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[2023] VSC 20
mixed. The defendant was removed as co-executor and the plaintiff continued as sole executor; partial distribution was ordered by consent, while final orders on the financial claims and commission, and costs,...
The court found that the defendant had not engaged reliably with her responsibilities as co-executor and removed her so the estate could be completed. It treated the defendant's earlier occupation of the family property as tolerated while purchase negotiations continued, but found that consent had been withdrawn by a letter in July 2019. Occupation rent was therefore payable after a reasonable time to leave, except while a court order permitted occupation. The defendant was also responsible for utilities used while she occupied the property and for costs of dealing with belongings she left behind. The court divided possible capital gains tax equally through the estate, but allocated land tax to the defendant for the relevant period, with an exception for the occupation-rent period. It left negotiation legal fees as an estate expense, found no proof of property depreciation, and awarded the plaintiff a 3.5 per cent executor's commission.
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2 cited instruments linked from this judgment.
Jortikka v Haukka concerned the administration of a relatively simple estate that became protracted because the deceased's two daughters, who were both executors and equal residuary beneficiaries, disagreed about the deceased's house. The will appointed Anneli Jortikka and Jasmina Haukka as joint executors. It gave Haukka the contents of the house and the deceased's motor vehicle, and divided the residue equally between the sisters [6]–[7].
The house was the estate's principal asset. Haukka had used it as a base and kept belongings there before the deceased died. After his death on 26 August 2017, she continued to use it. The sisters discussed Haukka buying the house from the estate, but their negotiations did not produce a completed sale. Offers and counteroffers continued over many months, and the terms changed. Jortikka eventually required Haukka to vacate and remove her belongings in a letter dated 2 July 2019 [20]–[22].
The disagreement broadened into a dispute about whether Haukka had delayed administration, whether she should pay occupation rent and property expenses, how tax liabilities should be allocated, and whether Jortikka should receive executor's commission. The house was eventually sold at public auction on 18 March 2021 for $1,170,000 [7]. Haukka left the property on 7 December 2020, after a court order required her to vacate by 30 October 2020. The bulk of her furniture and possessions remained behind, and Jortikka and her husband undertook work to prepare the property for sale [23].
At trial on 21 November 2022, Daly AsJ ordered Haukka's removal as executor and Jortikka's continuation as sole executor. The reasons also addressed the financial claims and commission. The judgment records that draft orders and the question of costs were to be dealt with after the parties had considered the reasons [5], [79].
The removal decision rested on the way Haukka's conduct affected the administration, rather than a definitive finding about her motive. Section 34(1)(c) of the Administration and Probate Act 1958 (Vic) allows removal where an executor is unfit or incapable. The judge referred to authorities recognising that unfitness can include neglect of duty, such as unwarranted delay, failure to communicate, and failure to account [39]–[42].
The court found a sustained pattern of delayed or missing responses to requests for instructions, changes in position during negotiations, and failure to take steps needed to progress the estate. The administration had not been finalised more than five years after the death. The judge accepted that Haukka may have been busy with work and travel, but considered those explanations did not alter the practical effect of her failure to engage [46]–[47]. Nor did the fact that the estate was close to completion prevent removal. The remaining work included communicating with revenue authorities, and the judge lacked confidence that Haukka would provide instructions promptly [43]–[50].
The occupation-rent claim required a more limited analysis. The judge did not treat all post-death occupation as wrongful. Haukka had used the house as a base for years, and the status quo continued after the death while the sisters negotiated a possible sale to her. Jortikka had access to the property and tolerated that arrangement. The court therefore treated the earlier period as occupation with implied consent or acquiescence, despite the plaintiff's requests at various times for rent and outgoings [58]–[60].
The change came with the 2 July 2019 letter. It made clear that Jortikka no longer consented to Haukka remaining at the house. The judge allowed 60 days as a reasonable period to vacate, using the usual notice period for a landlord selling a rental property as a reference point. The court awarded occupation rent at $480 per week from 1 September 2019, paused it during the period in which an order permitted Haukka to occupy, and resumed it after that permission ended [61]–[62]. The fact that Jortikka sometimes visited the house did not displace the estate's claim because those visits did not disturb Haukka's occupation [62].
The court distinguished expenses arising from occupation from costs associated with ownership. Haukka was the sole user of gas, electricity and water while she occupied the house, so the judge considered those usage costs should be reimbursed. The estate's expenditure on removing and storing Haukka's belongings was for her benefit and was charged against her share. The judge did not make her responsible for ownership outgoings for the entire period of occupation [64]–[65].
Tax allocation turned on causation, timing and whether delay benefited the estate. The plaintiff argued that Haukka should bear any capital gains tax because the property was sold after the relevant two-year period. The judge noted that Jortikka had acquiesced in continuing negotiations beyond the point at which a sale within that period was realistic. The estate also may have benefited from the later sale price, and the court was not satisfied that Haukka alone should bear the tax [67]–[68]. Land tax was different. The judge found that if Haukka had vacated after the July 2019 demand, the property could have been sold before the three-year exemption ended. The post-notice delay was therefore treated as causing the land-tax exposure, subject to the period for which occupation rent was payable [69]–[70].
For the commission claim, the court considered both routine administrative responsibilities and work not captured in financial terms. Jortikka had monitored and maintained the property, undertaken substantial preparation work, and dealt with the stress of delay and litigation. The court awarded 3.5 per cent, describing it as comparatively generous but justified by the circumstances [73]–[78].
The judgment applied existing statutory and case-law principles rather than announcing a new statutory test. Before this decision, s 34(1)(c) provided the relevant power to remove an executor who was unfit or incapable. The judgment's account of the authorities explains that unfitness is not confined to formal disqualifications such as bankruptcy or criminal conviction. It may also arise from neglect or breach of an executor's duties [39]–[42].
The judgment reinforces a practical focus on the consequences of conduct for the estate and beneficiaries. At [47], the judge said the practical effect of Haukka's inattention was the same whether it arose from a wish to acquire the property on favourable terms or from a more benign explanation. This is an application of the existing approach to the facts, not a separate finding that motive is never relevant. The judgment also makes clear that an estate being close to completion is not necessarily a reason to leave an executor in office. Remaining work can still require timely cooperation [43]–[50].
For occupation rent, the court drew on the principle that mesne profits are ordinarily measured by reasonable rental value, as discussed in the judgment through Maher v Kuperholz and Lollis v Loulatzis [55]–[56]. Its contribution is fact-specific: occupation that had been tolerated during negotiations was treated differently from occupation after consent was expressly withdrawn. The court also considered a later order that permitted occupation for a defined period [58]–[62].
The tax discussion likewise applies, rather than replaces, the rules referred to in the judgment. It records that the estate property had an exemption period for capital gains tax and a three-year period for land tax, with possible extension of the land-tax period by the Commissioner [66] and footnote 15. The judge's allocation depended on the evidence about the parties' respective contributions to delay and the possible gain to the estate [67]–[70]. The decision should not be read as establishing that one beneficiary generally bears tax liabilities whenever they occupied estate property.
For commission, s 65 sets a ceiling of five per cent and authorises commission that is just and reasonable for pains and troubles [74]. The judgment applied a multi-factor summary from Re will and estate of Macleod, including work, responsibility, duration, estate size, professional assistance, conflict, and delay [76]. The award of 3.5 per cent reflects the court's evaluation of Jortikka's particular work and circumstances, not a standard rate for executors.
At [45]–[47], the judge found that Haukka's conduct had unduly prolonged administration, regardless of whether her motive was self-interest or the pressure of work and travel. In plain English, the court assessed the effect of her conduct on the estate rather than requiring proof of a particular motive.
At [49]–[50], the judge rejected the argument that removal was unnecessary because little remained to do. The remaining work involved obtaining instructions and dealing with revenue authorities. In practical terms, even final stages of administration can require a cooperative executor.
At [60]–[62], the judge separated tolerated occupation from occupation after consent was withdrawn. The 2 July letter was the key turning point. The court treated 60 days as a reasonable time to leave, then assessed rent at the appraised weekly market rate for the relevant periods.
At [68]–[70], the judge explained why capital gains tax and land tax were treated differently. For capital gains tax, the plaintiff's participation in continuing negotiations and the estate's possible benefit from the later sale mattered. For land tax, the judge attributed the relevant delay after the demand to vacate to Haukka. The distinction depended on the particular chronology and evidence.
At [77]–[78], the court explained the commission award by reference to the work Jortikka did, especially preparing the property for sale, as well as the stress and administrative burden created by delay and litigation. The 3.5 per cent figure was an assessment under s 65, not an automatic entitlement based on the estate's value.
The removal reasoning may be relevant where an executor's conduct repeatedly obstructs administration: for example, persistent failure to respond to requests for instructions, inability to progress decisions, prolonged delay, or failure to cooperate with the other executor or estate professionals. The judgment indicates that the court can consider the practical consequences for the estate and beneficiaries, and that little remaining work does not itself rule out removal [45]–[50].
The occupation-rent reasoning may be relevant where a beneficiary or executor occupies estate property and the evidence shows a clear change from tolerated occupation to occupation without consent. The timing and clarity of communications, the occupant's actual use, any access by others, and any court orders allowing occupation are all important features of the analysis in this case [58]–[62].
The expense analysis may be useful where a claim distinguishes personal use costs from property-owner costs. Here, direct utility use was treated separately from rates and insurance, while removal and storage costs were attributed to the person whose belongings were left behind [63]–[65].
The tax analysis may be relevant where a delay in disposing of estate property creates possible tax exposure and the parties dispute responsibility. The judgment shows the significance of identifying who caused each part of the delay and whether the estate also benefited from the later sale [67]–[70]. The decision does not establish a general allocation formula independent of those facts.
The commission reasoning may be relevant when an executor seeks compensation for both administrative work and non-financial burdens. The judgment considered substantial physical work on the property, ongoing monitoring, responsibility, anxiety and litigation, while also recognising the role of professional advisers [76]–[78].
The supplied judgment is dated 3 February 2023 and contains no account of later judicial treatment of Jortikka v Haukka. On this material alone, it is not possible to say whether later courts have followed, distinguished, or otherwise treated the decision.
The authorities discussed by Daly AsJ are earlier authorities that informed the reasoning in this case. The judgment says that Dimos v Skaftouros was applied to the scope of unfitness under s 34(1)(c) [42]. It refers to Monty Financial Services Ltd v Delmo for examples of neglect of duty [41], and to Sampson v Charleton and Richardson v Johnson concerning the relevance of an estate nearing completion [43]. For mesne profits, it discusses Maher v Kuperholz, Lollis v Loulatzis, Re Vlahiotis and Byrnes v Kendle [55]–[57]. For commission, it relies on the factors summarised in Re will and estate of Macleod [76]. Those references explain the authorities used by this court; they do not provide evidence of how later courts have treated this judgment.
The judgment does not determine whether the estate ultimately qualified for reinstatement or extension of tax exemptions. It says that the estate's applications to revenue authorities remained to be pursued and that the judge could not evaluate their prospects [9], [50]. Nor does the decision quantify any final tax assessment: the tax liabilities were still unascertained at the time of the reasons [9].
The judgment records that draft orders and the question of costs remained outstanding [79]. The supplied text therefore does not establish the final form of every order or the eventual costs outcome.
The reasons also do not provide a general rule for deciding when negotiations over an estate asset become unreasonable, or when a co-executor's continued occupation becomes wrongful. The decision turns on the particular course of negotiations, the history of the sisters' arrangement, the 2 July 2019 letter, and the later court order [58]–[62].
Finally, the decision does not establish a fixed rate for executor's commission, occupation rent, or responsibility for tax across other estates. The commission was evaluated against the work and burdens proved in this case; the occupation rent was tied to the market appraisal and identified periods; and the tax allocation depended on the court's findings about causation and benefit [53], [61], [67]–[78].
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ADMINISTRATION AND PROBATE - Application under s 34 of the Administration and Probate Act 1958 (Vic) for removal of executor - Whether defendant unfit to continue as executor - Paramount consideration being the welfare of the beneficiaries - Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584 referred to and applied - Protection of beneficiaries of estate - Unresponsive and cavalier approach of defendant to finalising the administration of the estate - Defendant removed and plaintiff to remain as executor.
ADMINISTRATION AND PROBATE - Claim for mesne profits for defendant's occupation of estate property - Defendant and plaintiff are the daughters of the deceased and co-executors - Plaintiff and defendant beneficiaries of the residuary estate in equal shares - Protracted negotiations between the parties for the defendant's purchase of the property failed - Defendant occupied estate property prior to the death of the deceased and status quo maintained - Maher v Kuperholz [2022] VSC 224 and Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 referred to - Occupation rent to be paid by defendant for period she was in occupation without the consent and acquiescence of the plaintiff.
ADMINISTRATION AND PROBATE - Application under s 65 of the Administration and Probate Act 1958 (Vic) - Executor's commission - Pains and troubles - Where executor applying was legally represented for the entire administration of the estate - Defendant's failure to make arrangements for the monitoring and maintenance of the estate property and failure to engage with correspondence regarding the administration of the estate - Plaintiff undertook substantial work to clear out and refurbish estate property - Executor's commission of 3.5% awarded.
ADMINSTRATION AND PROBATE - Application for the defendant's share in the residuary estate be adjusted to account to the estate for costs incurred by reason of the delay in the administration of the estate - Claim that defendant's share in the estate to be adjusted to account for utilities and other outgoings, legal expenses and for storage and removal costs of defendant's chattels from the estate's property - Defendant's share in residuary estate to be adjusted to account for the removal costs of her belongings from the estate property and their storage and for utilities during her occupation of the estate property.
ADMINISTRATION AND PROBATE - Claim for the defendant's share in the residuary estate to be adjusted to account for any capital gains tax or land tax assessed and for any depreciation in the value of the estate property by reason of the delay in the sale of the estate property - Where negotiations between the parties for the defendant's purchase of the property from the estate went beyond the two year exemption period for deceased estates for capital gains tax - Capital gains tax to be paid by the estate - No evidence as to depreciation in value of the property - Land tax to be paid from defendant's share of the estate.
1 These reasons concern an application by the plaintiff, Ms Anneli Jortikka ('Ms Jortikka'), a co-executor of the estate of Maunu Tuomas Haukka ('estate'), to, among other things, remove the defendant, Ms Jasmina Haukka ('Ms Haukka'), Ms Jortikka's sister, as the co-executor of the estate pursuant to s 34 of the Administration and Probate Act 1958 (Vic) ('Act') ('removal application'). The removal application was made on the basis of Ms Jortikka's contention that Ms Haukka is unfit to remain as an executor of the estate, given her failure to fulfil her duty to cooperate to ensure the efficient and timely administration of the estate.
2 Ms Jortikka has also made an application for orders that Ms Haukka account to the estate in respect of the following claims and expenses ('financial claims'):
(a) mesne profits (also known as occupation rent) for Ms Haukka's alleged occupation of the estate property at Greensborough ('property');
(b) payments for utilities and other outgoings for the property;
(c) amounts paid by the estate for the removal and storage of Ms Haukka's goods left by her at the property after her departure from the property;
(d) any land tax and/or capital gains tax assessed against the property;
(e) legal fees and expenses incurred by the estate by reason of Ms Haukka's alleged occupation of the property; and
(f) any depreciation in the value of the property during the defendant's occupation of the property.
