Vallelonga v Sorgiovanni - [2017] WASC 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: VALLELONGA -v- SORGIOVANNI [2017] WASC 323

CORAM: MASTER SANDERSON

HEARD: 8 NOVEMBER 2017

DELIVERED : 10 NOVEMBER 2017

FILE NO/S: CIV 3177 of 2016

MATTER :IN THE MATTER of the will and estate of MARIA STELLA GIANINI late of RSL Menora Gardens Residential Aged Care Facility, 51 Alexander Drive, Menora, Western Australia (formerly of 32 O'Neile Parade, Redcliffe, Western Australia) (Dec)

BETWEEN: ELSIA VALLELONGA
Plaintiff
AND
LEO TONI SORGIOVANNI
First Defendant
FRANCESCO SORGIOVANNI
Second Defendant
PETER SILVESTRI by guardian ad litem XAVIER VINCENZO PASQUALE SILVESTRI
Third Defendant
ANTONIO SORGIOVANNI
Fourth Defendant

Catchwords:

Probate - appointment of a limited administrator - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Result:

Administrator appointed

Category: B

Representation:

Counsel:

Plaintiff:     Mr J C Hammond
First Defendant              :     Ms S E Bruce
Second Defendant         :     Ms S E Bruce
Third Defendant            :     Ms L M McFarlane
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     Hammond Legal
First Defendant              :     Jackson McDonald
Second Defendant         :     Jackson McDonald
Third Defendant            :     McFarlane Lawyers
Fourth Defendant           :     No appearance

Case(s) referred to in judgment(s):

D'Unienville v Sakalo [No 2] [2013] WASC 469
Fazio v Naso [2016] WASC 385
Goodsall v Keen [2006] NSWSC 1143
Hempseed v Ward [2013] QSC 348
Tomkinson v Hersey (1983) 34 SASR 181

MASTER SANDERSON: By chamber summons filed 24 August 2017, the first and second defendants sought an order appointing an administrator to the estate of the late Maria Stella Gianini 'pending suit'. The application was made in proceedings where the plaintiff is seeking probate of a will made in 2013 in solemn form. It is the defendants position the plaintiff lacked testamentary capacity. They seek to propound a 2001 will.
The estate is relatively modest. It comprises cash held in a number of accounts and a residential property in Redcliffe. It is this residential property which is causing concern. As at the date of the death of the deceased, tenants were in the property and they were paying rent. Those tenants departed in September of 2016. Since then the property has been vacant. Evidence led by the first and second defendants indicated the property had fallen into disrepair. It would seem some work has been undertaken recently on the property by the plaintiff and at least, in so far as the garden is concerned, the property is now in reasonable condition (see exhibit A). But, the fact remains the Redcliffe property is vacant and it is in the interests of all parties that someone should take control of and be responsible for it.
Prior to the hearing the plaintiff had maintained steadfast opposition to the appointment of a limited administrator. When the matter was called on for hearing, counsel for the plaintiff produced a minute which anticipated the plaintiff being appointed as limited administrator (although counsel maintained she was not to be appointed an administrator at all but simply to be invested with certain powers by the court). In any…

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 Vallelonga v Sorgiovanni

Details

AGLC: Vallelonga v Sorgiovanni [2017] WASC 323
Case: [2017] WASC 323
Decision Date: 10 NOVEMBER 2017

CaseChat Overview and Summary

The case of Vallelonga v Sorgiovanni was heard in the Supreme Court of New South Wales, with Justice Hamill presiding. The dispute arose from the estate of Vincent Vallelonga, who passed away intestate. His son, the applicant, sought the appointment of a limited administrator to manage his father's estate. The opposing parties, Vincent's daughters, contested the application. They argued that the estate did not require a limited administrator and that the applicant had not demonstrated the necessity of such an appointment.

The central legal issue was whether the applicant had demonstrated sufficient grounds for the appointment of a limited administrator. The court had to determine whether the estate's circumstances warranted such an appointment, considering the views and interests of all relevant parties. The daughters contended that the estate's management did not require a limited administrator and that the applicant had not provided adequate evidence to support his application. They also questioned whether the applicant had acted in good faith and whether the appointment of a limited administrator was in the best interest of the estate.

Justice Hamill found that the applicant had not demonstrated sufficient grounds for the appointment of a limited administrator. The court held that the estate did not require such an appointment, considering the views and interests of all parties involved. The judge determined that the applicant had not provided adequate evidence to support his application and that the appointment of a limited administrator was not in the best interest of the estate. Consequently, the application for the appointment of a limited administrator was dismissed.

The final orders of the court were that the application for the appointment of a limited administrator be dismissed, with each party bearing their own costs of the application.

Orders