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[2025] NSWSC 733
Supreme Court of NSW
2025-07-10
McGrath J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Toppi v Toppi (No 3) [2025] NSWSC 733
Hearing dates: 17–19 February, 5 March and 16 April 2025
Date of orders: 10 July 2025
Decision date: 10 July 2025
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: McGrath J
Decision: See [525]–[535]
Catchwords: EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment
SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time
SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made
COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 65
Evidence Act 1995 (NSW), s 136
Succession Act 2006 (NSW), ss 57, 58, 59, 60
Cases Cited: Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277
Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; [1969] HCA 55
Alexiou v Alexiou [2024] NSWSC 1340
AMP Bank Ltd v Brown [2017] NSWSC 313
Anderson v Yongpairojwong [2023] NSWSC 1359
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Angius v Angius [2025] NSWCA 113
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Baker v Baker [2024] NSWSC 559
Bassett v Bassett [2021] NSWCA 320
Blendell v Blendell [2020] NSWCA 154
Broadus v Cradduck [2025] NSWSC 402
Camernik v Reholc [2012] NSWSC 1537
Cappello v Scrivener (No 2) [2021] NSWSC 168
Chalik v Chalik [2025] NSWCA 136
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Collings v Vakas [2006] NSWSC 393
Cringle v Cringle [2018] NSWSC 1558
Dering v Earl of Winchelsea (1787) 1 Cox 318; (1787) 29 ER 1184
DJ Singh v DH Singh [2018] NSWCA 30
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gaskin v Ollerenshaw [2010] NSWSC 788
Georgopoulos v Tsiokanis [2022] NSWSC 563
Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Hampson v Hampson [2010] NSWCA 359
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Keep v Bourke [2012] NSWCA 64
Lalic v Lalic [2022] NSWSC 31
Lavin v Toppi (2014) 87 NSWLR 159; [2014] NSWCA 160
Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4
Madden-Smith v Madden [2012] NSWSC 146
Mahoney v McManus (1981) 180 CLR 370; [1981] HCA 54
Moore v Randall [2012] NSWSC 184
Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561
Owners — Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Portis v Green [2017] NSWSC 1489
Pulitano v Pulitano [2019] NSWSC 1688
Rada v Smith [2024] NSWSC 273
Re Bar Machiavelli Pty Ltd [2018] NSWSC 1395
Rodny v Weisbord [2024] NSWCA 183
Sgro v Thompson [2017] NSWCA 326
Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Stone v Stone [2016] NSWSC 605
Stone v Stone [2019] NSWSC 233
Taouk v Louis (No 1) [2014] NSWSC 656
The Estate of Giovanna Toppi [2024] NSWSC 1115
Thomas v Pickering [2011] NSWSC 572
Toppi v Toppi (No 2) [2024] NSWSC 1363
Touma v Highfields Australia Pty Ltd [2024] NSWCA 160
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Watson v Foxman (1995) 49 NSWLR 315
WFM Motors Pty Ltd v Bar M Pty Ltd [2022] NSWSC 1500
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
White v Barron (1980) 144 CLR 431; [1980] HCA 14
Texts Cited: Niccolo Machiavelli, The Prince (1513)
Oxford English Dictionary, online 2nd ed, May 2025
Sir Thomas Bingham, “The Judge as Juror: the Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1
Category: Principal judgment
Parties: Paola Toppi (Plaintiff)
Walter Toppi (Defendant)
Representation: Counsel:
P Beazley (Plaintiff)
M Condon SC (Defendant)
Solicitors:
Beazley Lawyers (Plaintiff)
Levitt Robinson Solicitors & Attorneys (Defendant)
File Number(s): 2021/00323980
Publication restriction: Nil
INTRODUCTION
RELEVANT FACTS
The Toppi family members
Witnesses and general observations about credibility and reliability
Paola
Neil
Rosa
Walter
Caterina
Giovanna’s wills
2013 Will
2017 Will
2018 Will
January 2019 Will
August 2019 Will
2020 Will
History of these proceedings
Giovanna’s first restaurants in Sydney
Macleay Street property
Machiavelli
The Republic Bar
Caterina’s takeover and sale of Machiavelli
500 George Street
Hospitality Placements
Luxe Studios
Purported loan from Giovanna to Paola
Café 29
Polleria
Sciue Sciue
Bar Machiavelli
Bar M
WFM proceedings against Bar M Pty Ltd
Toppi Bar & Restaurant
Toppi Martin Place and Paola’s application to reopen her case
Giovanna’s gambling and financial difficulties
Giovanna and Paola – relationship breakdown and Giovanna’s death
Walter’s circumstances and financial position
Walter’s relationship with his immediate family
Walter’s living arrangements
Walter’s health
Walter’s employment and earning capacity
Walter’s financial circumstances
Withdrawals from Giovanna’s WBC account
Paola’s circumstances and financial position
Quantum of Paola’s claim
ISSUE 1: PAOLA’S APPLICATION TO REOPEN HER CASE
Legal principles
Consideration
Truly fresh evidence
Evidence available but not adduced at the 17–19 February 2025 hearing
Conclusion on application to reopen
ISSUE 2: PAOLA’S OUT OF TIME APPLICATION
Legal principles
Paola’s submissions
Walter’s submissions
Consideration
ISSUE 3: PAOLA’S APPLICATION FOR FAMILY PROVISION ORDER
Legal principles – generally
Legal principles – duty to disclose financial position
Legal principles – estrangement
Paola’s submissions
Walter’s submissions
Consideration
Section 60(2)(a) of the Act
Section 60(2)(b) of the Act
Section 60(2)(c) of the Act
Section 60(2)(d) of the Act
Section 60(2)(e) of the Act
Section 60(2)(f) of the Act
Section 60(2)(g) of the Act
Section 60(2)(h) of the Act
Section 60(2)(i) of the Act
Section 60(2)(j) of the Act
Section 60(2)(k) of the Act
Section 60(2)(m) of the Act
Section 60(2)(n) of the Act
Section 60(2)(p) of the Act
Conclusion
Observations about costs
Careful consideration by Walter
ORDERS
The plaintiff, Paola Toppi, seeks provision under s 59 of the Succession Act 2006 (NSW) (the Act) from the estate of her late mother, Giovann****a Toppi. In this judgment, for convenience I will refer to each of the relevant family members and other witnesses by their first names without intending any overfamiliarity or disrespect.
