Re Condo; Marinucci v Condo
[2020] VSC 613
•22 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2020 02934
IN THE MATTER of the will and estate of GIUSEPPINA CONDO deceased
-and-
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 be responsible for arranging the funeral and burial services for the deceased, to be conducted by Tripodi Funeral Services; and
(e) the plaintiff and the defendant bear their own costs of carrying out their respective duties under the orders, to be reimbursed by the estate once probate has been granted.
Costs of the proceeding
The parties were unable to agree on the costs of the proceeding. Written submissions were subsequently filed by the parties.
The plaintiff seeks that the costs of both parties be taxed on the standard basis and be paid out of the estate of the deceased.[1]
[1]In her originating motion, the plaintiff sought indemnity costs against the defendant.
The defendant seeks an order that the plaintiff pay his costs on an indemnity basis and the plaintiff bear her own costs, without recourse to the estate.
Background
The affidavits filed by the parties set out the significant communication issues between the siblings, both before and after the death of the deceased.
In November 2016, the deceased appointed the plaintiff as her attorney, including her medical attorney. The power of attorney also appears to appoint the defendant as her alternate attorney, however, he alleges that he was only advised of this three years after the plaintiff’s appointment. This exacerbated existing tensions between the plaintiff, the defendant and their siblings.
In her capacity as medical attorney, the plaintiff had a substantial care-giving role for her mother. She was responsible for making medical appointments for her and visited her daily, before and after her work. The other children also regularly visited their mother and ensured her care needs were met. It seems, however, that the plaintiff did not communicate with all of her siblings regarding their mother’s care needs and medical condition to the extent that they would have liked. As a result, in January 2020, the defendant made an application to the Victorian Civil and Administrative Tribunal due to the lack of transparency and communication by the plaintiff. The application had not been heard at the time of the deceased’s death.
Following the deceased’s death, the plaintiff continued to take charge of matters concerning the deceased. She arranged for White Lady Funerals to collect the deceased’s body from the aged care facility. This was allegedly arranged on the basis that the deceased had repeatedly expressed a wish to the plaintiff that she wanted to be buried by White Lady Funerals. However, on the defendant’s account, his mother was a devout Catholic who had worn black for 13 years following her husband’s death and who wished for a traditional Italian service. He deposed that she had requested Tripodi Funeral Services. He also laments that he and two of his siblings were excluded from discussions at the aged care facility in relation to funeral directors and arrangements for collection of the deceased’s body.
White Lady Funerals’ collection of the deceased’s body from the aged care facility and possession of the body led to a substantial dispute between the siblings in relation to funeral directors. Notwithstanding this, on 23 June 2020, the plaintiff’s solicitors proposed that a joint funeral service take place between White Lady Funerals and Tripodi Funeral Services. On 29 June 2020, the defendant’s solicitors proposed that White Lady Funerals conduct the embalming process and viewing provided that Tripodi Funeral Services could thereafter take possession of the body. On 14 July 2020, the defendant’s solicitors extended this offer to include the dressing of the deceased as well as the selection of the casket and flower arrangements and Satini cards. However, the plaintiff appears to have subsequently objected to the proposal that the burial be undertaken by Tripodi Funeral Services and commenced the proceeding.
Consideration
As executors of the estate, both the plaintiff and defendant had the obligation to arrange the funeral and burial of the deceased.[2] Such arrangements require a degree of consultation and cooperation with each other, as well as consultation with close family members of the deceased.[3]
[2]Smith v Tamworth City Council (1997) 41 NSWLR 680, 693 (Young J) (‘Smith’); Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997) 6 (‘Meier’).
[3]Smith (n 2) 694 (Young J); Leeburn v Derndorfer (2004) 14 VR 100, 104 [16], 107 [28](Byrne J).
The plaintiff did not consult with the defendant to the extent that would have enabled a successful joint exercise of their obligations. On the plaintiff’s account, all five of the deceased’s children were present at the aged care facility when the conversation about funeral directors took place and nobody at that time objected to her nominating White Lady Funerals. This is at odds with the accounts of the defendant and two siblings, who claim they were not present. The defendant also claims that he and his brother were only told later by the nurse on duty at the age care facility that White Lady Funerals had been contacted to collect the body.
The balance of the evidence is thus that the plaintiff failed to consult with the defendant and proceeded to arrange for the funeral director at White Lady Funerals to collect the deceased’s body in circumstances where the obligation to arrange for the disposition of the deceased’s body was not hers alone.[4]
[4]Smith (n 2); Meier (n 2).
There were a number of solutions open to the parties that could have been arrived at in a joint compromise. On multiple accounts, the deceased was described as a devout Catholic Italian woman. Even on the plaintiff’s account, the deceased had wished for burial at the Catholic parish of St Fidelis. It is not a far cry to say she wished for a traditional Italian service conducted by a funeral director, such as Giannarelli & Sons or Tripodi Funeral Services. On the other hand, there is evidence that, even during the life of the deceased, her children had concern that some of her care needs should be attended to by women. It is also within the realm of possibility that White Lady Funerals could have conducted a traditional Italian service.
The plaintiff and the defendant were close to a compromise before the proceeding was commenced. The plaintiff’s solicitors first proposed a joint funeral. The defendant agreed that White Lady Funerals could carry out the embalming provided that Tripodi Funeral Services could thereafter take possession of the deceased’s body and conduct the funeral. Contrary to the plaintiff’s assertion that the defendant did not agree to a joint funeral, it is clear that he was amenable to the idea. Unfortunately, the plaintiff was not prepared to compromise in the discussions that followed and instead commenced the proceeding.
Despite the plaintiff’s assertions to the contrary, the orders made are not substantially different from the earlier proposals made by the defendant. In his offer made on 29 June 2020, the defendant proposed that White Lady Funerals conduct the embalming process and viewing provided that Tripodi Funerals Services could thereafter take possession of the body. On 14 July 2020 he extended this offer to include dressing of the deceased, including selection of the casket and flower arrangements and Satini cards. The final orders made by the Court differ only in respect of minor matters and with regards to the funeral director responsible for the transport of the deceased’s body to Tripodi Funeral Services.
The similarities between the orders and the proposals made by the defendant speak to the reasonableness of his offers, yet the plaintiff showed a marked reluctance to engage with him. To that end, the defendant has been successful.
The usual order as to costs is that a successful party to litigation is entitled to a costs award in his or her favour, and an unsuccessful party bears the liability for costs of the unsuccessful litigation.[5] The defendant was the successful party in the proceeding and is entitled to an order for costs in his favour.
[5]Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] (McHugh J).
Ordinarily, persons engaged in litigation in a representative capacity should not be out of pocket because of the litigation, provided their expenses are properly incurred.[6] Costs of an executor are commonly quantified on an indemnity basis and are paid out of the estate.[7] However, in light of the plaintiff’s conduct, it would be an overreach for her to assume that costs would be allowed out of the estate.
[6]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.26; GE Dal Pont, Equity and Trusts in Australia (Lawbook Co, 7th ed, 2019) 682 [23.135], citing Turner v Hancock (1882) 20 Ch D 303, 305 (Jessel MR); Re Beddoe [1893] 1 Ch 547, 558 (Lindley LJ); Nolan v Collie (2003) 7 VR 287, 303–10 (Ormiston JA); Dimos v Skaftouros [2004] VSCA 141.
[7]Re Buckton; Buckton v Buckton [1907] 2 Ch 406, 414 (Kekewich J); Murdocca v Murdocca (No 2) [2002] NSWSC 505; Steel v Ifrah (No 2) [2013] VSC 167; Warton v Yeo [2015] NSWCA 115.
While this proceeding concerns a deceased estate and the parties are the executors of the estate, it is simply a dispute between siblings over the funeral and burial arrangements for the deceased. By refusing the reasonable joint compromise and commencing the proceeding, she engaged in an adversarial process with the defendant, which was unnecessary. Had the plaintiff been less stubborn, the proceeding could easily have been avoided. The plaintiff should thus bear the defendant’s costs in addition to her own costs, without recourse to the estate.
In seeking indemnity costs against the plaintiff, the defendant relies on a special costs order that is only made where the proceeding exhibits a special or unusual feature or special circumstances.[8] The authorities concerning the principles to be applied when a court, in the proper exercise of its discretion, may depart from the making the usual order for costs on a standard basis are well known and need not be set out in any detail.[9] What is most important for present purposes is that the facts of the case support the making of a special order for costs.
[8]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.28.
[9]Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Ugly TribeCo Pty Ltd v Sikola [2001] VSC 189; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 [12]–[18] (Croft J).
An order for indemnity costs against the plaintiff is justified as a result of the plaintiff’s unreasonable conduct. The plaintiff’s refusal to consult with her co-executor and at least two of her siblings on the funeral and burial arrangements and her refusal to accept what were fair compromises was unreasonable. Moreover, given that the plaintiff’s solicitors were first to propose a joint funeral service, it is difficult to understand what she may have thought such an arrangement might involve.
The defendant was clearly amenable to the idea of a joint funeral and his offers remained open when the plaintiff’s solicitors asked the defendant’s solicitors to confirm whether he had instructions to accept service. In commencing such adversarial litigation when reasonable offers remained on the table, the plaintiff acted unreasonably and put the estate at risk for costs of the proceeding.
Orders
The Court will make the following orders:
(a) The plaintiff pay the defendant’s costs of and incidental to the proceeding, including any reserved costs, on an indemnity basis, without indemnification from the estate, to be taxed in default of agreement.
(b) The plaintiff bear her own costs of and incidental to the proceeding personally, without indemnification from the estate.
(c) The proceeding be dismissed.
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