Kim Patrick Brockhurst as agent for MONICA Ann O'Mara v Das
[2025] WASC 334
•19 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KIM PATRICK BROCKHURST as agent for MONICA ANN O'MARA -v- DAS [2025] WASC 334
CORAM: STRK J
HEARD: ON THE PAPERS
DELIVERED : 19 AUGUST 2025
FILE NO/S: CIV 2171 of 2023
BETWEEN: KIM PATRICK BROCKHURST as agent for MONICA ANN O'MARA
First named First Plaintiff
THOMAS MARTHINUS SMALBERGER as agent for MONICA ANN O'MARA
Second named First Plaintiff
AND
ANDRE DAS
Defendant
ANDRE DAS
Plaintiff by counterclaim
KIM PATRICK BROCKHURST as agent for MONICA ANN O'MARA
First Defendant by counterclaim
THOMAS MARTHINUS SMALBERGER as agent for MONICA ANN O'MARA
Second Defendant by counterclaim
Catchwords:
Probate - Administration of estates - No grant of probate or administration pending dispute over validity of a will and adjudication of counterclaim - Application for the appointment of an administrator pending grant of probate or administration - Administration Act 1903 (WA) s 35 - Agreement in principle reached as between the parties to compromise proceeding - Appointment of the interim administrators sought to assist to give effect to terms of that agreement - Whether the court is satisfied that there is a sufficient reason to appoint an interim administrator - Turns on own facts
Legislation:
Administration Act 1903 (WA) s 35
Rules of the Supreme Court 1971 (WA) O 73 r 22
Result:
Application granted
Category: B
Representation:
Counsel:
| First named First Plaintiff | : | No appearance |
| Second named First Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Plaintiff by counterclaim | : | No appearance |
| First Defendant by counterclaim | : | No appearance |
| Second Defendant by counterclaim | : | No appearance |
Solicitors:
| First named First Plaintiff | : | Fort Knox Legal |
| Second named First Plaintiff | : | Fort Knox Legal |
| Defendant | : | Curae Law |
| Plaintiff by counterclaim | : | Curae Law |
| First Defendant by counterclaim | : | Fort Knox Legal |
| Second Defendant by counterclaim | : | Fort Knox Legal |
Case(s) referred to in decision(s):
Brockhurst v Andre Das [2023] WASC 226
Farano v Arcaro [2021] WASC 461
Farano v Arcaro [2021] WASC 461 (S)
Fazio v Naso [2016] WASC 385
Goodsall v Keen [2006] NSWSC 1143
Gooley v Gooley [2020] NSWSC 798
Henderson v Executor Trustee Australia Ltd [2005] SASC 477
Mooncraft v Fazio [2023] WASC 406
Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337
Simmone Maree Moscufo as executrix of the will of Guiseppe Moscufo v Moscufo [2024] WASC 404
The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62
Vallelonga v Sorgiovanni [2017] WASC 323
Woodley v Woodley [No 3] [2015] WASC 425
STRK J:
Introduction
Alfred Joseph Jones died on 3 May 2022. These reasons concern the (now unopposed) application that the court appoint an administrator pendente lite to the deceased's estate. By way of background, I record as follows.
Monika Ann O'Mara is the deceased's only surviving sister. She resides in the United Kingdom and lacks capacity. If Mr Jones died intestate, I understand Ms O'Mara to be the only person entitled in distribution.
The deceased had a will dated 14 August 2019, the beneficiaries of which include Andre Das. It is Ms O'Mara's position that the will was destroyed by the deceased between 10 October 2019 and 13 October 2020 by tearing it with the intention of revoking it. Through Ms O'Mara's personal representatives, Kim Patrick Brockhurst and Thomas Martinus Smalberger, an application was made for letters of administration of the deceased's estate on the basis that he died intestate (in the non‑contentious probate action PRO 4373 of 2022).
On 20 January 2023 Mr Das filed a caveat against the grant of letters of administration on the basis that the 14 August 2019 will was not revoked and may be proved as the deceased's last valid and effective will.
On behalf of Ms O'Mara, Mr Brockhurst and Mr Smalberger applied to remove the caveat pursuant to the Administration Act 1903 (WA) s 64, which application was dismissed in June 2023: Brockhurst v Andre Das [2023] WASC 226.
