Legal Research
Cases
Farano v Arcaro

Farano v Arcaro

Case [2021] WASC 461 16 December 2021

Type to search within this case.

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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farano v Arcaro

Details

AGLC: Farano v Arcaro [2021] WASC 461
Case: [2021] WASC 461
Decision Date: 16 DECEMBER 2021

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