LYSTRA Allison Tagliaferri as Administrator of the Estate of David Eugenio Tagliaferri v LYSTRA Allison Tagliaferri and Lisa Dianna Sawyer as Trustees for Hayley Beatrice Tagliaferri and Caitlyn Thelma Tagliaferri [No 2]

[2013] WASC 438

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   LYSTRA ALLISON TAGLIAFERRI as Administrator of the Estate of David Eugenio Tagliaferri -v- LYSTRA ALLISON TAGLIAFERRI and LISA DIANNA SAWYER as Trustees for Hayley Beatrice Tagliaferri and Caitlyn Thelma Tagliaferri [No 2] [2013] WASC 438

CORAM:   EM HEENAN J

HEARD:   ON THE PAPERS

DELIVERED          :   5 DECEMBER 2013

FILE NO/S:   CIV 2501 of 2012

MATTER                :Section 30(1)(k) of the Trustees Act 1962 (WA) and s 14 of the Administration Act 1903 (WA)

AND

The Estate of David Eugenio Tagliaferri, late of 3 Cheviot Way, Eaton, Western Australia, dec

BETWEEN:   LYSTRA ALLISON TAGLIAFERRI as Administrator of the Estate of David Eugenio Tagliaferri

Plaintiff

AND

LYSTRA ALLISON TAGLIAFERRI and LISA DIANNA SAWYER as Trustees for Hayley Beatrice Tagliaferri and Caitlyn Thelma Tagliaferri
First Defendants

LYSTRA ALLISON TAGLIAFERRI
Second Defendant

Catchwords:

Administrations of estate - Intestacy - Appropriation of an asset in satisfaction of intestate entitlement - Infants - Court approval - Form of final orders

Legislation:

Administration Act 1903 (WA)
Trustees Act 1962 (WA)

Result:

Appropriation by widow administrator to herself of dwelling house of intestate is approved

Category:    B

Representation:

Counsel:

Plaintiff:     Mr N D Billington

First Defendants           :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Jarman McKenna

First Defendants           :     No appearance

Second Defendant         :     No appearance

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

Tagliaferri as Administrator of the Estate of David Eugenio Tagliaferri v Tagliaferri and Sawyer [2013] WASC 321

1. EM HEENAN J:  For reasons already published in this matter, Tagliaferri as Administrator of the Estate of David Eugenio Tagliaferri v Tagliaferri and Sawyer [2013] WASC 321, I declared and ordered that the Court would approve either the proposed application by the plaintiff under s 30(1)(k) of the Trustees Act 1962 (WA) to herself of the interest of the estate of the deceased in the house and land situate at and known as 3 Cheviot Way, Eaton, in the State of Western Australia or, alternatively, if the plaintiff chose instead, that the Court would approve an election by the plaintiff to have the estate interest in that property appropriated to herself and an extension of time for doing so to be granted under the Fourth Schedule of the Administration Act 1903 (WA) cl 3(2), and that the plaintiff should, within a time then fixed, file a notice specifying which of the two forms of relief sought by the originating summons she chose to accept, whereupon final orders would be made without the need for any further hearing.

2. By notice of election dated 28 August 2013 the plaintiff, by her solicitors, elected to appropriate the property at 3 Cheviot Way, Eaton, being more particularly described as Lot 259 on Plan 22783 and being the whole of the land in Certificate of Title vol 2166 fol 892, in part satisfaction of her share in the estate of David Eugene Tagliaferri, deceased, late of 3 Cheviot Way, Eaton, pursuant to s 30(1)(k) of the Trustees Act.

3. At the same time, the solicitors for the plaintiff filed a draft of a proposed final order to give effect to the orders and declarations proposed in my reasons for judgment published 23 August 2013. However, those proposed orders did not specify which of the two forms of relief was chosen by the plaintiff but, rather, recited both alternative forms of order proposed in the reasons for judgment without implementing the choice made by the plaintiff in the notice of election dated and filed 28 August 2013. I consider that the final order of the Court should specify only the relief which the Court actually orders in the light of the election made by the plaintiff and, for that reason, I have modified the draft of the proposed final orders to give effect to the election made by the plaintiff to seek approval of an appropriation made to herself pursuant to s 30(1)(k) of the Trustees Act. 

4. The terms of the final orders and declarations of the Court will, therefore, be as follows:

   1.Appropriation by the plaintiff, Lystra Allison Tagliaferri, to herself of the property situate and known as 3 Cheviot Way, Eaton, in the State of Western Australia, being all that piece of land more particularly described as Lot 259 on Plan 22783 and being the whole of the land in Certificate of Title volume 2166 folio 896 ('the Property') in part satisfaction of her share in the estate of David Eugenio Tagliaferri, late of 3 Cheviot Way, Eaton ('the Estate') pursuant to s 30(1)(k) of the Trustees Act 1962 (WA) be and is hereby approved.

   2.For the purposes of the appropriation the Property shall be treated as having a value of $395,000 at the date of the appropriation which shall be treated as being 31 May 2013.

   3.The costs of this application, including the costs of the valuation and independent counsel's opinion, shall be costs in the administration of the Estate to be paid out on a solicitor and client basis.

   4.There be liberty to apply.