Petalas v Petalas

1 Has the plaintiff in this proceeding, Mark Petalas (Mark), committed contempt of court? What orders are appropriate at this stage of the proceeding?

2 Mark's occupation involves assisting injured workers with workers' compensation claims. In recent years he has suffered poor health. However, his mental acuity appears to be adequate for him to have understood financial details and at least basic legal concepts such as the obligation to be accurate about facts.

3 Mark and Andrew Petalas (Andrew) are brothers. Their mother, Irene Petalas (the deceased), died on 27 August 2024.

4 Mark, who is the elder brother, then made an affidavit on 8 November 2024 and, through a law firm (Andrew Simpson Legal), commenced this proceeding on 11 November 2024 seeking a grant of administration of the deceased's estate based on the assertion that she had died intestate.

5 In his affidavit of 8 November 2024, Mark affirmed that he had made careful enquiry and search but was unable to find any will of the deceased. This was incorrect. The deceased left a will dated 17 July 1989. The will provided for both brothers to be executors and left the estate to be distributed evenly between them.

6 The proceeding was not brought to the attention of his brother Andrew at the time, and Andrew was in ignorance of it for some time.

7 In spite of what Mark affirmed in his affidavit dated 8 November 2024, Mark knew about his mother's will. He had dealings with it as recently as 2009. In 2009, Mark and Andrew had provided the original will to a law firm (Rockman & Rockman) and received a letter back from the law firm confirming receipt. The confirmation letter was later put into evidence by Andrew. Mark did not put on any responding evidence. Mark did not, for example, deny knowledge of the letter or the will. Further, in each of his three appearances before me, Mark's response has been to express animosity towards Andrew for perceived slights, and blames Andrew for not coming to him sooner to obtain his share of their mother's estate.

8 I am amply satisfied that from November 2024 onward, Mark was determined to control the administration of the deceased's estate on his own and did not so much as care whether the basis on which he sought to do so was true and correct. His affidavit of 8 November 2024 was untrue and he had no basis to think that it was true.

9 Misled by the contents of Mark's affidavit dated 8 November 2024, the Court granted Mark letters of administration on intestacy on 11 November 2024.

10 Also, in his affidavit dated 8 November 2024, Mark undertook to the Court, amongst other things, to well and truly collect and administer the estate according to law, and if required by the Court to make or cause to be made and filed in the Court a true and just account of the administration of the estate.

11 Also, as an annexure to the 8 November 2024 affidavit, Mark set out an inventory of the estate, which itemised the personal estate of the deceased on her death as follows: State Trustees Ltd Invest Diversified Fund $101,842.67, Other State Trustees Ltd Cash Common Fund $26,585.24, Unitised Holding, Investment Platform, Asgard Open eWRAP investment account ending 3846 $322,860.99, and personal belongings and funeral death benefit $8700. The total gross value of the estate was given as $459,988.90.

12 Between the grant of letters of administration to Mark on 11 November 2024 and the date of the final hearing of the matter on 4 February 2026, I am satisfied from the evidence as a whole that there were at least some dealings by Mark with assets from the deceased's estate on various occasions. It is not possible to be sure that Mark has, even now, revealed them all. I return to this issue and its implications later in these reasons.

13 Rockman & Rockman's practice was in due course acquired by Rodda Legal. Andrew eventually learned of the grant of letters of administration to Mark on false grounds of the deceased's intestacy in the following way. On 31 March 2025, Gavan Rodda of Rodda Legal telephoned Mark and was told by Mark something to the effect that there was no need for anything to be done because he, Mark, was administering the estate. Mark would not give his address or precise information about what he was doing. Mr Rodda sought to obtain information from Mark about this but to no avail. He later made searches and obtained information about the grant to Mark. Mr Rodda's many other attempts to communicate with Mark throughout the matter, including attempts to have Mark cease what he was doing, were essentially ignored by Mark.

14 On 27 May 2025, Andrew filed a summons in this proceeding applying for an order requiring a true and just account of Mark's administration of the estate in Form 3‑6AA, revocation of the grant and for the costs of the proceeding to be paid by Mark on an indemnity basis. The summons was made returnable before Lorenz JR on 27 June 2025.

15 In the meantime, Mr Rodda was able to communicate about the matter, at least at some level, with Andrew Simpson of Andrew Simpson Legal, who had represented Mark in obtaining the grant. Mr Simpson made appropriate concessions about the need to have the grant revoked, conveying instructions that Mark had misunderstood the legal situation regarding wills in seeking a grant of letters of administration on intestacy.

16 On 27 June 2025, by consent, the summons was adjourned on the papers to 5 September 2025 in the expectation that Mr Rodda and Mr Simpson would be able to discuss the matter and perhaps resolve it.

