Coffey v O'Halloran

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0037

JOHN LAWRENCE COFFEY	Applicant
v
RUTH STANISLAUS O’HALLORAN	Respondent

---

JUDGES:	BEACH and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 52
JUDGMENT APPEALED FROM:	[2023] VSC 51 (Moore J)

---

WILLS AND ESTATES – No application for probate during nine year period between deceased’s death and trial – Named executors in dispute – Mistrust between executors – Where each executor alleges other in situation of conflict – Power of court to pass over named executors and appoint independent administrator – Application for leave to appeal from trial judge’s orders passing over named executors and appointing independent administrator – Proposed grounds of appeal devoid of merit – Proposed appeal having no prospects of success – Leave to appeal refused.

---

Counsel
Applicant:		In person
Respondent:		Mr NJ Baum
Solicitors
Applicant:
Respondent:	McNab McNab & Starke

BEACH JA
LYONS JA:

Joan Jackman Coffey (‘the deceased’) died in February 2014, a little over ten years ago. She left a will dated 26 September 2008 (‘the will’). In the will, she appointed her son, John Lawrence Coffey (‘the applicant’ or ‘Mr Coffey’), her daughter, Ruth Stanislaus O’Halloran (‘the respondent’ or ‘Mrs O’Halloran’), and her accountant, Robert Henry Wald, as the executors and trustees of her estate.
In March 2014, Mr Wald executed a Deed of Renunciation. In the same month, Mr Coffey and Mrs O’Halloran engaged a solicitor, John Blanch, to prepare an application for a grant of probate of the will. Mr Blanch took a number of steps in preparation for the making of an application in accordance with his instructions. Over the ensuing years, however, no application was made. Mr Coffey and Mrs O’Halloran dispute which of them is responsible for this egregious delay and their consequential failure to obtain a grant of probate.
On 4 March 2019, Mrs O’Halloran filed an originating motion in the Trusts, Equity and Probate List of the Supreme Court seeking relief against Mr Coffey and Mr Blanch. In her originating motion, relying on s 15 of the Administration and Probate Act 1958 (‘the Act’), Mrs O’Halloran sought orders that:
(a)Mr Coffey show cause why he should not bring the will into Court and either prove the will or renounce probate of it;
(b)in the alternative to (a), Mrs O’Halloran be entitled to prove the will;
(c)Mr Blanch deliver the original will to the Registrar of Probates; and
(d)the costs of and incidental to the application be paid by Mr Coffey personally, without recourse to the estate of the deceased.
Mr Blanch did not take an active part in the proceeding. After a number of directions hearings, conducted variously before either Moore J or McMillan J, McMillan J ordered that Mrs O’Halloran’s application be determined on the papers. On 2 October 2020, pursuant to that order, and in accordance with reasons published that day,[1] her Honour ordered that Mr Coffey and Mrs O’Halloran be passed over as executors of the will, and that leave be granted to Nathan Kuperholz, a solicitor, to apply for a grant of letters of administration with the will annexed.[2]
[1]O’Halloran v Coffey [2020] VSC 649 (McMillan J).
[2]Ibid [94].
Following the making of those orders, Mr Coffey appealed to this Court on a number of grounds, including a ground that, over his objection, the application had been determined on the papers without a trial. On 26 February 2021, this Court upheld Mr Coffey’s appeal on that ground, set aside the 2 October 2020 orders, and remitted the proceeding to the Trial Division for hearing and determination by a differently constituted court.[3]
[3]Coffey v O’Halloran [2021] VSCA 29 (Beach, Niall, T Forrest JJA) (‘First Appeal Reasons’).
On 13 August 2021, Mr Coffey filed a summons seeking orders that:
(a)Mrs O’Halloran show cause why she should not renounce probate of the will;
(b)Mrs O’Halloran be passed over as an executor of the will;
(c)Mr Coffey be permitted to uplift the will for the purpose of his application for probate;
(d)‘pursuant to order 54.06, the court declines to order administration of the Estate’; and
(e)each party bear their own costs.
On 19 August 2021, a judicial registrar made orders that Mr Coffey’s summons be listed for hearing and determination together with the trial of the originating motion. On 29 October 2021, Moore J fixed the originating motion and Mr Coffey’s summons for trial to commence on 29 November 2021. In addition to that order and a number of other orders, his Honour made the following order:
Pursuant to s 49 of the Civil Procedure Act 2010, the trial of the originating motion and [Mr Coffey’s] summons dated 13 August 2021 be conducted by reference to the following three key issues:
(a)Whether in this proceeding the Court has power to order that both the plaintiff and the first defendant, or the plaintiff alone, be passed over as executors of the estate of Joan Jackman Coffey? (‘Issue 1’)
(b)If Issue 1 is answered in the affirmative, whether the power to pass over executors should be exercised by the Court ordering that the plaintiff and the first defendant, or solely the plaintiff, be passed over as executors of the estate of Joan Jackman Coffey? (‘Issue 2’)
(c)If the plaintiff and the first defendant are passed over as executors of the estate of Joan Jackman Coffey, whether an independent person should be appointed to administer the estate? (‘Issue 3’).
On 29 November 2021, Mrs O’Halloran’s application and Mr Coffey’s summons came on for hearing before Moore J. His Honour heard the matter over five days in November 2021, December 2021 and February 2022. Mrs O’Halloran and Mr Coffey each gave evidence at trial, as did Mr Blanch and Mr Wald (who were called by Mrs O’Halloran); and Mr Coffey’s brother, Michael Coffey (who was called by Mr Coffey).
On 23 March 2023, in accordance with reasons published on 17 February 2023,[4] his Honour made orders that Mr Coffey and Mrs O’Halloran be passed over as executors of the will, and that leave be granted to Lachlan Vallance, a solicitor, to apply for a grant of letters of administration with the will annexed. His Honour also ordered that Mrs O’Halloran’s costs of the proceeding be paid out of Mr Coffey’s share of the residuary estate of the deceased.
[4]O’Halloran v Coffey [2023] VSC 51 (Moore J) (‘Reasons’).
Mr Coffey now seeks leave to appeal against his Honour’s orders. His proposed grounds of appeal (as typed in his application for leave to appeal) are:
Improper Procedure:
1.His Honour erred when he failed to ensure that there was proper pleadings, disclosure, discovery and interrogatories in a contentious matter with defendants in accordance with Order 4 of the Supreme Court Civil Procedure Rules
2.His Honour erred by allowing a matter with “substantial dispute of fact” [SCR Order 4] to proceed by Originating Motion.
3.His Honour erred when he allowed a proceeding to commence based on an unethical/criminal threat to obtain documents from the duly instructed Court Officer John Blanch ( Second Defendant) [CB 550]
4.His Honour erred when he allowed the matter to proceed without amendment of the Originating Motion resulting in a perverse proceeding without any mention of “Passing Over” anything.
5.His Honour erred when he created an application out of the plaintiff’s submission that all executors be “passed over” without hearing the defendant’s argument.
6.His Honour erred by not hearing and/or not understanding JC’s application [CB 88 ] before the main trial as it involved allegations of RO’s malfeasance before Joan’s death that were excluded from trial.
7.His Honour erred by engaging in an unholy alliance by accepting RO’s effective conditional renunciation of probate that caused the trial to be reduced to an attack on the first defendant and other beneficiaries.
Non Compliance with Higher Court
8.His Honour erred when he set himself up as a court differently constituted to McMillan J due to their undeniable entanglement in this matter.
9.Moore J erred by not disqualifying himself from this matter;
10.His Honour erred by failing to try “all issues” skewing his view of the facts by failing to scrutinise the former managers’ [FM] behaviour particularly absconding with, stealing, concealing and/or otherwise denying access to Joan’s business accounts
Failure to consider law
11.His Honour erred by failing to even mention the executors’ obligation under s.28 APA to swear that the inventory was “True and Perfect” and otherwise not lie to the court in the application for probate. The failure of RO to comply with s.28 APA largely caused the delay.
12.His Honour erred when he failed to apply the statutory provisions of s.15 APA that provides remedies for both the applicant for administration and the respondent executor.
13.His Honour erred in finding a power to “pass over” executors exists and/or is applicable or even necessary in the common circumstance of an attorney self enriching that s.15 adequately handles.
Failure to consider alternatives
14.His Honour erred in dismissing all executors when discharging or removing one of two would have ended any “impasse”
15.His Honour erred by failing to infer that asking to be “passed over” was an admission of guilt by the plaintiff.
Evidentiary Failings
16.His Honour erred in ignoring the misassigned assets in Inventory No 1 & Inventory No 2 drafted by the second defendant Court Officer John Blanch & purporting to adopt either one as acceptable. [ JP 110 ]
17.His Honour erred by “passing over” JC as an executor appointed under Joan’s Will without:
a.testing the plaintiff’s allegations and
b.considering the rebuttal & clarifications in affidavit JLC 006 [CB 2913] & JLC 014 [CB 014] and
c.noting that JC undertook not to self-enrich from disputes.
18.His Honour erred when he failed to find RO caused the delay before probate because RO swore , in front of two witnesses [CB 2997 Para 3-5], a known inaccurate inventory [ CB 697 ] was “True and Perfect” and then signed the application as sworn. Perversely RO was found blameless for the delay caused by RO by swearing that inventory No 1 was accurate and also failing to disclose.
19.His Honour erred by failing to observe that Inventory No 3 was a detailed response to & correction of errors in Inventory No 2. (revised draft inventory)
111. In providing Mr Coffey with a revised draft inventory, it is also relevant to note that Mr Blanch expressly informed Mr Coffey that it was possible to finalise an inventory on the basis that it included notes recording that certain matters were in dispute. Mr Coffey was well aware of this, but took no action to seek to resolve matters by adopting such a pragmatic approach. [ JP 111 ]
Beneficiaries Rights
20.His Honour erred by dismissing the beneficiaries rights & wishes without testing the provably false allegations of conflict he relied on.
21.His Honour erred by redirecting blame for the delay & failure to produce a valid inventory to the innocent beneficiaries via a purported association with JC.

