Plaintiffs/Defendants by counterclaim v Defendant/Plaintiff by counterclaim

3 Sam and Renia each made Wills dated 25 February 2014. Relevantly, upon the deaths of both Sam and Renia:

(a) Helen, Susan and Sandra were appointed executors and are required to act unanimously in the administration of the Estate; and

(b) the Estate is to be divided into three equal shares between them.

4 The Wills were supplemented by codicils dated 21 December 2016 and 26 June 2019.

5 Sam and Renia also signed a joint Letter of Wishes dated 21 August 2021.

6 Sam died on 26 February 2022, and Renia on 25 May 2022. Probate of Renia's testamentary documents was granted to Susan and Sandra on 23 August 2022, and to Helen on 13 February 2023.

7 There are presently three relevant proceedings before the Court (together, the 'Proceedings'):

(a) S ECI 2023 03785 - commenced by Helen on 22 August 2023 against Susan and Sandra as executors of the Estate, seeking relief under order 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic);

(b) S ECI 2023 05508 - commenced by Helen on 23 November 2023 against Susan and Sandra as executors of the Estate and various companies in the Kurtz Group, making allegations of oppressive conduct under s 232 of the Corporations Act 2001 (Cth); and

(c) S ECI 2024 06107 - was commenced on 13 November 2024, seeking judicial advice as to whether, and to what extent, the wishes expressed in the Letter of Wishes should be followed in the administration of the Estate, and in which Helen counterclaims with respect to the validity of the Letter of Wishes and the efficacy of resolutions purporting to give effect to it ('Judicial Advice Proceeding').

8 Susan and Sandra are the twenty-third and twenty-fourth plaintiffs in the Judicial Advice Proceeding. The first to twenty-second plaintiffs are trustees of trusts of which Helen, Susan and Sandra are within the class of beneficiaries. Following the deaths of Sam and Renia, Susan, Sandra and Helen are the only directors of the first to twenty-second plaintiffs. The plaintiffs and defendants by counterclaim in the Judicial Advice Proceeding are described as the Harrison/Lawrence Parties.

(a) executors of the Estates that are the subject of the Proceedings;

(b) beneficiaries of those Estates;

(c) directors of companies that are trustees, each of which is a party to at least one of the Proceedings (i.e. is a Harrison/Lawrence party);

(d) beneficiaries of those trusts;

(e) directors of non-trustee investment companies, each of which is a party to at least one of the Proceedings (i.e. is a Harrison/Lawrence party); and

(f) entitled to become shareholders of the abovementioned companies upon Susan and Sandra taking certain steps.

10 It is uncontroversial that parts of the Letter of Wishes depart from the terms of Sam and Renia's testamentary documents.

11 Both Sam and Renia's Wills provide that their residual Estates are to be divided into three equal shares, with a share to be held on trust for each of Helen, Susan and Sandra. Clause 8 of their Wills expressed the wish that the trustees of any trusts in which they had an interest or which they were capable of controlling would exercise their powers to distribute their income and assets in the same manner as the residuary gifts.

12 In contrast, the Letter of Wishes appears to record both Sam and Renia's wishes that the income and assets of the Charman Trust and the Highglen Trust (excluding any shares in listed companies) be paid or applied to or for the benefit of, respectively, Susan and Sandra. Samran Pty Ltd (the seventh plaintiff/defendant by counterclaim) and Penhill Pty Ltd (the eighth plaintiff/defendant by counterclaim) are the trustees of the Charman Trust and the Highglen Trust respectively.

13 Further, the Letter of Wishes contains what Helen submits is an 'in terrorem ' clause in the following terms:

If Helen or any of her lineal descendants or any member of her family (including without limitation her spouse, her children's spouses, her grandchildren's spouses or their legal personal representatives) brings any action, claim or proceeding against any entities within the Kurtz Group or against any Kurtz Group employees, contractors, staff or Susan or Sandra (or their associated entities) or any member of Susan's or Sandra's family, spouses, children's spouses, grandchildren's spouses and their legal personal representatives in connection with their role in the business of the Kurtz Group, their entitlements under this Letter of Wishes or against any entity in the Kurtz Group, it is Sam and Renia's express wish and desire that any costs incurred in defending and settling such action, claim or proceeding and any claim, costs or judgment awarded will be borne by Helen and to the extent that they are not borne by Helen will be deducted from Helen's entitlements under paragraphs 5(c)(i), 7(I)(i) or any other of Helen's entitlements under this Letter of Wishes.

14 Clause 21 of the Letter of Wishes provides as follows:

This letter merely reflects the wishes of Sam and Renia. It does not seek to impose any legal or binding obligations upon the Trustees except insofar as it is within the discretion of the Trustees to comply with such wishes and insofar as the Trustees are prepared to do so.

15 It has been suggested that there are, generally, three types of letters: a legally binding letter; a legally significant letter; and, a letter which is only morally binding.[1] Argument on this application did not focus on whether the Letter of Wishes ought to be characterised as legally significant or only morally binding and if so, what if any, consequences flow from that. Noting the text of clause 21, it suffices to observe that the Letter of Wishes is not a 'legally binding' document.

16 Samran and Penhill have each relied on the Letter of Wishes to resolve to distribute a property to Susan and Sandra respectively. Helen is challenging those resolutions and they have not been acted upon pending the Judicial Advice sought by the Harrison/Lawrence Parties.

17 Martincroft Pty Ltd (in its capacity as trustee of the Martincroft Trust and other trusts) ('Martincroft') is the tenth plaintiff in the Judicial Advice Proceeding. As at 1 December 2025, the total amount paid to ABL in respect of the Proceedings and 'related matters' is $1,687,644.22 of which $1,413,647.90 was paid from the Martincroft Trust to ABL and $273,996.32 was initially paid using Estate funds and the Martincroft Trust reimbursed the Estate. Sandra and Susan, as directors of Martincroft, have caused those distributions to be made. Helen, Sandra and Susan are each beneficiaries of the Martincroft Trust. Susan has deposed in the Judicial Advice Proceeding that by correspondence dated 18 March 2024, Helen's solicitors have alleged that this was a misuse of funds. Susan has deposed that '[a]ccordingly, we seek the Court's advice as to how the costs of the litigation ought to be paid, allocated or reimbursed'.

18 Susan has deposed to the fact that she and Sandra consider there is a rational basis for the trustees to exercise their discretion to implement Sam and Renia's wishes as to the distribution of trust property as expressed in the Letter of Wishes. Susan further deposes that Helen does not agree to the implementation of the Letter of Wishes and contends the assets should be distributed in accordance with the wish in Sam and Renia's Wills that the income and capital of the trusts be distributed evenly as between testamentary trusts in the name of each of the three daughters. The Harrison/Lawrence Parties have therefore sought judicial advice as to whether the plaintiffs are justified in implementing certain clauses of the Letter of Wishes.[2]

19 I was informed that the Proceedings are being conducted together under one set of pleadings within the Judicial Advice Proceeding. On 5 December 2025, Justice Waller made orders for the further conduct of the Proceedings including the provision of witness outlines. In 'Other Matters', the Court noted that it 'anticipates that the proceeding will be set down for trial at the directions hearing fixed for 15 May 2026'.

20 Arnold Bloch Leibler ('ABL') act for the Harrison/Lawrence Parties in the Proceedings.

21 Before their deaths, ABL advised Sam and Renia in relation to their estate planning. ABL also acted for the companies in the Kurtz Group and has continued to do so following the deaths of Sam and Renia. The solicitor with carriage of those files was Mr Joey Borensztajn AM, a partner in ABL's corporate, M&A and taxation practices. Mr Borensztajn was the longstanding solicitor of Sam and Renia Kurtz during their lifetimes and also provided commercial advice to the Kurtz Group. Following the passing of Sam and Renia, Mr Borensztajn has provided commercial advice to the Kurtz Group and to Susan and Sandra (as directors of the Kurtz Group).

22 By summons filed 10 November 2025, Helen seeks an order restraining ABL from continuing to act in the Proceedings. Helen submits that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that ABL should cease to act because:

(a) Mr Borensztajn is likely to be a material witness in circumstances 'in which he potentially has a personal or reputational interest';

(b) there is a risk that Mr Borensztajn's evidence may conflict with that of his clients; and

(c) ABL has received property from the Martincroft Trust in potential breach of the trustee's fiduciary obligations.

