Marchesi v Oldridge
[2020] WASC 460
•11 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MARCHESI -v- OLDRIDGE [2020] WASC 460
CORAM: MASTER SANDERSON
HEARD: ON THE PAPERS
DELIVERED : 25 NOVEMBER 2020
PUBLISHED : 11 DECEMBER 2020
FILE NO/S: CIV 3102 of 2019
BETWEEN: PAUL ALEX MARCHESI
First Plaintiff
PAUL ALEX MARCHESI as executor of the estate of ALEX VICTOR WILLIAM MARCHESI (ALSO KNOWN AS VICTOR WILLIAM MARCHESI)
Second Plaintiff
AND
DONNA MARIE OLDRIDGE
Defendant
Catchwords:
Probate - Application by limited receiver and limited administrator - Turns on own facts
Legislation:
Nil
Result:
Orders proposed by limited receiver and limited administrator made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | No appearance |
| Limited Receiver and Limited Administrator | : | No appearance |
Solicitors:
| First Plaintiff | : | Williams & Hughes |
| Second Plaintiff | : | Williams & Hughes |
| Defendant | : | TGC Lawyers |
| Limited Receiver and Limited Administrator | : | Geoffrey Donald Church |
Case(s) referred to in decision(s):
Nil
MASTER SANDERSON:
On 10 March 2020, I made the following orders:
1. Proposed limited receiver, Geoffrey Donald Church, (Mr Church) be appointed as the limited receiver of the real estate of the late Evelyn May Marchesi (Deceased) (Estate) with power to:
(i) within 60 days of the date of these orders, take vacant possession of the Deceased's interest in the property at 64 Kelvin Road, Wattle Grove (Lot 550 on Diagram 70523, CT volume 1740, folio 34) (Wattle Grove Property);
(ii) obtain evidence of the market value of the Wattle Grove Property;
(iii) sell the Wattle Grove Property by public auction or private treaty as he sees fit in consultation with the second plaintiff;
(iv) fix a minimum or reserve price of the Wattle Grove Property in consultation with the second plaintiff;
(v) settle the particulars and conditions of sale of the Wattle Grove Property in consultation with the second plaintiff;
(vi) execute any documents reasonably required to be executed to sell the Wattle Grove Property and transfer the Wattle Grove Property to a purchaser including an authority to act to appoint a real estate agent, a contract for sale and a Transfer of Land Act transfer to convey title to a purchaser;
(vii) fix the remuneration to be allowed to any auctioneer, real estate agent or other person engaged by him to sell of the Wattle Grove Property in consultation with the second plaintiff; and
(viii) fix an amount which a party to this action who buys the Wattle Grove Property may set off against the purchase price (other than the deposit) in respect of the Estates share of those sale proceeds that exceed the amount required to repay the National Australia Bank (Mortgagee) for the monies owing on its registered mortgage No. 4531423 (Mortgage).
2. The plaintiffs and the defendant have liberty to bid at auction or offer to purchase the Wattle Grove Property by any other form of sale.
3. Mr Church, and his professional and support staff working under his supervision, shall be entitled to remuneration at the rates (plus GST) per hour in Annexure A of the plaintiffs chamber summons dated 29 January 2020 - for the time devoted to acting pursuant to these orders.
4. The gross sale proceeds of the Wattle Grove Property after payment of what shall be due to discharge:
(i) the Mortgage;
(ii) all other proper costs, charges and expenses of the sale of the Wattle Grove Property;
(iii) Mr Church's remuneration, costs and expenses; and
(iv) the plaintiffs' costs of this application to be taxed if not agreed, be paid into Court.
5. Mr Church be appointed as limited administrator of the personal estate of the Deceased for the limited purpose of:
(i) freezing all bank accounts of the Deceased and accessing the same to fund the implementation of these orders;
(ii) managing the personal property of the Deceased to ensure it is not misappropriated, cataloguing the personal property, arranging valuations and safe storage of the personal property; and
(iii) taking control of the Deceased's ashes and safely storing the same.
6. The requirement of Mr Church to provide a surety for his role as limited receiver and limited administrator of the Estate be dispensed with.
7. Mr Church must file accounts of the Estate with the Court bi‑annually, with the first of such reports due 6 months from the date of appointment.
8. There be liberty for any party to apply to the Court upon giving 24 hours' notice to the parties.
9. Costs reserved.
The writ of summons in this matter was lodged on 10 December 2019. It explained the first plaintiff is the son of the late Evelyn May Marchesi (the deceased) who died on 3 August 2019.[1] He is the half‑brother of the defendant.[2] He is also the executor of the estate of the late Alex Victor William Marchesi (V Marchesi).[3] Since 9 March 2017 the plaintiff, in his capacity as the executor of the estate of V Marchesi, has been a legal co‑owner with the deceased of a property in Wattle Grove.[4] The defendant was the executor named in the last will of the deceased dated 28 June 2019 (2019 Will).[5]
[1] Plaintiff's writ of summons filed 10 December 2019, [1.2].
[2] Plaintiff's writ of summons filed 10 December 2019, [1.3].
