Marchesi v Oldridge
[2020] WASC 127
•28 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MARCHESI -v- OLDRIDGE [2020] WASC 127
CORAM: MASTER SANDERSON
HEARD: 10 MARCH 2020
DELIVERED : 10 MARCH 2020
PUBLISHED : 28 APRIL 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 - Appointment of limited receiver and manager - Turns on own facts
Legislation:
Nil
Result:
Appointment of interim limited receiver and administrator
Category: B
Representation:
Counsel:
| First Plaintiff | : | J A Robertson |
| Second Plaintiff | : | J A Robertson |
| Defendant | : | D Avery |
Solicitors:
| First Plaintiff | : | Williams & Hughes |
| Second Plaintiff | : | Williams & Hughes |
| Defendant | : | Avery & Ashoorian Lawyers |
Case(s) referred to in decision(s):
Vallelonga v Sorgiovanni [2017] WASC 323
MASTER SANDERSON:
On 10 December 2019 the plaintiffs issued proceedings seeking an order that Geoffrey Donald Church be granted probate of the will of the late Evelyn May Marchesi (the deceased) who died on 3 August 2019. The first plaintiff is the son of the deceased and the half‑brother of the defendant.[1] The first plaintiff is the son of the late Alex Victor William Marchesi and the executor of his estate. [2] It is that capacity he sues as the second plaintiff. The defendant is the step‑daughter of the late Alex Marchesi.[3]
[1] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [1].
[2] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [2].
[3] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [3].
The second plaintiff and the deceased were co‑owners of a property in Wattle Grove.[4] The half interest the deceased held in that property is the only significant asset of her estate.[5] The deceased made a will in 2019 appointing the defendant as executor of her estate.[6] The plaintiffs say that is a valid will. The first plaintiff is not a beneficiary of the estate. The deceased's interest in the Wattle Grove property is left equally to the defendant and the deceased's other daughter, Sharon Lee Staniforth‑Smith.[7] For reasons not presently relevant the plaintiffs say the defendant is not the proper person to be the administrator of the deceased's estate. They lodged a caveat against the grant of probate and issued these proceedings. The plaintiffs say, and I accept, that it may well take up to 12 months to resolve the dispute between the parties.[8]
[4] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [2.4].
[5] Affidavit of Paul Alex Marchesi sworn 19 January 2020 [5]; Annexure PAM2.
[6] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [4].
[7] Writ of summons - will in solemn form (statement of claim) filed 10 December 2019 [6].
[8] Plaintiff's submissions filed 27 February 2020 [3].
On 29 January the plaintiffs issued a chamber summons seeking to have Mr Church appointed as the limited receiver of the real estate of the deceased. The effect of this order would be to make Mr Church the receiver of one‑half of the Wattle Grove property. Then, in concert with the second plaintiff, the Wattle Grove property can be sold. Ms Staniforth‑Smith supports that approach. It was opposed by the defendant.
After hearing argument I made orders appointing Mr Church as receiver. The actual form of the orders is of some importance and they are to be found at the end of these reasons. For the present I intend to explain why it was I made the orders sought by the plaintiffs.
The plaintiffs relied on eight affidavits. The most important of these was the first affidavit of the first plaintiff sworn 19 January 2020. He swore a second affidavit on 26 February 2020. Ms Staniforth‑Smith swore two affidavits, the first on 4 January 2020 and the second on 25 February 2020. The plaintiffs also relied upon an affidavit of Mr Church sworn 24 January 2020 and three affidavits of Cameron Joseph Sutton, the first sworn 13 February 2020, the second sworn 27 February 2020 and the third sworn 6 March 2020. The defendant swore an affidavit on 20 February 2020 in opposition to the application. While there was a significant amount of evidence relied on by both parties in fact the position was reasonably clear.
Both parties agreed the Wattle Grove property had to be sold.[9] It was the plaintiffs' position ‑ supported by Ms Staniforth‑Smith ‑ the defendant was obstructing the sale of the property.[10] The defendant denied that was the case. On balance the evidence favours the plaintiffs' position. There is a deep enmity between the first plaintiff and the defendant and they have not talked for some years. The first plaintiff says the defendant has obstructed the sale of the Wattle Grove property by not cooperating with real estate agents appointed to sell the property.[11] While there is some dispute between the parties as to the extent to which the defendant is cooperating in trying to sell the property it is telling that over a number of years little progress has been made. The position is now urgent.
[9] Affidavit of Paul Alex Marchesi sworn 19 January 2020 [8].
[10] Affidavit of Paul Alex Marchesi sworn 19 January 2020 [10] ‑ [11]; Affidavit of Sharon Lee Staniforth‑Smith sworn 4 January 2020 [3.3].
[11] Affidavit of Paul Alex Marchesi sworn 19 January 2020 [10].
The urgency arises because the property is subject to a mortgage to the National Australia Bank. The bank now requires repayment of the mortgage. Quite why this is so and the exact position of the bank is not clear from the evidence. But documents which are in evidence suggest the default notice issued by the bank has led to the mortgage being 'cancelled'. There is every reason to believe that in the near future the bank will move to realise its asset. The plaintiffs wish to sell the property before possession is taken by the bank and the bank effect sale. That is not an unreasonable position.
Apart from all of that, it is clear the defendant will not receive anything from the sale of the property. The money which was borrowed from the bank was paid to her and she has had any benefit she might have been entitled to from the estate. During the course of his submissions counsel for the defendant acknowledged this to be the case. Counsel went on to say that the reason why these proceedings are being defended is that the defendant wishes to give effect to her mother's testamentary intention as expressed in the deceased's will. With respect that would seem to be a course with no practical utility.
In Vallelonga v Sorgiovanni [2017] WASC 323 I appointed an independent and limited administrator and limited receiver of an estate. In those reasons I canvassed the relevant authorities and noted there was a marked reluctance on the part of courts to appoint interim receivers. It is perhaps understandable that courts have been loathed to interfere in the administration of estates by effectively usurping the role of an executor. But perhaps times have changed and there is a real need for the appointment of interim receivers or administrators to adequately protect the assets of an estate. This case is a clear example of when that can occur. A sale of the Wattle Grove property organised by Mr Church and the second defendant is a far preferable option to a sale by the bank after the bank takes possession of the property. It must be in the interests of the estate for that to occur rather than simply to allow matters to drift.
That said, the scope of the orders made must offer protection to the estate and those who have an interest in the estate. It was for those reasons that I made orders in the following terms:
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.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson28 APRIL 2020
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