Re Manlio

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROBATE LIST

S PRB 2011 17403

IN THE MATTER of the Estate of Romano Peter Manlio, deceased

IN THE MATTER of an Application for Letters of Administration ad colligendum bona

BETWEEN:

LISA NICOLE STAGLIANO (as the Administrator of the Estate of Romano Peter Manlio, deceased)	Plaintiff
v
MARIA SCERRI	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATES OF HEARING:	24-28 August, 28 October and 6 November 2015
DATE OF JUDGMENT:	21 December 2015
CASE MAY BE CITED AS:	Re Manlio
MEDIUM NEUTRAL CITATION:	[2015] VSC 733

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WILLS AND ESTATES — Defendant seeking distribution from deceased’s estate as an unregistered domestic partner — Deceased in a relationship with another woman for seven months prior to his death — Defendant and deceased not living together for at least six months prior to deceased’s death — Deceased not committed to relationship with the defendant at time of death — Application dismissed.

LEGAL PRACTITIONERS — Whether counsel for defendant had proper factual foundation for statements made during opening submission — Concessions made by defendant’s counsel during final submissions inconsistent with critical aspect of defendant’s evidence — Whether plaintiff provided instructions to her counsel to cross examine defendant on a basis known to be false — Obligations of counsel when acting for client with limited intellect, poor literacy skills and limited financial means.

Administration and Probate Act 1958 ss 3 and 51; Relationships Act 2008 s 35(2); Civil Procedure Act 2010 ss 18, 20, 21 and 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Antill	Leticia Rodriguez & Associates
For the Defendant	Mr R N J Young	Zeljko Stojakovic

HIS HONOUR:

Introduction

Romano Manlio died intestate on 26 November 2011 aged 47 years. He had a son, Anthony. Anthony’s mother, Lisa Stagliano, is the plaintiff in the substantive proceeding but is the respondent to the application by Ms Scerri which is the subject of this judgment.

For seven months prior to his death, Mr Manlio was in a relationship with Catherine Vella, whom he had met on 15 April 2011. Ms Vella gave evidence in the current proceedings including the following:

…this guy was special, it was different … he took my heart straight away...[1]

[1]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T670 LL9-10

On 15 April 2011, Mr Manlio and Ms Vella commenced a sexual relationship which continued until Mr Manlio’s death. Ms Vella lived in Sydney but travelled to Melbourne every three weeks with her son. These travel arrangements were necessary to comply with access arrangements with her former husband. Ms Vella would stay at Mr Manlio’s house in Delahey from Thursday or Friday evening and would return to Sydney on Sunday afternoon. From the night they met, they stayed in constant contact.[2] Almost every night without exception they would speak (often via Skype) for approximately 30-45 minutes.[3] This was in addition to regular telephone calls during the day. Ms Vella flew to Melbourne immediately upon being told of Mr Manlio’s death by his brother in-law.[4] After his death, Ms Vella attended the viewing of Mr Manlio’s body with his family and sat with the family by the graveside when he was buried.
[2]Ibid LL25-28 and T684 LL22-25.
[3]Ibid T685 LL19-21.
[4]Ibid T675 L26 — T676 L4.

The issue in the present proceeding is whether, notwithstanding his relationship with Ms Vella, Maria Scerri was Mr Manlio’s unregistered domestic partner at the time of his death. Ms Scerri contends that she was Mr Manlio’s unregistered domestic partner within the meaning of s 3 of the Administration and Probate Act 1958 (‘the Act’) and is entitled to a distribution of his estate in accordance with s 51 of the Act. This contention must be rejected. The evidence overwhelmingly supports the conclusion that from at least December 2010 until November 2011 Ms Scerri was not Mr Manlio’s unregistered domestic partner.

Ms Scerri also seeks a declaration that Mr Manlio’s estate is indebted to her in respect of loans advanced to him but not repaid. This contention must also be rejected. Ms Scerri did advance significant sums of money which have not been repaid. However, the money was advanced to, and partially repaid by Taylors Lakes Garden World (Vic) Pty Ltd (‘the company’) of which Mr Manlio was the sole director. The company was placed in liquidation in March 2015 with net debts of $490,385.[5]
[5]Exhibit P31: Report of Mr P Vrsecky, liquidator of Taylors Lakes Garden World (Vic) Pty Ltd dated 31 August 2015.

Ms Scerri also seeks a declaration that she is the owner of various items of furniture and whitegoods which she purchased in or about January 2010 and which, to the present day, remain in the Delahey property. I have concluded that Ms Scerri did purchase the items in question and they are presently in the Delahey property. However, in January 2010, Mr Manlio repaid Ms Scerri in cash the sum of $4,100 referable to these purchases.

Statutory scheme

Section 51(2) of the Act provides:

(2)The partner of an intestate who leaves a child (or other issue) is entitled—
(a)to the personal chattels of the intestate; and
(b)if the intestate’s residuary estate is worth not more than $100,000, to the whole of the estate; and
(c)if the intestate’s residuary estate is worth more than $100 000, to—
(i)$100 000; and
(ii)interest on that amount calculated at the rate set out in subsection (3) from the date of the death of the intestate to the date of payment of that amount; and
(iii)one third of the balance of the estate.

‘Partner’ is defined in s 3(1) of the Act to include an unregistered domestic partner. ‘Unregistered domestic partner’ is defined as follows:

… a person (other than a registered domestic partner of the person) who, although not married to the person—
(a)was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and
(b)either—
(i)had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death; or
(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death.

Section 3(3) of the Act provides:

For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

Section 35(2) of the Relationships Act 2008 provides:

(2)In determining whether a domestic relationship (other than a registered domestic relationship) exists or has existed, all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case—
(a)the degree of mutual commitment to a shared life;
(b)the duration of the relationship;
(c)the nature and extent of common residence;
(d)whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f)the ownership, use and acquisition of property;
(g)the care and support of children;
(h)the reputation and public aspects of the relationship.

Was Ms Scerri living with Mr Manlio as a couple on a genuine domestic basis as at 26 November 2011?

The first limb of the definition of ‘unregistered domestic partner’ directs attention to the relationship between Mr Manlio and Ms Scerri at the time of his death. The second limb directs attention to the nature of the relationship during the two years immediately prior to his death.

The evidence before the Court overwhelmingly supports the conclusion that at the time of his death, Mr Manlio and Ms Scerri were not living as a couple on a genuine domestic basis. In November 2011, Mr Manlio lived at 16 Mercer Court, Delahey. He purchased this property in December 2009 and moved in during January 2010. Mr Young, who appeared for Ms Scerri, opened the case as follows:

(i)Ms Scerri had slept at the Delahey property on the night of 25 November 2011, went to work on the morning of 26 November and at some stage soon thereafter was advised that Mr Manlio had died;[6]
(ii)For two years prior to 26 November 2011, Ms Scerri was sleeping at the Delahey property seven nights a week;[7]
(iii)Throughout the two year period, they lived as a married couple;[8]
(iv)A property owned by Ms Scerri in Burnside was, for all intents and purposes, vacant between November 2009 and November 2011. The house was furnished but save for an occasional visit, it was not lived in;[9]
(v)Mr Manlio and Ms Scerri were engaged to be married in August 2010. Mr Manlio gave Ms Scerri an engagement ring but no date had been set for the marriage.[10] Ms Scerri had left the ring in the Delahey house on the morning of 26 November 2011 because she did not want to wear it while she was preparing food at a café where she worked;[11] and
(vi)Ms Scerri and her four children moved out of the Delahey house immediately after Mr Manlio’s death.[12]

[6]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T17 LL10-15.

[7]Ibid T16 LL12-15.

[8]Ibid T17 L23.

[9]Ibid T19 LL10-25.

[10]Ibid T18 LL6-15.

[11]Ibid T20 LL20-26.

[12]Ibid T21 LL9-10.

Towards the end of Mr Young’s opening submission, the following exchange took place between myself and Mr Young:

HIS HONOUR:        Well, that’s a fairly simple case.
MR YOUNG:            It is.
HIS HONOUR:        Your client was living seven days a week, physically residing seven days a week with the deceased from November 2009 until November 2011. It wasn’t the case where she would spend, say, three nights at one property and then moved back to her place at Burnside. The house at Burnside was essentially empty throughout that period?
MR YOUNG:            Yes.
HIS HONOUR:        You want to confirm your instructions on that? Mr Young, I will hold you to these things that you’re saying in opening submission as you expect. Do you just want to confirm your instructions with your client about that?
MR YOUNG:            There was furniture there, Your Honour, and on occasions they would go there but basically it was empty. It wasn’t attended …
HIS HONOUR:        The house was furnished. But save for an occasional visit, it wasn’t lived in?
MR YOUNG:            No.[13]

[13]Ibid T22 L25 —T23 L13.