[3] Plaintiff's writ of summons filed 10 December 2019, [2.1].
[4] Plaintiff's writ of summons filed 10 December 2019, [2.4].
[5] Plaintiff's writ of summons filed 10 December 2019, [3.5].
The plaintiff says the 2019 Will is in all respects the last will and testament of the deceased.[6] The parties appear to agree on that issue. The plaintiff alleges the defendant has been intermeddling in the estate.[7] The details of that allegation are not presently relevant. What is relevant are the allegations made in pars 12, 13 and 14 of the statement of claim which was indorsed on the writ. Those paragraphs read as follows:
[6] Plaintiff's writ of summons filed 10 December 2019, [4] – [10].
[7] Plaintiff's writ of summons filed 10 December 2019, [11].
12. At all material times Mrs Oldridge and her de facto spouse Greg Smith have been jointly and severally liable to repay an on-loan, of $280,000, made to them by the Deceased and V Marchesi (Mr & Mrs Marchesi) that Mr & Mrs Marchesi borrowed from the National Australia Bank (NAB) and secured by way of a registered first mortgage against the Wattle Grove Property (NAB Mortgage) (NAB Loan) (hereinafter the NAB Loan by Mr & Mrs Marchesi from NAB that was on-loaned to Mrs Oldridge and Greg Smith – the On Loan).
13. The On-Loan is:
13.1 for an amount of $280,000;
13.2 unsecured;
13.3 payable on demand; and
13.4 a back-to-back loan with the NAB Loan.
14. The NAB Loan is:
14.1 due and payable by reason that, inter alia, both mortgagors, namely Mr & Mrs Marchesi, are deceased;
14.2 the subject of a written default notice and a written demand/ acceleration notice from NAB;
14.3 at or over its loan limit of $280,000, by reason that nobody is regularly servicing the NAB Loan; and
14.4 in effect, one and the same loan as the On Loan, for which Mrs Oldridge and Greg Smith are jointly and severally liable.
The relief claimed by the plaintiff is the appointment of Mr Church as administrator of the deceased's estate in preference to the defendant. The interim orders I made effectively allow Mr Church to administer the estate in part, pending determination of the issues between the parties. Those interim orders were made over the objection of the defendant. I was satisfied that the management of the Wattle Grove property required Mr Church's interim appointment.
The defendant filed an amended defence on 16 September 2020. Paragraphs 3, 4 and 5 of the amended defence respond to pars 12, 13 and 14 of the statement of claim. Those paragraphs read as follows:
3. As to paragraph 12 of the Statement of Claim the Defendant:
(i) admits that the Defendant and the Defendant’s de facto spouse Greg Smith are jointly liable to the On–Loan to NAB;
(ii) however joins issue as to whether the Defendant and Greg Smith are severally liable to repay the On-Loan to NAB;
(iii) at or about the time the NAB Loan was taken out the Defendant and her de facto husband Greg Smith orally agreed with Deceased and V. Marchesi that:
(a) the Defendant and Smith would service the loan debt owed to the NAB which was to be secured against the Wattle Grove Property;
(b) upon the sale of the said Property any debt that would otherwise have been owed by the Defendant and Smith to the Deceased and V. Marchesi (but for this agreement) by reason of the NAB Mortgage shall be extinguished and written off with the result that:
(i) the Defendant and Smith shall be released from all or any obligation or responsibility to repay the residual of the NAB Loan debt to the Deceased and V, Marchesi; and
(ii) the balance of the NAB Loan shall be construed as being a gift to the Defendant and Smith from the Deceased and V. Marchesi.
(iv) pursuant to the agreement the Defendant and Smith serviced and made the interest payments in respect of the NAB Mortgage Loan debt;
(v) it follows in the above premises that on a proper construction of the terms of the 2019 Will the order of distribution of the net proceeds of the sale of the Wattle Grove Property following payment of the debt owed to the NAB shall be as follows:
(a) 50 percent to the Plaintiff;
(b) 25 percent to the Defendant;
(c) 25 percent to the Defendant’s sister Ms Staniforth-Smith.
4. The Defendant admits paragraph 13 of the Statement of Claim.
5. As to paragraph 14 of the Statement of Claim the Defendant states as follows adopting the numbering in paragraph 14:
14.1 Denies and joins issue.
14.2 The Defendant admits that there was a Default Notice issued by NAB to the Deceased on or about 9 May 2019 and subsequently the Defendant’s son Oliver Smith rectified the Default Notice by paying to NAB on 30 May 2019 $6,547.02 and $1,500.00 on 10 June 2019.
14.3 Denies and joins issue.
14.4 Denies and joins issue.
By letter dated 15 September 2020 and filed on 18 September 2020, Mr Church wrote to the court explaining what steps he had taken in relation to the Wattle Grove property. Essentially, he said he had obtained two valuations from licensed valuers and two market appraisals from local real estate agents.[8] Based upon that information, he had agreed to sell the estate's undivided half interest in the Wattle Grove property to the deceased's sister and brother‑in‑law for an amount of $350,000.[9] He then sets out various amounts to be paid as costs and expenses, including an amount of just under $300,000 payable to the National Australia Bank to discharge the mortgage.[10] He estimated the funds available to the estate in an amount of just over $11,000.[11] The letter makes it plain he had carefully considered the competing interests of the parties. He saw the proposed sale as the best option in all the circumstances.
[8] Letter from Limited Receiver and Limited Administrator filed 18 September 2020, p 1.
[9] Letter from Limited Receiver and Limited Administrator filed 18 September 2020, p 1.
[10] Letter from Limited Receiver and Limited Administrator filed 18 September 2020, p 1.
[11] Letter from Limited Receiver and Limited Administrator filed 18 September 2020, p 1.
Mr Church then filed a minute of proposed orders on 18 September 2020. The orders he sought were as follows:
1. Order 4 of the orders of Master Sanderson dated 10 March 2020 (Orders) be varied:
1.1 to clarify that an undivided half share of the Wattle Grove Property is being sold and that the gross sale proceeds of the same will be applied in accordance with order 4 of the Orders;
1.2 Mr Church be permitted to sell or transfer the Deceased’s 2002, Mitsubishi Magna motor vehicle and pay the net proceeds of sale into Court along with the surplus sale proceeds of the Wattle Grove Property;
1.3 Mr Church be permitted to dispose of the Deceased’s ashes at the joint direction of Mr Marchesi, Mrs Oldridge and Mrs Staniforth-Smith and failing a joint direction to have the Deceased’s funeral director divide the ashes in three (3) equal portions and have the funeral director deliver one (1) portion of the ashes to each of Mr Marchesi, Mrs Oldridge and Mrs Staniforth‑Smith with the funeral director’s costs of the same to be deducted from the monies to be paid into Court;
1.4 following the execution of the Orders and these orders, Mr Church:
(a) file a final set of Estate accounts with the Court;
(b) retire as limited receiver and limited administrator; and
(c) be paid his further costs from the monies to be paid into Court.
2. There is liberty reserved for Mrs Staniforth-Smith to apply to be heard in respect of these orders.
3. There be no order as to the costs of these orders.
On 8 October 2020 Mr Church filed an affidavit sworn 7 October 2020. He confirmed the contents of his earlier letter and reiterated he thought the orders he proposed were the best way forward.[12] The defendant objected to those orders being made. In opposition to the application, she filed an affidavit sworn 26 October 2020. In response to that affidavit, the plaintiff filed an affidavit sworn 4 November 2020 and a further affidavit sworn 19 November 2020. Mr Church filed a supplementary affidavit on 20 November 2020 and the defendant filed a further affidavit on 24 November 2020. Solicitors for the plaintiff and the defendant each filed a series of submissions. The matter was mentioned in chambers on a number of occasions. On 25 November 2020, I made orders in terms sought by Mr Church. I indicated I would provide reasons for that decision. These are those reasons.
[12] Affidavit of Mr G D Church sworn 7 October 2020, [2] – [16].
In her affidavit sworn 16 November 2020 the defendant alleges the Wattle Grove property is being sold under value in a related party transaction.[13] She says she obtained a valuation in August 2019 which put the value of the property at $1.1 million.[14] She does not attach a copy of that valuation. The defendant also disputes that the property is a dilapidated condition.[15] Furthermore, she says if it is in a dilapidated condition, that is the fault of the plaintiff.[16] What the defendant was seeking was to instruct a real estate agent to sell the property with an associated marketing campaign.[17] The difficulty with the defendant's position is that it is nowhere supported by any evidence. There is simply nothing to suggest following the course proposed by the defendant will increase the return to the deceased's estate.
[13] Affidavit of Donna Marie Oldridge sworn 16 November 2020, [6].
[14] Affidavit of Donna Marie Oldridge sworn 16 November 2020, [10].
[15] Affidavit of Donna Marie Oldridge sworn 16 November 2020, [4] – [5].
[16] Affidavit of Donna Marie Oldridge sworn 16 November 2020, [3], [13].
[17] Affidavit of Donna Marie Oldridge sworn 16 November 2020, [9].
There are two further matters which are relevant. First, it is unclear what interest the defendant might actually have in the estate. It is inappropriate, given the present state of the pleadings and the action generally, to draw firm conclusions on this issue. However, in what would appear to be a relatively modest estate, it is difficult to see how the defendant will receive anything at all. When an independent administrator of the estate suggests a particular course, which is opposed by a party with, at best, a modest interest in the estate, considerable weight must be given to the administrator's views.
The second matter relates to the National Australia Bank. There would appear to be some dispute between the parties as to whether or not the bank is intending to enforce the mortgage. The evidence establishes it would have the right to do so. If the bank did take possession of the Wattle Grove property, it is unlikely the return would be greater than the return generated by the course proposed by Mr Church. Apart from anything else, there would be the imposition of the bank's costs and charges. It is in all respects preferable to effect a sale rather than allow a forced sale which will result if the bank takes the property.
For these reasons I was satisfied the orders proposed by Mr Church should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson11 DECEMBER 2020
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