Irdi v Lang - [2025] WASC 421

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   IRDI -v- LANG [2025] WASC 421
CORAM:   MASTER RUSSELL
HEARD:   18 SEPTEMBER 2025
DELIVERED          :   3 OCTOBER 2025
FILE NO/S:   CIV 1513 of 2025
BETWEEN:   AGOSTINO IRDI as executor and trustee of the estate of SANDY TOMISLAV JOHN KOVACIC
Plaintiff
AND
MONICA JULIANE TERESA LANG
First Defendant
MARGITT ROSE SCOTT
Second Defendant
JENNY MARIA LARSSON
Third Defendant

Catchwords:

Trusts - Trustees - Judicial advice - s 92 Trustees Act 1962 (WA) - Whether specific beneficiaries of real property liable to pay costs and expenses incurred in relation to the property after death of deceased - Whether executor and trustee entitled to apply for orders for sale of property to reimburse costs and expenses incurred - Turns on own facts

Administration of estates - Application for directions in relation to questions arising in relation to administration of estate - s 45 Administration Act 1903 (WA)

Wills - Construction - Executor's application for directions - s 45 Administration Act 1903 (WA)

Probate - Probate jurisdiction of Supreme Court of Western Australia - Authority of executor of estate to administer assets outside of jurisdiction - Authority under grant of probate limited to administering assets in jurisdiction

Equity - Declaratory relief - Declaration sought that beneficiaries of estate disclaimed specific gift of any real property outside Australia - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 6, s 8, s 45
Bush Fires Act 1954 (WA) s 33
Family Provision Act 1972 (WA)
Land Tax Assessment Act 2002 (WA) s 7, s 9
Local Government Act 1995 (WA) s 6.43
Rules of the Supreme Court 1971 (WA) O 18 r 16, O 37 r 2, O 37 r 6
Supreme Court Act 1935 (WA) s 25
Trustees Act 1962 (WA) s 92
Water Services Act 2012 (WA) s 126, s 128
Wills Act 1970 (WA) s 24, s 28

Result:

Application granted
Directions to be given pursuant to s 92 Trustees Act 1962 (WA) and s 45 of the Administration Act 1903 (WA)
Declaration to be made

Category: B

Representation:

Counsel:

Plaintiff	:	EM Heenan SC
First Defendant	:	In Person
Second Defendant	:	No appearance
Third Defendant	:	DJ Miller

Solicitors:

Plaintiff	:	Irdi Legal
First Defendant	:	In Person
Second Defendant	:	In Person
Third Defendant	:	Culshaw Miller Lawyers

Case(s) referred to in decision(s):

AA as executor of the estate of BB v XX [No 2] [2024] WASC 39
Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226
Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
In re Paradise Motor Co Ltd [1968] 1 WLR 1125
In re Pearce [1909] 1 Ch 819
In re Rooke [1933] Ch 970
Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
O'Brien v McCormick [2005] NSWSC 619
Pacella v Sherborne [2009] WASC 58
Permanent Trustee Company (Canberra) Ltd v Finlayson (1968) 122 CLR 338
Pringle v Pringle [2010] WASC 206
Re Blyth [1997] 2 Qd R 567
Re Fitzpatrick [1952] Ch 86, 89
Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261
Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove [2023] WASC 87
Smart v Prisoner Review Board (WA) [2012] WASC 48
Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575
Walsh v Sloan [2019] WASCA 107; (2019) 18 ASTLR 64
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wood (as Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

MASTER RUSSELL:

Introduction

This proceeding concerns the estate of the late Sandy Tomislav John Kovacic (Estate), who died on 14 January 2019.
By originating summons filed on 16 May 2025 (Application), the plaintiff, Agostino Irdi as executor and trustee of the Estate, applies for directions pursuant to either or both of s 92 of the Trustees Act 1962 (WA) and s 45 of the Administration Act 1903 (WA), and a declaration that the first and second defendants have disclaimed any interest in any real property of the Estate situated outside Australia.
In support of the Application, the plaintiff relies on his affidavit sworn and filed on 16 May 2025 and an outline of submissions dated 3 September 2025, as filed on 9 September 2025. The plaintiff has also filed an amended minute of proposed orders in relation to the directions and declaration sought.
Mr Kovacic died in Sweden, where he lived with and was survived by his de-facto spouse, Jenny Maria Larsson, and their daughter, Angelika Maria Franziska Larsson, then a minor.[1] With no disrespect to them, as they share the same surname, I will refer to Jenny and Angelika by their first names for clarity.
[1] Affidavit of Agostino Irdi sworn 16 May 2025 (Irdi Affidavit) [8].
Jenny is the third defendant. She relies on her affidavit sworn on 20 August 2025, filed on 21 August 2025 and an amended outline of submissions filed on 16 September 2025, in which she concurs with and adopts the plaintiff's submissions. Jenny supports the directions and declaration sought by the plaintiff, as reflected in her minute of proposed orders.
Mr Kovacic was also survived by two sisters, Monica Juliane Teresa Lang and Margaret Rose Scott, both of whom reside in Perth, Western Australia.[2] Ms Lang and Ms Scott, are the first and second defendants. Ms Lang opposes the Application. Ms Scott has filed a notice of intention to abide and has otherwise taken no part in the proceedings.
[2] Irdi Affidavit [9].
Ms Lang has filed four documents described as affidavits in opposition to the Application, as follows:
(a)affidavit of Monica Lang sworn and filed on 23 July 2025 (First Lang Affidavit);
(b)affidavit of Monica Lang sworn and filed on 23 July 2025 with annexures 'A1-1' - 'A1-41' (Second Lang Affidavit);
(c)affidavit of Monica Lang sworn on 5 August 2025, filed on 12 August 2025, with annexures 'A1-1' - 'A1-18' (Third Lang Affidavit);
(d)affidavit of Monica Lang sworn and filed on 29 August 2025 with annexures 'A1-2' - 'A1-17' (Fourth Lang Affidavit).
Ms Lang also relies on an outline of submissions filed on 8 September 2025, which also appears to have been signed and witnessed as if an affidavit. Attached are a number of documents referred to in the submissions, many of which are attached to one or more of Ms Lang's affidavits. Ms Lang has also filed a document described as a minute of proposed orders, but includes a number of statements relating to asserted facts.
The form and much of the content of the affidavits do not comply with the procedural requirements for affidavits under O 37 rr 2 and 6 of the Rules of the Supreme Court 1971 (WA) (RSC). They are largely written in the third person and contain commentary and submissions, some of which are difficult to follow and not all relevant to the Application. The materials also express a number of questions or concerns Ms Lang has, as opposed to evidence relevant to the issues to be determined in the Application.
Counsel for the plaintiff and for Jenny both recognise that Ms Lang is self-represented and suggested a pragmatic approach to Ms Lang's evidence. Neither took objection to the affidavits in so far as they attach objective evidence in the form of documentary evidence and were content for the Court to receive them into evidence on that basis. I have taken account of Ms Lang's affidavits to the extent they contain relevant evidence supported by the documents attached to them.
As Ms Lang is self-represented, she is entitled to some leniency in relation to compliance with the Court's rules.[3] I am also required to approach the documents in which she articulates her case and response to the Application with some flexibility.[4] At the same time, I must ensure that any latitude I give to Ms Lang does not deprive the other parties of their right to procedural fairness and a fair hearing.[5] It is imperative that I maintain a neutral and impartial position.[6]
[3] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
[4] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J); Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P with whom Hope & Samuels JJ agreed).
[5] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51].
[6] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74].