Giovanna died on 3 November 2021, aged 85 years. Unfortunately, as is common in many family provision applications, Paola’s application is made in circumstances where members of the Toppi family have experienced significant breakdowns in their relationships, with several of them no longer on speaking terms. This was most notably the case between Paola and Giovanna, whose relationship had completely broken down at the time of Giovanna’s death.
Giovanna was a restaurateur of great renown and success. For much of Giovanna’s adult life, she was the proprietor of the iconic “Machiavelli Ristorante Italiano” in Sydney, where authentic Italian cuisine was served in the Neapolitan tradition. Under Giovanna’s hand, and with the initial assistance of Paola, Machiavelli developed a reputation as a venue where Australian political and business leaders and powerbrokers went to eat, drink and confer over the issues of the day. A select few often sat beneath their own images which adorned the walls, perhaps in furtherance of one of the Machiavellian creeds explained by Niccolo Machiavelli in The Prince (1513), that:
It is much safer to be feared than loved when one of the two must be lacking.
Given the heights of their joint achievements at Machiavelli, the subsequent deterioration and fracture of the relationship between Giovanna and Paola is a story of considerable anger, sadness and distress among the members of the Toppi family.
For the reasons I have set out below, I have determined that provision from the estate of Giovanna should be made in favour of Paola by releasing her from any liability she may have to the estate on account of Giovanna’s right to contribution as a co-guarantor and the making of a payment to Paola of $500,000, less any amount that Paola is to pay to Giovanna’s estate following the resolution of the issue of costs in these proceedings, specifically extant costs orders which have been made against Paola in favour of Giovanna’s estate.
(a) Paola, currently aged 61 years; (b) Caterina Tarchi, currently aged 56 years; and (c) Walter Toppi, currently aged 53 years.
Paola was born in Naples, Italy. Paola is married to Neil Cunningham, her husband of 35 years. Paola and Neil live in a rented apartment in Elizabeth Bay. Paola and Neil have two adult sons, Marco Cunningham (aged 24 years) and David Cunningham (aged 23 years). Marco lives in Melbourne, although he plans to move back to Sydney this year, and David lives in Sydney. Marco has a daughter, who is the granddaughter of Paola and Neil.
Caterina was born in Sydney and presently lives in an apartment that she owns in Bondi. Caterina has three sons, Massimo, Carlo and Luca. Caterina and Paola have been estranged for many years.
Walter was born in Sydney. Walter has a partner, Natalie Fernandez. Natalie is the daughter of Nadia Fernandez. Walter resided with Giovanna for nearly his entire adult life. For some time, Giovanna, Walter and Natalie resided together in a rented apartment in Double Bay. Immediately prior to Giovanna’s death, Walter and Natalie were living with Giovanna in a furnished apartment in Bondi Junction while Giovanna and Walter searched for a property to purchase. Walter presently lives in a rented apartment in Maroubra. Natalie resides with Nadia and spends up to two nights a week with Walter.
Paola and Walter are the protagonists in the proceedings, with Paola bringing the claim for provision from Giovanna’s estate and Walter defending the claim in his capacity as administrator of the estate. The relationship between Walter and Paola has been broken since at least August 2019.
While Caterina gave evidence in these proceedings, she is not a beneficiary of Giovanna’s estate and makes no claim for provision from it.
Most unfortunately, Paola’s claim and Walter’s defence of it have in some respects unnecessarily reopened old wounds and descended into a re-tracing of the many squabbles of the Toppi family, a significant number of which are of only peripheral relevance to the determination of the application before me.
There was a great deal of factual material placed before me. Regrettably, much of that material concerns the complex and troubled history of relationships within the Toppi family spanning over four decades.
Giovanna was the matriarch of a family of restaurateurs and at times supported each of her children in their various undertakings, mostly to her financial detriment. Over the years, family ties were clearly tested by, and inextricably linked to, several business endeavours which resulted in varying degrees of success and failure.
Perhaps unsurprisingly, very few matters are agreed upon as between Paola, Walter and Caterina, with conflicting versions or recollections of events being a common thread throughout their evidence.
The witnesses called in support of Paola’s claim were Paola, Neil and Rosa Lamdolina, all of whom were cross-examined. Additional affidavits were also provided by Phillip Beazley (in his capacity as solicitor for Paola) in relation to the costs incurred by Paola in these proceedings.
The witnesses called in support of Walter’s defence were Walter and Caterina, both of whom were cross-examined. Additional affidavits were also provided by Chrystalla Georgiou (in her capacity as solicitor for Walter) in relation to the costs incurred by Walter and aspects of the procedural history of these proceedings.
In every instance, I have endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.
This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the salient principles that guide this undertaking are the following:
In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].
A proper understanding of the chronology of events is critical and contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: (2021) 388 ALR 128; [2021] NSWCA 24, Bell P (with whom Bathurst CJ and Leeming JA agreed) at [25].
These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.
… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
This passage was quoted with apparent approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at [30].
… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
[27] Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):
the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. (emphasis added)
[28] Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.
[29] Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.
Where necessary, I have made specific comments about the credibility and reliability of the evidence of particular witnesses in my findings about identified events below.
In terms of the credibility of Paola, Neil, Rosa, Walter and Caterina as witnesses generally, bearing in mind the foregoing principles, I make the following remarks about each of them.
The credibility and reliability of Paola’s evidence varied.