A feature of the current proceedings which is both striking and disconcerting is the extent of disconnection between Mr Young’s opening submission and the evidence which was presented at trial. This disparity was not simply based on the evidence arising from cross-examination of Ms Scerri and witnesses presented in opposition to her case, but from Ms Scerri’s evidence-in-chief. This is a matter to which I shall need to return later in this judgment when considering the question of costs. For present purposes, however, it is sufficient to observe that once Ms Scerri commenced giving evidence it quickly emerged that there was no evidentiary foundation for Mr Young’s opening submission that for a two year period, November 2009 to November 2011, Ms Scerri and her children had lived continually with Mr Manlio in the Delahey house and that her Burnside house was, for all intents and purposes, vacant.

Ms Scerri’s evidence-in-chief included evidence that she and her children would move between the Delahey and Burnside houses. Her evidence was that from 2008 until Mr Manlio purchased the Delahey property, she and her children would spend three nights at the Taylors Lakes property and would then move back to Burnside. When Mr Manlio purchased the Delahey property, he insisted that Ms Scerri and the children stay at the house full-time.[14] Ms Scerri then qualified this evidence. In 2010, she was living at Delahey ‘pretty much the whole time’.[15] Ms Scerri would spend six nights a week at Delahey and would spend Sunday at Burnside before returning to Delahey.[16] In 2011, Ms Scerri was still living with Mr Manlio ‘but he was spending a lot of time at my house as well’.[17] During the course of Ms Scerri’s evidence, the following exchange took place between myself and Ms Scerri:
[14]Ibid T40 LL12-16.
[15]Ibid T42 L29.
[16]Ibid T43 LL12-21.
[17]Ibid T43 LL2-3.

HIS HONOUR: All right and in answer to a question from your counsel, you said that in 2011 you were “pretty much” living at Delahey all the time?---Yeah.
Well, what does that mean, Ms Scerri?---Well we lived there full-time but um I was setting up to get my own shop so for about six months – six months, maybe more, seven months, we were pretty full-time living in that property. But then when I opened my shop, I really can’t remember when it was but it was towards the end of 2011, um Romano and I would both go to my house, you know, get up early and go – we’d do the renovations. And it was just easier to be at my house again ‘cause the kids would get on the bus to go to school.
So when you opened your café …?---Yeah, it was easier to be at my place.
… when you opened the café some time late in 2011?---That’s correct, perhaps maybe a month or so before Romano passed away

---you moved back to Burnside?---Yeah, but on – on some occasions, we’d still be in the Delahey house, but the majority of time, while we were renovating, it was easier to stay.[18]
[18]Ibid T47 LL9-30.

Contrary to Mr Young’s opening submissions, Ms Scerri gave evidence that the night before Mr Manlio’s death, she did not stay at the Delahey house. Ms Scerri’s evidence was that at the time of Mr Manlio’s death she was living at the Delahey house but the night before he died, Mr Manlio had gone out and she did not stay at the Delahey house but went back to her house in Burnside. She did this because he was ‘…going out with the boys and the boy that he was going out with was going to stay with – but when they went out, they went out all night, they didn’t come home until all hours of the morning’.[19]
[19]Ibid T52 LL2-5.

In response to a question from the Court as to whether Ms Scerri would regularly return to Burnside if Mr Manlio ‘was going out drinking with the boys’, Ms Scerri replied:

WITNESS:Well yeah, he actually stopped going out with the boys but then this Jimmy boy came back into it and he was having troubles with his wife and he was a bit of an alcoholic and he drank all the time and I said to Romano, “You know if you’re gunna go out with the boys, I’d rather just go back to my place”. And he was really just helping him out at that time.
HIS HONOUR: So had Jimmy moved into the house?---Not really full-time. Jimmy just went out with the boys and then stayed for the weekend or whenever. If they went out on a Friday night, he’d still be there on the Saturday.[20]

[20]Ibid T53 LL5-16.

Ms Scerri gave evidence that as at 26 November 2011, both her clothing and her children’s, together with furniture ‘… the works, everything’ was at the Delahey house.[21] Her evidence was that from the time she moved in with Mr Manlio (some time in 2008), she never had sex with anybody else.[22] She gave evidence that to her knowledge, Mr Manlio never had any other girlfriends during this period.[23]
[21]Ibid L31.
[22]Ibid T75 LL16-18.
[23]Ibid L21.

To summarise, Ms Scerri’s evidence regarding her residency at the Delahey and Burnside properties throughout the period January 2010 until November 2011 was as follows:

· Throughout 2010, she and her children lived six nights a week at Delahey and spent one day in Burnside;

· In 2011, for six to seven months she and her children were living full-time at Delahey;

· Jimmy was not living full-time at Delahey in 2011, he just went out with the boys and then stayed over for the weekend or whenever; and

· Ms Scerri and the children would return to Burnside when Mr Manlio was going out drinking with his friends because she did not want to be woken up when he got home. She also did not want to expose her children to Jimmy, who she considered to be an alcoholic.

Contrary to Ms Scerri’s testimony, the evidence overwhelmingly supports the conclusion that throughout 2011:

· Jimmy was living full-time at the Delahey house for at least six months prior to Mr Manlio’s death;

· Ms Scerri and her children did not live at the Delahey house at any time throughout 2011.

During Mr Young’s closing submissions, he conceded that Ms Scerri and her children had not lived at the Delahey house at any time during the six months prior to Mr Manlio’s death:

HIS HONOUR:        Mr Young, where is the evidence that in the six months prior to Mr Manlio’s death that your client was living, was in a domestic relationship. As in, living together. There’s a complete black hole, there’s just – where is the evidence? Where is any of the sort of material one would expect to go in to evidence, of evidencing a joint life. Like the material that you put in, in the early stages of the relationship around Christmas 2009 – Christmas 2010 and then Easter 2010. I mean December 2009 and April, May 2010. That just really begs the question. Where’s the material, any material of that type in the six months prior to Mr Manlio’s death. It just – you take me to it, there just doesn’t seem to be any evidence at all.
MR YOUNG:            Well she gave an explanation by they weren’t sharing the same Your Honour. She gave the explanation that she knew about Jimmy and she didn’t want her children there. So she knows about it, she knows about – it’s not a case that she’s completely divorced from him. She knows what’s going on. She’s also got business arrangements that time which she said it was more convenient.
…
HIS HONOUR:        But I’m asking for your assistance. I look at this case and I’m very troubled, I’m very troubled that your client – in a Supreme Court, piece of litigation. Which has run for six or seven days over at best, a bit over $100,000 odd. And I’m looking at, from the position of you as counsel. When you looked at this case and you advised your client. When you look at the period six months prior – put to one side the evidence of the engagement and the money advance and everything. But drilling down on the statutory criteria for the six months prior to November 2011. Where is the evidence. And you seem to have very, very little evidence to support an ongoing relationship during that period. Now if you want to take me to what you say the evidence is, I’d be assisted. So what is it?
MR YOUNG:            The only - - -
HIS HONOUR:        They’re not living - they’re not living in the same house.
MR YOUNG:            No.
HIS HONOUR:        They’re not in the same house for the whole of that period.
MR YOUNG:            No.[24]

[24]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 6 November 2015) T791 L27 — T792 L16 and T792 L29 — T793 L19.

The concession that Ms Scerri was not living in the Delahey house at any time during the six months prior to Mr Manlio’s death is directly contrary to Ms Scerri’s evidence. Ms Scerri’s evidence was that Jimmy was not living in the house full-time.[25] He went out drinking on the weekends and would stay over. She returned to Burnside to avoid being woken by Mr Manlio when he returned from drinking and to avoid her children being exposed to Jimmy.[26] However, at no point did Ms Scerri give evidence that she returned to live full-time at the Burnside property for the six months prior to Mr Manlio’s death.
[25]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T53 L13.
[26]Ibid LL19-20.

The concession is also directly inconsistent with the evidence of Ms Scerri’s daughter, Rachel. Her evidence was that when Mr Manlio died, she was living in the Delahey house with Ms Scerri and two of her siblings.[27] They were staying at Burnside the night before Mr Manlio died because Mr Manlio was going out that night and Ms Scerri did not want the children exposed to Jimmy.[28] In response to a question from the Court as to whether she had been living in the Delahey house between December 2010 and November 2011, Rachel Scerri replied:

… Yes, although it … became more back and forth during that time period because my mum had opened a café … And she also started doing a hospitality course. So we were spending a lot more time in Burnside but Romano would come to stay with us. It wasn’t living separately or anything like that.[29]

[27]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 25 August 2015) T246 LL2-5.

[28]Ibid LL1-10 and T255 LL14-16.

[29]Ibid T256 L29 — T257 L4.

Rachel Scerri’s evidence was that, apart from the period in the early part of 2011 when Ms Scerri was undertaking the hospitality course and when the café opened in the latter part of 2011, for the remaining seven or eight months in 2011 she was sleeping at the Delahey house ‘probably four to five’ nights per week.[30]
[30]Ibid T257 LL5-10.