Relevant factual background

Unless otherwise stated, the following relevant factual background and the context in which the Application is made is derived from the Irdi Affidavit, as summarised in the plaintiff's submissions.
Mr Kovacic died leaving a will dated 15 September 2005 (Will). The plaintiff was appointed as the executor of the Estate in Western Australia pursuant to a grant of probate issued by this Court on 4 November 2019.[7]
[7] Irdi Affidavit [5], AI-1.
Another will was drafted for Mr Kovacic in 2009, but the solicitors who prepared the draft, Haynes Leeuwin, advised by letter dated 3 May 2019 that they have no notes and no record of Mr Kovacic finalising that will.[8]
[8] Irdi Affidavit, AI-7; Second Lang Affidavit [2] - [5], A1-9, A1-23.
The Estate includes the following real property located in Sweden and in Western Australia, and personal property also located in both jurisdictions:[9]
(a)title to a vacant block of land in Hillarys, Western Australia more particularly described as Lot 184 on Plan 13051 and being the whole of the land in Certificate of Title Volume 1549 Folio 430 (Hillarys Land), with a value of approximately AUD$750,000 as at May 2020;[10]
(b)cash funds of approximately AUD$600,000 in Western Australia;[11]
(c)a half interest in the family home in Sweden in which Mr Kovacic, Jenny and Angelika lived, which, after deduction of an outstanding mortgage, is valued at approximately 905,400 Swedish Krona (SEK) (approximately AUD$144,600);[12]
(d)cash funds and securities in Sweden of 508,643 SEK (approximately AUD $81,241);[13] and
(e)various chattels in Sweden of nominal value.[14]
[9] Irdi Affidavit [10].
[10] Irdi Affidavit [11(a)].
[11] Irdi Affidavit [11(b)].
[12] Irdi Affidavit [12(a)].
[13] Irdi Affidavit [12(b)] and [12(c)].
[14] Irdi Affidavit [12(d)].
The Estate in Sweden also has a liability of approximately 150,093 SEK (approximately AUD$23,973).[15]
[15] Irdi Affidavit [13].
Relevantly, by cl 5 of his Will, Mr Kovacic:[16]
(a)gave any right, title or interest held by him in any real property to his parents, Tomislav Kovacic and Maria Kovacic, and his sisters, Ms Lang and Ms Scott, as survive him and if more than one as tenants in common in equal shares, and if none of them survived him, to Jenny.[17]
(b)gave the residue of his Estate, after payment of funeral and testamentary expenses, any taxation liabilities, debts and all duties payable by reason of his death on the whole of his Estate, to Jenny, and if Jenny did not survive him to any child or children of his that survive him and attain the age of 21 years (as tenants in common if more than one). If neither Jenny nor any child or children of his attained a vested interest in the residue of his Estate, he gave it to such of his parents or sisters as survive him and, if more than one, as tenants in common in equal shares.[18]
[16] Irdi Affidavit [6], AI-1.
[17] Will, cl 5.1; Irdi Affidavit AI-1.
[18] Will, cl 5.2; Irdi Affidavit AI-1.
Mr Kovacic's parents pre-deceased him so that the only beneficiaries of the specific gift of his real property are Ms Lang and Ms Scott.[19] Jenny is the beneficiary of the residue of the Estate, after payment of the expenses, liabilities and debts, as stated.
[19] Irdi Affidavit [7], AI-2, AI-3.
Since Mr Kovacic's death, the Hillarys Land has been levied with water and sewerage charges, local government rates, and land tax, and the plaintiff, as executor, has incurred expenses for clearing firebreaks as required by the City of Joondalup. I will refer to those charges, rates, land tax and expenses together as the costs and expenses. The total amount of the costs and expenses incurred to the date of the Irdi Affidavit, 16 May 2025, was $19,941.[20]
[20] Irdi Affidavit [17] - [18], AI-5.
On 21 July 2021, Ms Scott paid $4,214.41 to the plaintiff in reduction of the costs and expenses paid in relation to the Hillary's Land, leaving an outstanding balance, as at the date of the Irdi Affidavit, of $15,726.59.[21] The plaintiff has not sought to recover the balance from Ms Scott as he understands that she intends to gift her interest in the Hillarys Land to Ms Lang once the land is transferred to them.[22]
[21] Irdi Affidavit [19].
[22] Irdi Affidavit [30].
Attempts made by the plaintiff to recover the balance and requests made of Ms Lang to pay the costs and expenses relating to the Hillarys Land and to reimburse those incurred and paid have been unsuccessful.[23] The plaintiff has paid the balance owing in respect of the Hillarys Land from the residue of the Estate.[24] Although the available evidence only addresses the costs and expenses incurred to 16 May 2025, it may be inferred that such costs and expenses continue to accrue.
[23] Irdi Affidavit [19], [29], [31], AI-11, AI-12, AI-13, AI-14.
[24] Irdi Affidavit [20].
Subject to directions from the Court and resolution of the issue relating to payment of the costs and expenses, the plaintiff deposes that his intention is to transfer the Hillarys Land to Ms Scott and Ms Lang as tenants in common in equal shares in accordance with the terms of the Will, unless:
(a)he is instructed by Ms Lang and Ms Scott that it should only be transferred to one of them; or
(b)the Court directs that he would be justified in making an application for an order for sale of the Hillarys Land to obtain reimbursement of the costs and expenses incurred in relation to it, if such are not reimbursed.[25]
[25] Irdi Affidavit [32].
As submitted on behalf of the plaintiff, a complicating factor in the administration of the Estate is that Swedish law is to the effect that, regardless of the contents of Mr Kovacic's will, Angelika, as his daughter, is entitled to half of the net Estate (comprised of all assets in both Sweden and Australia) and that, as a matter of Swedish law, this distribution ranks as a first priority after the payment of debts.[26] In essence, for Angelika to receive half of the net value of the Estate, the Swedish real estate, or the proceeds of its sale, would have to pass to her.
[26] Irdi Affidavit [33] - [35], [37] - [41], AI-15, AI-16, AI-17.
In letters dated 18 March 2019[27] (18 March 2019 Letter) and 3 May 2019[28] (3 May 2019 Letter) from Haynes Leeuwin to Irdi Legal, Haynes Leeuwin (then acting on behalf of Ms Lang and Ms Scott), stated that their clients wished to confirm, for the avoidance of all doubt, that the only real estate covered by cl 5.1 of the Will was the Hillarys Land. The 3 May 2019 Letter stated that Ms Lang and Ms Scott have no interest at all in the remainder of the Estate and did not regard any real estate in Sweden to fall within the provisions of cl 5.1.
[27] Irdi Affidavit [21], AI-6.
[28] Irdi Affidavit [22], AI-7.
By letter dated 23 May 2019, Franziska Larsson, as guardian of Angelika, gave notice of Angelika's claim to one-half of the Estate pursuant to Swedish law.[29]
[29] Irdi Affidavit [23], AI-8.
In December 2020, Culshaw Miller gave notice of a potential claim by Jenny for further provision from the Estate under the Family Provision Act 1972 (WA).[30]
[30] Irdi Affidavit [24], AI-9; Affidavit of Jenny Larsson sworn 20 August 2024 (Larsson Affidavit) [4]; Fourth Lang Affidavit, page 28.
On about 21 December 2020, Jenny, Ms Lang, and Ms Scott executed a deed of settlement (Deed of Settlement) by which they agreed that, in full and final settlement of Jenny's foreshadowed claim for further provision from the Estate, Ms Lang and Ms Scott would pay Jenny $250,000.[31] The plaintiff had no involvement in the preparation of the Deed of Settlement and is not party to it.[32]
[31] Irdi Affidavit [25], AI-10; Larsson Affidavit [5].
[32] Irdi Affidavit [26]; Larsson Affidavit [6].
The recitals to the Deed of Settlement record that '[Ms Lang and Ms Scott] have disclaimed any interest in real property outside of Australia' and that the effect of Swedish inheritance law is that Angelika is entitled to receive a distribution from the Estate.[33]
[33] Irdi Affidavit AI-10, pages 138 - 139.
The $250,000 that Ms Lang and Ms Scott agreed to pay to Jenny under the terms of the Deed of Settlement was paid to Jenny.[34] Ms Lang refers in her materials to Ms Scott having 'disclaimed' the Hillarys Land and states that Ms Lang paid the whole amount of $250,000 to Jenny's solicitors.[35]
[34] Irdi Affidavit [28(a)].
[35] Ms Lang’s submissions [1], A1-15, pages 78 - 79; First Lang Affidavit [1(a)], page 66.
Mr Irdi deposes that he is informed by the solicitor who advised and represented him in his role as executor and trustee of the Estate until August 2024, and believes, that there exists an understanding between Ms Lang and Ms Scott that Ms Scott will gift her interest in the Hillarys Land to Ms Lang upon such being transferred to them.[36]
[36] Irdi Affidavit [28(b)].
However, as far as the plaintiff is concerned, and as is provided by the Will, any transfer of the Hillarys Land is to be made to both Ms Lang and Ms Scott as tenants in common, subject to resolution of the issue concerning payment of the costs and other expenses incurred in respect of the Hillarys Land. It is a matter for Ms Lang and Ms Scott as to how any understanding or arrangement between them is effected.
Jenny and Angelika (by her guardian Franziska Larsson) agreed upon the manner of the distribution of the Estate in Sweden, which agreement was approved by a meeting of the Public Trustee Board of the Municipality of Karlskrona, Sweden on 23 February 2021 (Distribution Agreement). Under the Distribution Agreement, Angelika received 50% of the Estate in Sweden.[37]
[37] Irdi Affidavit [42] - [43], AI-18, AI-19.
The Distribution Agreement incorporates a table showing particulars of the assets and liabilities of Mr Kovacic's Estate from the date of his death to the date of the Distribution Agreement.[38]
[38] Irdi Affidavit [44], AI-18, page 178, AI-19, page 190.
The plaintiff seeks directions pursuant to either or both of s 45 of the Administration Act and s 92 of the Trustees Act, and a declaration pursuant to s 25 of the Supreme Court Act 1935 (WA).

