Plaintiff v Defendant

1. The deceased passed away on 18 February 2021. He is survived by his wife, May Mohammad, his four children (being the plaintiff, the defendant, a daughter, Yesar, and a son, Ahmed) as well as his two brothers.
2. The deceased left a will dated 5 February 2021, which appoints the defendant as his executor. The defendant obtained a grant of probate on 11 April 2023. Both the plaintiff and defendant are beneficiaries under the will, together with other family members of the deceased.
3. As at the date of death, the executor valued the deceased's estate at $958,390.80. The bulk of the estate comprises a real property located at 92 Lakeside Drive, Roxburgh Park valued at $836,000. The inventory also identifies Persian rugs (the value of which had not been ascertained at the date of death) and shares in Al-Hashimi Investments Pty Ltd ('AHI') and Bluestone Children Services Pty Ltd ('BCS'), each assigned a nominal value totalling $155. Moreover, the inventory included foreign assets comprising a Qatari bank account and shares in 'Barwa', a Qatari public company. No value is ascribed to these foreign assets in the inventory.
4. The defendant currently resides overseas, having left Australia some 20 months ago. The defendant has not filed an administration account pursuant to r 6.03 of the Supreme Court (Administration and Probate) Rules 2023 (Vic) in respect of the estate, despite being ordered to do so.[1] Since August 2025,[2] the defendant has represented himself in this litigation. He has not filed any evidence or submissions in relation to this removal application, having being afforded the opportunity to do so. The defendant did not appear at the hearing on 19 March 2026, despite having notice of it.
5. As a beneficiary under the will with an interest in the due administration of the deceased's estate, the plaintiff has standing to make this removal application.

1. Under s 34(1)(c) of the APA, the Court has a discretion to remove an executor if satisfied the executor is 'unfit to act in such office'. The discretion will not be exercised lightly, involving as it does the removal of the person chosen by the deceased. As the Court of Appeal made clear in Dimos v Skaftouros,[3] the circumstances in which the Court may determine an executor is 'unfit to act' are not limited to unfitness established by their disqualification to act, but will include neglect of duty in the administration such as 'unwarranted delay and failure to communicate with beneficiaries, failure to account as well as conflict of interest and duty'.[4] It does not matter whether the dereliction is intentional - a dereliction borne of carelessness or incompetence will have the same actual or potential deleterious effect on beneficiaries.[5] The Court's paramount consideration in exercising its power of removal under s 34(1)(c) 'is the welfare of the beneficiaries and the protection of their interests in the estate'.[6]
2. Removal of the defendant is also sought, if it is necessary, as trustee of the deceased's estate under s 48(1) of the Trustee Act. There is no material directed to the question of whether there has been ascension by the defendant to the role of trustee. However, as the principles relating to the exercise of the power of removal of an executor are derived from the authorities governing the exercise of the like power of removal of a trustee, their consideration and application is relevantly the same in either case.[7] Hence, if the Court sees fit to make orders removing the defendant as executor under the APA, those orders will usually be accompanied by equivalent orders under the Trustee Act so as to 'avoid any errors or confusion that may arise in the administration of an estate'.[8]

Dereliction of duty of the defendant (in his capacity as executor and/or trustee)

1. The plaintiff submits that the defendant is unfit to continue acting as executor and trustee by virtue of his dereliction in fulfilling his duties of office. She submits that his continued occupation of the roles is adverse to the interests of the beneficiaries. She seeks the appointment of an independent administrator who is based in this jurisdiction.
2. Broadly, the asserted dereliction in duty by the defendant comprises:

(a) delay in administering the estate despite over five years passing since the deceased's death;

(b) breach by the defendant of his personal undertaking given to the Court and his subsequent breach of Court orders;

(c) the exposure of the estate to financial penalties or losses by reason of the defendant's failure to administer it;

(d) the defendant's failure to communicate with beneficiaries; and

(e) the defendant's absence from this jurisdiction, having taken up residency in Qatar since June 2024.

1. The plaintiff relies on her affidavits affirmed on 19 January and 19 February 2026 to establish the above matters. The plaintiff's evidence is uncontradicted.

