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  • Unreported Judgment

Groundwater v Robinson

 

[2020] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:

Groundwater v Robinson [2020] QSC 31

PARTIES:

In BS 4245 of 2016:

GAIL GROUNDWATER

(applicant)

v

MATTHEW KARL ROBINSON AS EXECUTOR OF

JAMES FRANCIS DAVID ROBINSON, DECEASED

(respondent)

In BS 4098 of 2018:

GAIL GROUNDWATER

(applicant)

v

MATTHEW KARL ROBINSON AS EXECUTOR OF

JAMES FRANCIS DAVID ROBINSON, DECEASED

(respondent)

FILE NO/S:

BS No 4245 of 2016

BS No 4098 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2019

JUDGE:

Davis J

ORDER:

Orders in terms of Schedules 2 and 3 to these reasons.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where applications were brought by the administrator of the estate of the deceased – where administrator seeks the dissolution of family provision orders, in order to sell a property of the estate – where administrator seeks to have the applicant’s caveat over that property removed, in order to sell the property – where administrator seeks judicial advice and declarations pursuant to s 96(2) of the Trusts Act 1973 before embarking upon settlement with one respondent and action against other parties – whether the orders should be dissolved and judicial advice given

Succession Act 1981, ss 6, 42

Trusts Act 1973, s 96

Corbiere & Anor v Dulley & Ors [2016] QSC 134, cited 

Glassock v Trust Company (Australia) Pty Ltd [2012] QSC 15, cited 

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, followed

MTM Funds Management Ltd v Cabalane Holdings Pty Ltd  (2000) 158 FLR 121, applied

COUNSEL:

In both BS 4245 of 2016 and BS 4098 of 2018:

G R Dickson for Gail Groundwater

J I Otto for the administrator Carla Parsons 

J H Crowther (solicitor) for the former executor Matthew Karl Robinson

A G Rae for Prudence Poole, the Litigation Guardian of the infant beneficiaries, Oliver Robinson, Talia Robinson, Thor Robinson and Rueben Robinson

Margaret Robinson appeared in person

James Robinson appeared in person[1]

SOLICITORS:

Attwood Marshall for Gail Groundwater

Parsons Law for the administrator Carla Parsons

Whitehead Crowther Lawyers for the former executor Matthew Karl Robinson

McInnes Wilson Lawyers for the Litigation Guardian of the infant beneficiaries

Margaret Robinson appeared in person

James Robinson appeared in person

  1. [1]
    Applications were brought by Carla Parsons as administrator of the estate of James Francis David Robinson (the deceased).  She seeks judicial advice and declarations pursuant to s 96(2) of the Trusts Act 1973.[2] and various other orders concerning the administration of the estate.

Background

  1. [2]
    An application under s 96 of the Trusts Act may only be made upon a written statement of facts.  Schedule “1” to these reasons is that statement.[3]  It is therefore only necessary to briefly explain the context of the applications.
  2. [3]
    The deceased died on 30 July 2015.
  1. [4]
    The deceased left a will dated 6 November 2008 (the will). 
  2. [5]
    By the will, the deceased appointed David Chalk and Matthew Karl Robinson (Matthew) as his executors and trustees.
  3. [6]
    Mr Chalk renounced his office as executor leaving Matthew as the sole executor and trustee of the estate.
  4. [7]
    Probate of the will was granted to Matthew on 2 February 2016.  
  5. [8]
    The deceased was survived by his de facto partner Gail Groundwater, his three sons, Matthew, Kirk William Francis Robinson (Kirk) and Scott James Francis Robinson (Scott),[4] a number of grandchildren, friends and associates.
  6. [9]
    Various particular bequests were made in the will and then the residue was to be split in specified shares amongst named relatives and friends. 
  7. [10]
    During his administration of the estate, Matthew paid interim dividends.  Some of that money passed to the infant beneficiaries.  Pursuant to the will, that money is to be held in trust until the infant beneficiaries reach 25 years of age.  After being appointed as administrator, Ms Parsons moved to secure that money which is now in accounts of which she is the trustee.  There are trust accounts for five beneficiaries.  Four have not reached 25 years of age.  They are:  Oliver Robinson, Talia Robinson, Thor Robinson and Rueben Robinson.  One of the beneficiaries has since attained the age of 25 years.  That is Grace Robinson.  
  8. [11]
    Investigations have revealed that at the time of his death, the value of the deceased’s estate was $2,258,520.98.  One of the assets was a home unit at a high rise apartment block in Surfers Paradise called “Condor” (the Condor unit).
  9. [12]
    One of the beneficiaries to share in the residue was Gail Groundwater who was gifted a one percent share.  This equated to a little over $20,000.  
  10. [13]
    Ms Groundwater had been the deceased’s partner for about 18 years by the time of his death and she took the view that inadequate provision had been made for her by the deceased.  She filed an application for family provision pursuant to Part 4 of the Succession Act 1981.  This was application BS 4245 of 2016 (the 2016 application). 
  11. [14]
    Ms Groundwater’s application for family provision was settled between her and Matthew as the executor of the estate.  That compromise resulted in provision being made for Ms Groundwater as follows:
    1. (a)
      payment to her of a capital sum of $200,000;
    2. (b)
      payment to her of a weekly sum of $400 for the rest of her life;
    3. (c)
      conferral upon her of a right to reside in the Condor unit for the rest of her life; and
    4. (d)
      the estate agreed to pay all body corporate levies, rates and water charges in relation to the Condor unit.
  12. [15]
    On 15 March 2017, Applegarth J made orders to carry the compromise into effect.  Those orders included that the estate pay Ms Groundwater’s costs of the application.
  13. [16]
    Ms Groundwater was paid the capital sum of $200,000.00 and was paid her costs.  However, those amounts were only paid after disagreement had arisen as to the conduct of the administration of the estate by Matthew.
  14. [17]
    By proceeding BS 4098 of 2018 (the 2018 proceeding), Ms Groundwater made application for various orders including the removal of Matthew as executor.  She also sought the revocation of the grant of probate made to him as well as a grant of letters of administration to Ms Parsons, who is a solicitor.  
  15. [18]
    On 3 May 2018, Douglas J made orders revoking the probate granted to Matthew and appointing Ms Parsons as administrator.  Other orders were made so as to carry out the removal of Matthew as executor and the appointment of Ms Parsons as administrator.
  16. [19]
    One of the incidental orders made by his Honour was a declaration in these terms:

“It is declared that the Applicant[5] has an equitable interest in Unit 10, Condor Apartments, 2 Riverview Parade, Surfers Paradise in Queensland more particularly described as lot 50, BUP 1922, title reference 15430100 arising pursuant to order of the Supreme Court of Queensland dated 15 March 2017 in proceedings number 4245 of 2016[6] per order 1(c).  Paragraph 1(c) of the order made by Applegarth J in the 2016 proceedings on 15 March 2017 contains one item of the further provision made for Ms Groundwater.  Order 1(c) is:

  1. (c)
    By way of a right to reside in the property at Unit 10D Condor Apartments, 2 Riverview Parade, Surfers Paradise in Queensland for the term of her life with the payment of all Body Corporate fees and Council and Water Rates in respect of that property to be paid from the estate of the Deceased.”
  1. [20]
    After her appointment as administrator, Ms Parsons proceeded to conduct investigations into the estate and its management.  Those investigations revealed:
    1. (a)
      the estate had been wasted;
    2. (b)
      the Condor unit is the only asset of the estate apart from causes of action against various parties, as later explained; and
    3. (c)
      there is no capacity of the estate to make provision for Ms Groundwater pursuant to the order of 15 March 2017, beyond what has already been done.  In particular, the estate does not have the capacity to pay Ms Groundwater $400 per week and does not have the capacity to maintain the Condor unit.
  2. [21]
    Ms Parsons made allegations against Matthew and a company controlled by him, East Land 5 Pty Ltd (EL5).  It is unnecessary to go into the details of the claim which Ms Parsons has against Matthew and EL5.  Suffice to say that she alleged that Matthew misappropriated a significant sum of money through a web of companies controlled by him.  He, and the companies also, it seemed, paid expenses on behalf of the estate but the total misappropriated well exceeded a million dollars.
  1. [22]
    After the allegations were made, Ms Parsons entered into negotiations with Matthew and EL5 and she secured a settlement evidenced by a deed that has now been executed by the parties.  The deed is conditional upon Ms Parsons receiving judicial advice and directions[7] “that she would be justified in entering into, performing and enforcing the performance of this deed in compromise of the claims [against Matthew and EL5]”.[8]
  2. [23]
    By other terms of the deed:
    1. (a)
      Matthew and EL5 agree to pay a sum representing the total amount misapplied by Matthew[9] while he held the office of executor (the settlement sum);
    2. (b)
      Matthew and EL5 are to pay interest at a commercial rate while any part of the settlement sum remains outstanding;
    3. (c)
      all money is to be paid by 1 May 2020;
    4. (d)
      the debt is secured by a charge over all the assets of Matthew; and
    5. (e)
      in the event of default or 29 December 2019, whichever is earlier, all assets of EL5 are charged with the debt.
  3. [24]
    Of some significance to the present application is clause 5 of the deed.  That is in these terms:

 “5.  DEFAULT

  1. (a)
    On the occurrence of an Event of Default the parties agree that:
  1. (i)
    the outstanding balance of all amounts payable pursuant to this Deed will immediately be due and payable to the Estate; and
  2. (ii)
    interest will then accrue on the outstanding balance of amounts payable pursuant to this Deed at the rate of fifteen percent (15%) per annum until the date of payment in full; and
  3. (iii)
    in addition to any other amounts due and payable pursuant to this Deed, Matthew and EL5, jointly and severally, agree to pay the Administrator’s costs, expenses and outgoings on a full indemnity basis, howsoever arising in respect of, or in connection with the Event of default including but not limited to:
  1. (A)
    the legal costs of and incidental to enforcement of this Deed and/or the Security (including stamp duties and registration fees);
  2. (B)
    that incurred in consequence of any Event of default by either or both of Matthew and/or EL5 in the due performance or observance of any covenant, term, condition or provision; and 
  1. (iv)
    the security will become immediately enforceable by the Administrator; and
  2. (v)
    at the election of the Administrator, the Administrator may commence proceedings to enforce this Deed and recover the outstanding balance owing pursuant to this Deed (together with the Administrator’s costs, expenses and outgoings on a full indemnity basis), and in the event of such proceedings being commenced:
    1. a certificate signed by the Administrator shall be conclusive evidence of the outstanding balance owing pursuant to this Deed as at the date of the certificate;
    2. Matthew and EL5 each consent to summary judgment being entered against them in respect of the outstanding balance owing pursuant to this Deed (together with the Administrator’s costs, expenses and outgoings on a full indemnity basis).
  1. (b)
    The parties agree that it is an Event of default under this Deed if any one or more of the following events occurs (and without the necessity for any prior notice of demand to be given):
    1. if default is made by Matthew and/or EL5 in due and punctual payment of any or all of the payments set out in clause 4(c) and/or clause 4(d);
    2. if Matthew and/or EL5 defaults in any aspect of performance of any term, condition, covenant, warranty or undertaking on the part of Matthew and/or EL5 contained in this Deed;
    3. if Matthew and/or EL5 claims or it is held in a Court of competent jurisdiction that the provisions of this Deed are void or unenforceable;
    4. if any warranty or representation given by Matthew and/or by EL5 pursuant to this Deed is or proves to be inaccurate;
    5. if Matthew becomes Insolvent or dies or commits an act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth);
    6. if EL5 becomes Insolvent or an investigation is commenced or proposed to be commenced in respect of it (or any officer of it) pursuant to Part 3 of the Australian Securities and Investments Commission Act (Cth).
  2. (c)
    The parties further agree that any default by Matthew in payment of his obligations to the Administrator under clause 4(d) hereof will not trigger a default by EL5 under its obligation to pay the amounts referred to in paragraphs 4(c) hereof and cannot be relied upon by the Administrator to take default action against EL5 if EL5 has complied with its obligations at that time to make the payments due under paragraph 4(c).”
  1. [25]
    The deceased and his wife Margaret Robinson (Margaret) were registered proprietors as joint tenants in a property situated at Alidenes Road, Mullumbimby (the Mullumbimby property).  
  2. [26]
    The deceased’s marriage to Margaret failed and orders concerning the division of matrimonial property were made by the Family Court in 1994.
  3. [27]
    Those orders included orders concerning the Mullumbimby property.  The orders are complicated and explained in full in the statement of facts.[10]  In essence, the property was to be subdivided and if that did not occur by a particular date, then the property was to be sold and the net proceeds divided between the deceased and Margaret.
  4. [28]
    The Mullumbimby property was still registered in the name of the deceased and Margaret at the time of the deceased’s death.  It had by that point not been subdivided.  Margaret registered a record of the deceased’s death, which by the doctrine of survivorship, caused her to become the sole owner of the property.  She then sold it and paid part of the proceeds to each of her sons, Scott and Kirk.
  1. [29]
    Counsel’s advice has been received by Ms Parsons to the effect that there is an arguable case that the joint tenancy was severed before the deceased’s death, and that the proceeds of sale should have flowed to the estate and not to Margaret and then to her two sons, Scott and Kirk.