The directions sought and issues arising

The plaintiff has outlined the issues upon which directions and declaration are sought in the following terms,[39] which I will refer to as Issues 1, 2 and 3, as they have been referred to by the plaintiff:
1.Whether, on a proper construction of the Will, costs and expenses relating to the Hillarys Land are payable by Ms Lang and Ms Scott as the recipients of the gift of that land by cl 5.1 of the Will or from the residue of the Estate (Issue 1).
2.If the answer to Issue 1 is that the costs and expenses are payable by Ms Lang and Ms Scott, the plaintiff seeks further direction as to whether:
(a)he is justified in refraining from transferring the Hillarys Land to Ms Lang and Ms Scott until he is reimbursed by them for the costs and expenses he has paid; and
(b)he would be justified in selling the Hillarys Land and indemnifying himself from the proceeds of sale in respect of such costs and expenses before distributing the proceeds to Ms Lang and Ms Scott,
(Issue 2).
3.Whether Ms Lang and Ms Scott have, by reason of the 18 March 2019 Letter, the 3 May 2019 Letter and the Deed of Settlement, disclaimed any interest either of them may have had in any real property of the Estate situated outside of Australia and thereby released the plaintiff as personal representative of the Estate in respect of any liability he had, or may have had, to them in respect of any such interest (Issue 3).
[39] Edited to incorporate defined terms used in these reasons.

