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[2026] NSWSC 1224
Supreme Court of NSW
2026-10-02
Slattery J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sultana v Sultana & Anor [2026] NSWSC 1224
Hearing dates: 4, 7, 11, 14, 22 September 2026
Date of orders: 2 October 2026
Decision date: 02 October 2026
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision: Special administrator will be appointed for a period of six months to a portion of the property of one of the estates, which is most potentially at risk of loss. Short minutes of order to be brought in to provide for this in the meantime existing orders continue. Orders to be made to assist in identifying and preserving the assets of the estates and reducing the issues in dispute. Orders made to ensure that the defendants’ administration of the estates is open to scrutiny by the Court, plaintiff, and by any other beneficiary as is practicable.
Original judgment source is linked above.
Catchwords: SUCCESSION — Executors and administrators — Proceedings against executors and administrators — Application for removal – two testators, a husband and wife, leave very substantial estates involving multiple real property investments in equal shares to their four children (and to family members of one of the children), two daughters and two sons – the testators appoint their two daughters as executors of each of their estates – probate of both wills granted to the daughters – one son complains of lack of transparency and maladministration by the daughters/executors in respect of both estates – son seeks revocation of the grants of probate and the appointment of independent executors as final relief – the daughters/executors contest the son’s claims of maladministration – urgent proceedings brought in the duty list involving contested allegations of estate assets being at risk of loss – what interlocutory relief should be given – whether in the circumstances the proceedings should be adjourned with directions – whether an independent administrator should be appointed in place of the executors – whether a special administrator should be appointed to aspects of the administration of the estates.
Legislation Cited: Civil Procedure Act 2005, s 26
Planning and Environment Act 1987 (Vic), s 107(b).
Succession Act 2006, Chapter 3
Uniform Civil Procedure Rules 2005, rr 31.46
Cases Cited: Baldwin v Greenland (2007) 1 Qd R 117
Bates v Messner (1966) 67 SR (NSW) 187
Hungry Joe Productions Pty Ltd atf The Hungry Joe Trust & Anor v DCF Lending Pty Ltd & Anor [2026] NSWSC 920
In the Goods of Loveday [1900] P 154
Mavrideros v Mack (1998) 45 NSWLR 80
Morgan v MacRae [2001] NSWSC 1017
Nobarani v Mariconte (No 2) (2018) 92 ALJR 1031
Upton v Downie [2007] NSWSC 1095
Category: Consequential orders
Parties: Plaintiff/Applicant: John Anthony Sultana
First Defendant/Respondent: Claire Jane Sultana
Second Defendant/Respondent: Michelle Ann Voss
Third Defendant/Respondent: n/a
Representation: Counsel:
Plaintiff/Applicant: J. Brown; N. Benecke
Defendants/Respondents: F.F.F. Salama, M. Short
Solicitors:
Plaintiff/Applicant: D. Carbone, Sydney Law Practice
First and Second Defendants/Respondents: M. Mobberley, Makinson d’Apice lawyers
File Number(s): 2026/00367773
Publication restriction: No
Through energy and enterprise, Anthony George Sultana (“Anthony”) and his wife Mary Sultana (“Maria”) built a substantial property investment portfolio before they died – Maria on 5 August 2022 and Anthony on 12 February 2023. From their origins in Malta, they used cashflow from their early industry in poultry production to make strategic purchases of real property. Anthony’s estate was valued for probate purposes at more than $71 million and Maria’s over $30 million. Astutely managed, the Sultana family estimate the commercial opportunities available from the combined estates may realise well over $100 million.
But the couple’s children are enmeshed in conflict about administering both estates. The couple had four children, Victor Sultana, Claire Sultana, Michelle Voss and John Sultana. Each of the children referred to one another in these proceedings by their first names. For convenience and without intending any disrespect, the Court will in these reasons refer to them and their late parents by first names.
Maria and Anthony each made Claire and Michelle executors of their wills and divided their estates equally among their four children, or their families. Anthony’s will directed that John’s equal share be partly subdivided among John’s children, Anthony’s grandchildren.
By his Statement of Claim, the plaintiff, John, accuses Claire and Michelle, the defendants, of maladministration of Anthony estate. Victor is not a party. John seeks relief: revoking the grant of probate to Claire and Michelle, that the executors give an account of their administration of Anthony’s estate, and other orders including the appointment of an independent administrator to Anthony’s estate. As the proceedings unfolded and more information emerged about Maria’s estate, John applied orally for similar relief in relation to her estate. Claire and Michelle deny any misconduct or maladministration in either estate.
John commenced these proceedings on an urgent basis in the Equity Duty List on 4 September 2026 faced with estate administration that he claims in short is incompetent, opaque and partial. The proceedings were filed on 4 September 2026 and on the available information limited ex parte relief was granted. The proceedings were made returnable on 7 September 2026 and heard further on 11 and 22 September 2026. The issue for present consideration is what urgent interlocutory orders, if any, should be made, to protect the estates before final determination of the relief claimed in respective Anthony’s estate, and to be claimed after suitable amendments to the pleadings in respective Maria’s estate.
John says that the assets of the estates are at risk and Claire and Michelle should be removed immediately as executors. Claire and Michelle say there is no warrant for taking that course, that the Court should not in substance grant what would be final relief at an interlocutory hearing and that they would be denied procedural fairness and the opportunity to prepare their case if such relief were to be granted now. They seek an adjournment to prepare their case. The essential issue facing the Court is whether sufficient is known about the gravity and the quantum of the risk of loss that the estates now face, such that some precautionary relief should be granted to ensure that the assets of the estates are not in placed in jeopardy.
Mr J Brown of counsel instructed by Sydney Law Practice appeared for John. Mr F Salama of counsel instructed by Makinson & d’Apice appeared for the executors. The case was conducted very efficiently by the legal practitioners on all sides at short notice. It is a striking example of the many cases arising in the probate list, as the market value intergenerational transfers expands, that also require commercial law experience.
These reasons now set out a narrative of some facts relevant to the interlocutory issues. In such a hearing in the duty list, the Court’s reasons cannot encompass all the relevant facts. Except where the facts are uncontentious, and many of them are in this matter, the Court’s narrative below should be understood, and is mostly expressed, as a forecast of the kind of evidence that each party proposes to adduce and the contentions that each party intends to advance at a final hearing.
Maria died on 5 August 2022 leaving a will dated 4 August 2021. Probate of her will was granted to Claire and Michelle on 30 August 2023. Maria’s will gave the whole of her estate in equal shares to her children, John, Claire, Michelle and Victor, without making any provision for her husband Anthony. This meant that her estate could be administered separately from Anthony’s estate. Anthony died on 12 February 2023, leaving a will dated 21 November 2022. Probate of which was also granted to Claire and Michelle on 16 May 2024.
Anthony’s will, like Maria’s will, made no specific gifts and directed his executors and trustees to hold his estate according to the terms of clause 7, which gave a 25 per cent share in his estate to each of Michelle, Claire and Victor (for his/her use absolutely). The remaining 25 per cent share of Anthony’s estate – generally representing John’s family interest – was divided a further 5 ways into shares of 20 per cent. One of these was given to John. The other four 20 per cent shares were given to each of John’s four children, to be held by way of a discretionary trust called a “Grandchild Trust”. Thus, John and each of his four children received 5% of Anthony’s estate. Claire and Michelle were made trustees of each of the Grandchild Trusts for remuneration set by Anthony’s will. The Grandchild Trusts were constituted as discretionary trusts.
Successful investors though they were during their lifetimes, Anthony and Maria shared only limited information with their children about their investing activities. Consequently, Michelle and Claire commenced their administration of the estates with an incomplete picture of their parents’ business dealings and property. At Anthony’s death, his estate was thought to consist of properties and cash worth $5,312,268. But additional assets of some $83,426,463.93 were discovered during the administration of his estate. When each of those additional assets were discovered and how they were discovered is unclear on the evidence adduced so far.
A similar picture emerged in the administration of Maria’s estate. In addition to the assets and their values disclosed in the grant of probate from Maria’s estate, of $37,068,603.13 a further $21,010,000 was subsequently discovered by her executors. The timing for which and the way the additional assets were discovered remains unclear.
The limited information available from their parents about their assets undoubtedly made Claire and Michelle’s task as executors more difficult. John’s accusations of delay in estate administration need to be weighed carefully against the countervailing difficulties Claire and Michelle faced of having to discover many of these assets. These difficulties were compounded by Anthony and Maria’s business habits. The available evidence suggests that neither Maria nor Anthony were good at keeping business records and had managed their business affairs themselves without seeking much professional, family or external assistance. Anthony and Maria’s confidence in relying upon their own business acumen and resources was not entirely misplaced, given their commercial success.
Anthony and Maria sometimes invested together and sometimes separately. The overlap between their property investments was moderate. It is convenient to consider the executors’ administration of these estates by reference to their management of the principal assets in the estates about which disputes have arisen. Some of these assets were held separately by Anthony and Maria and some of them jointly.
Despite grants of probate to the executors in Maria’s estate three years ago, and in Anthony’s estate over two years ago, John’s complaints about the estates’ administration recorded in correspondence did not lead to litigation until September 2026. John changed legal representatives to his present solicitors, Sydney Law Practice and counsel, Mr Brown, following which more pressing letters of demand were issued to Claire and Michelle in July of 2026. The perceived poor responses to this correspondence led to proceedings being launched in the Duty List on 4 September 2026.
This interlocutory contest covered a wide range of matters. It included contentions about the alleged non-production of documents and failures to account. But from the time these proceedings were launched in the Court’s judgment the executors’ response, through their new solicitors, has been as generally efficient as could reasonably be expected in the pressured circumstances of a Duty List application. But John contended that such recent efficiency as the executors displayed in this litigation did not displace fundamental difficulties in the way that the estates had been administered to date.
Until these proceedings commenced the defendants had only engaged lawyers for limited estate administration tasks. There was no single lawyer charged with legal oversight of the whole of the estates’ administration. This produced a siloed approach to estate administration which accounts for some of the failures of the executors to respond adequately to John’s enquiries before the litigation commenced. It is not necessary to go into that correspondence, because the issue has been largely removed now. The defendants have now engaged experienced succession and probate solicitors, Makinson d’Apice Lawyers, to advise in relation to the total administration of the estates and they have engaged, Mr F.F.F. Salama, counsel experienced in probate and succession law.
It is not possible in an interlocutory judgment to cover the full range of actual and potential disputes in relation to the administration of these complex estates. These reasons focus upon the principal issues which were the subject of the parties’ contentions and that have weighed prominently in the Court’s consideration of what, if any, interlocutory remedies should be given. These reasons consider under headings below the projects and assets which were the principal subjects of interest and contention at the hearing. Many other properties in the estates are not mentioned in these reasons.
Much of the information contained in these reasons derives from affidavit evidence filed by the executors concerning their administration of the estates to date, pursuant to orders of the Court. Their timely response to these Court orders, assisted by their legal representatives weighs in their favour in the Court’s consideration of what relief, if any, should be granted now. But the information revealed so far shows unresolved conflicts of interest and gaps in the administration of the estates.
Maria and Anthony appear to have become alert to the potential for rural property to escalate in value from approaching urban development, due to their experience of owing semi-rural agricultural land near Sydney. They sought similar opportunities in semi–rural areas adjacent to the Melbourne metropolis. In 2001, they purchased properties in Truganina, now a rapidly growing residential and industrial suburb about 22 km west of Melbourne's CBD. Together with their daughter Claire, they purchased properties both in Mount Atkinson Road and Troops Road, Truganina. Maria had independent agency in the acquisition of these properties, was the chief negotiator with the selling agent, and organised much of the purchase and enabling finance.
Claire says Maria asked each of their children if they wished to purchase the property with her and eventually Claire says she decided to contribute 50% of the purchase price of the Troops Road property.
Soon after the family's 2001 purchases, in 2003 and 2010 the Victorian Government made planning announcements which reclassified part of the Troops Road property for public acquisition.
Claire says that in about 2021, she, Maria and Anthony tried to sell the Mount Atkinson Road and Troops Road properties as a package to a developer for a combined purchase price, initially without any apportionment of the purchase price between the two properties.
Claire says that at about the time of the 2021 sale, she noticed that the ownership details on the title of the Troops Road property did not match what she claims were her actual financial contributions to that property. The Troops Road title showed her as holding only a 30 per cent interest in that property. She claims she paid 50 per cent of the acquisition price. Claire says that before her parents died, they agreed with Claire that the title of the Troops Road property would be rectified to reflect their true respective contributions to its acquisition, or at least it was agreed that Claire would receive 50 per cent of the sale proceeds of the property, notwithstanding the different percentages shown on the title of the property.
Claire says that on 2 February 2022 a document was signed between her parents and herself recording an agreement as to the following matters:
the $145 million sale price of the two properties, the Mount Atkinson and the Troops Road properties would be apportioned – $91 million to the Mount Atkinson contract and $54 million to the Troops Road contact;
the proceeds of sale of the Mount Atkinson property would be divided 50/50 between Anthony and Maria;
the proceeds of sale of the Troops Road property would be divided 25/25/50 between Anthony, Maria and Claire; and
transaction expenses would be borne as to 75 per cent by Maria and Anthony and 25 per cent by Claire.
