Plaintiffs v Defendants

For Michael Carrafa and Fabian Kane Micheletto (in their capacity as Trustees/Receivers and Managers of the PDJ Crew Unit Trust and the JAG Group Unit Trust)

1. These reasons concern judicial advice and directions sought by Michael Carrafa and Fabian Kane Micheletto ('Applicants') who, pursuant to an Order made on 27 October 2023, were appointed as receivers and managers and replacement trustees of the PDJ Crew Unit Trust ('PDJ Crew Trust') and replacement trustees of the JAG Group Unit Trust ('JAG Group Trust'). The Applicants were appointed to those roles following a lengthy trial and the delivery of judgment on 4 September 2023 in Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) ('Trial Reasons').[1]
2. Judicial advice is sought in circumstances where there is uncertainty as to the ownership of:

(a) the 60 units recorded in the register of unit holders of the PDJ Crew Trust in the name of Melbourne Property Group Pty Ltd ('MPG'); and

(b) the 25 units recorded in the register of unit holders of the JAG Group Trust in the name of MPG.

1. By summons filed on 3 February 2026 ('Summons'), the Applicants seek relief including:

(a) in respect of the PDJ Crew Trust, judicial advice and direction pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') that the Applicants are justified in determining that Mr Landlord Pty Ltd ('Mr Landlord') as trustee for the Brandi Family Trust is entitled to be registered as the unit holder of 60 units in the PDJ Crew Trust; and

(b) in respect of the JAG Group Trust, a direction pursuant to r 54.02 of the Rules that the Applicants are justified in determining that Mr Landlord as trustee for the Brandi Family Trust is entitled to be registered as the unit holder of 25 units in the JAG Group Trust.

1. Rule 54.02 of the Rules confers on the Court the power to give directions to trustees. As Gillard J observed in Re Atkinson (deceased),[2] the rule reflects the long-standing practice that '[w]here an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the court as to what it should do'.[3]
2. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand,[4] the High Court emphasised the importance of a trustee in doubt seeking judicial advice as to the correct course of action. The High Court made clear that the only jurisdictional bar is that an 'applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument'.[5]
3. The Trial Reasons and the decision of the Court of Appeal that followed in Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd ('Appeal Reasons') did not resolve contested questions as to ownership of the units as to which the Applicants now seek judicial advice. [6]
4. The Trial Reasons include the following summary of my findings:[7]
   1. For the detailed reasons that follow:

...

(d) I am not persuaded on the balance of probabilities that Mr Landlord has the entitlement to a 50% interest in the PDJ Crew Unit Trust or an entitlement to the 50% interest in the proceeds of sale of Newsom Street that it claims. The claim by Mr Landlord is dismissed.

(e) I am not persuaded on the balance of probabilities that Timeless Sunrise holds 50% of the PDJ Crew Units.

(f) In the alternative scenario, if I was persuaded that there was no effective transfer of the PDJ Crew Units from MPG to Timeless Sunrise in July 2014, I would have held that on and from 16 November 2020 any and all assets of the Brandi Family Trust, including the 60 units in the PDJ Crew Unit Trust, immediately vested in Mr Landlord as trustee.

(g) The question of who is now properly entitled to 50% of the PDJ Crew units held by MPG in its capacity as trustee of the Brandi Family Trust in 2008 is a matter that may need to be determined in the future by the trustee of the PDJ Crew Unit Trust.

...

(r) The David Brandi parties' claim that Mr Landlord holds 25 of the units in the JAG Group Unit Trust fails.