Mr Young’s closing submissions are totally irreconcilable with the basis upon which he opened the case. They are also directly inconsistent with the basis upon which he cross-examined Anthony Manlio. During the course of that cross-examination, he put squarely to Mr Manlio that ‘there was nobody (sic) Jimmy living at your father’s house for six months before his death’.[31] Mr Young effectively disavowed critical evidence given by both Ms Scerri and Rachel Scerri regarding their living arrangements throughout the six month period prior to Mr Manlio’s death. In some respects, this is understandable. Mr Young was confronted by a veritable tsunami of evidence to the effect that:

· Jimmy was living full-time in the Delahey house for at least six months prior to Mr Manlio’s death; and

· Throughout that six month period (and earlier), there was no evidence of personal items such as clothing, toys or make-up consistent with Ms Scerri and/or her children living in the Delahey house.

[31]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T491 LL28-29.

The conclusions referred to above are based upon the evidence of a number of witnesses including, Ms Vella, Matthew McNair, Brian Coates and Rosemary Borg. I found each of these witnesses to be entirely credible. Individually and collectively, they spent significant periods of time in the Delahey house from January 2010 until November 2011. Their evidence regarding the absence of any sign that Ms Scerri and her children were residing in the house was not seriously challenged. No suggestion was made, nor could it have been, that these witnesses had an axe to grind. They simply recounted to the best of their recollection what they had observed in the Delahey house during the period January 2010 until November 2011.

I have referred at the outset of this judgment to Ms Vella’s relationship with Mr Manlio. Having heard her evidence and observed her demeanour in the witness box, I found her to be an entirely credible witness. Ms Vella gave evidence that Mr Manlio’s ‘friend James was staying the spare room’[32] and the other room was Anthony’s.[33] Other than James and Anthony, there was no sign of anyone else living in the house, including no clothes or toys.[34] Mr Young put it to Ms Vella that there was children’s clothing in the Delahey house during the period Ms Vella had stayed there. She replied:

… I mean I’ve got three kids and I mean a grandson now, but like when you’ve got kids in a house, you can’t hide it. You could tell a house that’s got kids in it and a house that doesn’t have kids in it.[35]

[32]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T672 LL12-13.

[33]Ibid LL13-14.

[34]Ibid T673 LL23-24.

[35]Ibid T682 LL26-29.

Ms Vella also gave evidence, which I accept, that she had looked through the whole of Mr Manlio’s wardrobe and there was no sign of anybody else’s clothes in the wardrobe.[36]
[36]Ibid T683 LL6-15.

Ms Borg cleaned the Delahey house once a week, for at least five hours from April/May 2010 until late November 2011.[37] Ms Borg gave evidence that throughout this period, the only people living in the house were Mr Manlio, Jimmy (for about ten months) and Ms Scerri’s eldest son, Daniel, for a few months in mid-2010.[38] There was no sign that the house had been occupied by children, except for when she first started cleaning and found some colouring books and pencils, which she threw out.[39]
[37]Ibid T700 LL12-18.
[38]Ibid LL19-29.
[39]Ibid T701 L22 — T702 L10.

Mr McNair and Mr Coates were both long-term friends of Mr Manlio. Mr McNair is a Leading Senior Constable with Victoria Police. He knew Mr Manlio for nine years and gave unchallenged evidence that he was an extremely close friend.[40] Every second weekend, he would stay at the Delahey house, arriving on Friday evening and leaving on Sunday afternoon.[41] He and Mr Manlio and other friends, notably, Mr Coates and (later in 2011) Jimmy, would watch sport on television and go out drinking.[42] His evidence was that there was a relationship ‘of sorts’ between Mr Manlio and Ms Scerri when Mr Manlio was living at Delahey.[43] Ms Scerri ‘turned up’ on occasions, but he has no recollection of ever seeing any of her children at the house.[44] There were no toys at the Delahey house.[45] Mr Manlio was not in a relationship with Ms Scerri at the time of his death, he was with Ms Vella.[46] Jimmy had moved in with Mr Manlio ‘for at least six months’ prior to Mr Manlio’s death.[47] Prior to Jimmy moving in, Mr Manlio had asked Mr McNair to move into the Delahey house.[48] Mr McNair saw Jimmy at the Delahey house on at least 20 occasions.[49] He was emphatic that Ms Scerri did not live at Delahey: ‘In Delahey, but she never lived there, Your Honour, never. Never lived there’.[50]
[40]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T511 LL12-13.
[41]Ibid T514 LL5-7.
[42]Ibid T512 – T513.
[43]Ibid T516 L5.
[44]Ibid LL4-5.
[45]Ibid LL11-12
[46]Ibid T521 LL28-30.
[47]Ibid T533 L9.
[48]Ibid T532 LL10-25 and T533 LL3-14.
[49]Ibid T533 LL30-31.
[50]Ibid T527 LL22-23.

Brian Coates had known Mr Manlio since 1984.[51] He participated in the fortnightly drinking rituals with Mr McNair and Mr Manlio at the Delahey property. He estimated that between January 2010 and November 2011, he would have stayed at Delahey on 40 weekends, arriving on Friday evening and leaving on Sunday afternoon. Jimmy was living full-time at Delahey from mid-2011.[52] He thinks he met Ms Scerri twice at the Taylors Lakes property, the house Mr Manlio owned before moving to Delahey.[53] Mr Coates gave evidence that he was unaware that Ms Scerri had any children.[54] He gave evidence that neither Ms Scerri nor her children stayed overnight at either the Taylors Lakes or Delahey properties on any occasion when he stayed over.[55] He never saw any children’s clothes or toys at either Taylors Lakes or Delahey.[56]
[51]Ibid T540 LL7-8.
[52]Ibid T554 LL9-10.
[53]Ibid T542 LL13-27.
[54]Ibid LL28-29.
[55]Ibid T546 LL17-21.
[56]Ibid T547 LL28-31.

I have concluded that at the time of Mr Manlio’s death, Ms Scerri was not living with him as a couple on a genuine domestic basis. I accept that prior to Mr Manlio commencing a relationship with Ms Vella in April 2011, there had been an intimate relationship between Ms Scerri and Mr Manlio. I also accept that throughout 2009 when Mr Manlio was living in Taylors Lakes, there were occasions when Ms Scerri and her children would sleep at the house. Mr Manlio’s son, Anthony, gave evidence that in 2009 he would have fortnightly access visits in Taylors Lakes.[57] On Saturdays, Ms Scerri and three of her children would arrive at the house with overnight bags. They would leave on Sunday afternoon and take their bags with them.[58]
[57]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T396 LL26-30.
[58]Ibid LL10-12 and T397 LL27-30.

Mr Manlio purchased the Delahey property in December 2009. Ms Scerri purchased various items of furniture and whitegoods with her credit card in or about January 2010 for use in the Delahey house. I will return to the issue of the ownership of these chattels later in this judgment. For present purposes, it is sufficient to observe that the fact that Ms Scerri purchased these items is consistent with the existence of a relationship between the two of them. So too, is the fact that throughout 2009, Ms Scerri was prepared to loan in excess of $100,000 to Mr Manlio/the company. I shall also return to this issue later in this judgment. However, it is plain that the fact that Ms Scerri, a person of very limited financial means, was prepared to mortgage her property and advance in excess of $100,000 to Mr Manlio/the company is tangible evidence of her emotional commitment to him. Further, it is not disputed that in June 2010, Mr Manlio purchased a diamond ring from Michael Hill jewellers in Ms Scerri’s name for the sum of $2,799. Mr Young contended that the Court should conclude that Mr Manlio and Ms Scerri were in fact engaged from August 2010 and were still engaged when Mr Manlio died.

Ms Scerri gave evidence that Mr Manlio proposed to her and she accepted his proposal in August 2010.[59] A certificate of authenticity for a ring valued at $2,799 in her name, with her address in Delahey was tendered in evidence.[60] Ms Scerri gave evidence that her friends and family knew of the engagement.[61] She gave evidence that shortly after August 2010, she had a discussion with Anthony Manlio in which he referred to the engagement and said ‘he’s happy for us’.[62] Ms Scerri’s evidence was that the engagement ring was always left in the bedroom in the Delahey house on her side of the bed in a drawer. However, she would not wear it at all because every day she was cooking or going to the shop to cook and she didn’t want to risk losing the diamonds.[63] Subsequently, Ms Scerri gave evidence that she did wear the ring but took it off for hygiene purposes because she was involved in food preparation.[64]
[59]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T54 LL15-22.
[60]Exhibit D2: Michael Hill Jewellers- Lifetime diamond warranty and certificate of authenticity.
[61]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T58 LL10-11.
[62]Ibid T59 L4.
[63]Ibid T54 LL3-7.
[64]Ibid LL28-31.

Ms Scerri’s evidence regarding her engagement to Mr Manlio was corroborated by four witnesses: Rachel Scerri, Peter Mifsud, Rita Borrelli and Roseanne Briffa. On the other hand, a number of witnesses gave evidence directly inconsistent with a ring ever having been given to Ms Scerri by Mr Manlio.

As noted above, I found Ms Borg who cleaned the Delahey house, to be a totally credible witness. Ms Borg gave evidence that in around December 2010, Mr Manlio showed her a diamond ring which was in a box in a jewellery bag in the top drawer of a buffet in the family room at the Delahey house. Mr Manlio ‘sort of said that he’s not going back there again and he mentioned that he purchased a ring’.[65] Mr Manlio showed the ring to Ms Borg and the put it away again.[66] On the morning of 26 November 2011, Ms Borg was in the kitchen at the Delahey house and she observed Ms Stagliano find the ring in the drawer in the buffet.[67] Ms Stagliano gave evidence that she found the ring in a Michael Hill jewellery bag whilst looking for Mr Manlio’s driving licence.[68]
[65]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T693 LL25-27.
[66]Ibid T694 L1.
[67]Ibid T697 LL1-3.
[68]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T593 LL23-31.

Anthony Manlio gave evidence that in 2010, he found the ring in the bottom drawer of the buffet. He asked Mr Manlio about the ring and he responded: ‘… we were pretty serious but … things sometimes things don’t turn out … you don’t realise until you go through certain things …’.[69] Anthony Manlio also gave evidence that in December 2010, he travelled to Thailand with Mr Manlio. Whilst in Thailand, Mr Manlio told him that he liked family but that it was not for him, it was too much responsibility and he would rather go out with his mates and have some fun.[70]
[69]T417 LL1-10.
[70]T418 LL1-10.

There was no issue in the current proceedings that in late 2010, Mr Manlio and Ms Scerri planned a trip to Thailand with Anthony and three of Ms Scerri’s children. Ms Scerri refused to go on the trip because of a disagreement over the accommodation arrangements. Ms Scerri wanted everyone to sleep in the same room. Mr Manlio wanted two separate rooms: one for him and Ms Scerri, and one for the children. Mr Manlio proceeded to book two rooms despite Ms Scerri’s objection. She refused to travel.[71] Mr Manlio was not able to get a refund for the four airfares for Ms Scerri and her children. Anthony Manlio gave evidence that his father was very angry about Ms Scerri’s refusal to travel.[72] Anthony Manlio also gave evidence that the reason Mr Manlio had wanted to go on the trip to Thailand with Ms Scerri and her family was because he was trying to reconnect with Ms Scerri.[73]
[71]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 25 August 2015) T254 LL15-25.
[72]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T418 LL19-22.
[73]Ibid T415 LL10-13 and LL27-30.

The evidence before the Court points strongly to the conclusion that post December 2010 there was no reconciliation between Mr Manlio and Ms Scerri. The accounts for the company for the period 30 June 2009 to 30 June 2012 were tendered in evidence.[74] Those accounts record a Visa payment to eHarmony on 1 December 2010 in the sum of $184.78 and then $10.25 per month thereafter until November 2011. I infer that these payments represent Mr Manlio’s joining fee and monthly membership fees for eHarmony. The timing of Mr Manlio joining eHarmony coincided with his anger at Ms Scerri following her refusal to travel to Thailand. It is consistent with him being in search of a new relationship. That search ended when he met Ms Vella on 15 April 2011. Both his membership of eHarmony and his relationship with Ms Vella are impossible to reconcile with him being engaged to be married.
[74]Exhibit P28: Accounts of Taylors Lakes Garden World Pty Ltd for the financial year ending 30 June 2009 through to 30 June 2012.

There are various other matters which weigh against a conclusion that there was in fact an engagement between Mr Manlio and Ms Scerri. No evidence was given by anybody of ever actually having seen Ms Scerri wearing an engagement ring. If Mr Manlio and Ms Scerri were engaged in August 2010, no date for a wedding had been set at the time when Mr Manlio died 15 months later. No public announcement of the engagement was made. No engagement party took place. Mr McNair and Mr Coates, who were very close friends of Mr Manlio, never heard of any engagement.[75]
[75]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T551 LL7-10.

On the other hand, three witnesses who gave evidence in support of Ms Scerri did testify that they were aware of the engagement. Peter Mifsud gave evidence that he had known Mr Manlio continually since 2001 and that Mr Manlio ‘was a pretty good friend’.[76] He gave evidence that in 2010, Mr Manlio told him that he and Ms Scerri were engaged, that he loved Ms Scerri and that ‘she was the one he wanted to marry’.[77] I do not accept Mr Mufsud’s evidence. He was extremely hesitant in the manner in which he gave his evidence. Even allowing for the hesitancy which is sometimes a natural by-product of an inexperienced witness giving evidence, it must be said that Mr Mifsud was a very unconvincing witness. He claimed to be a good friend of Mr Manlio and to have seen him once a month in the six months prior to his death.[78] However, he had no independent recollection of where Mr Manlio lived.[79] His evidence was that he did not go to the Delahey house regularly because Mr Manlio was ‘more occupied with Maria’ and ‘had dropped his mates’.[80] This evidence is irreconcilable with the fact that Jimmy was living at Delahey during this period and that each fortnightly weekend Mr McNair and Mr Coates were staying at the Delahey house. Neither Mr McNair nor Mr Coates had ever heard of Mr Mifsud.[81]
[76]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 25 August 2015) T292 LL8-13.
[77]Ibid T294 LL9-10.
[78]Ibid T292 LL20-23.
[79]Ibid T293 LL18-20.
[80]Ibid T294 LL21-23.
[81]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T517 LL26-27 and T547 LL23-25.

Rita Borrelli has been a friend of Maria Scerri for 25 years. She gave evidence that Maria Scerri telephoned her and told her that she and Mr Manlio were engaged.[82] Her evidence was that Mr Manlio referred to Ms Scerri as ‘my darling fiancée’.[83] This occurred in 2010.[84] I do not accept Ms Borrelli’s evidence. Her evidence was that she went to the Delahey property and observed that Mr Manlio and Ms Scerri and her children were a ‘happy family, they were together’[85] and ‘it was a typical family’.[86] When Ms Scerri was at Burnside, Mr Manlio was ‘always’ there.[87] At the Delahey house she observed children’s ‘video games, clothes … the typical family environment’.[88] Until the time of Mr Manlio’s death, she did not know of Mr Manlio having any other girlfriends.[89] This evidence is impossible to reconcile with the evidence of Ms Vella, Ms Borg, Mr McNair and Mr Coates.
[82]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T334 LL17-21.
[83]Ibid T335 LL10-15.
[84]Ibid L19.
[85]Ibid T307 LL15-17.
[86]Ibid LL27-28.
[87]Ibid T308 L18.
[88]Ibid T310 LL6-9.
[89]Ibid T311 L12.

I accept that when Mr Manlio lived in Taylors Lakes in 2009 and when he first moved into the Delahey property in early 2010, his relationship with Ms Scerri may have corresponded with the picture of happy family life portrayed by Ms Borrelli. However, her evidence does not accord with my findings as to the nature of that relationship throughout 2011.

Roseanne Briffa has been a friend of Ms Scerri’s for 30 years.[90] Her evidence was that she visited Ms Scerri and her family at Delahey ‘a couple of times a week’.[91] She and Ms Scerri opened a café together in October 2011.[92] Around that time Ms Briffa would spend more time at the café. She would also drop Ms Scerri off at the Burnside house.[93] When she dropped Ms Scerri off at Burnside, she would see Mr Manlio with the children.[94] Ms Briffa gave evidence that she received a phone call from Ms Scerri who was very excited and advised her that she and Mr Manlio had become engaged.[95] Ms Briffa took a cake around to the Delahey house to celebrate.[96] Her evidence was that in her eyes Mr Manlio and Ms Scerri ‘were a married couple’.[97]
[90]Ibid T344 L22.
[91]Ibid T352 L18.
[92]Ibid T349 LL10-11.
[93]Ibid T353 LL30-31.
[94]Ibid T354 LL3-8.
[95]Ibid T355 LL13-15.
[96]Ibid LL19-30.
[97]Ibid T356 L11.

It is impossible to reconcile the picture of domestic harmony presented by Ms Briffa’s evidence with the reality that throughout 2011 Mr Manlio was in a fully committed sexual relationship with another woman. At the very time Ms Briffa and Ms Scerri were in the process of opening the café in October 2011, Mr Manlio was totally engrossed in his relationship with Ms Vella. They Skyped each night via computer for 30 to 45 minutes. Plainly, this was not taking place from Ms Scerri’s house in Burnside.

I am driven to conclude that the evidence of Ms Borrelli, Ms Briffa and Mr Mifsud is a product of a misplaced loyalty to Ms Scerri. Mr Manlio did purchase a diamond ring for Ms Scerri and at some point in about mid 2010 he probably intended to propose to her. He never did so. There was evidence from Anthony Manlio, which I accept, of a major argument between Ms Scerri and Mr Manlio in mid-2010. Mr Manlio was unhappy that food had not been cooked properly. He smashed plates and Ms Scerri stormed out of the house.[98] Mr Manlio subsequently planned a trip to Thailand with a view to reconciling with Ms Scerri but that fell apart with adverse financial consequences. Money which Mr Manlio had outlayed for airline tickets and accommodation could not be refunded. He never gave the ring to Ms Scerri. It remained in the drawer of a buffet in the kitchen/family room at Delahey between June 2010 and 26 November 2011.
[98]Ibid T411 L9 — T412 L4.