1. Approximately 25 months elapsed between the death of the deceased, on 18 February 2021, and the defendant's application for a grant of probate on 28 March 2023. During those 25 months, the plaintiff and her sister, Yesar, contacted the defendant on multiple occasions requesting that he begin to administer the estate. The defendant responded only intermittently to those requests. The defendant's making of the probate application followed the plaintiff foreshadowing legal proceedings.
2. Another three years have elapsed since the grant of probate. The estate remains almost entirely unadministered. In that time, and in the absence of contradictory information from the defendant and the administration account as ordered, it appears that not one asset of the estate has been called in and realised, nor have any distributions been made to the beneficiaries. The plaintiff highlights the following inaction.

(a) The Roxburgh Park property remains in the executor's name. It has not been advertised for sale, or used to generate rental income.

(b) The Persian rugs identified in the inventory have not been valued, nor have they been sold.

(c) The status of the deceased's interest in BCS is unclear, including the value of that interest. BCS has been, and may still be, the subject of a State Revenue Office investigation and may face significant liabilities and penalties. The defendant has not provided information about these matters despite request.

(d) The status of the deceased's interest in AHI, which company is the trustee of the Al-Hashimi Family Trust, is unclear, including the value of that interest and whether any new director has been appointed in place of the deceased. The defendant has not provided information about these matters despite request.

(e) There has been no information and no confirmation from the defendant as to whether the estate has filed any necessary tax returns over the last five years or met accrued tax liabilities, including in respect of the deceased's foreign assets.

(f) There has been no investigation of, and realisation of, the extent of the deceased's foreign assets, most particularly the nature and value of the deceased's interest in Barwa. The defendant has not provided information about these matters despite request.

1. In these circumstances, I am satisfied that the defendant has failed to carry out the fundamental elements of his executorial or trustee duties. He has not proffered any explanation for the delay, or for how long it might continue. His continued delay in administering the estate is contrary to the interests of the beneficiaries.

Breach of undertaking as executor and Court orders

1. By his affidavit affirmed on 28 March 2023 and filed in the probate proceeding, the defendant gave the usual undertakings contained within r 2.04(2)(c) of the Supreme Court (Administration and Probate) Rules 2023 (Vic), including to file a true and just account of the administration of the estate if required by the Court. By orders made on 20 June 2025 in this proceeding, the Court required the defendant to file and serve a true and just account of the administration by 4:00 pm on 18 July 2025.
2. The defendant breached the Court's orders and his prior undertaking. He has provided no explanation for his breaches. I accept the plaintiff's submission that this constitutes serious dilatory conduct that is contumelious of the Court's jurisdiction and the defendant's fiduciary obligations.

1. The defendant's delay has put the estate at risk in various ways including the risk of penalties for unpaid taxation liabilities, a diminution in the value of the real property asset because of the delay in its sale and the failure to maintain, repair and insure it, as well as the potential loss of a CGT exemption.
2. As disclosed in the inventory, the most significant asset of value in the estate is the Roxburgh Park property. The property has not been sold, nor has it been rented out over the five years since the deceased's passing. The plaintiff gave evidence that it has not been maintained and repaired by the defendant. The insurance policy for the property lapsed in November 2021. Yesar and the plaintiff arranged for the purchase of a new insurance policy from their own funds. By email to the defendant dated 6 December 2021, Yesar sought reimbursement for what she '[had] covered so far' and asked 'how do you plan to manage future operating expenses for the house.'[9] Yesar was only reimbursed in June 2025.[10] Her questions remain unanswered. Significantly too, given the delay in its realisation, the property may no longer be exempt from CGT.
3. The affairs of the two Australian based companies, AHI and BCS, are not being effectively managed by reason of the failure of the defendant to appoint a replacement director to manage, or participate in the management of, their affairs. That inaction will likely have a deleterious effect on the value of the estate's interest in each of those companies. By notice dated 20 February 2024, ASIC issued AHI with a proposed deregistration notice.[11] There is no evidence that the notice has been responded to, placing AHI at risk of deregistration by ASIC which would jeopardise any assets held by it as trustee of the family trust. It appears that no director has been appointed in replacement of the deceased since his passing. The same pertains to BCS. Specifically regarding BCS, the plaintiff understands that the State Revenue Office has been investigating BCS in respect of land use and valuation matters and has issued tax surcharges and interest penalty notices to that company which could directly affect the value of the estate's interest in it.
4. The estate's foreign assets and their treatment under Qatari law have not been investigated. In particular, there is no explanation for the reduction in the balance of the deceased's Qatari bank account from $118,465.50 to approximately $30,000. Likewise, the estate's shares in Barwa remain uncollected and unrealised.
5. Additionally, the defendant's failure to file tax returns in respect of the estate may expose the estate to significant penalties. Similarly, in circumstances where the estate holds overseas assets, the potential taxation impacts of owning and dealing with those assets requires investigation, so that any adverse impacts on the estate may be minimised.
6. I am satisfied that the defendant's delay in administering the estate, and his intermittent attention to the matters arising in respect of the administration, has likely already adversely affected the value of the estate and will continue to do so. This, in turn, necessarily adversely affects the value of the beneficiaries' interests.

