Nicholl v Mattingly - [2025] WASC 297

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
Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319
Walter v Hasslinger [2022] VSC 460

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, and intending no disrespect, I will refer to the people involved by their first names.
[1] Mattingly v Cosh [2025] WASC 70 (Mattingly).
Ron died on 19 March 2021. Ron was married to Linda Annabel Payne (Linda). Ron and Linda had three daughters, Wanda Mattingly (Wanda), Kyla Winifred Hay Cosh (Kyla) and Sonia Tipton (Sonia). Sonia is married to Douglas Tipton (Douglas). Kyla died on 4 February 2020. Kyla was married to David Cosh (David).
Linda died on 27 January 2013. Ron was initially the executor of Linda's will. He died on 19 March 2021. The executors of Linda's will are now Ross and Colin Jeffrey Nicholl (Colin). Colin is Linda's brother. His health, as will be seen, is poor.
Kyla and David had three children, Taleah Rachelle Hay Cosh (Taleah), Shenae Tegan Hay Negri (Shenae) and Benjamin Rhys Cosh (Benjamin). David and Taleah are the executor/executrix of Kyla's estate. I will refer to David, Taleah, Shenae and Benjamin collectively as the Cosh Defendants.
Callum died on 18 November 2020. Wanda is the executor of Callum's estate, and is the sole beneficiary of his estate.
Ross is still alive, but, again as will be seen, is in poor health.
Ross and Colin are the executors of Ron's will pursuant to a grant of probate made on 29 December 2021. In their capacity as executors, Ross and Colin are the plaintiffs in this action (Plaintiffs). It will be apparent from what I have set out so far that Kyla predeceased Ron. Under Ron's will, in that eventuality, Kyla's share of the residuary estate goes equally to Shenae, Taleah and Benjamin (each of whom have reached the age of 18).
The administration of Ron's estate has not yet been finalised due to the estate being involved as a defendant in other proceedings in this court, being CIV 1211 of 2022 (Estate Action). The plaintiff in the Estate Action is Wanda. The defendants are David, Taleah and David as executor/executrix of Kyla's estate, the Plaintiffs as executors of Ron's estate and the Plaintiffs as executors of Linda's estate. From my knowledge as case manager of the Estate Action, I am aware that the next substantive stage is a mediation conference. This follows on from the resolution of some interlocutory disputes.[2] The listing of the mediation conference is awaiting the resolution of the issue of who should be the executor of Ron's estate.
[2] Dealt with in Mattingly.
The issue of who should be the executor of Ron's estate arises as both Ross and Colin are in poor health. Because of this, by originating summons filed 8 April 2025 they seek to have the probate granted to them revoked. The Plaintiffs clearly have standing to bring this application.[3] They seek an order that letters of administration with the will annexed be granted to a solicitor, Ian Blatchford.
[3] Re Banning; Ex Parte Banning [2018] WASC 313 [35] - [36] (Vaughan J) (Banning).
The plaintiffs filed an amended application on 17 April 2025 to add further defendants (Application). The effect is that all beneficiaries of Ron's will are joined (save for a minor gift in specie to another person).[4] Those beneficiaries are Wanda, Sonia, Douglas, Taleah (as executrix of the will of Kyla), David (in his own right and as executor of the will of Kyla), Taleah, Shenae and Benjamin. I will refer them collectively as the Defendants. Each of the Defendants has entered an appearance.
[4] A copy of the grant of probate for Ron's estate, including his will, is annexed to the affidavit of Colin, sworn 3 July 2025.
The Plaintiffs rely on the affidavits of:

(a)Mr Blatchford, sworn 8 April 2025 (First Blatchford Affidavit);
(b)Colin, sworn 8 April 2025 (Colin's First Affidavit);
(c)Ross, sworn 8 April 2025 (Ross' Affidavit);
(d)Matilda Jessica Lloyd, a legal practitioner employed by the plaintiff's solicitors, sworn 22 May 2025 (Lloyd Affidavit);
(e)Colin, sworn 3 July 2025 (Colin's Second Affidavit); and
(f)Mr Blatchford, sworn 4 July 2025 (Second Blatchford Affidavit).

The Defendants rely (variously) on the affidavits of:
(a)Wanda, sworn 12 May 2025 (Wanda's Affidavit);
(b)David, sworn 18 June 2025 (David's Affidavit);
(c)Shenae, sworn 17 June 2025 (Shenae's Affidavit);
(d)Taleah, sworn 17 June 2025 (Taleah's Affidavit);
(e)Benjamin, sworn 19 June 2025 (Benjamin's Affidavit);
(f)Sonia, sworn 18 June 2025 (Sonia's Affidavit);
(g)Douglas, sworn 13 June 2025 (Douglas' Affidavit); and
(h)Douglas, sworn 21 July 2025 (Douglas' Second Affidavit).
On 12 May 2025, submissions were filed on behalf of Wanda (Wanda's Submissions). On 4 July 2025, the Plaintiffs filed submissions in support of the Application (Plaintiffs' Submissions). On 14 July 2025, David, Taleah, Shenae and Benjamin filed submissions (Cosh Submissions). On 22 July 2025 Sonia filed submissions (Sonia's Submissions). On 29 July 2025 responsive submissions were filed by each of the Plaintiffs (Plaintiffs' Responsive Submissions), Wanda (Wanda's Responsive Submissions) and Sonia and Douglas (Tipton Responsive Submissions).
In summary terms, each Defendant agrees that the Plaintiffs should be replaced. The Plaintiffs say that Mr Blatchford is the appropriate replacement. Sonia and Douglas agree with them. The remaining Defendants, Wanda and the Cosh Defendants, contend that a different solicitor, Simon England, is the appropriate replacement.
Counsel for the Plaintiffs takes issue with the fact that some of the Defendants have impermissibly referred to documents in the Estate Litigation in breach of the 'Harman' obligation.[5] The documents fall into two categories. The first is correspondence between the parties in the Estate Action. This correspondence does not fall within the scope of the Harman obligation: they are not documents which one party obtained as a result of the other party (or a third party) being compelled to disclose by reason of a rule or specific order of the court.[6] The second is an affidavit of Mr England sworn 17 March 2025 in the court heading of the Estate Action. It was filed in the Estate Action by Wanda. It annexed to Wanda's Affidavit.[7] At that point, there was an issue as to whether the revocation and replacement could be done in the Estate Action or required separate proceedings. I ultimately determined it should be done in separate proceedings.[8] Mr England's affidavit was headed in the Estate Action, not the present application. As it was filed by Wanda in the Estate Action, it is not subject to the Harman obligation. In any event, if there had been any document in the Estate Action relevant to the issue in the Application, I would have readily granted leave for it to be used. I could also have required Wanda to have had Mr England re-swear the affidavit in the court heading of the Application. However, that would just have put Wanda (and ultimately Ron's estate) to unnecessary cost.
[5] Plaintiffs' Submissions, pars 10(a), 22, 25 - 28; Plaintiffs' Responsive Submissions, pars 4 - 13.
[6] See generally: Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 [69] - [76].
[7] Being annexure WM-32A, pages 198 - 201 (England Affidavit).
[8] See generally: Transcript 10 March 2025, in particular pages 64 and onwards.
The Plaintiffs also take the point that there is no alternative application to appoint Mr England.[9] The Application by the Plaintiffs to revoke the grant of probate and replace them is properly before the court. That being so, there is no need for any of the Defendants to go to the expense of filing a parallel application also seeking to revoke the grant of probate, but to have a different person appointed as a replacement.[10] All necessary parties are before the court. The position of the Defendants who propose a different replacement is properly before the court by way of affidavits and submissions. Moreover, the Plaintiffs, Sonia and Douglas have had ample opportunity to be heard on the issue.[11] There is a pressing need to 'move matters on to finality as soon as possible'.[12]
[9] Plaintiffs' Submissions, par 10(b).
[10] Being the approach adopted in Kramer [12].
[11] See generally: Wanda's Supplementary Submissions, pars 14 - 20.
[12] Kramer [12].
That the points in [15] and [16] were taken is indicative of the unnecessary intensity with which both this Application and the Estate Action are being conducted, a point that I will return to later in these reasons.
After having made some effort to find a timely and mutually convenient date to hear the Application, on 25 June 2025 I made orders that the Application be determined on the papers, with programming orders for the filing of further submissions.
