The Public Trustee as administrator of the estate of Jean Mary O'Sullivan v O'Sullivan

[2025] WASC 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE PUBLIC TRUSTEE as administrator of the estate of JEAN MARY O'SULLIVAN -v- O'SULLIVAN [2025] WASC 75

CORAM:   MASTER RUSSELL

HEARD:   4 MARCH 2025

DELIVERED          :   4 MARCH 2025

PUBLISHED           :   7 MARCH 2025

FILE NO/S:   TRU 8 of 2024

BETWEEN:   THE PUBLIC TRUSTEE as administrator of the estate of JEAN MARY O'SULLIVAN

Plaintiff

AND

CHRISTOPHER O'SULLIVAN

First Defendant

EMILY ROSE O'SULLIVAN

Second Defendant

MICHAEL SHAUN O'SULLIVAN

Third Defendant

Catchwords:

Administration of estates - Application by trustee to bar claim against estate - Trustees Act 1962 (WA) s 64 - Turns on own facts

Legislation:

Trustees Act 1962 (WA), s 64

Result:

Application granted
Orders made pursuant to s 64(3) of the Trustees Act 1962 (WA)

Category:    B

Representation:

Counsel:

Plaintiff	:	Ms A L Spencer
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	McWilliams Davis Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168

MASTER RUSSELL:

(This judgment was delivered orally at the end of the hearing and has been edited from the transcript to correct matters of grammar and to add headings, full citations, references and footnotes.)

Introduction

1. The plaintiff, the Public Trustee, brings this proceeding as administrator de bonis non of the estate of the late Jean Mary O'Sullivan, who died on 8 April 2015. The deceased was survived by her three adult children, Jeannie Marie O'Sullivan, Christopher O'Sullivan and Michael Shaun O'Sullivan.

2. With no disrespect to the deceased's children or any of the other parties, given they share the same surname, I will refer to them using their first names.

3. Christopher is the first defendant in this proceeding and Michael is the third defendant. The second defendant, Emily Rose O'Sullivan, is the deceased's granddaughter.

4. By originating summons filed on 24 May 2024, the plaintiff seeks orders pursuant to s 64(3) of the Trustees Act 1962 (WA) barring the defendants from making any claim against the deceased's estate (Estate) so that it may finalise the administration of the Estate.

5. In support of the application, the plaintiff relies on affidavits of:

   (a)Tayla Maree Wilkinson sworn on 20 November 2023 and filed on 24 May 2024 (Wilkinson Affidavit);

   (b)Chayla Emily Binyon:

   (i)sworn on 6 February 2024 and filed on 24 May 2024 (Binyon February 2024 Affidavit);

   (ii)sworn and filed on 24 May 2024 (Binyon May 2024 Affidavit);

   (iii)sworn and filed on 28 February 2025 relating to communications with the defendants and attaching a draft bill of costs (Binyon February 2025 Affidavit); and

   (iv)sworn and filed on 28 February 2025 relating to service of documents on the defendants (Binyon February 2025 Service Affidavit);

   (c)Shaun William Conlin sworn on 23 May 2024 and filed on 24 May 2024 (Conlin Affidavit).

6. The plaintiff also relies on an outline of submissions filed on 3 December 2024.

7. No appearance has been entered by any of the defendants. I am satisfied that each of them have been served with the proceeding.  Substituted service was effected on each of Christopher and Emily in accordance with orders made on 10 October 2024.[1]  Michael was personally served with the proceeding on 29 May 2024.[2]

   [1] Affidavit of Chayla Emily Binyon sworn and filed 30 October 2024; Affidavit of Rebecca Emma Neame sworn and filed 30 October 2024.

   [2] Affidavit of Thomas Leonard O'Donnell sworn 19 September 2024 and filed 9 October 2024.

8. Michael attended court on 10 October 2024 and appeared with leave of the court as he had not filed an appearance.  He has taken no further part in the proceeding.  Christopher attended court on 12 November 2024 and appeared with leave of the court as he had not filed an appearance.

9. An order was made on 12 November 2024 requiring any of the defendants who intended to participate in the proceeding to enter an appearance and serve a copy on the plaintiff by 19 November 2024.  None of them have done so.

10. The defendants have also been given notice of today's hearing even though none of them have entered an appearance.[3] Christopher and Emily are present in court.

    [3] Binyon February 2025 Service Affidavit.

Relevant factual background

1. The following relevant factual background is largely derived from the affidavits filed in support of the application.

2. The deceased died on 8 April 2015,[4] leaving a will dated 19 November 2011 (Will).[5] She predeceased her adult children, Jeannie, Christopher and Michael.[6]

   [4] Conlin Affidavit [4], SC1.

   [5] Conlin Affidavit [7], SC2.

   [6] Conlin Affidavit [4], SC1.

3. Michael was appointed as executor of the Will and a grant of probate was issued to him on 21 January 2016.  Michael was also named in the Will as the primary beneficiary of the residue of the Estate.

4. A statement of assets and liabilities dated 27 February 2025 provides that, as at that date, the net value of the estate was $336,497.42.[7] The primary asset of the Estate is a property at 5 Ollis Street, Safety Bay, Western Australia.

   [7] Binyon February 2025 Affidavit [22], CB7.

5. In 2020, Jeannie made an application for further provision from the Estate pursuant to s 6(1) of the Family Provision Act 1972 (WA) (FPA Proceedings), which was heard and determined by Master Sanderson in April 2021.  The Master's reasons for decision were published on 28 May 2021: O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan.[8]  It is not necessary that I refer to them in any detail for the purpose of this application.

   [8] O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168 (O'Sullivan v O'Sullivan).

6. Michael was joined to the FPA Proceedings:

   (a)as the first defendant, in his capacity as executor of the Estate; and

   (b)as the second defendant, in his capacity as primary beneficiary under the Will.

7. Relevantly, pursuant to orders made in the FPA Proceedings on 20 April 2021:[9]

   (a)the plaintiff became the administrator of the unadministered portion of the Estate on 7 October 2021;[10] and

   (b)further provision was made for Jeannie, with her to receive the residue of the Estate, instead of Michael.

   [9] Conlin Affidavit [6], SC3.

   [10] Conlin Affidavit [8], SC4.

8. Between 22 June 2021 and 10 May 2023, the plaintiff initiated various proceedings to recover possession of property owned by the Estate from Michael as deposed to in the Conlin Affidavit.[11]

   [11] Conlin Affidavit [10] - [14], SC6 and SC7.

9. On 29 October 2021, the plaintiff caused a notice to creditors and claimants of the Estate to be published in the West Australian newspaper (Published Notice).[12]  Each of the defendants responded to the Published Notice giving notice of a claim in general terms.

   [12] Conlin Affidavit [9], SC5.

10. Christopher gave notice, by letter dated 5 November 2021, stating he had an 'Equitable Interest' in the Estate and an 'Unregistered Charge' in a property in Cockburn as identified in the letter.[13] 

    [13] Conlin Affidavit [15], SC8.

11. On 24 November 2021, Emily notified a claim as a beneficiary of the Estate.[14]

    [14] Conlin Affidavit [25], SC16.

12. By letters dated 23 and 24 November 2021, Michael notified claims as a 'creditor and claimant',[15] as trustee of Heylist Trustees and, in that capacity, on behalf of Mitchell Adams and Benjamin Hooper.[16]  By two further letters dated 28 November 2021, Michael gave notice of claims, which appear to be made on behalf of two cats.[17]

    [15] Conlin Affidavit [28], SC18.

    [16] Conlin Affidavit [29] - [30], SC19, SC20.

    [17] Conlin Affidavit [32], SC21.

13. Details of communications between the plaintiff and its solicitors and the defendants in relation to their alleged claims are set out in and attached to the Conlin Affidavit,[18] the Binyon May 2024 Affidavit[19] and the Binyon February 2025 Affidavit.[20]

    [18] Conlin Affidavit [15] - [34], SC8 - SC21. See also Binyon February 2025 Affidavit [14] - [21], CB5, CB6.

    [19] Binyon May 2024 Affidavit [5] - [15], CB1 - CB8.

    [20] Binyon February 2025 Affidavit [5] - [8], [14] - [21], CB1 - CB3, CB5, CB6.

14. On 9 November 2023, the plaintiff's solicitors gave notice to each of Christopher, Emily and Michael pursuant to s 64(1) of the Trustees Act (s 64 Notice):[21]

    (a)requiring them, within three months of the date of service of the s 64 Notice, to take legal proceedings to enforce any claim they may have against the Estate and to prosecute the proceedings with all due diligence;

    (b)failing which, the plaintiff may commence proceedings pursuant to s 64(2) of the Trustees Act, including to seek an order barring any alleged claims and allowing the plaintiff to distribute the Estate without regard to the claim foreshadowed by them, as provided in s 64(3).

