Ross v Gordon
[2024] ACTSC 158
•23 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ross v Gordon |
Citation: | [2024] ACTSC 158 |
Hearing Date: | 8 May 2024 |
Decision Date: | 23 May 2024 |
Before: | Mossop J |
Decision: | 1. The Originating Application dated 19 February 2024 is dismissed. 2. The plaintiff is to pay the defendant’s costs of the proceedings. 3. Any party seeking a different costs order (including a gross sum costs order) must file an application in proceeding accompanied by written submissions limited to not more than three pages within seven days. |
Catchwords: | ESTOPPEL – ISSUE ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – issue not raised in previous proceedings before the court – estate’s ability to pay legacy to plaintiff if cheques written by the deceased unenforceable not an issue for determination in previous proceedings – issue not addressed in the court’s reasons – issue estoppel does not arise ESTOPPEL – ANSHUN ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – failure to plead lack of funds to pay legacy not unreasonable – pleading not required to address claim in previous proceedings – where costs of previous proceedings influenced estate’s capacity to pay legacies – Anshun estoppel not established SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Entitlement of executor to seek reimbursement of legal fees incurred in administration of estate – statutory entitlement established by Trustee Act 1925 (ACT) and Court Procedures Rules 2006 (ACT) – unnecessary to determine whether legal expenses should be apportioned between the different capacities in which defendant sued |
Legislation Cited: | Administration and Probate Act 1929 (ACT), s 32 Court Procedures Rules 2006 (ACT), rr 1700, 1732 Family Provision Act 1969 (ACT), s 8 Trustee Act 1925 (ACT), s 59(4), Dictionary |
Cases Cited: | Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Blair v Curran (1939) 62 CLR 464 National Trustees Executors and Agency Co. of Australasia Ltd v Barnes (1941) 64 CLR 268 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 Ross v Gordon (No 2) [2023] ACTCA 40 Ross v Gordon (No 3) [2022] ACTSC 289 |
Texts Cited: | G Dal Pont, Interpretation of Testamentary Documents (LexisNexis Butterworths, 2019) |
Parties: | James Ross ( Plaintiff) Donna Gordon as executor of the estate of Olga Hart ( Defendant) |
Representation: | Counsel T Crispin ( Plaintiff) W Sharwood ( Defendant) |
| Solicitors Ray Swift Moutrage and Associates ( Plaintiff) Tim Sharman Solicitors ( Defendant) | |
File Number: | SC 66 of 2024 |
MOSSOP J:
Introduction
1․By Originating Application dated 19 February 2024, the plaintiff has sought an order pursuant to s 32 of the Administration and Probate Act 1929 (ACT) that the defendant, Donna Gordon, be removed as the executor of the estate of Olga Hart and be replaced with James Ross (the plaintiff) and Kenneth Hubert of Capon & Hubert Lawyers & Mediators. At the hearing of the proceedings, the plaintiff sought only the appointment of Mr Hubert and did not press for the order that the plaintiff himself be appointed as a joint administrator.
2․The plaintiff says that the grounds for removal arise under s 32(2)(c) of the Act. The plaintiff says that the defendant has refused to perform her obligations as executor of the estate of Olga Hart because she has indicated in writing that:
(a)the estate will not pay the bequest to James Ross (the plaintiff);
(b)the estate will not pay the bequest to Warren Law; and
(c)the estate will reimburse the executor (the defendant) for legal costs to which she is not entitled.
Section 32
3․Section 32 of the Administration and Probate Act sets out the circumstances in which the court may make orders for the removal of an executor of an estate.
32Discharge or removal of executors and administrators
(1)In this section:
administrator includes an administrator appointed under this section.
Note Administrator includes any person to whom administration is granted (see dict).
executor means an executor who has been granted representation.
(2)This section applies if an executor or administrator—
(a)remains out of the ACT for more than 2 years; or
(b)wants to be discharged from the office of executor or administrator; or
(c)after the grant of representation or appointment—
(i) refuses to act in the office; or
(ii) is unfit to act in the office; or
(iii) is incapable of acting in the office.
(3)The Supreme Court may order, on the terms and conditions it considers appropriate—
(a)the discharge or removal of the executor or administrator (the old executor or administrator); and
(b)the appointment of someone else as administrator (the new administrator) in place of the old executor or administrator.
(4)For subsection (3), the Supreme Court may make—
(a)orders for vesting the estate in the new administrator; or
(b)orders about accounts; or
(c)any order about costs.
(5)The old executor or administrator is not liable for an act done or omission made after the date of the order.
(6)On appointment of a new administrator—
(a)the property and rights of the estate vested in the old executor or administrator vest in the new administrator; and
(b)the liabilities properly incurred in the administration of the estate by the old executor or administrator vest in the new administrator; and
(c)the new administrator has the same functions as if probate of the estate had originally been granted to the new administrator.
(7)If the Supreme Court considers it necessary, notice of an application for the discharge or removal of the old executor or administrator may be served on anyone the Supreme Court directs.
Previous proceedings
4․The present application follows a series of claims commenced by the plaintiff seeking money from Olga Hart’s estate. The factual background to the proceedings, as described by the Court of Appeal in Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 is as follows (at [1]‑[2]):
Prior to her death, the deceased, Olga Hart, established the Olga Hart Trust. She wrote three cheques totalling $1,200,500 to the Olga Hart Trust. The amount of the cheques was greater than the likely value of the deceased’s estate. Those cheques were not presented prior to her death. The purpose of her adopting this course was to create a liability for her estate after her death in order to prevent the appellant, James Ross, from making a claim against her estate for more than the amount which she was prepared to leave to him. After her death, the cheques were presented and dishonoured by the bank. As the deceased had feared, the appellant made a claim for family provision under the Family Provision Act 1969 (ACT). He also made various challenges to the arrangement that the deceased put in place. Those challenges focused upon the obligations of the executor and the daughter of the deceased, Donna Gordon, who was also one of the beneficiaries of the Olga Hart Trust.
A judge of the Supreme Court (the primary judge) rejected each of the challenges to the arrangement made by the deceased: Ross v Gordon [2021] ACTSC 41 (Reasons). She therefore found that, because of the liability on the cheques, the estate had no net assets and hence the appellant’s claim for family provision was futile. Nevertheless, she undertook a contingent assessment of the claim for family provision and would have dismissed it.
5․Mr Ross appealed to the Court of Appeal, which found that the cheques did not create a liability in the estate because there was no consideration for them. It remitted the proceedings to the primary judge because Mr Ross indicated an intention to re-agitate the family provision claim in light of a claimed increase in the value of the residential property that was the principal asset of the estate.
6․However, when the matter came back before the primary judge, counsel for Mr Ross indicated that the family provision claim was not pressed: Ross v Gordon (No 3) [2022] ACTSC 289 at [10]. Notwithstanding the limited terms of the remittal, counsel for Mr Ross submitted that the court ought to make a declaration as to the inability of the estate to treat the cheques as giving rise to any liability. The primary judge determined that she did not have jurisdiction to address that relief, given the terms of the remittal.
7․The Court of Appeal had ordered that the costs of the appeal would form part of the costs of the proceedings in the Supreme Court. The primary judge ordered that Mr Ross pay the defendants’ costs of the appeal.
8․Mr Ross then appealed to the Court of Appeal again: Ross v Gordon (No 2) [2023] ACTCA 40. He contended that the primary judge had erred in finding that her jurisdiction upon remittal was limited to consideration of Mr Ross’ family provision claim. He also contended that the primary judge had erred in dealing with costs in the way that she did.
9․The ground of appeal relating to the scope of the Court of Appeal’s remittal order was dismissed. The appeal in relation to costs was allowed and the Court of Appeal re‑exercised the costs discretion and made orders that each party was to pay their own costs of the Supreme Court proceedings and each of the two appeals to the Court of Appeal.
The will
10․The parts of the will relevant to the present application are those relating to specific gifts and the residue of the estate.
