Di Trapani v Di Trapani

HopgoodGanim Lawyers for the eighth and ninth respondents

[1] On 2 March 2026, I gave judgment on the construction of several clauses of Mrs Di Trapani's will (the will).[1] When I delivered judgment I directed the parties to file orders by consent reflecting my reasons or, failing agreement, to provide their respective proposed orders together with written submissions not exceeding two pages by 4.00 pm on 9 March 2026.

[2] With one exception, the parties are agreed as to the appropriate orders. The exception is paragraph 1(g). It concerns clauses 8.7 and 8.8 and the will. A disagreement has arisen between the parties as to what, if any, impact my findings as to the enforceability of clause 8.6 would have on the interpretation of clause 8.8.

[3] The applicants and the first, second, seventh, eighth and ninth respondents propose the following as the appropriate order:

"(g) Clause 8.7 and 8.8 are construed as separate benefits and do not merge into one combined benefit".

[4] The fourth respondent (who also purported to make submissions on behalf of the fifth and sixth respondents) contends that the appropriate order should be:

"(g) clauses 8.7 and 8.8 are construed as separate benefits and do not merge into one combined benefit. However, as Clause 8.6 is unenforceable and the $400,000 debt owed by the Second Respondent to the Seventh Respondent remained outstanding at the date of death, the condition precedent in Clause 8.8 has not been satisfied, and the legacy therein is not payable."

[5] Clause 8.8 of the will directs Mrs Di Trapani's trustees not to make any claims on any debt owed by the second respondent up to the sum of $400,000.00. If there is no debt as at the date of Mrs Di Trapani's death, it provides that the second respondent receive a further bequest of $400,000.00.

[6] Clause 8.6 of the will was directed towards intercompany loans, that is, loans between the seventh, eighth and ninth respondents.[2] In my first judgment I held that clause 8.6 was an unenforceable wish and that Mrs Di Trapani did not have the power to direct the forgiveness of any intercompany loans between those entities.[3]

[7] The fourth respondent has referred me to documents which suggest that the second respondent may have owed a debt in the sum of $400,000.00 as at the date of Mrs Di Trapani's death (the debt). The debt appears to have arisen pursuant to an executed loan agreement that named Mrs Di Trapani personally as the lender.

[8] The fourth respondent submits that, because of my findings as to clause 8.6, the portion of clause 8.8 directing forgiveness of the debt is also unenforceable. This argument stems from evidence suggesting that the funds advanced pursuant to the loan agreement originated from a bank account in the name of the seventh respondent. The fourth respondent invites me to conclude on that evidence that the debt is a "corporate liability", which I take in the context to mean that it is a kind of "intercompany loan" falling within the ambit of clause 8.6.

[9] The applicants and the first, second, seventh, eighth and ninth respondents submit that it is inappropriate for the fourth respondent to raise this matter in circumstances where, they contend, the matter was not the subject of argument at the hearing. There is some merit to this position.

[10] In any event, I decline to make the orders sought by the fourth respondent. My reasons for doing so are as follows. That the funds were advanced from a particular source does not change the party to whom the debt was owed. It is apparent on the face of the loan agreement that the debt was owed to Mrs Di Trapani. Further, even if the debt could be said to have been "owed by the Second Respondent to the Seventh Respondent", it would still not be an "intercompany loan" within the ambit of clause 8.6. As I said in my first judgment, there was "nothing in the language of that clause to support the proposition that it was intended to deal with matters other than those involving [the seventh, eighth and ninth respondents]".[4] Clause 8.6 was not directed to loans between a corporate respondent and a natural person.

[11] I will make orders in accordance with the draft provided by the applicants and the first, second, seventh, eighth and ninth respondents.

[1] Di Trapani v Di Trapani [2026] QSC 20 ('Di Trapani').