3 The financial claims are based upon Ms Haukka's alleged occupation of the property, and her alleged refusal to allow the property to be sold, between the date of the death of the deceased (26 August 2017) and 7 December 2020 (when Ms Jortikka took possession of the property). Ms Jortikka contends that the financial claims should be met from Ms Haukka's share of the remaining assets of the estate.
4 Ms Jortikka has also made an application for executor's commission to compensate her for her pains and troubles in the administration of the estate.
5 On 21 November 2022, the day the proceeding was listed for trial, I made orders removing Ms Haukka as the co-executor of the estate. Orders were also made (by consent) for a partial distribution of the assets of the estate to Ms Jortikka and Ms Haukka (who are also the only beneficiaries of the estate). During the course of the hearing, I indicated that I would provide my reasons for granting the removal application in the course of determining the outcome of the financial claims and Ms Jortikka's claim for executor's commission. My reasons follow.
6 Mr Maunu Tuomas Haukka ('deceased') died on 26 August 2017 leaving a will dated 24 June 1997 ('will'). The will appointed the deceased's daughters, Ms Jortikka and Ms Haukka, as joint executors of the estate. Probate of the will was granted on 11 January 2018.
7 The terms of the will gifted the contents of the property and the deceased's motor vehicle to Ms Haukka. The residue of the estate, following the payment of liabilities and estate expenses, was gifted to Ms Jortikka and Ms Haukka in equal shares. The main asset of the estate was the property, which was sold on 18 March 2021 for $1,170,000.
8 This proceeding was commenced by Ms Jortikka on 29 April 2020 following disagreements between her and Ms Haukka in relation to Ms Haukka's ongoing occupation of and storage of her belongings at the property, and the expenses incurred by the estate in relation to the property. Ms Jortikka and Ms Haukka were also at odds during negotiations for Ms Haukka's proposed purchase of the property and regarding the sale of the property generally.
9 The administration of the estate is close to completion. As at 9 November 2022, $1,135,877.71 is held by the estate's solicitors in their trust account. However, no estate tax returns have been lodged, and no assessment for any capital gains tax and/or land tax payable pursuant to the property has been made, such that the estate may have further as yet unascertained liabilities. Prima facie, as the property was sold more than two years after the death of the deceased, the estate cannot benefit from the capital gains tax and land tax exemptions afforded to deceased estates. However, I anticipate the main outstanding task is to apply to the revenue authorities to reinstate the tax exempt status of the property. I am not in a position to evaluate the prospects of success of any such applications.
10 Orders were made in the proceeding on 19 May 2020 for the parties to participate in a mediation. This timeframe was extended by orders made on 13 April 2021, with later orders further extending the date for the completion of the mediation being made on 25 March 2022. Mediation between the parties has not occurred. Ms Jortikka submitted that this was due to Ms Haukka's failure to engage with her solicitors to arrange the mediation.
11 At trial, Ms Jortikka relied on three affidavits sworn by her on 21 April 2020, 14 July 2022, and 2 November 2022.
12 Given that the evidence in Ms Jortikka's affidavits was not contested by Ms Haukka, I do not propose to recount Ms Jortikka's evidence (which was extensive and detailed) in any great detail. A summary follows.
13 In her first affidavit filed on 21 April 2020, Ms Jortikka deposed as to what she says was Ms Haukka's unreasonable conduct in remaining in occupation of the property for over two years after the death of the deceased, requiring payment by the estate of the outgoings for the property, her failure to agree to sell the property in a timely fashion, and her delay in administering the estate generally.
(a) Ms Haukka's use of the property as a 'base' and storage facility while she has worked as a ski instructor in Australia and overseas both prior to and following the death of the deceased;
(b) the failed negotiations between her and Ms Haukka for Ms Haukka to purchase the property from the estate;
(c) the maintenance works done by Ms Jortikka and her husband on the property;
(d) the various valuations and approvals obtained with respect to the property;
(e) Ms Haukka's refusal to allow her access to all of the rooms in the house on the property, and Ms Haukka's demand that the estate pay all of the outgoings for the property;
(f) allegations made by Ms Haukka that Ms Jortikka had taken cash and goods belonging to her from the property, which Ms Jortikka denies;
(g) her demand on 9 August 2019 that Ms Haukka vacate the property and remove her possessions; and
(h) her receipt of rental appraisals for the property ranging between $480 and $500 per week.
15 In her affidavit sworn on 14 July 2020, Ms Jortikka deposed largely as to the unsuccessful efforts made by her solicitors to arrange mediation in May and June of 2020. This evidence may be of greater relevance to the question of costs in this proceeding rather than the determination of the removal application, the financial claims, and the claim for executor's commission.
16 In her affidavit sworn on 2 November 2022, shortly before the trial, Ms Jortikka deposed, in summary, as follows:
(a) as to the total amount of outgoings for the property paid by her and the estate;
(b) the tasks undertaken by her as the executor of the estate, including, among other things, details of the work undertaken by her and her husband to prepare the property for sale;
(c) details of the current financial position of the estate;
(d) expenses incurred by the estate in preparing the property for sale, including funds paid by the estate to her husband and other contractors for labour and materials; and
(e) she deposed as follows to the remaining matters required to be done in the administration of the estate:
No commonwealth taxation returns have been lodged for the estate. I have been advised and verily believe that the estate may need to pay taxation on the superannuation death benefit as a consequence of the receipt of the PortfolioOne Pension payout.
I have also been advised and verily believe that, as the property was the deceased's main residence as at the date of his death, that a capital gains tax exemption applies provided that the property was sold and settled within two years of date of death [sic]. As the property was sold outside of this period, capital gains tax will be payable. Given that the delay in the sale of the property was as a consequence of the actions of the defendant, I seek that the resultant capital gains tax liability and any accountings costs be adjusted against the defendant.
I have also been advised and verily believe that, as the property was sold over three years since the deceased's date of death, that the State Revenue Office should have been notified and land tax would have become payable on the land. I have been advised that the executors should notify the State Revenue Office that the property was not appropriately taxed and pay any outstanding taxation liability, including any penalties arising. As the delay in selling the property was due to the actions of the defendant, I seek that the resultant land tax liability and any penalties be adjusted against the defendant.
17 Ms Haukka's solicitor briefly cross-examined Ms Jortikka in relation to the period which Ms Haukka was said to have been in occupation of the property. Ms Jortikka gave evidence that Ms Haukka used the property as a "a base but her belongings occupied the property for the whole time". Ms Jortikka conceded that she was able to come and go from the property, and had access to the property throughout the period between the deceased's death and the sale of the property.
18 Ms Jortikka filed a court book, including her affidavits and exhibits, along with a voluminous bundle of documents, the total of which ran to more than 2,000 pages, although there was some duplication. These documents included correspondence, including Facebook messages and text messages between Ms Jortikka and/or her husband with Ms Haukka, between Ms Jortikka and her solicitors and the estate's solicitors, and between the estate's solicitors and Ms Jortikka and Ms Haukka. The court book also included invoices and receipts, numerous valuations and appraisals of the property, trust account statements, and photographs of the property, the house on the property, and goods and rubbish inside the house and outbuildings on the property found by Ms Jortikka after Ms Haukka vacated the property. The photographs also showed the property after extensive works were undertaken to clean and refurbish the property prior to the sale of the property. Having reviewed the documents in the court book carefully, I am satisfied that Mr Jortikka's record keeping with respect to the administration of the estate has been meticulous.