Proposed grounds 8, 9 and 10

Given that proposed ground 9 asserts that Moore J ‘erred by not disqualifying himself from this matter’ it is appropriate to commence our analysis with that ground and the related proposed grounds 8 and 10.[5]
[5]See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 581–2 [2]–[3] (Gummow ACJ), 611–2 [117] (Kirby and Crennan JJ). See also Kazal v Thunder Studios Inc (California) [2023] FCAFC 174, [255] (Wheelahan J, with whom Wigney and Abraham JJ agreed).
In his written case in this Court, in support of proposed grounds 8, 9 and 10, Mr Coffey contended that ‘the spirit’ of this Court’s orders made following the publication of the First Appeal Reasons ‘has been ignored’. There is no substance in this contention. In its order that the proceeding be remitted to the Trial Division for hearing and determination by a differently constituted court, this Court said no more than that the trial of the proceeding should be conducted before a judge other than McMillan J — her Honour having already determined matters adversely to Mr Coffey following the hearing conducted on the papers. Nothing said in the First Appeal Reasons provided any impediment to Moore J hearing the remitted trial.
Further, nothing in the First Appeal Reasons, and nothing in this Court’s orders made following their publication, provided any impediment to Moore J making the order he made on 29 October 2021. Indeed, when one has regard to the history of this proceeding and the issues sought to be litigated, his Honour was plainly correct to make the order he made on 29 October 2021 in relation to the three issues identified in that order, and to conduct the trial by reference to those three issues.
To the extent that proposed ground 9 asserts that Moore J should have disqualified himself for bias (either actual or ostensible), that assertion must be rejected. First, we note that no bias application of any kind was made by Mr Coffey to Moore J. Secondly, having now perused the transcript of the trial and the various pre-trial directions hearings, we have concluded that there is no basis whatsoever upon which it could sensibly be suggested that Moore J should have disqualified himself from hearing the matter.
Proposed grounds 8, 9 and 10 must be rejected.

The Reasons

The judge commenced the Reasons by identifying the principal controversies in the proceeding as being whether the Court had power to make orders ‘passing over’ the executors of the estate and, if it did, whether and in what way that power should be exercised in the circumstances of this case.[6]
[6]Reasons, [1].
In the course of summarising the facts, the judge noted that, after specific bequests, the will provided for the residue of the estate to be divided into six parts, with five per cent of the residue going to Mrs O’Halloran, and another five per cent going to Mr Coffey.[7]
[7]Ibid [10].
The judge summarised the various failed attempts to obtain a grant of probate.[8] In the course of doing so, his Honour noted that Mr Blanch prepared an application for probate in June 2014 which contained a draft inventory recording that the estate had gross assets of about $6.1 million and total liabilities of about $220,000; and that, while Mrs O’Halloran signed the application prepared by Mr Blanch, Mr Coffey did not, as he did not think that the inventory prepared by Mr Blanch was accurate. The judge described the progress of the matter between 2015 and the commencement of Mrs O’Halloran’s proceeding as follows:
Between about 2015 and the commencement of this proceeding in 2019, Mrs O’Halloran and Mr Coffey also exchanged an extensive amount of correspondence about various issues concerning the administration of the estate, many of which remained unresolved. The issues which were the subject of dispute in this period included: the negotiation of leases of estate property to telecommunication providers for the purposes of installing and operating phone towers; the existence of an agreement between the deceased and Mr Coffey as to his use of her land; the involvement of non-executor family members in decision making and negotiations on behalf of the estate; contracts with sharefarmers occupying estate land; the appointment of and payment to accountants for the estate; the payment of council rates in relation to estate property; the registration of the estate for ‘a 'grower registration number’ and related ‘NGR card’; and the manner in which instructions on behalf of the estate would be given.[9]
[8]Ibid [13]–[24].
[9]Ibid [24].
After describing the history of the litigation, the judge turned to the three issues identified by him in his order of 29 October 2021.

Issue 1: whether the court had power to pass over a named executor

After setting out the parties’ submissions,[10] the judge observed that the Court’s power to pass over a named executor has been recognised in a number of recent judgments of the Court. His Honour said that that recognition proceeded from ‘a sound understanding of the Court’s jurisdictions and powers’.[11] His Honour then sought to make good that proposition by referring to a number of statutory provisions which bore on the issue, including s 17 of the Supreme Court Act 1958, s 85(3) of Constitution Act 1975 and s 15 of the Act; as well as a number of relevant authorities, including Re Munro,[12] Re Arklie (No 2),[13] Re Boglis,[14] In the Goods of Samson,[15] In the estate of Potticary,[16] In the Estate of Leguia [17] and Re Giggins.[18]
[10]Ibid [34]–[51].
[11]Ibid [52].
[12][2018] VSC 747 (Derham AsJ) (‘Re Munro’).
[13][2019] VSC 350 (Moore J) (‘Re Arklie (No 2)’).
[14][2022] VSC 309 (McMillan J) (‘Re Boglis’).
[15](1873) LR 3 PD 48.
[16][1927] P 202.
[17][1934] P 80.
[18][1969] VR 208 (Gowans J) (‘Re Giggins’).
After analysing the various statutory provisions and authorities referred to above, the judge concluded that the Court had the power to pass over a named executor. The judge said that, while it was a serious matter to pass over an executor named by a deceased, the power of the Court to do so was well-established.[19] His Honour then referred to In Estate of Crane,[20] in which Besanko J had set out some of the recognised circumstances where executors have been passed over (one of which is where the relationship between the named executors has deteriorated to a point where there is no realistic expectation that they will be able to work together in the interests of the estate).