23 The application was heard on 11 December 2025. The parties tendered two application books of materials by agreement.[3]

24 The applicable principles were not ultimately in dispute.

25 In Miller v Martin[4] ('Miller'), the Court of Appeal stated as follows:[5]

The Court has a broad, inherent jurisdiction to control its officers and protect its processes. As part of this broad jurisdiction, the Court may restrain a legal practitioner from acting in a proceeding where the integrity of the judicial process would be impaired if the legal practitioner did not cease to act. Instances where this jurisdiction has been exercised include where the legal practitioner is likely to be a material witness, where there is a material conflict between the interests of the client and those of the legal practitioner concerning the litigation in question or where, for any other reason, the independence and objectivity of the legal practitioner would be unacceptably compromised.

26 The essential principles relevant to the Court's exercise of power under its inherent jurisdiction to restrain a solicitor from acting in a legal proceeding were set out clearly by Brereton J in Kallinicos v Hunt[6] ('Kallinicos') in a passage subsequently endorsed by the Court of Appeal in Miller:[7]

[T]he court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice.

The test to be applied in this inherent jurisdiction is whether a fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

The jurisdiction is to be regarded as exceptional and is to be exercised with caution.

Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.

The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

27 Helen submitted that if one solicitor in a firm is disqualified from acting, the firm should not act.[8] However, it is not necessary to determine whether the applicable principle is as broad as Helen submits. That is because Mr Borensztajn is a partner of ABL and senior counsel for the Harrison/Lawerence Parties accepted the correctness of the following passage from the decision of Brereton J in Mitchell v Burrel ('Mitchell'):[9]

In Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491, Middleton J restrained an employed solicitor from continuing to act in a matter, but held that the firm by which she was employed was still at liberty to act. In Scallan, the solicitor who was a potential witness was a consultant to the firm (although he had been before then the firm's longstanding senior partner), but that does not advance the matter very far, because no injunction was granted in any event. It is notable that, in both of those cases, it was an employed solicitor whose conduct was in question, albeit in Scallan one who had been recently a senior partner. Against that, most cases point to the view that, in this respect, the law treats a firm of solicitors as a single entity, so that if one partner is disqualified, the firm should not act [Chapman v Rogers; ex parte Chapman, 545; Bowen v Stott [2004] WASC 94, [66] (firm restrained from acting where one partner was likely to be a material witness); Kooky Garments Ltd v Charlton, 590 (cited with approval in Afkos Industries Pty Ltd v Pullinger Stewart (a firm) [2001] WASC 69, [15])]. The incidents of the relationship of partnership (involving utmost good faith and loyalty between the partners), and those of solicitor and client (requiring any partner in a firm to do all in his or her power and use all knowledge and information available to them, including to their partners, to assist the cause of the client), it is difficult to see how, where one partner is disqualified, it could be acceptable for another partner in the same firm to continue to act.

28 Rule 27.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 provides:

In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member must not continue to act for the client if doing so would prejudice the administration of justice.

29 Whilst the rule is relevant to the exercise of the Court's discretion, it is necessarily 'far from decisive'.[10] As the rule reflects, the ultimate enquiry remains focussed on the effect of the solicitor acting on the administration of justice. The test is whether the administration of justice 'requires' that a solicitor be prevented from continuing to act.[11]

30 The possibility or probability of a solicitor being a material witness, even on controversial matters, is insufficient to warrant restraining the solicitor from acting. A solicitor who may be a material witness ought be restrained if they have a 'personal stake' in the outcome of the proceedings or if there is a sufficient degree of inconsistency between their anticipated evidence and that of their clients, such that a conflict of interest arises. These are potentially overlapping categories.

31 In the first category of conflict, it is necessary to specifically identify a 'personal stake' on the part of the relevant solicitor which calls for their restraint in the interests of justice. The required inquiry was explained as follows in Mitchell:[12]

[T]he line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.

32 In the second category of conflict, inconsistent evidence, Lyons J (as he then was) explained in Dugan v Process Holdings Pty Ltd[13] the inter-relationship between the assessment of the risk of conflict and discretionary factors as follows:[14]

Finally, in my view, these authorities highlight that the assessment of the degree of the risk of inconsistency, and thus any conflict, is of importance in determining whether the Court should exercise its discretion to restrain the solicitor or firm from acting. That is to say, the more likely it is that the evidence of the solicitor will give rise to a relevant conflict, the less likely the discretionary considerations would influence whether to make an order restraining the solicitor or firm from acting. By contrast, the less likely it is that evidence of the solicitor will give rise to a relevant conflict, the more likely that discretionary considerations would influence whether to make such an order.

33 Helen submits that much of the controversy in the Proceedings arises from Susan and Sandra's attempts to give effect to the Letter of Wishes prepared by ABL.

34 Paragraph 97 of the Harrison/Lawrence Parties' Amended Statement of Claim ('ASOC') alleged that on 21 August 2021, Sam and Renia signed the Letter of Wishes.

35 By paragraph 97 of Helen's defence and counterclaim ('DCC'), Helen responds as follows:

To the allegations in paragraph 97, she:

1. admits that on or about 21 August 2021, Sam and Renia signed a document prepared by ABL and titled Letter of Wishes - Sam and Renia Kurtz;

b. says further that:

1. the Letter of Wishes document was executed in suspicious circumstances.

PARTICULARS

Susan and/or Sandra gave instructions for and participated in the preparation of successive drafts of the Letter of Wishes. The Letter of Wishes document contained an in terrorem clause directed at Helen and her family (clause 12) in circumstances where neither Sam's nor Renia's Testamentary Documents contained such a clause and the proposals to include clause 12 in the Letter of Wishes did not come from Sam and Renia. Further particulars may be provided following discovery

1. the Letter of Wishes document was kept secret from Helen until after the deaths of Sam and Renia.

PARTICULARS

A copy of the Letter of Wishes document was not provided to Helen until 9 June 2022, notwithstanding its purported Operative Date commenced on 26 February 2022, namely the date of death of the first to die of Sam or Renia (clause 1). A copy of the Letter of Wishes document was provided by email dated 9 June 2022 from Georgina Ledin of ABL to Helen, Susan and Sandra and copied to Mr Borensztajn of ABL. Further particulars may be provided following discovery

1. Sam and Renia were of advanced age and suffering from physical and mental infirmities during the period shortly before and at the time of signing the Letter of Wishes document.

PARTICULARS

Sam was 90 years old at the time the Letter of Wishes document was signed and had been in hospital from about July to August 2021 suffering from lymphoma and prostate cancer. Renia was 86 years old at the time the Letter of Wishes document was signed and had suffered from an essential tremor of many years. Renia used a walking frame inside and outside the home. Renia had been in a clinically depressed state of 25 years prior to her death. Further particulars will be provided following discovery and the issuance of subpoenas.

1. the Letter of Wishes document departed from longstanding declarations and wishes contained in Sam and Renia's Testamentary Documents, namely that Helen, Susan and Sandra were intended to enjoy equal benefits under Sam and Renia's estates and the companies and trusts Sam and Renia had been associated with during their lives; and
   1. in the premises, the Letter of Wishes document was prepared, executed and kept secret from Helen in circumstances that were unconscionable.

36 Helen presently seeks the following relief in relation to the Letter of Wishes:

1. A declaration that the Letter of Wishes document is void as against public policy.
2. In the alternative to F, an order restraining the persons to whom the Letter of Wishes document is addressed from considering or taking its contents into account without first obtaining the leave of the Court to do so.
3. An order declaring that the resolution of Samran made on 20 September 2023, under heading Letter of Wishes, is void, alternatively voidable and may not otherwise be implemented or enforced by Samran in its capacity as trustee of the Charman Trust or any new trustee of the Charman Trust.

I. An order setting aside the resolution in paragraph H above.

1. An order declaring that the resolution of Penhill made on 20 September 2023, under heading Letter of Wishes, is void, alternatively voidable and may not otherwise be implemented or enforced by Penhill in its capacity as trustee of the Highglen Trust or any new trustee of the Highglen Trust.

K. An order setting aside the resolution in paragraph J above.

37 In paragraph 97 of the reply and defence to counterclaim ('RDCC'), the Lawrence/Harrison parties respond as follows:

As to paragraph 97, they:

(a) object to pleading to subparagraphs 97(b) and (c) on the grounds that they are embarrassing both in form and for want of sufficient particulars, and are liable to be struck out;

(b) say further that:

(i) instructions for the preparation of the Letter of Wishes were initiated by Sam in or about May 2021;

(ii) instructions for the preparation of the Letter of Wishes were provided by Sam and Renia to their longstanding solicitor, Joey Borensztajn of Arnold Bloch Leibler, over a three-month period from 26 May 2021 to 21 August 2021;

(iii) neither Susan nor Sandra were involved in giving instructions for the preparation of the Letter of Wishes;

(iv) neither Susan nor Sandra were present when the Letter of Wishes was signed;

(v) the execution of the Letter of Wishes was witnessed by Jolanta Brunak, who provided home care services for Sam and Renia; and

(vi) both Sam and Renia were of sound mind, and were not suffering from any cognitive issues, at the time of execution of the Letter of Wishes;

(c) under cover of the objection in subparagraph (a), deny subparagraphs 97(b) and (c).

38 Helen has also caused an Amended Defence and Counterclaim to be prepared. Helen has not yet sought the Harrison/Lawrence Parties' consent to those amendments. According to her senior counsel it remains 'a draft sitting in our camp'. Those amendments, if pressed, raise the following allegations:

(a) instructions for the Letter of Wishes were mainly provided by email;

(b) Sam and Renia's solicitor did not read out the Letter of Wishes to them before execution and was not present when they executed the Letter of Wishes;

(c) no medical practitioner was present when Sam and Renia executed the Letter of Wishes;

(d) either or both of Sam and Renia lacked capacity to make the Letter of Wishes; and

(e) either or both Sam and Renia did not understand and approve the contents of the Letter of Wishes.

39 I accept Helen's submission that these matters do not add significantly to the already existing controversy and have therefore determined the application having regard to the proposed amendments.

40 I will address the Letter of Wishes first because of the prominence given to it in submissions and because it concerns the allegation that Mr Borensztajn 'may' have a personal stake in the Proceedings and the allegation that Mr Borensztajn 'may' give evidence that conflicts with his clients.

The Letter of Wishes - inconsistent evidence or personal stake?

41 Helen alleges that the Letter of Wishes was prepared, executed and kept secret from her in circumstances that were unconscionable. That allegation is premised upon the following allegations:

(a) the Letter of Wishes was executed in suspicious circumstances, including because Susan and/or Sandra gave instructions for and participated in the preparation of successive drafts of the Letter of Wishes;

(b) the Letter of Wishes document was kept secret from Helen until after the deaths of Sam and Renia, notwithstanding that it purportedly became operative upon the death of the first to die of Sam or Renia;

(c) Sam and Renia were of advanced age and suffering from physical and mental infirmities during the period shortly before and at the time of signing the Letter of Wishes document; and

(d) the Letter of Wishes departed from longstanding declarations and wishes contained in Sam and Renia's testamentary documents.

42 As I have identified, Helen may also seek leave to amend her DCC to add claims that Sam and Renia lacked legal capacity to make the Letter of Wishes, and that they did not understand and approve the contents of the Letter of Wishes.

43 By the RDCC, the Harrison/Lawrence Parties say, among other things:

(a) instructions for the preparation of the Letter of Wishes were initiated by Sam in or about May 2021; and

(b) instructions for the preparation of the Letter of Wishes were provided by Sam and Renia to their longstanding solicitor, Mr Borensztajn of ABL, over a three-month period from 26 May 2021 to 21 August 2021;

(c) neither Susan nor Sandra was involved in giving instructions for the preparation of the Letter of Wishes;

(d) neither Susan nor Sandra was present when the Letter of Wishes was signed; and,

(e) Sam and Renia were of sound mind, and were not suffering from any cognitive issues, at the time of execution of the Letter of Wishes.

44 In seeking judicial advice, Susan has deposed as follows:

I was not involved in the preparation of - and I did not give instructions to ABL or any lawyer in relation to - the Letter of Wishes. I am informed by Sandra and believe that she was not involved in the preparation of - and did not give instructions to ABL or any lawyer in relation to - the Letter of Wishes.

45 According to Helen's written submissions, it follows that at least the following factual issues are in dispute:

(a) the extent to which Susan and/or Sandra gave instructions for, and participated in, the preparation of successive drafts of the Letter of Wishes;

(b) the extent to which Sam and Renia gave instructions for, and participated in, the preparation of the Letter of Wishes (including drafts of that document);

(c) the reasons for which the Letter of Wishes was kept secret from Helen; and

(d) the mental capacity of Sam and Renia during the period shortly before and at the signing of the Letter of Wishes document.

46 Helen submitted in writing that even without the proposed amendments to her pleadings, as set out above, Sam and Renia's mental capacity at relevant times is squarely put in issue by the allegations of unconscionability outlined above and the Harrison/Lawrence Parties pleaded response to those allegations. I agree.

47 Helen submitted that other subsidiary factual issues are also likely to arise and be contested including:

(a) The reasons for which Sam and Renia purportedly decided to prepare and execute the Letter of Wishes rather than amending their testamentary documents. Helen submits that the documents produced thus far do not record ABL's advice as to why that course should not be adopted or identify any other reason that Sam and Renia purportedly arrived at the decision to prepare and execute the Letter of Wishes.

(b) The date upon which Mr Borensztajn first received instructions to prepare the Letter of Wishes, noting that on the Harrison/Lawrence Parties' case instructions were first given on 26 May 2021, but the file note of Mr Borensztajn's conference with Sam and Renia on 26 May 2021 appears, according to Helen, to record Mr Borensztajn's intention to make changes to an extant draft of the Letter of Wishes.

(c) The reasons for which Mr Borensztajn did not advise Sam and Renia to sign the Letter of Wishes in the presence of a medical practitioner, in circumstances where, on Helen's case, Sam and Renia were suffering physical and mental infirmities and it was clearly anticipated by Sam and ABL that Helen may seek to challenge the validity of the Letter of Wishes.

(d) The reasons for which Mr Borensztajn has apparently recorded himself as saying, at the reading of Sam's will on 18 March 2022, that the Letter of Wishes would not be operative until Renia had passed away. According to Helen, that assertion is wrong. According to Helen, the express terms of the Letter of Wishes provided that it became operative on the death of either Sam or Renia, and that the assets of the Kurtz Group companies could not be dealt with in any way without the consent of the surviving parent. Helen also submits that the file note also records that a copy of the Letter of Wishes was 'not circulated' and that a reasonable interpretation of that file note is that the Letter of Wishes was not circulated because it was said by Mr Borensztajn to not yet be operative.

48 Helen submitted that 'there is ample evidence to establish a high level of risk that Mr Borensztajn 'might' give evidence that is inconsistent with the Harrison/Lawrence parties' case'. Helen also identified six documents from ABL's file that she contended Mr Borensztajn would likely be cross-examined on at trial. According to Helen, each of those documents is, on its face, arguably inconsistent with the Harrison/Lawrence Parties' position as pleaded, deposed to and set out in correspondence from ABL.

49 Helen submits that it cannot sensibly be disputed that Mr Borensztajn is 'a significant actor in a critical event in this proceeding'[15] and that it is unavoidable that his conduct and integrity will come under 'attack and review'[16] at trial.

50 I will consider each of the documents relied upon by Helen, including additional documents which were the subject of oral submissions. Before doing so, I note again that the proper inquiry in a restraint application is to ascertain the existence of a 'personal stake' on the part of the relevant solicitor and/or the degree of risk that the evidence of the solicitor will be inconsistent with the evidence or case of the client, such that there may be a conflict between the interests of the solicitor (whether financial, personal or reputational) and the interests of the client at trial.[17]

51 The first document relied upon was an email from the office@kurtz.com.au email address to Mr Borensztajn on 7 May 2021. The email stated as follows:

Hi Joey,

Could you please provide in writing, your discussion with David Lurie yesterday.

Also could you please correspond via email any further legal matters for me on a personal nature or under the Kurtz Group. If we have a discussion over the phone a follow up email outlining that discussion is needed so I can refer to it if need be.

Regards,

Sam Kurtz

Get Outlook for iOS

52 Hearsay evidence was adduced from Helen's son that:

(a) as far as Helen's son was aware, Sam and Renia did not use computers; and

(b) Sam's practice was, when he wanted an email to be sent in his name, to give instructions to somebody else to type and send the email.

53 No submission was made as to what, if anything, should be drawn from the fact that the email has the words 'Get Outlook for iOS' at the bottom of the email. There was no evidence as to whether Sam had, or used, a phone or tablet to send emails from time to time. In any event, counsel for Helen conceded that Helen does not know who sent that email. It is speculation to suggest to submit that it was Sandra or Susan and that therefore instructions were coming from them. Moreover, this email does not illustrate how it is suggested that Mr Borensztajn may give evidence which conflicts with Sandra and Susan. On the face of the email, Mr Borensztajn was receiving an instruction from Sam.

54 Helen further submitted that Mr Borensztajn 'took care to make sure that all instructions were coming from Sam and Renia...[b]ecause he suspected that some of them were coming from Susan and Sandra'. This submission does not rise sufficiently high to create a relevant risk of conflict between Mr Borensztajn, Sandra and Susan. First, as is obvious, it has an embedded assumption that Mr Borensztajn was ensuring that instructions came from Sam and Renia - a fact consistent with Sandra and Susan's pleaded case. Second, at its highest, it is no more than an assertion of speculation or suspicion on Mr Borensztajn's part. That speculation or suspicion is not evidence that Sandra or Susan provided instructions on or were involved in the Letter of Wishes.

55 Helen next relies on entries in an ABL invoice dated 31 May 2021, which are emboldened in the text below:

11-May- 21 Borensztajn J Reviewing emails from Sam, Susan and Sandra

11-May- 21 Borensztajn J Drafting email to Sam, Susan and Sandra

17-May- 21 Borensztajn J Reviewing email from David Lurie

17-May- 21 Borensztajn J Drafting letter to Sam Kurtz

20-May- 21 Borensztajn J Telephone call with Susan Harrison

24-May- 21 Borensztajn J Telephone call with David Lurie

25-May-21 Borensztajn J Reviewing emails and documents from David

Lurie in preparation for meeting

26-May- 21 Borensztajn J Attendance with Sam and Renia Kurtz

26-May- 21 Borensztajn J Drafting email to Michael Spiegel

26-May- 21 Borensztajn J Drafting letter to David Lurie

26-May- 21 Borensztajn J Drafting Letter of Wishes

26-May- 21 Simmons E Reviewing Wills, Codicils and Structure Chart

26-May- 21 Simmons E Drafting Letter of Wishes

27-May- 21 Borensztajn J Reviewing email from Michael Spiegel

27-May- 21 Borensztajn J Drafting email to Michael Spiegel

27-May- 21 Borensztajn J Drafting Letter of Wishes

27-May- 21 Borensztajn J Drafting letter to Sam Kurtz

27-May- 21 Borensztajn J Drafting email to Susan Harrison

27-May- 21 Simmons E Drafting Letter of Wishes

56 Helen submitted that the recorded communications with Susan and/or Sandra on 11 May 2021, 20 May 2021 and 27 May 2021 mean that 'it's open to infer that those communications may have related to the letter of wishes'. The difficulty for Helen on the present application is that those entries are not, on their face, inconsistent with Susan and Sandra's pleaded case. They do not establish a basis for concluding that Susan and Sandra's pleaded case is wrong when it alleges that instructions were provided by Sam and Renia with respect to the Letter of Wishes and that the instructions to prepare the Letter of Wishes commenced on 26 May 2021. Sam's own notes suggest that at or about this time, Sam and Renia had received what Sam described as 'a 40 page letter from Helen's solicitor' which required responding to. The entries do not demonstrate a firm basis for inferring that Susan or Sandra were involved in, or provided instructions on, the Letter of Wishes nor a sufficient possibility of a conflict between the evidence of Mr Borensztajn on the one hand and Sandra and Susan on the other.

57 Helen then referred to a handwritten file note of a conference between Mr Borensztajn, Sam and Renia on 26 May 2021 between '9.40 and 10.35'. The Harrison/Lawrence Parties have pleaded that this was the day on which instructions were first given for the Letter of Wishes. Helen emphasised the following matters in the file note:

(a) below the heading Attendance: Sam + Renia Kurtz, the following notation appears to be made 'Both with it';

(b) a notation 'Δ to LOW'.

58 The following submissions were made as a consequence of this note:

(a) first, that the capacity of Sam and Renia 'was front of mind' on 26 May 2021 and that there are no further references to capacity in the notes;

(b) second, that the handwritten triangle sign was a delta symbol, recording that there should be a change to the Letter of Wishes;

(c) third, as no reason has been identified for pursuing a Letter of Wishes as opposed to amending the Wills, Helen will contend that 'one reason that might explain the preference for a letter of wishes was some doubt about testamentary capacity'; and

(d) fourth, the reference to a delta sign suggesting a change to the Letter of Wishes called into question Sandra and Susan's position that instructions for the Letter of Wishes were first obtained on 26 May 2021 and on Helen's submission meant that the Letter of Wishes was drafted prior to the meeting on 26 May 2021.

59 These submissions identify no apparent or meaningful conflict between evidence which may be given by Mr Borensztajn on the one hand and Sandra and Susan on the other.

60 The suggestion that the Letter of Wishes originated because of a concern about testamentary capacity is speculation. There are a range of reasons as to why a letter of wishes may be adopted by estate planners. As has been observed in commentary:[18] a letter of wishes can address matters which simply are not covered by a will, including with assets the will does not regulate such as inter vivos and testamentary trusts; a letter of wishes can be made in a private context where such a document is not admitted to probate and is not admitted for public viewing; further, the wishes are not 'hardwired' but create flexibility. In the present case, having regard to its non-binding effect, there was no necessity that an amendment to the wish expressed in the Wills be made by an amendment to the Wills. On one view, the submission that the approach chosen was motivated by a concern over testamentary capacity is also contradicted by the annotation 'Both with it' to which Helen draws attention. Any contention by Helen that the Letter of Wishes was motivated by a concern over a lack of testamentary capacity will need to have a proper basis - no such basis was identified on the application. Moreover, there is presently no suggestion that when evidence comes to be adduced (if deemed necessary) as to why the Letter of Wishes was used, that there will be a conflict in the evidence between Mr Borensztajn and the Harrison/Lawrence Parties.

61 The challenge to the date on which instructions were first provided to prepare the Letter of Wishes is not sufficiently strong or consequential to presently conclude that there is a realistic possibility of meaningful conflict between the evidence of Mr Borensztajn and the Harrison/Lawrence Parties. The challenge to the commencement date of instructions appears to rest entirely on the use of the Δ symbol in Mr Borensztajn's file note. Pausing there:

(a) that assumes that Mr Borensztajn meant that the Δ symbol would mean 'change';

(b) that does not mean that the notation records a change to an existing Letter of Wishes but may also record that there was a change of approach to a Letter of Wishes; and

(c) that also does not necessarily mean that work by ABL on drafting a Letter of Wishes did not start earlier on the day of 26 May 2021.

62 For present purposes it suffices to observe that Helen is reading a lot into the file note to suggest a controversy over when instructions were first provided to draft a Letter of Wishes. ABL's invoice clearly identifies the drafting of a Letter of Wishes first occurred on 26 May 2021. Helen's submission therefore assumes that drafting of the Letter of Wishes occurred prior to 26 May 2021 and that ABL did not charge for that work. There is presently no logical foundation for making that assumption. The evidence supporting a conclusion of a potential conflict in evidence between Mr Borensztajn and the Harrison/Lawrence Parties is therefore weak. In any event, as the following exchange with senior counsel for Helen revealed, a contest over when instructions to draft the Letter of Wishes were first provided may be of no forensic significance:

THE COURT: Can I just understand this about the date on which the drafting starts. Why is that of significance in this litigation such that Mr Borensztajn would have a personal stake?

SENIOR COUNSEL: Well, if Mr Borensztajn's evidence is in conflict with the statement of claim - -

THE COURT: Yes.

SENIOR COUNSEL: - - - it's going to be relevant to credit.

THE COURT: Yes.

SENIOR COUNSEL: It's going to open up a trail of questions about what instructions were given, what were the initial instructions and what was said and who was present. It's going to open up an area of cross-examination. I don't know.

THE COURT: Yes.

SENIOR COUNSEL: It might prove to be red herring, but it may not.

63 Helen then referred to the fact that ABL's invoices record that on 5 July 2021, Mr Borensztajn had a telephone call with Sam Kurtz. Helen notes that Mr Borensztajn did not follow up with an email summarising the discussion despite Mr Kurtz's earlier request. No inference can be drawn from this alleged failure to suggest there is a likely conflict, let alone a significant conflict, between Mr Borensztajn's evidence and the evidence or case of the Harrison/Lawrence Parties.

64 At 12.32pm on 12 July 2021, Mr Borensztajn sent an email to the office@kurtz.com.au email address as follows:

Hi Bianca

I discussed an amendment to the Letter of Wishes with Sam Kurtz last Monday and received a message earlier today that Sam is unwell and Sam has asked me to amend the Letter of Wishes as a matter of urgency.

The revised draft Letter of Wishes marked. up to highlight the changes made to paragraph 10 is attached

Please bring this to Sam's attention

Regards

Joey

65 At 3.13pm on 14 July 2021, amendments to the Letter of Wishes were circulated by an email which was prima facie from Ms Szabo using the office@kurtz.com.au email address 'on behalf of Solomon Kurtz'. The email concluded with the following in red text 'Joey, there is a real matter of urgency to have the final document sent to Sam - your attention to this as a priority is greatly appreciated'. Helen submitted that the changes proposed in that email were all designed to strengthen Susan and Sandra's ability to control the entities and that the inference was open that the email was sent by Sandra and Susan.

66 I note that the documentary evidence established that it appears that many relevant emails were sent from the office@kurtz.com.au address by 'Ms Bianca Szabo on behalf of Solomon Kurtz'. No evidence was adduced from Ms Szabo to suggest that any emails authored from the office@kurtz.com.auoffice@kurtz.com.au account were authored on the instructions of Sandra or Susan.

67 At 7.50pm on 14 July 2021, Mr Borensztajn emailed a revised draft Letter of Wishes to the office@kurtz.com.au email address 'for Sam's review and comment' and requested '[p]lease let me know if Sam is satisfied that the amended Letter of Wishes reflects his wishes and I will provide a copy for signing'.

68 At 10.09am on 15 July 2021, an email was sent from the office@kurtz.com.au address to Mr Borensztajn identifying a 'couple of small amendments' and requesting that '[o]nce these changes are made could you please provide a final copy (in PDF format) for signing by Sam and Renia'. The email footer recorded the email as again being sent by Ms Szabo 'on behalf of Sam Kurtz'.

69 On 15 July 2021, Mr Borensztajn emailed a further version of the Letter of Wishes to the office@kurtz.com.au account. Mr Borensztajn also stated the following in his email:

Before you arrange for signing by Sam and Renia would it be possible for me to talk to Sam to discuss the changes made over the last few days? I am happy to go and visit Sam.

70 Helen's submission as to the relevance of this email was put as follows:

What we say is if Mr Borensztajn had been confident that those changes had been instructions from Sam, he wouldn't have had - he wouldn't have needed to go back and visit Sam to confirm them. The other thing is that he talks about visiting Sam, but there's absolutely no mention of Renia.

71 A file note records that Mr Borensztajn had a telephone conversation with Sam Kurtz on 28 July 2021. In writing, Helen relied upon a statement attributed to Mr Borensztajn '2 drafts when Sam unwell'. This document was not addressed orally. It suffices to observe that the annotation is made in the context of a broader discussion, the note of which by Mr Borensztajn shortly thereafter records 'Did he see L.W. = Yes' and 'Wants it strengthened?!'.

72 On 3 August 2021, Mr Borensztajn attended a conference with Mr Kurtz. On Helen's case, Mr Borensztajn's file note records that just under an annotation 'V1' is a note: 'Δ Sandra likely did it → why I need to discuss'. Opposite the annotation 'V4', Mr Borensztajn records 'did a full read thru'.

73 The words 'Sandra likely did it' were disputed on the application, but the Harrison/Lawrence Parties did not identify, with the benefit of Mr Borensztajn available to them, what the alternative reading of the words should be. Having read the note and in the absence of a competing version from the Harrison/Lawrence Parties, I am prepared to proceed for the purpose of this application on the basis that the words in the file note are 'Sandra likely did it'.

74 Helen did not submit on the application that Mr Borensztajn did not do a full read through of the then existing Letter of Wishes in conference with Mr Kurtz. Rather, Helen submitted that the forensic significance of the file note was Mr Borensztajn's alleged statement in the file note that the amendments were likely the product of Sandra's work. Helen submits that Mr Borensztajn will be vigorously cross-examined on those words in his file note and the inferences arising from them. That may be so, however, the present enquiry requires the identification of a likely conflict between the evidence of Mr Borensztajn and his clients or a personal stake on his part. Mr Borensztajn's speculation as to the possible author of certain amendments to the Letter of Wishes in advance of a meeting with Sam does not presently establish a sufficiently significant possibility of a conflict between his likely evidence and the likely evidence or pleaded case of the Harrison/Lawrence Parties to the effect that Susan and Sandra did not provide instructions. Mr Borensztajn's own speculation as to who might have authored some of the amendments does not amount to evidence that instructions came from Sandra and/or Susan. An evident purpose of the meeting, even on Helen's case, was to confirm instructions from Sam. Moreover, the file note of the 3 August 2021 meeting records a full thorough read through of the fourth version of the Letter of Wishes appears to have been undertaken with Sam.

75 The documentary evidence presently supports a prima facie conclusion that Renia was far less involved in the provision of instructions on the Letter of Wishes than Sam. However, she did attend the 26 May 2021 conference and did execute the Letter of Wishes. At this stage, there is no evident or apparent significant conflict between Mr Borensztajn's likely evidence as to Renia's involvement and that of the Harrison/Lawrence Parties. Moreover, in circumstances where Renia attended the 26 May 2021 conference and executed the Letter of Wishes, I do not think the fact of Renia having a lesser or substantially lesser involvement in the provision of instructions (if ultimately alleged and proven), would in and of itself generate a basis for concluding that Mr Borensztajn will be the subject of an attack warranting restraint.

76 Counsel for Helen accepted that at trial Helen would bear the onus of proving that Sam and Renia lacked capacity to execute the Letter of Wishes. Helen did not adduce any evidence on the application to identify the facts and matters being relied upon to allege that Sam and Renia lacked capacity. In oral submissions, her senior counsel made the following submissions:

THE COURT: Yes, and just so that I can understand the way in which the evidentiary contest will unfold, what evidence are you proposing to adduce, to demonstrate the lack of capacity?

SENIOR COUNSEL: Well, Your Honour, at this stage, we're still gathering that evidence.

THE COURT: Yes.

SENIOR COUNSEL: We have subpoenaed the medical practitioners - - -

THE COURT: Yes.

SENIOR COUNSEL: - - - for Mr and Mrs Kurtz.

THE COURT: What's the basis then for the positive proposed pleas to a lack of capacity?

SENIOR COUNSEL: We do have instructions from our client - - -

THE COURT: Yes.

SENIOR COUNSEL: - - about those matters.

77 Three observations ought to be made. First, the basis upon which the claimed lack of capacity is advanced appears at present to be solely on Helen's instructions. There was no evidence as to whether Helen observed her parents at or around the time of the execution of the Letter of Wishes and, if so, what she observed. Second, absent evidence as to why a conclusion as to lack of capacity should be drawn, it is difficult to evaluate how, if at all, Mr Borensztajn's evidence might conflict with that of Susan and Sandra. Third, there was no suggestion on this application of any disconformity in Mr Borensztajn's likely evidence on the capacity of Sam and Renia and the likely evidence of Sandra and Susan.

78 The evidence does not establish a significant degree of risk that Mr Borensztajn's likely evidence may conflict substantially or at all with Susan and Sandra's evidence and/or the Harrison/Lawrence Parties' case at trial. There is no sufficiently firm basis upon which such a conclusion can be drawn at the present juncture.

79 In reaching this conclusion, I am conscious that the outlines of evidence are yet to be filed in the Proceedings and that a significant conflict between the evidence of Mr Borensztajn and the pleaded and/or evidentiary position of the Harrison/Lawrence Parties may yet emerge. However, I am duty bound to decide this application on the evidence as it presently stands. It is abundantly clear, having regard to the way in which Helen's case was put on the application, that Ms Szabo is going to be an important witness as to whether the emails sent under her name were in fact sent by her, and if so, who she was receiving instructions from. Senior counsel for the Harrison/Lawrence Parties properly accepted that if something emerges in the future which meant that there was a direct conflict or a direct contest between the Harrison/Lawrence Parties and Mr Borensztajn, that would re-enliven the question of whether or not ABL should be restrained.

80 The Harrison/Lawrence Parties accept, for the purpose of the present restraint application, that Mr Borensztajn is likely to give evidence in the Proceedings. However, as Helen accepts, the fact that a solicitor may be a material witness on a controversial matter does not, of itself, justify a restraining order. As set out already, the authorities recognise that 'the line is crossed only where the solicitor has a personal stake in the outcome of the proceeding or in their conduct'.[19] As the Harrison/Lawrence Parties correctly submitted, there must exist some 'additional and special dimension' that renders the practitioner's evidence likely to be in conflict with their client's case, or places the practitioner's conduct itself in issue.[20]

81 Helen submits that the issues in which Mr Borensztajn and ABL 'may have a personal stake' arise in two contexts:

(a) in the context of the preparation and execution of the Letter of Wishes; and

(b) in the context of advice ABL has given in relation to three issues in dispute between the parties.

82 Helen contends that the independent objectivity of ABL will be compromised by reason of the personal reputational interest of Mr Borensztajn (and by extension, ABL) being at stake in the outcome of the proceeding. According to Helen, that personal reputational interest is at stake because Mr Borensztajn is likely to be extensively cross-examined and the subject of criticism.

83 In oral submissions, Mr Borensztajn's personal stake was put by senior counsel for Helen as follows:

THE COURT: Yes. In terms of the personal stake that you identify that Mr Borensztajn has with respect to that case as mounted, why does he has a personal stake in respect of those allegations?

SENIOR COUNSEL: It's because of his involvement. Various involvements that he has in the drafting of the letter of wishes, in keeping it secret from Helen and also in relation to some subsequent advice he has given.

84 As the authorities make clear, it is common for solicitors who are involved in preparing testamentary documents to act and give evidence in subsequent proceedings concerning, inter alia, the grant of probate. In the specific context of deceased estates and testamentary capacity, Windeyer J stated as follows in Scallan v Scallan[21] (the correctness of which was not challenged by Helen):[22]

I do not think it unusual for instructing solicitors in contested probate proceedings to give evidence as to facts relevant to instructions for and execution of a will. In the instant case the real issue is the capacity of the deceased. One can assume the solicitor attesting witness, who took instructions for the will, would give evidence relevant to that issue, but I do not consider this involves some possibility of conflict of duty in way sufficient to require the making of a restraining order against the wishes of those who desire to retain the witness as their solicitor.

85 The critical question is whether there are particular facts present which create a personal stake or conflict for the solicitor in question. In the present case, it is not apparent that Mr Borensztajn has any such personal stake.

86 It is plain that Mr Borensztajn was involved in drafting the Letter of Wishes. The Letter of Wishes is not a legally binding document. It is not a testamentary document. No party suggested that there was a legal or professional obligation on Mr Borensztajn's part to ensure that a medical practitioner assessed Sam and Renia's capacity at or about the time of its execution. Similarly, there was no suggestion that there was a legal or professional obligation on Mr Borensztajn's part to read out the Letter of Wishes to Sam and Renia at the time of its execution. At its highest, Helen's submission was that Mr Borensztajn might be 'subjected to criticism' for failing to arrange those things. The possibility of that criticism being made is insufficient, in my view, to create a personal stake on the part of Mr Borensztajn. Such a conclusion is reinforced in circumstances where the document in question is not legally binding, there is presently a paucity of evidence identified to support Helen's contentions as to the absence of capacity on Renia's part and Helen's senior counsel candidly submitted that it was unlikely that Helen would maintain a case that Sam lacked capacity.

87 There can be no suggestion that Mr Borensztajn had an obligation to disclose the existence of the Letter of Wishes to Helen. There is no suggestion that Mr Borensztajn had an obligation to advise Sam and Renia that they ought to disclose the existence of the Letter of Wishes to Helen whilst they were alive. Whether or not the Letter of Wishes was disclosed to Helen was a matter for Sam and Renia.

88 Finally, Helen also submitted that Mr Borensztajn would be cross-examined on the reasons he 'has apparently recorded himself as saying at the reading of Sam's will on 18 March 2022, that the Letter of Wishes would not be operative until Renia had passed away'. The correctness or otherwise of Mr Borensztajn's position will be determined as a matter of construing the Letter of Wishes. At present, it suffices to observe that on the written submissions[23] there are competing constructions advanced by the parties. In any event, it is not clear how Helen submits that events after Sam's death are relevant to the pleaded claims of unconscionability. Senior counsel for Helen accepted in argument that the alleged incomplete or erroneous reading of when the Letter of Wishes became operative may not be 'strictly relevant'.[24] Further, the pleaded claim is that the Letter of Wishes document 'was kept secret from Helen until after the deaths of Sam and Renia'. This allegation sits in direct tension with Helen's reliance on the fact that Mr Borensztajn referred to the Letter of Wishes at the reading of Sam's will. There is no pleaded claim that following being told of the Letter of Wishes at the reading of Sam's will, Helen asked for and was refused access to it.

89 I do not accept that the matters referred to above and relied upon by Helen, establish a 'personal stake', such that Mr Borensztajn has a financial, personal or reputational interest in the Proceedings.

90 This ground, which was alleged in writing to give rise to a 'personal stake' justifying restraint, was not elaborated upon in oral submissions. Analysis is therefore necessarily confined to the written case advanced by Helen.

91 In support of this ground, Helen focusses attention on the following allegations made by her in the Proceedings:

(a) Susan and Sandra have, by calling meetings of various Kurtz Group companies, refusing to facilitate Helen's meaningful participation in those meetings (including by refusing to provide documents and information requested by Helen in advance of those meetings), and purporting to pass resolutions at those meetings, engaged in oppressive conduct;[25]

(b) Susan and Sandra have caused Samran and Penhill to take steps to implement the Letter of Wishes without acting upon a real and genuine consideration of their discretionary powers, instead exercising those powers for an improper purpose and in bad faith, in breach of trust;[26] and

(c) Susan and Sandra have caused Martincroft, in breach of trust, to pay ABL's fees from trust assets.[27]

92 Helen submits that by letters dated 29 August 2025 and 10 October 2025, Helen's solicitors have twice raised the likelihood that ABL has advised the Harrison/Lawrence Parties in relation to those allegations. ABL's responses to those letters do not deny that it has so advised. According to Helen, that gives rise to the likelihood that the Harrison/Lawrence Parties had regard to ABL's advice, and that it informed the steps taken by Susan and Sandra when engaging in the conduct summarised in paragraph 91 above. For the purposes of this application and having regard to ABL's responsive correspondence, I draw that inference in respect of the acts taken in reliance of the Letter of Wishes by Samran and Penhill.