The precise circumstances in which this document was signed are presently obscure and may potentially be contested by the estates.
Claire also says that it was agreed between herself and her parents that the proceeds of sale of the two Truganina properties would be paid into an ANZ bank account that she operated and that her parents’ share of the proceeds of the two properties would be paid out of that account. She explains that the basis for this arrangement was that it was not unusual for her to take on responsibility for aspects of her parent's financial affairs, as they were then in their late 70s.
In the first half of May 2022 sales of the Troops Road and Mount Atkinson Road properties settled. Proceeds of $37,165,364.63 from the Troops Road property and $93,325,216.34 from the Mount Atkinson Road property were paid into Claire’s ANZ account. Claire says that in accordance with their agreement she distributed these proceeds between herself and her parents, retaining approximately $27 million in respect of the sales; the precise accounting for this is presently uncertain.
Claire has a conflict of interest between her role as an executor of the estate and her position as a counter party in the transactions in relation to the Troops Road property. The estate has an interest in testing the validity of several of her claims: elevating her interest in the Troops Road property from 30 per cent to 50 per cent; and the making of the agreement to apportion the price of the Mount Atkinson and the Troops Road properties. The estate also has an interest in ensuring that Claire has properly accounted for her management and application of the proceeds of sale of these two Truganina properties. Dealing with this conflict of interest would involve examination of the funding for the acquisition of the Troops Road property and the documentary and other evidence recording agreements between Claire and her parents.
There is yet no evidence that Claire and Michelle have mismanaged this conflict of interest. But there is no evidence that the defendants have recognised that there is such a conflict or yet given any serious attention to putting in place appropriate measures for managing and dealing with the conflict in the future.
Claire says that she and her parents agreed to split one third each any compensation payable by the Victorian government for the loss on sale of the Troops Road property. Claire says she understands that the compensation is payable pursuant to Planning and Environment Act 1987 (Vic), s 107(b). The law firm, Maddocks, which practices across multiple jurisdictions, acted for the Sultana family on the sale of the Troops Road property. Maddocks appear to have furnished early advice about a potential claim for compensation from the Victorian government and about giving notice of such claim. Claire says that Maddocks advised her that the total compensation potentially payable by the Victorian government might be as high as $60 million, of which she and each of the estates of her parents would be entitled to a potential $20 million.
Although the sales of these properties settled over four years ago, in May 2022, progress in pursuing any available compensation claims on behalf of both estates has been fitful. If the advice received from Maddocks correctly records the potential value of this compensation claim, then it represents a very significant asset of the combined estates. It also has embedded within it the need to manage the conflict of interest between Claire and the estates: Claire’s share of the compensation is a derivative of her share of the Troops Road property.
Maddocks appear to have lodged a claim for compensation on 14 July 2023. The Victorian Department of Infrastructure and Planning (“VDIP”) confirmed its receipt of notice of the Sultana family claim for compensation by a letter dated 25 July 2023.
The VDIP 25 July 2023 letter raises requests that the evidence suggests remain unaddressed in over three years. The VDIP requests further documents from the estates, sale documents, information about payments under the sale contracts and the agreements connecting the Mount Atkinson Road and Troops Road properties. The letter then concluded that “upon receipt of the materials sought above, I can advise you further as to the likely timing of the authorities’ response to the claim, I look forward to your earlier response”. The VDIP letter then invited the Sultana interests to have a conversation with a Departmental officer about the claim.
The defendant’s affidavit says nothing about what has happened since that time in response to the VDIP 25 July 2023 letter other than that:
“The Department of Infrastructure and Planning suggested that the executors could liaise with the Department directly as to the compensation claim, we have ceased to use Maddocks and have since been dealing with the Department directly, however anticipate engaging further legal advice to progress this claim, giving the nature of the scheme it is unclear what amount if any will be paid as compensation to each of the deceased, Maria and myself”.
This affidavit evidence reveals a theme throughout the executors’ case – that they prefer to conduct negotiations themselves rather than engage lawyers and other professional experts. But this kind of self-help approach in such a large estate with many different assets, many of which require specialised management, is inherently risky.
The lack of progress of this claim is disturbing. As counsel for John pointed out, there are commonly limitation periods in legislation allowing compensation for the acquisition of land against Government Departments. The section cited by the executors, the Planning and Environment Act 1987 (Vic), s 107 itself contains the following subsection:
“A claim for compensation under this section must be made within two years after the removal of the reservation or cancellation of the declaration or the lapsing of the amendment”.
Exactly when the running of the limitation period was triggered and whether correspondence with the VDIP alone can, or whether court proceedings are necessary, to initiate a statutory “claim” is unclear to this Court on this interlocutory application. But the statutory provision indicates that there is at least the risk that the limitation period has run out or may run out. If the limitation period has run out, it may need to be the subject of an application for extension to the relevant Minister. Examination of whether what was done to advance this statutory claim was adequate, would raise the potential for a conflict of interest between the executors and the estate.
But of more immediate concern, the evidence before the Court indicates that even if the letter lodged on 14 July 2023 qualifies as claim for compensation, the claim has not been actively progressed for over three years. This potentially indicates that the executors (a) lack confidence in being able to deal with the evidence and issues to advance the claim for compensation, (b) lack commitment to advancing the claim, or (c) are inactive on this claim due to preoccupation with the detail of other issues of estate administration. Whatever its cause, this yet unexplained delay must be quickly remedied to avoid the potential for loss to these estates.
The evidence revealed significant delays in obtaining probate of Maria’s estate after her death on 5 August 2022. Claire has a reasonable explanation for the delay. Within days after Maria’s death, Anthony became very unwell and needed close care by family members, including Claire and Michelle. He ultimately died on 12 February 2023, and probate of Maria’s estate was obtained on 30 August 2023.
Claire says that she and Michelle engaged McDonnell Schroder, who were the solicitors engaged for the making of the wills to undertake the applications for probate. McDonnell Schroder initiated and progressed the probate applications, but once probate had been obtained that firm did not advise the executors on estate administration. The lack of a single firm dealing with estate administration led to confusing and inadequate responses to John’s prelitigation correspondence which understandably heightened his concerns about the quality of the executors’ administration of the estates. The Court stabilised the position on 7 September by making an interim direction for the proceedings to be relisted if the executors seek to terminate the retainer of the estates’ present solicitors.
After probate of Maria’s estate was granted, instead of engaging solicitors, Claire engaged Boss Private Clients (“Boss”) a Melbourne-based private financial and business advisory firm about “the best way to protect Maria’s and the beneficiaries’ assets”. Boss may have had access to legal advice but that was not their professional specialty.
Boss advised that a family trust which had been set up during Maria’s lifetime could be used as an investment vehicle for Maria’s estate. What happened next is described in Claire’s affidavit in the following terms:
“Following this advice an MGS Family Trust sub-account was created and we requested McDonnell Schroder to transfer all funds from my mother’s estate to be transferred into the MGS Family Trust account.
Prior to the transfer of the funds we spoke to all beneficiaries, including the plaintiff and they each confirmed they agreed with this course of action. A copy of a letter from McDonald Schroder confirming this arrangement is attached.”
“We acknowledge your instructions and the confirmation of the beneficiaries to transfer the balance of funds held by us by cheque to the trust MGS One Nominees Pty Limited. We now attach our Trust Statement showing the breakdown of payments received for your records. We note that you are to collect the cheque from our office on behalf of the beneficiaries.”
Not long before her death Maria sought advice from Sladen Legal, another firm of lawyers, and Boss to establish the MGS Family Trust (“the MGS Trust”), for the purposes of property investment, appointing MGS One Nominees Pty Ltd as trustee (“MGS One”). The MGS Trust appears to have been set up in the expectation Maria may not have long to live. John’s case presents the MGS Trust as a structure which might allow Maria’s assets to continue to be invested under the control of Michelle and Claire, notwithstanding the terms of Maria’s will that are simple enough and would require distribution of her estate to each of the beneficiaries. John contests the transfer of the assets of Maria’s estate were into the MGS Trust.
The available evidence on this subject leaves the Court with a puzzling and incomplete picture. Maria, Michelle and Claire were the initial directors of MGS One, with Michelle and Claire continuing as directors after Maria’s death. Michelle and Claire hold half the issued capital of MGS One. The MGS Trust is a discretionary trust listing as primary beneficiaries Maria, Claire, Michelle, John and Victor. The joint appointors of the MGS Trust are Claire, Michelle, John and Victor who are required by the trustee to act unanimously. This structure means that MGS One which is controlled by Michelle and Claire will administer the MGS Trust unless there is a family consensus to change the trustee. Claire and Michelle in effect hold a veto over John seeking to change the trustee. MGS One retains sole discretion as to how the income and capital of the MGS Trust should be distributed.
On the face of it the transfer of the assets of Maria’s estate to the MGS trust is contrary to the terms of her will. The McDonnell Schroder letter of 20 February 2024 to Claire, records the giving of instructions to transfer estate assets to the trust account nominated by MGS One. This was said to be upon Claire’s “instructions and the confirmation of the beneficiaries to transfer the balance of the funds”. But the executors’ evidence does not contain any evidence of the formal written consent of all Maria’s beneficiaries to this transfer contrary to the terms of Maria’s will.
The transfer disadvantageous to John and improvident. It places beyond his control the capacity to deal with his entitlement to one quarter of his mother’s estate. It would be expected that evidence of the executors’ arm’s length dealings with John after independent advice would be the essential pre-condition for upholding such a transfer. Normally John could anticipate receiving his share of the estate within 12 months. None of the evidence one might expect to support the validity, integrity and proper processes associated with this transaction is yet available if it exists.
John has put into evidence an undated deed (Exhibit A), which appears to assume that Maria’s residuary estate would be distributed in accordance with terms of her will and that the beneficiaries direct the executors and trustees to so distribute Maria’s estate. Exhibit A not only reports to bind the executors by deed but by expresses as consideration releases of claims against one another, including under Succession Act 2006, Chapter 3. If this deed was validly executed, it appears to found a contention at final hearing on John’s behalf that the executors have also distributed the estate to the MGS trust in breach of their obligations under the deed.
The defendants’ evidence about the transfer of Maria’s estate assets to the MGS Trust is strikingly informal. It is that “we spoke with all the beneficiaries, including the plaintiff, and they each confirmed they agreed with this course of action”. This may not be a sufficient defence to such an action to unwind that transfer. The executors may be defending their own conduct in distributing Maria’s estate from allegations both of breach of their duties as executors and trustees of her estate and in breach of the agreement, Exhibit A.
John tenders Exhibit B, which appears to be a trust statement for Maria’s estate issued to Claire and Michelle dated 20 February 2024 indicating that funds in Maria’s estate totalling $24,896,820.49 were transferred between 6 December 2023 and 20 February 2024 to the MGS trust. John says these transfers were an unauthorised breach of trust. On the available materials there is a case to answer in respect of how these funds were applied.
But the executors may have an explanation of what has occurred in transferring John’s interests in Maria’s estate to the MGS trust. They complain they have not had sufficient time to prepare themselves, a matter which the Court considers in deciding what it should do in this application.
The Court will make a direction with these reasons requiring the executors to declare whether they are going to unwind the transfer of John’s share of Maria’s estate to the MGS trust. If it is not going to be voluntarily unwound and they propose to defend the transaction, it is likely that the Court will direct that they obtain judicial advice before taking any steps in defence.
Claire says that Maria "paid deposit for contracts" on the purchase of two properties in Craigieburn, Victoria "prior to her death." Claire’s affidavit does not explain whether these contracts to purchase the Craigieburn properties were binding before Maria’s death on 4 August 2022. The evidence records that contracts were not exchanged until three weeks after her death on 26 August 2023, with settlement scheduled for 28 October 2023. Claire says that the MGS Trust did not have sufficient funds to complete the proposed transaction so "at this time the deceased [Anthony] gave $7 million to the MGS trust to complete the purchase”. The purchase of the Craigieburn properties settled relatively quickly and are still held in the name of the MGS trust.
These facts raise several issues in the administration of both estates. MGS appears to have exchanged contracts for the Craigieburn properties funded almost entirely by monies from Anthony. His estate would appear to have a maintainable claim that although purchased in the name of the MGS Trust, these properties are now held on resulting trust for Anthony’s estate. Maria also appears to have supplied some of the funds and her estate may also have a lesser claim against the MGS trust, because the opportunity to purchase a property came through Maria's estate.
