IOPPOLO -v- CONTI [2015] WASCA 45

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 45
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:136/2013	Heard:	17 OCTOBER 2014
Coram:	MARTIN CJ BUSS JA BEECH J	Delivered:	10/03/15
No of pages:	32	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ROSARIO ANTONIO IOPPOLO and GRACE SUSAN HESFORD as executors of the estate of the late FRANCESCA CONTI AUGUSTO CONTI AUGUSTO INVESTMENTS PTY LTD
Catchwords:	Superannuation Self managed superannuation funds Whether Superannuation Industry (Supervision) Act 1993 (Cth) mandates appointment of executor of deceased member's estate as trustee upon death of member Trusts Superannuation Review of exercise of trustee's discretion Assertion of lack of bona fides No evidence
Legislation:	Superannuation Industry (Supervision) Act 1993 (Cth), s 17A, s 19, s 40, s 52, s 42A(5) Trustees Act 1962 (WA), s 77
Case References:	Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 Ioppolo & Hesford v Conti [2013] WASC 389 Karger v Paul [1984] VR 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IOPPOLO -v- CONTI [2015] WASCA 45 CORAM : MARTIN CJ

BUSS JA

BEECH J

HEARD : 17 OCTOBER 2014 DELIVERED : 10 MARCH 2015 FILE NO/S : CACV 136 of 2013 BETWEEN : ROSARIO ANTONIO IOPPOLO and GRACE SUSAN HESFORD as executors of the estate of the late FRANCESCA CONTI

Appellants

AND

AUGUSTO CONTI

First Respondent

AUGUSTO INVESTMENTS PTY LTD

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

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

File No : CIV 1668 of 2013

Catchwords:

Superannuation - Self managed superannuation funds - Whether Superannuation Industry (Supervision) Act 1993 (Cth) mandates appointment of executor of deceased member's estate as trustee upon death of member

Trusts - Superannuation - Review of exercise of trustee's discretion - Assertion of lack of bona fides - No evidence

Legislation:

Superannuation Industry (Supervision) Act 1993 (Cth), s 17A, s 19, s 40, s 52, s 42A(5)

Trustees Act 1962 (WA), s 77

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants : Mr C G Colvin SC & Mr A Metaxas

First Respondent : Mr N A Davis

Second Respondent : Mr N A Davis

Solicitors:

Appellants : Metaxas & Hager

First Respondent : Bowen Buchbinder Vilensky

Second Respondent : Bowen Buchbinder Vilensky

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

Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254
Ioppolo & Hesford v Conti [2013] WASC 389
Karger v Paul [1984] VR 161

MARTIN CJ

Summary

1 In 2002 the late Francesca Conti and her husband, Augusto Conti (the first respondent) became the trustees and beneficiaries of a trust known as the Conti Superannuation Fund (the Fund). The terms of the deed by which the Fund was established (the Trust Deed) required the Fund to be conducted at all times in…

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 Ioppolo v Conti

Details

AGLC: Ioppolo v Conti [2015] WASCA 45
Case: [2015] WASCA 45
Decision Date: 10 MARCH 2015

CaseChat Overview and Summary

The case of Ioppolo v Conti was heard in the Federal Court of Australia. The central dispute revolved around the administration of a self-managed superannuation fund following the death of a member. Specifically, the court was asked to determine whether the Superannuation Industry (Supervision) Act 1993 (Cth) required the executor of the deceased member's estate to be appointed as the trustee of the fund. The primary legal issue the court had to resolve was the interpretation of the relevant statutory provisions concerning the appointment of trustees upon the death of a member in a self-managed superannuation fund context.

The court examined the statutory framework provided by the Superannuation Industry (Supervision) Act 1993, focusing on whether there was a mandatory requirement to appoint the executor of the deceased member's estate as the trustee of the fund. The court also considered whether there was sufficient evidence to support a claim of lack of bona fides in the exercise of the trustee's discretion. After a thorough analysis, the court concluded that there was no mandatory requirement to appoint the executor as the trustee and found no evidence to substantiate the claim of lack of bona fides.

The reasoning of the court was that the statutory provisions did not compel the appointment of the executor as the trustee. Additionally, the court held that the assertion of lack of bona fides was not supported by any evidence presented. Consequently, the appeal was dismissed, affirming the lower court's decision. The court's decision underscores the importance of strict adherence to statutory mandates and the necessity of evidentiary support for claims of improper conduct in the administration of superannuation funds.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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