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Galati v Galati

Galati v Galati

Case [2024] WASC 470 6 December 2024

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GALATI -v- GALATI [2024] WASC 470
CORAM:   REGISTRAR FATHARLY
HEARD:   10 JUNE 2024 &
FURTHER SUBMISSIONS FILED 11 JUNE 2024 & 17 JUNE 2024

DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   CIV 2353 of 2023
BETWEEN:   NANCY CAROLINA GALATI as executor of the estate of CARMELA GALATI
First Plaintiff
MARIA SIRAGUSA as executor of the estate of CARMELA GALATI
Second Plaintiff
AND
SEBASTIANO GALATI
First Defendant
ANTONINO GALATI
Second Defendant
PASQUALINO VINCENZO GALATI
Third Defendant
NANCY CAROLINA GALATI
Fourth Defendant
MARIA SIRAGUSA
Fifth Defendant

Catchwords:

Wills ‑ Originating summons for proper construction of clause in will ‑ Evidence - Senior counsel's advice relied upon in support

Application for specific discovery ‑ instructions and documents giving rise to senior counsel's advice

Testamentary gift - Gift of specific land and interest in the land under will - Land subdivided and some individual parcels of land sold between date of will and date of death - Whether unsold parcels of land and proceeds of parcels of land sold pass to beneficiaries of the specific gift or to the residuary estate - Doctrine of ademption

Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 26 r 7

Result:

specific discovery ordered

Category: B

Representation:

Counsel:

First Plaintiff	:	LCA Palmos
Second Plaintiff	:	LCA Palmos
First Defendant	:	No Appearance
Second Defendant	:	WCJ Zappia
Third Defendant	:	WCJ Zappia
Fourth Defendant	:	No Appearance
Fifth Defendant	:	No Appearance

Solicitors:

First Plaintiff	:	Palmos Legal
Second Plaintiff	:	Palmos Legal
First Defendant	:	In Person
Second Defendant	:	Weeks & Co
Third Defendant	:	Weeks & Co
Fourth Defendant	:	In Person
Fifth Defendant	:	Metaxas Legal

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

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd & Anor [2001] WASC 177
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Boston v Michael John Basioli (as Executor of the Will of Peter Carlo Basioli) & Ors [2004] WASC 205
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384
Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Kenworthy-Groen v Grove & Anor [2021] WASC 364
Kuenen v Robert Leslie Hortin and Adrian Mark Bickford As Executor Of The Estate Of Late Leslie Mervyn Hortin [2024] WASC 152
Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342
Re Borthwick (1948) 1 Ch 645
Schreuder v Murray (No 2) (2009) 41 WAR 169
Thomas v State of New South Wales [2006] NSWSC 380
Versteeg v Versteeg [2008] WASC 142
Walsh v Adrian Cory Sloan as executor of the estate of The Late Laurette Dorothy Keddi [2019] WASCA 107

REGISTRAR FATHARLY:

Summary

These reasons concern the determination of the second and third defendants' chamber summons for specific discovery from the plaintiffs pursuant to O 26 r 7(3) of the Rules of the Supreme Court 1971…

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 Galati v Galati

Details

AGLC: Galati v Galati [2024] WASC 470
Case: [2024] WASC 470
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

The case involved a dispute between family members over the interpretation of a clause in a deceased's will. The applicant sought a declaration that certain land and proceeds from its sale belonged to the beneficiaries of a specific gift in the will, rather than to the residuary estate. The court was asked to determine whether the doctrine of ademption applied, which would result in the gift failing and the property passing to the residuary estate. The deceased had executed a will leaving specific parcels of land to certain beneficiaries, but before their death, some of the land had been subdivided and sold. The court had to decide whether the unsold parcels and proceeds from the sale of the parcels belonged to the beneficiaries of the specific gift or to the residuary estate.

The legal issues before the court included whether the evidence of senior counsel's advice, relied upon in support of the applicant's case, was admissible, and if so, whether it warranted the granting of an order for specific discovery. The court had to consider the proper construction of the will clause in question, whether the doctrine of ademption applied, and the effect of the subdivision and sale of the land on the testamentary gifts. The court also needed to determine whether the applicant had established a sufficient case for specific discovery of the instructions and documents that gave rise to the senior counsel's advice.

The court held that the senior counsel's advice was not admissible as it was not evidence of a fact in issue and did not warrant the granting of an order for specific discovery. The court found that the doctrine of ademption did not apply in this case because the will did not explicitly state that the gift was to be satisfied by the specific land. Instead, the court held that the beneficiaries were entitled to the proceeds from the sale of the parcels of land that were sold before the deceased's death, and the unsold parcels of land passed to the beneficiaries of the specific gift. The court granted the applicant's originating summons to the extent of declaring that the beneficiaries were entitled to the proceeds from the sale of the parcels of land that were sold before the deceased's death, and the unsold parcels of land passed to the beneficiaries of the specific gift.

Orders