Hamilton v Roche

Supreme Court of South Australia
(Civil)
HAMILTON v ROCHE & ANOR
[2022] SASC 103
Judgment of the Honourable Auxiliary Justice Bochner
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
Corporations Act 2001 (Cth); Probate and Administration Act 1898; Real Property Act 1900, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; In the Estate of Just (No 2) (1974) 7 SASR 515; Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607, considered.

HAMILTON v ROCHE & ANOR
[2022] SASC 103

On 8 December 2021, the applicant commenced this action, in which she seeks various orders relating to the ongoing administration of her father’s estate. The applicant and the first respondent are the executors and trustees of the estate. I will refer to the first respondent as the respondent. The second respondent is the residuary beneficiary under the deceased’s will. I will refer to the second respondent as the residuary beneficiary. The action has been discontinued against the third respondent.
The residuary beneficiary is a trustee company. Its directors are the applicant and the respondent. Each of the applicant, the respondent and the estate holds one third of the residuary beneficiary’s shares.
Brief background
The deceased died on 24 April 2010. He had three daughters, the applicant and respondent, and a third daughter whom I will refer to as SR. On 6 August 2010, SR lodged a caveat in the Probate Registry in respect of the deceased’s will. The caveat lapsed, and on 22 August 2011, the applicant and the respondent obtained a grant of probate in common form. Between the issue of the grant of probate and 20 October 2011, a substantial part of the estate was administered. On 20 October 2011, SR commenced an action in this Court, seeking a revocation of the grant of probate and a grant in solemn form in respect of an earlier will. The applicant and respondent were the defendants to this action, in their capacity as executors, and counterclaimed, seeking a grant in solemn form of the will in respect of which a common form grant had been obtained on 22 August 2011. SR also commenced an action for further provision from the estate. This action was stayed pending the outcome of the revocation proceeding.
On 27 June 2013, the solicitor who was acting for the executors in the administration of the estate provided to the applicant and respondent a bundle of documents relating to the estate which he called the “Bible of Estate Documents”.[1] These documents set out the dealings with the estate assets to that time, and the issues outstanding in respect of the administration of the estate. It appears that all of the assets of the estate, except for the deceased’s interest in a property in Woollahra in Sydney and his shares in the residuary beneficiary had been distributed and all of the debts owed to the estate had been assigned. I will refers to these remaining assets as the Woollahra property and the shares. The “Bible” does not appear to address estate liabilities.
[1] FDN 2, DAH 15.
SR’s action went to trial, and on 2 February 2017, judgment was given in favour of the defendants. SR filed an appeal; the parties then negotiated a settlement, which resulted in finalisation of the action in 2018. From the commencement of SR’s action on 20 October 2011 and its final resolution in 2018, the administration of the estate was suspended.
On 4 March 2020, Mr O’Halloran, of HWL Ebsworth who was acting (and still acts) for the applicant and the first respondent in their capacity as executors, sent an email to the applicant, in which he raised a difficulty with the transfer of the shares.[2] This difficulty arose from the fact that the transfer of the shares to the residuary beneficiary, as required in the will, would result in the residuary beneficiary’s acquiring shares in itself, which is prohibited by the Corporations Act 2001. Mr O’Halloran proposed a solution to this problem, with details of the steps which would be required to implement this solution. He sought the applicant’s instructions in respect of this solution noting that the respondent had already agreed to it and had signed the first of a series of documents required to implement the solution.
[2] Ibid, DAH 2.
On 16 June 2020, Mr O’Halloran wrote to the applicant again.[3] He sought her instructions in respect of the issue with the transfer of the shares, and confirmed that the shares and the transfer of the Woollahra property were the final matters to be resolved in respect of the administration of the estate. In respect of the Woollahra property, he reminded the applicant that there were two outstanding issues. The first was that the transfer may be liable to a foreign resident stamp duty surcharge, and that, on an ongoing basis, the property would be subject to a land tax surcharge, unless the trust deed of the residuary beneficiary was amended to exclude any foreign person or entity. He noted, however, that such an amendment to the trust deed may have broader consequences. He sought instructions as to whether the applicant required further advice on any consequences of an amendment to the trust deed. Mr O’Halloran sent an email in similar, although not identical terms, to the respondent on the same day.[4]
[3] Ibid, DAH 9.
