David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti

[2023] WASC 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DAVID ENZO GIOVANETTI as administrator of the estate of MARK ENRICO GIOVANETTI -v- GIOVANETTI [2023] WASC 201

CORAM:   ACTING MASTER MCDONALD

HEARD:   1 JUNE 2023

DELIVERED          :   1 JUNE 2023

PUBLISHED           :   9 JUNE 2023

FILE NO/S:   CIV 1131 of 2023

BETWEEN:   DAVID ENZO GIOVANETTI as administrator of the estate of MARK ENRICO GIOVANETTI

Plaintiff

AND

ANNE GIOVANETTI

First Defendant

PAUL VICTOR GIOVANETTI

Second Defendant

DAVID ENZO GIOVANETTI

Third Defendant

Catchwords:

Administration of estates - Missing beneficiary - Application for directions to distribute whole estate to remaining beneficiaries - Evidence of search - Benjamin orders - Advertising - Trustees Act 1962 (WA), s 66

Legislation:

Administration Act 1903 (WA) s 14
Trustees Act 1962 (WA) s 66, s 108

Result:

Advertising approved
Application granted
Costs be paid out of missing beneficiaries share

Category:    B

Representation:

Counsel:

Plaintiff	:	N Siegwart
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Birman & Ride
First Defendant	:	In Person
Second Defendant	:	In Person
Third Defendant	:	In Person

Cases referred to in decision:

Bickford v Benson [2015] WASC 161

Nolan v Nolan [2011] WASC 224

Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402

ACTING MASTER MCDONALD:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. This is a case of a missing beneficiary of the estate of the late Mark Enrico Giovanetti who died on about 21 October 2021, intestate.

2. Mark did not marry in his lifetime nor was he in a de facto relationship.  Mark did not have any children.  He was survived by three siblings, David Enzo Giovanetti, Anne Giovanetti and Paul Victor Giovanetti.  To avoid confusion caused by the shared surnames I have referred to each of the parties by their first name by which I intend no disrespect.

3. On 15 March 2022, a grant of administration was made to David.  The value of the estate for distribution is approximately $203,300, Paul being entitled to a third share.  David has nearly completed the administration of the estate but has been unable to contact or locate Paul to arrange for the distribution of his share.[1]

   [1] See Affidavit of David Enzo Giovanetti filed 9 February 2023 [3], [7], [8], 'DEG1', 'DEG2' (7), 'DEG3' (12).

Application

1. On 9 February 2023, David in his capacity as administrator of Mark's estate (the plaintiff), brought an application for directions pursuant to s 66 of the Trustees Act 1962 (WA). Anne, Paul and David in his capacity as a beneficiary of the estate, were named as the first, second and third defendants, respectively. The application was supported by two affidavits of David Enzo Giovannetti filed 9 February 2023 (First Giovanetti Affidavit) and 30 May 2023 (Second Giovanetti Affidavit), and affidavits of Clare Louisa Fielding filed 23 March 2023 (Fielding Affidavit), Nigel Jerome Siegwart filed 26 May 2023 (Siegwart Affidavit), and Christopher Paul Hansord filed 26 May 2023 (Hansord Affidavit).

2. The application was made in two stages: first, for orders that advertisements in specified terms be published in the Government Gazette (WA) and the West Australian Newspaper pursuant to s 66(2) of the Trustees Act; and second, for orders that the plaintiff be at liberty to distribute the portion of the estate due to Paul in equal portions to Anne and David as if Paul never existed pursuant to s 66(5) of the Trustees Act. 

3. On 23 March 2023, the Court directed advertising be carried out in prescribed terms pursuant to s 66(2) of the Trustees Act. There has been no response to that advertisement.[2]

   [2] Siegwart Affidavit [3].

4. The plaintiff now moves the Court to make orders pursuant to s 66(5) of the Trustees Act to provide for the distribution of the estate as if Paul never existed, the result being that the estate would be distributed equally between David and Anne.  Anne and David as first and third defendants filed a notice of intention to abide by the decision of the Court.

The Law

1. Section 14(1) of the Administration Act 1903 (WA), relevantly provides for the distribution of an intestate's estate as follows:

   Entitlements on intestacy

   (1)Subject to this section and section 15, where any person (in this section called the intestate) dies intestate as to all or any of his property, the property as to which he dies intestate (in this section called the intestate property) shall be distributed according to the entitlements set out in the following Table —

   Table

   If the intestate —

8. dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property;

1. By virtue of this provision, I am satisfied that the appropriate parties have been joined.  With the death of Mark's parents, the only persons entitled in distribution are the brothers and sister of Mark. 

2. The applicable law is s 66 of the Trustees Act.  The relevant parts state:

   66.Unknown beneficiaries, advertising for, distribution of shares of

   (1)Where any property is held by a trustee and the property or any part thereof cannot be distributed because the trustee does not know —

   (a)whether any person who is, or may be, entitled thereto is, or at any material date was, in existence; or

   (b)whether all or any of the persons who are members of any class that is or may be entitled thereto are, or at any material date were, in existence; or

   (c)whether any such person as is mentioned in paragraph (a) or (b) is alive or dead or where he is to be found,

   the trustee may publish such advertisements (whether in the State or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, being, in any case, not less than 2 months from the date on which the advertisement is published.

   (2)Where the trustee is in doubt as to what advertisements should be published under this section, he may apply to the Court for directions in that regard.

   …

   (5)Upon proof by affidavit of the circumstances, and of the inquiries that have been made, and of the results of the inquiries and advertisements, and of the claims of which the trustee has received notice, and of the notices that the trustee has given to claimants under subsection (3), and of the action (if any) that the claimants have taken to enforce their claims, the Court may order that the trustee be at liberty to distribute the property or part thereof, subject to such conditions as the Court may impose —

   (a)as if every person and every member of any class of person specified in the order (being all or any of the persons specified in the advertisements) is not in existence or never existed or has died before a date or event specified in the order; and

   (b)where as a consequence of the order it is not possible or practicable to determine whether or not any condition or requirement affecting a beneficial interest in the property or any part thereof has been complied with or fulfilled, as if that condition or requirement had or had not been complied with or fulfilled, as the Court may determine.

   (6)In making any order under subsection (5), the Court may —

   (a)disregard (without express reference thereto in the order) the claims of any persons who do not appear to the Court to be, or likely to be, any of the persons specified in the advertisements;

   (b)disregard (without express reference thereto in the order) the claim of any person to whom the trustee has given notice under subsection (3) and who has failed to take legal proceedings to enforce the claim or to prosecute any such proceedings with all due diligence;

   (c)exclude from the operation of the order any person to whom the trustee has not given notice under subsection (3) and who, in the opinion of the Court, may be one of the persons specified in the advertisements, or any person whom the Court considers should, for any reason, be excluded from the operation of the order;

   (d)provide that the order shall not be acted on for such period or except on such conditions as may be specified in the order or that the effect of the order shall during a period so specified be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein; and in the event of the Court exercising the jurisdiction conferred by this paragraph it may in the order direct that the order shall be of no effect in respect of any person specified therein in the event of that person instituting proceedings in the State to enforce his claim and serving the proceedings upon the trustee within such period as is specified in the order.

   ….

   (8)Where the Court makes an order under this section that the trustee may distribute any property or part thereof as if every person and every member of any class of persons specified in the order (not being a person expressly excluded from the operation of the order) is not in existence or never existed or has died before a date or event specified in the order, and the trustee distributes in accordance with the order, the trustee shall be exonerated from any further liability to any such person or to any member of any such class; but nothing in this section affects any remedy that any person may have against any person other than the trustee, including any right that he may have to follow the property and any money or property into which it is converted.

3. The history of s 66 of the Trustees Act was explained by Heenan J in Nolan v Nolan [2011] WASC 224 [24] ‑ [34]. I am also assisted by the summary of the law provided by Jenkins J in Bickford v Benson [2015] WASC 161 which I have replicated below and apply:[3]

   The order contemplated by s 66(5) of the Trustees Act is known as a Benjamin order, following the decision of Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. The jurisdiction to make a Benjamin order is not founded on proof that a beneficiary has died, but rather on the basis of the practical probabilities of the facts as known to the court at the time of making the order, see also: Re Green's Will Trusts; Fitzgerald-Hart v the Attorney-General [1985] 3 All ER 455 [462(e)], Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 [22]. The court does not require a declaration of death in order to make an order of this type Re Green's Will [462] ‑ [463], although that may be necessary in some circumstances: Lashko v Lashko [2011] WASC 214.

