Pastrello v Saeedi

[2025] ACTCA 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Pastrello v Saeedi

Citation: 

[2025] ACTCA 18

Hearing Date: 

4 June 2025

Decision Date: 

6 June 2025

Before:

Muller AJ        

Decision: 

(1)  The application lodged on 7 May 2025 is dismissed.

(2)  Costs of the application are reserved.

Catchwords: 

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – application to expedite hearing of appeal – interests of justice – where expediting appeal would displace hearing of already allocated appeal – application dismissed

Legislation Cited: 

Court Procedures Rules2006 (ACT), rr 1311, 1401(4), 5437

Cases Cited: 

Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090

Parties: 

Luisa Sonia Pastrello ( First Appellant)

Eddy Louis Pastrello (Second Appellant)

Kamyar Saeedi (in his capacity as executor of the estate of the late Lorenzo Pastrello ( First Respondent)

Carl Lorenzo Pastrello (Second Respondent)

Christian Ivan Pastrello (Third Respondent)

Massimo Max Eddy Pastrello (Fourth Respondent)

Representation: 

Counsel

G Blank ( First and Second Appellant)

M Mascitti ( First Respondent)

W Sharwood (Second, Third and Fourth Respondent)

Solicitors

Thomson Geer ( First and Second Appellant)

Kamy Saeedi Law ( First Respondent)

KJB Law (Second, Third and Fourth Respondent)

File Number:

AC 3 of 2025

Decision Under Appeal: 

Court/Tribunal:          ACT Supreme Court

Before:   Mossop J

Date of Decision:       12 February 2025

Case Title:                Saeedi v Pastrello

Citation: [2025] ACTSC 26

MULLER AJ: 

EDITED EX TEMPORE REMARKS

Introduction

1․This is an application for expedition of the hearing of an appeal.

2․The trial judge gave his decision on 12 February 2025 and a Notice of Appeal was filed on 11 March 2025.

3․The primary proceedings concerned the validity of a will executed by the late Lorenzo Pastrello (Mr Pastrello) on 18 December 2020. Mr Pastrello died on 4 August 2021. There is a contest as to whether a grant of probate should be made in accordance with the disputed will, which divided Mr Pastrello’s assets amongst his children and grandchildren (the respondents’ position), or alternatively whether probate ought be granted in accordance with an earlier will executed in 1988 which made provision for Mr Pastrello’s children only (the appellants’ position).

4․The appeal raises 4 primary grounds, but in effect there are 24 separate grounds of appeal.

5․This application for expedition is made by the second, third and fourth respondents to the appeal, that is, the parties who were successful at trial. The application identifies prejudice to the parties as the primary ground upon which the application for expedition is based. To avoid confusion I shall hereafter refer to the applicants/respondents as “the applicants” and the respondents/appellants as “the respondents”.

6․An affidavit of Massimo Pastrello, affirmed on 7 May 2025, is read in support of this application, with the applicants also relying upon earlier affidavits of Massimo Pastrello, Kamyar Saeedi and Tamara Goodwin filed in these appeal proceedings in the context of the respondent’s application for a stay. The effect of the stay proceedings was that a stay of the decision of the trial judge was granted until further order.

7․The appeal proceedings are currently listed in the appeal callover on 10 September 2025 for consideration for inclusion in the Court of Appeal sittings in November 2025. The applicants seek the inclusion of the appeal in the appeal sittings scheduled to take place in the week commencing 4 August 2025. As the matter presently stands the earliest date upon which the appeal could be listed is 3 November 2025 with the appeal sittings scheduled to continue over a two-week period from that date. The effect of an order for expedition would thus be to bring forward the hearing of the appeal by some three months.

8․The present position is that a date for the hearing of the appeal has not been set. Rule 5437 of the Court Procedures Rules2006 (ACT) (the CPR) provides a mechanism for changing the date for the hearing of an appeal but in circumstances where a date has already been set. Rule 1311 of the CPR provides for the expedition of a trial and sets out the evidentiary requirements in support of an application for expedition in that context. As this is an application for expedition of an appeal hearing in circumstances where the appeal hearing date is yet to be set, I have proceeded on the basis that the applicants rely upon the general power of the court under r 1401(4)(c) of the CPR to make directions, including the setting of a timetable for the conduct of the hearing or any steps in the proceeding.

9․It is a matter of relevance that the dates for appeal hearings in August 2025 have been allocated to existing matters and there is no residual availability in that court list. As such, an order for expedition in this case would necessarily require the removal from the list of a matter already allocated a hearing date. Whilst the court has a broad discretion, a decision to remove a matter already set down for hearing, with the inevitable inconvenience to the parties in that matter, is not an action to be taken lightly.

10․The application is opposed by the respondents and I have the benefit of a written outline of their submissions. I am also assisted by the chronology prepared by the applicants, identifying critical dates pertaining to the history of the matter.

The applicants’ argument for expedition

11․The grounds for expedition identified in the application are:

(a)significant prejudice to the parties as a consequence of delay;

(b)consistency with the practice direction as to the timing of hearings; and

(c)interests of justice considerations.

12․Counsel for the applicants expanded on those grounds in oral submissions. He pointed in particular to the following matters:

(a)The size and complexity of the estate with property interests extending across the ACT and NSW (I understood this to be identified as a basis for expedition given the limitations arising from the management of the extensive estate by an interim administrator as opposed to the executor);

(b)The existence of three related proceedings in the NSW Supreme Court, each dealing with issues either bearing on the estate, or on some or all of the beneficiaries;

(c)The continued management of the estate assets via an interim administrator carried some limitations that would be alleviated by the transfer of those functions to the executor – an event that cannot take place until the appeal is determined (counsel for the applicants emphasised that no criticism was made of the conduct of the administration by the interim administrator, but rather the concern was directed to the limitation on her functions and on her knowledge of the estate relative to the appointed executor);

(d)The need to make decisions of significance in respect of estate assets, including pending decisions in respect of the development consent for the quarry located at the Sutton property, and the preference for those decisions to be taken by an executor with an intimate knowledge of the estate assets;

(e)The risk of deterioration in a number of the estates’ property assets whereby the lack of ongoing maintenance carries the risk of erosion of property values;

(f)The substantial legal costs associated with the prolonged interim administration, estimated to total approximately $280,000.00, without any allowance for counsel’s fees; and

(g)The advantages flowing to the estate from Mr Saeedi’s intimate knowledge of the financial affairs of the late Mr Pastrello.

13․The applicants submitted that these matters taken together supported the argument that it was in the interests of justice for the hearing of the appeal to be expedited.

The respondents’ argument opposing expedition

14․The respondents’ primary submission was that there was nothing arising from the material before the Court to indicate that a three-month acceleration in the hearing of the appeal would assist any of the parties other than in financial terms.

Complexity and limitations of interim administration

15․The respondents acknowledged that the estate is very complex and substantial. In terms of any particular limitations arising from the management of the estate by an interim administrator, as opposed to the nominated executor, neither of the parties addressed any specific points of difference in the powers of the interim administrator. It was at least implied from the administrator’s correspondence dated 3 June 2025, which was Exhibit 1 on the application, that there would, for example, be a need for the interim administrator to approach the Court for power to enter into the necessary documents to enable progress of the works at the Sutton quarry. The respondents noted that, other than the affidavit of Massimo Pastrello affirmed on 7 May 2025, the affidavit evidence that is before me formed part of the evidence before McWilliam J upon hearing of the stay application, and orders for a stay were made in circumstances where those orders had the effect of perpetuating the interim administration.

The related proceedings

16․The first of the related proceedings concerns a claim brought by the administrator of a company, Gratory Pty Ltd, owned by the late Mr Pastrello. The claim is brought against a former business associate of Mr Pastrello who is alleged to have defrauded the company of in excess of $4 million dollars. The claim is also brought against the estate on the basis of allegations of fiduciary breaches by the late Mr Pastrello. The criminal proceedings against the former business associate are yet to be determined and it is submitted that no urgency attaches to those civil proceedings.

