Public Trustee v Gittoes aka Caldar - [2005] NSWSC 373

CITATION:
Public Trustee v Gittoes aka Caldar [2005] NSWSC 373

HEARING DATE(S): 18 & 19/04/05

JUDGMENT DATE :

22 April 2005

JUDGMENT OF:
White J

DECISION:
See paragraph 144 of judgment.

CATCHWORDS:
VEXATIOUS LITIGANT - Administration of deceased estate frustrated - Principle in Cherry v Boultbee.

LEGISLATION CITED:
Supreme Court Act 1970 (NSW)
Public Trustee Act 1913 (NSW)
Wills, Probate and Administration Act 1898 (NSW)
Real Property Act 1900 (NSW)
Family Provision Act 1982 (NSW)
Supreme Court Rules
Conveyancing Act 1919 (NSW)
Trustee Act 1925 (NSW)

CASES CITED:
Attorney-General v Wentworth (1988) 14 NSWLR 481
Attorney-General in and for the state of New South Wales v Bhattacharya [2003] NSWSC 1150
Attorney-General (NSW) v Betts [2004] NSWSC 901
Attorney-General v Barr-Mordecai [2005] NSWSC 142
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Wills, Probate and Administration Law in New South Wales by Geddes, Roland & Studdert (1996 ed)
In the Goods of Morant (1874) LR3P&D 151
In Re Goddard [1951] QWN 46
Caldar v Public Trustee [2003] NSWCA 187
Buchan v Nash [1983] 2 NSWLR 575
Rule v Mallon (2000) 10 BPR 18,005
Helmore, Commercial Law and Personal Property in New South Wales, 10th ed
P.W. Young, Annotated Conveyancing and Real Property Legislation in New South Wales, 3 ed
Halsbury's Laws of Australia
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694
Mayfield v Lloyd-Williams [2004] NSWSC 419
Wentworth v Graham (2003) 57 NSWLR 741
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311
Cherry v Boultbee (1839) 4 My & Cr 442
Perpetual Trustees (WA) Ltd v Equus Corporation Pty Ltd, (Young J, 5/03/98 unreported)
In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144
Courtenay v Williams (1844) 3 Hare 539
Re Melton [1918] 1 Ch 37

PARTIES:
Public Trustee
v
Russell Graham Gittoes aka Russell Caldar

FILE NUMBER(S):
SC 1120/05

COUNSEL:
Plaintiff: L Ellison & J Patey
Defendant: In Person

SOLICITORS:
Plaintiff: Clinch Neville Long Lawyers
Defendant: N/A

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 22 April 2005

1120/05 PUBLIC TRUSTEE v RUSSELL GRAHAM GITTOES aka RUSSELL CALDAR

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff, the Public Trustee, seeks a declaration that the defendant, who is known as Mr Caldar, is a vexatious litigant within the meaning of s 84(2) of the Supreme Court Act. The plaintiff also seeks an order that the defendant not institute any legal proceedings against the plaintiff in any court, and not continue any proceedings already instituted against the plaintiff in any court, without the leave of the Supreme Court of New South Wales.

2 Section 84 of the Supreme Court Act provides as follows:

“ 84 Vexatious litigant

(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.

(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.

(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).

(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

Principles Relating to Section 84

3 In determining whether the conditions for the exercise of jurisdiction under subsection 84(2) have been satisfied, the proceedings to be considered are those instituted by the defendant against the plaintiff in the Supreme Court or any inferior court. No proceedings have been brought in any inferior court. As well as instituting proceedings against the plaintiff, the defendant has instituted proceedings against the “Land and Property Information Centre”. Whilst those proceedings are not irrelevant, and the defendant in his submissions asserted that they were highly relevant, the plaintiff cannot rely upon them to establish the basis for the exercise of jurisdiction under subs 84(2). Nor did it seek to do so. Proceedings which have been instituted by the defendant against the plaintiff in the High Court of Australia are in a like position. Whilst not irrelevant, they cannot be relied upon by the plaintiff as a basis for satisfying the jurisdictional requirements in subs 84(2). The proceedings in the High Court are relevant for the light which they throw upon the proceedings in this Court which were the subject of the applications for special leave to appeal to the High Court.

4 It is not enough for the plaintiff to show that the defendant has habitually and persistently instituted proceedings against it. It must show that the proceedings were instituted without any reasonable ground and were vexatious. In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J discussed the principal authorities in relation to what constitutes vexatious proceedings and concluded (at 491):

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84:

(a) Proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must have been “habitually and persistently” instituted by the litigant.”

5 This passage has frequently been applied, including recently in this Court by Whealy J in Attorney-General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 at [12], by Hoeben J in Attorney-General (NSW) v Betts [2004] NSWSC 901 at [10] and by Patten AJ in Attorney-General v Barr-Mordecai [2005] NSWSC 142 at [2]. I also adopt it. Neither party suggests that I should do otherwise.

6 It may be difficult to determine whether an application made by a party involves the institution of proceedings for the purposes of s 84, or only a step in an existing proceeding. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488, Yeldham J said:

“Section 84 of the

, 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the

institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form.”

7 In Attorney-General v Wentworth, (at 492), Roden J adopted the final sentence of the passage I have quoted. His Honour said in relation to interlocutory proceedings in a pending action, that if such interlocutory proceedings sought substantive relief, they are capable of being regarded as the institution of proceedings for the purposes of s 84, even if they are properly commenced by notice of motion in existing proceedings. That must be so a fortiori if the application seeks substantive relief but is improperly commenced in a current proceeding, or in one already finally determined, when it should have been commenced as a fresh action.

8 In Attorney-General v Wentworth, (at 492) Roden J said of the expression “habitually and persistently”:

“’habitually’ suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist;

‘persistently’ suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.”

9 In Attorney-General v Bhattacharya Whealy J (at [11]) said that this was not a formulation of absolute or universal application and that the concepts of “habitually” and “persistently” were ordinary English expressions which did not require further elaboration.

10 The expression “habitually and persistently” indicates that before an order can be made under s 84, the defendant must have instituted such a number of vexatious proceedings which had no reasonable grounds, that it can be said that the institution of such proceedings has become a habit which the defendant has steadily pursued, particularly in the face of opposition.

11 A distinction may need to be drawn between instituting vexatious proceedings and conducting proceedings vexatiously by introducing scandalous and irrelevant matter. The section is directed to the institution of vexatious proceedings. However, the raising of scandalous and irrelevant matter may be evidence that the proceedings were brought with the intention of annoying or embarrassing the person against whom they were brought, rather than for the purpose of obtaining the relief sought. Hence, the making of scandalous and irrelevant allegations may be evidence that the proceedings which were instituted were vexatious. However the fact that proceedings are pursued in a vexatious manner is not by itself sufficient to attract the provisions of s 84, particularly if there are reasonable grounds for their being instituted. (Attorney-General v Wentworth at 496).

Background to the Litigation

12 Since August 2002, the defendant has instituted numerous proceedings and made numerous applications in the Equity and Common Law Divisions of the Court and in the Court of Appeal. Almost all of the proceedings have been brought against the plaintiff, although in some cases the defendant’s brother, Allan Ramon Gittoes, was also joined as a party to the proceedings. With one minor exception involving a temporary stay of execution of a writ of possession, the defendant has failed in every proceeding he has brought.

13 All the proceedings relate to the estate of the defendant’s late mother, Rachel Isabell Gittoes, who died on 27 April 2001. By her will dated 21 July 1967, she appointed her husband, Harry Victor Gittoes, and her solicitor John Norman Stevens Jackson, as the executors and trustees of her will.

14 Mrs Gittoes’ will provided that in the event of her husband pre-deceasing her, she gave all her real and personal property at the time of her death to her trustee upon a trust for sale, and directed that her trustee should pay out of the moneys to arise out of the sale, her debts, funeral and testamentary expenses, and stand possessed of the residue of the said moneys, or investments for the time being representing the same, and all such parts of her estate as should from time to time be unsold or unconverted, on trust for her sons, Allan Ramon Gittoes and Russell Graham Gittoes, (the defendant), as tenants in common in equal shares.

15 Her estate was sworn for probate purposes to have a value of $450,000 and to consist entirely of a property at 36 Arthur Street, Dee Why.

16 The defendant lived at the property at 36 Arthur Street, Dee Why from 1952 until 17 March 2005, when he was evicted by the Sheriff pursuant to a writ of possession. Notwithstanding that the plaintiff has judgment for possession of the property and that a writ of possession was issued and executed, the defendant reoccupied the property on 11 April 2005. I will return to that matter later in these reasons.

17 After Mrs Gittoes’ death, the remaining executor, Mr Jackson, renounced probate. On 19 July 2001, he executed a renunciation of probate in accordance with form 94 of the Supreme Court Rules. He declared that he had not intermeddled in the estate and that he renounced all right to probate of the will and to all trusts, powers and authorities expressed by the will to be made or given to him. A copy of the document was provided to the office of the Public Trustee by the other beneficiary of the estate, Mr Allan Gittoes. It was not filed with the Court.

18 Section 69 of the Wills, Probate and Administration Act 1898 provides that where any person renounces probate of the will of which the person is appointed executor, or one of the executors, the right of such person in respect of the executorship shall wholly cease. Nonetheless, in Wills, Probate and Administration Law in New South Wales by Geddes, Rowland & Studdert (1996 ed), the learned authors say (at 69.07) after referring to s 69 that:

“Because a renunciation is only effective when filed in court, clearly a renunciation may be withdrawn at any time before filing.”

In the Goods of Morant

In Re Goddard

19 On 5 November 2001, Mr Jackson signed another form of renunciation of probate, this time in favour of the Public Trustee and in accordance with form 105. Subsection 18(1) of the Public Trustee Act, 1913 provides:

“

18 Grant of probate or administration to Public Trustee

(1) The Court may grant probate or letters of administration of any will or estate to the Public Trustee by that name.

20 Pursuant to Part 78 r 26, where the executor renounces probate in favour of the Public Trustee, administration with the will annexed may be granted to the Public Trustee without the consent or citation of any person. (Part 78 r 26 (3)).

21 On 17 December 2001, the defendant lodged in the registry a caveat demanding that no grant or re-seal be made in the estate of Mrs Gittoes without prior notice to him. That month, the Public Trustee filed an application for the grant of letters of administration with the will annexed.

The Proceeding Before Barrett J

22 On 1 May 2002, the plaintiff filed a notice of motion that the caveat filed on 17 December 2001 cease to be in force. That application was heard by Barrett J on 20 May 2002. His Honour made the order sought. In his reasons for judgment his Honour said:

“The caveat is based on grounds which are difficult to understand and, on the basis of what Mr Caldar has said from the bar table this morning, go to mistrust on his part of the bona fides of the Public Trustee. The Public Trustee is a body established by law to provide trustee services in circumstances, in particular, where no-one else is suitably qualified and willing to act and where a gap needs to be filled. This seems to me to be such a case and, as the caveat is not shown to have substance or merit, I make order 1 in the Notice of Motion filed on 1 May 2002.”

23 This was the first proceeding concerning the estate. However, I do not regard it as one instituted by Mr Caldar.

24 The grant of administration with the will annexed was made to the plaintiff on 20 May 2002. On 3 June 2002 the defendant filed a further caveat. As that caveat was filed after the grant of administration it could have no effect.

The First Proceeding Before Austin J

25 On 27 August 2002, the defendant made an oral application to Austin J, who was then the Duty Judge, to, as the defendant put it, “enforce a caveat against the Public Trustee”. That application was stood over until the following day and a solicitor for the Public Trustee appeared. The proceeding was given a file number, 108339 of 2002. After reciting the history of the matter and the fact that as the caveat was filed after the grant it could have no effect, Austin J continued as follows:

“Consequently, Mr Caldar’s oral application to the Court yesterday to “enforce” the caveat is doomed to fail. There is no competent application before the Court now.

Notwithstanding that this is so, I have allowed Mr Caldar to address the Court in an endeavour to identify whether there is any matter upon which it is appropriate for the Court to act or in respect of which Mr Caldar might seek some further advice…..

It appears that Mr Caldar’s principal and ultimate concern is that when the estate is administered, the home at Dee Why will be sold and he will have to find somewhere else to live. …

While one has some real sympathy with Mr Caldar’s position, that concern is not something which gives him, so far as I can see, any cause of action against the Public Trustee as the administrator of his mother’s estate. It is open to him, as Mr Rugless (the solicitor for the Public Trustee) put to me today to negotiate with his brother during the course of the administration of the estate, to endeavour to reach some accommodation either by buying out his brother’s interest or otherwise.

Mr Caldar also has expressed some concerns about the Public Trustee, evocative of Barrett J’s observations, to the effect that he has a mistrust of the bona fides of the Public Trustee. He referred to the renunciation by Mr John Jackson dated 5 November 2001, which is on file. He also provided me with a copy of an earlier renunciation of probate dated 19 July 2001; the earlier document differing from the later one only in that in the later document, Mr Jackson requested the Public Trustee to apply for administration of the estate with the will annexed. … But the submissions he made to me today did not identify, and were not in any way connected with, any plausible or feasible cause of action that he may have against anyone in relation to the estate.

I can see no proper basis for Mr Caldar to make any application to the Court on the basis of what he told me today. It is, of course, open to him to make a proper application, supported by affidavit evidence providing some reasonable grounds for some specific relief, but nothing he said today indicates to me he is in any position to do so.”

26 Thus the proceedings brought by an oral application before Austin J on 27 and 28 August 2002 were found by his Honour to be without merit. I hesitate however to characterise that application as vexatious in an objective or subjective sense. An argument might have been raised, that by merely signing and providing to the beneficiary a copy of the first renunciation, Mr Jackson was precluded by s 69 of the Wills, Probate and Administration Act 1898 from acting further in relation to the estate at all, including by making a subsequent renunciation in favour of the Public Trustee. Such a submission is likely to have failed as being contrary to established authority and a leading textbook on the area. But, objectively considered, I do not consider that it was so manifestly hopeless as to be vexatious. Nor is there evidence that the proceedings were instituted with the intention of annoying or embarrassing the Public Trustee. It does appear that the application was made primarily for the purpose of seeking to delay or prevent a sale of the estate property. But I do not think that in August 2002, that should be regarded as sufficient to make the institution of the proceedings vexatious.

Proceedings in the Court of Appeal and Before Campbell J

27 However matters did not rest there. On 24 December 2002, the defendant filed a summons in the Equity Division, proceedings 12784 of 2002, claiming an order that the grant of letters of administration to the Public Trustee be revoked and that the plaintiff, or the plaintiff and the second defendant (Mr Gittoes), or an appropriate nominee of the plaintiff and the second defendant, be authorised to apply within thirty days for letters of administration with the will annexed of the estate of the late Mrs Gittoes.

28 It seems also that in 2002, on a date which does not clearly appear, the defendant brought proceedings against the Land and Property Information Centre seeking an order that a Real Property Act caveat be re-instated and remain in place.

29 On 17 February 2003, the Public Trustee filed a statement of claim for possession of the property at 36 Arthur Street, Dee Why. The proceedings were filed in the Common Law Division No. 10421 of 2003.

30 On 24 February 2003, the defendant filed a summons for leave to appeal from the decision of Barrett J given on 2 May 2002 in the Equity Division Probate list, 119481/01. That application for leave to appeal was a fresh proceeding by the defendant for the purposes of s 84(2). It was the fourth proceeding commenced by him in relation to the estate, and the third commenced against the Public Trustee. In the draft notice of appeal which accompanied the summons for leave to appeal, the defendant sought an order that the grant of letters of administration to the Public Trustee be revoked. An order was also sought that the Court refer the matter to the Commissioner of the Independent Commission Against Corruption and request a full and open investigation and enquiry into the administration and activities of the Public Trustee. That was an attempt to use the court process for a collateral and illegitimate purpose, and to embarrass or harass the plaintiff. In his summary of argument accompanying the summons for leave to appeal, the defendant alleged that the Public Trustee deliberately withheld evidence from Barrett J, namely, the first renunciation signed by Mr Jackson on 19 July 2001. He contended that the renunciation by Mr Jackson dated 5 November 2001 was procured by the Public Trustee and Mr Allan Gittoes, knowing of the earlier renunciation. It was alleged that the Public Trustee deliberately submitted evidence to the Court and made statements knowing that they were false or misleading in order to influence the Court’s decision in the Public Trustee’s favour. No evidence to support the allegation that the plaintiff deliberately misled the Court has ever been produced.

31 The application for leave to appeal from the decision of Barrett J of 20 May 2002 was heard and decided by Mason P and Stein JA, on 13 March 2003. Mason P, with whom Stein JA agreed, said that it was obvious from what the defendant had told them, and from Barrett J’s judgment, that the point he was seeking to put before his Honour was distrust of the Public Trustee and allegations of bad faith against the Public Trustee. As Mason P said:

“There was no evidence of those matters filed before Barrett J and his Honour was not bound to proceed in response merely to a statement from the bar table alleging bad faith against the Public Trustee.”

32 It is to be regretted that the defendant has not appreciated even after such observations, that allegations of bad faith must be based on evidence and not on the defendant’s mere say-so.

33 In the course of his reasons, Mason P referred to the separate proceedings which Mr Caldar had by then filed for the revocation of the grant of letters of administration. His Honour said that those proceedings would provide an appropriate forum for the ventilation of any application based upon proving unfitness or procedural default.

34 His Honour also said that nothing that Mr Caldar had put before the Court showed that Barrett J had erred in making the order, removing the particular caveat.

35 Finally, Mason P said:

“It seems that this is a matter where it is in the interests of both parties that the estate be administered without further delay. I have a suspicion, but it is only a suspicion, that the claimant is using these proceedings simply to delay the inevitable sale of the estate if it is not possible for a satisfactory arrangement to be made for him to buy out his brother’s interest. For further cost to be spent on litigation that is not directed to the ultimate administration of the estate seems rather pointless and, if costs orders keep being made against the claimant, they will mount up and they will only ultimately diminish the amount that he obtains from his mother’s estate. I would urge the claimant to join with the Public Trustee and his brother in seeing that the estate is administered without further delay.”

36 I do not consider that the application for leave to appeal from the judgment of Barrett J should be regarded objectively as a vexatious proceeding. For the reasons I have previously indicated, there was an available argument in relation to the renunciations of Mr Jackson, albeit not one which the defendant put, and which would be very likely to have failed if it had been put. (Even had it succeeded, it would not have precluded the Court’s appointing the Public Trustee as administrator.) However, I do consider that the proceedings were vexatious in the subjective sense in that they were not brought for a proper purpose, but rather were brought for the purpose of harassing or embarrassing the plaintiff. The improper purpose was attempting to use the proceedings to obtain an investigation by the Independent Commission Against Corruption into the affairs of the plaintiff. The harassment appears from the terms of the defendant’s summary of argument to which I have referred. Further, subsequent events have shown that at least part of what Mason P then suspected the defendant was seeking to do, namely to delay the inevitable sale of the estate, was indeed his purpose.

37 The application by the defendant for revocation of the grant of letters of administration came before Campbell J for hearing on 28 April 2003. (Proceedings 121784 of 2002). There was also before Campbell J on that day an application by the Public Trustee for an order that the defendant pay the costs of the application before Barrett J on 20 May 2002. There was also before him an application brought by the defendant to reinstate a caveat lodged in respect of the property at 36 Arthur Street, Dee Why pursuant to the Real Property Act.

38 On 28 April 2003, Mr Caldar sought an adjournment of all three matters. The grounds for the application for adjournment included that Mr Caldar had heard that there was to be a Parliamentary Inquiry into the Public Trustee and he wished for that inquiry to run its course. Such a stated ground for seeking an adjournment reinforces the suspicion that the defendant was using the proceedings to delay the inevitable sale of the estate. There was another ground upon which the adjournment was sought to which it is not necessary to refer in these reasons. The application for an adjournment was refused. Campbell J said that the ordinary rule that costs should follow the event, ought to apply to the proceedings before Barrett J. At that point Mr Caldar withdrew. His Honour ordered that the defendant pay the costs of the application before Barrett J on 20 May 2002. His Honour’s reasons then continue:

“I then move to Mr Caldar’s equity proceedings and the application that the Real Property Act caveat be reinstated and remain in place. No evidence has been relied upon and no submission put concerning that application. It is, accordingly, dismissed.

…

The remaining application is an application which is 121784/02 in the Probate List brought by Mr Caldar and seeking that the grant of letters of administration with the will annexed of the late Rachel Isabell Gittoes made to the Public Trustee on 20 May 2002 be revoked, together with certain consequential relief. That matter having been called on for hearing, and Mr Caldar having elected by his withdrawal from the Court to place no evidence before the Court, and to make no submissions to it, that matter is similarly dismissed.”

39 I infer from the fact that the defendant was not prepared to proceed with his application that the grant of letters of administration to the Public Trustee be revoked, that he did not genuinely consider that he was entitled to such an order. Rather the proceedings were brought in an attempt to delay the sale of the property. I consider those proceedings were vexatious and brought without reasonable grounds.

New Proceedings in the Court of Appeal

40 Notwithstanding that the defendant had withdrawn from the hearing before Campbell J, had presented no evidence and had made no submission in support of the application to revoke the grant, he appealed from the decision of Campbell J of 28 April 2003. This was the institution of a fresh proceeding in the Court of Appeal being file no. CA 40345 of 2003. That appeal was manifestly hopeless and itself vexatious. It could only be based upon the refusal of Campbell J to grant an adjournment of the proceedings. The grounds of appeal included the scandalous allegation that Campbell J had not kept an open mind and was unduly influenced by the Public Trustee, and that his Honour “did not take into account documentary evidence before him showing the Public Trustee failed to act in accordance with the law and has made false and misleading statements and affidavits to the Court.” In fact, Campbell J’s reasons disclosed that no evidence was adduced by the defendant before his Honour. The allegations in the grounds of appeal against the Public Trustee were similarly scandalous. I infer that they were made for the improper purpose of harassing and seeking to embarrass the plaintiff. By filing the notice of appeal the defendant instituted a further vexatious proceeding, without reasonable grounds.

41 On 5 May 2003, the defendant filed a notice of motion in the Court of Appeal seeking an order that the Public Trustee be restrained from taking any further action in administering the estate. The notice of motion also sought other orders including that the Public Trustee provide the defendant with copies of records including all minutes of meetings of the Probate Users Group (Committee) of the Supreme Court from 1990. I do not think that this application should be characterised as the institution of a fresh vexatious proceeding. It was however a hopeless interlocutory application in the existing proceeding. On 19 May 2003, it was dismissed by Santow JA. His Honour refused the stay which was sought. The Public Trustee proffered an undertaking not to sell the property at 36 Arthur Street, Dee Why or to issue a writ for possession pending disposition of the defendant’s appeal from the judgment of Campbell J. That was a sufficient basis for the refusal of the stay which was sought. However, Santow JA added that as presently advised there was nothing before him which would indicate that the grounds of appeal were likely to succeed. Dealing with the application for the provision of minutes of meetings of the Probate Users Group of the Supreme Court Santow JA said that that claim:

“… is put on the basis that the claimant has a suspicion giving rise to an apprehension of bias based upon the supposition that Campbell J is a member of that group. Even if that were true that he were such a member, it could not give rise of itself to any reasonable apprehension of bias and is, in any event, not a matter which could or should be the subject of injunctive order. The suggestion to the contrary is absurd and quite without foundation.”

42 I interrupt the chronology here to say that on 12 May 2003 the defendant filed an application under the Family Provision Act. That proceeding was ultimately disposed of on 27 October 2004 by Master McLaughlin. The proceedings were dismissed. The plaintiff does not suggest that the Family Provision Act proceedings were vexatious. Indeed they appear to me to have been the only proper proceedings for the defendant to have brought.

43 On 6 June 2003, in proceedings CA 40345 of 2003, the defendant filed notice of a motion for an order setting aside the judgment of Santow JA. On 7 July 2003 the Court of Appeal consisting of Handley, Ipp and Tobias JJA, dismissed the appeal from Campbell J as incompetent and dismissed the motion to discharge the orders of Santow JA. (Caldar v Public Trustee [2003] NSWCA 187). In giving his reasons for dismissing the appeal as incompetent, Handley JA, with whom Ipp and Tobias JJA agreed, said that that course would not prejudice the right of Mr Caldar, if so advised, to seek leave to appeal from the decision of Campbell J and an extension of time for that purpose. His Honour continued:

“That is not intended to convey any indication to Mr Caldar that there are realistic prospects of obtaining leave to appeal from Campbell J but he is legally free to pursue that remedy. It is not the task of courts to give legal advice to litigants but to decide cases properly brought before them.”

44 No application for leave to appeal from the decision from Campbell J was filed. Instead, on 29 July 2003, the defendant applied to the High Court for special leave to appeal from the judgment of the Court of Appeal of 7 July 2003. That application was ultimately withdrawn on 1 April 2004.

45 In the meantime the defendant had launched a plethora of new proceedings directed to the same ends. These were prompted by the Public Trustee obtaining judgment by default in proceedings CL 10421 of 2003 for possession of the Dee Why property. (See para 29 above). The judgment was that the defendant give the plaintiff possession of the land at 36 Arthur Street, Dee Why. The judgment was given on 24 June 2003 and took effect on that day.

Second Proceedings Before Austin J

46 On 9 July 2003, the defendant instituted new proceedings in the Probate list of the Equity Division No. 3685 of 2003. On this occasion he claimed an order that the Public Trustee be restrained from administering the estate until an appeal before the High Court had been determined by that court. The appeal referred to was the application for special leave to appeal from the Court of Appeal’s decision of [2003] NSWCA 187. This summons was dismissed with costs by Austin J on 29 August 2003. His Honour observed that the principal purpose of the summons was to achieve a stay of the Common Law possession proceeding no. 10421 of 2003 in which the Public Trustee had obtained judgment for possession. His Honour, after reciting the history of the matter, concluded that the defendant had not succeeded in identifying any arguable grounds of appeal from the Court of Appeal judgment of 7 July. His Honour also observed that there was nothing to suggest that there was any basis for resisting the due process of law with respect to the possession proceedings. In referring to the defendant’s summary of argument filed in the High Court, Austin J observed that nothing advanced in those documents provided any inkling of any arguable ground for a successful appeal if special leave were to be granted. As I have observed, the application for special leave was, in due course, withdrawn. The claim before Austin J was manifestly hopeless and vexatious.

47 On 13 October 2003, the defendant filed a summons for leave to appeal from the judgment of Austin J. That was also a hopeless and vexatious proceeding. It was dismissed by the Court of Appeal on 2 March 2004 when the Court observed that the application for leave had effectively been abandoned.

First Proceeding Before Master Macready

48 The next proceeding instituted by the defendant was filed in the Equity Division on 3 November, 2003 (proceedings no. 5557 of 2003). On the same day a writ of possession issued in the common law proceeding 10421 of 2003 (in which judgment for possession had been obtained on 24 June 2003). I do not know which occurred first. In the new proceeding brought in the Equity Division on 3 November 2003, the defendant sought an order that the Public Trustee’s grant of letters of administration be “withdrawn” and that caveat 8908798 be reinstated. This was in substance the same relief as had been sought in proceedings nos. 121784 of 2002 and 5842 of 2002 which had been dismissed by Campbell J. The summons also sought an order that the Public Trustee return to the plaintiff the title deeds to the deceased’s estate. There was also a claim for damages.

49 By notice of motion filed in the same proceedings on 24 November 2003, the defendant sought to amend the relief, inter alia, to claim that the Public Trustee’s statement of claim in common law proceedings 10421 of 2003 be dismissed. Those were proceedings in which the Public Trustee had already obtained judgment, a writ of possession had been issued, and in respect of which Austin J had observed two months earlier that there was no basis for resisting the due process of law with respect to the proceedings. On 5 December 2003 Master Macready granted leave to the defendant to amend the summons as sought in the notice of motion of 24 November 2003, but dismissed proceedings 5557 of 2003 as an abuse of process. The proceeding was also vexatious.

Further Proceedings in the Court of Appeal

50 On 11 February 2004 the defendant instituted a new proceeding in the Court of Appeal being proceeding CA 41178 of 2003. He sought leave to appeal from the decision of Master Macready of 5 December 2003. That application was dismissed by the Court of Appeal on 2 March 2004. The Court observed that there had been no demonstration of any error in the Master’s reasoning or the orders he made. The application to the Court of Appeal in CA 41178 of 2003 was also vexatious.

51 I pass over a subsequent notice of motion which purported to seek a stay of the Court of Appeal proceedings 41178 of 2003 and which was itself dismissed as an abuse of process.

Proceedings in the Common Law Division Before Greg James J

52 Two days after filing the summons for leave to appeal from Master Macready’s decision, the defendant instituted proceedings in the Common Law Division being proceedings 10379 of 2004. In those proceedings, the defendant sought an order that the grant of letters of administration to the Public Trustee be deposited in the registry until the proceedings commenced in the Court of Appeal on 11 February 2004, (file no. CA 41178 of 2003) to revoke that grant had been determined.

53 On 18 March 2004 Greg James J dismissed the summons in CL 10379 of 2004 and ordered the present defendant to pay the present plaintiff’s costs. That proceeding was also vexatious.

54 His Honour also dealt with another proceeding the defendant had instituted in the Common Law division, being proceeding no. 10443 of 2004. This proceeding had been commenced on 19 February 2004. The summons sought an order that “the Court recognise and uphold the right of the plaintiff to representation, either in person or by counsel, in any matter or proceeding in the court relating to the plaintiff”. This part of the summons was also dismissed by Greg James J on 18 March 2004.

55 His Honour observed that the plaintiff had appeared for himself consistently throughout the proceedings and there was no need for any order to that effect.

56 His Honour attempted to assist the defendant by advising him that he would attempt to have arrangements made for the defendant to obtain pro bono legal aid in an attempt to stop him from launching applications or actions which would be of little utility to him and which were doomed to fail and to have advice offered to him, so that if there should be some such appropriate proceeding or cause that he should launch, then he could be advised what it might be and how that might be done. The evidence does not disclose what was the outcome of that attempt. Thereafter the defendant instituted numerous further proceedings, all of which have failed, as they were bound to do. With one exception and one qualification, the defendant has at all times been self-represented. The exception is that in the Family Provision Act proceedings, which were heard on 27 October 2004 before Master McLaughlin, the defendant was for a time represented by counsel. On the hearing of the defendant’s Family Provision Act application, counsel informed the Court that the defendant had withdrawn his instructions. The defendant thereafter represented himself in those proceedings. Before me, the defendant explained in submissions that counsel had declined to put certain arguments relating to his rights as tenant in common and person in possession of the Dee Why property to which I will refer later in these reasons. Counsel was right not to do so. The arguments are misconceived.

57 The qualification to the statement that the defendant has at all times represented himself, is that in the hearing before me an application was made by a Mr Green to appear for the defendant. Mr Green advised me that he had legal qualifications but was not qualified to appear for the defendant. I permitted him to sit at the bar table with the defendant and provide assistance to the defendant in the presentation of his case. He appeared to provide such assistance.

58 Other orders sought in the defendant’s summons filed in proceedings in the Common Law Division 10443 of 2004 were that the Court should set aside the Public Trustee’s originating process of appointment for hearing in the Family Provision Act claim in the Equity division in proceedings no. 2748 of 2003. To file an originating process in the Common Law Division to set aside the appointment for hearing in a different action in the Equity Division, is a step calculated to cause confusion and delay. What prompted this claim was that three days earlier, that is on 16 February 2004, Registrar Wearne in the Equity Division had directed that the Family Provision Act claim remain in the Master’s list. It was thus likely to receive a hearing date. The defendant was seeking to delay the hearing. Again this conduct is consistent with his using the fact that court proceedings were on foot to delay the inevitable sale of the property. This is a collateral and improper purpose which rendered the proceedings no. 10443 of 2004 in the Common Law Division vexatious.

59 The next claim which was made in those proceedings was that the Court “protect or release into the custody of the plaintiff, the property of the deceased fraudulently seized by the Public Trustee until the plaintiff’s appeals before the Court of Appeal (file nos. 40762/03 and 41178/03) are determined by that court”. This claim was dismissed by Greg James J on 18 March 2004. In relation to the claim to set aside the appointment for hearing in the Family Provision Act claim, his Honour ordered that the summons be transferred to the Equity Division so that the matter might be listed before the Equity duty registrar.

60 The allegation in the summons that the Public Trustee had “fraudulently seized” the plaintiff’s property was unfounded. It is symptomatic of the defendant’s willingness to garnish his claims for relief which he had previously failed to obtain, with unsupported allegations of misconduct. Whether the defendant liked it or not, the Public Trustee had been appointed as administrator of the estate. The defendant’s application to revoke that appointment had been dismissed. The real and personal estate of the deceased was vested in the Public Trustee pursuant to s 44 of the Wills, Probate and Administration Act 1898. It had a duty to take possession of the deceased’s estate. There was no basis upon which the defendant could properly allege that the plaintiff had “fraudulently seized” the deceased’s property. The allegation was calculated to embarrass and harass the plaintiff. It is a further indication that the proceedings CL 10443 of 2004 were vexatious.

A New Application in the Court of Appeal

61 On 14 April 2004, the defendant filed a notice of motion in the Court of Appeal proceedings no. 41178 of 2003 for a “stay of proceedings” until an appeal to the High Court had been determined. The proceedings which the defendant sought to stay was the application for leave to appeal (which had already been dismissed) from the decisions of Austin J and Master Macready. Austin J had dismissed the defendant’s summons seeking an order restraining the Public Trustee from administering the estate. Macready M had dismissed the summons seeking the “withdrawal” of the grant of letters of administration and the dismissal of the Public Trustee’s statement of claim in the Common Law proceedings no. 10421 of 2003. The application was misconceived. The Court of Appeal had not ordered anything which needed to be stayed. However, the further application, although no doubt vexing, was not the institution of a new proceeding. The application was dismissed by Registrar Schell on 10 May 2004 as an abuse of process.

High Court Proceedings

62 On 30 March 2004, the defendant filed an application in the High Court (proceedings S109 of 2004). He applied for special leave to appeal from the Court of Appeal’s decision of 2 March 2004. In support of that application the defendant alleged bias and unconscionable conduct by the Court of Appeal. The orders which he sought included an order that the High Court recommend that a Parliamentary Committee of Inquiry be established to investigate the Public Trustee’s theft of the assets of the dead by leave of the New South Wales judiciary. The defendant did not proceed with that application until 1 February 2005, when he filed a summons for its reinstatement to the Court’s list. On 16 March 2005 Gummow J dismissed the summons for reinstatement.

New Common Law Proceedings Transferred to Equity: 5057 of 2004

63 On 29 June 2004 the defendant filed new proceedings in the Common Law Division, No. 11989 of 2004. In those proceedings he sought an order that “the Public Trustee give possession of his ‘equal share’ in the land as devised to him in a testamentary disposition of his Mother.” He sought leave to issue a writ of possession forthwith for his “’equal share’ in the land devised to him in the testamentary disposition of his Mother.” He sought leave to register himself as the legal owner of that equal share.

64 Although the statement of claim is not easy to follow, it appears to be based upon two chains of reasoning. First, that as the person in possession of his mother’s land, he is the person prima facie entitled to legal ownership. Secondly, that under his mother’s will, the land was devised to him and his brother as tenants in common, that as a result he is a beneficial owner of the land as a tenant in common with his brother, and that thereby he is entitled to hold the legal fee simple as tenant in common with his brother. He also says that the property is his domicile of choice and domicile of dependence, but this allegation has no legal significance.

65 The claim was amended to elaborate on these grounds. In the claim as amended it was also alleged that when filing for letters of administration, the Public Trustee deliberately withheld from the Court that the named executor, Mr Jackson, had signed a notice of renunciation “in blank”. It was alleged that the Public Trustee induced Mr Jackson to sign a second notice of renunciation in favour of the Public Trustee, in contravention of the Supreme Court Rules. Reference was made to s 69 of the Wills, Probate and Administration Act 1898 and to the Supreme Court Rules Part 78 rules 14, 37, 38 and 39. Reliance was also placed upon ss 58, 60, 62 and 63 of the Supreme Court Act.

66 On 14 August 2004, the Public Trustee filed a motion for these proceedings to be transferred to the Equity Division. On 14 September 2004, Assistant Registrar Howe made that order. The proceedings were given a new number in the Equity Division, no. 5057 of 2004.

67 This statement of claim reflected two of the principal submissions which the defendant made before me as to why he was entitled to bring successive proceedings to protect his possession of the property which forms part of the estate. He says that possession of the property is prima facie evidence of seisin. That proposition however does not avail him. Possession does not give the person in possession title against the true owner of the property. The Public Trustee is the legal owner of the property by virtue of the grant of letters of administration to it. The property is vested in it by s 44 of the Wills, Probate and Administration Act 1898. By giving a notice of transmission the Public Trustee is entitled to be registered as proprietor of the property, (Real Property Act, s 93). I infer that it has done so.

68 The second submission, also made to me, involves the steps set out in paragraph 64 above. The defendant says that under the will of his mother he has a beneficial interest in the land at 36 Arthur Street, Dee Why as tenant in common in equal shares with his brother. He says, that he is entitled to the legal ownership of the land and entitled to be registered as proprietor of an estate as tenant in common in equal shares with his brother.

69 These submissions are also misconceived, although they show a subtlety of reasoning that suggests the defendant is capable of understanding legal propositions. The deceased by her will, left her estate to her trustees on a trust for sale. The debts, funeral and testamentary expenses of the estate are to be paid from the proceeds of sale of the deceased’s property. The residue of the proceeds of sale and such parts of the estate as are unsold are to be held on trust for the defendant and his brother as tenants in common in equal shares. The defendant submitted that only land could be held on a tenancy in common in equal shares. He submitted that because the will directed that the deceased’s estate be held upon trust for him and his brother as tenants in common, there could be no effective trust for sale. He cited no authority for these propositions, although he referred to s 27 of the Conveyancing Act 1919 (NSW), which does not support him. That section refers to ‘property’ held in co-ownership where a tenant in common of equitable estate acquires the legal estate. Under s 7 of the Conveyancing Act, except where the contrary intention appears, “property” includes real and personal property including any chose in action.

70 Personal property as well as real property can be held in co-ownership. That co-ownership is often described as either a tenancy in common or a joint tenancy. For example, s26 of the Conveyancing Act applies to both real and personal property and creates a presumption that where property is conveyed to two or more persons together beneficially, they hold as tenants in common. (See for example Buchan v Nash [1983] 2 NSWLR 575; Rule v Mallon (2000) 10 BPR 18,005; commentary to s 26 of the Conveyancing Act in P.W. Young, Annotated Conveyancing and Real Property Legislation in New South Wales, 3 ed, p 97). However it is probably correct to describe co-ownership of personal property as having the incidents or attributes of tenancies in common or joint tenancies, rather than as being held on such “tenures”. (Helmore, Commercial Law and Personal Property in New South Wales, 10 ed p.58). As is stated in the Introduction section to Ownership of Personal Property in Halsbury’s Laws of Australia, Vol 19 para 315 – 290 “As in real property, co-ownership of personal property generally may be joint or common, with the same incidence or attributes as joint tenancies and tenancies in common”.

71 However, it does not follow that the trust for sale can be ignored. If Parliament can describe personal as well as real property as being held by two or more persons as tenants in common, the draftsman of the will can surely do so.

72 In any event, the estate is not fully administered. The Public Trustee has incurred expenses, which have to be met from the estate. He is empowered to sell by the terms of the will and by statute, (Conveyancing Act, s153.) Until the estate is administered and the administrator assumes the office of trustee, as distinct from administrator, no beneficiary holds a proprietary interest in any specific asset of the estate. (Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694). At present, the beneficiaries’ rights are rights to compel due administration of the estate. The defendant does not have a proprietary interest in the Dee Why property.

