Plaintiff v Defendants

1. John David Castle ('the deceased') died on 12 November 2022 leaving a will dated 6 June 2022 ('the Will') and an estate worth approximately $15.5 million. He was survived by his wife Gloria Castle (the first defendant) and his children; Melissa Faye Castle (the plaintiff), Craig John Castle and Patricia Maree Hill (nee Castle).[1]
2. Probate of the deceased's estate was granted on 9 June 2023 jointly to Gloria and Jayman Marc Prestidge (the second defendant), the family's accountant.
3. By originating motion dated 13 October 2023, the plaintiff seeks provision from the estate for her proper maintenance and support, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ('the AP Act').
4. By summons filed 28 November 2024 ('Summons for Discovery'), the plaintiff seeks extensive discovery and has also sought production of substantially the same documents by a Notice to Produce filed on the same day. The defendants oppose discovery and by summons filed 27 March 2025, seek orders setting aside the Notice to Produce. The essential questions for resolution are whether the defendants should be compelled to produce the documents sought by way of discovery or pursuant to the Notice to Produce.
5. For the following reasons I find that neither the Summons for Discovery, nor the Notice to Produce, are appropriate vehicles for the production of documents in this Part IV application. That is particularly so given the fact that the plaintiff has simultaneously issued a separate proceeding (Proceeding Number: S ECI 2024 06466) ('the Trust Proceeding') seeking production of documents as a beneficiary of the relevant trust being the Castle Family Trust. However, having regard to the size and complexity of the estate, I consider it would be appropriate for an independent expert to be appointed to address any valuation issues for determination at the trial of the proceeding.

1. The plaintiff relies on her affidavits sworn on 28 November 2024 and 31 March 2025, and written submissions filed on 21 February 2025.
2. The defendants rely on affidavits of Robert Norton sworn on 31 January 2025, and 21 March 2025, and written submissions filed on 21 March 2025.

1. The deceased conducted business through a range of companies and trusts involving civil construction, property development and land banking, largely in eastern Victoria. The main development is the Crownlea project in Warragul (also called Gearys) which is a long term multi-stage development of approximately 1,200 homes that is expected to take more than a decade to complete.
2. The deceased's assets and interests, broadly defined, included real estate, loans, shareholdings, directorships and beneficial entitlements under a number of trusts including trading trusts with corporate trustees, and a family discretionary trust. These assets and interests are described in the Will as 'Estate Wealth' and 'Non-Estate Wealth' and are collectively referred to as the deceased's 'Aggregate Wealth.'
3. The family discretionary trust is the Castle Family Trust, of which Hedera Anna Nominees Pty Ltd ('Hedera Anna') is trustee. The deceased was the holder of one of two issued shares in Hedera Anna, with the other shareholder being Gloria. The objects of the trust, described as 'main beneficiaries,' are Gloria, the plaintiff, Craig and Patricia.
4. The Crownlea development site is owned by Warragul South Pty Ltd ('Warragul South') which is a wholly owned subsidiary of Hedera Anna as trustee for the Castle Family Trust. The plaintiff says the trust is worth a substantial sum. Other main entities, as described by Gloria, are:

(a) Jana Land Pty Ltd ('Jana Land'): Gloria says Jana Land has been one of the main sources of funds for developments. In her April 2024 affidavit Gloria says that Jana Land had about $15 million in retained earnings but that it only held about $634,000 in cash and that was expected to be loaned to Warragul South for development purposes connected with the Crownlea Project. Gloria says that $13,640,000 of Jana Land's retained earnings are subject to intercompany loans of varying amounts to eight different companies.

(b) Jana Business Park Pty Ltd ('Jana Business Park') has $3,475,000 in retained earnings but does not have any cash or a bank account. Its assets are in the form of a $3,183,557 inter-company loan to Jana Land.

(c) Auscivil Pty Ltd (trustee of the Castle and Munro Unit Trust) ('Auscivil'): Up until 2023 all operations and staff were run through Auscivil. In 2022, the structure was changed so that Auscivil would be responsible for onsite development and construction and Jana Group taking on project management responsibilities.

1. The Inventory dated 31 May 2023 and filed in support of the Grant of Probate of the deceased's estate included assets as follows:

(a) real estate (being one-fifth share of land in Warragul) valued at $160,000;

(b) 50% shareholding in Jana Land valued at $7,605,421.00;

(c) 100% shareholding of Jana Business Park $5,836,132.00;

(d) loan owing by Jana Business Park of $62,500.00;

(e) monies owing by Castle Family Trust being:

(i) beneficiary loan account of $713,343.00; and

(ii) An unpaid present entitlement of $427,281.00;

(f) three tractors valued at $740,000;

(g) 50% shareholding in Hedera Anna valued at $1 as it is a corporate trustee;

(h) 50% shareholding in Auscivil valued at $1 as it is a corporate trustee;

(i) 1 unit of 100 in the Castle & Munro Unit Trust valued at $1,337.00; and

(j) 100% shareholding in W G Rentals Pty Ltd valued at $120 as it is a corporate trustee.

