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[2026] NSWCA 69
respondent. Leave to rely on proposed grounds 6–8 was refused; leave was granted to rely on specified parts of Rosemary Tucker’s affidavit; otherwise, the amended notice of motion filed 14 April 2026 was...
The Court of Appeal dismissed Michael Di Giannantonio and Mamro’s appeal from orders enforcing a 2018 deed and approving Michael’s release of potential family provision rights. It refused to let them add new grounds alleging that Michael lacked capacity at trial: the proposed evidence could have been obtained earlier, was not sufficiently persuasive, and the trial record did not establish incapacity. The Court also held that the s 95 approval did not require a detailed valuation of every asset, that the escrow finding was within the pleaded dispute about whether the deed was binding, and that the parties’ conduct independently supported mutual assent. The appellants were ordered to pay Maria’s appeal costs on an indemnity basis.
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2,787 words · generated 08/10/2026
The appeal concerned a family dispute and a deed made after the death of Michele Di Giannantonio. Michele died on 7 September 2009. His wife, Maria, was the sole beneficiary under his 2007 Will, while his interest in the family home at Haberfield passed to her as surviving joint tenant [6]-[7].
11 cited instruments linked from this judgment.
The judgment describes a series of transfers and financial arrangements following Michele’s death. Michael caused Maria to transfer to Mamro Pty Ltd, of which he was sole director and shareholder, her interests in properties at Annandale and Leichhardt without consideration [8]. Her inherited shares in two companies became worthless after Michael established a new company that took over their marble business [9]. Maria also granted a mortgage over the Haberfield property to secure a loan taken out by Mamro [9].
After the family relationship broke down, Michael and his then partner left the Haberfield home in 2016. In 2018, after that relationship ended, Maria agreed to allow Michael to return, on the condition that he enter into a deed. Michael and Mamro signed the deed around 22 August 2018, and Maria signed it on 12 October 2018 [11]-[12].
The deed dealt with several matters, including discharging the mortgage, Michael’s right to reside at Haberfield, a future right of first refusal to buy the property, and an acknowledgement that assets transferred to Michael were an “early inheritance”. It also included a release of Michael’s potential right to apply for a family provision order against Maria’s estate [12], [44].
Maria sued in 2022 for specific performance and approval of the release under s 95 of the Succession Act 2006 (NSW). The primary judge granted relief, including approval of the release. Michael and Mamro appealed. They disputed the release approval, the finding that the deed had been delivered in escrow, and the alternative conclusion that the parties had manifested mutual assent. They also sought to add grounds alleging that Michael lacked legal capacity at the time of the 2024 trial [13], [135].
The Court of Appeal dismissed the appeal. It refused leave to add the capacity grounds and to rely on most of the proposed further evidence. It admitted only specified parts of Rosemary Tucker’s affidavit for other appeal issues. The appellants were ordered to pay Maria’s appeal costs on an indemnity basis [188].
The capacity issue turned on both the legal test and the evidence. The Court adopted the task-specific approach summarised in Mahmoud v Ghahreman: the question is whether the person could understand, evaluate and make decisions about the particular task. For litigation, the task includes understanding the issues and possible consequences of the proceeding [74]. The Court emphasised that the question is not whether a self-represented person can represent themselves well. Many people who have full legal capacity will nevertheless be poor advocates [74], [108].
The further evidence did not meet the general appellate constraints drawn from Akins v National Australia Bank. The Court considered whether the evidence could have been obtained with reasonable diligence before trial, whether it had a high probability of producing a different result, and whether it was credible [77]-[79]. The trial judge had expressly raised the possibility of appointing a tutor and allowed an application to be made. Michael’s then solicitors reported that they had sought instructions but received none to make that application [18]-[20], [79]. The Court therefore found no cogent explanation for why the material had not been put before the trial judge.
The reports also had evidentiary limitations. Ms Davidson’s interim report addressed literacy, numeracy and digital skills, rather than legal capacity generally, and was incomplete [84]-[85]. Her later reports contained qualifications about her expertise and familiarity with legal contexts [93]-[95]. Mr Wong’s report was considered insufficiently balanced in its treatment of the trial transcripts and appeared to focus substantially on whether Michael conducted the trial effectively, rather than whether he had legal capacity [105]-[109]. The Court considered the affidavits of Ms Georgievski and Mr Kumar, but found that they did not establish incapacity at the relevant time [110]-[115].
The Court then examined the 427 pages of trial transcripts. It accepted that Michael had some difficulties with memory, legal concepts and complex documents. But, viewed as a whole, the transcripts showed that he read documents aloud, questioned witnesses, responded to questions, followed explanations and adjusted his approach after rulings [120]-[124]. The Court concluded that those disadvantages did not amount to legal incapacity [124]. It also considered the prejudice and delay that would result from introducing a new factual issue that had not been tested at trial [129]-[133].
On the family provision release, the Court applied Robinson v Robinson and rejected the argument that a court must perform a detailed mathematical examination of all relevant assets and financial positions before approving a release. Section 95(4) calls for an assessment of all the circumstances, including advantage, prudence, fairness and reasonableness. It does not invariably require a comprehensive valuation exercise [141]-[144]. The primary judge had considered the benefits Michael received and the benefits he secured under the deed, including residence rights and a future right of first refusal [143], [145]. There was also some evidence of property values [146], [149].
A separate procedural point mattered: Michael and Mamro had not argued at trial that evidence of asset values or liabilities was inadequate. The Court applied the principle in Macedonian Orthodox Community Church that a party challenging a discretionary decision on appeal should ordinarily show that the primary judge’s attention was drawn to the matter said to have been overlooked, unless it was fundamental and obvious [150]-[151]. The Court declined to permit the appellants to recast their case on appeal in that way.
The deed issue involved delivery in escrow. The appellants said the escrow question had not been pleaded and that the primary judge’s finding was a “surprise”. The Court read the pleadings in context. Maria had alleged that the deed was binding, and her reply specifically alleged that Michael and Mamro executed and delivered it before Maria signed it [155]. The primary judge had also explained at the start of trial that the dispute was whether the deed was binding despite the timing and circumstances of the signatures [156]. The Court considered that the escrow analysis fell within the factual dispute already raised [157].
The Court also found that the deed was not incomplete. The objections in Maria’s solicitor’s correspondence related to form rather than missing terms, and the deed could operate once Maria signed it [158]. The parties’ intention had to be assessed from the deed and surrounding circumstances. The correspondence included an indication that Michael signed and delivered the deed despite his solicitor’s advice, and was anxious to provide it to Maria without delay. The Court considered that this supported the conclusion that Michael intended to be bound if and when Maria signed [160]-[163].
Finally, the Court upheld the alternative contractual analysis. It rejected the suggestion that formation could only be assessed by identifying a precise offer and acceptance. Citing Mushroom Composters, it treated the question as whether agreement and mutual assent could be inferred from all the circumstances [173]. The parties’ conduct, including Michael’s residence at Haberfield and the way the parties treated the deed’s provisions, supported the primary judge’s finding [174]-[183].
The judgment presents itself as an application of established principles, rather than as a change in the law.
Before this decision, the legal framework for receiving further evidence after a trial was expressed through the general considerations in Akins. The judgment restated that the evidence should ordinarily be unavailable despite reasonable diligence, should have a high probability of producing a different result, and should be credible. It also noted that these are general precepts, not inflexible rules applied mechanically in every case [77]-[78]. The decision applied those constraints to a late capacity case based on evidence that could have been gathered before trial.
For legal incapacity, the Court applied the task-specific approach set out in Mahmoud. It made clear that a person’s ability to conduct litigation is not measured by how competently they perform as an advocate. Instead, the focus is on the ability to understand, evaluate and make decisions about the proceeding and its consequences [74]. The Court’s application illustrates the distinction between difficulties with literacy or advocacy and incapacity to manage the litigation task.
For s 95 of the Succession Act, the Court followed Robinson. The relevant statutory assessment remains an evaluative one, directed to the particular release and the circumstances of the releasor. The Court rejected a requirement for detailed reasons addressing every statutory consideration or a comprehensive valuation of the estate and all interested parties’ financial positions [141]-[144]. The judgment therefore reinforces a practical, contextual assessment, while still requiring the court to consider the statutory factors.
For deeds and contract formation, the judgment applied existing principles concerning presumed delivery, intention to be bound, conditional delivery, and objective mutual assent. It considered Wardley Australia, Pittmore and Lewski on intention and delivery [159]-[162]. It also applied Mushroom Composters on the broader inquiry into whether mutual assent can be inferred, rather than requiring a precise moment of offer and acceptance [173].
The practical contribution is in the way those principles were applied together. The Court treated a conditional deed as capable of taking effect once the other party executed it, where the document was complete and the surrounding circumstances supported that intention [158]-[163]. It also treated the pleaded dispute about whether the deed was binding as broad enough to encompass the escrow analysis [155]-[167]. The decision does not state that every dispute about enforceability automatically permits an escrow finding. Its reasoning depends on the pleadings, correspondence and trial issues in this case.
At [74], the Court says legal incapacity “is always a task-specific matter”. In plain English, a person is not classified as legally incapable in the abstract for every purpose. The question is whether they could manage the particular task under consideration. Here that task was conducting litigation.
At [74] and [108], the Court distinguishes capacity from competence as a litigant. A person may struggle to run a case, understand legal language or question witnesses effectively and still have legal capacity. The legal question is not whether the person performed well, but whether they could understand and make decisions about the litigation.
At [77]-[79], the Court sets out the general Akins considerations for fresh evidence. In plain English, an appeal is not ordinarily an opportunity to present evidence that could have been gathered for trial. The evidence must also be sufficiently persuasive to have a high probability of changing the result, and its credibility matters.
At [141]-[144], the Court explains the s 95 assessment. In plain English, a judge deciding whether a release is fair and reasonable must evaluate the circumstances, but is not required in every case to calculate the precise value of every asset or compare every possible future claim in detail.
At [150]-[151], the Court addresses the way the case was run at trial. In plain English, parties who want to complain on appeal that a judge failed to consider a particular matter will generally need to show that they raised it at trial, unless it was fundamental and obvious. The appellants had not argued that the valuation evidence was inadequate when the primary judge could have addressed the issue.
At [157], the Court says that delivery in escrow fell within the factual issues raised by the pleadings. In plain English, although the pleadings did not use the technical phrase “delivery in escrow”, the parties were already disputing whether the deed became binding when Maria signed it after Michael had delivered it.
At [167], the Court distinguishes procedural assistance from legal advocacy. In plain English, a judge can assist a self-represented litigant with court process, but does not necessarily have to teach that person the substantive legal analysis that may determine the case. The Court considered that explaining escrow in more detail risked crossing that line.
At [173], the Court states that the contract inquiry does not always require pinpointing a precise offer and acceptance. In plain English, a court can infer an agreement from what the parties said, signed and did, considered objectively and in context.
The decision is relevant to disputes where a party seeks to introduce new evidence on appeal about a litigant’s capacity during a completed trial. It highlights the importance of whether the evidence was available, or could reasonably have been obtained, before trial. It also shows that contemporaneous court records and transcripts can be important evidence of a person’s ability to understand proceedings, respond to explanations and make decisions [79]-[82], [120]-[124].
It is particularly relevant where a litigant was self-represented. The judgment warns against treating ineffective advocacy, difficulty with legal terminology or imperfect performance as equivalent to incapacity [74], [108]. It also addresses the situation where a trial judge raises the possible need for a tutor, but no application follows. That procedural history weighed against allowing the capacity issue to be introduced for the first time on appeal [18]-[21], [129]-[133].
The s 95 reasoning is relevant where a party argues that approval of a family provision release was invalid because the evidence did not establish exact values for all assets, liabilities or parties’ financial positions. The judgment indicates that the statutory decision is evaluative and contextual, and that the adequacy of evidence should be raised at trial if it is said to be material [141]-[151].
The deed reasoning may be relevant where one party signs and delivers a deed before the other party signs, and the dispute concerns whether the first signature immediately bound the signatory or was conditional on later execution. The Court’s analysis depends on the deed being complete and the circumstances supporting an intention to be bound once the stated condition was satisfied [158]-[163].
The procedural fairness discussion is relevant where a self-represented litigant says the judge decided the case on a technical legal characterisation not expressly named in the pleadings. The decision focuses on whether the substance of the issue was already within the pleaded dispute and whether the parties had a fair opportunity to address it [155]-[167].
The judgment was delivered on 28 April 2026. The supplied text does not identify any later decisions considering or applying Di Giannantonio by his tutor Tucker v Di Giannantonio. It therefore does not provide a basis for describing subsequent judicial treatment, whether by adoption, limitation or distinction.
