Cappelleri v Cappelleri

COMPANIES - Directorships - Where plaintiffs seek declaratory relief in respect of historical changes in directorship actioned by deceased former director of company - Where defendants allege first plaintiff acquiesced to her removal as director - Held first plaintiff's removal as director invalid - Ambridge Investments Pty Ltd v Baker & Ors [2010] VSC 59.

LOAN - Where plaintiffs allege funds paid by deceased to first defendant were by way of a loan - Where first defendant alleges such funds were a gift - Held funds advanced as gift to first defendant - Heydon v The Perpetual Executors Trustees & Agency Co (WA) Ltd [1930] HCA 26; (1930) 45 CLR 111.

EQUITY AND TRUSTS - Where plaintiffs allege company property held on resulting trust for deceased and first plaintiff - Where deceased made financial contributions to properties - Where first plaintiff made no financial contribution other than guarantee - Held company property held on trust for deceased pursuant to purchase money trust - Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; Sivritas v Sivritas & Ors (No 2) [2008] VSC 580; (2008) 23 VR 349; Vlahos Pty Ltd v Vlahos [2017] VSCA 166.

1 Agostino and Anna Cappelleri migrated to Australia in the early 1950s and established a fruit and vegetable business in Footscray.[1] They had three sons: Frank, Domenico[2] and Mario.

2 Frank married Leonie Cappelleri in 1979. They had one child, Vincenzo Cappelleri,[3] who was born in 1984.

3 After Frank and Leonie married, Frank began purchasing properties in the western suburbs of Melbourne. After renovating and repairing them, he would rent them out. Frank acquired six properties in this way over a period of about 27 years.

4 Frank and Leonie separated in 2005 and a proceeding in the Family Court of Australia was commenced soon after. Although the proceeding was highly acrimonious, Frank and Leonie did not divorce. Leonie filed affidavits in the Family Court proceeding which were tendered into evidence in this proceeding.

5 Frank died on 18 October 2014. He left a will dated 19 May 2003 in which he appointed Leonie as his executrix and left his entire estate to her. Leonie was granted probate of the will on 18 December 2014.

6 Some of Frank's property development interests were pursued through a company, Ninety-Sixth Goblin Pty Ltd, which was registered on 11 August 1983. The company later changed its name to F & L Pty Ltd (F & L), seemingly corresponding with Frank's and Leonie's first names, on 15 April 1987.

7 On 16 October 1984, F & L purchased a property at 97 Ballarat Road Maidstone. On 27 June 1996, F & L became the registered proprietor of a property located at 15 Saltau Street Keilor East, and on 6 December 1989 it became the registered proprietor of a property located at 75 Ballarat Road Maidstone.

8 Frank and Leonie resided at the property located at 15 Saltau Street until 2005 when Leonie left the premises. Leonie and Vince moved into the property at 15 Saltau Street in 2014 after Frank's death.

9 The central controversy in this proceeding is the ownership and control of F & L.

10 Leonie commenced this proceeding on 31 January 2017 in her personal capacity and in her capacity as the executor of Frank's estate. The proceeding is brought against Frank's brothers, Domenico and Mario (who I will refer to as 'the defendants'). F & L and the Registrar of Titles are the other defendants to the proceedings.[4]

11 Various assessments were made about Leonie's mental capacity between 2020 and 2021.[5] On 6 July 2021, Dr Nadia Berberovic, a clinical neuropsychologist, concluded that Leonie lacked capacity to represent herself in legal proceedings. As a result, on 30 August 2021, the Court ordered that Vince be appointed as Leonie's litigation guardian.[6] It may be noted that, although the Court has found that Leonie had lost legal capacity, at trial an affidavit by Leonie dated 9 November 2020 was received into evidence.[7]

12 On 20 September 2021, Vince made an application pursuant to s 34 of the Administration and Probate Act 1958 to have Leonie removed as the executor of Frank's estate and to have himself appointed in her place, on the basis that she was no longer a fit and proper person to carry out the administration of the estate due to her loss of mental capacity. On 22 December 2021, the Court ordered that Leonie be discharged as executor of Frank's estate and that Vince be appointed as the administrator with the will dated 19 May 2003 annexed of Frank's estate.

13 At all times, F & L has had a share capital of two ordinary shares. It is not in dispute that, until 2005, Frank and Leonie each held one of the shares in F & L.

14 On 22 August 2005, Frank notified the Australian Securities and Investments Commission (ASIC) that, on 17 August 2005, Anna Cappelleri's shareholding in F & L had decreased from one share to no share, and that Vince held two shares in F & L (the 2005 notification). ASIC amended its register pursuant to the 2005 notification.

15 Vince alleges that the 2005 notification lodged by Frank was false because:

(a) at no time did Anna Cappelleri (Frank's mother) hold one share in F & L and therefore she had no shares to transfer to Vince;

(b) at no time before 17 August 2005 did Vince hold one share in F & L;

(c) at no time from 17 August 2005 did Vince hold two shares in F & L;

(d) at all material times Leonie held one share in F & L; and

(e) at all material times Frank held one share in F & L.

16 Although ASIC amended its register pursuant to the 2005 notification, Vince alleges that the notification did not have the effect of transferring the two shares in F & L to him, and no such transfer ever took place. Instead he contends that, from 22 August 2005 and at all times thereafter, Frank and Leonie each continued to hold one of the two issued shares in F & L.

17 On or about 23 July 2010, Frank notified ASIC that, on 20 July 2010, Vince's shareholding in F & L decreased from two shares to no shares, and that Domenico held two shares in the company (the 2010 notification). ASIC amended its register pursuant to the 2010 notification. The current and historical extract produced by ASIC for F & L records that Domenico was the registered holder of the two shares in F & L from 23 July 2010 until 20 October 2020.

18 Vince alleges that the 2010 notification was false because, as a result of the matters alleged in paragraphs [15]-[16], at no time did he hold two shares in F & L, having no shares in F & L to transfer to Domenico. Further, he alleges that at no time from 20 July 2010 did Domenico hold any shares in F & L and that at all material times Frank and Leonie each held one share in F & L.

19 As with the 2005 notification, Vince alleges that, despite ASIC having amended its register pursuant to the 2010 notification, that notification did not have the effect of transferring the two shares in F & L to Domenico and no such transfer ever took place. It is Vince's case that, from 20 July 2010 and at all times thereafter, Leonie and Frank each continued to hold one of the two issued shares of F & L.

20 Leonie was appointed a director of F & L on or about 11 August 1983.

21 The defendants admit that Leonie was shown in the records of F & L as a director of the company until in or about March 2005. However, they deny that she was ever in fact a director of the company and assert that at all times until his death, Frank acted de facto as the sole director of F & L with the knowledge and consent of Leonie. Vince's uncontested evidence, which was consistent with the evidence given by Leonie, was that Frank sought to vigorously control all matters relating to his family and its affairs. He was also abusive and aggressive towards both Vince and Leonie.

22 It is not in dispute that, on or about 1 June 2005, Frank removed Leonie's name as a director of F & L without her consent or knowledge and that ASIC was notified that Leonie was no longer a director of F & L.

23 On or about 15 November 2013, Frank appointed Domenico as a director of F & L.

24 On or about 19 November 2014, Domenico appointed Mario as a director of F & L.

25 The current and historical extract produced by ASIC for F & L records that, in the period after Frank's death on 14 October 2014 until 18 October 2018, the directors of F & L were Domenico and Mario.

26 Vince alleges that the appointment of Domenico and Mario as directors of F & L was made without the consent or knowledge of Leonie.

27 Vince (in his personal capacity, his capacity as the administrator of Frank's estate and as Leonie's litigation guardian) sought the following relief at trial: [8]

(a) declarations that the appointments of Domenico and Mario as directors of F & L were null and void and invalid;

(b) a declaration that Leonie is the proper director and secretary of F & L;

(c) an order that ASIC rectify its register to show Leonie as the sole director and secretary of F & L;

(d) a declaration that the shares in F & L are owned by Leonie in her personal capacity as to one share, and Leonie in her capacity as executrix of Frank's estate as to one share;

(e) an order that ASIC rectify its register to show that the shares in F & L are owned by Leonie in accordance with the above subparagraph;

(f) a declaration that F & L holds its interest in the properties located at 97 Ballarat Road Maidstone, 15 Saltau Street Keilor East and 75 Ballarat Road Maidstone[9] on trust for Leonie and Frank; and

(g) an order that Domenico repay an amount of $200,000 said to be the total amount of loans made by the deceased to Domenico.[10]

28 By way of counterclaim, Domenico and Mario relevantly sought by way of final relief an order that Vince, Leonie and ASIC take all necessary steps to correct ASIC records to show Domenico as the sole shareholder in F & L, being the holder of two shares in the company.

29 With the consent of the parties, the Court ordered that the trial of the proceeding be conducted by reference to the following nine issues:

Issue 1: Was Leonie ever the beneficial owner of one of two shares in F & L, or did she hold her share on trust for Frank?

Issue 2: Are the plaintiffs' claims in relation to the rectification of the register in relation to the transfer of shares in F & L in 2005 and 2010 barred by virtue of ss 5(1)(a) and/or 21 of the Limitation of Actions Act?[11]

Issue 3: Was there at any time a transfer, effective in law or equity, of

a. One share or

b. Two shares

in F & L from Frank to Domenico?

Issue 4: Is Leonie estopped from asserting that the transfer of shares in F & L to Domenico is not valid and effective as alleged in paragraph 66C of the amended defence?

Issue 5: Was Leonie ever validly removed as a director of F & L?

Issue 6: Was the appointment of Domenico as a director of F & L valid?

Issue 7: Are the plaintiffs' claims identified in paragraph 79 of the amended defence barred by laches?

Issue 8: Were the amounts paid by F & L to Domenico on various dates as alleged in 2011 and 2012, and which totalled $200,000, paid as a gift or loan?

Issue 9: Does F & L Pty Ltd hold each of the properties on trust for Frank and Leonie?

30 In addition to the facts to which I have already referred, I record my findings of fact which specifically relate to each of these issues in the course of my consideration of each of them.

Was Leonie ever the beneficial owner of one of two shares in F & L, or did she hold her share on trust for Frank?

31 The defendants submitted that, at those times when Leonie was the owner of one of the shares in F & L, she held that share on trust for Frank.

32 In support of this contention, the defendants relied on the fact, established on the evidence, that Leonie took no real role in the operation of F & L. It was submitted that, although she signed documents when asked to do so by Frank, the assets of the company were treated by Frank as though they were his own, and Leonie acquiesced in this. Leonie made no contribution of a financial, physical or other kind to the company's operations.

33 It was further submitted that the properties acquired by F & L over the years also appear to have been subject to mortgages, the payment of which fell to Frank. It is correct that there is no evidence that Leonie made any mortgage payments in respect of the purchase of these properties and Leonie did not have any independent income of her own. Leonie's lack of financial contribution to the proprietary holdings of F & L, as well as Frank's exclusive responsibility for the purchases of these properties, was said to provide a strong basis to infer that Leonie held her share in F & L on trust for Frank.

34 The defendants also submitted that various affidavits made by Leonie which were in evidence indicated that she took no part whatsoever in the decisions relating to the affairs of F & L, and that she did not consider herself to have a beneficial interest in the share which ASIC listed in its register as being in her name. Leonie's own evidence and conduct was said to demonstrate that she did not consider herself to be the beneficial owner of that share.

35 These submissions are unpersuasive. Although Frank was solely responsible for the operations and administration of F & L and there is no evidence that Leonie personally made any financial contributions to the company or to the purchase of the properties which it owned, it does not thereby follow, particularly in the context of long term domestic relationship, that Leonie was not the beneficial owner of a share in the company. The making of administrative, commercial or financial contributions of the type made by Frank to F & L is not a necessary precondition to the existence of beneficial rights of ownership.

36 The company records of F & L which are in evidence, including annual returns, record Leonie as the beneficial owner of her one share. Consistent with this, in the family law proceedings, Leonie swore affidavits in which she asserted a beneficial interest in various properties, including those owned by F & L. Contrary to the defendants' submissions, it is clear from those affidavits that Leonie regarded herself as the beneficial owner of one of the shares in F & L.

37 Consistent with the annual returns filed for F & L which recorded Leonie as a beneficial owner of the share in the company, the ASIC register also records that the share held by her was held by her beneficially. Pursuant to s 1274B(2) of the Corporations Act 2001, information contained on the register is proof of the matter in the absence of evidence to the contrary. For the foregoing reasons, the evidence before me does not establish that, contrary to the contents of the ASIC register, Leonie was not the beneficial holder of a share in F & L. I reject the defendants' submission that, when she was the owner of one of the shares in F & L, she held that share on trust for Frank.

Are the plaintiff's claims in relation to the rectification of the register in relation to the transfer of shares in F & L in 2005 and 2010 barred by virtue of ss 5(1)(a) and/or 21 of the Limitation of Actions Act?

38 Section 5(1)(a) of the Limitation of Actions Act 1958 prohibits the bringing of actions 'founded on tort including actions for damages for breach of a statutory duty' after the expiration of six years from the date on which the cause of action accrued. Subject to some presently immaterial exceptions, s 21 of the Limitation of Actions Act prohibits a beneficiary under a trust bringing an action to recover trust property or for breach of trust after the expiration of six years from the date on which the right of action accrued.

39 Frank effected the 2005 and 2010 notifications more than six years before the commencement of this proceeding.

40 The defendants contended that the challenges brought by Vince to the validity of the purported transfers of shares in F & L the subject of the above notifications are based on the proposition that Frank's conduct in causing those transfers 'was wrongful and therefore is founded on tort or breach of statutory duty' and accordingly were caught by s 5(1)(a) of the Limitation of Actions Act. Further, it was submitted that a declaration that Leonie owns the shares in F & L, despite their fraudulent transfer, would amount to a claim of constructive trust, which again is caught by s 5(2) or s 21.

41 To the extent that the plaintiffs' claims involved the assertion of a constructive trust, the defendants characterised those claims as analogous to an action for account, which is caught by s 5(2) of the Limitation of Actions Act. Further, they asserted that s 21 of the Limitation of Actions Act does not apply to remedial constructive trusts. Accordingly, the plaintiffs would be unable to avail themselves of the absence of a limitation period for actions in respect of trust property in circumstances involving fraud, fraudulent breach of trust, or the conversion of trust property to the trustee themselves.

42 These submissions are unpersuasive. As stated by McDonald J in Waddington v State of Victoria & Ors, the correct analysis is as follows:[12]

The primary question is whether the plaintiff's claim for declaratory relief is an action 'founded on tort'. If this question is answered in the affirmative, the claim for declaratory relief is statute-barred. A declaration may be sought alone and need not be consequential relief for tortious conduct. The Supreme Court Act 1986 (Vic) s 36 provides, '[a] proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.'[13] Therefore, on one view, the claim for declaratory relief is not founded on tort but on statute. However, an action is comprised of the facts giving rise to a right to sue. Whether the plaintiff's claim for declaratory relief is founded on tort is a factual question.

43 In Waddington, the plaintiff sought declarations that the seizure of his vehicle and subsequent arrest were unlawful and invalid. Those claims were explicitly advanced on the basis that the conduct in question constituted the torts of trespass to goods, false imprisonment and battery. The plaintiff sought declarations together with damages. McDonald J found that the declarations were actions which were founded on tort and therefore barred by s 5(1)(a) of the Limitation of Actions Act.[14]

44 Vince does not advance any causes of action in his statement of claim. The relief he seeks in respect of the shareholding in F & L is a declaration that the shares in the company are owned by Leonie as to one share and Frank's estate as to one share, together with an order that ASIC rectify its register to record this. In this way, Vince seeks what may be regarded as 'pure' declarations as to rights, with consequential relief based upon the exercise of a statutory right under s 1322(4)(b) of the Corporations Act. Unlike Waddington, declaratory relief is not sought on the basis of a claim in tort which would engage the operation of s 5(1)(a). Neither does he advance an action for an account so as to engage the operation of s 5(2), a claim for the recovery of trust property so as to engage s 21, or a claim for damages for breach of statutory duty. Further, the action for rectification of the ASIC register is based on the statutory requirement for ASIC to keep the register and a necessity for it to be accurate[15] which is not touched by operation of s 5(1)(a) of the Limitation of Actions Act.

45 In submissions filed after the hearing, the defendants sought to resist this analysis by contending that the claim advanced by Vince was a claim for the tort of injurious falsehood, thereby engaging the time limitation in s 5(1)(a) of the Limitation of Actions Act.

46 As the defendants submitted, Vince's allegations concerning the invalidity of the share transfers in 2005 and 2010, as well as the changes in directors which were the subject of challenge, all involve alleged wrongful acts by Frank. The defendants submitted that in, respect of those acts, Vince alleges a false statement of, or concerning, Leonie's interest and role in F & L, which statements were published by Frank to ASIC. As a result of those false statements, Leonie was not shown on the ASIC register as a shareholder and director of F & L and as a consequence Vince seeks that the register be rectified and relevant declaratory relief granted.

47 The defendants submitted that this claim is properly characterised as a claim for relief in respect of the economic tort of injurious falsehood. Reliance was placed on the following statements by Gleeson CJ in Palmer Bruyn & Parker Pty Ltd v Parsons:[16]

[G]enerally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.[17]

...

The tort of "injurious falsehood" ... has its origins in actions for "slander of title". ... Despite the use of the term "slander" and its "unfortunate" association with the law of defamation, "slander of title" appears to have been recognised as an action on the case for the special damage resulting from the defendant's interference. The action was slowly enlarged in the nineteenth century, until the position was reached in 1892 where, in Ratcliffe v Evans, the modern foundation of the tort, Bowen LJ could say:

[t]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. ...[18]

48 The defendants submitted that the elements of injurious falsehood were found in the present case:

(a) on Vince's case, the documents lodged with ASIC contained false statements of, or concerning, Leonie's shareholding in a directorship of F & L;

(b) the relevant statements were published to ASIC and thereby published generally;

(c) on Vince's case, Frank published these statements with malice;[19] and

(d) Vince alleges that actual damage was suffered, namely, that Leonie was no longer shown on the ASIC register as a director of, or shareholder in, F & L and was no longer recognised, or treated, by those administering the company, as a director or shareholder in the company.

