Cappelleri v Cappelleri (No 2)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2017 00286

LEONIE CAPPELLERI & ORS (according to the attached Schedule)	Plaintiffs
v
DOMENICO CAPPELLERI & ORS (according to the attached Schedule)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2021
DATE OF JUDGMENT:	30 August 2021
CASE MAY BE CITED AS:	Cappelleri v Cappelleri (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 535

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PRACTICE AND PROCEDURE – Where one of two plaintiffs has lost capacity in long running family litigation – Where elderly plaintiff lost capacity in months before trial – Where defendants agree that elderly plaintiff has lost capacity – Where other plaintiff seeks appointment as litigation guardian of elderly plaintiff – Application opposed by defendants – Proceeding ready for trial – Supreme Court (General Civil Procedure) Rules 2015 ord 15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Caillard Madgwicks Lawyers
For the First, Second and Third Defendants	Mr G Nash QC	Access Law Lawyers

SCHEDULE OF PARTIES

BETWEEN:

LEONIE CAPPELLERI	First plaintiff
LEONIE CAPPELLERI (as executrix of the estate of FRANK CAPPELLERI, deceased)	Second plaintiff
VINCENZO NICOLA CAPPELLERI	Third plaintiff
- and -
DOMENICO CAPPELLERI	First defendant
MARIO CAPPELLERI	Second defendant
F & L PTY LTD (ACN 006 187 873)	Third defendant
REGISTRAR OF TITLES	Fifth defendant
- and -
DOMENICO CAPPELLERI	First plaintiff by counterclaim
MARIO CAPPELLERI	Second plaintiff by counterclaim
- and -
LEONIE CAPPELLERI	First defendant by counterclaim
LEONIE CAPPELLERI (as executrix of the estate of FRANK CAPPELLERI, deceased)	Second defendant by counterclaim
VINCENZO NICOLA CAPPELLERI	Third defendant by counterclaim
REGISTRAR OF TITLES	Fifth defendant by counterclaim
F & L PTY LTD (ACN 006 187 873)	Sixth defendant by counterclaim

HER HONOUR:

1. On 31 July 2017 Vincenzo Cappelleri (‘Vincenzo’) and his mother, Leonie Cappelleri (‘Leonie’), in her personal capacity and in her capacity as the executor of the estate of her late husband, Frank Cappelleri deceased (‘the deceased’s estate’), issued a proceeding against the deceased’s brothers, Domenico Cappelleri (‘Domenico’) and Mario Cappelleri (‘Mario’) and a family company, F & J Pty Ltd (‘F&L’).

1. A summary of the disputes as at 2020 is set out by Derham AsJ in Capelleri v Capelleri.[1] 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.  Domenico and Mario assert that F&L was always controlled by the deceased and, after the deceased separated from Leonie, the deceased changed the shareholdings and directorship in F&L into the name of Domenico.  They pleaded that Domenico holds the shares on trust for Mario and the estate of Anna Rosa Cappelleri.

   [1]Cappelleri v Cappelleri [2020] VSC 306 (Derham AsJ).

1. Since then, Domenico and Mario filed a counterclaim on 19 June 2020 against Leonie, in her personal capacity and in her capacity as the executor of the deceased’s estate, Vincenzo, the Australian Securities and Investment Commission…