John’s rights to distribution in capital in Maria’s estate is different from his being a mere object of a discretionary trust, the MGS trust, controlled by Michelle and Claire. With respect to this transaction, the executors are also in a position of conflict of interest between their roles of executors of Maria's estate, executors of Anthony's estate, and their position as directors of the trustee of the MGS trust. Well before any hearing for their removal the executors will need to show cause as to how they are likely to deal with these multiple conflicts. If there is an active contest about the official entitlement of the Craigieburn properties as between any of the estates and MGS, it is difficult to see how the executors will be able to manage this conflict. John has urged that receivers be appointed to the assets of the MGS Trust in part because of these conflicts. But whether the Court should do that at this time is complicated by another development.
MGS One has recently been made aware that a new Victorian Government is considering constructing a new power station in land adjacent to the Craigieburn properties. As a result, the MGS Trust is considering joining with other adjacent landowners to sell their properties as part of a larger offering either to the Victorian Government, or even if the power station does not proceed, to other developer investors.
Claire says that she has received verbal advice that if sold under right conditions the Craigieburn properties could sell for as much as $80 to $100 million. She states:
"We understand that achieving this value for the land is very time sensitive", in part because the opportunity for power heavy industry such as data centres may not persist and she seeks for the MGS Trust to be allowed to continue discussions. This is a factor that the Court has taken into account in the course that it has taken with respect to this land. But this position may only be temporary.”
During his lifetime Anthony advanced $7 million to several development entities that his son, John, controlled to assist John in conducting property developments. These advances took place between 2017 and 2023. Two entities referred to in the proceedings as the “Kensington Park entities” which were development lands in Tallawong, a Sydney suburb recently opened by new development and infrastructure associated with the Sydney Metro.
The executors of Anthony’s estate have called in this debt from John in circumstances that raise as many questions as they might answer. Claire says that the occasion for calling in this debt was advice from Mr Laurie Cauchi, who is described as Anthony’s “advisor” from the Landen Property Group. As will be seen later in these reasons, the Landen Property Group (“Landen”) is a very substantial debtor of the estate. That the executors would be taking advice about estate administration from a debtor to the estate, indicates the potential for lack of objectivity in dealing with that substantial debtor of the estate.
Mr Cauchi’s advice to the executors was quite detailed. It appears to have been given in the context of assisting the refinancing of the developments of the Kensington Park entities. His advice included a recommendation, apparently followed by the executors, that it is evident from correspondence sent by Mr Cauchi on 12 February 2024 to Mr Eade, a lawyer drafting documents for the executors. Mr Cauchi’s advice to the executors was to ensure a degree of control over the execution of the property developments by the Kensington Park entities by quarantining funds distributed to John from Anthony or Maria’s estates. Mr Cauchi suggested that any funds distributed to John would be placed in a “special purpose bank account”, which would require the joint signatures of Michelle, Claire and John for any transactions to apply the funds. This would effectively have given Michelle and Claire a veto over John’s expenditure of these funds. Mr Cauchi describes the funds quarantined under this arrangement and an associated caveat as “a crucial step to ensure the financial interest of the estates”.
In the end, the Court understands from the evidence that the Kensington Park entities, John, and the executors entered a deed to this general effect (“the Kensington Park deed”). To the extent John had legal advice about his entry into the Kensington Park deed, which was arguably an improvident transaction, and whether the executors were aware John had taken legal advice, is unclear on the available evidence.
Mr Brown will argue that the debt owed by the Kensington Park entities for which John was ultimately responsible, could have been paid off long ago had the estates been impartially managed. Anthony’s estate’s interest in the Kensington Park entities’ developments was merely as a mortgagee. John would have been able to repay the whole $7 million, if John had received a distribution from Maria’s estate, rather than his interest being transferred to the MGS Trust.
It is possible that this debt has already been substantially reduced. Some attempt was made in July 2024 to distribute funds from the MGS trust. Each of Michelle, Victor and Claire were paid $5,023,566, distributed from the MGS trust. John was paid $2,393,302. The precise financial logic behind this is obscure and the accounting evidence is difficult to understand. But the distributions totalled approximately $18 million. John received a lesser sum because monies which would otherwise have been paid to him were applied to reduce his debt to Anthony’s estate or to quarantine funds for that purpose. Financial calculations at the time appear to show that a substantial part of John’s debt was reduced or secured in this way.
But the effect of all of this was that John’s capacity to cause the Kensington Park entities to repay the debt they owed to Anthony’s estate and to conduct the Kensington Park entities’ developments on his own terms was left under the effective control of the executors. This may reflect their own views that his financial and management capacity were of a lower order than their own. But it is not obviously consistent with the impartial administration of these estates for the equal advantage of all beneficiaries. This will be an issue that they will have to face at any final hearing concerning their removal as executors if it is not resolved first.
At the time of the Kensington Park deed, Claire at least understood from her then advisors, Boss, that adjustments in relation to debts owed by John to Anthony’s estate could be made through Maria’s estate. Claire’s opinion about this appears to have changed based on her existing legal advice. Part of the difficulty seems to be that distributions have already been made from Maria’s estate to the MGS trust, and her estate and longer has the capacity to distribute funds which would allow John to satisfy his obligations to Anthony’s estate.
This is a pointless dispute which the parties should be able to put behind them quickly from their available funds. To do so may demonstrate degree of mutual goodwill that may provide a platform for resolving deeper disputes in the administration of these estates. Michelle is of the view, and has been advised recently, that due to the size of the assets in Anthony’s estate, that future distributions should enable this issue to be resolved.
The Court has a faster timetable in mind. This issue should be resolved by way of a limited mediation, if it is not immediately agreed. It is highly desirable for these parties to separate out and resolve at least part of their dispute. The Court will order a mediation of this issue under Civil Procedure Act 2005, s 26, unless this issue is quickly resolved. The continuation of this debt obligation aggravates hostilities between these parties.
Possible solutions include returning some of the monies transferred to the MGS trust back into Maria’s estate on a without prejudice basis. Then the executors could distribute to John from Maria’s estate sufficient funds to be able to meet the obligations of the Kensington entities to Anthony’s estate. Alternatively, distributions from Anthony’s estate should be able to be accelerated sufficiently to meet the obligations of the Kensington Park entities. This would enable John to complete his property developments through the Kensington Park entities himself and independently other family members. If either of the estates has any other interests in these entities (and it is not obvious on the existing evidence that they do) a mechanism can be set up to protect those interests.
At the time of his death, Anthony was the sole director and secretary of Starline Group Pty Ltd, the trustee of two Starline Property Trusts. The Starline Trusts owned two properties, one in North Gosford and one in Rouse Hill, at the time of Anthony’s death, with a combined value of approximately $3.3 million.
Anthony set up the Starline Trusts in February 2014. The principal schedule to the Starline Trusts shows that Anthony owned all the issued units in each trust and owned a 100 share of the trustee, Starline Group. The executors have constituted themselves as directors of the Starline Group and sold the two properties in the Starline Trust. The executors say that these trusts are now ready to be wound up.