73 The defendant has no right to compel the administrator to transfer the title to the property to him. The Public Trustee is required by the terms of the will to sell the property and, after deducting sums for the payment of the deceased’s debts, funeral and testamentary expenses and the costs and expenses of the administration, to hold the balance of the proceeds of sale on trust for the defendant and his brother as tenants in common in equal shares.

74 In support of his argument the defendant referred to an observation by Santow JA in his judgment of 19 May 2003 in which the defendant sought an injunction to restrain the Public Trustee from taking further action to administer the estate. Santow JA said:

“Relative to the injunctive relief sought is that the claimant is currently in occupation of the relevant property and has a half interest with his brother in the estate, and thus in that property.”

75 The defendant seized on those remarks as confirming his submission that he currently has a beneficial interest in the real property. Santow JA was not addressing the question of whether the beneficiaries of the deceased’s will had a proprietary interest in the assets of the estate whilst the estate was still unadministered. His observations were ex-tempore and short-had remarks which merely reflected the fact that the only valuable asset of the estate is the property.

76 The second substantive claim made in proceedings 5057 of 2004, (formerly 11989 of 2004), was that the Public Trustee’s appointment as administrator was invalid because of the earlier renunciation of probate by Mr Jackson. That argument was one which might have been advanced before Austin J on 28 August 2002, or before the Court of Appeal on the application for leave to appeal from the judgment of Barrett J on 13 March 2003, or before Campbell J on 28 April 2003. Had it been raised, it would have failed. The defendant was too late in seeking to ventilate the issue again.

Court of Appeal Proceedings Relating to the Transfer of Proceedings from Common Law to Equity

77 The defendant appealed from the order of Assistant Registrar Howe directing that the proceedings in the Common Law Division CL 11984 of 2004 be transferred to the Equity Division. That appeal was filed on 28 September, 2004 in a new proceeding in the Court of Appeal no. 40916 of 2004. On the same day as filing the notice of appeal the defendant filed a summons for leave to appeal from the Registrar’s decision. On 27 October 2004, he filed a notice of motion in the Court of Appeal proceedings 40916 of 2004 to restrain the Public Trustee from proceeding with the administration of the estate until after the disposition of the appeal. This, it is to be borne in mind, was an appeal against an administrative order transferring proceedings from one Division to another. Such a proceeding and such an application made in it, were plainly vexatious. The application for leave to appeal was dismissed by Registrar Schell on 8 November 2004 as an abuse of process.

78 On 10 November 2004 the defendant filed a notice of motion to review the decision of Registrar Schell of 8 November, 2004. That notice of motion was dismissed on 6 December 2004 as an abuse of process. These applications show that the defendant was determined on a course of delay and obstruction to the proper determination of the issues between the parties.

Disposition of Proceeding 5057 of 2004

79 On 11 November 2004 the Public Trustee moved to strike out the proceedings. On 19 November 2004 the defendant filed a motion that the Public Trustee’s motion be disallowed. In that motion he sought orders that the Public Trustee be “deseised (sic) of the land at 36 Arthur Street, Dee Why lawfully belonging to the applicant’s deceased mother on the grounds the Public Trustee committed perjury and fraud to obtain seising (sic), and to continue retain seising (sic), and is in wilful default of the Statutes of the State, namely,

(a) Part 1 Sections 5(1), 20, 21 and 23(2) of the Probate Act.
(b) Part 2 Sections 19, 19A, 27 and 34 of the Conveyancing Act
(c) Part 12 Section 100 of the Real Property Act ”

80 On 26 November 2004 Master Macready dismissed the statement of claim. The learned Master said that the defendant’s claim was “plainly inappropriate where the Public Trustee has to administer an estate. Mr Caldar at this stage has no interest in the land, has no right to seek an order for a writ of possession, nor has be any right to any legal interest or equitable interest in the land pending the administration of the estate. In these circumstances I do not see that there is any claim which he can bring at this stage and accordingly I dismiss the proceedings and order the plaintiff to pay the defendant’s costs.”

81 The Master was plainly right. The defendant’s claim was hopeless. However the defendant’s attitude to the claim is manifested in the remainder of the judgment which was transcribed:

Caldar: Thank you sir. Could I have a copy of the judgment as soon as possible, please?

Master: Certainly. We will send it straight to you.

Caldar: Are we finished now?

Master: Yes. Finished now.

Ellison: Thank you Master.

Caldar: Don’t thank him. I haven’t finished.”

82 Nor had he. On 6 December 2004 the defendant filed an appeal to the Court constituted by a judge from the Master’s decision of 26 November 2004. That appeal has not been determined. There are twelve grounds of appeal. It is not necessary to set them all out. They include allegations of corrupt and criminal conduct for which there is no evidentiary foundation. The defendant simply refuses to accept that he is wrong. He treats each rejection of his claim as evidence of a conspiracy between the Public Trustee and the judges of the Court against him.

New Proceeding in the Common Law Division

83 The day before Master Macready was to hear the Public Trustee’s application for summary dismissal of the proceedings which had started as proceedings in the Common Law Division no. 11989 of 2004 and had become proceedings in the Equity Division no. 5057 of 2004, the defendant filed yet another proceeding in the Common Law Division. This proceeding, no. 13922 of 2004, was filed on 25 November 2004. It was commenced by summons. A variety of relief was sought in the summons. In substance it sought the same orders for possession for the property at 36 Arthur Street, Dee Why and orders that the grant of letters of administration to the Public Trustee be revoked as were sought in the proceedings to be heard the next day by the Master. This again was plainly vexatious. The defendant had embarked on a determined course to ensure that no matter what was next decided by the Court, there would remain some other proceeding, which was still to be determined, which could delay the sale of the Dee Why property.

84 Unsurprisingly, this proceeding was also transferred to the Equity Division and became proceeding no. 1401 of 2005 in the Equity Division. It has also been listed for hearing before the Duty Judge on 27 April 2005, together with the appeal from Master Macready’s decision of 26 November 2004.

Family Provision Act Proceedings

85 I again interrupt the chronology to refer to the defendant’s proceedings under the Family Provision Act. These were heard by Master McLaughlin on 27 October, 2004. Initially, the defendant was represented by counsel, but counsel’s instructions were withdrawn. According to the uncontradicted evidence of the plaintiff’s solicitor, after counsel withdrew, the defendant refused to make himself available for cross-examination on his affidavit. Following that refusal, the Master dismissed the proceedings. Reasons were given ex-tempore, but no transcript of those reasons has been made available. A holding summons was filed in the Court of Appeal on 4 November 2004 in proceedings numbered CA 40916 of 2004. The holding appeal would by now have lapsed.

86 It has not been suggested that the defendant’s Family Provision Act proceeding was vexatious. Indeed, on the material which the defendant has advanced it may have had merit. According to the defendant’s evidence, he lived with his mother in the property from 1952 until her admission to a nursing home in 1996. Thereafter he continued to care for and maintain the property. There is evidence in the form of a statutory declaration from a Ms Rosina Ryan, who knew the deceased for forty two years, that from 1986 the defendant provided care for his mother in her home and that the deceased made a number of statement to the effect that she wanted the defendant to keep the home, that she did not want the home sold, that she wanted to give it to him and that she wanted to change her will. Of course the deceased did not change her will. The expression of such wishes would be a relevant circumstance to a claim under the Family Provision Act. (Mayfield v Lloyd-Williams [2004] NSWSC 419 at [127]). However, independently of that Act, the mere expression of such an intention does not give the defendant any interest in the property. He is entitled as a beneficiary to a one half share in the estate of his late mother. No claim has been brought by the defendant that he is entitled to the property at 36 Arthur Street, Dee Why except pursuant to the will of his mother.

Applications to Stay Execution of the Writ of Possession

87 It may be recalled that a writ of possession had been issued in proceedings CL 10421 of 2003. On 30 November 2004, the defendant instituted another proceeding in the Common Law Division which was numbered 13973 of 2004. The proceedings were commenced by summons and sought a stay of execution of the Public Trustee’s writ of possession in CL 10421 of 2003. Seeking a stay of a writ of possession is not in itself a vexatious course of conduct. There may well be good reason why the writ should be stayed to permit the occupier of land to arrange his or her affairs. However this was not such a case. The stay was sought until the Court had:

“heard and redressed the following issues now pending in the Court,

(a) The Court’s default of the Statutes of the State,

(b) The Public Trustee’s unlawful possession of the deceased’s land, and

(b) (sic) The Public Trustee’s fraud, perjury and perverting the course of justice.”

88 The application was dealt with by Hidden J on 13 December 2004. The application was dismissed. His Honour’s reasons were short and to the point:

“This application, like all those which have preceded it, appears to be based upon Mr Caldar’s misapprehension of the terms of his mother’s will which clearly require the sale of that property and the distribution of the proceeds between him and his brother. Nothing Mr Caldar has raised conveys to me that there would have been any arguable defence to the possession taking place and I see no basis upon which the writ could properly be stayed.”

89 On 24 December 2004, the defendant filed a summons in the Court of Appeal for leave to appeal from the decision of Hidden J. That application is numbered CA 41204 of 2004. On 17 January 2005, the defendant filed a motion in that proceeding to stay the administration of the estate. I have lost count of how many such applications the defendant has made. The motion for a stay of the administration of the estate was heard by Tobias JA on 19 January 2005. His Honour explained very clearly why, in accordance with the deceased’s will, and by the Public Trustee’s incurring of expenses in the administration of the estate, and having regard to the wishes of the other beneficiary, Mr Allan Gittoes, the property had to be sold. After carefully reviewing the arguments put before him, his Honour concluded that the appeal from Hidden J was “quite hopeless” and unarguable.

90 In the course of his reasons for judgment of 19 January 2005, Tobias JA succinctly made a number of points which the defendant refuses to accept. One (at page 10 of the judgment) was that:

“The simple fact is that the debts of the estate have to be paid and if the only way of achieving that requires the sale of the property, then there is clear power given by the will to the Public Trustee to sell the property for the purposes of paying the debts of the estate and dividing the balance of the proceeds of sale equally between the two beneficiaries who are entitled thereto.”

