Amicucci v Di Tullio (2) - [2011] VSC 670

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amicucci v Di Tullio (2)

Details

AGLC: Amicucci v Di Tullio (2) [2011] VSC 670
Case: [2011] VSC 670
Decision Date: 22 December 2011

CaseChat Overview and Summary

The case of Amicucci v Di Tullio involved applications by three daughters of a deceased person seeking maintenance from the estate. The sole beneficiary of the estate was the deceased’s son. The court was tasked with determining the appropriate amounts to be paid from the estate for the maintenance of the daughters, and also had to consider the personal responsibility of the son and executor regarding these payments. Additionally, the court addressed the issue of costs between the plaintiffs and the defendant, including a Calderbank offer, under the Administration and Probate Act 1958, section 91.

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