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
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- AGLC
- Irdi v Lang [2025] WASC 421
- Case
- [2025] WASC 421
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the specific beneficiaries of real property were liable to pay costs and expenses incurred in relation to the property after the deceased's death. Additionally, the court had to decide whether the executor and trustee were entitled to apply for orders for the sale of the property to reimburse the costs and expenses. Another significant issue was whether the executor had the authority to administer assets of the estate located outside of Australia, given that the grant of probate was limited to assets within the jurisdiction.
In addressing these issues, the court considered the broad powers conferred upon it by the Administration Act and the Trustees Act. The court referenced section 45 of the Administration Act, which grants the court the authority to settle any questions arising in the administration of an estate. This section was interpreted as providing the court with a wide discretion to deal with problems that arise in the administration of an estate. The court also examined section 92 of the Trustees Act, which allows a trustee to apply for directions concerning the management or administration of trust property. The court noted that directions given under this section enable a trustee to avail themselves of the protections granted by section 95(1), which provides that a trustee acting under a court's direction is deemed to have discharged their duty, notwithstanding any subsequent invalidation of the order.
Ultimately, the court's reasoning was grounded in statutory interpretation and the application of established principles concerning the administration of estates. The court concluded that the executor and trustee were entitled to seek the necessary directions to manage the estate effectively. The court's decision was based on the specific facts of the case, and it provided clarity on the liability of beneficiaries and the scope of the executor's authority in administering the estate.
The final orders of the court included granting the executor and trustee the necessary directions to proceed with the sale of the property to reimburse costs and expenses. The court also provided clarification on the executor's authority to manage assets located outside of Australia, limiting such authority to assets within the jurisdiction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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).