The judgment does, however, identify the earlier authorities it applied or considered. Mahmoud v Ghahreman supplied the task-specific capacity approach [74]. Akins provided the general fresh-evidence considerations [77]-[82]. Robinson informed the approach to s 95 approval [141]-[144]. Macedonian Orthodox Community Church supplied the appellate principle concerning discretionary matters not raised at trial [150]-[151]. Wardley Australia, Pittmore and Lewski informed the deed-intention analysis [159]-[162], while Mushroom Composters informed the objective mutual-assent analysis [173].
Those citations show how the Court positioned its reasoning within existing law; they do not establish how later courts have treated this judgment itself.
The judgment does not decide how the task-specific capacity test should operate in every kind of proceeding, or what evidence would be sufficient in a case with different medical, functional or contemporaneous material. It assesses the evidence in this particular record, especially the expert reports and transcripts of a six-day trial [82]-[125].
Nor does it set a universal evidentiary checklist for s 95 applications. It holds that detailed valuation analysis is not invariably required, but still assesses the evidence and circumstances in this case, including benefits received and the purposes served by the deed [143]-[149]. The decision does not say that asset values or financial positions are irrelevant in every release application.
The escrow reasoning also leaves fact-sensitive questions. The Court found that this deed was complete and that the correspondence supported conditional intention to be bound. It does not establish that any deed signed by one party and later signed by another is delivered in escrow. The intention must be assessed from the document and the circumstances [158]-[163].
Finally, the Court did not determine ground 17 concerning refusal of leave to file a stay motion because it had no utility and would not affect the appeal’s disposition [185]. Ground 5 concerning costs below also fell away because the appellants did not succeed on appeal [186]. The judgment therefore does not resolve those issues on their substantive merits.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Di Giannantonio by his tutor Tucker v Di Giannantonio [2026] NSWCA 69
Hearing dates: 13 April 2026
Date of orders: 28 April 2026
Decision date: 28 April 2026
Before: Ward P at [1]
Free JA at [2]
Griffiths AJA at [3]
Decision: 1. Refuse leave for the appellants to rely upon proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.
2. Grant the appellants leave to rely upon paragraphs 4-7, 20, and 22 of, and pages 88 and 95-97 of the annexures to, the affidavit affirmed by Rosemary Tucker on 22 January 2026.
3. Otherwise dismiss the amended notice of motion filed 14 April 2026.
4. Dismiss the appeal.
5. Dismiss the notice of motion filed 12 December 2025 insofar as it relates to proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.
6. Appellants pay the respondent’s costs of and incidental to the appeal on an indemnity basis.
Catchwords: SUCCESSION — Family provision — Approval of release — Whether release is “fair and reasonable” under s 95(4)(c) of the Succession Act 2006 (NSW) — Evidence of value of assets and liabilities of deceased estate and relevant parties
CIVIL PROCEDURE — Parties — Persons under legal incapacity — Application to adduce further evidence on appeal to support legal incapacity — Application refused
CONTRACTS — Formation — Deeds — Whether deed was delivered in escrow — Whether primary judge erred in finding that deed was delivered in escrow when issue not raised in terms by the parties — Whether deed was incomplete — Intention to be bound by deed on condition that deed becomes effective only upon execution by other party — Mutual assent to be bound by terms of the deed
Legislation Cited: Contracts Review Act 1980 (NSW)
Real Property Act 1900 (NSW) s 74MA
Succession Act 2006 (NSW) s 95
Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) rr 7.13, 7.14, 7.18
Cases Cited: Aardwolf Industries LLC v Tayeh [2020] NSWCA 301
Akins v National Australia Bank (1994) 34 NSWLR 155
Chalik v Chalik [2025] NSWCA 136
Fisher v Westpac Banking Corporation (1993) 43 FCR 385
Fraser v Moxham [2006] NSWSC 346
French v Bremner [2020] NSWCA 299
Hamod v State of New South Wales [2011] NSWCA 375
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lewski v Australian Securities & Investments Commission (No 2) (2017) 352 ALR 64; [2017] FCAFC 171
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Mahmoud v Ghahreman [2026] NSWCA 52
Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1
Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4
Smith v The Council of Trinity Grammar School [2022] NSWCA 93
Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403
Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500
Texts Cited: Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press)
Category: Principal judgment
Parties: Michael Di Giannantonio by his tutor Rosemary Tucker (First Appellant)
Mamro Pty Ltd (Second Appellant)
Maria Di Giannantonio (Respondent)
Representation: Counsel:
M Auld (Appellants)
L Livingston SC with H Cooper (Respondent)
Solicitors:
Carlisle Attorneys (Appellants)
De Pasquale Lawyers (Respondent)
File Number(s): 2025/00178016
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
This appeal is from the judgment and orders of Williams J in Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346 (primary judgment or PJ). The proceedings arise from matters that transpired over the course of ten years following the death of Michael’s father, Michele in 2009. He was survived by his wife, Maria and by his four children, Daniela, Paula, Adriana and the first appellant, Michael. Maria was the sole beneficiary of Michele’s estate under his last Will dated 11 July 2007.
Shortly after Michele’s death, Michael caused Maria to transfer to Mamro Pty Ltd (the second appellant) for no consideration the whole of her interest in properties located in Annandale and Leichhardt which she inherited under Michele’s Will. Michael is the sole director and shareholder of Mamro. The shares Maria inherited in Finewest Holdings Pty Ltd and MTP Marble & Granite Pty Ltd soon became worthless after Michael established a new company, MTP Marble Granite Sandstone Pty Ltd, which took over the marble business conducted by those other companies. Moreover, while Maria retained her interest in the family home in Haberfield, which passed to her as the surviving joint tenant by right of survivorship, she granted a mortgage over that property to secure a loan taken out by Mamro. Shortly after these events, Maria and Michael fell into dispute, resulting in Michael vacating the family home in Haberfield.
In May 2018, following the breakdown of the relationship between Michael and his then partner Melanie, Maria agreed to allow Michael to return to live with her at the Haberfield property on the condition that Michael enter into a deed. After extensive negotiations between the parties’ respective lawyers, a deed was signed by Michael and Mamro and later, by Maria (the 2018 Deed).
In 2022, Maria commenced the proceedings below seeking specific performance of the 2018 Deed and an order under s 95 of the Succession Act 2006 (NSW) approving the release by Michael of any right to apply for a family provision order against Maria’s estate following her death. Maria ultimately succeeded in obtaining this and other relief.
By a notice of motion filed 20 March 2026 and later amended on 14 April 2026 (amended 20 March Motion), Michael and Mamro sought to adduce further evidence on appeal, largely for the purpose of supporting proposed grounds 6-8, which concerned Michael’s legal capacity during the period of the trial (the capacity issue).
The remaining grounds of appeal are as follows. In grounds 1-4, Michael and Mamro argued that the primary judge erred in granting the release under s 95 of the Succession Act (the release issue). In grounds 9-13, it was contended that the primary judge erred by finding that the 2018 Deed was delivered by Michael in escrow without that issue being raised by the parties (the so-called “surprise rule” and procedural fairness issue). Grounds 14-16 concerned whether the primary judge erred in finding that the parties were bound by the 2018 Deed on the basis that they had manifested their mutual assent to its terms (the mutual assent issue). In ground 17, Michael and Mamro argued that the primary judge erred in refusing leave to file a notice of motion seeking a stay of the enforcement of part of the final orders (the stay application issue).
The Court (Griffiths AJA, Ward P and Free JA agreeing) refusing the application to adduce further evidence and the application to add proposed grounds 6-8, held:
As to the application to adduce fresh evidence:
Akins v National Australia Bank (1994) 34 NSWLR 155 applied.
As to grounds 6-8 (the capacity issue):
Mahmoud v Ghahreman [2026] NSWCA 52 applied.
The Court (Griffiths AJA, Ward P and Free JA agreeing) dismissing the appeal, held:
As to grounds 1-4 (the release issue):
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 applied.
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 applied.
As to ground 5 (costs below):
As to grounds 9-13 (the so-called “surprise rule” and procedural fairness rule):
Hamod v New South Wales [2011] NSWCA 375; Chalik v Chalik [2025] NSWCA 136 considered.
Fisher v Westpac Banking Corporation (1993) 43 FCR 385 considered.
Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500; Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 considered.
As to grounds 14-16 (the mutual assent issue):
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 applied.
As to ground 17 (the stay application):
WARD P: I agree with the comprehensive reasons of Griffiths AJA and with the orders his Honour proposes.
FREE JA: I agree with Griffiths AJA.
GRIFFITHS AJA:
(A) The trial and the primary judgment summarised
(a) The conduct of the trial
(b) The primary judgment summarised
(i) Did the parties mutually agree to be bound by the 2018 Deed?
(ii) Is the 2018 Deed liable to be set aside as unconscionable or on the basis of the alleged undue influence of Maria’s daughters?
(iii) Is the 2018 Deed liable to be set aside under the Contracts Review Act 1980 (NSW)?
(iv) Have Michael and Mamro elected to affirm the 2018 Deed or are they estopped from alleging that it is void or unenforceable?
(v) Michael’s claim to a proprietary interest in the Haberfield property
(vi) The parties’ competing claims for declaratory relief
(vii) Maria’s application for an order for withdrawal of the caveat
(viii) Should an order be made for specific performance of the 2018 Deed?
(ix) Maria’s application for approval of the release in cl 8 of the 2018 Deed pursuant to s 95 of the Succession Act 2006 (NSW)
(x) Costs
(B) The appeal
(a) Procedural history
(b) Determination of the amended 20 March Motion filed 14 April 2026
(i) The application to adduce further evidence
Legal principles relating to legal incapacity summarised
Principles relating to adducing further evidence on appeal summarised
Ms Davidson’s three reports
Mr Wong’s report
Ms Georgievski’s affidavit affirmed 16 March 2026
Mr Kumar’s affidavit
Parts of Ms Tucker’s affidavit
What the trial transcripts reveal regarding Michael’s legal capacity
(ii) Should leave be granted to add proposed grounds 6-8?
(c) Determination of the remaining grounds of appeal
(i) The release issue (grounds 1-4)
(ii) The so-called ‘surprise rule’ and procedural fairness issue (grounds 9-13)
(iii) The mutual assent issue (grounds 14-16)
(iv) The stay application issue (ground 17)
(v) Costs below (ground 5)
(vi) Costs of the appeal
(C) Conclusion
This appeal is from the judgment and orders of Williams J in Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346 (primary judgment or PJ). The first and second appellants, Mr Michael Di Giannantonio and Mamro Pty Ltd (some names are abbreviated for convenience and without disrespect), initially sought leave to appeal “out of an abundance of caution” when there was a dispute between the parties as to whether the appeal involved a “right amounting to or of the value of $100,000 or more”: Supreme Court Act 1970 (NSW), s 101(2)(r)(ii). However, this dispute was overtaken by the amended notice of appeal that Michael and Mamro sought leave to file and serve in their notice of motion dated 12 December 2025, which raised eleven new grounds of appeal. In submissions dated 27 January 2026 which were filed pursuant to McHugh JA’s orders on 15 December 2025, the respondent, Mrs Maria Di Giannantonio (who is Michael’s mother), conceded that the expanded scope of the appeal under the amended notice of appeal meant that “the monetary limit is exceeded and no leave to appeal is required”. That concession was well made.
Michael and Mamro subsequently added a further ground of appeal in an amended notice of appeal dated 30 January 2026. It is common ground that Michael and Mamro require leave to rely on proposed grounds 6-8, which all relate to the question of whether or not Michael had legal capacity at the time of the trial. It may be noted that Michael had a tutor for the purposes of the appeal proceedings but not at the trial even though the matter was raised by the primary judge. It will be necessary later in these reasons to elaborate on these events.
The proceedings arise from matters that transpired over the course of ten years following the death of Michael’s father, Mr Michele Di Giannantonio on 7 September 2009. He was survived by his wife, Maria and by his four children, Daniela, Paula, Adriana and the first appellant, Michael.
Maria was the sole beneficiary of Michele’s estate under his last Will dated 11 July 2007. At the time of his death, Michele’s estate included a half share in a property at Annandale, a half share in a property at Leichhardt, shares in Finewest Holdings Pty Ltd and MTP Marble & Granite Pty Ltd, as well as two apartments in Rome. Michele’s interest in the family home in Haberfield passed to Maria as the surviving joint tenant by right of survivorship.
Shortly after Maria inherited those assets, Michael caused her to transfer to Mamro for no consideration the whole of her interest in the Annandale and Leichhardt properties. Michael is the sole director and shareholder of Mamro.
The shares Maria inherited in Finewest and MTP Marble & Granite soon became worthless after Michael established a new company, MTP Marble Granite Sandstone Pty Ltd, which took over the marble business conducted by those other companies. Moreover, while Maria retained the Haberfield property, she granted a mortgage over that property to secure a loan taken out by Mamro to fund the purchase of a quarry at Maroota, New South Wales.
