JANSSEN AS ADMINISTRATOR OF THE ESTATE OF DR JÖRG DIETER KRONE [2026] WASC 215

[2026] WASC 215 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : JANSSEN AS ADMINISTRATOR OF THE ESTATE OF DR JÖRG DIETER KRONE [No 2] [2026] WASC 215 CORAM : LUNDBERG J HEARD : 28 MAY 2026 DELIVERED : 2 JUNE 2026 FILE NO/S : CIV 1837 of 2025 EX PARTE PROFESSOR DR GERHARD JANSSEN AS ADMINISTRATOR OF THE ESTATE OF DR JÖRG DIETER KRONE Plaintiff Catchwords: Estates - Application by administrator of estate for judicial advice that administrator is justified in settling proceedings in terms set out in the Deed of Settlement and Release - Relief sought pursuant to s 92 of the Trustees Act 1962 (WA) - Appropriate that advice be given - Turns on own facts Legislation: Trustees Act 1962 (WA), s 92 Result: Judicial advice given -- 1 of 10 -- [2026] WASC 215 Page 2 Category: B Representation: Counsel: Plaintiff : C Wren Solicitors: Plaintiff : Gilbert + Tobin Case(s) referred to in decision(s): Equity Trustees Wealth Services Limited in its Capacity as trustee for the Noongar Charitable Trust v The Attorney General of Western Australia [2024] WASC 324 Janssen as Administrator of the Estate of Dr Jörg Dieter Krone [2026] WASC 23 Jeffery Laurence Herbert as trustee for The Blenkinsop Family Trust as trustee for The Blenkinsop Family Trust No 2 v Blenkinsop [2018] WASC 369 -- 2 of 10 -- [2026] WASC 215 LUNDBERG J Page 3 LUNDBERG J: Introduction 1 These reasons concern the further application made by the Administrator, pursuant to s 92 of the Trustees Act, seeking a direction that the Administrator is justified in settling the claims the subject of the Estate Proceeding and the Counterclaim. The background to the application can be found in the court's earlier reasons which were published on 9 February 2026.1 2 I will employ within these reasons the definitions which I used in the earlier reasons. 3 In effect, the Administrator sought the court's advice in relation to the exercise of his power to compromise a claim for equitable compensation brought against him as administrator of the Estate, and to compromise a claim for repayment of a loan brought by him as the administrator of the Estate. 4 I accept that the decision whether to compromise a claim relating to trust property raises questions respecting the management or administration of trust property and falls within the scope of s 92. 5 The further application was heard by the court on 28 May 2026, at which hearing counsel for the Administrator explained the developments in the matter since the hearing before me in February, and outlined the basis on which the relief was sought. Counsel also relied on the detailed written submissions which had been filed on 8 May 2026. 6 At the conclusion of the hearing, I was satisfied that the judicial advice should be given and the court accordingly made the orders which were sought (set out at [43] below). It was appropriate for the court to provide the judicial advice sought, and make those orders, for the brief reasons which now follow. 7 In order to preserve the confidentiality of the settlement terms between the parties, and bearing in mind confidentiality orders have previously been made in these proceedings, it will be necessary to refer to certain aspects of the evidence in general terms only. 1 Janssen as Administrator of the Estate of Dr Jörg Dieter Krone [2026] WASC 23. -- 3 of 10 -- [2026] WASC 215 LUNDBERG J Page 4 Background to the further application 8 On 9 February 2026, the court made orders pursuant to s 92 of the Trustees Act to the effect that the Administrator was justified in: (a) defending the claims pleaded against him in the Estate Proceeding (which is CIV 1418 of 2025), brought by Mr Bywaters against both the Administrator and Mr Iannaccone; and (b) commencing a Counterclaim (or fresh District Court proceedings) to recover $140,000 plus interest and costs from Mr Bywaters pursuant to an alleged loan agreement dated 2 December 2022. 9 By order 4 of the orders made on 9 February 2026 the court adjourned the application sine die to facilitate any further application for directions. 10 The present application was made pursuant to that order, following further steps in the litigation (including the filing of a counterclaim against Mr Bywaters in the Estate Proceeding) and consequent upon the settlement of the disputes by the parties in March and April 2026. 11 The Administrator filed a minute of proposed orders dated 29 April 2026 seeking the following orders by way of further directions: (a) a direction that the Administrator is justified in settling the claims the subject of the Estate Proceeding and the Counterclaim on the terms set out at Annexure GJ-41 of the affidavit of Dr Janssen sworn 29 April 2026, which is the deed of settlement and release executed by the parties on 14 April 2026 (Settlement Deed); and (b) an order that the Administrator's costs of this further application be paid out of the Estate on an indemnity basis. 12 To briefly explain the settlement, I note the parties attended a mediation on 23 March 2026 and reached an in-principle agreement. The agreement was subsequently formalised in the Settlement Deed. The parties to the Settlement Deed are Mr Bywaters, Mr Guy, the Administrator and Mr Iannaccone. -- 4 of 10 -- [2026] WASC 215 LUNDBERG J Page 5 13 Mr Iannaccone was the de facto partner of the deceased. Mr Guy is the de facto partner of Mr Bywaters. Mr Guy was not a party to the proceedings in this court. 14 Following the settlement, on 15 April 2026, his Honour Justice Howard made orders vacating the trial dates listed for April 2026 and adjourned the matter to a directions hearing on 21 July 2026. 15 Counsel for the appellant navigated the court through the terms of the Settlement Deed at the hearing last week. The terms of the Settlement Deed are confidential, but the Administrator is entitled to disclose them to the court for the purposes of this application (see cl 9.2(a)). The settlement is conditional upon the Administrator obtaining the judicial directions which are now sought (see cl 2.1). 16 The beneficiaries of the Estate (who reside in Italy and Germany, and are all adults) have been served with this application and the supporting papers. The beneficiaries did not seek to be heard on this application. 17 At the hearing of the application, counsel for the Administrator relied upon the further affidavit of the Administrator sworn on 29 April 2026, as well as two of the affidavits which had been read at the first hearing in February 2026. I refer to the affidavit of the Administrator sworn on 28 July 2025 and the affidavit of Ms Lukic sworn 16 January 2026. Relevant principles 18 The present application for judicial advice is made under s 92 of the Trustees Act which permits a trustee to seek the court's opinion, direction or advice on questions respecting the management or administration of trust property. 19 The proceeding is ex parte and summary in nature. 20 I set out the principles applicable to the exercise of the power in s 92 in the earlier reasons published on 9 February 2026 and need only make further brief references to the principles for the purposes of this further application. 21 In exercising its discretion to give directions regarding the compromise of litigation, the court will consider whether the trustee has taken proper advice and given full consideration to all relevant matters -- 5 of 10 -- [2026] WASC 215 LUNDBERG J Page 6 before arriving at a reasoned and appropriate decision.2 Relevant factors include: (a) the nature of the case and the issues raised; (b) the amounts involved, including likely costs; (c) whether the likely costs are proportionate to the issues and significance of the case; and (d) the consequences of the litigation to the parties. 22 In exercising its powers, the court will generally endeavour to act in the best interests of the beneficiaries of the relevant trust. 23 To be clear, the court is not assessing the correctness of the trustee's decision or the reasonableness of the settlement, but rather whether there has been 'sufficient consideration' to determine that the proposed settlement is justifiable as in the interest of all beneficiaries.3 Considering this question involves the court being satisfied that the trustee has sufficiently investigated the matter and has properly informed himself or herself, with the benefit of proper advice, of the prospects in the litigation.4 Disposition 24 The Administrator submitted that the court ought to give the directions sought to the effect that he is justified in settling the Estate Proceeding (including the Counterclaim) on the terms of the Settlement Deed. 25 The Administrator submitted that he had taken proper advice and given sufficient consideration to all relevant matters, before arriving at a reasoned and appropriate decision in relation to settlement being in the best interests of the beneficiaries of the Estate. 