Maria Coppola v New South Wales Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda

HIS HONOUR: These proceedings are concerned with the estate of the late Giuseppina Buda (Giuseppina). The plaintiff, Maria Coppola (Maria), who is the daughter of Giuseppina, seeks a declaration that Giuseppina held her half share in a property situated in Stanmore (the Stanmore Property) on trust for her. The other half share in the Stanmore Property is held by Carmelo Buda (Carmelo), Maria's brother and the son of Giuseppina. Following the death of Giuseppina, NSW Trustee & Guardian (the Administrator) was appointed as administrator of her estate.

Carmelo is the sole beneficiary of the unadministered estate under the will of Giuseppina, which includes Giuseppina’s half share in the Stanmore Property. The effect of the principal claim made by Maria is that the Stanmore Property would be held as to a half share by each of her and Carmelo. As a fall back, Maria seeks a family provision order under the Family Provision Act 1982 (NSW), which was in force at the time of the death of Giuseppina.

A difficulty has arisen because Carmelo does not have the capacity to defend the proceedings. Vanessa Coppola, Maria’s daughter (Vanessa), has been appointed as financial manager of Carmelo’s estate. However, Vanessa is in a position of conflict in that she has sworn an affidavit in support of her mother's claim against Carmelo. For some months there has been negotiation between the representatives of Maria and the Administrator with a view to the appointment of a tutor ad litem for the purposes of these proceedings in relation to the estate of Carmelo.

It is unnecessary now to go into the to-ing and fro-ing that has occurred in relation to those discussions but at present there is no tutor ad litem and the estate of Carmelo is not effectively represented in the proceedings. That resulted some months ago in the vacation of a hearing date.

In order to bring matters to a head, the Administrator by a notice of motion filed on 18 June 2018 sought the removal of Vanessa and the appointment of NSW Trustee & Guardian in her stead. When the motion was originally called on for hearing some two weeks ago, there was no appearance for Vanessa. After a short adjournment she appeared in person and indicated that she was taking steps to have a tutor appointed. When the matter was called on again this morning, following an adjournment, there was no evidence of the appointment of a tutor.

After further discussions, it appears that a compromise has been reached between Vanessa and the Administrator whereby Vanessa will be removed as financial manager of Carmelo’s estate and NSW Trustee & Guardian will be appointed in her stead. Counsel for Vanessa has indicated to the Court that she will consent to orders to that effect. However, she does so on the clear understanding, which her counsel has indicated in open Court, that when these proceedings are finally resolved, she will seek to be reinstated as financial manager of Carmelo's estate. Counsel for the Administrator has indicated that there may be no opposition to that course. However, that is a matter for consideration by the Court at the time when any application is made.

In the circumstances, I propose to make orders as sought by the Administrator. It should be understood that, in making those orders, it is not intended to release Vanessa from any breach of fiduciary obligation attaching to the office of manager of Carmelo’s estate up to the present time. In saying that, I should observe no allegation of any such breach has been made at this stage.

Since Carmelo is the only person interested in the unadministered estate of Giuseppina, the Administrator seeks no order as to the costs of the motion against Carmelo and the parties have agreed that there be no order as to the costs of the motion, to the intent that each party will bear his her or its own costs. Maria was represented on the hearing of the motion although she is not strictly a party to it. On the other hand, she has an interest in getting these proceedings on for hearing without any further delay.

Accordingly, I make orders in terms of prayers 1 to 7 of the notice of motion filed on 18 June 2018 and a direction for setting a hearing date as follows: