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Catchwords: CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – approval of settlement under s 76 of the Civil Procedure Act 2005 – release of rights under s 95 of the Succession Act 2006 – approvals given and release made – payment of settlement to private trustees under s 77(3) of the Civil Procedure Act 2005

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 76, 77
Succession Act 2006 (NSW) s 95

Cases Cited: Barlin v Gayed [2022] NSWSC 278
Dunn by her Tutor Monica Ross-Maranik v Dunn [2022] NSWSC 1339
Fairhurst v Fairhurst [2012] NSWSC 388
Fisher v Marin [2008] NSWSC 1357
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
Mikhael v Breene (2022) 21 ASTLR 468; [2022] NSWSC 102
Morris v Zanki bhnf Zanki (1997) WAR 260
Murray v Williams [2010] NSWSC 1243
Neil v Jacovou [2011] NSWSC 87
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4

Texts Cited: Justice Geoff Lindsay, ‘The Nature, Scope, Limits and Operation of the Court’s Inherent Protective Jurisdiction’ (5 September 2026 at the 31st Annual Lawyers Learning for Charity Conference)

Category: Principal judgment

Parties: Real Property Proceedings (2024/00238115)
Walter Stephen Snaidero (first plaintiff and first cross-defendant)
Donna Louise Snaider (second plaintiff and second cross-defendant)
Norma Snaidero (defendant and cross-claimant)
Professional Negligence Proceedings (2025/00408349)
Norma Snaidero (plaintiff)
Cater & Blumer Pty Ltd (first defendant)
Charles Hilton Cassimatis (second defendant)

Representation: Counsel:
S Chapple SC (first and second plaintiffs in the Real Property Proceedings)
M Condon SC, A Maroya and N Simpson (defendant and cross-claimant in the Real Property Proceedings, plaintiff in the Professional Negligence Proceedings)
I Griscti (first defendant in the Professional Negligence Proceedings)
HJA Neal and A J Barnett (second defendant in the Professional Negligence Proceedings)
Solicitors:
Addisons (first and second plaintiffs in the Real Property Proceedings)
Mitry Emerson Lewis Lawyers (defendant and cross-claimant in the Real Property Proceedings, plaintiff in the Professional Negligence Proceedings)
Wotton Kearney (first defendant in the Professional Negligence Proceedings)
Colin Biggers & Paisley (second defendant in the Professional Negligence Proceedings)

File Number(s): 2024/00238115; 2025/00408349

Publication restriction: Nil

JUDGMENT

1. In 2015, Niceo and Norma Snaidero granted a lease of a farming property (Farm 16) to their son Walter Snaidero and his wife Donna Snaidero. The term was 10 years. Without intending any disrespect, it is convenient to refer to the members of the family by their first names. At some stage, Walter fell into dispute with his brother Loris Snaidero and his mother, Norma. A third brother, Alan Snaidero, has been aligned with Loris and Norma in the dispute.

2. In October 2022, Loris, on behalf of Norma, commenced a proceeding against Walter and Donna in the NSW Civil and Administrative Tribunal (NCAT), seeking orders terminating the lease. In December 2022, Walter and Donna lodged a caveat over Farm 16. They asserted an equitable interest in Farm 16 arising out of capital improvements they claimed to have made to Farm 16 in reliance on promises made by Niceo and Norma.

3. The dispute was mediated on 21 September 2023. Norma was represented by a solicitor and counsel who attended the mediation. Walter and Donna were represented by their solicitor, who also attended the mediation. The mediation was conducted by an experienced barrister. The parties reached a settlement and entered into a Heads of Agreement (HoA) that day. The HoA was expressed to be immediately binding: cl 7. Central to the HoA were Norma’s promise to transfer Farm 16 and associated water entitlements to Walter and Donna in consideration of the sum of $1,662,500: cl 2.

4. The HoA was not performed. Walter and Donna commenced Equity Division proceeding number 2024/00238115 (Real Property Proceeding) against Norma seeking orders for specific performance of the HoA. Norma by her defence and cross-claim alleged that Walter and Donna had engaged in unconscionable conduct; invoked the Contracts Review Act 1980 (NSW); and sought to have the HoA set aside.