1. As executor, the defendant is obliged to keep the beneficiaries informed as to progress and outcomes of the administration of the estate and to respond to reasonable requests for information.[12] The defendant has failed to communicate with the beneficiaries in a timely way, or at all. As is clear from the plaintiff's evidence, there have been numerous occasions where the defendant has either not responded to reasonable communications from the plaintiff or other beneficiaries, or has not done so for many months. The plaintiff has been forced to incur the costs of engaging solicitors to provoke a response from the defendant. Yet, even the solicitors' correspondence has been ignored. Furthermore, for the six months since August 2025, the defendant has been silent and has failed to participate in this legal proceeding.
2. The failure of the defendant to communicate with the beneficiaries and to provide the administration account in accordance with the Court's orders has resulted in the beneficiaries being left in the dark in respect of critically important aspects of the administration of the estate. The conduct of the defendant is unsatisfactory and provides additional evidence of his unfitness for the office to which he has been appointed.

1. In her originating motion, the plaintiff sought relief on the basis of s 34(1)(a) of the APA, that is, that the defendant has remained outside Victoria for more than two years. However, the plaintiff's evidence establishes that the defendant has not yet been absent from the jurisdiction for two years. Regardless, his absence from Victoria and his disregard for this Court's jurisdiction, supports the plaintiff's submissions that the defendant is unfit under s 34(1)(c) of the APA.
2. The beneficiaries' lack of confidence that the estate will be administered while the defendant is residing overseas, especially given his flagrant and unexplained breach of the Court's orders and his personal undertaking, is well justified. His continued absence erodes the beneficiaries' ability to oversee the administration of the estate and enforce their rights against the defendant. It also undermines the Court's ability to supervise the administration. There is no evidence before the Court that the defendant presently intends to return to Victoria, which might otherwise alleviate some of these concerns.

Conclusion regarding the defendant's unfitness

1. Based upon a consideration of the whole of the defendant's conduct as described above, I am satisfied the defendant is unfit to continue to act as executor (or trustee) of the estate and he must be removed. The defendant's conduct constitutes a serious neglect and laxity in the proper performance of his duties. His delay in the administration and his failure to respond to communications or to provide information to the beneficiaries, including in breach of his undertaking to the Court and the Court's orders, is a gross dereliction of duty. He has placed the estate at significant risk and his conduct is unquestionably deleterious to the interests of the beneficiaries. They remain shut out from their father's estate when he died over five years ago. Orders removing the defendant as executor and trustee are necessary in order to protect the estate and the interests of the beneficiaries.

1. The plaintiff relies on the affidavit of her solicitor, Jennifer Maher, sworn on 17 March 2026 which exhibits a letter from Mr Troy Palmer, solicitor, dated 13 March 2026. The letter sets out Mr Palmer's qualifications for the role of administrator of this estate, confirms that he has no interest adverse to the estate or any interest in the outcome of the proceeding and sets out that he proposes to utilise his firm, Mills Oakley, to perform legal work for the estate and the rates that he proposes to charge for his services.
2. I am satisfied that Mr Palmer is suitably qualified to act as an independent administrator of the estate and acknowledge that he has provided the usual probate undertakings contained within s 2.04(2)(c) of the Supreme Court (Administration and Probate) Rules 2023 (Vic). I will make orders to effect his appointment in place of the defendant.

1. The plaintiff seeks orders that the defendant pay her costs of the proceeding without recourse to the estate and on an indemnity basis.
2. The plaintiff has been successful in obtaining the relief sought by her originating motion and so costs should follow the event. In determining whether indemnity costs should be ordered, the Court looks primarily at the conduct of the party during the litigation. In limited cases, antecedent conduct may provide a basis for imposing an indemnity costs order, typically where it is intended to provoke, disrupt, prolong or defeat the litigation, or provides context for conduct exhibited during the litigation.[13] A party's knowledge, including knowledge of their past conduct, may be relevant to the assessment of their conduct as a litigant.[14] Having regard to these principles and the circumstances of this case, I am satisfied that an indemnity costs order is justified for the following reasons.

(a) First, the defendant's unreasonable delay in the administration of the estate, especially after being warned of the intention to bring proceedings, provoked this litigation. Knowing the plaintiff intended to commence a proceeding absent further action in the administration, the defendant has done nothing to progress the administration.

(b) Second, the defendant initially defended the proceeding and, when he apparently lost interest in doing so, rather than resign his position, he forced the plaintiff to continue to final hearing to obtain Court orders. He has not responded to the plaintiff's communications, nor appeared in, or responded in any way to, the proceeding since August last year. The plaintiff sent a proposal (by email from her legal representatives) to the defendant on 6 November 2025, offering to resolve this litigation by appointing an independent administrator in place of the defendant by consent. The defendant did not respond to that proposal, which necessitated the matter proceeding to final hearing. This is conduct 'in the litigation' that has increased the plaintiff's costs.

(c) Third, the defendant's breach of his personal undertaking and his unexplained breach of the Court's orders in failing to deliver an administration account constitute a contumelious disregard for the Court's authority and are high-handed.

1. I will accordingly order that the defendant pay the plaintiff's costs of the proceeding personally (that is without recourse to the estate) on an indemnity basis.

(a) to remove the defendant as executor of the estate under s 34(1)(c) of the APA;

(b) to remove the defendant as trustee of the estate under s 48(1) of the Trustee Act;

(c) to appoint Mr Troy Palmer as the administrator of the estate with the will annexed, and as trustee of the estate; and

(d) that the defendant pay the plaintiff's costs of the proceeding without recourse to the estate on an indemnity basis.

1. As noted at the outset, there are orders that will need to be made as a consequence of the removal, such as orders to effect the vesting of estate/trust assets in the newly appointed administrator/trustee. I will make such orders broadly in accordance with the proposed orders provided to the Court by the plaintiff in advance of the hearing.

[1] Order of Judicial Registrar Lorenz in Re the estate of Al-Hashimi [2026] VSC 154 (S ECI 2024 04829, 20 June 2025).

[2] Notice of ceasing to act filed by the defendant's solicitors on 11 August 2025.

[3] (2009) 9 VR 584 ('Skaftouros').

[5] Monty Financial Services Ltd v Delmo [1996] VicRp 7; (1996) 1 VR 65, 73.

[6] Skaftouros [13] (Winneke P), quoted in Re Johnson; Blackham v Blackham [2024] VSC 497, [48].

[7] Cicvaric v Blazevic [2024] VSC 450, [57], considering the test in Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 580-1 (Dixon J).

[8] Cicvaric v Blazevic [2024] VSC 450, [115], quoting Giurina v Giurina [2018] VSC 599, [20].

[9] Affidavit of Sarah Al-Hashimi sworn 19 January 2026, 54.

[10] Affidavit of Sarah Al-Hashimi sworn 19 January 2026, [17(k)].

[11] Affidavit of Sarah Al-Hashimi sworn 19 January 2026, 85.

[12] Dimos v Skaftouros [2004] VSCA 141, [163] (Dodds-Streeton AJA).

[13] Ali v Hartley Poynton Pty Ltd (No 3) [2002] VSC 292, [10]: wrongs done to successful party provided context within which to judge subsequent conduct leading up to and during any subsequent litigation; Velissaris v Fitzgerald [2008] VSCA 152, [20] (Maxwell P): lodgement of a caveat was calculated to provoke the commencement of a proceeding; Sitzler Savage Pty Ltd v Northern Mining Holdings Pty Ltd [2012] VSC 104 (Zammit AsJ): where a party and solicitor had no authority to bring proceeding.

[14] NNFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480; (2001) 187 ALR 654, [56].