For the reasons which follow, I am of the view that Mr England should be appointed administrator of Ron's will with the will annexed. Detailed orders need to be made to give effect to this and finalise the costs issues arising in relation to the estate to date.

Matters not in contention

Five matters are not in contention. The first is that Ross is in poor health. He is 86 and is in poor health after a battle with cancer. He annexes a letter from his doctor confirming this. His doctor has advised him to exit any position of responsibility he is currently engaged in, including as an executor of Ron's will. He deposes that due to his age and health he is unable to continue to act as an executor of Ron's estate.[13]
[13] Ross Affidavit, pars 6 and 7.
The second is that Colin is in poor health. He is 84 and has multiple chronic health conditions. His cancer returned in 2024 and he continues to receive medical treatment. He annexed a letter from his doctor confirming this and 'strongly recommending' against him continuing in the legal proceedings. Colin deposes that, due to his health, he is unbale to continue to act as an executor.[14]
[14] Colin First Affidavit, pars 6 and 7.
The third is that, by Administration Act 1903 (WA) (AA) s 20(1), a 'personal representative may at any time, by leave of the Court, and on such conditions as the Court may impose, relinquish his trust to such person as the Court may appoint'. AA s 20(2) makes it clear that the term 'personal representative' includes both an executor and an administrator. The section is a remedial power and is to be construed liberally.[15]
[15] Kramer v Evans [2022] WASC 381 [7] (Sanderson M) (Kramer).
The fourth is that the court also has the power to revoke a grant of probate and appoint a replacement pursuant to either Supreme Court Act 1935 (WA) (SCA) s 18 or the inherent jurisdiction of the court.[16] The revocation of a grant of probate is equivalent to the setting aside of a court order so the power to do so is not exercised as of course or as of right.[17]
[16] Banning [33]; Smith v Partridge [2018] WASC 128 [25] (Pritchard J) (Smith) [26]; Rogers v Rogers [2009] WASC 358 [22] - [23] (EM Heenan J) (Rogers). AA s 29 is another potential power, though there is an open issue as to whether or not it applies to a grant of probate, or merely letters of administration: Rogers [16].
[17] Banning [34].
Given that there is an issue as to whom should be appointed replacement, the appropriate power in the present case is that in SCA s 18 and/or in the inherent jurisdiction of the court.
The fifth is that it would be an appropriate exercise of the court's power to revoke the grant of probate to Ross and Colin on the ground that each no longer has the capacity to continue as executor due to ill health.[18] As mentioned, each Defendant agrees with this occurring.[19]
[18] Rogers [23] - [24]; Banning [37].
[19] Wanda's Affidavit, par 1; David's Affidavit, par 5; Sonia's Affidavit, par 30; Douglas' Affidavit, par 28; Shenae's Affidavit, par 13; Taleah's Affidavit, pars 3 and 4; Benjamin's Affidavit, par 3.
What is in issue is:
·Who should be the replacement.
·The orders required to manage the transition to the replacement.
I consider later the issue of whether the replacement should be styled an executor or administrator, so will use the generic term 'personal representative' to encompass both.[20]
[20] Borrowing from the language in AA s 20(2).

Who should be the replacement?

The ultimate purpose of the court's power of revocation is to ensure the due and proper administration of the estate and of the interests of the beneficiaries. One circumstance in which the power may be exercised is where this is necessary for the due administration of the estate. The court seeks to identify what is best for the welfare of the beneficiaries and of the estate as a whole.[21] The court will, however, 'be very cautious and sparing' in the exercise of this power.[22] These considerations apply equally to the appointment of a replacement for an executor following revocation of the initial appointment.[23]
[21] Banning [34], [37]; Smith [26] - [27], [38]; Rogers [23].
[22] Rogers [32]; Banning [34].
[23] Walter v Hasslinger [2022] VSC 460 [31] (Kaye JA) (Walter).
In addition, in considering the identity of the replacement:[24]
(a)the wishes of the beneficiaries are relevant;
(b)the replacement should not be appointed with a view to promoting the interests of some of the beneficiaries in opposition to the interests of other beneficiaries;
(c)the court should be concerned to avoid appointing, as a replacement, a person or party who might have a potential conflict of interest; and
(d)in identifying the appropriate replacement, the court should have regard to whether the appointment would promote or impede the due and proper administration of the estate.
