//
[2025] QSC 246
General information, not legal advice.
Supreme Court of Queensland
2025-09-26
Ryan J
Original judgment source is linked above.
[1] The applicant and the respondent are two of the four daughters of the deceased, Ivan Wild. By his will, the deceased appointed the respondent (the youngest) his executor and divided his not insubstantial estate approximately equally between his daughters.
[2] Probate was granted to the respondent on 21 October 2022. Since then, the applicant, through her lawyers, made numerous requests of the respondent, through her lawyers, for estate related documents; estate related information; and explanations for, or clarifications or justifications of, various estate expenses.
[3] After what the applicant considered to be an unsatisfactory/untimely response to her recent requests for documents, information et cetera, she made an application to the Court under section 8 of the Trusts Act 1973 (Qld) (Trusts Act) ("Application to court to review acts and decisions") seeking an order that the respondent provide her with certain estate related documents and information.
[4] The section 8 application was filed and served on 9 July 2025, to be heard on 31 July 2025.
[5] On 24 July 2025, without accepting that the section 8 application would lead to the order it sought, the respondent provided the applicant with material which the applicant acknowledged was "about 90 per cent" of that which she was seeking.
[6] The applicant then sought the costs of the section 8 application from the respondent personally, on the indemnity basis, in the amount of $26,300.50. The respondent resisted payment. She contended that the section 8 application was misconceived. The proper process was by way of rule 646 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and its related provisions. Also, because the documents/information sought were provided by the respondent before the hearing of the application - without an admission that she would be compelled to provide them by way of an order under section 8 of the Trusts Act - the respondent suggested that the application be either withdrawn, or dismissed by consent, with no order as to costs.
[7] The costs issue could not be resolved by the parties and the application came before me on the question of costs only.
[8] Until the day of the hearing, the applicant maintained her position that her costs ought to be borne by the respondent personally. She revised her position on the day of the hearing and sought instead to have her costs of $26,300.50 paid out of the estate.
[9] The respondent submitted that the applicant had unreasonably pressed on with her application for costs and that, if she did not succeed, she ought to pay the respondent's costs of responding to the application.
[10] For the reasons which follow, I refuse the applicant's application for costs and order that she pay the respondent's costs of responding to the application on the standard basis.
[11] Ivan George Wild died on 29 July 2022. His will was dated 5 May 2020. His estate included real property, chattels and cash.
(a) gifted a parcel of real property to each of his daughters (the applicant, the respondent, [D2] and [D3]);
(b) gifted the livestock depastured on the land each daughter received to that daughter;
(c) gifted vehicles, a cattle crate and other farming plant and machinery to the applicant;
(d) gifted a utility to [D2]; and
(e) divided the residue of his estate equally between his daughters.
[13] The applicant engaged solicitors (FC Lawyers) to act for her as a beneficiary, on 9 August 2022 - that is, before the date upon which probate was granted to the respondent as executor (21 October 2022).
[14] The respondent engaged her own solicitors (Norman & Kingston Lawyers) to assist her in the administration of the estate.
[15] As part of the administration of the estate, the respondent personally conducted an inventory of the deceased's chattels which included everything in the deceased's possession at his death (including the food in his fridge and things of very low value such as washing-up scourers, tea towels and matches). The beneficiaries were invited to "bid" for these chattels by way of a silent auction. A bid was not made for every chattel, but those that were the subject of a bid (or bids) were allocated to the highest bidder beneficiary. As I understand things, this was one of the ways in which the respondent attempted to ensure that the beneficiaries shared equally in the residue of the estate. The silent auction of the chattels concluded in around November 2023.
[16] Although it was not spelt out expressly in the evidence, I infer that, on 14 November 2023, the respondent invested estate funds of $2.6 million in a fixed term, interest bearing account. I infer that the investment was made with a view to distributing the capital, and the interest earned on it, upon its maturity, between the beneficiaries in such a way as to achieve the equal distribution of the residue as required by the will.
[17] Between 15 November 2023 and 6 December 2023, the real property was transferred to the beneficiaries in accordance with the will.