Applicable principles - directions and judicial advice

An administrator, executor or trustee is entitled to seek directions and judicial advice from the Court in relation to any question arising in relation to any will or administration of an estate or in respect of property of an estate or trust.
The principles that apply to applications made under s 45 of the Administration Act and s 92 of the Trustees Act are well established. It is not necessary that I repeat them in detail.
The Court has a broad power under s 45 of the Administration Act in relation to the determination of questions arising in the administration of an estate. Section 45 provides:
45.Court may settle all questions arising in administration
(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
(2)Such order shall bind all persons whether sui juris or not.
(3)No final order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct.
Section 45 is expressed in broad and general terms. This is evident from the text which refers to 'any question arising in respect of any will or administration, or with reference to the distribution or application of any real or personal estate …'. In Pacella v Sherborne,[40] Master Sanderson observed that phrase is entirely open-ended, and clearly shows the legislature was intending to provide the Court with the widest possible discretion to deal with problems which arise in relation to the administration of an estate.
[40] Pacella v Sherborne [2009] WASC 58 [12].
Directions given by the Court under s 92 of the Trustees Act enable a trustee to avail themselves of the protections granted by s 95(1).
Section 92 of the Trustees Act provides:
92.Directions, trustee may ask Court for
(1)Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(2)Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.
Section 95 provides, relevantly:
95.Trustee acting under Court's direction, protection of
(1)Any trustee acting under any direction of the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as trustee in the subject-matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied.
…
The principles that apply to the Court's power and the exercise of its discretion under s 92(1) of the Trustees Act were considered by Martin CJ in Australian Executor Trustee Ltd v Attorney General (WA).[41] They have also been the subject of consideration in numerous other cases in this Court.[42]
[41] Australian Executor Trustee Ltd v Attorney General (WA) [2015] 439 [31] - [33].
[42] See for example, Equity trustees Wealth Services Limited v The Attorney General of Western Australia [2024] WASC 324 [29] - [31] (Seaward J); AA as executor of the estate of BB v XX [No 2] [2024] WASC 39 (AA v XX [No 2]); Blatchford v Laine [2018] WASC 207 [48] - [55] (Vaughan J); Wood (as Co‑Executor and Trustee of the Will of the Deceased) v Wood [No 4] [2014] WASC 393 (Wood [No 4]) [98] - [103] (Kenneth Martin J), each applying in a Western Australian context Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (Macedonian Church) [55] - [76], [162] (Gummow ACJ, Kirby, Hayne and Heydon JJ).
As observed by Lundberg J in AA as executor of the estate of BB v XX [No 2], there is a jurisdictional bar under s 92 of the Trustees Act, but it is a low one. The applicant must point to a question respecting the management or administration of trust property or a question respecting the interpretation of a trust instrument. The Court has a discretion as to whether to provide a direction under this provision.[43]
[43] AA v XX [No 2]) [26], referring to Macedonian Church [58], [162]; Wood [No 4] [2014] WASC 393 [4]; Blatchford v Laine [2018] WASC 207 [57].
It is long established that a trustee, including an executor of a deceased estate, if in doubt about the course of action to be adopted in the course of administration of the estate or trust, may apply to the Court for its opinion, direction or advice pursuant to s 92.[44]
[44] AA v XX [No 2]) [27], referring to Tsaknis v Lilburne [2010] WASC 152 [38] (E M Heenan J); In re Atkinson (dec) [1971] VicRp 73; [1971] VR 612, 615.
I am satisfied that this is an appropriate case in which the Court's power to give directions is enlivened. The issues raised and in respect of which the Court's directions are sought arise in connection with the administration of an estate, concern property the subject of a trust and in respect of the management of such property. There is also a question as to the exercise of the plaintiff's powers as executor and trustee.

The jurisdiction of the grant of probate and the law applicable to the administation of the Estate

The plaintiff's position is, in effect, that his obligations and authority as executor of the Estate, under the grant of probate issued to him are limited to administering the West Australian assets of the Estate. This is on the basis that he has not sought, nor been granted, any authority to deal with the estate in Sweden, and is under no duty to do so. He has no responsibility or power in relation to any real or personal property in Sweden, and this Court's probate jurisdiction is concerned only with property in Western Australia.
As submitted on the plaintiff's behalf, the probate jurisdiction of the Supreme Court of Western Australia extends to 'all real and personal estate whatsoever within Western Australia … of any deceased person'.[45]
[45] Supreme Court Act 1935 (WA) s 18; Administration Act 1903 (WA) s 6.
Upon the issue of the grant of probate to the plaintiff, all real and personal property of the deceased situated in Western Australia vested in the plaintiff as executor of the Estate.[46] The grant of probate of the Estate made by this Court to the plaintiff gave him authority to administer such of the Estate as was and is present in Western Australia, but does not extend to any real or personal property in Sweden or elsewhere.
[46] Administration Act s 8.
Administration of the Estate by the plaintiff within Western Australia must be carried out in accordance with Western Australian law.[47] Whether a foreign jurisdiction recognises the authority of a grant of probate by the Supreme Court of Western Australia to administer property of the Estate in the foreign jurisdiction is a matter for the local law of the foreign jurisdiction.
[47] Permanent Trustee Company (Canberra) Ltd v Finlayson (1968) 122 CLR 338, 342-343.
On the available evidence, in order to have legal status to administer the assets of an estate in Sweden, an application for such authority must be made in Sweden.[48]
[48] Irdi Affidavit AI-17, page 159.
As submitted on his behalf, the plaintiff, as executor of the real and personal property of the Estate situated in Western Australia, has no duty to go to Sweden or to have the Swedish property (or its proceeds) brought to Western Australia, in the circumstances where the local assets are sufficient to satisfy the Estate's debts.[49]
[49] Re Fitzpatrick [1952] Ch 86, 89.
For the above reasons, the plaintiff has authority (and a duty) to administer the assets of the Estate situated in Western Australia, but he has no authority (or duty) in respect of any of the assets of the Estate situated in Sweden.

Determination

Issue 1

As outlined, Issue 1 concerns whether costs and expenses paid or payable by the plaintiff as executor in respect of the Hillarys Land, that have arisen since Mr Kovacic's death, are payable by Ms Lang and Ms Scott as the beneficiaries of the specific gift of the real estate or from the residue of the Estate.

