In the Estate of SPIROS VLAHIOTIS (DECEASED) - [2019] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of SPIROS VLAHIOTIS (DECEASED)
[2019] SASC 207
Judgment of The Honourable Justice Stanley
5 December 2019
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS
This is an application to make orders pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) due to allegations that the conduct of an executor has caused the due and proper administration of the estate to be frustrated.
Spiros Vlahiotis (the deceased) died on 19 October 2017. At the date of his death the deceased owned a house property at Glynde with an estimated value of between $520,000 and $700,000; a deposit of $9,766.00 in a NAB bank account; furniture and effects and a Suzuki motor vehicle S763 AOV.
The deceased was survived by his children, the applicant Alexandra Moschou, and the defendant Danny Vlahiotis.
Pursuant to the deceased’s will, both the applicant and the defendant were appointed executors and trustees and, after the payment of debts, funeral and testamentary expenses, given the residue of the estate as tenants in common in equal shares.
Held:
1. The due and proper administration of the deceased’s estate is in jeopardy as a result of the breakdown in the relationship between the applicant and defendant.
2. The grant of probate made on 28 February 2018 in relation to the estate of the deceased to the applicant, Alexandra Moschou is revoked.
3. The grant of probate made on 9 December 2018 in relation to the estate of the deceased to the defendant, Danny Vlahiotis is revoked.
4. Letters of administration with the will dated 3 February 2014 annexed of the estate of the deceased is granted to Alfio Macolino of 99 Frome Street, Adelaide in the State of South Australia.
Administration and Provate Act 1919 (SA) s 69, referred to.
Callaway v Callaway [2019] NSWSC 1275; Byrnes v Kendle (2011) 243 CLR 253, applied.
Johnson v Trotter [2006] NSWSC 67, discussed.
Bates v Messner (1967) 67 SR (NSW) 187; In the Estate of Wilkinson [2018] SASC 200; Executor Trustee Australia v McDougall (2011) 110 SASR 462 at 468; Miller v Cameron (1936) 54 CLR 572; Mavrideros v Mack (1998) 45 NSWLR 80; In the Estate of Crane (2005) 93 SASR 198; Woodley v Woodley (No. 2) [2017] WASC 94, considered.

In the Estate of SPIROS VLAHIOTIS (DECEASED)
[2019] SASC 207
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application by an executor against another executor to revoke a grant of probate or to make orders pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) due to allegations that the conduct of that executor has caused the due and proper administration of the estate to be frustrated.
During the course of the hearing the applicant amended the relief she sought so as to confine the orders she seeks to an application for advice and direction pursuant to s 69 of the Act.
The estate and the will
Spiros Vlahiotis (the deceased) died on 19 October 2017. At the date of his death the deceased owned a house property at Glynde with an estimated value of between $520,000[1] and $700,000[2]; a deposit of $9,766.00[3] in a NAB bank account; furniture and effects and a Suzuki motor vehicle S763 AOV.
[1]    Statement of assets and liabilities, Exhibit A1.
[2]    Exhibit R10.
[3]    There is conflicting evidence. The statement of assets and liabilities states the account contained $8,058.14. However, the defendant gave evidence that he has withdrawn $9,766.00 from the account.
The deceased was survived by his children, the applicant Alexandra Moschou, and the defendant Danny Vlahiotis.
Pursuant to the deceased’s will, both the applicant and the defendant were appointed executors and trustees and, after the payment of debts, funeral and testamentary expenses, given the residue of the estate as tenants in common in equal shares.
The administration of the estate
The defendant commenced living at the Glynde property before the death of the deceased. The defendant gave evidence that he did so at the deceased’s request. Following the deceased’s death the defendant continued to reside with his family at the Glynde property until at least April 2019. He did not pay any rent. He denies that he must account to the estate for payment of occupation rent for the period he resided in the property after the death of the deceased.
The defendant became a signatory to the deceased’s bank account. He withdrew all the money from that account. The purpose of those withdrawals is a matter of dispute. The applicant alleges that the defendant appropriated the sum of $9,766.53. The defendant denies this. He contends that the majority of the moneys withdrawn were used to meet the deceased’s needs and debts.
On 28 February 2018 probate was granted to the applicant with leave reserved to the defendant.
On 21 March 2018 the Glynde property was transmitted into the name of the applicant as executor, noting leave being reserved.
On 5 October 2018 the applicant made an application to this Court for advice and direction pursuant to s 69 of the Act.
On 9 December 2018 a grant of double probate was made to the defendant. In support of that grant he swore an affidavit on 6 June 2018 deposing that the furniture and effects forming part of the deceased’s estate was valued at $5,000 and that the motor vehicle was worth $5,000.
On 21 February 2019 this Court made consent orders providing the defendant with an opportunity to obtain finance to pay the applicant an agreed sum for her interest in the estate within 28 days so the defendant could retain the property as part of his share of the estate, and in the event that he was unable to obtain finance self-executing orders requiring him to vacate the property by 20 May 2019 and orders to facilitate the sale of the property. The Glynde property was to be sold by an agent appointed by the president of the Real Estate Institute.
The defendant failed to obtain finance.
There is an issue as to whether the defendant complied with the terms of those orders in relation to the sale of the property. There is a further issue as to when he vacated the Glynde property. He asserts that he vacated the property on the “ANZAC weekend” 2019.[4] The applicant contends that he continued to occupy the Glynde property until at least 22 May 2019.
[4] ANZAC day fell on a Thursday in 2019.
The defendant did not meet the agent appointed pursuant to the consent orders until 24 May 2019. After a further meeting on 27 May 2019 the defendant purported to terminate the agent’s instructions.
The deceased’s grave still does not have a headstone. There was a dispute as to the order in which the names of the applicant and defendant would be inscribed on the headstone. It appears that this matter is now resolved. The parties have agreed that the headstone can be inscribed in accordance with the document marked “A” annexed to the applicant’s draft amended orders.
The applicant claims that outgoings in respect of the Glynde property during the period of the defendant’s occupancy have not been paid. She also contends that she has incurred funeral and testamentary expenses for which she should be reimbursed from the estate.
Issues on the application
The applicant contends that the due administration of the estate has been frustrated by the conduct of the defendant.
If the Court is satisfied that this is the case then, notwithstanding the relief now sought by the applicant, an issue arises as to whether the Court should revoke the grants of probate and issue a new grant or letters of administration to permit the administration to be completed. In the alternative, the Court could consider whether the administration of the estate may be managed or resolved in some other way, including by the giving of advice and directions pursuant to s 69 of the Act.
The plaintiff seeks the following orders:
1.Paragraph 5 of the Orders made on 21 February 2019 be set aside.
2.Pursuant to s. 69 of the Administration and Probate Act 1919 (SA), the applicant in her capacity as executor of the estate of Spiros Vlahiotis, late of 37 Loader Street, Glynde 5070, who died on 19 October 2017 (the Deceased), is advised and directed that she would be justified and should:
2.1     do all things necessary to install a headstone on the Deceased’s grave bearing the inscription attached to these orders and marked “A”;
2.2     sell the land comprised and described in Certificate of Title Register Book Volume 5574 Folio 81, and the improvements thereon, being the house property at 37 Loader Street, Glynde (the Glynde Property), for a price of not less than $650,000, with the sale to be conducted by way of auction.
3.In the event that the Glynde Property is sold to a purchaser in accordance with the advice and direction given in paragraph 2 above, if the defendant in his capacity as executor of the estate of the Deceased neglects or refuses to convey the Glynde Property to the purchaser for a period of 28 days after being required to do so by the applicant, then:
3.1 pursuant to section 40 of the Trustee Act 1936 (SA), the applicant be appointed to authorise pursuant to Part 20A of the Real Property Act 1886 (SA) on behalf of the defendant the execution of all instruments required to transfer the Glynde Property to the said purchaser; and
3.2 pursuant to section 64 of the Real Property Act 1886 (SA), upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of the defendant of which execution is authorised by the applicant, together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple and the payment of all necessary fees, the Registrar-General is directed to register the memorandum of transfer on the certificate of title for the said land.
