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Cardaci v Cardaci

Cardaci v Cardaci

Case [2022] WASC 166 13 May 2022

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CARDACI -v- CARDACI [2022] WASC 166
CORAM:   ALLANSON J
HEARD:   26 APRIL 2022
DELIVERED          :   13 MAY 2022
FILE NO/S:   CIV 1249 of 2022
BETWEEN:   MAE CARDACI
Plaintiff
AND
FILIPPO PRIMO CARDACI
Defendant

Catchwords:

Trusts and trustees - Application by trustee for advice regarding payment of legal costs from trust assets - Application by trustee for advice on entering into litigation funding agreements - Turns on own facts

Legislation:

Trustees Act 1962 (WA)

Result:

Directions given

Category: B

Representation:

Counsel:

Plaintiff	:	Mr GD Cobby SC & Mr NL Pham
Defendant	:	Mr T Bannon SC & Mr T Rogan

Solicitors:

Plaintiff	:	Herbert Smith Freehills
Defendant	:	Bennett + Co

Case(s) referred to in decision(s):

Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247
Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [No 5] [2021] WASC 331
Cardaci v Filippo Primo Cardaci as executor of the estate of Marco Antonio Cardaci [No 5] [2021] WASC 331(S)
Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20; (2019) 268 CLR 524
CGU Insurance Ltd v One.Tel Ltd (in liq) [2010] HCA 26; (2010) 242 CLR 174
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322
Ludwig v Jeffrey (No 4) [2021] NSWCA 256
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Marley v Mutual Security Merchant Bank [1991] 3 All ER 198 (PC)
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572
National Trustees Executors and Agency Company of Australasia Ltd v Barnes [1941] HCA 3; (1941) 64 CLR 268
Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360
Plan B Trustees Ltd v Parker [No 2] [2013] WASC 216
Re Australian Pipeline [2006] NSWSC 1316
Rouse v IOOF Australia (No 3) [1999] SASC 208
Sons of Gwalia Ltd v Margaretic [2006] FCAFC 92; (2006) 232 ALR 119
The application of Eurolinx Pty Ltd in its capacity as trustee for the Colbert Security Trust [2017] NSWSC 1306
Washburn Pty Ltd v Cardaci [2022] WASCA 43
Young v Murphy [1996] VR 279

ALLANSON J:

Introduction

The plaintiff, Mae Cardaci, is the widow of Marco Antonio Cardaci.
Ms Cardaci is a member of the class of general beneficiaries of two discretionary trusts: the Washburn Trust, established by deed dated 6 September 1995; and the Marco Antonio Cardaci Testamentary Trust (Marc's Testamentary Trust), established by Grace Cardaci, by her will.
In 2016 and 2017, Ms Cardaci brought two actions:
(1)an action in which she sought an order pursuant to the Family Provision Act 1972 (WA);[1] and
(2)an action (the trust action) in which she sought orders removing the trustees of each of the Washburn Trust and Marc's Testamentary…

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 Cardaci v Cardaci

Details

AGLC: Cardaci v Cardaci [2022] WASC 166
Case: [2022] WASC 166
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Mae Cardaci sought directions under section 92 of the Trustees Act 1962 (WA) for her to use trust assets to pay her legal costs and enter into litigation funding and retainer agreements. The defendants opposed the application. Allanson J held that, while Ms Cardaci was justified in using trust assets to investigate claims against former trustees, she was not entitled to the other directions sought. Allanson J held that, while Ms Cardaci was justified in using trust assets to investigate claims against former trustees, she was not entitled to the other directions sought. The court was not satisfied that Ms Cardaci had taken proper legal or other advice and given full consideration to the implications of the agreements for the trusts, and for her obligations as trustee. Allanson J held that Ms Cardaci was entitled to have the costs of the application paid out of the trust assets.

Orders