Re Estate Gowing; Application for Executor's Commission

[2014] NSWSC 247

Supreme Court

New South Wales

Medium Neutral Citation:	Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247
Hearing dates:	3 June 2013 (and, with written submissions, on papers in chambers)
Decision date:	17 March 2014
Jurisdiction:	Equity Division
Before:	Lindsay J
Decision:	Order made varying the amount of commission allowed to Executors from the estate of the Deceased under the Probate & Administration Act 1898 NSW s 86(1)
Catchwords:	WILLS, PROBATE and ADMINISTRATION - Executors - Claim for commission - Assessment of quantum - Principles applicable - Guideline rates - Standard of reasonableness - Interplay between lump sum and percentage rate assessments - Application to large estate PROCEDURE - Review of registrar's decision - Assessment of executor's commission - Nature of review - status of registrar's decision - Specialist jurisdiction involving expertise acquired from experience of estate administration - Probate & Administration Act 1898 NSW s 86(1) - Summary procedure
Legislation Cited:	Administration and Probate Act 1958 VIC, s 65 Australian Courts Act 1828 (Imp) Civil Procedure Act 2005 NSW Corporations Act 2001 Cth, chapter 5D NSW Trustee and Guardian Act 2009 NSW Probate & Administration Act 1898 NSW s 86(1) Supreme Court Act 1970, s 120A(1)-(3); s 121(5). s 121(4), s 121 (3), Supreme Court Rules 1970 NSW Part 78 r 5(1)(f), r 94, Part 78 r 5(1)(f) The Third Charter of Justice - [The New South Wales Act of 1823] Trustee Companies Act 1964 NSW Uniform Civil Procedure Rules 2005 NSW r 49.19, r 49.20(1)
Cases Cited:	Allen v Union-Fidelity Trustee Co of Australia Limited (1986) 6 NSWLR 341 at 345E-346D Anson v Anson [2004] NSWSC 766; 12 BPR 22,303 at [75]-[76]; 12 BPR 22,303 at [75]-[78] Ayliffe v Murray (1740) 2 AtK 58 at 59-60; 26 ER 433 at 434 Bethell v Abraham (1873) LR 17 Eq 24 Brown v Inland Revenue Commissioners [1965] AC 244 at 256 Creer - The Estate of Peters [2007] NSWSC 1291 at [9], [11] Crout v Beissel [1909] VLR 207 at 213-214 Dale v Inland Revenue Commissioners [1954] AC 11 at 27 Estate of Sharman; Ex parte Verslius [1999] NSWSC 709 at [2]-[3] Estate of Edward Simshauser, deceased (NSW Supreme Court, Holland J, 24 November 1978, unreported). Forster v Ridley (1864) 4 De G J & S 452 Foster v Spencer [1996] 2 All ER 672 at 678j-679b and 681b-682h Guazzini v Pateson (1918) 18 SR (NSW) 275 at 285-286 Hawkins v Barkley-Brown [2010] NSWSC 48 at [28]-38] In Re Allan McLean (Deceased) [1911] 31 NZLR 139 at 144 In Re Duke of Norfolk's Settlement Trusts [1982] Ch 61 In Re Freeman's Settlement Trusts (1887) 37 Ch D 148 In Re Universal Distributing Company Limited (In Liq) (1933) 48 CLR 171 at 176 In Re Viscount Furness; Wilson v Kenmore [1943] Ch 415 at 418-419 In the Will of TS Douglas (1951) 51 SR (NSW) 282 at 284-285 In the Will of James Greer (1911) 11 SR (NSW) 21 at 23 In the Will of Kerrigan (1935) 35 SR (NSW) 242 at 245-246 and 251-252 In the Will of J Marsden (1926) 43 WN (NSW) 170 In the Will of Oddie [1976] 1 NSWLR 371 at 374B In the Will of Shannon [1977] 1 NSWLR 210 at 214G-215D, 217D-218D In the Will of Sheldon [1972] 1 NSWLR 196 at 199F-201D In the Will of Sheppard [1972] 2 NSWLR 714 at 717B, 717 In the Will of Henry Sherringham (1901) 1 SR (NSW) (B&P) 48 In the Will of Wallace (1934) 51 WN (NSW) 84 at 86 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633-637 Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 at 93 [69] Mayne v Jaques (1960) 101 CLR 169 at 181, 182, 183 Minors v Battison (1876) 1 App Cas 428 at 438-439 Moss v Barnett (1862) 1 SCR (NSW) 313 at 316-317 Nissen v Grunden (1912) 14 CLR 297, 305, 315 Patterson v Halliday [2003] VSC 298 at [26]-[27] Phillips Re Estate of Joel [2007] NSWSC 639 at [14] and [18]; [11] Plomley v Shepherd (1896) 17 NSWR (Equity) 215 at 217 Re Application of Sutherland [2004] NSWSC 798; 50 ACSR 297 at [11]-[17]; 299 [11] - 301 [17] Re Browne (1895) 1 NSWLR (B&P) 62 at 67-68, 69 and 70-71 Re Craig (1952) 52 SR (NSW) 265 at 267-268 Re Estate of Wilson, deceased (1987) 11 NSWLR 493 at 495B Robinson v Pett (1734) 3 P.WMS. 249; 24 ER1049 Spence v Spence [2003] NSWSC 1232 at [5]-[10] Tomko v Plasty (No 2) (2008) 71 NSWLR 61 at 64 [4]-65 [11] Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [15]-[17], [16] Willett v Futcher (2005) 221 CLR 627 at 636 n 26 Winter-Irving v Winter [1907] VLR 546
Texts Cited:	Hastings and Weir, Probate Law and Practice, 2nd ed, (LBC, 1948) Mason & Handler, Succession Law and Practice NSW (Lexis Nexis, 1985), para [144.1.1.3] ES Vance, Executor's Commission (Law Book Co, Australia, 1969) at pp 187-190 JM Bennett and AC Castles A Source Book of Australian Legal History, pp 46-47 JM Bennett, A History of the Supreme Court of New South Wales pp 133, 135 and 141-142, p 94 n 5 Mason & Handler, Succession Law and Practice NSW (Lexis Nexis, 1985), para [144.1.1.3] R Hastings and G Weir, Probate Law and Practice, Part 1 (pp 3-25). RB Outhwaite, The Rise and Fall of the England Eccesiastical Courts, 1500-1860, p 33 RS Geddes, CJ Rowland and P Studdert, Wills Probate and Administration Law in NSW (LBC, 1996), para [86.20] on p 586 WJ Jones, The Elizabethan Court of Chancery,pp 400-417; pp 403-404, 411 and 413-417 W Holdsworth, A History of English Law,pp 458-459 and 629 Chapters on Equity in New South Wales, pp 7-8 Sir Frederick Jordan, Select Legal Papers LI Rotman, Fiduciary Law, p 62 F Jordan, Chapters on Equity in NSW (6th ed, 1947), p 124 note (m); p 125 note (c), reprinted in Select Legal Papers (Legal Books, Sydney, 1983). F Jordan, Select Legal Papers (Legal Books, Sydney, 1983) Administration of the Estates of Deceased Persons (3rd ed, 1948), pp 42-44; Browne Ashburner's Principles of Equity (Butterworth, London, 2nd ed, 1933), p 134; ES Vance, Executors Commission, pp 182-183
Category:	Principal judgment
Parties:	Stephen Keith Preen and Ross Walter Dymock Forsyth (Plaintiffs/Executors) Ex parte
Representation:	Counsel: JE Armfield Solicitors: Maurice Buckley, CT Poole and Son
File Number(s):	2010/210049

Judgment

INTRODUCTION

1. This judgment deals with an application by executors of a deceased estate (by a notice of motion filed pursuant to the Uniform Civil Procedure Rules 2005 NSW, r 49.19) for review of the decision of a senior deputy registrar (in exercise of the jurisdiction of the Court for which, by s 86(1), the Probate & Administration Act 1898 NSW provides) as to the quantum of commission allowed to the executors out of the estate of the deceased.

