Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto

Case •

[2019] NSWSC 1454

•

22 August 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Pilotto v Cosoleto; Papi & Papi v Cosoleto and Cosoleto v Cosoleto [2019] NSWSC 1454
Hearing dates: 19 – 22 August 2019
Date of orders: 22 August 2019
Decision date: 22 August 2019
Jurisdiction:Equity
Before: Hallen J
Decision:

See Paragraphs [327] – [329]

Catchwords:

CIVIL PROCEDURE – Hearings – Order that proceedings be heard together – Three separate proceedings, each seeking a family provision order out of the same estate – Because of late commencement of the third proceedings parties do not all agree that the three proceedings should be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – All proceedings involve “a common question” and it is otherwise “desirable to make an order” under the rule

 

SUCCESSION – Family Provision – Four different Plaintiffs, a former de facto partner, a previous former de facto partner, a daughter, and a grandson, of the deceased, apply, in different proceedings, for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is the executor of the Will of the deceased – The son of the deceased (who is the father of the grandson) is the sole beneficiary named in Will – No provision made for each Plaintiff – Estate of moderately large value – Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made

SUCCESSION – Family Provision – Grandson’s claim out of time – Proceedings commenced three working days before hearing – Extension of time for the making of the application required in respect of the grandson’s claim – Parties to the proceedings consent to the application being made out of time pursuant to s 58(2) of the Succession Act­
Legislation Cited: Civil Procedure Act 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Charlwood v Charlwood [2017] NSWSC 1033
Christie v Manera [2006] WASC 287
City of Sydney Council v Satara [2007] NSWCA 148
Condello v Kim [2018] NSWSC 394
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Geoghegan v Szelid [2011] NSWSC 1440
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Grey v Harrison [1997] 2 VR 359
Hamod v New South Wales [2011] NSWCA 375
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)
Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221; [2011] FCAFC 34
Kay v Archbold [2008] NSWSC 254
Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759
Lodin v Lodin [2017] NSWCA 327
MacGregor v MacGregor [2003] WASC 169
Majak v Rose (No 6) [2017] NSWCA 262
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Michael John Askew v John Paul Askew [2015] NSWSC 192
Nicholas v Tubb [2016] TASSC 53
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122; [1973] VicRp 10
Ren v Jiang (No 2) [2014] NSWCA 119
Salmon v Osmond [2015] NSWCA 42
Sam Wardy v Gordon Salier; William Wardy v Gordon Salier; Hassiba Wardy v Estate of late Edmond Wadih Wardy, developer and Ch 3 of the Succession Act 2006 & Anor [2014] NSWSC 473
Sassoon v Rose [2013] NSWCA 220
Sgro v Thompson [2017] NSWCA 326
Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Stanizzo v Badarne & Ors [2014] NSWSC 689
Steinmetz v Shannon [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Sung v Malaxos [2015] NSWSC 186
Sydney City Council v Ke-Su Investments Pty Ltd
Szypica v O’Beirne [2013] NSWSC 297
Taylor v Farrugia [2009] NSWSC 801
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Toscano v Toscano [2017] NSWSC 419
Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) (No 2) [2013] NSWSC 1971
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Wilcox v Wilcox [2012] NSWSC 1138
Yee v Yee [2017] NSWCA 305
Zagame v Zagame [2014] NSWSC 1302
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Australian Journal of Legal History
Category:Principal judgment
Parties:

2018/170958
Maria Pilotto (Plaintiff)
Carmine Cosoleto (Defendant)

 

2018/248634
Luella Papi (first Plaintiff)
Milvia Papi (second Plaintiff)
Carmine Cosoleto (Defendant)

  2019/252712
Giuliano Cosoleto (Plaintiff)
Carmine Cosoleto (Defendant)
Representation:

Counsel:
2018/170958
Mr M Thompson (Plaintiff)
Mr N Kirby (Defendant)

 

2018/248634
Ms L Clarke (Plaintiffs)
Mr N Kirby (Defendant)

 

2019/252712
Mr T J Morahan (Plaintiff)
Mr N Kirby (Defendant)

 

Solicitors:
2018/170958
Gerard Malouf & Partners (Plaintiff)
LCI Legal (Defendant)

 

2018/248634
PB Ritz Lawyers (Plaintiffs)
LCI Legal (Defendant)

  2019/252712
Premier Compensation Lawyers (Plaintiff)
LCI Legal (Defendant)
File Number(s): 2018/170958, 2018/248634 and 2019/252712

Judgment

Introduction to the Proceedings

  1. HIS HONOUR: This judgment concerns the estate of Rosario Cosoleto (“the deceased”), who died on 18 September 2017, and the various claims for a family provision order sought out of his estate and notional estate.

  2. For hearing, in the Family Provision Running List, commencing on Monday, 19 August 2019, were two different actions, being proceedings 2018/170958 and proceedings 2018/248634. In the first of the proceedings, the sole Plaintiff, Maria Pilotto, is a person with whom the deceased had been living in a de facto relationship, at different times, until 2016. There is no dispute that her relationship with the deceased did not continue, as such, thereafter.

  3. In the second of the proceedings, the Plaintiffs are Milvia Papi, a person with whom the deceased had been living in a de facto relationship, in the early 1970’s, and her and the deceased’s daughter, Luella Papi, a now adult child of the deceased. (Their second child, Tania, did not commence any proceedings, and played no role, as a party, or a witness, in the proceedings that were commenced by her mother and sister.)

  4. On 22 February 2019, both proceedings were set down, for hearing, in the August Family Provision Running List, with a combined estimated duration of three days.

  5. The Defendant named in each of the proceedings is Carmine Cosoleto, the executor named in the deceased’s last Will. He is the nephew of the deceased and is not a beneficiary named in that Will.

