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[2025] NSWSC 1335
Supreme Court of NSW
2025-12-05
Slattery 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: The Estate of Shoushani; Shoushani v Tadros [2025] NSWSC 1335
Hearing dates: In Chambers
Date of orders: 31 October 2025
Decision date: 05 December 2025
Jurisdiction: Equity
Before: Slattery J
Decision: First defendant and other defendants referred to the Attorney General for further investigation. Funds released out of Court to the solicitors for the plaintiff to meet disbursements and fees incurred in partial compensation for legal work done to get in outstanding assets of the estate of the deceased.
Catchwords: SUCCESSION — Administration of estates — contested proceedings among siblings in relation to the administration of the estate of their mother – the proceedings settled – the first defendant, a daughter of the deceased, appointed administrator of the estate pendente lite – the plaintiffs, the first defendant’s siblings, and the first defendant herself, receive substantial funds under the settlement after the sale of estate real property – two of the plaintiffs are under a legal disability and their entitlements under the settlement were to be paid to the NSW Trustee and Guardian – solicitors acting for the first defendant on the settlement receive the funds from the sale of the estate’s real property and give control of those funds to the first defendant to be managed by her before distribution pursuant to the settlement – the first defendant misappropriates most of the funds without the knowledge of the plaintiffs and either expends them herself, or distributes them to members of her family – plaintiffs seek freezing orders and recover some of the misappropriated funds – first defendant to be removed as administrator – what further steps should be taken in the administration of the estate and in particular to recover misappropriated funds or compensation from third parties, and if so by what means – what steps should be taken to deal with the funds recovered so far, which have been paid into Court – whether any interim distributions can and should be made to any of the plaintiffs – should an order for general administration be made, or by what other means should the Court assist the future administration of this estate – should the first defendant and any other defendants be referred to the Attorney General as first law officer of the State for further investigation as the circumstances point to the likely occurrence of criminal conduct.
Legislation Cited: Civil Procedure Act 2005, ss 14, 23, Part 6, and 76 98(4)(c), 99, and 108.
Crimes Act 1900, s192E
Evidence Act 1995, ss128 and 128A
Probate and Administration Act 1898, s 73
Succession Act 2006, s 59
Supreme Court Rules 1970, Part 78, rr 50 51 and 52
Trustee Act 1925, s 63
Uniform Civil Procedure Rules 2005, rr 38.2, 54.3
Cases Cited: Atanaskovic v Birketu Pty Ltd [2020] NSWSC 573
Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244
Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270
Deputy Federal Commissioner of Taxation v Brown (1957) 100 CLR 32
Gazal v Deputy Commissioner of Taxation (No. 2) [2024] NSWSC 293
Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738
McGettigan v Coulter & Anor [2021] NSWSC 1097.
McLean v Burns Philp Trustee Co Pty Limited (1985) 2 NSWLR 623
Paycorp Payment Solutions v Peter Singyin Chai [2011] NSWSC 1632
Ramage v Waclaw (1988) 12 NSWLR 84
The Estate of Souad Shoushani [2021] NSWSC 194
Texts Cited: M. Evans, T. Power & J Power Equity and Trusts, LexisNexis, 2024, Third Parties as Constructive Trustees, [51.39] – [51.58].
K. Mason, “The Inherent Jurisdiction of the Court” (1983) 57(8) Australian Law Journal 449 at 451
Category: Consequential orders
Parties: First Plaintiff: George Shoushani
Second Plaintiff: Tony Shoushani
Third Plaintiff: Robert Shoushani
First Defendant: Camelia Tadros
Second Defendant: Alan Knock
In proceedings (2017/353766):
Third Defendant: Victor Tadros
Fourth Defendant: Rita Shimon
Fifth Defendant: Cassandra Tadros
Sixth Defendant: Toni-Lee McCaw
Representation: Counsel:
Plaintiffs: Mr F F F Salama; Mr M. Morgan
On 5 July 2024:
Second Plaintiff: Mr J Brown
Third Plaintiff: Mr A Pope
First Defendant: Mr M. Licha
Solicitors:
Plaintiffs: Ghania Dib, GDA Lawyers
Second Defendant Alan Knock: (No appearance)
Third Defendant Victor Tadros: (No appearance)
Fourth Defendant Rita Shimon: (No appearance)
Fifth Defendant Cassandra Tadros: (No appearance)
Sixth Defendant Toni-Lee McCaw: (No appearance)
File Number(s): 2017/00353766; 2018/00074492; 2018/00132531
Publication restriction: No
The plaintiffs, three adult children of the late Mrs Souad Shoushani, brought claims under Succession Act 2006, s 59 for further provision from her deceased estate and for other relief. On 8 March 2021 this Court approved the settlement of their three legal proceedings against the administrator of the estate, their sister, the first defendant, Camellia Tadros. The Court’s approval for the settlement was required, as several of the plaintiffs were under a legal disability. The settlement agreement gave the three plaintiffs substantial beneficial entitlements to the estate of their late mother, with a combined total of approximately $1.9 million.
Between 2021 and 2024 the plaintiffs became increasingly disquieted by the lack of any response from the administrator, the first defendant, to their requests for distribution of their entitlements from the estate. They could not get a clear answer as to why their entitlements were not being distributed to them. Finally, in June 2024, they turned to the Court, which in the absence of any accounting from the administrator, imposed freezing orders on her and required her to explain by affidavit, and later under questioning from the plaintiff’s counsel, why the plaintiffs were not being paid their entitlements.
A lamentable story unfolded. At a time after the March 2021 settlement which is yet to be determined with precision, the first defendant ceased to engage the solicitors acting for the estate. But before they ceased to act she instructed the solicitors to pay the estate’s funds into a bank account under her complete control. They complied with this instruction. The beneficiaries were unaware either of this instruction or of its execution. The first defendant then misapplied about 90% of the estate’s funds by making unauthorised payments benefiting herself, and it appears, some other members of her immediate family. Her maladministration of the estate has now left only a residue of a little under $170,000 for distribution. This sum was recovered solely due to the initiative and diligence of the legal practitioners acting for one of the plaintiffs in activating available legal remedies.
These reasons explain the Court’s directions in relation to the future administration of this estate and discusses aspects of the continued supervision available from the Court for the further administration of this estate and for the possible recovery of funds by the estate to the advantage of the beneficiaries. These reasons also describe the conduct of the defendants that the Court has decided should be referred to the Attorney General for consideration of possible criminal charges.
The Court held a series of examination hearings between July and November 2024, which revealed the flows of funds out of the estate. The freezing orders and these examinations halted further unauthorised activity on estate bank accounts and laid the groundwork for some recoveries on behalf of the estate. The Court then decided to consider in chambers what further orders should be made in the proceedings. There was no immediate contested issue to determine between the parties but the orders and directions that the Court has recently made should be explained so that any future administrator of the estate is better equipped to rectify the effects of the first defendant’s gross maladministration of this estate in accordance with , Part 6.
Souad Shoushani died in 2016. Proceedings for further provision out of her estate and other relief were brought by three of her children, George, Robert, and Tony Shoushani in 2017 and 2018. As all these family members have the same surname, they and their counsel generally used first names in referring to one another. Without intending any disrespect to any family members, the Court will adopt the same practice in these reasons.
These proceedings were commenced by the three brothers as follows. In proceedings 2017/00353766, George and Robert brought claims for family provision against their sister, Camellia Tadros, who had by then already been appointed as the administrator of the estate. In proceedings 2018/00132531 the estate brought a claim against Robert Shoushani for declarations that certain real property in his name was owned beneficially by the estate. Finally, in proceedings 2018/00074492 Tony made a claim for family provision out of the estate.