[4] Ibid, DAH 10.
I do not intend to traverse the email correspondence between the parties and Mr O’Halloran on these two issues over the ensuing months. Suffice to say that they quickly reached a deadlock over what should occur both in respect of the shares and the transfer of the Woollahra property. It appears that the applicant’s last email in respect of both issues was sent on 7 August 2020.
On 7 October 2020, the respondent wrote to the applicant, confirming her position in respect of each. She also noted that there was the issue of a debt owed to the estate by SR, arising out of SR’s action, and a significant debt owed by the estate to the residuary beneficiary.[5]
[5] FDN 20, DAH 58.
This appears to be the last correspondence between the parties prior to the commencement of this action. I say “appears” because the affidavit material that has been filed to date is so voluminous and repetitive that I have had difficulty satisfying myself that there was no correspondence between the parties after 7 October 2020 and before 8 December 2021. I note that it is the respondent’s contention that this is the case.[6]
[6] FDN 23, [12(m)] – [12(n)].
This action
In this action, the applicant seeks the following:
1. A declaration that the Estate of John Justin Roche (Deceased) has been administered.
2. A declaration that the shares held by the Deceased in the Second Respondent (Shares), are held by the Applicant and the First Respondent as joint trustees for and on behalf of the JJR Investment Trust (of which the Second Respondent is trustee), as the residuary beneficiary of the Estate.
3. A declaration that the title to Unit 4 (known as Unit 3), 9-11 Rosemont Avenue, Woollahra 2025, New South Wales (Title), is held by the Applicant and the First Respondent as joint trustees for and on behalf of the JJR Investment Trust (of which the Second Respondent is trustee), as the residuary beneficiary of the Estate.
4. An order that Shares be transferred forthwith by the Applicant and First Respondent from the name of the Deceased to the Second Respondent, in its capacity as trustee of the JJR Investment Trust.
5. An order that Title be transferred forthwith by the Applicant and First Respondent from the name of the Deceased to the Second Respondent, in its capacity as trustee of the JJR Investment Trust.
6. A permanent injunction restraining the First Respondent, her agents, employees or otherwise from exercising any voting or other rights or entitlements of the Shares in respect of the appointment of a director or directors of the Second Respondent.
7. Any order as to costs as to this Honourable Court seems fit, including an order that the Applicant’s costs of this Application be paid out of the JJR Investment Trust on an indemnity basis.
8. An order that the First Respondent indemnify the JJR Investment Trust in relation to the costs of the Application.
9.Such further or other order as this Honourable Court seems fit.
As I have said, the affidavit material that has been filed by the applicant and the respondent has been voluminous. Some of it has been irrelevant; much of it was repetitive. It has been filed against a background of what appears to be a complete breakdown in the relationship between the applicant and the respondent, which is being played out in a number of acrimoniously fought actions in this Court. Each makes numerous allegations against the other, particularly in regard to the question of delay. I do not intend to deal with these allegations, unless they are relevant to the issues before me.
The filing of the originating application generated a large amount of correspondence between the parties, which has been exhibited to the various affidavits tendered. Again, I do not intend to refer to this correspondence unless it is relevant to the questions that I must decide.
The principles to be applied in an application for summary dismissal or summary judgment
The applicant says that summary judgment pursuant to UCR 144.2 is not open to the respondent as this rule applies only to matters commenced by claim, rather than those commenced by originating application. There was no dispute between the parties as to the principles to be applied in the application of UCR 143.1 and 143.2.
Each relies on the decision of Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[7] where he said:
[7] (2020) 137 SASR 117.
The grounds upon which the Court may strike out a pleading under UCR 70.3, or summarily dismiss an action under UCR 143 are expressed in similar terms. The grounds for each encompass both (a) a claim, pleading or action that is frivolous, vexatious or an abuse of process and (b) the failure or inability to disclose a reasonable cause of action.