1. The essential complaint of the executors is that Senior Deputy Registrar Studdert allowed them too little commission having regard to the burden of the work that, they contend, they bore in administration of a large estate comprising a diversity of assets and beneficiaries.

1. Their more particular complaint is that, in his calculation of commission, the Senior Deputy Registrar adopted benchmarks that, in their contention, are too low.

1. Their submissions require consideration of the nature of the jurisdiction exercised: (a) by the Court under s 86(1) of the Probate & Administration Act ("PAA"); (b) by a registrar of the Court exercising that jurisdiction as an officer of the Court; and (c) by a judge upon review of a decision made by a registrar under s 86(1).

THE OFFICE OF A REGISTRAR OF THE COURT

1. There is no materiality in this judgment in the distinction between a registrar and a deputy registrar. The "Probate Rules", found in Part 78 of the Supreme Court Rules 1970 NSW ("SCR"), define "registrar" in terms that include the Senior Deputy Registrar (SCR Pt 78 r 1), as does PAA s 3 read with s 120 of the Supreme Court Act 1970 NSW ("SCA").

1. For convenience, in this judgment I use, simply, the term "registrar".

1. In the exercise of a power conferred upon him or her, a registrar constitutes the Court by virtue of SCA s 121(5).

1. A judgment of a registrar takes effect as a judgment of the Court (SCA s 121(4)) but may be set aside or varied by the Court (SCA, s 121(3)) in a process of review generally governed by the Uniform Civil Procedure Rules 2005 ("UCPR"), r 49.19.

1. The Probate Rules confer on a registrar the powers of the Court in relation to the passing of the accounts of executors and the allowing of commission to them. At the time the decision presently under review was made, that conferral of power was found in SCR Part 78 r 5(1)(f). A new set of "Probate Rules" commenced operation on 21 January 2013. Under the new form of SCR Part 78, conferral of power on the registrar referable to s 86 of the Probate & Administration Act 1898 is found in SCR Part 78 r 94.

CENTRAL LEGISLATIVE PROVISIONS

1. The provisions of PAA s 86(1) and UCPR r 49.9 lie at the heart of this judgment.

1. Reference needs also to be made to the Probate Rules (formerly SCR Pt 78 r 81, now SCR Pt 78 r 84) governing the form of a certificate issued by the Court, at the time an executor's accounts are vouched as correct, where an application is made by an executor for commission.

1. PAA s 86(1) is in the following terms:

"86 Executors etc may be allowed commission

(1) The Court may allow out of the assets of any deceased person to the deceased person's executor, administrator, or trustee for the time being, in passing the accounts relating to the estate of the deceased person, such commission or percentage for the executor's, administrator's or trustee's pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct. [Emphasis added]"

1. At the time orders were made for the passing of the accounts (from the date of the testatrix's death on 29 December 2009 to 30 June 2011) upon which a claim for commission was made to the registrar in these proceedings, SCR Pt 78 r 81 was in the following terms:

"81 Certificate

(1) Upon the conclusion of the vouching the registrar shall inform the plaintiff [an executor] of matters necessary for preparation by the plaintiff of a draft minute of a certificate by the registrar of the vouching of the accounts.

(2) The certificate vouching the accounts shall certify as to:

(a) the correctness of the accounts,

(b) the balance of the accounts, and

(c) such other information as the registrar may direct.

(3) Where the plaintiff seeks commission, the certificate shall in addition certify as to:

(a) the amount of capital realised,

(b) the amount of income collected,

(c) the value of any assets transferred to beneficiaries, and

(d) where a business was carried on - the gross receipts and net profit earned or loss incurred,

during the period of the accounts.

(4) The plaintiff shall lodge the draft minute with the registrar.

(5) The registrar shall sign a correct minute of his or her certificate.

(6) The registrar may of his or her own motion set aside or vary the certificate. [Emphasis added]"

1. In the new Probate Rules, SCR Pt 78 r 84 is in the following terms:

"84 Certificate as to passing of accounts

(1) If the Court makes an order passing accounts, the registrar is to issue the applicant [an executor] with a certificate as to the balance of the accounts.

(2) If the Court makes an order allowing commission, the certificate must also certify as to:

(a) the amount of capital realised, and

(b) the amount of income collected, and

(c) the value of any assets transferred to beneficiaries, and

(d) where a business was carried on, the gross receipts and net profit earned or loss incurred,

during the period to which the accounts relate. [Emphasis added]"

1. The following are common features of both versions of the Probate Rules: first, consistently with PAA s 86(1), certification of the correctness of accounts is central to the concept of an allowance of commission; secondly, the Court's certificate recognises established categories of accounting information (relevantly, in these proceedings, capital realisations, income collections and the value of assets transferred in specie); and, thirdly, the process of passing accounts and allowing commission is entrusted, in the first instance, to a registrar.

1. UCPR r 49.19 is in the following terms:

"49.19 Review of registrar's directions, certificates, orders, decisions and other acts

(cf SCR Part 61, rule 3; DCR Part 43, rule 15)

If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. [Emphasis added]"

1. Each of these provisions needs to be construed, and given operation, in the context of the specialist nature of the Court's probate jurisdiction.

1. A particular need for exploration of the nature of the jurisdiction exercised by a registrar, and by a judge upon review of a registrar's decision, referable to PAA s 86(1) flows from the convergence of a number of factors.

1. First, there is a need to reconcile tension between (on the one hand) the general law principle that the office of an executor (including in that expression, for the purpose of this judgment, an administrator and a trustee) is a gratuitous one unless special arrangements are made and (on the other hand) the breadth of the Court's powers, not limited to PAA s 86(1), to allow an executor commission from an estate under administration.

1. Secondly, there is a need to understand the strong administrative flavour encountered, in the context of PAA s 86(1) no less than in the context of other heads of probate or equity jurisdiction, in the assessment of executor's commission, arising from which officers of the Court routinely engaged in dealing with the Court's probate business (including Senior Deputy Registrar Studdert) have generally acquired specialist expertise.

1. Thirdly, there is a need to appreciate the interplay between aspects of the Court's jurisdiction which might loosely be described as involving "procedural" and "substantive" law considerations, having regard to the historical origins of PAA s 86(1) as a summary form of procedure operating in lieu of a general order for the administration of an estate in court (Nissen v Grunden (1912) 14 CLR 297 at 305), but not extending to an order for prospective remuneration available upon an exercise of the Court's general, equitable jurisdiction (In the Will of Gaukrodger (1915) 15 SR (NSW) 192 at 195).

1. In principle, an allowance for executor's commission could be made on a partial administration order (under UCPR Pt 54), without need for the making of a general administration order, but PAA s 86(1) provides a convenient, statutory source of jurisdiction towards the same end, and it is commonly used. Invocations of the Court's "inherent" (general, equitable) jurisdiction are generally unaccompanied by any reference to the procedural device of a partial administration order.

1. Learning about the nature of, and necessity for, a general administration order is no longer part of everyday legal practice in NSW: See, however, McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 at 633-637; F Jordan, Select Legal Papers (Legal Books, Sydney, 1983) incorporating Administration of the Estates of Deceased Persons (3rd ed, 1948), pp 42-44; Browne, Ashburner's Principles of Equity (Butterworth, London, 2nd ed, 1933), p 134; Bethell v Abraham (1873) LR 17 Eq 24; Minors v Battison (1876) 1 App Cas 428 at 438-439; In Re Viscount Furness; Wilson v Kenmore [1943] Ch 415 at 418-419.

1. Fourthly, there is a need to have regard to the standard of what is "just and reasonable" that is explicit in PAA s 86(1) and, more or less, found in the general law governing allowances of remuneration to fiduciaries.

