Re Stefani; La Leggia v Roccisano - [2020] VSC 529

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2019 02867

IN THE MATTER OF the will and estate of SALVATRICE STEFANI

BETWEEN:

VINCENZA ADRIANA LA LEGGIA	Plaintiff
-v-
VINCENT MARIO ROCCISANO	First defendant
-and-
ANTONINO SPADA	Second defendant
-and-
ANTONELLA SPADA	Third defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 August 2020
CASE MAY BE CITED AS:	Re Stefani; La Leggia v Roccisano & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 529

---

PRACTICE & PROCEDURE — Application to strike out originating motion — Where plaintiff’s claims have no common question of law or fact and claims do not arise out of same transactions — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.02, 23.02(c)–(d).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H Kirimof	SMR Legal Pty Ltd
For the First Defendant	Hughes Legal
For the Second Defendant	Ms S Cherry	Goodman Group Lawyers
For the Third Defendant	Mr J Smith	Slater and Gordon Lawyers

HER HONOUR:

Introduction

Salvatrice Stefani died on 26 April 2017. She was survived by her three children: the plaintiff, and the second and third defendants.

Probate of the deceased’s will dated 27 June 2012 was granted to the first defendant on 27 June 2017. The first defendant was the deceased’s solicitor and prepared her will.

Plaintiff’s application

The plaintiff commenced this proceeding in the County Court by originating motion filed 21 December 2017.

On 15 March 2019, the plaintiff filed an amended originating motion seeking:

(a) pursuant to s 34 of the Administration and Probate Act 1958 (‘the Act’), an order removing the first defendant as executor of the estate of the deceased (‘the removal application’);

(b) a declaration that the estate be distributed in accordance with a settlement agreement dated 15 March 2017 exhibited to the plaintiff’s affidavit sworn 19 December 2017; and

(c) further and in the alternative to (b), a declaration that the plaintiff and the second and third defendants are liable to share the proceeds of the estate’s distributions to them in accordance with the heads of agreement exhibited to the plaintiff’s affidavit sworn 19 December 2017 (together with (b) ‘the declaratory relief’).[1]

[1]The plaintiff initially sought additional relief including a declaration that there was no ademption in respect of the sale of property of the deceased known as ‘the Mews’, that the beneficiaries of the estate would have the same interest in the estate had the sale not occurred and further provision from the deceased’s estate, pursuant to Part IV of the Administration and Probate Act 1958. Subsequently, this relief was abandoned by the plaintiff.

The plaintiff alleges that, having acted for the second and third defendants prior to the deceased’s death, the first defendant is in a position of conflict as the executor as there were irregularities in the second and third defendants’ administration of the deceased’s affairs. Although the originating motion does not itself…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Re Stefani; La Leggia v Roccisano and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 529
Decision Date: 24 August 2020

CaseChat Overview and Summary

In the case of Re Stefani; La Leggia v Roccisano, the plaintiff, La Leggia, sought an application to strike out the defendant, Roccisano's, originating motion, arguing that the claims of Roccisano did not share a common question of law or fact with La Leggia's claims, nor did they arise from the same transactions or circumstances. The dispute was heard in the Supreme Court of Victoria. The plaintiff contended that the claims in the originating motion were distinct and separate from the claims in the originating application, and that they did not meet the criteria for consolidation under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 9.02 and 23.02(c)–(d).

The primary legal issue before the court was whether the claims made by the defendant in the originating motion were sufficiently connected to those made by the plaintiff in the originating application to warrant consolidation. The court was required to determine whether the claims shared a common question of law or fact or arose from the same transactions or circumstances. The court also needed to consider whether the interests of justice would be served by consolidating the claims.

The court found that the claims made by the defendant did not share a common question of law or fact with the plaintiff's claims, nor did they arise from the same transactions or circumstances. The court held that the claims were distinct and separate, and that there was no sufficient connection between them to warrant consolidation. The court further found that the interests of justice would not be served by consolidating the claims, as it would result in unnecessary complexity and delay. Consequently, the court dismissed the defendant's originating motion and denied the application to strike out the originating motion.

The court's final order was that the defendant's originating motion was to be struck out, and that the claims made by the defendant in that motion were not to be consolidated with the plaintiff's claims. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders