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[2026] NSWSC 1091
Supreme Court of NSW
2026-09-10
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Smith v Pallister [2026] NSWSC 1091
Hearing dates: 21 August 2026
Date of orders: 10 September 2026
Decision date: 10 September 2026
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Bennett J
Decision: Orders that:
(1) the Grant of Probate issued by the Court on 20 August 2024 in respect of the estate of the late Kathleen Marie Nancy Patricia Pallister (the deceased) to the defendant be revoked.
(2) ORDER that Letters of Administration with the Will of the deceased dated 6 September 2001 annexed be granted to Glynnis Olwyn Smith and Jo-Anne Marie Pallister (the Administrators).
(3) the plaintiffs’ costs of bringing these proceedings be paid by the defendant personally, on the ordinary basis.
See further orders at [133]
Catchwords: SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal — Whether it is in the interests of the due administration of the deceased’s estate for the defendant to be removed as executor — Where defendant executor did not appear — Where executor residing in estate property beyond expiry of 12-month right of residence — Where communication between executor and beneficiaries infrequent — Whether executor delayed sale of estate property — Whether evidence indicates executor may not intend to sell and distribute estate assets
Legislation Cited: Uniform Civil Procedure Rules 2025 rr 6.3, 10.21, 29.7
Evidence Act 1995 (NSW) s 91
Civil Procedure Act 2005 (NSW) ss 14, 56-59, 98(1)
Supreme Court Rules 1970 (NSW) pt 78 r 48
Cases Cited: Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820
Bates v Messner (1967) 67 SR (NSW) 187
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Farah v Farry [2026] NSWSC 541
Hilton v Legal Profession Admission Board [2017] NSWCA 232
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218
NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681; (2012) 18 BPR 35, 153
Quach v MLC Limited (No 6) [2021] FCA 271
Sandra Elizabeth Lester v Terence Myles Brown [2022] NSWSC 716
State of New South Wales v Stanley [2007] NSWCA 330
Thomas v Alpitt [2023] NSWSC 727
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276
Texts Cited: Supreme Court Practice Note SC Eq 1
Category: Principal judgment
Parties: Glynnis Olwyn Smith (First Plaintiff)
Jo-Anne Marie Pallister (Second Plaintiff)
Peter Mark Pallister (Third Plaintiff)
Gillian Leah Donney (Fourth Plaintiff)
Timothy Jon Pallister (Defendant)
Representation: Counsel:
A Lakeman (Plaintiff)
Solicitors:
Stacks Law Firm (Plaintiffs)
Litigant in person (Defendant) (No appearance)
File Number(s): 2026/00046293
Publication restriction: Nil
These proceedings arise out of a dispute between siblings regarding the administration of the estate of their deceased mother, the late Kathleen Marie Nancy Patricia Pallister (the deceased). The deceased died nearly three years ago on 30 November 2023.
As is usual in proceedings of this nature and without intending any disrespect or overfamiliarity, at times I will refer to the various parties by their first names.
The deceased left a will dated 6 September 2001 (the Will). The Will provided that the defendant and youngest of the five siblings, Timothy Jon Pallister (the defendant or Timothy), be appointed as Executor and Trustee of the deceased’s estate (executor). The primary asset of the estate is the deceased’s principal place of residence, being the Annangrove house (or the property).
Broadly put, the Will provided that the defendant may live in the Annangrove house for 12 months from the date of the deceased’s death (right of residence), after which period the Annangrove house was to form part of the residue of the estate. The estate was to be divided equally between the five children of the deceased.
On 20 August 2024, probate was granted (the Grant) to the defendant.
The four plaintiffs in these proceedings are the other four children of the deceased: Glynnis Olwyn Smith, Jo-Anne Marie Pallister, Peter Mark Pallister and Gillian Leah Donney (together, the plaintiffs). Janet Kathryn Pallister (Jan) is married to Mark (Exhibits P-13, P-14). By Summons filed on 3 February 2026, the plaintiffs seek orders that the Grant be revoked, and that letters of administration be granted to Glynnis and Jo‑Anne, as well as other ancillary relief.
As of the date of the hearing, some 20 months following the expiry of the 12-month period following the deceased’s death, the plaintiffs say the defendant has not vacated or sold the Annangrove house or otherwise taken steps to distribute the estate. It is for this reason, together with other alleged breaches of the defendant’s duties as an executor (executor**’**s duties), that the plaintiffs say that the Grant ought to be revoked.
“I GIVE the following directions to the Trustee concerning my principal place of residence at the date of my death (hereinafter referred to as “the house”) and the furniture and furnishings contained therein:
(a) TIMOTHY JON PALLISTER may live in the house and have use of the furniture and furnishings therein for a period of twelve (12) months from the date of my death, provided he pays all rates and taxes and other outgoings and all premiums for insurance policies effected by the Trustee in respect of the house and contents and keeps it in repair to the satisfaction of the Trustee, having regard to its condition at the date of my death;
(b) upon expiration of a period of twelve (12) months from the date of my death, or on the date that Timothy vacates the house if he vacates earlier than 12 months from the date of my death, the house shall form part of the residue of my estate.”
“I GIVE the whole of my Estate to such of my children TIMOTHY JOHN (sic) PALLISTER, GLYNNIS OLWYN SMITH, PETER MARK PALLISTER, JO-ANNE MARIE PALLISTER and GILLIAN LEAH DONNEY as shall survive me…”.
“I GIVE to my Trustee the following powers:
(a) To invest such of the proceeds of conversion of my trust estate and my ready moneys as may from time to time be available for investment (including unapplied income) in any of the modes of Investment for the time being authorised by the laws for the investment of trust funds.
(b) To apply for the maintenance education or benefit of any minor beneficiary as my Trustee thinks fit the whole or any part of the capital of that part of my estate to which that beneficiary is entitled or may in future be entitled.
(c) To postpone without being responsible for loss the sale calling in and conversion of the whole or any part of my estate for such period as the Trustee may think fit and notwithstanding that it may be of a wasting speculative or hazardous nature.”
The Inventory of Property attached to the Grant provides the following estimated or known values of the estate:
Cash in Banks: $11,453.11 (total);
(a) Two ANZ Bank accounts: $753.11; and (b) Bendigo Bank account: $10,700.00;
Personal effects of value: $8,422.00;
Motor vehicle (Toyota Yaris): $4,000; and
Annangrove house: $3,500,000.00.
The Bendigo Bank account was held in the names of Glynnis and Jo-Anne as trustees for the deceased, as they had jointly been appointed the deceased’s Financial Managers (see [57] and [66] below).
These amounts total $3,523,875.11.
As at 3 February 2026, being the time of the filing of the Summons, the plaintiffs provided the following updated valuations of the estate:
Cash in Banks: $2,435.05;
Monies repayable by the defendant to the estate: $6,042.11;
Motor vehicle (Toyota Yaris): $4,000; and
Annangrove house: $3,525,000.00.
These amounts total $3,537,477.16.
Also provided was a spreadsheet, prepared by Glynnis (TR P6 L38-41), setting out the outstanding estate debts from both before and after the deceased’s death, which appear to total $69,321.28.
These estimates establish that the only real asset of the estate is the value of the Annangrove house.
By way of background, as already stated, the plaintiffs filed the Summons on 3 February 2026. On 17 March 2026 the defendant was served, personally (per Uniform Civil Procedure Rules 2025 (UCPR), r 10.21), with a cover letter from the solicitor for the plaintiffs, a copy of the Summons, and copies of the five affidavits relied on by the plaintiffs in these proceedings (see [54] below). In his Affidavit of Service, the process server stated that he attended the Annangrove house, and that, “I spoke with a male at the address and asked if he was Timothy John Pallister. They confirmed that they were. But Timothy John Pallister refused to accept the documents so I placed them down in close proximity to him and informed him of my actions”.
A copy of an Appearance filed for the defendant was included in the Court Book. The Appearance was signed by the defendant on 22 April 2026 and filed on 23 April 2026.
Also on 22 April 2026, the defendant sent an email to the solicitor for the plaintiff that attached a signed affidavit by him dated 21 April 2026. The covering email stated, “I send to you a copy of my Affidavit as required for the NSW Supreme Court Equity (Probate). As the listed lawyer you are in constant correspondence with your clients and as I don’t have a current email address for them would you mind passing this Affidavit on please”. This email was forwarded to my Associate, tendered in Court during the hearing and marked Exhibit P-12. The email address used by the defendant in that email was [email address]. I observe that this same email address was also used by the defendant in any further email correspondence by him referred to in these reasons, and is also the same email address used by the solicitor for the plaintiffs, and by my Chambers, in contacting the defendant. It is also the email address the defendant listed on his Appearance as his “electronic service address”.
Given the above evidence, at the time of the hearing I was satisfied the defendant was on notice as to the commencement of the proceedings. In coming to this satisfaction, I have had regard to the fact that the defendant was personally served with the Summons, and filed an Appearance and sent an affidavit for these proceedings.
A review of the Court file discloses that on the filing of the Summons a return date of 24 March 2026 was given.
On 24 March 2026 the matter was stood over for further directions on 21 April 2026.
On 21 April 2026, the Registrar recorded there was no appearance by the defendant; stood the matter over for directions on 23 April 2026; and directed the plaintiff to notify the defendant of the time and place of the adjournment and the orders made.
On 23 April 2024 the Registrar stood the matter over for directions before the Registrar on 5 May 2026; noted the defendant was to indicate at the directions hearing whether he sought to file and serve any further evidence; and ordered that costs were reserved.
On 5 May 2025, the Registrar again recorded there was no appearance by the defendant. The matter was listed by the Registrar for hearing before me on 21 August 2026.
On 6 May 2026, the solicitor for the plaintiffs emailed the defendant and advised him that “We confirm that the matter has been listed for hearing on 21 August 2026 at 10am before Justice Bennett. We strongly recommend that you obtain independent legal representation in preparation for, and at, the hearing” (emphasis removed). This email was tendered in Court during the hearing and marked Exhibit P-11. A copy of the orders made on 5 May 2025, which also included the Usual Order for Hearing (per Supreme Court Practice Note SC Eq 1), were attached to that email.
On 27 July 2026, my Associate sent an email to the parties regarding preparation for the hearing, attached to which was a Word document titled “Template Objections Document” that the parties were requested to use when providing their objections to evidence (per the Usual Order for Hearing). The email commenced with, “I refer to the above matter, which has been listed before Justice Bennett for a hearing commencing on Friday, 21 August 2026, on an estimate of 1 day” (emphasis in original). This email was marked in Court during the hearing as JP-1.
On 10 August 2026 at 11:45am, the solicitors for the plaintiffs sent to my Chambers by email an electronic version of the Court Book. The defendant was properly copied into that email.
On 13 August 2026 at 2:54pm the defendant sent an email to my Chambers, without copying in the solicitor for the plaintiffs, in the following terms:
“With my last appearance before the Equity Registrar in April this year I made it perfectly clear that Stacks Lawyers representing my brother (Peter Mark Pallister) and siblings, registered in court documents to Glynnis Olwyn Smith, that a reconciliation conference had never been sought or mentioned by said Stacks Lawyers, Tweed Heads.
They still haven’t gone through the proper procedures as I know it.
This court date is therefore premature and a waste of the Supreme Court of NSW’s time and your honours time as I see it. Proper procedure dictates that all avenues of reconciliation be tried before advancing forward with proceedings.
I supply the objection document for your honour to rule on within this email.
Many of the exhibits within the court book lack veracity and I will point this out when given the opportunity.
With that said I am currently completing a Science Degree based at the University of Tasmania. This takes up a considerable amount of time and effort as I am currently midway through my Second Semester for this year. Assessments and resources are an issue when they clash with competing interests.
I suggest again that Stacks Law firm have gotten ahead of themselves.
Thank you for this consideration.”
A document containing the defendant’s objections was attached to that email. That objections document utilised the format of the Template Objections Document my Associate sent to the parties.
“Dear Parties and Practitioners,
To Mr Pallister: I confirm receipt of your objections document. I note when approaching Chambers, it is proper to always copy in the other parties, and have attached the practitioners of the plaintiff to this response.
To all parties: I note the Orders made by the Registrar in Equity on 5 May 2026, which listed the hearing before Justice Bennett on 21 August 2026. Those orders relevantly included the following:
ORDERS/DIRECTIONS
1. Listed for hearing on 21 August 2026 at 10.00am before Justice Bennett with an estimate of 1 day.
2. Note the Defendant did not appear today.
…
ANNEXURE B – (Supreme Court Practice Note SC EQ1) DIRECTION REGARDING TRIAL ESTIMATES
1. It is noted that the matter has been set down for hearing on an estimate for trial of 1 days.
2. The legal representatives must monitor the estimate for trial.
3. If the estimate for trial changes, the legal representatives must notify the Trial Judge within 48 hours of becoming aware of that change.
Could the parties please confirm, given the engagement of the defendant, if there is any change to the estimate of the hearing.
Further, if there is any other application to be made in relation to the hearing date, could the parties please make that application by copying in all parties.
Her Honour notes it is appropriate for the parties to endeavour to reach an agreement on issues before contacting her Chambers.”
The email chain containing the defendant’s email dated 13 August and my Associate’s reply that day was marked in Court during the hearing as JP-2.
On 14 August 2026 at 11:04am my Chambers received an email from counsel for the plaintiffs (copying the defendant) indicating that the matter had been set down for a full-day hearing, rather than a half-day hearing, “for the eventuality that the defendant might appear”.
The defendant did not provide any response to the 13 August 2026 email from my Associate. More specifically, no application was made by the defendant to vacate the hearing date or otherwise vary any of the orders that were in place.
Whilst the defendant had already provided my Chambers with his objections to the evidence of the plaintiffs, no other document pursuant to the Usual Order for Hearing was provided by him to my Chambers.
Given the above evidence and correspondence, at the time of the hearing I was satisfied the defendant was on notice that the hearing of the proceedings was to take place before me on Friday, 21 August 2026, commencing at 10:00am. In coming to this satisfaction, I have had regard to the fact that both my Chambers and the plaintiffs sent the defendant emails emphasising the date and time of the hearing, and the defendant acknowledged receipt of the Court Book (in his email dated 13 August 2026) and provided objections, both of which were in accordance with an email from my Associate which emphasised the date and time of the hearing.
The hearing of the matter commenced at 10:00am on Friday, 21 August 2026. Mr Lakeman appeared for the plaintiffs and provided three sets of written submissions (PWS1 [dated 21 July 2026], PWS2 [dated 18 August 2026], PWS3 [dated 20 August 2026]) in support of the plaintiffs’ application.
When my Associate called the matter at 10:00am, there was no appearance by, or on behalf of, the defendant. For abundant caution, my Associate called the matter outside the Court. There was no appearance by, or on behalf of, the defendant (TR P1 L18-25).
UCPR r 29.7 provides a procedure to be followed if a party is absent at the commencement of a trial, and relevantly provides:
29.7 Procedure to be followed if party is absent
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court—
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
Having been satisfied the defendant was on notice that the hearing of the proceedings was to take place before me on Friday, 21 August 2026, commencing at 10:00am, and having regard to the terms of r 29.7, I made the decision that the hearing would continue in the absence of the defendant (TR P1 L18-36).
According to the Record of Proceedings, it was around 10:39am that I was made aware (by my Associate) that the defendant had emailed my Chambers at 10:32am (the 10**:**32am email). A copy of that email was provided to counsel for the plaintiffs and ultimately comprised part of JP-3. The email read as follows:
“Good Morning Justice Bennet through [Associate]
My last correspondence must have been lost where I explained that Stacks Tweed have rushed to court without a mention of a reconciliation conference.
That being said. The court date of today was supposed to be Monday the 25th. I haven’t received any other correspondence to change that until today when I opened this email. You don’t expect me to be able to attend on such short notice and waste the courts time!
I also don’t have personal WiFi and have to rely on our library network in Sydney’s North West.
Awaiting your response. Thank you.Won’t be near a WiFi system until tonight.”
“I don’t think it’s correct. I think he’s well and truly on notice, not only from the email that’s just been tendered to you, but also from the correspondence that he’s had with your associate and the email that the Court has sent to him. So he’s been well aware or should be well aware. He’s taken virtually no active steps in these proceedings at all. The only two things he’s done was to file a notice of appearance at my request on a document that I prepared for him and he also either handed to me - I can’t imagine how else it would have come into the possession of the plaintiff’s if it hadn’t been through me because I’m really the only one that’s seen him since these proceedings have started and that document has not been filed. The affidavit has not been filed in court so the only copy was the one that I seemed to end up in possession with. The third step he’s taken was the objections, so he clearly knew, not only did he know that the objections had to be made but he also knew the form in which it had to take which was annexed to the Court’s email to him, he just copied it out and filled in one of the final six pages, so he must have had that email from the Court advising him of the date to have completed and returned that document.”
“HER HONOUR: To the extent this is an application to either adjourn or to have this part-heard, I reject that. I think there is abundant evidence that Mr Pallister is aware or has been informed that the hearing will proceed today. Having regard to all of the provisions, s 56, 57 and 58 of the Civil Procedure Act, it is certainly not in the interests of the administration of justice to not proceed with the hearing today. The parties have put a lot of time and effort and money into planning this. The Court itself has also taken its time in terms of preparing for the day. It has set aside the day to hear this matter and if it were - there is sort of no scope to find another day and another time, you would be back in the equity list, all of the costs would be thrown away and if I were to do that, that would be, as always flows - not always, but inevitably flows from that, there would be a costs against Mr Pallister about all the costs thrown away. I don’t think Mr Pallister will want that, so I think even having regard to that I think we must continue with the hearing today.
LAKEMAN: Thank you, your Honour.
HER HONOUR: Yes. I think what needs to happen is my associate needs to opportunity to email Mr Pallister and let him know that as far as the Court’s concerned he has - and perhaps she will remind him about the email that we sent on 27 July 2026 that he has responded to that we’re satisfied, the Court is satisfied that he was on notice that the hearing would proceed today. I will also ask her to send an AVL link, but in the sense he said I don’t have personal Wi-Fi but he’s able to use his email so I really don’t understand what’s going on here.
LAKEMAN: Well it’s submitted it’s another issue of credit, to be perfectly honest.
HER HONOUR: What I am going to do is I’ve made that decision, the hearing will continue and it will continue until it completes today. What I will do now, and it’s going to be early, what I typically do is take a morning tea adjournment at 11.30 for 20 minutes and then we go on, but what I am going to do now is take the morning tea adjournment, that will give my associate the opportunity to email Mr Pallister, send the email link, I’m not going to let any further applications slow this down because there’s a lot of evidence to get through and I certainly want to get through this today but what I will do is take the morning tea adjournment now so she can get that email sent.”
“Dear Mr Pallister,
I note that the Court is currently in the middle of hearing the relevant proceedings. Your email was placed before her Honour Justice Bennett and counsel for the plaintiffs, Mr Lakeman, in open court.
I remind you of the email sent on 27 July 2026, which noted that the hearing was to commence on Friday 21 August. I also remind you of the response we received to that email dated Thursday, 13 August, which I infer to be a response as it adopted her Honour’s objections template as sent on the 27 July email. I note that I responded to that email on the same day, Thursday 13 August. Those emails have been attached for your convenience.
Given your response to the 27 July email, as well as further evidence as discussed in open court, the Court is satisfied that you were on notice of the hearing being today, 21 August, commencing at 10am. The Court is satisfied that the hearing should not be adjourned despite your email.
If you wish to join the proceedings, her Honour has granted you permission to appear today via AVL. Please find below the link to the AVL for appearing virtually: [link provided]. The proceedings have commenced will continue irrespective of whether you join.”
“[18] The clear purpose of UCPR rule 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589):
‘It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. ... In such a case there has been no valid trial at all.’
[19] In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her.
[20] A party is ‘absent’ within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial.
[21] Having read the evidence of service, some of which I have set out, I am now satisfied that all reasonable attempts have been taken to notify the Defendant of the Plaintiff’s intention to obtain orders when the matter was listed before me today. Overall, I am satisfied that attempts have been made, fruitlessly, to get in contact with the Defendant, to provide her with the documents to be relied upon, and to allow her to participate in the proceedings. The Plaintiff has also established that all reasonable attempts to notify the Defendant of the date for the trial and that it was to then proceed have been made.
[22] Finally, on the question, I have not forgotten what I said in Smirski v Macander [2010] NSWSC 929 at [34]:
‘34 It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8].’”
Given the evidence referred to above, I was relevantly satisfied the defendant had notice of the hearing and that he otherwise had had the opportunity to be heard (per Lester at [33]-[36]).
I then considered whether the Court should adjourn the proceedings to give the defendant another opportunity to appear.
On the issue of whether to adjourn, or proceed, with a hearing in the face of a failure of defendants to appear, the Court in Lester stated the following (at [38]-[40]):
“[38] On this issue, the Court must also have regard to the obligations imposed by s 56 to s 60 of the Civil Procedure Act 2005 (NSW). Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57, in turn, requires the Court to have regard to specified matters. Section 58 requires the Court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and to have regard to the provisions of ss 56 and 57. Section 59 requires the Court to, as far as possible, eliminate delay between the commencement of proceedings and their final determination. Section 60 requires the Court to endeavour to resolve issues in such a way that the cost to parties is proportionate to the importance and complexity of the subject-matter in dispute.
[39] All of these sections recognise the fact that delay and case backlog are matters that affect not only the public cost in delivery of justice, but the court’s ability to provide individual justice, and that the reforms introduced by the Civil Procedure Act promote the provision of individual justice notwithstanding that they may have adverse effects on the claims of individual parties in particular circumstances: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [37] (Allsop ACJ). Also see UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 at [38] (Kiefel CJ, Bell and Keane JJ).
[40] Yet, the Court is not required to indefinitely delay the completion of the hearing in these proceedings in the hope that each of the Defendants might change his mind and appear: Allesch v Maunz (2000) 203 CLR 172, 186, 189-191; [2000] HCA 40 (Kirby J); Taylor v Taylor (1979) 143 CLR 1, 4; [1979] HCA 38 (Gibbs J). The right to have the opportunity to be heard is not a right to frustrate the hearing of proceedings by not attending thereat. Justice requires consideration to be given to all the parties.”
By the time of the hearing, the deceased had died nearly three years previously. In order to bring the claim, the plaintiffs had instructed legal representatives and had clearly incurred costs associated with this and with the preparation for the hearing. Any delay would only increase those costs, and would not guarantee the appearance of the defendant, who had had ample opportunity to participate and to be heard and gave no reason to believe he would take up the opportunity to appear if the matter were relisted. In all of the circumstances I was of the view that the plaintiffs were entitled to seek to prove their claims, and if the Court was relevantly satisfied in relation to any claims, that the Court may proceed to make final orders (see Lester at [43], and citations referred to therein).
It is for these reasons I decided that the appropriate course was to continue with the hearing of the Summons, as commenced at 10:00am that morning, notwithstanding receipt of the 10:32am email.
In support of the relief claimed, the plaintiffs read seven affidavits. Five of those affidavits were from each of the four plaintiffs and their solicitor. These were the five affidavits that were personally served with the Summons on 17 March 2026 (see [20] above). Two further affidavits were relied on, being affidavits of service from a process server and the solicitor for the plaintiffs. I will note here that two additional affidavits were also filed by the plaintiffs following the conclusion of the hearing, at the Court’s request. I address those additional affidavits at [117] and [129].