1. Mr Landlord, in its capacity as trustee for the Brandi Family Trust, applied for leave to appeal the trial judgment. On 27 June 2025, the Court of Appeal refused leave to appeal, delivering its reasons for so doing in the Appeal Reasons.[8]
2. The Applicants then commenced the process of determining who is properly entitled to the units in the PDJ Crew Trust and the JAG Group Trust held in the name of MPG prior to July 2014. The Applicants obtained legal advice, the contents of which is covered by legal professional privilege and is to remain confidential. They invited the David Brandi parties and the Jason Brandi parties to make submissions and provide documents or information, they being persons who have an interest in the outcome of the determination and whom it might reasonably be anticipated hold such information and documents.
3. As noted in submissions filed by the Applicants and as appears from the two affidavits of Mr Carrafa, one open and the other confidential, both dated 15 January 2026, and the exhibits thereto, in undertaking the process of determination, the Applicants considered two main alternative positions:

(a) Option 1: That MPG transferred its units in the trusts to Timeless Sunrise Pty Ltd ('Timeless Sunrise') in or about July 2014; or

(b) Option 2: That MPG remained the unit holder until the time of its deregistration. MPG held those units as trustee for the Brandi Family Trust. When Mr Landlord was appointed as trustee for the Brandi Family Trust with immediate effect on 16 November 2020, the units vested in Mr Landlord as the new trustee for the Brandi Family Trust.

1. Relevant to the alternative positions are my findings at paragraphs 780-825 of the Trial Reasons, particularly those extracted below:[9]

Findings

1. Issue 3 requires me to determine whether Mr Landlord has established on the balance of probabilities that upon its appointment as trustee of the Brandi Family Trust in November 2020 it became the holder of the 60 units held by MPG upon execution of the Trust Deed in 2008.

2. For Mr Landlord to discharge the burden of proof that it bears, it must establish that when it was appointed as trustee in November 2020 the units in the PDJ Crew Unit Trust were an asset of the Brandi Family Trust.

...

July 2014

...

1. It is for Mr Landlord to establish that, despite the evidence constituted by the documents dated 1 July 2014, the units were units of the Brandi Family Trust in November 2020.

2. I am not satisfied that 'the contrary is proved' in respect of the 1 July 2014 Memorandum of Resolutions for the purposes of s 251A(6) of the Corporations Act.

3. Having observed both David and Tina give evidence that the documents dated 1 July 2014 came into existence in July 2014, I was sceptical of that evidence. However, there is one piece of documentary evidence which I regard as important that is consistent both with their evidence and with the proposition that the documents dated 1 July 2014 were created prior to 31 July 2014.

Metadata

1. The metadata on the 11 page PDF copy of the 1 July 2014 documents, as discussed at paragraphs 676-677 above, provides documentary evidence that the 60 units owned by MPG were transferred by MPG to Timeless Sunrise by documents created prior to 31 July 2014.

...

1. In all the circumstances, no issue now being taken by the Jason Brandi parties and by PDJ Crew in particular with the consequences of the fact, assuming it to be the case, that Jason did not sign the PDJ Crew Declaration of Trust or Memorandum of Resolutions, I am not satisfied that the effective transfer of units documented as between the David Brandi controlled parties, MPG and Timeless Sunrise, did not take place in July 2014.

2. Mr Landlord has not satisfied me that, after July 2014, MPG continued to hold the units in its capacity as trustee of the Brandi Family Trust. I am not satisfied on the evidence given at the trial, that on or around 1 July 2014 there was not an effective transfer of MPG's units in the PDJ Crew Unit Trust to Timeless Sunrise.

3. That is the case noting that the financial records relied on by the Jason Brandi parties in their submissions noted above, each of which are business records admissible as truth of the representations within them pursuant to s 69 of the Evidence Act, are consistent with there having been a transfer of the units to Timeless Sunrise.

25 February 2019

...

1. Because I am not persuaded by Mr Landlord that the units in the PDJ Crew Unit Trust were assets of the Brandi Family Trust as at 25 February 2019, there being no later event of transfer of the units to the Brandi Family Trust, I am not persuaded that the units were assets of the Brandi Family Trust in November 2020 when Mr Landlord was appointed trustee.

2. As a result of those findings, no occasion arises to consider the David Brandi parties' submissions that by operation of the ipso facto clause in the trust deed of the Brandi Family Trust, following the deregistration of MPG, the execution of the 16 November 2020 deed appointing Mr Landlord had the effect of vesting the assets of the Brandi Family Trust, including the 60 units in the PDJ Crew Unit Trust, in Mr Landlord.