5. Norma is also the plaintiff in Common Law Division proceeding number 2025/00408349 (Professional Negligence Proceeding). Norma claimed damages in contract and tort from two defendants, a firm of solicitors and a barrister, who had acted for her at the time of entry into the HoA. Her basic complaint was that they had failed properly to advise her with respect to the HoA, which she contended she would not have entered had she been properly advised.

6. Norma is aged 93. Loris was appointed her tutor in the Real Property Proceeding and the Professional Negligence Proceeding on or about 23 July 2026.

7. The parties to both proceedings have agreed to settle them in summary as follows.

8. The parties to the Real Property Proceeding have agreed to settle it by consent orders requiring them specifically to perform the HoA, and providing for Norma to pay Walter and Donna’s costs on the ordinary basis up until 10 August 2026. Two matters concerning the proceedings and the settlement are important.

9. It is not disputed that Norma either commenced proceedings “under legal incapacity” or “during the course of the proceedings, [became] a person under legal incapacity” within the meaning of s 76(1)(a) or (b) of the Civil Procedure Act 2005 (NSW) (CPA). That being so, and as explained further below, the parties require and seek the Court’s approval of that agreement to settle pursuant to s 76(4). Moreover, Norma seeks an order under s 77(3) that the settlement funds be paid to certain persons as trustees for her under a trust deed, disturbing the default position under s 77(2) that the funds recovered are to be paid into Court.

10. The consent orders also provide for (and thus the settlement to which they give effect should be understood to be subject to) the Court’s approval pursuant to s 95 of the Succession Act 2006 (NSW) (Succession Act) of a release given by Walter in cl 6 of the HoA of any right to claim pursuant to ch 3 of that Act out of the estate and notional estate of Norma.

11. The parties to the Professional Negligence Proceeding have agreed by a deed of settlement made on 17 August 2026 to settle that proceeding, subject (among other things) to Court approval pursuant to s 76. The terms of that settlement are confidential.

12. In each case, the Court should give its approval and the orders sought should be made.

Succession Act s 95 release

11. It is convenient to begin with the s 95 release. That section provides:

95 Release of rights under Chapter

(1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.

(2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order.

(3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person.

(4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether—

(a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and

(b) it is or was, at that time, prudent for the releasing party to make the release, and

(c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and

(d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

(5) In this section—

release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to—

(a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and

(b) an agreement to execute such an instrument.

12. Clause 6 of the HoA provides:

“Walter releases Norma and the executors or administrators of her estate from any right to claim pursuant to chapters 3 of the Succession Act out of the estate and notional estate of Norma. This release is subject to approval by the Court pursuant to section 95 of the Succession Act 2006. Walter must do all things necessary to support any application for approval.”

13. The HoA contains a number of infelicities or errors of drafting, as is not uncommon in such documents negotiated and entered into at a mediation. Nothing turns on that for present purposes. In the language of s 95(3), the release in cl 6 is plainly “a release in relation to the whole … of the estate [and] notional estate of” Norma.

14. The applicable principles were discussed in Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [96]-[108] (Ward JA, Meagher and Gleeson JJA agreeing), to which I have had regard. Ward JA summarised the practical task facing a judge hearing a s 95 application as follows at [164]:

“In a practical sense, what the primary judge had to assess was whether it was advantageous, prudent, and fair and reasonable from the perspective of someone in the position of the first respondent to agree to give up any further claim on the deceased’s estate and any future claim on her mother’s estate for a settlement in the amount for which the Deed of Release provided (and payable in the circumstances there provided).”

15. As to the matters in s 95(4)(a), I am satisfied that it is (and it was at the time that the HoA was made) to Walter’s advantage, financially and otherwise, to give the release. As to financial advantage, it is not contested that the value of Farm 16 and associated water entitlements significantly exceeds the consideration payable of $1,662,500. That difference is explained in part by the fact that by cl 3 of the HoA, Walter has agreed to indemnify Norma against any capital gains tax payable by reason of the transfer. The difference is also explained in part by Walter and Donna’s claim to be entitled to an equitable interest in Farm 16. But that claim was contested, and in the absence of the HoA it would have had to be litigated. Success of the claim was not certain, which meant the claim was of uncertain value. By contrast, the settlement reached in the HoA gave Walter the certainty of outright ownership of the whole of Farm 16. That was a very substantial financial advantage. The release in cl 6 may be seen as an essential part of the overall bargain.

16. As to other advantages, the release was part of resolving a bitter family dispute. That had already led to the NCAT proceedings. The dispute among the three brothers about ownership of Farm 16 also had the potential to continue after Norma’s death (whether in the form of a family provision claim or in litigation asserting an equitable interest founded on estoppel). The HoA thus provided not only a degree of financial certainty, but also significantly reduced the scope for further turmoil in the family.

17. As to s 95(4)(b), the release was and is prudent. It was a necessary part of a bargain which replaced the uncertainty, stress and costs risk of likely future litigation with the certainty and immediacy of present ownership: see Mikhael v Breene [2022] NSWSC 102; (2022) 21 ASTLR 468 at [23] (Ward CJ in Eq).

18. As to s 95(4)(c), as the product of arm’s length negotiation at a formal mediation, the release was, and is, fair and reasonable. The fact that Walter, advised by a solicitor, gave the release as part of the mediated settlement of a larger dispute is itself a matter from which to infer that he considered the release to be fair at the time it was given: see Neil v Jacovou [2011] NSWSC 87 at [64] (Slattery J).

19. As to s 95(4)(d), Walter has provided an affidavit deposing to having received independent advice in relation to the release and to having given due consideration to that advice. He also deposes to considering the release to be to his financial advantage, prudent and on terms that are fair and reasonable.

20. To the extent that it is relevant as part of “all the circumstances of the case”, Norma submits by her tutor that the release is advantageous to her (as it brings finality to a protracted and uncertain dispute); that it is fair to her by reason of the purchase price and the settlement figure payable by her former lawyers in the related settlement of the Professional Negligence Proceeding; and that she has taken independent legal advice and consented to the agreement. I have no reason to doubt those propositions.

21. In all the circumstances of the case, I consider it appropriate to approve the release and I will do so.

The settlements: CPA s 76

22. CPA subsections 76(3) and (4) provide:

(3) Except with the approval of the court, there may not be:

(a) any compromise or settlement of any proceedings to which this section applies, or

(b) any acceptance of money paid into court in any such proceedings,

as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).

(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.

23. As noted above, s 76 applies to Norma. Accordingly, approval pursuant to s 76(4) is required with respect to each agreement for settlement.

24. The court’s function on an application for approval is essentially protective. Hammerschlag J summarised the relevant principles in Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29] as follows:

“The principle is that for the Court to grant approval for a compromise to be entered into by the disabled person it must form the view that it is beneficial to his or her interest. A compromise should be assented to by her tutor and there should be opinions from his/her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disabled person: Re Ley’s Trusts [1964] 1 WLR 640.”

25. As Hallen AsJ said in Fairhurst v Fairhurst [2012] NSWSC 388 at [32], quoting Fisher v Marin [2008] NSWSC 1357 at [41] (Rothman J): “the test may be described as whether the risk to the plaintiff, of losing that which is already agreed, is outweighed by the possibility of receiving more if the matter were to go to hearing”.

26. In the present case the Court has the benefit of the confidential affidavits of Norma’s tutor Loris (who supports the settlement) and of her solicitor Mr Calabretta. Mr Calabretta annexes a confidential memorandum of advice given by Norma’s senior and junior counsel dated 17 August 2026, with the contents of which the solicitor agrees. Counsel’s memorandum carefully analyses Norma’s prospects of success in each proceeding, with a close eye to various forensic considerations that counsel are best placed to evaluate, as well as addressing the interrelationship of the two proceedings and of the two settlements. Counsel strongly support the Court’s approval of the settlements.

27. Bringing my own independent judgment to bear on the material before the Court, I am comfortably satisfied that the confidential terms on which the Professional Negligence Proceeding are to be settled are beneficial to Norma, and that the risk of losing the benefit of that settlement outweighs the possibility of receiving more if the matter were to go to hearing. Notwithstanding that the effect of the settlement of the Real Property Proceeding is in substance capitulation by Norma, I am also comfortably satisfied that, particularly given the relationship between the two settlements, the settlement of the Real Property Proceeding is beneficial to Norma.

28. I will make orders accordingly approving each settlement.

The s 77 issue

29. Section 77(1) of the CPA provides that the section applies, relevantly, “to money recovered in any proceeding on behalf of … [in effect, a person to whom s 76 applies] … pursuant to a compromise, settlement, judgment or order in any proceeding.” As noted above, the basis on which s 76 applies to Norma is legal incapacity: s 76(1)(a) or (b).

30. Norma accepts that the purchase money to be paid by Walter, and the settlement sum to be paid under the confidential settlement deed, are caught by s 77(1).

31. Section 77(2) then creates a default position: “All money recovered on behalf of a person referred to in subsection (1) is to be paid into court.” The purpose of that provision is again protective of persons under, inter alia, legal incapacity.

32. The default position is, however, subject to subs (3):

Despite subsection (2), the court may order that the whole or any part of such money not be paid into court but be paid instead to such person as the court may direct, including:

(a) if the person is a minor, to the NSW Trustee and Guardian, or

(b) if the person is a protected person, to the manager of the protected person’s estate.

33. It should be noted that neither par (a) nor par (b) applies in this case and that, in any event, both paragraphs are preceded by the word “including”. Section 77(3) thus confers a discretion, which is not fettered by either paragraph, to depart from the default position in s 77(2) by ordering that the settlement monies be paid “to such person as the court may direct”. The matters relevant to the exercise of that discretion in this case are discussed below. But it is evident from the provision’s protective purpose that the touchstone of the power is what is in the best interests of the person under legal incapacity, having regard to the nature and extent of the incapacity and the need to protect the person in light of any vulnerability which their incapacity creates.

The initial proposal: payment directly to Norma

34. Norma by her tutor initially asked the Court to exercise its power under subs (3) to order that the amounts payable under the settlements be paid directly to Norma, rather than into court.

35. That was so despite the fact that a tutor had been appointed to Norma in the litigation on the basis that she was under legal incapacity. Norma submitted that the test of legal incapacity is that stated in Murray v Williams [2010] NSWSC 1243 at [26] (Hammerschlag J), quoting Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 at [75], namely:

“… whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines is the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue a defendant claim, I can see no reason why the law — whether substantive or procedural — should require the interposition of a next friend or guardian ad litem.”

36. There was no suggestion that the appointment of a tutor was in error or that Norma now has legal capacity. That being so, and in light of the default position in s 77(2), it was not obvious that it would be appropriate to order that the amounts payable under the two settlements, which combined form a relatively large sum, be paid directly to Norma.

37. However, legal incapacity (in the sense of an inability to understand the issues on which the person’s instructions are likely to be necessary in the course of proceedings) is not the same as financial incapacity. Nor is legal incapacity to be equated with a lack of capacity to manage one’s own affairs (cf. s 76(1)(c) and s 77(1)(c). Sections 76 and 77 are directed to a very wide range of circumstances. A person may lack legal capacity while retaining varying degrees of understanding of financial matters: see, e.g., Barlin v Gayed [2022] NSWSC 278 at [11].

38. Material in the confidential affidavits touched on matters relevant to this question. So did the “open” affidavit of Norma’s granddaughter Sophia Snaidero. She gave evidence that usually her father Alan, her uncle Loris or Sophia herself takes Norma to the grocery store where “she makes all decisions about what she will spend her money on”; that Norma pays with a tap and go bankcard for her groceries; and that she is careful and selective with how she spends her money.

39. On the other hand, Sophia gave evidence that since Norma’s bank stopped accepting cheques from a cheque-book, Norma herself has not been able to withdraw cash. Instead, she “has signed over a bank card for [Sophia] and Loris to use. This way one of us can go to the ATM or teller and withdraw cash for her.” Sophia deposes that Norma “will use the withdrawn cash over about a month period for her expenses such as groceries, bills, petrol for her car and the farm ute and shopping. [Norma] still has an orange farm, so her expenses include upkeep for the farm.” Further, “[s]ince around 2021 Loris has managed the payment of [Norma’s] bills. [Norma] is aware that Loris does this and she permits him to do this.” Sophia also said that “[w]hilst [Norma] requires assistance with her tax returns and withdrawing funds from the bank in person, she does not need assistance with day-to-day spending.”

40. The evidence thus presented a picture of Norma as someone well capable of making day-to-day decisions about spending relatively small amounts of money, but who may lack the capacity to make more significant decisions about, for example, investing a substantial sum of money. Although the evidence was limited, it appeared that in significant respects, practical control of Norma’s finances (or at least of her cash resources) already rested with members of her family, in particular Loris.

41. It followed that the practical effect of an order that the large sum of money payable to Norma under the settlements be paid directly to her would likely be to entrust Loris (or perhaps Loris and Alan) with practical control of that money, without imposing any formal control on them. I expressed concern about that proposal, particularly in circumstances where Loris and Alan were beneficiaries under Norma’s will and each asserted that he had loaned Norma money.

42. Norma by her tutor sought additional time to formulate a revised proposal. I directed that the matter be listed before me for further argument as to the identity of the person to whom any monies payable for the benefit of Norma under settlement of each proceeding should be paid, and as to the terms on which those monies should be held.

The revised proposal: a private trust

43. Norma by her tutor now advances a proposal, modelled on that approved by Kunc J in Dunn *by her Tutor Monica Ross-*Maranik v Dunn [2022] NSWSC 1339, for the settlement monies to be held on trust for Norma on the terms of a trust deed which has already been settled. Significant features of the trust are as follows:

44. the initial trustees are Loris, Alan and John Farronato (who has been Norma’s accountant since 1999): cl 6.2;

45. Mr Farronato, as Appointor, has powers to remove and appoint trustees: cls 1.1, 6.1;

46. the trustees are to pay $2,275 into Norma’s bank account each month: cl 10.1;

47. decisions are by majority: cl 6.6; but

48. various significant exercises of power require the Appointor’s written approval: cl 6.7. These include the repayment of any loan owing to Loris or Alan; payment of more than $60,000 per annum in total (excluding the cl 10.1 monthly payment); and varying or revoking the trust deed.

49. For reasons which follow, and which are consistent with the principles summarised by Kunc J in Dunn at [29], I consider that the proposal is an appropriate structure to hold the settlement monies in the circumstances of this case.

50. It is not necessary for present purposes to recount the history of the Court’s jurisdiction with respect to approval of settlements. It may well be, as the Full Court of the Supreme Court of Western Australia said in Morris v Zanki (1997) 18 WAR 260 at 286, that there is (or at least has been) a “pre-disposition” in favour of having the Public Trustee hold funds awarded to a plaintiff under a legal disability. But the court recognised that this was “no more than a pre-disposition”; that it remained necessary to “examine all of the circumstances and decide what is in the best interests of the person for whose benefit the funds are to be held”; and that if there is “good reason” for preferring a private trustee, such can be chosen.

51. As noted above, the s 77(3) power to order that settlement monies be paid “to such person as the court may direct” is not on its face fettered. But there is no doubt that the power must be exercised having regard to its scope, object and purpose, including the circumstances which engage ss 76 and 77 and the protective purpose of those provisions when read together in light of the Court’s protective jurisdiction in respect of persons under incapacity: as to which, see generally Justice Geoff Lindsay, ‘The Nature, Scope, Limits and Operation of the Court’s Inherent Protective Jurisdiction’ (5 September 2026 at the 31st Annual Lawyers Learning for Charity Conference) including at [70]. Hence, as Kunc J said in Dunn at [20], “the proposed payment of settlement funds to family members or others acting as private trustees has been approached with hesitation as a matter of discretion, rather than reading down the words ‘to such person as the court may direct’ in s 77(3)”; see also at [29](1). That is to say, although the power is discretionary, the overarching protective purpose will generally call for a cautious approach where it is proposed to pay settlement monies to family members. There must be some good reason to do so.

52. As Kunc J said at [29](2), the “paramount consideration is what is in the best interests of the person under legal incapacity”. Since the power in s 77(3) is to be exercised having regard to the protective purpose of ss 76 and 77, regard should be had to the particular need for protection: that is, to the nature and extent of the person’s incapacity and any vulnerability it creates. Each case will turn on its own particular facts: Dunn at [29](3). The range of persons and situations to which ss 76 and 77 may apply is very broad. At one end of the scale is the infant or the person who has suffered a catastrophic brain injury. Norma may be seen to be towards the other end of the scale. For example, the evidence in this case indicates that Norma is well capable of making day to day decisions about spending her money on, at least, ordinary shopping and, it seems, some aspects of running her farm. That being so, there is no reason why she should not have regular access to appropriate sums of cash for those purposes, as is provided for in cl 10.1.

53. Moreover, a person’s best interests include not only their financial interests, but also their health and well-being, their sense of dignity and autonomy, and the prevention of unnecessary anxiety. As Justice Lindsay emphasised recently extrajudicially in the paper referred to above, the exercise of protective jurisdiction often involves “management of risk in allowing the vulnerable person as much agency for the conduct of his or her own affairs as circumstances reasonably allow” (at [13]). Again for example, the evidence in this case indicates that, as a 93 year old woman who still lives on her own on a farm, Norma has a strong sense of independence. That is a further good reason for ensuring that she has regular access to cash which is wholly within her control.

54. Evidence filed in connection with the revised proposal indicates that Norma does not want a stranger to manage her money because she worries about her ability to communicate with that person and is concerned that they will not carry out her wishes. That concern is exacerbated by Norma’s difficulties of language in English. It is not insignificant that the evidence indicates that Norma trusts Mr Farronato and has confidence in him to act honestly. It appears that Norma does not consider it necessary for Mr Farronato to be involved in her family’s financial arrangements. On the other hand, she would prefer a trust set up with Loris and Alan involved as trustees rather than having her money controlled by someone she does not know. Those concerns are all matters that go to Norma’s well-being. It is also in Norma’s best interests to minimise her exposure to causes of stress, given her health. To the extent that it is possible to take these concerns into account in devising a structure in which to hold her settlement funds, it is preferable to do so, provided always that there is sufficient protection against the risk of “conflict of interest or, worse, corrupt dealing” with those funds: Dunn at [29](4). I consider that the protective mechanisms in this case achieve that object.

55. Although each case will turn on its own facts, there are certain parallels between the present case and Dunn. Kunc J in Dunn at [31] identified what his Honour considered to be the dispositive considerations in the circumstances of that case as follows (noting the corresponding factors in this case).

56. The court was satisfied as to the fitness of the trustees. Two were children of the person under legal incapacity (one an architect/project manager and the other a dentist). The third was a very experienced accountant who was independent of the family members. In the present case, Mr Farronato is a very experienced accountant with a long history of providing services to Norma going back to 1999. He has no other relationship with Norma, and he did not meet Loris or Alan until Norma’s husband Niceo died around five years ago. A colleague, Ms Smith, deposes to his honesty, integrity, good character and experience in the operation and administration of trusts. There is good reason to accept the fitness of both Loris and Alan, each of whom also has relevant experience. Loris has worked in residential, commercial, agricultural and self-managed superannuation fund lending for about 25 years. Alan has extensive experience in assisting his mother to operate her farm.

57. Given Mrs Dunn’s advanced age (92 years) and medical situation, the trust was likely to have a relatively short period of operation in which the trajectory of her needs was likely to be both limited and clear. Similar considerations broadly apply here.

58. The Court was satisfied that the accountant’s involvement would ensure independent advice and supervision, and the estimate of his professional fees appeared fair and reasonable in all the circumstances. In the present case, the supervision for which clause 6.7 provides affords considerable protection to Norma’s financial interests, while the provision for ongoing automatic payments to Norma may reduce the need for regular involvement of Mr Farronato and the associated cost. Mr Farronato’s fees for his services as trustee appear fair and reasonable, and he has said that they will not increase unless there are legislative changes, for example an increase in the Goods and Services Tax.

59. In the present case each of those factors supports the exercise of discretion in favour of the private trust proposal.

60. A further reason for preferring the structure proposed on behalf of Norma to the alternative, which is for the NSW Trustee and Guardian to hold the settlement monies on Norma’s behalf, is the likely cost. The evidence discloses that the NSW Trustee and Guardian’s one-off and ongoing fees are likely to be substantial, and are expected to exceed those to be charged by Mr Farronato.

61. There were four matters in Dunn which his Honour required to be attended to before the making of orders. None of them causes a difficulty in this case.

62. The first was that the trust be settled. That has already occurred in this case.

63. The second was that the trustees be made parties to the proceedings. His Honour identified two reasons. One was so that any undertakings that the trustees were to give and any agreements among them would be subject to the control of the Court. There are no corresponding undertakings or agreements in this case. The second reason was to ensure that the trustees could exercise the liberty reserved to a party to make further application to the Court in relation to the working out of the orders giving effect to the settlement that the Court was to make. That does not appear to be necessary in the circumstances of this case, and if it became necessary at some point the trustees could apply to be joined.

64. The third related to a particular asset (a refundable accommodation deposit at a retirement village) which has no relevance in the present case.

65. The fourth was to include a requirement for the Appointor’s approval for payments above a particular annual ceiling. That has been addressed in the present case in cl 6.7.

66. The main causes for hesitation in this case are the risk of a conflict of duty and interest arising out of the fact that Loris and Alan are beneficiaries under Norma’s will, and the fact that each asserts that Norma owes him money (apparently on account of paying her legal fees).

67. Both Loris and Alan acknowledge their status as beneficiaries under the will in their affidavits filed in connection with the revised proposal. The most immediate concern is that they stand to inherit Norma’s farm, and it would be in their interests to apply Norma’s settlement funds to the improvement of the farm so as to increase its capital value. On the other hand, it appears that Norma’s farm is in need of maintenance and repairs which have been neglected for some time. It appears to be in Norma’s interest that those matters be attended to. On this issue, as in all aspects of their role as trustees, each of Loris and Alan (as well as Mr Farronato) must bear in mind their fiduciary obligations not to exercise their powers in a position of conflict or so as to obtain an unauthorised benefit. Beyond that, I consider that the solution in cl 6.7(b) of the trust deed — a cap on spending without the written approval of the Appointor — provides appropriate protection of Norma’s interests.

68. As to the loans, cl 6.7(a) provides that the repayment of any loan to Loris or Alan from the trust funds requires the written approval of the Appointor. It will be for Mr Farronato to satisfy himself that such loans were in fact made and are repayable. In this respect, the power to repay each loan in the sum of $125,000 conferred by cl 11.2 of the trust deed (which is expressly subject to the Appointor’s approval under cl 6.7) assumes the existence of the loans; it does not establish that they exist. As senior counsel for Norma’s tutor Loris said in argument, the clause does not give rise to an estoppel by deed as to the existence of any such loan.

69. In the result, I consider there to be good reason to prefer the revised proposal, whereby the settlement monies are to be held for Norma on the terms of the trust deed before me, to any alternative course.

Conclusion and orders

58. I make the following orders, which are substantially in the form agreed by the parties in each proceeding, by consent.

59. In the Real Property Proceeding:

60. Order that the parties perform the Heads of Agreement dated 21 September 2023, a copy of which is Annexure A to the affidavit of Walter Stephen Snaidero made 13 August 2026.

61. Pursuant to Order 1 above, the parties are to attend to settlement of the sale of the property known as Farm 16, 270 McNamara Road, Tharbogang NSW 2680 (Auto Consol 4894-196) (Farm 16) via PEXA within 42 days of these orders or such other date as the Court determines.

