Goldspring v Jordan

1. [1]

   BELL CJ: The Appellants, Peter Goldspring, Mark Goldspring and Marianne Goodchild, commenced proceedings on 16 April 2015 seeking probate in relation to the estate of the late Frederick Goldspring (the deceased), who died on 2 November 2014 (the Probate proceedings). The Appellants and the Respondents, Katherine Jordan, Rhonda Thomas and Lynette Goldspring, are all children of the deceased and beneficiaries under his will. The Appellants were granted probate in relation to the deceased’s will on 4 May 2016.

2. [2]

   By way of an Amended Notice of Motion filed on 16 October 2020, the Respondents sought orders that the Appellants be found guilty of, and punished for, civil contempt on the basis that they had failed to comply with court orders made in the Probate proceedings by Lindsay J on 25 November 2019 and Hallen J on 24 June 2020. The Respondents also sought orders that the grant of probate appointing the Appellants as Executors of the deceased’s estate be revoked and that their nominated solicitor be appointed as administrator.

3. [3]

   The orders of Linsday J and Hallen J, which will be set out more completely below, required the Appellants to serve accounts of their dealings with and administration of the deceased’s estate. These orders were made in the context of a dispute between the Respondents and the Appellants about the extent and administration of the deceased’s estate.

4. [4]

   Several accounts and documents were filed by the Appellants in purported compliance with Lindsay J and Hallen J’s orders. They included a 19 page spreadsheet produced on 24 July 2020 by the Appellants’ accountant, Mr John Rapson, entitled “Account Transactions - Estate of Fred Goldspring - For the period 1 November 2014 to 31 July 2020” (the Rapson Spreadsheet). However, by way of an Amended Statement of Charge (the Statement of Charge), which was annexed to the Amended Notice of Motion filed by the Respondents, it was alleged that the accounts and documents provided by the Appellants failed to comply with the orders of both Lindsay J and Hallen J in several respects, and that the Appellants were thereby in contempt of court.

5. [5]

   The parties agreed that the contempt charges should be heard and determined prior to, and separately from, the other orders sought in the Amended Notice of Motion, including the order seeking that the grant of probate to the Appellants be revoked. Thus, on 1 and 2 November 2021, a hearing before Henry J (the primary judge) was held only in relation to the contempt charges. Her Honour later determined the remainder of the issues raised by the Amended Notice of Motion on the papers. (A challenge in ground 2 of the Notice of Appeal to the combination of the contempt charges which fell to be determined by reference to the criminal standard of proof, and other relief which fell to be determined on the civil standard, was abandoned in the course of the hearing of the appeal in recognition of the fact that the bifurcated way in which the primary judge heard the matter was entirely in line with the approach of a majority of this Court in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173.)

6. [6]

   The Appellants argued before the primary judge that the contempt charges should be dismissed due to their form and lack of utility and because they amounted to an abuse of process. It was also submitted that the breaches of the orders of Lindsay J and Hallen J the subject of the charges had not been established by the Respondents on the evidence.

7. [7]

   On 14 June 2022, the primary judge held that the Appellants had committed civil contempt on the basis that they had breached certain of the orders made by Hallen J on 24 June 2020 by failing to provide a full account in relation to one of the bank accounts forming part of the deceased’s estate and by failing to produce documents supporting 62 line items in the Rapson Spreadsheet referred to as “Manual Journal” entries: Jordan v Goldspring (No 2) [2022] NSWSC 780 (Goldspring (No 2)).

8. [8]

   On 29 January 2024, the primary judge dismissed the Respondents’ application for revocation of the grant of probate to the Appellants and instead made orders requiring, in effect, that the Appellants produce documents remedying the breaches of Hallen J’s orders which gave rise to the contempt. The primary judge also ordered that the Appellants pay 50% of the Respondents’ costs of the Amended Motion on an indemnity basis without indemnification from the estate of the deceased and that the Appellants’ costs of the Amended Motion were to be paid without indemnification from the deceased’s estate: Jordan v Goldspring (No 3) [2024] NSWSC 11 (Goldspring (No 3)).

9. [9]

   By way of a Notice of Appeal filed on 7 March 2024, the Appellants appeal from the decisions in Goldspring (No 2) and Goldspring (No 3). The appeal is brought pursuant to s 101(5) of the Supreme Court Act 1970 (NSW) (Supreme Court Act) which provides for a right of appeal from “any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court.” Pursuant to s 75A(10) of the Supreme Court Act, this Court is empowered to “make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.”

10. [10]

    Although the Respondents had initially filed a Notice of Motion on 2 April 2024 seeking the dismissal of the appeal on the basis that it was filed 9 days out of time pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1)(c), the Respondents subsequently indicated that they no longer wished to press that Notice of Motion. Nonetheless, the Respondents submitted that in circumstances where no explanation for the delay in filing the Notice of Appeal has been provided and the proceedings involve a finding of contempt committed by the Appellants, the delay represents “particular carelessness” and “should not be lightly dismissed”.

11. [11]

    The Appellants submitted that, given the expedition with which the appeal came on for hearing and their relatively short delay in filing the Notice of Appeal, no prejudice was occasioned to the Respondents by the delay such that an extension of time for filing of the Notice of Appeal should be granted pursuant to UCPR, r 51.16(2). In my view, it is appropriate in all the circumstances to grant the modest extension of time sought.

Factual and procedural history

1. [12]

   As outlined above, the Probate proceedings were commenced by the Appellants on 16 April 2015 and probate was granted on 4 May 2016.

2. [13]

   The Inventory of Property disclosed assets valued at $2,398,993.60. Those assets included $1,486,526.68 held in seven bank accounts and share accounts, namely three National Australia Bank accounts, two Greater Building Society accounts, a “Cash Management Bank Account” (the Macquarie CM Account) and a “Macquarie Bank Share Portfolio” account (the Macquarie Share Account).

3. [14]

   On 28 May 2019, the Respondents filed a Notice of Motion in the proceedings and an affidavit of the Respondents’ solicitor in the proceedings at first instance, Mr Raymond Noland, dated 27 May 2019, which referred to a failure by the Appellants to disclose what had happened to net rental income amounts from a building owned by the deceased and the failure to provide any financial accounts in relation to the deceased’s estate other than “a heavily redacted bank statement”.

4. [15]

   On 25 November 2019, Lindsay J made the following orders:

5. [16]

   On 11 February 2020, Mr Rapson filed an affidavit in the proceedings setting out the following:

6. [17]

   On 24 June 2020, Hallen J made the following orders:

7. [18]

   On 24 July 2020, the Appellants filed an affidavit of Mr Rapson. Attached to that affidavit was a schedule “prepared by [Mr Rapson] in accordance with the orders of the Court made 24 June 2020.” That schedule was the Rapson Spreadsheet referred to at [4] above.

8. [19]

   The Rapson Spreadsheet was organised in columns headed “Date”, “Source”, “Description”, “Reference”, “Debit”, “Credit”, “Running Balance”, “Gross” and “GST”. Mr Nolan’s evidence was that it recorded 998 individual line items. Those items were organised chronologically within grouped categories, including “Bank Fees and Charges”, “Frederick Martin Goldspring”, “Freds Greater Account”, “Freds Greater Savings”, “Mac Bank CMA”, “NAB Classic – 4314”, “NAB Isaver No 1 – 5941”, “NAB ISaver No 2 – 5614”, “Non Deductible Legal Expenses”, “Rent Clearing Account”, “Rent Received”, “Retained Earnings” and “Shares in other companies – At Cost”. The “Source” of the transactions was described as being either “Spend Money”, “Receive Money” or “Manual Journal”. There were 62 line entries described as “Manual Journal” entries.

9. [20]

   On 19 August 2020, Mr Nolan gave evidence that he was provided with a folder containing 385 pages of documents from Catalyst Legal, the solicitors for the Appellants at first instance.

10. [21]

    On 21 August 2020, Catalyst Legal sent an email to Mr Nolan attaching bank statements for six bank accounts in relation to the deceased’s estate. Four of those accounts were National Australia Bank accounts and two were Greater Building Society accounts.

11. [22]

    On 27 August 2020, Mr Nolan emailed Catalyst Legal seeking the following “missing … account statements”:

12. [23]

    On 28 August 2020, Catalyst Legal emailed Mr Nolan attaching the Macquarie CM Account bank statements and the following email from the Third Appellant:

13. [24]

    On 7 September 2020, Mr Nolan sent a letter to Catalyst Legal noting a number of asserted deficiencies with the material provided on behalf of the Appellants, including that:

14. [25]

    On 8 September 2020, Catalyst Legal emailed Mr Nolan attaching “omitted statements received from the external Accountant.” A series of emails were then sent on 16 September 2020 attaching 392 pages of tax invoices issued by Catalyst Legal and the Appellants’ counsel. A letter was also sent on 16 September 2020 by Catalyst Legal to Mr Nolan in response to Mr Nolan’s 7 September letter. In relation to the complaint in respect of the Macquarie Share Portfolio Account, it was said that

15. [26]

    Item 675 of the Rapson Spreadsheet contained the following information under the heading “Mac Bank CMA”. First, it noted the receipt of money from Macquarie Bank on 5 April 2017. Second, under column E, headed “Debit”, it recorded the sum of $97,356.85. Third, it noted a running balance (presumably of the Macquarie CM Account) as at 5 April of $179,445.58. Fourth, under the column headed “Gross”, it also recorded the sum of $97,356.85. From the statement in the letter of 16 September that “[t]he accounts deal with the Macquarie Share Portfolio” and the reference to Item 675, it would appear (although the matter was not entirely clear) that the $97,356.85 amount had been transferred from, or was in some other way a realisation of, share sales associated with the Macquarie Share Portfolio Account.

16. [27]

    Attached to the 16 September 2020 letter was an affidavit of the Second Appellant sworn on 8 September 2020 by which he purported to verify the First Accounts filed on 11 February 2020 and an affidavit of the Third Appellant sworn 7 September 2020 by which she purported to verify the Rapson Spreadsheet. On 17 September 2020, Catalyst Legal provided Mr Nolan with a further affidavit sworn by the First Appellant on 16 September 2020 by which he too purported to verify the Rapson Spreadsheet.

The contempt proceedings

1. [28]

   On 30 September 2020, the Respondents filed a Notice of Motion seeking orders that the Appellants be found guilty of, and punished for contempt, that the grant of probate be revoked and that a solicitor nominated by the Respondents be appointed as the administrator of the deceased’s estate. Statements of Charge were also filed in relation to the contempt orders sought.

2. [29]

   By way of an Amended Notice of Motion, which was filed on 16 October 2020 and accompanied by the Statement of Charge, the following orders were sought:

3. [30]

   Relevantly, the Statement of Charge in relation to the orders of Lindsay J included the following:

4. [31]

   In respect of the orders of Hallen J, the Statement of Charge set out the following:

5. [32]

   In support of their Amended Notice of Motion, the Respondents relied on the affidavits of Mr Nolan dated 27 May 2019 and 30 September 2020 and the exhibits to those affidavits as well as a folder containing 255 pages of bank statements provided by the Appellants, invoices and other documents relating to legal fees also provided by the Appellants and a spreadsheet prepared by Mr Nolan entitled “legal expenses extracted from documents in the Folder (In Date Order)”. Mr Nolan also gave oral evidence in the proceedings. The Appellants did not adduce any evidence in the proceedings.

6. [33]

   On 13 October 2021, Mr Nolan received an email from Catalyst Legal attaching a new spreadsheet entitled “Account Transactions, Estate of Fred Goldspring for the period 1 July 2013 to 30 September 2020” which set out the transactions in the Rapson Spreadsheet in chronological order commencing on 30 June 2014 and ending on 31 August 2020.

Goldspring (No 2)

1. [34]

   The Appellants accepted that the summary of the legal principles offered by the primary judge in Goldspring (No 2) was correct. In particular, at [57]-[64] her Honour said:

2. [35]

   The primary judge held that the charges in relation to the orders of Lindsay J were not bad in form and should not be dismissed for duplicity because the matters referred to in sub-paragraphs 3(a)-(d) of the Statement of Charge were not cumulative and rather, each referred to “one act that is alleged … to constitute the breach of Order 6 of Lindsay J’s orders”: at [73]. Although her Honour held (at [79]) that Hallen J’s orders “are fairly to be construed as having been made in substitution for, rather than supplementary to, Lindsay J’s orders” such that “once Hallen J’s orders were made, there was no purpose to be served in requiring compliance with Order 6 of Lindsay J’s orders”, the primary judge went on to hold (at [86]-[88]):

3. [36]

   Her Honour recorded that the Appellants had conceded that they were in breach of order 6 of Lindsay J’s orders to the extent that the First Accounts did not include some 27 months of missing information: at [95]. However, the primary judge did not find that the Appellants had breached Order 6 by failing to attach receipts or tax invoices or because the First Accounts were not verified by an affidavit of each of the Appellants: at [97]. Rather, her Honour considered that “this is a case where the language of order 6 is open to a sensible and plain reading that the Executors were only required to file and serve a statement of accounts without the documents themselves or any verifying affidavits” (emphasis in original): at [106].

4. [37]

   The primary judge concluded (at [111]) that, although she was satisfied that the Appellants “were on notice and had knowledge of Lindsay J’s orders and that the breach constituted by the 27 months of missing information was the result of a deliberate act” (at [110]):

5. [38]

   In respect of the contempt charges pertaining to Hallen J’s orders, the primary judge held that the motion for contempt should not be summarily dismissed as an abuse of process. Her Honour said at [117] that she:

6. [39]

   In relation to the form of the charges, the primary judge held that the matters referred to in sub-paragraphs 11(a)-(k) of the Statement of Charge were not “cumulative in the sense that each and every matter needs to be established in order to establish non-compliance with Hallen J’s orders (as charged)”: at [119]. Her Honour also held that “the gist or substance of the allegation in paragraph 11 is sufficiently clear, namely, that the Executors have failed to comply with (and are in breach of) Hallen J’s orders in various respects notwithstanding the information contained in the Rapson Spreadsheet and the documents and verifying affidavits served by the Executors during the period 24 July 2020 to 17 September 2020”: at [120].

7. [40]

   At [125]-[126], the primary judge dismissed the charge contained in paragraph 12 of the Statement of Charge in respect of Hallen J’s orders holding that it was:

8. [41]

   In relation to sub-paragraph 11(d) of the Statement of Charge concerning Hallen J’s orders (see [31] above), the primary judge held that:

9. [42]

   In relation to sub-paragraphs 11(i) and (j) of the Statement of Charge, the primary judge noted that it was agreed that the materials produced by the Appellants did not include documents that supported the 62 “Manual Journal” line entries in the Rapson Spreadsheet, including the six profit distributions referred to in sub-paragraph (j): at [156]. While her Honour was not persuaded that bank statements existed in relation to those entries, she held “that some documents must exist that evidence the transactions described as Manual Journal entries”: at [159].

10. [43]

    At [160]-[162], her Honour said:

11. [44]

    The primary judge dismissed the charges contained in sub-paragraphs 11(a)-(c), (e)-(h) and (k) on the basis that they were insufficiently precise or because the breach of Hallen J’s orders charged had not been established.

12. [45]

    At [171], the primary judge concluded by holding that the Appellants had:

Goldspring (No 3)

1. [46]

   In Goldspring (No 3) at [54]-[62], the primary judge set out the “well known” principles applicable to the Court’s discretion to revoke a grant of probate. Her Honour then noted (at [73]) that the Appellants had provided “detailed and extensive accounts” which were only “incomplete in some particular and … limited respects” and went on to reason as follows (at [83]-[84]):

2. [47]

   As such, the primary judge rejected the Respondents’ application for revocation of the grant of probate but was satisfied that orders should be made to deal with the findings of breach in relation to the Macquarie Share Account and the Manual Journal entries: at [87]-[88].

3. [48]

   Her Honour then held that it was appropriate to order costs on an indemnity basis to “mark the Court’s condemnation of the Executors’ breach of the Court’s orders in circumstances where no punishment or penalty has been imposed and there is no evidence that the Executors have made an attempt to comply with the aspects of Hallen J’s Orders that were found to have given rise to findings of civil contempt”: at [95]. However, her Honour also considered that “some allowance should be made to recognise the mixed outcome” on the basis that the Respondents “succeeded on only three of the 12 contempt charges brought against the Executors, … have not succeeded on their revocation application and some of the charges brought … were found to be bad in form, unclear and involved ambiguity and imprecision”: at [96]. Thus, “[a]dopting a broad brush and impressionistic approach”, the primary judge (at [98]) ordered the Appellants to pay 50% of the Respondents’ costs on an indemnity basis.

