Cuplovic v Lydia Sacilotto (as Executor of the Estate of Giuseppe Vallelonga, Dec)

[2001] WASC 360

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   CUPLOVIC -v- LYDIA SACILOTTO (as Executor of the Estate of GIUSEPPE VALLELONGA, Dec) & ORS [2001] WASC 360

CORAM:   MASTER BREDMEYER

HEARD:   19 DECEMBER 2001

DELIVERED          :   21 DECEMBER 2001

FILE NO/S:   CIV 2424 of 2000

BETWEEN:   LUCIA CUPLOVIC

Plaintiff

AND

LYDIA SACILOTTO (as Executor of the Estate of GIUSEPPE VALLELONGA, Dec)
First Defendant

LYDIA SACILOTTO
Second Defendant

MARIA NAZARENA VALLELONGA
Third Defendant

ANTONIO VALLELONGA
Fourth Defendant

RITA VALLELONGA
Fifth Defendant

HARLEN VALLELONGA
Sixth Defendant

Catchwords:

Costs

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 WA

Result:

Application allowed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant             :     Mr R J Biddulph

Second Defendant         :     Mr R J Biddulph

Third Defendant           :     Mr D J Miller

Fourth Defendant          :     Mr D J Miller

Fifth Defendant            :     Mr N R Cogin

Sixth Defendant            :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant             :     Biddulph & Turley

Second Defendant         :     Biddulph & Turley

Third Defendant           :     Marks & Sands

Fourth Defendant          :     Marks & Sands

Fifth Defendant            :     Corsers

Sixth Defendant            :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This was an application by the plaintiff under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 WA for a better provision from her father's estate.  After a contested hearing I delivered oral reasons for my decision on 19 December 2001 which are available in transcript form.  I then made the following orders:

   (1)The Will of the deceased be varied by revoking clauses 2 to 8 thereof and substituting the following clause:

   2.Subject to the payment of my just debts and funeral expenses, I GIVE, DEVISE and BEQUEATH all my property, both real and personal, of whatsoever kind and wheresoever situated to my Trustee to be divided among my children as follows:

   (a)Lydia Sacilotto  40 per cent

   (b)Rita Vallelonga  40 per cent

   (c)Lucia Cuplovic  6.66 per cent

   (d)Maria Nazarena Vallelonga     6.66 per cent

   (e)Antonia Vallelonga                 6.66 per cent

   (2)A certified copy of this order is to be included in the probate and the first defendant do produce the grant to the Court for that purpose.

2. After hearing argument I reserved on the question of costs.  This is my reserved decision on costs.

3. I consider that the costs of each of the parties, on a party‑party basis should be taxed and paid out of the estate.  I consider that only one bill of costs should be presented for the first and second defendants, who were represented by the same solicitor, but those costs may exceed the maximum allowed under item 21 of the Supreme Court scale of costs.

4. I will explain my reasons for those orders.  The estate is a small one and I am concerned that the costs payable out of the estate should not be too great so as to deprive the minor beneficiaries of practically any benefit from the estate.  I am aware, for example, that the plaintiff who appeared before me unrepresented formerly engaged solicitors who prepared four substantive affidavits on her behalf; two from her and one from each of her two daughters.  A solicitor also attended on the status conferences.  The plaintiff says that she paid $19,036.90 to her former solicitors for this work.  I do not want to trespass on the Taxing Officer's preserve, but that seems an excessive amount.  Possibly she chose solicitors who charged too highly, but, whatever the reason, I would not like to see the estate reduced and the other beneficiaries of it suffer for the high fees charged by her solicitors.  I am aware that in this jurisdiction it is sometimes ordered that all the costs, on a solicitor-client basis be paid out of the estate, but, for the reasons just given, I do not consider that appropriate in this case.

5. Mr Biddulph, who appeared for both the first and second defendants, applied for a certificate for separate costs for each client.  The first defendant is Ms Lydia Sacilotto, as executor of the estate of the deceased, and the second defendant is the same person in her personal capacity.  Lydia was a principal beneficiary under the will.  I am not willing to grant that application in that form.  It is true that by representing Ms Sacilotto in those two capacities, her solicitor did extra work.  In his capacity as solicitor for the estate he prepared a statement of assets and liabilities and a list of expenses paid by Ms Sacilotto, which is really an expansion of the statement of assets and liabilities.  I consider he should be paid for this extra work and that is why I have lifted the scale for item 21.  I consider that he should, however, only prepare one bill of costs and that the Registrar on taxation should allow him costs for the work which he did in two capacities.  The major work he did, however, was done for Ms Sacilotto as the second defendant and, of course, he can only get one lot of costs for attending the hearing on 12 December.  That hearing took a day and I reserved my decision and an appearance was required on 19 December to receive the orally delivered judgment and to address on the orders.  All of the affidavits prepared, I consider, were prepared on behalf of the second defendant.  It is for the Taxing Officer to tax the legal costs in incurring these documents at the hearing and my lifting of the scale does not reflect my view that the scale item should be exceeded.  It may be exceeded but I leave that to the Taxing Officer.

6. I consider that the third and fourth defendants, who were minor beneficiaries, should receive their taxed costs paid out of the estate.  Mr Miller, who acted for them, did not appear at the hearing other than to be excused at the outset.  I consider that a wise and appropriate course which is often done in these cases.  These two defendants who received very minor gifts under the will, wanted the will to be affirmed and had nothing substantive to contribute to the main dispute which was between the plaintiff and the second and fifth defendants.

7. I also consider that the fifth defendant, Rita Vallelonga, should get her taxed costs paid out of the estate.  It was put to me by Mr Biddulph that she should be disallowed some costs after refusing an O 24A offer to compromise.  It is the practice of this Court not to keep those offers on the Court file.  Reference is made to the offer on the cover of the Court file but the document itself is kept off the file so that the Judge does not see it.  I needed to reserve to read that offer and consider its implications.  The offer is from the first and second defendants and is dated 7 June 2001 which is after all the affidavits were filed apart from a minor affidavit of Mr D Miller, the solicitor for the third and fourth defendants.  The offer was that after payment of each party's taxed costs out of the estate, the estate be divided as follows:

   33.5 per cent to Lydia;

   33.5 per cent to the fifth and sixth defendants jointly; and

   11 per cent to each of Lucia, Antonio and Rita.

8. I am told that the offer was accepted by all parties except Rita.  Rita, through her solicitors, Corsers, made a counter‑offer proposing that she receive 44 per cent, Lydia 23 per cent and that Lucia, Maria and Antonio receive 11 per cent each.  That offer was rejected by Lydia.  I consider there should be no reduction of Rita's costs because of these offers.  The O 24A offer, offered her a 33.5 per cent share in the net estate.  She has done better than that under my orders.  I gave her a 40 per cent share.

9. My orders will be:

   (3)The costs of all parties be taxed on a party‑party basis and be paid out of the estate;

   (4)That the costs of the first and second defendants be taxed in the one bill and the Registrar has a discretion to permit these costs to exceed the limit set by item 21 of the Supreme Court scale of costs.