17 Mr Rodda attempted on several occasions to obtain reliable information about dealings with estate assets by Mark from Mr Simpson. Mr Simpson was able to provide certain information, but it did not contain adequate particulars. On 8 July 2025, Mr Simpson served a notice of ceasing to act, giving a last known address and an email address for Mark. Using the email address, Mr Rodda then attempted to communicate with Mark without response.

18 At the next return date on 5 September 2025, there was no appearance by Mark. The judicial registrar ordered Mark to give a true and just account of the deceased's estate by completing Form 3-6AA and verifying the completed form by affidavit (the September Order). The matter was adjourned to 17 October 2025. The September Order included as follows:

2. By 4 pm on 19 September 2025, the plaintiff file and serve a true and just account in Form 3-6AA of the Supreme Court (Administration and Probate) Rules 2023 of the administration of the estate, verified by affidavit containing:

(a) full particulars of receipts, disbursements, all assets and liabilities (including assets and liabilities not known at the date of the application for probate or administration); and

(b) particulars of distribution of all assets.

19 The September Order was not indorsed with a penal notice under r 66.10 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules). By consequence, in any later contempt proceeding, imprisonment would not be an option as punishment for a proved contempt, although a fine would be.

20 By order 1 made on 5 September 2025, the judicial registrar ordered Andrew to forthwith personally serve an authenticated copy of the September Order on Mark.

21 The September Order was personally served on Mark on 9 September 2025.

22 Rodda Legal also wrote to Mark on 17 September 2025 explaining the requirements of the September Order.

23 On 17 September 2025, Mark sent an email to Mr Rodda referring to the September Order, stating that he was not represented, and claiming that he was 'unable to download the appropriate form 3-6AA'. The email stated that Mark was providing 'the information as requested' and went on to criticise Andrew, referring to various and extraneous matters pre-dating Mark's dealings with the assets of the estate. The 'information as requested' appears to have been a reference to the email attachment, which was a purported 'account summary' of an unidentified account, with the appearance of a screenshot, titled 'Estate Irene Petalas' and showing 'total credits' of '466,466.79'. This document was of no real probative value and providing it certainly did not amount to substantive compliance with the September Order.

24 By 6 October 2025, after the deadline for compliance (19 September 2025) set in the September Order, Mark had not made, filed or served a completed Form 3-6AA. On that date, Andrew filed a summons seeking to compel Mark to do so. By summons filed 6 October 2025, Andrew applied for an order that Mark be punished for contempt for wilfully not complying with the September Order and an order that he pay the costs for the application on an indemnity basis (Contempt Summons).

25 This was a reasonable and proper step for Andrew to take. If Andrew had pressed for determination of the revocation application without first obtaining Mark's true and complete account of his administration, the resumption of the administration of the estate would have been beset with risks of uncertainty. In my view, there was no other reasonable option.

26 The Contempt Summons was not served personally but was provided to Mark by email.

27 I conducted a hearing on the first return of the Contempt Summons on 17 October 2025, which was limited to being a directions hearing and was not the substantive hearing of the summons. At the hearing on 17 October 2025, I explained to Mark (for the first of what was to be three times) the need to comply with the September Order. From what was said at the hearing, there was no doubt that Mark had received the Contempt Summons, although it was not clear whether Mark had paid any real attention to it. I explained the Contempt Summons to him. Out of abundance caution, I made orders regularising the way in which the Contempt Summons had been brought to his attention by making a substituted service order, at the same time indicating in that order that service of the September Order would be taken to have effect from 17 October 2025. My decision to give only prospective effect to the substituted service order was done out of abundant caution, given the seriousness of the Contempt Summons.

28 At the hearing on 17 October 2025, amongst other things, Mark told me that the money from the deceased's estate had been deposited to him, and he had put it in a trust account, where it remained:

HIS HONOUR: So you say that - you've said what precisely - what's been done with the money?

MR PETALAS: In basic terms, sir, is - yeah, the money from estate trustees and the other areas where the financial institutions were deposited to myself and that's where - that's where it lies. I put them in a trust account waiting for my brother to come to me with his bank details.

29 As I will explain in a moment, the statement to me 'that's where it lies' was shown from subsequent evidence in the proceeding to be an untrue statement. As was made clear by a bank account statement later adduced in evidence, by way of two payments on 23 and 24 June 2025, Mark had in fact transferred $166,695.89 to an ANZ bank account in his partner's name. Mr Donald later submitted to me that Mark must have been aware of these transfers when he made his statement to me on 17 October 2025, and so his statement that 'that's where it lies' was untrue. I accept this submission. Mark made that statement to me knowing it to be untrue, with respect to the amount of $166,695.89.

30 Also at the hearing on 17 October 2025, there was an exchange between me and Mark as follows about his obligation to provide an account of his administration:

MR PETALAS: I'm sort of lost about the account. What account?

HIS HONOUR: Well, it's an account of your administration. You say you obtained a grant of administration of your mother's estate in November last year.

MR PETALAS: Yes.

HIS HONOUR: And under the power that the court's grant of letters of administration gave you, you probably had all sorts of communications ... I'm not privy to them, but you probably communicated with financial institutions of various kinds and obtained transfers of money from accounts that were held in your mother's name.

MR PETALAS: Yes.

HIS HONOUR: Yes. So an account is spelling out all of the material steps you took, if you got a transfer from a financial institution on a particular date, using that authority, letters of administration of your mother's estate, you have to say what date a transfer occurred, how much it was, who it was from and where it went.

MR PETALAS: By a bank statement you mean?

HIS HONOUR: Yes, but if you look at the prescribed form, if you just go onto the internet, you'll be able to find form 3-6AA, Administration Account, which is an attachment to the Supreme Court Rules, and you'll see there's - it's in about five or six parts, five parts. Part A is called a corpus account and that shows all the receipts of the money you get in as administrator, any disbursements that you make, giving the dates and the details, not just the amounts, but it says particulars. You've got to say who it was from and where it - - -

MR PETALAS: So this will be - yeah, I understand what you're saying, but it's going to be time consuming.

HIS HONOUR: Yes, it usually takes a few days, but it shouldn't take much longer than that, because you can work it out from bank statements and possibly from emails ...

31 From what Mark said during the hearing on 17 October 2025, and from Mr Rodda's affidavit evidence before me, it was clear that Mark had received all relevant court documents shortly before the hearing via emails on 15 and 16 October 2025 from Andrew's solicitors, Rodda Legal. It was also clear that he had failed to respond to emails from Rodda Legal over the last month or so.

32 After establishing that Mark's email was in current use by him, I decided I would make the substituted service order I have already mentioned. I ordered that the validation of service of the Contempt Summons and supporting affidavits had prospective effect from 17 October 2025.

33 As already noted, Mark claimed in his email to Mr Rodda of 17 September 2025 to have had difficulty downloading Form 3-6AA. Out of abundant caution, I indicated to counsel for Andrew that Mr Rodda should send a copy of the form to Mark, as well as re-serving by email two earlier affidavits that had previously been sent by Mr Rodda to Mark by email, to ensure that Mark had ready access to them. After the hearing on 17 October 2025, I made an order noting this expectation in 'Other Matters'. My orders on that day included the following orders:

1. The service of the applicant's summons filed 6 October 2025 and the affidavit of Gavan John Rodda dated 6 October 2025 on the plaintiff by emails dated 15 and 16 October 2025 sent to the email address compassist@bigpond.com is taken to comply with the requirement of r 6.02 of the Rules, with effect from 17 October 2025.

2. From the date of this order, pursuant to r 6.10 of the Rules, service of any documents on the plaintiff may be effected by sending such documents to the email address compassist@bigpond.com, and any such documents will be taken to have been served at the time they are sent by email.

34 I directed a timetable for further affidavits. Andrew's application to have Mark punished for contempt complies with the applicable rule of court, r 75.06 of the Rules.

35 The remainder of my findings of fact in this matter, relating to events after 17 October 2025, are set out in a later section of these reasons - 'Analysis and Conclusions'.

Contempt Summons - general principles and approach

36 The nature of the contempt alleged by the Contempt Summons is contempt constituted by wilful non-compliance with the September Order.

37 The general principles governing the application to punish Mark for a contempt of this kind were summarised by the Court of Appeal in Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors [2014] VSCA 261 (Grocon), especially at [135]-[140] (Ashley, Redlich and Weinberg JJA); and, among other cases, by judges of the Court in Hera Project Pty Ltd v Bisognin [2019] VSC 483 (Hera) especially at [67] (Champion J) and Koulouris v Haidaris (No 3) [2020] VSC 240 (Koulouris) especially at [41] (Connock J). The following five elements must be established beyond reasonable doubt to prove that a person has committed such a contempt:

(a) an order was made by the court;[1]

(b) the terms of the order are 'clear and capable of compliance'[2] or 'clear unambiguous and capable of compliance';[3]

(c) the order was served on the person (or excused in the circumstances, or service was dispensed with pursuant to the rules of the court);[4]

(d) the person had knowledge of the terms of the order;[5] and

(e) the person breached the terms of the order[6] by act or omission.[7]

38 As to the person's state of mind in breaching the terms of the order, it has been said that it is sufficient to establish the contempt that the relevant acts or omissions were intentional and likely to interfere with the administration of justice.[8] In other words, it may be sufficient that the acts or omissions of the person were deliberate without an intention to disobey being established. However, the Court of Appeal in Grocon noted that the public interest requires that 'any disobedience more than casual, accidental or unintentional must at least be regarded as wilful'.[9]

39 In my view, taking a prudent and conservative approach, it is necessary for me to be satisfied beyond reasonable doubt that Mark's failure to comply with the September Order was 'wilful' in order for me to be satisfied that he is guilty of the alleged contempt. The Contempt Summons expressly recognises this, alleging that the contempt arises from Mark wilfully not complying with the September Order.

40 Contempt may be proved by summary civil procedure, under ord 75 of the Rules, such as the Contempt Summons, provided the summons sets out the allegation with particularity.[10] As the Contempt Summons alleges a 'wilful' non-compliance, this provides another reason why it would be prudent for me to take the approach that I must be satisfied beyond reasonable doubt that Mark's relevant acts and omissions constitute 'wilful' non-compliance or disobedience, before finding the allegation of contempt is established.

41 I am satisfied that the first four elements of the contempt alleged in the Contempt Summons are made out beyond reasonable doubt. Further, I do not think that at any later stage any suggestion to the contrary was made by Mark. It was clear that these four elements were made by reference to the evidence and events up to the 17 October 2025 directions hearing.

42 The real question is whether I am satisfied beyond reasonable doubt that Mark's non‑compliance with the September Order was 'wilful' at any time:

(a) between 19 September and 17 October 2025; or

(b) following 17 October 2025.

43 At the end of the directions hearing on 17 October 2025, in effect I gave Mark a further opportunity of complying with the September Order. By directing Mr Rodda to send Mark the form, I did my best to ensure Mark would have the form, and of course this meant he would not be able to use any asserted inability to download the form as an excuse for non-compliance. My intention was to leave no room for doubt that Mark would now be able to comply with the September Order.

44 Following the 17 October 2025 directions hearing, Mr Rodda immediately sent Mark a Form 3-6AA.

45 For two weeks, there was no filing by Mark. Then, on 31 October 2025, he filed and served an affidavit affirmed by him on the same date, bearing details in the jurat indicating that it had been witnessed by a solicitor (Tanya Oogathoo) from a legal practice, Galea & Faustin Solicitors. At the front of the affidavit, however, the affidavit did not state that it had been prepared by that legal practice and there was no indication that that legal practice had gone on record as Mark's solicitors in the proceeding.

46 Mark's affidavit dated 31 October 2025 contained some information about his dealings with estate assets, and annexed some copies of selected bank account statements. It was these bank account statements that showed (as noted above) that Mark had transferred over $166,000 from the bank account for the deceased's estate to his partner's bank account in June 2025. The affidavit stated 'From my mother's estate, I received $333,993.68 from Asgard and a sum of $126,473.11 from State Trustees.' It annexed a Bank of Melbourne bank account statement 'displaying the deposit of the funds received from both Asgard and State Trustees', showing that these deposits appear to have occurred on 31 January 2025 from State Trustees and perhaps on 14 March 2025 for the sum attributed in the affidavit to Asgard, although the word 'Asgard' does not appear in the bank account statement. The affidavit went on to state that Andrew's 50% share of the Asgard deposit 'is being held in my partner's ANZ account' and that his 50% share of the Estate Trustees deposit remained in the estate bank account, followed by a statement that '$63,236.55' remained available for withdrawal.

47 The estate bank account statement was only annexed up to 3 June 2025. It showed several withdrawals that appeared to be for Mark's use. In effect, it appeared he was treating the account as if it were for his personal use.

48 Mark did not annex a completed Form 3-6AA and his affidavit did not explain this omission, or refer to the form in any way.

49 Andrew filed a further affidavit of Mr Rodda, made and filed on 7 November 2025, responding to various aspects of Mark's affidavit of 31 October 2025 and drawing attention to the transfers to his partner's account in June 2025.

50 The affidavit also indicated that Mark had now transferred to his brother an amount of $229,994.45.

51 That amount was half of the value of the estate as estimated in the inventory annexed to Mark's original 8 November 2024 affidavit.

52 Putting aside the potential for differences between what the values in the inventory in November 2024 and what was actually received by Mark as administrator of the estate after that date, the fact that he had now transferred $229,994.45 to Andrew raised the possibility that there would be no further utility in pressing for the revocation of the letters of administration that had been granted to Mark. If the estate is already fully distributed, revoking that grant and appointing the brothers jointly as executors would simply be a further waste of time and costs.

53 On 23 December 2025, Mr Rodda wrote to Mark complaining that he had still not filed the Form 3-6AA required by the September Order, and indicating that the Contempt Summons would be pressed. A further affidavit of Mr Rodda was made and filed on 3 February 2026 providing updated information about the matter prior to the return date for the Contempt Summons, 4 February 2026.

54 On 4 February 2026, I heard the Contempt Summons. In my view, Andrew was acting reasonably in pressing the summons. A properly completed Form 3-6AA remained an essential step, because it would provide a proper basis for an informed decision by Andrew on whether to proceed to have Mark's falsely obtained letters of administration on intestacy revoked.

