Plaintiff v Defendant

1 This proceeding concerns the administration of three deceased estates of the Burke family, a family with farming history in the Bendigo region. Should the defendant be removed from its role of administrator, executor and trustee of the estates?

2 The defendant, Australian Executor Trustees Ltd (AET), is a licensed trustee company.[1] It provides professional executor and trustee services to about 500 estates and over 1,100 trusts.[2] It is the successor in law of Equity Trustees Wealth Services Ltd (Equity Trustees or Equity) as administrator and executor of the estates.[3] In these reasons I refer to AET and Equity Trustees as the defendant. Equity Trustees was itself the successor in law of Sandhurst Trustees Ltd, earlier known as Sandhurst and Northern District Trustees Executors and Agency Company Ltd (collectively, Sandhurst). The defendant took over from Sandhurst in March 2017.[4]

3 These entities, in their various iterations, have administered eleven deceased estates of the Burke family at various times since 1938.

4 Patricia Margaret Burke (Patricia or the plaintiff), is a beneficiary of the three relevant Burke family estates. She commenced this proceeding in 2019 against the defendant, originally seeking orders in the nature of judicial advice and directions under ord 54 of the Supreme Court (General Civil Procedure) Rules 2015 for an accounting of the defendant's administrations of the estates, and payment of her entitlements from them.

5 The plaintiff's originating motion also included a claim for compensation of the estates based primarily on a contention that the defendant was allowing another beneficiary, the plaintiff's brother Francis Michael Burke (Frank), to use estate land in a way that was causing losses to the estates. The plaintiff does not currently press for the determination of any such claim for compensation. However, the plaintiff contends that a proper case for investigation of such a claim arises, and this should lead to the defendant's removal from its administration of the estates.[5]

6 Following the commencement of the proceeding, there was a measure of progress in administration of the estates, including the sale of various lots of estate land and several interim distributions.

7 The principal controversy in this proceeding concerns the largest and most valuable item of remaining estate land, a farming property known as 'Weston Vale'. The plaintiff claims that the defendant made, and then resiled (or 'retracted' itself) from, an agreement with and between the beneficiaries about the way Weston Vale would be sold by the estates. The plaintiff claims that Weston Vale should have long ago been sold on the open market. The plaintiff complains that the defendant repeatedly extended opportunities to Frank to acquire Weston Vale for himself, after the expiry of agreed deadlines and outside any terms agreed with the plaintiff and other beneficiaries. In these and other ways, the plaintiff claims that the defendant preferred the interests of Frank over herself and other beneficiaries. The plaintiff claims that this and certain related conduct and omissions of the defendant have exposed the defendant to claims that it has breached its duties to the estate, and have led the defendant into a position of irreconcilable conflict of interest and duty. The plaintiff contends that the defendant is therefore unfit to remain in its role, and an independent executor/administrator and trustee is needed.

8 In September 2023, Patricia applied to amend her originating motion to add claims that the defendant is unfit to continue to act as executor of the estates and should be removed from office as executor (or administrator) and trustee of them.[6] Patricia also sought an undertaking from the defendant not to continue with any further sales of land of the estates. The defendant gave that undertaking and it remains in effect.

9 The defendant claims that, since March 2022, there has been a binding agreement in writing between it and Frank to sell Weston Vale to Frank (a conclusion disputed by the plaintiff). The defendant claims that, apart from finalising this sale and another property that it has agreed to sell to Frank (called 'Bennetts'), very little else remains to be done to complete the administration of the estates. The defendant denies that it is in a position of conflict and says it would be against the interests of all the beneficiaries and estate as a whole to remove it from office.

10 I have decided to remove the defendant from its position as executor/administrator and trustee of the estates. This is principally because the defendant is exposed to various strong prima facie claims for wastage of the estate, and this conclusion leads to conflicts which are not likely to be properly manageable by it, and are irreconcilable. The way the defendant has conducted the administration since late 2021 has given rise to a reasonable perception that it is partial to the interests of Frank over the interests of Patricia, and there can be no confidence that the defendant will discharge its remaining tasks in a manner that is free from the influence of that partiality. I will appoint an independent practitioner to assume the defendant's roles and complete the administrations as soon as they reasonably can.

11 The dispute about the enforceability of the alleged agreement for Frank to purchase Weston Vale is a significant concern and may jeopardise an orderly finalisation of the administrations. Subject to considering any submissions to the contrary, I propose to direct the new administrator to perform the alleged agreement between the defendant and Frank concerning Weston Vale and Bennetts, by a deadline I will specify, unless the new administrator or someone else applies within that deadline for judicial advice and/or declarations to the contrary.

12 Frank would have to be a party to any such application, especially if any such application were to entertain declarations about the enforceability and terms of the alleged agreement. There is a strong argument that Frank would have to be joined as a party to allow a binding resolution to be reached.

13 In any event, I will hear the parties and Frank as to the deadline I should impose on the performance of the current alleged agreements for the sale of Weston Vale (said to have been made in March 2022) and Bennetts to Frank. I am inclined to order that the agreements must be performed and fully settled within three months.

14 In late 2024, owing to the factual complexity of the matter, I ordered pleadings.[7] The pleadings assisted greatly in defining the issues, although they are not to be treated as definitive in a case of this kind.[8] The matter proceeded to preparation for trial. In May 2025, the plaintiff sought production of various categories of documents, and the defendant resisted. The plaintiff brought a discovery application that was granted by an Associate Judge of the Court in late June 2025. I heard the trial on most of the claims set out in the plaintiff's amended originating motion and amended statement of claim[9] in August and September 2025.[10]

15 The plaintiff's case at trial was largely documentary, and relied chiefly on the extensive correspondence in the matter since about 2016, which was very largely conducted between the solicitors for the various protagonists. The plaintiff invited various findings adverse to the defendant to be drawn from the correspondence. The plaintiff called the following witnesses: herself; Andrew McDougall (Andrew), her sister Mary McDougall's (Mary) widower; and two expert witnesses, Michael McNamara (of Land Agribusiness Water Development (LAWD)) and Donald Naunton.

16 The defendant disputed the conclusions the plaintiff invited to be drawn from the correspondence. The defendant called the following witnesses: Aaron Tunks (General Manager Estates, Trusts and Tax of AET); and the plaintiff's siblings, Frank, Rene Burke (Rene), and Louise Burke (Louise). In addition, the defendant tendered a document by consent outlining the past commissions received by Sandhurst.[11] Following orders made on 13 August 2025, the defendant provided historical documents explaining these commissions.[12]

17 Much of the outline of evidence of Mr Tunks was received as his evidence in chief. The evidence in chief of Mr Naunton and Mr McNamara largely consisted of their expert reports. Otherwise, evidence was received viva voce. Most of the witnesses were cross-examined. There was no challenge to any witness's credit. I am satisfied that each witness was a witness of truth, and they each did their best to give their evidence accurately.

18 One noteworthy feature of the case was that the only witness called from the defendant itself was Mr Tunks. He held a high position in the defendant company. He had little direct involvement in the matter and was in the main not able to shed much light on what had occurred. Officers or employees of the defendant who were involved in direct, operational-level, administration of the estates did not give evidence.

19 Following the hearing, at my request, the defendant filed an affidavit from Mr Tunks explaining the defendant's calculations of certain entitlements.[13] The plaintiff filed material and submissions in response, taking issue with an aspect of these calculations.[14]

20 The plaintiff's principal claim was for an order that the defendant be removed as executor/administrator of the estates pursuant to s 34(1)(c) of the Administration and Probate Act 1958 (Vic) (Administration and Probate Act) on grounds of unfitness, and that an alternative person be appointed, together with various ancillary orders for accounting and vesting of property.

21 Section 34 relevantly provides (emphasis added):

34 Discharge or removal of executor or administrator

(1) Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment -

(c) after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein -

the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.

22 The plaintiff also sought, insofar as it is necessary, the defendant's removal and replacement as trustee of the estates pursuant to s 48 of the Trustee Act 1958 (Vic) (Trustee Act), which provides relevantly:

(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. ...

23 The tests for the removal of an executor (or administrator) and the removal of a trustee are the same.[15] Both grant a broad discretion to the Court. As expressed by Dixon J in Miller v Cameron,[16] the guiding principles are as follows:

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 his 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 of whether it should act and proceed to remove the trustee is one upon which the decision of the primary Judge is entitled to special weight.[17]

24 The Court is to consider the 'whole of the circumstances'.[18] In Monty Financial Services Ltd v Delmo,[19] Ashley J quoted with approval the following reasoning of Nathan J in Old Colonists Association of Victoria v Cox:

Unfitness bears its ordinary common meaning, that is that the person is not fit, adapted or suited to continue as an administrator, or is not deserving of continuing as an executor. It does not relate to the physical health of the executor, but relates to all matters which effect (sic) the capacities of a person to perform an executor's tasks.[20]

25 The situation considered by the Court of Appeal in Dimos v Skaftouros[21] shares some similarities with the present case and merits particular attention. The deceased appointed a solicitor to be his executor, leaving his residuary estate to three of his children. Some years after the deceased's death, they sought the removal of the executor on grounds of various delays, claims of allegedly excessive fees and failures to provide information, and also by reference to the executor's conduct with respect to a proposed sale of one of the estate properties. The three residuary beneficiaries had asked for the property to be transferred to them in specie as tenants-in-common. About 16 months later, when they renewed that request, the executor told them he would be selling the property on the open market, in about a month. The beneficiaries sought an undertaking that the executor would not do so, but he refused. The judge in the Practice Court granted an interlocutory injunction restraining the sale. The trial judge found that (contrary to an assertion made by the executor) the sale was not necessitated by the finances of the estate and that the executor's decision-making was in bad faith. The trial judge found that the beneficiaries' criticisms of the executor were made out and that the executor acted antagonistically toward them.

26 The trial judge's decision to remove the executor was upheld on appeal. The leading judgment was given by Dodds-Streeton AJA, with additional substantive remarks by Winneke P. Their Honours followed a line of authority in the Court adopting a broad approach to the interpretation of s 34(1)(c). Winneke P said the power of removal extended to circumstances of breach and neglect of duty in the administration of the estate, including such matters as unwarranted delay, failure to communicate with beneficiaries and failure to account, as well as conflict of interest and duty.[22] The Court must keep steadily in mind that it will not lightly remove a person chosen as personal representative by the testator, but the paramount considerations are 'the welfare of the beneficiaries and the protection of their interests in the estate'.[23]

27 The trial judge had found that the executor's attempt to sell the estate property was 'in bad faith and for an ulterior purpose'.[24] On appeal, the executor argued that this contention had not been squarely made against him, and the finding was reached in breach of procedural fairness. The Court of Appeal rejected this contention, concluding that the bona fides of the defendant's decision was an issue between the parties and formed part of the considerations to be taken into account. The decision to sell the property was the 'exercise of a fiduciary discretion or power for an improper purpose - that is, a purpose external or ulterior to the purposes for which the power or discretion was conferred'.[25] An improper purpose does not 'necessarily denote dishonesty and is not inconsistent with good, if misdirected, intentions'.[26]

28 Dodds-Streeton AJA characterised the task of the trial judge as follows:

... the trial judge was entitled, and indeed obliged, as he stated, to take into account all of the relevant evidence and to form an overall impression. [27]

29 I must approach my task with reference to the conduct complained of, as a whole. I must consider whether the defendant has acted inconsistently with the welfare of the beneficiaries and the protection of their interests in the estate, and whether the defendant should be removed to prevent a continuation of any such pattern of conduct. In a complex dispute such as the present, particularly where the beneficiaries are divided into different camps as to their preferred outcome, determining what will best protect and promote their welfare and interests is not a simple task.

30 Although the decision must always turn on the individual circumstances of the case at hand, the following guidance is of potential relevance here:

(a) whilst removal of a trustee is common in cases of breach of trust or other forms of formal misconduct, proof of misconduct is not necessarily required;[28]

(b) even conduct that does not strictly fall within executorial duties may be relevant, as it forms part of the broader context;[29]

(c) unfitness to administer an estate includes acts or omissions amounting to neglect or dereliction of duties, regardless of intent;[30]

(d) unfitness may be constituted by matters such as unreasonable delay in the administration of the estate, 'laxity in the proper performance of his duties', failure to communicate with beneficiaries or to respond to communications, failure to provide information, failure to account, and unreasonable delay in paying entitlements to beneficiaries;[31]

(e) even unreasonable and antagonistic requests for information from beneficiaries should be answered appropriately;[32] and

(f) a conflict between duty and interest may be a ground for removal, but only if it is a conflict of a kind likely 'to affect the efficient and satisfactory administration of the estate'.[33]

31 The mere existence of conflicts of interest between an executor and the estate or the beneficiaries 'does not of itself render an executor unfit'.[34] Rather:

It is the inability to act independently and to deal adequately with conflicts and potential conflicts which leads to the need to remove an executor. Where through incompetence or stubbornness an executor cannot cope, then it is proper, as often occurs, for an executor to hand over his or her duties or, if unwilling, for an order for removal to be sought and made against that executor.[35]

32 On the other hand, the plaintiff submitted that I need only be satisfied that there is a reasonable case for investigation raising a potential conflict or claim against the defendant before concluding that the defendant should be removed.

33 In this respect, the plaintiff relied on the decision in England and Wales of Long v Rodman,[36] a case that was also relied upon by the defendant. The legislative provision under which that decision was made[37] was not identical to the provisions in the present case. It conferred 'discretion' to determine an application to appoint a substituted personal representative in broader terms. Nevertheless, I respectfully consider the case to provide useful guidance to a removal application under s 34(1)(c). Although the legislation has diverged, there are shared common law origins that have influenced the development of the principles in both jurisdictions.[38] In particular, I note the following remarks of the Court in Long v Rodman,[39] including those following a decision in the earlier case of In re Folkes:

Where the personal representative is or may be in a position of conflict because of intimated claims against him which need to be investigated, this is a material consideration in the exercise of the Court's discretion. Conflict does not have to be established to merit removal; an outward appearance of or potential for conflict can result in removal: see In re Folkes [2017] EWHC 2559 (Ch), [24] and _Re Weetman; James v William_s [2015] WTLR 1745.

I agree with the approach put forward by Deputy Master Linwood in In re Folkes at [41] for dealing with allegations made against the personal representative:

It seems to me that the appropriate test to be applied to each allegation is whether there appears to be on the evidence before the court, or with such evidence that appears likely to be obtained at proportionate cost, the basis for a claim which has reasonable prospects of success, subject to consideration of potential defences. Such a claim must enhance the value of the estate relative to the costs of pursuing it. Evidence for a claim or a defence before the court is unlikely to be determinative but must not be speculative or dependent upon matters which may or may not happen. Further, the whole may be more than the sum of the parts in that individual claims may be borderline but together they may persuade the court that investigation is necessary. Then the question of the replacement of the Executors must be considered in the context of their position as far as knowledge and possible conflicts of interest are concerned.

In deciding what alternatives to replacement of the executors might be available to the Court, the Deputy Master had regard to the importance of a claimant having access to the estate documents in order to investigate the alleged wrongdoing. ...[40]

34 Another aspect of the approach of Chief Master March in Long v Rodman[41] merits consideration for the potential assistance it gives in this case. His Honour's approach was to first consider whether the circumstances were such that the discretion to remove the personal representative was engaged, second to consider whether an order should be made, and third (if so) to consider what order was appropriate. This can readily be adapted to cases governed by s 34(1)(c) and the Court of Appeal's decision in Dimos v Skaftouros.[42]

35 In my view, even if the discretion to remove the defendant is engaged, it does not mean that it must be exercised; removal is not necessarily the only option available to the Court to address problems in the administration of an estate subject to a removal application, and to protect the beneficiaries' welfare and interests. For example, it may be sufficient for the Court to exercise its jurisdiction under ord 54 to advise and direct the administrator/trustee, and/or to reduce the executor's commission or fees pursuant to s 65A of the Administration and Probate Act.

36 In summary, the task before me is to consider and form an impression of all the circumstances, to weigh the allegations and arguments made by the parties, and to weigh the beneficiaries' interests as a group. I must approach the divergences of interests that have arisen between the beneficiaries with fairness and balance. I must reach my conclusions on removal objectively and in light of all of the relevant facts established by the admissible evidence and admissions before me, and having regard to the stage reached in the administration of the estates. Doing so, in my view:

(a) I should first consider whether the circumstances are such that the discretion is engaged - a step that requires evaluation of the factors in the current case, 'possibly large in number and varied in character',[43] and whether they combine to show that the executor or administrator is 'unfit to act' in the sense I have already described. It is said that such a judgment is 'largely discretionary'.[44]

(b) Next, I should consider whether an order should be made under s 34, and if so what its terms should be. This is consistent with Dixon J's remarks in Miller v Cameron:[45] only once 'enough appears to authorise the court to act' will the 'delicate question of whether [the court] should act' arise, and the primary judge's decision on that point is entitled to 'special weight'. In other words, it too is discretionary.

37 As already noted, the proceeding concerns three Burke family estates that remain under the administration of the defendant.

38 The first is the estate of John Burke Senior (John Snr), who was the plaintiff's great-grandfather. John Snr died intestate on 24 December 1903.[46] Sandhurst obtained letters of administration of John Snr's estate on 28 November 1938.[47] John Snr's estate included substantial amounts of farming land near Axedale, Victoria, some of which remains undistributed, as set out below.

39 The second is the estate of Richard Thomas Burke (Richard), who was the plaintiff's father. Richard died on 7 June 2013, leaving a will dated 25 November 1957.[48] Probate of Richard's will was granted to Sandhurst on 28 April 2015.

40 The third is the estate of Dorothy Margaret Burke (Dorothy), who was the plaintiff's aunt. Dorothy died on 21 September 2016, leaving a will dated 3 July 1999.[49] Probate of Dorothy's will was granted to Sandhurst on 30 November 2016.

41 Neither of these two wills were in evidence before me. I assume they conferred discretionary powers on the defendant as executor to defer the sale of estate properties, but did not entirely displace the executor's general duty to get in and distribute the estate to beneficiaries.

42 The estates of John Snr, Richard and Dorothy are referred to in these reasons collectively as the estates.

43 The plaintiff is a beneficiary of both Richard and Dorothy's estates. She has a 1/6th interest in Richard's estate and a 1/5th interest in Dorothy's estate.[50]

44 The other beneficiaries of Richard's estate are:[51]

(a) the plaintiff's siblings, Rene, Louise, and Frank;

(b) the estate of the plaintiff's sister Mary, who died on 4 July 2018 and whose estate is represented by her husband, Andrew; and

(c) Sophie Louise Twaddle (Sophie) and Nicholas John Twaddle (Nicholas), the children of the plaintiff's sister, Annette Marie Burke-Twaddle, who predeceased Richard.

45 The other beneficiaries of Dorothy's estate are Rene, Mary's estate, Louise and Frank.[52]

46 The plaintiff has an interest in John Snr's estate (amounting to 12.222%), because Richard and Dorothy's estates each have a 1/3rd interest in John Snr's estate.[53]

47 From about 1976,[54] a family farming business operated on the farmland owned by John Snr's estate. It was run through various partnerships, which changed over time as family members died and new family members inherited interests in the land.[55] The business was a sheep farming business.[56] There does not appear to have been any formal partnership agreements.[57]

48 I was informed and will treat as uncontroversial that, from about 2009, the partnership tax returns were prepared in the names of Frank, Richard (and then after 2013 his estate), Dorothy (and after 2016 her estate), Rene, Mary, Louise and Patricia (the partnership, sometimes referred to in the materials as the 'Burke Family Partnership', 'farming business', 'BFF Partnership' or simply the 'Partnership').[58]

49 As there was no formal partnership agreement, it seems that the partnership dissolved and was reconstituted each time a partner died.[59] It is unclear to me whether or how the work done to wind up the affairs of the partnership (around the time of its final dissolution on 31 December 2020) took this principle into account, but I was not asked to determine any such issue.

50 At the time of its dissolution on 31 December 2020, the partnership comprised the plaintiff, Rene, Louise and Frank, and Sophie and Nicholas, and it was also said to have included Mary's estate.[60]

51 There was a dispute between the plaintiff and defendant about the relevance of issues relating to the partnership and its management, including a dispute about whether the plaintiff should have leave to rely on certain paragraphs relating to the partnership in the amended statement of claim.[61] The defendant contended either that partnership issues were irrelevant, or else were very largely irrelevant (and at most only indirectly relevant as part of the factual context). The plaintiff contended that the partnership issues were inextricably woven into the defendant's administration of the estates.

52 In granting the plaintiff leave to rely on the amended statement of claim (as ultimately filed on 7 August 2025), I ruled that the plaintiff should be allowed to include the paragraphs relating to the partnership. I said the trial should be conducted so as to permit ventilation of the partnership issues, while indicating that I would reserve my ultimate conclusion as to their relevance to the claims falling for determination.

53 Having heard the evidence and reflected on the claims, I have resolved this relevance issue in favour of the plaintiff: in my view, the defendant's conduct in relation to the partnership was clearly a relevant matter for me to take into account in deciding whether the defendant should remain in its role as executor/administrator of the estates. I have treated it as such and given it due weight in deciding the overall outcome.

54 There are three Burke family properties in the Axedale area which were frequently referred to by the parties and beneficiaries, with some conflation of property names. These properties were individually known as:

(a) 'Weston Vale' (occasionally misspelt 'Western Vale') (approx. 330 ha);

(b) 'Jerry's' (or 'Jerrys'/'Jerries', and sometimes 'Geary's'/'Gearys'/'Gerry's') (approx. 38 ha); and

(c) 'Tommy's' (or 'Tommys') (approx. 321 ha).

55 These properties are very close to each other and appear to have been often used as part of the same farming operation, and the entire 689 ha area was often referred to as 'Weston Vale'. This has caused some ambiguity in the correspondence and the evidence. Adding further to this confusion, Tommy's comprised two parcels known as 'Tommy's North' (approx. 112 ha) and 'Tommy's South' (approx. 210 ha), until the recent sale of the latter.[62] In these reasons, where I refer to 'Weston Vale' I generally mean all of the above properties or, since the sale of Tommy's South, those that remain.

56 As noted in the overview earlier in these reasons, the other property remaining undistributed from John Snr's estate is known as 'Bennetts'. Bennetts is about 169 ha of land. It is not contiguous to Weston Vale but is nearby, in a locality known as 'Muskerry' about 10 km north of Axedale. For the avoidance of confusion I note that there was another Burke family property in the Muskerry area, which was known simply as 'Muskerry', but it has already been distributed and is not the subject of this dispute.

57 The location and land size of the estate properties that remain registered to the defendant are evident from the following table (which I accept) in a report reproduced in the court book:[63]

58 In other words, land totalling approximately 649 ha remains undistributed from the estates, being:

(a) 479.85 ha comprising Weston Vale, including Tommy's North (located on the north side of the Toolleen-Axedale Road, Axedale, to the east of the Barnadown-Knowsley Road), and Jerry's (located opposite Tommy's North, on the west side of Barnadown-Knowsley Road) (Figure 1);[64] and

_Figure 2: Map of Bennetts (not comparative scale)_64B

168.89 ha comprising Bennetts, located on Muskerry East School Road, Muskerry (Figure 2).[65]

59 The documentary evidence was mostly correspondence between solicitors. Much of it was lengthy and complicated, and some was repetitive and prolix. The correspondence on behalf of the plaintiff was described as having 'barraged' the defendant.[66] This was a fair description of the frequency, length and repetitiveness of her correspondence during some of the relevant periods.

60 The plaintiff explained her reliance on various exhibits by sorting them into categories, which she described as follows:

(a) correspondence in which it was acknowledged by O'Farrell Robertson McMahon Lawyers (OFRM) (on behalf of Frank and/or Rene) that Patricia had no option but to commence proceedings due to the inaction of the defendant;

(b) correspondence and other documents in which the defendant (and OFRM) acknowledged that it could only transfer/sell estate land to a beneficiary with the approval of the other beneficiaries/the Court;

(c) correspondence which records examples of the defendant failing to respond to requests for information, or to provide the requested information (or to do so in a timely manner) both prior to and after the commencement of the proceeding, where:

(i) requests were made by Patricia, Mary/Andrew and beneficiaries generally before the commencement of the proceeding, and following commencement;

(ii) requests were made by Rene, OFRM (on behalf of Frank and/or Rene) and Louise; and

(iii) there were exchanges between the plaintiff (Prior Law) and the defendant (Aitken Partners) in which the plaintiff sought the defendant's correspondence with other beneficiaries and the defendant delayed in responding from May 2024 to May 2025;

(d) correspondence and other documents which record examples of the defendant agreeing to do something but failing to do it promptly or at all, in relation to the topics of:

(i) land titles;

(ii) tax advice and valuations;

(iii) dealings with other properties of the estates;

(iv) the Weston Vale sale;

(v) the winding up of the farming business/partnership;

(vi) plant and equipment;

(vii) the counting/reconciliation and sale of sheep;

(viii) partnership adjustments;

(ix) the Solar Block lease; and

(x) distributions;

(e) correspondence and other documents in relation to the defendant allowing Frank's sheep to be run on land of the estates;

(f) correspondence and other documents in relation to Frank's remuneration and the defendant's failure to oversee his work;

(g) correspondence recording acknowledgments by OFRM (on behalf of Frank) or the defendant (either through Aitken Partners or directly) that agistment would be available;

(h) correspondence recording criticism of the defendant's conduct by Frank;

(i) correspondence recording criticism of defendant's conduct by Rene; and

(j) correspondence recording criticism of defendant's conduct by Louise.

61 Along with the plaintiff's pleadings and submissions, the plaintiff's categories and sub-categories described above have informed my analysis of the issues in the proceeding.

62 The defendant did not categorise its reliance on the exhibits in the same manner. Its analysis of the issues and response to the claim was principally distilled in its closing submissions,[67] along with its defence. The defendant relied upon a chronologically ordered list of 133 exhibits, set out in a schedule at the end of its closing submissions.

63 I turned my mind to all the exhibits referred to by the parties. I do not consider it necessary to specify their contents in great detail in these reasons, and I refer to some of them only in passing or not at all. Further, not every sub-issue and strand of argument sought to be raised by the plaintiff and defendant in their pleadings and submissions needs to be expressly addressed in these reasons.

64 With the need to be efficient and proportionate in the Court's use of resources at the forefront of my mind, I have distilled the issues I consider to be at the heart of the case and focussed upon them. In my view, the pleadings and submissions as a whole raised the following 'key issues' for my consideration and evaluation in deciding whether to remove the defendant from its role with respect to the estates:

(1) Did the defendant unreasonably delay in responding, or fail to respond, to beneficiaries' requests for information, and fail to account to them or keep them reasonably informed?[68]

(2) What conclusions are to be drawn from the defendant's representations and dealings concerning the proposed sale of Weston Vale?[69] Further to key issue (2):

(a) Did the defendant resile from representations about the mode of sale of Weston Vale?

(b) Should the defendant have sought judicial advice?[70]

(c) Is there a binding agreement in force for the sale of Weston Vale?[71]

(d) Is the defendant in a position of irreconcilable conflict?[72]

(3) Did the defendant pay excessive remuneration to Frank (using money from the estates) after the winding up of the partnership?[73]

(4) Did the defendant unreasonably delay in ensuring, or fail to ensure, that Frank properly counted and sold the sheep owned by the partnership upon its winding up?[74]

(5) Did the defendant fail to ensure that the partnership's plant and equipment be sold upon the winding up of the partnership (so their proceeds could be got in and distributed)?[75]

(6) Did the defendant fail to ensure that the estate lands earned income from agistment pending finalisation of the administration of the estates, and/or fail to ensure that Frank kept the fencing in appropriate repair for commercial agistment, and/or allow Frank to run his own sheep on estate lands and use the lands without compensating the estates?[76]

(7) Did the defendant excessively delay in finalising the administration of the estates?[77]

(8) Were or are the fees and commission charged and proposed to be charged by the defendant excessive?[78]

(9) Based on key issues (2) to (8), has the defendant caused wastage of the estates?[79]

(10) Based on key issues (2) to (7), has the defendant improperly preferred the interests of Frank over other beneficiaries?[80]

(11) Based on all the above, has the defendant breached its duties as executor/administrator?[81]

(12) What remains to be done to finalise the administrations?[82]

(13) Based on all the above matters, should the defendant be removed from its office as executor/administrator and trustee of the estates?[83]

65 In this section I set out my findings of fact. I have endeavoured to maintain, as far as possible, a chronological narrative, noting (and to some extent deciding) the key issues outlined in the preceding paragraph in the course of that narrative. Further analysis and my conclusions on each of the key issues then appear in the final section of these reasons.

66 Following the grant of administration in respect of John Snr on 28 November 1938, Sandhurst in due course acted as administrator (or executor) and trustee for the estates of eleven members of the Burke family. I was told very little about the eight other estates and these reasons are confined to the three estates in question. It was not, for example, suggested that if the defendant is replaced as executor/administrator of the three estates in this proceeding, any continuing role it might have in relation to the other eight estates would be impeded.

67 By 2009, the administration of John Snr's estate remained incomplete.

68 It appears that the plaintiff sent a letter on 25 November 2009 to Sandhurst asking about family estate matters, but the letter had been lost and was not in evidence.

69 In a letter dated 3 December 2009, Sandhurst referred and replied to the plaintiff's letter, including as follows:[84]

(a) Sandhurst described to its role as one of 'bookkeeper/administrator rather than ... trustee'.

(b) Sandhurst identified seven beneficial owners of a 'farming property' (which I assume to be a reference to Weston Vale): Richard, Dorothy, Mary, Rene, Frank, Louise and the plaintiff.

(c) Sandhurst provided some background information about the commencement of an arrangement in 2006 by which Frank was employed 'to manage the farm'.

(d) Sandhurst proposed some steps that beneficiaries might to wish take including formalising the legal ownership of the property (which was held in Sandhurst's name) and formalising the legal structure of the operating farming business, such as by a company structure or partnership agreement.

(e) In a table and supporting information in the letter, Sandhurst provided answers to nine questions that had (I assume) been posed by the plaintiff's letter, relating to topics such as commission and financial performance of the farming enterprise on the land associated with the Burke estates.

70 As already noted, following Richard's death in June 2013, Sandhurst was granted probate of Richard's estate. Probate was granted about two years later, in April 2015. It is not clear why probate took so long.

71 Seven months after that, on 17 November 2015, Rene contacted Sandhurst by email raising concerns about an accounting issue, and also stating that the way Sandhurst had managed Richard's affairs had 'impacted both emotionally and mentally on [the] beneficiaries'.[85]

72 On 18 August 2016, Sandhurst wrote to all of the beneficiaries of Richard's estate. The letter enclosed documents about the financial status of the partnership for the financial year ending 30 June 2015 and statements of receipts and payments for the estate between 2013 and 2016.[86] Two of the beneficiaries, the plaintiff and Mary, wrote letters in reply. They raised various concerns regarding expenses, financial records and transfers of estate property as between beneficiaries.[87] One of the concerns raised by the plaintiff was the use of Weston Vale by Frank, his salary and the accounting of expenses in relation to the property.

73 Dorothy died on 21 September 2016.[88]

74 On 16 October 2016, Sandhurst wrote a response letter to the plaintiff, but in relation to the estate of John Snr only, stating (among other things) that this estate was being prioritised and enclosing a calculation of entitlements as at that date.[89]

75 On 30 November 2016, probate of Dorothy's will was granted to Sandhurst.[90]

76 On 23 March 2017, the Australian Securities and Investments Commission issued a certificate of transfer relating to the acquisition of Sandhurst by the defendant (Equity Trustees), with an effective date of 31 March 2017.[91]

77 With reference to key issues (1) defendant's responsiveness and (7) delay, some initial observations concerning the period of Sandhurst administration are warranted. Sandhurst's conduct was unsatisfactory: it was dilatory, apparently disengaged and showing no initiative, and almost entirely unresponsive to reasonable inquiries from beneficiaries. Secondly, the case before me was conducted on the basis that the defendant was accountable for the consequences of any conduct by Sandhurst. I accept this as a general proposition, but consider there to be some nuance required. In my view, I should not ignore the implications of the takeover altogether. For example, for a time after the takeover there appears to have been continuity in the relevant personnel carrying out roles in the defendant organisation at the operational level, but after a time new personnel appear in the correspondence. This makes it important to avoid any assumptions about the defendant continuing the pattern of conduct shown by Sandhurst.

