Hall v Carney (No 3) - [2020] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HALL v CARNEY & ORS (No 3)
[2020] SASC 177
Judgment of The Honourable Justice Stanley
24 September 2020
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - STATUTORY PROVISIONS IN TRUSTEE ACTS
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - ACTIONS AGAINST DECEASED ESTATES
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - OTHER MATTERS
The deceased made her last will and testament on 17 November 2006. She died on 27 January 2007. The will was admitted to probate on 13 November 2012. The plaintiff, Grantley Thomas Aubrey Hall (Grantley), and one of the executors, Vivienne Kathleen Carney (Vivienne), are children of the deceased, and beneficiaries of her estate.
Grantley disputed the validity of the will. The executors and Geoffrey commenced a probate action in the Court to have the will admitted to probate. Following trial, an order was made on 1 December 2011 admitting the will to probate. Prior to the issue of the grant of probate Grantley unsuccessfully brought an appeal to the Full Court .
In 2013 Grantley then commenced this action seeking further provision out of the estate of the deceased pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act).
The claim under the IFP Act was resolved at mediation and subsequently orders were made on 15 July 2014 for provision out of the estate to Grantley, which annexed terms of compromise which were made a rule of Court in the action.
Grantley then unsuccessfully sought to injunct the sale to Vivienne of a property forming part of the estate. The will gave Vivienne an option to purchase the property. Grantley was ordered to pay costs of that application to the executors and Vivienne in her capacity as beneficiary.
Grantley has asserted various causes of action against the executors relating to the sale of the property. He alleges that the property was sold at an undervalue, or not in accordance with the option which Vivienne had to purchase the property.
No substantive claim has been instituted by Grantley against the executors relating to the sale apart from claims set out in an interlocutory application brought by him which has not been further prosecuted since the injunction application failed in September 2015. The executors treated the position as if Grantley had foreshadowed claims against them and placed him on notice from at least 7 December 2015 that this was their understanding of Grantley’s position.
The executors now bring an application for barring orders pursuant to s 29(2) of the Trustee Act 1936 (SA) and an application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA).
They seek orders against the plaintiff barring him, with effect from 5 January 2020, from instituting any proceedings against them in respect of notified claims served on him on 5 July 2019; an order that the executors be at liberty to administer the estate of the deceased without regard to the notified claims; and an order that the plaintiff pay the executors’ costs of the application.
The executors also seek advice and direction of the Court for the determination without administration of the question of whether they are justified and should deduct from or set off against the plaintiff’s entitlements to the estate the amount of legal costs and disbursements that they have incurred from 10 August 2017 in responding to the questions raised by the plaintiff in relation to the accounts of the estate of the deceased and in relation to the administration of the estate of the deceased; and the question of whether they would be justified in now distributing, and should distribute, the residuary estate of the deceased.
Held:
1. The conditions precedent to enliven the Court’s power to make a barring order have been satisfied.
2. It is just in all the circumstances that an order barring absolutely the notified claims against the executors as set out in the s 29(2) notice be made.
3. It is directed that the executors are justified in making an adjustment in the distribution of the estate to reflect Grantley’s liability for costs unreasonably incurred by the estate in an amount of half the fees incurred by the executors to 4 February 2020 in responding to Grantley, namely, an amount of $23,567.13.
4. It is directed that the executors should now proceed to distribute the estate subject to any order as to the costs of this application.
Trustee Act 1936 (SA) s 29; Administration and Probate Act 1919 (SA) s 69; Law of Property Amendment Act 1859 (UK) (s 22 and 23 Vic c 35) (Lord St Leonard's Act), referred to.
Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115; Ludwig v The Public Trustee (2006) 68 NSWLR 69; Clegg v Rowland (1866) 3 LR Eq 368; Newton v Sherry [1876] 1 CPD 246; Re Timm deceased [1912] VLR 460; Re Long deceased [1951] NZLR 661; McGrath v Troy [2010] NSWSC 1470; The Will of Walker (1943) 43 SR (NSW) 305; Re Hanayama (Unreported, Supreme Court of Queensland, White J, 11 November 1998); Re K (2002) 171 FLR 286; The Public Trustee v Cenin [1999] WASC 1020; Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, discussed.
Dickman v Holley; Estate of Simpson [2013] NSWSC 18; Tschirn v Australian Executor Trustees Limited [2016] SASC 149; O’Brien v McCormick [2005] NSWSC 619; In re Tong; Hilton v Bradbury [1931] 1 Ch 202; Re Cohen deceased [1960] 1 Ch 179; Joyce v Cam [2004] NSWSC 621; Allhusen v Whittell (1867) LR 4 Eq 295; Williams v Stephens (Unreported, Supreme Court of NSW, Young J, 24 March 1986), considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Claim against the estate of the deceased person", "the claim shall be absolutely barred"

HALL v CARNEY & ORS (No 3)
[2020] SASC 177
Civil: Application
STANLEY J:
Introduction

Kathleen Florence Elliott (deceased) made her last will and testament on 17 November 2006 (the will). She died on 27 January 2007. The will was admitted to probate on 13 November 2012. The plaintiff, Grantley Thomas Aubrey Hall (Grantley), and one of the executors, Vivienne Kathleen Carney (Vivienne), are children of the deceased, and beneficiaries of her estate.
The executors bring an application for barring orders pursuant to s 29(2) of the Trustee Act 1936 (SA) (Trustee Act) and an application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the APA).
They seek orders against the plaintiff barring him, with effect from 5 January 2020, from instituting any proceedings against them in respect of notified claims served on him on 5 July 2019; an order that the executors be at liberty to administer the estate of the deceased without regard to the notified claims; and an order that the plaintiff pay the executors’ costs of the application.
The executors also seek advice and direction of the Court pursuant to s 69 of the APA for the determination of the following matters in connection with the administration of the estate of the deceased in accordance with her will, namely:
(a)Whether in determining the value, payment and appropriation of the assets of the deceased in satisfaction of the equal one-third share in the residuary estate of the deceased under clause 6.3 of the will of the residuary beneficiaries the executors are justified in doing and should deduct from or set off against the entitlements of the plaintiff the amount of legal costs and disbursements that the executors have incurred from 10 August 2017 in responding to the questions raised by the plaintiff in relation to the accounts of the estate of the deceased and in relation to the administration of the estate of the deceased as referred to in the affidavit of Vivienne Kathleen Carney sworn on 21 March 2019; and
(b)Whether the executors would be justified in now distributing, and should distribute, the residuary estate of the deceased, subject to such orders as the Court may make on the third interlocutory application of the executors as to costs or other matters, to the residuary beneficiaries under the will.
The evidence
On the hearing of the application the executors read the following affidavits:
·Eighth affidavit of Shona Hoskins sworn on 16 April 2020.[1]
[1]    FDN 74.
·Seventh affidavit of Shona Hoskins sworn on 4 February 2020.[2]
[2]    FDN 71.
·Affidavit of Shona Hoskins sworn on 7 September 2015.[3]
[3]    FDN 41.
·Affidavit of Mark Peter Jappe affirmed on 17 December 2019.[4]
[4]    FDN 66.
·Second affidavit of Mark Peter Jappe affirmed on 28 January 2020.[5]
[5]    FDN 69.
·Affidavit of Executors sworn on 27 June 2013.[6]
[6]    FDN 5.
·First affidavit of James Cavalier Douglas sworn on 7 September 2015.[7]
[7]    FDN 40.
·Second affidavit of James Cavalier Douglas sworn on 7 September 2015.[8]
[8]    FDN 42.
·Third affidavit of James Cavalier Douglas sworn on 1 February 2017.[9]
[9]    FDN 55.
