D'Unienville v Sakalo - [2012] WASC 510

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: D'UNIENVILLE -v- SAKALO [2012] WASC 510

CORAM: EM HEENAN J

HEARD: 30 NOVEMBER 2012

DELIVERED : 30 NOVEMBER 2012

FILE NO/S: CIV 3168 of 2011

MATTER :The estate of LORELLE OLGA MARRIER D'UNIENVILLE, late of St Michael's Nursing Home, Walsley Street, North Perth in the State of Western Australia, Business Woman, deceased, intestate

BETWEEN: MARIETTE IRENE PAULE MARRIER D'UNIENVILLE
Plaintiff
AND
ALLA SAKALO
First Defendant
DAVID PAUL DONALDSON
First Second Defendant
ANDREW JAMES HARLER
Second Second Defendant
ANDREW JAMES HARLER
First Third Defendant
VALERIE JOAN SMITH
Second Third Defendant
JOY TAYLOR
Third Third Defendant
ROSS SIMEON SMITH
Fourth Third Defendant
SHENTON PARK DOG HOME
Fifth Third Defendant
CAT HAVEN
Sixth Third Defendant
ALEXANDER GEORGE VILLANOVA
Seventh Third Defendant
EDWARD ANTHONY VILLANOVA
Eighth Third Defendant
PAUL ARMSTRONG
Ninth Third Defendant
BERTRAM JAMES HARLER
Tenth Third Defendant
ALLA SAKALO
First Fourth Defendant
JOY TAYLOR
Second Fourth Defendant

FILE NO/S :CIV 1668 of 2011

BETWEEN :ANDREW JAMES HARLER
Plaintiff
AND
DR ALLA SAKALO
Defendant

Catchwords:

Case management - Related actions - Second action struck out - Writ stale - Defendant replaced by another administrator - No desire by plaintiff to renew writ or to substitute correct defendant - Action an obstacle to disposition of other action - Action dismissed

Legislation:

Nil

Result:

Action dismissed

Category: B

Representation:

CIV 3168 of 2011

Counsel:

Plaintiff:    Mr T R Stephenson
First Defendant          :    Mr D L Jones
First Second Defendant          :    Mr D Markovich
Second Second Defendant     :    Mr M F Holler
First Third Defendant          :    Mr M F Holler
Second Third Defendant     :        No appearance
Third Third Defendant          :    No appearance
Fourth Third Defendant         :        No appearance
Fifth Third Defendant          :    No appearance
Sixth Third Defendant          :    No appearance
Seventh Third Defendant         :        No appearance
Eighth Third Defendant          :    No appearance
Ninth Third Defendant          :    No appearance
Tenth Third Defendant          :    No appearance
First Fourth Defendant          :    Mr D L Jones
Second Fourth Defendant     :    No appearance

Solicitors:

Plaintiff:     K G Sorensen
First Defendant     :     Karp Steedman Ross-Adjie
First Second Defendant     :     Murfett Legal
Second Second Defendant :     Margaret River Law
First Third Defendant     :     Margaret River Law
Second Third Defendant     :    No appearance
Third Third Defendant     :     No appearance
Fourth Third Defendant     :    No appearance
Fifth Third Defendant     :     No appearance
Sixth Third Defendant     :     No appearance
Seventh Third Defendant     :    No appearance
Eighth Third Defendant     :     No appearance
Ninth Third Defendant     :     No appearance
Tenth Third Defendant     :     No appearance
First Fourth Defendant     :     Karp Steedman Ross-Adjie
Second Fourth Defendant   :     No appearance

CIV 1668 of 2011

Counsel:

Plaintiff: Mr M F Holler
Defendant: Mr D L Jones

Solicitors:

Plaintiff: Margaret River Law
Defendant: Karp Steedman Ross-Adjie

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

Nil

EM HEENAN J: In relation to action CIV 1668 of 2011, this is an action which was commenced by writ of summons issued on or about 15 April 2011, with nothing more than an indorsement of claim. It named as defendant Dr Alla Sakalo as administrator of the estate of Lorelle D'Unienville and it claimed that the plaintiff is entitled to the property located at 24 Rokeby Road, Subiaco, and being lot 10 on a particular diagram and certificate of title, as beneficiary of a constructive trust.
The plaintiff claimed a declaration that Mr Harler is the beneficial owner of the property; an order that the defendant transfer to him the property free from all encumbrances; alternatively, judgment against the defendant in the sum equivalent to the value of the property; damages or equitable compensation; an order that the judgment sum be a charge upon the estate of the late Lorelle D'Unienville; and interest on any monetary sum awarded at 6%; and costs.
The writ was served. An appearance was put in on behalf of the named Dr Sakalo on conditions. The matter came before a registrar, and on 17 May 2011, service of the writ was set aside and an order was made for the plaintiff to pay the defendant's costs.
Later, in January 2012, an affidavit of scripts of Dr Sakalo was filed. No statement of claim has ever been delivered. Since the commencement of this action, Dr Sakalo has ceased to be adminstratrix of the estate and a different adminstratrix, under a limited grant, was appointed by an order of this Court in September 2012, which was released to the parties in October of this year.
No step since then, nor any step before then, was taken by Mr Harler to substitute the newly-appointed adminstratrix as defendant, or to have any representative defendant or administrator ad litem appointed of this estate. The writ is now stale, and cannot be served unless it be renewed. The plaintiff by his counsel has stated that he does not wish to apply for a renewal of the writ. All the circumstances are, therefore, that this action is going nowhere, and that to avoid the Court's records being encumbered with cases which are asleep, it should be ended. But there is more to it than that. There is major litigation between these and other parties in CIV 3168 of 2011, which is an action in which the entire question of the testamentary disposition of the estate of the late Lorelle D'Unienville is at issue.
Various parties to that action (CIV 3168 of 2011) contend and contest questions of whether or not that testatrix died intestate; whether a will apparently made by her in 2006 is her last valid will and testament; or whether a will apparently made by her in 2007 is the last valid will and testament; and whether a telephone note made subsequently constitutes an informal will under pt X of the Wills Act, which should have the effect of either revoking any former will or the latter constituting a valid will disposing of the estate.
In those proceedings, Mr Harler, the plaintiff in the action with which I am presently dealing, is named in several capacities as a defendant. He is seeking to propound as the last effective valid testamentary disposition of the deceased the alleged 2007 will, which contains within it dispositions in favour of his children. It has been pointed out that the role of an executor to whom probate might be granted of the 2007 will, if valid, would be inconsistent with the claims which have been sought to be advanced by Mr Harler in this present action CIV 1668 of 2011. That puts him in a position of conflict, so that he could only obtain probate of that will, if indeed it be the last valid will of the deceased, if he were to elect in favour of the terms of the will and renounce all other claims, including the claim for estoppel foreshadowed in this present action CIV 1668 of 2011.
It is evident that Mr Harler has not been disposed to make any such renunciation or election, and that being the case, there may be a defence available to parties in the other action, CIV 3168 of 2011, that even if the 2007 will be the last valid and effective testament of the deceased, that Mr Harler should not be appointed executor, and that the position of personal representative should be left open, he being passed over in favour of some other eligible person entitled to seek a full grant of letters of administration of the will annexed. Those are issues which are likely to be resolved or at least to be raised in the other action CIV 3168 of 2011.
From this account of the position of the parties, it should be evident that the persistence of action CIV 1668 of 2011 by Mr Harler in any pending way is likely to be an embarrassment and a distraction to the resolution of the issues in CIV 3168 of 2011. As the plaintiff does not wish to pursue it and, as I have already said, because the writ is stale and no application has been made to renew it, it should not be allowed to cast any shadow or influence over the other proceedings.
Mr Harler has had more than sufficient opportunity to advance that action, and it is clear that he has not done so. It is even clearer from his counsel's submissions today that he has no immediate plans to do so. In the circumstances therefore, I consider that the action should be dismissed, and that an order should be made dismissing the action. The present defendant is no longer administrator of the estate of the deceased. Although a limited grant has been made appointing an adminstratrix there is no occasion for her to be substituted.
This order will not prevent a future claim being made by Mr Harler, but if that were to be done, he may be faced with discretionary defences of delay arising from the very leisurely way in which CIV 1668 of 2011 was conducted.
The order will be that that action be dismissed. The order for directions which I made in both actions on 17 October 2012, that the two actions should forthwith be managed together, will be varied, to take account of the fact that CIV 1668 of 2011 has now been dismissed.