60 The defendant was thus placed under considerable pressure to consent to the orders now sought.
61 I will say something further in due course about the plaintiff's contention that it should be inferred that the defendant was not properly administering the estate because she did not appear to oppose the application which the plaintiff herself brought to restrain the auction. That bare statement indicates that it does not lie in the plaintiff's mouth to make any such contention.
62 There is tension between the plaintiff's complaint that, although she obtained judgment in 2004, she has not been paid any part of that judgment, and her complaint that the defendant has acted improperly by proceeding to sell the Irish lands at public auction when the Garryletter property is still encumbered by the rights of the deceased's mother. It may well be the case, as Mr Brosnan says in his correspondence, that those rights make the property less attractive to potential purchasers. This may adversely affect the price which is to be received for the property. On the other hand, the Irish lands are the only property available to the defendant which can be realised to pay the debt owed to the plaintiff and the other debts incurred in the administration of the estate.
63 The plaintiff gave oral evidence that she was advised by an Irish real estate agent that because the Garryletter property was subject to a life estate, the properties would realise more if they were sold separately. She also said that she was advised that the price would be maximised if the land were subdivided into five-acre lots. There is no evidence that such a subdivision would be possible, even if the estate had funds to effect such a subdivision, which it does not. The defendant did not give evidence about this advice in her affidavits. There is no evidence as to the identity of the adviser, nor his or her expertise, nor what instructions he or she was given. Although the plaintiff said that she had a conversation or an email exchange with Mr Brosnan regarding selling the properties separately rather than together, and that she also discussed that with the defendant's brother in January 2007, there was no evidence that the advice which the plaintiff says she received was conveyed to the defendant.
64 The defendant said that she had received advice from the local agent that the price for the lands would be maximised if they were sold as one lot.
65 With that unfortunately lengthy background I turn to the particular complaints of improper administration which the plaintiff makes.
66 The first allegation is that the defendant did not provide proper accounts to the plaintiff as creditor or in her capacity as guardian of the two beneficiaries. The defendant's evidence, which was not challenged, was that after the Family Court proceedings she did not receive any request for accounts. During the Family Court proceedings detailed evidence was given as to the nature of the assets of the estate.
67 On 10 September 2008, McPhee Kelshaw wrote to Hall Partners referring to this allegation in the statement of claim. They noted that the assets had not been realised and no request had been received for accounts for the estate in relation to the Irish properties and any income derived therefrom. They provided accounts of the moneys received by the defendant and an account of how those moneys were disbursed. Also included was a statement of the account with Mr Hartnett and the value and description of the Irish properties and a statement of the outstanding liabilities.
68 There is no substance to the complaint that the defendant failed to provide proper accounts. Nor did this allegation feature in the plaintiff's submissions.
69 The second allegation is that the Irish lands have been let to Mr Hartnett on terms that do not represent a proper commercial return on the property. It is sufficient to say, as noted above, that the evidence is that the land has been let at a rental above its market value. Even if there were grounds to challenge the valuer's opinion as to the market value, there is no reason to think that the defendant has not acted properly in renting the land at the rent she has. From the time of her assuming office as executrix, or shortly thereafter, the defendant negotiated an increase in the existing rent from her brother-in-law. The fact that the land is occupied by a relative by marriage does not suggest any impropriety on the part of the defendant in maintaining those arrangements.
70 The next allegation is that the defendant failed to take proper steps to recover the sum of $283,000 paid by the deceased to Sheila Borland. For the reasons I have already given, I consider that any suit to recover those moneys would face serious difficulties. The defendant received legal advice to that effect. It is not the case, as was submitted, that the defendant took no steps to seek to recover the moneys. She spoke to her sister attempting to do just that. The result of those communications is that she and her sister are now estranged. It cannot be said that she has not made conscientious efforts on behalf of the beneficiaries of the estate, and of the plaintiff as a creditor, to recover that sum. In any event, there is no cash in the estate to fund litigation in Ireland against Sheila Borland to recover the alleged debt, or the alleged trust moneys. Again I do not think there is any substance in this complaint.
