Zwart v Westley - [2025] SASC 132

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zwart v Westley

Details

AGLC: Zwart v Westley [2025] SASC 132
Case: [2025] SASC 132
Decision Date: 14 August 2025

CaseChat Overview and Summary

The case of Zwart v Westley involves the administration of the estate of Max Zwart, who died on 31 March 2012. The estate is being managed by the executors, Peter Robert Westley, Richard Mencel, and Atse Stal, who were named in the deceased’s will. Westley, who is also the deceased’s lawyer, applied for advice and directions, and for the payment of commission, both of which were opposed by the deceased's sons, Nathan, Wayne, and Bryan. The dispute centres on the distribution of the estate’s assets, including a rock lobster pot licence, fishing pot entitlements, and other business assets, as well as the payment of commission to the executors.

The legal issues the court was required to decide include the interpretation of the deceased’s will and the ascertainment of his intention, particularly in relation to the distribution of the estate's assets among his three sons. The court also had to consider whether the executors were entitled to commission for their services, taking into account the time and effort they had invested in managing the estate. The dispute further extended to the operational aspects of the deceased’s fishing business, Orca Blue, and the impact of the brothers' refusal to allow Nathan to fish the 2023/2024 season.

The court reasoned that the deceased’s will provided clear instructions for the distribution of his estate, which the executors were required to follow. The court determined that the trustees of the family trust were to distribute the assets equally among Nathan, Wayne, and Bryan once Bryan reached the age of 35. The court also found that the executors were entitled to commission for their work, considering the complexity and time-consuming nature of the estate administration. The court ordered the assets to be distributed as per the deceased’s will, with specific assets allocated to each son, and the BankSA debt to be transferred to Nathan. Additionally, the court ordered that up to eight fishing pots be sold to pay the executors' commission, with Nathan having the first right of refusal. The court further directed that Nathan pay Wayne and Bryan to ensure their shares were equal, considering the total value of the estate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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; andoAny 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.

Ratio Decidendi

Legal Principle Established

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