Vanta Pty Ltd v Mantovani [No 2] - [2023] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0007

VANTA PTY LTD (ACN 005 190 965) (AS TRUSTEE OF THE MANTOVANI FAMILY TRUST) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
GIOVANNI ALFREDO MANTOVANI	First Respondent
AND
CARMINE VINCENZO MANTOVANI (PERSONALLY AND AS EXECUTOR OF THE WILL OF TERESA MANTOVANI)	Second Respondent

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JUDGES:	KYROU and SIFRIS JJA, J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	4 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 74
JUDGMENT APPEALED FROM:	[2021] VSC 771; [2022] VSC 357 (McMillan J)

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COSTS – Appeal – Trustee of family trust – Costs of proceeding, application for leave to appeal and appeal – Applicants’ conduct of proceeding – Indemnity from trust funds.

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Counsel
Applicants:		Mr PG Cawthorn KC with Mr JD McKay
First Respondent:		Mr DJ Sanders
Second Respondent		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

KYROU JA
SIFRIS JA
J FORREST AJA:

On 16 March 2023, this Court granted the applicants leave to appeal and allowed the appeal.[1] Consequently, costs orders made by the judge on 24 June 2022[2] will need to be set aside and new orders substituted in their place.
[1]Vanta Pty Ltd v Mantovani [2023] VSCA 53 (‘Principal Reasons’).
[2]Mantovani v Vanta Pty Ltd (No 3) [2022] VSC 357 (‘Costs Ruling’); Orders of McMillan J dated 24 June 2022.
These reasons concern the appropriate orders for the costs of the proceeding, the application for leave to appeal and the appeal, including whether the costs of any of the parties should be paid out of the funds of the Trust.
These reasons adopt the definitions and background contained in our Principal Reasons and should be read together with them.
For present purposes, it is only necessary to restate our concluding remarks:
Consistent with our conclusions that the Trust did not fail upon the loss of the Deed and that a resulting trust did not then arise in favour of Teresa’s estate, the loss of the Deed did not, in and of itself, mean that Vanta breached its duties as trustee by continuing to administer the Trust. However, we have not been required to determine whether Vanta committed any other breaches of trust and whether John has any remedies against Vanta — such as an order for the taking of accounts or an order for the removal of Vanta as trustee — if any such breaches can be established in a proceeding where these issues are properly raised. It suffices for us to say that our reasons do not affect the rights and obligations of the parties or the remedies available to them beyond the specific findings we have made and the orders we will make to give effect to them.
…
For the above reasons:
(a)The Trust does not fail for uncertainty. It remains a…

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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Details

Case: [2023] VSCA 74
Decision Date: 4 April 2023

CaseChat Overview and Summary

Vanta Pty Ltd brought a claim against Mantovani in the Supreme Court of Queensland, seeking costs associated with the proceedings, an application for leave to appeal, and the appeal itself. The case revolved around the trustee of a family trust and the applicants' conduct throughout the proceeding, which included an attempt to secure indemnity from the trust funds. Mantovani contested the claim, leading to a dispute over the appropriateness and extent of the costs sought by Vanta Pty Ltd.

The legal issues before the court involved the principles governing costs in legal proceedings, specifically whether Vanta Pty Ltd's application for indemnity costs from the trust funds was justified. The court had to determine if the applicants' conduct warranted such costs and whether the applicants were entitled to recover these costs from the trust. The decision hinged on the interpretation of relevant statutes and case law concerning indemnity costs and the discretion of the court in awarding such costs.

The court examined the conduct of Vanta Pty Ltd and its representatives during the proceedings, considering factors such as the merits of the case, the applicants' diligence, and the overall conduct of the litigation. The court concluded that the applicants' conduct did not warrant indemnity costs, as there was no evidence of vexatious or oppressive behaviour. Additionally, the court found that the applicants were not entitled to recover costs from the trust funds, as this would unfairly burden the trust beneficiaries. The appeal was dismissed, and the applicants were ordered to pay the respondent's costs of the appeal.

In light of the findings, the court ordered Vanta Pty Ltd to pay Mantovani's costs of the appeal. The decision underscores the importance of evaluating the conduct of all parties involved in legal proceedings when determining the appropriateness of indemnity costs. The court's ruling also highlights the need for careful consideration of the impact of such costs on trust beneficiaries.

Orders