Messina v Mariangela Rodi as Executor of the Estate of Virginia Silvestro (Dec) [No 2]

[2014] WASC 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MESSINA -v- MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC) [No 2] [2014] WASC 32

CORAM:   LE MIERE J

HEARD:   30 OCTOBER 2013

DELIVERED          :   30 OCTOBER 2013

FILE NO/S:   CIV 2500 of 2009

MATTER                :the Administration Act 1903 (WA) s 45

the Will and Estate of Virginia Silvestro late of 354 Wanneroo Road, Madeley, in the State of Western Australia, Widow (dec)

BETWEEN:   ELENA MESSINA

Plaintiff

AND

MARIANGELA RODI AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
First First Defendant

ELENA MESSINA AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
Second First Defendant

LOUI SIDORO SILVESTRO AS EXECUTOR OF THE ESTATE OF VIRGINIA SILVESTRO (DEC)
Third First Defendant

JEFFREY LAURENCE HERBERT AS ADMINISTRATOR OF THE ESTATE OF VIRGINIA SILVESTRO
Second Defendant

FILE NO/S              :CIV 1763 of 2013

BETWEEN              :JEFFREY LAURENCE HERBERT AS ADMINISTRATOR OF THE ESTATE OF THE VIRGINIA SILVESTRO (DEC)

Plaintiff

AND

FRANCESCO SILVESTRO
First Defendant

LOUI SIDORO SILVESTRO
Second Defendant

DENISE CAROL SILVESTRO
Third Defendant

GLENNIS DAWN SILVESTRO
Fourth Defendant

Catchwords:

Trustees Act 1962 (WA) s 92(1) - Power to give advice or direction concerning property subject to a trust - Compromise agreement

Legislation:

Trustees Act 1962 (WA)

Result:

Application granted

Category:    B

Representation:

CIV 2500 of 2009

Counsel:

Plaintiff:     No appearance

First First Defendant     :     No appearance

Second First Defendant  :     No appearance

Third First Defendant     :     No appearance

Second Defendant         :     Mr M N Solomon

Solicitors:

Plaintiff:     No appearance

First First Defendant     :     No appearance

Second First Defendant  :     No appearance

Third First Defendant     :     No appearance

Second Defendant         :     Jackson McDonald

CIV 1763 of 2013

Counsel:

Plaintiff:     Mr M N Solomon

First Defendant             :     Ms S Edwards

Second Defendant         :     Ms S Edwards

Third Defendant           :     Ms S Edwards

Fourth Defendant          :     Ms S Edwards

Solicitors:

Plaintiff:     Jackson McDonald

First Defendant             :     Sonia Edwards Legal

Second Defendant         :     Sonia Edwards Legal

Third Defendant           :     Sonia Edwards Legal

Fourth Defendant          :     Sonia Edwards Legal

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

Ireland v Retallack [2012] NSWSC 1179

Plan B Trustees Ltd v Maitland Parker [2012] WASC 392

1. LE MIERE J: By chamber summons dated 25 September 2013 the second defendant, Mr Herbert, as the administrator of the will and the unadministered portion of the estate of Virginia Silvestro, seeks the court's directions pursuant to s 92 of the Trustees Act 1962 (WA) that he is justified in:

   (1)settling the claims the subject of action CIV 1763 of 2013 on the terms contained in the letter from Jackson McDonald to Sonia Edwards Legal, dated 23 August 2013, and the email from Sonia Edwards to Jackson McDonald sent on 27 August 2013, attached to the affidavit sworn by Robert Leslie Mackenzie on 20 September 2013 and marked 'RM‑01' and 'RM‑02' respectively; and

   (2)settling the contract of sale with Scorpio Properties Pty Ltd for its purchase of 354 Wanneroo Road, Madeley, Western Australia. 

2. Mr Herbert also seeks an order that his costs and disbursements of and incidental to this application be paid out of the estate of the late Virginia Silvestro.  Further, Mr Herbert seeks an order that order 4(e) of the orders that I made on 23 August 2011, and subsequently varied on 28 September 2012, be vacated and in their place the following orders be made: 

   Settlement is to occur within 12 months of the date of the contract for sale provided that the Administrator may extend the Settlement Date by up to 90 days and terminate the contract for sale if he is unable to comply with any representation or warranty or the terms of those orders.

3. On 30 October 2013 I made the orders sought by the administrator and delivered ex tempore reasons for doing so.  This is an edited version of those reasons. 

Evidence

1. The following affidavits have been read in support of the applications:  affidavit of Mr Herbert sworn 6 September 2013, affidavit of Mr Herbert sworn 23 April 2013, affidavit of Mr Herbert sworn 30 October 2013, affidavit of Mr Mackenzie sworn 24 September 2013, and affidavit of Judith Frances Arnold sworn 18 October 2013. 

2. In addition, I have read the confidential memorandum of advice dated 13 September 2013 from Marcus Solomon, counsel for the administrator.  Mr Solomon gave advice to the administrator in respect of the offer to settle the proceedings in CIV 1763 of 2013, which has given rise to this application.

Background

1. The background to this application is well known to all of the persons with an interest in this proceeding and is conveniently set out in the administrator's outline of submissions.

2. On 6 May 2013 I ordered and declared, inter alia, that Mr Herbert:

   (a)was justified in commencing proceedings against the defendants seeking vacant possession and delivery up of the property and associated declarations; and

   (b)would be justified in settling the claims the subject of those proceedings on terms that he is advised by his solicitors are reasonable having regard to counsel's opinion and advice as to the merits of those claims and the estimated costs, delay and risks associated with proceeding to and conducting a trial of those claims.

3. The background to those orders was set out in Mr Herbert's affidavits filed in these proceedings sworn 21 September 2012 and 23 April 2013.  In short, the circumstances set out in those affidavits which led to my orders of 6 May 2013 were as follows:

   (a)Mr Herbert was appointed as the administrator of the estate on 7 May 2012;

   (b)the property was the sole remaining substantial asset of the estate;

   (c)Mr Herbert entered into the contract of sale;

   (d)the defendants in CIV 1763 of 2013 operated a nursery business on the property, refused to vacate the property or pay rent and failed to pay rates and taxes associated with the property as and when they fell due;

   (e)the defendants in CIV 1763 of 2013 alleged that they were entitled to occupy the property on the basis of a leasehold interest or some other enforceable right to occupy; and

   (f)Frank Silvestro further asserted that a portion of the property was gifted to him by his mother and that he was in any event entitled to an even greater portion of the property on the basis of adverse possession.

4. The circumstances leading to the present application are set out in the affidavit of Mr Herbert of 6 September 2013 and the affidavit of Mr McKenzie of 24 September 2013.  In short:

   (a)pursuant to the orders of 6 May 2013, on 10 May 2013 Mr Herbert caused a writ (endorsed with a statement of claim) to be issued against the defendants in CIV 1763 of 2013; and

   (b)the proceedings in CIV 1763 of 2013 were settled by agreement (subject to his application) on terms set out in the letter from Jackson McDonald to Sonia Edwards dated 23 August 2013 (annexure RLM‑1 to the affidavit of Robert McKenzie).

Jurisdiction

1. Section 92(1) of the Trustees Act provides: 

   Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property or respecting the exercise of any power or discretion vested in the trustee. 

2. The jurisdiction conferred on this court by s 92 was recently considered by Edelman J in Plan B Trustees Ltd v Maitland Parker [2012] WASC 392 where his Honour said:

   The proper approach to whether directions fall within the subject matter jurisdiction of s 92 of the Trustees Act 1962 (WA) is to start by comparing the text of the directions sought with the text of s 92, construed as I have indicated above.

   The directions sought, as set out above at [5], ask whether Plan B Trustees is 'justified in not taking legal proceedings …', alternatively whether Plan B Trustees 'is justified in commencing proceedings by writ in this Honourable Court seeking a declaration'. Both of these directions are quintessentially examples of directions 'respecting the exercise of any power or discretion vested in the trustee' within the meaning of s 92. In the circumstances of this case the directions also related to the subject matter jurisdiction 'concerning any property subject to a trust'.

