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…
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.
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Details
AGLC
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.