Re Estate of the Late Gerhard Anthony Haberl (also known as Gary Anthony Haberl) [2022] NSWSC 704

Supreme Court New South Wales

Medium Neutral Citation: Re Estate of the Late Gerhard Anthony Haberl (also known as Gary Anthony Haberl) [2022] NSWSC 704 Hearing dates: 16 and 25 March, 29 April 2022; further written submissions 17 May 2022 Decision date: 30 May 2022 Jurisdiction: Equity - Probate List Before: Kunc J Decision: Administrator removed by Court of its own motion Catchwords: EQUITY – SUCCESSION – Executors and administrators – Removal of administrator – Court acting of its own motion EQUITY – Trusts and trustees – Powers, rights, duties and liabilities – Power to provide for maintenance and advancement of minor beneficiaries – Administration of trusts – Court's supervision of – Appointment and removal of trustees OCCUPATIONS — Legal practitioners — Barristers — Duty to court Legislation Cited: Family Law Act 1975 (Cth) Jurisdiction (Cross-Vesting) Act 1987 (Cth) Probate and Administration Act 1898 (NSW) Cases Cited: DJ Singh v DH Singh [2020] NSWCA 30 Haberl v Haberl [2022] NSWSC 192 Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18 Category: Principal judgment Parties: Andrea Haberl (Administrator) Anthony Campbell (Purported Trustee) Representation: Counsel:

N Simpson (Andrea Haberl) P Bambagiotti (Amicus Curiae)

Solicitors:

Tranter Lawyers (Andrea Haberl) File Number(s): 2020/157572 Publication restriction: No

Judgment

Summary 1. In the course of hearing separate proceedings, the Court became aware of conduct that appeared to be in breach of trust by Andrea Haberl in her role as administrator of the estate of her late ex-husband, who had died intestate. The sole beneficiary of that estate is the minor daughter of the marriage. Without intending any disrespect, Andrea and others shall be referred to by their given names in these reasons, which represent the outcome of the Court's exercise on its own motion of its supervisory jurisdiction over trusts and trustees. 2. These probate proceedings were initially commenced by Andrea in May 2020 for letters of administration of the Estate of Gerhard (known as Gary) Haberl (the Estate). On 24 March 2021, letters of administration were granted to Andrea. 3. Gary was Andrea's former husband. At the time of his death, they had a young daughter, Isabella, who was born in 2015. Isabella is the sole beneficiary of the Estate. 4. It later emerged from separate proceedings between Andrea and Gary's siblings, Robert and Karin Haberl, that Andrea had engaged in a course of conduct as administrator which cast serious doubt on her ability to manage the Estate on behalf of Isabella (see: Haberl v Haberl [2022] NSWSC 192 ("Haberl (No 1)"). Accordingly, I made orders on 16 March 2022 which had the effect of relisting the probate proceedings for the purpose of considering Andrea's suitability as administrator of the Estate. 5. The Court's initial hope was that the interested parties would reach agreement as to how it could be ensured that the Estate would be applied for Isabella's benefit. This would avoid the need for any third party to be appointed if the Court could not be satisfied that Andrea remained a suitable administrator. Unfortunately, agreement could not be reached on critical matters. 6. For the reasons that follow, the Court has determined that Andrea is not an appropriate person to continue to manage the Estate on Isabella's behalf. This is because she has demonstrated that she is either unwilling or incapable of separating Isabella's interests from her own. She also exhibits a troubling lack of insight into her conduct. Accordingly, the Court has determined that, despite any misgivings regarding the associated fees, the NSW Trustee and Guardian should be appointed to administer the Estate. 7. Andrea was represented by Mr N Simpson of Counsel. The Court appointed Mr P Bambagiotti as amicus curiae in the interest of Isabella. Anthony Campbell (Andrea's brother), who had purportedly been appointed by Andrea as the trustee of the Estate, was not represented in the proceedings and only appeared in person on one occasion. Robert and Karin Haberl were also present throughout the proceedings as interested parties but did not have leave to participate in any substantive way.