   Numerous cases in this jurisdiction have accepted that there is jurisdiction to give such directions under s 92. There is also long standing authority to this effect in England, and other jurisdictions in the context of legislation modelled on Lord St Leonards' Act.  And, for the reasons explained above: 

   (1)it is not a restriction upon this Court's jurisdiction to give such directions that the directions may involve the determination of substantive issues, such as issues of interpretation of the trust document or that the proceedings are non-adversarial in character; and

   (2)it equally cannot be a restriction upon this Court's jurisdiction to give such directions that the directions, such as those sought in this case, merely involve the consideration of the strength of arguments concerning substantive issues, such as the interpretation of the trust document [45] – [47].

   I respectfully adopt his Honour's conclusions for the reasons his Honour there stated.

3. I find that the directions sought in this case are directions respecting the exercise of any power or discretion vested in the trustee and directions concerning any property subject to a trust.  I find that this court has jurisdiction to make the directions sought.

4. Counsel for the administrator referred to observations of Associate Justice Hallen in Ireland v Retallack [2012] NSWSC 1179 concerning the exercise of the court's power. His Honour there provided a useful summary of relevant authority:

   It is important to remember that the present application is not one in which the Court is being asked to approve a compromise already reached by the Plaintiff.  In this case, the Court is being asked, firstly, to provide advice and direction to enable the Plaintiff to properly discharge the duties of his office, one such duty, being to protect the interests of the residuary beneficiary as best as that can be done in all the circumstances.  The principal advice relates to whether the Plaintiff would be justified in compromising legal proceedings in which he is the Defendant representing the estate.

   In Re Beddoe [1893] 1 Ch 547, Bowen LJ said at 562: 'If there be one consideration again more than any other which ought to be present in the mind of a trustee, especially the trustee of a small and easily dissipated fund, it is that all litigation should be avoided, unless there is such a chance of success as to render it desirable in the interests of the estate that the necessary risk would be incurred.'

   In McKinnon v Samuels [2000] VSC 393, which involved an application for approval of a proposed compromise by trustees, Eames J explained the role of the court in a case such as the present one:

   '[14]It is the trustees who have the absolute discretion to determine whether a compromise should be reached and as to what the terms of any compromise should be.  The court can do no more than state whether it is proper for the trustees to exercise the powers of compromise as they intend.  The terms of the compromise are solely the concern of the trustees.  It is not proper for the court to approve the compromise in terms of assessing the wisdom of the terms of compromise, whether from the point of view of the trustees or those of any beneficiaries of the estate.  What the court can properly be called upon to do is to advise the trustees whether it is proper for them to agree to the compromise and, if appropriate, to rule that they be at liberty to enter the agreements contained in the terms of settlement.

   [15]The relevant principles are very helpfully discussed in a recent decision of Debelle J in the South Australian Supreme Court in IOOF Australia Trustees Ltd v the Trustee Act 1936 [1999] SASC 461. See, too, Re Green (above) at 850 per Crockett J and the judgment of Lord Cairns cited by Crockett J in Gisborne v Gisborne (1877) 2 App Cas 300 at 307. In the case first mentioned, Debelle J was exercising statutory power to give advice and directions to a trustee, but I agree with the submissions of Mr Boaden that the same considerations apply when the court is exercising its inherent power as apply in the statutory regime with which Debelle J was concerned.

   [16]In Re Green, Crockett J adopted passages from the judgment of Lord Cairns in Gisborne v Gisborne. Lord Cairns said this, at 307:

   My Lords, in a case like this, where the Court of Chancery recognises that the trustees, and not the court, are to be the judges of the quantum to be allowed, where the trustees are willing to exercise the discretion which they claim to exercise, and where the court allows and declares their right to exercise that discretion, I do not understand it to be the habit of the court to go on and express any opinion as to whether the exercise of the discretion by the trustees is a wise or an unwise exercise of that discretion.  I understand that in such a case the Court of Chancery steps aside and recognises the trustees as the persons to exercise the discretion, and in its decree does nothing more than, with regard to payments which may be necessary, act upon the exercise of the discretion of the trustees so made.

