JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SCAFFIDI -v- MONTEVENTO HOLDINGS PTY LTD [2011] WASCA 146
CORAM: BUSS JA
MURPHY JA
HALL J
HEARD: 12 APRIL 2011
DELIVERED : 7 JULY 2011
FILE NO/S: CACV 70 of 2010
BETWEEN: GIUSEPPE DIEGO SCAFFIDI
Appellant
AND
MONTEVENTO HOLDINGS PTY LTD
First RespondentEUGENIO SCAFFIDI
Second RespondentMARIA SCAFFIDI by her guardian ad litem THE PUBLIC TRUSTEE
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :MONTEVENTO HOLDINGS PTY LTD -v- SCAFFIDI HOLDINGS PTY LTD [No 2] [2010] WASC 180
File No :CIV 1522 of 2010
Catchwords:
Trusts and trustees - Construction of power of appointment in trust deed - Whether corporate entity eligible for appointment as a trustee - Where sole director and shareholder of corporate entity is appointor and beneficiary - Power of court to remove and appoint new trustee
Legislation:
Death Duty Assessment Act 1973 (WA), s 10(1), s 10(2)(i)
Estate Duty Assessment Act 1914 (Cth), s 8(1), s 8(3)
First Corporate Law Simplification Act 1995 (Cth)
Stamp Duties Act 1920 (NSW), s 100, s 101, s 102(2)(j)
Trustees Act 1962 (WA), s 77
Result:
Appeal allowed
Notice of contention dismissed
Category: A
Representation:
Counsel:
Appellant: Mr C L Zelestis QC
First Respondent : Ms K A Vernon
Second Respondent : Ms K A Vernon
Third Respondent : Mr B W Ashdown
Solicitors:
Appellant: Oldfield Legal
First Respondent : Butcher Paull & Calder
Second Respondent : Butcher Paull & Calder
Third Respondent : Public Trustee
Case(s) referred to in judgment(s):
Armitage v Nurse [1998] Ch 241
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; (2006) 153 FCR 509
CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53; (2005) 224 CLR 98
Duke of Portland v Topham (1864) 11 HLC 32
Elovalis v Elovalis [2008] WASCA 141
Elovalis v Elovalis [2008] WASCA 141(S)
Esso Australia Ltd v Australian Petroleum Agents' and Distributors' Association (1999) 3 VR 642
Global Funds Management (NSW) Ltd v Burns Philp Trustee Co Ltd (1990) 3 ACSR 183
Hobkirk v Ritchie (1933) 29 Tas LR 14
In re Brockbank [1948] Ch 206
In re Christina Brown (1921) 22 SR (NSW) 90
In re Gadd (1883) 23 Ch D 134
In re John Gibbon's Trusts (1882) 30 WR 287
In re Newen (1894) 2 Ch 297
In re Norris (1833) 27 Ch D 333
In re Power's Settlement Trusts [1951] Ch 1074
In re Skeats' Settlement (1889) 42 Ch D 522
In re Spencer's Settled Estates (1902) 1 Ch 75
In re Tunstall [1921] VLR 559
In the Marriage of Davidson (No 2) [1991] FLC 92‑197; (1990) 101 FLR 373
In the Marriage of Goodwin [1990] FLC 92‑192; 1990) 101 FLR 386
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- Case
- [2011] WASCA 146
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of the trust deed and the applicable legal principles governing the appointment of trustees. It was necessary to determine if the power of appointment in the trust deed allowed for the appointment of a corporate entity and, if so, whether this was permissible under the circumstances. The court also considered the potential implications of such an appointment on the validity of the trust and the enforceability of the trustee's duties.
The court held that the trust deed did not explicitly prohibit the appointment of a corporate entity as a trustee. However, the court found that the appointment of Montevento Holdings Pty Ltd was not valid because it resulted in a conflict of interest, with the sole director and shareholder being both the appointor and beneficiary. The court exercised its inherent jurisdiction to remove Montevento Holdings Pty Ltd as a trustee and appoint a new, independent trustee. The court concluded that this was necessary to ensure the proper administration of the trust and to prevent any potential abuse of the power of appointment.
The court ordered that Montevento Holdings Pty Ltd be removed as a trustee and that a new, independent trustee be appointed. The new trustee was tasked with managing the trust in accordance with the terms of the trust deed and the court's directions. The court also directed that the new trustee take all necessary steps to ensure the trust was administered in the best interests of the beneficiaries.
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