Trani v Trani (No 3) - [2020] VSC 332

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S CI 2015 05222

PATRIZIA TRANI	Plaintiff
v
MARCO TRANI	First Defendant
LUCIANO TRANI	Second Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF JUDGMENT:	15 June 2020
CASE MAY BE CITED AS:	Trani v Trani (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 332

---

PRACTICE AND PROCEDURE– Equitable set off – Where mutual judgment debts owing between the plaintiff and defendants - Where each party has an entitlement to costs against the other party arising from different proceedings – Whether the Court has inherent jurisdiction to set-off a judgment debt against a judgment in favour of the judgment debtor – Sivritas v Sivritas (No 2) [2008] VSC 580 referred to

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	The Law Professionals
For the First and Second Defendants	Mr A Panna QC	Robert James Lawyers

HER HONOUR:

Following a trial in December 2017, and as a result of orders made by me in this proceeding on 25 October 2018 (‘October 2018 orders’), the defendants (‘Marco and Luciano’) owe the plaintiff (‘Patrizia’) the sum of $289,101.60, plus interest (‘judgment sum’). However, I ordered that $67,736.00 of the judgment sum (‘quarantined fund’) be retained in the trust account of the solicitors for Marco and Luciano, pending the resolution of possible claims by Marco and Luciano to some or all of the quarantined fund.

Patrizia’s entitlement to the judgment sum arose out of my finding, in a decision delivered on 21 June 2018 (‘primary reasons’),[1] that Marco and Luciano had caused the trustee of the Trani family trust, of which each of Marco, Luciano, and Patrizia (who are siblings) were beneficiaries, to act in bad faith and/or failed to properly execute its duties as trustee in connection with the winding up of the Trani family trust in July 2014. The consequence of this finding, and the operation of the provisions of the relevant trust deed, meant that each of Marco, Luciano and Patrizia were entitled to share equally in the assets of the trust.
[1][2018] VSC 274.

Following the delivery of the primary reasons, a further hearing was held on 11 September 2018 (‘second hearing’) to deal with a number of issues which arose as a consequence of the findings made in the primary reasons, including, among other things:

(a) the amount actually payable to Patrizia by Marco and Luciano;

(b) the date from which interest should run;

(c) the question of costs; and

(d) the unpaid entitlements issue, which concerned the question, which was not the subject of any pleadings, but arose during the course of the evidence at trial, of whether Marco and Luciano were entitled to be paid the income distributed to them in the accounts of the trust over the lifetime of the trust, but not actually paid to them.

Immediately following the second hearing, the solicitors for Marco and…

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 Trani v Trani (No 3)

Details

AGLC: Trani v Trani (No 3) [2020] VSC 332
Case: [2020] VSC 332
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the matter of Trani v Trani (No 3), the parties involved were a plaintiff and two defendants. The dispute centred around the issue of equitable set-off in relation to mutual judgment debts that were owed between the parties. This case was heard in the Supreme Court of Victoria. The court was tasked with determining whether it had the inherent jurisdiction to set off a judgment debt against a judgment in favour of the judgment debtor, in circumstances where each party had an entitlement to costs against the other party arising from different proceedings.

The legal issues that the court had to decide were whether the court had the authority to exercise its inherent jurisdiction to set off the judgment debts against each other, and if so, what the appropriate application of that jurisdiction would be. The court considered the case of Sivritas v Sivritas (No 2) [2008] VSC 580, which had previously addressed the issue of equitable set-off in a similar context. The court had to determine whether the principles set out in that case were applicable to the present matter.

The court found that it did have the inherent jurisdiction to set off the judgment debts against each other, in accordance with the principles established in Sivritas v Sivritas (No 2). The court determined that the set-off should be applied in a manner that was equitable and just, taking into account the specific circumstances of the case. The court found that the plaintiff was entitled to a set-off of the amounts owed by the defendants, less the costs that were owed by the plaintiff to the defendants. The court ordered that the judgment debts be set off against each other, with the resulting amount being paid by the party who was liable for the net amount.

Orders