Yule v Irwin (No 2) - [2016] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
YULE v IRWIN & ORS (No 2)
[2016] SASC 178
Judgment of The Honourable Justice Nicholson
18 November 2016
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY - PETITION OR SUMMONS FOR ADVICE - PARTICULAR CASES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHER CASES AND MATTERS
SUCCESSION - ADMINISTRATION OF ESTATE - OTHER MATTERS
The late James Campbell Irwin died on 4 November 2005 leaving an estate with a net value according to the executors’ affidavit at time of death estimated to be $14,943,096.39. The primary beneficiaries are the deceased’s sons James, Angus and Campbell. These three together with a solicitor, with no interest in the estate, Ms Yule, are the four executors and trustees. As at the present day the estate remains only partially administered largely because of disagreements emerging between Campbell and the other three executors (referred to in the judgment as “the proponent executors”).
In 2008 an agreement was entered into by all four executors to facilitate the final administration of the estate (“the 2008 Agreement”). Substantial aspects of that arrangement were implemented in 2008 largely to the then benefit of Angus and Campbell. However, other aspects, including the transfer of a valuable farming property to James, have not yet been implemented due to Campbell’s lack of cooperation. A number of applications came before the Court.
James with the support of Angus and Ms Yule has sought advice and direction together with a large number of complex interlocking orders pursuant to section 69 of the Administration and Probate Act 1919 aimed at effecting further implementation of the 2008 Agreement. Campbell has brought three applications also purportedly seeking advice and direction aimed in large part at delaying or preventing the 2008 Agreement from being further implemented together with a second application seeking my recusal.
Ms Yule has sought orders permitting her, in her capacity as an executor, to pay from estate funds longstanding accounts for work done on behalf of the estate by two firms of solicitors.
Held:
1. Campbell’s second application that I recuse myself from further involvement in this matter, FDN 65, is dismissed.
2. Apart from some minor aspects relating to costs, Campbell’s three interlocutory applications, FDN 45, FDN 52 and FDN 55 are an abuse of process and are dismissed.
3. The minor aspects of Campbell’s interlocutory applications relating to costs, as identified in paragraphs [112], [115] and [117] are stood over for further consideration.
4. Ms Yule’s application is allowed. The executors or any one of them would be justified in meeting and it would be within their power to meet out of estate assets the Treloar & Treloar account in the amount of $40,647.00 and the Lynch Meyer account in the amount of $95,521.99.
5. As far as James’ application is concerned, I am satisfied that those parts of the 2008 Agreement not yet implemented should be implemented. However, before making final orders in the terms set out in the proposed Minutes of Order provided by James and as presently relied on, I would need to hear further submissions on the matters identified at paragraphs [198] to [204].
6. Angus and Ms Yule are to provide draft minutes of orders dealing with the matters referred to in paragraphs [120] and [217] respectively and consistent with these reasons.
7. In due course, James is to provide amended draft minutes of order with reference to his application, FDN 40, which conform to these reasons and any further submissions made with respect to the matters identified at paragraphs [198] to [204].
Corporations Act 2001 (Cth) s 461; Administration and Probate Act 1919 (SA) s 69; Trustee Act 1936 (SA) s 36, s 37, s 40, s 91; Trustee Act 1925 (NSW) s 63; Real Property Act 1886 (SA) s 179; Supreme Court Civil Rules 2006 r 4, r 78, r 79, r 193, r 206, r 242, referred to.
Irwin v Yule [2013] SASC 132; McKenzie v McKenzie [1970] 3 All ER 1034; Yule v Irwin & Ors [2016] SASC 30; Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42, (2008) 237 CLR 66; Smith v Smith (1861) 1 Dr & Sm 384, 62 ER 426; Re Atkinson [1971] VR 612; Manning v Russell [2015] SASC 91, (2015) 123 SASR 135; Dalle-Molle v Manos [2004] SASC 102, (2004) 88 SASR 193; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175; Players Pty Ltd (in liquidation) (receivers appointed) v Clone Pty Ltd [2013] SASCFC 25, (2013) 115 SASR 547; Duke v Royalstar Pty Ltd [2001] WASCA 273; Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543; Stollznow v Cavlert [1980] 2 NSWLR 749; Underwood v Hatton (1842) 5 Beav 36, 49 ER 490; Re Australian Motors SA Pty Ltd Staff Superannuation Fund [2010] SASC 62; Johnson v Trotter; Estate of Trotter [2006] NSWSC 67; Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44, (1910) 11 CLR 492; Simpson v Gutteridge (1816) 1 Madd 609, 56 ER 224; In the Estate of Just (No 2) (1974) 7 SASR 515; Wigley v Crozier [1909] HCA 86, (1909) 9 CLR 425; Estate of Mack (1956) 73 WN (NSW) 218; Barclay v Owen (1889) 60 LT 220; Estate of Gamble (1915) 32 WN (NSW) 121; Fraser v Murdoch (1881) 6 AC 855; In Re Marquess of Abergavenny’s Estate Act Trusts; Marquess of Abergavenny v Ram [1981] 1 WLR 843; Re Charteris [1917] 2 Ch 379; JD & KJ Zohs Properties Pty Ltd v Ferme [2014] SASC 146; Irwin v Irwin [2016] FCCA 1767, considered.

YULE v IRWIN & ORS (No 2)
[2016] SASC 178
Civil
NICHOLSON J.
Introduction and general background

These reasons concern a number of applications made by individual executors and relevant to the unfinalised administration of the estate of the late James Campbell Irwin (the deceased) who died on 4 November 2005.
Probate of the deceased’s will was granted on 2 May 2007 to Melissa Yule, a solicitor, and to each of the deceased’s three adult children, James Irwin, Angus Irwin and Campbell Irwin, being the four executors named in the will. It is convenient in these reasons to refer to the three sons by their given names, without thereby intending any undue familiarity.
The will provided for, inter alia, a number of specific bequests to each of the deceased’s grandchildren, his wife, Ann Irwin, Angus and James, and for the residuary estate to be shared between the three sons. However, the respective shares in the residuary estate were to take account of the value of the specific bequests to Angus and James so that, in effect, the three sons were to receive, whether in money or in kind, equal shares from the estate.
In addition to personal effects and interests in a fertiliser business, some rural land, a residential unit at Glenelg and cash, the principal asset of the estate and the majority of its value rested in the deceased’s legal and equitable shareholding in an investment company, Bonshaw Pty Ltd (Bonshaw). Bonshaw had valuable shareholdings in a number of publicly listed companies and owned some farming land. According to the executors’ affidavit the net value of the estate at the time of death was estimated to be $14,943,096.39. The 25,202 ordinary shares and the 15,000 preference shares in Bonshaw held by the deceased[1] had an estimated market value at the time of death of $8,511,976 and $5,066,250 respectively. The shares in public companies held by Bonshaw were then valued at more than $10M.
[1] The deceased held all of the Bonshaw share capital in his name apart from one ordinary share held in the name of Ann Irwin but on a bare trust for the deceased.
Almost from the beginning, a number of disputes arose between the three siblings in relation to the administration and winding up of the estate. A succinct summary of the events between 4 November 2005 and 2 July 2013 was provided by White J in his reasons for ordering, on 2 July 2013, the winding up of Bonshaw on the just and equitable ground.[2]
[2] Section 461(1)(k) of the Corporations Act 2001 (Cth). See Irwin v Yule [2013] SASC 132 at [11]-[47].
I assumed responsibility for the matter in December 2014. Prior thereto, this Court had been involved in issues relating to the administration of the estate on three separate occasions.
On 5 November 2009, in Supreme Court Action 1677 of 2009, Campbell, who was at that time represented by Cosoff Cudmore Knox commenced proceedings by way of summons and statement of claim against Piper Alderman, a firm of solicitors, as first defendant, Ms Yule as second defendant, James as third defendant and Angus as fourth defendant. In those proceedings Campbell sought substantial damages and alleged various matters of maladministration of the estate and its distribution. I will need to refer to these proceedings again later in these reasons. However, on 9 November 2012, a Master of this Court dismissed the proceedings as against all defendants for want of prosecution and ordered that Campbell pay the costs of all defendants as agreed or adjudicated. There has been no appeal by Campbell against the order dismissing those proceedings.
On 22 September 2010, in Supreme Court Action 1300 of 2010, Ms Yule, by way of a summons and affidavit in support, sought advice or direction from the Court pursuant to section 69 of the Administration and Probate Act 1919 (SA). In those same proceedings James filed an interlocutory application and supporting affidavit seeking advice or direction with respect to additional matters. The advice or direction sought by Ms Yule and James concerned, inter alia, how the executors might appropriately deal with various assets of the estate, including land held by Bonshaw, the winding up of Bonshaw, the appointment of a solicitor experienced in taxation matters and the appointment of an accountant to advise with respect to and to manage the rather complex tax affairs of Bonshaw and the estate generally and various other matters concerning the administration of the estate. On 22 December 2010, Gray J made the following orders which were in accordance with Minutes of Order prepared by Campbell’s then legal representatives, Cosoff Cudmore Knox.
1Within 14 days the legal representatives of the plaintiff [Ms Yule], first, second and third defendants [James, Angus and Campbell, respectively] (in their capacities as trustees of the estate of James Campbell Irwin deceased) (‘the deceased’) together instruct Mr Kenneth Schurgott of SBN Lawyers to advise:
1.1    the plaintiff, the first, second and third defendants in their respective capacities as trustees of the estate of the deceased; and
1.2    Bonshaw Pty Limited
with respect to the issues (‘the issues’) referred to in paragraph 2 hereof.
2The issues referred to in paragraph 1 hereof are:
2.1    the possible or likely taxation obligations to be met by the estate of the deceased in respect of its income for the year ended 30 June 2010;
2.2    the best, proper and most tax effective means of attending to matters necessary to permit the preparation of a draft tax return for the estate of the deceased for the year ended 30 June 2010;
2.3    the possible or likely taxation obligations to be met by Bonshaw Pty Limited in respect of its income for the year ended 30 June 2010;
2.4    the best, proper and most tax effective means of attending to matters necessary to permit the preparation of a draft tax return for Bonshaw Pty Limited, for the year ended 30 June 2010.
2.5    The best, proper and most tax effective means of winding up the estate of the deceased.
3Within 14 days of the provision of the advice from Mr Kenneth Schurgott in accordance with paragraph 1 hereof, the legal representatives of the plaintiff, first, second and third defendants confer to consider the effect and implications of the advice and how best to attend to the obligation of each and both of the estate of the deceased and Bonshaw Pty Limited in relation to the preparation of the tax returns in respect of each of them and thereafter to instruct Mr Kenneth Schurgott to provide instructions, in accordance with paragraph 4, to the chartered accountants and tax agents appointed pursuant to paragraph 4 of this order.
4That as soon as practicable Edwards Marshall Chartered Accountants, be appointed to the parties:
4.1    as the taxation agents for the estate of the deceased in lieu of Ernst & Young; and
4.2    as the taxation agents for Bonshaw Pty Limited in lieu of Ernst & Young and to recover, as soon as practicable, from Ernst & Young all files and documents relating to the taxation affairs of the estate of the deceased and of Bonshaw Pty Limited and as may be necessary to inform themselves to be able to prepare tax returns for the estate of the deceased and Bonshaw Pty Limited in accordance with the instructions provided by Mr Kenneth Schurgott in accordance with paragraph and 3 (sic) of this order.
5Within 28 days the third defendant pay the sum of $3,936.45 to Lynch Meyer solicitors for the purpose of paying the balance of the tax assessment issued by the Australian Taxation Office for the year ended 30 June 2008 with respect to the estate of the deceased.
