Napoli v Napoli and Wood as executors and trustees for the estate of the late Mario Robert Napoli [2023] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: Napoli v Napoli and Wood as executors and trustees for the estate of the late Mario Robert Napoli [2023] NSWSC 606 Hearing dates: On the papers Decision date: 07 June 2023 Jurisdiction: Equity - Real Property List Before: Peden J Decision: (1) Declare the whole of the property comprised in folio identifier 53/239414 in Newell Road, MacMasters Beach (the Property) was legally and beneficially held by Mario Robert Napoli from the time of its purchase on 17 October 1979 to 16 July 2020. (2) Declare that Joan Napoli at no time has had any interest, legal or equitable, in the Property. (3) No order as to costs. Catchwords: EQUITY — Trusts and trustees — Declaration of trust — Construction of a will — Where executrices sought declarations — Whether clause in a will created an express trust — Where clause claimed the deceased held property on trust for deceased's mother — Where deceased's mother a possible beneficiary under a vendor purchaser constructive trust — Where no evidence of any uncompleted sale contract — Where the mother in any event disclaimed the beneficial interest — Where the only contradictor would be the deceased's former wife — Where the deceased's former wife consents to the declarations sought Legislation Cited: Conveyancing Act 1919 (NSW) ss 23C(1)(a), 54A Succession Act 2006 (NSW) s 32 Cases Cited: CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999 Commissioner of Taxation v Ramsden [2005] FCAFC 39 Farrelly v Phillips (2017) 128 SASR 502 Federal Commissioner of Taxation v Cornell (1946) 73 CLR 394 Harpur v Levy (2007) 16 VR 587 King v Perpetual Trustee Co Ltd (1955) 94 CLR 70 Pascoe v Boensch [2008] FCAFC 147 Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2022] NSWSC 144 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 Texts Cited: H A J Ford and W A Lee in The Law of Trusts (4th ed, loose-leaf, Thomson Reuters) P W Young, Declaratory Orders (2nd ed, 1984, Butterworths) Category: Principal judgment Parties: David Robert Raymond Napoli (First Plaintiff) Anna Nicole Napoli (Second Plaintiff) Michael Luke Napoli (Third Plaintiff) Joan Mary Napoli and Carole Wood as executors and trustees of the Estate of the Late Mario Robert Napoli (First Defendant) Joan Napoli (Second Defendant) Representation: Solicitors: William James Lawyers (Plaintiffs) Robert Napoli & Co (Defendants) File Number(s): 2023/45438 Publication restriction: Nil