  6. Hereafter, I shall refer to the parties by her, or his, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity.

  7. On 14 August 2019, that is three working days before the commencement of the hearing, Ms Rachel Carey, a senior Associate at Premier Compensation Lawyers, sent an email to the Court, at 2:21 p.m., which stated:

“Please find attached our Summons.

We would be grateful if you could have the matter listed tomorrow or Friday noting the urgency.”

  1. The copy Summons attached to the email from Ms Carey identified the Plaintiff as Giuliano Cosoleto and showed that the Summons had been filed earlier on the same day. The Plaintiff’s relationship with the deceased was not disclosed and no affidavit, by the Plaintiff, in support of the Summons, was then provided (although there was an affidavit, by Ms Carey, on information and belief, to which was annexed a draft, incomplete, and unsworn affidavit of Giuliano).

  2. The email sent to the Court by Ms Carey did not appear, on its face, to have been sent to any of the other legal representatives in that, or the associated, proceedings. This is a matter to which I shall return.

  3. At my request, my Associate, at 4:25 p.m. on 14 August 2019, sent an email, addressed to Ms Carey, and to all of the legal representatives in both of the other proceedings, informing them that all three matters had been administratively listed, before the Court, at 10:15 a.m. on Thursday, 15 August 2019.

  4. On 15 August 2019, counsel for each of the parties, in the three matters, appeared. Mr M Thompson appeared for Maria; Ms L Clarke appeared for Milvia and Luella; Mr T Morahan appeared for Giuliano; and Mr N Kirby appeared for Carmine, in each of the proceedings. Each continued to appear, subsequently, throughout the hearing.

  5. Due to the urgency of the application, none of the parties objected to the matters being listed without there being a notice of motion identifying any interlocutory relief being sought.

  6. Mr Morahan sought, and was granted, leave to file in Court an affidavit sworn 14 August 2019 by Ms Carey, in which she averred that Giuliano had contacted her firm on 7 August 2019 “to obtain advice with respect to a possible Family Provision Claim”. He had given instructions that he was a grandchild of the deceased and that he had been “a member of the deceased’s household for several years”.

  7. Ms Carey also disclosed in the affidavit that, following receipt of instructions, she had sent a letter, dated 8 August 2019, to LCI Legal, the firm of solicitors acting for Carmine, requesting certain information about the estate of the deceased.

  8. On 12 August 2019, a response had been received from LCI Legal, under the signature of Mr P Costa, solicitor. The information sought was provided and the fact that the other proceedings had been listed, for hearing, on 19 August 2019, was specifically stated. (It will be necessary to refer to another part of this letter later in these reasons.)

  9. Also attached to Ms Carey’s affidavit, was the draft, incomplete, affidavit of Giuliano. Importantly, it was disclosed that Giuliano was the son of Rosario Carmine Cosoleto (who was referred to in the proceedings as “Saro”). He is the sole beneficiary named in the Will of the deceased. In these reasons, he is referred to as “Ross” or “Saro” interchangeably.

  10. Mr Morahan did not make entirely clear the nature of the then application being made on behalf of Giuliano. It seemed to me that he was leaning towards seeking an order that the hearing of the other matters be vacated so that further investigations could be made, and evidence adduced, and served, on behalf of Giuliano. However, he did not expressly make such an application. No doubt, he appreciated the difficulties that such an application might face, not the least of which might be an order that the costs thrown away, in each of the other proceedings, if such an application were granted, should be paid by Giuliano.

  11. Nor did Mr Morahan submit that if the hearing dates were not vacated, there would be difficulty in serving the evidence upon which Giuliano intended to rely. Indeed, he stated that the evidence would be served by noon on the following day (Friday, 16 August 2019). On the first day of the hearing, it was confirmed that the evidence had been served on “Friday afternoon”: Tcpt, 19 August 2019, p 2(17-18).

  12. There was no ambiguity in Mr Thomson’s response. He stated that Maria opposed any application for the hearing dates to be vacated and submitted that Giuliano’s proceedings should be summarily dismissed, an application that, in the circumstances, could not possibly succeed. His response became more forceful when it was pointed out, by Mr Morahan, that Giuliano wished to challenge Maria’s evidence about the duration of her relationship with the deceased, a challenge that Mr Thomson asserted Maria could not meet so close to the hearing.

  13. Ms Clarke submitted that, depending upon the evidence that was served, she could deal with the claim being brought by Giuliano. She did not wish to have the hearing dates vacated.

  14. Mr Kirby also submitted that he did not wish to have the hearing dates vacated and affirmed that he would do his best to deal with Giuliano’s evidence. He specifically stated that he could cross-examine Giuliano on any affidavit that was subsequently served.

  15. Mr Kirby acknowledged that written notice of the other Plaintiffs’ applications, and of the Court's power to disregard his interests, had not been served on Giuliano, in the manner and form prescribed by the regulations or rules of court. He submitted, however, that it had not been thought that Giuliano was, or may have been, an eligible person, and that Giuliano had not been identified, as such, in the notice of eligible persons that had been served on behalf of each of the other Plaintiffs. (There was evidence given at the hearing about reasons why that had not been done to which I shall refer.)

  16. Following the submissions, I asked Mr Morahan why the proceedings had been brought so late, and in circumstances where the sole beneficiary was the father of Giuliano. He responded that his instructions were that Giuliano did not know of his rights to make a claim for a family provision order; that Saro and Giuilano did not, then, have a close relationship; and that any claim for a family provision order was unlikely to be able to be resolved between them.

