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  • Unreported Judgment

Re Hill; Nanschild v Hill

 

[2020] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:

Re Hill; Nanschild v Hill [2020] QSC 148

PARTIES:

In proceeding BS No 5626/19

IN THE WILL OF STANLEY GORDON HILL

DEBORAH LEA NANSCHILD and VICKI JOY HILL (AS EXECUTORS OF THE ESTATE OF STANLEY GORDON HILL)

(Applicants)

v

BRENTON SHANE HILL

(Respondent)

In proceeding BS No 10296/19

DEBORAH LEA NANSCHILD

(Applicant)

v

BRENTON SHANE HILL

(Respondent)

FILE NO/S:

BS No 5626 of 2019 and BS No 10296 of 2019

DIVISION:

Trial Division

PROCEEDING:

Applications

DELIVERED ON:

1 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 28 May 2020

JUDGE:

Bowskill J

ORDERS:

In proceeding BS No 5626 of 2019:

  1. The application filed by Mr Brenton Hill on 6 April 2020 is dismissed.
  2. The executors, Ms Deborah Nanschild and Ms Vicki Hill, finally distribute the remaining funds in the estate as follows:
    1. (a)
      By paying, or causing to be paid, equal amounts of $11,050.15 to each of Ms Deborah Lea Nanschild, Ms Vicki Joy Hill and Mr Brenton Shane Hill, within seven days of the date of this order.
    2. (b)
      The amount of $11,050.15 payable to Mr Brenton Hill is to be paid by direct deposit into the following bank account: [details redacted for privacy reasons].
    3. (c)
      The executors have liberty to apply to the Court, in the event of any inability to transfer the funds to Mr Hill.
  3. These orders are the final orders in relation to proceeding BS 5626/19.
  4. Mr Brenton Shane Hill is restrained from making any further applications in proceeding BS 5626/19, or commencing any new proceedings in the Trial Division of this Court or in the District Court of Queensland or in the Queensland Civil and Administrative Tribunal against Ms Deborah Lea Nanschild and/or Ms Vicki Joy Hill, either personally or in their capacity as the executors of the will of their late father, Mr Stanley Gordon Hill, in relation to the administration of the financial affairs of the late Mr Stanley Gordon Hill, without first obtaining leave from a Judge of the Trial Division of this Court.
  5. No order as to costs.

In proceeding BS No 10296 of 2019:

  1. Mr Brenton Shane Hill is restrained from making any further applications in proceeding BS 5626/19, or commencing any new proceedings in the Trial Division of this Court or in the District Court of Queensland or in the Queensland Civil and Administrative Tribunal against Ms Deborah Lea Nanschild and/or Ms Vicki Joy Hill, either personally or in their capacity as the executors of the will of their late father, Mr Stanley Gordon Hill, in relation to the administration of the financial affairs of the late Mr Stanley Gordon Hill, without first obtaining leave from a Judge of the Trial Division of this Court.
  2. The proceeding is otherwise dismissed.
  3. No order as to costs.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – PROCEEDINGS AGAINST PERSONAL REPRESENTATIVES – where the deceased under his will appointed two of his three children to be the executors of his will, with all three children to share the estate equally – where there has been a lengthy history of disputes between the siblings appointed to be the executors, on the one hand, and the third sibling, on the other, as to the management of their father’s financial affairs, both prior to and since his death – where the deceased’s financial affairs were managed by the Public Trustee for nine years prior to his death, and the estate comprised the funds transferred to the executors by the Public Trustee – where the majority of the estate has already been distributed equally between the three beneficiaries – where the non-executor sibling applies for removal of the executors and appointment of himself in their place, on the basis of assertions of fraud and other misconduct – whether there is any basis for removal of the executors –  whether it is in the interests of justice that orders be made to finally determine the administration of the estate

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – where the applicant, one of three siblings who are equal beneficiaries of the estate of their deceased father, applies for leave to apply for a vexatious proceedings order against another sibling, in order to prevent him from instigating any further legal proceedings, against a background of 11 years of legal proceedings relating to the management of their late father’s affairs, prior to and since his death – whether it is appropriate to grant leave to make the application – whether, in the exercise of the Court’s inherent jurisdiction, a von Risefer order is appropriate instead

COUNSEL:

Ms Deborah Nanschild appeared on her own behalf on 19 and 28 May 2020

Ms Vicki Hill appeared on her own behalf on 19 May 2020

Mr Brenton Hill appeared on his own behalf on 19 and 28 May 2020

SOLICITORS:

As above

  1. [1]
    Introduction:  There are two applications presently before the court, each arising out of ongoing acrimony between adult siblings relating to their now deceased father’s personal and financial affairs.  No party has legal representation.  Ms Deborah Nanschild, Ms Vicki Hill and Mr Brenton Hill are brother and sisters, the children of Mr Stanley Hill, who passed away on 9 April 2019.[1]   Prior to their father’s death, the siblings were engaged in disputes over the management of his financial and personal affairs, in circumstances where there were concerns about his capacity following a stroke in 2008.  Since their father’s death, the siblings have been engaged in a dispute about the management of their father’s estate.  
  1. [2]
    Under the terms of the will of Mr Stanley Hill made on 19 August 2003 his daughters, Ms Nanschild and Ms Hill, were appointed the executors, and the estate was left to the three siblings equally.   Prior to Mr Stanley Hill’s death, and from about late 2009, his financial affairs had been managed by the Public Trustee.  The administration of his estate should therefore have been a straightforward matter – the estate comprised the money held by the Public Trustee; it is a modest estate; all the beneficiaries are to share equally under the terms of the will; all the beneficiaries are adults.  It has regrettably not been so.
  2. [3]
    The two applications presently before the Court are:
    1. (a)
      In proceeding 5626/19 (which was commenced with applications for the grant of probate by Ms Nanschild and Ms Hill), an application filed on 6 April 2020 (court document 40) by Mr Hill seeking orders which include the removal Ms Nanschild and Ms Hill as the executors of their father’s estate “on grounds of the defendants history of ‘fraud’ and conspiracy to bring false accusations as in Hill v Nanschild 3984/17”,[2] and seeking instead that Mr Hill be appointed the executor.
    2. (b)
      In proceeding 10296/19, an application filed on 13 May 2020 (court document 9) by Ms Nanschild seeking leave under s 5(2) of the Vexatious Proceedings Act 2005 (Qld), to apply for a vexatious proceedings order against Mr Hill. 
  3. [4]
    In her application in proceeding 10296/19, Ms Nanschild contends that the many and varied legal proceedings Mr Hill has instigated over the past 11 years have “cost me a great deal of time, distress, resources and money”.   She brings the application in order to have the current application by Mr Hill (in proceeding 5626/19) dismissed, and prevent Mr Hill from bringing any further proceedings, without leave of the Court.   Her sister, Ms Vicki Hill, is not a party to this proceeding but has filed an affidavit supporting the application by Ms Nanschild.  This proceeding was originally commenced in September 2019.  On 21 October 2019, it was adjourned to a date to be fixed (with a similar order being made on the same date in relation to an earlier application by Mr Hill in proceeding 5626/19).  A fresh application was filed by Ms Nanschild on 13 May 2020, in response to Mr Hill filing his application in proceeding 5626/19 on 6 April 2020.
  4. [5]
    In order to deal with these applications, it is necessary to set out some of the history, in so far as it is ascertainable from the material before the Court.   I will endeavour to do that chronologically.
  5. [6]
    History of the disputes:  Annexed to Ms Nanschild’s affidavit filed on 23 September 2019 (in proceeding 10296/19) is a schedule of the proceedings said to have been instigated by Mr Hill.  These are said to include proceedings in the Supreme Court, the District Court, the Queensland Civil and Administrative Tribunal (QCAT) and the South Australian Civil and Administrative Tribunal (SACAT) and the South Australian Magistrates Court.  However, the material before the Court does not include documents which clearly demonstrate the nature of all of these various proceedings, or what happened in relation to them.
  6. [7]
    To the extent I am able to discern from the objective material the nature of the various disputes, in various forums, that have been the subject of litigation between or involving the parties, it is as follows.   I have focussed upon what I regard as objective, independent documents (as opposed to assertions by the various parties); and where earlier proceedings in this court have been referred to, I have reviewed the files in those proceedings. 
  7. [8]
    There appears to have been a proceeding in the South Australian Magistrates Court between Mr Hill (as plaintiff) and Ms Nanschild (as defendant) in 2009.  An order was made on 16 March 2009, recording that the matter had settled, on the basis of an agreement by Ms Nanschild to pay Mr Hill $2,875 in settlement of his claim, and that “on behalf of the estate of Stanley Gordon Hill the executors undertake to make no claims on any property that may have been received by the plaintiff from Stanley Gordon Hill”.[3]    The claim by Mr Hill appears to have related to money held in a bank account by Ms Nanschild on his (that is, Mr Brenton Hill’s) behalf.   The property received by Mr Hill seems to have included an Edison record player, “wind-up 78 player”, Roland keyboard and Hohner mouth organs.[4]  I note that the parties, variously (including in these documents, but also others) at times refer to Ms Nanschild and Ms Hill as “the executors”, and to the estate of Mr Stanley Hill, even prior to his death.
  8. [9]
    In 2009, there were also proceedings in QCAT, under the Guardianship and Administration Act 2000 (Qld), involving applications for the appointment of an administrator and for the appointment of a guardian for Mr Stanley Hill.  It is not clear from the material who made these applications; although there were multiple applications.  It appears to be the case that there were cross-applications by both Ms Nanschild and Mr Hill,[5] but also the involvement of the Public Trustee.  Ultimately, an order was made on 19 January 2010, appointing the Public Trustee as the administrator for Mr Stanley Hill for all financial matters; and declaring the enduring power of attorney made by Mr Stanley Hill (appointing Ms Nanschild as his attorney) invalid.[6]
  9. [10]
    In relation to the enduring power of attorney, it seems an investigation was carried out by the Adult Guardian in relation to that matter, in 2009.[7]  Whilst Ms Nanschild’s affidavit does not include a copy of the investigation report, there is a copy attached to a document headed “Notice in support of caveat” filed by Mr Hill in proceeding BS 5626/19 on 5 June 2019.  The investigation report of the Adult Guardian is dated 22 October 2009.  It is recorded in the report that Mr Stanley Hill had suffered an acquired brain injury following a stroke in July 2008, resulting in a severe cognitive impairment.  Findings were made that Ms Nanschild had breached various obligations under the Powers of Attorney Act 1998, including in relation to record keeping, gifting Mr Stanley Hill’s property and making loans from his funds to herself and Ms Hill.  A concern was raised in relation to Mr Stanley Hill’s capacity to grant the enduring power of attorney, as it was signed on 31 July 2008, following his stroke on 28 July 2008.
  10. [11]
    In an affidavit filed by Ms Nanschild, she contends these matters were “disproved” in 2009 by QCAT.[8]  I have been unable to find, in any of the many affidavits filed by the parties in the various proceedings to which I have referred, a QCAT document addressing this issue.  There is evidence that Ms Nanschild objected strenuously to the process and outcome of the Adult Guardian’s investigation, as did Ms Vicki Hill.[9]  Consequently, an internal review of that process and outcome was undertaken.[10]  The material before the court does not appear to include any evidence of what the outcome of that internal review was.  That may have been overtaken by the appointment of the Public Trustee in January 2010.  What can be said, though, is that there were orders made by both QCAT and SACAT subsequently (as discussed below), which again appointed Ms Nanschild (with Ms Hill) as the guardian for Mr Stanley Hill’s personal affairs.
  11. [12]
    Moving forward, there were further QCAT proceedings in 2015, resulting in an order made on 18 December 2015, appointing Ms Nanschild and Ms Vicki Hill as guardians for Mr Stanley Hill for all personal matters.[11]  
  12. [13]
    There were proceedings in SACAT in 2016, in respect of which Ms Vicki Hill and Mr Brenton Hill were applicants (seeking administration and guardianship orders).  On 3 March 2016, an order was made appointing the Public Advocate as the full guardian of Mr Stanley Hill (and Ms Hill’s and Mr Hill’s applications were dismissed).[12]
  13. [14]
    In 2016 Mr Hill attempted to commence proceedings in this Court against the Public Trustee, seeking revocation of the Public Trustee’s appointment as administrator (proceeding BS 2018/16).   A review of the court’s file in that proceeding reveals the claim was discontinued four days after it was filed.[13]
  14. [15]
    Also in 2016, QCAT conducted a review of the appointment of the Public Trustee as administrator for Mr Stanley Hill for financial matters, and on 9 June 2016 continued that appointment.[14]     The material includes a “Tribunal Briefing Report” from the Public Trustee to QCAT, dated 4 February 2016.[15]  In the section “matters of interest/concern”, the report records:

“The Public Trustee is appointed under a full administration order dated 19 January 2010.  I confirm that Ms Deborah Nanschild and Ms Vicki Hill are the appointed guardians as per the order dated 18 December 2015.

The Public Trustee receives clients full Age Pension on a fortnightly bases.

The client resides permanently in a nursing home and adheres well to all budget requirements.  The client has recently relocated to a new nursing home in Adelaide.  This decision was made by the appointed guardians.

The Public Trustee has found that there is significant family conflict between client’s son, Mr Brenton Hill and the appointed guardians, Ms Deborah Nanschild and Ms Vicki Hill.

Mr Brenton Hill often contacts the Public Trustee to request funds.  Furthermore, Mr Brenton Hill often queries the Public Trustee’s authority and requests that he himself be appointed as Financial Administrator. …”

  1. [16]
    In the section headed “matters attended to”, the report records:

“The Public Trustee has established all external assets held by client and an annual budget has been established in consultation with the Nursing Home.

The Public Trustee pays for client’s Nursing Home account, Chemist account, Private Health Insurance, Telephone and Doctors account.

The Public Trustee has assisted the appointed guardians in transitioning Mr Stanley Hill over to the new Nursing Home.  The Public Trustee is currently in the process of completing/signing the Residential Care Agreement.”

