Re Moore (deceased)[2025] QSC 213

SUPREME COURT OF QUEENSLAND

1. [1]
   On 3 March 2021, Jasmine Rose Moore (“the deceased”) died intestate and without a spouse.  She was survived by her two sons, Robert and Klaus.  By reason of the deceased having died intestate, her estate fell to be shared equally as between her two sons. On 26 August 2024, a solicitor, Mr Rouyanian (“the administrator”), was granted letters of administration on intestacy.  There are before the Court three applications arising out of and concerning the deceased’s estate. On 16 April 2025, the administrator applied for judicial advice or a direction to the effect that he be authorised to compromise a claim made by Robert for a declaration of a constructive trust in relation to part of the assets of the deceased’s estate.  The application for judicial advice or direction was made under s 96 of the Trusts Act 1973 (Qld) or s 6 of the Succession Act 1981 (Qld) (“the Act”).^[1] On 13 June 2025, Klaus filed an application seeking, inter alia, the revocation of the grant of letters of administration to the administrator and/or leave under s 49(2) of the Act to defend Robert’s foreshadowed claim.  On 23 June 2025, Robert filed an application seeking that his costs ordered to be payable by Klaus pursuant to paragraph 2 of an order of this Court dated 9 May 2025 be fixed in the sum of $8,672.50.

Disputed claims on an intestacy

2. [2]
   The deceased’s estate is said by Robert to comprise a house and land at 19 Bounty Drive, Caboolture South (“the Bounty Drive property”), cash in an approximate amount of $8,000 and furniture valued at approximately $1,000.  An independent valuer has opined that the Bounty Drive property is worth $1,360,000.   
3. [3]
   Robert’s proposed claim upon the estate may be outlined as follows.  On 9 October 2000, using his own funds, he purchased the land at Bounty Drive in an unimproved state for $117,000.  Between October 2000 and June 2003, the deceased represented to Robert that if he transferred the land at Bounty Drive to the deceased, she would build a house on the land in which the deceased and Robert could live and she would then leave the Bounty Drive property to him when she died. Relying on those representations, in or about August 2003, Robert transferred the land at Bounty Drive to the deceased for “natural love and affection” and paid the legal costs of and incidental to the transfer, including the stamp duty. In or about 2007, the deceased paid for a relocatable home to be delivered to and erected on the land at Bounty Drive.  Relying further on the representations, Robert over time paid amounts totalling approximately $67,000 for Council inspections, the maintenance of and improvements and repairs to the Bounty Drive property. 
4. [4]
   Following the deceased’s death, on 17 May 2021, Robert consulted Mr Duell, a solicitor employed by a law firm of which the administrator was a partner.  A file note of that consultation is headed “Estate of your late Mother”.  The file note relevantly refers to Robert’s instructions that he “told his mother that he would transfer [the land at Bounty Drive] to her for nothing and if she wished she could build a house on it”.  The file note outlines Robert’s instructions that the deceased had refused to build a house and had preferred to relocate a house to the land at Bounty Drive. The deceased had eventually identified a suitable house to be relocated and had purchased the house for a sum of $85,000 and then had it removed to the land at Bounty Drive.  The land at Bounty Drive was stumped at a cost of $43,500, which figure was included in the amount of $85,000. 
5. [5]
   Towards the end of the file note the following appears:

“[Robert] said that [the deceased] didn’t have much by way of assets, only a small bank account with Westpac containing about $5,000.00 and there was money in the house of [the deceased] amounting to $3,000.00.  I told him to pay it into our trust account, as if he did this [Klaus] would not have any come back on him.  I asked him if he had any details of the house purchase and he told me there was a lot of paperwork in [the deceased’s room] that he knew nothing about.  I told him that immediately he got home he should go into [the deceased’s room] and to locate anything he thought was of use to us in this matter.  He said he would do that.”

6. [6]
   The file note concludes with the following passage:

“I told [Robert] I would write a letter to [Klaus] informing him that we had been instructed by [Robert] to apply for Letters of Administration with him as the Sole Administrator and point out that the estate was very small, and I would have to wait to see what that letter drew from [Klaus]. I told him that if I or he did not hear anything by the end of this month I would proceed and commence to administer the estate.”

7. [7]
   It may be noted that the suggestion that the deceased’s estate was “very small” was, taken literally, not an accurate statement. The file note does not make any express reference to Robert’s instructions being that the deceased had promised him that she would leave the Bounty Drive property to him in her will. Implicitly, the suggestion that the estate was “very small” seems to have been premised on the Bounty Road property not forming part of the deceased’s estate. The real issue raised by Robert’s instructions to Mr Duell appears to have concerned whether a substantial asset, the legal title of which was in the name of the deceased, was impressed with a constructive trust in favour of Robert and, if so, to what extent. 
8. [8]
   On 6 July 2021, the law firm acting on behalf of Robert filed an application for a grant of letters of administration on intestacy.  The application was supported by an affidavit sworn by Robert.  On 29 June 2021, Klaus filed a caveat against the grant. Klaus claimed an interest of 50% in the deceased’s estate in accordance with the rules of intestacy.
9. [9]
   On 4 May 2022, Mr Duell, acting on behalf of Robert, instructed a valuer to prepare a valuation of the Bounty Drive property.  In his letter of instructions to the valuer, Mr Duell noted that the land at Bounty Drive had been originally transferred to the deceased and referred to the deceased having agreed with Robert to the effect that the Bounty Drive property would be transferred to Robert upon her death.
10. [10]
    Mr Duell later died and the administrator, on behalf of Robert, took over the conduct of Robert’s application for a grant.
11. [11]
    On 5 August 2024, Robert filed a further affidavit in support of his application for a grant which was witnessed by the administrator (“Robert’s 5 August 2024 affidavit”). That affidavit materially deposed to the following matters:

    1. At the time of the deceased’s death her assets comprised the Bounty Drive property, a Westpac bank account containing approximately $5,000, cash in the house amounting to $3,000 and furniture valued at $1,000;
    2. From in or about 1987 until in or about 1994 or 1995, Robert had lived with the deceased at a rental property at Woody Point, which property had no running water, no toilet, a leaking roof and other defects;
    3. Robert purchased the land at Bounty Drive as a vacant block under a contract of sale dated 9 October 2000, which he exhibited (“the Land Contract”);
    4. Robert had suggested to the deceased that he transfer the land at Bounty Drive to the deceased and she could build a house on the land;
    5. Robert wanted the deceased to be able to live in habitable premises and his suggestion was made “strictly on the understanding that after [the deceased] passed away that property would be transferred back to me”;
    6. In 2003, the deceased agreed to Robert’s suggestion;
    7. Robert then consulted a solicitor, Mr David Colwell, of the firm of solicitors, David Colwell and Company, to arrange for the transfer of the land at Bounty Drive to the deceased;
    8. Robert paid for the legals costs of the transfer including the stamp duty totalling some $4,225;
    9. After the registration of the transfer, the deceased rejected the notion that she should build a house and informed Robert that she intended to purchase a relocatable house and have it moved to the land at Bounty Drive; 
    10. Over a period of some three years, the deceased and Robert searched for an acceptable relocatable house; 
    11. In 2007, the deceased found an acceptable relocatable house which she purchased and had moved to the land at Bounty Drive;
    12. The total cost of purchase of that house was $85,000 comprised of the cost of the house ($41,500), removal costs ($32,000) and restumping ($11,500);
    13. The contract of sale of the relocatable house (“the House Contract”) was in Robert’s name as purchaser by mistake; 
    14. All of the funds for the purchase of the relocatable house were provided by the deceased from her own monies;
    15. Thereafter, Robert paid for various improvements, maintenance and repairs and statutory costs in respect of the Bounty Drive property. 
12. [12]
    Robert’s 5 August 2024 affidavit contained an acknowledgement that “after the payment of all debts of the estate the balance of the estate will be divided equally between my brother Klaus and myself”. The affidavit also concluded with this paragraph:

“For the reasons alleged herein I claim that the [Bounty Drive property] is either subject to a debt to me in the sum of $187,554.36 or held by my mother on trust for she and I in the proportions we contributed to the property - $187,554.36 by me and $85,000.00 by my mother, and that my mother’s share forms part of her residuary estate.”