(a) the discharge of the mortgage over the Haberfield property securing the debt of Mamro before 2 October 2020; (b) a right for Michael to reside at the Haberfield property; (c) an agreement by Maria that within 60 days from the date of the 2018 Deed, she would instruct her lawyers to amend her Will to grant Michael a right of first refusal to purchase the Haberfield property on her death on reasonable terms; and (d) an acknowledgement by Michael that Maria had transferred to him her interests in the Annandale and Leichhardt properties and her shares in Michele’s business, for no consideration, by way of an “early inheritance”, as well as a release by Michael of any right to apply for a family provision order against Maria’s estate following her death.
In 2022, Maria commenced proceedings seeking specific performance of the 2018 Deed and an order under s 95 of the Succession Act 2006 (NSW) approving the release of Michael’s right to apply for a family provision order. Maria ultimately succeeded in obtaining this and other relief.
Before summarising the primary judgment, it is necessary to say something at a little length about the conduct of the trial, with particular reference to the issue of Michael’s legal capacity and the circumstances in which he came to represent both himself and Mamro commencing on the first day of the six day trial.
From at least October 2021 (when Michael lodged a caveat over the Haberfield property) until shortly before the trial commenced on 26 August 2024, the appellants were jointly represented by Clayton Utz: see PJ [20]. At no time during this period was there any suggestion that Michael required a tutor. Following Clayton Utz ceasing to act on 11 July 2024 (ie approximately six weeks before the commencement of the trial), a notice of appointment of solicitor was filed on 21 August 2024 appointing Mr Peter McCrohon of CharterLaw Pty Ltd as the appellants’ solicitor, “for the purpose only of an application to adjourn the hearing of the proceedings”.
That application was heard by the primary judge on Friday 23 August 2024, shortly before the trial was scheduled to commence the following Monday. The appellants were represented by Mr Ipp of counsel. Amongst the evidence in support of the adjournment application, the appellants sought to tender an interim report dated 22 August 2024 by a literary and numeracy teacher (Ms Fran Davidson). The proposed tender was rejected by the primary judge, essentially because of its late service, it being incomplete and the prejudice to Maria not being able to test its contents.
The primary judge ultimately rejected the adjournment application for various reasons, including the absence of any evidence that Michael had attempted to retain new solicitors to replace Clayton Utz for the trial.
Importantly, in light of Mr Ipp’s claim that Michael had limited cognitive capacity, on 23 August 2024 her Honour proactively granted leave to the appellants to make an application for the appointment of a tutor for Michael. Her Honour added that there was nothing preventing Maria from making such an application. Her Honour emphasised that she had not formed any view about the matter, and that if such an application were made and acceded to, she would explore the possibility of the substantive hearing proceeding, with any necessary adjustments, such as delaying the start of the trial.
On the afternoon of 23 August 2024, the appellants’ solicitors (CharterLaw) emailed the primary judge’s associate confirming that, consistently with the limits of their retainer, they would cease to act. Critically, this email then referred to the primary judge having raised the possibility of an application to appoint a tutor for Michael. The email stated: “We have sought instructions in this regard and no instructions have been given to make such an application”.
Accordingly, the hearing commenced on 26 August 2024 with Michael representing both himself and Mamro.
This background shows that there was no material before the primary judge which was capable of supporting the conclusion that Michael was “under legal incapacity”. The primary judge, out of an abundance of caution, raised the matter with Michael’s then legal representatives and gave them an opportunity, on instructions from Michael, to make such an application. But Michael, through his solicitors, expressly disavowed it and elected with proceeding to the hearing.
The primary judgment is comprehensive and thoroughly reasoned: it totals 389 paragraphs.
It is convenient to summarise her Honour’s reasons for upholding Maria’s claims by reference to the following ten topics as identified by the primary judge at PJ [330]. Not all the topics arise on the appeal.
In her statement of claim filed 28 January 2022, Maria pleaded that the parties entered into the 2018 Deed on 12 October 2018. The primary judge noted at PJ [312] that, in their defence, Michael and Mamro denied that the 2018 Deed was enforceable. This was on the basis that, prior to Maria executing the document on 12 October 2018, her solicitors advised the solicitors for Michael and Mamro on 23 August 2018 that they were “unable to accept” the document (which had been executed by Michael and Mamro on or around 22 August 2018) and that “the matter needs to be resolved” (see [7] of the amended defence).
The primary judge noted at PJ [313] that Maria denied that her solicitors’ response meant that the document was unenforceable. In her amended reply filed 15 November 2022, Maria joined issue with the defendants’ amended defence and said further in reply to [7] of that document that, on or following execution of the 2018 Deed, the parties manifested their mutual assent to it such that it was binding and enforceable. Alternatively, Maria claimed that the parties affirmed the 2018 Deed by their conduct and that, in any event, the defendants were also precluded by promissory or conventional estoppel from alleging that the 2018 Deed was unenforceable and void.
The primary judge noted further at PJ [332] that Maria contended that her solicitor’s response dated 23 August 2018 did not constitute a rejection by her of an offer by Michael and Mamro to enter into a deed on the terms of the fifth draft which they had executed, because the objection related only to the form of the document.
The primary judge observed that the parties’ respective positions concerning whether the 2018 Deed was binding and enforceable were expressed in terms of offer and acceptance, a contractual analysis which her Honour said failed to grapple with the fact that the document is a deed: PJ [333].
This led to her Honour’s ultimate conclusion that Michael and Mamro had delivered the 2018 Deed in escrow on 23 August 2018, with the condition that it would come into effect only when it was executed by Maria. This reasoning is reflected at PJ [336]:
By his conduct in providing the executed deed to Maria on 23 August 2018, Michael delivered the 2018 deed to Maria on behalf of himself and Mamro. I have inferred from the history of the negotiations prior to Michael’s execution of the deed, and his conduct in executing the deed incorporating his final amendments contrary to his solicitor’s advice to negotiate those amendments, that Michael executed and provided the deed to Maria on 23 August 2018 with the intention of presenting those final amendments to Maria as a fait accompli. I infer that Michael’s objective in doing so was to pressure Maria to accept those final amendments. In my opinion, Michael thereby evinced an intention that he and Mamro would be immediately bound by the 2018 deed on those terms, subject to the condition that it would not become effective until Maria executed it. I infer from Michael’s history of successfully pressuring Maria to bend to his will, and refusing to accede to Maria’s will, that he would not have provided the executed 2018 deed to Maria at all if he had not intended to be immediately bound, and that he was confident that Maria would eventually yield by signing the 2018 deed on his terms. As the sole director of Mamro, Michael’s state of mind is attributable to the company. Thus, the 2018 deed was delivered by Michael and Mamro in escrow on 23 August 2018. The escrow condition was that the 2018 deed would only be effective when Maria executed it, there being no power for Michael and Mamro to recall it in the meantime.
Her Honour’s finding that there was an escrow condition is the subject of grounds 9-13 of the amended notice of appeal.
It should also be noted, however, that the primary judge proceeded to find that, even if the 2018 Deed was not effective as a deed binding all three parties from 12 October 2018, the parties manifested their mutual assent to the terms of the 2018 Deed by their conduct in signing it and their conduct thereafter (see at PJ [338]). Thus there is an alternative basis for the primary judge’s finding that the 2018 Deed was binding and enforceable.
(1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.
(2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order.
(3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person.
(4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether—
(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and
(b) it is or was, at that time, prudent for the releasing party to make the release, and
(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and
(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.
(5) In this section—
release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to—
(a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and
(b) an agreement to execute such an instrument.
(a) Michael acknowledges and agrees that Maria agreed to transfer her interest in the properties known as 44-46 Moore Street Leichhardt … and the property known as 151-153 Parramatta Road Annandale … to him along with the transfer of her shares in the company known as MPT Marble & Granite Pty Ltd … and Finewest Holdings Pty Ltd … without receiving any consideration for those assets. Michael further acknowledges that the transfer of the assets referred to above was an early distribution of his inheritance that Maria intended to distribute to him from her estate on her death (“Early Inheritance”).
(b) Michael acknowledges that Maria’s intention is that her other three (3) children, Paula, Adriana and Daniella [sic – Daniela] will inherit the Haberfield Property to the exclusion of Michael as a result of receiving his Early Inheritance.
(c) Subject to the approval of the Court pursuant to Section 95 of the Succession Act, Michael releases Maria in relation to his rights to make an application pursuant to the Succession Act 2006 (NSW) for provision with respect to the Haberfield Property, estate or notional estate of Maria in the event that she becomes a deceased person for the purposes of the Succession Act (“the release”).
(d) Michael hereby acknowledges and agrees to the following with respect to Maria’s estate:
(i) that it is available to Maria pursuant to Section 95 of the Succession Act to have the release approved by the Supreme Court of New South Wales;
(ii) Maria may at any time do all acts and things, make all applications and sign all documents necessary to give effect to the release and to obtain the approval of the Court to the release pursuant to Section 95 of the Succession Act;
(iii) That the making of the agreements referred to in this Deed and the receipt of his Early Inheritance was financially advantageous to Michael given the capital gains and revenue that he has received the benefit of;
(iv) that it is prudent for Michael to give a release on Maria’s Estate due to his acceptance of the benefit of the Early Inheritance;
(v) the terms of this release are fair and reasonable given the terms of this Deed and the Early Inheritance received by Michael and the benefit that he has derived from receiving the Early Inheritance;
(vi) Michael has received independent legal advice or waived his right to independent legal advice in relation to:
(A) the effect of giving the release contained in this Deed on their respective rights under the Succession Act;
(B) the advantages and disadvantages to him of giving the release contained in this Deed; and
(C) after receiving that advice or waiving his right to receive that advice, he has freely and voluntarily signed this deed.
(vii) to not oppose or otherwise interfere with any application for a release under section 95 of the Succession Act 2006 (NSW) or any other judicial body in any other jurisdiction that Maria may make with respect to an approval for a release of his rights with respect to her estate; and
(viii) if any application is made by Maria or her Estate pursuant to section 95 of the Succession Act 2006 (NSW), Michael shall do all things necessary including signing all documents to give effect to a s. 95 release either by Maria or her Executors and otherwise obtain the approval of the court of any such release.
… the provisions of the 2018 deed, including the release, were fair and reasonable at the time the deed was made, both to Michael who had received extensive financial support and significant assets with considerable value by way of early inheritance and to Maria who wanted to leave her remaining asset to her other three children.
5.1 In the event Michael and Mamro have not discharged the Haberfield Mortgage and otherwise complied with their obligations under this Deed, this shall constitute an event of default and the following provisions shall apply:
…
(c) Michael and Mamro shall indemnify and keep Maria indemnified against all costs, fees, charges, expenses or liabilities incurred by Maria as a result of the default, including without limitation fees, charges or expenses associated with Maria exercising her power as attorney including legal costs and disbursements on an indemnity basis.
On 10 July 2025, Michael and Mamro filed a summons seeking leave to appeal.
On 11 July 2025, a consent by Ms Rosemary Tucker to act as Michael’s tutor was filed.
On 18 August 2025, the Registrar made case management orders.
On 8 October 2025, in circumstances where the appellants were in default, the Registrar made amended case management orders.
On 14 November 2025, the Registrar listed the matter for further directions on 19 November 2025.
On 19 November 2025, the Registrar made further case management orders which reflected the appellants’ ongoing default.
On 5 December 2025, Maria filed a notice of motion (5 December Motion) seeking the following orders:
1. Pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005, the proceedings be dismissed for want of due despatch.
2. Costs on an indemnity basis.
3. Any other order this Honourable Court deems fit.
On 8 December 2025, the Registrar made case management orders and listed the 5 December Motion for hearing on 15 December 2025. The summons seeking leave to appeal was listed for further directions on 2 February 2026.
On or around 10-11 December 2025, the appellants attempted to file a notice of motion before the primary judge in the proceedings numbered 2022/00025305 seeking a stay of the final orders dated 11 April 2025 relating to costs. In support of that proposed motion, the appellants sought to rely upon Ms Davidson’s interim report (see at [16] above), two reports by a psychologist, Mr Andrew Wong, and an affidavit affirmed by Mr Paveen Kumar on 4 July 2025.
On 11 December 2025, Williams J’s associate informed the parties that, in Chambers, the primary judge refused leave to file the proposed motion and supporting affidavits on the grounds that final orders had been made on 11 April 2025 and the Court lacked jurisdiction, particularly in circumstances where the appellants had commenced proceedings in the Court of Appeal. The primary judge’s ruling is challenged by ground 17 of the amended notice of appeal.
On 12 December 2025, Michael and Mamro filed a notice of motion (12 December Motion) seeking the following orders:
1. Pursuant to section 64 of the Civil Procedure Act 2005, the appellants be granted leave to file an amended notice of appeal substantially in the form annexed to the affidavit of [Ms] Rosemary Tucker sworn 12 December 2025.
2. Costs.
1. The Notice of Motion filed on behalf of the appellants on 12 December 2025 be stood over to the Registrar of the Court of Appeal on 2 February 2026.
2. The appellants are to file written submissions not exceeding 5 pages in length in support of that application by 4pm on 22 January 2026 and the respondent is to file and serve submissions in response not exceeding 5 pages in length by 4pm on 27 January 2026.
3. Direct the appellants to file and serve by 4pm on Thursday, 29 January 2026 any Notice of Motion with respect to adducing further or fresh evidence, and any evidence in support of that application (including the further or fresh evidence to be adduced).
4. Stand over any notice of motion filed pursuant to order 3 above to the concurrent hearing in these proceedings.
5. Direct the appellants to file and serve by 4pm on Thursday, 29 January 2026 written submissions and a chronology substantially in accordance with UCPR 51.34, such submissions to include the appellants’ argument in support of any notice of motion filed pursuant to order 3 above. Those submissions should also address the appellants’ argument on the assumption (without prejudice to the respondent’s right to oppose the amendment) that the amendment to the notice of appeal is granted.
6. The respondent’s notice of motion filed on 5 December 2025 be stood over to Registrar of the Court of Appeal on 2 February 2026.
7. Order pursuant to Item 7 of Part 3 of the Schedule of the Delegation to Registrars under s 13 of the Civil Procedure Act 2005 (NSW) made by the Chief Justice on 28 November 2022 that there be referred to the Registrar of the Court of Appeal the matter referred to in order 6 above, including the power to dismiss the proceedings or make such other order as the court thinks fit conferred by UCPR 12.7 and 51.1.
8. The costs of today are reserved.
On 2 February 2026, the Registrar granted the appellants leave to amend the draft notice of appeal by adding proposed grounds 9 to 16, but otherwise stood over the 12 December Motion to the concurrent hearing in this Court on 13 April 2026.
On 20 March 2026, Michael and Mamro filed a notice of motion seeking the following relevant orders (20 March Motion):
1. Pursuant to section 64 of the Civil Procedure Act 2005, the appellants be granted leave to file an amended Notice of Appeal substantially in the form annexed to the affidavit of Rosemary Tucker sworn 12 December 2025. Rosemary Tucker be appointed as Tutor to Michael di Giannantonio in case number 2022/0025305;
2. An Order that the Applicant/Appellant be granted leave to file and serve the Amended Notice of Appeal, a copy of which is annexed hereto and marked with the letter "A";
3. An Order that the Applicant/Appellant be granted leave to adduce the following fresh evidence upon appeal:
a) affidavit affirmed by Fran Davidson on 28 January 2026
b) Affidavit affirmed by Demi Georgievski on 16 March 2026;
b) Affidavit affirmed by Fran Davidson on 18 March 2026 …
On 23 March 2026 and 30 March 2026, the Registrar made additional case management orders relating to the concurrent hearing listed for 13 April 2026, including the hearing of the 5 December Motion, 12 December Motion and 20 March Motion.
At the outset of the hearing of the appeal, Mr Auld, who appeared for both Michael and Mamro, conceded that insofar as there was anything extant in the 12 December Motion, it should be dismissed. Mr Livingston SC, who appeared together with Mr Cooper for Maria, confirmed that the 5 December Motion was no longer pressed and should be dismissed. An order to that effect was made on the day.
Mr Auld also sought leave to amend the 20 March Motion so as to seek leave to adduce the following further evidence on the appeal (in addition to the three affidavits previously identified in the 20 March Motion, namely the two affidavits affirmed by Ms Fran Davidson on 28 January 2026 and 18 March 2026 respectively, as well as the affidavit of Ms Demi Georgievski affirmed on 16 March 2026):
(a) affidavit of Mr Kumar affirmed 4 July 2025; (b) affidavit of Ms Davidson affirmed 4 November 2025; (c) affidavit of Mr Wong affirmed 4 December 2025; and (d) parts of an affidavit of Ms Tucker affirmed 22 January 2026 (namely, [4]-[7], [22] and pages 95-97 of the annexures).
The Court directed the appellants to provide an amended 20 March Motion by 2pm on 13 April 2026, being the scheduled time for the hearing of the appeal to resume after the luncheon adjournment.
Following the luncheon adjournment, Mr Auld handed up a proposed amended 20 March Motion. After confirming that the appellants pressed ground 17 of the amended notice of motion (which relates to the primary judge’s refusal to allow the appellants to file the proposed notice of motion and supporting affidavits seeking to stay the Court’s final orders dated 11 April 2025 relating to costs), the Court invited Mr Auld to identify the relevant material in the Blue Book relating to this ground. He was unable to do so. Mr Auld acknowledged that the 20 March Motion needed to be further amended so as to rely upon additional parts of Ms Tucker’s affidavit, namely [20] and page 88 of the annexures. The Court revoked leave to file the notice of motion handed up and directed that a copy of the proposed amended 20 March Motion be provided by 5pm on 13 April 2026.
The following day, on 14 April 2026, the appellants filed an amended 20 March Motion which differed from the 20 March Motion handed up the previous day in that leave was now also sought to rely on [20] of Ms Tucker’s affidavit and pages 95-97 of the annexures thereto (in addition to [4]-[7] and [22] of the affidavit and page 88 of the annexures). The amended 20 March Motion sought to rely upon Ms Demi Georgievski’s affidavit affirmed 16 March 2026, but did not include any reference to an earlier affidavit affirmed by her on 22 January 2026. Although Mr Auld said during the course of the hearing that Ms Georgievski’s earlier affidavit was also relied upon, this appears to be an error because there is no reference to that affidavit in the amended 20 March Motion.
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
A “person of legal incapacity” is defined in r 7.13 of the UCPR as “a person who is incapable of managing his or her affairs”.
It is convenient to summarise some of the relevant legal principles concerning legal incapacity. Many of those principles were helpfully set out recently by Kirk JA (Mitchelmore JA and Griffiths AJA agreeing) in Mahmoud v Ghahreman [2026] NSWCA 52 at [23]-[31] which may be summarised as follows:
(a) There is a presumption that a person of full age is capable of managing their affairs and a person asserting incapacity carries the burden of making good the claim (at [26]). (b) The question is not whether the person is able to manage his or her affairs in general because whether a person is under a legal incapacity “is always a task-specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question” (at [28]). (c) As is the case here, the task or affair which had to be managed is the conduct of litigation, which involves the ability to understand, evaluate and make decisions about the issues involved in and the possible consequences of the conduct of the proceeding (at [29]). (d) Where a person is self-represented, the level of capacity required will commonly be somewhat greater than that which is required to instruct a lawyer (at [30]). (e) Importantly, the relevant question is not whether a litigant in person has the ability to represent themselves well. Many self-represented litigants lack that ability but have full legal capacity (at [30]). (f) The Court must itself determine whether a person has legal capacity or not. Medical evidence is always likely to be of assistance where it is available but it is not determinative. The Court can take account of what it has observed (at [31]).
It is also convenient to outline the relevant principles which guide the Court’s power to grant leave for further evidence to be adduced on appeal.
Section 75A(8) of the Supreme Court Act provides that “where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds”.
In Akins v National Australia Bank (1994) 34 NSWLR 155 at 159, Clarke JA (Sheller JA agreeing) stated that:
Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.
Although these conditions are “general precepts, rather than essential conditions to be applied as rules in every case ... they reflect longstanding discretionary constraints associated with the power to admit further evidence on ‘special grounds’”: French v Bremner [2020] NSWCA 299 at [7] (Leeming JA and Emmett AJA).
As to the first condition in Akins, the further evidence now sought to be adduced relating to the issue of Michael’s legal capacity is of a kind which could have been obtained with reasonable diligence prior to the hearing below. It could have been obtained by Michael and/or Mamro prior to the trial had they, or their lawyers then representing them, wished to make an application for a tutor to be appointed. No cogent reason has been given as to why this evidence could not have been adduced at trial, especially in circumstances where the primary judge expressly granted Michael an opportunity to do so and his then solicitor confirmed that, having sought instructions on the matter, no such instructions had been given (see at [18]-[19] above).
It may also be inferred that although Michael’s then-solicitor (CharterLaw) approached Ms Davidson in August 2024 to provide an expert report on Michael’s reading, writing and comprehension skills, this was done on the express basis of obtaining evidence to support an application to adjourn the hearing of the trial. No issue was evidently raised regarding Michael’s legal capacity more generally. It may reasonably be inferred that neither Clayton Utz (who acted for Michael from at least October 2021 up until 11 July 2024), nor CharterLaw, had any concern regarding Michael’s fundamental legal capacity.
It appears that it was only after final orders had been made by the primary judge on 11 April 2025 that the new solicitor representing Michael (Mr Carlisle from Carlisle Attorneys) expressed concerns regarding Michael’s legal capacity. Thus, it was on 6 July 2025 that Mr Carlisle sent an initial letter of instruction to Mr Wong seeking a psychological assessment of Michael’s capacity to understand the nature of the legal proceedings, retain relevant information and make informed decisions about litigious matters relating to his capacity to run the trial which commenced the previous year on 26 August 2024 and his current capacity to conduct a legal trial. It was in these circumstances that, on or around 10-11 December 2025, an attempt was made to file a notice of motion with the primary judge seeking a stay of her Honour’s final orders relating to costs, supported by the affidavits of Mr Kumar, Ms Davidson’s interim report and two expert reports of Mr Wong dated 18 November 2025 and 3 December 2025. As noted at [59] above, the primary judge refused leave for this material to be filed.
Turning to the second condition in Akins, it is necessary to address each of the affidavits the subject of the amended 20 March Motion filed 14 April 2026 in explaining why I consider that none is such, either individually or collectively, as to give rise to a high degree of probability that, if now admitted into evidence, the Court would conclude that Michael lacked legal capacity at the time of the trial.
Ms Davidson is an adult literacy and numeracy teacher. She holds a Bachelor of Business Administration (Marketing) from the University of South Australia and a Graduate Diploma (Teaching Adults Literacy & Numeracy) from the University of Technology Sydney.
Ms Davidson’s interim report is attached to a letter dated 22 August 2024. The interim report was provided after Michael met Ms Davidson for two and a half hours on 9 August 2024 and then for a further hour long meeting on 16 August 2024. In the covering letter dated 22 August 2024 from Ms Davidson to the appellants’ then solicitors (CharterLaw), Ms Davidson stated that she was not in a position to provide a full report before 20 September 2024 and that more time was “needed to analyse and cross-reference the assessment results”. The attached report was provided by Ms Davidson on the express basis that it was only “an interim step”.
The interim nature of the report is sufficient of itself to indicate why it is of very limited probative value in establishing that Michael lacked legal capacity at the relevant time, to which may be added the following additional observations:
(a) In its own terms, the interim report purports to assess only Michael’s literacy, numeracy and digital skills, not his legal capacity, which also requires attention to a broader range of matters (see Mahmoud). (b) It is evident from [1.3] of the interim report that Ms Davidson believed that Michael “was instructed to represent himself” in the Supreme Court proceedings. The basis for that erroneous belief is not disclosed. There was no “instruction” given to Michael to represent himself. When the trial commenced on 26 August 2024, Michael announced his appearance as a litigant in person and was granted leave to represent Mamro. This occurred in circumstances where the now appellants had failed to have the hearing vacated and had also failed to engage alternative legal representation after Clayton Utz ceased to act on 11 July 2024 (apart from the limited retainer of CharterLaw to seek the adjournment). (c) It is extremely doubtful that Ms Davidson was suitably qualified to express an opinion on Michael’s legal capacity generally (see further below at [93] where Ms Davidson candidly acknowledges the limits of her qualifications).
For the following reasons, I also do not consider that Ms Davidson’s two subsequent expert reports, if admitted into evidence, would support a finding that Michael lacked legal capacity at the time of the trial.
Ms Davidson’s expert report dated 27 January 2026 is in response to the original letter of instructions dated 22 August 2024 from CharterLaw, as well as updated instructions dated 8 January 2026 from Carlisle Attorneys then acting for Michael’s tutor. The updated instructions requested Ms Davidson to give her opinion on the following three matters:
1. Whether Michael Di Giannantonio had the capacity to read and comprehend between 20 August 2024 and the commencement of the trial on 26 August 2024, the Four Volume Court Book;
2. Whether Michael Di Giannantonio had the capacity to read and comprehend between 23 August 2025 and the commencement of the trial on 26 August 2024, the Four Volume Court Book;
3. Whether had Michael Di Giannantonio only commenced to read the Four Volume Court Book on 26 August 2024, he had the capacity to read and comprehend the Four Volume Court Book during the Trial.
The expert report is divided broadly into two parts. Sections 1-8 address such matters as background, instructions, supporting documents, the Expert Code of Conduct and Ms Davidson’s qualifications and background. Sections 9-15 contain Ms Davidson’s opinions and supporting material.
It is convenient to set out Ms Davidson’s opinions in the final section of this expert report (without alteration):
15. Expert's Opinions
15.1 Given the outlines provided in Sections 9 to 14, this writer is not of the opinion that Mr Di Gianni:
a) had the capacity to read and comprehend between 20 August, 2024 and the commencement of the trial on 26 August, 2024, the Four Volume Court Book;
b) had the capacity to read and comprehend between 23 August, 2025 and the commencement of the trial on 26 August, 2024, the Four Volume Court Book; or
c) had he only commenced to read the Four Volume Court Book on the 26 August, 2024, he had the capacity to read and comprehend the Four Volume Court Book during the Trial.
15.2 The opinions in 15.1 have been made given:
a) That the Court Book contains, in many places, a level of formatting, language and sentence length that is seen at ACSF Levels 4 and 5 only, which are well beyond the client's capabilities as evidenced in assessments in August 2024. See 14 above.
b) The ACSF's advice that a person becomes consistently independent and able to read, understand, write, speak and numerate at Level 4 and 5. See 10 above.
c) The writer's assessments of the client's L&N skills (9.3e above and 13.2 above) just four days before the earliest date stipulated in the instructions (20 August, 2024, see 3.1c above), repeatedly finding him capable of only ACSF Pre-Level 1 to low-Level 2 in reading, writing, speaking, numeracy and comprehension.
d) Mr Di Gianni's advice that he suffers from eyesight, handwriting and memory challenges, all of which would affect his ability to read, write and understand especially over a period. The writer observed him repeatedly struggling to remember instructions as well as passages from every day and legal texts.
e) The possibility that the client is also dyslexic (13.2h above) and dysgraphic (13.lg above), and might struggle to present in public (13.1h above) underscores the opinions expressed in this section.
f) These conditions listed in 15.2d and e need to be verified by a qualified expert. This noted, aspects of the client's capacity to adequately read, comprehend, remember, speak in front of an audience, converse about numeric information and, hence, represent himself in Court can't be seen as certain while questions around these conditions exist.
g) The L&N industry insights offered in Section 11 above.
h) The writer's experience of adult L&N learners over time. See Section 12 Error! Reference source not found.. [sic]
1. Whether Michael Di Giannantonio would be able at the time of your assessment /interview of him, to comprehend the Court book or, what materials in outline, within the Court Book, he would be able to comprehend;
2. Upon the assumption that you consider Michael Di Giannantonio would be able to comprehend some or all of the Court Book , what period of time to your best approximate assessment, would Michael Di Giannantonio require to comprehend the entire Court Book ( for example a day, a week, a month , and so on), or should you consider he would only be able to comprehend parts of the Court Book, how long he would require to comprehend those parts you describe he could comprehend.
The second letter of instruction chronologically is an email dated 19 December 2025 in which Carlisle Attorneys asked Ms Davidson to provide an invoice for the completion of her final report.
The expert report dated 18 March 2026 totals 219 pages, the vast bulk of which is annexures.
Ms Davidson’s findings and conclusions are set out in sections 13 and 14 of this report. Ms Davidson also helpfully provided a pithy summary of her opinions in the following two paragraphs of the Executive Summary to the report (emphasis added):
To summarise my findings, I do not believe that Mr Di Giannantonio (Mr Di Gianni) would be able to independently and adequately read, understand, extract and use all information relating to his case. The language involved is of a level of complexity that would frustrate his attempts to analyse, think critically and respond to verbal or written texts in a timely and satisfactory manner. He appears to have learning difficulties (dyslexia, dyscalculia, dysgraphia) and neurological issues (challenges with memory, information retention and possibly ADHD). He advised that he's only ever had one good eye to read and see with; and sustained a middle finger injury in childhood which severely affects his hand-writing. Both of these conditions see him tiring when asked to read, retain information, comprehend and/or write long. He expressed a fear of public speaking given his low literacy levels (stigma and shame are common in adults with such a profile) as well as what seem to be mental health factors that impacted his ability to engage with key case documents up until 16 August, 2024. All of these factors - beyond reading and comprehension skills - would frustrate Mr Di Gianni's ability to focus, read, hear, retain and use information, and cross-examine and/or respond effectively in Court. This writer is not qualified to assess for the conditions listed in sentences 3 to 6 just above but strongly recommends that expert opinions on each be sought.
This writer also needs to acknowledge a lack of familiarity with legal contexts, documents and language . It may be worthwhile sourcing a qualified opinion as to the client's ability to represent himself and deliver in or for Court in a way that meets legal standards. From a literacy and numeracy perspective however, repeating assessments and observations have validated the conclusions reached. All of these matters are outlined in the report in sections 13 and 14.
I would not grant Michael and Mamro leave to rely on either of these reports by Ms Davidson. As to the first, it is plain that it could have been obtained and adduced at the trial. Indeed, it is significant that the first letter of instruction dated 22 August 2024 to which the report relates predates the commencement of the trial by several days. Moreover, I am not persuaded that there is a high degree of probability that, if the report had been available to support the appointment of a tutor, such an application would have succeeded. The report is not only incomplete on its face (see [15.2(h)] of the report, which is set out at [89] above) but it focuses on only some aspects of the issue of legal incapacity, particularly reading and comprehension. There are also important qualifications or reservations expressed in the report (see [15.2(f)] set out at [89] above) which affect its weight. Furthermore, the report does not address other material which suggests that Michael did not lack legal capacity, including the material underpinning the primary judge’s observations at PJ [19] and [20]. Finally, there is the important fact that Michael and Mamro were given every opportunity by the primary judge to apply for a tutor to be appointed and chose not to do so.
Ms Davidson’s second report is also of limited probative value having regard to the candid qualifications expressed by Ms Davidson in the extracts from the Executive Summary (set out at [93] above). Moreover, I am far from persuaded that the report would be sufficient of itself to produce a different outcome regarding Michael’s legal capacity at the relevant time. As is the case with Ms Davidson’s first report, the second report focusses only on selected aspects of the issue of legal capacity and it fails to address material which indicates that Michael did not lack legal capacity, including the material underpinning the primary judge’s observations at PJ [19] and [20].
Mr Wong holds both a Bachelor of Arts-Psychology and a Bachelor of Laws, as well as a Graduate Diploma of Legal Practice and a Master of Clinical Psychology. He has been a registered psychologist since 2015 and is a Fellow of the College of Clinical Psychologists and Fellow of the College of Forensic Psychologists.
The appellants seek to rely upon Mr Wong’s expert report dated 3 December 2025, which is attached to his affidavit affirmed 4 December 2025. For completeness, Mr Wong’s interim psychological report dated 18 November 2025, which is annexed to an affidavit affirmed by Mr Wong on 21 November 2025, is not included in the amended 20 March Motion.
It is evident from Mr Wong’s report dated 3 December 2025 that it was prepared for the purposes of what he describes as a “leave application on 8 December 2025 before the Supreme Court”. Mr Wong stated that he had received an earlier letter of instruction from Mr Carlisle on 6 July 2025 (ie a few days before the summons seeking leave to appeal was filed) and that he had been asked to assess both Michael’s mental health and cognitive function in relation to his capacity to run the legal trial which commenced on 26 August 2024, as well as his current capacity to conduct a legal trial. Mr Wong stated in his report that he had met with Michael on several occasions in July and August 2025.
At [8] of his report, Mr Wong said that Mr Carlisle had asked him on 27 October 2025 to “await further instructions before undertaking any further work and completing my report”. He then said that on 13 November 2025, he received a further letter of instruction from Mr Carlisle, the four volumes of the Court Book from the trial and transcripts for the six day trial.
Mr Wong explained the circumstances surrounding his provision of an interim report dated 18 November 2025 which he understood was to be used by Michael in a court appearance on 19 November 2025. Mr Wong then described how he had been told by Mr Carlisle on 27 November 2025 that he wanted him to take “extra time as opposed to rushing to completion”. He added, however, that the following day he received multiple phone calls from Michael’s office saying that Mr Carlisle asked for Mr Wong to complete his report by 1 December 2025. Furthermore, on 3 December 2025, Mr Wong said that he received an email from Michael’s secretary stating that there was an urgent need to have the final report by the following day because Michael was at risk of having his case thrown out of court. Self-evidently, considerable pressure was applied to Mr Wong to complete his report after a series of stops and starts dating back to early July 2025.
In his final report, Mr Wong said that he had interviewed Ms Demi Georgievski who had known Michael for 15 years. She had worked for him as an employee for a few years and remained a friend although she had resigned from her employment with him. Mr Wong described Ms Georgievski’s statements to him regarding Michael’s capacity to concentrate, his comprehension of written language and that although he could draft basic email responses he “typically delegated any email responses to his secretaries and staff members”. She told Mr Wong that Michael could not solve problems without assistance, such as repairing tools and equipment in the factory. Mr Wong also recorded that Ms Georgievski reported that Michael was “very impulsive” and “often fired her but would call her back apologising”, that he had a short temper and would become easily frustrated, particularly when he did not understand something. She then told him that Michael “often lied to customers”. She added, however, that Michael was very good at sales and was proficient in selling marble products to customers.
(a) Michael’s overall cognitive functioning fell in the extremely low to borderline ranges (2nd percentile) on the WAIS-IV cognitive assessment. (b) Michael’s strong communication and social skills have masked his cognitive deficits over the years, especially to individuals unfamiliar with him. (c) Michael’s staff and former staff were motivated to assist him “due to feeling sympathetic for his poor functioning”. (d) Michael’s “overall poor executive functioning” was a flow on effect from his poor cognitive functioning and affected his problem solving, inhibition and consequential thinking. (e) Based on the available information and Mr Wong’s clinical observations, he concluded that Michael suffered from “F70 Mild Intellectual Disability”. (f) Given Michael’s overall poor functioning, he did not present with sufficient capacity to conduct a legal trial at any point in his life. (g) Mr Wong also held concerns about Michael’s general functioning and his capacity to manage his finances.
In his report, Mr Wong summarised the trial transcripts which he described as providing material regarding Michael’s “behaviours in every day of the hearing”. In fact, however, Mr Wong summarised only four of the six day trial (27 August, 28 August, 29 August and 2 September 2024). His summaries of those full-day transcripts are notably brief and are highly selective. They generally relate to some difficulties manifested by Michael as a litigant in person conducting a complex and lengthy trial, which is not unexpected or unusual for a self-represented person. Furthermore, Mr Wong makes no reference to the many other parts of the transcripts which support the primary judge’s observations at PJ [19]-[20].
In my respectful view, Mr Wong did not provide a balanced summary or assessment of the transcripts. Later in these reasons for judgment, I will explain why I consider that the transcripts, fairly and objectively assessed, support the primary judge’s observations at PJ [19] and [20] and do not demonstrate that Michael lacked legal capacity at the time of the trial (see below at [120]ff).
Returning to Mr Wong’s report, Mr Wong’s ultimate opinion was that Michael suffered from F70 Mild Intellectual Disability at the time of the assessment. Mr Wong opined as follows at [83] of his report:
Given Mr Di Giannantonio’s overall poor functioning, he did not present with sufficient capacity to conduct a legal trial at any point in his life. He demonstrated global impairments in his functioning, although his verbal abilities were his relative strength, which appeared to have sadly masked his disability. During the trial that commenced on 26 August 2024, Mr Di Giannantonio showed an inability to comprehend or effectively follow directions even with the guidance of the judge on multiple occasions throughout the six days, which indicated his inability to understand the proceedings even with legal and expert assistance. His ongoing misunderstanding that the proceedings were against his sisters, despite being told on multiple occasions that the proceedings involved his mother, further demonstrated his lack of capacity to understand the legal proceedings. His Working Memory Index falling in the Extremely Low range (1st percentile) demonstrated his overall poor capacity to retain information especially in short-term memory, which is crucial in understanding and managing legal proceedings. His inability to understand and retain relevant information by definition had impeded his ability to make informed decisions about the litigious matters. Although he understood that he needed to rebut the plaintiff’s case and present his case, he was unable to properly do so or understand the steps involved as seen in the court transcripts. At the time of the assessment, he continued to lack meaningful appreciation or understanding of the significance of evidence or court processes. He struggled to understand why the judge made a ruling against him and continued to inappropriately blame his sisters for it.
