IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 and the inherent jurisdiction of the Court

BETWEEN:

MARIA MARINUCCI	Plaintiff
v
JOHN CONDO	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	22 September 2020
CASE MAY BE CITED AS:	Re Condo; Marinucci v Condo
MEDIUM NEUTRAL CITATION:	[2020] VSC 613

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COSTS – Administration and probate – Application for the sole right and responsibility to dispose of a body – Where executor did not adequately consult with co-executor – Where executor did not adequately consult with family – Where joint funeral service ordered – Whether indemnity costs should be ordered against executor – Whether executor should be indemnified for costs from the estate – Supreme Court Act 1986 (Vic) s 24(1) – Supreme Court (General Civil Procedure) Rules (Vic) ord 63 – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Ferraro & Company Pty Ltd
For the Defendant	Mr PD Reynolds	Horvat Legal

HER HONOUR:

Introduction

Giuseppina Condo died on 16 May 2020. The deceased was survived by her five adult children. The plaintiff and defendant are two of the children and the executors of the deceased’s will dated 10 November 2016.

The plaintiff and the defendant were unable to agree on the funeral and burial arrangements for their mother. Two of the other three siblings aligned with the defendant. The unfortunate consequence of the dispute was that the deceased remained uninterred more than two months after her death.

Plaintiff’s application

By originating motion filed 14 July 2020, the plaintiff sought orders giving her the right and responsibility to dispose of the body of the deceased in her sole discretion. In addition, she sought orders pronouncing that: she direct the manner in which the funeral and burial be conducted and provide necessary instructions to White Lady Funerals, to the exclusion of the defendant; the funeral and burial service of the body be conducted as soon as practicable by White Lady Funerals; and the defendant pay the plaintiff’s costs on an indemnity basis.

The defendant sought orders that the dressing and viewing of the deceased be conducted by White Lady Funerals and the funeral and burial be conducted by Tripodi Funeral Services.

On 21 July 2020, the Court ordered:

(a) the plaintiff be responsible for the viewing of the deceased’s body, to be conducted by White Lady Funerals;

(b) the plaintiff be responsible for the dressing of the deceased, including the selection of the casket, flower arrangements and Santini cards;

(c) upon completion of the viewing, the plaintiff direct White Lady Funerals to transport the deceased’s body to Tripodi Funeral Services;

(d) the defendant…

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 Condo; Marinucci v Condo

Details

AGLC: Re Condo; Marinucci v Condo [2020] VSC 613
Case: [2020] VSC 613
Decision Date: 22 September 2020

CaseChat Overview and Summary

In the case of Re Condo; Marinucci v Condo, the parties involved were co-executors of an estate who disagreed about the arrangements for the deceased's funeral and burial. The dispute was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the executor who had organised the funeral and burial should be ordered to pay indemnity costs to the other co-executor. This was because the first executor had not adequately consulted with the other executor or the family, and had ordered a joint funeral service contrary to the wishes of some family members.

The court considered whether the executor's conduct warranted an order for indemnity costs under the Supreme Court Act 1986 (Vic) s 24(1) and the Supreme Court (General Civil Procedure) Rules (Vic) ord 63. The court also examined the case of Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, which established that indemnity costs could be ordered in certain circumstances where a party's conduct had been unreasonable or vexatious. The court found that the executor's conduct did not meet this threshold and that there were no grounds for ordering indemnity costs against the executor. The court did, however, order that the executor be indemnified for costs from the estate.

The court's reasoning was based on the principle that indemnity costs should only be ordered in exceptional circumstances where a party's conduct has been particularly egregious. In this case, the court found that the executor's conduct, while not ideal, did not warrant such a severe penalty. The court also noted that the other co-executor had not suffered any significant prejudice as a result of the executor's actions. The court's decision was therefore that the executor should not be ordered to pay indemnity costs to the other co-executor, but should be indemnified for costs from the estate. This outcome reflects the court's desire to balance the need to hold parties accountable for their conduct with the need to avoid unnecessary financial burdens on those involved in the administration of an estate.

Orders