Gooley v Colley

Case •

[2025] NSWSC 875

•

07 August 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Gooley v Colley [2025] NSWSC 875
Hearing dates: 11 March 2025
Date of orders: 7 August 2025
Decision date: 07 August 2025
Jurisdiction:Equity - Commercial List
Before: Williams J
Decision:

See orders at [88].

Catchwords:

DECLARATORY RELIEF – Application by plaintiffs that fees charged in invoices issued by defendants are not due and payable by plaintiffs – Onus of proof – Whether plaintiffs established factual and legal basis for negative declarations sought

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), rr 33.11, 42.33

Cases Cited:

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20

Gooley v Gooley [2020] NSWSC 798

Gooley v Gooley [2021] NSWSC 56

Hume v Munro (No. 2) (1943) 67 CLR 461

Maestrale v Aspite [2014] NSWCA 182

Naaman v Jaken Properties Australia Pty Ltd (2025) 421 ALR 227; [2025] HCA 1

Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365

Stapley v Towing Masters Pty Ltd (t/as Dynamic Towing) [2009] NSWCA 382

Texts Cited:

N/A

Category:Principal judgment
Parties: Brett Raymond Gooley (First Plaintiff)
Service Gooley (GFT) Pty Ltd (ACN 662 957 888) (Second Plaintiff)
Motasea Pty Ltd (ACN 003 668 424) (Third Plaintiff)
John Christopher Colley (First Defendant)
Timber Industries (SI) Pty Ltd (Second Defendant)
Representation:

Counsel:
Mr J Knackstredt (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)

Solicitors:
Macpherson & Kelley Lawyers (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)
File Number(s): 2024/326226
Publication restriction: N/A

Judgment

Introduction

  1. The first plaintiff, Dr Brett Gooley, is the son and the executor of the estate of the late Mr Melville Gooley, who died on 23 December 2017.

  2. The second plaintiff, Service Gooley (GFT) Pty Ltd, (Service GFT) has been the trustee of the Gooley Family Trust since about 14 February 2023. The previous trustee – Cuthbert Rose Pty Ltd (Cuthbert Rose) – is not a party to these proceedings. Dr Gooley is a director of Service GFT.

  3. The third plaintiff, Motasea Pty Limited (Motasea), is one of many companies in which the deceased owned shares at the time of his death. Dr Gooley is now the sole director of Motasea.

  4. Following the death of the deceased, his daughters, Ms Aleta Gooley and Ms Melinda Foley, commenced proceedings in this Court on 9 July 2018 applying for a grant of probate of a will made by the deceased on 18 July 2014 which named them as the executors of his estate. Dr Gooley, who had lodged a caveat against a grant of probate without prior notice to him on 17 January 2018, was named as the defendant to those proceedings. Dr Gooley contended that the deceased lacked testamentary capacity by July 2014. He filed a cross-claim in those proceedings seeking a grant of probate in respect of a will made by the deceased on 1 February 2010 or, alternatively, a will made by the deceased on 15 June 2012. Both of those earlier wills named Dr Gooley as the sole executor of the deceased’s estate. [1]

    1. Proceeding no. 2018/63881.

  5. At the same time as the probate proceedings were on foot, two separate proceedings were commenced in this Court by relatives of the deceased making family provision claims.

  6. Teece Hodgson & Ward acted as the solicitors for Ms Gooley and Ms Foley as the plaintiffs and cross-defendants in the probate proceedings until they were replaced by Martin Street Lawyers at some time in 2020. Macpherson Kelley acted as the solicitors for the defendant and cross-claimant, Dr Gooley.

  7. The probate proceedings were heard by Sackar J over multiple hearing dates between November 2019 and November 2020. Judgment was delivered on 12 February 2021. His Honour found that the deceased lacked testamentary capacity at all relevant times after he made his will on 1 February 2010, dismissing the claims of Ms Aleta Gooley and Ms Melinda Foley, and upholding Dr Gooley’s cross-claim. [2] On 10 March 2021, Sackar J made orders granting probate in solemn form to Dr Gooley in respect of the will dated 1 February 2010.

    2. Gooley v Gooley [2021] NSWSC 56.

  8. The first defendant in these proceedings, Mr John Colley, was the accountant for the deceased and his associated entities from about 1971.

  9. Ms Gooley and Ms Foley adduced evidence from Mr Colley in the probate proceedings. Mr Colley swore an affidavit on 25 October 2018, and a further affidavit on 19 July 2019 responding to an affidavit of Dr Gooley sworn on 20 March 2019. Both of Mr Colley’s affidavits were served and read by Ms Gooley and Ms Foley in the probate proceedings, and Mr Colley was cross-examined by counsel appearing for Dr Gooley at the trial of those proceedings. [3]

    3. Ibid at [994]-[1014].

  10. After the Court made orders granting probate to Dr Gooley, he caused Macpherson Kelley to request Mr Colley to provide various books and records of the entities and trusts forming part of the deceased’s estate to Dr Gooley’s accountant, Mr Garry Lillyman. Dr Gooley intended that Mr Lillyman would take over the accounting for all of those entities and trusts. Those requests were made of Mr Colley during the period from about April to June 2021.

  11. From July 2021, Dr Gooley requested Mr Colley to do what Dr Gooley describes as “limited accounting work” on behalf of the deceased’s estate.

  12. On 30 September 2022, approximately 18 months after probate was granted to Dr Gooley in respect of the deceased’s will dated 1 February 2010, Mr Colley sent an email to Dr Gooley’s advisers, copied to Dr Gooley, Ms Foley and Ms Gooley, which stated:

“I am advised that there is agreement between the parties that spawned from mediation in June this year, but I am not aware of such being formally signed off. That agreement expects me to pass over MYOB Files and cooperate in any handovers and assist into the future if needed. I assure everyone that I will do that. What I need now is an assurance that I will be paid my fees for all that I have done up to now and up to and including the handovers.”

  1. Mr Tom Reid of Macpherson Kelley replied to Mr Colley’s email later that same day, writing:

“We note that you are willing to hand over MYOB files, and cooperate with any handovers and Mr Lillyman’s review of tax returns. On that basis, our client confirms that he will pay your reasonable fees (or approve payment by the relevant entity, as the case may be).”

  1. There is no dispute that Mr Colley carried out work responsive to Dr Gooley’s requests and handed over files and information. During the period between about April 2023 and September 2023, Dr Gooley arranged for the payment of fees totalling approximately $139,277 that Mr Colley and/or TIPL had rendered in invoices issued between October 2021 and March 2023.

  2. The present proceedings, which were commenced on 3 September 2024, arise out of a dispute about the following invoices (together, the disputed invoices):

  1. two invoices issued on 9 August 2023 addressed to “Gooley Family Trust” for the preparation of its financial statements and income tax returns for the 2021 and 2022 financial years;

  2. an invoice issued to Dr Gooley “As Executor – Estate M W Gooley” on 10 October 2023 for work done after March 2023;

  3. ten further invoices issued to Dr Gooley “As Executor – Estate M W Gooley” on 9 May 2024 for work done during the period from January 2018 to September 2022; and

  4. an invoice issued to Motasea on 13 June 2024 for Mr Colley’s costs of producing documents in response to a subpoena issued by Motasea on 4 June 2024 in proceeding no. 2022/107867 in this Court (the Motasea proceedings).

  1. Each of those invoices was issued in the name of “John C Colley & Co”, which is described on the invoices as being a name used by the Colley Family Trust. The second defendant, Timber Industries (SI) Pty Ltd, (TIPL), is the trustee of the Colley Family Trust. Mr Colley is the sole director of TIPL.

  2. The plaintiffs claim declarations that the disputed invoices issued to them are not due and payable.

  3. At the conclusion of the hearing on 11 March 2025, the plaintiffs abandoned their claim for a further declaration, untethered to any disputed invoice, that “no sum is owing by the plaintiffs, or any of them, to the defendants, or any of them”.

  4. The defendants oppose the declarations sought by the plaintiffs and maintain that the invoices are due and payable. Although the defendants’ written submissions foreshadowed that they intend to bring their own claims pressing for payment of the disputed invoices, no cross-claim has been filed in these proceedings. At the commencement of the hearing on 11 March 2025, I drew this to the attention of Mr Colley, who appeared for himself and was granted leave to appear for TIPL. I explained to Mr Colley, that any decision to decline to make the declarations sought by the plaintiffs would not operate as an order requiring the plaintiffs to pay the disputed invoices to the defendants. I also explained to Mr Colley in broad terms the effect of the doctrine of issue estoppel and the related principles of Anshun estoppel and their potential implications for any fresh proceeding that the defendants might commence after the determination of the present proceedings. Mr Colley was given an opportunity to consider whether the defendants wished to apply for an adjournment of the hearing to afford them time to make any claim for payment of the disputed invoices as a cross-claim in these proceedings. Mr Colley elected not to apply for an adjournment, and the hearing of the plaintiffs’ claims for declaratory relief therefore proceeded.

Applicable principles

  1. As the parties claiming negative declarations, the plaintiffs bear the onus of proving that each disputed invoice is not due and payable. In substance, the plaintiffs are denying any foundation for the defendants’ claim to payment of the charges set out in each disputed invoice. The plaintiffs must therefore prove that negative by showing that the claim in each invoice cannot be supported on any legal basis, whether in contract or restitution. It is not for the defendants to justify the basis of their claim that the fees itemised in each invoice are payable. [4]

The disputed invoices issued to the Gooley Family Trust on 9 August 2023

4. Hume v Munro (No. 2) (1943) 67 CLR 461 at 474 (Latham CJ); Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 at [171]-[178] and the authorities there referred to (Campbell J, as his Honour then was); Stapley v Towing Masters Pty Ltd (t/as Dynamic Towing) [2009] NSWCA 382 at [107] (Campbell JA, Allsop P and Handley AJA agreeing).

  1. On 9 August 2023, Mr Colley issued:

  1. invoice 2308GT01 addressed to the Gooley Family Trust for the sum of $9,900 (including GST), for work described as preparing financial statements and income tax return for the year ended 30 June 2021, attending to “secretarial matters” as required and “various advice and attendances”; and

  2. invoice 2308GT02 addressed to the Gooley Family Trust for the sum of $9,900 (including GST), for work described as preparing financial statements and income tax return for the year ended 30 June 2022, attending to “secretarial matters” as required and “various advice and attendances”.

  1. As Mr Colley acknowledged in cross-examination, Cuthbert Rose was the trustee of the Gooley Family Trust during the financial years ended 30 June 2021 and 30 June 2022.

  2. The financial statements that Mr Colley prepared for the Gooley Family Trust for the financial year ended 30 June 2021 names Cuthbert Rose as the trustee, but the income tax return that he prepared for that year in or about December 2022 erroneously names Gould Enterprises Pty Ltd as the trustee to whom notices should be sent.

  3. The financial statements that Mr Colley prepared for the Gooley Family Trust for the financial year ended 30 June 2022 names Cuthbert Rose as the trustee, but the income tax return that he prepared for that year in or about August 2023 erroneously names Service GFT as the trustee to whom notices should be sent. It will be recalled that Service GFT did not become the trustee of the Gooley Family Trust until early 2023. In cross-examination, Mr Colley gave evidence that he named Service GFT in the income tax return because he must have been informed at about the time that he was finalising the tax return that Service GFT had replaced Cuthbert Rose as the trustee.

  4. It was put to Mr Colley that it was wrong to name Service GFT in the income tax return for the 2022 financial year when it had not been the trustee of the trust during that financial year. Mr Colley answered:

“Yes, but the Tax Department in my view would not be interested in a prior trustee. They're thinking, as I've said to you, the Tax Department, they render bills to the Gooley Family Trust and record it as such. They do not record a trust as, you know, such and such a trustee, because you can understand why they wouldn't because if there's changes of trustee it goes out the window. In fact, when there's an ABN number or a registration for GST, et cetera, you'd notice that the tax office issuer is in the name of Gooley Family Trust.”

  1. Mr Colley’s evidence does not accord with the legislative instruments issued by the Commissioner of Taxation for the income years ended 30 June 2021 and 30 June 2022, each of which requires an income tax return to be lodged by any trustee of a trust estate that derived income during that income year. [5] Service GFT was not the trustee which derived income to be held and applied for the beneficiaries of the Gooley Family Trust during those income years. Dr Gooley gave evidence that he has declined to cause Service GFT to lodge tax returns for the Gooley Family Trust for the 2021 and 2022 financial years, in respect of which the Australian Taxation Office has issued a final notice. Dr Gooley considers that this obligation falls on Cuthbert Rose as the trustee of the Gooley Family Trust during those financial years.

    5. Legislative Instrument 2021/1; Legislative Instrument 2022/8; see also Law Administration Practice Statement PS LA 2012/2.

  2. Service GFT does not dispute that Mr Colley did the work described in invoices 2308GT01 and 2308GT02. There is no evidence that the work was not competently done, or that the fees charged for the work are not reasonable. Service GFT relied on the fact that the income tax returns are marked “Not complete”. Mr Colley gave evidence, which I accept, that it was his practice to mark income tax returns that he prepared in his accounting practice as “Not complete” until the client had authorised the lodgement of the return.

  3. Service GFT contends that it is not liable for the amounts charged in 2308GT01 and 2308GT02 addressed to the Gooley Family Trust because it did not request Mr Colley to undertake the work for which the invoices have been issued, it was not the trustee during the 2021 and 2022 financial years in respect of which the work was performed, the Gooley Family Trust has not benefitted from the work in any event because the tax returns are incomplete and have not been lodged, and lodgement of the returns is the responsibility of Cuthbert Rose which was the trustee throughout the 2021 and 2022 financial years.

  4. In cross-examination, Mr Colley agreed that he was not requested by Service GFT or Dr Gooley to prepare the financial statements or income tax returns for the Gooley Family Trust for the 2021 and 2022 financial years. Mr Colley also gave evidence that the work done to prepare the financial statements and income tax returns for each of those financial years was substantially completed during the course of the financial year, and that the advice and attendances referred to in invoices 2308GT01 and 2308GT02 were advice given to and attendances on Ms Foley who was in control of the trustee of the Gooley Family Trust during those financial years. In light of that evidence, Mr Colley’s submission that he carried out the work described in each of the disputed invoices at the request of Dr Gooley, or Dr Gooley’s lawyers, cannot be accepted in relation to invoices 2308GT01 and 2308GT02. As Mr Colley accepted in cross-examination, Dr Gooley has never acknowledged or agreed on behalf of Service GFT that it would accept liability for Mr Colley’s fees for work relating to the preparation of the financial statements and income tax returns for the Gooley Family Trust in respect of the 2021 and 2022 financial years.

  5. The evidence to which I have referred at [27]-[29] above establishes that the work described in invoices 2308GT01 and 2308GT02 was not undertaken pursuant to any agreement with, or at the request of, Service GFT, and that the defendants and Service GFT did not subsequently enter into any agreement or arrangement for the fees in respect of that work to be paid by Service GFT. However, that evidence is not sufficient to discharge the plaintiffs’ onus of proving that the fees in invoices 2308GT01 and 2308GT02 are not due and payable by Service GFT.

  6. The plaintiffs’ contention that the Gooley Family Trust has not benefitted from the work was not supported by evidence. Although the income tax returns have not been lodged, there is no evidence that Mr Colley’s work has not achieved everything that needs to be done for that purpose save for the final step of lodgement upon receiving authorisation from Cuthbert Rose or Service GFT. Dr Gooley may be entitled to refuse to authorise lodgement by Service GFT on the basis that this is strictly the responsibility of Cuthbert Rose. It does not follow that Mr Colley’s work was of no benefit to the Gooley Family Trust, or that his fees are not liabilities properly incurred by Cuthbert Rose in discharging its duties as trustee. Clause 4.4 of the Deed of Variation and Appointment and Removal of Trustee dated 14 February 2023, by which Cuthbert Rose was removed and Service GFT was appointed as the trustee of the Gooley Family Trust, provides that the removal of Cuthbert Rose does not affect any right of indemnity which it has either at general law or under the trust deed in connection with any claim arising from its office as trustee. The plaintiffs’ submissions did not identify any evidence demonstrating that Cuthbert Rose would not be entitled to be indemnified out of the assets of the Gooley Family Trust by exercising its power of exoneration in respect of Mr Colley’s fees in invoices 2308GT01 and 2308GT02 for which it incurred personal liability in its capacity as trustee of the Gooley Family Trust. [6] Nor did the plaintiffs’ submissions articulate any reason why Mr Colley may not be subrogated to any such right of indemnity. [7]

    6. The plaintiffs withdrew their application to tender a heavily redacted version of a settlement deed which they described as containing a release by the former trustees of the Gooley Family Trust in respect of their right of indemnity out of trust assets, after I raised concerns that Mr Colley had never been provided with an unredacted version of that settlement deed and was therefore not in a position to know whether or how the redacted parts of the document sought to be tendered may affect the proper construction of the unredacted parts on which the plaintiffs wished to rely: Transcript P11 L10–P19 L16 and P25 L43–P26 L8.

    7. Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 at [29]-[44] (Kiefel CJ, Keane and Edelman JJ), [80]-[84] and [106] (Bell, Gageler and Nettle JJ, Gordon J agreeing), [128]-[141] (Gordon J); Naaman v Jaken Properties Australia Pty Ltd (2025) 421 ALR 227; [2025] HCA 1 at [13]-[30] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).

  7. For those reasons, the plaintiffs’ claim for a declaration that invoices 2308GT01 and 2308GT02 issued by Mr Colley and/or TIPL on 9 August 2023 are not due and payable by Service GFT will be dismissed.

The disputed invoice issued to Dr Gooley on 10 October 2023

  1. On 10 October 2023, Mr Colley issued invoice 2310BG01 addressed to Dr Gooley for the sum of $8,514 (including GST), for work described in the invoice as responding to email correspondence from Dr Gooley and his accountant Mr Lillyman, collecting documents at the request of Dr Gooley, telephone discussions with Mr Lillyman concerning various entities within the deceased’s estate and their “tax lodgement status”, and researching, collating and sending to Mr Lillyman by email “documents re trusts … as requested in email dated 6 october 2023”.

  2. The submissions made on behalf of the plaintiffs did not address their application for a declaration that the fees charged in that specific invoice are not due and payable by Dr Gooley.

  3. In his affidavit sworn on 2 September 2024, Dr Gooley deposed that he made a payment to Mr Colley on 26 September 2023 which “concluded what I had understood to be the payments required for all of Mr Colley’s outstanding invoices” with the exception of disputed invoices 2308GT01 and 2308GT02 that Mr Colley issued to Gooley Family Trust on 9 August 2023 and which I have addressed above. Dr Gooley deposed that, “[s]o far as I am concerned”, none of the invoices issued by Mr Colley after the 26 September 2023 payment related to work that he requested or fees that are payable by him, and that “I did not enter into a contract in relation to any of this alleged work”.

  4. That evidence must be assessed in the context of the following matters disclosed by the documentary evidence of the contemporaneous communications between Mr Colley and Dr Gooley and his advisers.

  5. As I have already mentioned, Mr Colley sent an email to Dr Gooley’s advisers on 30 September 2022, copied to Dr Gooley, Ms Foley and Ms Gooley, which stated (emphasis added):

“I am advised that there is agreement between the parties that spawned from mediation in June this year, but I am not aware of such being formally signed off. That agreement expects me to pass over MYOB Files and cooperate in any handovers and assist into the future if needed. I assure everyone that I will do that. What I need now is an assurance that I will be paid my fees for all that I have done up to now and up to and including the handovers.”

  1. Mr Reid of Macpherson Kelley replied (emphasis added):

“We note that you are willing to hand over MYOB files, and cooperate with any handovers and Mr Lillyman’s review of tax returns. On that basis, our client confirms that he will pay your reasonable fees (or approve payment by the relevant entity, as the case may be).”

