Masih v Masih[2021] QSC 207

SUPREME COURT OF QUEENSLAND

The application

1. [1]
   Prem Mani Masih (“the deceased”) made a will on 20 January 1993 and died on 9 April 2020.  A copy of this will exists, but the original cannot be found.  The issue before the Court is whether the deceased should be presumed to have destroyed the original will with the intention of revoking it, such that he is taken to have died intestate.
2. [2]
   The applicant, Edwin Premil Masih, is the biological son of the deceased.  The applicant sought various orders, which were refined at trial to the following:

   1. (a)
      the Court declares that the deceased died intestate;
   2. (b)
      letters of administration on intestacy be granted to the applicant, subject to the formal requirements of the registrar; and
   3. (c)
      all parties’ costs be paid by the estate on the indemnity basis, as agreed or assessed. 
3. [3]
   The applicant has two biological children, Edward Elvis Sanjay Masih (who is the respondent in this matter) and Edweana Elizabeth Shalini Chadwick.^[1]  The deceased and his wife immigrated from Canada to Australia in 1983 with their grandchildren, while the applicant remained in Canada.  The deceased and his wife formally adopted both the respondent and Edweana when they immigrated to Australia.
4. [4]
   The respondent is therefore both the deceased’s grandson and adopted son.  The respondent opposes the application and seeks an order that the application be dismissed.   

Issues for determination

5. [5]
   In Frizzo v Frizzo,^[2] Applegarth J followed the judgment of the New South Wales Supreme Court in Cahill v Rhodes,^[3] and held that five matters must be established for a copy of a “lost” will to be admitted to probate:

   1. (a)
      there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person;
   2. (b)
      that document revoked all previous wills;
   3. (c)
      the presumption that when a will is not produced it has been destroyed has been overcome;
   4. (d)
      there is evidence of its terms; and
   5. (e)
      there is either evidence of due execution or that the deceased person intended the document to constitute his or her will.
6. [6]
   The issue in this application is whether the third requirement has been satisfied; i.e. whether the presumption that when a will is not produced it has been destroyed has been overcome.
7. [7]
   A presumption of destruction arises where an original will was in the custody of the testator prior to their death, and it is either lost or missing on their death.  That presumption was described in Welch v Phillips:^[4]

“[I]f a will traced to the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.”

8. [8]
   Peter Lyons J in In the will of Leonie Warren deceased,^[5] adopted the description of the presumption given in Lee’s Manual of Succession Law: 

“… the law presumes that, if a will last traced to the possession of the deceased testator cannot be found, it was destroyed by the testator with the intention of revoking it.”

9. [9]
   As the original of the deceased’s will cannot be found, there are two questions for the Court to decide:

   1. (a)
      whether the deceased was, at some time, in possession of the original of his will dated 20 January 1993; and
   2. (b)
      if so, whether the presumption that the deceased destroyed that will with the intention of revoking it is rebutted by the evidence. 
10. [10]
    Both parties agree that:

    1. (a)
       the applicant bears both the legal and evidential onus of proof in relation to the issue of whether the original will has been traced into the possession of the deceased; and
    2. (b)
       the respondent bears both the legal and evidential onus of proof in relation to whether the presumption of revocation by destruction is rebutted. This issue only arises if the applicant proves that the will can be traced into the possession of the deceased.

Background

11. [11]
    On 20 January 1993, the deceased made a will through Melville McGregor Lawyers.  The deceased’s wife and the applicant also made wills through Melville McGregor Lawyers on this date.  The deceased’s will complied with all formal execution requirements and revoked all previous wills.  Paragraph 6 of the deceased’s 1993 will set out how his property should be provided and stated:  

“I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situate unto and to the use of my Trustees UPON TRUST as follows:

1. (a)
   As to my house and land at Lot 91 Blue Vista Drive, Perulpa Island, for my son EDWIN PREMIL MASIH absolutely.
2. (b)
   As to my land at Lot 92 Blue Vista Drive, Perulpa Island, for my grandson EDWARD MASIH absolutely.
3. (c)
   As to my land at 125 Belong Street, Macleay Island, to my granddaughter EDWEANA MASIH absolute.
4. (d)
   As to my house and land at 11 Ferguson Drive, Yatala, for my grandson EDWARD MASIH with the desire that it be retained as a family home provided that EDWIN PREMIL MASIH and EDWEANA MASIH may reside in the property as long as they desire provided they pay a proportionate share of the amounts for rates, insurance, maintenance and upkeep of the property.
5. (e)
   As to the rest and residue of my estate for such of my son EDWIN PREMIL MASIH and my grandchildren EDWEANA MASIH and EDWARD MASIH as shall survive me and if more than one in equal shares.
6. (f)
   PROVIDED HOWEVER that if any said child or said grandchild of mine shall predeceased me leaving a child or children him or her surviving then such child or children shall take and if more than one in equal shares the share which his, her or their parent would have taken under this my Will had such parent survived me.”

12. [12]
    The three properties referred to in paragraphs 6(a), (b) and (c) of the deceased’s will were no longer owned by the deceased at his death. Prakash Mani Masih, one of the substituted executors named in the deceased’s will, died on 31 May 2001.
13. [13]
    On 21 January 1993, Melville McGregor Lawyers sent a letter enclosing copies of the wills of the deceased, his wife and the applicant to the Yatala address where the deceased and his wife lived with Edweana and the respondent.  The applicant did not live at this address.
14. [14]
    On 3 February 1994, the deceased, his wife and the applicant made enduring powers of attorney through Melville McGregor Lawyers.
15. [15]
    All of the 1993 wills and the 1994 enduring powers of attorney were initially retained in the safe custody of Melville McGregor Lawyers.
16. [16]
    However, on an unknown date in 1994, the enduring powers of attorney of the deceased, his wife and the applicant were released from the safe custody of Melville McGregor Lawyers.
17. [17]
    Ownit Conveyancing took over the practice of Melville McGregor Lawyers in 2008.
18. [18]
    The parties agree that the original wills of the deceased, his wife and the applicant are no longer in the safe custody of Ownit Conveyancing and the original of the deceased’s will cannot be found.  In addition, the parties agree that the applicant has never had possession of his own original will.

The family dynamics

19. [19]
    The deceased, his wife, the respondent and Edweana all moved to Australia in 1983, whilst the applicant stayed in Canada.  The applicant is not sure when he came to Australia. In his affidavit material he stated it was in or about 1987, but at the hearing he stated that it was around 1991.  He agrees he last lived with his parents around 1988 or 1989. 
20. [20]
    The applicant agrees that his parents were of the belief that sons are obliged to look after their parents in old age.  He states his parents never asked him to do this task and he never did; he was living his own life.  The respondent took on that role, along with his sister Edweana.
21. [21]
    The applicant describes a difficult relationship with the deceased; it has been labelled as controlling.  The deceased would insult him and call him names in front of other people.  The applicant stated:

“My dad was – was sort of a very disciplined person.  So when – I wasn’t very good – I wasn’t a very good son, or a good husband, or a good father, because I was a rebel.  Sort of a rebel.”

22. [22]
    However, the applicant’s mother was much nicer to him and gave him quite a lot of money over the years.  The deceased did not like that the applicant was given money by his mother. 

23. [23]
    The deceased appears to have had a good relationship with the respondent.  The parties agree that the respondent was a carer to the deceased and his wife from January 2007 until their respective deaths.

24. [24]
    The deceased’s wife died on 26 March 2015.  After her death, the deceased transferred funds to bank accounts held jointly with the respondent.  The balance of those accounts as at the date of the deceased’s death was approximately $401,000.00.  The deceased’s funeral expenses were subsequently paid from those funds.
25. [25]
    The applicant married Grace Masih in 1987.  Grace Masih states that, from 2010 to 2020, when she visited the deceased’s house, she saw that the relationship between the deceased and Edweana’s husband had deteriorated and they were avoiding each other.  Grace Masih states that, from 2015 onwards, the relationship between the deceased and Edweana had deteriorated and they were not talking to each other.  