What Ms Parsons seeks to achieve

  1. [30]
    Ms Parsons sought orders in both the 2016 application and the 2018 application.  
  2. [31]
    In the 2016 application, she sought the following orders:

“1.  pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld), Carla Parsons as administrator of the estate of James Francis David Robinson, deceased, be substituted as the respondent in the proceeding in lieu of Matthew Karl Robinson as executor of James Francis David Robinson, deceased;

  1. pursuant to r 667(2)(e) of the Uniform Civil Procedure Rules, paragraphs 1(b) and (c) of the orders of Applegarth J made on 15 March 2017 be set aside;

 3.  the costs of:

  1. (a)
    Carla Parsons as administrator of the estate of James Francis David Robinson, deceased;
  1. (b)
    the applicant;
  2. (c)
    Prudence Poole as litigation guardian for Oliver Robinson, Talia Robinson, Thor William James Robinson and Rueben John Robinson,

be paid out of the estate of the deceased on the indemnity basis.”

  1. [32]
    In the 2018 application, she sought the following orders:

“1. pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld), Carla Parsons as administrator and trustee of the estate and will trusts of James Francis David Robinson, deceased, be joined as the second respondent in the proceeding;

  1. pursuant to r 667(2)(e) of the Uniform Civil Procedure Rules, paragraph 11 of the orders of Douglas J made on 3 May 2018 be set aside;
  2. pursuant to s 127 of the Land Title Act 1994 (Qld), caveat number 718754672 registered by the applicant over the property of the deceased situated at Unit 10, Condor Apartments, 2 Riverview Parade, Surfers Paradise in the State of Queensland, more particularly described as Lot 50 on BUP1922, Title Reference 15430100 (Condor unit), be removed;
  3. pursuant to s 96 of the Trusts Act 1973 (Qld), the second respondent is advised and directed that she would be justified in taking the following steps:
    1. (a)
      selling the Condor unit;
    2. (b)
      paying from the net proceeds of sale of the Condor unit:
      1. (i)
        all overdue and current body corporate levies for the Condor unit;
      2. (ii)
        all overdue and current Gold Coast City Council water rates for the Condor unit;
      3. (iii)
        all overdue and current Gold Coast City Council rates for the Condor unit;
      4. (iv)
        costs ordered to be paid to the applicant pursuant to paragraph 2 of the consent orders of Burns J made in proceeding S 8079 of 2017 on 1 September 2017 (as agreed or assessed);
  1. (v)
    costs ordered to be paid to the applicant pursuant to paragraph 12 of the orders of Douglas J made on 3 May 2018 (as agreed or assessed);
  2. (vi)
    remuneration charged by the second respondent in accordance with paragraph 7 of the orders of Douglas J made on 3 May 2018;
  3. (vii)
    such further or other administration expenses, legal costs and outlays incurred by the second respondent or for which she becomes liable in the course of the administration of the deceased’s estate, including:
    1. (A)
      legal costs and outlays she incurs in commencing and prosecuting the proceedings referred to in paragraphs 4(c) and (e) herein;
    2. (B)
      subject to further order, any costs she may be ordered to pay in the proceedings referred to in paragraphs 4(c) and (e) herein;
  1. (c)
    subject to the estate having sufficient available funds to:
    1. (i)
      pay the administrator’s remuneration and indemnify the administrator against the reasonable costs and outlays incurred by her in the proposed proceedings referred to in sub-paragraphs (iii) and (iv) herein; and
    2. (ii)
      subject to any further order of the court, indemnify the administrator against any costs order that may be made against her in the proposed proceedings referred to in sub-paragraphs (iii) and (iv) herein,

commencing, and until the completion of disclosure therein, prosecuting:

  1. (iii)
    a proceeding in the court against Matthew Karl Robinson and East Land 5 Pty Ltd as defendants in respect of the claims referred to in paragraphs 34 to 118 of the statement of facts which is exhibit CP2 to the affidavit of Carla Parsons sworn 23 October 2019 (statement of facts);
  2. (iv)
    a proceeding in a court of competent jurisdiction in New South Wales against Matthew Karl Robinson, Margaret Lorraine Robinson, Scott James Francis Robinson and/or Kirk William Francis Robinson as defendants in respect of the claims referred to in paragraphs 72 to 92, 120 and 121 of the statement of facts;
  1. (d)
    compromising the claims in the proposed proceeding referred to in paragraph 4(c) herein generally in accordance with the deed of settlement dated 4 October 2019 which is exhibit CP3, pages 476 to 506, of the affidavit of Carla Parsons sworn 23 October 2019;
    1. (e)paying to:
    2. (i)Oliver Robinson;
    3. (ii)Talia Robinson (in the will of the deceased dated 6 November 2008 referred to as sister to Oliver Robinson);
    4. (iii)Shannen Robinson (in the will referred to as Shannon Robinson);
  1. (iv)
    Chance Robinson;
  2. (v)
    Rueben John Robinson (in the will referred to as Ruben Robinson);
  3. (vi)
    Thor William James Robinson (in the will referred to as Thor Robinson);
  4. (vii)
    Erin Pearl Robinson (in the will referred to as Pearl Robinson);
  1. (viii)
    Grace Robinson, the amounts held by the second respondent as trustee on trust for them upon them respectively attaining the age of twentyfive years;
  1. (f)
    if the applicant makes an application to the court under s 42 of the Succession Act 1981 (Qld) in proceeding S 4245 of 2016 for the further provision made for her proper maintenance and support from the deceased’s estate in paragraphs 1(b) and (c) of the orders made by Justice Applegarth on 15 March 2017 to be varied, to pay to the applicant the varied provision and any further costs ordered by the court to be paid by the deceased’s estate to Gail Groundwater;
  2. (g)
    as trustee of the will trusts of the deceased, paying from the funds held by her on trust for Oliver Robinson, Talia Robinson, Rueben John Robinson and Thor William Robinson the costs and outlays, on the indemnity basis, of Prudence Poole as litigation guardian;
  1. the costs of:
  1. (a)
    the second respondent;
  2. (b)
    the applicant;
  3. (c)
    Prudence Poole as litigation guardian for Oliver Robinson, Talia Robinson, Thor William James Robinson and Rueben John Robinson, be paid out of the estate of the deceased on the indemnity basis;
  1. the memorandum of advice of Mr Otto of Counsel be placed in a sealed envelope on the court file marked ‘Not to be opened without an order of the court’.”
  1. [33]
    These proposed orders are designed to facilitate a broad plan which Ms Parsons has devised to administer the estate.  It is necessary to summarise that plan in order to understand why the applications were framed in the way they were.
  2. [34]
    Apart from causes of action against Matthew, Margaret, Scott and Kirk, the Condor unit is the only valuable asset of the estate and there are significant liabilities.  It is impossible for the estate at present to meet the commitments to Ms Groundwater pursuant to her family provision orders.  Therefore, Ms Parsons wishes to sell the Condor unit and settle with Matthew so that the estate can meet its liabilities and also fund taking action against Margaret, Scott and Kirk in relation to the estate’s claims on the proceeds of the sale of the Mullumbimby property.
  3. [35]
    In order to achieve the sale of the Condor property, Ms Parsons must have the family provision orders made by Applegarth J (as they affect the Condor unit) dissolved.  She must also have Ms Groundwater’s caveat removed and the declaration made by Douglas J (that Ms Groundwater has a proprietary interest in the Condor unit) dissolved.
  4. [36]
    She then seeks the protection of s 96 of the Trusts Act before embarking upon the settlement with Matthew and the proceedings against Margaret, Scott and Kirk.
  5. [37]
    Ms Parsons seeks other orders but they are all designed to achieve her broad purposes as I have explained them.

The attitude of the other parties 

  1. [38]
    Ms Groundwater, for whom Mr Dickson of counsel appeared, accepts that the estate cannot fulfil the requirements of the orders made by Applegarth J for her provision from the estate.  She supports the course of action proposed by Ms Parsons.  She consents to the setting aside of the relevant orders made by Applegarth J.  She also consents to the dissolution of the declaration made by Douglas J that she has a proprietary interest in Condor.  She also consents to the removal of her caveat.
  2. [39]
    Ms Groundwater intends to monitor the progress of steps which Ms Parsons intends to take against Matthew, Margaret, Scott and Kirk and, depending upon Ms Parsons’ success or otherwise, she may then seek further provision from the estate.  She will do this, she submits, by seeking orders varying the orders made by Applegarth J.[11]
  3. [40]
    Matthew, represented on the applications by Mr Crowther, solicitor, only opposes the application in one respect.  He submits that given that there has been a compromise of the estate’s claims against Matthew, and given that compromise involves complete restitution by Matthew to the estate, any judicial advice or directions to Ms Parsons would be to pursue the compromise rather than to sue Matthew.  Mr Crowther objected then to advice and directions being given in terms of paragraph 4(c)(iii) of the application.  For reasons I later explain, Mr Crowther’s submission ought to be accepted.
  4. [41]
    The four infant beneficiaries were represented by Ms Rae of counsel on the applications.  The applications were not opposed by the infant beneficiaries.  However, Ms Rae sought directions to Ms Parsons as trustee of the infant beneficiaries’ trust accounts to pay the infant beneficiaries’ legal costs.  For reasons I will later explain, that submission ought to be accepted.
  5. [42]
    Kirk did not appear on the applications and did not file written submissions.  Both Margaret and Scott[12] appeared and made oral submissions.  They only had an interest in the application as it relates to the Mullumbimby property and Ms Parsons’ potential action against them.
  6. [43]
    Margaret and Scott did not make submissions which I considered were relevant to the applications before me.  Their position was that they were not liable to the estate.  In other words, their submissions were that if Ms Parsons sued them, she would be unsuccessful.  There was nothing though to suggest that either Margaret or Scott had a complete or obvious answer to Ms Parsons’ claims.  Had they been in a position to demonstrate that Ms Parsons did not have a prima facie case against them, then that may have been relevant to the determination of what advice and directions are given to Ms Parsons.
  7. [44]
    I say “might be relevant” because Mr Otto of counsel for Ms Parsons submitted that neither Margaret nor Scott had a right to either appear or be heard on Ms Parsons’ application for directions concerning claims against them.  Mr Otto may be right about that, but it is unnecessary to determine that point because, as I have said, neither Margaret nor Scott made relevant submissions.
  8. [45]
    Issues of privilege arise in relation to legal advice which Ms Parsons received.  It was unnecessary to deal with those issues other than:
    1. (a)
      the written legal advice which was received by Ms Parsons, a copy of which was tendered, shall be ordered to be sealed in an envelope and not to be opened without further order; and
    2. (b)
      parts of the statement of facts upon which the application pursuant to s 96 of the Trusts Act was based have been redacted.

The service of the application

  1. [46]
    There are a number of beneficiaries who have not been located and served with the application.
  2. [47]
    The orders sought by Ms Parsons fall into various categories:
    1. (a)
      unwinding the family provision orders;
    2. (b)
      advice and directions pursuant to s 96 of the Trusts Act; and
    3. (c)
      various procedural orders.
  3. [48]
    Only Ms Parsons and Ms Groundwater have any real interest in the family provision orders being set aside.  The procedural orders are ones that obviously should be made.
  4. [49]
    Section 96(2) of the Trusts Act provides:

 96  Right of trustee to apply to court for directions

  1. (2)
    Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.”
  1. [50]
    In MTM Funds Management Ltd v Cabalane Holdings Pty Ltd,[13] Austin J thought the test as to when to proceed in the absence of service of all interested parties to a trustee’s application for advice and directions was whether “the giving of advice might operate unfairly as regards a person not before [the court]”.[14]  Here the advice and directions sought authorise the administrator of an insolvent estate to recoup moneys and repair the damage done by an incompetent (at best) executor and parties who have (at least arguably) made off with assets of the estate.  Parties who may be the target of the proposed litigation have appeared.  Others surely may only benefit from the administrator’s proposed actions.
  2. [51]
    I will determine the application without further parties being served.