1. The value of the Deceased's Estate on the Inventory filed in support of the Application for Probate, was $15,546,136.00 with tax liabilities of $23,083.60, being a net estate of $15,523,052.40. Gloria says the vast majority of the estate is not in the form of at-call cash, but is committed to 'the implementation of ongoing land development projects, particularly the Crownlea Project'.
2. By his Will, the deceased appears to have endeavoured to distribute his Aggregate Wealth between his children over time, including by the transfer of effective control of non-fixed trusts. Clause 11 of the will provides:

In relation to any shares that I own in any company acting as Corporate Trustee of any of my Non-Fixed Trusts and in relation to any powers that I hold giving power to exercise Effective Control of any of my Non-Fixed Trusts, such shares and powers are to be held pursuant to the terms of the Administration of Related Entities Schedule.

1. The Administration of Related Entities Schedule provides that the executors are to have effective control of non-fixed trusts, which includes the Castle Family Trust, for five years from the date of the deceased's death, after which effective control will pass to the plaintiff and her siblings, Craig and Patricia.

1. The jurisdiction to order provision in the context of estate litigation and Part IV claims is different from ordinary litigation where discovery may be ordered more readily.[2] It is vitally important that a sense of proportion be maintained in relation to discovery in Part IV applications,[3] failing which such applications will descend into a 'travesty of wasted time, money and other resources,' all of which would be contrary to the administration of justice[4] and the Civil Procedure Act 2010 (Vic).[5] That being the case, orders for discovery are only made in Part IV applications in special circumstances.[6] The fact that the documents sought to be discovered relate to one or more of the matters that the Court must have regard to as enumerated in s 91(4)(e) to (o) of the AP Act is not sufficient to establish special circumstances.[7] Similarly, it is not sufficient that a discovery application is premised on a possible train of inquiry.[8]

1. The plaintiff's written and oral submissions have dealt with various categories of documents as described in the plaintiff's affidavit dated 28 November 2024 and the plaintiff's written submissions filed on 21 February 2025. The numbering and description of the categories referred to in the submissions is different to the numbering and description of the documents as sought in the Summons for Discovery filed on 28 November 2024 and the Notice to Produce. The plaintiff seeks fewer categories by the Notice to Produce. I have found it convenient to deal with the categories of documents by reference to three main issues:

(a) the value of the estate presently and in five years;

(b) the value of benefits provided to the plaintiff under the will; and

(c) the value of benefits provided to the plaintiff prior to the deceased's death.

Issue 1: Discovery regarding the value of the estate**[9]**

1. The documents sought regarding the value of the estate may be broken down into two sub-categories:

(a) documents going to the conduct and value of the business ventures, including loans (discovery categories 1-7, 12-13 and 18-21); and

(b) documents relevant to identification of assets previously and currently held by the deceased or his estate (discovery categories 14-17).

(a) Discovery regarding the value of the estate presently and in five years

1. By her current application for discovery, and by the Notice to Produce, the plaintiff seeks access to extensive financial and business information about the various property developments conducted by the trusts. The plaintiff anchors her request for documents on the content of the plaintiff's affidavits which refer to the particular developments and in some instances, so it is submitted, refer to the particular documents. The documents are sought because the plaintiff lacks information, and has suspicions, about the conduct and value of those developments, and also on the basis that the Part IV application will involve consideration of the financial circumstances of the trusts. The plaintiff expects an issue in the Part IV application to be the value of the plaintiff's entitlements under the Will which depends upon the value of the ventures including matters such as the likelihood that loans are recoverable.
2. Discovery Categories 1-7, 12-13, and 18-21 of the Summons for Discovery[10] are the following:
   1. Documents showing the income received from lot settlements within stage 1 of the Crownlea Project, in February2024.
   2. Income expected to be received from lot settlements within stage 2 in May 2024, stages 3 and 4 in July 2024 and stage 5 of the Crownlea Project in October 2024.[11]
   3. Documents showing the cost to complete the civil works for the remaining stages at the Crownlea Project[12].

4. Documents showing the receipts from the Crownlea Project[13].

1. Documents showing the basis for pages 3 to 7 of the "3-way forecast" for Warragul South Pty Ltd,[14] showing the forecast cash position for Warragul South Pty Ltd at the time and showing the repayment of the expensive non-bank debt as a priority[15].
2. Documents showing the loan arrangements referred to in the Affidavit of Gloria Faye Castle dated 24 April 2024:

The source documents forming the basis of the balance sheet for Warragul South Pty Ltd, which is said to be comprised of the following (approximately):

(a) $920,000 cash at bank;

(b) $3 million in historical retained losses;

(c) $2 million in trade creditors;

(d) $4 million in intercompany debts receivable from other Castle Group companies;

(e) $17 million in intercompany debts owed to other Castle Group companies; and

(f) $15 million index in debts to banks and external investors[16]

The source documents confirming the existing debts owed by Warragul South Pty Ltd to external investors and lenders[17];

The source documents confirming intercompany loans to and from other family companies and is being used to assist with the funding of land development projects. For example, the following Jana Land Pty Ltd loans are:

(a) $688,752 to Hedera Anna Nominees Pty Ltd as Trustee for Castle Family Trust;

(b) $2,127,571 to Auscivil Pty Ltd as Trustee for Castle & Munro Unit Trust;

(c) $47,384 to Brooks Hill Developments Pty Ltd;

(d) $9,808,249 to Warragul South Pty Ltd;

(e) $4,777,004 to JG Castle Loans Pty Ltd;

(f) $6,039 to Bairnsdale Mill Pty Ltd as trustee for Bairnsdale Mill Street Unit Trust;

(g) $740 to WGL Rentals Pty Ltd As Trustee for TAL Family Property Trust; and

(h) Jana Business Park Pty Ltd has loaned $3,183,557 to Jana Land Pty Ltd.[18]

1. Documents confirming that the assets of Jana Business Park Pty Ltd are in the form of the $3,183,557 inter-company loan provided to Jana Land Pty Ltd.[19]

...

