Re Estate of the Late Gerhard Anthony Haberl (known as Gary Anthony Haberl) (No 2)

This judgment explains the final orders to be made by the Court to give effect to its judgment in in Re Estate of the Late Gerhard Anthony Haberl (known as Gary Anthony Haberl) [2022] NSWSC 704 (the Primary Judgment) in relisted proceedings 2020/157572 (the Probate Proceedings). These reasons assume familiarity, and should be read with, the Primary Judgment. As in the Primary Judgment, the Court will refer to the parties and other participants by their given names.

It is important to recall at the outset that what has given rise to the Primary Judgment and these reasons was not what might be described as usual inter partes proceedings. What has occurred has been by reason of the Court of its own motion exercising its supervisory jurisdiction in relation to trusts and trustees and, to the extent necessary given the involvement of a minor, its inherent, protective jurisdiction (also referred to as its parens patriae jurisdiction).

In the Primary Judgment, the Court concluded that Ms Andrea Haberl was not suitable to remain as administrator of the estate of the late Gerhard Anthony Haberl (known as Gary Anthony Haberl) (the Estate), from whom she was divorced at the time of his death. The minor daughter of Andrea and Gary, Isabella, is the sole beneficiary of the Estate. The purpose of the Court’s intervention has been to ensure that Isabella’s interests are properly protected.

The Court determined that the best course of action to protect Isabella’s interests was to appoint the NSW Trustee and Guardian (NSW TAG) as administrator of the Estate. Given the Court’s conclusions about Andrea’s conduct, I also came to the view that NSW TAG should be given some degree of oversight of Andrea’s management of the Isabella Sophia Haberl Trust Fund (the Fund) which comprises the proceeds of Gary’s life insurance policy. Isabella was the named beneficiary of the policy and, therefore, the proceeds did not form part of the Estate and are the subject of an express trust created at the instigation of the insurer due to Isabella’s minority.

While this judgment primarily relates to the Court’s final orders, it is also concerned with Robert and Karin Haberl, who were the defendants in Haberl v Haberl [2022] NSWSC 192 (Haberl v Haberl). They were not parties to the relisted Probate Proceedings, although the Court permitted them a degree of informal involvement, especially in the early stages of the relisting. They sought leave to be joined as parties after the Primary Judgment was delivered. Leave was refused and the Court’s reasons for doing so are set out in this judgment.

For the reasons given below, the Court has determined:

Andrea continued to be represented by Mr N Simpson of Counsel. The NSW Trustee and Guardian’s submissions were prepared by Mr H Morrison of Counsel. Isabella’s interests continued to be represented by Mr P Bambagiotti of Counsel as amicus curiae.

Immediately following the publication of the Primary Judgment, my Associate wrote to all parties (and included Robert and Karin in that correspondence) suggesting this form of orders (the Proposed Orders):

A direction was also made in chambers allowing “any party that wishes to make submissions in relation to the form of orders circulated to the parties … is to file and serve any submissions on or before 6 June 2022”.

On 6 June 2022, NSW TAG sought (and was granted) an extension of time to provide a submission until 10 June 2022. In the events which happened, further written submissions were made on behalf of NSW TAG and Andrea, but not on behalf of Isabella.

On 7 June 2022, following correspondence from Robert and Karin detailed at [15] to [69] below, the Court suggested two possible amendments to the proposed orders (the Amended Proposed Orders):

On 9 June 2022, written submissions were provided on behalf of NSW TAG. Those submissions were “limited to procedural, jurisdictional and other matters” because NSW TAG declined to be heard as to the substance of the Proposed Orders. The submissions may be summarised as:

Andrea was invited to respond to NSW TAG’s submissions, which she did on 14 June 2022. Andrea’s submissions may be summarised as:

Further submissions were received from NSW TAG on 14 June 2022 in relation to its capacity to act as receiver in relation to intangible property (see [12(4)] above). NSW TAG submitted:

At 11:27am on 28 February 2022, Robert Haberl emailed a letter addressed to my staff. The letter detailed Robert’s concerns about what he considered “highly questionable” conduct by Andrea Haberl, Anthony Haberl and their respective solicitors in relation to the Estate. Relevantly, it also stated:

A response was provided to Robert’s email at 11:54am on the same day acknowledging receipt and stating the letter had been brought to my attention.

At 12:24pm on 1 March 2022, Karin Haberl emailed a document titled “Statement Karin Haberl” that included:

The letter also detailed Karin’s concerns that Andrea and her legal team would “manipulate” NSW TAG if it was appointed as administrator by “withholding information about my family’s mere existence let alone our desire to be involved in Isabella’s life”.

A response was provided to Karin’s email at 12:34pm on the same day acknowledging receipt of the email and attachments. The email also noted that, as I was in Court dealing with a different matter, the letter would be brought to my attention at a future time.

Later that day, at 5:01pm, this response was provided to Karin’s letter by my staff:

On 14 March 2022, an email was sent to Andrea’s legal representatives, Robert and Karin which stated:

At 4:29pm on 15 March 2022, Robert sent an email with a document titled “Submission – Directions Hearing” attached. The email included:

Robert’s submission reiterated many of the facts known to the Court, reaffirmed that he and Karin were “aggrieved” by what had occurred and requested that Andrea and her legal representatives “be held accountable”.

At 4:40pm on the same day, a response was sent to Robert acknowledging receipt of his correspondence. The email also stated: “His Honour will hear Karin at tomorrow’s hearing”.

On 16 March 2022, the parties attended a directions hearing via videolink. Andrea and her legal representatives were present, as were Mr Anthony Campbell as the purported trustee of the Estate and Mr Luke Williams on behalf of NSW TAG. Robert and Karin Haberl were also present.

After Mr Simpson and Mr Williams had concluded their submissions, Robert and Karin were invited to share their thoughts and views on the matter. The transcript names Robert as the first defendant and Karin as the second defendant. That is an error because they were not parties, but the transcript reflected their status in the proceedings brought against them by Andrea (see [5] above). For the sake of clarity, their first names have been used when quoting the transcript.

Robert was invited to address the Court first (Tcpt, 16 March 2022, pp 12-13(44-50; 1-28)):

After Robert had concluded, Karin was invited to address the Court (Tcpt, 16 March 2022, pp 13-15):

Karin described a plan in which the funds of the Estate would be used to purchase a property around Newcastle where many of Isabella’s paternal relatives reside. Karin proposed that she could manage the property until Isabella attained her majority.

When Karin had concluded her plan for the Estate, the following exchange occurred:

At 2:30pm on 24 March 2022, Karin sent an email to my Associate with a “short statement I have prepared for the Court’s consideration before tomorrow’s hearing”. The written statement included:

At 2:52pm on the same day, a response was emailed to Karin acknowledging receipt.

At 4:15pm on 24 March 2022, Robert sent an email with an attachment titled “Statement – Directions Hearing”. That statement was largely a retelling of facts already known to the Court which Robert had prepared “more for the benefit of Mr Bambagiotti, whose recent appointment as amicus curiae in Isabella’s interest we have welcomed”. The statement reiterated his belief that Andrea’s actions were “immoral, reprehensible and unlawful and she needs to be held accountable for her actions”.

At 5:04pm a further email was received from Robert which stated: “In light of the further material provided by Andrea Haberl, and all the issues that now need to be considered in the interests of my niece, Isabella, with due respect, I feel that the allotted time of up to 1.5 hours is not sufficient time to achieve a satisfactory outcome”.

A response was provided at 5:08pm on the same day acknowledging receipt of Robert’s correspondence.

Robert and Karin were again present at the hearing on 25 March 2022. At that hearing, I noted that the Court had received what I took to be submissions from Robert and Karin (Tcpt, 25 March 2022, p 1-2(50;1)). Robert and Karin were also to be given an opportunity to be heard after the parties “[t]o the extent it may be necessary” (Tcpt, 25 March 2022, p 2(18)).

At that hearing, Mr Simpson raised objection on behalf of Andrea to the continued participation of Robert and Karin. Mr Simpson submitted that their involvement was unnecessary and inappropriate for three reasons:

Robert and Karin were not invited to present their views after the parties had concluded. That decision was explained to them in these terms (Tcpt, 25 March 2022, p 10(1-12)):

Towards the conclusion of the hearing, this exchange occurred with Robert (Tcpt, 25 March 2022, p 12(13-31)):

At 4:44pm on 5 April 2022, Robert sent an email to my Associate detailing information regarding Andrea’s conduct in relation to the Fund. The email detailed Robert’s concerns in relation to Andrea’s dealings with the Fund and requested orders be made requiring an account from Andrea. The email stated: “If it pleases the Court, I would require a response from Andrea and her lawyer to the above reasonable questions by close of business, this Thursday 7 April 2022”.

At 5:17pm on the same day, a response was sent to Robert which stated:

At 12:20pm on 25 March 2022, Robert sent an email which stated: “Is the case number 2020/157572 correct – that has been used on previous correspondence? Does it take over from the Case Number of the previous proceedings, being 2021/00126392?”

No response was sent to Robert as my Associate was not in chambers on that day (being the Friday) and the following Monday both my Associate and Tipstaff tested positive for Covid-19.

At 1:03pm on 6 April 2022, Robert sent a follow-up email:

A response was provided by email at 3:05pm on the same day explaining that the Probate Proceedings had been reopened so that formal orders could be made in relation to Isabella’s interest in the Estate. Those orders could only be made in the Probate Proceedings.

At 3:11pm on the same day, Robert sent an additional email that stated: “I am in the process of seeking legal advice as suggested by you”.

A final directions hearing occurred in the matter on 29 April 2022. Robert and Karin observed but did not participate in that hearing.

On 16 May 2022, Karin forwarded a letter that she had provided to Mr Bambagiotti as amicus curiae. The letter contained information related to Gary and Andrea’s relationship as well as Andrea’s interactions with Robert and Karin. Karin requested Mr Bambagiotti to consider “recommending that my family are allowed to invest $60,000” on Isabella’s behalf “so that we can be part of Isabella’s life even if in a very small way”.

At 2:04am on 26 May 2022, Robert emailed a “final brief submission” to my Associate. The submission once again expressed Robert’s concerns related to what he perceived to be breaches of trust by Andrea and expressed his support for what Karin had written to Mr Bambagiotti. The submission also noted Robert’s gratitude for the appointment of Mr Bamabagiotti as amicus curiae and the Court’s indulgence in permitting the involvement of Robert and Karin.

At 9:09am on the same day, my Associate responded: “as you are not a party in the probate proceedings and have not been given leave to appear or make submissions his Honour will not pay any regard to your submissions”.

On 30 May 2022, the Primary Judgment was electronically published and included:

The outcome of that decision was that Andrea’s letters of administration were to be revoked and NSW TAG was to be appointed in her place.

The same day, an email was circulated to the parties which included Robert and Karin. That email listed the Proposed Orders, including an order that “[a]ny party that wishes to make submissions in relation to the form of orders circulated to the parties by email on 30 May 2022 is to file and serve any such submissions on or before 7 June 2022”.

At 10:33am on 2 June 2022, Karin emailed to my Associate a document titled “Request for Standing” which said:

A response was emailed to Karin at 11:08am on the same day that stated: “As his Honour has delivered judgment in the matter, you should direct any information or enquiries related to the Estate to the NSW Trustee & Guardian once it has been appointed”.

At 1:14pm Karin sent an email that quoted the Proposed Orders at [8] above and stated:

At 2:35pm a further response was provided to Karin by my staff that stated:

Later that day, Robert telephoned my chambers and spoke to my staff. During that telephone conversation, Robert expressed his belief that he and Karin were entitled to be joined as parties. He was advised to send an email detailing this and to obtain legal advice.

At 1:17am on 3 June 2022, Robert sent an email to my chambers. In the email, he stated that he had attempted to contact the NSW Trustee and Guardian but had been unable to speak to someone. He sought to “formally request urgent leave to make a brief submission”. The email also stated (emphases in original):

At 9:33am on the same day, a response was sent to Robert which stated:

At 1:30am on 7 June 2022, Robert sent a further email in response which included (emphases in original):

The email then set out the basis upon which Robert believed that he and Karin were entitled to be granted standing which included:

Robert then went on to say:

A response was emailed to Robert at 8:40am on the same day:

The email then laid out the Amended Proposed Orders as set out in paragraph [11] above.

Robert took the amendment to Order 11 to mean that he and Karin were able to make submissions and sought an extension of time to do so.

At 2:29pm on the same day, an email was sent to Robert and Karin which clarified that the amended orders would allow them to “apply to relist the probate proceedings at a future time … [i]t does not grant liberty for you to provide submissions”.

At approximately 3:30pm on the same day, Robert telephoned my chambers and spoke to my staff. I understand that he expressed his dissatisfaction with what he viewed to be judicial misconduct because he and Karin were denied the ability to participate or be joined as parties. He was advised to seek advice from a lawyer who was experienced in estate matters to discuss his options.

At 12.33pm on 16 June 2022, as these reasons were being finalised, Robert sent a further email to my chambers, the beginning and end of which were:

The statutory remit of NSW TAG is expressed in ss 10 and 11 of the Act, including:

There was some difference between NSW TAG and Andrea as to the source of the Court’s power to appoint NSW TAG as receiver under s 11(1)(f) (see [12(5)] and [13(2)] above).

Section 67 of the Supreme Court Act is:

Alternatively, the Court’s protective jurisdiction could be engaged. NSW TAG referred the Court to Re PDC [2021] NSWSC 1701 in which Lindsay J said:

The Court’s inherent jurisdiction was not engaged in that case because s 86A(2)(a) of the NSW Trustee and Guardian Act 2009 (NSW) was available to achieve the same purpose.

In JMK v RDC [2013] NSWSC 1362, Lindsay J stated with respect to the Court’s power to appoint a receiver:

The appointment of a receiver in relation to a cause of action was adverted to by Lindsay J in Re W and L (also referred to at [14(1)] above):

In that case, no estate manager was appointed to conduct personal injury litigation because there was already a tutor who could do so (at [39]). Nor was there any special need to appoint an estate manager prior to the determination of those proceedings (at [46]). Crucially, his Honour held that any such order would need to be for the benefit, and in the interests of, the protected person (at [38]).

In Bauskis v Liew [2013] NSWCA 297, Gleeson JA (Beazley P and Barrett JA agreeing) considered the authorities about unrepresented litigants. His Honour summarised these into a series of propositions:

These propositions were also quoted by Gleeson JA (Macfarlan and Emmett JJA agreeing) in Pollock v Hicks [2015] NSWCA 122 at [91].

In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, Allsop P described the nature of managing proceedings involving unrepresented litigants:

The Court’s duty to unrepresented litigants was also set out by Beazley JA in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]. That consideration has often been cited in later judgments of the Court, including this passage:

There is a slight distinction in this case from the authorities to which I have just referred because Robert and Karin were never parties to these proceedings, although they had been parties to the case preceding it. The present issue arises from the fact that, as non-parties to the Probate Proceedings, Robert and Karin were permitted a degree of informal input in these relisted Probate Proceedings which, upon objection by a proper party to the matter (Andrea) and the appointment of an amicus curiae to represent the other proper party (Isabella), they were then denied. However, I do not consider that distinction diminishes the applicability to this case of the authorities concerning unrepresented litigants.

