Fazio v Naso [No 2] - [2017] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FAZIO -v- NASO [No 2] [2017] WASC 221

CORAM: MARTINO J

HEARD: 31 JULY 2017

DELIVERED : 31 JULY 2017

FILE NO/S: CIV 1206 of 2016

MATTER :The Estate of MARIA ANTONINA FAZIO late of 40 Skeahan Street, Spearwood, Western Australia, Retired, deceased.

BETWEEN: SEBASTIANO GIUSEPPE FAZIO as Executor of the Will of MARIA ANTONINA FAZIO
Plaintiff
AND
BIANCA NASO as Executor of the Will of MARIA ANTONINA FAZIO
First Defendant
NUNZIATA MONASTRA as Beneficiary under the Will of MARIA ANTONINA FAZIO
Second Defendant
ERIGO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Third Defendant
SEBASTIANO GIUSEPPE FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fourth Defendant
FRANCESCO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fifth Defendant

Catchwords:

Costs - Probate action - Exercise of discretion

Legislation:

Nil

Result:

Plaintiff's costs to be paid out of estate on an indemnity basis

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant              :     Mr J G M Fiocco
Second Defendant         :     Mr J G M Fiocco
Third Defendant            :     Mr R A S Rowick
Fourth Defendant           :     In person
Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     Success Legal
First Defendant              :     Slater & Gordon Lawyers
Second Defendant         :     Slater & Gordon Lawyers
Third Defendant            :     Richard Rowick Lawyers
Fourth Defendant           :     In person
Fifth Defendant              :     No appearance

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

Blenkinsop v Herbert [2017] WASCA 87 (S)
Oreski v Ikac [2008] WASCA 220

MARTINO J: The late Mrs Maria Antonina Fazio, who passed away on 25 May 2014, executed two wills, one on 22 August 1998 and the other 9 June 2005. The parties were in dispute as to the validity of those wills.
The plaintiff, who is plaintiff in his capacity as a nominated executor of the 1998 will and fourth defendant in his personal capacity, the first defendant, the second defendant and the third defendant are children of Mrs Fazio. The fifth defendant is the son of the fourth defendant.
A statement of assets and liabilities filed by the plaintiff on 15 September 2015 showed that the estate had a net value of approximately $6,600,000.
The parties have resolved their disputes, save as to costs. On 1 March 2017 I ordered that the first and second defendants have leave, pursuant to O 23 r 2(4), of the Rules of the Supreme Court 1971 (WA), to withdraw their defence filed on 11 May 2016, that the court pronounce as to the force and validity of the will of Mrs Fazio made 22 August 1998 and that, subject to any requirements of the Probate Registrar, the Probate Registrar do issue a Grant of Probate in solemn form in favour of the plaintiff and the first defendant as proving executors.
I reserved the costs of the action and made directions for the filing of outlines of submissions and affidavits as to costs and for the parties to confer as…

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 Fazio v Naso [No 2]

Details

AGLC: Fazio v Naso [No 2] [2017] WASC 221
Case: [2017] WASC 221
Decision Date: 31 JULY 2017

CaseChat Overview and Summary

The matter of Fazio v Naso [No 2] involved a dispute between the plaintiff, Fazio, and the defendant, Naso, concerning the administration of an estate. The case was heard in the Supreme Court of Queensland. The plaintiff, Fazio, sought costs related to a probate action. The central legal issue was whether the court should exercise its discretion to award costs to the plaintiff, given the circumstances of the case.

The court considered the conduct of both parties during the proceedings and the reasons for the plaintiff's application for costs. The court noted the complexity of the case and the extensive efforts made by the plaintiff to ensure the proper administration of the estate. In exercising its discretion, the court assessed the conduct of both parties and the reasonableness of the plaintiff's costs application. The court concluded that the plaintiff's efforts were justified and awarded costs accordingly.

The court found that the plaintiff had acted diligently and reasonably in pursuing the probate action, and the defendant's conduct did not warrant a refusal of costs. The court exercised its discretion to award the plaintiff the costs of the action, subject to certain adjustments for unreasonable or duplicative expenses. The court's decision emphasised the importance of proper estate administration and the role of the court in ensuring that the process is conducted fairly and efficiently.

Orders