Messina v Mariangela Rodi as Executor of the Estate of Virginia Silvestro (Dec)

[2012] WASC 110

MESSINA -v- MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC) [2012] WASC 110

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 110
Case No:	CIV:2500/2009	Heard:	ON THE PAPERS
Coram:	LE MIERE J	Delivered:	30/03/12
No of pages:	6	Judgment Part:	1 of 1
Result:	Extension of time granted
Category:	B
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Parties:	ELENA MESSINA MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC) ELENA MESSINA AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC) LOUI SIDORO SILVESTRO AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
Catchwords:	Practice and procedure Extension of time Inherent jurisdiction
Legislation:	Rules of the Supreme Court 1971 (WA), O 43 r 16, O 3 r 5
Case References:	Biala Pty Ltd v Mallina Holdings Ltd (1989) 21 WAR 381 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MESSINA -v- MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC) [2012] WASC 110 CORAM : LE MIERE J HEARD : ON THE PAPERS DELIVERED : 30 MARCH 2012 FILE NO/S : CIV 2500 of 2009 MATTER : the Administration Act 1903 (WA) s 45

the Will and Estate of Virginia Silvestro late of 354 Wanneroo Road, Madeley, in the State of Western Australia, Widow (dec)

BETWEEN : ELENA MESSINA

Plaintiff

AND

MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
First Defendant

ELENA MESSINA AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
Second Defendant

LOUI SIDORO SILVESTRO AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Extension of time - Inherent jurisdiction

Legislation:

Rules of the Supreme Court 1971 (WA), O 43 r 16, O 3 r 5

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance

Solicitors:

Plaintiff : Kitto & Kitto
First Defendant : Griffiths & Godecke
Second Defendant : Kitto & Kitto
Third Defendant : In person

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

Biala Pty Ltd v Mallina Holdings Ltd (1989) 21 WAR 381
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268


(Page 3)

1 LE MIERE J: Virginia Silvestro died on 10 May 2008. Probate of her last will and testament was granted to the defendants, Mariangela Rodi, Elena Messina and Loui Sidoro Silvestro on 10 December 2008. The principal asset of the estate is a property at 354 Wanneroo Road, Madeley on which Loui Silvestro and his brother, Francesco Silvestro operate a nursery and garden centre business.

The proceedings

2 The plaintiff, Elena Messina, is a daughter of the deceased and an executor of her estate to whom probate was granted. In August 2009 the plaintiff commenced proceedings by originating summons seeking orders that the defendants be removed as executors of the estate of the deceased and Mr Jeffrey Herbert be appointed as the executor for the estate together with ancillary orders.

The consent orders

3 Discussions and negotiations took place between the interested parties. This resulted in an agreement contained in or evidenced by a memorandum of consent orders pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC), dated 16 August 2011. The memorandum of consent orders was signed by solicitors for the plaintiff and for the defendants. The memorandum of consent orders provided for the grant of probate to the defendants to be revoked and Mr Herbert within 14 days to have leave to apply for letters of administration with will annexed of the unadministered portion of the estate of the deceased and that the registrar be directed to make such a grant upon his swearing to administer according to law. The memorandum of consent orders contained other terms relating to the sale of the property at 354 Wanneroo Road and for the payment of the costs of the action. A term of the memorandum of consent orders was that Loui Silvestro in his own capacity and not as executor of the estate pay the estate $16,000 upon the distribution of the net settlement proceeds of the sale of the property.

4 The matter came on for hearing before me on 16 August 2011. I was not satisfied that Mr Loui Silvestro consented to the making of the proposed orders in his personal capacity as well as in his capacity as an executor of the estate and adjourned the proceedings for that matter to be clarified. The matter came on for further hearing on 23 August 2011. On that occasion Ms Taylor appeared for Mr Loui Silvestro in his capacity as executor of the estate and in his personal capacity. Ms Taylor informed the court that Mr Loui Silvestro had given instructions in his personal capacity and in his capacity as an executor of the estate and in both

(Page 4)

capacities consented to the proposed orders. I then made, by consent, the orders proposed by the parties. The orders included:

1. The grant of probate of the will of Virginia Silvestro deceased made 10 December 2008 to [the defendants] be revoked.

2. [The defendants] deliver the grant revoked by the preceding order to the Court within 7 days of the date of this order.

3. Jeffrey Herbert, Accountant at PPB Advisory, within 14 days have leave to apply for letters of administration with will annexed of the unadministered portion of the estate of Virginia Silvestro and the Registrar be directed to make such a grant (without the necessity for any guarantees) upon his swearing to administer according to law.

4. Within 2 business days of the grant of letters of administration with the will annexed the administrator do select and appoint an agent to market and sell the property situated at and known as 354 Wanneroo Road, Madeley … on the following terms:


a. The Land be offered for sale by auction held not before 90 days after the first advertisement which shall be 14 days before the agent is first appointed.

…

5 On 8 November 2011 Mr Loui Silvestro filed a notice of intention to act in person and has represented himself in these proceedings since then.

Application to extend time

6 On 29 November 2011 the plaintiff applied for orders extending the time within which Mr Herbert have leave to apply for letters of administration. Mr Herbert had not applied for letters of administration within 14 days of the orders made on 23 August 2011, as provided for by those orders, because he had sought and obtained legal advice and conferred with the parties' lawyers regarding the orders. That process had taken some time and the 14 days had expired.

7 All of the parties, except Mr Loui Silvestro, consent to an extension of time. Mr Loui Silvestro does not agree to the extension of time.

Power to extend time

8 Order 3 r 5(1) of the RSC provides that the court may, on such terms as it thinks just, by order extend the period within which a person is required or authorised by these rules, or by any judgment, order or

(Page 5)

direction, to do any act in any proceedings. It has been held by the High Court that a provision such as O 3 r 5 is remedial and confers a broad power to relieve against injustice: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283 (Wilson J). In my opinion, orders 3 and 4 made on 23 August 2011 fixed a period within which Mr Herbert was authorised to do any act in any proceedings, the relevant proceedings being a working out of the order: see Biala Pty Ltd v Mallina Holdings Ltd (1989) 21 WAR 381, 386 (Malcolm CJ). The plaintiff and the first defendants submitted that the court also has power to extend the time for Mr Herbert to apply for letters of administration and to appoint an agent to market and sell the property pursuant to the court's inherent jurisdiction to make an order extending time. I find that the court does have such jurisdiction: Biala Pty Ltd v Malling Holdings Ltd (393) (Malcolm CJ) (397) (Brinsden J) (400) (Franklyn J).

Court should extend time

9 I am satisfied that the court should exercise its discretion to extend the time for Mr Herbert to apply for letters of administration and subsequently to appoint a marketing and selling agent for the property. The relevant orders were made pursuant to an agreement between all the relevant parties. Some of the orders have been carried into effect. The grant of probate to the defendants has been revoked. It was clearly the intention of the relevant parties that Mr Herbert be appointed administrator and subsequently appoint an agent to market and sell the property. It would appear to be the intention of the parties that those matters should be effected as soon as possible. However, those things could not be accomplished within the time provided for reasons beyond the power of the parties. Clearly, the unadministered portion of the estate of the deceased should be administered and administered as soon as possible. That requires the appointment of an administrator. The parties agreed that Mr Herbert should be appointed as administrator.

Mr Silvestro's submissions

10 Mr Loui Silvestro has made submissions to the court by email of 9 January 2012. Mr Silvestro states that he does not agree to the extension of time sought. Mr Silvestro's position appears to be based on a number of points. First, Mr Silvestro says that when he signed the consent orders he did so under duress as he was advised by his lawyer at the time that should he not consent to the orders he would be liable for the costs involved. It is not at all clear that that amounts to duress at law. In any event there is no application before the court to set aside the orders made by consent on 23 August 2011 on the grounds of duress.

(Page 6)

11 Secondly, Mr Silvestro says, in effect, that the time provided for in order 4 would also need to be extended because two business days following Mr Herbert's appointment is unlikely to be sufficient time to appoint an agent. Out of an abundance of caution, it is appropriate to extend the time provided for in order 4 to 14 days after the grant of letters of administration.

12 Thirdly, Mr Silvestro says that should Mr Herbert be appointed to administer the estate and the property at 354 Wanneroo Road is sold at below the highest offer that has been achieved so far then the plaintiff is running a risk of repercussions for any shortfall because the plaintiff did not accept a previous offer. Whether or not that is so it is not a reason not to extend the time within which Mr Herbert may apply for letters of administration.

13 Fourthly, Mr Silvestro says that the plaintiff and the other defendants have delayed in causing the consent orders made on 23 August 2011 to be effected. I find that the delay was caused by Mr Herbert seeking and obtaining legal advice and not by the plaintiff or the other defendants.

14 Finally, Mr Silvestro says that the plaintiff and the other defendants do not wish to fulfil the wishes of the deceased and that Mr Silvestro should be reinstated as an executor of the deceased's will. The appointment of Mr Herbert to administer the unadministered portion of the deceased's will will facilitate giving effect to the wishes of the deceased as set out in her will.

Conclusion

15 I am satisfied that in the exercise of its discretion the court should extend the time for Mr Herbert to apply for letters of administration and for him subsequently to appoint an agent. The appropriate orders are that the time within which Jeffrey Herbert have leave to apply for letters of administration with the will annexed of the unadministered portion of the estate of Virginia Silvestro under order 3 of the orders made on 23 August 2011 be extended until 28 days after the making of this order and that the time within which Jeffrey Herbert do select and appoint an agent to market and sell the property at 354 Wanneroo Road, Madeley be extended to 14 days after the grant of letters of administration.