91 Tobias JA also recorded a submission of the defendant in the following terms:

“… the claimant asserts that as a consequence of the provisions of the Trustee Act 1925 this Court has no power to grant letters of administration with the will annexed to the Public Trustee and that only a testator or testatrix is entitled to appoint the administrator of his or her estate and that if the nominated trustee or executor has pre-deceased the testator or otherwise has renounced probate, then the Court can only appoint a person as administrator with the consent of the beneficiaries.

Accordingly, he submits that the Public Trustee was wrongly appointed and has no power to evict him from the property and to sell the property for the purpose of distributing the net proceeds of sale. It would appear from what I am told from the Bar table that this is an argument that the claimant has advanced on other occasions before the court in various pieces of litigation and on each occasion such a submission has failed. In any event it is clear that under the Wills Probate Administration Act the Public Trustee was entitled to letters of administration with the will annexed of the estate of the deceased and, in any event, that is an issue that has already been determined between the parties including, so I am told, in this Court.”

92 This same submission was repeated by the defendant before me. He said that the only ground on which he contended that the Public Trustee was not lawfully appointed as administrator, was by reason of the provisions of the Trustee Act. He referred to subs 6(12) of the Trustee Act 1925. That section is to be found in Part 2 Division 1 headed “Appointment, retirement, disclaimer and ceasing to be an executor”. Section 6 deals with the appointment of new trustees by persons nominated for that purpose by the trust deed, or by the surviving trustee, or the legal representative of the last surviving trustee. (s 6(4)). In that context, it is unsurprising that s 6(12) provides:

Nothing in this section shall give power to appoint any person as an executor or administrator.”

93 The defendant also referred to s 70 of the Trustee Act. That section is in Division 1 of Part 3 which is headed “New Trustees and Vesting Orders”. Section 70 deals with the appointment of new trustees by the Court. Subsection 70(9) provides that:

Nothing in this section shall give power to appoint an executor or administrator.”

94 The fact that neither of those sections of the Trustee Act gives power to the Court to appoint an executor or administrator, does not mean that the power is not conferred elsewhere. All that subsections 6(12) and 70(9) provide is that the power to appoint an executor or administrator is not to be found in those sections. The general power of the Court to appoint executors and administrators is, as Tobias JA said, to be found in the Wills, Probate and Administration Act, in particular, ss 33, 40, 63 (which is not presently relevant), 74 and 75.

95 The defendant’s riposte was that according to the preamble to the Trustee Act 1925, it was an Act, amongst other things, to “amend the Wills, Probate and Administration Act 1898”. His submission therefore was that there was an implied repeal of ss33, 40, 63, 74 and 75 of the Wills, Probate and Administration Act by subs 6(12) and 70(9) of the Trustee Act. This is patently absurd. The Trustee Act did effect amendments to the Wills, Probate and Administration Act. (see s 105). However it did not amend those sections. Subsections 6(12) and 70(9) are carefully drawn so as to ensure that the powers of appointment of executors and administrators are not dealt with by those sections.

96 In any event, there is a further specific power to grant probate or letters of administration of any will or estate to the Public Trustee by that name, in s 18 of the Public Trustee Act, 1913.

97 On 24 January 2005, the defendant filed a summons in the Court of Appeal seeking leave to appeal from the decision of Tobias JA. This proceeding was numbered CA 40064 of 2005. On 11 April 2005 it was struck out by Registrar Schell as an abuse of process.

98 At this stage, therefore, there was no order restraining the Sheriff from executing the writ of possession. However on 11 February 2005, the defendant filed a summons in the Common Law Division in the proceedings 10421 of 2003. These were the proceedings commenced by the Public Trustee in 2003 in which it sought and had obtained judgment for possession. The summons filed by the defendant sought an order staying execution by the Sheriff of a notice to vacate the premises at Dee Why. On 14 February 2004, Greg James J dismissed that application with indemnity costs. In my view, it was a further vexatious proceeding instituted by the defendant.

99 The next day, the defendant filed another notice of motion in the Common Law Division, proceedings no. 10421 of 2003. It sought that the defendant:

“be granted the right to negotiate to purchase from the Public Trustee the equal share of the other beneficiary in the land at 36 Arthur Street, Dee Why”.

100 I interpolate that Austin J, in his judgment of 28 August 2002 in proceedings 108339 of 2002, referred to the submission of the solicitor for the Public Trustee at that hearing that it was open to the defendant to negotiate with his brother during the course of administration of the estate, to endeavour to reach some accommodation either by buying out his brother’s interest or otherwise. (See para 25 above). The notice of motion filed on 15 February 2005 seeking the grant of such a “right” was, to say the least, audacious. The notice of motion again sought a stay of execution of the notice to vacate. On this occasion, the defendant had some success. It is the only success he has had in any of the applications he has brought. Greg James J granted a stay of execution of the writ for 14 days upon certain conditions. The precise terms of his Honour’s orders were not tendered in evidence before me. However in a subsequent judgment of Tobias JA, the conditions were described as including one which required the defendant to obtain a binding commitment from a financier that would enable him to meet the expenses of the Public Trustee in relation to its administration of the estate of the deceased, and to provide a sum sufficient to purchase his brother’s half interest in the residue of the estate in the sum of approximately $300,000 to $350,000. When the matter came back before Greg James J on 3 March 2005, the conditions of the stay had not been met. His Honour dissolved the stay. His Honour said that it had been a condition of a stay that the defendant enter into a binding commitment, but that at best the defendant had obtained what had appeared to be almost an advertising style rote letter from the financier or mortgage broker. His Honour said:

“This is not a genuine attempt to comply with the conditions as I laid them down.”

101 On 7 March 2005, the defendant instituted new proceedings in the Court of Appeal, being proceeding CA 40141 of 2005. He sought leave to appeal from the decision of Greg James J of 3 March 2005. He also filed a notice of motion seeking a stay to prevent the Public Trustee from proceeding to execute the writ of possession and from evicting the applicant from what he said was his “lawful home”. His application for a further stay of execution for the writ of possession came before Tobias JA on 14 March 2005. In considering that application Tobias JA considered the merits of the application for leave to appeal from the order of Greg James J of 3 March 2005. His Honour held that nothing had been advanced by the defendant which would indicate that the discretion exercised by the primary judge had miscarried, when on 3 March 2005, he dismissed the defendant’s application for a further stay of execution of the writ. His Honour said that it was clear that any appeal from Greg James J’s decision was doomed to fail. In my view, this application was a further vexatious proceeding instituted by the defendant.

102 On 15 March 2005, the defendant filed in the Court of Appeal a notice of motion to review the judgment given by Tobias JA on 14 March 2005. That notice of motion was amended on 4 April 2005 and was returnable before the Registrar on 11 April 2005. On that day Registrar Schell fixed the notice of motion for hearing on 11 May 2005. The Registrar also listed for hearing before the Court of Appeal on 11 May 2005, the application in CA 41204 of 2004 for leave to appeal from the judgment of Hidden J. In the notice of motion in proceedings CA 40141 of 2005 the defendant seeks to review the two decisions of Tobias JA, which I take it to be his Honour’s decisions of 19 January 2005 and 14 March 2005. He seeks an order that the matters of:

“the Supreme Court’s unlawful appointment of the Public Trustee Executor/Administrator (sic) and the Public Trustee’s theft of Russell Caldar’s lawful home with the leave of the Supreme Court, and the Public Trustee’s unlawful eviction of Russell Caldar from his lawful home, be remitted for trial with a jury.”

103 In my view, there is no arguable basis upon which the defendant could be entitled to the relief which he seeks. Apart from anything else, there is no substantive proceeding which was before a primary judge of the Court and which is now before the Court of Appeal in which any such relief was sought. The decisions of Hidden J and Greg James J were decisions in relation to the stay of execution of a writ of possession in proceedings CL 10421 of 2003. That writ was executed on 17 March, 2005. I regard the applications for a stay, the appeals from the decisions of Hidden J and Greg James J refusing a stay, and the application to review the decision of Tobias JA dismissing those appeals, as all vexatious. The application for a review of Tobias JA’s orders is not itself the institution of vexatious proceedings as distinct from an application in proceedings which have already been commenced. But those proceedings are themselves vexatious. They are manifestly hopeless and they have been brought for the improper purpose of delaying the inevitable sale of the property.

104 The defendant submitted that if I were otherwise minded to make an order under s 84(2), I should exclude from the scope of that order the proceedings presently listed before the Court of Appeal on 11 May, 2005. I consider those are vexatious proceedings against which the plaintiff and the estate are entitled to be protected. I would not except them from the orders, even if s 84(2) permitted such a course, (a question I do not need to decide).

Execution of the Writ of Possession, Re-Entry and Fresh Proceedings

105 On 17 March 2005, the Sheriff delivered possession of the property at 36 Arthur Street, Dee Why to the Public Trustee following the defendant’s eviction from the property. On 11 April 2005, the defendant re-entered the property. He did so notwithstanding the judgment of the Court that he deliver possession of the property to the plaintiff and his eviction from the property by the Sheriff. This was a brazen defiance of the Court’s orders. The defendant says he did so because on 11 April he was granted leave to appeal to the “Full Bench” of the Court of Appeal for a hearing on 11 May. Even if that assertion were true, it would not justify the action which the defendant has taken. But the assertion is untrue. All that happened on 11 April, 2005 was that the Registrar in the Court of Appeal fixed the pending applications for hearing on 11 May. There was no grant of leave to appeal. The plaintiff did not submit before me that the defendant was in contempt of court and ought not to be permitted to be heard on the present application. It is unnecessary to decide whether the defendant is in contempt of court.

106 On 15 April 2005, the defendant filed a further notice of motion in proceedings 10421 of 2003 in which he seeks orders “endorsing [his] retaking possession, custody and control of his mother’s land …” and “staying the Public Trustee … from entering in or upon the land …”. In his affidavit in support of that notice of motion he deposed that he had been unlawfully evicted by the Public Trustee from the land. This ignores the fact that he was evicted by the Sheriff in accordance with a writ regularly issued, to enforce a judgment regularly obtained against him. Rather he asserted that he had rights at common law, equity and statute which he called upon the court to recognise and protect. This is yet another vexatious proceeding. It relies upon the same grounds as those upon which the defendant has repeatedly failed. The defendant sought that this proceeding also be excluded from the scope of any order I may make. I see no reason to do so.

