TRAFFORD-JONES, Thyge Howard v McQUINN, Douglas Gordon

Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, Fysh v Coote [2000] VSCA 150, Mavrideros v Mack (1998) 45 NSWLR 80, Monty Financial Services v Delmo [1996] VicRp 7; [1996] 1 VR 65, Proud v Arkell [2019] NTSC 35, Sharpe v Forbath [2000] VSC 282, referred to.

In the Estate of Topgood [2021] NTSC 90

IN THE MATTER of an application to remove the executor of the estate of Barry Charles Topgood (deceased)

• [1] This is an application brought by originating motion filed on 19 May 2021 seeking orders that Douglas Gordon McQuinn (the defendant) be removed as executor of the estate of the late Barry Charles Topgood (the deceased), and that Thyge Howard Trafford-Jones (the plaintiff) be appointed as executor in his stead. In the alternative, the application seeks that the grant of probate be revoked.
• [2] The circumstances in which the application is made may be summarised as follows. The deceased died on 22 September 2007. The deceased left a Will which had been made on 22 October 2003. That Will appointed the defendant as executor and trustee of the estate. The total value of the deceased's estate was approximately $400,000. The Will bequeathed the sum of $30,000 to each of three second cousins of the deceased. The residue of the estate was left to the defendant. On 23 August 2019 the defendant was declared bankrupt. On 6 December 2019 the plaintiff was appointed as the trustee in bankruptcy.
• [3] The principal assets of the estate were a house property situated in the Northern Territory, which is presently valued at approximately $300,000, and shares in a number of mining companies, which at the time of the deceased's death were worth in the order of $40,000. The house property remains registered in the name of the deceased. It is unclear whether the specific pecuniary legacies have been paid, but that would seem unlikely given that the principal asset of the estate from which those legacies could have been paid remains unsold and still in the name of the deceased.
• [4] On 21 September 2021, the Originating Motion, the Summons on Originating Motion and the affidavit material in support were served personally on the defendant. Since that time, the defendant has not filed an Appearance or attended before the court at the directions hearings which have been held in this matter.
• [5] The solicitors for the plaintiff made telephone contact with the defendant on 18 October 2021. During the course of that telephone attendance, the defendant advised that he had suffered a stroke and was recuperating with his daughter on a rural property outside Darwin. The solicitors for the plaintiff advised the defendant that they would convey that information to the court, and provide the defendant's mobile telephone number to the court.
• [6] The solicitors for the plaintiff then sent correspondence to the defendant dated 5 November 2021 enclosing the Originating Motion, the Summons on Originating Motion and the plaintiff's affidavit made on 21 June 2021, all of which had previously been served on the defendant. The correspondence also advised the defendant that the matter was listed before the Court on 11 November 2021, and that the defendant would be required to enter an appearance if he wished to take any further step in the proceedings. When the matter came on for hearing on 11 November 2021, attempts were made by the Court to make contact with the defendant using the mobile telephone number by which the plaintiff had previously made contact with him. Those attempts were unsuccessful.
• [7] It is apparent that the defendant has failed to finalise the estate as executor. The power of this Court to grant probate carries with it an inherent power to revoke a grant if the Court is satisfied that the due and proper administration of the estate has been either put in jeopardy or prevented by reason of acts or omissions on the part of the executor: see Mavrideros v Mack (1998) 45 NSWLR 80, 108. That power is also conferred expressly by s 26 of the Administration and Probate Act 1969 (NT). Upon the revocation of probate pursuant to that inherent or statutory power, a fresh grant of probate may be made to an appropriate person. As an alternative to the revocation of probate, an executor may be removed pursuant to s 41 of the Administration and Probate Act, including where after the grant of appointment the executor is shown to be unfit to act, or incapable of acting in the office. That mechanism has the advantage of not requiring the revocation of probate and the issue of a new grant. Rather, a proper person is appointed as administrator in place of the executor to finalise the estate in accordance with the Will.
• [8] Different approaches have been taken over the years to the meaning of 'unfit'. However, on even the narrowest construction of that term, the notion of unfitness for these purposes encompasses disqualification by reason of bankruptcy. In more recent years the courts have adopted a broader purposive approach, which also extends the notion of unfitness to include such matters as gross delay on the part of an executor: see, for example, Monty Financial Services v Delmo [1996] VicRp 7; [1996] 1 VR 65; Fysh v Coote [2000] VSCA 150; Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584; Proud v Arkell [2019] NTSC 35. It is clear that an executor who sits idly by for an inordinate period of time without good cause is properly removed: see Sharpe v Forbath [2000] VSC 282, [21]. The delay in this case has been gross, the executor has not appeared in response to the service of the application, and an order for removal with ancillary relief is properly made.
• [9] Removal and alternative appointment pursuant to s 41 of the Administration and Probate Act will save the expense of any further application for the grant of probate or letters of administration. Given the existing appointment of the plaintiff as trustee in bankruptcy of the defendant's estate, the plaintiff is also appropriately appointed to finalise the administration of the deceased estate.
• [10] Accordingly, I make the following orders:

1. In the grant of probate of the estate of Barry Charles Topgood (deceased) made in common form on 20 February 2008, Douglas Gordon McQuinn is removed as executor pursuant to s 41 of the Administration and Probate Act 1969 (NT).

2. Thyge Howard Trafford-Jones is appointed as administrator of the estate of Barry Charles Topgood (deceased) pursuant to s 41 of the Administration and Probate Act 1969, with the estate to be administered in accordance with the Will made on 22 October 2003.

3. From the date of these orders, all property in the estate of Barry Charles Topgood (deceased) vests in Thyge Howard Trafford-Jones as administrator.

4. Douglas Gordon McQuinn shall within 14 days of the authentication of these orders deposit in the Registry of this Court the original grant of probate.

5. Douglas Gordon McQuinn shall within 14 days of the authentication of these orders deliver to Thyge Howard Trafford-Jones all assets of the estate within the Northern Territory of Australia not yet converted to cash, and advise Thyge Howard Trafford-Jones of the location of all assets of the estate outside the Northern Territory of Australia not yet converted to cash.

6. Douglas Gordon McQuinn shall within 14 days of the authentication of these orders deliver to Thyge Howard Trafford-Jones all accounts and other documents in his possession relating to the administration of the estate.

7. The plaintiff's costs of this application are to be paid from the estate on an indemnity basis and certified fit for counsel.

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