Edweana sees a copy of the will and the original powers of attorney in 1994

26. [26]
    Edweana gave evidence that, in about 1994, she was helping her grandmother look for something when she found an envelope marked on the outside with “Last Will of PPE Masih”.  She found the envelope in the drawer of a dresser. Her grandmother told her it was “our wills”.  Edweana opened the envelope and there were some documents inside, which included a copy of the deceased’s will dated 20 January 1993.
27. [27]
    Edweana read the will and asked her grandmother why her brother was getting more that her in the will.  Her grandmother’s response was that it was because Edweana was a girl.  Edweana put the will back in the envelope and put it back in the dresser drawer. 
28. [28]
    The deceased, his wife and the applicant had also completed enduring powers of attorney dated 3 February 1994.  Edweana also saw the originals of these documents in 1994 when her grandmother gave her the documents and told her that she might die soon and, if anything were to happen, she was to get these papers out of the safe.  Edweana wrote “Power of attorney papers” on the envelope, before putting the envelope into a combination lock safe that was located on the floor of her grandparent’s walk-in wardrobe. 
29. [29]
    In 1994, Edweana was able to open this safe after she saw the combination to the safe in her grandmother’s address book.  Thereafter, both her grandmother and the deceased would often ask Edweana to fetch items from the safe or put items into the safe for them.  She never saw originals or copies of the wills of the deceased, her grandmother or the applicant when she had the safe open. 

A copy of the will is found after the deceased dies

30. [30]
    After the deceased died, Edweana went looking for the original of the will. She searched the house, paying particular attention to her grandparents’ walk-in wardrobe, where they had kept many documents.
31. [31]
    Edweana opened the safe in the bottom of the walk-in wardrobe to look for the deceased’s will, but found that the safe only held jewellery, passports, a coin collection, stamps in an envelope, and the original powers of attorney for the deceased, her grandmother and the applicant. These were the same original powers of attorney that Edweana had placed in the safe in in 1994.
32. [32]
    In the bottom of her grandparents’ walk-in wardrobe, Edweana also found a locked brown briefcase which she had never seen open before.  As she did not have a key for this briefcase, Edweana had to force it open.  Inside the briefcase were documents and items that were personal and precious to the deceased:

    1. (a)
       the envelope that Edweana had seen in 1994, with the writing “Last Will of PPE Masih” on it;
    2. (b)
       a copy of the adoption papers for Edweana and the respondent;
    3. (c)
       court papers from a civil claim where the deceased’s company had been the defendant;
    4. (d)
       life insurance papers;
    5. (e)
       a copy of a power of attorney from British Columbia;
    6. (f)
       personal correspondence, including correspondence from Edweana’s biological mother addressed to Edweana that was never given to her;
    7. (g)
       a card in an envelope date stamped 14 February 2011;
    8. (h)
       a photograph of the family home in Fiji;
    9. (i)
       keys; and
    10. (j)
        cartoon pornography.
33. [33]
    Inside the envelope with the writing “Last Will of PPE Masih” on it were the following documents:

    1. (a)
       a business card of a solicitor from Melville McGregor Lawyers;
    2. (b)
       a letter to the deceased, the deceased’s wife and the applicant on Melville McGregor Lawyers letterhead stating:

“Further to your attendance at our office on 20 January 1993, we enclose copies of the following:

1. Will of Prem Mani Masih
2. Will of Patricia Papamma Masih
3. Will of Edwin Premil Masih

We confirm we are holding the originals of these Wills in our securities section for safe keeping pending further instructions from you.”

3. (c)
   copies of the wills of the deceased, his wife and the applicant. 

The original will was placed in the safe custody of Melville McGregor Lawyers

34. [34]
    Ownit Conveyancing took over the practice of Melville McGregor Lawyers in 2008. No person who was employed by Melville McGregor Lawyers is now employed by Ownit Conveyancing.
35. [35]
    Ownit Conveyancing does not have the original will of the deceased. However, a safe custody card has been located headed “MASIH, MESSERS PM + EP + MRS PP”, which lists seven documents:

    1. (a)
       will of AP Masih dated 20 January 2013;
    2. (b)
       will of EP Masih dated 20 January 2013;
    3. (c)
       will of PM Masih dated 20 January 2013;
    4. (d)
       EPA – PM to PP;
    5. (e)
       EPA – EP to PM + PP;
    6. (f)
       EPA – PP to PM; and
    7. (g)
       lease – Shop 1 Jacaranda Av (kitchen) to file 19500 2/8/94.
36. [36]
    A pencil line has been drawn through the last entry for the lease.  A red line has been diagonally drawn through the card. 
37. [37]
    Mr Geoffrey Cameron, a solicitor employed with Ownit Conveyencing since November 2020, has provided an affidavit which states:

    1. (a)
       The deceased’s safe custody card forms part of a safe custody register operated by Melville McGregor Lawyers up to the year 2008, consisting of cards of the same size and format as the safe custody card, arranged alphabetically in a filing drawer (“the Melville McGregor register”).
    2. (b)
       From 2008 until the present, all safe custody documents held by Ownit Conveyancing, including those previously held by Melville McGregor Lawyers, have been recorded in an electronic register (“the electronic register”).
    3. (c)
       Some of the cards in the Melville McGregor register, including the deceased’s safe custody card, are marked with a diagonal line in red ink.
    4. (d)
       There are no documents recorded in the electronic register for the deceased or the applicant, or for other cards in the Melville McGregor register that are marked with a diagonal line in red ink.
    5. (e)
       A search of all documents now held in safe custody by Ownit Conveyancing, including those previously held by Melville McGregor Lawyers, and the office generally has located no original documents for the deceased or for other cards in the Melville McGregor register that are marked with a diagonal line in red ink.
    6. (f)
       The electronic register uses file notes to record the release of safe custody documents, including the date of release and the identity of the person to whom the documents were released.  Scanned copies of the safe custody documents and the identity documents produced to show the person’s entitlement to the document are retained electronically, and photocopies of the documents released and identity documents are retained in the physical safe custody packet.
    7. (g)
       There are no file notes in the electronic register recording the release of safe custody documents to the deceased or the applicant, or to other clients whose safe custody cards in the Melville McGregor register are marked with a diagonal line in red ink.
    8. (h)
       Ownit Conveyancing conducts its practice with the understanding that a diagonal line in red ink across a safe custody card in the Melville McGregor register means that the original documents listed on the card were released to the client or clients listed on the card by Melville McGregor Lawyers prior to that firm merging with Ownit Conveyancing in 2008. 
38. [38]
    Mr Cameron has been a solicitor for 13 years and has spent his entire career working in the field of wills and estates.  He is well aware of the usual practice of solicitors being charged with the safe custody of their clients’ documents.  However, since he has only been employed with Ownit Conveyancing for a relatively short time, he cannot give any direct evidence as to what happened to the deceased’s will between 1993 and 2008. 
39. [39]
    Mr Cameron gave evidence about the systems that were in place for the safe custody of clients’ documents at Ownit Conveyancing and about what he understands, from reviewing the documents, the practice for the safe custody of documents at Melville McGregor Lawyers was. 
40. [40]
    Mr Cameron has had an opportunity to look through the card system utilised by Melville McGregor Lawyers and, in his view, it does not come up to a standard that he, as a wills and estate practitioner, would expect.  Further, when reviewing the card system, he noticed that there did not seem to be a consistent practice followed in relation to record keeping in the safe custody register. In particular:

    1. (a)
       some cards have notations as to when the documents were returned and who the documents were given to; whereas
    2. (b)
       some cards just have a red line drawn diagonally through the card, which he has interpreted as meaning that the documents have been returned to the owner. 
41. [41]
    Mr Cameron states that, if a red line has been drawn through the card, then Ownit Conveyancing is no longer in possession of the documents referred to on the card. 
42. [42]
    Mr Cameron has recently looked at the safe custody packets held by Ownit Conveyancing.  He states that there are packets that have come from Melville McGregor that have a diagonal line drawn across them, similar to the red line utilised in the card system.  However, these packets still have documents in them.
43. [43]
    In response to cross-examination by counsel for the respondent, he expressed the view that the red lines drawn across the cards and the packets were done as part of an audit process: 

“So a person could have taken a card – the person doing the audit could have taken the card, looked for the packet, and if there was a packet, check the documents in it against that card, and if that matched, they’d put a red line through the packet?‑‑‑That’s correct, yes.

