Angela Therese Harvey (nee Alecci) v Eileen Therese Alecci & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Tuesday 17 September 2002 ex tempore Revised Friday 27 September 2002

2868/02 Angela Therese Harvey v Eileen Therese Alecci & Anor JUDGMENT 1 In proceedings 2868 of 2002 concerning the estate of Carmello Antonio Alecci, there is before the Court a notice of motion brought by the plaintiff filed on 17 September 2002. 2 The record will show that the statement of claim filed on 28 August 2002 is a statement of claim in which the plaintiff, who is the youngest child of the first defendant, Eileen Therese Alecci, and the late Carmelo Antonio Alecci, ("the deceased"), sues the first defendant and her brother, Dominic Joseph Alecci. 3 The deceased died on 4 September 1964 and no will was located, so that letters of administration on intestacy were granted to the first defendant on 3 May 1965. An administration bond dated 11 March 1965 in respect of the first defendant's administration is said to remain undischarged. 4 Under the intestacy rules which operated at the time of the deceased's death, the following beneficiaries were entitled in their respective shares set out below to the distribution of the estate of their late father: One-third to the first defendant as the widow of the deceased; Two-fifteenths to each of the children of the deceased and the first defendant, those children being the second defendant, Dominic Joseph Alecci, and Giovanna Marie Alecci, Linda Francesca Alecci, Eileen Agata Alecci and the plaintiff, Angela Therese Alecci. 5 As the statement of claim discloses, the allegations made by the plaintiff concern centrally dealings in relation to the estate of the deceased over an extended period of time, and the claims made include claims that the first defendant has not provided an account of her dealings with the assets and liabilities, and income and expenses of the estate of the deceased either at any time or, alternatively, from 1 June 1966 accounts having been filed. 6 The statement of claim further contains a number of allegations of wrongdoing by both defendants. I do not intend to repeat the matters to be found in the statement of claim save to set out paragraph 22: "The first defendant is liable, pursuant to the breaches described in 17:

(1) to account to the estate of the deceased and to the plaintiff and the other beneficiaries of the estate of the deceased as described in 13(1) and not to receive reimbursement or credit for any amount claimed by her or claimed to have been paid or distributed by her (whether out of her own or estate monies) which cannot be vouched by proper records which she ought to have kept for that purpose and has not kept in breach of the duties described in 13(2)(A) to (E);

(2) to account and pay over to the estate the aggregate amount of at least $487,497.00, being the aggregate net rental which ought to have been paid by her during her occupation as described in 9 or obtained by her as described in 10 between 1 July 1977 and 1 July 2002, together with interest thereon at trustee rate of 8% per annum simple calculated on each year's component of that net rental from the time at which that component ought to have been paid;

(3) to account and pay over to the estate the amount of $5,631.30 pursuant to the breach described in 13(2)(F), being the difference between the value of the business Roberts Shoe Repairs disclosed in the affidavit D sworn by the first defendant on 17 March 1965 and supported by a valuation attached thereto ($8,031.30) and the amount claimed by the first defendant to have been the sale price of the business on its sale in 1974 ($2,400.00), together with interest thereon at trustee rate of 8% per annum simple from either 4 September 1965 or 3 May 1966; and