55 Counsel for Andrew, Mr Donald, made detailed submissions that it appeared beyond reasonable doubt that all five elements of the allegation of contempt were established and that the omission of Mark to make, file and serve the required Form 3-6AA was wilful. I then heard submissions from Mark. He opposed the contention that his non‑compliance was wilful. He told the Court that he had been advised by Galea & Faustin Solicitors that, because his 31 October 2025 affidavit was providing bank account statements containing the relevant information, he did not need to provide the Form 3-6AA.

56 After hearing these submissions, I allowed Mark to verify his submissions by giving oral evidence, which was to the same effect. Mark was then cross-examined by counsel for Andrew. Under cross-examination Mark gave evidence that he had provided documents to Galea & Faustin Solicitors, including the September Order. He said that Galea & Faustin Solicitors advised him that he did not need to file the Form 3-6AA.

57 Mr Donald submitted that Mark was an unreliable witness and that any apparently self-serving evidence, such as his testimony about being advised that he did not need to file the Form 3-6AA, should not be accepted without corroboration.

59 However, I resolved to seek information from Galea & Faustin Solicitors as to the accuracy of the evidence Mark had given before making a final decision as to whether Mark had committed contempt of court. I had a lingering uncertainty as to whether it was beyond reasonable doubt that his disobedience of the September Order was and had continued in the period after 17 October 2025 to be wilful disobedience. I was concerned by the possibility that Mark had been confused by something said to him by the solicitors who had assisted him in preparing and making his 31 October 2025 affidavit, and that this might mean his disobedience in the period after 17 October was not wilful.

60 I again made it very clear to Mark that he was required by the September Order to now provide and verify a completed Form 3-6AA (despite whatever the solicitors had said to him), and that he was still in breach of that order. I also said an affidavit verifying the completed order was required. On this issue, he said it was difficult and expensive to get an affidavit made and witnessed. I again explained to him what needed to be included in the form. Amongst other things, I said:

... it seems that in the period since late 2024, up to sometime late last year, you did receive from various organisations, probably estate trustees, maybe some banks, money in your mother's estate. That all has to go in detail with the dates that you received the assets in question. Most of it seems to have been cash. That all has to go into part A corpus account. And you need to say when you received it and how much, and then give full particulars, which means, say, what account it was received into. ...

...

And it needs to be absolutely 100 per cent accurate and true and complete.

61 I explained in brief terms how the completed form could be verified by a basic affidavit. I told him he could have it witnessed at the court registry counter.

62 The mechanism I decided upon to seek the response of Galea & Faustin Solicitors as to what Mark had told me, and my expectation of what Mark would do after the hearing on 4 February 2025 in at last completing the form, is recorded in the following recitals of the order I made on that day:

D. The plaintiff gave oral evidence at the hearing to the effect that he was advised by Patricia Galea and Tanya Oogathoo of Galea and Faustin Solicitors that he did not need to file a copy of Form 3-6AA of the Supreme Court (Administration and Probate) Rules 2023 (Administration Account Form) in spite of paragraph 2 of the Order of Judicial Registrar Lorenz made 5 September 2025 (September Order).

E. The Court directed the solicitors for the applicant to email Galea and Faustin Solicitors requesting Patricia Galea's and Tanya Oogathoo's response to the evidence given to the plaintiff summarised in recital D above by email if they choose, and further noting that instead of making any such response by email they have liberty to apply to the Court if they choose in relation to the Court's request, provided they do so by email on notice to the applicant (by his solicitors Rodda Legal) and Mark Petalas (at compassist@bigpond.com).

F. For the purposes of making any application they see fit, the Court dispenses with the need for any summons by Patricia Galea and Tanya Oogathoo.

G. The Court expects that the plaintiff will by 4:00pm on 11 February 2026 prepare, file and serve an Administration Account Form relating to his administration of the estate_,_ verified by affidavit, in belated compliance with the September Order.

63 The next day, Mark did, finally, make and verify a Form 3-6AA. I will have more to say about that document shortly.

64 On 5 February 2026, Mr Rodda wrote to Galea & Faustin Solicitors as follows:

This email is being sent at the direction of The Honourable Justice Gray (His Honour) with respect to proceeding S PRB 2024 23194 in which our office acts for the applicant, Mr Andrew Petalas.

At the hearing before His Honour on 4 February 2026, Mr Mark Petalas (the plaintiff/respondent in the proceeding) gave evidence that Patricia Galea and Tanya Oogathoo of Galea & Faustin Solicitors were appraised, were informed, and were provided with a copy of the Court's order made by Judicial Registrar Lorenz on 5 September 2025, a copy of which is attached to this email (the September Order). Mr Mark Petalas gave further evidence that Ms Galea and Ms Oogathoo assisted him in the preparation of an affidavit dated 31 October 2025 in this proceeding, a copy of which is also attached.

Mr Mark Petalas gave further evidence that in connection with the preparation of the affidavit dated 31 October 2025, that on 3 occasions, one or both of Ms Galea and Ms Oogathoo were asked by Mr Mark Petalas whether he needed to complete the Form 3-6AA of the Supreme Court (Administration and Probate) Rules 2023 (Administration Account Form) referred to in the September Order. Mr Mark Petalas gave evidence that on each such occasion he was informed by one or both of Ms Galea and Ms Oogathoo that because bank statements were being exhibited to his affidavit dated 31 October 2025, he did not need to complete the Administration Account Form in spite of paragraph 2 of the September Order.

His Honour has ordered our office to email Ms Galea and Ms Oogathoo requesting their responses to the evidence given by Mr Mark Peta las summarised in this email, if they choose. His Honour has directed that any such response may be provided by return email addressed to Gavan Rodda of our office ... and that response will be provided to the Court. His Honour further indicated that instead of making any such response by email, either or both of Ms Galea or Ms Oogathoo have liberty to apply to the Court if they choose to do so in relation to the Court's request, provided they do so by email on notice to our office ... and Mr Mark Petalas .... For the purposes of making any application they see fit, the Court dispenses with the need for any summons by Ms Galea and Ms Oogathoo.

65 The solicitors' response on 18 February 2026 was as follows (emphasis added):

We refer to your email dated 5 February 2026, sent at the direction of The Honourable Justice Gray, regarding the evidence given by Mr Mark Petalas in proceeding S PRB 2024 23194.

We wish to clarify the scope of our engagement and address the matters raised as follows:

Scope of Engagement/ Retainer terms

Our firm, Galea & Faustin Solicitors, was engaged by Mr Mark Petalas solely for the purpose of assisting him in the preparation of his affidavit dated 31 October 2025. Our retainer with Mr Petalas is expressly limited to this task. At no stage were we instructed, nor did we undertake, to provide advice or representation in relation to compliance with any court orders beyond the preparation of the affidavit.

Advice Regarding Form 3-6AA

We acknowledge that, in our email to Mr Petalas dated 31 October 2025, we advised upon his request, that he was not required to file Form 3-6AA. This advice was based solely on the court order made by Justice Gray on 17 October 2025, which was the only order provided to our firm at the time Mr Petalas sought our advice regarding his obligations in respect to Form 3‑6AA. Our understanding, based on that order at "OTHER MATTERS" at point B, was that the obligation to serve Form 3-6AA rested with the Applicant, Mr Andrew Petalas. As mentioned above our involvement remained solely focused on preparation of Mr Mark Petalas' affidavit in response and as affirmed by him on 31 October 2025. We submit that our advice was given in good faith and was not intended to suggest that Mr Petalas was exempt from complying with any direction of the Court. At all times, we have maintained that Mr Petalas must comply with all court orders and directions, and we did not advise him to disregard or contravene any other order.

We trust this clarifies our position. Should the Court require any further information or documentation regarding the scope of our engagement, we are willing to provide the relevant portions of our retainer.

66 During the hearing on 25 February 2026, I noted the reference in this response to an email of 31 October 2025 between Galea & Faustin Solicitors and Mark. Just before the end of the hearing, I allowed Mark to access relevant emails and tender them.[11] It is worthwhile going through them in detail:

Dear Mark,

I hope this email finds you well.

Would you be able to attend the office this afternoon at 1:00 PM to sign your affidavit and go through Form 3.6AA?

Further, could you please confirm your best contact number at your earliest convenience.

Should you have any questions, please do not hesitate to contact me.

Hi Tanya, yes I can attend at 1-00pm.

I have attached a copy of the email and link that I received from the Honourable Justice , that the documents needs to be emailed to today.

Would it be possible once the documents have been signed that on behalf of myself, could you please email these completed documents directly to the Court, as I have other appointments that I need to attend to today. For peace of mind I would just like to know that this will be completed, to relieve the stress.

(c) The attachments to Mark's email did not include the September Order, only my order made on 17 October 2025.

(d) At 11:32am, Ms Oogathoo wrote back as follows:

We confirm your appointment at the office today at 1pm. You should have received a calendar invitation via email.

I have reviewed the court order attached to your email. You are the plaintiff in these proceedings, and Mr Andrew Petalas is the applicant. Accordingly, you are not required to file Form 3.6AA.

This form should have been served on you by email, along with the affidavits of Mr Andrew Petalas Mr Gavan John Rodda.

I will speak with Patricia in relation to your request for us to email the court on your behalf and will confirm shortly whether we are able to assist you with this.

We look forward to meeting with you soon.

67 These late exhibits, and Galea & Faustin Solicitors' response email to Mr Rodda on 18 February 2026, provide corroboration of the essential point Mark asserted - it is indeed true that Galea & Faustin Solicitors advised him that he did not need to file the Form 3-6AA. However, this was nothing to do with the fact that he was providing bank statements, and even more significantly, it was because he had failed to brief them with the September Order.

68 Mr Donald submitted, very accurately and fairly, that the incorrect advice provided by Galea & Faustin Solicitors had come about because Mark had not provided them with the September Order. He had only provided them with the order made on 17 October 2025, leading them to incorrectly suppose that the Court had ordered Andrew to complete the Form 3-6AA, not Mark. Mr Donald pointed out, again correctly, that on 4 February 2026 Mark had said in his evidence to me that he had given the September Order to Galea & Faustin Solicitors, and this was false. I accept that Mark's evidence that he provided the September Order to Galea & Faustin Solicitors was false. His own tendered exhibits show that he only provided the order made 17 October 2025 to them, not the September Order.

69 All of Mr Donald's above submissions are accepted. The advice Galea & Faustin gave that Mark need not complete the form was incorrect, but through no fault of their own. Mark had not briefed them with the critical order, the September Order. And yet I cannot rule out the possibility that Mark did not deliberately engineer the incorrect advice from Galea & Faustin Solicitors, and that he believed he could rely on it.

70 My impression from the emails on the morning of 31 October 2025 is that Galea & Faustin Solicitors volunteered the advice that it was unnecessary for Mark to complete the Form 3-6AA. The two exhibits belatedly tendered by Mark show that early in the day on 31 October 2025, when confirming his appointment with Galea & Faustin Solicitors for later that day, both he and Ms Oogathoo expected that he would be completing the Form 3-6AA at the conference later that day. In Mark's email, he did not ask for any advice on that topic. It is true that he forwarded an email enclosing the order of 17 October 2025 and not the September Order. However, I am not satisfied beyond reasonable doubt that he appreciated the implications this had in undermining the advice he then received back from the solicitors. He may not have appreciated that Ms Oogathoo's advice not to complete the Form 3-6AA was given on a mistaken basis.

71 I refer again to the Form 3-6AA Mark provided on 5 February 2026. At the hearing on 25 February 2026, Mr Donald demonstrated that Mark's completion of the form left much to be desired. Its defects and errors were methodically set out in a letter from Mr Rodda to Mark dated 6 February 2026, which is unnecessary to set out here. The completed form was affected by at least two very obvious and material errors, the date at which Mark said he received assets of the estate (given as 23 March 2024, which predated his administration and is obviously wrong) and his attributing of the entire amount of the total value of the estate as estimated in the November 2024 inventory ($459,988.90) as having been transferred by State Trustees on that day. Neither of these assertions could be true. This casts doubt over the entire document. At the hearing, Mark accepted or at least said nothing to resist the proposition that the form was erroneous in these ways. The completed form does not therefore meet the description (in the September Order) of the true and just account Mark was and is required to give.

72 I suppose it could be said that, by making and verifying this defective document very soon after the last hearing, Mark had at least attempted to comply with the September Order, and so his continuing disobedience is not wilful. Mr Donald did not accept this. It was submitted that I should find that Mark is in contempt because of the defects in the form.

73 Clearly, as a matter of objective fact, Mark has not yet complied with the September Order. The defective form does not comply. It is clear that he must again complete a Form 3-6AA, and this time he must do so with care and attention to detail. As I previously told Mark, it must be 100% accurate, and it must be a complete account of all his transactions involving estate assets.

74 So much is clear. The question remains, however, should I be satisfied (beyond reasonable doubt) in light of the serious errors in the Form 3-6AA dated 5 February 2026 that Mark's continued non-compliance with the September Order after the 4 February 2026 hearing has been wilful?

75 I decline to make such a finding on the exacting standard of proof that applies. I am not satisfied that Mark's completion of the form in a defective manner was wilful 'beyond reasonable doubt'.

76 If the requisite standard of proof was merely the balance of probabilities, the outcome would be different. On the balance of probabilities, given how I impressed upon Mark that the form had to be accurate and complete on previous occasions, it is more likely than not that his preparation of an error-filled form was deliberate or at least done without caring whether it was accurate or not.

77 As I explain shortly, that is a matter that must affect my assessment of how the discretion as to costs is to be exercised in this case, but it has no bearing on my conclusion as to whether Mark has yet committed contempt of court.

78 In short, by the slimmest imaginable margin, I am not satisfied beyond reasonable doubt that Mark's disobedience of the September Order was or is 'wilful'. I harbour some doubt as to that element of the allegation against him for the following reasons:

(a) between 19 September 2025 and 17 October 2025, his disobedience may not have been wilful because (as he asserted) perhaps he was unable to download the relevant form - although inherently unlikely, this was not disproved;

(b) between 17 October 2025 and 31 October 2025, his disobedience may not have been wilful because perhaps for this period he was preparing the relevant information, with the assistance of Galea & Faustin Solicitors, and was attempting to comply, culminating in his preparation of the affidavit of 31 October 2025 and Galea & Faustin Solicitors' incorrect advice to him that he did not need to prepare the form;

(c) from 31 October 2025 to 4 February 2026, his disobedience may not have been wilful because perhaps he was labouring under the misapprehension created by the advice given to him by Galea & Faustin Solicitors that he need not make and provide the Form 3-6AA; and

(d) finally, from 5 February to the hearing on 25 February 2026, his disobedience may not have been wilful because perhaps the errors in the Form 3-6AA were inadvertent and not wilful.