Right.  So, then, if that person doing an audit had a card, looked for a packet, and there wasn’t a packet, they’d put a red line through the card?‑‑‑Yes.”

44. [44]
    Mr Cameron did not know when audits were done at Melville McGregor Lawyers and, since he has been at Ownit Conveyancing, no audit has been done.
45. [45]
    In his view, it would be reasonable to do such an audit when one firm of solicitors takes over another firm’s safe custody records.  He agrees that it is likely the red lines were placed on the cards and packets as part of an audit when Ownit Conveyancing took over Melville McGregor’s safe custody. 
46. [46]
    Mr Cameron states that it is a general practice that original wills should only be provided to the client who made the will, or in accordance with the client’s instructions on a written authority.  Mr Cameron notes that there is nothing in the card system recording that a person has written authority to collect the deceased’s original will.  It would be the usual practice to put such an authority into a safe custody packet. 
47. [47]
    There is no physical packet at all for the deceased or for any of the Masih family at Ownit Conveyancing. 
48. [48]
    Mr Cameron acknowledges that, based on his review of the card system, there are several possibilities as to what could have happened to the deceased’s original will.

Applicant’s submissions

49. [49]
    The applicant submits that the evidence supports a finding of fact that the deceased was in possession of his original will. 
50. [50]
    The applicant submits that, despite the use of the word “seen” in Welch v Phillips,^[6] the presumption does not literally require that some person must have seen the will in the possession of the deceased.  Rather, it only requires that the deceased was the last known possessor of the will.  Such a proposition is uncontentious.
51. [51]
    There is no unequivocal evidence as to the identity of the person or persons to whom the original will was released from the safe custody of Melville McGregor Lawyers, nor as to the date upon which it was released.
52. [52]
    The applicant submits that, based on Mr Cameron’s evidence, it should be concluded that the will was released from safe custody before Ownit Conveyancing took over the practice of Melville McGregor Lawyers in 2008.  Further, the applicant submits that it should be inferred that it probably was released from safe custody in 1994 along with the other documents.
53. [53]
    The applicant submits that there is no direct evidence of the will having passed into the possession of the deceased.  However, the applicant submits that, for the following reasons, it should be inferred that the deceased was the person to whom his original will was released from the custody of Melville McGregor Lawyers:

    1. (a)
       The deceased was the only person with lawful authority to collect the original will.  There is no evidence that he gave any other person authorisation to collect his original will.
    2. (b)
       There is evidence that the deceased was a very “controlling” person.  On the basis of that evidence, it is unlikely that the deceased would have given any other person authorisation to collect such an important document as his original will.
    3. (c)
       The original wills and the original powers of attorney were all held in the safe custody of Melville McGregor Lawyers.  As the original powers of attorney were found to have been in the possession of the deceased, it is a logical inference that he also had the original wills.
    4. (d)
       The applicant gives evidence that he has never had possession of his own original will, even though it clearly was released from the solicitors’ safe custody.  It is a reasonable inference, given the “controlling” nature of the deceased, that the deceased collected all of the wills and powers of attorney from the solicitors’ safe custody.  It is unclear how he might have accomplished that, but the fact that he had possession of the original powers of attorney supports this inference.
54. [54]
    The applicant refers to passages from Jones v Dunkel as to how this Court should approach making inferences from the known facts of this case:

“…One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed…”^[7]

“… As has been said, “Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause you need only circumstances raising a more probable inference in favour of what is alleged…where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood” (citations omitted)…”^[8]

Discussion

55. [55]
    The standard of proof in relation to whether the original will can be traced into the possession of the deceased is on the balance of probabilities. The parties provided very detailed submissions as to whether the principle in Briginshaw v Briginshaw applies to this assessment.^[9]  The respondent submits that, in relation to whether the will can be traced into the deceased’s possession, the Court should evaluate the evidence with great care in accordance with the Briginshaw principle.  The applicant submits that the Briginshaw principle is not applicable.
56. [56]
    However, on the facts of this case, I do not need to determine this issue.  The respondent submits that, even accepting the applicant’s submission that the Briginshaw principle does not apply, there is insufficient evidence for the Court to be reasonably satisfied on the balance of probabilities of what has happened to the deceased’s original will.  I agree.
57. [57]
    After considering the evidence, I am not satisfied, on the balance of probabilities, that the deceased was in possession of his will after it was placed into the safe custody of Melville McGregor Lawyers.  There are too many unknowns in this case for me to be so satisfied.
58. [58]
    It is clear that the deceased’s original will was placed in the safe custody of Melville McGregor Lawyers upon the deceased signing his will on 20 January 1993.  Melville McGregor Lawyers merged with Ownit Conveyancing in 2008, and Ownit Conveyancing does not have the deceased’s will in their safe custody.
59. [59]
    It is impossible to determine when Melville McGregor Lawyers or Ownit Conveyancing ceased having safe custody of the original will.  Although, it is probable that, at the time of the merger in 2008, the original will was no longer in their safe custody.
60. [60]
    There is simply a dearth of evidence as to what happened to the deceased’s will after it left the safe custody of Melville McGregor Lawyers; whether it was lost or released to someone, and, if it was released, to whom. It is fair to say that the card system utilised by Melville McGregor Lawyers creates more questions than answers.  Mr Cameron had an opportunity to review the card system, and agreed with several propositions put to him by counsel for the respondent in relation to the whereabouts of the deceased’s original will:

“So it’s possible that the deceased’s original will, along with Patricia’s and the applicant Edwin’s original wills, were lost by Melville McGregor some time after they were placed into the safe custody packet, isn’t it?‑‑‑It – it can’t be ruled out.

Yes.  Okay.  You would agree, wouldn’t you, that the lack of any detail on that card of whether wills were taken out is neither indicative or not that they were taken out or not?  It’s just there’s nothing there?‑‑‑That’s correct.  There’s nothing to say one way or the other.

And, Mr Cameron, if I tell you that the original enduring powers of attorney, the three of them, were at some point taken out of safe custody from Melville McGregor, you would agree that that doesn’t necessarily mean that the wills were also taken out at the same time?‑‑‑That – that would be correct, yes.  There’s nothing on the card to say when each document was removed.

Or if they were removed?‑‑‑Or if they were removed.  That’s right.”

61. [61]
    I note that the applicant also left his original will with Melville McGregor Lawyers (now Ownit Conveyancing) and he has not seen it again. According to the card system, the applicant’s will is no longer in the possession of Ownit Conveyancing.  However, the applicant does not have possession of his original will and does not know where it is.  Someone other than the applicant should not have been able to remove his original will unless an authority was given to do so.  The applicant states that he did not provide such an authority. Nevertheless, his will is no longer in the firm’s possession.  To make any conclusion as to the what happened to the applicant’s original will would be speculation.  In my view, the same can be said with respect to the deceased’s original will.
62. [62]
    The original enduring powers of attorney were recorded in the card system as being in the safe custody of Melville McGregor Lawyers.  They are no longer in Ownit Conveyancing’s possession and have clearly been removed; by whom and when we do not know.  No such detail is recorded in the records. Edweana states that her grandmother gave her these documents in 1994.  Mr Cameron gave evidence that it is not possible to reason that, because the deceased’s original enduring power of attorney was removed, the original will was also removed at that time.
63. [63]
    Taking all the circumstances into account, I cannot be satisfied on the balance of probabilities that the deceased’s original will can be traced to him.  The deceased’s original will can be traced to Melville McGregor Lawyers.  To determine what happened after that would be entering the realm of speculation.  I am not satisfied that the deceased was in possession of the original will.  The presumption does not arise.
64. [64]
    Accordingly, the application is dismissed.
65. [65]
    In relation to costs, I propose to make an order that the costs of all parties be paid by the estate on the indemnity basis, as agreed or assessed.  If both parties agree to an order in these terms, then they should provide me with a draft order within seven days.  If any party seeks a different order, then they should provide written submissions within seven days.