Zwart v Westley

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ZWART & ANOR v WESTLEY & ORS
[2025] SASC 132
Decision of the Honourable Associate Justice Bochner
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - ASCERTAINMENT OF TESTATOR'S INTENTION
SUCCESSION - PERSONAL REPRESENTATIVES - COMMISSION
The first and second respondents seek advice and directions as to the distribution of a deceased estate. They also make an application for executor’s commission.
Succession Act 2023 (SA); Trustee Act 1936 (SA); Administration and Probate Act 1919 (SA); Fisheries Management (Rock Lobster Fisheries) Regulations 2017 (SA); Uniform Civil Rules 2020 (SA); Probate Rules 2015 (SA), referred to.
Todd v Todd [2021] SASC 36; Brooks & Anor v Young & Ors [2018] SASCFC 81; Starke v James [2009] SASC 40; Starke v James (No 2) [2009] SASC 221; Chiro v Linton (No 2) [2009] SASC 197; In the Estate of Peter McBride (Deceased) [2019] SASC 204; In the Estate of Wilson [2023] ACTSC 186; Re Stuckey; Scholte v Stuckey [2021] VSC 67; In the Estate of Woodrow [2023] ACTSC 129, considered.

ZWART & ANOR v WESTLEY & ORS
[2025] SASC 132

These reasons address two separate applications arising out of the administration of the deceased estate of Max Zwart (“the deceased”), who died on 31 March 2012. I will first deal with an application for advice and directions brought by the executors of the estate. I will then address an application by the executors for the payment of commission.
Background
The deceased executed his last will on 21 March 2012. The will was drafted by the deceased’s solicitors, Westley DiGiorgio Norcock, and named Peter Robert Westley, Richard Mencel and Atse Stal as executors. Each of Mr Westley, Mr Mencel and Mr Stal were professional advisors to the deceased, with Mr Westley being his lawyer and Mr Mencel being his accountant.
The deceased died on 31 March 2012. A grant of probate was issued to Mr Westley on 29 June 2012, with leave reserved to Mr Mencel and Mr Stal. Mr Stal died in 2014.
The deceased had three sons, Nathan, Wayne and Bryan. Without meaning any disrespect I will refer to them by their first names to allow ease of identification.
The deceased was a southern rock lobster fisherman, operating a fishing business known as Orca Blue. The business was operated through the vehicles of a company and a family trust and with assets in the deceased’s name.
The company, Orca Fishers Pty Ltd (“Orca Fishers”) was registered in 1997. The deceased was the director of Orca Fishers until his death and owned both of its two shares. At the time of the commencement of this action, the directors were Mr Westley and Mr Mencel, having been appointed directors in their capacity as executors of the deceased’s estate.
The Max Zwart Family Trust (“the family trust”) was established in 2007. On its establishment, the trustees were the deceased, Wayne and Bryan; the appointor was the deceased; and the named beneficiaries were the deceased, Nathan, Wayne and Bryan. The trust traded using the registered business name, “Orca Blue”. Not long after the deceased’s death, the trustees executed a deed of appointment to appoint Mr Mencel and Nathan as trustees of the family trust, in addition to Wayne and Bryan.
The following assets were used by Orca Blue:
·A Southern Rock Lobster Pot Licence No S249 (“the licence”), owned by the deceased and registered in his name;
·80 rock lobster pot entitlements attached to the licence, 66 of which were owned by the deceased and 14 of which were owned by Orca Fishers;
·A fishing boat owned by Orca Fishers;
·A marina berth at Cape Jaffa owned by the family trust;
·A collection of other fishing assets, of which the ownership is not clear.
All of the revenue from Orca Blue is paid into a BankSA account in the name of the family trust. The family trust has a business loan from BankSA which is secured over the licence. At the date of the deceased’s death, the loan was in the sum of $1,565,000.00. All of the business expenses, including wages, loan repayments and other liabilities are paid from the BankSA account.
I note that the BankSA loan was taken out during the lifetime of the deceased and at a time when the deceased, Wayne and Bryan were the trustees of the family trust. I further note that the security for the loan was the licence, which was owned by the deceased.
The operation of Orca Blue before the death of the deceased
Nathan started working for Orca Blue in about 1996, when he was 16 years old. He worked for Orca Blue for a number of years and then worked for other businesses until the deceased became unwell in late 2008 or early 2009. From that time, the deceased was admitted to the Royal Adelaide Hospital and spent approximately 11 months as an inpatient. Nathan returned to work for Orca Blue, skippering the boat during the fishing season. I note that Nathan has a number of formal qualifications which allow him to operate and skipper a fishing vessel.
During the 2010/2011 fishing season, Wayne worked as a deckhand for Orca Blue. Nathan says that Wayne’s employment was terminated during the deceased’s lifetime because of his unreliability. Bryan also worked for Orca Blue as a deckhand before the deceased’s death. Neither Wayne nor Bryan have the qualifications necessary to skipper a fishing boat.
Nathan says that, during the 2011/2012 fishing season, the deceased’s health deteriorated to the point that he was unable to run the business. At that point, Nathan took over the operation of the business on a day-to-day basis. At that time, Bryan was still working as a deckhand for Orca Blue.
The deceased died at the end of the 2011/2012 fishing season.
The will
As previously stated, the will appointed Mr Westley, Mr Mencel and Mr Stal as the deceased’s executors and trustees. By clause 3 of the will, the deceased gave to his trustees the licence and all lobster pots and his shares in Orca Fisheries to hold on trust until Bryan, the youngest of his sons, attained the age of 35. During the period of the trust, the trustees were permitted to carry on the business and to distribute income in following way:
·5% of the gross annual catch to Wayne;
·22% of the gross annual catch to Nathan and Bryan, to be divided between them as agreed by the trustees and taking into account their roles in the conduct of the business; and
·The balance of the income from the annual gross catch to be retained by the trustees and used to pay expenses and income tax, to reduce debt and to pay any further distribution to Nathan, Wayne and Bryan as determined by them.
Once Bryan reached the age of 35, the trustees were to distribute the assets equally between Nathan, Wayne and Bryan. Aside from dealing with a number of specific bequests, the will left the residue to be shared equally by Nathan, Wayne and Bryan.
The operation of Orca Blue after the death of the deceased
Bryan continued to work for Orca Blue during the 2012/2013 fishing season as a deckhand. However, he became increasingly unreliable and at times, the boat was unable to go out to fish because Bryan had not turned up for work. Eventually, Nathan reported this to Mr Westley and Mr Mencel and asked them to hire another deckhand. Bryan’s employment with Orca Blue was terminated midway through the season.
Since Bryan’s employment was terminated, Nathan has fished every season without assistance from Bryan or Wayne. Orca Blue has fished to quota for each season. The business has been operated by Mr Westley and Mr Mencel. Nathan says that he met with them approximately twice each year: once at the start of the fishing season, and once at its conclusion.
Initially in the period after the deceased’s death, Mr Westley and Mr Mencel determined that, of the 22% of the gross annual catch that was to go to Nathan and Bryan, 12% would go to Nathan as skipper and 10% would go to Bryan as deckhand. Wayne received his 5% share even though he was not working in the business in any way.
After Bryan ceased working for Orca Blue, the business employed a deckhand who received a wage equivalent to 10% of the annual gross catch. Part way through the 2013/2014 fishing season, Mr Westley and Mr Mencel agreed that Bryan would receive 5% of the annual gross catch as he was no longer working in the business and Nathan’s share would increase to 15%.
Nathan says that he agreed to receive 15% even though the industry rate for a skipper was between 25% and 35% of the annual gross catch. He did this to allow the business to pay down its debt in a shorter period of time. In addition to skippering the boat, he undertook other work that would not normally be carried out by an employed skipper. Most of this work was done for no additional pay, although occasionally he was paid an agreed hourly rate. He says that this has saved the estate a considerable amount of money.
I note that Wayne and Bryan, as trustees of the family trust, refused to allow Nathan to fish the 2023/2024 fishing season. It is Nathan’s contention that that refusal caused a significant loss to the business.
I further note that, during the course of the administration of the estate, the brothers have been paid the nominated share of the gross annual catch plus other distributions from time to time.
Finally, I note that distribution of the estate in specie is affected by the operation of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017, which provide that a rock lobster licence must not hold more than 100 or fewer than 40 rock lobster pots. It is open to a person who holds fewer than 40 pots to lease them to another licence holder, or conversely, lease other pots to bring them up to the required number.
Efforts by Bryan and Wayne to have the estate distributed
Bryan and Wayne instructed lawyers in early 2014, with a view to having the estate distributed early. I will not summarise all of the correspondence that went between their lawyers and Mr Westley as it is voluminous. Suffice to say that, on a perusal of the correspondence, I have formed the view that Mr Westley did his best to provide the information sought by them and to answer their questions about the estate and the running of Orca Blue. It is clear that at times, Bryan and Wayne were difficult to contact, often acted on incorrect information and assumptions and tended not to respond to queries from Mr Westley. It is also clear that, whatever the relationship between Nathan on the one hand and Bryan and Wayne on the other at the time of the deceased’s death, it broke down fairly quickly thereafter.
Any proposal to wind up the estate needed to take into consideration the fact that the debt to BankSA was secured against the fishing licence; if the pots were not kept intact, then the loan would need to be repaid before there could be any distribution of the estate. To repay the loan, the pots would have to be sold.
There was extensive correspondence between the parties about the distribution of the estate. In April 2014, Bryan and Wayne proposed that all assets in the estate be sold and the business wound up. They made a further offer in September 2014 that the boat and fishing assets be sold, with the proceeds used to reduce the debt. The licence (with the lobster pots) would then be leased until the remainder of the debt is paid off. Following repayment of the debt in full, the pots would be distributed equally between the brothers.
In December 2014, Nathan offered to purchase the lobster pots, boat and the other fishing assets from the estate. Bryan and Wayne made a counteroffer that the boat and fishing assets be sold, and the lobster pots distributed, on the basis that Nathan receive 26 and Wayne and Bryan receive 27 each, or alternatively, Nathan receive 40 and Wayne and Bryan receive 20 each, with the necessary adjustments made.
In September 2015, before any resolution could be negotiated, Bryan’s and Wayne’s lawyer ceased acting for them. There was then little contact between them (or someone on their behalf) and Mr Westley until 2022, in the lead up to Bryan’s 35^th birthday.
Bryan turned 35 on 28 October 2022. In April 2022, Bryan and Wayne again instructed a lawyer, Mr Hewitt, to contact Mr Westley seeking information about the estate, including some of the same material that was sought by their lawyers in early 2014, as well as more recent financial information. This information was provided by Mr Westley on 29 April 2022, who noted that a substantial amount of debt had been repaid since the deceased’s death and that the estate assets had increased substantially in value. He also noted that the bank facility with BankSA had expired, and Wayne and Bryan had failed to respond to contact made to them in this regard.
On 18 July 2022, Mr Hewitt advised Mr Westley that his clients would not consent to the business’s continuing to trade beyond Bryan’s 35^th birthday. He further advised that they sought an equal one third distribution of the estate, on the basis that the lobster pots be distributed in specie. They requested that the remaining assets in the estate be sold.
At this time, the outstanding debt was in the sum of $535,000. Mr Westley advised Mr Hewitt that he and Mr Mencel intended to undertake an equal distribution of the estate in specie but remained concerned that there would be insufficient assets to repay the debt if the licence and pots were not sold. Again, I do not intend to summarise all of the correspondence that was then exchanged by Mr Westley and Mr Hewitt. Suffice to say, the parties remained in dispute as to how the estate should be distributed, including the value of various assets, and whether Orca Blue should be permitted to fish from the commencement of the 2022/2023 season.
In September 2022, Nathan instructed O’Loughlins Lawyers (“O’Loughlins”) to act on his behalf. In a letter to Mr Westley and copied to Mr Hewitt, O’Loughlins noted that Nathan’s operating the business had led to a reduction of the business debt by more than $1,000,000, that Bryan and Wayne had received significant financial benefit from this, and Nathan himself had been paid substantially less than the market rate for skippering the boat and managing the business. They further advised that the proposed distribution under the will was inequitable, given the relative contributions of Nathan, Wayne and Bryan to the business and the overall value of the estate. They then proposed a distribution that would allow Nathan to continue operating the business on the basis that he took over its debt, paid a sum of money to Bryan and Wayne to reflect the value of the assets that he was receiving and a distribution of the lobster pots between them. Mr Westley considered that the distribution proposed by Nathan reflected an equal distribution to each of the brothers, without the need to sell any significant assets.
Mr Hewitt’s response to this offer, on behalf of Wayne and Bryan, was to reject it, question the liability of the estate for the BankSA debt and make, for the first time, an allegation that at the time of the deceased’s death, there was a shoebox containing $495,000 in cash which was taken and retained by Nathan.
There ensued a substantial volume of correspondence in which Bryan and Wayne sought trust documents pursuant to s 84B of the Trustee Act 1936 (SA), questioned the administration of the estate by Mr Westley and Mr Mencel, and demanded the distribution of the estate’s assets. Mr Westley suggested that the parties attend a mediation, which Bryan and Wayne refused to do. Bryan and Wayne, through Mr Hewitt, and Nathan, through O’Loughlins, continued to dispute various matters, including allegations made about Nathan’s conduct. Ultimately, Bryan and Wayne advised that they wanted to retain a forensic accountant to investigate the administration of the estate. They made a number of complaints about the administration of the estate, and particularly about the BankSA loan. In particular, they appeared to take the view that the BankSA loan was not a matter that they needed to take into consideration as it did not concern them. Throughout, Mr Westley expressed his willingness to sell assets of the estate and undertake a distribution, on the basis that the BankSA loan was paid first.
On 29 April 2024, Bryan and Wayne commenced this action. The relief that they sought was the revocation of the grant of probate to Mr Westley, the removal of Mr Westley as executor, the passing over of Mr Mencel as executor, the grant of letters of administration with the will annexed to an independent administrator, the production of documents relating to both the estate and the family trust under the Trustee Act 1936 by Mr Westley, the audit of the estate’s financial records and the family trust’s financial records by an independent forensic accountant, and the removal of Mr Westley, Mr Mencel and Nathan as trustees of the family trust. From the outset, Mr Westley and Mr Mencel did not oppose the appointment of a forensic accountant to examine the financial records of the estate and the family trust. The matter did not resolve at mediation.
In September 2024, Mr Westley commenced a probate action in which he sought payment of executor’s commission. In addition, he sought leave to make a payment of executor’s commission to Mr Mencel on the basis that, even though he never took a formal grant, he has spent a significant period of time since 2012 attending to the affairs of the estate and the family trust.
On 29 November 2024, Mr Westley and Mr Mencel filed an application for advice and directions as to the distribution of the estate. Essentially their proposal is that Nathan would receive 26 lobster pots, and the assets required to continue the business of Orca Blue (including the licence and the shares in Orca Fisheries), would take on all of the BankSA debt and would pay an amount to Wayne and Bryan which would equate to their receiving one-third of the estate each. They would also receive 32 lobster pots as joint tenants. Any residue would be distributed equally between the three brothers. They also sought advice and directions as to the sale of 8 lobster pots to enable executor’s commission to be paid, on the basis that the pots sold would be pots that did not attract a capital gains tax liability.
The parties agreed that the application for executor’s commission and the advice application should be listed for hearing. These reasons address those applications.
I note that at different times, Bryan and Wayne have expressed different wishes as to the distribution of the estate. These have ranged from a sale of all assets and then distribution of the net proceeds, to their receipt of assets in specie so that they could conduct a fishing business. On 13 April 2023, Mr Westley proposed vesting the estate and transferring its assets to each of the brothers as joint tenants, which would allow him to retire as trustee. This proposal was rejected by Bryan and Wayne.
Advice and Directions
I note at the outset that the affidavit material in this matter is voluminous. Most of it comprises correspondence between the parties since early 2014. I have read all of it. The fact that I do not refer to each piece of correspondence is not to be taken as an indication that I have not read or considered it.
I simply make the following comments about the correspondence. At all times, it appears that Mr Westley endeavoured to provide Wayne’s and Bryan’s lawyer with all documents and information that was requested. It seems that the same information was requested on their behalf multiple times over a number of years. It further seems that they sought information about matters about which they should have been aware, including things that occurred before the death of the deceased. They have never appeared to grasp the link between the BankSA debt and the estate assets, nor the fact that the loan was taken out by the deceased before his death and, as trustees of the family trust at the time, they were well aware of it. They have continued to assert that the BankSA debt is “not a matter for them”.[1]
[1] See for example FDN 18, PRW-69.

I further note that Bryan and Wayne refused to allow Orca Blue to fish the 2023/2024 season, as a result of which significant income was lost and the BankSA loan fell into default for the first time since the death of the deceased. At various times, Mr Westley made different proposals to finalise the estate, however agreement could not be reached between Bryan, Wayne and Nathan as to how the estate should be distributed.
In formulating his application for the distribution of the estate, Mr Westley has been concerned about:
·The testamentary intention of the deceased that the fishing business continue as a family business and not be sold;
·That sale of some of the assets would result in a significant capital gains tax liability; if all assets were sold, it is estimated that the CGT liability would be in the region of $1,300,000;
·Bryan’s and Wayne’s refusal to take any assets jointly with Nathan.
These considerations have led to Mr Westley to form the view that, given that Nathan wants to continue to run the business, their duty to maximise the value of the estate must lead to the conclusion that the assets should not be sold but, rather, transferred to Nathan, who in turn would pay a sum to Bryan and Wayne equivalent to their share of the value of the estate. This would prevent the imposition of capital gains tax and allow Nathan to take over the BankSA loan.
Mr Westley bases his contention about the testamentary intention of the deceased on clauses 3 and 8 of the will. Clause 3 provides:
3.I GIVE my Southern Rock Lobster Pot Licence No S249 and all lobster pots I own pursuant to that Licence and my shares in Orca Fishers Pty Ltd (and which company owns additional Rock Lobster Pot Licenses and a fishing boat) UNTO my trustees to hold in trust until such time as the youngest of my sons NATHAN MAX ZWART, WAYNE GRAHAM ZWART and BRYAN KEITH ZWART shall have attained the age of thirty five (35) years (or such sooner date as my sons shall unanimously by way of agreement between them direct my trustees to so vest that Trust) and I DIRECT my trustees during any period of trust to hold deal with and distribute the income and corpus of those assets referred to herein in the following manner:-
3.1    To permit the assets of Orca Fishers Pty Ltd to be leased to, used by or managed upon such terms as my trustees shall agree by the trustees of the Max Zwart Family Trust and subject to the payments by way of a distribution from the Max Zwart Family Trust as follows :
3.1.1As to such sum equal to five percentum (5%) of the gross annual catch of lobsters by the said Trust using my Southern Rock Lobster Pot Licence and those licenses owned by Orca Fishers Pty Ltd UNTO my son WAYNE GRAHAM ZWART.
3.1.2As to twenty two percentum (22%) of the said gross annual catch as referred to hereabove to be divided between my sons NATHAN MAX ZWART and BRYAN KEITH ZWART in such a manner as shall be agreed by my trustees and having regard to the responsibilities of my said sons in the conduct of the fishing business as aforesaid.
3.1.3As to the balance of the income from the said annual catch to be retained by my trustees at their discretion to pay :
3.1.3.1      Fishing business expenses.
3.1.3.2 The income tax on any retained but undistributed profits of the said Family Trust.
3.1.3.3      The reduction of debt; and
3.1.3.4Any further distribution as my trustees shall determine in favour of my said sons.
3.1.4Upon my son BRYAN having attained the age of thirty five (35) years then to divide and / or distribute those assets as aforesaid held by my trustees equally between my said sons NATHAN, WAYNE and BRYAN.[2]
[2]    FDN 2, exhibit WGZ-1.
He says that it is abundantly clear that, after his death, the deceased intended his trustees to allow the estate assets to be used by the family trust for the purpose of running the business, until Bryan reached the age of 35. After that time, his trustees were to “divide and/or distribute” the estate assets to his sons equally.
Mr Westley notes that none of the brothers would receive enough pots to enable them to conduct a fishing business. However, they would have the ability to lease further pots themselves to bring them up to the required number, or, alternatively, they could lease or sell their own pots.
Wayne and Bryan submit that Mr Westley’s application for advice and directions should be dismissed, or, in the alternative, advice should be given that distribution of the estate should not occur as proposed by Mr Westley. They dispute the value of the various estate assets attributed to them by Mr Westley, and they say that the distribution proposed by him does not result in an equal share of the estate.
Wayne and Bryan contend that the proposal to distribute 32 pots to them is contrary to reg 14(1)(a)(ii) of the Fisheries Management (Rock Lobster Fisheries) Regulations 2017 (SA) which stipulates a minimum pot entitlement of 40 pots. They further argue that, because they do not hold a licence, the transfer to them cannot be effected. And, without a licence, they are not permitted to utilise the pots. As a result, transfer of the pots as proposed should not be sanctioned by the Court.
Wayne and Bryan also object to receiving pots as joint tenants. They say that the alternative is for the pots to be sold, and the net proceeds be distributed.
Wayne and Bryan further object to the distribution proposed by Mr Westley, because it is dependent on Nathan’s ability to raise the finance to pay them the amount necessary to bring their distribution up to one-third each of the value of the estate. They say that there is no evidence that he has received final approval from a lender. They further contend that the amount sought by Nathan by way of finance is insufficient. They also complain that the application does not contain a proposal for the way that the amount to be paid by Nathan is to be calculated, or how it is to be paid, and what would occur in the event of Nathan’s default.
Wayne and Bryan press for all estate assets to be sold, all estate debts to be paid, including capital gains tax, and the equal distribution of the net proceeds of sale. They say that Mr Westley’s proposal does no more than defer any capital gains tax liability and so does not amount to a saving.
Wayne and Bryan dispute the contention that the deceased expressed any testamentary intention that the business was to remain operating as a family business after his death. They say that clause 8.2 of the will expressly gives the trustees the power to “sell redeem or otherwise convert into money all of those assets contained in my estate by private sale or public auction and in such a manner as my trustees by agreement shall choose.” This power comes before the powers to carry on the deceased’s business and to distribute the estate assets in specie. It is clear that the deceased anticipated that sale of the estate assets might be required. This clause negates any intention in the will that the business remain in the family after the deceased’s death.
Nathan supports the application brought by Mr Westley. He considers that the proposal reflects the deceased’s wishes and is in the best interests of all beneficiaries. Each beneficiary will receive assets or an amount equivalent to one-third of the estate and the business will continue to be run by a family member. Further, no loss would be incurred through the triggering of a significant CGT liability. The only alteration to the proposal that Nathan seeks is for permission to purchase the pots to be sold to meet the executor’s commission, if he is able to raise the funds to do so.
Nathan says that the deceased’s will expresses the clear intention that the business should be preserved so that it can be carried on. This is clear in clause 8.4, which reads:
I EMPOWER my trustees to divide and / or distribute my estate in specie amongst my beneficiaries and by reference to value and any dispute in relation to the valuation of any asset contained in my estate shall be settled by my trustees obtaining a valuation thereof and which valuation shall be binding on my beneficiaries.[3]
[3] FDN 2, exhibit WGZ-1.
Mr Westley’s proposal is the only one that is consistent with this. Nathan points to the fact that he was operating the business for his father prior to his death, and since then, on behalf of and in conjunction with Mr Westley. He has fished to quota every season except for the 2022/2023 season, without any assistance from Bryan and Wayne. Bryan and Wayne, by contrast, both had their employment in the business terminated because of their unreliability and have not assisted in the business in any way since Bryan’s termination shortly after the deceased’s death.
Nathan says that the assets of the estate should not be sold. The triggering of a capital gains tax event will erode the value of the estate for the beneficiaries. By distributing 32 pots to Wayne and Bryan, they have the ability to fish if they wish to do so, lease the pots to other fishers or sell them.
Nathan rejects Bryan’s and Wayne’s contention that the capital gains tax liability is relevant, on the basis that distribution in specie simply defers any capital gains tax liability. In rejecting this contention, Nathan relies on the case of Todd v Todd[4], where the Court found that a latent CGT liability should not be taken into account when determining the value of assets at the time of distribution. Bryan and Wayne have not given evidence of any intention to sell the pots and so any future CGT liability should not be taken into consideration.
[4] [2021] SASC 36.
Consideration
In Brooks & Anor v Young & Ors[5], S Doyle J (as he then was) summarised the duties of an executor in the following way:
The key tasks of an executor in administering an estate are to get in the assets of the estate, pay the expenses and liabilities of the testator, and then distribute the estate in accordance with the will. In carrying out these tasks the executor’s primary duty is to carry out the wishes of the testator, as expressed in the will. While the executor is afforded some flexibility in his or her approach to the above tasks, there is an obligation to proceed with the administration of the estate with due diligence.[6]
(footnote omitted)
[5] [2018] SASCFC 81.
[6] Ibid, [86].
In this matter, Mr Westley’s performance of his “key tasks” has been informed by the requirement of the will that he hold the estate assets as trustee until the deceased’s youngest son, Bryan, turned 35. It is clear from the terms of clause 3 of the will that it was the deceased’s intention that Mr Westley should cause the business to trade, as it had done prior to his death, until Bryan’s 35^th birthday. After Bryan’s 35^th birthday, it is also clear that the deceased intended the assets of the estate to be “divided and/or distributed” to his sons equally.
All of the parties have made submissions about the intention of the deceased after Bryan’s 35^th birthday. Mr Westley and Nathan have submitted that the will discloses the intention that the assets of the business be kept intact and the business continue to be run as a family business. Bryan and Wayne have submitted the intention disclosed is that the assets be sold.
Clause 8 of the will gives the trustee very broad powers with respect to the assets of the estate. That clause contemplates sale, division or distribution in specie, and the continuation of the deceased’s business. I do not consider that the will demonstrates that the testator intended any one of these options to be preferred over any other. I do not consider that the will discloses any intention that the business be carried on beyond Bryan’s 35^th birthday. Once that time has been reached, it is a matter for the trustee to determine how the assets should be divided or distributed, on the basis that the brothers each receive one-third.
The distribution proposed by Mr Westley accounts for all of the assets of the estate, including those which are currently used as security for the family trust debt. It maximises the estate by reducing any capital gains tax liability. By proposing a distribution of the lobster pots in specie, Mr Westley effectively avoids triggering a capital gains tax event. I reject the submission of Bryan and Wayne that the CGT liability is simply deferred by this proposal. While it is true that a CGT liability will arise in the event that the lobster pots are sold at a future time, there is no evidence before me that any of the brothers intends to sell them. Nathan has made it clear that he has no intention of selling those distributed to him, and Wayne and Bryan have made conflicting statements about whether they wish to sell or retain those distributed to them.
The licence obviously cannot be distributed to each of the brothers. The proposal has Nathan receiving the licence on the basis that it is appropriately valued, with Bryan and Wayne each receiving a cash sum equivalent to one-third of its value. The outcome for Bryan and Wayne is no different to that if the licence was sold and the net proceeds divided three ways.
The same can be said of the other assets which form part of the proposal. Each has been valued, and Bryan and Wayne will each receive one-third. Nathan will take on the debt; this will be taken into account when determining the payment to be made to Bryan and Wayne.
I reject Bryan’s and Wayne’s objections to the proposal on the ground that it was too uncertain with no way of determining values and balances. Mr Westley has in fact provided valuations for all of the assets; it is simply a matter of carrying out an accounting exercise to determine how much they will receive. How much they ultimately receive will be determined by the outstanding BankSA debt on the date of settlement.
Subject to my decision on the application for executor’s commission, I advise that Mr Westley should distribute the assets of the estate as proposed in FDN 26.
The application for executor’s commission
Before I consider the submissions of the various parties, I acknowledge that Mr Westley and Mr Mencel have undertaken significant work, with Nathan, to ensure the successful operation of the Orca Blue business for more than 10 years. During that time, significant distributions have been made to each of the brothers, including in excess of $600,000 each to Wayne and Bryan, even though they made no contribution to the business. In addition, they have reduced the debt of the family trust from $1,500,000 to approximately $260,000, while not disposing of any estate assets other than in accordance with the terms of the will.
I further note that Bryan and Wayne have made a range of allegations about the conduct of Mr Westley in particular, but also Mr Mencel, as well as Nathan. These allegations have generally lacked any particularity, save for the allegation that Mr Westley did not distribute the estate promptly when Bryan turned 35.
Bryan and Wayne were represented by lawyers for several years shortly after the deceased’s death. They then failed to raise any further concerns for approximately 7 years, until shortly before Bryan’s 35^th birthday. They have been trustees of the family trust throughout, and indeed, since well before the deceased’s death. They could have investigated many of the matters that they now raise by virtue of that role but have chosen not to do so.
I make no finding about their allegation about the shoebox of money. They did not raise this matter when they first instructed solicitors shortly after their father’s death. They raised it for the first time 10 years later. It is difficult to accept that there is any real substance to their complaints given that they did not raise them for 10 years after their father’s death.
As to the allegation that Mr Westley failed to distribute the estate in a timely manner, I consider that there is no basis for any criticism. By the time of Bryan’s 35^th birthday, the brothers were locked in a dispute about how the estate was to be distributed; it is not surprising that Mr Westley refrained from distributing the estate in the absence of any agreement between the brothers. In addition, Bryan and Wayne were threatening to have a forensic accountant undertake an audit of the estate accounts and were making various allegations against Mr Westley. In the circumstances, I do not consider that that Mr Westley can be criticised for not distributing the estate earlier.
As to the allegations against Nathan, this is not the appropriate forum for addressing them. I note that the allegations are largely unparticularised and are vague; otherwise, I do not deal with them further.
Mr Westley seeks, on his own behalf and on behalf of Mr Mencel, executor’s commission of $500 per week each for the period 31 March 2012 to 30 June 2024, during which time they have been operating the fishing business. The total amount sought is in the sum of $312,000 each. To be clear, Mr Mencel also seeks the payment of executor’s commission, even though he never obtained a grant of probate and leave has remained reserved to him.
In addition, Mr Westley seeks an order that he be permitted to continue to claim the sum of $500 per week for both him and Mr Mencel until the finalisation of the estate administration.
The position of Mr Westley and Mr Mencel is that they have been operating a commercial rock lobster fishing business since 2012, during which time it has earned significant income, reduced its debt by more than $1,000,000 and significantly increased the value of its assets.
The will allows Mr Westley and Mr Mencel to charge for legal and accounting work undertaken for the estate. Since the death of the deceased, Mr Westley’s firm has rendered three invoices to the estate for legal work done, in the sum of $24,000. Mr Westley says that none of the work related to the running of the fishing business, but rather was legal work done for the estate. As a result, Mr Westley says that no charge has been made to the estate to date for the work that he has undertaken to run the business.
Mr Mencel has charged the sum of $6,600, which Mr Westley has described as “executor’s commission”.[7] He says that, if this application is allowed, this amount will either be repaid to the estate or will be taken into consideration when calculating the executor’s commission to be paid to Mr Mencel.
[7] PROB-24-006595, FDN 2, [8].
Mr Westley justifies his application on the basis that, if he had chosen to employ a person to undertake the tasks that he has undertaken, that person would be paid approximately 10% of the annual catch. This would amount to approximately $80,000 per year, or approximately $960,000 over the period that he and Mr Mencel have been carrying out the work. The amount that he and Mr Mencel now claim amounts to approximately four hours work each week at a rate of about $125 per hour, inclusive of GST, and in total is significantly less than would have been paid to a person employed to undertake the work.
Mr Westley acknowledges that he has not provided itemised accounts for the work undertaken. He says that he has provided sufficient information to justify the claim in the affidavits provided for the purpose of these actions. In addition, Bryan and Wayne have been provided with financial records relating to the management of the estate and the operation of the business.
Mr Westley says that the administration of the estate has been extremely complex. There have been ongoing disputes between the beneficiaries and a profitable business to manage. There has been substantial benefit to the beneficiaries as a result of his and Mr Mencel’s actions.
Mr Westley relied on a number of authorities in support of his application for executor’s commission, including Starke v James[8], Starke v James (No 2)[9], Chiro v Linton (No 2)[10], In the Estate of Peter McBride (Deceased)[11] and In the Estate of Wilson[12].
[8] [2009] SASC 40.
[9] [2009] SASC 221.
[10] [2009] SASC 197.
[11] [2019] SASC 204.
[12] [2023] ACTSC 186.

Nathan supports the application for executor’s commission in respect of both Mr Westley and Mr Mencel.
Bryan and Wayne oppose the application. They say that Mr Westley has failed to provide the accounts required by s 70 of the Administration and Probate Act 1919 and rule 78 of the Probate Rules 2015 (noting that, since the filing of Mr Westley’s application, both the Administration and Probate Act and the Probate Rules have been repealed and replaced by the Succession Act 2023 and the Uniform Civil Rules 2020 respectively). None of the documents filed for the purpose of the application for commission or for advice and directions provides the information required to amount to accounts pursuant to the Act or the Rules. They say that, as a result, Mr Westley’s application fails to meet the threshold necessary for the making of such an order.
Bryan and Wayne say that Mr Westley has failed to provide evidence that the deceased received advice about the possibility of a claim for executor’s commission. I note that Mr Westley has been unable to locate the deceased’s will file. Bryan and Wayne contend that, because Mr Westley is unable to establish that he advised the deceased there was a prospect he would apply for executor’s commission, it is inappropriate for him to do so, and would amount to his acting in conflict of interest, in that he was favouring his personal interests (to claim commission) over that of the deceased.
Bryan and Wayne further argue that the conduct of Mr Westley and Mr Mencel is such that they should be precluded from seeking executor’s commission. In this regard, they rely on the case of Chiro v Linton (No 2), where it was found that the executor’s delay in distributing the estate amounted to disentitling conduct with regard to an application for commission. They note that the application for advice and directions was in fact an application made in their own action to have Mr Westley removed as the executor of the estate because of complaints about his conduct, and in particular, about his delay in distributing the estate. They likened the situation to that found in Re Stuckey; Scholte v Stuckey[13], in which case the Court refused to allow executor’s commission where the administration of the estate was described as irregular and unsatisfactory and where there has been inordinate delay.
[13] [2021] VSC 67
Bryan and Wayne note that the will allows the estate to be charged for accounting and legal services, and that such charges have been made. They say that the usual principle should apply, that, subject to the terms of the will, an executor is not entitled to charge for work done in the administration of the estate. Thus, aside from charging for legal services, Mr Westley should not be entitled to claim commission for work done in the administration of the estate. They further say that, as Mr Mencel is not an executor, any application on his behalf is misconceived.
Consideration
As I have already said in these reasons, I do not consider that Wayne and Bryan have established any misconduct on the part of Mr Westley or Mr Mencel. In particular, I do not consider that any criticism can be levelled at them for not distributing the estate more promptly once Bryan turned 35, given the level of conflict between the beneficiaries as to how the estate should be divided.
I also reject the submission of Bryan and Wayne that Mr Westley has failed to produce accounts in accordance with the relevant legislation. Mr Westley has provided them with records and financial statements relating to both the family trust and the estate, as well as voluminous other material which details the work that he has carried out and the current status of the estate.
I am also not prepared to draw an inference that the deceased was not advised about the possibility of executor’s commission being claimed. I have no evidence which would allow me to draw an inference either way.
Before considering whether Mr Westley is entitled to executor’s commission, I first consider the application on behalf of Mr Mencel. Mr Mencel never obtained a grant of probate; to state the obvious, it must follow that he has never been an executor. Nonetheless, it appears that he has performed the role of executor jointly with Mr Westley. I do not understand that any of the parties contends that he has not done the work for which he now seeks commission.
Section 70 of the Administration and Probate Act 1919 provides:
70—Commission may be allowed to executors, administrators or trustees
(1)     The Court may allow to any executor, administrator, or trustee, whether of the estate of a deceased person or otherwise, such commission or other remuneration out of the estate or trust property, and either periodically or otherwise, as is just and reasonable.
(2)     No allowance shall be made to any administrator who neglects—
(a)to deliver the statement and account required by section 56, as by such section required, or within such reasonable time as is allowed by the Court; or
(b)to dispose of any estate with which he is chargeable according to the due course of administration.
(3)     Every administrator so neglecting to dispose of any estate with which he is chargeable shall be charged with interest at the rate of seven dollars per centum per annum for such sum and sums of money as from time to time have been in his hands, whether he has or has not made interest thereof.
The Act does not define the words “executor” or “trustee”. It does, however, define “administrator” as “any person to whom administration has been granted”, and “administration” as “all letters of administration of the effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes”.[14] By the application of the principle of ejusdem generis, I conclude that the ability to apply for executor’s commission does not extend beyond a person who holds a formal appointment vis-à-vis an estate.
[14] Administration and Probate Act 1919, s 4.
This leads me to the conclusion that there is no basis on which Mr Mencel can make his application for executor’s commission. He is not an executor; as a result, he is precluded from seeking executor’s commission. He is able to charge the estate fees for the work that he has undertaken as an accountant but cannot charge otherwise.
I turn now to Mr Westley’s application for commission on his own behalf.
In Starke v James, Judge Lunn had this to say about an application for commission under s 70 of the Act:
The power of the Court to allow commission or remuneration under s 70 extends to where it is just and reasonable to do so, and is not limited to where special circumstances are established: Nissen v Grunden (1912) 14 CLR 297; re Craig (1952) 52 SRNSW 265; re Whitehead [1958] VR 143. Insofar as dicta in re Gambling (deceased) [1966] SASR 134 are to the contrary, it is not to be applied in preference to the High Court, New South Wales and Victorian decisions. Likewise the authorities in England are not to be followed: Halsbury’s Laws of England Vol 17, paras 738, 739, 740, 741 and 744. Counsel for the defendant sought to distinguish re Craig and re Whitehead (above) on the grounds that in those States there was a Charter of Justice which expressly conferred power on the Supreme Courts of those States to award commission to executors and trustees. Such a provision does not exist in this State. In re Craig above at 266, Roper J expressly based his decision on the equivalent of s 70 without further support from the Charter of Justice. I follow Roper J in not making the proper interpretation of s 70 dependent on the existence of any Charter of Justice. The cases of re Taylor (1867) 1 SALR 43, re Johnson [1924] SASR 31 and re Salom [1929] SASR 387, which deal with other issues under s 70, are all consistent with a broad and liberal interpretation being given to it.
Accordingly, I hold that in determining whether the plaintiff should be entitled to remuneration under s 70, it is only necessary to look to whether such an allowance is just and reasonable and it is not necessary for him to establish any special circumstances. Without going into the details of the remuneration claimed, I consider in general terms that it is just and reasonable that he should have an award of remuneration under s 70 assessed as the costs payable for the work he has properly done under the relevant Supreme Court costs Schedule. If the plaintiff had renounced his appointment as executor because there was no charging clause in the will, the executor or administrator appointed would have been entitled to significant commission under s 70 and the costs of employing a lawyer to perform the proper legal work for the administration of the estate would have been an expense in the administration of the estates. What amount is to be allowed for such remuneration under s 70 will need to be determined upon a formal adjudication of those costs.[15]
[15] [2009] SASC 40, [11] – [12].
In that case, Judge Lunn determined that it was appropriate that the plaintiff follow a process akin to a taxation of costs to establish the amount of commission that was reasonable. To that end, he ordered the plaintiff to prepare an itemised schedule of the work done and the costs claimed. I do not consider that that is an appropriate method to adopt here; in that case, the executor had been in office for less than one year at the time that legal action in relation to the estate was commenced. Further, it was a situation where the will did not allow the executor (a lawyer) to charge legal fees to the estate, and it was legal work for which the executor sought remuneration. I note, for completeness, in Starke v James (No 2), Judge Lunn confirmed that the work for which the executor sought remuneration extended to non-legal work as well as legal work.[16]
[16] [2009] SASC 221, [8].
In In the Estate of Peter McBride (Deceased), Stanley J summarised the principles to be applied in the following way:
Subject to the terms of the will, an executor is not entitled to charge the estate for his or her work done in relation to the administration of the estate.
An executor may retain and charge the estate for the services of a professional person, such as a solicitor, accountant or estate agent, to provide such professional services as may be required to assist in the administration of the estate.
In this context, a distinction is drawn between professional work (that is to say, work of a legal or accounting nature) and non-professional work (the work otherwise undertaken by the executor).
In general, and subject to the terms of the will, an executor is not entitled to be indemnified out of the estate for the costs of retaining a solicitor to undertake executorial duties of a non-professional nature. In In the Will of Douglas Roper J held that in general an executor will not be allowed out of the estate charges of his solicitor for doing things which he ought strictly to have done himself.
Finally, unless the will otherwise expressly provides, an executor who is such a professional person is not entitled to charge for his or her professional services if he or she does that work. In the absence of a relevant clause in the will, an executor is only able to be remunerated by way of an application for the payment of commission from the estate under either s 70 of the Act or the inherent jurisdiction of the Court. Commission is awarded for “pains” and “trouble”. “Trouble” is used to assess the work which is actually attended to by the executor. In the event that the executor is a professional person, but not otherwise permitted to charge professional fees, the Court may take any such work into account in determining the amount of commission.
In Starke v James and Starke v James (No 2) this Court has recently allowed a solicitor to be paid a commission by way of an assessment of the work done and charged on the Supreme Court scale. In Starke v James the will appointed a solicitor as executor but did not have a charging clause. The Court permitted him to claim commission under s 70 of the Act to be assessed as the costs payable for the work he had properly done under the relevant Supreme Court Costs Schedule. This included both professional (legal) work and non‑professional executorial work.