107 So far as I am aware, that is the last of the proceedings instituted by the defendant against the Public Trustee.

Subsection 84(2) is Satisfied

108 This review shows that the defendant’s proceedings have been repetitious. As the defendant’s failures have accumulated, he has added to his complaints allegations of criminal conduct against the plaintiff, and allegations of bias and corruption on the part of the judiciary. These allegations are made on his bare assertion, or upon his attributing to facts a character which they cannot arguably bear. The defendant has been told repeatedly that his claims have no legal merit. He refuses to accept that that is so.

109 I am satisfied that the defendant has habitually and persistently and without reasonable grounds instituted proceedings which are vexatious on all three of the grounds described by Roden J in Attorney-General v Wentworth.

110 Many of them have been brought for the purpose of harassing and embarrassing the plaintiff. In my view, the scandalous allegations made by the defendant have been for that purpose.

111 The proceedings are also vexatious as having been brought for the collateral purpose of delaying the inevitable sale of the property by the proliferation of proceedings and inappropriate interlocutory applications within proceedings. It is not easy to say whether the defendant genuinely believes that a wrong has been done to him. Some judges have accepted that he has held such a belief. I am not prepared to say that he does not. Nonetheless, whether he genuinely believes himself wronged or not, he has deliberately instituted multiple proceedings to seek to ensure that there is always some application on foot upon which he can seek to rely to resist the Public Trustee’s obtaining possession of the property. He uses the fact that proceedings have been instituted as a means of delaying the sale of the property, irrespective of his entitlement to the relief which he seeks in those proceedings. In my view, the proceedings are vexatious for that reason also.

112 None of the proceedings which, during the course of these reasons I have characterised as vexatious, has had any reasonable grounds. They are also so obviously untenable or manifestly groundless as to be utterly hopeless.

113 In his submissions in the present application the defendant did not address the proceedings which he had brought individually to seek to justify them. Rather, he advanced again the general grounds upon which he contends that the Public Trustee was not lawfully appointed as administrator of the estate, and upon which he contends he is entitled to beneficial and legal ownership of a half share of the property at 36 Arthur Street, Dee Why. I have dealt with those arguments during the course of these reasons.

114 Even if the initial claims which the defendant made were sound, (which they were not), that would not have been an answer to the plaintiff’s claim. Litigants must accept the decisions of the Court subject, of course, to their rights of appeal. This principle applies no less to litigants who seek to ventilate their claims in inappropriate proceedings, and fail for that reason. The principle applies no less to a litigant who has the opportunity to advance such a claim but elects to withdraw, and not press his claim, because of adverse interlocutory rulings against him.

115 As the grounds for making an order under subs 84(2) are established, it is necessary to consider whether it is appropriate in the exercise of the court’s discretion under that section, to make the orders sought. The making of an order under s 84(2) and the consequent restraint upon what is otherwise a person’s entitlement to seek redress from a Court as a matter of right, is a serious matter. However the defendant has abused his rights of approaching the Court to redress any genuine grievance.

116 The plaintiff has been put to considerable delay and expense in the administration of what should be a simple estate through the institution and prosecution of repeated proceedings for which there is no justification. That can only operate to the disadvantage of the other beneficiary. It is likely also to operate to the disadvantage of the defendant in that the distribution which he will receive from the estate is likely to be substantially reduced owing to the costs which he has caused the Public Trustee to incur in the numerous pieces of litigation. Mrs Gittoes died on 27 April 2001. Because of the continuing litigation, it has been impossible for the plaintiff to prepare final accounts and proceed to any distribution of the estate. That is plainly unsatisfactory. Unless an order is made under s 84(2), the administration of the estate may never be finalised.

117 I do not consider it appropriate to make the declaration sought in order 1 of the summons and to which I have referred in para 1 above. Such a declaration would lack precision and be of no utility.

118 However I will make orders under s 84(2). The form of orders will follow those made in Attorney-General v Bhattacharya with appropriate adjustments.

Is the Last Application a Proceeding Instituted by the Defendant Within s 84(2)?

119 The orders which may be made under s 84(2) relate only to proceedings which may be, or have, been instituted by the vexatious litigant. Subsection 84(2) does not apply to any applications which the vexatious litigant may make in proceedings instituted against him. However, as Yeldham J said in Hunters Hill Municipal Council v Pedler, the question of what constitutes the institution of proceedings for the purposes of s 84 is a matter of substance, not form. His Honour said that it was probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current, are not within the section.

120 One of the pending applications is the notice of motion filed by the defendant on 15 April, 2005 in proceedings in the Common Law Division, 10421 of 2003, which were commenced by the plaintiff. However, I do not think that the proceedings CL 10421 of 2003 are proceedings which are still current. Judgment for possession was obtained in those proceedings and a writ of possession issued accordingly. The writ has been executed. In substance the defendant’s notice of motion is a new proceeding instituted by him in which he seeks an unspecified declaration by which the court should “recognise, respect, protect and uphold” his rights, and injunctions restraining the plaintiff from exercising its legal rights as owner of the property in respect of which it already has judgment for possession. In my view, that notice of motion is a legal proceeding instituted by him within the meaning of s 84(2) and it will be subject to the restraint of orders made under s 84(2). I will make a declaration to that effect.

121 The orders will apply to all the pending applications brought by the defendant in the Court, including those in the Court of Appeal.

Regulating Applications for Leave

122 In defending these proceedings, the defendant made many allegations of criminal conduct against the Public Trustee and bias and corrupt conduct on the part of the New South Wales judiciary. Those allegations were contained in two statutory declarations which he made and which were attached to a document called “Defence”. They were tendered by the plaintiff. There was no evidence in the proceedings to support the allegations. It is unnecessary to go through them all. In relation to the allegations against the Public Trustee, one example will suffice. The defendant asserted that the Public Trustee, with the leave of the Supreme Court, was committing perjury and making false and misleading statements. When asked to identify a particular statement made by the Public Trustee which he alleged was perjured, the defendant was unable to do so, saying only that it was contained in some document which he did not have to hand. The allegation that the New South Wales judiciary had given leave to the Public Trustee to commit perjury is as offensive as the allegation of perjury itself.

123 The defendant alleged that the judiciary was partial to the Public Trustee because the Public Trustee participated in the Supreme Court’s Probate Users Group, a committee comprising a senior judge, (who did not hear any of the defendant’s applications), court officers, representatives of the legal profession, trustee organisations and the Public Trustee. Like similar committees it reviews the efficiency of the Court’s procedures and suggests reforms. He also alleged that judges received financial remuneration from the Public Trustee. This allegation was based on s 10 of the Public Trustee Act pursuant to which clerks in a Local Court may be appointed agents of the Public Trustee to carry out administrative functions and on clause 12 of the Public Trustee Regulation 2001, which provides for estates to be charged to cover the remuneration of persons so appointed. Supreme Court judges are not clerks of the Local Court. They perform judicial functions. They are not agents of the Public Trustee.

124 It was by putting a sinister complexion on these matters that the defendant sought to justify his serious allegations. I will not dignify the defendant’s other allegations by reciting them. None of them had any proper basis.

125 The significance of this material is that it demonstrates the preparedness of the defendant to abuse the processes of the court by making allegations which, if made by a legal practitioner on behalf of a client, would properly result in disciplinary proceedings against that practitioner. The defendant is under no such constraint. At the hearing before me I had to warn the defendant on a number of occasions that he was abusing his privilege as an advocate. The defendant said that he intended to repeat the same allegations which are contained in his statutory declarations at the hearing of the applications which have been listed before the Court of Appeal on 11 May 2005. He sees the courtroom as a forum in which publicly to ventilate these matters. In doing so, he has an absolute privilege against defamation.

126 The plaintiff referred me to the observations of the Court of Appeal in Wentworth v Graham (2003) 57 NSWLR 741, dealing with the Court’s inherent jurisdiction to supervise the conduct of interlocutory applications in existing proceedings, where a litigant has consistently abused the process of the court, inter alia, by making scurrilous and baseless allegations. There the Court of Appeal made orders requiring the litigant to show cause in writing, by way of affidavits and written submissions, why orders should not be made to restrain both the kind of interlocutory applications which she could bring, and the manner in which further interlocutory applications should be brought, in particular, that there not be further oral hearings of such applications. The inherent jurisdiction of the Court to regulate the conduct of a pending action so as to control the unwarranted and vexatious making of interlocutory applications was explained by the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319-320. The Court said at 320:

… there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court.”

127 The High Court observed that such inherent power may be superseded by statute or by rules of court.

128 The plaintiff submitted that if an order were made under s 84(2), orders should also be made to control the way in which any applications under that subsection for leave to institute new proceedings, or to continue existing proceedings, should be brought and determined. I consider that it is appropriate, so far as the Court’s inherent power permits, to make directions to control the manner in which applications for leave to proceed should be dealt with, so as to prevent the Court’s process from being abused. That jurisdiction applies to pending proceedings.

129 In the proceedings in the Common Law Division and the Equity Division I will order that any application by the defendant for leave to continue proceedings instituted by him, including the proceedings purportedly instituted by him by notice of motion filed on 15 April 2005 in proceedings CL 10421 of 2003, be made by motion supported by an affidavit and written submissions. I will further order that unless the Court otherwise directs, there be no oral hearing of any such motion and that the hearing of any such motion be by way of written submission alone.

130 I do not think it appropriate that I should make orders regulating how any application for leave to continue proceedings in the Court of Appeal should be conducted. That will be a matter for the Court of Appeal.

131 Consequentially on making orders under s 84(2), I will also vacate the listing of the matters presently listed before the Duty Judge on 27 April 2005. That will not prevent the defendant from re-listing the proceedings if he obtains leave under s 84(2) to continue them. Nor, of course, will the orders preclude the plaintiff from making any application, either in the existing proceedings or by new proceedings.