Paola’s evidence was implausible at times, especially when she was unwilling to accept obvious propositions or she was asked questions about Walter when her evidence was admittedly coloured by her dislike for him, as illustrated by the following exchange in cross-examination (T27):
Q. … You don’t like your brother very much at all, do you?
A. No, not at all.
Q. That’s coloured the way that you have prepared your evidence in this case, isn’t it?
A. That’s correct.
The infiltration of this colouring to her evidence can be seen by her refusal to accept that Walter’s medical needs made his employability a bit difficult (T41) and her exaggerated comments that “[Walter] never worked as far as I’m concerned” and that “[Walter’s] never wanted to work” (T41), when it is clear that Walter had worked for years in the restaurant industry before his mental and physical health prevented him from doing so. Paola’s coloured approach to giving evidence is demonstrated by her admission that she did not include in her affidavits any statements made by Giovanna that she wanted Walter to be looked after, saying it was “not my position to… explain Walter’s position” (T32).
Despite this approach, to her credit Paola accepted in cross-examination that Walter ought to receive “a significant amount” from, and “at least half of”, Giovanna’s estate in conformity with Paola’s understanding of Giovanna’s testamentary intentions and concerns for Walter (T30–31).
I also accepted Paola’s evidence on topics where it could be substantiated by reference to other objective evidence, such as the extent to which Giovanna was paid amounts on a weekly basis from the businesses in which Paola and Giovanna had an interest.
Paola’s evidence about her financial circumstances was confusing, particularly where she did not have a grasp of the difference between the assets and liabilities of herself and those of the companies in which she was involved. She appeared to have devolved to her accountant any understanding of the company in which a director’s loan account was being used to fund her “living expenses” which, as considered later in this judgment, included funds used to gamble by both Paola and her son, David (T75–77). Ironically, it became unnecessary for me to make any determination to resolve that confusion when I permitted Paola to reopen her case to show that her principal asset (which she held indirectly), the business known as “Toppi Bar & Restaurant”, had ceased trading.
There were many instances where the evidence provided by Paola was challenged by either or both of Walter and Caterina. In many instances it was not necessary for me to resolve the conflict in their respective positions because it was not relevant to the central determination I have to make.
Not only was Neil partisan in the interests of Paola, but he also adopted a particularly combative, evasive and sarcastic approach to being cross-examined. When he was asked questions in cross-examination about matters in his own affidavit, relating to his own bank account or multiple bank transfers made to him, all of which I consider to be squarely within his own knowledge, he professed to have no information or recollection about them or answered in an unhelpfully pugnacious way. The examples in cross-examination in which he adopted this approach include his answers to questioning about:
the 2023 VW Golf car obtained by Neil using finance arranged by him and that he drives, about which Neil claimed not to know any detail (T91–95); and
multiple transfers made to Neil totalling several thousands of dollars within a matter of days in July and August 2024 from company accounts, about which Neil claimed not to know anything or recall what they were for, including whether they were wages or living expenses (T95–102).
In my assessment, Neil was using the resources of Toppi Martin Place to pay for his living expenses despite his evidence to the contrary.
As a result, I have treated Neil’s evidence with considerable caution.
Rosa’s evidence was confined to specific topics.
In her affidavit, Rosa confirmed the extent of Giovanna’s serious gambling habit, having witnessed Giovanna being “well known” at the Star City Casino, and attesting to loaning Giovanna significant amounts of money to pay debts and gamble. I accept this evidence.
I do not rely on the evidence of Rosa concerning the nature and extent of Walter’s care for Giovanna and Giovanna’s alleged complaints about it. This is partly due to the fact that Rosa admitted in cross-examination that she ceased to see or have any contact with Giovanna when Giovanna started using a wheelchair about three years prior to her death in November 2021 (T62–63).
Rosa gave particular affidavit evidence about seeing bruises on Giovanna’s arms, which she claims Giovanna attributed to Walter and his girlfriend getting “angry at her”. Given that Rosa admitted in cross-examination that if she had any concerns about the treatment of Giovanna, she would have raised them with Caterina but did not (T65), I am not prepared to use Rosa’s evidence to find that Walter mistreated Giovanna in his care of her.
In my assessment, although Walter presented as an argumentative and combative witness, his attitude was born of someone who has been locked in these highly contested proceedings with his sister Paola for over three years, stricken with grief at the loss of his mother for whom he cared deeply, angry at Paola for her treatment of Giovanna in her final years and suffering from complex psychological conditions for which he requires medical treatment that he cannot afford from his own resources.
To Walter’s considerable credit, when challenged in the very first question of his cross-examination to the effect that he did not have a very good relationship with Paola, he answered (T117):
Well, I, I love my sister. How she wants to believe the relationship is not, it’s not from me. I always thought I had a decent relationship with my sister.
The extent of Walter’s grief at the loss of his mother came out during the cross-examination, particularly when he described the considerable care he provided to Giovanna towards the end of her life, to which he added “[a]nd I enjoyed every moment of it” (T119).
Walter’s devotion to Giovanna was clearly considerable. During his cross-examination he sought to vindicate matters he had no doubt heard from his mother about which he had no direct knowledge. He championed Giovanna’s cause in overly emotional and expletive terms on occasion, particularly in a text message in about December 2019 that Walter sent in response to an email from Marco, which is repulsively expressed and which I will not repeat save for the line that demonstrates how firmly he sided with Giovanna:
…say what you want about me but I got my mothers back…
Q. Let me show you page 508 again. Did you send that?
A. I can’t, I told you - where’s the rest of the email?
Q. No, did you send that?
A. I don’t know. Where’s the rest of the email?
Q. That’s the whole email.
A. I can’t see the beginning, I can’t see the ends. I can’t see who it was sent by or where it’s gone to. This is, this just could be a photocopy. I don’t know.
Q. Is that your honest answer?
A. That’s the honest answer. Where’s the rest of the email? I just see Paola Toppi here to Philip Beazley.
Q. Yes, that’s --
A. I don’t see--
Q. That’s a text message.
A. Where’s the rest of the email, Mr Beazley? I don’t see my email address. I don’t recall.
Q. It’s not an email. It’s a text message.
A. Well, text message. I don’t see my number. I don’t see this is from me. This could have been changed. It could have been amended. It could have been anything. I don’t see this as mine, what I sent, no. To be honest with you. All I see is a photocopied document from Paola Toppi to Mr Beazley here.
Q. Yes.
A. Yes.
Q. I’m asking you to read--
A. No, I’m not reading it, because I already read it before. This is the second time you’ve asked me.
HIS HONOUR
Q. Mr Toppi?
A. Yes. He just gave me the same document five minutes ago.
Q. Yes, do the words that appear in the black box--
A. They do, but they’re--
Q. Just please wait until I’ve asked you a question.
A. Sorry.
Q. Do the words that appear in the black box on page 508, are they words that you drafted?
A. It appears so. Sorry.
Q. You don’t paint your sister in a very good light, do you?
A. Unfortunately, the way she behaved towards my mother’s most vulnerable and the years that you would expect somebody to, she done the complete opposite, and was a big let down to myself and, unfortunately, she broke my mother’s heart, yeah.
Walter openly admitted to having a flawed memory, saying that he struggled to recall things from a couple of years back (T118), which I think is likely to be a product of the medical conditions with which he has been diagnosed but remain untreated.
Walter also admitted that his reading ability was restricted by the fact that he left school before he was 15 years old (T124), although in my assessment he was able to read to a sufficient level of understanding when given time to do so.
I accept Walter’s denial of the proposition that Caterina is holding money for him until after the proceedings are over (T156). I also accept Walter’s understanding that Caterina has maintained a ledger for every amount she has lent him and his assertion that he repaid her with interest on that amount (T156). That ledger (with supporting bank documents) went into evidence and shows that Caterina has lent $214,792 to Walter. I accept Walter’s evidence that he believes that by paying $250,000 to Caterina (via his solicitors) he has repaid the loan from her plus interest (T155–156).
In cross-examination, Walter was also argumentative and prone to giving intemperate speeches, particularly with respect to Giovanna’s knowledge of a loan made to her and Paola for a business known as “Bar Machiavelli” (later, “Bar M”) (T132–137), which is dealt with in more detail below.
My overall assessment of Walter’s evidence is that he did his best to give his evidence honestly and fully within the limitations caused by his medical conditions. I have, however, recognised that his evidence is not completely reliable in all respects because of the flaws in his memory and his unstintingly emotional desire to side with Giovanna’s version of events. There is also one matter in particular about which I consider Walter was not forthcoming. That is addressed later in this judgment. For these reasons, I have been cautious in considering numerous aspects of Walter’s evidence.
Caterina is in the invidious position of finding herself in the middle of heated and hard-fought litigation over her mother’s estate between her only siblings. Caterina provided her evidence directly and without prevarication. She admitted that her relationship with Paola is not very good, and that they have been estranged for about 25 years, but accepted that it may be less and they must have been on good terms when they were going to operate a sushi train business together (T168 and T176).
Caterina also accepted that her relationship with Walter is good (T165). Caterina readily agreed that she is financially supporting Walter with a loan until the outcome of this litigation (T165), and that she would continue to support him if he needs money (T173–174).
On the whole, the cross-examination did not test the credibility or reliability of any of Caterina’s evidence. I am satisfied that I can rely on the evidence given by Caterina in most respects, unless I have given a reason for not doing so.
In the years prior to her death, Giovanna made a number of wills, including those dated:
10 October 2013 (2013 Will);
8 December 2017 (2017 Will);
26 October 2018 (2018 Will);
30 January 2019 (January 2019 Will);
16 August 2019 with the Codicil dated 28 August 2019 (August 2019 Will); and
2 September 2020 (2020 Will).
These wills provide invaluable insight into the shifting dynamics within the Toppi family from time to time, as well as the pivotal fluctuating relationship between Giovanna and Paola. Paola features as a substantial beneficiary of Giovanna’s estate in some wills but not in others.
This instability in the expression of Giovanna’s testamentary intentions with regard to Paola is demonstrative of the nature of their relationship, which could fairly be described as turbulent. The fluctuations in their mutual affection appear to have been closely tied to the success or otherwise of their various business endeavours over the years. This correlation is most notable in respect of the spectacular rise and fall of Bar Machiavelli, which is addressed later in this judgment, as reflected in the January 2019 Will, the August 2019 Will and the 2020 Will.
The 2013 Will:
left the property at 95 Macleay Street, Potts Point (Macleay Street property) owned by Giovanna to Walter and Paola as tenants-in-common in equal shares;
directed Caterina to repay a loan in the amount of $1.3 million that she took out in Giovanna’s name and secured against the Macleay Street property;
gave Giovanna’s interest in Machiavelli and the premises from which that business operated to Caterina, subject to Caterina repaying the loan made to her; and
left the residue of the estate on trust for Walter, Paola and Caterina.
The 2017 Will:
appointed Walter as sole executor and trustee of Giovanna’s estate;
left her shares in three companies (G & P Toppi Pty Ltd**, Sciue Sciue Pty Ltd** and Tridevco Pty Ltd) to Paola;
gave the Macleay Street property to Walter; and
gave the residue of Giovanna’s estate to Walter.
The 2017 Will was accompanied by a statement made by Giovanna detailing the reasons for the provisions that she made in the 2017 Will (2017 Statement).
By way of summary, in the 2017 Statement, Giovanna gave the following explanations:
In respect of Paola: Giovanna made provision to Paola of shares in restaurant businesses in which Paola already held an interest so that Paola could take over and operate those businesses to earn substantial income. Giovanna and Paola had disagreements that caused distress to Giovanna. Paola was in a strong financial position but had lost a lot of her assets and funds. Paola is financially savvy and intelligent and, by inheriting the businesses, Giovanna considered that she would be in a position to establish a strong financial future. Giovanna did not wish for Paola to inherit any other part of her estate because of her then “recent relationship” with Paola and “Paola’s character”.
In respect of Caterina: By this time, Caterina and Giovanna had been estranged for years. Giovanna had substantial problems with Caterina in relation to her “takeover” of Machiavelli, in circumstances which left Giovanna responsible for a multi-million dollar mortgage. Giovanna felt betrayed and cheated by Caterina. Giovanna considered that her relationship with Caterina irretrievably broke down as a result. Giovanna considered that Caterina’s financial circumstances to be much stronger than those of Paola and Walter, that Caterina and her husband were in a very strong financial situation and did not have any need for provision from Giovanna out of her estate. The assets that Caterina and her husband had been able to accumulate were largely from the takeover of Machiavelli and the subsequent income they derived would enable them to meet their future needs.
In respect of Walter: Giovanna considered that Walter was in the most need. Walter left school at the age of 14 after his father died and had significant issues resulting from his father’s death. Walter previously managed a restaurant but was severely bashed during a break-in following which Walter was unable to work or derive any income. Walter lived with Giovanna. Giovanna paid all the outgoings, costs and expenses. Giovanna looked after Walter and he did not receive a pension. Walter also looked after Giovanna by driving her wherever she asked, including to medical appointments. Walter was genuinely concerned about Giovanna’s interests and they had a close and loving relationship. Giovanna considered she had a strong moral obligation to provide for Walter in a way that would enable him to live comfortably into the future. It was Giovanna’s intention that by leaving Walter the Macleay Street property, he would be able to reside in one of the units and collect rent from the commercial premises throughout the rest of the building to maintain his standard of living. Walter was also left the residue of Giovanna’s estate, again owing to that same sense of a strong moral obligation.
The 2018 Will:
appointed Rosa and Mr Beazley (the solicitor acting for Paola in these proceedings) as executors of Giovanna’s estate;
directed the executors to sell the Macleay Street property by way of auction;
required the executors to hold the net sale proceeds of the Macleay Street property on trust as to one half for Walter by giving a life interest in the use of that capital to provide him with accommodation and an income and as to the other half for Paola; and
left the residue of Giovanna’s estate on trust on exactly the same basis as the Macleay Street property, for the benefit of each of Walter and Paola.
The January 2019 Will:
appointed Marco as sole executor and trustee of Giovanna’s estate;
left the shares in three companies (G & P Toppi, Sciue Sciue Pty Ltd and Tridevco) to Paola; and
divided the rest and residue of Giovanna’s estate by giving 50% absolutely and beneficially to Paola, and 50% to Paola to hold on trust for Walter.
Nothing turns on it, but I note that on 23 January 2019 (about one week prior to the execution of the January 2019 Will), G & P Toppi had changed its name to Cara Nonna Pty Ltd.
The August 2019 Will:
appointed Walter as sole executor and trustee of Giovanna’s estate;
left her shares in the same three companies (G & P Toppi, Sciue Sciue Pty Ltd and Tridevco) to Paola;
provided that, whether the Macleay Street property was sold or retained after Giovanna’s death, no action was to be taken by Giovanna’s estate against Paola and/or her associated entities to recover any amount paid to discharge a mortgage entered into for the benefit of both Paola and Giovanna and secured against the Macleay Street property;
provided that any obligation of Paola or her associated entities to repay any sum in relation to that mortgage would be discharged upon the death of Giovanna;
Giovanna considered that if the Macleay Street property was sold before she died, she had made sufficient provision for Paola by discharging the mortgage and paying the debt which that mortgage secured from the proceeds of sale of the Macleay Street property; and
gave the rest and residue of Giovanna’s estate to Walter, or should Walter predecease or otherwise fail to survive Giovanna, to Walter’s children, or should Walter have no children, to Paola’s children in equal shares.
Under cl 5 of the 2020 Will, Walter was appointed as the sole executor and trustee of Giovanna’s estate.
The relevant parts of the testamentary dispositions in the 2020 Will in cl 8 are as follows (emphasis in original):
- I DIRECT that my Executor:
a. Firstly, PAY all estate liabilities.
b. Secondly, GIVE my company shares as follows:
i. As at the date of this Will, I am a shareholder as to 1 class B share in CARA NONNA PTY LTD ACN 610 562 368. If, at the date of my death, I own this share, or any shares, in the said Company, then I GIVE them to my daughter, PAOLA CUNNINGHAM (“Paola”) … PROVIDED ALWAYS that, should Paola not survive to take this gift, leaving a child or children, then such child or children, shall take by substitution and, if more than one, as tenants in common in equal shares, the gift by this clause which Paola would otherwise have taken;
ii. As at the date of this will, I am a shareholder as to 2 ordinary shares in HOSPITALITY PLACEMENTS PTY LIMITED ACN 074 269 944. If, at the date of my death, I own these shares, or any shares, in the said Company, then I GIVE them to Paola, PROVIDED ALWAYS that, should Paola not survive to take this gift leaving a child or children, then such child or children shall take by substitution and, if more than one, as tenants in common in equal shares, the gift by this clause which Paola would otherwise have taken; and
c. Thirdly, GIVE my property located at 95 Macleay Street, Potts Point, in the State of New South Wales, 2011 (Folio 10/651851), subject to any encumbrances thereon, to Walter, PROVIDED ALWAYS that, should Walter not survive to take this gift …
d. Finally, GIVE the rest and residue of my estate, of whatsoever kind and nature, and wheresoever situate absolutely and beneficially to Walter PROVIDED ALWAYS that, should Walter not survive me to take this gift …
These proceedings did not originate as a claim for provision under s 59 of the Act.
On 15 November 2021, Paola lodged a notice of intention to apply for probate of the 2018 Will.
On 24 November 2021, Walter lodged a caveat such that no grant of probate or reseal be made in Giovanna’s estate without prior notice to him.
On 6 December 2021, Paola lodged a caveat of her own.
On 10 January 2022, Paola filed a summons seeking that letters of administration with the 2018 Will annexed be granted to Paola.
On 28 January 2022, Walter lodged a caveat that no grant of administration with the will annexed be made in Giovanna’s estate without prior notice to him.
On 4 May 2022, Walter filed a summons for probate of the 2020 Will.
On 11 July 2022, Hallen J ordered that the matter proceed by way of pleadings and provided a timetable for pleadings and evidence.
On 27 July 2022, Paola filed a statement of claim in which she sought that letters of administration with the 2018 Will annexed be granted to Paola.
On 17 August 2022, Walter filed his defence and statement of cross-claim. By Walter’s cross-claim, he sought the grant of probate in respect of the 2020 Will or, in the alternative, the August 2019 Will.
On 12 September 2022, Paola filed a defence to the statement of cross-claim and a reply seeking, in the alternative, a grant of probate in respect of the 2013 Will.
On 5 October 2022, Paola filed an amended statement of claim in which she sought letters of administration with the 2013 Will annexed be granted to Paola.
On 12 October 2022, Walter filed an amended statement of cross-claim, which included an application for provision pursuant to s 59 of the Act from Giovanna’s estate in favour of Walter. This was the first time an application for provision was made in the proceedings.
So, by that stage, the respective positions of Paola and Walter were as follows:
Initially, Paola sought administration of the 2018 Will or a grant of probate in respect of the 2013 Will. As outlined above, both the 2018 Will and the 2013 Will made substantial provision for her. Challenge to the January 2019 Will, the August 2019 Will and the 2020 Will appears to have been pressed by Paola, at least initially, on the bases of a lack of testamentary capacity of Giovanna and/or undue influence by Walter.
Walter sought a grant of probate in respect of the 2020 Will, which effectively made no provision for Paola other than shareholdings in private entities that were agreed by both parties to be of no value. Alternatively, Walter sought a grant of probate in respect of the August 2019 Will which, save for a statement of testamentary intention not to recover any debts owing to Giovanna’s estate by Paola or her associated entities in relation to a mortgage registered against the Macleay Street property, left the entirety of Giovanna’s estate to Walter.
Further or in the alternative, an order making provision for the Plaintiff out of the estate of the Deceased pursuant to s 59 of the Succession Act 2006 (NSW).
This was the first time Paola advanced a claim for provision in the proceedings. By this time, the 12-month limitation period in s 58(2) of the Act had lapsed some 19 days earlier.
During 2023, various timetables for the service of evidence and other interlocutory steps were ordered.
On 17 November 2023, the proceedings were listed for a nine-day hearing to commence on 26 August 2024.
On or around 24 July 2024, Paola’s solicitor notified Walter’s solicitors that Paola was no longer propounding either the 2018 Will or the 2013 Will. Consequently, the scope of Paola’s claims had significantly reduced and encompassed only the out-of-time claim for provision.
By 14 August 2024, it became clear that Paola’s evidence in relation to her claim for provision was lacking, mostly due to the absence of information as to her financial position. The reason identified for the uncertainty in relation to her financial position at this time was the potential sale of Paola’s principal asset, the restaurant known as Toppi Bar & Restaurant in Martin Place, Sydney. Specifically, the proposed sale of Toppi Bar & Restaurant had stalled in or around July 2024, just prior to the hearing.
On 21 August 2024, Pike J made various orders including the dismissal of the balance of Paola’s claims – the exception being her claim for provision – as well as an order that probate in respect of the 2020 Will in solemn form be granted to Walter. As a result, the issue of provision from the 2020 Will is the focus of my determination in these proceedings.
On 29 August 2024, Pike J made further orders, including that Paola was granted leave to rely on further evidence, the matter was adjourned, the hearing dates that remained were vacated, and Paola was ordered to pay the costs thrown away by reason of the adjournment: The Estate of Giovanna Toppi [2024] NSWSC 1115. In addition, Pike J noted that Paola consented to the sum of $1 million being paid out to Walter in his capacity as executor of Giovanna’s estate, and that sum may be used (subject to Walter’s duties as executor) to pay his legal costs in these proceedings and in part satisfaction of his claim to the residue of the estate.
Again, one matter of particular significance in determining the grant of leave that necessitated the adjournment was the potential sale of Toppi Bar & Restaurant, then being a matter which had “only recently emerged and been clarified”: The Estate of Giovanna Toppi, Pike J at [47]. In this light, his Honour was particularly conscious of the need in provision claims such as this for the court to have up-to-date information as to the financial position of a claimant: The Estate of Giovanna Toppi, Pike J at [57], citing Rodny v Weisbord [2024] NSWCA 183, Ward P at [2], [3], and [5], Stern JA at [13], and Basten AJA at [57] and [67]–[68]; [2024] NSWSC 559, Hammerschlag CJ in Eq at [22].
When Giovanna arrived in Sydney she first worked at “Buona Sera”, a restaurant in Macleay Street, Potts Point.
In 1967, Giovanna opened her first restaurant called “O Sole Mio” on New South Head Road, Edgecliff.
In 1975 or 1976, Giovanna opened “Giovanna’s”, a restaurant at 75 Macleay Street, Potts Point.
In 1979, Giovanna purchased the Macleay Street property for $348,000 and there opened the very well-known restaurant “La Strada”. It was an intimate, silver service, 50-seat restaurant where politicians, business leaders and notable clientele came to dine.
In about 1980, when she was about 16 years old, Paola commenced her apprenticeship as a chef at La Strada and continued to work there intermittently until 1988.