  1. On 21 February 2023, Mr Colley wrote to Dr Gooley requesting that he attend to various fee invoices that Mr Colley had rendered to entities forming part of the deceased’s estate. By that time, Dr Gooley had been appointed as a director of those entities. Mr Colley stated that he had not pressed for payment of those outstanding invoices earlier “due to the turmoil over the last year or more”. Mr Colley’s email attached: (1) a statement addressed to Barton Press Pty Ltd in respect of seven invoices issued during the period from 29 October 2021 to 27 January 2023 for a total sum of $13,970; (2) a statement addressed to Breda Pty Ltd in respect of eight invoices issued during the period between 29 October 2021 and 27 January 2023 for a total sum of $26,070; (3) a statement addressed to Castletag Pty Ltd in respect of eight invoices issued during the period from 27 August 2021 to 27 January 2023 for a total sum of $14,470; (4) a statement addressed to Decahill Pty Ltd in respect of seven invoices issued during the period from 27 August 2021 to 27 January 2023 for a total sum of $19,360; and (5) a statement issued to The Tonkin Trust in respect of seven invoices issued during the period from 27 August 2021 to 27 January 2023 for a total sum of $34,155.

  2. Mr Reid of Macpherson Kelley replied to Mr Colley’s email later that same day, advising that Dr Gooley was still in the process of obtaining control of the relevant entities’ bank accounts, following which he would be in a position to facilitate payments by those entities. Mr Reid’s email then set out some comments and queries in relation to the statements that had been attached to Mr Colley’s email, to which Mr Colley replied by email later that day. Mr Reid then sent a further email to Mr Colley on the evening of 21 February 2023 advising that Dr Gooley would pay the invoices once he was able to operate each entity’s bank account, subject to Mr Colley lodging outstanding tax returns and BAS up to 28 February upon receiving Dr Gooley’s instructions to do so, and Mr Colley providing to Mr Lillyman MYOB files and general ledgers in respect of certain entities for the period from 1 July 2010. Mr Colley replied that evening, confirming his willingness to provide those records to Mr Lillyman, and to cooperate with and assist Mr Lillyman, and stating that he would “include the passing of these records in my final accounts for the Secretarial/ASIC document lodgement work that I did for you recently”.

  3. On 27 March 2023, Mr Colley sent an email to Dr Gooley, copied to Mr Reid, attaching revised debtor statements for the five entities referred to at [39], each of which listed additional invoices issued on 24 March 2023 for work described as “ASIC Secretarial” and “handover instructions & tasks”. Mr Colley’s email also attached debtor statements for the deceased’s estate and certain additional entities in respect of invoices issued on 24 March 2023 for “handover instructions & tasks” and, in some instances, “ASIC Secretarial” work.

  4. Dr Gooley paid many of those invoices during April 2023. Some remained outstanding.

  5. On 4 May 2023, Mr Colley wrote to Dr Gooley advising that Mr Lillyman had requested further information, and reiterated that he would cooperate with and assist Mr Lillyman. Mr Colley thanked Dr Gooley for the recent payments he had made, and asked him to attend to payment of the remaining outstanding invoices.

  6. On 9 May 2023, Mr Colley wrote to Dr Gooley thanking him again for his recent payments and reiterating his request for payment of the outstanding invoices. Mr Colley also noted that the assistance that Mr Lillyman required of him may involve “more than just passing over the usual basics and responding to any queries, history or background”. Mr Colley sought Dr Gooley’s assurance that he would accept responsibility for his fees for any assistance which demanded “more time than would normally be expected”.

  7. On 25 July 2023, Mr Colley wrote to Dr Gooley attaching debtor statements for his outstanding fees, being: (1) a statement issued to Breda Pty Limited in respect of invoices issued on 24 March 2023 for a total sum of $1,155; (2) a statement issued to Castletag Pty Ltd in respect of invoices issued between 27 August 2021 and 24 March 2023 for a total sum of $15,895.00; (3) a statement issued to Dr Gooley for the balance of $7,150 owing in respect of an invoice issued on 20 October 2021; and (4) a statement issued to Neufreund Money Management Pty Ltd in respect of invoices issued on 24 March 2023 for a total sum of $907.50. Each statement was marked: ‘Final Notice: Pay by 1st August 2023”.

  8. On 8 August 2023, Mr Lillyman wrote to Mr Colley advising that Dr Gooley had requested him to take over the Gooley Family Trust and seeking a copy of the last set of financial statements and tax returns, and any relevant MYOB files. Mr Colley replied that he was happy to help, but that he required payment first in respect of his outstanding invoices.

  9. On 9 August 2023, Dr Gooley wrote to Mr Colley disputing the invoice of $7,150 that Mr Colley had issued to him personally on the basis that they had reached an agreement to reduce this to $4,400 which Dr Gooley had paid. Dr Gooley’s email also stated that Mr Colley had not yet provided all of the information that Mr Lillyman required, and stated that Mr Colley’s remaining invoices (other than the invoice issued to Dr Gooley personally) would be paid when Mr Colley supplied the outstanding information.

  10. Mr Colley replied to Dr Gooley on 10 August 2023 denying that he had failed to supply the information requested by Mr Lillyman, insisting that his request to be paid his outstanding fees without further delay was not unreasonable, and reiterating that he would expect to be paid for his ongoing assistance to Mr Lillyman if it required more work than he anticipated.

  11. Dr Gooley replied on 14 August 2023 setting out a proposed table of actions and payments stipulating further work to be done by Mr Colley in return for which Dr Gooley would pay: (1) an amount of $1,155 that Mr Colley had invoiced to Breda Pty Ltd in March 2023, which had been included in the statements that Mr Colley sent to Dr Gooley on 27 March and 25 July 2023 as referred to at [41] and [45] above; (2) an amount of $907.50 that Mr Colley had invoiced to Neufreund Pty Ltd in March 2023, which had been included in the statements that Mr Colley sent to Dr Gooley on 25 July 2023 as referred to at [45] above; and (3) an amount of $15,895 that Mr Colley had invoiced to Castletag Pty Ltd during the period between August 2021 and March 2023, which had been included in the statements that Mr Colley had sent to Dr Gooley in on 21 February 2023 (excluding the March 2023 invoices), on 27 March 2023, and on 25 July 2023, as referred to at [39], [41] and [45] above.

  12. Mr Colley replied on 14 August 2023 proposing certain “corrections and additions” to Dr Gooley’s plan. Dr Gooley did not accept those corrections and additions in the further correspondence that ensued in the following days. On 17 August 2023, Dr Gooley wrote to Mr Colley reiterating the plan of actions and payments that he proposed on 14 August 2023.

  13. Mr Colley replied on 17 August 2023, declining to complete the further work requested in return only for payment of his existing outstanding invoices. Mr Colley stated: “Collating and passing over the various documents is a ‘Task’. Which I will do for you, and charge you for.” Mr Colley suggested that many of the documents that Dr Gooley had requested in his 14 August 2023 proposal were already in the possession of Mr Lillyman and Macpherson Kelley, so the scope of the work outlined in Dr Gooley’s plan could be narrowed and Mr Colley’s further fees reduced accordingly.

  14. On 21 August 2023, Mr Colley wrote to Dr Gooley advising that he had expected to start collating the documents Dr Gooley had requested, and asking Dr Gooley to let him know if he was able to reduce or simplify the task.

  15. There is no evidence that Dr Gooley embraced Mr Colley’s suggestion to narrow the scope of further work.

  16. On 25 August 2023, Dr Gooley wrote to Mr Colley repeating his 14 August 2023 plan to pay the three outstanding invoices referred to at [49] above (and no more) if Mr Colley completed the tasks that had been set out in Dr Gooley’s 14 August 2023 plan.

  17. Dr Gooley’s 25 August 2023 email complained that Mr Colley’s invoices had “increased since our agreement of 11/4/2023”. In his affidavit sworn on 2 September 2024, Dr Gooley explained that he was referring to an agreement he believed had been reached through the emails exchanged on 21 February 2023 to which I have referred to at [39]-[40] above. Dr Gooley’s evidence is that, based on that correspondence, he understood that he had agreed to pay the amounts in the statements issued by Mr Colley as at 21 February 2023 in exchange for Mr Colley providing information to Mr Lillyman. The correspondence does not evidence any agreement on the terms that Dr Gooley alleges. Mr Colley clearly stated in that correspondence that he would charge further fees for providing the records requested. There is no evidence of any agreement or arrangement between Dr Gooley and Mr Colley that superseded Dr Gooley’s agreement in September 2022 to pay (or cause each relevant entity to pay) Mr Colley’s fees for his past work, and for his further work in handing over files and information relating to each entity (see [36]-[38] above).

  18. Mr Colley replied to Dr Gooley’s 25 August 2023 email later that same day advising that he was in the middle of putting together the various documents that Dr Gooley had requested and that he would continue to assist Mr Lillyman, but stating that:

“… your claims as to how you see the situation is not at all in sync with the laws and outcomes around debt collection. I am sure that you do not work for free and you would not expect me to do the tasks that you ask of me for free. If you do, please advise me immediately and I will stop collating the documents that you have asked me to provide”.

  1. Dr Gooley has not given evidence that he asked Mr Colley to cease work.

  2. From 1 September 2023, Mr Colley sent a series of emails to Dr Gooley and Mr Lillyman attaching financial documents relating to the entities identified in Dr Gooley’s 25 August 2023 plan.

  3. On 21 September 2023, Mr Colley wrote to Mr Lillyman and Dr Gooley attaching what he described as the final instalment of the information that he had been asked to provide, and stating that he would now issue his final invoice but that this should not hold up payment for the outstanding amounts still owed to him.

  4. Dr Gooley replied on 24 September 2023, stating that Mr Colley had been paid the first two payments included in Dr Gooley’s 25 August 2023 plan, asserting that Mr Colley had not yet provided all of the requested information in relation to two of the entities identified in that plan, and declining to make the third payment of $15,895 until such information was provided. Dr Gooley also stated: “Please note you have been paid far in excess of the agreed total payable to you as agreed in April 2023.” As I have explained at [55] above, Mr Colley had not entered into any agreement with Dr Gooley in February 2023 or April 2023 to accept a fixed sum for his work, including the further work that he was then being asked to do.

  5. Mr Colley replied to Dr Gooley on 26 September 2023, stating:

“This is really a simple matter. I have been asked to pass over information and I will do so. If there is anything you think that I have not given, you need simply ask and I will do my best to supply it. Alternately, it might be better if you just let Garry and I deal with matters and I am sure all will work smoothly.

Just so you know, I have NOT entered into any contract with you, or anyone, to supply you with anything. But I am cooperating fully … You do have a contract with me though, in that you agreed to pay me for the work I had to do in collating and supplying this information, and if I have now given you all that you need, I will render you with my invoice. I have NOT been overpaid for any work I have ever done and I of course require payment for what is owed, from you and any entity that has not yet paid their invoices.

I have given you everything that I am able to give.”

  1. Some further emails passed between Mr Colley and Dr Gooley about whether there was any further information that Mr Colley could provide in relation to two entities, following which Dr Gooley sent Mr Colley an email at 1:14pm on 26 September 2023 attaching an electronic payment receipt for payment of $15,895 in relation to Castletag Pty Limited, being the total fees that Mr Colley had invoiced to that entity during the period between August 2021 and March 2023, in respect of which Mr Colley had issued statements on 21 February 2023 (excluding the March 2023 invoices), on 27 March 2023, and on 25 July 2023, as referred to at [39], [41] and [45] above. Dr Gooley’s email described the payment as being made “in accordance with the program of payments”.

  2. As I have already mentioned, Mr Colley issued invoice 2310BG01 to Dr Gooley on 10 October 2023 for the sum of $8,514 (including GST), for work described in the invoice as responding to email correspondence from Dr Gooley and his accountant Mr Lillyman, collecting documents at the request of Dr Gooley, telephone discussions with Mr Lillyman concerning various entities within the deceased’s estate and their “tax lodgement status”, and researching, collating and sending to Mr Lillyman by email “documents re trusts … as requested in email dated 6 october 2023”.

  3. From 18 October to 27 November 2023, Mr Colley issued debtor statements to Dr Gooley for outstanding invoices, including invoice 2310BG01.

  4. On 28 November 2023, Dr Gooley’s solicitors asked Mr Colley to provide a further copy of invoice 2310BG01. Mr Colley obliged on 29 November 2023, noting that the invoice had been emailed to Dr Gooley on 10 October 2023.

  5. During the period between December 2023 and March 2024, Mr Colley engaged in email correspondence with Dr Gooley and his solicitors in which Mr Colley continued to press for payment of the outstanding invoices and foreshadowed that he would be invoicing the deceased’s estate for a substantial amount of work done for which he had not yet rendered fees. Dr Gooley and his lawyers denied liability in respect of the allegedly outstanding invoices, but without specifically addressing invoice 2310BG01, and denied that Mr Colley had any entitlement to fees from the deceased’s estate.

  6. As I have already mentioned, Dr Gooley gave evidence that the $15,895 payment he made to Mr Colley on 26 September 2023 “concluded what I had understood to be the payments required for all of Mr Colley’s outstanding invoices” (with the exception of disputed invoices 2308GT01 and 2308GT02 which remained in dispute at the time of the payment) and that, so far as Dr Gooley is concerned, invoice 2310BG01 issued on 10 October 2023 did not relate to work that he requested or fees that are payable by him, and that he “did not enter into a contract in relation to any of this alleged work”.