1. Documents which verify the various costs and debts claimed as being the costs of the "Crownlea" development carried out by Warragul South.[20]

13. The Contracts:

1. for the construction stages 1-6 at 41 Butlers Track;

2. for the construction of the Butlers Track (Claremont Rd to Warragul-Lardner Rd) upgrade;

3. for the construction of the roundabout at Butlers Track, Landsborough Street and King Street Warragul;

4. for the development Contributions Levy/credit statements agreed with Council for stages 1-6;

   1. for the construction of the outfall Sewer (Wills Street to Landsborough Street, Warragul) between Auscivil, Warragul South, Gippsland Water and/or any other party, partial reimbursement of sewer main by Gippsland Water and cost share arrangement with Freeway Business Park Pty Ltd[21].

...

1. Copies of loan documentation verifying all loans owing to third party creditors by any of the Castle Family entities (including companies, syndicates and Trusts, Unit and Discretionary) (either partly or wholly owned).
2. Copies of all documents setting out any Castle Family entity (including companies, syndicates and Trusts, Unit and Discretionary) (either partly or wholly owned) inter-entity and third party loans and borrowing arrangements.
3. Copies of documents which will confirm that the Castle Family entities (including companies, syndicates and Trusts, Unit and Discretionary) (either partly or wholly owned) alleged loans, match the loan agreements.
4. Copies of all loan documentation to verify all loans owing to third party creditors by any of the Castle Family entities (including companies, syndicates and Trusts, Unit and Discretionary) (either partly or wholly owned).

1. The plaintiff submits that documents in paragraphs 1-7 and 12-13 of the Summons are sought having regard to matters raised by Gloria in her affidavit sworn on 24 April 2024 at paragraphs [14] to [22] where she discusses the Crownlea Project. Gloria describes the current state of the development and states that as at January 2024 the balance sheet of Warragul South comprises of: $920,000 cash; $3 million in historical retained losses; $2 million in trade creditors; $4 million in intercompany debts receivable from other Castle Group companies; $17 million in intercompany debts owed to other Castle Group companies; and $15 million in debts to banks and external investors. Gloria attaches a balance sheet and a 'Three way forecast for Warragul South' as at March 2024 (actuals to 31 January 2024).
2. The plaintiff seeks production of these documents, as well as loan documents described in categories 18 to 21, to interrogate the viability of the business venture and determine the true value of the estate, and what it will look like 'at the end of five years when the plaintiff takes control'. At the hearing, Counsel submitted that the plaintiff presently has 'no transparency about the way in which the Castle Family Trust is being managed and what its likely state of being is going to be in five years come up'. The plaintiff also submitted that in all likelihood at the hearing of the Part IV application, the defendants will say that the value of the estate, and of any entitlement the plaintiff may receive by operation of the Will, should be determined based on the figures produced, but the plaintiff submits that she should not be asked to accept without question what is stated in the accounts and forecast currently produced. The plaintiff submitted that the defendants, as executors, appear from their evidence to be supervising and monitoring the investments, and therefore it may be inferred they have documentary support for the figures asserted. The plaintiff states that she worked with her father 'in carrying out the development of various properties and would be familiar with the types of documents likely to be available' and that the documents sought 'would have been created in the course of analysing the finances of the business' developments. The plaintiff submitted that ultimately expert evidence may be required to address the issue of value based on discovered documents.
3. The defendants submit that this is not the appropriate proceeding in which the plaintiff should be seeking discovery of those documents. The defendants contend that the plaintiff's request for documents to 'verify' what the defendants say is the value of the estate, is 'clearly a "fishing" expedition' and that there is no basis for an order of discovery 'for a wide-ranging suite of documents where the plaintiff has not raised any issue of questionable transactions'.
4. For the following reasons I consider that discovery should not be ordered of these categories.
5. First, the extent of the discovery would be excessive and likely add significantly in terms of cost and delay. Much of the proposed discovery is based on the desire to verify or discredit the figures relied on as they appear in the accounts, but there are limits on when that may be done, and the current proposed discovery is not far short of a call for every primary document relating to a large property development of more than 1,200 homes that is forecast to take more than a decade to complete. The requirement for special circumstances is directed towards avoiding such an extensive discovery exercise unless there are special circumstances justifying it. There is also the very real prospect that if discovery were ordered, further issues could arise as a part of that process.
6. Previously decided cases on such questions are a guide as to when such discovery may be ordered. In Waters v Belza & Anor[22], the applicant for provision under Part IV of the AP Act sought discovery in relation to the composition, location and value of the assets and income of the deceased's residuary estate on the basis that she was entitled to know the value of the assets of the estate. At first instance, Irving AsJ, rejected the application, observing that 'the procedural history of the proceeding shows the parties have been bogged down in time consuming disputes about the provision of documents. The need to avoid these types of disputes is precisely why discover is rarely ordered in testator family maintenance matters.'[23] Watson J rejected an appeal from that decision holding that 'there is no reason to go behind the inventory of assets and financial accounts already provided...for the purposes of determining the size and nature of the estate. If assets are held by the Trust they do not form part of the estate and will have no impact on the value...'[24] and further 'there is no reason to assume that the Executor will not diligently provide an updated inventory of assets prior to mediation and prior to trial'[25].
7. In the Grege v Grege & Ors (Ruling)[26], the defendant in a Part IV application sought discovery in relation to the plaintiff's entitlements under a sub-lease. Gobbo AsJ ordered discovery on the basis that the documents were relevant and the defendant had demonstrated special circumstances. But importantly, the categories of documents sought were limited, and were 'unlikely to lead to a broadening of the disputes between the parties' or the 'lengthening of a trial.'[27] In this case, discovery sought by the plaintiff would likely add significant time and cost.
8. There is some force to the plaintiff's general position that the valuation of the estate is not straightforward and a degree of scrutiny is required. Notwithstanding the importance of appropriate valuation evidence, I do not consider that the most effective or appropriate method of scrutiny in this case is by the process of discovery. Rather, I consider the appropriate course to be the appointment of an independent expert to value the estate.
9. Secondly, I agree with the defendants that the request for documents appears to be akin to a 'fishing expedition' having regard to the plaintiff's own evidence that she believes that the documents exists based on her experience and knowledge of other developments she was involved in with her father. Almost all of the discovery sought is based on suspicions or a lack of direct knowledge, and in that sense, documents are sought in order to verify, or discredit, information that has been provided. That is not an appropriate basis for discovery, particularly discovery of such breadth as is sought here. The observations of Lord Greene MR in Re Borthwick,[28] are apposite:

The plaintiffs, however, have not put forward a single shred of fact or a single suggestion casting doubt on the fairness or accuracy of the executors' evidence on the subject of value. Indeed their complaint is this: 'We cannot do that without some materials and the reason why we want discovery is to enable us to test what the executors have said and to see whether or not we can find something on which to attack their estimate'. In ordinary litigation, of course, the ordinary rules of discovery enable litigants to conduct such an examination, but this is a very special jurisdiction under a very special Act governed by very special rules. The judge has ample power, if he is not satisfied or if he thinks there is a reasonable ground for doubting the accuracy of such an estimate as this, to require further evidence on the point, to summon the executors before him, to put questions to them and to subject them to cross-examination. If he thought that was the proper course and if the matter was a matter of doubt or if suspicion was aroused, that no doubt would be the course that he would take. But here we have what on the face of it is sworn testimony by reputable people, the accuracy of which has been subjected to the not too easy test of an investigation by a government department. Everybody who has a little experience of these matters knows that the valuation of shares in private companies is often an extremely difficult matter, and also, I think, everybody knows that where such shares come up for valuation for death duty purposes they are a subject-matter on which the death duty officials are particularly vigilant and particularly inquisitive. A judge who is asked to exercise his discretion in a case of that kind has to weigh in his mind these considerations. Here are plaintiffs who cannot suggest any doubt about this prima facie reliable method of arriving at the valuation, who merely ask for the instrument of discovery to be put into their hands to enable them to see if they can find something on which to attack it. If ever there was a case where a judge should decline to exercise a discretionary jurisdiction to grant an order for discovery, I think this is such a case. If any reasonable suggestion of doubt could be raised, I have no doubt the judge in his discretion under the power given to him by these specific rules would require further information. [29]

1. While these comments support the defendants' opposition to discovery, they also acknowledge both that valuation of private companies is difficult and that the Court must bear in mind the importance of reliable valuation evidence. The latter considerations provide a justification for the appointment of an independent valuer.
2. Thirdly, the plaintiff has brought a separate claim seeking production of trust accounts as a beneficiary of the relevant trusts which I consider is the appropriate vehicle for the plaintiff to seek to obtain the documents sought.
3. In support of her application for discovery in this Part IV application the plaintiff relies on 'the right of trust beneficiaries to obtain documents,' referring to the decision in Smorgon v ES Group Operations Pty Ltd[30]. But a beneficiary's right to obtain trust documents is not the same as, nor does it necessarily support, an application for discovery in a Part IV application. The principles applicable to a beneficiary's right to trust documents are informed by the relationship between trustee and beneficiary and are based on the Court's inherent jurisdiction to 'supervise, and if necessary, intervene in the administration of trusts,'[31] whereas the principles governing discovery are informed by forensic and procedural considerations in the context of the particular inter-party dispute. The latter include considerations discussed above.[32]
4. I do not consider that a beneficiary's right to access and inspect trust documents itself constitutes 'special circumstances' for the purposes of discovery in a Part IV application. The scope of the relief in the former type of claim is likely to far exceed the scope of any appropriate orders for discovery in a Part IV application. While it remains important that the Courts and parties avoid a multiplicity of proceedings where appropriate, for the above reasons, if a claim for access to trust documents is to be made on the basis of a beneficiary's right to trust documents, that should be pursued in the separate application that has been issued.

(b) Discovery regarding the value of the deceased's wealth prior to his death

1. Discovery Categories 14, 15, 16 and 17 of the Summons for Discovery are the following:
   1. Historical documents in relation to entities in which John David Castle had an interest.
   2. Information about all Companies, syndicates and Trusts (Unit and Discretionary), that are or were owned, partly or wholly, by John David Castle or that he had an interest in, for the last 7 years.
   3. Any documents confirming what entities (including companies, syndicates and Trusts, Unit and Discretionary) in which the Estate of Late John David Castle has an interest.
   4. Any information about any entity (including companies, syndicates and trusts, unit and discretionary) in which John David Castle had an interest but which he no longer held at time of death[33].
2. The plaintiff submits that these documents are sought for the following reasons:

The inventory of his assets, effectively, set out very little of what you might call personal assets. It was largely contained in his shareholdings in the entities that I've spoken about.

So there's no substantial bank accounts to speak of and no substantial personal assets to speak of. It would be surprising for a man who while he was alive had control of a substantial group of companies who were carrying out substantial developments, generating substantial income and so on. So we want to see whether there ought to be more in the inventory.

If he had interest in any other assets and disposed of them within the last seven years, where are the sale proceeds? Has there been a pattern in the past in terms of his interest in either companies or trusts? Has there been patterns in the past of there being distributions or dividends being paid to him, and if so, where are they?

So I concede that I can't point to a particular smoking gun, so to speak. I can't pull on a particular thread to say here is a piece of evidence that five years ago he owned such and such. Where is it now? It is drawn from the overview of his position, that he was clearly in control of a range of entities, that those entities were generating income, selling land, and yet he has really negligible personal assets.

So that is something that we find surprising and that does lead - in the context of this estate, it does lead to a train of inquiry about what he previously had or may have had and what the pattern of payments were to him or the pattern of disposals and where those money [sic] has gone.

1. It is apparent from these submissions that discovery is sought largely based on suspicion, that is, the plaintiff seeks the documents to investigate what has become of what she presumes to have been the deceased's wealth. But as noted above, it is not sufficient that a discovery application is premised on a possible train of inquiry.[34] I am not satisfied that special circumstances have been established for discovery of these categories.

Issue 2: Discovery regarding the value of benefit provided to the plaintiff under the Will

1. A number of categories of documents relevant to the value of the estate are also relevant to the value of the benefit provided to the plaintiff under the terms of the Will[35]. In addition to those documents, the plaintiff submits that category 11 documents are relevant to the value of the benefit provided to the plaintiff under the Will. That category is:

Documents confirming any Meeting Minutes which ratified the "Castle Family Rules" and copies of all Minutes of Meetings following the ratification of the "Castle Family Rules."

1. This request arises out of paragraph 67 of Gloria's April 2024 affidavit in which she says:

The Castle Family Rules is a document which delegates a limited amount of authority to Craig and Trish for the purposes of running the family business and dealing with Castle Group assets. Melissa is not a party to this agreement because she is not involved in the operation of the family business, but she does have a right to be invited to a meeting every six months.

1. A copy of what purports to be the Castle Family Rules are exhibited to the affidavit. They appear to have been signed by Gloria, Craig and Patricia.
2. The plaintiff submits that in order to assess the benefit that the plaintiff is entitled to under her provision application, it is necessary to look at the terms of the Castle Family Trust. The plaintiff submits that the rules are relevant to that enquiry because it goes to determining what distributions have been made, what investment decisions have been made, whether the assets are being reinvested for growth, and so on. The plaintiff also submits that the documents would be 'relevant to an assessment of what her control or partial control, her minority interest as a controller, looks like in five years' time.'
3. The defendants submit that the plaintiff's request for the minutes of meeting in relation to the Castle Family Rules, is 'overreaching in terms of being in the context of a TFM claim' and what the plaintiff is really seeking to do is obtain documents which are 'in relation to...a trust which is entirely outside of the estate'. The defendants take issue with the plaintiff's request for documents from non-estate entities, including the Castle Family Trust, who they say is a not a party to this proceeding.
4. The defendants also submit that it is not in dispute that the plaintiff has rights as an object of the discretionary trust and it is a matter for her to make a 'separate application in relation to the trust to determine whether the trustees are acting appropriately' if she wishes to. The defendants' also submit that the exact value of the plaintiff's potential benefit under the Will 'does not need to be provided to the Court in order for a determination to be made in the TFM proceeding, particularly as all beneficiaries are discretionary objects'.
5. I do not consider there are special circumstances justifying discovery of these documents. The documents sought relate to the general governance and conduct of various entities in what is described as the Castle group. Presumably the conduct of the business of the trusts is undertaken in accordance with the terms of the trust and the obligations on the trustees. If it is being conducted otherwise, then action may lie against the trustee and those controlling it. But it does not seem to be suggested that there has been any improper conduct. That leaves the plaintiff's request as a general request for documents evidencing decisions made by the trustees in the exercise of their obligations as trustees. It is not appropriate to order discovery in those circumstances of those documents having regard to the principles discussed above. In particular, I consider it would be out of proportion, and in a sense, premised on a possible train of inquiry.[36] In my view, the plaintiff's application for trust documents in the Trust Proceeding is the appropriate vehicle for the question of access to such documents to be pursued. In that regard I note that generally, a beneficiary's entitlement to trust documents does not extend to documents evidencing the reason for certain decisions.[37]

