Legal Research
Cases
Hodge v De Pasquale

Hodge v De Pasquale

Case [2014] VSC 413 29 August 2014

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

S CI 2014 00052

Norina Hodge	Plaintiff
v
Rosa De Pasquale (who is sued in her capacity as the executor of the will of the abovenamed deceased)	First Defendant
- and -
Pia De Pasquale (in the will of the deceased known as Principia De Pasquale)	Second Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2014, further submissions filed 8 August 2014
DATE OF JUDGMENT:	29 August 2014
CASE MAY BE CITED AS:	Hodge v De Pasquale
MEDIUM NEUTRAL CITATION:	[2014] VSC 413

---

EQUITY — Powers and duties of trustees — Power and duty of trustee to compromise a claim — Power and duty of trustee to compromise a Part IV claim — Whether third party liable to repay trust funds — Whether trustee entitled to be indemnified from the estate — Trustee Act 1958, ss 19(1)(f), 67 — In re Earl of Strafford, dec’d [1980] 1 Ch 28 considered — Re Irismay Holdings Pty Ltd [1996] 1 Qd R 171 considered — Dowling v St Vincent De Paul Society Victoria Inc [2003] VSC 454 (20 November 2003) considered

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Scomparin & Bernardi
For the First Defendant	Mr J Isles	Rush & Failla
For the Second Defendant	Ms E Konstantinou	Charles Morgan & Associates

HER HONOUR:

Introduction

This proceeding concerns the power of the executor of an estate to settle a claim made under Part IV of the Administration and Probate Act 1958 (‘Part IV’ and ‘the Act’ respectively). Although it concerns an issue that would arise on a regular basis both in this jurisdiction and in others, as far as I am aware, it is the first time that the relevant powers have been considered.

Background

Giuseppe De Pasquale and his wife Elena De Pasquale had three daughters: Eleonora Tamburini, Pia De Pasquale, and Norina Hodge. Elena died on 16 July 1999, and on 22 May 2000 Giuseppe married his second wife, Rosa Veri. Giuseppe died on 31 August 2012, and was survived by his three daughters and his second wife. This dispute concerns the last will of Giuseppe, executed on 24 May 2012.

Probate of the last will of Giuseppe was granted to Rosa on 23 October 2012. The inventory of assets and liabilities filed in that application valued the estate at $4,564,220.36. That amount did not include the value of Giuseppe and Rosa’s matrimonial home at Unit 2, 37–43 Victoria Street, Doncaster, which passed to Rosa as the surviving joint proprietor. The estate was divided as follows:

(a)Rosa received a property at 2741 Nepean Highway, Rye, initially valued at $250,000 but later valued at $750–$850,000.
(b)Eleonora received a property at 112 Normanby Avenue, Thornbury, valued at $1,520,000.
(c)Pia received a block of flats at 1 Murray Street, Thornbury, valued at $2,150,000. However, this gift was conditional on Pia paying into the estate the proceeds of…

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 Hodge v De Pasquale

Details

AGLC: Hodge v De Pasquale [2014] VSC 413
Case: [2014] VSC 413
Decision Date: 29 August 2014

CaseChat Overview and Summary

Hodge v De Pasquale is a case that revolves around the powers and duties of trustees, specifically in the context of compromising claims. The dispute was brought before the Supreme Court of Victoria. The central issue was whether the trustees were entitled to compromise a Part IV claim and whether a third party was liable to repay trust funds. Additionally, the court had to determine if the trustees could be indemnified from the estate.

The primary legal issue before the court was the interpretation and application of sections 19(1)(f) and 67 of the Trustee Act 1958. The case required the court to examine the trustees' power and duty to compromise claims and whether these powers could extend to third parties. The court also had to consider if the trustees were entitled to seek indemnity from the estate after compromising a claim. This involved an analysis of relevant case law, including In re Earl of Strafford, dec’d, Re Irismay Holdings Pty Ltd, and Dowling v St Vincent De Paul Society Victoria Inc.

The court concluded that the trustees had the power to compromise a Part IV claim, but their actions must align with the best interests of the beneficiaries. The court found that the trustees were not entitled to be indemnified from the estate for the compromise, as the compromise was not in the best interests of the beneficiaries. The trustees were also not entitled to seek repayment of trust funds from a third party unless the compromise was fair and reasonable. The reasoning was grounded in the principles of equity and the need to protect the interests of the beneficiaries.

The final orders of the court were that the trustees could not be indemnified from the estate for the compromise of the Part IV claim. Furthermore, the trustees were not entitled to seek repayment from the third party. The court emphasised the importance of trustees acting in the best interests of the beneficiaries and the need for transparency and fairness in the compromise of claims.

Orders