Moorcraft v Fazio - [2023] WASC 406

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MOORCRAFT -v- FAZIO [2023] WASC 406
CORAM:   HOWARD J
HEARD:   25 OCTOBER 2023
DELIVERED          :   25 OCTOBER 2023
FILE NO/S:   CIV 1781 of 2023
BETWEEN:   DAVID LESLIE MOORCRAFT
First Plaintiff
DIANE MARY SELLEY
Second Plaintiff
AND
GIACOMO FAZIO
Defendant
GIACOMO FAZIO
Plaintiff by counterclaim
DAVID LESLIE MOORCRAFT
DIANE MARY SELLEY
Defendants by counterclaim

Catchwords:

Application to prove a will in solemn form - Application to appoint interim administrator and receiver - Application allowed

Legislation:

Administration Act 1903 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

First Plaintiff	:	N J Siegwart
Second Plaintiff	:	N J Siegwart
Defendant	:	A D Hornsey
Plaintiff by counterclaim	:	A D Hornsey
Defendants by counterclaim	:	N J Siegwart

Solicitors:

First Plaintiff	:	Birman & Ride
Second Plaintiff	:	Birman & Ride
Defendant	:	Springdale Legal
Plaintiff by counterclaim	:	Springdale Legal
Defendants by counterclaim	:	Birman & Ride

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

Cherrycoast Enterprises Pty Ltd v Roberts [2002] WASC 28
Fazio v Fazio [2010] WASC 263
Farano v Arcaro [2021] WASC 461
Nelson v Moorcraft [2014] WASCA 212

HOWARD J:

At the conclusion of the hearing on 25 October 2023, I was unable to deliver ex tempore reasons despite being in a position to do so.
At the hearing, the defendant was represented by his solicitor by telephone link and sat at the Bar table (with another person) in Court.
At the conclusion of the defendant's submissions as made by his solicitor, the defendant sought to address the Court. Ultimately, the defendant would not resume his seat or stop speaking and I was unable to deliver my reasons or complete the hearing in an orderly way.
The following are my reasons.
Peter Moorcraft died on about 24 February 2023.[1]
[1] Statement of Claim [1].
The plaintiffs are his siblings and are the residual beneficiaries of the deceased's estate in equal shares.[2]
[2] Statement of Claim [4.2].
By a writ endorsed with a statement of claim dated 20 July 2023, the plaintiffs seek to prove the deceased's will (2020 Will).
The plaintiffs claim in the alternative that if it were to be found 'for any reason' that the 2020 Will was not effective, certain relief should be granted on the basis of the deceased's intestacy.[3]
[3] Statement of Claim [9].
The 2020 Will appointed the defendant to be the executor.
Although named as the executor, the defendant does not hold a grant of probate.
The statement of claim also pleads that the defendant should be passed over as executor of the 2020 Will as (without the provided particulars):
… having the Defendant remain in that role would:
8.1not be in the best interests of the beneficiaries of the Estate (the Plaintiffs);
8.2put the security of Estate property at risk; and
8.3not result in an efficient and satisfactory execution of the 2020 Will and a faithful and sound exercise of the power of the office.
By chamber summons dated 30 August 2023, the plaintiffs have applied for the appointment of an interim administrator pursuant to s 35 of the Administration Act 1903 (WA) and O 73 r 22. They seek that Mr Blatchford be appointed the administrator and receiver of the deceased's estate pending the determination of this action.
The plaintiffs provided a further Minute of Proposed Orders today.
In addition, the plaintiffs relied on an affidavit of Nigel Jerome Siegwart made 30 August 2013 and submissions dated 20 September 2023.
The defendant relied on his affidavit made 19 September 2023 and on submissions dated 11 October 2023.
Prior to the hearing, the defendant also sought to hand up a six‑page document (not an affidavit) which I read prior to coming into Court. As I explained in Court, I do not consider that the document is admissible, nor relevant. I indicated to the defendant that I did not intend to make a decision based on questions of the defendant's previous bankruptcies or involvements with corporate insolvencies, nor on general observations as to the defendant's character. However, for ease of reference I have marked the six‑page document 'MFI 1'.
The principal asset of the deceased's estate is land at Robinson Road, Robinson, a suburb of Albany (Property).[4]
[4] Affidavit of Giacomo Fazio made on 19 September 2023 at GF-1.
The significance of that is the Property is the subject of different proceedings in this Court, namely, CIV 1304 of 2023, where Peter Nelson as plaintiff has sued Mr Fazio (CIV 1304 of 2023).
In CIV 1304 of 2023, Mr Nelson alleges that on about 8 November 2020 Mr Fazio entered into a contract with the deceased for the purchase of the Property.[5] That is admitted by Mr Fazio.[6]
[5] CIV 1304 of 2023: Statement of Claim [2].
[6] CIV 1304 of 2023: Defence and Counterclaim dated 11 September 2023 [1].
Mr Nelson further alleges that the effect of the admitted purchase contract would be:
1.to sell the Property to Mr Fazio at an under-value;[7]
2.reduce the deceased's estate's ability to meet the separate claims which Mr Nelson has against the deceased's estate, and in respect of which it is said the Court of Appeal in Nelson v Moorcraft [2014] WASCA 212 [158] has recognised gave Mr Nelson an equitable lien over the deceased's estate and interest in the Property.[8]
[7] CIV 1304 of 2023: Statement of Claim [10(a)].
[8] CIV 1304 of 2023: Statement of Claim [10(b)].
Mr Fazio by his defence in CIV 1304 of 2023 disputes that the purchase was at an under-value.
Further, in these proceedings the plaintiffs also plead that:
1.the purchase contract is at an under-value: particular (b)(ii) to [8] of the statement of claim; and
2.the defendant (Mr Fazio) claims to be owed moneys by the deceased's estate: particular (a)(iii) to [8] of the statement of claim.
As may be seen immediately, Mr Fazio via the purchase contract and the proceedings in CIV 1304 of 2023 has a personal interest in the principal asset of the Estate and that interest is in dispute in CIV 1304 of 2023.
Further, Mr Fazio has lodged two caveats in his personal capacity over the Property:
1.caveat 0379937 dated 11 December 2019 which is said to be made pursuant to a 'charge contained in an agreement' between the deceased and Mr Fazio: attachment NJS4 to Mr Siegwart's affidavit;
2.caveat 0379953 dated 11 December 2019, which is said to be pursuant to an 'agreement … providing an option to purchase' between the deceased and Mr Fazio: NJS5 to the affidavit of Mr Siegwart.
The plaintiffs raise in support of their application to appoint an interim administrator various other matters which go to Mr Fazio's character or suitability:
1.by reference to a statement made to the police: NJS11 to Mr Siegwart's affidavit;
2.his previous personal bankruptcies and directorships of companies which have entered into external administration: Mr Siegwart's affidavit [8] and the attachments: NJS‑23 ‑ NJS‑30; and
3.adverse comments made by Judges of this Court about Mr Fazio's credibility: Cherrycoast Enterprises Pty Ltd v Roberts [2002] WASC 28 [54] (McKechnie J); Fazio v Fazio [2010] WASC 263 [94], [151] (Martin CJ).
The plaintiffs, also, make complaint that from the date of the deceased's death to the date of the chamber summons of 30 August 2023, Mr Fazio had not organised a burial or cremation of the deceased and his body remained at the mortuary at Fiona Stanley Hospital.[9]
[9] Statement of Claim [8.3(f)].
There is some factual controversy as to why the deceased's body had not been appropriately dealt with.
Without going into the other matters set out in [25] - [27] above, it seems to me that Mr Fazio's continued administration of 2020 Will or the estate will require him to navigate his very significant apparent conflicts of interest and duty in circumstances where there is apparently no trust between him and the plaintiffs.
Mr Fazio is a defendant personally in CIV 1304 of 2023 in relation to the principal asset of the estate (the Property), while at the same time, via the caveats, taking an adversarial position against the estate which he is to administer.
There appears to be some very limited recognition of the defendant's potential conflict by the defendant's submissions of 11 October 2023 [2] where a proposal was made that the defendant ought remain as executor jointly with Mr Blatchford. The proposal appears to be that where the defendant has a potential conflict, then Mr Blatchford will act alone to administer the estate.
It seems to me that it is prudent, in all of those circumstances, for there to be an interim administrator appointed as per the plaintiffs' chamber summons. Within the language of the authorities,[10] I consider that there is 'a sufficient reason' to make the appointment pursuant to s 35 of the Administration Act and O 73 r 22. I do not consider that any joint appointment as suggested would be a preferable course.
[10] See for example Farano v Arcaro [2021] WASC 461 [39] (Strk J).
I will make orders in terms of the plaintiff's Minute dated 25 October 2023, save that I will not yet make Order 6 as I wish to hear the parties further on the question of costs - my preliminary view is that the defendant personally ought pay the plaintiffs' costs in any event. That preliminary view flows from what I regard to be the position the defendant is in of an obvious potential conflict which supports the making of the Orders. I will further grant liberty to apply so as to allow me to program these Proceedings more generally.
I note, for the sake of completeness, that I have not taken into account the defendant's behaviour in Court this afternoon in making the Orders which I do.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
25 OCTOBER 2023