49 Whether or not the elements of the tort of injurious falsehood might be said to be satisfied in the present case, the difficulty for the defendants is that Vince has not in fact pleaded such a case, or sought relief based upon that tort. Notably, Vince does not claim damages, being the gist of the action in injurious falsehood.[20]

50 The Court has a broad jurisdiction to make declaratory orders. That jurisdiction is not dependent upon whether the plaintiff has pleaded or identified a cause of action in the proceeding.[21] The inherent power of the Court to grant declaratory relief is now contained in s 36 of the Supreme Court Act 1986 and r 23.05 of the Supreme Court (General Civil Procedure) Rules 2015 which respectively provide as follows:

36 Declaratory judgments

A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.

23.05 Declaratory judgment

No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

51 Both of these provisions provide that a proceeding is not open to objection on the ground that merely a declaratory judgment is sought. The want of a cause of action is not a bar to a claim for declaratory relief; what is required is a justiciable controversy which plainly here exists.

52 The matters that the Court will consider in determining whether the plaintiff has standing to seek declaratory relief were set out by Elliott J in Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd:[22]

The court's jurisdiction to grant declaratory relief is not in issue.[23] The exercise of the discretionary power is not possible or desirable to fetter.[24] A proceeding is not open to objection on the ground that a merely declaratory judgment is sought.[25] However, certain factors are relevant to the consideration of the appropriateness of declaratory relief in a particular circumstance:

(1) The declaratory relief "must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions".[26]

(2) The plaintiff or applicant must have a "real interest" in seeking the relief.[27]

(3) There must be a "proper contradictor" in the sense of a person who has "a true interest to oppose the declaration sought".[28] In appropriate cases, this requirement may be fulfilled notwithstanding the declarations are sought by consent.[29]

(4) Declaratory relief may not appropriate where the "declaration will produce no foreseeable consequences for the parties".[30]

53 Each of the criterion set out above are clearly satisfied in the present case.

54 Issue 2 is accordingly to be answered in the negative.

Was there at any time a transfer, effective in law or equity, of:

55 Section 1070A(1)(b)(i) of the Corporations Act relevantly provides that a share is transferable or transmissible as provided by a company's constitution. F & L's Articles of Association contain the following provisions in respect of the transfer of shares:

(a) The instrument of transfer of any shares shall be in writing in any usual or common form or in any other form which the Directors may approve. The instrument shall be executed by or on behalf of both the transferor and the transferee; and the transferor shall remain the holder of the shares transferred until the transfer is registered and the name of the transferee is entered in the register of members in respect thereof.[31]

(b) Except as provided by the Articles, there shall be no right of transfer of any shares in the Company whatsoever, except with the approval of the Board of Directors for the time being of the Company and the Directors may refuse to register any transfer of a share without being bound to give any reason for such refusal or without specifying any grounds thereof.[32]

(c) Every instrument of transfer shall be left at the office for registration accompanied by the certificate of the shares to be transferred and such other evidence as the Company may require to prove the title of the transferor or his right to transfer the shares. All instruments of transfer which shall be registered shall be retained by the Company but any instrument of transfer which the Directors shall refuse to register shall on demand be returned to the person depositing the same.[33]

(d) Clause 38 sets out a procedure as to a transfer of shares and provides that, 'Except as provided in Articles no transfer of shares shall be registered unless all members of the Company so agree or unless the following procedure is followed'.

56 Section 1071B(2) of the Corporations Act relevantly provides that a company must only register a transfer of shares if a 'proper instrument of transfer' has been delivered to the company. Section 1071B(3) provides that any instrument of transfer is not a 'proper instrument of transfer' if it 'does not show the details, specified in the regulations, in relation to the company concerned'. The relevant regulations are set out in Part 7.11 of the Corporations Regulations. Specification of the State or Territory in which a company is taken to be registered is a prescribed detail for the purposes of s 1071B(3) of the Corporations Act.[34]

57 In closing submissions, senior counsel for the defendants conceded that they could not establish that the shares in F & L said to be held by Domenico were validly transferred to him at law. It was nevertheless submitted that they had been validly assigned to Domenico in equity. There was no suggestion that Domenico provided any consideration in return for the transfer of the shares.

58 The principles relating to the enforceability of a gift were stated by Turner LJ in Milroy v Lord as follows:[35]

I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler [sic] must have done everything, which according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the person for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; ... but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is not intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.

59 This statement of principle was considered by Griffith CJ in Anning v Anning who said:[36]

I think that the words 'necessary to be done', as used by Turner LJ in Milroy v Lord , mean necessary to be done by the donor... If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think complete.

60 The reasoning and approach of Griffith CJ was affirmed by Mason CJ and McHugh J in Corin v Patton[37] who stated that two propositions emerged from the observations of Turner LJ in Milroy v Lord:[38]

First, the donor must have done everything necessary to be done, according to the nature of the property, in order to transfer the property and render the gift binding. Secondly, if the gift was intended to have been effectuated by one means, the Court will not give effect to it by another means.

61 Later, Mason CJ and McHugh J summarised the relevant principles as follows:[39]

... if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognize the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part.

62 The defendants' submission that the shares in F & L were validly assigned to Domenico in equity proceeded from the unexplained premise that, if the transfer of shares from Vince to Domenico in 2010 was not effective in law, the shares remained with the donor, being Frank. I do not understand the basis of that claim.

63 Nevertheless, on that unsubstantiated foundation, the defendants relied upon the following facts, established on the evidence, to contend that Frank had done everything necessary on his part to effect the transfer of his shares to Domenico:

(a) Frank signed a share certificate certifying that Domenico was the registered holder of two shares in F & L. Two different share certificates, both of which certified Domenico as the registered holder of two shares in F & L, were in evidence. Both were signed by Frank and one shows a date, 23 July 2010.

(b) On 22 July 2010, Frank signed and lodged with ASIC a Form 484 which notified ASIC that the shareholding of F & L had changed to two shares held by Domenico and no shares held by Vince.

64 Counsel for Vince referred to s 1070C(2) of the Corporations Act which provides that a share certificate issued in accordance with s 1070C(1) and which specifies shares held by a member of a company is prima facie evidence of the title of the member on the certificate to the shares. It was submitted that the abovementioned share certificate in F & L was not a share certificate issued in accordance with s 1070C(1) of the Corporations Act and therefore was not evidence of Domenico's title to the shares for two reasons:

(a) First, the certificate did not comply with the requirement imposed by s 1070C(1)(a) that the share certificate state that the company is registered under the Corporations Act.