   A Benjamin order is not a positive declaration of rights, and it is made regardless of the fact that there may be some uncertainty relevant to the distribution as to the existence of one of the beneficiaries.  Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 [4], [6].

   [3] Bickford v Benson [13] - [14].

4. In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) at [65-18], the learned authors state:

   Distribution may be held up because the representatives cannot be sure who is entitled.  Thus a person's right to share in the estate may turn on the question whether another predeceased the testator, or predeceased him without issue, and it may be uncertain on the facts whether this happened.  In these circumstances, the representatives may apply to the court for a 'Benjamin' order, that is, an order permitting them to distribute the estate on the footing that certain events have or have not happened.  This relieves the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong.  Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate.  He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share.  (citations omitted)

5. In Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402, Richmond J held:[4]

   The size of the estate may be relevant to determining whether the making of further enquiries would be an unreasonable impost on the estate: The Estate of Janet Beris Jackwitz [2018] NSWSC 515 at [31] per Kunc J; Application by the NSW Trustee & Guardian (Estate of Edward Charles Turner) [2020] NSWSC 944 at [47] per Hallen J. 

   As mentioned above, all that is necessary for a Benjamin order is that the Court is satisfied that it is probable that the persons entitled under the Will of the Deceased have been ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence.

   [4] Re Application by Little (Estate of Bruce Frederick Little) [34] ‑ [35].

Evidence of search

1. Paul is about 60 years old.[5]  David last saw Paul in December 2002 at their late father's funeral.  At that time Paul did not have a spouse or partner, nor any children.[6]

   [5] First Giovanetti Affidavit [9].

   [6] First Giovanetti Affidavit [10].

2. Since Mark's death in October 2021, David deposes to having conducted a number of searches to locate Paul.[7]

   [7] First Giovanetti Affidavit [11].

3. In or about October 2021, David caused death and funeral notices for Mark to be published in The West Australian newspaper.  David did not receive any contact from Paul in relation to the notices and Paul did not attend Mark's funeral.[8]

   [8] First Giovanetti Affidavit [11.1].

4. Paul worked as a crane operator in Western Australia.  In about December 2021, David conducted an online search on the Department of Mines, Industry Regulation and Safety website and found that Paul's high risk work license expired on 30 June 2010.[9]

   [9] First Giovanetti Affidavit [11.2].

5. A private investigator was engaged to attempt to locate Paul.[10]  The investigations conducted by Pathfinder Investigations were unsuccessful in locating Paul or finding records that would give rise to further inquiry.[11]  Various images were found on social media for a 'Paul Victor Giovanetti Junior', which David deposes do not resemble Paul as he recalls.[12]

   [10] First Giovanetti Affidavit [11.4].

   [11] Fielding Affidavit [4], 'CLF1'.

   [12] Fielding Affidavit, CFL1; First Giovanetti Affidavit [11.4].

6. On or about December 2021, David found a mobile number for Paul in Mark's mobile phone.  David found the number had been disconnected when he attempted to call it.[13]

   [13] First Giovanetti Affidavit [11.5].

7. On 22 December 2022, David caused a notice to commemorate the 20^th anniversary of his father's death to be published in The West Australian newspaper alongside a photograph of his father.  David did not receive any contact from Paul following the publication of this notice.[14]

   [14] First Giovanetti Affidavit [11.6].

8. David caused his solicitors to write to Paul at the various addresses he had for Paul,[15] namely:

   (1)Paul's Applecross address as shown on the grant of probate for Paul's mother;[16]

(2)a PO Box in Morley, being the address for service shown on a certificate of title for a vacant block of land in Bremer Bay of which Paul is the registered proprietor;[17] and

(3)care of Australia Post, Bremer Bay.[18]

[15] First Giovanetti Affidavit [11.7].

[16] Second Giovanetti Affidavit [16.2.1].

[17] Second Giovanetti Affidavit [16.2.2]; Fielding Affidavit [5].

[18] Second Giovanetti Affidavit [16.2.3].

1. None of this correspondence has been successfully delivered to Paul with the letters to the Applecross and Morley addresses having been returned to the sender and the Bremer Bay correspondence remaining uncollected.[19]

   [19] Second Giovanetti Affidavit [17].