Issue 3: Discovery regarding the value of benefits provided to plaintiff during the deceased's life

1. Discovery Categories 8, 9 and 10 are the following:
   1. Documents which show the basis for the distributions made to Melissa Castle in the order of $1.9m.
   2. Documents which set out the basis for Melissa Castle's employment entitlements.
   3. Documents which form the basis of the calculations set out in the spread sheet at pages 17 to 21 of Exhibit "GC-1" of the Affidavit of Gloria Castle dated 24 April 2024, being:

(a) the calculation of $221,084 dated 30 June 2008; and

(b) the calculation of $44,555 dated 9 June 2005;

(c) the "Market value salary for role vs what has actually been paid $391,759", undated.[38]

1. The plaintiff bases her request for discovery of these categories on paragraphs 54, 55 and 74 of Gloria's affidavit sworn on 24 April 2024. In those paragraphs Gloria identifies various payments as having been made to or for the plaintiff's benefit[39]. Any such payments or benefits are matters that the court may have regard to under s 91A(2)(h) of the AP Act in determining appropriate provision.
2. Gloria exhibits a spreadsheet that she says sets out the benefit provided to the plaintiff totalling $1.9 million. The items in the schedule include 'loans' of $3,000 per month between about 2012 and 2024; an amount of $221,084 on 30 June 2008 described as 'End of yr jnl'; an amount of $44,555 on 9 June 2005 with no description. Category 10(c) arises from Gloria's statement that in relation to the plaintiff's salary, 'I have made an allowance in the spread sheet for the additional sum paid to Melissa over and above market rates for the work she performed for the business.' The allowance is in the amount $391,759.
3. The plaintiff challenges the veracity of the spreadsheet on the basis that it is not clear how it came to be produced or what it is based on. There is some force to that criticism. No doubt the spreadsheet was not produced from memory, which means it must have been produced from other sources, but it is unclear what those other sources are, or how they were generated. In addition to a general attack, the plaintiff raises specific issues about, and seeks discovery in relation to, several large payments.

1. The plaintiff challenges the item in the schedule of $221,084 dated 30 June 2008 which is described as 'End of yr jnl'. The plaintiff submits that this looks like it has been transcribed from another set of journals but accepts that is just speculation because she does not know.
2. The evidence around this amount is unclear. If the defendants wish to rely on benefits provided to the plaintiff for the purposes of s 91A(2)(h) of the AP Act, then the defendants bear the burden of establishing those benefits were provided. As with other items, the question of discovery in relation to this entry needs to be considered having regard to the nature of the issue in relation to which discovery is sought. In this instance, the issue is insufficiently articulated. Gloria asserts that this was a benefit, but the details of what that benefit is has not been explained. It may be no more than book entries for tax purposes, which may have been dealt with elsewhere or subsequently.
3. The most appropriate way for this to be dealt with is likely to be by an expert who may express opinions as to what benefits if any flow from book entries within the group.

1. The plaintiff seeks discovery in relation to the $44,555 entry on 9 June 2005. The plaintiff raised the issue with the defendants who provided some documentation including an unsigned invoice dated 9 June 2005 purportedly supporting this entry. That invoice is headed 'Hedera Anna Nominees Pty Ltd' under which appears the addresses 'accounts@janagroup.com.au' and 'www.janagroup.com.au.' The amount is recorded as being payable to the Australian Taxation Office. The payment method is recorded as cheque and the account/item is described as '514.03 Melissa F Castle: Drawings Melissa Castle.'
2. The plaintiff questions the legitimacy of this invoice on the basis that she was not living in Australia between November 2003 to July 2004 and then from July 2004 to June 2005, so there is no apparent reason why she would be liable for tax. The plaintiff also says that the appearance of the addresses for Jana group is suspicious because the name 'Jana' was created from the first four initials of the deceased's grandchildren, the last of whom, Asha, was born in 2007. The plaintiff submits that as Jana did not exist in 2005, the invoice must have been created sometime well after that date, and that from various ASIC searches she conducted the name Jana didn't come about until 2011 and Jana group until 2023, and she knows nothing about the invoice. The defendants say the invoice was produced more recently than 2005 but has been backdated on a current form that 'automatically applies the email to the receipt (sic) when it was printed off.'
3. To the extent there is an issue concerning this invoice, it would be appropriate for an expert to express an opinion, if able, as to whether the plaintiff received a benefit in this amount.

