Rodolico v Rodolico - [2020] VSC 535

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…

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 Rodolico v Rodolico

Details

AGLC: Rodolico v Rodolico [2020] VSC 535
Case: [2020] VSC 535
Decision Date: 2 September 2020

CaseChat Overview and Summary

In this case, the defendant sought to set aside a settlement agreement on the grounds of unconscionable conduct and/or duress. The parties involved were the plaintiff and the defendant. The dispute arose out of a settlement agreement reached between the parties, which the defendant now sought to have set aside. The matter was heard in the Supreme Court.

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