The costs and expenses

The costs and expenses in issue relate to the upkeep, care, and preservation of the Hillarys Land incurred from the time of Mr Kovacic's death. They are set out in Attachment 'AI-5' to the Irdi Affidavit and are paid and payable in relation to the Hillarys Land for service charges for the Hillarys Land to the Water Corporation, and to the City of Joondalup in respect of rates, land tax and works undertaken to comply with City of Joondalup firebreak requirements.
I accept the plaintiff's submission that s 28(1) of the Wills Act 1970 (WA) does not apply, as none of the amount paid or payable relate to debts with which the property was charged with the payment of money by way of mortgage, charge, lien or otherwise at the time of Mr Kovacic's death.
The water service charges imposed by the Water Corporation are payable and recoverable from the owner of the land for the time being, despite any change in the ownership of the land.[50] If a memorial is lodged with the Registrar of Titles advising that charges are in arrears, title to the land cannot be transferred until the memorial is removed.[51]
[50] Water Services Act 2012 (WA) s 126(1).
[51] Water Services Act s 128.
The local government rates imposed on the Hillarys Land are a charge on the land.[52] However, they are charges that have accrued after Mr Kovacic's death.
[52] Local Government Act 1995 (WA) s 6.43.
Land tax is payable by the owner of the land at the time the tax is levied.[53] However, a trustee of land held on trust is not personally liable for the taxes to any greater extent than the amount of any funds of the beneficiary that the trustee holds after receiving an assessment notice for the tax.[54] A trustee is entitled to recover any land tax he or she has paid on behalf of a beneficiary from the beneficiary or retain an equal amount from any money that the trustee receives in that capacity for the beneficiary.[55]
[53] Land Tax Assessment Act 2002 (WA) s7.
[54] Land Tax Assessment Act s 9(2).
[55] Land Tax Assessment Act s 9(3).
The City of Joondalup annually publishes a notice in the Government Gazette pursuant to s 33 of the Bush Fires Act 1954 (WA) requiring owners or occupiers of land within its district to remove flammable material and clear firebreaks on land.[56] If the owner or occupier does not undertake the required work then the local government can direct its officers to enter the land and to carry out the required work.[57] The costs incurred by the local government officers in performing that work may be recovered as a debt due from the owner or occupier of the land to the local government,[58] and are, until paid, a debt due from each subsequent owner in succession and a charge on the land with the same consequences as if it were a charge under the Local Government Act 1995 (WA) for unpaid rates.[59]
[56] See, relevantly, Government Gazette 15 September 2020 No 151 pp 2923 - 2924; Government Gazette 21 September 2021 No 163 pp 4402 - 4403; Government Gazette 9 September 2022 No 134 pp 4638 - 4639; Government Gazette 22 September 2023 No 126 pp 3190 - 3191; Government Gazette 13 September 2024 No 113 pp 2260 - 2261.
[57] Bush Fires Act 1954 (WA) s 33(4).
[58] Bush Fires Act s 33(5).
[59] Bush Fires Act s 33(8).
As submitted on behalf of the plaintiff, it is apparent that all the water rates, local government rates, land tax, and firebreak maintenance fees in question in this case are levied on or incurred directly in respect of the Hillarys Land, and all have accrued since the death of the deceased. They are not costs, liabilities, or taxes incurred by the deceased during his lifetime. They are all costs the executor has incurred because of holding the Hillarys Land as executor for the purpose of its transfer (as a specific gift) to Ms Lang and Ms Scott in due course.
I accept such costs and expenses are properly characterised as expenses necessarily incurred in respect of the upkeep, care, maintenance and preservation of the Hillarys Land from the date of Mr Kovacic's death until it can be distributed to Ms Lang and Ms Scott.
The Hillarys Land is a specific gift to Ms Lang and Ms Scott, as the surviving beneficiaries under cl 5.1 of the Will. Costs and expenses of upkeep, care and preservation of specifically bequeathed or devised property, from the time of death to its distribution, and any cost of transporting or transferring that property to the specific beneficiary, are payable by the specific beneficiary unless the proper construction of the gift is that the recipient is to receive it free of such expenses.[60]
[60] O’Brien v McCormick [2005] NSWSC 619, [39]; In re Pearce [1909] 1 Ch 819, 821; In re Rooke [1933] Ch 970.
The question of whether the costs and expenses in issue are payable by Ms Lang and Ms Scott, as the specific beneficiaries of the Hillarys Land, or from the residue of the Estate, turns on the proper construction of the relevant terms of the Will.
As a matter of Western Australian law, the Will is to be construed pursuant to the law that Mr Kovavic intended to apply at the time of making his Will. In the absence of any indication to the contrary, that is presumed to be the law of his domicile at the time he made the Will, regardless of whether he subsequently changed his domicile.[61]
[61] Wills Act 1970 (WA) s 24; Re Blyth [1997] 2 Qd R 567.
As submitted on behalf of the plaintiff, Mr Kovacic's address in the first line of the Will is in Sorrento, Western Australia, the Will is written in English, and it refers to a firm of solicitors located in Leederville, Western Australia. These factors all suggest that, at the time of making the Will, Mr Kovacic was domiciled in Western Australia. Nothing in the text of the Will suggests Mr Kovacic intended any law other than the law of his domicile (Western Australia) to apply. In those circumstances, it is apparent that the law applicable to the construction of the Will is the law of Western Australia.

The proper construction of cl 5.1 of the Will

Clause 5 of the Will provides, relevantly:
5.I GIVE all of my real and personal property to my Trustee ON THE FOLLOWING TRUSTS:
5.1As to any right, title or interest held by me in any real property for my parents TOMISLAV KOVACIC and MARIA KOVACIC and my sisters, MONICA LANG and MARGITT SCOTT as survive me and if more than one in tenants in common in equal shares PROVIDED THAT if none of them survive me then for my partner JENNY LARSSON (“Jenny”).
5.2As to the remainder of my estate to pay my funeral and testamentary expenses, taxation liabilities (if any), debts and all duties payable by reason of his death on the whole of my estate and to hold the balance ON TRUST for Jenny if she survives me …
The plaintiff's position is, in essence, that there is nothing in the Will that indicates the gift of the Hillarys Land was to be free from costs and expenses associated with its upkeep, care and preservation, or of transferring the land to the beneficiaries. In the absence of any such contrary indication, such costs and expenses are to be met by the specific beneficiaries.
In a letter dated 20 August 2024, Ms Lang's then solicitors, Law Central Legal, contended that the costs in issue were 'taxation liabilities' of the deceased payable from the residuary estate under cl 5.2 of the Will on the basis the words in cl 5.2 'whole of my estate' includes the Hillarys Land.[62] It was submitted on behalf of the plaintiff that such construction appears to rely on reading the words 'payable by reason of my death on the whole of my estate' in cl 5.2 as conditioning, and applying to, the 'taxation liabilities' which cl 5.2 provides should be paid from the residue.
[62] Irdi Affidavit AI-13.
Section 26 of the Wills Act sets out the general rules of construction of a will. The principles to be applied in construing the terms of a will are well settled. They were set out by the Court of Appeal in Walsh v Sloan.[63] I also refer to and gratefully adopt, without repeating, Acting Master McDonald's summary in Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove.[64]
[63] Walsh v Sloan [2019] WASCA 107; (2019) 18 ASTLR 64 [23] - [34].
[64] Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove [2023] WASC 87 [29] - [31], referring in turn to Pringle v Pringle [2010] WASC 206 [25].
Relevantly, the starting point is that the object of construing a will is to ascertain the testator's intention as expressed in the will itself.
As submitted by the plaintiff, there is nothing in the text or structure of the Will to indicate that Mr Kovacic intended that Ms Lang and Ms Scott should receive the Hillarys Land free of all encumbrances or expenses associated with its maintenance and preservation pending its transfer to them. There is nothing to displace the default rule that such expenses are payable by them as beneficiaries of the specific gift of the Hillarys Land.
Rather, the structure of the Will is such that a specific gift of real property is made under cl 5.1, followed by a gift of the remainder of the Estate under cl 5.2. This suggests that Mr Kovacic intended that the real property of the Estate was to be dealt with by one gift and all other property of the Estate by another.
Clause 5.2 provides, relevantly, that Jenny is to receive the remainder of the Estate, after payment of 'my funeral and testamentary expenses, taxation liabilities (if any), debts and all duties payable by reason of my death on the whole of my estate'. The plaintiff's construction is to be preferred. That is, in effect, that what Mr Kovacic intended to be paid out of the remainder of the Estate was:
1.his funeral and testamentary expenses;
2.his taxation liabilities (if any);
3.debts; and
4.all duties payable by reason of his death on the whole of his estate,
such that all his debts and liabilities that had arisen or accrued before his death or by reason of his death are payable from the residue. Any 'taxation liabilities' payable from the residue are limited to those that accrued before his death. The phrase 'all duties payable by reason of my death on the whole of his estate' is a composite phrase and intended to refer to any death duties.
In my view, the construction of cl 5.2 contended for by Ms Lang's former solicitors, to the effect that the words 'payable by reason of my death on the whole of my estate' includes taxation liabilities, cannot be accepted. As submitted by the plaintiff, to construe cl 5.2 in the way Ms Lang's former solicitors contended would have the result that only taxation liabilities and debts payable by reason of the deceased's death are payable from the Estate. The deceased's taxation liabilities and debts accrued during his life would not be included. That does not appear to have been the testator's intention.
For these reasons, on the proper construction of the Will, the costs and expenses incurred to preserve and maintain the Hillarys Land until it can be distributed to Ms Scott and Ms Lang, including water rates, local government rates, land tax and firebreak maintenance fees, are payable by Ms Scott and Ms Lang, and not from the residue of the Estate.
To the date of the Irdi Affidavit, those costs and expenses amounted to $19,941.00, less the amount of $4,214.41 paid by Ms Scott. There is no evidence before the Court as to the amounts subsequently incurred in respect of such costs and expenses. It is not necessary for me to make a finding or to stipulate a specific amount. It is sufficient to direct that any such costs and expenses relating to the Hillarys Land incurred from the date of Mr Kovavcic's death are payable by Ms Lang and Ms Scott as the recipients of the gift of that land by cl 5.1 of the Will.

None of the matters raised by Ms Lang dissuade me from this view as to the proper construction of the terms of the Will or the appropriate direction.
One of the reasons stated by Ms Lang was the time that has elapsed, being some seven years since her brother, Mr Kovacic, died. Ms Lang said, in effect, that she did not expect that when her brother made the Will, he thought it was going to be seven years that she would have to be paying the rates and other charges. In essence, Ms Lang's position is that she is entitled to the Hillarys Land, Ms Scott having said that she does not wish to receive it. On that basis, Ms Lang paid the $250,000 to Jenny under the Settlement Deed and believes she is entitled to receive the Hillarys Land but should not be required to pay the costs and expenses incurred in relation to it.
Of course, as submitted on behalf of the plaintiff, had the Hillarys Land been transferred to Ms Lang and Ms Scott, or either of them, they would have been required to pay the water rates, rates, land tax and other costs and expenses for that period, if they continued to own it, in any event.
As to any arrangement or understanding between Ms Lang and Ms Scott, as to who is entitled to the Hillarys Land, that is a matter between them. Clause 5.1 of the Will leaves, relevantly, the Hillarys Land to both of them. To the extent Ms Lang or Ms Scott have concerns relating to this or any tax consequences, those are matters they may seek advice upon and address accordingly.

Issue 2

Having determined that Ms Lang and Ms Scott, as the specific beneficiaries of the Hillarys Land, are liable for payment of costs and expenses payable in respect of the Hillarys Land since the date of Mr Kovacic's death, I turn to consider Issue 2.
The plaintiff, as executor and trustee of the Estate, 'may reimburse himself for or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trust…' and administration of the Estate.[65]
[65] Trustees Act 1962 (WA) s 71.
He also has an equitable right to reimbursement or indemnity from the assets of the trust or estate, which is akin to a first charge on the trust or estate property, relevantly, the Hillarys Land. This does not operate as a security interest but entitles the plaintiff to withhold the transfer of the Hillarys Land to Ms Lang and Ms Scott pending payment by them or reimbursement of the costs and expenses.[66]
[66] See Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 (Buckle) [47] - [51].
If he is not reimbursed, the plaintiff, as trustee, would be entitled to seek, and be justified in commencing proceedings to apply for an order for, the sale of the Hillarys Land to satisfy his right to recoup and obtain reimbursement of the costs and expenses paid in respect of the Hillarys Land that have arisen after the death of Mr Kovacic.[67]

Issue 3

[67] See Buckle [50].

In relation to Issue 3, the plaintiff seeks a declaration to the effect that Ms Lang and Ms Scott have disclaimed any interest they may have had in any real property of the Estate situated outside of Australia, and that the plaintiff has no liability to either of them in respect of any real property outside of Australia.

