Montevento Holdings Pty Ltd v Scaffidi

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, BELL AND GAGELER JJ

MONTEVENTO HOLDINGS PTY LTD & ANOR               APPELLANTS

AND

GIUSEPPE DIEGO SCAFFIDI & ANOR  RESPONDENTS

Montevento Holdings Pty Ltd v Scaffidi

[2012] HCA 48

7 November 2012

P22/2012

ORDER

1.Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Western Australia made on 27 July 2011 and, in their place, order that:

(a)the appeal to that Court be dismissed; and

(b)Giuseppe Scaffidi pay the costs of Eugenio Scaffidi, Maria Scaffidi and Montevento Holdings Pty Ltd, including reserved costs, to be taxed if not agreed.

3.The first respondent pay the appellants' costs of the appeal to this Court.

On appeal from the Supreme Court of Western Australia

Representation

K A Vernon with A S Meysner for the appellants (instructed by Butcher Paull & Calder)

P E Cahill SC with C J Garde for the first respondent (instructed by Oldfield Legal)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. FRENCH CJ, HAYNE, CRENNAN, BELL AND GAGELER JJ.   Part of the background to this appeal is a long-running dispute between members of the Scaffidi family over the control of a trust called The Scaffidi Family Trust ("the trust").  The appeal concerns the proper construction of a clause in the trust deed governing the appointment of trustees.

2. The second appellant, Eugenio Scaffidi, and the first respondent, Giuseppe Scaffidi, are brothers.  They are the only children of Antonio Scaffidi, who died on 29 August 2004, and the second respondent, his widow Maria Scaffidi, who is party to these proceedings by her guardian ad litem, the Public Trustee.  The second respondent has filed an appearance submitting to any orders made by the Court.  The first appellant, Montevento Holdings Pty Ltd ("Montevento"), was incorporated on 27 March 2007.  Since that date, Eugenio Scaffidi has been its sole director and shareholder.

3. The trust was created by a deed of settlement dated 2 May 1977 ("the trust deed").  It is a discretionary trust designed to regulate the acquisition, management and disposal of assets of the Scaffidi family.  Giuseppe, Eugenio and Maria Scaffidi are all within the class of beneficiaries of the trust, and Eugenio Scaffidi is the appointor of the trust.

4. This appeal concerns the proper construction of cl 11.03 of the trust deed, which provides that "[i]f, and so long as any individual Appointor is a Beneficiary that individual shall not be eligible to be appointed as a Trustee."  By a deed poll dated 18 February 2009, in his capacity as appointor, Eugenio Scaffidi appointed Montevento as the sole trustee of the trust.  On 19 April 2010, Giuseppe Scaffidi commenced proceedings in the Supreme Court of Western Australia against Eugenio and Maria Scaffidi and Montevento, seeking a declaration that the appointment of Montevento as the sole trustee of the trust was invalid because it breached cl…