I am not persuaded that Mr Wong’s opinion is sufficient, of itself, or in combination with the other proposed further evidence, to present a high probability that Michael lacked legal capacity at the time of the trial. Much of what Mr Wong says relates to his assessment of Michael’s capacity to represent himself at the trial and whether he did so proficiently. As was noted in Mahmoud at [30], the relevant issue is not whether a litigant in person, such as Michael, has the ability to represent himself or herself well. Yet, that appears to be the focus of Mr Wong’s assessment. Merely because Michael may not have represented himself and Mamro as well as a qualified legal representative or another litigant in person does not mean that he lacked full legal capacity.
Even if Mr Wong’s report and assessment is read more generously, I am not persuaded that it provides a balanced and comprehensive assessment of Michael’s legal capacity. That assessment is not supported by an objective review of the transcripts of the trial. The report warrants very little probative weight.
8. Unfortunately Michael lies. For example I have observed Michael saying to me on a number of occasions words to the effect: ‘Demi, I have not read that contract. I don't have the time.” These requests follow periods when I have observed him chatting with the staff socially or simply starring at a computer blank screen. 9. [sic]
9. Typically when I read the document referred to by Michael, I see that it is long, has some complex words, or is a comprehensive and somewhat complex document, or it may have mathematical calculations recorded within its terms. When I come to explain the document to Michael he may admit to me his lie, when he says words to the effect: "Please read this document to me as I don t [sic] understand these words, You II [sic] have to explain them to me."
On 4 July 2025, Mr Kumar affirmed a short affidavit which was filed on 12 December 2025. Mr Kumar said that he was employed as a stonemason at the Maroota Quarry and had known Michael for about five years. He gave evidence of his attendance at the Supreme Court on 29 August 2024 and his personal observations of Michael experiencing a nosebleed. He deposed that he heard Michael decline the recommendation from a paramedic that Michael be admitted to hospital.
It is evident from the transcript that Michael’s nosebleed occurred during the luncheon adjournment on 29 August 2024. When the hearing resumed at approximately 2pm on that day, Michael told the Court that he had suffered a nosebleed but that he did not want the hearing adjourned. He added, however, that he did not feel well and felt “quite dizzy”. In those circumstances, the primary judge adjourned the hearing for approximately an hour with a view to revisiting the situation. When the hearing resumed at 3pm, Michael was not present. Her Honour adjourned the hearing until 9:30am on Monday 2 September 2024 (ie after the weekend break).
When the hearing resumed on Monday morning, Michael appeared and apologised to the Court. He did not complain of any ongoing issue concerning the nosebleed. Rather, he proceeded to participate in the hearing in the usual way. This included him applying to rely on three additional lay affidavits and continuing to cross-examine one of his sisters.
Mr Kumar’s affidavit has no probative weight at all regarding Michael’s legal capacity at the time of the trial.
As noted above, Ms Tucker is Michael’s tutor. The appellants sought to rely on some parts of her affidavit affirmed 22 January 2026 which were referred to in the appellants’ written submissions. These parts of Ms Tucker’s evidence relate not so much to Michael’s legal incapacity, but to other issues in the proceeding, including ground 17 (to which [20] of the affidavit and page 88 of the annexures related) and the complaint of procedural unfairness raised by grounds 12-13 (to which [22] of the affidavit and pages 95-97 of the annexures relate). I consider that these parts of the affidavit should be admitted into evidence in relation to those matters.
Paragraphs 4 to 7 of Ms Tucker’s affidavit should also be admitted into evidence on the basis that they are referred to at [20] of the appellants’ summary of argument filed 29 August 2025 as supporting the contention that the appellants had complied with the final orders concerning discharging the mortgage on the Haberfield property and removing the caveat. Otherwise, these paragraphs have little or no relevance to any issue in the appeal.
Returning to the third condition in Akins relating to the credibility of the evidence, Maria contends that where the further evidence comprises testimonial statements from witnesses who have not been cross-examined, the Court ought not to make a finding as to its credibility one way or another. That contention should be accepted.
I do not consider that the prejudice of this further evidence to Maria is overcome by now affording her an opportunity to cross-examine relevant witnesses or adduce additional evidence in response. The proceedings have a long history, having commenced in early 2022 and involving a six day trial. Maria is now in her late 80s and ought not to be subjected to the pressure and anxiety of a resumed hearing. All the more so in circumstances where the appellants’ application to adduce further evidence was made belatedly and without any explanation for the delay.
The transcripts of the six day trial total 427 pages. They constitute a valuable source of information bearing upon Michael’s legal capacity having regard to the relevant principles outlined in cases such as Mahmoud*.* Some of the material indicates that, at particular times, Michael had difficulties with his memory, his understanding of legal concepts and his ability to analyse and digest complex documents. This would be the case with many litigants in person participating in such a trial. On balance, however, the transcripts strongly support the primary judge’s observations at PJ [19]-[20], which are to the effect that Michael’s cross-examinations were “lengthy, robust and persistent”, the manner of his cross-examining involved using written notes and sustaining lines of questioning, and there was no evidence that Michael had difficulties which rose to the level of “a disability” in reading, writing and comprehension.
Without attempting to be exhaustive (in view of the length of the transcripts), I will highlight some examples of how the transcripts are inconsistent with the belated claim that Michael lacked legal capacity at the time of the trial.
The transcripts record numerous occasions when the primary judge went out of her way to make adjustments for the fact that Michael was a litigant in person and had to confront the challenges invariably presented to such a litigant who lacks legal qualifications or relevant experience. This is reflected in the following examples:
(a) Her Honour went to considerable lengths in explaining to Michael relevant procedural aspects of the trial, his proper role and function as self-advocate, as well as giving detailed explanations regarding her Honour’s multiple rulings on objections to evidence. The adjustments included Michael being provided with a copy of the transcript for 23 August 2024 relating to the unsuccessful application made by Mr Ipp for the hearing to be vacated. (b) The primary judge made other adjustments in recognition of Michael’s status as an inexperienced litigant in person, including granting numerous adjournments (a total of 16 adjournments were granted during the course of the trial). These adjournments were intended to give him more time to read documents such as the Court Books or particular affidavits and to prepare and present his case, as well as accommodating his nosebleed on 29 August 2024 as described above. It is also notable that, at the outset of the hearing, her Honour went to some lengths to assist Michael by outlining in plain language the key issues which needed to be addressed at the trial. (c) It is telling that in the defendants’ closing written submissions dated 3 September 2024, which Michael handed to the Court before lunch on the final day of the trial and which were evidently prepared by him, he wrote (without alteration):
In closing, I would like to thank your honour for her patience shown to me throughout the case and to thank the court for the assistance provided in my medical emergency and helping me understand the process in my self-defence of this matter.
Having regard to the considerable assistance and adjustments made by the primary judge, some of which are described above, this acknowledgement in the closing written submissions was well made.
(a) As to reading, it is notable that the transcripts reveal that Michael had no particular difficulty reading out parts of affidavits or other documents. For example, it is clear that Michael had read and understood his sister, Adriana’s, detailed affidavit. He cross-examined her with reference to particular paragraphs of that affidavit, including reading them out loud. This also occurred when Michael cross-examined Maria (which took approximately a day and a half and involved an interpreter for Maria) and other witnesses. He was able to read out all his opening written submissions and address relevant parts of the defendants’ closing written submissions, including providing lucid and responsive answers to the primary judge’s questions at that closing stage of the proceeding. Michael himself was subjected to a lengthy cross-examination, which took approximately one day and is recorded in more than 100 pages of the transcript. He was generally responsive to the cross-examiner’s questions and was able to read to himself parts of his affidavit and other documents when asked to do so. He then generally gave responsive answers. For example, he was cross-examined on [59]-[60] of his affidavit regarding the sales of the Leichhardt and Annandale properties. Another example relates to the cross-examination of Michael regarding what he wrote in a RAMS Home Loans Application. He was able to read to himself parts of that application and answer questions arising therefrom. (b) As to writing, Michael said that he received some help in writing the defendants’ opening submissions. It is unclear whether he also received assistance in preparing the four and a half page closing written submissions dated 3 September 2024. Those submissions are written consistently in the first person and are headed “Reasons Why I Should Win This Case”. It is undisputed, however, that it was Michael’s handwritten annotations on the 2018 Deed. He is far from illiterate. (c) As to comprehension, the transcripts are replete with examples of Michael not only stating expressly that he understood something that had been explained to him, but he then proceeded to conduct the case in a way which was consistent with that acknowledged understanding. For example, when an objection was successfully taken to a question which Michael put to Maria in cross-examination on the basis that it was too vague and general, the primary judge explained to Michael why she made that ruling and that there was nothing preventing him from directing the witnesses’ attention to particular parts of an affidavit. Michael said that he understood the position and he then proceeded to act consistently with that expressed understanding. Similarly, after the primary judge explained to Michael why she had upheld an objection to a question asked in his cross-examination of Maria and that he needed to direct the witness to a specific part of a document, Michael said that he understood and he proceeded to cross-examine Maria on an individual receipt basis by reference to a group of receipts. (d) Similarly, Michael demonstrated during senior counsel’s lengthy cross-examination of him that he was generally able to understand and respond to questions. Indeed, as the respondent correctly pointed out, Michael’s comprehension was reflected in the fact that, at times, he apprehended that an answer might be against his own interests. This was also noted by the primary judge at PJ [216]-[217] and [220]-[221].
While it may be accepted that Michael has some difficulties in reading and writing as well as comprehension, I consider that, viewing the transcripts of the six day trial as a whole, those disadvantages do not rise to the level of legal incapacity.
Accordingly, for all these reasons, I would not grant leave to adduce the further evidence identified in the amended 20 March Motion filed on 14 April 2026, with the solitary exception of the material identified in paragraph 3(g) thereof relating to parts of Ms Tucker’s evidence.
Michael and Mamro argue that during the hearing of the proceedings below, Michael was a “person of legal incapacity” for the purposes of r 7.14 of the UCPR, such that he was not capable of carrying on the proceedings except by a tutor and that the primary judge erred in permitting the trial to continue without appointing a tutor for Michael. These contentions are raised by proposed grounds 6-8 of the amended notice of appeal.
For the following reasons, I would refuse leave for the appellants to rely upon proposed grounds 6-8 of the amended notice of appeal dated 30 January 2026.
First, and foremost, these proposed grounds lack sufficient prospects. This is particularly so in circumstances where the proposed grounds were said to be supported by the appellants by the further evidence relating to Michael’s capacity, evidence which has been rejected. This essentially leaves the appellants only with the transcripts as relevant material bearing upon the issue of Michael’s legal capacity. As is evident from my analysis of the transcripts of the trial and applying the relevant legal principles relating to legal capacity, the transcripts do not indicate that Michael lacked legal capacity.
Secondly, in considering whether or not to permit the appellants to rely upon proposed grounds 6-8, a significant factor which is not in their favour is the history of the proceeding and the fact that no application was made either prior to, or during the conduct of the trial, to have a tutor appointed for Michael. The transcript of the hearing before the primary judge on 23 August 2024 demonstrates that her Honour expressly put to Michael’s then counsel the issue of capacity and the fact that he was not making an application to appoint a tutor. Her Honour was nevertheless open to hearing such an application and indeed, proactively granted leave for such an application to be made prior to the hearing.
On the afternoon of 23 August 2024, Michael’s solicitors wrote to the associate to the primary judge regarding the issue of the appointment of a tutor for Michael:
Her Honour mentioned the possibility of an application being made, to be heard later this afternoon, for the appointment of a tutor for the first defendant. We have sought instructions in this regard and no instructions have been given to make such an application**.**
It is undisputable that Michael, having been given the opportunity to do so, chose not to instruct his solicitors to make an application for a tutor. Significantly, this occurred at a time when he was legally represented, albeit this was a limited retainer. Thus little, if any, allowance needs to be made on the hypothesis that Michael lacked legal capacity on 23 August 2024. His then solicitors had their own professional responsibility in relation to the matter, even allowing for their limited retainer.
The primary judge cannot be said to have erred in permitting the hearing to continue in circumstances where the issue of whether Michael lacked capacity and therefore needed a tutor was squarely raised at the hearing and no such application was made.
Thirdly, the proposed grounds of appeal on the legal capacity issue raise an entirely new factual issue that was not explored or tested in the proceedings below. Granting leave to Michael and Mamro to add these grounds would prejudice Maria in circumstances where she has not had the opportunity to test any relevant evidence in the proceedings below or within the confines of the appeal proceedings. Adjourning the appeal in order to provide Maria the opportunity to test and respond to this evidence would result in further undue delay and expense and cause unfairness to Maria.
For all these reasons, I would not permit the appellants to rely on proposed grounds 6-8.
The remaining grounds of appeal may be grouped by issue and summarised as follows:
The release issue: The primary judge erred in granting the release under s 95 of the Succession Act (grounds 1-4). In the event that Michael and Mamro succeeded, it was further submitted that the costs order made below was in error (ground 5).
The so-called “surprise rule” and procedural fairness issue: The primary judge erred by finding that the 2018 Deed was delivered by Michael in escrow without that issue being raised by the parties and without inviting submissions from the parties (grounds 9-13).
The mutual assent issue: The primary judge erred in finding that the parties were bound by the 2018 Deed on the basis that they had manifested their mutual assent to its terms (grounds 14-16).
The stay application issue: The primary judge erred in refusing leave to file a notice of motion seeking a stay of the enforcement of part of the final orders made (ground 17).
It is convenient to address the remaining grounds of appeal by these groups of issues.
To succeed in appealing against the primary judge’s exercise of the discretion under s 95 of the Succession Act on the basis that proper consideration was not given to the matters in s 95(4), Michael and Mamro must establish error under the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [109] and [160] (Ward JA, Meagher and Gleeson JJA agreeing). They need to demonstrate that the primary judge erred by acting upon a wrong principle, allowing irrelevant or extraneous matters to guide or affect the decision, mistaking the facts, or failing to take into account some material consideration.
No such error has been demonstrated.
I do not accept the appellants’ submission that the primary judge could not have been satisfied that the release was fair and reasonable because there was no proper evidence at trial of the following matters:
(a) The value of the 50% interest in the Leichardt property (as noted at PJ [381]). (b) The value of the mortgage secured on the Leichardt property when it was transferred to Mamro (as noted at PJ [137]). (c) The value of the marble business (as noted at PJ [381]). (d) The value of the Maroota Quarry and its operation (as noted at PJ [381]). (e) The value of the Haberfield property when the Court simply relied on an estimated value provided in correspondence between Maria and her solicitor in December 2009 and without any evidence of the property’s current value (as noted at PJ [383]).
The appellants also complain that the primary judge did not make findings on matters such as the liabilities of Michele’s estate, Maria’s full financial position and Michael’s financial position, including at the time of Michele’s death, the date the 2018 Deed was executed or the time of hearing.
There is a fundamental difficulty with the appellants’ complaints. They are predicated on the proposition that, in determining whether a release (or perhaps more accurately having regard to the terms of s 95(4)(c), the provisions of any agreement to make a release) is fair and reasonable, the Court must embark upon a detailed and reasoned examination of the value of assets which are likely to form part of the estate, the value of the benefit that the releasor is obtaining, and the financial position of interested parties in the estate. This proposition is inconsistent with Robinson. There, Ward JA (Meagher and Gleeson JJA agreeing) rejected the proposition that “there could be no proper exercise of the discretion to approve a release without an oral hearing or without the publication of written reasons addressing each of the separate s 95(4) matters”. Her Honour noted that the proposition is “not supported by either authority or the practice adopted generally in these matters (and would impose an intolerable burden on the resources of the court)”: at [159].
Ward JA added at [163]-[164] that:
… the fact that the primary judge did not have before him evidence of [the testator’s] will or of her testamentary intentions, nor evidence of the financial circumstances of the first (or second) respondent [i.e. the appellant’s siblings], did not preclude the primary judge coming to an assessment as to whether the Deed of Release embodied an agreement that was financially or otherwise to the advantage of the appellant, was prudent considering the appellant’s interests, and was fair and reasonable in all the circumstances.
In a practical sense, what the primary judge had to assess was whether it was advantageous, prudent, and fair and reasonable from the perspective of someone in the position of the first respondent to agree to give up any further claim on the deceased’s estate and any future claim on her mother’s estate for a settlement in the amount for which the Deed of Release provided (and payable in the circumstances there provided).
… it was both advantageous and prudent for Michael to make the release in August 2018 in order to quell the family dispute that had arisen from his conduct … to secure a legal right of residence at the Haberfield property for himself and his daughter which Michael regarded as important in the context of his forthcoming family law dispute with Melanie, and to secure a right of first refusal to purchase the Haberfield property from Maria’s estate following her death which Michael said in cross-examination was also very important to him.
The primary judge was not required by s 95(4)(c) of the Succession Act to engage in a detailed mathematical analysis of whether the benefit obtained by the releasor was on par with the benefit that might be obtained by other potential claimants on the estate.
Moreover, contrary to Michael and Mamro’s contention, her Honour’s finding that the benefit obtained by Michael from Maria significantly exceeded $1,575,000 (PJ at [382]) was not in error but involved the drawing of reasonable inferences from the following matters:
(a) the amount that Mamro had derived from the $3,150,000 sale of the Annandale property, in which property Mamro had a 50% interest in (valued at $1,575,000 – see at PJ [135]); and (b) the numerous other benefits that Michael had received from Maria to the exclusion of his three siblings, including the Leichhardt property, the rent he obtained from the Annandale property following Michele’s death in 2009 until the property was transferred in 2014, the marble business, the loan procured through the mortgage over the Haberfield property and his many years residing their rent free.
It is not as though there was absolutely no evidence regarding the value of the Leichhardt property. The primary judge was aware at PJ [137] that the value of a half-share of that property at the time probate was granted for Michele’s estate was $550,000. Further relevant evidence was the email dated 16 February 2011 from Michael’s then solicitor who referred to an updated valuation of the Leichardt property in the amount of $1.2 million. It was open to the primary judge to give some weight to this evidence and to draw reasonable inferences from it.
As to the complaint that there was no evidence of the amount of any debt secured by the mortgage on the Leichhardt property, I accept Maria’s submission that this was a matter within Michael’s control and he failed to produce any relevant evidence.
I also accept Maria’s submission that the absence of any evidence of the value of the Maroota Quarry property and business has no significance because these matters did not form part of Michael’s early inheritance as described in cl 8(a) of the 2018 Deed.
As to the evidence relating to the value of the Haberfield property, the primary judge noted at PJ [383] that it was valued at $3.1 million in December 2009. A valuation report obtained by Westpac in March 2014 stated that the market value of the Haberfield property at that time was $3,150,000. Thus there was some evidentiary material from which the primary judge could draw reasonable inferences.
Finally, it is important to have regard to the way in which the appellants’ case was conducted below. As Gummow ACJ, Kirby, Hayne and Heydon JJ observed in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]:
when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
See also Smith v The Council of Trinity Grammar School [2022] NSWCA 93 at [18] (Gleeson and Leeming JJA) and Aardwolf Industries LLC v Tayeh [2020] NSWCA 301 at [60] (Macfarlan JA, Bell P and Leeming JA agreeing).
It is notable that Michael and Mamro did not argue at the trial that there was no or inadequate evidence of the value of any of the relevant assets or liabilities. Michael and Mamro should not be permitted now to challenge the primary judge’s exercise of the discretion under s 95 of the Succession Act having regard to the way in which the case was conducted below.
In any event, Michael and Mamro have not demonstrated that, notwithstanding the substantial benefits that have flowed to them including from the property that would otherwise form part of Maria’s estate, Michael would in the absence of a release have good prospects of succeeding in a claim for a family provision order in the future. This is an additional reason why there is no substance to the complaint that the primary judge did not have a proper basis to conclude that the provisions of the agreement to make the release were fair and reasonable.
Grounds 1-4 are rejected.
Michael and Mamro contend that the primary judge erred in finding that the 2018 Deed was delivered by Michael in escrow. The crux of Michael and Mamro’s argument is that the issue of whether the 2018 Deed was delivered in escrow was not pleaded by the parties, such that it was not open to the primary judge to make that finding and that, in doing so, they were denied procedural fairness.
This contention fails properly to characterise the way in which the issue was pleaded at trial. In her statement of claim filed 28 January 2022, Maria alleged that the parties entered into a wholly written deed. That was a clear allegation that the 2018 Deed was entered into and enforceable as a deed. Michael and Mamro were on notice of that case. In their further amended defence, Michael and Mamro denied that the 2018 Deed was enforceable in light of the circumstances of its execution. In her amended reply responding to this new defence, Maria raised three different additional and/or alternative bases for its binding force. None of these alternative bases advanced by Maria which support the binding nature of the 2018 Deed detract from Maria’s original allegation that the parties entered into a binding deed on 12 October 2018. In her reply, Maria also specifically pleaded that Michael and Mamro “execut[ed] and deliver[ed] the Deed to Maria on or about 22 August 2018” and that Maria “execut[ed] and deliver[ed] the Deed on 12 October 2018”.
It is also relevant to note what the primary judge said at the commencement of the hearing about this matter when her Honour was summarising, largely for the assistance of Michael and Mamro, the key issues arising from the pleadings:
HER HONOUR: … Then there’s a dispute which I’ll have to decide about whether the deed that was signed on 12 October 2018, which provided for you and Mamro to take all reasonable steps to sell the quarry, and to use the sale proceeds to discharge the mortgage by no later than 2 October 2020; even if the quarry wasn’t sold. There’s a dispute about whether that deed was binding and enforceable, and as I understand your defence you and Mamro say that you did sign the deed, but it’s not enforceable because Maria signed it after she had already rejected some of the handwritten changes that were incorporated into the version of the document that you had signed.
Maria however says that that doesn’t mean the deed wasn’t binding and there was no objection from you or from Mamro after she signed the deed and delivered it to you on 12 October 2018, and that you’ve both acted subsequently on the basis that the deed was binding on you, and that’s – according to Maria – no longer open to you and to Mamro to assert that the deed was not binding or enforceable. So those are the disputed issues, the first set of disputed issues about that deed. Assuming that the deed was binding in that way that it was signed I will then have to decide whether it’s void or unenforceable, or should be set aside on the basis that you say you were suffering under a special disadvantage when you signed it.
Even if it is accepted that the specific language of “delivery in escrow” was not used in the pleadings or in the primary judge’s summary of the key issues, when regard is had to the fact that Maria specifically pleaded that a binding deed was created on 12 October 2018 when she executed the document which Michael had delivered to her on or about 23 August 2018, it was within the scope of the factual issues that Michael’s delivery of the deed to Maria amounted to delivery in escrow. There was no procedural unfairness in the primary judge making that finding.
Michael and Mamro also submit that the 2018 Deed was incomplete and therefore cannot form an escrow, relying upon the objections raised by Maria’s solicitor in email correspondence with Michael’s solicitor. However, as the primary judge held, the objections raised by Maria’s solicitors only concerned the form of the 2018 Deed, not the fact that it was incomplete. Unlike the draft deed considered in Fisher v Westpac Banking Corporation (1993) 43 FCR 385, which was held to be incomplete on account of the fact that it had blanks which were required to be filled in, the 2018 Deed was capable of coming into operation as soon as the escrow condition that Maria execute the 2018 Deed was satisfied.
It is further argued by Michael and Mamro that signing, sealing and delivery of a deed merely gives rise to a rebuttable presumption that there was an intention to deliver the deed in escrow, which can rebutted by considering all the circumstances of its execution (citing Lewski v Australian Securities & Investments Commission (No 2) (2017) 352 ALR 64; [2017] FCAFC 171 at [84]). Lewski stands for the proposition that the intention of the parties is the decisive factor in determining the operative date of a deed. The intention of the parties is to be established not only by reference to the actual date of the deed, which forms a rebuttable presumption as to the operative date of the deed, but also by reference to other evidence of intention that can be discerned from the circumstances.
In Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503, Rogers J held that it may be inferred that a document that purports to have been signed, sealed and delivered is in fact a deed. That presumption of delivery, may however, be rebutted by evidence the parties did not intend to be bound, which must be ascertained by considering the nature and all the circumstances of the case (see Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [75] per Leeming JA, Bell P and Brereton JA agreeing, quoting Lady Naas v Westminster Bank Ltd [1940] AC 366 at 399 per Lord Wright).
The surrounding circumstances that Michael and Mamro say indicate that the parties did not intend to be bound include:
(a) The advice given to Michael by his solicitor that the hand annotated and signed fifth version of the deed would not be accepted. (b) The email correspondence sent by Maria’s solicitor to Michael’s solicitor objecting to the form of the deed. (c) The email from Maria’s solicitor of 24 September 2018 enquiring whether Michael will sign the “Deed” must be a reference to Michael’s earlier draft deed, not the hand annotated and signed deed. (d) No time was stipulated within which Maria could execute the deed.
These surrounding circumstances identified by Michael and Mamro omit other important context from the email correspondence between the parties’ respective solicitors. In Ms Alexander’s (Michael’s solicitor) email of 23 August 2018, whilst she states that she did advise Michael that signing a hand-annotated deed was “irregular and would not be accepted”, she also notes that “notwithstanding our advice, our client [Michael] signed the deed” and that “[o]ur client was anxious to sign a document last evening in order to deliver it to his mother without any further delay”. These suggest the contrary conclusion, that in fact Michael did have an intention to be bound by the 2018 Deed if and when it was signed by Maria.
