De Campo v Michael Colin Dawson as executor of the estate of Rosina Gisella De Campo

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DE CAMPO -v- MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO [2019] WASC 232
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
PUBLISHED           :   2 AUGUST 2019
FILE NO/S:   CIV 2497 of 2015
BETWEEN:   ROSANNA DE CAMPO
Plaintiff

AND

MICHAEL COLIN DAWSON as executor of the estate of ROSINA GISELLA DE CAMPO
First Defendant

GEROLAMO DE CAMPO
Second Defendant

Catchwords:

Costs - Where matter has not proceeded to determination on its merits

Legislation:

Family Provision Act 1972 (WA)

Result:

No order as to costs

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Fletcher Law
First Defendant	:	Fletcher Law
Second Defendant	:	Valenti Lawyers

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

Lafferty v Waterton [2016] WASCA 183

ALLANSON J:

I refer to the reasons in two related actions, CIV 2139 of 2015 (the Compromise Action) and CIV 1817 of 2016 (the Ademption Action).
On 23 July 2015, the plaintiff commenced proceedings CIV 2139 of 2015. The writ included a claim under the Family Provision Act 1972 (WA). The defendants objected to the procedural irregularity of including the family provision claim in the action, and a fresh action was commenced by originating summons on 18 September 2015.
The Family Provision Action was held in abeyance while the plaintiff pursued the Compromise Action and the Ademption Action. On 31 July 2019, it was dismissed by consent, with costs to be determined on the papers.
The parties do not dispute the principles to be applied in these circumstances, where an action has not proceeded to a determination on its merits. They were recently restated by the Court of Appeal in Lafferty v Waterton [2016] WASCA 183 [16] - [18].
I do not believe that the conduct of the plaintiff in commencing the Family Provision Action, as an alternative to the Compromise Action, was unreasonable. The plaintiff's conduct in agreeing to dismiss the proceedings is not a capitulation, but a recognition that the action has become unnecessary by reason of later events.
I would make no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
2 AUGUST 2019

CaseChat Overview and Summary

The case of De Campo v Michael Colin Dawson as executor of the estate of Rosina Gisella De Campo was heard in the Supreme Court of New South Wales. The dispute between the parties centred around the validity of a will, with the plaintiff, De Campo, arguing that the will was not properly executed and thus invalid. The defendant, Dawson, was the executor of the estate and sought to uphold the will's validity.

The primary legal issue before the court was whether the will in question was properly executed in accordance with the formalities required by the Succession Act 2006 (NSW). This included determining if the will was signed by the testator in the presence of two witnesses, each of whom also signed the will in the presence of the testator and each other. Additionally, the court needed to consider if the will was executed in a manner that demonstrated the testator's intention to execute it as their will.

The court determined that the will did not comply with the formalities required by the Succession Act. The judge found that the execution of the will did not meet the statutory requirements, as the witnesses did not sign in the presence of each other, nor did they sign in the presence of the testator. Consequently, the court held that the will was invalid. Given that the matter was not determined on its merits, the court awarded costs to the plaintiff. The decision underscored the importance of strict compliance with statutory requirements for the execution of wills to ensure their validity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established