There was much agreement between the parties in respect of the Proposed Orders. NSW TAG acceded to the Proposed Orders with one addition and raised no opposition to the Proposed Amended Orders other than to note the limitations of its ability to engage with Robert and Karin. Andrea acceded to the Proposed Orders, including the additional order suggested by NSW TAG, but opposed the Amended Proposed Orders.

Noting the issues in dispute, there are two matters that require the Court’s consideration: first, the means by which the NSW TAG should be appointed to manage Isabella’s Estate; and, second, the matter of Robert and Karin’s involvement and the Amended Proposed Orders.

The Court accepts the submission of NSW TAG that an appointment as receiver would best reflect the Court’s intention to grant NSW TAG a measure of supervisory authority over Andrea’s management of the Fund.

Notwithstanding that none of the authorities set out at [14] and [76]-[77] above expressly determine the question of the validity of appointment in respect of intangible property, the Court finds that it has power to do so in this case. This is for two reasons.

First, the words of s 11(1)(f) refer to “any other property” and make no distinction between tangible or intangible property.

Second, the Court is satisfied that such an appointment is both necessary and in the best interests of Isabella: Re W and L at [76]-[77] above. At present there is no effective oversight of Andrea’s management of the Fund in circumstances where the Court has found she has not conducted herself properly in the administration of the Estate. Further, for the reasons set out at paragraph [99] below, the Court is not satisfied that the involvement of Robert and Karin in managing the Fund would be for Isabella’s benefit. As an independent statutory body, NSW TAG is the appropriate entity to ensure that Isabella’s interests are protected.

Applying the legal principles set out by Lindsay J reproduced at paragraph [73]-[75] above, the Court is satisfied that the power to make such an order arises out of a combination of the Court’s inherent protective jurisdiction and s 67 of the Supreme Court Act together with s 11(1)(f) of the Act. Given the publication of these reasons, it is not necessary to amend the Proposed Orders to record the source of the Court’s power. However, taking note of Mr Morrison’s submission set out in paragraph [14(2)] above, I will expand the form of the order to make clear the extent of NSW TAG’s powers as receiver of Isabella’s right to compel the due administration of the Fund.

Robert and Karin were permitted to participate in as much of the Probate Proceedings as, in my view, they could properly do so without being parties. They were included in all email correspondence between the Court and the parties, provided with copies of documents where appropriate, informed of hearing dates and given videolink details so that they could attend if they wished to do so. For some of the duration of the proceedings, Robert and Karin were also able to provide their views both in writing and orally. Despite this, they were never formally joined as parties to the proceedings. Eventually, the Court limited their participation and would no longer take into account their views, although they were still included in all correspondence and informed of any hearings should they wish to attend.

In addition to being kept informed, Robert and Karin were urged on several occasions to obtain legal advice in respect of their ability to participate. Such advice appears to have been obtained although it is not clear when this occurred (see Robert’s email at 1:17am of 3 June 2022 at [59] above). The Court cannot comment on the substance of that advice except insofar as it might be thought on the little information available that it was not given by a solicitor with experience in estate matters (see Robert’s email of the same time and date).

The authorities above at [78] to [81] demonstrate that the Court has two primary and competing concerns when dealing with unrepresented litigants: first, to ensure that unrepresented litigants are given sufficient procedural information to navigate their legal problems as laypersons; and, second, to ensure the fair administration of justice between the parties.

The legal interests at stake in these proceedings were those of Andrea and Isabella as administrator and beneficiary of the Estate. Anthony Campbell also had a real legal interest as the purported trustee of the Estate and as a person in relation to whom orders were to be made. His joinder (which I will formally order as part of the orders that conclude these reasons) was consented to by the other parties. It was the Court’s chief concern that justice be administered fairly between them. Concurrent to that was the need to provide information to Robert and Karin as unrepresented persons who had an interest (but not using that word in its technical legal sense) in what was happening concerning their neice. Even so, that information could not be in the form of judicial advice, including as to how (if at all) they might obtain standing to be formally joined and heard.

It is clear on the facts related above that Robert and Karin have considerable concerns for their niece, Isabella. They were naturally invested in the Probate Proceedings as her relatives. Mindful of this, the Court initially invited their participation, especially as there was at that time no independent third party to advocate for Isabella’s interests. However, they did not have a legal interest which would have permitted them to exercise all the rights of the actual parties. For example, a personal interest in family matters has been held to be insufficient to confer a caveatable interest in a deceased estate: Re Brennan Estate; Brennan v McGuire [2010] NSWSC 1249 at [7] (Palmer J), a conclusion with which I respectfully agree. The interest Robert and Karin were required to demonstrate was an interest in the Estate, not merely an interest in Isabella’s welfare. While those two matters may appear interrelated the latter does not equate to the former.

As explained to Robert by email at [60] above, the Court took the view that they should not be granted standing for two reasons:

The first of those matters caused more friction than the second (though it was not without controversy). It was clear that Karin was aware of the formal processes involved in applying for letters of administration, having previously applied before Andrea lodged a caveat against Karin’s application. The Court accepts that at the hearing on 16 March 2022 she expressed an informal wish to be considered for the grant of letters of administration of the Estate. She also indicated that she would not be making any formal application. The Court inquired as to whether she had received legal advice on the matter which she had not.

In my respectful view, it would not have been appropriate to go further on that occasion by purporting to advise Karin about what she might do with respect to an application for letters of administration or the consequences of such an application. She was already aware of the proper procedure for applying for letters of administration and had been encouraged to obtain legal advice. In any event, at that time it did not affect the participation of either Robert or Karin in the Probate Proceedings because the Court intended that they should be able to express their views informally on Isabella’s behalf until it was no longer necessary. That came to pass when Mr Bambagiotti was appointed as amicus curiae.

The second of the matters at paragraph [94] above rendered Robert and Karin’s participation unnecessary insofar as they were seeking to protect Isabella’s interests. The Court respects and accepts the genuineness of their concern for Isabella’s welfare. While the Court appreciates the effort they expended, this was clearly done without the benefit of legal assistance. In the Court’s view, Isabella’s interests were properly to be served by the amicus curiae. Robert and Karin may not agree with that assessment. Mindful of that fact, the Court suggested the Amended Proposed Orders.

There is obviously much tension between Andrea and the Haberl siblings. Robert and Karin, by their own admission, have found it difficult at times to manage their anger and frustration towards her. The Court finds that there is a real possibility that if they are granted any degree of oversight of the Fund, Robert and Karin could bring undue complaints or otherwise seek to assert their views which would ultimately be to Isabella’s detriment by causing further expense to be incurred by the Estate or the Fund. The Court is confident her interests will be properly protected by NSW TAG. This is not to suggest bad faith on the part of Robert and Karin, but rather to recognise a real risk that their strong adverse feelings towards Andrea will infect their judgment on these matters. While Robert’s most recent email (see paragraph [69] above) is, with respect, to his credit, it also supports the conclusion which the Court has reached on this point. For these reasons, accepting the submissions made on behalf of Andrea, the Court will not make the Amended Proposed Orders.

Furthermore, the Court takes into account the timing of Robert and Karin’s requests to be granted standing. The Court must always act with consideration of the overriding purpose and case management principles in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), which include:

Robert and Karin sought leave to be joined after judgment in the matter was handed down. The Court is satisfied that there is no proper legal basis upon which they have standing to permit their joinder. Nor is there any basis to find that a failure to join them at this late stage will result in a substantive injustice to Isabella’s interests. Given these conclusions, the proper course is to make final orders to bring the matter to an end. To do otherwise would be contrary to the objects of case management to ensure cost effectiveness, efficiency and timeliness in the resolution of disputes.

The Court’s orders are: