Plaintiff v Defendant

3 I will make the orders removing him. It is necessary to publish written reasons recording the circumstances in which Mr Iacovino is being removed.

4 Francesco and Rosa had no children. They were owners as tenants in common in equal shares of a real property at 34 Emmaline Street, Northcote (Northcote Property).

5 Francesco died on 10 September 2009, leaving a will dated 22 December 2006 (Francesco's will). Francesco's will appointed Rosa and Mr Iacovino as co-executors and co-trustees. Probate of Francesco's will was obtained by Mr Iacovino on 27 April 2010, and he became the sole executor and trustee of Francesco's estate as Rosa was unable to act.

6 By Francesco's will, he gave Rosa a right to use and occupy his interest in the Northcote Property, with it to be sold when she no longer required it, and gave the remainder to his siblings Vittorio Visione (Vittorio) and Michelina Visione (Michelina).

7 The Northcote Property was sold on 14 November 2009, with settlement of the sale occurring on 13 May 2010. At the time of the sale, Rosa was in residential aged care.

8 Rosa died on 6 March 2013 leaving a will dated 22 December 2006 (Rosa's will). Rosa's will appointed Francesco and Mr Iacovino as co-executors and co-trustees. As Francesco had predeceased Rosa, Mr Iacovino became the sole executor and trustee of Rosa's estate nominated in Rosa's will. Probate of Rosa's will was obtained by Mr Iacovino on 18 July 2013.

9 By Rosa's will, she gave Francesco a right to use and occupy her interest in the Northcote Property, with it to be sold when he no longer required it, and gave the remainder to Francesco's siblings, Marcello Visione, Benito Visione, Maria Visione, Margherita Visione, Anna Visione, Bruna Visione, Vittorio and Michelina.

10 At all relevant times, the defendant was the sole principal and director of Comito Iacovino & Co Pty Ltd (the Practice), a law practice operating from premises at 660 High Street, Northcote, Victoria. The Practice acted in a number of wills and probate matters, including the estates of Francesco and Rosa.

11 On 30 September 2022, the Victorian Legal Services Board appointed the plaintiff as manager of the Practice pursuant to ss 327(2)(b) and 334 of the Legal Profession Uniform Law. That appointment has been extended and was most recently renewed by notice dated 27 June 2025.

12 On 20 January 2025, the Practice was placed into liquidation and Mr Edward Muscat of Mayfields Business Advisors (an insolvency firm) was appointed as its liquidator.

13 By originating motion filed on 19 June 2025, and supported by the plaintiff's affidavit sworn and filed 19 June 2025, the plaintiff, in his capacity as manager of the Practice, seeks the defendant's removal as executor and trustee of Francesco and Rosa's estates, and the appointment of an independent administrator to administer the estates.

14 On 15 July 2025, the defendant filed a notice of appearance.

15 Mr Iacovino has filed a notice of appearance, so clearly he was served with the originating motion. At the hearing, he confirmed that he was also served with the supporting affidavit of Mr Neylon. Also, as a party to the proceeding who has filed a notice of appearance, Mr Iacovino has had access to all filed court documents in the proceeding via the court's electronic filing system (RedCrest). I am satisfied that the court documents in this proceeding have come to Mr Iacovino's attention, including Mr Neylon's affidavit in support filed 19 June 2025. In particular, I am satisfied that Mr Iacovino has had an opportunity to respond to all of the allegations against him that are identified in these reasons for judgment. At the hearing, Mr Iacovino indicated to me that he chose not to respond to those matters.

16 In an email from the defendant to the Court on 18 August 2025, Mr Iacovino confirmed that he consented to his removal and to the orders sought by Mr Neylon.

17 The matter was listed for a directions hearing on 22 August 2025.

(a) the affidavit of the plaintiff, Damian Thomas Neylon, sworn on 19 June 2025 and the exhibits to that affidavit (First Neylon affidavit); and

(b) the further affidavit of Mr Neylon sworn on 20 August 2025 and the exhibits to that affidavit (Second Neylon affidavit).

19 The defendant, Mr Iacovino, did not file any affidavits or material.

20 Mr Neylon has not been able to make contact with any of the beneficiaries, who all appear to reside in Italy and for whom he has no contact details. In light of the facts referred to in the First Neylon affidavit, which I outline later in these reasons, it is clear beyond any doubt that Mr Iacovino must be removed as executor of the estates, and it is desirable that this be done urgently. Given these circumstances, the Court did not require notice to be given to the beneficiaries of the estates of this proceeding and for their consent to the defendant's removal as executor and trustee.

21 The plaintiff relies on s 34(1)(c) of the Administration & Probate Act to remove the defendant as executor of the estates and s 48 of the Trustee Act to remove the defendant as trustee of the estates. There is no relevant difference between the tests for removal of an executor and a trustee.[1] Section 34(1)(c) relevantly empowers the Court to remove an executor where the executor 'refuses or is unfit to act in such office or is incapable of acting therein'.