Costs

132 The plaintiff sought orders that its costs be paid on an indemnity basis, that its costs of the proceedings be paid out of the defendant’s entitlement in the estate, and that to the extent its costs were not otherwise satisfied by the previous orders, that its costs on the indemnity basis be paid out of the estate.

133 The grounds upon which counsel for the plaintiff submitted that the costs of the proceedings should be paid by the defendant on an indemnity basis were that the plaintiff had been compelled to bring the proceedings as a result of continued vexatious litigation by the defendant, and that the proceedings were brought in the interests of the administration of the estate.

134 I accept that the proceedings were properly brought in the interests of the administration of the estate, but I do not consider that that is a sufficient reason for ordering costs on an indemnity basis. Nor do I consider that the way the defendant has conducted the present proceedings warrants an order for costs otherwise than on the usual party and party basis. I do not think it unreasonable for the defendant to have resisted the application. The power which the plaintiff has successfully invoked is a drastic power which seriously abridges the right which the defendant enjoys in common with others to call upon the Court to decide his claim simply by making application in the prescribed way. The fact that the grounds for making the order have been amply established does not mean that it was unreasonable for the defendant to oppose the relief sought.

135 Although the defendant has made unfounded and scandalous allegations in the proceedings, he did not unduly prolong the proceedings. His statutory declarations were tendered by the plaintiff as evidence against him. I do not consider that he conducted the present proceedings in such a way as to justify an order for indemnity costs.

136 The plaintiff is however entitled to the usual order that the unsuccessful defendant pay the costs of the proceedings on the party and party basis.

137 As the plaintiff is acting in a representative capacity and in the interests of the estate in bringing the proceedings, it is entitled to be indemnified in respect of its costs from the estate on a trustee basis. The plaintiff may have recourse to the estate for any difference between its costs on a trustee basis and the costs recovered from the plaintiff.

138 The final question concerns how the costs payable by the defendant should be borne, if the defendant does not pay the amount for which he will be liable before the plaintiff is in a position to distribute the estate. In that event, I consider that under the rule in Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171, (or the equity illustrated by that case, (Perpetual Trustees (WA) Ltd v Equus Corporation Pty Ltd, (Young J, 5/03/98 unreported)), the defendant is not entitled to participate in the distribution of the estate without making the contribution which he is required to make under the costs order in favour of the plaintiff which would restore the estate. (In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 at 150; Courtenay v Williams (1844) 3 Hare 539 at 553-4; 67 ER 494 at 500). The equity will be satisfied either by the defendant making the contribution which he is required to make before the estate is distributed, in other words by paying the amount due under the costs order, or by the administrator treating the amount as if it had notionally been paid, dividing the fund for distribution between the defendant and Mr Allan Gittoes on that basis, and then deducting from the amount to be paid to the defendant, the amount of his unpaid liability. For example, if after the sale of the Dee Why property and meeting the costs and expenses of administration, including its costs of the various proceedings, the plaintiff holds net proceeds of $500,000 and the defendant is liable to pay $100,000 to the plaintiff under the various costs orders which have been made against him, the costs orders could be satisfied by the plaintiff distributing $300,000 to Mr Allan Gittoes and $200,000 to the defendant. (Re Melton [1918] 1 Ch 37 at 59).

139 This principle applies not only to the order for costs which will be made in these proceedings, but to the costs orders made in other proceedings. I do not consider that a declaration is strictly necessary. However there may be a question as to whether the costs payable to the Public Trustee in the present proceedings is a sum payable to it in its capacity as administrator of the estate. For the reasons I have given, the plaintiff is acting in its capacity as administrator of the estate and is properly taking a step which is necessary to enable the administration to be completed. In the circumstances there is some utility in making a declaration along the lines of that sought.

140 The summons seeks:

“An order that the plaintiff’s costs of the proceedings herein be paid out of the defendant’s entitlement in the estate of the late Rachel Isabell Gittoes.”

141 It is appropriate to make a declaration to that effect, but one which resolves the ambiguity in the notion of the defendant’s “entitlement in the estate”. In the example I gave, the costs of $100,000 would not be deducted from the defendant’s half share of $500,000. I will declare that except to the extent that the defendant’s liability to pay the plaintiff’s costs of the proceedings is otherwise satisfied, the amount to be distributed by the plaintiff to the defendant as his share in the estate of the late Rachel Isabell Gittoes shall be determined by notionally adding back to the moneys available for distribution to the beneficiaries the amount of the defendant’s liability to pay the costs of these proceedings, to the extent to which it has not been satisfied, and by paying to the defendant one half of the amount thereby notionally available for distribution, less the amount of such liability.

142 It is not to be implied from the making of this declaration that it is only the costs of the current proceedings which can be dealt with in this way. However I have not been asked to make any orders or declarations in relation to the defendant’s liability to the plaintiff under other costs orders. The declaration will not prejudice the rights of the plaintiff and Mr Allan Gittoes to claim that the same principle applies to the other costs orders.

143 Nor have I dealt with the question of whether the plaintiff or Mr Allan Gittoes is entitled to any further relief in relation to the difference between the costs in respect of which the plaintiff will be entitled to be indemnified from the estate and the amount payable by the defendant under the various costs orders. That is not a matter which has been debated before me and is not the subject of any application.

144 For these reasons I make the following orders and declarations:

1. Until further order -

(a) the defendant shall not, without leave of the Court, institute any legal proceedings, whether civil or criminal, against the plaintiff, in any court of this State;

(b) any legal proceedings, whether civil or criminal, instituted by the defendant against the plaintiff before the making of this order in any court in this State, shall not be continued by the defendant, without leave of the Court;

(i) instituting any proceedings, whether civil or criminal, against the plaintiff in any court of this State without the leave of this Court; or

(ii) making any application in any legal proceedings, whether civil or criminal, already instituted by the defendant against the plaintiff in any court of this State, without the leave of this Court; or

(iii) instituting any appeal or application for leave to appeal in respect of legal proceedings, whether civil or criminal, already instituted by the defendant against the plaintiff in any court of this State, without the leave of this Court.

2. Without affecting the generality of the orders in paragraph 1, declare that by filing a notice of motion on 15 April, 2005 in proceedings No. 10421 of 2003 in the Common Law Division of the Court, the defendant instituted proceedings against the plaintiff within the meaning of s 84(2) of the Supreme Court Act 1970 (NSW), and that such proceedings are subject to the orders in paragraph 1(b) and (c)(ii) and (iii).

3. In respect of proceedings instituted by the defendant which are currently pending in the Common Law Division and Equity Division of the Court, including the proceeding commenced by notice of motion on 15 April, 2005 in proceedings No. 10421 of 2003 in the Common Law Division, order that any application for leave to continue such proceedings be made by way of motion, supported by an affidavit and written submissions and that, unless the Court otherwise directs, there be no oral hearing of any such motion and the hearing of any such motion be by way of written submission alone.

4. Vacate the listing of proceedings No. 5057 of 2004 (formerly 11989 of 2004) and of proceedings No. 1401 of 2005 (formerly No. 13922 of 2004) before the Duty Judge on 27 April, 2005.

5. Order the defendant pay the plaintiff’s costs of the proceedings.

6. Order that the plaintiff be entitled to be paid its costs of the proceedings from the estate of Rachel Isabell Gittoes on the trustee basis, to the extent its costs are not otherwise satisfied by order 5.

7. Declare that except to the extent that the defendant’s liability to pay the plaintiff’s costs of the proceedings is otherwise satisfied, the amount to be distributed by the plaintiff to the defendant as his share in the estate of the late Rachel Isabell Gittoes shall be determined by notionally adding back to the moneys available for distribution to the beneficiaries the amount of the defendant’s liability to pay the costs of these proceedings, to the extent to which it has not been satisfied, and by paying to the defendant one half of the amount thereby notionally available for distribution, less the amount of such liability.

******

CITATION:	Public Trustee v Gittoes aka Caldar [2005] NSWSC 373
HEARING DATE(S):	18 & 19/04/05
JUDGMENT DATE :	22 April 2005
JUDGMENT OF:	White J
DECISION:	See paragraph 144 of judgment.

CATCHWORDS:	VEXATIOUS LITIGANT - Administration of deceased estate frustrated - Principle in Cherry v Boultbee.
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) Public Trustee Act 1913 (NSW) Wills, Probate and Administration Act 1898 (NSW) Real Property Act 1900 (NSW) Family Provision Act 1982 (NSW) Supreme Court Rules Conveyancing Act 1919 (NSW) Trustee Act 1925 (NSW)
CASES CITED:	Attorney-General v Wentworth (1988) 14 NSWLR 481 Attorney-General in and for the state of New South Wales v Bhattacharya [2003] NSWSC 1150 Attorney-General (NSW) v Betts [2004] NSWSC 901 Attorney-General v Barr-Mordecai [2005] NSWSC 142 Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Wills, Probate and Administration Law in New South Wales by Geddes, Roland & Studdert (1996 ed) In the Goods of Morant (1874) LR3P&D 151 In Re Goddard [1951] QWN 46 Caldar v Public Trustee [2003] NSWCA 187 Buchan v Nash [1983] 2 NSWLR 575 Rule v Mallon (2000) 10 BPR 18,005 Helmore, Commercial Law and Personal Property in New South Wales, 10th ed P.W. Young, Annotated Conveyancing and Real Property Legislation in New South Wales, 3 ed Halsbury's Laws of Australia Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 Mayfield v Lloyd-Williams [2004] NSWSC 419 Wentworth v Graham (2003) 57 NSWLR 741 Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 Cherry v Boultbee (1839) 4 My & Cr 442 Perpetual Trustees (WA) Ltd v Equus Corporation Pty Ltd, (Young J, 5/03/98 unreported) In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 Courtenay v Williams (1844) 3 Hare 539 Re Melton [1918] 1 Ch 37
PARTIES:	Public Trustee v Russell Graham Gittoes aka Russell Caldar
FILE NUMBER(S):	SC 1120/05
COUNSEL:	Plaintiff: L Ellison & J Patey Defendant: In Person
SOLICITORS:	Plaintiff: Clinch Neville Long Lawyers Defendant: N/A