13. [13]
    On 26 August 2024, orders were made setting aside Klaus’ caveat and granting letters of administration on intestacy in respect of the deceased’s estate to the administrator. At the time of those orders, Klaus was self-represented and Robert was represented by the administrator and counsel instructed by the administrator.  The precise circumstances in which the 26 August orders came to be made are not entirely clear and I am not able to make findings about those circumstances. On these present applications, various affidavits from the administrator, Robert and Klaus were read but there was no cross examination. It would appear to be accepted by the administrator that, at the time of the 26 August orders, the position of conflict in which the administrator found himself was not disclosed to the Court.^[2] That the administrator was in a position of conflict may have been apparent from the application before the Court on 26 August 2024, but the nature and extent of the conflict dating back to Robert’s initial consultation with, and instructions provided to, Mr Duell, may not have been apparent and does not appear to have been explained. The administrator deposed to having had a discussion with Klaus prior to the 26 August orders being made and having “formed the view that it was more appropriate for a neutral person to be appointed as administrator”.  The administrator was not a “neutral” person in the sense that at the time he was in a clear position of conflict. The administrator deposed to having discussed his “view” with Robert and Klaus and having offered to perform the role of administrator “on the understanding that they each would need to engage legal representatives if, in the case of [Robert] he wished to prosecute a claim against the estate, and in the case of [Klaus] so that he could understand the nature of [Robert’s] claim and advance any claim he may wish to bring”.  Klaus has deposed that he was not informed that “I had to obtain legal representation in order to communicate with the administrator”. The 26 August orders are not described in terms as consent orders and the extent of Klaus’ objection, if any, to those orders is not able to be resolved on these applications. 
14. [14]
    Following the orders dated 26 August 2024, Robert engaged new solicitors and counsel but Klaus remained self-represented.  The administrator retained counsel to act on his behalf, the same counsel who had, until this point in time, been briefed by the administrator to act on behalf of Robert. 
15. [15]
    On 26 November 2024, Robert’s new solicitors sent to the administrator a draft statement of claim settled by Robert’s new counsel. The draft statement of claim was provided under cover of a letter which proposed a mediation with a view to resolving Robert’s claim without litigation. By his affidavit filed 6 May 2025 (“Robert’s 6 May 2025 affidavit”), Robert deposed that by sending the draft pleading and proposing a mediation he was seeking “to avoid the expense of commencing legal proceedings to enforce [the deceased’s] promise”.
16. [16]
    The draft pleading alleged a proprietary estoppel arising from oral representations made to Robert by the deceased between October 2000 and June 2003 to the effect that if he transferred the land at Bounty Drive to the deceased, she would erect a house on the land for her and Robert’s occupation and would by her will leave the Bounty Drive property to Robert.  The draft pleading alleged that it would be unconscionable for the administrator to deny that Robert is “entitled to the Bounty Drive property”.  In the alternative, the draft pleading alleged a joint endeavour between Robert and the deceased to establish a home for themselves “with the deceased on her death to leave that property to [Robert] by her Will”.  The draft pleading sought a declaration that the administrator holds the Bounty Drive property on constructive trust for Robert and an order that the administrator transfer the Bounty Drive property to Robert. Alternatively, by reason of the failed joint endeavour, the draft pleading sought an order that the administrator pay to Robert from the deceased’s estate $1,391,885.74 in reimbursement of Robert’s contributions to the joint endeavour, which figure reflected a calculation comprising the current value of the Bounty Drive property less the added value of the relocatable house, assessed at $40,000.
17. [17]
    The administrator has deposed that after “investigating” the draft statement of claim and consulting with Klaus he delivered a draft defence containing only non-admissions of the facts alleged in the draft statement of claim. It may be observed that that whatever consultation occurred with Klaus, took place in a context in which Klaus had not retained lawyers and the administrator had previously expressed his “view” to Klaus that Klaus would need to retain legal representation “so that he could understand the nature of Robert’s claim”. 
18. [18]
    An unsuccessful mediation took place on 14 April 2025.  The mediation was attended by Robert’s counsel and solicitors, the administrator and his counsel and Klaus. 
19. [19]
    The administrator has agreed in principle with Robert, subject to the administrator’s application for advice or direction, to compromise Robert’s claim and administer the deceased’s estate essentially on the following basis:

    1. The administrator will transfer the Bounty Drive property to Robert;
    2. Robert will pay to the deceased’s estate $37,000;
    3. The remainder of the deceased’s estate (that is, what remains after excluding the Bounty Drive property) will be distributed to Klaus.
20. [20]
    The proposed compromise as between Robert and the administrator is sought to be propounded against the background of these circumstances:

    1. Robert has deposed that he no longer has any records of his bank statements evidencing the payment of his monies towards the purchase price described by the Land Contract. 
    2. There is no evidence that Robert has made any inquiries of his bank to obtain any copy, or record, of his material bank statements.
    3. Robert has exhibited a registration confirmation statement which evidences that he became the owner in fee simple of the land at Bounty Drive on 1 November 2000. 
    4. A firm of solicitors, Paul Everingham & Co, acted on Robert’s behalf in relation to the registration of the transfer instrument.
    5. Robert and the administrator have apparently made no inquiries of that firm of solicitors to obtain the firm’s file concerning the Land Contract or any evidence that Robert was the source of, or provided, the monies for the purchase price described by the Land Contract.
    6. The representations made by the deceased to Robert are alleged to have been made orally over a period of time which is identified in the most general, unparticularised terms. 
    7. The evidence does not include any contemporaneous record or note of the representations.
    8. The deceased died 18 years after the alleged representation, intestate, without having apparently ever made a will reflecting the representations or consistent with the representations having been made.
    9. There is no evidence as to whether the deceased ever took any steps towards preparing a will.
    10. Robert’s affidavits do not describe any efforts by him between 2003 and 3 March 2021, the deceased’s date of death, to ensure that the deceased honoured her promise to him by preparing a will which left the Bounty Drive property to Robert.
    11. The transfer document for the dealing by which Robert transferred the land at Bounty Drive to the deceased refers to the consideration as being “natural love and affection borne by the transferor to the transferee” and identifies the interest, the subject of the transfer as the “fee simple”. 
    12. A solicitor, Mr David Colwell, was involved with this dealing and is noted on the transfer document as having acted as the solicitor on behalf of the deceased. 
    13. Mr Colwell’s firm sent a memorandum of costs and outlays to Robert in respect of this dealing. 
    14. Robert and the administrator have apparently made no inquiries of Mr Colwell or his firm to obtain the firm’s file concerning the transfer to the deceased, any evidence of the terms on which the transfer occurred or any record evidencing or referencing the alleged representations.
    15. Since his appointment, the administrator has not entered or apparently taken control of the Bounty Drive property or any other property of the deceased’s estate. 
    16. In particular, the administrator has not deposed to whether he has taken control of and reviewed the deceased’s personal documents and whether he has made any efforts to gather in and consider the documents described as “a lot of paperwork” in the deceased’s room, as referred to by Robert in his initial consultation with Mr Duell.   
    17. The administrator has apparently relied upon Robert’s various affidavits for the purpose of satisfying himself as to the assets of the estate and that the deceased died without a will.
    18. Since the appointment of the administrator, Robert has continued to live at the Bounty Drive property and it has been necessary for Klaus to contact Robert to gain access to the property.
    19. Robert’s claim to remedies has changed markedly from the claim described in his 5 August 2024 affidavit, at a time when the administrator was his solicitor, being  a claim that the Bounty Drive property was either subject to a debt to him in the sum of $187,554.36 or held by the deceased on trust for the deceased and Robert in the proportions contributed to the property ($187,554.36 by Robert and $85,000 by the deceased). Robert’s draft pleading now claims that the administrator holds the entirety of the Bounty Drive property on constructive trust for Robert and that the administrator should be ordered to transfer the Bounty Drive property to Robert.
    20. There is no evidence that the administrator has obtained advice from counsel as to the prospects of defending Robert’s claims or as to whether any constructive trust is likely to be on different terms to the constructive trust presently asserted by Robert’s draft pleading.
    21. In terms of the administrator’s contention that he has “investigated” Robert’s claim, the administrator has deposed that those investigations involved him considering the “objective facts” and inviting Klaus to set out whether he had any factual basis to resist or contradict the claim but in circumstances where Klaus remained self-represented and the administrator had previously expressed his “view” to Klaus that Klaus would need to retain legal representation “so that he could understand the nature of Robert’s claim”. 
    22. The administrator’s decision to compromise Robert’s claim has been made on the basis that he has “no basis to deny [Robert’s] claims which appeared to me to be supported by the objective facts” and “there were no funds in the estate to resist the claim nor [has Klaus offered] to fund any such defence and otherwise indemnify me as administrator in respect of any adverse costs order”.

