Tiirola v Parlato

[2015] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Tiirola v Parlato & Ors [2015] QDC 3

PARTIES:

TIRMALA TIIROLA

(Applicant)

v

MICHAEL ANGELO PARLATO, SONIA CHRISTINE BALLEN AND ANITA MARIA BAILEY AS EXECUTORS OF THE ESTATE OF ANGELO PARLATO (DECEASED)

(Respondents)

FILE NO/S:

2999/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 January 2015

DELIVERED AT:

Brisbane

HEARING DATE:

27 January 2015

JUDGE:

Reid DCJ

ORDER:

Order as per initialled draft placed with the papers

CATCHWORDS:

APPLICATION – Further provision from estate – Direction – Non-compliance with Practice Direction – Costs

SOLICITORS:

H. Drakos & Company Pty Ltd for the Applicant

de Groots Wills and Estates Lawyers for the Respondents

1. This action is one by the applicant for further and better provision from the estate of her former partner, Angelo Parlato.  The respondents are the children of Mr Parlato and the executors of his estate.  The originating application was filed on 5 August 2014.

1. Practice direction No 8 of 2001 provides that a draft directions order is to be served with the originating application.  The form and content of the directions order are set out in the practice direction.  The practice section provides for the respondent, within 14 days of service of the originating application, affidavits and draft directions order to either:

1.          Sign and return the draft order to the applicant or her solicitor; or

2.          Advise of any matter in the draft directions order with which the respondent disagrees and put forward an alternative proposal.

1. Clause 9 of the practice direction then provides for the filing of the draft order or, in the event of disagreement, requires a party to “use their best endeavours to resolve that disagreement”. It is only if the parties are unable to agree on the terms of the directions order that either party may list the application for directions.  14 days notice of such an application is required to be given.

1. Before me, consent orders were made. The issue I am required to determine concerns the costs of the application.

1. The application for directions was filed on 15 December 2014 and was returnable on 27 January 2015.  I was told the respondents’ agreement to the terms of the order made by me was sent by email to the applicant’s solicitor only on Monday 26 January 2015, a public holiday.  The applicant’s solicitor said the email was only seen by him on his return to work on the morning of the 27^th.

1. An affidavit of Constantine Castrisos, the applicant’s solicitor, filed 15 December 2014 discloses:

1.          On 15 October 2014 he wrote to each of the respondents noting that there had been no response from them in relation to the proposed directions and indicating that if there was no satisfactory response within seven days he would seek directions from the court;

2.          On 21 October the respondents’ solicitor wrote to the plaintiff’s solicitor (by letter wrongly dated 2 October 2014 but sent by email on 21 October) advising that they were seeking instructions from the respondents and would be in touch in due course;

3.          On 13 November 2014 the applicant’s solicitor again wrote to the respondents’ solicitor referring to a phone conversation between them of 24 October in which the respondents’ solicitor advised he was seeing the respondent “in the first week of November”.  The letter requested confirmation of the respondents’ instructions within seven days;

4.          On 27 November 2014 the applicant’s solicitor again wrote noting that they had received no response from the respondents’ solicitor and again seeking confirmation of the respondents instructions within seven days;

5.          On 11 December 2014 at 7.30am the respondents’ solicitor advised he was out of the office until “late this afternoon but will ring you on my return to the office later today”.  At 8.42 the applicant’s solicitor advised the respondents’ solicitor that he was in the process of filing an application for directions and sought a suggested timeframe from the respondent “so we can finalise”.

1. There was no response to that request.

1. The application for directions was filed only on 15 December, four days after this last exchange of emails of 11 December.

1. In a further affidavit of Constantine Castrisos that was filed by leave before me that Ms Castrisos exhibits a letter from the respondents’ solicitor 15 December 2014.  For some reason that letter was not received by the applicant’s solicitor until 5 January 2015. No explanation was given for this delay. In any case the letter would clearly have not been received in the usual course of post until after the filing of the application on 15 December.

1. In that letter the respondents’ solicitor indicated the respondents “do not accept” the applicant “is an eligible applicant under Part IV of the Succession Act.”

1. In that circumstance they indicated they did not intend to sign the draft directions order.  They urged the applicant to discontinue her application for further and better provision and said the application would be strenuously opposed.

1. On 12 January 2015 the applicant’s solicitor again wrote to the respondents’ solicitor.  It is clear from that letter that the application for directions filed on 15 December and supporting affidavit had been served on the respondents’ solicitor on 17 December.  The applicant’s solicitor asked the respondents’ to “advise of your client’s instructions in this regard”.

1. The letter continued:

“In the event that your client does not accept that our client had a defacto relationship with the deceased… we can only suggest they file their affidavit material to support such contention and the parties’ agree to a hearing date on the civil list to resolve such dispute”.

1. Finally on 26 January 2015, a public holiday and the day prior to hearing of the application, (which hearing date had been notified to the respondent on 17 December) the respondents’ solicitor’s wrote to the applicant’s solicitor, in maintaining their client’s stance that the applicant was not an eligible applicant, but proposing directions contained in the draft order as ultimately provided to me.

1. It can be seen that at no time did the respondents’ solicitor propose an alternative to the applicant’s proposed directions hearing from the time they were served prior to 15 October 2014 until 26 January 2015.  It is not suggested there is any proper reason for this inordinate delay.  The practice direction requires the respondent to agree to the draft directions order within 14 days of service or propose alternative proposals within that time.

1. The absence of any attempt by the respondent to comply is entirely unexplained.

1. In my view the applicant’s solicitor was entirely justified in bringing the application and the respondents should pay the costs made necessary by their failure to comply with the practice direction.

1. I order in terms of the draft order provided to me, including cl 6 thereof whereby the respondent is ordered to pay the applicant’s costs of and incidental to the application.