2. Further, the Shire of Jerramungup advised they had been sending rates notices to a PO Box in Mount Lawley.[20]  Correspondence was sent to that address by the plaintiff's solicitors in October 2022 and on 23 March 2023 to which no response has been received.[21]

   [20] Fielding Affidavit 'CLF1'.

   [21] Fielding Affidavit [6] ‑ [7], 'CLF4'; Siegwart Affidavit [5] ‑ [6].

3. Paul was a co-executor of his mother's estate.  Probate was granted on 13 February 2015.[22]  On 28 September 2022, Clare Fielding, a legal representative of the plaintiff's solicitor, contacted Mr George Georgiou who had previously acted for Paul.  Mr Georgiou advised that the only address he had for Paul was the Applecross address.[23]

   [22] First Giovanetti Affidavit [11.3].

   [23] First Giovanetti Affidavit [11.3]; Fielding Affidavit [5].

4. On 24 January 2023, the solicitors for the plaintiff conducted a search of the electoral roll at the office of the Electoral Commission in Perth and did not find any results for Paul.[24]

   [24] First Giovanetti Affidavit [13]; Second Giovanetti Affidavit [16.1]; Hansord Affidavit [2].

5. Additional social media searches have not yielded any results.[25]

   [25] Siegwart Affidavit [8].

Disposition

1. Relying on s 66(2) of the Trustees Act, the plaintiff first applied to the Court for a direction to place the following advertisement in the Government Gazette (WA) and the West Australian Newspaper:[26]

   David Enzo Giovanetti is the administrator of the Estate of Mark Enrico Giovanetti who died in October 2021. Mark's brother, Paul Victor Giovanetti, is a beneficiary of the Estate under the Administration Act 1903 (WA). The administrator invites contact from Paul Giovanetti and, if he is deceased, any person claiming through him, such as his executor, children or administrator. Further, contact is welcomed from anyone who may know any information regarding Paul Giovanetti. Please contact Nigel Siegwart on [phone] or [email protected]. If Paul Giovanetti (or any person claiming through him) does not make contact by [insert date two months from publication of the advertisement] then the deceased estate will be distributed and the claim of Paul Giovanetti and any person entitled to claim through him will be disregarded.

   [26]  Minute of Proposed Orders filed 20 March 2023.

2. On 23 March 2023, I made the order sought and ordered that the advertisements be published for a single day during the week.

3. The advertisement was published in the Government Gazette (WA) on 28 March 2023 and in the West Australian Newspaper on 24 March 2023.[27]

   [27] Siegwart Affidavit [3.1].

4. The plaintiff's solicitors confirmed that they did not receive any contact or claim from any person in response to the advertisement or any correspondence.[28]

   [28] Siegwart Affidavit [6] - [7]. 

5. That, together with the searches conducted, satisfies me that s 66(5) of the Trustees Act has been enlivened. 

6. It is not necessary for me to determine what has happened to Paul.  There are a number of possibilities, including that Paul has permanently or temporarily moved interstate or overseas, does not want to contact the administrators, has died, has changed his name, or is incapacitated.  I cannot make any determination as to what has happened.  The current whereabouts of Paul is unknown.

7. I am satisfied that the plaintiff has conducted appropriate and extensive searches for Paul and he cannot be located.  I am also satisfied that no reasonable further enquiries could be made which would improve the state of the evidence.  Given the relatively small size of the estate I consider it would be an unreasonable impost on the estate to require further enquiries be made.  Given the rights of the remaining beneficiaries and the size of the estate, particularly as compared to the size of the bequest to Paul, it is now appropriate to grant the orders sought. 

1. The order will protect the plaintiff and enable him to distribute the balance of the estate.  But the order will not affect the rights of Paul if he is alive and becomes aware of the bequest to take action to trace the proceeds, subject to any relevant limitation period.

Orders

1. It is declared, pursuant to s 66(5) of the Trustees Act 1962 (WA), that the plaintiff may distribute the portion of the estate of Mark Enrico Giovanetti due to Paul Victor Giovanetti to the first defendant and third defendant (in equal portions) as if Paul Victor Giovanetti predeceased Mark Enrico Giovanetti. 

2. Pursuant to s 108 of the Trustees Act (and the inherent jurisdiction of the Court), the plaintiff's costs of and associated with this application be paid out of the second defendant's share of the estate on a solicitor/client basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CM

Associate to the Acting Master

9 JUNE 2023