| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2009 09734
| ERGISA AMICUCCI AND ELIA ACCAPUTO | Plaintiffs |
| v | |
| MARIO DE TULLIO (who is sued as executor of the will of Tommaso De Tullio deceased) | Defendant |
| - and between - | |
| S CI 2009 9120 | |
| GIUSEPPINA VENEZIALE | Plaintiff |
| v | |
| MARIO DE TULLIO (who is sued as executor of the will of Tommaso De Tullio deceased) | Defendant |
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JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 31 May 2011, 12 September 2011, 1 December 2011 | |
DATE OF PRINCIPAL JUDGMENT: | 24 October 2011 | |
DATE OF THIS JUDGMENT: | 22 December 2011 | |
CASE MAY BE CITED AS: | Amicucci and ors v Di Tullio (2) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 670 | |
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TESTATOR’S FAMILY MAINTENANCE - Applications by three daughters of testator - Only son sole beneficiary – Applicants successful- Determination of amounts paid by the estate but required to be borne by beneficiary/executor personally-Approach where successful plaintiffs disagree – Costs of plaintiffs and defendant - Offer of compromise -Calderbank offer - Administration and Probate Act 1958, s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs (in proceeding S CI 2009 9734) | Mr J. Tsalanidis | Wilmoth Field Warne |
| For the Plaintiff (in proceeding S CI 2009 9120) | Ms. C.H. Sparke | Maurice Blackburn |
| For the Defendant | No appearance |
HER HONOUR:
Introduction
By originating motions filed 16 September 2009 (Mrs Veneziale) and 23 October 2009 (Mrs Amicucci and Mrs Accaputo) each plaintiff sought further provision out of the estate of the late Tommaso Di Tullio, their father. The defendant in each case was their remaining sibling, their brother Mario Di Tullio, sued as the executor of their father’s estate. He was the sole beneficiary of the estate. The two proceedings were heard together on 31 May 2011, by then undefended.
I delivered reasons for judgment in favour of the plaintiffs on 24 October 2011 (“my earlier Reasons”). The bulk of the estate comprises the deceased’s former home which had by then been sold by the first mortgagee in possession. Settlement was anticipated in early November. The defendant had not participated in the trial, and so there was no current information as to amounts to be paid to the first mortgagee and an equitable second mortgagee on settlement, and no detailed information as to the purpose and application of these advances. Given certain submissions made by the plaintiffs it was necessary to consider before making orders whether or not the defendant should be required to bear some of these amounts personally. In my earlier Reasons I referred at paragraphs 45 and 46 to the absence of evidence on these matters, and at paragraphs 73-75, 93 and 105 to the issues arising from the plaintiffs’ submissions, indicating I would hear the parties further once this evidence was obtained.
Accordingly, I made orders on 24 October 2011 that the mortgagees provide a detailed breakdown of the amounts claimed to the respective plaintiffs and adjourned the proceedings to a date to be fixed for…
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- AGLC
- Amicucci v Di Tullio (2) [2011] VSC 670
- Case
- [2011] VSC 670
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the interpretation and application of the Testator’s Family Maintenance Act, specifically in determining the maintenance entitlements of the daughters. The court needed to address the financial responsibilities of the estate versus those of the personal representatives, particularly the son who was the sole beneficiary. Furthermore, the court had to resolve the dispute over the costs between the parties, including the implications of a Calderbank offer, and decide on the appropriate allocation of those costs.
The court found in favour of the daughters, granting their applications for maintenance. It determined the specific amounts to be paid by the estate but clarified that these amounts were to be borne personally by the son and executor. The court provided detailed reasoning for its decision, considering the statutory framework and the individual circumstances of the parties involved. Regarding the costs, the court assessed the Calderbank offer and made a ruling on the allocation of costs between the parties, taking into account the offer and the conduct of the litigation.
The final orders included the determination of the maintenance amounts payable by the estate, with a specific allocation to the son and executor. The court also ruled on the costs, rejecting the Calderbank offer and ordering the defendant to pay the plaintiffs' costs up to a certain point, with further costs to be determined.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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