[18] On 22 December 2023, each beneficiary received an interim distribution of estate funds ($200,000 each), paid into their nominated bank account.
[19] The beneficiaries collected/received their silent auction chattels between Christmas 2023 and New Year 2024.
[20] On 16 January 2024, the respondent provided to her solicitors the inventory which recorded the outcome of the silent auction. Each beneficiary received a copy of the inventory at the same time as they collected/received their chattels.
[21] Meanwhile, the applicant had been complaining to her solicitor about the conduct of the respondent as executor. The details of the applicant's complaints are irrelevant to the application before me, but they provide context for the several requests by the applicant, through her solicitor, for documents, information et cetera.
The evidence tendered on the section 8 application
[22] In support of the section 8 application, the applicant's solicitor, Ms Kopilovic, filed two affidavits, one of which included what I initially assumed was all of the correspondence between the parties from 19 January 2024 onwards. In fact, the affidavit omitted correspondence from the respondent which responded to some of the applicant's requests. I am not sure why that correspondence was omitted.
[23] Further, much of the correspondence exhibited to Ms Kopilovic's affidavit seemed irrelevant to the section 8 application, although I infer that it was included to make the point that, historically, the respondent's lawyers had been slow to respond to requests made by the applicant's lawyers.
[24] In response to the section 8 application, the respondent's solicitor, Ms Keig, filed her own (mostly correspondence) affidavit.
[25] A feature of the correspondence overall was that, until about September 2024, correspondence from the applicant's solicitor was often simply ignored by the respondent's solicitor.
[26] A feature of the correspondence from the applicant's solicitor to the respondent's solicitor was that it sometimes made requests for information which had already been provided to the applicant, such as the silent auction chattel inventory or information about the distribution of family photographs.
[27] There were two "pushes" by the applicant for information, documents et cetera:
(a) one starting in late 2023 (although no correspondence from 2023 was before me) ("the first push") which concluded with the provision of information, documents et cetera in September/October 2024, after the threat of an application for an account of the estate; and
(b) the other starting in about May 2025; with additional requests added in June 2025 ("the second push").
[28] It is the second push for information which is the subject of the section 8 application.
Correspondence relating to the first push for information
[29] The bulk of the correspondence tendered on this application by the applicant concerned the first push for information, I infer to demonstrate the poor response of the respondent's then solicitor at the time, Mr Kingston, to requests for information in 2023/2024. However, as revealed below, the respondent's solicitor's responsiveness improved once Ms Keig (also from Norman & Kingston) assumed carriage of the matter.
[30] On 19 January 2024, the applicant's solicitor asked the respondent's solicitor for a statement of the assets and liabilities of the estate as at the date of death and "itemisation of legal fees to date". She made other requests for information, including (but not only) confirmation that all beneficiaries were being treated equally; "clarification" of, or the production of invoices and receipts in relation to, reimbursement of the respondent out of the estate; and information about the distribution of dip to the beneficiaries. She sought a reply by 30 January 2024.
[31] There was no reply to this January letter, nor to follow-up correspondence in February, March and May of 2024.
[32] On 17 May 2024, the applicant's solicitor threatened an application to remove the respondent as executor if there was no response to her correspondence by close of business 24 May 2024. That threat appears to have come to nothing.
[33] On 23 July 2024, the applicant's solicitor sought an account of the estate and other material within 30 days - clearly having regard to the assessment of estate account provisions of the UCPR. There was no response to that request.
[34] On 26 August 2024, the applicant's solicitor told the respondent's solicitor that she would file an application for an account by Friday 30 August 2024.
[35] On 29 August 2024, the applicant's solicitor sent a "rule 444" letter, which foreshadowed an application, including for an order that the executor pay personally its costs, if there was no substantive response to the letter of 23 July 2024 by 4 September 2024. On 30 August 2024, the respondent's solicitor, Mr Kingston telephoned the applicant's solicitor to explain why there had been no response to the previous correspondence. He said he had been busy with trials.
