Richardson v Richardson

[2021] NSWSC 353

Supreme Court of NSW|2021-03-29|Before: Ward CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-03-29

Before

Ward CJ

Catchwords

(1993) 46 FCR 225 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
(1992) 109 ALR 57 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
(2007) 230 CLR 89
(2007) 236 ALR 209 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202

Source

Original judgment source is linked above.

Catchwords

(1993) 46 FCR 225 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353(1992) 109 ALR 57 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22(2007) 230 CLR 89(2007) 236 ALR 209 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202(2008) 232 CLR 635(2008) 247 ALR 412 Mao v Peddley [2001] NSWSC 254(1987) 162 CLR 221(1987) 69 ALR 577 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14

Judgment (20 paragraphs)

[1]

Background

The deceased died on 20 April 2016, leaving a Will dated 12 December 2011. The deceased was survived by her three sons, Mark, Gregory and Wayne. Without intending any disrespect, I refer to the family members by their first names.
Under the deceased's Will, after certain legacies (see cl 4(a)-(b)), the residue of the deceased's estate was left in equal shares to her three sons (cl 4(c)). The primary asset of the estate is the Epping Property as noted above. In the inventory of property annexed to the affidavit affirmed 19 October 2016 by Mark and Gregory in the probate proceedings, a value was attributed to the Epping Property of $1.3 million. At the time of the deceased's death, it was encumbered by a mortgage in favour of Westpac (securing an amount of $43,330.39 - as per [12] of the said affidavit).

[2]

Present proceeding

On 29 May 2019, Gregory and Mark commenced the present proceeding against Wayne seeking, inter alia, the appointment of an independent administrator to the estate, that Wayne be ordered to vacate the Epping Property, and seeking mesne profits and damages in respect of Wayne's occupation of the Epping Property since the deceased's death.
On 18 October 2019, Wayne filed a defence to the statement of claim. (Also prepared, but apparently not ever filed, was a statement of cross-claim.)
On 25 October 2019, a notice of appointment of solicitor was filed on behalf of Wayne, notifying that Mr Alun Hill of Armstrong Legal had been appointed to act as Wayne's solicitor in the 2019 proceeding.
On 28 October 2019, Registrar Hoskinson ordered Wayne to serve a proposed amended defence and amended cross-claim before 11 November 2019.
On 18 November 2019, Registrar Hoskinson ordered Wayne to serve a proposed amended defence and amended cross-claim before 19 November 2019.
On 9 December 2019, the matter was referred to Lindsay J, as Probate List judge. On that occasion, Wayne was represented by counsel (Ms Muscat). His Honour ordered that the amended defence be filed by 12 December 2019. The orders made by his Honour on that occasion relevantly record the following notations: 6) NOTE that it is agreed between the parties that: a) the grant of probate made on 26 June 2017 should be revoked. b) a grant of administration should be made to an independent administrator. c) by undertaking or order, a time should be appointed as the time by which the defendant should vacate the estate property known as xxx Midson Road, Epping. 7) NOTE that the issues between the parties yet to be resolved include the question whether any (and, if so, what) allowance should be made by the defendant to the estate for his use and occupation of the property at xxx Midson Road, Epping.
The plaintiffs emphasise the agreement (noted by his Honour in the orders made on 9 December 2019) reached between the parties, at a time when both sides were represented by counsel, for the revocation of the previous grant of probate, the appointment of an independent administrator, and that Wayne would vacate the Epping Property at an agreed time. The proceedings were stood over to 12 December 2019 before Lindsay J.
On 11 December 2019, Wayne filed an amended defence. It is evident on the face of the document that it was prepared with the benefit of legal advice. The legal representative identified on the document was Mr Hill.
On 12 December 2019, the matter came back before Lindsay J, who made orders and notations, including: 1) ORDER that the grant of probate made on 26 June 2017 to the first plaintiff and the defendant be revoked. 2) ORDER that letters of administration with the Will of the deceased dated 12 December 2011 annexed be granted to Terence George Hartmann in respect of the unadministered estate of the deceased. … 5) ORDER that the defendant deliver up to the administrator of the estate (Terence George Hartmann), no later than 23 January 2020, vacant possession of the property known as xxx Midson Road, Epping, in the state of NSW.
His Honour also made notations regarding the only remaining issues between the parties: 6) NOTE that an issue remaining to be resolved, as between the defendant and the administrator, is whether any (and, if so, what) allowance should be made by the defendant to the estate of the deceased for the defendant's use and occupation of the property at xxx Midson Road, Epping. 7) RESERVE for further consideration the question whether either the first plaintiff or the defendant might be entitled to indemnification out of the estate of the deceased for their conduct of the administration of the estate of the deceased pursuant to the grant of probate issued on 26 June 2017. 8) RESERVE all questions of costs.
Wayne did not vacate the Epping Property by 23 January 2020 as ordered. It appears that, on 22 January 2020, Wayne made an application to the vacation duty judge (Henry J) but that no formal orders were made on that day (see the subsequent ex tempore reasons of Hallen J on 30 March 2020).
On 3 February 2020, Mr Hill filed a notice of ceasing to act as Wayne's legal representative, notifying that a notice of intention to file and serve the notice of ceasing to act had been filed and served on 23 January 2020.
On 24 February 2020, Wayne sought an extension of time for delivery of vacant possession. Upon the giving to the Court of an assurance by Wayne that he would deliver up vacant possession of the Epping Property by no later than 23 March 2020, Lindsay J extended the time for delivery up of vacant possession to that date. Wayne did not comply with that assurance.
On 30 March 2020, application was made to the Succession List judge, Hallen J, on behalf of the plaintiffs, for the joinder of Mr Hartmann to the proceedings (to enable him as administrator of the estate to take such steps as considered appropriate to obtain vacant possession of the Epping Property). On that occasion, Wayne did not appear. There was an email sent to the Registry purportedly on Wayne's behalf by a Luke McMahon, to which his Honour referred in the ex tempore reasons given on that application (see Hallen J's ex tempore judgment, a copy of which is annexed to Mr Hartmann's affidavit sworn 22 January 2021, Annexure F), in which it appears that there was an acknowledgment that Wayne had not vacated the Epping Property (and, indeed, Wayne accepted in cross-examination before me that he had not vacated the property as at that stage (T 67.42-50)). His Honour proceeded to make an order joining Mr Hartmann as a defendant in the proceedings, observing that there was no adequate reason why a writ of possession should not issue and that Wayne's occupation of the Epping Property was unduly delaying the administration of the estate.
Hallen J made the following orders: 1. Orders that Terence George Hartmann, the administrator [of] the Will of the deceased annexed, be joined, with his consent, as a Defendant in the proceedings. 2. Dispenses with the Rules of Court requiring the filing of an amended Statement of Claim as it appears that there is not much purpose for that to occur. 3. Stands over the proceedings to the List of the Succession Judge on Monday, 18 May 2020.
On 1 May 2020, Mr Hartmann filed a notice of motion seeking the issue of a writ of possession.
On 18 May 2020, Hallen J made the following orders: 1. Grants leave to the second Defendant to issue a writ of possession, such writ to lie in office for 21 days to enable the first Defendant to seek such relief in relation thereto as he is advised. … 3. Directs the Plaintiffs to file and serve any evidence upon which it is intended to rely, including any expert evidence going to the issue of mesne profits, or any claim for damages, by 4:00 p.m. on 15 June 2020.
On 21 May 2020, pursuant to his Honour's orders, a writ of possession was issued authorising the Sheriff to enter onto the Epping Property and cause Mr Hartmann to have possession of the Epping Property (with the writ to lie in the Sheriff's office for 21 days before its execution).
On 18 June 2020, Gregory and Mark filed expert evidence in support of the claim for damages and/or mesne profits.
On 22 June 2020, when the matter came back before Hallen J, his Honour noted that: 1. Notes that the remaining issue in the proceedings relates to a claim for damages and/or mesne profits which issue cannot be completed until such time as possession of the property situated at and known as xxx Midson Rd, Epping has been completed.
On 2 July 2020, the Sheriff entered the Epping Property and evicted Wayne, with some of his personal possessions remaining on the property.
On 13 July 2020, Mr Hartmann wrote to Wayne requesting that he remove his personal possessions from the Epping Property (see Mr Hartmann's affidavit sworn 22 January 2021 at [15]). On 17 July 2020, Wayne sent an email to Mr Hartmann, acknowledging that he had ignored all mail (due to the "precarious state" he was in) and had not had a laptop for some 8 weeks (see Mr Hartmann's affidavit sworn 22 January 2021 at Ex H). The email informed Mr Hartmann that Wayne had that day filed for orders for a temporary barring of any persons entering the Epping Property pending the hearing of his notice of motion.
On 20 July 2020, Mr Hartmann responded to Wayne's email, advising that a writ of possession had been issued and that the locks had been changed. The email noted that, for the purposes of access to the Epping Property, Ms Maddrell was acting as Mr Hartmann's agent and had possession of the keys, and requested that Wayne make arrangements with Ms Maddrell to collect his personal effects as soon as possible as Mr Hartmann wished to place the property in order for sale. The letter noted that, if any further attempt was made by Wayne to attempt to have the (already executed) orders set aside, and the estate incurred any expense as a result, then Mr Hartmann would seek indemnity costs from Wayne.
A letter again requesting that Wayne make arrangements to collect his personal possessions (and attaching a list of those possessions) was sent to Wayne on 30 July 2020.
A further letter was sent to Wayne on 10 August 2020 by Mr Hartmann, advising that if arrangements were not made for collection of the goods within 7 days then he would direct that the goods be placed in storage and would seek an order under the Uncollected Goods Act 1995 (NSW) and would also seek an order for the costs of storage and legal costs.
Also on 10 August 2020, Mr Hartmann sent an email to Westpac noting that there were no liquid funds in the estate; that Wayne had left substantial personal effects at the Epping Property; that Wayne had been asked to collect those goods urgently in order that the property might be offered for sale with vacant possession and had not responded thereto; and that it might be necessary to place the goods in storage and obtain an order for disposal of the uncollected goods. Mr Hartmann sought an advance from the bank of funds ($2,000 to $3,000) to enable the removal of the goods and storage until an order for their disposal could be obtained. Mr Hartmann offered a personal undertaking in support of his request.
On 11 August 2020, Mr Hartmann sent an email to both Wayne and Mark advising that he proposed to authorise Ms Maddrell to dispose of all furniture and effects of the estate that remained in the Epping Property as she deemed fit unless he heard from them within 7 days.
On 18 August 2020, Ms Maddrell wrote to Mr Hartmann advising him that she had located a storage facility to store Wayne's possessions (see Mr Hartmann's affidavit sworn 22 January 2021 at [24]). On the same day, Mr Hartmann wrote to Wayne indicating that his goods were to be stored at a storage facility unless he contacted Ms Maddrell (Mr Hartmann's affidavit sworn 22 January 2021 at [25]).
On 17 September 2020, Mr Hartmann sent an email to Wayne advising that when the matter next came before Hallen J (21 September 2020), orders would be sought for the disposal of all of Wayne's personal effects at the expiration of 14 days unless he made arrangements with the storage proprietor and Ms Maddrell and paid for the storage and collection of the goods. The email noted that all expenditure on the goods left behind in the Epping Property would be deducted from any moneys due to Wayne on the sale of the residence.
On 22 September 2020, Mr Hartmann served on Wayne a notice of proposed disposal of uncollected goods under the Uncollected Goods Act.
The Epping Property was listed for auction on 5 December 2020. It appears that, shortly prior to the auction, Wayne took steps to prevent it proceeding. On 4 December 2020, in the Duty List, Parker J dismissed a notice of motion filed by Wayne, who was by then again self-represented, seeking to set aside the order made by Lindsay J for possession and restoring Wayne to the Epping Property (Richardson v Richardson [2020] NSWSC 1773 at [16]). His Honour said at [22] that there was no evidence relevant to any of the matters in r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on which to set aside Lindsay J's orders. Wayne does not appear to dispute that he was seeking to prevent the auction on 5 December 2020.
The Epping Property sold at auction and Mr Hartmann has deposed (in his affidavit sworn 24 March 2021) that he has received in trust the balance of sale proceeds being $1,562,354.68. Mr Hartmann has also deposed to the legal costs incurred by the solicitors formerly acting in relation to the administration of the estate (Bainbridge Legal) who have obtained a certificate of judgment in relation to their account in the sum of $62,424.96 and to the costs incurred by Mr Hartmann since his appointment as administrator (office account expenditure of $4,214.17 including GST and work in progress amounting to $35,370 plus GST), which amounts do not include the costs of preparation and attendance at the hearing before me.
On 11 December 2020, Wayne sent an email to the chambers of Hallen J (not copied by him to the plaintiffs or Mr Hartmann) attaching a notice of motion and affidavit, seeking injunctive relief namely the freezing of sale proceeds of the Epping Property "until the filed Statement of Claim against the estate is heard" (see Mr Hartmann's affidavit sworn 22 January 2021, Annexure R). (That notice of motion has not formally been filed and in any event the relief sought therein would appear to be otiose as the net sale proceeds are currently held in Mr Hartmann's trust account.)
On 11 December 2020, Hallen J directed the plaintiffs to provide a memorandum identifying the parts of the claim which were yet to be determined, an index of affidavits, and to identify any further documents on which it was intended to rely, and also to serve any further evidence by 21 January 2021.
On 21 January 2021, Gregory and Mark served a memorandum identifying the parts of pleadings yet to be determined and also the estimates of each claim. On 25 January 2021, Gregory and Mark served an index of affidavits.
Wayne then, on 19 March 2021, prior to the date listed for the hearing before me, sought to file a notice of motion before the Duty List judge (Robb J), seeking leave to administer interrogatories on the plaintiffs' expert witness. No notice of that motion had been provided to the other parties. Robb J refused to list the notice of motion in the duty list and advised, through his Honour's associate, that the application should be referred either to me or to Hallen J. Meanwhile, Wayne had apparently already filed the notice of motion through the Registry and a listing had been given before Hallen J on 29 March 2021. As that was the date for the hearing of the extant issues in the claim, that motion was then directed to me. (As it transpired, I considered that motion to be unnecessary since there was an opportunity for Wayne to ask questions of the expert in cross-examination during the course of the hearing.)

[3]

Hearing

As noted above, orders have already been made in relation to the appointment of an independent administrator of the estate and for vacant possession of the Epping Property to be given. The balance of the relief sought in the statement of claim (as identified in the memorandum dated 21 January 2021) goes to the issue of damages or mesne profits. The amount claimed totals some $353,703.38, comprising: 1. mesne profits from 20 April 2016 to 19 April 2017 at $615 per week ($31,980); 2. mesne profits from 20 April 2017 to 19 April 2018 at $660 per week ($34,320); 3. mesne profits from 20 April 2018 to 19 April 2019 at $685 per week ($35,620); 4. mesne profits from 20 April 2019 to 19 April 2020 at $660 per week ($34,320); 5. mesne profits from 20 April 2020 to 2 July 2020 at $675 per week ($7,714.28); 6. interest on mesne profits ($14,681.17); 7. water rates including interest ($419.36); 8. Council rates including interest ($20,938.05); 9. electricity ($205.81); 10. maintenance of house for sale and pool including rubbish removal ($21,455.71); 11. independent administrator's costs and disbursements ($28,765); 12. plaintiffs' costs of the present proceedings ($60,500); 13. Counsel's fees ($15,000); 14. interest on loan from Westpac ($3,000); 15. costs of the Probate Proceeding ($40,000, or as assessed); 16. insurance premiums ($4,784).
The plaintiffs seek orders that the sums found to be payable be deducted from Wayne's share of the deceased's estate.
At the hearing, the plaintiffs filed a notice of motion seeking that costs be ordered against Wayne on an indemnity basis and that there be a specified gross sum costs order in the amount of $129,626.22 (or an amount as may be determined by the Court) and that the costs as ordered also be deducted from Wayne's share of the deceased's estate (T 98.23-5).
As to this notice of motion, I made directions at the conclusion of the hearing for Wayne to file and serve any brief submissions as to costs within 7 days, since he indicated that he was not in a position to deal with that issue on the day of the hearing. No substantive submission was filed within that period; rather, what was received was a cover page but with no content. Following an enquiry made by my associate, Wayne eventually forwarded a 25 page submission, not copied to the plaintiffs or Mr Hartmann, which contained various assertions as to factual matters and accuses the witnesses who gave oral evidence at the hearing of giving false testimony; and which extended well beyond the ambit of the submissions for which the direction for further submissions was given - that being limited to costs. Nevertheless, I have considered those submissions and summarise them in due course. (I appreciate that the plaintiffs and Mr Hartmann have not had an opportunity to respond thereto. However, on the basis that they do not change the position in substance from that which was ventilated at the hearing, it is not necessary for me to call upon the plaintiffs or Mr Hartmann for further submissions.)
As to the quantum of costs sought ($129,626.22), this is drawn from Mr Sidaway's costs affidavit sworn 25 March 2021 and represents costs on an actual solicitor/client basis.
In support of the extant damages and mesne profits claims, the plaintiffs relied upon affidavit evidence from their solicitor, Mr Sidaway (affidavits of Kerry Walter Sidaway sworn 6 December 2019, 21 January 2021, 24 March 2021 and two affidavits sworn 25 March 2021); affidavits of Mr Terence George Hartmann sworn 6 December 2019, 22 January 2021 and 24 March 2021; affidavits of Gregory's partner, Ms Ninette Guilia Maddrell, sworn 23 January 2021 and 24 March 2021; and an affidavit sworn by Mark on 25 March 2021. Expert evidence from a certified practising valuer, Ms Dimity Marshall, was also relied upon (as to the value of the Epping Property at various dates and as to the market rental value of the Epping Property at various dates) (see Ms Marshall's affidavit sworn 18 June 2020). Wayne cross-examined each of Mr Sidaway, Ms Maddrell, Mark and Ms Marshall (and accuses each of giving false testimony).
For his part, Wayne relied on an affidavit he had sworn in the Probate Proceeding (being an affidavit sworn 21 July 2017 which was then purportedly updated on 10 March 2019 and again on 17 December 2019) and affidavits sworn by him on 12 October 2019, 22 February 2021 together with a more recent affidavit affirmed 17 March 2021. Wayne was cross-examined by Counsel for the plaintiffs and (briefly, going to issues in relation to the administration of the deceased's estate) by Mr Hartmann.