As to the absence of any stipulated time period within which Maria could sign the deed and the appellants’ related contention that therefore the period was infinite and indefinite, this overlooks the proposition that, absent a time stipulation, “the condition must be satisfied within a reasonable time” (see Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [3.13] and Fraser v Moxham [2006] NSWSC 346 at [8] per Young CJ in Eq).
In grounds 12 and 13, Michael and Mamro seek to impugn the primary judge’s finding that the 2018 Deed was delivered in escrow on the basis that Michael was a self-represented litigant in respect of whom it is said special accommodations should have been made by the Court to ensure that he understood the issue.
These grounds should fail, for many of the same reasons as given above in rejecting grounds 9-11. At first instance, Maria raised the issue of whether the 2018 Deed was entered into and enforceable as between the parties. The primary judge was not raising a new issue by characterising the 2018 Deed as being “in escrow”, such that further evidence or submissions should have been made on the point, so that Michael, self-represented as he was, could appreciate the issue.
There was no denial of procedural fairness. Michael and Mamro were provided a full and fair opportunity to make submissions in response to Maria’s argument that Michael executed and delivered the deed on 22 and/or 23 August 2018, such that it was capable of being executed by Maria as a binding deed on 12 October 2018. As a matter of substance, that included a full and fair opportunity to address the legal character and effect of what had occurred, including if the deed had been delivered in escrow.
For completeness, I would reject any submission to the effect that the primary judge should have assisted Michael as a litigant in person by making specific reference to the escrow condition point and explaining it to him. As noted above, at the outset of the hearing, her Honour referred to the question whether the 2018 Deed was binding and enforceable in general terms as one of the key issues arising at the trial. In my respectful view, the primary judge did not need to descend into any greater detail which may have jeopardised her Honour’s neutrality and impartiality. It is one thing to assist a litigant in person by describing matters of practice and procedure (sometimes at some length) but very different considerations apply to substantive legal issues (see generally [2011] NSWCA 375 at [309]-[316] per Beazley JA, Giles and Whealy JJA agreeing; [2025] NSWCA 136 at [65]-[72] per Bell CJ, Payne and Free JJA).
22. I am informed by the Applicant's legal advisors, and I verily believe that had Michael Di Giannantonio been made aware that a claim was being made in the proceedings by the Respondent against him and the co defendant that the Deed he signed on or about 25 August 2018 created a Deed in Escow [sic], then assuming he was properly advised by solicitors and had the capacity to comprehend the advice, he had then the opportunity to undertake the following steps:
(a) File affidavit evidence sworn by himself as to what was said between he and the Respondent when he gave possession of the Deed on or about 23 August 2018 in the home as to what he intended concerning the Deed later dated 12 October 2018 and what the Respondent said in reply;
(b) Seek from the Registrar the issue of a subpoena for production directed to the Respondent's solicitors for the production of their file and records recording the matters referred to within open correspondence sent by those solicitors to Michael Di Giannantonio's then solicitors, a copy of which is annexed hereto and marked with the Letter “H”.;
(c) File an affidavit sworn by Michael Di Giannantonio and other third parties as to what was said and done by the Respondent after 23 August 2018 within the home concerning what the Respondent and Michael Di Giannantonio said and did concerning the terms of that deed; for example who was intended to undertake the role of being named as attorney for respondent within the Power of Attorney noted within that Deed;
(d) File an affidavit sworn by Michael Di Giannantonio's then solicitor as to the course of correspondence passing between the Respondent’s and the Defendants then solicitors dated 23 and 24 August 2018, copies of which are annexed hereto and marked with the letter "H”. These items of correspondence appear to be part of annexure “AA” to the affidavit of the Respondent filed in the initial proceedings.
23. I refer to the opening and closing submissions of the Respondent at trial, in respect of which I make no admission or concession, copies of which are annexed hereto and marked with the letter "I".
This evidence is not only on information and belief but it is speculative and leaves entirely at large the content of the additional evidence which the appellants say they would have obtained from either witnesses or on subpoena. It also left entirely uncertain what additional relevant evidence could be adduced relating to the exchange of correspondence on 23-24 August 2018.
For all these reasons, grounds 9-13 are rejected.
If I had not concluded that the 2018 deed was effective as a deed and binding on all parties from 12 October 2018 for the reasons set out above, I would have upheld Maria’s submission that the parties manifested their mutual assent to the terms of the 2018 deed by their conduct in signing the deed referred to at [252]-[253] and [258] and their conduct thereafter referred to at [279] and [298]-[301] above, and that the 2018 deed was therefore binding on them as a matter of contract law … Michael’s unpleaded contention that the 2018 deed was not Maria’s document and that she did not understand it, which received much attention during his cross-examination of Maria, Daniela and Adriana, was baseless.
Michael and Mamro submit that “the mutual assent theorem had no application” in circumstances where they had “made the offer by the draft deed” and “it was a matter for [Maria’s] conduct to indicate acceptance of its terms”.
This submission is not accepted. It is contrary to Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [60], where Sackville AJA (Macfarlan and Gleeson JJA agreeing) observed that:
… it is not necessary, in determining whether a contract has been formed, to identify a precise offer or acceptance; nor is it necessary to identify a precise time at which an offer or acceptance can be identified … The questions to be asked are:
“in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the [plaintiff] and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?”
(a) Subject to Michael executing this Deed and at all times complying with its terms, Maria will allow Michael and Briella to reside at the Haberfield Property in the apartment in the middle level of the house on terms acceptable to Maria.
Consistently with clause 6 of the 2018 deed, Maria permitted Michael and his daughter Briella to continue living in the apartment at the Haberfield property free of charge after the deed was executed on 12 October 2018. As referred to earlier in these reasons, Michael had returned to live at the Haberfield property in about May 2018 in anticipation of signing a deed as required by Maria. Michael and Briella continued to live there without paying rent or any contribution to outgoings until September 2021 …
… Maria gave evidence that she had allowed Michael and Briella to move into the self-contained apartment in the Haberfield property in about July 2018 and to live there rent-free on the understanding that they would all be bound by the terms of the deed, and Michael and Briella continued living there until September 2021 …
Further, as Maria pointed out, in his own evidence Michael acknowledged that Maria would “sometimes tell me [that] ‘if you don’t sign the deed, you will need to leave the house’”. The primary judge consequently did not err in finding that Michael’s residence with Maria from July 2018 to September 2021 supported the inference that they had agreed to be bound by the 2018 Deed**.**
In any event, the fact that Maria permitted Michael to continue residing in her Haberfield property, as contemplated by cl 6, was no more than one integer that figured in the primary judge’s conclusion that the parties had manifested their mutual assent to the terms of the 2018 Deed. The primary judge did not err in so reasoning.
Michael and Mamro further submitted that Maria “did not faithfully adopt the terms of the deed” in their attempt to challenge the primary judge’s finding of mutual assent. They point to cl 9 of the 2018 Deed, where Maria agreed to amend her Will to grant Michael a right of first refusal to purchase her Haberfield property upon her death. They contended that the amendments that were in fact made to her Will departed from what was contemplated by cl 9. That clause provided (emphasis added):
Maria agrees that within 60 days from the date of this Deed, she will do all things to instruct her lawyers to amend her Will to grant Michael a right of first refusal to purchase the Haberfield Property on her death on reasonable terms having consideration to the current terms of Maria’s will.
The relevant departures complained about appear to be that the amendment to Maria’s Will provided that Michael’s right to purchase the Haberfield property would be at market value (as determined by an independent valuer) and that the right would expire after 21 days.
I do not accept that these were relevant disconformities. As Maria submits, these terms were “reasonable terms” that gave effect to cl 9. No error has been demonstrated in the primary judge’s finding that Maria “complied with her obligations under the 2018 deed by … making a new will conferring on Michael a right of first refusal to purchase the Haberfield property from her estate following her death as provided for in clause 9 of the 2018 deed”: PJ [374].
Even if this be wrong, the disconformities would at most be capable of establishing a breach of cl 9, rather than suggesting that the parties did not objectively consider that clause to be binding. That is so in circumstances where Maria’s solicitor communicated to Michael that the amendments to Maria’s Will were being prepared in accordance with the 2018 Deed: PJ [279].
As Free JA pointed out during the course of the hearing, even if the amendments to Maria’s Will had some effect on the validity of the Will, this would have no bearing on the relevant point that the parties conducted themselves in accordance with a mutual understanding that the amendments to the Will were required by the 2018 Deed.
For these reasons, grounds 14-16 are rejected.
For all these reasons, I propose the following orders:
Refuse leave for the appellants to rely upon proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.
Grant the appellants leave to rely upon paragraphs 4-7, 20, and 22 of, and pages 88 and 95-97 of the annexures to, the affidavit affirmed by Rosemary Tucker on 22 January 2026.
Otherwise dismiss the amended notice of motion filed 14 April 2026.
Dismiss the appeal.
Dismiss the notice of motion filed 12 December 2025 insofar as it relates to proposed grounds 6, 7 and 8 of the amended notice of appeal dated 30 January 2026.
Appellants pay the respondent’s costs of and incidental to the appeal on an indemnity basis.
**********
Di Giannantonio by his tutor Tucker
Di Giannantonio
[1936] HCA 40
[2008] HCA 42
(1994) 34 NSWLR 155
(1993) 43 FCR 385
(1936) 55 CLR 499
(2017) 352 ALR 64
(2008) 237 CLR 66
(2020) 104 NSWLR 62
(2020) 102 NSWLR 1
(2019) 58 VR 375
Leave to rely on proposed grounds 6–8 was refused; leave was granted to rely on specified parts of Rosemary Tucker’s affidavit; otherwise, the amended notice of motion filed 14 April 2026 was dismissed; the appeal was dismissed; the 12 December 2025 notice of motion was dismissed insofar as it related to proposed grounds 6–8; and the appellants were ordered to pay the respondent’s appeal costs on an indemnity basis.
These events all occurred whilst Michael and his then partner, Ms Melanie Hunter, resided with Maria at the Haberfield property.
In September 2016, Michael and Melanie moved out of the Haberfield property after falling into dispute with Maria about the scope of authority conferred on him in relation to the Rome apartments under a power of attorney that Maria had executed at Michael’s request in 2015.
In May 2018, following the breakdown of the relationship between Michael and Melanie, Maria agreed to allow Michael to return to live with her at the Haberfield property on the condition that Michael enter into a deed. After extensive negotiations between the parties’ respective lawyers, a deed was signed by Michael and Mamro on or around 22 August 2018 and later, by Maria, on 12 October 2018 (the 2018 Deed). It provided inter alia for:
As Maria points out, this background also shows that none of the lawyers representing Michael in the period preceding the trial had sufficient concerns about his mental capacity to make an application under r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). This deserves weight because of the professional duties of lawyers in respect of their clients’ capacity to commence and carry on proceedings: see Vishniakov v Lay (2019) 58 VR 375; [2019] VSC 403 at [30(c)-(e)], and the cases there cited.
It is plain that her Honour was, and remained throughout the proceedings, acutely alive to any potential concerns that may have called for the appointment of a tutor.
In addition to the matters outlined above, the primary judge said at PJ [20] that although Michael claimed to have a disability in reading, writing and comprehension, there was no evidence to support this claim. Moreover, although given an opportunity to adduce supporting expert evidence regarding these claimed disabilities, her Honour also noted that no such further evidence was forthcoming.
The primary judge recorded at PJ [19]-[20] her personal observations of Michael’s competency in conducting the hearing. She was well placed to make those observations over the six days of the trial. Her Honour referred to his cross-examination of multiple witnesses “using written notes and sustaining lines of questioning [which] did not suggest to me that he was suffering from any relevant disability”, the fact that no such disability was relied upon as part of the alleged special disadvantage Michael claimed to have suffered to set aside the 2018 Deed as unconscionable and that no disability was mentioned in his lengthy affidavit (prepared when he was represented by Clayton Utz), and Michael failing to take up any of the opportunities afforded to him to adduce evidence of his alleged disability.
I will return below to explain why I respectfully agree with her Honour’s observations, having regard in particular to that which is revealed by the transcripts of the lengthy trial.
Mr Wong also summarised his interview with Mr Brett Wilson, who had known Michael for three years and was currently a contractor with Michael’s marble business.
Mr Wong described his review of records from NSW Ambulance relating to an attendance upon Michael in the Supreme Court on 29 August 2024. Mr Wong noted that the paramedics had recorded that Michael was “alert and orientated” and had “no basic competency and capacity issues in relation to responding to ambulance workers”. If anything, this material is inconsistent with the proposition that Michael lacked capacity at this time.
The appellants highlight the following opinions expressed by Mr Wong in his 3 December 2025 report:
Finally, although it does not strictly arise, I would also add that I do not regard [22] of Ms Tucker’s affidavit as providing probative evidence of what the appellants would have done if they had been given more information regarding the escrow condition. For convenience, that particular paragraph is as follows (without annexures):