Through Ms O'Mara's personal representatives, Mr Brockhurst and Mr Smalberger, this proceeding was commenced by writ of summons filed on 13 October 2023. By the proceeding, Mr Brockhurst and Mr Smalberger sought (among other things) that the court declare against the validity of the revoked 14 August 2019 will, and an order granting letters of administration of the deceased's intestate estate in favour of Mr Brockhurst and Mr Smalberger on behalf of Ms O'Mara. Mr Das was joined as the defendant to the proceeding.
Mr Das has defended the proceeding and by a counterclaim has sought (among other things) that there be a pronouncement of the force and validity of the 14 August 2019 will; a declaration that the tearing of the 14 August 2019 will was not such as to validly revoke that instrument; and an order directing the Probate Registrar to issue a grant of letters of administration (with will annexed) of the 14 August 2019 will in favour of the Public Trustee (WA) or an independent administrator.
By a chamber summons filed on 3 June 2025, Mr Das made an application seeking the appointment of an administrator pendente lite and receiver to the deceased's estate. By that application Mr Das moved for orders in the following terms:
1.Ian Torrington Blatchford of c/- Blatchford Lawyers, Level 1, Irwin Chambers, 16 Irwin Street, Perth, Western Australia (the Administrator) be appointed the administrator pendente lite and receiver of the estate of the late Alfred Joseph Jones (Estate) pending the determination of this action pursuant to section 35 of the Administration Act 1903 (WA) (Act) with the same plenary powers as an administrator granted administration pursuant to section 25 of the Act, save for the power to finally distribute the Estate.
2.The Administrator is entitled to be paid out of the Estate on a time/hourly basis at the hourly rates specified in the Notice of Consent and filed herein.
3.The parties and Administrator have liberty to apply.
4.The Defendant's costs of the application be paid by:
4.1the plaintiffs; or
4.2alternatively, by the Estate.
The application was programmed by Registrar Hosking to hearing at a special appointment before a Judge or the Master on a date to be fixed not before 14 July 2025.
By a memorandum of proposed consent orders filed on 25 July 2025, among other things, the parties moved for the making of orders which facilitated the appointment of Ms O'Mara's representatives, Mr Brockhurst and Mr Smalberger, as interim administrators (rather than Mr Blatchford), and for the special appointment that had been listed on 6 August 2025 to be vacated.
The memorandum recorded 'reasons for orders' in the following terms:
The parties have reached a conditional agreement to resolve the proceedings. The appointment of the interim administrators and the adjournment of the taxation of costs is sought to assist to give effect to terms of that agreement.
Application - papers relied upon
The parties advised the court that they agreed to the application being determined on the papers. The papers read in support of the application were as follows:
(a)the affidavit of scripts made by Mr Das sworn on 22 November 2023, to which he attached a copy of the 14 August 2019 will and deposed to his belief that the original pieces of that will had been delivered to the Supreme Court in the non‑contentious probate action PRO 4373 of 2022;
(b)the affidavit of Nigel Jerome Siegwart (a legal practitioner employed by Curae Law and Mr Das' representative in this proceeding) sworn on 3 June 2025;
(c)the affidavit of Meagan Ashlee Stannard (a legal practitioner employed by Fort Knox Legal and the plaintiffs' legal representative in this proceeding) sworn on 26 June 2025;
(d)the outline of submissions filed on behalf of Mr Das on 15 July 2025 (save for pars 31 to 33, which submissions were withdrawn); and
(e)the further affidavit of Mr Siegwart sworn on 15 July 2025.
The applicable principles
Farano v Arcaro [2021] WASC 461 concerned an application by the plaintiff for an order appointing an administrator pendente lite to the estate of his late father pursuant to the Administration Act s 35. At [35] to [41], I summarised the principles applied in the disposition of that application. It is convenient to reproduce that summary here.
Under the Administration Act s 35 and the Rules of the Supreme Court O 73 r 22, the court has the power to appoint an administrator and/or a receiver pending any suit concerned with the validity of a will. The Administration Act s 35 provides as follows:
The court may, pending any proceedings touching the validity of any will, or for obtaining, recalling, or revoking any probate or administration, appoint an administrator of the personal estate and a receiver of the real estate of any deceased person, at such remuneration and with such full or limited powers as the Court may think fit.
Section 35 is the statutory means of addressing circumstances in which, first, a grant of probate has not been made; secondly, there are pending probate proceedings; and thirdly, there is a need for the interests of the estate in question to be represented in the interim.[1]
[1] Woodley v Woodley [No 3] [2015] WASC 425 [15] (Beech J).
As was observed by EM Heenan J in The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62:[2]
[2] Cited with approval in Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337 [82] (Pritchard J). See also Simmone Maree Moscufo as executrix of the will of Guiseppe Moscufo v Moscufo [2024] WASC 404 [25] (Solomon J). For a discussion of the history and nature of an application for administration pendente lite see also Simmone Maree Moscufo as executrix of the will of Guiseppe Moscufo v Moscufo [23] (Solomon J), summarising Henderson v Executor Trustee Australia Ltd [2005] SASC 477.
21The section in its present form is the result of an amendment to the earlier s 35 made in 1976. The origin of that section, plainly is s 163 of the Judicature Consolidation Act 1925 of England and Wales which provides:
'163(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the High Court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate, and every such administrator shall be subject to the immediate control of the court and act under its direction.
(2) The Court may, out of the estate of the deceased, assign to an administrator appointed under this section such reasonable remuneration as the Court thinks fit.'
(See now Supreme Court Act (1981) UK - s 117.)
22The differences between the original English provisions and s 35 of the Western Australian Act, obviously enough, are, first, the amplitude of powers expressly conferred upon a general administrator under the English prototype and the situation under s 35 of the State Act where the powers are limited to such, full or limited powers, as the court confers at the time of appointment and, second, the express power for the court to assign remuneration under the English provision. I have no doubt this can be done pursuant to the powers of the court otherwise conferred in this State. There is also a third small difference between s 35 and its model, which is mainly of historical interest. Under s 35 there is a distinction recognised between the appointment of an administrator of personal estate and a receiver of real estate, no doubt reflecting the old rule that personal estate devolved on the personal representative and real estate devolved upon the heir. That rule has long since been abolished in England and in Western Australia. That distinction is not maintained in the English provision which treats administration of the estate as carrying the right to deal with both real and personal estate. As I have mentioned, apart from historical interest, nothing appears to turn on that distinction.
23 The origin and effect of the jurisdiction conferred under s 163 of the old English Act is discussed in an earlier edition of Tristram and Coote's, 'Probate Practice', (22nd ed (1964)) at 384 and following and at 976 and in Halsbury's Laws of England, 4th ed, vol 17, at pars 1003 to 1005. In those sources it is emphasised that to found the jurisdiction to make such a grant or appointment there must be a probate action actually pending. … The commentators observe that:
'The application may be made by any person, whether or not a party to the pending action, as for instance a creditor ... The jurisdiction is not exercised where there is a person legally entitled to represent or take possession of the property as in the case of the surviving partner, but it is not confined to cases of necessity.'
and a reference is made to the case of Bellew v Bellew (1865) 34 LJPM & A 125, which has been cited to me in argument, where the Court said that it would not follow the established practice of requiring a case of necessity to be made out before making the grant but would adopt the Chancery practice and make the grant wherever a Chancery Court would appoint a receiver. The same principle was later followed In Re Bevan, Bevan v Houldsworth [1948] 1 All ER 271, a decision of the English Court of Appeal.
While necessity need not be established, as was observed by Master Sanderson in Vallelonga v Sorgiovanni [2017] WASC 323, the appointment of an interim administrator in circumstances such as this is referred to as a grant of administration pendente lite (that is, pending suit), and such an appointment will only be made if there is sufficient reason to do so.[3] The learned Master further observed that the appointment of an interim or limited administrator ought be made having regard to whether the appointment is in the interests of justice and in the best interests of all parties connected with the estate.[4]
[3] Vallelonga v Sorgiovanni [5], Sanderson M citing Goodsall v Keen [2006] NSWSC 1143. The sufficient reason test was applied in Mooncraft v Fazio [2023] WASC 406 [31] (Howard J). The test has also been applied in New South Wales when considering the nearly analogous Probate and Administration Act 1898 (NSW) s 73 in Gooley v Gooley [2020] NSWSC 798 [125] ‑ [126] (Williams J).
[4] Vallelonga v Sorgiovanni [9].
If there is sufficient reason to appoint an interim administrator, questions arise as to who should be appointed, and what powers they might have.[5] Master Sanderson observed that as a general rule, the authorities suggest that a party to the dispute ought not be appointed as the administrator. In this regard, the learned Master noted at [6] that:
In Tomkinson v Hersey (1983) 34 SASR 181 Cox J after reviewing the authorities concluded:
It is hardly surprising that the textbooks and the few reported decisions on the question are generally opposed to the notion of appointing as an administrator pendente lite someone who is personally and actively involved in the lis itself. The desirability of having the estate administered by someone who stands quite outside the litigious battle is obvious. The cases support the Acting Master's conclusion that, as a general rule, a person unconnected with the action is the most suitable person to be appointed as administrator pendente lite (184).
