In the Estate of Wendy Poole (deceased) (No 2)

[2024] ACTSC 388

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Wendy Poole (deceased) (No 2)

Citation: 

[2024] ACTSC 388

Hearing Date: 

6 December 2024

Decision Date: 

6 December 2024

Before:

Mossop J

Decision: 

(1)    The application in proceeding dated 22 October 2024 is dismissed with no order as to costs.

(2)    The application in proceeding dated 11 November 2024 is dismissed with no order as to costs.

Catchwords: 

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications by beneficiary seeking documents concerning estate administration and adding debtors as parties to proceedings – where estate attempting to recover from debtors – applications dismissed by consent upon executor commencing proceedings against debtors the day before the hearing – not appropriate to make orders as to costs of the applications

Parties: 

Craig Poole ( Applicant)

Sandra Poole ( Respondent)

Representation: 

Counsel

Self-represented (Applicant)

R McGilvray (Respondent)

Solicitors

Self-represented (Applicant)

McGilvray Law (Respondent)

File Number:

PRO 307 of 2023

MOSSOP J:  

1․Mr Craig Poole filed two applications in proceeding, one dated 22 October 2024, the other dated 11 November 2024. Each sought various orders relating to the estate of Wendy Poole.

2․The application dated 22 October 2024 sought an order that Craig Poole be appointed as the executor of the will of Wendy Poole. It also sought an order adding as parties to the matter Geoffrey Poole, a company named Homemakers Hire.com.au Pty Ltd, and David Conway, a director of Homemakers Hire.com.au Pty Ltd, and an order that those debtors pay their debts to the estate. There is also an order sought that “all documentation and accounts regarding all loans” from Wendy Poole to Geoffrey Poole be provided to the Supreme Court.

3․There was previously a directions hearing in the matter on 1 November 2024. On that occasion, Craig Poole and Sandra Poole both appeared. Neither were legally represented. Orders were made requiring Craig Poole to serve the application in proceedings and his affidavit in support on Sandra Poole, directing that Craig Poole file and serve any further evidence to be relied upon in support of the application, and directing that Sandra Poole serve any evidence by 2 December 2024.

4․Craig Poole then filed the second application in proceeding along with a supporting affidavit, which was in similar terms to his earlier affidavit, which was itself very limited in its terms. It did, however, make reference to an affidavit earlier filed by Sandra Poole in a previous iteration of these proceedings.

5․This morning, I have been told by the parties that they consent to each of the applications in proceeding being dismissed. That is in the context of the estate now having commenced proceedings against Geoffrey Poole in the Supreme Court seeking to recover money said to be owed to the estate. The estate has sought an order for costs arising out of the costs incurred in appearing today.

6․In my view, although the application in proceeding was in many ways defective, it is not appropriate to make an order that Craig Poole pay the costs of the estate. The genesis of the applications made by Craig Poole is the failure of the executor to take steps to pursue Geoffrey Poole for amounts owed by him or by his company to the estate. At least as at the first directions hearing, the estate was unrepresented and had not taken steps to commence those proceedings, notwithstanding that came against the background of many months of attempting to obtain, other than by proceedings, the payment of the money to the estate.

7․The position is that the proceedings against Geoffrey Poole have only been commenced yesterday, and they have apparently not been served. There is no evidence of notice having been given to Craig Poole that that was either going to occur or had occurred. In those circumstances, notwithstanding the multiple defects in the applications in proceedings and the evidence in support, having regard to the underlying substance of the complaint, namely a failure by the executor to properly and promptly pursue Geoffrey Poole, I do not consider it appropriate to make a costs order in favour of the estate.

Orders

8․The orders of the Court are:

(1)The application in proceeding dated 22 October 2024 is dismissed with no order as to costs.

(2)The application in proceeding dated 11 November 2024 is dismissed with no order as to costs.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 18 December 2024