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[2026] NSWCA 44
respondent. Application for leave to appeal refused with costs.
The applicants wanted to appeal a decision that corrected company share registers to reflect their sister's interests under their mother's will. They argued that evidence about their guarantees, financing and development work should have been admitted to support a defence of laches. The Court of Appeal held that the relevant particulars had been expressly abandoned, that the asserted prejudice had not been properly set out in the defence, and that the applicants had not shown the respondent's delay caused their financial commitments. The primary judge's evidentiary rulings did not establish the kind of injustice required for leave to appeal, so leave was refused with costs.
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2,190 words · generated 08/10/2026
Mario and Antonella Pizzolato sought leave to appeal after the primary judge ordered the registers of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd corrected to show Vittoria Marques, their sister, as holding equal interests alongside them in shares left by their late mother ([1]-[3], [20]). The proposed appeal was narrow: it concerned the primary judge's refusal to admit parts of affidavits from Mario and Antonella, not a general challenge to every aspect of the primary judgment ([3]-[5], [45]-[46]).
4 cited instruments linked from this judgment.
Their mother died in November 2015. Her will, made in 1994, appointed Mario executor and provided for the estate to be divided equally between the siblings. Probate was granted in June 2016 ([10]-[11]). The shareholdings in the two companies had not been transferred to the siblings by September 2016, and Mario did not distribute them as the will contemplated ([12]). The Court records several requests for transfer: correspondence in 2018, a follow-up in 2020, another in 2022, and further demands in 2023 ([13]-[14], [18]-[19]). The proceedings to correct the registers began in July 2024 ([19]).
The applicants' Points of Defence pleaded several defences, including estoppel and laches. Paragraph 30(c) said they repeated paragraphs 11 to 29, while paragraph 30(e) alleged that the respondent's delay had caused prejudice ([23]). Paragraph 26 described alleged reliance, including personal guarantees, funds contributed to the companies and time spent on their business. But in March 2025, the applicants' solicitor said paragraphs 26 and 27 were unsupportable and that the estoppel case would fail. The estoppel defence in paragraphs 25 to 29 was then expressly recorded as “not pressed” ([25]-[27]).
At trial, the applicants sought to rely on affidavit material about the companies' structure, development activities, financing, guarantees and financial pressures ([28]-[30]). The primary judge excluded significant parts of it, finding that the material was not relevant to the pleaded issues or raised factual propositions for which the respondent had no notice. In particular, the proposed contention that a change in share ownership might trigger a financing event of default had not been pleaded ([37]-[41]).
The Court of Appeal refused leave to appeal with costs. Bell CJ gave the principal reasons, with Leeming JA and McHugh JA agreeing ([60]-[65]).
The leave threshold shaped the result. The parties accepted that the applicants had to show an issue of principle, a question of public importance, or reasonably clear injustice going beyond something merely arguable. The applicants relied on the last basis, accepting that the evidentiary ruling was not presented as a question of principle or public importance ([7]-[9]). The Court concluded that the primary judge's ruling did not meet that threshold ([58]-[60]).
The central problem was the status of paragraphs 26 and 27 of the defence. The applicants said those particulars continued to support laches because paragraph 30(c) incorporated them by reference. The Court rejected that reading in light of the solicitor's unqualified statement that the paragraphs were unsupportable and the formal abandonment of the estoppel defence. The respondent and the primary judge could reasonably proceed on the basis that the applicants no longer relied on those matters, including the allegations about guarantees and contributions to company finances ([25]-[27], [47]-[48]).
The applicants' position also lacked a clear account of how the financial arrangements amounted to prejudice caused by delay. Bell CJ observed that entering guarantees “per se” had not been explained as relevant prejudice for laches ([49]). The pleadings alleged that delay had caused prejudice, but the applicants' appellate argument identified financial arrangements that occurred during the period of delay without showing a causal link to it ([51]-[52]).
That distinction mattered. The applicants accepted that the evidence did not show they would have avoided the guarantees if they had known the respondent would bring proceedings, or that they acted believing she had abandoned her claim. The correspondence showed she continued to assert her entitlement during the period ([51]). As Bell CJ put it, there was “no nexus between these steps and any delay” ([52]).
The Court also considered the particular context of the claim. Mario was executor of the estate and held the shares that were to be distributed under the will. Bell CJ drew on Orr v Ford, describing the relevant equitable inquiry as whether inaction or standing by placed a defendant or third party in a position where granting relief would be inequitable and unreasonable ([53]-[54]). The judgment highlighted that the applicants did not identify one of the situations discussed in Orr, and the estoppel case had been abandoned ([54]).
The primary judge's procedural concern was not merely technical. Without properly identified material facts, the respondent lacked notice of the case she needed to meet, and the Court lacked a defined issue to decide. Leeming JA emphasised that the alleged prejudice was “unparticularised” and that the proposed evidence fell outside the issues raised by the pleadings ([62]). The possible event-of-default argument was rejected under s 135 of the Evidence Act because it had not previously been signalled, and was not repeated in the Court of Appeal ([63]).
The judgment does not purport to change the law of laches. It applies existing principles, principally the approach discussed in Orr v Ford, and uses the case to assess the applicants' asserted prejudice ([53]-[54]). The Court describes Orr as a leading authority on delay and draws attention to its treatment of “gross laches” in the context of claims concerning express trusts ([53]-[54]).
As summarised by Bell CJ, Orr does not reduce the inquiry to the passage of time. The relevant considerations include the nature of the claim and the parties' conduct, and the ultimate concern is whether granting relief would be inequitable and unreasonable because the claimant's inaction caused serious and unfair prejudice ([53]). The judgment does not set out a comprehensive checklist for all laches cases. It instead applies that equitable approach to the pleaded and evidentiary record before it.
The decision also illustrates the relationship between evidence and pleading. Section 56 of the Evidence Act requires relevance for admissibility, and s 135 was relied on to exclude evidence where receiving it would unfairly require the respondent to meet a factual case of which she had no notice ([39], [62]-[63]). The Court did not announce a new pleading rule. It endorsed the primary judge's conclusion that these particular factual allegations were outside the issues the parties had defined.
The case's practical contribution is therefore an application, not a doctrinal shift. It shows that alleging “delay caused prejudice” did not make all evidence of financial activity during the delay relevant. On this record, the applicants needed to identify the alleged prejudice and explain its connection to the delay, particularly after the particulars they relied on had been expressly disavowed ([48]-[52], [62]).
At [48], Bell CJ concluded it was reasonable to understand that reliance on the abandoned particulars was no longer being pursued. In plain English, repeating abandoned paragraphs elsewhere in the defence did not restore them where the applicants had clearly said they were unsupportable.
At [49], Bell CJ said the applicants had not explained how guarantees, by themselves, constituted prejudice for laches. Put simply, proof that a person gave a guarantee is not automatically proof that another person's delay caused relevant harm.
At [52], Bell CJ identified the missing “nexus” between the applicants' steps and the respondent's delay. The practical meaning is that actions taken during a period of delay are not necessarily actions taken because of that delay. The applicants accepted they could not show that they would have acted differently if they had known the respondent would pursue her claim ([51]-[52]).
At [53], Bell CJ set out the approach from Orr v Ford. The question is not simply whether there was delay, but whether inaction put someone in a position where granting relief later would be inequitable and unreasonable. The judgment stresses the importance of the consequences of the delay, rather than delay viewed in isolation.
At [62], Leeming JA described the prejudice case as “unparticularised”. In plain English, the defence did not clearly tell the respondent what specific disadvantage was said to have resulted from the delay. Leeming JA also noted that the defence paragraphs had been formally disavowed and there had been no later qualification of that disavowal before the attempt to rely on related matters at trial.
At [63], Leeming JA addressed the possible financing event-of-default argument. It had not been indicated beforehand, and so the primary judge was entitled to exclude the evidence on the basis identified. The point was not repeated on appeal.
The decision is most directly relevant to cases where a party resists equitable relief on laches grounds, but the alleged prejudice is vague or is not connected to the claimant's delay. Here, paragraph 30(e) alleged that delay caused prejudice, but the proposed evidence mainly described company operations, development projects, financing and guarantees ([23], [28]-[30]). The Court found that those matters did not, without more, establish the required connection ([49]-[52]).
It is also relevant where a party has expressly abandoned pleaded particulars and later tries to rely on the same facts under a different defence. The Court treated the solicitor's statement that paragraphs 26 and 27 were unsupportable, together with the formal note that the estoppel defence was not pressed, as important to how the pleadings could reasonably be understood ([25]-[27], [48], [62]).
The ruling may also be relevant to objections to affidavit evidence where the proposed material raises unpleaded matters and the opposing party has not had fair notice of the factual case. The primary judge identified possible prejudice to the respondent from having to meet factual propositions that had not been pleaded, including the financing event-of-default point ([39]-[41], [63]).
The decision should be read within its facts. The Court did not hold that guarantees or business development can never amount to prejudice in a laches case. It held that the applicants had not shown, on their pleaded case and evidence, that these particular financial arrangements were caused by this respondent's delay or that they were undertaken on the understanding that her claim had been abandoned ([51]-[57]).
The judgment itself contains no account of later judicial treatment of Pizzolato v Marques. It was decided on 30 March 2026, and the supplied judgment does not cite subsequent decisions applying, distinguishing or considering it. A later-treatment history therefore cannot be established from this source.
The judgment does explain how it used earlier authorities. Jaycar, Be Financial, Age Co, Secretary, Department of Family and Community Services v Smith, and PPK Willoughby were cited for the leave-to-appeal threshold ([7]). Orr v Ford was considered in relation to laches and the required assessment of prejudice ([53]-[54]). Macquarie Units was considered because the applicants relied on it to characterise prejudice arising from delay in the context of share-register rectification and property development ([55]-[57]).
Bell CJ distinguished the applicants' position from the evidence described in Macquarie Units. There, as the passage quoted in Pizzolato explains, the relevant business and property dealings were undertaken on an understanding that no claim to the shares was being pursued. In Pizzolato, the applicants did not establish that they had undertaken the development and given guarantees on that basis, and the respondent had continued to assert her entitlement ([55]-[56]). The judgment presents that comparison as an application of the factual reasoning in Macquarie Units, not as a report of later treatment of Pizzolato itself.
The judgment does not decide what specific evidence, in another case, would be enough to establish that delay caused prejudice through guarantees, financing commitments or development activity. It finds only that the applicants' material and submissions did not make that connection here ([49]-[57]).
It also does not determine how the laches analysis would apply if a claimant had remained silent, or if a defendant proved that particular commitments were made in reliance on an apparent abandonment of a claim. The judgment notes that the evidence here did not show such reliance and that the respondent continued to assert her entitlement ([51], [56]). The relevance of different facts remains open.
The decision does not resolve the event-of-default issue on its merits. The primary judge excluded that proposed line because the relevant financing arrangements, contractual terms, possible default and likely lender response had not been pleaded. Leeming JA noted that the point was not repeated on appeal ([39], [63]). The judgment therefore does not establish whether a particular change-of-ownership clause would create a default or what consequences would follow.
Finally, although Bell CJ discussed the heightened difficulty of laches where a beneficiary seeks trust property from an executor-trustee, the judgment did not need to determine every possible application of that principle. It applied the existing approach to this record, where the executor's non-performance, the abandoned estoppel defence and the absence of a demonstrated causal link were central ([54], [58]-[60]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pizzolato v Marques [2026] NSWCA 44
Hearing dates: 23 March 2026
Date of orders: 30 March 2026
Decision date: 30 March 2026
Before: Bell CJ at [1];
Leeming JA at [61];
McHugh JA at [65].
Decision: Application for leave to appeal refused with costs.
Catchwords: EQUITY — defences — laches — whether claim to rectification of share register barred by laches — disadvantage or prejudice suffered — no link between prejudice and delay
EVIDENCE — rejection of affidavit evidence — whether evidence purporting to be in support of laches defence outside pleadings following abandonment of estoppel argument – no error of principle
PROCEDURE – no error of principle, matter of public importance or reasonably clear injustice going beyond something that is merely arguable – refusal of leave to appeal
Legislation Cited: Conveyancing Act 1919 (NSW) s 66G
Corporations Act 2001 (Cth) s 175
Evidence Act 1995 (NSW) ss 56, 135
Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW) s 101(2)(r)(i)
Trustee Act 1925 (NSW)
Cases Cited: Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Macquarie Units Pty Ltd v Sunchen Pty Ltd [2023] NSWCA 116
Orr v Ford (1989) 167 CLR 316; [1989] HCA 4
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Texts Cited: JD Heydon and MJ Leeming, Jacobs Law of Trusts in Australia (8th ed., 2016, LexisNexis Butterworths)
Category: Principal judgment
Parties: Mario Pizzolato (First Applicant)
Antonella Pizzolato (Second Applicant)
Vittoria Marques (First Respondent)
C&V Engineering Co Pty Ltd (Second Respondent)
Pizzolato Nominees Pty Ltd (Third Respondent)
Representation: Counsel:
J C Giles SC with A d’Arville (First and Second Applicants)
D Mitchell with S Speirs (First Respondent)
Solicitors:
HWL Ebsworth (First and Second Applicants)
Di Girolamo Lawyers (First Respondent)
File Number(s): 2025/00365372
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Mario Pizzolato and Mrs Antonella Pizzolato (together, the Applicants) sought leave to appeal from the primary judge’s orders under s 175 of the Corporations Act 2001 (Cth) that the registers of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd (the Second and Third Respondents) be corrected to record Ms Vittoria Marques (the First Respondent), the sister of the Applicants, as a tenant in common in equal shares alongside the Applicants in respect of certain shares previously held by their late mother.
The First Applicant, as executor of his mother’s estate, had failed to distribute to the First Respondent the shares she was entitled to under their mother’s will following a grant of probate in 2016. He had undertaken to distribute the shares in 2018 but had failed to do so then, and continued to fail to do so notwithstanding requests by the First Respondent through her solicitors in 2020, 2022 and 2023. In 2024, the First Respondent commenced proceedings for the correction of the registers of the Second and Third Respondents.
On 21 November 2024, the Applicants filed a Points of Defence (POD) which, relevantly, raised a defence of estoppel (at paragraphs 25 to 29) and a defence of laches (at paragraph 30). The estoppel defence was abandoned in a Directions Hearing on 31 March 2025 by an affidavit of the Applicants’ solicitor, Mr De Villiers, who relevantly deposed that the view had been formed that paras 26 and 27 of the POD were unsupportable and that the Applicants’ case “is now substantially narrower”.
The Applicants’ narrow complaint in this Court arose from the primary judge’s rejection of parts of two affidavits each sworn on 28 March 2025 (one of Mario, the other of Antonella) which formed part of the Applicants’ evidence. The primary judge rejected this evidence on the basis of relevance and under s 135 of the Evidence Act 1995 (NSW) given that it raised unpleaded factual allegations, and the First Respondent would be prejudiced if required to meet a defence based on factual propositions of which she had no notice.
The Applicants contended that the primary judge erred by not admitting the evidence because the factual allegations identified in it arose directly from a defence of laches pleaded in paragraph 30 of the POD. For the identification of facts particularising the prejudice, the Applicants relied on paragraph 26 of the POD which, although effectively abandoned for the purposes of the estoppel defence, was said to be of continuing vitality for the purposes of the laches defence on the basis that it had been incorporated by reference in paragraph 30(c) of the POD.
The essence of the Applicants’ laches defence, as characterised on appeal, was that the First Respondent delayed in bringing the proceedings and in that period the Applicants had caused the companies to enter into financing arrangements for the purpose of development of land and in respect of which they had provided guarantees, whereas the First Respondent had not done so.
The Court (Bell CJ, Leeming JA and McHugh JA agreeing) held, refusing leave to appeal:
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, cited.
Orr v Ford (1989) 167 CLR 316; [1989] HCA 4; Macquarie Units Pty Ltd v Sunchen Pty Ltd [2023] NSWCA 116, considered.
BELL CJ: Mr Mario Pizzolato and Mrs Antonella Pizzolato (together, the Applicants) seek leave to appeal from a decision of Justice Black (the primary judge) sitting in the Corporations List of the Equity Division of this Court: In the matter of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd [2025] NSWSC 857 (PJ or the primary judgment). The primary judgment was ultimately given effect by subsequent orders made by the primary judge: In the matter of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd [2025] NSWSC 965.
In the proceedings below, the primary judge made orders under s 175 of the Corporations Act 2001 (Cth) (the Act) that the registers of C&V Engineering Co Pty Ltd (CV****E) and Pizzolato Nominees Pty Ltd (PN****P) (the S****econd and Third Respondents) be corrected to record Ms Vittoria Marques (the First Respondent) as a tenant in common in equal shares alongside the Applicants in respect of their late mother’s shares. The Second and Third Respondents filed submitting appearances in the present application.
The Applicants’ narrow complaint in this Court arises from the primary judge’s non-admission of parts of two affidavits each sworn on 28 March 2025 (one of Mario, the other of Antonella) (together, the Two Affidavits) which formed part of the Applicants’ evidence (the impugned evidence). The primary judge rejected the impugned evidence on the basis of relevance and under s 135 of the Evidence Act 1995 (NSW) (the Evidence Act) on the basis that it raised unpleaded factual allegations, and the First Respondent would be prejudiced if required to meet a defence based on factual propositions of which she had no notice.
The Applicants contend that the primary judge erred by not admitting the impugned evidence because the factual allegations identified in it arose directly from a defence of laches pleaded in paragraph 30 of their Points of Defence filed on 21 November 2024 (see [23] below) (the POD).
In the event the Applicants are granted leave to appeal, and the proposed ground of appeal is allowed, both parties accepted that there should be a limited retrial on the defence of delay.
Leave to appeal is required because the proposed appeal is from a final judgment or order in proceedings of the Court that involves a matter at issue which has not been shown to amount to, or be of value exceeding $100,000 (Supreme Court Act 1970 (NSW) s 101(2)(r)(i)).
It was accepted by both sides that leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; B**e Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6].
A decision to reject evidence on the basis of s 135 of the Evidence Act will rarely raise an issue of principle or a question of public importance and Mr Giles SC, who appeared for the Applicants, did not rely on either basis, volunteering that this was a “visitation” application, and relying on the third limb, namely that the challenged decision had resulted in “a reasonably clear injustice going beyond something that is merely arguable”.
For the reasons that follow, I do not think that the ruling should or could be so characterised and, in consequence, leave to appeal should be refused with costs.
The Applicants and the First Respondent are siblings. Their mother, Mrs Carmela Pizzolato, passed away on 15 November 2015. At the date of her death, Carmela relevantly owned a property situated in Concord, New South Wales (the Concord Property), 200 ordinary shares in CVE, two ordinary shares in PNP, as well as shares in a company called “Services”. The First Respondent has not sought relief in relation to the shares in Services.
By Carmela’s will dated 19 May 1994 (the Will), Mario was appointed the executor of Carmela’s estate and, by clause 3(b), the estate was to be divided in equal shares between the siblings. The Court granted probate of Carmela’s estate on 27 June 2016.
By a letter dated 20 September 2016, the solicitors acting in respect of the estate advised the Applicants and the First Respondent that the Concord Property had been transferred into their names as tenants in common. That letter also noted that the 200 shares in CVE, as well as the four shares in PNP, had not yet been transferred to the siblings jointly. Mario, as executor of the Will, has since failed to redistribute Carmela’s shares in CVE and PNP in accordance with the grant of probate, instead holding them for himself.
There was correspondence between the solicitors for the First Respondent and Mario in April and July of 2018, in which the First Respondent’s solicitors indicated their expectation to be provided with share transfers for her one-third interest in respect of her late mother’s shares in CVE and PNP, and threatened legal proceedings seeking the removal of Mario as trustee under the Will.
By letters on both 22 June 2018 and 4 July 2018 to the First Respondent’s solicitors, Mario’s solicitors indicated that Mario would transfer to the First Respondent her one-third interests in those shares, but, as mentioned above, he never did.
Following further correspondence between the parties, the First Respondent commenced proceedings by Summons filed on 30 November 2018 seeking an order under s 66G of the Conveyancing Act 1919 (NSW) appointing a trustee (and then, by amended summons, two trustees) for the sale of the Concord Property and associated orders (the 2018 Proceedings). As Counsel for the First Respondent emphasised in the proceedings below, that application did not relate to any non-performance of Mario’s duties as executor of the Will, the Concord Property already having been transferred to the siblings in equal shares. Thus, no order for the removal of Mario as executor was pressed in the 2018 Proceedings.
The First Respondent accepted in the course of the proceedings below that it would have been “easier and more efficient” for her to compel Mario to transfer the shares in CVE and PNP to her in the 2018 Proceedings, but ultimately, she decided not to do so. The primary judge accepted the First Respondent’s evidence that the reason she chose not to do so was because she was only interested at that time in obtaining her one-third interest in the Concord property: PJ [12].
Following the commencement of proceedings on 5 July 2024, on 29 October 2024, the First Respondent filed a “Points of Claim” claiming the relief set out above under s 175 of the Act.
On 21 November 2024, the Applicants filed Points of Defence (POD) admitting each paragraph of the Points of Claim but raising five defences: (1) a defence under the Limitation Act 1969 (NSW); (2) a defence in respect of Anshun estoppel; (3) a defence of abuse of process; (4) an estoppel by representation defence; and (5) a defence of laches. None of these defences succeeded. For present purposes, it is sufficient to set out the paragraphs of the POD relating to the fourth and fifth defences, noting that the Limitation Act defence was not pressed and that the Anshun and abuse of process defences failed (and there is no appeal made in relation to those failures):
“Estoppel
- On about 21 March 2020, the Plaintiff represented to the Second Defendant and the First Defendant, that the Plaintiff would not take steps to obtain a shareholding in the Third and Fourth Defendant (the Representation).
26. The First and Second Defendant relied upon the Representation of the Plaintiff in their dealings with the Third and Fourth Defendant to their detriment in that they:
c. provided personal guarantees to the lenders of the Third and Fourth Defendant’s for facilities necessary to continue the business of the Third and Fourth Defendant;
d. provided funds from their personal finances and through related entities to service the financial obligations of the Third and Fourth Defendant;
e. expended their time and energy to ensure the business interests of the Third and Fourth Defendant were attended to.
27. The First and Second Defendant would not have taken the steps referred to in paragraph 26 herein either at all or the extent that they did had they known that their shareholding in the Third and Fourth Defendant would have been materially diminished by the Plaintiff obtaining a shareholding by these proceedings or otherwise.
28. At all material times the Plaintiff was aware of the matters pleaded at paragraphs 25-27 herein.
29. In the circumstances, it would be unconscionable to permit the First and Second Defendant to resile from the Representation.
Delay
- In the alternative, the Defendants:
c. Repeat paragraphs [11] to [29] (inclusive) above.
d. Say that the Plaintiff is guilty of undue, prolonged and unexplained delay in bringing this claim.
e. Says that the delay has caused prejudice to the Defendants.
f. Say that in the premises, the proceedings are barred by laches;
g. Alternatively, says that the Court should, in its discretion, decline to grant the Plaintiff the relief sought.”
The First Respondent filed a “Points of Reply” on 13 December 2024 in response to the POD, paragraphs [7](a) and (b) of which raised Mario’s failure properly to administer his late mother’s estate by way of what was essentially an “unclean hands” answer to his invocation of equitable arguments to resist the correction of the companies’ registers.
There was then a directions hearing on 31 March 2025 with a view to allocating a hearing date (the March Directions Hearing). In the course of the March Directions Hearing, the Applicants read the affidavit of their solicitor, Mr Dean Joubert De Villiers, affirmed on 28 March 2025. The purpose of Mr De Villiers’ Affidavit was to secure an extension of time to file the Two Affidavits referred to at [3] above. Relevantly, paragraph [15] of that Affidavit was as follows:
**“**The case has narrowed
[15] Part of why this process took longer than I anticipated is because it became apparent in the conference with counsel on 18 March 2025 that paragraphs 26 and 27 of the Points of Defence are unsupportable and therefore the entire pleading at paragraphs 25 to 29 would fail. The decision to not advance a case in support of paragraphs 25 to 29 was not made lightly and required careful consideration of what evidence could have been adduced. The Defendants’ case is now substantially narrower.” (emphasis added)
“HIS HONOUR: …The position is, in paragraphs 25 to 29 of the points of defence is not pressed.
CHARLTON: That’s right.
HIS HONOUR: I was contemplating making order for amended points of defence, but if that is the only change, I don’t need to do that and I will simply insert paragraph 1A, note that the estoppel defence in paragraphs 25-29 of the defendants points of defence is not pressed.
Order 4, I will add ‘and, if a mediation before a Registrar is sought, approach the Corporations Registrar’ who might send you to someone else, but approach her in the first instance by 4pm on 7 April 2025 for allocation of mediation date.”
“TERMS OF ORDERS:
1A. Note that the estoppel defence in paragraphs 25-29 of the Defendants’ Points of Defence is not pressed.
- The Defendants are granted leave to file the affidavits of Mario Pizzolato dated 28 March 2025 and AntoneIla Pizzolato by 4pm on 31 March 2025.”
“Included in the affidavits of Mario and Antonella was evidence of the following matters:
a) The details of the corporate structure of the various relevant companies;
b) The property development activities of those companies (in particular, a property development at Mascot, Sydney), including the involvement of Mario and Antonella in those matters (and the fact that Vittoria was not involved);
c) The financing arrangements applicable to the companies, over time, including the negotiations which were ongoing at the time of those affidavits; and
d) The financial strictures to which Mario and Antonella were subject by reason of their involvement, including the provision of personal guarantees to various financiers and the consequent inability to carry out their own personal property transactions.”
“a. Attending to the reconciliation of bank statements;
b. Debt collection and account reconciliation;
c. Invoicing;
d. Liaising with the accountants;
e. Procurement of materials for Steel Fabrication Business;
f. accounts payable for all entities;
g. Preparing Business Activity Statements for the Steel Fabrication Business, the Third Defendant and the Fourth Defendant.”
The Applicants further submitted that the impugned evidence in the Two Affidavits indicated that they had actively pursued the development of various properties, through PNP and CVE, at personal cost and risk, including the assumption of personal guarantees if the companies failed to repay loans owed to their lenders.
On 14 May 2025, the First Respondent filed an affidavit sworn that day in reply to the Two Affidavits. Relevantly, at paras [5] and [16], the First Respondent deposed as follows:
[5] “I have read the affidavit of Mario Pizzolato (Mario) affirmed sworn on 28 March 2025 (Mario’s affidavit). I respond to parts of Mario’s affidavit in this affidavit. I have not responded to everything in Mario’s affidavit. I have been informed by my solicitor and verily believe that much of Maria’s affidavit contains inadmissible assertion or is irrelevant, and I have not responded to this. I should not be taken to agree with anything to which I have not directly responded.
…
[16] I have read the affidavit of Antonella Pizzolato (Antonella) affirmed sworn on 28 March 2025 (Antonella’s affidavit). I respond to parts of Antonella’s affidavit in this affidavit. I have not responded to everything in Antonella’s affidavit. I have also been informed by my solicitor and verily believe that much of Antonella’s affidavit contains inadmissible assertion or is irrelevant, and I have not responded to this. I should not be taken to agree with anything to which I have not directly responded.” (Emphasis added).
“ALEXIS: We get that from para 26 our learned friend’s outline which means paras 11 to 14 inclusive of the points of defence are not pressed.
HIS HONOUR: …Yes and I note I don’t think I have an amended points of defence but the estoppel case in paras 25-29 had previously also been affected.
ALEXIS: Yes and I understand your Honour made an order striking out paras 25 to 29 inclusive when the matter was before your Honour for directions on 31 March 2025.
HIS HONOUR: Yes.”
“Vittoria’s delay in bringing these proceedings is a further reason that this Court should refuse to grant relief either by reason of laches or because it is a discretionary reason that this Court would refuse to grant relief pursuant to section 175 of the Act.”
“I will also have some things to say about the effect of the plaintiff’s delay in asserting her claim. In particular, as your Honour saw asserted in that O’Loughlin Westhoff letter, my submission is ultimately that Ms Marques seeks to take on the benefit of the holding of these shares without sharing any of the burdens that have already been shouldered by her siblings and that’s a further--.”
“HIS HONOUR: Mr d’Arville, you may need to go back over the circumstances in which the estoppel case was not pressed and any discussion or pleading of material facts that might have occurred at that time.
D’ARVILLE: I will do that, thank you. Can I put it this way? The fact that the position today is that my clients are subject to particular financial obligations in respect of these companies and that Ms Marques is not is a further discretionary reason that your Honour would not make the orders sought.
HIS HONOUR: I’m not sure that I have any pleading or material facts of those matters and that would be the first step that would be necessary in raising any defence of that kind.
D’ARVILLE: Except that the--
HIS HONOUR: Again, my recollection, and I may be wrong, is that that has been the subject of a prior dialogue.
D’ARVILLE: In respect to the question of matters of discretion as to why your Honour would not make an order under s 175, in my submission, it is not necessary to plead in any further detail than what has been done.
HIS HONOUR: When you say ‘plead in any further detail’, what material facts are pleaded in this respect?
D’ARVILLE: It’s para 30 of the points of defence, and this may be a position where I need to see what has gone before.
HIS HONOUR: Just one moment. Yes.
D’ARVILLE: I don’t understand there to have been any objection to the defence of laches being something that is a matter that is entitled to be raised. That’s all I wish to say by way of opening and I think we can move to the evidence.
HIS HONOUR: Yes, all right, thank you. Yes, Mr Alexis.” (emphasis added)
“Paragraphs 19 through 44 I would tentatively reject so far as their relevance to any claim based on delay is not apparent and so far as there are, as far as I can tell, no pleaded facts to support the relevant allegations...Do you seek to be heard Mr d’Arville?”
“D’ARVILLE: …In my submission the evidence given by both Ms and Mr Pizzolato about the corporate structure of the various businesses and the landholding of those businesses will ultimately be of assistance to your Honour because your Honour will then have before you a description of the position of the different companies in the corporate group and the various financing arrangements entered into by one of the particular companies in respect of which relief is sought. That in turn will be relevant to your Honour in assessing a submission that I will put about the burdens that my client[s] have taken on by reason of their shareholding and which I say will ultimately inform your Honour’s discretion as to whether to grant the relief that the plaintiff seeks.
This is not a means of seeking to revive an estoppel case, because that case is set out in paras 25 to 29, the reason that I submit that the material [in] respect of the company’s businesses and their financing arrangements is relevant is because either pursuant to 30(f) or (g) of the points of claim, it is relevant to an argument about laches or whether the Court should in its discretion decline to grant the plaintiff the relief sought and I could be specific about that your Honour. The position which I will hope to demonstrate in evidence is that the first and second defendant have given personal guarantees to the banks in respect of this business. One of the events of default for the current bank is to the effect that if there’s a change in the ownership of C & V Engineering.
An order by your Honour which alters or has the effect of altering the ownership of that company is a potential event of default subject to the financier’s consent and that’s a matter that I will be ultimately saying is a reason that your Honour would not make the orders sought in addition to obviously the Anshun estoppel.” (emphasis added)
“HIS HONOUR: I maintain the ruling, I reject the paragraphs, I should indicate by reason of rejection that Mr d’Arville has highlighted a submission wholly divorced from the material further facts that there exist guarantees in respect of the relevant properties or companies that the transfer of the shares would give rise to an event of default under those guarantees unless the consent of the bank was obtained and that is a discretionary basis on which not to grant the relief sought and implicitly leave the position such that the share register does not record the true ownership of the shares on the contention that the plaintiff establishes the case that she puts which, at least at the point of the non-transfer of shares appears to be uncontested.
The difficulty with that proposition is, however, self-evident. The proposition that there exist financing arrangement[s] is unpleaded, the terms of the financing arrangements are unpleaded, the event of default is unpleaded, the bank’s likelihood of taking any action in respect of the event of default is unpleaded and the lack of pleading of any of those facts deprives the plaintiff of the opportunity to explore it by evidence. Mr d’Arville puts that he will put a submission in that respect but he is also not entitled to put a submission as to unpleaded facts to advance a defence which is not supported by the facts that have been raised. For those reasons I would at least reject the paragraphs under s 135 of the Evidence Act so far as there seems to me to be extreme prejudice to a plaintiff in putting the plaintiff to meet a defence based on factual propositions of which she has had no notice.”
Thus, his Honour formally ruled on the objections in a manner consistent with his preliminary ruling.
In relation to Mario’s affidavit dated 28 March 2025, his Honour relevantly rejected, on the grounds of relevance, paras [3]-[4], [12]-[16], [28]-[30], and [78]-[80], as well as paras [32]-[73] on the grounds of relevance and under s 135 of the Evidence Act:
“HIS HONOUR: Again, I’ll indicate tentative rulings. I will tentatively reject paras 3 and 4 for relevance. No doubt there may or may not be a trust arrangement in respect of the companies, but it is not apparent that that trust arrangement has any relevance to the level that I am asked to make, and if it does, that relevance is not identified by any pleading of material facts or any defence by reference to the existence of the trust…
…I reject paras 12 and 13 for relevance on the same basis as I reject paras 3 and 4. I reject paras 14 on the same basis. I reject paras 15 and 16 so far as it is not apparent that the companies in issue have any relevance. I note that para 17 is not read.
In para 18 I reject the last sentence for relevance and under s 135 of the Evidence Act where consistent with similar evidence by Ms Pizzolato, the structure of the sentence appears to be to hypothesise a statement and deny the statement as distinct from giving evidence of relevant conversations. I will admit para 20, so far as it appears to be responsive to a paragraph of Ms Marques’ affidavit that has been read. I will reject para 21 so far as the witness’ view of these matters is not relevant. I reject para 23 on the basis that the witness’ understanding of these matters is again not a relevant matter.
I reject the words in para 24(a) starting, ‘I recall that I was surprised’ where the witness’ state of mind at that point of time, or his surprise or otherwise is not a relevant matter. I note that para 24(g) is not read. I will admit the words objected to in para 27 so far as a delay case is put. I will reject paras 28 to 30 for lack of relevance. I will reject paras 32 through 73 for relevant and under s 135 of the Evidence Act consistent with my corresponding ruling in respect of the evidence of Ms Pizzolato. Paragraph 78 through 80 I will also reject for lack of relevance so far as no defence is raised by reference to these matters. Mr d’Arville?”
Mr d’Arville did not raise any argument in relation the non-admission of those paragraphs. In the Applicants’ written submissions in this Court, they cited the primary judge’s earlier rejection of Antonella’s evidence as the reason he did not do so.
At PJ [14]-[15], his Honour referred to his rejection of the impugned evidence in the Two Affidavits as follows:
“The Defendants initially read Antonella’s affidavit dated 28 March 2025, although significant parts of that affidavit related to their abandoned estoppel defence and to unpleaded factual allegations and were not admitted on that basis. Antonella was initially required for cross-examination but the Defendants withdrew Antonella’s affidavit with Vittoria’s consent, after parts of it were not admitted, and she was not cross examined on that basis.
The Defendants also read Mario’s affidavit dated 28 March 2025, although significant parts of that affidavit also related to their abandoned estoppel defence and to unpleaded factual allegations and were not admitted on that basis. Mario is presently in ill-health and, by agreement, was not required for cross-examination. Mario’s evidence seeks to impugn Vittoria’s relationship with her mother and father; however, nothing turns on that evidence where Carmela left a third interest in her estate to Vittoria, and Mario neither denies nor seeks to justify his failure to perform his duties as executor in respect of the distribution of Vittoria’s share in the estate to her.”
“I recognise the long delay in the commencement of these proceedings, from the date of the last unperformed commitment by Mario to transfer the shares to Vittoria, on 4 July 2018, part of which was occupied by the 2018 Proceedings and the resolution of the position as to the Concord property by April 2020. Importantly, it has not been established that Mario or Antonella have suffered the asserted detriment arising from ‘burdens’ in running the companies or the provision of guarantees to financiers or in respect of the operation of the companies. The Defendants did not here seek to identify any material facts relating to any detriment that they suffered by delay in their POD, either at the time that it was filed, or by any attempt to amend the POD after I declined to admit evidence that had no apparent relevance other than, possibly, to establishing an unpleaded case of uncertain character.”
Later in that same paragraph, the primary judge went on to reiterate the reasons for his rejection of the impugned evidence as follows:
“I recognise that a Points of Defence, like an Amended Commercial List Cross-Claim Statement, is not, strictly, a pleading: Icon Co (NSW) Pty Ltd v Owners — Strata Plan No 97315 [2022] NSWCA 114 at [12]. However, it performs the same functions as a pleading in allowing procedural fairness to the other party to the proceedings and identifying the issues to be decided by the Court: Gunns Ltd v Marr [2005] VSC 251 at [57]; Young v Holmes [2013] NSWSC 580 at [82]; Re Graziers Pastoral Pty Ltd; Re Windsor Livestock Holdings Pty Ltd; Re Windsor Livestock Pty Ltd [2021] NSWSC 1680 at [51]. The Defendants’ failure to identify the factual basis of any such detriment was significant here, both to the admission of evidence and to the ultimate outcome, because it would have deprived Vittoria of procedural fairness and did deprive the Court of identification of what it had to decide, by leaving both to guess the material facts on which the Defendants might rely to establish any detriment arising from delay from their affidavit evidence.”
“1 The primary judge erred in not admitting the following evidence on the basis that the evidence was not relevant to any pleaded issue (as referred to at J[65], J[72]), in circumstances where the defences of delay and laches were identified in paragraph 30 of the Points of Defence, and the factual basis of those defences were identified by the repetition, in sub-paragraph 30(c) of paragraphs 26-27 of the Points of Defence:
(a) Paragraphs 19-44 of the affidavit of Antonella Pizzolato affirmed 28 March 2025; and
(b) Paragraphs 3-4, 12-16, 28-30, 32-73 and 78-80 of the affidavit of Mario Pizzolato affirmed 28 March 2025.
2 Had the evidence referred to in Ground 1 been admitted by the primary judge, that would have demonstrated matters of prejudice arising by reason of the Plaintiff’s delay which should have led to the primary judge coming to a different conclusion to that at J[71]-J[72] such that:
(a) the admission of that evidence would have affected the final result; and
(b) the improper rejection of that evidence occasioned a substantial wrong or miscarriage, within the meaning of UCPR 51.53.”
The contest between the parties centred around the first proposed ground of appeal, namely whether the primary judge erred in not admitting the impugned evidence in the Two Affidavits.
The Applicants founded their argument principally on POD [30] which incorporated, in [30(c)], a reference to [11]-[29] of the POD. The relevant parts of those paragraphs had already been abandoned. In particular, [25]-[29] which have been set out at [23] above were the subject of Mr De Villiers’ unqualified statement in his Affidavit of 28 March 2025, namely that “paragraphs 26 and 27 of the Points of Defence are unsupportable and therefore the entire pleading at paragraphs 25 to 29 would fail”: see [25] above. The Applicants relied especially on POD [26] and contended that, although abandoned for the purposes of the estoppel defence, that paragraph remained of continuing vitality for the purposes of the laches defence on the basis that it had been incorporated by reference.
That was plainly not the view taken by the learned primary judge, and his Honour was correct in his assessment of the situation. There was nothing hedged or qualified about Mr De Villiers’ evidence. If what was put in POD [26] (which was what the impugned evidence purportedly went to) was unsupportable, it must have also been unsupportable for the purposes of the laches defence. Following the abandonment of the estoppel defence and those paragraphs of the POD, it was reasonable for the First Respondent and the primary judge to proceed on the basis that, to the extent that the laches defence was in some way connected with what had been pleaded in [26] and, in particular, the provision by the Applicants of personal guarantees to the lenders for facilities necessary to continue the business of the companies and of funds for the same purposes, reliance was no longer put on those matters.
Even if what was abandoned was the plea of reliance embedded in POD [26], it was not explained how entry into financial guarantees per se relevantly constituted “prejudice” for the purposes of the laches defence, and the ever-candid Mr Giles was unable to point to an identification or particularisation of the relevant prejudice in any part of the POD.
At first instance, Mr d’Arville recognised the dilemma he was under after the primary judge reminded him of the procedural history of the case: see [36] above. He endeavoured (in the passage reproduced at [38] above) to characterise the prejudice germane to the laches case as bound up in the possibility that “[a]n order by your Honour which alters or has the effect of altering the ownership of that company is a potential event of default subject to the financier’s consent” (emphasis added). He continued that “that’s a matter that I will be ultimately saying is a reason that your Honour would not make the orders sought obviously the estoppel” (emphasis added). As the learned judge said in his ruling in the passage set out at [39 ] above, which was then also applied to the relevant parts of Mario’s affidavit in the ruling set out at [41] above, that identification of prejudice was not pleaded and it gave rise to prejudice to the First Respondent of a kind which engaged and resulted in the exclusion of the evidence pursuant to s 135 of the .
“The availability of a defence of laches and what will suffice to make it good depends upon the nature of the claim. Laches is an equitable defence and is not available in answer to a legal claim. It has been said that, even in the case of equitable claims, ‘laches ... finds a Bluebeard’s Chamber ... in a claim (by a beneficiary) against an express trustee for recovery of trust property’ (see Hanbury, Modern Equity, 6th ed. (1952), at p 349 and, less colourfully, per Jessel M.R., Browne v. Radford (1874) WN 124, who ‘knew of no case where acquiescence had been held to be a bar to an express trust’). As Professor Hanbury recognized, however, that broad statement requires qualification. The qualification is that ‘the doctrine ... that where there is an express trust lapse of time is to be entirely disregarded’ does not apply to a case in which there has been ‘gross laches’ (see per Lord Campbell LC., Bright v. Legerton [1861] EngR 144; (1861) 2 De G F & J. 606, at p 616; [1861] EngR 144; (45 ER 755, at p 759) and, to the same effect, per Lord Coleridge L.C.J., Sir James Hannen P. and Baggallay L.J., In re Cross; Harston v. Tenison (1882) 20 ChD 109, at p 121 and per Dixon J., Hourigan v. Trustees Executors and Agency Co. Ltd. [1934] HCA 25; (1934) 51 CLR 619, at p 650). One searches in vain in the judgments in the above-mentioned cases (and, for that matter, elsewhere) for any satisfactory comprehensive description of the combinations of circumstances which will suffice to attract the label ‘gross’ for the purposes of that qualification. That is not surprising since any attempt to specify exhaustively those combinations of circumstances would be likely to introduce an inappropriately arbitrary and technical element into an area of equity doctrine which has traditionally been kept free of arbitrary and technical constraints. On balance, the preferable approach is to treat the phrase ‘gross laches’ as an intentionally imprecise one which involves not merely considerations of the period of the relevant delay but which invokes the traditional notions of equity and good conscience which are the general determinants of whether a plaintiff should be refused relief by reason of laches in the circumstances of a particular case. On that approach, the phrase refers to circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party. So understood, the use of the phrase ‘gross laches’ does little to aid in the identification of particular circumstances in which a defence of laches will preclude relief being granted to a beneficiary in an action for the enforcement of an express trust. The ultimate test effectively remains that enunciated by Lord Selborne L.C. (not, as is often said, Sir Barnes Peacock (see Errata)), speaking for the Privy Council, in (1874) 5 PC 221, at pp 239-240, namely, whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’ (see (1878) 3 App Cas 1218, at p 1279, and also, per Rich J., , at pp 629-630).
Ordinarily, it is difficult to envisage circumstances, falling short of waiver, release, election or estoppel, in which the laches of a beneficiary would produce a situation in which it was inequitable and unreasonable to grant relief in proceedings for the enforcement of an express trust in relation to trust property which remained in the possession of the trustee (or his personal representative). There are, however, at least two categories of case where that is not so. The first is where there is or has been dispute or mistake about the existence of the trust or the identity or extent of the trust property. The second category is where prejudice to third parties, such as other beneficiaries, is involved. In the first category of case, unreasonable delay in instituting proceedings to enforce the claim may of itself give rise to the serious and unfair prejudice necessary to constitute ‘gross laches’ in that it may bring about a situation in which the means of resisting the claim, if it be unfounded, have perished (see, e.g., Attorney-General v. Fishmongers’ Company [1841] EngR 204; (1841) 5 My & Cr 16, at pp 17-18; [1841] EngR 204; (41 ER 278, at p 278); Brunyate, op. cit., p 234). In determining what constitutes ‘unreasonable delay’ regard must be had to all the circumstances, including the nature of the claim and the conduct of the parties (cf. Whereat v. Duff (1972) 2 NSWLR 147, at pp 180-181). It may well be that the modern availability of proceedings for declaratory relief to negate a claim by a beneficiary makes it unlikely that such serious and unfair prejudice would be found to exist in a case where the defendant had been aware of the existence of such a claim at relevant times.”
Two key observations may be derived from this passage. First, Mario, as executor of his late mother’s estate, was a trustee of the property intended to be transferred to the First Respondent under the Will, and a trustee within the meaning of the Trustee Act 1925 (NSW): see also JD Heydon and MJ Leeming, Jacobs Law of Trusts in Australia (8th ed., 2016, LexisNexis Butterworths) at 2.40ff. That results in at least Mario’s reliance on the doctrine of laches as facing a particularly high hurdle which the cases cited in Orr have indicated require a demonstration of “gross” delay. Allied to this, the invocation of “traditional notions of equity and good conscience” focuses attention on Mario’s failure to discharge his obligations as executor of his mother’s estate and whether he proffered any explanation to the Court for his failure to do so. He did not offer such an explanation (other than in the most generalised assertion that he did not believe that the Will reflected the beliefs of his mother), and Mr Giles candidly accepted that his failure to perform his duty as executor entailed an “egregious” breach of duty. Second, as Deane J observed, “it is difficult to envisage circumstances, falling short of waiver, release, election or estoppel, in which the laches of a beneficiary would produce a situation in which it was inequitable and unreasonable to grant relief”. Neither of the two exceptions noted by his Honour in Orr was suggested to be applicable in the present case, and the estoppel case was abandoned.
The Applicants placed some reliance on Macquarie Units Pty Ltd v Sunchen Pty Ltd [2023] NSWCA 116 (Macquarie Units) in support of how they characterised “prejudice” arising from delay in the context of an application for the rectification of the share register, namely the acquisition of a business and the development of real property. At [101] of Macquarie Units, Meagher JA observed:
“The length of the delay on the part of the appellants was four years. During that period, Mr Sun and Sunchen oversaw the operation of the three related Cairns businesses. Those businesses carried the risk of profit or loss, and whilst the evidence does not suggest that there were any significant losses, Mr Sun and Sunchen took that risk on the understanding that they were the sole owner of SGA. Mr Sun*’*s evidence was that during the period of four years he acted on the basis that Mr Nassif and MU were not entitled to make, and were not pursuing, any claim to an interest in the share capital of SGA; as was confirmed by Mr Nassif’s conduct from at least March 2015 (J[175]).” (emphasis added)
See also at [102] where reference was made to “Mr Sun’s evidence was that had he been aware of any claim of MU or Mr Nassif to an interest in the shares, he would not have acquired the Mission Beach property in the name of SGA and would not have caused Sunchen to make loans to fund the holding and development of that property.”
There was no evidence in the present case (including in the impugned evidence) that the Applicants only sought to develop the property and gave the financial guarantees on the basis that the First Respondent abandoned any claim to her entitlement under the Will. Indeed, much of the relevant development activity and financing had occurred in the period during which the First Respondent was actively seeking performance by Mario of his obligations as executor. Nor was this a case, like Macquarie Units, where particular property was acquired to undertake commercial developments after the failure to take any active litigious step; rather, the property upon which the relevant developments were being undertaken by the Applicants in the present case was property owned by one of the two companies at the time of their mother’s death, together with an adjoining property that had been acquired by the Applicants, through a further company, also prior to their mother’s death.
Further, their attempt to develop the adjoining properties may or may not ultimately be a source of benefit or prejudice to the Applicants. That will no doubt be a function of many factors but there was no asserted correlation between any such potential prejudice and the delay in the First Respondent seeking to correct the register of the two companies. Further, the Applicants’ case appeared to proceed on the basis that, had the First Respondent been a shareholder, she would have been required to participate in the development of the properties. It was not explained what the source of any such obligation was so as to sustain any case of prejudice.
The Applicants have failed to establish the existence of any “reasonably clear injustice going beyond something that is merely arguable”, and that which was argued on the application for leave to appeal was, on a proper understanding of the doctrine of laches and in light of the abandonment of any case based upon estoppel, at best only barely arguable.
The First Respondent should never have been required to bring proceedings. The estoppel case had to be abandoned because, notwithstanding what had been put in the POD, the position was ultimately responsibly taken that the alleged detrimental reliance essential to the defence could not be made out. There was no evidence in the impugned evidence or otherwise that the Applicants would not have entered into the financial guarantees they did had they known the First Respondent would bring proceedings. Even on the revamped case sought to be agitated at first instance, namely that the Applicants were prejudiced by the risk that the financier may terminate the loan facility because of some change in ownership (which was entirely speculative), that case was never pleaded, as the primary judge pointed out.
In my opinion, the primary judge was correct, for the reasons he gave, in rejecting the impugned evidence. The application for leave to appeal should be refused with costs.
Pizzolato
Marques [2026] NSWCA 44
(2013) 82 NSWLR 268
(1989) 167 CLR 316
(2017) 95 NSWLR 597
(1934) 51 CLR 619
(1972) 2 NSWLR 147
Application for leave to appeal refused with costs.
The 2018 Proceedings led to consent orders being issued by Darke J on 5 September 2019 on terms that the Applicants would purchase the First Respondent’s interest in the Concord property under a specified mechanism. On 21 April 2020, the First Respondent was paid $725,000 in settlement of her interest in the Concord Property.
By way of a letter sent on 16 June 2020, the First Respondent’s solicitors followed Mario’s solicitors up as to the fact that the shares in CVE had not been transferred to the First Respondent (although they did not refer to the position in respect of PNP). Two years later, by a letter dated 28 June 2022, the First Respondent’s solicitors again followed up, this time in respect of the shares in both CVE and PNP. In June 2023, the First Respondent lodged caveats over several properties on the asserted basis that her shares in the companies gave rise to interests in land. Those caveats were subsequently withdrawn.
By letter dated 25 June 2023, the First Respondent’s (new) solicitors wrote to Mario demanding the transfer of the shares in CVE and PNP within 14 days, and threatened the commencement of proceedings. Following a further letter from Mario’s solicitors on 14 September 2023 and a reply from the First Respondent’s solicitors on 13 November 2023, the proceedings were commenced, after a further delay, on 5 July 2024, seeking correction of the registers of the Second and Third Respondents.
The primary judge ordered the correction of the share registers of CVE and PNP to indicate that the First Respondent and the Applicants held the shares previously held by Carmela (200 in CVE and two in PNP) as tenants in common in equal shares.
In order to understand the context of the Applicants’ argument, further attention needs to be given to the procedural background leading to the hearing.
During the hearing of the application for leave to appeal, Mr Giles did not seek to rely upon the formulation of prejudice articulated by Mr d’Arville at first instance but, rather, on the fact, simpliciter, that the Applicants had caused the companies to enter into financing arrangements for the purpose of development of land and in respect of which they had provided guarantees, whereas the First Respondent had not done so. Mr Giles accepted that there was no basis in the evidence for submitting that this would not have been done but for the delay in bringing the proceedings, or that it was done in the belief that the Respondent had abandoned her claim. Indeed, although there was delay in bringing the claim that was eventually brought, the First Respondent, through correspondence in 2018, 2020, 2022 and 2023, had continued to assert her entitlement to the effectuation of her mother’s testamentary wishes: see [13], [18], and [19] above.
Mr Giles did not put the asserted prejudice to the Applicants as involving any detrimental reliance upon anything done or not done by the First Respondent (including delay in commencing proceedings) but merely as steps which had been taken during the period of delay. There was no nexus between these steps and any delay by the First Respondent notwithstanding that POD [30(e)] recognised the need in the circumstances of this case for some causal nexus between the delay and prejudice: “says that the delay has caused prejudice to the Defendants”.
In what is probably the leading authority on the question of delay, Orr v Ford (1989) 167 CLR 316 at 340-342; [1989] HCA 4 (Orr), Deane J (with whom Mason CJ agreed) observed that:
LEEMING JA: I agree with the Chief Justice that leave to appeal should be refused, and I agree with his reasons. The following is added by way of emphasis rather than qualification.
The evidence to which objection was taken was inadmissible unless it was relevant: Evidence Act 1995 (NSW), s 56. The evidence was said to be relevant as bearing upon the issue arising from paragraph 30(e) of the points of defence, which was that the plaintiff’s delay had caused prejudice to the defendants. No prejudice was particularised. True it is that paragraph 30 commenced with a repetition of paragraphs 11-29 of the points of defence. But paragraphs 25-29 had been formally abandoned four months earlier, accompanied by a solicitor’s affidavit saying that “paragraphs 26 and 27 of the Points of Defence are unsupportable”. As Mr Giles SC noted, when that occurred, his predecessor had expressly confirmed that “[w]hat remains in the case … is [a] prejudice point arising from delay”. So much may be acknowledged. However, the alleged prejudice was unparticularised. All that was clear was that the defendants had formally disavowed reliance on the allegations at paragraphs 26 and 27 as unsupportable. There was nothing subsequently to qualify the solicitor’s unqualified disavowal, on the strength of which the defendants had obtained a further indulgence as to the time for the service of their evidence, until an attempt was made to resurrect the matters at the commencement of the trial. In those circumstances, the primary judge was correct to hold that the paragraphs in the affidavits to which objection was taken were matters outside the issues raised by the points of claim and points of defence, and therefore irrelevant and inadmissible.
A further point was raised at the hearing at first instance, namely, that a change in ownership of one of the companies might be an event of default. That was rejected on the basis of s 135 of the Evidence Act, there having been no indication hitherto that any such point might be advanced, and that aspect of the case was not (for good reason) repeated in this Court.
Parts of the hearing in this Court traversed broader matters, as the Chief Justice has explained. The wider debate only serves to confirm the conclusion that the decision of the primary judge was correct.
McHUGH JA: I agree for the reasons given by the Chief Justice that leave to appeal should be refused with costs. I also agree with the additional observations of Leeming JA.