The executors say that at the time of Anthony’s death they believed the Starline Trusts were discretionary trusts and did not form part of Anthony’s estate. The executors therefore did not disclose their value as part of the probate application.
They say they later determined that the Starline Trusts were unit trusts, and the beneficiaries were advised “verbally” of the error and of their later inclusion in the assets of Anthony’s estate. The error is very difficult to understand as a moment’s reading of the two trust deeds shows that they are unit trusts, not discretionary trusts. The failure of the executors to notice this obvious fact, or to seek advice about this demonstrates a recurring theme in the evidence: the executors have been reluctant to seek legal advice to assist in the administration of the estate. The Court’s directions have sought to neutralise this problem.
Claire says that she and John created a trust called “the JAS One trust” with the intention that John’s inheritance from Maria’s estate would be transferred into the trust and paid to him. This JAS One presumably relates to that part of Maria’s estate which has not already been dealt with by transfer to the MGS trust. The JAS One trust deed was prepared by solicitors in Melbourne, Sladen Legal and is signed by Claire, not by John. The objective evidence of John’s assent to it is limited.
The primary beneficiaries of the JAS One trust, a discretionary trust, the appointors for which are Claire and John, describe an unnecessarily convoluted way to pay to John any part of John’s inheritance from Maria’s estate. The structure gives Claire a substantive veto over any distributions to John. How much John knew about the terms of the JAS One Trust deed are unclear. Unless John’s assent to his share of Maria’s estate being dealt with in this way was unequivocal and supported by independent legal advice, he will argue that the creation of the JAS One trust was a breach of trust by the executors or an improvident and unconscionable transaction.
There is not yet evidence before the Court that in the creation of the JAS One trust that John had access to independent legal advice or that the executors sought to ensure he had independent legal advice. As with the MGS trust, early isolation of the issues with this trust is desirable.
The Court is prepared make a direction requiring the executors to declare whether they propose to unwind the creation of the JAS One trust. If it is not going to be voluntarily unwound and they propose to defend the creation of the JAS One trust, it is likely that the Court will direct that the executors obtain judicial advice before taking any steps in defence. Quick action to resolve discrete issues such as this may be possible by mediation.
During his lifetime, Anthony made loans to entities associated with the Landen Property Group Pty Ltd ("Landen"). Anthony appears to have formed a close personal advisory relationship with Mr Cauchie, one of the senior property managers of Landen. Anthony had a close business relationship with several personnel at Landen, but a relationship of trust, confidence and friendship with Mr Cauchie.
Anthony's loans to Landen entities had several notable features. The first is their size. The executors’ current estimate of the sums Anthony advanced to Landen is approximately $45 million. Another notable feature is that the loans were not made to Landen itself, but to various funding trusts related to individual properties that Landen was developing. The loans were not to land owning entities or the developer entities themselves. The third notable feature is that despite extensive dealings with Landen, the executors appear not to know what the balance sheet position of these trusts is, or their formal relationship to Landen, or whether the solvency of these entities is guaranteed by Landen.
The estates’ documentation of these substantial loans well below basic commercial standards of prudence. The executors have gathered some loan agreements from Anthony’s papers from which the estimated figure of $45 million in advances has been calculated. But whether all the loan advance agreements are available to the executors is unclear. Such loan agreements as can be found among Anthony’s papers have surprisingly not yet been cross-referenced against the deceased’s bank statements. Such cross-referencing would have given a better picture of the quantum of these advances, including whether any amounts have been repaid. The executors’ evidence does not include any statements of account from Landen showing the current balance due to Anthony on each of these loans.
The total sum due from Landen with interest may be more than the estimate of $45 million. Some of the advances were made years before Anthony's death and unless regular interest payments have been made, total as any interest could be substantial. The Court immediately granted leave to the parties to issue subpoenas to Anthony’s bankers so the parties could for the first time secure objective evidence about the quantum of Anthony’s advances to Landen. But by the time of the hearing the picture was still unclear.
The Court is concerned not only about the lack of information about Landen’s obligations to Anthony’s estate but also about the executors’ dealings with Landen in relation to these debt obligations. The executors have failed over three years to ascertain the quantum of this substantial asset. This is a startling deficiency in the administration of this estate. One of the first duties of an executor is to ascertain the extent and value of estate assets. On the available evidence this does not appear to have been seriously attempted by these executors with respect to this asset.
This deficiency is compounded by, and perhaps explained by, the executors’ dealings with Mr Cauchi and other executives of Landen after Anthony's death. The executors appear to have accepted Landen's persuasion that the estate should not press for repayment of its loans, lest that trigger financial instability within Landen. At the same time the executors continued to take advice from Mr Cauchie about aspects of the administration of Anthony and Maria’s estates, which tends to show they are repeating the kind of relationship of trust and confidence that Anthony had in Mr Cauchi and other Landen executives.
In contrast to this picture, in the Court’s view an objective and independent assessment of Landen’s obligations to Anthony’s estate is urgently required, whatever other orders are made. The estate needs quickly to understand the scope of Anthony’s advances to Landen, the likely recoverability of those loans from the special purpose trust entities or any other entities controlled by Landen, and whether Anthony was in a position of special disadvantage in relation to Landen’s principals when making the loans among other questions.
The executors are not taken steps to explore any of these matters. Claire's explanation for this is that the executors have been "negotiating with Langdon to pay the outstanding amount for the past three years" and that the timeline is affected by Langdon's large business operations which "can take significant time to finalise in order to allow repayment in full”.
At the Court's insistence when the matter came on urgently, orders were made for a report from Cornwalls Solicitors to assist in recovery action against Landen on behalf of the estate. That will be a useful tool to advance this issue for the estate in the near term. A letter of demand was issued in August 2026 by Cornwalls to Landen. But this demand coincided with John's agitation in relation to the administration of the estates.
Very little has been done to ascertain the value of this part of Anthony’s estate or the risks of loss of estate assets. Whatever happens with the rest of the present application in the Court’s view this requires urgent action.
When the matter first came before the Court on an ex parte basis on 4 September 2026, the Court made orders preventing the defendants dealing with shares in Starline, dealing with the proceeds of sale of a property in Rouse Hill and from disposing of or dealing with assets of Anthony’s estate.