  17. (In evidence, subsequently given at the hearing, Giuliano stated that he did not trust Saro and that “I had many promises broken to me over the years so I thought the legal way was the only way”: Tcpt, 20 August 2019, p 179(11) – p 180(12).)

  18. The Civil Procedure Act 2005 (NSW), s 66, specifically, deals with adjournments and permits the Court to vacate a hearing. The section provides:

“Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2)   …”

  1. This is a "wide and ample power, the principal consideration being what is necessary to do justice between the parties: Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246 at 252, per Kirby P; Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 (at 39) Farwell J (‘the court has an inherent power to direct that any matter which comes before it should stand over for a period if the court thinks that that is the proper way to deal with the matter’)”: City of Sydney Council v Satara [2007] NSWCA 148, per McColl JA (with whom Beazley JA and Tobias JA agreed), at [17].

  2. The exercise of the discretion in s 66 is also subject to the principles of case management set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

  3. There can be no doubt that, whilst the power given to the Court in s 66 confers a wide discretion, it is one that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The Court, also, must be cognisant of s 59 of the Civil Procedure Act, which provides that:

“Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.”

  1. The Court must also remember s 57 of the Civil Procedure Act, which, predominately, relates to the efficient management of the Court’s business, namely:

“Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).”

  1. The overriding purpose referred to, as is well known, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The considerations that must be taken into account include the prejudice to the respondent(s) by such an adjournment; the prejudice to the applicant if an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in Court: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174, per Ward JA (as her Honour then was), at [13]; Ren v Jiang (No 2) [2014] NSWCA 119, at [5].

  2. In relation to the last matter mentioned by Ward JA, the waste of public resources and the inefficiency occasioned by the need to vacate hearing dates cannot be forgotten. As has also been written, the Court should not readily accede to an application to vacate because “the public interest in the efficient dispatch of the business” of a court affects a number of litigants that have already been forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262, at [18].

  3. Furthermore, from the parties’ perspective, there would be a significant delay as the likely new hearing dates, if the hearing dates are vacated, would not be until June, or July, 2020. As well, any order to vacate the hearing dates would result in delay in the overall administration of the deceased’s estate.

  1. In addition to all of the above matters, the Court remembered that further costs would be incurred in having the matters prepared, again, for a fresh hearing and that additional time for the hearing might be required. The costs thrown away by vacating the hearing dates would also be likely to be significant.

  2. Naturally, the Court must also consider that a refusal of an adjournment might result in a party being unable to adequately present her case, with the consequence that there may be a miscarriage of the Court’s discretion: Cohen v McWilliam (1995) 38 NSWLR 478 at 481, 491, 497-503; Thornberry v The Queen (1995) 69 ALJR 777.

  3. Having heard the submissions, and having regard to the facts to which I have referred, and the principles set out above, I came to the view that the proceedings, including the proceedings brought by Giuliano, ought to proceed, and that any questions of prejudice would be able to be dealt with, and remedied, at the hearing. To do otherwise would be inimical to the interests of all of the parties.

  4. (The hearing of all three matters, in fact, proceeded relatively smoothly, no doubt, in part, due to the way in which the legal representatives conducted the cases. In this regard, all are to be commended.)

  5. Finally, on this aspect, I should mention that it came as somewhat of a surprise, when, on Friday, 16 August 2019, not only was Giuliano’s affidavit served, but there was also an affidavit sworn, on 15 August 2019, by Saro, seemingly, in support of Giuliano’s application for a family provision order. (This raised a real question why the proceedings had been continued in circumstances where the sole beneficiary has it in his own power to resolve any question of provision being made for his own son.)

Correspondence with the Court

  1. I have found it necessary to mention this matter, as it seems to me that the email correspondence addressed to the Court without the apparent consent, approval, or, indeed, knowledge, of opposing parties, and/or without it being sent simultaneously to the legal representatives of other parties, is reaching epidemic proportions.

  2. In the first email to the Court, Ms Carey did not state that she had sought the consent, or approval, of Carmine’s solicitors to send the email, or that she had sent a copy of her email, addressed to the Court, to the legal representative of any other party. Nor did the email sent to the Court otherwise identify any other legal representative to whom the email had been sent. (It may be, in relation to the solicitors appearing for the other Plaintiffs, she did not know their identity.)

  3. On 16 August 2019, when the copy affidavits and submissions were sent to the Court, again, it did not appear, from the email, that Ms Carey had sent a copy of the email sent to the Court to the legal representative of each of the other parties. By this date, of course, she would have been well aware of the identity of those legal representatives.

  4. In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) (No 2) [2013] NSWSC 1971, Kunc J, wrote at [21]-[22]:

“There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:

(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);

(2) ex parte matters;

(3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and

(4) exceptional circumstances.

There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.”

  1. In Stanizzo v Badarne & Ors [2014] NSWSC 689, Robb J, after referring to what Kunc J had written in Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) (No 2), noted, at [75]-[80]:

“…However, it may be of some use for me to advert to a number of practical considerations, which underscore the need for scrupulous attention to be given to the manner in which communications are sent directly to a judge's chambers.

As Kunc J noted, it is a ubiquitous practice for the medium of the email to be used. That means that, in the absence of the email containing positive statements that identify the persons to whom the email has been sent, other than the judge's associate, the determination of that issue requires that the email addresses in the 'cc' and 'bcc' parts of the email heading be deciphered. That process may requires guesswork, as often email addresses are obscure as to the identity of the addressee. Further, it cannot always be assumed that the associate will have the court's file in chambers. If the file is not readily available, the associate will have difficulty working out the identities of the parties to whom a particular email must be sent, if all necessary recipients are to receive a copy. Even if the court's file is available, it can be a difficult exercise, in advance of appearances being announced for the parties at the commencement of the hearing, for the associate to work out with confidence who the relevant parties are, and who the legal representatives are.