Issue 2: whether the court should order that both executors (or only Mrs O’Halloran) be passed over

[19]Reasons, [55].

[20](2005) 93 SASR 198 (‘Re Crane’).

The judge observed that Mrs O’Halloran advanced four grounds in support of her application that Mr Coffey be passed over: first, the executorial duties of the estate had been neglected; secondly, Mr Coffey and Mrs O’Halloran remained in an ongoing dispute about important matters relating to the estate; thirdly, both Mr Coffey and Mrs O’Halloran allege that the other is conflicted in their role as executor; and fourthly, Mr Coffey is conflicted between his responsibilities as executor and his interest as a residuary beneficiary. The judge also noted Mrs O’Halloran’s additional submission that, although not determinative, Mr Coffey’s character was a relevant factor.[21]
[21]Reasons, [76].
In relation to the ‘neglect of executorial duties’, the judge noted that, although Mrs O’Halloran signed an application for a grant of probate in June 2014 prepared by Mr Blanch, Mr Coffey had refused to sign that application.[22]
[22]Ibid [77].
The judge described Mr Coffey’s submissions on issue 2 as adopting ‘a discursive approach’, which did not separately address the grounds advanced by Mrs O’Halloran.[23] The judge summarised Mr Coffey’s contentions, noting the following submissions made by him:
(1)The court should not be burdened by executors demanding to be relieved of their duty while deliberately obstructing others from doing theirs.[24]
(2)Mrs O’Halloran’s application for him to be passed over as an executor was ‘nothing less than challenging a will to avoid a testator’s wishes’; and passing over the executors ‘amounted to usurping the testator’s last will and testament’.[25]
(3)The essence of the underlying dispute between him and Mrs O’Halloran ‘concerned the refusal of the [an entity known as the O’Halloran partnership] to provide access to the deceased’s financial records’.[26]
(4)The ‘core issue and main cause of contention was the lack of a verifiable inventory which had caused an impasse and a five year delay’.[27]
(5)It was Mrs O’Halloran’s ‘obstructionist, unresponsive and uncooperative manner’ which had delayed the application for probate for five years; and ‘the problem would not go away with the appointment of an independent administrator’.[28]
(6)There was no conflict of interest between Mr Coffey’s duties as an executor and his other interests.[29]
(7)If Mr Coffey was passed over, ‘90 per cent of the beneficiaries would lose any influence and control over the assets left to them by the deceased’.[30]
(8)Mr Coffey had done nothing wrong; passing him over was an expensive option that was not in the beneficiaries’ best interests; and five of the beneficiaries did not want him to be passed over.[31]
[23]Ibid [92].
[24]Ibid [95].
[25]Ibid.
[26]Ibid [96].
[27]Ibid [97].
[28]Ibid.
[29]Ibid [98].
[30]Ibid [99].
[31]Ibid.

The judge concluded that, while a court will not readily pass over a named executor, it will do so when necessary to ensure the due and proper administration of the estate and the interests of the parties beneficially entitled to it.[32] The judge was ‘amply satisfied’ on the evidence before him that the due and proper administration of the deceased’s estate and the interests of all persons beneficially entitled to it warranted both Mrs O’Halloran and Mr Coffey being passed over as executors.
[32]Ibid [100].
This was for a number of reasons. First, the profound failure of each of them to apply for a grant of probate for over eight years since the deceased’s death. The judge noted the difference between them as to the assets of the estate (identified by Mr Coffey as being approximately $1,800,000 greater than Mrs O’Halloran) and liabilities of the estate (identified by Mr Coffey as being approximately $200,000 less than Mrs O’Halloran) concluding that ‘this critical and significant difference underlines the need for an inventory to be prepared by an independent person who is capable of impartially assessing the value of the deceased’s estate’.[33]
[33]Ibid [107]–[109].
In this context, the judge rejected what he described as Mr Coffey’s ‘attempt to fix Mrs O’Halloran with responsibility for the failure to finalise an inventory of assets and liabilities’.[34] In doing so, the judge noted that, on the evidence, Mrs O’Halloran’s inventory was prepared by a solicitor while Mr Coffey’s version was prepared without legal or accounting advice.[35]
[34]Ibid [110].
[35]Ibid.
The judge also rejected Mr Coffey’s claim that Mrs O’Halloran did not until 2019 provide a response to Mr Coffey’s revised inventory which he prepared in 2015. The judge found that, in light of the extensive disputes between Mr Coffey and Mrs O’Halloran, it would have been reasonably apparent by Mrs O’Halloran’s failure to respond that she did not agree with Mr Coffey’s revised inventory. The judge considered this was made clear by October 2017 at the latest when Mr Blanch sent a letter to both executors noting the dispute over the inventory.[36] Indeed, the judge concluded that Mr Coffey’s failure to prepare an inventory as at the date of the deceased’s death (as recommended in Mr Blanch’s letter of October 2017) demonstrated Mr Coffey’s unsuitability to act as executor and the ‘obstructionist, unresponsive and uncooperative manner’ in which he approached his role of executor.[37]
[36]Ibid [112]–[113].
[37]Ibid [113].
Second, the judge concluded that Mr Coffey did not have a workable relationship with Mrs O’Halloran, noting that Mr Coffey conceded this was so. The judge referred to the fact that Mr Coffey expressed the opinion that Mrs O’Halloran was the deceased’s ‘former corrupt attorney’ who had ‘stripped’ the deceased’s assets during the lifetime of the deceased. As a result, the judge said that, given Mrs O’Halloran is a beneficiary of the estate, he was ‘readily satisfied that Mr Coffey would be most unlikely to bring an impartial, independent mind to the discharge of his duties as an executor’.[38]
[38]Ibid [115].
Third, the judge dealt with Mr Coffey’s conflict of interest regarding his functions as executor which were denied by Mr Coffey. The judge referred to Mr Coffey’s claim that the ‘O’Halloran Partnership’ (a partnership conducted by Mrs O’Halloran and her husband) owes debts of $2.175 million and $646,844 to the deceased’s estate which would have a significant effect on Mr Coffey’s entitlement as a residuary beneficiary.[39]
[39]Ibid [116].
The judge then referred to five other alleged conflicts asserted by Mrs O’Halloran relating to disputed assets and liabilities of the estate.[40] These appear to have contributed to the failure between Mrs O’Halloran and Mr Coffey to agree upon the inventory and obtain a grant of probate.
[40]Ibid [85]–[90].
The judge stated that if the underlying allegations were true, a conflict would necessarily arise between Mr Coffey’s duties as executor and his personal interests. The judge referred in particular to disputed items of plant and machinery of the estate which appeared to be located at the Kewell Park Homestead (part of the Coffey family farm holdings), which is owned by a company over which Mr Coffey has ‘reasonable influence’.[41] He also recorded that this company demanded storage fees from the estate while denying ‘the executors’ entry unless an entry fee had been paid.[42] However, the judge concluded that it was not necessary to determine the truth of the various allegations of conflict. This was because the claims made by Mrs O’Halloran required careful investigation and that in light of Mr Coffey’s personal interest and the animosity between Mr Coffey and Mrs O’Halloran, Mr Coffey was ‘strikingly ill-suited to that task’. As a result, the judge concluded that Mr Coffey was ‘hopelessly conflicted between, on the one hand, his role as an executor and, on the other, his interests as a residuary beneficiary’.[43]
[41]Ibid [86].
[42]Ibid [87].
[43]Ibid [118].
After analysing the evidence, the judge concluded his analysis of issue 2 by saying:
It is apparent from all the evidence that the administration of the deceased’s estate has effectively become paralysed under the weight of Mrs O’Halloran and Mr Coffey’s dysfunctional and conflictual relations and a plethora of actual and alleged conflicts of interest. I reject the substance of Mr Coffey’s case that responsibility for this state of affairs rests overwhelmingly with Mrs O’Halloran; to the contrary, Mr Coffey carries at least a high degree of culpability for this situation for the reasons I have given.
… In any event, for the reasons I have given, I am satisfied that the interests of all of the persons beneficially entitled under the deceased’s estate, and the due and proper administration of the deceased’s estate, is best served by exercising the Court’s power to pass over executors by ordering that both Mrs O’Halloran and Mr Coffey be passed over as the executors of the deceased’s estate. The question posed by Issue 2 is answered accordingly.[44]

Issue 3: whether an independent person should be appointed to administer the estate

[44]Ibid [119]–[120].

