Yule v Irwin (No 3) - [2017] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
YULE v IRWIN & ORS (No 3)
[2017] SASC 34
Reasons of The Honourable Justice Nicholson
20 March 2017
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
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY
In the principal reasons, Yule v Irwin & Ors (No 2) [2016] SASC 178, various findings were made and indications as to the proper resolution of a number of applications for advice and direction brought pursuant to section 69 of the Administration and Probate Act 1919 (SA) by each of the executors of the estate of James Campbell Irwin (deceased) were given.
In the course of the principal reasons, a number of issues with respect to which further submissions were requested were identified. In addition, questions of costs were reserved for further consideration.
After hearing further from the parties final orders, including with respect to costs, were made on 13 December 2016 and 28 February 2017.
Held: as per orders 1 to 7 as set out in paragraph [5] (made on 13 December 2016) and orders 1 to 24 made as set out in paragraph [6] (made on 28 February 2017).
Administration and Probate Act 1919 (SA) s 69; Trustee Act 1936 (SA) s 37; Real Property Act (SA); Real Property (Electronic Conveyancing) Amendment Act 2016 (SA); Electronic Conveyancing National Law (South Australia Act 2013 (SA); Supreme Court Act (SA) s 40; Supreme Court Civil Rules 2006 r 263; Bankruptcy Act 1966 (SA) s 58, referred to.
Yule v Irwin & Ors (No 2) [2016] SASC 178; Blatch v Archer (1774) 1 Cowp 63, (1774) 98 ER 969; John Russell & Co Ltd v Cayzer Irvine & Co Ltd [1916] 2 AC 298; Laurie v Carroll (1958) 98 CLR 310; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, considered.

YULE v IRWIN & ORS (No 3)
[2017] SASC 34
Civil
NICHOLSON J.
Introduction

In my principal reasons[1] in this long running matter, I made various findings and indicated how a number of applications for advice and direction brought pursuant to section 69 of the Administration and Probate Act 1919 (SA) by each of the executors of the estate of James Campbell Irwin (deceased) were to be resolved. Applications were prosecuted by the plaintiff (Melissa Yule), by the first defendant (James Irwin), by the second defendant (Angus Irwin) and by the third defendant (Campbell Irwin). The history of the proceedings, the nature of the applications dealt with and the means by which each such application is to be resolved can be understood from a reading of those principal reasons.
[1] Yule v Irwin & Ors (No 2) [2016] SASC 178.
The primary substantive application was that brought by James[2] (FDN 40) which sought answers to a detailed series of questions and consequential directions in an attempt to finalise, at least in large part, the administration of the estate of the father of James, Angus and Campbell who died in 2005.
[2] As in the principal reasons it is convenient to continue to refer to the three brothers by their given names without meaning any disrespect or undue familiarity.
In the course of my principal reasons, I isolated a number of issues about which I required to hear further submissions necessary to enable me to consider the proper form of orders that might be made in this matter. In addition, questions of costs were reserved for further consideration. I made directions permitting each of the parties, including the self-represented Campbell (who has maintained staunch opposition to the orders sought by the other parties) and his trustee in bankruptcy, to make written and/or oral submissions on all outstanding issues. This process involved both James and Angus providing a number of versions of proposed minutes of order drawn in such a manner as to be consistent with my principal reasons for judgment and to take account of the identified matters upon which I had asked for further submissions. These reasons deal with the additional matters about which I heard further submissions, prior to being in a position to make final orders, together with questions of costs.
Submissions from all parties (and from the interested non-party trustee in bankruptcy) other than Campbell were heard on 13 December 2016. At the conclusion of that hearing, I made a finalising order with respect to Ms Yule’s interlocutory application (FDN 27). I adjourned the hearing of the remaining outstanding matters and made various directions intended, inter alia, to enable Campbell to receive notice of all outstanding matters still to be resolved and of the submissions put to this point by the other parties, and so as to provide Campbell an opportunity to be heard on all such matters.[3] I heard further submissions from all parties, including Campbell who appeared in person, on 28 February 2017 following which I made further orders in an endeavour to finalise the matters before me. The submissions made by Campbell were essentially a repetition of matters he has previously put in the context of my consideration of the matters dealt with in the principal reasons. His submissions were not directed to and were of no assistance with respect to the particular issues that still needed to be dealt with as set out below.
[3] Campbell was provided with all orders and directions made to this point, the draft minutes of order in the process of being addressed and not yet made, the transcript of submissions and the written submissions provided by the other parties.
On 13 December 2016, I made the following directions for the further conduct of the proceedings and finalising order with respect to Ms Yule’s application (order number 6).
1.The Court shall provide a copy of the transcript of today's hearing, together with a copy of the minutes of order proposed by the plaintiff, the first defendant and the second defendant to the third defendant by way of the email address [email protected] on or before Friday 16 December 2016.
2.The plaintiff, the first defendant and the second defendant shall file and serve an outline of submissions in relation to all outstanding costs matters on or before 13 January 2017.
