Re Louis Contini Foundation Trust

[2004] NSWSC 881

CITATION:	Re Louis Contini Foundation Trust [2004] NSWSC 881
HEARING DATE(S):	15 September 2004
JUDGMENT DATE:	15 September 2004
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	New trustees appointed. Trustees de son tort not granted relief from liability under section 85 Trustee Act 1925, without prejudice to making a future application. Costs of application from trust assets.
CATCHWORDS:	TRUSTS AND TRUSTEES - trustees - appointment of new trustees by court - standing to make application - when appropriate - TRUSTS AND TRUSTEES - trustee de son tort - relief from liability under section 85 Trustee Act 1925 - not available on ex parte application - TRUSTS AND TRUSTEES - appointment of new trustees by court - costs of proceedings
LEGISLATION CITED:	Trustee Act 1925 Supreme Court Rules 1970
CASES CITED:	Macarthur v Cawdor Nominees Pty Ltd [2003] NSWSC 249
PARTIES :	Marcella Stamataros - First Applicant Elisa Contini - Second Applicant Gina Contini - Third Applicant
FILE NUMBER(S):	SC 5084/04
COUNSEL:	M J Cohen - Applicants
SOLICITORS:	D La Rosa Isso & Co - Applicants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

WEDNESDAY 15 SEPTEMBER 2004

5084/04 RE LOUIS CONTINI FOUNDATION TRUST; APPLICATION OF MARCELLA STAMATAROS & ORS

JUDGMENT - Ex Tempore

1 HIS HONOUR: This is an application for an appointment of a new trustee to the Louis Contini Foundation Trust. That trust was established by deed made 22 May 1979. The settlor of the deed was Mr Dominic Izzo and the sole trustee was Mr Louis Contini. The potential objects of the power of appointment contained in the discretionary trust were, as to the capital and income, members of the extended family of Mr Louis Contini. The taker of capital in default of appointment was his daughter, Marcella Stamataros.

2 The trust deed contained a power of amendment, and by his will Mr Contini gave a direction that the Louis Contini Foundation Trust:

“be construed so as to include all of my children, namely, Marcella Stamataros, Elisa Contini and Gina Contini notwithstanding that presently only Marcella Stamataros is referred to therein.”

That provision arguably has the effect of making all three of the daughters there named takers of capital in default of appointment. It is not necessary to decide whether the clause actually has that effect. I mention it only because all three daughters were plaintiffs in the proceedings before me.

3 Section 92 of the Trustee Act 1925 enables an order for the appointment of a new trustee to be made on application of any person interested in the property. While there are numerous other people, besides the three plaintiffs, who are potential objects of the discretionary trust, it is the three plaintiffs who, between them, are or include the people who have, or person who has, a presently vested interest in the trust property, though subject to divesting: see Macarthur v Cawdor Nominees Pty Ltd [2003] NSWSC 249. Thus the plaintiffs have, between them, standing to bring the present application.

4 There was provision in the trust deed for Louis Contini during his lifetime to appoint and reappoint and remove trustees. Unfortunately, he died without arranging a substitute trustee. His executor, Mr Domonic Izzo, has likewise died without appointing a replacement trustee.

5 I am satisfied of the various matters set out in Part 70, rule 8 of the Supreme Court Rules 1970. I will, therefore, make orders appointing a new trustee. I make orders in accordance with paragraphs 3 and 4 of the summons in this matter.

6 The summons also claims an order relieving the plaintiffs, under section 85 of the Trustee Act 1925, of personal liability arising from their having acted as de facto trustees of the trust in the period since their father’s death. I am not satisfied that it is appropriate to make that order on an ex parte application such as the present one. Further, the evidence before me on the present application is extremely thin. I, therefore, decline to make that order, but state that my failure to do so is without prejudice to any future application in similar terms which the plaintiffs might bring.

7 The proceedings are ones which, given that there was no one other than the Court who could have appointed a trustee, were necessary ones for the administration of the trust. It is, therefore, appropriate that the costs of the proceeding be paid from the trust assets. I order that the costs of the plaintiffs be paid out of the Louis Contini Foundation Trust, upon the basis that all expenses reasonably incurred by them are recoverable. These orders may be entered forthwith.

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Last Modified: 09/23/2004