Applicable principles – disclaimer

Allanson J considered the principles relating to disclaimer in Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James.[68] Although that case concerned disclaimer of an interest in an intestate estate, the principles referred to apply equally in this case.
[68] Jemal David Zagami (In his Capacity as Administrator of the Deceased's Estate) v James [2017] WASC 292 (Zagami v James) [18] - [20], [22] - [23].
A beneficiary of a gift (or entitlement in distribution) cannot be forced to accept it and may refuse to accept or disclaim the gift or entitlement.[69]
[69] Zagami v James [18]. See also Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394, 401 - 402 (Latham CJ).
In Zagami v James,[70] Allanson J referred to an article by Associate Professor Neville Crago, which says:[71]
An effective disclaimer must constitute an absolute rejection of the gift. It must evince a final and non-negotiable refusal to accept the property which the donor proffers. It must be 'simple': it must not purport to do anything other than disclaim … A disclaimer must not purport to dispose of the property in some other way, such as by release. It must not purport to operate so as to change the terms of the gift. … A gift cannot be disclaimed subject to some qualification sought to be imposed by the donee, such as disclaimer only for a period of time.
It is a necessary incident of an effective disclaimer that, being peremptory, it cannot be retracted.' A disclaimer is effective in and of itself.
[70] Zagami v James [22].
[71] Neville Crago, 'Principles of Disclaimer of Gifts' (1999) 28(1) UWA LR 65, 78.
The principles outlined by Associate Professor Crago are discerned from longstanding authority to the effect that to be effective, a disclaimer must be pre-emptory, constitute an absolute rejection of the gift or interest, evince a final and non-negotiable refusal to accept it and cannot be retracted. It must be communicated to the executor or administrator, as applicable. There is no formal requirement for communication. A beneficiary may disclaim the benefit pursuant to a will or on intestacy by any effective means, including by deed or other writing, orally or by conduct.[72]

The documents said to amount to disclaimer

[72] See Zagami v James [23] referring to Application of the NSW Trustee and Guardian; Estate of SGB [2015] NSWSC 398 [20]; See also Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 [26]; In re Paradise Motor Co Ltd [1968] 1 WLR 1125, 1141 - 1142; Re Birchall; Birchall v Ashton (1889) 40 Ch D 436 (Re Birchall); Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575.

The disclaimer, in this case, is said to arise from the 18 March 2019 Letter, the 3 May 2019 Letter and the Deed of Settlement.
In the 18 March 2019 Letter, Haynes Leeuwin, then acting on behalf of Ms Scott and Ms Lang, stated, relevantly:^[73]
… We act for MONICA JULIANE TERESA LANG and MARGARET ROSE SCOTT, the beneficiaries of real estate named in clause 5.1 of the deceased's Will. The deceased's parents predeceased the deceased.
…
The deceased died in Sweden and it is understood he held land in Sweden. For the avoidance of all doubt, our clients wish to confirm that the only real estate that they consider covered by clause 5.1 is the real estate being Lot 184 on Plan 13051 Certificate of Title Volume 1549 Folio 430 being the property at …, Hillarys.
…
[73] Irdi Affidavit [21], AI-6.
In the 3 May 2019 Letter, Haynes Leeuwin, stated on behalf of Ms Scott and Ms Lang, relevantly:[74]
…
As confirmed in our letter of 24^th April, our clients confirm the only real estate covered by clause 5.1 is [the Hillarys Land].
…
Our client's have no interest at all in the remainder of the deceased's estate and as we made clear in our earlier letter, this means they do not regard any real estate in Sweden to fall within the provisions of clause 5.1
We will write to Mr Brinck and confirm that our client's do not waive their rights or entitlements under the Will to receive [the Hillarys Land] but do not seek any other rights or entitlement.
[74] Irdi Affidavit [22], AI-7.
By the Deed of Settlement, Jenny, Ms Lang, and Ms Scott agreed that, in full and final settlement of Jenny's foreshadowed claim for further provision from the Estate, Ms Lang and Ms Scott would pay her $250,000.[75]
[75] Irdi Affidavit [25], AI-10.
The recitals to the Deed of Settlement relevantly record:
…
E.The estate of the Deceased includes movable property in Australia and Sweden and real property in Australia and Sweden.
F.The Australian real property is located at … [the Hillarys Land];
G.As a result of the Deceased being resident in Sweden, the inheritance law of Sweden applies to the estate.
H.The effect of the Swedish inheritance law is that, irrespective of the terms of the Will:
(a)the child of the Deceased, namely [Angelika], is entitled to receive a distribution from the Deceased's estate;
(b)the distribution must be equivalent to the value of one half of the net estate;
(c)the distribution to Angelika is the first priority in distribution after the debts of the estate have been paid.
I.The effect of the Swedish inheritance law is that the value of the residue of the estate to be distributed to Jenny is significantly reduced.
J.Monica and Margaret have disclaimed any interest in real property outside of Australia. As their parents predeceased them, Monica and Margaret are the only persons entitled to receive the [Hillarys Land] pursuant to the terms of the Will.
K.Jenny has foreshadowed a claim for further provision from the estate, and in particular, for provision from the [Hillarys Land], pursuant to the Family Provision Act (WA) 1972 (the 'claim'). Monica and Maragret dispute that Jenny has a claim against the estate.
L.The Parties have agreed to settle Jenny's Claim (which term is defined in clause 1 of this Deed) on the basis specified in this Deed.
The Deed of Settlement indicates that, at the time of its execution, each of the parties were legally represented and they each warranted that, prior to executing the Deed of Settlement, they had obtained or had the opportunity to obtain independent legal advice and entered into the Deed of Settlement on the basis of that warranty.[76]
[76] Deed of Settlement cl 11.
The statements contained in the 18 March 2019 Letter and the 3May 2019 Letter are to the effect that Ms Lang and Ms Scott make no claim to any real estate owned by Mr Kovacic other than the Hillarys Land, and that they do not seek any rights or entitlements other than in relation to that land. The statements made in that regard are in clear, unequivocal terms. They were in writing and communicated to the plaintiff in his capacity as executor and trustee of the Estate.
The plaintiff was not a party to the Deed of Settlement, and there is no evidence to suggest the statements made in it were communicated to him, other than in the course of this proceeding. As such, the statement made in the recital is not, in my view, one that was communicated to the plaintiff, as executor. However, the statement in recital J, that Ms Lang and Ms Scott have disclaimed any interest in real property outside Australia, corroborates the statements made on behalf of Ms Lang and Ms Scott in the letters referred to.
I am satisfied on the evidence before the Court and, in particular, the terms of the 18 March 2019 Letter and the 3 May 2019 letter, as corroborated by the Deed of Settlement, that Ms Lang and Ms Scott have disclaimed any interest in real estate other than the Hillarys Land.
During argument, senior counsel for the plaintiff indicated that the real purpose of seeking the declaration about the disclaimer concerns the responsibilities of the plaintiff as the executor and trustee of the Estate in this jurisdiction. This is in circumstances, where, as outlined, the plaintiff has not sought or been granted authority to administer the assets of the Estate in Sweden, he has not assumed and is not under any duty in respect of those assets.
The relief sought in that regard is a declaration to the effect that the plaintiff has no liability to Ms Lang or Ms Scott in respect of any interest they may have in property situated outside the jurisdiction of Western Australia.
The declaration is not sought as part of the application for directions under s 92 of the Trustees Act or s 45 of the Administration Act. Rather, it is sought pursuant to the Court's power to grant declaratory relief under s 25(6) of the Supreme Court Act and O 18 r 16 of the RSC.

