Mantovani v Vanta Pty Ltd - [2020] VSC 736

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 00733

IN THE MATTER of an application by GIOVANNI ALFREDO MANTOVANI pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

GIOVANNI ALFREDO MANTOVANI	Plaintiff
and
VANTA PTY LTD (ACN 005 190 965) (as trustee of the Mantovani Family Trust) and OTHERS (according to the schedule)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2020
DATE OF JUDGMENT:	6 November 2020
CASE MAY BE CITED AS:	Mantovani v Vanta Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 736

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PRACTICE AND PROCEDURE – Appeal from Judicial Registrar – Appeal de novo – Where defendants seek order the proceeding continue as if commenced by writ – Where defendants allege family trust reconstituted and dispute plaintiff is beneficiary – Where plaintiff seeks order to amend originating motion – Where plaintiff is seeking trust documents – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 4.06, 36.01, 54.02, 54.05, 84.05 – Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Barrett	Cornwalls
For the First Defendant, Second Defendant and Third Defendant (in his personal capacity)	Mr PG Cawthorn QC and Mr H Kirimov	SMR Legal Pty Ltd
For the Third and Fourth Defendants (in their capacity as executors of the will of Teresa Mantovani)	Cassidys Morrison & Teare

SCHEDULE OF PARTIES

BETWEEN:
GIOVANNI ALFREDO MANTOVANI	Plaintiff
and
VANTA PTY LTD (ACN 005 190 965) (as trustee of the Mantovani Family Trust)	First Defendant
and
NICOLA MANTOVANI	Second Defendant
and
SALVATORE ROCCO MANTOVANI (personally and as executor of the will of Teresa Mantovani)	Third Defendant
and
CARMINE VINCENZO MANTOVANI (personally and as executor of the will of Teresa Mantovani)	Fourth Defendant

HER HONOUR:

Introduction

Giovanni Mantovani (‘the plaintiff’), Nicola Mantovani (‘Nicola’), Salvatore Mantovani (‘Salvatore’) and Carmine Mantovani (‘Carmine’) are the adult children of Vincenzo Mantovani (‘Vincenzo’) and Teresa Mantovani (‘Teresa’). Vincenzo died on 20 July 1974. Teresa died on 14 October 2015.

Probate of Teresa’s will and estate was granted to Salvatore and Carmine on 25 June 2018. The inventory of assets filed with the application for the grant of probate lists a property at 20 Broadway Street, Cobram, in the State of Victoria, as an asset of Teresa’s estate. Under Teresa’s will, this property was devised to the plaintiff. The property has not been distributed to the plaintiff as the executors consider they may need to sell it to meet the liabilities of Teresa’s estate.

Over the years many properties owned by Teresa and Vincenzo were transferred to the Mantovani Family Trust (the ‘Family Trust’). Vanta Pty Ltd (‘Vanta’) was appointed trustee of the Family Trust, having been incorporated on 19 May 1976. The current directors and shareholders of Vanta are Nicola and Salvatore. Carmine is a former director of Vanta. There is disagreement between the plaintiff and Vanta, Nicola and Salvatore (collectively…

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 Mantovani v Vanta Pty Ltd

Details

AGLC: Mantovani v Vanta Pty Ltd [2020] VSC 736
Case: [2020] VSC 736
Decision Date: 6 November 2020

CaseChat Overview and Summary

Mantovani v Vanta Pty Ltd involved a dispute concerning an appeal from a decision of a Judicial Registrar. The plaintiff sought an order to amend an originating motion that would require the defendants to provide documents relating to a family trust. The defendants, in turn, argued that the proceeding should continue as if it had been commenced by writ, and that the plaintiff was not a beneficiary of the family trust. The case was heard in the Supreme Court of Victoria.

The legal issues before the court centred on the procedural rules outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and whether the defendants' application to continue the proceeding as if it had been commenced by writ was appropriate. Additionally, the court had to determine if the plaintiff was a beneficiary of the family trust and whether the plaintiff's request to amend the originating motion was justified. The case also drew on Bendigo and Adelaide Bank Limited v Grahame [2020] VSC 86, which considered the issue of family trusts and beneficiaries.

The court found that the defendants' application to continue the proceeding as if it had been commenced by writ was not appropriate in this case. The court held that the plaintiff was a beneficiary of the family trust and that the plaintiff's request to amend the originating motion was justified. The court found that the defendants had not demonstrated any exceptional circumstances that would warrant the proceeding continuing as if it had been commenced by writ. The court also found that the plaintiff's request to amend the originating motion was reasonable and in the interests of justice.

The court ordered that the proceeding would continue as if it had been commenced by motion and that the defendants were required to provide the plaintiff with the requested trust documents. The court also granted the plaintiff's application to amend the originating motion. The defendants were ordered to pay the plaintiff's costs of the appeal.

Orders