3.The joint and several trustees of the bankrupt estate of the third defendant, if so advised, shall file and serve any outline of submissions in respect of paragraph 7 of the second defendant's minutes of order and paragraph 17 of the first defendant's minutes of order on or before 20 January 2017.
4.The third defendant, if so advised, shall file and serve any written submissions in relation to all costs matters raised by the submissions filed in accordance with order 2, together with all other issues raised in today's hearing on or before 3 February 2017.
5.The matter is adjourned for further consideration and if possible, the making of final orders to Friday 10 February 2017 at 2.15pm.
6.The executors of the Estate of James Campbell Irwin deceased or any one of them would be justified in meeting and it would be within their power to meet out of estate assets:
6.1 the accounts of Treloar & Treloar in the total amount of $40,647.00; and
6.2 the accounts of Lynch Meyer in the total amount of $95,521.99.
7.Liberty to apply.
On 28 February 2017, I made the following orders dealing with James’ application and the various applications brought by Angus and Campbell.
UPON the first defendant and the second defendant undertaking to the Court that upon transfer to them by Bonshaw Pty Ltd (in liquidation)(ACN 007 587 760) of the interest of Bonshaw Pty Ltd (in liquidation) in the land now contained in Certificate of Title Register Book Volume 6130 Folio 308 (‘the Glenelg residence’) the first defendant and the second defendant will thereupon grant to Ann Irwin the same rights in respect of the Glenelg residence now held by Ann Irwin pursuant to a written Licence dated 10 October 2005 made between Bonshaw Pty Ltd as Licensor and Ann Irwin as Licensee THE COURT ORDERS AND DECLARES that:
1.Upon the application by the first defendant pursuant to section 69 of the Administration and Probate Act 1919 (SA) for the advice and directions of the Court in relation to 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)     In relation to the question in paragraphs 1(a)(i) of the application namely: ‘Whether the plaintiffs and the defendant as the executors of the estate of the deceased (‘the Executors’):
(i)would be justified in requesting and should request the liquidator of Bonshaw Pty Ltd (in liquidation) (ACN 007 587 760) (‘Bonshaw’) to pay by dividend or to make in specie distribution to the Executors of all of the assets on Bonshaw remaining after payment by the Executors to the liquidator or receipt by the liquidator of:
(1)the remuneration of the liquidator determined in accordance with the Corporations Act 2001;
(2)any other costs and expenses of the liquidator of the liquidation of Bonshaw; and
(3)any monies owed to creditors of Bonshaw or as may be required to discharge other liabilities of Bonshaw,
(collectively ‘the Liquidation Payments’)
answers the question ‘Yes’.
(b)     In relation to the question in paragraph 1(a)(ii) of the application namely: ‘Whether the Executors should pay to the liquidator of Bonshaw the Liquidation Payments?’
answers the question ‘Yes’.
(c)     In relation to the questions in paragraphs 1(a)(iii) of the application namely: ‘Whether the Executors would be justified in requesting and should request, or should vote the shares held by the Executors in Bonshaw and require Ann Irwin to vote the share held by her in Bonshaw in favour of any resolution requesting, the liquidator of Bonshaw to forgive or release from payment any monies owing to Bonshaw by:
(1)Balah Nominees Pty Ltd (ACN 008 095 181);
(2)Janet Newenham Ingham; and
(3)The defendants or entities associated with the defendants.’
answers each question ‘Yes’.
(d)     In relation to the question in paragraph 1(b)(i) of the application namely: ‘Would the Liquidation Payments be testamentary expenses for the purposes of clause 7 of the will of the deceased?’
answers the question ‘Yes’.
(e)     In relation to the question in paragraph 1(b)(ii) of the application namely: ‘If the monies held by the Executors as executors of the estate of the deceased are insufficient to pay the Liquidation Payments in full, are the Executors empowered to request, and would the Executors be justified in requesting, each of the persons having an interest in the residuary estate of the deceased under clause 7 of the will, namely James Alexander Irwin, Angus William Irwin and Campbell Creaghe Irwin, or any one or more of the beneficiaries, to advance by way of loan to the Executors the sums which the Executors, or alternatively the majority of the Executors, consider should be raised by way of loan in order to make the Liquidation Payments?’
answers the question ‘Yes’.
(f)    In relation to the question in paragraph 1(c) of the application namely: ‘Whether the Executors should require Ann Irwin as the holder of one share in Bonshaw, which by written declaration of trust dated 3 December 1991 she declared she held on trust for the deceased, to transfer to the Executors that share?’
answers the question ‘Yes’.
(g)     In relation to the questions in paragraph 1(d) of the application namely: ‘Whether the Executors are empowered by clause 10.4 of the will, or by general law, and would be justified in appropriating to James Alexander Irwin in partial satisfaction of his equal one third share in the residuary estate of the deceased:
(i)the farm equipment and livestock of the deceased located at the rural properties known as ‘Bonshaw’ and ‘Kostera’ and forming part of the estate of the deceased; and
(ii)at the valuation for such farm equipment and livestock as stated in a report from Ernst & Young to the Executors dated 1 May 2008.’
answers each question ‘Yes’.
