TRUSTS – Discretionary trust – Original and copies of trust deed lost – Schedule to trust deed available – Whether sufficient proof of essential terms of trust deed – Whether trust fails for lack of certainty – Whether resulting trust arises on failure of express trust – Whether directions should be given for administration of trust – Whether taking of accounts should be ordered – Trust remains valid and subsists – Leave to appeal granted – Appeal allowed.
No appearance – Form 64E filed (Notice of intention not to respond or contest)
Solicitors
Applicants:
SMR Legal
First Respondent:
Cornwalls
Second Respondent
Cassidys Morrison & Teare
TABLE OF CONTENTS
Introduction
Factual background
Procedural history
The Trial
The judge’s reasons
Issues on the appeal
Proposed ground 1: Should the Trust fail for uncertainty?
Was it necessary for there to be clear and convincing proof of the terms of the Deed?
Should the Trust fail for lack of certainty?
Proposed ground 2: Should a resulting trust arise due to the loss of the Deed?
Proposed ground 3: Should there be a taking of accounts?
Conclusion and disposition of the appeal
KYROU JA SIFRIS JA J FORREST AJA:
Introduction
The parties to this application for leave to appeal are the adult sons of Vincenzo Mantovani (‘Vincenzo’) and Teresa Mantovani (‘Teresa’), who are now deceased. Two of the sons, Nicola (‘Nic’) and Salvatore (‘Rocky’), are directors of Vanta Pty Ltd (‘Vanta’). Vanta is the trustee of the Mantovani Family Trust (‘Trust’). Vanta, Nic and Rocky are the applicants for leave to appeal.
Giovanni (‘John’), Nic and Rocky’s brother, is neither a shareholder nor a director of Vanta. He is the first respondent to the application for leave to appeal. The remaining brother…
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.
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AGLC
Vanta Pty Ltd v Mantovani [2023] VSCA 53
Case
[2023] VSCA 53
Decision Date
CaseChat Overview and Summary
Vanta Pty Ltd, a discretionary trust, sought clarification and direction regarding its administration, as the original and copies of its trust deed were lost, but a schedule to the trust deed was available. The Supreme Court was asked to determine whether the available schedule provided sufficient proof of the essential terms of the trust deed, whether the trust failed for lack of certainty, and whether a resulting trust should arise on the failure of the express trust. The court was also asked to consider whether directions should be given for the administration of the trust and whether an order for taking of accounts should be made.
The court examined the requirements for proof of the terms of a trust deed, considering whether the schedule to the trust deed was sufficient to establish the essential terms of the trust. The court also assessed whether the trust had failed for lack of certainty and whether a resulting trust should arise on the failure of the express trust. Furthermore, the court considered whether directions should be given for the administration of the trust and whether an order for taking of accounts should be made.
The court held that the schedule to the trust deed provided sufficient proof of the essential terms of the trust deed, and the trust did not fail for lack of certainty. The court determined that a resulting trust did not arise on the failure of the express trust. The court also decided that directions should be given for the administration of the trust and that an order for taking of accounts should be made. The court held that the trust remained valid and subsisted, and leave to appeal was granted. The appeal was subsequently allowed.
The court ordered that the trust remain valid and subsist, that directions be given for the administration of the trust, and that an order for taking of accounts be made. The leave to appeal was granted, and the appeal was allowed.