93 Helen therefore submits that, as far as she is presently able to tell, the Harrison/Lawrence Parties received advice from ABL at the time that they were engaging in the conduct that is the subject of the allegations summarised in paragraph 91 above. Helen submits that if ABL were to remain as the solicitors for the Harrison/Lawrence Parties, it would, in effect, be called upon to defend its advice at trial. Helen submits that is particularly the case in breach of trust allegations made in respect of Samran and Penhill (referred to at paragraph 91(b) above), where the particulars to those allegations include ABL's failure to advise those companies to obtain the Court's direction that it would not be improper for them to act on the Letter of Wishes.[28] Helen says that illustrative of the resulting conflict is the possibility that, if Helen were to succeed on these issues at trial, ABL might be exposed to a suit, either from Susan and/or Sandra, or one or more of the Kurtz Group. On Helen's case, that is another matter that gives rise to a conflict between the interests of ABL and the Harrison/Lawrence Parties.

95 The Harrison/Lawrence Parties are seeking judicial advice on whether the implementation of the Letter of Wishes is justified (including whether the resolutions seeking to effect the Letter of Wishes should be acted upon) and how the payment of ABL's costs should be dealt with. The impugned resolutions have not been implemented, having been overtaken by the judicial advice process.[29]

96 No pleaded matter requires ABL to defend the content or quality of its advice at trial. Accordingly, nothing in the Proceedings suggests that the conduct or credit of representatives of ABL will be put in issue in respect of these matters. There is presently no basis for asserting that any solicitor at ABL has any 'personal stake' in the outcome of the Proceedings by reason of any advice given.

97 It is commonplace that a firm involved in advising on a transaction subsequently acts for its client in litigation concerning that transaction.[30] That circumstance alone does not give rise to any 'personal stake' of ABL in the outcome of the Proceedings, nor does it give rise to any relevant conflict between ABL's interests and its duties to the Harrison/Lawrence Parties.

ABL's receipt of property - potential Barnes v Addy[31] liability

98 As stated above, Helen alleges that Susan and Sandra have caused Martincroft to pay ABL's fees from trust assets in breach of trust.

99 Susan and Sandra admit that they have paid, and continue to pay, ABL's fees (and disbursements, including to its counsel) from the assets of the Martincroft Trust. ABL appears to accept that it has received, by way of payment of its invoices, trust property of the Martincroft Trust. Those payments total $1,687,644.22.

100 Helen submits that, prima facie, if she is right that these payments have been made in breach of trust, there is a significant prospect that ABL could be liable for knowing receipt of trust assets and/or knowing assistance in a breach of trust. On that basis, it is submitted by Helen that there is a conflict between the interests of ABL on the one hand and Susan, Sandra and Martincroft on the other.

101 On the basis of the evidence before the Court, I accept the Harrison/Lawrence Parties' submission that there is no realistic prospect that ABL will be required to disgorge the funds paid to date in legal fees.

103 First, through the Proceedings, the Harrison/Lawrence Parties themselves seek judicial advice as to the proper treatment of the impugned payments; namely whether the Harrison/Lawrence Parties are justified in deducting those amounts from Helen's entitlements, or alternatively, how such costs should be paid, allocated or reimbursed. If the Court were to advise that these costs are not deductible from Helen's entitlements, the consequence would be that Susan and Sandra would be required to account for those payments.

104 Second, Helen has not pleaded any claim of knowing assistance or knowing receipt. Nor is such a claim foreshadowed in the proposed Amended Defence and Counterclaim. Junior counsel for Helen candidly conceded that Helen had not provided instructions to pursue such a claim.

105 Third, bringing the first two points together, Helen's counsel identified no logical foundation for suggesting that Helen will ever need to sue ABL. Commercial commonsense reveals that, on the facts of this case, Helen does not need to give instructions to sue ABL, because the substantial corpus of funds and assets available to Sandra and Susan will enable them to reimburse the Martincroft Trust in the event that the Court declines to advise them that they are justified in using the assets of the Martincroft Trust to pay ABL's legal fees. This readily explains why, despite having known of the alleged breach of trust since March 2024, and making allegations to that effect in draft Points of Claim dated November 2024, Helen has not been asked for, or has declined to provide, instructions to sue ABL.

106 Fourth, contrary to Helen's submissions, the facts of this case are factually very different to those which arose in Gangemi Pty Ltd v Luppino Pty Ltd & Anor ('Gangemi').[32] In that case, the issue before the Court was whether the plaintiff should be restrained from retaining a law firm in a proceeding for rectification of certain contracts of sale. The law firm had prepared the contracts of sale and had failed, on the plaintiff's case, to give effect to the common intention of the parties. Sifris J held as follows:[33]

In my opinion, the plaintiff's solicitors do have a conflict. It is a real conflict. Their desire, in common with their client, to succeed in the rectification claim goes beyond a desire to succeed as a solicitor acting for a client. They have a real and substantial financial interest in the outcome. If their client loses they will be liable. Their understandable desire to avoid such liability places them in a difficult and different position to that of the usual solicitor.

In my opinion a fair minded observer would recognise the difficult position of the plaintiff's solicitors and have reservations about the plaintiff's solicitors' ability to discharge their duties in circumstances where the solicitors face the prospect of substantial loss. Although relevant, the independence of counsel is no protection or panacea for the difficult position in circumstances where the solicitors provide instructions to counsel including the ability to terminate any retainer and brief other counsel or no counsel. It is also of little comfort that the solicitor who allegedly made the mistake would not take any part in the litigation. For so long as the firm remains liable they are in a difficult position arising out of the ever present conflict and cannot be in a position where they remain "unfettered about their own interests".

The causal nexus between the conflict and the integrity of the judicial process and the due administration of justice is obvious. This is particularly so in relation to the requirement that the integrity of the administration of justice be seen to be free of any conflict. How can it be, a fair minded observer would remark, that when the lawyers are assessing the position of their client, the strength of their client's case and the prospect and desirability of compromise, they will not be able to do so free of the ever present prospect that they may be liable. Such an encumbrance and restriction on the lawyers' objectivity and independence compromises, or at the very least will be seen to compromise, the integrity of the legal process, and is not ameliorated by independent counsel.

108 Unlike the law firm in Gangemi, ABL have no financial interest in the outcome of the judicial advice proceeding. Susan and Sandra accept a liability to account in the event that judicial advice is not received. There is no suggestion that they would be unable to do so having regard to the assets at their disposal.

Conclusion - refusing the restraint is reinforced by discretionary factors

109 The jurisdiction to restrain solicitors is exceptional and must be exercised with caution. The public interest in a litigant not being deprived of the lawyer of their choice without due cause is a powerful countervailing consideration, especially where the application is brought by an opposing party.[35]

110 Taken separately and cumulatively, the matters relied upon by Helen on this application fall short of establishing a warrant for using the Court's exceptional power to restrain ABL. There is presently little compelling evidence that Mr Borensztajn will give evidence that conflicts with the evidence or case of the Harrison/Lawrence Parties. Further, on the available evidence ABL do not have a 'personal stake' in the Proceedings. On that basis, I am far from satisfied that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires ABL's restraint.

111 Discretionary factors also militate in favour of refusing the relief sought by Helen.

112 First, the cost and disruption that would follow if ABL were restrained weighs in favour of refusing the restraint Application. ABL has acted for Susan and Sandra since June 2022, including in the probate process. It has represented the Harrison/Lawrence Parties in the Proceedings since August 2023. ABL has, necessarily, accumulated significant knowledge of the factual, corporate and family background. Further, it is self-evident that sensitive family litigation is stressful and taxing on litigants.[36] This consideration would be exacerbated by the loss of long standing legal advisors, with whom the Harrison/Lawrence Parties have developed a strong relationship.

113 Second, the Proceedings are well advanced. Pleadings have been closed for several months. The parties have given discovery, having settled discovery categories and exchanged lists of documents in September 2025. The matter is likely to be fixed for trial at the next directions hearing on 15 May 2026.

114 Third, legal costs incurred by the Harrison/Lawrence Parties in connection with the Proceedings and related matters totalled approximately $1,687,644.22 at the start of the month. Transitioning to new solicitors would necessarily involve extensive duplication of work, transfer of documents and instructions, and familiarisation with a detailed factual and procedural history. Mr Dollard estimates the additional costs likely to be incurred are in excess of $100,000.

115 Fourth, Helen has not acted in a timely way in bringing this application. During oral argument, senior counsel for Helen properly drew my attention to the fact that draft Points of Claim were drawn on behalf of Helen in November 2024. Those Points of Claim ventilate many of the allegations now alleged to warrant restraining ABL,[37] yet the application was only made almost one year later. Further, a large portion of documentary evidence that Helen seeks to rely upon to restrain ABL was provided to her in March 2024, including the file notes of Mr Borensztajn dated 26 May 2021, 28 July 2021 and 3 August 2021. The majority of the July 2021 correspondence relied upon by Helen was also produced in March 2024. While I accept some material has only become available to Helen through the process of formal discovery in September of this year, I do not accept this justifies the delay in bringing the application.

116 Finally_,_ to the limited extent it can be relevant on an application such as this, senior and junior counsel remain briefed to advise and appear in the Proceedings and I am confident will exercise the independent forensic judgments called for during the case. As accepted by senior counsel for the Harrison/Lawrence Parties, this cannot be a weighty or significant factor if at the heart of a lawyer's evidence is a relevant contest in which they have a personal stake. This is not such a case.

118 In relation to costs, I will make the following orders:

(a) the parties are to confer and submit any agreed minute of orders by 4:00pm on 6 February 2026;

(b) in the absence of agreement as to costs:

(i) the Harrison/Lawrence parties are to file and serve an outline of submissions of no more than two A4 pages in length by 4:00pm on 11 February 2026;

(ii) Helen is to file and serve an outline of submissions in reply of no more than two A4 pages in length by 4:00pm on 18 February 2026; and

(iii) the Proceedings will be listed for the purpose of argument as to costs on 20 February 2026 at 2.15pm.

KURTZ & SON DEVELOPMENT (NOMINEES) PTY LTD (in its capacity as Trustee of the HELEN KURTZ DEVELOPMENT NO 1 TRUST and others (according to Schedule 2 attached))

BOVERMERE PTY LTD (in its capacity as Trustee of the HELEN KURTZ INVESTMENT NO 1 TRUST and the HELEN KURTZ INVESTMENT NO 2 TRUST)

CLEVECROSS PTY LTD (in its capacity as Trustee of the SUSAN KURTZ INVESTMENT NO 1 TRUST and the SUSAN KURTZ INVESTMENT NO 1 TRUST)

HENDYVILLE PTY LTD (in its capacity as Trustee of the SANDRA KURTZ INVESTMENT NO 1 TRUST and the SANDRA KURTZ INVESTMENT NO 2 TRUST)

LIGHTWATER PTY LTD (in its capacity as Trustee of the S & R KURTZ INVESTMENT TRUST)

BROOKMAN PTY LTD (in its capacity as Trustee of the HARSHEEN TRUST)

SAMRAN PTY LTD (in its capacity as Trustee of the CHARMAN TRUST and the SAMRAN TRUST)

PENHILL PTY LTD (in its capacity as Trustee of the HIGHGLEN TRUST)

DALBAY PTY LTD (in its capacity as Trustee of the CHESTERVILLE TRUST)

MARTINCROFT PTY LTD (in its capacity as Trustee of the MARTINCROFT TRUST, the LAWKAN TRUST, the HARKAN TRUST, the JANKAN TRUST, the VALLEYRING H TRUST, the VALLEYRING J TRUST and the VALLEYRING L TRUST)

CENTRAL SUNSHINE PTY LTD (in its capacity as Trustee of the MICHAEL JANKIE TRUST)

BLUE SOUND PTY LTD (in its capacity as Trustee of the JEREMY JANKIE TRUST)

THURSDAY RIVER PTY LTD (in its capacity as Trustee of the ADAM JANKIE TRUST)

HONEYJACK ENTERPRISES PTY LTD (in its capacity as Trustee of the ANDREW HARRISON TRUST)

RANMAR ENTERPRISES PTY LTD (in its capacity as Trustee of the EMMA HARRISON TRUST)

LIGHTWAY NOMINEES PTY LTD (in its capacity as Trustee of the HARRISON CHILDREN TRUST)

LANGLEE INVESTMENTS PTY LTD (in its capacity as Trustee of the HAYLEY LAWRENCE TRUST)

HELNAT ENTERPRISES PTY LTD (in its capacity as Trustee of the NATALIE LAWRENCE TRUST)

TUNNEL STAR PTY LTD (in its capacity as Trustee of the JAMES LAWRENCE TRUST)

LENHAM PTY LTD (in its capacity as Trustee of the E ZALTMAN FAMILY TRUST)

KURTZ & SON (DEVELOPMENTS) PTY LTD (in its capacity as Trustee of the KURTZ & SON DEVELOPMENT UNIT TRUST)

KURTZ & SON (INVESTMENTS) PTY LTD (in its capacity as Trustee of the KURTZ & SON INVESTMENT UNIT TRUST)

SUSAN HARRISON (in her capacity as Executor of the Estate of RENIA KURTZ and the Estate of SOLOMON KURTZ)

SANDRA LAWRENCE (in her capacity as Executor of the Estate of RENIA KURTZ and the Estate of SOLOMON KURTZ)

HELEN JANKIE (in her personal capacity and in her capacity as Executor of the Estate of RENIA KURTZ and the Estate of SOLOMON KURTZ)

[1] David Hayton, Paul Matthews and Charles Mitchell (eds), Underhill and Hayton Law Relating to Trust and Trustees (LexisNexis Butterworths, 17th ed, 2006), 836-839.

[2] Susan and Sandra do not wish to cause the trustee plaintiffs to implement clause 10 of the Letter of Wishes on the basis they say it is no longer feasible for the Kurtz Group to continue operating in any capacity.

[3] Those application books included the following affidavits: the affidavit of Susan Harrison affirmed on 13 November 2024, provided without exhibits; the affidavit of Susan Harrison affirmed on 31 October 2025 with exhibits; the affidavit of Matthew Dominic Sweeney sworn on 10 November 2025 with exhibits; the affidavit of Simon John Dollard sworn on 1 December 2025 with exhibits; the affidavit of Matthew Dominic Sweeney sworn on 4 December 2025 with exhibits; and the affidavit of Simon John Dollard sworn on 9 December 2025 with exhibits.

[4] [2019] VSCA 86 (Kyrou, Niall and Ashley JJA) ('Miller').

[6] 64 NSWLR 561; [2005] NSWSC 1181 ('Kallinicos').

[7] Ibid 582-83, [76]. Citations omitted. See Miller, [19]. See also Dugan v Process Holdings Pty Ltd [2021] VSC 555, [61] (Lyons J, as he then was) ('Dugan').

[8] This submission was made by reference to the following authorities: Mitchell v Burrell [2008] NSWSC 772, [25] (Brereton J) ('Mitchell'), citing Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 (Middleton J) and Scallan v Scallan [2001] NSWSC 1078 (Windeyer J) ('Scallan').

[12] Mitchell [20]. See also Dugan [62].

[15] ACN 092 675 164 Pty Ltd v Suckling [2018] VSC 620; (2018) 56 VR 448, 468 [80]; [2018] VSC 620 (Riordan J).

[18] Andrew Aitken, 'Statement of wishes - useful or useless?' (2014) (May) Retirement & Estate Planning Bulletin.

[19] Dugan [62] quoting Mitchell [20].

[20] Makripoulias v Arhontovasilis [2022] VSC 53, [45]-[46] (Moore J).

[23] I note that in oral submissions, senior counsel for Helen submitted that '[i]t was to take effect after Mr and Mrs Kurtz's death'. Transcript of the hearing on 11 December in Kurtz & Son Development (Nominees) Pty Ltd & Ors v Helen Jankie ('Transcript'), 46:27-28.

[25] DCC, [100]-[107], [141]-[165].

[30] Mitchell [20] citing Scallan [11].

[31] [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244.

[32] [2012] VSC 168 (Sifris J) ('Gangemi').

[36] Brown v Guss (No 2) [2015] VSC 57, [177] (McMillan J).

[37] The draft Points of Claim are at Application Book 661-678 and in particular I have had regard to: the particulars to [12] the resolutions referred to at [8] and [18]; the particulars to [22] and the allegations at [25].