Applicable principles - declarations

The principles that apply to the exercise of the Court's discretion to grant declaratory relief are well established and have been set out in numerous decisions of this and other courts. It is not necessary that I repeat them in detail.
I refer to the Full Federal Court's discussion of the requirements that must be met before the discretion is exercised in favour of making a declaration, and the background to those requirements in Australian Competition and Consumer Commission v MSY Technology Pty Ltd.[77]
[77] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 [12] - [13] citing, amongst the other authorities referred to, Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (Forster v Jododex), 437 - 438 (Gibbs J) (as his Honour then was).
The Court has a discretionary power to grant declaratory relief under s 25(6) of the Supreme Court Act and O 18 r 16 RSC, which gives the Court power to make a binding declaration whether or not any consequential relief is or could be claimed.[78] As a superior court, the Court also has inherent power to grant declaratory relief.[79]
[78] Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193 [24] (Le Miere J); QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 (QBE v Lois Nominees) [18] (McLure P).
[79] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (Ainsworth v Criminal Justice Commission), 581 - 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
The power of a superior court to make a declaration in the exercise of its inherent jurisdiction is very wide and has been described as 'almost unlimited'.[80] The requirements that must generally be met, and have been consistently applied, before exercising the discretion in favour of making a declaration, are those stated by Gibbs J in Forster v Jododex:[81]
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
[80] Forster v Jododex 438 (Gibbs J).
[81] Forster v Jododex 437 - 438. See also Ainsworth v Criminal Justice Commission 581 - 582; Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406, 414B-E (Lockhart J, Spender and Cooper JJ agreeing).
There must also be some utility in making the declaration. It must have a legal or practical consequence for the parties.[82]

Should the declaration sought be made?

[82] QBE v Lois Nominees [19] - [20], referring to Ainsworth v Criminal Justice Commission 581 - 582. See also QBE v Lois Nominees [170] (Murphy JA).

I am satisfied that, in this case, the question raised is real, not theoretical and that there is utility in making the declaration sought. The plaintiff, as executor and trustee, has a real interest in raising the issue or question of whether Ms Lang and Ms Scott have disclaimed any interest either of them may have had in any real property of the Estate situated outside of Australia and thereby released the plaintiff as personal representative of the Estate in respect of any liability he had, or may have had, to them in respect of any such interest.
There is a proper contradictor who has a true interest in opposing the declaratory relief sought, in each of the defendants. Although Ms Scott has not sought to be heard, she is a person interested in the outcome and has had the opportunity to appear as a contradictor if she wished.
For these reasons, I am satisfied that the Court's power to make a declaration to the effect sought is enlivened, and that I should exercise my discretion to do so.
None of the matters raised by Ms Lang in opposition to the declaration sought persuade me that the declaration should not be made. Included in those matters were concerns raised by Ms Lang that there may be a property in Sweden, other than the family home, in which Mr Kovacic, Jenny and Angelika lived and Jenny and Angelika continue to live. The evidence does not support that there are any other properties in Sweden or indeed, elsewhere.
On the evidence before the Court, the only real property that forms part of the Estate is the Hillarys Land in this jurisdiction, Western Australia, and the property in Nattraby, Karlskrona, Sweden. It appears some confusion may have arisen on the part of Ms Lang from the property having been described variously as:
(a)Karlskrona Verstorp 3:10; and
(b)8 Salterivagen 373 31 Nattraby, Karlskrona.
As I understand Ms Lang's position, she does not take issue with having disclaimed any interest in the Swedish property she knows about, being the family home in Nattraby, Karlskrona, Sweden. Rather, she says that she has not disclaimed an interest in any other properties that Mr Kovacic may have owned in Sweden.
It is clear from Jenny's evidence in her affidavit sworn on 20 August 2025 that the two descriptions relate to the same property in Nattraby in the municipality of Karlskrona in Sweden. Jenny deposes that is the only property in Sweden, or anywhere else, that she and Mr Kovacic owned at the date of his death, other than the Hillarys Land which Mr Kovacic owned. There is no evidence to contradict this and no evidence that any other real property exists that was owned by Mr Kovacic.
Another concern expressed by Ms Lang relates to potential tax consequences arising from the transfer of the Hillarys Land to her. However, this is not a matter that arises for determination for the purpose of the Application.
Further, Ms Lang contends that the plaintiff, as executor and trustee, could have applied for probate or administration in Sweden, or to register the grant of probate in that jurisdiction. While this concern is not disputed, the plaintiff has not applied for such and he has no duty or obligation to seek probate or administration of assets of the Estate outside Western Australia.
I have considered the matters raised in the materials filed by Ms Lang and her submissions. They do not change the conclusions I have reached.

Conclusion, orders and declarations

For these reasons, I am satisfied that it is appropriate to give the directions and make the declaration substantially in the terms sought by the plaintiff, and as supported by Jenny.
I will hear from the parties as to the final form of the orders to be made to give effect to these reasons, and in relation to costs.

The plaintiff and Jenny each seek orders that Ms Lang pay their costs of the Application, to be taxed if not agreed.
Subject to any matters Ms Lang seeks to be heard on in relation to costs, my preliminary view is that it is appropriate to make orders as to costs in the terms sought by the plaintiff and Jenny. They have been put to the costs of the Application because Ms Lang has not paid and contended she did not have to pay the costs and expenses relating to the Hillarys Land. There does not appear to be any reason why costs should not follow the event in the usual course and be paid by Ms Lang, as the unsuccessful party.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to Master Russell
3 OCTOBER 2025