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  • Unreported Judgment

Villetri v O'Connor

 

[2009] QSC 234

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

20 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Daubney J

ORDER:

1.The applicant in BS 5851 of 2008 have leave to discontinue that proceeding, with each party to bear its own costs.

2.The applicant in BS 5852 of 2008 have leave to discontinue that proceeding, with each party to bear its own costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – DISCONTINUANCE – where applicant sought to discontinue each of the proceedings – whether leave should be granted to allow the applicant to discontinue each of the proceedings

PROCEDURE – COSTS – RECOVERY OF COSTS – where applicant sought costs of each proceeding – where respondent opposed an award of costs to the applicant – where the respondent contended that the applicant should pay the respondent’s costs – whether the applicant or respondent should be awarded costs

COUNSEL:

R D Peterson for the applicant

C Harding for the respondent

SOLICITORS:

Lennon Mazzeo for the applicant

Thynne and Macartney for the respondent

[1] On 15 June 2006, Mr Venero Villetri died, leaving a will dated 28 July 2005.  The applicant in each of the present proceedings is one of the deceased’s children.  The respondent is another child, who was appointed executor under the deceased’s will.  The will provided for a specific pecuniary legacy to be paid to the respondent’s son with the residue of the estate to be divided equally between the applicant, the respondent and another child of the deceased.  Clause 9 of the will provided the respondent with a first option to purchase either or both of certain properties owned by the deceased at Darra.  The purchase price for those properties was to be the amount of a valuation obtained from a registered valuer appointed by the respondent.  This clause of the will also directed that the valuation be obtained as soon as practicable after the death of the deceased.  The respondent obtained valuations of the properties.  Those valuations were dated 28 June 2006.  They valued one property at $210,000 and the other at $185,000.  On 29 August 2006, the respondent’s then solicitors wrote to the applicant’s then solicitors advising, inter alia, of the valuations of the properties and the fact that the respondent was exercising her option to purchase them.  The two properties were ultimately sold to the respondent for $395,000 under a contract dated 2 April 2008.

[2] There had, in the meantime, been some moderately heated correspondence between the parties’ solicitors.  In addition, the applicant had filed caveats preventing a grant of probate of the will.  Probate was not granted until the second caveat lapsed in January 2008.  The basis for the applicant lodging those caveats was concerns he held about the deceased’s capacity to make his last will.  It is said, however, that he discontinued his opposition to the grant of probate once relevant medical reports with respect to the deceased’s mental capacity had been produced to him. 

[3] From March 2008, the solicitors for the applicant wrote several letters to the solicitors for the respondent seeking a statement of accounts for the estate.  No response was received until a short-form statement was provided on 27 April 2008, together with a cheque in favour of the applicant for $109,351.43.  This 27 April 2008 document disclosed the respondent acquiring the two properties for $395,000. 

[4] On 22 May 2008, the solicitors for the applicant wrote to the respondent’s solicitors asking for a copy of the valuations.  The applicant subsequently obtained his own valuations of the properties.  The valuer retained by the applicant expressed the opinion that the value of the properties, both at the date of the deceased’s death and as at 2 April 2008 was higher than the value attributed in the informal estate accounts.

[5] The applicant, as a consequence, harboured concerns in relation to the administration of the deceased’s estate and on 20 June 2008 instituted the current proceedings:

 

(a)BS 5851 of 2008, being a claim for compensation for breach of trust, and

 

(b)BS 5852 of 2008, being an application pursuant to r 644 for the accounts of the estate to be examined and passed.

[6] Since each of these proceedings were instituted, the applicant has, in the course of the proceedings, been provided with further material which has led him to decide to abandon any further challenges in respect of the conduct and administration of the estate of the deceased.  Accordingly, the applicant seeks leave to discontinue each of the proceedings.  He also seeks his costs of each proceeding.

[7] The respondent opposes an award of costs to the applicant, and contends that it is the applicant who ought pay the respondent’s costs.  In advancing the respondent’s case in this regard, counsel for the respondent pointed to the difficulties which the applicant might have encountered in persuading a court to exercise its discretion to make an order for the examination and passing of the executor’s accounts, highlighting that the applicant was aware of the terms of the will which granted the option to purchase to the respondent, that since August 2006 (almost two years prior to the filing of the applications) the applicant was aware that the deceased had exercised her option and also of the valuations of the properties, and also that it is at least likely that the applicant’s solicitors had been provided with copies of those valuations within a few months after the death of the deceased.

[8] Those are certainly matters which would tend to swing the pendulum in favour of the respondent, so far as costs are concerned.  On the other hand, however, there was delay on the part of the respondent in providing accounting information to the applicant when it was requested on his behalf, and the material really provides little explanation for the initial reluctance of the respondent to provide anything other than an “informal” accounting, as was provided on 27 April 2008.  That it was possible for the respondent to provide a full account of the estate is apparent from the fact that such was done on 7 August 2008.

[9] In all the circumstances it seems to me that there are both merits and demerits on each side of the record in respect of the causes for and conduct of these unfortunate pieces of litigation.  I note also that the estate has been fully distributed, and there are no funds now remaining in the estate. 

[10] In all the circumstances it seems to me that the most appropriate order is for each of the parties to bear their own costs.

[11] There will be the following orders:

 

1.The applicant in BS 5851 of 2008 have leave to discontinue that proceeding, with each party to bear its own costs.

 

2.The applicant in BS 5852 of 2008 have leave to discontinue that proceeding, with each party to bear its own costs.

Close

Editorial Notes

  • Published Case Name:

    Villetri v O'Connor

  • Shortened Case Name:

    Villetri v O'Connor

  • MNC:

    [2009] QSC 234

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    20 Aug 2009

Litigation History

No Litigation History

Appeal Status

No Status