6The first, second and third defendants, in their capacity as executors of the estate of the deceased pay, in equal shares:
6.1    the costs of Mr Kenneth Schurgott in terms agreed with him provided that those costs not exceed the amount of $40,000; and
6.2    the costs of Edwards Marshall Chartered Accountants on terms to be agreed provided that those costs not exceed the amount of $20,000.
7The question of costs of the parties be reserved.
8The parties agree, and the Court has noted, that their respective consents to these orders and directions is without prejudice to their respective rights and obligations including, without limitation, the matters pleaded in Supreme Court of South Australia Action No. 1677 of 2009.
9This application be adjourned to 9.30am on the 10th day of February 2011 before the Honourable Justice Gray.
10That the parties, and any interested person, may be at liberty to apply for further orders and directions and for that purpose have liberty to apply to have this application listed on short notice.
The matter came back before Gray J on a number of occasions thereafter. On 2 July 2012, Angus filed an interlocutory application seeking an order that the executors do all things necessary to cause the winding up of Bonshaw. On 4 September 2012 and after hearing from the parties (including Campbell) Gray J ordered that his Honour’s orders of 22 December 2010 were to be amended to include an order that any party to the proceedings was to be at liberty to issue proceedings to wind up Bonshaw on the just and equitable ground. His Honour ordered that the costs of the parties in respect of Angus’ application to wind up Bonshaw were to be paid out of the estate.
This would appear to have brought to an end the involvement of Gray J in matters related to the estate. As earlier noted, it was some two months later, on 9 November 2012, that the Master struck out Campbell’s action for alleged maladministration in Action 1677 of 2009.
On 1 February 2013, in Supreme Court Action 149 of 2013, James and Ann Irwin filed a summons with supporting affidavit for the winding up of Bonshaw. As earlier noted, on 2 July 2013, White J made an order for the winding up of Bonshaw. His Honour appointed Mr Mark Hall as liquidator. A notice of appeal against the winding up order was filed by Campbell on 6 August 2013 and an amended notice of appeal was filed on 30 August 2013. In addition, on 16 August 2013, Campbell filed an interlocutory application seeking a stay of the order to wind up Bonshaw pending the outcome of his appeal. On 6 September 2013, Peek J dismissed Campbell’s application for a stay. On 27 September 2013, following an application filed by James and Ann Irwin, Peek J ordered Campbell to pay into Court security for the costs of the appeal in the sum of $17,500 by 1 November 2013. The order for security was not satisfied and, on 22 November 2013, Stanley J made an order dismissing Campbell’s appeal. The winding up of Bonshaw proceeded but has not yet been finalised.
Apart from ancillary proceedings before a Master of this Court in Action 1677 of 2009, by Piper Alderman, Ms Yule and Angus seeking to enforce costs entitlements against Campbell, there had been no extant proceedings involving the estate since 22 November 2013 until the revivification of the proceedings in Action 1300 of 2010 before me on 17 November 2014.
The interlocutory applications filed by Ms Yule and James in Action 1300 of 2010
On 17 November 2014, Ms Yule filed an interlocutory application for certain legal fees to be paid out of the estate assets (FDN 27).[3] Ms Yule’s application concerns costs liabilities she incurred to two firms of solicitors for work done some years ago, which Ms Yule maintains was performed on behalf of the estate. As was the case when Action 1300 of 2010 was first instituted and came before Gray J, Ms Yule has been styled as the plaintiff with James, Angus and Campbell as first, second and third defendants, respectively. Ms Yule, James and Angus are now in agreement as to how Ms Yule’s application should be resolved. Campbell is not in agreement.
[3] FDN is the Court’s acronym for “File Document Number”. These reasons refer to a large number of interlocutory applications and affidavits filed by all parties and it will be convenient to identify them by FDN.
On 26 February 2015, James filed an interlocutory application in 1300 of 2010 seeking advice or direction from the Court pursuant to section 69 of the Administration and Probate Act. The application was amended by application filed 3 September 2015, FDN 40.[4] James’ application raises for consideration the manner by which the executors might properly deal with assets of the estate which have not yet been called in and sold or distributed in specie to the beneficiaries. The manner by which James wishes the executors to proceed in these respects and as to which he has sought the Court’s advice or direction, is agreed to by Ms Yule and Angus. However, Campbell is vigorously opposed to the proposal. Hereinafter, I will refer, on occasion, to Ms Yule, James and Angus as the “proponent executors” and to James’ application in FDN 40 as the “proponent executors’ proposal”.
[4] In fact, two amended versions of James’ initial application were filed. The final version of the application, FDN 40, was filed soon after the hearing of the oral argument which occurred on 27 August 2015 (see further below) in order to incorporate matters that arose during that argument. That application set out an amended version of the orders and directions ultimately sought by James.
Unless and until the assets in question are either distributed in accordance with the proponent executors’ proposal or called in and converted to cash or otherwise dealt with consistently with the entitlements and powers provided for in the will of the deceased, the estate will continue, some 11 years after the death of the deceased, to be the unadministered and tangled web that it has become. James’ application, FDN 40, has given rise to a number of complex issues still to be dealt with.

Oral submissions by all parties except Campbell with respect to Ms Yule’s application, FDN 27, and James’ application, FDN 40, were made on 27 August 2015.[5] In addition, the Court has before it a substantial amount of written material from all parties, including Campbell, by way of affidavit evidence and written submissions. Campbell resides overseas and did not attend this hearing. It is necessary to provide a brief account of the manner by which Campbell has presented his case throughout these proceedings to date.
[5] The consideration and resolution of these two applications has been delayed, in part only, by the need to deal with intervening interlocutory applications filed by Campbell, referred to later in these reasons.
Campbell’s involvement in the proceedings
The matter first came before me on 5 December 2014 as part of a Chamber List. At that time only Ms Yule’s application, FDN 27, had been filed. Ms Yule represented herself (as she has continued to do throughout the proceedings) but all of the defendants, including Campbell, were represented by legal counsel. However, given the short notice of the application, none of the defendants had been able to obtain complete instructions. Counsel representing James put the Court on notice that he expected he would receive instructions to bring an application in the not too distant future “effectively seeking orders to finalise the winding up of the estate”. I adjourned the matter to the Chamber List on 30 January 2015 for further consideration. That appointment was administratively adjourned following a request from Campbell and the matter next came before me on 27 February 2015.
Again, Ms Yule appeared in person but all other parties, including Campbell, were represented by legal counsel.[6] By this time, James’ application had been filed but with only a very confined affidavit in support. I made orders, by consent, to the effect that each defendant was at liberty to file any affidavit evidence in response to Ms Yule’s application upon which he wished to rely and that James, with respect to his filed interlocutory application, was to file any amended interlocutory application and any further affidavit in support within 28 days. I adjourned the matter for further consideration to 7 April 2015.
[6] Campbell had filed a Notice of Change of Solicitor on 25 February 2015. He was now being represented by Camatta Lempens in lieu of Cusoff Cudmore Knox.
At the directions hearing on 7 April 2015, Ms Yule appeared in person and James and Angus appeared through their respective counsel. However, Campbell and his legal representatives had parted ways and there was no appearance by or on behalf of Campbell other than by his wife, Fiona Irwin, who sought and obtained the permission of the Court to speak at the hearing on his behalf.
The foreshadowed amended application and additional affidavit evidence had not yet been filed by James. However, Campbell had provided an affidavit, FDN 33, to which objection was taken as to form but which I nevertheless directed was to be received. At the end of the directions hearing I made orders giving James further time to file an amended application and affidavit in support and adjourned the matter to 12 May 2015. It was my expectation that, on that day, I would make directions for the filing of any responding material and set a date for the argument with respect to either or both applications. During the hearing on 7 April 2015, the following exchange occurred with Fiona Irwin.
HIS HONOUR:           All right. Could I ask you to come forward, please, Mrs Irwin? Just take a seat at the bar table, thank you. Mrs Irwin, as I understand the position, your husband, Mr Cam Irwin, is living where in –
MRS IRWIN:     He is living in Dubai.
HIS HONOUR:    In Dubai?
MRS IRWIN:     Yes.
HIS HONOUR:    He is essentially permanently in Dubai?
MRS IRWIN:     Yes, he is a resident there.
HIS HONOUR:    A resident there?
MRS IRWIN:     Yes.
HIS HONOUR:    So he doesn’t propose to return in the near term to here?
MRS IRWIN:     Well, there’s a bit of a complication because there’s a – Angus Irwin is suing him for bankruptcy, so he is a bit loath to be able to return to court because of jurisdiction issues.
HIS HONOUR:    Sorry, can I ask you to speak up? What was that?
MRS IRWIN:     Angus Irwin is suing him for bankruptcy.
HIS HONOUR:    I see.
MRS IRWIN:     So he doesn’t wish to return, obviously, for jurisdiction issues because he didn’t wish to be served.
HIS HONOUR:    I see, all right, so for whatever reason, he is remaining out of the jurisdiction.
MRS IRWIN:     Yes. Otherwise, he would be here.
HIS HONOUR:    Yes. Please sit down. Perhaps just try to keep close to the microphone.
MRS IRWIN:     Sorry.
HIS HONOUR:    Well, Mrs Irwin, an objection has been taken to the form of the affidavit. It has not been sworn in an appropriate form, as I understand it. It is not sworn or signed at the bottom of each page.
MRS IRWIN:     Sorry, I know that Cam went to the Australian Embassy, and they do it – as the learned colleague said, he does them all the time, and I know that he went there and was guided by the Australian Embassy, which is the overseas agent for affidavits in Australia.
HIS HONOUR:    I think I have got enough battles ahead of me, Mr Edmonds-Wilson. I am not overly troubled by the form of the affidavit. Unless you have got a particular issue of substance to press on it, I will grant the dispensation, I think, and allow the affidavit to be filed.
MR EDMONDS- As your Honour pleases.
WILSON:
HIS HONOUR:    So we will receive the affidavit, but Mrs Irwin, your husband will need to understand that that is just received for filing.
MRS IRWIN:     Yes.
HIS HONOUR:    As with all affidavits filed by any party, ultimately, it will be open to other parties to take objection to form –
MRS IRWIN:     Yes.
HIS HONOUR:    - or, in particular, to substance on evidentiary grounds, and that has been foreshadowed. There may be some objections. We will need to deal with that at a time when it comes for me to rely upon the material.
MRS IRWIN:     Yes. Thank you.
HIS HONOUR:    At the moment, Mr Irwin is unrepresented?
MRS IRWIN:     That’s correct, yes.
HIS HONOUR:    He has asked if you could represent him. It’s a little informal at the moment, but subject to hearing from the parties, I will allow you to at least appear and speak on his behalf to some degree.
MRS IRWIN:     I have the originals signed for the acting to – the notice of acting in person, the original signed, if you would care for those?
HIS HONOUR:    So that’s a notice of acting in person by your husband that needs to be filed?
MRS IRWIN:     Yes, please, yes.
HIS HONOUR:    Thank you, all right, well, hand that up and we will file that.
What I am proposing is once – at the moment I have – I will come to you in a moment, Mr Leech[7] – but at the moment, I have two applications before me, one a shorter and in theory simpler application from Ms Yule. That will need to be argued. As I understand it, it is likely that the only opposition to that application will come from your husband, not from the other two executors?
[7]    Mr Leech, a legal practitioner, represented the liquidator of Bonshaw at a number of direction hearings but took no part in any of the substantive arguments.
MRS IRWIN:     Yes, that’s correct.
HIS HONOUR:    So I will need to set that argument down for hearing. At the moment, I have Ms Yule’s affidavits and I have your husband’s affidavit. When it comes to a hearing on that argument, I will receive submissions from all parties as to the admissibility of the affidavit material bearing on that argument, and in preparation for that argument, I will make a direction at some point that the parties file a short written submission as to what their position is.
Now, I am not sure how your husband proposes to proceed, but if he is acting on his own without legal representation and he doesn’t wish to return to the jurisdiction, it is going to be very difficult for him to make oral submissions, but I will make directions to enable him to put in a written submission if that is the way he would wish to proceed. Do you think that’s the way he would wish?
MRS IRWIN:     Yes, perhaps I can just read out his statements in court, perhaps?
HIS HONOUR:    Sorry?
MRS IRWIN:     Perhaps I can read out his submissions in court or he can just submit them?
HIS HONOUR:    If they are in writing, I can probably read them for myself. I wouldn’t need you to read them.
MRS IRWIN:     Yes, perfect, wonderful, thank you.
The matter next came before me on 12 May 2015. On this occasion there was no appearance by Campbell, nor was Fiona Irwin present. However, due to an administrative oversight, Campbell had not been directly advised by my chambers or the registry of this hearing date. My chambers received an email dated 12 May 2015 from Campbell in which he stated that he had not been aware of the hearing date. However, Fiona Irwin had been in court during the previous directions hearing at the time the adjournment order was made. Campbell had also sent a letter to chambers attached to an email dated 11 May 2015, in which he acknowledged that his wife had told him there was a hearing on 12 May 2015 but which he asserted to be “hearsay”. In any event, the solicitors for James had only that day filed the further affidavit material provided for in the orders made on the previous occasion.
As a consequence, I indicated to the parties my intention to establish a timetable for the filing of further affidavits, for the raising of objections to any affidavit evidence and for the provision of written outlines of argument from all parties with a view to setting a date for argument on both Ms Yule’s and James’ applications.
I reiterated that I was willing to allow Campbell to file his submissions in writing and that after I had heard oral submissions I would give Campbell an opportunity to file a written reply.
However, in his email correspondence with my chambers, Campbell had raised concerns regarding the method of his representation. On 31 March 2015, Campbell emailed chambers and stated that he no longer had legal representation. He requested that Fiona Irwin be permitted to act as his “legal guardian or next friend” as he lacked capacity. He raised this issue again on 1 April 2015 by email to chambers. At the hearing on 7 April 2015, I had permitted Fiona Irwin to speak on his behalf but I made no formal orders in that respect. I raised these matters with those present at the directions hearing on 12 May 2015.
I discussed with counsel the options that appeared to be available to Campbell, including whether he or any other party might wish to bring an application for a litigation guardian to be appointed. Frequently, in email correspondence with my chambers, Campbell has referred to his concern that he is cognitively impaired and unable to properly represent his own interests. Campbell had a motor vehicle accident in the early 1990s and suffered significant head injuries. He has from time to time referred the Court to brief extracts from a clinician’s report, apparently prepared in the 1990s, suggesting a then present significant level of cognitive impairment. I canvassed with those present at the directions hearing on 12 May 2015 the option of an application being made for either a litigation guardian or a McKenzie friend to be appointed and the potential ramifications of any such appointment. I adjourned the matter for further directions to 26 May 2015 and I made a direction in the following terms.
The third defendant [Campbell] is to file and serve such application and affidavit in support with respect to any orders he seeks as to the future representation of himself in this matter on or before noon Monday, 25 May 2015.
The alternatives open to Campbell would appear to have been:
(i)to continue to conduct the proceedings himself by providing written submissions and/or appearing at the various listed hearings to present his case orally;
(ii)to present his own case in Court but apply to the Court to have a “McKenzie friend”[8] assist him in this process;
(iii)to apply to the Court for a “next friend” or, in modern parlance, “litigation guardian” to be appointed.
[8] In circumstances where a party is unrepresented, the party may be permitted to have a trusted person sit with them at the bar table to prompt and make suggestions to them, but not to act as an advocate: McKenzie v McKenzie [1970] 3 All ER 1034.
A difficulty for Campbell, and one which I do not doubt has informed his consideration of this last alternative, is that a litigation guardian operates as an officer of the Court and assumes complete control of the conduct of the litigation on behalf of the litigant found to be under a relevant disability and who is either physically or mentally incapable of making rational decisions about taking, defending or settling proceedings. Ordinarily, a litigation guardian is required to take all measures to benefit the litigant under a disability but is not required to conduct the litigation in a manner that reflects the litigant’s views. In other words, should a litigation guardian be appointed for Campbell in this matter, Campbell would lose control of the litigation including the way it was to be conducted and would run the risk of the matter being resolved in a way not in accordance with his wishes.
Campbell made no application of any nature within the time made available to him pursuant to the direction made on 12 May 2015 and has made no application concerning representational issues at any time thereafter.[9] At no time has Campbell been refused a request for another person, such as Fiona Irwin, to assist him in Court although in correspondence he has repeatedly insisted that he has been denied the assistance of a “next friend”. I will return to this issue of Campbell’s representation later in these reasons.
[9] Campbell’s fourth interlocutory application (FDN 55) dealt with below is not of this nature although it adverts to a related issue.
The matter next came before me on 26 May 2015, at which time there was no appearance by or on behalf of Campbell. However, prior to the hearing, Campbell had provided another lengthy affidavit. Due to the large file size for the affidavit, it was sent through in parts as attachments to various emails dated 24 May 2015. An original, affirmed, version was not received and given an FDN. However, the scanned version was placed on the file. I advised the parties then present at the hearing in the following terms.
As I understand the position from the correspondence from Mr Campbell Irwin, is that he wishes to maintain his self-representation, or at least his circumstances are such that he is to maintain his self-representation. He wishes to continue to deal with the matter from his overseas location, he has not made any application for a next friend or a McKenzie friend or any other representationally based application. I take from the covering email that he does not, at this stage, propose to.
So, whilst that remains the position, it may change, but whilst it remains the position I would propose to conduct the proceedings in open court with all parties attending who choose to attend. Mr Campbell Irwin has indicated to this point that he won’t be attending, but I will accommodate him to the extent I can in terms of giving him an opportunity to make written submissions at various stages of the process.
After hearing further from all parties then present I made the following directions.
THE COURT ORDERS that:
1. The defendants file and serve any further affidavits upon which the defendants intend to rely in respect of the application of the plaintiff by FDN [27] by Friday 19 June 2015.
2. The plaintiff file and serve any affidavits in response to any affidavits filed by the defendants in respect of the application of the plaintiff by FDN [27] by Friday 3 July 2015.
3. If a party objects to the admissibility into evidence of any affidavit or part thereof filed by a party in respect of the application of the plaintiff by FDN [27] the party is to file and serve a notice stating the objections and the basis for the objections by Friday 17 July 2015.
3A. The third defendant is to file and serve any response to any objections taken to his affidavit material in accordance with order 3, by Friday 31 July 2015.
4.The plaintiff file and serve any written outline of submissions in support of her application by FDN [27] by Friday 7 August 2015.
5. The defendants file and serve any written outline of submissions in response to the application of the plaintiff by FDN [27] by Friday 21 August 2015.
6. The plaintiff file and serve any submissions in reply by Tuesday 25 August 2015.
7. The application of the plaintiff by FDN [27] be listed for hearing on Thursday 27 August 2015 at 10.00am.
8. The plaintiff and the second and third defendants file and serve any further affidavits upon which those parties intend to rely in respect of the application of the first defendant by FDN [30][10] by Friday 19 June 2015.
[10] FDN 30 was James’ original application. It was amended by FDN 38 and ultimately FDN 40 on 3 September 2015.
9. The first defendant file and serve any affidavits in reply to any further affidavits filed by the other parties in respect of the application of the first defendant by FDN [30] by Friday 3 July 2015.
10. The first defendant file and serve any second interlocutory application making amendments to the application of FDN [30] by Friday 19 June 2015.
11. Any application by Mark Hall as liquidator of Bonshaw Pty Ltd (in liquidation) (ACN 007 587 760) to be joined as defendant to the proceedings or for intervention in relation to the interlocutory applications made by the plaintiff or first defendant is to be made by interlocutory application supported by affidavit filed and served by Friday 26 June 2015.
12. If a party objects to the admissibility into evidence of any affidavit or part thereof filed by a party in respect of the application of the first defendant by FDN [30] the party is to file and serve a notice stating the objections and the basis for the objections by Friday 17 July 2015.
12A. The third defendant is to file and serve any response to any objections taken to his affidavit material in accordance with order 12, by Friday 31 July 2015.
13. The first defendant file and serve any written outline of submissions in support of his application by FDN [30] by Friday 7 August 2015.
14. The other parties file and serve any written outline of submissions in response to the application of the first defendant by FDN [30] by Friday 21 August 2015.
15. The first defendant file and serve any submissions in reply by Tuesday 25 August 2015.
16. The application of the first defendant by FDN [30] be listed for hearing on Thursday 27 August 2015 at 10.00am.
17. The question of costs be reserved.
18. Liberty to the parties to apply.
I interpolate here that Campbell is a prolific email writer. At last count, my chambers’ inbox had received well in excess of 100 emails since December 2014, with many extending over multiple single spaced typed pages. On more than one occasion, my associate, writing on my behalf, attempted to explain to Campbell, with minimal success, that whilst he was free to endeavour to conduct the matter to the extent he could whilst living in the Middle East and that, given his self-represented status, the Court would grant some indulgence in this respect, I would only attend to oral submissions, affidavit material and written submissions filed and received or relied upon in open court. Email communications with chambers were only for non-contentious administrative matters or for attaching written submissions but not in order to canvass substantive issues or to provide copies to chambers of correspondence that had passed between the parties.

I return to the directions I made on 26 May 2015 to facilitate the filing of affidavits and submissions for the argument listed 27 August 2015. James provided his submissions by email of 19 August 2015, 12 days later than as required by the timetable. As a result, Campbell and the other parties were left with less than a week until the hearing within which to respond, rather than the two weeks provided for in the directions timetable. Nevertheless, I accepted James’ late written submissions. Campbell did not provide a written submission before the hearing. Having said that, it needs to be understood that he had provided two very substantial affidavits.[11] As is not uncommon with self-represented litigants, the line between material that is truly evidentiary and material that can only be treated as submission was not observed. The two affidavits received from Campbell prior to the hearing on 27 August 2015 contain much of his argument in opposition to the orders sought by James. Furthermore, I took the view that Campbell would be best placed to provide his written argument in opposition once he had before him the full content of James’ submissions, both written and oral (which turned out to be very detailed and complex).
[11] Second affidavit of Campbell Creaghe Irwin affirmed on 29 March 2015 (FDN 33) and Third Affidavit of Campbell Creaghe Irwin affirmed on 21 May 2015. A copy of the third affidavit attached to an email has been placed on the file but for some reason an originally sworn document has not been received for filing.
I heard oral submissions from all parties except Campbell on 27 August 2015. At the conclusion of the hearing I made the following directions.[12]
1.    The plaintiff has liberty to file a further affidavit relating to the location of further documents concerning the plaintiff's appointment to Bonshaw Pty Ltd.
2.    An amended third interlocutory application and consequential revised proposed minutes of order, taking into account of the matters indicated during argument as being abandoned, and also taking account of the concern raised by the Court with respect to the preservation of Ann Irwin's position concerning the licence over the half interest in the Glenelg property, which originates from Bonshaw Pty Ltd, are to be filed by the first defendant within seven days.[13]
3.    A supplementary submission dealing with the Ann Irwin licence issue is also to be filed by the first defendant within seven days.
4.    The plaintiff and the second defendant are to indicate as soon as practicable after they receive the documents within Orders 2 and 3, whether they wish to be heard further on the issues.
5.    A copy of the transcript of the hearing, a copy of these orders and a copy of the documents referred to in Orders 1, 2 and 3 above, if provided, are to be provided to the third defendant.
6.    The third defendant will have 28 days from the date in which he receives the materials referred to in Order 5 to provide any further submissions by way of a reply to the parties' submissions.
7.    Liberty to apply.
[12] Order 6 was made after the hearing.
[13] As earlier indicated, James filed FDN 40 on 3 September 2015.
On 2 September 2015, Campbell sent an email to my chambers attaching a document by way of submission titled “Background to Irwin matter” and, on 7 September 2015, my associate sent an email to Campbell attaching the transcript of the hearing on 27 August 2015, the Record of Outcome containing the orders made by me following the hearing and further documents filed by other parties after the hearing. Campbell was allowed 28 days from the date of that email (7 September 2015) within which to provide his written submissions.
Further communications passed by way of email between Campbell and my chambers during the month of September.[14] I extended the time by which Campbell was to provide his submissions to 23 October 2015. Campbell provided his written submissions by email dated 23 October 2015. He also provided, by emails dated 23 October 2015 and 25 October 2015, further documents on which he wished to rely with respect to Ms Yule’s application, FDN 27, and James’ application, FDN 40.[15]
[14] Further detail in this respect is provided in Yule v Irwin & Ors [2016] SASC 30 at [20].
[15] A contention by Campbell, brought in the context of an application that I recuse myself from further hearing of the matter, that Campbell had not been afforded due process and had been disadvantaged by not being afforded a reasonable opportunity to reply to the submissions made by the other parties, was rejected by me in Yule v Irwin & Ors [2016] SASC 30.
Following the receipt of Campbell’s written submissions but before I formally reserved my decision on FDN 27 and FDN 40, Campbell filed, on 27 October 2015 an interlocutory application, FDN 42, and an affidavit in support, FDN 41. The application sought the following two orders.
1.[James’ application, FDN 40] be rejected on the grounds of misrepresentation to the Court. I am not represented by Campatta [sic] Lempens and have not been for many months. I am self represented.
2.That his Honour recuse himself on the grounds of apprehended bias.
On 18 December 2015, I heard submissions by the parties on Campbell’s application. James and Angus each appeared through counsel and Ms Yule and Campbell each appeared in person to argue their respective positions. Written submissions and Campbell’s affidavit, which contained material by way of submission, had been provided in advance of the hearing. I dismissed the application at the conclusion of the oral argument. I published my reasons on 3 March 2016.[16]
[16] Yule v Irwin & Ors [2016] SASC 30.
Between 27 October 2015 (the filing by Campbell of his recusal application) and the hearing on 18 December 2015, the following additional interlocutory applications were filed (the substance of which are dealt with later in these reasons).
(i)Campbell’s second interlocutory application filed on 30 November 2015, FDN 45;
(ii)Campbell’s third interlocutory application filed on 17 December 2015, FDN 52; and
(iii)An interlocutory application filed by Angus on 11 December 2015, FDN 46, seeking summary dismissal of FDN 45 or, in the alternative, an order for security for costs.
At the hearing on 18 December 2015, various of the parties foreshadowed the filing of additional applications. At the conclusion of the hearing and after having dismissed the recusal application, I made directions designed to permit argument, on the applications then filed and those foreshadowed, to be prepared for and conducted on 3 March 2016. The directions made on 18 December 2015 were administratively modified but, for all practical purposes, affirmed on 24 December 2015 and in the manner that had been foreshadowed to all of the parties on 18 December 2015.
At that point, a timetable had been set to enable any further applications, as foreshadowed, affidavits and outlines of submissions to be filed to enable the argument to take place on 3 March 2016. Essentially, the argument to take place was to resolve applications by Angus, FDN 54, for orders that Campbell’s second interlocutory application, FDN 45, and third interlocutory application, FDN 52, be summarily dismissed and by Ms Yule, FDN 59, James, FDN 57, and Angus, FDN 54, in the alternative, for Campbell to be ordered to pay security for costs with respect to his further prosecution of his two applications.
During the court vacation, on 4 January 2016, Campbell filed a fourth interlocutory application, FDN 55. By this application, Campbell has sought, inter alia, an order that a “competency test paid for by the estate” be undertaken and that it be “tabled at a competency hearing”. My chambers arranged for a directions hearing to take place on 3 February 2016 to consider how to advance Campbell’s fourth interlocutory application. The directions hearing for 3 February 2016 was organised by my chambers with all parties, including Campbell, by email correspondence, commencing with an email on 13 January 2016.
It being a directions hearing only, such that no substantive matters were to be dealt with, Campbell was invited to attend by telephone if he did not wish to attend in person. Campbell gave reasons, largely to do with his travel and domestic arrangements, as to why it was not convenient for him to attend a directions hearing even by telephone on any of the days that were offered. Campbell, in his correspondence, made it plain that he expected his fourth interlocutory application to be given a first return date on the day listed for the hearing of the arguments, 3 March 2016 and that he was not willing to participate in a directions hearing prior to that date. To accede to this request would have necessitated an adjournment of those arguments.
After taking account of case flow management considerations including, in particular, in order to be able to explore such steps as might be available to permit argument on 3 March 2016 to take place, I decided to conduct the directions hearing on 3 February 2016 notwithstanding Campbell’s expressed unavailability. Campbell had said that he was not available at any time during the whole of the month of February even for what would only have been a relatively short telephone attendance to be arranged by my chambers and paid for by the Court. All Campbell was asked to do was to provide a suitable telephone number and negotiate a time, which he refused to do.
At the hearing on 3 February 2016, I heard from the other parties and proposed a series of directions in order to permit Angus to file a foreshadowed application to strike out Campbell’s fourth interlocutory application, FDN 55, and to provide for a timetable which would enable all matters of strike out and security for costs to be argued on the day set aside, 3 March 2016. That day had already been arranged with Campbell on 18 December 2015, being a day on which he was willing to fly to Australia to appear on his own behalf and argue his response to the applications.
During the hearing on 3 February 2016, I canvassed with the parties present what at first blush appeared to be fundamental difficulties inherent in the form and content of Campbell’s fourth interlocutory application.[17] I did this in order for the discussion to be recorded on the transcript which I intended to make available to Campbell. I again canvassed the entitlement of any party, including Campbell, to apply for a litigation guardian to be appointed to represent Campbell and the potential ramifications should such an appointment be made. An alternative purpose behind an enquiry into Campbell’s mental competency, briefly canvassed, was the risk that it might lead to his removal as an executor. A third purpose behind such an enquiry, briefly canvassed, might be to establish a basis to attack earlier dealings between the parties. I raised these matters so that Campbell might consider his position, particularly as to whether or not the fourth application had any utility and if so what.
[17] Transcript of Proceedings, Yule v Irwin & Ors (Supreme Court of South Australia, 10/1300, Justice Nicholson, 3 February 2016) 3-9.
I deferred making any directions on 3 February 2016. I foreshadowed the directions that I was proposing to make. I directed that the transcript be provided to Campbell and that he be afforded seven days to provide responsive submissions to matters raised at the 3 February directions hearing. I indicated that following receipt and consideration of any such submissions, I would make directions in chambers.
On 9 February 2016, I received an email from Fiona Irwin using Campbell’s email address purporting to be an “unofficial” submission by, or on behalf of, Campbell. The content of that document did not cause me to alter my foreshadowed directions. However, I later received email communications from Campbell indicating that the earlier email had not been written by him but by his wife and that it was not his submission and that I was to completely disregard it. My chambers indicated, in correspondence on 19 February 2016, that I would pay no further regard to the document but that its ultimate fate as to whether or not it should remain on the file was a matter that could be dealt with when all parties were in attendance on 3 March 2016. As it happens, and as earlier indicated, the submission did not influence me with respect to the directions I had foreshadowed and it cannot be said that Campbell has been prejudiced by the receipt by these chambers of a document that he has disavowed.
On 12 February 2016, I made directions administratively in the form that had been foreshadowed in order to enable an application by Angus, seeking to strike out Campbell’s fourth interlocutory application, FDN 55, to be argued on 3 March 2016, together with his other applications of similar nature.
Thereafter, further email communications were received by my chambers from Campbell essentially protesting against the course that had been taken and indicating to the effect that he would not participate in the proceedings further until the orders sought in his fourth application, FDN 55, were made. As earlier indicated, by the fourth interlocutory application, Campbell had sought, in effect, court orders that he undergo a “competency test” to be paid for by the estate, that the “competency test” be undertaken by way of an independent psychiatric or psychological evaluation in Australia and that the “competency test” be “tabled at a competency hearing at a date to be set”. However, Angus had applied for Campbell’s fourth interlocutory application to be struck out and Angus’ application was listed for argument on 3 March 2016. For this reason alone, it was simply inappropriate for Campbell to make it a condition of his further involvement that his application be allowed without permitting it to be challenged.
At 6.54pm, Australian Central Daylight Time, on Wednesday 2 March 2016, an email was received by my chambers from Campbell. Attached was another application seeking, again, an order that I recuse myself from any further hearing of the matter, FDN 65, together with an affidavit in support. The copy of the affidavit attached to the email had not been affirmed or sworn. The email indicated that a properly attested copy would follow shortly. This was subsequently received and has been filed, FDN 66. Campbell also indicated in the email of 2 March 2016 that he would not be attending the next day’s hearing.
At the hearing on 3 March 2016, I heard brief submissions from the parties present as to how I might proceed given the non-appearance of Campbell. It was submitted that his failure to attend was without any reasonable excuse and that I should not entertain the second recusal application. It was submitted that this application raised no issues different from those dealt with at the 18 December 2015 hearing, that it was presented too late and should not be permitted to derail the argument listed for 3 March and that it was incumbent on Campbell to attend, as arranged, and to explain why a second recusal application should be entertained so soon after the first one. These submissions carried substantial weight. Nevertheless, I decided I would consider and rule on the second recusal application. However, I did not hear submissions from any of the parties then present directed to the substance of Campbell’s second recusal application.
I heard submissions from all parties present in support of the applications by Angus to strike out Campbell’s second, third and fourth interlocutory applications. I heard submissions with respect to the applications by each of Ms Yule, James and Angus that, in the alternative, Campbell be ordered to pay into Court security for their respective costs involved in the prosecution of his three applications. At the end of the hearing on 3 March 2016, I made the following directions.
1.A copy of the transcript of the hearing is to be provided to [Campbell].
2.[Campbell] has 28 days from the date from which he is emailed the transcript of the hearing to provide any further materials and submissions he wishes to provide in support of his second recusal application and in response to the arguments and submissions put by the other parties at the hearing.
On 4 April 2016, Campbell provided a 127 page written submission. Campbell also provided two extracts of the statement of claim in Action 1677 of 2009.
The second recusal application, FDN 65
I have had regard to the affidavit provided by Campbell, FDN 66, in support of the second recusal application together with the written submissions and the extracts of the statement of claim in Action 1677 of 2009 provided by Campbell. Apart from the events which occurred between the hearing and dismissal of the first recusal application on 18 December 2015 and the filing by Campbell of his second recusal application of 2 March 2016, as outlined earlier, Campbell has raised no new allegations concerning my conduct of the proceedings that would cause me to depart from the decision I made on 18 December 2015.
As far as the procedural matters dealt with by me after 18 December 2015 are concerned, the directions for the conduct of the proceedings that I made and my conduct of the hearing on 3 March 2016 were not such that would cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions that are before me,[18] nor are they such as to disclose actual bias on my part.
[18] The test for apprehended bias and the method of its application involving a two stage process was discussed by me in Yule v Irwin & Ors [2016] SASC 30 at [7]-[10].
The manner by which I have conducted the procedural aspects of this matter to date and the procedural directions I have made to date might be a proper subject for an appeal or an application for permission to appeal. However, Campbell has not identified anything that might cause me to determine the issues in this case other than on their legal and factual merits and has not identified any logical connection between my conduct and any feared deviation from the course of deciding the case on its merits.[19] Campbell’s second application that I recuse myself from the further conduct of these proceedings is refused.
Application(s) by Angus for summary dismissal of Campbell’s second, third and fourth interlocutory applications
[19] See generally Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
A more detailed description of the context in which Campbell’s second, third and fourth interlocutory applications are to be considered will be evident from my consideration, further below, of the issues arising with respect to the applications by Ms Yule and James.
I agree with the overarching submission put by counsel on behalf of Angus that Campbell’s applications are misconceived insofar as they rely on the Court’s jurisdiction to provide advice and directions to the executors of a deceased’s estate. Such an application is a summary procedure in which “private advice” is given to an officer of the court.[20] An executor or beneficiary does not require such advice, direction or permission of the Court before commencing proceedings. There is a twofold purpose of, or benefit to be obtained from, an application for advice and directions under section 69 of the Administration and Probate Act.
[20] See, generally, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [61]-[66].
The first is that, if an executor engages in conduct that is consistent with or follows the direction given by the Court, the executor will be protected from any claim by a beneficiary for breach of trust arising from action or inaction in accordance with that direction.[21]
[21] See, generally, Underwood v Hatton (1842) 5 Beav 36, 49 ER 490; Smith v Smith (1861) 1 Dr & Sm 384, 62 ER 426; Re Atkinson [1971] VR 612 at 615 and see also Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [65] with reference to section 63(2) of the Trustee Act 1925 (NSW).

The second purpose of or benefit to be obtained is that the advice and direction of the Court can resolve doubt about whether it is proper for an executor to incur the costs and expenses of prosecuting or defending litigation.[22]
[22] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [72].
I agree with the submission put on behalf of Angus that it is evident from the affidavits filed by Campbell in support of his applications that Campbell does not want advice and direction as to what he should do as an executor nor is he seeking the protection available from the obtaining of and following such advice and direction. Rather, Campbell is seeking to further his own interests as a beneficiary.
Materials relied on by the parties with respect to the summary dismissal argument
The written materials before the Court on the applications for summary dismissal of Campbell’s second, third and fourth applications include the following.
Affidavit evidence by Campbell
As earlier indicated, on 24 December 2015, I made a number of directions as to times within which the parties were to provide any further affidavit evidence or written submissions relevant to the summary dismissal argument. Campbell was to file and serve any further affidavits to be relied upon by him in opposition to Angus’ amended interlocutory application dated 22 December 2015, or in opposition to any application made by Ms Yule or James for security for costs by no later than Monday 15 February 2016. My Chambers did not receive any affidavit material from Campbell on this issue.
Affidavit evidence filed by Angus
(i)FDN 47 – Affidavit of Matthew Selley sworn on 11 December 2015.
(ii)FDN 53 – Third Affidavit of Matthew Selley sworn on 23 December 2015.
(iii)FDN 61 – Fourth Affidavit of Matthew Selley sworn on 17 February 2016.
Outlines of argument provided by the parties
(iv)“Outline of submissions of the second defendant – application to dismiss the third defendant’s fourth interlocutory application” received by email on 17 February 2016 on behalf of Angus.
(v)“Submissions of first defendant in relation to second interlocutory application of second defendant” received by email on 22 February 2016 on behalf of James.
(vi)“Outline of submissions of the second defendant – application to dismiss the third defendant’s applications and/or seek security” received by email on 24 February 2016 on behalf of Angus.
(vii)Written submission of Campbell received by email on 4 April 2016.
The application to dismiss Campbell’s fourth application, FDN 55
In his fourth interlocutory application, Campbell “requests the following orders or directions”.
1.Pursuant to section 24, 40, 44, 69, 72C, 123, 124, of the Administration and Probate Act 1919 (SA), the advice and directions of the Court in relation to, or alternatively pursuant to Rule 206 of the Supreme Court Civil Rules the determination without administration of, the following matters in connection with the administration of the estate of James Campbell Irwin deceased (“the deceased”) who died on 4 November 2005 leaving a last will and testament dated 9 August 2005 (“the will”) and codicil to the will dated 10 October 2005 (“the codicil”) which were admitted to probate by the Court in its Testamentary Causes Jurisdiction on 2 May 2007:
(a)     Campbell Creaghe Irwin (“an Executor and beneficiary”) and Campbell Creaghe Irwin (“a Trustee”) undergo a competency test paid for by the Estate of the late Jamie Irwin.
(b)     Campbell Creaghe Irwin (“an Executor and beneficiary”) and Campbell Creaghe Irwin (“a Trustee”) requests that competency test be determined by an independent psychiatric or psychological evaluation in Australia (so as not to demonstrate bias).
(c)     Campbell Creaghe Irwin (“an Executor and beneficiary”) and Campbell Creaghe Irwin (“a Trustee”) requests that the competency test be tabled at a competency hearing at a date to be set.
2.That no further decisions or actions involving Campbell Creaghe Irwin (“an Executor and beneficiary”): and Campbell Creaghe Irwin (“a Trustee”) or the Estate of James Campbell Irwin or Bonshaw Pty Ltd, an asset of the Estate, be undertaken until such time as that competency trial has been heard.
Campbell’s fourth interlocutory application, dated 23 December 2015 and filed on 4 January 2016, is said to be supported by Campbell’s sixth affidavit of the same date, FDN 56. By the affidavit, Campbell asserts, inter alia, that:
(i)a serious car accident in 1993 left him cognitively impaired as to which James and Angus are well aware;
(ii)in effect, steps in the administration of the estate have been undertaken in the past notwithstanding this cognitive impairment;
(iii)if he lacks capacity due to a cognitive disability, “especially in relation to 1677/2009, 149/2003 and 1300/2010”, such needs to be demonstrated;
(iv)any such cognitive disability, if shown, will have a bearing on the three sets of proceedings; they “may need to be summarily dismissed or have a rectification order or control and correct any invalid determination, especially if my good faith as a result of any disability has been taken advantage of”.
(v)his capacity to make decisions will have a bearing on how hearings are conducted and whether there is a need for a next friend; and
(vi)it is incumbent on the Court to protect his interests if he is found to be incompetent.
The application and affidavit are drawn in a speculative and hypothetical manner. Whilst Campbell asserts a cognitive impairment as a result of the 1993 motor vehicle accident, he has not provided any evidence as to the extent of any such impairment as at the time he filed his application or as at any material time after the date of the deceased’s death (4 November 2005). As earlier indicated, Campbell has on other occasions supplied my chambers with very short extracts from clinician reports prepared in the 1990s but these are of no assistance as to the position after 2005. The application and affidavit are speculative and hypothetical because Campbell seeks an inquiry into his cognitive capacity in order to see if any findings might have relevance to a reconsideration of past events or when considering future events.
It is not at all clear what Campbell seeks to achieve. His cognitive abilities are potentially relevant in three respects: first, as to whether the appointment of a litigation guardian might be warranted; second, as to whether grounds might be established for the removal of Campbell as an executor and trustee of the estate; and third, as a step in the process of challenging, and with a view to setting aside any prior inter partes transactions entered into by Campbell, with respect to which it might be shown he lacked capacity. I will deal with each of these briefly.
Litigation guardian
In accordance with Rules 78 and 79 of the Supreme Court Civil Rules 2006, a process is established whereby a litigation guardian, ordinarily, ought to be appointed to conduct litigation on behalf of a person under a disability (a “protected person”) as defined. The Court has a discretion whether or not to make such an appointment and can do so on the application of the person under a disability or someone on their behalf, on the application of any other interested person (including any other party to the litigation) or on the Court’s own motion.
Campbell has not made any such application nor has any other executor. Whilst Campbell refers to the possibility of a “next friend” in his sixth affidavit, I do not understand him to be using that term to mean a litigation guardian. Rather, I understand Campbell to be suggesting that he might require or would be entitled to the assistance of a “McKenzie friend”, such as Fiona Irwin, in Court. In an email dated 14 January 2016, addressed to my chambers,[23] Campbell’s confusion in this respect is evident when he asserts “[i]ndeed had my wife intervened as my next friend (unofficially of course as it was always denied)...”. However, in another email dated 20 January 2016 addressed to the solicitors for Angus,[24] Campbell, wittingly or unwittingly, appears to leave the door open for a litigation guardian to be appointed – “I am not saying I am incompetent to represent my interests in litigation, nor I am not saying that I am not. That is why I seek a Competency hearing to determine the answer”.
[23] See Exhibit MS8, FDN 61A, to the Fourth Affidavit of Matthew Selley sworn 17 February 2016, FDN 61.
[24] Exhibit MS9, FDN 61B, to the Fourth Affidavit of Matthew Selley sworn 17 February 2016, FDN 61.
I interpolate here that, at present, there is nothing before me to cause me to embark on an enquiry as to the need for a litigation guardian to be appointed on the Court’s own motion. I have recently canvassed the approach to be adopted by a court when considering whether or not to embark upon an enquiry into whether a litigant is a person under a disability such as to indicate the need for a litigation guardian to be appointed.[25] For the present, it is sufficient to note the relevant aspect of the definition of “person under a disability” for this purpose. For it is only with respect to “a person under a disability” that a litigation guardian might be appointed. Unless Campbell is shown to be a person under a disability, he, as an adult, will be presumed to have sufficient capacity to conduct these proceedings. The notion of a “person under a disability” is defined in Rule 4 of the Supreme Court Civil Rules 2006. Of present relevance is paragraph (c)(ii) of the definition, pursuant to which a person under a disability includes:
[a] person who is not physically or mentally able –
(i)...
(ii)to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);
[25] Manning v Russell [2015] SASC 91; (2015) 123 SASR 135 at [18]-[20].
It is to be accepted that any particular legal proceedings will fall somewhere on a broad spectrum of complexity. The present proceedings, particularly insofar as the application by James, FDN 40, is concerned, do raise legal issues of some complexity. In Dalle-Molle v Manos,[26] Debelle J said this.
All persons who have reached the age of majority are presumed to have the capacity to enter into contracts or other transactions so that those who assert the contrary bear the onus of proof ... The principle applies with equal force where it is alleged that a person lacks the required mental capacity ... The plaintiff, therefore, has no onus of proof to discharge. The burden is on those who assert incapacity.
. . . .
The level of understanding of legal proceedings, must, I think, be greater than the mental competence to understand in broad terms what is involved in the decision to prosecute, defend or compromise those proceedings. The person must be able to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which of course is but one of the possible outcomes. In this respect, it is helpful to note the tests adopted in cases involving the consent to or refusal of medical treatment such as Re C (Adult: Refusal of Medical Treatment) ... and Re K; Re F ... . Although those cases deal with a different kind of issue, they provide further examples of how it is necessary to determine the nature and extent of the explanation and understanding required. They also demonstrate that the test to mental capacity is issue- specific.
[citations omitted]
[26] [2004] SASC 102; (2004) 88 SASR 193 at [17] and [26].
Campbell has been involved in legal proceedings concerning the estate for an extended period of time now. He was represented by solicitors in Action 1677 of 2009, in Action 149 of 2013 and for various periods with respect to the present proceedings, Action 1300 of 2010. He has engaged a number of firms of solicitors over the years and has represented himself for substantial periods of time. At no time has an application been made by or on behalf of Campbell for a litigation guardian to be appointed. At no time has it been suggested by Campbell’s legal representatives that he might not be capable of understanding the nature of the proceedings he was involved in or incapable of giving instructions with respect to those proceedings.
I have had the benefit of copious written materials written by Campbell or on his instructions and I have also heard extensive oral submissions put by Campbell on his own behalf. There is no contemporary medical evidence before the Court dealing with Campbell’s cognitive abilities. On the information presently available to me, I have no reason to think that Campbell does not understand the nature of the applications for advice and directions brought by Ms Yule and James as executors of the estate or the issues raised for determination in those applications. In these respects, Campbell has been able to present to the Court detailed submissions in relation to the issues that suit his ultimate purposes, albeit submissions that in many respects are misconceived although no more so than often emerge from litigants who do not have the benefit of legal assistance.
As I say, I have raised the matters immediately above simply to indicate that there is nothing before me at present to cause me, of the Court’s own motion, to embark on an enquiry into whether or not Campbell is a person under a disability for the purposes of potentially appointing a litigation guardian. Further, there is no such application by any party, including Campbell, before me. I doubt very much that Campbell has any interest whatsoever in having a litigation guardian appointed. There are a number of reasons as to why this would be inimical to his interests such as he perceives them.
In addition, the options available concerning Campbell’s representation were explained to him soon after the proceedings came before me. On 12 May 2015, I directed that Campbell was to file and serve an application and affidavit in support with respect to any orders he might seek as to his representation on or before Monday, 25 May 2015. No such application was forthcoming and still no such application has been forthcoming. I also canvassed in some detail the three ways in which a cognitive disability, if established, might be relevant during the directions hearing of 3 February 2016.
Whether any cognitive disability suffered by Campbell might give rise to grounds for his removal as a trustee of the estate
Lack of capacity may be a ground for the removal of a trustee pursuant to section 36 of the Trustee Act 1936. In the event that Campbell were to be found to be a person under a disability and incapable of representing his own interests, he would be at risk of being removed as an executor and trustee of the estate. To this point, no such application has been brought either by Campbell or any of his co-executors. It is not a matter I need to consider further.
I agree with the submission put by counsel on behalf of James that, in any event, Campbell, through his conduct and participation in the proceedings, has asserted that he has capacity to continue to act as a co-executor and trustee of the estate. He has either explicitly or implicitly asserted throughout the proceedings that he is capable of so acting and that he should be permitted to continue to act as an executor and trustee.
Whether Campbell has capacity to enter into contracts, agreements or other inter vivos transactions
If Campbell wishes to challenge past transactions on the basis that he was mentally incompetent when he entered into those transactions and that unlawful advantage of that state was taken by other parties (notwithstanding that Campbell was being legally advised at the time), he would need to commence proceedings in the ordinary course, particularising the transactions concerned, the circumstances in which they came about and the facts upon which he would rely in order to obtain an order that any such transaction should be set aside. Apart from Action 1677 of 2009 which was dismissed on 9 December 2012 for want of prosecution, he has not done so. Campbell received in 2008 a one third interest in the estate residue by way of a transfer of shares in publicly listed companies with a value in excess of $5 million. He has had the use and enjoyment of that fund since about June 2008. In these circumstances, any challenge to the underlying transactions, some eight years later, would attract formidable difficulties.
It is not the Court’s role to undertake evidentiary enquiries or investigations on a litigant’s behalf. Campbell, like any other litigant, is responsible to obtain and marshall such evidence as may be available to him in admissible form. Once that is done, and if appropriate, a litigant may then make application to the Court for such orders as the evidence available will support. Campbell has not done this.
For the above reasons, including the overarching considerations at paragraphs [57] to [60], I agree with the submission put by counsel on behalf of Angus that Campbell’s fourth interlocutory application does not disclose any legitimate forensic purpose and lacks utility. As a consequence, the fourth interlocutory application is an abuse of process within Rule 193 of the Supreme Court Civil Rules 2006 (see further below) and I order that it be dismissed.
The application to dismiss Campbell’s second application, FDN 45
In his second interlocutory application, Campbell “seeks the following orders or directions”.
1.Pursuant to section 24, 40, 44, 69, 72C, 123, 124, of the Administration and Probate Act 1919 (SA), the advice and directions of the Court in relation to, or alternatively pursuant to Rule 206 of the Supreme Court Civil Rules the determination without administration of, the following matters in connection with the administration of the estate of James Campbell Irwin deceased (“the deceased”) who died on 4 November 2005 leaving a last will and testament dated 9 August 2005 (“the will”) and codicil to the will dated 10 October 2005 (“the codicil”) which were admitted to probate by the Court in its Testamentary Causes Jurisdiction on 2 May 2007:
1.    Whether Campbell Creaghe Irwin (“an Executor and beneficiary”): would be justified in requesting and should request the formal discharge of James Campbell Irwin, Angus William Irwin and Melissa May Yule as Executors in the Estate of James Campbell Irwin under s.36 and s.41 of the Trustee Act 1925;
2.    would be justified in requesting and should request the dismissal of Ms Yule as Director of Bonshaw Pty Ltd, who appointed to act on behalf of the beneficiaries of the Estate in accordance with the Corporations Act 2001 and the CRIMES ACT 1958 – SECT 83A;
3.    request payment of all costs, losses and expenses of Campbell Creaghe Irwin to be paid out of the Estate in connection to 1300/2010, as per the order by His Honour Justice Gray J, made on 4^th September 2012.
i.     would be justified in requesting and should request costs, losses and expenses for 149/2013;
ii.    and would be justified in requesting and should request costs, losses and expenses for 1677/2009;
iii.     any monies owed to the ATO or others as a result of trustee breaches, unjust enrichment and any liabilities of The Estate or Bonshaw Pty Ltd to be paid by those causing the breaches in the Estate of James Campbell Irwin
(collectively ‘costs and losses’).
4.    That Bonshaw land should be sold or impounded to meet these costs, or any other property of trustees that the Court deems appropriate.
5.    Would be justified in requesting and should request, that 1300/2010 and 149/2013 be set aside so that the issues be tried again on the basis of misrepresentation, document manipulation, fraud and gross misconduct:
6.    Would be justified in having the strike out of 1677/2009 by His Honour Justice Lunn (retired) be revoked and that the court uses it’s “inherent power” to “preserve and protect” its integrity by overturning the invalid determination by Justice Lunn.
7.    The verdicts were arrived at other than by strict compliance with mandated legal requirements and if remain, would undermine the confidence in courts generally.
If ‘Yes’ to questions (1-7):
(i)    Would the sale of Bonshaw land be sufficient to meet these costs;
(ii)     If the monies held by the Estate are insufficient to pay these costs in full, is the Court empowered to request, and would the Court be justified in requesting the impoundment of property of those who have caused breach of trustee duties.
(iii)    The Court to arrange for independent valuation of Bonshaw land a residuary estate asset. Pursuant to clause 7 of the Will, the whole of the land comprised in Certificate of Title Register Book Volume 5506 Folio 644 (being the land known as “Bonshaw” comprising 1,620.66 hectares of farming land being Sections 543, 552, 553, 554 Hundred Wirrega in the area named Carew) “Bonshaw land” to be sold at public auction.
If “yes” to question (iii) that all other costs and losses by Campbell Creaghe Irwin be met by the trustees Melissa May Yule, James Campbell Irwin and Angus Irwin; due to trustee breaches;
(iv)    Deduct from or set off against such entitlement of James Campbell Irwin, Angus William Irwin, Melissa May Yule any sums payable to Campbell Creaghe Irwin pursuant to orders for costs made against the Estate in:
(1)These proceedings 1300/2010;
(v)     Deduct from such entitlement of James Campbell Irwin, Angus William Irwin and Melissa May Yule, to pay, any sums of money owed to Campbell Creaghe Irwin by way of trustee breaches in:
(1)These proceedings;
(2)Action no. 1677 of 2009 in the Court; and
(3)Action no. 149 of 2013 in the Court.
(vi)    Request or petition a formal passing of the Accounts before the Courts and for document production and documentary issues; live witnesses (not Affidavit only) and expert evidence;
(vii)   Demonstrate that settlement or part settlement has been made to Campbell Creaghe Irwin pursuant to clause 7 of the Will.

Rule 206 of the Supreme Court Civil Rules 2006 (and its analogue in force at the time of the deceased’s death) provides a jurisdictional basis for the Court to determine questions which arise in relation to the administration of the estate of a deceased person without having to make an order for administration.
Three of the assets dealt with by the 2008 Agreement but with respect to which transfer of title to a beneficiary or beneficiaries has not yet been effected are the deceased’s undivided half-interest in the Glenelg residence, Bonshaw’s undivided half-interest in the Glenelg residence and the Bonshaw land the registered proprietor of which is Bonshaw. The registered title to the Glenelg residence is still in the names of the deceased and Bonshaw as tenants in common.
It is the expectation of the proponent executors that, provided the advice and directions sought by James are given in the form sought by James, the liquidator of Bonshaw will transfer the whole of Bonshaw’s interest as registered proprietor in the Bonshaw land to the executors and Bonshaw’s half-interest, as registered proprietor, in the Glenelg residence to the executors. The liquidator, through counsel, indicated in open court that this was a likely outcome provided certain conditions, including payment of the liquidator’s fees, were met. I am satisfied that provided the advice and directions, as sought, are given, the executors will very likely be able to meet the liquidator’s conditions and the anticipated transfers will take place.
In the event that the transfers were to occur, the executors would then, as registered proprietors of the whole of the Bonshaw land and the whole of the Glenelg residence, be in a position to effect a transfer of those assets in accordance with and to give effect to the 2008 Agreement.
I turn to consider the Bonshaw land and the various submissions of James as to how that land ought to be dealt with first. Bonshaw is the registered proprietor of the Bonshaw land. The first step is for the liquidator to be persuaded to distribute the Bonshaw land to the executors as part of completing the winding up of Bonshaw. As I have said, the liquidator has indicated that in appropriate circumstances he would be prepared to do so. The proponent executors seek the advice and direction of the Court that, if this were to occur, it would be appropriate for them and within their authority to transfer the Bonshaw land to James in accordance with the 2008 Agreement.
It may be, that insofar as the Bonshaw land and the half-interest in the Glenelg residence, both held by Bonshaw, are concerned, the 2008 Agreement amounts only to an agreement between the four executors as to the appropriation of those real estate interests if and when title were to be transferred by the liquidator into the names of the four executors. Strictly, these real estate assets did not (and still do not) form part of the estate assets available for distribution. The relevant estate assets are the shares in Bonshaw – 100 per cent of which were beneficially owned and controlled by the deceased.
If so, such that strictly there has been as yet no appropriation of these two parcels of real estate, the executors would receive any transfer of title from the liquidator in their capacities as executors and would not hold title to the two parcels of real estate once transferred in their capacities as trustees of an appropriated asset. In these circumstances, and in accordance with principles earlier discussed as to the capacity for an executor or executors to act when dealing with the assets of the estate, in the absence of a unanimous agreement by all executors, it would be within the power of the proponent executors to effect an appropriation of both parcels of land once the executors became the registered proprietors thereof in accordance with the agreement to appropriate as provided for in the 2008 Agreement.
In the circumstances, and given the nature and terms of the 2008 Agreement, I take the view that the proponent executors would be entirely justified in making such an appropriation and in giving effect to such an appropriation once made, in accordance with the powers to advise and direct the executors pursuant to section 69. Indeed, in my view, the four executors would be bound by the 2008 Agreement to do so.
In short, either there has been an appropriation of the Bonshaw land and the half-interest in the Glenelg property held by Bonshaw in accordance with the terms of the 2008 Agreement or, if not, as soon as the executors were to become the registered proprietors, they would be obliged to make such an appropriation even in the absence of Campbell’s consent.
It follows that in order for the Bonshaw land to be transferred by the liquidator of Bonshaw to the executors and for the appropriation of the Bonshaw land to James either effected by or agreed to by the 2008 Agreement, the executors will need to execute instruments for the purpose of the Real Property Act 1886 in these respects:
(i)to accept, as transferees and in their capacity as executors, a transfer in registerable form of the Bonshaw land from the liquidator on behalf of Bonshaw as transferor and to execute any relevant instruments under the Real Property Act necessary to obtain the transfer to them of legal title to that land; and
(ii)subsequently to execute as transferors the necessary instruments under the Real Property Act required to transfer the Bonshaw land from the executors to James as ultimate transferee.
Ordinarily, the expectation would be that the registered interest of Bonshaw in the Bonshaw land, which is to be transferred to the legal personal representatives of the deceased, would be transferred to all of the legal personal representatives.
Similar considerations apply with respect to the half-interest in the Glenelg residence of which Bonshaw remains the registered proprietor. In that case, a similar series of instruments as required by the Real Property Act would need to be executed and registered in order to transfer the Bonshaw half-interest to the four executors and for the four executors to then transfer that half-interest to the three siblings in their capacities as beneficiaries and as the ultimate transferees.
A further complication arises in connection with the half-interest in Glenelg still registered in the deceased’s name. Again, various instruments in registerable form and as required by the Real Property Act would need to be executed by the executors and by the siblings in their capacity as beneficiaries in accordance with the following.
(i)because legal title to the deceased’s half share to the Glenelg residence remains in the name of the deceased, a transmission application would need to be lodged under the Real Property Act. In this case, Campbell would be required to execute the necessary instrument as one of the executors of the estate; and
(ii)once a transmission application were to be registered in relation to the deceased’s half share, the executors would then need to distribute that interest, which is subject to the life interest given to the deceased’s wife, Ann, to the three siblings to hold as tenants in common in equal shares. This would be necessary in order to give effect to an appropriation made or agreed to with respect to the deceased’s half-interest at the time of the 2008 Agreement. This also would require Campbell to execute in his capacity as executor an instrument under the Real Property Act as transferor and an instrument under the Real Property Act in his capacity as beneficiary/transferee.
The required steps just summarised are set out in more detail in the proposed Minutes of Order set out earlier in these reasons. However, a practical difficulty for the proponent executors arises from the fact that the Real Property Act requires all executors to “concur in every instrument relating to the land of the deceased registered proprietor”.[72] This requirement arises, for one purpose or another, directly with respect to the half-interest in the Glenelg residence held by the deceased at the time of his death, the Bonshaw land and the half-interest in the Glenelg residence presently held by Bonshaw.
[72] Section 179 of the Real Property Act 1886.
In the event that the latter two parcels of land were not in fact appropriated at the time of the 2008 Agreement, and notwithstanding that the intention of the proponent executors in such a case would be to immediately make an appropriation as soon as title is transferred to them in accordance with their obligations under the 2008 Agreement, these two parcels of land, arguably, would comprise “land of the deceased registered proprietor” immediately on and following the transfer of title to the executors.
If only out of an abundance of caution, the situation with respect to all three parcels of land is one that should be treated as attracting the requirement of section 179.
Another issue that requires consideration arises from the fact that once all of Glenelg were to be transferred into the names of the three siblings, the deceased’s wife, Ann, would have a life interest in one undivided equal part of the Glenelg residence (being that originally held by the deceased and dealt with in accordance with the terms of the will) but would have no corresponding interest in the other undivided equal part of the Glenelg residence which originally was in the name of Bonshaw. That is because the licence to occupy for life as granted by Bonshaw is solely contractual in nature and does not confer any interest in land for the purposes of the Real Property Act. It would appear that that licence would not survive a transfer by Bonshaw of its half-interest in the Glenelg residence to the executors of the estate and thereafter to the siblings as beneficiaries. It follows that until Ann’s life interest in one undivided equal part of the Glenelg residence were to come to an end, there would be no merger of estates caused by the same registered proprietors having acquired all of the interests in both undivided parts of the land.
It was for this reason that I raised with counsel for the proponent executors the question of whether or not Ann Irwin should be heard on the application and the question of the extent to which, if at all, her interests could be and should be protected in the event that the proponent executors’ proposal were to be given effect. As a consequence, my chambers received and I subsequently admitted into evidence for the purpose of James’ application, FDN 40, a letter from the solicitors representing Ann Irwin. I will not set out the letter in full. However, paragraphs 5 to 8 of that letter are in these terms.
5.We understand that our client’s interests in relation to [sic] Bonshaw Licence may be affected by the orders sought in the Application.
6.Our client was co-plaintiff in the proceedings in the Supreme Court of South Australia (Action No. 149 of 2013) in which orders were made for the winding up of Bonshaw. Our client is aware that Bonshaw is now in liquidation and that Mr Mark Hall is the liquidator of the company.
7.Our client is aware that his Honour has enquired of counsel for her sons whether she wishes to be heard on the Application given that, if the orders sought by her son James (with the support of his brother, Angus) [sic] it would follow that the Bonshaw Licence would lapse.
8.Our client’s position is as follows:
(a)     Our client has sought and received independent legal advice in relation to this matter from this firm.
(b)     She does not wish to become a party to or be heard in relation to, the Application.
(c)     On the understanding and representations that her sons, James and Angus, have each committed to grant a licence to her over their interests in the Glenelg residence they receive via Bonshaw and the Estate in the same terms as the Bonshaw Licence, she does not oppose the making of any of the orders sought on the Application. Our client understands that her other son, Campbell Irwin, will receive a one third interest in the half interest in the Glenelg residence currently held by Bonshaw and that Campbell may not agree to grant a similar licence over his interest in our client’s favour.
(d)     She does not seek to enforce the rights to her under the Bonshaw Licence against either Bonshaw or its Liquidator, and she does not seek to prove in the liquidation of Bonshaw for any claims that she may have in connection with the Bonshaw Licence. Upon the making of the orders sought by James and the transfer of Bonshaw’s interest in the Glenelg residence to the Executors, she surrenders and disclaims her rights under the Bonshaw Licence against Bonshaw.
(e)     She agrees to the transfer from Bonshaw to the Executors of the half share in the Glenelg residence owned by Bonshaw.
(f)     Subject to sub paragraph (c), she agrees that if the Executors become the registered proprietors of the half share of the Glenelg residence presently owned by Bonshaw they may take that interest free of the rights which she had under the Bonshaw Licence, and she surrenders and disclaims any rights which she may otherwise have had to enforce the Bonshaw Licence against the Executors.
I am satisfied that in the event that the 2008 Agreement were to be given effect to in the manner sought pursuant to James’ application and in accordance with the proposed Minutes of Order, Ann Irwin’s position, insofar as is relevant, would be appropriately protected provided that James and Angus observe the condition set out in paragraph 8(c) of the latter from Ann Irwin’s solicitors. Any orders I make on James’ application will need to be conditional in this respect.
The primary difficulty for the proponent executors in implementing the 2008 Agreement, bearing in mind the complexities involved in arranging for the transfer of the various assets concerned arising by virtue of the provisions of the Real Property Act and otherwise, is the fact that Campbell is not willing to participate further by way of executing any necessary instruments, or otherwise, in order to implement the 2008 Agreement. If by nothing else, this is to be inferred by Campbell’s continued opposition to these proceedings and the orders sought by James. The practical problem before the three proponent executors is how to proceed in these circumstances.
Conclusion to this point
For the reasons given to this point, I am satisfied that the 2008 Agreement should be implemented. I am also satisfied that, provided they are within power, advice and direction and orders in the nature of those sought in the proposed Minutes of Order should be made. However, I do have some residual concerns with the process envisaged by those Minutes. These are matters with respect to which I will need to receive further submissions before finalising any form of orders.
Returning to the proposed Minutes of Order previously set out, and in terms of the advice sought, I am prepared to answer “Yes” to the questions 1(a), 1(b), 1(c), 1(d), 1(e), 1(f), 1(g) and 1(i). As far as the advice sought by question 1(j) is concerned, I would be assisted by further submissions from the parties.
As far as the machinery orders (proposed orders 2 to 14) are concerned, whilst I accept the position of the proponent executors that a means to implement the 2008 Agreement must be identified and given effect to, I still have concerns as to my power to make all of the orders sought; hence the need for further submissions. I will defer consideration of costs issues (proposed orders 15 and 16) until all matters of principle have been resolved. I turn now to briefly address the matters on which I would be assisted by further submissions.
Matters requiring further submissions
The proponent executors submit that the circumstances before the Court are such as to empower the Court, pursuant to section 37 of the Trustee Act 1936, to make an order vesting the land in question in the three proponent executors for the purpose of giving effect to the 2008 Agreement. However, the proponent executors submit that a preferable and more practical approach is for the Court to order, pursuant to section 40 of the Trustee Act 1936, that Ms Yule be appointed to execute documents which would otherwise have to be executed by Campbell for the purposes of the Real Property Act. Section 40 of the Trustee Act provides as follows:
40–Power to appoint person to convey
In all cases where a vesting order can be made under any of the foregoing provisions the Supreme Court may, if it is more convenient, appoint a person to convey the land or release the contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.
Section 40 has been considered recently by this Court in JD & KJ Zohs Properties Pty Ltd v Ferme.[73] In that case, Stanley J observed:[74]
The exercise of the power conferred upon the Court pursuant to s 40 to appoint a person to convey land is conditional upon two factors. First, the Court must be satisfied a vesting order could be made pursuant to the Trustee Act. Secondly, the Court must be satisfied it is more convenient to make an order pursuant to s 40 than to make a vesting order.
. . . .
The question of convenience in s 40 of the Trustee Act does not erect a high threshold. It merely requires a Court to be satisfied in a relative sense that it is more convenient to make one form of order over another. That is to say that there is an advantage to making an order pursuant to s 40 rather than a vesting order. In Meier v Dorzan Pty Ltd ... Slattery J considered the test was met on the basis that the plaintiff had structured the orders she sought pursuant to the equivalent provision in the Trustee Act 1925 (NSW) and had made arrangements for that conveyance.
[citation omitted]
I have no doubt that it would be significantly more convenient simply to appoint Ms Yule to execute documents which would otherwise have to be executed by Campbell in order to comply with the requirements of the Real Property Act, pursuant to any power available under section 40 of the Trustee Act. However, I have two concerns in this respect.
[73] [2014] SASC 146.
[74] At [10] and [12].
The first is that there still remains the a priori requirement that the Court must be satisfied a vesting order could be made pursuant to the Trustee Act. Section 37 of the Trustee Act provides as follows:
37—Vesting order as to land
(1)In any of the following cases, namely:
(a)     where the Supreme Court appoints or has appointed a trustee or where a trustee has been appointed out of court under any statutory or express power; and
(b)     where a trustee entitled to or possessed of any land, or entitled to a contingent right therein, either solely or jointly with any other person—
(i)is a lunatic or person of unsound mind; or
(ii)is an infant; or
(iii)is out of the jurisdiction of the Supreme Court; or
(iv)cannot be found; and
(c)     where it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any land or entitled to a contingent right therein; and
(d)     where it is uncertain whether the last trustee known to have been entitled to or possessed of any land, or entitled to a contingent right therein, is living or dead; and
(e)     where there is no personal representative of a deceased trustee who was entitled to or possessed of land or entitled to a contingent right therein, or where it is uncertain who is the personal representative or devisee of a trustee who was entitled to or possessed of land or entitled to a contingent right therein; and
(f)     where a trustee jointly or solely entitled to or possessed of any land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or a release of the right, to convey the land or to release the right, and has wilfully refused or neglected to convey the land or release the right for twenty-eight days after the date of the requirement,
the Supreme Court may make an order (in this Act called a vesting order) vesting the land in any such person in any such manner and for any such estate as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.
(2)However—
(a)     where the order is consequential on the appointment of a new trustee the land shall be vested for such estate as the court may direct in the persons who on the appointment are the trustees; and
(b)     where the order relates to a trustee entitled jointly with another person, and that trustee is out of the jurisdiction of the Supreme Court or cannot be found, the land or right shall be vested in that other person, either alone or with some other person.

The proponent executors seek to rely on section 37(1)(b)(iii) as providing a proper basis for the making of a vesting order. That this was the case at the time I reserved judgment, so as to permit such an order to be made, is apparent from the evidence before me. Campbell’s notice of acting in person records an address in Dubai UAE as his address for service, his affidavit evidence, submissions and dealings with my chambers are replete with references to his having been resident overseas for some years and his having no desire to return to Australia. As earlier indicated, it has been common ground between the parties to this action that Campbell permanently resides overseas and not in Australia. In these circumstances, the fact that Campbell might visit this country on occasion for business or other reasons would not ordinarily prevent me from finding that he “is out of the jurisdiction of the Supreme Court” for the purpose of section 37(1)(b)(iii).
However, it has come to my attention that on 23 June 2016, a sequestration order was made against the estate of Campbell by the Federal Circuit Court[75] and that Campbell may now be an undischarged bankrupt. Campbell failed to appear at that hearing because he was either in Sri Lanka, Dubai or somewhere in between, according to correspondence received by the Federal Circuit Court. However, it may be the case, according to email correspondence from Mrs Fiona Irwin, that Campbell came to Australia some time after the sequestration order was made and may not yet have returned to Dubai. Strictly, none of this is in evidence before me. However, given Campbell’s unrepresented status and the potential relevance of section 37(1)(b)(iii) I have thought it best to raise this matter with the parties and invite further submissions as to the present applicability of section 37(1)(b)(iii).
[75] Irwin v Irwin [2016] FCCA 1767.
I note that there is also power to make a vesting order in the circumstances set out in section 37(1)(f). I have already indicated my view that the 2008 Agreement ought to be implemented in full, essentially in accordance with the procedures proposed by the proponent executors in James’ Minutes of Order. The problem lies with identifying the appropriate machinery provisions necessary to achieve this. In these circumstances, I invite further submissions as to whether appropriate declaratory relief might be given or other orders made so as to assist all or any of the proponent executors to satisfy the requirement in section 37(1)(f).
Another concern which arises as a result of the sequestration order having been made against Campbell’s estate is whether the answer “Yes” to question 1(j) in the proposed Minutes of Order is still appropriate. I would be assisted with further submissions on this issue.
Finally, I have a concern arising from the terms of section 40 of the Trustee Act. Assuming this is a case where a vesting order can be made, section 40 will permit a person, in lieu of Campbell, “to convey the land or release the contingent right” (my emphasis). The various registrable instruments to be signed on behalf of Campbell according to FDN 40 and the proposed Minutes of Order include instruments which he is to execute:
(i)in his capacity as executor/transferee (the Bonshaw land to be transferred by the liquidator; Bonshaw’s half-interest in Glenelg to be transferred by the liquidator and the transmission application of the deceased’s half-interest in Glenelg)
(ii)in his capacity as beneficiary/transferee (the two half shares in Glenelg to be transferred by the executors to the three siblings, including Campbell, as ultimate beneficial owners (subject to the life estate issue).
I would be assisted by further submissions as to whether section 40 empowers an order for someone else to sign such instruments in these (transferee) capacities or whether such power might, necessarily, be contingent on the power conferred by section 40 or provided for elsewhere.
I invite the parties to provide further submissions on these matters. I also invite counsel for James to provide amended Minutes of Order, insofar as instructed to do so, which conform to these reasons and any further submissions counsel may be instructed to make.
Ms Yule’s application for advice and direction (FDN 27)
By her interlocutory application, FDN 27, Ms Yule seeks the following order or direction.
That the Executors be directed to pay the legal fees of the Executor, Melissa May Yule, from the funds held in the estate of James Campbell Irwin deceased.
In her second affidavit, FDN 26, Ms Yule provided particulars of the legal fees in issue. She deposed to having incurred legal fees solely in her capacity as one of the executors and trustees of the estate due and payable to two firms of solicitors, Treloar & Treloar in the amount of $40,647.00 (inclusive of GST) and Lynch Meyer in the amount of $116,043.99 (inclusive of GST). Exhibited to the affidavit are itemised accounts for each firm for the respective total amounts claimed. There is no challenge to the fact that accounts for these respective total amounts have been rendered for work performed by both Treloar & Treloar and Lynch Meyer during various periods between 2009 and January 2014.
As at the time of bringing her interlocutory application, FDN 27, Ms Yule was practising as a consultant legal practitioner at Adelta Legal. According to Ms Yule’s third affidavit, FDN 32:
(i)After the death of the deceased, the executors named in the will engaged the services of the firm of solicitors, Piper Alderman, at which firm Ms Yule worked as an employed solicitor. Certain terms of engagement, as recorded in a letter from the firm, were agreed to by the executors. Accounts were rendered regularly and over time increased rates were applied although no further letter of engagement was provided. All accounts were unanimously agreed to by the executors and paid.
(ii) In October 2008, Ms Yule moved to the firm of Lynch Meyer. She continued to perform her duties as an executor from her new position at Lynch Meyer. On 5 November 2009, Campbell instituted the proceedings in matter No. 1677 of 2009. Ms Yule did not send any further letter of engagement but continued to perform her duties as an executor as required. She did not render any accounts whilst at Lynch Meyer.
(iii)In action No. 1677 of 2009, Ms Yule was sued in two capacities. The law firm, Gilchrist Connell, on the instructions of law claims, acted for Piper Alderman and Ms Yule as the solicitors for the estate. Treloar & Treloar acted for Ms Yule in her capacity as an executor. Treloar & Treloar did not provide a retainer agreement because that firm only charged fees in accordance with the Supreme Court scale. Exhibited to Ms Yule’s third affidavit is a letter dated 2 March 2015 from Mr Ray Frost on behalf of Treloar & Treloar stating:
Thank you for your email dated 27^th February 2015. We confirm that you did not have a retainer agreement with us as we charge on the Supreme Court scale.
(iv)In time, action No. 149 of 2013 was commenced by James Irwin and Ann Irwin in order to have Bonshaw wound up. Again, Ms Yule was named as a defendant on the basis that she was the director of the company and an executor of the estate, the main shareholder in the company. This was an application for the company to be wound up on the just and equitable basis. As a consequence, Ms Yule engaged the services of Lynch Meyer to represent her in all capacities in that litigation.
(v)In preparing the Lynch Meyer accounts, it became apparent to Ms Yule that some items shown in the transaction list did not relate solely to her function as an executor but related to attendances concerning her instructions given to the lawyers engaged by law claims. Accordingly, Ms Yule arranged to deduct $19,703.80 from the total of the Lynch Meyer accounts. Ms Yule did not have authority to discount accounts at Lynch Meyer. However, her recommendation that the account be reduced by $19.703.80 has been accepted by the partnership.
The amount of $116,043.99 said to be due and payable to Lynch Meyer, as particularised in Ms Yule’s second affidavit, is the figure initially claimed after allowance was made for the discount of $19,703.80 referred to in (v) above.
Neither James nor Angus has any objection, either as to liability or as to quantum, with respect to the fees incurred by Treloar & Treloar. There is no suggestion that the work was not done on behalf of the estate or that fees for the work were not properly raised. Given that the fees were charged on the Supreme Court scale rates, there is no objection to quantum.
Similarly, neither James nor Angus raise any issue with respect to whether or not the work identified in the fee notes was, in fact, performed by Lynch Meyer on behalf of the estate nor is it challenged that Lynch Meyer is entitled to charge for that work. However, and initially, in the absence of a retainer agreement and given that the fees were not necessarily charged on the Supreme Court scale, both James and Angus raised a concern as to the proper quantum for those fees. The accounts payable by Lynch Meyer itemised the fees charged and the services rendered in quite some detail. There is no doubt that substantial work was performed on behalf of the estate as itemised in the relevant invoices.
Following the hearing on 27 August 2015, Ms Yule, James and Angus engaged in discussions concerning Ms Yule’s application for the costs with respect to Treloar & Treloar and Lynch Meyer to be paid out of the estate assets. An agreement was reached to compromise the claim.
As between Ms Yule and James and Angus, it has been agreed that Ms Yule is entitled to be indemnified from the estate:
(i) for her liability to Treloar & Treloar in full in the sum of $40,647.00; and
(ii)her liability to Lynch Meyer in the sum of $95,521.99.
Ms Yule has advised the Court that Lynch Meyer has agreed to accept the sum of $95,521.99 in full and final satisfaction of the two invoices raised which total $116,043.99 and which comprised exhibit MMY2 to Ms Yule’s second affidavit, FDN 26.
In correspondence received from the solicitors for Angus and copied to all other parties including Campbell, the Court was advised in the following terms:
It is therefore the joint application of the plaintiff [Ms Yule], the first defendant [James] and the second defendant [Angus] that (subject to any further submissions which might be received from the third defendant) his Honour make an order on Ms Yule’s application that the executors of the estate cause payment to be made by the estate of Ms Yule’s legal fees in the total sum of $135,869.99 to be apportioned:
1.as to the sum of $40,647.00 to Treloar & Treloar
2.as to the sum of $95,521.99 to Lynch Meyer
The two component sums, in fact, total $136,168.99. I infer that the identified total of $135, 869.99 is a typographical error and that the agreement is to pay the (slightly) larger total sum. I will hear from the parties on this, insofar as is necessary.
The compromise of the Lynch Meyer fees represents a discount of approximately 18 per cent. On my review of the detailed accounts rendered by Lynch Meyer and the affidavit evidence provided by Ms Yule in support of her application, I am satisfied that the compromise arrived at by the proponent executors is appropriate.
Campbell objects to the estate meeting any of the legal fees rendered by Treloar & Treloar and Lynch Meyer. He has provided no proper justification for his objection. In correspondence with Ms Yule (exhibited to Ms Yule’s second affidavit) he has raised a number of the complaints that he raises generally about the management of the estate, including, various unsupported assertions of bad faith and dishonesty by the executors. He concluded by asserting “I am not going to sanction any payments for services covering up tax evasion actions or minimising the value of assets of this estate”. As I say, I am not satisfied that Campbell has provided any proper reason as to why the estate should not meet its obligations to the third party providers of legal services.
Having said that, I am not persuaded that it is appropriate that I make an order directing the executors to make payment. I am prepared to give advice and directions pursuant to section 69 of the Administration and Probate Act 1919 that the payments agreed to by the proponent executors are justified and within the power of the executors to make. The payment of an estate debt from funds available to the estate is an executorial function. As a consequence, any one or more of the executors may make the payment and in so doing bind the executors to that transaction. In so far as is necessary, I will grant declaratory relief pursuant to section 69 to the effect that the executors or any one of them would be justified in making the payments for the legal services rendered by Treloar & Treloar and Lynch Meyer.
The plaintiff (Ms Yule) is to provide draft minutes of order consistent with the reasons I have given with respect to her application.
Conclusion
1.Campbell’s second application that I recuse myself from any further involvement in this matter, FDN 65, is dismissed.
2.Apart from some minor aspects relating to costs, Campbell’s three interlocutory applications, FDN 45, FDN 52, and FDN 55 are an abuse of process and are dismissed.
3.The minor aspects of Campbell’s interlocutory applications relating to costs, as identified in paragraphs [112], [115] and [117] are stood over for further consideration.
4.Ms Yule’s application is allowed. The executors or any one of them would be justified in meeting and it would be within their power to meet out of estate assets the Treloar & Treloar account in the amount of $40,647.00 and the Lynch Meyer account in the amount of $95,521.99.
5.As far as James’ application is concerned, I am satisfied that those parts of the 2008 Agreement not yet implemented should be implemented. However, before making final orders in the terms set out in the proposed Minutes of Order provided by James and as presently relied on, I would need to hear further submissions on the matters identified at paragraphs [198] to [204].
6.Angus and Ms Yule are to provide draft minutes of orders dealing with the matters referred to in paragraphs [120] and [217] respectively and consistent with these reasons.
7.In due course, James is to provide amended draft minutes of order with reference to his application, FDN 40, which conform to these reasons and any further submissions made with respect to the matters identified at paragraphs [198] to [204].