Saeedi v Pastrello - [2023] ACTSC 21

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 James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; 50 NSWLR 357 Lewis v Balshaw (1935) 54 CLR 188
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Saeedi v Pastrello

Details

AGLC: Saeedi v Pastrello [2023] ACTSC 21
Case: [2023] ACTSC 21
Decision Date: 10 February 2023

CaseChat Overview and Summary

Saeedi sought to transfer an application for the grant of probate in solemn form and a counter-claim from the ACT Supreme Court to the NSW Supreme Court, under the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). Pastrello opposed the transfer, arguing that the ACT was the appropriate forum. The central issue was whether the ACT Supreme Court should transfer the case to the NSW Supreme Court, considering the domicile of the deceased and the timing of the proceedings. The court considered the relevant provisions of the Cross-vesting Act and the relevant case law, including Re Estate of McInerney and Re Estate of O'Flaherty. The court held that the ACT was the appropriate forum for the proceedings, as the applicant had not demonstrated that the NSW Supreme Court was the more appropriate court, particularly given the issue of domicile and the timing of the proceedings. The court noted that the applicant had not provided sufficient evidence to establish that the deceased was domiciled in NSW at the time of death, and that the ACT proceedings had commenced before the NSW proceedings. The application was dismissed, and the costs of the application were to be costs in the cause.

Orders

Orders of the court

(1) The application filed 20 December 2022 is dismissed.

(2) Written reasons to follow.

(3) Costs of the application are costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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