Judicial advice and directions

  1. [52]
    If a trustee either prosecutes or defends litigation without first receiving judicial advice and direction, the trustee may be personally exposed to the costs of the litigation.  Seeking judicial advice and direction before prosecuting or defending a litigation may not be a legal imperative but is certainly a wise and sensible step for a trustee to take.[15]
  2. [53]
    It is impossible on such an application for the court to determine whether the contemplated proceedings will be successful or, depending upon the circumstances, proceedings that have been instituted can be successfully defended.  The issue is whether, having regard to the facts and circumstances as they appear at the time the application is heard, it is proper for the trustee to prosecute, or defend the proceedings, as the case may be.[16]
  3. [54]
    As against Matthew, advice is sought:
    1. (a)
      to commence proceedings against him and EL5;[17] and 
    2. (b)
      also to compromise the claims against him in terms of the deed of settlement that has been executed.
  4. [55]
    Mr Crowther, who appears for Matthew, says that the only advice that should be given is to enter into the compromise and not to proceed against his client.
  5. [56]
    There has been some dispute as to the quantum of Matthew’s liability to the estate.  The settlement deed represents an effective reinstatement of the trust by Matthew.
  6. [57]
    Matthew is arguably liable, along with Margaret, Scott and Kirk, to the estate for the loss of the proceeds of sale of the Mullumbimby property.  The deed of settlement does not affect these claims against Matthew or absolve him from liability.
  7. [58]
    Mr Otto, for Ms Parsons, presses for the direction authorising proceedings to be issued by Ms Parsons against Matthew on the basis that the terms of the settlement deed have as yet not been fulfilled.  Therefore, he submitted, it may be necessary to commence proceedings against Matthew.
  8. [59]
    Contained within the settlement deed are, as previously observed, extensive provisions which operate upon default.  They include a right in Ms Parsons to sue for a liquidated sum being the sum outstanding and unpaid after default.  It is difficult to imagine any circumstances where it would be sensible for Ms Parsons to rescind the settlement agreement and then issue proceedings on the previously compromised cause of action where she would need to prove the misappropriation of the various funds.  Surely, her better course would be to sue on the deed.
  9. [60]
    I will advise and direct that she may enter into the deed of compromise but will not advise and direct that she issue proceedings against Matthew and EL5 in relation to the misappropriation of funds.
  10. [61]
    If Matthew does not honour his obligations under the deed, then Ms Parsons may well file another application seeking advice and directions to sue him.  Most likely she would seek advice to sue on the deed, but that is not a matter for now.
  11. [62]
    The joint tenancy in relation to the Mullumbimby property was arguably severed with the result that the deceased’s interests fell to the estate.  Margaret then sold the property and arguably misapplied the proceeds of sale to her sons, Scott and Kirk.  Having regard to all the material, including the confidential memorandum of advice of Mr Otto of Counsel, it is in the interests of the estate that proceedings be commenced against Kirk, Scott, Margaret and Matthew and I will so advise and direct.

The procedural orders

[63]  It is appropriate that Ms Parsons be joined as a party to each of the 2016 proceeding and the 2018 application.

The orders unwinding the family maintenance orders

[64]  As already observed, only Ms Parsons and Ms Groundwater have any real interest in this. They both seek orders setting aside the orders of Applegarth J made on 15 March 2017, paragraph 11 of the orders of Douglas J made on 3 May 2018 and the removal of the caveat over the Condor unit. I will make those orders.

Costs

  1. [65]
    As to the 2016 application, it is appropriate that Ms Parsons, Ms Groundwater and the Litigation Guardian for the infant beneficiaries all have their costs paid from the estate on an indemnity basis.
  2. [66]
    As to the 2018 application, the same applies.
  3. [67]
    At present, there are no funds in the estate to pay the costs.  There are funds held in the separate trust accounts for the infant beneficiaries.  It is appropriate to authorise the payment of the Litigation Guardian from those funds.

Orders

[68]  I make orders in terms set out in Schedules 2 and 3.

“SCHEDULE 1”

SUPREME COURT OF QUEENSLAND

 REGISTRY:  BRISBANE

 NUMBER:  S 4098 of 2018

Applicant:

GAIL GROUNDWATER

 

AND

Respondent:

 

MATTHEW KARL ROBINSON AS EXECUTOR OF THE

WILL OF JAMES FRANCIS DAVID ROBINSON, DECEASED

STATEMENT OF FACTS

Introduction

  1. James Francis David Robinson died on 30 July 2015 aged 82 years.
  2. The deceased was survived by:
    1. (a)
      his ex-wife, Margaret Lorraine Robinson (Margaret).  The deceased and Margaret were divorced in the early 1990s and the Family Court of Australia made property settlement orders by consent on 1 February 1994;
    2. (b)
      his de facto partner, Gail Groundwater (Gail).  The deceased and Gail were in a de facto relationship for a period of 18 years ending on his death;
    3. (c)
      his three sons with Margaret:
      1. Scott James Francis Robinson (also known as James Francis Scott Robinson) (Scott);
      2. Kirk William Francis Robinson (Kirk); (iii) Matthew Karl Francis Robinson (Matthew);
    4. (d)
      grandchildren and great-grandchildren.

A family tree is annexed to this statement of facts (Annexure, volume 2, part 1, page 1).

  1. By his last will dated 6 November 2008, the deceased:
    1. (a)
      appointed Matthew and his friend, David Chalk, to be his executors.  David Chalk renounced office as executor and probate of the will was on 2 February 2016 granted to Matthew as executor (Annexure, volume 2, part 1, pages 2-5);
    2. (b)
      gave $7,500 to David Chalk;
    3. (c)
      gave his 1961 Valiant motor vehicle to Margaret.  I have been unable to ascertain whether the deceased owned this vehicle at the date of his death;
    4. (d)
      gave his yacht, “Koala II”, to Camp Quality Limited (Camp Quality).  The deceased did not own this yacht at the date of his death;
    5. (e)
      gave his residuary estate to those of the following persons who survived him and attained the age of 25 years, and the following charity, in the following shares:

 

Beneficiary

Age

Share of residue

Contact details

  1. (i)
     

his granddaughter, Kasia Robinson

Adult

20%

Yes

  1. (ii)
     

his great-grandson, Oliver Robinson

6.11.03

2%

Yes

  1. (iii)
     

his great-granddaughter, Talia Robinson

12.07.05

2%

Yes

  1. (iv)
     

his grandson, Shannen Robinson

3.11.94

4%

No

  1. (v)
     

his grandson, Chance Robinson

3.11.94

4%

No

  1. (vi)
     

his grandson, William Kirk Robinson

15.4.92

12%

No

  1. (vii)
     

his son, Scott

Adult (58)

4%

No

  1. (viii)
     

his son, Kirk

14.8.61

4%

Yes

  1. (ix)
     

his son, Matthew

4.10.64

5%

Yes

  1. (x)
     

his grandson, Tom Robinson

2.5.88

3%

Yes

(xi)

his granddaughter, Grace Robinson

7.12.93

5%

Yes

(xii)

his granddaughter, Erin Pearl Robinson

29.9.00

5%

Yes

(xiii)

his grandson, James Daine Robinson

Not known

4%

No

(xiv)

his grandson, Thor William James Robinson

15.11.04

4%

Yes

(xv)

his grandson, Rueben John Robinson

1.12.06

4%

Yes

(xvi)

his granddaughter, Bonnie Ann Robinson

22.1.90

3%

Yes

(xvii)

his friend, Lena Ring

 

3%

No

(xviii)

his de facto partner (described in his will as his “friend”), Gail

 

1%

Yes

(xix)

his friend, Ann Halliday

 

1%

No

(xx)

Camp Quality

 

10%

Yes

    

100.00%

 

  1. (f)
    provided that in the event that any of the residuary shares fail because a beneficiary fails to attain a vested interest, that share is to be added equally to the other shares which have not then failed.
  1. In the table in paragraph 3 above, I have identified:
    1. (a)
      to the extent that I am aware, the ages of the beneficiaries.  Four of the beneficiaries are aged under 18 years, namely Oliver, Talia, Rueben and Thor;
    2. (b)
      whether or not I have contact details for the beneficiaries.

I have no contact information for Lena Ring and Ann Halliday and have been unable to ascertain their whereabouts.  The former executor informed his then solicitors, Cronin Shearer Lawyers, of his belief that Ann Halliday had died.

  1. From my examination of the papers provided to me upon my appointment, at the date of his death, the deceased’s estate comprised the following assets and liabilities, and had a net value of $2,258,520.98:

 Assets

Estimated value

Unit 10D, The Condor, 2 Riverview Parade, Surfers Paradise QLD

$375,000.00

66 Poinciana Boulevard, Broadbeach Waters, QLD

$675,000.00

½ share in Wilsons Creek Road, Mullumbimby, NSW

$382,000.00

National Australia Bank Accounts

$130,084.51

Suncorp Bank Account – Plus 55 – 503 310825

$24,766.13

Robbo Super Fund – 523 201 155

$416,917.95

Robbo Super Fund – 003 134 059

$1,497.75

Boat – Escapade Jenneau 45.2 2001

$125,000.00

Telstra Shares

$102,961.14

NAB Shares

$71,543.29

CYBG PLC Shares

$2,747.20

Motor Vehicle – Ford Fairlaine 2005 – 405-TWD

$3,800.00

Motor Vehicle – Ford Falcon (unregistered) – 299-KGC

$500.00

Refund APIA Insurance

$216.76

Contents and personal effects

Nominal value

 

$2,312,034.73

Liabilities

 

Mortgage on Unit 10D, The Condor, 2 Riverview Parade, Surfers Paradise QLD

$39,003.02

Michael Currie Funerals

$9,871.00

Goldstein Kneijber & Associates Pty Ltd (Accountants)

$1,694.00

Electricity – Mullumbimby

$184.82

Swimart Bundall

$44.00

Southport Yacht Club

$1,502.89

Gold Coast City Council (the Broadbeach property)

$328.15

Insurance Advisernet Australia (Boat)

$275.00

Origin (the Broadbeach property)

$610.87

 

$53,513.75

  1. On 3 May 2018, Douglas J made orders in this proceeding which, inter alia:
    1. (a)
      removed Matthew as executor and revoking the grant of probate made to him.  In this statement of facts, I will refer to Matthew in his representative capacity as the former executor;
    2. (b)
      granted letters of administration with the will to me.
  2. Since my appointment as administrator, I have:
    1. (a)
      obtained and examined information in relation to the deceased’s estate, in summary comprising: 
      1. the file of Cronin Shearer Lawyers (who previously acted for the former executor in the administration of the deceased’s estate until in or about July 2016);
      2. the file of Evans Lawyers (who previously acted for the former executor in the administration of the deceased’s estate and litigation against the estate and litigation against the former executor somewhere between late 2017 to early 2018);
      3. the file of Whitehead Crowther Lawyers (who previously (and currently) act/ed for the former executor in the administration of the deceased’s estate and litigation against the estate and litigation against the former executor);
      4. retrieved bank records (Statements, vouchers etc) from Suncorp Bank in respect to the Account opened with that bank by the former executor in his name as Trustee;
      5. retrieved bank records (Statements) from Suncorp Bank in respect to the various accounts opened with that bank by Matthew in his name as Trustee for a number of minor beneficiaries of the Estate;
      6. requested and/or retrieved information from a number of other third parties, including Attwood Marshall Lawyers, Clarke Kann Lawyers, Hickey Lawyers, Anthony Delaney Lawyers, Goldstein Kneijber Accountants, Morgans, Body Corporate Services and the Gold Coast City Council;
      7. conducted various searches through land titles offices in multiple states and in respect to ASIC registers and records for various companies;
      8. obtained a valuation of the estate property located at Unit 10D The Condor, 2 Riverview Parade, Surfers Paradise, Queensland (the Condor Unit); and
      9. sought information, vouchers and documents from Whitehead Crowther Lawyers, who currently act on behalf of the former executor.
    2. (b)
      using the information obtained by me, prepared a retrospective account of the estate administration (Annexure, volume 2, part 1, pages 6-17);
    3. (c)
      identified transactions that occurred during the administration of the estate by the former executor which give rise to concern that he committed breaches of duty which have caused loss to the estate (identified transactions);
    4. (d)
      investigated the identified transactions;
    5. (e)
      obtained counsel’s advice in relation to the identified transactions and claims that the estate may be able to pursue against the former executor or others to recover its property and/or any loss it has suffered as a result of the identified transactions;
    6. (f)
      corresponded with the solicitors acting for the former executor, Whitehead Crowther, in an attempt to resolve the estate’s claims against the former executor;
    7. (g)
      attempted to hold off creditors of the estate who have pressed for payment of their debts;
    8. (h)
      prepared and made this application seeking judicial advice and directions as to the future steps I should take as administrator.
  3. I refer to the result of my investigations in relation to the identified transactions in more detail below.  
  4. By the time of my appointment on 18 May 2018: 
    1. (a)
      the only assets of the estate that were available to me as administrator were:
      1. the Condor Unit.  The Condor Unit has an estimated value of $390,000.  By his order of 3 May 2018, Douglas J declared that Gail has an equitable interest in the Condor Unit arising by virtue of the lifetime right to reside conferred on her by an order made by Applegarth J on 15 March 2017 in a family provision application which Gail made against the former executor.  On 18 May 2018, Gail lodged a caveat over the Condor Unit to protect her interest.  As a result of the orders of Applegarth J and Douglas J, and Gail’s caveat, I have so far been unable to sell the Condor Unit to raise funds for the administration of the estate, including to pay creditors of the estate;
      2. $242.83 in the estate’s Suncorp bank account; and
      3. $94.70 in the trust account of Evans Lawyers.
    2. (b)
      the liabilities of the estate were: 
      1. $1,554.76 being Gold Coast City Council Water Rates for the Condor Unit;
      2. $5,526.20 being Gold Coast City Council Rates for the Condor Unit;
      3. $23,393.78 being Body Corporate Levies for the Condor Unit;
      4. $50,096.24 being tendered indemnity costs for Gail’s Lawyers for the first removal application;
      5. unquantified indemnity costs for Gail’s Lawyers for the second removal application;
      6. $800.00 (2 weeks of weekly stipend due to Gail); and
      7. unquantified tax liabilities and accounting fees.
  5. As at the date of this statement of facts, the assets and liabilities of the estate are as follows:

Assets

Estimated value

Condor Unit

$390,000.00

Funds held in Parsons Law Trust Account

$332.53

Credit with Condor Apartments Body Corporate

$2,443.91

 

$392,776.44

Liabilities

 

Overdue weekly payments due to Gail pursuant to Applegarth J’s order

$28,800.00

Costs payable to Gail pursuant to Burns J’s order and Douglas J’s order

$106,665.54

Gold Coast City Council Water Rates as at 26 August 2019

$2,512.44

Accounting fees and tax liabilities

TBC

Administrator’s remuneration, costs and outlays as at 30 September 2019

$200,421.58

 

$338,399.56

  1. I have not included as assets in the above table the claims that the estate may have against the former executor and others in relation to the identified transactions or the funds held in the Trust Account of Parsons Law pending a Court order regarding release of the same.