If a party who contemplates sending an email communication directly to a judge's associate is not meticulous in stating in an obvious way who is entitled to receive copies of the email, and who has received those copies, it may not be possible for the associate to determine whether a proper approach has been adopted, having regard only to what appears on the face of the email.

Furthermore, it is not expected of a judge's associate that the associate will always be in a position to make a proper judgment as to whether or not it is appropriate for a particular communication, or attachment to a communication, to be brought to the attention of the judge. Associates have a right to the guidance of their judge. That has the result that, when communications are forwarded to an associate, there will always be a likelihood that the communication will be brought to the attention of the judge. Unless the judge adopts a procedure of refusing out of hand to receive and review all communications received in chambers from parties, which is not a practical or desirable course, there will always be a likelihood that the judge will receive and review a document that actually, or apparently, may compromise the impartiality of the judge. Judges are human and are no more able to divine the contents of documents without reading them, than are other people. The risk always is that, in an attempt to determine the significance of a document, the judge may not be able to avoid reading parts of the document that should not be read.

The act of a legal practitioner in communicating directly with a judge's chambers must not be viewed as some casual, post-modern opportunity to provide useful information, but is a step that must be taken with great care, lest the impartiality of the judge be carelessly compromised. Legal practitioners should discuss the proposal to communicate with the judge's chambers in advance with the representatives of all active parties. The consent to the proposal from all parties should be obtained. Copies of the communication should be sent to all concerned, at the same time as it is sent to the associate. If consent is not forthcoming, the suitability of the time-honoured approach of arranging with the associate for the matter to be re-listed should be considered. If urgency precludes that approach, any communication to the judge's chambers should explain the problem, without disclosing any information for which unanimous consent for disclosure to the judge has not been obtained, and appropriate directions sought from the judge.

Ultimately this is an ethical issue that depends upon legal practitioners taking the greatest of care to comply with their obligations. It is always possible that exceptional situations will arise, that will require a novel course to be adopted. That should not give rise to problems, provided that legal practitioners consider in a conscientious way how they should proceed.”

  1. Of course, as was written above, there are occasions when a party’s unilateral communication with the trial Judge’s Chambers in relation to procedural, administrative, or practical, matters, is not improper. However, “a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason”: John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221, at 227; [2011] FCAFC 34, at [22].

  2. At the commencement of the hearing, when I raised this matter, Mr Morahan, after obtaining instructions from Ms Carey, without objection, informed me that the email correspondence from his instructing solicitors to which reference was made, had, in fact, been sent to the other legal representatives. Of course, I accept the statement made, from the Bar table, by counsel on instructions from his instructing solicitor. (I also make clear that I do not suggest that the email correspondence was sent by Ms Carey “with a view to influencing the conduct or outcome of the case”: John Holland Rail Pty Ltd v Comcare, at 225, at [12].)

  3. I have raised the matter for the benefit of the legal profession generally, with the intention of highlighting the fact that any correspondence addressed to the Court should make clear, in the email, whether approval has been sought, and obtained, from other parties prior to the email being sent, and also to whom the correspondence, sent to the Court, has also been sent. This will avoid any appearance of an ex parte communication with the Court.

Order that the proceedings be dealt with together

  1. As often occurs where there are different applicants, in separate proceedings, who make a claim for an order for provision out of the same estate, Maria, Luella and Milvia, well before the commencement of the hearing, agreed that both of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. No notice of motion to that effect was filed, but, in the circumstances, that was unnecessary. (The proceedings could not be consolidated, without leave, because different solicitors act for the different Plaintiffs.)

  2. I have already dealt with the circumstances in which Giuliano’s matter came to be dealt with.

  3. At the commencement of the hearing, Maria’s counsel, once again, submitted that if some of the evidence of Giuliano was admitted, Maria may be prejudiced because she would be unable to deal with it. When asked for the precise detail of that evidence, the response of counsel was rather vague. I suggested that, perhaps, the way forward was to deal with this aspect when the evidence was read. Then, if I were satisfied that there was prejudice, I would consider the best way to deal with the evidence: Tcpt, 19 August 2019, p 2(49) – p 4(11).

  4. (As I was informed that there had been a healing of the rift that had existed between Saro and Giuliano, I even considered, then, whether one way to proceed, in that event, might be to deal with the other two matters, and vacate the hearing of Giuliano’s matter, which could be dealt with separately, if it were not resolved. Then, an order could be made appointing Saro to represent the estate, thereby saving the further costs being incurred by Carmine as the executor.)

  5. In the events that happened, the issues raised by counsel for Maria evaporated during the course of the hearing. I was, and remain, satisfied that all proceedings could be, and in fact, were, dealt with together, and that there were really no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were, or that had been, relevant to all claims, were determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the estate has also been put to less expense in defending only one set of hearings, rather than two; the just, cheap and quick hearing of all of the matters in dispute were facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, was achieved.

  6. For those reasons, it was “desirable” to make an order that the proceedings be heard together: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.5. The matters proceeded on this basis. The proceedings were heard consecutively, with the evidence in one being evidence in the other.

  7. It is also convenient to deal with all the proceedings together in these reasons for judgment.

The Hearing

  1. The proceedings, by Maria, were commenced by Summons filed on 31 May 2018. She sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”), as well as consequential orders. She served two affidavits in chief made by her in support of her claim, an affidavit by each of her two children, Sophia Schinella and Anna Schinella, a solicitor’s costs affidavit, and one affidavit in reply. Each of those affidavits was read in the proceedings. She and Sophia were cross-examined.