[36] On 1 September 2024, the respondent's present solicitor, Ms Keig assumed carriage of the matter and, as noted above, the respondent's solicitor's responsiveness improved thereafter.
[37] On 10 September 2024, Ms Keig sent a detailed letter to the applicant's solicitor responding to the various requests and queries made in the applicant's 2023/2024 correspondence. This letter of 10 September 2024 was omitted from Ms Kopilovic's affidavit.
[38] On 19 September 2024, the applicant's solicitor complained about the content of the 10 September 2024 response - including a complaint that it did not include details in relation to the reimbursement of the executor.
[39] Additionally, the applicant's solicitor informed the respondent's solicitor that, having considered the material provided on 10 September 2024, the applicant had further requests for information. She sought a response to those further requests by 26 September 2024. The respondent's solicitor responded on that date, but the applicant's solicitor complained that the response was "incomplete with several discrepancies".
[40] On 17 October 2024, the respondent's solicitor provided more material/information to the applicant's solicitor, including (but not only) information that the 2023/2024 tax return was not yet available.
[41] It seems that the applicant was ultimately satisfied with the material provided.
[42] On 4 February 2025, the applicant's solicitor wrote to the respondent's solicitor, making arguments about certain matters in dispute between the parties (for example, whether the costs of transferring the deceased's firearms to his grandson was properly an estate expense). She also asked for an update on the expected date of finalisation of the estate's tax return.
[43] She received no reply to that letter from the respondent's solicitor however other material before me reveals that the respondent's solicitor made numerous requests of the estate's accountant for the 2023/2024 tax return from 30 April 2025 until 17 July 2025.
[44] On 30 April 2025, the estate's accountants sent the 2023/2024 income tax return and associated documents to the executor to sign and return, for lodgement with the ATO.
[45] On 14 May 2025, the applicant's solicitor made another request for the 2023/2024 tax return and for other documents (including the inventory referred to above) and a trust statement to date. The letter sought a reply by 21 May 2025. The applicant's solicitor followed up by way of email on 23 May 2025 and by way of phone call (leaving a message) on 30 May 2025.
[46] The respondent's solicitor replied on 2 June 2025. Some of the content of this reply is worth setting out because it reflects the nature of the material sought (my emphasis):
"1 The tax accountant advises that the 2023/2024 tax return has been lodged and advises that the Notice of Assessment is still pending.
2 A copy of the Norman & Kingston Trust Account is enclosed.
[47] On 5 June 2025, the applicant's solicitor wrote to the respondent's solicitor complaining that the respondent's solicitor had not provided a copy of the 2023/2024 tax return or an updated assessment of assets and liabilities for the estate, including a list of all sold chattels - explaining that the list was required because the applicant wished to clarify the sale of the deceased's silverware.[2] The letter set out the number of times the applicant had asked for "information on the tax estimate for the estate for the financial year ended 30 June 2024 and a copy of the tax return". Also, the letter of 5 June 2025 asked for further information, having regard to the content of the information provided on 29 May 2025 (sic - ? 2 June 2025).
[48] The 5 June 2025 letter reduced the May and June requests to "one list" - see page 178 of the exhibits to the affidavit of Ms Kopilovic filed 10 July 2025. The list included requests for -
(a) a copy of the tax return for 2023/2024;
(b) an updated statement of assets and liabilities for the estate "(please include an updated list of sold chattels so our client may clarify the sale of the silverware)";
(c) an update on the investment account; and
(d) proof of, or information about, certain reimbursements to the respondent as executor (of approximately $7500) as well as the detail of invoices issued by persons who bore the respondent's surname for "work carried out on behalf of the estate".
[49] The respondent's solicitor did not respond to this letter by the time the letter nominated for its response - that is, by 12 June 2025.
[50] The applicant's solicitor followed up with a "rule 444" dated 24 June 2025, which complained about the lack of response to multiple requests for information and foreshadowed an application under rule 443 if the information were not provided by 30 June 2025. I note that an application under section 8 is not a rule 443 application.