  1. [17]
    In 2017, Mr Hill filed an application in this court, which was given proceeding number 3984/17, seeking leave to commence a private prosecution against Ms Nanschild and Ms Hill, as well as two other people as “accessories”, for deception and dishonesty.  A supporting affidavit of Mr Hill, filed at the same time, annexes material relating to previous QCAT proceedings, and including the 2009 Adult Guardian’s investigation report (amongst other things).   This application was dismissed on 10 May 2017.
  2. [18]
    In 2018, Ms Nanschild and Ms Hill made an “urgent application for interim guardianship order (with special powers)” in SACAT.  On 30 October 2018, an order was made appointing Ms Nanschild and Ms Hill “full interim guardians” of Mr Stanley Hill, until 20 November 2018.[16]   Another order was made by SACAT on 19 November 2018, on the application of Ms Nanschild and Ms Hill, appointing them full guardians of Mr Stanley Hill “until further order of the Tribunal”.[17]   The order made records a finding that the “health or safety of Stanley Gordon Hill or the safety of others would be seriously at risk if an order is not made”.
  3. [19]
    Mr Stanley Hill passed away on 9 April 2019.
  4. [20]
    In May 2019, proceeding 5626/19 was commenced in this Court, by the filing of an application for probate by each of Ms Nanschild and Ms Hill.  One day after Ms Nanschild’s application was filed, Mr Hill filed a caveat “against a grant in relation to the estate”.  In a “notice in support of caveat” filed on 5 June 2019, Mr Hill alleged that there was a later will of their father, which provided only for Ms Vicki Hill to be the executor, but similarly for the three children to share the estate equally.  He also said he did not believe Ms Nanschild to be a fit and proper person to act as executor, referring to the report from the Adult Guardian dated 22 October 2009 (discussed above).  
  5. [21]
    On 17 June 2019, Ms Nanschild and Ms Hill filed an application seeking removal of the caveat.  By the end of June 2019 Mr Hill had obtained legal representation.  An application was filed by Mr Hill in this proceeding (5626/19) on 26 June 2019, seeking an order that the Public Trustee be appointed as administrator of the estate.    On 1 July 2019, Mullins J made orders:
    1. (i)
      that if the caveator (Mr Hill) wishes to pursue his allegation that there is a later will made by Mr Stanley Hill, than the will made in August 2003, he must file and serve on the defendants a proceeding to prove the later will in solemn form on or before 12 August 2019;
    2. (ii)
      adjourning the application for removal of the caveat and the grant of probate of the will made in August 2003 to a date to be fixed after any withdrawal of the caveat or 12 August 2019, whichever is earlier; and
    3. (iii)
      adjourning Mr Hill’s application filed 26 June 2019 to a date to be fixed.
  6. [22]
    No application was filed by Mr Hill, in accordance with order 1 made by Mullins J.   Mr Hill did, however, withdraw the caveat (with the notice of withdrawal of caveat being filed on 11 September 2019). 
  7. [23]
    Consequently, probate of the (2003) will was granted to Ms Nanschild and Ms Hill on 12 September 2019.
  8. [24]
    Also, in August 2019, Mr Hill commenced a family provision application in the District Court. 
  9. [25]
    On 17 September 2019 Mr Hill filed another application (in proceeding 5626/19) seeking orders that the Public Trustee be appointed administrator of the estate, in the place of Ms Nanschild and Ms Hill.   Submissions filed in support of that application, bearing the name of Mr Hill’s then lawyer, inauspiciously begin with the sentence:  “It is common ground that the executors hate Mr Hill and Mr Hill hates the executors”.  It seems communications between the parties did not improve with the involvement of a lawyer for one of them.  
  10. [26]
    Mr Hill’s application was listed before Dalton J on 19 September 2019.  Included in the material before Dalton J was a statement of assets and liabilities of Mr Stanley Hill, prepared by the Public Trustee, which recorded an item “Loans to Brenton Hill” of $5,500 (exhibit AF to the affidavit which is court document 27).  Dalton J made an order requiring Mr Hill to make an affidavit swearing to any knowledge he has of a loan to him of $5,500; and otherwise adjourned Mr Hill’s application filed 17 September 2019 (for removal of the executors) to 21 October 2019.    It does not appear that an affidavit was filed.  However, I note that, as part of the material filed by Ms Nanschild in proceeding 10296/19, there is correspondence from her to Mr Hill’s then solicitor, suggesting that this entry was a “clerical error”, with the actual amount being $1,500.[18]
  11. [27]
    The application next came on before Boddice J on 21 October 2019.  By this time, Ms Nanschild had filed her application for leave to make an application under the Vexatious Proceedings Act 2005 for a vexatious proceedings order directed at Mr Hill (10296/19).  
  12. [28]
    Justice Boddice ordered that both Ms Nanschild’s application in proceeding 10296/19 and Mr Hill’s application (for removal of the executors) in proceeding 5626/19 be adjourned to a date to be fixed.  That occurred in circumstances where there was an agreement reached, on that day, that the executors would distribute most of the estate ($240,000) equally to the three beneficiaries (Mr Hill, Ms Nanschild and Ms Hill); and Mr Hill would withdraw his application for removal of the executors and discontinue the family provision application.[19]
  13. [29]
    Consistently with that agreement, the family provision application in the District Court was discontinued on 22 October 2019.[20]
  14. [30]
    However, inconsistently at least with the spirit of that agreement, on 6 April 2020, Mr Hill – now representing himself again – filed a further application in proceeding 5626/19 (which is the application presently before me for hearing), seeking the following orders:

“1. That of enforcement of the affidavit sworn 16th October 2019 pursuant to rule 300 stay of enforcement ucpr 1999

  1. That the defendants [Ms Nanschild and Ms Hill] be duly charged for ‘fraud’ pursuant to Chap 37 s408c Fraud Criminal code act 1899
  1. That the defendants be duly charged for ‘conspiracy’ pursuant to s131 Conspiracy to bring false accusation Criminal code act 1899
  1. That the defendants be removed as executors and trustees on grounds of ‘fraud’ and ‘conspiracy to bring false accusation’
  1. That the defendants be removed as executors and trustees on grounds pursuant to rule 643 Relief against neglect or refusal by executor administrator or trustee ucpr 1999
  1. That the plaintiff [Mr Brenton Hill] be appointed executor and trustee and that of administrator of the estate pursuant to rule 638(1) Administration pending proceedings ucpr 1999
  1. That the public trustee (qld)(sa) and the executors and trustees provide disclosure by way of discovery rule 415; 415A; 416; 418; 419; 420; 420A; 421  ucpr1999”
  1. [31]
    A supporting affidavit of Mr Hill filed on the same day once again references “fraud” on the basis of proceeding 3984/17 (referred to in paragraph [17] above).  This affidavit annexes a document, headed “current issues of fraud to date”, which asserts, among other things, that there is about $100,000 missing from the estate of Stanley Hill.  The assertions of a “conspiracy to bring false accusation” are said to be based on false accusations by Ms Nanschild and Ms Hill “relative to mental illness and methods of stalking”. This affidavit otherwise annexes many of the same documents that are annexed to affidavits filed in the various proceedings on both sides of this long-running dispute.
  2. [32]
    Ms Nanschild filed an affidavit in relation to this application annexing a “final statement” in relation to the estate, which shows that, excluding an amount of $2,500 (attributable to the amount for the Edison Gramophone said to be owing by Mr Hill, and unidentified “estate goods” held by Mr Hill), there is a sum of $33,150.50 left to be distributed from the estate.[21]
  3. [33]
    The statement shows that, from the $283,674.57 transferred by the Public Trustee, relatively modest amounts have been deducted for payment to the nursing home, death and cremation expenses, a chemist account, probate expenses, legal advice and funeral and burial expenses (totalling just over $10,500); the amount of $240,000 has already been distributed to the beneficiaries; and there remains $33,150.50 to be distributed.
  4. [34]
    Hearing adjourned from 19 May to 28 May 2020:  At the hearing of these applications before me on 19 May 2020 it became apparent that Ms Nanschild and Ms Hill had not received the affidavit of Mr Hill filed on 6 April 2020 (it seems there was an attempt to serve it by email, but being a large document it was not able to be opened).  Both for that reason, and to enable me to read the material, I adjourned the further hearing of Mr Hill’s application to 28 May 2020, and reserved my decision in relation to Ms Nanschild’s application in proceeding 10296/19, until 28 May 2020.  I arranged for Ms Nanschild to be given two hard copies of Mr Hill’s affidavit (one for her, and one for her to post to Ms Hill, who appeared by telephone from South Australia).  
  5. [35]
    I also directed that Ms Nanschild provide a further affidavit, attaching any statements which had been provided by the Public Trustee in relation to its management of Mr Stanley Hill’s financial affairs, and any other documents which she may have in her possession in relation to the prior QCAT proceedings.  A further affidavit of Ms Nanschild was filed on 25 May 2020, annexing, among other things, the statements provided by the Public Trustee.
  6. [36]
    At the time of making those orders, Mr Hill indicated he would like his application to be adjourned to July 2020, to give his “investigators” time to do their work.  I refused that as I could see no basis on which “investigators” should have any involvement in, or affect the timely disposition of, these legal proceedings; and on the basis of the overriding obligation imposed on the court and the parties by rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) to proceed in an expeditious way.
  7. [37]
    Mr Hill filed a further application in proceeding 5626/19, on 25 May 2020, seeking orders for the adjournment of this matter to 14 July 2020 “on the grounds of Covid-19 restrictions to gather further evidence” and “to engage independent discovery of records of the public trustee”, referring to this aspect of his application filed on 6 April 2020. 
  8. [38]
    Mr Hill also attempted, on 27 May 2020, to file a further application, seeking that “an expert be brought in”, to be appointed by the court.  On that day, I directed the registry not to accept that document for filing. 
  9. [39]
    At the resumed hearing on 28 May 2020, I refused Mr Hill’s application to adjourn the further hearing of his application.  No proper basis for delaying the determination of the application was put forward by Mr Hill.  Mr Hill has had ample opportunity to put whatever material he seeks to rely upon before the court, over the length of time that the various applications have been agitated both prior to and since the grant of probate in September 2019.
  10. [40]
    Determining Mr Hill’s application:  Proceeding 5626/19 is concerned with the administration of the estate of the late Mr Stanley Hill.  The administration of the estate should be finalised without any further delay, time or resources (whether financial or personal) being expended. 
  11. [41]
    I am not persuaded on the material before the court that there is any basis on which to remove the executors; let alone make an order for the appointment of Mr Hill in their place.  There is no evidence calling into question the actions of the executors in the administration of the estate, keeping in mind that the administration of the estate has only (and can only have) been undertaken since the death of Mr Stanley Hill in April 2019.
  12. [42]
    As I have already said, the estate is almost finalised, with only $33,150.50 left to distribute.  There is simply no justification for introducing a new administrator at this stage.[22]   Accordingly, paragraphs 5, 6 and 7 of Mr Hill’s application are refused.
  13. [43]
    The other orders sought by Mr Hill in his application filed 6 April 2020 are misconceived. 
    1. (a)
      As to paragraph 1 of the application, it is not possible to grant a “stay of enforcement” of an affidavit.
    2. (b)
      As to paragraphs 2 and 3 of the application, it is not within the power of this court to order that the defendants be charged for fraud or conspiracy.  Nor, I would add, is there any evidence of such things before me.   As already noted, Mr Hill’s earlier attempt to obtain leave to commence a private prosecution was dismissed.
    3. (c)
      As to paragraph 7, there is no basis on which to make orders for the Public Trustee, which is not a party to the proceeding, to provide disclosure; nor are such orders appropriate as against Ms Nanschild and Ms Hill, in the circumstances.  Probate has been granted; no basis for their removal as executors has been shown; and in the interests of justice, both as a matter of fairness and efficiency, the estate should be finalised.
  14. [44]
    The application filed by Mr Hill on 6 April 2020 is dismissed.  
  15. [45]
    For completeness, I note that in further submissions filed on 25 May 2020, Ms Nanschild (on behalf of the executors) contends the further application filed by Mr Hill on 6 April 2020 is “in breach of contract” (referring to the settlement agreement reached in October 2019).  It is unnecessary to address this argument, as I have found, as a matter of substantive determination, that the application is without merit and should be dismissed.
  16. [46]
    It is in the interests of justice that the litigation relating to this modest estate be brought to an end.  That can be done by making an order that the remaining funds be distributed equally between the three beneficiaries, consistently with the terms of the will.   Whilst I note the disputed issue about whether or not Mr Hill has already had the benefit of some of their father’s property and therefore should receive less than one-third, I cannot determine where the merits of that dispute lie on the material before me (and there is a question about whether that was affected by the settlement recorded in the order of the South Australian Magistrates Court).  In the interests of finality, and to enable the administration of the estate to be brought to an end, I propose to order that the executors distribute the remaining funds equally to each of the beneficiaries – that is, a payment of $11,050.15 to each of the three beneficiaries, Ms Nanschild, Ms Hill and Mr Hill.
  17. [47]
    I raised this with Ms Nanschild at the further hearing of this matter on 28 May 2020, as a practical means of finally resolving the proceedings, and she did not object.  Ms Hill did not appear on 28 May 2020, but Ms Nanschild assured me that I could proceed on the basis Ms Hill, her co-executor, would not object either. This reflects a more favourable outcome for Mr Hill, than Ms Nanschild and Ms Hill contend he is entitled to; but it is a practical and sensible way of bringing the administration of the estate to an end.[23]
  18. [48]
    Following the hearing, Mr Hill provided his bank account details to the court, for inclusion in the order.[24]  
  19. [49]
    Determining Ms Nanschild’s application:  As far as the application by Ms Nanschild in proceeding 10296/19 is concerned, in my view that too is misconceived.   Clearly there has been ongoing conflict and acrimony between Ms Nanschild and Ms Hill, on the one hand, and Mr Hill, on the other.  That conflict has manifested in the parties invoking the assistance of various courts and tribunals over a number of years.   The circumstances have not been assisted by the lack of legal representation on all sides.  With the orders I propose to make today in relation to proceeding 5626/19, that will bring to an end litigation in relation to the estate of their father, Mr Stanley Hill. 
  20. [50]
    In so far as Mr Hill has made assertions about the management of Mr Stanley Hill’s affairs prior to his death, as is apparent, the Public Trustee administered those affairs from early 2010, a period of about nine years prior to Mr Stanley Hill’s death, and then transferred Mr Stanley Hill’s assets to the executors to be administered in accordance with his will.   I find no basis for a finding of any misconduct by Ms Nanschild and/or Ms Hill, as executors of the deceased’s estate (which is only after the deceased’s death, in April 2019).  In addition, no basis has been shown for finding any misconduct could have taken place in the period whilst the Public Trustee was the administrator (January 2010 to April 2019). 
  21. [51]
    In so far as Mr Hill relies upon the 2009 Adult Guardian’s report as a basis for making assertions of misconduct against Ms Nanschild prior to the appointment of the Public Trustee, it is reasonable to infer that, if there was any prior misconduct, which could have given rise a legitimate claim for recovery by Mr Stanley Hill, it would have been pursued by the Public Trustee on Mr Stanley Hill’s behalf.  There is no evidence of that; and yet there is evidence that Ms Nanschild, together with Ms Hill, were subsequently appointed as the guardians for Mr Stanley Hill, for his personal affairs.
  22. [52]
    I am not persuaded that in the circumstances of this unfortunate acrimonious family dispute, resort to the Vexatious Proceedings Act 2005 is appropriate.  A court may only make a vexatious proceeding order if it is satisfied that the person against whom the order is sought is “a person who has frequently instituted or conducted vexatious proceedings in Australia”:  s 6(1)(a).  The term “vexatious proceedings” is defined in the schedule to the Act as including a proceeding that is an abuse of the process of a court or tribunal; a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; a proceeding instituted or pursued without reasonable ground; and a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve any wrongful purpose.  
  23. [53]