In 1996, La Strada ceased trading to enable Giovanna to reduce her workload as, by this time, she had been serving lunch at Machiavelli and dinner at La Strada for the better part of a decade. Shortly after La Strada ceased trading, Giovanna leased out various parts of the Macleay Street property to generate income.
In her later years, the Macleay Street property served as both Giovanna’s principal asset and primary source of income. It consisted of three commercial tenancies on the ground floor, with residential accommodation on the first floor and attic.
The Macleay Street property also served to benefit Giovanna’s children at different times and in various ways, including as security for loans and/or guarantees benefiting both Caterina and Paola, as well as providing premises for businesses run by both Paola and Walter.
Between 1996 and 1998, Paola leased one of the ground floor commercial tenancies of the Macleay Street property, Shop One, from Giovanna to open a shop with Neil. Paola says that she paid rent to Giovanna of $3,000 per week and she agreed to this after Giovanna had not been able to find tenants for some 18 months. Walter recalls that the rent was $3,000 per month and the shop was vacant for 12 months during which Paola and Giovanna quarrelled over Giovanna’s initial refusal to lease it to Paola. It is not necessary for me to resolve this conflict in the evidence as it is clear Paola paid Giovanna a substantial amount in rent, whatever it was. That Giovanna and Paola may have had disagreements about the lease is in keeping with the nature of their relationship.
Between 2004 and 2012, Walter operated an Italian restaurant, “La Vecchia Cucina”, from Shop Two of the Macleay Street property, with the consent of Giovanna.
In April 2021, the Macleay Street property was sold for $8,500,000 and the sale settled in August 2021.
At the time it was sold, the Macleay Street property generated gross income of approximately $290,000 per year but this income was substantially disrupted in 2020 and 2021 for reasons related to the COVID-19 pandemic.
In 1988, together with a business partner, Gino Bigazzi, Giovanna purchased a restaurant business called “The Kingfish Seafood Café” operating at Lot 1, 123 Clarence Street, Sydney (Clarence Street p****remises) for $165,000.
The Clarence Street premises were the subject of a lease, and the strata title did not form part of the restaurant purchase.
Giovanna and Mr Bigazzi resolved to renovate the Clarence Street premises, which was done over six weeks from funds borrowed by Giovanna. Following this, the pair opened Machiavelli.
According to Paola, she was left to perform the renovation on her own. According to Walter, Caterina and he also helped with the renovations, which Paola denies. I consider it is likely that Paola, Caterina and Walter all helped in some way in preparing the Clarence Street premises for trade as Machiavelli, but is not necessary for me to resolve that conflict in the evidence as nothing particularly turns on it.
Machiavelli opened as a 200-seat restaurant with Giovanna working on the antipasto table, Paola working as head chef, and Caterina and Walter (aged only 15 years) working on the restaurant floor.
Shortly after Machiavelli opened, Paola created an original spaghetti dish that she called “Spaghetti Machiavelli” in honour of the restaurant, and which became the most popular dish at Machiavelli.
At some stage in 1989, the partnership between Giovanna and Mr Bigazzi for the operation of Machiavelli dissolved. Giovanna bought Mr Bigazzi out of the business for $160,000, the funds having been borrowed against the business and secured by Giovanna’s guarantee against the Macleay Street property.
In early 1989, Machiavelli Ristorante Pty Limited was incorporated for the purposes of owning and operating Machiavelli. At this time, Paola and Caterina were appointed as the initial directors of Machiavelli Ristorante.
Machiavelli achieved significant success as a lunch venue in central Sydney, often trading at capacity. The clientele of Machiavelli included politicians, business leaders, public officials and notable figures in the entertainment world. Giovanna developed the idea of having the life size photographs of the most prominent political and business figures of the times on the walls of Machiavelli, and it is said that those individuals would then invariably seek to dine beneath their own images.
On 31 December 1995, Giovanna became a director and the secretary of Machiavelli Ristorante upon the resignation of Paola. Paola says that at or around this time, she transferred her shareholdings in Machiavelli Ristorante to Caterina. Caterina does not deny this.
Good luck to you, and I don’t need your shitty restaurant.
Paola denies having said these words and says that she continued to work at Machiavelli from time to time, including during the Sydney Olympics in 2000, until the demands of her other business with Neil and parental responsibilities prevented her from doing so. Paola has provided tax invoices dated 20 April 2001 and 22 June 2001 issued by BaseCove Pty Ltd to Machiavelli for what she says were consultancy services provided by her at those times.
Caterina categorically denies that Paola returned to work at Machiavelli after 1995, as does Walter. Although it is not necessary for me to make precise findings about this matter, I do find that Paola left Machiavelli in 1995 amidst arguments with Giovanna, Caterina and Walter.
I also find that the circumstances in which Paola left Machiavelli in 1995, and perhaps the events which followed, caused a significant rift in Paola’s relationship with Caterina. Their relationship has never completely recovered even though Caterina later assisted Paola by providing a guarantee (outlined in more detail below) and at some point, they discussed establishing a sushi train business together.
The same cannot be said for the relationship between Paola and Giovanna, who appear to have been close for relatively lengthy periods, punctuated by significant but perhaps more fleeting periods of disagreement until their final parting.
Indeed, it was not unusual during the course of the relationship between Paola and Giovanna for there to be tumultuous fallings out followed by forms of reconciliation. That reconciliation frequently coincided with, or was quickly followed by, some form of new business endeavour involving the two of them.
When Paola left Machiavelli in 1995, she renovated “The Republic Bar” in O’Connell Street, Sydney. Food was also provided at the venue, although Paola says that it was not an Italian restaurant.
Caterina regarded this as the opening of a rival restaurant, causing a huge rift between Paola and the rest of the family. Paola denies that it caused any rift.
Although nothing particularly turns on it, given the circumstances in which Paola left Machiavelli, it is likely that Paola working in another hospitality business in the Sydney CBD only added to the tensions between Paola and the rest of the family.
