Mingarelli Bros Pty Ltd v Mingarelli - [2015] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2015 05436

MINGARELLI BROS PTY LTD (ACN 064 855 054) (trading as MINGARELLI TILES)	Plaintiff
v
ROBERT MINGARELLI and LAI MEI LOW (also known as DOROTHY LOW)	Defendants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2015
DATE OF JUDGMENT:	6 November 2015
CASE MAY BE CITED AS:	Mingarelli Bros Pty Ltd v Mingarelli
MEDIUM NEUTRAL CITATION:	[2015] VSC 610

---

PRACTICE AND PROCEDURE ‑ Costs ‑ Discretion of the Court to award costs ‑ Where defendants admitted wrongful conduct ‑ Whether plaintiff entitled to indemnity costs ‑ Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 ‑ Ugly TribeCo Pty Ltd v Sikola [2001] VSC 189 ‑ Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M A Robins QC	Kliger Partners
For the Defendant	J L Evans	Madgwicks

HER HONOUR:

Introduction

By order made 31 July 2015, All Pavings Co Pty Ltd was removed as the trustee of the Mingarelli Family Trust (‘the Trust’) and Mr Nathan Kuperholz, solicitor, was appointed as trustee in its place.

One of the primary assets of the Trust is a business known as Mingarelli Tiles, a retailer of tiles and related products carrying on business at 90 Cochranes Road, Moorabbin (‘the business premises’).

All Pavings Co Pty Ltd holds 98 ordinary shares of one dollar each in the plaintiff, Mingarelli Bros Pty Ltd. Paul Joseph Mingarelli and the first defendant each hold one ordinary share in the plaintiff.

On 31 July 2015, the children of Francesco Mingarelli deceased, being Robert Mingarelli, the first defendant and Claudia Katherine Mingarelli, were removed as executors and trustees of his estate, and Mr Kuperholz was appointed the administrator of the estate.

For a considerable time prior to the appointment of Mr Kuperholz, the children of the deceased have been in dispute concerning various matters, including the running of the Mingarelli Tiles business. Specifically, the first defendant claimed to be the owner of fifty per cent of the business pursuant to arrangements said to have been made in 2007 between him, Paul Mingarelli and the deceased. Those alleged arrangements are yet to be formalised and resolved between the three children.

Since his appointment on 31 July 2015, Mr Kuperholz repeatedly informed the first defendant that he objected to him and the second defendant having any access ‘as of right’ to the business or its records and objected to the first defendant going to the business premises, with or without notice.

From time to time the first defendant demanded the provision of certain financial records of the business. Mr Kuperholz informed him that he has no ‘as of right’ entitlement to such documentation, however, at a meeting on or about 1 October 2015, Mr Kuperholz informed the first defendant that he would obtain and provide him with further copies of the trading…

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 Mingarelli Bros Pty Ltd v Mingarelli

Details

AGLC: Mingarelli Bros Pty Ltd v Mingarelli [2015] VSC 610
Case: [2015] VSC 610
Decision Date: 6 November 2015

CaseChat Overview and Summary

Mingarelli Bros Pty Ltd was involved in a legal dispute with Mingarelli, and the matter was heard in the Supreme Court. The dispute centred on costs incurred in the proceedings, specifically whether the plaintiff was entitled to indemnity costs due to the defendants' admission of wrongful conduct. The case referenced several precedents, including Colgate-Palmolive Co v Cussons Pty Ltd, Ugly Tribe Co Pty Ltd v Sikola, and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd. The court had to decide whether the defendants' admission of wrongdoing warranted an award of indemnity costs to the plaintiff.

The court examined the relevant legal principles and case law to determine whether the defendants' admission of wrongful conduct justified the plaintiff being granted indemnity costs. The precedents cited established that where a party admits liability or wrongdoing, the court may exercise its discretion to award indemnity costs to the successful party. However, the court also noted that the discretion to award such costs is not automatic and must be exercised judiciously.

After considering the evidence and applicable legal principles, the court found that the defendants' admission of wrongful conduct did warrant an award of indemnity costs to the plaintiff. The court emphasised that the discretion to award indemnity costs is not to be exercised lightly but, in this instance, the circumstances justified such an award. The court determined that the plaintiff was entitled to indemnity costs due to the defendants' admission of wrongdoing.

The court made orders for the defendants to pay the plaintiff's costs of the proceeding on an indemnity basis. This decision followed the precedents cited, where admissions of wrongdoing by a party can lead to an award of indemnity costs to the successful party. The court's decision was grounded in the need to balance the exercise of discretion with the principles of fairness and justice in the legal proceedings.

Orders