The administrator’s application

21. [21]
    The power of this Court to give judicial advice to a trustee is inherently discretionary and “there are no express words … and no implications … making some discretionary factors … more significant or controlling than others”.^[3]  Every application depends on its own facts^[4] and ultimately the court is concerned with determining what ought to be done in the best interests of the trust.^[5] The discretion of the court to give advice “should not be yoked to a general first principle that, where there is a contest or where there are adversaries it is not appropriate to give advice”.^[6]
22. [22]
    In Hopkins v Edwards,^[7]  in the context of considering an application by a trustee for judicial advice as to whether a trustee was justified to institute or defend legal proceedings, Lyons J relevantly observed:

“To make such a justification order, the Court has to determine whether the proceeding or defence is justifiable: ie that there is sufficient prospects of success or that it will not be fruitless based on the material provided by the trustee.  This usually involves establishing that:

1. the trustee has taken proper legal advice and that a reasonable trustee might well abide by that advice; and
2. the trustee’s advice that it is more likely than not that it will be successful in the litigation and that in pursuing the litigation the trustee will be acting in the best interests of the trust, having regard to the likely costs of the proceeding and whether they are proportionate to the issues and the significance of the case.”

23. [23]
    Obtaining judicial advice in the context of the contemplated prosecution or defence of legal proceedings resolves doubt about whether “it is proper” for the trustee to incur the costs and expenses of prosecuting or defending the litigation.^[8] The propriety of the proposed course of conduct falls to be considered. The matters relevant to the propriety of any course of action should not be exhaustively stated. In any particular case, the matters may include the circumstances of the trust and the resources available to the trustee, the steps taken by a trustee to understand and consider the issues in dispute, whether an assessment of the prospects of a claim or defence is able to be made and the substance of any assessment of prospects. A particular matter which has been recognised as relevant to the propriety of a proposed course of action by a trustee is whether the trustee has made “all reasonable inquiries … to establish the true facts”.^[9]
24. [24]
    In the present case, I am not satisfied that it would be proper for a reasonable trustee in the present situation of the administrator to compromise Robert’s claims on the estate in the manner proposed by the administrator. The critical alleged fact underpinning Robert’s claims, the oral representation by the deceased that she would leave the Bounty Drive property to Robert in her will, is not evidenced by writing and the circumstances in which the oral representation is alleged to have been made do not appear to have been adequately or reasonably investigated, if they have been investigated at all.  The administrator does not appear to have taken advice from counsel. I am not satisfied that the administrator has made reasonable and proper inquiries to enable him to form any confident or informed view as to the likely prospects of defending Robert’s claims, in whole or in part, including the suitability of the form of remedy sought by Robert.  Notably:

    1. The administrator appears to have accepted at face value, Robert’s assertion that he no longer has bank statements (and implicitly that any bank statements or records are unable to now be obtained by Robert from his bank), such statements being relevant to establishing the contention that Robert paid for the land at Bounty Drive out of his own funds.
    2. No inquiries appear to have been made of Paul Everingham & Co, Mr Colwell or Mr Colwell’s firm in relation to the Land Contract or the circumstances surrounding the transfer from Robert to the deceased.
    3. It does not appear that the administrator has collected and conducted any review of the deceased’s personal documents and records;
    4. The administrator does not appear to have requested funding from Robert and Klaus to enable him to conduct reasonable inquiries in relation to Robert’s claim.
25. [25]
    Having regard to the material before the Court, in the exercise of my discretion, I have decided that it would be inappropriate for this Court to provide the judicial advice or direction sought by the administrator.

Klaus’ application

26. [26]
    The court has an inherent jurisdiction to revoke a grant, as well as a statutory power conferred by s 6(1) of the Act.  The jurisdiction, both statutory and inherent, is a supervisory and protective one.^[10] The exercise of the jurisdiction is informed by “the due and proper administration of the estate and the interests of the parties beneficially entitled thereto”.^[11] Appellate court authority has recognised that where circumstances have arisen which impel a court to a firm conclusion that the due and proper administration of an estate would be put in jeopardy if a particular person were executor or trustee, the court can properly exercise its jurisdiction to remove that person as either.^[12]  
27. [27]
    In the present case, no party sought to draw any relevant distinction between the approach to a revocation of a grant of probate and the revocation of the grant of letters of administration on an intestacy. In a leading decision of Bates v Messner,^[13] Asprey JA relevantly observed in the context of the revocation of a grant of probate:

“…the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto …  The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as ‘abortive’, ‘inefficient’, ‘useless’ or ‘ineffectual’, are simply descriptive of a situation which the court has been persuaded to the view that its grant … has been circumvented ….

I shall make no attempt to define all circumstances which may attract the exercise of the court’s jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of others matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.”

28. [28]
    Some decades later in Mavrideros v Mack,^[14] Sheller JA, with whom Priestley and Beazley JJA agreed, considered that it was relevant to enquire whether:

“… the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.”

29. [29]
    It has been observed that an application to revoke a grant represents the most extreme reaction to a failure to perform representative duties.^[15] That observation is consistent with the language in some of the previously decided cases as referred to by Asprey JA in Bates.  However, as Asprey JA made clear, that type of language is not definitive of, and should not be construed as defining, all circumstances which may attract the exercise of the court’s jurisdiction to revoke a grant. In an appropriate case, neglect by an administrator may support an application for removal.^[16] In the present case, at the time the application for removal was filed, the administrator had been appointed for less than twelve months. He was appointed from a position of conflict and, since his appointment, he appears to have adopted a somewhat passive approach to getting in and investigating the assets and affairs of the deceased’s estate. The administrator does not appear to have taken clear steps to distance himself from his position of conflict and to objectively demonstrate his independence. There are however steps still available to him to demonstrate in an objective way his independence and faithful discharge of his duties. I am not persuaded that the present circumstances, warrant an order for removal. The administrator should however be under no misapprehension that his future acts of administration need to be demonstrably independent, reasonable and taken after proper investigation of the records and affairs of the deceased’s estate. If he seeks a barrister’s opinion, he would be wise, for his own protection, to brief a barrister who is not burdened by any conflict.
30. [30]
    As to Klaus’ application under s 49(2) of the Act, leave under that section is granted only in “special” or “exceptional” circumstances.^[17]  It is not sufficient to obtain leave merely to have established that the legal personal representative has declined to defend a proceeding affecting an estate.  Rather, it must be shown that any proposed defence would be meritorious in the sense of raising serious questions to be tried.
31. [31]
    In Canberra Babington Pty Ltd,^[18] in a context where a beneficiary was seeking leave to prosecute a claim on behalf of a trust, Emmett AJA relevantly observed:

“However, before the Davis Descendants are entitled to the grant of relief sought in the interlocutory Process, they must establish not only that Perpetual is unable or unwilling to bring the action contemplated by the Amended Pleadings, in special or exceptional circumstances, but also that that the proposed action is ‘meritorious’. That requires at least that there is a serious question to be tried as to the claims that the Davis Descendants wish to have ventilated. In particular, the ‘meritorious’ requirement would not be satisfied if there were defences available that are bound to succeed. Clearly, it is not necessary to establish that the proposed claims will succeed. However, the Davis Descendants must establish that the Amended Pleadings disclose good causes of action and that there is material capable of supporting the claims alleged in the Amended Pleadings.

In a sense, the two requirements of special or exceptional circumstances and a ‘meritorious’ claim are interconnected. Special or exceptional circumstances to prosecute a derivative action will not be established unless a case of sufficient strength or prospects of success has been demonstrated. If the Court concluded that the claims were not ‘meritorious’, the requirement for special or exceptional circumstances could not be met. On the other hand, if the proposed claims were found to be particularly strong, the hurdle for reaching the conclusion that special or exceptional circumstances exist would be relatively low.”

32. [32]
    As will be apparent from my observations in relation to the administrator’s application, on the material presently before the Court it is simply not possible to form a view that special or exceptional circumstances exist.  The material rather demonstrates that Robert’s claim is yet to be properly investigated and, as matters presently stand, raises as many questions as it purports to answer.  Until further investigations are made or conducted it is not possible to form a concluded view as to whether there is a meritorious defence to the claim.  It is simply too early to tell.  I am not satisfied that Klaus has established special exceptional circumstances warranting a grant of leave under s 49(2) of the Act.

Robert’s application for assessment of his costs as previously ordered

33. [33]
    By an order dated 9 May 2025, this Court ordered that Klaus pay Robert’s costs thrown away by an adjournment. The costs order was for standard costs.
34. [34]
    Under r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld), this Court may fix an amount of costs.  Robert’s solicitor has deposed that the costs thrown away by the adjournment total $8,672.50 (being solicitors’ professional fees of $1,522.50 including GST and counsel’s fees of $7,150 including GST).  On 4 June 2025, a letter was sent to Klaus requesting payment of those costs and informing him that if he did not pay them a formal costs assessment was required and that such an assessment could cost as much as $15,000 to $20,000.  No response was received to that letter. 
35. [35]
    The purpose of making an order fixing costs has been recognised as being to save the parties the time, trouble, delay, expense and aggravation arising out of the taxation of costs.  The power may be exercised when a court considers it can fix an amount fairly on the basis of sufficient evidence so as to arrive at an appropriate sum.  The court needs to be astute to not overestimating the costs.  The power has been recognised as suitable to exercise in both complex and simple cases.^[19]
36. [36]
    In the present case, it is appropriate to make an order under r 687(2)(c).  Having regard to the affidavit material, I am in a position to fix an amount fairly on the basis of sufficient evidence to arrive at an appropriate sum.  There was no serious submission made by Klaus in opposition to the order.  The costs order being for standard costs did not contemplate a complete indemnity. There should be some discount to the solicitors’ professional fees to reflect the costs that might be recovered as standard costs. I have discounted the solicitors’ professional fees to $1000 inclusive of GST. Accordingly, I am prepared to fix the amount of the costs the subject of paragraph 2 of the order dated 9 May 2025 as totalling $8,150 including GST.

Orders

1. The application filed 16 April 2025 is dismissed.
2. The application filed 13 June 2025 is dismissed.
3. The costs of Robert Feyrer payable by Klaus Micro Bjelan pursuant to paragraph 2 of the order dated 9 May 2025 be fixed in the sum of $8,150 including GST.
4. I will hear the parties as to costs.