The settlement of the proceedings involving George and Robert required the Court’s approval under Civil Procedure Act 2005, s 76, because they were each under a legal disability. Although Tony’s settlement did not require the Court’s approval, it was interdependent with the settlement of George and Robert’s proceedings and was finalised at the same time as their settlements were approved.
The Court received extensive evidence and submissions about the wisdom and circumstances of the proposed settlements. The Court was satisfied that it should approve the compromises in respect of each of George and Robert. The confidential advice of counsel supported that conclusion and the respective tutors of the plaintiffs requested approval. The Court decided on 8 March 2021, for reasons given at the time that it would approve the settlement: The Estate of Souad Shoushani [2021] NSWSC 194 (“the 2021 judgment”).
The combined net estate was then anticipated to be worth approximately $1.6 million after various estate properties were to be sold. The parties were then about to engage in a contested 8-day hearing, which was likely to have resulted, in the Court's estimation, in only about one third of the sum of $1.6million being available for distribution to the parties. The Court concluded in the 2021 judgment that the parties would benefit from having a definite sum available to them before those legal costs were expended. A prior failed mediation had added to the uncertainty.
The settlement reached ultimately provided for significant sums to be distributed from the estate to Tony, Robert and George and to two other siblings. This appeared at the time to be a real benefit for them compared with the risk of the possible alternative outcomes had the proceedings continued. None of the parties then had any issue with the first defendant, Camellia Tadros, continuing as the administrator of the estate after the settlement was reached, as she had administered it as an administrator with the assistance of the solicitors advising the estate throughout the proceedings.
“(16) Grant liberty to apply with respect to any matter that may arise in relation to the sale of the properties or to the distribution of the sale proceeds.
(17) Order pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision under the rules of intestacy, provision be made for the Cross-Claimant/Defendant Robert Shoushani by way of one third (1/3) of 80% of the net distributable estate.
(18) Orders pursuant to section 66(1) of the Succession Act 2006 that the provision ordered in favour of the Defendant by Order 17 above be held on trust, such trust (“the trust”) to be in the following terms:
(a) Net funds remaining after deductions are to be paid to NSW Trustee and Guardian (“NSWTAG”) pursuant to s 77 of the Civil Procedure Act 2005 (NSW) and to be held on trust by NSWTAG in its’ trust capacity for Robert Shoushani until the Vesting Date.
(b) NSWTAG may pay, apply or set aside any income or capital for the maintenance, education, benefit and advancement of Robert Shoushani in such manner as NSWTAG shall in its absolute discretion think fit.
(c) The Vesting Date is the earlier of the following four events to occur in time:
(i) when the time set by the law of perpetuities expires; the trust vests and the balance passes to Robert Shoushani (or his financial manager or power of attorney, if applicable); or
(ii) the death of Robert Shoushani, to his legal personal representative; or
(iii) such earlier date as NSWTAG in its absolute discretion determines, the trust vests and the balance passes to Robert Shoushani (or his financial manager or power of attorney, if applicable); or
(iv) all capital and income have been expended.
(d) NSWTAG shall be entitled to charge and be paid out of any part of the capital or income of the Trust Fund its remuneration to the extent provided for in the NSW Trustee and Guardian Act 2009 and Regulations made thereunder.
(19) Order pursuant to s 66(2) of the Succession Act 2006 (NSW) that 20% of the Net Distributable Estate be distributed to Camellia Tadros and Maroun Shoushani as tenants in common in equal shares.”
The liberty to apply granted by Order (16) of these orders was available in all three matters and was ultimately used on behalf of George by Ms Ghania Dib of GDA Lawyers to relist the proceedings in the probate list in mid-2024 after the first defendant had failed to account to the beneficiaries for what had happened with the proceeds of sale of the properties, once the trustees for sale had completed their task. Importantly, the liberty to apply granted by Order (16) included not only “any matter that may arise in relation to the sale of the properties” but also matters in relation to “the distribution of the sale proceeds”. This gave the administrator, and the other parties, general liberty to approach the Court to resolve any issues concerning how the proceeds of sale of estate properties should be managed towards distribution.
In proceedings 2017/353766, the following orders were made setting up a trust of a similar character for George:
“(4) Order pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision under the rules of intestacy, provision be made for the Plaintiff by way of one third (1/3) of 80% of the net distributable estate.
(5) Order that the Summons be otherwise dismissed.
(6) Orders pursuant to section 66(1) of the Succession Act 2006 (NSW) that the provision ordered in favour of the Plaintiff by Order 4 above be held on trust, such trust (“the trust”) to be in the following terms:
(a) Net funds remaining after deductions are to be paid to NSW Trustee and Guardian (“NSWTAG”) pursuant to s 77 of the Civil Procedure Act 2005 (NSW) and to be held on trust by NSWTAG in its’ trust capacity for George Shoushani until the Vesting Date.
(b) NSWTAG may pay, apply or set aside any income or capital for the maintenance, education, benefit and advancement of George Shoushani in such manner as NSWTAG shall in its absolute discretion think fit.
(c) The Vesting Date is the earlier of the following four events to occur in time:
(i) when the time set by the law of perpetuities expires; the trust vests and the balance passes to George Shoushani (or his financial manager or power of attorney, if applicable); or
(ii) the death of George Shoushani, to his legal personal representative; or
(iii) such earlier date as NSWTAG in its absolute discretion determines, the trust vests and the balance passes to George Shoushani (or his financial manager or power of attorney, if applicable); or
(iv) all capital and income have been expended.
(d) NSWTAG shall be entitled to charge and be paid out of any part of the capital or income of the Trust Fund its remuneration to the extent provided for in the NSW Trustee and Guardian Act 2009 and Regulations made thereunder.”
These terms of settlement made clear to the administrator and her legal advisers that trusts had been created in favour of George and Robert that “the net funds remaining after deductions” are (when ascertained) to be held on trust by the administrator and are to be paid to the NSWTAG, the trustee of the trust created by the agreed orders.
Finally in proceedings 2018/00074492 brought by Tony, orders were made in his favour under Succession Act, s 59. Ancillary orders were made as follows, limiting the legal costs that could be charged by the legal representatives for the estate and authorising distributions of part of the estate to the first defendant, Camellia Tadros, and to another sibling Maroun Shoushani:
“(9) Note the agreement of the Estate’s legal representatives that they shall not charge the Estate more than $20,000.00 from the date after the Heads of Agreement (being 19 November 2020) to finalise these proceedings and the related proceedings up to the making of these orders.
(10) Order pursuant to s 66(2) of the Succession Act 2006 (NSW) that 20% of the net distributable estate be distributed to Camellia Tadros and Maroun Shoushani as tenants in common in equal shares.”
The structure of the settlement meant that the administrator needed to account to the beneficiaries as to what funds were received from the trustees for sale, as to what final estate liabilities were met from those funds before distribution and as to what net distributions were to be made to Robert and George (by payment to the NSWTAG) and the other beneficiaries. These consent orders gave clear notice that these trusts for Robert and George had been set up.
After the March 2021 settlement approval, the properties referred to in the terms of settlement were sold and the proceeds of sale were paid to the estate by the trustees for sale. The administrator, Camellia Tadros, continued to be advised for a period by the estate’s retained solicitors. For exactly how long their legal assistance continued is obscure.
By mid-2023, after the expected substantial distributions had not been made to Robert, George, Tony or Maroun, the beneficiaries began to ask questions. The leading questioning came from the solicitor for George, Ms Ghania Dib, of GDA Lawyers who was instructed by George’s tutor, Ramia Abdo Sultan. What was revealed distressed the beneficiaries, Robert, George, Tony and Maroun.
The estate’s properties were three adjoining parcels of residential real estate in Greenacre. The first property had been sold on 20 July 2019 before the settlement of the primary proceedings for $780,000. After the 2021 settlement the two remaining properties were sold for a total of $2,480,000 after Robert vacated them. Following the deduction of legal fees and the other expenses of the trustees for sale, the estate received total net proceeds of $2,757,805.45.
The sale of the estate properties was complete in about February 2022, when the trustees for sale transferred the final proceeds into the trust account of the estate’s solicitors.
The terms of settlement limited the estate’s solicitors’ fees to a further $20,000 after the settlement. This limit was presumably imposed to fix the quantum of the distributions to the beneficiaries.
Submissions have been filed on behalf of George seeking an inquiry into the conduct of the estate’s solicitors in relation to the matters detailed below. The Court has not commenced such an inquiry but because of the Court’s incomplete knowledge of relevant events has decided to ask the estate’s solicitors for more information about the course of the events.
Soon after the settlement approval the estate’s solicitors organised for a separate estate account to be established by her, at a local bank branch so that she could administer the estate funds directly herself, rather than through the firm’s trust account. Ms Tadros established an account with the Commonwealth Bank of Australia (“CBA”). The estate’s solicitors provided Ms Tadros with an initial cheque for $60,869.80 on 27 April 2021, soon after the settlement, and a further cheque on 22 February 2022, after the sale of the properties and the receipt of the proceeds of $1,983,592. Thereafter the estate’s funds were under the control of Ms Tadros in this CBA account.
The evidence adduced so far in these proceedings does not disclose any communication from the estate’s solicitors to the beneficiaries other than Ms Tadros that this final transfer of the estate funds of almost $2,000,000 occurred on 22 February 2022, although further evidence may yet demonstrate such a disclosure. The plaintiffs expected to receive distributions soon after February 2022. But no distributions came. This led to them consulting the solicitors to enquire what had occurred.
On 25 February 2022 the trustees for sale informed Ms Dib, in response to her enquiries, that they had paid the balance of the purchase funds to the estate’s solicitors. The transfer into their trust account of net sale proceeds of $2,104,098 was more than what was originally estimated for the sale of the two estate properties. Indeed, it was $482,104.98 more than the estimate given at the time of the March 2021 settlement. George assumed that would result in him receiving a distribution of more than his estimated distribution at the time of the March 2021 settlement of $425,206.10.
“I expressed everything to you in my previous email. I am sorry that is not to your satisfaction. When the tax obligations for the estate have been completely finalised, you will receive all the information you need. I don’t have a lawyer.”
Ms Dib emailed Ms Tadros advising her that she should obtain legal advice and that she may be subject to a personal costs order. Ms Dib did not receive a response from Ms Tadros to this email. Ms Dib received no more correspondence from her before the matter came to Court, notwithstanding Ms Dib writing further emails on 22 May 2024 and 14 June 2024.
On 26 June 2024 Ms Dib wrote to my chambers at the Court to seek to have the matter re-listed. The proceedings were first mentioned on 28 June 2024.
At the re-listing counsel for George, Mr Salama outlined what had occurred and put before the Court such financial information as was known to George’s legal representatives. The Court immediately issued orders freezing the assets of Ms Tadros and specifically the contents of account #0828. Orders for service of process on Ms Tadros were made, and the matter was then made returnable before the Court on 4 July 2024. The return date of the Summons was the first time that the plaintiff, George, received any account from Ms Tadros of what had happened to the March 2021 settlement funds.
On 4 July 2024 Ms Tadros attended and was required to answer questions under oral examination as to the whereabouts of estate funds. She revealed that a sum of only about $10,000 remained in the estate account and a further sum of $90,000 had been transferred from the estate account to her personal bank account, which was also held with the Commonwealth Bank of Australia (“CBA”).
Ms Tadros objected to answering questions and the Court granted her a certificate under Evidence Act 1995, s 128. She admitted under examination that she had misappropriated a total of $1,141,286.15 (after payment of estate expenses). Ms Tadros admitted she had spent the money on herself and that she had used the funds in the estate account as if they were her own personal funds. She said that she thought the money was hers for “being the administrator” and that she had decided that she deserved to be able to use the funds.
In answer to a question from counsel “did you need the money?” she simply said, “I didn’t need it. I wanted it”. She confessed that she had spent all the money. Ms Tadros made no real effort to justify her expenditure of estate funds on estate business, or for the beneficiaries. When counsel put to her that she “knew what you were doing was wrong” she answered, “Yes, I knew I was going to get in trouble. Yes of course, I knew I was going to get in trouble”. She later revealed that the funds had been applied to a variety of ends, including gambling and being gifted to other family members.
Several features stand out about her expenditure of estate funds. First, Ms Tadros transferred the estate funds to multiple undisclosed accounts, mostly through a Pay ID to a mobile telephone number, in small amounts over time. George’s legal representatives submit that this was done for the transactions to remain less conspicuous to the CBA, who was providing banking services to her. That may well be correct but more nuanced this may need to be made judgments about that in other proceedings.
When these proceedings were first listed, the Court was faced with the need to identify urgently what had happened to very substantial estate assets. Once the first defendant was joined and then other defendants were joined, freezing orders were made against them, including orders to provide affidavits as to their dealings with estate assets or with funds derived from estate assets.
The Court then took the uncommon course of allowing Ms Tadros and the defendants who had received funds to be called as witnesses and then examined orally in relation to their dealings with estate assets, to assist the estate urgently to trace the proceeds of estate assets. The Court’s power to take this course was not challenged but arises from the Court’s statutory and inherent jurisdiction.
Under Civil Procedure Act 2005, s 108 the court is empowered to make orders in accordance with the uniform rules for examination, against a person bound by an order of the Court, to attend to be examined orally as to any material question, or to produce any document or thing that is in his or her possession.
Uniform Civil Procedure Rules 2005 (“UCPR”), r 38.2 allows a party to apply to the Supreme Court for an order for examination with respect to the enforcement of a judgment or order if the judgment or order remains unsatisfied. The Court made freezing orders in this case. Given the urgency of the situation the Court did not require formal examination notices to be served before enforcing those orders by the examination of witnesses. The Court has power to dispense with such formal requirements under Civil Procedure Act 2005, s 14.
Moreover, the Court has jurisdiction under Supreme Court A**ct 1970, s 23 namely “all jurisdiction which may be necessary for the administration of justice in New South Wales”. It was necessary in this case to rapidly ascertain the whereabouts of estate assets so that appropriate tracing orders could be made joining additional defendants.
The Court indicated that every witness who was required to provide affidavit or oral evidence due to the circumstances revealed by the evidence in this case, would be given a certificate under Evidence Act 1995, s 128 or s 128A.
The powers identified here are available to assist the legal personal representative of the estate to trace estate assets.
The Court’s findings in these reasons are inconsistent with the first defendant continuing as the administrator of the estate. Her admitted misconduct disqualifies her from continuing in that role. She has not yet been removed, and she will be removed by orders to be made in chambers at the same time as the other orders discussed in these reasons. An order revoking the prior grant of administration to her will suffice.
That immediately raises the question of who should replace her. The Court has been told that legal advice is proposed to be obtained to ascertain whether any further recovery is possible on behalf of the estate against any third-party in the events which have occurred. The estate will need an administrator to make decisions on behalf of the estate (and probably with the advice of the Court under Trustee Act 1925 s 63) in relation to such litigation. The Court must use its inherent jurisdiction to appoint an administrator pendente lite (a) to take advice and consider what further steps (if any) should be taken in relation to the current litigation, (b) to take advice and consider what further litigation (if any) should be commenced on behalf of the estate against any third parties, and then (c) to conduct any litigation so commenced to finality.