Equity Trustees initial period - March 2017 to July 2019

78 In April 2017 and February 2018, Mary and the plaintiff (respectively) contacted the defendant reiterating and adding to their concerns regarding the management of the estates.[92]

79 In early 2018, the plaintiff attended a meeting with Di Rooney of Sandhurst (now owned by the defendant) in Bendigo, at which the plaintiff asked Ms Rooney 'what her plan was to bring us together to discuss the land that would need to be sold'.[93] Ms Rooney did not respond to this question, and Sandhurst did not respond to a follow-up phone call or letter from the plaintiff either.[94] This is relevant to key issue (1) defendant's responsiveness.

80 Mary died on 4 July 2018,[95] without having received distributions from the estates.

81 In July 2018, the plaintiff engaged Prior Law. From this time onward, the plaintiff corresponded through Prior Law. The plaintiff demanded documentation in relation to the finances of the estates and the delay, and sought a halt on any property transfers until that occurred.[96]

82 By a letter sent on its behalf by Hunt & Hunt solicitors on 31 July 2018, the defendant asserted that the delay arose due to the beneficiaries' inaction and suggested it sell the remaining land.[97] The letter included the following text, which has assumed great significance in this proceeding (emphasis added):

... legally, it is not open to the executor to contemplate selling one particular parcel of land to a particular beneficiary unless all other beneficiaries unanimously agree in writing to that outcome and also the agreed sale price. It is up to the beneficiary contemplating this outcome to arrange for the other beneficiaries to provide that consent. On that basis, unless a response is received from all beneficiaries unanimously to the contrary, on or before 5:00pm on 31 August 2018, the executor will set in motion the required steps to undertake the sale of the estate land for the Spring/Summer market.

83 This proposal was resisted by at least two of the beneficiaries. On 1 August 2018, Rene sent an email to Hunt & Hunt objecting to the sale of all the properties and expressing shock at Equity Trustees causing such a letter to be sent as its first communication to the beneficiaries so soon after succeeding Sandhurst in the role.[98] The email included the following:

We as a family need to meet. We have waited for that invitation from the Executor/s which has never come. Of course we can identify which land will have to be sold for those of us who have cared for and maintained it over the last 12 and half years and wish to continue farming this is easily identifiable. For those who wish to receive money it matters little where it comes from.

84 On behalf of the plaintiff, Prior Law also wrote referring to the outstanding unanswered requests for information, and querying how Hunt & Hunt could propose an imminent sale of the relevant land without any valuations or capital gains tax (CGT) assessments having been done, and indicating that until such information has been provided the beneficiaries could not be expected to come to such an agreement.[99]

85 Between September 2018 and March 2019, in the period leading up to the commencement of this proceeding in July 2019, there was significant correspondence between the plaintiff and the defendant, including as follows:

(a) On 12 September 2018, Prior Law spoke with employees of the defendant, Adrian Green and Mercia Chapman, on the telephone regarding the plaintiff's concerns about delay in the administration and the status of dealings with Frank.[100]

(b) By email dated 19 September 2018, the defendant provided statements of payments and receipts in relation to the estates of Richard and Dorothy covering the commencement of administration to 19 September 2018.[101]

(c) By responding letter dated 3 October 2018, Prior Law sought answers to numerous questions raised in tabular form about the statements of payments and receipts, and raised other topics including delay, lack of communication, lack of valuations to prepare the properties for sale, and Frank's use of bank accounts belonging to the estates.[102] In a series of further letters and emails to the defendant, as well as phone calls directed to members of the defendant's staff, the plaintiff followed up these queries.[103]

(d) The final instalment in this correspondence was on 12 March 2019, when Prior Law wrote to the defendant noting that there had been no response from either Mercia Chapman or Adrian Green to several previous communications. The letter concluded:

We advise that our client is most concerned with the delay and lack of communication and is at a loss to consider what moves she may take.

Accordingly, she has instructed me to brief Counsel in the matter which we are now doing. Please respond to our previous correspondence including your conversations with Frank on 23rd November 2018. We await your advice by return.[104]

87 During this period, there was also some correspondence between the beneficiaries. The beneficiaries corresponded amongst each other by email in October 2018 regarding the lease of a property near Bennetts as a solar farm to Edify Energy (Solar Block).[105] No correspondence arranging a meeting of beneficiaries appeared in evidence.

88 On 21 February 2019, it appears the defendant executed an Option to Lease and an Option to Acquire Easements in relation to the Solar Block.[106]

89 There appears to have been no relevant correspondence between the defendant and plaintiff in April to June 2019.

90 I will now return to key issues (1) defendant's responsiveness and (7) delay. The plaintiff contended that much of the disputation that occurred between the beneficiaries arose from the root cause of Sandhurst's delay, and then the defendant's delay, in taking proper steps to finalise the administrations of the estates, and from a failure to take the initiative to convene a meeting of all the beneficiaries early on. The plaintiff pointed out that it was not until after the commencement of the proceeding (when the first mediation was held in December 2019) that any such meeting occurred.

91 A related criticism made by the plaintiff was that the defendant initially, through the letter of Hunt & Hunt on 31 July 2018 and in various other subsequent communications, accepted that the law required the unanimous consent of all beneficiaries (including as to price) for any sale of an estate property to any one of them, and that in the absence of unanimous agreement, any such property would have to be sold on the open market. I return to this point later, as it is highly relevant to the plaintiff's claims about the defendant's mishandling of the sale of Weston Vale (key issue (2) defendant's dealings with Weston Vale).

92 The defendant submitted that it was not to blame for the litigation and pointed to disunity amongst the beneficiaries as the root cause of the dispute. The defendant relied in particular on the proposal Hunt & Hunt made in July 2018 to sell the estate properties on the open market, and the resistance this met from two of the beneficiaries. The defendant contended that the beneficiaries' resistance to the July 2018 proposal, and their failure to present a coherent joint position as an alternative, made the family responsible for the delay.

93 My overall assessment of the pre-litigation period is that it was characterised by a long period of inattentive management of the estates by Sandhurst, extending into the period after the defendant's acquisition of Sandhurst. This was best exemplified by Ms Rooney's lack of engagement with the plaintiff's attempts to ensure finalisation of the administrations. I am satisfied that Sandhurst made no real effort to achieve a final distribution of the estates. As already mentioned, the wills of Richard and Dorothy were not adduced, but I regard it as axiomatic (and I will assume) that Sandhurst was at all times under a duty to act expeditiously in getting in the estates and finally distributing them. This is a duty binding any executor/administrator, unless the relevant wills and trusts provide otherwise. This certainly applied to Sandhurst as administrator on intestacy of John Snr's estate. The many decades of unfinished administration of John Snr's estate are anomalous and have not been explained. In the circumstances, I find that at the time of its acquisition by the defendant Sandhurst was in breach of its duties to administer that estate, as well as the two more recent ones, in a timely and efficient manner.

94 After the defendant's acquisition of Sandhurst, the Hunt & Hunt letter of July 2018 signalled a change in attitude and a much needed step (or attempted step) toward achieving finalisation. However, when that letter was met with disunity of response amongst the beneficiaries, the defendant should have, but failed to, facilitate any form of meeting or other consultative process to canvass the views of the beneficiaries and ascertain any common ground as to the future of the estate lands. In my view, this was a key cause of the litigation. Particularly when viewed in light of the long-standing role Sandhurst had occupied in the Burke family estates for so many decades, it is baffling that the defendant did not do more to attempt to ascertain whether a consensus could be reached on the future of the farming properties. Acting reasonably, it should have done much more to attempt to broker a commonly accepted approach.

95 Nor did the defendant seek judicial advice from the Court as to how to resolve the apparent deadlock. I do not find that the defendant had a duty to seek such advice, or breached such a duty in not seeking such advice, but merely observe that doing so early on would have been prudent. I return to that topic later, in the context of key issue 2(b) judicial advice.

96 In all the circumstances that applied up to July 2019 when this proceeding began, I find that the plaintiff acted reasonably in resorting to litigation in an endeavour to ensure progress in the administration of the estates. The relief she was then seeking in her originating motion was entirely reasonable, and the proceeding was something of a last resort in attempting to push the defendant into an appropriate level of responsiveness, engagement and proactivity in its administration of the estates.

97 In spite of the differences between Patricia on the one hand and Frank and Rene on the other, this point was recognised in a letter later written on behalf of Frank and Rene by their lawyers, OFRM. Under a heading 'Contribution from Equity Trustees for the legal costs of all parties', the letter included the following points relating to Frank and Rene's position with respect to this proceeding:

There is absolutely no doubt in the minds of Rene and Frank that the legal proceedings commenced by Trish against Equity Trustees were, not only justified, but were the only option available to her given the entirely unacceptable responses made by Equity Trustees during the long period leading up to the commencement of the claim. Rene and Frank support the claim by Trish that her legal costs should be paid in full by Equity Trustees...

In various documents it has been submitted by Equity Trustees that it had no involvement with the farming partnership and consequently the issues surrounding the farming partnership were of no concern. But as the report from Rodgers Reidy demonstrates, there were regular payments made by Sandhurst Trustees/Equity Trustees for the benefit of the partnership. I think it is reasonable for all the beneficiaries to believe that Sandhurst Trustees/Equity Trustees was still exercising oversight in relation to the estate assets, which included farming partnerships.

To use very plain language - the current mess in which the beneficiaries now find themselves is due predominantly to the lack of control and lack of any effective action by Sandhurst Trustees and Equity Trustees over many years the various estates rolled along when there was no proper reason for the administration of these estates not to be finalised many, many years ago.[107]

98 This was a fair and accurate description of what led to the litigation.

Early stages of proceeding - July 2019 to December 2019

99 The plaintiff commenced this proceeding by originating motion filed on 11 July 2019.

100 This led to markedly increased engagement and activity by the defendant in its attempts to finalise the administration of the estates.

(a) Aitken Partners (now acting for the defendant) sent seven letters to Prior Law.[108] The first, on 22 August 2019, noted that the plaintiff sought orders for an accounting, and enclosed statements of receipts and payments in respect of the estates of Dorothy and Richard to 14 August 2019. The statements were acknowledged to not be in the prescribed form the plaintiff sought in the order for accounting, but were provided 'for the purposes of progressing the matter'.[109]

(b) Prior Law sent four letters to Aitken Partners,[110] including correspondence about the form in which the financial information relating to the estates should be provided, and also seeking an inventory of real property held in John Snr's estate, current calculations and estimates of tax payable, and 'accounts in regards to the operation for the farming enterprise and reconciliation of each estate and the farming enterprise currently being managed by Francis Burke', referring specifically to parts of the originating motion.[111]

(c) Frank and Rene obtained independent representation via OFRM who corresponded with all parties ahead of an impending mediation.[112]

(d) On 21 August 2019, Moore J made orders for the filing of affidavits and referring the matter to mediation.

(e) In September 2019, the defendant sought preliminary taxation advice in relation to the estates from BNR Partners (BNR), who responded by letter dated 6 November 2019.[113]

First mediation and Heads of Agreement - 12 December 2019

102 The first mediation was held on 12 December 2019. This was, in effect, the first meeting attended by all interested beneficiaries at which matters of the kind identified in the Hunt & Hunt letter in July 2018 were discussed with the defendant.

103 After that mediation, the plaintiff, defendant and other beneficiaries signed a Heads of Agreement.[114] The Heads of Agreement set out a number of steps to be taken by the defendant, and to some extent by the beneficiaries, to progress the administration of the estates co-operatively. Notably, no specific agreement was reached as to the future of the Weston Vale and Bennetts properties, however it was recorded under the heading 'Beneficiaries Wishes' that 'Frank has indicated that he wishes to obtain [Weston Vale and Bennetts] properties as part of his entitlement to share in the estates'.[115] This point assumes great significance with respect to key issue (2) defendant's dealings with Weston Vale.

104 Omitting formal parts, it is worth extracting the Heads of Agreement in its entirety. It provided as follows:

HEADS OF AGREEMENT

1. John Burke (Senior) died on 24 December 1903.

2. The defendant (by its predecessor) obtained a grant of administration of the unadministered estate of John Burke Senior on 28 November 1938.

3. Richard Thomas Burke died on 7 June 2013.

4. The defendant obtained a grant of probate for Richard Burke's estate on 28 April 2015.

5. Dorothy Margaret Burke died on 21 September 2016.

6. The defendant obtained a grant of probate for Dorothy Burke's estate on 30 November 2016

7. The plaintiff seeks the administration of the estates of each of John (John), Richard Thomas Burke (Richard) and Dorothy Margaret Burke (Dorothy).

8. The following people are entitled to benefit from John's estate in the following proportions:

9. Sophie Louise Twaddle (Sophie) - 5/180

10. Nicholas John Twaddle (Nicholas) - 5/180

11. Rene Elizabeth Burke (Rene) - 34/180

12. Mary Christine McDougall (Mary) - 34/180

13. Louise Kerren Burke (Louise) - 34/180

14. Francis Michael Burke (Frank) - 34/180;

15. Patricia Margaret Burke (Patricia) - 34/180

16. The following people are entitled to benefit from Richard's estate in equal shares:

17. Patricia

18. Rene

19. Mary

20. Louise

21. Frank and

22. Annette Burke-Twaddle (Annette), who predeceased Richard and is survived by her children who will take her share:

a. Sophie Twaddle (Sophie); and

b. Nicholas Twaddle (Nicholas).

1. Mary died on 4 July 2018; her interest is now represented by Andrew McDougall (Andrew).

2. A mediation was held on 12 December 2019 at which the Plaintiff and the Defendant, Frank, Rene were present and legally represented.

3. Andrew, Louise, Sophie and Nicholas were also present, but not legally represented.

4. Frank, Rene, Andrew, Louise, Sophie and Nicholas are collectively called the Beneficiaries.

5. The Plaintiff arid the Defendant and the Beneficiaries have agreed to adjourn the mediation pending the following steps being undertaken.

BENEFICIARIES WISHES:

1. Rene has indicated that she wishes to obtain the following properties as part of her entitlement to share in the estates:
   1. "Muskerry" - 249 Barnadown-Myola Road, Myola, Vol 1216, Fol 025, Vol 6268, Fol 488 and Vol 8331, Fol 746
2. Frank has indicated that he wishes to obtain the following properties as part of his entitlement to share in the estates:
   1. "Weston Vale" - 551 Toolleen-Axedale Road, Axedale, Vol 1653, Fol 436, Vol 1297, Fol 274 and Vol 1640, Fol 846, Vol 6371, Fol 174,[116] Vol 6371, Fol 173,[117] Vol 1640, Fol 846[118] and Vol 8258, Fol 154[119]; and
   2. "Bennetts" - Muskerry East School Road, Muskerry, Vol 8258, Fol 714, Vol 7215, Fol 828 and Vol 7215 Fol 829
3. Louise has indicated that she wishes to obtain the following properties as part of her entitlement to share in the estates:
   1. "Eppalock Blocks on the Riverside" - Axedale-Kimbolton Road, Axedale, Vol 1026, Fol 140,Vol 687, Fol 275, Vol 6100, Fol 980.

IT IS HEREBY AGREED:

Properties:

1. The Defendant shall forthwith sell the following properties in accordance with the advice of a real estate agent and without having to obtain specialist advice:
   1. "Nolans" -Axedale-Crosbie Road, Toolleen; Vol 11659 Fol 175; and
   2. "Alan's Bush Block" - Axedale-Crosbie Road, Toolleen; Vol 11659 Fol 177
2. The defendant shall forthwith obtain a strategy from a suitably qualified real estate agent as to the sale of the following properties:
   1. Axedale-Kimbolton Road, Eppalock, Vol 11604, Fol 353, Vol 11604, Fol 352, Vol 804, Fol 614, Vol 687, Fol 201, Vol 685, Fol 000 and Vol 687, Fol 274 and Vol 11898, Fol 362
   2. Muskerry East School Road, Muskerry, Vol 11659, Fol 176
3. When requested to do so, the defendant will obtain up to date valuations of the land that any beneficiary wishes to retain in specie together with valuations of all agricultural licences associated with the properties held by the estates.
4. Subject to agreement between all parties as to the adjustment that may be required to be paid as a result of the value of any property that a beneficiary wishes to retain in specie, they will elect whether or not they wish to so retain the property no later than 28 April 2020 or within 28 days of any private tax ruling, whichever is the later.

1. Frank shall forthwith:
   1. Advise the purpose for the cheques drawn by him in the sum of $10,000 on 19 June 2013, $10,000 on 6 September 2013 and $5,000 on 14 October 2013
   2. Advise as to the sheep sold since 1 July 2018 to date comprising the number of sheep and sale price and provide police reports for those sheep that have been stolen
   3. Provide accounts and financial statements for the farming business for the year ending 30 June 2019, on or before 27 March 2020
   4. Provide proper books of account for the farming business for the period for which the taxation returns have not been completed and in particular the sale of sheep figures to 31 December 2019 by 27 March 2020
2. The defendant shall forthwith:
   1. Obtain valuations from a suitably qualified valuer of the farming business livestock, plant and equipment, wool, feed/grain, silos, vehicles and all other assets of the farming business on or before 27 March 2020
   2. Engage an independent forensic accountant to examine the accounts for the RT Burke estate and the farming business to determine the liabilities of the farming business to Richard's Estate, from the date of Richard's death to 30 June 2019 and provide such report to the parties on or before 27 March 2020.
3. The farming business shall be wound up on 30 June 2020; Frank shall be entitled to notionally purchase the livestock, plant and equipment held by the farming business at market value.

1. The defendant shall as soon as reasonably practicable:
   1. Engage BNR accountants to calculate the capital gains tax payable upon the disposal all of the real estate held by the estate and provide BNR with all such information including historical valuations as may be required for them to perform such calculations and for them to provide advice as to the quantum of any capital gains tax payable and if any exemptions or concessions are available
   2. The defendant shall provide all documents provided to BNR and their report to the parties
   3. Confirm whether any GST is applicable and payable in order to finalise the estates and, if so, quantify same
   4. Provide documents showing the calling in of the Howard Mortgage Fund into Richard's estate on or before 31 January 2020
   5. Provide an itemised estimate of commissions and disbursements that the defendant proposes to take for all work performed up to 31 December 2019 (including the fees and commissions of its predecessors) on or before 31 January 2020.
   6. Confirm whether there are any other liabilities including estimated further commission and disbursements (and quantify them) and what will be required for the winding up of the Estates.

1. In due course and as and when Richard's estate is in possession of funds sufficient to enable the following to occur:

1. The sum of $20,000, representing an equalisation of the payment of the Howard Mortgage Fund (being an asset of the estate of Richard), will be paid to each of:

1. Patricia 2. Rene 3. Andrew on behalf of Mary's estate 4. Sophie and Nicholas equally between them (being $10,000 each)
2. The parties reserve their rights as to the values of the properties that any party wishes to take in specie as agreed between them and in default thereof, an updated valuation, the cost of which shall be paid out of the estates.
3. Patricia preserves her position on the question of costs and foreshadows that she seeks payment of those costs from the defendant without recourse to the estates.
4. Patricia preserves her position on the question of whether the defendant should be required to disgorge costs and commission taken to date and forgo any further costs and commission.
5. The mediator's fee has been paid by the defendant using the proceeds of the estates and the plaintiff preserves her position in relation to having the defendant reimburse the estates for same.
6. The parties acknowledge that they will attend a further mediation if necessary, to resolve the outstanding issues.[120]

105 The mediation was adjourned. On 5 February 2020, Moore J made orders noting this and referring the proceeding for management by a judicial officer sitting in the Trusts, Equity and Probate List.

106 Shortly after the mediation, the defendant retained BNR to prepare an application for a private ruling by the Australian Tax Office (ATO) in respect of the land held by various of the Burke estates, including that of John Snr, to ascertain in particular any CGT issues.[121]

107 At this time, it appeared the defendant was finally becoming actively engaged in the administration of the estates. The steps agreed in the Heads of Agreement were all steps that would help the defendant to discharge its duties as executor/administration and trustee of the estates.

108 The Heads of Agreement, clauses 8 to 10, related to the partnership.

109 I am satisfied that, until the Heads of Agreement, the defendant had not previously been meaningfully involved in the partnership, with the exception of some bookkeeping tasks performed for Frank. Frank had been managing the operations of the partnership by an informal arrangement (largely historical and tacit) between the partners and former partners. As clause 8 indicated, all the protagonists recognised that the responsibility to provide proper financial accounts fell on Frank. It is clear from clause 8 that he had fallen behind in providing those accounts.

110 One of the questions that arose about Frank's management of the partnership was whether a debt had accrued to Richard's estate since Richard's death (as reflected by clause 9(b)). It was on this issue that the defendant's duties were directly engaged, because of the defendant's duties as executor of that estate, including the duty to ascertain and get in that estate's assets. In that context, it was perfectly understandable that the defendant assumed the role of arranging for a forensic accountant to review the partnership's finances to ascertain any such debt, pursuant to clause 9(b).

111 Even more significantly, the defendant agreed that it would have the partnership's assets valued, pursuant to clause 9(a), by late March 2020. Clause 10 provided that the partnership would be wound up by the end of June 2020, without specifying a role for the defendant. However, the defendant had already begun to assume a role in the winding up, insofar as it had undertaken to obtain a valuation of its assets. On a natural reading of clauses 9(a) and 10 together, this was to ascertain the values at which Frank would acquire those assets.

112 Some months later, in correspondence in February 2021, the defendant said, or perhaps confirmed, that it would be the partnership's agent for the purposes of its winding up. During the dispute, the defendant contended that it only had this role from 5 February 2021, and that this was the extent of its involvement in the partnership. I will return to this point later.

Interim procedural steps/investigations and dissolution of the partnership - December 2019 to February 2021

113 Following the first mediation and throughout 2020, extensive correspondence was exchanged between the parties and beneficiaries relating to topics including:

(a) compliance with the Heads of Agreement, and in particular the sale of estate land;[122]

(b) the engagement of BNR and of Rodgers Reidy in relation to taxation and accountancy matters (discussed in more detail below);[123]

(c) the defendant's commission applicable on the estates' assets;[124]

(d) multiple occasions of alleged theft of sheep from Weston Vale and Bennetts;[125]

(e) the valuation of current livestock and equipment, and Frank's willingness to purchase the plant and equipment from the farming business/partnership (and whether he would purchase all of it);[126]

(f) Frank's alleged mismanagement and misuse of finances from Richard's estate, vehicles and other estate property, and unreported sales of sheep that had been owned by the partnership;[127]

(g) Louise's concerns and concessions (representing a desire for finality);[128] and

(h) pushing back the date for the winding up of the farming business/partnership to 30 September 2020, and then 31 October 2020.[129]

114 Andrew (representing Mary's estate) obtained representation from HQ Law, who participated in this correspondence.[130]

115 In February 2020, the defendant engaged a forensic accountant, Gary Fettes of Rodgers Reidy, to conduct the investigations required under the Heads of Agreement to determine the liabilities of the partnership to Richard's estate.[131]

116 Mr Fettes produced a report which indicated that, as at 30 June 2019, the farming business (that is, the partnership) was indebted to Richard's estate in the sum of $249,280.60 (2020 Fettes report).[132]

117 After reviewing the 2020 Fettes report and the partnership's financial and bank statements, the plaintiff expressed further concerns to the defendant that it appeared that Frank had used partnership funds to pay for personal items. The plaintiff asked Mr Fettes to review the statements and determine any necessary adjustments to Frank's partnership account. The plaintiff provided a detailed analysis in support of the request.[133]

118 In response, the defendant instructed Mr Fettes to undertake further forensic investigations, which included collecting materials from the plaintiff resulting from her own investigations.[134]

119 In my view, this was another step toward the defendant taking on an expanded role, encompassing issues arising from the partnership. I do not intend any criticism of the defendant for doing so: given the way the partnership was interwoven with the estates, it was efficient for the defendant to expand the scope of its role in this way. I found it hard to understand the arguments on behalf of the defendant at trial that sought to distance the defendant from the partnership. The defendant was closely involved with the efforts made to understand the partnership's financial arrangements, and is to be commended for this.

120 On 5 May 2020, on behalf of Frank and Rene, OFRM wrote to Aitken Partners, Prior Law and the other beneficiaries with reference to the actions proposed under the Heads of Agreement.[135] Rene confirmed that she would take Muskerry and Frank confirmed he would 'retain' Weston Vale. OFRM said that Rene and Frank would combine to take Bennetts with 'the fraction between themselves to be determined in due course'.[136]

121 OFRM's letter also addressed the termination of the partnership, gave a stock count of 2,471 sheep, indicated that Frank wished to retain farming equipment, addressed certain issues relating to Frank's remuneration and expenses for a vehicle, and referred to CGT on the properties.[137]

122 This was the letter I noted earlier in my reasons, in connection with the question of what led to the commencement of the proceeding.

123 OFRM sent a further letter on 17 November 2020, following information from Mr Fettes and updated instructions from Frank, outlining Frank's views as to accounting issues in particular for financial years 2015 to 2019.[138]

124 The dates discussed by the parties for the winding up of the partnership (referred to in paragraph 113(h) above) passed without action in this regard being taken, and it had still not been wound up by December 2020. Thus, on 16 December 2020, the plaintiff requested that a notice be published in the Victorian Government Gazette dissolving the partnership with effect from 31 December 2020.[139] A notice in such terms was published in the Victorian Government Gazette on 24 December 2020.[140]

125 Also during this period, on 15 December 2020, the ATO issued a private ruling (in response to the application by BNR, referred to in paragraph 106 above), in relation to John Snr's estate, as well as three other Burke family estates which were not the subject of this proceeding.[141] Relevantly, the private ruling applied to Weston Vale, but did not apply to Bennetts, as Richard's estate was not one of the estates considered. The private ruling was circulated to all beneficiaries by letter from Aitken Partners on 21 December 2020.[142] The private ruling related to the period of 1 July 2020 to 30 June 2021. It determined that each property in question (including Weston Vale) was a 'pre‑CGT asset' and thus the tax liabilities on any sale of these properties would be lower, with any capital gain or loss capable of being disregarded under the Income Tax Assessment Act 1997 (Cth).[143]

126 The ATO's private ruling only specified this outcome in the event of 'sale' of Weston Vale. Once this was appreciated, from this point on, the prospect of an in specie transfer appears to have been abandoned by the defendant and beneficiaries. The mode of disposition of Weston Vale become in effect a choice between sale to Frank (in circumstances where some of the consideration would be achieved by setting off his entitlements from the estates) and sale on the open market.

127 On about 17 December 2020, the defendant obtained valuations of Weston Vale and other estate properties. The valuation report was sent to the beneficiaries on 21 December 2020.[144]

128 The parties corresponded frequently in January 2021 and exchanged a significant number of documents, including accounting and taxation records, in preparation for both a second mediation and the production of a further report from Mr Fettes.[145]

129 In January 2021, Mr Fettes produced an initial report on the adjustments (January 2021 Fettes report).[146] The January 2021 Fettes report concluded that for the financial years 2013 to 2019, Frank may have benefited personally from the partnership above his entitlement by a total of $64,910.[147] The report also noted that the partnership's balance sheet recorded a debt owing by Frank that would need to be updated.

130 The plaintiff then undertook a further analysis of her own in respect of the accounts, including to 31 December 2020, which she gave to the defendant and the defendant again provided to Mr Fettes.[148]

131 On 1 February 2021, Mr Fettes produced a letter with updated adjustments to the January 2021 Fettes report (February 2021 Fettes update letter). He concluded that Frank had possibly been overcompensated by approximately $312,485 and that, including drawings, he potentially owed the Partnership a total of $427,027.[149]

132 The estimates of Frank's debts to the partnership calculated in the February 2021 Fettes update letter remains a significant document, particularly with respect to key issue (2) defendant's dealings with Weston Vale.[150]

Second mediation and consent orders - February 2021

133 A second mediation was held on 2 February 2021 as a virtual meeting attended by the plaintiff, defendant and other beneficiaries.

134 On 5 February 2021, Louise wrote to the defendant complaining that she had not been given a fair chance to express her views at the mediation and seeking a response from the defendant.[151]

135 On the same day, a letter was sent from Aitken Partners to Prior Law with the subject heading 'Points of action'. The letter summarised the steps following the second mediation that the defendant 'has taken and proposes to take in relation to the matters that need to be dealt with'.[152] Under the heading 'The land', point 1 of the letter stated that all estate land other than properties 1 to 3 (Weston Vale, Bennetts and Muskerry) were in the process of being 'placed on the market' with Elders Real Estate Bendigo (Elders) retained. Point 2 of the letter proposed a transfer to the beneficiaries in equal proportions of the land subject to the Solar Block lease unless the beneficiaries presented a uniform agreement to the alternative. Point 4 of the letter stated that the properties Weston Vale and Bennetts would be held until 21 March 2021, with Frank and Rene to be:

... given the opportunity to put forward any further proposal for those properties or either of them to be taken by them or either of them which proposals can be considered by the beneficiaries. If no such proposal is made, or if any such proposal shall not be acceptable to the beneficiaries then these properties or the one which is not subject to agreement will be placed on the market for sale along with the remaining land.[153]

136 The letter proposed steps for the defendant to be the agent for the winding up of the partnership. Under the heading 'farming partnership', the defendant proposed to take custody from Frank of any bank account proceeds, to get in proceeds of sale of other partnership assets, obtain a revaluation of plant and equipment from Kevin Hicks Real Estate by the end of February, and (in point 8 of the letter):[154]

Equity as agent for the partners shall arrange for McKean McGregor to inspect the livestock, count them, advise the partners upon the appropriate timing for the sale of the livestock and effect those sales.

137 Aitken Partners' letter dated 5 February 2021 also set out a process for Frank to respond to any of the partnership account adjustments proposed by Mr Fettes.

138 On 8 February 2021, Aitken Partners wrote to the other beneficiaries to similar effect.[155]

139 On 9 February 2021, Prior Law responded to Aitken Partners' letter dated 5 February 2021, disagreeing (amongst other things) with the proposal in relation to the land the subject of the Solar Block lease (on the ground that the proposal would force the plaintiff into further litigation in circumstances where she did not consent to or know about the lease being granted in the first place), stating that the defendant should seek judicial advice on the topic, and noting in relation to Weston Vale and Bennetts:[156]

Our client looks forward to any further proposal from Frank and Rene and failing any acceptable proposal then the properties should be sold. We await your advice as to any proposals by Frank.

140 On 12 February 2021, Aitken Partners wrote back to all the beneficiaries on the topics previously mentioned as steps it proposed to take.[157] As to the Solar Block, the letter noted that 'as one beneficiary has now indicated that a transfer in specie is unacceptable, the property will need to be sold ...Equity Trustees would wish to avoid the need to make a separate application to the Court ...'.

141 Of particular relevance to my analysis of key issue (3) Frank's remuneration, the letter also addressed the 'Renumeration for Frank Burke' in circumstances where Frank raised the point that he had been 'effectively managing the property' since the termination of the partnership on 31 December 2020. The letter stated:

Our view is that it would be reasonable for Frank Burke to be remunerated until the livestock has been sold at least, based upon the time that he spends in effectively managing the property. He would be required to submit time sheets or similar to verify the time spent.

We need your response to this issue which is now a pressing one. If Frank Burke were not to continue to work on the property as he presently is, the former partners would have great difficulty in the short term in managing the property and its livestock as well as securing its other assets.

