under r 9.09(2) of the Supreme Court (General Civil Procedure) Rules 2005. It was therefore unnecessary to consider whether the Court should exercise the power conferred by r 16.03(1)(b) (to 'appoint a person to represent the estate for the purpose of the proceeding with the consent of the person appointed'). Where the Court exercises that power [under r 16.03], the judgment binds the estate of the deceased as if the personal representative were an original party to the proceedings.[131]

Counsel for the appellants indicated that they would consent to Barry being appointed to represent Emanuel's estate for the purpose of the appeal, but that they objected to his being described as 'executor of the will of Emanuel Rosenberg'. It was submitted that the Court should not make an order substituting Barry as a party in place of the original party under r 9.09(2), but should instead exercise power under r 16.03. ...

Counsel submitted that the person named as executor in the will was not the personal representative of the deceased until probate had been granted. Further, if the pleaded estoppel or constructive trust were made out, the provisions of the will might be so inconsistent with the representation made by Emanuel that the will could not operate. The Court should not 'pre-empt the outcome of that issue' by making an order for substitution - ie, designating Barry as executor - but should instead make an order under r 16.03.

Counsel for the respondents said that r 16.03 was irrelevant because there was a personal representative of Emanuel's estate. The 2004 will had appointed Barry as executor and, once probate was granted, the estate of the deceased would vest in the executor as from the date of death.

In our view, the submission of counsel for the respondents should be accepted. At common law, the title to the personal estate of the deceased vests in his or her executor from the date of death.[132] That principle continues to apply in Victoria. When probate is granted, s 13 of the Administration and Probate Act 1958[133] provides that any real estate belonging to the deceased vests in the executor retrospectively to the date of death. Thus, once a grant of probate has been made, the executor will be bound by any decision affecting Emanuel's real or personal property, even if the Court does not proceed under r 16.03. [134]

1. After considering, and rejecting, the only basis on which it was submitted that a grant of probate could be refused, the Court said this:

In our opinion, it is therefore unnecessary for the Court to proceed under r 16.03.[135]

1. In August 2009 the Court formally made an order for substitution of Barry, as executor of Emanuel's will, and the title of the appeal was amended accordingly.[136] The order did not specify the power under which it was made, but the reasons make clear that the Court considered it was exercising the power in r 9.09. It is unclear whether, by that time, probate had been granted over Emanuel's will.

1. It is convenient to commence with an explanation of how, in the present case, certain provisions of the Administration and Probate Act operate:

(a) Section 29 of the Administration and Probate Act has the effect that Huat's cause of action against Flora, the Trustee, Vincent and William survived for the benefit of his estate.

(b) Hock, as (apparent) executor of Huat's estate, did not bring in the will to prove it, nor had he renounced it, within six weeks of Huat's death.[137] Therefore, under s 15 of the Administration and Probate Act, any party interested in the estate[138] or State Trustees could seek an order requiring Huat to show cause why he should not either prove or renounce probate of the will. But no person has sought such an order.

(c) Given that Hock has not renounced the will or been cited to take out probate of it, his rights in respect of the executorship have not ceased under s 16 of the Administration and Probate Act. Thus he may, at a time in the future, seek probate.

(d) There are, at present, no proceedings on foot 'touching the validity' of Huat's will or for obtaining, recalling or revoking any grant of probate. Thus s 22 of the Administration and Probate Act is not engaged. (That section would have authorised the appointment of an administrator pending litigation.[139])

1. In short, then, when Huat died, his cause of action survived. Hock asserts that Huat left a will under which he is the executor and the sole beneficiary. Kam does not accept that the will is valid. Hock has not sought probate.[140] In those circumstances the question is which rule applies in relation to the continuation of the proceeding on behalf of Huat's estate: r 9.09 or r 16.03?
2. In our view, r 9.09 is the correct rule, and r 16.03 was not available. Our reasons for that conclusion are as follows.

1. It is appropriate to commence the analysis with the relevant text of the provisions - namely, the text of the conditions upon which each is enlivened.
2. Rule 16.03 operates when two preconditions are met:

(a) where a deceased person was interested, or the estate of a deceased person is interested, in a question in a proceeding; and

(b) where the deceased person 'has no personal representative'.

1. There is no real dispute that the first precondition is met: Huat's estate is 'interested in' the question in the proceeding concerning the distribution of the Trust assets. Rather, what is in dispute is whether Huat has a personal representative. The term 'personal representative' is not defined in the Rules.
2. In contrast, r 9.09(2) relevantly operates when two different preconditions are met:

(a) where a party to a proceeding dies, but the cause of action survives; and

(b) where the interest or liability of that party is assigned or transmitted to or devolves upon some other person.

1. Again there is no real dispute that the first precondition is met: Huat's cause of action has survived by reason of s 29 of the Administration and Probate Act. Rather, what is in dispute is whether Huat's interest has been assigned or transmitted to, or has devolved upon, some other person - namely Hock, as executor of Huat's will.
2. Notably, r 9.09 does not in terms refer to the question whether the deceased person has a personal representative. However, r 9.10 sheds some light on the operation of r 9.09. Rule 9.10(1) relevantly provides that:

(a) if a party dies, and a cause of action in the proceeding survives,

(b) but 'no order is made under r 9.09(2) substituting a personal representative as party',

(c) then the Court may order that, unless an order for substitution is made within a specified time, the proceeding is dismissed.

1. The language emphasised in (b), above, shows that an order under 9.09(2) involves substituting a 'personal representative' as a party. That is:

(a) where a person dies and there is a personal representative, r 9.09 is available (and r 16.03 is not);

(b) where a person dies and there is no personal representative, r 16.03 is available (and r 9.09 is not).

1. That is, the two rules are not both capable of operating in relation to a given set of facts. Rather, on a given set of facts only one can operate. There is thus no question of one prevailing over the other, no need for a harmonious construction and no need for the application of any rule of construction such as that applying where there is a conflict between general and specific provisions, or that identified in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia.[141]
2. It is also necessary to refer to r 9.10(2) of the Rules, which permits the Court to make certain costs orders. That power is expressed to be available 'whether or not a grant of representation within the meaning of r 9.08(11) has been made'. Rule 9.08(11) defines 'grant of representation' to mean 'an order granting probate or administration in Victoria or the resealing of a foreign grant in Victoria'. The costs orders mentioned in 9.10(2) include costs 'if the plaintiff dies, against the personal representative of the deceased out of the estate'.[142]
3. Given the 'whether or not' statement in r 9.10(2), the reference in r 9.10(2)(a) to a 'personal representative' includes an executor who has not obtained a grant of probate. And r 9.10(2) necessarily contemplates that an order under r 9.10(1) could have been made in relation to a personal representative where there has been no grant. This supports the proposition that, where the term personal representative is used in r 9.10, it is not used to mean only a person to whom a grant of representation has been made.
4. It is also appropriate to consider the operative parts of r 9.08. That rule concerns a cause of action against the estate of a deceased person; not a cause of action for the benefit of the estate. In r 9.08 the various powers conferred on the Court turn on whether there has been a grant of probate or administration. It is thus apparent that the manner in which a proceeding against the estate of a deceased person is to be carried on turns on whether probate has been granted or an order for administration has been made.
5. It is notable that the language of 'grant of representation' is not used in rr 9.09 or 16.03. This strongly supports the proposition that those rules do not turn on whether there has been a grant of probate (or other form of representation).
6. Ultimately, the question is whether, in a given case, there is, or is not, a personal representative of the deceased person.
7. The question whether a deceased person has, or does not have, a personal representative invites attention to whether a person who is named in a will as an executor is, thereby, the personal representative of the deceased. It is plain that, once probate has been granted, the executor will be the personal representative. The more difficult question is whether a named executor is the personal representative when probate has not been granted. A further question is whether a named executor can be the personal representative when the validity of the will is in dispute, and whether it matters whether litigation in relation to the validity of the will is on foot.

1. The context in which the phrase 'personal representative' is used in the Rules requires some attention to the law of succession in Victoria and the provisions of the Administration and Probate Act discussed above.
2. As noted above, the term 'personal representative' is not defined in the Rules. However, it is defined in the Administration and Probate Act as 'the executor original or by representation or administrator for the time being of a deceased person'.[143] Rules 9.09 and 16.03 provide the mechanisms by which the Rules give effect to s 29 of the Administration and Probate Act.[144] In light of that, we consider that the term 'personal representative' in the Rules ought to be given the same meaning as that term has in the Administration and Probate Act. That is, it means 'the executor original or by representation or administrator for the time being of a deceased person'.
3. That definition does not expressly require that the executor be an executor who has obtained probate. That suggests that it is not so limited. However, the definition does not make clear that an executor can be an executor who has not obtained probate. Thus, the definition does not fully resolve the question. But the apparent breadth of the definition supports the proposition that an executor may be a personal representative before probate has been obtained. As we will explain further below, that understanding of the definition is consistent with the common law of succession in Victoria.
4. As a final matter of broader context, we observe that in r 16.01 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, headed 'Definitions', 'personal representative' is stated 'not to include an executor who has not proved'. The implication to be drawn from the inclusion of that statement is that, if it were not for this statement, an executor who had not proved would be the personal representative. Given that this is a definition in different rules, this is not determinative; but it is supportive of the proposition that a personal representative, as that term is used in rr 9.09 and 16.03, includes an executor who has not obtained a grant of probate.
5. Given that neither the text of the rules nor the definition in the Administration and Probate Act provides a conclusive answer to when a person has a personal representative, it is appropriate to consider the position at common law.

1. In Fifteenth Eestin the appellants had submitted that the person named as executor in the will was not the personal representative of the deceased until probate had been granted. They thus urged the Court to make an order under r 16.03. In contrast, the respondents had submitted that r 16.03 was irrelevant because Barry was the personal representative of Emanuel's estate, because the will had him as executor.[145] The Court said that it accepted the respondents' submission. In other words, the Court considered that Barry was Emanuel's personal representative even though probate had not been granted. That conclusion was based on the common law of succession and on s 13 of the Administration and Probate Act.[146] The Court proceeded to make an order under r 9.09. The key passage from the case was as follows:

At common law, the title to the personal estate of the deceased vests in his or her executor from the date of death. That principle continues to apply in Victoria. When probate is granted, s 13 of the Administration and Probate Act 1958 provides that any real estate belonging to the deceased vests in the executor retrospectively to the date of death.[147]

1. However, it is notable that there is some ambiguity in the reasons in Fifteenth Eestin, arising from the following additional statements the Court made:

Thus, once a grant of probate has been made, the executor will be bound by any decision affecting Emanuel's real or personal property, even if the Court does not proceed under r 16.03.

... In our opinion, it is therefore unnecessary for the Court to proceed under r 16.03.[148]

1. That is, although the Court considered that it had power under r 9.09 to substitute Barry (as named executor) for Emanuel in that proceeding, it also appeared to consider that it could have made such an order under r 16.03 - as reflected in its statement that it was not 'necessary' for it to make such an order. The Court did not appear to be deciding that an order could only be made under r 9.09 - just that it could be so made. Nor did it decide that it could not make an order under r 16.03 - just that it did not have to use that rule. In other words, the Court appeared to consider that both rules could provide the relevant power.
2. Flora and Vincent contended that what is to be drawn from Fifteenth Eestin is as follows:

in this case, the title to the chose in action had vested in an executor as at the date of death. Now, there's a dispute about the will, but if one just looks facially at the will, it would have vested in Hock. ... [T]hat means there is already a representative. That means Rule 16.03 is not available. But that also means that Hock has to go through the hoops of Rule 9.09 to be able to reconstitute the proceedings and be the party to that proceeding.

1. They relied on a journal article by Mr Neville Crago, who said this about the position of an executor of an unproved will in Victoria:

The position in Victoria, therefore, is that an executor of an unproved will has devolutionary title to the testator's personal estate; and the testator's real estate still remains in the heir at law or devisee, as the case may be, by operation of law.[149]

1. It is appropriate to elaborate in some greater detail on the law of succession in Victoria, so as to explain why this Court's decision in Fifteenth Eestin was correct.
2. It is well established that, at common law, an executor derives title from the will of the deceased and not from the grant of probate, although the grant provides conclusive evidence of the executor's appointment and of the terms of the will.[150]
3. Derham AsJ explained the position in Simmons v Ross as follows:[151]

Although the executor derives title from the will, the office is not constituted until the person accepts the office, expressly or by conduct.[152] A grant of representation is evidence of the executor's status and is necessary to transfer certain assets, for example land under the operation of the Transfer of Land Act 1958 (Vic). But a grant of probate is not essential to the existence of the office.[153] Nor is it necessary to obtain a grant in order to administer and deal with the assets of the estate where proof of title is not required.[154] Thus, depending on the nature of the assets in the estate (and not necessarily their value), it may be possible for an executor to fully administer an estate without ever obtaining a grant of representation from this Court.[155]

An executor who takes title in personal property in Victoria may pass it to a third party, whether as purchaser or as volunteer.[156] There is no separate equitable estate to be taken account of while the estate is in the course of administration.[157] As a matter of law, the property may simply be sold or given. Whether the executor can do so without producing a grant of probate to prove title is a question of practicality not law. The purchaser or donee might decline to accept the property without proof of the executor's title to sell or give it. As the defendants pointed out in their reply submissions, the Supreme Court's website records:[158]

• It is not always necessary to apply for probate or administration when someone passes away. Often it will depend on what assets have been left behind by the deceased, and the requirements of institutions holding those assets... Sometimes these tasks can be done informally, without requiring anything from the Court.[159]

Further, there is no rule of law that an executor who has accepted the office must prove the will and obtain a grant of representation.[160] Under s 15 of the [Administration and Probate Act] the executor may be called upon to prove the will, and thus obtain a grant of probate, or renounce it.

The title of the executor to personal property of the testator is to be distinguished from the title to real property. In Victoria, real property[161] of the testator still vests in the heir-at-law between the date of death and the grant of probate or administration. Upon the grant of representation the real property vests 'as from the death' of the testator in the executor or administrator.[162]

1. In relation to real property, the executor's title is also dealt with by s 13(1) of the Administration and Probate Act, which provides that 'Upon the Court granting probate' the deceased's hereditaments vest in the executor retrospectively. That leaves personal property subject to the common law of succession, as this Court said in Fifteenth Eestin.[163]
2. Relevantly for present purposes, in Victoria the executor takes title to, and is able to deal with, the personal property of the estate from death, and prior to a grant of probate. That position in relation to real property is dealt with by s 13, with retrospective effect. Given that, the executor is properly regarded as the personal representative of the deceased from the date of death.
3. There are also various authorities that recognise that an executor can bring a proceeding 'in the character of an executor' before they prove the will. Thus in Chetty Lord Parker said this:

It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title.[164]

1. Similar remarks were made in Cooke v Stevens.[165]
2. The qualification - that the executor cannot 'obtain a decree before probate' - does not preclude the bringing of the proceeding, and the bringing of the proceeding is done as executor, that is as the personal representative of the deceased.
3. There is also authority to the effect that, although a personal representative may initiate proceedings in the absence of a grant of probate, such proceedings would generally be stayed until probate is granted. Thus, in Ingall v Moran, Goddard LJ said this:

There is no doubt that where a deceased person leaves a will and therein names an executor the latter can institute actions before obtaining probate, though the actions may be stayed until the probate is granted. The reason for this is, no doubt, that the executor's title is derived from the will which operates from the death of the testator, and all he has to do is to prove the will, that is, to prove that the will which names him as executor is the last will of the deceased. He has a title to sue, but the court requires him to perfect his title and will not allow the action to proceed till this has been done. The action will be stayed, but not dismissed.[166]

1. Finally, the common law position was applied by Nettle J in Dowling v St Vincent De Paul Society Victoria (Inc).[167] That case concerned s 19(1) of the Trustee Act 1956, which confers various powers on a personal representative. That term is defined in the same manner as in the Administration and Probate Act and includes an executor. In Dowling Nettle J considered whether the scope of the power conferred upon an executor by s 19(1)(f) of the Trustee Act authorised the compromise of a proceeding. His Honour said this:

I also acknowledge the force of Dr Hardingham's submission that executors derive their title from the will by which they are appointed and, in that sense, that the plaintiffs have as much power now under s 19(1)(f) as they would have when and if probate is granted.[168] In principle it does not detract from the force of that submission that a grant is necessary in order to establish that the executors were validly appointed. ... Furthermore, if the executors obtain a grant of probate, as is envisaged in the compromise, the grant will confirm that the executors were truly the deceased's personal representatives when they entered into the compromise. In the result I am inclined to agree that the scope of the power conferred upon an executor by s 19(1)(f) should not be thought to vary according to whether the executor has or has not yet obtained a grant of probate.[169]

1. Nettle J ultimately held that s 19(1)(f) did not authorise an executor 'to compromise a probate proceeding in which the validity of the will is contested'.[170] That conclusion is unsurprising, and is not relevant to the present context, because there is no proceeding in which the validity of the will is contested.
2. These authorities demonstrate that, at common law, an executor named in a will may act as the personal representative of the deceased from the date of death, prior to a grant of probate. That includes a power to bring proceedings on behalf of the estate, in their capacity of executor. There will be some acts that cannot be completed by the executor until after a grant of probate (such as transferring real property). And it appears that a legal proceeding brought by an executor might not be determined, and orders made for the benefit of the estate, prior to probate that proves the executor's entitlement. But those qualifications do not, in our view, mean that a named executor is not the personal representative from the date of the deceased death.
3. However, it is also important to emphasise that the mere naming of a person as executor in a will is not enough alone to make that person the executor. As Derham AsJ said in Simmons, although an executor derives title from the will, the office is not constituted until the person named as executor accepts the office, either expressly or by conduct.[171] Thus in any given case it will be necessary to ascertain whether the named executor has in fact accepted the office by their conduct.
4. As a final matter, we have considered the relevance of New South Wales authorities on the question of when a person will have a personal representative. We have concluded that the statutory context in New South Wales is sufficiently different to render New South Wales authorities of limited assistance to the task of ascertaining the position in Victoria.[172] For this reason, we consider that the New South Wales authorities provide no real assistance in the construction of rr 9.09, 9.10 and 16.03.
5. It follows from the above analysis that we consider that Bolitho and Sorbara were decided on an incorrect legal basis.

1. Returning to the present proceeding, Hock is the named executor of Huat's will and there has been no grant of probate. On its face it would thus appear that Hock is Huat's personal representative, with authority to conduct proceedings on behalf of the estate. However there are two further matters requiring consideration.
2. First, as mentioned earlier, Kam has said that she reserves her position in relation to the will. However, she has not directly challenged the validity of the will. There is a question whether her position impacts on Hock's executorship. In our view, it does not. That is because there is presently no dispute about the validity of the will on foot; rather, there is the possibility of a dispute about the will in the future.
3. In any event, even if Kam's statement were sufficient to evidence a dispute about the will, in our view a mere statement to such effect would not be sufficient to defeat the named executor's office. Rather, the Administration and Probate Act contains various provisions designed to deal with the position of the executor where a will is disputed and probate has not been obtained. Thus:

(a) Kam could utilise the procedure in s 15 of the Administration and Probate Act to seek to have Hock either prove the will (the validity of which she might then challenge) or renounce it.

(b) Kam could bring proceedings disputing the validity of the will, or perhaps even raise that as an issue in the present litigation, in which case the Court could appoint an 'administrator pending litigation' pursuant to s 22 of the Administration and Probate Act.[173] Such appointment would, by reason of s 21, then preclude any other person (including Hock) from bringing any proceeding or acting as executor.

1. Thus in our view Kam's position in relation to the validity of Huat's will does not preclude Hock from acting as executor and from being Huat's personal representative.
2. The second matter that requires attention stems from the fact that it is unclear whether Hock has accepted the office of executor, either expressly or by conduct. This was not put in issue below by the parties and the judge did not make any finding about whether Hock had accepted the office. Nor was this issue the subject of submissions in this Court.
3. We consider that if Hock has accepted the office of executor, either expressly or by conduct, then:

(a) Huat's interest in the Supreme Court proceeding had devolved upon Hock, as executor, by reason of the common law, with the consequence that r 9.09 was engaged.

(b) In those circumstances, Huat had a personal representative and thus r 16.03 was not engaged.

1. However, given the absence of a finding that Hock has accepted the office of executor, it is not possible at this stage to conclude which of the two powers was available to the primary judge after Huat's death. Thus in our view the judge erred in relying on r 16.03 without first making a finding about Hock's executorship.
2. We did not hear argument on the question whether Hock had accepted the office of executor, whether expressly or by conduct, and this is an issue about which it may be that additional evidence could have been adduced. In those circumstances it is not appropriate for this Court to make that decision. Rather, it is appropriate to remit the matter to the primary judge to determine whether Hock has accepted the office of executor of Huat's will and then to determine what power is available to him following that determination.
3. It is also appropriate to note that r 9.09 and r 16.03 are not the only sources of power under which a judge may appoint a person to represent a deceased person's estate in litigation. The Court has an inherent power to grant a form of administration known as 'administration ad litem', meaning administration 'for the suit'.[174] That inherent power is not displaced by r 9.09 or r 16.03. There is no provision in the Administration and Probate Act expressly providing for this form of administration. But the inherent power is not displaced by the Administration and Probate Act, as is recognised by ss 6, 67 and 69 of that Act.[175] This Court has on various occasions appointed persons as administrators ad litem.[176]
4. The inherent power to appoint an administrator ad litem is not subject to the same precondition as r 16.03 (namely, that there is 'no personal representative'). However, as explained in the authorities, it is subject to other principles governing its application.[177] Those principles are not necessarily the same as those governing the exercise of the discretion conferred by r 16.03.[178] In particular, under s 57 of the Administration and Probate Act, the Court may require, as a condition of granting administration, an administration guarantee. That section appears to have no application to an appointment under r 16.03.