The limited financial circumstances of the estate severely limit the range of options available to advance the estate’s future administration. In some circumstances the Court might consider appointing an independent administrator to replace the first defendant, Ms Tadros. But that is not realistic here. The estate’s resources will not bear the cost of an independent professionally qualified administrator. The Court approves through these reasons the payment of a substantial sum to the solicitors for the plaintiff from the funds received. What is left is a little under $60,000, a sum which would not long support the appointment of a professionally qualified independent administrator. And part of that sum is the subject of a request for interim distribution, discussed elsewhere in these reasons.
What alternatives are available? One of the plaintiffs might volunteer to become the administrator pendente lite under the Probate and Administration Act 1898, s 73 of the estate in place of the first defendant. Any one of the beneficiaries, George, Robert, Tony or Maroun, each of whom has a substantial interest in the proper and orderly administration of the estate could be appointed in the place of Camellia Tadros. The Court invites these family members to discuss among themselves which of them should be appointed. If no agreement can be reached, then the Court will make an appointment. It is important for someone to take responsibility for the important estate decision-making which is to come.
As they gained the most from the March 2021 settlement, George and Robert have the greatest financial interest in any future distributions from the estate. Ordinarily they would be the logical first choices for appointment as replacement administrators. The complicating factor is that due to their legal incapacity were they to be appointed, they would have to act in that role by tutors.
The unusual circumstances of this case raise the possibility of whether the Court should make a general administration order. Under a general administration order the administration of the estate takes place under direct supervision of the Court in accordance with the principles stated in McLean v Burns Philp Trustee Co Pty Limited (1985) 2 NSWLR 623 (“McLean*”). In McLean,* Young J explained that in some circumstances an order for general administration of an estate will be made, even on interlocutory basis, if the circumstances require such an order to be made. Since the mid-19th century, if a beneficiary came to the Court and asked for an order for general administration of a trust it would be decreed as of course, by the trust being specifically performed under the supervision of the court, with nothing being done without the Court’s imprimatur, with accounts been taken to see what the trust assets were, and the Court would give directions as to how the trust would be carried out: McLean (633G – 634B).
Because of its disadvantages (for example the estate had to be paid into court and was administered by the Master in Equity – an office later abolished) the procedure of the general administration order was supplanted throughout the 19th century by the more modern procedure allowing summonses to be filed to deal with disputed points of administration without the need for a full administration decree: McLean (634G). The dichotomy of these older and newer procedures is still reflected in U**CPR, r 54.3, which contemplates that it is possible for an order for administration of the estate to be made but such an order need not be made to advance specific aspects of the administration of the estate.
A general administration order is likely to be made (a) where the trustees cannot work together, (b) where the circumstances of the estate give rise to ever recurring difficulties requiring the frequent direction of the court, and (c) where a pri**ma facie doubt is thrown on the bona fides or the discretion of one or more of the trustees: McLean (635 A - C). Here (c) is established and the Court foresees (b) that the circumstances of the future administration of this estate may present “recurring difficulties”. Given the gross depredations that have occurred in the administration of this estate, more continuing assistance in the recovery of estate assets will probably be required from the Court for the future administration of this estate, than in the ordinary case.
The Court will not immediately make a general administration order in this case, but there are many advantages for this estate in the Court keeping the continuing administration of this estate under close supervision. Moreover, an order for general administration of the estate would be an unnecessary procedural burden here. But the next best course, which will be inexpensive for the beneficiaries is for the Court to give the parties general liberty to apply at any time to a judicial officer familiar with the administration of this estate to deal with any questions which arise in relation to the further administration of this estate, and particularly questions of asset recovery.
It is submitted on behalf of George that the costs of these proceedings since they were re-listed should be borne by the estate. In the Court’s view, some order for costs reimbursement from the estate to the legal representatives of the plaintiff is appropriate in this case even at this stage, for the following reasons.
The funds that have been recovered for the estate and paid into Court totalling $168,002.10 have only been secured because of the actions of George’s legal representatives. Before these proceedings were re-listed and freezing orders obtained, Ms Tadros had largely transferred the estate’s available estate assets into her own name and was well on the way to stripping the rest of the estate’s assets.
All the parties, including George, were given liberty to apply by the March 2021 orders to give effect to the settlement. The same course can now be taken in the Court’s general equitable jurisdiction. The bringing of proceedings by a beneficiary in the name of the estate or to recover assets on behalf of the estate in “special” or “exceptional” circumstances, such as where there is a substantial impediment to the estate bringing the proceedings, is a well-known feature of equitable jurisdiction: see Ramage v Waclaw (1988) 12 NSWLR 84.
George’s re-listing of the proceedings and his pursuit of action on behalf of the estate against the administrator has produced undeniable benefits for the estate. George’s written and oral submissions now apply for an order for costs from the estate and for the payment of those costs from the funds in Court. That application been accompanied by a request for a specified gross sum costs order under Civil Procedure Act 2005, s 98(4)(c). This would be a suitable case for an order to be made. The cases show that the jurisdiction to make such an order is versatile, and this is just another example of its usefulness: see Harrison v Schipp (2002) 54 NSWLR 738, Hamod v State of New South Wales [2011] NSWCA 375 and Gazal v Deputy Commissioner of Taxation (No. 2) [2024] NSWSC 293.
George's legal representatives have spent considerable time in seeking to locate estate assets through much detailed analytical work, issuing multiple subpoenas, reviewing subpoenaed documents, appearing before the Court on many occasions, conducting examinations of the defendants and filing affidavit evidence after organising the subpoenaed material. Ms Dibb’s affidavit of 16 October 2024 sets out the professional work and the memoranda of fees in this matter and summarising her and counsel’s professional fees, which amount to $203,209.33 up to that point. The Court has reviewed the costs claimed. From the Court’s own experience of the proceedings, fees of this order must have been incurred, and they generally seem reasonable for the substantial amount of work that has been done.
George’s legal representatives have indicated that they are willing to accept a heavy discount on their fees merely to cover expenses in the unusual circumstances of this case and they seek an order that the sum of $86,364, be fixed as a specified gross sum under s 98(4)(c) and be paid out of Court to the solicitor for George. The submissions indicate that this is a discount of 42.5% on the total costs up to 16 October 2024. The submissions further indicate that if this amount of $86,364 is authorised to be paid in legal fees that there can be a distribution now to the beneficiaries based in the following agreed proportions and estimated distribution amounts – namely Maroun Shoushani (10%-E$6,648), Robert Shoushani (30%-E$19,945), Tony Shoushani (30%- E$19,945), George Shoushani (30%- E$19,945).
The oral and written submissions made on behalf of George raise the possibility of the Court now authorising the making of an interim distribution to him and to the other plaintiffs who have entitlements under the March 2021 settlement. Making an interim distribution raises special issues in this case. The starting point for analysis is the general principles in relation to interim distribution.
The applicable legal principles in relation to an executor’s duty to consider the appropriation of estate assets to pay a pecuniary legacy, or distribute a specific legacy or devise, or to make an interim distribution of pecuniary legacies, even though the duties of administration are incomplete, were concisely stated by Campbell J in Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508, at 201, [47]-[50]. In that case, his Honour said:
“Basis for a Right from an Estate not Fully Administered – Obligation to make Interim Distribution
47 Sometimes it can be the duty of a legal personal representative to make an appropriation of estate assets so that he or she can pay a pecuniary legacy or distribute a specific legacy or devise or make an interim distribution of pecuniary legacies or interests in residue, even though the duties of administration are not complete. If the legal personal representative is in a situation of knowing that there are some distributions of the estate which could be made in accordance with the will or the rules of intestacy which govern the distributions of that estate, that there was no realistic prospect that that distribution could be cut down or affected by those aspects of administration of the estate which remained unperformed, and that the remaining tasks of administration were not likely to be completed soon, then it may be the duty of the legal personal representatives to make an interim distribution to that extent.
48 One of the duties of administration is dealing with any claim made under the Family Provision Act 1982 or similar legislation – dealing with such claims is one example of the task of administration of ascertaining the identity of the persons to whom the legal personal representative must transfer the net estate assets. Even so, in In Re Ralphs; Ralphs v District Bank Ltd [1968] 1 WLR 1522 Cross J said that, when a claim under the Inheritance (Family Provision) Act 1938 was brought against a deceased estate it was wrong to say that it was the duty of the legal personal representative to make no distribution of any sort to beneficiaries in the period between death and the hearing of the summons. The course legal personal representatives should take in such a situation is (at 1525):
“They should form their own view, with the assistance, of course, of their legal advisors, as to the payments which can properly be made, and if they are not prepared to make such payments on their own responsibility, they should ask the parties who might conceivably be affected – whether applicant or residuary legatee – for their consent. If such consent is not forthcoming the executors can apply to the court for leave to make the payment in question, and the court, if it thinks that any withholding of consent was unreasonable could throw the costs of the application on the party to blame.”
49 Another example of a circumstance where it might be the duty of a legal personal representative to make an interim distribution is given in Blackman v Permanent Trustee Co Ltd [2003] NSWSC 305, where Young CJ in Eq said, at [14], “… where a next of kin inquiry was ordered the court could order partial distribution to any lines of kin which were not disputed.”
50 A further example can arise if there were expenses of administration which would need to be paid in the future from the estate. If those expenses were of uncertain amount (as could be the case if the legal personal representative were engaged in litigation on behalf of the estate) the legal personal representative would be entitled to adopt a very cautious (though not unrealistically cautious) view about what the possible extent of those expenses might be, in deciding whether, or to what extent, a gift might be cut down. If, however, after taking such a cautious view of what the expenses of the estate might be, it was clear that the assets of the estate were more than enough to meet them, and if there were no other problems of administration outstanding, it could be the obligation of a legal personal representative to make an interim distribution of those assets in the estate which are not at risk of being used up in the future administration of the estate, at least in circumstances when it was clear who the correct recipient of those assets was.”
The general principles identified in Gonzales v Claridades at [47] present the following questions for consideration:
can distributions be made in accordance with a will or the rules of intestacy (or other agreement) which govern the distributions of that estate?
can it be said that that there is no realistic prospect that that distribution could be cut down or affected by those aspects of administration of the estate which remained unperformed?
are the remaining tasks of administration unlikely to be completed soon?
An appropriate answer to these questions may result in it being the duty of the legal personal representative to make an interim distribution from the estate. Important context here is that although the plaintiffs have already received limited distributions of funds, they have been deprived for a long time by Ms Tadros’ conduct of most of their just entitlements under the March 2021 settlement from estate. There is a strong case for considering an interim distribution in the near term, if one can properly be made. The Court should consider the making of such an order now, and even, if necessary, before the appointment of an administrator pendente lite. Ordinarily an administrator pendente lite would not be authorised to make interim distributions but the Court can nevertheless direct an early interim distribution if appropriate and it is prepared to do so in this case, as the beneficiaries have been out of their just entitlements under the March 2021 settlement for a long time. This means addressing the three questions for an interim distribution.
Can interim distributions be made here in accordance with the instruments governing distributions? The March 2021 settlement is the principal document here which governs what distributions should be made to the beneficiaries. The settlement identifies how final distributions are to be apportioned then paid among the beneficiaries. Interim distributions would be made in the same proportions unless otherwise agreed. The estate’s funds have all been paid into Court and are still in Court and any distribution to any beneficiary will need to be made by Court order in accordance with the proportions fixed under the March 2021 settlement and to the payees identified in the March 2021 settlement.
The two remaining questions should be considered together. These questions are the following. Is there no realistic prospect that that a distribution could be cut down or affected by those aspects of administration of the estate which remained unperformed? Are the remaining tasks of administration unlikely to be completed soon?
Ms Tadros’ sole remaining duties as administrator of the estate, after receiving the proceeds of sale from the trustees for sale, was to account to the beneficiaries and then distribute the proceeds in accordance with the March 2021 settlement and then to make the distributions. Her admitted misconduct changes the duties of any administrator who will be replacing her. Those duties now include additional obligations to consider whether further asset recovery litigation should be conducted on behalf the estate of the kind briefly identified in these reasons. What the estate should do about that will depend upon the legal advice received and the views of the beneficiaries about whether they want to conduct such litigation after considering the advice received. That will in large part depend upon the prospects of success of the litigation and the beneficiaries’ appetite for the financial risk of the litigation being contemplated.
The Court is considering referring these reasons to the President of the Law Society of New South Wales and if necessary to the Attorney as to whether law reform is required to minimise the risk of the events identified in these reasons recurring in the future. The events that have occurred raise the need for a rule which would apply to the administration of deceased estates to prevent beneficiaries of estates, such as the plaintiffs in these proceedings, being able to protect themselves because they were unaware that a legal practitioner acting on behalf of the estate was no longer doing so and had handed over the estate’s funds and/or their management to a sole administrator who would be likely to manage the funds without supervision.
The Court has decided that it will make such a law reform referral but after the Court has had an opportunity to hear from the estate’s solicitors. But at present the Court is minded to recommend law reform the introduction of a rule to the following effect: where the retainer of an Australian legal practitioner acting on behalf of an estate that is not yet distributed is proposed to be terminated (the outgoing legal practitioner) in circumstances where no new identified Australian legal practitioner is proposed to take over administration of the estate, the outgoing practitioner concerned should inform the beneficiaries a reasonable time before the termination takes effect, so the beneficiaries have an opportunity to submit to a Court that the estate’s funds should not be risked by being administered by a sole trustee beyond the supervision of an Australian legal practitioner. The policy in favour of such a rule is consistent with, for example, the appointment of trustees for sale – normally two are appointed to reduce the risk of maladministration. The rule may have to operate notwithstanding any instructions given to the outgoing legal represent legal practitioner on behalf of the legal personal representative of the estate.
But the rule could take many forms. It may even be enlivened in circumstances where contrary instructions have been given by the legal personal representative to the outgoing legal practitioner.
In a separate written submission Counsel for George have requested that the Court should enliven its well-known supervisory jurisdiction over legal practitioners in relation to the estate’s solicitors conduct of the administration of this estate from February 2021. That broad jurisdiction is well identified and explained in case law: see for example Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244 [123] – [124], Atanaskovic v Birketu Pty Ltd [2020] NSWSC 573 at [34], and Bell v Hartnett Lawyers (No 2) [2021] NSWSC 1270 at [42] and see K. Mason, “The Inherent Jurisdiction of the Court” (1983) 57(8) Australian Law Journal 449 at 451. And this jurisdiction is supplemented by statute under 2005, s 99 in relation to costs.
In these proceedings this Court does not have the task of determining whether the conduct of Camellia Tadros or that of any other defendant constituted an offence under any provision of the Crimes Act 1900. Elements of criminal intent have not been examined in these reasons, and all parties deny criminal wrongdoing. But the evidence adduced in this case clearly raise concern that Camellia Tadros and possibly other defendants may have committed criminal offences due to the misapplication of the funds identified above. The Court cannot condone contraventions of Australian law. The Court has a well-established discretion to refer the matter to the Attorney General in such circumstances: Paycorp Payment Solutions v Peter Singyin Chai [2011] NSWSC 1632 at [3] and McGettigan v Coulter & Anor [2021] NSWSC 1097 at [375].