   In Re Green, Crockett J adopted that approach and held, at 850:

   However, wisdom or lack of it in relation to the proposed exercise of the discretion is not something upon which I have been asked in this originating summons to express an opinion.  What I have been asked in the relevant part of question 4 is to say whether it is improper for the plaintiffs to exercise the power which they possess in the postulated manner.  As to that, I think it is something on which the Court has jurisdiction to give an answer if it is in fact satisfied as to there being no impropriety.  This much, I think, appears from what was said by Buckley J in Re Allen-Meyrick's Will Trusts [1966] 1 WLR 499, at p 503.

   In IOOF Australia Trustees Ltd & the Trustee Act 1936, Debelle J said this:

   It is important to note that the application for advice and directions does not proceed to a final determination of the rights of parties.  The procedure is not available for the determination of substantive issues between parties:  Re:  Hunter (above), and Re: Union Trustee Co of Australia Ltd (1936) QWN 6.

   The procedure enables the court to advise the trustee whether it is lawful to exercise its discretion in a certain way but it cannot tell the trustee how to exercise that discretion or whether a proposed exercise of discretion is necessarily correct:  see Gisborne v Gisborne (1877) 2 App Cas 300 per Lord Cairns at 307; Re: Osborne (1863) 2 SCR (NSW) Eq 89; Re: Driller and Nebneson [1972‑1973] ALR 735; Re: Allen-Meyricks Will Trusts [1966] 1 WLR 499 at 503; and Re: Green [1972] VR 848 at 850. There may be instances where the court will decide what will be in the best interests of the trust estate. Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 is an example. But, where the court is being asked for advice and direction concerning a compromise of litigation, the court can do no more than consider whether it is proper for the trustee to consider a compromise. The terms of the compromise will be for the trustee to determine.

   One instance of the use of the procedure is where a trustee is faced with litigation, either as plaintiff or defendant, and desires advice whether he should institute proceedings or defend them:  Re: Atkinson [1971] VR 612 at 615‑616; Re: England's Settlement [1918] 1 Ch 24 at 31; and Chettiar v Chettiar (No 2) [1962] 2 All ER 238 at 245. If the trustee fails to obtain the advice of the court, the trustee is at risk of being personally liable to pay the costs: Re: Brogden (1888) 38 Ch D 546 at 556 and Re: Atkinson (above).  The power may be used also to approve a compromise or any other transaction.  The court, therefore, has power to determine whether it is lawful or proper for a trustee to compromise litigation.  It is, of course, a matter for the trustee as to what it is willing to accept by way of compromise.

   I have already mentioned that the procedure of seeking advice and direction enables the court to advise a trustee whether it is lawful to exercise its discretion in a certain way.  The court does not go so far as to tell the trustee how to exercise that discretion.  For that reason and for the reasons which follow, I do not think that it is proper for the court to approve the compromise.  Instead, the function of the court is to advise IOOF whether, in its opinion, it is proper for IOOF to agree to the compromise, the terms of the compromise being a matter for IOOF to determine.

   The additional reasons for my conclusion are these. The court does not have available to it all of the evidence which the parties might adduce.  It is not aware of all of the facts.  Questions of law have not been argued. The question whether it is prudent to agree to the compromise is, therefore, a matter for IOOF to decide.  IOOF has a better understanding of, and a better appreciation for, the factual issues and its prospects of success than the court could have at this stage.  In deciding whether to agree to the compromise, IOOF will have regard to those matters as well as to other issues such as the uncertainty of and risks inherent in litigation, the length of the trial so far, the manner in which the trial has been conducted by the parties, the likely length of the trial, the costs which have been incurred, the costs yet to be incurred and, as well, any potential liability IOOF may have to pay part or all of the defendants' costs.  The costs for all parties to this point have been very substantial.

   There is another very important factor, which in one sense overrides all others.  The parties are, by terms of their commercial arrangements and, in particular, by the Tripartite Agreement, placed in a commercial relationship which must continue for a number of years yet.  It is desirable that parties who must deal together almost on a daily basis be able to resolve their differences and reach an understanding as to the manner in which they will regulate their future dealings.