79 For these reasons, by a very slim margin, I find myself unsatisfied beyond reasonable doubt that Mark has committed contempt of court by wilfully failing to comply with the September Order, to date.

80 But let there be no further possibility of doubt about what Mark must now do.

81 Mark must now complete a fresh Form 3-6AA and do so with great care and complete accuracy. He must verify it by affidavit. It is strongly to be hoped that he will re-retain solicitors, such as one of the legal practices he has previously used in this matter (Andrew Simpson Legal, or Galea & Faustin Solicitors) in doing so. But whether he retains lawyers or not, he must comply with the September Order. For abundant clarity, I will now remake the September Order, and I will do so in a form indorsed with a penal notice. That means that if Mark is in future found to be in contempt of the new order, as well as being exposed to fines, he will face the possibility of imprisonment.

82 I now turn to Andrew's application for an indemnity costs order against Mark.

83 Although I have reached a conclusion on contempt in favour of Mark, I do not characterise the outcome of the proceeding as a successful outcome for Mark in the usual sense. He has only escaped a finding of contempt by the slimmest imaginable margin, and on the basis of very belatedly adduced evidence, extracted from him as a result of inquiries directed to him and others by the Court. Andrew's conduct of the proceeding has at all times been reasonable. As I mentioned earlier in these reasons, Mark's conduct has left Andrew with no effective alternative other than to pursue the Contempt Summons.

84 Mark's conduct has been the cause of all costs in the matter, from the commencement of the proceeding in November 2024 to its most recent step, the hearing on 25 February 2026.

85 Andrew was correct to press the Contempt Summons all the way to the final hearing, and had no real choice other than to do so. He could not have foreseen the bizarre twist provided by the incorrect advice from Galea & Faustin Solicitors, incorrect advice that was brought about by Mark providing them with incomplete information about the case. The relevant circumstances in which that incorrect advice were provided were not disclosed by Mark until the last stages of the final hearing on 25 February 2026.

86 I am satisfied that, in the exercise of my discretion under s 24(1) of the Supreme Court Act 1986, I should order that Mark pay Andrew's costs of and incidental to the proceeding to date. Mark is not entitled to recourse to the estate for these costs or any other costs in the proceeding. He must pay them from his own money.

87 On what basis should I order Mark to pay Andrew's costs? Andrew applies for costs on an indemnity basis. In Ugly Tribe v Sikola [2001] VSC 189, [7] and [8], Harper J said relevantly (references omitted):

In seeking costs on an indemnity basis, the first defendant is asking the Court to depart from its usual course: ... Special circumstances must be present to justify such a departure: ... These include:

...

(iii) Conduct which causes loss of time to the Court and to other parties: ...

(iv) The commencement or continuation of proceedings for an ulterior motive: ...

...

(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: ...

(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: ...

The categories of special circumstances are not closed: ... The cases must not, therefore, be read 'in an endeavour to establish a set of inflexible guidelines which should thereafter be determinative of the manner in which the Court's discretion is to be exercised [for this] would be to fetter the Court's discretion': ....

88 There is no doubt that this is a case that merits an award of costs on an indemnity basis. Mark's untrue evidence to the Court that he had searched for and not found a will of the deceased was the primary cause of all costs incurred in this proceeding. He should never have been appointed administrator on intestacy, and only obtained that appointment through a false affirmation that he could not find and did not know of a will made by the deceased. He was motivated in commencing the proceeding by the ulterior motive of wishing to control the administration of the estate to the exclusion of his brother, Andrew. Throughout the course of the matter, Mark has acted unreasonably and obstructively in response to Mr Rodda's efforts to learn what Mark had done during his administration of the estate. He has unreasonably resisted completing the Form 3-6AA. I think it likely that this has been deliberate. In particular with respect to his resistance in providing an account, but also in his conduct of the proceeding from its inception onward, Mark has wasted the Court's time and caused wasted time and costs incurred by Andrew. In my view, Mark must pay Andrew's costs of the proceeding to date on an indemnity basis.

[4] Hera [67(c)]. This is not mentioned as a separate requirement in Grocon but in any event was established here.

[10] Grocon [132], [135], [139].

[11] Exhibits 1 and 2, emails and attachments passing between Mark Petalas and Galea and Faustin on the morning of 31 October 2025.