1. In relation to the payments of $3,000 per month, totalling $200,000 alleged to have been made, the plaintiff seeks discovery of any loan documents, and questions whether this amount will have to be repaid and if so on what terms.
2. The defendants oppose discovery and observe that the plaintiff has not denied receiving these funds and has sworn that she has been receiving payments from Hedera Anna in the sum of $3,000 per month.
3. The evidence in relation to the $3,000 payments is less than satisfactory. In her affidavit, Gloria says the $3,000 payments arose out of a failed property development venture undertaken by the plaintiff in Newport in circumstances where the plaintiff blamed the deceased for the failure. Gloria says the deceased 'told [her] he agreed to compensate [the plaintiff] for the development losses by paying her $3,000 a month up to $200,000 in total.' Notwithstanding that evidence, in the schedule Gloria has described the payments as 'loans.' There is no explanation as to why they are so described, nor is there any explanation as to the terms of the loans or concession that they are to be forgiven. It seems obvious that any assessment of a 'benefit' that accrues to the plaintiff by the provision of loan moneys must necessarily take into account the terms of the loan. Depending on repayment terms, the loans may be a detriment. Further, if the payments are properly characterised as 'compensation' then it may be no benefit has accrued to the plaintiff at all.
4. The defendants bear the burden of proving any benefit upon which they seek to rely. The primary evidence in relation to the characterisation of the $3,000 payments is that in paragraph 55 of Gloria's affidavit where she describes them as 'compensation.' If the payments are 'compensation' then they are presumably payments for losses suffered, which have not be quantified. That being the case, it is unclear what, if any, benefit the plaintiff may have received. If the defendants wish to establish that moneys were provided by way of loan, they will have to do more than include the descriptive term 'loan' in a schedule that has been created by unknown processes and means.
5. Ultimately I do not consider that special circumstances have been established for discovery in relation to any loan documents because if the payments were loans, it is not apparent what if any benefit has been received. Without any articulated benefit, any 'loan' falls outside the terms of s 91A(2)(h) of the AP Act. Beyond that, the question of payments made and the basis for them is a matter that the plaintiff is able to give evidence about in any case. The plaintiff can deny funds were provided, or admit that she received payments but say that they were not loans, or can say that the payments were made as loans but are repayable, or can say payments were made as compensation for some loss, or something else. Again, this may be a matter for the expert to express an opinion on.

1. The schedule exhibited to Gloria's affidavit includes an item of benefit said to have been provided to the plaintiff of $391,759 which is described as 'Market value salary for role vs what has actually been paid.' The plaintiff submits that there is no detail as to how this figure was arrived at and says that discovery should be provided of any documents that verify the assertion.
2. In the affidavit of Robert Norton sworn 31 January 2025, he deposes that the defendants provided calculations of the sum paid to Melissa in excess of the market rate for her position which included hours worked. The defendants submit that it is their choice whether they seek to rely on that as evidence, and that it is not an 'appropriate matter for the discovery application ... particularly looking at the restrictions that are generally imposed on discovery in TFM applications'.
3. A significant difficulty with this item in the schedule is that it is predicated on an opinion as to market value of salary for particular services without any apparent basis for the opinion. In that sense it is inadmissible.[40] Insofar as it has been admitted, it is of questionable weight. The defendants bear the burden of establishing such benefits as they wish to rely on for the purposes of the Part IV application. Having regard to the state of the evidence as to the suggested benefit, I do not consider that special circumstances have been established for discovery in relation to that item. There is insufficient evidence of any benefit to establish it will be a significant issue in the application. Any discovery is likely to be time-consuming and wasteful. If the defendants wish to press their argument as to the value of salary received, they will need to adduce sufficient evidence to persuade the Court.
4. For those reasons the Summons for Discovery will be dismissed.

1. Notwithstanding the above reasons to preclude discovery, the value of the estate, and the value of benefits provided to the applicant for provision, are matters of importance in any application for provision,[41] and it is important that the Court have an up to date valuation at the time of the hearing.[42]
2. A legal personal representative's obligation to put evidence of the value of the estate before the Court is an ongoing obligation[43]. The nature of that obligation, and the power of the Court to inquire, was discussed by Englefield JR in Re Fitzgerald; Voss-Lassetter v Piacun[44] as follows:

[25] This is not as to say discovery on financial matters will not be ordered where appropriate. For example, discovery may be ordered in respect to issues relating to valuation of assets held in an estate. At times, this extends to financial documents relating to businesses, including farms, whether underlying assets are held by the estate directly or via shares in a private company or units in a unit trust. Although there is a limit to such discovery where the expense and delay is disproportionate to the utility of the materials sought to be discovered.

[26] It may be noted that unlike other civil litigation, at the hearing of a TFM claim the Court has an independent power to 'inquire fully' into the estate of the deceased and for that purpose may:

(a) summon and examine such witnesses as may be necessary; and

(b) require the Legal Personal Representative ('LPR') to furnish full particulars of the estate.

[27] This is not an independent investigation of transactions made during the lifetime of a deceased person to ascertain if any might be voidable, but a power to order proper and full disclosure of the size of the net estate at the time of the trial, including reliable valuations of real property, shares in private companies or uncommon assets and details of alleged liabilities (including, if necessary, legal costs incurred). This ensures the Court has all relevant evidence regarding the size of the estate (including its liabilities) as required by Pt IV of the Act. This power of the Court is in addition to the duty of the executor and counsel representing the estate at trial to fully and properly present evidence of the value of the estate. [45]

1. If adequate valuation evidence is to be adduced, then it is apparent that such evidence should be evidence from a properly briefed independent expert. That will require sufficient material to be provided to the expert to perform that task. To the extent issues arise as to the questions the valuer is to be asked, and the material with which the valuer is to be briefed, it is expected the parties would approach these tasks consistently with their obligations under the Civil Procedure Act 2001 (Cth).
2. The parties are directed to consider and confer in relation to:

(a) who should be appointed expert for the purposes of valuing the estate;

(b) the questions to be put to the expert; and

(c) material to be provided to the expert.

1. The categories of documents sought in the Notice to Produce are substantially replicated in the schedule for discovery. Accordingly the same general considerations as discussed above in relation to the application for discovery apply to the Notice to Produce.
2. Further, the plaintiff's reliance on a Notice to Produce is contrary to the general principle that a Notice to Produce ought not be used as a substitute for discovery.[46] In this case, having regard to the breadth of the categories of documents sought and the fact that it substantially mirrors the discovery summons, I am satisfied that it is being used as an impermissible substitute for discovery.
3. That being the case, the Notice to Produce will be set aside.
4. If the parties cannot agree on appropriate orders, including as to costs, I will hear them further.

[1] I will refer to the parties by their first names for convenience.

[2] Harris v Bennett [2004] VSC 171; (2004) 8 VR 425, [11] (Redlich J) ('Harris'); In Re Borthwick; Borthwick v Beaumaris (1948) 1 Ch 645, 648, 650 (Lord Greene M.R.) ('Re Borthwick').

[3] Blair v Blair [2002] VSC 131, [3] (Harper J).

[4] Ibid; Reed v Reed & Anor [2001] VSC 54, [23] (Beach J) ('Reed').

[5] Civil Procedure Act 2010 (Cth) ss 7 and 9 describes the overarching purpose as the just, efficient, timely and cost-effective resolution of the real issues in dispute.

[6] IMO the Will and Estate of Vassilios Zurcas, deceased [2012] VSC 441 ('Estate of Zurcas') (Zammit AsJ as her Honour then was); Reed [21]; See also Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 29.01, 29.07(2).

[7] Harris [14]-[15], [37]-[38]; Grege v Grege & Ors (Ruling) [2024] VSC 475, [47] (Gobbo AsJ)('Grege').

[8] Estate of Zurcas [44]; Dinakis & Zurcas v Zurcas & Ors [2013] VSC 79, [40] (Digby J) ('Dinakis').

[9] Summons for Discovery Categories 1-7, 12-13 and 18-21; Notice to Produce, paras 1-5; Plaintiff's Submissions filed on 21 February 2025, [18] sub-paras, (1)-(5), (9), (13) ('Plaintiff's February Submissions').

[10] Plaintiff's February Submissions, [18] sub-paras, (1)-(5), (9), (13); Notice to Produce, paras 1-5.

[11] Categories 1 and 2 of the Summons for Discovery were amalgamated as a single category 1 in the Plaintiff's February Submissions, [18]; Affidavit of Gloria Castle sworn on 24 April 2024, [15].

[12] Affidavit of Gloria Castle sworn on 24 April 2024, [18].

[15] Plaintiff's February Submissions, [18] sub-para 4.

[20] This category is expanded in category 9 in the Plaintiff's February Submissions; Affidavit of Gloria Castle sworn on 24 April 2024, [18]-[22].

[21] This category is expanded in category 9 in the Plaintiff's February Submissions.

[22] [2024] VSC 157 (Watson J) ('Waters').

[28] Re Borthwick applied in Dinakis [11]-[12].

[29] Ibid, 650-651 cited in Dinakis [11].

[30] (2021) 64 VR 146, [90], [120], [136]-[137].

[31] Land v Prideland [2024] VSC 557, [22] (Barrett AsJ) ('Prideland').

[32] See paragraph 16 16above.

[33] Plaintiff's February Submissions, [18] sub-paras (10)-(12).

[34] Estate of Zurcas [44]; Dinakis[40].

[35] Summons for Discovery Category 11; Notice to Produce, para 8, Plaintiff's February Submissions, [18] sub-para 8.

[36] Estate of Zurcas [44]; Dinakis [40].

[37] Prideland [22] citing Deutsch v Trumble [2016] VSC 263; (2016) 52 VR 108, 122 [52] (Hargrave J).

[38] Plaintiff's February Submissions, [18] sub-paras (6)-(7).

[39] Summons for Discovery Categories 8, 9 and 10; Notice to Produce, paras 6-7.

[40] Evidence Act 2008 (Vic), see ss 76, 79.

[41] Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 136-138 ('Blore'); John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Australia, 6_th_ ed, 2021) [6.11], 364-5.

[43] Administration and Probate Act 1958 (Vic), ss 28, 94(a)-(b) ('AP Act'); Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490, 508-9 (Murphy J); Blore (n 41) 138; Re Thompson; Thompson v Chen & Anor [2022] VSC 400, [39] (esp at fn 68), [64].

[44] [2020] VSC 784 ('Re Fitzgerald'); AP Act ss 94(a)-(b).

[45] Re Fitzgerald [25]-[27] (citations omitted); see also Re Borthwick; Dinakis at [11]-[12].

[46] 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [37] (Derham AsJ).