Defendant Opposes Plaintiff's Application to be Litigation Guardian
Cappelleri v Cappelleri (No 2) [2021] VSC 535 (30 August 2021)
One of two plaintiffs has lost capacity in long running family litigation. The other plaintiff seeks appointment as litigation guardian of elderly plaintiff. However, such an application was opposed by the defendants. The Court, in adjudicating this dispute, assessed the other plaintiff's capabilities and interest in the proceeding.
Facts:
On 31 July 2017 Vincenzo Cappelleri and his mother, Leonie Cappelleri, in her personal capacity and in her capacity as the executor of the estate of her late husband, Frank Cappelleri, deceased, issued a proceeding against the deceased’s brothers, Domenico Cappelleri and Mario Cappelleri and a family company, F & J Pty Ltd (‘F&L’). Domenico and Mario assert that after the deceased separated from Leonie, the deceased changed the shareholdings and directorship in F&L into the name of Domenico who holds the shares on trust for Mario and the estate of Anna Rosa Cappelleri. Before the trial, Leonie’s solicitors and medical practitioners had monitored her cognitive ability. Closer to the trial, her solicitor noticed a deterioration in her capacity.
On 2 June 2021 the Deputy Chief Health Officer issued a stay at home direction under the Covid-19 pandemic restrictions. The trial had to be adjourned because no one could visit Leonie at the nursing home where she resides and the nursing home did not have the resources to assist her for the trial. Later on, Leonie was assessed as having dementia, not capable of giving evidence at the trial. Domenico and Mario, who initially did not accept her prognosis, accepted her prognosis as at the date of the hearing of this application.
On 21 July 2021 Vincenzo filed a summons seeking orders to be appointed as Leonie’s litigation guardian. Domenico and Mario oppose the application on the ground that there is no evidence to show that Vincenzo is a fit and proper person to be appointed as Leonie’s litigation guardian. Domenico and Mario submit that it is plain from the ASIC searches that Vincenzo falsely represented that the documents he lodged were certified and lodged by Mick Cappelleri.
Issue:
I. Whether or not Vincenzo should be appointed as Leonie's litigation guardian.
II. Whether or not plaintiffs are entitled to the ownership of the properties and control of F&L and how the ownership of these assets affects the deceased’s estate.
Applicable law:
Cappelleri v Cappelleri [2020] VSC 306 (Derham AsJ)- his Honour described the proceeding as concerning the ownership of a number of properties and control of F&L and how the ownership of these assets effects the deceased’s estate.
Supreme Court (General Civil Procedure) Rules 2015 r 15.03(1) - provides that a person may be a litigation guardian of a person under a disability if they are not under a disability and have no interest in the proceeding adverse to that of the person under disability.
Nemeck v Nemeck [2019] FCAA 3205, [79] (Brown J) - where the Court appointed an adult child as litigation guardian for a parent in a contested family law proceeding as it is in the public interest that elderly litigants be represented by a family member because of the warmth and trust that should naturally arise between parent and child.
Vishniakov v Lay [2019] VSC 403, [33] - provides that the rule a litigation guardian should not have any interest in the proceeding adverse to that of the person under disability is limited to circumstances where the litigation guardian has an interest adverse to the person under a disability.
Analysis:
Leonie and Vincenzo admit to having filed documents with ASIC altering the registered address, directorship, office bearers and shareholding of F&L from Domenico and Mario to Leonie and Vincenzo without authority. Consequently, the documents lodged with ASIC were false and any endorsement or authorisation purporting to be the endorsement or authorisation of Mick on those documents was false. A person who has lodged false documents with a statutory authority lacks integrity and fidelity and is therefore not suitable to be appointed a litigation guardian.
However, Vincenzo is not under a disability. Vincenzo also has the advantage of instructing the same solicitor as Leonie and he is also familiar with the proceeding. It is also likely to be costly for an outsider to become familiar with the proceeding just before the trial. Vincenzo’s interest in the proceeding arises from being a registered proprietor of one of the properties and a joint registered proprietor with the estate of the deceased of another property.
Conclusion:
The Court ordered that pursuant to r 15.03(4)(a) of the Supreme Court (General Civil Procedure) Rules 2015, Vincenzo Cappelleri be appointed litigation guardian of Leonie Cappelleri in her personal capacity and the title to the proceeding be amended accordingly. Costs are reserved.
