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[2026] ACTCA 1
respondent. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal: [67].
The Court of Appeal held that earlier litigation had not settled whether the estate could pay Ross’s legacy once the cheques were put aside. Nor was the executor barred from raising that issue later, because the earlier proceedings included a family provision claim and the estate’s future financial position was uncertain. The executor’s answer to a broad question in cross-examination did not establish that she was unfit to remain executor. The appeal was dismissed, and Ross was ordered to pay the respondent’s appeal costs.
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2,334 words · generated 07/10/2026
Ross v Gordon [2026] ACTCA 1 is an appeal about the administration of Olga Hart’s estate and whether Donna Gordon should be removed as its executor. The Court of Appeal described the appeal as “of relatively narrow compass” because the relevant background had already been considered in earlier proceedings between the parties: [1].
3 cited instruments linked from this judgment.
Before her death, Hart established the Olga Hart Trust and wrote three cheques to it totalling $1,200,500. The cheques were not presented before her death and were dishonoured after presentation. Earlier litigation addressed whether those cheques created a liability that reduced or exhausted the estate’s assets: [9]. The Supreme Court initially found that they did. On appeal, the Court of Appeal held that they did not create a liability in the estate because there was no consideration for them: [9].
Ross had also brought a family provision claim under the Family Provision Act 1969 (ACT). After the matter was remitted, that claim was not pressed: [9], [56]. A later appeal dealt with the scope of the remittal and costs. The present proceeding was a separate application commenced in February 2024.
Ross sought Gordon’s removal under s 32 of the Administration and Probate Act 1929 (ACT), and initially sought appointment of himself and a lawyer as administrators. At the hearing, he pressed only for appointment of the lawyer: [3]–[4]. Ross relied on his $200,000 legacy under cl 20 of the will. The will also provided for a $100,000 legacy to Warren Law, specific gifts to Hart’s grandchildren, and the residue to Gordon: [12].
Gordon’s position was that the specific gifts took priority over the cash legacies and left insufficient funds to pay the general legacies. Ross did not dispute the general abatement principles, but argued that Gordon was barred from relying on them by issue estoppel or Anshun estoppel. He also argued that her conduct showed she was unfit to remain executor: [13]–[15].
The primary judge dismissed Ross’s removal application. On appeal, Ross challenged the treatment of issue estoppel, Anshun estoppel, and Gordon’s evidence in cross-examination. The Court of Appeal dismissed all grounds and ordered Ross to pay Gordon’s appeal costs: [67].
The Court considered the appeal in three groups of grounds. Grounds 1 and 2 concerned issue estoppel; grounds 3 and 4 concerned Anshun estoppel; grounds 5 and 6 concerned Gordon’s cross-examination and fitness as executor: [20]–[21], [38], [59]–[61].
On issue estoppel, the Court adopted the principle that an earlier judgment estops parties only from reopening matters necessarily established as the foundation or justification for that decision. It cited the explanation in Blair v Curran and the requirement that the issue be identical: [32]–[34]. It was not enough that the earlier proceeding had touched on a related subject.
The earlier finding that the estate lacked capacity to pay Ross’s legacy depended on the conclusion that the cheques created a liability that subsumed the estate’s other value. The Court found that the earlier court had “no cause to go on and consider” whether the estate could fund the general legacies apart from the cheques: [30]. The issue of capacity was therefore not necessarily decided in the sense required for issue estoppel: [31], [36].
The Court also noted that the parties had the will and the inventory, but neither had raised the estate’s capacity to pay the general legacies by pleading or direct evidence in the earlier proceeding: [35]. That omission did not itself create issue estoppel. The Court observed that the result might have been different if the estate’s capacity apart from the cheques had been fundamental to the earlier decisions about the cheques: [36].
For Anshun estoppel, the Court contrasted the case with Port of Melbourne Authority v Anshun Pty Ltd. In Anshun, the indemnity later relied upon would, if raised in the first proceeding, have obviated an inquiry into contribution. The Court described that close connection as central to the result: [44]–[48]. Here, Ross’s earlier case included several causes of action, importantly a family provision claim. The lack of funds to pay a general legacy would not have been a complete answer to that claim, because a successful claim could have altered the will’s distribution: [49].
The circumstances also made the estate’s eventual capacity uncertain. Legal costs could continue to reduce the assets available for distribution, and the specific gifts could potentially fail if the relevant conditions were not met: [41], [50]. The Court considered that those future matters could not be ascertained at the earlier hearing. It was therefore not unreasonable for Gordon to defer relying on the estate’s incapacity to pay the general legacies: [50].
The Court also rejected the idea that Ross could simply rely on Gordon’s failure to raise the point in the earlier proceeding. A family provision claim required the court to decide whether the provision made for Ross was inadequate. The Court said both parties had responsibility to put relevant matters before the court if it were determining that claim: [52]–[55]. In any event, the family provision claim was abandoned, and the remittal did not require either party to ventilate the capacity issue: [56]–[57].
Finally, the cross-examination issue did not establish unfitness. Ross asked Gordon whether, if the cheques were unenforceable, there would be “no impediment on the estate making its bequests”. She answered, “Correct”: [59]. The Court considered the question broad and ambiguous, and concluded that the answer could not be said to be incorrect: [62]. Even assuming the question invited Gordon to identify every other obstacle to payment, her failure to do so did not establish that she was unfit to act as executor: [63], [66].
The judgment applied established doctrines rather than announcing a new general test. For issue estoppel, it relied on the long-standing distinction between a cause of action and a discrete issue necessarily determined in earlier litigation. The prior judgment must have necessarily established the relevant issue as a foundation for its result, and the issue must be identical: [32]–[34].
The Court’s contribution is its application of that principle to successive estate proceedings. A prior conclusion that an estate had no net assets because of an alleged liability did not, on these facts, determine whether the estate could pay a legacy after that liability was rejected or disregarded. The relevant question was what the earlier court had to decide, not merely whether the estate’s assets or capacity had appeared in the earlier litigation: [30]–[36].
For Anshun estoppel, the Court applied the established focus on whether it was unreasonable to leave a closely connected matter unraised in earlier proceedings. It drew on Anshun’s concern with avoiding unnecessary later litigation, increased costs and conflicting judgments: [46]–[48]. It also referred to the assessment as a value judgment about proper litigation conduct: [54].
The result illustrates that the inquiry is sensitive to the shape of the earlier proceeding and what could realistically have been determined then. A separate claim for family provision could affect the distribution of the estate, while future costs and the possibility of specific gifts failing made the eventual pool of assets uncertain: [49]–[50]. The Court also treated the abandoned family provision claim as relevant to whether the parties had been required to litigate capacity in the earlier proceeding: [56]–[57].
On removal of a trustee or executor, the Court relied on Miller v Cameron and the later NSW Court of Appeal discussion in Mir v Mir. It reiterated that removal requires circumstances that justify exercising the power, and that not every mistake or misconduct warrants removal: [64]–[65]. It did not decide a new statutory test under s 32. Rather, it concluded that the evidence relied on in this case did not demonstrate unfitness: [66].
At [32], the Court quoted the proposition that issue estoppel covers matters “which the prior judgment ... necessarily established as the legal foundation or justification of its conclusion”. In plain English, a party cannot reopen a point that had to be decided to reach the earlier result. A point that was merely present in the background, or could have been addressed, is not automatically estopped.
At [34], the Court quoted the requirement that the issue “must have been [identical] in each case”. This makes the comparison specific. It is not enough that both proceedings involve the same estate or the same will. The question must match the issue actually determined earlier.
At [36], the Court said there was “no basis in law” for treating the failure to raise capacity as creating issue estoppel. It added that the outcome might have differed had capacity apart from the cheques been a fundamental component of the earlier decisions. This explains why the historical finding about the cheques did not settle the later dispute about abatement.
At [50], the Court relied on the uncertainty of future legal costs and whether specific gifts would fail. In practical terms, the assets available to meet general legacies were not a fixed figure at the earlier hearing. That uncertainty mattered to whether it was unreasonable not to plead the capacity point then.
At [55], the Court said it was as much Ross’s responsibility as Gordon’s to raise relevant matters if the family provision claim were to be determined. The Court was rejecting a view of the earlier litigation in which the executor alone had to identify every possible fact affecting the adequacy of the provision in the will.
At [62]–[63], the Court treated the cross-examination question as too general to establish that Gordon’s answer was wrong. It then went further: even on Ross’s interpretation, the failure to elaborate did not demonstrate a lack of fitness. The reasoning distinguishes an answer that may be incomplete in context from conduct serious enough to justify removal.
The judgment is relevant to disputes where a party argues that an earlier judgment has already determined an issue affecting an estate. It indicates that the analysis will focus on the precise issue necessary to the earlier result. If the earlier decision depended on one asserted liability, it may not have decided the estate’s capacity to pay a legacy on a different basis: [30]–[36].
It is also relevant where a later proceeding raises an issue that could have been raised in earlier litigation. The decision shows that the fact an issue was available, or related to the earlier case, does not by itself establish Anshun estoppel. The relationship between the issue and the earlier claims, the possibility that those claims could change the outcome, and the reasonableness of raising the issue at the time all mattered here: [49]–[55].
The estate context was significant. Future legal expenses could change the available assets, and gifts subject to conditions might fail. Where the estate’s eventual financial position is affected by future events, the timing and practical ability to plead a capacity issue may be relevant: [50].
The judgment also bears on applications to remove an executor where the complaint relies on a passage of evidence or an alleged failure to explain a position. The Court considered the actual wording and context of the question, and assessed whether the response demonstrated unfitness, rather than treating an alleged inconsistency as sufficient by itself: [59]–[66].
These are features of the Court’s reasoning in this case, not a checklist that guarantees the same result in another matter. The judgment’s conclusions depend on the earlier pleadings and decisions, the abandoned family provision claim, the will, the estate’s assets and liabilities, and the particular cross-examination exchange.
The supplied judgment is dated 5 February 2026. It does not provide any later judicial treatment of Ross v Gordon [2026] ACTCA 1, so the subsequent status of this decision cannot be determined from the material provided.
The Court itself discussed earlier authorities. It explained the issue estoppel principles from Blair v Curran, referred to Attorney-General (ACT) v Eastman, Hoysted v Federal Commissioner of Taxation and Ramsay v Pigram, and applied them to the previous estate proceedings: [29]–[36]. It considered Anshun and distinguished the factual setting, particularly the role of the family provision claim and the uncertainty of future events: [44]–[50].
On Anshun estoppel, it also cited Re Golding on the general need to raise grounds in an earlier proceeding absent exceptional circumstances, and referred to Champerslife and UBS AG v Tyne on the evaluative nature of the inquiry: [50], [54]. On removal of a trustee, it cited Miller v Cameron and referred to Mir v Mir, whose formulation it quoted with approval: [64]–[65]. Those cases are authorities considered within this judgment, not later treatments of Ross v Gordon.
The judgment does not decide how the executor’s position would be assessed if the estate’s capacity to pay a legacy had been expressly pleaded, directly litigated, and necessary to an earlier judgment. It says that the result on issue estoppel might have been different if capacity apart from the cheques had been a fundamental component of the earlier decision: [36].
Nor does it provide a general answer for cases where a family provision claim remains live and the estate’s capacity is a central issue in determining adequate provision. Here, the claim was abandoned, and the Court relied on that procedural history when considering whether either party needed to ventilate capacity: [56]–[57].
The reasons do not determine the amount ultimately payable to Ross or Law, or conclusively set out the estate’s final distributable position. The Court’s task was to decide the appeal from the refusal to remove Gordon, and its dispositive order was dismissal with costs: [66]–[67].
Finally, the judgment does not make a comprehensive assessment of every aspect of Gordon’s administration. Its conclusion about fitness addressed the matters raised on appeal, including the cross-examination exchange and the arguments about unpaid legacies and estoppel: [10], [59]–[66].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Ross v Gordon Citation: [2026] ACTCA 1 Hearing Date: 31 July 2025 Decision Date: 5 February 2026 Before: McCallum CJ, Baker J, Muller AJ Decision: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs of the appeal.
Catchwords: APPEAL – WILLS, PROBATE AND ADMINISTRATION – Appeal of dismissal of application to remove executor of estate – whether response to cross-examination by executor demonstrative of lack of fitness – generality of question put in cross-examination – appeal dismissed ESTOPPEL – ISSUE ESTOPPEL – Appeal of dismissal of claim that executor estopped from relying on lack of funds to pay legacy – whether prior proceedings determined estate’s capacity to pay legacy –– no identical issue determined – appeal dismissed ESTOPPEL – ANSHUN ESTOPPEL – Appeal of dismissal of finding that executor’s failure to plead lack of funds not unreasonable – comparison with facts in Anshun – abandoned family provision claim – uncertainty of legal costs and potential of specific bequests to fail – responsibility of both parties to raise issue – failure to plead not unreasonable – appeal dismissed Legislation Cited: Administration and Probate Act 1929 (ACT), s 32 Cheques Act 1986 (Cth) Court Procedures Rules 2006 (ACT), r 1606(6) Family Provision Act 1969 (ACT) Cases Cited: Attorney-General (ACT) v Eastman [2008] ACTCA 6; 2 ACTLR 163 Blair v Curran (1939) 62 CLR 464 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 Miller v Cameron (1936) 54 CLR 572 Mir v Mir [2025] NSWCA 154 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Ramsay v Pigram (1968) 118 CLR 271 Re Golding [2020] HCA 38; 94 ALJR 1014 Ross v Gordon [2021] ACTSC 41 Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 Ross v Gordon (No 2) [2023] ACTCA 40 Ross v Gordon (No 3) [2022] ACTSC 289 Singer v Berghouse (1994) 181 CLR 201 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Parties: James Young Ross (Plaintiff) Donna Maree Gordon as executor of the estate of Olga Hart (Respondent) Representation: Counsel T Crispin (Appellant) W Sharwood (Respondent) Solicitors Ray Swift Moutrage & Associates (Appellant) Dingwall & Co Solicitors (Respondent) File Number: ACTCA 17 of 2024 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 23 May 2024 Case Title: Ross v Gordon Citation: [2024] ACTSC 158 THE COURT: Introduction
This appeal is of relatively narrow compass, the factual substratum having already provided the basis for appeals to this Court in: (a) Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 (Ross v Gordon (CA)); and (b) Ross v Gordon (No 2) [2023] ACTCA 40.
Following the second of those appeals, the appellant commenced this fresh proceeding by way of originating application dated 20 February 2024.
In the originating application, James Young Ross, the appellant, sought the following orders: (a) Order pursuant to s 32 of the Administration and Probate Act 1929 (ACT) for the removal of the defendant as executor of the estate of Olga Hart. (b) Order pursuant to s 32 of the Administration and Probate Act 1929 (ACT) for James Young Ross, and Kenneth Edwin Hubert of Capon & Hubert Lawyers & Mediators to be appointed as administrators of the estate of Olga Hart. (c) That the administrators administer the estate in accordance with the last will of the late Olga Hart. (d) That the estate pay interests on the unpaid bequests. (e) That the defendant pay the plaintiff's costs of the proceedings.
In respect of proposed order 2, at hearing before the primary judge, the appellant pressed only for the appointment of Mr Hubert, and not himself, as executor.
The primary judge dismissed the application and ordered the appellant to pay the respondent’s costs. The appellant has appealed from that decision.
By application in proceeding dated 2 August 2024 the appellant sought leave to appeal. The need for leave arose as a result of an irregularity, whereby the order appealed from had not been entered at the time the notice of appeal was filed. The respondent did not oppose leave, which was granted at the hearing of the appeal, under r 1606(6) of the Court Procedures Rules 2006 (ACT).
The parties to the appeal are: (a) James Young Ross (the appellant): plaintiff below as claimant against the estate. (b) Donna Maree Gordon (the respondent): defendant below in her capacity as executor of the estate of the late Olga Hart.
In these reasons, Mr Ross will be referred to as the appellant and Ms Gordon as the respondent. The deceased’s estate will be referred to as the estate. The late Olga Hart will be referred to as the deceased.
Facts
The present appeal follows a series of claims commenced by the appellant seeking money from the deceased’s estate. The factual background to the proceedings is set out by Mossop J at [4]-[9]: 4. The present application follows a series of claims commenced by the plaintiff seeking money from Olga Hart’s estate. The factual background to the proceedings, as described by the Court of Appeal in Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 is as follows (at [1]-[2]): Prior to her death, the deceased, Olga Hart, established the Olga Hart Trust. She wrote three cheques totalling $1,200,500 to the Olga Hart Trust. The amount of the cheques was greater than the likely value of the deceased’s estate. Those cheques were not presented prior to her death. The purpose of her adopting this course was to create a liability for her estate after her death in order to prevent the appellant, James Ross, from making a claim against her estate for more than the amount which she was prepared to leave to him. After her death, the cheques were presented and dishonoured by the bank. As the deceased had feared, the appellant made a claim for family provision under the Family Provision Act 1969 (ACT). He also made various challenges to the arrangement that the deceased put in place. Those challenges focused upon the obligations of the executor and the daughter of the deceased, Donna Gordon, who was also one of the beneficiaries of the Olga Hart Trust. A judge of the Supreme Court (the primary judge) [Loukas-Karlsson J] rejected each of the challenges to the arrangement made by the deceased: Ross v Gordon [2021] ACTSC 41 (Reasons). She therefore found that, because of the liability on the cheques, the estate had no net assets and hence the appellant’s claim for family provision was futile. Nevertheless, she undertook a contingent assessment of the claim for family provision and would have dismissed it. 5. Mr Ross appealed to the Court of Appeal, which found that the cheques did not create a liability in the estate because there was no consideration for them. It remitted the proceedings to the primary judge because Mr Ross indicated an intention to re-agitate the family provision claim in light of a claimed increase in the value of the residential property that was the principal asset of the estate. 6. However, when the matter came back before the primary judge, counsel for Mr Ross indicated that the family provision claim was not pressed: Ross v Gordon (No 3) [2022] ACTSC 289 at [10]. Notwithstanding the limited terms of the remittal, counsel for Mr Ross submitted that the court ought to make a declaration as to the inability of the estate to treat the cheques as giving rise to any liability. The primary judge determined that she did not have jurisdiction to address that relief, given the terms of the remittal. 7. The Court of Appeal had ordered that the costs of the appeal would form part of the costs of the proceedings in the Supreme Court. The primary judge ordered that Mr Ross pay the defendants’ costs of the appeal. 8. Mr Ross then appealed to the Court of Appeal again: Ross v Gordon (No 2) [2023] ACTCA 40. He contended that the primary judge had erred in finding that her jurisdiction upon remittal was limited to consideration of Mr Ross’ family provision claim. He also contended that the primary judge had erred in dealing with costs in the way that she did. 9. The ground of appeal relating to the scope of the Court of Appeal’s remittal order was dismissed. The appeal in relation to costs was allowed and the Court of Appeal re-exercised the costs discretion and made orders that each party was to pay their own costs of the Supreme Court proceedings and each of the two appeals to the Court of Appeal. Decision of primary judge
The will
The portions of the will relevant to this proceeding were extracted by the primary judge in Ross v Gordon at [10]: The parts of the will relevant to the present application are those relating to specific gifts and the residue of the estate. Specific Gifts 14. I GIVE AND DEVISE to my grandson WILL IAN GORDON and my granddaughter GRACE ASHLEY GORDON my residence at 28 Percy Crescent, Chapman ACT in equal shares upon the younger of them attaining the age of twenty-one years BUT if one of them has already died or does not survive me or dies before attaining the age of twenty-one years or before attaining a vested interest and leaves no children, the survivor of my grandchildren shall, upon attaining the age of twenty-one years, take the share which their sibling would otherwise have taken. 15. I GIVE to my grandson WILL IAN GORDON my Antique Rifle upon his attaining the age of eighteen years. 16. I GIVE to my grandson WILL IAN GORDON one of my two collectible original One Dollar AUD coins upon him attaining the age of eighteen years. 17. I GIVE to my granddaughter GRACE ASHLEY GORDON my white BMW hatchback car upon her attaining the age of eighteen years. 18. I GIVE [to] my granddaughter GRACE ASHLEY GORDON one of my two collectible original One Dollar AUD coins upon her attaining the age of eighteen years. 19. I GIVE AND BEQUEATH the sum of One Hundred Thousand Dollars ($100,000) to my nephew WARREN JOHN LAW of Harvey Bay, Queensland. 20. I GIVE AND BEQUEATH the sum of Two Hundred Thousand Dollars ($200,000) to my former de facto JAMES YOUNG ROSS of 55 Ross Road, Queanbeyan, NSW. 21. I GIVE my dining table and the lounge suite located in my residence at 28 Percy Crescent, Chapman ACT to my former de facto JAMES YOUNG ROSS of 55 Ross Road, Queanbeyan, NSW. Residue of my estate 22. Contingent upon her surviving me, I give, devise and bequeath the residue of my estate to my beloved daughter DONNA MAREE GORDON BUT if she does not survive me, then to my grandchildren WILL IAN GORDON and GRACE ASHLEY GORDON in equal shares. (Emphasis in original.)
The position of the respondent was that the specific gifts provided for in the will took priority over the amounts identified as payable to the appellant and to Mr Law. The specific gifts were such as to virtually exhaust the funds in the estate. As a consequence, there were insufficient funds to fulfil the general legacies in favour of the appellant and Mr Law, and those legacies abated. Although the appellant did not dispute the general principles concerning abatement of legacies, he contended that the executor was prevented from relying upon that position by virtue of the principles of issue estoppel, or alternatively, Anshun estoppel. The appellant argued the purported reliance upon abatement principles was, in the circumstances, indicative of the executor's unfitness for office.
In addressing the competing contentions, the primary judge considered the asset position of the estate in some detail. His Honour’s reasons were set out in Ross v Gordon from [17]. Following that analysis, the asset position was summarised at [25]: In summary, the assets that remain after disbursement of the other specific gifts are the shares worth $36,767 and personal items worth approximately $1,800. The unpaid liabilities are the legal and mediation fees totalling $137,626.50.
Grounds of appeal
The grounds of appeal are: (a) The learned trial judge fell into error by ruling that whether or not the estate of Olga Hart had sufficient funds to pay its bequest to the plaintiff was not an issue in the proceedings SC 80 of 2019; (b) The learned trial judge fell into error by ruling that the estate of Olga Hart was not prevented from arguing that it could not pay its bequest to the plaintiff by issue estoppel; (c) The learned trial judge fell into error by ruling that whether or not the estate of Olga Hart had sufficient funds to pay its bequest to the plaintiff was not an issue closely intertwined with the proceedings SC 80 of 2019; (d) The learned trial judge fell into error by ruling that the estate of Olga Hart arguing that it did not have sufficient funds to pay its bequest to the plaintiff was not an abuse of process of the sort described in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun); (e) The learned trial judge fell into error by ruling that the estate of Olga Hart was not bound by the evidence of the executor given in cross-examination in proceedings SC 80 of 2019 that there was no impediment on the estate making its bequests; and (f) The learned trial judge fell into error by accepting the evidence of the executor, when that evidence contradicted her earlier evidence in SC 80 of 2019.
The orders sought on the appeal are that: (a) The appeal be upheld; (b) The decision below be set aside; (c) Pursuant to s 32 of the Administration and Probate Act 1929 (ACT), the respondent be removed as executor of the estate of Olga Hart; (d) Pursuant to s 32 of the Administration and Probate Act 1929 (ACT), Kenneth Edwin Hubert of Capon & Hubert Lawyers and Mediators be appointed as administrator of the estate of Olga Hart; (e) The respondent pay the appellant’s costs of this appeal; (f) The respondent pay the appellant’s costs of the proceedings below; and (g) The respondent in her personal capacity pay the costs of the appellant and the estate in this appeal and in the proceedings below.
No notice of contention or cross-appeal was filed.
In addressing the grounds, the Court has applied the same grouping as that adopted by the appellant.
Grounds 1 and 2
Grounds 1 and 2 relate to the issue estoppel argument. The appellant contends that the question of the estate’s capacity to pay the bequest to the appellant that was provided for in the last will of the deceased was an issue in proceedings SC 80 of 2019 and, as a result, the respondent was prevented by issue estoppel from arguing in the proceedings before the primary judge that the estate could not pay the bequest. The appellant submitted the respondent, by failing to pay the bequests, was in breach of her obligations as executor and should be removed. The appellant asserted that the conduct of the respondent in the prior proceedings created barriers for her in the conduct of these proceedings.
The appellant referred to the conclusion of the primary judge in Ross v Gordon at [30] that none of the previous judgments, as a matter of fact, found that there would be funds to allow a payment to the appellant. The appellant then identified a number of references in the earlier judgments, which he contended were inconsistent with the primary judge’s conclusion.
First, dealing with the judgment of Loukas-Karlsson J in Ross v Gordon [2021] ACTSC 41 at [22], the appellant noted that her Honour had identified the following as an issue for determination: Does the Estate, at law, have sufficient assets to make the bequest provided for in the Will? The appellant conceded that when it came to positing an answer to that question, her Honour did so, commencing at [97], by first considering the implications of the Cheques Act 1986 (Cth), and the impact of the creation of the cheques in this case on the capacity of the estate to pay the bequests.
That which follows from Loukas-Karlsson J is premised on her Honour’s conclusion that the deceased was liable to the trust in the sum of $1,200,000 when the cheques were drawn and the deceased took possession of them as trustee. The appellant highlighted the passages appearing in her Honour’s judgment at [155] and [170]. The passage at [150] is perhaps more instructive as to the reasoning that led her Honour to the view that the estate had no capacity to pay the bequest: In my view, the arrangement between the trustee and the deceased is that the Cheques would be held by the trustee during the deceased’s lifetime with the intention that the deceased’s assets would never form part of her estate. It is therefore relevant at this juncture to consider the position in an estate where liabilities exceed assets.
At [44] of his written submissions, the appellant conceded: At no stage of the judgment did her Honour consider whether the estate might be unable to make a payment to the Appellant due to the priority of the bequests to other beneficiaries. This is unsurprising as the suggestion was never put to her.
The appellant also placed reliance on the consideration given by the Court of Appeal to “the contents of the estate” in Ross v Gordon (CA) at [21]. The appellant highlighted the notation of the Court of Appeal that the respondent’s contentions in the Court below them had been focused on “the first issue”, being whether the estate had sufficient assets to make the bequests provided for in the will. The passage that is relied upon states: The respondent’s contentions before the primary judge were focused upon the first issue. This raised whether the cheques were choses in action capable of being held on trust and whether their operation in accordance with the Cheques Act 1986 (Cth) created a liability of the deceased and then her estate.
Grounds 3 and 4
Grounds 3 and 4 relate to the Anshun estoppel argument.
The appellant submitted that the question of the estate’s capacity to pay the bequest made to him in the will was so intertwined with the subject matter of the prior proceedings, that to permit the reliance now sought to be placed by the executor on that lack of capacity would constitute an estoppel of the kind disallowed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun).
The appellant pointed to the element of reasonableness as being at the heart of the test in Anshun. He referred to the primary judge’s consideration of Anshun principles, commencing at [35] of Ross v Gordon, and the four reasons his Honour identified in support of the conclusion that there was no unreasonableness in the executor's failure to plead the capacity issue in the earlier proceedings.
There is merit in setting out those reasons, beginning at [37]: 37. First, it was not a requirement in order to uphold the terms of the will or to address the claims relating to the enforceability of the cheques to make an assessment of, and plead, the extent of funds that might be available to pay the legacy as identified in the will. 38. Second, the claim for family provision, if successful, would have allowed rewriting of the terms of the will in a way that favoured Mr Ross and hence would have avoided the consequences that might otherwise flow from the fact that his legacy was a gift of money not tied to specific property. 39. Third, the amount that would be available for distribution was inevitably going to be influenced by the costs incurred in the proceedings by the executor and any other costs for which the estate was liable. It is that costs liability which has presently reduced the assets of the estate in a way that prevents any payment to Mr Ross. 40. Fourth, the capacity of the estate to pay the legacies was not fixed in time. In addition to the ever-increasing burden of legal fees, which would reduce the capacity of the estate, there was always the potential for a gift to fail as a result of the beneficiary failing to reach the vesting age. Although it was statistically unlikely, there was still a possibility that the gift of the deceased’s residence to her grandchildren would fail if they both failed to reach the vesting age of 21, and this would mean that there were assets within the estate that could satisfy the gift to Mr Ross.
The appellant submitted that the principles of Anshun estoppel are broader in scope than that allowed for in the primary judge’s reasons. He argued that the primary judge had failed to recognise that the appellant’s claims outside of the family provision claim were directly targeted at the executor’s assertion that the estate could not pay its bequest because of the cheques. He asserted that his Honour’s proposition in respect of the impact of legal costs misunderstood the costs position. Finally, the appellant argued that the prospect of one of the specific bequests failing was not a proper basis upon which to conclude that it was reasonable for the executor to fail to bring all of her case.
1 Transcript, 31 July 2025 at p 11 [20]. FPA claim, which was then abandoned. Her Honour therefore entered judgment for the defendants and made consequential costs orders. The subsequent appeal did not disturb her Honour’s decision in respect of the scope of the remittal, but did allow the appeal in a limited fashion only in respect of the costs orders that were made.
The FPA claim having been abandoned, there was no requirement, in view of the scope of the remittal, for the respondent, or indeed the appellant, to ventilate the capacity issue.
No Anshun estoppel arises, and these grounds are not made out.
Grounds 5 and 6
These grounds relate to a short passage of cross-examination of the respondent in the course of the hearing before the primary judge. The exchange is extracted below: MR CRISPIN: This might seem a little redundant, Ms Gordon, but bear with me; I just want to be abundantly clear. It is the case, isn’t it, that you say that virtually all of the liabilities owed by the estate are as the result of these cheques. Is that right? --- Yes And so that if these cheques were to be found not to be an enforceable debt, there would be no impediment on the estate making its bequests, would there? --- Correct.
The primary judge determined that the generality and ambiguity of the question asked of the respondent in cross-examination was such that it could not be said that the answer given was wrong. In any event, his Honour determined that the issue of capacity if the cheques were set aside was not one that was required to be determined in the proceedings: Ross v Gordon at [33].
The appellant contends that the questions put to the respondent should be interpreted as an invitation to the respondent to put forward any reason why the estate would not be able to pay the appellant his bequest. The Court understood the appellant’s submission in the context of these grounds to be that her failure to do so was unreasonable, and demonstrative of her lack of fitness for the office of executor.
Decision
The Court respectfully agrees with the conclusion of the primary judge. The generality of the question was such that the response cannot be said to be incorrect, even assuming an inability to pay the general bequests. Having extracted that very broad concession, the topic was not pursued further.
Even accepting, for the purposes of the argument, that the intended purpose of the question was as characterised by the appellant and, in view of the value of the estate and the operation of the abatement principles, the respondent should be taken to have declined the invitation, the appellant has still failed to demonstrate that the respondent’s declinature was demonstrative of a lack of fitness to fill the office of executor of the estate.
The appellant, in his written submissions, cited a passage from the judgment of Dixon J in Miller v Cameron (1936) 54 CLR 572 (Miller) at 580-581. The continuation of that passage states (at 581): A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised. But in a case where enough appears to authorize the Court to act, the delicate question whether it should act and proceed to remove the trustee is one upon which the decision of a primary Judge is entitled to especial weight.
Recently in Mir v Mir [2025] NSWCA 154, after citing with approval the principles enunciated in Miller, the NSW Court of Appeal observed at [141] (Ward P; Leeming and Payne JJA agreeing at [152] and [158]): … there must be caution in the exercise of the power to remove a trustee; and not every mistake or misconduct will warrant the removal of a trustee. That said, where a trustee has demonstrated a want of honesty, proper capacity to exercise the trustee’s duties, or of reasonable fidelity to the trust with which they have been reposed, this would be a basis on which the court in its supervisory jurisdiction may well decide to remove a trustee. (Citations omitted.)
The appellant has failed to demonstrate that the executor’s removal from office is warranted on the basis of her evidence given in the earlier proceeding or otherwise, and these grounds are therefore not made out.
Orders
I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Ross
Gordon [2026] ACTCA 1
(1939) 62 CLR 464
(1921) 29 CLR 537
(1936) 54 CLR 572
(1981) 147 CLR 589
(1968) 118 CLR 271
(1994) 181 CLR 201
(2007) 73 IPR 460
The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal: [67].
The primary judge identified the contentions raised by the appellant in support of the request for removal of the respondent as executor of the estate on the basis of her lack of fitness for that office, in the following terms: (a) The failure to pay the appellant and Warren John Law in accordance with the last will of the deceased; and (b) The preparedness of the respondent to pay legal costs involved in defending the earlier proceedings out of the estate, in circumstances where the Court of Appeal made no specific provision in that regard.
The appellant relied upon his entitlement to a payment of $200,000 under cl 20 of the will.
The appellant argued that the consequences of there being an absence of funds to meet the general legacies was avoided by application of the principles of either issue estoppel or Anshun estoppel. In essence, the contention of the appellant was that the executor was precluded from relying on the absence of funds to meet the general legacies, because the absence of funds was an issue which was determined in the earlier proceedings, or ought to have been the subject of a defence by the respondent in those earlier proceedings. The primary judge found that claim to be lacking in any merit.
The primary judge’s reasons in respect of issue estoppel were set out at [29]-[34]; his Honour’s reasons in respect of Anshun estoppel were set out at [35]-[40].
The respondent directed attention to the broad claim made by the appellant in the earlier proceeding, of which the capacity issue was only part. She highlighted the observation of the primary judge in Ross v Gordon at [32]: Apart from the liability of the estate arising from the presentation of the cheques, the ultimate capacity of the estate to pay the legacy to Mr Ross was not a matter upon which the court’s decision depended. It was not a necessary foundation of the court’s conclusion that the cheques were ineffective that the estate otherwise had sufficient assets to pay Mr Ross’ entitlement in full or in part. That was simply not an issue in the proceedings.
The respondent also noted that the financial position of the estate in terms of its capacity to meet the bequests in the will was something that was before the Court at first instance, with Loukas-Karlsson J having a copy of the grant of probate that included the will and the inventory of property, as well as other information. As such, it was not appropriate to conclude that there had been a failure to place before the court information concerning the estate's capacity to pay the bequests. Decision
The primary judge relied upon the passage from Blair v Curran (1939) 62 CLR 464 at 531-532 in reaching the determination that there was no issue estoppel in this case.
It is abundantly clear from the passages of the respective judgments cited above that the conclusion reached at first instance by Loukas-Karlsson J, that the estate was without capacity to pay the bequest to the appellant, was a conclusion based entirely on her Honour’s finding that the liability to the trust that was created by the subject cheques subsumed any value otherwise existing in the estate. In those circumstances, the Court had no cause to go on and consider, let alone make any findings as to, the capacity of the estate to meet the general bequests to the appellant and Mr Law.
From a consideration of the earlier decisions there is no basis upon which it may be concluded that the capacity of the estate to otherwise fund the bequest to the appellant was a matter necessarily decided by the prior judgments.
In Attorney-General (ACT) v Eastman [2008] ACTCA 6; 2 ACTLR 163 at [18], in relation to issue estoppel, the Court of Appeal observed: Higgins J is credited with coining the term “issue estoppel” in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 at 561, although his Honour was drawing upon earlier British authorities in defining the concept. Dixon J provided a lucid exposition of issue estoppel in Blair v Curran (1939) 62 CLR 464 at 531-532: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. This formulation has been repeatedly cited and approved; see EI Du Pont de Nemours & Co v Imperial Chemical Industries PLC (2007) 73 IPR 460 at 473 and the cases there cited.
Although Higgins J was in dissent in the High Court in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, the views his Honour expressed in relation to estoppel met with approval in the subsequent appeal to the Privy Council. His Honour’s observations in the High Court included the following: But in the case of what I call "issue-estoppel" it must appear that the precise issue was previously taken. In my opinion, there is nothing to prevent parties from contesting one point only, assuming other points – say, in some trumpery dispute – without forfeiting their right to contest the others for ever, however important the subject of future disputes. … The distinction which I make in the present case is that, on the face of the objections (and therefore of the appeal) in the previous case, the point of joint ownership under the same Act and the same will was directly and specifically taken, and the decision of the point was necessary for the success of the trustees on the appeal.
In Ramsay v Pigram (1968) 118 CLR 271 at 276, Barwick CJ noted that: The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been [identical] in each case. (Emphasis added.)
In this case, for reasons that are not apparent, the precise issue of the estate’s capacity to pay the bequests was not previously taken by either party. Both parties were in possession of the will and of the inventory, documents which on their face demonstrated the very point now at issue. Neither of the parties raised the issue by way of pleading or by way of direct evidence.
Whether the decision of the respondent was forensic or otherwise, there is no basis in law for concluding that the failure to raise the issue of the estate’s lack of capacity to meet the bequest to the appellant regardless of the cheques issued, created an issue estoppel. The outcome may well have been different had the capacity of the estate to otherwise meet the bequest formed a fundamental component of the decision reached by either Court as to the efficacy of the cheques.
These grounds of appeal are not made out.
In summary, the appellant submitted that the primary judge had overlooked the simple fact that the executor: … when litigation had been brought against the estate as to its capacity to pay the bequest, knowing that it could not pay that bequest, nonetheless chose to keep quiet as to that reality through, at that time, six years of litigation. Even once it became clear during the first appeal that the capacity to pay the bequest was now the primary issue in contention. Decision The facts in Anshun
The High Court's consideration of estoppel principles in Anshun arose from an action for personal injury. The plaintiff in the primary proceedings suffered serious injury when he was struck by a load of steel girders being handled by a crane. The crane in question was owned by the Port of Melbourne Authority (the Authority) and hired to Anshun Pty Ltd (Anshun). The plaintiff sued both the Authority and Anshun in negligence. With respect to the estoppel point under consideration, each of the defendants had served notices claiming contribution on the other. When the plaintiff succeeded against both defendants in his negligence action, there was a need to determine the issue of contribution as between defendants. That was determined in a way that saw the Authority bearing 90% of the liability to the plaintiff.
The crane hire agreement between the Authority and Anshun included a contractual indemnity that covered the circumstances of the plaintiff’s injury. In subsequent and separate proceedings, the Authority sought to rely upon the contractual indemnity as against Anshun in respect of the entirety of the Authority’s liability to the plaintiff. Had it been entitled to do so, the effect of the indemnity would have been to completely defeat the claim for contribution brought against it by Anshun.
The High Court accepted that the circumstances did not give rise to an issue estoppel, because the existence or otherwise of the indemnity was not a necessary element in the determination of the contribution claim per se. A critical aspect of the High Court’s determination that an estoppel was nevertheless created was that a reliance placed upon the indemnity in the earlier proceeding would have completely obviated the need for any inquiry into contribution on the notices claiming contribution served by each of the defendants on each other in the earlier proceeding.
In Anshun at 604, Gibbs CJ, Mason and Aickin JJ (constituting the majority of the High Court) observed: Taking into consideration the relevant factors we conclude that the Full Court was right in holding that there was an estoppel. The matter now sought to be raised by the Authority was a defence to Anshun's claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun. The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment.
In a separate judgment also dismissing the appeal, Brennan J highlighted the inconsistency between the prospective judgments in the two proceedings, with the first entitling Anshun to payment by the Authority of an amount on the contribution claim, and the second requiring Anshun to pay that amount to the Authority. His Honour stated at 612: The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them. Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered of the right to the remedy thereby given and of all other rights which arise on the same facts. The facts in the present case
Unlike the situation in Anshun, the appellant’s amended originating application in the earlier proceedings before Loukas-Karlsson J raised a series of separate causes of action including, importantly, an application pursuant to the Family Provision Act 1969 (ACT) (the FPA). The lack of the estate’s capacity to meet the general bequest to the appellant and Mr Law, if the specific bequests were paid, was not a complete answer to the FPA claim. As the primary judge observed at [37]-[38], this was not a situation where it could be said that the issue of the estate’s capacity to pay was so intertwined with the claims made by the appellant as to make it unreasonable not to rely upon the capacity issue in the earlier proceedings. On the contrary, the FPA claim, had it been pursued, may have resulted in further provision out of the estate for the appellant, with the effect that the specific bequests were unable to be made in the terms provided for in the will.
As referred to by the primary judge at [39]-[40], the increasing legal costs to the estate arising from proceedings and the potential for the specific bequests in the deceased’s will to fail both created an uncertainty of future facts. In Re Golding [2020] HCA 38; 94 ALJR 1014 at [10], in dismissing an application for special leave to appeal as an abuse of process, Nettle J observed that a party is generally required to put forth all of the grounds on which they rely in support, “in the absence of exceptional circumstances”. His Honour referred to an example of an exceptional circumstance as one involving “the discovery of facts of which the applicant was not aware and which the applicant could not have ascertained with reasonable diligence at the time of the first application”. In this case, as the quantum of legal costs to be incurred and the occurrence of the specific bequests were unascertainable at the time of hearing, it was not unreasonable for the respondent to defer reliance on its incapacity to pay the general bequests.
In the course of oral submissions before this Court, counsel for the appellant sought to develop the argument that the respondent’s failure to raise the capacity issue in the prior proceedings was something that the appellant was entitled to rely upon as indicative of the fact that the argument was not pursued. Counsel submitted: The fact that we are aware of an asserted position does not change the fact that a defendant is the party who must put forward reasons why relief should not be granted. We are entitled to assume that they have reasons for the choices they make, and that if an argument is not 1 put forward, it has been not put forward for good reason.
However, the determination of the FPA claim necessarily involved the application of the often-cited two-stage test: see Singer v Berghouse (1994) 181 CLR 201 at 209 (Mason CJ, Deane and McHugh JJ). The first limb of the test is whether the provision, if any, made for the appellant was inadequate for his proper maintenance education and advancement in life. The High Court observed, at 210: Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. (Citations omitted.)
The question of adequate provision is thus strictly a question of fact, and each of the parties would, in the context of the FPA claim, have been called upon to place evidence before the court so as to enable it to make a determination of whether the existing provision for the appellant in the will was adequate. It was not a matter where the appellant could sit back and ignore the plain terms of the will and ignore its consequential effect on the provision for the appellant in view of the inventory, on the basis that it had not been raised by the respondent.
In Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3], Allsop P characterised the assessment of whether an Anshun estoppel arises as “a value judgment to be made referable to the proper conduct of modern litigation”; see also UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [69] (Gageler J).
In those circumstances, the Court is not satisfied that it is unreasonable to permit the respondent to now rely upon the plain terms of the will, and the operation of the abatement principles in the administration of the estate, when it was as much the responsibility of the appellant as it was of the respondent to raise those considerations had the court been called upon to determine the FPA claim.
The FPA claim in this case was abandoned by the appellant at the commencement of the hearing before Loukas-Karlsson J on 25 August 2022: see Ross v Gordon (No 3) [2022] ACTSC 289. Her Honour determined that the effect of the second decision of the Court of Appeal was that the matter was remitted to her Honour solely to consider the