Samawi v Faraone [2025] NSWSC 970 | Case summary | Zoe

NSWNSWSC

Samawi v Faraone

[2025] NSWSC 970

Supreme Court of NSW|2025-08-28|Before: Leeming JA

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-08-28

Before

Leeming JA

Catchwords

EQUITY — proprietary estoppel — common intention constructive
trust — land in name of daughter — whether father
and daughter
proceeded on basis that he would be responsible for property expenses and would

Source

Original judgment source is linked above.

Catchwords

EQUITY — proprietary estoppel — common intention constructivetrust — land in name of daughter — whether fatherand daughterproceeded on basis that he would be responsible for property expenses and wouldretain beneficial ownership —nature of father’s contribution to thepurchase price — whether daughter entitled to indemnity for expenses paidby her

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Samawi v Faraone [2025] NSWSC 970

Hearing dates: 6, 7 August 2025

Decision date: 28 August 2025

Jurisdiction: Equity - Real Property List

Before: Leeming JA

Decision: 1. The 6 page translations of emails at pp 539-547 of Exhibit A, supplied to my Associate by email dated 8 August 2025, will be incorporated within Exhibit A.
2. Declare that the property at 35 xxxxx Street, Stanhope Gardens in the State of New South Wales, being the land contained in folio identifier 101/270391, is held by the plaintiff on trust for the first defendant.
3. Paragraphs 1-3 of the Summons filed 28 November 2024 dismissed.
4. Paragraphs 2-13 of the Amended First Cross-Summons filed 6 August 2025 dismissed.
5. The parties to supply by email to my Associate agreed orders, or in default of agreement, the orders each seeks and submissions in support of such orders by 4pm Tuesday 9 September 2025. 6. The matter to be listed before me for directions at 9.30am on Wednesday 10 September 2025.

I do not understand anything in this section to be controversial. Mr Giuseppe Faraone was born in Italy in 1959. He married Ms Claudia Faraone in 1983. The couple had six children: Fabiola (born 1985), Raffaella (born 1986), Serena (born 1989), Debora (born 1994), Sonia (born 1997), and Luca (born 2006). Claudia and her five daughters migrated to Australia in 1997, with Giuseppe coming later and continuing to reside in Italy during the northern hemisphere summer holidays. Fabiola married Mr Christopher Bonomo in 2006. Raffaella married Mr Mark Samawi in 2015 (according to the marriage certificate). Without intending disrespect or undue informality, I will follow the course employed by counsel and refer to family members by their given names.
Giuseppe said that his wife and daughters moved to Australia in 1997 while he remained in Italy, working as a high school teacher and in a family business (a sports bar) which mainly operated in the Italian summer holidays. Between 1997 and 2008 he travelled between Italy and Australia to manage the sports bar. The family rented in Dean Park and later (from about 2000) in Woodcroft.
When the daughters began working, they paid board of around $150 per week. Giuseppe said that in around 2006, each of Fabiola, Raffaella and Serena were paying $150 each week. Fabiola said that her parents took half her wages as board, until she began to work, unpaid, in a family business (although Giuseppe says she was paid), and that when Christopher moved into Woodcroft, he paid $150 per week board on her behalf. Raffaella said she worked as a waitress at a restaurant and the Blacktown Workers Club from 2002 to early 2006, and claimed that she paid $200 per week board. Serena said she paid board of about $150 per week in 2006.
To anticipate what follows, when in 2010 No 35 became owned by Raffaella, some family members (including Claudia) paid rent to her, including pursuant to formal written residential tenancy agreements. Raffaella says that this reflected the fact that she was the owner of the property. Giuseppe and Claudia say that this was a device to obtain the benefit of tax deductions, at least for periods when Raffaella was not living at No 35, and did not depart from the common understanding that the house was Giuseppe’s, with the payments of rent being used to service the mortgage and pay other property expenses.
Giuseppe and Claudia separated in 2005 and were divorced in 2006. Giuseppe said that “[a]lthough we divorced and I rented a separate place in the Central Coast, we were amicable and I still spent a lot of time around the family and in the family home and continued supporting them financially”. Raffaella did not dispute that in terms, but said that Giuseppe would mostly be in Italy between May and September, was not regularly at No 35, and “would come and go as he pleased”. Serena said “Dad was still around the family home regularly and was welcome around the house”.
Raffaella, Fabiola and their husbands Mark and Christopher gave evidence in the plaintiff’s case and were cross-examined. Giuseppe, Claudia and Serena gave evidence in the defendants’ case and were cross-examined.
As is obvious from the relationship between the parties and the fact that Fabiola gave evidence in Raffaella’s case, while Serena gave contradicting evidence in her parents’ case, this is a family which is deeply divided. Although Giuseppe separated from Claudia in around 2006, the pair are now reconciled, at least for the purposes of this litigation where they made common cause. Both live in No 35. There was a large falling out between Giuseppe and Raffaella in 2012, based upon her choice of boyfriend, and later husband, Mark. As will be seen below, the emails exchanged at that time, when Raffaella left home, were central to the litigation. In litigation in which a great deal was in issue, there was no dispute about this. Giuseppe gave evidence in his affidavit that:

Mark also put on an affidavit responding to Giuseppe’s evidence. He did not respond to paragraph 115. He said that the apprehended violence order was not taken out by Giuseppe, and that Raffaella did not reside at No 35 during his separations from her, but would stay with an uncle at Colyton. He said “I preferred to avoid Giuseppe because he has never liked me due to my Arab ethnicity”.
Records of the Local Court were tendered which show a series of applications made by the police in separate proceedings brought in 2015, 2017, 2018, 2020 and 2024 at least some of which appear to involve apprehended violence orders against a person of his name in various courts in western Sydney (Ex 1 p 107). Mark acknowledged that the police had taken over a prosecution after an original complaint by Raffaella in 2018, although he said that subsequently she did not wish to press charges (T 71). A little strangely, Mark was unable to recall the circumstances concerning charges also brought against a person of his name in 2020, although he did not deny that he was the man accused of domestic violence offences (T 73).
It is reasonable to assume that Mark and Raffaella may attribute to Giuseppe the fact that Mark was imprisoned.
Further, this litigation is not the first time Raffaella has sought to exclude her parents from No 35. She commenced proceedings in NCAT, where she was unsuccessful, on the bases that by 2023 there was no residential tenancy agreement and there were defects concerning the termination notice. The reasons of the tribunal constituted by a Senior Member were in evidence (CB 1076-1082). No one submitted that the outcome of that litigation gave rise to any issue estoppel or res judicata relevant to the present proceedings. My present view is that s 91 of the Evidence Act 1995 (NSW) does not apply to the reasons (because the decision of the Consumer and Commercial Division was one following a hearing at which the rules of evidence did not apply, with the consequence that NCAT was, for that purpose, not an “Australian court”; cf the disciplinary proceedings heard and determined in NCAT considered in Quach v MLC Ltd (No 6) [2021] FCA 271 at [8]-[10]). However, I heard no submissions on this, and I have not relied on the reasons.
There were many paragraphs of Serena’s affidavit to which Raffaella made a response, but she did not respond to the final two paragraphs of the affidavit, nor was there cross-examination on them:

It is as well to explain the legal and practical aspects of the deposits and withdrawals of “cash”, the borrowings of money to acquire property and its repayment by electronic “transfer”.
There is no doubt that, speaking strictly, Raffaella paid the totality of the purchase price of No 35. She did so with funds borrowed by her, against the security of a registered mortgage in favour of CBA over No 35. Even if (as Giuseppe contends) he made all of the mortgage repayments in point of fact, that does not prevent Raffaella being the sole purchaser. A person who acquires property with borrowed funds is nonetheless the purchaser: Calverley v Green (1984) 155 CLR 242 at 257; [1984] HCA 81. Nor is that affected even if another person is solely responsible for servicing the mortgage debt; as Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 illustrates, where the man and woman jointly borrowed to fund the purchase price, and the man alone made mortgage repayments, the money provided by the woman as joint borrower represented a contribution by her to the purchase price.
There is also no doubt that Raffaella, once again speaking strictly, paid every mortgage repayment. That is because CBA (and later Macquarie Bank) debited “funds” in Raffaella’s 920 account for the purpose of making regular weekly or monthly payments in reduction of the loan account. On no occasion were those debits anything other than an adjustment of the running balances in Raffaella’s accounts: the 920 account and the account reflecting the debt secured by the mortgage over No 35. It is necessary and appropriate to analyse the position not at the artificially strict legal level summarised above, but at the level of practical reality (which, in strict point of law, involves a deal of tracing in equity through a mixed account). Giuseppe’s claim was that he made money available into Raffaella’s 920 account in order for there to be funds which could meet a debit from that account to credit Raffaella’s debt secured by the mortgage. Giuseppe claimed that he made those deposits, sometimes by electronic funds transferred from his own account with Westpac, and sometimes by cash deposits involving a deposit of bank notes at a CBA branch (mostly Rouse Hill or Blacktown) to the credit of Raffaella’s account, and that claim carried with it the proposition that the debit from Raffaella’s account a few days later in reduction of her debt secured by the mortgage is to be regarded as a payment by him. I shall refer below to the electronic transfer from an account controlled by Giuseppe on 24 January 2012 of $4,455, representing precisely four of what were then the automatic weekly mortgage payments of $1,113.75, following Raffaella’s advice to him that “[y]our repayments are $4,455 and are due the 1st of every month”.
None of the parties or witnesses had any difficulty in understanding the practical reality of what has been (somewhat laboriously) summarised above. And this is a case where, consistently with the reasoning in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner, the availability and appropriateness of relief in equity by means of a constructive trust turns on the practical reality of payments and their traceable proceeds. Another, simpler, way of making the same point is to observe that the legal truth that strictly speaking Raffaella paid for the entirety of the purchaser price (from funds borrowed by her) and the entirety of the repayments of that debt (from debits from her 920 account) is no answer to the claim that she holds No 35 on constructive trust by reason of an assumption shared by her and Giuseppe that she would be a trustee and he would make it possible for her to pay the purchase price and service the mortgage debt.

Giuseppe said that he gave Christopher $35,000 to $40,000 towards the deposit for No 35, which derived from the sale of a takeaway shop owned by Giuseppe for $80,000, the proceeds of which going into Fabiola’s bank account as Giuseppe was overseas Giuseppe claimed that Fabiola owed additional amounts that she had kept from this sale in the form of $8,757.78, which Fabiola signed. As will be seen, there was a deposit of $35,000 in Fabiola’s account at this time, however, Fabiola contended that it was her money, deriving from the sale of a business which she owned (see paragraph 38 of her affidavit and T 59).
However, it was common ground that Giuseppe contributed a payment of $280,000 to the settlement of the purchase of No 35. That sum derived from the proceeds of sale of a property in Italy which had long been in his family. His evidence was that he “did not gift the property to Christopher and Fabiola” as this was “about seventy percent (70%) of [his] net worth at that time” and he “could not afford to give $280,000 away to one child in [his] circumstances”. Fabiola and Christopher disputed this. They said that the money was a gift, and that that is borne out by a letter signed by Giuseppe saying that it was a gift.
Giuseppe also claims to have contributed $50,000 to Christopher and Fabiola’s wedding, as well as their honeymoon to the Canary Islands and furniture for the Premises. This is controversial, but peripheral to the main issues.
Giuseppe also said that he paid for Council rates, water rates, property expenses, and loan repayments. Raffaella acknowledged that he made some payments, but that for the most part she paid the ongoing expenses as well as the loan repayments.
Giuseppe also said that he performed regular work on the property, including, inter alia, concreting, changing doors, blinds, tiles, and retaining walls. He also claimed to have spent $20,000 on replacing all doors to solid timber doors, $10,000 cedar blinds, $2,200 for bricks, $1,500 for plumbing materials and drainage work, and $5,000 on flyscreens and sliding doors. Giuseppe has retained the original records of all Council and development records. For her part, Raffaella contended that while Giuseppe was involved in dealing with tradesmen, especially after he returned to live at the property, he did not perform construction work, and he paid for none of it.
The house at No 35 was purchased in Christopher’s name in 2006. The entire family (except Giuseppe) then moved into No 35. One year later, Fabiola and Christopher bought the property next door, No 37. They moved out of No 35 and into No 37 once it was built. Giuseppe claimed to have “paid the holding deposit for that property of about $2,000”. During Fabiola’s second pregnancy, Fabiola and Christopher moved back into No 35 (and recommenced paying board) before then returning to No 37. Giuseppe claimed that Fabiola and Christopher rented out No 37 during this period, and paid board of $450 total per week. In 2010, Claudia stated that all her children except Fabiola were living in No 35.
Claudia recalled that Fabiola said she no longer wanted the house in her name. That led, according to Claudia, to a conversation between Serena, Raffaella and their parents concerning who would take over No 35. Giuseppe said that Christopher and Fabiola were also present. Claudia’s evidence was that Raffaella said, “I’ll take the loan on” before Giuseppe said, “Ok, I’ll keep paying everything”. Claudia’s understanding was that Giuseppe would keep paying for everything and it would go into Raffaella’s name to help her buy a house. It was then transferred from Christopher and Fabiola to Raffaella’s name, with Giuseppe signing as a witness to the transfer.
Raffaella said that she did not believe that Giuseppe owned No 35, and that she had offered to buy No 35 as an investment, knowing that Fabiola and Christopher could not service the mortgage along with No 37, and in order to provide a home for her mother and her younger siblings.
The memorandum of transfer of No 35 from Christopher and Fabiola to Raffaella, dated 2 November 2010, acknowledged receipt of the consideration of $385,000. Giuseppe signed the transfer as a witness.
There is a dispute concerning a payment of $40,000 made at about this time. According to Claudia, Raffaella approached her parents complaining that Fabiola had taken out a loan in this amount against the property to finance work on her own house. Claudia said that a dispute arose between the sisters and that ultimately Raffaella paid the $40,000, which Claudia asserted was owed to Giuseppe. Giuseppe said that during the transfer process, Fabiola enquired whether Raffaella could borrow $40,000 against the loan for No 35, for renovations at No 37. The amount was subsequently repaid. On the other hand, Fabiola, Christopher and Raffaella said that the amount was a break cost for the loan.
Between 2010 and 2022, Raffaella entered into residential tenancy agreements with members of the family in respect of No 35. Giuseppe contended that this was done on the advice of an accountant, who advised Raffaella that she could reduce her tax liabilities by declaring that she was leasing the property, notwithstanding that she was in fact residing in the property. Raffaella contends that her accountant had been “negatively gearing my assets negligently and without my knowledge”. She said that this led to a tax debt owed by her of approximately $65,000, which amount was “reduced on account of [the accountant’s] negligence”. A document lodged with the Administrative Appeals Tribunal in proceedings commenced in 2015 records an agreement that Raffaella’s tax liability be amended by reducing the penalties for the financial years ended 30 June 2012 and 2013 to $8,267.64 and $6,433.56, and a note stated that Raffaella accepted the substantive tax liability for those two income years (CB 587). No other documents filed in the Tribunal or relating to the reassessment of Raffaella’s tax liability were in evidence.
Claudia said that she had many conversations with Raffaella when she said words to the effect “Mum I will never kick you out of here, I know this is dad’s house”.
Raffaella married Mark in 2015. The couple had been living at No 35, but in around 2012 moved into a house in Baulkham Hills and later Plumpton. Claudia said that various occasions of domestic violence caused Raffaella to return periodically to No 35.
Giuseppe moved into No 35 full time in 2019.
In 2022, when Claudia, Luca and Giuseppe were living in No 35, the other members of the family having moved out with their partners, Raffaella, Mark and their son Isaac moved in. Raffaella said that prior to moving in, she had a conversation with her parents expressing her desire to move into the property. She says that they agreed that Giuseppe and Claudia would continue to live there until they found a new place to live, and that this was on the condition that the parents would contribute to half of the living expenses, including the mortgage, groceries and bills, and that Luca would also reside there while he was finishing school. Raffaella says that despite this agreement, she paid most of the bills and living expenses, and her parents only contributed to the electricity bill and paid rent of $1,000 per fortnight.
In contrast, Giuseppe said that the arrangement when Raffaella and Mark moved in was that those two would pay half of the property expenses as rent, which was intended to be a temporary arrangement until they could “buy [him] out” of No 35.
While the family was living together in No 35, Giuseppe and Claudia entered into a lease for an apartment in The Entrance. Raffaella says that they still continued to reside part-time in No 35, while moving their belongings. Giuseppe says that Raffaella had asked them to move out due to Mark’s preferences, and that they did so but continued to pay half of the property expenses, on the understanding that Raffaella would pay him $700,000 for the property in accordance with the original arrangement.
Giuseppe says, however, that Raffaella was unable to obtain a loan in this amount to buy the property. He says that he was told by a broker that he was unable to obtain a loan himself due to his age and income.
In contrast, Raffaella said that she and Mark decided to sell the property in 2022, and offered to sell it to Giuseppe for $1.1m. Raffaella and Mark left the premises. She said that Giuseppe attempted to obtain a loan but was unsuccessful. In 2023, Giuseppe advised that he had obtained approval for finance, but Raffaella said that when she asked him for documentation, he claimed ownership of the property and threatened legal action against her. She said she has been denied access to the property since May 2023. The present proceedings were commenced after her application in NCAT was dismissed.

The third are documents which Raffaella described as (and which bear the appearance of being) the loan application for No 35 (CB 508-515). These stated that the amount of the loan was $670,315, it was a 30 year loan by an owner-occupier who was not a first home owner, the interest rate was 6.99% calculated by reference to an “Employee Benefits Program”, the purchase price was $615,000, that Raffaella had cash or savings available for purchase of $5,383.62 but was relying on an “equity gift” of $167,000, that the stamp duty was $23,165, and that there would be repayment of existing loans in the amount of $199,436.79. The contemplated fees included $127.90 for “Registration of discharge of mortgage (QLD)”. The document stated the proposed monthly mortgage repayments would be $5,265.
It will be seen below that the financial records which are available largely corroborate what was recorded on Raffaella’s loan application.
If the settlement sheet and the loan application are regarded as accurate, then the transfer was assessed at a value of $615,000. That may be derived from the stamp duty calculations. In 2012, s 32 of the Duties Act 1990 (NSW) stated that for dutiable transactions where the dutiable value was more than $300,000 but not more than $1,000,000, the duty was $8,990 plus $4.50 for every $100 by which the dutiable value exceeded $300,000, and 4.5% x $315,000 + $8,990 = $23,165, which is $20 less than the amount stated in the letter and the application, and that $20 may be accounted for by the nominal duty of $10 paid on other dutiable documents in accordance with s 18 where ad valorem duty has been paid.) Further, the amount of $615,000 coincides with the stated purchase price in a loan application made by her to the CBA.
Raffaella’s banking records demonstrate that after 1 December, there are regular loan repayments of $1,113.75 on 3, 10 and 17 December 2010, rising to $1,120 on 24 and 31 December, withdrawn from her “320” account and credited to a new “603” account (throughout these reasons, I shall abbreviate account numbers by their last three digits). I shall address these in more detail below. Those amounts are consistent with a 30 year loan at 6.99% on a principal of $670,315. (To explain why: a 30 year loan involves 360 monthly repayments of principal and interest, and 6.99% per annum is 0.005825 per month. Monthly repayments of principal and interest over a 30 year term may be calculated by the formula P x R x (1+R)^360 / ((1+R)^360)-1). Thus the repayments are $670,315 x 0.005825 x 1.005825^360 / (1.005825^360 – 1) = $4,455 to the nearest dollar, which is precisely 4 x $1,113.75, being the repayments on 3, 10 and 17 December 2010. It seems that it was determined (following a course taken by many borrowers), to make weekly repayments of one quarter of the monthly figure (thereby making 52 rather than 48 payments each year; an email from Raffaella to Christopher dated 29 March 2014 (CB 577) mentions this, which must have been familiar to Raffaella (who is described as a “Mobile Banker”): “as you are paying monthly, you are not shaving anything off the interest, you are paying the bare minimum”.)
The memorandum of transfer (CB 1037) stated that the consideration was $385,000. The transfer was stamped, but at $10. The $10 stamp contained a handwritten dated “1/12/10” which corroborates with the banking documents concerning the day of settlement.
No contract for sale of land or memorandum of transfer with ad valorem duty was tendered. It is clear that the $385,000 stated on the transfer was a considerable undervalue. It is substantially less than the price paid by Christopher in an arms-length transaction in 2006. It is consistent with a document signed by Christopher and Fabiola dated 26 October 2010 stating that they gave No 35 to Raffaella “for the amount of $383k and the equity for the property is [being] given to her as a gift” (CB 504).
I now come to an important point. Taking the documents tendered by Raffaella at face value, far more was borrowed than was needed to acquire title to No 35 from Christopher and Fabiola. The settlement sheet states that some $200,000 of the amounts required at settlement would be used to discharge a “Personal Loan of Raffaele [sic]” and a “Current Home Loan of Raffaele [sic]”. The settlement sheet also stated that some $14,333 would be paid into her personal account. The accuracy of those propositions is borne out by a close analysis of the banking statements. In the months prior to 1 December 2010, there were regular repayments from Raffaella’s 320 account of a “507” account and a separate “803” account. The debits associated with the 507 and 803 accounts cease after 1 December 2010. To anticipate what follows, I have concluded that:
The account ending in 507 is the same account associated with regular debits from Raffaella’s 920 account since at least 20 February 2008, consistently with the Queensland land, and thus it appears that “CBA H/L” is a reference to a home loan, and that loan was repaid on 1 December 2010.
The account ending in 803 is an account which is associated with a deposit of $12,273.11 on 18 November 2009 and repayments thereafter of $180. It seems probable that “CBA P/L” is a reference to a personal loan, and that loan too was repaid on 1 December 2010.
Finally, there is a deposit into Raffaella’s 920 account on 1 December of $14,032.45.
All this aligns with what is stated on the settlement sheet. Unusually, this is not a case where the whole of the funds at settlement are directed to discharging existing secured indebtedness on the property and paying the “equity” to the vendor. This is a case where some $214,000 of the $615,000 borrowed against a registered mortgage over No 35 was used to pay existing debt owed by Raffaella or to place some $14,000 in her hands. The rest was used to pay for stamp duty or to discharge the debt owed by Christopher and Fabiola on their mortgage.

There were also many pages in more familiar form of monthly (or sometimes six-monthly) bank statements. Most but not all of Raffaella’s 920 account were tendered, from February 2008 until February 2025. Statement 1 is missing. It should not be thought that the pages were placed in the Court Book in anything like chronological order, although it was not a large task to place them into such order so that sense could made of them. It may be that some other judicial officer has to repeat the task, for whose benefit I record that pages 1 and 3 but not page 2 of each of Statements 4, 7, 8 and 9, and pages 1, 3 and 5 (but not 2 or 4) of Statement 11 were tendered. The whole of statements 37-40 (for the period 14 May 2017 to 14 May 2018) were missing, although the transactions during that period may be found in the CBA printout.
Raffaella refinanced with Macquarie Bank in March 2019, although mortgage repayments continued to be made from the 920 account. The loan drawdown amount on 20 March 2019 was $760,000 (CB 710), secured by a registered mortgage (CB 1032). Monthly repayments started at $3,425.05, reducing to $3,085.64 from 20 May 2021, and rising sharply in 2022, when interest rates increased from 3.49% to 3.99% to 4.49% to 4.74% to 4.99% to 5.24% in the second half of that year (see CB 731) finishing the year at $4,210.44 per month. There were further rate rises in March and May 2023 leading to monthly repayments of $4,648.23, and further rises later that year. I shall return to the repayments, some of which bear directly upon the central issue in this trial.
Also tendered were 11 pages of Statement 9 of Raffaella’s CBA account ending 782, for the period 31 May – 30 November 2022 (CB 985-995). All but one entry (a payment of $180 on 5 October described as “babysitting”) was redacted, as were the running account balances. It is clear however (because there are more than 200 transactions) that this was an active account. Around 70 of the transactions are credits, and the masking of many is similar (one full line and a small portion of the second line) which is consistent with a recurring payment such as a salary. Why this account was almost entirely redacted is unclear to me. Raffaella also tendered some earlier bank statements (a Westpac account from July 2006 to January 2007), but aside from showing her salary, little turns on them.
A page was tendered which seemingly contains CBA bank account numbers, the account type and the denomination for family members (CB 843). Omitting duplications, there are 22 in all. Two were held by Fabiola (one in her own name, one a joint account with Christopher), one by Claudia (the 674 account), one a joint account of Luca and Claudia. Those four account were “Standard Branch” accounts. The rest were accounts in the name of Raffaella, either by herself or with Mark. Six were “NetBank” accounts. There were the following “Standard Branch” accounts: in Raffaella’s sole name: 670, 694, 920, 963, 619, 627 and 450, as well as accounts in Raffaella’s and Mark’s names: 971, 860, 879, 921 and 269. There were also NetBank accounts in Raffaella’s sole name (327, 782, 320) and in the couple’s names (689, 020, 550). One of the CBA statements (CB 1115) contains this text:

In May 2007, Raffaella had been employed by Commonwealth Bank of Australia (CBA) for just over a year, according to her loan application (CB 194). Her annual income was recorded as $39,584. She sought to borrow $140,837 to purchase land at Hay Point in Queensland. The application said the price was $180,000, and that she would also be repaying $9,000 in existing personal loans (with Esanda). Part of the consideration – some $40,000 – was described as “Gift”. The application was assessed on the basis that it would be a 30 year mortgage, at an interest rate of 7.34%, with repayments of $1,190 per month.
As will be seen below, the transaction proceeded. The best evidence of the conveyance is found in business records annexed to letters in an exchange between solicitors acting for the parties in 2023, including a settlement statement dated 11 July 2007, which included payments of $94,542.23 to Adelaide Bank and $29,509.76 to G & C Faraone. The solicitors denied that Giuseppe and Claudia paid for the transfer, or for any of the costs to date. Raffaella annexed a capital gains worksheet prepared by her accountant which records the property having been bought for $130,000, sold for $170,000, but having incurred some $120,000 in expenses between 2007 and 2023 (mostly interest of $82,657) with the result that she claimed a capital loss of $80,161 (CB 1108) which was lodged on her tax return (CB 1107).
The Queensland land is not part of the issues in this litigation. However, it remains relevant in two ways. First, Giuseppe’s case is that he helped his children acquire land, and Raffaella accepts that that occurred when she acquired the Queensland land. Secondly, and more importantly, the money borrowed by Raffaella to acquire the Queensland land was an important aspect of the settlement on 1 December 2010 of the conveyance to her of No 35.
Raffaella’s banking records for her 920 account for 2007 were not tendered, and those for 2008 and 2009 are incomplete. However there are regular debits of $1,237 described as “COMMONWEALTH BANK LN REPAY 418958507” on 20 February, 20 March and 21 April. Those debits are preceded by amounts which are just sufficient to leave the account in surplus. See for example the first page of Statement 3:
The next transaction (not reproduced in the portion extracted above) is the repayment of $1,237 on 21 April to the 507 account.
It is clear that someone was monitoring the account so as to ensure that $1,237 (and not much more) was available on the 20th or 21st of each month. The labels given to some of the deposits are suggestive: “car march and dad” and “PAPA HOME LOAN”.
By 20 May 2008, the repayments had risen to $1,329 per month. Then by November 2008 they had reduced to $1,147 and then to $1,037 in December, January (I presume – the page is missing), February and then $932 in March. Then something strange occurs. Page 1 of Statement 7 discloses a cash deposit of $15,000 on 16 April 2009 (CB 209). The closing balance on 20 April 2009 exceeds $15,000. Page 2 of Statement 7 is missing, and Statement 8 commences on 1 May 2009 with an opening balance of $3,072.34. Hence there was a withdrawal of some $12,000 between 21 and 30 April 2009. Because the computer generated printout only starts in 2010, there is nothing in evidence that sheds light on this.
Commencing on 18 May 2009, there are two streams of monthly repayments: $932 to the 507 loan account, and a new recurring debit of $279 to a new account ending in 008. The 008 debits cease on 18 November 2009. On that date, it seems likely that Raffaella refinanced some credit card debt and entered into a new loan facility.
It will be seen that funds of $12,273.11 were deposited on 18 November 2009, with a description which ends in 803. The following day, it appears that $6,227.48 of Bankwest credit cards were repaid. Thereafter, there are weekly debits of $180 credited to the 803 account, a one-off debit of $932, and later regular debits of $240 credited to the 507 account. The pattern of modest weekly payments of $180 to the 803 account and around $260 or $270 or $280 to the 507 account continues until November 2010.
The 920 account for the period from 4 November to 3 December 2010 is revealing:

It is convenient to start with calendar year 2011, the first calendar year after Raffaella became the registered proprietor of No 35. Her 920 account shows the following.
There are weekly repayments, in amounts of $1,120 (from 7 January until 23 September) and $1,113.75 (from 30 September until 30 December 2011). These are shown both on the spreadsheet, and on Statements 13 and 14 for that account (CB 341-357). The latter show the following:
First, there are no regular salary credits into that account.
Secondly, the balance prior to 28 April 2011 never exceeds $3,100, despite the fact that more than a thousand dollars is being debited each week. That comes about in large measure because there are in most weeks cash deposits in the order of $1,000.
Raffaella highlighted another source of funds to that account, namely, payments expressed to have been made by bank transfer by Fabiola. There are precisely 12 such deposits, all styled “Transfer from FABIOLA BONOMO NetBank”. They are as follows: $126 (3 Feb), $1,000 (10 Feb), $500 (18 Feb), $300 (26 Feb), $100 (3 Mar), $1,400 (11 Mar), $300 (27 Mar), $420 (21 Apr), $430 (23 Jun), $430 (27 Jul), $430 (25 Aug), $430 (21 Sep), $430 (27 Oct), $430 (21 Dec). In addition, although not highlighted in her table, is a credit of $811 on 30 November 2011 described as “Transfer from FABIOLA BONOMO NetBank tax money”. Those payments which exceed $6,000 contribute only just over one tenth of the mortgage repayments.
There are three relatively large transactions in this period: a credit of $20,000 on 28 April 2011 described as “746473218 Admin”, a debit of $14,400 on 30 June 2011 described as “Transfer to other Bank NetBank solar system pay”, and a deposit of $8,800.42 on 3 November 2011 described as “Chq Dep Branch Wpnt Blacktown”. Otherwise every transaction is no more than $1,500. Interestingly, the largest credit of $20,000 on 28 April 2011 bears the same number 746473218 as every mortgage repayment, which is consistent with it being further drawn down (or there being a “redraw”), but it is impossible to express any concluded view. The $14,400 debit relates to the solar panels and I shall return to it. The third deposit is mysterious.
There are two further recurring types of deposits into the account over this period: cash deposits and transfers from the 694 account. The latter have descriptions which are (or are very similar to) “Transfer from xx2694 NetBank home loan”. These were made on 14 Jan, 26 Jan, 11 Feb, 25 Feb, 11 Mar, 24 Mar, 7 Apr, 21 Apr, 5 May, 20 May, 4 Jun and 17 Jun. Those fortnightly deposits then stop, and there is a deposit of $1,000 on 30 June with a slightly different description “Transfer from xx2694 NetBank home loan repay”. There follow 18 Jul $950 “Transfer from xx2694 NetBank transfer”, 28 Jul $1,100 “Transfer from xx 2694 NetBank home loan”, 12 Aug $1,000, 26 Aug $1,000, 8 Sep $1,000, two on 22 September to which I shall return, 20 Oct $1,000, 3 Nov $1,000, 16 Nov $1,000, 2 Dec $1,000, 16 Dec $1,000.
On 22 September there are two unusual deposits:
It will be seen that both purport to be transfers from the xx2694 account in the amounts of $1,000, but one is described as “from raff”. It is clear that the person or persons who made each transfer entered the descriptions “home loan” and “loan from raff”; evidently those descriptions were not created automatically by the bank’s computer systems, but individually by the person making the transfer. It would be unusual for the named account owner to give such a description to a deposit into her own account. It is however consistent with Giuseppe’s account that it was he rather than Raffaella who made funds available to that 920 account.
There are also deposits described invariably as “Cash Dep Branch Wpnt Blacktown” or “Cash Dep Branch Rouse Hill”, and in one case (13 Jan) at Tweed Mall. These occurred as follows: 13 Jan $700, 28 Jan $700, 4 Feb $300, 10 Feb $700, 24 Feb $700, 10 Mar $1,000, $17 Mar $50, 24 Mar $700, 24 Mar $300, 28 Mar $100, 30 Mar $700, 7 Apr $600, 21 Apr $700, 21 Apr $300, 27 Apr $200, 28 Apr $360, 5 May $700, 19 May $700, 19 May $400, 2 Jun $1,000, 16 Jun $700, 16 Jun $300, 30 Jun $700, 30 Jun $300, 8 Jul $900, 13 Jul $300, 14 Jul $700, 14 Jul $300, 22 Jul $300, 28 Jul $700, 28 Jul $300, 4 Aug $1,500, 11 Aug 700, 11 Aug $300, 19 Aug $320, 25 Aug $300, 25 Aug $700, 2 Sep $380, 8 Sep $700, 8 Sep $300, 13 Sep $300, 16 Sep $1,000, 6 Oct $700, 6 Oct $300, 20 Oct $700, 20 Oct $250, 28 Oct $150, 3 Nov $700, 3 Nov $300, 17 Nov $300, 17 Nov $700, 1 Dec $700, 1 Dec $300, 22 Dec $300, 22 Dec $700.
There is a very close correlation between withdrawals from Claudia’s account shortly after social security payments are made, and the cash deposits in Raffaella’s account. Claudia’s account shows the following withdrawals for 2011 all from ATMs mostly in Woodcroft, Blacktown and Rouse Hill (CB 844-847): 13 Jan $1,000, 28 Jan $1,100, 10 Feb $1,000, 24 Feb $1,100, 10 Mar $1,000, 7 Apr $1,100, 21 Apr $1,170, 5 May $1,160, 19 May $1,200, 2 Jun $1,190, 16 Jun $1,170, 30 Jun $1,070, 13 Jul $900, 14 Jul $1,000, 28 Jul $1,000, 4 Aug $1,700, 11 Aug $1,000, 25 Aug $1,100, 8 Sep $1,100, 22 Sep $1,100, 6 Oct $1,100, 20 Oct $1,020, 3 Nov $1,000, 17 Nov $1,050, 1 Dec $1,000, 15 Dec $1,100, 29 Dec $1,000.
The pattern linking the social security payments to Claudia and the deposits to Raffaella’s 920 account (where the money was available to meet automatic mortgage repayments) is more easily observed by the following table which records every cash withdrawal from Claudia’s account on the day on which social security was paid into her account:

I do not accept Raffaella’s denials that Giuseppe did not make payments towards the loan and did not make debits and credits to the 920 account. The transactions being discussed may be seen on Raffaella’s statement from Macquarie Bank for this period:
It will be seen that the interest rate decreased on 20 April from 3.30% to 2.44%, with the effect of reducing monthly repayments from $3,425.05 to $3,085.64. However, on 20 April 2021, a repayment was attempted to be made, from an account ending in 920, in the higher amount and was dishonoured, with the result that a fee of $5 was charged.
The $3,085 mentioned by Raffaella to her father is the revised monthly repayment and the $5 fee was also evident.
The natural way of reading Giuseppe’s words “[w]hy the loan payment was the same as the previous month? You said that supposed to be $3,085 and I left more than that in the account” is that Giuseppe had access to the 920 account from which mortgage payments were made, and had taken steps to leave more than $3,085 in the account.
But there is more. Raffaella’s 920 bank statement corroborates the above, and reveals the transactions preceding the dishonoured payment on 20 April:
The attempted debit of $3,425.05 on 20 April is shown as unauthorised. That is because there was only $3,350.97 in the account, resulting in a deficit of $74.06; evidently transfers which left the account in debit were not authorised, hence the transaction was reversed and a fee charged. On the following day, there is a deposit of $300, which permitted the debit of $3425.05 to proceed on 23 April.
Significantly for present purposes, there was a cash deposit of $900 at Stanhope Gardens on 18 April, and a transfer the following day of $400 to Claudia’s 674 bank account (see CB 906). The natural way of reading Giuseppe’s words “I left more than that in the account” is that Giuseppe caused either or both of the $900 and the $400 transactions to take place.
Claudia’s account for 19-22 April discloses the following:
I find that the transfer of $400 on 19 April 2021 from the 920 account was made by Giuseppe. He said the following day that he left enough in the 920 account for what he understood was a $3,085 repayment to be made; the natural meaning is that he caused a debit to the 920 account, and as it happens, it was the $400 withdrawal which caused the automatic mortgage payment debit to fail. Further, the description given to the $400 transfer, as is apparent from Claudia’s statement, is “Lended”. In Italian, presto is a weak verb, and it would be natural for Giuseppe to think that “lended” is the past participle of the English verb to lend; there is no especially obvious reason for a person who learns English as a second language to know that the past participles of “lend”, “bend”, “send” and “spend” are strong but those of “fend”, “mend” and “tend” are weak. On the other hand, there is nothing to suggest that Raffaella who came to Australia aged around 11 and who is fluent in English would make any such mistake. Indeed, in re-examination, she said “[o]ver the years, I also lent some other money, 10,000 to 15,000 in different amounts”.

First, there are more than a hundred account transfers with the description “Lended” in the statements in evidence. For the reasons given above, this is suggestive of their having been deposited by Giuseppe.
Secondly, on 31 January 2013 (CB323) there is a deposit to the 920 account of $1,000 described as “Transfer from xx4619 NetBank transfer raffy”. The 4619 account is one of the numerous accounts in the name of Raffaella of which no details are in evidence. It seems likely that Raffaella was the person who transferred these funds and who chose to identify the transaction with the words “transfer raffy”. This cuts both ways. On the one hand, it points powerfully to the proposition that Raffaella was personally responsible for transferring that $1,000 into the 920 account. However, the reason that “transfer raffy” cuts both ways is that a possible reason for Raffaella to label that deposit in that way was that she was aware that many of the deposits into the account were not made by her. It is difficult to think of another reason. That said, it is also necessary to bear in mind that she was not cross-examined about this.
The 31 January 2013 deposit labelled “transfer raffy” was not an isolated example. There are many other electronic transfers into the 920 account similar to this, made from Raffaella’s 4627 and 4619 accounts. See for example 23 May 2013 $300 “Transfer from xx4619 NetBank raffy”, 31 May 2013 $300 “Transfer from xx4627 NetBank raffy” and on the same day a further $500 “Transfer from xx4619 NetBank Raffy”, 13 June 2013 $300 “Transfer from xx4627 NetBank raffy”, 28 June 2013 $300 “Transfer from xx4627 NetBank Raffy”, 1 July 2013 $790 “Transfer from xx4619 Kaching Raffy home loan” (see CB 308 and 307) and 9 August of $300 “Transfer from xx4627 NetBank Raffy”.
On the same pages of statement 20, there are also cash deposits from the Blacktown branch of $2,320 on 16 May, $650 on 30 May, cash deposits at Rouse Hill on 21 June of $700, at Olympic Park on 14 June of $320, of $700 and $300 at Rouse Hill on 28 June, of $1000 at Blacktown on 15 July, and of $700 and $800 at Blacktown on 25 July.
Finally there are three transactions on 3 August, all involving $14,613. One is a transfer from xx4619 , which is then reversed by the second, and the third is “Transfer from xx4627 NetBank Transfer taxes”. It is plausible to think that this represents a tax refund reflecting the excess of interest payments and other property costs over rent receipts. To be clear, the 4619 and 4627 accounts were in Raffaella’s name (CB 843), no information about either account was tendered, nor did Raffaella tender any evidence concerning her taxation affairs, save for the emails with her accountant mentioned shortly below, and the single page representing a compromise of her tax liability for the 2012 and 2013 financial years also mentioned above, and her testimony that the tax debt was some $60,000, not the $130,000 attributed to her.
By way of further example, statement 20, which covers the period from 14 May to 13 August 2013, shows mortgage repayments of $3,776 on 3 June and $3,677 on 1 July and 1 August. There are the following classes of deposits:
NetBank deposits with descriptions including Fabiola’s name of $430 on 28 May, 26 June and 24 July $430.
NetBank deposits which include Raffaella’s name from the 4619 or 4627 account of $300 on 23 May, $300 and $500 on 31 May, 13 June, 28 June, 12 July, 1 August, 2 August and 9 August, and $790 on 1 July and $370 on 2 August.
Deposits described as “Cash Dep Branch Wpnt Blacktown” of $2,320 on 16 May, $650 on 30 May, $320 on 14 June (Olympic Park), $700 on 21 June (Rouse Hill), $300 and $700 on 28 June (Rouse Hill), $1,000 on 15 July, and $700 and $800 on 25 July.
The CBA schedule shows social security payments into Claudia’s account on 16 and 30 May, 13 June, 19 June, 27 June, 4 July, 11 July and 25 July. The same correlation between social security payments and deposits into the 320 account may be observed.

It is possible for a witness not to remember why she said something, but to be certain that it was not for a nominated reason, even if that reason appears likely on the face of the document. However, the response is also consistent with an awareness that she would deny any interest whatsoever by her father, and rely on the age of a document where no other explanation would avail her.
Neither Raffaella nor Giuseppe was taken to some of the details of the payments summarised above, and in assessing their evidence, I bear in mind that for some of the specific transactions they did not have a chance to respond. I do not think that greatly matters. Had Raffaella been taken to the $4,455 which I have found was deposited by Giuseppe on 24 January 2012, she may very well have said (as she said to other questions which much less elaborately confronted her with admissions against interest) that she did not recall a particular payment made 13 years ago. It is also possible that she may have acknowledged that as an exception to the general rule that Giuseppe made no mortgage payments. Likewise, if Giuseppe had been confronted with a deposit into the 920 account which said “from Raffy”, he may have given similar responses.
Claudia said that she was not especially numerate, and that her command of written English was imperfect. I was unimpressed with Mark as a witness. Christopher presented as a straightforward witness, although without doubting his sincerity it must surely be difficult to distinguish between payments made a couple of decades ago comprising (a) board when he was living with his fiancée’s family, (b) mortgage repayments when he was again living with his wife’s family in a house in his name where slightly more than half of the purchase price had been paid for by funds supplied by his father-in-law, and (c) mortgage payments on No 37. Fabiola’s evidence did not closely concern the contentious aspects of No 35, and was focussed more on whether she received wages when working at a café, and the nature of the $280,000 supplied by Giuseppe. For all of these witnesses, I place greater weight on the contemporaneous documents than their recollections, which are inevitably linked with self-interest, concerning events of many years ago. I have also borne steadily in mind that at least some of their testimonial evidence (the parts which are diametrically opposed) must be unreliable. Finally, I bear in mind that the letter signed by Giuseppe stating that the $280,000 was a gift was intended to be relied upon by third parties, and acceptance of his evidence entails that he was making a formal statement intending it to be relied upon which was not true.
Serena’s evidence was in a different category from all others. Unlike Raffaella and Giuseppe, she focussed on the question she was asked and tended to answer it and it alone. She was unemotional, and seemingly sincere. Unlike all other witnesses, she did not adopt an extreme position. I am certain that she considered Raffaella’s conduct in this litigation to be completely contrary to what she regarded as a clear understanding of the position.

To the extent that it is part of his case, Giuseppe bears the onus of establishing that he made (in a real and practical sense) all mortgage payments and all expenses such as rates and payments for building work. He has failed to do this. Plainly all of the mortgage repayments were derived from Raffaella’s 920 account, and at least some of those payments were themselves made possible by other deposits which appear on their face to have been from Raffaella. True it is that there is a basis for considering that some of the transfers from the 674 account may have been made by someone other than Raffaella (bearing in mind the two transfers on 22 September 2011 one of which was described as “loan from raff” and the other as “home loan”) but there is no reason to doubt that if that were so, there would be ample documents in his possession which would establish as much, which Giuseppe has not placed into evidence.
On the other hand, I do not accept Raffaella’s claim that Giuseppe paid for nothing in the same real and practical sense. To the contrary, I find that the directly traceable proceeds of payments he made into the 920 account were spent on mortgage repayments and other expenses of No 35. I have referred above to the deposit of $4,455 made from an account ended 384 on 24 January 2012, which followed information supplied by Raffaella and which precisely corresponds to four weekly payments of $1,113.75. Similarly, it is clear that deposits in 2021 were made by Giuseppe. There is reason to believe that some of the other payments, including those described as “Lended”, may have been made by Giuseppe. Precisely how many were made by him is unclear. It will be convenient to return to this below when dealing with detriment and, especially, relief.
I find that at the time No 35 was transferred first to Christopher, then to Christopher and Fabiola, and then to Raffaella, this occurred because Christopher and Fabiola in 2006 and 2009, and Raffaella in 2010, all agreed with Giuseppe and Claudia that No 35 was to be owned beneficially by Giuseppe. That is the testimonial evidence of Giuseppe, Claudia and Serena. My finding involves not accepting the evidence of Raffaella, and to a lesser extent Mark, Fabiola and Christopher on this issue. I do so for the following reasons.
First, it is difficult otherwise to see why in May 2011 Raffaella was telling her accountant that Giuseppe was entitled to parts of her tax refund.
Secondly, it is difficult otherwise to see why Raffaella repeatedly over the years kept her father informed as to the monthly repayments to service the mortgage (first with CBA, then with Macquarie Bank). It may be, as Raffaella contended in final submissions, that the emails in evidence are isolated examples. Nonetheless, why were they sent at all?
Thirdly, there are also numerous admissions by Raffaella to that effect. It is difficult otherwise to see why Raffaella repeatedly referred to the house being Giuseppe’s, including:
“If you wish to sell the house then you need to take the appropriate measures to get this done. I will not be doing it for you” (9 January 2012);
“I have stopped putting the money in the home loan, so ensure you keep on top of your repayments” (10 January 2012);
“Your repayments are $4,455 and are due the 1st of every month … There is also money in the MISA account of $7,410 (at the moment by having the money in there you are paying less interest in your home loan balance)” (11 January 2012);
“Guilt trip me all u want about your house. U got yourself in this mess with your stubbornness and ego. U want to sell it, sell it” (18 June 2021);
“U own this house. I pay rent … Unless you will reimburse me that money once you sell your house … Not sure what planet you are on dad but come back down to earth” (22 August 2022).
Raffaella was squarely confronted in cross-examination with the communication with the accountant, her emails to Giuseppe advising him of the monthly repayments, and the admissions in her emails and other messages. I am unpersuaded that her various explanations suffice to displace the ordinary conclusion to be drawn from all those documents. I bear in mind that Raffaella’s position was consistent with Giuseppe’s signed acknowledgement that the $280,000 was a gift, with which he was confronted in cross-examination. But his evidence that it was requested by the broker and was “just for the purchase of the property to serve the loan, nothing else” is not implausible, although it is far from creditable.
The banking documents corroborate Giuseppe’s evidence that the $280,000 represented the proceeds of sale of real property in Italy. It makes no sense for that amount to be given with no strings attached to the fiancé of his oldest daughter, thereby sowing the seeds for complaints about unfair treatment of all five younger siblings. Giuseppe said, concerning the $280,000:

That is inherently plausible. There is nothing in the evidence to suggest that Fabiola was the favoured child, who received a substantially disproportionate advantage over her younger siblings.
Further, there is the fact that Raffaella also acquired No 35 at substantially less than full value. The fact that Christopher and Fabiola were prepared to transfer title to No 35 at a price reflecting the outstanding mortgage debt, as opposed to its value, is confirmatory of the fact that the $280,000 was not a gift.
What were the circumstances in which Raffaella came to be the registered proprietor of No 35? Although some of the details are not completely clear, I am very comfortably satisfied that she acquired title in highly advantageous circumstances.
The starting point is the settlement sheet tendered by Raffaella. According to that document, the conveyance proceeded on the basis that the consideration was $615,000 but $167,000 was an “equity gift” such that Christopher and Fabiola received only what was necessary to discharge the existing mortgage. I did not understand Raffaella to dispute that much.
In addition, it is clear from the settlement sheet on which Raffaella relied, as well as the internal CBA banking records, that some $214,000 of the amount provided at settlement was being deployed to discharge Raffaella’s personal indebtedness, or else to provide her with some $14,000 in funds.
That is to say, this is not a case where Raffaella has been shown to have contributed anything of her own assets (as opposed to funds borrowed by her) to acquire property. Nor is it a more usual case where Raffaella’s own funds, in the form of money borrowed from the bank secured by a mortgage over the property are deployed to acquire property. This is a case where Raffaella acquired title to the property, subject to a large personal obligation to repay the bank which obligation was secured by a registered mortgage over the property, but also Raffaella obtained the benefit of some $214,000 in borrowed funds because the purchase price was so much less than the value of the property and the amount the bank was prepared to lend.
To reiterate, on the face of the settlement instructions, Raffaella (the purchaser) was receiving benefits of $35,000 plus $165,500 plus $14,333.34 from the proceeds of sale. That much is borne out by the banking records:
The internal banking documents referred to closing the 507 “H/L” and the 803 “P/L” which appear to correspond with the $165,000 home loan for Queensland and the $35,000 personal loan Raffaella took out. The regular repayments for the 507 and 803 loans cease after 1 December 2010, and the internal banking documents refer to a fee for the discharge of a Queensland mortgage.
An amount slightly exceeding $14,000 was paid into the 920 account on the day of settlement.
The weekly repayments of $1,113.75 reflect a new borrowing in Raffaella’s name of $670,315. The $670,315 accounts for the discounted purchase price of No 35, the repayment of Raffaella’s existing personal loan and existing loan for the Queensland land and for the deposit of some $14,000 into her account, as well as paying for stamp duty and discharging the existing indebtedness of Christopher and Fabiola.
Drawing that together, upon settlement in December 2010 Raffaella obtained legal title to No 35. The purchase price, for the purposes of the bank’s calculations and stamp duty, was $615,000. Raffaella appears to have contributed nothing from her own funds. She borrowed $670,315, but that was used to repay existing loans (in the application form, stated to be $199,436.76), to pay stamp duty. It was necessary to discharge the mortgage registered to secure the existing indebtedness of Christopher. The contemporaneous documents, consistently with the evidence at trial, was that Raffaella agreed with Christopher and Fabiola to take on the property to discharge their debt. The settlement sheet refers to paying out the Commonwealth Bank of Australia in the amount of $431,356.66, which evidently reflects Christopher’s existing indebtedness. I note that indebtedness of some $431,000 plus the “equity gift” of $167,000 equals $618,000 which is very close to the sum of the stated price of $615,000 and various fees totalling $3,199 (principally, mortgage stamp duty of $2,684).
The fact that the bank was prepared to lend $670,315 suggests that the value of No 35 was considerably greater, but it is not necessary to go so far. On any view, Raffaella acquired title to No 35 at a very substantial discount. She appears to have made no contribution from her own retained assets, had debt of some $200,000 repaid, and the purchase price was at a substantial undervalue, made possible by an “equity gift” (reflecting the willingness of Christopher and Fabiola to transfer title not for the value of the property, but instead merely for the repayment of the existing mortgage debt).
Finally, there is the evidence of Serena. She was not directly financially interested in the proceedings. Nonetheless, she made no secret of the fact that she no longer spoke to Raffaella. I bear in mind their animosity when assessing her evidence.
Serena gave her evidence precisely, calmly and authoritatively. She confirmed the conversations concerning the house being Giuseppe’s:

I accept Serena’s evidence as reliable. In part, that is a conclusion affected by the manner in which her evidence was given. Indeed, to be completely candid, I formed the view that the cross-examiner rapidly formed the view that the sooner her cross-examination concluded, the less harm would be done to Raffaella’s case. Had I been in his position, I would have formed the same view. An example of her highly effective answers in cross-examination (concerning whether Giuseppe assisted in building work) is reproduced below.
I am certain that Serena had a sincerely held recollection that on multiple occasions involving the family it was agreed that the house remained Giuseppe’s. That recollection could be wrong. But it is corroborated by all of the documents and admissions by Raffaella mentioned above, although I am conscious of the evidence of Christopher, Fabiola and Raffaella to the contrary, as well as the document signed by Giuseppe stating that the $280,000 was a gift.
I earlier noted that the trial proceeded without Giuseppe’s cross-summons being pleaded. It was plain from his opening written submissions that he sought a constructive trust based on either proprietary estoppel or what is often called a “common intention constructive trust”. Indeed, his written submissions supplied in advance of the trial referred to what I had said about the proper characterisation of such a trust in Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [116]-[119]. There was no opposition from Raffaella to his unpleaded case being based in this way.
There are three key findings of fact, made in a context where family members were accustomed to paying board to contribute to household expenses when they were renting at Woodcroft, of which I am satisfied.
First, when Christopher acquired title to No 35, the property where the whole extended family was going to live instead of the previous rented accommodation, payments of board would continue but would go to fund the loan repayments. It was agreed that Christopher would be the legal owner, but that the property would be acquired using (a) the $280,000 supplied by Giuseppe from the sale of property in Italy and (b) money borrowed from the CBA secured by a mortgage over the property, on terms that ultimately Giuseppe would be responsible for servicing the mortgage to the extent that payments of board would not suffice, and it would be held by Christopher on trust for Giuseppe.
Secondly, nothing changed when Fabiola became a registered co-owner; she was aware of the basis stated above.
Thirdly, nothing materially changed when title to No 35 was transferred to Raffaella, who likewise was aware of the basis stated above. The central difference in the transfer to Raffaella was that instead of the $280,000 funds supplied by Giuseppe by way of case, instead there was an “equity gift” of $167,000, together with the discharge of Raffaella’s personal debts and a transfer of funds of some $15,000. (Even if there were a similar arrangement with the Queensland land, such that it was held beneficially by Giuseppe, the transaction remained one which was substantially favourable to Raffaella). The “equity gift” (which reflected the difference between the value of No 35 and the existing debt) was value owned beneficially by Giuseppe which once again was contributed in order to permit Raffaella to become the legal owner, but on the same basis.
For completeness, I acknowledge the possibility that there was some difference in the position involving Raffaella in 2010 than occurred in 2006. The settlement statement tendered by Raffaella, corroborated by the banking documents, establishes that Raffaella received additional benefits, including the repayment of a personal loan and a deposit of some $14,000. But it is not necessary for me to reach any conclusion about whether Giuseppe and Raffaella had a further arrangement or agreement concerning those additional issues. They do not detract from the point which matters, namely, that the beneficial ownership of No 35 remained with Giuseppe, on the basis that he would place Raffaella in funds to meet mortgage payments to the extent that contributions from family members living there did not suffice.
The elements of a proprietary estoppel in such cases have been stated in Pirrottina v Pirrottina [2025] NSWCA 55 at [35] and Kramer v Stone [2024] HCA 48; 99 ALJR 126 at [37]-[40]. It was said that the four elements of an equitable estoppel arising by reason of encouragement from a promise are:

The $280,000 contributed by Giuseppe represented the majority of his wealth. There was no challenge to his evidence that it was some 70% of his net wealth at the time. That evidence is inherently plausible, having regard to the family’s immigration to Australia to live in rented accommodation at the time. Further, if as Raffaella submitted the money was a gift to Fabiola for her wedding and also unpaid wages, then it was shockingly unfair to the other five younger children.
The same is true of the “equity” which was contributed by Giuseppe when No 35 was transferred to Raffaella. Once again it represented the majority of Giuseppe’s wealth, and was to be used to benefit all five of the younger children.
I find that Giuseppe participated by supplying the $280,000 when No 35 was first acquired, and by supplying the $167,000 when No 35 was transferred to Raffaella, because Christopher, Fabiola and Raffaella all accepted at those times that they held the land on trust for him, and that he would ultimately be liable to meet any shortfall in mortgage repayments and other property expenses if the customary board did not suffice. In both 2006 and 2010, that was substantial detrimental reliance.
The appropriate remedy is to make good the common assumption. That is the starting point: Priestley v Priestley [2017] NSWCA 155 at [164]; Pirrottina at [98]. However, as will be seen below, that does not mean that Raffaella (to the extent that she incurred expense holding and improving the trust property) is left without remedy. But the discretion as to remedy cannot be exercised without first attending to various subsidiary issues.
Alternatively, the findings identified above suffice to conclude that there is a “common intention constructive trust”, to the extent that that is conceptually different from proprietary estoppel. The elements are found in Galati v Deans [2023] NSWCA 13 at [53]-[60] and [148]-[149]. The requirements of actual intention are, on my findings, made out, in relation to each of Giuseppe, Christopher, Fabiola and Raffaella. Each intended that the registered proprietor of No 35 would hold that land on trust for Giuseppe, who had provided most or all of the purchase price that was not borrowed, and who would service the mortgage to the extent that payments of board or rent from family members living in No 35 were insufficient. Giuseppe acted to his detriment in contributing the majority of his net wealth to the acquisition of No 35.

Faced with the myriad of detail, no attempt was made to falsify the entirety of Giuseppe’s claim that he paid all the building expenses. Counsel instead, appropriately, focussed on two relatively large items: the solar panels (which cost $14,900) in June 2011, and some timber work which cost $8,000 in May 2018.
I shall address each of these two items in turn.
The solar panels. Giuseppe said in his affidavit “I arranged and paid for Solar panels to be installed in 2011” and exhibited an invoice which he said he paid. However, Raffaella said that she took out a personal loan of $20,000 to pay for the solar panels, and then paid for the panels from her 920 account. She exhibited the loan approval as well as the invoice. The documents exhibited are for a personal loan in the amount of $15,000, approved by the CBA on 27 April 2011. However, there is a deposit of $20,000 into the 920 account on 28 April 2011 and it is reasonable to assume that the CBA increased its approval to $20,000 (CB 794), which is what Raffaella deposed to and as to which she was not cross-examined.
In closing address, Mr Young fastened upon the $14,400 for solar panels, saying “Now, we know, we can tell from the bank records that at least some of the payments that [Giuseppe] claims, he didn’t make” (T150.12). The example was a 30 June 2011 debit of $14,400 from Raffaella’s 920 account described as “solar system pay” (CB 796). The invoice was in evidence (CB 521), it was issued by “RME Renew My Energy”, addressed to Raffaella, and showed that a deposit of $500 had been paid on 29 April 2011 with an outstanding balance of $14,400. The 920 account also discloses a transfer to “RME” of $500 on 29 April 2011 (CB 794).
For the year prior to 28 April 2011, the account had little money in it. On 28 April 2011 there is a deposit of $20,000 described as “746473218 Admin” and on the following day the $500 deposit for the solar panels was withdrawn. As earlier noted there ensure regular repayments of $94 described as “LN REPAY 746473218” thereafter. This accords with Raffaella’s evidence that she “applied for and was approved for a $20,000 personal loan for the solar panels” (CB 124). In a practical sense, the $20,000 deposit was the source of funds for the solar panels. (The difference between the $14,900 needed and the $20,000 borrowed was not explained.)
The calculations approving the $15,000 loan were based on 83 monthly payments of $275 and a concluding payment of $172.45. For a loan of $20,000, the repayments would be in the order of $367 (ie. 275 x 20,000/15,000) over the same seven year period. And, sure enough, there are weekly repayments of $94 from the 920 account, commencing on 5 May 2011, and thereafter on 12, 19 and 26 May, 2, 9, 16, 23 and 30 June, rising to $100 on 7, 14, 21 and 28 July (CB 353-357), and 4, 11, 18, 25 August, 1, 8, 15, 22 and 29 September, and so on. The repayments continue at $100 per week until 16 August 2012. There follow transactions consistent with paying out the $20,000 personal loan. Page 1 of Statement 17 (CB 327) shows the last $100 repayment to the 218 account, and then a deposit of $21,064 and a transfer to the 218 account of $9,041.61 described as “PL pay out”:
Thus, it is true that Raffaella paid for the solar panels, doing so with funds borrowed by her and financed by a personal loan. However that indebtedness was serviced from the 920 account for the ensuing 15 months no differently from the mortgage, and was discharged by reason of an “investment return” received from another account on 17 August 2012.
I return to Raffaella’s email of 11 January 2012, reproduced above, which referred to “your personal loan repayments of $366 which are also due the 1st of every month. They are currently set-up weekly to come out every Thursday for $100”. The $100 weekly debits from the 320 account are to the 218 account. That is to say, in her email of 11 January 2012, Raffaella told Giuseppe that the loan taken out in her name used to pay for the solar panels being repaid by recurring debits of $100 as “your personal loan repayments”.
That said, it is also necessary to bear in mind that Raffaella was not taken to the link between the $100 debits and her email of 11 January 2012.
The result is that it remains unclear whether Giuseppe indirectly paid for the solar panels. I make no finding one way or the other.
Timber floor*.* The second example selected by counsel in closing address was an amount of $8,000 paid, some seven years later, for some timber work, which included more than merely some flooring, but which was described by all in this trial as the “Timber floor”.
It was put in closing address on behalf of Raffaella:

Serena answered the questions asked, and corrected the cross-examiner when he (inadvertently) misstated her evidence that she had seen her father assist the licensed tradesmen working on the house.
Raffaella denied that Giuseppe did any work, but it is difficult to see that she would be in a position to say that from her own knowledge. There were adjectival issues whether Giuseppe had any skills relevant to building work, and whether he was licensed. He freely accepted he was not licensed, but said that where necessary he worked under the supervision of a licensed tradesman (such as an electrician). There was an attempt to cross-examine him to the effect that he had no specialised skills, but on that point I accept his evidence, which was corroborated by Serena.
I find in accordance with Serena’s evidence that Giuseppe paid the contractors who did work on the site. I also find that Giuseppe did some construction work on the site, albeit that it was often supervised by licensed tradesmen.
Other issues. A deal of time was occupied by a handwritten note, purportedly signed by Fabiola, concerning wedding expenses and, perhaps also, unpaid wages. In her affidavit, she doubted that the signature was hers; in cross-examination she was more confident that it was not. The signature resembles to the unassisted eye other instances of Fabiola’s signature at around this time. But there was no expert evidence and in any event it is unnecessary to resolve this issue. The point of the submissions on the handwritten note were to buttress the submission that the $280,000 was a gift. I do not accept that it was; I do not accept that Giuseppe gave the majority of his wealth to Christopher and Fabiola as a wedding gift or as unpaid wages.
Likewise it is not necessary to determine whether Fabiola worked in Giuseppe’s café without being paid, contrary to a document which appeared to be the expense book with handwritten payments of wages. That too was directed to the character of the $280,000.
Finally, it is not necessary to address the changed arrangement in around 2021 and 2022 when Giuseppe returned to live in No 35, or the competing evidence about efforts to transfer title at this time. That does not detract from the conclusion that Raffaella holds No 35 as a trustee, which arose from events more than 15 years earlier, although it will impact upon her entitlement to indemnity.

Accordingly, let it be assumed that there was an agreement on which Giuseppe relied to his detriment, but that I am wrong to conclude that the appropriate remedy is a trust. Giuseppe claims a pecuniary entitlement reflecting the cost of the amounts he has paid since 2019.
Ex hypothesi, Giuseppe contributed $280,000 when No 35 was acquired by Christopher, and for the reasons given above, that was not a gift.
I am unpersuaded that good conscience would require Raffaella to repay Giuseppe for the cost of the various improvements to No 35. It is trite that the cost of improvements can bear little relationship to their value, and indeed many home improvements may diminish the property’s value. The extensive roofing installed which covers much of the back yard may be an example. There was no evidence of any value added to the property by any of the improvements.
I am persuaded, contrary to Raffaella’s evidence and submissions, that Giuseppe performed building work on No 35. However, the evidence does not permit me to ascribe any monetary amount to the extent to which that work improved the value of No 35.
Underlying the conclusions in the preceding two paragraphs is my view that Raffaella should not be held liable for the actual cost to Giuseppe, or the cost of an equivalent worker, which have not been shown to have improved the value of the land owned by her.
Then there is the question of determining to what extent in fact Giuseppe put Raffaella in funds to make mortgage repayments. On this issue Giuseppe bears the onus. He has tendered none of his own financial records to establish which of the cash deposits were made by him. I do not accept that he paid, personally, all of the repayments to the Homeside Lending account when No 35 was owned by Christopher and Fabiola. The deposits are made every month, but all of the evidence points to Giuseppe being in Italy for the Northern Hemisphere summer. Of course that would not prevent Giuseppe supplying funds for someone to deposit at the Rouse Hill branch, but Giuseppe has failed to supply any documentary evidence of this, and instead has been highly selective in supplying his own banking records.
I do accept that Giuseppe made some payments to service the mortgage, although the most consistent source of funds were the contributions made by Claudia (from the social security payments she received). I have mentioned the deposit of $4,455 above. I think it is more likely than not that many of the payments came from Giuseppe. Against that, it is also necessary to bear in mind that Giuseppe has obtained a benefit over the years of accommodation at No 35, and that ultimately on the hypothesis against which this claim falls to be tested the issue is to what extent would equity impose a remedy upon Raffaella in consequence of Giuseppe’s detrimental reliance on his assumption that he would have a proprietary interest in No 35, such remedy being moulded by what is necessary to prevent an unconscientious assertion by Raffaella of her legal rights.
On the evidence, the only substantial (in excess of $10,000) payments established, aside from the $280,000 paid in 2006, are the $57,300 paid by Giuseppe to Raffaella and Mark in April 2018 (evidenced by Giuseppe’s Westpac receipts). All were described as “debt repayments”. One of the payments was made to Mark. There was a deal of contested evidence as to what they were for. None was especially persuasive. I find that they were, as described, repayments of debt, rather than contributions to the purchase of No 35.
I would conclude by holding Raffaella liable to account for the value of the original $280,000 contribution. That reflected slightly more than half the purchase price of $545,000 in 2006. Admitted into evidence was a one page market appraisal by a local real estate agent who referred to recent sales of three comparable properties at $2.05m, $1.855m and $1.975m and who estimated that, as at 24 March 2025, the property would sell for $1.9m - $2m (CB 1096). The reasoning is slender but the conclusion is not implausible. It is overwhelmingly clear that the appreciation in value is attributable not to improvements on the property, but on the general rise in Sydney residential real estate prices. I think equity would not permit Raffaella to gain the entirety of the benefit of the capital appreciation in circumstances where slightly more than half of the acquisition costs came from Giuseppe in circumstances where it was not a gift or a loan but a capital contribution to an asset in which he retained a beneficial interest.
On the hypothesis applicable to this section of these reasons, namely that there should not be a constructive trust, I would disregard all other contributions made by Giuseppe, which are difficult to quantify, bearing in mind the limited extent to which they contributed to value and the benefits received by Giuseppe over the years, and impose a charge on the property to secure the repayment of an amount reflective of 51.4% of its value (280/545 approximately equals 51.4%), to be determined by a sale in the absence of agreement between the parties.

For those reasons, I conclude that Giuseppe succeeds in his primary claim based on a trust. I shall make a declaration to that effect.
I have concluded that Raffaella holds No 35 on constructive trust for Giuseppe, pursuant to the common understanding they shared in 2010 whereby he would provide the balance of the purchase price not lent from CBA as well as service the mortgage payments. Pursuant to that common understanding, Raffaella obtained immediate benefits in excess of some $200,000 of personal indebtedness being repaid, a cash deposit of $15,000, and title to No 35 at a discount through a $167,000 “equity gift”, but also the obligation to repay indebtedness of some $670,000, which would require more than the payments of board from family members living in the house.
That conclusion is founded upon the documents on which Raffaella was cross-examined, my view that her answers did not materially detract from those documents being powerful admissions that the property was not hers beneficially, in contrast to the plausible explanation given by Giuseppe of his letter stating the $280,000 to be a gift, and the fact that according to the settlement sheet and as corroborated by the banking records, Raffaella obtained legal title at a substantial discount and in circumstances where she received significant pecuniary benefits.
I have also found that at least some of the mortgage repayments were made by Giuseppe in the real and practical sense deployed in these reasons – by his placing funds in her 320 account – in accordance with the original agreed position. However, I have also concluded that some (quite possibly, many) repayments were made by Raffaella without having been put in funds by Giuseppe.
To the extent that Raffaella used her own funds in order to meet the difference between board received and the obligations to make repayments to CBA and later Macquarie Bank, she was incurring expenses as a trustee, and has an entitlement to be repaid from trust assets. The starting point is statute. Section 59(4) of the Trustee Act 1925 (NSW) provides that a trustee may reimburse herself, or pay or discharge out of the trust property all expenses incurred in or about execution of the trustee’s trusts or powers. Section 5 defines trust to include a constructive trust, unless the context or subject-matter otherwise indicates or requires. The reasoning in Butterfield v Public Trust [2017] NZCA 367; [2017] NZCCLR 27 at [21]-[22] supports construing “trustee” in s 59(4) as extending to constructive trusts, at least where the trustee acts reasonably and in good faith. There are occasions when a constructive trustee is not entitled to the right of indemnity enjoyed by ordinary trustees: see Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39 (a case of a constructive trust imposed as between vendor and purchaser). However, in the present case, I see no reason to displace the principle, in circumstances where the expenses incurred by Raffaella were for repayment of debt secured over the trust property and for other property expenses such as rates which were an inevitable consequence of ownership of No 35. The position was stated broadly in Rowley v Ginnever [1897] 2 Ch 503 at 507 (which concerned a constructive trustee): “when you find that a person in possession of property has expended money in improving that property, if he turns out not to be the sole and absolute owner there is a presumption in his favour that, on accounting for the property to the other persons interested, he is to be recouped the money so expended to the extent of the improvement”. The existence of such a right of recoupment appears to have been endorsed in Elder’s Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426 at 439; [1963] HCA 48, as well as in Enright v Newton [2021] 2 NZLR 412; [2020] NZCA 529 at [148].
Further, Raffaella’s entitlement to an indemnity would prima facie be secured by a lien over those trust assets: Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1; 99 ALJR 295 at [1].
There are complicated questions which remain unresolved in order to quantify Raffaella’s entitlement to an indemnity. To what extent must Raffaella account for the benefit she received in 2010? Should a distinction be drawn between the discharge of her indebtedness in respect of the Queensland land, and the discharge of her personal loan and the receipt of $14,032.45 on 1 December 2010? To what extent and at what rate does interest accrue on Raffaella’s entitlement to be reimbursed? What is the impact of the new arrangement struck in around 2021 when it was agreed that expenses be split equally? I am also conscious that at this level, both Raffaella and Giuseppe are asserting rights in equity, to which the principles in Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 may apply, such that any relief may be qualified by an obligation to repay a benefit (such as tax benefits) wrongly claimed. Finally, there are complicated factual questions – not assisted by the absence of full banking records for either side – as to the extent to which Giuseppe in fact made funds available to Raffaella to make mortgage repayments and other expenses. None of this was argued. I do not think it would be right to shut Raffaella out of such a claim, which is consequential upon a late unpleaded cross-summons advanced by Giuseppe and Claudia shortly after they obtained legal representation and reflects an incident of the trust for which they contended. Nor would it be right for Giuseppe and Raffaella to be confined to the evidence advanced at this trial to resolve the issues summarised above.
There are a number of ways in which the resolution of the outstanding pecuniary aspects of this litigation may occur, assuming it is not possible for Giuseppe and Raffaella to reach agreement. One is a further exercise conducted by me, which would have the advantage that I have some familiarity with those financial records which the parties chose to place into evidence. Another is a hearing before another judge. A third is a referral to a referee. None is incompatible with a court-annexed mediation.
I shall permit the parties to be heard as to further orders, including costs, although it will be clear from the above that my present view is that there is no reason to depart from the default position in UCPR r 42.1 that costs follow the event in relation to the costs of the trial, although it is also possible that there should be some variation in relation to other costs (for example, costs thrown away by the vacation of the 17 July 2025 hearing).
I make the following orders (the actual address of No 35 appears in the orders entered on JusticeLink but not in these reasons):

Samawi v Faraone

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Family background

Three introductory propositions

The procedural history of the litigation

Payments of money

Approach to factual findings

Overview of testimonial evidence

Legal title to the properties

The acquisition of No 35 in 2006

Acquisition of No 35 by Raffaella in 2010 – the conveyancing documents

The banking records

Raffaella’s bank statements

The defendants’ bank statements

Fabiola’s Westpac account

The purposes of the analysis of the banking records

The acquisition of Qld land in 2007

Contributions from Claudia’s social security payments

Did Raffaella make all the mortgage payments on No 35 necessary to supplement the payments of board by her sisters and the deposits of Claudia’s pension?

Cross-examination

The financial records at the time of the January 2012 emails

April 2021 – Macquarie Bank mortgage repayment

Other matters emerging from the financial records

The tax treatment of No 35 by Raffaella

Raffaella’s admissions

Demeanour

Raffaella’s submissions

Preliminary points

Evidentiary basis of Giuseppe’s trust claim

Common intention and detriment

Consideration

Did Raffaella pay for all of the mortgage repayments?

Did Giuseppe pay expenses of No 35?

Did Giuseppe work on the house?

Other claims

Conclusions and orders

Parties

Legislation Cited (8)

Cases Cited (10)

Cited By (2)