The former executor’s administration

  1. In order to introduce the identified transactions, it is necessary to outline the steps taken by the former executor in relation to the administration of the estate.
  2. Having regard to the assets and liabilities of the estate identified in the table in paragraph 5 above:
    1. (a)
      On 17 February 2016, the former executor procured the transmission of the Condor Unit into his name as executor.  The Condor Unit was the home in which the deceased and Gail lived until his death.  It has remained Gail’s home since his death;
    2. (b)
      The deceased’s shares were sold in February 2016, realising net proceeds of $176,981.63, which were paid to the trust account of the solicitors then acting for the former executor, Cronin Shearer, on behalf of the estate;
    3. (c)
      The former executor collected the deceased’s Suncorp and NAB bank accounts and discharged the NAB mortgage over the Condor Unit.  The net amount of $117,418.43 was received in two payments on 22 and 25 February 2016 to Cronin Shearer’s trust account on behalf of the estate;
    4. (d)
      On 31 March 2016, the former executor sold the Broadbeach property.  On settlement of the sale on 31 March 2016, net proceeds of $662,297.40 were received and paid to Cronin Shearer’s trust account on behalf of the estate;
    5. (e)
      The former executor also collected the deceased’s superannuation death benefit from the Robbo Super Fund.  The net amount of $418,415.70 was received on 6 May 2016 and paid to the estate’s Suncorp account; 
    6. (f)
      In or about October 2016, the former executor sold the deceased’s yacht, “Escapade”.  The net proceeds of sale of $115,613.56 were on 11 October 2016 paid to the trust account of the solicitors then acting for the former executor, Evans Lawyers;
    7. (g)
      The former executor sold the deceased’s motor vehicles and other miscellaneous items of property of minimal value;
    8. (h)
      The Former executor paid various estate liabilities, excluding legal fees but including:
    9. (i)
      selling expenses associated with the Broadbeach property totalling $14,769.95
      1. boat mooring expenses totalling $9,204.89;
      2. boat related expenses totalling $19,761.22;
      3. Goldsteins Kneijber & Associates Superannuation accounting fees in the amount of $1,694.00;
      4. rates and water expenses totalling $8,934.06;
      5. body corporate levies for the Condor Unit totalling $5,697.22.
  3. In summary:
    1. (a)
      by May 2016, the former executor had collected $1,379,129.92;
    2. (b)
      by October 2016, he had collected a further $115,613.56 (bringing the total amount collected to $1,494,743.48);
    3. (c)
      the former executor paid liabilities of $84,715.78 (excluding legal costs and outlays).
  4. On or about 9 May 2016 (a few days after the deceased’s superannuation death benefit was collected), the former executor made an “interim distribution” to some, but not all, of the residuary beneficiaries, as follows:

 

Beneficiary

Interim distribution

Held on trust until 25

Current balance of trust account

  1. (a)
     

Kasia Robinson

$40,000

No

N/A

  1. (b)
     

Oliver Ian Robinson

$4,000

Yes

$4,201.72

  1. (c)
     

Talia Lynn Pearl Robinson

$4,000

Yes

$4,201.72

  1. (d)
     

Shannen Charles Robinson

$8,000

Yes

$8,293.06

  1. (e)
     

Chance Frederick Robinson

$8,000

Yes

$8,293.06

  1. (f)
     

William Kirk Robinson

$24,000

Yes

$12.27

  1. (g)
     

James

$8,000

No

N/A

  1. (h)
     

Kirk

$8,000

No

N/A

  1. (i)
     

Matthew

Nil

No

N/A

  1. (j)
     

Tom Robinson

$6,000

No

N/A

(k)

Grace Robinson

$10,000

Yes

$10,346.40

(l)

Erin Pearl Robinson

$10,000

Yes

$10,311.11

(m)

James Daine Robinson

$8,000

No

N/A

(n)

Thor Robinson

$8,000

Yes

$8,293.06

(o)

Rueben John Robinson

$8,000

Yes

$8,293.06

(p)

Bonnie Robinson

$6,000

No

N/A

(q)

Lena Ring

Nil

No

N/A

 

Beneficiary

Interim distribution

Held on trust until 25

Current balance of trust account

(r)

Gail

$2,000

No

N/A

(s)

Ann Halliday

Nil

No

N/A

(t)

Camp Quality

$20,000

No

N/A

 

 

$182,000

 

 

  1. The former executor opened trust accounts in his name at Suncorp for each of the beneficiaries referred to in the table in paragraph 15 above aged under 25 (beneficiaries’ trust accounts).  Since my appointment: 
    1. (a)
      I have caused each of the beneficiaries’ trust accounts to be transferred to me as trustee;
    2. (b)
      Grace has attained the age of 25 and requested payment of the balance of her beneficiaries’ trust account, but given the issues affecting the administration of the estate that are referred to in this statement of facts, I have refrained from making payment to her.
  2. The pecuniary legacy of $7,500 to David Chalk has not been paid.

Gail’s family provision application

  1. On 28 April 2016, Gail filed an application in proceeding S 4245 of 2016 seeking an order pursuant to s 41 of the Succession Act 1981 (Qld) making further and better provision for her proper maintenance and support out of the deceased’s estate (FPA).
  2. In or about March 2017, Gail and the former executor agreed to settle Gail’s claim in the FPA (FPA settlement).
  3. On 15 March 2017, Applegarth J made final orders in the FPA to give effect to the FPA settlement (Applegarth J’s orders) (Annexure, volume 2, part 1, page 18).  Pursuant to Applegarth J’s orders:
    1. (a)
      further and better provision was made for Gail out of the estate by:
      1. the payment to her of $200,000 by 30 June 2017 (capital sum);
      2. the payment to her of $400 per week for the rest of her life (weekly sum);
      3. the granting to her of a right to reside in the Condor Unit for the rest of her life, with all body corporate fees, rates and water charges to be paid by the estate;
    2. (b)
      Gail’s costs of the FPA were fixed in the sum of $100,000 and payable out of the estate;
    3. (c)
      the former executor’s costs of the FPA were fixed in the sum of $75,000 and payable out of the estate.
  4. The former executor made irregular payment of the weekly sum to Gail between 15 March 2017 and 13 April 2018.  Over that time, Gail received $24,800 on account of the weekly sum payable under Applegarth J’s order, representing 62 weeks (Annexure, volume 2, part 1, pages 19-20).
  5. On 10 July 2017, the former executor personally (through his wife, Simone Holzapfel (who is also known as Simone Robinson)) paid $100,000 to Gail on account of her costs payable under Applegarth J’s order.  
  6. On 1 September 2017, the former executor personally (or a person or persons associated with him) paid $200,000 to Gail on account of the capital sum payable under Applegarth J’s order. 
  7. The payments referred to in paragraphs 22 and 23 above were made by the former executor personally (or a person or persons associated with him) because, as a result of the identified transactions, the estate did not at the time have any available funds to make the payments itself.  Matthew has accounted for these payments as payments made by him on behalf of the estate, in effect in repayment of the MFC payments to which I refer below.
  8. The former executor failed to pay body corporate fees, rates and water charges in relation to the

Condor unit as required by Applegarth J’s order.  As appears from paragraph 9(b) above, by the time of my appointment as administrator on 18 May 2018, the total amount outstanding on account of body corporate fees, rates and water charges in relation to the Condor unit was $30,474.74.

The removal of the former executor

  1. On 8 August 2017, Gail filed an originating application in proceeding S 8079 of 2017 seeking orders removing the former executor and revoking the grant of probate to him (first removal application). 

The first removal application was made on the grounds that the former executor had:

  1. (a)
    made irregular payment of the weekly sum to Gail;
  2. (b)
    failed to pay the capital sum to Gail by 30 June 2017;
  3. (c)
    failed to provide evidence that he had paid the body corporate fees, rates and water charges in relation to the Condor Unit;
  4. (d)
    failed to provide an account of his administration of the estate as requested by Gail’s solicitors, Attwood Marshall.
  1. The first removal application was adjourned and eventually heard on 1 September 2017.  By the time of the hearing, the former executor personally (or a person or persons associated with him) had paid $200,000 to Gail on account of the capital sum payable under Applegarth J’s order (see paragraph 23 above).
  2. On 1 September 2017, Burns J made an order:
    1. (a)
      on the undertaking of the former executor to the court that he would pay the weekly sum to

Gail for her lifetime and the body corporate fees, council and water rates in relation to the Condor Unit during the period that Gail resided there;

  1. (b)
    ordering that Gail’s costs of the first removal application be paid out of the estate on the indemnity basis;
  2. (c)
    otherwise dismissing the first removal application.

(Burns J’s order) (Annexure, volume 2, part 1, page 21).

  1. On 16 May 2018, Gail’s solicitors produced a costs statement quantifying her costs of the first removal application at $50,096.24.  I have included this sum as a liability of the estate in paragraph 10 above.
  2. The former executor incurred legal costs of $20,598.57 in relation to the first removal application with his solicitors, Evans Lawyers, which he charged to and paid out of the estate.
  3. On 17 April 2018, Gail filed an originating application in this proceeding seeking orders removing the former executor and revoking the grant of probate to him (second removal application).  The second removal application was made on grounds similar to the first removal application, namely that the former executor had:
    1. (a)
      made irregular payment of the weekly sum to Gail;
    2. (b)
      failed to pay the body corporate fees, rates and water charges in relation to the Condor Unit;
    3. (c)
      failed to provide an account of his administration of the estate.
  4. On 3 May 2018, Douglas J made orders which, inter alia:
    1. (a)
      removed the former executor and revoked the grant of probate made to him;
    2. (b)
      appointed me as administrator of the estate;
    3. (c)
      declared that Gail had an equitable interest in the Condor unit arising as a result of Applegarth J’s orders;
    4. (d)
      ordered that Gail’s costs of the second removal application be paid out of the estate on the indemnity basis;
    5. (e)
      ordered the former executor to indemnify the estate against the costs ordered to be paid to Gail and himself have no recourse to the estate for his costs of the second removal application.

(Douglas J’s order) (Annexure, volume 2, part 1, pages 22-23).

  1. On 12 February 2019, I was informed by Gail’s solicitors, Attwood Marshall, that her indemnity costs of the second removal application are $56,569.30.  They have not, however, produced a costs statement. I have included this sum as a liability of the estate in paragraph 10 above.

The identified transactions

  1. The following are the identified transactions:

 

Date

Transaction

Amount

  1. (a)
     

31.3.16

Payment to Fixx Commercial Pty Ltd (Fixx)

$750,000

  1. (b)
     

9.5.16

Payment to Ray White Commercial

$5,000

  1. (c)
     

20.5.16

Payment to Mawson Flinders Cook Global Capital

(MFC)

$210,000

  1. (d)
     

25.5.16

Payment to MFC

$110,000

  1. (e)
     

2.6.16

Payment for cutlass bearing

$8,800

  1. (f)
     

3.5.16-16.9.16

Payments to Kasia Robinson

$45,120

  1. (g)
     

4.11.16

Payment to Bartier Perry

$85,000

  1. (h)
     

1.6.16-30.4.17

Cash withdrawals

$4,700

  1. (i)
     

11.8.17

Payment to Evans Lawyers for costs and outlays

incurred in relation to a personal matter of Matthew’s relating to the Child Support Agency

$1,330.31

  1. (j)
     

8.9.17

Payment to Dover & Sons

$7,272

(k)

July 2016

Permitted the transmission of the Mullumbimby property to Margaret; failed to claim one-half of the property (or one-half of the net proceeds of its sale) from Margaret

$382,000

    

$1,609,222.31

  1. The former executor has consistently referred to the Fixx and MFC payments as “investments”.  However, my investigations reveal that the payments were made for the purpose of financing or refinancing companies in which Matthew had a direct or indirect personal interest.
  2. Despite request, the former executor has been unable to explain or justify the payments to Kasia Robinson and the cash withdrawals.  He has admitted that the Dover & Sons payment was made for his personal benefit.
  3. Finally, the former executor has said that the Bartier Perry payment was for another “investment” which did not proceed and which sum was repaid to the estate (by the payments referred to in paragraphs 38).  
  4. As against the amount of the identified transactions, the former executor claims that he (or persons associated with him) have personally paid to or on behalf of the estate the following:

 

Date

Payment

Amount

Verified

  1. (a)
     

14.3.17

Evans Lawyers trust account by Simone

Holzapfel

$5,000

Yes

  1. (b)
     

16.3.17

Evans Lawyers trust account by Trevor

Holzapfel

$20,000

Yes

  1. (c)
     

24.3.17

Evans Lawyers trust account by Matthew

$60,000

Yes

  1. (d)
     

10.7.17

Gail on accounts of costs payable under

Applegarth J’s order

$100,000

Yes

  1. (e)
     

30.8.17

Payment to Gail on account of the weekly sum

$1,600

Yes

  1. (f)
     

1.9.17

Gail on account of the capital sum payable under Applegarth J’s order

$200,000

Yes

  1. (g)
     

5.9.17

Payment to trust account of Evans Lawyers on behalf of the estate

$25,000

Yes

  1. (h)
     

30.11.17

Payment to Gail on account of the weekly sum

$1,600

Yes

  1. (i)
     

19.1.18

Payment to Gail on account of the weekly sum

$2,000

Yes

  1. (j)
     

4.4.18

Payment to Gail on account of the weekly sum

$1,600

Yes

(k)

Various

Payments to Gail

$16,900

In part to the total of

$8,400

(l)

1.8.19

Condor Body Corporate on account of overdue levies, interest and legal costs

$40,923.04

Yes

(m)

1.8.19

Gold Coast City Council on account of overdue rates

$9,956.80

Yes

    

$484,579.84

 

  1. The total of the payments referred to in paragraph 38 above that I have been able to verify is $476,079.84 (verified payments).
  2. The total of the identified transactions less the total of the verified payments is $1,133,142.47.

Company diagram

41. I have caused to be prepared a diagram showing the share ownership and directorships of the following companies in which, at relevant times, Matthew had, or appears to have had, a direct or indirect personal interest (Annexure, volume 2, part 1, page 24):

  1. (a)
    Fraser Drive Investments No 2 Pty Ltd (FDI) (Annexure, volume 2, part 1, pages 25-28). At relevant times, FDI had:
    1. (i)
      Matthew and Trevor Slogrove as its directors;
    2. (ii)
      Salt & Pepper Investments Pty Ltd (350 shares non-beneficially owned), Trevor Slogrove & Penelope Slogrove (100 shares jointly held and non-beneficially owned) and That’s Not a Knife Pty Ltd (550 shares non-beneficially owned) as its shareholders. FDI was deregistered on 11 November 2018;
  2. (b)
    That’s Not a Knife Pty Ltd (TNAK) (Annexure, volume 2, part 1, pages 29-33). At relevant times, TNAK had:
    1. (i)
      Matthew and Rachel Heslop as its directors;
    2. (ii)
      from 4 March 2013 to 8 November 2013, Rebecca Smart (13 shares beneficially owned) and David Wright (7 shares beneficially owned) as its shareholders;
    3. (iii)
      from 8 November 2013, Rachel Heslop (8 shares beneficially owned) and Corporate Advantage Pty Ltd (12 shares non-beneficially owned) as its shareholders.

TNAK was deregistered on 26 July 2015;

  1. (c)
    Corporate Advantage (Annexure, volume 2, part 1, pages 34-38). At relevant times, Corporate Advantage had:
    1. (i)
      from 7 November 2013 to 9 August 2019, Matthew as its sole director;
    2. (ii)
      from 9 August 2019, Matthew’s wife Simone Maree Robinson as its sole director;
    3. (iii)
      Matthew (120 shares beneficially owned) as its sole shareholder;
  2. (d)
    East Land 8 Pty Ltd (EL8) (Annexure, volume 2, part 1, pages 39-42). At relevant times, EL8 had:
    1. (i)
      Matthew as its sole director;
    2. (ii)
      Corporate Advantage (72 shares non-beneficially owned), Matthew (24 shares beneficially owned) and Robinson Prospect Pty Ltd (Robinson Prospect) (24 shares non-beneficially owned) as its shareholders.

EL8 was deregistered on 19 August 2018;

  1. (e)
    Robinson Prospect (Annexure, volume 2, part 1, pages 43-46). At relevant times, Robinson prospect had:
    1. (i)
      from 12 February 2016 to 9 August 2019, Matthew and his brother, Scott, as its directors;
  1. (ii)
    from 9 August 2019, Matthew’s wife Simone Maree Robinson and his brother, Scott, as its directors;
  1. (iii)
    Matthew (6 shares beneficially owned) and James (6 shares beneficially owned) as its shareholders;
  1. (f)
    East Land 5 Pty Ltd (EL5) (Annexure, volume 2, part 1, pages 47-53). EL5 was incorporated on 19 January 2017 and had:
    1. (i)
      from 19 January 2017 to 13 February 2017, Matthew and one of his associates, Michael Stefanovski, as its directors;
    2. (ii)
      from 13 February 2017 to 24 February 2017, Michael Stefanovski as its sole director;
    3. (iii)
      from 24 February 2017 to 11 May 2018, Matthew and Michael Stefanovski as its directors;
  1. (iv)
    from 11 May 2018, Michael Stefanovski as its sole director;
  2. (v)
    from 26 February 2019 until 9 August 2019, Matthew as its sole director;
  3. (vi)
    from, 9 August 2019, Matthew’s wife Simone Maree Robinson as its sole director;
  4. (vii)
    from 19 January 2017 to 24 February 2017, Corporate Advantage (24 shares nonbeneficially owned) and Cyclone Equity (Cyclone) (30 shares non-beneficially owned) as its shareholders;
  5. (viii)
    from 24 February 2017 to 18 July 2019, Corporate Advantage (24 shares nonbeneficially owned), Cyclone Equity Pty Ltd (Cyclone) (30 shares non-beneficially owned) and ELJV Pty Ltd (ELJV) (66 shares non-beneficially owned) as its shareholders;
  6. (ix)
    from 18 July 2019, Corporate Advantage (46 shares non-beneficially owned); SH Investments No 1 Pty Ltd (SH Investments) (22 shares non-beneficially owned) and Cyclone (52 shares non-beneficially owned);
  1. (g)
    Cyclone (Annexure, volume 2, part 1, pages 54-57). At relevant times, Cyclone had:
    1. (i)
      from 11 October 2016 to 9 August 2019, Matthew as its sole director;
    2. (ii)
      from, 9 August 2019, Matthew’s wife Simone Maree Robinson as its sole director;
    3. (iii)
      Matthew (12 shares non-beneficially owned) as its sole shareholder;
  2. (h)
    ELJV (Annexure, volume 2, part 1, pages 58-61). At relevant times, ELJV had:
  3. (i)
    one of Matthew’s associates, Michael Stefanovski, as its sole director;
  1. (ii)
    Stefanovski (ELJV) Investments Pty Ltd (120 shares non-beneficially owned) and until 14 February 2017 Pezet (ELJV) Investments Pty Ltd (60 shares non-beneficially owned) as its shareholders.
  1. (i)
    SH Investments (Annexure, volume 2, part 1, pages 62-65). At relevant times, SH Investments had:
  1. (i)
    Matthew’s wife Simone Maree Holzapfel (also known as Simone Maree Robinson) as its sole director;
  1. (ii)
    Matthew’s wife Simone Maree Holzapfel (also known as Simone Maree Robinson) (1 share beneficially owned) as its shareholder.

Fixx payment

  1. FDI owned the development property situated at Lot 12, 57 Fraser Drive, Tweed Heads in the State of New South Wales (Fraser Drive property) (Annexure, volume 2, part 1, page 66). 
  2. In or about August 2014, FDI granted a mortgage over the Fraser Drive property to McKenzie Maree Enterprises Pty Ltd (MME) to secure a debt owed by FDI to MME (MME mortgage).
  3. MME was represented by Fixx.  
  4. At relevant times, Fixx:
    1. (a)
      was in the business of providing or arranging the provision of bridging finance;
    2. (b)
      had as Paul Smith as its sole director and shareholder and Anthony Pattinson as a representative (Fixx’s representatives) (Annexure, volume 2, part 1, pages 67-70);
    3. (c)
      represented MME or acted as an intermediary between MME, Matthew and his associated companies, FDI, EL8 and EL5.
  5. By June 2015, FDI had fallen into default under the MME mortgage.
  6. FDI attempted to refinance the MME mortgage but MME proceeded to exercise its power of sale over the Fraser Drive property and undertook a sales campaign.
  7. Matthew and his solicitors, Whitehead Crowther, had discussions and engaged in correspondence with Fixx’s representatives in March 2016 in the course of which they proposed that:
    1. (a)
      a new company would be incorporated to purchase the Fraser Drive property from MME as mortgagee exercising power of sale for a purchase price of $3.5 million.  EL8 was incorporated on 24 March 2016 for the purpose of purchasing the Fraser Drive property;
    2. (b)
      a deposit of $700,000 would be payable;  
    3. (c)
      the deposit money would come from the deceased’s estate and would need to be structured as an “investment” or “loan” by the estate in or to Fixx and as a loan by Fixx to EL8;
    4. (d)
      $1.5 million of the purchase price would be provided by a third-party financier who would take a first mortgage over the Fraser Drive property;
    5. (e)
      MME would provide vendor finance secured by second mortgage for the balance purchase price, which was to be payable within six months’ of settlement.

(Annexure, volume 2, part 1, pages 71-72). 

  1. It was later discussed between Matthew and Fixx’s representatives that $750,000 would be paid to Fixx pending the exchange of a contract between MME as mortgagee exercising power of sale and EL8 as purchaser of the Fraser Drive property.
  2. On 31 March 2016, Matthew, as the former executor, instructed the solicitors then acting for him in relation to the administration of the estate, Cronin Shearer, to transfer $750,000 of the estate’s money held in Cronin Shearer’s trust account to Fixx.  Cronin Shearer required Matthew to confirm his instructions and “about the investment of the funds ie the amount to be invested, where it is to be invested and who with, the length of the investment and confirm you have received independent financial advice about this transaction” (Annexure, volume 2, part 1, pages 73-75).  In response, Matthew confirmed his instructions and said that: 

“The investment is for a period of 6 months.

An agreed rate of 8% p/a calculated monthly is the yield

I have had independent advice from a registered AFSL holder.  Indeed the CEO of Titanium Asset Management personally.

Please transfer 750k to Fixx Commercial…”

(Annexure, volume 2, part 1, page 76).  My searches have failed to identify an Australian Financial Services License holder named “Titanium Asset Management”.

  1. Matthew provided Fixx’s bank account details to Cronin Shearer, and acting on his instructions, on 31 March 2016, Cronin Shearer caused $750,000 to be transferred from its trust account, where it was held on behalf of the estate, to Fixx (Fixx payment).  The Fixx payment occurred on the same day that the net proceeds of sale of the Broadbeach property were received into Cronin Shearer’s trust account on behalf of the estate.
  2. A draft loan agreement between the estate and Fixx was prepared, but as far as I am aware, it was never signed (Annexure, volume 2, part 1, pages 77-94).
  3. A contract between MME and EL8 was exchanged on 30 May 2016 (EL8 contract) (Annexure, p volume 2, part 1, pages 95-171).  It acknowledged receipt of the deposit of $700,000.  
  4. The remaining $50,000 of the Fixx payment appears to have been retained by Fixx on account of fees and charges. 
  5. On 20 January 2017, the EL8 contract was rescinded by agreement and replaced with a new contract between MME as mortgagee exercising power of sale and EL5 as purchaser of the Fraser Drive property (EL5 contract) (Annexure, volume 2, part 2, pages 172-263).  The EL5 contract treated the deposit of $700,000 that had been paid under the EL8 contract as the deposit under the EL5 contract and released that sum unconditionally to MME.  
  6. The EL5 contract settled on 24 February 2017.
  7. EL5 became the registered proprietor of the Fraser Drive property.  My searches reveal that:
    1. (a)
      on or about 8 June 2017 a plan of subdivision was lodged by which, amongst other lots, Lot 12/1163855 were subdivided into new lots (namely Lot 210/1231622, Lot 211/1231622; Lot 212/1231622 and Lot 213/1231622) (Annexure, volume 2, part 2, pages 264-270); and
    2. (b)
      EL5 remains the registered proprietor of the Lot 212/1231622, which is subject to two mortgages to Gemi 111 Pty Ltd (Annexure, volume 2, part 2, pages 271-272).
  8. Matthew has repeatedly asserted that:
    1. (a)
      the Fixx payment was an “investment” made by the estate.  In inventories of estate assets and liabilities prepared by him while executor, including in his affidavit filed in the FPA, he listed it as an asset of the estate;
    2. (b)
      the estate would be repaid when the “investment” was redeemed, at first by 30 June 2017, then by 30 September 2017 and then by 30 September 2018.

(Annexure, volume 2, part 2, pages 273-275; 293-296). 

  1. Since my appointment, I have corresponded with Matthew’s solicitors, Whitehead Crowther, in relation to the Fixx payment and have alleged that the payment amounted to a devastavit, breach of trust and/or breach of fiduciary duty by the former executor.  In response, Matthew’s solicitors have:
    1. (a)
      not denied the allegations I have made in my correspondence;
    2. (b)
      asserted that Matthew wishes to repay the Fixx payment together with interest at 8%;
    3. (c)
      made various proposals in relation to the repayment of the Fixx payment, save for the payments set out in paragraph 38 at (l) and (m), none of which came to fruition.

(Annexure, volume 2, part 2, pages 276-349). 

  1. Matthew even put $150,000 into the trust account of his solicitors, Whitehead Crowther, on behalf of the estate – over which amount I claimed a lien on behalf of the estate – only to subsequently instruct Whitehead Crowther to apply that money for other purposes (Annexure, volume 2, part 2, pages 312-315; 317-318).  Matthew’s solicitors have advised me that Matthew has subsequently put further funds into their trust account, but would not provide me with any further details, in case I claimed a further lien over the same (Annexure, volume 2, part 2, pages 319-320; 322-323).
  2. Following the most recent without prejudice discussions between myself (on behalf of the Estate) and Whitehead Crowther (on behalf of Matthew and EL5), the sum of $100,000 has been paid to the Trust Account of Parsons Law to be held in escrow pending an order of the Court regarding release of those funds (Annexure, volume 2, part 2, page 350).   
  3. I have obtained advice from Mr Otto of Counsel in relation to the claims which the estate may have against Matthew and EL5 in relation to the Fixx payment.  Mr Otto’s advice will be tendered at the hearing of this application.  I have considered Mr Otto’s advice and believe that the estate has a prima facie case against Matthew and EL5 to recover the Fixx payment, interest and costs, and also to seek proprietary relief.

MFC payments

  1. On 20 May 2016, the former executor caused $210,000 to be paid from the estate’s Suncorp account to MFC (Annexure, volume 2, part 2, page 351).
  2. On 25 May 2016, the former executor caused another $110,000 to be paid from the estate’s Suncorp account to MFC via the solicitors then acting for him personally, Whitehead Crowther (Annexure, volume 2, part 2, page 352).  
  3. The payments referred to in paragraphs 63 and 64 above (MFC payments) were made two weeks after the deceased’s superannuation death benefit was received from the Robbo Super Fund.
  4. MFC’s website states that, “The Mawson Flinders Cook Group operates across the Asia Pacific region specialising in the Private Capital Markets.  Head quartered in Singapore, the Mawson Flinders Cook Group concentrates on providing Private Capital and Structured Finance debt origination, Risk Mitigation through credit enhancement and financial surety and Private Asset Management solutions to its Clients” (Annexure, volume 2, part 2, page 353).
  5. In various inventories of estate assets and liabilities prepared by him, the former executor referred to the MFC payments as an “investment” and listed them as an asset of the estate (Annexure, volume 2, part 2, pages 273-275).
  6. In response to the first removal application, Matthew exhibited to his affidavit a document from MFC dated 23 August 2017 in the following terms:

Investment Loan Balance Enquiry: Robinson

Dear Matt

Thank you for your enquiry regarding the Investment status on the ‘Estate’ Investment via Crowther Lawyers as a secured loan via Mawson Flinders Cook Global as the Mortgage Manager.

The loan balance is as stated below:

 $320,000        Loan amount settled on 25th May 2016.

 455 days        Current loan Term as 22nd August 2017.

 $35.17        Daily Interest Rate @ 5% per annum.

 $16,002.35       Total accrued Interest.

 $336,002.35       Total Loan Amount Payable at Settlement.

We confirm the above statement represents the investment’s position.  We note that you have urgently requested a redemption of part of this investment.  We will advise you of the expected redemption date as a matter of urgency.”

(Annexure, volume 2, part 2, page 354).

  1. Since my appointment, I have sought to ascertain the circumstances in and reasons for which the MFC payments were made:
    1. (a)
      On 31 May 2018, I wrote to MFC asking for information about the MFC payments. I received no response;
    2. (b)
      On 11 May 2018, Gail’s solicitors, Attwood Marshall, wrote to Matthew’s solicitors, Whitehead Crowther, and me, referring to a telephone conversation they had had with MFC’s director, Grant Thomas, during which he said that Matthew had transferred the estate’s “investment” from MFC to Oceanic Securities Pty Ltd (Oceanic) (Annexure, volume 2, part 3, pages 355-356);

(c)On 11 May 2018, Attwood Marshall wrote to Oceanic asking for information about the “investment” made by Matthew (Annexure, volume 2, part 3, pages 357-358);

  1. (d)
    On 17 May 2018, Oceanic’s solicitors, Anthony Delaney Lawyers, wrote to Attwood Marshall (Annexure, volume 2, part 3, pages 359-360), stating:

“[Matthew] has never invested any funds (estate or otherwise) with or through [Oceanic].

… [B]y way of a business loan [Oceanic] advanced funds to a number of corporate entities associated with [Matthew]. These were short term loans secured by various assets. [Matthew] personally guaranteed these loans.

These loans have been extended at the request of [Matthew], and further security has been provided at different junctures.

Late [in 2017], at the request of [Matthew], [Oceanic] again advanced further funds to an associated entity of [Matthew]. In consideration [Matthew] offered to procure the transfer of a mortgage that was held by [MFC] against a property owned by another corporate entity related to [Matthew] as further security for the debt to [Oceanic].

In short, this was an arms length transaction whereby [Oceanic], a bona fide assignee/transferee, acquired all right, title and interest in the registered mortgage from an unrelated third party without knowledge of any interest held by any other party…

[Oceanic] has subsequently become aware that [Matthew] (in his own capacity, and in capacity as the executor of the estate) invested monies with MFC, and presumably as some form of security for a loan from MFC to the third party entity (which was secured by the MFC mortgage)…

We are advised that [Matthew] has repaid all monies to the estate that were invested with MFC on behalf of the estate, and that this is evidenced in the estate accounts.”

  1. (e)
    On 18 May 2018, Whitehead Crowther wrote to Attwood Marshall, and me, stating that Matthew’s instructions were that:
    1. (i)
      no estate money was advanced by MFC to Oceanic;
    2. (ii)
      $210,000 was “invested” by the estate with MFC on 20 May 2016;
    3. (iii)
      he or his corporate entities had paid about $320,000 to the estate representing the initial “investment”, interest on the initial investment and other money;

(Annexure, volume 2, part 3, pages 361-363);

  1. (f)
    On 30 May 2018, Whitehead Crowther wrote to Attwood Marshall, and me, stating that:

“a) The monies loaned to MFC by the estate were utilised by MFC to acquire a mortgage over the land owned by a company operated by [Matthew].

  1. b) That company did not have funds to repay the loan to MFC so [Matthew] loaned the estate monies from his personal funds and from other companies to pay the $200,000 to [Gail] and $100,000 costs to [her solicitors, Attwood Marshall].
  2. c) After swearing his affidavit on 3 May 2018 and prior to my conversation with Mr Garrett [of Attwood Marshall] on 18 May, [Matthew] has instructed me that he treats $210,000 of those loan monies as a redemption of the investment by the estate from the Suncorp bank account with MFC.”

The explanation in paragraph a) of Whitehead Crowther’s letter suggests that MFC used the estate’s money to purchase a mortgage from another mortgagee, in effect refinancing an existing mortgage for the benefit of an unnamed company associated with Matthew (Annexure, volume 2, part 3, pages 364-367);

  1. (g)
    On 19 September 2018, Whitehead Crowther wrote to me asserting that, on the basis that Matthew (or a person or persons associated with him) have made payments on behalf of the estate, no amount is owing by him to the estate in relation to the MFC payments (Annexure, volume 2, part 2, pages 293-296).
  1. I have not been able to obtain any clearer explanation of the reasons for the MFC payments.  However, the information that is available to me suggests that the former executor used $320,000 of the estate’s money, in effect, to refinance an unnamed company in which he had a direct or indirect personal interest.
  2. I have obtained advice from Mr Otto of Counsel in relation to the claims which the estate may have against Matthew in relation to the MFC payments.  Mr Otto’s advice will be tendered at the hearing of this application.  I have considered Mr Otto’s advice and believe that the estate has a prima facie case against Matthew to recover the MFC payments, interest and costs.

Mullumbimby property

  1. At the time of his death, the deceased was the registered proprietor of a property situated at Alidenes Road, Mullumbimby, as joint tenants with his ex-wife, Margaret (Mullumbimby property) (Annexure, volume 2, part 3, page 368).
  2. On 1 February 1994, the Family Court made property settlement orders between the deceased and Margaret (Annexure, volume 2, part 3, pages 369-378).  The orders were made by consent.
  3. The orders affected the Mullumbimby property in the following way:
    1. (a)
      That part of the property that lay to the north of Alidenes Road was to be subdivided by the deceased and Margaret;
    2. (b)
      The deceased was to have the sole use and occupation of the former matrimonial home that was situated on that part of the property that lay south of Alidenes Road, which in the order was referred to as the “residual property”, until such time as the residuary property was subdivided and the matrimonial home sold;

(c)Any subdivision of the residual property was to be undertaken at the cost of the deceased and Margaret equally;

  1. (d)
    If the residual property was subdivided, all of the subdivided allotments were to be listed for sale, with the deceased to have the first right of refusal in relation to that allotment on which the former matrimonial home was situated and Margaret to have the second right of refusal;
  2. (e)
    If the residual property was not subdivided by 1 January 1997, it was to be listed for sale;
  3. (f)
    On the sale of the property, all costs and liabilities incurred in relation to the subdivision were to be paid out of the proceeds, there were then to be certain adjustments made between the deceased and Margaret, and:

“The balance of the proceeds of sale, after the deductions of the monies mentioned in subparagraphs a, b, c and d hereof shall be divided equally between the parties.”

  1. On 29 March 2016, the solicitors then acting for the former executor, Cronin Shearer, advised him as follows:

“We have been notified by Lamb & Co Solicitors (in Mullumbimby) that Grahams solicitors on behalf of Margaret Robinson are trying to compel Chris Lamb to hand over the Certificate of Title for the farm property in Mullumbimby.  They have not asserted what their client’s intention is in respect to the CT (ie whether it is to follow the court order) but he advised them of the existence of the Family Court order, of his belief that the estate has an interest in the property on that basis and that he will not release the CT unless the family order is carried out.  However, in the circumstances, where the Family Court order does not specifically deal with severance of the joint tenancy, there may come a time in the near future when he is ordered to hand it over.  That being the case, now that we know who is acting for your mother, the estate should be contacting them to advise of the estate’s interest in the property, and to lodge a caveat over the propertyGiven the number of beneficiaries in the estate and the claim by Gail Groundwater [it] is not an option to abandon any interest the estate has in the property, or this will leave you open to be personally liable (unless all beneficiaries agreed – which is an unlikely outcome).

I therefore require your urgent instructions to send correspondence to grahams advising of the estate’s interest and to prepare and lodge a caveat over the property.” (Annexure, volume 2, part 3, page 379).

  1. The former executor at first instructed Cronin Shearer to request that the certificate of title be sent to Cronin Shearer, in response to which Cronin Shearer advised him that that could not be done, the estate needed to “take steps to protect its interest in the property before something is done contrary to those interest[s] and that will be very expensive to undo”, Margaret’s solicitors should be put on notice of the estate’s interest and a caveat should be lodged (Annexure, volume 2, part 3, page 380).
  2. On 30 March 2016, the former executor instructed Cronin Shearer to give notice of the estate’s interest to Margaret’s solicitors and to lodge a caveat (Annexure, volume 2, part 3, page 381).  Notice

was given to Margaret’s solicitors on 31 March 2018 and on 4 April 2016 they wrote disputing the estate’s claim (Annexure, volume 2, part 3, pages 382--383).

  1. On 8 April 2016, Cronin Shearer recommended that the former executor obtain counsel’s advice in relation to the possible equitable rights that the estate may have in the Mullumbimby property (Annexure, volume 2, part 3, page 384).
  2. Instead of obtaining counsel’s advice as recommended, on 4 May 2016, the former executor instructed Cronin Shearer that the Mullumbimby property “was to be transferred to his mother and he would get advice afterwards” (Annexure, volume 2, part 3, page 385).
  3. In July 2016, the former executor terminated Cronin Shearer’s retainer.
  4. On 15 July 2016, Margaret registered a notice of death the effect of which was to transfer the Mullumbimby property to her as surviving joint tenant (Annexure, volume 2, part 3, page 386).
  5. Margaret entered into a contract to sell the Mullumbimby property to St Saviour Investments Pty Ltd for a sale price of $810,000.  On 19 September 2016, a transfer of the Mullumbimby property to St Saviour Investments Pty Ltd was registered (Annexure, volume 2, part 3, page 387).
  6. The net sale proceeds of the Mullumbimby property were $764,000.
  7. Of the net proceeds of sale, Margaret caused:
    1. (a)
      $500,000 to be paid to her and the deceased’s son, Scott;
    2. (b)
      $250,000 to be paid to her and the deceased’s son, Kirk.
  8. On 12 March 2019, I sent a letter to Margaret summarising the grounds of the estate’s claim and demanding that she account for the estate’s half interest of the net proceeds of sale (Annexure, volume 2, part 3, pages 388-391).
  9. On 14 August 2019, I received a letter from Whitehead Crowther informing me that:
    1. (a)
      they acted for Margaret;
    2. (b)
      Margaret asserted that the deceased failed to comply with the orders in that he:
      1. failed to account to her for rent as required by paragraphs 21 and 22 of the order, on account of which Margaret claims to be owed $130,000;
      2. failed to account to her for her share of the proceeds of sale of cattle as required by paragraphs 29 of the order.  Margaret additionally asserts an entitlement to share the proceeds of sale of farm equipment, although she has not identified the paragraph or paragraphs of the order that confer on her that entitlement;

(c)Margaret also asserted that she had expended $30,000 to maintain the Mullumbimby property prior to its sale, which should have been paid by the deceased in accordance with paragraphs 16 and 24 of the order.

 (Annexure, volume 2, part 2, pages 339-341)  

  1. I have asked Margaret to provide evidence supporting her assertions.  
  2. Margaret’s assertions, if correct, may give her a counterclaim or set-off against the estate’s claim, but on the basis that:
    1. (a)
      the estate’s one-half share of the net proceeds of sale of the Mullumbimby property is $382,000;
    2. (b)
      Margaret has a counterclaim or set-off for at least $160,000, an amount of up to $222,000 may still be due and owing to the estate.
  3. I have obtained advice from Mr Otto of Counsel in relation to the claims which the estate may have against Margaret in relation to the Mullumbimby property and the net proceeds of its sale.  Mr Otto’s advice will be tendered at the hearing of this application.  I have considered Mr Otto’s advice and believe that the estate has a prima facie case against Margaret to recover one-half share of the net proceeds of sale of the Mullumbimby property.
  1.  
  1.  In light of the information provided to me by Margaret to the effect that she gave:
  1. (a)
    $500,000 to Scott;
  2. (b)
    $250,000 to Kirk,

I believe that the estate has a prima facie case against Scott and Kirk to follow and trace its one-half share of the net proceeds of sale of the Mullumbimby property in their hands.

  1.  

Miscellaneous payments

  1. The identified transactions include the following miscellaneous payments:

Ray White Real Estate

  1. On 9 May 2016, the former executor the former executor caused $5,000 to be paid from the estate’s Suncorp account to Ray White Real Estate (Annexure, volume 2, part 3, page 407). 
  2. I have asked Matthew to substantiate this payment as having been properly made on behalf of the estate, but he has been unable to do so (Annexure, volume 2, part 2, pages 293-296; 324-328). 

Bartier Perry

  1. On 4 November 2016, the former executor caused $85,000 to be paid from the trust account of the solicitors then acting for him in the administration of the estate, Evans Lawyers, to Bartier Perry (Bartier Perry payment) (Annexure, volume 2, part 3, page 408).  
  2. I have asked Matthew to substantiate this payment as having been properly made on behalf of the estate.  In response, his solicitors, Whitehead Crowther, has informed me that the Bartier Perry payment was:
    1. (a)
      the deposit for an “investment” that did not proceed;
    2. (b)
      returned to the trust account of Evans Lawyers on behalf of the estate.

(Annexure, volume 2, part 2, pages 293-296).

  1. I have been unable to locate any evidence of Bartier Perry returning $85,000 to the estate.  However, I have verified that the following payments were made to the estate:
    1. (a)
      on 14 March 2017, $5,000 was paid to the trust account of the solicitors then acting for the former executor, Evans Lawyers, with the notation “Anticipated Costs & Outlays”, by the former executor’s wife, Simone Holzapfel (who is also known as Simone Robinson);
    2. (b)
      on 16 March 2017, $20,000 was paid to the trust account of Evans Lawyers with the notation “on behalf of M Robinson – Anticipated Costs”, by the former executor’s father-in-law, Trevor Holzapfel;
  1. (c)
    on 24 March 2017, $60,000 was paid to the trust account of Evans Lawyers with the notation “Costs & Outlays” by the former executor.

According to the trust account statements of Evans Lawyers, all of the above three payments were immediately transferred by it to its general account in payment of its costs and outlays.

(Annexure, Annexure, volume 2, part 3, page 409-411).  

Cutlass bearing

  1. On 2 June 2016, the former executor withdrew cash totalling $8,800 from estate’s Suncorp bank account which was recorded in the Account Transaction summary for 1 July 2015 to 30 June 2016 produced by the former Executor as being “Cutlass Bearing – Boat repair”. 
  2. I have asked Matthew to substantiate this payment as having been properly made on behalf of the estate.  In response, Whitehead Crowther has informed me that the payment was made to purchase a cutlass bearing for the deceased’s yacht that was required for its sale (Annexure, volume 2, part 2, pages 293-296; 324-328).  However, I have been provided with no evidence, such as an invoice or receipt, which enables me to verify this explanation.

Dover & Sons

  1. On 8 September 2017, the former executor caused $7,272 to be paid from the trust account of Evans Lawyers to Dover & Sons (Annexure, volume 2, part 3, page 413).
  2. I have asked Matthew to substantiate this payment as having been properly made on behalf of the estate.  In response, Whitehead Crowther, has informed me that the payment related to a personal expense of Matthew, namely, a mechanical part for his farm (Annexure, volume 2, part 2, pages 293-296; 324-328). 

Kasia Robinson

  1. Kasia Robinson is Matthew’s niece.
  2. As appears from the retrospective estate account prepared by me, during the course of his administration of the estate, the former executor caused the following payments, totalling $45,120, to Kasia, with the notation, “consultant fees” (Annexure, volume 2, part 1, pages 6-17).
  3. I have asked Matthew to substantiate this payment as having been properly made on behalf of the estate.  In response, Whitehead Crowther has informed me that:
    1. (a)
      Kasia Robinson should provide information and documents to substantiate why those payments were properly made out of the estate;
    2. (b)
      Subsequently, that as Kasia Robinson was unwilling to produce evidence, Matthew acknowledged that the payments made to her should be repaid to the estate.

(Annexure, volume 2, part 2, pages 293-296; 324-328). 

Cash withdrawals

  1. The former executor made the following cash withdrawals from the estate’s Suncorp account:

 

Date

Amount

  1. (a)
     

1.6.17

$800

  1. (b)
     

28.2.17

$400

  1. (c)
     

16.3.17

$2,000

  1. (d)
     

30.4.17

$1,500

 

 

$4,700.00

  1. I have asked Matthew to substantiate these withdrawals as having been properly made on behalf of the estate.  However, Matthew has not provided any evidence, such as invoices or receipts, which enable me to substantiate these withdrawals as proper.
  2. I have been informed by Whitehead Crowther that Matthew and his brother, Scott, withdrew $1,100 from the estate’s Suncorp account for their personal use when they broke down while “out in the bush” (Annexure, volume 2, part 2, pages 293-296).

Child support

  1. From the trust account statements I have obtained from the solicitors who acted for the former executor, Evans Lawyers, I have noted that on 11 August 2017, $1,330.31 was transferred from that firm’s trust account, where it was held on behalf of the estate, to its general account in payment of its tax invoice number 6743 (Annexure, volume 2, part 3, page 410).  Tax Invoice 6743 relates to work performed by Evans Lawyers for Matthew personally in relation to a matter concerning the Child Support Agency (Annexure, volume 2, part 3, pages 438-440).

The former executor’s legal costs and outlays

  1. During his administration of the estate, the former executor incurred substantial legal costs and outlays.  Having regard to the retrospective estate account which I have caused to be prepared, I have ascertained the former executor paid $137,097.06 from the estate on account of legal costs and outlays as follows:
    1. (a)
      $23,564.30 to Cronin Shearer;
    2. (b)
      $85,812.76 to Evans Lawyers;
    3. (c)
      $3,520 to Mr Faulkner of Counsel;
    4. (d)
      $15,400 to Mr Jeffery of Counsel;
    5. (e)
      $8,800 to Mr Wright of Counsel;
    6. (f)
      $2,062.50 to Mr Eastwood of Counsel, who acted as mediator in the FPA.
  2. The following table summarises Evans Lawyers’ invoices and payments made from trust:

Date

Invoice No

Matter

Paid from trust

Total amount

16.9.16

4937

Administration and FPA

$7,215.34

$7,215.34

29.9.16

4975

Administration and FPA

$4,523.06

$4,523.06

19.10.16

5095

Administration and FPA

$1,678.10

$1,678.10

15.11.16

5244

FPA

$12,098.96

$12,098.96

24.11.16

5303

FPA

$2,363.48

$2,363.48

8.12.16

5381

FPA

$2,378.64

$3,627.80

23.12.16

5521

Administration and FPA

 

$4,578.38

2.2.17

5723

Administration and FPA

 

$473.00

17.2.17

5788

Administration and FPA

 

$1,448.56

16.3.17

5931

Administration and FPA

$20,000.00

$34,209.73

7.4.17

6077

Administration and FPA

$2,082.09

$2,082.09

17.5.17

6256

Administration and FPA

$16,259.38

$16,259.38

11.8.17

6743

Child Support Agency

$1,330.31

$1,330.31

24.8.17

6823

First removal application

$5,221.11

$5,221.11

5.9.17

6866

First removal application

$10,977.46

$10,977.46

    

$86,127.93

$108,086.76

(Annexure, volume 2, part 3, pages 414-444).

  1. $75,000 was payable out of the estate under Applegarth J’s orders in relation to the former executor’s costs and outlays of the FPA, and to that extent, the former executor was entitled to be indemnified out of the estate.  However, to the extent that the former executor’s costs and outlays of the FPA exceeded $75,000, the effect of Applegarth J’s orders was to deprive him of an entitlement to be indemnified out of the estate against the excess.  Without an assessment, I am unable to ascertain from Evans Lawyers’ invoices the extent to which the costs and outlays paid in relation to the FPA exceed the $75,000 fixed by Applegarth J’s orders.
  2. Although Burns J’s order dismissed the first removal application, the former executor was ordered to pay Gail’s costs of the first removal application on the indemnity basis.  According to a costs statement provided by Gail’s solicitors, Attwood Marshall, her costs and outlays of the first removal application are $50,096.24.
  3. The former executor incurred costs and outlays in resisting the first removal application of $20,598.57 (Annexure, volume 2, part 3, pages 441-445).  
  4. On the taking of an estate account, the question would arise whether the former executor’s costs and outlays incurred in resisting the first removal application (including costs and outlays the estate was ordered to pay to Gail) were properly incurred by him, such that he should be indemnified against them out of the estate, given that:
    1. (a)
      the first removal application was made as a result of his default in complying with Applegarth J’s orders;
    2. (b)
      the inability of the estate to comply with Applegarth J’s orders was caused by the payments made by him referred to above (and in particular the Fixx and MFC payments), which prima facie amounted to devastavits, breaches of trust and breaches of fiduciary duty;
    3. (c)
      the first removal application was resolved by consent only after the former executor paid the capital sum and arrears of the weekly sum to Gail.

Summary of the estate’s claims against Matthew and EL5

  1. In summary, the estate’s claims against Matthew and EL5 comprise:

Claim

Amount

  • Fixx payment
  • $ 750,000.00
  • Interest on Fixx payment @ 8% from 31.3.16 to 1.8.19
  • $ 200,219.18
  • Interest on balance of Fixx payment of $699,120.96 @ 8% from 2.8.19 to 2.10.19 (allowing repayment of $50,879.04 on 1.8.19), and accruing at $153.23 per day
  • $9,347.15
  • MFC payments
  • $ 320,000.00
  • less MFC repayments
  • -$320,000.00
  • Interest on MFC payments @ 5% from 25.5.16 to 1.9.17 allowing for repayments of:
  • $100,000 on 10.7.17
  • $1,600 on 30.8.17
  • $200,000 on 1.9.17
  • $25,000 on 5.9.17
  • $1,600 on 29.11.17
  • $2,000 on 19.1.18
  • $1,600 on 4.4.18
  • $16,900 between various dates
  • $ 9,247.93
  • Half-share of net proceeds of sale of Mullumbimby property
  • $ 382,000.00

Claim

Amount

  • Interest on share of Mullumbimby proceeds @ default judgment rates from 19.9.16 to 2.10.19, and accruing at $57.66 per day
  • $ 63,945.38
  • Ray White payment
  • $ 5,500.00
  • Interest on Ray White payment @ default judgment rates from 9.5.16 to 2.10.19, and accruing at $0.84 per day
  • $ 1,037.96
  • Bartier Perry payment
  • $ 85,000.00
  • less Bartier Perry repayment
  • -$ 85,000.00
  • Interest on Bartier Perry payment @ default judgment rates from 4.11.16 to 24.3.17 allowing for repayments of:
  • $5,000 on 14.3.17
  • $20,000 on 16.3.17
  • $60,000 on 24.3.17
  • $ 1,805.96
  • Cutlass bearing
  • $ 8,800.00
  • Interest on cutlass bearing @ default judgment rates from 2.6.16 to 2.10.19, and accruing at $1.33 per day
  • $ 1,625.59
  • Dover & Sons payment
  • $ 7,272.00
  • Interest on Dover & Sons payment @ default judgment rates from 8.9.17 to 2.10.19, and accruing at $1.09 per day
  • $ 824.26
  • Kasia Robinson payments
  • $ 45,120.00
  • Interest on Kasia Robinson payments @ default judgment rates from dates of payment to 2.10.19, and accruing at $6.50 per day
  • $ 8,042.50
  • Cash withdrawals
  • $ 4,700.00
  • Interest on cash withdrawals @ default judgment rates from 1.6.17 to 2.10.19, and accruing at $0.71 per day
  • $ 603.05
  • Child support costs
  • $ 1,330.31
  • Interest on child support costs @ default judgment rates from 11.8.17 to 2.10.19, and accruing at $0.20 per day
  • $ 156.42
  • Costs payable out of the estate to Gail in relation to the first and second removal applications
  • $ 106,665.54
  • Matthew’s costs of the first removal application paid out of the estate
  • $ 20,598.57

 

  • $ 1,628,841.80
  1. Taking into account the remaining verified payments referred to in paragraphs 38(e), 38(g) to 38(m) above, which total $91,079.84, I believe the estate has a prima facie claim against Matthew to recover:
    1. (a)
      $1,240,906.58;
    2. (b)
      interest of $296,855.38 (as at 2.10.19 and accruing).
  2. The estate’s claim against EL5 relates to the Fixx payment only.
  1.  