  2. The proceedings, by Luella and Milvia, were commenced by Summons filed on 13 August 2018, in which each sought similar relief to that sought by Maria. Luella served two affidavits in chief made by her in support of her claim, and one affidavit in reply. Milvia also served two affidavits in chief made by her in support of her claim, and one affidavit in reply. A solicitor’s costs affidavit in respect of each of Milvia and Luella was filed. Each of those affidavits was read in the proceedings. Each of Luella and Milvia was cross-examined.

  3. As was earlier written, the proceedings by Giuliano were commenced by Summons filed on 14 August 2019, in which he sought similar relief to that sought by the other Plaintiffs. In addition, he sought an order that “Leave be granted to file matter out of time”, which I have taken to mean an order, pursuant to s 58(2) of the Act, that the time for the making of his application be extended until 14 August 2019, the date of the filing of the Summons.

  4. Giuliano served one affidavit in chief, an affidavit read on the application made prior to the hearing by Ms Carey, and the solicitor’s costs affidavit. Each of those affidavits was read in the proceedings. Only Giuliano was cross-examined.

  5. During oral submissions, the consent of the parties was forthcoming to Giuliano’s application being made out of time, with the result that the Court did not have to “otherwise order on sufficient cause being shown” for his application to succeed: s 58(2) of the Act: Tcpt, 21 August 2019, p 253(25) – p 254(1); Tcpt, 22 August 2019, p 272(49) – p 274(25).

  6. Carmine, in relation to all of the proceedings, relied upon a number of affidavits. He, also, was cross-examined, albeit briefly.

  7. The oral submissions were almost completed by the end of the third day and continued into the fourth day.

  8. I had informed the parties that, as I was about to depart on long leave, and as I did not think it would be possible to deliver written reasons before my departure, I would make orders following the conclusion of the submissions, and then, after my return, deliver written reasons. The course suggested was not opposed by any of the parties (by their counsel) and none of them invited me to delay the making of the orders: Tcpt, 22 August 2019, p 298(13-38).

  9. It seemed clear, from the submissions, that the relevant legal principles were not in issue, and that it was the application of the facts, in each case, to those principles that required the Court’s consideration. In addition, as the submissions progressed, it appeared that the real issue, in relation to each of the proceedings, was the quantum of the provision to be made for each applicant.

  10. After the submissions were concluded, on the fourth day, I adjourned for a short time, and upon my return, I made the orders that appear at the conclusion of this judgment. Before doing so, I discussed the form of orders with the legal representatives and provided the draft of the final form of orders to each of them. These are the reasons for making the orders that were then made.

Some uncontroversial formal matters

  1. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, Luella is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person”).

  2. In the case of Maria, and Milvia, each asserted that she is an eligible person under s 57(1)(e) of the Act, being a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member.

  3. Giuliano also relied upon s 57(1)(e), submitting that he was, at any particular time, wholly or partly dependent on the deceased, and that he is a grandchild of the deceased. There was no dispute that he is a grandchild of the deceased. (In the circumstances, pursuant to s 57(1)(e) of the Act, Giuliano did not have to establish that he was, at that particular time, or at any other time, a member of the household of which the deceased was a member.)

  4. There appeared to be no dispute about the eligibility of each of Maria, Milvia and Luella: Tcpt, 19 August 2019, p 14(32) – p 15(16); Tcpt, 22 August 2019, p 274(27-33), p 297(3-5).

  5. Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consenting to the application being made out of time.

  6. There was no dispute that only Giuliano’s application was not made within the time prescribed by the Act. The parties consented to his application being made out of time. It was, therefore, unnecessary for him to show “sufficient cause” for his application being made out of time.

  7. Section 59 of the Act, relevantly, provides that in the case of a person who is an eligible person by reason only of paragraph (e) of the definition of "eligible person" in s 57, the eligible person will have to establish that having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and that at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. It will be necessary to return to this topic later in these reasons.

  1. If eligibility, and so far as is relevant to the claim by each of Maria, Milvia and Giuliano, factors warranting the making of the application, are established, only then may the Court make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

  2. In this case, during submissions, it became clear that there was really no dispute that each of Maria, Milvia and Giuliano, had established factors warranting the making of her, and his, application, respectively.

  3. As will be read, I am satisfied, also, that there are factors warranting the making of each of her and his, application.

  4. As the deceased had dealt with all of his estate in his Will, to which reference will be made, the parties agreed that there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased: Tcpt, 19 August 2019, p 18(1-10).

  5. A family provision order may be made in relation to property that is not part of the deceased’s estate, but is designated as “notional estate” of the deceased by an order under Part 3.3 of the Act: s 63(5). There was no property that may be designated as notional estate of the deceased. In any event, all parties agreed that there would be no need to designate such property as notional estate, as there are assets of sufficient value in the estate of the deceased for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, in each case: s 88(b) of the Act: Tcpt, 19 August 2019, p 18(12-24).

Background Facts

  1. The following narrative is not in dispute except where stated. To the extent that any of them are controversial, the facts stated should be regarded as the findings of the Court.

  2. The deceased was born in Castellace, Italy, in November 1942. When he came to Australia to live is not known. He died, in Sydney, on 18 September 2017, at almost 75 years of age.

  3. Milvia was born in Pontito, Italy, in July 1949. She is now aged 70 years. She moved to Australia in 1961. She had a relationship, spanning approximately three years, with the deceased between about 1973 and 1976, during which two children were conceived. Luella was born in May 1975, and her younger sister, Tania, was born in August 1976. Milvia left the deceased when Luella was eight months old. At that time, Milvia was pregnant with Tania.

  4. Milvia gave evidence about the reasons why she left the deceased. These included threats of violence and her very serious concerns about some of his unlawful activities which had resulted in “being searched by the Federal Police, slashing mattresses … looking for any drugs, and even getting my passport when I didn't know nothing”: Tcpt, 19 August 2019, p 66(6-8).

  5. When Milvia and Luella left the deceased, they moved to Tasmania, where they lived until about 1988/1989. Then, at the request of the deceased, Milvia and the two children returned to live in Sydney. They lived in accommodation provided to them by the deceased, though Milvia stated in her affidavit made 10 August 2018, at [50], that after approximately three months, the deceased “stopped paying our rent”. After about 12 months in Sydney, they returned to live in Tasmania.

  6. Milvia had little, if anything, to do with the deceased after she returned to live in Tasmania. Luella did not see the deceased again until about 1993 or 1994. Thereafter, until 2006, at Luella’s instigation, she saw the deceased on about 7 different occasions, for no more than one week at a time. The last occasion that she saw, or spoke to, the deceased, was in 2006. She accepted that they had no contact for about 11 years prior to the deceased’s death.

  7. Maria was born in January 1943. She is now aged 76 years. She was married to Giuseppe Schinella in 1961. There were three children of the marriage, all of whom are now adults.

  8. Maria met the deceased in 1976. She states that she commenced a de facto relationship with him shortly thereafter. They lived together, initially, at Airport West, in Melbourne. Saro also lived with them at that time. Then in 1977, they moved to Canley Heights NSW, and then in 1984, to a home in Mount Pritchard. In 2002,   the deceased sold the Mount Pritchard property and in May 2002, purchased a property at Kemps Creek (“the Kemps Creek property”). Maria lived there for only a short period and then moved to her mother’s property, at Fairfield West, where she lived for about 5 years, although she and the deceased continued to see each other on occasions during this period.

  9. There is a dispute of fact relating to whether, in about 2006, Maria obtained an apprehended violence order against the deceased. Luella gave evidence, which I accept, that at about that time, on her last visit to the deceased, she attended Liverpool Court, with him, in relation to such an order which was being sought by Maria. (I shall refer to Maria’s evidence on her contact with the deceased between 2002 and 2008, some of which I am unable to accept.)

  10. In April 2008, the deceased suffered a brain aneurysm. He spent about 4 weeks in hospital where he was also required to undergo dialysis. Following his discharge from hospital, the deceased and Maria moved into rented accommodation at Green Valley. Saro came to live there with them for about one year. Meantime, Maria’s daughter, Sophia, lived with her family at the deceased’s Kemps Creek property.

  11. Maria and the deceased lived together for the next few years, but, as stated earlier, it is accepted by all parties that they ceased living together in 2016.

  12. In 2016, the deceased said that he wanted to move back to the Kemps Creek property. He did so, and he and Maria “ceased talking for a while”. There is some evidence, in the form of a police incident report, dated 28 January 2016 (Ex. MP3), that in January 2016, police and ambulance officers attended to Maria during a “mental health incident” at which the deceased was present, during which she was said to have expressed suicidal ideation. It was reported that Maria had expressed fear that the deceased’s son (not named in the document, but presumably, referring to Saro) was being released from prison “the next day” and would be living with them and she “was worried”.

  13. As I indicated to the parties on the third day of the hearing, I did not, and have not, drawn the conclusion that what Maria was reported to have said in the report, in fact, was causing her anxiety: Tcpt, 20 August 2019, p 231(30-33).

  14. Subsequently, the deceased contacted Maria and came to visit her on a few occasions at a property at Cabramatta which she was renting. There is no suggestion that they resumed any form of loving, or romantic, relationship.

  15. It is clear that there was no form of property adjustment order made in favour of Maria at any time prior to the deceased’s death. In this regard, Maria, in answer to a question from the Bench, acknowledged this: Tcpt, 20 August 2019, p 121(26-36).

  16. Giuliano was born in June 1996. He is currently 23 years of age. He says that he lived with the deceased and his mother, Carmele Labbozetta, until the age of 4 years, at the home of his maternal grandparents. In fact, he still resides, with her, at their home now. (Giuliano’s evidence is that he currently “splits” his time between residing with his mother at his maternal grandparent’s home, and “the farm”, referring to the deceased’s property at Kemps Creek: Affidavit, Giuliano Cosoleto, 16 August 2019 at par 74).

  17. Giuliano’s parents’ marriage ended in about 2001. He says that he “started to split my time between” the Kemps Creek property and his maternal grandparent’s home. He went to a local school at Kemps Creek. He gives evidence that Saro spent some time in jail, and during these periods, in particular, the deceased “did everything for me … as a father figure”.

  18. The deceased was extremely strict with Giuliano, saying that he did not want Giuliano to end up in jail. Giuliano would return to the home of his mother and her parents following disputes with the deceased. As counsel for Carmine put it, “the deceased shouldered some of the paternal burden for Giuliano, particularly in Saro's absences. Giuliano's relationship with his grandfather can also be characterised as “on again/off again”. He went wherever the path of least resistance led him, or as he put it, “wherever he could find the most freedom. Sometimes that was with his grandfather, sometimes that was with his maternal family”: Tcpt, 22 August 2019, p 292(13-19).

  19. It will be necessary to refer, in more detail, to the nature of the relationship between each of the applicants and the deceased later in these reasons. There is some dispute about the nature of the relationship that existed between Maria and the deceased and between Giuliano and the deceased, which will require particular consideration.

  20. Saro worked for the deceased from the age of 14 years (when he left school), that is from 1985 to 2011. When he would ask the deceased for payment, he was told "You know our customs and I keep telling you not to worry as everything will be yours one day." All he received from his father was between $40 and $120 per week. (Between 1990 and 2017, Saro also spent different periods of time in jail.)

The deceased’s testamentary intentions

  1. The deceased made a Will on 19 October 2011, in which he appointed Carmine as his executor. In this Will, he gave a pecuniary legacy of $180,000 to Maria and left the whole of the residue of the estate to Saro.

  2. It is clear from this, and other, evidence, that the deceased’s long held testamentary intention was that Saro was to inherit the bulk of the estate.

  3. The deceased made his last Will on 31 March 2016. This Court granted Probate in common form of that Will to Carmine, the executor appointed thereunder, on 13 December 2017.

  4. As stated, Saro is the sole beneficiary named in that Will. The deceased did not specifically appoint any named substitute beneficiaries, if Saro did not survive him, but Clause 7(b) of the Will stated that in the event that he did not, and if Saro left children living at the date of death of the deceased, “then such children having attained the age of 21 years shall take by substitution, and if more than one, equally as tenants in common, the share in my estate which their parent would otherwise have taken”. (It follows that had Saro predeceased the deceased, Giuliano, as his only child, upon attaining the age of 21, would be the sole beneficiary of the deceased’s estate.)

  5. There was no provision made for Milvia, Luella, Maria, or Giuliano, in the deceased’s last Will.

The Estate of the deceased

  1. In the Inventory of Property attached to, and placed inside, the Probate document, the property owned solely by the deceased was disclosed as the Kemps Creek property ($3,000,000), money in bank ($2,753) and a car ($12,000). The total gross value of the estate was $3,014,753. (I have omitted, and shall continue to omit, any reference to cents. This will explain any seeming mathematical errors.)

  2. At the commencement of the hearing, the parties agreed that the gross value of the deceased's estate, at the date of hearing, was $2,704,737: Tcpt, 19 August 2019, p 6(47) – p 8(7). The estate consisted of the Kemps Creek property ($2,700,000) and the proceeds of sale of the car ($4,737). (The rental income from the Kemps Creek property has been used to pay expenses. No party suggested that there was any other property that would increase the value of the estate.)

  3. The parties also agreed that there were a number of liabilities that were required to be paid out of the estate, the largest being the costs of, and associated with, the remediation of the Kemps Creek property ($495,902), the repayment of a debt which had been incurred in order to pay funeral and testamentary expenses and other creditors ($34,253), administration costs of obtaining Probate ($12,395), and the legal costs in acting, and continuing to act, in relation to a number of different issues for the estate ($95,414): Tcpt, 19 August 2019, p 8(17-22).

  4. In addition, a claim for executor’s commission was foreshadowed by Carmine ($60,000). Counsel for Maria submitted that this estimate should not be accepted. The Court may allow, out of the assets of any deceased person, to his, or her, executor, administrator, or trustee for the time being, in passing the accounts relating to the estate of the deceased person, such commission or percentage for the executor's, administrator's or trustee's pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct: s 86(1) Probate and Administration Act 1898 (NSW).

  5. There is much to be done by Carmine before commission is payable. I suggested that the amount claimed was to be used as an estimate, without in any way accepting that the Court, ultimately, would order that amount of commission. (No agreement was reached on the amount of commission that could be payable to Carmine, so I have simply used the amount claimed as an estimate.)

  6. The parties also agreed that the costs and expenses of the sale of the Kemps Creek property were likely to be $61,500 (made up of agent’s commission ($57,000) and legal costs of sale ($4,500): Tcpt, 19 August 2019, p 8(48) – p 9(3).

  7. It follows that the value of the deceased’s estate, before deduction of any costs, is estimated to be $1,945,273. Thus, it is an estate of moderately large value before any costs of the three proceedings are deducted. Naturally, the estate will be reduced by the costs of the proceedings ordered to be paid out of the estate.

The Costs of the Proceedings

  1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3 of the Act, in relation to the estate and notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

  2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased; while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

  3. As Basten JA put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222, at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

  1. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35. I have made this statement, many times, in the context of a claim for a family provision order.

  2. Ms P Yacoub, solicitor, estimated that Maria’s costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $124,033. She estimated Maria’s costs and disbursements, calculated on the indemnity basis, to be $158,306, all of which remains unpaid.

  3. Mr P Briffa, solicitor, estimated that Luella’s costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $51,575. He estimated her costs and disbursements, calculated on the indemnity basis, to be $63,450, all of which remains unpaid.

  4. Mr Briffa estimated that Milvia’s costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $47,825. He estimated her costs and disbursements, calculated on the indemnity basis, to be $58,450, all of which remains unpaid.

  5. He also disclosed that in relation to each of Luella and Milvia, his firm was acting pursuant to a conditional costs agreement without any uplift fee. He stated that each Plaintiff has not paid “any upfront money for professional legal fees or disbursements, and if the plaintiff does not obtain any further provision the plaintiff is not liable to pay this firms’ [sic] costs or disbursements”.

  6. On the third day of the hearing, counsel for Giuliano sought, and was granted, leave to file in Court, an affidavit of costs and disbursements, sworn by Ms Carey on 21 August 2019. Ms Carey estimated that Giuliano’s costs and disbursements, calculated on the ordinary basis, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing would total $51,600. She estimated his costs and disbursements, calculated on the indemnity basis, to be $61,600, all of which remains unpaid.

  7. Carmine’s costs and disbursements, calculated on the indemnity basis, in Maria’s case, at the conclusion of the 3 day hearing, and any further appearances and conference following the hearing were estimated to be $45,627, whilst the costs in relation to Luella’s and Milvia’s case were estimated to be $24,576. The common disbursements in relation to both proceedings were estimated to be $51,876. The total of Carmine’s costs and disbursements of both proceedings, calculated on the indemnity basis, were therefore, $122,080.

  8. On the second day of the hearing, counsel for Carmine sought leave to file in Court an affidavit of costs and disbursements, sworn by Mr Costa on 20 August 2019. He estimated that Carmine’s additional costs and disbursements, calculated on the indemnity basis, for the proceedings commenced by Giuliano, would total $20,000. How this amount was calculated was not disclosed.

  9. The Court, on many occasions, has emphasised the necessity for parties to bear in mind the proportionality of costs, the importance of making appropriate settlement offers, and that if one wishes, or both wish, to adopt an approach that may have the effect of reducing the value of the estate, then they should not proceed on the basis that their costs and disbursements will necessarily be borne by the estate: Geoghegan v Szelid [2011] NSWSC 1440 at [21]-[24].

  10. Furthermore, s 60 of the Civil Procedure Act, which applies equally to a claim for a family provision order, refers to "the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute".

  11. In Forsyth v Sinclair (No 2), it was said by the Court of Appeal (Neave and Redlich JJA and Habersberger AJA) at [27]:

“We consider that it is a matter of concern that in many family provision cases the amount available for distribution amongst the competing beneficiaries is significantly reduced by legal costs. Parties should not assume that litigation can be pursued safe in the belief that costs will always be paid out of the estate. Every effort should be made to resolve the dispute before the costs get out of proportion. However, it takes two to settle a dispute and unless sensible offers of settlement are made in a form which can be referred to subsequently, it is very difficult for the Court to allocate responsibility for the dispute not settling. All that can be done is to conclude that where costs have been incurred unreasonably, as here, they must be borne personally.” (Omitting citation)

  1. Orders, that the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased’s estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased.

  2. Orders that the Plaintiff’s costs, calculated on the ordinary basis, assessed and agreed at $85,000 (inclusive of GST), be paid out of the estate of the deceased.

  3. Orders that the Defendant’s costs, calculated on the indemnity basis, assessed and agreed at $144,080, of these, and the associated proceedings, be paid out of the estate of the deceased.

  4. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property.

  5. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor’s commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings.

  6. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

  1. In the case brought by Luella and Milvia, the Court:

  1. Notes the associated proceedings 2018/170958 and 2019/252712.

  2. Orders, having found the first Plaintiff is an eligible person and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that she receive a lump sum that equates to 10 per cent of the net residue of the estate of the deceased.

  3. Orders, having found the second Plaintiff is an eligible person, that there are factors warranting the making of her application, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that she receive a lump sum that equates to 3 per cent of the net residue of the estate of the deceased.

  4. Orders that no interest is to be paid on the lump sum, respectively, if it is paid within 7 days of the settlement of the sale of the property situated at XXX Kemps Creek (“the Kemps Creek property”); otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum.

  5. Orders, that the burden of the provision made in favour of each Plaintiff, be borne out of the share of the deceased’s estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased.

  6. Orders that the first Plaintiff’s costs, calculated on the ordinary basis, assessed and agreed at $45,000 (inclusive of GST), be paid out of the estate of the deceased.

  7. Orders that the second Plaintiff’s costs, calculated on the ordinary basis, assessed and agreed at $35,000 (inclusive of GST), be paid out of the estate of the deceased.

  8. Orders that the Defendant’s costs, calculated on the indemnity basis, assessed and agreed at $144,080, of these, and the associated proceedings, be paid out of the estate of the deceased.

  9. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property.

  10. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor’s commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings.

  11. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

  1. In the case brought by Giuliano, the Court:

  1. Notes the associated proceedings 2018/170958 and 2018/248634.

  2. Orders, the parties having consented, that the time for the making of the Plaintiff’s application be extended to 14 August 2019, the date of the filing of the Summons.

  3. Orders, having found the Plaintiff is an eligible person, that there are factors warranting the making of his application, and that adequate provision for his proper maintenance or advancement in life has not been made for him in the Will of the deceased, that he receive a lump sum that equates to 7 per cent of the net residue of the estate of the deceased.

  4. Orders that no interest is to be paid on the lump sum, if it is paid within 7 days of the settlement of the sale of the property situated at XXX Kemps Creek (“the Kemps Creek property”); otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum.

  5. Orders, that the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased’s estate passing to Ross Carmino, the sole beneficiary named in the Will of the deceased.

  6. Orders that the Plaintiff’s costs, calculated on the ordinary basis, assessed and agreed at $41,600 (inclusive of GST), be paid out of the estate of the deceased.

  7. Orders that the Defendant’s costs, calculated on the indemnity basis, of these and the associated proceedings, assessed and agreed at $144,080 (inclusive of GST), be paid out of the estate of the deceased.

  8. Orders that the costs of the parties are to be paid within 7 days of the settlement of the sale of the Kemps Creek property.

  9. Notes the agreement of the parties that the net residue of the estate will be calculated as the gross proceeds of sale of the Kemps Creek property less the liabilities of the estate agreed upon by the parties in these proceedings (subject to amendment as to quantum), any executor’s commission as agreed by the parties or ordered by the Court, any further liabilities properly and reasonably incurred by the estate, the costs and expenses associated with the sale of the Kemps Creek property, and the costs of these and the associated proceedings.

  10. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 24 October 2019

Most Recent Citation
Cases Citing This Decision

3

Bassett v Cameron [2021] NSWSC 207
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Koellner v Spicer [2019] NSWSC 1571
Cases Cited

86

Statutory Material Cited

4

City of Sydney Council v Satara [2007] NSWCA 148
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27