62. The Defendant must specifically perform the Heads of Agreement including by:

(a) performing the following in PEXA:

(i) drafting and completing a transfer in respect of Farm 16 to the First Plaintiff and the Second Plaintiff; (ii) completing the Financial settlement schedule; (iii) subject to the Plaintiffs’ paying the balance of the purchase price of $1,632,500 in accordance with orders 4(a) and 7 below, sign the PEXA workspace once the above has been finalised before the due settlement date and time;

(b) instructing Murrumbidgee Irrigation Ltd to transfer to the Plaintiffs her 1497 megalitres of General Security Water Entitlements and 1497 Delivery Entitlements held with Murrumbidgee Irrigation Ltd and the associated shares in Murrumbidgee Irrigation Ltd held in connection with Farm 16; and (c) using her best endeavours to assist in obtaining a 15-year Capital Gains Tax concession in respect of the transfer of Farm 16, including but not limited to, by instructing her accountant to do all things reasonably necessary to seek such a concession and providing the said accountant with such information as he/she may reasonably require.

4. The Plaintiffs must specifically perform the Heads of Agreement including by:

(a) paying the sum of $1,632,500 to Loris Pietro Snaidero, Alan Louis Snaidero and John Paul Farronato as trustees of the Norma Snaidero Trust in return for, and concurrently with, the transfer of Farm 16; and (b) indemnifying the Defendant from any Capital Gains Tax liability arising from the transfer of Farm 16, including for the costs incurred in relation to obtaining the 15-year Capital Gains Tax concession in respect of the transfer of Farm 16.

5. The release given in cl 6 of the Heads of Agreement by the First Plaintiff of his rights to make a claim for a family provision order in respect of the estate and notional estate of the Defendant is approved pursuant to section 95 of the Succession Act 2006 (NSW).
6. The statement of cross-claim filed by the Defendant on 21 August 2024 is dismissed.
7. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the sum of $1,632,500 payable pursuant to orders 3(a)(iii) and 4(a) above be paid to Loris Pietro Snaidero, Alan Louis Snaidero and John Paul Farronato as trustees of the Norma Snaidero Trust and held on the terms of the trust deed for the Norma Snaidero Trust settled on 15 September 2026.
8. The proceedings be listed for directions before McHugh JA at 9.30 am on 13 October 2026.
9. The Court grants liberty to apply, exercisable by notice given to the Associate to McHugh JA, for any order necessary or desirable to give effect to order 1 hereof.
10. If the sale of Farm 16 is completed in accordance with order 2, the parties are to submit short minutes of order to the Associate to McHugh JA to the effect that:

(a) the directions hearing referred to in order 8 above be vacated; (b) the proceedings be dismissed, to the intent that the dismissal is without prejudice to the parties’ rights to bring proceedings to enforce the Heads of Agreement; and (c) the Defendant pay the costs of the Plaintiffs on an ordinary basis up to 10 August 2026 as agreed or assessed and otherwise there be no order as to costs.

11. Pursuant to section 76(4) of the Civil Procedure Act 2005 (NSW), the agreement of the parties to settle these proceedings (to which orders 1-7 and 10 above give effect) be approved.

12. In the Professional Negligence Proceeding:

13. Pursuant to section 76(4) of the Civil Procedure Act 2005 (NSW), the agreement of the parties to settle these proceedings on the terms set out in the Deed of Settlement and Release (Settlement Deed) appearing at Annexure A to the Confidential Affidavit of Stefano Calabretta affirmed on 17 August 2026 be approved.

14. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the sum payable pursuant to clauses 3.1 and 3.2 of the Settlement Deed be paid to Loris Pietro Snaidero, Alan Louis Snaidero and John Paul Farronato as trustees of the Norma Snaidero Trust and held on the terms of the trust deed for the Norma Snaidero Trust settled on 15 September 2026.

15. The proceedings are dismissed.

16. All previous costs orders in the proceedings are vacated.

17. There is no order as to costs as between the Plaintiff and the Defendants.

18. For the purposes of section 91 of the Civil Procedure Act 2005 (NSW), the dismissal in order 3 is made on terms which prevent the Plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings against the Defendants.

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