It has already been noted that the defendant provided a copy of an affidavit he deposed dated 21 April 2026. I admitted that affidavit into evidence in the absence of the defendant. In admitting that affidavit, I had regard to the instructions the defendant gave to the solicitor for the plaintiffs and that the affidavit had apparently been provided for use in these proceedings (see [22]).
I have already mentioned that the defendant provided my Chambers with a list of objections to the evidence of the plaintiffs. Most of the objections were minor (see TR P4 L8 to P7 L50).
I considered one objection made by the defendant to be of substance. This objection was in relation to the affidavit of Claudia Pitt (solicitor for the plaintiffs) affirmed on 5 December 2025. Attached to that affidavit was a copy of a decision made by the NSW Civil and Administrative Tribunal (NCAT) on 12 July 2023 (the NCAT reasons). The NCAT reasons related to an application for Guardianship and Financial Management orders in relation to the deceased, wherein the Tribunal appointed Glynnis as Guardian, Jo-Anne as alternative Guardian, and Glynnis and Jo-Anne (jointly) as Financial Managers. In the event, I rejected the tender of the NCAT reasons.
In his objections document (see [32]), the defendant indicated that the basis of the objection was “lacks relevance”.
In their written reply to the objection, the plaintiffs stated:
“The plaintiffs submit that the orders and reasons given by NCAT for the appointment of the first and second plaintiffs as the guardians and financial managers of the deceased are relevant for the following reasons:
a. It shows the status of the first and second plaintiffs at the time of the deceased death were responsible for her well-being of the deceased and were financially managing her affairs.
b. The appointment also is evidence that the first and second plaintiffs are fit and proper persons to whom Letters of Administration should be granted.
c. There are statements in the reasons given by the Tribunal dealing with the similar issues in this case, namely whether the defendant executor prefers his own interest over that of the well-being of formerly the deceased and now the beneficiaries of the Estate.”
In relation to the objection, I raised with counsel for the plaintiffs s 91 of the Evidence Act 1995 (NSW), pointing out that the plaintiffs had not engaged with that provision and noting that it excluded the evidence of judgments (TR P4 L28-32).
Counsel responded, “I was hoping to get it in as a business record rather than as a judgment” (TR P4 L38-39). Counsel did not, however, provide any legal authority to support this submission.
When I again raised the spectre of s 91 of the Evidence Act, counsel stated that the defendant had made an objection, but in relation to relevance, and not to the document itself (TR P5 L4-10).
To this submission I indicated that my view was that the evidence contained in the NCAT reasons appeared only “remotely relevant” in any event, as the decision was already some three years old (TR P5 L24-38):
“HER HONOUR: I’m inclined not to let it in because I think if the applicant’s want to show they are fit and proper people they need to show me they are fit and proper people and they need to put on that evidence in today. So, I will be wanting to hear from you, and I do - you will be taking me to their affidavits.
LAKEMAN: Yes, I will. Yes.
HER HONOUR: But I won’t be - I wouldn’t want to be relying on something that another tribunal decided. I haven’t seen the evidence they relied on. I’ve seen their conclusions, and I don’t even think it is properly before me in the sense that I do have concerns in relation to section 91 that - and I’m aware of the fact that Mr Pallister is self-represented. He has made the objection, so I’ve just got a sense give him the benefit of the doubt, and actually say court’s - if you had a legal practitioner opponent they may well have made the objection on that basis as well.”
“[239] As to the 2016 NCAT reasons, I do not accept that the findings of fact there made would be admissible in this proceeding (see s 91 of the Evidence Act; see also Quach v MLC Limited (No 6) [2021] FCA 271 at [8]-[10] per Rares J) …”
The decision of Bale was the subject of appeal, however not on this issue.
“[8] Any findings by NCAT in its reasons cannot be evidence in this proceeding of the existence of a fact in issue before it because s 91 of the Evidence Act 1995 (Cth) provides:
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
[9] The dictionary to the Evidence Act provides that “Australian proceeding” means “a proceeding (however described) in an Australian court”, and, relevantly, “an Australian court” means:
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence
[10] The disciplinary proceeding before NCAT was such an Australian proceeding because NCAT was a body within the meaning in (e) of the definition of Australian court. Accordingly, s 91 provides that evidence of the decision or finding of fact by NCAT is not admissible to prove the existence of a fact that was in issue in the proceeding.”
In PWS2, the plaintiffs set out the factual background to this application with reference to documents in the Court Book. I have had regard to that evidence and am satisfied that the factual background, as contended by the plaintiffs, is well supported by the documents before the Court. The terms of the factual background provided, with minor amendments and supplemented by documents in the Court Book, relevantly include (PWS2 4-6):
On 6 September 2001 the deceased executed the Will;
In approximately 2005 the defendant commenced living at the Annangrove house, rent free;
On 12 July 2023 there was an NCAT decision whereby Glynnis was appointed Guardian, Jo-Anne as alternative Guardian, and Glynnis and Jo-Anne (jointly) as Financial Managers (this evidence was available from the affidavit evidence and I do not consider to be in dispute);
On 30 November 2023 the deceased died;
On 18 January 2024 the defendant and Glynnis and Jo-Anne attended a conference with the solicitor for the estate about the defendant’s right of residence and the issue of capital gains tax;
In April 2024 the defendant commenced paying water and electricity bills for the Annangrove house;
On 20 August 2024 the defendant obtained the Grant;
In November 2024 the defendant commenced paying the rates for the Annangrove house;
On 30 November 2024 the defendant’s right of residence ceased;
In February 2025 Mark instructed Stacks Law Firm (Stacks Lawyers);
On 3 February 2025 Stacks Lawyers wrote to the lawyer for the estate (addressed to Ms Melissa Ceccato) indicating that Mark “holds serious concerns regarding delays in administration of the Estate”, and particularly noting:
(a) The defendant continues to reside in the Annangrove house; and (b) In accordance with the executor’s fiduciary duties, the “estate should now be administered in a timely manner to prevent any avoidable consequences, such as a liability for capital gains tax”;
(a) No distributions have been made from the estate; (b) The house was currently insured, and the premiums for the house and contents insurance were debited from the Bendigo Bank account, which had been established before the deceased died to manage her expenses and was held by Glynnis and Jo-Anne:
“Our client has requested that, following the grant of probate, the remaining funds in this account be transferred to an estate account or our trust account, but this has not yet occurred. Our client is making inquiries regarding the current balance of this account with Joanne and Glynnis”.
(c) The Annangrove house was not yet listed for sale; certain renovation works remained incomplete which the defendant was hoping to finalise before listing the property, but the defendant would “now consult with a real estate agent to determine whether the property can be sold in its current condition or whether completing specific renovations is advisable before sale”;
“It would have been much better and very much cheaper to just call me or text me for the docs to be sent. I have no problem telling you what is going on.
Could you please assist me by paying the $1 095 which is due next week because I don’t know how much it will be to fix the truck. The invoice for the lawyers I also send to you.
The easiest way to contact me is via the phone.”
(a) they felt the only way forward was to engage a solicitor; (b) they could not pay the estate solicitor’s bill (ie, the $1,095); (c) if the house was not sold by a certain date, it would result in all five beneficiaries becoming liable for capital gains tax (noting liability could arise if the property was not sold within two years of the death of the deceased), and possibly Land Tax, and thus there was urgency; (d) they have agreed the house should be “sold AS IS without any further renovations as this will delay the process of selling”; (e) in relation to the Bendigo Bank account, “Jo-Anne and Glynnis will not transfer the funds from Bendigo Bank to the Trust Account as your solicitor will charge [to] pay bills”; and (f) the defendant has obligations as an executor, which they said included keeping the estate in fair condition; obtaining another property valuation; and communicating with the other beneficiaries, keeping them informed of progress in relation to the sale of the Annangrove house and disbursement of the deceased’s assets;
The plaintiffs requested the defendant reply within 7 days;
“Whilst we note your instructions that your client is amenable to communicating directly with our client and his siblings in an effort to reduce legal costs, we are instructed that he has been consistently difficult to contact. On the limited occasions where communication has occurred, he has been dismissive and unwilling to engage with or address the substantive matters relevant to the administration of the estate.