[6]

Claim for mesne profits

It is noted that, upon the grant to Mr Hartmann as administrator of the deceased's estate, the Epping Property vested in him as administrator pursuant to s 44(1) of the Probate and Administration Act 1898 (NSW) (see O'Regan v Hellstrom [2020] NSWSC 16 (O'Regan v Hellstrom) at [24] per Lonergan J). As Mr Hartmann's right to possession arose as at 20 April 2016 (the date of the deceased's death), the plaintiffs say that Mr Hartmann may claim mesne profits against Wayne from that date.
Quite fairly, as a matter of candour, counsel for the plaintiffs made reference to the decision of the High Court in Minister of State for the Interior v RT Company Pty Ltd (1962) 107 CLR 1 (Minister of State for the Interior v RT Company) and also to the decision of Edelman J, then sitting in the Supreme Court of Western Australia, in Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 (Hampton v BHP Billiton Minerals) at [270]-[323]).
The plaintiffs say that, insofar as these decisions suggest that a claim for possession and a claim for mesne profits cannot be combined in the same proceedings (see Minister of State for the Interior v RT Company at 7 per Taylor J; and see the application of such a rule by Master Macready, as the Associate Judge then was, in Richardson v Pedler [2001] NSWSC 221 and Oliveri v Jones [1999] NSWSC 154), there are other authorities (particularly in the succession context) from which it is said that it is not uncommon for an executor or administrator to combine claims for possession and mesne profits against individuals who have remained in a property forming part of the estate.
In that regard, reference is made to Mao v Peddley [2001] NSWSC 254; (2002) DFC 95-249 (Mao v Peddley), where Master McLaughlin, as the Associate Judge then was, made orders for possession and mesne profits in the same proceedings (at [118]); Lowery v Lowery [2013] NSWSC 691 (Lowery v Lowery), where Ball J made an order for mesne profits in circumstances where the administrator had already obtained an order for possession (at [3]); and O'Regan v Hellstrom, where Lonergan J made orders for possession and "occupation rent" in the same proceedings (see at [34]).
The plaintiffs say that the approach taken in Mao v Peddley, Lowery v Lowery and O'Regan v Hellstrom is correct, noting that r 6.18 of the UCPR permits the joinder of causes of action (which, it is said, when read in conjunction with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), must permit the joinder of possession and mesne profits claims). It is noted that this approach has been taken in cases outside the succession context (the plaintiffs citing, by way of example, In the matter of MSU Management Pty Ltd - Urusoglu v MSU Management Pty Ltd [2011] NSWSC 54 at [390]-[396]; Arambasic v Veza (No 4) [2014] NSWSC 1109 at [172]-[173] per Sackville AJA (noting that the mesne profits claim was assessed in Arambasic v Veza (No 5) [2014] NSWSC 1399); Holmes v Evans [2018] NSWSC 260 per Rothman J; Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd [2018] NSWSC 1586 at [150]-[154], [161]-[166] per Walton J; Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 803 at [53]-[57] per Brereton J, as his Honour then was; and Hua Cheng International Holdings Group Pty Ltd (Receivers & Managers Appointed) (In Liquidation) v James Hui Xiao Xu [2020] NSWSC 922 at [8]-[9], [17]-[19] per Henry J.
The plaintiffs maintain that Mr Hartmann is entitled to mesne profits in circumstances where he has a grant of administration and has already taken possession of (and indeed sold) the Epping Property.

[13]

Independent administrator's costs

The plaintiffs accept that, ordinarily, the administrator may simply recover his costs under his indemnity from the estate. However, it is submitted that, in the present case, an order should be made that Mr Hartmann's expenses be deducted from Wayne's one-third interest in the deceased's estate. Reference is made to Stegnjaic v Stegnjaic [2019] NSWSC 1208, where such an order was made by Rein J after the removal of the defendant as executor and appointment of an independent administrator in circumstances where the defendant's conduct had frustrated the administration of the estate (see at [29]).
The plaintiffs seek an order that Mr Hartmann be permitted to deduct his costs and disbursements from Wayne's share in the deceased's estate for the following reasons: that Wayne refused to vacate the Epping Property in breach of a Court order and delayed the administration of the estate ; that this conduct meant that Mr Hartmann was made to expend further costs in seeking an order for possession and then a writ of possession; that after Wayne departed from the Epping Property, he did not remove his personal goods which meant that Mr Hartmann was put to additional costs to ensure Wayne's goods were removed from the Epping Property and Mr Hartmann appointed Ms Maddrell as his agent in assisting with the removal of Wayne's goods.
It is said that, had Wayne not frustrated the administration of the estate by opposing probate and then by neglecting his duties as executor, the appointment of an independent administrator would not have been necessary.
It is submitted that costs totalling $64,576.88, comprising Ms Maddrell's "costs" of maintenance of the house for sale ($21,455.71) (see Ms Maddrell's affidavit sworn 23 January 2021, Annexure B); office disbursements of $4,214.17 and independent administrator's costs and disbursements of $38,907 (see Mr Hartmann's affidavit sworn 24 March 2021, Annexure C), should be deducted from Wayne's share in the deceased's estate on an indemnity basis plus costs of the Probate Proceeding.
As to Ms Maddrell's "costs", it appears that this figure is reached by adding $18,000 (on the assumption of 400 hours of work at her salary of $45/hr) + $2335.71 + $760.00 + $360.00 (though this is not actually totalled up by the deponent at [17] or Annexure B and the figure of $18,000 appears to be a very general estimate of time spent).
It is accepted that the costs associated with the sale of the Epping Property were costs that would have been incurred in any event (i.e., despite Wayne's conduct), and so those costs (see Mr Hartmann's affidavit sworn 24 March 2021, Annexure B) should not be deducted from Wayne's share in the estate.

[16]

