Iacono v Iacono (No 2) - [2021] VSC 729

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2019 02401

IN THE MATTER of the Estate of SALVATORE IACONO, deceased

- and –

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)

ROSE GIOVANNA IACONO	Plaintiff
v
GIOVANNI IACONO (who is sued as Executor of the Estate of SALVATORE IACONO, deceased)	First Defendant
EMANUELE IACONO	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2021, and written submissions filed by the parties on 5 September 2021, 6 September 2021, 7 September 2021, 17 September 2021, 19 September 2021, and 1 October 2021
DATE OF JUDGMENT:	9 November 2021
CASE MAY BE CITED AS:	Iacono v Iacono & Anor (No 2) (Costs)
MEDIUM NEUTRAL CITATION:	[2021] VSC 729

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COSTS – Claim under Part IV of the Administration and Probate Act 1958 (Vic) – Whether plaintiff entitled to interest on legacy pursuant to s 39B of the Administration and Probate Act 1958 (Vic) – Where each party has a prima facie entitlement to costs – Apportionment of costs between beneficiaries not in need in proportion to their entitlements from the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M C McKenzie	Constable Connor & Co Pty Ltd
For the First Defendant	Mr J Rizzi	Prompt Legal Services Pty Ltd
For the Second Defendant	Mr A P Dickenson	Bediaga Xavier & Ramon

HER HONOUR:

On 30 July 2021, I delivered my reasons in respect of the plaintiff’s claims pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’) for further provision from her late father’s estate (‘estate’).[1] The plaintiff, Rose Iacono, was successful in establishing her claim for further provision, but not in the quantum and form sought by her. I ordered that further provision with a value of $690,000 be made to Rose, comprising the transfer of two units in Tullamarine (‘units 4 and 5’), together with the net rental income which had accrued in respect of units 4 and 5 since the death of the deceased, in addition to the $50,000 gifted to Rose in the deceased’s will (‘will’). The cash payments due to Rose (of around $100,000) are to be secured by a charge on the Tullamarine units given to her brother Emanuele (being units 2 and 3) in the will. Units 4 and 5 had been gifted to her other brother, John, in the will.
[1][2021] VSC 444 (‘July reasons’). References to defined terms and party names in these reasons are the same as in the July reasons.

The issues in the proceeding, and my findings in relation to those issues are set out in full in the July reasons. To recapitulate, claims were made against the estate by Rose, and her elder half‑sister, Maria, who resides in Italy. No provision was made for Maria in the will. Prior to the issue of this proceeding, the primary beneficiaries of the estate were…

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 Iacono v Iacono (No 2)

Details

AGLC: Iacono v Iacono (No 2) [2021] VSC 729
Case: [2021] VSC 729
Decision Date: 9 November 2021

CaseChat Overview and Summary

In this case, the parties involved were Iacono, the plaintiff, and Iacono, the defendant. The dispute pertained to the interpretation and application of section 39B of the Administration and Probate Act 1958 (Vic), specifically whether the plaintiff was entitled to interest on a legacy. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the legal issues surrounding the plaintiff's entitlement to interest on a legacy and the apportionment of costs between the parties.

The court considered whether the plaintiff was entitled to interest on a legacy under section 39B of the Administration and Probate Act 1958 (Vic). This required an examination of the statutory provisions and their application to the facts of the case. Additionally, the court had to decide how to apportion the costs between the parties, given that each had a prima facie entitlement to costs but were not in need of financial assistance from the estate.

The court concluded that the plaintiff was indeed entitled to interest on the legacy pursuant to section 39B of the Administration and Probate Act 1958 (Vic). In terms of costs, the court held that while each party had a prima facie entitlement to costs, the apportionment should be made in proportion to their entitlements from the estate. This approach was deemed appropriate given the nature of the dispute and the financial circumstances of the parties.

The final orders of the court reflected the findings and reasoning outlined above. The court awarded the plaintiff interest on the legacy as per the statutory provision and directed that the costs be apportioned between the parties in proportion to their entitlements from the estate. This decision ensured that the parties' financial interests were fairly considered and that the costs were allocated in a manner consistent with the circumstances of the case.

Orders