The Uniting Church in Australia Property Trust (Q.) v Sewell

[2023] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

The Uniting Church in Australia Property Trust (Q.) v Sewell [2023] QSC 198

PARTIES:

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.)
(applicant)
v
DONNA MAREE SEWELL

(respondent)

FILE NO/S:

BS 5877 of 2023

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2023

JUDGE:

Bradley J

ORDER:

THE ORDER OF THE COURT IS THAT:

1. Pursuant to section 6 of the Succession Act 1981 (Qld) (“Act”), section 80 of the Trusts Act 1973 (Qld) (“Trusts Act”) or the Court’s inherent jurisdiction, the Respondent be removed as executor and trustee of the estate of Heinz Gunter Haase (“Estate”).

2. Pursuant to section 6 of the Act the Grant of Probate granted to the Respondent dated 13 November 2018 be revoked.

3. Pursuant to section 6 of the Act and subject to the formal requirements of the Registrar, Letters of Administration with the Will of Heinz Gunter Haase, deceased, dated 14 December 2009 be granted to Lindsey Wilkinson, duly nominated to accept appointment as administrator on behalf of The Uniting Church in Australia Property Trust (Q.) (“the Administrator”).

4. The requirement to give notice under rule 598 of the UCPR is dispensed with.

5. Pursuant to s.6 of the Act and s.80 of the Trusts Act 1973, all property of the deceased vests in the Administrator.

6. Pursuant to s. 114 of the Land Title Act 1994 (Qld), the Administrator of the estate of the deceased, be registered as proprietor of any real property of the deceased in Queensland.

7.   The original Will, all certificates of title, estate documentation and information relevant to the administration of the estate including any Enduring Power of Attorney and documents relating to the Respondent acting as Attorney of the deceased, which are in the possession or control of the Respondent, be delivered to Mills Oakley Brisbane (Level 23, 66 Eagle Street) on behalf of the Administrator within 7 days of the making of these orders.

8. Pursuant to section 6(1) of the Act all funds held on behalf of the deceased’s estate, whether by the Respondent or any third party, be transferred into a trust account nominated by the Administrator in writing, within three business days of such written nomination.

9.   The Respondent is to repay the sum of $31,506.62 to the Administrator, into a trust account nominated by the Administrator in writing, within three business days of such written nomination.

10.  The Administrator has liberty to apply upon 3 days notice.

11.  The Respondent is to pay the applicant’s costs of this Application on the indemnity basis.

12.  The Respondent is to bear her costs of this application personally and be denied an indemnity from the estate of the deceased.

CATCHWORDS:

SUCCESSION – ADMINISTRATION OF ESTATE – OTHER MATTERS – where the respondent was the deceased’s solicitor – where the deceased appointed the respondent his attorney and subsequently executor of his estate – where the applicant is the sole beneficiary of the estate –where the estate is relatively small – where the respondent paid $31,506.62 for acting as the deceased’s attorney out of the estate – where the respondent refuses to disclose these and other costs in administering the estate to the applicant – whether the respondent should be removed as executor – whether the respondent should pay back the costs paid out of the estate

COUNSEL:

I Klevansky for the applicant

The respondent appeared on her own behalf

SOLICITORS:

Mills Oakley for the applicant

The respondent appeared on her own behalf

1. The applicant, the Uniting Church in Australia Property Trust (Q.), filed an application on 12 May 2023.  It was listed for hearing on the Court’s applications list on 30 May 2023.  The applicant is a registered charity.  It was the sole beneficiary of the estate of the late Heinz Gunter Haase, who died on 28 July 2018.  The respondent is a solicitor of the firm See Well Law.  She was the sole executor of the estate.  

2. The application was heard on 30 May 2023.  The applicant appeared by counsel.  The respondent appeared on her own behalf.  She did so by telephone, pursuant to leave.  Each party relied on written submissions, which were read and filed by leave, and made some oral submissions.  Neither party applied for an adjournment at the hearing.

3. After the oral submissions were made, reasons were given ex tempore and an order was made in terms of a draft prepared by the solicitors for the applicant.  The order was sealed on 2 June 2023.  No appeal has been commenced.

4. Between 3.08pm on 29 May and 9.42am on 30 May 2023, the respondent sent six emails to my associate.  In these the respondent raised contentions about the substance and merits of the application and made comments about the conduct of the applicant.  Quite properly, the text of the six emails was not brought to my attention before the 30 May 2023 hearing was concluded.  I was informed of the respondent’s request for leave to appear by telephone, made in the first email.