[24] Walter [31]; Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 [120] - [124] (Brereton J) (Hancock).
As to who should be appointed, as both Wanda and David are involved in the Estate Action, it would not be appropriate to appoint either (or both) to administer Ron's estate. In any event, neither seeks this appointment. None of the other beneficiaries wish to be appointed.[25]
[25] Colin's First Affidavit, par 9; Ross' Affidavit, par 9; Sonia's Affidavit, pars 93 and 94.
Both Mr Blatchford and Mr England are suitably qualified and experienced to be appointed as a personal representative. Each has undertaken similar assignments in the past. Neither has a conflict of interest. Both are going to charge in accordance with the applicable Supreme Court scale.[26] However, there are two reasons to prefer Mr England in the particular circumstances of the Application.
[26] First Blatchford Affidavit, pars 1 - 8; Second Blatchford Affidavit generally; England Affidavit, pars 3 - 6.
The first is the approach to be taken to the assignment. Mr England deposes that his usual practice when administering an estate which is a party to legal proceedings is to do so personally without engaging a law firm or counsel to represent him in his capacity as executor or administrator. He adopts that practice because, ordinarily, he has the qualification and experience to deal with the ligation without the need to obtain independent representation or advice. In those matters in which he considers it necessary or desirable to seek independent representation or advice, his usual practice is to retain independent counsel directly and to confine the brief to the issues which give rise to the unusual complexity or difficulty. His practice is to attend any mediation personally without additional representation from solicitors or counsel. He has indicated that, for cost conserving reasons, he does not propose to appoint independent counsel except in matters in which he considers it to be necessary. He has said that this would be his approach to any mediation.[27]
[27] England Affidavit, pars 7 - 9.
Mr Blatchford deposes that, as at 8 April 2024, he did not have the capacity to take over the matter 'financially' and because of his present workload. As to who he might retain, in his first affidavit he states:[28]
Generally, over the years, I have acted myself without engaging solicitors or counsel unless the need arose. I can remember having solicitors and counsel in one matter, both of whom were acting before my appointment' I also recall appointing counsel in two other matters where counsel's opinion was required for an order 70 Rule 10 approval and it made sense to have that counsel appear.
I am not bound by any commitment to continue instructing Bailiwick Legal if I were to obtain a grant of administration in the Estate. However, I do not have the capacity to take the matter over financially and because of my present workload. I am contemplating instructing Bailiwick Legal to continue to act for the Estate, with counsel Peter Macmillan assisting as required.
The alternative is to engage other solicitors, but in my view the cost of doing so would be significant to the Estate.
[28] First Blatchford Affidavit, pars 15 - 17.

In his second affidavit, sworn 3 July 2025, he retreats from this position somewhat, stating:[29]
I have no previous relationship with the firm Bailiwick Legal or the estate of the late Ronald Hay Payne. I have been provided with copies of the pleadings filed in proceedings CIV 1211 of 2022, which I have briefly looked at but not reviewed in detail. I estimate I have spent less than an hour reviewing that material.
I have not formed any opinions about how I would administer the Estate of the late Ronald Hay Payne if I were to be appointed. I would bring my own independent judgment to that issue if I were to be appointed. That includes me reviewing the conduct of the administration of the Estate up to the time of my appointment and considering what position the Estate would take in proceedings CIV 1211 of 2022.
However, Mr Blatchford does not change his position from that in April that he does 'not have the capacity to take the matter over financially and because of my present workload'. So his evidence is to the effect that, if appointed, he would engage lawyers in the Estate Action.
[29] Second Blatchford Affidavit, pars 5 - 6.
The Plaintiffs argue that it is 'plainly incorrect' to submit that Mr England could simultaneously be the executor of the estate and the solicitor on the record in the Estate Action. This is because he is a potential witness in the Estate Action.[30] I disagree. Given that the facts in issue in the Estate Action predate his appointment, in some cases by decades, I cannot envisage that there is any factual issue on which Mr England could give admissible evidence.
[30] Plaintiffs' Responsive Submissions, par 20.
