ALLEN -v- MILANOVA [2026] WASC 334

[2026] WASC 334 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : ALLEN -v- MILANOVA [2026] WASC 334 CORAM : MASTER RUSSELL HEARD : 13 AUGUST 2026 DELIVERED : 13 AUGUST 2026 FILE NO/S : CIV 1671 of 2026 BETWEEN : IAN RICHARD ALLEN as executor of the estate of MARGARET HELEN JOHNSON Plaintiff AND VESNA MILANOVA Defendant Catchwords: Administration of estates - Trustees Act 1962 (WA) s 64 - Application for orders that potential claim against estate be barred and executor may distribute estate without regard to such claim - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 66 r 9 Trustees Act 1962 (WA) s 64, s 64(1) s 64(2), s 64(3) Result: Application granted -- 1 of 10 -- [2026] WASC 334 Page 2 Category: B Representation: Counsel: Plaintiff : R L Conder Defendant : No appearance Solicitors: Plaintiff : Cullen Macleod Lawyers Defendant : No appearance Case(s) referred to in decision(s): Nordeck v NSW Trustee and Guardian [2026] WASC 19 Ryan Michael Partington as executor of the will of Pamela Ann Lang v Robyn Peta Lang as trustee for Lang Family Trust [2025] WASC 178 The Public Trustee as Administrator of the Estate of Stanimirovic v Cenin (Unreported, WASC, Library No 990177, 18 March 1999) Videnovic v Todorovic [2023] NSWSC 242 -- 2 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 3 MASTER RUSSELL: Introduction 1 This proceeding concerns the estate of the late Margaret Helen Johnson (Estate), who died on 15 November 2022 leaving a will dated 10 September 2015 (Will). 2 The plaintiff, Ian Richard Allen, is the deceased's cousin and was appointed as executor of the Estate (Executor) by the Will. A grant of probate was issued to him on 21 April 2023. 3 The defendant, Vesna Milanova (referred to in the Will as Vesna Millanova) was a friend of the deceased. By the terms of the Will, the deceased gave $10,000 to the defendant if she survived the deceased. 4 The Executor gave the defendant a cheque for $10,000 in respect of the bequest after the funeral of the deceased's husband on 1 February 2024. At that time, the defendant said to the Executor that she had given some of her jewellery and personal effects to the deceased and her husband to look after for her years earlier, which the defendant would like back. 5 The Executor was unable to find anything in the deceased's possessions that matched the description given to him by the defendant. Efforts to contact the defendant and requests made by the Executor and his solicitors for the defendant to contact them in relation to her claim have gone unanswered. 6 By originating summons filed on 22 May 2026 (Application), the Executor seeks orders pursuant to s 64(3) of the Trustees Act 1962 (WA) barring the defendant from making any claim in respect of any jewellery and personal effects against the Estate, so that the Executor may proceed to finalise the administration of the Estate. 7 In support of the Application, the Executor relies on an outline of submissions filed on 4 August 2026, his affidavit sworn on 19 May 2026 (Allen Affidavit), and an affidavit of service of Maurine Eugene Frichot sworn on 15 June 2026 (Service Affidavit), which verifies that the defendant has been served with and is on notice of the Application. She has not entered an appearance. 8 I heard the Application on 13 August 2026. I was satisfied that the barring order sought pursuant to s 64(3) of the Trustees Act should be made together with an order that the Executor be at liberty to -- 3 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 4 administer and distribute the Estate without regard to any claim against the Estate by the defendant in respect of any items of jewellery or personal effects allegedly provided by the defendant to the deceased during her lifetime. I also made orders as to costs, as sought by the Executor. 9 These are my reasons for my decision and the orders made. Section 64 of the Trustees Act 1962 (WA) 10 I outlined the principles that apply to the exercise of the court's power and discretion under s 64 of the Trustees Act in Nordeck v NSW Trustee and Guardian,1 which I repeat for ease of reference, as follows: 11 Section 64 of the Trustees Act provides, relevantly: 64. Claims etc., procedures for barring (1) Where a trustee wishes to reject a claim that has been made, or that he has reason to believe may be made – (a) to or against the estate or property that he is administering; or (b) against the trustee personally, by reason of his being under any liability in respect of which he is entitled to reimburse himself out of the estate or property that he is administering, the trustee may serve upon the claimant or the person who may become a claimant a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence. (2) At the expiration of the period stipulated in a notice served under subsection (1), the trustee may apply to the Court for an order under subsection (3), and shall serve a copy of the application on the person concerned. (3) Where, on the hearing of an application made under subsection (2), the person concerned does not satisfy the Court that he has commenced proceedings and is prosecuting them with all due diligence, the Court may make an order – 1 Nordeck v NSW Trustee and Guardian [2026] WASC 19 [27] - [31]. -- 4 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 5 (a) extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and (b) imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as the Court thinks fit. … 12 Section 67(1) of the Trustees Act provides, relevantly, that a notice under s 64 may be served by delivering it to the person for whom it is intended or by sending it by prepaid registered letter to the person's usual or last known place of abode or business, or such other manner as directed by an order of the court. Where a notice is sent by post, it is deemed to have been delivered in the ordinary course of post.2 13 Relevantly, the term 'trustee' includes an executor of an estate.3 As such, the Executor has standing to apply for an order under s 64 of the Trustees Act. For the court's jurisdiction to make such an order to be enlivened, the executor must first have given notice to the claimant or potential claimant, pursuant to s 64(1), calling on them to take proceedings within three months of service of the notice and to prosecute such proceedings with due diligence. 14 Once served with a notice under s 64 of the Trustees Act, the burden is on the claimant to commence proceedings within three months of service of the notice. If they do not, even though the executor must satisfy the court that a barring order should be made, the claimant bears the onus of demonstrating good reason why they have not commenced proceedings or, if applicable, prosecuted any proceedings commenced with due diligence.4 15 The court retains a discretion as to whether to bar a claim. It is not bound to do so if proceedings have not been commenced within three months of service of a notice under s 64(1) of the Trustees Act, or proceedings have been commenced and are not being prosecuted with all due diligence. As provided in s 64(3), where, on the hearing of an application made under s 64(2), the claimant does not satisfy the court 2 Trustees Act 1962 (WA) s 67(2). 3 See Trustees Act 1962 (WA) s 6 (definition of 'trust' and 'trustee') which includes a personal representative. 4 See The Public Trustee as Administrator of the Estate of Stanimirovic v Cenin (Unreported, WASC, Library No 990177, 18 March 1999) (McKechnie J); Ryan Michael Partington as executor of the will of Pamela Ann Lang v Robyn Peta Lang as trustee for Lang Family Trust [2025] WASC 178 (Forrester J). See also Videnovic v Todorovic [2023] NSWSC 242 [140(j)] (Hallen J), which concerned Probate and Administration Act 1898 (NSW) s 93, which is in substantially the same terms as Trustees Act (WA) s 64. -- 5 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 6 that they have commenced proceedings and is prosecuting them with all due diligence, the court may make an order extending the period, barring the claim or enabling the trust property to be dealt with without regard to the claim. The court may also impose such conditions and give such directions, including as to costs, as it thinks fit. Relevant facts 16 The following relevant, uncontested facts are derived from the Allen Affidavit. 17 The deceased died on 15 November 2022,5 leaving a Will,6 by which the Executor was appointed. A grant of probate was issued to him on 21 April 2023.7 18 By the terms of the Will, the deceased gave $10,000 to the defendant if she survived the deceased.8 19 The Executor personally handed the defendant a cheque for $10,000 in respect of the bequest, after the funeral of the deceased's husband on 1 February 2024. At that time, the defendant said to the Executor that she had given some of her jewellery and personal effects to the deceased and her husband to look after for her years earlier, which the defendant would like back. The Executor asked the defendant for a list and any photographs of the jewellery. The defendant said that she did not have a list or any photographs, she just wrapped it up and put it in a small bag and gave it to the deceased and the deceased's husband.9 20 The Executor deposes in the Allen Affidavit to the attempts he has made to identify and locate the jewellery described by the defendant and to contact the defendant. They are set out in the outline of submissions. 21 In essence, the Executor obtained physical possession of the deceased's jewellery from the deceased's husband and daughter by early 2023. Following the defendant's claim, he inspected the jewellery and could not find any items matching the defendant's description. In July 2025, he conducted a formal review of all of the Estate's jewellery, including items stored in a secure bank vault, in the presence of the 5 Allen Affidavit [5]. 6 Allen Affidavit, 'IRA-1', pages 6 - 31 (Will). 7 Allen Affidavit [6], 'IRA-1'. 8 Will cl 8.5. 9 Allen Affidavit [8]. -- 6 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 7 deceased's son and the son's wife.10 Between February 2024 and July 2025, the Executor attempted to contact the defendant by telephone, text message and in person to clarify her claim. The defendant did not respond to those attempts.11 22 On 2 October 2025, the Executor's solicitors gave notice to the defendant, on the Executor's behalf, pursuant to s 64(1) of the Trustees Act (s 64 Notice). The s 64 Notice was served on the defendant by registered post and personally, and required her, within three months of the date of service of the s 64 Notice:12 (a) to take legal proceedings to enforce her claim relating to the jewellery against the Estate and to prosecute such proceedings with all due diligence; (b) failing which, the Executor may apply for an order under s 64(2) of the Trustees Act barring her claim and allowing the Executor to distribute the Estate without regard to the claim. 23 No proceedings were commenced by the defendant in relation to the Estate within three months of service of the s 64 Notice, or at all.13 The Executor has not received any communication from the defendant.14 24 The Executor wishes to finally distribute the Estate, including the deceased's jewellery, in accordance with the Will, and seeks the orders so that he may do so without regard to the defendant's claim.15 Determination 25 Having considered the evidence filed in support of the Application, I am satisfied that the Executor has standing to bring the Application as executor of the Estate, having given notice to the defendant under s 64(1) of the Trustees Act, and no proceedings having been commenced by the defendant in relation to her claim or potential claim in respect of items of jewellery or personal effects. 