3. I have expressed my findings in relation to issue 3 on the basis that I am not satisfied that Mr Landlord has proved on the balance of probabilities that the Brandi Family Trust owned the units in the PDJ Crew Unit Trust as at 25 February 2019. The twists and turns in the pleaded issues and in the evidence, first sought to be relied upon by Timeless Sunrise, then abandoned in favour of the Mr Landlord preferred case, only to be reinstated via cross-examination, are indicative of the unsatisfactory state of the evidence in relation to the events alleged to have occurred in July 2014. I am conscious of the caution expressed by the Court of Appeal in Eumeralla Estate in deciding issue 3 by reference to the burden of proof. However, in this case Mr Landlord has fallen well short of establishing on the balance of probabilities that the units in the PDJ Crew Unit Trust remained the units of the Brandi Family Trust in February 2019. Without that being established, the claim by Mr Landlord to the units and to Newsom Street must be dismissed. In light of my findings, there is no basis to make a vesting order pursuant to s 51 of the Trustee Act in favour of Mr Landlord.

4. It was submitted on behalf of the David Brandi parties that, whatever the case, the units initially held by MPG are not held by Jason. Further, that, if the Court decides that there was a transfer in 2014, there should be a declaration to that effect in favour of Timeless Sunrise, who remains a party to the proceeding.

5. To be clear, I am not persuaded that Timeless Sunrise holds the units. I am simply not persuaded that Mr Landlord does. Even if I was persuaded that Timeless Sunrise held the units, it would be totally inappropriate to make any declaration in its favour. Timeless Sunrise was the lead plaintiff in the Timeless Sunrise proceeding until it entirely abandoned its claim to be entitled to the units. It is bound by the manner in which it conducted its case.

6. The question of who is now properly entitled to the 60 units held by MPG in its capacity as trustee of the Brandi Family Trust in 2008 is a matter that may need to be determined in the future by the trustee of the PDJ Crew Unit Trust.

Alternative analysis: assume MPG held the units on 25 February 2019

1. If I am wrong in my finding that the David Brandi parties have failed to prove Mr Landlord's 'chain of title' to the units in the PDJ Crew Unit Trust due to the events of July 2014, then it is necessary to consider the position if I was persuaded that there was no effective transfer of the units in 2014.
2. In that alternative scenario, despite the liquidator of MPG never being told the units were an asset of the Brandi Family Trust, MPG in its capacity as trustee of the Brandi Family Trust held the units when it went into liquidation on 25 February 2019 and when it was deregistered on 6 December 2019.
3. Proceeding on that basis, which includes proceeding on the basis that David (not Ernie for the reasons discussed above) actively concealed or failed to disclose the existence of valuable units in the trust to the liquidator, if the units were still assets of the trust on 25 February and 6 December 2019, did those assets vest in Mr Landlord on 20 November 2020?

1. My role as the trial judge was to determine issues relating to ownership of the units based on the pleadings, having regard to whether or not the claims alleged were established on the balance of probabilities and, to do so, as appropriate, by reference to the burden of proof.
2. As stated in the Appeal Reasons:[10]
   1. Next, the judge made it clear that he was deciding the case on the basis of burden of proof, explaining:

I have expressed my findings ... on the basis that I am not satisfied that Mr Landlord has proved on the balance of probabilities that the Brandi Family Trust owned the units in the PDJ Crew Unit Trust as at 25 February 2019. The twists and turns in the pleaded issues and in the evidence, first sought to be relied upon by Timeless Sunrise, then abandoned in favour of the Mr Landlord preferred case, only to be reinstated via cross-examination, are indicative of the unsatisfactory state of the evidence in relation to the events alleged to have occurred in July 2014. I am conscious of the caution expressed by the Court of Appeal in Eumeralla Estate in deciding [this] issue ... by reference to the burden of proof. However, in this case Mr Landlord has fallen well short of establishing on the balance of probabilities that the units in the PDJ Crew Unit Trust remained the units of the Brandi Family Trust in February 2019. Without that being established, the claim by Mr Landlord to the units ... must be dismissed. In light of my findings, there is no basis to make a vesting order ... in favour of Mr Landlord.

1. By way of conclusion, the judge said:

To be clear, I am not persuaded that Timeless Sunrise holds the units. I am simply not persuaded that Mr Landlord does. Even if I was persuaded that Timeless Sunrise held the units, it would be totally inappropriate to make any declaration in its favour. Timeless Sunrise was the lead plaintiff in the Timeless Sunrise proceeding until it entirely abandoned its claim to be entitled to the units. It is bound by the manner in which it conducted its case.

The question of who is now properly entitled to the 60 units held by MPG in its capacity as trustee of the Brandi Family Trust in 2008 is a matter that may need to be determined in the future by the trustee of the PDJ Crew Unit Trust.

1. When it came to the JAG Group Unit Trust, the judge was comparatively brief. He said:

The David Brandi parties seek a declaration that Mr Landlord and BigJ are the current unitholders of the JAG Group Unit Trust, each holding 25 units out of a total of 50 issued units. The Jason Brandi parties do not agree to such an order and I do not propose to make it. The David Brandi parties have failed to discharge their burden of proving on the balance of probabilities that Mr Landlord has an entitlement to those units. The David Brandi parties' case concerning the units in the JAG Group Unit Trust relies on the same evidence and the same arguments relied on in support of an order that 50% of units in the PDJ Crew Unit Trust vested in Mr Landlord as trustee of the Brandi Family Trust on 16 November 2020. For the reasons that the claim concerning the units in the PDJ Crew Unit Trust fails, the David Brandi parties' claim in respect of the units in the JAG Group Unit Trust fails.

1. The critical issue on appeal was whether, when considering the alternative version of events put forward by the Jason Brandi parties, namely the alleged transfer in 2014, the trial judge was required to make a finding as to whether or not the transfer took place. In the opinion of the Court of Appeal, no such finding was required.[11]
2. The role of the trial judge is very different from the role to be performed by the Applicants when determining the questions upon which they seek judicial advice. The Applicants are not concerned with where lies the burden of proof and whether it has or has not been discharged. As outlined by Robert Walker J in Scott v National Trust for Places of Historic Interest or Natural Beauty,[12] to which the Court of Appeal referred in Owies v JJE Nominees Pty Ltd ('Owies'):[13]

Certain points are clear beyond argument. Trustees must act in good faith, responsibly and reasonably. They must inform themselves, before making a decision, of matters which are relevant to the decision. These matters may not be limited to simple matters of fact but will, on occasion (indeed, quite often) include taking advice from appropriate experts, whether the experts are lawyers, accountants, actuaries, surveyors, scientists or whomsoever.[14]

(Emphasis added)

1. Discussing a trustee's duty to give real and genuine consideration, the Court of Appeal in Owies referred to the statement by Callaway JA in Telstra Super Pty Ltd v Flegeltaub ('Telstra Super') that:[15]

one cannot ordinarily decide a question of fact in good faith and give it real and genuine consideration without conducting some investigation and in some cases that will entail making an inquiry of a person who is willing to provide information and is in the best position to do so. It is not a matter of natural justice but bona fide inquiry and genuine decision making.

1. The role of the Court in an application such as the present is not to determine what the trustee can or cannot do. It is not to 'second-guess' or substitute the opinion of the Court for that of the trustee. As stated by Kunc J in Re Application of NSW Trustee & Guardian:[16]
   1. ... it is not the function of the Court to order, or even just to tell, the trustee what to do. The order is permissive and not mandatory, hence it is usually in the form that the trustee "is justified" in acting in a particular way.
   2. In applying to the Court for judicial advice, the trustee is not abrogating or delegating its obligation to apply its own judgment in deciding whether to do (or not do) something in execution of the trust. The trustee must actively and honestly bring its mind to bear on any particular problem confronting it. Where necessary, it is entitled to do so with the benefit of such legal or other advice (for example, accounting, actuarial or valuation) as the trustee thinks appropriate.
2. In Owies the Court of Appeal said:[17]
   1. The constraints that are imposed on trustees also find reflection in the principles that the courts must apply in reviewing decisions of trustees, especially those that are broadly cast discretionary decisions. Those principles involve a very high degree of restraint, lest the court be seen to substitute its own decisions for those properly left to the trustee.
3. I am satisfied that in determining whether a valid transfer did or did not take place in July 2014 and whether MPG as trustee for the Brandi Family Trust remained the unitholder until the time of its deregistration in 2019, the Applicants conducted a thorough and detailed investigation. They sought information and submissions from relevant affected parties, including David Brandi and Jason Brandi, before arriving at their conclusion that a valid transfer did not take place in July 2014.
4. The determination by the Applicants that a valid transfer did not take place in July 2014 is consistent with my alternative findings at paragraphs 53(f) and 780-825 of the Trial Reasons, reproduced at paragraphs 7 and 11 above.
5. Having arrived at that position concerning the events of July 2014, the Applicants determined that Mr Landlord is entitled to hold the 60 units previously held by MPG in the PDJ Crew Trust and the 25 units previously held by MPG in the JAG Group Trust.
6. Concerning the operation of ss 601AD to 601AH of the Corporations Act 2001 (Cth), the non-confidential affidavit of Mr Carrafa states:
   1. Accordingly, given that we determined that no transfer occurred in July 2014 and in light of the comments made by Delany J in the Judgment, we accepted that when MPG was deregistered on 6 December 2019, the units vested in the Commonwealth pursuant to ss 601AD-601AH of the Act and when Mr Landlord was appointed by deed as trustee of the Brandi Family Trust with immediate effect on 16 November 2020, the trust fund vested in it as the new trustee such that Mr Landlord is entitled to the units.
7. As noted in the non-confidential affidavit of Mr Carrafa, in the Trial Reasons, relying on the decision of Mullins J in Thorne Development Pty Ltd v Thorne ('Thorne'),[18] I found:[19]
   1. The effect of cl 7.4 [of the trust deed] was that the appointment of Mr Landlord as trustee meant that the trust fund immediately vested in it without the need for any vesting, declaration, transfer, conveyance or other assurance. There was no necessity for the Commonwealth to be informed or consulted as to the appointment of Mr Landlord. As Mullins J observed in Thorne:

The power the Commonwealth has pursuant to s 601AE(1) may be used to facilitate the transfer of the trust property to the new trustee or there may be practical reasons in a particular case for notifying the Commonwealth of the appointment of a new trustee, but that does not make the transfer to, or the appointment of, the new trustee conditional on the prior consent of, or notice to, the Commonwealth.

1. The decision in Thorne was recently applied by Gardiner AsJ in Re Roberts Construction Group Pty Ltd (No 2).[20] I proceed on the basis that the statement by Mullins J continues to be good law as to notice to the Commonwealth. The Applicants are justified in proceeding on that basis.
2. It is clear from the affidavits and submissions in support of the application for judicial advice that the Applicants have given 'real and genuine consideration' to the question of who is entitled to the units in the PDJ Crew Trust and in the JAG Group Trust. Consistent with the observations by Callaway JA in Telstra Super, the Applicants made enquiries of those persons in the best position to provide information. David Brandi provided information. Jason Brandi did not. I am satisfied the Applicants arrived at their decision concerning the units in question in good faith, acting reasonably and responsibly.

1. I find the Applicants, in their capacity as trustees of the PDJ Crew Trust, are justified in determining that Mr Landlord, as trustee for the Brandi Family Trust, is entitled to be registered as the unitholder of 60 units in the PDJ Crew Trust which were previously held by MPG as trustee for the Brandi Family Trust.
2. I find that the Applicants, in their capacity as trustees of the JAG Group Trust, are justified in determining that Mr Landlord, as trustee for the Brandi Family Trust, is entitled to be registered as the unitholder of 25 units in the JAG Group Trust which were previously held by MPG as trustee for the Brandi Family Trust.

1. The Summons seeks orders for confidentiality relating to the confidential affidavit of Mr Carrafa dated 15 January 2026. Confidentiality orders have already been made and remain in operation concerning that affidavit and its exhibits. The exhibits include confidential legal advice provided to the Applicants who do not waive legal professional privilege in relation to that advice.
2. The Summons also seeks orders in relation to:

(a) the payment by the Applicants of expenses and disbursements incurred by them as receivers and managers and replacement trustees of the PDJ Crew Trust, as well as the approval of their remuneration; and

(b) that the entitlement of the Applicants to pay their legal costs and expenses of the application out of the assets and property of the PDJ Crew Trust as to 85% and out of the assets and property of the JAG Group Trust as to 15%.

1. Having read the affidavits in support and submissions relating to these issues, I will make orders in relation to the above matters in accordance with the Summons. It is unnecessary to say anything further about those aspects of the application.
2. Because there remain matters to be attended to by the Applicants relating to the administration of the trusts, including various tax issues, I will adjourn the further hearing of the Summons to 9 April 2027 with liberty to the Applicants to apply in the meantime.
3. The issues involving the trusts of which the Applicants were appointed trustee in 2023 have their roots in litigation which commenced in 2019 involving, amongst others, David Brandi and Jason Brandi. I encourage the Applicants to do what they reasonably can to expeditiously finalise all outstanding matters in relation to the trusts to which they have been appointed with the aim of ensuring these long-standing proceedings are finalised by April 2027, at the latest.

TIMELESS SUNRISE PTY LTD (ACN 126 299 634) as trustee for DAVINA FAMILY TRUST

MR. LANDLORD PTY LTD (ACN 116 921 834) as trustee for BRANDI FAMILY TRUST

BIGJ ENTERPRISES PTY LTD (ACN 084 199 084) as trustee for JASON BRANDI FAMILY TRUST

PDJ CREW PTY LTD (ACN 111 546 519) as trustee for PDJ CREW UNIT TRUST

ZIGAROO PTY LTD (ACN 006 005 401) as trustee for MK NO. 13 TRUST

JAG GROUP HOLDINGS PTY LTD (ACN 101 293 065) as trustee for JAG GROUP UNIT TRUST

TARWIN GROUP PTY LTD (ACN 107 333 817) as trustee for TARWIN GROUP UNIT TRUST

TARWIN RIVER HOLDINGS PTY LTD (ACN 107 325 762) as trustee for TARWIN RIVER HOLDINGS UNIT TRUST

PDJ CREW PTY LTD (ACN 111 546 519) as trustee for PDJ CREW UNIT TRUST

CHILDS PLAY INTERNATIONAL PTY LTD (ACN 140 794 547) trading as BRANDI & CO

[1] [2023] VSC 524.

[2] [1971] VicRp 73; [1971] VR 612.

[3] Re Atkinson (deceased) [1971] VicRp 73; [1971] VR 612, 615.

[4] [2008] HCA 42; (2008) 237 CLR 66.

[5] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66, 89-90 [58] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

[6] [2025] VSCA 146.

[7] Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524, [53].

[8] Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd [2025] VSCA 146.

[9] Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524, [780]-[781], [800]-[803], [810]‑[812], [817]-[825].

[10] Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd [2025] VSCA 146, [43]-[45].

[11] Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd [2025] VSCA 146, [85]-[86].

[12] [1998] EWHC 318; [1998] 2 All ER 705.

[13] [2022] VSCA 142, [82] (Kyrou, Niall and Walker JJA).

[14] Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] EWHC 318; [1998] 2 All ER 705, 717.

[15] Owies v JJE Nominees Pty Ltd [2022] VSCA 142, [97], quoting Telstra Super Pty Ltd v Flegeltaub (2000) 2 VR 276; [2000] VSCA 180, [30].

[16] [2014] NSWSC 423, [24]-[25].

[17] Owies v JJE Nominees Pty Ltd [2022] VSCA 142, [83].

[18] (2015) 296 FLR 334; [2015] QSC 156, [37].

[19] Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524, [873].

[20] [2025] VSC 620, [123]-[132].