·Affidavit of Vivienne Kathleen Carney sworn on 27 June 2013.[10]
·Affidavit of Vivienne Kathleen Carney affirmed on 10 September 2015.[11]
·Affidavit of Vivienne Kathleen Carney sworn on 20 March 2019.[12]
·Affidavit of Geoffrey Gordon Elliott sworn on 20 March 2014.[13]
·Fourth affidavit of Grantley Thomas Aubrey Hall sworn on 6 December 2013.[14]
·Ninth affidavit of Grantley Thomas Aubrey Hall affirmed on 6 December 2018.[15]
·Tenth affidavit of Grantley Thomas Aubrey Hall affirmed on 4 June 2019.[16]
·Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed on 7 April 2020.[17]
·Third affidavit of Duncan James Fowler affirmed on 24 August 2015.[18]
[10] FDN 6.
[11] FDN 44.
[12] FDN 61.
[13] FDN 21.
[14] FDN 15.
[15] FDN 59.
[16] FDN 63.
[17] FDN 73.
[18] FDN 39.
The plaintiff read the affidavit of Timothy Campbell affirmed on 5 February 2020[19] and the eighth affidavit of Grantley Thomas Aubrey Hall sworn on 22 September 2015.[20]
[19] FDN 72.
[20] FDN 48.
I will refer to this evidence in the course of these reasons for the purpose of making relevant findings of fact.
Background to the application
Grantley and Vivienne are the two living children of the deceased. The third defendant, Geoffrey Gordon Elliott (Geoffrey) is the deceased’s second husband and widower. Geoffrey is now 94 years of age.
The deceased died leaving the will appointing Vivienne and James Cavalier Douglas (the executors) as her executors and trustees.
Grantley disputed the validity of the will. The executors and Geoffrey commenced a probate action (probate action) in the Court to have the will admitted to probate. Following trial, an order was made on 1 December 2011 admitting the will to probate. Prior to the issue of the grant of probate Grantley appealed to the Full Court against the order admitting the will to probate. The appeal was dismissed.
Under the will Vivienne was left certain personal items; real property at 8 Dawson Avenue, South Plympton (the Dawson Avenue property); and a dance studio business. Geoffrey was given a right of residence for a limited period in the deceased’s principal residence at 247 Anzac Highway Plympton (Anzac Highway property) after which the property fell into the residue. The will gave Vivienne an option to purchase the Anzac Highway property. The residue of the estate was left in equal shares to Vivienne, Grantley and Geoffrey.
In 2013 Grantley commenced this action seeking further provision out of the estate of the deceased pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act).
The claim was resolved at mediation in July 2014.
The claim under the IFP Act was resolved by an order made on 15 July 2014 for provision out of the estate to Grantley, which annexed terms of compromise which were made a rule of Court in the action.
Under the settlement Grantley received a further legacy of $250,000 and certain agreed costs of the probate action. The settlement also provided for the manner in which Vivienne was to exercise her option to purchase the Anzac Highway property. Subsequently Vivienne exercised her option to purchase the Anzac Highway property.
In 2015 Grantley sought to injunct the sale of the Anzac Highway property to Vivienne. The injunction was refused and he was ordered to pay costs of that application to the executors and Vivienne in her capacity as beneficiary.
Settlement of the sale of the Anzac Highway property to Vivienne occurred on 7 October 2015.
Grantley has asserted various causes of action against the executors relating to the sale of the Anzac Highway property. It appears he alleges that the property was sold at an undervalue, or not in accordance with the option which Vivienne had to purchase the property.
No substantive claim has been instituted by Grantley against the executors relating to the sale apart from claims set out in an interlocutory application brought by him which has not been further prosecuted since the injunction application failed in September 2015.[21]
[21] Interlocutory application dated 24 August 2015 (FDN 38).
The executors treated the position as if Grantley had foreshadowed claims against them and placed him on notice from at least 7 December 2015 that this was their understanding of Grantley’s position.
Grantley continued to reiterate that any action taken by him would be against the executors personally. He indicated that he was investigating the liability of the executors and until that matter was fully investigated, including by obtaining further detailed legal advice, the situation was uncertain.[22]
[22] Affirmed on 6 December 2018 (FDN 59).
It appears to the executors that Grantley’s foreshadowed claims against them can be characterised as being founded in negligence or devastavit.
The executors deny that they sold the Anzac Highway property to Vivienne at undervalue, or have acted in breach of their duties, or negligently as the executors of the deceased’s estate. On the contrary they assert that they acted in accordance with the terms of the compromise made a rule of Court in this action.
The application for barring orders
The executors are faced with a possibility of claims by Grantley and some uncertainty as to the relevant time limits, if any, which would apply to the foreshadowed claims.
This means the executors are not in a position to complete distribution of the estate to the residuary beneficiaries while these claims are unresolved.
The need for caution on the part of the executors arises from the well-established principle that if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by another, he will be liable to that other person if he deals with the fund in disregard of that notice should the claim subsequently prove to be well-founded.[23]
[23] Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [189].
As a result, on 21 March 2019 the executors brought an interlocutory application in which they sought advice and direction pursuant to s 69 or the determination of issues arising in the administration of the deceased’s estate.[24] They sought advice and direction and the determination of the issue of whether they should use the procedures set out in s 29 of the Trustee Act, and, if so, the manner and form in which notices under that section should be given to Grantley.
[24] Interlocutory application dated 21 March 2019 (FDN 68).
Section 29 of the Trustee Act provides:
(1) Where a representative or trustee has given notices such as would have been given by the court in an administration action for creditors, beneficiaries, and others to send in to the representative or trustee their claims against the estate of the deceased person or against the trust property, the representative or trustee may, at the expiration of the time named in the notices, distribute the estate of the deceased person or the trust property or any part thereof amongst the persons entitled thereto, having regard only to the claims of which he then has notice, and shall not be liable for the estate or property or any part thereof so distributed to any person of whose claim he had no notice at the time of the distribution.
(2) Where a representative or trustee has received a claim or notice of claim against the estate of a deceased person or against a trust property, and he disputes the claim, that representative or trustee may give to the person making the claim, or giving the notice, a notice in writing that the claim is disputed, and requiring the claimant either to withdraw the claim or to institute proceedings to enforce it within six months of the service of the last-mentioned notice; and if the claim is not so withdrawn or prosecuted, the representative or trustee may apply by summons in chambers to any judge of the Supreme Court, on affidavit setting out the facts for an order that, as against such representative or trustee, the claim shall be absolutely barred, and any such judge may make such order as he deems just, and the order shall bind all persons whom it purports to affect.
(3) Nothing in this section shall prejudice the right of any person to follow the estate or property or any part thereof into the hands of any person who has received it.
(4) A representative or trustee desirous of giving notices under this section may, on application, obtain the direction of the Supreme Court, or of the Master thereof, as to what notices are proper to be given, and as to the mode of service.
(5) The Supreme Court may require that notice be given of an application under subsection (4) to any person who has, in the opinion of the Court, a proper interest in the matter (but an order may be made, if the Court thinks fit, although no notice has been given of the application).
The executors are representatives for the purposes of s 29 and were entitled to invoke the jurisdiction conferred upon the Court by that provision.
On the interlocutory application a master authorised the giving of the notices contemplated by ss 29(1) and (2). Two notices were served on Grantley on 5 July 2019. As a result, Grantley had until 5 January 2020 to institute proceedings to bring forward any claim or face the risk that the Court might make a barring order. The notice applied to claims as defined in the notice. These included a claim against the estate or a claim by Grantley against the executors in relation to the estate. The meaning of Notified Claims was defined in the notice. The application for a barring order is confined to those Notified Claims. These are all claims of which Grantley has given notice to the executors and which they dispute.
I am satisfied that Grantley did not take steps either to withdraw the claims or institute proceedings to enforce the claims within the six-month period prescribed by s 29(2) of the Trustee Act. Instead he wrote to the executors’ solicitors on 5 January 2020 reiterating his intention to bring legal action against the executors in the immediate future. I find that Grantley did not institute proceedings of any kind against the executors within the six-month period prescribed by s 29(2). Grantley did not bring any appeal from the master’s orders. The time within which to have appealed expired more than a year ago.

Accordingly, the conditions precedent to enliven the Court’s power to make a barring order have been satisfied. The issue is whether there is any reason in the interests of justice why the barring order sought by the executors in respect of the Notified Claims in the s 29(2) notice should not be made.
I should add that the Court is only concerned to decide whether to make the order contemplated by s 29(2). The Court is not concerned with the notice given under s 29(1) which required Grantley to provide any further claims that he had against the executors which he had not already notified.
The plaintiff’s submissions
Grantley submits that any barring order the Court makes must exclude four claims, two of which are submitted to have arisen subsequent to the six-month period. In an affidavit he also referred to what he describes as two further claims concerning the appointment of a forensic accountant and an adjudication of legal costs.[25] Neither of these latter matters was pressed at the hearing. That may be because these matters are not claims as such but matters that Grantley identifies as steps that may be required in the future for the purposes of the disposition of this application. I have not considered them further.
[25] Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed 7 April 2020 (FDN 73) at exhibit ‘GTAH 86’.
I turn to consideration of the four claims Grantley submits should be excluded from any barring order.
First, Grantley appears to contend that the terms of compromise provide that within 60 days of the date of the orders that became a rule of Court, the executors would pay him the sum of $50,000 from the deceased’s residuary estate by way of satisfaction and discharge of the order as to costs made in the probate action. The payment was made to Grantley in September 2014. Grantley contends that it does not appear in the schedule of the proposed final distribution set out in a letter dated 24 December 2019.[26] Grantley asserts that as a result he and the other beneficiaries cannot know if the proposed final distribution is correct. As the final distribution has not occurred, any claim in relation to it must be excluded from the barring order. Grantley submits the Court should not make an order barring a claim that the executors provide a proper explanation of from where the $50,000 was obtained.
[26] Second affidavit of Mark Peter Jappe affirmed 28 January 2020 (FDN 69) at exhibit ‘MP3’.
Second, Grantley contends that a marshalling exercise in relation to the income and expenses of the Dawson Street property found that Vivienne owed the estate $3,736.00 but the schedule discloses that the executors do not intend to deduct this sum from Vivienne’s final distribution. As Grantley could not have known this until served with an affidavit of Mr Jappe, solicitor for the executors, he submits that in the interests of justice any barring order must exclude this claim.
Third, Grantley contends that there was not an effective exercise of the option by Vivienne to purchase the Anzac Highway property. An effective exercise of the option could not have occurred until a proper valuation was obtained by the executors. This did not occur until after the timeframe fixed by the executors for the exercise of the option. Nonetheless, the defendants proceeded to effect the sale and transfer of the property to Vivienne. Grantley contends that as a result he has a claim for his share of the difference between the purchase price and what would have been achieved by a sale of the property at auction. He submits that this results in a loss to the estate in the order of $225,000. He contends that as the master did not deal with this claim, it should be excluded from any barring order.
In addition, in his affidavit affirmed on 7 April 2020 Grantley refers to a dispute with the executors over their failure to rent out the Anzac Highway property. At issue was whether the property was in a tenantable condition and whether it made commercial sense to rent out the property in circumstances where that would create a capital gains tax liability. Again, no mention was made of this at the hearing. No claim for loss by Grantley has been made. Accordingly, I have not dealt with it.
Fourth, Grantley also contends that he should not be precluded from bringing a claim in respect of a payment that was made on behalf of Vivienne for health insurance premiums from the rent proceeds of the Dawson Street property.
Finally, Grantley submits that it would not be just for the Court to make the barring order sought in circumstances where during the relevant six-month period from the service of the notice upon him he was in ill-health and without legal representation.
The making of a barring order under s 29(2) of the Trustee Act
The starting point for consideration of whether the Court should make a barring order is the construction of s 29(2) of the Trustee Act. There is little authority as to the circumstances in which the Court will make a barring order under section 29(2) where the claim has not been withdrawn or proceedings issued following the giving of notice under that provision.
Section 29 has its genesis in the UK legislation known as Lord St Leonard’s Act of 1859[27] (Lord St Leonard’s Act).
[27] Law of Property Amendment Act 1859 (UK) (22 & 23 Vic c35).
The history and procedure for barring claims established by that legislation is discussed in the context of the equivalent New South Wales provision by Campbell J in Ludwig v The Public Trustee.[28] An appeal from that decision was dismissed by the NSW Court of Appeal in Ludwig v The Public Trustee.[29]The NSW legislation considered in that case dates from 1977. That legislation does not use the language found in s 29 of the Trustee Act of barring a claim “against the estate”. The Trustee Act still maintains the original language used in Lord St Leonard’s Act. The NSW legislation refers to “a claim in respect of the assets of that estate”.[30] Prior to 1977 the language of the NSW legislation referred to “their claims against the estate”.[31]
[28] [2006] NSWSC 890 (2006) 68 NSWLR 69.
[29] [2008] NSWCA 115.
[30] See Ludwig v The Public Trustee [2006] NSWSC 890 at [263].
[31] [2006] NSWSC 890 at [266]. The difference in the pre-1977 and post-1977 positions is outlined in Ludwig at [268].
Campbell J surveyed the history of the provision. He described how before the enactment of the Lord St Leonard’s Act an executor or administrator who had distributed the assets of an estate to beneficiaries could later be held liable to an unpaid creditor of the estate. An executor or administrator could obtain protection against this risk by bringing a suit in Chancery for the administration of the estate and undertaking the distribution in accordance with directions of the court. A procedure had developed in administration suits in the Chancery court where notices would be issued, in a form directed by the court, calling on persons with claims against the estate to notify their claims by a particular date, and effecting a distribution taking into account only those claims.[32]
[32] Ludwig v Public Trustee [2006] NSWSC 890 at [277], (2006) 68 NSWLR 69 at 77.
While there was no analogous provision to s 29(2) in the Lord St Leonard’s Act, the purpose of the statutory notice procedure which the Act prescribed was explained by Sir Richard Malins VC in Clegg v Rowland[33] as follows:[34]
... I intend to act on the principle that, by these advertisements, and by these proceedings under the Act, an executor is entitled to have, and in point of fact has, all the protection which he would have had under the old rule of Court, if the assets had been administered by such executor under the decree of the Court.
[33] (1866) 3 LR Eq 368.
[34] (1866) 3 LR Eq 368 at 375
In Ludwig Campbell J described the equivalent provisions to s 29 as being enacted in the context of the administration of deceased estates. The purpose of the provisions in s 29(1) and (2) is to facilitate the administration of those estates.[35] They do so by conferring a protective mechanism on executors which advances the due administration of an estate to the benefit of the beneficiaries while affording claimants an adequate opportunity to pursue their claims.
[35] Ludwig v Public Trustee [2006] NSWSC 890 at [289], (2006) 68 NSWLR 69 at 80.
“Claims against the estate of the deceased person”
It is not open on this application to attack the form of the s 29(2) notice which was authorised by the master. The s 29(2) notice which was issued to Grantley conformed to the requirements of the subsection. The phrase “claims against the estate of the deceased person” on the authorities extends to claims alleging wrongdoing by executors or trustees in relation to the administration of the estate of a deceased person.
