Catanese v La Cava - [2024] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation: Catanese v La Cava [2024] NSWSC 1661
Hearing dates: 28 June 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Equity
Before: Parker J
Decision:
See [113-114]

Catchwords:
EQUITY — trusts and trustees — powers, duties, rights and liabilities — trustees appointed for sale of commercial properties pursuant to s 66G of Conveyancing Act 1919 (NSW) — maximum remuneration amount fixed at time of appointment, subject to application for increase — maximum fixed by reference to estimate provided by trustees before appointment — actual fees greatly exceeded estimate - application by trustees for increase to remuneration limit and legal costs of application — trustees were directors of a proprietary company providing accountancy services — remuneration claimed for services provided by employees — whether part of trustees’ remuneration or a disbursement — estimate inadequate — application for increase in fees only partially successful — application for legal costs of application refused

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417
Shazbot Pty Ltd v Warner Capital Pty Ltd [2018] NSWSC 1645
Warner Capital Pty Ltd v Shazbot Pty Ltd [2020] NSWCA 121

Texts Cited:
Nil

Category: Procedural rulings
Parties:
Principal proceedings
Marisa Ann La Cava Catanese (First Plaintiff)
Stephen Michael La Cava (Second Plaintiff)
Vicki Paul Boscov in her capacity as the representative of the estate of Gloria Lucy La Cava (Third Plaintiff)
Paul Gerard La Cava (First Defendant)
Robyn McCleary (Second Defendant)
Vittorio La Cava (by his tutor, NSW Trustee and Guardian) (Third Defendant)
Notice of Motion filed 29 April 2024
Sean Magnus Wengel (First Applicant)
Michael Craig Brereton (Second Applicant)
Marisa Ann La Cava Catanese (First Respondent)
Stephen Michael La Cava (Second Respondent)
Vicki Paul Boscov in her capacity as the representative of the estate of Gloria Lucy La Cava (Third Respondent)
Sandra Maria Casey (Fourth Respondent)
Paul Gerard La Cava (Fifth Respondent)
Robyn McCleary (Sixth Respondent)
Representation:
Counsel:
D Meyerowitz-Katz (Applicants)
S Ipp (First to Fourth Respondents)
M M M Pringle (Sixth Respondent)

Solicitors:
I Sinnadurai (Third Respondent)
B Hemsworth (Fifth Respondent)
Solicitors:
Notice of Motion
McCabe Lawyers (Applicants)
Swaab Lawyers (First, Second and Fourth Respondent)
Teece Hodgson & Ward Solicitors (Third Respondent)
Somerville Legal (Fifth Respondent)
HPL Lawyers (Sixth Respondent)

File Number(s): 2023/82587
Publication restriction: Nil

JUDGMENT

This is an application concerning trustees’ remuneration. It has been brought by way of notice of motion in ongoing proceedings in which the trustees were appointed.
The applicants are Sean Magnus Wengel and Michael Craig Brereton. They were appointed as trustees for sale of two commercial properties pursuant to s 66G of the Conveyancing Act 1919 (“CA”). At the time, the Court made orders fixing their maximum remuneration, subject to any further application, at $40,000. They are applying to have that increased to $132,000. These figures, and the other figures in this judgment, are exclusive of GST.
One of the properties in question was located…

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.

Keep reading for free

Create a free CaseChat account to read Catanese v La Cava and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 1661
Decision Date: 20 December 2024

CaseChat Overview and Summary

The dispute in Catanese v La Cava involved the trustees appointed to sell commercial properties under section 66G of the Conveyancing Act 1919 (NSW). The trustees sought an increase in their remuneration limit and legal costs associated with their application. The parties included the beneficiaries of the trust and the trustees who were also directors of a proprietary company providing accountancy services. The court was tasked with determining whether the trustees' application for an increase in their remuneration and associated legal costs was justified.

The primary legal issues before the court were whether the trustees' remuneration included fees for services provided by their employees or if these were to be treated as disbursements. Additionally, the court needed to assess the adequacy of the initial estimate provided by the trustees at the time of their appointment and whether the actual fees claimed exceeded this estimate to a degree that warranted an increase in the remuneration limit. The court also had to decide if the trustees were entitled to reimbursement for the legal costs incurred in making the application for increased remuneration.

In its decision, the court found that the trustees' estimate had indeed been inadequate, and the actual fees claimed exceeded this estimate significantly. However, the court ruled that not all of the fees claimed could be included in the trustees' remuneration. Some of the fees were attributable to services provided by employees of the proprietary company, which the court considered to be disbursements rather than part of the trustees' remuneration. Consequently, the court allowed the trustees' application for an increase in their remuneration limit but only to a certain extent. The application for reimbursement of the legal costs incurred in making the application was rejected outright.

The final orders of the court included a partial increase to the trustees' remuneration limit to reflect the higher fees claimed but did not include reimbursement for the legal costs associated with the application. The decision underscored the importance of accurately estimating remuneration at the time of trustees' appointment and the need for clear differentiation between trustees' personal remuneration and disbursements for services provided by their employees.

Orders