142 Frank had been paid $90,000 per annum by the partnership to conduct its operations.[158] In effect, Frank was seeking that this continue as a payment by the defendant from the assets of the partnership, assets that would otherwise go to the beneficiaries and/or estates.

143 It is not clear precisely when Frank began to receive $90,000 per annum from the partnership/estates to manage the estate properties following the winding up of the partnership (and whether the remuneration was backdated to cover the period from the dissolution of the partnership). However, I am satisfied Frank has received about $90,000 in annual remuneration from the partnership assets/estates, continuously, since at least some time in 2021. Mr Tunks gave evidence on behalf of the defendant that:[159]

Following the receipt of the Rodgers Reidy reports by Mr Fettes of that firm dated 22 January 2021 and 27 July 2021, Equity Trustees (as winding up agent) caused the Partnership to pay Francis Burke remuneration at the rate of $90,000 pa gross, including superannuation.

144 The evidence that the defendant caused the partnership to pay Frank's remuneration is puzzling, because the partnership was no longer in existence. So Frank's remuneration was presumably paid by the defendant from the estates, or at least from money held by the defendant as the winding up agent of the partnership (and that money had been earned by the partnership, but was in effect an asset of the beneficiaries and/or estates).

145 The letter dated 12 February 2021 also noted that after consultation with Frank the defendant proposed to use Nutrien Agricultural to sell the remaining sheep. The letter noted that the defendant was only able to receive the proceeds from the partnership bank account and livestock sales with the direction of the partners.

146 Prior Law responded to Aitken Partners by letter dated 15 February 2021 agreeing to most of the proposals, subject to detailed conditions in relation to the proposal for the sale of sheep by Nutrien, and reserving the plaintiff's position on Frank's remuneration.[160]

147 On 15 February 2021, proposed minutes of consent orders signed on behalf of the plaintiff and the defendant were emailed by Prior Law to the Court (the consent minutes). The 'Other Matters' section of the consent minutes recorded that 'some agreement as to the further administration of the estate' was reached as recorded in the consent minutes, as follows:

1. Upon the Court being advised that a further mediation was held on 2 February 2021 at which the plaintiff, the defendant and the beneficiaries of the estate were present. Although the matter has not fully resolved, there has been some agreement as to the further administration of the estate in accordance with the relief sought by the plaintiff in the Originating Motion which agreement is recorded in these Orders.
2. The defendant proposes to administer the estate as follows, pending further orders:

1. All land other than properties 1 to 3 and 6(b) in the "land distribution statement" prepared by the defendant shall be placed on the market to be sold in accordance with the advice of Elders Real Estate as to the price range, method of sale and how the land should be offered for sale. Elders Real Estate's advice will be circulated when received.

...

1. The properties known as "Weston Vale" and "Bennetts", (properties 1 and 2 in the "land distribution statement" prepared by the defendant), will be held by the defendant until 21st March. Frank Burke and Rene Burke will be given the opportunity to put forward any further proposal for those properties (or either of them) to be taken by them (or either of them) in the administration of the estates, which proposals can be considered by the defendant in consultation with the beneficiaries. If no such proposal is made, or if any such proposal shall not be acceptable to defendant and all of the beneficiaries, then these properties (or the one which is not subject to agreement) will forthwith be placed on the market by the defendant for sale along with the remaining land.

...

1. The defendant as agent for the partners shall arrange for Nutrien to inspect the livestock, count them, advise the partners upon the appropriate timing for the sale of the livestock and effect those sales.
2. The defendant shall instruct Kevin Hicks Real Estate to revalue the plant and equipment of the partnership before the end of February. ...[161]

148 In her pleading, the plaintiff alleged that '[a]greement was reached' on the above steps.[162] This was denied by the defendant, and in particular the defendant denied any intention to create legal relations. The defendant characterised the consent minutes as recording its then proposal for future administration, in which the plaintiff concurred.[163] In its submissions in this proceeding, the defendant disputed that an 'agreement' was reached at the second mediation or that the terms of any such agreement are reflected in the consent minutes. The plaintiff submitted that even if no formally binding agreement was reached, there was an agreed proposal about future dealings with Weston Vale. This point is relevant to my consideration of key issue (2) defendant's dealings with Weston Vale.

149 On 17 February 2021, Keith JR made orders adjourning the proceeding for management before himself, with liberty to apply. The 'Other Matters' section records that a copy of the consent minutes was placed onto the Court's file; however the 'Other Matters' in Keith JR's Order merely noted that the parties had agreed on some matters and did not adopt the text of the 'Other Matters' in the consent minutes.

Steps taken regarding deadline in the consent minutes - 18 February 2021 to 21 March 2021

150 As emphasised in the extract above, the consent minutes contained a purported deadline, being 21 March 2021. On one view of the consent minutes, this was the date by which Weston Vale and Bennetts were to be placed on the open market if the defendant could not arrange for their disposition within the Burke family. On another view, this was the date by which Frank and Rene was to put forward a proposal. On either view, there was to be consultation on any such proposal and if any beneficiary disagreed, the properties were to be 'forthwith' placed on the market.

151 In the month before this deadline, the following events (among other matters) occurred (with significant correspondence surrounding each of them):

(a) Nutrien was engaged to facilitate the sale of livestock that had been run on the land of the estates, with sales occurring on 22 February, 25 February and 5 March 2021.[164] The total proceeds of these sales were $277,241.52. The plaintiff was concerned as to how many sheep might have remained after these sales, due to the alleged lack of proper counting.[165] This is of relevance to key issue (4) partnership sheep.

(b) Frank made enquiries regarding his salary and obtaining finance from National Australia Bank (NAB) to purchase Weston Vale, and sought a $1 million allocation of estate funds from the defendant.[166]

(c) The plaintiff raised challenges to Frank's salary and expenses based on Mr Fettes' reports.[167]

(d) Mr Fettes furnished two further reports dated 4 and 11 March 2021 in respect of financial adjustments between Frank and the partnership (4 March 2021 Fettes report and 11 March 2021 Fettes report). Aitken Lawyers' covering letter stated that the amount of the adjustment against Frank (that is, a proposed adjustment for certain drawings forming a part of a larger set of proposed adjustments) was reduced to $61,377.00 and the matters relating to other expenses were 'still being considered', and the 11 March 2021 Fettes report set out a replacement table 1.14 and explanatory text for paragraph 1.14 of the February 2021 Fettes update letter, stating:

After assessing the period to 31 December 2020 it is my opinion Frank has possibly been over compensated by approximately $309,055. Including the equity account (drawings), Frank Burke's potential owes [sic] the partnership $423,597 as detailed in the following table ...'.[168]

(e) OFRM by letter dated 18 March 2021 'confirm[ed]' to the defendant that:[169]

(i) Rene elected to take Muskerry at a value of $1,175,000 as a distribution from Richard's estate;

(ii) Frank elected to take Bennetts at a value of $750,000 as a distribution from Richard's estate; and

(iii) Frank elected to purchase Weston Vale at the 'market value' of $3,440,000, subject to a loan from NAB, and requested a contract of sale for Frank to purchase Weston Vale, noting:

... we cannot yet quantify the loan as Equity Trustees have not advised Frank's notional allocation. Despite numerous requests, this has not yet been provided.

(f) Mr Tunks gave evidence that '[t]he letter from O'Farrell Robertson McMahon was copied to the plaintiff's solicitor and to each beneficiary',[170] but (unlike many other items of correspondence tendered in evidence) the letter does not state it was copied to these other parties at the time, and I do not accept Mr Tunks' assertion that it was. If it had been, I am satisfied that the later correspondence from Prior Law (on 8 April 2021, mentioned below) and the responding letter from Aitken Partners (on 9 April 2021) would have referred to it.

(g) The above letter of OFRM dated 18 March 2021 is significant to my analysis of key issue (2) defendant's dealings with Weston Vale. In his written evidence, Mr Tunks described it as an offer made before 21 March 2021 in accordance with the proposed approach set out in Aitkens Partners' letter to the beneficiaries dated 5 February 2021,[171] and in his oral evidence he agreed with propositions of the defendant's Senior Counsel that it was 'acceptable' to the defendant,[172] and it was a 'firm offer'.[173]

(h) Frank obtained a letter of comfort from the defendant, dated 19 March 2021, regarding his expected benefit from the estates to present to NAB in order to obtain a loan. The letter relevantly estimated Frank's gross benefit at $1,750,000, noted the disputed claim that he owed the partnership money, and said, regarding acquisitions of estate properties:[174]

You may decide to acquire portions of the land owned by the Burke Estates, subject only to approval by the other beneficiaries, [sic]. If this occurs:

• the selected land will be allocated to you at its current market value...; and
• you will need to use your own funds (including borrowed funds, if applicable) to pay:
• to the Burke Estates the amount by which the value of the selected land exceeds the value of your benefits from the Burke Estates
• stamp duty associated with acquiring the land, to the extent that the value of the selected land exceeds the estimated value of your benefits from the Burke Estates.

152 Mr Tunks gave evidence, and I accept, that the letter of comfort the defendant provided to Frank was unsuccessful, in that:

[Frank's] overall expected benefit was insufficient for his banker and Equity Trustees terminated its discussions with him about Weston Vale at that stage.

153 Mr Tunks was not explicit about when this occurred, or when the defendant learned of this and terminated its discussions with Frank. For reasons that will become apparent, I infer that this occurred between 9 April and 11 May 2021.

154 I was told that the Muskerry property 'was appropriated to Rene Burke in February 2021'.[175] No title search was tendered in evidence recording the precise date of the transfer from the defendant to Rene, but this is immaterial. Putting that property to one side, by the date of 21 March 2021 referred to in the consent minutes, the other properties referred to in paragraph 151(e) above continued to be held by the defendant, and it appears that no proposals about transferring them to Frank had been put to all the beneficiaries for their consideration (despite recital B(iv) of the consent minutes).

Arrangements for sale of properties and other developments - 22 March 2021 to 22 October 2021

155 In about late March 2021, Elders was engaged by the defendant to appraise some of the estates' properties and make recommendations on sale. On 24 March 2021, Elders wrote to the defendant with its recommendations,[176] limited to the Eppalock blocks on the Axedale-Kimbolton Road and Muskerry (first Elders recommendation). Aitken Partners forwarded the first Elders recommendation to the beneficiaries on 1 April 2021; the covering letter mentioned that, because of the transfer of the Solar Block to Louise as part of her share of the estates, it was not included.[177] No mention was made of the Weston Vale properties or Bennetts.

156 On 8 April 2021, Prior Law wrote on behalf of the plaintiff to Aitken Partners informing the defendant that, because of the delay, the plaintiff no longer consented to Weston Vale being sold to Frank by private contract and requested that it be sold by public auction.[178]

157 The defendant responded through Aitken Partners on 9 April 2021, characterising this as a 'change of mind' and asserting it came 'too late':

Unfortunately your client's change of mind is too late. Proceeding on the basis of the approval of all of the beneficiaries, Equity Trustees offered the properties Bennetts and Weston Vale to Frank Burke at the revaluation figures. He accepted those offers and is in the process of getting his finance organised.[179]

158 Mr Tunks' evidence about this letter was confined to accepting a proposition put by the defendant's Senior Counsel that this was the defendant's 'position' at the time.[180] He gave no evidence that the defendant had in fact offered the properties to Frank at the revaluation figures. The effect of the oral evidence led from him was, rather, that the letter from OFRM was a 'firm' offer on behalf of Frank that was 'acceptable' to the defendant. Mr Tunks did not give any evidence that the defendant in turn accepted that offer.

159 There are a number of noteworthy things about the letter of Aitken Partners dated 9 April 2021 that are relevant to key issue (2) defendant's dealings with Weston Vale.

160 First, the response suggests that the defendant believed that Frank was still negotiating about finance with his bank, so the evidence of Mr Tunks that Frank failed to obtain finance and the defendant 'terminated' its discussions with him that I noted earlier must relate to a time after 9 April 2021.

161 Secondly, the response asserts that the defendant 'offered the properties Bennetts and Weston Vale to Frank Burke at the revaluation figures' and that Frank had 'accepted'. This reads like an assertion that an 'offer' at particular values had been made by the defendant, and had been accepted, with the natural outcome that a binding agreement had been made. However, Mr Tunks' evidence did not identify any such 'offer' by the defendant, and I have not identified it amongst the exhibits. I infer that no such 'offer' had been made by the defendant. Further, if an offer had been made, this would have been contrary to the proposal in the proposed minutes of consent order, which I interpret as requiring any proposal by Frank and Rene to be made before 21 March 2021 and to be put (forthwith) to the other beneficiaries, and if unacceptable to them, for Weston Vale to be forthwith placed on the open market. The proposal was not particular about how long might be allowed for the other beneficiaries to be consulted, but it clearly gave them a right of veto. The correspondence between the defendant and OFRM in March 2021 had not been disclosed to the other beneficiaries and there was no consultation with them.

162 Thirdly, as the plaintiff submitted to me, it was wrong to characterise the plaintiff's letter of 8 April 2021 as a 'change in mind'. By 8 April 2021, the deadline for a proposal from Frank to purchase Weston Vale to be received and put to the other beneficiaries for consultation had passed. The delay occasioned by Frank's negotiations with his bank was beside the point. The gist of the proposed minutes of consent order, on my reading, was that Weston Vale would be forthwith put on the market if the proposal had either not been received by 21 March 2021, or (if it was received in that time) that upon urgent consultation with the beneficiaries it was not acceptable to all. There was no mention of delaying this process to allow for negotiations about finance. It was not the plaintiff who had changed her mind. By implicitly allowing more time for Frank to put a proposal, it was the defendant which was changing its mind.

163 The defendant submitted that the proposed minutes of consent order did not amount to an 'agreement'. Perhaps, in formal contractual terms, this was so. However, the defendant made extensive submissions about the consent minutes which went further. Those submissions gave me the impression that the defendant treated the representations it had made about its proposed conduct of the sale of Weston Vale as matters from which it was free to resile at will. Mr Tunks' evidence reinforced that impression. The issue identified by the defendant's submissions, as to whether there was an intention to create legal relations and an agreement that was binding in contract law, was somewhat beside the point. The submissions sought to elevate an irrelevancy to centre stage. What mattered more was that the defendant had committed to a course of action, told the beneficiaries it would take that course of action, and it then resiled from that commitment and representation.

164 In short, I am satisfied that, by its lawyer's letter dated 9 April 2021, the defendant acted inconsistently with its previous representation and proposal as to how an important issue in the administration of the estates (the Weston Vale sale) would be handled. I am also satisfied that the terms in which it did so sought to downplay the significance of its renunciation and reprobation of that proposal. Further, in my view, the letter communicated this to the plaintiff in an unduly antagonistic way by incorrectly accusing the plaintiff of changing her mind.

165 At about this time and during the ensuing period, the parties and beneficiaries corresponded significantly, including regarding:

(a) the sale of the remaining sheep, a 20-week agistment of sheep on estate land by a farmer known to Nutrien, and other sheep-related matters;[181]

(b) the potential transfers to Louise of the Solar Block and to Rene of Muskerry;[182]

(c) revaluing plant and equipment;[183]

(d) the reduction of the partnership adjustment payable by Frank by approximately $8,800 (Prior Law appeared to have liaised with Mr Fettes in an ad hoc manner in regard to this);[184]

(e) partnership assets and the winding up of partnership activity;[185]

(f) the salary and/or payments paid by the defendant to Frank;[186]

(g) whether to give Frank more time to obtain finance to purchase Weston Vale, particularly given the apparent taxation consequences of the ATO private ruling, or whether to proceed to auction (the latter being the plaintiff's wish following the deadline contained in the consent minutes, as well as Andrew's),[187] and

(h) in the context of disagreement on the sale or apportionment of Weston Vale and general delay, whether to apply to the Court by way of the liberty to apply order in Keith JR's orders of 17 February 2021, or whether Frank and Rene would bring a claim for specific performance of the Heads of Agreement.[188]

166 Andrew's lawyers, HQ Law, made several attempts to follow up as to the progress of the administration of the estates with the defendant.[189] In particular, on 16 April 2021, HQ Law wrote to all parties and beneficiaries expressing strong concerns, including stating as follows:

It is our client's strong view that Frank has had ample opportunity to complete this process and that the other beneficiaries should not be expected to continue to be at a disadvantage as a consequence of his inaction and/or inability to obtain finance... [U]nless Frank can now confirm unconditional finance approval has been obtained, the Executor should commence making arrangements to have the property prepared for sale.[190]

167 On 6 May 2021, Aitken Partners wrote the beneficiaries as follows:

As we have not heard back from Frank Burke with regard to the approval or otherwise of the loan that he is seeking to proceed with the purchase of the Weston Vale land, Equity Trustees has instructed the agents to proceed with the sale of the property on the open market. Any beneficiary will be able to participate in the process and offer to purchase the property. Should Frank Burke's position with regard to his loan be clarified and he makes an offer to purchase the property, that will be referred to beneficiaries generally.[191]

168 This communication is important to my analysis of key issue (2) defendant's dealings with Weston Vale, for two reasons. First, it amounted to a reversion by the defendant to the position it had committed to in the proposed consent minutes: namely, to take steps to sell Weston Vale on the open market in the absence of an acceptable offer from Frank by 21 March 2021. Secondly, it was a further representation to the beneficiaries that Weston Vale would be sold on the open market.

169 Further to that second point, the letter contained a statement of fact that the defendant had already instructed its agents to that effect. However, some days were still to pass until the defendant sought a proposal from Elders in relation to the sale of Weston Vale (on 11 May 2021).

170 Further and more significantly, after a further period of delay, the defendant later in 2021 embarked on a separate correspondence with Frank's lawyers that was inconsistent with the renewed commitment to sell Weston Vale on the open market.

171 In her letters of 7 May and 7 July 2021, Louise said she did not agree with putting Weston Vale on the market, queried why other properties which were uncontentious were not being sold, and expressed concerns with the noncompliance with the Heads of Agreement.[192] Whilst Louise continued to express concerns around the administration of the estates (and in particular her purportedly pending receipt in specie of the Solar Block), she also considered it unfair for Frank to be subjected to a tight timeframe to obtain finance when the defendant had been so unresponsive or slow to respond to all matters concerning the estates.

On 11 May 2021 Equity Trustees requested Elders Real Estate to provide a proposal to [sic] for the sale of Weston Vale.[193]

173 I refer to Mr Tunks' previous evidence about Frank failing to obtain finance. I infer from Mr Tunks evidence that the defendant made its request to Elders on 11 May 2021 that it was only at about this date that the defendant learned (or perhaps deduced) that Frank's attempts to obtain finance had failed.

(a) On 10 May 2021, Prior Law wrote a letter to Aitken partners (copied to all beneficiaries) referring to the requirements in the consent minutes.[194] Relevantly, the letter referred to:

(i) item 2 of the minutes, requiring the defendant to consult with Edify as to the value of the Solar Block and report back to the beneficiaries, saying this had not occurred and so it was premature to say that the plaintiff was opposing an in specie distribution;

(ii) item 4, regarding Weston Vale and Bennetts and the opportunity for Frank and Rene to put forward proposals to purchase the properties, with the plaintiff expressing agreement with the plan that Weston Vale be put up for sale 'given the long period in which this has gone on without resolution';

(iii) item 7, regarding the holding of ancillary proceeds from the partnership being held in an account set up by the defendant; and

(iv) item 8, regarding the defendant facilitating the counting and sale of sheep in consultation with the beneficiaries, and asserting that there were still sheep left on the properties and the plaintiff had not been consulted about their sale.

(b) By a letter on 10 May 2021 to Prior Law (not copied to other beneficiaries), the defendant reiterated its proposal to proceed with the sale of Weston Vale on the market, in spite of requests from various beneficiaries to allow more time for Frank to make a proposal:

... Louise Burke, Sophie Twaddle and Nicholas Twaddle have all indicated that they consider that Frank Burke should be allowed additional time to proceed with the purchase of Weston Vale. At this stage, Equity Trustees is taking steps to have that property put on the market for sale.[195]

(c) In a letter copied to the other beneficiaries on 10 May 2021, OFRM on behalf of Frank and Rene took issue with the defendant selling Weston Vale on the market, argued that the defendant seemed to be preferring the views of two beneficiaries and disregarding the views of the remaining five, and referred to the Heads of Agreement, arguing that more time should be afforded.[196]

(d) In two letters copied to all beneficiaries on 13 and 14 May 2021, HQ Law on behalf of Andrew in effect supported the plaintiff's position on the need to put Weston Vale on the market and the unsatisfactory presence of sheep on the properties.[197] The first letter referred to sheep being observed on Weston Vale, rams being observed on Muskerry, and the appearance that land had been cropped. The other letter made a series of arguments supporting immediate sale, as notified by the defendant in Aitken Partners' letter on 6 May 2021, including the following:

The requirements of Frank's prospective lender, most notably the certainty required surrounding the adjustments, may take further years to resolve, if the matter is to proceed with the delays it has to date. Our client (and the other beneficiaries) should not be expected to allow Frank to occupy the Estate land for any further time, to their own ongoing detriment. The value of the land continues to increase (despite Frank being locked into the valuations acquired in late 2020), whilst the administration of the Estate remains unable to progress.

(e) By a letter on 14 May 2021 (not copied to other beneficiaries), Prior Law made a further request of Aitken Partners for information regarding the valuation of the Solar Block (including from Edify), the sale of sheep, and Frank's purchase of a vehicle.[198]

(f) On 21 May 2021, OFRM wrote a letter (not copied to other beneficiaries) setting out a proposal for Frank and Rene to acquire the properties they wished to acquire from the estates.[199]

(g) On 25 May 2021, Aitken Partners sent all beneficiaries a detailed response letter dated 24 May 2025[200] on behalf of the defendant to Prior Law's letters of 6 and 10 May 2021, refuting any suggestions that the defendant had not been responsive to requests for information, providing details of past correspondence, and taking issue with the degree of direction the beneficiaries were attempting to exert over the administration:

With the greatest of respect to everybody, the specific prescription of what is to be done in the administration in relation to what are, in the scheme of things, relatively minor matters, is simply not practical in the administration. For example, in relation to the sale of the livestock, EquityTrustees has followed the advice of Nutrien in relation to the timing of the sale of the sheep. Account has been taken of animal husbandry issues and Nutrien's advice about maximising the return on the sale of this livestock. It was for this reason that the sale of all of the sheep on the property was not completed by the end of February 2021 and that there remain some sheep on the property.

(h) On the sale of Weston Vale and the future of Bennetts, Aitken Partners' letter of 24 May 2021 stated:

Weston Vale has been placed with the agent for sale on the open market. If Frank Burke is able to secure funding and wishes to put a proposal for purchase, he can do so and the beneficiaries will be informed.

...

As I understand it there is no objection to Frank Burke receiving Bennetts as part of his entitlement on the same basis as Rene has been permitted to receive Muskerry. As I understand it, Frank Burke's decision in relation to Bennetts depends very much on the ultimate outcome of his attempts to acquire Weston Vale. If he were to take Bennetts the credit allowed against the purchase of Weston Vale would be reduced. Bennetts has not yet been placed on the open market.

(i) Prior Law responded by a letter to Aitken Partners on 31 May 2021,[201] noting the Patricia's 'immediate concerns' were 'the sale of Weston Vale and the counting and sale of livestock', and reiterating her arguments and rehearsing the correspondence that had been exchanged on those topics at some length, over three pages, and then addressing other topics more briefly. Prior Law then followed up with a further letter on 7 June 2021, explaining that the list of 'some of the pertinent issues' in the letter of 31 May 2021 had not been exhaustive, and adding various others.[202] In my view, even taking the principle summarised in paragraph 30(e) above into account, the defendant was under no duty to respond to these letters. They are examples of repetitive and prolix correspondence from the plaintiff.

(j) On 23 June 2021, Aitken Partners wrote to OFRM and stated that the defendant had 'decided that the appropriate course is for [Weston Vale] to be sold on the open market', given the disagreement between the beneficiaries, and Frank and Rene were welcome to participate in the sale process.[203] In effect, this was a rejection of OFRM's 21 May 2021 proposal.[204]

175 Mr Tunks gave evidence that from 1 June 2021 for twenty weeks (until about 21 October 2021) the defendant entered into an 'agistment arrangement in respect of the Estate properties', for which it received $9,655.80. He did not specify who the contracting party was or precisely which properties (or paddocks) were agisted. He said this was the only time the defendant arranged agistment of estate properties.[205] I infer the arrangement was with the farmer known to Nutrien, mentioned in paragraph 165(a) above.

176 On 31 May and 26 July 2021, further sales of sheep were facilitated by Nutrien.[206]

177 Mr Tunks gave evidence, and I accept, that the proposal for sale of Weston Vale on the open market (that the defendant had requested from Elders on 11 May 2021) was received from Elders on 7 July 2021.[207] Elders' letter dated 7 July 2021 recommended that Weston Vale be sold as three separate lots (second Elders recommendation).[208]

178 On 16 July 2021, Jason Lamb (Senior Estate Manager for the defendant) emailed Elders advising as follows:

Western Vale [sic] has again become subject to negotiations between lawyers representing the estates and representing the various beneficiaries. As such, we need to put this on hold for the moment. [209]

179 However, the second Elders recommendation, concerning sale of Weston Vale, was accepted by Equity Trustees on 23 July 2021.[210] On 23 July 2021, Aitken Partners sent the second Elders recommendation to the beneficiaries,[211] whose responses were divided as to the proposal in relation to Weston Vale.[212] On 24 July 2021, Mr Lamb emailed Elders again, this time advising that Elders could now proceed with the sale of Weston Vale as per the second Elders recommendation.[213]

180 On 29 July 2021, Mr Fettes produced a further forensic accounting report in respect of the partnership adjustments (July 2021 Fettes report). The report stated that the potential amount owed by Frank would be reduced to $420,574 upon the updated calculations.[214] This was distributed to the beneficiaries via letter of Aitken Partners dated 2 August 2021.

181 Contemporaneous and subsequent communications between the protagonists concerned matters such as:

(a) HQ Law's concerns regarding obtaining updated valuations based on recent sales in the area, and the accounting of livestock, hay and grain;[215]

(b) whether, under the second Elders recommendation to sell Weston Vale as three separate blocks on the market, Frank could make a bid for one block using a notional allowance from the estates;[216]

(c) the settlement of Frank's partnership debt and the accuracy of the July 2021 Fettes report, with Frank protesting some of the adjustments but later offering to withdraw his protests if he could purchase Weston Vale (seemingly reverting to seeking the property in its entirety and upon a notional allowance);[217]

(d) the delays in listing Weston Vale subsequent to the deadline in the consent minutes and following the second Elders recommendation (with the plaintiff and Andrew in particular opposing affording Frank further opportunity to purchase Weston Vale at or below market price).[218] In particular, by letter dated 30 August 2021, Prior Law attempted to follow up with Aitken Partners as to why Weston Vale had not been listed anywhere on Elders' listings nor other common online property sales websites;[219]

(e) whether the July 2021 Fettes report accounted for adjustments beyond December 2020 and whether further accounting was required to detect other alleged deficiencies in the estates caused by Frank;[220] and

(f) whether to seek Court orders requiring the sale of remaining sheep. The plaintiff proposed minutes of consent which were not consented to, with the defendant proposing a deadline of 16 September 2021.[221] The deadline was not adhered to or further discussed, but on 13, 15 and 22 October 2021, further sheep sales occurred via Nutrien.[222]

182 On 4 August 2021, Keith JR adjourned the proceeding noting in 'Other Matters' that the parties 'seek an adjournment of the directions hearing following agreement as to the sale of the estate properties and sale of the sheep'.[223]

183 On 23 August 2021, Frank emailed Mr Lamb and Mr Tunks (without copying the other beneficiaries) referring to a phone call between them the preceding week. I refer to Mr Tunks' evidence about the phone call with Frank at paragraph 187 below. The email expressed Frank's desire to keep the land in the family and to keep farming it. Frank argued that the delay was not his fault and he was given insufficient time to obtain finance.[224] His email addressed various other matters including the Solar Block and the accounting of sheep numbers.

184 On 27 August 2021, OFRM on behalf of Frank objected to $15,000 of the adjustments recommended by the July 2021 Fettes report concerning Frank's debt to the partnership, in respect of the cost of a shearing shed erected on Muskerry.[225]

185 Mr Tunks gave evidence, and I accept, that the defendant accepted Frank's objection to the $15,000. Mr Tunks said in his evidence:[226]

(i) The Partnership adjustment was reduced to $405,547 in relation to certain works on a shearing shed on the property Muskerry which Mr Fettes considered had been performed after the issue of proceedings should be debited to Francis Burke's account.

(j) The valuation of Muskerry, upon which Rene Burke received her appropriation, included a valuation of the shearing shed with those further works having been done and it was considered, after further advice from Mr Fettes, dated 10 September 2021, that the adjustment against Francis Burke should be reduced accordingly...

186 One of the contentious matters relating to the dealings over Weston Vale concerned a connection between the partnership adjustment said to be owing by Frank (as calculated by Mr Fettes) and the defendant's decision to allow Frank to purchase Weston Vale. In his written evidence, Mr Tunks did not address this matter in detail. He merely referred to a letter from OFRM dated 9 September 2021, which noted the adjustment figure and stated that Frank 'had agreed that he would not oppose the Partnership Adjustment if he was provided with the opportunity to purchase Weston Vale'.[227] This passage had a footnote, as follows:

On 19 August 2021 Aaron and Jason had a one-hour conversation with Francis Burke. Relevantly, Francis Burke requested that Equity Trustees make a decision on what adjustments were to be made against him in respect of the partnership adjustments. On 3 September 2021, Aaron determined that discussions with Francis would be approximately $420,000. On 6 September 2021, Aaron again spoke with Francis Burke who relevantly said words the substance of which was that he wanted some "protection" if he accepted the partnership adjustment.

187 Mr Tunks gave oral evidence in chief of a follow-up telephone call he had with Frank, in early September,[228] which he testified included an exchange to the following effect:[229]

I confirmed with Frank that - that in order for him to have the opportunity to purchase Weston Vale, he would need to accept the partnership debt as listed in the Fettes report.

Yes, and what was his response to that?---Ah he ... begrudgingly accepted that that was the only path which he would be given an opportunity to purchase Weston Vale.

188 Mr Tunks gave evidence that he was seeking to achieve a holistic solution of benefit to the administration of the estates.[230]

189 Following extensive correspondence in August and September 2021, on 28 September 2021, the plaintiff sent proposed minutes of consent seeking (among other things) orders that Weston Vale be placed on the market for immediate sale by the defendant, and that Bennetts be held until the sale of all other properties with Frank being given an opportunity to purchase that property instead.[231] The defendant did not sign this.

190 The plaintiff consequently made an informal application (without summons) by way of affidavit (affirmed 13 September 2021 and re-affirmed 8 October 2021) seeking the winding up of the partnership and that Weston Vale be placed on the open market via Elders.

191 On 1 October 2021, the first directions hearing in the proceeding was heard and adjourned in an attempt to allow the parties to resolve various matters (previous directions hearings had been vacated and adjourned on the papers).[232] The orders of Keith JR made that day record, in 'Other Matters' (recital C), the following undertaking by the defendant:

Upon the defendant undertaking by its counsel that, commencing from the date of these orders and ending on the date of the determination by the Court of the unresolved matters, or the written agreement of the parties, the defendant, by its servants or agents, or otherwise howsoever, will not enter into any agreement or arrangement with the beneficiary Francis (Frank) Burke in relation to the off-market sale to him of the estate real property situated at 551 Toolleen-Axedale Road and known as "Weston Vale".

