Re Biondo
[2023] VSC 357
•27 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 04757
| SALVATORE BIONDO | First Plaintiff |
| -and- | |
| ROSA BIONDO | Second Plaintiff |
| v | |
| NILLA BIONDO (who is sued as Executor of the Estate of ATTILIO BIONDO, deceased) | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2023 and 15 June 2023 |
DATE OF JUDGMENT: | 27 June 2023 |
CASE MAY BE CITED AS: | Re Biondo |
MEDIUM NEUTRAL CITATION: | [2023] VSC 357 |
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WILLS & ESTATES – Standing – Where plaintiffs seek declaration as joint holders of right of interment of crypt – Where plaintiffs seek exhumation and reinterment of deceased’s remains and ancillary orders – Standing established – Order 54 of the Supreme Court (General Civil Procedure) Rules 2015 – Smith v TamworthCity Council (1997) 41 NSWLR 680; Leeburn v Derndorfer (2004) 14 VR 100; Daicos v Daicos & Anor [2018] VSC 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G Moloney | Sutherland Lawyers |
| For the Defendant | Mr J.D. Catlin | Borchard & Moore |
HIS HONOUR:
Introduction
This proceeding concerns a dispute about the final resting place of the remains of Attilio Biondo who died by suicide on 1 August 2018. Attilio’s remains are interred in a mausoleum in the Springvale Cemetery (the cemetery) known as ‘Crypt 262 row F’ (the Crypt).
The Crypt was ‘purchased’ in about August 2005 by the plaintiffs who are Attilio’s parents and who are now in their eighties. It would appear that they paid $20,876 for the Crypt, which was for two people to be interred, and that it was intended to be their perpetual resting place.
Attilio died testate leaving a will by which he appointed his wife Nilla Biondo, the defendant in this proceeding, as his sole executor.
It is not in dispute that, in August 2018, soon after Attilio died, the plaintiffs and the defendant agreed to allow Attilio to be interred in the crypt on a ‘temporary’ basis. The plaintiffs also contend, and the defendant disputes, that the length of this arrangement was also agreed, namely, until a new mausoleum was completed at the cemetery which was anticipated to be in about June 2019. In the circumstances which have occurred, it would appear that a new mausoleum at the cemetery was completed in about June 2019, but Attilio’s remains are still in the Crypt.
On 19 November 2022, the plaintiffs[1] filed an originating motion seeking orders that the defendant, as executor of Attilio’s estate, arrange his final burial in a crypt to be purchased by his estate and arrange for the exhumation of his remains and for them to be reinterred in the crypt to be purchased by the estate.
[1]Together with two of their children, Sandro Biondo and Sebastiana Venditti, who were removed as parties to the proceeding on 15 June 2023.
The discrete issue presently before the Court is whether the plaintiffs have standing to maintain the proceeding.
The plaintiffs, who have recently obtained legal representation, seek to progress their claim by obtaining leave to file a further amended originating motion. The issue of standing is therefore to be considered by reference to the amended form of the plaintiffs’ claim. The substantive relief sought by the plaintiffs in the proposed further amended originating motion is expressed as follows:
1.Declaration that, under Part 6 of the Cemeteries and Crematoria Act 2003 (the Cemeteries Act), the Plaintiffs are joint holders of a right of interment in Crypt 262 (the Crypt), Row F of the Botanical Cemetery at the Springvale Cemetery (the Cemetery) where the Deceased’s remains are currently interred on a temporary basis.
2.Declaration that in 2018, the Plaintiffs agreed with the Defendant (both as executor of the Estate of the Deceased and as the spouse of the Deceased at the time of his death) to allow the Deceased’s remains to be interred in the Crypt on a temporary basis until a new mausoleum was completed at the Cemetery which was scheduled to open in about June 2019, whereupon the Defendant would make all necessary arrangements for the re-interment of the Deceased’s remains in a suitable place of final rest.
3. Order that, within 7 days of making of these orders, the Defendant give her written consent to an application to the Secretary of the Department of Health made by the Plaintiffs for an exhumation licence under Part 12 of the Cemeteries Act for the exhumation of the remains of the Deceased from the Crypt by completing and signing the appropriate section of Part G of the application form for an exhumation licence and providing the Plaintiff with all necessary details for the completion of Part C of that form and provide that signed application form to the Plaintiffs.
4. Order that, in the event that the Defendant fails or declines to comply with the order in paragraph 3 above, the Prothonotary of the Court be authorised to sign the appropriate section of Part G of the application form for an exhumation licence authorising the exhumation of the remains of the Deceased on behalf of the Defendant and providing it to the Plaintiffs.
5. Upon the exhumation of the remains of the Deceased from the Crypt, the Defendant, at the expense of the Estate of the Deceased, make all necessary arrangements for housing of those remains until they are reinterred in accordance with paragraph 6 of these Orders.
6. The Defendant, in her capacity as the executor of the Estate of the Deceased, at the expense of the Estate of the Deceased and upon being provided with a copy of the grant of an exhumation licence to the Plaintiffs to exhume the remains of the Deceased from the Crypt, within 14 days make all necessary arrangements for the reinterment those remains in an appropriate final resting place and inform the Plaintiffs that such arrangements are in place.
Defendant’s submissions
The defendant submits that the plaintiffs do not have standing because they are not beneficiaries of Attilio’s estate. The factual premise of this claim is uncontroversial.
In his submissions, counsel for the defendant addressed what was apprehended to be the jurisdictional basis of the plaintiffs’ claim (noting that they had not then been legally represented): order 54 of the Supreme Court (General Civil Procedure) Rules.
It was submitted that order 54 was designed to protect creditors, beneficiaries and the representatives of an estate, but that the plaintiffs were simply strangers to the estate and therefore lacked standing. Reference was made to r 54.03(d) which (in part) provides that a person not a party shall not be entitled to appear except by leave of the court.
Counsel for the defendant also relied upon the following statements by Ierodiaconou AsJ in Daicos v Daicos & Anor:[2]
Third, O 54 contemplates persons with beneficial interests being parties. Rule 54.03(c) enables a plaintiff making an application pursuant to r 54.02 to join anyone with a beneficial interest in the estate, or a claim against it, as a party, although such a joinder is not mandatory. Thus while Rule 54.03(c) does not specifically identify who has standing, some indication of the parties that may be involved is provided in the references: to ‘a person claiming to be a creditor’, ‘entitled under a will’, or ‘to be beneficially interested’ in r 54.02(2)(a)(iii); and to executors and trustees, as well as ‘persons having a beneficial interest’ in r 54.03. Rule 54.04(2) expressly enables the Court to add ‘a person’ as a party to a r 54.02 proceeding in accordance with r 9.06(b) in the following circumstances: where the Court has ordered that a person who is not a party be given notice of the proceeding, and that person subsequently makes an application to be added as a party. This is consistent with a broad and flexible approach to standing.
…
Applications have previously been brought under r 54.02 by beneficiaries.[3] In those cases, however, standing has not been at issue. While other jurisdictions have analogous provisions,[4] the associated case law provides limited assistance on the issue of standing.
[2][2018] VSC 18 (‘Daicos v Daicos’), [26], [34].
[3]See eg. Re Staughton; Grant v McMillan [2017] VSC 359 (22 June 2017); Kerr v Perusia Nominees Pty Ltd [2002] VSC 277 (1 July 2002); See also Evans v Evans (1910) 10 SR (NSW) 594.
[4]See eg Rules of Supreme Court 1971 (WA) r 58.2; Uniform Civil Procedure Rules 2005 (NSW) 54.3; Supreme Court Civil Rules 2006 (SA) r 206; Supreme Court Rules 2000 (Tas) r 604; Supreme Court Rules 1987 (NT) r 54.02; Court Procedures Rules 2006 (ACT) r 2700; see also as to administration proceedings more broadly Administration Act 1903 (WA) s 45; Succession Act 1981 (Qld) s 6; Probate and Administration Act 1898 (NSW) s 57; Administration and Probate Act 1919 (SA) s 69; Administration and Probate Act 1929 (ACT) s 51; Administration and Probate Act 1969 (NT) s 82.
Reliance was also placed on the judgment of the Court of Appeal of NSW in Gonzales v Claridades, referred to by Ierodiaconou AsJ in Daicos v Daicos, where the Court stated:[5]
Fundamentally, the purpose of an administration suit is to give assistance or protection to the personal representatives as well as protecting creditors or beneficiaries of the estate (David v Frowd (1833) 1 My & K 200 at 208, 39 ER 657 at 660). Administration proceedings (and proceedings under Pt 68 r2 and its counterparts) are designed to deal with problems arising within the administration of the estate. Rule 2 does not confer jurisdiction to decide questions which could not have been decided in an administration suit (In re Royle (1890) 43 Ch D 18, Hudson v Gray (1927) 39 CLR 473 at 502).
[5][2003] NSWCA 227, [31].
Consideration
The defendant’s submissions proceed from an unduly narrow construction of order 54 of the Supreme Court (General Civil Procedure) Rules, as well as a selective and inaccurate consideration of Ierodiaconou AsJ’s judgment in Daicos v Daicos.
Rule 54.03 deals with parties and provides as follows:
54.03 Parties
In an administration proceeding or a proceeding referred to in Rule 54.02—
(a) all the executors of the will of the deceased or administrators of the estate or trustees of the trust, as the case may be, shall be parties;
(b) where the proceeding is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant;
(c) notwithstanding anything in Rule 9.03(1), and without limiting the powers of the Court under Order 9, all persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, need not be parties, and the plaintiff may make such of those persons parties as the plaintiff thinks fit;
(d) where in the taking of an account of debts or liabilities under a judgment or order in the proceeding, a person not a party makes a claim—
(i) a party other than the executors or administrators or trustees shall not be entitled to attend before the Court in relation to that claim except by leave of the Court; and
(ii) the Court may direct or allow any party to attend before the Court either in addition to or in substitution for the executors, administrators or trustees.
As to the defendant’s reliance on r 54.03(d), although subparagraph (i) states that ‘a party other than the executors or administrators or trustees shall not be entitled to attend before the Court in relation to that claim except by leave of the Court’, r 54.03(d) only applies ‘where in the taking of an account of debts or liabilities under a judgment or order’. This proceeding is not an application for taking an account of debts or liabilities.
Rule 54.03(c), which does not in terms limit the powers of the Court, provides a list of those who need not be parties to a proceeding and identifies those who the plaintiff may make parties if they see fit, including persons having a claim against the estate. The section permits a plaintiff to refrain from naming a party, but does not limit who may be a party.
In Daicos v Daicos, the Court determined that a plaintiff with a contingent beneficial interest in an estate had standing pursuant to O 54. The breadth of O 54, including in relation to standing, was recognised by Ierodiaconou AsJ in the following paragraphs of her judgement with which I respectfully agree and which are contrary to the defendant’s submissions:[6]
[6]Daicos v Daicos (n 2), [24] – [25], [28], [30].
The starting point for analysis is the text of r 54.02, in light of its purpose and context. A number of points may be noted in this regard. First, as a whole, the language of O 54 is broad, referring to ‘any relief’ and ‘any question’, with a non-exhaustive list of the types of questions that may fall into its scope.
Second, there is no express limitation on who may bring an application. Unlike the statute from which the rule is ultimately derived,[7] and an analogous rule in Western Australia,[8] a list of potential applicants has not been provided. Certainly r 54.03(a) stipulates the executors of the will or trustees or administrators of the estate must be a party but it does not preclude others and, as discussed below, r 54.03(c) envisages other parties. Use of the language ‘where the proceeding is brought by executors, administrators or trustees…’ in r 54.03(b) is an indication that the drafters contemplated that proceedings could be brought by other people. That is, if the drafters intended r 54.02 to be used only be executors, trustees or administrators, it may not have been necessary to specify proceedings commenced by those parties in r 54.03(b).…
[7]See Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 citation 48 (‘Macedonian Orthodox’), the powers given by rr 54.02 and 54.03 are derived from the Rules of the Supreme Court 1883.
[8]Rules of Supreme Court 1971 (WA) r 58.2.
The overall impression from the text and structure of O 54 is that r 54.02 was intended to have a broad and flexible application, and that the matter of standing regarding applications under r 54.02 has been left open. The Court of Appeal has stated that the O 54 provisions ‘confer extensive power on the Court’,[9] and that ‘the procedure invoked … is a summary procedure, intended to enable questions arising in the administration of an estate or a trust to be resolved cheaply and simply’.[10]
[9]Fast v Rockman [2015] VSCA 61,[43].
[10]Morris v Smoel [2013] VSCA 11, [23].
…
In Re Fast[11] Digby J held:
The nature of the proceeding, including its summary character, indicates a wide and facilitative, rather than a narrow or strict, approach by the Court is appropriate under Order 54.02 of the Rules. Such an approach promotes the intent of the Rule to enable the Court to assist in the administration of trusts by making practical and proportional orders well short of a general administration order, in suitable cases, for example to clarify the scope of a power or duty and thus afford certain personal protection to trustees or executors where appropriate.[12]
[11][2015] VSC 780.
[12]Ibid [14]; see also DR McKendry Nominees Pty Ltd [2015] VSC 560,[12]; Ballard v A-G (Victoria) (2010) 30 VR 413, 421; Re Salvation Army (Victoria) Property Trust [2017] VSC 553, [42].
The breadth of r 54.02 has been recognised in cases dealing with the disposal of a deceased’s remains. Leeburn v Derndorfer[13] was an application brought under r 54.02 by one of three executors of a deceased’s estate who were unable to agree upon arrangements for the disposition of the ashes of the deceased. After referring to the authorities which establish that the manner and place of disposition of a dead body is a matter entrusted to the executors of a deceased estate, Byrne J observed, by way of obiter, that ‘they do admit qualifications’, and continued as follows:[14]
It is possible in certain circumstances for the Court to intervene on the application of an interested party. The executors are expected to consult with those interested[15] and they may not exercise this power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.[16] …
[13](2004) 14 VR 100.
[14]Ibid [16].
[15]Smith v TamworthCity Council (1997) 41 NSWLR 680,694 ('Smith v Tamworth').
[16]Manketelow v Public Trustee [2001] WASC 290 at [23], per Hasluck J; Re Lochowiak (deceased) [1997] SASC 6301, per Debelle J; Jones v Dodd (1999) 73 SASR 328 at 336 [51], per Millhouse, Perry and Nyland JJ. Smith v Tamworth (n 15), 694.
In Smith v TamworthCity Council,[17] cited by Byrne J in support of the expectation on executors to consult with ‘those interested’, Young J distilled 15 propositions relating to the right of burial which have been adopted by this Court.[18] The third proposition is, ‘A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so’.[19] The propositions also refer to various parties, such as spouses, children, next of kin, persons who expend funds in burying a body and a householder where the death occurs.[20] These persons, although they may not hold the legal right to determine how to dispose of a body, appear to be potential ‘stakeholders’ of the type to which Young J referred.
[17]Smith v Tamworth (n 15).
[18]Ibid, 693-694. See Eastern Health v Bruinink [2022] VSC 772, [27] – [28]; Lotoaniu v Helu [2022] VSC 675, [38]; Keller v Keller (2007) 15 VR 667, [6]; Dow v Hoskins [2003] VSC 206, [46].
[19]Smith v Tamworth (n 15), 694.
[20]Ibid.
On the basis of the above principles, the plaintiffs have standing to bring this proceeding under O 54 in the form of the proposed further amended originating motion because they are ‘stakeholders’ or ‘interested parties’ in the disposition of Attilio’s remains. In the circumstances of this case, they have this status because they seek declaratory relief which, if granted, would have the effect of formally declaring them as the joint holders of a right of interment in the Crypt with a right to remove Attilio’s remains from that place, together with orders giving effect to that right.
Disposition
I will grant the plaintiffs leave to file and serve the proposed further amended originating motion. The proceeding will be listed for trial.
I will hear the parties on costs.
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