Dore v Cairns (No 2)[2022] QSC 278

SUPREME COURT OF QUEENSLAND

1. [1]
   In this matter, the applicant, Mr Dore, who is one of two co-executors appointed to administer the estate of the late Sandra Marie Hatton, applied to the court for an order, firstly, removing both him and his co-executor, Mr Cairns; and, secondly, for the appointment instead of an independent administrator, a solicitor named Mr Wiedman, who has agreed to accept the appointment.  I outlined the circumstances leading to the making of this application in my reasons published on 2 November 2022, see Dore v Cairns [2022] QCS 238.
2. [2]
   As is explained in those reasons, the deceased died over seven years ago; probate was granted after a protracted process on 11 October 2017; and over five years later, the estate remains unadministered. 
3. [3]
   There had clearly been a significant breakdown in communication between the two co-executors, such that I was persuaded it was appropriate to remove them as executors.  The question was who should be appointed to administer the will. 
4. [4]
   As also explained in the reasons, under the will, there was an alternate executor named, who is Mr Geoffrey Charles Hope.  Because of that and because the authorities do emphasise the importance, notwithstanding that the court’s jurisdiction is a supervisory and protective one in this context, of giving effect where possible to the testator’s intention, I did not make final orders in relation to the application on 2 November 2022.  Instead, I made directions, in the first instance, requiring Mr Cairns to provide the contact details for Mr Hope if he had them and then making directions about the filing of further affidavit material and submissions in relation to whether Mr Hope may appropriately be appointed as alternate executor and, lastly, in relation to costs. 
5. [5]
   The last order made on that date was that the application is listed for final hearing before me at 10 am on 5 December 2022.  Almost immediately following the delivery of that decision, an email was received on 3 November 2022 from Mr Hope saying:

“I, Geoffrey Charles Hope of [address provided], state that I am willing to act as sole executor in the above matter.” (See exhibit 2).

6. [6]
   I infer that, plainly, Mr Cairns had the contact details for Mr Hope and provided him with a copy of the judgment as soon as it had been delivered.  There is no other available inference as to how Mr Hope could have got in contact with my Associate on that day and in those terms.
7. [7]
   That is relevant because the applicant, Mr Dore, and his solicitors, had been having a great deal of difficulty getting contact details for various beneficiaries from Mr Cairns prior to the hearing before me, including Mr Hope. 
8. [8]
   That was followed, on 4 November, by an email from Mr Cairns to my Associate, which said that Mr Cairns had no objections and agreed that Mr Hope, in keeping with Sandra’s will, should be appointed as sole executor of her estate.  My Associate responded to that email, copying in Mr Hope and the applicant’s legal representatives, Ms Boddice (his solicitor) and Ms Rae (his counsel), to provide a copy of the email from Mr Cairns, and she also said:

“Please ensure that all parties to the proceeding are included in any correspondence sent to the Court.” (See exhibit 3).

9. [9]
   On 7 November 2022, Mr Cairns sent a further email to my Associate, and he copied it to Mr Hope at his email address and to an email address “[email protected]”.  In this email, Mr Cairns again expresses his support for the appointment of Mr Hope for various reasons outlined in that email, including – which is a matter of fact – that Mr Hope was named as the alternate executor; but also alluding to various other matters regarding whether or not the appointment of the applicant, Mr Dore, was something done of the deceased’s free will.  I do not proceed on the basis of accepting any of those matters as matters of fact.  The email also states that Mr Hope is a justice of the peace.  (See exhibit 4).
10. [10]
    As it turns out, that email was not, in fact, provided to the applicant’s legal representatives, but I infer that that was because of a typographical error in the email address for Ms Boddice, not a deliberate failure to do that.  [As it transpires, Counsel for the applicant informed the Court that the email was received by Ms Boddice a few days later, after the difficulty with the email address was discovered.]
11. [11]
    The matter remained listed.  Material was filed by the applicant, namely, an affidavit of Mr Dore was filed on 21 November 2022 and further submissions filed on 28 November 2022.  The affidavit of Ms Boddice, which has been filed by leave today, proves that both of those documents have been served on Mr Cairns and on Mr Hope.  Mr Cairns has not responded to confirm receipt of any of them, but they have been sent to the email address that he has been sending emails from, so it is reasonable to infer he did receive them.  Mr Hope did confirm, via an email to Cornford-Scott Lawyers on 28 November 2022, that he had received “email of documents”.  Given the date and that that is the date on which the submissions were sent, I infer that he was referring to receipt of the submissions.  However, again, since the affidavit was also sent to the same email address for Mr Hope, it is reasonable to infer that he received that document as well.
12. [12]
    In addition, the applicant’s lawyer sent a letter to Mr Hope by email on 14 November 2022, serving him with all of the previously filed material and asking that he please outline what his experience is and how he proposes to administer the estate and whether he intends to engage legal representation. 
13. [13]
    The evidence is that Mr Hope did not respond to that letter at all. 
14. [14]
    On Thursday, 1 December 2022, my Associate emailed Ms Rae, Ms Boddice, Mr Hope and Mr Cairns to advise that due to another matter listed in Court today, I needed to list this matter earlier on Monday morning and asked if they would all advise whether 9.15am was suitable to the parties.  All advised that it was suitable (see exhibit 1):  Mr Hope responded “ok”; Mr Cairns responded “yes, 9.15 is acceptable” and the applicant’s lawyers are here. 
15. [15]
    There is no appearance by either Mr Cairns or Mr Hope today; and there has been no request for leave to appear by telephone.
16. [16]
    The applicant submits it is appropriate for the Court to proceed to determine the application, notwithstanding the failure of Mr Cairns and Mr Hope to appear today. 
17. [17]
    I am satisfied that that is an appropriate course, in circumstances where Mr Cairns and Mr Hope have had ample knowledge that the matter would be finally heard today.  In so far as there was a change in the start time, that was clearly communicated to the parties on Thursday last week, and they all indicated that it was suitable.  There has been no material filed.  The only material that the Court has are the emails that have been sent by Mr Cairns and the one line email from Mr Hope indicating his willingness to accept an appointment.  There is no reason not to proceed with this matter in the circumstances where those two parties had knowledge of the matter and there is no explanation for their failure to appear, or for that matter to have filed any material prior to today. 
18. [18]
    So the question remains, who is the appropriate person to appoint in place of Mr Dore and Mr Cairns.  Is it the alternate executor named in the will, Mr Hope, or is it an independent administrator?
19. [19]
    For the following reasons, I am satisfied it is appropriate to appoint an independent administrator, Mr Wiedman.  He remains willing to accept the appointment.  I do that in circumstances where, as the authorities set out in my decision given on 2 November 2022 make plain, the Court’s jurisdiction in a matter such as this is supervisory and protective.  And whilst it is appropriate and necessary for the Court to have regard to the testator’s wishes, in the end, the Court must proceed on the basis of what is in the best interests of the due and proper administration of the estate. 
20. [20]
    The circumstances of this matter give me no confidence that Mr Hope will efficiently, properly, and independently administer this estate.  The estate is, as explained in the reasons, a small one.  It has already been beset by most unfortunate delays, which inevitably will have depleted the estate in terms of legal costs. 
21. [21]
    The will is somewhat complicated.  There is clearly a personal relationship, it seems to me, between Mr Cairns and Mr Hope.  I say that because Mr Cairns was refusing to provide contact details for people including Mr Hope when he plainly had them, as I have already mentioned.  And the factors set out in Mr Cairns’ email, which is  exhibit 4, raise questions about the circumstances surrounding this will and the relationship between all of these people. 
22. [22]
    I do not draw any adverse inference against Mr Hope whatsoever as a person.  I do not have any material before me in that respect.  However, objectively, if somebody was to come forward to be appointed as an alternate executor, the Court would expect something to have been put before the Court to demonstrate that that is a suitable course; and merely Mr Hope’s willingness as articulated in exhibit 2 is insufficient for that purpose. 
23. [23]
    The failure to appear in Court today reinforces that conclusion. 
24. [24]
    Even the fact that there has been an inability to follow the instruction of my Associate to ensure everybody is included in any communication to the Court, gives some cause for concern.  I refer, in that regard, to exhibit 1 from Mr Hope. 
25. [25]
    There is also the question of the deceased’s house, which on the evidence before the Court, Mr Cairns has been living in.  I accept the submission that an independent administrator is likely to be better placed, in the interests of all the beneficiaries, to take the necessary steps to deal with the deceased’s assets as best he possibly can, consistently with the complicated will, rather than leaving that to chance, which is where I feel the Court is left, with no material from Mr Hope.  Everything points to it being in the best interests of the beneficiaries and the due administration of the estate that an objective independent administrator be called in to try to sort this out as quickly and efficiently as possible. 
26. [26]
    Of course, there will be a cost associated with that, but the likelihood of Mr Hope having been able to resolve all of this without resort to legal advice is negligible.  So there would be legal costs involved, in any event. 
27. [27]
    For completeness, I note that I have read the affidavit of Mr Dore, which attaches to it two earlier affidavits from Mr Hope.  I do not accept the submission that Mr Hope was articulating anything inconsistent as between those two affidavits.  What is clear from those affidavits is that the deceased’s intention was not to leave her house to Mr Cairns personally, but that the purpose of it being dealt with in the way in which it was under her will was that the proceeds could be used for the church ministry work that is undertaken. 
28. [28]
    For those reasons, I am satisfied it is appropriate, in the exercise of this Court’s supervisory and protective jurisdiction, to make orders for the removal of Mr Dore and Mr Cairns as executors of this estate and for the appointment instead of Mr Jon Frederik Wiedman. 
29. [29]
    In relation to the costs of the proceedings, although the applicant sought an order that Mr Cairns pay those costs, notwithstanding the factual circumstances outlined in the earlier reasons I was not ultimately persuaded to that course.  The order for costs will be that the costs of the application be paid by the estate.
30. [30]
    I request that the solicitor for the applicant provide an appropriate form of order, reflecting those orders and any necessary consequential orders, which I will then sign and make from chambers.