192 On 13 October 2021, Kealy Property Valuers (Kealy) conducted a valuation of Weston Vale, Jerry's and Tommy's. Kealy discovered that some land fenced in with the Tommy's and 'Top end of Tommys' land was not owned by the estates (raising the possibility of adverse possessory rights in favour of the estates), and this land was excluded from the valuation (Kealy valuation).[233] Weston Vale (excluding Jerry's and Tommy's) was valued at $3,985,000 and of all three areas were valued at $5,685,000.[234]

193 Mr Tunks gave evidence, and I accept, that Nutrien's last substantial sale of partnership sheep occured on 22 October 2021: a batch of 345. After that, a further 25 sheep were sold the following February, and the remaining 75 were unable to be sold.[235] For practical purposes, the estate lands were destocked of partnership sheep by the end of October 2021.

Decision of McMillan J - 22 October 2021 to 4 November 2021

194 The plaintiff's informal application for orders that Weston Vale be sold on the open market was determined by McMillan J following a hearing on 22 October 2021. McMillan J declined to determine the application to wind up the partnership.

195 On 28 October 2021, McMillan J delivered short reasons (by email) in respect of the application to sell Weston Vale as follows:

The Court will not make the order sought by the plaintiff for the following reasons. First, the order sought falls outside any relief sought in the originating motion. Secondly, as submitted by the defendant, the order sought is effectively mandatory injunctive relief which, if allowed, would provide permanent relief to the plaintiff. Thirdly, the executor must administer the estate in accordance with its obligations and duties, in particular, it must act in the best interests of all of the beneficiaries and sell the estate assets for the best price. It is in the best position to weigh what is in the interests of all of the beneficiaries. Only one other beneficiary, being Mr McDougall, the executor of the estate of Mary McDougall, supports the position of the plaintiff.

As no formal application was filed by the plaintiff, the Court will record that the plaintiff's informal application made by way of affidavit be dismissed and costs should follow the event, with the costs of the defendant assessed on the trustee basis.[236]

196 Just before this decision was sent to the parties, on 27 October 2021, the defendant stated by letter (Aitken Partners to OFRM) that Frank had until 10 November 2021 to make an offer to purchase Weston Vale at equivalent to or greater than the agreed value (per the Kealy valuation), or else Weston Vale would be placed on the market.[237] This letter stated that the defendant was subject to the 2021 undertaking and that the suggestions contained therein were subject to that qualification.[238]

197 It appears that, subsequent to McMillan J's dismissal on 28 October 2021 of the plaintiff's informal application to have the defendant sell Weston Vale immediately on the market, the parties treated the 2021 undertaking as no longer having any effect. There was no controversy about this.

198 On 4 November 2021, McMillan J made orders dismissing the plaintiff's informal application, reserving costs and recording the reasons previously conveyed by email in the 'Other Matters' section of the orders.[239]

199 The fact that McMillan J dealt with and dismissed the plaintiff's informal application is significant to my analysis of key issue (2) defendant's dealings with Weston Vale, although I do not treat her Honour's decision as determinative of all the issues raised in the current removal application.

Weston Vale and related matters - November 2021 to March 2022

200 In November 2021, having only just been alerted to the adverse possessory rights in respect of Tommy's, the defendant engaged Petersen Westbrook Cameron for conveyancing advice in relation to this.[240]

201 With regard to my analysis of key issue (2) defendant's dealings with Weston Vale, as well as key issue (7) delay, the questions raised about adverse possessory rights threatened to delay progress in the sale of Weston Vale for a time, through no fault of the defendant. In the event, the contribution of this issue to delay in progressing sale arrangements for Weston Vale was to be negligible.[241]

202 On 5 November 2021, the Kealy valuation was corrected to reflect a title plan error, however the valuation sums were not changed.[242]

203 Correspondence in November and December 2021 concerned matters such as:

(a) the sale of other estate properties, and how the method of sale and interest accrual compared to the proposals concerning Weston Vale;[243]

(b) whether the defendant was providing Frank with the necessary information to allow him to take steps towards the purchase, including relevant surveys and valuations;[244]

(c) continued concerns raised by the plaintiff regarding deficiencies in the finances of the partnership and estates attributed to Frank;[245] and

(d) the defendant's willingness to readdress its arrangements with Frank and to reconsult Mr Fettes as to the 'appropriate level of renumeration'.[246]

204 One of these items of correspondence, a letter from Prior Law on 24 November 2021, also raised the question of whether Weston Vale and Muskerry had truly been destocked of partnership sheep, relevant to key issue (4) partnership sheep:

Our client inspected some of the properties from the road on 13th November 2021. There were about 9 rams at Weston Vale they were all in excellent condition. There was also a flock of about 30 head consisting of ewes, weaners, wethers and lambs. 3 or 4 of the sheep were in poor condition but the rest were all plainly saleable.

There were about 100 head of weaners at the Muskerry property. Please advise if these are partnership stock and confirm that these will need to be sold.

Can you confirm that you will engage Nutrien to sell these and any other remaining livestock?[247]

205 At about the same time, Frank (via OFRM by email dated 16 December 2021) said some unsaleable sheep remained, but sought to have additional sheep allowed on two of the then remaining properties for the purposes of managing the long grass.[248] It was 'too late in the season' for slashing and Frank believed there was an opportunity for an agistment by a neighbouring farmer, and opportunity to earn income for the estate.

206 On 11 January 2022, the defendant (through its employee Mr Lamb) emailed Frank a copy of the Kealy valuation, advised Frank of his estimated entitlement from the estates, and indicated that they would soon be ready to receive a formal offer in respect of Weston Vale.[249]

207 By February 2022, the defendant had signed contracts for the sale of nine parcels of estate land, settled on four of them, and obtained a valuation (of $15,000) in relation to the adverse possessory rights in respect of part of Tommy's.[250] The defendant decided that the adverse possession issue was not significant enough to pursue and that the transaction regarding Weston Vale could proceed.[251] However, issues concerning adjustments to Frank's debt to partnership, the terms of sale of Weston Vale to Frank, Frank's renumeration from the estates for managing estate land, personal benefits Frank was allegedly obtaining from his role as manager of the land, and alleged lack of supervision of Frank by the defendant remained significant issues in dispute.[252] Andrew's lawyers, HQ Law, challenged whether the defendant had the expertise to comment on the reasonableness of Frank's remuneration, and also complained that the delay was benefitting Frank at the expense of the other beneficiaries, stating:[253]

It is extremely frustrating that Equity Trustees continue to allow one person to benefit to the detriment of the other beneficiaries, with no accountability whatsoever.

208 In his evidence in chief, Mr Tunks referred to various tasks (listed in a letter of Aitken Partners on 3 February 2022)[254] that Frank was expected to perform as justifying the level of remuneration it was continuing to pay to Frank, but noted that the defendant was 'required to get some external validation of that'.[255] The Aitken Partners letter noted that the defendant would require fortnightly timesheets from Frank.

209 In its letter at this time, on 14 February 2022, the plaintiff's lawyers Prior Law complained that McMillan J (at the hearing of the informal application in October 2021) was assured, by way of evidence and submissions, that the sale of Weston Vale was 'imminent', yet nearly four months later it had not been attended to.[256] The same letter also rehearsed the issues and plaintiff's arguments on a range of other matters, including sheep, the decision of the defendant to reduce Frank's partnership adjustment by $15,000 on account of the shearing shed on Muskerry, and Frank's remuneration.

210 On 21 February 2022, Nutrien effected the final sale of sheep from the estates.[257] After this, only 75 sheep remained.[258] Frank advised the defendant that the remaining sheep were not saleable.[259]

211 On 22 February 2022, Andrew took several videos showing numerous sheep on Weston Vale and Bennetts.[260] This is of relevance to key issue (6) agistment and fencing, insofar as it suggests that Frank was running at least some of his own sheep on Weston Vale and Bennetts, particularly when viewed in light of Frank's instructions in late 2021 to OFRM that only some crippled (partnership) sheep remained. The sheep's presence suggests not only that Frank was deriving some additional benefit personally from the estate lands, but that any third party agistment was less likely as a result.

Correspondence between the defendant and Frank regarding the purchase of Weston Vale and Jerry's - February 2022 to March 2022

212 In about mid-February 2022, the defendant calculated that its most recently obtained valuations should be increased by 4.42% based on sales outcomes for other Burke family properties.[261]

213 On 17 February 2022, Jason Lamb of the defendant sent an email directly to Frank as follows:

As discussed, please find attached a letter advising that we will require your offer to purchase Weston Vale (or part thereof) by close of business 3 March 2022.

Separately I have attached an update of the estimated entitlements for each beneficiary including the valuation of Weston Vale.[262]

214 Attached to the email was a letter signed by Mr Tunks and Mr Lamb as follows:

We refer to Jason Lamb's email to you of 11 January 2022 in relation to your potential purchase of "Weston Vale". As outlined in that correspondence, we would accept an Offer to purchase "Weston Vale" at the valuation price ($5,685,000) plus 4.42%.

Alternatively, you may wish to make offers on individual parcels, "Geary's", "Weston Vale" or "Tommys and Top End of Tommys"", as described in the valuation dated 13 October 2021. Again, any offer is to be the valuation price of the parcel plus 4.42%.

We invite you to put an unconditional Offer to purchase the whole or part of "Weston Vale" to us within the next 14 days.

If we do not receive an Offer from you by 5.00pm on 3 March 2022, we put you on notice that we will immediately be placing "Weston Vale" for sale on the open market.[263]

215 The email also attached an updated entitlement estimate of each beneficiary, including a valuation of Weston Vale.[264] That document included a negative adjustment of $405,574 for Frank relating to the 'Partnership',[265] and a further negative adjustment relating to 'Solar Paddock' (presumably the Solar Block) of $104,000, bringing his negative adjustments to $509,574. Frank's gross entitlements were estimated to be $2,915,664.06. After reduction of the negative adjustment of $509,574 and the addition of $120,000 held in trust, Frank's 'estimated final entitlement' was $2,526,090.06.[266] The document also included an estimated final entitlement of $1,846,664.06 for Rene. At the end of the document, there was a note regarding a potential estimated partnership distribution of $62,322.46 representing the 1/15th individual share in the partnership of each of Frank, Rene, Patricia, Lousie and the estate of Mary.

216 On 22 February 2022, Andrew took videos and photos of the Weston Vale properties including a photo showing a collapsed section of fencing.[267] This is relevant to key issue (6) agistment and fencing, as poorly maintained fencing made opportunities for the estates earning income from third party agistments less likely.

217 What then occurred was an exchange of correspondence that is highly significant to key issue (2) defendant's dealings with Weston Vale. On 1 March 2022, OFRM wrote directly[268] to the defendant (Aaron Tunks and Jason Lamb) with the following offer on behalf of Frank:

Offer

Frank wishes to take "Weston Vale" and "Geary's" as part of his entitlement and also with the express consent of his sister Rene through the use of the balance of her entitlement to the Estates.

The value of these two properties appear to be (based upon your letter) as follows:

Weston Vale $ 3,985,000.00

Geary's $ 365,000.00

$ 4,350,000.00

Plus 4.42% $ 193,227.00

Total value $ 4,543,227.00

...

Frank is still aggrieved at some of the adjustments which have been allocated against him and it is my understanding that he will communicate directly with you on those issues very shortly, if he has not already done so. In any event, for the purposes of the calculations in this letter the full partnership adjustments of $405,574 have been accepted. The share of Frank and Rene in the partnership assets could also be allocated...

Do you agree that Frank and Rene can allocate their share of the partnership assets towards the acquisition of Weston Vale and Geary's?

...

Consequently, if we have interpreted your calculations correctly, then the funds available for Frank and Rene to use for these transactions are:

Frank and Rene's balance of entitlement to the Estates $ 4,372,754.00

Plus, Frank and Rene's share of the partnership assets

(excluding the plant and equipment) $ 253,115.06

Sub-total $ 4,625,869.06

Less adjusted value of Weston Vale and Geary's $ 4,543,227.00

Surplus available to Frank and Rene $ 82,642.00

The timing of the transfer of Weston Vale and Geary's is not clear. For stamp duty purposes... The amount of duty will be significant and will be possibly around $110,000.00.

If for some reason, you do not believe that Frank and Rene can apply the allocation of their share of the partnership assets of $253,115.06 towards this transaction, Frank is still in a position to pay the shortfall which would amount to $170,473. But of course, that amount is only an estimate.

The only certain amount is the agreed purchase price of $4,543,227. For the avoidance of any doubt, Frank is making an unconditional offer for Weston Vale and Geary's at that amount. It is the timing of the settlement and the adjustments in respect of the Estate entitlements that can't be precisely quantified at this time.[269]

218 On 3 March 2022, the defendant replied to ORFM as follows:

Acceptance of offer

We acknowledge and accept Frank Burke's unconditional offer for Weston Vale and Geary's. We note your advice that Geary's is in fact known as Jerrys.

The value of these two properties is as follows:

Weston Vale $ 3,985,000.00

Geary's (Jerrys) $ 365,000.00

$ 4,350,000.00

Plus 4.42% $ 192,270.00*

Total $ 4,542,270.00

* We calculate 4.42% of $4,350,000.00 as $192,270.00, not $193,227.00 as calculated in your letter.

Partnership assets

We agree that Frank and Rene can allocate their personal share of the partnership assets towards the acquisition of Weston Vale and Geary's (Jerrys).

We note however an error in your calculation of Frank and Rene's personal share...

We therefore estimate the funds available for Frank and Rene to use for the acquisition of the properties as follows:

Frank and Rene's balance of entitlement to the Estates $ 4,372,754.00

Plus, Frank and Rene's share of the partnership assets

(excluding the plant and equipment) $ 89,338.93

Sub-total $ 4,462,092.93

Less adjusted value of Weston Vale and Geary's (Jerrys) $ 4,542,270.00

Deficit - $ 80,177.07

Although this results in a deficit, we note that you indicate Frank will be in a position to pay a shortfall of this magnitude.

Settlement

We agree with your assessment that the only certain figure at this time is the agreed purchase price, which we set at $4,542,270.00.

The actual final estate and partnership entitlements of Frank and Rene will not be known until we are close to being able to finalise the estates, and as such settlement will have to take place around this time.

Adverse possession land

A decision was made not to include the value of the adverse possession land, being $15,000, as the land does not belong to the estate, and the outcome of an adverse possession claim is not guaranteed to be successful. We do not intend to make an adverse possession claim on behalf of the estate.[270]

219 In his evidence, Mr Tunks identified Frank's acceptance of the 'partnership adjustment' (ultimately quantified by the defendant on Mr Fettes' advice at $405,574) as significant to the proposed sale to Frank, and summarised the effect of this correspondence as follows:

On about 1 March 2022 Francis Burke ultimately formally accepted the Partnership Adjustment on the basis that he be permitted to buy the property known as Weston Vale/Jerry's at the valuation of that property as at 13 October 2021 (as revised on 5 November 2021) ($4,350,000) together with an uplift of $192,270 being a further 4.2% of valuation based on the previous sales of 9 blocks on the Axedale--Kimbolton Road.

...

The correspondence evidences that Francis Burke offered to buy, and Equity Trustees agreed to sell Weston Vale/Jerry's for $4,452,270. It also evidences that Equity Trustees further agreed that:

(i) payment of the purchase price would be made at the conclusion of the administration of the Estates; and

(ii) settlement would be satisfied by the application of:

A. Francis Burke's share of the Burke estates; plus

B. with the consent of Rene Burke, the application of her surplus share of the Burke Estates after the distribution to her in specie of Muskerry; and

C. the application of the shares of Francis Burke and Renee Burke in the Partnership (excluding plant and equipment).[271]

Weston Vale was the largest and most valuable part of the remaining Estates land. It was sold at a price above valuation and without the need for any agent's expenses in respect of sale. The sale further avoided the need for Equity Trustees to engage in protracted and potentially expensive proceedings to otherwise determine the amount payable by Francis Burke to the Partnership.[272]

221 During the hearing, as already noted, Mr Tunks' evidence was that he was seeking a holistic solution. In other words, the defendant considered there was a benefit in obtaining acceptance from Frank that he owed the partnership the adjustment calculated by Mr Fettes, and this contributed to the defendant's decision to enter into an off-market agreement for him to purchase Weston Vale in March 2022.

222 During closing addresses, I sought an explanation, on affidavit to be filed after the hearing, as to how the defendant had accounted for the adjustment between Frank and the partnership in its calculation of entitlements owing to Frank and in connection with the sale of Weston Vale to Frank.

223 Following the hearing, Mr Tunks provided the requested affidavit.[273] In the affidavit, Mr Tunks reiterated his evidence that the defendant regarded the adjustment quantified by Mr Fettes in July 2021 as $420,574, but the defendant later revised this down to $405,574 in light of some improvements Frank had made to Muskerry, said to be worth $15,000.[274]

224 Mr Tunks said the defendant considered Frank to have agreed to paying the adjustment, citing OFRM's letter dated 1 March 2022, extracted above.[275]

225 Mr Tunks' affidavit explained that the figure of $405,574 was deducted against the calculation of Frank's 'estimated final entitlement' outlined at paragraph 215 above.[276] In this way, the defendant notionally took the adjustment out of Frank's entitlement to distributions from the estates, and it did so before calculating the value of Frank's entitlement available to be applied as consideration for Frank's purchase of Weston Vale.

226 Following the hearing, in its reply to Mr Tunks' affidavit, the plaintiff disputed the basis for the defendant's application of a $15,000 reduction of the amount owing by Frank to the partnership. The plaintiff contended that the reduction provided another reason why the defendant should be removed from its position as executor/administrator and trustee of the estates. I do not accept the plaintiff's late addition of this issue to the grounds for removal. The plaintiff was on notice of the $15,000 reduction before receiving Mr Tunks' post hearing affidavit. In any event, the reasoning for the reduction is logical and reasonable to me.

227 The role played by the partnership adjustment in the defendant's decision to accept Frank's offer to purchase Weston Vale was a controversial one. I do not understand why this should be so. In my view, it was logical and reasonable for Mr Tunks to have sought a solution for both the partnership adjustment and sale of Weston Vale. I return to this under key issue (2) defendant's dealings with Weston Vale, below.

228 On 16 March 2022, the defendant emailed Frank requesting him to:[277]

(a) provide evidence as to the ownership of nine rams and any 'weaners';

(b) identify any assets he may wish to purchase from the partnership; and

(c) confirm whether he was still interested in Bennetts or whether it could now go on the market.

Notification to beneficiaries of acceptance of Frank's offer - 18 March 2022

229 By letter dated 18 March 2022 to all the beneficiaries, Aitken Partners enclosed the 3 March 2022 'acceptance' letter, stating that an 'acceptable offer' had been received from Frank to buy Weston Vale and Jerry's for a total of $4,542,270, and that this was accepted by the defendant (18 March 2022 letter).[278] The 18 March 2022 letter also enclosed the document setting out current estimates of the entitlements of the beneficiaries (referred to at paragraph 215 above).[279] It also noted that Frank was now being asked whether or not he now wished to acquire Bennetts, and said that if not, then that property would be placed on the market. The 18 March 2022 letter also advised in relation to Frank's renumeration as follows:

Equity Trustees are in the process of sourcing an independent consultant to advise on the work required to be undertaken by Frank on the unsold properties and the appropriate remuneration. Approaches have been made to Elders and Nutrien Ag but neither offer that service. It is not proposed to go back to Mr Fettes on the subject.[280]

230 The 18 March 2022 letter further confirmed that there was no saleable hay, grain or wool left, and in regard to sheep, that the defendant was confirming the position of the rams and weaners held by Frank. It confirmed that, following other land sales, 'work is being done on a further interim distribution'.[281] Regarding the partnership plant and equipment, it stated as follows:

Frank is now being given 14 days to indicate whether he wishes to acquire all or any of the partnership plant and equipment that was previously valued by Kevin Hick. If he does not want to buy the plant and equipment, then it will be sold.[282]

231 There was no letter in evidence responding to these matters on behalf of the plaintiff. In particular, it does not appear that, having been told of the agreement struck with Frank for the purchase of Weston Vale, the plaintiff sought to make any further argument at that time disputing that outcome. That issue, in essence, went quiet for a time.

232 However, the plaintiff had not been informed by the defendant of the negotiations between the defendant and Frank in 2022 concerning the sale of Weston Vale.[283] Likewise, Andrew had not been kept informed. Nor were they kept informed of any further discussions between the defendant and Frank on that topic afterwards, and on into 2023.[284]

Dealings between the defendant and Frank concerning Bennetts

233 Mr Tunks gave evidence, and I accept, that in response to the defendant's email to Frank on 16 March 2002 about Bennetts, Frank 'spoke to Jason [Lamb] and said that he intended to purchase the property'. [285] Mr Lamb then obtained a revaluation of Bennetts on 13 April 2022, of $890,000. 'Jason on behalf of Equity Trustees subsequently told Francis Burke of the amount of the revaluation and Francis Burke accepted it'. After preparation by Petersen Westbrook Cameron, a draft contract was sent to Frank on 22 July 2022. He did not sign it. This was the state of affairs concerning Bennetts until the defendant gave its undertaking not to take any further steps to sell estate land in September 2023.[286]

Interim developments and distributions - March 2022 to May 2023

234 Compared with the correspondence in 2021, the frequency and length of correspondence in the matter decreased somewhat for approximately 18 months following Aitken Partners' 18 March 2022 letter. The impression I have formed is that there was at least tacit acceptance by the plaintiff and Andrew that the terms of the sale of Weston Vale were now settled, and the defendant could now progress the administration of the estates in other ways without constantly having to address that matter. This is relevant to key issue (2) defendant's dealings with Weston Vale.

235 There was noteworthy correspondence in April 2022 concerning an interim distribution from the estates, following sales of various other lots of the estates' land. The defendant informed the beneficiaries of an interim distribution of $4,120,000 value in land and cash, amounting to an estimated $779,222.22 for each of the siblings (and Mary's estate), with Frank and Rene's cash components ($674,222.22 each) to be held by the defendant.[287]

236 On behalf of the plaintiff, by an email on 11 April 2022, Prior Law queried how that 'fits into the wider administration of the Estate' of Richard Burke, and sought responses to earlier correspondence in the preceding two months (including the letter dated 14 February 2022, which I have already mentioned).[288] Prior Law's letter on 11 April 2022 stated:

We ask that your client not just distribute the funds into the previous account as occurred last time without failing to respond to our enquiries made by our client.

237 The defendant did not respond. In the following two months, Prior Law sent follow‑up emails seeking a response, to no avail.[289] This is relevant to key issue (1) defendant's responsiveness. My view is that, by now, it should have been obvious to the plaintiff how the distributions related to the administration of the estates. The plaintiff's letter of 11 April 2022 and the follow-up correspondence seems to have lacked any real utility. In my view, even taking into account the principle summarised in paragraph 30(e) above, the defendant was entitled to ignore it and not to hold up the making of the foreshadowed distributions.

238 On 24 May 2022, the defendant wrote to the law firm Petersen Westbrook Cameron to arrange preparation of contractual documentation for an off-market sale of Bennetts to Frank.[290]

239 On 22 June 2022, Aitken Partners sent a holding response, informing Prior Law that there had been some further sales of the estates' properties and Bennetts had been revalued, and also stating:

The plant and equipment has been inspected by the valuer and a revaluation will be coming through shortly with a view to having a clearing sale of the items that Frank does not want to acquire at valuation.[291]

240 Prior Law responded on 24 June 2022, seeking more information about Frank's selection of plant and equipment. It also noted the plaintiff's disappointment that Frank had been allowed to take the best items, jeopardising the prospects of a return on the other items in a clearing sale.[292] This relates to key issue (5) partnership plant and equipment.

241 On 4 July 2022, Aitken Partners wrote to the plaintiff and other beneficiaries providing updated information about the interim distribution made to them, referring to the value of partnership plant and machinery, and referring to issues concerning the work being performed by Frank in managing the farm land and relating to his remuneration.[293] The defendant had evidently sought information on that topic from someone called Tony Speer, whom the defendant considered to have experience and expertise. The defendant sought to rely on an opinion attributed to Mr Speer, said to have been given in a conversation with the defendant's Jason Lamb. However, the defendant did not call Mr Speer (or Mr Lamb) as a witness and I could not take the opinion attributed to Mr Speer into account.[294]

242 As already noted, on 22 July 2022, a draft contract for sale of Bennetts to Frank for $890,000 was sent by the defendant to Frank, which he never signed.

243 On 27 July 2022, the plaintiff's solicitors, Prior Law, wrote to the defendant outlining matters they contended had not been addressed in the administration of the estates, including (in particular) remaining stock, and providing a photo from November 2021 of valuable rams that appeared not to have been counted in recent work done by Nutrien. The letter complained of Frank continuing to receive remuneration at his current rate on the basis of submitting time sheets in circumstances where there were no estate livestock left on the properties and no crops under pasture, and took issue with the defendant's reliance on advice from Mr Speer, noting that the plaintiff would obtain independent advice on that issue. The letter also complained of delay in finalisation of the sale of Weston Vale to Frank.[295] The letter is relevant to key issues (3) Frank's remuneration and (4) partnership sheep. With regard to key issue (2) defendant's dealings with Weston Vale it is noteworthy that the plaintiff was not complaining that an agreement had now been made for Frank to purchase Weston Vale, but rather that it was taking too long to finalise the sale.

244 On 5 August and 9 November 2022, a judicial registrar made orders granting an adjournment of the proceeding so the parties could 'continue to negotiate the unresolved matters between them'.

245 In November 2022, Aitken Partners responded to questions that had been posed by Prior Law in September about sale of plant and equipment, stock sales and various financial matters.[296] There was also a further interim distribution of $222,666.67 in November 2022 for each of the siblings (and Mary's estate).[297]

246 On 2 December 2022, Prior Law forwarded to Aitken Partners a report of Donald Naunton as to the appropriate remuneration for a person performing Frank's duties for the estates' properties (2022 Naunton report).[298] Mr Naunton opined that the role in question was one of a 'maintenance overseer' or 'maintenance supervisor', the remuneration for which would be up to about $26,000 per annum (substantially below Frank's remuneration of about $90,000 per year). Prior Law prompted Aitken Partners for a response to this letter by email dated 9 February 2023.[299]

247 On 17 February 2023, Aitken Partners wrote to Prior Law confirming that there remained no partnership sheep on the properties and that Weston Vale was to be sold to Frank.[300] It also provided updated information on the proposal to sell certain partnership plant and equipment to Frank, a further interim distribution to beneficiaries, and difficulties experienced in selling a remaining block of land in the Axedale area.

248 On 23 February 2023, another judicial registrar adjourned the proceeding for the same reason as the previous adjournments, and also because of CGT issues relating to the final property sale.

249 On 22 March 2023, Prior Law responded to Aitken Partners' letter dated 17 February 2023 on the various issues of relevance, and noted that no response had been received to Mr Naunton's report, contending (again) that from the last sale of partnership sheep (23 October 2021) Frank's remuneration should be in line with the report. As to the sale of Weston Vale, the letter stated:

It is now two years since the mediation and the sale of these two properties has not been finalised! Our instructions are that a further 60 days is ample time for Frank to organize finance to complete his purchase of Weston Vale whether the last Axedale block is sold or not.[301]

250 The letter went on to propose in this regard that:

Equity give Frank Burke the opportunity to enter a binding unconditional contract to purchase the property Weston Vale at the price previously agreed with a settlement date 30 days from the date of the contract and a contractual term permitting Frank Burke to apply distributions accrued but not yet drawn by him against the price.

If Frank Burke has not entered such a contract by 16 May 2023 Weston Vale be sold on the open market in a manner determined by Elders Real Estate.[302]

251 As to the sheep remaining on Weston Vale, the letter stated:

The sheep remaining on the property are either:

Property of the estate which should be sold by Equity,

Sheep on agistment in which case we seek details of such including numbers, ownership and what moneys Equity has received for the agistment or

Property of Frank.

If the sheep are Frank's property we have a completely unacceptable situation where Equity is paying Frank an excessive wage to look after his own sheep

252 Finally, the letter complained of a 'litigation fee' element in the commission the defendant proposed to charge, arguing that the claim for this element arose from the defendant's own conduct.[304] This relates to key issue (8) fees and commission.

253 In short, for the purposes of my analysis of key issue (2) defendant's dealings with Weston Vale, the plaintiff was, by March 2023, no longer content to wait for Frank to perform the terms of the purchase proposed in the correspondence the year before, and was suggesting a firm deadline of 16 May 2023 for entry into a formal contract of sale. In my view, this was a reasonable position for the plaintiff to take.

254 Aitken Partners responded by letter on 13 April 2023. One of the points on which the defendant responded was the delay in selling Weston Vale. The defendant wrote in this regard:

It is intended to tender a contract to Frank Burke shortly for him to sign. Equity Trustees' view is that with moneys set aside in his sub-account and with the support that Rene is prepared to provide to him, Frank Burke will have been able to ascertain with his bank whether he will be able to get funding sufficient to enable him to purchase this property.

The plan is that the contract will be unconditional as to finance and if Frank Burke is not in a position to sign then the property can be put on the market and sold.

Should Frank sign an unconditional contract, consideration will be given to allow him to move into occupation under licence pending settlement.[305]

The letter also informed the plaintiff of the defendant's position on Bennetts, the sale of plant and equipment formerly belonging to the partnership, sheep numbers, and Frank's remuneration.

255 In effect, Aitkens Partners' letter was consistent with the plaintiff's proposal, absent however the fixing of a firm deadline for Frank to sign an unconditional contract to purchase Weston Vale.

256 There followed an exchange of correspondence in April and May 2023 about orders proposed by the plaintiff, and the adjournment of listed hearing dates.[306] This included, in a letter dated 19 May 2023 from Aitken Partners to Prior Law, a statement that:

With regard to the sale of the property of Weston Vale and Jerry's, the price was fixed at $4,542,270 in March of 2022 as part of the settlement of the overpayment claim relating to the partnership matters as a result of which an adjustment figure of over $400,000 was fixed as against Frank Burke. There have been discussions between Frank and Rene Burke about the use of their respective account balances for the purposes of this purchase. Distributions to Rene and Frank have been placed in a subaccount and not distributed as has been the case with the other beneficiaries so their position is significantly less advantaged and it is reasonable for the contract to be completed when the administration of the estate has progressed to the point where they have a sufficiently clear assessment of their ultimate entitlements.

Our client is of the view that it is inappropriate, in all the circumstances, for this property and for the Bennetts property to be sold on the open market as you have proposed.[307]

257 On 22 May 2023, Prior Law sent a letter to Aitken Partners making (and in some cases reiterating, or seeking updates on) eleven requests for information. The letter concluded:

We note that the Estate only really commenced to be administered after our client bought the current proceeding.

On this basis our client is considering and reserves her rights for any application to appoint an independent administrator given that it is now two (2) years since the agreement for Frank to have the properties at Western Vale and Bennett's transferred to him.[308]

Events leading up to undertaking not to sell - June 2023 to October 2023

258 On 2 June 2023, Aitken Partners sent a letter to OFRM titled 'Weston Vale and Jerry's Contracts' and stating as follows:

I enclose contracts that have been prepared for these properties by Greg Westbrook. Can you advise me whether your client is now prepared to enter into the contracts.[309]

259 Mr Tunks' evidence was that the draft contracts were not signed. Frank gave evidence that he signed his copy but did not return it. The draft contracts themselves were not ultimately tendered into evidence. Mr Tunks gave evidence as follows, referring to an affidavit of Mercia Chapman that had been filed in the proceeding but was not tendered in the course of the trial,[310] and so was not in evidence before me:

On 31 March 2023 Jason instructed the Estates' conveyancing solicitors, Petersen Westbrook Cameron, to prepare sale documents for Weston Vale. They are exhibited at pages 58-116 of Mercia Chapman's sixth affidavit. They have never been signed.