In Newton v Sherry[36] the Court considered issues concerning the form of notice required under the Lord St Leonard’s Act, and whether the section applied to claims by persons as next of kin of the deceased. In that case the deceased had died intestate, and a sister of the deceased obtained letters of administration. The sister issued notices under the Act calling for claims against the estate, and then distributed the estate amongst the siblings of the deceased. A daughter of the deceased had been out of the country. She was entitled to the estate on intestacy. She procured the revocation of the grant to the sister, and obtained a grant of letters of administration of the deceased’s estate. The daughter took action against the sureties of the administration bond provided by the sister when obtaining letters of administration. At issue was whether the notice issued by the sister was effective and bound the daughter as next of kin to bring in her claim to the intestate estate. Lindley J held that had the claim been made against the administratrix she would have been protected by the Act.[37]
[36] [1876] 1 CPD 246.
[37] [1876] 1 CPD 246 at 258.
The authorities suggest that claims for breaches of duty against the representative are claims “against the estate” for these purposes.
In Re Timm deceased[38] the Supreme Court of Victoria was concerned with an application for a barring order where a person had given notice to an executor that he was intending to make an application to revoke probate. The issue was whether the executor had notice of a claim against the estate represented by him as executor. Cussen J held that a notified claim of that nature was not within the section and an application to revoke probate could not be barred by that summary procedure.
[38] [1912] VLR 460.
Cussen J made the obiter observation that:[39]
Ample effect can be given to the words by referring them to the ordinary claims made against an estate, or the executor as representing that estate, whether the claims are monetary or proprietary, or otherwise. The language is necessarily very general, whether the view taken by the executor is the right one or not.
[39] [1912] VLR 460 at 462.
In Re Barber deceased[40] Cussen ACJ further considered the issue. In that case the administrator of the estate of the deceased who had died intestate sought to sell a house in which the deceased’s husband resided but to which the deceased’s estate had legal title. The husband claimed a beneficial interest in the property on the basis he had contributed to the purchase price. The administrator gave a notice under the Act requiring the husband to take proceedings to enforce his claim to the property. The husband did not do so. The issue before the Court was whether the claim of the husband to the land was a claim “against the estate” for the purposes of the section. The Court held that the claim of the husband was included in the section. Cussen ACJ said that he thought the expression must be given a wide meaning.[41] He said that claims made against the executor representing the estate fell within the concept of claims made against an estate.
[40] [1924] VLR 123.
[41] [1924] VLR 123 at 126.
The authorities are against giving a narrow construction to the provision. The Privy Council considered the meaning of the equivalent provision in New Zealand in Guardian Trust and Executors Company of New Zealand v Public Trustee of New Zealand.[42]The case was primarily concerned with the question of whether executors, who paid out pecuniary legacies under a will, where they knew that the next of kin proposed to seek revocation of the grant on the ground of a lack of testamentary capacity of the testator, were protected by the fact that they had issued notices under the Act asking persons to send in their claims against the estate.
[42] [1942] AC 115.
It was held that the provision did not affect the position of persons who claimed the executor had no right to administer the estate. However the Privy Council, in an obiter observation, took a wide view of the ambit of the section stating:[43]
It is plain from this, as indeed it is from the language of the section itself, that the only persons who are to be affected by the notices are those whose claims against the estate are to be met by the executor or administrator as the case may be in a due course of the administration, and not persons whose claims are that the executor or administrator has no right to administer the estate at all.
[43] [1942] AC 115 at 125.
The matter was clarified by the subsequent NZ Court of Appeal decision in Re Long deceased.[44]In that case the Public Trustee was administrator of the estate of the deceased. Under the deceased’s will her residuary estate was held upon trust to pay the income thereof to her son L and where that was not adequate the capital for L’s maintenance. After the deceased’s death another son, W, offered to look after L and thereafter the Public Trustee paid monies to W to maintain L. After L’s death, W claimed against the Public Trustee for the costs of maintaining L. The Public Trustee rejected W’s claim and purported to give a notice under the legislation to take proceedings to substantiate W’s claim. At issue was whether the legislation applied to claims in respect of liabilities incurred by a personal representative in the course of administering the deceased’s estate. It was held that category of claims was within the provision. The Court departed from the view of the trial judge that any claim arising out of a contract made by an administrator, even for the purposes of and relating to the estate, would not be a “claim against the estate”.
[44] [1951] NZLR 661.
The Court referred to the earlier cited passage from Cussen J in Re Timm and said:[45]
The reference to claims against the executor as being “claims against the estate” may be noted in passing, as it suggests the view that claims against the executor personally may be within [the legislative equivalent to s 29 of the Trustee Act 1936 (SA)].
…
It will be seen that none of these judgments actually decides the present question, but we think that they are valuable in indicating a preference for a “wide meaning” to be given to the expression “claim against the estate”…
[45] [1951] NZLR 661 at 670-671.
The Court referred to Newton v Sherry and the Privy Council’s decision in Guardian Trust and citing the latter judgment said that “claim against the estate” must be read as including all claims that are to be met by the administrator in a due course of administration.[46] The Court further said:[47]
... and we think it follows from what has been said that post-mortem claims – that is, those arising from contracts made by the administrator in the due course of administration – are within the section.
[46] [1951] NZLR 661 at 671.
[47] [1951] NZLR 661 at 671.
The Court pointed out that the section provides a special procedure for the benefit of administrators and that they are presumably given this advantage because of the special difficulties of their position. The Court then summarised the conclusions which they had reached following the review of the case law described above and said that the section:[48]
… provides a special procedure for the benefit of administrators, a procedure which is not available to ordinary persons. Presumably, administrators were given this advantage because of the special difficulties of their position; uncertain claims might make it impossible for them to ascertain the amount of the estate assets so as to have duty assessed and paid, and might also prevent beneficiaries from obtaining payment of moneys or transfer of properties to which they would otherwise be entitled. We think, therefore, that it is proper to give the section its full, natural meaning as applying in every case where there is a claim of any sort against the administrator as such, requiring to be met by him in the due course of his administration, whether it affects the assets of the estate directly or affects them indirectly through the administrator. In either case, the administrator cannot safely distribute without the protection of the Court, and that protection is as valuable in the one case as in the other. When the section is applicable, and is applied, to a claim in respect of which the administrator is personally liable, the effect will necessarily be to bar the personal liability as well as to exonerate the assets from the claim for indemnity. The section avails for the protection of the administrator throughout the whole course of the performance of his duties as administrator. There may be cases in which the administrator has not got, or has lost, or may lose, the right to an indemnity out of the estate, but those may be regarded as exceptional cases, not affecting the general rule, and must be left for decision when they arise.
[emphasis added]
[48] [1951] NZLR 661 at 672.
Re Long (deceased) is authority for the proposition that the provision applies to personal claims against the representative, whether contractual or otherwise. Section 29(2) applies to claims made against the executors where what is alleged is some form of default or breach of duty by the representative in connection with the administration of the estate. Such claims can be barred by using the procedure prescribed by s 29(2). Re Long has been referred with approval on this point in subsequent Australian cases.[49]
[49] Ludwig v Public Trustee [2006] NSWSC 890 at [291]-[292], (2006) 68 NSWLR 69 at 80-81; Re K [2002] NTSC 63 at [29], (2002) 171 FLR 286 at 295.
