Plaintiff v Defendant

COSTS - Where plaintiff seeks defendant pay costs on indemnity basis without indemnification from deceased's estate - Where defendant's failures are numerous and profound - Impropriety exception - Defendant to pay plaintiff's costs on indemnity basis - Costs to be paid personally by defendant without indemnification from estate - Banksia Securities Ltd v Insurance House Pty Ltd (Costs) [2020] VSC 234 - Hopkins v Edwards [2020] VSC 456.

1 Emmanuel Francis Aquilina died on 14 August 2024 leaving a will dated 29 March 2000 (the Will). By the Will, the deceased appointed his second wife, Teresita Aquilina (Teresita),[1] and Mercader Barristers and Solicitors as the executors of his estate. As Teresita predeceased the deceased, the executor of the estate is Fe Mercader, the sole principal of Mercader Barristers and Solicitors and the defendant in this proceeding. The defendant obtained a grant of probate of the Will on 14 January 2025.

2 On 23 July 2025, the deceased's granddaughter, Ivy Evelyn Nemler-Aquilina, who is a beneficiary under the Will, commenced this proceeding seeking the defendant's removal as executor of the deceased's estate and that she be appointed in her place as administrator of the deceased's estate with the Will annexed. I granted the application on 12 September 2025 and made various ancillary orders including appointing the plaintiff as administrator of the deceased's estate with the Will annexed. These are my reasons for granting that relief.

3 Under the Will, the deceased distributed his estate equally between Teresita and three of his children from his first marriage: David John Aquilina; Mark Robert Aquilina and Mary Ann Aquilina. Two of the beneficiaries predeceased the deceased: Teresita and Mark, whose only child is the plaintiff.[2] The Will provides that, if any of the beneficiaries predeceased the deceased, their share of the estate is to be divided equally between their children. Accordingly, the equal beneficiaries of the deceased's estate are the plaintiff, David and Mary Ann (the beneficiaries).[3]

4 For all practical purposes, the only asset of the estate is a property located at 32 Grant Street, Clifton Hill, Victoria (the Property). The Property was transferred into the defendant's name in her capacity as executor of the deceased's estate on 24 March 2025. She sold the Property on 28 June 2025 for $1,162,000.

5 On 23 July 2025, the plaintiff filed a summons seeking interlocutory injunctive relief restraining the defendant from disposing of or encumbering any asset of the deceased's estate and from taking any step in furtherance of a 'settlement agreement' dated 5 May 2025.

6 The settlement agreement is a deed of settlement agreement made on 5 May 2025 between the defendant as executor of the deceased's estate and Fe Lawa as executor or administrator of Teresita's estate. Amongst other things, it narrates that:

(a) the Property was the matrimonial home of the deceased and Teresita after they married in 1993 and that it had been in the sole name of the deceased throughout their marriage;

(b) on 16 May 2016, Teresita and Emmanuel made a binding financial agreement to divide their property equally (the Financial Agreement);

(c) on 21 May 2016, Teresita, with the consent of the deceased, lodged a caveat on the Property to protect her 50% interest; and

(d) Fe Lawa, as executor of Teresita's estate, had engaged solicitors to commence a claim against the deceased's estate for 50% of the Property.

7 The last mentioned point is confirmed by the contents of a letter dated 4 April 2025 sent by the solicitors for Fe Lawa to the defendant as executor of the deceased's estate. The letter recounts that Teresita's estate is in the process of preparing a 'resulting/constructive trust proceeding' in respect of the Property in which it would be alleged that the deceased's estate holds a 50% interest in the Property on trust for the benefit of Teresita's estate. The letter outlines that the interest in the Property asserted by Teresita's estate arises by virtue of the relationship between Teresita and the deceased and the express recording of their interests in the Property in the Financial Agreement.

8 Significantly, the settlement agreement records that Teresita is entitled to 40% of the Property, with the deceased having an entitlement to the remaining 60%. It provides for the sale of the Property and that that the defendant will pay the executor of Teresita's estate 40% of the net proceeds of sale, which payment is to be in full and final settlement of all claims that the executor of Teresita's estate may have against the deceased's estate.

9 The plaintiff succeeded in her application for interlocutory relief and on 25 July 2025 the Court relevantly made the following orders (the Orders):

...

1. The Defendant be enjoined from disposing of, encumbering or otherwise diminishing the value of any asset of the estate of Emmanuel Francis Aquilina, deceased, (including for any legal costs) without the prior written consent of the Plaintiff, which consent will not unreasonably be withheld.

2. The Defendant forthwith file on RedCrest and serve on the Plaintiff an affidavit exhibiting a copy of the 'Settlement Agreement' dated 5 May 2025, which is referred to in the Defendant's letter dated 7 July 2025.

3. The Defendant forthwith be enjoined from taking any step in furtherance of the aforementioned 'Settlement Agreement', without the prior written consent of the Plaintiff, which consent will not be unreasonably withheld.

4. Within 30 days, the Defendant pay the Plaintiff's costs of the Plaintiff's summons filed 24 July 2025, without indemnification from the estate of the deceased, and fixed in the amount of $8,335.20.

...

10 On about 28 June 2025, the defendant received the deposit paid by the purchasers of the Property, being an amount of $73,000. The contract for sale is to settle on 19 September 2025, at which time the purchasers are required to pay $1,036,800.

11 The plaintiff does not seek to prevent the sale of the Property, but has deposed that she has lost confidence in the defendant acting in good faith and in the best interests of the deceased's estate and the beneficiaries. She seeks the defendant's removal as executor before the settlement of the contract of sale.

12 For the following reasons, the plaintiff's loss of confidence in the capacity of the defendant to act in the best interests of the estate and its beneficiaries is entirely well-founded. The defendants conduct amply justifies her removal as executor of the deceased's estate.

13 Section 34(1)(c) of the Administration and Probate Act 1958 gives power to the Court to discharge or remove an executor or administrator of an estate if the executor or administrator is 'unfit' to act.

14 The leading authority on the Court's power under s 34(1)(c) to remove an executor because they are unfit to act is the judgment of Ashley J in Monty Financial Services v Delmo.[4] Justice Ashley explained that, although a testator's intention that a particular nominated person be the executor of their estate should not lightly be set aside,[5] the cases concerning the interpretation of s 34(1)(c):[6]

... all involved misconduct or neglect of duty by the executor in the period between grant of probate and application for removal. The misconduct or neglect was constituted by matters such as unwarranted delay in administration of the estate, failure to communicate with beneficiaries, failure to account, and unreasonable delay in paying beneficiaries their entitlement. Turner apart, the authorities are consistent in holding that unfitness is demonstrated by the presence of such a factor. 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, or carelessness, or of incompetence. In each case the actual or potential deleterious effect upon the estate and the beneficiaries is the same. ...

15 In approving Ashley J's reasons in Fysh v Coote,[7] Ormiston JA (with whom Batt and Chernov JJA agreed) referred to Dixon J's statement in Miller v Cameron[8] in relation to the removal of trustees as having equal application to the removal of executors:[9]

The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee. In deciding to remove a trustee the court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to [their] continued occupation of the office. Such a judgment must be largely discretionary. A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised. But in a case where enough appears to authorise the court to act, the delicate question whether it should act and proceed to remove the trustee is one upon which the decision of a primary Judge is entitled to especial weight.

16 The evidence established an irresistible basis to conclude that the welfare of the beneficiaries is opposed to the defendant continuing to act as executor of the deceased's estate. For the reasons which follow, the defendant's conduct reveals a lack of understanding, misconception and disregard about key aspects of her executorial responsibilities which collectively has resulted in serious failures in the performance of her role as executor of the deceased' s estate.

17 A most regrettable and wasteful feature of the defendant's administration of the deceased's estate was her refusal, until shortly before the trial of this proceeding, to acknowledge that the plaintiff was a beneficiary of the estate. The key facts are as follows:

(a) In August 2024, soon after the deceased's death, the defendant requested that the plaintiff provide her with a copy of her birth certificate and Mark's death certificate to prove that she was Mark's daughter (and therefore a beneficiary). The plaintiff complied with these requests and, from about 20 August 2024, the defendant appeared to accept that the plaintiff, as Mark's sole surviving child, was a beneficiary of the deceased's estate.

(b) However, on 6 November 2024, after the plaintiff had retained solicitors and following correspondence between the parties about various disputed matters, the defendant informed the plaintiff's solicitor that she required further evidence to establish that the plaintiff was Mark's child. The defendant stipulated that the plaintiff was to provide either a forensic DNA test proving that she was Mark's child, or a court declaration to the same effect.

(c) On 29 January 2025, the plaintiff's solicitors provided the defendant with various identification documents including a driver's licence, a passport and a copy of Mark's death certificate which identified the plaintiff as his daughter. The next day the defendant informed the plaintiff's solicitor that she did not accept those documents as proof that the plaintiff was Mark's child and reiterated that she was to provide either a forensic DNA test or a court declaration to establish her paternity. Further correspondence about this ensued and, on 3 March 2025, the plaintiff's solicitors provided the defendant with a copy of her birth certificate which listed Mark as her father. Soon after, the other two beneficiaries informed the defendant that they accepted that the plaintiff was Mark's child and that his share of the deceased's estate should go to her.

(d) Despite this, on 10 March 2025, the defendant informed the plaintiff's solicitors that she did not accept the birth certificate as proof that the plaintiff was Mark's child and insisted that a DNA test be undertaken to establish her paternity.

(e) These matters remained in dispute over the following months and were the subject of correspondence between the parties. It was not until the defendant filed submissions in this proceeding, shortly before trial, that she accepted that the plaintiff was a beneficiary. No reason was proffered for the reversal of her position.

18 The approach adopted by the defendant in relation to the question of the plaintiff's status as a beneficiary was unreasonable and obstructive, particularly in circumstances where she had initially accepted the plaintiff was a beneficiary of the deceased's estate. The defendant's insistence that the plaintiff undertake a DNA test in circumstances where her father died some seven years ago was not only impractical, but insensitive and unnecessary. It was not the conduct of an executor concerned to exercise their powers and to discharge their duties in a sound and efficient way. The unnecessarily litigious position adopted by the defendant in some of her correspondence with the plaintiff's representatives, together with the very late and unexplained reversal of her position in relation to the plaintiff's status as a beneficiary, satisfies me that she failed to consistently approach the exercise of her executorial functions dispassionately and with the required objectively. It is also abundantly clear that the unreasonable approach adopted by the defendant to this issue has materially contributed to the costs of the administration of the estate and unnecessarily prolonged the administration.

19 A basal function and responsibility of an executor is to distribute a testator's estate in accordance with their testamentary instructions. An executor is not at liberty to alter that distribution without the consent of all sui juris beneficiaries, or without an order of the Court.

20 Despite these elemental principles, as executor of the deceased's estate and without the consent of the beneficiaries or order of the Court, the defendant has entered into an agreement with a third party which purports to radically diminish the estate by 40%. Remarkably, not only have the beneficiaries not consented to this course of action, two of them have conveyed to the defendant their strong opposition to it. In those circumstances, if the defendant nonetheless considered that making the settlement agreement was in the best interests of the beneficiaries, the proper course was for her to bring an application for judicial advice;[10] no such application has been brought.

21 Moreover, in her dealings with the beneficiaries in relation to the settlement agreement, the defendant has proceeded in an unsatisfactory way which reveals a further aspect of her ignorance or disregard of executorial duties and responsibilities. In particular, despite being previously requested by the plaintiff, a copy of the settlement agreement (entered into on 5 May 2025) was only provided to the plaintiff after the Court made an order to that effect on 25 July 2025.[11] This is one example of the defendant's failure on a number of occasions to discharge her responsibility to provide prompt and proper responses to reasonable inquiries or requests for information by beneficiaries.[12]

22 In her evidence and submissions, the defendant sought to emphasise that, in her opinion, the making of the settlement agreement was in the best interests of the beneficiaries given the claim by Teresita's estate against the deceased's estate in relation to Teresita's asserted interest in the Property.

23 Although executors have a responsibility to seek to resolve legitimate claims against an estate, on any reasonable view, because of doubts which clearly attend the legal validity of the Financial Agreement upon which the claim made by Teresita's estate rests, the defendant was not in a position to characterise the claim made by Teresita's estate as a legitimate one. There are two matters of significance in this regard.

24 First, at the time the Financial Agreement was entered into, the deceased was subject to an administration order and a guardianship order made by the Victorian Civil and Administrative Tribunal. The relevant order recorded that the Tribunal was satisfied that the deceased 'has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances and estate; and needs a guardian and an administrator'. Despite this, the Financial Agreement appears to have been signed by the deceased in person; it is not apparent that it was executed by the deceased's appointed administrator.

25 The second issue concerns non-compliance with the requirements of the Family Law Act 1975 (Cth) pursuant to which the Financial Agreement was made.[13] Such an agreement is binding on the parties 'if, and only if', among other requirements, each party was provided, before signing the agreement, with independent legal advice about its effect on their rights and about its advantages and disadvantages,[14] and if each party was provided with a signed statement by the legal practitioner who provided the independent legal advice (the s 90G statement).[15] As stated by Alstergren CJ, these provisions:[16]

... evince[] an unambiguous legislative requirement that, in order for an executed agreement to be binding, each party to a financial agreement must be given clear, independent legal advice specifically in respect to each of the matters mentioned therein.

26 The s 90G statement prepared for the deceased which is annexed to the Financial Agreement is unsigned. Accordingly, prima facie, it would appear that the Financial Agreement is not legally binding.[17]

27 Despite these serious doubts about the legal validity of the Financial Agreement which formed the foundation of the claim against the deceased's estate, the defendant did not seek independent legal advice about the legitimacy of the claim, instead relying upon her own judgment based upon a claimed familiarity with proceedings under the Family Law Act 1975 (Cth). In light of the self-evident nature of the doubts which attend the validity of the Financial Agreement, the serious consequence for the beneficiaries from an acceptance of its validity, and the beneficiaries' opposition to the settlement agreement, the defendant's failure to seek independent legal advice about the claim was entirely unsatisfactory and evinced an indifference by her towards the welfare and interests of the beneficiaries.

28 However, as I have explained, even if it be assumed that the claim made by Teresita's estate was legitimate, as stated by Nettle J in Dowling v St Vincent de Paul Society of Victoria Inc,[18] s 19(1)(f) of the Trustee Act 1958 (which authorises an executor to compromise or settle any claim) 'does not authorise the alteration of beneficial interests without the consent of all interested beneficiaries'.[19] 'The first and principal function of the executor is to carry out the wishes of his testator as expressed in the will[20] and thereby to protect the interests of the beneficiaries as determined by the testator'.[21]

29 A final matter which underlines the defendant's unfitness to act as executor of the deceased's estate was that, at the time of the hearing, she remained in breach of paragraph 7 of the Orders by which she was required to pay the plaintiff's costs of the hearing for interlocutory injunctive relief. Impecuniosity, being the defendant's reason for this default, cannot excuse an executor or administrator from the obligation to comply with their legal obligations in all respects. A high standard of conduct is expected of executors under the general law and statute.[22] Those interested in the affairs of a deceased estate, and the community generally, are entitled to expect that executors will properly discharge the duties of that office, including by complying with court orders.[23]

30 At the conclusion of the hearing, I acceded to the plaintiff's application that the defendant be ordered to pay the costs of the proceeding on an indemnity basis, without indemnification from the deceased's estate. My reasons for making this order are set out below.

31 Unless expressly provided by an Act or by any rules, the Court has a general discretion in respect of costs, including in relation to the administration of estates and trusts.[24] The usual rule is that a successful party to litigation is entitled to an award of costs in its favour, with the unsuccessful party bearing the liability for the costs of the unsuccessful litigation.[25] In the circumstances of this case, there is no reason to depart from the usual rule as to costs.

32 In relation to indemnity costs, the principles of present relevance were summarised by John Dixon J in Banksia Securities Ltd v Insurance House Pty Ltd (Costs):[26]

(a) Costs are to be assessed on a standard basis unless the circumstances of the case justify a departure from the usual course.

(b) The making of an indemnity costs order is in the unlimited discretion of the Court, with such discretion to be exercised judicially and not unreasonably.[27]

(c) The Court may order indemnity costs where the circumstances warrant departing from the usual rule that costs be payable on a standard basis, including conduct that bears a 'sufficient or unusual feature' or some 'relevant delinquency'.[28]

(d) The Court may order indemnity costs in cases where a party, properly advised, knew or should have known that it had no chance of success and has persisted with its claim.[29]

33 The failures by the defendant in the performance of her executorial responsibilities which I have outlined are both numerous and profound. Collectively, they reveal her to have been seriously delinquent in her administration of the deceased's estate so as to warrant a departure from the usual rule that costs are payable on a standard basis. In determining that the defendant should be liable for the costs of the proceeding on an indemnity basis, I have also had regard to her status as a solicitor and the content of correspondence provided to her from the plaintiff's solicitor before the proceeding was commenced. Properly advised, the defendant should have appreciated that, if she continued to seek to give effect to the settlement agreement in the circumstances I have described, her removal as executor of the deceased's estate was inevitable.

34 For in substance the same reasons, I also concluded that the defendant should be liable for the costs of the proceeding without indemnification from the deceased's estate. Ordinarily, an executor who defends an action in the capacity of executor is entitled to be indemnified out of the estate for the costs incurred in doing so, even if the litigation is unsuccessful, the executor's conduct is found to have been mistaken, and the other party in the litigation is held to be entitled to an order for costs.[30] This, however, is subject to what is known as the 'impropriety' exception which may apply to trustees and executors. After surveying the authorities, Lyons J summarised the relevant principles in Hopkins v Edwards as follows:[31]

(1) the trustee is entitled to indemnity for costs, expenses and liabilities which are not shown to have been improperly incurred;

(2) this right of indemnity belongs to the trustee subject to circumstances being present which suffice to deny the right;

(3) the question of whether a cost, expense or liability was not improperly incurred depends on the duty upon, or power in, the trustee which resulted in incurring the cost;

(4) in the case of the costs of litigation or liabilities incurred in litigation, the relevant duty is likely to be whether in incurring the cost or liability the trustee failed to exercise the care and diligence that a person of ordinary prudence would exercise;

(5) even in proceedings involving a trustee which are adversarial in nature or where the trustee's personal interests are at stake, the court must consider whether the costs incurred by the trustee were not improperly incurred in the sense set out in (3) and (4) above; and

(6) a Court must be cautious before concluding such costs, expenses or liabilities were improperly incurred as to deprive a trustee of his or her right of indemnity.

35 For the reasons summarised in [16] and [33], in the events giving rise to this proceeding and the defendant's defence of the plaintiff's application, the defendant failed to exercise the care and diligence that a person of ordinary prudence would exercise. The consequence is that the defendant's costs of the proceeding have been shown to be improperly incurred.

[1] To avoid confusion and without intending any disrespect to the parties, I will refer to the members of the Aquilina family, other than the plaintiff and the deceased, by their first names.

[2] Teresita did not have children of her own or with the deceased.

[3] Mary Ann is disabled and has an administrator appointed by order of the Victorian Civil and Administrative Appeals Tribunal.

[4] [1996] VicRp 7; [1996] 1 VR 65 ('Monty Financial Services v Delmo'). Approved by the Court of Appeal in Fysh v Coote [2000] VSCA 150 [20] ('Fysh v Coote') and Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584 [103]-[106].

[5] Monty Financial Services v Delmo (n 4) 83.

[8] [1936] HCA 13; (1936) 54 CLR 572.

[10] See Order 54 of the Supreme Court (General Civil Procedure) Rules 2025.

[11] See paragraph 5 of the Orders at [9] above.

[12] See Skaftouros v Dimos [2002] VSC 198 [14].

[13] Family Law Act 1975 (Cth), s 90C.

[14] Family Law Act 1975 (Cth), s 90G(1)(b).

[15] Family Law Act 1975 (Cth), s 90G(1)(c).

[16] Kaimal & Kaimal [2020] FamCA 971 [17].

[17] Pursuant to s 90G(1A)(c) of the Family Law Act 1975 (Cth), the Court may determine that a financial agreement is binding where there has been a failure to comply with the statutory requirements. The Court must be satisfied that it would be unjust and inequitable for the agreement to not bind the parties. The onus of proving whether an agreement is binding falls on the party so asserting: Hoult & Hoult [2013] FamCAFC 109; (2013) 276 FLR 412 [60].

[18] [2003] VSC 454 ('Dowling').

[20] In the Estate of Speke (1913) 109 LT 719; In Re Muirhead, dec'd [1971] P 263, 268.

[22] Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 [2].

[23] Fahey v Bird (No 2) [2023] VSC 540 [53].

[24] Supreme Court Act 1986, s 24.

[25] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 173 [25].

[26] [2020] VSC 234 [15].

[27] Bass Coast Shire Council v King [1997] 2 VR 5, 29.

[28] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 89 [44].

[29] Murdaca v Maisano [2004] VSCA 123 [40], citing Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397; Macedon Ranges Shire Council v Thompson [2009] VSCA 209 [15].

[30] Drummond v Drummond [1999] NSWSC 923 [43].

[31] [2020] VSC 456 [234].