Saeedi v Pastrello
[2023] ACTSC 21
•10 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Saeedi v Pastrello |
Citation: | [2023] ACTSC 21 |
Hearing Date: | 10 February 2023 |
DecisionDate: | 10 February 2023 |
Reasons Date: | 17 February 2023 |
Before: | Crowe AJ |
Decision: | (1) The application filed 20 December 2022 is dismissed. (2) Written reasons to follow. (3) Costs of the application are costs in the cause. |
Catchwords: | PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – whether an application for grant of probate in solemn form and counter-claim should be transferred to NSW – where domicile in issue – where proceedings commenced in ACT before commencement of proceedings in NSW – determination of which court was the more appropriate court – application dismissed |
Legislation Cited: | Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5 |
Cases Cited: | Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72; 8 ACTLR 13 Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2022] FCA 1515 |
Parties: | Kamyar Saeedi as executor of the estate of the late Lorenzo Pastrello ( Plaintiff) Luisa Sonia Pastrello (First Defendant) Eddy Louis Pastrello (Second Defendant) |
Representation: | Counsel C Lawrence, C Angus ( Plaintiff) G Blank (Defendants) |
| Solicitors Aulich Civil Law (Plaintiff) Unsworth Legal (Defendant) | |
File Number: | PRO 385 of 2022 |
Crowe AJ
Background
The application before me raises the question of which is the more appropriate court to determine the validity of a will made by the late Lorenzo Pastrello. Mr Pastrello died in hospital in Sydney on 4 August 2021. He was then 86 years of age. He was born in Italy and migrated to Australia where he initially worked on the Snowy Mountain Scheme. He then came to Canberra where he established himself as a successful builder and businessman.
Mr Pastrello married Carla (who died in 2011) in 1965. He and Carla had three children. I will refer to them, and their children, by their first names to avoid confusion. The children were: Eddy, Robert and Luisa. Eddy has two children – Daniel (aged 18) and Matteo (aged 15). Robert has three children – Carl (aged 22), Christian (aged 20) and Massimo (aged 19). Luisa does not have any children.
The evidence discloses that in 1998 Mr Pastrello made a will before two witnesses. A copy of that will is not in evidence, however it was common ground before me that in the circumstances which have occurred the estate would go to Eddy, Robert and Luisa in equal shares if it was found to be Mr Pastrello’s last will.
On 18 December 2020 Mr Pastrello signed a further will. He was at that time an inpatient at the Prince of Wales Hospital in Sydney. That will was drawn and witnessed by Ms T Herbertson, a Canberra solicitor. It was also witnessed by another Canberra solicitor, Mr M Mascitti. Both Ms Herbertson and Mr Mascitti had travelled to Sydney to take instructions and have the will executed. A video recording was made of these events.
The 2020 will purported to revoke all previous wills. It appointed Mr K Saeedi (the plaintiff) as Executor. Under that will the estate was to be divided into eleven parts. Eddy, Robert and Luisa were to receive two parts each. The five grandchildren were to receive one part each upon reaching the age of twenty-one years.
On 6 December 2021 Eddy and Luisa caused a caveat to be lodged with this Court requiring probate of any will of Mr Pastrello to be proved in solemn form. That is, the will would have to be proved to the satisfaction of the Court in a formal hearing.
On 12 May 2022 the plaintiff applied for probate of the 2020 will. On 25 May 2022, presumably in the light of the caveat, the plaintiff filed an application in proceeding seeking the grant of probate in solemn form. That application named Eddy and Luisa as defendants. Eventually the matter came before a Senior Deputy Registrar of the Court for directions on 24 June 2022. At that time the defendants’ solicitor advised that the defendants would be contesting the validity of the 2020 will and sought directions for the filing of pleadings. The matter was referred to McWilliam AsJ who, on 30 June 2022, and after hearing counsel, ordered that the matter proceed by pleadings. Her Honour set out a timetable for the filing and service of the pleadings.
The plaintiff filed his statement of claim on 22 July 2022. For reasons which are not clearly apparent, this document was placed on a new Court file (SC 286 of 2022). That claim sought an order for probate in solemn form of the 2020 will, and an order that the defendants (by then updated) caveat be set aside.
On 15 August 2022 the defendants filed a defence and counterclaim. The defendants pleaded that Mr Pastrello did not have testamentary capacity at the time of the making of the 2020 will, and that he did not know and approve of the contents of that will. It was also asserted that he did not intend that document to constitute a binding will.
By their counterclaim the defendants seek probate of the 1998 will, with the appointment of themselves (and Robert, with leave of the Court) to be executors. In the event that the validity of the 2020 will is upheld the defendants seek orders that the plaintiff not be appointed executor and that they (and Robert, with leave of the Court) be appointed as administrators to administer the provisions of the will.
On 19 September 2022 the matter again came before a Senior Deputy Registrar who made further directions as to the pleading timetable. Pursuant to those directions the plaintiff filed a Reply, and an Answer to the Counterclaim on 17 October 2022. The plaintiff in those documents put in issue the allegations of lack of capacity and maintained that the 2020 will was validly made.
The matter was listed before a Senior Deputy Registrar on 7 November 2022. On that occasion Mr Blank of counsel for the defendants advised that the defendants intended to commence probate proceedings in NSW. He foreshadowed an application to have the matters in this Court transferred to the NSW Supreme Court under the cross-vesting legislation. It is apparent that the Senior Deputy Registrar was of the view that the matter should be progressed notwithstanding the possible NSW proceedings. The Senior Deputy Registrar made further orders, including that affidavits of discovery be filed and served by 8 December 2022. The matter was adjourned to 12 December 2022 for further directions.
On 28 November 2022 the defendants (as plaintiffs) filed a Statement of Claim in the NSW Supreme Court. The plaintiff was named as the defendant in that claim. The pleading effectively replicates the allegations set out in the Defence and Counterclaim filed in SC 286 of 2022. The relief sought is the granting of probate of the 1998 will to the defendants. On that same date the defendants filed a notice of motion for the appointment of an administrator of the estate pending the outcome of the litigation.
The notice of motion was listed before Justice Hallen in the Supreme Court of NSW on 5 December 2022. His Honour questioned the commencement of the NSW proceedings given the litigation already underway in this court. He set a timetable for submissions on the issue of whether the NSW proceedings amounted to an abuse of process and relisted the matter on 13 February 2023.
Meanwhile, on 8 December 2022 the plaintiff filed and served his affidavit of discovery. The defendants have yet to comply with the direction made on 7 November 2022. Moreover, when the matter returned before the Senior Deputy Registrar on 12 December 2022 there was no appearance by the defendants. On that occasion the matter was adjourned to 30 January 2023 for further directions. The defendants were ordered to pay the plaintiff’s costs of the directions hearing on 12 December.
On 20 December 2022 the defendants filed (in the ACT probate proceedings, PRO 385 of 2022) an application in proceeding seeking an order, pursuant to s 5(2)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) (the Act) for the transfer of the matter to the Supreme Court of NSW. (In the course of submissions it became clear that the application related to both the probate matter and to SC 286 of 2022).
On 30 January 2023 the ACT matters were again before a Senior Deputy Registrar for directions. On that occasion the matters were stood over to 20 February 2023, having regard to the pending cross-vesting application.
That application came before me for hearing on 10 February 2023, when Mr Blank represented the defendants, and Mr C Lawrence and Ms C Angus represented the plaintiff. After consideration of the evidence and the submissions of counsel I ordered that the application in proceeding be dismissed. I also ordered that the costs of the application be costs in the cause. The following sets out my reasons for ordering the dismissal of the application.
The Evidence
The defendants relied on the affidavit of Eddy dated 16 December 2022. The plaintiff relied on the affidavit of Robert dated 7 February 2023, and his own affidavit dated 8 February 2023.
It is not necessary to set out the detail contained in the affidavits other than the following, which were not controversial:
(i)Mr Pastrello’s estate consisted of movable property in both the ACT and NSW. He also owned real property (both residential and commercial) in each jurisdiction. The total net value of the estate exceeds $80m, of which about 75% is represented by assets in NSW.
(ii)Eddy lives in Bidges Road, Sutton, just across the northern border between the ACT and NSW.
(iii)Robert and his family (including his sons) also live in Bidges Road, Sutton. Robert’s solicitor is based in Canberra.
(iv)Robert’s sons have sought legal advice about the wills dispute from a Canberra solicitor.
(v)Luisa lives in Canberra (in one of the estate properties).
(vi)The defendants’ solicitor and counsel are based in Sydney.
(vii)The plaintiff and his solicitor are Canberra based, although his counsel are from Sydney.
(viii)Ms Herbertson and Mr Maschitti practice in Canberra.
(ix)Mr Pastrello’s long term accountant, Mr Gelonesi, has his offices in Sydney.
(x)Mr Pastrello’s treating doctors, whose evidence might be relevant to a greater or lesser degree, are mainly located in NSW (although Dr Kulh was practising in rooms at Braddon in the ACT, and Dr Chen was at Goulbourn in early 2019).
(xi)Mr LoPilato, who was appointed as Mr Pastrello’s financial manager by the ACT Civil and Administrative Tribunal on 30 June 2020, is in Canberra.
(xii)It is likely that the expert witness or witnesses to be qualified by the parties will be Sydney based.
(xiii)The carers who Mr Pastrello employed from around 2019 are based in Canberra.
(xiv)Both Eddy and Robert may have claims in equity in relation to the parcels of land on which they live.
There was conflicting evidence as to Mr Pastrello’s domicile at the time of his death. It is not possible for me to determine that issue on the evidence relied on in this application. There appears to be agreement that for many years Mr Pastrello resided in the family home at Deakin in the ACT. Suffice to say that the issue is complicated by Mr Pastrello’s habit of staying in a cabin at Eaglehawk from about 2017, and his need for lengthy hospitalisation in Sydney in late 2019, and again from late 2020 onwards. I will return to the question of domicile below.
Submissions
Defendants
Mr Blank for the defendants relied on s 5(2)(b)(i) and (iii) of the Act. Those provisions relevantly state (emphasis in original):
(2) If—
(a)a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court); and
(b)it appears to the first court that—
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
...
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
Mr Blank referred to authorities such as Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2022] FCA 1515 and James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 to support the proposition that the decision under both s 5(2)(b)(i) and (iii) of the Act essentially required the Court to assess which Court was, in all of the circumstances of the case, the more appropriate venue for determination of the litigation. In making that assessment Mr Blank accepted that the criteria set out by Refshauge J in Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72; 8 ACTLR 13 (Bateman) at [68]-[70] should be applied.
There was no issue that in making the assessment it should be assumed that if the matter were transferred to the Supreme Court of NSW it would be heard by that Court in central Sydney.
The defendants argued that the NSW court was more appropriate because:
(i)No weight should be given to the plaintiff’s choice of venue. The current proceedings in this Court have not progressed very far, such that it can be said that they are close to a hearing date;
(ii)The preponderance of real property in the estate is in NSW. The law of that State will therefore apply to the administration of that property. If probate is granted in the ACT it will have to be re-sealed in NSW. Having regard to the decision in Lewis v Balshaw (1935) 54 CLR 188 (Lewis v Balshaw) there was a prospect that the resealing application might be contested;
(iii)The defendants have made an application for the appointment of an administrator pendente lite in the proceedings commenced in NSW. Unless an administrator is appointed the land in NSW (which includes commercial sites) will remain unsupervised;
(iv)No application has been made to cross vest the NSW proceedings to this Court. The plaintiff’s approach has been that the proceedings should simply be struck out;
(v)If Robert and/or Eddy were to make claims in equity in relation to the properties on which their homes are situated the resolution of such claims would involve the law of NSW;
(vi)The convenience of witnesses, including expert witnesses favours a hearing in Sydney; and,
(vii)Because counsel briefed by both sides are Sydney based, and the defendant’s solicitor is in Sydney, costs would be saved if the matter is heard in the NSW Supreme Court.
The Plaintiff
The plaintiff did not take issue with Mr Blank’s statement of the principles to be applied. However, Mr Lawrence argued that having regard to all of the circumstances I should conclude that this Court is the more appropriate one, or, alternatively, that I could not reach any conclusion on the issue with the result that the application in proceeding should fail. This latter argument relied on what was said by Refshauge J in Bateman at [69].
Mr Lawrence submitted that:
(i)While no particular weight should be given to where the plaintiff commenced proceedings it was significant that the matter had progressed some way towards a hearing, while the NSW matter had not progressed at all;
(ii)The only reason why the discovery process has not been completed in this Court is because of the defendants’ unexplained failure to comply with orders of the Court;
(iii)The law to be applied to the grant of probate is that of Mr Pastrello’s domicile. It was argued that his domicile was at his home in Deakin in the ACT. Even if his domicile is found to be NSW there is no discernible difference between the ACT and NSW in the law to be applied in determining the validity of the 2020 will;
(iv)The estate contained significant real property assets in the ACT. These will have to be administered under the laws of the Territory;
(v)The movable assets of the estate include shares in companies which own the businesses which are conducted at the “Eaglehawk” complex in NSW just north of the border with the ACT. Those assets will have to be administered in accordance with the laws of Mr Pastrello’s domicile at the time of his death;
(vi)Neither the 1998 will nor the 2020 will contain specific gifts of immovable property in NSW, moreover there is no family provision or notional estate application which would require specific orders to be made to the real property in NSW;
(vii)The possibility of equitable claims by Eddy and/or Robert is not relevant at this stage. No such claims have been made, and if and when they are made they can be dealt with by the executor in the Supreme Court of NSW at that time;
(viii)There is no evidence of any urgent necessity for the appointment of an administrator pending the completion of the litigation; and,
(ix)While the convenience of witnesses and legal representatives is relevant it is not the determinative factor. In any event, it is said that the balance favours this Court as being the more appropriate venue. The defendants refer to:
(a)The proximity of the defendants to Canberra as opposed to central Sydney;
(b)Ms Herbertson and Mr Maschitti are professional persons based in Canberra;
(c)While it is conceded that counsel and the defendants’ solicitor are Sydney based the plaintiff’s solicitor is in Canberra. More importantly, the plaintiff himself is a professional person who practices in Canberra;
(d)While some medical witnesses may be in Sydney many of Mr Pastrello’s treating practitioners in the last years of his life are based in or nearby to Canberra;
(e)Mr Lopilato is located and based in Canberra. It is not to the point that he has an office in Sydney.
This Court is the More Appropriate Court
At the completion of the hearing, and after considering the evidence and submissions of counsel, I informed the parties that I had reached the conclusion that this Court was the more appropriate one in all of the circumstances. I came to that conclusion because:
(i)Contrary to the submission of the plaintiff the proceedings in this Court have made real progress towards a hearing date. Indeed if it was not for the non-compliance of the defendants it would be reasonable to expect that discovery would have been completed by now. On the other hand the NSW proceedings have stalled at the first hurdle. There is a risk that they may be struck out. It seems to me more likely that the claims to be litigated here would obtain an earlier hearing date in the ACT than in the Supreme Court of NSW;
(ii)While the issue of domicile is not straightforward there is nothing unique about the law of NSW which would suggest that it was preferable for a Court of that jurisdiction to determine Mr Pastrello’s domicile;
(iii)Similarly, in the absence of family provision claims and a notional estate application the Supreme Court in each jurisdiction is equally qualified to determine the question of Mr Pastrello’s testamentary capacity, and whether he knew and approved of the contents of the 2020 will, and indeed intended it to be his binding will;
(iv)The existence of real property in both jurisdictions creates the possibility that before probate is granted there may be a need for an interim application, such as that which the defendants have made in NSW. However, there is no evidence of such a need at this time. Insofar as a need arises for specific orders to be made in relation to real property in the ACT or NSW it may well be that whichever Court is tasked with managing the current litigation will be required to exercise cross vested jurisdiction from the other State/Territory. It seemed to me that this possibility did not tip the balance one way or the other;
(v)Insofar as, after probate is granted, there is a need for the executor to take specific action with respect to the real property in NSW it would be a relatively straightforward step to obtain the resealing of the grant in that State. While it is true that Lewis v Balshaw provides the theoretical possibility that the defendants might contest the reseal application they would of course be bound by any final judgment of this Court on the issues raised in the current litigation. I did not accept Mr Blank’s argument on this issue;
(vi)I accepted the plaintiff’s argument in relation to the possibility of claims in equity by Eddy and/or Robert. I did not see the issue as relevant to the questions of the validity of the 2020 will or who should be appointed as executor/administrators of that will should it be upheld as valid;
(vii)The relative convenience of each venue for witnesses and legal representatives is finely balanced. However, it seemed to me that the fact that the parties, and also the potential beneficiaries under the 2020 will (including the grandchildren), all reside in or close to Canberra tips the balance towards maintaining the proceedings in this Court. Insofar as there is need for Sydney based medical witnesses to give evidence that can be done remotely. It has become common for expert evidence to be given by audio visual link should that be the most efficient and cost effective way of that evidence being taken. (That is always subject to the proviso that there is no unfairness to either party in such a course being adopted). It may also be possible for the evidence of Mr Gelonesi to be taken via AVL. I do not see the possibility that there may be some extra costs incurred as a consequence of counsel being based in Sydney as sufficient to outweigh the convenience of the parties and beneficiaries being able to attend this Court for the purpose of interlocutory hearings, and indeed, the final hearing.
Disposition
Having concluded that this Court was the more appropriate court, and that it was not in the interests of justice that matters PRO 385 of 2022 and SC 286 of 2022 be transferred to the Supreme Court of NSW it followed that the defendants’ application in proceeding filed on 20 December 2022 should be dismissed.
I should add, by way of comment, that it was not clear from the pleadings in SC 286 of 2022 that the place of Mr Pastrello’s domicile at the time of his death was in issue. That became apparent in the affidavits filed in relation to the application in proceeding. It will be necessary for the issue of domicile to be determined in the analysis of whether the law to be applied in granting probate is that of the ACT or NSW. Indeed, having regard to the composition and complexity of the movable property in the estate it seems to me that there would be benefit in the Court making a declaration as to Mr Pastrello’s domicile at the time the decision is made as to the validity of the 2020 will. The parties may wish to consider amending the pleadings to reflect this.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: K Cummings Date: 17 February 2023 |
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