The provisions of the will may provide that an executor may charge for the work that he or she renders the estate or that he or she be paid a fixed sum by way of commission. The extent of that right is a matter of construction, but such a clause may be permissive or restrictive; be in addition to or in lieu of the right to apply to the Court; apply only to professional work; or apply to all work undertaken by an executor.[17]
(footnotes omitted)
[17] [2019] SASC 204, [18] – [24].
There can be no doubt that, in undertaking the work necessary to administer this estate, Mr Westley has been put to significant “pains” and “trouble”. The administration has extended over more than 12 years and for much of that time, he was required to deal with voluminous correspondence and demands from the solicitors for Wayne and Bryan. There can be no doubt that, if he had not done the work that he had, a manager would have been required to deal with the business on a day-to-day basis. This work extended far beyond the legal work for which he has rendered invoices to the estate. It is appropriate that he be entitled to claim commission from the estate for the work that he has done.
In In the Estate of Woodrow[18], Curtin AJ considered the matters that should be taken into consideration when determining what amounts to just commission. He said:
[18] [2023] ACTSC 129.
In assessing what “is just” (at least in terms of assessing “pains and trouble”) the learned author in E S Vance, Executors Commission (LBC, 1969) summarised the authorities and listed the matters relevant to consider at pp 187-190.
When speaking of “pains and trouble” (in the NSW statute and what I would include under “his or services” in the ACT statute) matters such as responsibility, anxiety and worry are considered under “pains” and work done considered under “trouble”.
In terms of the work and judgement involved in the execution of the office of executor, a distinction is to be made between realisations requiring the exercise of not inconsiderable judgement, prompt decision-making, knowledge of non-cash asset values, knowledge of current market conditions and knowledge of when and how to sell, with those realisations which consist more of mechanical realisations and collections.
The extent to which the executors have availed themselves, at the expense of the estate, of the services of professionals, such as solicitors and accountants, should also be considered. That is, where the estate has paid for the acumen and services of professional advisors, the provision of those services would have relieved the executors of a degree of responsibility, anxiety, worry and work.
Other administrative matters which can be considered include the degree of responsibility, anxiety, worry and work involved in:
(i)the interpretation of the will;
(ii)the ascertainment of assets and liabilities;
(iii)the valuation of assets;
(iv)the ascertainment of beneficiaries;
(v)settlement with and correspondence with beneficiaries;
(vi)problems encountered by the executors in the course of administering the estate; and
(vii)the amount of mechanical work attending to the realisation and distribution of assets.
The degree of responsibility involved is relevant, especially in larger estates.
The time taken to undertake the work of executor is relevant, as is the size and complexity of the estate, the amount of work undertaken by the executor and the diligence of the executor in administering the estate: Re Estate Ford: Application for Executor’s Commission [2016] NSWSC 6 at [55].
The assessment of what “is just” is an evaluative judgement not amenable to precise mathematical calculation. It involves an element of intuitive judgement informed by such evidence as is provided in relation to the matters relevant to the determination. It is a notoriously difficult exercise: Re Estate Gowing at [51].[19]
[19] Ibid, [18] – [25].
In South Australia, the terminology used is “just and reasonable”.
In determining the commission to which Mr Westley is entitled, I take into account the following matters:
·the very long period of time that he was required to manage the business, noting that the will did not allow for the final administration of the estate until 10 years after the deceased’s death;
·that Mr Westley was required to run the business as a going concern, rather than simply call in assets;
·that Mr Westley would have received significant assistance from Nathan on matters relating to the running of the business, including with managing and maintaining assets such as the boat and technical matters relating to fishing;
·that he was required to deal with the entrenched conflict between Nathan on the one hand and Bryan and Wayne on the other;
·that rock lobster fishing is seasonal and so more attention would have been required in some months than others.
I consider that an allowance of $125 per hour for 4 hours each week is just and reasonable during the height of the fishing season, in the period leading up to it and in its immediate aftermath. However, at other times of the year, I consider that four hours per week is excessive, when the industry is in the off season.
According to Nathan, the rock lobster fishing season starts on 1 September and runs until the following May. However, once a business has caught its quota, it must cease fishing; thus, as I understand it, Nathan did not fish continuously through to May each year, and at times had caught Orca Blue’s quota by Christmastime. In those circumstances, I consider that it is just and reasonable that Mr Westley receive the following:
·$125 per hour for 4 hours each week during August (in preparation for the season), September, October, November and December each year;
·$125 per hour for 3 hours each week during January, February, March and April each year;
·$125 per hour for two hours each week during May, June and July each year.
There can be no doubt that the administration of this estate has been unduly onerous and has taken up much of Mr Westley’s time. I consider that $125 per hour is a reasonable rate, given that he would have been prevented from undertaking his usual work as a lawyer at the time that he was performing work for the estate. It is reasonable that he be entitled to claim commission, while taking into account the seasonal nature of the business.
Conclusion
I advise that it is appropriate that Mr Westley distribute the assets of the estate of the deceased in the following way:
·Nathan is to receive:
oThe S249 licence;
oThe shares in Orca Fisheries Pty Ltd and the assets owned by Orca Fisheries Pty Ltd;
oThe marina berth;
o26 pots; and
oAny other fishing equipment, boat machinery and boat parts;
·Wayne is to receive 16 pots;
·Bryan is to receive 16 pots;
·The BankSA debt is to be transferred to Nathan;
·Nathan is to pay to Wayne and Bryan such amount as is necessary to bring their distribution from the estate up to the value of one-third of the estate each;
·Up to 8 pots are to be sold in order to pay executor’s commission, to be calculated in accordance with these reasons, on the basis that the pots sold are ones which will not trigger a capital gains tax event and on the basis that Nathan is to be offered the first right of refusal; and
·The rest and residue is to be divided equally between Nathan, Wayne and Bryan in equal shares as tenants in common.

I will hear the parties on the question of costs.
The parties are to undertake the calculation necessary to determine the quantum of commission owed to Mr Westley.

[2025] SASC 132

14 August 2025