That decision was referred to and followed by McMeekin J in Hempsteed v Ward [2013] QSC 348.
[5] Vallelonga v Sorgiovanni [9].
However, in Fazio v Naso [2016] WASC 385, Master Sanderson did appoint one of the parties to the litigation in circumstances where he was satisfied that the appointment of the party would not adversely affect the estate in question. The case of Fazio v Naso concerned an application by a party for a grant of administration ad colligenda bona defuncti.[6] Literally translated, the plaintiff sought a form of limited administration 'to collect the deceased's goods', which application was opposed by the first and second defendants. The learned Master concluded the appointment of someone independent of the parties in the circumstances of that case to be unnecessary. The learned Master at [11] observed:
As was pointed out by counsel for the plaintiff the plaintiff's solicitor is very experienced and has taken the advice of counsel at every turn. The plaintiff appears to have followed that advice without question. There is nothing in the evidence to suggest that the plaintiff will not properly administer the estate knowing as he does he will be answerable to the court for any maladministration. In the circumstances the additional cost occasioned by appointing an independent administrator would not in my opinion be justified.
[6] See also Simmone Maree Moscufo as executrix of the will of Guiseppe Moscufo v Moscufo [21] (Solomon J).
Disposition
Is there sufficient reason to appoint an interim administrator?
The stated aim of the proposed appointment of an interim administrator in this case pursuant to s 35 of the Administration Act was to safeguard the deceased's estate and to maximise its value for the ultimate beneficiaries, whoever they might ultimately end up being determined to be.[7]
[7] Outline of submissions filed on behalf of the defendant, par 9.
The deceased's estate includes an apartment located in Darley Street, South Perth,[8] which has been vacant since late October 2020.
[8] Affidavit of NJ Siegwart sworn 3 June 2025, NJS2.
It was observed that regardless of the outcome of the proceeding, the apartment will need to be sold. If Ms O'Mara was successful, there is no suggestion that she would relocate to Perth from the United Kingdom to live in the apartment; and if Mr Das was successful and the August 2019 will was upheld, the apartment will also need to be sold in order to distribute the estate between the beneficiaries named in that will.[9]
[9] Outline of submissions filed on behalf of the defendant, pars 19 - 22.
Further, it was observed that:[10]
(a)pending the determination of this proceeding, there is no party with legal authority sell the apartment;
(b)the apartment has significant holding costs (estimated at some $9,373 per year); and
(c)the apartment has appreciated in value since the deceased's passing giving rise to a potential capital gains tax liability unless it can be sold and settled by 3 November 2025.
[10] Outline of submissions filed on behalf of the defendant, par 17; affidavit of NJ Siegwart sworn 3 June 2025, par 7.
As to the holding costs referred to above, it was noted that it was unknown what arrangements had been made in relation to the unpaid holding costs for the property, and unless a party with legal authority was appointed to make arrangements with creditors, there was a risk of creditor enforcement against the assets of the estate.[11]
[11] Outline of submissions filed on behalf of the defendant, pars 23 - 25.
As to the potential capital gains tax liability referred to above, Mr Siegwart deposed to his understanding (and the basis for his understanding) that the two year capital gains tax exemption period with respect to the apartment expired on 3 May 2024; and an automatic self‑assessed extension of the period could be considered for a period of up to 18 months, requiring a sale and settlement of the apartment by 3 November 2025.[12]
[12] Affidavit of NJ Siegwart sworn 3 June 2025, pars 10 - 11, NJS6, NJS7.
It was also noted on behalf of Mr Das that beyond the safe harbour provisions (described above), it is possible to seek the exercise of the Commissioner of Taxation's discretion for a longer period for capital gain to be disregarded. However, as was outlined at par 29 of the submissions filed in support of the application on behalf of Mr Das:
(a)the exercise of such a power is discretionary and requires an application to the Commissioner. There is no certainty that it would be granted and there would be costs associated in the preparation of such an application; and
(b)the commentary from deceased estate tax specialists Lyn Freshwater and Ian Raspin in their book on the topic is that 'in our experience, about 50% of requests for extension of the two-year period were granted prior to the publication of the PCG [Practical Compliance Guideline 2019/5 - which sets out the safe harbour provisions and ability to apply for a further exercise of discretion], so you should err on the side of caution when applying it.'