Summary of the estate’s claim against Margaret, Scott and Kirk 120. In summary, the estate’s claim against Margaret comprises:

Claim

Amount

  • Half-share of net proceeds of sale of Mullumbimby property

$382,000.00

  • Interest on share of Mullumbimby proceeds @ default judgment rates from 19.9.16 to 2.10.19, and accruing at $57.66 per day

$ 63,945.38

121. The claim is made on the basis that Margaret succeeded to the Mullumbimby property at law but held it in equity as tenants-in-common for her and the deceased, their joint tenancy therein having been severed at the time they agreed to the consent orders in the Family Court.  On that basis, the estate’s claim is that: 

  1. (a)
    Margaret held the property and the net proceeds of its sale on trust for herself and the deceased as tenants-in-common, and having failed to pay to the estate its half-share, is liable to account for breach of trust;
  2. (b)
    the estate is entitled to follow and trace its half-share of the net proceeds of sale into the hands of Scott and Kirk who received them as volunteers.
  1.  

Consultation with beneficiaries

  1. I have reported to those of the beneficiaries for whom I have contact details several times since my appointment (Annexure, volume 2, part 3, pages 446-465).
  2. I have informed the beneficiaries of my intention to make the present application (Annexure volume 2, part 3, pages 453-465).
  3. Kirk, Bonnie, Rueben and Gail took up my invitation to be provided with a copy of the opinion of Mr Otto of Counsel, subject to them providing confidentiality undertakings (Annexure, volume 2, part 3, pages 466-473). 
  4. In response to my correspondence: 
    1. (a)
      The following beneficiaries have provided me with identification documents I requested shortly after my appointment:
      1. William Robinson;
      2. Kirk;
      3. Grace Robinson;
      4. Erin Robinson;
      5. Thor Robinson;
      6. Rueben Robinson;
      7. Bonnie Robinson; and
      8. Gail Groundwater;
    2. (b)
      The remaining beneficiaries have not provided me with the requested identification documents or otherwise responded to me in anyway;
    3. (c)
      Kasia Robinson has made some attempts to contact me by phone and email. Kasia informed me she would encourage her family to provide me with their contact details. Kasia queried if money would be available for distribution and she requested information on the alleged monies paid to her by the former executor;
    4. (d)
      Kirk has informed me during telephone conversations I have had with him that he does not speak to Matthew and he is concerned about any claim being made against his mother, Margaret;
    5. (e)
      Tom Robinson and his wife have both telephoned me early on in the matter to discuss my appointment and documents I required from Tom. Tom has not made any recent contact with me;
    6. (f)
      Grace has emailed me on a number of occasions seeking to have the money held by me on her behalf in a beneficiaries’ trust account paid to her.  Grace has telephoned me to discuss the payment of funds to her. I have informed her I was seeking judicial advice and no monies were to be released at that time. In respect to the commencement of proceedings to recover funds from Matthew, EL5 and/or Margaret, early in the matter Grace indicated some consideration to potentially contribute funds to the efforts. However, Grace has not made any recent contact with me;
    7. (g)
      Erin’s mother telephoned my office indicating she wished for the former executor to be held accountable for his actions;
    8. (h)
      Bonnie has telephoned my office and advised that she has no contact with the former executor;
    9. (i)
      I have had various communications with Attwood Marshall on behalf of Gail in respect of this matter;
    10. (j)
      Camp Quality has informed me that it does not intend to attend at the hearing of my application and does not support the commencement of any further proceedings to recover funds from Matthew, EL5 or Margaret (Annexure, volume 2, part 3, pages 474-475).

Compromise

  1. My correspondence with Whitehead Crowther deals with my attempts to compromise the estate’s claims against Matthew, EL5 and Margaret (Annexure, volume 2, part 2, pages 283-292; 297-301; 304-306; 308; 309-311; 317-318; 320; 322; 329-332; 345-347; 388-391).
  2. Because Matthew has a history of giving but breaking promises and assurances, my attempts to compromise have been on the basis that he should make a substantial payment to the estate before I enter into and conclude a commercial negotiation with him.
  3. Although Matthew was initially agreeable to that course, his solicitors, Whitehead Crowther, subsequently informed me that he required me to enter into a deed with him before any payment was made.
  4. On 13 March 2019, I submitted a draft deed (Annexure, Annexure, volume 2, part 2, pages 317318).
  5. Since then, Matthew has made some more proposals for compromise, all of which involve him making payment by way of numerous instalments over a timeframe of about six months (Annexure, volume 2, part 2, pages 302-303; 324-328; 342-344).  
  6. On 2 October 2019 I held a without prejudice meeting with Whitehead Crowther. Following this meeting and ongoing discussions, on 4 October 2019 a Deed of Settlement has been entered into with Matthew and EL5. The operation of this deed is subject to the Court providing judicial advice concerning the same (Annexure, volume 2, part 3, pages 476-506).
  1.  

“SCHEDULE 2”

SUPREME COURT OF QUEENSLAND

 REGISTRY:  BRISBANE

 NUMBER:  BS 4098 of 2018

Applicant:  GAIL GROUNDWATER

  AND

Respondent:  MATTHEW KARL ROBINSON AS EXECUTOR OF JAMES FRANCIS DAVID ROBINSON, DECEASEDORDER

Before:      Justice Davis

Date:      6 March 2020

Initiating document:  Amended application filed 7 November 2019

THE ORDER OF THE COURT IS THAT:

  1. pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld), Carla Parsons as administrator and trustee of the estate and will trusts of James Francis David Robinson, deceased, be joined as the second respondent in the proceeding;
  2. pursuant to r 667(2)(e) of the Uniform Civil Procedure Rules, paragraph 11 of the orders of Douglas J made on 3 May 2018 be set aside;
  3. pursuant to s 127 of the Land Title Act 1994 (Qld), caveat number 718754672 registered by the applicant over the property of the deceased situated at Unit 10, Condor Apartments, 2 Riverview Parade, Surfers Paradise in the State of Queensland, more particularly described as Lot 50 on BUP1922, Title Reference 15430100 (Condor unit), be removed;
  4. pursuant to s 96 of the Trusts Act 1973 (Qld), the second respondent is advised and directed that she would be justified in taking the following steps:
  1. (a)
    selling the Condor unit;
  2. (b)
    paying from the net proceeds of sale of the Condor unit:
    1. (i)
      all overdue and current body corporate levies for the Condor unit;
    2. (ii)
      all overdue and current Gold Coast City Council water rates for the Condor unit;
    3. (iii)
      all overdue and current Gold Coast City Council rates for the Condor unit;
    4. (iv)
      costs ordered to be paid to the applicant pursuant to paragraph 2 of the consent orders of Burns J made in proceeding S 8079 of 2017 on 1 September 2017 (as agreed or assessed);
    5. (v)
      costs ordered to be paid to the applicant pursuant to paragraph 12 of the orders of Douglas J made on 3 May 2018 (as agreed or assessed);
    6. (vi)
      remuneration charged by the second respondent in accordance with paragraph 7 of the orders of Douglas J made on 3 May 2018;
    7. (vii)
      such further or other administration expenses, legal costs and outlays incurred by the second respondent or for which she becomes liable in the course of the administration of the deceased’s estate, including:
      1. (A)legal costs and outlays she incurs in commencing and prosecuting the proceedings referred to in paragraphs 4(c) and (e) herein;
      2. (B)subject to further order, any costs she may be ordered to pay in the proceedings referred to in paragraphs 4(c) and (e) herein;
  3. (c)
    subject to the estate having sufficient available funds to:
    1. (i)
      pay the administrator’s remuneration and indemnify the administrator against the reasonable costs and outlays incurred by her in the proposed proceedings referred to in sub-paragraph (iii) herein; and
    2. (ii)
      subject to any further order of the court, indemnify the administrator against any costs order that may be made against her in the proposed proceedings referred to in sub-paragraph (iii) herein, commencing, and until the completion of disclosure therein, prosecuting:
    3. (iii)
      a proceeding in a court of competent jurisdiction in New South Wales against Matthew Karl Robinson, Margaret Lorraine Robinson, Scott James Francis Robinson and/or Kirk William Francis Robinson as defendants in respect of the claims referred to in paragraphs 72 to 92, 120 and 121 of the statement of facts, which is exhibit CP2 to the affidavit of Carla Parsons sworn 23 October 2019 (statement of facts);
  4. (d)
    compromising the claims in the proposed proceeding referred to in paragraph 4(c) herein generally in accordance with the deed of settlement dated 4 October 2019 which is exhibit CP3, pages 476 to 506, of the affidavit of Carla Parsons sworn 23 October 2019;
  5. (e)
    paying to:
    1. (i)
      Oliver Robinson;
    2. (ii)
      Talia Robinson (in the will of the deceased dated 6 November 2008 referred to as sister to Oliver Robinson);
    3. (iii)
      Shannen Robinson (in the will referred to as Shannon Robinson);
    4. (iv)
      Chance Robinson;
    5. (v)
      Rueben John Robinson (in the will referred to as Ruben Robinson);
    6. (vi)
      Thor William James Robinson (in the will referred to as Thor Robinson);
    7. (vii)
      Erin Pearl Robinson (in the will referred to as Pearl Robinson);
    8. (viii)
      Grace Robinson,

the amounts held by the second respondent as trustee on trust for them upon them respectively attaining the age of twenty-five years;

  1. (f)
    if the applicant makes an application to the court under s 42 of the Succession Act 1981 (Qld) in proceeding S 4245 of 2016 for the further provision made for her proper maintenance and support from the deceased’s estate in paragraphs 1(b) and (c) of the orders made by Justice Applegarth on 15 March 2017 to be varied, to pay to the applicant the varied provision and any further costs ordered by the court to be paid by the deceased’s estate to Gail Groundwater;
  2. (g)
    as trustee of the will trusts of the deceased, paying from the funds held by her on trust for Oliver Robinson, Talia Robinson, Rueben John Robinson and Thor William Robinson the costs and outlays, on the indemnity basis, of Prudence Poole as litigation guardian;
  1. the costs of:
    1. (a)
      the second respondent;
    2. (b)
      the applicant;
    3. (c)
      Prudence Poole as litigation guardian for Oliver Robinson, Talia Robinson, Thor William James Robinson and Rueben John Robinson,

be paid out of the estate of the deceased on the indemnity basis;

  1. the memorandum of advice of Mr Otto of Counsel be placed in a sealed envelope on the court file marked “Not to be opened without an order of the court”.

Signed:  

“SCHEDULE 3”

SUPREME COURT OF QUEENSLAND

 REGISTRY:  BRISBANE

 NUMBER:  BS 4245 of 2016

Applicant:  GAIL GROUNDWATER

  AND

Respondent:   MATTHEW KARL ROBINSON AS EXECUTOR OF JAMES FRANCIS DAVID ROBINSON, DECEASED

ORDER

Before:      Justice Davis

Date:      6 March 2020

Initiating document:  Amended application filed 7 November 2019

THE ORDER OF THE COURT IS THAT:

  1. pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld), Carla Parsons as administrator of the estate of James Francis David Robinson, deceased, be substituted as the respondent in the proceeding in lieu of Matthew Karl Robinson as executor of James Francis David Robinson, deceased;
  2. pursuant to r 667(2)(e) of the Uniform Civil Procedure Rules, paragraphs 1(b) and (c) of the orders of Applegarth J made on 15 March 2017 be set aside;
  3. the costs of:
  1. (a)
    Carla Parsons as administrator of the estate of James Francis David Robinson, deceased;
  2. (b)
    the applicant;
  3. (c)
    Prudence Poole as litigation guardian for Oliver Robinson, Talia Robinson, Thor William James Robinson and Rueben John Robinson, be paid out of the estate of the deceased on the indemnity basis.

Signed:

Footnotes

[1]James Robinson is Scott James Robinson. He is referred to in the statement of facts as Scott James Robinson.

[2]There is also power under s 6 of the Succession Act 1981 to give advice and directions.

[3]Without attachments, but with redactions.

[4]Who is known by the given name

[5]A reference to Ms Groundwater.

[6]The 2016 proceedings.

[7]Pursuant to s 96 of the Trusts Act 1973.

[8]Clause 3 of the deed.

[9]After set off for legitimate expenses paid.

[10]Paragraphs 74 and 75.

[11]Succession Act 1981 s 42.

[12]Who uses his second given name “James”.

[13](2000) 158 FLR 121.

[14]Page 127 [19].

[15]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [36].

[16]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [74], Glassock v Trust Company (Australia) Pty Ltd [2012] QSC 15 at [14] and see the analysis of Burns J in Corbiere & Anor v Dulley & Ors [2006] QSC 134 at [23]-[29].

[17]Paragraph 4(c) of the application in BS 4098 of 2018.

Close

Editorial Notes

  • Published Case Name:

    Groundwater v Robinson

  • Shortened Case Name:

    Groundwater v Robinson

  • MNC:

    [2020] QSC 31

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    06 Mar 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QSC 3106 Mar 2020Application for judicial advice and declarations pursuant to s 96(2) of the Trusts Act 1973; judicial advice and directions given: Davis J.

Appeal Status

No Status
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