(h)     In relation to the questions in paragraph 1(e) of the application namely: ‘Whether the Executors upon transfer to the Executors by payment of dividend or in specie distribution from the liquidator of Bonshaw of the same:
(i)are empowered by clause 10.4 of the will, or by general law, and would be justified in appropriating to James Alexander Irwin in partial satisfaction of his equal one third share in the residuary estate of the deceased, 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 1,620.33 hectares of farming land being Sections 543, 552, 553 and 554 Hundred of Wirrega in the area named Carew )(‘the Bonshaw Land’);
(ii)If ‘Yes’ to question (i), whether the Executors are justified in appropriating the Bonshaw Land to James Alexander Irwin at the valuation of $1,837,500.’
answers each question ‘Yes’.
(i)    In relation to the questions in paragraph 1(f) of the application namely: ‘Whether in determining the value, payment and appropriation of assets of the deceased in satisfaction of the equal one third share in the residuary estate of the deceased under clause 7 of the will of Campbell Creaghe Irwin the Executors are justified in doing and should:
(i)Deduct from or set off against such entitlement of Campbell Creaghe Irwin any sums of money payable by Campbell Creaghe Irwin to James Alexander Irwin or Angus William Irwin pursuant to orders for costs made against Campbell Creaghe Irwin in:
(1)These proceedings;
(2)Action no. 1677 of 2009 in the Court; and
(3)Action no. 149 of 2013 in the Court.
(ii)Deduct from such entitlement of Campbell Creaghe Irwin and pay instead to Melissa May Yule, or to such solicitors as were instructed by Melissa May Yule, any sums of money payable by Campbell Creaghe Irwin to Melissa May Yule pursuant to orders for costs made against Campbell Creaghe Irwin in:
(1)These proceedings;
(2)Action no. 1677 of 2009 in the Court; and
(3)Action no. 149 of 2013 in the Court.’
answers each question ‘No, save in respect of costs ordered against Campbell Creaghe Irwin in these proceedings after 23 June 2016, as a sequestration order was made under the Bankruptcy Act 1966 (Cth) in relation to Campbell Creaghe Irwin on 23 June 2016’.
2.That Campbell Creaghe Irwin is required, in his capacity as an executor or trustee of the estate of the deceased, to execute each of the instruments for the purposes of the Real Property Act 1886 (SA) in respect of which Campbell Creaghe Irwin is a party as executor or trustee referred to in paragraphs 3 to 15 of these orders.
3.Pursuant to section 40 of the Trustee Act 1936 (SA), the plaintiff Melissa May Yule be appointed to authorise, pursuant to Part 20A of the Real Property Act 1886 (SA), the execution of all instruments for the purposes of the Real Property Act 1886 (SA) required to transfer from Bonshaw Pty Ltd (in liquidation)(ACN 007 587 760) to the plaintiff and defendants as transferees of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5506 Folio 644 in fee simple that would otherwise require the authorisation of the third defendant Campbell Creaghe Irwin and that the plaintiff Melissa May Yule be appointed on behalf of the third defendant to take all other steps required to transfer and convey the said estate in fee simple to the plaintiff and the defendants in their capacity as the executors of the estate of James Campbell Irwin deceased.
4.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of Bonshaw Pty Ltd (in liquidation)(ACN 007 587 760) as transferor to the plaintiff and defendants as transferees in their capacity as executors of the estate of James Campbell Irwin deceased of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5506 Folio 644 and executed on behalf of the third defendant Campbell Creaghe Irwin as transferee which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders and executed upon the authorisation of the plaintiff and the first defendant and second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 (SA) to register the transfer on the certificate of title for the said land.
5.Pursuant to section 40 of the Trustee Act 1936 (SA), upon the plaintiff and the defendants becoming the registered proprietors under the Real Property Act 1886 of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5506 Folio 644 in their capacity as executors of the estate of James Campbell Irwin deceased , the plaintiff Melissa May Yule be appointed to authorise execution, pursuant to Part 20A of the Real Property Act 1886 (SA) of all instruments requiring the authorisation of the third defendant Campbell Creaghe Irwin for the purposes of the Real Property Act 1886 (SA) a transfer in registrable form from the third defendant as transferor to James Alexander Irwin as transferee of an estate in fee simple in the whole of the said land and the plaintiff Melissa May Yule be appointed to take all other steps which would normally be required by the third defendant Campbell Creaghe Irwin to transfer and convey the said estate in fee simple to James Alexander Irwin.
6.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of the third defendant Campbell Creaghe Irwin of which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders as transferor to James Alexander Irwin as transferee of an estate in fee simple in the whole of the land comprised in Certificate of Title Register Book Volume 5506 Folio 644 and executed upon the authorisation of the plaintiff and the first defendant and the second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the memorandum of transfer on the certificate of title for the said land.
7.Pursuant to section 40 of the Trustee Act 1936 (SA), the plaintiff Melissa May Yule be appointed to authorise, pursuant to Part 20A of the Real Property Act 1886 (SA), the execution of all instruments for the purposes of the Real Property Act 1886 (SA) required to transfer from Bonshaw Pty Ltd (in liquidation)(ACN 007 587 760) to the plaintiff and defendants as transferees of an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 situate at Unit 23, 1 South Esplanade, Glenelg in South Australia that would otherwise require the authorisation of the third defendant Campbell Creaghe Irwin and that the plaintiff Melissa May Yule be appointed on behalf of the third defendant to take all other steps required to transfer and convey the said estate in fee simple to the plaintiff and the defendants in their capacity as executors of the estate of James Campbell Irwin deceased.
8.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of Bonshaw Pty Ltd (in liquidation)(ACN 007 587 760) as transferor to the plaintiff and defendants as transferees in their capacity as executors of the estate of James Campbell Irwin deceased of an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 and executed on behalf of the third defendant Campbell Creaghe Irwin as transferee of which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders and executed upon the authorisation of the plaintiff and the first defendant and second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the memorandum of transfer on the certificate of title for the said land.
9.Pursuant to section 40 of the Trustee Act 1936 (SA), upon the plaintiff and the defendants becoming the registered proprietors under the Real Property Act 1886 of an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 in their capacity as executors of the estate of James Campbell Irwin deceased, the plaintiff Melissa May Yule be appointed to authorise pursuant to Part 20A of the Real Property Act 1886 (SA) the execution of all instruments required to transfer from the third defendant as transferor to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin as transferees as tenants in common in equal shares of an estate in fee simple in one undivided second part of the said land, that would otherwise require the authorisation of the third defendant and the plaintiff Melissa May Yule be appointed on behalf of the third defendant and to take all other steps required to transfer and convey the said estate in fee simple in one undivided second part of the said land to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin.
10.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of the third defendant Campbell Creaghe Irwin of which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders as transferor to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin as transferees as tenants in common in equal shares of an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 and executed upon the authorisation of the plaintiff and the first defendant and the second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the memorandum of transfer on the certificate of title for the said land.
11.Pursuant to section 40 of the Trustee Act 1936 (SA) the plaintiff Melissa May Yule be appointed to authorise pursuant to Part 20A of the Real Property Act 1886 (SA) the execution of an instrument in registrable form being a transmission application under section 176 of the Real Property Act 1886 in respect of the interest of James Campbell Irwin deceased in an estate in fee simple in one undivided second part of the whole of the land contained in Certificate of Title Register Book Volume 6130 Folio 308 which would otherwise require the authorisation of the third defendant and all other instruments on behalf of the third defendant and take all other steps required to transmit the said interest of the deceased into the names of Melissa May Yule, James Alexander Irwin, Angus William Irwin and Campbell Creaghe Irwin as registered proprietors of the said land in their capacity as the executors of the estate of James Campbell Irwin deceased.
12.Upon lodgement of a transmission application in registrable form under the Real Property Act 1886 (SA) executed on behalf of the third defendant Campbell Creaghe Irwin of which execution has been authorised by the plaintiff Melissa May Yule in accordance with these orders in relation to an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 of James Campbell Irwin deceased and executed upon the authorisation of the plaintiff and the first defendant and the second defendant together with lodgement of the probate and any other instruments required to effect the registration of transmission of the said interest of the deceased and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the transmission application on the certificate of title for the said land.
13.Pursuant to section 40 of the Trustee Act 1936 (SA) upon the plaintiff and the defendants becoming the registered proprietors under the Real Property Act 1886 (SA) of an estate in fee simple in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 in their capacity as executors of the estate of James Campbell Irwin deceased by virtue of registration of the said transmission application referred to in these orders:
(a) the plaintiff Melissa May Yule be appointed to authorise execution, pursuant to Part 20A of the Real Property Act 1886 (SA) of all instruments requiring the authorisation a transfer in registrable form as transferor to Ann Irwin as transferee of an estate in fee simple for life in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 that would otherwise require the authorisation of the third defendant and that the plaintiff Melissa May Yule be appointed on behalf of the third defendant to authorise the execution of all other instruments on behalf of the third defendant and take all other steps required to transfer and convey the said estate in fee simple for life to Ann Irwin.
(b) the plaintiff Melissa May Yule be appointed to authorise execution, pursuant to Part 20A of the Real Property Act 1886 (SA) on behalf of the third defendant Campbell Creaghe Irwin for the purposes of the Real Property Act 1886 (SA) a memorandum of transfer in registrable form as transferor to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin as transferees as tenants in common in equal shares of that estate in fee simple in remainder in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308, that would otherwise require the authorisation of the third defendant and that the plaintiff Melissa May Yule be appointed on behalf of the third defendant to authorise the execution of all other instruments on behalf of the third defendant and take all other steps required to transfer and convey the said estate in fee simple in remainder to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin.
14.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of the third defendant Campbell Creaghe Irwin of which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders as transferor to Ann Irwin as transferee of an estate in fee simple for life in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 (being that interest in the said land of James Campbell Irwin deceased transmitted to and held by the plaintiff and defendants as executors of the estate of the deceased) and executed upon the authorisation of the plaintiff and the first defendant and the second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple for life and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the memorandum of transfer on the certificate of title for the said land.
15.Upon lodgement of a transfer in registrable form under the Real Property Act 1886 (SA) executed on behalf of the third defendant Campbell Creaghe Irwin of which execution is authorised by the plaintiff Melissa May Yule in accordance with these orders as transferor to James Alexander Irwin and Angus William Irwin and Robert William Naudi and Stuart George Reid as joint and several trustees in bankruptcy of the bankrupt estate of Campbell Creaghe Irwin as transferees of an estate in fee simple in remainder in one undivided second part of the whole of the land comprised in Certificate of Title Register Book Volume 6130 Folio 308 (being that interest in the said land of James Campbell Irwin deceased transmitted to and held by the plaintiff and defendants as executors of the estate of the deceased) and executed upon the authorisation of the plaintiff and the first defendant and the second defendant together with lodgement of any other instruments required to effect the transfer of the said estate in fee simple in remainder and the payment of all necessary fees, the Registrar-General is directed pursuant to section 64 of the Real Property Act 1886 to register the memorandum of transfer on the certificate of title for the said land.
16.The third defendant pay the costs of the application of the plaintiff, first defendant and second defendant on a solicitor-own client basis.
17.The plaintiff, first defendant and second defendant in their capacity as executors of the estate of James Campbell Irwin deceased be at liberty, without the consent of the third defendant, to indemnify themselves out of the third defendant’s share of the residuary estate in relation to the costs payable by the third defendant in paragraph 16 above.
THE COURT FURTHER ORDERS:
18.The third defendant's Second Interlocutory Application filed 30 November 2015 (FDN 45) be dismissed.
19.As to the third defendant's Third Interlocutory Application filed on 17 December 2015 (FDN 52):
19.1   Paragraph 1(a) in so far as it concerns the costs of the Interlocutory Application brought by the plaintiff (FDN 27) be adjourned to a date to be fixed.
19.2 The Court notes that paragraph 1(b) is stayed pursuant to subsection 60(2) of the Bankruptcy Act 1966 (Cth).
19.3   Paragraph 1(d) in so far as it considers the costs of the Interlocutory Application brought by the first defendant (FDN 40) be adjourned to a date to be fixed.
19.4   The remaining paragraphs be dismissed.
20.The third defendant's Fourth Interlocutory Application filed on 4 January 2016 (FDN 55) be dismissed.
21.The third defendant's Interlocutory Application dated 26 February 2016 (FDN 65), being the third defendant's further application that the Honourable Justice Nicholson recuse himself from the further conduct of this proceeding, be dismissed.
22.The third defendant pay the second defendant's costs of and incidental to:
22.1   the second defendant's Interlocutory Application filed 11 December 2015;
22.2   the second defendant's Amended Interlocutory Application filed 23 December 2015; and
22.3   the second defendant's Second Interlocutory Application filed 17 February 2016.
23.The third defendant pay the other parties’ costs of and incidental to the third defendant's Second Interlocutory Application filed 30 November 2015 (FDN 45), Third Interlocutory Application filed on 17 December 2015 (FDN 52), Fourth Interlocutory Application filed on 4 January 2016 (FDN 55) and Interlocutory Application dated 26 February 2016 (FDN 65).
24.The plaintiff, the first defendant and the second defendant be at liberty, without the consent of the third defendant, to indemnify themselves out of the third defendant’s share of the residuary estate in relation to the sums payable in paragraphs 22 and 23 above.
Outstanding matters on which further submissions were heard

For a fuller understanding, the following discussion should be read in conjunction with the principal reasons earlier referred to.
Whether the jurisdiction to make a vesting order pursuant to section 37 of the Trustee Act 1936 is enlivened
This issue is raised in the principal reasons at [198]-[202]. Section 37 empowers the Supreme Court to make a, so called, vesting order in various circumstances including where the person concerned “is out of the jurisdiction of the Supreme Court” or “cannot be found”.[4]
[4] Section 37(1)(b)(iii) and (iv).
It was common ground at the hearing of James’ application (FDN 40) and supported by the evidence available, that Campbell was, and had been for a number of years, resident in the United Arab Emirates and, as such, was “out of the jurisdiction of the Supreme Court [of South Australia]”. However, during the period in which judgment was reserved it came to my attention that Campbell had become an undischarged bankrupt and that, as a consequence, and following a visit to Australia, he may have been prevented from leaving Australia and returning to his residence in the United Arab Emirates.
Subsequent assertions contained in emails sent by Campbell directly to my chambers email address and sent to other parties but copied to my chambers and also provided orally by Campbell during his submissions on 28 February 2017, were to the effect that Campbell has had to remain somewhere in Australia as a consequence of the bankruptcy proceedings, for some time now and against his will. It is not possible to make a finding as to where Campbell is physically located or whether or not he has remained at the same location. However, such information as is available suggests that if he is somewhere in Australia he is outside the state of South Australia. Further, in his email correspondence, Campbell has repeatedly asserted the following.
As you are aware I am not a resident of Australia and have no Australian address. I am served by email in both Supreme and Federals Courts and whilst [the trustees in bankruptcy] and others have my mobile number I repeat it here also ... .
However email is preferred as has been the standard method of contacting me throughout these matters.
James’ written “further submissions”, provided to the Court on 13 December 2016 and made available to Campbell, contain the following.
James [the first defendant] accepts that Campbell [the third defendant] may well be present in Australia at the moment. Whether he is present in South Australia is unknown. There is presently no evidence before the Court which would allow the Court to find that Campbell is within the territorial jurisdiction of the Supreme Court of South Australia. If Campbell is to contest this point, he should adduce evidence as to his whereabouts.
I accept this submission both as to matters of fact and of law. Further, I accept James’ supplementary submission to the effect that any evidence on this point is to be weighed according to the principle that it is in the power of Campbell to adduce evidence as to his whereabouts whereas the other parties to the matter and Angus in particular are not in that position.[5]
[5] Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969.
The question of whether a person is within the jurisdiction of the Supreme Court of South Australia will turn on whether the person is amenable to the Court’s initiating process.[6] In Laurie v Carroll,[7] the High Court (Dixon CJ, Williams and Webb JJ) observed.
The defendant must be amenable or answerable to the command of the writ. His amenability depended and still primarily depends on nothing but presence within the jurisdiction.
[6] Mortensen Private International Law in Australia 2006, LexisNexis Butterworths at [2.4] citing John Russell & Co Ltd v Cayzer Irvine & Co Ltd [1916] 2 AC 298 at 302.
[7] (1958) 98 CLR 310 at 322-323.
At all relevant times, Campbell has been on notice of James’ contentions in this respect and has chosen not to disclose his whereabouts nor to submit that he should be regarded as within the jurisdiction of the Supreme Court of South Australia. Indeed, as earlier indicated, Campbell has been at pains to point out that he is not a resident of Australia and has no Australian address.
I am satisfied that even if Campbell is present somewhere in Australia he is only so present under sufferance and until arrangements can be arrived at that would permit him to leave Australia and return to reside in the United Arab Emirates. In any event, there is no evidence on the basis of which a finding could be made that he is within the territorial limits of South Australia.
I am satisfied that Campbell is out of the jurisdiction of the Supreme Court of South Australia for the purposes of section 37(1) of the Trustee Act. In any event, I am satisfied, on the facts, that Campbell presently “cannot be found” such that section 37(1)(b)(iv) is also engaged. Accordingly, the power to make a vesting order under section 37, and as discussed in more detail in the principal reasons, is engaged.
Whether it remains appropriate to answer “Yes” to the questions asked in paragraph 1(i) of the draft minutes of order bearing in mind the later making of a sequestration order against Campbell’s estate[8]
[8] Originally this issue related to paragraph 1(j) but a later amendment to some of the paragraph numbers (of no substantive effect) means that the enquiry is now to be directed to paragraph 1(i).
The question in paragraph 1(i) and its proposed answer in the draft minutes with respect to the James’ interlocutory application (FDN 40) was originally in these terms.
‘Whether in determining the value, payment and appropriation of assets of the deceased in satisfaction of the equal one third share in the residuary estate of the deceased under clause 7 of the will of Campbell Creaghe Irwin the Executors are justified in doing and should:
(i)Deduct from or set off against such entitlement of Campbell Creaghe Irwin any sums of money payable by Campbell Creaghe Irwin to James Alexander Irwin or Angus William Irwin pursuant to orders for costs made against Campbell Creaghe Irwin in:
(1)These proceedings;
(2)Action no. 1677 of 2009 in the Court; and
(3)Action no. 149 of 2013 in the Court.
(ii)Deduct from such entitlement of Campbell Creaghe Irwin and pay instead to Melissa May Yule, or to such solicitors as were instructed by Melissa May Yule, any sums of money payable by Campbell Creaghe Irwin to Melissa May Yule pursuant to orders for costs made against Campbell Creaghe Irwin in:
(1)These proceedings;
(2)Action no. 1677 of 2009 in the Court; and
(3)Action no. 149 of 2013 in the Court.’
answers each question ‘Yes’.
The question and proposed answer was presented in this form and relevant submissions made originally on the basis that Campbell was not an undischarged bankrupt. However, as earlier indicated, following my reservation of judgment in the matter, a sequestration order was made against Campbell’s estate. It was for this reason that I raised with the parties the question of whether or not the proposed answer “Yes” remained appropriate.[9]
[9] Principal reasons at [203].
In the final form of draft minutes, the proposed answer was amended to read:
No, save in respect of costs ordered against Campbell Creaghe Irwin in these proceedings after 23 June 2016, as a sequestration order was made under the Bankruptcy Act 1966 (Cth) in relation to Campbell Creaghe Irwin on 23 June 2016.
After having heard submissions from all parties on this topic, including a submission on behalf of the trustee in bankruptcy to the effect that an order in this form was not opposed, I was satisfied that this was the appropriate answer to the question given the changed circumstances.
Once the sequestration order had been made, any entitlements each of the other parties (qua executors) had with respect to costs payable by Campbell, as a result of costs orders made previously in the various actions referred to in the principal reasons, should now be dealt with on the basis that the other parties have only a right to prove for any such debt in the bankruptcy of Campbell. As a consequence, a right of set off in the terms initially contemplated, cannot now arise.
The proper reach of section 40 of the Trustee Act
The concern I had with section 40 of the Trustee Act and which gave rise to the need for further submissions is described in the principal reasons at [204]. After hearing from the parties on this issue, I was satisfied that the intervention of Campbell’s bankruptcy will result in a situation where he will no longer need to execute any Real Property Act transfer documents in his capacity as a beneficiary. As such, the concern I initially had with respect to the reach or ambit of section 40 in the context of the orders being sought does not now arise.
Procedural amendments to the proposed minutes with respect to FDN 40 brought about by recent statutory change
Between the first set of supplementary submissions heard on 13 December 2016 and the second set of supplementary submissions heard on 28 February 2017, James drew the Court’s attention to the passage and commencement of the Real Property (Electronic Conveyancing) Amendment Act 2016 and the Electronic Conveyancing National Law (South Australia) Act 2013. As a consequence of these legislative changes, the draft minutes of order as originally proposed by James with respect to his application, were amended to take account of new procedures available in the Land Titles Office with respect to the lodgement and registration of Real Property Act instruments.
After hearing from the parties, I was satisfied that the effect of the new legislation and the consequential amendments to the draft minutes of order to take account of the procedures now available in accordance with the new legislation were such as to be procedural only and to have no substantive effect. In other words, I was satisfied that having already determined, in accordance with my principal reasons, to allow James’ application and to make orders in accordance with the proposed draft minutes, the amendments thereto in order to accommodate the new procedural regime in the Land Titles Office were not such as to cause any prejudice to Campbell or to raise any issues of substance.
Application of the “slip” rule
At the conclusion of the hearing on 28 February 2017, I indicated to the parties that I would make orders in terms of the draft minutes, in their then final form, as provided by the parties. However, the draft minutes available to me were in a “marked up” form and contained a significant number of “tracked” changes. In the circumstances, I indicated to the parties present (including Campbell) that I would make the orders in the form as submitted but administratively in chambers later in the day once the parties had provided the draft minutes with marking up and tracking deleted.
Upon reviewing the unmarked up version of the draft minutes propounded by James and provided by email later that day, some very minor typographical errors as to the numbering, only, of the orders were identified. I arranged for a member of my chambers staff to email the solicitors for James with a request that a further version be provided with corrected numbering and such was provided. No substantive change was made to the proposed orders. This correspondence was copied to all parties including Campbell.
The email from my chambers was in the following terms.
His honour, in making orders with respect to James’ application (FDN 40), has noted what appears to be a typographical error in order 1(g) where the first subparagraph has been identified as (h) rather than what it appears it should be, that is, roman numeral 1.
His Honour requests assistance with respect to this. Whilst it would be easy to amend (h) to read roman numeral 1 that would lead to a hiatus in the orders between 1(g) and 1(i).
It has also been noted that there appears to still be tracked changes in the referenced paragraph numbers contained in 1(a), 1(f), 1(g), 1(i) and 1(j).
His Honour would appreciate your assistance.
The response received from senior counsel representing James was in these terms.
Dear [Personal Assistant to Justice Nicholson]
[My instructing solicitor] has requested me to respond to your email.
I attach a further version of the minutes of order which removes each of the tracked changes which by my inadvertence remained in the version of the minutes of order sent to the Court yesterday. The mistaken reference in the third level of paragraph 1(g) to (h) instead of roman number (i) has also been corrected.
There was a hiatus in the alphabetical sequence in the second level of paragraph 1 of the minutes of order in that the second level went from 1(g) to 1(i) and then 1(j) and omitted use of a paragraph level 1(h). I propose that in order to avoid such a hiatus that paragraph 1(i) of the orders become 1(h) and paragraph 1(j) become paragraph 1(i). If those changes are made the hiatus in the alphabetical sequence in the second level of paragraph 1 will be avoided. The change to the alphabetical sequence of the second level of paragraph 1 of the orders has no other effect on the drafting of the orders.
The attached revised version of the minutes of order incorporates those changes.
Following this exchange of emails, an email was received from Campbell to the following effect.
I will be seeking advice on this issue and ask that nothing further be done until that advice is obtained.
