In the Estate of Wendy Poole (deceased)

[2024] ACTSC 168

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Wendy Poole (deceased)

Citation: 

[2024] ACTSC 168

Hearing Dates: 

4 June 2024

Decision Date: 

4 June 2024

Before:

Mossop J

Decision: 

1.    The application in proceeding brought by Craig Poole dated 28 September 2023 is dismissed with no order as to costs.

2.    The application in proceeding brought by Olivia Poole dated 30 September 2023 and filed 3 October 2023 is dismissed with no order as to costs.

3.    The application in proceeding brought by Craig Poole dated 19 April 2024 is dismissed with no order as to costs.

Catchwords: 

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications in proceeding brought by beneficiaries seeking payments out of estate and documents concerning estate administration – where estate attempting to recover funds loaned to third party – application withdrawn upon indication that estate would not seek costs order – no appearance from applicant for outstanding application – applications dismissed

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 1404

Parties: 

Craig Poole (First Applicant)

Olivia Poole (Second Applicant)

Sandra Poole ( Respondent)

Representation: 

Counsel

Self-represented ( First Applicant)

No appearance (Second Applicant)

T Ayers ( Respondent)

Solicitors

Self-represented ( First Applicant)

Self-represented (Second Applicant)

McGilvray Law ( Respondent)

File Number:

PRO 307 of 2023

MOSSOP J:  

Introduction

1․These proceedings involve a number of applications made in relation to the estate of Wendy Poole.

Application of Craig Poole dated 5 July 2023

2․In this application in proceeding, Craig Poole sought an order that the executor Sandra Poole pay him $213,000 in accordance with the terms of the will of the late Wendy Poole.

3․He also sought a restraining order against Geoffrey Poole.

4․Finally, he sought that “all documentation and accounts regarding all loans” from the estate of Wendy Poole to Geoffrey Poole and Sandra Poole be made available for scrutiny. The application stated “we reserve the right to seek orders to have the Public Trustee & Guardian for the Australian Capital Territory involved in this matter”.

5․The proceedings were before me on 18 August 2023. At that stage, the executor (who was not legally represented) indicated that she proposed to make a partial distribution, the quantum of which was yet to be worked out, and that she intended to make a further distribution upon the repayment of the balance of a loan made by the deceased to Homemakers Hire.com.au Pty Ltd.

6․At the conclusion of that hearing, I noted various factual matters about the progress of the administration of the estate and dismissed the application in proceeding dated 5 July 2023 with no order as to costs.

Application of Craig Poole dated 28 September 2023

7․On 28 September 2023, Craig Poole filed an application in proceeding seeking:

(a)that Sandra Poole pay out $53,000 to him from the estate;

(b)a restraining order against Geoffrey Poole;

(c)that Sandra and Geoffrey Poole provide documents relating to a loan between Wendy Poole and Sandra and Geoffrey Poole;

(d)that Sandra Poole produce the power of attorney document in relation to Wendy Poole;

(e)evidence of all estate shares transactions and relevant financial statements; and

(f)disbursement documents for any property sales by Wendy and Lionel Poole.

8․On 27 October 2023, I made a series of orders designed to regularise the proceedings and put them in a form which could be mediated or allow the issues to be defined. They included ordering Craig Poole to file an amended application in proceeding stating the statutory basis and relevant paragraphs of any affidavit relied upon in support of the orders sought by him, as well as any affidavits or documents to be relied upon, by 8 December 2023.

9․Craig Poole did not comply with that order.

10․He appeared before the Registrar on 29 January 2024, at which time directions were made for a mediation, notwithstanding the absence of compliance with the earlier order. The proceedings were also listed for hearing on 30 April 2024. However, the orders for a mediation were subsequently vacated when the Registrar was informed that neither Craig nor Olivia Poole could pay the mediation fees.

11․At the hearing on 30 April 2024, Mr Hurst-Meyers, a nonlawyer who has been assisting Craig Poole, indicated that it was Craig Poole’s intention not to pursue the application. However, on that date, as Craig Poole was in hospital and did not appear, no order was made dismissing that application.

12․Craig Poole has appeared today and indicated that he wishes not to pursue the application dated 28 September 2023. The appropriate order is that the application is dismissed. No order as to costs was sought and I will order that there is no order as to costs.

Application of Olivia Poole filed 3 October 2023

13․On 3 October 2023, Olivia Poole filed an application in proceeding seeking payment of $15,000 from the estate.