(a) refuse leave to appeal on grounds 1, 2, 3 and 5;

(b) grant leave to appeal on ground 4 and allow the appeal on that ground; and

(c) remit the proceeding to the primary judge to determine the appropriate course in relation to the representation of Huat's estate, in accordance with these reasons.

• YAP BROTHERS HOLDINGS PTY LTD (ACN 006 004 324)

[1] Because several of the parties in the proceeding have the same surname, we will identify all of the parties in a more casual manner, as did the parties in their submissions and in oral argument. No disrespect is intended.

[2] Three daughters of the marriage are not parties to the proceeding.

[3] Yap v Lee [2019] VSC 743, [1]-[2].

[4] Yap v Lee (No 2) [2024] VSC 730 ('Reasons'), [2].

[5] Now the Supreme Court (General Civil Procedure) Rules 2025 ('new Rules'). None of the rules in issue in this proceeding are in any different form in the new Rules.

[6] That is a reference to the implied legal obligation in that prevents parties from using documents obtained through compulsory court processes for any collateral or ulterior purpose: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 ('Hearne'). The parties used the phrase 'Harman undertaking' (from the case Harman v Secretary of State for the Home Department [1983] 1 AC 280). However, in light of the High Court's more recent discussion of the implied obligation, we will refer to it as the 'Hearne obligation'.

[7] By the 'second summons', Flora and Vincent sought leave to withdraw admissions previously made in their defences. The judge granted the relief sought in this summons.

[8] For convenience we will refer to the proposed grounds of appeal simply as grounds of appeal.

[9] Lee v Yap [2025] VSCA 260.

[24] See Yap v Lee [2019] VSC 743, [2].

[29] As required by s 41 of the Civil Procedure Act 2010.

[36] At the hearing of the appeal counsel for Flora and Vincent sought to rely on two items of further evidence that had been included in the Appeal Book but had not been before the primary judge:

(a) submissions filed on behalf of Huat in the Family Court in September 2020 relation to the appointment of a case guardian for Huat in that proceeding, which had been authored by Mr Martindale KC and Dr Anna Parker of counsel; and

(b) transcript of the hearing of the case guardian application in the Federal Circuit and Family Court of Australia (Div 1) on 31 August 2020.

Flora and Vincent had not made an application to adduce further evidence on the application for leave to appeal. Such application was made belatedly in the course of oral argument, after counsel for Mr Martindale objected to this evidence. The Court declined the application. We have thus not had regard to this material.

[46] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 560-1 [43] (Gageler J); see also 582-3 [128] (Edelman J), describing the standard as one of 'judicial restraint'; [2018] HCA 30 ('SZVFW'); referring to House v The King (1936) 55 CLR 499; [1936] HCA 40 ('House').

[47] House (1936) 55 CLR 499, 504-505; [1936] HCA 40.

[48] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119, 1127 [25] (the Court); [2024] HCA 30 ('Moore').

[49] Lanzer v Lombardo [2025] VSCA 229, [42]-[43] (Walker, Orr and Kenny JJA).

[50] See, eg, Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236; (2024) 76 VR 75, 99 [83]-[84] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236; Fei v Hexin Pty Ltd [2024] VSCA 158; (2024) 75 VR 581, 588 [71] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158; Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32, [19] (Ferguson CJ, Whelan and McLeish JJA); Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441 (Murphy J, Gillard J agreeing at 445 but disagreeing in the outcome, McInerney J agreeing at 433); Perry v Smith (1901) 27 VLR 66, 68-9 (Williams, Holroyd and A'Beckett JJ).

[51] See, eg, Fei v Hexin Pty Ltd [2024] VSCA 158; (2024) 75 VR 581, 588 [71] (Kennedy, Macaulay and Lyons JJA); [2024] VSCA 158; Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260, [110], [113] (Kyrou and McLeish JJA).

[52] Lanzer v Lombardo [2025] VSCA 229, [43] (Walker, Orr and Kenny JJA).

[53] It is appropriate to note that it is not desirable for a single ground of appeal to be directed to two distinct decisions, involving different legal and factual considerations.

[63] Reasons, [123], [124], [126]. The judge noted that, once Huat and Kam were joined as parties, they were entitled to use any previously discovered documents (including the 25 September 2019 documents) in the proceeding: at [129].

[72] This was demonstrated by the use of the Latin phrase 'nunc pro tunc'.

[73] See paragraphs [62]-[64] above.

[74] SZVFW [2018] HCA 30; (2018) 264 CLR 541, 560-1 [43] (Gageler J); [2018] HCA 30; citing House (1936) 55 CLR 499, 504-505; [1936] HCA 40. Edelman J described the standard as one of 'judicial restraint': at 582-3 [128]. See discussion above at paragraph 62.