On behalf of Mr Das it was submitted that given the above, it would be in the best interests of the beneficiaries of the estate that the apartment be sold and settled prior to 3 November 2025 to minimise the prospect of a capital gains tax liability for the increase in value of the property since the deceased's death, rather than speculate as to the property's future value and whether the Commissioner might exercise its discretion in relation to the capital gains tax exemption.[13]
[13] Outline of submissions filed on behalf of the defendant, par 30.
In the end, the parties to this proceeding sought by consent the appointment of administrators pendente lite and receivers of the estate of the deceased pending the determination of the proceeding. The consent of the parties was not a sufficient basis to ground the appointment. An appointment made by the court under s 35 of the Administration Act is not an appointment that typically might be made by the consent of the parties reflected in a memorandum of proposed consent orders, without the court having the benefit of affidavit evidence in support of the appointment and submissions.[14]
[14] As discussed in Farano v Arcaro [2021] WASC 461 (S)[85].
As is noted above, s 35 is the statutory means of addressing circumstances in which, first, a grant of probate has not been made; secondly, there are pending probate proceedings; and thirdly, there is a need for the interests of the estate in question to be represented in the interim.[15] In this case, a grant of probate has not been made; there are pending probate proceedings; and (as summarised above) there is sufficient evidence to be satisfied that there is in fact a need for the interests of the estate of the deceased to be represented in the interim.
Who should be appointed?
[15] Woodley v Woodley [No 3] [15] (Beech J).
Ian Blatchford, a lawyer independent of the parties with considerable experience acting in such roles, had consented to be appointed to act as interim administrator.[16] While the appointment of Mr Blatchford was initially promoted on behalf of Mr Das, the parties to this proceeding in the end sought by consent an order in the following terms:
1.Kim Patrick Brockhurst of 17/8 Darley Street, South Perth, Western Australia and Thomas Marthinus Smalberger of c/- Fort Knox Legal, Ground Floor, Centrepoint Tower, 123B Colin Street, West Perth, WA 6005 (the Administrators) be appointed the administrators pendente lite and receivers of the estate of the late Alfred Joseph Jones (Estate) pending the determination of this action pursuant to section 35 of the Administration Act 1903 (WA) (Act) with the same plenary powers as an administrator granted administration pursuant to section 25 of the Act, save for the power to finally distribute the Estate.
2 The parties and Administrators have liberty to apply.
[16] Affidavit of NJ Siegwart sworn 3 June 2025, attachment NJS8.
Such an appointment would not readily be justified in circumstances where there remained significant conflict as between the parties. In such circumstances, the appointment of an independent third party who stands apart from the litigation with no interest in the distribution of the estate (like Mr Blatchford) would likely be the appropriate course.
However, in this case the parties had informed the court that they had reached a conditional agreement to resolve the proceedings, and the appointment of the interim administrators was sought to assist to give effect to terms of that agreement. In this context, I am satisfied that the appointment can be made.
What power should the appointee have?
The parties have agreed that the appointees ought have the same plenary powers as an administrator granted administration pursuant to s 25 of the Administration Act, save for the power to finally distribute the estate. In the circumstances deposed to, which includes the evidence concerning holding costs and potential capital gains tax liability, the scope of power proposed appeared justified.
Conclusion and orders
Satisfied that there is sufficient reason to appoint an interim administrator, having given consideration to whether the appointment would be in the interests of justice and in the best interests of all parties connected with the estate, for these reasons I will grant the application and make orders in the following terms:
1.Kim Patrick Brockhurst of 17/8 Darley Street, South Perth, Western Australia and Thomas Marthinus Smalberger of c/‑ Fort Knox Legal, Ground Floor, Centrepoint Tower, 123B Colin Street, West Perth, WA 6005 (the Administrators) be appointed the administrators pendente lite and receivers of the estate of the late Alfred Joseph Jones (Estate) pending the determination of this action pursuant to s 35 of the Administration Act 1903 (WA) (Act) with the same plenary powers as an administrator granted administration pursuant to s 25 of the Act, save for the power to finally distribute the Estate.
2.The parties and Administrators have liberty to apply.
The parties' minute of proposed consent orders filed on 25 July 2025 did not address costs. By order 2 the parties will have liberty to apply with respect to the same.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Strk
19 AUGUST 2025
0
13
2