(4) to account and pay over to the estate the value of the piano described in 10 or at her own expense to recover such piano fro m Linda and to put it into good condition and repair for the benefit of the estate." 7 Paragraph 22 followed an allegation of breaches of duties of the first defendant as administrator and to the extent that this be found, as trustee of the deceased's estate. 8 The application by the plaintiff for the first of the orders in the notice of motion is grounded upon the proposition that if the plaintiff be successful in obtaining orders reflecting the allegations of liability set out in paragraph 22 of the statement of claim, then the amounts which ought be retained from the first defendant's share of the pending completion and proceeds of sale of the property described in certificate of title volume 4960 folio 93, should be an amount in the order of $400,000. The position is that it is common ground that a fairly successful apparently auction of 14 August, led to a sale of the subject property in the sum of $1.27 million as the gross purchase price. 9 The orders of the Court made on 26 June 2002 dealt with a consensual regime pursuant to which the property was to be sold and the second defendant, after payment of reasonable costs of the sale of the land, was to distribute the balance of the proceeds of sale to the beneficiaries of the estate of the deceased in accordance with their respective entitlements on intestacy which I have already identified, subject to $100,000 or such other amount as may be directed by the court being retained by Mr Poole, solicitor, from the first defendant's share of the proceeds of sale to be invested on trust for the first defendant pending the completion of the proceedings or further order of the Court. The order recognised that the first defendant would be entitled to receive the interest on that sum. 10 Effectively, the plaintiff's application today has been for the Court to order some other amount than the amount of $100,000 reflected in order 5.5(a) of the Court's orders of 26 June 2002. 11 Mr Burton of counsel appears for the plaintiff and Mr Harris of counsel appears for both defendants. Mr Harris's central proposition opposing the making of an order varying order 5.5A by substituting an amount in the order of $400,000 for the amount of $100,000, centred upon the state of the record, it being, as he pointed out, quite clear that currently the proceedings are constituted in a fashion such that two only of the children of the deceased are parties to the proceedings and their mother is the first defendant. 12 Mr Harris's proposition was that notwithstanding that the statement of claim in effect seeks orders which, if ordered, will enure for the benefit of the whole of the estate, the plaintiff has not sought or obtained leave to bring the proceedings in a representative capacity on behalf either of the estate or of the relevant trust. Mr Harris's proposition was that in those circumstances, the plaintiff in terms of the plaintiff's interest in the occupancy fee, would be entitled to no more than approximately two-fifteenths. In dollar terms, this translates into approximately $60,000 or $65,000, a considerable shortfall from the amount now sought by the plaintiff to be retained. 13 In my view, there may be some substance in Mr Harris's submission but, as I see it, this is simply essentially a matter of procedure and form. To my mind, it is very important in relation to these proceedings that when the proceedings do come on for hearing they be properly constituted lest by reason of a loose end such as failure to join all of the children, the trial judge find that the hearing aborts or the plaintiffs have an obstacle of a procedural and technical nature which this family, I would imagine, can ill afford, bearing in mind the legal costs and expenses which will be tangential to and involved in a full flight final hearing - the matter currently moving towards receiving a hearing date. 14 As I understand the position from Mr Harris's side of the bar table, recently Mallesons have, notwithstanding an earlier indication that their client may wish to be involved in the proceedings, now communicated an indication that their client does not wish to participate in the proceedings as a party, nor to intervene in any capacity. That then leaves for consideration the position of Linda Alecci (now Johnson) and the position of Eileen Alecci (now Simmons). Neither Linda nor Eileen are plaintiffs, nor are they and nor is Maria Alecci (now Kruger) a defendant. 15 Certainly Maria, Linda and Eileen should be given a proper opportunity, if they are disposed to do so, to apply to be joined as parties on either side of the bar table as plaintiffs or as defendants. It does not sound as if, from the Mallesons communication, Maria wishes to be joined on either side of the bar table, and the Court is currently not aware as to what attitude Linda or Eileen may take, depending upon legal advice that they may receive. 16 In the circumstances, it seems to me that the most prudent course, and the convenient and practicable course, is today direct that Maria, Linda and Eileen be joined as defendants to the proceedings. At the same time I make very plain that as soon as they have obtained legal advice, if any of them wish to apply forthwith to the Court to have the order joining them as a defendant revoked and to be joined as a plaintiff, I would automatically and without any question so order. In short, although they are going to be this morning joined as defendants, each of them has an opportunity to correct that, should they wish to become plaintiffs, without any problem at all. 17 They will need to obtain legal advice as to whether or not they should seek to be joined as plaintiffs. Presumably that legal advice may inform them that if they are joined as plaintiffs they will have a far higher risk of being exposed to legal costs, should the plaintiffs fail in the proceedings, than the risk, if there is any, of their being exposed to costs as defendants. I presume that they may, for example, simply file submitting appearances as defendants and they may not be represented during the course of the hearing, in which event, whilst the matter is of course totally for the trial judge, it would seem to me to be very surprising if they would be ordered to pay any costs of the proceedings, and very surprising if the appropriate order at the end of the day was not that all of their costs of and occasioned by their joinder be paid out of the estate. However, these are matters which they may wish to take up with their own legal advisers. 18 My central concern in joining them as defendants today is a concern with keeping the expedition date of Friday before Justice Young so that hopefully his Honour may, even though they are now being joined, still fix the case for hearing. Hopefully, if submitting appearances are to come forward from their legal advisers, they will be filed this week and Justice Young will be advised accordingly, and in any event hopefully their position will be made plain to Justice Young to Friday of this week. 19 I strongly commend each of Maria and Linda and Eileen to make certain that their position in relation to the proceedings is the subject of formal record before Friday. If they are intending to simply submit to the Court's orders, that can be by a submitting appearance. If they intend to take an active part in the proceedings and to brief their own solicitors and counsel, although that will no doubt add to the costs of the proceedings and may reflect upon their entitlement to obtain costs out of the estate, these are matters which should be clarified if at all possible before Friday. 20 In the circumstances, I propose to vary the $100,000 amount provided for in paragraph 5.5A of the orders of 26 June 2000 by substituting the amount of $400,000 in its place. I am cognisant of the fact that the plaintiff claims that something in excess of $400,000 should be retained, but it seems to me that that is a reasonable sum which in all of the circumstances more properly reflects the proper exercise by the Court of its discretion. 21 That leaves the other two matters dealt with in the notice of motion and they are these. In paragraph 2 of the notice of motion the plaintiff seeks an order referring the proceedings to compulsory mediation. In paragraph 3 of the notice of motion the plaintiff seeks an order that the first defendant be separately represented from the second defendant. 22 The affidavit evidence read today makes plain it seems to me, as does the material on pages 14 to 39 of exhibit AH1 to the affidavit of Angela Therese Harvey made on 24 May 2002, that the very regrettable fact is that this family is at a state of internal enmity as would make very doubtful the prospects of a successful mediation. It seems from the correspondence to which I have referred that for a very long time the atmosphere of unhappiness amongst the five children and as between either all four otherwise than the plaintiff or quite a number of those four and their mother, has been one of a considerable standoff in terms of the circumstances which the plaintiff complaints of and which the defendants deny in the pleadings, and a considerable standoff in terms of the ultimate fate of these children in terms of their mother's estate. 23 A fairly alarming state of affairs seems to be being suggested by the plaintiffs in some of the affidavits, which I have today read, concerning their allegation that affidavits which purport to be made by their mother may be irregular. These affidavits are replete with questions concerning whether their mother did sign relevant affidavits and who witnessed the affidavits. Mr Burton has not shrunk from the submission that there is, so he submits, a high question mark as to whether or not the first defendant has given proper instructions for not only the part she is to take in the proceedings, but in terms of the affidavits filed and apparently signed by her. 24 During the course of the hearing of the interlocutory motion, Mr Harris was at pains to make clear that in answer to these allegations he wished to call his instructing solicitor to deal with the circumstances, as I gather, of the retainer by his instructing solicitor, by the first defendant of his instructing solicitor, and to negate the proposition that there is anything untoward at all with the ability of the first defendant to give proper instructions to his instructing solicitor and to negate the proposition that there was anything inappropriate or untoward or which should cause the Court to consider an order for separate representation. 25 Mr Burton then sought to rely upon these, so he submitted, high question marks in relation to what it is that has been the first defendant's understanding of the proceedings and instructions as to affidavits and other matters, and to rely upon that line of country in support of the proposition that for that reason, even though this family is at a stage of real enmity, a mediation should be ordered. As I understood him, the proposition for which he contended was that having an independent mediator would at least give the mediator an opportunity to directly speak with the first defendant, and speak with her in the absence of anyone else and obtain her instructions. 26 Whilst that submission is certainly one of substance, the difficulty I have with the submission is simply this. It is effectively an attempt by a party to erode the retainer by another party of a particular firm of solicitors in proceedings. It is, as it were, an indirect way of outflanking the need for a Court order to have separate representation and an open and frank application put on the basis of a need to, so it is said, ascertain by this form of vehicle, just where the first defendant stands, and I presume whether or not there was some impropriety involved in the filing of affidavits under her name and the like. 27 The Court in circumstances such as these places very high reliance upon the legal professional obligations and particularly ethical obligations of solicitors and counsel. A solicitor of this Court very well knows what is required in terms of a very close examination in some cases, and I suggest this is one such case, of whether or not a conflict of interest makes plain that the solicitor should not be acting for both defendants. Likewise, a solicitor of this Court would well understand and should understand the importance of ensuring that proper instructions are received from that solicitor's client, and the solicitor's obligation is to ensure that no affidavit which is filed under his firm's name on behalf of any deponent or party to proceedings is an affidavit otherwise than correctly reflected at the time it was executed, that deponent's instructions. In my view, this is a case in which the Court should make very clear to the current solicitor for the defendants, the importance of revisiting those ethical obligations and those matters to again confirm, if confirmation be required, that there is absolutely no difficulty in the conflict area and in the area of being entirely satisfied that these affidavits do reflect the first defendant's instructions, and were properly obtained and executed at the time when they were obtained and executed. 28 It seems to me that it is not appropriate presently for the Court to do otherwise than make these observations. The interests of all beneficiaries including the first defendant, who is an aged lady and who no doubt I infer could well do without the family enmity which seems to have been aggravated by these proceedings, should be heard and disposed of as quickly as is practicable in all of the circumstances. 29 For those reasons and notwithstanding my usual view, which would be that in most family circumstances it would be a very useful thing to order a mediation, the state of enmity of this family is not such, it seems to me, as makes that course viable, possible, responsible or a proper exercise of the Court's undoubted discretion by compulsory order to order a mediation. For those reasons and in those circumstances, the orders sought in paragraphs 2 and 3 of the motion will not be made, and an order is made in the following terms. 30 I order that pursuant to paragraph 5.5A of the order dated 26 June 2002 there be retained the amount of $400,000 of the first defendant's share of the proceeds of sale of the land described in paragraph 5.5A of the order dated 26 June 2002, which sum of $400,000 is to be retained on the same terms as presently appear in paragraph 5.5A. Otherwise, paragraphs 2 and 3 of the notice of motion filed on 17 September 2002 are dismissed. 31 In relation to costs of the notice of motion, Mr Harris has sought an order that the plaintiff pay the defendant's costs of the notice of motion. Mr Burton has conversely sought an order that all or part of the costs of the motion be paid by the defendants. 32 In my view, the appropriate order to be made in relation to the notice of motion is that the costs of all parties in relation to the notice of motion be paid out of the estate on an indemnity basis. The proceedings, it seems to me, are generally of a procedural nature and the applications made are applications which, it seems to me, were directed at the efficient bringing to an end of the proceedings whether by mediation or, as will be the case now, by final hearing.

I certify that paragraphs 1 - 32 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on Tuesday 17 September 2002 ex tempore and revised 27 September 2002

      Susan Piggott
      Associate

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