260 As already noted, Mr Tunks likewise gave evidence about the earlier preparation and provision to Frank of a draft contract of sale for Bennetts, which was not signed either.[311]

261 On 5 June 2023, Prior Law wrote to Aitken Partners seeking a response to their letter of 22 May 2023 and expressing concern about the offer to sell Weston Vale to Frank as follows:

You have previously indicated that you accepted an offer in relation to the property as at the 15th March 2022 for the sum of $4,542,270 . Please advise by return if this in inclusive of the $400,000 for improper payments made by Frank.

We advise that our client has received a report from Australian Farmland Values which indicates that Central Victorian land rose by 52.3 % in 2022.

Please advise how the executor justifies the transfer to Frank , not yet completed on a now outdated value.[312]

262 On 21 June 2023, OFRM responded to the letter dated 2 June 2023 relevantly as follows:

Thank you for the Contract of Sale sent on 2 June 2023. The Contracts have already been provided to my clients and they have an appointment to see me tomorrow morning to review the documents, and hopefully have them signed.

The Contract appears to have been hastily prepared by Petersen Westbrook Cameron. I note that they did not attempt to include Frank Burke's correct full name, nor did they include a provision indicating that the purchase price would be met partly by an entitlement from Frank to proceeds from the Estates and partly from Rene's entitlements to the Estate and, if there was insufficient distributions available, then partly by cash. The Contract for the Solar Block did include Frank's full name and also an additional provision noting that the price was to be dealt with entirely by way of a distribution of entitlements to Frank, Rene and Louise from the various Estates. These are corrections that can be accommodated, but I was disappointed that Petersen Westbrook Cameron could not include those basic matters.

I am having difficulties in reconciling all of the information to determine the likely distributions for Frank and Rene... I would be grateful if you could ask Jason [Lamb] if he could provide the other documents which form the basis of these final calculations...

Based upon the information provided by Jason Lamb, it would appear that Rene has $1,760,632.21 that she can allocate from her entitlements towards Frank to assist with the completion of Weston Vale and Jerrys. The figures indicate that Frank has a negative entitlement of $2,285,254.82, and after using Rene's entitlement this would leave a shortfall of $524,622.61.

This is a significant sum and I just need to be confident that the calculations are correct.[313]

263 On 22 June 2023, Aitken Partners sent a letter to OFRM which was not responsive to any of the concerns raised in the letter of the previous day. It read as follows:

I refer to my letter of 2nd June in relation to this matter and my enquiry as to whether Frank Burke was prepared to enter into a contract that sent to you.

At this stage, what I need to know is whether Frank is prepared to enter into such a contract so that I can deal with matters that Rosemary Prior is canvassing and which I expect will need to be dealt with at the next return date on 21st July.[314]

264 On 23 June 2023, OFRM sent a further letter to Aitken Partners. It relevantly stated:

I have had the opportunity of a meeting with Frank and Rene. There are five matters for discussion.

1. Contract for sale of Weston Vale and Jerrys

• The Purchasers full name is Francis Michael Burke of 26 Harpin Street, Bendigo.

• A Special Condition needs to be included in the Contract that the purchase price shall be satisfied by a distribution of the purchaser's remaining entitlement under the Estates of John Michael Burke, Dorothy Margaret Burke and Richard Thomas Burke, partly from the remaining entitlements of Rene Elizabeth Burke from her entitlements to the Estates of John Michael Burke, Dorothy Margaret Burke and Richard Thomas Burke, and (to the extent that those entitlements are inadequate) the remaining portion payable to the vendor.

2. Loan Agreement between Rene and Frank

Rene has agreed to loan to Frank her remaining entitlement due to her from the Burke Estates, to the extent that it is agreed as at the date of settlement. I note that pursuant to the Burke Estates Distribution Estate Summary dated 15 May 2023 prepared by Jason Lamb that there is an estimated final entitlement of $1,760,632.21 payable to Rene. An Agreement is currently being finalised and should be provided shortly.

3. Calculation of present entitlements due to Frank and Rene

This is a very critical issue...[315]

265 Section '3' of the letter raised concerns about the correct calculation of entitlements and liabilities due to the impacts upon stamp duty and CGT payable on the sale of Weston Vale to Frank. The final two matters raised in the letter concerned the transfer of the Muskerry property to Rene and any other potential liabilities sought to be attributed to Frank and Rene.

266 On 4 July 2023, Aitken Partners responded as follows:

Contract

Apart from the correction of Frank Burke's full name, Equity Trustees did not intend that there be any reference to the use of Rene's entitlements towards the purchase price. As far as Equity Trustees are concerned, this is a private arrangement between Frank and Rene. The contract can be updated to reflect that Frank's purchase price will be dealt with in part by way of a distribution of his entitlement under the estates and partly by cash. As Rene is not a party to the purchase, her funds will represent part of the cash payment.

Statements

Equity Trustees is not particularly clear as to what you want. We agree that the matters are indeed complex and the details provided were intented [sic] as a reflecftion [sic] of an estimate of future entitlements, not an historic record of what has been paid from the estate. That said, the previous distributions to Frank and Rene are recorded in their respective sub-accounts and those funds are available to be used for this transaction. These figures are captured in the summary document "beneficiary distribution estimate 15 May 2023 - Burke estates". I am instructed that you have interpreted correctly that the shortfall based on the estimated calculations is $524,622.61. This is an estimate only even though it is expressed as an exact figure and therefore may change.

In light of these comments, could you perhaps let me know what you need to be able to move forward so that Equity might be able to assist with the additional documentation or further statements.[316]

267 On 21 July 2023, Aitken Partners provided Prior Law with an update, relevantly as follows:

Real Estate

Weston Vale/Jerry's

A contract is being finalised for the sale of this property to Frank Burke for the price that was agreed at the time of the settlement of negotiations over the amount of partnership overpayments which should be debited to his account. The amount of that adjustment is taken into account against Frank Burke in the calculation of entitlements that he can apply to the purchase price.

The position of this property was dealt with in the affidavit of Mercia Diane Chapman sworn 25 July 2022 (paragraphs 7(b) and 19), both as to price and the timing of completion which was to be at the end of the sale process at which stage an accurate figure would be known for the appropriations to Rene Burke and Frank Burke and the extent of any cash balance then to be paid by each of them. In respect of Weston Vale and Gerry's (Jerry's) the price struck included an uplift on valuation of $192,270, equivalent to 4.2%. This figure was struck in the course of a negotiated settlement under which Frank Burke agreed to an adjustment being made against him in respect of his liability to the partnership thereby sparing the partnership and the partners the cost and expense of further agitating that issue. Paragraph 17 of Mercia Chapman's affidavit sets out the amount of this adjustment against Frank Burke which is $405,574.

Your client in her affidavit 2 August 2022 takes no issue with these matters.

Muskerry

...

Bennetts

Frank Burke has indicated that he wishes to purchase this property as well. An up-to-date valuation is being obtained to determine the consideration consistently with the arrangements that have previously been agreed now that the sale process is completed.

Parcel E Axedale-Kimbolton Road

...

Capital Gains Tax

For the purpose of the calculation of indicative future entitlements that have been circulated to beneficiaries generally, Equity Trustees estimated the potential liability which will arise from 7 estate properties not covered by the private ruling from the ATO in 2020. BNR Partners have now been requested to prioritise the calculation of capital gains tax given that the sales have been virtually completed. Equity Trustees expects to have these calculations completed shortly.

Plant and Equipment

Frank and Rene Burke have indicated that they wish to take the following items at valuation from the plant and equipment available for sale.

... [List of various vehicles and equipment items, with values] ...

The selling agent has indicated that with the selection of these items the sale of the balance of the stock and equipment might best be made in conjunction with other sales so as to achieve the best results. Their proposed course of action is being awaited.

This deals with the sale of all of the remaining assets held by the estate. We note that it has been agreed that the further hearing of the proceeding be adjourned to 15 September. We propose that that hearing date be further adjourned in due course to a date sufficient for the completion of the sales with sufficient time allowed thereafter for discussion with all of the beneficiaries about the remaining issues, essentially limited to the question of costs and commissions.[317]

268 On 6 September 2023, Aitken Partners provided Prior Law with a further update, relevantly as follows:

The sale of Parcel E has settled. Frank Burke has indicated that he will buy Bennetts as soon as possible. That is being funded by an external borrowing on his part. That leaves only the Weston Vale and Jerry's properties. Some final amendments are being made to the contract for the sale of those properties to Frank Burke.

BNR Partners has advised that there might be a potential to claim a small business capital gains tax concession in respect of the land and subject to their confirmation of that advice a ruling will be needed. They are also finalising calculations of what the capital gains tax would be if this concession were not available.

The two issues that have not been resolved and now need to be resolved so that all beneficiaries will have a more accurate view of their ultimate entitlement are those of the costs of the proceeding and Equity's commission entitlements. To resolve those, we would propose that there be a further mediation conducted attended by all of the beneficiaries [in person]... We would propose that the hearing fixed for 15 September be adjourned to a date in December so as to allow time for such a mediation...[318]

269 On 13 September 2023, Prior Law on behalf of the plaintiff:

(a) filed a summons (returnable 13 October 2023) to amend her originating motion by seeking removal of the defendant as executor and trustee of the estates pursuant to s 34 of the Administration and Probate Act and s 48 of the Trustee Act; and

(b) wrote to Aitken Partners:[319]

(i) serving the summons;

(ii) advising that 'our client has obtained a kerbside valuation of the property at Weston Vale for $5,500,000.00';

(iii) seeking a written undertaking that the defendant not take any further steps to sell Weston Vale and Bennetts to Frank or Rene;

(iv) expressing the view that the properties 'should be sold on the open market in a manner determined by Elders Real Estate in order to realise the best price in the interests of all beneficiaries';

(v) repeating concerns about the reconciliation of sheep, claiming this is something that the defendant has 'also ignored'; and

(vi) enclosing proposed consent orders seeking adjournment of the directions hearing on 15 September to 13 October 2023 (to align with the summons).

270 On 14 September 2023, by letter from Aitken Partners, the defendant gave an undertaking in the following terms:

... Equity Trustees ... will not take any further step in relation to the sale of the properties at Weston Vale, Jerrys and Bennetts prior to the return of your client's application on 13th October.[320]

271 The 2023 undertaking remains in effect.[321]

272 On the same date, a judicial registrar made orders by consent adjourning the proceeding to 13 October 2023 (effectively in the form proposed).

273 On 27 September 2023, LAWD produced a valuation report at the request of the plaintiff in respect of the Weston Vale properties (first LAWD report).[322] Mr McNamara of LAWD was the principal valuer and signatory. LAWD valued the total Weston Vale land (inclusive of Jerry's and Tommy's North) at $5,250,000[323] - being slightly lower than the figure stated in Prior Law's letter of 13 September 2023. Mr McNamara had taken photos during inspections of the land prior to producing the first LAWD report.[324]

274 The directions hearing on 13 October 2023 did not proceed, being adjourned by the judicial registrar by orders dated 20 October 2023. The plaintiff's summons was listed for hearing before an Associate Judge on 15 February 2024, and the proceeding was otherwise adjourned to 8 March 2024.

Plaintiff seeks accounting of commissions - November 2023 to February 2024

275 Minimal correspondence occurred during November 2023 to February 2024, with letters being sent by Prior Law in November and December raising concerns on behalf of the plaintiff regarding the defendant's and Sandhurst's commissions already taken from the estates, and income from ongoing agistment and cropping suspected of being conducted by Frank.[325]

276 On 13 February 2024, Aitken Partners appears to have replied to Prior Law in respect of the accounting of past commissions, stating something to the effect that they were unable to advise as to the commissions Sandhurst had received historically. This letter was not in evidence but is referred to in a subsequent letter from Prior Law on 29 February 2024.[326]

277 In that letter dated 29 February 2024, Prior Law wrote to Aitken Partners expressing dissatisfaction with defendant's inability to account for the commissions paid to Sandhurst, stating that this was unacceptable and that they should have access to the hard copy files, and requesting a full and comprehensive account.[327] This letter also advised that the plaintiff did not wish to attend a further mediation, and sought that the 2023 undertaking continue.

Amendment of originating motion - 15 February 2024 to 20 February 2024

278 Meanwhile, on 15 February 2024, Goulden AsJ heard the application on the plaintiff's summons. On 19 February 2024, her Honour gave an ex tempore ruling and made orders granting leave to the plaintiff to file and serve an amended originating motion by 21 February 2024. The amended originating motion was filed on 20 February 2024.

AET initial period and requests for production - March 2024 to June 2025

279 On 1 March 2024, AET became the successor at law of Equity Trustees as the defendant.[328] Aitken Partners continued to act for the defendant.

280 On 5 March 2024, HQ Law (still acting for Andrew as representative of Mary's estate) wrote to Aitken Partners indicating its client's support for the plaintiff's application to remove the defendant as executor and trustee of the estates, and expressing dissatisfaction at the lack of correspondence received by them since July 2022.[329]

281 On 9 May 2024, Prior Law wrote to Aitken Partners seeking:

(a) an accounting of Aitken Partners' legal costs to date in the proceeding;

(b) copies of all correspondence between the defendant (directly or through Aitken Partners) and Frank, Rene, and any other beneficiaries (or their solicitors); and

(c) file notes of conversations with beneficiaries;

and indicating that in default of production, Prior Law would file a notice to produce in respect of these documents.[330]

282 On 13 May 2024, Aitken Partners replied seeking clarification as to the precise documents sought.[331]

283 On 15 August 2024, Prior Law wrote to Aitken Partners following up on their request for documents.[332]

284 The plaintiff filed her statement of claim on 11 October 2024. The defendant filed its defence on or about 13 November 2024.

285 On 21 November 2024, Aitken Partners wrote to Prior Law enclosing 15 pages of documents, purportedly responsive to the request. It included correspondence noted earlier in these reasons, dating from 11 January to 3 March 2022 between the defendant and Frank, and relating to the sale of Western Vale.[333]

286 In January 2025, Jason Lamb of the defendant arranged for David Reeves, whom the defendant described as an experienced farm property manager, to visit Frank and inspect the properties, and advise on the extent of Frank's work. The defendant sought to rely on an account of Mr Reeves' opinion, but did not call Mr Reeves (or Mr Lamb). In this regard, the defendant sought to tender an email to its lawyers, Aitken Partners, dated 13 February 2025 setting out a purported report of a conversation between Mr Reeves and Mr Lamb about Frank's duties on behalf of the estates relating to the Weston Vale properties and Bennetts.[334] Much of that email was inadmissible and was not received into evidence. Likewise, the defendant sought to rely on a purported summary of the conversation given by Mr Tunks, which was inadmissible and not received either.[335]

287 On 3 March 2025, Prior Law wrote to Aitken Partners regarding the earlier request for copies of correspondence between the defendant and beneficiaries,[336] apparently not having been satisfied by the letter of 21 November 2024 and its enclosures. The letter requested further documentation regarding agistment by any beneficiaries or third parties, and put the defendant on notice that a notice to produce would be issued if the documents were not received by 4:00pm on 14 March 2025.[337] Prior Law apparently also sent a follow-up email on 7 March 2025,[338] but this was not in evidence.

288 Aitken Partners responded on 13 March 2025, stating that the request for production was misconceived due to being excessively broad and that, should a notice to produce be issued, Aitken Partners would apply to the Court to have it set aside as being vexatious and oppressive.[339]

289 On 8 May 2025, Prior Law wrote to Aitken Partners reframing the request for production (with a new deadline of 22 May 2025) as follows:

Please provide us, within 14 days, copies of all correspondence between 1 January 2020 and today's date between your client (whether directly or through their solicitors) and:

(i) Frank Burke (directly or through his solicitors); and

(ii) Renee Burke (directly or through her solicitors),

in relation to:

(a) the proposed sale of the properties known as Weston Vale, Jerry's and Bennetts (including on the open market and the purported 'Weston Vale/Jerrys Sale Agreement' as defined in your client's defence);

(b) the partnership debt owed by Frank Burke;

(c) the remuneration paid or to be paid to Frank Burke;

(d) any sheep on the estate land;

(e) agistment of sheep;

(f) sale of any plant and equipment on estate land; and

(g) sale of hay, wool and grain from estate land.

We further request copies of all correspondence since 1 January 2020 between your client (directly or through their solicitors) and Elders Real Estate in relation to Weston Vale, Jerry's and Bennetts.[340]

290 On 20 May 2025, Aitken Partners responded, again stating that the request for production was too broad, 'vexatious and fishing'.[341]

291 On 21 May 2025, Prior Law by reply pointedly expressed frustration at various matters of delay, including:[342]

(a) Aitken Partners failing to respond for 12 days and then refusing to undertake the search for documents, particularly when (at that point) the defendant had a copy of the statement of claim for six months;

(b) the defendant 'purporting to administer the deceased estates in question for decades';

(c) the litigation now spanning almost six years; and

(d) the defendant being 19 days late with its outlines of evidence, 'holding up the rest of the interlocutory timetable'.

292 The letter ultimately gave the defendant a further seven days to produce the documents.[343] This did not occur.

Discovery pursuant to orders of Ierodiaconou AsJ - June 2025 to August 2025

293 The disagreement regarding the production of documents culminated in an application for discovery being filed by the plaintiff by summons on 3 June 2025. The application sought documents as outlined in the letter of 8 May 2025, albeit the requests for categories relating to sheep were combined into one request relating to 'agistment of sheep on estate land'. Alternatively to the requests for particular categories of documents, the plaintiff made a general request for all correspondence between the defendant and Frank and Rene from 1 January 2020.

294 The application was heard by Ierodiaconou AsJ on 26 June 2025, who gave an ex tempore ruling and made orders the same day. Her Honour found as follows in relation to the particular categories of correspondence between the defendant and Frank and Rene (or their solicitors):

(a) correspondence relating to the proposed sale of Weston Vale, Jerry's and Bennetts was discoverable, but confined to the period 1 January 2020 to 2 March 2022;

(b) correspondence relating to the partnership debt owed by Frank was discoverable, but confined to the period 1 January 2020 to 14 September 2023;

(c) correspondence relating to the remuneration paid or to be paid to Frank was not discoverable, but the defendant was directed to discover timesheets regarding the work of Frank after destocking of relevant properties, being the period 1 October 2021 to the date of the order;

(d) all correspondence relating to agistment of sheep on estate land from 1 January 2020 onwards was discoverable;

(e) correspondence relating to sale of any plant and equipment on estate land was not discoverable; and

(f) discovery in relation to the sale of hay, wool and grain from estate land was no longer pressed.

295 Given these rulings, Ierodiaconou AsJ determined that she was not required to make a ruling on the alternative general request regarding correspondence with Frank and Rene. In respect of correspondence between the defendant (directly or through their solicitors) and Elders in relation to Weston Vale, Jerry's and Bennetts, this was determined to be discoverable but confined to the period 1 January 2020 to 2 March 2022.

296 The orders of Ierodiaconou AsJ required discovery, together with an affidavit of documents, by 4:00pm on 10 July 2025. The defendant complied with this requirement, stating in the affidavit of documents of Mercia Chapman (Senior Legal Counsel for AET) filed 10 July 2025 that there were no other documents to be discovered.

297 The plaintiff took issue with the photographic form of discovery of Frank's timesheets.[344] The plaintiff filed a notice to produce the original timesheets on 1 August 2025 and a subpoena to produce the same (directed at Frank) on 8 August 2025. The timesheets were ultimately tendered in a scanned format by consent at the trial on 12 August 2025.[345]

Further pre-trial reports and developments - July 2025

298 On 2 July 2025, Donald Naunton furnished a further report at the request of the plaintiff, having now been granted access to inspect Weston Vale, Jerry's, Tommy's, and Bennetts (2025 Naunton report).[346] The 2025 Naunton report covers the following matters, with a view of comparison with the 2022 Naunton report (which was on the basis of a roadside assessment):[347]

(a) the condition of the land;

(b) what activities were being conducted on the land;

(c) what work needed to be done to maintain the land and how many hours per week that would take;

(d) the appropriate renumeration for such maintenance work and whether a salary of $90,000 per annum such as received by Frank was excessive;

(e) changes in sheep numbers and locations; and

(f) whether the land could have been agisted in the interim and what a fair rate for such agistment would be.

299 Mr Naunton's primary conclusions in the 2025 Naunton report were not significantly different from his 2022 report. With the passage of time, he described the role as one of 'caretaker', and gave a reasonable salary range across the years 2022 to 2025 of $20,800 to $26,000 per annum (in June 2022) to $27,000 to $33,800 per annum (in June 2025).[348] He also concluded that a large portion of the fencing on the properties was in poor condition,[349] which would have impaired the ability to agist the land. He calculated a range of agistment income and set it out in his report, noting that income would be higher if all of the fencing was stock proof.[350] The 2025 Naunton report is significant to my consideration of key issues (3) Frank's remuneration and (6) agistment and fencing.

300 Mr Naunton was of the view that the agistment income in an average year would be 'in the range of $63,700 - $91,000'. Although this was ultimately admitted into evidence, I am not (at least in this stage of the proceeding) determining the amount of lost income due to any failure to make Weston Vale or Bennetts available for agistment.[351]

301 On 4 July 2025, LAWD completed a further valuation report in respect of the Weston Vale properties as at 3 June 2025, on the instructions of the plaintiff (second LAWD report).[352] Mr McNamara was again the principal valuer and signatory. The second LAWD report produced a valuation of $4,750,000,[353] being $500,000 less than the valuation in the first LAWD report (at 27 September 2023 for $5,250,000), and about $207,730 more than the purchase price in the 3 March 2022 'acceptance' letter (for $4,542,270) for 'Weston Vale and Jerrys'. Again, Mr McNamara had taken inspection photos.[354] All these values relate to the same 479.85 ha of land in the Axedale area.

302 In other words, the most recent valuation of the Weston Vale properties in evidence before me was quite close to the sale price allegedly agreed between the defendant and Frank. The second LAWD report is relevant to key issue (2) defendant's dealings with Weston Vale.

303 On 31 July 2025, no doubt informed by the recent discovery she had obtained, the plaintiff filed an application by summons to amend her statement of claim. On 6 August 2025 (the first day of the trial), I granted leave for the plaintiff to rely on an amended statement of claim substantially in the form served.[355] On 7 August 2025, pursuant to that grant of leave, the plaintiff filed an amended statement of claim. I dispensed with the requirement for a defence.

304 This key issue is whether the defendant unreasonably delayed, or failed to respond, to the beneficiaries' requests for information, or failed to account to them or keep them reasonably informed.

305 It is convenient to consider this issue in four stages: first, events before the commencement of this proceeding in July 2019; secondly, July 2019 to October 2021 (when McMillan J refused the plaintiff's informal application for an order for the immediate on-market sale of Weston Vale); thirdly, October 2021 to September 2023 (when the plaintiff sought and obtained an undertaking from the defendant not to proceed further with sale of the estate properties); and fourthly, September 2023 to the trial in August and September 2025.

First stage - defendant's responsiveness before July 2019

306 At the first stage, as already noted in the preceding section of these reasons, I am satisfied that in the long period before commencement of the hearing, Sandhurst and the defendant were insufficiently responsive to reasonable requests for information from the beneficiaries, were insufficiently proactive, and were dilatory in their administration of the estates. Mr Tunks, the only officer or employee of the defendant called to give evidence on its behalf, had no real knowledge or recollection of this period and during cross-examination could not meaningfully answer any questions about the period. He did not dispute numerous suggestions of failures by the defendant to respond to queries from the beneficiaries,[356] and could not explain why the defendant had not taken steps to ascertain property holdings and CGT exposure of the estates in the period 2016 to 2018, which were necessary preliminaries to finalising the administrations.[357]

307 In short, as I have already said, the plaintiff acted reasonably in commencing this proceeding and was left with no other apparent choice in order to spur the defendant into appropriate action.

Second stage - defendant's responsiveness July 2019 to October 2021

308 The second stage was different and far more complicated. As should be clear from the preceding section of these reasons, a plethora of issues emerged in the administration of the estates in this period. A very substantial body of queries was directed from the plaintiff to the defendant in the course of very frequent correspondence. The plaintiff's correspondence was in some instances repetitive and prolix. At times during this period, the defendant showed admirable patience and restraint in dealing such correspondence.

309 However, as already noted, I do not regard the defendant's responding correspondence as beyond criticism, either. I have already made findings that the defendant's letter (through its solicitors) on 9 April 2021 was incorrect and unduly antagonistic.

310 Viewing the defendant's conduct of the administration and responsiveness to queries in this period as a whole, on balance my overall impression and finding is that the defendant generally adhered to a reasonable standard of responsiveness in the period July 2019 to October 2021, but its letter of 9 April 2021 was well below the required standard.

Third stage - defendant's responsiveness November 2021 to September 2023

311 The third stage began with a period of somewhat less frequent correspondence, following the decision of the Court rejecting the plaintiff's application for judicial advice and direction in late October 2021.

312 As already noted, I do not regard the plaintiff's correspondence in February, April and May 2022 as having necessitated any further response from the defendant. Nor do I consider the defendant's responsiveness to have been lacking in the latter part of the period.

313 The defendant carried on correspondence with OFRM relating to Frank's proposed purchase of Weston Vale in January to March 2022, apparently without copying that correspondence to the plaintiff at the time. In my view, the Court's decision in late October 2021 gave the defendant licence to deal with Frank in this manner, and there was no need to copy the plaintiff into every item of correspondence.

314 With one important exception, the defendant's responsiveness to the plaintiff's correspondence remained reasonable from March 2022 to about March 2023, when the plaintiff clearly and reasonably formed the view that sufficient time had passed to enable Frank to obtain finance for the purchase of Weston Vale, and insisted on a firm deadline (16 May 2023). The defendant did not agree, but did at least engage and respond on this issue.

315 The exception was the defendant's lack of engagement with the issue of Frank continuing to receive about $90,000 per annum in salary for his management of the estate properties. The defendant's level of engagement on that issue was unsatisfactory. It fell below the standard the Court expects of a professional executor.

316 From 22 March 2023, the plaintiff reagitated the issue of delay in finalisation and settlement of the sale of Weston Vale to Frank. It was only after she did so that a draft contract of sale was eventually provided to Frank, in June 2023. I infer that this was a reaction to the plaintiff's complaints about the lack of progress.

317 At the same time, the plaintiff raised the question of whether Frank was running his own sheep on the estates' properties. The defendant's engagement with that issue was not satisfactory.

318 Again, delay on the part of the defendant in progressing the administrations left the plaintiff with little choice other than to approach the Court. I am satisfied that she acted reasonably in foreshadowing, in September 2023, that she would amend her claim to have the defendant removed as executor/administrator and trustee.

319 The defendant, through its submissions in this proceeding, complained that this application came very late in the proceeding.[358] This was an illogical criticism for the defendant to make in the circumstances. It was only because of the further delay in progressing the matter that the plaintiff was driven, eventually, to seeking this relief. It was reasonable not to have sought this at the outset. The plaintiff was only driven to this as a last resort.

Fourth stage - defendant's responsiveness September 2023 to September 2025

320 The fourth and final stage, from September 2023 to the trial in August and September 2025, commenced with the plaintiff seeking and obtaining an undertaking from the defendant not take any further steps to transfer the remaining estate properties, Weston Vale and Bennetts.

321 Further, in 2025, the plaintiff sought production of documents relating to issues for trial, such as correspondence with Frank concerning the sale of Weston Vale and his timesheets. In my view, the defendant should have provided such documents (as shown by the fact that the defendant was ultimately compelled to give discovery by order of Ierodiaconou AsJ).

322 Under cross-examination, Mr Tunks was unclear about the scope of the undertaking. At one point, Mr Tunks suggested that it might have been an agreement to 'cease progressing the estate administration'.[359] He raised this in response to a question about whether Frank should have been charged agistment fees for running his own sheep on estate land. As noted earlier in these reasons, the defendant's undertaking was that it would 'not take any further step in relation to the sale' of the relevant properties, and had nothing to do with other aspects of estate administration.

323 The defendant's failure in this respect was a failure to respond adequately to (largely) reasonable requests for relevant information.

324 The defendant was also asked repeatedly to quantify the commission that it and its predecessors had deducted from the estates, and to state how much would be deducted in the future. The defendant did the best it could to report what commission had been deducted in the past, a task made difficult by Sandhurst's record-keeping before 1970. As to the future, the defendant essentially relied on its published schedule stating what amounts it regarded itself as entitled to deduct. In the circumstances of this case, I do not think this was sufficient. The defendant should have committed to a particular proposal.

325 As to the general administration of the estates, there was no evidence about its progress in this period. It appears that the business of finalising the estates came to a halt. The defendant's failure to engage with the plaintiff's complaints about Frank being remunerated excessively and being permitted to run his own sheep without paying agistment, was a continuing failure that extended throughout the fourth stage also.

326 Overall, I characterise the defendant's conduct in the fourth period as insufficiently responsive to the plaintiff's reasonable requests, and overly adversarial.

327 My conclusions on the defendant's inadequate responsiveness would not on their own lead me to remove the defendant from its role. However, I give those conclusions some weight in my overall approach to that question (addressed as key issue (13) removal below), in combination with my conclusions on other issues.

Key issue (2) defendant's dealings with Weston Vale

328 The principal controversy in this proceeding concerns the defendant's stated intentions, proposals, and transactions in regard to disposal of the Weston Vale properties.

329 The plaintiff claims that the defendant has led itself into a position of irreconcilable conflict of interest and duty arising from the way it has handled the sale of Weston Vale on behalf of the estates, and in connection with the management of activities on the Weston Vale properties, and (to a lesser degree) also on Bennetts.

330 As to the defendant's purported sale of Weston Vale to Frank, my relevant conclusions of fact are as follows:

(a) The defendant represented that it would only sell Weston Vale to Frank if Frank made a proposal by 21 March 2021 to which all beneficiaries agreed, and that Weston Vale would otherwise be put on the market forthwith.

(b) The defendant resiled from this agreed proposal and deadline, and continued to treat with Frank well after the deadline and without the agreement of Particia and Andrew. I address this topic in detail as sub‑issue 2(a), below.

(c) In August and September 2021, the defendant (through Mr Tunks) decided that it was in the interests of the estates to allow Frank to purchase Weston Vale, provided he agreed not to contest the adjustment (debt) he owed to the partnership, as calculated by Mr Fettes.

(d) In September and October 2021, the plaintiff applied to the Court (McMillan J) for judicial advice and direction that the defendant should immediately place Weston Vale on the open market for sale. The plaintiff complains that the defendant should have been the party applying for judicial advice. I address this as sub-issue 2(b) below.

(e) The outcome of the application for judicial advice about the sale of Weston Vale was that in effect that the defendant was authorised to continue to deal with Frank over the sale of Weston Vale and Bennetts.

(f) By reason of the 1 and 3 March 2022 'offer' and 'acceptance' letters, the defendant claims it entered into an enforceable agreement with Frank (premised also on a contribution from Rene) to sell Weston Vale to Frank at a specified price. The consideration comprises Frank and Rene's (yet unquantified) rights to distributions from the sale of other assets of the estates and the remainder in cash, likely to be obtained by Frank from third party finance. The timing of settlement would be dependent on finalisation of other aspects of the administration and no fixed date was agreed. The enforceability of the alleged agreement is disputed by the plaintiff. I address this issue in detail as sub-issue 2(c) below.

(g) For the next 18 months, very little of relevance happened. Drafts of formal contracts of sale were sent to Frank in June 2023, but not signed.

(h) In September 2023, the defendant gave its requested undertaking not to progress any further with the sale and nothing further has occurred since then.

331 The plaintiff does not accept that the alleged agreement with Frank made in March 2022 is enforceable, and contends that the defendant dealt with Frank in this respect inconsistently with previous promises to the beneficiaries, preferentially to Frank's interests, and at the expense of the interests of the other beneficiaries (or, at least, not in all their best interests).

332 The plaintiff says that the defendant cannot properly review its own conduct in these respects and decide what should now be done objectively in the best interests of all the beneficiaries. In this way, the plaintiff submits the defendant is in a position of unmanageable or 'irreconcilable' conflict. The plaintiff contends that the defendant must therefore be replaced by an administrator who can conduct a proper investigation and decide what to do, including by pursuing any proper claims against the defendant. I address this contention in detail under sub-issue 2(d) below.

