Rostirolla v Fiakos (No 2) [2002] FCA 1562

Rostirolla v Fiakos (No 2) [2002] FCA 1562

The applicants failed to establish either the primary pleaded trust (for their sole benefit) or an alternative trust for their benefit above $300,000; the evidence established that any binding trust was for payment of Mrs Fiakos' debt and for specified friends who loaned money, with the balance for the applicants, and that the trust could not be varied to exclude the friends; thus, the application for a trust solely or primarily in favour of the applicants was dismissed.

Parties
First Applicant: Dayna Rostirolla; Second Applicant: Peter Rostirolla; First Respondent: Joan Fiakos; Second Respondent: Royal & Sun Alliance Financial Services Limited
Jurisdiction
Australia
Judgment Date
17 December 2002
Procedural Posture
Application / Judgment After Full Hearing
Outcome
Application dismissed
Legal Topics
Creation of Trusts, Life Insurance Proceeds, Oral Trusts, Trust Variation and Revocation, Precatory Trusts
Trusts Law Creation of Trusts Life Insurance Proceeds Oral Trusts Trust Variation and Revocation Precatory Trusts

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Parties

Dayna Rostirolla

First Applicant

Peter Rostirolla

Second Applicant

Joan Fiakos

First Respondent

Royal & Sun Alliance Financial Services Limited

Second Respondent

Procedural Posture

Application / Judgment After Full Hearing

Legal Issues

  1. 1 Whether life insurance policy proceeds were held in trust for the children of the deceased
  2. 2 Whether an oral trust existed over the policy proceeds
  3. 3 Whether the deceased reserved or exercised the power to vary or revoke the trust

Ratio Decidendi

The applicants failed to establish either the primary pleaded trust (for their sole benefit) or an alternative trust for their benefit above $300,000; the evidence established that any binding trust was for payment of Mrs Fiakos' debt and for specified friends who loaned money, with the balance for the applicants, and that the trust could not be varied to exclude the friends; thus, the application for a trust solely or primarily in favour of the applicants was dismissed.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • The proceeding is stood over for argument as to costs.