[51] After the letter of 24 June 2025 was sent, the applicant instructed her solicitors that she did not wish to "burden the estate" with an account of the estate under the relevant rules as that process would be "lengthy and expensive". Instead, she decided to apply under section 8 of the Trusts Act.
The section 8 application
[52] The section 8 application, filed on 9 July 2025, sought orders which would achieve a response to the requests made on 5 June 2025. The application was served on the respondent's solicitors' firm, even though the applicant's solicitor had not checked that the firm had instructions to accept service. Those instructions were received on 15 July 2025.
[53] The estate's accountant sent the respondent's solicitor a copy of the 2023/2024 tax return and the March BAS on 24 July 2025. On that same day, the respondent's solicitor replied to the originating application by letter, observing that, in her view, the demands were for information beyond that to which a beneficiary was entitled, and appeared to be, rather than a complaint in relation to the administration of the estate, a "fishing" exercise - perhaps in advance of a challenge. She predicted that the application under section 8 would not be successful, but "in the interests of avoiding additional costs" sent to the applicant what the applicant admitted was 90 per cent of the material requested. The respondent's solicitor suggested that the applicant withdraw her section 8 application, or consent to its dismissal with no order as to costs.
[54] On 28 July 2025, the respondent's solicitor asked the applicant's solicitor whether she would be withdrawing her application.
[55] The applicant's solicitor replied on 29 July 2025. She contended that, because there had been no response to the rule 444 letter, she was left with no choice but to file the application. She said that it was "trite" that she should not have to seek court orders to "force" the respondent to "perform the most basic of her executor's duties". She did not agree with the course proposed and indicated that she would seek costs from the executor respondent personally on the indemnity basis in the amount of $26,300.50 - but she was prepared to compromise the costs issue if the respondent were to pay $21,900.50 (that is, a reduction in the $26,000-odd claimed, less counsel's appearance fee) personally.
[56] Later that same day, 29 July 2025, Ms Keig telephoned Ms Kopilovic. Ms Kopilovic was unavailable. Ms Keig left a detailed message about the withdrawal of the application. No more information about the content of that message was before me.
[57] On 30 July 2025 - the day before the hearing - the respondent's solicitor emailed the applicant's solicitor, asserting that that the amount claimed was "excessive" given that the only steps taken were the filing of a brief application and an affidavit which predominantly exhibited correspondence. The respondent accepted that the applicant was entitled to the estate account but said she ought to have proceeded under the rules, not by way of section 8. Rule 444 did not apply. And further, the affidavit in support of the application contained correspondence which related to requests for information which had been answered (and was therefore irrelevant) and otherwise, concerned documents first requested in June 2025.
[58] Obviously, the attempt to resolve the costs issue without resort to a hearing failed.
[59] Before me, the applicant's submissions boiled down to the following points:
(a) She should not have had to resort to an application to force the respondent executor to perform her "most basic duty" - that is, the "cardinal duty" "to account" to her; and to be "constantly ready" to render the accounts of the estate when called upon to do so by those interested in the account (relying on G E Dal Point_, Law of Executors and Administrators_, Lexis Nexis Australia, 2023 [12.35]).
(b) The respondent had - in effect - "surrendered" or "capitulated" in the face of the application.
(c) The executor had failed to perform her executorial duties, and the Court could make a personal costs order against her (as threatened), but the applicant no longer pressed for it. She contended that the estate ought to meet the costs of her application - on the indemnity basis.
(d) The respondent was on notice. As per [18] and [19] of her written outline:
"In a further letter (dated 29 July 2025) the Applicant put the Respondent on notice that the Applicant's costs of preparing the 24 June 2025 letter (but not the 5 June 2025 letter) as well as commencing and prosecuting the Application were:
The Applicant asks this Court to make an order that the estate pay the Applicant's costs of producing the 24 June 2025 letter, as well as commencing and prosecuting the application brought pursuant to s 8 of the Trusts Act 1973. The Applicant says that such a costs order would be "just" (which is the touchstone required by r 685)."