Whether offences have indeed occurred and whether further action is required is for others to investigate. The Court will therefore refer these reasons to the New South Wales Attorney-General, as first law officer of the State, for consideration as to whether any further action should be taken against Camellia Tadros or any other person under for example Crimes Act 1900 s 192E (for obtaining a financial advantage by dishonest deception) arising out of the Court’s findings. The investigation process may be simplified in this case by the fact that the Courts findings arise out of admissions of fact made by several of the parties during the asset recovery process as outlined in the general description of the relevant facts earlier in these reasons.
Some of the conduct identified may possibly also constitute a contempt of Court. The Court will consider such matters further once it has obtained more information about the administration of the estate from the estate’s solicitors.
For these reasons the Court makes the following orders and directions:
ORDER that the evidence these proceedings and the Court’s reasons for decision accompanying these orders (“the reasons”) be referred to the Honourable Michael Daly MP, the Attorney-General of New South Wales for consideration by the Attorney as first law officer of the State as to whether any, and if so what, criminal action may be warranted
(a) against Ms Camellia Tadros in respect of her several misapplications, referred to in the reasons, of the funds of the estate of the late Souad Shoushani (“the estate”), or of the funds otherwise held by her on trust for the plaintiffs (“the trust funds”), and (b) against any other defendant who has received the trust funds from Ms Camellia Tadros.
(a) enter an order for costs against in respect of the investigations conducted so far, and (b) enter summary judgment in the sum of the funds that $1,397,705 plus interest.
**********
The Estate of Shoushani; Shoushani
Tadros [2025] NSWSC 1335
(1957) 100 CLR 32
(2003) 58 NSWLR 188
(2002) 54 NSWLR 738
(1985) 2 NSWLR 623
(1988) 12 NSWLR 84
Throughout all the various directions hearings and hearings Mr F.F.F. Salama of counsel, leading Mr M. Morgan of counsel, instructed by GDA Lawyers, represented the first plaintiff, George Shoushani. The recent procedural steps George has taken to relist this matter have benefitted all three plaintiffs. The legal representation for the defendants has varied over time. Mr J Brown of counsel appeared for the second plaintiff, Mr Tony Shoushani when the matter was first listed. Mr M Licha of counsel appeared for Ms Tadros during her examinations.
The following is a very abbreviated account of the relevant history merely for the purposes of providing background to the Court’s directions made below. The Court has not been required to decide any contested facts in these reasons. Most of the available history is not disputed and comes either from business records or from admissions made by the first defendant herself or by other defendants, who have all been granted certificates under Evidence Act 1995, ss128 and 128A.
The Court does not set out in these reasons any more background than is necessary to explain the orders made below and to give guidance to those in charge of the future administration of the estate. Ms Tadros was legally represented at her examination and made clear statements about the facts as they affected her. But other advisors to the estate who are caught up in these events have not yet been asked to give their versions of what occurred, so they are not identified in these reasons. Similarly, Ms Tadros distributed funds to various people, including relatives and friends. Some of these people were examined as to the possible whereabouts of funds. During those examinations most of them were not legally represented and the Court will not include details about them in the narrative. Except to the extent that they clearly record admissions and uncontested facts these reasons should best be understood as recording contentions and providing background to the Court’s procedural directions.
The legal representatives of the parties in the three proceedings negotiated a carefully crafted set of orders which all worked upon the basis that Camellia Tadros would continue as the administrator of the estate. She appeared to be trusted by George, Robert and Tony. No suggestion was made to the Court that she should be removed, or that any other executor of the estate should be appointed. But her role was expected to be limited as she would soon be distributing funds to the NSW Trustee and Guardian (“NSWTAG”) to be held on trust for Robert and George with the balance of the funds to be distributed to Tony and another beneficiary, Maroun, and herself. At the time of the settlement approval, she was advised as administrator by the estate’s solicitors.
The orders made allowed for the recovery by the estate of certain real estate then in the name of Robert, which was declared by the settlement to be held on trust by him for the estate. Robert occupied that property and judgment for possession was given for the estate against him. The agreed orders appointed trustees for sale of this real estate. When that real estate was sold by the trustees and accounted for to the estate the net balance was agreed to be distributed to the beneficiaries of the settlement. In the case of Robert and George their agreed distribution was ordered to be paid directly to the NSWTAG to be held for the benefit of Robert and George on the trusts created for them in the settlement. The other beneficiaries were authorised to receive their funds directly from the administrator. Orders were also made linking the three sets of proceedings and the orders together.
The form of these various orders is important for what followed. In proceedings 2018/132531, after a series of machinery orders giving effect to the steps outlined above, and linking the various proceedings, the following relevant orders gave liberty to all the parties to apply and set up a trust of a share of the proceeds of sale for Robert:
But delays began to emerge. The initial delays were not particularly alarming and appeared to be explained by the provision of further professional services to the estate. In July 2022 a telephone call from the accountants and tax advisors retained by the estate to finalise the estate’s accounts indicated to Ms Dib that the accountants were having difficulties in obtaining information both from Ms Tadros and from the real estate agent who had sold the properties. The accountants needed information to make a final calculation of the likely capital gains tax on the various property sales, so that the estate accounts could be finalised. It is presently unclear to the Court whether the estate accounts have yet been finalised.
The accountants communicated in October 2022 that they were able to finalise the estate’s accounts and tax returns and referred Ms Dib’s inquiries to the executor. The accountants confirmed to Ms Dib that the estate’s accounts were completed on 30 November 2022 and had been sent to the administrator. Estate tax returns were filed in December 2022. In March 2023 Ms Dib was informed that the estate’s tax liabilities had been paid to the ATO and that a small refund had been received from the ATO.
It was at that point, on 2 March 2023, that Ms Dib emailed the estate’s solicitors requesting them to provide a breakdown of the estate’s distribution calculations so that she could cross reference them with the orders made on 8 March 2021 and the known net proceeds of sale of the estate properties. Correspondence took place between Ms Dib and the estate’s solicitors and others over the following 12 months.
The estate’s solicitors continued correspondence with Ms Dib. The estate’s solicitors indicated on 14 March 2023 that the administrator could now make an interim distribution of the estate, but no breakdown of the estate's distribution calculations was available. The estate’s solicitors’ available correspondence appears not to have alerted Ms Dib to the fact that the estate funds were now under the sole control of Ms Tadros and not in the solicitors’ trust account.
The NSWTAG informed Ms Dib on 28 August 2023 that NSWTAG had received some funds on account of George's share of the estate. But Ms Dib was not informed of the amount of the funds at that time. But in January 2024 NSWTAG informed her that $140,000 had been received from the administrator. Ms Dib was concerned that this was significantly less than George's estimated entitlement of $425,206.10 based on the assumed sale price for the estate properties in the settlement agreement. NSWTAG told Ms Dib that a statement of account had been requested from the estate’s solicitors but remained outstanding.
In February 2024 Ms Dib began to intensify her inquiries. NSWTAG informed her that they were yet to receive any statement of account with respect to the estate. Ms Dib spoke to one of the trustees for sale on 21 February 2024. He confirmed that all the funds in his trust account had been transferred to the estate’s solicitors and Ms Dib sought from them a breakdown of all the distributions from the estate, incorporating property proceeds, distributions made, taxes paid and other ancillary items and that he transfer the balance of George's funds to the NSWTAG and provide Ms Dib with a copy of the receipt for such transfer.
