Case Notes > Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 Kunc J

Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264 Kunc J

By Karen Gaston
Posted October 31, 2023


Conduct of an executor in failing to provide estate accounts sufficient to amount to contempt of court and to attract criminal sanctions


In this matter the executor:

  • evaded service of proceedings seeking that he render an account in an estate where the deceased had died in 2009 nearly 10 years before the proceedings were commenced (in late 2018);
  • failed to appear, including where there were orders in place for him to personally appear on at least 6 occasions;
  • failed to provide documents and affidavits, despite being directed to do so;
  • had a bench warrant issue for his arrest;
  • when advised of the bench warrant, failed to voluntarily surrender himself;
  • was arrested and then extradited from Victoria to New South Wales;
  • still failed to comply with orders directing him to provide an explanation of certain matters on oath even after his arrest.


Kunc J imposed a sentence of 12 months imprisonment which was to be wholly suspended if the executor complied with certain orders that had been made by the court. That is, the “contemnor” was given an opportunity to “purge his contempt” by complying with the orders.

However, in making that order, the following observations were made (at 1-2):

It should be observed at the outset that a significant feature of this matter was that Mr Whit’s conduct was integrally connected to his role as an executor. In addition to the need both to punish Mr Whit and compel his compliance with the orders of which he was in contempt, his sentence may serve as a salutary reminder of the importance the Court attaches to the proper discharge of an executor’s duties and to deter departure from the high standard of conduct which is expected of executors both under the general law and statute.

And further (at [70]):

Mr Whit sought to be appointed executor of the deceased’s estate. To be an executor is to hold an office (which in this context is a term of legal significance) which, although it might have its origin in a private instrument being a will, is given legal effect by an order of the Court and thereby is not just of a private character. It is a fiduciary position: both morally and legally a position of trust. It is not just a private function, but is a publicly recognised office which also fulfills a public interest to ensure the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.”

Read the decision here.

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