The judge noted Mrs O’Halloran’s position on issue 3 was that an independent person should be appointed to administer the estate; whereas Mr Coffey’s primary submission was that his brother, Michael Coffey, and/or Rod Jones (the domestic partner of his sister, Frances Coffey) would be suitable and competent administrators of the estate.[45]
[45]Ibid [122]–[123].
The judge noted that Mrs O’Halloran advanced three principal reasons why an independent administrator should be appointed: first, there was ‘considerable acrimony within the family’;[46] secondly, the administrators proposed by Mr Coffey were ‘inappropriate candidates to be appointed administrators of the estate’;[47] and thirdly, the estate ‘is large and complex such that its proper administration would require management skills beyond those of a lay person’.[48]
[46]Ibid [125].
[47]Ibid [126]–[129].
[48]Ibid [130]–[131].
In summarising Mr Coffey’s submissions, the judge noted that Mr Coffey repeated the submission (already rejected by his Honour in relation to issue 1) that the wording of s 15 of the Act ‘makes it unlawful for the Court to grant administration to anyone other than an interested person or State Trustees’.[49]
[49]Ibid [132].
The judge noted Mr Coffey’s denial that there was ‘any acrimony between the beneficiaries’.[50] The judge observed that Mr Coffey disagreed with the characterisation of the estate as ‘complex’ — Mr Coffey describing the estate as ‘a few parcels of land’.[51] The judge also observed that Mr Coffey opposed the appointment of an independent administrator on the basis that such an appointment would cause additional costs to be incurred.[52]
[50]Ibid [133].
[51]Ibid [134].
[52]Ibid [135].
The judge said that the ‘paralysis which has afflicted the administration of the deceased’s estate must be overcome as a priority’.[53] His Honour concluded that, in the circumstances of the case, an administrator of the estate would need at least two key attributes: first, professional experience in administering estates commensurate with the complexities of this estate; and secondly, a ‘firmly independent disposition with which to navigate the strongly-held positions of Mr Coffey and Mrs O’Halloran and the other beneficiaries of the deceased’s estate’.[54] The judge said that, contrary to Mr Coffey’s submissions, an administrator would also need to bring a dispassionate approach in light of the acrimony which has emerged over the estate. His Honour said that a professional administrator, such as a legal practitioner, with experience in administering complex estates, would be best placed to meet these requirements.[55]
[53]Ibid [136].
[54]Ibid.
[55]Ibid.
In determining that an independent person should be appointed to administer the estate, the judge concluded:
… I have no confidence that any of the persons nominated by Mr Coffey would be able to administer the estate in accordance with law. None of them have any legal or accounting qualifications and none are demonstrably independent from the positions being asserted by Mrs O’Halloran and Mr Coffey. To the contrary, the evidence indicates that, at different times they have each supported Mr Coffey in his claims. They are, or are reasonably perceived as being, in Mr Coffey’s ‘camp’.
There are two further reasons why it would not be appropriate to appoint Michael Coffey as administrator of the deceased’s estate. First, he is not resident in the jurisdiction, and has not been resident in the jurisdiction for many years. Secondly, I was unimpressed by his evidence to the Court. In his evidence, he appeared keen to repeat and assert many of the claims made by Mr Coffey in his case and at times was reluctant to respond to the most straightforward of questions. I have no confidence that Michael Coffey would bring the necessary independence of mind and impartiality as an administrator of the deceased’s estate.
It is accordingly appropriate that an independent person be appointed to administer the deceased’s estate. Such a person will be able to act impartially and to ensure the due administration of the estate in the interests of all the beneficiaries.[56]
[56]Ibid [137]–[139].