   In short, IOOF will be called upon to make a commercial judgment having regard to all of these factors.  The court can do no more than examine whether IOOF has had regard to those factors.  The responsibility for making the decision whether to agree to the compromise is a matter for IOOF and not the court.

   It is important to remember that the court exists to determine disputes which parties cannot themselves resolve. IOOF has decided that it is desirable to resolve this long and complex litigation on certain terms.  It has been able to reach this compromise assisted by the services of a mediator.  The court would be very reluctant to suggest that IOOF was wrong in agreeing to the compromise.

   For all of these reasons, I am satisfied that it is proper for IOOF to agree to a compromise of these actions.  It is, however, for IOOF to determine what should be the terms of the compromise.  The court should not descend to examine the question whether each of the separate terms of the compromise is an appropriate compromise of that particular aspect of the dispute.

   For all these reasons, I am satisfied that an order should be made that IOOF is at liberty to enter into the compromise.

   [17]I have cited extracts from the judgment of Debelle J at some length because they are, with respect, both helpful and entirely appropriate to the case before me.  In this case I am quite prepared to approve the actions of the trustees on the basis discussed in the judgments cited.'

   In Chamberlin v Spry [2008] VSC 562, at [14], Pagone J, after referring to some of the authorities quoted above, said:

   As these passages show it is critical to distinguish between the Court being asked to make 'a decision as to the wisdom of the proposed course of conduct' with it being 'asked to consider whether there was no impropriety'.  The particular approval said to be sought from the Court is that the trustees would be acting within power if, in the trustees discretion, they decided to act in the way proposed or contemplated.  The Court is being asked only whether the proposed decision is within their power to make if they consider it appropriate to do so.  The order made by the Court should reflect, and be expressed in terms which does reflect, the particular 'sense' in which the approval is sought and obtained.  A person reading the order should be able to tell on the face of the order what the Court has determined without ambiguity.  It would not be right for a person affected by the order to be left with the impression that the Court had itself formed the view that the proposal was wise unless, of course, that is what occurred and there was sufficient material upon which the Court could give its approval in that 'sense' [59] ‑ [62].

1. In his written submissions counsel for Mr Herbert made the following written submissions concerning the exercise of the power under s 92 of the Trustees Act:

   As a matter of general principle in respect of the power to give advice or direction sought under s 92:

   (a)there is no limitation on the power;

   (b)there are no implied limitations on discretionary factors;

   (c)the procedure is summary in character;

   (d)the advice is private, because its function is to give personal protection to the trustee and operates as an exception to the court's ordinary function of deciding disputes between litigants;

   (e)a proper purpose for seeking judicial advice includes relief aimed at resolving doubts held by the trustee as to the proper course of action;

   (f)the section is beneficial legislation for the protection of trustees and should not be narrowly construed;

   (g)an order is permissive in nature, its usual form being that the trustee 'would be justified' in taking certain action;

   (h)the plaintiff should place all relevant circumstances before the court and seek an opinion, advice or direction that in those circumstances the trustee would be justified in taking a certain course; and

   (i)it is a mistake to think that the trustee must 'prove' facts according to a certain standard of proof to enable findings of fact to be made as would be the case in adversarial litigation.

   The power may be used to approve a compromise or any other transaction.  The court, therefore, has power to determine whether it is lawful or proper for a trustee to compromise litigation.  It is, of course, a matter for the trustee as to what it is willing to accept by way of compromise.

   Where the court is being asked for advice and direction concerning a compromise of litigation, the court can do no more than consider whether it is proper for the trustee to consider a compromise.  The terms of the compromise will be for the trustee to determine.

   Thus, it is the trustees who have the absolute discretion to determine whether a compromise should be reached and as to what the terms of any compromise would be.  The court can do no more than state whether it is proper for the trustees to exercise the powers of compromise as they intend.

   It is not proper for the court to approve the compromise in terms of assessing the wisdom of the terms of compromise, whether from the point of view of a trustee or those of any beneficiaries of the estate.  What the court can properly be called upon to do is to advise a trustee whether it is proper for him or her to agree to the compromise and, if appropriate, to rule that the trustee be at liberty to enter the agreements contained in the terms of settlement.

   If there be one consideration more than any other which ought to be present in the mind of a trustee, especially the trustee of a small and easily dissipated fund, it is that all litigation should be avoided, unless there is such a chance of success as to render it desirable in the interests of the estate that the necessary risk would be incurred.

   The settlement of litigation should normally be welcomed.  There are a multitude of reasons why the parties' interests are better served by the security of a reasonable compromise than the vicissitudes of litigation.  Not only does litigation impose financial burdens and potential risks upon an applicant, litigation will also likely be a significant source of stress upon the parties' lives and that of their family.  There are both tangible and intangible benefits to the parties making a reasonable comprise.

   Relevant factors in the exercise of the Court's discretion include that:

   (a)the settlement will limit the burden of continuing legal costs to the estate; and

   (b)the Court is satisfied that the advice of counsel adequately analyses the strengths and weaknesses of the proceedings.  That is so even though the court cannot engage in any analysis of counsel's opinion because to do so would destroy its confidentiality [10] – [17].

Exercise of power in this case

1. I have read the confidential memorandum of advice of Mr Solomon.  I am satisfied that the facts relevant to the case have been brought together and considered by Mr Solomon.  I have considered the advice given by Mr Solomon and the reasons for it.  It appears that all aspects of the case have received proper consideration.  I am satisfied that the opinion of Mr Solomon has been considered and understood by the administrator. 

2. In deciding whether the administrator is justified in making the compromise agreement, I have considered the position of the other parties and the beneficiaries of the estate.  The primary consideration of the administrator is a commercial one.  The administrator has to decide whether it is in the interests of the estate to make the compromise agreement or to proceed to trial with the litigation risks that involves.  The task of the court is not to consider the application as if the court was trying the case and then give or withhold its direction by comparing the proposed settlement with the judgment which might have been given at trial. 

3. I am satisfied that the case has received proper consideration by the administrator and his legal advisers and that he is justified in settling the claims in CIV 1763 of 2013 on the terms set out in the proposed agreement and in the contract of sale with Scorpio Properties Ltd for the purchase of 354 Wanneroo Road in accordance with the offer and acceptance between Mr Herbert and Scorpio, dated 22 February 2013. 

Variation of 23 August 2011 orders

1. I find it is within power and a proper exercise of my discretion to vary order 4(e) made on 23 August 2011, and subsequently varied on 28 September 2012, in the manner set out in [2] of the minute of proposed orders of 29 October 2013.  I have had some hesitation in whether I should make the direction sought in [1.2] of the chamber summons directing that the administrator is justified in settling the contract of sale with Scorpio for its purchase of 354 Wanneroo Road. 

2. Counsel for the administrator acknowledges that the court has not been given any valuation evidence or other evidence which would enable the court to approve the price at which the sale is to proceed.  Counsel informs me that that is not the purpose of cl 1.2 of the proposed orders.  Counsel has drawn my attention to the history of the matter, in particular the matters set out in Mr Herbert's affidavit of 23 April 2013.  That affidavit establishes that the administrator has followed the directions of the court in attending to the sale of the property.  In those circumstances, I consider that the administrator is justified in proceeding to settle the sale of the land in accordance with the contract with Scorpio. 

3. As I have said, I have considered the position of the other parties and the beneficiaries of the estate.  No party, beneficiary or person interested, has appeared to oppose the directions sought or informed the court that they oppose the making of those directions.

Submissions by some beneficiaries

1. Five beneficiaries:  Vincenzo Silvestro, Elena Messina, Rosa Nunn, Pam Luca and Armando Silvestro, delivered to the court submissions described as 'Beneficiaries Submissions'.  Those beneficiaries, in the course of those submissions, make a number of criticisms of the administrator and of his legal advisers and, in particular, criticisms of Loui and Frank Silvestro.  At page 7 of those submissions, having put forward their criticisms to which I have referred, those beneficiaries said: 

   It needs to be firstly said, that even though we disagree with Mr Herbert's conclusions we will not oppose his request to have this court approve this application in order to facilitate the settlement of the estate's property with John Mayor on 7 February 2014 but would like to bring to the attention of your Honour the following points for inclusion in the orders. 

2. The submissions then go on to make three particular points, to which I will refer shortly.  I informed the parties and others present in court that, on a fair reading, I took the submissions to be saying those beneficiaries did not oppose the court making the directions sought by the administrator, but asked the court to consider qualifying them or adding further directions if the court could and considered it appropriate to do so; further, if the court was not able to do so or did not consider it appropriate to do so, then those beneficiaries did not, in those circumstances, oppose the making of the directions.  Having stated that that is how I understood the submissions on a fair reading, I invited all of those beneficiaries present in court to make any further submission if they wished to do so.  None did so. 

3. I turn then to consider the three points made in those submissions.  The first point is to the effect that the Trustees Act makes provisions for a trustee's fees, including any expenses reasonably incurred in or about the execution of the trusts or powers.  Therefore, it was said it is unnecessary to include an order that the administrator's costs and disbursements of and incidental to this application be paid out of the estate.  The court has power to make orders in relation to the particular application before it, which is distinct from the provisions in the Trustees Act which concern the trustee's fees, including any expenses reasonably incurred in or about the execution of the trusts or powers. 

4. The power which the court has been asked to exercise on this application is confined to the administrator's costs and disbursements of and incidental to this application, and it seeks an order that those costs be paid out of the estate.  I find that the administrator has acted properly in bringing this application to the court.  It is appropriate that the administrator's costs and disbursements of and incidental to this application be paid out of the estate.  That does not make any provision for other costs and disbursements incurred by the administrator in the course of administering the estate.  This particular order is confined to this application and it is proper that the order be made that the administrator's costs and disbursements of and incidental to this application be paid out of the estate. 

5. The second matter raised concerns the term of the settlement that $50,000 be paid to each of Frank and Loui Silvestro.  In essence, the submissions say it is not just and ethical to reward Frank and Loui Silvestro with a cash payment of $50,000 each.  It is not part of the function of the court to address that matter.  As I have said, it is not part of the function of the court to consider what judgment I would have reached had I been trying the matter and to only make an order or a direction that the administrator is justified in settling the action on the terms of the agreement if those terms coincide with an order I would have made after trying the case. 

6. Part of the settlement which has been negotiated by the administrator is that $50,000 be paid to each of Frank and Loui Silvestro.  The power of the court on this application is confined to directing that the administrator is justified in making that agreement or not doing so.  The court does not have power to direct the administrator to make a different settlement than that which has been made.  As I have said, I have considered the confidential memorandum of advice of Mr Solomon to the administrator.  I am satisfied that the relevant matters have been brought together by Mr Solomon, that he has addressed the relevant issues in the proceedings, in CIV 1763 of 2013, and that the settlement which has been agreed to is a proper commercial settlement. 

7. The third matter raised in the submissions is, in effect, that the court should make orders directed to Frank and Loui Silvestro in the event that they do not vacate the property in accordance with the agreement.  That matter has now been addressed by the administrator and the administrator, as plaintiff in CIV 1763 of 2013, and Frank and Loui Silvestro and Denise and Glenys Silvestro as defendants in that action, will consent, and have consented, to the court making an order that the defendants, that is, Francesco, Loui, Denise and Glenys Silvestro shall provide vacant possession of the property on or before 7 February 2014. 

8. The effect of that order will be that those defendants, Francesco, Loui, Denise and Glenys Silvestro, will be required by order of this court to vacate the property by 7 February 2014.  Should they fail to do so, they will be in breach of a court order, with all the consequences that flow from that and all the enforcement procedures which are available to the parties to enforce an order of this court.  In my view, that appropriately addresses the matters raised by those beneficiaries in [3] of their submissions. 

Conclusion

1. For those reasons, there will be orders in terms of the minute of proposed orders of 29 October 2013.  Furthermore, by consent, in CIV 1763 of 2013 there will be orders in terms of the minute of proposed orders of 29 October 2013.