In my view, in particular with a mediation coming up in the Estate Action, there is considerable merit in the personal representative having the first-hand knowledge of the issues in dispute which comes from being the lawyer on the record, rather than from diluting this knowledge between the executor and a set of lawyers. If the knowledge is replicated by the personal representative and a set of lawyers, this will inevitably lead to a doubling up of legal fees. My clear sense is that if the personal representative were to appoint lawyers to act in the Estate Action (whether or not they were the Plaintiffs' current lawyers), this would impose a greater cost burden on Ron's estate than if the personal representative himself was the lawyer on the record in the Estate Action. The cost of either Mr Blatchford or Mr England becoming familiar enough with the Estate Action to discharge their responsibility as personal representative (including to participate in the mediation) would, in my view, be more or less the same.
The second is the views of the beneficiaries. As mentioned [28], the views of the beneficiaries are relevant. I accept the point made in Wanda's Responsive Submissions to the effect that the views of the retiring executors are of minimal, if any, weight.[31] It was quite proper for the Plaintiffs to have proposed a replacement and placed all relevant factual material before the court. However, once it became apparent that there was a disagreement between the beneficiaries as to the identity of the replacement, their role should have become one of neutrality, leaving it to the beneficiaries to make the argument one way or the other.
[31] Wanda's Responsive Submissions.
Wanda and the Cosh Defendants would prefer Mr England.[32]
[32] Wanda's Affidavit, pars 1, 24 - 28; David's Affidavit, pars 5, 31 - 36, 73 - 86; Shenae's Affidavit, pars 14 ‑ 32; Taleah's Affidavit, pars 5 - 66; Benjamin's Affidavit, par 3.
One the other hand, Sonia would prefer Mr Blatchford. Her affidavit is detailed and thoughtful. An important factor appears to be that she was able to have some conversations with Mr Blatchford, but not with Mr England. She is of the view that the cost of engaging alternate lawyers would be considerably more than continuing with the lawyers currently retained by the Plaintiffs. She also places weight on the fact that Colin and Ross prefer Mr Blatchford. She goes into some factual matters relating to the Estate Action which she felt might remove one of the 'stumbling blocks' to the Estate Action being resolved through negotiation. She raises some additional factual issues relating to disputes which are connected with the due administration of the estate of both Ron and Callum. She feels that the criticism against the Plaintiffs and their current lawyers was not necessary.[33] In Sonia's Submission, she articulates concerns about the appropriateness of the legal advice provided to the Cosh Defendants. In effect, she invites the court to infer that the same inappropriateness may have infused the advice in relation to the opposition of the appointment of Mr Blatchford. Douglas supports the position taken by Sonia, again in a detailed and thoughtful affidavit.[34] Their position is reiterated in the Tipton Responsive Submissions.
[33] See Sonia's Affidavit generally.
[34] See Douglas' Affidavit generally, in particular par 28.
In my view, the fact that Wanda and David, who are on opposite sides of the Estate Action, both prefer Mr England is something that I should give significant weight to. This speaks volumes as to their perception that Mr England, more so than Mr Blatchford, will bring a productive, yet independent, influence on the timely resolution of the Estate Action. It also means that it cannot in any way be said that appointing Mr England would promote the interests of some of the beneficiaries in opposition to the interests of other beneficiaries.
The concerns of Sonia and Douglas as to the appropriateness of the legal advice provided to the Cosh Defendants is not relevant to the determination of the Application.
The Defendants, aside from Sonia and Douglas, express concern as to the manner in which the Plaintiffs, and their current lawyers, have conducted the Estate Action and the costs which have been incurred in this action.[35] Sonia, as I have mentioned, considers this criticism unnecessary.
[35] Wanda Affidavit, pars 8 - 23; David's Affidavit, pars 37 - 76; Shanae's Affidavit, pars 23 - 32; Taleah's Affidavit, pars 27 - 66; Benjamin's Affidavit, pars 3 - 15.
The concerns of the other Defendants are not without some foundation.[36] However, I observe that there has been a degree of what I would describe as unnecessary intensity between the lawyers acting for David and Wanda, and those acting for the Plaintiffs, both in the Estate Action and the Application. This has been apparent in the hearings before me. This is readily apparent from the content of, and tone used in, the correspondence before the court in the voluminous annexures to some of the affidavits filed. From all sides, this intensity has led to the generation of much more correspondence and submissions (and thus cost) than one might have expected in relation to a matter as straight forward as the Application. I get the clear sense that the funds in Ron's estate are being rapidly depleted by the legal costs from the Estate Action (and will be further depleted from all sides by the costs orders I am going to make in the Application). More importantly, from my view watching from 'above the trenches', this intensity appears to be counter-productive to the timely resolution of the Estate Action.
[36] See Mattingly [52] - [63].
Beyond the one comment I have just made referring to my earlier decision, for the purposes of determining the Application I do not need to consider further the issue of the Plaintiffs' conduct of the Estate Action and that of their present lawyers. The two reasons identified provide a sufficient, indeed ample, basis to prefer Mr England. It is my firm view that his appointment, rather than that of Mr Blatchford, would better promote the due and proper administration of Ron's estate. It may be that the change of legal representation of Ron's estate inherent in the appointment of Mr England provides a circuit breaker to the intensity between all parties which can then lead to the timely and amicable settlement of the Estate Action. That would be an outcome patently in the best interests all beneficiaries to Ron's estate.
For these reasons, Mr England is the more appropriate replacement personal representative.

What orders are required to replace the Plaintiffs with Mr England?

The orders required to replace the Plaintiffs with Mr England begin with revoking the grant of probate to the Plaintiffs made on 29 December 2021. The Plaintiffs will be required to deliver to the Probate Registry the original grant of probate for cancellation.
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].
The amount of costs incurred by the Plaintiff's in defending the Estate Action is, however, a matter of some contention between the parties. On 23 May 2025, I made an order to the effect that the Plaintiffs file an affidavit setting out the total amount of legal costs incurred by them in defending the Estate Action and, the extent, if any, of those costs that have been paid out of Ron's estate. In compliance, in Colin's Second Affidavit he deposes that:[42]
(a)the legal costs incurred by Ron's estate are $160,657.87; and
(b)the legal costs paid out of Ron's estate are $115,223.47.
In the Plaintiffs' Responsive Submissions, comment is made that these costs 'do not include the costs excluded by reference to Justice Archer's decision'.[43] I assume that this should have been a reference to my decision in Mattingly.[44] If this is the case, the position taken is entirely appropriate.
[42] Colin's Second Affidavit, pars 12 - 13.
[43] Plaintiff's Responsive Submissions, par 28.
[44] Mattingly [61] - [62].
In the particular circumstances of this case, I am going to order that the Plaintiffs costs which they are entitled to be paid out of Ron's estate relating to the Estate Action and the Application are to be taxed. They are to be taxed on an indemnity basis, that is, the Plaintiffs are entitled to all of the costs claimed except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions they are completely indemnified for their costs.[45] The remaining costs incurred in the administration of Ron's estate need not be taxed.
[45] Saraceni v Jones [2012] WASCA 59 (S) [7] (judgment of the court).
Given the concern as to costs expressed by counsel for Wanda and counsel for the Cosh Defendants, there needs to be some mechanism for these concerns to be addressed before the taxing registrar. It is not appropriate for Wanda to participate in this process given the risk of disclosure of material subject to legal professional privilege in the Estate Action.[46] Rather, it is sufficient if David undertakes this role. Programming orders need to be made to facilitate this. These orders will include the provision of information so as to allow David to properly assess the costs claimed.
[46] A point which she accepts: Wanda's Responsive Submissions, par 36.
In my view, even after the grant of probate has been revoked, the Plaintiffs will still have the power to undertake all actions necessary to finalise their role, in particular as regards the costs issues dealt with in this decision. For this reason, Mr England need not be involved in this process. The oversight of the court in the taxation process is sufficient. I make this observation so that Mr England has clarity as to his responsibility as regards handover and so that unnecessary expense is not incurred by his participation in the taxation processes.
The Plaintiffs should file and serve a bill of costs by 20 August 2025.
As to the costs of those Defendants who are represented in the Application, I regard these costs as having been reasonably and properly incurred for the benefit of Ron's estate. There should be an order that these costs be taxed as between legal practitioner and client and paid out of the estate.[47] To ensure that matters progress in a timely manner, I will place a time limit on the bills being filed.
