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Dowling v Irvine

Dowling v Irvine

Case [2025] NSWSC 961 25 August 2025

Executors and Administrators

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dowling v Irvine [2025] NSWSC 961
Hearing dates: 4 April 2025
Date of orders: 31 July 2025
Decision date: 25 August 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
Set aside Orders 2 and 3 of the Registrar’s orders dated 27 June 2024, pursuant to UCPR r 49.19, increasing the appointed executor’s commission from $42,000 to $90,000, and increasing the award of the appointed executor’s legal costs for the claim for commission before the Registrar from $30,475 to $65,000. Order that the respondent pay the applicant’s legal costs of the review application. If those costs are not agreed within 14 days, they will be the subject of a specified gross sum costs order.

Catchwords:
SUCCESSION – Executors and administrators – Commission - Matters affecting quantum –administration of an estate takes over 30 years to finalise – one of the beneficiaries has been litigious throughout the administration – consideration of causes of the delay – consideration of an executor’s “pains and trouble” in awarding commission in the face of – whether executor has financially benefited from estate administration – consideration of extent of executor’s personal performance of executor’s duties.
CIVIL PROCEDURE – Registrars – Review of Registrar’s decision – Powers of Judges to review discretionary award of commission – reasons for intervention.
COSTS – specified gross sum costs order – Civil Procedure Act 2005, s 98(4)(c) – long-running estate administration due to family conflict – limited funds remaining in estate – need to end conflict – undesirability of further contest about the assessment of legal fees.

Legislation Cited:
Charter Establishing Courts of Judicature in New South Wales, 13 October 1823 (the Third Charter of Justice)
Civil Procedure Act 2005
Probate and Administration Act 1898
Uniform Civil Procedure Rules 2005

Cases Cited:
Dowling v Irvine [2005] NSWSC 531
Estate of Edward Simshauser, deceased (NSW Supreme Court 24 November 1978, unrep)
Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206
Hawkins v Barkley-Brown [2010] NSWSC 48
Irvine v Dowling (Supreme Court (NSW), Cohen J, 14 October 1994, unrep)
Irvine v Irvine [2008] NSWSC 592
Irvine v Dowling [2021] NSWSC 119
In the Will of Sheppard [1972] 2 NSWLR 714
Phillips Re Estate of Joel [2007] NSWSC 639
Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247
Re Estate of Joel [2007] NSWSC 639
Re Phillips [2007] NSWSC 639
Re Watters [2006] NSWSC 1277
Spence v Spence [2003] NSWSC 1232
The Estate of Maureen Laila Huber, of Cobram VIC; The Estate of Dolf Paul Huber [2020] NSWSC 1539
Tobin v Ezekiel: Estate of Lily Ezekiel [2009] NSWSC 1313
Tomko v Palasty (No 2) (2007) 71 NSWLR 6

Category: Principal judgment
Parties: Plaintiff: Elizabeth Ruth Dowling
Defendant: Micheal James Irvine (as Executor of the Estate of the late Maxwell Charles James Irvine)
Representation:
Counsel:
Plaintiff: E Cohen
Defendant: B Goodyear
Solicitors:
Plaintiff: Martin Street Lawyers
Defendant: McIntosh McPhillamy & Co

File Number(s): 1992/50775
Publication restriction: N/A

JUDGMENT

Administration of the estate of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dowling v Irvine

Details

AGLC: Dowling v Irvine [2025] NSWSC 961
Case: [2025] NSWSC 961
Decision Date: 25 August 2025

CaseChat Overview and Summary

The case of Dowling v Irvine involved a dispute over the administration of an estate, which took over 30 years to finalise. The litigation was primarily driven by one beneficiary who was consistently litigious throughout the estate's administration. The court was tasked with determining the quantum of the executor's commission and whether any adjustments were necessary due to the circumstances surrounding the lengthy and contentious administration process. This included assessing the executor's efforts, any personal financial gain, and the overall performance of the executor's duties.

The primary legal issues before the court were whether the executor was entitled to a commission in light of the significant delays and the litigious nature of one beneficiary, and whether the executor had personally benefited from the estate administration. The court also considered whether the executor had personally performed their duties or delegated them, which would impact the assessment of the commission. The court had to balance the executor's efforts and the circumstances of the estate's administration against the lengthy delays and the limited funds remaining in the estate.

In reviewing the matter, the court acknowledged the extensive delays and the litigious conduct of one beneficiary, which contributed to the protracted administration. The court assessed the executor's personal involvement and the difficulties encountered in administering the estate. The court concluded that despite the challenges, the executor had performed their duties with due care and attention. The court also noted that the executor had not personally benefited from the administration of the estate. As a result, the court determined that the executor was entitled to a commission but made adjustments to account for the delays and the limited funds remaining in the estate.

The court also addressed the issue of costs, making a specified gross sum costs order under the Civil Procedure Act 2005, s 98(4)(c). The court considered the long-running estate administration due to family conflict and the need to end the conflict, as well as the undesirability of further contest about the assessment of legal fees. The court's decision aimed to finalise the matter and prevent further litigation over the costs.

Orders