Italiano v Italiano [2020] NSWSC 404

Supreme Court New South Wales

Medium Neutral Citation: Italiano v Italiano [2020] NSWSC 404 Hearing dates: 3 April 2020 Decision date: 03 April 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that the executor be advised that, if the executor is satisfied, acting in good faith, as to the sufficiency of the factual allegations that have been made to support the claim by Stefano Italiano in the statement of claim filed 15 January 2020 (namely, as to the alleged oral agreement between Stefano Italiano and the deceased entered into prior to the execution of the transfer of the strip of land in question) then pursuant s 49(2) of the Trustee Act 1925 (NSW) the trustee has the power to allow that claim. 2. Order that the executor be advised that, if the executor is satisfied that the settlement commenced by Stefano Italiano on the terms identified in the statement of claim is in the interests of the estate, the executor would be justified in entering into that settlement. Catchwords: SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Trustee's ability to allow claim or to compromise proceeding — Legislation Cited: Trustee Act 1925 (NSW), ss 49(1), 49(2), 63 Cases Cited: Allen v Snyder [1977] 2 NSWLR 685 Australian Reward Investment Alliance v Superannuation Complaints Tribunal [2008] 173 FCR 335; [2008] FCA 1548 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Dunphy v Russell [2018] NSWSC 721 Grain Technology Australia Ltd v Rosewood Research Pty Ltd (No 2) [2019] NSWSC 1744 Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62; [2015] HCA 6 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Muschinski v Dodds (1985) 160 CLR 583 Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221; [1987] HCA 5 Re Earl of Strafford [1980] Ch 28; [1979] 1 All ER 513 Re Estate Late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844 Re Ridsel [1947] Ch 597; 2 All ER 312 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts (8th ed, 2016, LexisNexis) Category: Principal judgment Parties: Stefano Italiano (Plaintiff) Alfonso Italiano (Defendant) Representation: Counsel: A Joseph (Plaintiff) R Tregenza (Defendant)