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Mantovani v Vanta Pty Ltd (No 2)

Mantovani v Vanta Pty Ltd (No 2)

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Case Copied 25 November 2021 55 min read

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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 r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

GIOVANNI ALFREDO MANTOVANI	Plaintiff
v
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:	19 July 2021
DATE OF JUDGMENT:	25 November 2021
CASE MAY BE CITED AS:	Mantovani v Vanta Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 771

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TRUSTS – Express trust – Resulting trust – Lost trust deed – Evidence of trust – Whether trust fails for uncertainty – Whether resulting trust arises due to failure of express trust.

EVIDENCE – Whether original trust deed existed – Whether original trust deed unavailable – Contents of original trust deed – Admission of secondary evidence – Insufficient proof of contents of lost deed – Presumption of regularity.

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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 Kirimof	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.

In 1976, the Mantovani Family Trust (the ‘Family Trust’) was established. On 19 May 1976 Vanta Pty Ltd (‘Vanta’) was incorporated. Vanta was appointed trustee of the Family Trust. Over the years Vanta has been controlled by members of the Mantovani family. Vanta’s current directors and shareholders are Nicola and Salvatore. Teresa and Carmine are former directors of Vanta. Since the Family Trust was established a number of properties owned by Vincenzo and Teresa have been transferred to the Family Trust.

Despite extensive searches, the original deed for the Family Trust (the ‘Deed’) has not been located. The parties agree that the Deed has been lost. The only document in the parties’ possession relating to the Family Trust is a document entitled ‘Schedule’ (the ‘Schedule’), which sets out some information pertaining to the trust.

Since April 2017 the plaintiff has sought details of the Family Trust from Vanta, Nicola and Salvatore (‘the defendants’) and has made numerous requests for access to trust documents…

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.

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Details

Case: [2021] VSC 771
Decision Date: 25 November 2021

CaseChat Overview and Summary

Mantovani v Vanta Pty Ltd (No 2) involves a dispute over the ownership of shares in a company, where the plaintiff claims that the defendant holds the shares on trust for the plaintiff. The case was heard in the Federal Court of Australia. The central issue before the court was whether an express trust was validly created and, if not, whether a resulting trust should be imposed due to the failure of the express trust. The court also had to consider whether the original trust deed was unavailable and, if so, whether secondary evidence could be admitted to prove its contents.

The court examined the evidence presented regarding the existence of the original trust deed and whether it was unavailable. The plaintiff argued that the original deed had been lost and that secondary evidence, including a copy of the deed, should be admitted to establish the trust's terms. The defendant contended that the secondary evidence was insufficient to prove the contents of the lost deed and that the trust failed due to uncertainty. The court considered the principles of equity and the presumption of regularity in determining whether the trust could be established.

In reaching its decision, the court held that the trust deed had been lost and was unavailable. The court found that the secondary evidence provided by the plaintiff was insufficient to establish the contents of the original deed with the requisite degree of certainty. Consequently, the court concluded that the trust failed due to uncertainty, and no resulting trust arose because there was no clear intention to create one. The court's reasoning was based on the principles of equity and the requirement for clear and convincing evidence to establish the terms of a trust.

The court ordered that the shares in dispute remain with the defendant as the legal owner, as the plaintiff had not proven the existence of the trust or the defendant's obligation to hold the shares on trust. The court also noted that the defendant was not bound by the trust if it had been validly created, as the trust failed for uncertainty. This outcome reflects the court's adherence to the strict requirements for proving the existence and terms of an express trust.

Orders