Waters v Odell (No 2)

[2023] QDC 144

DISTRICT COURT OF QUEENSLAND

CITATION: 

Waters v Odell (No 2) [2023] QDC 144

PARTIES: 

PHILPPA ANNE WATERS

(Applicant)

v

CHRISTINE ODELL (as executor of the estate of Anne Benn deceased)

(Respondent)

FILE NO:

 BD No 1017 of 2021

DIVISION:

 Civil

PROCEEDING:

 Originating Application

ORIGINATING COURT: 

 District Court of Queensland

DELIVERED ON:

27 July 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

27 July 2023  

JUDGE:

Porter KC DCJ

ORDER:

1.       The respondent be removed as executor of the estate of Anne Benn;

2.       Christine Odell bring in the original grant of probate to the Supreme Court Registry by 10 August 2023;

3.       Subject to the formal requirements of the Registrar, Constantine George Castrisos be appointed as administrator of the estate of Anne Benn;

4.       The applicant’s costs of the proceedings ordered on 6 July 2023 and the costs of the appearance on 6 July 2023 be assessed unless otherwise agreed;

5.       The respondent’s indemnity out of the estate of Anne Benn in respect of the respondent’s costs of the proceeding be limited to $50,000.00;

6.       Christine Odell personally pay the costs of this application on an indemnity basis fixed in the sum of $10,000;

7.       Constantine George Castrisos as administrator of the estate of Anne Benn be substituted as respondent to the Originating Application.  

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – GENERALLY – where the applicant was successful in a family provision application – where the respondent engaged in conduct contrary to her duties as executor prior to, and in the course of, the application – where costs of proceedings were caused substantially by the executor’s misconduct before and during the trial – where the executor’s right to indemnity for costs of the proceedings was challenged– correct approach to determining the extent to which indemnity should be allowed considered – whether the District Court has power under s 69(1) of the District Court of Queensland Act 1967 (Qld) to order removal of an executor – whether the respondent should be removed as executor

COUNSEL:

P Hackett for the Applicant

SOLICITORS:

Hosie & Partners for the Applicant

Standard Law Co for the Respondent

Introduction

1. On 7 to 9 February 2023, I heard the trial of an application for further provision by the applicant, Philippa Waters.  The respondent is her sister.  I published reasons on 14 June 2023.[1]  Those reasons speak for themselves, and these reasons need to be read with those reasons as well as the orders made in that proceeding. 

   [1] Waters v Odell [2023] QDC 44.

2. The judgment was an inordinately long one for a three-day family provision application.  It was long in substantial part because of the necessity to work through and fully analyse the evidence which appeared to disclose misconduct of Ms Odell as attorney, as executor, and as confidante of her mother.  It is unnecessary to refer again to the many findings I made impugning Ms Odell’s conduct.  As I said…