(e) The applicant offered to compromise her costs on the basis that the executor pay personally the applicant's costs, less the costs of counsel's appearance (of $4,400, inclusive of GST). The respondent had not agreed to that compromise.
[60] Before me, the respondent submitted that the applicant had unreasonably pressed on with her costs' application and if she did not succeed, she ought to pay the respondent's costs of the application for the following reasons.
[61] Even though the estate had been mostly distributed, the applicant sought not the current account of the estate but rather the provision of -
(i) A copy of the 2023/2024 tax return;
(ii) An updated statement of assets and liabilities of the estate, including a list of chattels sold by the estate;
(iii) An explanation of particular transactions, including supporting documents; and
(iv) An "update" on an investment account.
(i) The tax return was not held by the executor when the request for it was made.
(ii) The statement of assets and liabilities and the list of chattels had already been provided to the applicant before the application was made.
(iii) The requests were otherwise for justifications of particular transactions. Transactions may be "properly" tested under Part 10 of Chapter 15 of the UCPR. That remedy ought to have been utilised to the exclusion of more general remedies (relying on Josephson v Walker [1914] HCA 68; (1914) 18 CLR 691).
(The respondent seems to have overlooked the request for the investment update.)
[64] Further, the applicant's material was incomplete (and omitted some of the respondent's correspondence) and much of it was irrelevant. Persistence was unnecessary because the documents had been provided within ten days of the respondent's solicitor receiving instructions to accept service of the application. There was no undue delay or refusal to provide documents - some were first requested on 5 June 2025.
[65] Section 8 states (my emphasis):
(1) Any person who has, directly or indirectly, an interest, whether vested or contingent, in any trust property or who has a right of due administration in respect of any trust, and who is aggrieved by any act, omission or decision of a trustee or other person in the exercise of any power conferred by this Act or by law or by the instrument (if any) creating the trust, or who has reasonable grounds to apprehend any such act, omission or decision by which the person will be aggrieved, may apply to the court to review the act, omission or decision, or to give directions in respect of the apprehended act, omission or decision; and the court may require the trustee or other person to appear before it and to substantiate and uphold the grounds of the act, omission or decision which is being reviewed and may make such order in the premises (including such order as to costs) as the circumstances require.
(2) An order of the court under subsection (1) shall not -
(a) disturb any distribution of the trust property, made without breach of trust, before the trustee became aware of the making of the application to the court; or
(b) affect any right acquired by any person in good faith and for valuable consideration.
(3) Where any application is made under this section, the court may -
(a) if any question of fact is involved - determine that question or give directions as to the manner in which that question shall be determined; and
(b) if the court is being asked to make an order which may adversely affect the rights of any person who is not a party to the proceedings - direct that that person shall be made a party to the proceedings.
[66] Essentially, section 8 permits any person with an interest in trust property, who is aggrieved by an act, omission or decision of the trustee, to apply to the court for a review of the act, omission or decision, or to give directions in respect of the act, omission or decision, and the court may require the trustee to substantiate and uphold the grounds of their decision and make any order which the circumstances require.
[67] Section 8 does not contemplate "a wide ranging review of the administration of a trust estate, but rather review of particular acts, omissions or decisions", as Wilson J explained in Jaques v Public Trustee of Qld as Executor and Trustee of the Estate of Jaques dec'd [2008] QSC 108 at [17]. Indeed, as her Honour went on to say, the Court has traditionally been reluctant to interfere with the discretionary acts of trustees.
[68] Macrossan J (as his Honour then was) said in Re Whitehouse [1982] Qd R 196 at 203 - 204:
"It seems to me that the power of the court under s. 8 to review a trustee's acts and decisions is one which should not be narrowly construed. By this I mean that the jurisdiction should not be read down or unduly confined. On the other hand, I think it would be wrong to suggest that although the jurisdiction to undertake a review is wide, the court would lightly interfere with a discretionary decision made by a trustee. The courts will continue to bear in mind that discretionary trust powers are vested in trustees for the purpose of decision by them and the traditional reluctance to interfere with their decisions will, for good reasons, continue. If, notwithstanding this reluctance, a proper case is made out, then I do not doubt that the court has wide power ... a heavy onus lies upon a person seeking a review of a trustee's decision."