But the available evidence suggests that the estate solicitors communicated with Ms Dib and revealed on 21 February 2024 that the entire funds in the trust account had been transferred to Ms Tadros on 27 April 2021 on instructions from Ms Tadros but that the estate solicitors were still waiting on further information from Ms Tadros concerning her administration of the estate.
Ms Dib followed up her inquiries of the estate’s solicitors to seek objective verification of the movements of funds outlined to her. They indicated that they had asked Ms Tadros for this information, including to finalise the estate’s accounts.
Ms Dib intensified her inquiries into April 2024 but the solicitors for the estate indicated that Ms Tadros was not giving them information and that they would soon be withdrawing from acting for her which would allow Ms Dib to communicate directly with Ms Tadros.
Ms Dib also directed inquiries towards the estate's accountants hoping to gain information from that direction. But the estate’s accountants had no better information as they were waiting upon bank statements and financial documents from Ms Tadros.
By the end of the first week of April 2024 these delays caused Ms Dib to consider that the administrator may have misappropriated funds from the estate, and she raised her concern with the estate’s solicitors and indicated that if no other information was forthcoming that she may need to take further legal action. Ms Dib continued to follow up with her inquiries of the estate’s solicitors and the estate’s accountants throughout the first half of April 2024.
By mid-April Ms Dib had increasing concerns that Ms Tadros may have misapplied estate funds. Ms Tadros was giving contradictory information about her administration of the estate to the estate’s accountants and to Ms Dib, but Ms Tadros was still unwilling to provide estate accounts or financial information to Ms Dib.
Ms Tadros authorised the estate’s accountants to provide Ms Dib with a screenshot of the CBA bank account balance in February 2022, showing the deposit of $1,983,592 into the estate’s CBA account opened by Tadros ending #0828. This was the sum of money released to Ms Tadros by trust cheque on 22 February 2022.
On 18 April 2022, Ms Dib emailed Ms Tadros seeking copies of bank statements for account #0828 from 1 January 2021 to date and a statement of the distribution made by the estate. Ms Dib also indicated that she had instructions to re-list the matter in Court, if Ms Tadros failed to provide this material.
On 25 April 2024 Ms Tadros wrote to Ms Dib indicating that she was unable to disclose the requested information. Ms Tadros gave a range of unsatisfactory and implausible excuses for this failure to disclose, which only further raised Ms Dib’s suspicions.
On 26 April 2024 Ms Dib sent another letter to Ms Tadros requesting further information about George’s share of the estate and re-iterating her request for bank statements and warning her that the matter might have to be re-listed.
Ms Dib received another unsatisfactory email from Ms Tadros in reply which stated, “I am so sorry I cannot provide you with all the paperwork you require, as that is to be done by the accountants”. That explanation was inconsistent with the advice the accountants had given Ms Dib, which was that Ms Tadros had the up-to-date bank records for the estate and had attended to such interim distributions as had occurred. Ms Tadros provided a screenshot of CBA account #0828 as of 31 March 2023, which showed a balance of $704,764.50. She did not provide a current statement of balance for the estate’s bank account or any other bank statements showing other dealings on the account.
This amount of $704,764.50 was significantly less than the amount which had been deposited in February 2022 and did not readily reconcile with the sums which George, Robert and Tony were aware had been the subject of interim distributions. The same day Ms Dib replied to Ms Tadros indicating that the extract that Ms Tadros had provided was 13 months old and was therefore unsatisfactory. Ms Dib re-iterated her request for the documents that she wanted and noted that the proceedings would be re-listed. The relisting power to which she was referring was that conferred under the March 2021 settlement.
Ms Dib received no reply to this email. She followed it up with emails on 2 May 2024 and 7 May 2024, to which she also received no immediate reply. On 7 May 2024 Ms Dib furthered her communications with the estate’s accountant, who informed Ms Dib that Ms Tadros had instructed the accountant “not to complete any further work for the estate and advised that she will be engaging a new accountant”. In the meantime, the estate’s accountant said she was not authorised to release any further information to Ms Dib.
Then Ms Dib heard directly again from Ms Tadros. On 10 May 2024 Ms Tadros emailed Ms Dib to the following effect:
The second feature that stands out was that Ms Tadros used the money for her own discretionary spending. She spent it on a range of personal expenditure, living expenses, entertainment, gambling, legal expenses and on gifts for her children and grandchildren.
A third feature of Ms Tadros’ funds transfers was a degree of artifice to disguise that she was benefitting from the transfers. Sometimes estate account funds were transferred to a third-party account and Ms Tadros agreed that other family members then withdrew the cash and brought the cash back to her or were permitted to spend the cash with her approval. This practice was supplemented by another practice of transferring funds parcelled into relatively small amounts, often labelling the transfer as “a gift”. These practices, taken together, are consistent with an intent to conceal the course and destination of funds flowing out of the estate.
This led to George’s legal advisers suspecting that cash derived from estate funds may be being accumulated elsewhere. Ms Tadros gave sufficient information about the destination of estate funds to allow the joinder of several other defendants who had received some funds from the defendant. Each of those defendants then became the subject of later examination.
The full cashflow to these various defendants and the amounts received by them as individuals is not set out here for several important reasons. First, at the time that they were examined they were not legally represented. They were offered adjournments to obtain legal representation, but they were unable to obtain legal representation. But they were still unrepresented, and the Court is cautious about discussing in these reasons the funds provided to them individually and the circumstances in which that occurred.
Secondly, it is not necessary to discuss those transactions to advance the administration of the estate at this stage. Thirdly, Ms Tadros has funds transfers to third parties were immensely varied in nature and their individual circumstances did not warrant further investigation but can be seen from their answers under cross examination and the affidavit evidence.
But there is another potential solution to hand. The present tutor for George has conducted these proceedings so far to the Court’s satisfaction and the Court would probably be prepared to appoint him, or the tutor for Robert or both, to act as administrator/s. These tutors so far appear to be acting in a voluntary capacity on behalf of George and Robert. The role contemplated would probably only be marginally more onerous for George’s tutor then than what has been undertaken so far in these proceedings will. Neither of them appears to have any conflict of interest in relation to decision-making about future litigation on behalf of the estate.
Such an appointment is consistent with probate practice generally in relation to persons under incapacity, even where the duration of that incapacity is uncertain. For example, during the minority of an administrator the Court may make a grant of administration to the administrator’s guardian, either legal or testamentary: Supreme Court R**ules 1970, Part 78, Rules 50 and 51 and 52. The discretion to appoint an administrator pendente lite under Probate and Administration Act 1898 s 73 is sufficiently broad to encompass such an appointment.
But there must be safeguards, given the regrettable history of the administration of this estate. If a single executor is to be appointed, the Court would require an undertaking from that executor to continue to retain a solicitor to act on behalf of the estate and for the estate’s funds to be held in that solicitor’s trust account. Realistically, given the complexities of the issues in this case, the administrator would need to retain lawyers to act on his or her behalf anyway.
GDA Lawyers would not be disqualified from acting on behalf of the estate due to their prior involvement in these proceedings and knowledge of the affairs of the estate. The fact that they had previously acted against Ms Tadros does not appear to the Court to disqualify them from now acting for the estate. The interests of their client, George, presently appear to the Court not to involve any conflict with the interests of the estate. But the liberty to apply granted with these reasons encompasses a right of any party to put submissions about who should or should not be appointed administrator pendente lite and whether any legal firm should not be chosen to act for the estate.
But it is possible, depending upon the path beneficiaries of the estate wish to take, that there may be very little further administration in this estate. The plaintiffs wish to receive a definite distribution from the estate; however small it may now be. They may opt for that course, seek a distribution and prefer to assess later whether future legal action should be commenced on behalf of the estate and how such action might be funded.
Those questions may be as varied as any of the following: selecting for appointment a suitable administrator, giving judicial advice in relation to the commencement of proceedings to recover estate assets or seeking compensation from third parties for the maladministration of the estate, conducting further examinations for the purposes of tracing and identifying estate assets, expediting the hearing of actions for the recovery of estate assets or for compensation, and distributing estate assets to beneficiaries of the estate. The orders made with these reasons grant general liberty to apply.
But the Court has decided upon a different approach. This approach is taken for the following reasons, for the greater benefit of both the plaintiffs and their legal representatives who have volunteered their time in this matter. If possible, the lawyers in this case deserve to be paid in full. And the legal representatives for the plaintiffs (mainly George’s legal representatives up to this point) have clearly indicated that they are prepared to reduce their fees so that the recovered assets of the estate are not consumed in legal fees.
If the lawyers wish to share the benefit of recoveries with George and the other plaintiffs, then it is just that George and the other plaintiffs get the maximum benefit of orders for legal costs, to increase the prospects maximum recovery from defendants. It is possible, for example, that other assets will be found in the hands of some of the existing defendants or that recovery may take place against a third-party against whom a costs order may also be made on behalf of the estate. If a specified gross sum costs order reducing GDA Lawyers’ recoverable legal costs under s 98(4)(c) is made and particularly if additional funds become from the present defendants, George’s lawyers will not be able to recover the full amount of their costs actually incurred. That is not a desirable outcome.
There is a method to reserve the rights of GDA Lawyers and counsel to obtain greater recovery of costs, if further funds become available for recovery from the defendants. GDA Lawyers and counsel will then have the option of choosing to do, what they have so far generously done, which is to share directly with the plaintiffs some of the recoveries which they would otherwise be entitled to appropriate to the payment of their costs.
The Court will select a sum which will undoubtedly be recoverable in costs against the estate and authorise the making of a payment on account of costs to George and then temporarily stay any liability for the payment of legal costs by the estate to George above that figure. This has the advantage of providing partial compensation on account of costs for the lawyers who have provided credit to the estate so far. But the stay on the recovery of additional fees also means that the Court can authorise further distributions to the beneficiaries without a concern that the Court’s authorisation will render the estate insolvent.
The undoubtedly recoverable costs which the Court has fixed that cover counsel’s fees and other disbursements and core professional charges is approximately 50% of the total charges which in the Court’s view is the sum of $101,604.67. The Court will authorise the payment of this sum on account of costs and order a temporary stay on the payment of costs above that figure. The Court will impose that stay when George’s legal representatives provide the other short minutes of order contemplated by these reasons.
Orders for the reimbursement of the solicitors for George now raise the question of whether an interim distribution can be made from the funds that now remain within the estate and what orders to that effect should be made.
The timing of the remaining tasks of administration is uncertain but will be governed by the decision whether to litigate on behalf of the estate. Any decision to litigate further will require the estate to source further funds from external sources including the possible continuation of the provision of financial credit from legal practitioners acting on behalf of the estate. Given the limited funds left in Court, any interim distribution would be likely to limit the resources available to conduct future litigation on behalf of the estate or to seek further recovery of estate assets.
But the estate’s beneficiaries and creditors can fashion various kinds of agreement that would create greater certainty in the future administration of the estate and in turn make an interim distribution far more feasible. Provided that the agreement among the beneficiaries can be justified in accordance with applicable principles, the Court will attempt to accommodate the interim distributions that the beneficiaries would like.
Subject to the assumption referred to in the next paragraph, the estate’s only probable known substantial future creditor would probably be George who has through his solicitors conferred considerable benefits of the estate in conducting the valuable investigations, which have taken place so far under the authority of the Court. And a formal costs order will be made in his favour. No other creditor has been identified, which is not surprising given that the March 2021 settlement has been completed but for the distribution of the proceeds of sale.
The solicitors formerly acting on the estate may yet claim to be creditors of the estate and should be asked to indicate whether they say they are creditors before any of the matters referred to in this section of these reasons is finalised. The estate’s former solicitors were limited to fees of $20,000 by the terms of the March 2021 settlement. But they may perhaps claim further fees from the estate in respect of estate administration after the period associated with the sale of estate property to which they may say the $20,000 cap applies. The parties should give notice of these reasons to those solicitors. If they do claim to be creditors of the estate, their claim should be quantified and resolved. They have not provided any legal services to the estate for some time. They may need to be included in any negotiations and discussions concerning an interim distribution.
The beneficiaries and the estate’s identified creditors will have a substantial say in how the estate is administered from here on and how any future litigation is to be funded and conducted. If the beneficiaries (with the consent of any known creditors) were to agree that they would prefer to take an interim distribution, in the expectation that either (a) there will be no future recovery litigation, or (b) any future litigation would be funded by the provision of credit to the estate by GDA Lawyers, then they could request a substantial interim distribution of much of the remaining funds. On the other hand, the beneficiaries may wish to take a smaller interim distribution and conserve some of the financial resources of the estate to conduct future litigation. This will involve a balancing exercise. Provided the balancing exercise is fully explained and the subject of broad agreement, then an interim distribution could take place.
Any interim distribution should be expressly authorised by order of this Court to protect the administrator. If another administrator pendente lite is appointed in place of Ms Tadros and the interim distribution occurs, such a person will be protected from any personal liability to creditors, as the Court is the authority by which the orders are made for the interim distribution from the estate: Deputy Federal Commissioner of T**axation v Brown (1957) 100 CLR 32 at 53, per Kitto J.
The Court is mindful of the fact that George and Robert are under a legal incapacity and may be in more immediate need of funds. It is open to the Court to vary the existing March 2021 orders so that some or all the funds payable to them do not have to be paid through the NSWTAG, which may slow down the delivery of the funds to them. Some very limited evidence about their current financial circumstances would be sufficient for such orders to be made. Given that the amount that George and Robert will receive directly now is a fraction of that to which they were originally entitled, it may be that the Court can make these payments to them, provided there is some assurance that it will be used responsibly for their benefit. Bu the Court will not lightly abandon the original structure involving the NSWTAG.
GDA Lawyers have proposed specific distributions to each of Maroun, Tony, Robert and George. This was based on the distribution to the lawyers of a slightly smaller (by a total of about $15,000) sum on account of costs of $86,364, than the amount that the Court has allowed to be paid in the short term of $101,604.67. This will reduce the amount that the beneficiaries receive below the amount proposed in the draft order sent to the Court. But it is open to the lawyers to revert to their original plan if they wish, despite the Court’s larger allocation.
Once figures for final distribution are reached by agreement, the Court can deal with making final orders this matter briefly either in chambers or with a short appearance by the parties’ legal representatives.
But the estate’s solicitors have not been given notice of this application and have not had an opportunity to respond to it any way. It would therefore be unfair for any observation to be made in these reasons about the merits, or otherwise of such an application. Moreover, the Court does not yet have enough information about what the estate’s solicitors did as legal practitioners in relation to the administration of this estate.
Therefore as a preliminary to considering whether or not the Court should exercise any such supervisory jurisdiction (and the Court has not decided on that question either way) the Court will issue a direction in chambers for the estate’s solicitors to provide an affidavit to the Court setting out the course of events in which they were involved as a legal practitioner in the administration of this estate between the March 2021 settlement and 30 June 2024. The estate’s solicitors should also be provided with a copy of these reasons and the written submissions submitted by George in relation to the exercise of the Court’s supervisory jurisdiction in this case.