4. [49]

   At [102], her Honour identified that the following orders would be made:

Grounds of Appeal

1. [50]

   The Appellants originally raised seven grounds of appeal. As already noted (see [5] above), ground 2 was abandoned and ground 7 relating to costs was not pressed as an independent ground of appeal with Mr Allen, who appeared on behalf of the Appellants, submitting that it would only arise in the event that the Appellants succeeded on any of their other grounds. The remaining grounds were as follows:

2. [51]

   The Appellants sought to set aside orders 1, 3, 5, 10 and 11 of the primary judge’s orders, set out at [49] above. It will be noted that orders 1, 3 and 5 are in common form save that each is directed to each of the Appellants separately. Orders 10 and 11 related to costs.

3. [52]

   The Appellants also originally sought to set aside orders 7 and 8 although noting that they had been complied with. The Appellants ultimately did not press the setting aside of orders 7 and 8, although the apparent subsequent compliance with those orders somewhat undermined complaints in relation to the clarity of the charges generally and, in particular, those charges in sub-paragraphs 11(d), (i) and (j) of the Statement of Charge relating to Hallen J’s orders.

4. [53]

   The Appellants’ written submissions were not as closely tied to the various grounds of appeal as they might have been, and it was not always clear to what particular ground particular submissions were addressed. Counsel in the Court of Appeal should endeavour to draft and structure their submissions by reference to individual grounds of appeal both as a matter of fairness to their opponents and to assist a busy Court in its preparation for hearing and in the production of reasons for judgment.

Ground 1

1. [54]

   By ground 1 of their appeal, the Appellants argued that the contempt charges contained in paragraph 11 of the Statement of Charge relating to Hallen J’s orders were not drafted with sufficient particularity to provide a fair hearing to the Appellants.

2. [55]

   This ground of appeal, itself drafted with a high degree of generality, was not the subject of any apparent elaboration in the Appellants’ written submissions, other than the equally general submission that paragraph 11 was drafted “too poorly to provide a fair hearing to the Appellants”.

3. [56]

   Focusing on paragraph 11 of the Statement of Charge (see [31] above), sub-paragraphs (a)-(k) set out with ample clarity the orders of Hallen J made on 24 June 2020 with which it was alleged the Appellants had failed to comply, and the manner in which that non-compliance was charged. No unfairness accrued to the Appellants by reason of the form in which paragraph 11 of the Statement of Charge was drafted. The chapeau to paragraph 11 spelt out that the Executors had “failed to comply with the following orders …”. The use of the plural “orders” made it clear that the paragraph was concerned with multiple individual breaches of particular orders of Hallen J. Contrary to one of the Appellants’ submissions, the charge was not alleging a single breach with the consequence that all sub-paragraphs (a)-(k) of paragraph 11 needed to be established in order for the charge to be made out.

4. [57]

   It was also submitted that paragraph 11 ought to have been read as preliminary to paragraph 12 of the Statement of Charge and accordingly dismissed in its entirety as ambiguous on the basis that it was unclear to the reader whether there was one charge contained in paragraph 12 or 12 separate charges found throughout paragraphs 11 and 12. This argument should be rejected. Whilst the primary judge held that paragraph 12 was “unclear” (Goldspring (No 2) at [125]), that conclusion did not affect paragraph 11 and, as already explained, paragraph 11 was a free standing charge of individual acts of non-compliance with particular orders that had been made by Hallen J on 24 June 2020. Whatever the precise role of paragraph 12 in the Statement of Charge, it did not operate to produce either ambiguity in relation to paragraph 11 of the Statement of Charge or unfairness to the Appellants.

5. [58]

   So much was manifested by the fact that each of the sub-paragraphs of paragraph 11 was addressed seriatim by the parties, and was dealt with individually by the primary judge. Indeed the Appellants enjoyed success in relation to sub-paragraphs 11(a)-(c), (e)-(h) and (k): see [44] above.