71 The next allegation is that the defendant attempted to sell the Irish land to Mr Hartnett in circumstances in which it was unlikely that the property would fetch a proper price. The defendant's refusal to countenance a private sale to Mr Hartnett tells strongly against this allegation. As the property was marketed widely and was to be offered for sale at public auction, it could not reasonably be said that the defendant was attempting to sell the property at what was less than a proper price in the current circumstances. The allegation rather is that the Garryletter property should not be sold whilst it is encumbered by a life estate in favour of Mrs O'Sullivan.
72 It may be observed that from at least 2 December 2006, the plaintiff was aware of Mrs O'Sullivan's interest in the property and its potential to affect adversely the sale price. It was not until about 20 August 2007 that the plaintiff objected to the auction proceeding at all, as distinct from her objecting to a private sale to Mr Hartnett.
73 If the defendant can be criticised in relation to the attempts to sell the Irish lands, the criticism would be this. Because she has received advice that the price would be maximised if the lands were sold as one lot, the defendant has not obtained separate valuations for the Garryletter property on the one hand and the Garrymore and Releagh properties on the other. Given that the Garryletter property is the subject of a specific gift to the deceased's son, and given that the will charges residue with the payment of debts, then at least, prima facie, it would appear to me that it would not be proper for the defendant to sell the Garryletter property if the sale of the remaining property would be sufficient to discharge all of the debts. Having regard to the comparative sizes of the properties, it may be doubted whether the residue would realise sufficient amount to discharge all of the debts, but in the absence of a valuation it would be very difficult for the defendant to form such a view.
74 However, this was not a separate particular of improper administration of the estate. In any event, in the circumstances in which the defendant was acting there is no personal impropriety in what she has done. She has at all times retained solicitors in Australia and in Ireland to advise her on the conduct of the administration, as is proper. It does not appear that the plaintiff has ever suggested to the defendant that she should investigate the sale of the Garrymore and Releagh properties separately from the Garryletter property. Although in my view the question of the likely value of the Garrymore and Releagh properties should be investigated before all properties are relisted for sale, I do not think that the defendant has been guilty of any act or omission in the administration of the estate in this respect, as would justify her removal as executrix.
75 The next ground upon which the plaintiff contends that the defendant ought to be removed as executrix is because it is said that she has made statements to the effect that the plaintiff and the plaintiff's children will get nothing from the estate. The defendant denies having made statements to that effect. I accept that denial. The statements are alleged to have been made in 2003. The passage of time and the inevitable reconstruction of events, coupled with the Family Court litigation in 2004, and coupled also with the emotional stresses which this matter entails, makes it quite likely that there has been unconscious reconstruction of conversations, probably in all parties' evidence.
76 It is sufficient to say that I am not satisfied that the defendant made any statements to the effect alleged. Nor do I consider that her administration of the estate has been adversely affected by feelings of personal animosity to the plaintiff. To the contrary, her dealings with her sister leading to their resulting estrangement, and her correspondence with her solicitors in relation to the proposed private sale to Mr Hartnett, betoken a conscientious performance of her duties.
77 The next allegation is that the defendant has admitted an incapacity to apply resources to the proper administration of the estate. It is not entirely clear to what this is directed. It is true that the estate has lacked resources, but it is not an executor's duty to supply resources to an estate from his or her own pocket. In fact the defendant has spent her own moneys in travelling to Ireland to advance the interests of the estate. I infer that the allegation arises from the defendant's failure to appear at the hearing before Gzell J on 29 August 2007. It will be recalled that Mr Hall said that his client would be relying on that failure as demonstrating that the estate was not being "properly resourced" and the defendant was uninterested in its proper management.
78 It is difficult to deal with that submission with proper circumspection. The plaintiff cannot be heard to say that her application to restrain the auction was not made on proper grounds, so that it ought to have been opposed by the defendant. Yet unless that is the plaintiff's contention, I cannot see how the defendant should be criticised for not spending funds in opposing the application. In any event, the application was made at the very last moment. The defendant says, and I accept, that she lacked the time properly to respond.
79 The allegation in paragraph 43(g) of the statement of claim adds no further particulars of the allegation of failure properly to administer the estate.
80 The remaining matter is the delay in obtaining a grant of probate in Ireland. For reasons I have already given, I do not consider the defendant personally to be at fault in respect of those delays. It appears to me that she has done all that she can and that the further progress towards obtaining the grant of probate lies with the solicitors she has retained and, I might add, with the plaintiff.
81 For all these reasons I refuse the claim for relief in the statement of claim and I order that the statement of claim be dismissed.