The courts have generally eschewed any attempt to define frivolous and vexatious. While the concepts overlap to some extent, and are sometimes treated as a single compendious concept, the former invites a focus upon whether the claim or issue is worthy of serious attention, whereas the latter invites a focus upon whether the claim or issue is being pursued for the purposes of harassing or vexing the other party.
Abuse of process is a broad concept. It may take a number of different forms, but is usually associated with some improper or collateral purpose. Relevantly in the present context, it will be informed by the overarching obligations of the parties and their lawyers under UCR 3.1, and extend to the pursuit of a claim which does not have a proper basis in light of that rule. The claim might lack a proper basis because it is based upon an assertion for which there is no basis in the material available to the party, which misstates the material upon which it is based, or which extends beyond any assertion for which that material might provide a basis.
As to this last matter, I refer to my earlier articulation (at [26]-[28] above) of the distinction between a pleaded case which is based upon a general inference with a proper foundation, and a pleaded case that involves impermissible fishing or trawling for a case. The latter may be seen as either a species of abuse of process, or the absence of a reasonable basis for the pleaded case.
It has been suggested that abuse of process in this context may include the pursuit of a pleading that does not disclose a reasonable cause of action. However, I consider it unnecessary to dwell on whether abuse of process extends this far given that the failure or inability to disclose a reasonable cause of action is itself a basis for striking out a pleading or summarily dismissing an action.
While the criteria for the exercise of the Court’s power to strike out and summarily dismiss are expressed in similar terms, the difference between the two mechanisms for challenging an applicant’s claim lies in the nature and focus of the challenge. The power to strike out under UCR 70.3 is directed to the applicant’s “Claim or pleading” (with the former defined as the document by which an action is commenced), whereas the power to dismiss is directed to the applicant’s “action” (which is defined to mean a claim in the sense of a proceeding in which the applicant claims a remedy for a cause of action). The focus of the former is thus upon the articulation of the applicant’s case in the relevant document, usually a pleading. And the focus of the latter is upon the applicant’s case itself.
The difference in focus between the two has implications for the use that may be made of evidence in the determination of the applications. In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.
In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process. That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.
While I have attempted to summarise what I see as the key features of, and differences between, summary judgment, summary dismissal and strike out applications, I accept that in practice the distinctions are often difficult to draw and observe, and there is, quite appropriately, scope for overlap and flexibility in their operation.[8]
(citations omitted)
[8] Ibid, [61] – [70].
I am of the view that it is not open to the respondent to bring an application for summary judgment in respect of the applicant’s claim. UCR 144.2 provides:
144.2—Summary judgment
(1) The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)     on a claim if there is no reasonable basis for defending the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2) The Court may, on application by a party, give summary judgment against an applicant—
(a)     on a claim if there is no reasonable basis for prosecuting the claim;
(b)     on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)     on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
(3) An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
The rule uses the term “claim” exclusively throughout. The UCR clearly define the words, “claim”, “Claim”, “action”,[9] and “proceeding”.[10] The words, “action” and “proceeding” are defined to include matters commenced both by originating application and claim. It is clear both from these definitions and from the definitions of “claim” and “Claim” that the intention is to make a differentiation between matters commenced by originating application and those commenced by way of claim. Thus, it can only be the case, that where a rule uses the word “claim”, as UCR 144.2 does, this was used advisedly; if the intention had been to allow the application of the rule to matters commenced by originating application as well as by claim, the rule would have used either the word “action” or the word “proceeding”. It is not open to the respondent to seek summary judgment in respect of the applicant’s action as it was commenced by way of originating application rather than claim. I will consider only the application for summary dismissal.
[9]    Defined in rule 2.1 as “any one of a claim, cross claim or originating application”.
[10] Defined in rule 2.1 as:
“a proceeding other than an excluded proceeding, and includes—
(a)    a cross claim as well as a claim;
(b)    an originating application;
(c)     a proceeding seeking review of an administrative decision notwithstanding that it may be called an “appeal” by a statute; and
(d)    where the context requires—an appellate proceeding”.
I will deal first with the issue of the injunction and the transfer of the shares.
The injunction and the transfer of the shares
On 4 November 2021, the applicant received an email from the respondent, in which the respondent proposed the appointment of three additional directors to the board of the residuary beneficiary and another company not involved in this action.[11] I will not deal with this second company further. The current directors of the residuary beneficiary are the applicant and the respondent. The applicant characterised this proposal as an attempt by the respondent to “seize control of the board” of the residuary beneficiary.[12]
[11] FDN 8, [16].
[12] Ibid, [18].
On 9 November 2021, the respondent, in her capacity as a shareholder of the residuary beneficiary, requested its directors to call a general meeting of members to consider the appointment of additional directors. She scheduled a directors’ meeting for 16 November 2021 to consider this request.[13] The applicant responded to this request on 11 November 2021, advising that she did not agree to the calling of a directors’ meeting, nor would she support the appointment of additional directors. She set out in some detail the reasons for her opposition to the appointment of further directors generally, and specific objections relating to the individuals proposed by the respondent. She refused to attend the directors’ meeting that the respondent had scheduled for 16 November 2021.[14]
[13] Ibid, [30].
[14] Ibid, [34].

Further correspondence passed between the applicant and the respondent. The respondent proposed that a meeting of members of the residuary beneficiary be held on 23 December 2021 to consider the appointment of additional directors.[15] This was later amended to 24 December 2021.[16]
[15] Ibid, [40].
[16] Ibid, [42].
The applicant formed the view that the meeting had not been validly called because she received less than the required notice of the meeting. She says that she was concerned, however, that the respondent would hold the meeting anyway.[17] She also expressed concern that the respondent, as one of the executors of the estate, would seek to vote the shares which were still held by the estate.[18] She says that she feared that, even if she did not attend the meeting, the respondent would appoint a proxy to attend on her (the respondent’s) behalf, the respondent would attend on behalf of the estate, and so a quorum would be achieved. This would also allow the respondent to control two thirds of the votes.[19] As a result, the applicant sought an injunction to prevent the respondent from exercising any voting rights on behalf of the estate. The application for the injunction was filed on 9 December 2021, after the applicant had sought, and the respondent had failed to give an undertaking in respect of voting the shares.
[17] Ibid, [48] – [49].
[18] Ibid, [58].
[19] Ibid, [66].
The application for the injunction came on for hearing on 14 December 2021. No substantive orders were made on that day and it was adjourned to 23 December 2021. On 23 December 2021, the applicant and the respondent gave mutual undertakings in respect of dealing with the shares. On 14 January 2022, the applicant instructed Mr O’Halloran to proceed with the implementation of the solution that he had proposed in respect of the shares in March 2020. The issue with the shares has now resolved on that basis.[20] As a result, the declaration in respect of the shares, and the orders sought in paragraphs 2 and 4 of the originating application are no longer required.
[20] FDN 30, [20].
The only outstanding issue in respect of these matters is the question of costs.
The declaration in respect of the administration of the estate
Much of the affidavit material that was filed in this action dealt with the question of who was responsible for the delay in the finalisation of the administration of the estate. I do not intend to address this issue. It is irrelevant to the question of whether the application for a declaration to the effect that the estate has been fully administered should be summarily dismissed.
The respondent says that the proposition that the estate has been fully administered as a result of which the applicant and respondent are now trustees rather than executors is untenable. Putting aside the question of whether the Woollahra property is now being held by the applicant and respondent as trustees, the respondent says that the applicant has not addressed, at any time, the question of whether the estate’s liabilities have been paid in full. The applicant herself has raised the issue of an outstanding debt owed to the estate by SR, and the respondent has raised the issue of a significant debt owed by the estate to the residuary beneficiary. Further, no evidence has been provided about the payment of legal fees, accounting fees and the preparation of income tax returns for the estate. It can be concluded that these things remain outstanding, and therefore there is no basis for the making of the declaration. This paragraph of the originating application should be summarily dismissed.
The applicant says that the administration of the estate was finalised by 27 June 2013. The outstanding issue concerning the Woollahra property is a matter for the final distribution of the legal interest in the property; this is not an executorial function.
The applicant says that the point at which an executor becomes a trustee is a question of fact which can be difficult to determine and will depend on the circumstances of each case. She says that the fact that the residuary beneficiary has been treated as the owner of the Woollahra property since about September 2011 amounts to assent by the executors that the administration of this asset is complete. She says, at the very least, there is a real question to be tried as to whether the estate has been fully administered.
In response to the applicant’s submission in respect of assent, the respondent says that application of the principle of assent to real property has been expressly removed by legislation in New South Wales, the law which is applicable because that is where the property is situated.
In my view, the paragraph of the originating application seeking a declaration that the estate has been fully administered must be summarily dismissed. It is arguable that there are outstanding debts owed both to and by the estate. SR owes money to the estate in respect of the costs order made against her in her action. The respondent says that the estate owes a significant debt to the residuary beneficiary, in respect of the legal fees incurred in the course of SR’s action and in respect of the ongoing payment of costs in respect of the Woollahra property. While there appears to be some dispute about this, this dispute in itself must lead to the conclusion that the estate has not been fully administered: until the executors are satisfied that all outstanding liabilities have been paid, the estate cannot be regarded as having been fully administered. Further, the question of outstanding legal and accountants’ fees has not been addressed, nor has the question of any outstanding tax liability. Putting aside these questions, however, it is clear on the applicant’s own evidence that there are outstanding debts that have not been dealt with.
I note that, in argument, Mr Williams on behalf of the applicant asked rhetorically, how was his client to prove a negative, that is, that there are no outstanding liabilities. An affidavit from Mr O’Halloran as to this question would, I suggest, suffice. In the absence of any such affidavit, I must conclude that some liabilities remain.
In any event, my conclusion in respect of the declaration relating to the Woollahra property makes it clear that the estate administration is not complete.
The declaration and order in respect of the Woollahra property
The respondent objects to the making of a declaration in the terms sought by the applicant on the basis that such a declaration is impossible, because the declaration relates to the entirety of the property, without having regard to the fact that the estate owns the property with Serves Pty Ltd as tenants in common in equal shares. I do not consider that this objection has merit; while, of course, it is factually correct, the declaration could easily be amended to reflect the estate’s shared ownership of the property. Nor can it be suggested that it is anything more than a drafting error on the part of the applicant, who is clearly aware of the interest of Serves Pty Ltd in the property. The respondent makes a similar objection in respect of the order for the transfer of the Woollahra property. I reach the same conclusion in respect of this objection. I will treat the declaration and order sought by the applicant to relate only to that portion of the Woollahra property in which the estate has an interest.
There is a clear conflict between the applicant and respondent as to whether the applicant and the respondent hold the estate’s share of the Woollahra property as trustees or as executors. The difficulty in determining when this transformation occurs was referred to by Jacobs J in In the Estate of Just (No 2)[21] in the following way:
When persons are appointed by a testator to be his executors and trustees, the courts (and academic writers) have long been vexed by the problem of determining when they assume the mantle of trustees. Kekewich J. thought there were few things more difficult to determine (In re Timmis; Nixon v. Smith; In re Mackay; Mackay v. Gould. The oft-quoted statement, that the late Sir John Wickens is reputed to have been in the habit of telling his pupils that the transition invariably took place in the dead hours of the night, merely heightens the mystery. The question is, which night?
I do not propose to review all the cases that were cited to me, or which I have since read. Many of them concern the situation which arises when the court is asked to appoint an administrator de bonis non, with or without the will annexed, or to appoint a new trustee. Some of them depend upon express statutory provisions, e.g. In the Estate of Dunn, deceased. The following statements of general principle may be extracted from the cases, but the applicability of the principles may well depend upon the circumstances in which the question arises. An executor who has completed his executorial duties becomes a trustee (In re Timmis; Nixon v. Smith; Attenborough v. Solomon; In re Ponder; Ponder v. Ponder). His principal duties as executor are to pay the funeral and testamentary expenses and debts of the deceased, and to “clear the estate”. The duty of clearing the estate consists of paying pecuniary legacies and handing over the assets specifically bequeathed to the specific legatees, who are sui juris. Having done that, the estate may be regarded as cleared, notwithstanding the fact that there may be legacies given to infants and which cannot immediately be paid (In re Smith). The offices of executor and trustee are not necessarily mutually exclusive, in the sense that an executor who becomes a trustee thereby ceases to be an executor (Harvell v. Foster, and see the note on that case in the Law Quarterly Review Vol. 73 (1957), page 450). Indeed, it has been said of an executor that the office clings to him for the rest of his life. For example, he continues to be an executor for the purposes of suing for any new assets that may fall in, or of being sued as executor in respect of a claim which may have matured against the estate after he thought that his executorial duties were completed (In the Will of Henry Clinton), and new trustees have sometimes been appointed before the mortgage debts of the testator have been paid (Martin v. Martin). I refer also to Commissioners of Inland Revenue v. Smith, where it was held that there was no rule of law that the mere existence of an outstanding mortgage prevented the residue from being ascertained.[22]
(citations omitted)
[21] (1974) 7 SASR 515.
[22] Ibid, 523 – 524.
Such a difficulty does not arise in this case, however, because, as the respondent pointed out in her reply submissions, the principle of assent does not apply to real property in New South Wales, as a result of the operation of s 46E of the Probate and Administration Act 1898, which provides:
46E MODE OF DIVESTING LAND FROM AN EXECUTOR OR ADMINISTRATOR
(1)
(a) Real estate vested in an executor or administrator shall not be divested from the executor or administrator and vested in another person who may be entitled thereto either beneficially or as a trustee, or an executor or administrator, otherwise than by a registered conveyance, or by an acknowledgment operating under section 83, or by registration under the provisions of the Real Property Act 1900 .
(b) This subsection extends to real estate vested in an executor or administrator at the commencement of the Conveyancing (Amendment) Act 1930 or thereafter becoming so vested.
In Consolidated Development Pty Ltd v Holt,[23] Young J referred to this provision in the context of considering the common law position in respect of assent and real property, and said:
By the Wills Probate and Administration Act 1898, s 46E, the legislature has altered the common law so that instead of an assent, formal or informal, there must be registration under the provisions of the Real Property Act. The evidence clearly shows that there has been no such registration of the defendants or anybody else and that the title still remains in the name of the deceased.[24]
[23] (1986) 6 NSWLR 607.
[24] Ibid, 615.
He concluded that in the circumstances it was impossible to infer that the executor’s executorial duties were complete.
It seems to me, therefore, that the respondent is entitled to summary dismissal of the application for a declaration in respect of the Woollahra property. As assent has no operation with respect to real property in New South Wales, and there has been no registered conveyance, or registration pursuant to s 83 of the Probate and Administration Act, or registration under the provisions of the Real Property Act 1900, the property remains vested in the applicant and respondent as executors not trustees.
I do not intend to canvass the arguments made by the parties in respect of the application for summary dismissal of the application for the order for the transfer of the Woollahra property. Suffice to say, the applicant wants the property to be transferred to the residuary beneficiary regardless of the likely land tax consequences. The respondent does not want the property to be transferred until the land tax consequences have been fully investigated and ameliorated if possible. They are clearly deadlocked on this question and have been so deadlocked for many months. It is clear that a court will need to resolve this question.
It is arguable that it would have been more appropriate to have addressed this question by way of an application for advice and directions or by way of the dispute resolution process set out in the will. Given the clear deadlock, however, I do not consider that it would be appropriate summarily to dismiss this question. There is clearly an issue to be tried between the parties.
In summary, therefore, I conclude that:
·Paragraphs 1 and 3 of the originating application are summarily dismissed.
·Paragraphs 2, 4 and 6 of the originating application are dismissed as the issues were resolved between the parties.
I will hear the parties on the appropriate way to timetable paragraph 5 of the originating application to a hearing. I will hear the parties on the question of costs.

[2022] SASC 103

19 September 2022