Cardaci v Cardaci

Case [2023] WASCA 158


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CARDACI -v- CARDACI [2023] WASCA 158

CORAM:   BUSS P

MURPHY JA

MITCHELL JA

HEARD:   1 - 3 FEBRUARY 2023

DELIVERED          :   9 NOVEMBER 2023

FILE NO/S:   CACV 100 of 2021

BETWEEN:   FILIPPO PRIMO CARDACI as the former executor of the estate of MARCO ANTONIO CARDACI

First Appellant

ONGOLD CORPORATION PTY LTD

Second Appellant

RECTANGULAR PTY LTD

Third Appellant

AND

MAE CARDACI

First Respondent

GIOVANNI MAURIZIO CARRELLO as trustee in the bankruptcy of the estate of MARCO ANTONIO CARDACI (Deceased)

Second Respondent

POWERCITY PTY LTD

Third Respondent

DUPORTE CORPORATION PTY LTD

Fourth Respondent

FILE NO/S:   CACV 101 of 2021

BETWEEN:   WASHBURN PTY LTD

First Appellant

RECTANGULAR PTY LTD

Second Appellant

ONGOLD CORPORATION PTY LTD

Third Appellant

FILIPPO PRIMO CARDACI

Fourth Appellant

ANGELA FRANCESCA CARLA FLORIDO

Fifth Appellant

AND

MAE CARDACI

First Respondent

DUPORTE CORPORATION PTY LTD

Second Respondent

POWERCITY PTY LTD

Third Respondent

FILE NO/S:   CACV 7 of 2022

BETWEEN:   WASHBURN PTY LTD

First Appellant

RECTANGULAR PTY LTD

Second Appellant

ONGOLD CORPORATION PTY LTD

Third Appellant

FILIPPO PRIMO CARDACI

Fourth Appellant

ANGELA FRANCESCA CARLA FLORIDO

Fifth Appellant

AND

MAE CARDACI

First Respondent

DUPORTE CORPORATION PTY LTD

Second Respondent

POWERCITY PTY LTD

Third Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   LE MIERE J

Citation: CARDACI -v- FILIPPO PRIMO CARDACI as executor of the estate of MARCO ANTONIO CARDACI [No 5] [2021] WASC 331

File Number            :   CIV 1750 of 2017, CIV 3186 of 2016

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   LE MIERE J

Citation: CARDACI -v- FILIPPO PRIMO CARDACI as executor of the estate of MARCO ANTONIO CARDACI [No 5] [2021] WASC 331 (S)

File Number            :   CIV 1750 of 2017, CIV 3186 of 2016


Catchwords:

Trusts - Trustees - Removal of trustees - Discretionary trusts - Special power of appointment - Whether trial judge had power to remove trustees - Scope of court's power to remove a trustee - Whether jurisdiction only arises on finding of bad faith, improper purpose, misconduct or a failure or refusal to give real and genuine consideration to the exercise of powers in favour of an eligible object - Relevance of past breach of trust in exercise of special power of appointment - Whether corporate trustee gave real and genuine consideration - Whether controller of corporate trustee had a closed mind with respect to trustee's discretion to distribute - Where distributions to respondent beneficiary ceased - Where controller of corporate trustee stated that he would never distribute to the respondent beneficiary

Trusts - Trustees - Conduct of trustee - Whether findings as to conduct of controller of corporate trustee sufficient to justify removal of trustee - Whether controller of corporate trustee understood nature of powers and obligations of trustee - Where controller of corporate trustee did not distinguish between personal capacity and capacity as controller of trustee in making a settlement offer - Whether controller caused corporate trustee to act contrary to…

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Cardaci v Cardaci [2023] WASCA 158
Case
[2023] WASCA 158
Decision Date

CaseChat Overview and Summary

Filippo Primo Cardaci and other appellants appeal against orders made by Le Miere J in the primary proceedings. The orders removed the appellants as trustees of certain trusts and appointed Mae as the trustee of those trusts. The orders also removed Filippo as executor of the estate of his brother, Marc, and substituted Mae as executor. The appellants challenge the removal of the trustees and the substitution of Mae as executor. They also challenge orders requiring them to restore trust funds used to pay their own legal costs in the primary proceedings. Mae cross-appeals against the dismissal of her claim for damages arising from Marc's estate being administered in bankruptcy. The appeals are dismissed and the cross-appeal allowed. The matter is remitted to the General Division for an assessment of damages payable by Filippo as executor of Marc's estate for his breach of duty as executor. The breaches were: 1) asserting and admitting that the estate was liable to Ongold Corporation Pty Ltd in the amount of $1,280,714; and 2) causing the estate to be administered in bankruptcy.

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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