26 In my respectful view, the above submissions should be accepted, largely for the reasons detailed in the written submissions filed on behalf of the Administrator and in light of the matters to which the Administrator has deposed in his further affidavit. 2 Equity Trustees Wealth Services Limited in its Capacity as trustee for the Noongar Charitable Trust v The Attorney General of Western Australia [2024] WASC 324 [29] - [30] (Seaward J). 3 Jeffery Laurence Herbert as trustee for The Blenkinsop Family Trust as trustee for The Blenkinsop Family Trust No 2 v Blenkinsop [2018] WASC 369 [81] (Allanson J). 4 Blenkinsop [76] - [77] and [82]. -- 6 of 10 -- [2026] WASC 215 LUNDBERG J Page 7 27 It is apparent from the Administrator's affidavit, and the course of the proceedings conducted before his Honour Justice Howard, as appears from the documents filed in that proceeding, that the Administrator has been represented at all times by solicitors and counsel, and that proper consideration has been given to the legal and factual issues arising in the Estate Proceeding (including the Counterclaim) by those legal practitioners. 28 The proceedings in this court were progressed to a mediation at which all relevant parties were legally represented and, it would appear, a resolution was achieved which involves the customary give and take between responsible litigants, having assessed their respective prospects of success in the litigation and the associated considerations including the likely legal costs involved (including adverse costs orders). 29 The principal matters in dispute between the parties have been described in the court's earlier reasons. Both the Administrator and the deceased's de facto partner were faced with an equitable estoppel claim in the Estate Proceeding based on alleged oral promises as to the future ownership of the Burekup Property. I referred to the property's value in the earlier reasons as being $800,000, but an updated market value has since been prepared, showing an increased value. 30 The deceased's de facto partner is the registered proprietor of the Burekup Property, however, the plaintiff in the action, Mr Bywaters, pleaded the existence of a resulting trust given the purchase price for the property was funded by the deceased. 31 Among other matters, the Estate Proceeding also included a claim for equitable compensation solely against the Administrator, which claim was to be pressed at trial whether or not the alleged resulting trust was established. The Estate Proceeding, had it run to trial, would have involved a consideration of contested factual issues and some complex legal issues, as explained in the Administrator's submissions.5 The Administrator had, through his pleadings, erected several defences to the claims but it might ultimately be said that the outcome of the claims would depend to a large extent on the acceptance by the court of the oral evidence of both Mr Bywaters and Mr Guy. 32 As to the Counterclaim, that was commenced in February 2026 by the Administrator against Mr Bywaters, seeking to recover from him 5 Administrator's submissions [28] – [47]. -- 7 of 10 -- [2026] WASC 215 LUNDBERG J Page 8 the sum of $140,000, plus interest and costs, pursuant to a loan agreement between Mr Bywaters and the deceased. The loan agreement was admitted by Mr Bywaters in his pleadings. He did not dispute that he failed to repay the loan. However, he contended that the loan had been terminated by oral agreement, reached between him and the deceased in April 2023, some days before the deceased's death. The termination was said to be in recognition of the many years of service given by Mr Bywaters. 33 In his written submissions, the Administrator characterised his prospects on the Counterclaim as at least reasonably strong:6 This oral conversation is not alleged to have been witnessed by anyone else. Mr Bywaters has not pointed to any corroborating documentation. Mr Bywaters would have to prove that assertion through his oral evidence, which could be tested through cross-examination. Importantly, Mr Bywaters has not pleaded any (new) consideration that would support an agreement to release Mr Bywaters from his debt under the Loan Agreement. The Plaintiff maintains that the prospects of the Counterclaim are strong or, at least, reasonably strong. Nonetheless, Mr Bywaters could still seek to raise and plead an estoppel defence, which could raise at least triable issues. 34 The settlement reached by the Administrator, and the other parties, compromises the Estate Proceeding and the Counterclaim. The terms involve a modest amount being paid by the Estate to Mr Bywaters (and a larger amount being paid by the deceased's de facto partner), as well as the claim for the loan repayment from Mr Bywaters being foregone. On the other side of the ledger, the looming equitable compensation claim against the Estate has been compromised and the necessity for further legal costs to be incurred by the Estate in running the litigation has been obviated. The risk of adverse costs orders has been effectively addressed by the settlement as well. 35 The settlement has involved an element of compromise from all parties. 36 Relative to the overall value of the Estate, the settlement of the pending claims is quite modest, bearing in mind the Estate includes another valuable parcel of land, being the Tynedale Farm. The settlement also provides a certain outcome for the Estate (and the 6 Administrator's submissions [50] – [51]. -- 8 of 10 -- [2026] WASC 215 LUNDBERG J Page 9 beneficiaries) including comprehensive releases from Mr Bywaters and Mr Guy, as noted below. 37 The Administrator's affidavit verifies that he gave consideration to a range of matters in agreeing to the terms of the Settlement Deed, including: (a) legal advice and counsel's opinion obtained in relation to the proposed settlement, from the same junior counsel and solicitors engaged throughout the proceedings and at the mediation; (b) the scope of the issues in the Estate Proceeding and the Counterclaim as they stood at the time of settlement; (c) the potential outcomes of continuing the litigation, including the significant risk that the Estate's potential exposure could be up to $960,000 (the market value of the Burekup Property, which I accept is the usual measure of equitable compensation in an estoppel claim), plus interest and costs; (d) the terms of the Settlement Deed, including the mutual releases and discharges contained therein; (e) the Estate's financial position; and (f) the estimated costs of conducting a lengthy trial in this court, including approximately $100,000 in unrecoverable legal costs. 38 As noted above, the Settlement Deed, which is subject to the court giving the directions under s 92 sought by the Administrator, provides for two settlement sums to be paid to the solicitors acting for Mr Bywaters and Mr Guy, being Mills Oakley. The sums are to be paid by both the Administrator (from the funds of the Estate) and by Mr Iannaccone, with the latter being responsible for the larger proportion of the overall settlement sum. 39 The Settlement Deed also deals with the resolution of caveat proceedings which do not involve the Estate or the Administrator, and which I need not address in any detail. 40 By the terms of the Settlement Deed, once the deed becomes effective (following the giving of judicial advice pursuant to s 92) both Mr Bywaters and Mr Guy will give broad releases and discharges to the Administrator (including in his personal capacity) and to any successor administrator, executor or personal representative of the Estate, in -- 9 of 10 -- [2026] WASC 215 LUNDBERG J Page 10 relation to the 'Claims'. The Settlement Deed defines the term 'Claims' using broad language which will provide the Estate and the Administrator with future protection against any attempt to relitigate the underlying dispute. 41 The releases and discharges are accompanied by a clause which operates to bar future proceedings by any of the parties as well as covenants not to sue. 42 Given the foregoing matters, I was of the view at the conclusion of the hearing of the application that the Administrator was, and is, justified in settling the claims within the Estate Proceeding and the Counterclaim, on the terms proposed. Conclusion and orders 43 For the foregoing reasons, I considered it appropriate to make the orders sought by the Administrator pursuant to s 92 of the Trustees Act, in the following terms: 1. Pursuant to s 92 of the Trustees Act 1962 (WA), the Plaintiff, Professor Dr Gerhard Janssen (Dr Janssen) in his capacity as Administrator of the Estate of the late Dr Jörg Dieter Krone (the Estate), is justified in settling the claims the subject of Supreme Court of WA proceeding CIV 1418 of 2025 (the Estate Proceeding) and the counterclaim made in the Estate Proceeding on the terms set out at Annexure GJ-41 of the affidavit of Dr Janssen sworn on 29 April 2026. 2. Dr Janssen’s costs of this application shall be paid out of the Estate on an indemnity basis. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LM Associate to the Honourable Justice Lundberg 2 JUNE 2026 -- 10 of 10 --