Maria Di Giannantonio v Michael Di Giannantonio

Medium Neutral Citation: Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346

Hearing dates: 26 – 29 August, 2 – 3 September 2024

Date of orders: 11 April 2025

Decision date: 11 April 2025

Jurisdiction: Equity - Real Property List

Before: Williams J

Decision: See orders at [389].

Catchwords: DEEDS – Execution and attestation – Intention to create deed – Delivery in escrow – Intention by parties delivering deed to be immediately bound on condition that deed becomes effective only upon execution by other party – Held: Deed effective immediately upon satisfaction of escrow condition.
EQUITY – Unconscionable conduct – Whether defendants’ execution of deed procured by plaintiff taking unconscientious advantage of alleged special disadvantage of first defendant – Held: No. Special disadvantage not established.
CONTRACTS – Contracts Review Act 1980 (NSW) – Whether deed unjust – Held: No.
EQUITY – Equitable remedies – Specific performance – Where the plaintiff has carried out her obligations under the deed – Where defendants are in default under the deed – Held: Specific performance of the deed ordered.
ESTOPPEL – Proprietary estoppel – Where plaintiff became sole registered proprietor of family home by right of survivorship upon death of her husband – Where first defendant is the son of the plaintiff and the deceased – Where first defendant seeks a declaration that he has an equitable interest in the family home and that 50 per cent of that property is held on trust for him by the plaintiff – Where first defendant claims the deceased made representations to him, to the knowledge of the plaintiff, that he would inherit the family home – Whether representations were in fact made – Whether first defendant acted in reliance on the alleged representations – Where the first defendant has acknowledged by deed that he has no equitable interest in the property and has released the plaintiff from any claims against the property – Held: The deed is a complete defence to the proprietary estoppel claim, and the alleged promises were not provided in any event.
SUCCESSION – Family provision – Approval of release – Where first defendant has released his rights to apply for an order for family provision out of the whole or any part of the plaintiff’s actual or notional estate – Consideration of matters in Succession Act 2006 (NSW) s 95(4) and circumstances of the case – Held: Release approved under s 95 of the Succession Act 2006 (NSW).

Legislation Cited: Civil Procedure Act 2005 (NSW), s 101(4)
Contracts Review Act 1980 (NSW), ss 4, 6(1), 6(2), 7, 9
Conveyancing Act 1919 (NSW), s 38
Corporations Act 2001 (NSW), s 127(1)(c), 127(3)
Evidence Act 1995 (NSW), s 140
Limitation Act 1969 (NSW) ss 27, 36, 47, 49
Real Property Act 1900 (NSW), s 74MA
Succession Act 2006 (NSW), s 95

Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Browne v Dunn (1893) 6 R 67
Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104
Chant v Curcuruto [2021] NSWSC 751
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
Eggins v Robinson [2000] NSWCA 61
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kelly v Kelly [2019] NSWSC 994
Kramer v Stone (2024) 421 ALR 106; [2024] HCA 48
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162
Nitopi: Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102
Payne v Parker [1976] 1 NSWLR 191
Pittmore v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36
Re Estate of Legler [2024] NSWSC 726
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18
Segboer v A J Richardson Properties Pty Ltd [2012] NSWCA 253
Singh v AKM Investments Group Pty Ltd [2024] NSWCA 26
Stoltenberg v Bolton (2020) 380 ALR 145; [2020] NSWCA 45
Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Warner v Hung; In the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liquidation) (No. 2) (2011) 197 ALR 56; [2011] FCA 1123
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited: Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [2.5], [2.6]

Category: Principal judgment

Parties: Maria Di Giannantonio (Plaintiff)
Michael Di Giannantonio (First Defendant)
Mamro Pty Ltd (Second Defendant)

Representation: Counsel:
Mr L Livingston and Mr H Cooper (Plaintiff)
Michael Di Giannantonio (Litigant in Person) (Defendants)
Solicitors:
De Pasquale Lawyers (Plaintiff)
Michael Di Giannantonio (Litigant in Person) (Defendants)

File Number(s): 2022/25305

Publication restriction: N/A

table of contents

Introduction [1]

Salient facts [14]

Introductory observations in relation to the evidence [14]

The acquisition and improvement of the Haberfield property during Michele’s lifetime [40]

Michael’s involvement in the Haberfield extension works [92]

Michele passes away in September 2009 [108]

Michael obtains an “early inheritance” during 2010 and 2011 [137]

Michael purchases Belli Bar in 2011 [160]

The Haberfield property is mortgaged to secure a loan for Michael’s benefit in 2013 [166]

Maria requires Michael to move out of the Haberfield property in September 2016 [179]

Michael asks to move back to the Haberfield property in 2018 after his separation from Melanie [192]

The negotiation of the 2018 deed [207]

The terms of the 2018 deed as executed [260]

Findings in relation to the negotiation and execution of the 2018 deed [280]

Events following the execution of the 2018 deed [298]

The parties’ claims and defences [307]

Consideration and determination [330]

Issue 1: Did the parties mutually agree to be bound by the 2018 deed? [331]

Issue 2: Is the 2018 deed liable to be set aside as unconscionable or on the basis of the alleged undue influence of Maria’s daughters? [340]

Issue 3: Is the 2018 deed liable to be set aside under the Contracts Review Act? [347]

Issue 4: Have Michael and Mamro elected to affirm the 2018 deed or are they estopped from alleging that it is void or unenforceable? [354]

Issue 5: Michael’s claim to a proprietary interest in the Haberfield property [355]

Issue 6: The parties’ competing claims for declaratory relief [370]

Issue 7: Maria’s application for an order for withdrawal of the caveat [373]

Issue 8: Should the Court make an order for specific performance of the 2018 deed? [374]

Issue 9: Maria’s application for approval of the release in clause 8 of the 2018 deed pursuant to s 95 of the Succession Act [377]

Issue 10: Costs [388]

Conclusion and orders [389]

JUDGMENT

Introduction

1. The late Michele Di Giannantonio passed away on 7 September 2009, survived by his wife Maria Di Giannantonio and their four children – Daniela (born in 1964), Paula (born in 1968), Adriana (born in 1971), and Michael (born in 1972, who is also known to family members as “Micky”). In 1966, Michele and Maria acquired a property at 2 Crescent Street, Haberfield, as joint tenants. [1] Upon Michele’s death, his interest in that property passed to Maria as the surviving joint tenant by right of survivorship. By his last will dated 11 July 2007, Michele appointed Maria as his executrix and bequeathed his remaining assets to her as the sole beneficiary of his estate. Michele’s estate comprised a half share in property at 151-153 Parramatta Road, Annandale, [2] a half share in property at 44-46 Moore Street, Leichhardt, [3] shares in Finewest Holdings Pty Ltd [4] and MTP Marble & Granite Pty Ltd, [5] and two apartments in Rome, Italy. If Maria had not survived Michele, the assets comprising his estate would have been held on the testamentary trust established under his will in favour of Michael (as to 50 per cent) and Daniela, Paula and Adriana as tenants in common (as to 50 percent). Maria made a will at the same time as Michele made his last will on 11 July 2007 which established a testamentary trust in the same terms in the event that Michele predeceased her.

2. These proceedings arise out of events that occurred over a period of approximately ten years after the death of Michele.

3. In short, Michael caused the whole of Maria’s interest in the Annandale and Leichhardt properties that she had inherited from Michele to be transferred to Mamro Pty Ltd, [6] of which Michael was (and remains) the sole director and shareholder, for no monetary consideration. The shares that Maria inherited in Finewest Holdings and MTP Marble & Granite became worthless after Michael established, MTP Marble Granite Sandstone Pty Ltd, [7] in October 2010 to carry on the business that had been conducted by MTP Marble & Granite, using the assets of MTP Marble & Granite. Michael was the sole director and shareholder of MTP Marble Granite Sandstone.

4. This delivered to Michael the whole of Maria’s interest in assets in respect of which he had stood to receive only a half share under the testamentary trust provided for in Maria’s will dated 11 July 2007, and correspondingly reduced the pool of assets in which his three sisters collectively stood to receive the other half share under that testamentary trust when Maria died.

5. Maria retained the Haberfield property, but she granted a mortgage over that property in May 2013 to secure a loan taken out by Mamro to fund the purchase of a quarry property at Maroota in New South Wales. As I have already mentioned, Michael is the sole director and shareholder of Mamro.

6. All of this occurred while Michael and his partner, Ms Melanie Hunter, were living at the Haberfield property together with Maria.

Salient facts

Introductory observations in relation to the evidence

14. As was submitted on behalf of Maria, each witness in these proceedings gives evidence of events and conversations alleged to have occurred at least more than a decade, and sometimes many decades, before they made their affidavits. In assessing the evidence of each witness, it is therefore necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman: [8]

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

15. As discussed later in these reasons, the need for caution in assessing witness testimony of conversations said to have occurred many years ago is particularly acute in relation to Michael’s evidence of conversations that he claims to have had with his deceased father which is the foundation of Michael’s proprietary estoppel claims in these proceedings. Michele is obviously unable to respond to Michael’s evidence about those alleged conversations. [9]

16. The factors referred to by McLelland CJ in Eq in Watson v Foxman require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities, [10] noting that witness testimony may still be of value and importance including by providing evidence of the context in which relevant documents and events must be understood. [11]

17. Unlike Michael’s proprietary estoppel claim, Maria’s claim for specific performance of the 2018 deed is founded principally on documentary evidence.

18. Evidence was led in Maria’s case from Maria herself, from her daughters Adriana and Daniela, and from her neighbour Dr Alex Shearer.

19. In cross-examining Maria, Adriana and Daniela, Michael left many important aspects of their affidavits unchallenged. Having regard to the fact that Michael appeared for himself and Mamro at the final hearing, Maria very fairly accepts that it would not be appropriate to strictly apply the rule in Browne v Dunn. [12] However, I accept the submission made on behalf of Maria that, in the course of the fact-finding process, the Court is entitled to attach some significance to the decisions made by Michael not to challenge certain parts of the affidavits of each witness. I consider that those decisions are appropriately viewed as decisions made by Michael rather than accidental omissions. Michael requested and was allowed time to re-read the affidavit of each witness before commencing the cross-examination of that witness. I had explained to Michael at the outset of the hearing the difference between evidence and submissions, that the case would be decided on the basis of the evidence, and that submissions made by either party about disputed factual matters would carry no weight unless supported by evidence. Maria was the first witness to give oral evidence in the proceedings. At the outset of Maria’s cross examination, I explained to Michael that he was entitled to challenge Maria about anything in her affidavit that he did not agree with. I also explained to him that it may be difficult for him to make a submission that any particular aspect of her evidence should not be accepted if he did not ask Maria a question about that aspect. Michael’s cross-examinations were lengthy, robust, and persistent. Michael certainly did not shy away from challenging in strident terms aspects of the evidence of a witness that he chose to address.

“Q. So you advised Therese what to write in this deed?

A. INTERPRETER: Sure, if I was the person doing the contract I would have told her what to do. I would ‑ it wouldn't have been her telling me what to do.

Q. So surely you would remember what's in this deed?

A. INTERPRETER: It ‑ it has been done in 2018. That's quite a few years ago. That's the reason why that I ‑ we are in Court. I think it's about this, so it has been a few years. It's not that I can remember everything about it.

Q. Isn't it the case, Maria, you did not tell Therese what to write in this deed?

A. INTERPRETER: What is written there would ‑ would be something that I told Therese to do. I would have not been able to tell her the words to use about what I wanted to be put into the document, but if it is there it's because I told her to do it.”

29. Having failed to establish that Maria did not participate in the process of drafting the 2018 deed, Michael directed questions to Maria’s understanding of various provisions of the deed in an attempt to establish that she did not understand at the time what had been written. Maria did not claim to be able to explain the legal meaning and effect of each of the terms of the document, but maintained that she had given the instructions that had resulted in the drafting of those terms. Upon being asked “who came up with” the clause of the 2018 deed which records Michael’s agreement to release and discharge Maria for all costs incurred by him for renovation works to the Haberfield property and any other claim that he may have over the Haberfield property, Maria answered (through the interpreter):

“It seems to me that what you’re trying to do is to put me in a situation where I - I would end up saying that someone else told me to write this. But the circumstances at the time were such that we ended up with this that is written here.”

30. As senior counsel for Maria submitted, Maria’s evidence referred to at [28] above is entirely consistent with the process typically followed by a solicitor creating a legal document on behalf of a lay client based on their instructions. As will become apparent later in these reasons, the “circumstances at the time” referred to in Maria’s answer immediately above included that Michael had caused Maria’s interests in the Leichhardt and Annandale properties to be transferred to Mamro in June 2011 and October 2014 (respectively) without having signed a deed that Maria had required to be signed as a condition of her agreement to the transfer of those property interests.

31. As I have already mentioned, Michael’s attempts to impugn the 2018 deed by suggesting that it did not reflect Maria’s intentions was driven by his contention that he articulated repeatedly throughout the hearing, including during his cross-examination of Adriana and Daniela, that his sisters had dictated or influenced the terms of the deed. That contention was revealed by his cross-examination of Maria, Adriana and Daniela to be unfounded.

32. Towards the end of the cross-examination, Michael resorted to what I regard as a blatant attempt to exert emotional pressure on Maria to accept his contention and give up her claim to enforce the 2018 deed. Michael said to Maria:

“Maria, mum - you're my mum, mate. You need to understand this deed, mum. You don't understand it. You didn't ‑ you did not write it, because you're telling me to give up all my shares, mum. My $700,000 that I spent. You're asking me to let the judge accept this deed that you don't understand, mum.”

33. As will become apparent later in these reasons, Michael’s reference in this statement to “My $700,000 that I spent” is one of his formulations of the total amount that he claims to have spent on an extension to the Haberfield property during the period from about 2007 until about 2011. The statement above was rejected and Michael was directed to confining himself to asking questions, resulting in the following exchange with Maria a short time later (emphasis added):

“Q. Mum, do you agree - mum, do you agree that by me signing this deed, that I will not get any of dad's inheritance?

A. INTERPRETER: I don't understand the question

Q. Mum, I knew you didn't understand the question. I'm going to repeat as best as I can because I know exactly what you're saying. Mum, do you agree by me signing this deed, that I will not get any inheritance?

A. INTERPRETER: I don't know what to say, I don't know whether your question reflects what happened. I already gave you when my husband died, I already gave you things, so I don't know what to say about it.

Q. Mum, in your words just now, you said - that I understood in Italian - you don't understand.

A. INTERPRETER: No, I do understand your question really well. What I don't understand is what else do you want given that I already have passed on to you what things – properties.”

34. To her credit, Maria did not hesitate to acknowledge in cross-examination that certain matters were beyond her knowledge. This is best illustrated by Maria’s answers under cross-examination about the money that Michael claims to have spent on the Haberfield extension works to which I have referred above. [14]

35. Each of Daniela and Adriana gave evidence in a clear and forthright manner, responding directly and in appropriately brief terms to the questions asked of them without giving speeches or engaging in argument with their brother. Daniela remained calm and engaged in the process, even in the face of Michael trying to induce an emotional reaction by asking whether she loved Maria and whether he was her “favourite brother”. As was submitted on behalf of Maria, nothing in the cross-examination of Daniela and Adriana cast doubt on the credibility of either witness.

36. Adriana was able to give detailed evidence about the family marble business that is relevant to the issues in dispute in these proceedings, and Daniela was able to give important evidence about the events of May 2018 which were the catalyst for Maria permitting Michael to return to live at the Haberfield property on the basis that he sign a deed. By contrast, Paula was not a party or witness to any of the conversations or specific events that have given rise to these proceedings. Paula’s evidence would not have elucidated any particular matter relevant to the determination of these proceedings, save that Paula could have given evidence about family relationships and the dynamics of the Di Giannantonio household during Michael’s childhood and teenage years when he claims that Michele promised him the Haberfield property. However, any such evidence from Paula would have been merely cumulative evidence of those matters which were addressed by each of Maria, Daniela, and Adriana. Michael was plainly frustrated by the fact that Paula did not give evidence, but neither the pleadings nor Michael’s own evidence raised any matter for Paula to explain or contradict. Accordingly, as Maria submitted, the absence of evidence from Paula does not give rise to an inference that her evidence would not have assisted Maria’s case. I reject Michael’s submission to the contrary. [15]

37. Dr Shearer’s evidence was narrow in scope. As explained at [70]-[71] below, Michael did not challenge in cross-examination the only aspect of that evidence that is material to the issues to be determined in these proceedings.

38. Michael was a most unsatisfactory witness, whose credit was seriously undermined by: (1) inconsistencies within his own evidence, some of which affected aspects of his evidence that were of central importance to his defence and cross-claim in these proceedings; [16] (2) his exaggeration of the extent of the work that he claimed to have done on the Haberfield property during his childhood and teenage years compared to his sisters; [17] (3) his exaggeration of the costs that he claimed to have incurred in extending the Haberfield property in later years; [18] (4) his evasiveness in cross-examination, during which he sought to avoid answering questions about the substance of the 2018 deed by asserting that the deed was not made by Maria (who sues to enforce it) but by his sisters (who Michael asserted were ); [19] (5) his frequent attempts to avoid answering questions by directing his responses to a point in time other than the time to which the question had been directed, or directing his responses to a conversation other than the one to which the question had been directed, if he felt that the answer to the question asked would not assist his defence and cross-claim; [20] and (6) his readiness at times during his cross-examination to say anything that he thought in the heat of the moment might assist his defence and cross-claim. [21] For all of those reasons, I do not accept Michael’s evidence unless it is contrary to his own interests, corroborated by contemporaneous documents or some other reliable source, or consistent with the inherent probabilities.

The acquisition and improvement of the Haberfield property during Michele’s lifetime

40. Maria married her late husband, Michele, in 1961. In 1966, Maria and Michele purchased a property at 2 Crescent Street, Haberfield, as joint tenants. [23] They moved there with their eldest child, Daniela, who had been born in 1964. Three more children followed – Paula (born in 1968), Adriana (born in 1971), and Michael (born in 1972). The Haberfield property was the family home in which all of the children grew up. Daniela, Paula and Adriana each lived at the Haberfield property until they were married. Michael lived at the Haberfield property during the whole of his childhood and school years. Michael’s evidence refers to a period of time in which he lived in other properties owned by “the family”. According to Maria’s evidence, this was the period between about 1993 when Michael moved out after finishing school in 1992, and about 2005 when Michael moved back into the Haberfield property with Melanie. Michael then remained at the Haberfield property together with Melanie until about September 2016, when he moved out before moving back in again in about May 2018 in circumstances to which I refer later in these reasons. [24] Maria continues to live in the Haberfield property today.

