| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2018 02610
| GIUSEPPE RODOLICO | Plaintiff |
| v | |
| BENEDETTO RODOLICO (who is sued in his capacity as Executor of the estate of Concetta Adolorata Rodolico (also known as Addolorata Rodolico and Concetta Rodolico, deceased)) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2020 |
DATE OF JUDGMENT: | 2 September 2020 |
CASE MAY BE CITED AS: | Rodolico v Rodolico |
MEDIUM NEUTRAL CITATION: | [2020] VSC 535 |
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CONTRACTS – Application by the defendant to set aside settlement agreement on the basis of unconscionable conduct and/or duress – Whether the defendant suffered from a special disadvantage – Whether absence of legal representation or advice is sufficient to give rise to a special disadvantage – Whether the plaintiff took unconscientious advantage of the defendant’s vulnerability – Whether the settlement agreement was ‘fair just and reasonable’ – Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 referred to – Whether a threat to bring a civil proceeding or an application to bring a civil proceeding can amount to illegitimate pressure – McKay v National Australia Bank [1996] 4 VR 677 referred to – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr RC Wells | Maddens Lawyers |
| For the Defendant | Mr PW Lithgow | Zenith Lawyers and Consultants |
HER HONOUR:
Introduction and background
The applications before me concern the enforceability of a settlement agreement (‘Terms of Settlement’) with respect to a claim by the plaintiff seeking further provision under Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’). In this proceeding, which was issued on 5 December 2018, the plaintiff, Mr Giuseppe Rodolico (‘Joe’) sued the defendant, Mr Benedetto Rodolico (‘Ben’),[1] who was the executor and sole beneficiary of the estate of their late mother, Concetta Rodolico (‘deceased’).[2] The deceased died on 28 September 2016,[3] after a long illness, during which Ben was her carer. The size of the deceased’s estate was modest in contemporary terms, being valued in the inventory of assets and liabilities accompanying the grant of probate at approximately $708,000. The main asset of the estate is the deceased’s family home in Ferntree Gully (‘Ferntree Gully property’), in which Ben lived with his mother in the years before her death, and where Ben continues to live.
[1]In order to distinguish between the parties, I will use their (Anglicised) first names in these reasons. No disrespect is intended. I refer to the parties’ cousin, Mr Benedetto (Ben) Spina, as ‘Mr Spina’, to avoid confusion between him and Ben.
[2]The deceased was actually Joe’s step-mother, his biological mother having died in childbirth in 1955.
[3]Probate of the deceased’s will dated 23 January 2007 was granted on 26 June 2018.
Ben claims that the relationship between Ben and the deceased on one hand, and Joe on the other hand, was strained at best for many years, and Joe and Ben have been estranged following the death of the deceased. It is not…
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- AGLC
- Rodolico v Rodolico [2020] VSC 535
- Case
- [2020] VSC 535
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the defendant suffered from a special disadvantage, whether the absence of legal representation or advice is sufficient to give rise to a special disadvantage, and whether the plaintiff took unconscientious advantage of the defendant's vulnerability. The court was also required to determine whether the settlement agreement was 'fair, just and reasonable', and whether a threat to bring a civil proceeding or an application to bring a civil proceeding can amount to illegitimate pressure.
The court found that the defendant did not suffer from a special disadvantage, and that the absence of legal representation or advice is not sufficient to give rise to a special disadvantage. The court also found that the plaintiff did not take unconscientious advantage of the defendant's vulnerability, and that the settlement agreement was fair, just and reasonable. The court referred to Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 and McKay v National Australia Bank [1996] 4 VR 677 in its reasoning. The application to set aside the settlement agreement was dismissed.
The court made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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