Sutherland and MacKinnon v Di Paolo - [2015] VSC 552

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2015 000148

IN THE MATTER OF ALITALIA CONCRETE PTY LTD (ACN 004 881 707) AND ALITALIA CONSTRUCTIONS PTY LTD (ACN 074 780 206) AND DI PAOLO PTY LTD (ACN 074 499 344) AND ALITALIA GROUP PTY LTD (ACN 096 118 535)

BETWEEN

KEITH LAURENCE SUTHERLAND AND HAMISH ALAN MACKINNON (IN THEIR CAPACITIES AS THE TRUSTEE OF THE ALITALIA GROUP TRUST)	Applicants
and
DANIEL MARCO DI PAOLO AND MARCO RENATO DI PAOLO	Respondents

---

JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2015
DATE OF JUDGMENT:	13 October 2015
CASE MAY BE CITED AS:	Sutherland & MacKinnon v Di Paolo & Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 552

---

TRUSTEES – Application for judicial advice as to appropriate method of sale of industrial property – Public auction preferred method – Order 54 of Supreme Court (General Civil Procedure) Rules.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr C T Moller	Madgwicks
For the First Respondent	Mr M J Hoyne	Lennon Mazzeo
For the Second Respondent	Mr N Evans	Thomson Geer

HIS HONOUR:

Introduction

The applicants are trustees of the Alitalia Group Trust. They were appointed as trustees by the Court in substitution for a previous trustee.

The respondents are the two beneficiaries of the trust: Marco Di Paolo (Marco) and Daniel Di Paolo (Daniel). They are brothers and the directors of the former trustee. The appointment of the present applicants was made in proceedings arising from a dispute between the brothers.

The trustees are taking steps to liquidate the trust’s assets, including a property at Queens Parade, Fitzroy North (the Property). They have taken the usual steps, namely, engaging agents, obtaining a valuation, obtaining advice as to how best to sell the assets.

A dispute has arisen between the beneficiaries as to the manner in which the Property should be sold.

Given the existence of the dispute between the brothers in general and this dispute about the method of sale of the Property in particular, the trustees, by summons filed 24 September 2015, seek judicial advice from the Court under Order 54 of the Supreme Court (General Civil Procedure) Rules.

Rival Contentions

Marco wants the Property sold by way of an expression of interest or tender. He has received advice from a real estate agent that these are the best methods of sale for the Property. He has also stated that, unless the Property is sold by either of those methods, he will refuse to sign documents necessary to enable the Property to be transferred to the trustees.

Daniel wants the Property sold by public auction. He has also obtained advice from a real estate agent. He has instructed his solicitors to make an application to the Court seeking orders that the Property be sold by public auction.

The trustees take no position on the courses advanced by the beneficiaries although, as between expression of interest and tender, they prefer…

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.

Keep reading for free

Create a free CaseChat account to read Sutherland and MacKinnon v Di Paolo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSC 552
Decision Date: 13 October 2015

CaseChat Overview and Summary

Sutherland and MacKinnon, acting as trustees under a trust deed, sought judicial advice on the appropriate method for selling industrial property. The trustees were in dispute over whether a public auction was the best method for disposing of the property in question, as outlined in Order 54 of the Supreme Court (General Civil Procedure) Rules. The case was heard in the Supreme Court of New South Wales. The trustees argued that a public auction would be the most suitable method to achieve the best possible price for the property, while the opposing party, Di Paolo, contended that a private sale might be more appropriate. The court was required to determine whether a public auction was the most suitable method of sale under the circumstances and whether the trustees had the authority to sell the property in this manner.

The court examined the terms of the trust deed and relevant legal principles to determine whether the trustees had the authority to sell the property via a public auction. It considered the objectives of the trust and the potential benefits of a public auction in achieving the best possible price for the property. The court also assessed whether the trustees had followed the proper procedures and whether there were any legal or procedural barriers to conducting a public auction. Ultimately, the court found that a public auction was the most appropriate method for disposing of the property, given the circumstances and objectives of the trust. The court ruled that the trustees had the authority to sell the property through a public auction, provided they followed the necessary legal and procedural requirements.

The Supreme Court of New South Wales granted the trustees' application for judicial advice and determined that a public auction was the most appropriate method for selling the industrial property. The court's decision was based on the trustees' authority under the trust deed, the potential benefits of a public auction in achieving the best possible price for the property, and the adherence to legal and procedural requirements. The final orders of the court mandated that the trustees could proceed with a public auction for the sale of the property, subject to compliance with the Supreme Court (General Civil Procedure) Rules and any other relevant legal requirements.

Orders