41. Throughout her marriage until about five years before Michele passed away, Maria worked part-time as a hairdresser in addition to being the homemaker for the family.

42. Michele worked in a marble, granite and stone business that he had established together with his brothers, Eugenio and Attilio, through the corporate entity Marmo Terrazzo Products Pty Limited, [25] which had been registered in 1972. Adriana gave evidence that the business was transferred to a new entity – MTP Marble & Granite Pty Limited [26] – in about 1996 after Marmo Terrazzo received a workers compensation claim in 1994 that it could not afford to pay. Finewest Holdings Pty Limited [27] and Michele were the shareholders of MTP Marble & Granite. Michele was the shareholder of Finewest Holdings. Marmo Terrazzo was deregistered in 1997.

43. Michael claims to have done extensive work on the Haberfield property together with his father during his childhood and teenage years, and during his adult life, relying on promises that he says his father made to him to the effect that Michael was working to improve the property that he would one day inherit.

44. According to Michael’s evidence, he and Michele worked together on the Haberfield property for many hours a week during the evenings and weekends over many years, improving the property and increasing its value by modifying the front yard, concreting the back yard and building a gazebo, building a large garage on the ground floor, building a granny flat, installing a lift shaft and an additional level to the home, and carrying out extensive internal renovations to the bathrooms, bedrooms, living rooms and kitchen.

45. Michael gave evidence that he did the following work on the Haberfield property together with his father during his childhood (between the ages of 5 and 17 years, during the period between about 1977 and 1989):

“Until his death, I worked nearly every day for my dad. The nature of the work varied, from building and installing the carport at the front of the house and sanding and painting timber to construct steel posts for the carport, to reinforcing the concrete for the main stairs of the house with the help of Armando and Bruno. Every day was something different, but the common factor was that I was working with my dad in the expectation and belief that one day, I would be rewarded for my hard work when the Haberfield Property would become mine. My mum knew that this was my expectation, as she was present in several discussions when dad said to me words to the effect that ‘this will all be yours’”.

52. Maria gave evidence that Michele began renovating the Haberfield property shortly after they purchased it, beginning with excavation work under the house in 1966. The excavation work was completed by 1970, before Michael was born. Michele employed qualified builders, carpenters and other tradesmen to do the work. Michele had neither the time nor the skills to undertake any of the structural or major works. Michele’s involvement in the work was limited to assisting the tradespeople by providing his manual labour when he was at home on the weekends. During the week, Michele required dinner when he returned from working at Marmo Terrazzo. He went to sleep after dinner, as he rose very early every morning to return to the marble factory. Michele did not work on the Haberfield property in the evenings.

53. According to Maria’s evidence, Michele required all of his children to assist with the manual labour that he did to help the tradespeople at the Haberfield property, but most of the burden of this fell on his eldest children Daniela and Paula. Daniela was required to lift bricks and move them from one part of the Haberfield property to the other, while Paula’s job was to clean all the mess that was left by the tradesmen. Michele did not have the same expectations of Adriana and Michael, as most of the major renovation work to the Haberfield property had been completed by the time they were old enough to help. Michael did help out from time to time at the Haberfield property after finishing school in 1991, but he did not do renovation or construction work. All of that work had been finished by the time Michael finished school, until about 2005 when Michele decided that he wanted to start building an additional level on the home that he had been planning for some time. In relation to Michael’s claim to have worked on building a carport at the front of the Haberfield property and reinforcing concrete for the main stairs of the house in the period after 1991, Maria gave evidence that there is no carport at the Haberfield property and the main stairs were completed at some time before 1989 when Paula was married. Maria also gave evidence that Michael moved out of the Haberfield property in about 1993 to live in a property owned by Michele and his brothers at 38-40 Moore Street, Leichhardt. Michael did not move back into the Haberfield property until about 2005.

54. Maria denies that Michael did the work described in his evidence referred to at [45] above, save for carting some bricks and tiles around the Haberfield property which she says was labouring work that was done by all of the children. Michele engaged qualified tradespeople to do the other work referred to by Michael, which Michael lacked the skill and experience to do. According to Maria’s evidence some of that work referred to by Michael was done before he was even born, or at a time when he was very young and would not have had the physical strength to do the work.

55. Maria gave evidence that Michael and Adriana did go to the marble factory with Michele, their Uncle Attilio, and two of their cousins on weekends during Michael’s childhood, but this was to play and not to work. Maria expressed the view that Michele would not have allowed Michael or any child to work with the heavy machinery at the marble factory. Maria recalls Michele and Attilio constantly getting angry at Michael and his cousins Silvio and Glorio because they would misbehave when they accompanied Michele and Attilio to the factory. Michael may have worked a few hours at the factory on a Saturday or during school holidays from time to time during his later teenage years while he was still at school, but he did not work at the factory after school every weekday. It was Adriana who was working full-time at the factory with Michele after leaving school in year 10, while Michael completed years 11 and 12 at school. According to Maria’s evidence, Michele had encouraged Michael to complete school because he was immature and Michele wanted him to get an education. Michael first started working at the marble factory full-time after finishing school.

“Michael was never promised by me or his father that he would inherit the Haberfield Property to the exclusion of our three other children. I never agreed to such arrangement and Michele never said anything to Michael to the effect that ‘this will be all yours’. Whatever expectation that Michael had was Michael’s alone and never promised by me and/or his father.”

64. In her affidavit sworn on 17 July 2023, Adriana deposed:

“How Michael could have formed an expectation or belief that he would be rewarded for his hard work, I do not know. I do not recall him doing any work at the Haberfield Property and I don’t ever recall my Dad saying anything like ‘this will all be yours’ to Michael or anything like that.”

65. In her affidavit sworn on 17 July 2023, Daniela deposed:

“58 My Dad never said that the Haberfield Property would one day be Michael’s. …

59 Michael wanted everything. He would regularly say words to the effect: ‘I am the man of the house and you girls shouldn’t have anything. Everything should stay in the Di Giannantonio name.’ I have no idea where he got these ideas from other than his own selfish purposes.

60 He knew I had nothing and tried to get me on his side saying that he would look after me and make sure that I got what was mine and that I should move into the Haberfield Property.”

66. As I have explained earlier in these reasons, Michael cross-examined Maria over approximately one and a half days. To the extent that the cross-examination touched on Maria’s evidence to which I have referred at [52]-[55], [62], and [63] above, Maria adhered to the substance of her evidence. Towards the end of the cross-examination, Maria gave the following evidence:

“Q. Mum, isn’t it true that I washed – I cut the grass, and I washed that yard every Sunday?

A. INTERPRETER: This is really a silly question. This is all getting too silly. You did things, I did things. I did all that needed to be doing. It’s not like I was checking on you, what you were doing at all times.

Q. No, I’m not saying that you were checking, mum, but that’s okay. But I did a lot of work with dad, mum, didn’t I?

A. INTERPRETER: That seems to be only right, you were his son, you were living in the house, you did some of the work in the house, like I had things to do in the house myself.

Q. Mum, I did a lot of work inside and outside of the house and you were there watching me with dad, yes?

A. INTERPRETER: Yes, we’re going around in circle here. You were there with your father, and you were doing something, you were laughing, you were joking, you were going around, and you were doing things. That’s what – how it was.

Q. Mum, I was always with dad, wasn’t I?

A. INTERPRETER: Almost always, when you were not out with your friends.”

67. Michael conducted a relatively short cross-examination of Daniela which spanned two hearing days. Michael did not challenge any of Daniela’s evidence referred to at [56], [62], [63] and [65] above.

68. In cross-examining Adriana, Michael did not challenge her evidence referred to at [64] above that she had no recollection of ever hearing her father tell Michael that “this will all be yours” or words to that effect. To the very limited extent that Michael challenged Adriana’s evidence referred to at [57]-[63] above, Adriana adhered to the substance of that evidence in cross-examination.

69. In his cross-examination of Maria conducted over one and a half days, Michael did not put to Maria that she had ever heard Michele say that the Haberfield property would be his one day. Nor did Michael give evidence that Maria herself ever said anything to him suggesting that he alone would inherit the Haberfield property one day. Under cross-examination by senior counsel for Maria, Michael merely asserted that Maria and his sisters knew that his father wanted him to inherit the Haberfield property.

70. None of Michele’s friends identified by Michael as having worked on the Haberfield property were called to give evidence, [28] with the exception of Dr Alex Shearer. Dr Shearer, who has owned and lived in the property next door to the Haberfield property since 1965, was called as a witness in Maria’s case. Dr Shearer gave evidence that there was always work being done on the Haberfield property, and that Michele had workers there all the time. Dr Shearer did not recall seeing Michael working on the property in all of the years that he lived next door, although he could not deny that Michael may have done some work as he had not paid particular attention to who was doing the work at any given time.

71. Dr Shearer also gave evidence that Michele had never said in his presence anything to the effect that the Haberfield property would one day be Michael’s property. Dr Shearer deposed that he believed he would have recalled if Michele had said anything along those lines, as Dr Shearer would have considered it strange for Michele to plan to give the home to only one of his four children. Michael did not challenge this aspect of Dr Shearer’s evidence in cross-examination.

72. Under cross-examination, Michael maintained that he undertook all of the work on the Haberfield property described in his affidavit evidence summarised at [43]-[51] above, and that his father had promised that the Haberfield property would be his in the future. Michael accepted that his father engaged tradespeople, but maintained that he assisted his father and the tradespeople. Michael denied deliberately overstating the level of his contribution to that work. Ultimately, Michael’s evidence boiled down to this exchange with the cross-examiner:

“Q. Mr Di Giannantonio, when you and your sisters were children—

A. Yes.

Q. -- each of you carried out work at the Haberfield property—

A. Yes.

Q. -- under the direction of your father, correct?

A. We did.

Q. You did no more and no less work at the Haberfield property at the direction of your father than your sisters did; correct?

A. That’s rubbish. Absolute rubbish and I’ll tell you why, sir. The kids – my sisters got married quite early, so, they all left the family home and I was left there to take all the brunt.”

73. For the following reasons, I reject Michael’s evidence about the nature and extent of the work that he claims to have done at the Haberfield property during Michele’s lifetime.

74. Michael’s evidence is uncorroborated and inconsistent with the evidence of Maria, Daniela and Adriana. Each of Maria, Daniela and Adriana gave evidence that Michele employed skilled tradespeople to carry out the work at the Haberfield property, that Michele did not carry out the work himself other than by providing his manual labour to assist the tradespeople, that all of the children were required to assist, and that Michele did not work on the property or require the children to do so during weekday evenings after he had already worked a long day at the marble factory. There are differences between the evidence of Maria, Daniela and Adriana of the kind that is to be expected given their different ages and their different roles within the household during the relevant period of time, and bearing in mind that more than 30 years have passed since that period. The substance of the evidence that each of them gave about the improvements to the Haberfield property was nevertheless broadly consistent. Their evidence is inherently probable, whereas Michael’s evidence is inherently improbable. Michele was a stonemason. It is likely that he had some understanding of the skill required to carry out building work of the kind that was done at the Haberfield property during his lifetime. The Haberfield property was Michele’s family home, and a valuable asset. It is inherently improbable that Michele carried out such work at the Haberfield property himself during evenings and on weekends, after he had worked long hours at Marmo Terrazzo, enlisting the help of Michael, who was a child or teenager for most of the period in which the work was carried out and had no relevant skills or qualifications to contribute to the work as a young adult. As referred to at [72] above, Michael ultimately accepted in cross-examination that Michele did engage tradespeople to carry out the work. I prefer the evidence of Maria, Daniela and Adriana to the evidence of Michael for the reasons explained at [23]-[38] above.

75. In an attempt to defend his claim to have done more work on the Haberfield property than his sisters under cross-examination, Michael asserted that he was the only one at home “to take all the brunt” of the work because his sisters left home at an early age to get married. That assertion is contrary to Daniela’s evidence that she moved out of home in 1987, Maria’s and Adriana’s evidence that Paula moved out of home in 1989, Maria’s evidence that Michael moved out of home in 1993, and Adriana’s evidence that she moved out of home in 1995. I accept that unchallenged evidence of Maria, Daniela and Adriana, which establishes that Michael’s sisters lived at home throughout all of his childhood, and that at least one of his sisters lived at home during his teenage and young adult years. That covers the whole of the period in which Michael claims to have done most of the work on the Haberfield property described in his affidavit. Indeed, Michael moved out of the Haberfield property even before Adriana. I formed the impression during this part of Michael’s cross-examination that he was prepared to say anything that he thought in the heat of the moment would support his defence and cross-claim.

“Where a party seeks to rely upon spoken words as a foundation for a cause of action, … the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. … In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

79. For the following reasons, I do not feel actual persuasion that Michele made the promises alleged by Michael.

80. First, Michael’s evidence based on a recollection that he claims to have of things said to him so many years ago is inherently unreliable due to the well-known fallibility of the human memory, which ordinarily increases over time, “particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should or could have been said”. [32]

81. Second, it is inherently improbable that Michele made the alleged promises to give the Haberfield property (together with the business and other properties) to Michael alone, because this would have had the grave consequences of excluding his three daughters from inheriting any interest in their family home or his other assets, in circumstances where Michael’s contribution to the property was no greater than the contribution made by his sisters, as I have found above.

82. Third, the alleged promises are inconsistent with the terms of Michele’s last will made on 11 July 2007.

83. By clause 1 of his last will, Michele appointed Maria to be his sole executrix and trustee. In the event that Maria predeceased him, or died before a grant of probate, Michele appointed Michael as his executor and trustee.

84. By clause 3, Michele gave the whole of his real and personal property to Maria contingent upon her surviving him for more than 30 days. If Maria predeceased him or failed to survive him for more than 30 days, then Michele gave all of his real and personal property to his trustee to pay all of his debts, funeral and testamentary expenses and any taxes or duties, and to hold the residue on trust for Michael (as to a one half share) and for Paula, Adriana and Daniela (as to the other half share, to be divided equally between them as tenants in common).

85. Maria made a will at the same time which mirrored the terms of Michele’s will, leaving everything to Michele if he survived her and otherwise to Michael (as to a one half share) and to her three daughters as tenants in common (as to the other half share).

86. Michele’s execution of the will was witnessed by Mr John Lakos, solicitor, of Lakos & Company Lawyers, who had prepared the will.

87. Maria gave evidence that she recalled attending Mr Lakos’ office together with Michele a couple of times and discussing with him what to put in their wills. She and Michele agreed on the terms of their wills after receiving advice from Mr Lakos, and they signed those wills in 2007. Consistently with her evidence to which I have referred above that she never heard Michele promise the Haberfield property to Michael, Maria gave evidence that there was never any discussion or agreement between her and Michele that everything would go to Michael after they both passed away.

“I understood that the wills were identical because my dad was the boss and mum agreed with whatever dad thought was best for the family. Dad ran the household and I always understood that he spoke on behalf of mum in all matters relating to our family. I also understood that the wills provided that half of everything was to go to me because of what my dad had previously told me and because of all the work that I had done for him.”

90. However, Michael’s evidence of his understanding in 2007 that “half of everything was to go me” under the mutual wills made by Michele and Maria in September 2007 is fundamentally inconsistent with his evidence that he expected based on the promises allegedly made by his father that he would inherit everything, including the Haberfield property.

91. For all of those reasons, Michael has failed to establish on the balance of probabilities that Michele promised or represented to him during his childhood and teenage years, or during his adult life in the years after 1991, that the Haberfield property would one day be his.

Michael’s involvement in the Haberfield extension works

92. As I have already mentioned, Michael moved out of the Haberfield property in about 1993. When he returned in 2005, Melanie moved into the Haberfield property together with him.

93. It is not in dispute that Michele had been planning an extension to the Haberfield property to construct an additional storey on the house for many years. Those works commenced in about 2007.

94. According to Michael’s evidence, Michele did the work for the extension himself until March 2008, when he asked Michael to take over the work after receiving a letter from Ashfield Municipal Council stating that the work was unauthorised. Michael deposed that Michele and Maria asked him to build the extension so that he could live there and look after Michele and Maria in their old age. Michael gave evidence that he recalled both Michele and Maria saying to him on a number of occasions that “whatever money you spend on these works, you can get it back”. Michael then arranged for a builder, Mr Andrew Stanno, to take on the work and Michael himself “took over the project management aspect” of the extension in addition to helping Mr Stanno construct the lift shaft and rectify non-compliant works that Michael says had been done by Michele.

95. Melanie gave evidence that, on many occasions after moving into the Haberfield property together with Michael in 2005, she heard Michele say to Michael (in English) words to the effect of: “Don’t worry about money, everything is going to you”, “Everything is yours”, and “Just work on the house and the business because everything is going to you.” Melanie adhered to that evidence in cross-examination.

96. Maria and Adriana each gave evidence that Michele engaged qualified tradespeople to carry out the extension works, as had been his practice in the past. Each of them gave evidence that the works were almost completed before Michele died, and that Michele paid for the works out of funds of MTP Marble & Granite. Maria gave evidence that the only work that Michael arranged after Michele passed away in September 2009 was the tiling of the new level of the home, completion of the finishes in the bathroom, the fit out of the kitchen, and internal painting. All of the stone and marble was provided by MTP Marble & Granite’s factory. Adriana gave evidence to similar effect.

97. In cross-examination, Michael accepted that Michele or MTP Marble & Granite had paid for all of the extension works up “up to a certain stage” after which Michael said that Michele could not afford to keep paying for the works. Michael said that he then began paying for the works because his company Safespot Australia Pty Limited was “making a fair bit of money”.

98. According to an ASIC extract for Safespot Australia Pty Ltd which was admitted into evidence, that company was registered on 23 May 2007. Its directors and shareholders were Michael and Mr Davide Consalvo. Mr Consalvo ceased to be a director on 27 December 2007, but continued to be an equal shareholder in the company with Michael.

“Well, my personal funds were the company money, because I never took a wage. My father taught me to leave all the money inside the company so the company could afford to pay renovations, stock and things like that. If I didn’t need the money, there was no point in me taking it out of the company; we used to just leave it there.”

102. As I have mentioned above, Michael was the sole director of Safespot Australia, but only one of two shareholders, during the period in which the Haberfield extension works were completed. There is no evidence of any running loan account between Michael and the company. There is no evidence that any payments made by the company for the Haberfield extension works were accounted for in the company’s records as funds having been paid by the company to Michael, or as having altered the balance owing under any loan between Michael and the company.

103. During his cross-examination of Maria and Adriana, Michael presented numerous invoices to them. Neither Maria nor Adriana disputed the existence of the invoices. Maria acknowledged that Michael might have caused Safespot Australia to pay the invoices, adding “and the purpose for that was that so that you could live upstairs, which you did rent free for over ten years, so that’s all I [sic] can be said about it”. Maria said that Michele had not included her in decisions about the extension works while he was alive and that, after Michele’s death, Michael “didn’t include me in what needed to be done. You carried on the work so that you could go and live upstairs”. Michael asked Maria, “do you agree that I spent $664,000 on your property?”. Maria answered: “I can’t say yes or nay. I don’t know.” A short time later, Michael asked Maria whether he had spent $860,000 on the Haberfield extension works. Maria answered: “As I said before, it’s not something that I am in a position to know.” Adriana adhered to her evidence that she believed that Michele had paid for the works using funds of MTP Marble & Granite. As explained in her affidavit, Adriana’s belief is founded on her recollection of having seen payments for the Haberfield extension works recorded in the accounts of MTP Marble & Granite when she was working at that company, including for invoices issued to Safespot Australia.

104. The evidence summarised at [92]-[103] above does not provide a sufficient basis for the Court to make any findings about the total cost of the Haberfield extension works, or the extent to which Safespot Australia paid for the costs of those works. Nor does the evidence provide a sufficient basis for the Court to characterise any payments by Safespot Australia as payments out of Michael’s personal funds. Michael bears the onus of proving his contention that he carried out and paid for the Haberfield extension works, as this is an element of his proprietary estoppel claim in these proceedings. There is no dispute that Michael instigated and managed some of those works in the period after Michele’s death. However, Michael has failed to discharge his onus of proving that he incurred the costs of those works.

105. Even if I had been satisfied that Michael carried out extension works at the Haberfield property at his own personal cost, I would not have been satisfied that he did so on the understanding and expectation that the Haberfield property would ultimately be his, as he claims Michele told him over many years. [33] For the reasons I have already explained, Michael has not discharged his onus of proving that Michele made any such promises or representations. [34]

Michele passes away in September 2009

108. In his affidavit sworn on 22 February 2023, Michael deposed that:

“In or around August 2009, about two weeks before dad died, Melanie, my dad and I were together in the office at Moore Street. I remember dad standing up and saying words to the effect of ‘I’m changing the will for my son to take all of my estate. I’m going to call Lakos now to go and see him’. I understood ‘Lakos’ to be a reference to Mr John Lakos, my dad’s lawyer (Mr Lakos). Dad then made a phone call to Mr Lakos in front of me and Melanie and told him ‘I need to see you to change my will.’”

109. Melanie gave evidence that she remembered an occasion in August 2009 when she was sitting at her desk at the office in Moore Street together with Michele, who was sitting at his own desk, when Michele rang his solicitor, Mr Lakos and she heard them have a conversation in which Michele told Mr Lakos that he needed to speak with him “because I am worried and need to make changes to my will” and Mr Lakos told Michele, “You can’t do this over the phone. You need to come in and see me.” According to Melanie’s evidence, Michele’s condition deteriorated shortly after this conversation and he went to hospital where he later passed away.

110. Adriana gave evidence that Michele was hospitalised for about one month before he died. That is broadly consistent with evidence given by Maria that Michele went into hospital in mid-August 2009 and never came home. According to Adriana’s evidence, Mr Lakos visited him in hospital during that period on one occasion when Adriana was also present. Michele did not discuss changing his will with Mr Lakos during that visit.

111. Maria gave evidence that Michele did not discuss with her changing their mutual wills that they had made in 2007 at any time before he died. Maria also gave evidence of her view that, if Michele had decided to change his will before being hospitalised in August 2009, he would have made sure that it was changed and would also have ensured that Maria made corresponding changes to her will.

112. Michael’s evidence referred to at [108] above is not corroborated by Melanie’s evidence. Melanie does not even place Michael in the room at the time of the alleged conversation and sheds no light on the nature of the change that Michele is said to have told Mr Lakos he was contemplating making to his will. There is no medical or other evidence suggesting that Michele was incapable of enlisting the services of Mr Lakos to change his will, if he had wished to do so, during the period in which he was hospitalised in the weeks leading up to his death. Michele did not do so. There is no evidence of any material change in circumstances since Michele had made his last will in July 2007 that might have been likely to cause him to consider changing his will to leave the whole of his estate to Michael, excluding his three daughters. I do not regard Michael’s involvement in the Haberfield extension works for the construction of an additional storey in which Michael intended to live with Melanie as a relevant change in circumstances, irrespective of whether or to what extent Safespot Australia had paid for those extension works prior to August 2009. It is therefore inherently improbable that Michele had formed an intention to change his last will in August 2009, or that he telephoned Mr Lakos about this in August 2009. It is even more improbable that he did so without discussing his intention with Maria, who stood to inherit all of his assets under their mutual wills made on 11 July 2007. I do not accept Michael’s uncorroborated evidence of the alleged conversation between Michele and Mr Lakos for all of the reasons explained at [38] above. I also reject Melanie’s evidence as contrary to the inherent probabilities and unreliable due to the passage of time. For all of those reasons, I find on the balance of probabilities that Michele did not express to Mr Lakos, or to any other person in about August 2009, an intention to change his will made on 11 July 2007.

“Michele and I never had an intention to change our Wills. I have no idea how Michael could have formed this view. I have never promised Michael to give him all the properties because of all the work Michael had done because, Michele had arranged and paid for all the work. Michael had done work limited to some labouring work from time to time which was not anything more or less than what Daniela and Paula had done.”

124. Maria also gave evidence that Michael was pressuring her to transfer all of the properties to him from the time that Michele passed away. According to Maria’s evidence:

“He would say words to the following effect to me: ‘Mum, the Will says that I am entitled to everything. You need to give me Moore Street and Annandale because that is what the Will says. I will take care of the business.’ I was completely confused and now I understand that Michael lied to me.”

125. Maria also gave evidence that she expressed the view to her solicitor, Ms Therese De Pasquale, at the time, that she wanted someone to help her with day-to-day things because she felt overwhelmed and did not even know how to open a bank account. On Ms De Pasquale’s advice, Maria considered appointing Adriana as her attorney because she did not like the pressure that Michael was putting on her and “Adriana knew how to handle him”. Maria gave evidence that she instructed Ms De Pasquale to prepare a power of attorney in favour of Adriana, but she did not sign it “due to the pressure I felt from Michael”.

126. During his extensive cross-examination of Maria over one and half days, Michael did not challenge her evidence referred to at [124]-[125]. Michael did not challenge Maria’s evidence in cross-examination that she had transferred her interest in the Leichhardt and Annandale properties to Mamro because Michael “knew how to handle me, how to twist me around” (given in response to a question about whether Maria had owned the whole or only a half interest in those properties). However, Michael did put forward his own different account of how Maria’s interest in the Leichhardt and Annandale properties came to be transferred to Mamro. In his affidavit sworn on 22 February 2023, Michael deposed that Maria had said to him in early 2010 words to the effect “son you should take the Moore Street Property and Annandale Property before your sisters do”. Although he could not recall whether Maria expressed any reason why she thought that he should “take” those properties, Michael deposed that he believes that it was “because she felt that I deserved them because of all of the work I had been doing on the properties and because I was always looking after her.”

127. Maria’s evidence that she had no intention of changing her 2007 will in the aftermath of Michele’s death is consistent with a contemporaneous file note made by Maria’s solicitor, Ms Therese De Pasquale, to which I refer below. I accept Maria’s evidence that she had no such intention.

128. It is therefore inherently improbable that Maria wanted Michael to “take” the Annandale and Leichhardt properties, which would have deprived his sisters of any prospect of receiving the interest in those properties that Maria had bequeathed to them under her 2007 will.

129. I accept Maria’s evidence that Michael was pressuring her to transfer the Annandale and Leichhardt properties to him, as this is also consistent with Ms De Pasquale’s contemporaneous file note of her conference with Maria on 18 January 2010. That file note records that Ms De Pasquale explained to Maria that Michele had owned a half interest in the Annandale and Leichhardt properties, and that his interest in those properties would be transferred to her. Ms De Pasquale also explained to Maria that Michele had been the sole shareholder of Finewest Holdings, and that Maria would therefore become the sole shareholder of that company which in turn owned 98 per cent of MTP Marble & Granite. Michael owned the other 2 per cent of MTP Marble & Granite. The file note continues:

“I explained that everything was hers and that no-one had the right to pressure her into doing anything insofar as the properties are concerned. My job is simply to apply for Probate and to have the properties transferred to her. She indicated that she found it very overwhelming and she was feeling pressured, particularly by Micky in relation to what she should and shouldn’t do, and that he wanted Annandale and Moore Street transferred to him immediately. She further indicated that she did not know where to start insofar as the companies were concerned, in particular MTP, nor did she know how to pay accounts as her role all her life was simply to cook and clean for her husband.

She did not want to amend her Will at present and indicated that she wanted someone to come in, in her place to pen accounts and attend to the day to day matters insofar as her house was concerned and the various properties. I indicated that she could appoint a Power of Attorney, someone that would literally be in a position to do everything lieu of her and would have the same power as she would have insofar as the companies were concerned. She indicated that she wanted Adriana to take on that position and she wanted Adriana to work with Micky. I asked her whether I would be able to express this to her children and she indicated that she had no objection.”

130. Ms De Pasquale’s meeting with Maria on 18 January 2010 was followed by a further meeting later that afternoon with Maria, Michael, Daniela, Paula and her husband, and Adriana and her husband. I refer to Ms De Pasquale’s contemporaneous file note of that meeting at [132] below.

131. For those reasons, and for the further reasons at [38] above, I reject Michael’s evidence that Maria told him to “take” the Annandale and Leichhardt properties. As I have already stated, I accept Maria’s evidence concerning her intentions and the pressure that Michael was exerting. I find that, from the time of Michele’s death, Michael pressured Maria to transfer her interest in the Leichhardt and Annandale properties to him, which she ultimately did as will become apparent below. [41]

132. There is no dispute that Michael stepped into the role of managing the MTP Marble & Granite business after Michele died. Adriana, who had worked in the business for some years, endeavoured to assist Michael, at Maria’s request. Adriana gave evidence that she became concerned about how the business was being run and about funds being withdrawn from the company for extraneous purposes. I accept Adriana’s evidence about her concerns, which is corroborated by Maria’s evidence that Adriana expressed those concerns to her at the time and also by Ms De Pasquale’s contemporaneous file note of the meeting that she held with the family on 18 January 2010. That file note records that Ms De Pasquale explained to the family members the assets that were to be transferred to Maria under the terms of Michele’s will, including 100 per cent of the shares in Finewest Holdings which in turn owned shares in MTP Marble & Granite:

“… I indicated that there appeared to be an intermeddling of funds between the company accounts which needed to cease immediately. …

I indicated that all funds coming out of the MTP account should purely be in relation to wages and expenses of the company and all funds going into that account should be only in relation to monies paid to MTP for goods and services provided. Any funds coming out of the account for personal interest was illegal and could not be done.

I indicated that I would be contacting the bank to put a stop on that particular activity.”

133. The file note also records Michael’s reaction to Maria’s proposal to appoint Adriana as her attorney:

“I then indicated that Maria wished to appoint someone to take over the affairs so that she would have all bills paid on time and so she would know what is happening with the various accounts. I indicated that Maria wished to appoint Adriana as her Attorney.

At that time Micky stood up and stormed out of the office. I asked him to remain, but he refused indicating that his father would be turning in his grave and that Adriana was a fucking bitch because of what she had done, and that he worked in the business all his life. I again requested that he stay and he refused.”

134. Maria gave evidence that she had wanted to appoint Adriana as her attorney because Adriana “knew how to handle” Michael. Ms De Pasquale prepared the necessary document for Maria to sign, but she did not sign it “due to the pressure I felt from Michael”.

135. I reject Michael’s evidence that he was “always looking after” Maria after Michele died. There is no dispute that Michael paid the household expenses for the Haberfield property while he was living there during the period up to September 2016, and that he also paid personal expenses of Maria during that period. However, Michael paid those expenses in circumstances where: (1) in the period immediately after Michele’s death, Michael had practical control over the funds of MTP Marble & Granite in which Maria indirectly owned 98 per cent of the shares, before Michael later diverted the assets and business of that company to one of his own companies later in 2010; and (2) Michael was pressuring Maria to transfer her interest in the Annandale and Leichhardt properties to Mamro, and Maria ultimately agreed to do so subject to conditions which Michael disagreed with as referred to at [145]-[158] below. A half share of the rent from the Annandale property would otherwise have been payable to Maria, as would any profits of MTP Marble & Granite (through dividends paid to Finewest Holdings, of which Maria was the sole shareholder). Maria’s unchallenged evidence is that Michael received all of the rent from the Annandale property after Michele’s death, even before she transferred her 50 per cent interest in that property to Michael, and that Michael and Melanie treated the money in the company’s accounts as being for their own personal use.

136. Michael did not “look after” Maria in any meaningful sense of those words by paying her expenses while living in her Haberfield property rent-free and while treating her company’s funds and the rental income from her property as his own, before diverting the company’s assets and business for his own benefit and pressuring her to transfer the real property to him. I note Maria’s unchallenged evidence that Michael ceased paying her expenses when she required him to move out of the Haberfield property in September 2016 in the circumstances described at [179]-[191] below.

Michael obtains an “early inheritance” during 2010 and 2011

137. Maria was granted probate of Michele’s estate in about March 2010. According to Maria’s evidence, Michael continued to apply the pressure that he had been exerting since Michele’s death in September 2009, urging her to transfer the Leichhardt and Annandale properties to him. According to valuations obtained for the purpose of probate, the half share of 44-46 Moore Street, Leichhardt owned by Michele’s estate was worth $550,000 and the half share of 151-153 Parramatta Road, Annandale owned by Michele’s estate was worth $750,000. The Annandale property was unencumbered. It appears that the Leichhardt property was subject to a mortgage, but the evidence does not disclose the amount of the debt secured against that property.

138. According to Maria’s evidence, Michael said to her words to the following effect in the period after she obtained probate:

“Dad’s Will says that I get the Moore Street Property and Annandale Property. I will look after you and Daniele. Paul and Adriana are rich enough. You don’t know anything about the business so I will take that and the rent is going into the company account and I will make sure you are looked after. You can’t trust the girls.”

139. I repeat my observations and finding at [135]-[136] above in relation to Michael’s claim to have been “looking after” Maria.

140. As I have already mentioned, Maria gave evidence that Michael told her in the period after she was granted probate of Michele’s estate that he would “take” the business because Maria did not know anything about it. Each of Maria and Adriana gave evidence that this is precisely what Michael did. Michael did not require the shares in MTP Marble & Granite or Finewest Holdings to be transferred to him, but he registered his new company MTP Marble Granite Sandstone in October 2010 which operated the business, taking and using the stock and valuable equipment owned by MTP Marble & Granite without paying anything for it. According to Maria’s evidence, the equipment included two saw cutters fit for cutting marble, sandstone chippers, a polisher, trucks, forklifts, and a Mercedes car. In cross-examination, Michael acknowledged that he received that plant and equipment.

141. The evidence of Maria and Adriana concerning the new company established by Michael is consistent with ASIC records, which show that the shares in MTP Marble & Granite and Finewest Holdings were transferred to Maria following the death of Michele but were never transferred to Michael, and that MTP Marble Granite Sandstone was incorporated on 14 October 2010 with Michael as its sole shareholder, director and company secretary.

142. Maria gave evidence estimating that the equipment and stock that Michael took from MTP Marble & Granite for the benefit of the new company that he established in October 2010 would have been worth between approximately $500,000 and $750,000. Michael disputed that.

143. In his affidavit sworn on 22 February 2023 and in cross-examination, Michael asserted that, when he took the business assets of MTP Marble & Granite, he also took on “the burden of its liabilities”. Michael adduced no evidence that he, or his new company, became subject to any obligation to MTP Marble & Granite, or to any creditor of that company, to discharge the liabilities of that company, or that Michael or his new company in fact did so.

144. Given that MTP Marble & Granite and Finewest Holdings were ultimately deregistered in September 2012 after being wound up under a creditors’ voluntary winding up, it is inherently improbable that Michael and his new company took on the liabilities of MTP Marble & Granite when they took that company’s assets, and it is probable that they did not pay those liabilities off in any event. I reject Michael’s uncorroborated assertion that he took on the burden of the liabilities of MTP Marble & Granite.

145. Maria gave evidence that, at the same time as taking the business for his new company, Michael continued to exert constant pressure on her to transfer to him the properties at Moore Street, Leichhardt and Parramatta Road, Annandale. In about October or November 2010, Maria agreed to transfer those properties to him on the basis that Michael’s sisters would inherit the Haberfield property when Maria died, and that Michael would sign a document saying that he would look after Maria and give her some form of income for the rest of her life. Maria considered that the rental income from the Annandale property was her sole source of income and she was concerned that she would have no way to live after transferring the properties to Michael without a binding promise of financial support. Maria was also concerned that Melanie might take a share of what she was giving to Michael, and she wanted Michael and Melanie to enter into an agreement pursuant to which Melanie would have no claim over those assets. In cross-examination, Maria described herself as having been by Michael into agreeing to transfer her interest in the properties to him and said that she did so without thinking properly about that decision. However, Maria does not now seek to impugn the transfers of her interests in the properties, which were registered without her authority as I explain below.

“Further to our telephone discussion on Friday 28 January 2011, we enclose copy of the Transfers with respect to the Leichhardt property and Annandale property which are to be held by you in escrow pending finalisation of the documents referred to herein.

As indicated on the phone, my client is content to transfer the properties subject to 2 agreements being entered into, the first is a Deed between Maria, and Michael and Mamro Pty Limited whereby Michael expressly provides for Maria for the rest of her life. The second document is a Part VIII AB Financial Agreement between Michael and Melanie.

As you would be well aware Michael and Melanie are living in a defacto relationship and Maria wishes to ensure that Melanie cannot claim or obtain the properties from Michael in the event of a breakdown of their relationship.

We submit these documents to you subject to our client’s further instructions and note that they are in draft form only and we are sending a copy to our client for her review and instructions.

We advise that the Transfers are not to be registered until such time as you have a written authority from us and a satisfactory Deed and Financial Agreement is signed by the parties.

Could you please provide a written undertaking that you will not register the transfers without the authority of our client and that you are holding them in escrow and if required by my client you will return the same. Once that undertaking is received, we will forward the original transfers to you.”

147. The draft deed enclosed with Ms De Pasquale’s letter provided for the transfer of the two properties to Mamro, as Michael’s nominee, in consideration for a promise by Michael to look after Maria financially and non-financially for the rest of her life, including by paying her specified sums on an ongoing monthly and weekly basis, paying all rates, expenses and outgoings for the Haberfield property, and paying for all of Maria’s legal costs and disbursements in relation to the proposed deed, the proposed transfer of the properties, and any disputes incidental thereto. Clause 4 of the draft deed contained an express acknowledgement by Michael that “nothing in this Deed gives him any right whether at law or in equity in the Residential Property and is only in consideration of Maria’s share in the Leichhardt Property and Annandale Property”. The recitals to the draft deed defined the property at 2 Crescent Street, Haberfield, as the “Residential Property”.

148. Ms De Pasquale’s letter also enclosed a draft of a proposed financial agreement between Michael and Melanie which provided, inter alia, that Melanie agreed that she is not entitled to any “Excluded Property”, which was defined as Maria’s interest in the Leichhardt and Annandale properties which she had agreed in principle to transfer to Michael.

149. There was some correspondence concerning the terms of the proposed deed between Mr Lakos on behalf of Michael and Ms De Pasquale on behalf of Maria in February 2011. However, Michael refused to sign the deed and Melanie refused to sign the financial agreement.

150. I accept as inherently probable Maria’s evidence that she only agreed to transfer her interest in the Annandale and Leichhardt properties to Michael on the basis that his sisters would inherit the Haberfield property, and subject to Michael signing the proposed deed. There is no evidence of any reason why Maria would otherwise have agreed to transfer the Annandale and Leichhardt properties to Michael, significantly advantaging him to the detriment of his sisters in a manner that Maria had not contemplated when she and Michele made their mutual wills in 2007, which she had no intention of changing in the immediate aftermath of Michele’s death in September 2009. [42] The terms of that will already favoured Michael, who stood to inherit one half of his parents’ assets on Maria’s death, compared to his sisters between whom the remaining 50 per cent was to be divided equally.

151. Maria gave evidence that Ms De Pasquale’s firm held the certificate of title for the property at 151-153 Parramatta Road, Annandale. I infer that the certificate of title for the property at 44-46 Moore Street, Leichhardt, was held by the mortgagee.

152. In June 2011, Michael registered transfers of Eugenio and Maria’s respective interests the property at 44-46 Moore Street, Leichhardt. Both transfers are described in the historical title search for the property as being without monetary consideration. Michael accepted in cross-examination that no money was paid to Eugenio for the transfer of his interest.

Michael purchases Belli Bar in 2011

160. In about June 2011, Michael took out a loan of $350,000 from NAB which he used to fund the purchase of a café in Leichhardt trading under the name of Belli Bar. The purchaser was Belliup Pty Limited, [47] which Michael caused to be registered on 18 March 2011. Michael was the sole director and shareholder of Belliup Pty Limited at all times until it was deregistered on 16 August 2015.

161. According to Michael’s evidence, his father had told him shortly before he passed away that he must buy a business for Daniela. Michael believed that his father asked him to do this because “as the only son in the family, there was an expectation that I would look after my sisters and provide for them long after my parents passed away”. Michael deposed that, after finding out that the Belli Bar business was for sale, he had a further conversation with Maria and Daniela about his proposal to purchase the business for Daniela, in which Daniela promised him that “I will pay you back in the future or you can take it out my inheritance”. Michael adhered to this evidence in cross-examination.

162. Daniela gave evidence denying making any such promise to Michael, and denying that he purchased the Belli Bar business for her. According to Daniela’s evidence, Michael bought the business and she worked in it between six and seven days a week. Daniela was able to deposit funds into the bank account of Belliup Pty Limited, but had no authority to withdraw funds from that account. Michael told Daniela to pay the bills and her own wages out of the cash register, but as the business rarely made enough money to pay its bills, Daniela rarely got paid. The business failed when the landlord of the café premises terminated the lease due to unpaid rent. Belliup Pty Limited is now deregistered. Daniela adhered to this evidence under cross-examination. Michael showed Daniela a document entitled “Belli Bar Loan Repayments Schedule” setting out a schedule of repayments of a loan amount of $350,000 over 15 years commencing on 30 June 2014, together with unsigned invoices issued by Michael to Daniela in July, August and September 2014 and in July and September 2015 for “Principle [sic] and Interest Repayments for Purchase of Belli Bar Business”. Daniela denied having seen those documents previously.

163. Maria gave evidence to the effect that Michael purchased the business through Belliup Pty Limited for himself, and asked Daniela to run it. Maria denied that Daniela had ever said to Michael in Maria’s presence that she would repay the $350,000 purchase price of the business to Michael, or that he could take it out of Daniela’s inheritance. According to Maria’s evidence, Daniela had always struggled financially and had never been in a position to pay $350,000.

164. I reject Michael’s evidence for the following reasons. First, it is inherently improbable that Michele asked Michael to buy a business for Daniela shortly before he died, in circumstances where Michele and Maria had made mutual wills just two years earlier providing for each of their four children. Second, Michael’s evidence that Daniela told him in 2010 or 2011 that she would repay him for the purchase price is inconsistent with his own evidence that he purchased the business for her to fulfill a family expectation that he was to his sisters. Third, it is plain from Michael’s own conduct that he had no interest in any of his sisters at the time of this alleged conversation in 2010 or 2011. On the contrary, he was intent on depriving his sisters of the inheritance that they were to receive under their parents’ mutual wills made in 2007 by telling Maria that he would the MTP Marble & Granite business and by pressuring her to transfer to him her interest in the Leichhardt and Annandale properties. At the time that he took out the loan to purchase the Belli Bar business, Michael had already established his own company to take the MTP Marble & Granite business and was in the process of transferring Maria’s interest in the Leichhardt property to Mamro without Maria’s authority. [48] It is highly improbable that, in the midst of this campaign to appropriate all of his parents’ assets for his own benefit, Michael purchased a business for Daniela in order to look after her. Fourth, Michael established a new company of which he was the sole director and shareholder to purchase the Belli Bar business. It is inherently improbable that he would have structured the transaction in this way if he had intended to purchase the business . It would have been open to Michael to guarantee a loan to Daniela for her to purchase the business in her own name. Fifth, Michael did not challenge Daniela’s evidence that she had no access to the bank account of Belliup Pty Limited which was operating the business. Daniela’s lack of access to and control over the funds of the operating entity is strong evidence that, in practice, the business was not run as if it was owned by Daniela. Daniela was not the owner in name, or in substance. Sixth, the purported repayment schedule and invoices shown to Daniela in cross-examination were not referred to in Michael’s affidavit and, on the face of them, were not created contemporaneously with the conversation that Michael claims to have had with Daniela in which he alleges that she promised to repay him. I note that the date of one of the unsigned invoices was after the date on which Belliup Pty Limited was deregistered. I accept Daniela’s evidence in cross-examination that she had never seen these invoices prior to giving evidence.

The Haberfield property is mortgaged to secure a loan for Michael’s benefit in 2013

166. Maria gave evidence to the effect that Michael told her in about April or May 2013 that he was purchasing a quarry and that he needed some help to make up the balance of the purchase price. Michael asked Maria if he could use her house as security, and told her that he needed her to see the solicitor. According to Maria’s evidence, she agreed to the mortgage after telling Michael that she did not want to lose her house, and that he would have to make all of the repayments and pay out the mortgage in full while Maria was still young because she could not deal with the stress of a mortgage over the Haberfield property as it was the only thing she had.

167. The quarry at 15 Laughtondale Gully Road, Maroota, [49] was purchased by Mamro on 22 May 2013. As I have already mentioned, Michael was, and remains, the sole director and shareholder of Mamro. The purchase was funded by a loan from Vivo International Pty Limited, secured by a registered mortgage granted by Mamro over the quarry property, a registered mortgage that Michael caused to be lodged over the Annandale property, and an unregistered mortgage granted by Maria over the Haberfield property which was the subject of a caveat lodged by Vivo International on or about 24 May 2013. To the best of Maria’s recollection, the unregistered mortgage over the Haberfield property secured a loan of $1,690,000. According to Maria’s evidence, she was not aware of the mortgage over the Annandale property. The question of how this mortgage came to be registered without Maria’s knowledge was not explored in the evidence.

168. Maria gave evidence to the effect that Michael had a further discussion with her in about April or May 2014 in which he told her that he was going to refinance the loans over the quarry to negotiate a lower interest rate, and that he would therefore need her to sign a new mortgage. Maria told Michael that she would do anything she could to help him, but that she did not want the debt hanging over her property forever because she found it stressful and she did not want to lose her house. In cross-examination, Michael agreed that Maria had said words to that effect at the time. According to Maria’s evidence, Michael responded by telling her that she would not lose her house, and that he would make sure that he took the mortgage off her property in ten years, or earlier if he sold the quarry or if either of them died. After hearing this, Maria told Michael: “Okay, I agree”.

169. In about June 2014, Maria executed a mortgage over the Haberfield property in favour of Westpac securing a loan of $1,690,000 which she understood was to replace the mortgage that she had previously granted to Vivo International. According to Maria’s evidence, she believed that this loan was the only money that Michael and Mamro owed in relation to the quarry. Maria was not aware that Michael caused Mamro to obtain a further loan from Australia and New Zealand Banking Group secured by mortgage registered over the quarry property at the same time as she signed the mortgage in favour of Westpac over the Haberfield property. Nor was Maria aware that Michael had also caused a mortgage to be registered over the Annandale property after earlier procuring the transfer Eugenio’s interest in that property to Mamro, and after registering a transfer of Maria’s interest in that property to Mamro in October 2014 (without Maria’s authority, as I have found above).

Maria requires Michael to move out of the Haberfield property in September 2016

179. Maria gave evidence that Michael told her in 2015 that he would arrange to have a power of attorney drawn up which would entitle him to access the apartments she owned in Rome during a forthcoming visit to Italy. Maria agreed, provided that the power of attorney did not authorise Michael to do anything more than look at the properties. Michael assured Maria that the power of attorney would only authorise him to inspect the properties. On 17 November 2015, Maria signed a “Procura Speciale”, which she described in her affidavit as an Italian power of attorney in favour of Michael. Maria’s signature was witnessed by a member of staff of the Consul General of Italy in Sydney. There is no evidence that Maria received any legal advice concerning the power of attorney before she signed it. Maria gave evidence that she did not realise at the time of signing the document that it conferred on Michael a power to sell the properties.

180. Maria gave evidence that Michael became verbally abusive towards her when she questioned him about his intentions behind his trip to Italy. In about September 2016, Maria received a call from Adriana, who had not spoken with her since she transferred her interest in the Annandale and Leichhardt properties to Mamro. Adriana gave evidence that she had become concerned about her mother after receiving a phone call from her neighbour, Mrs Shearer, suggestion that Adriana should check on Maria because she could her Michael shouting at her constantly.

181. After Adriana made contact with her, and at Paula’s suggestion, Maria sought advice from Ms De Pasquale in early September 2016 about the documents that she had signed at the Consulate. Maria ascertained from the Consulate that she had signed a General Power of Attorney, which Ms De Pasquale advised her included a power to sell the properties.

182. Maria then caused De Pasquale Lawyers to prepare and serve on Michael a notice of revocation of the power of attorney. De Pasquale Lawyers wrote to Michael on 7 September 2016 in the following terms:

“We are the solicitors for your mother Maria Di Giannantonio.

We confirm that you have been served with a revocation of the Procura Speciale that was signed by her on 17 November 2015. …

Accordingly, you are not to use the power of attorney that she had provided to you under any circumstances. You not authorised to use the power of attorney in any way nor are you able to act on her behalf in relation to the Italian Properties. Furthermore, you are not authorised to access those properties nor are you authorised to sell those properties. We put you on notice that you are not to have any dealings in relation to those properties or sign any documents on her behalf.

We note with some concern that you had indicated to your mother that you required a power of attorney simply to access the apartments in Rome. As you can see from the copy of power of attorney, the powers contained therein are far more expansive than simply accessing the properties. In particular, there is a power of sale. Your mother does not want the Italian Properties sold under any circumstances.

We also put you on notice that we are taking steps to inform the Italian lawyers engaged by you that you no longer have any authority to deal with the Italian Properties.”

183. Michael and Melanie were still living in the Haberfield property together with Maria at this time. According to Maria’s evidence in chief, Michael became very aggressive and abusive towards her after receiving this correspondence from De Pasquale Lawyers and Maria felt threatened and intimidated by him in her own home.

184. Maria instructed De Pasquale Lawyers to write a further letter to Michael, which was served on him personally by a process server, on 14 September 2016. The letter referred to Maria’s instructions that Michael had become increasingly abusive and intimidating towards her, and that she felt threated by his actions, and required Michael to vacate the Haberfield property within 30 days. According to Maria’s evidence, Michael did vacate the Haberfield property a short time after being served with that letter.

185. In his affidavit sworn on 22 February 2023, Michael denied that he was ever abusive or aggressive towards Maria. Michael attributes Maria’s request for him to move out of the Haberfield property in September 2016 to tension between Maria and Melanie. Michael deposed that he was in “complete shock” and “absolutely beside myself” when he read the 14 September 2016 letter from De Pasquale Lawyers, but that he did not speak to his mother about it because it was clear to him that Maria did not want him at the Haberfield property despite everything that he considered he had done for her and for the property.

186. Michael’s affidavit evidence to which I have referred above did not respond to the substance of Maria’s evidence that he had assured her that the power of attorney would only authorise him to inspect the properties, yet he had caused her to execute a document that included a power of sale.

187. When that allegation was put to him in cross-examination, Michael initially said that he did not recall what the power of attorney authorised him to do, or what he had told Maria about the power of attorney, but that their intention at the time had been to renovate the properties and not to sell them. Michael was then shown the letter from De Pasquale Lawyers dated 7 September 2016, and the following exchange took place between Michael and the cross-examiner:

“Q. … you agree, don’t you, that in substance that is what you told your mother, that is that you only required a power of attorney simply to access the apartments in Rome to assess their condition and to consider renovations?

A. Either renovations or sell, yes.

Q. You never told your mum that you contemplated selling the Rome apartments using the power of attorney, did you?

A. I – I don’t think – I did because if I did something I did it under mum’s instructions or our agreement. I would never do something on my own but, anyway, continue.

Q. You knew very well that your mum had not given instructions authorising the sale of the apartments in Rome; correct?

A. Say that again sir?

Q. Your mum never gave any instructions authorising the sale of the apartments in Rome?

A. I can’t recall, but continue.

Q. Your mum never gave instructions authorising you to have a power of attorney which would enable you to sell the apartments in Rome; correct?

A. I don’t recall but continue.”

188. I formed the view at the time that Michael’s three inconsistent answers given in response to a short series of questions – (1) we didn’t intend to sell; (2) we were intending to either renovate or sell; and (3) I can’t recall what we intended, but if it was to sell this would have been on Maria’s instructions (and I can’t recall whether she instructed me to sell) – were all instances of Michael saying whatever he thought might best assist his cause in these proceedings in the heat of the moment under cross-examination. His purported instructions to the cross-examiner to “continue” seemed to me to be a device to mask the discomfort that was obvious from his demeanour about the blatant inconsistencies that were emerging from his answers as he dissembled in the witness box.

189. Under cross-examination, Michael maintained his denial that he had been abusive or aggressive towards Maria prior to receiving the 7 September 2016 letter from De Pasquale Lawyers. Michael went so far as to accuse Maria of lying to De Pasquale Lawyers when she gave instruction to write that letter, and of lying about this issue in her affidavit. As I have already mentioned, Michael did not challenge Maria about the truth of the contents of the letter at the time he received it. Nor did he challenge Maria about those matters during his lengthy cross-examination of her at the hearing.

190. I accept Maria’s evidence about these matters, which is corroborated by Adriana’s evidence concerning the telephone call that she received from Mrs Shearer, and by the terms of Maria’s contemporaneous instructions to her solicitors as reflected in the 7 September 2016 letter. The evidence does not support a finding that Maria lied to her solicitors in providing the instructions reflected in that letter, and this serious allegation was not put to Maria in cross-examination. I reject Michael’s evidence about these matters for all of the reasons explained at [186]-[188] above and for the further reasons at [38] above.

191. For those reasons, I find that Maria required Michael and Melanie to move out of the Haberfield property in September 2016 after the relationship between Maria and Michael became strained as a result of a dispute arising from the scope of the authority conferred on Michael under the power of attorney that Maria had signed at the Italian Consulate and, in the context of that dispute, Michael became verbally abusive and aggressive towards Maria, causing her to feel intimidated and threatened in her own home.

Michael asks to move back to the Haberfield property in 2018 after his separation from Melanie

192. Michael and Melanie moved out of the Haberfield property in September 2016 into rented premises at Hunters Hill. Michael gave evidence that, after living at the Hunters Hill property for a while, he decided to sell the Annandale property and use the sale proceeds to buy the Hunters Hill property. As I have already mentioned, the Annandale property was sold for $3,150,000 in about October 2017. However, Michael did not proceed with his plan to purchase the Hunters Hill property because he and Melanie separated in about May 2018.

193. The circumstances in which Michael and Melanie separated are relevant to Michael’s claim in these proceedings to set aside the 2018 deed on the grounds of unconscionability on the basis that he was allegedly suffering from a special disadvantage throughout the negotiations for the 2018 deed and at the time the 2018 deed was executed.

194. In his affidavit sworn on 22 February 2023, Michael deposed that he discovered in May 2018 that Melanie was having an affair with one of his employees. Melanie moved out of the Hunters Hill property shortly after Michael made this discovery. According to Michael’s evidence, he was heartbroken, and betrayed and blindsided by Melanie’s conduct after they had been together for 16 years and had a daughter together. Michael deposed that:

“I could not think straight or focus on anything and felt like my world was falling apart and that there was nothing I could do about it. More than anything, it killed me to know that my little girl would be growing up in a split family. I began drinking heavily – sometimes a whole bottle of scotch – just to get to sleep. My ability to function at home and work was severely impaired. I recall that on one occasion, I drove to Parramatta instead of Leichhardt for work and had no idea how I had even got there or why I had driven there. … I felt like I was lost, had no direction, and was struggling with just getting by each day. I regularly thought about committing suicide. My condition became even worse when Melanie made false accusations against me to the police the day after I found out that Melanie was cheating on me. I recall that, about a week after I discovered Melanie cheating on me, the police arrived at the Marble Factory and told me that I needed to attend Glebe police station.

I confided in my mum and sisters about these problems on many occasions between May and October 2018. I did this because Daniela had already told my entire family about Melanie cheating on me.”

195. According to Michael’s affidavit, Maria and Daniela came to visit him at the Hunters Hill property shortly after Melanie moved out in May 2018. Michael deposed that he told Maria that he couldn’t believe what had happened, that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, and that he was struggling mentally. Michael deposed that he asked Maria: “Will you let me live with you? I don’t think I can look after myself anymore.” Michael deposed that Maria replied: “Son, of course. You should move in with me at the Haberfield Property so that I can look after you, you can trust me. I will cook for you and clean for you and look after you. I want you to move back with me, but you need to sign a document for me before you move in.” Michael deposed that he responded by telling Maria: “Of course mum, I will do anything you want as long as I can move back in with you.”

196. Maria gave a very different account of her conversation with Michael in May 2018. According to Maria, Michael asked her whether he could return to live at the Haberfield property because he believed that the Family Court would not permit him to have contact with his daughter, Briella, unless he had a secure and safe place to live. Maria told Michael that she no longer trusted him, she did not want a repeat of previous problems, and she wanted him to pay off the loan that had been taken out to purchase the quarry which was still secured by mortgage over the Haberfield property. Maria therefore told Michael that she would need to consult her solicitor, and that she would seek her advice about how to ensure that “things are done properly this time”.

197. Michael put to Maria in cross-examination that he told her during their conversation in May 2018 that he was drinking very heavily, and that he was very upset. Maria denied this.

198. Under cross-examination by Michael, Daniela gave evidence consistent with Maria’s evidence about the conversation:

“Q. Do you know what was said?

A. That you wanted to come home, and the only reason that you could come home, was because you needed a place for your – to show a residence that your daughter had somewhere to live when you could see your daughter.

Q. And what else did we discuss, Daniela?

A. That mum wanted you to sign, in order for you to come – for you to come back, you had to sign something, to say that you would take the loan off the house.

Q. That’s correct, Daniela.

A. And she didn’t want to go through what happened last time, so she wanted you to sign to say that you would agree to take the loan off the house, to free her home.

Q. Correct. Was anything else discussed, Daniela?

A. Not that I can remember, or recall.

Q. So we spoke about signing a document to remove the loan off the house. Correct?

A. Yeah, so she could get her title deeds back.

Q. Okay. Anything else?

A. I don’t remember.”

199. Michael did not put to Daniela that he had told her and Maria during this conversation that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, or that he was struggling mentally.

200. Michael gave evidence that he moved back to the Haberfield property, together with his daughter Briella, shortly after his conversation with Maria in May 2018 to which I have referred above. Each of Maria and Michael gave inconsistent evidence about whether Michael moved back to the Haberfield property before or after Maria gave him a first draft of the document that she had foreshadowed in their May 2018 conversation. Nothing turns on this. It was anticipated before Michael moved back to the Haberfield property that a document would be signed. He returned to live at the Haberfield property before signing any document and, as explained below, the negotiation of the terms of the document continued well after his return. Michael had been living at the Haberfield property for some months before he signed the deed on about 23 August 2018, as referred to below.

201. Michael deposed that, at the time he moved back to the Haberfield property:

“… I was in a deep hole mentally – I had nowhere to live (as my lease at Hunters Hill was expiring soon), the Quarry did not have DA approval (which meant that I was unable to extract any stones below ground), I was dealing with the anxiety, embarrassment and betrayal due to Melanie, I had to deal with the divorce, and I had to think about my daughter Briella.”

202. However, Michael also deposed that, upon moving back into the Haberfield property, his relationship with Maria went back to the loving relationship they had previously enjoyed. They had dinner together every evening, and would engage in conversation about a range of topics.

203. Maria gave evidence to the same effect, and deposed that she did not observe Michael to be depressed, or to be having difficulty functioning day to day. They shared a kitchen together in the Haberfield property, and she did not see Michael drinking. He did not drink before, during or after their dinner together each evening. She did not observe him to appear affected by alcohol at any time. According to Maria’s evidence, Michael “carried on life like he had done at all times of his life whilst he was living with me”. Maria also gave evidence that Michael even had female friends visit him and stay overnight at the Haberfield property on a couple of occasions.

204. Daniela gave evidence that she never saw or heard of Michael drinking alcohol or being affected by alcohol in the period after he and Melanie separated. Nor did Daniela observe Michael to be struggling. Daniela’s perception was that Michael was merely embarrassed that Melanie had an affair with one of Michael’s employees. According to Daniela’s evidence, Michael had a new girlfriend shortly after moving back into the Haberfield property, he went to work every day, and appeared to be functioning at home.

205. Adriana also gave evidence that, after he moved back into the Haberfield property, Michael did not appear to be drinking or affected by alcohol at any time in Adriana’s presence. Adriana’s perception, based on her interactions with Michael at the time, was that he did not really care that his relationship with Melanie had come to an end. Adriana did not observe Michael to be struggling mentally. Adriana also acknowledged that she and Michael had not spoken for some years before he moved back to the Haberfield property. Adriana found it uncomfortable to be around Michael at that time because she knew that he had taken the marble business and the Annandale and Leichhardt properties from Maria for nothing. Adriana advised Maria to be careful not to end up in “the same situation you were in last time”, by which I infer that Adriana was referring to Michael taking what he wanted without signing the deed that Maria had wanted him to sign in 2011. [52] According to Adriana’s evidence, Maria told her: “It won’t happen again. I have already gone to see Teresa and she is preparing a contract.” Adriana understood that Maria was referring to Ms De Pasquale.

206. In cross-examination, Michael maintained that he was drinking heavily during the period after his separation with Melanie, but said that he hid this from his mother except for a little bit of wine that they would drink together at dinner. He maintained that he was depressed and contemplating suicide but said that he hid his emotions from people, including from Maria. He was embarrassed that Melanie had cheated on him, and he did not want other people, including Maria, to think that he was struggling during that period.

The negotiation of the 2018 deed

207. After consulting Ms De Pasquale, Maria instructed her to prepare a draft deed to protect her interests in connection with Michael moving back into the Haberfield property. At some time between April and early June 2018, Maria received a draft deed from Ms De Pasquale which she then provided to Michael so that he could obtain his own legal advice.

208. In his affidavit sworn on 22 February 2023, Michael deposed that, after he moved back into the Haberfield property, he had several conversations with Maria in which he told her that he had potential purchasers for the quarry. According to Michael’s evidence, Maria told him that he should sell the quarry if he could get more than he paid for it, and said that she was not worried about him signing the deed and that he should “just focus on getting a good price for the quarry”. However, by July 2018, Maria began asking him when he was going to sign the deed.

209. Maria gave evidence confirming that Michael frequently told her during this period that he had a buyer for the quarry, and that he was in the process of selling it. However, Maria denied that she ever reached an understanding with Michael that he was no longer required to sign the deed so that he could focus on selling the quarry for a good price. On the contrary, Maria constantly asked Michael to see his lawyer so that they could both sign the deed. Maria recalled saying to Michael on at least one occasion that she needed him to sign the deed “because I made the mistake with you once and I won’t make it again”.

210. In July 2018, Michael engaged Ms Susan Alexander, solicitor, of MDW Law, to act on behalf of himself and Mamro in relation to the deed. Ms Alexander represented Michael and Mamro in negotiating the terms of the deed over the ensuing months, during which time five iterations of the draft deed were prepared.

211. Ms Alexander prepared a new document entitled “Deed of Relinquishment of Rights and Irrevocable Obligation to Discharge Mortgage”. It is convenient to refer to this document as the second draft of the deed, even though it is plain from the terms of the document itself that it was prepared from scratch rather than by amending the first draft prepared by Ms De Pasquale which Maria had earlier provided to Michael.

212. The recitals to the second draft recorded that Maria had provided the Haberfield property as security for loans to Mamro in order to assist Michael in a business venture, that the amount of those loans secured against the Haberfield property was approximately $1,690,000, and that the quarry owned by Mamro was in the process of being sold. Clauses 1 and 2 of the second draft provided for Michael to discharge the mortgages immediately upon receipt of the proceeds of the sale of the quarry, upon which Maria would grant to Michael a “permanent tenancy” in the Haberfield property until her death.

“Please see attached a draft version of the Deed for your mother to take to her lawyers tomorrow, as per your instructions.

…

Your mother’s lawyers will need to deal with any provision in her will regarding instructions to her executor(s) to grant you an option/first right of refusal to purchase the family home if it is to be sold following her death.

Call me with any questions.”

215. Michael forwarded Ms Alexander’s email, together with the attached second draft of the deed, directly to Ms De Pasquale the following day on 31 July 2018. Ms Alexander independently sent the second draft directly to Ms De Pasquale by email on 31 July 2018.

216. Michael’s affidavit made no mention of the second draft of the deed which he provided to Maria and her solicitor on 31 July 2018. When asked about the second draft in cross-examination, Michael denied that he had given instructions to Ms Alexander to prepare it, describing that proposition as “rubbish” and “crazy”. Michael then progressed to denying that his solicitor had prepared the second draft at all, asserting that she had merely copied the terms of a deed prepared by Ms De Pasquale. As I have already mentioned, it is clear from the terms of the second draft that it has been prepared from scratch. It is not a copy or even an amended version of the first draft. I formed the impression at this point of the cross-examination that Michael was once again willing to say anything that he thought, in the heat of the moment, might assist his defence and cross-claim in these proceedings.

217. Upon being reminded by the cross-examiner that he had sent the second draft by email to Maria and to her solicitor on 31 July 2018, Michael denied that he had read the second draft before doing so, and said that he had “just wanted the solicitors to talk between themselves”. I interpolate to note that the solicitors would have had nothing to talk about if Ms Alexander had merely copied the terms of the earlier draft of the deed prepared by Ms De Pasquale. When the cross-examiner put to Michael that he had wanted the solicitors to talk because he wanted them to agree on terms that both he and Maria would be prepared to sign, Michael backtracked and suggested that perhaps it was his secretary who had sent the emails from his account to Maria and Ms Alexander attaching the second draft of the deed on 31 July 2018. I formed the impression at the time that Michael was grasping at any hypothetical possibility he could think of that he believed might get him out of what was becoming an uncomfortable position during this part of the cross-examination. Michael denied that he wanted the solicitors to talk with a view to negotiating the terms of a deed that would be acceptable to him and to Maria, but did not identify any other reason why he wanted the solicitors to talk. Michael denied that he agreed with the substance of the second draft of the deed, and repeatedly said that he “wasn’t all there” at the time. Michael also claimed that Maria had told him that the deed would never be used against him in a court of law. This was a new claim that Michael had not mentioned in his affidavit and introduced for the first time during this difficult stage of his cross-examination.

218. Michael did not adduce any medical or other evidence in support of his assertion that he . Michael frequently repeated that assertion during cross-examination about the period during July and August 2018 during which the terms of the deed were negotiated and the deed was signed by Michael on 23 August 2018.

“Q. You were there enough to know that having a right of first refusal to purchase the family home was something that was important to you; correct?

A. Well that was very important to me—

Q. Yes and because—

A. --because I had spent so many hours on the house and so many years. So that was - that was one thing that I've always wanted in my life was to - to make enough money to - to - for the quarry so I could purchase the family home.

Q. And that was because you knew, didn’t you, that if you wanted to obtain the family home you would need to purchase it?

A. Not have to purchase it.

Q. Correct?

A. Minus my money that I spent on the home which was the agreement between mum and I.

Q. Can I suggest to you that in July 2018 you knew very well that you did not have any legal right to your mother's home?

A. Sorry, say that again?

Q. In July 2018 you knew very well that you did not have any legal right to your mother's home?

A. I didn’t have any legal right but I did have the legal right to the money that I spent upstairs.

Q. And you knew that if you wished to obtain that home you would need to pay for it by purchasing it after your mother died; correct?

A. Sorry, say that again sir.

Q. You knew that if you wished to obtain the family home—

A. Yes.

Q. --you would need to purchase it after Marie died?

A. Well purchase it, I believe she was going to - she was going to gift it to me as well.

Q. Well then why was it very important for you to have a right of first refusal to purchase the family home?

A. Just - just in case.”

222. On 3 August 2018, Ms De Pasquale sent an email to Ms Alexander attaching a third draft of the deed after perusing Ms Alexander’s draft and taking instructions from Maria.

223. The third draft of the deed attached to Ms De Pasquale’s email was an amended version of the first draft that she had prepared in April 2018. Ms De Pasquale noted in her email that Maria required a mechanism for the mortgage to be discharged even if the quarry was not sold. The third draft of the deed recorded Mamro’s agreement that Maria had a caveatable interest in the quarry property, prohibited Mamro from further encumbering the property, and obliged Michael and Mamro to take reasonable steps to sell the quarry immediately and to discharge the mortgage over the Haberfield property on completion of the sale. The third draft also provided that, in the event that the quarry had not sold within 24 months after the date of the deed, Michael and Mamro were obliged to do all things required to discharge the mortgage by 2 October 2020, failing which Michael would be required to resign as a director and Maria would be entitled to appoint any person as the sole director of Mamro to facilitate the sale of the quarry, or alternatively Michael and Mamro would execute powers of attorney in favour of Maria or her nominee. These provisions were substantially the same as the provisions in the first draft of the deed, save that the period of time after which Maria would be entitled to take steps to bring about the sale of the quarry if the Haberfield mortgage had not been discharged was extended from 12 months after the date of the deed to 24 months after the date of the deed. That extension favoured Michael and Mamro.

224. Ms De Pasquale also noted in her email to Ms Alexander that she was instructed that Michael would be entitled to reside at the Haberfield property immediately, and not only on discharge of the mortgage as had been stipulated in Ms Alexander’s second draft of the deed. The third draft of the deed inserted a right for Michael to reside at the Haberfield property at Maria’s discretion, in such room or rooms of the property as Maria designates, and subject to a requirement for Michael to vacate the property within 30 days after Maria giving notice to vacate, after the death of Maria, or after the sale of the property. It was expressly provided that this right was a contractual licence only, which was personal to Michael and not permitted to be assigned or sub-licensed. Plainly, this was a lesser right than the right of permanent tenancy which Michael had sought in the second draft of the deed.

225. Ms De Pasquale’s email to Ms Alexander also contained the following observation:

“Release – Succession Act – there is a long history between our clients regarding the ultimate inheritance of our [sic] client and assertions that have been made in the past that your client is entitled to be reimbursed for certain renovation works that he had undertaken at the Haberfield Property. These matters all need to be dealt with in this Deed.”

226. The third draft of the deed included:

227. Recital G acknowledging that Michael had completed renovation works for a self-contained apartment at the Haberfield property following Michele’s death pursuant to an agreement with Maria that he could not recover the cost of the works but that he could live in the self-contained apartment at the property rent-free for at least five years;

228. Clause 7(a) pursuant to which Michael released Maria from any claim or demand relating to those renovation works or any other claim that he may have over the Haberfield property; and

229. Clause 7(b) in which Michael expressly agreed that he has no equitable interest in the Haberfield property as a result of the renovation works.

230. Provisions to the same effect had been included in the first draft of the deed.

231. The third draft of the deed also included the following clause 8, the terms of which were almost identical to clause 8 of the first draft of the deed:

“8 Further Release by Michael – Maria’s Estate

(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 his 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) 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.”

229. Clause 9 contained general provisions, including an entire agreement clause in sub-clause (b) and the following sub-clause (c):

“The Parties acknowledge that this Deed has been prepared by Maria’s Lawyers, being De Pasquale Lawyers and Michael acknowledges and agrees that he has obtained independent legal advice or has had the opportunity to obtain independent legal advice in relation to this Deed and has waived his right to be independently advised. He expressly acknowledges that he has read and understood the terms and effect of this Deed and has signed it freely and voluntarily.”

230. Those provisions had also been included in clause 9 of the first draft of the deed.

231. Ms De Pasquale’s email sent to Ms Alexander on 3 August 2018 concluded with a request on behalf of Maria that the matter be resolved, and the deed executed, as soon as possible.

232. Ms Alexander replied to Ms De Pasquale by two emails sent later that day advising that she had arranged a conference with Michael on the following business day – 6 August 2018 – for the purpose of taking his instructions.

233. On the afternoon of 7 August 2018, Ms Alexander sent a further email to Ms De Pasquale attaching a further amended version of the draft deed – being the fourth draft – “as per Michael’s instructions”. Ms Alexander’s email also stated:

“Michael also instructed me to mention to you that that [sic] Maria needs Daniella [sic – Daniela] to be given Power of Attorney. He understands that it is matter for you and Maria to deal with.”

234. Michael’s proposed substantive amendments, which were marked up in the fourth draft of the deed, were:

235. the deletion of the right for Maria to require Michael to resign as a director of Mamro or to require Michael and Mamro to execute powers of attorney in her favour to facilitate the sale of the quarry in the event that the Haberfield mortgage was not discharged by 2 October 2020. However, Michael did not seek any amendment to 2 October 2020 as the date by which he and Mamro were obliged to discharge the Haberfield mortgage, irrespective of whether the quarry had been sold;

236. an extension of the period after Maria’s death within which Michael and Mamro were required to discharge the Haberfield mortgage, if it had not already been discharged, from 60 days to 90 days;

237. the deletion of the right for Maria’s executors to lodge a caveat against any property owned by Michael or Mamro in the event that the Haberfield mortgage is not discharged prior to Maria’s death, limiting that right to the lodgement of a caveat over the quarry property;

238. the deletion of Michael’s agreement to sign any power of attorney required by Maria’s executors to give effect to any security they required in those circumstances;

239. changes to the terms of the right of residence by deleting the words that described the right as being at Maria’s sole discretion, specifying the apartment in the middle level of the Haberfield property as the part of the property in which Michael had the right to reside, deleting Maria’s right to give 30 days’ notice requiring Michael to vacate the Haberfield property, and increasing to 90 days the period of notice required to be given to Michael to vacate the property after the death of Maria or the sale of the property; and

240. the insertion of a new clause 8(e) containing an acknowledgement and agreement by Maria that Michael wishes to continue residing in the Haberfield property after her death and wishes to purchase the property from her estate, and containing an obligation for Maria to instruct her solicitors within 7 days after executing the deed to amend her will to give Michael an option to purchase the Haberfield property by way of right of first refusal and a right to continue residing in the Haberfield property beyond 90 days after Maria’s death provided that Michael has made a bona fide offer to purchase the property from Maria’s estate at a fair market price, and has done all things to facilitate the exchange of contracts for sale with a settlement date within 90 days of the date of exchange.

241. Michael did not propose any amendment to clause 7 of the third draft deed whereby he released and discharged Maria from any claim or demand relating to the renovation works at the Haberfield property or any other claim that he may have over the Haberfield property, and expressly agreed that he has no equitable interest in the Haberfield property.

“In relation to the appointment of Maria as a director of Mamro, the purpose of this clause is so that the Quarry is sold if your client defaults. Our client will not want to run off to get an order for specific performance. We note that your client may have had concerns regarding the drafting of Maria or a nominee, we have limited the appointment of the director to Maria or the writer which will hopefully resolve the issue.

Our client wants to have security that the Haberfield Mortgage will be repaid in accordance with the terms of the Deed and will want to force a sale if he is in default.”

245. The fifth draft of the deed also reinstated the right in clause 6(b)(i) for Maria to give notice to Michael to vacate the Haberfield property, but stipulated a notice period of 60 days (as opposed to the 30-day period proposed in Maria’s third draft of the deed or the 90-day period proposed in Michael’s fourth draft). This change was accompanied by the following drafting note:

“NOTE: whilst we are hopeful that there will be no reason for our client to exercise her right in clause (b)(i), there have been issues in the past where your client was requested to leave the property and we don’t want to have a repeat situation.”

246. Clause 7 of the fifth draft was in the same terms as it had been in the third draft of the deed, Michael not having sought any change to that clause in the fourth draft. It will be recalled that clause 7 provided that Michael released and discharged Maria from any claim or demand relating to the renovation works at the Haberfield property or any other claim that he may have over the Haberfield property, and expressly agreed that he has no equitable interest in the Haberfield property.

247. Nor did the fifth draft propose any amendment to the terms of that part of clause 8 set out at [228] above, by which Michael acknowledged the receipt of his early inheritance, acknowledged that Maria intended that her three daughters should inherit the Haberfield property to the exclusion of Michael, and released Maria’s estate from any claim for provision under the Succession Act. It will be recalled that those provisions of clause 8 had been introduced by Maria in the third draft of the deed, and Michael had raised no objection to them in his fourth draft.

248. The final substantive amendment in the fifth draft was the deletion of the right of first refusal that Michael had inserted as clause 8(e) in the fourth draft of the deed. Clause 8(e) was replaced with a new clause 9 which provided that, within 60 days of the date of the deed, Maria 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. Ms De Pasquale’s email to Ms Alexander stated:

“In relation to the right of first refusal, there is no need to incorporate terms into this Deed, so we have limited it to Maria amending her will only. I will deal with the right of first refusal in Maria’s Will on terms reasonable to all parties regarding price and process. I will keep in mind the matters that you have raised in your proposed clause in drafting.”

249. Ms Alexander replied to Ms De Pasquale’s 14 August 2018 email later that same day stating that she would seek instructions from Michael and revert as soon as possible.

250. On 17 August 2018, Ms Alexander sent a further email to Ms De Pasquale as a matter of courtesy advising that Michael had not yet been in contact with her and enquiring whether Ms De Pasquale was aware of any developments in relation to the deed.

251. On 21 August 2018, Ms Alexander sent a further email to Ms De Pasquale advising that Michael had been in contact with her the previous day about a separate matter “but wanted to delay the discussion about the deed until he was less busy”. This email is contemporaneous evidence that Michael felt perfectly at liberty to delay progressing the negotiation of the 2018 deed until a time that was convenient to him, contrary to his evidence claiming that he felt pressured to finalise and sign the deed.

252. On 23 August 2018, Michael handed Maria a copy of the fifth draft of the deed which he had executed as a deed in his personal capacity and as the sole director of Mamro after he or his solicitor made some handwritten amendments. Michael’s signature in his personal capacity was witnessed by Mr Luke Spartalis, a solicitor in Ms Alexander’s firm. Michael and Mr Spartalis had initialled each page of the deed. Save for Michael’s handwritten amendments, the document was in the same form as Ms De Pasquale had emailed to Ms Alexander on 14 August 2018, including electronically marked up amendments made by Ms De Pasquale and drafting notes inserted by Ms De Pasquale for Ms Alexander’s consideration. Michael’s handwritten amendments deleted his obligation to resign and Maria’s right to be appointed as a director of Mamro to facilitate the sale of the quarry if the Haberfield mortgage was not discharged by 2 October 2020, reinstated to 90 days the period of notice that Maria was required to give him to vacate the Haberfield premises, and reinstated the right of first refusal provisions that had been inserted by the fourth draft of the deed. Again, Michael raised no objection to 2 October 2020 as the date by which he and Mamro were required to discharge the Haberfield mortgage, even if the quarry had not been sold. Finally, Michael wrote on the cover page of the deed: “Daniela Guarrera to be made joint and several Power of Attorney for Maria”.

253. In cross-examination, Michael accepted that he signed the fifth draft of the deed after making those amendments. He signed it in front of Mr Spartalis on behalf of himself and as sole director of Mamro after Mr Spartalis read the terms of the document to him. In his affidavit, Michael deposed that he felt under intense pressure to sign the deed and that he was “still not in a right mental place” and was “too scared to consider what would happen if I didn’t sign” and “didn’t want to be kicked out of the Haberfield property”. Under cross-examination Michael maintained that he felt pressure to sign the deed, but acknowledged that he didn’t tell his solicitor that he felt pressured. Michael also said that Mr Spartalis had told him not to sign the deed, but that he had signed it anyway because . Upon being reminded (again) that he had moved back into the Haberfield property some months earlier, Michael reverted to his assertion that he at the time. I repeat my observations at [217]-[221] above. As Michael reluctantly accepted in cross-examination, he was sufficiently to formulate the amendments that he made to the fifth draft of the deed before signing it. Those amendments were favourable to him, and to Mamro. Michael then resorted to the circular reasoning that the very fact that he signed the deed, the terms of which he now contends are unfair, demonstrates that he at the time.

“Our client will not accept delays due to your client being busy. We are all busy and the matter needs to be resolved. Our client has permitted your client to reside at the property in good faith and has had a deed substantially in the form that we originally forwarded to you for more than 3 months.

We look forward to hearing from you.”

256. Ms Alexander replied to Ms De Pasquale later that afternoon:

“Thank you for your anticipated email …

We did advise our client that signing a hand-amended deed was irregular and would not be accepted. Notwithstanding our advice, our client signed the deed.

We advised our client that we could not instruct you to draft a power of attorney in favour of one of his sisters, and that only Maria could instruct you to that effect. Nevertheless, he instructed us to write notes on the deed.

In relation to the amendments made by you, we advised our client that if he did not agree to them, there was a process to follow which included returning a further amended document to you.

Our client was anxious to sign a document last evening in order to deliver it to his mother without any further delay.

We will contact our client for his instructions.”

257. On 24 September 2018, Ms De Pasquale sent a follow up email to Ms Alexander enquiring whether Michael intended to provide a response to the matters raised in her email of 23 August 2018. Ms Alexander replied that same day, stating that her firm no longer held instructions in relation to the deed and had not had any contact with Michael for several weeks, and that she could therefore add nothing further to her email to Ms De Pasquale of 23 August 2018.

258. After consulting Ms De Pasquale, Maria decided to accept the terms of the deed as signed by Michael, notwithstanding the objections that Ms De Pasquale had initially raised concerning the form of the deed and the process by which Michael had treated his most recent proposed amendments as a fait accompli by simply writing them in and signing the deed in that form without further negotiation. On 12 October 2018, Maria executed the same document that Michael and Mamro had executed on about 23 August 2018. Maria’s signature was witnessed by Ms De Pasquale.

259. It is convenient to summarise the terms of the whole of the deed as executed, including Michael’s handwritten amendments.

The terms of the 2018 deed as executed

260. The recitals to the signed deed recorded that:

“A Maria is Michael’s mother and she resides at 2 Crescent Street, Haberfield (“the Haberfield Property”).

B Michael is the sole director, secretary and shareholder of Mamro Pty Ltd.

C In about July 2014 Mamro purchased the property known as 15 Laughtondale Gully Road, Maroota … (“the Quarry”).

D In order to assist with the purchase of the Quarry, Michael requested that Maria mortgage the Haberfield Property and on or about 30 May 2014, Maria mortgaged the Haberfield Property to RAMS Financial Group Pty Ltd (RAMS) and Westpac Banking Corporation took a registered mortgage XXXXXXXX in the sum of $1,690,000.00 (“Haberfield Mortgage”).

E The current balances of the Haberfield mortgage are as set out below:

Mortgage No. XXXXXXX in the sum of $1,600,000 (as at 1 July 2018); and

Mortgage No. XXXXXXX in the sum of $89,762.24 (as at 31 March 2018).

F Until early to mid-2016, Michael resided at the Haberfield Property in a separately contained apartment.

G Prior to the death of Maria’s husband, Maria’s husband commenced construction of the separately contained apartment at the Haberfield Property and on his death Michael completed the renovations on the agreement between Maria and Michael that he would not be entitled to recover any monies (if any) paid by him for that renovation and that he could live in the self-contained apartment for a period of not less than five years without paying rent.

H The parties have agreed to enter into this Deed to set out the obligations of each party and to record the agreement between them.”

261. Clause 2 of the signed deed provided:

“Michael and Mamro jointly and severally acknowledge the following:

(a) At the request of Michael, Maria mortgaged the Haberfield Property to assist Mamro purchase the Quarry.

(b) Maria agreed to sign the Haberfield Mortgage over the Haberfield Property and advance all funds to Michael and/or Mamro on the basis that Mamro and/or Michael would pay all interest, costs and principal due and owing on the Haberfield Mortgage when it fell due and payable and that the Haberfield Mortgage would be discharged by Michael and/or Mamro on the earlier of the following events:

(i) 10 years from the date of settlement of the purchase of the Quarry, being 30 July 2024;

(ii) The sale of the Quarry;

(iii) Within 90 days of the date of death of Maria; or

(iv) Within 90 days of the date of death of Michael.

(c) Michael received all the funds advanced pursuant to the Haberfield Mortgage and utilised those funds for the purchase of the Quarry.”

262. Clause 3 of the signed deed required Michael and Mamro to take all reasonable steps to immediately sell the Quarry, to do all things necessary to complete the sale in accordance with the contract (which they were obliged to ensure provided for completion within a reasonable time after the date of the contract), and to discharge the Haberfield Mortgage in full on completion of the sale. Clause 3 also contained an agreement by Mamro that Maria has a caveatable interest over the Quarry and is entitled to lodge a caveat to secure that interest.

263. Clause 4 of the signed deed provided that, if the Quarry has not sold within two years of the date of the deed, Mamro and Michael must do all things required to discharge the Haberfield Mortgage on or before 2 October 2020.

264. Clause 4 also required Michael and Mamro, jointly and severally, to pay all principal, interest, fees, charges and costs in relation to the Haberfield Mortgage, and to comply with the terms of the Haberfield Mortgage, at all times while the Haberfield Mortgage remained on foot.

265. Clause 5 of the signed deed provided:

“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:

(a) Maria shall be authorised to exercise all powers as Attorney for Michael and Mamro to discharge the Haberfield Mortgage;

(b) Mamro and Michael must, within seven (7) days of default, provide Maria with a statement of Michael and Mamro’s assets and liabilities certified by an accountant; …

(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.”

266. Clauses 6(a) and (b) of the signed deed provided:

“(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.

(b) Michael will vacate the Haberfield Property within 90 days upon the earlier of the following events occurring:

(i) Maria giving Michael notice to vacate for any reason whatsoever;

(ii) The death of Maria; or

(iii) The property being sold to any third party other than to Michael.”

267. The 90-day period for Michael to vacate the Haberfield Property following one of the events referred to in clause 6(b) of the signed deed had been inserted by Michael in a handwritten amendment made immediately prior to his signing the deed, change the period from 60 to 90 days. Clause 6(b) retained the same drafting note inserted by Ms De Pasquale referred to at [245] above:

“NOTE: whilst we are hopeful that there will be no reason for our client to exercise her right in clause (b)(i), there have been issues in the past where your client was requested to leave the property and we don’t want to have a repeat situation.”

268. Clause 6(c) of the signed deed provided that Michael’s right to occupy part of the Haberfield Property was a contractual licence only and did not confer any tenancy or other interest in the property on him. Clause 6(d) provided that the right was personal to Michael and was not permitted to be assigned or sub-licensed. Clause 6(d) required Michael to comply with Maria’s directions in relation to the Haberfield Property at all times during his residence there.

269. Clause 7 of the signed deed contained a release in the following terms:

“(a) Michael agrees to release and forever discharge Maria for all costs incurred by him for the Renovation Works in addition to any claims, actions, suits, demands and rights, past, present and future arising from or related to the Renovation Works at the Haberfield Property or any other claim that he may have over the Haberfield Property.

(b) Michael expressly agrees that he has no equitable interest in the Haberfield Property as a result of the Renovation Works.

(c) Michael agrees that he will not at any time or for any reason attempt to seek to have Maria enter into, sign or contract to encumber the Haberfield Property on the basis that she is elderly and that she needs the security of having her principal place of residence unencumbered.”

270. The signed deed defined the “Renovation Works” as:

“… all works being structural or internal works of any nature undertaken by Michael at the Haberfield Property.”

271. It will be recalled that Michael did not seek to negotiate any change to clause 7 after it was introduced by Maria in the third draft of the deed on 3 August 2018. [54]

272. Clause 8 of the signed deed entitled “Further Release by Michael – Maria’s Estate” provided:

“(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) 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.”

273. It will be recalled that Michael did not seek to negotiate any change to clause 8 after it was introduced by Maria in the third draft of the deed on 3 August 2018. [55]

274. I note that clause 8(a) of the signed deed inaccurately refers to Maria’s shares in MTP Marble & Granite and Finewest Holdings as having been transferred to Michael. Rather than taking a transfer of those shares, Michael registered his own company – MTP Marble Granite Sandstone – which then began operating the business of MTP Marble & Granite, using that company’s stock and equipment. Neither Michael nor MTP Marble Granite Sandstone paid any consideration for the business, stock and equipment that was so appropriated. [56]

275. By clause 9 of the signed deed, Maria agreed to instruct her solicitors to amend her will in order to grant Michael a right of first refusal to purchase the Haberfield Property upon her death. Clause 9 contained a series of acknowledgements and agreements by Maria in relation to the right of first refusal which Michael had inserted in the fourth draft of the deed, Maria had deleted from the fifth draft on the basis that it would be the subject of a provision in her will, but which Michael had reinstated by hand before signing the deed on or about 23 August 2018. Maria ultimately accepted the reinstatements by signing the deed as amended by Michael on 12 October 2018. The reinstated provisions included an acknowledgement by Maria, in terms drafted by Ms Alexander on Michael’s instructions, that Michael wished to purchase the Haberfield Property from Maria’s estate after her death.

276. Clause 10 of the signed deed contained an entire agreement clause and other general provisions, including the following sub-clause (c):

“The Parties acknowledge that this Deed has been prepared by Maria’s Lawyers, being De Pasquale Lawyers and amended by Michael’s lawyers being MDW Law. Michael and Maria expressly acknowledge that each of them has obtained independent legal advice in relation to this Deed and that they have understood the terms and effect of this Deed and have signed it freely and voluntarily.”

277. Clause 10 also included the following sub-clause (j):

“The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right nor dies [sic] any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing executed by the party to be bound by the waiver in the presence of a solicitor after having received legal advice.”

278. As I have already mentioned, Ms Alexander’s firm had ceased acting for Michael and Mamro in relation to the deed before Maria signed it on 12 October 2018.

279. On 16 October 2018, De Pasquale Lawyers wrote to Michael enclosing a copy of the deed executed by Maria and advising that they held instructions from Maria to prepare amendments to her will in accordance with the deed. There is no evidence of any response from Michael to that communication, and Maria is not aware of any response. 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. Michael gave no indication to Maria after he received the signed deed from her solicitors that he did not consider the deed to be binding and enforceable. On 23 November 2018, Maria signed a new will which conferred on Michael a right to purchase the Haberfield property following Maria’s death at the market value determined by an independent valuer appointed by Maria’s executor.

Findings in relation to the negotiation and execution of the 2018 deed

280. There is no dispute that Michael had a conversation with Maria, in the presence of Daniela, in May 2018 during which he asked Maria if he could return to live at the Haberfield property. Maria and Daniela independently gave accounts of that conversation which are broadly consistent. For the reasons explained at [23]-[38], I prefer their evidence to Michael’s evidence about what was said during that conversation. In particular, I reject Michael’s evidence that he told Maria and Daniela during that conversation that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, or that he was struggling mentally. Those aspects of Michael’s evidence about the conversation are inconsistent with his own evidence in cross-examination that he hid those things from Maria and other people, [57] and I reject his evidence that he was even in that state at the time for the reasons explained immediately below.

281. I reject Michael’s evidence that he was depressed, struggling mentally, drinking heavily, unable to function and contemplating suicide during the period in which the 2018 deed was negotiated and at the time that he signed the deed on 23 August 2018, for the following reasons.

282. First, Michael’s evidence is uncorroborated by any medical or other evidence, and is inconsistent with the observations made by each of Maria, Adriana and Daniela at the time. Each of those witnesses has given an independent account of what she observed based on her own interactions with Michael, including in the case of Adriana acknowledging the limited nature of those interactions. Maria’s evidence about her observations is consistent with Michael’s own evidence that their relationship in the period after he moved back into the Haberfield property was as good as it had been in earlier times, and that they enjoyed dinner together every evening. For the reasons explained at [23]-[38] above, I regard the evidence of Maria, Adriana and Daniela about these matters as credible, and I accept that evidence.

283. Second, Michael’s evidence about his alleged state of mind and coping difficulties at the time is very difficult to reconcile with his own evidence that he was negotiating with potential purchasers of the quarry during this period and discussing those negotiations with Maria. Absent any explanation of his claimed ability to engage in those negotiations at a time when he says that he was struggling mentally, not coping, and not “all there”, those two aspects of Michael’s evidence are inconsistent. [58]

284. Third, Michael’s evidence is inconsistent with the contemporaneous documentary evidence discussed at [210]-[258] above, which demonstrates that Michael was capable of providing, and did provide, instructions to his solicitors about successive drafts of what became the 2018 deed, including instructions about amendments that he sought to those drafts that favoured his own interests at the time.