Consideration

We have already rejected proposed grounds 8, 9 and 10. In the remaining 18 proposed grounds of appeal, Mr Coffey:
(1)makes various complaints of a procedural nature (proposed grounds 1 to 7);
(2)asserts that there were failures by the judge ‘to consider the law’ (proposed grounds 11, 12 and 13);
(3)contends that the judge failed to consider alternatives (proposed grounds 14 and 15);
(4)contends that the judge made various ‘evidentiary failings’ (proposed grounds 16 to 19); and
(5)asserts that the judge failed to take into account the wishes of beneficiaries and/or erred by ‘redirecting blame … to the innocent beneficiaries’ (proposed grounds 20 and 21).
With respect to Mr Coffey, the proposed grounds of appeal and the written case are far from clear. In any event, we have formed the view that there is no substance in any of these grounds. Each proposed ground is devoid of merit.
At the outset, it is important to highlight that, at the time of trial, the deceased’s estate had gone unadministered for almost nine years. This was an intolerable situation which could not be permitted to continue. The issue before the judge was whether, after this substantial delay, Mr Coffey, one of the named executors and a residuary beneficiary of the estate, should be granted probate. This is in circumstances where the other named executor, Mrs O’Halloran, who is another residuary beneficiary, sought the appointment of an independent executor and that Mr Coffey (and herself) be passed over. This order was sought on the basis of the total breakdown of the relationship between Mr Coffey and Mrs O’Halloran and on the basis of actual and potential conflict between the duties of Mr Coffey as executor of the estate and his personal interests and/or the interests of Mrs O’Halloran.
Far from committing any procedural or other error, the judge managed and conducted this proceeding with great efficiency, identifying the critical issues in dispute between the parties and then resolving them with as much expedition as was reasonably possible and appropriate in the circumstances. In formulating the three issues in relation to which the trial was to be conducted, the judge correctly identified the critical issues in dispute between the parties. We shall address this further below.
Further, for the reasons given by his Honour, there was no error in his Honour’s conclusions in relation to any of those issues. Indeed, once Mr Coffey had had the trial to which he was entitled, and once all of the evidence which was to be adduced had been called and tendered, it is almost impossible to contemplate that any judge could have come to any different conclusion in respect of the matter from that to which the judge came. Specifically, the judge was right, for the reasons he gave, to hold that the Court had power to pass over a named executor (in this case, Mr Coffey). The judge was right, for the reasons he gave, to conclude that Mr Coffey should be passed over as executor of the estate. And the judge was right, for the reasons he gave, to conclude that an independent person should now be appointed to administer the deceased’s estate.
While we do not intend to descend into the individual complaints made in each of the proposed grounds of appeal, it is of some note that Mr Coffey’s very first complaint in his proposed grounds is that the judge erred in failing to ensure that there were pleadings in this case (proposed grounds 1, 2 and 4). While there are a number of answers that could be given to that complaint, it is sufficient for us to observe that, at no time prior to judgment did Mr Coffey make any submission to the court below that there should be an order for pleadings.
In oral argument, Mr Coffey emphasised the absence of pleadings, asserting that there was ‘no application for the judge to rule on’. This assertion is not correct. As noted above:
(1)On 4 March 2019, Mrs O’Halloran filed an originating motion seeking, amongst other things, that Mr Coffey show cause as to why he should not bring the will into Court or alternatively that Mrs O’Halloran be entitled to prove the will;
(2)On 2 October 2020, McMillan J ordered on the papers that Mr Coffey and Mrs O’Halloran be passed over as executors of the will;
(3)On 26 February 2021, this Court set aside the October 2020 orders of McMillan J and remitted the proceeding for hearing and determination by a differently constituted court; and
(4)On 13 August 2021, Mr Coffey filed his summons seeking orders, among other things, that Mrs O’Halloran should show cause as to why she should not renounce probate of the will or be passed over as executor of the will.
Further, on 19 August 2021, there was a directions hearing before a judicial registrar, in which orders were made for submissions, including in relation to identification of the issues to be dealt with at the trial of Mrs O’Halloran’s originating motion and Mr Coffey’s summons. In her submissions filed pursuant to those orders, Mrs O’Halloran sought an order that both herself and Mr Coffey be passed over, resulting in the need for a new, independent administrator.
On 29 October 2021, after submissions were filed, there was a directions hearing in the nature of a case management conference before the judge in order to determine the issues for trial (the ‘October 2021 hearing’). At this hearing, the judge put forward issues 1 to 3 for possible determination, in light of Mrs O’Halloran’s originating motion, Mr Coffey’s summons and the matters raised in the parties’ submissions filed pursuant to the 19 August 2021 orders. The judge indicated that the issues were put forward to ‘provide a focus and framework for the hearing of the trial’ in accordance with s 49 of the Civil Procedure Act.[57] That section provides that the court may make any order to further the overarching purpose in relation to the conduct of a civil proceeding, namely to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute. Thus, the judge was considering whether it was appropriate to refine the issues in dispute at trial, consistent with this section.
[57]Transcript of Proceedings (29 October 2019), 4.19–20.
We have read the transcript of the October 2021 hearing. It is evident that the judge raised his proposed determination of issues 1 to 3 with parties and sought their comment. It is also evident that both parties consented to this course, with Mr Coffey noting on a number of occasions that ‘it’s a good idea’.[58] In light of these responses from the parties, the judge made orders for the determination of issues 1 to 3 as set out at [7] above.
[58]Ibid 6.9–30.
We consider that the judge was correct to limit the issues in the way he did in light of the originating motion, the summons and the submissions filed by the parties. In particular, we agree that the three issues identified by the judge were the three central issues to be determined between the parties in this proceeding. The need for the judge to consider a new, independent administrator arose from the position adopted by Mrs O’Halloran in the submissions filed pursuant to the 19 August 2021 orders. In our view, while it was open to Mrs O’Halloran to amend her originating motion to seek this relief, she was not obliged too: nor was it necessary to do so. This is in circumstances where, as noted above, Mr Coffey never sought an order for pleadings, did not object to the three issues identified for determination by the judge, and took part in the trial including by proposing two other administrators in the event he was not granted probate.
A number of the proposed grounds of appeal allege an error on the part of the judge in failing to appreciate the ‘extensive’ nature of the factual issues in dispute relating to the delay in seeking probate and of Mr Coffey’s alleged conflicts of interest relied upon by Mrs O’Halloran. As a result, Mr Coffey contended that not all of the issues which he considered were necessary to be determined had been determined (proposed grounds 1–8, 16–21). However, these proposed grounds overlook the nature of the hearing conducted by the judge, the issues identified for determination, and the findings in fact made.
As to the nature of the hearing and the issues identified for determination, as set out above, the judge identified correctly the three critical issues in dispute between the parties, a course which was agreed to by Mr Coffey. We refer to our comments in [43] and [46]–[50] above.
As to the delay in seeking probate, as set out above in relation to issue 2, the judge focused on the period of the delay, concluding that the inability of the two named executors to agree on the assets and liabilities of the estate ‘underlines the need for an inventory to be prepared by an independent person who is capable of impartially assessing the value of the deceased estate’.[59] That conclusion was undoubtedly correct.
[59]Reasons, [109].
In doing so, the judge rejected some of Mr Coffey’s allegations against Mrs O’Halloran based upon the objective facts and documents. The judge also rejected Mr Coffey’s contention that responsibility for the failure to administer the estate rested overwhelmingly with Mrs O’Halloran, concluding that Mr Coffey also bore a high degree of culpability for this situation.[60] To the extent that it is relevant to his Honour’s decision to pass over Mr Coffey, we consider that there is no basis to challenge this conclusion.
[60]Ibid [119].

The judge then made a finding as to actual conflict, referring to Mr Coffey’s claim that the O’Halloran Partnership owes debts of $2.175 million and $646,844 to the deceased’s estate. The judge considered this would have a significant effect on Mr Coffey’s entitlement as a residuary beneficiary.[61] We consider that there is also no basis to challenge this conclusion.
[61]Ibid [116].
As to the alleged conflicts, as set out above, the judge concluded that it was unnecessary to determine the underlying allegations made by Mrs O’Halloran. However, the judge concluded that the various claims required careful investigation. Further, the judge concluded that, given Mr Coffey’s various personal interests and the animus with which he regards Mrs O’Halloran, he was ‘strikingly ill-suited to that task’ of investigating those claims.[62] Once again, there is simply no basis to challenge this conclusion.
[62]Ibid [117].
Mr Coffey also asserted that the judge failed to take into account his undertaking ‘not to self-enrich himself from disputes’ (proposed ground 17(c)). In our view, this undertaking is of little or no relevance to whether Mr Coffey should be passed over as executor in light of the nature of the actual and potential conflicts faced by Mr Coffey and the breakdown of his relationship with Mrs O’Halloran, which has deteriorated to a point where there was no realistic expectation that they would be able to work together. We agree with the judge that it was these matters which meant Mr Coffey was ‘strikingly ill-suited’ to the task of administering this estate. So too, we consider it was of little or no relevance to this issue that cl 10 of the will provided that the deceased was content for any child named as executor not to be excluded from making a decision due to a personal interest and that any such executor was to be relieved from the prohibition against purchasing assets from the estate.
A number of the proposed grounds of appeal suggest an error in the judge’s analysis of the power of the Court to pass over an executor or executors named in the will (proposed grounds 11–13 and 14–15). However, in light of the detailed analysis and conclusions of the judge on the law addressed in issue 1 and 2 of the Reasons, we can see no error. To the contrary, we agree with the judge that the power of the Court to pass over a named executor arises from the Court’s duty to ensure due and proper administration of the deceased’s estate having regard to the interests of all persons beneficially entitled to it.
Further, it appears that s 28 of the Act (the subject of proposed ground 11) was not raised before the judge and, in any event, was of no relevance to the issues for determination by him. Neither was it relevant to the issues for determination that, by forgoing her right to prove the will and agreeing to be passed over as executor, there was some kind of ‘admission of guilt’ by Mrs O’Halloran (as suggested by proposed ground 15). It simply meant that, consistent with the issues for determination identified by the judge, it was unnecessary to consider Mrs O’Halloran’s application for a grant of probate.
As to proposed grounds 20 and 21, it is far from clear what the basis of these grounds is in light of the findings of the judge at [120] of the Reasons. To the extent that is suggested that the judge ought to take into account the attitude of the beneficiaries, in our view, the fact that at least some beneficiaries preferred Mr Coffey be appointed was of little or no relevance to the judge in light of his findings of actual and potential conflicts of interest and the breakdown of the relationship between Mr Coffey and Mrs O’Halloran.
As a result, each of Mr Coffey’s proposed grounds of appeal fails for the reasons given by his Honour. Any order that would not have involved the passing over of Mr Coffey for an independent person would have been wrong. On the evidence given at trial, one could not conclude otherwise than that permitting Mr Coffey to remain as executor (or passing over him and appointing as administrator someone not independent of all of the beneficiaries) would almost certainly do nothing but prolong the disputation that has now gone on for years, and the administration of this estate, indefinitely. No judge acting reasonably could permit such a course to be taken.
Contrary to Mr Coffey’s submissions, the judge considered all of the matters he was required to consider, including possible alternatives to the orders he ultimately made. There were no failures by the judge to properly consider any of the evidence tendered before him, nor any other failures which would permit (much less justify) this Court to interfere with the orders made by his Honour.
There are two matters to note in conclusion. First, in oral argument Mr Coffey submitted that he put forward to the judge an independent person as the proposed administrator. It was not clear that this related to any proposed ground of appeal. Nevertheless, it is not apparent to us that he put forward an independent person as the proposed administrator. We refer to the comments of the judge set out at [39] above. Counsel for the respondent disputed that Mr Coffey put forward an independent administrator to the judge. In reply Mr Coffey did not direct us to any evidence in support of this submission. In these circumstances, we decline to accept this submission.
Second, the respondent sought leave to rely upon an affidavit of Mrs O’Halloran sworn 6 March 2024 and of Mark Maier sworn 19 March 2024. In light of the views we have formed as to this application, it is not necessary or desirable to grant leave. We decline to do so.

Conclusion

Mr Coffey’s proposed appeal has no prospects of success. The judge was plainly correct in the orders he made. It follows that leave to appeal must be refused.
---

[2024] VSCA 52

28 March 2024