17․The second proceedings are also brought by the same company, Gratory Pty Ltd and involve a range of allegations against, inter alia, the estate, including an allegation of misappropriation of funds. As those proceedings are brought and maintained by the receiver of Gratory Pty Ltd it is submitted that they do not involve the need for any strategic decisions by the estate at this time.

18․The last of the identified proceedings are dormant pending determination of this appeal.

The need to make significant financial decisions

19․The primary concern raised by the applicants was that of the Sutton quarry and the impending expiry of a current development consent in the absence of some physical work being undertaken at the property. In the course of submissions counsel for the applicants conceded that it was not the case that no action could be taken by the interim administrator but that the process would be able to be managed more efficiently through the executor. The respondents, with reference to Exhibit 1, highlighted that the administrator was actively taking steps, including steps in relation to the Sutton quarry and the issues to be addressed in association with the development consent were clearly in her contemplation.

20․In the course of submissions, it was acknowledged by both parties that the time frames were such that it was most unlikely, even with an expedited appeal hearing, that the executor would be in a position to take any particular steps in relation to the Sutton quarry prior to the expiry of the current development consent in September.

Risk of deterioration in value of assets

21․The respondents relied upon the affidavit of Ms Goodwin in support of the contention that whilst there is work to be done at a number of the properties, there were also limited cash funds available to address those works.

22․It was submitted that the properties were either tenanted and subject to management or they were in need of substantial repairs for which funds were not presently available. As a consequence the respondents contended that there is no particular urgency regarding the management of the property assets.

Substantial and ongoing legal costs

23․There was no contention raised before me about the quantum of costs to date that are referred to in the affidavit of Ms Goodwin affirmed on 26 March 2025. Those costs are clearly substantial, and continuing.

24․The respondents noted that the executor is a legal practitioner who is empowered in accordance with the terms of the will to charge for the provision of his services as executor. There is no evidence before me as to the prospective charges to be raised by the executor, if any, and how they might compare with the fees incurred as a result of the provision of services by the interim administrator.

Consideration

25․The determination of this application for expedition involves an exercise of the Court’s discretion, in circumstances where the effect of allowing expedition necessarily displaces an appeal that has already been set down in the August sittings.

26․In the exercise of discretion, it is necessary to have regard to the facts of the case and the matters of particular relevance arising from the evidence before me are:

(a)Although the estate is large and complex and requires ongoing significant management, there is no suggestion that it is currently being mismanaged; rather, that the management of the assets may well be facilitated by the transfer of responsibilities to the executor;

(b)The administration is incurring significant legal costs, but the fees that may be rendered by the executor are not in evidence;

(c)There are no pending significant financial or strategic decisions that are beyond the power of the administrator or are otherwise demonstrated to be thwarted where expedition is not granted;

(d)Although there are related legal proceedings, none have been demonstrated to be significantly negatively impacted by a delay of 3 months in the hearing of the appeal; and

(e)Although a delay of 3 months in the hearing of the appeal may have some negative impact on the value of the assets of the estate as a consequence of issues related to maintenance and upkeep, the cash funds presently available to the estate are unlikely to enable any works to commence in a timely manner regardless of the delay.

27․In Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [19], Kenny J observed;

The factors falling for consideration in the exercise of the Court’s discretion will depend, at least in part, on the particular case.  Such factors may include whether, if the hearing did not take place at the earliest convenient time or prior to a particular date, the appellant would suffer some significant practical disadvantage, or a party would suffer some irreparable loss or especially significant hardship, such as the loss of livelihood, business or home. Other factors include a serious detriment to good public administration or to the interests of others not party to the appeal.

28․I accept that it is frustrating for the applicants that, having succeeded before the trial judge, they are prevented from pursuing the further administration of the estate as a consequence of this appeal.

29․I am not satisfied that the position of the applicants is such that it is in the interests of justice to allow expedition of the appeal hearing.

Orders

30․I therefore make the following orders:

(1)The application lodged on 7 May 2025 is dismissed.

(2)Costs of the application are reserved.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate:

Date: