JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 November 2019
CASE MAY BE CITED AS:	Versaci v Rechichi
MEDIUM NEUTRAL CITATION:	[2019] VSC 747 – First revision 11 December 2019

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TRUSTS — Where two properties registered in names of parents — Where children claim beneficial interests in sale proceeds of one property — Whether express trust created — Whether property held on trust for donees of trust — Purpose of trust — Whether purpose totally failed.

STAMPS ACT 1958 — Where deed of settlement not stamped on instructions of settlors — Whether deed of settlement valid — Whether stamp duty due and payable — Stamps Act 1958 (Vic) ss 10, 17.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Pascoe	Suzanne Lyttleton Lawyers
For the First to Third Defendants	Mr WHC Forrester	Randles Cooper & Co
For the Fourth to Sixth Defendants	Comito Iacovino & Co

HER HONOUR:

Introduction

By originating motion filed 16 November 2018, Maria Versaci (‘Maria’), by her administrator, seeks answers to questions concerning the distribution of the sale proceeds of a property known as 140A Miller Street, North Fitzroy (‘140A Miller Street’).

Maria is now aged 83. On 10 March 2017, Ms Lyttleton was appointed her administrator by the Victorian Civil and Administrative Tribunal.

Maria and her husband, Antonino Versaci (‘Antonino’) had seven children, six of whom are living: Gina born 21 July 1959, Rocco born 24 March 1963, Domenica born 9 May 1965, Francesca born 18 May 1967, Caterina and Annunziato born 21 December 1969 (‘the children’). Another child, Biagio, born 24 June 1961, died on 4 May 1988.

Maria and Antonino were the joint registered proprietors of 140A Miller Street. On Antonino’s death on 28 October 2010, his jointly owned property passed to Maria by survivorship. Further, by his will dated 1 February 2005, Antonino left his whole estate to Maria. On 3 November 2017, Maria was registered as the sole proprietor of 140A Miller Street, pursuant to a survivorship application. On 14 October 2017, 140A Miller Street was sold with settlement taking place on 14 November 2017.

Affidavits were filed by Gina, Rocco, Domenica, Francesca, Caterina and Annunziato. Of these affidavits, Gina and Annunziato provided the substantive evidence. The affidavits of the remaining children cross-referenced certain paragraphs in the two principal affidavits, in substance either agreeing with or not knowing about certain matters.

An affidavit by Giuseppe Santomartino, accountant, was also filed. He referred to a meeting in October 2010 with Maria and the children, save for Rocco, where he advised…

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 Versaci v Rechichi

Details

AGLC: Versaci v Rechichi [2019] VSC 747
Case: [2019] VSC 747
Decision Date: 15 November 2019

CaseChat Overview and Summary

The case of Versaci v Rechichi involves a dispute over the beneficial interests in the proceeds of the sale of a property registered in the names of the parents. The children of the parents claimed a beneficial interest in the proceeds of the sale, asserting that an express trust had been created. The court was required to determine whether the property was held on trust for the donees of the trust and, if so, whether the trust purpose had failed. The court also had to consider whether the deed of settlement was valid despite not being stamped as per the instructions of the settlors, and whether stamp duty was due and payable under the Stamps Act 1958.

The legal issues before the court were whether an express trust had been created, and if so, whether the trust purpose had failed. The court had to examine the terms of the deed of settlement and the intentions of the settlors to determine if a trust was indeed created. Additionally, the court needed to decide if the failure of the trust purpose, which was to ensure that the children would benefit from the property, rendered the trust ineffective. The court also needed to address whether the deed of settlement was valid despite the lack of stamping, and whether any stamp duty was payable under the Stamps Act 1958.

The court found that an express trust had been created, and the property was held on trust for the donees, which were the children. The purpose of the trust was not totally failed as the children still had a beneficial interest in the property. However, the deed of settlement was found to be invalid due to the failure to stamp it as instructed by the settlors. The court held that stamp duty was due and payable under the Stamps Act 1958. The court's reasoning was based on the clear intentions of the settlors as expressed in the deed of settlement, and the statutory requirements for the validity of such deeds.

The final orders of the court were that the property was held on trust for the children, but the deed of settlement was invalid due to the non-compliance with stamping requirements. Stamp duty was payable under the relevant provisions of the Stamps Act 1958. The children were entitled to their beneficial interests in the property, subject to the payment of the outstanding stamp duty.

Orders