Ioppolo and Hesford v Conti - [2013] WASC 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: IOPPOLO & HESFORD -v- CONTI [2013] WASC 389

CORAM: MASTER SANDERSON

HEARD: 8 OCTOBER 2013

DELIVERED : 24 OCTOBER 2013

FILE NO/S: CIV 1668 of 2013

BETWEEN: ROSARIO ANTONIO IOPPOLO and GRACE SUSAN HESFORD as Executors of the Estate of the late FRANCESCA CONTI
Plaintiffs
AND
AUGUSTO CONTI
First Defendant
AUGUSTO INVESTMENTS PTY LTD (ACN 146 964 338)
Second Defendant

Catchwords:

Superannuation - Application by executors of deceased member of Self Managed Superannuation Fund (SMSF) to be appointed a trustee of the fund - Whether surviving member obliged to appoint executor as trustee - Whether trustee entitled to distribute deceased member's interest in the fund contrary to direction in deceased's will

Legislation:

Nil

Result:

No obligation to appoint executor as trustee
Remaining trustee entitled to distribute at his discretion

Category: A

Representation:

Counsel:

Plaintiffs:     Mr P G McGowan
First Defendant             :     Mr N Davis
Second Defendant         :     Mr N Davis

Solicitors:

Plaintiffs:     Metaxas & Hager
First Defendant             :     Bowen Buchbinder Vilensky
Second Defendant         :     Bowen Buchbinder Vilensky

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

Nil

MASTER SANDERSON: Self‑managed superannuation funds (SMSF) are now a feature of the financial fabric of this country. They provide an important vehicle through which individuals can invest for their retirement. But as with any legal construct problems can arise in the administration of a fund. Mercifully such disputes seem rare. But this case is an example of how problems can arise within a family and lead to disputes relating to a superannuation fund.
This matter was commenced by originating summons but proceeded as if commenced by writ. Accordingly there were pleadings. There was no significant dispute as to the facts and they can be shortly stated. By a deed dated 29 July 2002 Francesca Conti and the defendant established a SMSF known as 'The Conti Superannuation Fund'. Francesca Conti and the defendant were the only trustees and members of The Conti Superannuation Fund. Francesca Conti died on 5 August 2010. She made a will dated 13 January 2005. Probate of the will was granted to the plaintiffs as executors of her estate on 28 October 2010.
It was a term of the deed that the fund would be a SMSF within the meaning of s 17A of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), unless the trustees resolved otherwise. The trustees have not resolved otherwise. I will deal with s 17A of the SIS Act in some detail below but it is appropriate first to deal further with the facts.
The amount in the fund standing to the credit of the deceased's account as at 30 June 2009 was $648,586. Under the superannuation deed rules, absent a binding written direction from a deceased member, the trustees may in their absolute discretion pay or apply the amount of the fund standing to the credit of a deceased member's account to a spouse or child of the member or any other person who in the…

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 Ioppolo and Hesford v Conti 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: [2013] WASC 389
Decision Date: 24 OCTOBER 2013

CaseChat Overview and Summary

The case of Ioppolo and Hesford v Conti involves the executors of a deceased member of a Self Managed Superannuation Fund (SMSF), who sought to be appointed as trustees of the fund. The surviving member of the SMSF, who was also the sole trustee, refused to appoint the executors as trustees. The executors applied to the court to be appointed as trustees and to compel the surviving member to distribute the deceased member's interest in the fund. The dispute came before the Supreme Court of New South Wales.

The central legal issues that the court had to determine were whether the surviving member was obliged to appoint the executors as trustees of the SMSF and whether the surviving member was entitled to distribute the deceased member's interest in the fund contrary to the direction in the deceased's will. The court had to consider the terms of the SMSF's trust deed, the relevant legislation, and the deceased's will.

In delivering the judgment, the court held that the surviving member was not obliged to appoint the executors as trustees of the SMSF. The court found that the trust deed did not require the surviving member to appoint the executors as trustees and that the relevant legislation did not impose such an obligation. The court also held that the surviving member was entitled to distribute the deceased member's interest in the fund contrary to the direction in the deceased's will. The court found that the deceased member's interest in the fund was a personal property interest that was not subject to the direction in the deceased's will. The court held that the surviving member was entitled to distribute the deceased member's interest in the fund in accordance with the terms of the SMSF's trust deed.

The court made orders that the executors' application to be appointed as trustees of the SMSF be dismissed and that the surviving member was entitled to distribute the deceased member's interest in the fund contrary to the direction in the deceased's will.

Orders