Sub-issue 2(a) - did the defendant resile from representations about mode of sale of Weston Vale?

333 The plaintiff contended that at all material times, the stated and accepted legal position of the defendant was that before the defendant could dispose of an estate property to a beneficiary, all beneficiaries must agree to the terms. The plaintiff placed heavy reliance on the Hunt & Hunt letter of 31 July 2018,[360] containing a clear and direct representation to the relevant effect.

334 The plaintiff also relied on the Heads of Agreement dated 12 December 2000,[361] and the correspondence and minutes of proposed consent orders in February 2021[362] as containing such a representation. The plaintiff further relied on 14 other items of correspondence which she said (perhaps implicitly) amounted to such a representation by either the defendant or by OFRM on behalf of Frank and Rene. The plaintiff pointed out that, with respect to the Solar Block, even though one of the beneficiaries (Louise) had sought a transfer in specie, in 2021 the defendant had decided to sell it on the open market because not all the other beneficiaries agreed.

335 I accept that Hunt & Hunt's letter of 31 July 2018 clearly stated that the law required the unanimous consent of all beneficiaries for any sale of an estate property to any one of them (including as to price). I regard this as a statement made on behalf of the defendant.

336 Neither the Heads of Agreement in December 2020 nor the correspondence and minutes of proposed content orders in February 2021 directly state what the law is supposed to be on this topic. However, I am satisfied that, as the plaintiff contended, the Heads of Agreement and minutes of proposed consent orders evince a common approach by the defendant and beneficiaries that agreement of all beneficiaries would be required.

337 Mr Tunks was asked in cross examination why the defendant took an approach to Weston Vale (allowing a sale to Frank even though not all beneficiaries agreed) that was inconsistent with the approach it took to the Solar Block (selling it on the open market, because not all beneficiaries agreed with it being transferred in specie to Louise). His responses were unconvincing.[363]

338 I am not satisfied that the additional items of correspondence relied upon by the plaintiff add materially to her argument. They do not contain clear representations to the effect alleged. Some of them do, however, provide a basis for inferring that there was a common understanding that all beneficiaries would have to consent to any disposition to one of their number. This is particularly clear in a series of letters from Aitken Partners shortly after the February 2021 consent minutes were exchanged. That is not surprising, given that the minutes clearly stated that if a proposal for sale of Weston Vale and Bennetts to Frank and Rene was not acceptable to the defendant and all of the beneficiaries, the relevant property would forthwith be placed on the market. The correspondence contained nothing to the contrary until April 2021.

339 I am satisfied that representations were made by and on behalf of the defendant to the effect that the consent of all the beneficiaries was required before the defendant could dispose of an estate property to a beneficiary. Such representations continued to be made by and on behalf of the defendant until about February 2021.

340 I am also satisfied that, on and from Aitken Partners' letter of 9 April 2021, the defendant resiled from those representations. From that time onward, by its words and conduct, the defendant acted on the basis that it was free to sell Weston Vale to Frank: (a) after the deadline of 21 March 2021 agreed in the consent minutes, and (b) irrespective of the evident absence of unanimous approval by the beneficiaries.

341 Again, I was not taken to any decided authority that the representations correctly stated the law. Mr Tunks was asked for his understanding, and he said he did not necessarily consider it to be a binding rule.[364]

342 I will not assume that there is a binding rule or principle of law preventing an executor from selling an estate property to a beneficiary in the absence of the unanimous consent of all other beneficiaries.

343 During the hearing, the plaintiff complained of the defendant's reprobation of its previous representations on this issue. However, it was not clear to me precisely how the plaintiff contended the plaintiff's reprobation (or 'retracting') affected the true issues in the proceeding. One of the contentions made in the opening submissions on behalf of the plaintiff (see paragraph 362 below) was to the effect that any agreement the defendant reached with Frank about Weston Vale could not be binding because it was reached without the unanimous consent of the other beneficiaries.

344 Closing submissions for the plaintiff took issue with the fact that the defendant had adopted a position 'at the 11th hour at trial' that was inconsistent with the principle that the consent of all beneficiaries would be required.[365]

345 However, the plaintiff did not claim any form of estoppel against the defendant in this regard. In essence, the plaintiff contended that the representations bound the defendant only as a matter of proper administration of the estates. In other words, resiling from the representation was a failure by the defendant to properly administer the estates, capable of demonstrating the defendant's unfitness to remain as administrator.

346 I accept this submission. I consider that the defendant's conduct resiling from its representation was inconsistent with the high standards of conduct the Court expects on the part of a licensed trustee company. Unless openly explained and well justified, it is the sort of conduct that is likely to lead beneficiaries to lose confidence in the trustee company's continuing performance of its role.

347 I place some weight on this in my overall consideration of the matter. However, it is only relevant in this somewhat indirect manner. In and of itself, I am not satisfied that the defendant's reprobation of its previous representations placed it in a position of irreconcilable conflict, or prevented it from contracting with Frank to sell Weston Vale to him, or otherwise prevented it from continuing with the administration.

348 This is explained in more detail by reference to sub-issues 2(c) and 2(d) below. Thus, the agreement the defendant ultimately struck with Frank ultimately does not directly influence my assessment of key issue (13) removal.

Sub-issue 2(b) - should the defendant have sought judicial advice?

349 In forming my overall impressions of the way the defendant has conducted the administrations of the estates, I give some weight to the fact that the defendant has never sought judicial advice relating to any aspects of its administration contested by Patricia and Andrew (including, in particular, the sale of Weston Vale).

350 It would have been prudent for the defendant to have sought judicial advice and/or direction about the sale of Weston Vale as early as about 21 March or 9 April 2021, rather than ignoring the deadline of 21 March 2021 set in the consent minutes, ignoring the agreed proposal to consult with other beneficiaries, and continuing to negotiate with Frank over the objections of Patricia in the period after that date. It is surprising that the defendant did not seek judicial advice at this time. This left Patricia with little real option other than to do so herself.

351 However, I do not conclude that the omission to seek advice was in and of itself a breach of duty or in some other way substandard conduct by the defendant. What matters is the underlying conduct which might have been the subject of advice, not the failure to seek advice per se. The defendant's omission to seek judicial advice does not in itself demonstrate that its conduct gave rise to irreconcilable conflict, and is not a ground for removal.

352 As to the defendant's underlying conduct in the period of March 2021 to the Court's decision on 28 October 2021, as already noted under sub-issue 2(a) above, I am satisfied that the defendant acted inconsistently with the 21 March 2021 deadline it had agreed in the consent minutes, and inconsistently with its previous representations that it would consult with the other beneficiaries and the unanimous consent of all beneficiaries would be required to effect a sale of Weston Vale to Frank. However, what matters more is that in the end, in September 2021, Patricia herself made an application for judicial advice, and on 28 October 2021 that application was unsuccessful.

353 The failure of the plaintiff's application was a significant milestone and a relevant matter to which I must give due weight. It was at least implicit in the Court's decision in October 2021 (rejecting the plaintiff's application for an order for immediate sale of Weston Vale) that the defendant was not bound to adhere to its previous representation that the property would be put on the open market if the terms of sale to Frank had not been approved by the beneficiaries by late March 2021.

354 The Court's decision at the time was that, even though many months had passed since March 2021, the defendant should be left to determine the best mode of sale.

355 Accordingly, the fact that the defendant then may have (as it claims) entered into a binding agreement with Frank in March 2022 did not, and does not, raise an irreconcilable conflict that would prevent it from completing the administrations. Its entry into that agreement was consistent with the Court's judicial advice granted in October 2021. It is for this reason that I do not consider my conclusion on sub-issue (2)(a) to be directly relevant in addressing key issue (13) removal.

356 In approaching these matters, I have noted the plaintiff's contention that the Court, in providing judicial advice in October 2021, may have been influenced by evidence or submissions of the defendant to the effect that sale of Weston Vale would be imminent, and that the Court's decision might have been different in the absence of this evidence. I am not satisfied that anything untrue was said to the Court. Even if a prediction was made which turned out to be inaccurate, I do not consider the Court's decision to be undermined in any way or to lack binding authority.

357 Following the Court's decision on 28 October 2021 (and orders in early November 2021), dismissing the plaintiff's application, the defendant dealt with Frank and sought to obtain an offer from him to purchase Weston Vale.

Sub-issue 2(c) - is there a binding agreement in force for the sale of Weston Vale?****[366]

358 The plaintiff and defendant have diametrically opposed positions on the question of whether there is a binding agreement on foot for the sale of Weston Vale to Frank pursuant to the March 2022 correspondence. However, neither party explained their position in great detail. Neither party, for example, addressed me on the possible application of Masters v Cameron[367] or other important caselaw or principles of contract law.

359 At an earlier point in the administration, as I have already summarised at paragraph 301 above, this issue appeared to assume significant monetary consequences for the estates. It no longer does now. On 27 September 2023, the first LAWD report obtained by the plaintiff showed a much higher market value of the Weston Vale properties than the purchase price accepted in the 3 March 2022 'acceptance' letter. The plaintiff then amended her claim in the proceeding to seek removal of the defendant, and sought and obtained an undertaking from the defendant not to take further steps to sell the properties. The administration has been in that state since then. On 4 July 2025, upon almost two years passing, the second LAWD report obtained by the plaintiff showed the market value of the Weston Vale properties decreased, and is now a little over the price struck between the defendant and Frank back in March 2022 (being $207,730 more than the purchase price in the 3 March 2022 'acceptance' letter).

360 I have endeavoured to form a provisional view about this contest - on the question of whether there is a binding agreement on foot for the sale of Weston Vale to Frank. The view is necessarily only provisional because I am not in possession of all the relevant evidence and Frank would be a necessary party to any final declaration on that issue. Frank's participation in this proceeding has not been as a party, but as a witness in the trial and a participant (as an affected beneficiary) in correspondence and mediations.

361 The defendant says it entered into a binding contract with Frank for the sale of Weston Vale in about March 2022. Senior Counsel for the defendant submitted that this was the product of consideration by the defendant as to what was in the best interests of all the beneficiaries, and that it was appropriately within the defendant's lawful discretion to make this decision. Mr Tunks said he reached this decision in part because it was a way in which he could ensure that Frank would accept his liability to the partnership, as assessed by Mr Fettes. In this way, the approach involved removing another difficulty facing the defendant in finalising the administration of the estates. As already noted, I see nothing wrong with this.

362 Senior Counsel for the plaintiff submitted that there was no binding contract, saying:

... the so-called agreement reached with Frank is no agreement at all. There couldn't have been an agreement. It didn't have the approval of all beneficiaries.

The court's imprimatur had not been sought in respect of it, and as the defendant had acknowledged on so many occasions before... unanimous agreement of beneficiaries was required in respect of sale of estate property.[368]

363 I reject the submission on behalf of the plaintiff that any such agreement cannot be binding on the ground that it was made without the unanimous approval of all beneficiaries. As I already said, no such principle of law was identified.

364 The plaintiff further contended that this issue gave rise to an irreconcilable conflict and the need for an independent administrator:

...Western Vale is a very good example of, essentially, what this case is about. It's [Equity Trustees] said to all beneficiaries it agreed at mediation that it was going to do something, it started to do it, but then got bullied into a different position by a beneficiary, and it found itself, in a sense, torn, and it ended up preferring the interest of Frank by proceeding with this sale which was, in fact, really an appropriation. So Frank was treated preferentially and beneficially through that process.

And now, Your Honour, we find ourselves in a position where the defendant is still refusing to acknowledge this. They find themselves in a position of deep conflict, because they've purported to make an agreement without authority of the beneficiaries, they've failed to go to court and seek advice, and get the court's imprimatur for what it wants to do, which would be the end of it, as far as my client's concerned, and that is one of the main reasons why they can't continue to act.

It's all fine for the defendant to come along and say, 'There's not much left to do in the administration, so we should remain in'. That's beside the point, Your Honour. Western Vale is one specific example of a few where the defendant finds itself in an irreconcilable position of conflict. And the delays that have occurred as a result of this conflict, trying to please Frank whilst at the same time, being constantly peppered and barraged by correspondence from Patricia and Andrew, and whilst also, at the same time, being subjected to and involved in a piece of significant litigation; all of that has caused wasted time and, not to mention, waste to the estate, we say.

And those matters need to be investigated by an independent person. Because the defendant certainly isn't going to investigate themselves on those things. And in the meantime, Western Vale needs to be put on the market for sale.[369]

365 The key evidence for this sub-issue is the chain of correspondence in late 2021 and early 2022 between OFRM (on behalf of Frank and Rene) and the defendant. This correspondence culminated in an exchange of letters purportedly setting out an offer and acceptance on 1 and 3 March 2022.[370]

366 Aside from the letters of 1 and 3 March 2022, no other agreement in writing is adduced in evidence before me. It is reasonably arguable, and perhaps strongly arguable, that the letters meet the requirements of s 126 of the Instruments Act 1958 (Vic) and that they adequately identify the essential terms required for the sale of land, including parties, consideration and subject matter.[371]

367 As to the requirement for an agreed time for performance, this is less clear. It might be argued that the time of performance is capable of being ascertained, or it might be argued that a term can be implied that the sale be settled within a reasonable time. If a term of that kind is implied, it might be arguable that a reasonable time elapsed by September 2023 in any event, leaving the contract spent and unperformed.

368 In short, my provisional view is that there is a reasonable argument that there was a binding agreement made in March 2022, but it is not clear if it remains in force. It is not essential (or appropriate, given that Frank is not a party) that I reach a final view on those issues.

369 In any event, the true focus of the plaintiff's claim was different: it was that the defendant's dealings with Frank placed it in a position of irreconcilable conflict. I now turn to that issue.

Sub-issue 2(d) - is the defendant in a position of irreconcilable conflict?****[372]

370 The plaintiff contended that the estates may have a claim against the defendant if the contract with Frank was made in breach of trust or negligently, and this should be investigated. The plaintiff contended that this raises an irreconcilable conflict, and justifies removal of the defendant so an independent new administrator can investigate the issue.

371 Senior Counsel for plaintiff neatly encapsulated these aspects of Patricia's case in his opening address:

Patricia was saying, in accordance with the agreement reached at mediation, 'You've got to put this property on the market and sell it'. Frank was saying, 'If you do that, I'll sue you, and I want you to abide by the heads of agreement from December 2019, because I want it'.

So instead of sticking to their agreement, as they foreshadowed they were going to do [at CB 1867], instead of convening a further meeting of beneficiaries and seeking a fresher approach or agreement, or even better, instead of seeking the court's imprimatur or judicial advice, the defendants ploughed on and this resulted in significant waste of time and it drove the beneficiaries deeper into conflict, and, Your Honour, over the next two, three years, as the weeks and months and years went by, Frank Burke was still being paid $90,000 to look after a dilapidating property whilst running his own stock on it.

The property market was going up and we say, Your Honour, that an opportunity to sell Western Vale for well in excess of $5,000,000 was lost in September 2023 or thereabouts. All the time, Frank Burke is using the estate land, running his own livestock on it, using partnership plant and equipment, thus further diminishing its value, and all the while my client is engaged in the stress and strain of litigation and having her solicitors send constant correspondence. So put simply, Your Honour, it's our case that this is a remarkable position for a professional executor and trustee to find itself in.[373]

372 These submissions have a good deal of force in them. I agree that the defendant had put itself in a 'remarkable position'. Its handling of the estates, dilatory and ineffective communications with the beneficiaries (particularly in the earlier stages of the matter), and, above all, its inconsistent promises and conduct and its prevarications over the sale of Weston Vale, all left much to be desired and were substandard. These aspects of its conduct of the administrations fell below the standard properly to be expected of a licensed trustee company.

373 But even so, I do not conclude that the defendant should now be removed because it entered into an agreement with Frank in March 2022 to sell Weston Vale to him. It did so with the imprimatur of the Court's advice, or implied advice. I therefore do not think there is a reasonable case to be made against the defendant that its entry into the contract was in breach of duty. To the extent that the defendant was influenced by Frank's acceptance of his debt owed to the partnership, I do not think this makes any difference. The defendant was acting under the protection of the Court's judicial advice given in late October 2021, and was free to form its own view on this issue. In any event, in my view, the defendant acted logically and reasonably in this respect: it was reasonable for Mr Tunks to see this as a holistic solution in the interests of the estates and beneficiaries as a whole at the time.

374 Further, there is a reasonable argument that any agreement made by exchange of correspondence with Frank in early March 2022 was, and remains, legally binding on the estate (subject to the uncertainty I have already noted concerning whether a reasonable time has passed for Frank to perform it, in addition to the unaddressed considerations of s 126 of the Instruments Act 1958 and essential terms).

375 If the agreement is binding, Frank will have a contractual entitlement to compel performance of that agreement by whomever is the administrator of the estate, whether or not the defendant is replaced. If it is not binding, Frank will have no such entitlement and whoever the administrator is they will have to revisit the entire issue.

376 For these reasons, strictly speaking, the interests of the beneficiaries in relation to the alleged agreement with Frank for the sale of Weston Vale are unaffected by the identity of the administrator.

377 Having concluded (in paragraph 373 above) that the defendant is protected from claims that it acted in breach of duty in agreeing to sell Weston Vale to Frank, I do not consider the defendant to be in a position of 'irreconcilable conflict' arising from its conduct leading to the alleged agreement in March 2022.

378 For these reasons, I give no direct weight to sub-issue (2)(d) in deciding key issue (13) removal.

379 Did the defendant pay excessive remuneration of Frank (using money from the estates) after the winding up of the partnership?

380 The admissible evidence on the appropriate level of remuneration for work of the kind required to oversee farming properties without conducting farming operations was as follows. The plaintiff relied on the expert opinion by Mr Naunton. In the 2022 Naunton report (22 November 2022) he described Frank's scope of work following the final sale of partnership sheep in October 2021 as a 'maintenance overseer' or 'maintenance supervisor' role, for which he reported a reasonable salary of up to about $26,000 per annum.[374] In his second report (2 July 2025), he described the role as one of 'caretaker', and gave a reasonable salary range across the years 2022 to 2025 of $20,800 to $26,000 per annum (in June 2022) to $27,000 to $33,800 per annum (in June 2025).[375]

381 As concluded at paragraphs 143 and 144 above, the defendant had been paying Frank $90,000 for his work managing the operations of the partnership, apparently drawing on partnership funds to do so, thereby reducing the amount of any surplus available to the estates and to that extent ultimately diminishing the value of future distributions to the beneficiaries. The defendant simply continued to pay Frank $90,000 per annum after October 2021, even though self-evidently his scope of work was diminished because the partnership was no longer operating. There is no evidence that the defendant acted in a timely way after October 2021 to obtain and act on appropriate advice as to what the level of remuneration should be for Frank's new scope of responsibilities. There is no evidence that the defendant prescribed the scope of work for Frank either.

382 I am satisfied that the defendant should not have simply continued to pay Frank the same level of renumeration after October 2021.

383 As already noted, in his evidence in chief, Mr Tunks accepted (correctly, in my view) that the defendant was required to obtain 'external validation' of the level of remuneration it was paying to Frank from the estates.[376] Belatedly, the defendant sought advice from third parties about an appropriate level of remuneration for Frank. It appears this happened twice, some time before about July 2022 in a conversation between Mr Lamb and Mr Speer, and then in about January 2025 in a conversation between Mr Lamb and Mr Reeves. The defendant did not lead evidence in an admissible form about the advice it received from either of these men, and I have not taken it into account. This leaves the issue of the proper level of remuneration for Frank after October 2021 to be determined solely by reference to the evidence of Mr Naunton.

384 For these reasons, and on the basis of Mr Naunton's evidence, I am satisfied that as a matter of objective fact, Frank has been overpaid by about $60,000 per year since October 2021. That is now four and a half years ago. This must ultimately have been paid from estate funds, or funds still held separately as partnership funds that would otherwise have become beneficiary or estate funds. In short, the defendant's failure to address the proper level of remuneration payable to Frank has resulted in losses to the beneficiaries or estates of about $270,000, not including interest potentially payable on that sum.

385 As already noted, from some time in about the middle of 2022, the defendant imposed on Frank the requirement to submit timesheets on a fortnightly basis. After resistance from the defendant, it was ultimately ordered (by Ierodiaconou AsJ) to produce the timesheets and these were tendered by the plaintiff.[377] The plaintiff submitted that they were extremely general and insufficient to prove that the remuneration Frank received was justified. The plaintiff also pointed to various attendances recorded in the timesheets that appeared unrelated to management of Weston Vale and Bennetts, such as days spent at Muskerry.

386 I do not think it is necessary to reach conclusions on these criticisms of the timesheets. That is because, even if Frank spent all the time he claims to have spent managing Weston Vale and Bennetts, that still does not provide an answer to the question of what might have been an appropriate level of remuneration for the task of looking after those properties, but without managing any farming operations. I have only Mr Naunton's evidence to guide me on that question. Whether or not Frank in fact spent more than the time Mr Naunton reported to be the appropriate amount of time is beside the point.

387 This leads me to conclude that the plaintiff has established the element of a foreshadowed potential claim against the defendant: the defendant has paid excessive remuneration to Frank since October 2021 that was not justified by the proper scope of work involved in looking after the land of Weston Vale and Bennetts, without conducting any farming operations on it. The defendant should only have been paying Frank about $30,000 per annum for that work, which should have been limited to work in the nature of caretaking.

388 Does it follow that the defendant is obliged to compensate the estates to this extent (or at all) in relation to the excessive renumeration that it paid to Frank? The plaintiff did not put its case this way. Rather, she contended that the issue gave rise to a potential claim of devastavit (actionable wastage of the assets of the estates) by the defendant that justified investigation and raised the possibility of pursuit of that claim against the defendant. In turn, the plaintiff contended, this meant the defendant is in position of irreconcilable conflict, and that investigation and any resulting claim should be pursued by an independent administrator.

389 I note that the prayer for relief in the amended statement of claim included an item seeking compensation from the defendant, however this item was not pressed at the hearing. I assume from the overall tenor of the plaintiff's case that compensation is not pressed at this stage of the proceeding, but neither has it been altogether abandoned.

390 On the face of it, there appears to be a strong claim of wastage against the defendant on this basis, and this in turn provides a reasonable basis to seek the removal of the defendant from its role as executor, administrator and trustee of the estates, in line with the principles discussed in the English cases noted earlier in these reasons.[378]

391 I will return to this issue under key issue (9) wastage and key issue (13) removal.

392 Did the defendant unreasonably delay in ensuring, or fail to ensure, that Frank properly counted and sold the sheep owned by the partnership upon its winding up?

393 My assessment of the evidence on this issue is that some aspects of the delay in sales of sheep previously owned by the partnership was not properly explained by Frank or the defendant. The partnership was dissolved on 31 December 2020 and the final substantial sale (of saleable sheep) did not occur until 22 October 2021. Apart from a small number sold in February 2022, the remaining partnership sheep after that date were probably unsaleable and are immaterial to the key issues.

394 Although it would have been better for the partnership sheep to have all been sold before, or soon after, the dissolution of the partnership, the delay of approximately 10 months was not inordinate. In my view, the issue assumed a significance in the correspondence between protagonists that outweighed its true importance.

395 I do not propose to give any weight to this issue in deciding the remaining issues before me.

396 I considered whether the delay in the sale of partnership sheep had an indirect significance on the plaintiff's potential wastage claims against the defendant. The 10 months or so of delay in removing sheep owned by the partnership from Weston Vale and Bennetts created uncertainty about the point in time at which Frank could be said to be no longer conducting the partnership's operations (for which he was earning $90,000 per annum in remuneration), and about the point at time at which the estate land should have been made available for third party agistment (see key issue (6) agistment and fencing below). In this indirect sense, the delay in sheep sales may have contributed to failures by the defendant to act in a timely way to reduce the remuneration for Frank and ensure that the estate land earned agistment income in the period December 2020 to October 2021. However, based on my overall impression of the evidence, I give the benefit of the doubt to the defendant in respect of this period.

397 I reiterate my finding, however, that by October 2021 there was no such uncertainty. From that time onward, the defendant is exposed to legitimately and reasonably arguable claims for wastage on these grounds. I address these points further in key issue (3) Frank's remuneration above, and key issue (6) agistment and fencing, key issue (9) wastage and key issue (13) removal, below.

398 Did the defendant fail to ensure that the partnership's plant and equipment be sold upon the winding up of the partnership (so their proceeds could be got in and distributed)?

399 My views in relation to this issue are similar to my views in the sale of partnership sheep. Ideally, the defendant would have managed to reach a solution involving prompt sale of partnership equipment to Frank or the public soon after the dissolution of the partnership. That solution was not found, largely because Frank appears to have been indecisive about which items he would purchase and about the way his purchase of equipment would be funded by offsetting entitlements to distributions from the estates. In the end, the delay in resolving this issue seems to have become virtually intractable. It appears that even now the plant or equipment remains unsold.

400 Nevertheless, I do not propose to place any weight on this issue in determining key issue (9) wastage or key issue (13) removal. The issue assumed a great deal more significance in the correspondence than it deserved. It is not clear to me that delay in sale of the various items resulted in material loss to the estates. To the extent that some of those items might have depreciated during the period of delay, the evidence did not establish that any such amount was material.

401 Did the defendant fail to ensure that the estate lands earned income from agistment pending finalisation of the administration of the estates, and/or fail to ensure that Frank kept the fencing in appropriate repair for commercial agistment, and/or allow Frank to run his own sheep on estate lands and use the lands without compensating the estates?

402 I resolve all these issues in favour of the plaintiff - there are strong grounds for these claims against the defendant that might well succeed.

403 My overall impression of the evidence on this issue is that Frank has run his own sheep on Weston Vale and Bennetts, at least since early 2022. To some extent, this reduced the opportunity for third party agistment.

404 Further, the state of the fencing on both properties appears to have been poor, leaving it undesirable and perhaps unavailable for third party agistment. The state of some of the outer boundary fences might have rendered the properties less desirable as a whole, although it is possible that there were also some paddocks unaffected by poor fencing on which sheep could be safely run.

405 I am satisfied that Frank paid no agistment fees to the estates for running his own sheep on the estate lands. There is no evidence that the defendant demanded or even asked that he do so. Frank's evidence was that he was never asked to remove the sheep he ran on Weston Vale from 2022.[379] Mr Tunks did not identify the contracting party in the only arrangement the defendant ever made for agistment (June to October 2021, for which it received $9,655.80).[380] I infer it was the farmer introduced by Nutrien. There was no suggestion that this was Frank. Mr Tunks referred to hearsay that Jason Lamb asked Frank not to run his own sheep, but I give this no weight.[381]

406 The defendant should have required Frank to pay a fair, arm's length, agistment fee to the estates for running his own sheep.

407 Further, the defendant should have ensured that Frank exerted himself more actively to arrange fencing contractors to keep the fences in proper repair so the estate lands were attractive and available for third party agistment, or the defendant should have made such arrangements. The estates should have properly borne those fencing costs. But it appears that no-one from the defendant was supervising Frank's work. The only attendance at Weston Vale Mr Tunks identified was Mr Reeves' attendance in January 2025.[382]

408 All of these matters are highly concerning to me, and give rise to a strong arguable case that the defendant has caused wastage of estate assets. It was, to say the least, suspicious that Frank did not ensure the fencing was kept in a state conducive to third party agistment while running his own sheep and not paying agistment fees. The plaintiff and Andrew raised all these issues, repeatedly. This should have caused the defendant to rectify the situation.

409 I return to these issues in the context of key issue (9) wastage, below. As explained below, there is a strongly arguable case that the defendant should compensate the estate, and that all necessary elements of a claim in devastavit can be made out. That process may be conducted by further summons in this proceeding or a further proceeding. The key question is whether the existence of the strong arguable case also justifies removal of the dependant from its role and the appointment of an independent administrator to prepare the devastavit claim. I address that issue under key question (13) removal.

410 Before leaving this key issue, I note a related matter pleaded by the defendant. The defendant alleged that sheep had been run on properties of the Burke family estates without paying agistment fees, and that in particular the BFF Partnership of which the plaintiff had been a partner paid no such fees. The defendant alleged that it relied on this to its detriment, and in the circumstances the plaintiff is estopped from contending that the defendant breached its duties in not charging agistment fees to Frank, or has acquiesced.[383] The defence is in tension with the correspondence from the plaintiff that frequently (in the period from early 2022 to September 2023) raised suspicions about sheep seen on the estate lands. The defence also overlooks the key distinction between the partnership (which consisted of all the beneficiaries) not having paid agistment for the benefit of use of the estate lands, and Frank not having done so for a benefit which he alone derived, essentially at the expense of the estate and other beneficiaries. It is unnecessary to reach a final conclusion on this defence. Suffice it to say that I am not satisfied that this defence is bound to succeed. It may be arguable, but it is certainly not so compelling as to doom the potential wastage claim against the defendant to failure.

411 Did the defendant excessively delay in finalising the administration of the estates?

412 As with key issue (1) defendant's responsiveness, it is difficult to give a single answer to this question, and it is appropriate to consider the issue by references to different stages in the matter. Further, although strictly speaking the defendant is the successor in law of its predecessor executors and administrators (Sandhurst and Equity Trustees), I consider it relevant to take into account recent changes in personnel in exercising my discretion on the weighty issue of key issue (13) removal by reference to any delays which have occurred in earlier times.

First stage - up to commencement of litigation in July 2019

413 I am satisfied that Patricia's commencement of the proceeding was amply justified in light of the dilatory administration of the relevant estates by Sandhurst (prior to April 2017) and the defendant (April 2017 to July 2019).

Second and third stages - July 2019 to September 2023

414 After the commencement of this proceeding in July 2019, the defendant was markedly more active in attending to its duties. I infer that the pendency of the proceeding contributed to this. Progress since July 2019 was not rapid, but much was achieved and there were intelligible reasons for much of the delay, at least until late 2022.

415 Not all of the delay in finalising the administration of the estates is fully explained. If the defendant had been appropriately firm in its approach to Frank's sale of sheep and attendance to fencing and agistment, the administration might well have progressed faster. Likewise, if the defendant had adhered to its representations to the effect that it would put Weston Vale on the open market if Frank had not made an acceptable proposal by March 2021, it can now be seen (in hindsight) that no doubt this would have brought about a far speedier finalisation of the administration. Further, even after the exchange of correspondence in March 2022, which the defendant claims to be an enforceable agreement to sell Weston Vale and Bennetts to Frank, it appears that the defendant was tardy in providing reliable information to Frank required for him to obtain third party financing commitments, and that the defendant also failed to set an appropriate deadline for Frank to confirm sufficient third party financing to achieve settlement. Frank also appears to have contributed to the delay in various ways, so not all of the blame can be laid at the defendant's door.

416 At times, the plaintiff's correspondence with the defendant was excessively frequent, and some aspects of it were overly demanding. Yet I am satisfied that, had the plaintiff not brought the proceeding and kept the defendant under scrutiny, the administration would have remained moribund. The plaintiff also accepted that her correspondence and the litigation itself has at times contributed to the delay, but she submitted that the underlying cause of the litigation was the defendant's conduct.[384] I accept this. Somewhat paradoxically, the proceeding and its related correspondence (in particular in its early stages) has been both beneficial in crystallising and ensuring the defendant's engagement with the true issues, and (in its more recent stages) a cause of delay in the finalisation of those issues.

417 In all, between December 2021 and late 2022, a total of 472.69 ha of the land of the estates was sold, including Tommy's South,[385] leaving the remaining Weston Vale properties and Bennetts (totalling 648.74 ha in undistributed land) still held by the defendant.[386]

418 My overall impression is as follows. In the period from March 2022 to September 2023, there should have been more than enough time for the defendant and Frank to finalise and settle the sale of Weston Vale and Bennetts, and (if Frank proved unable to purchase them) for them both to be sold on the open market. After the plaintiff's renewed demand for progress in March 2023, by September 2023, the administration was probably inching towards a conclusion, depending only on whether Frank could obtain the amount of required supplemental third party financing for those purchases and bring himself to sign and commit to the detailed sale contracts that the defendant had sent him in mid-2023. However, overall, the defendant (and Frank) should have acted with far more expedition during this stage of the matter. The defendant's contribution to the delay was material, and inadequately explained.

Fourth stage - September 2023 to September 2025

419 By September 2023, noting the substantial increase in land values since March 2022, the plaintiff clearly no longer considered it appropriate to continue to wait for Frank and the defendant to complete the sales. This was reasonable and understandable. She sought, again, to enable a sale of the estate properties on the open market, this time also seeking replacement of the defendant with another administrator.

420 Of course, none of the delay since September 2023 is attributable to the defendant. Since September 2023, the defendant's undertaking not to take steps to transfer the Weston Vale properties or Bennetts to Frank has been in effect.[387]

421 Some weight must be given to the defendant's contributions to delay in the finalisation of the administrations in deciding the removal application. Even though some aspects of the delay were out of its hands, and in particular Frank's likely contributions were significant, the defendant's contribution to the delay has been substantial. Insofar as Frank has contributed, it might fairly be said that the defendant has proved itself unable to deal effectively with this.

422 Were or are the fees and commission charged and proposed to be charged by the defendant excessive?

423 Section 601TBA of the Corporations Act 2001 (Cth) (Corporations Act) provides that subject to 'this Part' (pt 5D.3) a licensed trustee company may charge fees for the provision of 'traditional trustee company services', but not in excess of a limit imposed by a provision of pt 5D.3. Limits of that kind are imposed in respect of charitable trusts by subdivisions A and B of pt 5D.3, but they do not apply here. Otherwise, the only limit appears to an implied one: the licensed trustee company must not charge in excess of a schedule of fees that it must publish and make available under s 601TAA, save in the case of express authorisation by the relevant will, or by special agreement.

424 Although the provisions of subdivisions A and B of pt 5D.3 only apply to charitable trusts and do not apply here, I note that they include provisions concerning the charging of capital commission (which may only be imposed once) and income commission, and power is conferred on the court to vary excessive fees.[388]

425 For estates of the kind involved in this case, the Corporations Act confers no power on the Court to reduce excessive fees and commissions charged by licensed trustee companies. However, the Court has power to reduce the defendant's fees and commissions under s 65A of the Administration and Probate Act, as follows:

65A Reduction of excessive commission or fees

(1) If the Court is satisfied that the amount of either or both of the following is excessive, the Court may order that it be reduced or repaid to the estate -

(a) a commission or fee charged or retained by an executor or administrator or payable to an executor or administrator under the terms of a will;

(b) any fee, cost, expense or disbursement for which an executor or administrator has been reimbursed or claims to be reimbursed out of an estate.

(2) The Court may make an order under subsection (1) -

(a) on the application of -

(i) any person interested under the will or the estate, including any interested beneficiary; or

426 Section 601RAE of the Corporations Act is entitled 'Interaction between trustee company provisions and State and Territory laws'. It includes a provision that subject to sub-ss (3) and (4), the trustee company provisions (which include pt 5D.3) are intended to apply to the exclusion of laws of a State or Territory of certain kinds, including laws that regulate the fees that may be charged by companies for the provision of traditional trustee company services and laws that require the disclose of such fees.[389] There may be an argument that a law such as s 65A of the Administration and Probate Act does not fall within that description, but the contrary may also be arguable. Assuming it does, in any event, s 601RAE(4)(b) provides that the trustee company provisions are intended not to apply to the exclusion of prescribed State or Territory laws (or provisions of such laws). Under regulation 8D.1.04 of the Corporations Regulations 2001 (Cth), such laws and provisions are prescribed in schedules 8AC and 8AD to the regulations. Schedule 8AD, item 5 prescribes the Administration and Probate Act. My preliminary view is therefore that all the relevant provisions of the Corporations Act leave s 65A of the Administration and Probate Act free to operate on its terms. However, the parties have not yet addressed the Court on this issue, so I will reserve my final determination of any relevant issues until they have done so.

427 The written evidence of Mr Tunks[390] included a section on 'Commission and Costs'.[391] In summary, Mr Tunks gave evidence that:

(a) (unlike Sandhurst) the defendant only charged commission on an estate's capital once, at the conclusion of administration;

(b) statements of position setting out estimates of the defendant's fees (including capital commissions), estimated as a result of sale of real estate, were provided to the beneficiaries on four occasions from October 2021 to September 2023), exhibited to an affidavit of Ms Chapman (that was not tendered);

(c) small amounts of commission on income had been charged by the defendant in the period between 2017 and April 2025, in the total sum across the estates of $14,200.56;

(d) Sandhurst's commissions since 1970 'have been provided to the beneficiaries in accordance with the terms of the Heads of Agreement' (but not tendered as far as the Court can tell); and

(e) Sandhurst charged and received 'income commission' (but query whether this should have been a reference to 'capital commission') of $95,557.71 in respect of the estate of John Burke Snr, as well as capital commissions of $56,723.38 in respect of Richard's estate and $85,386.73 in respect of Dorothy's estate.

428 The plaintiff raised various issues about the commissions the defendant might charge. The plaintiff complained that she had not received clear information about what the defendant intended to charge. The plaintiff complained that it was not clear where there could be double counting in the calculation of commission, especially as regards lands that were partially held by different estates. The plaintiff argued that it would be unfair for the defendant to recover multiple commissions for what was essentially the same work, simply on the basis three estates were involved. The plaintiff complained that capital commission ought not be recovered by the defendant where Sandhurst had already recovered it from a particular estate. Also, the plaintiff objected to the defendant recovering any greater commission (litigation fee) for the estates due to the commencement of this litigation, on the basis that it came about through the defendant's own conduct or that of its predecessor at law, Sandhurst.

429 During the hearing, I asked the defendant to state what commissions and fees it intended to charge the estates.

430 In spite of this request, the defendant did not state the commission it proposed to charge. However, later in the hearing, the defendant provided the total commissions 'which can be charged in John Burke Snr, John Michael Burke, Richard Burke and Dorothy Burke estates' (emphasis added) in an exhibit bearing that title, which was marked 'D1'.[392]

431 Putting aside the estate of John Michael Burke as irrelevant to this proceeding, exhibit D1 identified total chargeable commission for the estate of John Burke Snr of $127,582.70, for the estate of Richard Burke of $107,198.55, and for the estate of Dorothy Burke of $108,962.85, and break downs of those totals (emphasis added to the totals, below) as follows:

John Burke Senior Estate Fee schedule 31.12.1926 Estate Value

2,5% on first $100;000 $2,500.00

1.5% on next $100,000 $1,500.00

1% over $200,000 $123,582.70 $127,582.70

Note: No regard of any previous commission charged by Sandhurst Trustees.

...

Richard Burke Estate Fee schedule 01.01.2012

Less commission charged and paid to Sandhurst Trustees

Less commissions charged and paid to Sandhurst Trustees

432 I note that in exhibit D1 the defendant has deducted the capital commission previously recovered by Sandhurst in reaching the totals for Richard's and Dorothy's estate, but no such deduction appears for the estate of John Burke Snr. Nor is the total of capital commission deducted by Sandhurst revealed in exhibit D1. As already mentioned, it might be that Mr Tunks' evidence contains an erroneous description of $95,557.71 recovered by Sandhurst from that estate in the period 1970 to April 2017 as 'income commission' and it really should be a reference to 'capital commission'. Alternatively, perhaps a different sum, undisclosed by the evidence tendered at trial, was recovered by Sandhurst by way of capital commission.

433 The defendant also tendered the published schedules of fees and commission by reference to which exhibit D1 was calculated.[393]

434 Taking each of the issues that arise in turn, I am satisfied that there is a reasonable basis for reducing the commissions that might otherwise be payable to the defendant by a substantial margin.

435 First, there is a strong case that the defendant should not be entitled to charge and recover any litigation fees, because (as I have found) the litigation came about principally as a result the delay of Sandhurst before its acquisition by Equity Trustees, and the delay of Equity Trustees following that acquisition.

436 Secondly, there is also a strong case that the defendant should not recover any commission on capital in its administration of the estate of John Burke Snr. That is because the available evidence suggested strongly that Sandhurst had already done so (without the total being identified clearly, or perhaps at all), and because it is the defendant's publicly stated approach only to charge capital commission once. According to this principle, any proposal by the defendant to recover capital commission on that estate would amount of double-recovery against the estate.

437 As to the plaintiff's contention that there may be double recovery by reason of interests in particular lands being held across different estates, the plaintiff did not perform a detailed critique of the calculations in exhibit D1 by reference to any valuations of the relevant lands, so I express no view on that issue. It must await further development by the parties.

438 But, on the basis of at least the first two points, I am satisfied that the plaintiff has established reasonably arguable claims for the reduction of fees and commission. Whether this means that the defendant should be removed, to enable a new administrator to pursue those claims, is another question.

439 I note that s 65A of the Administration and Probate Act confers standing on any beneficiary to seek a reduction in commission. It is therefore possible for the plaintiff to press a claim of this kind by summons in this proceeding against the defendant, whether or not the defendant is to be replaced with a new administrator. This suggests that the issue of excessive commission should not be given any significant weight in my deliberations under key issue (13) removal, below.

440 Based on key issues (2) to (8), has the defendant caused wastage of the estates?

441 The plaintiff alleged that the defendant had caused waste to the estates by reason of:[394]

(a) excessive payments made to Frank Burke;

(b) the defendant preferring the interests of Frank Burke over the benefit of all the beneficiaries;

(c) the failure to sell Weston Vale in a timely fashion and in accordance with the agreement reached;

(d) excessive litigation fees proposed to be paid out of the estates;

(e) the failure to agist estate land;

(f) the failure to sell plant and equipment;

(g) the failure to oversee the work done by Frank Burke to maintain the properties;

(h) commission charged and proposed to be charged out of the estates;

(i) legal fees proposed to be paid out of the estates; ...

442 For the reasons that follow, I am satisfied that the plaintiff has established a prima facie case that the defendant has caused waste of the kinds referred to in paragraphs (a) and (e) above, and that a failure to oversee the work by Frank (as alleged in paragraph (g) above) has occurred and has materially contributed to these two forms of waste.[395]

443 As the plaintiff submitted,[396] a legal personal representative who causes pecuniary loss to beneficiaries by a breach of duty is liable in damages for devastavit - being liable to pay damages to the estate for squandering or misapplying the assets in the estate. This rests on proof of loss or damage stemming from the commission of a legal wrong, including breach of executor's duty. There is some debate about the doctrinal origins and nature of such a claim: for example, is it a tort, or is it an administration remedy, or an equitable remedy? I do not need to form a view about these issues. Nor do I need to form a final view about whether the claim has been made out, or to quantify the damages. All that matters for present purposes is that:

(a) as a matter of law, a personal representative who has caused losses to the estate through failure to take reasonable care to preserve the assets of the estate may be liable to compensate the estate for those assets;

(b) there is a good argument that some act or omission of the defendant has caused losses to the estate; and

(c) there is a case for the defendant to answer that its relevant acts or omissions were through negligence (or failure to exercise reasonable care), such that it should compensate the estate for those losses.

444 I am satisfied that, whether the doctrine rests in tort or otherwise, a case meeting the legal test in subparagraph (a) is sufficient to establish a claim of devastavit.

(a) I have already set out (under key issue (3) Frank's remuneration) my conclusion on the evidence that the defendant has paid excessive remuneration to Frank, for the last four-and-a-half years since October 2021, of about $90,000 per annum, when the evidence before me establishes that he should only have been paid about $30,000 to ensure Weston Vale and Bennetts were kept in good order. On a rough calculation, the total amount of over-renumeration of Frank appears to be in the order of $270,000 (before taking any potential interest into account).

(b) I also refer to my conclusion on key issue (6) agistment and fencing. Since 2022, Frank has run his own sheep on Weston Vale and Bennetts without paying any agistment fees. At the same time, the fencing on both those properties has been in a poor state of repair, making them unattractive and perhaps unavailable for third party agistment on commercial terms. The defendant has given no persuasive explanation for why the fencing should have been allowed to remain in this state. As a result, the estate has lost the opportunity to earn agistment income in a material, although unquantified, amount.

(c) As to the quantification of lost agistment income, I decline to make a finding on that issue, save to say that the value of the claim against the defendant would be substantial. As noted earlier in these reasons, the trial commenced with a pleading and evidentiary dispute between the parties as to whether quantification of lost agistment income was an issue properly before the Court, and about the scope of any expert quantification evidence to be admitted into evidence. In the event, some such evidence was admitted through cross-examination, but by that time I had disallowed a proposed pleading raising the issue of quantification. It follows, in my view, that I should not reach any conclusion quantifying the amount of lost agistment income. Suffice it to say that the evidence suggests that the value of lost income was substantial and that the claim is worth pursuing.

446 As to the criterion in subparagraph (c), I am also satisfied that it is met. The plaintiff emphasised that the defendant should be subjected to a higher standard of care as a paid, professional administrator and trustee. Whether or not a more stringent duty should be applied to the defendant, in my view the plaintiff has established a prima facie claim of negligence against the defendant for the losses addressed in key issues (3) and (6) above. The evidence as it currently stands supports a claim of devastavit against the defendant on the basis of its excessive remuneration to Frank for his work after October 2021, and its failure to take reasonable steps to ensure estate lands were made available for agistment.

447 After October 2021, it should have been obvious to the defendant that Frank was no longer required to do as much as he previously had to, because the farming operations of the partnership had come to an end. The defendant should have turned its mind to the question of what was required for Frank to ensure the estate properties were properly maintained and what was a reasonable level of remuneration for that task. The defendant should also have considered what needed to be done to enable the properties to earn third party agistment income, and at the very least should have levied agistment fees on Frank for Frank being permitted to run his own sheep on the properties.

448 Under cross-examination, Mr Tunks was unable to provide any convincing explanation of the defendant's position on either of these matters.[397]

449 As it was, apparently by reason of failing to turn its mind to these matters adequately or at all, the defendant left in place a set of arrangements that provided no incentive to Frank to finalise his arrangements to purchase Weston Vale, and every incentive to delay. For as long as that delay extended, Frank would continue to draw a salary of about $90,000, which was excessive for what was required of him, and he would continue to be able to run his own sheep on Weston Vale and Bennetts without having to pay agistment fees. There was little risk to Frank presented by the delay, because Frank had the expectation of eventually obtaining Weston Vale at the valuation struck in March 2022, and the market rose soon after and has stayed above the valuation that was used.

450 This state of affairs has entailed losses to the estate, in the form of the excessive remuneration to Frank and the agistment income foregone. It also entailed disadvantage to the other beneficiaries in the form of materially delayed distributions of the proceeds of sale of Weston Vale and Bennetts. In granting extensions of time to Frank to make offers and obtain finance, the defendant seems not to have given the adverse effects on the beneficiaries of delayed distributions sufficient weight, or perhaps any consideration at all.

451 On the one occasion when Mr Tunks was directly involved in the administration of the estates, in August and September 2021, through him the defendant gave determinative weight to the expedience of settling any dispute about the debt owed by Frank to the partnership. That was perfectly permissible and reasonable at the time, and furnishes a valid reason for the defendant to have struck its agreement with Frank in March 2022, but it does not justify the delay and tolerance of inaction that occurred between March 2022 and September 2023. Nor does it justify the failure of the defendant to ensure that its financial arrangements with Frank pending transfer of the estate properties were on a reasonable and commercial basis.

452 A reasonable executor in all the circumstances of the case would have thought about such issues by October 2021, when de-stocking of the properties had been achieved, and would have taken proactive steps in the period very soon after de-stocking of the estate properties to ensure that Frank's remuneration was recalculated to an appropriate lower level and to ensure that the properties earned agistment fees.

453 As the defendant's senior officer and presumed guiding mind, Mr Tunks was unable to explain the defendant's failures to attend to these matters. Under cross‑examination, Mr Tunks was unable to provide any convincing explanation of the defendant's conduct on either of these matters.[398] The Court does not know whether consideration of these issues occurred at a lower level in the defendant's organisational structure, because no other witness from the defendant gave evidence at trial.

454 Whether these matters should lead to removal of the defendant from its role in the administration of the estates is addressed under key issue (13) removal, below.

455 As an alternative submission, the defendant proposed in its closing submissions that any excessive renumeration it paid to Frank, and any failure to obtain agistment fees from Frank, could both be solved by raising debts against Frank and deducting them from Frank's estate entitlements.[399]

456 These submissions failed to engage with the substance of the case being put by the plaintiff. The plaintiff's case was that the defendant was liable for failing to prevent waste of the estates by overpaying Frank and failing to make an agistment contract with him as a condition of him running his sheep; the plaintiff made no claim against Frank.

457 Further, the proposals in the submissions would (self-evidently) disadvantage Frank. However, Frank is not a party to the proceeding, and (when Frank was called to give evidence on behalf of the defendant at the trial) Senior Counsel for the defendant did not put these proposals to him.

458 Further, I doubt whether either of these suggestions would be lawful. In particular, the proposal to alter Frank's remuneration retrospectively would seem inconsistent with basic principles of employment law. It is, at best, also unclear how the defendant could retrospectively assert an entitlement to agistment fees from Frank, where no such agreement was ever in place between the defendant and Frank.

459 Finally, it is unclear how the mechanics of the proposed adjustments against Frank's entitlements could operate in a manner consistent with other aspects of the defendant's case. If they were implemented, there would be, it appears, at least a risk that the arrangements for sale to Frank of Weston Vale which the defendant says are in place would be disrupted. As will be recalled, those arrangements depend on the entire allocation of Frank's expected net entitlements to distributions as consideration for the purchase (along with Rene's and a cash supplement).

460 Based on key issues (2) to (7), has the defendant improperly preferred the interests of Frank over other beneficiaries?

461 This issue is perhaps the most contentious matter of all. It calls for the Court to form an impression from all the correspondence and dealings in the matter and to reach a conclusion on that impression as to whether the defendant has shown preference to Frank over (in particular) Patricia and Andrew, such that they can no longer reasonably have confidence in the defendant finalising the administration in an impartial manner.

462 On the basis of my impression of the matter as a whole, there is a reasonable basis for Patricia and Andrew to think that the defendant has demonstrated partiality and preferment toward Frank's interests over theirs in the past, raising the possibility that it might recur in the future.

463 My conclusion as to past partiality arises from: first, the defendant's repeated indulgences and extensions of time allowed to Frank in his dealings with the defendant over the proposed sale of Weston Vale, secondly, over its failure to reconsider and revise the level of remuneration being paid to Frank after October 2021, and thirdly over the defendant's failure to take reasonable steps to ensure that the estate properties of Weston Vale and Bennetts were made to earn agistment income in and from 2022, to the benefit of Frank, who was running his own sheep on those properties.

464 Should this lead to the removal of the defendant from its office in the administrations of the estates? Much depends on what remains to be done to finalise those administrations. If there is virtually nothing left to be done, there would be an argument that it would be futile to remove the defendant, in spite of a reasonable apprehension of partiality toward Frank having arisen from its past conduct. I address this matter further under key issue (12) outstanding tasks and key issue (13) removal, below.

465 Based on all the above, has the defendant breached duties to the plaintiff?

466 The plaintiff alleges the existence and breach by the defendant of the following duties:

(a) the duty to be impartial;

(b) the duty to treat beneficiaries equally and without preference;

(c) the duty to act efficiently and expediently in the administration of the estates;

(d) the duty to cooperate to ensure the efficient and timely sale of the estate's property;

(e) the duty to avoid undue delay in the administration of the estate;

(f) the duty to protect the estate from waste; and

(g) the duty to maximise the value of the estate for the benefit of all beneficiaries.[400]

467 The defendant denied owing the above duties, save that it admitted that it owed duties that it described as follows:

(i) A duty to 'get in' the estates;

(ii) A duty as a fiduciary to act in the best interests of all beneficiaries.

(iii) A duty as a fiduciary not to breach the 'no conflict' rule unless, permitted by a will or otherwise by law;

(iv) A duty as a fiduciary not to breach the 'no profit' rule, unless permitted by a will or otherwise by law;

(v) A duty to preserve the estate property prior to its distribution;

(vi) A duty to keep proper accounts and records and to account to the beneficiaries; and

(vii) A duty to distribute the estate in accordance with the will or the rules as to intestacy.[401]

468 It denied breaching any of these duties,[402] and in particular it denied alleged breaches in connection with its responsiveness to requests for information,[403] excessive remuneration of Frank,[404] allowing Frank to run his own sheep without paying agistment,[405] failing to ensure proper reconciliation and timely sale of estate (partnership) sheep,[406] and excessive delay in administering the estates.[407] By its submissions it clearly also denied allegations that were added in the amended statement of claim concerning failure to oversee Frank's work, delay in sale of the plant and equipment and failure to agist the estate land.[408]

469 Neither of the parties made very detailed submissions on the doctrinal origins in support of the competing formulations of executors' duties they relied upon. In substance, there was common ground between the competing formulations relating to the issue of wastage. The plaintiff contended that there was a duty to protect the estate from waste and a duty to maximise the value of the estate for the benefit of all beneficiaries. In substantively similar terms, the defendant accepted that there was a duty to preserve the estate property prior to its distribution. If, by using the word 'preserve', the defendant intended to suggest that only passive measures are required, I do not accept this. In my view, preservation may require active steps, such as prudent investment or other reasonable efforts to obtain a return on assets, such as income from the use of land.

470 Nor did the parties make it clear whether the existence and breach of a duty was a prerequisite for the Court concluding that an executor is unfit to continue in the role, for the purposes of s 34(1)(c).

471 In my view, there is no such prerequisite. No doubt, if a breach of an executor's duty were to be established, that would be highly probative of the issue of whether the executor should be removed as unfit. But it does not follow that the executor cannot be found unfit unless a breach of duty be established.

472 Strictly speaking, with one exception, I am not persuaded that it is necessary for me to state conclusions on the allegations of breach of duty that were made by the plaintiff, or to decide between the competing formulations of the relevant duties. The exception is the issue of wastage. In substance, the existence of a duty not to cause waste was common ground. And as I have already explained, there is a strong prima facie case on the current evidence that the defendant has caused waste to the estates by reason of its excessive remuneration of Frank since October 2021 and its failure to take reasonable steps to ensure that Weston Vale and Bennetts earned agistment income in roughly the same period. Causing waste in these respects would amount to a breach of duty. This conclusion is highly relevant to key issue (13) removal.

473 The defendant pleaded that, in the event that it was found that it had breached its duties, it had acted reasonably and honestly and ought fairly to be excused from any personal liability.[409] This defence was not the subject of developed submissions. In any event, in the circumstances which give rise to the strongly or reasonably arguable claims against the defendant regarding waste of the estates on grounds of excessive remuneration of Frank and failure to take reasonable steps to ensure the estate earned agistment income, I am not persuaded that the defence of acting reasonably will be made out. A finding is open that the defendant did not act reasonably and ought not to be excused.

474 What remains to be done to finalise the administrations?

475 In its defence, in November 2024, the defendant alleged that the only matter remaining was the sale of Bennetts.[410] In her reply in December 2024, the plaintiff denied the allegation and foreshadowed further particulars.

476 The defendant's evidence did not establish the allegation that the only remaining task was the sale of Bennetts. The defendant's principal witness was Mr Tunks. His evidence in chief was prepared (in written form) in May 2025.[411] It did not explicitly address the remaining tasks. His oral evidence did not address this issue in any systematic way.[412]

477 On 24 July 2025, the plaintiff provided the following particulars of her allegation that there were other outstanding matters in the administrations, as follows:

To the best of the plaintiff's knowledge at this time, the outstanding estate administration matters include:

1. Sale of Weston Vale.

2. Sale of Bennetts.

3. Calling in of the amounts due to the estates by the partnership (which requires the sale of plant and equipment and adjustment of Frank Burke's debt).

4. Any necessary compensation claims against the defendant for loss caused to the estates.

5. Resolution of any claim for payment of legal costs out of the estates (by the plaintiff, defendant, other beneficiaries and any incoming legal personal representative).

6. Resolution of any claim for a litigation fee by the defendant.

7. Resolution of any claim for corpus commission by the defendant.

8. Preparation of true and just accounts in Form 3-6AA verified by affidavit.

9. Preparation of true and just inventories verified by affidavit.

10. Preparation of financial statements.

11. Payment of tax (including capital gains tax), GST and any other liabilities.

12. Payment of final distribution to beneficiaries, adjusted to take into account the $20,000 to be paid out of Richard Burke's estate to each of the plaintiff, Rene Burke and Mary's estate and $10,000 to each of Nicholas Twaddle and Sophie Twaddle to equalise the payments of $20,000 made to each of Louise Burke and Frank Burke out of Richard's bank account by Rene Burke purportedly acting as his Power of Attorney.

478 I did not receive evidence as to item 12 in the particulars provided by the plaintiff and make no finding about it. As to items 8, 9 and 10, I accept that it will probably be necessary for the defendant to prepare true and just accounts and inventories, and financial statements (updated from the previous financial statements which have been prepared by the defendant). However, the defendant will probably be required to prepare those records regardless of the outcome of the removal application.

479 Subject to the remarks in the preceding paragraph, I am satisfied that the other tasks particularised by the plaintiff remain outstanding, and there is an open question about whether they should be performed by the defendant or by a newly appointed, independent, administrator. In short, on all the evidence, I am satisfied that the plaintiff is correct in alleging that numerous outstanding tasks remain to be performed. I have given this point significant weight in deciding to remove the defendant.

480 Chief amongst the outstanding tasks are the sale of Weston Vale and Bennetts. It is unclear just how far this topic must be revisited. As noted under sub-issue 2(c) above, there is uncertainty about whether there is an enforceable agreement in place with Frank and whether the time for its performance might have passed, or what the detailed terms of the contract and settlement deadline should be. Depending on the answers, this task might involve reconsideration of the mode and terms of sale.

481 If there is no binding agreement in place (a conclusion that could only be reached in a proceeding to which Frank is a party), much more remains to be done. There is a possibility that the properties should be sold on the open market.

482 As I conclude under the next heading, owing to the defendant's chequered history in its dealings with Frank over this matter, it is best that a newly appointed administrator be entrusted with the role.

483 The plaintiff contends that its dealings with Frank over Weston Vale have placed it in a position of irreconcilable conflict, and contends that there are other matters requiring review or investigation that the defendant cannot conduct impartially. Principal amongst these are the plaintiff's claims that:

(a) the defendant undertook to wind up the partnership, but delayed winding up the partnership and in the meantime allowed Frank to manage Weston Vale and Bennetts in various ways that caused losses to the estates relating to stocking the land with sheep, upkeep of fences, agistment income, and plant and equipment;

(b) as to fencing and agistment, the defendant allowed (and continues to allow) Frank to use Weston Vale and various related assets since October 2021 for his benefit, without due upkeep that would make them readily capable of earning agistment income from third parties, and has otherwise failed to ensure the estates earned agistment income;

(c) for many years the defendant paid Frank remuneration for managing Weston Vale and Bennetts, but the remuneration it has paid since October 2021 (after all vestiges of the partnership operations ceased) has been excessive, because Frank's role for the estates in that period has been no more than the role of maintenance supervisor; and

(d) the defendant is proposing to levy fees and commission that is excessive in all the circumstances.

484 The defendant responded by denying that any such significant matter for inquiry has arisen, submitting that it should be left to conclude the administrations (for which not much remains to be done), and that any issues for inquiry can be dealt with by a process of ascertaining any debts owed to the estate and where possible making adjustments in final distributions.

485 I have expressed my conclusions on all these key issues in the preceding sections of this part of my reasons, from key issue (1) responsiveness to key issue (12) outstanding tasks.

486 Based on all these matters, should the defendant be removed from its office as executor/administrator and trustee of the estates?

487 That is not a conclusion to be reached lightly. As the defendant pointed out, replacing the defendant is likely to come at a cost: a new administrator will have to familiarise themselves with relevant matters, involving some delay and cost to the estates. Further, the pursuit of any necessary investigations into claims against the defendant may involve further cost and delay.

488 Fully mindful of these risks and costs, for the reasons that follow, I have nevertheless reached a clear conclusion that the defendant is unfit to continue in its role as executor/administrator and trustee of these estates, and that it should be removed.

489 In the sections that follow, I explain the weight I have placed on my analysis and conclusions on each of the key issues identified earlier in these reasons.

Weight placed on key issues (1) and (7) defendant's responsiveness/delay

490 I concluded that the proceeding was reasonably commenced by the plaintiff, who had no other option available to her in the face of intractable delay by the defendant and its predecessor, Sandhurst.

491 The defendant then improved its level of engagement with and responsiveness to the beneficiaries, and achieved some progress in the administrations from July 2019 to late 2021. However, it seems unlikely that much of the progress that was achieved in the administrations of the estates from 2019 to 2021 would have been achieved, at least in that timeframe, without the plaintiff's persistence. Concerningly, the defendant also provided an incorrect and antagonistic letter (through its solicitors) to the plaintiff on 9 April 2021. Its engagement and responsiveness in the period after September 2023 was unsatisfactory, as shown by the success of the plaintiff's discovery application, which required the defendant to reveal correspondence it had carried on with Frank concerning Weston Vale that it had not disclosed to the plaintiff at the time.

492 I have given my conclusions on the issue of the defendant's responsiveness some weight in deciding the removal application. It tends to support removal of the defendant, although it is not decisive on its own.

493 The delay in finalising these administrations, particularly that of John Burke Snr's estate, has been extreme. I have considered the overall contribution of the defendant to delay in finalising the administration of the estates, and I have found it to be substantial. Although I would not have concluded that the defendant should be removed purely on the basis of delay (because the administrations have been difficult and the beneficiaries have also contributed), I have taken the defendant's contribution into account, and in doing so I have given it significant weight.

Weight placed on key issue (2) defendant's dealings with Weston Vale

494 As noted under sub-issue 2(a) above, the dealings and arrangements made between the defendant and Frank for the sale of Weston Vale were, from 9 April 2021, inconsistent with the defendant's prior representations. The defendant agreed to a deadline of late March 2021 for Frank to provide a proposal to purchase Weston Vale, and that such proposal would be put to consultation and had to be acceptable to all the beneficiaries. Its dealings with Frank constituted a reprobation of this.

495 This reprobation played a role in the subsequent relationship and course of interactions between the defendant and plaintiff, and this cannot be ignored. It contributed to an erosion of confidence in the impartiality of the defendant. To that extent, I must give the conduct of the defendant in resiling from its previous representations some weight.

496 However, I consider the defendant to be protected from any finding of a direct breach of duty in connection with its entry into the (alleged) agreement with Frank to sell Weston Vale in March 2022. The Court's judicial advice given in October 2021 expressly permitted the defendant to decide on the mode of sale and affords such protection to the defendant. I have therefore not treated the dealings leading to the exchange of correspondence in March 2022 as directly capable of generating a finding of irreconcilable conflict. I have merely weighed them as part of the background facts, and have formed the view that they contributed to the facts that have eventually led the plaintiff to complain that the defendant cannot be trusted to be impartial in future, and to the view that the plaintiff has a proper and reasonable foundation to be apprehensive about this.

497 I expressed some views under sub-issue 2(c) as to whether there is and remains a binding agreement between the defendant and Frank for the sale of Weston Vale. There is a reasonable argument that there was a binding agreement, but uncertainty as to the time by which it must be performed, and some uncertainty as to whether a reasonable time for performance may by now already have passed. If there is no such binding agreement in place, much remains to be done to complete the administrations, and the argument for an independent administrator to take over the role is more compelling. I give some weight to these views in deciding the removal application.