I accept that there was ongoing contact between Ms Scerri and Mr Manlio right up to the time of his death. Ms Briffa gave evidence, which I accept, that Mr Manlio had assisted with the renovation of the premises from which she and Ms Scerri operated a café from October 2011. Shortly before his death, Mr Manlio assisted with the painting and rubbish removal from the café premises.[99] It is not surprising that Mr Manlio would have continued to maintain a relationship of sorts with Ms Scerri. She had advanced in excess of $100,000 to Mr Manlio/the company. As at November 2011, in excess of $80,000 remained outstanding. Regular payments had been made to Ms Scerri from the company’s bank account until May 2011 but had then ceased. Doubtless this reflected the parlous financial position of the company. Ms Scerri was owed a lot of money which neither Mr Manlio nor his company had the ability to repay. It is therefore not surprising that Mr Manlio would have wished to stay on favourable terms with Ms Scerri. This, however, falls well short of providing the foundation for a finding that at the time of his death Mr Manlio and Ms Scerri were living as a couple on a genuine domestic basis.
[99]Ibid T354 L25 — T355 L9.

Having made the findings of fact set out above, it is necessary to turn to the applicable legal principles. I have set out earlier in this judgment the definition of an unregistered domestic partner in s 3 of the Act. In his final submissions, Mr Young conceded that at the time of Mr Manlio’s death, Ms Scerri was not living with him at the Delahey house and had not done so for the previous six months. He submitted that notwithstanding Mr Manlio residing sporadically at Burnside, this was sufficient to satisfy the concept of ‘living with’ in the definition of an unregistered domestic partner.

Mr Young relied upon the judgment of Murphy J of the Family Court of Australia in Jonah v White.[100] This judgment was concerned with the meaning of a de facto relationship for the purposes of s 4AA of the Family Law Act 1975 (Cth):

The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.[101]

[100](2011) 258 FLR 236.

[101]Ibid [66].

Mr Young also relied upon the judgment of White J in Vaughan v Hoskovich:[102]

What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences …[103]

[102][2010] NSWSC 706.

[103]Ibid [51].

Further, Mr Young relied upon the judgment of Gleeson CJ in Green v Green[104] as authority for the proposition that a domestic relationship can be co-extensive with a party to that relationship having a sexual relationship with another person.
[104](1989) 17 NSWLR 343.

The passage from [66] of the judgment of Murphy J in Jonah v White directs attention to the degree of mutual commitment to the relationship.[105] As Hallen J observed in Sadiq:

Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another. [106]

[105]See also Sadiq v New South Wales Trustee and Guardian [2015] NSWSC 716, [199] - [202] (‘Sadiq’).

[106]Ibid [205].

In Forsyth v Sinclair[107] (‘Forsyth’), Neave JA (Habersberger AJA agreeing) relevantly observed in a case brought under Part IV of the Act:

In this case Marlene was not simply one of Malcolm’s close friends. She had an exclusive sexual relationship with him, and was recognised as his partner by their joint friends and Marlene’s family. Her relationship with him had lasted for 12 years and they planned to marry.
Although his Honour did not explicitly find that Malcolm and Marlene were de facto partners, their relationship could have been so described. In New South Wales a woman living with the deceased person as his wife on a bona fide domestic basis was an eligible applicant for testator’s family maintenance under s 7 of the Family Provision Act 1982. In Ward v Anderson, the applicant stayed at the deceased’s home about three to four nights a week but maintained her own residence, 35 minutes drive away, primarily because it was close to the hospital at which she was employed. The couple kept their financial affairs separate and on occasions the claimant lent the deceased money. They were known by others to be partners and the deceased had given the applicant an engagement ring and told others that they intended to marry, though they had not decided when this would occur. Despite the fact that the couple did not live together, Waddell CJ in Equity held that the applicant was living with the deceased as his wife on a bona fide domestic basis and was therefore an eligible applicant under the legislation. Ward v Anderson is not directly relevant in Victoria, because s 91 of the Act does not require an applicant to have a specified relationship with the deceased. Nevertheless it indicates that a de facto relationship may exist when the couple have separate residences and are not financially dependent on each other.[108]

[107][2010] VSCA 147.

[108]Ibid [87] - [88] (citation omitted).

Thus, Forsyth is an authority for the proposition that two people may live together as a couple on a genuine domestic basis while maintaining separate residences. However, the couple in Forsyth had made a commitment to living together in the future, as pointed out by Redlich JA:

The trial judge found that the plaintiff and the testator had a long standing intimate and caring relationship. They had a deep affection for each other. They shared on a daily basis, nearly all of the significant moments of their lives. The plaintiff gave the testator some level of care and support. Their ‘emotional and spiritual bonds were very strong’. They had made a commitment to living together in the future. The testator had said that he intended to make provision for the plaintiff in the event that she survived him. These findings, though challenged on appeal, were plainly open on the evidence. I am not persuaded that the conclusions reached by the trial judge should be disturbed.[109]

[109]Ibid [107] (citation omitted).

In Dow v Hoskins & Ors,[110] Cummins J considered a former definition of ‘domestic partner’ in s 3(1) of the Act and relevantly held:

In my view the determination of whether the plaintiff was living with the deceased, as contemplated by the law as I have recited in its statutory form, should not be construed on narrow, formal, pedantic or merely geographical criteria but should be considered taking into account the human reality of the personal, emotional and cultural complex. I approach the matter in that broader context. I have considered a number of domestic partner cases: Hibbertson v George, Brown v Tullock, Calma v Sesar & Ors, Burnes v Richards, Boothman, ex parte Trigg, Jones v Dodd and Sullivan v Public Trustee for (NT) Such cases are necessarily determined on their facts. The subsisting principle which emerges from them is that the determining factors are the length and circumstances of the relationship in each case …[111]
On the evidence before me, I find that there was a continuance of a subsisting relationship between Ms Dow and the deceased at the time of the death of the deceased. I find that the plaintiff was the domestic partner of the deceased at the time of his death, despite the geographical circumstance of their separation and despite the curial proceedings (notably the Intervention Order) between them. That is because I accept the evidence of the plaintiff that there was a continuing intention of the parties to resolve their differences and live together. She was acting responsibly, as was the deceased acting responsibly, in seeking to address his alcohol induced problems. They had two children to whom they were each devoted, and the separation was designed, not to determine whether they should live together, but to fulfil their continuing intention to live together. I also take into account the human reality of the situation between them and the difficulties culturally and emotionally that they were undergoing and I consider that a narrow and pedantic view of living together ought not be applied in the circumstances.[112]

[110][2003] VSC 206.

[111]Ibid [32] (citation omitted).

[112]Ibid [34].

The evidence in the present case points overwhelmingly to the conclusion that at the time of his death Mr Manlio was not committed to having a relationship with Ms Scerri as a couple. The primary manifestation of this lack of commitment was his relationship with Ms Vella. I have no hesitation in concluding that this relationship went well beyond a casual sexual encounter. This conclusion is reinforced by the manner in which Mr Manlio’s family allowed Ms Vella to participate in the viewing of his body after his death and to sit with the family at the funeral. I accept the evidence of Mr McNair that at the time of Mr Manlio’s death he was no longer with Ms Scerri but was with Ms Vella.

Although Mr Manlio maintained contact with Ms Scerri up to his death he was not committed to the relationship with her. Whilst Ms Scerri did give evidence that from the time she commenced a relationship with Mr Manlio until his death she had no other sexual partner, she gave no evidence as to the time and place when she last had sexual relations with Mr Manlio prior to his death. Further, there is no evidence before the Court which supports a finding that Mr Manlio had any intention post November 2011 of living with Ms Scerri.

The fact that Mr Manlio was in a sexual relationship with Ms Vella is not, of itself, fatal to Ms Scerri’s claim. Rather, it is the nature of the relationship and the extent of the mutual commitment between Mr Manlio and Ms Vella which is significant. The evidence points strongly to the conclusion that they were mutually committed. They were in daily contact often via Skype for 30-45 minutes. The nature of this daily contact is significant because it is irreconcilable with Mr Manlio having either the intention or the capacity to have maintained a relationship with Ms Scerri as a domestic partner during the period April to November 2011.

Is the estate of Mr Manlio indebted to Ms Scerri?

Ms Scerri seeks a declaration that she loaned Mr Manlio the sum of $119,020.28 of which $81,920.28 is still owing, together with interest and bank charges. Whilst there is room for debate regarding the amount of money in issue, it is beyond argument that throughout 2009 Ms Scerri loaned Mr Manlio/the company in excess of $100,000 of which approximately $80,000 has never been repaid.

I have no hesitation in concluding that Mr Manlio exploited Ms Scerri to prop up his company which in 2009/2010 was in serious financial difficulties. His conduct continued a pattern of behaviour whereby Mr Manlio would extract loans on a non-commercial basis from woman with whom he was in a relationship. Melanie Marchesi was in a relationship with Mr Manlio between mid-2006 and late 2008.[113] Ms Marchesi gave evidence that throughout this period Mr Manlio borrowed $60,000 from her which he repaid in late 2008.[114] Forty thousand dollars was borrowed to pay the Australian Tax Office and on two occasions $10,000 was borrowed in order to pay the company’s suppliers.[115] Mr Manlio borrowed $5,000 from Ms Vella in September 2011 to pay his employees’ wages. The money had not been repaid when he died.[116] He also borrowed money from family members. In 2007/2008 he borrowed $56,000 from his brother Vito of which $26,000 was still owing in November 2011.[117]
[113]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T577 LL11-13.
[114]Ibid T578 LL3-6.
[115]Ibid LL11-14.
[116]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T679 LL6-14.
[117]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T570 — 571.

The issue which falls for determination is whether Ms Scerri loaned the money to Mr Manlio or to the company. The company was wound up in March 2015 with debts of $490,835, including unsecured creditor debts of $457,173.[118]
[118]Exhibit P31: Report of Mr P Vrsecky, liquidator of Taylors Lakes Garden World (Vic) Pty Ltd dated 31 August 2015.

The objective common intention of the parties to a contract determines who the parties to the contract are.[119] A number of factors point strongly to the conclusion that the parties to the loan agreements were Ms Scerri and the company. Ms Scerri’s evidence is that Mr Manlio first asked her for a loan so that he could use it to buy stock. Mr Manlio told her this arrangement would be cheaper than ‘getting a business loan.’[120] Subsequently, Mr Manlio told Ms Scerri that money was ‘needed to fix the truck or buy another truck.’[121]
[119]Refaat v Barry [2015] VSCA 218, [53], [95], [142] and [153] (citation omitted).
[120]T79 LL17-18.
[121]T80 LL14-15.

Two loan agreements recording an agreement between the company and Ms Scerri were tendered in evidence. The first agreement, Exhibit D5, is dated 6 August 2009. It is on the letterhead of ‘Taylors Lakes Garden World Pty Ltd’. It is addressed to Ms Scerri and records her address as being 136 Westwood Drive, Burnside Vic 3023. The terms of the agreement are as follows:

Dear Maria,
AGREEMENT BETWEEN TAYLORS LAKES GARDEN WORLD PTY LTD AND MARIA SCERRI
This is an agreement confirming that Maria Scerri has borrowed Taylors Lakes Garden World Pty Ltd $56,000. These amounts are made up of two deposits;
Wednesday 24^th June 2009 of $40,000 and Friday 24^th July 2009 of $16,000.
This money is to be repaid in full.
Payments will be made directly into your bank account on a weekly basis. $2,060.00 a week, commencing Week Beginning Monday 10^th August 2009. The $60.00 extra per week will cover the interest on the borrowed amount.

The document is signed by both Mr Manlio and Ms Scerri and is dated 7 August 2009.

Exhibit D6 is a document on the letterhead of Taylors Lakes Garden World Pty Ltd dated 23 November 2010. It is addressed to Maria Scerri, 136 Westwood Drive, Burnside Vic 3023. The document is headed ‘AGREEMENT BETWEEN TAYLORS LAKES GARDEN WORLD PTY LTD AND MARIA SCERRI’. The balance of the agreement records:

This is an agreement confirming that Maria Scerri has borrowed Taylors Lakes Garden World Pty Ltd $80,000.
The money is to be repaid in full.
Payments will be made directly into your bank account on a weekly basis. $500 a week.

The document is signed by Mr Manlio and Ms Scerri.

The document dated 23 November 2010, Exhibit D6, is not contemporaneous with the $80,000 loan from Ms Scerri. The evidence of Ms Stagliano and the company bank accounts upon which that evidence was based, support the conclusion that the final deposit by Ms Scerri into the company bank account was made in November 2009.[122] Exhibit D6 records that ‘Maria Scerri has borrowed Taylors Lakes Garden World Pty Ltd $80,000’. It does not record the date on which the moneys were lent. In the absence of any evidence to the contrary, I have concluded that the agreement was referring to money which had been loaned in 2009 and which had not been repaid as at November 2010. Ms Borrelli gave unchallenged evidence in relation to Exhibit D6 that in November 2010, she had a discussion with Mr Manlio that ‘for security purposes’ he wanted a written agreement recording the existence of the loan in case something happened to him. [123]
[122]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T720 — T721.
[123]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T313 LL20-23.

The terms of the agreement of 23 November 2010 expressly record the parties thereto as Ms Scerri and the company. The terms of Exhibit D6 record a loan agreement which was previously entered into. There was no formal written agreement at the time the moneys which are the subject of Exhibit D6 were advanced to the company.

The conduct of the parties in entering into the agreement recorded in Exhibit D6 is legitimately characterised as post-contractual conduct. Where no formal written contract exists, post-contractual conduct is admissible for the purpose of determining the parties to a contract.[124] The terms of Exhibit D6 strongly support the conclusion that the contracting parties were Ms Scerri and the company. This conclusion is reinforced by the fact that the stated purpose of the loans was for the business, as opposed to personal expenditure. In this regard, it is to be noted that the accounts for the company for the year ending 30 June 2009 through to 30 June 2012 disclose that Mr Manlio often used the company accounts to meet personal items of expenditure. His payment of his eHarmony accounts and his monthly Foxtel accounts out of the company’s funds are but two of many examples. However, at the time Mr Manlio sought money from Ms Scerri, he explicitly stated that the money was required for business purposes: to purchase stock and the replacement of a company vehicle. The repayments of the loan, such as they were, came from the company’s account.
[124]Regreen Asset Holdings Pty Ltd v R [2015] VSCA 286, [134]; Australian Communications Corporation & Anor v Coles Group Ltd [2011] VSC 490, [35]; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, [30].

Mr Young submitted that the fact that Ms Scerri was never given notice of an opportunity to lodge a proof of debt in the company’s winding up was an objective indicator that the debt was owed personally by Mr Manlio, rather than the company. I reject this submission. A more likely explanation is the shambolic state of the company’s accounts.[125]
[125]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T595 L28 — T596 L7.

I have no hesitation in accepting Ms Scerri’s evidence that she trusted Mr Manlio to do the right thing by her and to repay the moneys which she advanced. It is unfortunate that her trust has been abused with the consequence that she has been left with a substantial debt.

Is Ms Scerri entitled to a declaration that she is the owner of the Delahey chattels?

Ms Scerri seeks a declaration that she is the owner of various items of furniture/whitegoods which are currently in the Delahey property. Her evidence is that on 29 December 2009, she attended a Harvey Norman store in Watergardens, together with Mr Manlio and her children and purchased various items of furniture/whitegoods for the Delahey house using her Visa card.

The receipts for the purchase were tendered in evidence. The receipts are objective evidence that Ms Scerri purchased furniture/whitegoods immediately prior to the date Mr Manlio moved into the Delahey property. Notwithstanding this evidence, Mr Antill, presumably acting on instructions, cross-examined Ms Scerri on the basis that none of the items were ever in the Delahey property.[126] I directed Mr Antill to obtain instructions from Ms Stagliano confirming that none of the items recorded in the Harvey Norman receipt were currently at the Delahey property. I raised with both counsel the possibility of the Court undertaking an inspection of the Delahey property pursuant to s 53 of the Evidence Act 2008 to determine firsthand whether the items are presently in the house.[127] Following this exchange and the intervening luncheon adjournment, Mr Antill informed the Court that the items recorded in the Harvey Norman receipt, which totalled in excess of $4,000, were in the Delahey property.[128] No explanation was provided for the change of instructions. The receipts which recorded the purchase of the furniture/whitegoods had been annexed to an affidavit of Ms Scerri which had been filed and served upon Ms Stagliano well in advance of the hearing. Ms Stagliano has been living at the Delahey property continually since 26 November 2011. If Ms Stagliano did provide instructions to Mr Antill to cross-examine Ms Scerri on the basis that the items were not in the Delahey property, such instructions are irreconcilable with her obligations under the Civil Procedure Act 2010 (‘Civil Procedure Act’). This matter, together with other aspects of Ms Stagliano’s conduct and evidence, will be dealt with below.
[126]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 25 August 2015) T220 L21.
[127]T222 LL20-24.
[128]T225 LL1-20 and T226 LL21-25.

Ultimately, there was no issue that Ms Scerri purchased goods for the Delahey property in the sum of approximately $4,000. The issue which falls for determination is whether Mr Manlio repaid Ms Scerri the cost of these goods. I am satisfied that Mr Manlio did repay Ms Scerri by way of cash deposits an amount equivalent to her credit card purchases for the furniture/whitegoods.

After the completion of the oral evidence, Ms Scerri filed credit card statements with respect to the period December 2009/January 2010. This was in accordance with a direction of the Court which had previously been given. The statements were tendered in evidence.[129] The credit card statements record that on 6 January 2010 and 27 January 2010, cash deposits totalling $4,100 were paid into Ms Scerri’s credit card account.
[129]Exhibit D11: Bundle of credit card account statements of the defendant for the period 03/12/09 – 04/01/10, 05/01/10 – 02/02/10 & 03/02/10 – 02/03/10.

Ms Scerri gave evidence that throughout the period 2009/2010, her only source of income was a single parent pension.[130] She gave evidence that throughout this period, she would often make purchases on her credit card on Mr Manlio’s behalf and he would subsequently repay her by way of cash deposits.[131] There is no evidence of anybody other than Mr Manlio making cash deposits into her account. Mr Young submitted that the Court would be engaging in speculation if it concluded that the deposits totally $4,100 on 6 January and 27 January 2010 were made by Mr Manlio. I reject this submission. The question is to be resolved on the balance of probabilities. The timing and the quantum of the deposits coincides with Ms Scerri’s acquisition of the goods and Mr Manlio moving into the Delahey property. The quantum of the cash deposits is well beyond Ms Scerri’s means, based on her own financial resources. A finding that Mr Manlio was the source of the cash deposits is consistent with Ms Scerri’s own evidence regarding her practice of making purchases on Mr Manlio’s behalf throughout 2009/2010, which he would subsequently repay by way of cash.
[130]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T51 LL7-10.
[131]Ibid LL19-25.

The conclusion set out above is inconsistent with Ms Scerri’s evidence that she was never repaid for the items which she purchased. However, as with other key aspects of Ms Scerri’s evidence, I reject her testimony.

Conclusion

I have rejected each of the three limbs of the relief sought by Ms Scerri. It is therefore necessary to turn to the question of costs. From the outset of the current proceedings, two matters were abundantly clear. First, the quantum of Ms Scerri’s claim, however formulated, was totally disproportionate to the costs of the litigation. This was a matter which I was at pains to point out to both counsel from the commencement of the proceedings.[132] Second, the competing accounts as to the existence of a genuine domestic relationship between Ms Scerri and Mr Manlio were totally irreconcilable. Prior to the commencement of the proceedings, the parties had filed affidavits which disclosed their respective cases. Ultimately, because issues of credit loomed large in the proceedings, I directed that all evidence was to be given viva voce. Nevertheless, by reason of the affidavits, the parties were placed squarely on notice of the evidence which would be led during the course of the proceedings.
[132]Ibid T35 LL11-19 and T124 LL21-27.

In addition to the two matters set out above, an additional matter of significance emerged within a relatively short period of time after the commencement of the proceedings. Based on my observations of Ms Scerri in the witness box, it was readily apparent that she is a person of very limited intellectual capacity and literacy skills. I raised these concerns directly with Mr Young because I was concerned that whenever Ms Scerri was being directed to a document during the course of her evidence, she was not comprehending its meaning. In response to these concerns, Mr Young elicited from Ms Scerri that she had been taken out of primary school at 11 years of age to look after her sisters. She never commenced high school.[133] Prior to being married at 24 years of age, she had worked as a machinist.[134] She has no other history of paid employment. Ms Scerri gave evidence that sometimes when she looks at a document, she cannot comprehend what she is looking at.[135] At the Court’s request, Ms Scerri was asked to read part of an affidavit which she had sworn prior to the commencement of the proceedings. She was unable to do so.[136] In addition to these matters, on 4 June 2015, Ms Scerri’s solicitor filed an affidavit deposing to a conference with Ms Scerri on 20 May 2015 during which he had sought an explanation from Ms Scerri as to why she kept adding further evidence to previous instructions she had provided. He deposed that Ms Scerri told him that her memory was poor as a result of a medical condition, fibromyalgia.
[133]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T237 L12.
[134]Ibid T237 LL23-24.
[135]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 28 August 2015) T757.
[136]Ibid T761 LL20-30.

An affidavit of Dr Albert Leung was tendered without objection.[137] Dr Leung’s affidavit annexes a medical report dated 13 August 2015. Dr Leung’s report notes:

Ms Scerri presents with ongoing generalised pains with poor memory and concentration which can be an associated feature of people with fibromyalgia or pain sensation sydromes. Ms Scerri notes these symptoms were worse after the loss of her partner four years ago. She was unable to follow up on the previous recommendations due to her problems with swallowing tablets. I note from her previous review in 2013 she was anxious back then with short term memory problems looking after four children and being separated from her husband. There is some discordance with the timeline regarding her marital relationship which may reflect her impaired memory.

[137]Exhibit D1: Affidavit of Dr Albert Leung affirmed 14 August 2015.

A further matter which emerged during the course of the proceedings is that since approximately 2002, Ms Scerri’s sole source of income has been a single parent pension from the Commonwealth government. During the proceedings, I raised with Mr Young how it was that Ms Scerri reconciled her longstanding receipt of a single parent pension with her contention that during the period she was in receipt of this pension, she was also in a genuine domestic relationship with Mr Manlio. I raised with Mr Young the question of whether, if, as Ms Scerri contended, she was in a genuine domestic partnership with Mr Manlio, she would have had an entitlement to receive a single parent pension.

A letter from Ms Scerri’s solicitors to Centrelink dated 12 August 2015 was tendered in evidence. Relevantly, the letter provides:

On our instructions our client was in a domestic relationship with Romano Manlio (“the domestic partner”) from early 2008 up until the date of his death on 26 November 2011.
During this period our client was receiving Single Parenting payments. We are instructed that she verbally advised Centrelink staff at Watergardens that she was in the domestic relationship. She gave the staff Romano’s banking details to forward youth allowance payments to.
Our client has instructed us to advise you of the above. If there are any issues with the payments received by her, we ask that you please get in contact with our office so that proper arrangements can be made.

Ms Scerri gave evidence that when she commenced living with Mr Manlio, she told the staff at Centrelink several times about the relationship.[138] Ms Scerri’s evidence was that she was asked by Centrelink staff whether she was being supported by Mr Manlio and that she had said that she was not and that she supported herself.[139] Her evidence was that she informed Centrelink staff that Mr Manlio could not afford to support her and that he needed her help.[140]
[138]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T72 LL17-20.
[139]Ibid T73 LL28-31.
[140]Ibid T74 LL1-4.

It is not necessary for the Court to make any determination as to whether or not the circumstances in which Ms Scerri received the single parent pension breached any relevant legal obligation. It is to be recalled that Ms Scerri gave evidence that during 2010, she and her children were living at the Delahey property six nights per week. If, contrary to the findings set out above, I had accepted this evidence, a real question would have arisen as to whether Ms Scerri’s entitlement to receive the single parent pension would have been affected by such an arrangement.

For present purposes, the relevance of this issue is that it is one of a range of factors which should have weighed very heavily upon Ms Scerri’s legal advisers when they provided advice to her regarding both the merits and utility of her proceeding with the current application.

Ms Scerri is a single mother of limited financial means. She presently has a significant mortgage over her Burnside house as a consequence of the loans which she advanced to the company in 2009. In addition, she is a person of limited intellectual capacity and literacy skills. She suffers from a medical condition, one of the symptoms of which is poor memory. Save for the evidence given by Ms Vella, which had not been preceded by an affidavit, the evidence of Mr McNair, Mr Coates and Ms Borg, which I have accepted without qualification, was flagged by way of affidavit filed in advance of the hearing. That affidavit material placed squarely in issue the veracity of Ms Scerri’s account of her relationship with Mr Manlio, particularly in the six month period prior to his death. That evidence came from a number of individuals who, prima facie, had no axe to grind with Ms Scerri. It also included the evidence of Mr Manlio’s son, Anthony. Whilst Anthony Manlio does have a direct financial interest in the outcome of the present proceedings, it must be recorded that his evidence totally rejected Ms Scerri’s claims to have been in a domestic relationship with his father throughout 2010 and 2011.

In a case such as the present, the obligations of Ms Scerri’s counsel and solicitors extended well beyond those of an ‘honest foot soldier’ presenting the evidence to the Court and awaiting the Court’s determination of whether that evidence is accepted. I pointed this out to Mr Young within the first half an hour of the commencement of proceeding:

MR YOUNG: Your Honour, I readily accept and I'm not too sure I'm not giving anything away from my learned friend, I think he would say the same. We all understand this as higher stakes. And it's either you - basically, somebody's telling lies.

HIS HONOUR:        Yes. Exactly.
MR YOUNG:          And we're just the honest foot soldiers who have to run this case, Your Honour and - - -
HIS HONOUR:       Well, Mr Young, I'm not so sure if it's as simple as that. Depending on what the findings of fact may ultimately be, I don't know if you've seen my judgment in Gibb v Gibb. Are you familiar with that judgment?

MR YOUNG: No. No I haven't, Your Honour.
HIS HONOUR: Well, that's where I made orders directed to practitioners under the Civil Procedure Act in relation to costs. When I come to the view that a claim was advanced by one of the parties which was hopeless, that that had cost consequences for the practitioners. So depending on what ultimately the factual position is, if I'm on one side or other of the equation, the conclusion is the case is hopeless and either shouldn't have been run or shouldn't have been defended, that's a matter which potentially has implications under the Civil Procedure Act for practitioners. But again, I express no concluded view at all about that. But to make the obvious point, someone's sworn a false affidavit here. So the stakes are very high indeed.
MR YOUNG: Well, Your Honour the fact that parties or witnesses may have sworn false affidavits doesn't necessarily reflect on either solicitors involved.

HIS HONOUR: No, no it doesn't necessarily. But it may. That's all I'm saying.[141]

[141]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 24 August 2015) T6 L23 — T7 L23.

The circumstances of the present case required Ms Scerri’s legal representatives to vigorously assess the strength of her case to ensure that the risks of an adverse outcome were proportionate to the prospects of success. Such an assessment required careful consideration of the potential impact of failure for a person of very limited financial means. Based on the evidence before the Court, Ms Scerri does not have the financial resources to satisfy an order for costs arising from the current proceedings. On the material presently before the Court, I am not satisfied that such an assessment was undertaken.

I noted at the outset of this judgment the disconnect between Mr Young’s opening and closing submissions. The case was opened on the basis that for the months prior to Mr Manlio’s death, he and Ms Scerri were continually cohabiting at the Delahey property with three of Ms Scerri’s children. The picture presented by way of opening was of a happy and settled domestic arrangement. This picture quickly evaporated during Ms Scerri’s evidence-in-chief. By the time of Mr Young’s closing submission, he contended that for the six month period prior to Mr Manlio’s death, Ms Scerri and Mr Manlio did not live together at Delahey at all. This submission was contrary to the evidence of Ms Scerri and her daughter, Rachel. As such, it was tantamount to an invitation to the Court to reject their evidence on a matter critical to the outcome of the proceedings.

Section 18(d) of the Civil Procedure Act provides that a person to whom the overarching obligations apply must not make any claim in a civil proceeding that does not have a proper basis on the factual and legal material available at the time. Prima facie, Mr Young’s opening submission did not have a proper factual basis as it was inconsistent with Ms Scerri’s own evidence.

Both solicitors and counsel have a duty to the Court to prepare a case properly and to know the relevant law.[142] In the present case, the disparity on issues of critical importance between Mr Young’s opening submission and Ms Scerri’s own evidence-in-chief raises a significant question as to whether counsel and his instructing solicitors have complied with their duties arising under the general law and the Civil Procedure Act.
[142]R v Ivan Fergus (1994) 98 Cr. App. R. 313; See also D.A. Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 78 and 95.

The Court is mindful of the necessity to exercise caution before expressing any concluded view which is critical of Ms Scerri’s legal representatives. Doubtless, representing someone of Ms Scerri’s limited intellectual and literary capacity will have presented considerable challenges. Further, it must be acknowledged that Ms Scerri’s testimony was supported not only by her daughter but also by evidence from her three friends, Ms Borrelli, Ms Briffa and Mr Mifsud. Further, there was the objective evidence that a diamond ring had been purchased by Mr Manlio for Ms Scerri in June 2010. On one view, this material provided a legitimate foundation for Ms Scerri’s case to go to trial. On the other hand, a notable feature of the present case is the complete absence of any objective evidence in respect of 2011 indicative of a genuine domestic relationship between Ms Scerri and Mr Manlio. Mr Young tendered a CD which recorded the attendance of Ms Scerri and her children at Mr Manlio’s mother’s house at Christmas 2009. There was also footage of Ms Scerri and her children playing together with Mr Manlio outside the Delahey property at Easter 2010.[143] However, thereafter, there is no material to evidence an ongoing domestic relationship: no photographs, phone records, or Facebook page entries.
[143]Exhibit D9: Bundle of 18 photographs and Exhibit D10: CD.

The evidence in respect of Christmas 2009 and Easter 2010 brings into sharp focus the absence of any such evidence in the 18 month period prior to Mr Manlio’s death. The absence of such evidence was apparent during the cross-examination of Ms Borg, Mr McNair and Mr Coates. Save for Mr Young putting his instructions to these witnesses, they were not meaningfully challenged in cross-examination. Indeed, they manifested genuine surprise at many of the propositions put to them by Mr Young. At no point did Mr Young suggest, nor could he have, that these witnesses had any motive for telling anything but the truth. As noted above, individually and collectively, these witnesses spent considerable periods of time in the Delahey property between January 2010 and November 2011. Each gave evidence which was entirely inconsistent with the existence of a domestic relationship between Ms Scerri and Mr Manlio.

On the other side of the ledger, aspects of the case conducted on behalf of Ms Stagliano were most unsatisfactory. I have set out above the circumstances in which Mr Antill cross-examined Ms Scerri on the basis that furniture/whitegoods which she had purchased were not in the Delahey house. It reflects very poorly upon Ms Stagliano that she would provide instructions to her counsel that various items were not in the Delahey house, in which she had resided since November 2011. Those instructions were quickly withdrawn when Ms Stagliano was confronted with the prospect of the Court conducting an inspection of the Delahey house to determine for itself whether the items were in the property. This conduct is consistent with Ms Stagliano’s determination to defeat Ms Scerri’s claim at any cost.

During the course of Anthony Manlio’s evidence-in-chief, he was questioned by Mr Antill regarding his recollection of whether or not Ms Scerri and her children were in attendance at his grandmother’s at Christmas 2010. Before he had completed his answer to this question, it was necessary for the Court to intervene as follows:

HIS HONOUR: Stop a moment, I’ve just noticed your client is signalling to the witness, nods and shakes of heads (sic) in response to questions. If that doesn’t stop immediately, your client irrespective of being a party to these proceedings will be removed from the court.[144]

The statement set out above speaks for itself.

[144]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 26 August 2015) T410 LL12-16.

Ms Stagliano gave evidence that she found the engagement ring which had previously been purchased by Mr Manlio on 26 November 2011 whilst looking for his driver’s licence. Her evidence was that she found the ring in the top drawer of the buffet in the kitchen/family room at the Delahey house.[145] I accept this evidence because it is corroborated by the evidence of Ms Borg, who I have found to be a witness of credit. Ms Stagliano gave evidence that, prior to finding the ring on 26 November 2011, she had never discussed the ring with Mr Manlio and did not know of its existence.[146] This evidence is directly contrary to the contents of an affidavit which was filed by her prior to the hearing, which contained the following:

Romano never proposed to Maria, Romano told me the ring was bought as a thank you gift and Romano paid this off.[147]

[145]Transcript of Proceedings, Re Manlio (Supreme Court of Victoria, S PRB 2011 17403, McDonald J, 27 August 2015) T593 LL20-31.

[146]Ibid T745 LL1- 3.

[147]Ibid T745 LL13-16.

The inconsistency in Ms Stagliano’s evidence in respect of the engagement ring is another example of her preparedness to say anything which would undermine Ms Scerri’s case. Save for those instances where her evidence has been corroborated, I have placed little, if any, weight upon Ms Stagliano’s evidence. However, the Court records its finding that Ms Stagliano’s conduct in:

(a) Providing Mr Antill with instructions to cross-examine Ms Scerri on the basis that the furniture/whitegoods were not in the Delahey house in circumstances where Ms Stagliano plainly knew that they were; and

(b) Her attempts to improperly influence the evidence given by her son, Anthony,

prima facie constitutes a breach of Ms Stagliano’s overarching obligations under ss 20 and 21 of the Civil Procedure Act.

The Court has recorded no conclusion as to what orders for costs should be made. However, based on the findings set out above the following issues will fall for determination:

(a) If the Court does conclude that Ms Stagliano has breached ss 20 and/or 21 of the Civil Procedure Act:

(i) Should an order be made reducing the quantum of costs which the estate would otherwise have been entitled to; and

(ii) Should an order be made that the balance of the Estate’s costs should be paid personally by Ms Stagliano.

(b) If the Court determines that Ms Scerri’s legal representatives have breached their obligations under the Civil Procedure Act and/or their duty to the Court to prepare and conduct the case properly, should an order be made that they are not to render accounts to Ms Scerri (or if accounts have been rendered they should refund to Ms Scerri any fees which have been paid).

Ms Scerri’s application by her third amended summons dated 15 September 2015 is dismissed. Costs shall be reserved pending receipt by the Court of the following material:

(a) By 4.00pm on 12 February 2016 the solicitors for the plaintiff are to file an affidavit:

(iii) Exhibiting copies of accounts rendered to the plaintiff for professional costs of the proceeding;

(iv)Setting out the dates of any payment of those accounts; and

(v) Setting out the details of any unpaid professional costs of the plaintiff.

(b) By 4:00pm on 12 February 2016 the solicitors for the defendant are to file an affidavit:

(i) Exhibiting copies of accounts rendered to the defendant for professional costs of the proceeding;

(ii) Setting out the dates of any payment of those accounts; and

(iii) Setting out the details of any unpaid professional costs of the defendant.

(c) By 4:00 pm on 12 February 2016 the plaintiff, Ms Stagliano, has leave to file an affidavit together with written submissions, not exceeding ten pages in length, on the question of whether the matters set out in paragraphs 71, 92-93 of this judgment constitute a basis for the Court to make a finding that she has breached ss 20 and/or 21 of the Civil Procedure Act.

(d) By 4:00 pm on 12 February 2016 the solicitor on the record for the defendant and Mr Russell Young are to file written submissions not exceeding 15 pages in length, together with any affidavit upon which they wish to rely as to:

(i) Whether any order should be made that either or both of them are not entitled to render accounts to the defendant, or are to refund moneys paid in respect of accounts which have been rendered.

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21 December 2015