19 Ms Haukka did not file any affidavits or written submissions. However, her solicitor made oral submissions at the trial on 21 November 2022.
20 From the matters deposed to by Ms Jortikka in her affidavits, which were of course uncontested, the following chronology of the relevant events can be ascertained:
(a) the deceased died on 26 August 2017;
(b) on 16 October 2017 Ms Haukka obtained an appraisal from a real estate agent which valued the property at $900,000 to $990,000;
(c) on 29 November 2017 the executors obtained a report valuing the property at $900,000;
(d) probate of the deceased's will was granted on 11 January 2018;
(e) on 15 June 2018, Ms Jortikka obtained a further appraisal which valued the property at $850,000 to $930,000; and
(f) on 23 July 2018 the estate's solicitor informed Ms Jortikka that the six month period following the grant of probate had passed, and that it was now safe to distribute the estate.
21 From about July 2018, there were discussions and negotiations between the parties and the estate's solicitor about Ms Haukka purchasing the estate property. These discussions took place between July 2018 and August 2019 ('negotiation period'). Ms Jortikka deposed to the following offers and correspondence between the parties during the negotiation period:
(a) on 15 August 2018 Ms Haukka offered to purchase the property for $750,000;
(b) on 21 September 2018, Ms Haukka offered to purchase the property for $800,000;
(c) on 23 September 2018, Ms Haukka offered to purchase the property for $832,000;
(d) on 25 September 2018, Ms Jortikka became aware that Ms Haukka had listed the property for rent on Facebook without her knowledge;
(e) following receipt of a sworn valuation obtained by the estate on 10 October 2018, which valued the property at $925,000, Ms Haukka offered to purchase the property for $823,000;
(f) on 15 October 2018, Ms Jortikka requested that the property be sold on the open market as soon as possible;
(g) on 13 November 2018, Ms Jortikka requested that Ms Haukka begin paying rent for the property;
(h) on 29 November 2018, Ms Haukka obtained a valuation for the property, which valued the property at $790,000. Ms Haukka subsequently offered to purchase the property for $780,000. Ms Jortikka rejected that offer on 1 December 2018;
(i) on 6 December 2018, Ms Jortikka offered to sell the property to Ms Haukka for $900,000;
(j) on 13 December 2018, Ms Haukka offered to purchase the property for $700,000 and, later that day, told Ms Jortikka's husband that he did not have permission to enter the house on the property;
(k) on 29 December 2018, Ms Jortikka offered to sell the property to Ms Haukka for $857,500, being the midpoint between the valuations obtained by the estate and Ms Haukka;
(l) on 4 January 2019, Ms Haukka offered to purchase the property for $800,000. Ms Jortikka responded that she would accept $823,000;
(m) on 5 and 6 January 2019, through an exchange of messages on Facebook, Ms Haukka sent a message to Ms Jortikka stating "Sold at 800k". On the same day, Ms Jortikka sought clarification from Ms Haukka in relation to the settlement period, to which Ms Haukka did not respond. Ms Haukka also did not respond to Ms Jortikka's query as to whether Ms Haukka wanted the estate's solicitors to arrange the paperwork for the sale of the property to Ms Haukka for $800,000;
(n) on 9 January 2019, Ms Haukka messaged Ms Jortikka to confirm that she wanted to "check everything is ok in the house" and requested a statement of account for the estate be sent to her. Ms Jortikka agreed, and on 10 January 2019 sent a message to Ms Haukka confirming that she had requested the estate's solicitor to prepare the paperwork for the purchase of the property for $800,000 and that Ms Jortikka would hold off any court proceedings pending a "";
(i) a reduction of the sale price to $785,000;
(ii) the deletion of provisions relating to Ms Haukka being responsible for utilities; and
(iii) the deletion of provisions relating to the consequences of Ms Haukka failing to pay the sale price.
Ms Jortikka responded that any correspondence should now be directed to her solicitors; and
(z) on 9 August 2019 Ms Jortikka's solicitors wrote to Ms Haukka and stated, among other things, that:
(i) Ms Haukka was not authorised to place tenants in the property; and
(ii) Ms Haukka was required to vacate the property and remove her possessions.
22 Not long after the 2 July letter, the two year period following the death of the deceased (being 26 August 2019) ('grace period') expired. This date is relevant to the financial claims with respect to the estate's potential liability for capital gains tax. After that date, the following transpired:
(a) in September and October 2019, Ms Jortikka obtained appraisals which valued the property at $850,000 to $930,000, and indicated that a rental of $480 to $500 per week could be achieved for the property;
(b) on 23 November 2019 Ms Jortikka's solicitor wrote to Ms Haukka reiterating her demand that Ms Haukka vacate the property and remove her possessions, confirmed that Ms Haukka was not authorised to rent out the property, and that Ms Haukka should engage a gardener to maintain the property and pay all utility costs. The solicitor also requested Ms Haukka to provide details of her travel plans and/or details of a solicitor who could accept service of proceedings on her behalf;
(c) Ms Haukka was working in Japan between December 2019 and March 2020, such that effecting personal service on her would have been difficult, returning to the property on 23 March 2020; and
(d) this proceeding was issued on 4 May 2020.
23 Following the issue of this proceeding the following relevant events took place:
(a) on 19 May 2020 consent orders were made to jointly instruct a valuer to provide a valuation for the property. On 16 June 2020 a valuation report opined that the value of the property as at 26 August 2017 was $975,000, but had dropped to $900,000 as at 4 June 2020;
(b) there was correspondence between the solicitors in May and June 2020 regarding arrangements for mediation, but no mediation took place before Ms Haukka departed Melbourne for the Victorian ski season in late June 2020;
(c) on 14 July 2020 Ms Jortikka filed an affidavit seeking orders that Ms Haukka be removed as executor, that she vacate the property and remove her possessions, and the property be sold;
(d) on 26 August 2020, the three year period where the estate property remained exempt from land tax expired;
(e) on 10 September 2020 McMillan J made orders that Ms Haukka vacate the property and remove her possessions by 30 October 2020, and that Ms Jortikka be authorised to sell the property;
(f) notwithstanding the above, Ms Haukka did not vacate the property until 7 December 2020. The bulk of her furniture and other possessions were left at the property;
(g) between December 2020 and the sale of the property by public auction on 18 March 2021, Ms Jortikka and her husband sorted through and arranged for the storage or collection of Ms Haukka's goods, disposed of rubbish and other clutter at the property, and undertook repairs and maintenance of the property to prepare the property for sale; and
(h) following the sale of the property, as the parties could not agree upon, among other things, who should bear the costs associated with the property and removal of Ms Haukka's goods, the proceeding was listed for trial.
24 Ms Jortikka contended that Ms Haukka should be removed as the executor by reason of the "persistent failure by the defendant...to fulfil her fiduciary obligations as an executor of the estate" and a "failure [by the defendant] to respond to correspondence, and/or a continued tendency to agree to steps being taken to advance the estate administration followed by a failure to take the steps which had been agreed".
25 Ms Jortikka submitted that despite her attempts to finalise the administration of the estate, Ms Haukka's actions have rendered Ms Jortikka's role as executor "considerably, and unnecessarily, more onerous, and made her "pains and troubles"...significantly greater".
26 Ms Jortikka noted that Ms Haukka was in occupation of the property for more than three years following the death of the deceased, from 26 August 2017 until 7 December 2020. During this period, Ms Haukka did not pay rent, utilities, insurances, rates or maintenance costs with respect to the property, with all outgoings being paid by the estate.