14․On 27 October 2023, I ordered Olivia Poole to file points of claim identifying each material fact and cause of action relied upon for the purposes of the claim, as well as any affidavits or documents to be relied upon, by 8 December 2023. These orders were made to regularise the proceedings and put them in a form which could be mediated or allow the issues to be defined.

15․Olivia Poole did not comply with the order made on 27 October 2023.

16․She appeared before the Registrar on 29 January 2024, at which time directions were made for a mediation, notwithstanding the absence of compliance with the earlier order. The proceedings were also listed for hearing before a judge on 30 April 2024. However, the orders for a mediation were subsequently vacated when the Registrar was informed that neither Craig nor Olivia Poole could pay the mediation fees. Olivia Poole did not appear at the hearing on 30 April 2024.

17․Having regard to the failure to comply with the directions made on 27 October 2023 and the failure to attend the listed hearing on 30 April 2024, it is appropriate to dismiss the application pursuant to r 1404 of the Court Procedures Rules 2006 (ACT).

18․Therefore, I will order that the application in proceeding dated 30 September 2023 and filed 3 October 2023 is dismissed. No order as to costs was sought by the executor and therefore there will be no order as to costs.

Application of Craig Poole dated 19 April 2024

19․Craig Poole filed a new application in proceeding on 19 April 2024. In support of that application, he filed an affidavit. The affidavit and the application in proceeding are in almost identical terms. The orders that Craig Poole seeks are:

1․I seek an order that Miss Sandra Kathleen Poole, who is the Executor of the last Will & Testament of the estate for the late Mrs. WENDY DOROTHY POOLE provide Mr. Craig Kenneth Poole, the balance of your share as per the written instructions of the last Will and Testament of the estate for his mother, the late Mrs. WENDY DOROTHY POOLE.

2․We seek to add as parties to this matter, the debtors of the estate, who are Mr. Geoffrey Allan Poole, and Homemakers Hire.com.au Pty Ltd (ABN 32 135 545 309), and Mr. David Patrick Conway, a Director of Homemakers Hire.com.au Pty Ltd (ABN 32 135 545 309) in the loan document, so that these debtors can be ordered to pay their debts to the estate.

3․We also request that all documentation and accounts regarding all loans from the Estate of WENDY DOROTHY POOLE to Mr. Geoffrey Allan Poole & Sandra Kathleen Poole be provided to the Supreme Court as ordered previously.

4․I reserve the right to seek orders to have the Public Trustee & Guardian for the Australian Capital Territory be appointed as Executors in this matter.

20․It is not clear what the relationship was between this application and the earlier application dated 28 September 2023.

21․At the hearing on 30 April 2024, Craig Poole was unable to attend because he was in hospital, but Mr Hurst-Meyers, who had been assisting him, provided some information to the court. Amongst the directions that I made was a direction that Craig Poole file and serve any further evidence in support of his application in proceeding dated 19 April 2024 by 14 May 2024. I also directed that Sandra Poole, the executor, file and serve an affidavit disclosing the progress with the administration of the estate and any other evidence in relation to the application in proceeding by 28 May 2024. Craig Poole did not file any further affidavit evidence. Sandra Poole filed in court this morning an affidavit which, had it been filed by 28 May 2024, would have complied with the court’s direction. The reason for the lateness of filing is described in the affidavit and relates to representations made by Mr Hurst-Meyers that the application in proceeding dated 19 April 2024 would be discontinued. The affidavit described in some detail the progress of the administration of the estate. The principal obstacle to the finalisation of that is the failure by Geoffrey Poole to repay a loan which he agreed to guarantee pursuant to an agreement entered into on about 11 October 2023. That obliged him to repay an amount by 10 January 2024. He has not entered into a further Deed of Repayment provided by the solicitors for the estate, which would require him to repay the debt by 30 June 2024. In the event that the amount owing is not repaid by 30 June 2024, the executor intends to bring proceedings against him to recover the amount owing.

22․Craig Poole initially indicated that he wished to maintain his application in proceeding until Geoffrey Poole executed the further Deed of Repayment. However, he subsequently agreed to withdraw the application in proceeding when the estate indicated that it would not seek an order as to costs incurred in relation to the application.

Orders

23․For those reasons, the orders of the Court are:

1.The application in proceeding brought by Craig Poole dated 28 September 2023 is dismissed with no order as to costs.

2.The application in proceeding brought by Olivia Poole dated 30 September 2023 and filed 3 October 2023 is dismissed with no order as to costs.

3.The application in proceeding brought by Craig Poole dated 19 April 2024 is dismissed with no order as to costs.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 14 June 2024