Panizza v Clathington Pty Ltd as former trustee for the P. and D. Panizza Family Trust
[2025] WASC 246
•20 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PANIZZA -v- CLATHINGTON PTY LTD as former trustee for the P. AND D. PANIZZA FAMILY TRUST [2025] WASC 246
CORAM: WHITBY J
HEARD: ON THE PAPERS
DELIVERED : 20 JUNE 2025
FILE NO/S: CIV 2575 of 2015
BETWEEN: GIOVANNI PANIZZA
First Plaintiff
COLOGNA INVESTMENTS PTY LTD (ACN 627 940 925) as trustee for P. AND D. PANIZZA FAMILY TRUST
Second Plaintiff
AND
CLATHINGTON PTY LTD as former trustee for the P. AND D. PANIZZA FAMILY TRUST
First Defendant
SILVANA CARANNA
Second Defendant
DOMENICA MARIA PANIZZA
Third Defendant
ANTONIO CARANNA
Fourth Defendant
Catchwords:
Equity and trusts - Guardian and appointor of trust - Nature of the guardian's and appointor's powers - Whether guardian's and appointor's powers are fiduciary - Court's power to remove guardian and appointor - Whether guardian and appointor should be removed - Whether new guardian and appointor should be appointed
Legislation:
Nil
Result:
Guardian and appointor of trust removed
New guardian and appointor of trust appointed
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Stables Scott |
| Second Plaintiff | : | Stables Scott |
| First Defendant | : | Butcher Paull & Calder |
| Second Defendant | : | In person |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Blenkinsop v Herbert [2017] WASCA 87; (2017) 51 WAR 264
Cardaci v Cardaci [2023] WASCA 158
Cologna Investments Pty Ltd as trustee for P. and D. Panizza Family Trust v Caranna [2023] WASC 368
LGSS Pty Ltd v Egan [2002] NSWSC 1171
Mercanti v Mercanti (2016) 50 WAR 495
Panizza v Clathington Pty Ltd as trustee for P. and D. Panizza Family Trust [2019] WASC 344
WHITBY J:
Introduction
The late Mrs Domenica Panizza and Mr Pietro Panizza had two children, Giovanni Panizza and Silvana Caranna. Without disrespect, I will refer to individuals by their first names, as many have a common surname.
This action concerns the control and management of a family trust. The preliminary issue for determination concerns the removal and appointment of the guardian and appointor of that family trust.
Background
By deed of settlement dated 25 October 1988 (Trust Deed), the P. and D. Panizza Family Trust was created (Panizza Trust). The Trustees of the Panizza Trust were Domenica and Pietro. Domenica was appointed as Guardian and Appointor of the Panizza Trust and Pietro was the successor Guardian and Appointor.
The Trust Deed originally provided, by the Schedule thereto, that the Specified Beneficiaries of the Panizza Trust were the children of the marriage of Domenica and Pietro, additional members of the class of General Beneficiaries, and Domenica and Pietro. However, the Trust Deed provided, by cl 1(3) that Domenica and Pietro were members of the excluded class of beneficiaries - meaning they were not beneficiaries of the Panizza Trust. This was made clear by a deed of amended trust deed dated 27 September 1989 (Deed of Amendment) which deleted the definition of Specified Beneficiaries in the Schedule to the Trust Deed which was replaced with a new definition providing that the Specified Beneficiaries were the children of the marriage of Domenica and Pietro. Giovanni and Silvana are the Specified Beneficiaries of the Panizza Trust.
By deed of variation undated but stamped on 6 January 1994, Clathington Pty Ltd (Clathington) was appointed as the corporate trustee of the Panizza Trust.
Giovanni commenced this action in 2015. The action concerned the control and management of Clathington as Trustee of the Panizza Family Trust. At the time this action was commenced, Silvana was the sole director and secretary of Clathington.
Domenica died on 25 January 2018 and left a will dated 17 April 2015 (Will). Silvana was granted probate of the Will on 24 June 2019.