6. [59]

   The Appellants also submitted that:

7. [60]

   This submission is based upon an incomplete quotation of paragraph 11(d) of the Statement of Charge which was to the effect that the “Rapson Spreadsheet contains no accounting for the Macquarie Share Portfolio Account … other than a reference …”. Read in its entirety, there is no ambiguity or lack of clarity as to what was required. There was a credit balance in the Macquarie Share Account at the date of the death of the deceased in 2014 recorded in the Inventory of Property in the sum of $155,604.02 with the only other express reference in the Rapson Spreadsheet being the receipt of $97,356.85 on 4 April 2017. Other than that single reference, there was no further explanation as to the balance of the account as at the date of the Inventory of Property nor any document evidencing its balance at that time or from time to time.

8. [61]

   The expression “no accounting for the Macquarie Share Portfolio Account” was not “too ambiguous”. The charge fell to be understood in respect of the asserted non-compliance with Hallen J’s orders of 24 June 2024 which required “a complete form of accounts in respect of the property comprised in the estate of the deceased, verified by affidavit, commencing from the date of death…”: see [20] above.

9. [62]

   Contrary to [25(5)] of the Appellant’s Written Submissions, it is entirely clear from the language and context of sub-paragraph 11(d) of the Statement of Charge that the reference to “no accounting” was a reference to no account statements for the Macquarie Share Account. The final sentence of sub-paragraph 11(d) of the Statement of Charge was that “The Macquarie Share Portfolio Account xx29 was in existence from a date prior to the death of the deceased on 2 November 2014 until at least 4 April 2017, but no account statements have been produced to provide a review of the transactions affecting that account as required by Order 4.” (Emphasis added.)

10. [63]

    Ground 1 of the Notice of Appeal should be dismissed.

Ground 3

1. [64]

   Ground 3 related to two separate findings (the Findings), one in relation to the Macquarie Share Account, and one in relation to the 62 Manual Journal line entries in the Rapson Spreadsheet. Each Finding should be dealt with separately.

2. [65]

   The first Finding in respect of which the primary judge was said to have erred was her finding beyond reasonable doubt that the Appellants “failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account as referred to in paragraph 11(d) of the Statement of Charge relating to Hallen J’s Orders annexed to the Applicants’ Amended Motion.”

3. [66]

   Mr Allen’s submission in this regard was to focus on the terms of paragraph 11(d) of the Statement of Charge to the effect that the “Rapson Spreadsheet contains no accounting for the Macquarie Share Portfolio Account … other than a reference … to the receipt of money from Macquarie Bank in an amount of $97,356.85 on 4 April 2017”, and to submit that there was some other accounting in line 67 of the Rapson Spreadsheet such that it could not be concluded that there was “no accounting … other than the reference to the receipt of $97,356.85 on 4 April 2017”. This submission, with respect, was to play with words.

4. [67]

   Line or item 67 of the Rapson Spreadsheet, which was categorised as a “Manual Journal” entry, simply recorded “Pick up Loss on Sale of Shares” and contained a debit entry for 5 April 2017 of $12,281.65. It also contained an unexplained reference to “#338”. Whether or not this entry did indeed relate to the Macquarie Share Account was not obvious but, even if it did, that reference simply did not negative the primary judge’s impugned finding that the Appellants “failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account.” Her Honour’s reasoning at [142]-[147], reproduced at [48] above, was not demonstrated to have been in error.

5. [68]

   Appeal ground 3(a) must fail.

6. [69]

   The second Finding in respect of which the primary judge was said to have erred was her finding beyond reasonable doubt that the Appellants “failed to produce documents supporting the 62 Manual Journal line entries in the ‘Rapson Spreadsheet’ received on 24 July 2020, including the six profit distributions dated 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020 as referred to in paragraphs 11(i) and (j) of the Charge relating to Hallen J’s Orders annexed to the Amended Motion.”

7. [70]

   Again, this finding was not only open to her Honour but was clearly correct. The only argument advanced by Mr Allen in this respect appeared to be by reference to some rather unclear passages in the cross examination of Mr Nolan (by reference to documents which Mr Allen conceded were not contained in the Appeal Books) that some documents had been supplied in respect of some of the 62 Manual Journal entries.

8. [71]

   No meaningful submission was advanced to impugn the findings or reasoning of the primary judge (reproduced at [43] above) that were the subject of appeal ground 3(b).

Ground 4

1. [72]

   Ground 4 was to the effect that the primary judge erred in making the two sets of Findings which were the subject of ground 3 “when it was not proven that the documents existed or, if they did exist, were in the possession, custody or power of the Appellants so that any one of the Appellants could produce the document.”

2. [73]

   The first set of documents in question were the account statements for the Macquarie Share Portfolio account. As already noted, these were dealt with by the primary judge in Goldspring (No 2) at [141]-[146], reproduced at [41] above. To repeat part of [146]:

3. [74]

   That reasoning discloses an entirely proper and indeed obvious basis for inferring both the existence of the documents in question, and that they were in the “possession, custody or power” of the Appellants.

4. [75]

   Each of the Appellants verified the Inventory of Property referred to at [13] above. That included a reference to the Macquarie Share Account. The Appellants, or someone acting on their behalf, must have either had an account statement in their custody, power or control in order for that entry to be made, or else access to the details of that account: the Inventory of Property included the name of the institution and both the account number and separate holder identification number, and also stated a monetary value in relation to that account. The more probable inference is that the Appellants or their agent, Mr Rapson, had custody, power or control over the bank statement that allowed them to include and verify that entry in the Inventory of Property and if so, it is inexorable that subsequent statements existed for later periods and that such statements were equally within the custody, power or control of the Appellants. But even if that is not so, the Macquarie CM Account shows a steady stream of dividends from listed public companies (principally Woolworths, Star, Tabcorp, Aristocrat and ANZ) in 2015 and 2016 which cease on 7 April 2017. As noted above, there is an entry in the Rapson Spreadsheet for 5 April 2017 referring to “Pick up Loss on Sale of Shares”. The inference is irresistible that there were shares beneficially held by the deceased which were sold in the first few months of 2017. There must exist documents evidencing those transactions, and when the dividends and the statement in the Inventory of Property are considered together, it is clear that those transactions related to the Macquarie Share Account. There was no error in the primary judge’s conclusion in the first Finding that the Appellants have “failed to produce a full account of the transactions and all documents in relation to the Macquarie Share Portfolio Account”.

5. [76]

   In relation to the second set of documents in question, namely those that must have lain behind the 62 Manual Journal entries in the Rapson Spreadsheet, the primary judge’s holding has been set out at [43] above. Mr Rapson must have drawn upon information from some other documentary source to make those entries and, as the primary judge observed, that view of the matter was confirmed by the discrete references comprised of a hashtag and a reference number in the Rapson Spreadsheet. If Mr Rapson had additional documents, they were necessarily in the custody, power or control of the Appellants.

Ground 5

1. [77]

   Ground 5 simply asserted that “the evidence was insufficient to prove the Findings beyond a reasonable doubt.” As with a number of other grounds, expressed at this extreme level of generality, no attempt was made in the Appellants’ written submissions in chief or in reply to respond to, elaborate or give any content to this ground. The only submission made which may have been intended to relate to this ground was that relating to the email referred to at [23] above from one of the Appellants which stated that “I only have one Macquarie account and that is the one John sent to you.” Mr Allen submitted that this email raised a reasonable doubt as to whether other documents in relation to the Macquarie Share Account existed or were in the Appellants’ possession, custody or control. I do not accept that submission. First, the assertion was not able to be tested as none of the Appellants gave evidence. Second, the email said nothing as to the other two Appellants. Third, the reasons set out in [73]-[75] above fly in the face of the Appellants’ submissions.

2. [78]

   Appeal ground 5 fails.

Ground 6

1. [79]

   This ground was that the primary judge erred in making the Findings when they were not expressed in the Statement of Charge relating to Hallen J’s orders. As elaborated orally, it became clear that what was intended by this ground was the fact that the primary judge’s form of orders reproduced at [49] above did not precisely mirror the actual charges made against the Appellants.

2. [80]

   In relation to the Macquarie Share Account, her Honour’s order was that each Appellant was in contempt of Court by failing to comply with orders made by Hallen J on 24 June 2020 by:

3. [81]

   To the extent that Hallen J imposed an obligation to provide “a complete form of accounts” and the primary judge used the expression “a full account of” in orders 1(a), 3(a) and 5(a), I do not discern any material difference in meaning.

4. [82]

   Mr Allen also submitted that the primary judge’s orders presupposed that the Executors were obliged to produce “all documents in relation to” the Macquarie Share Account (which they had failed to do) whereas sub-paragraph 11(d) of the Statement of Charge relating to Hallen J’s orders only asserted that “no account statements have been produced to provide a review of the transactions affecting that account as required by Order 4.” This submission was technically correct but the substance of her Honour’s finding was also correct, as I have found in rejecting appeal ground 3(a).

5. [83]

   To the extent that the form of order in 1(a), 3(a) and 5(a) was overbroad insofar as it referred to “all documents in relation to the Macquarie Share Portfolio Account XXXX 9329 (Macquarie Share Account)” rather than “the Macquarie Share Portfolio Account statements”, that drafting error may be readily rectified by this Court, exercising its power under s 75A(10) of the Supreme Court Act.

6. [84]

   Turning to the primary judge’s order 1(b) (and similarly expressed orders 3(b) and 5(b)), her Honour’s order was that the Appellants were in contempt by failing to comply with Hallen J’s orders by:

7. [85]

   Mr Allen pointed to what he said was a disjunction between sub-paragraphs 11(i) and (j) of the Statement of Charge, which did not in terms refer to the orders of Hallen J requiring the production of documents, and the terms of the primary judge’s orders which were to the effect that the Appellants were in contempt because they had failed to produce documents. Sub-paragraph 11(i) of the Statement of Charge stated that “[n]o documents supporting those 62 journal entries have been provided as required by [Hallen J’s] Orders 1(d) and (e).”

8. [86]

   Mr Allen’s point in relation to Hallen J’s orders 1(d) and (e) was that they called for a:

9. [87]

   It is correct that orders 1(d) and (e) did not in terms require the production of documents but there is a well-established line of authority, referred to by the primary judge at [100] of Goldspring (No 2), that a party that is ordered to provide an account would usually be required to show each receipt and payment, with vouchers such as supporting records and verification on affidavit. Her Honour referred to Torlonia v Wright [2016] NSWSC 1139 at [23] and [65] and Hancock v Reinhart [2015] NSWSC 646 at [353] and [383]. Reference may also be made to the decision of White J (as his Honour then was) in Ford v Princehorn [2012] NSWSC 1165 who, at [31], made reference to R Geddes, C Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1st ed, 1996, LBC Information Services) at [85.02], quoting H Ford and W Lee, Principles of the Law of Trust (3rd ed, 1995, Law Book Co.) at [93.10] as follows:

10. [88]

    It follows, in my view, that orders 1(d) and (e) made by Hallen J (including their chapeau) did require the production of documents supporting the 62 Manual Journal line entries in the Rapson Spreadsheet, and that there was no disconformity between the primary judge’s orders 1(b), 3(b) and 5(b) and the Statement of Charge relating to Hallen J’s orders in that respect.

11. [89]

    Similar reasoning applies when one has regard to sub-paragraph 11(j) of the Statement of Charge but the position is perhaps even clearer in that 11(j) refers to the fact that:

12. [90]

    The reference to “the Folder” is plainly a reference to the fourth of Hallen J’s orders of 24 June 2020 which expressly referred to the production of documents. Although her Honour did not accept that there were necessarily any bank accounts in existence “disclosing the account into which those amounts were deposited” (see sub-subparagraph ii of 11(j)), her Honour upheld the charge in relation to sub-subparagraphs i and iii, and so much was reflected in her Honour’s orders 1(b), 3(b) and 5(b).

13. [91]

    Save for the minor matter referred to in [83] which will be reflected in the orders which I propose, I would dismiss appeal ground 6.

14. [92]

    It also follows that, because in substance the appeal has failed, there is no occasion to revisit the costs orders made by the primary judge.

Orders

1. [93]

   For the above reasons, I order that:

   1. (1)

      Time for filing a Notice of Appeal be extended to 7 March 2024.

   2. (2)

      Vary orders 1(a), 3(a) and 5(a) of the orders of Henry J made on 29 January 2024 as follows:

   3. (3)

      The appeal be dismissed with costs.

2. [94]

   LEEMING JA: I agree with Bell CJ.

3. [95]

   HARRISON JA: I agree with the Chief Justice.