Specific Gifts
14.I GIVE AND DEVISE to my grandson WILL IAN GORDON and my granddaughter GRACE ASHLEY GORDON my residence at 28 Percy Crescent, Chapman ACT in equal shares upon the younger of them attaining the age of twenty-one years BUT if one of them has already died or does not survive me or dies before attaining the age of twenty-one years or before attaining a vested interest and leaves no children, the survivor of my grandchildren shall, upon attaining the age of twenty-one years, take the share which their sibling would otherwise have taken.
15.I GIVE to my grandson WILL IAN GORDON my Antique Rifle upon his attaining the age of eighteen years.
16.I GIVE to my grandson WILL IAN GORDON one of my two collectible original One Dollar AUD coins upon him attaining the age of eighteen years.
17.I GIVE to my granddaughter GRACE ASHLEY GORDON my white BMW hatchback car upon her attaining the age of eighteen years.
18.I GIVE [to] my granddaughter GRACE ASHLEY GORDON one of my two collectible original One Dollar AUD coins upon her attaining the age of eighteen years.
19.I GIVE AND BEQUEATH the sum of One Hundred Thousand Dollars ($100,000) to my nephew WARREN JOHN LAW of Harvey Bay, Queensland.
20.I GIVE AND BEQUEATH the sum of Two Hundred Thousand Dollars ($200,000) to my former de facto JAMES YOUNG ROSS of 55 Ross Road, Queanbeyan, NSW.
21.I GIVE my dining table and the lounge suite located in my residence at 28 Percy Crescent, Chapman ACT to my former de facto JAMES YOUNG ROSS of 55 Ross Road, Queanbeyan, NSW.
Residue of my estate
22.Contingent upon her surviving me, I give, devise and bequeath the residue of my estate to my beloved daughter DONNA MAREE GORDON BUT if she does not survive me, then to my grandchildren WILL IAN GORDON and GRACE ASHLEY GORDON in equal shares.
The plaintiff’s two contentions
11․Mr Ross contended that the failure to pay the amounts to him and Warren John Law demonstrated Ms Gordon’s unfitness to act in the office of executor. He also contended that the preparedness of the executor to pay the costs involved in defending the earlier proceedings out of the estate, in circumstances where the order of the Court of Appeal did not specifically provide that they could be paid from the estate, was a further indication of unfitness.
12․Each of these issues will be dealt with separately.
Was it inappropriate for the executor to fail to pay Mr Ross?
13․Mr Ross pointed to his entitlement to a payment of $200,000 under clause 20 of the will.
14․The defendant said that there is no money in the estate which would permit Mr Ross to be paid because the specific gifts to others in the will take priority over the amount identified as payable to him. Each of the gifts in clauses 14-18 and 21 were specific legacies because they involved a specific gift of some part of the testator’s estate which is identified and separated from the rest of the estate. In contrast, the gifts to Mr Ross and the deceased’s nephew, Mr Law, were general legacies because they made no reference to specific property of the testator but are to be satisfied “out of the general assets of the estate without regard to any particular fund, thing or things”: G Dal Pont, Interpretation of Testamentary Documents (LexisNexis Butterworths, 2019) at 9.4, 9.7. The defendant submitted that if an estate is insufficient to fulfil a general legacy, the legacy abates. A specific legacy does not abate with general legacies. A shortfall in a general legacy cannot be met from a specific legacy: Dal Pont at 9.8, 9.27.
15․In response to this contention, Mr Ross, while not contesting the general principles as to the abatement of legacies, said that the executor is not entitled to adopt that position by reason of the principle of issue estoppel or, alternatively, Anshun estoppel.
16․In order to understand these competing contentions, it is necessary to describe in more detail the assets of the estate and the effect of the gifts made under the will.
17․On 23 October 2018, Ms Gordon affirmed an affidavit in support of her application for probate. That affidavit annexed an inventory of property describing the estate’s assets of which she was aware. It included a residential property, certain other items that were the subject of specific gifts, amounts in financial institutions and shares in companies. The extent to which the assets of the estate were dominated by the residential property is indicated by the fact that the real property was estimated to be worth $800,000 and the gross value of the assets was estimated at $874,256. The aggregate of the amounts in financial institutions and shares in companies disclosed in the inventory was $44,860.
18․The residential property has now been sold for $1,350,000 and the net funds ($1,353,611.49) are currently held on trust for the beneficiaries, pursuant to clause 14 of the will. An amount of $31,199.10 was spent by Ms Gordon in preparing the property for sale. For present purposes, I will proceed on the basis that there is an entitlement to reimbursement of this amount, but that this should be from the proceeds of the sale of the property. It is unnecessary for present purposes to make any concluded finding on that issue because it makes no difference to the outcome. In her affidavit, Ms Gordon deposes to the fact that she does not, at this stage, intend to reimburse herself this amount. This would have the effect of correspondingly increasing the value of the trust to its beneficiaries, her children.
19․Ms Gordon has also spent $10,193.23 on testamentary expenses. Part of this was met by the estate’s assets held in financial institutions. The remainder was paid by Ms Gordon personally and she has not yet been reimbursed by the estate.
20․So far as the specific gifts referred to in clauses 14-21 are concerned, the position is as follows:
(a)the net proceeds of the sale of the residential property (clause 14) are held on trust for the beneficiaries until they reach the vesting age of 21 years;
(b)the antique rifle (clause 15) and coin (clause 16) are held by the executor as the beneficiary has not yet attained the vesting age of 18 years;
(c)the motor vehicle (clause 17) and coin (clause 18) are held by the executor until the beneficiary reaches the vesting age of 18 years;
(d)the dining table and lounge suite (clause 21) has been delivered to Mr Ross in accordance with the terms of the will; and
(e)the gifts of money to the nephew of the deceased ($100,000) and to Mr Ross ($200,000) have not been paid (clauses 19-20).
21․All the cash in the financial institutions was used to pay the deceased’s debts at the date of her death, her funeral expenses and court fees relating to the application for a grant of probate. The amount in the financial institutions was approximately $5708 and the total expenses in these categories was $10,193.23. The shortfall was met by Ms Gordon personally and she has not been reimbursed from the assets of the estate.
22․The shares that form part of the estate had a value of $36,767 as at 27 March 2024.
23․The other personal property of the deceased listed in the inventory was either donated or sold with the residential property. The executor still has, in her possession, items valued at approximately $1800.
24․In addition, Ms Gordon has paid $135,976.50 in legal fees as well as $1650 paid to a mediator for the purposes of the previous proceedings in the Supreme Court and Court of Appeal described earlier. These amounts have not been reimbursed to her. She asserts that she is entitled to reimbursement of these amounts as executor.
25․In summary, the assets that remain after disbursement of the other specific gifts are the shares worth $36,767 and personal items worth approximately $1800. The unpaid liabilities are the legal and mediation fees totalling $137,626.50.
26․If that assessment of the assets and liabilities is correct, then there are clearly no funds which might be used to give effect, wholly or partially, to the gifts to Mr Ross or the deceased’s nephew in clauses 19 and 20.
27․In an attempt to avoid the consequence of there being an absence of funds, counsel for Mr Ross submitted that the principle of issue estoppel or Anshun estoppel had the effect that, in the present proceedings, the executor was precluded from relying on the absence of funds to refuse to disburse the $200,000 to his client because that was an issue which was determined in the earlier proceedings or ought to have been the subject of a Defence pleaded by the defendants in those earlier proceedings.
28․This claim lacks any merit.
29․Circumstances in which an issue estoppel may be established are described in Blair v Curran (1939) 62 CLR 464 at 531-532:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue‑estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
30․None of the previous judgments determined as a matter of fact that there would be funds to allow a payment to Mr Ross as contemplated by clause 20. That fact did not form any part of the foundation of the decisions made.
31․The proceedings before the primary judge involved claims for declaratory relief and an order pursuant to s 8 of the Family Provision Act 1969 (ACT). In the alternative, the plaintiff sought damages for the tort of devastavit as well as equitable compensation. The principal issue before the primary judge was whether or not the cheques written by the deceased created a liability in the estate which deprived it of any funds to make any gift to any beneficiary. If the cheques were effective, then the conduct of the executor in presenting the cheques was alleged to amount to the tort of devastavit, a breach of her fiduciary duty or alternatively engaging in an equitable fraud on the power. By this pleading, Mr Ross sought to avoid the liability created by the cheques and hence increase the funds available in the estate, thereby enhancing his claim for family provision. Alternatively, if the cheques were effective, he sought to assert liability on the part of Ms Gordon in her personal capacity or as executor (the pleadings were inconsistent) in tort or in equity so as to permit him to recover $200,000.
32․Apart from the liability of the estate arising from the presentation of the cheques, the ultimate capacity of the estate to pay the legacy to Mr Ross was not a matter upon which the court’s decision depended. It was not a necessary foundation of the court’s conclusion that the cheques were ineffective that the estate otherwise had sufficient assets to pay Mr Ross’ entitlement in full or in part. That was simply not an issue in the proceedings.
33․It is true that counsel for Mr Ross asked a single question of the executor during the course of cross-examination, in which he suggested that if the cheques were not found to be an enforceable debt there would be “no impediment on the estate making its bequests”. Ms Gordon answered “Correct”. Given the generality and ambiguity of the question, it cannot be said that the answer was wrong. However, it does not matter. The fundamental point is that the particulars of a distribution in accordance with the will if the cheques were set aside was not an issue which was required to be determined in the proceedings and was not something which was necessarily established as a legal foundation or justification of the court’s conclusion.
34․That is sufficient to defeat Mr Ross’ contention. However, if there was any merit in the contention, further issues would have had to have been addressed. The first is whether such a claim is available to prove misconduct by an executor. The unspoken assumption in the submissions made by Mr Ross was that by reason of some determination in the earlier proceedings, the executor became bound to pay $200,000 to Mr Ross even if, as a matter of fact, there were no funds permitting that to occur and the absence of funds was not the result of any misconduct. It is not clear how that could be the case. Second, it is not clear how any issue estoppel could arise in relation to a state of fact which was itself altered by the conduct of the proceedings in relation to which the issue estoppel was said to arise. In the present case, the principal reason why there are no funds left for the payment of any part of the legacy to Mr Ross is because of the legal costs involved in the proceedings which he initiated. The ultimate costs outcome was only determined by the second Court of Appeal proceedings. That outcome had the effect of altering the liabilities of the estate and only occurred after the determination of the claim said to give rise to the issue estoppel.
35․There is also a claim of Anshun estoppel. The circumstances in which an Anshun estoppel may arise are summarised in the decision of the New South Wales Court of Appeal in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81]-[85]. In particular, McColl JA said at [85] (Giles and Campbell JJA agreeing):
In considering whether an Anshun estoppel has been established it is necessary to bear in mind that “shut[ting] out a claim … a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’”: Ling v Commonwealth (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos [v Doman [2001] NSWCA 347] (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.
36․There will be an estoppel if it “appears that the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602. Having regard to the pleadings in the first matter which sought to address the effectiveness of the cheques and then reopen the terms of the will through an application for family provision, it cannot be said that it was unreasonable for the executor to have not pleaded that there would not, in any event, be funds available to pay the legacy to Mr Ross.
37․First, it was not a requirement in order to uphold the terms of the will or to address the claims relating to the enforceability of the cheques to make an assessment of, and plead, the extent of funds that might be available to pay the legacy as identified in the will.
38․Second, the claim for family provision, if successful, would have allowed rewriting of the terms of the will in a way that favoured Mr Ross and hence would have avoided the consequences that might otherwise flow from the fact that his legacy was a gift of money not tied to specific property.
39․Third, the amount that would be available for distribution was inevitably going to be influenced by the costs incurred in the proceedings by the executor and any other costs for which the estate was liable. It is that costs liability which has presently reduced the assets of the estate in a way that prevents any payment to Mr Ross.
40․Fourth, the capacity of the estate to pay the legacies was not fixed in time. In addition to the ever-increasing burden of legal fees, which would reduce the capacity of the estate, there was always the potential for a gift to fail as a result of the beneficiary failing to reach the vesting age. Although it was statistically unlikely, there was still a possibility that the gift of the deceased’s residence to her grandchildren would fail if they both failed to reach the vesting age of 21, and this would mean that there were assets within the estate that could satisfy the gift to Mr Ross.
41․In summary, there is no reason why the executor is not entitled to rely upon the fact that there are presently insufficient assets within the estate to make the payment to Mr Ross in order to counter Mr Ross’ contention that the executor has misconducted herself by failing to make that payment to him.
Payment of legal fees
42․Mr Ross also contended that the estate was not obliged to reimburse Ms Gordon for the legal expenses that she had incurred because the order of the Court of Appeal did not specifically authorise the payment of those fees out of the estate.
43․This was initially put on the basis that, in order for the executor’s fees to be payable at all, it was necessary that the order of the Court of Appeal specifically authorise the payment of those fees from the estate. Counsel for Mr Ross appeared to retreat from that position somewhat, recognising, in light of the decision in National Trustees Executors and Agency Co. of Australasia Ltd v Barnes (1941) 64 CLR 268, that if costs have been properly incurred as an incident of the administration of the estate, the executor is entitled to indemnity.
44․That is clearly correct. Section 59(4) of the Trustee Act 1925 (ACT) provides:
(4)A trustee may reimburse himself or herself, or pay or discharge out of the trust property, all expenses incurred in or about the execution of his or her trusts or powers.
45․That provision applies to the defendant in her role as executor of the estate of the deceased: Trustee Act, Dictionary (definition of “trustee” and “legal representative”). Further, rr 1732(1) and (2) of the Court Procedures Rules 2006 (ACT) provide that, unless the court otherwise orders, a party sued as trustee (which includes a personal representative of a deceased: r 1700) is entitled to have costs of the proceeding that are not paid by someone else paid out of the fund held by the trustee on a solicitor and client basis.
46․A subsidiary argument was presented that, because Ms Gordon was sued not only as executor of the estate but also in her capacity as the trustee of the Olga Hart Trust and in her personal capacity, the costs incurred by reason of her participation in the proceedings in those separate capacities would not be recoverable from the estate.
47․This was only the subject of very limited argument. The decision of the Court of Appeal did not distinguish between the costs incurred by Ms Gordon in the different capacities in which she was sued. It is unnecessary to reach a final conclusion as to whether any part of the legal expenses incurred should be treated as separately incurred by Ms Gordon in her personal capacity or her capacity as trustee of the Olga Hart Trust. It is sufficient to conclude that Mr Ross has not established that the extent of indemnity available to Ms Gordon from the estate is so little that there are funds available that ought to have been paid to him. It is to be remembered that the available assets of the estate are approximately $38,567 (see [25] above) and the legal costs and meditation fees incurred in the previous proceedings are $137,626.50 (see [25] above). Mr Ross would have needed to prove that there was an excess of assets over liabilities that ought to have been paid out and that the failure to do so amounted to some form of misconduct on the executor’s part. He has not done so.
Other issues
48․Having regard to the failure on the part of Mr Ross to establish any misconduct, impropriety or inadequacy in the executor’s performance of her duties, the basis for the making of an order under s 32 of the Administration and Probate Act is not established. In those circumstances, it is unnecessary to address the further issue that would have arisen, namely, whether or not, as a matter of discretion, an order under s 32 should be made. That would have required consideration of whether there was any utility in making an order in circumstances where, as a matter of fact, there are insufficient funds to make the payment to Mr Ross or the nephew of the deceased. Counsel for Mr Ross suggested the possibility that there may be causes of action available to a new administrator that could be brought against third parties and hence increase the funds available to the estate. The possibility that a new administrator might identify a viable cause of action not already considered by the executor that would increase the assets of the estate was not shown to be significant.
49․Further, given that the proposed executor was a solicitor, it would be significant to take into account the additional costs burden imposed upon the estate in circumstances where it was required to hold on trust substantial property until the beneficiaries reached the vesting age.
50․Because the plaintiff has not established any failure to properly administer the estate, it is unnecessary to consider these issues further.
Orders
51․For those reasons, the orders of the Court are:
1.The Originating Application dated 19 February 2024 is dismissed.
2.The plaintiff is to pay the defendant’s costs of the proceedings.
3.Any party seeking a different costs order (including a gross sum costs order) must file an application in proceeding accompanied by written submissions limited to not more than three pages within seven days.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 May 2024 |
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