[79] See Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283, 289-90 [31] (Branson, Sundberg and Alsop JJ); [2005] FCAFC 3, quoted by the judge at Reasons, [101].

[81] [2017] VSC 706; (2017) 53 VR 161, 172 [44] (Judd J); [2017] VSC 706.

[84] Reasons, [19]-[30], [55]-[72].

[85] It is not necessarily appropriate to make that assumption, given that William was, at the relevant time, the fourth defendant to the proceeding and would thus have had access to the documents produced by Flora.

[86] The latter relief was identified in oral argument: Reasons, [142].

[87] [2023] HCA 32; (2023) 280 CLR 442, 455-6 [15]-[16] (Kiefel CJ, Gageler and Jagot JJ), 483-4 [95] Steward J), 502 [161] (Gleeson J); [2023] HCA 32.

[88] This conclusion is consistent with two decisions in the Slea Pty Ltd v Connective Services Pty Ltd litigation. In that litigation, Almond J had found a breach of the Hearne obligation by Connective Services Pty Ltd and a related company. He held that the use of the document in question was an abuse of process, and stayed the proceeding: Connective Services Pty Ltd v Slea Pty Ltd [2017] VSC 182; (2017) 53 VR 130, 153 [76]-[77]; [2017] VSC 182. Connective Services Pty Ltd then sought retrospective leave to use the document, and a lifting of the stay. Judd J granted that relief and permitted the proceeding to continue: Slea v Connective Services Pty Ltd (2017) 53 VR 161; [2017] VSC 706. (Almond J's decision was appealed to this Court, then to the High Court, but this aspect of the decision was not challenged: Slea Pty Ltd v Connective Services Pty Ltd (2018) 341 FLR 208; [2018] VSCA 180; Connective Services Pty Ltd v Slea Pty Ltd (2019) 267 CLR 461; [2019] HCA 33. Judd J's decision was not appealed.)

[92] See, in the context of testamentary capacity, Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, [167] (Santamaria JA, Beach JA agreeing at 195 [232], Kyrou JA agreeing at 195 [233]); [2015] VSCA 60; Kantor v Vosahlo [2004] VSCA 235, [48] (Buchanan and Phillips JJA, Ormiston JA agreeing at [1]).

[93] As noted above, it is not entirely clear whether Flora and Vincent alleged that Huat's lawyers were aware of his lack of capacity when they prepared the joinder application made in September 2019. Flora and Vincent's submissions said, quite inappropriately, that 'at least' Kam knew of Huat's lack of capacity, and that Huat's capacity was misrepresented to the court by unnamed 'others'.

[94] Clarey v Permanent Trustee Co Limited [2005] VSCA 128, [53] (Charles, Eames And Nettle JJA); R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VicRp 55; [1969] VR 445, 447 (Newton J); Ex parte Brocklebank; In re Brocklebank (1877) 6 Ch D 358, 360 (James LJ), 361 (Cotton LJ), referred to in Mewburn v Mewburn (1934) 51 WN NSW 170, 171 (Boyce J).

[97] Emphasis in original. Citations omitted.

[98] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33, and the authorities there cited; Sambucco v Sambucco (2023) 72 VR 121, 128 [29] (McLeish and Walker JJA and Gorton AJA); [2023] VSCA 199; Viterra Malt Pty Ltd v Cargill Australia Limited [2023] VSCA 157; (2023) 74 VR 1, 204 [1241] (Sifris, Walker and Whelan JJA); [2023] VSCA 157.

[99] O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319 (Mason J); [1982] HCA 33; Sambucco v Sambucco (2023) 72 VR 121, 128 [29] (McLeish and Walker JJA and Gorton AJA); [2023] VSCA 199.

[100] Legal Profession Uniform Conduct (Barristers) Rules 2015.

[105] [2017] VSCA 182; (2017) 53 VR 219, 232 [59]-[61] (Whelan and Ferguson JJA); [2017] VSCA 182 ('Culve').

[106] [2020] VSC 725, [14], [17] (John Dixon J) ('Bolitho').

[107] [2022] VSC 225, [4] (Gorton J) ('Sorbara').

[109] (2009) 3 ASTLR 407, 431 [89] (Ward J); [2009] NSWSC 705 ('Hewitt').

[112] His Honour referred to Talacko v Talacko [2015] VSC 624; (2015) 305 FLR 353, 405 [165] (Sloss J); [2015] VSC 624 ('Talacko'); Hewitt (2009) 3 ASTLR 407, 432 [92] (Ward J); [2009] NSWSC 705.

[113] His Honour referred to Talacko [2015] VSC 624; (2015) 305 FLR 353, 406 [170] (Sloss J); [2015] VSC 624.

[114] His Honour referred to Bolitho [2020] VSC 725, [17] (John Dixon J).

[115] His Honour referred to Hewitt (2009) 3 ASTLR 407, 432 [94], [96] (Ward J); [2009] NSWSC 705.

[116] His Honour referred to Sorbara [2022] VSC 225, [4](a) (Gorton J); Hewitt (2009) 3 ASTLR 407, 431-2 [89]-[91], [96] (Ward J); [2009] NSWSC 705.

[120] (2017) 53 VR 219; [2017] VSCA 182.

[121] [2017] VSCA 182; (2017) 53 VR 219, 230 [50] (Whelan and Ferguson JJA); [2017] VSCA 182.

[122] [2017] VSCA 182; (2017) 53 VR 219, 231 [51] (Whelan and Ferguson JJA); [2017] VSCA 182.

[123] [2017] VSCA 182; (2017) 53 VR 219, 232 [57]-[61] (Whelan and Ferguson JJA); [2017] VSCA 182.

[124] [2017] VSCA 182; (2017) 53 VR 219, 232 [58] (Whelan and Ferguson JJA); [2017] VSCA 182 (emphasis added).

[125] [2020] VSC 725.

[126] [2020] VSC 725, [14], [17] (John Dixon J).

[127] [2022] VSC 225, [2] (Gorton J).

[128] [2022] VSC 225, [3], [4] (Gorton J).

[129] (2009) 3 ASTLR 407, 431 [89] (Ward J); [2009] NSWSC 705 ('Hewitt').

[130] (2009) 24 VR 155; [2009] VSCA 112 ('Fifteenth Eestin').

[132] Ryan v Davies Bros Limited (1921) 29 CLR 527; [1921] HCA 53.

[133] Under s 13(2), this includes property over which the testator had a general power of appointment.

[134] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 163-165 [28]-[34] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 112 (footnotes in original, emphasis added).

[135] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 165 [34] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 112

[136] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 196 [14] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 178.

[138] Persons interested in the estate might include Huat's wife (Kam) and children (including but not limited to Hock, Vincent and William). It does not appear from the facts of which we are aware that Flora would be such a person.

[139] This form of administration was historically known as 'administration pendente lite'. See, eg, Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568, 600-1 [65] (Ormiston JA); [2005] VSCA 153.

[141] [1932] HCA 9; (1932) 47 CLR 1, 7-8 (Gavan Duffy CJ and Dixon J), 11 (Starke J), 14-5 (Evatt J), 20-1 (McTiernan J); [1932] HCA 9.

[143] Administration and Probate Act 1958, s 5.

[144] Culve [2017] VSCA 182; (2017) 53 VR 219, 232 [58] (Whelan and Ferguson JJA); [2017] VSCA 182 (emphasis added).

[145] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 164 [30]-[31] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 112.

[146] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 164-5 [32]-[34] (Maxwell P, Neave and Redlich JJA) (footnotes omitted); [2009] VSCA 112.

[147] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 164 [32] (Maxwell P, Neave and Redlich JJA) (footnotes omitted); [2009] VSCA 112 citing Ryan v Davies Bros Ltd (1921) 29 CLR 527; [1921] HCA 53.

[148] [2009] VSCA 178; (2009) 24 VR 155, 164 [32], 165 [34] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 112.

[149] Neville Crago, 'Executors of Unproved Wills: Status and Devolution of Title in Australia' (1993) 23 Western Australian Law Review 235, 243. No judicial authority was given for this proposition; rather, there was a reference to a text book by L McCredie, Wills, Probate & the Administration of the Estates of Deceased Persons in Victoria (Butterworths, 2nd ed, 1982) 111.

[150] Simmons v Ross [2018] VSC 306 (Derham AsJ) ('Simmons') (an appeal from his Honour was dismissed: Ross v Simmons [2018] VSCA 342); Ryan v Davies Bros Ltd [1921] HCA 53; (1921) 29 CLR 527, 536 (Knox CJ, Higgins and Starke JJ); [1921] HCA 53; Chetty v Chetty [1916] 1 AC 603, 608 (Lord Parker) ('Chetty'); Hawkins v Clayton (1988) 164 CLR 539, (Brennan J); [1988] HCA 15.

[151] Simmons [2018] VSC 306, [67]-[70] (Derham AsJ) (footnotes in original).

[152] Williams, [a reference to John G Ross Martyn and Nicholas Caddick (eds), Williams, Mortimer and Sunnucks on executors, administrators and probate (Sweet & Maxwell, 20th ed, 2013)] [9-01]-[9-03]; Neville Crago _'_Executors of Unproved Wills: Status and Devolution of Title in Australia', (1993) 23 UWA Law Review 235, 237, fn 4 ('Crago'); In Re Stevens; Cooke v Stevens [1897] 1 Ch 422 (North J).

[153] Crago, ... 237; In Re Stevens; Cooke v Stevens [1897] 1 Ch 422 (North J), 429; affirmed on appeal in In Re Stevens; Cooke v Stevens [1898] 1 Ch 162. In the primary decision, North J notes by reference to Williams on Executors, 9th Ed, 249, that executors may do almost all the acts which are incident to his office before he proves the will. The sticking point is that for the executor to compel by action the recovery of a debt or other thing, or to establish the right to assent to a specific legacy or give a valid title to a legatee, the proof of the right depends upon the will of the deceased which can only be effected by producing the probate or by other evidence of the admission of the will in the Court.

[154] Counsel for the plaintiff conceded as much in her oral submissions: Transcript of Proceedings_, Simmons v Ross & Ors_ (Supreme Court of Victoria, 3921/2017, Derham AsJ, 17 May 2018) 17.

[157] Commissioner of Stamp Duties (QLD) v Livingston (1964) 112 CLR 12, 17; Crago, ... 247, fn 52.

[158] https://www.supremecourt.vic.gov.au/forms-fees-and-services/wills-and-probate/applying-for-a-grant-of-probate-or-administration.

[159] It should be noted, however, that specific provision is made in the [Administration and Probate Act] for payments of money and the transfer of personal property without a grant of representation where the value is not more than a 'threshold amount': [Administration and Probate Act] ss 31A, 31B.

[160] Crago, above n 72, 239, fn 14.

[161] In s 13 of the [Administration and Probate Act] called 'hereditaments', which includes corporeal hereditaments (land and buildings) and incorporeal hereditaments (easements etc), commonly described as real property.

[162] [Administration and Probate Act] s 13, Larkin v Drysdale [1875] VicLawRp 83; (1875) 1 VLR (L) 164; Re McDonald's Settlement [1928] VicLawRp 26; [1928] VLR 241; Macleay v Treadwell [1937] AC 626; RG de B Griffith, RA Sundberg Griffith's Probate Law and Practice in Victoria, (Law Book Co., 3rd ed. 1983) 23, fn 13; LexisNexis, Wills Probate and Administration Service Victoria, vol 1 [s 13.1]; Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg (2009) 25 VR 155 [32].

[163] Fifteenth Eestin [2009] VSCA 178; (2009) 24 VR 155, 164 [32] (Maxwell P, Neave and Redlich JJA); [2009] VSCA 112, citing Ryan v Davies Bros Ltd (1921) 29 CLR 527; [1921] HCA 53.

[164] Chetty [1916] 1 AC 603, 609-10 (Lord Parker) (emphasis added).

[165] In re Stevens; Cooke v Stevens [1987] 1 Ch 422, 430-1 (North J) (emphasis added); citing 'Williams on Executors (9th ed) 249 - a reference to Edward Vaughan Williams and Sir Roland L Vaughan Williams, A treatise on the law of executors and administrators (Stevens, 9th ed, 1893).

[166] [1944] 1 KB 160, 170 (citations omitted). His Lordship referred to Tarn v Commercial Banking Company of Sydney (1884) 12 QBD 294. This course of action was adopted by Irving AsJ in Thorne v Todhunter [2022] VSC 284, [105]-[109].

[167] [2003] VSC 454 ('Dowling').

[168] Ryan v Davies Bros Ltd [1921] HCA 53; (1921) 29 CLR 527 at p. 536; Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603; [Griffith's Probate Law and Practice in Victoria 3rd Ed, p 10].

[169] Dowling [2003] VSC 454, [26] (Nettle J) (footnotes in original).

[170] Dowling [2003] VSC 454, [27] (Nettle J).

[171] [2018] VSC 306, [67] (Derham AsJ). His Honour referred to Williams, Mortimer and Sunnucks on executors, administrators and probate (Sweet & Maxwell, 20th ed, 2013), and to Neville Crago, 'Executors of Unproved Wills: Status and Devolution of Title in Australia' (1993) 23 Western Australian Law Review 235, 237 n 4.

[172] There are two reasons for this. First, r 7.10 of the Uniform Civil Procedure Rules (NSW) is in a materially different form from r 16.03 of the Rules. Secondly, in New South Wales the common law concerning the status of a named executor has been displaced by ss 44 and 61 of the Probate and Administration Act 1898 (NSW): see Byers v Overton Investments Pty Limited [2001] FCAFC 760; (2001) 109 FCR 554 (Branson, North and Stone JJ); [2001] FCA 760; but contrast Deigan v Fussell [2019] NSWCA 299, [61]-[187] (White JA).

[173] It is only necessary in order to enliven s 22 of the Administration and Probate Act that there be legal proceedings 'touching the validity of the will of a deceased person'.

[174] See, eg In the Estate of McGown [1946] VicLawRp 59; [1947] VLR 113; Greenway v McKay [1911] HCA 25; (1911) 12 CLR 310, 318 (Barton J); [1911] HCA 25; In the Estate of Coe [2013] NSWSC 968 ('Coe'). The English Court of Chancery had jurisdiction to appoint a person as administrator ad litem if the person was willing so to act: Dean & Chapter of Ely v Gayford [1853] EngR 332; (1853) 51 ER 896; (1853) 16 Beav 561.

[175] Section 6 provides that the Court has jurisdiction to grant administration of the estate of any deceased person who has left real or personal property in Victoria.

Section 67 provides as follows:

The practice of the Court in its probate jurisdiction shall except where otherwise expressly provided in this or any other Act or by Rules of Court for the time being in force be regulated so far as the circumstances of the case will admit by the practice of the Court in its ecclesiastical jurisdiction in force previously to the first day of January One thousand eight hundred and seventy-three.

Section 69 provides that nothing in pt 1 shall 'derogate from the powers of the Court which exist independently of this Act'.

See also r 5.02 of the Supreme Court (Administration and Probate) Rules 2023, which provides as follows:

An application for a grant of representation under peculiar circumstances not expressly referred to in these Rules shall, with any necessary modification, be made on grounds and in circumstances and on materials that have been previously acted on by the Court.

[176] See, eg, Mataska v Browne [2013] VSC 62 (McMillan J); Casey v Giderson [2023] VSC 472 (Gray J); Whitty v Talia (2023) 72 VR 1, 3 [7] (McLeish, Kennedy and Walker JJA); [2023] VSCA 246 (recording the appointment of an administrator ad litem by McMillan J).

[177] See, in particular, Coe [2013] NSWSC 968, [8]-[27] (Young AJ). See also Re Kordos; Kordos v Kordos [2024] VSCA 84 (Niall and Lyons JJA); Re Emmins; Shannon v Shannon [2019] VSC 605, [34]-[37] (McMillan J).

[178] For that reason, it is not necessary for us to consider whether the inherent power was an alternative source of power that might have supported the judge's decision to appoint Kam as the representative of the estate. (And we did not hear argument on this issue.)