A wide view has also been taken to the term “claim” when used in section 29(2) and its equivalent in other jurisdictions. In McGrath v Troy[50] White J of the New South Wales Supreme Court, in a case concerned with ss 92 and 93 of the Probate and Administration Act (NSW), said:[51]
Counsel submitted that prior notifications were not notices of a claim within the meaning of s 92, but mere "assertions" or "conjectures". The dictionary meaning of "claim" in the Macquarie Dictionary includes an assertion of a right or alleged right and includes the assertion of something as a fact. To make an assertion is to make a claim.
[50] [2010] NSWSC 1470.
[51] [2010] NSWSC 1470 at [92].
His Honour pointed out that:[52]
The Act does not protect against claims or demands of which the administrator has notice or knowledge. If the administrator knows or has notice of facts which entitle a person to distribution of the estate, or knows or has notice of a demand, then he or she distributes at his or her peril. If an administrator wishes to bar a claim of which he or she has notice, then he or she must proceed under s 93.
[52] [2010] NSWSC 1470 at [99].
The barring of claims
As I have said, there is not a great deal of recent authority about how the Court will exercise its power to make an order that, as against the representative, “the claim shall be absolutely barred”.
While there is variation in the legislation between the jurisdictions, all Australian jurisdictions have statutory provisions that seek to alleviate this problem by enabling a personal representative, and in some jurisdictions, a trustee to take steps to force a person making a claim in respect of the assets of the estate to institute proceedings to enforce it. These provisions do not have their origins in Lord St Leonards’ Act, but were introduced to complement the provisions based on that legislation for giving notice of intended distribution.[53] In introducing the Bill for the original Victorian provision, it was noted that the provision dealing with notice of intended distribution:[54]
… worked very well, but now some creditors are resorting to a new method of avoiding a very reasonable section. They give notice of their claims, but will not prove them, in the hope that by that means the executor or the administrator will be induced to make some compromise with them. It almost amounts to a blackmailing proceeding. … He will not take any steps to prove it, and the executors will have to wait for six years to pass for the claim to be barred. In the meantime the beneficiaries have to do without the property. What I propose is that the executor or administrator, upon receiving notice of a claim, shall give notice to the claimant to take proceedings to prove his claim within three months.
[53] The history of these provisions in the various Australian jurisdictions is traced in the Queensland Law Reform Commission Report “Administration of Estates of Deceased Persons” No. 65, April 2009, volume 2, chapter 22 at pages 326-340.
[54] Ludwig v Public Trustee [2006] NSWSC 890 at [272], (2006) 68 NSWLR 69 at 77.

In the ACT, New South Wales and Victoria, the provisions are found in the administration legislation.[55] In Queensland, Tasmania, Western Australia and South Australia the provisions are found in the trustee legislation.[56] In the Northern Territory, provisions are included in both the administration and trustee legislation. It has been said of the policy underlying the provision in the trustee legislation that it:[57]
… is the very sound one of permitting deceased estates to be administered expeditiously and that administrators should not be unduly delayed from completing the task of administration and distribution when creditors decline to act diligently.
[55] Administration and Probate Act 1929 (ACT) s 65; Probate and Administration Act 1898 (NSW) s 93; Administration and Probate Act 1958 (Vic) s 30.
[56] Trusts Act 1973 (Qld) s 68; Trustee Act 1989 (Tas) ss 25A(5) and (6); Trustees Act 1962 (WA) s 64; Trustee Act 1936 (SA) s 29(2).
[57] Re Hanayama (Unreported, Supreme Court of Queensland, White J, 11 November 1998) at [25].
In The Will of Walker[58] Nicholas CJ in Eq in the New South Wales Supreme Court considered the equivalent provision and said:[59]
If there are disputable claims, then it appears to me that the executor has the right under s. 93 to call upon a claimant to prosecute his claim and, if he fails to do so, the executor is entitled to apply to the Court for an order barring the claim.
[58] (1943) 43 SR (NSW) 305.
[59] (1943) 43 SR (NSW) 305 at 307.
In that case the relevant notices calling on the respondents to take proceedings to enforce their respective claims by instituting proceedings within six months had been published, but neither of the respondents had done so. Nicholas CJ in Eq held that the claims of the two respondents should be barred.[60]
[60] (1943) 43 SR (NSW) 305 at 307.
In some jurisdictions the language of the legislation is wider or less stringent than the position under s 29(2), and some jurisdictions expressly empower the court to extend the period of time in which the claimant may commence proceedings.[61] For example, the Northern Territory legislation considered in Re K[62] empowered the Court to make an order barring the claim if, after the period of six months has expired, that person does not satisfy the Court that he or she is duly prosecuting his or her claim. [63] Angel J considered that he had a discretion to bar the claim if he was satisfied that the claim has not been duly prosecuted.[64]
[61] Trusts Act 1973 (Qld) s 68(3); Administration and Probate Act 1958 (Vic) s 30(3); Trustees Act 1962 (WA) s 64(3).
[62] [2002] NTSC 63, (2002) 171 FLR 286.
[63] Administration and Probate Act 1969 (NT) s 97.
[64] [2002] NTSC 63 at [39], (2002) 171 FLR 286 at 297.
Another example is s 64 of the Trustees Act 1962 (WA), which was considered in The Public Trustee v Cenin.[65]Section 64(3) of the Western Australian legislation granted a discretion to the Court to extend time for the institution of proceedings. The Supreme Court considered that there was no point in extending the time because there was no realistic possibility that the defendant could institute and prosecute the proceedings with the diligence necessary. That was in circumstances where the estate was two and a half years old and that winding up and settlement of the estate had been delayed by virtue of the matter.
[65] [1999] WASC 1020.
No such discretion exists to extend time for Grantley to institute proceedings to enforce his claims. The Court does not have any power to extend the time prescribed by s 29(2) within which proceedings are to be instituted or the claims withdrawn. The power of the Court is confined to making the barring order or declining to do so.
Pursuant to s 29(2) the Court may make such order as it deems just, and the order shall bind all persons whom it purports to affect.
The barring of the Notified Claims which Grantley wishes to bring will be a just order for the purposes of s 29(2) of the Trustee Act 1936
Any barring order made by the Court cannot extend beyond barring the Notified Claims set out in the s 29(2) notice served on Grantley on 5 July 2019. The preconditions for the making of a barring order have been satisfied. At issue is whether in all the circumstances it is just to do so. I turn now to that issue.
I am satisfied that the actions of Grantley have caused very considerable delay in the administration of the estate in circumstances where the grant of probate of the will occurred about seven and a half years ago, and where the deceased died over 12 years ago.
As is set out further below, there has been inordinate delay by Grantley in prosecuting the claims which he says that he wishes to make against the executors in circumstances where he has had the ability to prosecute such claims as he wished to make for at least five years.
It would be extraordinarily oppressive and prejudicial not only to the executors, but also to the other two residuary beneficiaries of the estate, if the Court was to refuse to make a barring order in relation to the Notified Claims in circumstances where the master’s reasons made it abundantly clear to Grantley that if he was to institute proceedings he had to do this within the 6 month period after service of the s 29(2) notice. Further Grantley acknowledged that:[66]
Importantly, if a 6 month deadline for filing an action against the Executors personally is ordered at this time, I will have little choice but to devote myself to that process. Otherwise I may not get the required work done in time.
[66] Tenth affidavit of Grantley Thomas Aubrey Hall affirmed 4 June 2019 (FDN 63) at paragraph J.j.
Despite knowing that he would need to comply with the s 29(2) notice deadline for instituting proceedings he has not done so, in circumstances where he could have done what he foreshadowed he would do.
Grantley has prevaricated for years about instituting the claims which he says he wishes to make including during the lengthy period of time, of at least about seven to eight years,[67] that he was represented by his solicitor Duncan Fowler. During that time Grantley worked together with Mr Fowler without any significant problems.[68]
[67] Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed 7 April 2020 (FDN 73) at [5].
[68] Tenth affidavit of Grantley Thomas Aubrey Hall affirmed 4 June 2019 (FDN 63) at paragraph E(d).
In August 2015 Grantley instituted two of his claims against the executors by interlocutory application,[69] but having failed in an application for an injunction he subsequently failed to pursue those applications. In effect, he abandoned them.
[69] Interlocutory application dated 24 August 2015 (FDN 38).
Grantley has had a proper opportunity to institute the claims which he contends he wishes to agitate against the executors. At the latest he could have instituted those actions five years ago but has not done so.
There is a lengthy history of delay by Grantley in his conduct of matters relating to the estate of the deceased.[70]
[70] See, e.g., the indulgences requested by Grantley in his fourth affidavit sworn 6 December 2013 (FDN 15).
Grantley has given various excuses for having failed to institute proceedings within the six-month period.[71] While the Court is not unsympathetic to the difficulty posed by ill health, there must be a limit to the indulgences it can grant on this ground. Grantley’s claims about his state of health date back to at least December 2013.[72] As at 5 July 2019 he had six months to take action. He failed to do so. Insofar as those excuses relate to Grantley seeking to engage new solicitors the notice of acting of his new solicitors was filed on 3 February 2020 but they were instructed on 18 December 2019. Importantly, Grantley had from October 2018 to obtain fresh legal representation. He refers in his tenth affidavit to his efforts to obtain such representation prior to being served with the s 29(2) notice. He refers in his eleventh affidavit to the difficulties he asserts in finding another solicitor but there is no evidence of what, if anything, he did to obtain legal representation before 18 December 2019 after he was served with the notice. His evidence is limited to a recital of actions he undertook but which conspicuously do not refer to any attempts to retain solicitors.
[71] Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed 7 April 2020 (FDN 73).
[72] Fourth affidavit of Grantley Thomas Aubrey Hall sworn 6 December 2013 (FDN 15).
Moreover, in the more than six months since the new solicitors have been engaged, Grantley has not instituted the foreshadowed proceedings or even formulated draft proceedings.
Any suggestion that a barring order should not be made on the basis that proceedings need to be prepared by solicitors rather than Grantley personally can be rejected on the basis his new solicitors have had ample time to demonstrate that there are reasonably arguable causes of action which, in the interests of justice, Grantley should be permitted to bring. That has not occurred.
An order that the Notified Claims shall be absolutely barred can be considered just for the purposes of s 29(2) having regard to Grantley’s failure to identify any reasonably arguable claims against the executors.
If there are no reasonably arguable claims that Grantley wishes to agitate the making of a barring order cannot cause him injustice, and it would be just for the Court to make such an order.
It is not entirely clear whether Grantley opposes the making of a barring order or merely opposes certain claims being barred. Grantley has said he opposes the making of a barring order because he believes that valid claims exist against the executors that ought to be agitated and have not yet been considered by the Court.[73]
[73] Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed 7 April 2020 (FDN 73) at [17].
However, in his submissions to the Court on the hearing of the application for the barring order he opposes the Court making orders that bar claims for: the proper accounting for the sum of $50,000 paid to him by way of costs in the probate action; an amount of $3,736 owed by Vivienne to the estate in respect of the Dawson Street property; the loss he alleges he has suffered as a result of the ineffective exercise by Vivienne of the option to purchase the Anzac Highway property; and for payment made on behalf of Vivienne for health insurance premiums from the rent proceeds of that property. This appears to be his position.
For the reasons that follow I am satisfied that these claims are not reasonably arguable.
Claim in relation to the payment of $50,000 made to Grantley for the costs of the probate action
Grantley submits that an order should not be made barring him from making any claim that the executors provide a proper explanation of the source of the $50,000 paid to him for his costs of the probate action.
I do not accept this submission.
This sum was paid to Grantley in September 2014. This is not in dispute. He has no right now to claim an explanation for this payment. The source of the payment has been evident from various trust account statements kept by the executors and their solicitors since that time. They have been provided to Grantley or his solicitors. The draft distribution statement prepared in December 2019 and exhibited to Mr Jappe’s second affidavit was prepared for a different purpose. There is no reason why it should refer to a payment made more than five years earlier. This claim does not provide any basis to refuse the application made by the executors for a barring order. On the contrary I consider that this submission reflects the unreasonable approach Grantley has taken in respect of this matter.
Rent and expenses for 8 Dawson Avenue South Plympton property
This claim relates to the Dawson Avenue property. Grantley contends that Vivienne owes the estate $3,736 in relation to the property.
Under clause 4.2 of the will the deceased devised the Dawson Avenue property to Vivienne.[74]
[74] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at exhibit ‘JCD1’.
Grantley has pointed to the fact that the Dawson Avenue property was rented out and rental income was derived from that property after the death of the deceased. The devisee of specific real estate is entitled to all of the income which may accrue upon it after the testator’s death. This principle was recently re-stated by this Court in Tschirn v Australian Executor Trustees Limited.[75] The authorities supporting the principle are discussed at length by the New South Wales Supreme Court in O’Brien v McCormick.[76]
[75] [2016] SASC 149 at [33]-[38]
[76] [2005] NSWSC 619 at [38].
Grantley submits that if the rental monies rightfully belonged to Vivienne, his position would be that expenses for the maintenance of the property ought to have been paid by her, and should not have been borne by the estate.
There are two answers to this submission.
The first is that executors are entitled to have recourse to whatever monies come first to hand in the administration of the estate in paying expenses and discharging liabilities relating to assets of the deceased. If they have done so in a manner which is different to the common law order of application of assets to meet liabilities then, as between beneficiaries, the executors remedy this by making the necessary adjustments later. This is the principle of marshalling of assets as between beneficiaries.
The authorities are clear that the order of application of assets affects only the rights inter se between beneficiaries, and does not affect the power of the executor to pay the deceased’s debts, and funeral and testamentary expenses out of any assets which come to hand to the executor, or affect the entitlement of a creditor of a deceased’s estate to obtain payment of the debt from any asset of the deceased. The principle has been expressly established in jurisdictions where the order of application of assets has been placed on a statutory footing, for example, in the UK since 1926.[77] That approach has been followed in Australia.[78] The position is the same in South Australia where the matter is regulated by the common law. The law on the point was originally expounded before the statutory provisions were enacted in other jurisdictions.[79] There is no doubt about the common law position which continues to apply in South Australia.
[77] In re Tong; Hilton v Bradbury [1931] 1 Ch 202 at 212; Re Cohen deceased [1960] 1 Ch 179 at 188.
[78] Joyce v Cam [2004] NSWSC 621 at [48]-[54].
[79] See, e.g., Allhusen v Whittell (1867) LR 4 Eq 295 at 302.
The executors have done nothing wrong in paying expenses relating to the Dawson Avenue property from any of the funds available to them during the course of the administration of the estate of the deceased.
The second answer is that the executors have engaged in the marshalling of assets exercise required of them to make the necessary adjustments between Vivienne, as the specific devisee of the Dawson Avenue property, and the residuary beneficiaries. The end result of that exercise is that Vivienne, as the specific devisee of the Dawson Avenue property, bears the burden of the expenses incurred in relation to that property since the death of the deceased.
This exercise was carried out in 2019 by the chartered accountant Mr Camens who was engaged by the executors’ solicitors.[80] The executors confirm that when the final distribution is made the adjustments identified by Mr Camens will be brought to account.
[80] Eighth affidavit of Shona Hoskins sworn 16 April 2020 (FDN 74) at [3]-[5] and exhibit ‘SH2’.