    As far as I am able to discern, from the materials before the court, although there have been multiple proceedings of various kinds, in various courts and tribunals in Queensland and South Australia, involving the present parties, they have not only been instituted by Mr Hill; although it is reasonable to infer the proceedings instituted by Ms Nanschild and Ms Hill were in order to deal with or address issues raised or allegations made by Mr Hill.   In some respects, applications or assertions by both sides have at times been misguided.  For the most part, that would seem to be due to the absence of legal advice and representation, rather than a deliberate intent to harass or annoy, cause delay or detriment, or for another wrongful purpose. 
  24. [54]
    Having said that, I am persuaded, having regard to the history of proceedings as set out above, that there is justification to Ms Nanschild’s and Ms Hill’s expressions of frustration and concern about ongoing re-agitation by Mr Hill of the issues which have been ventilated over the past many years; and of the need for orders to be made to address that.  It is now getting to the point where, if Mr Hill continues to persist in his various attempts to litigate disputes with Ms Nanschild and/or Ms Hill in relation to the administration of the late Mr Stanley Hill’s affairs, either prior to or since his death, that could well amount to an abuse of the process of the court.
  25. [55]
    The unfortunate circumstances of the present, ongoing, dispute between these parties does not, in my view, provide a basis for the exercise of the jurisdiction conferred under the Vexatious Proceedings Act 2005.  However, I am of the view that in the exercise of the court’s inherent power to control its own processes,[25] it is appropriate to make an order preventing Mr Hill from making any further applications in proceeding 5626/19, or commencing any new proceedings in the Trial Division of this Court or in the District Court of Queensland or in QCAT against Ms Deborah Nanschild and/or Ms Vicki Hill, either personally or in their capacity as the executors of the will of their late father, Mr Stanley Hill, in relation to the administration of the financial affairs of the late Mr Stanley Hill, without first obtaining leave from a Judge of the Trial Division of this Court.   I regard an order in these terms as appropriate, because:
    1. (a)
      in so far as the litigation concerning the late Mr Stanley Hill’s estate is concerned, the effect of the orders I make today in proceeding 5626/19 is to finally determine those proceedings.  That should be sufficient to prevent any further applications or proceedings being commenced in relation to the administration of the estate,[26] but the history of proceedings outlined above supports the inference that may not be the case, and accordingly an order in these terms is warranted;
    2. (b)
      in so far as any other asserted claims or allegations by Mr Hill against either of his sisters, related to the management of the affairs of their late father prior to his death, are concerned, again, in all the circumstances, it is in the interests of justice that no further proceedings be permitted to be commenced (and thus require any involvement or deployment of resources by Ms Nanschild and/or Ms Hill), without Mr Hill first obtaining leave from a Judge of this Court to do so.
  26. [56]
    Orders:  I propose to make an order in those terms in each of proceedings 5626/19 and 10296/19.[27]
  27. [57]
    Although both Mr Hill and Ms Nanschild in their respective applications have sought orders for costs, as they are not legally represented there is no basis for any orders for professional costs.  In so far as either of them have incurred filing fees, they should each bear their own costs.
  28. [58]
    The orders of the Court therefore are:
    1. (a)
      In proceeding BS 5626/19, the Court orders that:
      1. The application filed by Mr Brenton Hill on 6 April 2020 is dismissed.
      2. The executors, Ms Deborah Nanschild and Ms Vicki Hill, finally distribute the remaining funds in the estate as follows:
        1. By paying, or causing to be paid, equal amounts of $11,050.15 to each of Ms Deborah Lea Nanschild, Ms Vicki Joy Hill and Mr Brenton Shane Hill, within seven days of the date of this order.
        2. The amount of $11,050.15 payable to Mr Brenton Hill is to be paid by direct deposit into the following bank account:  [the account details provided by Mr Hill, in exhibit 1, will be set out in the order made today, but for privacy reasons are not set out in this published judgment].
        3. The executors have liberty to apply to the Court, in the event of any inability to transfer the funds to Mr Hill.
      3. These orders are the final orders in relation to proceeding BS 5626/19.
      4. Mr Brenton Shane Hill is restrained from making any further applications in proceeding BS 5626/19, or commencing any new proceedings in the Trial Division of this Court or in the District Court of Queensland or in the Queensland Civil and Administrative Tribunal against Ms Deborah Lea Nanschild and/or Ms Vicki Joy Hill, either personally or in their capacity as the executors of the will of their late father, Mr Stanley Gordon Hill, in relation to the administration of the financial affairs of the late Mr Stanley Gordon Hill, without first obtaining leave from a Judge of the Trial Division of this Court.
      5. No order as to costs.
    2. (b)
      In proceeding BS 10296/19, the Court orders that:
      1. Mr Brenton Shane Hill is restrained from making any further applications in proceeding BS 5626/19, or commencing any new proceedings in the Trial Division of this Court or in the District Court of Queensland or in the Queensland Civil and Administrative Tribunal against Ms Deborah Lea Nanschild and/or Ms Vicki Joy Hill, either personally or in their capacity as the executors of the will of their late father, Mr Stanley Gordon Hill, in relation to the administration of the financial affairs of the late Mr Stanley Gordon Hill, without first obtaining leave from a Judge of the Trial Division of this Court.
      2. The proceeding is otherwise dismissed.
      3. No order as to costs.

Footnotes

[1] In these reasons, references to Mr Hill are to Mr Brenton Hill.

[2] Affidavit of Mr Hill filed 6 April 2020 (5626/19) at [2].

[3] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at p 24 of exhibits.

[4] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit T.

[5] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit R.

[6] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at pp 22-23 of exhibits.

[7] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit S.

[8] See the affidavit of Ms Nanschild filed on 17 June 2019 (BS 5626/19) at [15].

[9] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit S, at pp 1-4 and 5.

[10] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit S, at p 6.

[11] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at p 21 of exhibits.

[12] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at pp 16-17 of exhibits.

[13] See also affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at pp 18-19 of exhibits.

[14] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at p 15 of exhibits.

[15] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit Q.

[16] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at p 11 of exhibits.

[17] Affidavit of Ms Nanschild filed 23 September 2019 (10296/19), at p 9 of exhibits.

[18] Affidavit of Ms Nanschild filed 15 October 2019 (10296/19), exhibit I at p 2.

[19] Affidavit of Ms Nanschild filed 25 May 2020 (5626/19), at [2] and exhibit B.

[20]Affidavit of Ms Nanschild filed 25 May 020 (10296/19), exhibit B.

[21] Affidavit of Ms Nanschild filed 13 May 2020 (5626/19).

[22] See generally Budulica v Budulica [2017] QSC 60 at [26]-[29].

[23] At the end of the hearing on 28 May 2020, I referred to the remaining amount being divided by 3, which would leave an amount of 50 cents, which I suggested be added to Mr Hill’s portion for the sake of ease, over objection by Ms Nanschild.  In fact the remaining amount can be almost completely divided by 3, by the payment of $11,050.15 to each beneficiary (because the final figure of $33,150.50 represents a rounding up from the actual figure which is $33,150.46), which is what I propose to do.

[24] The email from Mr Hill to my associate has been marked exhibit 1.

[25] See von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681 at [13]-[25].

[26] See Ant Projects Pty Ltd v Brooks [2019] QCA 259 at [69].

[27] Noting the provisions of s 7 of the Civil Proceedings Act 2011 (Qld) and rule 658 of the Uniform Civil Procedure Rules 1999.

Close

Editorial Notes

  • Published Case Name:

    Re Hill; Nanschild v Hill

  • Shortened Case Name:

    Re Hill; Nanschild v Hill

  • MNC:

    [2020] QSC 148

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    01 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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