22 Section 34(1)(c) of the Administration & Probate Act was authoritatively considered by Ashley J in Monty Financial Services Ltd v Delmo (Delmo).[2] In Delmo, Ashley J observed:

Unfitness bears its ordinary common meaning, that is that the person is not fit, adapted or suited to continue as an administrator, or is not deserving of continuing as an executor. It does not relate to the physical health of the executor, but relates to all matters which effect (sic) the capacities of a person to perform an executor's tasks.[3]

23 In Dimos v Skaftouros[4] the Court of Appeal observed that the power of removal extended to circumstances including breach and neglect of duty in the administration of the estate including such matters as unwarranted delay, failure to communicate with beneficiaries and failure to account, as well as conflict of interest and duty.[5]

24 The paramount consideration in whether to exercise the discretion to remove an executor 'is the welfare of the beneficiaries and the protection of their interests in the estate'.[6]

25 In the First Neylon affidavit, Mr Neylon deposed to the following:

(a) the estates of Francesco and Rosa have not been finalised as of the date of his appointment as manager of the Practice, despite the settlement of the sale of the Northcote Property having taken place in 2010 and Rosa's death occurring in March 2013;

(b) the Practice had opened a number of different files for the affairs of Francesco and Rosa and their estates, including the following:

(i) matter number 090240, "Sale of 34 Emmaline Street, Northcote";

(ii) matter number 100242, "Collection and distribution of Estate";

(iii) matter number 110509, "Estate planning & relocation of [sic] Nursing Home"; and

(iv) matter number 130081, "Collection and distribution of Estate";

(c) the net settlement proceeds for the sale of the Northcote Property were paid into the Practice's trust account for matter 090240, being the $41,675 on 24 November 2009 (representing the net deposit for the sale) and $628,158.70, on 13 May 2010, which I infer was the balance;

(d) the trust ledger for matter 090240 records that on 17 May 2010 the amount of $667,071.91 was transferred to the trust ledger for matter 100242. The trust account ledger for matter 100242 records the following entries:

(i) on 26 October 2011, there were four trust transfers to the trust ledger for matter 110509, totalling $170,509.11; and

(ii) on 4 July 2013, there was a trust transfer of $380,000 to the trust ledger for matter 090230 with the narration "Short Term Investment". The client in matter 090230 was the Italian Club Cavour Inc (Cavour Club), which is an Italian social club in which Mr Iacovino has been a long-term member as well as an office-bearer;

(e) on 4 July 2013, there was a trust transfer of $160,000.00 from matter 110509 to the trust ledger for matter 130081;

(f) on 4 July 2013, there was a trust transfer of $150,000.00 from matter 130081 to matter 090230 (for the Cavour Club) with the narration "Short Term Investment";

(g) the trust ledger for matter 090230 shows the deposits of $380,000 (from matter 100242) and $150,000 (from matter 130081) on 4 July 2013. The trust ledger for matter 090230 also records the withdrawal of $550,000 on 4 July 2013 which was paid to "Bdlegal (sic) Legal Practice Trust". There is no narration for the withdrawal;

(h) Mr Neylon perused the files for the estates of Francesco and Rosa that were conducted by the Practice and could not find any documentation regarding the two "Short Term Investments" from the trust account for the estates of Francesco and Rosa to the Cavour Club;

(i) to date, the two amounts transferred from the trust ledgers for Francesco's and Rosa's estates to the trust ledger of the Cavour Club have not been repaid; and

(j) the amount of $550,000 was received by BD Legal Pty Ltd on behalf of its client, Adnan Glibanovic, in settlement of a County Court proceeding issued by Mr Glibanovic in which he made a claim against Mr Iacovino personally.

26 A flow-chart depicting the flow of trust funds was included in the First Neylon affidavit and is reproduced below:

27 As already noted, Mr Iacovino has filed no affidavit and made no response to these factual matters established by the First Neylon affidavit.

28 Mr Iacovino has consented to being removed, but without indicating that he accepts the factual matters in the First Neylon affidavit.

29 The Practice was under the sole direction and control of Mr Iacovino. There is no suggestion that anyone else could have been responsible for the handling of the trust moneys of the law practice and making the ledger entries noted above. On the basis of the ledger entries and transfers of money noted above, it is open for the Court to infer that Mr Iacovino deliberately and dishonestly misappropriated money from the estates of Francesco and Rosa. $550,000 of that money was paid to a third party in settlement of a claim against Mr Iacovino, which amounts to Mr Iacovino obtaining a personal benefit or advantage. The balance appears to remain in the trust account but under a trust ledger for another entity.

30 In short, it is clearly open to infer that Mr Iacovino has deliberately and dishonestly misappropriated money from estates for which he was acting as executor and trustee for his own benefit. Although I acknowledge that there has been no responsive material from Mr Iacovino, I find it difficult to imagine what other inference could possibly be drawn.

31 Because that inference is open and unanswered by Mr Iacovino, I am satisfied that Mr Iacovino is unfit to continue acting as executor and trustee.

(a) Mr Iacovino did not make or leave appropriate records concerning the two transfers to the trust ledger for the Cavour Club;

(b) Mr Iacovino has not restored the proceeds of the sale of the Northcote Property to Francesco's and Rosa's estates;

(c) Mr Iacovino has clear conflicts of duty and interest, and may have conflicts between competing duties, in inquiring into the transactions noted above and taking steps to restore misappropriated money to the estates of Francesco and Rosa, and in taking steps to transfer amounts from the trust ledger for the Cavour Club to the trust ledger for the estates of Francesco and Rosa; and

(d) there has been inordinate delay in the completion of the administration of Francesco's and Rosa's estates.

33 By letter dated 13 June 2025, Lachlan Vallance, Director and Principal Lawyer of Hicks Oakley Chessell Williams, consented to his appointment as administrator of the estates of each of Francesco and Rosa.

34 In the Second Neylon affidavit, a letter from Mr Vallance is exhibited, wherein Mr Vallance confirms that if he is appointed as the administrator he will give the usual probate undertakings to the Court.

35 In these circumstances, I am satisfied that Mr Vallance should be appointed as the administrator of the estates of Francesco and Rosa.

[1] See e.g. Re Johnson; Blackham v Blackham [2024] VSC 497, [46].

[2] [1996] VicRp 7; [1996] 1 VR 65, approved in Fysh v Coote [2000] VSCA 150 and Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584.

[4] [2004] VSCA 141; (2004) 9 VR 584.