In addition, there is a further reason why Grantley is not entitled to agitate this claim.
The claims in relation to rent and expenses relating to the Dawson Avenue property relate to events in the years shortly after the death of the deceased in January 2007. Under the terms of compromise entered into between Grantley and the executors, Vivienne and Geoffrey, on 15 July 2014 and made a rule of Court in this action, Grantley released the executors from the claims he now says he wants to bring.[81]
[81] Annexure to the Order for Provision Out of the Estate dated 15 July 2014 (FDN 37) at clauses 11 and 13.
Therefore no question of injustice to Grantley can arise if a barring order is made under s 29(2) of the Trustee Act 1936 in relation to this claim. It is not a claim that Grantley could have made against the executors in any event.
Claim in relation to the exercise of the option to purchase the Anzac Highway property
Grantley alleges that the option to purchase of the Anzac Highway property was not exercised in accordance with the terms of the option. This is not a new allegation. Grantley has taken this position since 2015 but he has not prosecuted a claim he instituted against the executors at that time despite knowing the full facts of the matter since at least then, and having a solicitor acting for him during most of that period. Grantley has been in a position at all times since then to pursue the claim if he wished to do so.
The terms of compromise entered into at the mediation in July 2014 and made a rule of the Court enabled Vivienne to exercise an option to purchase the Anzac Highway property at a value agreed between the parties or failing such agreement at a value set by a valuer.[82] Vivienne exercised the option[83] by letter sent to Grantley on 30 July 2014.[84] The contract for sale was entered into between Vivienne and the executors on 12 August 2015 after a valuation report had been obtained from an independent valuer in accordance with the procedure set out in the terms of compromise.[85]
[82] Third affidavit of James Cavalier Douglas sworn 1 February 2017 (FDN 55) at [15.5].
[83] Third affidavit of James Cavalier Douglas sworn 1 February 2017 (FDN 55) at [18]. See also affidavit of Shona Hoskins sworn 7 September 2015 (FDN 41) at [2] and exhibit ‘SH1’.
[84] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39) at [5] and exhibit ‘DJF5’.
[85] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at [34] and exhibit ‘JCD26’.
On 24 August 2015 Grantley applied in this action for an injunction to restrain the option from being exercised, and certain declaratory relief. He sought the following declarations:[86]
A declaration that the First Defendant did not exercise her option in accordance with clauses 2 and 3 of the Terms of Compromise forming Annexure A to the Order for Provision out of Estate dated 15 July 2014 (“the Terms of Compromise”).
A declaration that any purported exercise of her option by the First Defendant and/or any contract for the sale and purchase of the property between the First and Second Defendants to the First Defendant for the sum of $875,000.00 is null and void.
[86] Interlocutory application dated 24 August 2015 (FDN 38) at [4] and [6].
The basis upon which Grantley claimed that the option had not been validly exercised was set out at length in the supporting affidavit of his then solicitor Mr Fowler.[87]
[87] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39).
When the application came on for initial directions on 31 August 2015 the executors gave an undertaking to the Court not to complete settlement under the sale contract until after the next hearing date.[88] The injunction application was heard and subsequently refused on 29 September 2015. Grantley failed at the threshold of establishing that there was any serious issue to be tried concerning the validity of the exercise of the option. Having failed to secure the injunction, he then abandoned the seeking of declarations as to the validity of the exercise of the option. He failed to prosecute his interlocutory application seeking those declarations. Having instituted these claims for relief in relation to the sale of the Anzac Highway property he has elected, in effect, to abandon those claims, or at least not proceed with the claims. He now says that the executors ought to have placed the Anzac Highway property on the market for sale. Yet he sought that relief in 2015 but did not proceed with the claim. This is unsurprising. Under clause 4 of the terms of compromise made a rule of Court in this action the executors were to place the property on the market for sale only if the option was not exercised.[89] In fact it was.
[88] Paragraph A of the notations to the order of 31 August 2015 (FDN 45).
[89] Annexure to the Order for Provision Out of the Estate dated 15 July 2014 (FDN 37).

I am satisfied there is not a serious issue to be tried concerning the validity of the exercise of the option or any of the other points sought to be agitated in relation to this issue including the Herron Todd White valuation. The complaint in relation to that valuation merely forms part of Grantley’s allegation that the option was not validly exercised. The allegation formed part of the grounds relied upon by Grantley in his unsuccessful attempt to injunct the sale of the property in August 2015. As I have noted above the injunction was refused in September 2015.
There is no serious issue to be tried relating to the validity of the valuation or the entitlement of the executors to sell the Anzac Highway property to Vivienne at the price determined by the independent valuer appointed in accordance with the terms of compromise. Under the terms of compromise there was a mechanism for fixing the price at which the Anzac Highway property was to be sold by the executors to Vivienne if she exercised the option, which she did. The mechanism is set out in clause 3 of the terms of compromise:[90]
If Vivienne exercises her option she may do so at a value to be agreed between the parties and failing agreement the property shall be valued by a certified valuer as agreed by the parties and failing an agreement as to the valuer by the President (or his delegate) of the Australian Property Institute (SA Division).
[90] Annexure to the Order for Provision Out of the Estate dated 15 July 2014 (FDN 37).
Vivienne exercised the option on 30 July 2014.[91] On 14 August 2014 she sought to agree with Grantley a price of $745,000.[92] Grantley obtained his own valuation report, and did not agree the price proposed by Vivienne.[93]
[91] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39) at [5].
[92] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39) at [6].
[93] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at [6]-[7].
There being no agreement between Grantley and Vivienne about the option exercise price, the executors wrote to the API on 14 January 2015 seeking the appointment of a valuer.[94] API appointed a valuer, Mr Winter, on 28 January 2015.[95] The valuation dated 2 April 2015[96] was provided by Mr Winter on 20 May 2015 to the executors.[97] The valuation was $875,000. The valuation was undertaken as at the date of the report, namely 2 April 2015.[98]
[94] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at [10] and exhibit ‘JCD4’.
[95] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at [13] and exhibit ‘JCD7’.
[96] A copy of which is exhibit ‘DJF11’ to the third affidavit of Duncan James Fowler filed 24 August 2015 (FDN 39). See paragraph [12] of that affidavit.
[97] First affidavit of James Cavalier Douglas sworn 7 September 2015 (FDN 40) at [25].
[98] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39) at [13].
Grantley’s claim is that the Anzac Highway property was sold at undervalue because the valuation of Mr Winter could not be relied on. The primary submission which Grantley made at the time of the injunction application was that the valuation could not be relied upon given that the contract for sale and purchase on 12 August 2015 had been entered into more than 90 days after the date of the valuation (2 April 2015).[99] These matters were considered by the Court and rejected at the time of the injunction application. Grantley has chosen not to pursue those matters further since 29 September 2015.
[99] Third affidavit of Duncan James Fowler affirmed 24 August 2015 (FDN 39) at [14], [19].
In these circumstances the interests of justice do not require that Grantley be given a further opportunity to bring this claim.
Payment of health insurance premiums
Grantley contends that he should not be precluded from bringing a claim in respect of a payment that was made on behalf of Vivienne for health insurance premiums from the rent proceeds of the Dawson Street property. This claim was only raised during the course of oral submissions on this application.
The issue is that $3,605.40 was paid from estate funds in respect of Vivienne’s private health insurance premiums. These payments were made before the mediation in July 2014. These payments were the subject of the terms of compromise entered into at that mediation and made a rule of Court. There is no substance to this claim.
The Court should make the barring order
I am satisfied that it is just in all the circumstances to make an order barring absolutely the Notified Claims against the executors in the s 29(2) notice. As the Notified Claims of Grantley are absolutely barred, the executors will be able to proceed to a final distribution of the estate of the deceased to the three residuary beneficiaries, subject of course to resolution of the costs issues by the Court.[100] That will enable the administration of the estate of the deceased to be finalised.
[100] Second affidavit of Mark Peter Jappe affirmed 28 January 2020 (FDN 69) at [5]-[6].
The interests of justice overwhelmingly favour this outcome.
The application for advice and direction
The executors seek the advice and direction of the Court, or alternatively the determination of issues arising in the administration of the estate of the deceased, as to whether in determining Grantley’s one third interest in the residuary estate of the deceased the executors:[101]
… are justified in doing and should deduct from or set off against the entitlements of the plaintiff the amount of legal costs and disbursements that the executors have incurred from 10 August 2017 in responding to the questions raised by the plaintiff in relation to the accounts of the estate of the deceased and in relation to the administration of the estate as referred to in the affidavit of Vivienne Kathleen Carney sworn on 21 March 2019 and filed herein?
[101] Interlocutory application dated 29 January 2020 (FDN 68) at [2].
The relevance of the date of 10 August 2017 is that the costs mediation between the parties was concluded on 9 August 2017 and all issues of costs to that point were settled by the Heads of Agreement entered into by the parties on that date.[102]
[102] Affidavit of Vivienne Kathleen Carney sworn 21 March 2019 (FDN 61) at paragraphs [4]-[5] and exhibit ‘VKC1’.
Grantley opposes the Court giving advice and direction or, alternatively, determining the issue, sought by the executors. He contends that as a matter of principle the Court cannot give the advice and direction sought. He submits that there has been no finding that he is liable for these costs. He further contends that, in any event, the evidence does not justify giving that advice or direction.
I do not accept these submissions.
Vivienne’s affidavit[103] exhibits the voluminous correspondence that has passed between Grantley and the executors’ solicitors. I am satisfied that the executors have been burdened with a significant amount of work in dealing with repetitive requests for information by Grantley. He has unreasonably engaged in disputes with the executors about matters concerning the administration of the estate of the deceased, including continued disputes about facts and circumstances occurring in the administration of the estate before the settlement reached in July 2014 and embodied in the terms of compromise.
[103] Affidavit of Vivienne Kathleen Carney sworn 21 March 2019 (FDN 61) at paragraph [7] and exhibit ‘VKC2’.
These matters also have been deposed to by the executors’ solicitor Shona Hoskins.[104] Ms Hoskins has calculated the fees incurred by the executors to 4 February 2020 in responding to Grantley to be $47,134.27.[105] Further disbursements with a costs consultant and accountant’s fees are $988.93 and $4,950.00.[106]
[104] Seventh affidavit of Shona Hoskins sworn 4 February 2020 (FDN 71) at paragraphs [3] and [4] and [8] to [10].
[105] Seventh affidavit of Shona Hoskins sworn 4 February 2020 (FDN 71) at paragraph [5].
[106] Seventh affidavit of Shona Hoskins sworn 4 February 2020 (FDN 71) at paragraph [7].
As is apparent from the above, many of Grantley’s foreshadowed claims deal either with matters resolved by the releases contained in the terms of compromise or with the events of 2015 relating to the sale of the Anzac Highway property where Grantley has elected not to pursue further the claims which he instituted in his interlocutory application of August 2015. The executors have incurred significant legal costs, which would not otherwise have been incurred, in having to respond to Grantley’s continued disputation since 10 August 2017. These requests have included unreasonable and repeated requests for information previously supplied.
The issue is how the burden of those costs should be borne as between the three residuary beneficiaries.
If no order is made by the Court then the burden will fall equally on the three residuary beneficiaries Vivienne, Geoffrey and Grantley. As I have found, Grantley has made many unreasonable requests and demands of the executors. As a result the executors have incurred costs which otherwise would not have been incurred in responding to these requests and demands. In these circumstances it is open to the Court to direct that the burden of the costs incurred by the executor should be borne out of Grantley’s share of the residuary estate alone.
I do not accept that there is any principled objection to the Court giving such direction and advice.
In Gray v Guardian Trust Australia Ltd[107] Austin J said that a beneficiary has a right to see trust documents.[108] Trustees are obliged to keep beneficiaries reasonably informed. The requirement to keep a beneficiary reasonably informed imports a limitation that a trustee’s obligation does not extend to answering every question a beneficiary raises where those questions exceed the permissible volume and frequency of a beneficiary’s demands for information. This is because the principal task of a trustee is to administer the trust estate for the benefit of the beneficiaries as a whole, rather than to respond to voluminous and lengthy queries from a particular beneficiary.[109] If a beneficiary wants the executor to go to special trouble to produce information, the executor is not bound to do so unless the beneficiary meets the reasonable costs incurred.[110]
[107] [2003] NSWSC 704.
[108] [2003] NSWSC 704 at [34].
[109] [2003] NSWSC 704 at [39].
[110] Williams v Stephens (Supreme Court of NSW, Young J, unreported judgment delivered 24 March 1986).
I do not accept that the executors have failed to keep the proper accounts and records which they are obliged to keep as executors of the estate of the deceased.[111] I reject any suggestion that the executors have not provided Grantley, as a residuary beneficiary, with copies of accounts and supporting documentation. The contrary is the position. Grantley has made requests of the executors to provide an enormous amount of information on a repetitive basis and they have done so.
[111] In Dal Pont & Mackie ‘Law of Succession’ (2^nd edition, 2017) at [12.30] it is said that: ‘Courts commonly refer to the duty in terms of keeping ‘proper’ accounts and records. What ‘proper’ entails in this context are accounts that are unambiguous, clear and distinct so as to prove accurate information to the beneficiaries sufficient to inform them (and the court, if necessary) as to the state of administration, including the asset and liability position and the inflow and outflow of funds. Receipts, vouchers or other documentation must support each transaction.’
However the right of a beneficiary to obtain information and documents is not necessarily at the expense of the residuary estate generally. The burden of the expenses incurred by the estate due to the unreasonable conduct of Grantley should be borne by him exclusively rather than by each of the beneficiaries equally. However, identifying the quantum of those expenses unreasonably incurred is not easy. The evidence before the Court does not permit a precise calculation. The executors submit that I should wield a broad axe on a conservative basis. Grantley submits that the evidence does not permit me to make an order in any amount. I do not accept Grantley’s submission. I am satisfied that the approach urged by the executors should be adopted. While I am not in a position to arrive at a precise sum representing the costs unreasonably incurred as a result of Grantley’s conduct, I am satisfied I should proceed in a way that achieves a just outcome consistent with the available evidence within the limitations necessarily imposed by swinging the broad axe.
I am satisfied that it would be just to direct that the executors are justified in making an adjustment in the distribution of the estate to reflect Grantley’s liability for costs unreasonably incurred by the estate in an amount of half the fees incurred by the executors to 4 February 2020 in responding to Grantley, namely, an amount of $23,567.13.[112]
[112] Being 50 per cent of $47,134.27.
I am further satisfied that the executors should proceed to distribute the residuary estate and I direct accordingly.
Conclusion
I am satisfied that the executors are entitled to the barring order they seek. The administration of the estate has been inordinately delayed. That delay has been substantially caused by Grantley. His conduct has also unreasonably occasioned cost and expense to the estate. The other beneficiaries should not suffer as a result. The executors should now proceed to distribute the estate subject to any order as to the costs of this application. Accordingly, I would give the advice and direction sought by the executors.
I will hear the parties as to the costs of this application.
I would direct the solicitors for the executors to bring into Court minutes of order that reflect these reasons.