JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NICHOLL -v- MATTINGLY [2025] WASC 297
CORAM: GETHING J
HEARD: ON THE PAPERS
DELIVERED : 30 JULY 2025
FILE NO/S: CIV 1371 of 2025
BETWEEN: COLIN JEFFERY NICHOLL as executor of the will of RONALD HAY PAYNE
First Plaintiff
ROSS GEORGE PAYNE as executor of the will of RONALD HAY PAYNE
Second Plaintiff
AND
WANDA MARGRIETE MATTINGLY
First Defendant
DAVID STANLEY COSH
Second Defendant
TALEAH RACHELLE HAY COSH as executrix of the will of KYLA WINIFRED HAY COSH
Third Defendant
DAVID STANLEY COSH as executor of the will of KYLA WINIFRED HAY COSH
Fourth Defendant
SONIA JEAN TIPTON
Fifth Defendant
DOUGLAS KENNETH TIPTON
Sixth Defendant
TALEAH RACHELLE HAY COSH
Seventh Defendant
BENJAMIN RHYS COSH
Eighth Defendant
SHENAE TEGAN HAY NEGRI
Ninth Defendant
Catchwords:
Probate - Executors - Application for revocation of probate on the ground of incapacity of executors - Whether replacement should be an executor or administrator with the will annexed - Dispute between beneficiaries as to who should be appointed replacement - Role of the retiring executors when there is a dispute between the beneficiaries as to who should be appointed as replacement
Legislation:
Administration Act 1903 (WA) s 20, s 36, s 37
Supreme Court Act 1935 (WA) s 18
Result:
Grant of probate revoked
Administrator appointed with the will annexed
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Eighth Defendant | : | No appearance |
| Ninth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Bailiwick Legal |
| Second Plaintiff | : | Bailiwick Legal |
| First Defendant | : | Bruce Legal Consultants (Perth) |
| Second Defendant | : | MDS Legal |
| Third Defendant | : | MDS Legal |
| Fourth Defendant | : | MDS Legal |
| Fifth Defendant | : | In Person |
| Sixth Defendant | : | In Person |
| Seventh Defendant | : | MDS Legal |
| Eighth Defendant | : | MDS Legal |
| Ninth Defendant | : | MDS Legal |
Case(s) referred to in decision(s):
Buckton v Buckton [1907] 2 Ch 406
Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207
Kramer v Evans [2022] WASC 381
Mainray Nominees Pty Ltd v Stoate [2025] WASC 145 (S)
Mattingly v Cosh [2025] WASC 70
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Nobarani v Mariconte (No 2) [2018] HCA 49
Re Banning; Ex Parte Banning [2018] WASC 313
Rogers v Rogers [2009] WASC 358
Saraceni v Jones [2012] WASCA 59 (S)
Smith v Partridge [2018] WASC 128
Tsaknis Lilburne [2010] WASC 152
GETHING J:
This decision is the second concerning the estates of three brothers. Ronald Hay Payne (Ron), Callum Craig Payne (Callum) and Ross George Payne (Ross).[1] Because of the number of people with the same surname,…
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- AGLC
- Nicholl v Mattingly [2025] WASC 297
- Case
- [2025] WASC 297
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the executors should be replaced due to their alleged incapacity, and if so, what form the replacement should take. The court had to consider the will of Ron, which did not provide for an identified substitute executor, and the relevant statutory provisions regarding administration with the will annexed.
The court ruled that the appropriate form for appointing a replacement was the grant of letters of administration with the will attached, as the will did not provide for a substitute executor. The court emphasised that annexing the will made it clear that the administrator's role was to give effect to the will's terms and administer the estate according to those terms. This decision aligned with the provisions of AA s 36 and AA s 37, which were not directly applicable but provided guidance. The court further ordered that the plaintiffs must transfer property and documents relating to Ron's estate to the new administrator, Mr England, and that a caveat should be entered allowing the plaintiffs to retain copies of documents for finalising costs.
The court also addressed the issue of costs, determining that the plaintiffs were entitled to be indemnified for their costs from Ron's estate. The court ruled that these costs should be determined and paid out at that stage to bring the plaintiffs' involvement in the estate administration to an end and to provide some certainty regarding the estate's value for the ongoing mediation in the estate action.
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 appropriate form for the appointment of the replacement is the grant of letters of administration with the will attached.[37] The appointment of a replacement 'executor' would only be appropriate where the will provides for an identified person (or persons) to be appointed as a substitute. Ron's will does not. Annexing the will makes it clear that the administrator's task is to give effect to the terms of the will and administer the estate according to its terms. This is consistent with the position in AA s 36 and AA s 37, neither of which is directly applicable: 36. Administration with will annexed Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.37.Probate or administration if executor etc. absent or neglects to obtain probate etc. Where an executor neglects to obtain or to renounce probate within 2 months from the death of the testator or from the time of such executor attaining the age of 18 years, or where an executor is unknown or cannot be found, the Court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the Court thinks fit.The terms of the grant will be settled by a probate registrar. [37] See for example: Smith [51] - [52]. There will need to be an order requiring the Plaintiffs to transfer, or transfer control of, any property of Ron's estate to Mr England. There will then need to be an order requiring the Plaintiffs to deliver to Mr England all papers, documents, accounts, receipts and other documents relating to Ron's estate.[38] A caveat is appropriate being that the Plaintiffs be entitled to retain copies of any documents required to finalise the issue of costs pursuant to these orders. [38] Rogers [38]. That leaves the issue of costs. In my view, given the intensity which I describe at [42], the issue of finalising the costs of the Plaintiffs to date should be dealt with under a program set by the court. At a directions hearing in the Application on 23 May 2025, I foreshadowed with the parties dealing with the issue of costs in this manner and the parties have had the subsequent opportunity to file submissions.[39][39] Transcript 23 May 2025, pages 114 - 121, noting my order on 25 June 2025 giving the parties until 25 July 2025 to file any further or responsive submissions, extended by order on 16 July 2025 to 29 July 2025. In my view, and bearing in mind I am the case manager of the Estate Action, the costs incurred by the Plaintiffs in defending the Estate Action to date were reasonably and properly incurred in connection with the administration of Ron's estate. They have a right to be indemnified for those costs from his estate.[40] This includes all costs incurred by them in the administration of Ron's estate, not just the costs of the Estate Action.[41] The amount of their costs needs to be determined and paid out at this stage so that the revocation brings their involvement in the administration of Ron's estate to an end. This will also mean that there is some certainty as to the value of Ron's estate when it comes to the mediation in the Estate Action.[40] RSC O 66 r 9(2); Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319, 335 (Dixon J); Nobarani v Mariconte(No 2) [2018] HCA 49 [2] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Kramer [11].[41] See for example the orders made in Kramer [11].