Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206

Supreme Court New South Wales

Medium Neutral Citation: Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206 Hearing dates: 20 – 24 February 2023 Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Equity Before: Meek J Decision: Claims regarding default made out. Claim for commission dismissed. Catchwords: SUCCESSION — Executors and administrators —Deceased died in 2014 leaving a substantial estate in excess of $23M the overwhelming majority of which was comprised of 12 pieces of real property 7 of which were specifically gifted and 5 of which fell into residue — The plaintiffs (3 of 6 children of the deceased) complained that the defendant executor (another child) engaged in conduct which has the effect of delaying administration of the estate and in particular complained of failures to promptly sell or rent or otherwise transfer assets of the estate constituting wilful default and devastavit — One of the plaintiffs commenced 3 proceedings including these proceedings against the estate. The first two proceedings (rectification/family provision and revocation of grant of probate) were previously dismissed — The defendant claimed commission asserting any delays are at least explained by addressing the prior proceedings EVIDENCE — Mode of appearance at hearing — Audio visual and other mode of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW) EVIDENCE — Application of "rule" in Jones v Dunkel EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 to answering questions — Objection may be taken by a witness to evidence on a particular topic as distinct from evidence on a particular question SUCCESSION — Executors and administrators — devastavit and wilful default — Assessment of claims of devastavit and wilful default must be considered in light of the terms of the deceased's Will and in particular whether the deceased has by provisions of the Will in the powers given to the executor modified fiduciary duties SUCCESSION — Executors and administrators — Exercise of powers under Will — Discussion of discretionary considerations SUCCESSION — Executors and administrators —devastavit and wilful default — Discussion of principles regarding wilful default SUCCESSION — Executors and administrators —Even if an executor is not an initial purchaser, as long as a contract remains executory and the executor has power either to enforce it, rescind it or alter it, the executor is under the general law precluded from repurchasing the property from his own purchaser, or purchasing the property on his own account TAXES AND DUTIES — Definition of "tax agent service" in Tax Agent Services Act 2009 (Cth) — "tax agent service" includes advising an entity about liabilities or obligations that arise or could arise under a taxation law or representing an entity in their dealings with the Commissioner TAXES AND DUTIES — Whether work carried out by an accountant or registered tax agent in relation to the Duties Act 1997 (NSW) which is not a "taxation law" as defined involves such agent impermissibly engaging in legal practice such as to contravene s 10 Legal Profession Uniform Law (NSW) — Agent not joined as a party — In absence of joinder procedural fairness precludes finding on the issue determined PROCEDURE — Notice of judgment — Where judgment affects rights or interest of person who is not a party — Giving of notice under UCPR 46.12 to enable non-party interests to be protected — Juul v Northey [2010] NSWCA 211 applied WILLS, PROBATE and ADMINISTRATION — Executors — Claim for commission — Discussion of considerations regarding assessment of quantum — Principles applicable — Guideline rates — Standard of reasonableness WILLS, PROBATE and ADMINISTRATION — Executors — Claim for commission — Factors relevant to determining the amount (if any) of commission — Discussion of principles and circumstances in which commission might be denied Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Duties Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Income Tax Assessment Act 1997 (Cth) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Probate and Administration Act 1898 (NSW) Supreme Court Rules 1970 (NSW) Tax Agent Services Act 2009 (Cth) Tax Agent Services Regulations 2022 (Cth) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Atkins v Godfrey [2006] WASC 83 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Bartlett v Barclays Bank Trust Co Ltd (No 2) [1980] Ch 515 Beck v Henley [2014] NSWCA 201; (2014) 11 ASTLR 457 Blackman v Permanent Trustee Co Ltd [2003] NSWSC 305 Bowering v Knox and Bowering (No 2) [2014] NSWSC 1749 Brooks v Young (2018) 131 SASR 365; [2018] SASCFC 81 Chiro v Linton (No 2) [2009] SASC 197 Clerical Administrative and Related Employees Superannuation Pty Ltd v Bishop [1997] FCA 714; (1997) 76 IR 139 Council of New South Wales Bar Association v Dwyer [2015] NSWCA 302 Council of the Law Society of New South Wales v Australian Injury Helpline Ltd (2008) 71 NSWLR 715; [2008] NSWSC 627 Delves v Gray [1902] 2 Ch D 606 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Ex parte Bennett (1805) 10 Ves Jun 381; 32 ER 893 Felman v Law Institute of Victoria [1998] 4 VR 324 Ford v Princehorn; Estate of Ford [2012] NSWSC 1165 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Galea v Camilleri [2019] NSWSC 167 Garthshore v Chalie (1804) 10 Ves Jun 1; 32 ER 743 Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 Gray v Guardian Trust Australia [2003] NSWSC 704 Howling v Kristofferson (Supreme Court (NSW), Cohen J, 14 October 1992, unrep) In re Ralphs (deceased); Ralphs v District Bank Ltd [1968] 1 WLR 1522 In re Speight; Speight v Gaunt (1883) 22 Ch D 727 In re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 In the Will of Henry Sherringham (1901) 1 SR (NSW) 48 In the Will of James Greer (1911) 11 SR (NSW) 21 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Estate of Farley (Supreme Court (NSW), Santow J, 10 October 1997, unrep) Juul v Northey [2010] NSWCA 211 Karger v Paul [1984] VR 161 Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 Manfred v Maddrell (1950) 51 SR (NSW) 95 Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286 Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22 Mordecai v Mordecai (1988) 12 NSWLR 58 Ollis v Melissari [2005] NSWSC 1016 Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482 R v Ahmed [2001] NSWCCA 450 Re Badstuebner (deceased) (2020) 4 Qd R 490; [2020] QSC 144 Re Buckingham (2016) 51 VR 453; [2016] VSC 757 Re Estate Ford; Application for Executor's Commission [2016] NSWSC 6 Re Estate Gowing (2014) 17 BPR 32,763; [2014] NSWSC 247 Re Hillsea Pty Ltd [2019] NSWSC 1152 Re Tebbs (deceased); Redfern v Tebbs [1976] 1 WLR 924 Vaughan v Legal Services Board [2008] VSC 200 Walker v Walker [2022] NSWSC 1104 Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469; [1998] FCA 51 Williams v Scott [1900] AC 499 Xia v Santah Pty Ltd [2003] NSWSC 807 Texts Cited: Dal Pont GE, Law of Executors and Administrators (2022, LexisNexis) Dal Pont GE, Law of Succession (3rd ed, 2021, LexisNexis) Heydon JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Janes Stephen, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) Young, Newton and Cahill, Conveyancing Service NSW (LexisNexis, online) Category: Principal judgment Parties: Carol Galea (First Plaintiff) Reno Camilleri (Second Plaintiff) Peter Camilleri (Third Plaintiff) John Camilleri (Defendant) Representation: Counsel: A Crossland and A Rao (Plaintiffs) L Ellison SC (Defendant)