  7. I reject that evidence, which is inconsistent with the contemporaneous documents to which I have referred above. Those documents show that Dr Gooley did agree on 30 September 2022 to pay Mr Colley’s reasonable fees for work done prior to that date, and for the further work to be done in relation to “the handovers”. For the reasons I have already explained above, no different agreement was reached between Mr Colley and Dr Gooley on 21 February 2023. Dr Gooley’s repeated assertions to the contrary in his correspondence with Mr Colley and in his evidence given in these proceedings do not make it so. Nor was the 30 September 2022 agreement displaced by Dr Gooley’s proposals made on 14 August 2023 and 25 August 2023. The correspondence to which I have referred in detail above demonstrates that Mr Colley did not agree to those proposals. Any such agreement would not have been binding in any event, as Dr Gooley offered nothing more than to pay invoices for past work that were already due and payable in accordance with the September 2022 agreement. The plaintiffs have not adduced any evidence that the work described in invoice 2310BG01 was not done. On the contrary, Dr Gooley’s emails to Mr Colley immediately prior to the 26 September 2023 payment indicate that he accepted that the work had been done. Nor have the plaintiffs adduced any evidence that the fees charged by Mr Colley for that work in invoice 2310BG01 were not reasonable.

  8. For those reasons, the plaintiffs have failed to discharge their onus of proving that the fees charged in invoice 2310BG01 are not due and payable by Dr Gooley, pursuant to the agreement made on 30 September 2022. There will be an order dismissing the plaintiffs’ claim for a declaration to that effect.

The disputed invoices issued to Dr Gooley as executor of the deceased’s estate on 9 May 2024

Invoices issued on 9 May 2024 for work prior to the grant of probate to Dr Gooley

  1. On 9 May 2024, Mr Colley issued the following invoices addressed to Dr Gooley “As Executor – Estate M W Gooley”, all of which related to work done prior to the grant of probate to Dr Gooley:

  1. Invoice 2405GE01 in the amount of $8,140 (including GST) for work done during the period from 3 January 2018 to 18 February 2018 described as discussions with and advice provided to the “will executors”, information and advice supplied for the use of “Estate Lawyers”, and responding to requests made by Teece Hodgson & Ward who, it will be recalled, were the solicitors acting for Ms Melinda Foley and Ms Aleta Gooley;

  1. Invoice 2405GE02 in the amount of $4,400 (including GST) for work done during October 2018 described as responding to an email from Teece Hodgson & Ward regarding the value of “Estate Entities” and working on Dr Colley’s affidavit in the probate proceedings, which I infer is a reference to his first affidavit sworn on 25 October 2018;

  2. Invoice 2405GE03 in the amount of $29,810 (including GST) for work done during the period from 10 April 2019 to 24 June 2019 described principally as considering one of the family provision claims and “suggestions to Executors”, reviewing and responding to Dr Gooley’s affidavit sworn on 20 March 2019 and served in the probate proceedings, working on a response to an affidavit served by one of the family provision claimants in the family provision proceedings, preparing a report for Teece Hodgson & Ward about issues relating to Motasea raised in one of the family provision proceedings, working on valuations, and preparing a further affidavit to be sworn by Dr Colley in the probate proceedings;

  3. Invoice 2405GE04 in the amount of $8,360 (including GST) for work done during the period from 18 July 2019 to 9 December 2019 described as working on Mr Colley’s affidavit in the probate proceedings, reporting on an affidavit of Dr Gooley, preparing value estimates of entities, extracting information from accounting records, and reporting to Teece Hodgson & Ward in relation to one of the family provision claimants. It will be recalled that Mr Colley’s second affidavit in the probate proceedings was sworn on 19 July 2019 and responded to an affidavit of Dr Gooley sworn on 20 March 2019;

  4. Invoice 2405GE05 in the amount of $7,040 (including GST) for work done during the period from 28 April 2020 to 30 June 2020 described as responding to a subpoena in the probate proceedings, checking and correcting draft correspondence to Macpherson Kelley who were acting for Dr Gooley in the probate proceedings, and reporting to “executors”; and

  5. Invoice 2405GE06 in the amount of $7,480 (including GST) for work done during the period from 7 July 2020 to 17 August 2020 described as amending and finalising Mr Colley’s second affidavit in the probate proceedings and corresponding with Martin Street Lawyers in relation to that affidavit, extracting information from accounting records, and responding to a subpoena issued in the probate proceedings. It will be recalled that Martin Street Lawyers took over the representation of Ms Melinda Foley and Ms Aleta Gooley in the probate proceedings from Teece Hodgson & Ward at some stage during 2020.

  1. In his affidavit sworn on 2 September 2024, Dr Gooley deposed that Mr Colley’s invoices issued to him on 9 May 2024 do not relate to work that he asked Mr Colley to do, and are not payable by him. Dr Gooley characterises the work as having been done for the persons claiming to be the executors under a will that was ultimately found by the Court to be invalid, and as having been done for the benefit of those persons in support of their unsuccessful claims in the probate proceedings. It was submitted on behalf of Dr Gooley that the defendants may look to Ms Melinda Foley and Ms Aleta Gooley for payment of these invoices, but that they are not payable by Dr Gooley.

  2. It is common ground between the parties the work described in invoices 2405GE01 to 2405GE06 was undertaken at the request of Ms Foley and Ms Gooley, prior to the grant of probate to Dr Gooley in March 2021. Mr Colley gave evidence describing all of the work in those invoices as having been done for the benefit of the deceased’s estate. In his closing submissions and throughout the course of the hearing on 11 March 2025, Mr Colley referred to Ms Foley and Ms Gooley as acting at the time not for themselves but as “executors” or “assumed executors” of the estate. Mr Colley submitted that he was entitled to do the work under the assumption that they were the executors when they requested the work referred to in these invoices, and to subsequently seek payment from the estate for these invoices.

  3. I reject Mr Colley’s evidence and submissions insofar as they relate to his work described in invoices 2405GE01 to 2405GE06 as relating to the probate proceedings, including the preparation of his evidence to be relied on by Ms Foley and Ms Gooley in those proceedings in which the Court was to determine the competing claims of Ms Foley and Ms Gooley on the one hand, and Dr Gooley on the other hand, to be the executor of the estate under the deceased’s most recent valid will. Mr Colley’s submissions fail to grapple with the fact that he undertook that work knowing that Ms Foley and Ms Gooley’s claim to be the executors of the deceased’s estate was disputed, and that no grant of probate had been made to them. No administrator was appointed pending the determination of the probate dispute. If Mr Colley assumed that he could and should deal with Ms Foley and Ms Gooley as if they were in fact the executors of the estate, and that his fees for work performed at their request for the purpose of the probate proceedings was for the benefit of the estate and would ultimately be paid out of the assets of the estate irrespective of the outcome of the probate proceedings, he was mistaken. Each of Ms Foley, Ms Gooley and Dr Gooley were parties to the probate proceedings in their personal capacity, and not as executors of the deceased’s estate. To the extent that Mr Colley’s work described in invoices 2405GE01 to 2405GE06 relates to the probate proceedings, I accept the plaintiffs’ submission that Mr Colley is not entitled to look to Dr Gooley as the executor of the estate for payment of those invoices.

  4. However, I accept Mr Colley’s evidence and submissions insofar as they relate to his work described in invoices 2405GE01 to 2405GE06 as relating to the two family provision proceedings. Ms Foley and Ms Gooley were conducting the defence of those on behalf of the deceased’s estate in accordance with orders made by the Court in those proceedings. [8] The plaintiffs in the present proceedings did not dispute that Ms Foley and Ms Gooley requested the work itemised in Mr Colley’s invoices. Nor did the plaintiffs adduce any evidence that Mr Colley’s work had not benefitted the deceased’s estate in the defence of the family provision proceedings, or that Mr Colley’s fees for that work were not fair and reasonable remuneration for the work. The plaintiffs’ submissions did not articulate any reason why Mr Colley is not entitled to recover from Dr Gooley as the executor of the estate his fees for those services by way of restitution on a non-contractual quantum meruit.

    8. See Gooley v Gooley [2020] NSWSC 798 at [95]-[99].

  5. For those reasons, the plaintiffs have discharged their onus of establishing the legal and factual basis for the declarations sought that the fees charged by Mr Colley in invoices 2405GE01 to 2405GE06 issued to Dr Gooley as executor of the deceased’s estate on 9 May 2024 are not due and payable by Dr Gooley, except to the extent that those fees relate to work done for the purpose of the estate’s defence of the family provision proceedings. On the basis of the descriptions of work contained in those six invoices, the following fees will be excluded from the declaration: (1) the fees in invoice 2405GE03 for work done on 10 April 2019 and 11-22 May 2019 (totalling $12,900 excluding GST, or $14,190 including GST); and (2) the fees in invoice 2405GE04 for work done on 9 December 2019 ($1,800 excluding GST, or $1,980 including GST).

Invoices issued on 9 May 2024 for work after the grant of probate to Dr Gooley

  1. Mr Colley issued the following invoices to Dr Gooley on 9 May 2024 “As Executor – Estate M W Gooley” for work that he claims to have done after judgment was delivered in the probate proceedings:

  1. Invoice 2405GE07 in the amount of $9,196 (including GST) for work done during the period from 31 March 2021 to 29 June 2021 described as preparing a report in relation to Dr Gooley’s final submission in the probate proceedings, responding to correspondence from Macpherson Kelley including by searching for and collating records, correspondence with Macpherson Kelley in relation to Motasea, and advising in relation to a letter from Macpherson Kelley concerning “GFT4”;

  2. Invoice 2405GE08 in the amount of $11,704 (including GST) for work done during the period from 23 July 2021 to 16 December 2021 described principally as responding to a subpoena issued in new proceedings commenced by Dr Gooley and Service GFT on 6 July 2021 against Ms Aleta Gooley and others (proceeding no. 2021/193448, referred to as the GFT4 proceedings), and responding to correspondence from Macpherson Kelley in relation to the GFT4 proceedings;

  3. Invoice 2405GE09 in the amount of $3,300 (including GST) for work done during the period from 22 January 2022 to 25 May 2022 described principally as responding to an affidavit of Dr Gooley’s solicitor in proceedings 2021/354181 and supplying information for a mediation;

  4. Invoice 2405GE10 in the amount of $660 (including GST) for work done on 22 September 2022 described as dealings with the Australian Taxation Office and letter advising “re Breda lodgements”. It will be recalled that Breda Pty Ltd is one of the entities owned by the deceased’s estate.

  1. The sole basis on which the plaintiffs submitted that the fees in those four invoices are not payable by Dr Gooley as the executor of the deceased’s estate is that these invoices were beyond the scope of the agreement made on 30 September 2022 to which I have referred at [37]-[38] above as varied (according to the plaintiffs’ submission) by the subsequent correspondence to which I have referred at [39]-[62] above. For the reasons I have already explained at [37]-[62] above, there is no evidence of any agreement or arrangement between Dr Gooley and Mr Colley that varied or superseded the agreement made on 30 September 2022 that Dr Gooley would pay (or cause relevant entities to pay) Mr Colley’s fees for his past work, and his reasonable fees for his further work in handing over files and information relating to each entity (see [36]-[38] above). The work described in invoices 2405GE07 to 2405GE10 appears to fall into the “past work” category that was the subject of that agreement. The plaintiffs have adduced no evidence to the contrary and their submissions did not articulate any basis for treating any particular aspect of the work described in those invoices differently from the others. The plaintiffs have not adduced any evidence that the work was not done, or was not done competently, or that the amount of fees charged for the work was not reasonable. The plaintiffs have therefore failed to discharge their onus of proving the factual and legal basis for the negative declaration sought that the fees charged in invoices 2405GE07 to 2405GE10 are not due and payable by Dr Gooley.

The disputed invoice issued to Motasea on 13 June 2024

  1. In 2022, Motasea commenced proceeding no. 2022/107687 in this Court against Ms Aleta Gooley (the Motasea proceedings). [9]

    9. Proceeding no. 2022/107867.

  2. On 4 June 2024, Macpherson Kelley, acting on behalf of Motasea in the Motasea proceedings, served a subpoena on Mr Colley for production of documents.

  3. The plaintiffs do not dispute that Mr Colley complied with that subpoena.

  4. On 13 June 2024, Mr Colley issued an invoice 2406MO01 to Motasea in the amount of $3,350 (including GST) for his costs incurred in producing those documents.

  5. The plaintiffs contend that Motasea is not liable to pay the costs charged in that invoice because no order has been made by the Court in the Motasea proceedings pursuant to rule 33.11 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requiring Motasea to pay those costs.

  6. Rule 33.11 of the UCPR provides that the Court may order an issuing party to pay the amount of any reasonable loss or expense incurred in complying with a subpoena. Rule 42.33 of the UCPR provides that an order must not be made under r 33.11 unless the parties concerned have attempted, but failed, to agree on the amount of compliance costs to be paid.

  7. The plaintiffs contend that no order can be made under r 33.11 requiring Motasea to pay Mr Colley’s costs of complying with the subpoena because there has been no attempt made by Mr Colley to agree on the amount of those costs, as required under r 42.33.

  8. Mr Colley submitted that that he was not aware of the requirement to make an application under r 33.11 for his costs of complying with the subpoena. He gave evidence under cross-examination that he thought it was for Motasea to take the next step in negotiating the amount of those costs after it received his invoice.

  9. The Motasea proceedings remain on foot. It therefore remains open to Mr Colley to make an application to the Court in those proceedings for an order requiring Motasea to pay his costs of complying with the subpoena in the amount of invoice 2406MO01 or in some other amount. I reject the plaintiffs’ submission that Mr Colley is not entitled to make such an application because he has not attempted to reach an agreement with Motasea about the amount the compliance costs. The attempt to agree referred to in r 42.33 requires engagement by the issuing party and the subpoena recipient. Mr Colley has taken the first step towards negotiating an amount by issuing his invoice identifying the 16 hours that he says was taken to collate and produce documents in compliance with the subpoena, and discounting his claim by calculating the costs on the basis of 10 hours. Mr Colley’s attempt to reach agreement has failed because Motasea has made no response to the invoice other than to seek a declaration in the present proceedings that the costs in invoice 2406MO01 are not due and payable. The declaration is sought in those unqualified terms, with no exception in the event that the Court makes an order in the Motasea proceedings in the future requiring Motasea to pay the costs particularised in that invoice in full or in part. In my opinion, the plaintiffs’ application for a declaration in those unqualified terms is an abuse of process in that it undermines the integrity and efficacy of the Court’s processes for determining disputes relating to subpoena compliance costs in the proceeding in which the relevant subpoena has been issued. I decline to make the declaration sought for that reason.

Conclusion and orders

  1. For all of the reasons above:

  1. the plaintiffs have failed to discharge their onus of proving that the fees charged in invoices 2308GT01 and 2308GT02 issued by Mr Colley and/or TIPL to “Gooley Family Trust” on 9 August 2023 are not due and payable by Service GFT;

  2. the plaintiffs have failed to discharge their onus of proving that the fees charged in invoice 2310BG01 issued by Mr Colley and/or TIPL to Dr Gooley on 10 October 2023 are not due and payable by Dr Gooley;

  3. the plaintiffs have discharged their onus of establishing the legal and factual basis for the declarations sought that the fees charged by Mr Colley in invoices 2405GE01 to 2405GE06 issued to Dr Gooley as executor of the deceased’s estate on 9 May 2024 are not due and payable by Dr Gooley, save to the extent that those fees relate to work done for the purpose of the estate’s defence of the two family provision proceedings;

  4. the plaintiffs have failed to discharge their onus of establishing the legal and factual basis for the declarations sought that the fees charged by Mr Colley in invoices 2405GE07 to 2405GE10 issued to Dr Gooley as executor of the deceased’s estate on 9 May 2024 are not due and payable by Dr Gooley; and

  5. the plaintiffs’ claim for a declaration that the fees charged by Mr Colley in invoice 2406MO01 issued to Motasea on 13 June 2024 for his costs of complying with the subpoena issued to him by Motasea in the Motasea proceedings will be dismissed as an abuse of process.

  1. The Court makes the following declaration and orders:

  1. DECLARE that invoice 2405GE01, invoice 2405GE02, invoice 2405GE03 (to the extent that it relates to fees totalling $15,620 including GST for work done on specified dates during the periods from 11 April to 6 May 2019 and from 23 May to 24 June 2019), invoice 2405GE04 (to the extent that it relates to fees totalling $6,380 including GST for work done on specified dates during the period from 18 July to 4 December 2019), invoice 2405GE05, and invoice 2405GE06 issued by the first defendant and/or the second defendant on 9 May 2024 to the first plaintiff as the executor of the estate of the late Melville Gooley are not due and payable by the first plaintiff.

  2. ORDER that the proceedings are otherwise dismissed.

  3. Reserve the question of costs for further consideration.

  1. I make the following observations which I consider to be relevant to the costs of these proceedings.

  2. The plaintiffs chose to commence these proceedings in the Commercial List of the Equity Division. Neither the monetary amount in issue nor the nature of the dispute warranted inclusion in the Commercial List. In circumstances where the defendants were without legal representation from a relatively early stage in the proceedings, this was not drawn to the attention of the Commercial List Judge as the proceedings were managed towards final hearing.

  3. Having commenced the proceedings in the Commercial List, the plaintiffs adopted a most uncommercial approach in preparing the matter for hearing. The court book was prepared in a manner that did not arrange the documentary evidence in chronological order. Having reviewed the material in detail in the course of preparing these reasons, it is my impression that many documents appear in the court book in at least two separate places, and that this accounts for about one third of the volume of the court book. This will have increased the costs of preparing the court book.

  4. In closing submissions, the plaintiffs abandoned their claim for a declaration in sweeping terms, untethered to any particular transaction, invoice, or amount, that “no sum is owing by the plaintiffs, or any of them, to the defendants, or either of them”.

  5. Dr Gooley has succeeded in obtaining declaratory relief in relation to some, but not all of the fees that were the subject of invoices 2405GE01 to 2405GE06 issued by Mr Colley and/or TIPL on 9 May 2024. Dr Gooley’s success relates to fees totalling $49,420 (including GST).

  6. Service GFT failed in its claim for relief due to lack of evidence that the former trustee to whom Mr Colley’s services were rendered would not be entitled to be indemnified for the relevant fees out of the assets of the Gooley Family Trust, and that Mr Colley is not subrogated to that right of indemnity. That evidence was lacking because Service GFT chose at the final hearing not to press the tender of the heavily redacted settlement deed on which it had intended to rely rather than to seek the consent of the other parties to that deed to disclose the whole of its contents to Mr Colley as a matter of fairness so as to enable him to address the deed by reference to its terms as a whole rather than being limited to those parts that the plaintiffs selected to disclose to him and to the Court. [10] This forensic choice was made after the plaintiffs had incurred the costs of pleading and adducing other evidence in relation to Service GFT’s claim, and Mr Colley had been put to the trouble of responding.

    10. Transcript P11 L10–P19 L16 and P25 L43–P26 L8. See [31] above.

  7. Motasea’s claim has been found to be an abuse of process.

  8. My preliminary view is that the plaintiffs’ conduct, considered as a whole, warrants the Court exercising its discretion in relation to costs under s 98 of the Civil Procedure Act 2005 (NSW) by declining to order that costs follow the event of Dr Gooley’s limited success and by ordering the parties to pay their own costs of the proceedings. [11] As I have already mentioned, Mr Colley has not been legally represented from an early stage in the proceedings and so would not be expected to have incurred significant legal costs. My preliminary view assumes, without deciding, that Dr Gooley’s limited measure of success can even be characterised as the “event”.

    11. Maestrale v Aspite [2014] NSWCA 182 at [78]-[80] (Beazley P, as Her Excellency then was, Macfarlan and Barrett JJA agreeing), and the authorities there referred to.

  1. I will hear from the parties if either of them wishes to seek a costs order that departs from my preliminary view.

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Endnotes

Decision last updated: 07 August 2025

Most Recent Citation
Cases Citing This Decision

1

Gooley v Colley (No 2) [2025] NSWSC 1003