Burke v Pate [2021] QDC 283

DISTRICT COURT OF QUEENSLAND CITATION: Burke v Pate [2021] QDC 283 PARTIES: ANNA PAOLA BURKE (Applicant) v SIMON REGINALD PATE AS EXECUTOR OF THE WILL OF ITALO FOSCHI (DECEASED) (Respondent) FILE NO: 229 of 2020 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 3 December 2021 DELIVERED AT: Townsville HEARING DATE: 15 November 2021 JUDGE: Coker DCJ ORDER: 1. By 14 January 2022, the respondent file and serve upon the applicant an affidavit: a. identifying all of the assets and liabilities of the estate of the late Italo Foschi (deceased) together with the value in Australian dollars of each such asset and liability; and b. deposing to the respondent’s compliance or non-compliance with order 2 of the directions order filed 12 February 2021. 2. The respondent pay the applicant’s costs of this application as agreed and failing agreement to be taxed. 3. Neither the applicant’s costs nor the respondent’s costs of this application be paid or reimbursed to the respondent out of the estate of Italo Foschi (deceased). 4. This proceeding is listed for further review at 9:00am on 28 January 2022. CATCHWORDS: CIVIL – Application for adequate provision from deceased estate – where further application is brought in respect of the executor’s duties -- 1 of 9 -- 2 LEGISLATION: Succession Act 1981 (Qld), s 6, s 41(1), s 52(1)(b) and s 52(2) Uniform Civil Procedure Rules 1999 (Qld), r 5(3), Ch 9 Pt 4, Pt 10 COUNSEL: S. Kelly for the Applicant A. Collins for the Respondent SOLICITORS: Purcell Taylor Lawyers for the Applicant Gun Lawyers for the Respondent Introduction [1] On the 17th of December 2020, Anna Paola Burke whom I shall refer to as the applicant filed an originating application in this court seeking orders pursuant to s 41(1) of the Succession Act 1981 (Qld) with respect to there being adequate provision made for her from the estate of Italo Foschi (deceased). Costs of the application were sought. The respondent to the application is Simon Reginald Pate as executor of the will of Italo Foschi (deceased). [2] On the 12th of February 2021, directions were made by consent addressing issues which were hoped to progress the matter whether to resolution through mediation or for listing for trial. The terms of the orders were as follows: 1. On or before 19 February 2021, the applicant shall file and serve upon the respondent, any further affidavits by or on behalf of the applicant. 2. On or before 5 March 2021, the respondent shall cause copies of the originating application, all affidavits by or on behalf of the applicant and this order, to be sent by a form of mail or delivery requiring a signed receipt from the recipient to: a. Bruno Foschi of 13 Elizabeth Street, Mount Isa, together with a letter in compliance with paragraph 8(a) of Practice Direction No. 8 of 2021. 3. On or before 26 March 2021, any person served pursuant to paragraph 2 of this order who chooses to be separately represented shall file and serve a notice of address for service under Rule 29; if that person intends to apply for provision out of the estate, that is to be stated in the notice of address for service. 4. On or before 8 April 2021, any person who has filed a notice under paragraph 3 of this order shall cause his/her affidavit/s to be filed and served upon the applicant and the respondent, or their solicitors. -- 2 of 9 -- 2 5. On or before 23 April 2021, any affidavits by or on behalf of the respondent shall be filed and served upon the applicant and upon any other person who has filed a notice under paragraph 3 of this order, or their solicitors. 6. On or before 30 April 2021, any further affidavits by or on behalf of the applicant, the respondent or any other person who has filed a notice under paragraph 3 of this order shall be filed and served upon all other parties or their solicitors. 7. The parties shall undertake the following dispute resolution plan: a. On or before 14 May 2021, the parties and their legal representatives (including any party who has filed a notice under paragraph 3 of this order) shall meet together at a venue to be agreed or by telephone conference and by that means conduct discussions on a without prejudice basis to: i. define the issues in these proceedings; ii. exchange information and any disclosure necessary to enable the issues in these proceedings to be properly evaluated; and iii. attempt to negotiate a compromise of the proceedings. b. In the event the matter is not resolved pursuant to the dispute resolution plan, the parties shall undertake an ADR process, namely: i. participate in and act reasonably and genuinely in a mediation under Chapter 9 Part 4 of the Uniform Civil Procedure Rules 1999 (Qld) which shall take place on or before 15 July 2021 to be conducted by a mediator agreed upon by the parties upon terms also agreed by them or, failing agreement as to the mediator and/or the terms of the mediation, as ordered by the court; and ii. the mediator shall file a Form 35 at the conclusion of mediation. 8. Upon compliance with all preceding requirements and the filing of a request for trial date signed by or on behalf of the applicant, the respondent and any person who has filed a notice under paragraph 3 of this order, the matter shall be placed upon the call over list. 9. Any party shall be at liberty to apply on reasonable notice in writing to the other parties. 10. The costs of an incidental to the application and this order are reserved to the trial judge on further order. [3] As can be seen from order 7, discussions were contemplated to have been conducted on or before 14 May 2021 with certain steps to be taken prior to that date. However, that did not occur, noting as I do that the next documents to be filed were affidavits -- 3 of 9 -- 3 under the hand of Bruno Raffaele Foschi and Simon Reginald Pate both filed 31 May 2020, some 17 days after discussions were to occur. [4] Cleary the discussions which were contemplated in the consent directions did not occur because the next filings were on 24 June 2021 and consisted of an application on behalf of the applicant accompanied by an affidavit of Melody Deanna Cornish, the solicitor acting for the applicant. The orders sought by the applicant were as follows: 1. Pursuant to section 6, 52(1)(b) and/or 52(2) of the Succession Act 1981 (Qld), within 21 days the Respondent file and serve upon the Applicant an affidavit: a. identifying all of the assets and liabilities of the estate of the late Italo Foschi (deceased) together with the value in Australian Dollars of each such asset and liability; and b. deposing to the Respondent’s compliance or non-compliance with order 2 of the Directions Orders filed 12 February 2021. 2. This proceeding be listed for further review at 9am on 16 August 2021. 3. The Respondent pay the Applicant’s costs of this application. [5] As is apparent, the orders sought primarily relate to concerns held by the applicant as to the identification of the assets and the subsequent liquidation of the estate of Italo Foschi (deceased) and in particular, confirmation of the values of property, situated in Italy, but in Australian dollars. [6] As can be seen from the affidavit of Bruno Raffaele Foschi, filed 31 May 2021, there are two properties situated in Italy being via Bartoli 1, 48032 Casola Valsenio RA and a block of land in Casola Valsenio near La Chesadi, Mr Foschi acknowledged in that affidavit that the value of those properties was not known and Mr Pate also noted in his affidavit of 31 May 2021 that he was having difficulty in establishing the value of either property. [7] The applicant argues that the more recent application is necessary as a result of what is described as the, ‘dilatory conduct’ of the executor, which means that without the making of the orders sought, the originating application cannot be proceeded with and even the alternate dispute resolution process, which was previously agreed to, cannot proceed. -- 4 of 9 -- 4 [8] The application of the 24th of June 2021 was originally before the court on 19 July 2021 but on that occasion a jurisdictional argument was raised on the part of the executor, suggesting that the originating application had been brought erroneously, and that it should have been brought pursuant to part 10 of the Uniform Civil Procedure Rules. I ruled at that time in favour of the position of the applicant following argument and then adjourned the application itself to the 29th of July 2021. [9] However, the parties agreed amongst themselves to adjourn the further hearing and an order was made by consent on 27 July 2021 to adjourn the further hearing to a date to be fixed on two business days notice by any party to the other. No doubt there were further discussions held but the matter was not resolved and it came back before the court on 15 November 2021. [10] The applicant has filed an amended outline of argument as well as a chronology and a list of material. The executor relied upon the outline of argument previously filed as well as material to which I have already made mention. Leave was also granted to read and file an affidavit by the executor, sworn on the 12 th of November 2021. [11] The applicant’s arguments in respect of the need for an affidavit identifying all of the assets and liabilities of the estate together with a value in Australian Dollars is detailed in paragraphs 18 to 24 of the amended outline. It is as follows and succinctly encompasses the reasons the applicant says such order are sought in the application: [18] The objects of the Practice Direction include “encouraging the early consensual resolution of applications” and “making information available at the earliest practicable date so that a realistic assessment of prospects can be made by all parties”. Logically, resolution of a further provision application (either by the court of by ADR) can only occur when the net value of the estate is known. [19] The principal assets of the estate, as far as is known, are: a. a half interest in a home in Marion Street Mount Isa, which interest is worth between either $122,500 to $130,000 (based on the respondent’s valuation) or $165,000 to $175,000 (based on the applicant’s valuation); b. a half interest in a property in Italy with an old house on it of an unknown value; c. a block of land in Italy of unknown value; and d. $21,739.27 held in the trust account of Gun Lawyers. -- 5 of 9 -- 5 [20] The deceased’s interest in the Italian properties is probably not worth much but is unknown. [21] Ms Burke has been inquiring about the value of the Italian properties with the executor since August 2020. Ms Burke’s current solicitors, Purcell Taylor Lawyers, have made no fewer than six subsequent requests of the executor for a schedule of assets and liabilities of the estate. Despite this, the best the executor has done is to file an affidavit on 31 May 2021 that identifies the assets of the estate in a very general way and does not vie any value for either of the Italian properties and to provide an equally uniforming schedule of assets and liabilities. [22] Other than some rather meaningless online searches that it appears the executor performed himself, the executor has done nothing to determine the value of the Italian properties with the consequence that, over a year after the date of death, the net value of the estate is still unknown. [23] To make matters worse: a. the executor has readily conceded that “in respect to the properties in Italy, we are of the view an Italy [sic] law firm should be engaged to establish the value of the properties and the procedure to deal with the properties”; and b. the executor’s continued inaction was raised squarely with him on 19 May 2021, under threat of bringing this application , and he has done nothing, and continues to do nothing. [24] The executor is contravening his statutory duties. Further, he has failed to comply with the Directions Orders and is acting in contravention of his implied undertaking under rule 5(3) of the UCPR with the consequence that he is preventing this proceeding from progressing. The dispute resolution plan cannot be carried out until the executor confirms the net value of the estate’s assets and liabilities. [12] The executor’s response to this point is to say that the affidavit of Bruno Raffaele Foschi identifies with sufficient clarity the assets of the estate. It does not. There is no value, even approximate, if there was a basis to give such an approximation as to the values of the Italian properties. Mr Foschi and the executor both swear to that themselves. [13] Though it may now be argued by the executor, though more than a year has passed since the death of Mr Foschi, that there is some confusion as to what assets might or might not constitute the estate to be administered, there are still obligations which fall upon the executor in the proper performance of his duties to resolve that confusion. To make such a bald statement without any evidence, again in my view falls short of the obligations that arise as an executor. -- 6 of 9 -- 6 [14] The executor has fallen far short of what might properly be required of him in the execution of his obligations to administer the estate or to properly address, on the part of the estate, the claim brought by the applicant. This is even more apparent when one considers the terms of the consent direction of 12 February 2021, which were in fact agreed by the executor on the part of the estate. [15] The orders sought in the application of 24 June 2021, 1(a) should be made so as to properly progress this matter. [16] The order 1(b) of the orders made by consent on 12 February 2021 set out with particular specificity the requirements relating to the originating application being brought to the attention of Bruno Raffaele Foschi. Despite requests made on numerous occasions by the solicitors for the applicant, for confirmation of the executor’s obligations pursuant to the order being met, no such confirmation has been received. [17] The information deposed to in the affidavit of Mr Pate filed 31 May 2021 falls markedly short of what was required to be done pursuant to order 2 of the consent directions of 12 February 2021. Again, the order sought at order 1(b) of the current application should be made. [18] The application then seeks a date for review and hopefully a clear indication of the way forward with this matter. Such an order is appropriate and should be made. [19] Finally, the application seeks an order for the applicant’s costs to be paid by the respondent. The applicant again details the basis upon which it is sought that the applicant’s costs should be paid upon an indemnity basis and that the estate should not bear the costs of this application on behalf of the executor. That argument is as follows: [38] The estate is a modest one. It is most regrettable that this application has been necessary, but the proceedings could not progress without it, short of the executor’s assistance which has not been forthcoming. [39] Ms Burke’s financial position is poor. If the costs of this application are borne by the estate on an indemnity basis, then the pool available to satisfy Ms Burke’s further provision application will be further diminished as will the residual that would be otherwise available to Ms Burke and Mr Foschi as equal residual beneficiaries. -- 7 of 9 -- 7 [40] This application has been necessitated only as a result of the executor’s conduct in failing to do what is required of him: a. as personal representative under s 52(1)(a) of the Succession Act; b. under the Directions Orders, which he consented to being made; and c. by his implied undertaking under rule 5(3) of the UCPR. [41] As far back as 19 May 2021, the executor was expressly put on notice of the issues the subject of this application and was told that this application would be made and the costs sought against him personally unless he adequately addressed Ms Burke’s concerns. The executor did nothing, leaving Ms Burke with no alternative other than to bring this application. In the period between when this application was last before the court (19 July 2021) and now, there is no evidence that the respondent has done anything that would work towards allowing these proceedings to progress. [42] In these premises, the estate should not have to bear the costs of this application, neither Ms Burke’s nor the executors. [20] The respondent’s reply to this application is succinct and relied upon the success of the jurisdictional argument which was previously ruled upon on 19 July 2021 and not in favour of the respondent. No other submission is made and in light of the success of the application generally, it is appropriate that an order for costs in favour of the applicant should be made, though I am not satisfied that such an order should be made for costs on an indemnity basis. [21] The order of the Court will be: 5. By 14 January 2022, the respondent file and serve upon the applicant an affidavit: a. identifying all of the assets and liabilities of the estate of the late Italo Foschi (deceased) together with the value in Australian dollars of each such asset and liability; and b. deposing to the respondent’s compliance or non-compliance with order 2 of the directions order filed 12 February 2021. 6. The respondent pay the applicant’s costs of this application as agreed and failing agreement to be taxed. -- 8 of 9 -- 8 7. Neither the applicant’s costs nor the respondent’s costs of this application be paid or reimbursed to the respondent out of the estate of Italo Foschi (deceased). 8. This proceeding is listed for further review at 9:00am on 28 January 2022. -- 9 of 9 --