[69] In Burns v Burns & Anor [2008] QSC 173, Chesterman J (as his Honour then was) noted that that that approach to section 8 was approved by the Full Court in Tierney v King [1983] 2 Qd R 580 at 583. And by reference to the decision of the High Court in Attorney-General for the Commonwealth v Breckler & Ors [1999] HCA 28; (1999) 197 CLR 83 at 99 - 100 and 115, his Honour explained that decisions of a trustee said to be "unfair, unreasonable or unwise" are beyond the review of the courts.
[70] But that is beside the point here. The section 8 application did not seek a review of any act, omission or decision by the respondent as executor. Rather, it sought orders directing the respondent to provide the applicant with two estate documents; information about an estate investment; and explanations/justifications for payments made by the estate.
[71] The applicant told the respondent that she chose to make an application under section 8 of the Trusts Act, rather than proceed under rules 645 and 646 of the UCPR, because the UCPR option was too costly.
[72] Under rule 645 of the UCPR ("Application by beneficiary for filing, assessing and passing estate account") a beneficiary of an estate may apply to the court for an order that the trustee of the estate file an estate account[3] and an order that the account be assessed and passed. But before such an application may be made, the beneficiary must comply with rule 646 ("Requirements for making application for filing, assessing and passing estate account").
[73] Rule 646 requires a beneficiary to serve written notice on the trustee, requesting an estate account to be prepared and served upon the beneficiary within 30 days. If the beneficiary is not satisfied with the estate account, they must serve on the trustee a notice of objection to it which states inter alia the reason for the objection. A rule 645 application can be made only if an estate account is not served within 30 days, or no response to the notice of objection is received within 21 days; or a response to the objection has been served on the beneficiary.
[74] If certain pre-requisites are met, the relevant rules ultimately permit an examination of the estate account to determine whether the account is accurate or not, and whether payments from it have been made properly or not - see Kirkman & Anor v The Salvation Army (Qld) Property Trust & Ors [2007] QSC 120.
[75] Helg v Sergiacomi & Another [2011] QSC 322 concerned an application by a beneficiary (Ms Helg), brought under the relevant rules and section 8, for an examination and passing of the account of the estate of her late father.
[76] With respect to Ms Helg's application under the rules, McMeekin J explained at [8] that the right to require a formal examination and passing of accounts by executors is not absolute/not "for the asking". It arises only when a Court requires it in accordance with 52(1)(b) of the Succession Act 1981 (Qld).[4] And for the Court to require it, grounds for concern about the conduct of the executor must arise. His Honour said at [10] (my emphasis):
"Both the legislative provision and the rule [(rule 644 (Filing and passing account on application of beneficiary) - now, in effect, rule 645)] make it plain that the respondents' submission that an order for the examination and passing of executor's accounts is not for the asking is correct: see Re Schilling [1995] 1 Qd R 696.[5] The terms of the rule indicate that a reason must be stated and that reason when identified must, at least, lead the Court to the view that the making of an order is "appropriate". Evidence suggesting grounds for concern about the conduct of the executors and indicative that the applicant's rights may have been adversely affected, albeit not conclusively shown, would be sufficient ..."
[77] The applicant in Helg was self-represented. His Honour attempted to have her identify discrepancies which would justify an order under (then) rule 644. His Honour observed that, whilst many allegations were made, they were not always relevant, and if relevant, were not always supported by evidence.
[78] There was one matter which did arouse his Honour's concern but, rather than put anyone to the expense of an examination and passing of the accounts, his Honour directed the respondent to put on further affidavit evidence about the matter. Upon consideration of that further evidence, his Honour dismissed the application with costs.[6]
[79] Ms Helg's application under section 8 of the Succession Act was dismissed because she had not identified any act or decision of the respondent executors which required review - see [132].
[80] In March 2014, Ms Helg brought another application against the executors, again heard by McMeekin J - this time seeking disclosure of documents from the executors of her father's estate: Helg v Sergiacomi & Another [2014] QSC 50.
[81] The 2014 application as composed was misconceived and relied on a rule or legislation which would not have achieved the disclosure the applicant sought. Nevertheless, his Honour listened to the applicant's complaints but was left with no reason to think that the respondents were hiding anything from her - see [34].
[82] As to Ms Helg's complaints about the way in which the respondent executors had discharged their duties, his Honour observed that, if the applicant wished to pursue them, then she ought to bring proceedings by way of Claim and Statement of Claim because numerous issues of fact were involved. His Honour further observed that the applicant might have a basis for a claim under section 8 of the Trusts Act but told her that in such an application she would need to "identify with precision each act of the trustees that she calls into question" - see [37].
[83] As I have observed, the present applicant's section 8 application was not for a review of a relevant act, omission or decision of the respondent; nor did the applicant call into question any act, omission or decision of the respondent which might give the Court cause for concern.
[84] Further, I agree with the submissions of the respondent that the requests for information about certain estate expenses had the flavour of a "fishing" expedition about them.
[85] Those requests took a similar form. It is enough to set out just one as an example:
"Under the trust account statement of Norman & Kingston Lawyers dated 31 March 2023 and provided to FC Lawyers on 2 June 2025, on 31 March 2025, [X] Youles received payment of $11,685.00 for 'Payment of invoice 66 being for work carried out on behalf of Estate I G Wild'. The Respondent is to provide the Applicant:
[86] The application did not seek a review of the payment to [X] Youles (or of any of the payments). Nor did it ask the court to require the respondent to substantiate and uphold the grounds for the decision to pay [X] Youles $11,685.00 (or for any other of the payments).
[88] Indeed, the outcome of the litigation in Helg v Sergiacomi & Another additionally supports an argument that the applicant was mistaken in her understanding that an application under the relevant rules for an account of the estate, without evidence which might cause a court to be concerned about any aspect of the matter, would have achieved the production of the documents and information she sought.
[89] It would have been preferable had the respondent's solicitor replied to the May and June 2025 correspondence before 24 July 2025 - making the points that she made in that letter about the nature of the requests, and the element of repetition involved in them.
[90] But the respondent behaved reasonably in the face of the application. Even though she considered it misconceived - she provided the material sought (or 90 per cent of it).
[91] The section 8 application to the Court did not seek a review of any act, omission or decision of the respondent as executor, nor did it ask the court to require the respondent to substantiate or uphold the grounds of any act, omission or decision made by her as executor. It was a misjudged attempt to obtain estate related documents and information. Therefore it cannot be said that the respondent capitulated or surrendered in the face of the application upon realising that it was in an unwinnable position. Indeed, as noted, the respondent correctly considered the application to be misconceived.
[92] The applicant's application for costs fails.
[93] Additionally, in my view, the applicant pressed on unreasonably. The costs matter ought to have been resolved as suggested by the respondent.
[94] For both of those reasons, the applicant is to pay the respondent's costs of her response to the costs' application on the standard basis.
[1] That correspondence was not before me.
[2] Which seems to have comprised 6 cake forks and 6 teaspoons - see page 111 of the exhibits to the affidavit of Ms Keig.
[3] Which must conform to the requirements of rule 648.
(1) The personal representative of a deceased person shall be under a duty to -
(a) ...
(b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court; and
(c) ...
(d) ...
(2) If the personal representative neglects to perform his or her duties as aforesaid the court may, upon the application of any person aggrieved by such neglect, make such order as it thinks fit including an order for damages and an order requiring the personal representative to pay interest on such sums of money as have been in the personal representative's hands and the costs of the application.
[5] In Re Schilling, Ryan J said that an order under the former rule (O 73 r 1) was not made as of course, and an applicant needed to state the reasons for the application.
[6] Helg v Sergiacomi & Another (No 2) [2011] QSC 349.
Wild-Baldock
Youles
(1914) 18 CLR 691
(1999) 197 CLR 83