[47] See generally: Buckton v Buckton [1907] 2 Ch 406, 414 (Buckton) (Kekewich J); Smith [54]; Tsaknis Lilburne [2010] WASC 152[89] (EM Heenan J); Mainray Nominees Pty Ltd v Stoate [2025] WASC 145 (S) [7] - [28] (Gething J).
There is a need for some other orders to facilitate the efficient and transparent revocation and replacement of the Plaintiffs.
Finally, there should be liberty to apply in relation to the implementation of the orders made, including any contention as to the scope of the costs orders.
As to the Estate Action, I note that AA s 41 relevantly provides that where probate is revoked pending any proceedings commenced against any executor lawfully acting as such, such proceedings shall be continued in the name of the administrator appointed on such revocation as if the same had been originally commenced against that administrator.
Accordingly, the following orders are appropriate:
1.The grant of probate in the estate of Ronald Hay Payne (Deceased) late of 28 Reservoir Road, Orange Grove, Western Australia, made to Ross George Payne and Colin Jeffrey Nicholl (Plaintiffs) on 29 December 2021 be revoked.
2.By 15 August 2025, the Plaintiffs deliver to the Probate Registry of this court the original grant of probate for cancellation.
3.The probate registrar be directed to issue a grant of letters of administration, with the will of the Deceased dated 8 October 2014 annexed, to Simon Christopher England (New Executor) of Level 7, 16 St Georges Terrace, Perth, Western Australia, with the terms of the grant to be settled by the probate registrar.
4.Within 14 days of being served with a copy of the letters of administration, the Plaintiffs must do all such acts as are necessary to transfer, or transfer control of, any property of the estate of the Deceased (Estate) to the New Executor.
5.Subject to order 6, within 14 days of being served with a copy of the letters of administration the Plaintiffs are to deliver to the New Executor all papers, documents, accounts, receipts and other records relating to the Estate.
6.The Plaintiffs are entitled to retain possession of a copy of any document required to finalise the issue of costs pursuant to these orders.
7.The Plaintiffs are entitled to an indemnity out of the Estate in respect of all costs incurred by them of or incidental to Supreme Court Action CIV 1211 of 2022 and this application (including the costs of the taxation).
8.The costs in order 7 are to be taxed on the basis that the Plaintiffs are entitled to all of the costs claimed, except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the Plaintiffs are completely indemnified for their costs.
9.By 20 August 2025, the Plaintiffs are to file a bill of the costs.
10.By 20 August 2025, the Plaintiffs are to serve on the Second Defendant a copy of:
(a)the bill of costs in order 9, including any supporting documentation filed with the bill;
(b)all documents recording or evidencing any written agreements as to costs, or retainer agreements, between the Plaintiffs and their current lawyers; and
(c)all invoices for costs received by the Plaintiffs.
11.The Second Defendant be at liberty to attend any taxation of the Plaintiffs costs pursuant to order 8.
12The Plaintiffs are entitled to an indemnity out of the Estate in respect of costs incurred by them, other than those in order 7, incurred by them in the administration of the Estate (which costs need not be taxed).
13.By 20 August 2025, the Plaintiffs serve on the Second Defendant and the New Executor a notice in writing setting out:
(a)the costs they have charged the Estate pursuant to order 12; and
(b)the value (or estimated value) of the Estate net of those costs.
14.The Second Defendant is at liberty to provide to any Defendant and the New Executor any information received from the Plaintiffs pursuant to this order, save that any information which may be the subject of legal professional privilege in Supreme Court Action CIV 1211 of 2022 be redacted.
15.The costs of the first, second, third, fourth, seventh, eighth and ninth defendants of this application, including the costs of taxation, be taxed as between a legal practitioner and client and paid out of the Estate.
16.By 29 August 2025, any party seeking to claim costs pursuant to order 15, file, and serve on the Plaintiffs, a bill of costs.
17.The Plaintiffs be at liberty to attend any taxation of any bill of costs served pursuant to order 16.
18.There be liberty to apply as to the orders required to finalise the involvement of the Plaintiffs in the administration of the Estate, including as to costs, and as to the implementation of these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
30 JULY 2025