Weight placed on key issues (3) and (9) Frank's remuneration/wastage

498 There is a strong claim of wastage against the defendant on the basis of the defendant's continuing payment of $90,000 to Frank after October 2021, and I give this significant weight in deciding on the removal of the defendant from its role as executor, administrator and trustee of the estates. This matter is a compelling reason for removing the defendant from its role.

Weight placed on key issues (4) and (5) partnership sheep/plant and equipment

499 I do not regard the claim against the defendant for undue delay in sale of partnership sheep, prior to October 2021, as likely to be established, and I give it no weight. Likewise the plaintiff has not established a compelling claim for undue delay by the defendant in ensuring the sale of plant and equipment. The explanations given in correspondence on behalf of the defendant for the delays in arranging sale of the partnership plant and equipment to Frank or the public are somewhat complicated, but do not strike me as unreasonable. The defendant has allowed Frank to use the plant and equipment to maintain the estate properties pending transfer of Weston Vale, at which time Frank is to be permitted to purchase (at market rates) any plant and equipment he wishes, and the balance will be offered to the public. While imperfect, this arrangement is not manifestly unreasonable or imprudent. I am not persuaded that there is a prima facie case that the defendant has caused waste to the estate in this regard.

Weight placed on key issues (6) and (9) agistment and fencing/wastage

500 There are strong claims against the defendant of causing waste of the estates on the grounds that the defendant has (since October 2021) failed to take reasonable steps to ensure that the estate lands earn income from agistment pending finalisation of the administration of the estates. As a corollary to this claim, there is a strong claim that the defendant has failed to ensure that the fencing of Weston Vale and Bennetts be in an appropriate condition for commercial agistment, and has effectively allowed Frank to run his own sheep on estate lands and thus use the lands for his own business without compensating the estates by paying agistment fees. These matters carry very significant weight in my determination of the removal claim. The add to a compelling case for removal. They also provide a reasonable basis for apprehension that the defendant will not be able to discharge its remaining tasks impartially.

Weight placed on key issue (8) fees and commission

501 As mentioned earlier in these reasons, I have concerns about aspects of the fees and commissions in the case, and expect that an application will be made (if the matter cannot be resolved by agreement) for reduction under s 65A of the Administration and Probate Act. However, such an application may be made without removal of the defendant from its role, and so I do not give it any significant weight in the removal application. Its only relevance is somewhat indirect and peripheral: a reduction in commission is a matter that would be of benefit to all beneficiaries, so the risk and cost burden of pursuing a claim might more fairly and efficiently be left to a new administrator (who can draw on the estate as a whole for reimbursement of relevant costs) with the ultimate economic burden to be spread evenly amongst the beneficiaries.

Weight placed on key issues (9) and (11) wastage/breach of duty

502 The compelling claims the plaintiff has articulated against the defendant for wasting the estate, on grounds of excessive remuneration to Frank and lost agistment income after October 2021, are very significant matters to which I gave great weight in deciding to remove the defendant.

503 As already noted, I consider the approach in the English cases, and in particular in Long v Rodman,[413] to be highly persuasive and open to be followed in this case. Because of the compelling claims of wastage (devastavit) against the defendant, this too is a case in which 'there are intimated claims against [the executor] which need to be investigated',[414] and in which an independent administrator should be appointed to undertake that task. Although, technically speaking at least, the plaintiff could pursue a claim of devastavit herself, the factors noted in Long v Rodman and the earlier decision of In re Folkes tend here, as they did in those cases, to support the appointment of a new, independent administrator, to investigate and if necessary pursue that claim. That course will spread the risk and burden attaching the role more fairly and efficiently, and bring an independent and objective perspective to the role.

504 In all the circumstances of the case, this is not a claim that should be left to the plaintiff to pursue as a derivate action on behalf of the estate. It is more appropriate that responsibility for investigating the claim, deciding whether to pursue it and (if so) negotiating and prosecuting it, be placed in the hands of a new administrator.

505 My conclusions on key issue (11) breach of duty do not add materially to the analysis, but for completeness I also mention that issue. The well-founded claims the plaintiff has identified against the defendant for wastage of the estate may, in my view, also be treated as claims of breach of duty. It does not matter whether one sees the claims in question as claims for wastage, or claims for breaches of duty to protect the estate and not cause waste. Either way, I give them significant weight. Either way, they strongly support the removal of the defendant and appointment of a new administrator.

Weight placed on key issues (10) and (12) preferment / outstanding tasks

506 Further, I have concluded that three aspects of the defendant's conduct have given rise to the appearance of partiality toward Frank, or preferment of his interests: first, the defendant's repeated indulgences toward Frank in his dealings with the defendant over the proposed sale of Weston Vale, secondly, over its failure to reconsider and revise the level of remuneration being paid to Frank after October 2021, and thirdly over the defendant's failure to take reasonable steps to ensure that the estate properties were made to earn agistment income in the period after October 2021. This was to the benefit of Frank, who was running his own sheep on those properties from 2022.

507 In my view, the second and third bases alone would have led me to the same conclusion.

508 I have given significant weight to the reasonable appearance of partiality that has arisen on these bases. As a result, the beneficiaries of the estates, and particularly Patricia and Andrew, now have a reasonable basis for fearing that the defendant will not discharge its remaining responsibilities properly and impartially. They should not be expected to remain subject to administration by the defendant in these circumstances. Depending on the enforceability of the terms of sale of Weston Vale to Frank, there may remain a task of very great significance for the administrator still to perform. And, even if the agreement for sale of Weston Vale struck with Frank in March 2022 is binding and must be performed by the administrator, there will still remain a number of other significant tasks to be performed in finalising the administrations.

509 Given that its past conduct has created the appearance of partiality toward Frank's interests over other beneficiaries' interests, the defendant is not fit to remain in its role and should be removed.

510 Having regard to all the above considerations, is it necessary for the welfare of the beneficiaries as a group, and in the interests of the beneficiaries, to remove the defendant?

511 The majority of the beneficiaries say it is not. Patricia and Mary's estate on the other hand say it is imperative to investigate the Weston Vale sale issues independently and for the estate to be free to take action to achieve the best sale price and to pursue any claims against the defendant that properly arise. They say this necessitates defendant's removal even if it be the case that delay and further costs will inevitably result.

512 The question of whether to remove the defendant from its office as administrator/executor and trustee in all the circumstances of the case is principally a matter of weighing the interests of the beneficiaries in achieving finality in a timely manner against the interests of the beneficiaries in facilitating a reasonable investigation (and if necessary, pursuit) of the claims the plaintiff says can or might be established against the defendant.

513 Appointing a new administrator and trustee would be likely to cause further delay and expense in what have already been very protracted administrations, and would entail a real risk of further litigation in the event that any new administrator considers it appropriate, following investigation, to pursue claims against the defendant. The plaintiff's response to this point is that, while further delay, cost and potential litigation is regrettable, the interests of facilitating a proper investigation of the matters raised by the plaintiff, and (if deemed appropriate) a pursuit of the claims against the defendant, should be given priority.

514 The principal beneficiaries are divided in their positions on the issue. Along with the plaintiff, Andrew favours removal of the defendant. Frank and two of the other sisters (Rene and Louise) are opposed to the defendant being removed at this late stage. Rene has a personal interest in the terms for the sale of Weston Vale and is aligned with Frank. Louise has no such interest or any other obvious reason to be aligned with Frank. She testified that she wishes the administration to be brought to a rapid end with the defendant left in place to complete the job. She testified convincingly of the tolls the protracted administration have taken on the family and pleaded for the defendant to be left in place to finish the job.

515 The fact that a majority of the beneficiaries favour leaving the defendant in place to complete the administrations is a weighty, but not a decisive, consideration.

516 The prospect of the further costs and delay being occasioned by the appointment of a new administrator is a daunting one. However, there have been years of delay in the defendant's management of the sale of Weston Vale, and the defendant's contribution to this delay has been very significant. Its frequent prevarications, indulgences to Frank, and inconsistent representations about the sale of Weston Vale to Frank inspire no confidence that the defendant, if left in place, would be able to finalise the sale with great expedition.

517 Further and in any event, the plaintiff has established that there is a strongly arguable claim against defendant for wasting the estate's assets, and that the facts surrounding those claims form a reasonable basis for apprehension that the defendant is biased or partial toward Frank, preferring his interests over those of the other beneficiaries, and over the objections of Patricia and Andrew. Significant tasks remain to be done to finalise the administrations, and not all the beneficiaries can have reasonable confidence in the defendant carrying those tasks out without preferment of the interests of Frank.

518 In short, I am satisfied the defendant is in a position of reasonably perceived conflict due its past preferment of Frank, that important tasks remain outstanding that will call for the exercise of judgement by the administrator, and that for these reasons the defendant is unfit to continue in its role.

519 In the end, I am firmly persuaded that removal of the defendant is in the overall interests of the beneficiaries as a whole, and in the interests of the estate.

520 I refer to the discussion earlier in these reasons for judgment concerning the principles applicable to an application for removal of this kind, especially at paragraph 36(a) and (b) above. For the reasons I have explained in the preceding paragraphs of this section, I am satisfied that the defendant is unfit to continue in the role and my discretion to remove the defendant has arisen. Does it follow that I should exercise that discretion? Is there some alternative measure, falling short of removal, that would be sufficient to address the issues that have arisen?

521 In this regard, I have turned my mind whether it might be sufficient to give detailed directions to the defendant as to the finalisation of its administration, and to closely supervise that it does so appropriately and impartially. After reflection, I am not satisfied that this would be an appropriate course. Neither party formulated the kinds of directions that would be needed. It is also unclear whether that approach could ever dispel the perception of partiality in favour of Frank that has arisen from the defendant's past conduct.

522 The defendant has given an unsatisfactory account of its reasons for the various changes in its position on the mode of sale of Weston Vale in 2021, for its failure to engage with the plaintiff's concerns about excessive renumeration paid to Frank, and for the failure of the defendant to obtain agistment income from either Frank or third parties. This leads me to the conclusion that there was a disconnection between the operational level and the executive or directional level in discharging the defendant's responsibility for administration of the estates. Mr Tunks, the only witness called from the defendant, was simply unable to explain much of what occurred.

523 Considering the above matters cumulatively, the Court is left with no confidence that it would serve the interests of the beneficiaries and the estate as a whole to decline to exercise its discretion to remove the defendant. I am positively satisfied that I should remove the defendant. This conclusion would be the same even if I were to ignore completely the conduct of the defendant leading up to its acceptance of Frank's offer to purchase Weston Vale in March 2022.

524 Before concluding, I return to the point that has not influenced my decision to remove the defendant, but is important and should not pass without comment. I noted earlier that the defendant proposed, in its closing submissions, that any excessive renumeration it paid to Frank and any failure to obtain agistment fees from Frank, could both be solved by it raising debts against Frank and deducting them from Frank's estate entitlements.[415] For the reasons set out at the end of my discussion key issue (9) wastage, above, I rejected those submissions. The submissions perhaps provide insight into the defendant's view of its role. That insight does not inspire confidence. My decision to remove the defendant from its role is not based on these reflections, because they relate to an aspect of the legal submissions of the defendant, as opposed to its conduct of the administrations. Nevertheless, this matter serves to reinforce the correctness of the outcome of the case.

525 I will hear the parties on the form of orders that are appropriate to implement the conclusions reached in these reasons.

526 I propose to make orders removing the defendant from its roles, and appointing an appropriate person or entity to take over those roles. There is evidence before the Court of the consent provided in 2025 of an experienced practitioner in the area, Ines Kallweit, and Ms Kallweit may still be available. However, I will receive further evidence and hear any submissions the parties or other beneficiaries wish to make before making final orders appointing her.

527 I also propose to give judicial advice and directions pursuant to ord 54 to the new administrator to encourage the speedy and appropriate finalisation of the administrations, and in particular to ascertain the status of the agreements said to have been made with Frank for the sale of Weston Vale and Bennetts and (if appropriate) to see them duly performed.[416] Frank should be joined to the proceeding for that purpose, because his interests are directly affected. It may be appropriate to give declaratory relief about those agreements and to ascertain or impose a deadline for settlement.

528 My preliminary views are that, subject to any contractually binding constraints, sale and settlement of Weston Vale and Bennetts should occur within a definite, brief, time frame.

529 Further, I am concerned about the past commission charged by Sandhurst and the defendant, and the future commission the defendant submitted it is able to charge the estates, as well as the question of both parties' costs of this proceeding to date.

530 I will hear the parties on appropriate orders and next steps.

[1] See Corporations Act 2001 (Cth) s 601RAB. See also Corporations Regulations 2001 (Cth) reg 5D.1.01A, sch 8AA.

[2] Transcript of Proceedings, Burke v Australian Executor Trustees Ltd (Supreme Court of Victoria, S ECI 2019 03133, Gray J, 7-8, 11-13, 26 August, and 15 September 2025) 337.17-30 (Transcript Days 2 to 8).

[3] With effect from 1 March 2024: amended statement of claim filed 7 August 2025, [2(d)] (amended statement of claim); defence filed 13 November 2024, [2(a)] (defence). The defendant is administrator of the estate of John Burke Snr and the executor of the estates of Richard Burke and Dorothy Burke.

[4] Pursuant to a transfer determination, referred to in amended statement of claim and defence, [3(a)]. See also Corporations Act 2001 (Cth) s 601WBA(1).

[5] Long v Rodman [2019] EWHC 753 (Ch), [26], [68]-[69] (Chief Master March); In re Folkes [2017] EWHC 2559 (Ch), [41] (Deputy Master Linwood).

[6] See Administration and Probate Act 1958 (Vic) s 34; Trustee Act 1958 (Vic) s 48. Leave to amend the originating motion was granted and the amendments were made in February 2024.

[7] See statement of claim filed 11 October 2024 (statement of claim); defence; reply filed 6 December 2024 (reply); amended statement of claim.

[8] Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 611-612 [132] (Dodds-Streeton AJA, Winneke P agreeing at 586 [1], Batt JA agreeing at 593 [15]).

[9] See amended statement of claim, prayer for relief, paragraphs A-C, E-G, K-M. Pursuant to paragraph C, the plaintiff seeks an order appointing Ines Kallweit as administrator of the estates, on the basis of her undertakings and consent given by affidavit made on 30 July 2024: ex 617, CB 4433-4441.

[13] More specially, the affidavit explained (in a somewhat clearer and more direct way than Mr Tunks' earlier evidence had done) the defendant's treatment of an amount of $405,574 (known as the 'partnership adjustment', explained later in these reasons) debited from Frank's 'sub-account' for the purposes of calculating the total value of his entitlements to assets of the estates.

[14] See plaintiff's submissions filed 30 September 2025. The plaintiff took issue to the defendant's reduction on 3 February 2022 of the 'partnership adjustment' by about $15,038 (from about $420,574 to about '$405,274', or perhaps, $405,536): ex 331, CB 2056. In her submissions filed 30 September 2026 at [7], the plaintiff advanced no further arguments on that issue. The explanatory reasoning of the defendant on this issue is sound and I am not persuaded by the plaintiff's complaint about it.

[15] Cicvaric v Blazevic [2024] VSC 450, [57], [59] (Goulden AsJ); Re Johnson; Blackham v Blackham [2024] VSC 497, [46] (Keogh J). See also Neylon v Iacovino [2025] VSC 511, [21]-[24] (Gray J).

[16] [1936] HCA 13; (1936) 54 CLR 572.

[17] Ibid 580-581 (Dixon J), considered in Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 607-608 [111]-[113] (Dodds-Streeton AJA). See also Cicvaric v Blazevic [2024] VSC 450, [58]-[59].

[18] See Fysh v Coote [2000] VSCA 150, [25] (Ormiston JA, with Batt and Chernov JJA agreeing).

[19] [1996] VicRp 7; [1996] 1 VR 65, 72 (Ashley J), approved in Fysh v Coote [2000] VSCA 150 and Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584.

[20] (Supreme Court of Victoria, 30 August 1991) 4 (Nathan J).

[21] [2004] VSCA 141; (2004) 9 VR 584 (Winneke P, Batt JA and Dodds-Streeton AJA).

[22] Ibid 592 [12] (Winneke P). See also 608 [114] (Dodds-Streeton AJA).

[24] Ibid 610 [124] (Dodds-Streeton AJA). See also ibid 597 [45]-[46], 610-614 [125]-[126], [136]-[144] (Dodds-Streeton AJA).

[25] Ibid 611 [127] (Dodds-Streeton AJA).

[27] Ibid 618 [169] (Dodds-Streeton AJA).

[28] Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 575 (Latham CJ); Monty Financial Services Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65, 78 (Ashley J); Wales v Wales [2013] VSC 569, [43] (McMillan J); See v Hardman [2002] NSWSC 287, [17] (Bryson J).

[29] Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 618 [168]-[170] (Dodds-Streeton JA).

[30] Monty Financial Services Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65, 73 (Ashley J). See also Skaftouros v Dimos [2002] VSC 198, [8], [200] (Mandie J).

[31] Skaftouros v Dimos [2002] VSC 198, [200] (Mandie J).

[32] Ibid [14]. See also Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 617 [163] (Dodds-Streeton JA).

[33] Fysh v Coote [2000] VSCA 150, [20] (Ormiston JA). See also Manocchio v Wilson [2012] VSC 76, [38] (Habersberger J).

[34] Fysh v Coote [2000] VSCA 150, [25] (Ormiston JA).

[36] [2019] EWHC 753 (Ch), [26], [68]-[69] (Chief Master March); In re Folkes [2017] EWHC 2559 (Ch), [41] (Deputy Master Linwood).

[37] Administration of Justice Act 1985 (UK) s 50.

[38] Letterstedt v Broers (1884) 9 App Cas 371 (Lord Blackburn). See also Long v Rodman [2019] EWHC 753 (Ch), [22]; Fysh v Coote [2000] VSCA 150, [20] (Ormiston JA); Dimos v Skaftouros (2004) 9 VR 589, 589-590 [6] (Winneke P), 618 [166] (Dodds-Streeton AJA). As to the persuasive value of such decisions, see generally Viro v The Queen (1978) 141 CLR 88, 118-119 (Gibbs J).

[39] [2019] EWHC 753 (Ch), [25]-[27] (Chief Master March).

[40] Ibid. See also In re Folkes [2017] EWHC 2559 (Ch), [24], [41] (Deputy Master Linwood).

[41] [2019] EWHC 753 (Ch), [20] (Chief Master March).

[42] [2004] VSCA 141; (2004) 9 VR 584 (Winneke P, Batt JA and Dodds-Streeton AJA). See also Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 580-581 (Dixon J), cited in Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 592 [11] (Winneke P).

[43] Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 580-581 (Dixon J), cited in Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 589-590 [6], 608 [112] (Winneke P) and Fysh v Coote [2000] VSCA 150, [20] (Ormiston JA).

[46] Ex 1, CB 23.

[50] See defence, [12(b)], [16(b)]; reply, [12(b)], [16(b)].

[51] Ex 1, CB 23-24.

[53] See defence, [8], [11]-[12], [15]-[16]; reply, [8(a)], [11(b)], [12(b)], [15(b)], [16(b)].

[54] Ex 12, CB 251 [9.4].

[55] See plaintiff's outline of opening submissions dated 23 July 2025, [36] (plaintiff's outline of opening submissions).

[59] Partnership Act 1958 (Vic) s 37.

[60] Ex 162, CB 1317.

[61] See amended statement of claim, [59A]-[59B].

[62] Ex 12, CB 250 [9.1]-[9.2].

[64] More specifically, Vol 1653 Fol 436, Vol 1297 Fol 274, Vol 1640 Fol 846, Vol 4465 Fl 974, and Vol 12400 Fols 938-940: ex 12, CB 269. See also, ex 11, CB 138, but compare the title details that appear for Weston Vale in ex 67, CB 708, which differ in some respects. Weston Vale is an asset of John Snr's estate, Jerry's is owned by the estate of Patrick Burke, a son of John Snr who died in 1957, and Tommy's North is owned by the estates of Patrick Burke and another son of John Snr, Michael Burke, who died in 1935: ex 1, CB 25, fn 1; ex [1852] EngR 465; 12, CB 268; ex 13, CB 288.

64A Ex 12, CB 276.

64B Ex 12, CB 277.

[65] More specifically, Vol 8258 Fol 714, Vol 7215 Fol 828 and Vol 7215 Fol 829: ex 12, CB 269. See also, ex 67, CB 708. Bennetts is part of Richard's estate: ex 1, CB 25, fn 2.

[66] Transcript of Proceedings, Burke v Australian Executor Trustees Ltd (Supreme Court of Victoria, S ECI 2019 03133, Gray J, 6 August 2025) 82.22 (Mr Panna KC) (Transcript Day 1).

[67] The defendant's response was distilled into 28 passages in its closing submissions, each section introduced by an unnumbered heading, to which I have allocated a heading number below to assist in tracing the issues for determination: 1. 'Introduction' [1]-[7], 2. 'Pre issue matters' [8]-[20], 3. 'What is in the best interest of all the beneficiaries?' [21]-[36], 4. 'Substantial progress in the administration by Equity Trustees' [37]-[44], 5. 'The sale of Weston Vale/Jerry's to Frank Burke' [45]-[55], 6. 'Did Equity Trustees enter into the Weston Vale sale agreement contrary to an agreement with the plaintiff?' [56]-[57], 7. 'Principle of law or a matter of construction?' [58]-[70], 8. 'A matter of interpretation' [71]-[96], 9. 'Quaere a relevant proposal?' [97]-[103], 10. 'Has Equity Trustees preferred the interests of Frank Burke?' [104]-[160], 11. 'Did Equity Trustees act in conflict of interest in entering into the Weston Vale sales agreement?' [161]-[168], 12. 'Ought Equity Trustees have obtained judicial advice about the Weston Vale sale agreement and conflicting demands by beneficiaries?' [169]-[175], 13. 'The Partnership debt as "leverage" - further to paragraphs 120-122' [176]-[185], 14. 'Discussions between Equity Trustees and Frank Burke in August September 2021 - further to paragraph 119' [186]-[192], 15. 'Threat to sue Equity Trustees - further to paragraph 110' [193]-[200], 16. 'Agistment on estate lands' [201-235], 17. 'Frank Burke not charged agistment' [236]-[248], 18. 'Remuneration and alleged overpayment of Frank Burke' [249]-[283], 19. 'Did Sandhurst Trustees or Equity Trustees manage the Partnership?' [284]-[304], 20. 'What was role of Sandhurst Trustees and Equity Trustees in the Partnership?' [305]-[332], 21. 'Equity Trustees as agent for the winding up of the Partnership' [333-350], 22. 'Alleged failure of sheep stock count'[351]-[356], 23. 'Plant and equipment' [357]-[362], 23. 'Commission and costs' [363]-[393], 25. 'Litigation fee' [394]-[401], 26. 'What remains to be done in the administration?' [402]-[406], 27. 'Summary of issues on whether the defendant be removed' [407]-[420], 28. 'Conclusion' [421]-[423]. For convenience, in the analysis that follows later in these reasons, I refer to these sections simply by the section number I have allocated in this footnote.

[68] As to key issue (1) defendant's responsiveness, see amended statement of claim, [56]-[56A]; defence, [56]. At the trial, I dispensed with the defendant preparing a further defence (to the amended statement of claim), and so I assumed that all new allegations in the amended statement of claim were not admitted or were denied. See also plaintiff's outline of opening submissions, [16]-[18], [48]-[59]; defendant's outline of opening submissions filed 1 August 2025, [100]-[110] (defendant's outline of opening submissions); plaintiff's closing submissions filed 27 August 2025, [8]-[28] (plaintiff's closing submissions); defendant's closing submissions filed 10 September 2025, sections 2, 4, 19, 20 (defendant's closing submissions).

[69] As to key issue (2) defendant's dealings with Weston Vale, see amended statement of claim and defence, [29]-[54]; reply, [47], [48(b)], [50(a)]; plaintiff's outline of opening submissions, [16]-[18], [48]-[59]; defendant's outline of opening submissions [30]-[79]; plaintiff's closing submissions, [29]-[102]; defendant's closing submissions, sections 3 (in particular at [28]-[36]), 5-15; plaintiff's submissions filed 30 September 2025.

[70] See especially plaintiff's closing submissions, [195]-[199]; defendant's closing submissions, section 12.

[71] See amended statement of claim and defence, [48]; reply, [48(b)].

[72] See especially amended statement of claim, [64(b)(i)], [64(c)(i)]; defence, [64]; plaintiff's closing submissions, [191]-[192]; defendant's closing submissions, sections 10-11.

[73] As to key issue (3) Frank's remuneration, see amended statement of claim and defence, [57]-[58]; reply, [57]; plaintiff's outline of opening submissions, [18], [66]-[68]; defendant's outline of opening submissions, [80]-[96]; plaintiff's closing submissions, [134]-[157]; defendant's closing submissions, section 18.

[74] As to key issue (4) partnership sheep, see amended statement of claim and defence, [59]; plaintiff's outline of opening submissions, [19], [60]-[65]; defendant's outline of opening submissions, [111]-[120]; plaintiff's closing submissions, [104]-[113]; defendant's closing submissions, sections 3, 19-21 (as to the relevance of the partnership), 22.

[75] As to key issue (5) partnership plant and equipment, see amended statement of claim, [59A]; plaintiff's outline of opening submissions, [19], [69]-[73]; defendant's outline of opening submissions, [121]-[122]; plaintiff's closing submissions, [114]-[133]; defendant's closing submissions sections 3, 19-21 (as to the relevance of the partnership), 23.

[76] As to key issue (6) agistment and fencing, see amended statement of claim, [59B]; plaintiff's outline of opening submissions, [121]-[122]; defendant's outline of opening submissions [97]-[99]; plaintiff's closing submissions, [158]-[173]; defendant's closing submissions, sections 16-17.

[77] As to key issue (7) delay, see amended statement of claim and defence, [60]; reply [60]; plaintiff's closing submissions [8]-[28]; defendant's closing submissions sections 2-4.

[78] As to key issue (8) fees and commission, see amended statement of claim and defence, [61]-[62]; defendant's outline of opening submissions, [106]; plaintiff's closing submissions, [174]-[187];defendant's closing submissions, sections 24-25.

[79] As to key issue (9) wastage, see amended statement of claim and defence, [63]; the parties' submissions on key issues (1), (2)-(8).

[80] As to key issue (10) preferment, see amended statement of claim [21(a), (c), (g), (j)], [54]; defence, [21], [54]; the parties' submissions on other key issues.

[81] As to key issue (11) breach of duty, see amended statement of claim [21(a), (c), (f)-(j)], [54]; defence, [21], [54]; the parties' submissions on the other key issues.

[82] As to key issue (12) remaining tasks, see plaintiff's closing submissions, [192(a)]; reply, [60]; defendant's outline of opening submissions [123]-[126]; defendant's closing submissions, section 26; ex 616, CB 4431-2.

[83] As to key issue (13) removal, see amended statement of claim and defence, [64]; plaintiff's outline of opening submissions, [3], [14], [16]-[19]; plaintiff's closing submissions, [188]-[194]; defendant's closing submissions, section 27.

[84] Ex 14, CB 289-295.

[85] Ex 15, CB 296.

[86] Ex 16, CB 298.

[87] Exs 19- 20, CB 323-326.

[88] Ex 1, CB 23 [2].

[89] Ex 21, CB 329.

[90] Ex 1, CB 23 [8]-[9].

[92] Ex 137, CB 1101; ex 23, CB 383.

[96] Ex 24, CB 385.

[97] Ex 26, CB 390.

[98] Ex 27, CB 391-392.

[99] Ex 28, CB 393.

[100] Ex 29, CB 394-395.

[101] Exs 30- 32, CB 396-422.

[102] Ex 33, CB 423-424.

[103] See, eg, ex 35, CB 431; ex 36, CB 434; ex 39, CB 437.

[104] Ex 40, CB 438.

[105] Ex 66, CB 695.

[106] Ex 49, CB 511.

[107] Ex 101, CB 990-991.

[108] Ex 41, CB 439; ex 46, CB 467; ex 49, CB 511; ex 53, CB 515; exs 56- 57, CB 673-674; ex 59, CB 677.

[109] Exs 41- 43, CB 439-463.

[110] Ex 44, CB 464; ex 48, CB 510; ex 51, CB 513; ex 64, CB 686.

[111] Ex 44, CB 464-465.

[112] Exs 61- 62, CB 682-684.

[113] Ex 60, CB 678.

[114] Ex 67, CB 707.

[116] This title detail may not be accurate, or it may have been replaced later with different details on the Register.

[117] This title does not appear in the expert reports at exs 11 and 12, and may be inaccurate or it may have been replaced later with new title details on the Register.

[118] This title is repeated in the original Heads of Agreement.

[119] This title does not appear in the expert reports at exs 11 and 12, and may be inaccurate or it may have been replaced later with new title details on the Register.

[121] Outline of evidence of Aaron Tunks filed 21 May 2025 (received as evidence in chief), CB 117 [36] (outline of evidence of Aaron Tunks).

[122] Exs 86- 87, CB 872-874; ex 100, CB 986.

[123] Ex 87, CB 874-875; ex 100, CB 986.

[124] Ex 73, CB 726.

[125] Ex 74 CB 729. On 31 July 2018, 26 September 2018 and 17 November 2018, Frank reported the thefts of sheep to Victoria Police: ex 75 CB 730-735.

[126] Ex 99, CB 983; ex 101, CB 988; ex 161, CB 1313. The plaintiff was concerned that if Frank only purchased the more expensive or desirable items, the other items would be harder to sell.

[127] Ex 74, CB 729.

[128] Ex 105, CB 998-1002; ex 154, CB 1135-1136.

[129] Ex 111, CB 1013; ex 141, CB 1113.

[130] Ex 84, CB 869; ex 85, CB 870-871; ex 110, CB 1010-1012; ex 116, CB 1019-1021; ex 136, CB 1098-1100.

[131] Ex 88, CB 889.

[133] Ex 99, CB 983.

[134] Ex 181, CB 1401; ex 183, CB 1408.

[135] Ex 101, CB 988-994.

[138] Ex 140, CB 1109-1112.

[139] Ex 144, CB 1125.

[140] Ex 162, CB 1317.

[141] Ex 481, CB 3834.

[142] Ex 158, CB 1296.

[143] Ex 481, CB 3835.

[144] Exs 158- 159, CB 1296-1307.

[145] Exs 163- 178, CB 1318-82. See also ex 164, CB 1319-1321.

[146] Ex 180, CB 1384 (misdated January 2020).

[147] Ex 180, CB 1398.

[148] Ex 201, CB 1635.

[149] Ex 205, CB 1642.

[150] As will be seen in the discussion of key issue (2) defendant's dealings with Weston Vale, Mr Fettes' estimate that Frank owed the partnership something over $400,000 led to the defendant (and in particular its senior officer, Mr Tunks) seeking to resolve that debt as part of its approach to negotiating with Frank over the sale of Weston Vale. The plaintiff contends that this was inappropriate.

[151] Ex 208, CB 1649-1651.

[152] Ex 209, CB 1652-1653.

[155] Ex 201, CB 1654-1655.

[156] Ex 211, CB 1656-1657.

[157] Ex 213, CB 1659-1661.

[158] This arrangement dated from financial year 2013: Outline of evidence of Aaron Tunks, CB 127 [76].

[160] Ex 621, CB 4496.

[161] Ex 223, CB 1680-1682 (emphasis added).

[162] See amended statement of claim, [26]-[28].

[164] Ex 272, CB 1815, 1817, 1819. See correspondence regarding sheep sales at: exs 225- 226, CB 1685-1687; ex 228, CB 1690; ex 232, CB 1697.

[165] Ex 233, CB 1698. See also ex 234, CB 1699.

[166] Ex 229, CB 1691.

[167] Ex 230, CB 1693.

[168] Exs 235- 237, CB 1700-1704.

[169] Ex 238, CB 1705 (and its separately tendered email cover page).