On 29 May 2018, Kenneth Martin J, on the application of Giovanni, granted an ex parte injunction, until 4.00pm on 7 June 2018, restraining:
(1)Clathington and Silvana (in the name of Clathington) from:
(a)entering into loan agreements, applying for loans or borrowing money;
(b)mortgaging, charging or otherwise encumbering any of Clathington's assets or any assets of the Panizza Trust; or
(c)dealing with any assets of Clathington or the Panizza Trust;
(2)Silvana and her husband, Antonio Caranna, the fourth defendant, from using, accessing, withdrawing money and drawing down any loans from any bank accounts in the name of Clathington; and
(3)Silvana from appointing or attempting to appoint any new trustee to the Panizza Trust or from exercising any powers as appointor of the Panizza Family Trust
(Injunction).
On 7 June 2018, Kenneth Martin J extended the operation of the Injunction until further order of the court.
On 10 September 2019, Kenneth Martin J ordered that Clathington be removed as Trustee of the Panizza Trust and that Cologna Investments Pty Ltd (Cologna) be appointed as Trustee of the Panizza Trust. Giovanni and Mr Ian Blatchford were the directors of Cologna. On 23 September 2019, Kenneth Martin J published his reasons for decision.[1]
[1] Panizza v Clathington Pty Ltd as trustee for P. and D. Panizza Family Trust [2019] WASC 344 (Panizza v Clathington).
On 26 October 2021, Kenneth Martin J ordered an account to be taken by a registrar of the court of the dealings of Silvana in respect of, or on behalf of, Clathington and the Panizza Trust. During that hearing, Kenneth Martin J indicated that the account should be finalised before determination of whom ought to be Guardian and Appointor of the Panizza Trust.
A registrar of the court made various programming orders in relation to the taking of the account and granted numerous extensions to those orders. On 3 January 2025, the registrar provided a report on account, finding that the plaintiffs' amended summary of amount claimed on account filed on 25 July 2023 was correct. That amount was $3,159,832.82.
The preliminary issue I am now required to determine is whether the court should remove Silvana as the Guardian and Appointor of the Panizza Trust, and appoint Giovanni in her place (Preliminary Issue).
For the reasons that follow, I find that Silvana should be removed as Guardian and Appointor of the Panizza Trust, and that Giovanni should be appointed as the Guardian and Appointor of the Panizza Trust.
Procedural history of the Preliminary Issue
On 7 March 2025, the solicitors for the plaintiffs wrote to the court, copied to Silvana, requesting that the action be listed for directions in relation to the Preliminary Issue.
On 25 March 2025, the plaintiffs' solicitors emailed Silvana, who was at the time (and continues to be) self-represented, a memorandum of proposed consent orders seeking to program the hearing of the Preliminary Issue to be heard on the papers. On 26 March 2025, the plaintiffs' filed a minute of proposed orders for hearing of the Preliminary Issue, having not received a response from Silvana.
The action was listed for a directions hearing on 27 March 2025. Silvana did not appear. I made orders programming the hearing of the Preliminary Issue, allowing Silvana the opportunity to file affidavits, submissions and objections to the plaintiffs' chronology. I ordered that the Preliminary Issue be determined on the papers.
The plaintiffs relied on the following material in support of the determination of the Preliminary Issue:
(1)affidavit of Giovanni Panizza sworn 8 April 2025;
(2)affidavit of Giovanni Panizza in support of an application for freezing order sworn 24 May 2018;
(3)affidavit of Antony John Goldfinch sworn 15 May 2025;
(4)chronology filed 4 September 2019;
(5)updated chronology filed 27 May 2025;
(6)outline of submissions filed 16 May 2025; and
(7)supplementary outline of submissions filed 21 May 2025.
The plaintiffs' solicitors served Silvana by email with these documents.[2] I am satisfied that these documents and my orders made on 27 March 2025 came to the attention of Silvana, as she sent an email to the court on 30 May 2025 acknowledging notification.
[2] Affidavit of service of Antony John Goldfinch sworn 28 May 2025.
Silvana did not file any submissions or affidavits and did not file any objection to the updated chronology.
Assumptions made for the purposes of determining the Preliminary Issue
The plaintiffs accept, for the purpose of determining the Preliminary Issue only, the following:
(1)Silvana, by a deed of variation and rectification of the Panizza Trust dated 20 December 2015, was appointed successor Guardian and Appointor of the Panizza Trust, upon the death of Domenica; and
(2)by her Will, Domenica appointed Silvana a successor Appointor of the Panizza Trust.
Therefore, I determine the Preliminary Issue assuming these two facts. I do not however, make any findings of these facts for the purposes of the action otherwise.
Issues
Two issues arise in determining the Preliminary Issue. First, when may the court remove a guardian and appointor of a trust? Second, can and should the court remove Silvana as Guardian and Appointor of the Panizza Trust and appoint Giovanni in her place?
Before turning to consider each of these issues, I will first set out the relevant clauses of the Panizza Trust.
The Trust Deed
Clause 1 of the Trust Deed contains definitions of Guardian and Appointor. By cl 1(14), the Guardian is relevantly defined to mean the person or persons (if any) named in the Schedule. The definition contains a proviso that the Trustees may declare that any person who has not yet become Guardian, but who would or might but for the proviso at some time become Guardian, shall not become Guardian. By cl 1(15), the Appointor is relevantly defined to mean the person named in the schedule or determined according to the provisions of the Trust Deed. Like the definition of Guardian, the definition of Appointor contains a proviso that the Trustees may declare that any person who has not yet become Appointor, but who would or might but for the proviso become Appointor, shall not become Appointor.
Clause 10 of the Trust Deed provides that, subject to the express provisions to the contrary contained in the Trust Deed, the Trustees may exercise every discretion and power vested in them in their absolute and uncontrolled discretion subject to certain stated qualifications. The first qualification is that the Trustees may, before exercising any discretion or power or determination, consult the wishes of the Guardian (if any). The third is that the Trustees shall not, when there is a Guardian, exercise the 'reserved powers' or the 'restricted powers' except after giving notice to the guardian in accordance with cl 21 of the Trust Deed. There are further subclauses in cl 10 relating to the exercise of 'reserved powers'. The 'reserved powers' are defined in cl 10(7). One 'reserved power' is the power contained in cl 31, that is, the power of amendment of the Trust Deed (cl 10(7)(a)(viii)).
Clause 22(1) of the Trust Deed deals with the Appointor. It provides:[3]
[3] Affidavit of Giovanni Panizza sworn 24 May 2018 [2]; Annexure GP-1, page 76.
The Appointor for the time being or in the event of there being no Appointor the legal personal representatives of the last surviving Appointor who was an individual and who died whilst he was Appointor … shall be entitled by instrument in writing at any time and from time to time: -
(a)to remove any Trustee hereof;
(b)to appoint any additional trustee or trustees;
(c)to appoint a new trustee or trustees in the place of any trustee who is removed who resigns his trusteeship or ceases to be a trustee by operation of law;
PROVIDED THAT
(d)if and so long as the Appointor is a beneficiary he shall not be eligible to be appointed as a Trustee hereof;
(e)if there is no Appointor named in the Schedule or if at any time there is no one entitled to exercise the power of the appointor hereinbefore conferred the Statutory and other rights of removing and appointing Trustees hereof may be exercised by the Trustees or by the legal personal representatives or (if the Trustee be a corporation) the liquidator of the last surviving Trustee.
As I have outlined, for the purposes of determining the Preliminary Issue, Silvana is the successor Guardian and Appointor of the Panizza Trust.
When may the court remove a guardian and appointor of trust?
In Blenkinsop v Herbert,[4] the Court of Appeal considered the court's inherent jurisdiction to remove and replace a guardian of a trust. The Court of Appeal, accepting for the purposes of that case that the power to remove a guardian only arose if the position was characterised as fiduciary in nature, said:[5]
… the proper characterisation of the guardian's powers may be better seen as an important, in some cases potentially decisive, consideration as to the exercise of discretion, rather than as a matter going to the existence of the court's powers. There seems to us to be much to be said for the proposition that the court has power to remove a guardian if that is necessary to secure, but not alter, the due execution of the trusts, and that other considerations go to discretion rather than jurisdiction.
[4] Blenkinsop v Herbert [2017] WASCA 87; (2017) 51 WAR 264 (Murphy and Mitchel JJA, Beech J) (Blenkinsop).
[5] Blenkinsop [75].
The Court of Appeal referred to numerous decisions of the Isle of Man, Jersey and the Channel Islands, where guardians (also referred to as protectors) of trusts had been removed and/or replaced.[6]
[6] Blenkinsop [84] - [89].
In Blenkinsop, the Court of Appeal held that:
(1)the role of a guardian was defined by the terms of the trust deed;[7]
(2)where the guardian was, on a proper construction of the terms of the trust deed, obliged to act only in the interests of, and for the benefit of, others, the power will be fiduciary in nature;[8]
(3)the guardian's power, as provided for in the trust deed, to consent to the trustee's discretion to appoint capital was personal to the guardian and was not vested in the guardian in a fiduciary capacity. That was because that power, even though not unlimited, may be exercised as the guardian subjectively saw fit and without regard to any fiduciary obligations;[9] and
(4)given that the guardian's powers were personal and not fiduciary in nature, the court declined to remove the guardian.
[7] Blenkinsop [70].
[8] Blenkinsop [97].
[9] Blenkinsop [139].
Having regard to these principles I turn to consider whether, having regard to the terms of the Trust Deed, the roles of the Guardian and Appointor of the Panizza Trust are fiduciary in nature.
Can the court remove Silvana as guardian and appointor of the Panizza Trust?
I am satisfied that, having regard to the terms of the Trust Deed, the roles of the Guardian and Appointor of the Panizza Trust are fiduciary in nature. That is for the following reasons.
Firstly, the Appointor has the power to remove any Trustee and appoint any additional trustee(s) as provided for by cl 22(1) of the Trust Deed. This has the hallmarks of being a fiduciary power that can not be exercised for the Appointor's own benefit.[10] Further, the original Appointor of the Panizza Trust was Domenica. Domenica was a co‑trustee of, but not a beneficiary of, the Panizza Trust.[11] Where the appointor is one of the trustees, but not a beneficiary, of a trust it follows that the appointor owes duties to the beneficiaries of that trust when exercising a power to remove and appoint a trustee.[12]
[10] Mercanti v Mercanti (2016) 50 WAR 495 [321], [397] - [398] (Buss P, Newnes and Murphy JJA); Blenkinsop [97].
[11] In the Schedule to the Trust Deed, Domenica was not included as 'additional members' of the class of General Beneficiaries.
[12] LGSS Pty Ltd v Egan [2002] NSWSC 1171 [113] (Austin J).
Secondly, unlike in Blenkinsop, the powers of the Guardian of the Panizza Trust are not confined to merely consenting to decisions of the Trustees. Rather, the Trust Deed confers active powers on the Guardian of the Panizza Trust in the following manner:
(1)pursuant to cl 10(3) of the Trust Deed, the Trustees shall not exercise a reserved or restricted power except after giving notice to the Guardian in accordance with cl 21;
(2)cl 21(5) of the Trust Deed provides that 14 days prior to the exercise of any reserved or restricted power the Trustees shall serve written notice on the Guardian of their intention to exercise such power setting out the manner in which they propose to exercise such powers;
(3)cl 10(7) of the Trust Deed defines 'reserved powers' and 'restricted powers'. These powers are significant and include the ability to add or remove General Beneficiaries, make appointments of trust capital, and decide who will receive the trust fund at the Vesting Day;
(4)cl 10(5) of the Trust Deed provides that the Guardian may by instrument in writing revocably or irrevocably declare that any of the reserved or restricted powers:
(a)shall cease to be reserved or restricted powers; or
(b)shall be prohibited to the Trustees and after such declaration the Trustees shall not be entitled to exercise the reserved or restricted power(s).
One of the significant powers that may be exercised by the Guardian, pursuant to cl 10(5)(b), read together with cl 10(7)(vii), is the power to make a declaration to prevent the Trustees from revoking a revocable appointment validly made pursuant to cl 4(1) of the Trust Deed. This is attended by fiduciary duties associated with the exercise of that power.
In my view, on its proper construction, the Trust Deed provides for the 14‑day notice period to the Guardian of the proposed decision of the Trustees so as to give the Guardian the opportunity, pursuant to cl 10(5) of the Trust Deed, to deprive the Trustees of the exercise of a reserved or restricted power. This is not a supervisory power, as was the case in Blenkinsop, rather it is an 'active' power to initiate a course of action. The Guardian has the power to change the nature of the Panizza Trust and to significantly restrict and reduce the role and powers of the Trustees. It follows, in my view, that the Guardian's role is to protect the beneficiaries of the Panizza Trust and that the role is therefore fiduciary, rather than personal, in nature.
Although the Trust Deed is silent on the matters that the Guardian or Appointor must consider - if any - when exercising the powers conferred upon them by the Trust Deed, I am of the view that, having regard to the nature of those powers conferred, the Guardian and Appointor must each consider the best interests of the beneficiaries to the exclusion of their own interests. In those circumstances, the court has jurisdiction to remove the Guardian and Appointor if it is necessary to secure the due execution of the Panizza Trust.
I then turn to the question of whether I should remove Silvana as Guardian and Appointor of the Panizza Trust, and if so, who should be appointed in her place.
Should the court remove Silvana as guardian and appointor of the Panizza Trust?
The principles applicable to removal of a guardian and appointor holding a fiduciary role are akin to those applicable to removing a trustee.[13] The Court of Appeal outlined the principles relevant to the court's power to remove a trustee in Cardaci v Cardaci.[14] I incorporate these principles without restating them. In essence, the guiding principle is the welfare of the beneficiaries and the due administration of a trust in their favour.
[13] Blenkinsop [69],[85] - [86].
[14] Cardaci v Cardaci [2023] WASCA 158 [183] - [208] (Buss P, Murphy and Mitchell JJA).
I am of the view that Silvana should be removed as the Guardian and Appointor of the Panizza Trust, because it is necessary to do so to secure, but not alter, the due execution of the Panizza Trust.[15] That is for the following reasons.
[15] Blenkinsop [75]
In Panizza v Clathington, Kenneth Martin J detailed the numerous occasions that Silvana contravened the Injunction by borrowing money in the name of Clathington and depositing those funds in her own personal account.[16] Silvana has previously refused to vacate 15 Bardolph Road, Spearwood - a property owned by the Panizza Trust. Silvana owns her own home and has prevented the Panizza Trust from earning rental income from the Spearwood property.[17] On 10 September 2019, Silvana told Kenneth Martin J that she would not leave the Spearwood property voluntarily.[18]
[16] Panizza v Clathington [92] - [108].
[17] Panizza v Clathington [69].
[18] Panizza v Clathington [79] - [81].
On 7 February 2023, Cologna as Trustee for the Panizza Trust commenced proceedings against Silvana and Antonio claiming an order for possession of the Spearwood property. On 21 September 2023, Archer J (as her Honour then was) granted Cologna's application for summary judgment and ordered Silvana and Antonio to give Cologna possession of the Spearwood property forthwith.[19]
[19] Cologna Investments Pty Ltd as trustee for P. and D. Panizza Family Trust v Caranna [2023] WASC 368.
Cologna only took possession of the Spearwood property upon the execution of a property seizure and delivery order on 1 February 2024.
Having regard to the contemptuous conduct of Silvana in relation to the assets and property of the Panizza Trust, I am satisfied that the court should exercise its power to remove her as Guardian and Appointor of the Panizza Trust. Silvana's conduct means that I can have no confidence in the future administration of the Panizza Trust while she holds the position of Guardian and Appointor.
Appointment of Giovanni as guardian and appointor
By the same reasoning which applies to removal of Silvana as Guardian and Appointor, I am satisfied that the court has the power to appoint a new Guardian and Appointor of the Panizza Trust.[20] There is uncertainty as to whether Giovanni would automatically take up those positions upon the removal of Silvana. Further, the Trustees cannot, amongst other things, vary the terms of the Trust Deed or make an appointment to take effect on the Vesting Day, if there is no Guardian of the Panizza Trust. To avoid any uncertainty and ensure the due administration of the Panizza Trust, I am of the view that Giovanni should be appointed as Guardian and Appointor of the Panizza Trust.
[20] Blenkinsop [85] - [86].
Conclusion and final orders
I make the following orders:
(1)Silvana Caranna be and is hereby removed as the Guardian and Appointor of the trust created by the Trust Deed made on 25 October 1988 between Michael David Babich as Settlor and Pietro Giovanni Panizza and Domenica Maria Panizza as Trustees and known as the P. and D. Panizza Family Trust.
(2)Giovanni Panizza be and is hereby appointed as Guardian and Appointor of the P. and D. Panizza Family Trust.
(3)The second defendant pay the costs of the determination of the preliminary issue referred to in the orders of Whitby J made on 27 March 2025, including costs of the hearing on 27 March 2025, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
20 JUNE 2025
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