Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda

[2018] NSWSC 1146

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda [2018] NSWSC 1146

Hearing dates:

24 July 2018

Date of orders:

24 July 2018

Decision date:

24 July 2018

Jurisdiction:

Equity

Before:

Emmett AJA

Decision:

See para [9]

Catchwords:

GUARDIANSHIP - protected person - financial management - change of manager - order for discharge of private manager - Order for appointment of NSW Trustee and Guardian as manager.

MENTAL HEALTH - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian.

PRACTICE - NSW Trustee and Guardian Act - protected person - appointment of manager of estate - change of manager - substitution of private manager for NSW Trustee and Guardian.

Legislation Cited:

Family Provision Act 1982 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Interpretation Act 1987 (NSW)

Category:

Procedural and other rulings

Parties:

Maria Coppola (Plaintiff)
New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (Applicant/First Defendant)
Carmelo Buda (First Respondent/Second Defendant)
Vanessa Coppola (Second Respondent/Estate Manager)

Representation:

Counsel:
E Tringali (Plaintiff)
G J Smith (Applicant/First Defendant)
P Hart (First Respondent/Second Defendant)
FFF Salama (Second Respondent/Estate Manager)

Solicitors:
Margiotta Solicitors & Attorneys (Plaintiff)
Lane & O’Rourke (Applicant/First Defendant)
Harper James Law Group (First Respondent/Second Defendant)

File Number(s):

2016/00377444

EX TEMPORE Judgment

1. HIS HONOUR: These proceedings are concerned with the estate of the late Giuseppina Buda (Giuseppina). The plaintiff, Maria Coppola (Maria), who is the daughter of Giuseppina, seeks a declaration that Giuseppina held her half share in a property situated in Stanmore (the Stanmore Property) on trust for her. The other half share in the Stanmore Property is held by Carmelo Buda (Carmelo), Maria's brother and the son of Giuseppina. Following the death of Giuseppina, NSW Trustee & Guardian (the Administrator) was appointed as administrator of her estate.

2. Carmelo is the sole beneficiary of the unadministered estate under the will of Giuseppina, which includes Giuseppina’s half share in the Stanmore Property. The effect of the principal claim made by Maria is that the Stanmore Property would be held as to a half share by each of her and Carmelo. As a fall back, Maria seeks a family provision order under the Family Provision Act1982 (NSW), which was in force at the time of the death of Giuseppina.

3. A difficulty has arisen because Carmelo does not have the capacity to defend the proceedings. Vanessa Coppola, Maria’s daughter (Vanessa), has been appointed as financial manager of Carmelo’s estate. However, Vanessa is in a position of conflict in that she has sworn an affidavit in support of her mother's claim against Carmelo. For some months there has been negotiation between the representatives of Maria and the Administrator with a view to the appointment of a tutor ad litem for the purposes of these proceedings in relation to the estate of Carmelo.

4. It is unnecessary now to go into the to-ing and fro-ing that has occurred in relation to those discussions but at present there is no tutor ad litem and the estate of Carmelo is not effectively represented in the proceedings. That resulted some months ago in the vacation of a hearing date.

5. In order to bring matters to a head, the Administrator by a notice of motion filed on 18 June 2018 sought the removal of Vanessa and the appointment of NSW Trustee & Guardian in her stead. When the motion was originally called on for hearing some two weeks ago, there was no appearance for Vanessa. After a short adjournment she appeared in person and indicated that she was taking steps to have a tutor appointed. When the matter was called on again this morning, following an adjournment, there was no evidence of the appointment of a tutor.

6. After further discussions, it appears that a compromise has been reached between Vanessa and the Administrator whereby Vanessa will be removed as financial manager of Carmelo’s estate and NSW Trustee & Guardian will be appointed in her stead. Counsel for Vanessa has indicated to the Court that she will consent to orders to that effect. However, she does so on the clear understanding, which her counsel has indicated in open Court, that when these proceedings are finally resolved, she will seek to be reinstated as financial manager of Carmelo's estate. Counsel for the Administrator has indicated that there may be no opposition to that course. However, that is a matter for consideration by the Court at the time when any application is made.

7. In the circumstances, I propose to make orders as sought by the Administrator. It should be understood that, in making those orders, it is not intended to release Vanessa from any breach of fiduciary obligation attaching to the office of manager of Carmelo’s estate up to the present time. In saying that, I should observe no allegation of any such breach has been made at this stage.

8. Since Carmelo is the only person interested in the unadministered estate of Giuseppina, the Administrator seeks no order as to the costs of the motion against Carmelo and the parties have agreed that there be no order as to the costs of the motion, to the intent that each party will bear his her or its own costs. Maria was represented on the hearing of the motion although she is not strictly a party to it. On the other hand, she has an interest in getting these proceedings on for hearing without any further delay.

9. Accordingly, I make orders in terms of prayers 1 to 7 of the notice of motion filed on 18 June 2018 and a direction for setting a hearing date as follows:

1. A declaration, pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW), that the First Respondent/Second Defendant Carmelo Buda remains incapable of managing his affairs.

2.   An order that the estate of the First Respondent remain subject to management under the NSW Trustee and Guardian Act 2009.

3. An order, pursuant to s 41 of the NSW Trustee and Guardian Act and s 47 of the Interpretation Act 1987 (NSW), that the Second Respondent, Vanessa Coppola, be removed as manager of the estate of the Second Defendant.

4. An order, pursuant to s 41(b) of the NSW Trustee and Guardian Act and s 47 of the Interpretation Act 1987, that the NSW Trustee and Guardian be appointed manager of the estate of the Second Defendant.

5. An order, pursuant to s 64 of the NSW Trustee and Guardian Act, that the Second Respondent take such steps as may be necessary or expedient to transfer management of the estate of the Second Defendant from herself to the NSW Trustee and Guardian.

6.   An order that the solicitor for the Applicant/First Defendant, within 14 days, provide a copy of the orders made to:

(a)   The Second Respondent Vanessa Coppola; and

(b)   The NSW Trustee and Guardian.

7.   An order that all parties and Respondents to this Notice of Motion be at liberty to apply, generally, as they may be advised.

8.   The matter be referred to the Equity Registrar’s list for directions on 6 August 2018 with a view to fixing a hearing date before me.

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Amendments

25 July 2018 - Correction to Catchwords on coversheet

Decision last updated: 25 July 2018