No orders had been sealed at this stage. Notwithstanding Campbell’s request, I took the view that the changes to the orders as made in chambers (and when compared with the draft minutes provided and relied upon at the hearing) were typographical only and so minor as to be trivial such that they could be made in reliance on the “slip” rule without hearing further from the parties including Campbell.
Issues of costs
The costs orders sought by Ms Yule, James and Angus were as provided for in orders 16, 17, 23 and 24 in paragraph [6] above. Campbell opposed any order that he be required to pay the costs of the other parties.
As is evident from my principal reasons, the various applications agitated by Campbell were without merit and, in large part, constituted an abuse of the processes of the Court. Orders were sought against and which if made would materially affect each of Ms Yule, James and Angus. In addition, Campbell persisted with allegations tantamount to fraud and dishonesty by each of the other parties without presenting any sound factual basis in support. Ms Yule, James and Angus were entirely justified in resisting Campbell’s applications and allegations. Whilst, in large part, they had a common interest, their legitimate interests were sufficiently separate such that it was appropriate that they be separately represented. Further, there was significant cooperation between all three such that any unnecessary duplication was kept to a minimum. I am satisfied that each of Ms Yule, James and Angus were obliged to appear in support of the principal substantive application (that of James) and in answer to Campbell’s applications, in their capacities as executors and trustees. In so doing, they incurred costs and expense in the discharge of their roles as executors and trustees.
In response to the unmeritorious, as found, applications by Campbell, Angus, on behalf of himself but also on behalf of Ms Yule and James, brought applications aimed at having Campbell’s applications struck out or summary judgment obtained. Angus was, but for some very minor aspects, successful in this respect. Angus’ conduct in bringing his applications was for the benefit of the estate.
Similarly, James’ application (FDN 40) being the primary substantive application dealt with in my principal reasons and being the application directed at placing the executors in a position to enable the administration of the estate in question to be finalised or finalised in large part, was also brought for the benefit of the estate. I accept that none of Ms Yule, James or Angus conducted the litigation before me in an unreasonable way or caused costs to be incurred unnecessarily.
By way of contrast, Campbell was unsuccessful with respect to his own applications and unsuccessful in his opposition to the applications brought by Ms Yule (FDN 27), James (FDN 40) and those brought by Angus in direct response to Campbell’s applications. Campbell has, at all times whilst I have had conduct of the matter (apart from one attendance at a directions hearing early in the piece) been unrepresented and not exposed to incurring his own legal costs. Further, as the principal reasons demonstrate, Campbell acted unreasonably and not in the interests of the executors or of the estate itself but solely to advance his own interests as beneficiary. In so doing, his intention was to prevent the estate from being administered in the way in which I have found it should be.
The Court has a broad discretion when dealing with matters of costs.[10] Notwithstanding that this matter was structured, at least initially, as an application by James for advice and direction pursuant to section 69 of the Administration and Probate Act, as the matter developed it proceeded adversarially and was contested to the end by Campbell. In my view, the general rule that costs should follow the event should apply. In addition and in any event, the situation is one where the executors who have incurred costs of legal representation, that is, Ms Yule, James and Angus, with respect to all applications dealt with in my principal reasons, are entitled to exercise an executor’s ordinary right of indemnity from the assets of the estate of the deceased.
[10] Section 40 Supreme Court Act 1935, rule 263 and supplementary rule 195 of the Supreme Court Civil Rules 2006.
Nevertheless, it would be unfair and inappropriate for this ordinary indemnity to be exercised to the advantage of Campbell. In my view, it is appropriate that he be ordered to pay three sets of legal costs and that such costs in the first instance be met from any residuary share of the estate as ultimately becomes available to Campbell.
As indicated, Campbell is now an undischarged bankrupt. Whilst the making of a sequestration order against his estate does not prevent the Court from making an order for costs against him with reference to these proceedings, as a practical matter he may not be in a position to meet such a costs order. For this reason, it is appropriate that orders 17 and 24 in paragraph [6] above be made. In this respect, I observe that, upon the making of a sequestration order, the property of Campbell vested in his bankruptcy trustees by force of law.[11] However, the relevant interest which so vested was the chose in action constituted by the right of due administration of the estate which Campbell held as a residuary beneficiary of the estate.[12] Campbell’s remaining undistributed interest in the residuary estate cannot be ascertained until all testamentary expenses incurred by the executors are paid from the estate assets. These testamentary expenses will include the costs of these proceedings.
[11] See section 58(1)(a) of the Bankruptcy Act 1966.
[12] See for example the discussion in Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306.
In these circumstances, it is open for the Court to make an order of the type set out in orders 17 and 24 in paragraph [6] above. Counsel for the trustee in bankruptcy for Campbell appeared at the hearings on 13 December 2016 and 28 February 2017 when these matters were addressed and provided short submissions. Counsel for the trustee indicated that his instructions were not to oppose the costs orders as sought by Ms Yule, James and Angus.
It was for these reasons that I made the costs orders set out in paragraph [6] above.