(b) Secondly, Vince relied on s 231 of the Corporations Act which provides that a person is a member of a company if, amongst other things, they agree to become a member of the company after its registration and their name is entered on the register of members. It was submitted that, as was established on the evidence, Domenico was not entered on the register of members of F & L. Accordingly, the share certificate purported to certify something that did not exist: that Domenico was the registered holder of two shares.

65 In response, the defendants submitted that Domenico had acted as an officer of F & L over the years and that Frank signed and lodged with ASIC a form 484 notifying ASIC that Domenico had become a director of the company on 22 April 2010. Although Frank had not registered the shares said to have been transferred to Domenico in the share register, because Domenico was a director of F & L at that time, it was not necessary for Frank to register the transfer because that was an action which Domenico could take as a director. Accordingly, it was submitted that Frank had done everything that was necessary for him to do in effecting the transfer of shares to Domenico.

66 In his evidence in chief, Domenico stated that, in June 2010, Frank 'transferred the shares then in [Vince's] name to me ... on the basis that the shares would be held by me on trust for the benefit of our mother Anna and our brother Mario'. He referred to the share certificate in F & L which certified him as the registered holder of the two shares in the company and which was signed by Frank and dated 23 July 2010 and a written declaration which he signed on 9 November 2010 in the following terms:

This is to confirm that on Frank Cappelleri's request, I Domenic Michael Cappelleri declare that the shares in F & L Pty. Ltd, that were transferred to me, are to be held in trust for the benefit and upkeep of our brother Mario Cappelleri and our mother Anna Rosa Cappelleri.

I also declare that if so ever I shall predecease Frank Cappelleri then the said interest and shares in F & L Pty Ltd shall be dispensed to whomsoever Frank Cappelleri wishes.

67 In cross examination, Domenico agreed that he had no discussions with Vince about the transfer of shares and that there was nothing in writing between them recording the transfer. Apart from the documents referred to in [63] above, Domenico also could not produce any documentation showing the transfer of shares from Frank to him. His evidence was that such documents, as well as the 'company files', were kept as part of a share registry of F & L maintained by Frank at his home at 15 Saltau Street Steet Keilor East, the company's registered address. The share register has not been able to be located since Frank's death in 2014. It is to be noted Domenico has been a director of F & L since November 2013.

68 In cross examination, Domenico also said that, at the time of transfer, he could recall having a board of directors meeting with Frank approving him as a shareholder. He could not however refer to a specific meeting, with all meetings being 'casual over a coffee table', and instead referred generally to 'discussions' he would have nearly every day with Frank about 'what to do' about care arrangements for their mother and Mario. Domenico could not recall if a meeting of the board of directors of F & L at which a decision was made about the holding of charges was the type of matter which would be recorded in a document.

69 On the assumption that in 2010 the shares remained with Frank as donor, in order to for the Court to recognise a gift of shares in F & L to Domenico, it is for the defendants to establish that Frank did everything he needed to do, according to the nature of the property, to pass property in the shares to Domenico. In accordance with the provisions of F & L's Articles of Association relating to the transfer of shares to which I have referred in [555] above, this would require the defendants to establish, amongst other things, that Frank and Domenico executed an instrument of transfer and that that instrument was left at F & L's registered office. There is no evidence that Frank ever executed an instrument of transfer in relation to the shares; the share certificates which are in evidence and which are relied upon by the defendants do not record Frank transferring shares [40] Domenico.40

70 Alternatively, clause 34 of the Articles of Association appears to contemplate that a transfer of shares in F & L may be effected with the approval of the board of directors of the company. However, there is no documentary evidence, for example minutes of meetings, that the board of directors of F & L resolved to approve the transfer of shares from Frank to Domenico. I also do not accept Domenico's evidence referred to in [68]. Domenico's evidence in this regard, advanced only in cross examination, was vague, contradictory and lacking in the specificity one would expect in relation to such an important matter.

71 Issue 3 is accordingly answered in the negative.

Is Leonie estopped from asserting that the transfer of shares in F & L to Domenico is not valid and effective as alleged in paragraph 66C of the amended defence?

72 The defendants pleaded that Leonie was estopped from asserting that the transfer of the two shares to Domenico was not valid and effective.

73 The basis of this allegation is as follows. The defendants alleged that, on or about 23 July 2010, Leonie and Frank became concerned that the shares in F & L could not remain in Vince's name because it would make it unlawful for him to claim payments from Centrelink. In particular it is alleged that, on or about 7 July 2010, Leonie complained to Frank that Vince's shareholding in F & L was causing Vince problems with Centrelink and that, in response, Frank indicated to Leonie that he would transfer the shares out of Vince's name. Frank then lodged with ASIC on or about 23 July 2010 a notice of change of shareholder showing Domenico as the owner of the two shares and ASIC registered Domenico as the owner of the two shares.

74 The evidence is broadly consistent with these allegations. On 20 May 2010, Centrelink decided to cancel payment of a disability support pension to Vince and requested that he repay various debts. A 'decision statement' from Centrelink records that one of the reasons for this decision was Centrelink's view that Vince had legal ownership of substantial assets in the form of his shareholding in F & L. In an affidavit filed in the Family Court, Leonie deposed that, on 7 July 2010, she and Frank argued about, amongst other things, 'the big mess that [Frank] had put our son Vincent and I in, particularly with regard to Centrelink payments'. Leonie reminded Frank that Vince was still a shareholder of F & L and Frank disagreed. Leonie told him to check with ASIC. About an hour later, Frank telephoned Leonie and said that she was right, Vince was still a shareholder. Leonie states in her affidavit that Frank said 'I am waiting for some papers from ASIC and I will remove Vincent as a director'. Given the context and subject matter of these conversations and that there is no suggestion that Vince was a director of F & L at the time,[41] I am satisfied that either Leonie meant to convey that Frank told her that he would remove Vince as a shareholder, or that Frank misspoke in referring to his removal as a director as distinct from a shareholder. Both explanations are consistent with the fact that, some two weeks later, Frank made the 2010 notification in which he notified ASIC that, on 20 July 2010, Vince's shareholding in F & L decreased from two shares to no shares, and that Domenico held two shares in the company.

75 On the basis of the above facts, the defendants allege that Leonie knew of and acquiesced to the transfer of the two shares from Vince to Domenico and, further, that Domenico has acted as a director of F & L since 2013 and taken responsibility for the affairs of the company in the belief that his appointment as a director was valid and that the transfers of shares to him were valid and effective

76 In Waltons Store (Interstate) Ltd v Maher, Brennan J observed that silence will support an equitable estoppel only if it would be inequitable thereafter to assert a legal relationship different from the one which, to the knowledge of the silent party, the other party assumed or expected.[42] His Honour identified that, in order to establish an equitable estoppel it is necessary for a plaintiff to prove the following:[43]

(1) the plaintiff assumed that particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;

(2) the defendant has induced the plaintiff to adopt that assumption or expectation;

(3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation;

(4) the defendant knew or intended him to do so;

(5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and

(6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

77 As submitted on behalf of Vince, the fundamental difficulty for the defendants in establishing the existence of a promissory estoppel is that there was no relevant relationship between Domenico and Leonie. It is essential that the person sought to be estopped must have contributed, in some active way, towards the creation or continuance of the mistaken basis upon which the parties have conducted their dealings, therefore making it unconscionable to allow the party to resile from the position. There must in substance be some active contribution by the party sought to be estopped which makes it unjust to permit them to deny the truth of a belief or assumption which that party has induced.[44]

78 Domenico and Leonie had nothing to do with each other in relation to the purported transfer of shares to Domenico. As such, Leonie cannot be said to have induced Domenico to adopt any assumption about his ownership of the shares and she cannot be said to have acquiesced in any assumption made by Domenico. Leonie not aware that Domenico purported to be the owner of the shares until after Frank's death. Likewise, it cannot be said that Leonie knew or intended that Domenico should be the owner of the shares.

79 The question raised by Issue 4 is accordingly answered in the negative.

Was Leonie ever validly removed as a director of F & L?

80 In closing submissions, senior counsel for the defendants conceded that Leonie was never validly removed as a director of F & L. The question posed by Issue 5 is accordingly answered in the negative.

81 However, in closing submissions, senior counsel for the defendants raised a new point: that although Leonie was never validly removed as a director of F & L, she acquiesced in Frank's conduct in removing her as a director and Vince is therefore estopped from challenging her removal. Leonie's acquiescence was said to be established by her evidence filed in the Family Court proceeding and by her failure to challenge her removal after many years.

82 This submission must fail. Vince seeks declaratory relief recording that Leonie is the proper director and secretary of F & L. A declaration is a statutory remedy.[45] As stated by Vickery J in Ambridge Investments Pty Ltd v Baker & Ors, because the remedy is conferred in terms emphasising that its grant or refusal is within the discretion of the Court, it is not subject to equitable defences such as estoppel.[46]

Was the appointment of Domenico as a director of F & L valid?

83 In closing submissions, senior counsel for the defendants accepted that Domenico was not validly appointed as a director of F & L in accordance with its Articles of Association.

84 However, the defendants also submitted that, because Domenico had acted as a de facto director of F & L since Frank's death and all parties had acquiesced in him doing so, he was nonetheless a director within the broad definition of 'director' in s 9 of the Corporations Act which relevantly defines a director to mean:

(a) a person who:

(i) is appointed to the position of a director; or

(ii) is appointed to the position of an alternate director and is acting in that capacity;

regardless of the name that is given to their position; and

(b) unless the contrary intention appears, a person who is not validly appointed as a director if:

(i) they act in the position of a director; or

(ii) the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes.

85 Whether or not Domenico acted in the position of director so as to fall within paragraph (b) of the above definition is not to the point raised by Issue 6, which is whether he was validly appointed to that office. Satisfaction of the conditions in paragraph (b) may have various consequences under the Corporations Act, but the defendants did not explain how it would operate to remedy an invalidity in a director's appointment.

86 The question raised by Issue 6 is accordingly to be answered in the negative.

Are the plaintiffs' claims identified in paragraph 79 of the amended defence barred by laches?

87 The defendants contended that the claims made by Vince are barred by laches.

88 This submission must be rejected because, as stated by Deane J in Orr v Ford, 'laches is an equitable defence and is not available in answer to a legal claim'.[47] Vince does not seek equitable relief;[48] a declaration is not an equitable remedy[49] and the relief sought for the rectification of the ASIC register arises under statute.[50] The question raised by Issue 7 is accordingly answered in the negative.

Were the amounts paid by F & L to Domenico on various dates as alleged in 2011 and 2012, and which totalled $200,000, paid as a gift or loan?

89 Between 21 May 2011 and 1 October 2012, Frank made five payments by cheque to Domenico for a total amount of $200,000. In his capacity as administrator of Frank's estate, Vince seeks an order that Domenico repay this amount to Frank's estate on the basis that the amounts were advanced as loans.

90 Domenico's evidence was that the amounts were paid to him by Frank as 'gift[s] between brothers'. There was 'no correspondence or written detail' in relation to the payments, 'it was all verbal'. Referring to past dealings with his mother and brothers, his evidence was that 'was just how we did things'.

91 The decision of the High Court in Heydon v The Perpetual Executors Trustees & Agency Co (WA) Ltd[51] is directly on point. Although the judgment is very brief, it is clear authority for the proposition that the burden of proving that monies provided by one person to another were provided as a loan lies on the party advancing that contention.

92 There is a paucity of reliable evidence to support the finding that the moneys provided by Frank to Domenico were advanced as a loan. The only evidence were the following paragraphs in Leonie's affidavit:

In or about 2012 Frank told me that he had lent his brother, Domenico Cappelleri $200,000 for the Parkville Hotel. Frank told me in the weeks before his death that his brother was wanting him to lend him another $100,000 to put in a Mexican bar in the Parkville Hotel. At this time, Frank told me that he didn't want to lend his brother any more money because he had not been paid back the $200,000 he had lent Domenico for the Parkville Hotel.

The night before Frank died, he told me that he was going to sue his brother Domenico for the money he had lent him and that he never wanted to see him again.

93 The weight and utility of this hearsay evidence is inherently limited. At best it indicates Frank's view that the money he gave to Domenico was in the nature of a loan. The evidence is not, however, probative of any primary facts which might support that conclusion. Having regard to Domenico's largely unchallenged evidence on this issue referred to above, which was also supported by other evidence before the Court that family members had over the years provided funds to each other on an informal basis as needed, Leonie's evidence is insufficient to establish on the balance of probabilities that the $200,000 provided by Frank to Domenico was advanced as a loan.

94 In answer to the question raised by Issue 8, I find that the amounts paid to Domenico were paid as gifts.

Does F & L hold each of the properties on trust for Frank and Leonie?

95 The substance of Vince's pleaded case was that Leonie and Frank both provided guarantees in respect of the loans made to F & L to fund the purchase of each of the properties, and that they both made all of the repayments on the loans. On that basis, it was contended that F & L held each of the properties on a resulting trust for Leonie and Frank.

96 Although it is correct that both Leonie and Frank provided guarantees in respect of the loans made to F & L to fund the purchases of each of the properties, ultimately it was not in dispute that it was only Frank who contributed the purchase price for each of the properties and who re-paid the loans which were obtained to finance their purchase.

97 The principles relating to resulting trusts as authoritatively stated by the High Court in Calverley v Green[52] were summarised by Kyrou JA in Vlahos Pty Ltd v Vlahos as follows:[53]

Where A purchases property in the name of B, or in the name of A and B, and B does not financially contribute to the purchase price, there is a presumption that A is beneficially entitled to the interest in the property held by B.

Where two or more parties make equal financial contributions to the purchase price, but the property is conveyed into the name of one party only, there is a presumption that the parties take a beneficial interest in the property as tenants in common in equal shares.

Where two or more parties make unequal financial contributions to the purchase price, but the property is conveyed into the name of only one of them, or in all their names, there is a presumption that the parties take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price.

Payment of stamp duty and registration fees can be treated as a financial contribution to the purchase price for this purpose.

The onus of establishing the payment(s) giving rise to a presumption of resulting trust lies on the party who is asserting the existence of the trust.

When a presumption of resulting trust arises, it performs a similar function to the civil onus of proof by requiring the person against whom the presumption applies to adduce evidence, or to point to other evidence in the case, that rebuts the presumption.

Where the party claiming the benefit of the presumption of resulting trust contributed the entire purchase price, the presumption can be rebutted by evidence that the party had a contrary intention at the time the contribution was made, such as evidence of a gift or a loan.

Where two or more parties financially contribute to the purchase price and the legal title does not reflect their respective contributions, the presumption of resulting trust can be rebutted by evidence that, at the time the contributions were made, the parties had a common intention that the beneficial interests are to be the same as the legal interests. Ordinarily, whether a common intention existed at that time is not to be determined by reference to the subjective, uncommunicated intentions of the parties. Rather, it is to be inferred by reference to the parties' words and conduct and the prevailing context at that time, including the relationship that then existed between the parties. Evidence of subsequent statements or conduct, as distinct from those which are contemporaneous with the relevant transaction, will only be admissible as admissions against interest.

The strength of any presumption of resulting trust will vary from case to case, as will the weight of evidence required to rebut the presumption.

In some circumstances, a countervailing presumption of advancement will operate. That presumption arises in favour of the person in whose name the property is purchased, where the relationship between that person and the purchaser or contributor is such that the latter has a 'natural obligation to provide' for the former, such as in a case of a father and child. It will be presumed in such a case that the purchaser or contributor intended to give the other a beneficial interest unless the presumption is rebutted.

If a presumption of resulting trust arises and the relationship between the parties does not give rise to a presumption of advancement, the former presumption will give rise to a trust unless there is evidence that the person who financially contributed to the purchase price had a contrary intention at the time the contribution was made.

98 Consistent with these principles, where two or more people make unequal financial contributions to the purchase price of a property, but the property is conveyed into the name of only one person, or in all of their names, there is a presumption that the parties take a beneficial interest in proportion to their respective financial contributions to the purchase price. Further, as Kyrou JA stated in Sivritas v Sivritas & Ors (No 2):[54]

A person's beneficial interest under a resulting trust is solely determined by his or her direct financial contribution to the purchase price at the time the property is purchased and the trust was created. That is, each person's beneficial interest will be in the proportion of his or her direct financial contribution to the purchase price.[55]

99 Applying the above principles, it was uncontroversial that Frank contributed the purchase price for the properties which were registered in the name of F & L, that he repaid the loans to purchase them and that Leonie did not contribute to their purchase price or the repayment of the loans. A presumption accordingly arises that Frank is beneficially entitled to the interest in the properties held by F & L. The onus is on the defendants to adduce evidence which rebuts that presumption. In circumstances such as here where Frank contributed the entire purchase price, the presumption could be rebutted by evidence that Frank had a contrary intention when the contributions were made, such as evidence of a gift or a loan.

100 The defendants did not advance any evidence or submissions that Frank had a contrary intention when he made the financial contributions in relation to each of the properties. The fact that Leonie was a guarantor of the loans used to finance their purchase does not constitute a direct financial contribution so as to give her a beneficial interest. It therefore follows that F & L holds each of the properties on trust for Frank.[56]

101 The only submission advanced by the defendants on this issue which was adverted to briefly in their written submissions and not developed in oral submissions, was that the presumption of a resulting trust was negated by the operation of s 19A(3) of the Property Law Act 1958 which states:

In a voluntary conveyance executed after the commencement of this section, a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee.

102 Although there is some uncertainty as to whether s 19A(3) operates to abolish the presumption of a resulting trust arising as a consequence of a voluntary conveyance,[57] that controversy does not here arise. The present case does not concern voluntary or gratuitous conveyances of property, but purchase money trusts arising from the payment of purchase monies.

103 In summary, the answers to the questions raised by each of the issues for consideration is as follows:

Issue 1: Was Leonie ever the beneficial owner of one of two shares in F & L, or did she hold her share on trust for Frank?

Leonie was the beneficial holder of one share in F & L; she did not hold the share on trust for Frank.

Issue 2: Are the plaintiffs' claims in relation to the rectification of the register in relation to the transfer of shares in F & L in 2005 and 2010 barred by virtue of ss 5(1)(a) and/or 21 of the Limitation of Actions Act? - No.

Issue 3: Was there at any time a transfer, effective in law or equity, of

a. One share or

b. Two shares

in F & L from Frank to Domenico? - No.

Issue 4: Is Leonie estopped from asserting that the transfer of shares in F & L to Domenico is not valid and effective as alleged in paragraph 66C of the amended defence? - No.

Issue 5: Was Leonie ever validly removed as a director of F & L? - No.

Issue 6: Was the appointment of Domenico as a director of F & L valid? - No.

Issue 7: Are the plaintiffs' claims identified in paragraph 79 of the amended defence barred by laches? - No.

Issue 8: Were the amounts paid by F & L to Domenico on various dates as alleged in 2011 and 2012, and which totalled $200,000, paid as a gift or loan?

The amounts were paid as gifts.

Issue 9: Does F & L hold each of the properties on trust for Frank and Leonie?

F & L holds each of the properties on trust for Frank.

104 The parties are to submit proposed orders giving effect to these reasons for judgment. I will hear the parties on costs.

[1] In the interests of clarity and without intending any disrespect to any of the parties or witnesses, I will refer to them by their first names.

[3] Who is generally referred to as 'Vince'.

[4] The Registrar informed the Court by letter dated 10 February 2017 that they did not intend to appear in the proceeding.

[5] As detailed in Re Cappelleri (Ruling No 1) [2022] VSC 561, [6] - [10].

[6] Cappelleri v Cappelleri (No 2) [2021] VSC 53.

[7] See Re Cappelleri (Ruling No 1) [2022] VSC 561.

[8] Vince also sought various orders that, if made, would have the effect of removing encumbrances on certain properties. By counterclaim, the defendants sought an order for particular caveats on properties in favour of F & L to be reinstated. All of these claims were resolved prior to trial.

[9] Referred to collectively hereafter as 'the properties'.

[10] The facts relevant to this claim are discrete and dealt with in [89]-[90] below. The Court was informed by counsel that the amount referred to in the documents filed with the Court in respect of this claim, $210,000, was incorrect, and that the correct amount was as noted above.

[11] Issue 2 referred to in the orders of the Court also erroneously referred to a share transfer in 2001. No such alleged transfer was referred to in the pleadings or at trial.

[12] [2018] VSC 746, [21] ('Waddington').

[13] See also Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.05.

[15] See, for example, ss 1274(1) & 1274B(2) of the Corporations Act.

[16] (2001) 208 CLR 388 ('Palmer Bruyn').

[19] The defendants submitted that the element of malice is satisfied where 'the making of the statement [is] for some indirect, dishonest or improper motive', or where the statement is made with 'an intent to injure without just cause or excuse': The London Ferro-Concrete Co v Justicz (1951) 68 RPC 261, 265; Joyce v Motor Surveys Ltd [1948] Ch 252.

[21] P W Young, Declaratory Orders, 2nd ed, Butterworths 1984 [206]; Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 501 (Lord Diplock).

[22] [2016] VSC 42, [22].

[23] See, for example, C E Heath Casualty & General Insurance Ltd v Pyramid Building Society (in liquidation) [1997] 2 VR 256, 283.9-285.5 (Phillips JA) and the cases there cited.

[24] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437.9 (Gibbs J).

[25] Supreme Court Act 1986 (Vic), s 36.

[26] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582.2 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[27] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437.10 (Gibbs J), citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, 448 (Lord Dunedin).

[29] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378, 387 [30] (Greenwood, Logan and Yates JJ). See also Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission [1981] HCA 49; (1981) 148 CLR 121, 136.4 (Mason J with whom Gibbs CJ and Stephen J agreed), 137.7 (Murphy J), 145.2 (Wilson J).

[30] Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55, 69.7 (Mason J, with whom Jacobs and Murphy JJ agreed). See also 71.6 (Aickin J), cf 60.7 (Barwick CJ).

[34] Corporations Regulations 2001, reg 7.11.22.

[35] [1862] EngR 951; (1862) 4 De G. F. & J. 264, 274-275.

[36] [1907] HCA 13; (1907) 4 CLR 1049, 1057.

[37] (1990) 169 CLR 540, 558-559 ('Corin v Patton').

[40] For completeness, I also note that, contrary to the defendants' submissions referred to in [655] above, there is no evidence that Frank signed and lodged with ASIC a form 484 notifying ASIC that Domenico had become a director of the company on 22 April 2010.

[41] The ASIC Current & Historical Extract for F & L records Vince as being a director of F & L between 6 September 2002 and 15 March 2008.

[42] (1988) 164 CLR 387, 428.

[44] See Beech J in Merilla Pty Ltd v Commonwealth of Australia [2015] WASC 309, [202] where his Honour referred to the observations of Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1, [3525], [3526], noting that although those statements were made in the context of a discussion of estoppel by a convention, they had equal application to cases of equitable estoppel.

[45] See [5050] above.

[46] [2010] VSC 59, [72]. Vickery J referred to the granting of declaratory relief as not being subject to equitable defences such as laches, unclean hands, hardship and refusal to do equity.

[47] [1989] HCA 4; (1989) 167 CLR 316, 340.

[48] The relief is set out in [27] above.

[49] Dasma Environmental Pty Ltd v Environment Protection Authority [2021] VSC 798, [137]; Ambridge Investments Pty Ltd v Baker [2010] VSC 59, [72].

[50] Corporations Act 2001, s 1322(4)(b).

[51] [1930] HCA 26; (1930) 45 CLR 111.

[52] [1984] HCA 81; (1984) 155 CLR 242.

[53] (2017) 16 ASTLR 360, [53]-[63] (citations omitted).

[54] [2008] VSC 580; (2008) 23 VR 349, [124].

[55] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 246, 253, 258, 266-7 cited in Sivritas v Sivritas & Ors (No 2) (n 54).

[56] Although this finding departs from Vince's pleaded case, it is consistent with the evidence and the submission ultimately advanced on behalf of Vince to which no objection was taken by senior counsel for the defendants.

[57] See for example: Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273, 280; Drayson v Drayson [2011] NSWSC 965; Schweitzer v Schweitzer [2012] VSCA 260; and the consideration in Heydon and Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) [1220].