Re Louis Contini Foundation Trust [2004] NSWSC 881

New South Wales Supreme Court

CITATION : Re Louis Contini Foundation Trust [2004] NSWSC 881 HEARING DATE(S) : 15 September 2004 JUDGMENT DATE : 15 September 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : New trustees appointed. Trustees de son tort not granted relief from liability under section 85 Trustee Act 1925, without prejudice to making a future application. Costs of application from trust assets.

CATCHWORDS : TRUSTS AND TRUSTEES - trustees - appointment of new trustees by court - standing to make application - when appropriate - TRUSTS AND TRUSTEES - trustee de son tort - relief from liability under section 85 Trustee Act 1925 - not available on ex parte application - TRUSTS AND TRUSTEES - appointment of new trustees by court - costs of proceedings LEGISLATION CITED : Trustee Act 1925 Supreme Court Rules 1970 CASES CITED : Macarthur v Cawdor Nominees Pty Ltd [2003] NSWSC 249 Marcella Stamataros - First Applicant PARTIES : Elisa Contini - Second Applicant Gina Contini - Third Applicant FILE NUMBER(S) : SC 5084/04 COUNSEL : M J Cohen - Applicants SOLICITORS : D La Rosa Isso & Co - Applicants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

WEDNESDAY 15 SEPTEMBER 2004

5084/04 RE LOUIS CONTINI FOUNDATION TRUST; APPLICATION OF MARCELLA STAMATAROS & ORS JUDGMENT - Ex Tempore 1 HIS HONOUR: This is an application for an appointment of a new trustee to the Louis Contini Foundation Trust. That trust was established by deed made 22 May 1979. The settlor of the deed was Mr Dominic Izzo and the sole trustee was Mr Louis Contini. The potential objects of the power of appointment contained in the discretionary trust were, as to the capital and income, members of the extended family of Mr Louis Contini. The taker of capital in default of appointment was his daughter, Marcella Stamataros. 2 The trust deed contained a power of amendment, and by his will Mr Contini gave a direction that the Louis Contini Foundation Trust: "be construed so as to include all of my children, namely, Marcella Stamataros, Elisa Contini and Gina Contini notwithstanding that presently only Marcella Stamataros is referred to therein."