27 Ms Jortikka submitted that whilst Ms Haukka responded to some messages and emails sent to her by the estate's solicitor, Ms Jortikka, and Ms Jortikka's solicitor, Ms Haukka was largely unresponsive throughout the negotiation period.
28 Ms Jortikka noted that the estate's solicitor warned Ms Haukka on 23 July 2018, 24 September 2018, 24 October 2018, 31 October 2018 and 9 November 2018 of, among other things, Ms Haukka's obligations as an executor of the estate, and that Ms Haukka's occupation of and storage of her belongings at the property, and her failure to meaningfully engage in negotiations to purchase the property was causing loss to the estate for the benefit of Ms Haukka personally, which was inconsistent with the fiduciary obligations of an executor.
29 Ms Jortikka has provided rental appraisals for the property obtained on 25 September 2019 and 16 October 2019, which estimated the market rent at $480 to $500 per week, in support of the estate's claim for mesne profits.
30 Ms Jortikka submitted that she was in no way using or benefitting from the property from the time of the deceased's death until the time it was sold, and that Ms Haukka's conduct during the negotiation period evidenced her lack of good faith.
31 Ms Jortikka submitted, in relation to the financial claims, that Ms Haukka's ongoing occupation of the property, and the delay in the sale of the property caused the estate to incur expenses which should be borne by Ms Haukka alone, including all utilities and other outgoings, removal and storage expenses, the legal expenses associated with the negotiations for the sale of the property, and any liability of the estate for capital gains tax and land tax. She submitted that where an executor has breached their fiduciary duty to an estate by preferring their own interests over the interests of the estate, the executor may be liable to the estate and/or the beneficiaries of the estate for any losses caused to the estate or gains accruing to the executor.
32 In relation to her claim for executor's commission, Ms Jortikka submitted that she has completed her duties as executor in the administration of the estate diligently, and her pains and trouble have included sorting through the deceased's belongings at the property, placing those chattels and belongings which Ms Haukka might need immediately in short term storage, placing other belongings in a shipping container for long term storage, delivering other belongings to Ms Haukka's friend, delivering the deceased's cash to a solicitors office, and that she undertook a great deal of work in preparing the property for sale in March 2021.
33 Ms Haukka opposed the application for her removal as executor, submitting that her limited response to correspondence was due to her considering this proceeding unnecessary, because this proceeding has put the estate to considerable and unnecessary expense.
34 Further, the Court should reject the application by Ms Jortikka for mesne profits, given that Ms Haukka did not exclusively occupy the property after the death of the deceased, and Ms Jortikka had unimpeded access to the property after the death of the deceased.
35 Ms Haukka submitted that neither party made efforts to lease the property, save that Ms Haukka allegedly advertised the property for rent on Facebook without seeking the consent of Ms Jortikka.
36 Ms Haukka submitted further that until at least 31 May 2019 the parties were in negotiations regarding Ms Haukka's purchase of the property from the estate, such that mesne profits should not be claimable for the negotiation period.
37 Ms Haukka submitted that the Court ought to be troubled by the amount of executor's commission sought by Ms Jortikka, given that:
(a) Ms Jortikka was represented by solicitors for the entire duration of the administration of the estate;
(b) Ms Jortikka's travel to and from her home in Sunbury to the property may have been an inconvenience but does not of itself constitute a major pain or trouble justifying an award of executor's commission; and
(c) the parties are beneficiaries as well as executors of the estate.
38 Ms Haukka submitted further that the financial claims should be paid by the estate and borne equally between the beneficiaries, including any capital gains tax or land tax assessed on the sale of the property, as both of the beneficiaries have benefited from the increase in the value of the property between the time that the property could have been sold (being late 2018) and the time it was actually sold in early 2021.
39 Section 34(1)(c) of the Act provides that the Court may remove an executor of an estate if that person is unfit to act as executor or is incapable of acting as executor.
40 As previously noted, at the trial of the proceeding on 21 November 2022 I made orders removing Ms Haukka as executor, and for Ms Jortikka to continue to act as sole executor of the estate.
41 The principles governing the exercise of the Court's discretion to remove an executor pursuant to s 34(1)(c) of the Act are conveniently summarised in the decision of Ashley J in Monty Financial Services Ltd and Anor v Delmo[1] to the effect that 'unfitness' for the purpose of s 34(1)(c) of the Act includes misconduct or neglect of duty in the administration of an estate such as:
... matters such as unwarranted delay in the administration of the estate, failure to communicate with beneficiaries, failure to account, and unreasonable delay in paying beneficiaries their entitlement ... I find it impossible to accept that serious dereliction of duty as an executor does not make that person unfit to hold the office. It cannot matter whether the dereliction is born of intent, of carelessness, or incompetence. In each case the actual or potential deleterious effect upon the estate and the beneficiaries is the same.[2]
42 In Dimos v Skaftouros,[3] the Court rejected the contention that 'unfitness' within the meaning of s 34(1)(c) was limited to cases of disqualification by reason of bankruptcy, conviction for felony, or related circumstances, and accepted that 'unfitness' could arise by reason of breach or neglect of duty.
the fact that the administration of the estate was close to an end [is] ... no barrier to acceding to [an] ... application that [the defendant] ... be removed as the executor of the estate.
...
the timing of the application is not determinative. In the current case, the fact that the administration of the estate is close to the end is in fact a relevant matter in favour of [the plaintiff][6]
44 During the hearing of this proceeding, I noted that "in some respects the fact that the estate is close to finalisation is sometimes a justification for removing any impediments to the finalisation [of the estate]."[7]
45 Having reviewed the materials in the court book prior to the trial, I accept Ms Jortikka's submissions regarding the failure of Ms Haukka to fulfil her duties as executor, concluded that Ms Haukka was unfit to remain as an executor of the estate, and that her immediate removal was in the best interests of the estate and the beneficiaries.
46 The correspondence between Ms Haukka and Ms Jortikka, and between Ms Haukka and the estate's solicitor in the court book evidences Ms Haukka's irresponsible and cavalier approach to her duties as executor, turning what should have been a straightforward administration of a simple estate into a protracted and complicated affair. More than five years has elapsed since the death of the deceased, and the administration of the estate has not been finalised.
47 As the authorities make clear, it does not really matter whether Ms Haukka's inattention to her duties as an executor was motivated by her desire to acquire the property on favourable terms, or to delay the sale of the property for her benefit, or whether there was a more benign explanation for her inattention, such as her being overwhelmed by her work commitments and travel arrangements. The practical effect is the same: Ms Haukka's failure to attend promptly (and sometimes not at all) to requests by the estate's solicitors for instructions, and her erratic conduct during the negotiation period has unduly prolonged the administration of the estate and has no doubt caused the estate to incur unnecessary legal costs. She was warned on numerous occasions by the estate's solicitor that her conduct was prejudicing the administration of the estate, but those warnings had no apparent effect. I accept that at times she had some communication difficulties, and that she was no doubt busy with travel and work. However, her persistent failure to engage with her responsibilities for a number of years is hardly explicable given that she lives and works mostly in Australia and Japan, which are hardly communications backwaters, and her work commitments do not consume the whole of each year.
48 Further, while Ms Haukka's ongoing occupation of the property is of more relevance to the determination of the financial claims, that ongoing occupation of the property was clearly for her convenience, particularly given that she stored many of her belongings there, the outgoings were paid by the estate, and Ms Jortikka and her husband were diligent about monitoring and maintaining the property, at some inconvenience to them. Ms Haukka was clearly in a position of conflict of interest, and she was told as such, bluntly, by the estate's solicitor. But the mere existence of a conflict of interest does not disqualify an executor. What matters is how they manage that conflict of interest. However, Ms Haukka's conduct during the negotiation period, and her refusal to vacate the property until a court order was made to that effect indicated that she simply does not appreciate the duties and responsibilities of an executor.
49 Ms Haukka's solicitor submitted that now that the property has been sold, and there is little left to do in the administration of the estate, there is no reason to assume that Ms Haukka would be other than cooperative in the administration of the estate. I do not share that confidence. In my view, past performance is an indicator of future performance, and Ms Haukka's approach to her duties as executor can be characterised, at best, as neglectful. Her approach to the proceeding also mirrored her approach to her executorial duties, such that there is an established pattern of behaviour which I expect will be difficult to change. If she refuses to engage with her own solicitor, how can it be expected that she will engage with the estate's solicitor, or her now estranged sister?
50 It is correct to say that there is relatively little to be done in finalising the administration of the estate. However, most of the work to be done will involve communicating and negotiating with the revenue authorities, which will involve the estate's solicitor making submissions to those authorities in support of reinstating the property's exemptions from land tax and capital gains tax, which no doubt needs to be progressed without any further delay, to maximise the prospects of success of those applications. Instructions will need to be sought by and provided to the estate's solicitor, and I have little confidence that Ms Haukka would provide those instructions in a timely manner. It was primarily for that reason that I determined that the removal application should be determined first, and prior to undertaking the detailed analysis required to evaluate and determine the financial claims and the claim for executor's commission.
51 Finally, I was fortified in my view that Ms Haukka should be removed by the evidence of the manner in which Ms Jortikka has conducted herself in vexing circumstances. I have no doubt that she will fulfil her remaining duties as executor efficiently, conscientiously and diligently, and in the best interests of both beneficiaries of the estate.
52 The financial claims can be disaggregated as follows:
(a) a claim for mesne profits, or occupation rent to be paid to the estate for Ms Haukka's alleged occupation of the property since the death of the deceased;
(b) alternative to (a) above, payment of the outgoings paid by the estate with respect to the property (being rates, utilities and other expenses);[8]
(c) a claim that the costs of the removal and storage of Ms Haukka's goods from the property be adjusted against Ms Haukka's share of the estate;
(d) a claim that Ms Haukka's beneficial entitlement in the estate be adjusted to account for any land tax and/or capital gains tax assessed against the property;
(e) a claim that Ms Haukka pay for legal fees and expenses incurred by the estate in respect of Ms Haukka's alleged occupation of the property; and
(f) a claim that Ms Haukka's beneficial entitlement in the estate be adjusted to account for any depreciation in the value of the property during Ms Haukka's alleged occupation of the property and due to the delays caused by Ms Haukka.
53 My conclusions with respect to the financial claims are as follows:
(a) Ms Haukka should pay occupation rent for the period from 1 September 2019 to 10 September 2020, and the period from 31 October 2020 to 7 December 2020 at the rate of $480.00 per week;
(b) Ms Haukka should pay the costs incurred by the estate for the removal and storage of the goods she left behind at the property on 7 December 2020;
(c) any liability of the estate for capital gains tax should be shared equally between the beneficiaries;
(d) any liability of the estate to pay land tax be borne by Ms Haukka, save for the land tax referable to the period for which Ms Haukka is liable to pay occupation rent;
(e) the legal fees and expenses incurred by the estate in respect of the failed negotiations for the purchase of the property by Ms Haukka should be borne equally between the beneficiaries;
(f) there is no evidence that the property depreciated in value between the date of the death of the deceased and the date the property was sold: indeed, the evidence is to the contrary; and
(g) for the avoidance of doubt, any payment to be made by Ms Haukka as a consequence of orders made to give effect to these reasons can be made by the executor taking these liabilities into account when making the final distribution to Ms Haukka upon the finalisation of the estate.
54 My reasons with respect to each of the financial claims follow.
Claim for mesne profits for Ms Haukka's occupation of the property
Damages awarded for trespass to land are sometimes described as "mesne" profits. The usual measure of such damages is constituted by the value of the market rent for the premises which the trespasser should have paid during the period of the trespasser's occupation of the premises. In order to prove an entitlement to such damages, it is not necessary for the plaintiff to establish that the property has been damaged, or that the plaintiff would have been able, or indeed willing, to lease the premises during the period of the trespass.
56 His Honour observed that a 'plaintiff is prima facie entitled to damages for the trespass calculated as the reasonable rental value of the premises during the relevant period of the trespass.'[11]
Accordingly, an executor who occupies estate property without paying rent and without taking steps to secure a rent-paying tenant is liable to pay an occupation rent unless, in doing so, he or she is acting in accordance with his or her duties as executor to seek to realise the estate for the best obtainable price.[14]
58 The difficulty with Ms Jortikka's claim that Ms Haukka pay occupation rent for the entire period that she occupied the property after the death of the deceased is that, at least until Ms Jortikka's solicitor sent the 2 July letter demanding that Ms Haukka vacate the property and consent to the sale of the property, Ms Haukka occupied the property with the implied consent of Ms Jortikka. At the very least, the position was ambiguous.
59 This is not a situation where an executor entered into occupation of estate property after the death of the deceased for their own benefit. Rather, after the death of the deceased, the status quo prevailed: that is, Ms Haukka continued to use the property as her Melbourne base between ski seasons and her travels to her residence in Cairns and elsewhere, as she had done for more than two decades. There is no suggestion that this arrangement was entered into otherwise than in agreement with the deceased. As well as owning the contents of the property by reason of the terms of the deceased's will (which, as suggested by Ms Haukka's solicitor, may have been a burden rather than a blessing), Ms Haukka kept a substantial amount of furniture and other possessions at the property.
60 Despite on occasion requesting that Ms Haukka pay for the utilities and other outgoings for the property, and later (from November 2018) requesting that Ms Haukka pay rent, Ms Jortikka took no serious steps to disturb the status quo until after the conclusion of the negotiation period, in the 2 July letter. That she refrained from doing so was understandable: while negotiations continued regarding the possible sale of the property to Ms Haukka, requiring Ms Haukka to vacate the property, which all seem to accept would have been a herculean task, would have been a pointless exercise if Ms Haukka was going to retain the property. That Ms Haukka may have been acting in bad faith during the negotiation period is somewhat beside the point: the reality of the situation is that Ms Jortikka was prepared to sell the property to Ms Haukka at what was no doubt an undervalue, and as such she acquiesced to Ms Haukka's occupation of the property, notwithstanding the estate's solicitor's warnings that Ms Haukka may have been in breach of her duties as executor by remaining in occupation of the property after the six month period of the grant of probate expired in July 2018.
61 However, the position changed after the end of the negotiation period and the delivery of the 2 July letter. The 2 July letter made it clear that Ms Haukka no longer had Ms Jortikka's consent to remain at the property, and should vacate the property with her possessions within a reasonable period of time. In my view, a reasonable period of time would have been 60 days from the date of the 2 July letter, being the usual notice period for tenants in Victoria where a landlord wishes to sell a rental property. Occupational rent should be payable by Ms Haukka from 1 September 2019, save for the period between 10 September 2020 and 30 October 2020, when Ms Haukka was permitted to occupy the property by reason of the 10 September orders, which were silent as to the question of rent.
62 I do not consider that the fact that Ms Jortikka occasionally visited the property and had access to the property when Ms Haukka was absent detracts from the estate's entitlement to occupation rent for the property for the period I have identified. Those visits did not disturb Ms Haukka's occupation of the property, and were necessary for the security and maintenance of the property. The implied consent (or acquiescence) of Ms Jortikka to Ms Haukka occupying the property (as she in fact did) was expressly and emphatically withdrawn by the 2 July letter.
Claim for expenses incurred by the estate due to Ms Haukka's occupation of the property
63 Ms Jortikka submitted that the estate incurred the following expenses on account of Ms Haukka's alleged occupation of the property until 7 December 2020:
(a) council rates of $6,140.80;
(b) gas, electricity and water usage of $2,106.55;
(c) insurance of $2,732.11; and
(d) storage and transport of Ms Haukka's belongings of $16,000.67.
64 As for the outgoings for the property, Ms Jortikka conceded that Ms Haukka should not be liable for outgoings payable as an incident of property ownership, such as rates and insurance, during the period in which Ms Haukka was liable to pay occupation rent. I agree, but in my view, she should not be liable to pay those outgoings for the entire period of occupation, largely for the reasons discussed in the context of Ms Jortikka's submissions with respect to capital gains tax. However, insofar as the outgoings are incidental to Ms Haukka's occupation of the property, as opposed to ownership, such as payments for utility bills, then Ms Haukka should reimburse the estate for those payments, given that Ms Haukka was the sole user of the gas, electricity and water connected to the property while she occupied the property.
65 Finally, there is no question in my mind that Ms Haukka should be liable to pay for the costs incurred by Ms Jortikka and/or the estate for the removal and storage of her goods at the property. While the evidence about the circumstances in which Ms Haukka vacated the property on 7 December 2020 is limited, it appears that Ms Haukka abandoned the vast bulk of her possessions at the property. Given the terms of the orders made by McMillan J on 10 September 2020, Ms Jortikka would have been within her rights to simply dispose of those possessions. Accordingly, those payments were made for the exclusive benefit of Ms Haukka, and should be adjusted against her share of the estate.
Claim for land tax and/or capital gains tax payable for the sale of the property
66 An inherited property which was the deceased's main residence and was not being used to produce income is exempt from capital gains tax if it is disposed of within the grace period. In some circumstances, the grace period may be extended. Similarly, an estate property is exempt from land tax if it was the principal residence of the deceased, and is sold within three years of the death of the deceased. [15]
67 Taking first the question of whether Ms Haukka should, in effect, indemnify the estate for any capital gains tax liability incurred by the estate with respect to the property, while it is arguable that Ms Haukka's conduct during the negotiation period caused the property to be sold after the grace period expired, the reality of the situation is that Ms Jortikka acquiesced in that delay, by permitting the negotiation period to continue beyond a time by which it became inevitable that the property would not be sold before the expiry of the grace period. To explain further, a period of four months elapsed between Ms Haukka vacating the property in December 2020 and the sale of the property in March 2021, during which period a substantial amount of work was done to prepare the property for sale. There is no reason to believe that work would have been carried out more quickly in 2018 than in 2021, given the state of the property was always rather dire, according to Ms Jortikka's evidence. Accordingly, in order for the property to be sold within the grace period (that is, by 26 August 2019), Ms Haukka would have needed to vacate the property by, at the latest, the end of April 2019, but the negotiations between the parties continued until the end of May 2019, and arguably beyond that date until the dispatch of the 2 July letter.
68 Furthermore, as noted by the solicitor for Ms Haukka, no capital gains tax is payable unless there has in fact been a capital gain. All of the evidence indicates that while the value of the property may have fallen between August 2017 and June 2020, the sale price as at March 2021 exceeded the estimated value as at 4 June 2020 by more than $200,000. Some of that gain may well have been attributable to the refurbishment works carried out prior to sale (the cost of which would be taken into account when calculating any capital gains tax liability of the estate if no exemption applies). To the extent that the increase in value was attributable to changing market conditions, then the estate has in fact benefited from the delay in the sale of the property. In those circumstances, it seems to me to be unfair to make Ms Haukka solely liable for any capital gains tax payable by the estate.
69 The position is somewhat different with respect to the estate's liability for land tax, in that the exemption is maintained for a three year period after the death of the deceased, that is, until 26 August 2020. If Ms Haukka had vacated the property on or about 1 September 2019, in accordance with the demand made in the 2 July letter, the property could have easily been sold before August 2020, such that any liability to pay land tax was directly caused by Ms Haukka's failure to vacate the property in response to the 2 July letter, and her entitlement to the estate should be adjusted accordingly, save for the land tax assessed for the period for which Ms Jortikka is obliged to pay occupation rent.
70 The difference in my approach to the issue of liability for capital gains tax and the issue of liability for land tax is based on the following matters:
(a) first, there is the issue of causation. As previously discussed, Ms Jortikka, possibly unwittingly, acquiesced in the delay in the sale of the property during the course of the negotiation period, which meant that the property could not realistically have been sold within the grace period. However, the position is different with respect to the estate's liability to pay land tax, as any delay in the sale of the property after, say, 1 September 2019, was caused solely by Ms Haukka's refusal to vacate the property; and
(b) secondly, there is a direct relationship between the estate's liability to pay capital gains tax and the increase in the value of the property over the period between 2018 and 2021. There is no such relationship between the liability to pay land tax and the value of the property, which will arise regardless of the value of the property. Only the quantum of the land tax payable will be referable to the value of the property, not the imposition of the liability in the first place.
Claim for legal expenses referable to the negotiation period
71 Ms Jortikka contends that the legal costs incurred by the estate and paid to the estate's solicitor which are solely referable to the negotiations regarding the purchase of the property by Ms Haukka should be assessed by the estate's solicitor and adjusted against Ms Haukka's share of the estate.
72 Having reviewed the correspondence during the negotiation period, and in particular the correspondence where Ms Haukka in effect reneged upon matters which had been previously agreed, I can understand why such a claim has been made. However, in order to make the orders sought by Ms Jortikka with respect to the legal expenses, I would have to be comfortably satisfied, given the nature and implications of the allegations made against Ms Haukka, that Ms Haukka was acting in bad faith during the entirety of the negotiation period, and never intended to purchase the property, but rather was simply stringing negotiations out in order to continue to stay in the property. While I accept that this proposition is arguable, I cannot be comfortably satisfied that Ms Haukka was acting deceptively, rather than irresponsibly, and that the entirety of the negotiations were a charade on her part. Accordingly, given that Ms Jortikka willingly entered into negotiations with Ms Haukka with respect to the sale of the property to her, and it is not possible to easily identify a date after which it could be said that Ms Haukka was not acting in good faith or was not in a position to purchase the property, the estate's solicitor's fees should be borne by the estate in their entirety.
73 Ms Jortikka's application was for an executor's commission of 3.5% of the value of the estate, which amounts to $55,121.86.
74 Section 65 of the Act provides:
Executors' etc. commission
(1) It shall be lawful for the Court to allow out of the assets of any deceased person to his executor administrator or trustee for the time being such commission or percentage not exceeding Five per centum for his pains and trouble as is just and reasonable.
In this section "executor" includes the executor of an executor becoming by representation the executor of the original estate.
(2) Despite subsection (1), the commission or percentage allowed by the Court in respect of a licensed trustee company must not exceed the commission or percentage that a licensed trustee company may charge under Chapter 5D of the Corporations Act.
75 The definition in Vance[16] of 'pains and troubles' is as follows:
The expressions 'pains' and 'trouble' have been defined in the New Zealand case of Re Allan McLean dec., 'pains' as responsibility, anxiety and worry, and 'trouble' - as covering the work done.'[17]
76 In the decision of Re will and estate of Macleod,[18] Ierodiaconou AsJ provided a useful summary of the factors to be considered in assessing if executor's commission should be awarded and, if so, in what sum:
(a) the work and judgment involved in the realisation of assets and earning income;
(b) the extent of administrative activities;
(c) the responsibility generally;
(d) the amount of work done not reflected in financial terms;
(e) how long the estate was administered;
(f) the size of the estate and its capacity to pay;
(g) the work of a non-professional character not undertaken by the applicant and performed by professionals; and
(h) executors' pains and troubles relative to the result.
Other factors may be added to this list:
(i) whether there has been any litigation, or other conflict, necessary to the administration of the estate; and
(j) whether there has been any delay in the administration of the estate - if so, 'such conduct may disentitle or reduce an executor's commission, such as no commission on certain assets after the date when distribution should have occurred.'[19]
77 In my view, Ms Jortikka should receive an executor's commission of 3.5 percent of the value of the estate. While I accept that this is at the higher end of the range, in practical terms, given that Ms Jortikka is entitled to a half share of the estate, she is in effect required to fund half of that amount, which, in my view, is a modest recompense for the pains and troubles Ms Jortikka has incurred in the administration of the estate. In particular:
(a) as Ms Haukka made no effective arrangements for the monitoring and maintenance of the property during her frequent and lengthy absences, Ms Jortikka was required to frequently attend the property over a period of more than three years;
(b) it appears from the evidence that Ms Jortikka alone bore the burden of the usual duties of an executor, albeit that they were not particularly onerous of themselves, and she did have the assistance of professional advisers;
(c) however, the delay in the sale of the property, and the conduct of Ms Haukka during the negotiation period and thereafter was no doubt frustrating and stressful;
(d) Ms Jortikka was forced to bring this proceeding to compel the sale of the property. While she has been represented by solicitors during the course of this proceeding, I do not need direct evidence in order to infer that the need to embark upon litigation to give effect to what should have been a simple and consensual decision by the executors would have caused Ms Jortikka anxiety and worry, as would have Ms Haukka's failure to engage in mediation or indeed engage with the proceeding generally;
(e) indeed, apart from the communications between them regarding the proposed sale of the property to Ms Haukka (which of themselves must have been frustrating on occasion by reason of Ms Haukka's failure to meaningfully engage with the estate's solicitor, and her frequent changes of position), most of the communications between Ms Haukka and Ms Jortikka (and her husband) over the course of the administration of the estate involved Ms Haukka complaining about Ms Jortikka and her husband attending and maintaining the property in her absence, and making what I suspect were unwarranted accusations against Ms Jortikka and her family regarding missing goods and alleged property damage; and
(f) most importantly, it is apparent from the (uncontested) evidence in the court book, including the 'before' and 'after' photographs of the property, and the diary notes prepared by Ms Jortikka, that Ms Jortikka did a phenomenal amount of work preparing the property for sale between December 2020 and March 2021, and that this work materially benefited the estate. While the better than expected price obtained for the property may, in part, have been attributable to property market trends, and some work was carried out by contractors (including Ms Jortikka's husband) and paid from the estate, the evidence shows that the property was very well presented for sale, and most or all of the credit for that goes to Ms Jortikka, given the state the property was in at the time Ms Haukka vacated the property.
78 Accordingly, I have no hesitation in awarding Ms Jortikka executor's commission at a comparatively generous rate.
79 Draft orders to give effect to these reasons will be circulated to the parties together with these reasons. Once the parties have had an opportunity to consider the draft orders and these reasons, I will hear further from the parties as to the final form of the orders and the question of the costs of this proceeding.
[6] Sampson v Charleton [2022] VSC 597, [102].
[8] Ms Jortikka conceded that if occupation rent was payable to the estate, then the estate should bear the expenses ordinarily borne by a landlord for the period for which occupation rent is payable. However, she submitted that Ms Haukka should pay all usage-based utility bills.
[10] [2007] VSC 547, [219].
[14] [2019] SASC 207, [44].
[15] See s 57(2)(a) of the Land Tax Act 2005 (Vic). Section 57(3) provides that the Commissioner for State Revenue may extend the period of the exemption conferred under s 57(1).
[16] See Re Stone (deceased): Patterson v Halliday [2003] VSC 298, [30] and Richards v Richards [2015] VSC 335, [24].
[17] Eric Vance, The Law and Practice in Victoria and an Examination of the Case Law in Australian and New Zealand relating to Executors Commission (The Law Book Company Ltd, 1st ed, 1969) 127.
[18] Re will and estate of Macleod [2017] VSC 67.
Jortikka
Haukka [2023] VSC 20
(2004) 9 VR 584
(2011) 243 CLR 253
The defendant was removed as co-executor and the plaintiff continued as sole executor; partial distribution was ordered by consent, while final orders on the financial claims and commission, and costs, remained to be settled.
(o) on 8 February 2019, the estate's solicitor emailed a draft Deed of Family Arrangement to the parties for review and comment;
(p) on 9 February 2019, Ms Jortikka messaged Ms Haukka on Facebook regarding the above email from the estate solicitor. Ms Haukka responded by requesting that all invoices relating to the property and the estate be sent to her by either Ms Jortikka or the estate solicitor;
(q) on 12 February 2019, the estate's solicitor asked Ms Haukka to advise if she had any comments on the draft Deed of Family Arrangement and whether she intended to purchase the property from the estate;
(r) on 20 February 2019, Ms Jortikka sent a message to Ms Haukka advising that she had sent the invoices via email and that Ms Haukka should respond to the estate solicitor regarding the draft Deed "immediately". Ms Haukka responded that she had been busy with work and would check the agreement when she had time;
(s) on 19 March 2019, Ms Haukka replied to the estate's solicitor regarding the draft Deed. In this email Ms Haukka noted that she was glad Ms Jortikka agreed to the price of $800,000 and that she had issues with her phone and was using a smaller capacity phone to review the invoices sent to her by Ms Jortikka and the draft Deed. Ms Haukka also queried several payments from the estate trust account and the omission of some of Ms Haukka's expenses in relation to the property from the estate trust account;
(t) in a further email on 5 April 2019, Ms Haukka communicated her preference to the estate's solicitor that the property be transferred to her in "late April, early May" when she returned from Japan;
(u) on 16 May 2019, during a Facebook message exchange between the parties, Ms Haukka stated that "the new sell/buy house price should be $700,000". Ms Jortikka rejected this offer;
(v) on 21 May 2019, the estate's solicitor provided a "simplified" draft Deed to the parties with a deadline of 30 May 2019 for Ms Haukka to sign;
(w) between 21 May 2019 and 5 June 2019, there were further messages exchanged between the parties regarding various matters, including the draft Deed, Ms Jortikka's access to the property, and the sale price for the property;
(x) on 2 July 2019, Ms Jortikka's solicitors sent a letter to Ms Haukka requesting Ms Haukka's consent to the sale of the property within seven days, and that she vacate the property and remove her goods within 21 days ('2 July letter'). The 2 July letter stated that Ms Jortikka's patience was at an end, and put Ms Haukka on notice that a response was required within seven days, failing which proceedings would be commenced in the Victorian Civil and Administrative Tribunal or the Supreme Court of Victoria to seek orders that Ms Haukka be removed as executor and that the property be sold. Ms Haukka responded on 7 July 2019 that she was having issues accessing the attachments to the 2 July letter and that as she was busy with work, she would be in contact in due course;
(y) between 16 July to 6 August 2019 the parties exchanged messages over Facebook. These messages included Ms Haukka advising Ms Jortikka that she wanted to place a tenant in the property and Ms Haukka providing an amended Deed of Family Arrangement that she had signed on 13 July 2019. The amended Deed contained significant amendments to the draft Deed, including: