Supreme Court New South Wales Medium Neutral Citation: Re Guido Belmonte & Ors [2014] NSWSC 455 Hearing dates: Wednesday, 26 March 2014 Decision date: 26 March 2014 Jurisdiction: Equity Division Before: White J Decision: 1. Order, pursuant to s 63 of the Trustee Act 1925 that the plaintiffs would be justified in selling the land at 64 Hezlett Road, Kellyville and in distributing the net proceeds of sale of the land after payment of debts, testamentary and administration expenses, including rates and land taxes, to those entitled to the residuary estate of the late Domenico Belmonte, formerly of 64 Hezlett Road, Kellyville. 2. Order that the plaintiffs are entitled to recoup the costs of these proceedings on the indemnity basis out of the trust estate. Catchwords: WILLS, PROBATE AND ADMINISTRATION - whether the executors and trustees are justified in selling a property and applying the net proceeds of sale to residuary beneficiaries under the will - whether occupation of the property was a right to a life estate or a personal right of residence - whether the current occupant could satisfy payment of rates and land tax liabilities - plaintiffs justified in selling the relevant property - Trustee Act 1925 (NSW) s 63 Legislation Cited: Trustee Act 1925 Category: Principal judgment Parties: Guido Belmonte (1st Plaintiff) Octavia Belmonte (2nd Plaintiff) Maria Caruso (3rd Plaintiff) Representation: Counsel: R W Tregenza (Plaintiffs) Solicitors: Ian C McGillivray (Plaintiffs) File Number(s): 2013/381595 Judgment 1HIS HONOUR: This matter came before me in the duty list in December last year. The plaintiffs are the executors and trustees of the will of the late Domenico Belmonte, who died on 3 July 1989. They seek judicial advice essentially as to whether they would be justified in selling a property in Hezlett Road, Kellyville that had been owned by the deceased and, if so, whether they would be justified in applying the net proceeds of sale to the residuary beneficiaries under the will. 2Clause 3 of the will directs that the principal residence of the deceased in Hezlett Road, Kellyville not be sold during the lifetime of the deceased's daughter Maria and that she be permitted to reside therein, and that all expenses for maintenance of the residence, including rates and insurance, be paid by the trustees. 3The will provided that the trustee should have power to sell or subdivide the land and that the proceeds of such sale should fall into and form part of the deceased's residuary estate. The will provided that, on the death of Maria, the residence or any part of it remaining unsold should fall into and form part of the residuary estate. 4The beneficiary under that clause, Maria Belmonte, is now aged 81. She lives in the care of her sister in a different property. There is no prospect of her resuming residence in the property at Hezlett Road, Kellyville. 5The question arose as to whether or not the trustees could sell the land in order to pay rates, if such rates were only of a few thousand dollars. The trustees have power to sell the property in order to meet all proper liabilities incurred in administration of the trust, which would include the rates for which they are personally liable. 6I agree with the opinion of counsel retained for the trustees that the right given to Maria Belmonte is not a life estate in the property, but a personal right of residence. That right of residence would be extinguished on the sale of the property. 7At the hearing in December 2013 I was not satisfied on the material provided that Maria Belmonte might not be able to preserve her right of residence in the property by herself tendering payment of the rates. In that event, the question would arise whether the trustees would be acting properly in selling the property and thereby extinguishing her right of residence. 8The matter was stood over and stood over again. In the meantime, the trustees have received a notice of assessment of land tax in the sum of more than $30,000. There is now material that establishes that Maria Belmonte does not have the funds with which to pay the rates or the land tax. It is clear that the plaintiffs are entitled to sell the land in order to obtain the funds to meet those liabilities. 9For these reasons, I make the following orders: 1. I order, pursuant to s 63 of the Trustee Act 1925 that the plaintiffs would be justified in selling the land at 64 Hezlett Road, Kellyville and in distributing the net proceeds of sale of the land after payment of debts, testamentary and administration expenses, including rates and land taxes, to those entitled to the residuary estate of the late Domenico Belmonte, formerly of 64 Hezlett Road, Kellyville. 2. I order that the plaintiffs are entitled to recoup the costs of these proceedings on the indemnity basis out of the trust estate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2014