26 The defendant has been served with the Application and is on notice of the orders sought.16 She has not entered an appearance or 10 Allen Affidavit [9] - [10], [13]. 11 Allen Affidavit [11] - [12], [14] - [15], 'IRA-2', 'IRA-3'. 12 Allen Affidavit [16] - [17], 'IRA-4', 'IRA-5'. 13 Allen Affidavit [18]. 14 Allen Affidavit [19]. 15 Allen Affidavit [20]. -- 7 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 8 taken any part in the Application. There is no evidence before the court as to why an order barring the defendant from making a claim against the Estate should not be made. 27 I am satisfied that the court's power under s 64 of the Trustees Act is enlivened in the circumstances and that I should exercise my discretion to make the orders sought. 28 The Executor has served notice on the defendant pursuant to s 64(1)(a) of the Trustees Act requiring her to commence legal proceedings concerning any claim against the Estate within three months of service of the s 64 Notice. 29 The defendant gave notice of her claim or potential claim to the Executor in February 2024, more than two years ago. The defendant has been given the opportunity to justify her claim and to commence any proceedings and has failed to do so. In the circumstances, it is appropriate, in my view, to make an order barring any claim against the Estate by the defendant in respect of any jewellery or personal effects, so that the administration of the Estate may be finalised in accordance with the terms of the Will. Costs 30 The Executor also sought an order that the defendant pay the costs of the Application, to be taxed if not agreed. A further order was sought that, to the extent his costs are not recovered from or paid by the defendant, the Executor be entitled to be indemnified for such costs out of the assets of the Estate, pursuant to cl 19.3 of the Will and O 66 r 9(2) of the Rules of the Supreme Court 1971 (WA) (RSC). 31 The Executor submitted, in essence, that costs should follow the event and the defendant should pay his costs of the Application because the defendant's inaction has caused the Executor to incur the expense of bringing the Application. 32 I am satisfied that the defendant should pay the Executor's costs of the Application. The defendant was given the opportunity to verify her claim and was put on notice that if she did not commence proceedings within three months of being served with the s 64 Notice, the Application would be made. The defendant has not verified her claim or commenced any proceedings, and the Executor has been put to the expense of commencing and pursuing the Application. 16 Service Affidavit. -- 8 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 9 33 The Executor was, in my view, entitled to seek the barring orders in relation to the defendant's claim. I accept the submissions made on behalf of the Executor, that it was necessary to resolve the administrative uncertainty in respect of the defendant's claim in respect of the jewellery in order to finalise the administration of the Estate and so that the Executor could do so without fear of personal liability or risk of exposure to untried demands. 34 The Executor is, in my view, entitled to an order that his costs of the Application be paid by the defendant. 35 In relation to the further order sought, cl 19.3 of the Will provides that all expenses incurred by the Executor in connection with the administration of the Estate are to be paid or reimbursed to the Executor from the Estate.17 36 Relevantly, RSC O 66 r 9 provides: Order 66 – Costs … 9. Restriction of discretion to order costs in some cases … (2) Where a person is or has been a party to any proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative or the mortgaged property, as the case may be; and the Court may otherwise order only on the ground that the trustee, personal representative or mortgagee has acted unreasonably, or in the case of a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund. 37 Having regard to the terms of the Will and RSC O 66 r 9(2), it is appropriate to make the further order sought in relation to costs, to the effect that the Executor be indemnified by the Estate in respect of any costs that are not recovered from or paid by the defendant. 17 Will cl 19.3. -- 9 of 10 -- [2026] WASC 334 MASTER RUSSELL Page 10 Conclusion and orders 38 For these reasons, I allowed the Application and made the following orders: 1. Pursuant to s 64(3) of the Trustees Act 1962 (WA): (a) the defendant is barred from making or prosecuting any claim against the plaintiff as executor of the estate of Margaret Helen Johnson deceased (Estate), or against the Estate or the property of the Estate, in respect of any items of jewellery or personal effects allegedly provided by the defendant to the deceased during the deceased's lifetime or held on trust or otherwise for the defendant by the deceased; and (b) the plaintiff as executor of the Estate is at liberty to finalise the administration of the Estate and distribute the Estate without regard to any claim or assertion of ownership by the defendant in respect of any jewellery or personal effects. 2. The defendant is to pay the plaintiff's costs of the Application, to be taxed if not agreed. 3. To the extent that the plaintiff's costs of the Application are not recovered from or paid by the defendant, the plaintiff is entitled to be indemnified for such costs out of the assets of the Estate. 4. A copy of these orders is to be served on the defendant by ordinary pre-paid post to [redacted]. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 13 AUGUST 2026 -- 10 of 10 --