1. Fifthly, acknowledgement is required of difficulties intrinsic to any process of assessment of the quantum of commission (particularly via a summary procedure) in which there needs to be, so far as practicalities allow, a transparent connection between the quantum of any commission allowed and the amount and quality of work undertaken for which commission is allowed.

1. Sixthly, consideration needs to be given, in the context of administration of a large estate, to the Court's customary practice of allowing commission as a percentage of entries in estate accounts rather than by an award of commission on a lump sum basis.

1. Seventhly, there is a need to address the role of a judge upon the conduct of a review of a registrar's decision on an application for executor's commission and, correspondingly, the status and persuasive value to be attributed to the report of a registrar on the reasons for the decision under review.

1. Eighthly, there is need to consider whether (and, if so, how) the operation of case management principles embodied in the Civil Procedure Act 2005 NSW ("CPA") and the UCPR, enacted since the seminal judgment of In the Will of Sheppard [1972] 2 NSWLR 714, affect the analysis of the jurisdiction and decision-making processes associated with a review of a registrar's decision about executor's commission.

1. The character of the decision-making processes at play is evident in the fact that, unless a registrar's decision is challenged by the filing of a motion for review (pursuant to UCPR r 49.20(1)), no reasons for his or her decision are customarily published. The practice of the Court is for the registrar, after the filing of a motion for review, to provide a report (in the current proceedings described as "Reasons for Decision") setting out his or her reasons for the order under challenge: In the Will of Sheppard [1972] 2 NSWLR 714 at 717B; Creer - The Estate of Peters [2007] NSWSC 1291 at [9].

THE CHARACTER OF THE COURT'S JURISDICTION TO AWARD EXECUTOR'S COMMISSION

1. The history and nature of the jurisdiction of the Court (including that for which PAA s 86 provides) to allow executor's commission out of a deceased estate are authoritatively dealt with by the High Court of Australia in Nissen v Grunden (1912) 14 CLR 297 and, with an additional reference to the judgment of the Full Court of the Supreme Court of Victoria in Winter-Irving v Winter [1907] VLR 546, by Helsham J in In the Will of Sheldon [1972] 1 NSWLR 196 at 199F-201D.

1. Importance attaches to the origins of the Court's jurisdiction in the Third Charter of Justice (promulgated pursuant to the Imperial Statute, 4 Geo IV c 96, known colloquially as "The New South Wales Act" of 1823), continued by SCA s 22, for several reasons.

1. First, by s 10 of the New South Wales Act (reproduced in JM Bennett and AC Castles (eds), A Source Book of Australian Legal History (Law Book Co, Sydney, 1979) at pp 46-47) and by clause 14 of the Charter (reproduced in Historical Records of Australia, Series IV, Volume 1, at pp 514-516), the Court was constituted as a court of ecclesiastical jurisdiction, the source of the jurisdiction we presently know, generally, as "probate jurisdiction": JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), pp 133, 135 and 141-142; R Hastings and G Weir, Probate Law and Practice (Law Book Co, Sydney, 2nd ed, 1948), Part 1 (pp 3-25).

1. By the time of the establishment of the Court, in New South Wales, Chancery had long encroached on the jurisdiction of the Ecclesiastical Courts, in England, in relation to trusts, legacies and debts in wills: RB Outhwaite, The Rise and Fall of the England Eccesiastical Courts, 1500-1860 (Cambridge University Press, 2006), p 33, citing WJ Jones, The Elizabethan Court of Chancery (Clarendon Press, Oxford, 1967), pp 400-417; W Holdsworth, A History of English Law (7th ed, 1956), pp 458-459 and 629.

1. A large factor in that encroachment was the availability in Chancery of procedures, inter alia, for the enforcement of trusts, the taking of accounts, and the determination of disputes between executors: Jones, op cit, pp 403-404, 411 and 413-417.

1. By s 9 of the New South Wales Act (reproduced at p 46 of JM Bennett and AC Castles, op cit) supplemented by s 11 of the Australian Courts Act 1828 (Imp), 9 Geo 4 c 83, the Court had conferred on it the jurisdiction of the Lord Chancellor: JM Bennett, op cit, p 94 n 5; F Jordan, Chapters on Equity in New South Wales (Sydney Law School, 6th ed, 1947), pp 7-8, reproduced in Sir Frederick Jordan, Select Legal Papers (Legal Books, Sydney, 1983).

1. Secondly, clause 17 of the Charter (reproduced in HRA, Series IV, Volume 1, at pp 517-518) provided, inter alia (and with emphasis added), that "... it shall be lawful for [the Supreme Court of NSW] to allow to any Executor or Administrator of the effects of any deceased person ... such Commission or percentage out of their assets as shall be just and reasonable for their pains and trouble therein....", and generally tied an allowance of executor's commission to the process of an Executor or Administrator passing his or her accounts in the course of administration of an estate.

1. Thirdly, clause 17 of the Charter is a prime source of the Court's "inherent jurisdiction" to allow executor's commission, supplementing Equity's more general jurisdiction to permit a fiduciary to retain an allowance for remuneration out of assets within the fiduciary's control: Nissen v Grunden (1912) 14 CLR 297 at 305 and 315; Mayne v Jaques (1960) 101 CLR 169 at 181; Willett v Futcher (2005) 221 CLR 627 at 636 n 26 (citing In Re Freeman's Settlement Trusts (1887) 37 Ch D 148; Forster v Ridley (1864) 4 De G J & S 452; 46 ER 993 and In Re Duke of Norfolk's Settlement Trusts [1982] Ch 61); Anson v Anson [2004] NSWSC 766; 12 BPR 22,303 at [75]-[78]; Re Application of Sutherland [2004] NSWSC 798 at 299 [11] - 301 [17].

1. As Sir Frederick Jordan reminds us, this jurisdiction still exists, and need not necessarily be exercised in the summary form of procedure for which PAA s 86(1) provides: F Jordan, Chapters on Equity in NSW (6th ed, 1947), p 125 note (c).

1. Fourthly, the language of clause 17 is expressly reflected in the language ultimately enacted (to similar effect) in PAA s 86: Nissen v Grunden (1912) 14 CLR 297 at 305 and 315.

1. Fifthly, the terms in which the Charter (including clause 17) was expressed has justified, in the Supreme Court of NSW, an approach to allowances of executor's commission that accommodates both:

(a)   the "traditional" English approach (sometimes, as in Willett v Futcher (2005) 221 CLR 627 at 631 n 15, identified by reference to Robinson v Pett (1734) 3 P.Wms. 249; 24 ER1049) that the office of an executor, administrator or trustee of a deceased estate is a gratuitous one unless a contrary arrangement is made in the Will of the deceased; and

(b)   by expressly authorising the Court to grant an allowance of executor's commission, the Charter's recognition that it is open to the Court, in the exercise of ordinary (not extraordinary) jurisdiction, to depart from that "traditional" English approach: Nissen v Grunden (1912) 14 CLR 297 at 304 - 305.

1. In Robinson v Pett Lord Chancellor Talbot rationalised the "traditional" English approach in terms that continue (as illustrated by LI Rotman, Fiduciary Law (Thomson, Canada, 2005) at p 62)) to inform debates about whether (and, if so, in what measure) executor's commission should be allowed:

"It is an established rule that a trustee, executor or administrator, shall have no allowance for his care and trouble: the reason of which seems to be, for that on these pretences, if allowed, the trust estate might be loaded, and rendered of little value. Besides, the great difficulty there might be in settling and adjusting the quantum of such allowance, especially as one man's time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee, who may choose whether he will accept the trust, or not .... But further; in the present case, the testator has by his will expressly directed what should be [an Executor's] recompense for his trouble...."

1. This case is consistent with, and an early source of, a more general precept that the office of a fiduciary is a gratuitous one unless a special arrangement to the contrary is made (Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 at 93 [69]; Anson v Anson [2004] NSWSC 766; 12 BPR 22, 303 at [75]-[76]), a proposition closely linked with underlying concerns, first, that a fiduciary is not entitled to profit from his, her or its office as a fiduciary and, secondly, a fiduciary is not allowed to put himself, herself or itself in a position where personal interest and duties of the office conflict.

1. The powers of the Court to allow remuneration to executors, administrators and trustees exist as a means of granting to those fiduciaries relief, more particularly, against the rule that, generally, a fiduciary may not derive any profit or advantage from his, her or its position if not duly authorised to do so: In the Will of Shannon [1977] 1 NSWLR 210 at 214G-215D citing Dale v Inland Revenue Commissioners [1954] AC 11 at 27 and Brown v Inland Revenue Commissioners [1965] AC 244 at 256.

1. Although the starting point for consideration of an application for executor's commission remains that the office of an executor, administrator or trustee is, prima facie, a gratuitous one, the jurisdiction to award executor's commission (upon an exercise of inherent jurisdiction, derived from the Charter of Justice, or under PAA s 86) requires a preparedness on the part of the Court to move beyond that point and to do so by reference to the particular circumstances of each case.

1. An allowance of executor's commission is customarily expressed in the form of a percentage of entries in estate accounts (as a percentage of income collections, a percentage of capital realisations and/or a percentage of the sworn value of assets transferred in specie during the period covered by the accounts) vouched as correct by the Court. Consistently with this, as demonstrated, the Probate Rules require that a certificate issued on the passing of an executor's accounts include, when commission is allowed, information about these types of transaction: formerly SCR Pt 78 r 81, now SCR Pt 78 r 84.

1. This approach traditionally breaks down the task of assessing the quantum of remuneration, in a case such as the present one, into three categories of dealing with estate property (capital realisations, income collections and asset transfers in specie), each one of which, experience suggests, may have its own dynamic in a factual setting. However, these categories do not, in themselves, govern the performance of the Court's task. They provide assistance in the performance of that task similar to a set of procedural guidelines. By reference to PAA s 86(1), the task remains one of assessment of an allowance that is "just and reasonable" for the pains and trouble taken by an executor who applies for commission.

1. The jurisdiction of the Court extends, in an appropriate case, to the making of an allowance of remuneration as a lump sum unrelated to a percentage calculation: Spence v Spence [2003] NSWSC 1232 at [5]-[10]; Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [15]-[17]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [14] and [18]; Estate of Edward Simshauser, deceased (NSW Supreme Court, Holland J, 24 November 1978, unreported). Cf, Hawkins v Barkley-Brown [2010] NSWSC 48 at [28]-38]. Each case depends on its own facts. An award of lump sum remuneration is assessed by reference to local conditions (including the cost of services) affecting the work undertaken, not some remote, abstract schedule of prices: In Re Universal Distributing Company Limited (In Liq) (1933) 48 CLR 171 at 176. A mixed order, allowing some by a percentage calculation and some by a lump sum, may be appropriate: eg, Foster v Spencer [1996] 2 All ER 672 at 678j-679b and 681b-682h.

1. The quantum of remuneration that may be "allowed" is to be determined, in the particular circumstances of each case, by reference to a standard governed by what is "just and reasonable" for an executor's "pains and trouble" in administration of an estate.

1. Care needs to be taken, in each case, to bear in mind that the process of decision-making leading to an allowance of executor's commission is intended to be a summary one. Were the position otherwise, the administration of estates could be frustrated by collateral litigation.

1. The jurisdiction to allow executor's commission does not shift the primary focus of the Court away from the task of ensuring that there is due administration of an estate, having regard to the interests of the estate, beneficiaries and any known testamentary intentions of the deceased.

1. Quantification of an allowance for executor's commission is notoriously difficult. The customary practice of allowing commission as a percentage of entries in estate accounts reflects an aspiration for a standard that can be applied summarily, as an objective means of allowing, and confining, remuneration within a reasonable range. It is not applied without reference to the reasonableness or otherwise of the total amount of remuneration allowed in the particular case. On the contrary, a correct decision making process requires the Court "to put a value upon the pains and troubles of the executor with reference to the particular accounts": In the Will of Sheppard [1972] 2 NSWLR 714 at 721. Essentially, what has to be considered, on the facts of the particular case, is the work done by the executor and what is a reasonable allowance for that work: Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [16].

1. Different minds may approach that task differently. Methodology varies. Some minds tackle the process of quantification by making an initial assessment based upon percentages before cross checking it against a lump sum assessment: eg, Spence v Spence [2003] NSWSC 132 at [8]-[9]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [14]. Others approach a decision from the opposite direction: eg, ES Vance, Executors Commission (Law Book Co, 1969), pp 182-183. Either way, there is merit in a reality check on the reasonableness of any preliminary assessment, coupled with consideration of a check list of factors not uncommonly taken into account in the quantification of executor's commission.

1. The factors to be taken into account in the assessment of executor's commission (or upon consideration, under PAA s 86A or a similar provision, whether commission is excessive) are not uncommonly described by reference to ES Vance, Executor's Commission (Law Book Co, Australia, 1969) at pp 187-190: eg, Allen v Union-Fidelity Trustee Co of Australia Limited (1986) 6 NSWLR 341 at 345E-346D; Patterson v Halliday [2003] VSC 298 at [26]-[27].

1. To focus unduly on the application of percentage rates that might be perceived to be those that have been, or should be, "ordinarily" or "usually" applied is an invitation to error. They can be a useful guide to decision making, and their utility is not to be discounted because of a need to adapt them to the facts of the particular case, but they are no more than a guide.

1. In Phillips, Re Estate of Joel [2007] NSWSC 639 at [11] Windeyer J appears to have condoned resort to such a guide in terms that suggest he accepted as "usual rates of commission" (not, it must be said, "the" usual rates of commission): between 0.25% and 2.5% on capital realisations, 1%-2% on assets transferred in specie, and 1%-5% on income. At the same time, he cautioned that each case must be looked at on its own facts and that, where an estate is a large one, a rate at the lower end of the range would be "usual".

1. In Hawkins v Barclay-Brown [2010] NSWSC 48 at [68]-[69] Slattery J accepted, as rates of commission commonly allowed in practice, rates published in Mason & Handler, Succession Law and Practice NSW (Lexis Nexis, 1985), para [144.1.1.3]: from 0.25% to 2% on capital realisations; from 2% to 4% on income collections; and from 1% to 2% on assets transferred in specie. Upon an assessment of commission to be allowed in a large estate, his Honour selected rates at or below those ranges: 1% on capital realisations; 2% on income collections; and 0.5% on assets transferred in specie: [2010] NSWSC 48 at [69]-[70].

1. In the decision under review the registrar worked from a range of "usual" rates closer to those published in RS Geddes, CJ Rowland and P Studdert, Wills Probate and Administration Law in NSW (LBC, 1996), para [86.20] on p 586: from 0.25% to 2.5% on capital realisations, from 1% to 5% on income collections, and from 0.25% - 1% on assets transferred in specie.

1. The second edition of Hastings and Weir, Probate Law and Practice (LBC, 1948) - regarded still by NSW probate practitioners as worthy of reference - records, at p 274, a different set of "ordinary" rates: 0.75% to 2.5% on capital, and 1% to 5% on income.

1. All texts generally qualify their statements about "ordinary" or "usual" rates by noting that an assessment of commission depends upon the facts of the particular case. Published "ranges" of percentage rates are, at most, guidelines to decision-making.

1. There is a logical difficulty in pretending that precision attaches to any particular range of percentages in an environment (such as that generally experienced on an exercise of jurisdiction under PAA s 86(1)) in which the remuneration allowed to an executor is moderated by selection of a particular rate as applicable to the facts of a particular case. The process of moderation of any expressed range of "usual" or "ordinary" percentage rates is subsumed in the selection of a particular rate, not articulated in terms of an adjustment of the lump sum aggregation of intermediate percentage calculations referable to categories of dealings in estate property.

1. If and to the extent that reference is made to "ordinary" or "usual" rates, as a compendious way of referring to accumulated experience, care needs to be taken to place that reference in the context of a determination of what is "just and reasonable" for the executor's "pains and trouble". Whatever intermediate calculations are made by reference to the categories for which the Probate Rules provide (in old SCR Pt 78 r 81(3), now SCR Pt 78 r 84(2)), an assessment of remuneration that is "just and reasonable" requires the ultimate, resultant dollar amount to be weighed in the balance.

1. The concept of a "just and reasonable allowance" likewise counsels caution against an application of standards of reasonableness that might be applied in other areas of the law, such as on a quantum meruit claim (a claim of right) at common law. In the application of the Court's probate and equitable jurisdiction, discretionary in character, regard must be had to a range of factors (including the summary nature of the jurisdiction, the size and nature of the deceased's estate, the terms of any will and the rights of beneficiaries) rather than taking refuge in standard rates of remuneration that may guide a common law claim in contract or restitution: Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [16].

1. For most purposes, the expression "just and reasonable" may be taken to be commensurate with the word "reasonable" standing alone. However, the conjunction of "just" and "reasonable" does have work to do.

1. First, it is an indicator that a determination in favour of a grant of remuneration to an executor, administrator or trustee of a deceased estate is a discretionary concession (an "allowance") in favour of an accounting party, a fiduciary, on the passing of his, her or its accounts in the estate in respect of which fiduciary obligations are owed.

1. It is not necessary, in these proceedings, to consider whether the right of an executor to apply for commission on the passing of his, her or its accounts is in the nature of a property right, assignable or a "mere expectancy" (Mayne v Jaques (1960) 101 CLR 169 at 181-182) but, as Sir Victor Windeyer noted in that case, there is authority for the proposition that such right as an executor may have is a "mere expectancy": Moss v Barnett (1862) 1 SCR (NSW) 313 at 316-317; Re Browne (1895) 1 NSWLR (B&P) 62 at 67-68, 69 and 70-71.

1. That authority may be qualified to the extent that the High Court, in Nissen v Grunden (1912) 14 CLR 297 at 307 and Mayne v Jaques (relevantly at 1010 CLR 181-183), may be taken to have accepted that an allowance for executor's commission can be made in favour of the deceased estate of an executor.

1. However, an executor is not entitled to commission. The granting of commission, although normal where an executor has been involved in "pains and trouble", is discretionary and may be refused for any proper reason: In the Will of Oddie [1976] 1 NSWLR 371 at 374B; Re Estate of Wilson, deceased (1987) 11 NSWLR 493 at 495B; Re Craig (1952) 52 SR (NSW) 265 at 267-268; Vance, Executors Commission (1969) citing Crout v Beissel [1909] VLR 207 at 213-214; "Executors' Commission" 1934) 8 ALJ 121.

1. An executor may be denied commission if guilty of a breach of trust, neglect or disregard of fiduciary obligations: In the Will of Henry Sherringham (1901) 1 SR (NSW) (B&P) 48; In the Will of James Greer (1911) 11 SR (NSW) 21 at 23; Guazzini v Pateson (1918) 18 SR (NSW) 275 at 285-286.

1. In the Will of Wallace (1934) 51 WN (NSW) 84 at 86 provides a salutary illustration of this: an executor was denied commission because, although he had acted honestly and had made good estate funds misappropriated by a co-executor, he had failed to safeguard the estate against his co-executor's misconduct.

1. Secondly, the standard of "reasonableness" applied on a claim of a common law right to remuneration (in contract or, on a quantum meruit, in restitution) is not necessarily the same as that applicable on a fiduciary's application for an allowance of remuneration.

1. Thirdly, a fiduciary's application for remuneration must accommodate the purpose for which particular fiduciary obligations are owed, and the purpose served by an allowance of remuneration.

1. In the probate jurisdiction, each of these purposes is: (a) the due administration of the estate of a person who, absent in death, is unable to act otherwise than through a legal personal representative or the Court; and (b) administration of such an estate, in the interests of the deceased and his or her beneficiaries, according to their station.

1. The general rule, that the office of a fiduciary is a gratuitous one unless a special arrangement is made, is expressed in terms of a basic proposition coupled with an exception because experience has demonstrated that, first, the obligations of a fiduciary can be so onerous as to require a grant of relief from the burden they represent; and, secondly, an allowance of remuneration may be dictated by necessity in that, unless an entitlement to remuneration is allowed or held open as a possibility, prospective executors, administrators or trustees might decline to serve in those offices.

1. The inherent jurisdiction of the Court to allow remuneration to an executor, administrator or trustee is extensive: Nissen v Grunden (1912) 14 CLR 297; Anson v Anson [2004] NSWSC766; 12 BPR 22303 at [75]-[76]; Re Sutherland [2004] NSWSC 798; 50 ACSR 297 at [11]-[17].

1. In an appropriate case, it could extend to allowing an executor, administrator or trustee to receive a commercial return for services supplied in administration of an estate.

1. However, leaving aside professional estate managers governed by legislation, such as the NSW Trustee (governed by the NSW Trustee and Guardian Act 2009 NSW) and licensed trustee companies (governed by chapter 5D of the Corporations Act 2001 Cth and the Trustee Companies Act 1964 NSW), the Court's inherent jurisdiction is not routinely exercised to grant a commercial rate of remuneration to business interests engaged in the administration of a deceased estate.

1. The same can be said of the more summary, statutory entitlement to apply for remuneration for which PAA s 86 provides. An allowance of remuneration for "pains and trouble" can extend, in an appropriate case, to an allowance of remuneration at a commercial rate, but the expression "pains and trouble" sits comfortably - perhaps more comfortably - with an allowance of remuneration at something less than a commercial rate of return to a fiduciary. Authority can be found for the proposition that "pains" covers "responsibility and consequent anxiety and worry undertaken and undergone" and "trouble" refers to "work done": In Re Allan McLean (Deceased) [1911] 31 NZLR 139 at 144. For myself, I am inclined to the view that the expression "pains and trouble" is a composite one which ought not to be unnecessarily parsed.

1. As a matter of jurisdiction, an expansive, rather than a narrow, construction should be given to PAA s 86(1). It should be construed beneficially, in aid of the Court's inherent jurisdiction.

1. Nevertheless, in a case in which an application for remuneration is made by an executor, administrator or trustee after work has been done (the usual case), or outside the terms of the instrument pursuant to which the particular fiduciary office is held, a grant of remuneration by the Court might well occupy territory at the lower end of the range of remuneration that might otherwise be regarded as reasonable. The Court's task on an assessment of commission under PAA s 86(1) is to fix, by a summary process of estimation, an allowance that is just and reasonable for past work.

1. An executor, administrator or trustee who wants more than a moderate allowance should, in the ordinary case, make a special arrangement in which competing interests can be duly weighed. Two examples of why this should be so may be offered. Both involve a prospective executor, administrator or trustee protecting his, her or its interests prospectively. Neither is intended to reflect on the facts of this case.

1. Take, first, the case of a solicitor or accountant for a wealthy client who, satisfied with professional services rendered to date, asks his or her professional adviser to serve as an executor of his or her deceased estate. At the time of such a request the professional may well stand in a fiduciary relationship with the will-maker and, moreover, be bound by a professional, as well as an equitable, obligation to advise the will-maker to obtain independent advice before allowing to that professional an entitlement to perform the duties of an executor or trustee at full commercial rates of remuneration.

1. That, in itself, does not invalidate provisions of a will conferring a benefit on a person standing in a fiduciary relationship with a will-maker, who might give his or her fully informed assent to a legacy, charging clause and/or commission clause in favour of the fiduciary: In the Will of Shannon (1977) 1 NSWLR 210 at 217D-218D.

1. However, PAA s 86(1) should not, ordinarily, be deployed to grant a professional person a commercial rate of remuneration, for professional or executorial work, that he, she or it could, and should, have negotiated with a testator, or testatrix, at the time a will was made. If PAA s 86(1) were to be routinely used by professional advisers to obtain a grant of remuneration at a commercial rate, without notice to the client, the fiduciary protections available to a client, and the client's autonomy, might be prejudiced. Given a choice, a fully informed client might hesitate before nominating his or her professional adviser to an office over which, in death, he or she can have no control.

1. Professional work done by an executor and properly charged for and paid out of an estate does not, of itself, disentitle an executor from an allowance of commission or affect its quantification. An examination of case law reveals a variety of rules of practice about perceived relationships between, on the one hand, various types of will clauses (including, but not limited to a charging clause) and, on the other, a discretionary allowance of commission. Accumulated case law can provide substantial guidance in a particular case, but its field of operation is generally that of practice, rather than jurisdiction, save to the extent that it reflects the general rule that the Court's task is to determine what (if any) remuneration should be allowed, judged on an application of the "just and reasonable" standard, on the facts of the case at hand.

1. In all cases, regard must be had to the terms of the Will and the extent to which (if at all) a will-maker intended to benefit, or to permit a benefit to accrue to, an executor in deciding whether (and, if so, in what amount) the executor is to be allowed commission: In the Will of Kerrigan (1935) 35 SR (NSW) 242 at 245-246 and 251-252; In the Will of J Marsden (1926) 43 WN (NSW) 170; In the Will of TS Douglas (1951) 51 SR (NSW) 282 at 284-285; Re Craig (1952) 52 SR (NSW) 265 at 267-268; In the Will of Sheppard [1972] 2 NSWLR 714 at 720A-F; In the Will of Oddie [1976] 1 NSWLR 371 at 374-376; In the Will of Shannon [1977] 1 NSWLR 210 at 216C-F; Hawkins v Barkley-Brown [2010] NSWSC 48 at [47]-[55].

1. The second example is, perhaps, a variant of the first, at least in some cases. If a person nominated to the office of an executor, administrator or trustee of a deceased estate declines to take up the office unless remunerated on a certain basis, the Court (or, in respect of a trust, perhaps another appointor) may decide to pass over that nominee in favour of somebody able and willing to perform the role on terms more favourable to the estate.

1. The policy considerations that underlie these two examples apply to deceased estates of all sizes. However, they may have special resonance in relation to large estates because of the availability of property to fund a claim for remuneration, and the possibility (although by no means a certainty) of complexity that might warrant, if not require, resort to a professional adviser. The size of an estate does not, of itself, determine the availability, or quantum, of an allowance for commission; the focus is more directly on the work done by an executor in the period covered by the estate accounts from which an allowance of commission might be made: In the Will of Sheppard [1972] 2 NSWLR 714 at 720F.

1. The principles here discussed do not vary according to the size of the estate under consideration.

1. Nevertheless, in their application, the size and complexity of the estate in question are factors to be taken into account; and in the context of the present proceedings, it must be said, there is no established rule of practice that justifies a grant of remuneration, or a grant of remuneration at commercial rates, merely because an estate is a large one. Unlike the case of a liquidator, trustee in bankruptcy or receiver and manager operating in a commercial setting (where remuneration may be customarily allowed according to a scale approved by the Court), executor's commission is not determined according to the actual time spent, and neither is it determined as if executorship were a commercial enterprise: Watters Re Estate of Dibbs [2006] NSWSC 1277 at [16]. In each case, an allowance of remuneration under PAA s 86(1) is directed towards, and limited to, what is "just and reasonable" for the fiduciary's "pains and trouble".

1. That is to be borne in mind in every case but, perhaps, especially those cases where (as here and customarily on an application for executor's commission) the application for remuneration must be dealt with by the Court without the assistance of a contradictor and in the absence of any evidence of consent by each person (ordinarily a beneficiary but, possibly, in some cases, a creditor) potentially affected by any order for remuneration that might be made.

1. A convenient statement of how PAA s 86(1) is intended to operate may be taken from the judgment of Holland J in Estate of Edward Simshauser, deceased (NSW Supreme Court, 24 November 1978, unreported) at p 4:

"Section 86(1) itself lays down the basis upon which [an assessment of commission] is to be made, that is to say, an allowance that is just and reasonable for the pains and trouble taken by the executors. This requires a full and fair examination of the work and services performed for the estate by the executors taking into account the whole of the circumstances including the provisions of the will, the nature of the assets and, where a business is being carried on the nature of the business, difficulties encountered in carry it on and the time, efforts and skills required of the executors properly to carry on the business, realise assets and administer the estate generally in the interests of and for the benefit of the beneficiaries. The object is to arrive at a just and reasonable allowance either by way of percentage or by a lump sum for the services rendered by the executors: In The Will of HC White (1908) 8 SR (NSW) 582 at 584-585; In The Will of Sheppard (1972) 2 NSWLR 714 at 720-721."

1. In that case Holland J allowed "a lump sum in the nature of a management fee and remuneration for labour" in respect of part of the period covered by the accounts under review, and an allowance of commission based on a percentage of account transactions for the balance of the period.

1. If a prospective executor, administrator or trustee of a deceased estate wants to accept an appointment to one of those fiduciary offices as a business proposition, it is incumbent upon that person: (a) to reach an agreement with the testator or testatrix before death: (b) at an appropriate time, to secure the agreement of all interested parties, such as beneficiaries or creditors; or (c) to obtain approval to remuneration (from the Court, exercising probate jurisdiction, or from an appointor under a trust instrument) as a condition of appointment to the office: : Ayliffe v Murray (1740) 2 Atk 58 at 59-60; 26 ER 433 at 434; Plomley v Shepherd (1896) 17 NSWR (Equity) 215 at 217; F Jordan, Chapters on Equity in NSW (6th ed, 1947), p 124 note (m).

1. Parties with an interest in the due administration of a deceased estate may, that way, be allowed a leeway of choice in the matter. A prospective executor, administrator or trustee who does not make such a special arrangement, and accepts a fiduciary office that is prima facie a gratuitous one, cannot, in the ordinary course, complain if a discretionary allowance of remuneration out of the estate at a rate which, although "just and reasonable" for "the pains and trouble" by the fiduciary, is less than a commercial rate, less than what might have been negotiated at an earlier time or less than a perceived entitlement.

1. The discretionary character of an allowance of executor's commission is made more explicit under the new Probate Rules than was formerly the case. SCR Pt 78 r 76(2) describes an application for commission as a "request" that the Court allow commission. SCR Pt 78 r 83(c) provides that, in proceedings for the passing of accounts, "the Court ... if satisfied that any commission that is sought is appropriate, may make an order allowing commission". An executor has a statutory right to apply for commission, but such relief as may be available is within the discretion of the Court.

1. At least some of the difficulties associated with the quantification of executor's commission arise from the desirability of the primary decision-maker on an application for commission having knowledge and experience in dealing with the routine minutiae of estate administration.

1. That is particularly so because of the summary nature of the decision-making process engaged. The exercise undertaken often involves an element of intuitive judgment, not merely evaluation of proven facts in a single case, which is assisted by exposure to a broad range of cases over an extended time. That is a characteristic of the making of an expert judgment or in the expression of an expert opinion.

1. Recognition of this provides both an explanation of, and a justification for, the respect traditionally accorded to decisions of specialist registrars, with known expertise, by judges undertaking a review of their decisions: Estate of Sharman; Ex parte Verslius [1999] NSWSC 709 at [2]-[3]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [12]; Creer - Estate of Peters [2007] NSWSC 1291 at [11].

THE NATURE OF A REVIEW OF A REGISTRAR'S DECISION

1. This, in turn, requires consideration of the nature of the "review" for which UCPR r 49.19 provides.

1. A right of "review", no less than a right of "appeal", may be (and in this case is) governed by statute: Builders Licensing Board v Sperway Constructions (Syd) Pty Limited (1976) 135 CLR 616 at 619; Tasty Chicks Pty Limited v Chief Commissioner of State Revenue (NSW) (2011) 245 CLR 446 at 450 [5]. In the abstract, the word "review" can accommodate a range of meanings. It must, accordingly, take its meaning from the context in which it appears: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261.

1. The terms in which UCPR r 49.19 is expressed suggest that the Court must exercise an independent, discretionary judgment about the nature and extent of its review of a registrar's determination, having regard to the type of determination under review. That it should be required to do so is consistent with the guiding principles of case management enacted in CPA Part 6 Division 1 (ss 56-60). They require the Court, in the interpretation and application of the UCPR, to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings, and to do so having regard to considerations of efficiency in the use of judicial and administrative resources.

1. Since 1972 the nature of a judge's review of a registrar's determination of executor's commission has generally been governed by, or measured against, the judgment of Helsham J in In the Will of Sheppard [1972] 2 NSWLR 714 at 716G-717B. There his Honour held that, under rules of court then in force, a judge was able to review all aspects of the findings of the registrar, and not to restrict himself or herself to interfering only if the registrar acted upon some mistaken principle.

1. Following this, practitioners have generally accepted that a judge does not need to find error on the part of a registrar in order to intervene but may, upon an independent exercise of discretion, decline to intervene if no error can be identified in the registrar's making of a discretionary determination.

1. An authoritative restatement of that approach, in the context of the CPA and UCPR, can be found in the judgment of Hodgson JA in Tomko v Plasty (No 2) (2008) 71 NSWLR 61 at 64 [4]-65 [11], albeit that his Honour's analysis focussed primarily upon SCA s 46(4). He considered that that provision attracted principles similar to those applicable to a review of a registrar's decision under SCA s 121 (1) and/or UCPR r 49.19.

1. The following is an extract of his Honour's judgment, so far as is material:

"[5] I agree that the view ... that the review of a registrar's decision with respect to an order for security for costs is constrained by the principle stated in House v The King (1936) 55 CLR 499, is not strictly correct.

[6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.

[7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.

[8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

[9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

[10] In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323; 63 WM (NSW) 176 at 179. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence."

1. These observations bear upon, not only the nature of a review of a registrar's decision about executor's commission, but also the approach of the Court to questions of forensic onus and the scope of materials available to a judge on review of a registrar's decision.

1. The latter topic was addressed by Helsham J in In the Will of Sheppard [1972] 2 NSWLR 714 at 717B in a passage to which passing reference has already been made (in paragraphs 28-29 above):

"... The Court may of course have access to all the material available to the Registrar [on review of a determination under PAA s 86(1)]. No doubt it will have an affidavit in support of the appeal [sic]. But, further, it is proper that the Court should have before it a report from the Registrar, or in this case his deputy, setting out the reasons for the findings or order which was made and which is the subject of appeal or review. I have requested such a report in the present case, and I think it should be the practice to furnish such a report. ..."

1. Whether an applicant for review should be permitted, in the conduct of a review, to supplement the evidence adduced before the registrar is one of the questions to which the Court needs to direct its attention, in each case, when considering the scope and extent of a review under UCPR r 49.19: having regard to the guiding principles set out in CPA Part 6 Division 1 and (to use the expression found in CPA s 58(1)) the "dictates of justice" in the particular case.

1. A grant of leave to the plaintiffs (executors) to adduce evidence supplementary to that before the registrar is justified in the present proceedings because:

(a)   the plaintiffs, genuinely, and on reasonable grounds, approached their application to the registrar on an assumption that, prima facie, the registrar would apply the "usual" commission or percentage "rates" published in one practice book (Mason & Handler) widely used; and

(b)   informed by his own, extensive professional experience of the probate jurisdiction, the registrar approached the application on an assumption that the applicable, prima facie, standard to be applied fell to be determined by reference to the "ordinary" range of rates published in another well known practice book (Geddes, Rowland & Studdert).

1. Ultimately, as this judgment determines, little turns on that difference of approach for two reasons. First, however remuneration for an executor, administrator or trustee of a deceased estate is to be assessed (and whether it is expressed as a "commission or percentage" or in some other form), the ultimate standard set by PAA s 86(1), and the Court's inherent jurisdiction, is what is "just and reasonable". Secondly, each of the plaintiffs and the Registrar was, as the Court is, mindful that this is the ultimate standard to be applied.

1. Nevertheless it is appropriate, in the circumstances of this particular case, that the plaintiffs have an opportunity on the Registrar's decision being reviewed, to place before the Court evidence which, had they anticipated the registrar's approach, they might have adduced before him.

THE DECISION, AND REASONS FOR DECISION, UNDER CHALLENGE

1. The reasoning of the registrar in the Reasons for Decision published in support of the decision under review turns on the following points:

(a) First, in having regard to the size of the estate, he found, correctly, that it is large (sworn, for probate purposes, at a net value of $39,540,467.66 net): [3], [5] and [9].

(b) Secondly, he took into account the terms of the will, describing them as not imposing on the executors any particularly onerous ongoing responsibility: [15].

(c)   Thirdly, in having regard to the composition of the estate, he described it as "fairly routine" for a large estate ([5] and [12]-[14]) and held that, on the evidence adduced before him, its administration was not unduly complex ([6]) although, he observed, there were a number of tasks that might be considered out of the ordinary ([10]).

(d)   Fourthly, applying observations of Windeyer J in Spence v Spence [2003] NSWSC 1232, he determined that, because further accounts and a further application for commission could reasonably be expected, it was appropriate to allow commission by way of percentage rather than by lump sum: [8].

(e)   Fifthly, he took his bearings from what, in his experience, has long been the "usual" range of commission allowed by way of percentage - 0.25% to 1.25% on assets transfers in specie, 0.5% to 2.5% on capital realisations and 1% to 5% on income collections: [11].

(f)   Sixthly, he reviewed each of the three relevant categories of estate property dealings (capital realisations at [12], asset transfers at [13] and income collections at [14]), taking into account the nature and scope of the executors' pains and trouble in each context, before returning (in [15A] and [15B]) to a consideration of a larger question. He was concerned that "rather than simply apply a percentage [he] should allow a percentage that results in an amount that is a fair allowance for the executors' pains and troubles." In addressing that question, factors he took into account included: the large size of the estate; the terms of the will; earlier payment of legal and accounting costs; the absence of any claim for professional work, as distinct from executorial work, by the solicitor executor; and the availability of two executors to share the load of performance of executorial duties.

(g)   Seventhly, troubled by the quantum of commission that would be allowed upon an application of rates in the mid-range of those "usual rates" (a total sum of $395,642.15), he moderated the rates to be applied so as to quantify the commission allowed overall in a sum which he assessed (by reference to a standard attributed to Helsham J in Estate of Sheppard [1972] 2 NSWLR 714 at 721) as "a fair allowance" for 18 months of executorial work and responsibility: [15A]-[15B].

1. In this process of reasoning, the factors taken into account were described, in general terms (at [4]), as being:

(a)   the size of the estate.

(b)   the complexity of the estate.

(c)   the complexity of the terms of the will or scheme of distribution under the will.

(d)   the degree of promptness, efficiency and diligence shown by the executors in carrying out their executorial duties.

(e)   the amount of work carried out by the executors and time spent.

(f)   the amount of responsibility involved.

(g)   problems encountered by the executors in the course of administering the estate.

1. In his consideration of those factors he specifically recorded that the executors had done an exemplary job in their administration of the estate in a timely, careful and efficient manner: [10].

1. He noted that, in accordance with probate practice, and "[unlike remuneration of other fiduciaries such as liquidators and trustees in bankruptcy, executors' commission is not assessed according to fees by hourly rates fixed according to who did the work and what work was done (Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [16]), and for that reason affidavits in support of commission give details of work done in summary form rather than detailing each attendance (Estate of Peters [2007] NSWSC 1291 at [28])". In support of this observation, he also noted that "costs in respect of an affidavit that is unduly long or includes surplus or irrelevant material may be disallowed: Geddes, Rowland and Studdert, Wills Probate and Administration Law in NSW (LBC, 1996) 828; Hastings and Weir, Probate Law and Practice (LBC, 2nd ed, 1948), 672".

1. On the basis of the material before him, and bearing in mind a perceived need to "allow a percentage that results in an amount that is a fair allowance for the executors' pains and troubles, rather than "simply apply a percentage" (to paraphrase [15A]), he determined that, in respect of accounts covering the period from 29 December 2009 to 30 June 2011, the executors should be allowed commission in the total sum of $225,875.74, representing the sum of the following amounts:

(a) $179,621.45, representing a percentage of 0.75% on capital realisations of $23,949,526 (SCR Pt 78 r 81(3)(a), now SCR Pt 78 r 84(2)(a)).

(b) $33,047.61, representing 1.75% on income collections of $1,888,435 (SCR Pt 78 r 81(3)(b), now SCR Pt 78 r 84(2)(b)).

(c)   $13,206.68, representing 0.25% on assets transferred in specie to the value of $5,282,675 (SCR Pt 78 r 81(3)(c), now SCR Pt 78 r 84(2)(c)).

CONSIDERATION ON REVIEW

1. On the hearing of the executors' review application, counsel for the executors contended that, in the circumstances of this case, commission should appropriately be allowed in the following range of percentage rates:

(a)   On capital realisations, 0.75%-1.5% (contrasted with the registrar's selection of 0.75%).

(b)   On income collections, 2%-3% (as opposed to 1.75%).

(c)   On the value of assets transferred in specie, 0.5%-0.75% (as opposed to 0.25%).

1. On these figures, the resultant allowance of commission for which the executors contend is in the range between $243,803.51 and $455,515.97.

1. Upon an independent assessment of the commission that should be allowed to the executors I have the benefit of supplementary evidence that lends force to the executors' criticism that the amount allowed by the registrar is too low. He was, in my judgement, entitled to come to the conclusion he reached, the way he reached it, on the materials before him. However, with additional evidence and the benefit of submissions by counsel, I accept that an increase in the amount of commission allowed is appropriate to the facts of the case. The executors were, perhaps, more active in the performance of executorial duties than the registrar allowed and he was, perhaps, less generous than he might have been in his discounting of the complexity, and ordinariness, of the tasks they performed.

1. Evidence adduced on review that was not before the registrar included (for example) evidence that, by timely and astute decision-making in the liquidation of two companies, the executors had saved the estate from an exposure to capital gains tax liability.

1. In reaching my conclusion that an increase in the commission allowed is appropriate, I record that I agree with the registrar's focus, not merely on percentage rates of remuneration, but on an outcome moderated by considerations of "fairness", as he put it.

1. I do not understand him to have intended, by that term, to convey an idea different from the express criterion for which PAA s 86(1) provides: an allowance for "pains and trouble" that is "just and reasonable".

1. Had I understood his criterion of "fairness" to differ from that statutory criterion I would have been obliged to find error in his approach. However, when his Reasons for Decision are read as a whole, I am satisfied that there is no divergence.

1. In making my own determination about the amount of commission that is appropriate, I take into account, in addition to the registrar's primary findings of fact, factors not specifically adverted to by him.

1. First, the Will of the deceased (dated 24 December 2006) expressly acknowledged, with evident approval, that her executors could be awarded commission in addition to professional charges or any legacy. That acknowledgement is predicated upon the deceased's description of the executors to whom a grant of probate was made (on 30 June 2010) as, respectively, a Chartered Accountant and a Solicitor.

1. Clause 13 of the Will is in the following terms:

"13 [a] Any Trustee or Executor being a solicitor, stockbroker, or accountant or other person engaged in any profession or business may be so employed or act and shall be entitled to charge and be paid all professional or other charges for any business or act done by him or his firm in connection with the administration of this Estate or the trusts hereof including acts which an Executor or Trustee could have done personally and such charges are to be made at the usual rate applying at the time the work charged for is performed and shall not prevent any such Trustee or Executor also applying to the court for commission for his pains and troubles

[b] My Executors and Trustees, in addition to accepting any gift given to them by this Will, may apply to the court for commission for their pains and trouble.

[c] Gifts to persons who are named as my Executors or Trustees are not dependent on those persons acting as Executors or Trustees. [Emphasis added]"

1. It is not necessary, here, to recount particular steps taken towards a grant of probate. However, of the two professional men primarily nominated as "Executors and Trustees" in the Will (one of them a chartered accountant, the other a solicitor) the chartered accountant renounced probate in favour of his son, also a chartered accountant. Clause 13(c) of the Will has work to do because, in the body of the Will, each of the executors to whom probate was granted is named as a beneficiary. The solicitor received gifts of chattels (clauses 3(d) and 5(c)) together with shares in a company (clause 4(a)(iv)). The chartered accountant who renounced probate in favour of his son received a legacy of $100,000 (clause 4(o)) said by the testatrix to be "for all his assistance, advice and friendship with both my husband and myself over the years." An inference that the testatrix intended that her executors be treated more generously than most can readily be inferred.

1. No clause in a Will expressed as generally as is clause 13 can displace principles applicable to an exercise of jurisdiction under PAA s 86(1) or, more particularly, justify either a doubling up of remuneration recovered by, or allowed to, an executor or an allowance of commission at a commercial rate. Nevertheless, clause 13 is a factor to be taken into account upon an assessment of commission.

1. Secondly, none of the six residuary beneficiaries named in the Will, upon whom the burden of any allowance of commission in favour of the executors must fall, lodged an objection to the executors' application for commission, or appeared in opposition to the executors' application for review of the registrar's decision. In compliance with the old Probate Rules (SCR Pt 78 r 76) the executors' application for commission was advertised. No objection was filed pursuant to those rules (SCR Pt 78 r 77A).

1. The absence of an objection to an allowance of commission is not as powerful as an expression of consent by a beneficiary, but it is a factor to be taken into account.

1. Taking those factors into account, as well as the executors' elaboration of the work undertaken by them in the period under review and the observation of Windeyer J in Phillips Re Estate of Joel [2007] NSWSC 639 at [11] that "if an estate is a very large one, then commission is usually allowed not at the top end of the rates but towards the middle or lower end of the rates", I determine that (for the period between 29 December 2009 and 30 June 2011) the executors should be allowed commission in the total sum of $303,677.34, calculated as follows:

(a)   $239,495.26, representing a percentage of 1% on capital realisations of $23,949,526;

(b)   $37,768.70, representing a percentage of 2% on income collections of $1,888,435; and

(c)   $26,413.38 representing a percentage of 0.5% on assets transferred in specie to the value of $5,282,675.

1. That amount of commission ($303,677.34) is a just and reasonable allowance for the pains and trouble of the executors having regard to all the circumstances of the case, including the terms of the Will as a significant, but not determinative, factor.

1. Accordingly, I make the following orders:

(1)   Order that Order 2 of the Orders made by the registrar on 11 December 2012 be set aside.

(2)   Order that, in lieu of that Order the Executors be allowed commission (for the period from 29 December 2009 to 30 June 2011) in the total sum of $303,677.34 (representing commission at the rate of 1% on capital realisations of $23,949,526, 2% on income collections of $1,888,435 and 0.5% on assets transferred in specie to the value of $5,282,675).

(3)   Order that the costs of the Executors' Notice of Motion filed 21 December 2012 be paid out of the estate of the deceased on the indemnity basis.

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