    [21] Wilkinson Affidavit [2] - [4], TWI - TW4; Binyon February 2024 Affidavit [2] - [3], CB1.

15. No proceedings were commenced by any of the defendants in relation to the Estate within three months of service of the s 64 Notice, or at all.[22]

    [22] Conlin Affidavit [35]; Binyon May 2024 Affidavit [17] - [19], CB10; Binyon February 2025 Affidavit [9] ‑ [12], CB4.

16. The plaintiff submits that it is unable to finalise administration of the Estate and distribute the residue to Jeannie in accordance with the orders of 20 April 2021 in circumstances where the defendants have asserted claims. It seeks orders pursuant to s 64 of the Trustees Act that the defendants be barred from making any claim against the Estate so that it may proceed to finalise the administration of the Estate.

Section 64 of the Trustees Act 1962 (WA)

1. Relevantly, s 64 of the Trustees Act provides:

   64.Claims etc., procedure for barring

   (1)Where a trustee wishes to reject a claim that has been made, or that he has reason to believe may be made —

   (a)to or against the estate or property that he is administering; or

   (b)against the trustee personally, by reason of his being under any liability in respect of which he is entitled to reimburse himself out of the estate or property that he is administering,

   the trustee may serve upon the claimant or the person who may become a claimant a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

   (2)At the expiration of the period stipulated in a notice served under subsection (1), the trustee may apply to the Court for an order under subsection (3), and shall serve a copy of the application on the person concerned.

   (3)Where, on the hearing of an application made under subsection (2), the person concerned does not satisfy the Court that he has commenced proceedings and is prosecuting them with all due diligence, the Court may make an order —

   (a)extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and

   (b)imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as the Court thinks fit.

   (4)Where a trustee has served any notices under this section in respect of claims on 2 or more persons, and the period specified in each of those notices has expired, he may, if he thinks fit, apply for an order in respect of the claims of those persons by a single application, and the Court may, on that application, make an order accordingly.

   …

Determination

1. Having considered the evidence before me, I am satisfied that the plaintiff has standing to bring this application as administrator and trustee of the Estate, having given notice to each of the defendants under s 64(1) of the Trustees Act and no proceedings having been issued by any of them in relation to their alleged claims.

2. The defendants have each been served with this proceeding and are on notice of the application. They have not entered an appearance or taken part in the proceeding. There is no evidence before the court as to why an order barring the defendants from making a claim against the Estate should not be made.

3. I am satisfied on the evidence before me that the court's power to make the orders sought under s 64 of the Trustees Act is enlivened in the circumstances. I am also satisfied that it is appropriate that I exercise my discretion to make orders pursuant to s 64(3) barring any claim against the Estate or to property of the Estate so as to enable the plaintiff to distribute the Estate without regard to each of the defendant's claims.

4. The plaintiff has taken the requisite steps to enable the court to make the orders sought. It has served notice on each of the defendants pursuant to s 64(1)(a) of the Trustees Act requiring each of them to commence legal proceedings concerning any claim against the Estate within three months of service of the s 64 Notice.

5. Each of the defendants gave notice of their claims to the plaintiff in November 2021, more than three years ago.  They have each been given the opportunity to justify their claims and to commence proceedings in respect of them, and have failed to do so.  In the circumstances, it is entirely appropriate, in my view, that the Court make an order barring any claim by each of the defendants so that the administration of the Estate may be finalised and the residue distributed to Jeannie to give effect to the orders made on 20 April 2021.[23]  

   [23] Trustees Act 1962 (WA), s 64(3).

6. Subject to hearing from the plaintiff as to the final form of orders, I will make orders pursuant to s 64(3) of the Trustees Act that:

   (a)each of the first, second and third defendants, and the third defendant in any other capacity, be barred from making any claim against the Estate; and

   (b)the plaintiff is at liberty to finalise administration of the Estate and distribute it without regard to any claims asserted by each of the first, second and third defendants, and the third defendant in any other capacity.

Costs

1. The plaintiff also seeks an order that the defendants pay the costs of the proceeding. It submits that costs should follow the event and the defendants should pay the costs, to be apportioned equally between them, because their inaction has caused the plaintiff to incur the expense of the application and proceeding.

2. I am satisfied that the defendants should pay the plaintiff's costs of the proceeding. They were each given the opportunity to verify their claims and were put on notice that if they did not commence proceedings within three months of being served with the s 64 Notice, this proceeding would be commenced. They did not do so, and the plaintiff has been put to the expense of commencing the proceeding.

3. The plaintiff was, in my view, entitled to seek barring orders in relation to the claims made by each of the defendants, so as to have confidence it could proceed to finalise the administration and distribute the Estate without fear of any of the foreshadowed claims emerging. 

4. Although Emily has not entered an appearance, following commencement of the proceeding, she informed the plaintiff by emails dated 2 and 30 August 2024 that she did not wish to pursue her claim in relation to the Estate and, by email and letter dated 16 October 2024, after the proceeding had been served on her, that she withdrew her claim.[24] 

   [24] Binyon February 2025 Affidavit [5] - [7], CB1, CB2.

5. However, this was after the proceeding was issued and the associated costs incurred. Emily has not filed an appearance or a notice of intention to abide the court's decision. As such, the plaintiff was justified, in my view, in continuing to seek orders barring Emily's claim.

6. It is not immediately apparent on the information before me, in relation to costs and the time spent in relation to the application, that any apportionment between the defendants should be other than equal.

7. The plaintiff asks the court to fix the costs in accordance with a draft bill of costs filed on 28 February 2025.[25]  The plaintiff indicated in its outline of submissions that its draft bill of costs and proposed orders in relation to costs would be served on the defendants in advance of the special appointment on 4 March 2024.

   [25] Binyon February 2025 Affidavit [23], CB8.

8. Service of those documents has been effected on the first and second defendants by ordinary prepaid post and email and on the third defendant by courier. However, in each case, such service was only effected on Friday, 28 February 2025, less than one business day before the hearing, given the public holiday on 3 March 2025.[26]

   [26] Binyon February 2025 Service Affidavit [10] - [16], CB4, CB5, CB6 and CB7.

9. This is insufficient time before the hearing to allow the defendants an opportunity to consider the reasonableness or otherwise of the costs sought, to seek any advice or to appear to be heard in relation to them.

10. The plaintiff also asks the court to fix the costs of the application for substituted service in relation to orders made on 10 October 2024, which costs were ordered to be paid by the first and second defendants.

11. I will not fix the costs of the originating summons or the costs relating to substituted service today.

12. The draft bill of costs was not only served on the defendants at a very late stage, it was not filed, or provided to, the court in sufficient time before the hearing to allow time to consider it, and so as to be in a position to fix the costs today. 

13. Further, from my brief review of the draft bill, the time spent and amount of costs sought in relation to both the originating summons and the ex‑parte motion for substituted service on the first and second defendants appears significant.  There is no breakdown of the work undertaken, other than by practitioner, or of the time spent on particular tasks from which I am able to make an assessment as to the reasonableness or otherwise of the amounts claimed.

14. I will make orders today that the plaintiff's costs of the proceedings be paid by the defendants, to be taxed if not agreed, and apportioned equally between the defendants.

15. I will also make an order that the defendants be served with a copy of the orders made (by ordinary post or email) and that they have liberty to apply in relation to the order for costs, with any such application to be made on notice to the plaintiff and within 14 days of service of a copy of the orders on them.

Conclusion and orders

1. For these reasons, the plaintiff's application is allowed and, subject to hearing from the plaintiff as to the form of the final orders, I will make orders in the following terms:

   1.Pursuant to s 64(3) of the Trustees Act 1962 (WA):

   (a)each of the first, second and third defendants, and the third defendant in any other capacity, are barred from making any claim against the estate of the late Jean Mary O'Sullivan (Estate); and

   (b)the plaintiff is at liberty to finalise the administration of the Estate and distribute it without regard to any claims asserted by each of the first, second and third defendants, and the third defendant in any other capacity.

   2.The plaintiff's costs of the proceedings are to be paid by the defendants on a party and party basis, to be taxed if not agreed, and apportioned equally between the defendants.

   3.A copy of these orders is to be served on each of the defendants by ordinary pre-paid post or by email.

   4.The defendants have liberty to apply in relation to Order 2 (the order made in relation to the costs of the proceedings) with any application to be made on notice to the plaintiff and within 14 days of service of these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BF

Associate to Master Russell

7 MARCH 2025