Equity Trustees v Pistorino - [2017] VSC 17

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2016 000030

EQUITY TRUSTEES LIMITED (ACN 004 031 298) AS EXECUTOR AND TRUSTEE OF THE ESTATE OF AGOSTINO PISTORINO (DECEASED)	Plaintiff
v
ANTONIO PISTORINO	Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 FEBRUARY 2017
DATE OF JUDGMENT:	1 FEBRUARY 2017
CASE MAY BE CITED AS:	EQUITY TRUSTEES v PISTORINO
MEDIUM NEUTRAL CITATION:	[2017] VSC 17

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COSTS – Trustees – Where trustees sought orders approving adoption and signing of draft accounts of a deceased estate – Matter resolved by consent – Trustees’ entitlement to costs on indemnity basis - Necessary and proper parties’ entitlement to costs – Costs properly incurred.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K P Hanscombe QC with Mr A P Dickenson	Aitken Partners
For the Defendant	Mr D C Oldfield	Piper Alderman
Joanne Connell	In person

HIS HONOUR:

A. Introduction

On 16 February 2016, the plaintiff, Equity Trustees Limited (“Equity Trustees”), applied for orders approving the adoption and signing by Equity Trustees of the draft accounts of the estate of Agostino Pistorino (“the Estate”) for each of the financial years ended 30 June 2008 to 30 June 2013. Equity Trustees was appointed the executor and trustee of the Estate pursuant to orders made by the court on 27 August 2010. The then draft accounts of the Estate were exhibited to an affidavit filed and served at the commencement of the proceeding.

At the time the proceeding commenced, Giovanna Connell (“Connell”) was named as the first defendant and Antonio Pistorino (“Pistorino”) was named as the second defendant.

The will of Agostino Pistorino (“the Deceased”) provided for the income of the Estate to be paid to his wife, Aurelia Pistorino (“Aurelia”), during her lifetime, then, upon her death, for the balance of the Estate to be divided into 2 equal shares to be held on 2 individual testamentary trusts, known as the Giovanna Connell Trust and the Antonio Pistorino Trust. Connell and Pistorino are the primary objects of these 2 testamentary trusts. They are sister and brother and are the children of Aurelia and the Deceased.

Pursuant to the will, Connell and Pistorino were to be appointed as executors and trustees of the Estate, together with the Deceased’s then accountant (“the Deceased’s Accountant”). The appointment duly occurred after the death of the Deceased on 5 January 1999.

On 4 May 2016, Equity Trustees filed an amended originating process by which it also sought an order approving the adoption and signing of the draft accounts of the Estate for the year ended 30 June 2014.

On 4 May 2016, in response to certain “queries” made by Agostino in writing after the proceeding commenced, Equity Trustees served amended draft accounts. These were exhibited to an affidavit of the same date, which referred to the fact that Equity Trustees had obtained advice from its accountants and tax advice from a senior barrister as a result of the queries raised.

By a…

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 Equity Trustees v Pistorino

Details

AGLC: Equity Trustees v Pistorino [2017] VSC 17
Case: [2017] VSC 17
Decision Date: 1 FEBRUARY 2017

CaseChat Overview and Summary

The case of Equity Trustees v Pistorino involved trustees who sought orders approving the adoption and signing of draft accounts of a deceased estate. The matter was heard in the court, which had to consider the legal entitlement of the trustees to costs on an indemnity basis. Additionally, the court needed to determine whether necessary and proper parties were entitled to their costs, as well as the propriety of the costs incurred.

The primary legal issue was whether the trustees were entitled to costs on the indemnity basis, given that the matter was resolved by consent. The court also had to consider whether the necessary and proper parties, who participated in the proceedings, were entitled to their costs. The court needed to assess if the costs incurred by the trustees and the necessary and proper parties were reasonable and necessary in the circumstances.

The court found that the trustees were entitled to costs on the indemnity basis, as the matter was resolved by consent, and the trustees had fulfilled their duties in managing the estate. The court also determined that the necessary and proper parties were entitled to their costs, provided that they were reasonable and necessary. The court held that the costs incurred by both the trustees and the necessary and proper parties were properly incurred and should be paid from the estate.

As a result, the court ordered that the trustees were entitled to their costs on an indemnity basis, and the necessary and proper parties were also entitled to their costs, subject to the court's assessment of their reasonableness and necessity. The court further ordered that the costs should be paid from the estate of the deceased.

Orders