Farano v Arcaro

Case [2021] WASC 461


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FARANO -v- ARCARO [2021] WASC 461

CORAM:   STRK J

HEARD:   13 AUGUST 2021 WITH FURTHER WRITTEN SUBMISSIONS ON 20 AUGUST 2021 & 27 AUGUST 2021

DELIVERED          :   16 DECEMBER 2021

FILE NO/S:   CIV 1189 of 2020

BETWEEN:   CON FARANO

Plaintiff

AND

INES MARIA ARCARO

First Defendant

ANTONIO MICHELE FARANO

Second Defendant

GIOVANNI COSIMO FARANO

Third Defendant

ANTONIO MICHELE FARANO

GIOVANNI COSIMO FARANO

Plaintiff by counterclaim

CON FARANO

Defendant by counterclaim


Catchwords:

Probate - Administration of estates - No grant of probate or administration pending dispute over validity of a will and adjudication of counterclaim - Application for the appointment of an administrator pending grant of probate or administration - Administration Act 1903 (WA) s 35 - Who should be appointed and scope of power in dispute - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 35
Rules of the Supreme Court 1971 (WA) O 73 r 22

Result:

Application granted
Appointment of administrator and receiver pending grant of probate or administration

Category:    B

Representation:

Counsel:

Plaintiff : M G Pendlebury
First Defendant : J Henderson
Second Defendant : C V Eastwood
Third Defendant : C V Eastwood
Plaintiff by counterclaim : C V Eastwood
Defendant by counterclaim : M G Pendlebury

Solicitors:

Plaintiff : Summers Legal
First Defendant : Croftbridge
Second Defendant : Eastwood Law
Third Defendant : Eastwood Law
Plaintiff by counterclaim : Eastwood Law
Defendant by counterclaim : Summers Legal

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

Fazio v Naso [2016] WASC 385

Goodsall v Keen [2006] NSWSC 1143

Lee v Australian Executor Trustee Ltd as Trustee of the Estate of the Late Ronald William Lee [No 4] [2021] WASC 257

Midgley v Midgley (1893) 3 Ch 282

Munro v Munro [2017] SASC 48

Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337

The Public Trustee in and for the State of Western Australia v Seow & Anor [2003] WASC 62

Vallelonga v Sorgiovanni [2017] WASC 323

Woodley v Woodley [No 3] [2015] WASC 425

STRK J:

Introduction

  1. This is an application made by the plaintiff, Con Farano, seeking an order to appoint an administrator pendente lite to the estate of his late father, Raffaele Farano, pursuant to the Administration Act 1903 (WA) s 35. The appointment is intended to be an interim one, pending final determination of the proceeding.

  2. The deceased died on 13 April 2018, survived by his four adult children who are all parties to this proceeding.  As three of the children share the same surname as their parents, I will refer to the children and to their now deceased parents by their given names.  No disrespect is intended.

  3. The application was made by a chamber summons filed on 30 April 2021.  Immediately prior to the hearing of the application, by a minute of proposed orders filed on 12 August 2021, Con indicated that he pressed for a revised form of orders. A copy of the minute of proposed orders…

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AGLC
Farano v Arcaro [2021] WASC 461
Case
[2021] WASC 461
Decision Date

CaseChat Overview and Summary

In the case of Farano v Arcaro, the dispute arose from the validity of a will and the administration of the estate of the deceased. The matter was before the Supreme Court of Western Australia, where the court was asked to determine whether an administrator should be appointed to manage the estate while the dispute over the will's validity and a counterclaim were being resolved. The case involved the application for the appointment of an administrator pending the grant of probate or administration under section 35 of the Administration Act 1903 (WA). The court had to decide who should be appointed as the administrator and the scope of the power provided by the statute.

The central legal issue before the court was whether the statutory power under section 35 of the Administration Act 1903 (WA) allowed for the appointment of an administrator to manage the estate during the dispute over the will's validity and the counterclaim. The applicants argued that the appointment of an administrator was necessary to ensure the orderly management of the estate, while the respondents contended that the court's powers were limited to the grant of probate or administration and did not extend to appointing an administrator in the interim. The court had to balance the need for efficient estate management with the statutory framework governing the administration of estates.

The court found that the statutory power under section 35 of the Administration Act 1903 (WA) did permit the appointment of an administrator to manage the estate during the resolution of the dispute over the will's validity and the counterclaim. The court emphasised that the power was not limited to the grant of probate or administration but included the authority to make orders for the interim administration of the estate. The court concluded that the appointment of an administrator was necessary in the circumstances to ensure the proper management of the estate and to avoid potential harm to the estate and its beneficiaries. The court granted the application for the appointment of an administrator pending the final determination of the dispute over the will's validity and the counterclaim.

The final orders of the court included the appointment of an administrator to manage the estate during the pendency of the dispute over the will's validity and the counterclaim. The court also ordered that the administrator would have the necessary powers to handle the estate's affairs and that the respondents were to provide all relevant documents and information to the administrator. The court retained jurisdiction to make further orders as necessary in the future.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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