Events following the execution of the 2018 deed

298. 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. According to Michael’s evidence, he chose to move out of the Haberfield property at that time because his sister Paula told him that she was also coming to live at the property together with her husband and children. Michael was angry about this because he believed that the Haberfield property was his home, and he considered that he had spent over one million dollars renovating the property. As I have explained earlier in these reasons, Michael has not proved his claim to have spent in excess of one million dollars, or any particular sum, in renovating the Haberfield property. Moreover, Michael had signed the 2018 deed which expressly provided that any expenditure on the Haberfield extension works did not entitle him to repayment or to an equitable interest in the Haberfield property.

299. Consistently with clause 9 of the 2018 deed, Maria signed a new will on 23 November 2018. The will conferred on Michael a right to purchase the Haberfield property following Maria’s death at the market value determined by an independent valuer appointed by Maria’s executor.

300. Notwithstanding clause 3 of the 2018 deed, Maria is not aware of any steps taken by Michael or Mamro to sell the quarry in the period after the execution of the 2018 deed. The Haberfield mortgage was not discharged by 2 October 2020 as required by clause 4 of the 2018 deed.

301. On 24 August 2021, Maria caused Ms De Pasquale to write to Michael noting that she had acted in good faith in not pressing for the discharge the Haberfield mortgage since 2 October 2020 but had not waived her rights under the 2018 deed. The letter notified Michael that, if the mortgage was not discharged within 30 days, Maria would commence proceedings for specific performance of the 2018 deed and to recover her costs of enforcement on an indemnity basis in accordance with clause 5 of the 2018 deed.

302. Michael stopped paying Maria’s expenses after he moved out of the Haberfield property in September 2021. By the time of the hearing in August 2024, Maria had sold the two apartments in Rome which she inherited from Michele in order to raise funds to pay her own expenses. It will be recalled that Michael had taken all of the other property that Maria inherited which might otherwise have provided her with a source of income.

303. In defiance of clause 7 of the 2018 deed, Michael lodged a caveat against the title to the Haberfield property on 28 October 2021 claiming a beneficial interest in the land pursuant to a trust said to arise from .

The parties’ claims and defences

307. Maria sues Michael and Mamro to enforce the 2018 deed.

308. Maria seeks a declaration that the 2018 deed is valid and ought to be specifically performed, and an order requiring Michael and Mamro to specifically perform the 2018 deed by: (1) discharging the mortgage over the Haberfield property which was due to be discharged by no later than 2 October 2020 under clause 4 of the 2018 deed; (2) taking all reasonable steps to enable Maria to exercise all powers as attorney for Michael and Mamro to bring about the discharge of that mortgage pursuant to clause 5.1 of the of the 2018 deed; and (3) indemnifying Maria, and keeping her indemnified, against all costs, fees, charges, expenses or liabilities incurred by her as a result of their defaults, as required by clause 5.1 of the 2018 deed.

309. Maria seeks a further order that, in the event that Michael and Mamro fail to discharge the Haberfield property mortgage within 14 days of the date of the order for specific performance, Maria may execute all documents and take all steps as are necessary to effect the discharge of that mortgage, without further reference to Michael and Mamro and without further order of the Court, in her capacity as attorney for Michael and Mamro pursuant to clause 5.1 of the 2018 deed.

310. Further to the specific performance orders referred to above, Maria seeks a declaration that Michael does not have any equitable interest in the Haberfield property and an order pursuant to s 74MA of the Real Property Act 1900 (NSW) requiring him to withdraw his caveat lodged against the title to the Haberfield property.

311. Maria also seeks an order pursuant to s 95 of the Succession Act 2006 (NSW) approving Michael’s release in clause 8(c) of the 2018 deed of his rights to apply for an order for family provision out of the whole or any part of the estate or the notional estate of Maria, including the Haberfield property,.

312. Michael and Mamro deny that the 2018 deed is enforceable on the basis that, before Maria executed the document on 12 October 2018, her solicitors had advised Michael and Mamro’s solicitors on 23 August 2018 that they were “unable to accept” the document executed by Michael and Mamro and that “the matter needs to be resolved”, and that Maria’s solicitors had pressed for a response to that email on 24 September 2018.

313. Maria denies that her solicitors’ initial response to the 2018 deed executed by Michael and Mamro constituted a rejection of it. Further, Maria contends that the parties manifested their mutual assent to the deed, and affirmed the deed and elected to be bound by it, by their conduct following her execution of the deed on 12 October 2018. Maria refers to the lack of any objection by Michael and Mamro to Maria’s delivery of the executed deed on 16 October 2018, Michael’s exercise of his right of residence at the Haberfield property in accordance with clause 6, and Maria’s amendment of her will in accordance with clause 9 of the 2018 deed. Further, or alternatively, Maria relies on the doctrines of promissory and conventional estoppel as precluding Michael and Mamro from alleging that the 2018 deed is void or unenforceable.

“17. On or around the end of May 2018, the first defendant [Michael] was in a state of special disadvantage vis-à-vis the plaintiff [Maria] (Special Disadvantage Circumstances). The Special Disadvantage Circumstances arose as a result of the following:

(a) as at May 2018, the first defendant had been in a long-term relationship with his then-wife, Ms Melanie Hunter, for a period of 16 years;

(b) as at May 2018, the first defendant and Ms Hunter were living in a property located at Hunters Hill (Hunters Hill Property);

(c) in or around the middle of May 2018, the first defendant discovered that Ms Hunter was having an affair with one of his employees;

(d) following the discovery of the affair, Ms Hunter made false accusations against the first defendant, which led to the police visiting him at his premises;

(e) in consequence of the discovery of the affair and the prosecution of false accusations by NSW Police, the first defendant;

(i) became depressed and contemplating suicide;

(ii) began drinking large amounts of alcohol;

(iii) was disabled from his usual occupation, irregularly attended work and had limited access to funds;

(iv) was mentally unfit; and

(v) was impaired in his ability to judge his own best interests.

18. The first defendant’s Special Disadvantage Circumstances continued from May 2018 until at least 12 October 2018, when the Purported Deed was executed (Special Disadvantage Period).

19. At all relevant times throughout the entire Special Disadvantage Period, the plaintiff knew that the first defendant was affected by the Special Disadvantage Circumstances.

Particulars

The first defendant had numerous telephone and in-person conversations with the plaintiff between May 2018 and October 2018 where he informed the plaintiff of these matters and where the plaintiff could observe them for herself.

20. At all relevant times throughout the entire Special Disadvantage Period, the plaintiff knew that the first defendant was vulnerable as a result of the Special Disadvantage Circumstances.

21. At all relevant times throughout the entire Special Disadvantage Period, the plaintiff knew that the first defendant wanted to return to the Haberfield Property and live with his mother, the plaintiff, given his vulnerability.

22. In early June 2018:

(a) the plaintiff visited the first defendant at the Hunters Hill Property with her daughter Daniela Guerrara;

(b) the first defendant requested that the plaintiff permit him to stay with her in the Haberfield Property;

(c) the plaintiff told the first defendant that she would take care of him, he could trust her, and he could stay with her at the Haberfield Property so long as he signed a document; and

(d) the first defendant stated that he would do whatever she required so long as he could reside with her.

23. The first and second defendants’ signatures on the Purported Deed were obtained as a result of the plaintiff taking knowing and unconscientious advantage of the first defendant’s Special Disadvantage Circumstances.

Particulars

The defendants refer to:

(i) the plaintiff’s knowledge of the Special Disadvantage Circumstances;

(ii) the power imbalance between the plaintiff and the first defendant at all material times by reason of the Special Disadvantage Circumstances;

(iii) the terms of the Purported Deed, which are significantly one-sided;

(iv) the fact that they would not have signed the Purported Deed had they not been impacted by the Special Disadvantage Circumstances.”

316. Michael and Mamro rely on the matters pleaded in their unconscionability claim as: (1) the basis for their cross-claim for a declaration that the 2018 deed is liable to be set aside and an order setting it aside or refusing to enforce it; (2) part of the basis of their allegation that Maria obtained their signatures to the 2018 deed under the undue influence of her three daughters; (3) the basis for their cross-claim for an order under s 7 the Contracts Review Act declaring the 2018 deed void; and (4) the basis for their defence of unclean hands to Maria’s claims for relief.

317. Maria denies that Michael was suffering from a special disadvantage at any time, referring inter alia to the fact that Michael obtained independent legal advice in relation to the 2018 deed which was the product of negotiation between the parties through their respective solicitors. Maria also denies that she took unconscientious advantage of any special disadvantage (which is denied).

318. In relation to the claim under the Contracts Review Act, Maria pleads that Mamro may not be granted relief under that Act by reason of s 6(1), and neither Michael nor Mamro may be granted relief under that Act by reason of s 6(2) in circumstances where the 2018 deed was entered into in the course of, or for the purpose of, the business of the quarry owned by Mamro. Maria denies the factual allegations underpinning the claim for relief under the Act, and says that the Court would not grant relief under the Act in any event because Michael and Mamro have unclean hands, have received the benefits conferred on them under the 2018 deed, and have not offered to return, and cannot now return, those benefits. Maria further pleads that the doctrines of promissory and conventional estoppel operate to preclude Michael and Mamro from denying the validity and enforceability of the 2018 deed.

319. It is common ground that Maria, Michael and Mamro made an oral agreement in about 2014 when Maria granted a mortgage over the Haberfield property to secure a loan to Mamro for the purpose of its acquisition of the quarry.

320. On Maria’s case, that oral agreement required Michael and Mamro to discharge the mortgage over the Haberfield property on the earliest of: (1) 30 July 2024; (2) Mamro selling the quarry; (3) 90 days after the death of Maria; or (4) 90 days after the death of Michael. However, that oral agreement was superseded by the 2018 deed which she sues to enforce.

321. Michael and Mamro allege that the oral agreement made in about June 2014 required them to meet all repayments under the Haberfield mortgage and to discharge that mortgage within 10 years – that is, by about June 2024. Michael and Mamro allege that this oral agreement was superseded or varied by a further oral agreement that they made with Maria in about early 2020 to the effect that they would discharge the Haberfield mortgage when the quarry was sold, or when Maria died, and that they were not required to sell the quarry by any particular date so long as they continued to meet all repayments under the mortgage. Michael and Mamro rely on that alleged oral agreement said to have been made in early 2020 in support of their contention that Mamro is not presently in default of any obligation to discharge the mortgage over the Haberfield property. By their cross-claim filed on 1 April 2022, Michael and Mamro seek a declaration that they are only required to discharge the Haberfield mortgage upon the death or Maria or the sale of the quarry, whichever occurs first.

Consideration and determination

330. It is convenient to address the substance of the issues raised by those claims and defences under the following topics:

331. Did the parties mutually agree to be bound by the 2018 deed?

332. Is the 2018 deed liable to be set aside as unconscionable or on the basis of the alleged undue influence of Maria’s daughters?

333. Is the 2018 deed liable to be set aside under the Contracts Review Act?

334. Have Michael and Mamro elected to affirm the 2018 deed or are they estopped from alleging that it is void or unenforceable?

335. Michael’s claim to a proprietary interest in the Haberfield property.

336. The parties’ competing claims for declaratory relief.

337. Maria’s application for an order for withdrawal of the caveat.

338. Should an order be made for specific performance of the 2018 deed?

339. Maria’s application for approval of the release in clause 8 of the 2018 deed pursuant to s 95 of the Succession Act.

340. Costs.

Issue 1: Did the parties mutually agree to be bound by the 2018 deed?

331. As referred to at [312] above, this issue arises from Michael’s and Mamro’s pleaded denial that the 2018 deed is enforceable by reason of the email that Maria’s solicitors sent to Michael’s solicitors on 23 August 2018 advising that they were “unable to accept” the fifth draft of the deed executed by Michael and Mamro, which incorporated markings delineating the most recent amendments and drafting notes and comments addressed to Michael’s solicitors. Michael’s submissions did not address this contention, but I infer that the substance of the issue intended to be raised by this pleading in the defence, which was prepared at and filed by the solicitors acting for him and for Mamro at the time, was that the 23 August 2018 email constituted a rejection by Maria of an offer by Michael and Mamro to enter into a deed on the terms of the fifth draft which they had executed.

332. In response, it was submitted on behalf of Maria that Michael and Mamro were clearly willing to be bound by the executed deed that they signed and delivered to Maria, and that Maria’s objection communicated on 23 August 2018 concerned only the form of the document. It was further submitted that, even if the 23 August 2018 email might otherwise have evidenced a rejection of that offer by Maria, this is a case in which the parties’ conduct in the period from 23 August 2018 referred to at [298]-[299] above manifested their mutual assent to the terms of that document.

333. With respect, both parties fail to grapple with the fact that the document is a deed.

334. The document was described a deed in the heading, in the recitals, and in the attestation clause, and had been so described in each of the five draft iterations of the document that the parties had been negotiating through their respective solicitors. That is objective evidence that Michael and Mamro intended, by executing the document, to create a deed. There is nothing in the terms of the deed or the circumstances surrounding its execution to suggest otherwise. Nor is there any other evidence of any contrary intention. [80]

335. The document was expressed to be executed as a deed by Michael and by Mamro. Michael’s signature was attested by Mr Luke Spartalis, a solicitor employed in Ms Alexander’s firm who certified that Michael executed the deed in his presence, under an execution clause which described the document as having been signed, sealed and delivered. This satisfies the requirements of s 38 of the Conveyancing Act 1919 (NSW). [81] Michael signed the deed in his capacity as sole director and sole company secretary of Mamro, which constitutes valid execution of the document as a deed pursuant to s 127(1)(c) and (3) of the Corporations Act 2001 (Cth).

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 . I infer that Michael’s objective in doing so was to pressure Maria to accept those final amendments. [82] 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, [83] 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.

Issue 2: Is the 2018 deed liable to be set aside as unconscionable or on the basis of the alleged undue influence of Maria’s daughters?

340. As Kiefel CJ, Bell, Gageler, Keane and Edelman JJ said in Thorne v Kennedy: [89]

“A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage ‘which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests’. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring ‘victimisation’, ‘unconscientious conduct’, or ‘exploitation’. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.”

341. These considerations are not to be applied as if they were separate elements of a cause of action. Each case calls for a precise examination of its particular facts, including the relationship between the parties, and the circumstances of the party who is said to have been vulnerable by reason of a special disadvantage. [90] There are no fixed or closed categories of circumstances that might constitute a special disadvantage but, in this context, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. [91]

342. In determining whether one party has unconscientiously taken advantage of a special disadvantage of the other, it is necessary to consider whether the first party had actual knowledge of, or was wilfully ignorant of, the special disadvantage, or had constructive knowledge of that special disadvantage in the sense that they had knowledge of facts from which they ought to have known that the other party was suffering under the particular special disadvantage. Constructive notice – where the first party is on notice of facts that might lead on inquiry to discovery that the other party has a special disadvantage – will not suffice. [92]

343. For the reasons explained at [192]-[297] above, Michael has failed to establish that he or Mamro were suffering from any special disadvantage of the kind pleaded which affected his ability to make judgments about his own best interests and the interests of Mamro during the period in which the 2018 deed was negotiated and executed. [93] On the contrary, I have found that Michael was actively engaged in the negotiation of the terms of the 2018 deed on his own behalf and on behalf of Mamro, that he was capable of providing and did provide instructions to his solicitors in response to terms proposed by Maria and in relation to matters that Michael required to be included in the deed to advance what he considered to be in his and Mamro’s best interests, and that he understood and intended that he and Mamro would be bound by the terms of the deed which they executed, including their own final amendments to the deed which they presented to Maria as a fait accompli when Michael delivered the executed deed to her on 23 August 2018. I have found that Michael and Mamro did not execute the 2018 deed under pressure from Maria or any other person. The defence and cross-claim alleging unconscionable conduct must be dismissed for that reason alone.

344. Even if Michael and Mamro had established that they were suffering from a relevant special disadvantage, they would not have established that Maria had actual or constructive knowledge of that special disadvantage, or that she unconscientiously took advantage of it, for the reasons explained at [192]-[297] above. According to Michael’s own evidence, he hid from Maria the problems that he claims to have been suffering at the time (which have not been established). [94] Maria was astute to ensure that Michael and Mamro had independent legal advice throughout the negotiation of the 2018 deed. [95] I have found that the terms of the 2018 deed as signed were not unfair to Michael or Mamro. [96] The defence and cross-claim alleging unconscionable conduct would have been dismissed for those reasons.

Issue 3: Is the 2018 deed liable to be set aside under the Contracts Review Act?

347. Section 7(1) of the Contracts Review Act provides:

“Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following—

(a) it may decide to refuse to enforce any or all of the provisions of the contract,

(b) it may make an order declaring the contract void, in whole or in part,

(c) it may make an order varying, in whole or in part, any provision of the contract,

(d) it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that—

(i) varies, or has the effect of varying, the provisions of the land instrument, or

(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.”

348. Section 9 of the Act sets out various matters to be considered by the Court in determining whether the contract, or a provision of the contract, is unjust in the circumstances relating to the contract at the time it was made.

349. As Maria submitted, the evaluative process required was explained in the following terms by Allsop P in Provident Capital Ltd v Papa: [98]

“The broad evaluation of unjustness under the Contracts Review Act 1980, s 4, s 7 and s 9 involves the normative evaluation of the totality of relevant circumstances. Inevitably minds may differ as to conclusions about such questions. Also, it is often not fruitful to compare other cases with the particular circumstances at hand, lest one be deflected from an appropriate overall assessment by focus on particular aspects relevant to any such comparison. Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances.”

350. Addressing each of the matters in s 9(2) of the Act insofar as they are relevant to the present case:

351. in relation to s 9(2)(a) of the Act, any material inequality of bargaining power between Maria on the one hand, and Michael and Mamro on the other hand, was tilted decidedly in favour of Michael and Mamro who were experienced in matters of business (whereas Maria was not) and who had a history of pressuring Maria to give up and encumber her valuable property interests for their benefit, whilst holding out and ultimately refusing to do what Maria had reasonably asked for in return; [99]

352. in relation to s 9(2)(b) and (c) of the Act, the provisions of the 2018 deed were the subject of active, self-interested negotiations between Maria on the one hand, and Michael and Mamro on the other hand, through their respective solicitors, save for the final amendments which Michael unilaterally inserted into the deed before he and Mamro executed to it and presented those amendments to Maria as a fait accompli on delivery of the executed deed on 23 August 2018. Prior to executing the 2018 deed, Michael and Mamro did negotiate for amendments to the 2018 deed; [100]

353. in relation to s 9(2)(d) of the Act, I do not consider that any of the provisions of the 2018 deed impose conditions on Michael or Mamro that were unreasonably difficult for them to comply with, or that were not reasonably necessary for the protection of Maria’s legitimate interests having regard to all of the events that had occurred in the period between the death of Michele in September 2009 and the execution of the deed by Michael and Mamro in August 2018; [101]

354. in relation to s 9(2)(e) of the Act, I have rejected Michael’s evidence that he was not reasonably able to protect his interests or Mamro’s interests at the time, and there is no evidence that his solicitor was unable to do so in any event; [102]

355. in relation to s 9(2)(f) of the Act, Michael’s economic circumstances, educational background and literacy was superior to those of his elderly mother, who had already been pressured by Michael into giving away a substantial portion of her assets for his ultimate benefit, who had no business experience, and who spoke only limited English;

356. in relation to s 9(2)(g) of the Act, the form of the 2018 deed was unobjectionable and it was expressed in language that was intelligible; [103]

357. in relation to s 9(2)(h) and (i), Michael and Mamro did have the benefit of the independent legal advice of Ms Alexander and Mr Spartalis throughout the negotiation of the 2018 deed, and those legal advisers explained the provisions of the 2018 deed to Michael throughout the negotiation process and before he executed and caused Mamro to execute the 2018 deed on 23 August 2018; [104]

358. in relation to s 9(2)(j) of the Act, Michael and Mamro rely on the alleged exploitation of their . I have rejected those allegations for the reasons explained at [192]-[297] and [343] above;

Issue 4: Have Michael and Mamro elected to affirm the 2018 deed or are they estopped from alleging that it is void or unenforceable?

354. As Maria’s submissions acknowledge, these issues do not arise in circumstances where I have found that the 2018 deed was effective as a deed and binding on all parties from 12 October 2018 and is not unenforceable or liable to be set aside by reason of unconscionability or undue influence or under the Contracts Review Act.

Issue 5: Michael’s claim to a proprietary interest in the Haberfield property

355. The 2018 deed is valid and enforceable for all of the reasons explained at [331]-[354] above. By clause 7 of the 2018 deed, Michael released and discharged Maria from the claims that he now pursues in these proceedings for a declaration that he has an equitable interest in the Haberfield property and a declaration that Maria holds 50 per cent of that property on constructive trust for him. [108]

356. Even if I had not held the 2018 deed to be valid and enforceable, I would have rejected Michael’s proprietary estoppel claim, which is the sole pleaded basis for those claims for declaratory relief, for the following reasons.

357. As Maria submitted, Michael’s claim was a claim of proprietary estoppel by encouragement. In order to succeed in that claim, Michael would have needed to establish: [109]

358. a clear and unequivocal promise made to Michael by Maria, who is said to be the party estopped in this case;

359. that Maria intended, or that a reasonable person in her position would have intended, that Michael would rely upon that promise by some action, omission or course of conduct;

360. that Michael did rely on that promise by acting, or omitting to act, in the general manner that would have been expected by Maria; and

361. that Michael will suffer detriment if the promise is not fulfilled, in the sense that he will be left in a worse position as a consequence of his reliance on the promise than if the promise had not been made.

362. Those four elements are not satisfied in the present case.

363. As to the first and second elements, Michael has not discharged his onus of proving that Michele made the alleged promises to the effect that Michael would inherit the Haberfield property if he worked on the property (or all of the family’s properties) together with Michele. [110] It necessarily follows that Michael has failed to prove that Maria was a party to, or was aware of, those alleged promises.

364. I reject Michael’s pleaded contention that Maria agreed to transfer the whole of her interest in the Annandale and Leichhardt properties to Mamro at Michael’s request, in addition to leaving 50 per cent of her estate (including the Haberfield property) to Michael, in recognition of the alleged understanding between Michele and Michael that Michael would inherit the Haberfield property (or all of the family’s properties) in return for his work. There is no evidence of any such agreement. I have found that Maria agreed to transfer her interest in the Annandale and Leichhardt properties under pressure from Michael, who caused those transfers to be registered without Maria’s authority. That pressure was in the form of Michael lying to Maria about the terms and effect of Michele’s last will. [111] Moreover, Michael’s pleaded contention misstates the effect of Maria’s will dated 11 July 2007, [112] and is inconsistent with the draft deed that Maria prepared in 2011 for Michael to sign in consideration of the transfer of her interest in the Annandale and Leichhardt properties. That draft deed expressly provided that Michael had no legal or equitable interest in the Haberfield property. [113]

Issue 6: The parties’ competing claims for declaratory relief

370. For the reasons explained at [331]-[354] above, and it is appropriate to make the declaration sought by Maria that the 2018 deed is valid and enforceable.

371. For the reasons explained at [339] above, Michael and Mamro are not entitled to a declaration that they are only required to discharge the Haberfield mortgage upon the death or Maria or the sale of the quarry, whichever occurs first.

372. For the reasons explained at [355]-[368] above, it is appropriate to make the declaration sought by Maria that Michael does not have any equitable interest in the Haberfield property. For the same reasons, Michael’s claim for a declaration that he does have an equitable interest in that property and that Maria holds 50 per cent of the property on constructive trust for him must be dismissed.

Issue 7: Maria’s application for an order for withdrawal of the caveat

373. For the reasons explained at [355]-[368] above, Maria is entitled to an order for pursuant to s 74MA of the Real Property Act requiring Michael to withdraw his caveat lodged against the title to the Haberfield property.

Issue 8: Should the Court make an order for specific performance of the 2018 deed?

374. As was submitted on behalf of Maria, she has complied with her obligations under the 2018 deed by:

375. permitting Michael to live at the Haberfield property with his daughter, which he did until about September 2021 when he moved out of the property of his own accord because he was angry with Paula about her decision to move into the property; [121] and

376. 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. [122]

377. I reject Michael’s unclean hands defence referred to at [316] above for the reasons explained at [340]-[353] above.

378. There is no discretionary reason to refuse the orders sought by Maria for specific performance of the 2018 deed, and ancillary orders, in the circumstances of this case.

Issue 9: Maria’s application for approval of the release in clause 8 of the 2018 deed pursuant to s 95 of the Succession Act

377. The provisions of clause 8 of the 2018 deed are set out at [272] above. Clause 8(c) contains the release in respect of which Maria seeks the approval of the Court under s 95 of the Succession Act. That section provides:

“(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.”

378. As Maria submitted, an application for approval of a release under s 95 is not a mere formality. It does not necessarily follow from the parties’ agreement to the terms of the 2018 deed which I have held to be valid and enforceable that the Court should approve the release in clause 8(c) of that deed. [123]

379. In determining whether to approve the release, the Court is required to take into account all of the circumstances of the case, including the events leading to the giving of the release, the estimated value of Maria’s estate or notional estate, and the matters referred to in s 95(4)(a) to (d). The matters in s 95(4)(a), (b) and (d) will be considered by reference to the party granting the release (in this case, Michael), but s 95(4)(c) will be considered by reference to both Michael and Maria. [124]

380. The events leading to Michael giving the release have been described in detail at [40]-[297] above. As I have said at [291] above, the 2018 deed represented a negotiated resolution of the conflict that Michael had created within his family by causing Maria’s interest in the Annandale and Leichhardt properties to be transferred to Mamro without Maria’s authority, [125] by taking the marble business and its assets for his new company MTP Marble Granite Sandstone, [126] by persuading Maria to mortgage the Haberfield property so as to assist Mamro to finance the purchase of its quarry property, [127] and by failing to taking any steps to cause Mamro to repay the debt secured by that mortgage even after the Annandale property was sold for $3,150,000 in October 2017. [128] By that conduct, Michael had obtained the benefit of the whole of Maria’s interest in the Annandale and Leichhardt properties, and the whole of the value of the marble business, in circumstances where he had stood to inherit only 50 per cent of those property interests and only 50 per cent of the business, with his three sisters to inherit the remaining 50 per cent (as tenants in common), under Maria’s will dated 11 July 2007. By taking his “early inheritance” as it is described in the 2018 deed, Michael reduced his sisters’ potential inheritance under Maria’s will dated 11 July 2007 to 50 per cent of the Haberfield property and Italian apartments, assuming that those assets formed part of Maria’s estate at the time of her death. The Italian apartments have since been sold.

381. The inventory of property annexed to the grant of probate in favour of Maria in respect of Michele’s last will estimates the value of Maria’s 50 per cent interest in the Annandale property as $750,000 and the value of Maria’s 50 per cent interest in the Leichhardt property as $550,000. By the time the 2018 deed was signed, Mamro had sold the Annandale property for $3,150,000, which implies that the 50 per cent interest in that property that Michael had caused to be transferred from Maria to Mamro unencumbered had a value of approximately $1,575,000 by the time Mamro sold the Annandale property. There is no evidence of the value of the 50 per cent interest in the Leichhardt property that had been transferred to Mamro or the value of the marble business that Michael appropriate for MTP Marble Granite Sandstone. However, it can be said that the value of Maria’s assets that had been transferred to directly or indirectly to Michael as at the date of the 2018 deed was at least $1,575,000. In addition, Michael had received the benefit of Maria’s financial support in the form of the mortgage that she had granted over the Haberfield property to secure the loan that financed Mamro’s acquisition of the quarry property. There is no evidence of the value of the quarry property or the value of any quarry business conducted on that property. Maria had also provided rent-free accommodation to Michael for many years, and the 2018 deed set out the terms on which she would continue to do so.

Issue 10: Costs

388. The 2018 deed is valid and enforceable for all of the reasons explained at [331]-[354] above. Michael and Mamro are in default under clause 5.1 of the 2018 deed by reason of their failure to take all steps necessary to discharge the mortgage over the Haberfield property by 2 October 2020. Maria’s costs incurred as a result of that default include the costs of these proceedings. Maria is therefore entitled under clause 5.1(c) of the 2018 deed to an order that Michael and Mamro pay her costs of the proceedings on an indemnity basis. [131]

Conclusion and orders

389. For all of the foregoing reasons, the orders of the Court are as follows:

390. Declare that the Deed made between the plaintiff and the first and second defendants on 12 October 2018 (Deed), whereby the defendants jointly and severally agreed to discharge registered mortgage XXXXXXXX (Mortgage) over the property known as 2 Crescent Street, Haberfield, New South Wales, being the whole of the land contained in folio identifier XX/X/XXXX (Haberfield Property), is valid and ought to be specifically performed.

391. Declare that the first defendant does not have any equitable interest in the Haberfield Property.

392. Order, pursuant to section 74MA of the Real Property Act 1900 (NSW), that, within 14 days of the date of these orders, the first defendant withdraw caveat XXXXXXXX lodged in relation to the Haberfield Property.

393. Order that the defendants specifically perform and carry into effect the Deed, within 14 days of the date of these orders, by:

(a) discharging the Mortgage over the Haberfield Property pursuant to clause 4 of the Deed; (b) taking all reasonable steps to enable the plaintiff to exercise all powers as attorney to discharge the Mortgage over the Haberfield Property pursuant to clause 5.1 of the Deed; (c) indemnifying and keeping indemnified the plaintiff against all costs, fees, charges, expenses or liabilities incurred by her as a result of the defendants' defaults pursuant to clause 5.1 of the Deed.

5. Order that, in the event that the defendants fail to discharge the Mortgage over the Haberfield Property, within 14 days of the date of these orders, the plaintiff may execute all such documents, and take all such steps, as may be necessary to effect the said discharge without further reference to the defendants and without further order from the Court, in the plaintiff’s capacity as attorney for the defendants pursuant to clause 5.1 of the Deed.
6. Order, pursuant to section 95 of the Succession Act 2006 (NSW), that the release in clause 8(c) of the Deed by the first defendant of his rights to apply for an order for family provision out of the whole, or any part, of the estate or the notional estate of the plaintiff, including the Haberfield Property be approved.
7. Order that the cross-claim be dismissed.
8. Order that the defendants pay the plaintiff’s costs of these proceedings on an indemnity basis.
9. Order, pursuant to section 101(4) of the Civil Procedure Act 2005 (NSW), that the defendants pay interest on costs.
10. Grant liberty to the parties to apply on three days’ notice in the event of any difficulty arising in the specific performance of the Deed.

**********

Endnotes

Folio identifier XX/XX/XXXX.

Folio identifiers X/XXXXX and X/XXXXX.

Folio identifiers X/XXXXX, X/XXXXX and X/XXXXX.

ACN 074 230 783.

ACN 074 781 972.

ACN 147 383 177.

ACN 146 841 643.

(1995) 49 NSWLR 315; at 319.

See [77]-[78] below.

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing).

ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, Bathurst CJ agreeing).

(1893) 6 R 67.

(1959) 101 CLR 298; [1959] HCA 8.

See [103] below.

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 321-322 (Windeyer J); Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [51] (Gleeson CJ and McHugh J); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [77] and [81] (Gleeson JA with the concurrence of Ward JA, as her Honour then was, and Emmett JA); Stoltenberg v Bolton (2020) 380 ALR 145; [2020] NSWCA 45 at [105]-[107] (Gleeson JA, referring to Payne v Parker [1976] 1 NSWLR 191 at 201-202, with the concurrence of Macfarlan and Brereton JJA).

See, for example, [77]-[91], [164], [186]-[188], [217]-[220], [237]-[241], [253], [280], [283] and [284] below.

See [40]-[76] below.

See [99]-[104] below.

See, for example, [175] below. Michael’s assertion against his sisters was raised in his opening submissions.

See, for example, T273, T274, and T277-279.

See, for example, [75], [186]-[188] and [216]-[217] below.

See [95] and [106]-[112] below.

Folio identifier XX/X/XXXX.

See [192]ff below.

ACN 001 066 235.

ACN 074 781 972.

ACN 074 230 783.

See [46] above.

Evidence Act 1995 (NSW), s 140; Warner v Hung; In the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liquidation) (No. 2) (2011) 197 ALR 56; [2011] FCA 1123 at [48] (Emmett J); John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94] (Hammerschlag J, as his Honour then was); Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [45]-[47] (Gleeson JA, Bell CJ and Stern JA agreeing).

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 at 548-549 (Isaacs J); Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 (McLelland CJ in Eq); Eggins v Robinson [2000] NSWCA 61 at [26] (Sheller JA, Powell JA agreeing); Chant v Curcuruto [2021] NSWSC 751 at [262]-[270] (Hallen J); Re Estate of Legler [2024] NSWSC 726 at [18]-[19] (Pike J).

[2015] NSWSC 451 at [94] (citations omitted).

Watson v Foxman (1995) 49 NSWLR 315 at 319 (McLelland CJ in Eq).

See [99] above.

See [77]-[91] above.

See [95] above.

See [83]-[90] above.

Folio identifiers X/XXXXX and X/XXXXX

Folio identifiers X/XXXXX, X/XXXXX and X/XXXXX.

See [140]-[144] below.

See [89]-[90] above.

See [137]-[159] below.

See [127]-[131] above.

See [136] above.

See [166]-[178] below.

See [73]-[76] above.

See [166]-[178] below.

ACN 149 943 251.

See [137]-[153] above.

Folio identifier X/XXXXX.

See [92]-[104] above.

See [146]-[149] above.

See [137]-[159] above.

See [192] above.

See [226] and [246] above.

See [228] and [247] above.

See [140]-[142] above.

See [206] above.

See [208]-[209] above.

See [237]-[241] above.

See [145]-[158] above.

See [137]-[144] above.

See [166]-[178] above.

See [178] above.

See [73]-[76] and [92]-[104] above.

See [77]-[91] and [105]-[107] above.

See [256] above.

See [253] above.

See [251] above.

Recital D and clause 2: see [260]-[261] above.

Clauses 3-5: see [262]-[265].

Recital G and clause 7: see [260] and [269]-[271] above.

Clause 6: see [266]-[268] above.

Clause 8: see [272] above.

Clause 8: see [272] above.

Clause 9: see [275] above.

See [210]-[258] above.

See [196], [207]-[258] above.

See [145]-[157] above.

See [169] above.

Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [2.5].

Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208 at [105] (Ipp JA, Giles and McColl JJA agreeing); Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [2.6].

See [252] and [291] above.

See [124]-[159] above.

Segboer v A J Richardson Properties Pty Ltd [2012] NSWCA 253 at [72]-[73] (Sackville AJA, Allsop P and Campbell JA agreeing); Pittmore v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [71]-[76] (Leeming JA, Bell P and Gleeson JA agreeing); Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 at [61]-[73] (Ward P, Gleeson and White JJA agreeing).

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 534-535 (McHugh JA, Samuels JA agreeing); Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 especially at [80]-[81] (Heydon JA, Mason P and Ipp AJA agreeing).

See [25]-[31] above.

See [306] above.

See [262]-[265] above.

(2017) 263 CLR 85; [2017] HCA 49 at [38] (citations omitted) (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).

Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 at [39] (Kiefel CJ, Keane and Gleeson JJ).

Ibid at [40] (Kiefel CJ, Keane and Gleeson JJ), referring to Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 at 462 (Mason J, as his Honour then was).

Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 at [4]-[10] (Bell CJ) and [197]-[199] (White JA).

The alleged “Special Disadvantage Circumstances” are pleaded in paragraphs 17-23 of the Amended Defence filed on behalf of Michael and Mamro, which is set out in full at [315] above.

See [206] above.

See [207]-[297] above.

See [291] above.

See [296] above.

(2013) 84 NSWLR 231; [2013] NSWCA 36 at [7] (Allsop P, Sackville AJA agreeing).

See [145]-[159] and [166]-[178] above.

See [207]-[297] above.

See [259]-[277] above.

See [281]-[297] above.

See [259]-[277] above.

See [207]-[297] above.

See [145]-[159] and [166]-[178] above.

See [166]-[178] above.

See s 9(1) of the Act.

See [269] above.

Kramer v Stone (2024) 421 ALR 106; [2024] HCA 48 at [36]-[41] (Gageler CJ, Gordon, Edelman and Beech-Jones JJ).

See [79]-[91] above.

See [121]-[131] and [137]-[159] above.

See [82]-[90] above.

See [146]-[147] above.

See [76] above.

See [104] above.

See [105] and [207]-[297] above.

Kramer v Stone (2024) 421 ALR 106; [2024] HCA 48 at [39] (Gageler CJ, Gordon, Edelman and Beech-Jones JJ).

See [135]-[136], [154], [174] and [302] above.

See [160]-[165] above.

See [355] above.

See [266]-[268] and [298] above.

See [275] and [299] above.

Kelly v Kelly [2019] NSWSC 994 at [72] (Hallen J).

Ibid.

See [145]-[158] above.

See [137]-[144] above.

See [166]-[178] above.

See [178] above.

See [40]-[112] above.

See [228], [236] and [247] above.

See [265] above.