5. At 9.21am on 31 May 2023, the morning after the decision, the respondent sent an email to my associate containing threats that, “if the professional fees are to be returned”, she would issue a letter of demand to recover her fees, and that she would notify the Australian Taxation Office, the Queensland Law Society, and the Financial Complaints Authority.  On enquiry by my associate, the respondent apologised for sending the email to the Court, writing “I had hit reply all, not realising that the court was still on the correspondence.”  There was no apology for her disrespect for the Court’s order.

6. Later, the respondent sent five other emails to my associate. 

   (a)On 10 June 2023, the respondent asked if the associate could “provide the reasons for the decision.”

   (b)On 12 June 2023, after being informed that a request for ex tempore reasons should be made through the Court’s transcript service, the respondent asked, “Will the decision be published with reasons”?

   (c)On 16 June 2023, this was followed by, “The decision absolutely needs to be published”.

   (d)Then on 21 June 2023 the respondent wrote, “I am wondering when the decision is going to be published please”.

   (e)Most recently, on 28 August 2023, the respondent wrote:

   “Please when with [sic] this decision be published.  He has had several months to review the transcript and materials and publish the reasons and the decision and it is only right and just that this occurs.”

7. In these communications the respondent also gave instructions as to what should be included in the decision “when you publish it”.  The respondent described the decision as “a landmark decision”.  She wrote that she was “certainly not appealing” and that:  

   “It is the best decision ever.  I have already published it to every single person and organisation that I know.”

8. The respondent’s communications with my associate were improper and unprofessional.  They reflect an ignorance of legal principle, a disregard for Court practice, and discourtesy.  They state as facts, matters that are not true.  Overall, they make the respondent appear a foolish person completely out of her depth in dealing with the Court.

9. It is not usual for the Court to publish reasons given for orders made after a hearing in the applications list.  This decision involved no novel legal principle or matter of public interest.  However, given the conduct of the respondent in connection with this decision, I have decided to publish these reasons.  Paragraphs [10] to [16] below are a revision of the transcript of my ex tempore reasons.

10. This is an application by the sole beneficiary of an estate for the removal of the executor appointed pursuant to the testator’s will.  The executor is in a particular position.  She was the attorney of the deceased for some period of time before he passed from this life.  One of the most significant debts of the estate, according to the executor, is an amount of $31,506.26, which is said to be owed to her solicitor’s firm for fees.

11. For some years the sole beneficiary has sought information about that significant debt.  The executor has steadfastly refused to provide that information.  Even today at the hearing, the executor has said that she will not provide that information because the detailed invoices for that work are, she says, “Confidential and the subject of legal professional privilege.”

12. In opposing the release of that information, the executor has engaged in lengthy correspondence with the sole beneficiary.  I think it is sufficient for today’s purposes to say that most of that correspondence has been conducted in completely inappropriate terms for an executor and certainly in inappropriate terms for a solicitor who is an officer of this Court.  The executor’s conduct has manifested open contempt for the sole beneficiary and insistent resistance to providing information about the basis of her personal claim, or the claim of her firm, to be paid an amount of $31,000, approximately.

13. The executor’s conduct has fallen short of the conduct required of an executor. 

14. This is, as everyone understands, a small estate.  The estimated value of the estate is somewhere approaching $100,000.  In the context of that, both the very significant claim by the executor’s law firm for work said to have been done before the testator passed and the insistence that that information would not be provided by the executor are of grave concern.  The beneficiary seeks the removal of the executor and seeks the appointment of one of its own officers to conclude the administration of the estate.

15. Some other orders are also sought that would facilitate the administration of the estate.  There are orders that would provide rights and documents to a newly appointed grantee of probate and allow that person to expeditiously determine the true position of the estate and make such decisions as need to be made in respect of matters, including the $31,000 paid from the estate to the existing executor’s law firm. 

16. In the circumstances, I am satisfied that the orders proposed should be made.  So, I will initial the draft order and place it with the papers. 

17. Before pronouncing my decision in paragraph [16] above, I asked the respondent:

    “Ms Sewell, is there any reason an order should not be made for you to repay the $31,506.62 that were taken from the estate?”

18. The respondent replied, “No.”

19. She then repeated some submissions she had made earlier in the hearing.  I asked the respondent whether there was a new point she would like to make.  She replied:

    “[W]ell, honestly, if this is how an executor’s going to get treated for acting for someone, then there should be, like, a public disclosure that if you act for an executor and you have the beneficiary of the, you know, Blue Care United in Noosa, then you are going to be accused of everything under the sun.  Like, I am not certain, your Honour, why the money cannot just be paid to them and that this is not just the conclusion of it and why these continual accusations are being made against myself and my law firm and all the people that work for See Well Lawyers, that we have somehow acted in deception of our professional obligations to the Court.”

20. Following the respondent’s reply, I pronounced the order in the terms set out in paragraph [16] above.