On the return of the Statement of Claim and the Motion on 7 September 2026, the Court made orders requiring the executors to serve an affidavit setting out the assets of both estates and other information about estate transactions and holdings of the estates’ liquid funds, which would assist the Court in fashioning further relief. The defendants were also ordered to be present to answer any questions on that affidavit. Makinson d’Apice Lawyers represented the defendants on 7 September 2026, which as the Court has said, resulted progress from the executors’ ad hoc engagement of solicitors for specific tasks which had been the previous practice in these estates. The proceedings will be relisted if Makinson d’Apice are instructed to cease to act for the defendants.
On 11 September 2026, an injunction against dealing with estate assets was extended to cover Maria’s estate and was extended over certain funds distributed from Anthony’s estate. Orders were also made for the executors to obtain a confidential report setting out the strategy options for dealing with collecting the debts claimed to be owed by Landen to Anthony’s estate. A return date for subpoenas was also set to allow the executors to use the Court’s compulsory processes to obtain more information, particularly from financial institutions to assist administration of these estates.
Finally at the hearing on 22 September 2026 procedural contests took place between the parties about aspects of the working out of and continuation these orders. Late service of the report from Cornwalls was the subject of complaint, as was an alleged failure by the executors to use the opportunity afforded by the Court to issue subpoenas and inspect documents. In response the executors submitted the timetable was tight, which it was.
The evidence that emerged in the interlocutory proceedings makes the Court cautious about the objectivity with which the executors are pursuing their duties. Two examples of this will suffice. In July this year John’s new solicitors, Sydney Law Practice, significantly intensified the pressure on the executors to provide accountability for their actions to John in the midst of those demands.
About a week before John commenced these proceedings, the executors distributed from Anthony’s estate $1 million to each of Michelle, Victor and Claire and $200,000 to John. The precise reasons for the distributions of these amounts at that time is still a subject of contest. John contends that the executors were attempting to get ahead of any anticipated restraints on their dealings with the estate. The executors denied any wrongdoing or inappropriate distributions. The timing of these distributions is yet to find a convincing explanation. But they were some of the largest for some time.
The other concerning matter is the executors’ written allegations of John becoming paranoid in these dealings with the estate. The Court need not deal on the detail of this contention other than to observe that an estate which is being administered objectively through legal representatives on both sides should not have to descend into contests about such matters. This is yet another sign that the executors’ failure to engage lawyers comprehensively with oversee the administration of these estates has placed the estates at a disadvantage under the superintendence of these executors. This has now been substantially cured by the Court’s orders.
But the course of proceedings revealed one other concerning matter – about the position of John’s children. This is considered in the next section.
The transactions already examined in these reasons reveal a need for John’s children, Anthony and Maria’s grandchildren, to be separately represented in these proceedings. They are all still minors. Their parents, John, and his former wife, are separated or divorced. They may have differing views about the children’s future best interests.
Anthony’s will appoints the executors as trustees of the Grandchild Trusts, the testamentary trusts for the grandchildren. The hostility between John and the executors makes the executors’ control of the Grandchild Trusts potentially not in the best interests of the grandchildren. Reconciling the different outlooks of the executors, John and his former wife about the best interests of the children is unnecessarily complicated by the constitution of the Grandchild Trusts to the possible disadvantage of the grandchildren.
Moreover, events have already occurred indicating that the grandchildren’s financial interests in the Grandchild Trusts are potentially being affected by events in relation to these proceedings. John has requested that he have access to his children’s share of Anthony’s estate, so that properties which John’s family, including his children, had used could be retained. This proposal was rejected by the executors.
The executors say that when they made distributions from Anthony’s estate they did so into trust accounts which they set up in the grandchildren’s names at the same time as making distributions to other beneficiaries of John’s estate. It became clear from the course of evidence that neither John nor his former wife appeared to know much about the setting up of these accounts or the funds thereby potentially made available to their children. The evidence suggests that the executors’ communication about this has been suboptimal.
Each of the grandchildren is entitled to a significant capital asset under Anthony’s will. On the estimate of $71 million as the net value of Anthony’s estate, each grandchild is entitled to a little over $3.5 million. Their combined interests in Anthony’s estate is significantly greater than John’s. As the grandchildren’s interests and John’s are not necessarily aligned and may be the subject of contest between John and their mother, the Court is prepared to make orders for the grandchildren to be separately represented in these proceedings.
The parties should be able to agree upon a suitable representative for them as a class. If not, the Court will appoint an independent representative to act in their interests in consultation with their parents. Ideally their parents should agree upon who should represent them. Once that appointment is made the grandchildren can decide whether they want to contest the continuation of the defendants as trustees of the Grandchild Trusts.
In the circumstances outlined above, John sought immediate revocation of the grant of probate in Anthony’s estate and Maria’s estate. The pleadings do not yet cover the grant of such relief in Maria’s estate. But the argument proceeded on the basis the necessary amendments would occur, and the amendments should be provided. Mr Brown of counsel pressed for this relief firmly on 22 September 2026.
Mr Salama of counsel, for the executors, firmly resisted and said that the executors had had insufficient time to prepare for a hearing involving the grant of such extensive interlocutory relief and they sought an adjournment to allow the contest about revocation of the probate to take place. Mr Salama referred to Nobarani v Mariconte (No 2) (2018) 92 ALJR 1031; [2018] HCA 49 submitting that a refusal to grant an adjournment would deny the defendants procedural fairness.
Mr Brown countered by submitting that the matter is urgent as the assets of the estate were at risk. He also points to non-compliance with some of the Court’s procedural directions. These reasons now consider the applicable law before weighing the relevant considerations.
The relevant legal principles may be concisely stated. The Court has inherent jurisdiction to revoke the grant of probate: Bates v Messner (1966) 67 SR (NSW) 187 and I**n the Goods of Loveday [1900] P 154 at 156. In exercising this jurisdiction the question is “whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reason of acts or omissions on the part of the executor or by virtue by matters personal to him, for example, mental infirmity, ill health or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform: Mavrideros v Mack (1998) 45 NSWLR 80 at 108 per Sheller JA.
It is always appropriate and necessary for a Court, when asked to exercise this jurisdiction, to have regard to the testator’s wishes as to the identity of an executor or a trustee and the overriding assumption must be that the testator thought the person chosen was worthy of trust “even when well aware when making a choice of existing hostility [from family members] towards the chosen executor or trustee, or of other grounds for doubt about the wisdom of the choice”: Baldwin v Greenland (2007) 1 Qd R 117 at 129-130.
A mere conflict of interest and duty will not result in restraint or removal of a personal representative; it must be shown that the personal representative prefers interest to duty and intends to neglect duty: Morgan v MacRae [2001] NSWSC 1017 at [25] and Upton v Downie [2007] NSWSC 1095.
The plaintiff asks for urgent interlocutory relief and the continuation of existing relief granted. The defendants seek an adjournment and a later hearing. The parties’ submissions for each of these outcomes are not fully set out here but are summarised in substance in the Court’s consideration below. The exercise of the Court’s discretion in the circumstances is broad and is also informed by the principles that would apply to the grant of final relief and the balance of convenience frequently considered in relation to the grant or the continuation of interlocutory junctions, a concept which is often better expressed as the balance of doing an injustice, as I recently discussed for example in Hungry Joe Productions Pty Ltd atf The Hungry Joe Trust & Anor v DCF Lending Pty Ltd & Anor [2026] NSWSC 920 [10]-[15].
Several considerations weigh generally in favour of the adjournment sought by the defendants. In the short term they are best placed to deal with aspects of the estates particularly continuing negotiations such as in respect of the aggregation of the Craigieburn properties and should generally be allowed to continue. It would be unusual to grant what is in effect the final relief, for which John contends, after the matter has only been before the Court for about three weeks.
Moreover, granting the relief which John seeks now risks alienating and placing the defendants at a distance from the administration of these estates, the two people who know most about both estates. It would take any independent executor some time to be fully appraised of the administration of these estates. Both executors are tertiary educated, have experience in business and are more qualified than the average lay executor.
The orders of the Court have placed the executors under a heavy procedural burden which they have discharged reasonably well in the circumstances, which augurs well at least for their future compliance with the Court’s orders. The executors have had limited time to prepare to defend themselves.
Granting relief now would deny the executors an opportunity to show that they can address the conflicts which have been identified under a regime where they are required to engage one firm of solicitors to deal with the whole of the administration of both estates.
As the authorities require, the Court must always give weight to the testators’ preferences for the defendants to administer these estates. And the Court must give weight to the fact that those choices involve placing the defendants in a position of conflict of interest about aspects of estate administration. The key matter is how the defendants manage those conflicts. These detailed reasons have suggested many paths by which that can be done and the Court expects the parties to bring in short minutes of order to make that happen.
In considering what course the Court should take, the professional costs associated with the appointment of an independent professional administrator though significant, are not a major factor given the size of the estates.
But the Court’s detailed discussion above of the issues facing the executors raises several considerations that favour urgent action in one respect. The Court’s overall impression of these defendants is that notwithstanding their talents the size of the administration of these two estates has overwhelmed them and caused them to focus on what they find easier to deal with rather than what is less familiar to them or difficult to confront.
Principal among these difficult issues is their failure to take adequate steps to realise the Landen debt or manage this debtor – creditor relationship in a prudent manner in accordance with proper commercial standards. Both the known unknowns and the probable unknown unknowns of the relationship between Anthony and Landen raises a real risk of substantial loss to Anthony’s estate unless this relationship is now managed firmly and objectively. What is needed urgently is someone in control who has (a) no prior sense of obligation to Landen, and (b) real insight as to the subtleties of the legal and commercial risks involved in dealing with an unsecured debtor of the size of Landen. Given the Anthony’s own recondite and semi-dependent relationship with Landen, the Court gives less weight to the wisdom of the testators’ choice of the defendants to manage that relationship.
The Court will appoint a special administrator to deal solely with this aspect of the administration of Anthony’s estate – the recovery of the Landen debt. Draft orders have helpfully been provided by the parties together with the names of potential special administrators. But the Court is of the view that the selection of the individual who should discharge these functions should only take place after the parties have had an opportunity to review these reasons for decision.
It may be necessary to more closely refine the tasks that the special administrator will undertake and to set some general budgetary limits with respect to the special administrator’s work. The special administration will be limited in the first instance to a period of only six months, extendable if more time is needed. Also, it will be necessary to provide for clear lines of communication between the special administrator, the executors and the parties, which are not too onerous, but which are otherwise as transparent as reasonably possible. Given the nature of the special administrator’s task the special administrator will be able to apply to use the powers of the Court to secure information by subpoena from third parties and will have the rights of a party.
Most of the other problem issues in the administration of these estates, in the short term can be appropriately managed by detailed orders and directions from the Court requiring accountability and action from the defendants in accordance with strict timetables, at the risk that if action and accountability is not provided, grounds will be created for their replacement as executors.
These other issues can be managed by the making detailed orders. The Court will also direct the parties to bring in short minutes of order to provide detail about the following matters.
The risk of loss associated with the compensation claim for the Truganina properties is concerning. But all parties have a common interest in pursuing it. The court will appoint a court-appointed expert under the Uniform Civil Procedure Rule**s 2005, r 31.46 to report on that matter within a short timeframe to inform all parties what should be done to complete the claim and require the executors to do it at the risk of being replaced.
The executors must bring in clear plans as to how they will manage each of the conflicts of interest that have been identified in these reasons together with any other conflicts of interest which are identified by the parties.
The executors must rapidly identify whether they are going to defend the transactions involving the MGS trust and the JAS One trust or whether they are going to be wound up or managed acceptably to accommodate John’s interests and if there is a contest how conflicts of interest are going to be acceptably managed and judicial advice obtained.
Directions will need to be made for John and his former spouse to be consulted about the appointment of someone to represent their children in these proceedings so that that representative can be joined into the proceedings in the near term.
A mediation will need to be ordered in respect of the issue of John’s debt to Anthony’s estate unless the parties assure the court that it can be resolved along the lines of the structures discussed in these reasons. Other mediations to resolve discrete issues may be possible and should be explored to reduce conflict.
A regime of regular reporting by the executors to the beneficiaries should be instituted whilst these proceedings continue. This should begin to build a measure of trust between the parties and reduce the risk the executors will depart from proper standards of impartiality. Such a regime was put in place for example in Estate of Boes [2025] NSWSC 330.
In the meantime, the court’s existing orders continue. The injunctive relief will need to be varied in the near term however to facilitate estate administration and the parties should consult about variation to the form of that relief. Otherwise, the parties should prepare a program of pleadings and directions for any other matters covered by these reasons for decision or which the parties regard as convenient.
For these reasons the Court makes the following orders and directions:
DIRECT the parties to bring in short minutes of order to give effect to these reasons.
ADJOURN the proceedings for directions concerning any submissions in relation to costs and any other matters reserved for further consideration to Monday 12 October 2026 at 9:30 am, or to such other date as is arranged for the convenience of the parties with the Associate to Slattery J.
RESERVE costs.
GRANT liberty to apply.
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Sultana
Sultana & Anor
[2026] NSWSC 920
(2007) 1 Qd R 117
(1998) 45 NSWLR 80
(2018) 92 ALJR 1031