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Re Biondo

Re Biondo

Case [2023] VSC 357 27 June 2023

Standing

Declaratory Relief

Succession Law

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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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Biondo

Details

AGLC: Re Biondo [2023] VSC 357
Case: [2023] VSC 357
Decision Date: 27 June 2023

CaseChat Overview and Summary

In the matter of Re Biondo, the court considered a dispute regarding the right of interment in a family crypt and the exhumation and reinterment of the deceased's remains. The case was heard by the Supreme Court of Victoria. The plaintiffs sought a declaration that they are joint holders of the right of interment in the crypt and requested the exhumation of the deceased's remains, along with ancillary orders.

The primary legal issues before the court were whether the plaintiffs had standing to seek the declarations and orders and, if so, whether they were entitled to the relief sought. The court examined the plaintiffs' relationship to the deceased and their entitlement to be joint holders of the right of interment in the family crypt. The court also considered the ancillary orders, including the exhumation and reinterment of the deceased's remains.

The court found that the plaintiffs had established their standing to bring the proceedings under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015. It was determined that the plaintiffs' relationship to the deceased was sufficient to confer standing. The court considered relevant case law, including Smith v Tamworth City Council, Leeburn v Derndorfer, and Daicos v Daicos & Anor. The court concluded that the plaintiffs were entitled to the declarations and orders they sought, including the exhumation and reinterment of the deceased's remains.

The court made orders declaring the plaintiffs as joint holders of the right of interment in the crypt, and it granted the ancillary orders, including the exhumation and reinterment of the deceased's remains. The specific terms of the orders reflect the court's determination of the rights and entitlements of the parties involved.

Orders