4.Pursuant to s. 69 of the Administration and Probate Act 1919 (SA), the applicant in her capacity as executor of the Deceased, is advised and directed that she would be justified and should:
4.1     pay, or otherwise indemnify herself for payments already made by her, out of the proceeds of sale of the Glynde Property, for:
4.1.1the reasonable costs of the headstone installed in accordance with the advice and directions given in paragraph 2 above;
4.1.2all council rates, insurance, water and electricity charges incurred in respect of the Glynde Property after the death of the Deceased;
4.1.3all other funeral and testamentary expenses incurred by her, including the sum of $19,796.59 incurred by her;
4.2     withhold distribution of the defendant’s share of the residuary estate of the Deceased out of the estate funds held by her until such time as the defendant pays the estate, by way of payment to her on behalf of the estate:
4.2.1a sum equal to the occupation fee, payable for the time the defendant was in occupation of the Glynde Property after the death of the Deceased, being from 19 October 2017 to 21 May 2019, fixed at the sum of $24,990; and
4.2.2a sum equal to the water usage component of the water charges incurred in respect of the Glynde Property after the death of the Deceased and paid out of his estate in accordance with paragraph 4.1 above, plus interest;
4.3     in lieu of the defendant paying into the estate by payment to the applicant as executor the sums referred to in paragraphs 4.2.1 and 4.2.2 above, distribute the residuary estate of the Deceased out of the estate funds held by her to the applicant and the defendant as beneficiaries on the footing that the sums referred to in paragraphs 4.2.1 and 4.2.2 above are set off against the share of the residuary estate that the defendant otherwise would be entitled to receive;
4.4     distribute the residuary estate of the Deceased out of the estate funds held by her to the applicant and the defendant as beneficiaries on the footing that the defendant has already received as part of his share of the residuary estate:
4.4.1the Deceased’s money in bank, being the money in the National Australia Bank Account 085375-55-353-5590 in the amount of $9,766.53; and
4.4.2the Deceased’s furniture, household effects, etc, being that located at the Glynde Property, at the valuation of $10,000; and
4.4.3the Deceased’s motor vehicle, being the Suzuki motor vehicle S763 AOV, at the valuation of $5,000.
5.The defendant shall pay the applicant’s costs of the proceedings, such costs to be adjudicated or agreed on a solicitor-client basis.
6.The applicant may indemnify herself out of the defendant’s share of the residuary estate of the Deceased in relation to the costs payable by the defendant above.
7.Liberty to apply.
The defendant seeks the following orders:
1.The grant of probate made on 28 February 2018 in relation to the estate of the Deceased to the applicant Alexandra Moschou be revoked.
2.The grant of probate made on 9 December 2018 in relation to the estate of the Deceased to the defendant Danny Vlahiotis be revoked.
3.There be a grant of letters of administration with the Will dated 3 February 2014 annexed of the estate of the Deceased to;
3.1     Alfio Macolino, Partner of O’Loughlins Lawyers located at Level 2, 99        Frome Street Adelaide South Australia; or
3.2     In the alternative to 3.1, to Jon Cronshaw, solicitor at Rossi Legal located     at Level 7, 185 Victoria Square Adelaide South Australia.
4.That the administrator shall have the power to get in all and any assets of the estate due to the estate and to pay from those funds the testamentary expenses and lawful debts of the deceased that power including the power to resolve;
4.1     the installation of a headstone on the Deceased’s grave bearing an      inscription;
4.2     to sell the land comprised and described in Certificate of Title Register Book Volume 5574 Folio 81, and the improvements thereon, being the house property at 37 Loader Street, Glynde (the Glynde Property), for a price of not less than $650,000, with the sale to be conducted in such manner and upon such terms and conditions as may be determined by the administrator.
4.3     to pay (or reimburse) out of the proceeds of sale of the Glynde Property:
4.3.1the reasonable costs of the headstone;
4.3.2all council rates, insurance, water and electricity charges incurred       in respect of the Glynde Property after the death of the Deceased;
4.3.3all other funeral and testamentary expenses;
4.4     to make the adjustments that the administrator considers appropriate to the defendant’s share of the residuary estate of the Deceased out of the estate funds held for:
4.4.1an occupation fee that should be payable for a period the time the defendant was in occupation of the Glynde Property after the death of the Deceased; and
4.4.2the water usage component of the water charges, and the electricity charges, incurred in respect of the Glynde Property after the death of the Deceased;
4.4.3the distribution of the residuary estate of the Deceased out of the estate funds held by him to the applicant and the defendant as beneficiaries on the footing that the defendant has already received as part of his share of the residuary estate having regard to;
(i)some of the the Deceased’s money in bank, being the money in the National Australia Bank Account 085375-55-353-5590 in the amount to be calculated by the Administrator; and
(i)proceeds from the sale of the motor vehicle, being the Suzuki motor vehicle S763 AOV.
5.Costs.
6.Liberty to apply.
It can be seen from the contending orders that the administration of the estate cannot continue as it is. The primary issue for the Court is whether the administration of the estate should remain with the applicant or whether the Court should make orders revoking the grants of probate extracted by each of the applicant and the defendant and grant letters of administration with the will annexed of the deceased’s estate to an independent administrator who shall complete the administration of the deceased’s estate.
The outstanding matters in that administration, given that it appears the wording of the headstone has now been resolved, are: the sale of the Glynde property; the reimbursement to the applicant out of the proceeds of sale of funeral and testamentary expenses incurred by her; a determination whether the defendant is liable to the estate for an occupation fee and the costs of outgoings for the period during which he was occupying the Glynde property subsequent to the deceased’s death, and if so, an order made for payment or an adjustment of the distribution of the residue of the estate; a distribution of the residue of the estate taking into account any proved appropriation by the defendant of the furniture, motor vehicle and money in the bank account of the deceased; and payment of the costs of this application.
The evidence
The applicant relies upon the following affidavit evidence:
·affidavits of Julia Ellen McGrath of 12 September 2018 and 31 May 2019;
·affidavits of the applicant of 26 August 2019 and 21 September 2019;
·affidavit of Matthew John Stephens of 27 August 2019;
·affidavit of the defendant of 6 June 2018 exhibiting a statement of assets and liabilities of the deceased;
The applicant also relies upon a grant of probate to the defendant of 9 December 2018 and a bundle of correspondence between the parties which was the subject of various objections that I ruled upon.
The defendant relies upon:
·affidavits of the defendant of 20 August 2019 and 24 September 2019 subject to various rulings I made in relation to objections to that evidence.
·an affidavit of Brenton Grant of 24 September 2019.
In addition both the applicant and the defendant gave oral evidence.
Assessment of witnesses
I formed an unfavourable view of the evidence given by the defendant. I was left with the strong impression that his answers in cross-examination were frequently evasive and tailored to whatever he considered would best advance his cause. His evidence in relation to the termination of the retainer of Mr Turner as the agent for the purposes of the sale of the Glynde property demonstrated a contumelious disregard for the orders of the Court. I am prepared to rely upon his evidence only to the extent that it is corroborated by contemporaneous documents or other evidence.
Some of the evidence given by the applicant was unduly defensive and occasionally tendentious. However, I consider this was largely the result of her frustration with what she perceived to be the obstructive approach taken by the defendant to the administration of the estate and the resulting costs. I am generally prepared to rely upon her evidence for the purposes of making findings of fact.
Should the applicant continue to administer the estate or should the Court revoke the grants of probate and grant letters of administration to an independent administrator?
Findings of fact
I find that there has been an irreparable breakdown in the relationship between the applicant and the defendant, particularly in their role as executors of the deceased’s estate. I consider that if they were to continue to act as executors, that would be contrary to their own interests as beneficiaries in that it would prolong the administration of the estate and increase the costs involved. The level of mistrust between them means that almost any decision made by either in his or her capacity as executor will be challenged by the other. In the circumstances, I am satisfied that the due and proper administration of the deceased’s estate is in jeopardy as a result of the breakdown in the relationship between them.
Relevant principles

A court will pass over a named executor where to appoint that executor would place the administration of the estate in jeopardy.[5] There are no limits to the grounds upon which a named executor may be passed over as each case depends upon its own facts.[6] The Court’s overriding concern is promoting the orderly administration of the estate and the welfare and the best interests of the beneficiaries.[7] The primary concern of the Court will be to ensure the estate is efficiently and properly administered according to the terms of the will.[8] In order to determine whether a named executor should be passed over it is not necessary to make any final determination in relation to the claims made against them.[9]
[5]    Bates v Messner (1967) 67 SR (NSW) 187; In the Estate of Wilkinson [2018] SASC 200 at [6]-[18]; Executor Trustee Australia v McDougall [2011] SASC 140 at [22], (2011) 110 SASR 462 at 468; Callaway v Callaway [2019] NSWSC 1275 at [10].
[6]    Callaway v Callaway [2019] NSWSC 1275 at [10].
[7]    Miller v Cameron (1936) 54 CLR 572.
[8]    Mavrideros v Mack (1998) 45 NSWLR 80 at 107-108.
[9]    In the Estate of Crane [2005] SASC 379 at [14], (2005) 93 SASR 198 at 201-202; Woodley v Woodley (No. 2) [2017] WASC 94 at [67]; In the Estate of Wilkinson [2018] SASC 200 at [14].
Consideration
The applicant gave evidence that she was no longer capable of communicating with the defendant.[10] As long ago as 1 March 2018 the applicant’s solicitors wrote to the defendant’s then solicitor describing the nature of the relationship between the executors as one of intractable conflict and estrangement.[11] I accept that characterisation of the relationship between the executors as accurate both at that time and subsequently.
[10] T 67.3-4.
[11] Exhibit R11, Exhibit BG1.
The breakdown in the relationship has placed the administration of the estate in jeopardy. It has delayed the sale of the house. That is no criticism of the conduct of the applicant. It is the fault of the defendant. Nonetheless, the orderly administration of the deceased’s estate has been disrupted. Also the recent conduct of the applicant in removing the chandelier from the Glynde property and changing the locks satisfies me that her conduct in administering the estate is now influenced by her mistrust of the defendant. I consider it likely that if the present situation was to continue, the orderly administration of the estate will continue to suffer. Even if the defendant was removed as an executor, I do not consider that would resolve the difficulties. The level of mistrust between the applicant and the defendant is such that he is likely to contest any decision the applicant makes in relation to the administration of the estate. Notwithstanding the opposition of the applicant, in my view the best interests of the beneficiaries would be protected and advanced, and the orderly administration of the estate promoted, if both grants of probate made in this matter were revoked and letters of administration with the will annexed be granted to Alfio Macolino. While Mr Macolino has been proposed as the grantee of letters of administration by the defendant, I understand if such an appointment is to be made, there is no objection to his appointment by the applicant.[12] I am satisfied that he would be a genuinely independent administrator. While a grant of letters of administration to him will incur costs to the estate, I am satisfied that in all likelihood those costs will be less than the costs which would result from either a continuation of the present position, even with the Court giving advice and direction pursuant to s 69 of the Act, or the revocation of the grant of probate extracted by the defendant.
[12] I assume Mr Macolino is prepared to take a grant of letters of administration.
In the circumstances I would: revoke the grant of probate made on 28 February 2018 in relation to the estate of the deceased to the applicant, Alexandra Moschou; revoke the grant of probate made on 9 December 2018 in relation to the estate of the deceased to the defendant, Danny Vlahiotis; and grant letters of administration with the will dated 3 February 2014 annexed of the estate of the deceased to Alfio Macolino of 99 Frome Street, Adelaide in the State of South Australia.
During the hearing of this matter evidence was given in relation to various matters in dispute between the parties relevant to the issues in dispute identified earlier in these reasons. I propose to make findings and orders, to the extent I am able, which will assist in the administration of the estate by reducing those unresolved matters still outstanding.
The Glynde property
I commence with the principal asset of the estate, the Glynde property. It is necessary for the property to be sold. That should be a matter of priority for the administrator.
The administrator shall have the power to sell the Glynde property for a price not less than $650,000 with the sale to be conducted in such manner and upon such terms and conditions as may be determined by the administrator as most likely to maximise the sale price.
The administrator shall have the power to pay, or reimburse, out of the proceeds of the sale of the Glynde property: all council rates, insurance, water and electricity charges incurred in respect of the Glynde property after the death of the deceased.
At issue is whether the defendant is liable to pay an occupation fee to the estate, and if so in what amount, for the period during which he was in residence at the Glynde property subsequent to the deceased’s death. That in turn requires a finding as to when the defendant’s occupation of the Glynde property ended.
In Johnson v Trotter[13] White J considered the liability of an executor to account to the estate for his or her occupation of estate property. His Honour held that an executor, as a fiduciary, was not entitled to profit from his or her office at the expense of the beneficiaries of the estate.[14] His Honour said:[15]
[W]here a trustee who takes possession of trust property is also a beneficial co-owner and is entitled in that latter capacity to possession, he is not automatically required to account for his profit arising from his taking possession. In Brown v Brown, the trustee’s profit was derived as a result of his beneficial co-ownership. However, a trustee is required to act impartially between beneficiaries. If the trustee does not do so, or if his occupation of the property is contrary to the terms of the trust or his duty to the beneficiaries as a whole, he will be liable to account for the profit, notwithstanding it is a profit which he would be entitled to derive in his capacity as beneficiary.
…
In my view, it follows from Brown v Brown that it is only where his possession is inconsistent with the performance of the duties of the executors or trustees to act in the interests of both beneficiaries to realise the property to best advantage, that he will be liable to pay an occupation rent. Put another way, Mr Trotter is not liable to pay an occupation rent if, in taking possession, he was acting in accordance with his duties as executor to seek to realise the estate for the best price obtainable, even if he also derived a benefit in doing that.
[13] [2006] NSWSC 67.
[14] [2006] NSWSC 67 at [23].
[15] [2006] NSWSC 67 at [26] and [28].
In addition, White J held that the defendant would not be liable to account to the estate for his occupation if he had the informed consent of the applicant.[16]
[16] [2006] NSWSC 67 at [29].
The defendant submits that he is not liable to account to the estate for his occupation of the property, first because he was acting in accordance with his duties as an executor to realise the estate for the best price obtainable by remaining in occupation, thereby securing the property and maintaining the building and grounds, and second, because he did so with the implied consent of the applicant, while the defendant was attempting to obtain finance to purchase the property.
I do not accept this submission.
In Byrnes v Kendle[17] Heydon and Crennan JJ said that an executor of a deceased estate must “lay it out for the benefit of the estate”. It is the duty of the executor to obtain income from the estate property if it is capable of yielding an income. If the property is lettable land it should be let for rent.[18] Johnson v Trotter was decided before Byrnes v Kendle. It is to be understood as the recognition of an exception to the general rule propounded in Byrnes v Kendle. It is an exception to the duty of an executor to act in the interests of all the beneficiaries by realising the estate property to best advantage. Accordingly, an executor who occupies estate property without paying rent and without taking steps to secure a rent-paying tenant is liable to pay an occupation rent unless, in doing so, he or she is acting in accordance with his or her duties as executor to seek to realise the estate for the best obtainable price.
[17] [2011] HCA 26, (2011) 243 CLR 253.
[18] [2011] HCA 26 at [119], (2011) 243 CLR 253 at 291-292; see also French CJ at [22]-[23] and Gummow and Hayne JJ at [67].
I am satisfied that the applicant as the other beneficiary of the deceased’s estate did not consent to the defendant’s protracted occupation of the property following the deceased’s death without paying rent. In doing so, the defendant was acting in breach of his fiduciary duty. He was in occupation for 18 months, when for much of that period the estate could have earned income from the property. The value of the work done by him and his wife around the home is difficult to assess, but it could not amount to the likely sum the estate could have earned from letting the property. Even allowing for any benefit to the estate of having someone in occupation, I am satisfied that the estate has lost rather than benefited from the lengthy period during which the defendant was in occupation without paying rent. I consider, however, that there was no breach of duty for a period of some six weeks subsequent to the deceased’s death during which the defendant continued to occupy the property, having taken up occupation prior to the death of the deceased and at the request of the deceased. The defendant was not in breach of his duty, given he was entitled to a reasonable period of time to vacate the property following the deceased’s death. He should not be liable for occupation rent during that period. He is liable for occupation rent for the period from 30 November 2017 until 21 February 2019 when the Court made orders in the matter. Pursuant to those orders the defendant was entitled to remain in occupation until 20 May 2019. By that date he had ceased occupation of the Glynde property. I do not accept his evidence that he vacated the property on the Anzac Day weekend of 2019. I find that he ceased occupation on 18 May 2019. That was his evidence in his first affidavit of 20 August 2019.[19] That is consistent with the contents of the email sent by the defendant’s solicitors to the applicant’s solicitors on 17 May 2019.[20] However, he is only liable for payment of occupation rent to 21 February 2019. After that date he was occupying the property pursuant to a Court order. That order did not provide for payment of rent by him during the period to 20 May 2019.
[19] Exhibit R9 at paragraph 51. The defendant in his oral evidence corrected the reference from 2017 to 2019 at T 39-40.
[20] Exhibit R9, Annexure DV11.
I have not received any evidence as to a reasonable rent payable for the Glynde property during the period 30 November 2017 to 21 February 2019. I am not in a position to make any finding. In the circumstances it is a matter for the administrator to assess the amount of the rent. In doing so, the administrator should make some modest allowance for the benefit the estate derived from the performance by the defendant of upkeep and maintenance of the property. There is little evidence of what this constitutes, apart from cleaning, weeding and mowing the lawns. I think an appropriate allowance would be $50 per week.
The administrator shall have the power to make such adjustments that the administrator considers appropriate to the defendant’s share of the residuary estate of the deceased out of the estate funds for an occupation fee that should be payable for the period from 30 November 2017 to 21 February 2019. The adjustment is to be made on the basis of a determination by the administrator of what constitutes a fair market rent for the Glynde property during that period, less the sum of $50 per week.
The administrator shall have the power to make such further adjustments that the administrator considers appropriate to the defendant’s share of the residuary estate of the deceased out of the estate funds for the water usage component of the water charges incurred in respect of the Glynde property after the death of the deceased, plus interest.
The headstone
As I have indicated, the parties have now agreed that the headstone can be inscribed in accordance with the document marked “A” annexed to the applicant’s draft amended orders. The administrator shall have the power to pay, or reimburse, out of the proceeds of the sale of the Glynde property the reasonable costs of the headstone.
Funeral and testamentary expenses
I accept the evidence of the applicant that she has expended the sum of $19,796.59 for funeral and testamentary expenses. There is no challenge to the reasonableness of those expenses.
The administrator shall have the power to pay, or reimburse, out of the proceeds of the sale of the Glynde property, funeral and testamentary expenses, including the sum of $19,796.59 incurred by the applicant.
Moneys in the bank account
On his own admission the defendant withdrew the balance of funds in the deceased’s NAB account after his death. This was an amount of $9,766.00. On the evidence available I am satisfied some of these moneys were used by the defendant for his own benefit. An example of that is payment of his legal costs. The evidence does not establish the amount of those costs.
During the hearing the defendant produced some papers said to evidence his use of these moneys.[21] Counsel for the applicant submits that this evidence only establishes that $783.79 was paid to satisfy debts or expenses of the deceased. The evidence is insufficient for me to reach a concluded view in relation to this matter. It is an issue which should be determined by the administrator.
[21] Exhibit A13.
The administrator shall have the power to make such adjustments that the administrator considers appropriate to the defendant’s share of the residuary estate of the deceased out of the estate funds on the footing that the defendant has already received as part of his share of the residuary estate some of the deceased’s money in bank, being the money in a National Australia Bank account 085375‑55‑353‑5590 in the amount to be calculated by the administrator.
Furniture and other effects
There was a dispute between the parties as to what had become of the deceased’s furniture and household effects. The applicant says the deceased’s furniture has been removed from the Glynde property. She admits to removing the chandelier. The defendant says that he returned all his father’s furniture to the Glynde property except for a lounge, television and a couple of other small items. I am not prepared to accept the defendant’s evidence that he returned most of the furniture to the Glynde property.
The applicant estimated the value of the furniture and household effects at $10,000.00. I do not consider that estimate is reliable. The defendant called no evidence as to value. I am not in a position on the evidence to make any finding as to the value of the furniture and other effects of the deceased. This is a matter I must leave to the administrator.
The administrator shall have the power to make such adjustments that the administrator considers appropriate to the applicant’s and the defendant’s shares of the residuary estate of the deceased out of the estate funds for the value of the furniture and other effects.
The motor vehicle
I accept the evidence of the defendant, supported as it is by a written record of the sale,[22] that the value of the deceased’s Suzuki motor vehicle was $1,800.
[22] Exhibit A13.
The administrator shall have the power to make such adjustments that the administrator considers appropriate to the defendant’s share of the residuary estate of the deceased out of the estate funds on the footing that the defendant has already received as part of his share of the residuary estate the sum of $1,800 being the value of the Suzuki motor vehicle S763 AOV.
Commission
I would reserve the question of the commission and expenses of the administrator.
Costs
The principal asset of the estate is the Glynde property. The failure to sell the property was the result of the defendant’s conduct in breach of the orders made by this Court on 21 February 2019. Had the sale of the property proceeded in accordance with the regime established by those orders and had the defendant not used at least some of the moneys in the deceased’s bank account for his own benefit without accounting to the applicant, it is likely that the hearing of this matter would have been unnecessary.
Costs are at the discretion of the Court. The only fetter on the exercise of the discretion is that the discretion must be exercised judicially and by reference to considerations relevant to the proceedings. In the circumstances, I would order that the defendant is liable for two-thirds of the costs of these proceedings and the applicant is liable for the remaining third. The administrator should adjust applicant’s and the defendant’s shares of the residuary estate of the deceased out of the estate funds held for those costs.
Orders
I direct the applicant to bring into Court minutes of order reflecting the terms of these reasons.