We are further instructed that his ongoing lack of communication was the principal reason our client sought legal representation from this office. This conduct appears to reflect a broader pattern of behaviour, for which our clients no longer have leniency or tolerance.
ln this regard, should your client continue to procrastinate and fail to comply with his duties as Executor, we are instructed to make an application to the Supreme Court of New South Wales seeking his removal as Executor of the Estate, and shall be seeking a Costs Order accordingly.
…
ln circumstances where the legal costs incurred to date have arisen predominantly as a result of your client’s ongoing lack of communication and failure to properly discharge his duties as Executor, we are instructed to seek that any further legal costs incurred by your client (including your professional fees), from the date of this correspondence onward, in relation to continued communication with our office, be paid from your client’s share of the estate.
We consider this to be a reasonable position, particularly given our view that your client is in breach of his duties as Executor, and that the legal costs incurred by our client–costs which would not have arisen but for your client’s conduct–should be attributed accordingly and deducted from his entitlement under the estate.”
On 4 August 2025 Stacks Lawyers sent a letter to KLH Lawyers referring to the continued failure to communicate appropriately with their clients (presumably, Mark and his siblings) and discharge his executorial duties in accordance with his legal obligations. The letter stated an intention to brief Counsel to bring an application to have the defendant removed as executor;
On 12 August 2025 KLH Lawyers emailed Stacks Lawyers to inform that they had tried to obtain instructions from their client, had “not been successful in raising him”, and would try and keep Stacks Lawyers updated;
On 22 September 2025 KLH Lawyers emailed Stacks Lawyers to advise they “no longer hold instructions to act for the executor of the estate”. They provided the defendant’s email address (as is otherwise in evidence in these proceedings) for direct contact. By this time, it was nearing two years since the death of the deceased; and
On 22 September 2025 Stacks Lawyers wrote directly to the defendant setting out all of the issues of concern, which included concern that there had been a serious breach of the defendant’s fiduciary duties as an executor.
In terms of important dates in the chronology of events, the plaintiffs rely on the significance of 30 November 2025, being two years since the date of the death of the deceased. The plaintiffs say that from this date capital gains tax issues will arise on any subsequent sale of the property. The plaintiffs say that this is one of the further reasons the Grant ought to be revoked, and that it is an issue that the proposed administrators would commence dealing with (TR P31 L19).
Claudia Pitt, the solicitor from Stacks Lawyers for the plaintiff, provided affidavit evidence of events with relevant supporting documents annexed. Ms Pitt has put on evidence of the failure of the defendant to vacate the Annangrove property, and the steps that had been taken by the plaintiffs in this regard; the defendant’s failure to pay the rates, insurances, and outgoings; and the defendant’s failure to maintain the property.
Ms Pitt’s affidavit also set out the ongoing attempts at communication with the defendant (from both her and the plaintiffs) as to his continued inaction and delay.
For her part Glynnis gave affidavit evidence of the defendant’s failure to disclose and failure to account. In giving this evidence, she relied on the various correspondence between lawyers but also requests she had made on numerous occasions to be given information in relation to the deceased’s estate. She says that, when she calls the defendant, her calls go through to his message bank and he does not call back.
Glynnis also gave evidence of what she considers to be a failure to maintain the property and an account of her observations of the Annangrove house since the death of the deceased. She says that, when she has offered to help the defendant with various tasks, he has said words to the effect of “I have study and assessments to complete and people to see”.
Jo-Anne, Mark, and Gillian all give affidavit evidence to similar effect. Call logs and copies of various texts were annexed to the affidavits disclosing unanswered calls, as well as requests for information and inquiries in relation to the sale of the property. The plaintiffs each recall that the defendant frequently ignored texts from his siblings, provided unresponsive answers or noted that he was unavailable to call or meet up. Gillian recalls when the defendant did answer phone calls, he would become aggressive when discussing the estate.
“Revocation of Grant of Probate and Appointment of Independent Administrator
Relevant Principles
[90] There was no dispute about the principles governing the revocation of a grant of probate and the appointment of an independent administrator. Senior Counsel for Laila and Elena provided, in written submissions, a detailed statement of those principles and Counsel for Michael did not disagree with, or qualify, any aspect of that summary.
[91] The Court has inherent jurisdiction to revoke a grant of probate: Mavrideros v Mack (1998) 45 NSWLR 80 at 101-3 per Sheller JA (with Priestley JA and Beazley JA (as Her Excellency then was) agreeing) [1998] NSWCA 286, referring to Bates v Messner (1967) 67 SR (NSW) 187. The existence of such a power is assumed in s 40D of the Probate and Administration Act 1898 (NSW) (see also ss 81(1) and 90(2)).
[92] A grant of probate in common form is in the nature of an interlocutory judgment, and ‘it is open to a Court, exercising probate jurisdiction, to revoke the grant, at any time, upon a proper case being established’: Estate of Philip Mack (Deceased) [2022] NSWSC 1629 at [17]-[18] (Hallen J), and the cases there cited.
[93] A person applying for the revocation of a grant of probate must be able to show that his or her rights will, or may, be affected by the outcome of the proceedings. Generally speaking, an interest sufficient to entitle a person to oppose a grant of probate is sufficient to entitle the same person to apply for a revocation of a grant: Estate Kouvakas*; Lucas v* Kouvakas [2014] NSWSC 786 at [212]-[213] (Lindsay J); Lester v Brown [2022] NSWSC 716 at [100] (Hallen J). Laila and Elena, as executors and beneficiaries under the Will, plainly meet this standing requirement (and there was no contention otherwise).
[94] In Estate Wight; Wight v Robinson [2013] NSWSC 1229, Lindsay J observed that the grounds upon which the Court may, in its discretion, revoke a grant of probate (especially a grant in common form) are not closed (at [23]), and that it is not necessary that there be any finding of misconduct or default (at [28]). In that case, his Honour determined that the discretion should be exercised to revoke a grant of probate in circumstances where there was a bona fide dispute which had affected the due administration of the estate and was likely, if not resolved, to continue to do so, and where the working relationship between the plaintiff and the defendant necessary to the due administration of the estate had broken down, frustrating the process of administration (at [28]).
[95] In Lester v Brown at [110]-[111], Hallen J observed as follows:
‘The guiding principle is whether the administration of the estate is being carried out properly: Lucas v Konakas at [211] (Lindsay J). Put another way in the circumstances of this case, when looking at the welfare of the beneficiaries named in the Will of the deceased, is it in their best interests to replace two of the executors?
The primary concern of the Court is to ensure that the estate is efficiently and properly administered according to the terms of the will. In support of this proposition, I need only refer to Mavrideros v Mack (1998) 45 NSWLR 80, at 108 (Sheller JA, with Priestley and Beazley JJA agreeing) …’
[96] In Lester v Brown, Hallen J determined that a grant of probate to the plaintiff and the defendants should be revoked in circumstances where the ‘apparent breakdown in the relationship between the parties has placed the administration of the deceased’s estate in jeopardy’, such that ‘the administration, and the distribution, of the estate, has completely stalled’ (at [116]-[117]).
[97] The power to revoke a grant of probate may be exercised in circumstances where there is inexcusable delay or inefficiency in administering the estate: (Mavrideros at 107-108), including where there is ‘unjustified delay and ineffective co-operation among joint executors and trustees’ (Walker v Walker [2016] NSWSC 92 at [22] (Slattery J)).
[98] In Schaverien v Jones [2007] NSWSC 1429 at [2]-[4], Bryson AJ addressed the principles that apply in circumstances where personal conflicts are impeding the proper administration of the estate, as follows:
‘In Bates v Messner Asprey JA said at 191:
“The real object which the Court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the Court has been induced to entrust the office of executor.”
The power was stated quite broadly by Jeune P in In the Goods of Loveday (1900) P 154 at 156 in a passage which was set out and approved in Mavrideros v Mack by Sheller JA at pp 101-102.
“After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interest of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient. If the Court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administered the estate, and if it turns out that the persons who were appointed will not or cannot administer, I do not see why the Court should not revoke an inoperative grant and make a fresh grant.”
While the conduct of the executor and ability for the duties of executorship receive close attention the jurisdiction is not punitive. The considerations are pragmatic and relate to the effective and efficient administration of the estate and the interest of the persons beneficially entitled. It is necessary that arrangements made by the existing grant of probate should for some sound reason be shown to be impracticable so that the Court should no longer give its authority to them. Cases of this kind will often involve impeachment of the conduct of an executor, but that is not the primary focus, and a clear demonstration of shortcomings in an executor is not necessarily part of the ground on which the Court acts. In this case, where personal conflicts brought estate administration to something near paralysis, there is a need for an expedient solution, even if that solution may be less than perfectly fair to someone who is affected by it.’
[99] Where probate has been granted to more than one person, and where one, or more, of the executors to whom probate has been granted is to be removed involuntarily for proper reasons, the usual practice of the Court is to recall, and revoke, the original grant, and make a fresh grant of administration, with the deceased’s Will annexed, to the remaining executor or executors. The revocation of the grant is a revocation in toto, not a partial revocation, and the fresh grant to the remaining executor entirely supplants the former grant: Lester v Brown at [112]; Estate of Phillip Mack (Deceased) at [33]-[35].
[100] Where a grant of probate is revoked, the Court may appoint an administrator under s 74 of the Probate and Administration Act: see Kuitkowski v Tream [2023] NSWSC 145 at [19]-[21] (Robb J). The Court also has power, under s 73 of that Act, to appoint an interim administrator: see Ritossa v Ritossa [2023] NSWCA 14 at [40]-[42] per Bell CJ (with Gleeson and White JJA agreeing).
[101] In circumstances where a grant of probate is revoked by reason that the orderly administration of the deceased’s estate has been disrupted, with the consequence that the completion of the administration, and the distribution, of the estate has stalled, the question that arises for consideration is ‘what order should be made to ensure the timely administration of the estate’: Lester v Brown at [118].
[102] In Ritossa, the Court formed the view that the relationship between the parties (who were brothers) was not such as to lend itself to any agreement between them regarding the administration of the estate, with the result that ‘necessity dictated that an independent person be invested with authority to manage the estate and its principal asset on an ongoing basis’ (at [45]).”
The Summons as filed sought relief in relation to a number of claims, however, in written submissions provided before the hearing (PWS2 6-7), the relief claimed was limited to an order for revocation, an order for the appointment of Glynnis and Jo-Anne as administrators, and an order that the defendant pay the plaintiffs’ costs of the proceedings personally.
In the course of the hearing counsel for the plaintiff confirmed those were the only orders that the plaintiffs were moving on (TR P25 L37-46).
The plaintiffs had also sought an order for “leave to apply in these proceedings for any ancillary or consequential relief”, apparently in contemplation that further proceedings might well be entertained by the new administrators, should they be appointed. During the hearing, counsel for the plaintiffs clarified that the plaintiffs sought the order so as to keep the file open (TR P26 L1-4), given the potential for future litigation, including the “possibility that [the defendant] won’t leave [the Annangrove house]”, with the intention of relieving the estate from additional costs of commencing proceedings with fresh affidavits (TR P27 L8-15).
I indicated at the time that I proposed to hear and determine the issues that were then before the Court, and that, following the making of any decision, I did not propose to make an order with the intention to leave the file open in case any subsequent litigation was entertained by the plaintiffs (TR P26-27). I was and am of the view that, having regard to the nature of the proceedings before the Court, the dictates of justice, including the efficient disposal of the business before the Court and the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, an order should not be made leaving the Court file open in case of further litigation (per ss 56-59 of the Civil Procedure Act 2005 (NSW) (CPA)).
As part of this decision, I had regard to the submission of the plaintiffs that they sought to save costs in relation to the need for fresh affidavits in any new proceedings. In my view, there would be little chance of such saving, as the plaintiffs would be required to put on fresh affidavits, in any event, if they were to commence proceedings for, say, possession (using an example raised by the plaintiffs), given the new context and circumstances that would follow if the plaintiffs were successful in this application.
48 Commencement of proceedings with defendant
(1) If there is a defendant, proceedings for the revocation of a grant of probate or administration must be commenced by statement of claim.
(2) The statement of claim must allege facts that, if proved, would show that the plaintiff has standing to commence the proceedings.
“These proceedings were commenced by Summons rather than statement of claim. The reasons for that were twofold. Firstly, the plaintiffs seek in the alternative their appointment as trustees and the vesting in them of the Annangrove property. They also seek further relief, either in the present proceedings or after they have been appointed as administrators with the Will annexed or as new trustees to ensure that the property can be sold after the defendant has vacated the property.”
I note the plaintiffs provided no legal authority as to why their claims in the alternative, being for appointment of trustee and relief for vacation of the property, should be commenced by Summons. Further, I am of the view that a plain reading of UCPR r 6.3 suggests that both proceedings in relation to a trust and proceedings on a claim for possession of land are kinds that must be commenced by statement of claim (see sub-rr (e)-(f)).
The plaintiffs did draw my attention to the reasoning of Nixon J in Farah, from [82], regarding why proceedings regarding a revocation of a grant of probate must be commenced by Statement of Claim, and why an order pursuant to s 14 of the C**PA dispensing with the pleading requirement was then made (at [88]).
Consequently, I observe that the Court is empowered to dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case (s 14 CPA), and that the basic principle is that “the rules of the court are to be the servant of justice, not its master” (Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [38]). In this context I note the purpose of a Statement of Claim is to put defendant(s) on notice of the allegations of material fact upon which the plaintiff relies in seeking the revocation of a grant of probate (Farah at [86]).
On the issue of notice of the allegations made by the plaintiff, I note that the evidence of the plaintiffs in these proceedings was filed and served at the same time as the Summons, and that the defendant thus had notice of the evidentiary basis of the plaintiffs’ claim.
In the course of the hearing, I raised some concern about the extent of the relief claimed under the Summons as filed, and the extent to which the defendant will have had the relevant notice (TR P23 34-47, P25 L1-4). However, given the restricted nature of relief now sought, and thus of material facts alleged, and noting the defendant had been served with the affidavits that were before the Court, I was satisfied that the defendant would have been sufficiently on notice as to the allegations of material facts (TR P25 L13-17).
Accordingly, I indicated to the plaintiffs that I was content for them to move on the Summons without the need to plead by way of Statement of Claim, if the relief claimed was limited to that sought in PWS2 (TR P25 L13-17). Counsel for the plaintiff confirmed this to be the case (TR P25 L46). In indicating that I was content for the plaintiffs to proceed by way of Summons (albeit limited), I was exercising the power of the Court pursuant to s 14 of the CPA. In doing so, I considered the making of the order would facilitate the just, quick and cheap resolution of the real issues in dispute.
Noting the refined scope of orders sought by the plaintiffs, and in light of the legal principles set out at [74], the issues before the Court were:
Is it in the interests of the due administration of the estate to make an order revoking the Grant?
Is it in the interests of the due administration of the estate to make a fresh grant of Letters of Administration to Glynnis and Jo-Anne?
Ought the Court exercise its discretion and make an order that the costs of the proceedings be paid by the defendant, and that he not be entitled to indemnify himself from the estate of the deceased?
“Reference is made in particular to his Honour’s summation in [paragraph 2] referring to the decision of Bryson AJ in Schaverien v Jones [2007] NSWSC 1429 in the following terms are:
‘The real object which the court must always keep in view is the proper and due administration of the estate, in the interests of the parties beneficially entitled thereto, on the part of the person to whom, and by whose oath, as to the faithful performance of his duty, the court has been induced to entrust the office of executor.’”
I note that Bryson AJ was, in that paragraph, quoting Bates v Messner (1967) 67 SR (NSW) 187 (see [74]).
In support of their submission that the defendant should be removed as executor, the major complaint as to the conduct of the defendant is his failure to prepare the Annangrove house for sale, to effect such sale, and to distribute the estate of the deceased to the beneficiaries. Associated with this is the complaint of the defendant’s lack of communication and disclosure in relation to the estate, as well as his failure to maintain the property. The patent failure to sell the property is in the context of repeated requests to do so, over a considerable period of time, with more than reasonable notice.
Having regard to all of the evidence, including the detailed affidavit evidence with documentary support as referred to above at [67]-[73], as to the defendant’s failure to take steps to prepare the property for sale and sell it, I am of the view that it is in the interests of the due administration of the estate to make an order to revoke the Grant.
Firstly, the Annangrove house essentially comprises the whole of the estate. Secondly, all beneficiaries, other than the defendant, wish to have the property sold so as they are able to receive their entitlements from the estate. I am therefore satisfied that due administration of the estate, which considers the welfare and interests of the beneficiaries, would include selling (or, at least, taking steps towards selling) the Annangrove house.
I am of the view that the delay of the defendant in taking these steps is highly significant and that an order for revocation ought be made. In deciding to make this revocation order, as sought, the authorities confirm I do not necessarily need to make any finding of misconduct or default, with the focus of the Court squarely on the issue of the due administration of the estate, including the welfare and interests of the beneficiaries. In this, I am satisfied that the administration of the estate has completely stalled, that the defendant’s conduct is preventing the proper administration of the estate (per Lester at [114]-[117]), and that it is in the interests of the due administration of the estate for the Grant to be revoked.
Having regard to the evidence summarised above at [67]-[73], it will be seen that from the time of the death of the deceased (30 November 2023), to the time the defendant as executor ceased to be represented by KLH Lawyers (around 22 September 2025), the defendant consistently conveyed to the plaintiffs he intended to sell the Annangrove house. To the extent there was some apparent delay in the sale process during this period, the source of the delay appears to have been a consideration of the extent to which the property required renovation or repair before the sale.
Against this, the plaintiffs refer to evidence which suggests that the defendant may have delayed selling the property because he did not intend to sell the property, but instead to rely on clause 5(c) of the Will (see [11]). For example, Jo-Anne gives evidence that on about 21 April 2024 the defendant, when referring to a need to paint the property, stated to Jo-Anne and her husband, the house “would not need to be painted because the house was not going to be sold”, and that “mums will did not explicitly say it had to be sold”. On this, Counsel for the plaintiffs submitted during the hearing, “that seems to be a reference to para 5(c)” (TR P22 L4-9).
More recently, on 11 July 2025, Gillian gave evidence of a phone call with the defendant, wherein he stated, “I’m not selling the place I don’t have to”.
To the extent that the defendant may be relying on a power given in the Will relating to the investment of any assets in the estate, the plaintiffs submit that that power “does not override his primary obligation to call in and distribute the assets of the estate being the deceased’s former home” (PWS1 [5]).
For his part, at [9] on page 4 of his affidavit provided for these proceedings, the defendant stated under the heading “The rent-free assertion”:
“The assertion is contrary to [clause] 5. c) of the will that states that I alone as the trustee shall to postpone without being responsible for loss the sale calling in and conversion of the whole or any part of my estate as the trustee may think fit.”
Having regard to the terms of the above statement, it is not clear to me whether the defendant is seeking to postpone the sale of the Property (for whatever reason), or whether he does not propose to sell the property at all.
More specifically, in relation to the terms of clause 5 of the Will, the plaintiffs make the following submission (PWS3 [6]-[8]):
“[6] It is submitted the scheme of the Will is to provide for a period of 12 months for the executor Timothy Jon Pallister (the defendant) to reside in the property and then it would be sold, subject to the reasonable exercise of the power of postponement by the defendant.
[7] It is submitted that an accurate statement of the law dealing with a duty coupled with a power is found at paragraph [16-16] at page 331 Jacobs’ Law of Trusts in Australia (16th edition) in the following terms:
Thus, where the trust instrument imposes a duty upon trustees to sell realty but also gives them a discretionary power to postpone the sale the court will not intervene with a bona fide exercise of their discretion as to the time and mode of sale.
[8] It is submitted that the exercise of the power of postponement by the defendant Timothy Jon Pallister is not bona fide and is in breach of his duty to exercise his powers as a trustee for the benefit of the whole estate and secondly, not to prefer his own interest over that of the other beneficiaries.”
Having regard to the evidence that the defendant stated he did not intend to sell the Annangrove house, at all, together with an unexplained and unreasonable delay in the sale of the property, I am of the view that the defendant does not appear to be reasonably exercising any power of postponement. I have also had regard to the evidence that, despite the defendant initially making representations he wished to repair or renovate the property, after continued suggestions from the plaintiffs that the property should be sold as is, the defendant agreed to proceed with the sale of the Annangrove house. Even in his own affidavit, the defendant does not provide reasons for why he has postponed the sale under clause 5(c) of the Will. I therefore accept the submission of the plaintiffs and am satisfied that it is in the interests of the due administration of the estate for the Grant to be revoked.
This is not a Will construction suit, and even if it were the defendant is not on notice of it being one. No issue of construction arises on the pleadings, and, despite raising construction in their third set of submissions, the plaintiffs confirmed during the hearing that they did not seek any relief relating to construction of the Will (TR P25 L32-46). As such, I do not provide a concluded view on any more narrow construction issue, but rather, on the broader issue of the interests of the due administration of the estate. On the evidence before the Court, I am of the view that the estate is currently not being efficiently or properly managed and that the Grant ought to be revoked.
Glynnis and Jo-Anne are proposed as the Administrators, noting that all four plaintiffs (who are also beneficiaries) have put on affidavits wherein they have provided their consent and otherwise indicated that the appointments would be supported.
Glynnis is 60 and is a kindergarten teacher. She was the deceased’s appointed Guardian and Financial Manager whilst the deceased was alive. Glynnis gives evidence of experience in dealing with her mother’s financial affairs since her appointment as Financial Manager in 2017, including keeping detailed records, as well as otherwise assisting with her mother’s care over time. She says that she and Jo-Anne have always worked together, and that they continue to work well together.
Additionally, Glynnis was the treasurer of her local softball/baseball club for over 10 years and participated in fundraising.
Jo-Anne is 64 and is now retired, however before that was an intensive care paramedic for 18 years and a high school teacher for 13 years.
Jo-Anne was appointed with Glynnis as Guardian and Financial Manager of the deceased and Financial Manager. In this, Jo-Anne says she had experience in managing the deceased’s affairs, as well as experience in working with Glynnis. Like Glynnis, Jo-Anne said that she and Glynnis consulted their siblings regarding the deceased’s health care and finances before making any decision, noting that all decisions were made in the deceased’s best interest.
As well as experience in the management of the deceased’s financial affairs, Jo-Anne gave evidence of prior financial experience as treasurer of the NSW Cave Rescue Squad for five years.
Both Glynnis and Jo-Anne live relatively close to the Annangrove house and would be able to supervise work as required.
In the course of the hearing, I raised with counsel for the plaintiffs the issue of Glynnis and Jo-Anne retaining the Bendigo Bank account, which they had used on behalf of the deceased when she was alive, and which held some $11,000 at the time of the deceased’s death (see [12] and TR P34 L1-14; P36 L11). The evidence before the Court discloses that all of the cash in the Bendigo Bank accounts has been used in relation to estate payments, with further payments made by Glynnis and Jo-Anne on behalf of the estate which will require reimbursement (TR P39 L39 – P40 L45).
It seemed to me that, in retaining control of the Bendigo Bank account, albeit containing a relatively small sum, there was an informality and blurring of boundaries of roles. I invited submissions on this, given that I considered I needed to be satisfied that there would be no blurring of boundaries should Glynnis and Jo-Anne be appointed as Administrators, and that they would need to have a formal sense of their duties as Administrators (TR P36 L32-49).
At this point, Glynnis, who was present in the Court room, sought to give oral evidence on this issue, which she did in the witness box under oath (TR P38-42). In her evidence, Glynnis explained that, on 18 January 2024, she, Jo-Anne, and the defendant attended a meeting to discuss probate and the administration of the estate, at which meeting the defendant agreed to Glynnis and Jo-Anne’s retaining control of the Bendigo Bank account and making estate payments from that account (TR P38 L22 - P39 10).
Glynnis confirmed that the account had only been used for estate expenses (ie, insurances, rates, and other bills: TR P39 L12-16), and that she did not otherwise touch the account.
Glynnis also explained that, even though the terms of the Will (clause 3 a)) required the defendant to pay all outgoings, for some time the defendant has not been able to do this, as he did not have a job, and that those outgoings were paid from the Bendigo Bank account funds (TR P39 30-41).
When giving her evidence, Glynnis otherwise confirmed that, if she were to be appointed as Administrator, she would not undertake the task informally, that she understood that good records were required to be kept, and that more generally she would be required to act in accordance with the strict duties of an executor (TR P40 L47 – P41 L9).
At the conclusion of the hearing, I sought from each of Glynnis and Jo-Anne an affidavit confirming their awareness of administrators’ duties and obligations (TR P42 L25-45). Those affidavits were provided on 2 September 2026, and each contained undertakings as to the proper administration of the estate. For example, Glynnis’ affidavit stated at [17]-[18]:
“17. If I am granted probate of the will of the deceased, I will:
a. Administer the estate according to law.
b. Administer the estate in a timely and prudent manner.
c. Verify and file; or verify, file and pass, my accounts relating to the estate of the deceased within 12 months from the date of grant if so, required by the Court.
d. Act in the best interests of the estate and the beneficiaries. I will not self-benefit from the estate or prioritise my own interest above that of the other beneficiaries.
e. Keep all beneficiaries fully informed and notified of the estate administration.
18. In the interests of minimising further costs to the estate, I will not claim commission.”
I am of the view that it is in the interests of the due administration of the estate to make a fresh grant of Letters of Administration to Glynnis and Jo-Anne. Accordingly, I propose to make an order for that grant.
In reaching this conclusion, I have had regard to their familiarity with the estate of the deceased, in her lifetime, and note that as Financial Managers they had fiduciary duties. There is no suggestion, including by the defendant, that Glynnis and Jo-Anne carried out that role otherwise than properly and in the deceased’s best interest.
I also note the responsible and respected occupations each of Glynnis and Jo-Anne hold, and held, respectively, and that they each have other experience managing money and needing to be accountable and transparent in doing so. In noting this, I have accepted the explanation of Glynnis as to why control of the Bendigo Bank account was not handed over to the defendant (being the product of initial agreement with the defendant), however, there will be no such informality adopted going forward.
There appears to be no dispute that the current outstanding solicitor’s bill owed to the solicitors who previously acted for the defendant (as executor), for an amount of $1,095, is to be paid from the deceased’s estate and not by the defendant personally (TR P28 L43-49). As part of this, counsel for the plaintiffs, with respect to the evidence before the Court, accepted that the solicitors appeared to have acted properly (TR 29 L6-11, L45-50; P30 L1-26).
In relation to these proceedings, the plaintiffs sought an order for their costs to be paid by the defendant personally (PWS2).
As is uncontroversial, s 98(1) of the CPA gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 at [14] (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).
The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1.
Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).
I consider that the application was properly brought and necessary as a consequence of the defendant’s conduct in his capacity as executor of the estate (Lester at [127]; Thomas v Alpitt [2023] NSWSC 727 at [102]). That application has been wholly successful. I also note that, were I to make an order that the plaintiffs’ costs be paid out of the deceased’s estate, the plaintiffs as beneficiaries would collectively bear four fifths of their own costs. I am of the view that this would not be a just result (see Lester [127]).
Having regard to these and all the circumstance of the case, and in the exercise of the Court’s discretion pursuant to s 98(1) of the CPA, I propose to make an order that the defendant pay the plaintiffs’ costs personally.
The plaintiffs did not specify in their written or oral submissions whether they sought their costs on the ordinary or indemnity basis. On this, the following exchange took place in the course of the hearing (TR P45 L1-17):
“HER HONOUR: Your order number 12 is - I mean, I note the one’s that aren’t pressed, but an order that the costs of these proceedings be paid by the defendant, Timothy Jon Pallister, personally.
LAKEMAN: Well I mean, they would come out of his share of the estate if your Honour were minded to make an order. I mean if your Honour’s going to order further affidavits to be filed, I could ask my instructing solicitor to do an affidavit as to what the costs of the matter are and your Honour could award it or only some part of it. If it’s only some part, then the cost can come out of the estate with Mr Pallister, to reimburse a percentage of those costs--
HER HONOUR: Okay, thank you for that.
LAKEMAN: --with all the problems he’s occasioned by bringing everyone here to court today.”
I note that on 2 September 2026, the solicitor for the plaintiffs filed a costs affidavit in accordance with orders made at the conclusion of the hearing. That affidavit contains a request for costs on an indemnity basis (at [6]). However, I have not been provided with submissions as to why the court should make such an order. In the circumstances of these proceedings, I am also of the view that an order that the defendant pay the plaintiffs’ costs personally on the indemnity basis ought not be made absent evidence that the plaintiffs warned the defendant they would seek such an order, that is, an order for indemnity costs as opposed to ordinary costs. In this, I note the following correspondence from Stacks Lawyers:
Letter to KLH Lawyers dated 2 April 2025, which states, “our client will be seeking costs”;
Letter to KLH Lawyers dated 30 June 2025, which states that the plaintiffs “shall be seeking a Costs Order accordingly”; and
Letter to the defendant dated 22 September 2026, which states, “our clients will be seeking: […] 3. Costs.”.
The plaintiffs also did not provide any submissions as to a costs order of the kind made in Lester (at [127]) and in Alpitt (at [103]), being an order that any difference between the plaintiffs’ costs on the indemnity basis and on the ordinary basis be paid out of the estate.
Accordingly, I am minded to make an order for costs on the ordinary basis only.
In relation to the defendant’s costs, as a self-represented litigant, I will make no order in relation to his costs, with the intention that he bear his own costs, if any.
For the reasons set out above, I make the following orders;
ORDER that the Grant of Probate issued by the Court on 20 August 2024 in respect of the estate of the late Kathleen Marie Nancy Patricia Pallister (the deceased) to the defendant be revoked.
ORDER that Letters of Administration with the Will of the deceased dated 6 September 2001 annexed be granted to Glynnis Olwyn Smith and Jo-Anne Marie Pallister (the Administrators).
ORDER that the defendant deliver up to the Registry, within 7 days of service of a copy of the orders on him, the Original Grant.
ORDER that, if the Original Grant is not produced to the Court by the defendant in accordance with these orders, the Registrar in Probate is to proceed to complete the grant of Letters of Administration to the Administrators notwithstanding the non-compliance with order 3 above.
ORDER that the matter be remitted to the Registry to complete the grant of Letters of Administration to the Administrators.
ORDER that the defendant is restrained from:
(a) using the Original Grant except to deliver it up to the Registry in accordance with these orders; (b) acting or purporting to act as a legal personal representative of the deceased; and (c) holding himself out as entitled to act as a legal personal representative of the deceased.
(a) deliver up to the Administrators all property, including funds received from the estate’s assets, of the deceased held by the defendant or under his control; (b) deliver up to the Administrators all documentation held by the defendant or held under his control in respect of the estate including all papers, documents, accounts, receipts or other documents relating to the estate’s assets; and (c) transfer to the Administrators all funds of the estate held by the defendant or under his control.
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Order (2) amended to specify that the Will of the deceased dated dated 6 September 2001 shall be annexed to Letters of Administration.
Smith
Pallister
[2026] NSWSC 541
(2015) 91 NSWLR 190
(1944) 68 CLR 571
(2018) 265 CLR 77
(2000) 203 CLR 172
(1979) 143 CLR 1
(1998) 45 NSWLR 80