Wayne's submissions

Wayne's initial written submissions went in large part to the issue as to whether he should be permitted to administer interrogatories (an issue that was rendered otiose by the fact that he had the opportunity to cross-examine Ms Marshall). The proposed interrogatories went to matters such as the state of the Epping Property at the relevant time. The broad themes that emerged from Wayne's written and oral submissions (as well as his affidavit evidence, a large part of which was submission, and his evidence in cross-examination) may be summarised as follows.
First, Wayne is unshaken in the belief that his brother, Gregory, removed from the Epping Property, the morning after their mother's death, a Codicil to the Will (the contents of which Wayne says he has not seen) in which Wayne believes that his mother amended her Will (as I understand it, he believes this was to redress the position under her Will which does not reflect the promise that Wayne maintains that the deceased had made to him to the effect that she would give him a share in the Merinda Avenue property inheritance, which he understood would be achieved through her final Will). Wayne maintains an entitlement to what he referred to as "compensatory" orders or promissory estoppel arising out of the deceased's promises to him and his caring for the deceased (T 57.46-9).
Second, as to the complaints made of obstruction of the administration of the estate, Wayne's position is that he has only fought to honour the deceased (who, nevertheless, he described in his evidence as a "somewhat vindictive" woman (T 58.1-2)) and "on principle, for his rights left unenforced and unsupported by the Court, against theft, perjury and threats and intimidation". Wayne is adamant that a serious crime (of theft of a testamentary instrument) has been committed and has not been investigated by the Court. Wayne complains that the relief sought by the plaintiffs would reward such criminal conduct.
Third, Wayne makes allegations of serious sexual misconduct on the part of his brothers (for which, as I understand it, one or both has been incarcerated) and as to death threats and intimidation against him on the part of his brothers. In part this seems to be raised by Wayne as an explanation for his conduct (in that he says that, until his brother Gregory was incarcerated, he left the house early every day and returned late at night because he was in fear of his brother, sometimes sleeping in the park at night, and so was not able to maintain the property during daylight hours).
Fourth, Wayne has also complained consistently that he was not provided with all of the "estate material" as was his entitlement as co-executor (and he still maintains this notwithstanding the confirmation by the estate's solicitors that he has been provided with all the estate documents in their possession).
In his written submissions, Wayne accuses the current estate solicitor of having had "some relationship with the prior solicitor" (I read this as no more than an allegation of a prior professional relationship) and as being reckless in attempting to write and file the current claim without strong supporting evidence. He also complains that he was "abandoned" in early 2020 by his own solicitors and (which it must be said would be extraordinary if this were to be the case) submits that they consented to the revocation of probate and vacant possession of the house without his authorisation.
Wayne says that he is a victim of various crimes ("some outside the parameters of the current case, but indicative of character and propensity for crime"); that he feared interaction with his brothers; that he was oppressed and subdued by his brothers; and that he has suffered health conditions, was affected by loneliness and concerns arising during the COVID pandemic; and that he is weak and vulnerable.
It is apparent from the litany of complaints in his submissions that Wayne believes that he is a victim of criminal conduct. He does not accept that he "solely" refused or neglected to sell the Epping Property and maintains that he did not have exclusive possession of the property (since some of his brothers' possessions were left on the Epping Property) and that he is not obliged to pay rent for his (admitted) occupation of the Epping Property at least in part for that reason. Further, Wayne maintains that the property was "unrentable" due to defects such as a broken hinge on the front door and the lack of a pool fence. He has put in evidence (admitted for the fact of communication, not the truth of the communication) letters from real estate agents to the effect that the property could not be marketed for rent with those defects. In cross-examination of Ms Marshall, some suspicion was aired by Wayne as to the fact that Ms Marshall's letter of instructions was received the same day that (and only shortly before) she inspected the Epping Property. Wayne also complains that there was internal damage to the property caused when the police came to arrest Gregory; and that his brother was responsible to rectify that damage.
Wayne says that delays in progression of the estate matter have been due to the plaintiffs and their solicitors "with extended ongoing delays created by the Court itself" and he complains that the integrity of the Court has been repeatedly attacked and the "[l]aw(s) of the land flaunted, without any consequence or due attention, by both Plaintiffs and a third [unnamed] person (crimes and misconduct) and two solicitors (misconduct)".
In his lengthy submissions forwarded after the hearing, Wayne raised numerous complaints as to the claim made against him; asserting that the claim is "deficient, both in evidence, veracity and non compliance to UCPR requirements re vagueness in details and particulars being left unanswered and thus compromising a defence" and that it is "misleading and or false in various points and reached the threshold of being fraudulent" (the allegations of falsehood and fraud being very serious allegations indeed to make in relation to a verified pleading). Wayne also maintained his allegations as to the commission by the plaintiffs of a serious crime (the alleged theft of the Codicil).
Wayne's submissions then proceeded to address five issues: the rent payable (if any); the degree of possession of property and any advantage by him; various claimed costs; various claimed losses/damages; and (the only issue on which his submissions were to be directed) costs on an indemnity basis (but also addressing the testimony of the plaintiffs' witnesses in some detail).
As to the question of rent, Wayne reiterated his submission that the house on the Epping Property was, at no time prior to, or since 20 April 2016, at a minimum condition required by law to be rentable - asserting that the 2016 appraisal relied on by the plaintiffs was "entirely unreliable" and was "biased and orchestrated to meet the wishes of the engaging solicitors"; pointing to the appraisals that Wayne had obtained (to which I have referred above); describing various alleged defects by reference to which it was said the house failed to meet statutory tenancy requirements; and complaining again as to damage to the garage door caused by Gregory's tow truck and damage caused to the front and rear laundry doors when the police search warrant was executed.
Wayne again raised issues as to the plaintiffs not taking any steps themselves to repair or make ready the house for rent or to assist in repairing the damage caused after April 2016; as to the plaintiffs using "large areas" of the garage for storage; and asserting that both bedrooms had items "inside behind locked doors". Wayne pointed to the evidence in cross-examination and in affidavits by Mark and Ms Maddrell as to the admitted presence of the plaintiffs' possessions in the garage and bedrooms.
Wayne maintains that the house could not and would not have been rented had he "by choice been able to have earlier vacated the property" and hence that no actual loss has been sustained. He maintains that the plaintiffs have only chosen "to chase and pursue rent due to unfettered greed" without care to the fact that they had stored items on the property.
As to the second issue (possession/advantage by reason of occupation of the Epping Property), Wayne reiterates his submissions as to he not having sole possession and his assertion that he did not restrict access to the property or exercise control over the property (describing himself as the "primary occupier"). He again asserts that Ms Maddrell had entered the home on occasions without notice to him. Wayne complains that items and valuables were illegally removed (several boxes of crystal and silverware); reiterates his submissions as to his high anxiety, stress and fear due to an alleged death threat by Mark and lies by Gregory to the police; and says that intimidation, other threats, coercion, and other abuses followed the death threat in 2016 to 2018.
In summary as to the second issue, Wayne maintains that he never had sole possession of the house; never acted as if he alone owned the house; and obtained no advantage of residing at the property "other than not needing to move out into public housing, which should never have been needed if not for crime". Wayne further submits that he "could not morally have left the house after witnessing the last instructions stolen and kept hidden, and knowing that the house was to be left in full or majority part to him and for it to become a new family home as wished" (which bespeaks a deliberate decision not to comply, among other things, with the undertaking he gave to the Court to vacate the property). He also asserts that the deceased knew that he had been financially and emotionally "bankrupted" by the family years before, "having needed to leave work in October 2007".
As to the third issue (improvement of the property), Wayne asserts that he did keep the house tidy and clean, and that he did pay for certain items, but that he was only able to do so after August 2018 (reiterating his submission that he could not spend daylight hours safely at the house "to attend to the basics"); and he again complains that the plaintiffs did nothing as to repairs, upkeep or the like until after his eviction; and says that the plaintiffs and Ms Maddrell refused all requests and demands for repairs for the damage caused directly and indirectly by Gregory.
On this third issue, Wayne says that "[t]he Plaintiffs argument of this point is true in premise, but false and misleading" (from which I take him to mean that he accepts that he did occupy the house over the relevant period).
Wayne then sets out lengthy submissions addressed to what he refers to as his admitted "technical contempt of court"; reiterating that he was without financial means; that the coronavirus pandemic meant that he could not leave; and that he developed deep depression and hopelessness.
As to his role as executor, Wayne maintains that he fulfilled his most important initial duty, which he identifies as attempting to find, prove and seal in probate the last known instructions of the deceased (this being again a reference to the alleged stolen Codicil). He maintains that he was "oppressed and kept subdued" in attempting to deal with his brothers' aggression and threats, while still attempting to protect the estate; and he reiterates his complaints as to the lack of estate material.
Wayne reiterates his submissions as to the alleged promises made to him by the deceased (described as "compensatory" and "promissory estoppel"); and makes reference to illegal assistance (mortgage fraud) and lies by the deceased to the police to assist his brothers.
As to the costs awarded in 2017, Wayne again maintains that the award of costs by Lindsay J was contrary to the evidence and wrong; he refers to attempts to obtain assistance from Law Access and Legal Aid; and he says that at that time "all faith in the legal system and court was lost, with the only wish that it had of been [sic] Kunc J's court from the outset".
As to the issue raised by the plaintiffs as to his obstruction of the sale of the house, Wayne submits that the plaintiffs' submissions were "purposefully highly misleading" and laid false blame against him. He maintains that there was an agreement in principle that had been in place since 2016 for the purchase of the property by the plaintiffs. He reiterates his complaints as to the lack of assistance by the plaintiffs in the preparation of the house for sale; asserts that the plaintiffs had no desire to sell the house; and accuses the plaintiffs and their solicitors and Ms Maddrell of attempting to mislead the court and of having lied in affidavits and sworn testimony (referring to various annexures to his notice of motion and 30 July 2019 affidavit in this regard).
In the next section of his submissions, Wayne raises yet again the alleged theft of the Codicil and his complaint that there has not been any judicial examination of that allegation (a finding as to which he says would render all hearings, decisions and costs from 2016 "nulled" but "should leave the perjurious affidavits and misconduct in covering the crime available to scrutiny and penalty". He reiterates the concern that a decision in this matter will decide the extent to which the plaintiffs are rewarded for "clearly shown misconduct"; and "repeated non-fulfilment of directions" that he says has caused delays. Complaint is again made as to non-receipt by him of "any of the estate material known to exist" nor any lists of the jewellery and portable assets that he said were taken from the home.
At some length, Wayne then sets out his analysis of the evidence of the respective witnesses who were cross-examined by him (Mr Sidaway, Ms Maddrell, Ms Marshall, and his brother, Mark). I do not propose here to set out all of the assertions made by Wayne as to their evidence. Suffice it to say that he accuses each of false evidence. I have re-read the transcript of the cross-examination. I do not accept that a serious finding of false evidence can properly be made.
By way of example, Mr Sidaway's denial of awareness of an agreement for the purchase by the beneficiaries or certain of the beneficiaries of the Epping Property is consistent with the material to which Wayne has drawn attention which (while certainly referring to a desire to purchase the home) does not establish any binding agreement to that effect. Indeed, Wayne's submissions refer to correspondence on his part in which he confirms that he is still awaiting "a firm and binding agreement".
As to Ms Maddrell's evidence, the complaints made relate (among other things) to disputed versions of conversations; as to whether (as Wayne asserts) she had entered the Epping Property without constraint and without knocking on the door first or texting her intention; and as to her answers when questioned about locked bedroom doors and the storage and removal of Gregory's possessions from the property. As to the questioning of Ms Maddrell in relation to Ms Marshall's inspection of the Epping Property, the submission seems to be that Ms Maddrell did not permit Ms Marshall to view the interior or downstairs section of the property (presumably, the suggestion is that this was so that Ms Marshall was not aware of the interior of the property "with all its faults". However, it was not suggested to Ms Marshall that Ms Maddrell had accompanied her or had denied her access to the interior of the Epping Property.
It seemed to me apparent from the cross-examination of Ms Maddrell and the dismissive way in which Wayne spoke of her when he himself gave evidence (Wayne stating that she was "only" his brother's girlfriend (T 64.21-31)) that there is a history of interaction between the family members that has no doubt affected Wayne's perception of Ms Maddrell. However, I do not accept that her evidence was demonstrated to be false (much less that it was knowingly false).
As to Ms Marshall, Wayne was highly critical of her report and of the basis on which she carried out the inspection of the Epping Property (i.e., without internal access to the property). He also pointed to various features of the disrepair to the property that he contends would have been impossible not to notice (the "gaping garage door broken away from the frame and laying at an angle"); and is critical of her claimed lack of knowledge of tenancy regulations. Wayne "strongly contends" that her evidence in this regard (that her qualifications - as a certified practising valuer - are not those of a real estate agent and did not require her to be aware of all relevant laws and regulations) is "an incorrect and intentional lie".
Wayne goes further and submits that Ms Marshall "learnt of what was sought, and that her report accommodated that goal" (an accusation in effect that Ms Marshall was prepared to, and did, breach the expert witness code of conduct by tailoring her report). He submits that the witnessing of her affidavit by Mr Sidaway, the instructing solicitor, "further indicates a lack in true independence and objectivity". It appears from his submissions that Wayne has made further enquiries (the outcome of which was not known by him at that stage) of the Australian Property Institute as to what an expert in Ms Marshall's position ought to be aware of as to applicable tenancy laws.
Ultimately, Wayne's submission is that Ms Marshall was not granted internal access "so as to not become aware of visible issues". He maintains that the report should be given no weight; and that it is "at a minimum inaccurate, and together with circumstances of the execution of the appraisal and glaring omissions, with incorrect and unfounded improvement assumptions and unreported regulatory noncompliance". This leads to the repetition of his submission that the house was never rentable (and hence that no loss was incurred).
At the hearing, Wayne also submitted that no loss had been incurred because the Epping Property had improved in value over the time. That appears to rest on the difference between the initial estimate of value and the ultimate sale price. However, there is nothing to establish what price might have been achieved had the property been put to auction at an earlier time; and in any event, Wayne, having made it impossible for the Epping Property to be sold (while he remained in occupation of the property and failed to vacate the property), can hardly complain that the estate claims the loss of rent over that period.
Finally, as to Mark's evidence, Wayne (who claimed to have been unable to take steps in relation to the property because of death threats, intimidation and oppression by his brothers) seemed to have no difficulty in cross-examining Mark. Wayne contends that Mark's statement that his bedroom had been cleared before he was jailed in November 2016 and his denial that his door was locked with his possessions inside was false. This is another instance of a disputed factual assertion that I am not in a position on the evidence before me to test. It was put to Mark in cross-examination by Wayne that he had admitted to a crime having been committed (namely the removal of items from the home prior to probate) insofar as Mark had given evidence that he had "helped remove mum's clothes and other items and cleaned up". Mark did not concede that.
Ultimately, I was left little further advanced by the evidence that emerged in cross-examination. It may be accepted that there were items of Gregory and Mark left in the Epping Property after the deceased's death; that the condition of both the interior and exterior of the Epping Property was such that repairs would have been required to put it into a lettable position; and that the expert report was based on no more than an assumption as to the condition of the interior of the property. For the reasons I come to in due course, that does not to my mind dispose of the claim for damages on behalf of the estate.
As to the claimed costs, Wayne made the following submissions: as to Ms Maddrell, that she chose to do the work on the Epping Property; that she did not do all the work so claimed; that it was Mark's responsibility to take over from Ms Maddrell when he was released from jail in late June 2020 and that Mark had been seen doing work alone on the property after that; that nowhere near 400 hours can be accounted for in reality; and that Ms Maddrell did not actually lose wages nor did she do or need to do all the work that was claimed. He nevertheless concedes that "some small compensation is due for her efforts".
As to the cost of house preparation and repairs, Wayne says that he has been "unfairly solely burdened" by the claims; that the costs sought for various repairs have been bundled together without itemisation; and that the estate should be liable for those costs.
As to the 2017 costs order, as already noted, Wayne claims that this was unfair and unjust. Wayne further submits that, had the alleged theft of the Codicil not occurred, then none of the hearings, costs and delays would have ensued.
As to the costs of the current hearing; again, Wayne says that these would not have been incurred if not for the crimes and misconduct of the plaintiffs; that the witnesses at the hearing before me had lied; that the original claim should never have been authored and should have been struck out; and that he is the victim of multiple crimes and misconduct events (while "attempting to act as executor with reliance upon the law and courts that never was forthcoming").
Wayne says further that "[a]bove all else, superseding all that followed, is the alleged crime of 20 April 2016 [the alleged theft of the Codicil] that could not have been earlier proven or referred to without the likely serious harm, and not before the supply of estate material using executor rights".
In the summation section of his submission, Wayne invokes s 316 of the Crimes Act 1900 (NSW), which deals with the concealment of a serious indictable offence. He submits that both Mr Sidaway and Mr Hartmann are aware of the allegation that a serious crime has been committed (and implicitly seems to suggest that they had an obligation to bring this to the attention of an appropriate authority such as this Court). Wayne maintains that both he and the deceased are the victims of the alleged crime and implores the court not to "reward in any way the alleged offenders with this serious issue left outstanding and unresolved". Wayne submits that: The net result, for the Defendant who has not worked since 2007 due to the family, and is destitute, has only fought to honour the deceased and, on principle, for his rights left unenforced and unsupported by the Court, against theft, perjury and threats and intimidation … is to devastatingly receive nothing … due to crimes.

[17]

Determination

At the outset, it is important to note that what was before me was solely the extant part of the claims brought by the plaintiffs in the 2019 proceeding after the issues as to the revocation of the 2017 grant of probate, appointment of an independent administrator to the estate, and order for possession of the Epping Property had already been dealt with by other judicial officers.
In particular, issues relating to the alleged theft of the Codicil (so passionately raised in oral and written submissions time and time again) were not before me for determination (and, indeed, it would appear that the liberty reserved to Wayne by Lindsay J at the time of the grant of probate to Gregory and Wayne expired many years ago and has now been overtaken by the final orders made in relation to the Probate Proceeding). In any event, neither the complaints as to the alleged theft of the Codicil nor the assertions of an entitlement based on some form of compensatory promise or promissory estoppel are before me for determination. Nor are the numerous allegations of misconduct levelled by Wayne against persons involved in the proceedings matters that are here before me for determination. Furthermore, there is no evidence (simply mere assertion by Wayne) of many of the allegations that he has made. Whether there ever was a Codicil, and what its contents may have been, may never be known. Those are certainly matters that cannot here be determined. Wayne's stated expectation and reliance on the rule of law for fair justice and for those alleged to have committed crimes to be made answerable does not address the difficulty that those alleged crimes are not before me for determination.
What is to be determined is simply the plaintiffs' claim, on behalf of the estate, for damages or mesne profits arising out of the occupation by Wayne of the Epping Property since the deceased's death; the alleged failure or neglect by Wayne of his duties as an executor of the estate; and the advantage allegedly taken by Wayne of his position as an executor of the estate by failing to act in accordance with the terms of the Will.
It should be noted that the plaintiffs' claim as pleaded in the statement of claim sought simply an order for mesne profit (see prayer 6), not damages for breach of executorial duties as such (although such breaches were pleaded in broad terms in the pleading - see [12]-[13], [15]-[16]) nor was there a pleading of unjust enrichment or a claim for restitution, as such. However, at least by the time of the orders made on 9 December 2019, it had been noted by Lindsay J that the issues between the parties yet to be resolved included the question whether any (and, if so, what) allowance should be made by Wayne to the estate for his use and occupation of the Epping Property (so that Wayne has been on notice of this extant issue for quite some time) and on 12 December 2019, Lindsay J expressly reserved for further consideration the question whether either the first plaintiff (Gregory) or the defendant (Wayne) might be entitled to indemnification out of the estate of the deceased for their conduct of the administration of the estate of the deceased pursuant to the grant of probate issued on 26 June 2017.
When the matter was before Hallen J, orders were made (as I understand it from the submissions on the present application this was in order to assist Wayne to understand the claims made against him but without the additional expense of further pleadings) for the plaintiffs to outline in a memorandum those parts of the claim which were yet to be determined. That was done in the memorandum filed on 21 January 2021. The issues were there identified by reference to the orders sought in the statement of claim that had not yet been determined as follows (and there was a schedule identifying the particular amounts claimed): 1. Order 6 that the Defendant pay mesne profit for the rent of the real estate property. 2. Order 7 that the defendant pay interest. 3. Order 8 that the defendant pay the costs of these proceedings without recourse to the estate. 4. Order that the defendant pay costs. 5. Order 10 that he administrator of the estate be entitled to deduct such sums as the court finds against the defendant from his entitlement in the estate. The plaintiff's estimate of those sums is set out in the attached schedule.
It should be noted that no claim for damages for breach of executorial duties was expressly there identified (although it may be that it is encapsulated in the claim for mesne profit for the rent in respect of the property), though the breaches are pleaded in the statement of claim; and there is no claim pleaded for restitution or unjust enrichment.
This is of relevance because of the difficulty, to which Counsel for the plaintiffs quite properly drew attention, as to the claim for mesne profits having been made at a time when the plaintiffs did not have actual possession of the property (but were seeking an order for possession and, at least from the time of the appointment of Mr Hartmann as administrator of the estate, Mr Hartmann having a clear right to possession of the property retrospectively to the date of the death of the deceased).
Minister of State for the Interior v RT Company stands for the proposition that a claim for mesne profits cannot succeed unless a plaintiff proves that the plaintiff entered into actual possession or occupation of the subject premises before bringing such a claim. In the present case, the claim for possession and the claim for mesne profits were brought in the same proceeding (see statement of claim filed 29 May 2019), and thus the plaintiffs did not enter into actual possession of the Epping Property before bringing the claim for mesne profits. While the plaintiff in this case has cited a number of cases in this Court where mesne profits have been awarded before the plaintiff entered into possession of the relevant property (as to which, see above), none of those cases appears to cite Minister of State for the Interior v RT Company or to deal with the proposition arising from that case.
In Minister of State for the Interior v RT Company, the Commonwealth compulsorily acquired land in October 1948, on which land there was a multi-storey building known as Rolfe's Building. Although the Commonwealth obtained actual possession of the first and second floor of the building at a comparatively early date, it did not obtain possession of the basement. On 25 July 1956, the Minister of State for the Interior (suing on behalf of the Commonwealth) commenced proceedings for mesne profits arising from the defendants' occupation of the basement in trespass. On 20 June 1957, the Commonwealth obtained actual possession of the basement. The statement of claim was then amended to seek mesne profits for the whole period of the defendants' occupation of the basement from the date of acquisition until 20 June 1957.
The claim for mesne profits failed because the plaintiff had not obtained actual possession of the subject premises before bringing the suit. The writ was brought on 25 July 1956, but the Commonwealth did not obtain possession of the basement floor until 20 June 1957. As Taylor J explained (his Honour providing the single judgment of the High Court), a claim for mesne profits is a particular form of the action for trespass and, as such, it is based upon an injury to the plaintiff's possession. A plaintiff with a right to immediate possession of the land can, upon entering or re-entering into actual possession, sue for trespass committed by third parties between the date of accrual of the right and the date of entry (this being known as "trespass by relation" because the plaintiff is deemed by a legal fiction to have been in possession ever since the accrual of their right of entry). However, Taylor J explained that it is necessary actually to enter or re-enter the land before bringing a claim for mesne profits.
In Minister of State for the Interior v RT Company, actual possession of the premises occurred after the claim was made but before the date of hearing. Taylor J said (at 7) that "if the matter had been investigated at the date of the commencement of the suit it would have been found that the plaintiff's cause of action had not then accrued". His Honour held that "it is incumbent upon the plaintiff to establish the existence of his cause of action as at the date of his writ and the failure or success of his action will not depend upon whether the trial takes place promptly or happens to be delayed until after he has entered into possession".
In the present case, it is clear that claims for possession and for mesne profits were made in the same proceeding (see the statement of claim filed 29 May 2019), whereas in Minister of State for the Interior v RT Company, the claim for mesne profits was made independently of proceedings for possession. However, this distinction seems immaterial given that the relevant finding turned on the fact that the claim for mesne profits was made before re-entry into the property. Taylor J, at 7-8, considered circumstances apposite to the present case, when his Honour said: It is, however, quite anomalous that a defendant having, for a period of years, thwarted a plaintiff in his attempts to exercise his undoubted right to possession of land should then defeat the plaintiff's subsequent claim for mesne profits merely upon the ground that the claim was made before re-entry. Particularly is this so where, as here, the plaintiff has taken proceedings to obtain possession and, prior to the making of his claim, has obtained a warrant of possession but has been prevented from executing it. For a time I was disposed to think that much might be said for the proposition that if a claim for mesne profits might be joined with a claim for possession, a claim of the former character ought to be regarded as maintainable, even without re-entry, at any time after judgment for the plaintiff in the proceedings in ejectment or for possession (cf. Cole on Ejectment p. 635). But consideration of cases such as Aslin v. Parkin (6); Doe v. Wright (7); Wilkinson v. Kirby (1); Pearse v. Coaker (2); and Harris v. Mulkern (3) has convinced me to the contrary. [Citations omitted.]
On the reasoning of Taylor J in Minister of State for the Interior v RT Company, if the present claim for mesne profits had been heard at any time between 29 May 2019 (when the proceeding was commenced) and 2 July 2020 (when the administrator actually entered the property), the claim would have failed because the cause of action had not yet accrued. Accordingly, as the argument would run, the claim should not now succeed simply because the hearing happened to take place after there was actual entry into the premises.
As noted above, the plaintiff has cited a number of cases where an order for mesne profits was made before the plaintiff had obtained actual possession of the relevant premises. However, as noted above, none appears to cite or to consider the decision in Minister of State for the Interior v RT Company (presumably it not being cited on that occasion).
The fact that, in the present case, actual possession has been obtained and the Epping Property has now been sold does not appear to be material. The critical point in Minister of State for the Interior v RT Company is as to whether the claim for mesne profits was maintainable before actual re-entry; the fact that actual possession had been obtained before the date of hearing did not change the conclusion that the cause of action had not accrued at the time of suit and thus the claim failed.
In the case of Hampton v BHP Billiton Minerals, Edelman J recognised Minister of State for the Interior v RT Company as the leading Australian case establishing the requirement of proof of occupation (see at [312]). His Honour stated (at [318]) that "the High Court has iterated and reiterated that a claim for mesne profits is one which can only be brought when physical possession is recovered or after an action is brought for possession" (my emphasis).
At [319], Edelman J cited Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, where Brennan J (as his Honour then was) stated at 39 that a "lessor who, under a proviso for re-entry, serves the lessee with process for recovery of possession is entitled to mesne profits for the period during which the lessee remains in possession after service" (citing Canas Property Co Ltd v KL Television Services Ltd [1970] 2 QB 433 (Canas Property)). However, that statement explains a principle derived from Canas Property which relates to the time at which mesne profits begins to run in cases where there has been a purported breach of a covenant to pay rent. It does not establish that a claim for mesne profits can be brought before re-entry but after an action for possession is brought. In any event, in the present case, the claim for possession and claim for mesne profits were brought together.
The decision in Minister of State for the Interior v RT Company gives rise to the difficulty whereby a plaintiff is required to obtain actual possession of the relevant property and only then to bring a claim for mesne profits arising from the trespass, which may appear to be contrary to the overriding purpose of the civil procedure rules in New South Wales, which require the "just, quick and cheap resolution of the real issues in the proceedings". The plaintiffs in the present case drew attention to this issue by their reference to s 56 of the Civil Procedure Act.
A perhaps not dissimilar issue as to standing was considered by me in Hewitt v Gardner [2009] NSWSC 705, where I considered the authorities as to the circumstances in which proceedings would be an incurable nullity or merely subject to a procedural irregularity which could be cured. After citing passages from Ingall v Moran [1944] 1 KB 160 (cited in Minister of State for the Interior v RT Company) and Minister of State for the Interior v RT Company, I concluded (at [40]-[41]) that: …[t]o an extent, it seems that it is the inability of a plaintiff to rely upon causes of action arising after the commencement of proceedings which underlies a number of the cases in this area. … In that regard, there may be some doubt as to whether the principles espoused in Ingall (and the other cases cited by Taylor J) continue to apply, in circumstances where the rules and legislation governing civil procedure now allow for amendment of pleadings so as to add causes of action arising after the commencement of proceedings.
Pausing here, whether r 6.18 of the UCPR, which deals with amendment of pleadings to add causes of action, would have any relevance in the present circumstances might depend on the time at which the proposed new cause of action were to be sought to be added (logically, to address the problem identified in the present case, it would need to be after the taking of possession - whereas here the plaintiffs already sought to maintain a cause of action for mesne profits prior to the order for possession being made and executed).
Fundamentally, the question that seems here to arise is whether the perceived defect in the claim for mesne profits (by reason of the proceeding having been commenced before the cause of action had accrued), at least on the authority of Minister of State for the Interior v RT Company, is capable of being cured as a procedural defect (pursuant to s 63 of the Civil Procedure Act) or is a substantive issue. Here, where the plaintiffs brought a claim for mesne profits at a time before actual possession of the premises had been obtained, if possession was an element of the cause of action then it would logically fail because that element could not be established at that time. Whether the problem could have been rectified by amendment to the statement of claim to include a fresh claim for mesne profits after actual possession had been taken (albeit one relating back to the date of death) is an interesting issue but this did not occur.
I consider myself bound by the conclusion in Minister of State for the Interior v RT Company (endorsed as it subsequently seems to have been by Edelman J in Hampton v BHP Billiton Minerals). Accordingly, I have concluded that the claim for mesne profits fails.
As to the claim for damages for loss occasioned by the estate by reason of the alleged breach of Wayne's duties as an executor, I consider this to be within the scope of the pleaded claims in the statement of claim, although the relief was not expressed as damages as such. It is clear that the plaintiffs alleged that Wayne had failed or neglected to perform his duties as executor and that he had taken advantage of his position (by not taking steps to realise the main asset of the estate while he remained in occupation of the Epping Property). Relief for such breaches is, in my opinion, encompassed in the claim for relief for "[s]uch further orders as the Court deems fit" (prayer 12), particularly since the memorandum of extant issues makes clear that what was sought by the plaintiffs was a reasonable rent or occupation fee for the period of Wayne's occupation of the premises.
The duties of an executor may be summarised as follows: an executor has a duty to get in the assets of the estate, to pay expenses and liabilities of the testator, and then to distribute the residue of the estate in accordance with the Will and produce accounts (Juul v Northey [2010] NSWCA 211 at [196] per McColl JA). Consistent with an executor's functions is the existence of a fiduciary duty owed by the executor to the beneficiaries under the Will, requiring them to abide by the fiduciary "no conflict" and "no profit" rules. Where an executor has possession of an asset of an estate, in some instances, that possession may be inconsistent with the performance of executorial and fiduciary duties, in turn giving rise to a breach of those duties and an order to pay an occupation fee.
Further, unless an executor effectively renounces the role, a person named as an executor is ostensibly obliged to prove the will (by making an application for probate). It follows that an executor "who has already proved a will cannot be permitted to dispute its validity or contend for any entitlement at variance with the terms of the will properly construed" (Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 at [48] per EM Heenan J). This explains the express reservation in the orders made by Lindsay J (to which I have referred earlier) of liberty for Wayne to apply to revoke the grant of probate and prove the Codicil (which liberty has long since expired).
There is no doubt that an executor is entitled to obtain documents relating to the estate and that, for at least a period, Wayne was not provided with such documents. However, that does not excuse his failure to take steps (when requested) to sign the transmission documentation (necessary for the property to be registered in the executors' names); nor does his ongoing dispute with his brothers (or feelings of intimidation by his brothers) excuse a failure to take appropriate steps to maintain the Epping Property (for which the estate would ordinarily be liable to reimburse him as executor) or to realise the asset for the benefit of the residuary beneficiaries (of which he is one). In saying this, I accept that his co-executor also had a duty in this regard - but the difficulty seems to have been that Wayne's co-operation was required and was evidently not forthcoming.
Wayne's subsequent conduct (in particular, his refusal to vacate the Epping Property even in the face of an undertaking to do so and then a court order to that effect), albeit that this was after he had been removed as an executor, has further delayed the sale of the Epping Property and the realisation of that asset for the benefit of the estate. However, once he was no longer the executor, it is difficult to characterise that conduct as being a breach of his duties as executor and hence the damages order will not extend to this period of time.
In the circumstances, I accept that the loss of rent for the Epping Property over the period from the date of the deceased's death to the date on which Wayne was removed as executor represents the loss sustained by the estate as a result of the breach by Wayne of his duties as an executor (just as his ongoing occupation of the Epping Property without payment of any occupation fee or rent amounts to an advantage obtained by him arising out of his position as executor).
As to the quantification of that loss, to the extent that Wayne submits that the property was "unrentable", I do not accept that the evidence establishes that this was necessarily the case at least over the whole of his period of occupation. At best, the communications from the real estate agents on which Wayne relies demonstrate that there may have been steps required to be taken in order to put the Epping Property into a lettable condition. However, there is no basis to think that this could not have been done within a reasonably prompt time frame or at a reasonable cost (and it is Wayne's own conduct that has prevented that occurring). That said, I accept that the expert valuation evidence of Ms Marshall must be read in light of the fact that Ms Marshall was not able to inspect the interior of the Epping Property and that she candidly accepted that she simply made assumptions as to the condition of the interior of the property (namely, that it would be commensurate with the exterior). That suggests that some discount from the assessed market rent would be appropriate. However, it does not suggest that no rent or occupation fee at all should be recoverable.
As to the contention by Wayne that he should not pay rent because he did not have exclusive possession of the Epping Property (by reason of the fact that some of his brothers' possessions remained on the property), while the right of exclusive possession is a fundamental indicium of a lease, it is by no means inconsistent with a tenancy arrangement that the tenant might not have exclusive possession of the whole of the leased property (say, for example, if a tenant rented a property with a particular storage cupboard or room excluded expressly from the lease, this would not invalidate the lease or tenancy arrangement). Nor do I accept that one would necessarily adopt an exercise of calculating the rent pro rata by reference to the areas of the property (if any) over which Wayne had occupation. Furthermore, there is only Wayne's assertion that any rooms were kept locked during his occupation of the Epping Property (Mark, for example, denied this).
As to the contention by Wayne that he did not prevent access by his brothers or by Ms Maddrell to the Epping Property, again that is no more than his assertion but, even if correct, it would not mean that Wayne should not be required to pay an occupation fee for the time that (while he was an executor) he occupied the Epping Property (and during which time he effectively prevented any sale with vacant possession taking place). I do not consider that Wayne can rely on the proposed agreement with the beneficiaries that they would purchase the Epping Property to resist the payment of an occupation fee by way of damages, for the reason that there was no binding agreement and that he was on notice that an occupation fee would be sought from him if he remained in possession.
As to the quantum of rent or occupation fee, I note that the beneficiaries had taken the position at one stage that $400 rent per week would be acceptable to them (and Wayne was on notice of this). In those circumstances, I consider that the damages recoverable to the estate for lost rental or occupation fees would properly be calculated at $400 per week for the period from the date of the deceased's death to the date on which Mr Hartmann was appointed as administrator of the estate (12 December 2019). Thereafter, while a claim for mesne profits would otherwise have been maintainable (but for the conclusion that I have reached on the mesne profits claim) up to the date on which Wayne was evicted, I am not satisfied that the loss of rental for the whole of that period is consequential on the breach of executorial duties so as to support a damages claim for that period. As the $400 per week involves a substantial discount from the amount assessed by Ms Marshall by way of market rental, this more than accommodates the uncertainty as to the actual condition of the interior of the property and the possibility that there would have been some cost involved in putting the property in a position where any higher rental could have been achieved during that period).
As to the claim for utilities (water rates and electricity), I consider that Wayne is liable for those for the period from the date of the deceased's death to the date of appointment of the administrator (as part of the loss to the estate by reason of the inability to realise the asset comprised by the property or otherwise to lease the property at a market rent).
I do not consider that Wayne should bear the cost of Council rates or interest on the mortgage on top of the damages for loss of rental since it seems to me that this would involve an element of double counting. On the assumption that the property had been rented over that period, the estate would have borne those costs (and although the estate asset was not able to be realised over that period, this is here being compensated for by the award of damages in the form attributable to lost rental or occupation fees). I consider that the same applies to the claim for insurance premiums, which is a cost recoverable out of the estate but I do not accept should be payable by Wayne.
Finally, as to the claims for the administrators' costs in general, I accept that this is a cost for which the estate would not have been liable had it not been for Wayne's breach of his duties as executor (which necessitated the appointment of the administrator); nor would there have been a cost for the interest on the Westpac loan to cover storage amounts had his goods been removed. Those costs should be payable by Wayne. There have already been orders for the costs of the Probate Proceeding and I agree that the sum certified as payable in respect of those costs should be paid out of Wayne's share of the residuary estate. Similarly, the administrators' costs of the present proceeding (though not costs relating to administrative tasks that would have been required in any event) should be borne out of Wayne's share of the estate. I do not accept that the criticisms made by Wayne of the bringing of the claim can be maintained (not least in circumstances where the principal claim has already been determined against him; and I am here dealing only with issues of damages and costs).
I am not persuaded that the costs claimed in relation to Ms Maddrell's time in attending to issues in relation to the Epping Property are recoverable against Wayne (as opposed to reimbursement of actual expenditure by her, which I consider is recoverable by her but should be borne by the estate, not by Wayne). First, there is no evidence of any obligation as such on the part of the estate to meet such costs (apart from the evidence that the administrator appointed her as his agent in relation to access to the Epping Property for the purpose of collection of Wayne's personal property). Second, the costs of maintenance of the Epping Property for sale would have had to have been incurred in any event (since the evidence suggests that the Epping Property required upkeep at or around the time of the deceased's death and it would have been necessary to clean it up in readiness for a sale even had Wayne co-operated in the process). Third, the quantum seems to me to be little more than an estimate.
On my rough calculations (based, where applicable, on the figures set out in the schedule to the plaintiffs' memorandum and otherwise in accordance with Mr Hartmann's affidavit sworn 24 March 2021), the result of the above findings would be as follows: 1. damages by way of loss of rent or occupation fees from the date of the deceased's death (20 April 2016) to the date of Mr Hartmann's appointment as administrator (12 December 2019) at $400 per week ($76,060); 2. utilities (water rates, including interest, and electricity) for the period of Wayne's occupation up to the date of appointment of the administrator, by way of damages for his breach of executorial duties (those amounts to be quantified by the administrator); 3. independent administrator's costs and disbursements (there was a difference from the figure of $28,765 in the plaintiffs' memorandum and the total of $38,907 + $4,214.17 (i.e., $43.121.17) at [92] of the written submissions and referred to at T 97.31-4; the latter figure is what appears in Mr Hartmann's affidavit sworn 24 March 2021 and I would accept that as reasonable). 4. interest on the loan from Westpac ($3,000); 5. interest pursuant to s 100 of the Civil Procedure Act on the above amounts.
I well understand that the effect of those orders (particularly when coupled with costs) means that Wayne may be likely to receive little out of the residuary estate once those amounts are deducted from his share of the residuary estate. Unfortunate as that is, it is a direct consequence of Wayne's obstruction of the administration of the deceased's estate and his failure to carry out his executorial duties. While in his submissions, he characterises this as reward for the criminal conduct of his brother(s) in relation to the alleged theft of the Codicil, therein lies the difficulty that has bedevilled the proceedings to date - there is no evidence, simply Wayne's assertions, in that regard; and Wayne did not exercise the liberty granted to him quite some time ago by Lindsay J (and which has now lapsed) to make an application in that regard. The fact that no judicial officer has ruled on this issue (another of Wayne's complaints) is a result of the fact that it has never properly been put before any Court so far as I can see. Therefore, fervent as Wayne is in his belief that an injustice has been occasioned to him, it does not alter the fact that he has persistently obstructed the administration of the estate, in breach of his duties when he was an executor and thereafter by refusing to comply with the administrator's requests in relation to the realisation of the Epping Property. His duty as an executor was not to delay the administration of the estate for a lengthy period on the basis of a belief that there was in existence somewhere a stolen Codicil (in his favour).
For completeness, I add that, while I consider that a claim in unjust enrichment would (on the facts before me) have arisen, I am not satisfied that it was pleaded as such. A claim for restitution for unjust enrichment would require a proper pleading of, among other things, the vitiating factor making it unconscionable for Wayne to retain the benefit in question (see the discussion in Salib v Gakas [2010] NSWSC 505).
Deane J in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221; (1987) 69 ALR 577 emphasised (at [14]) that to identify the basis of such actions as restitution was "not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate". See also the well-known discussion on this issue in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-9; (1992) 109 ALR 57 at 74 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209 at [150]-[151] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. In Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412, Gummow, Hayne, Crennan and Kiefel JJ (at [80]) stated that: … where one party (in this case, Builders) seeks recompense from another (here the Lumbers) for some service done or benefit conferred by the first party for or on the other, the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery… (my emphasis)
There is no pleading of any such vitiating factor in the present case. While I consider it unarguable that Wayne has indeed obtained the benefit of occupation of the Epping Property at the expense of the estate, I therefore base the relief here granted on the breaches of executorial duties and consequential loss to the estate.

[18]

Costs

As to costs, in the ordinary course they would follow the event and Wayne would be liable for those costs (and it would be appropriate for them to be paid out of his share of the residuary estate). The plaintiffs have claimed those costs on an indemnity basis and have sought a gross sum costs order.
As to the claim for indemnity costs, the principles applicable to an award of indemnity costs based on unreasonable conduct of litigation are well known. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397, Woodward J stated (at 400) that the Court's discretion in the award of costs is absolute and unfettered but must be exercised judicially. In Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225, Sheppard J explained that the circumstances of the case must be such as to warrant the court in departing from ordinary practice in the award of costs. His Honour said (at 233): … it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra); the making of allegations which ought never to have been made … [Citations omitted.]
In the present case, while I accept that Wayne was in a vulnerable economic position (and on his submissions he has experienced physical and mental ill-health), he was put on notice time and again of his responsibilities as an executor; offers of assistance in that regard were made (including to have a support person attend to assist him to read when he claimed to be unable to do so); and he chose not to avail himself of those offers or to co-operate in the orderly administration of the estate. Moreover, he was on notice of the claim for rent or an occupation fee if he remained in occupation of the Epping Property and he did not comply with requests to vacate the Epping Property (nor indeed did he honour his undertaking to the Court to do so), making it necessary for the estate to incur the costs of obtaining vacant possession (including resisting the various interlocutory applications made to restrain the sale). Wayne's conduct has been deliberate (albeit that he says in effect that he had no choice due to external factors such as the current pandemic and his financial situation) and it has clearly been at the expense of the estate.
I consider that Wayne's wilful disregard of his obligations amounts to conduct that warrants an indemnity costs order.
As to the claim for a gross sum costs order, the Court's power to order costs is governed, relevantly, by s 98(4) of the Civil Procedure Act. In Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 (Harrison v Schipp), Giles JA explained at [22] that specification of a gross sum is not the result of a process of taxation or costs assessment. Indeed, the gross sum can only be fixed by applying a much broader brush than would be applied on taxation; accordingly, the approach taken to estimate costs must be logical, fair and reasonable, and the power should only be exercised when the court considers that it can do so fairly between the parties. Harrison v Schipp was applied in Hamod v State of New South Wales [2011] NSWCA 375, where Beazley JA (as Her Excellency then was) found (at [816]) that "the factors that merit particular consideration [in awarding a specified gross sum] include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability".
In circumstances where the estate has incurred ongoing costs in numerous interlocutory applications and where there is likely to be ongoing cost and expense (disproportionate to the amount in the estate) of a costs assessment process and where it is in Wayne's interests to minimise the costs incurred in finalising his distribution out of the deceased's estate, I consider that it is appropriate to order costs on a gross sum basis. This should enable the administration of the estate to be finalised without additional undue delay and cost. In that regard, however, I note that it is accepted that a discount would ordinarily be applied to reflect the contingencies of a costs assessment. On a broad brush basis, therefore, to the actual costs incurred (see Mr Sidaway's costs affidavit of 25 March 2021), I would apply a discount of 15% to the claimed solicitor/client costs of the proceedings (payable on the indemnity basis) and fix costs on a gross sum basis at $110,182.29 to be payable out of Wayne's share of the residuary estate.

Richardson v Richardson

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