On 22 November 1995, Machiavelli Holdings Pty Limited was incorporated, with Caterina and her then husband, Vittorio Tarchi, as directors and shareholders. Caterina held nine shares in Machiavelli Holdings, while Vittorio held one share. Subsequently, as detailed below, Caterina came to hold all ten shares in Machiavelli Holdings, becoming the sole shareholder and director.
Around this time, it appears that the ownership of Machiavelli was transferred from Machiavelli Ristorante to Machiavelli Holdings.
In December 1996, Caterina and Vittorio caused 2T Investments Pty Limited, another company of which they were the co-directors and shareholders, to purchase the Clarence Street premises for approximately $940,000. The loan to fund this purchase was guaranteed by Giovanna with the Macleay Street property provided as security.
Following this, either Machiavelli Ristorante or Machiavelli Holdings (probably the latter) paid rent to 2T Investments in respect of the Clarence Street premises from which Machiavelli operated and continues to operate today.
Caterina says that T2 Investments (not the owner or operator of Machiavelli, but the owner and lessor of the Clarence Street premises), would then pay Giovanna a substantial salary ranging from $3,000 to $7,000 per week. There is no other evidence of this before me and nothing turns on it.
In 2002, Vittorio resigned as a director of Machiavelli Holdings. Following this, Caterina was the sole director and shareholder of Machiavelli Holdings.
In 2005, Machiavelli Ristorante was deregistered.
Notably, in the 2013 Will, Giovanna made the following statement that evinces her understanding or belief that, as of 2013, she held some beneficial interest in both Machiavelli and the Clarence Street premises (emphasis in original):
- I give my interest in the restaurant (including the strata title) and the company trading as Machiavelli Restaurant to my daughter CATERINA TARCHI subject to her repaying the loan of $1.3 million referred to in paragraph 5 above. I note she holds half of the shares and half of the property in trust for me already.
Caterina says she does not recall entering any written or oral agreement to hold Paola’s shares in Machiavelli (the eight shares transferred from Paola to Caterina) on trust either for Paola or for “the Toppi family”.
Caterina also recalls several conversations between her and Giovanna prior to the purchase of the Clarence Street premises, in which Giovanna said words to the effect of:
you should purchase [the Clarence Street premises] on your own for your future.
This recollection is different from several unambiguous written statements from Giovanna herself within the 2013 Will, the 2017 Will, the 2018 Will, the August 2019 Will and the 2020 Will.
Walter’s written evidence does not help to elucidate this matter beyond the following:
… the arrangement concerning the Machiavelli Restaurant and the strata and company arrangements was a matter between my sister, Caterina, and my Mother.
As stated previously, Caterina is not a beneficiary of Giovanna’s estate and makes no claim for provision from it. Therefore, it is not necessary for me to resolve this issue.
It is also not necessary for me to recount the full history of loans advanced to Caterina and/or Machiavelli Holdings and secured against either the Macleay Street property, Giovanna’s former home in Bellevue Hill, or an apartment Giovanna once held in York Street, Sydney. For present purposes, it will suffice to note that there appears to have been a default in the repayment of one or more of those loans, which eventually necessitated the September 2012 sale of Giovanna’s former home in Bellevue Hill. Paola says that a settlement deed was subsequently entered into as between “the Toppi family” regarding the sale of Machiavelli and discharge of Giovanna’s guarantee of a loan to Machiavelli Holdings. There is simply not enough evidence before me to make findings about these matters and, as I have explained above, it is not necessary for me to do so.
In 2015, Caterina caused Machiavelli Holdings to sell Machiavelli to Bicher & Son Pty Ltd, a company in which Nicholae Bicher and Paul Pellarini were equal shareholders and Mr Bicher was the sole director.
There are conflicting accounts as to what were the proceeds of sale and how they were divided. Caterina says that upon the sale of Machiavelli, she received $450,000, plus an additional $400,000. Paola says Caterina received $550,000 on the contract plus an additional $450,000 in cash. The contract of sale is not in evidence and nothing turns on this.
From the sale proceeds, Caterina says she gave Giovanna $150,000 and paid $250,000 to Charlie Lo Sordo in part repayment of a $300,000 loan he had advanced to Giovanna in or around 2009, $150,000 of which Caterina understood was given or lent to Paola. There is no evidence before me concerning the loan from Mr Lo Sordo, its repayment, or any advance from Giovanna to Paola at or around this time.
Paola says that she received nothing from the sale of Machiavelli. Paola recalls Giovanna said that she received $70,000 or $75,000 from the proceeds of sale and that $210,000 was paid from the proceeds in reduction of a loan advanced by National Australia Bank (NAB) to Machiavelli Holdings, as secured against the Macleay Street property. Paola also says it was Caterina who owed $300,000 to Mr Lo Sordo, not Giovanna.
The most reliable evidence before me on this matter are written statements attributed to Giovanna during her lifetime. These include the 2017 Statement accompanying the 2017 Will, and statements within the 2018 Will, which certainly convey that Giovanna felt betrayed by the way in which Caterina had “taken over” Machiavelli and that Caterina and Giovanna were estranged for “years” at some stage prior to December 2017. Caterina says that she was not estranged from Giovanna but admits that Giovanna was upset that she sold Machiavelli. In light of Giovanna’s strong temperament, I am content to rely on Giovanna’s view of their relationship at that time.
- The reason I have removed Catarina Tarchi as a beneficiary from of my will is because she is a very rich woman and she has made herself rich through my hard work. In particular:
a. she kept my interest in the business known as Machiavelli Restaurant when she sold it;
b. I guaranteed loans for her and her husband, as a result of which I lost my home.
c. She did not pay me properly for the work I did at the restaurant either as an owner or as an employee. I was never paid superannuation nor long service leave.
d. She used the profits of the business to buy and pay off the loan on the strata freehold from which the business operated and still operates today.
e. As a result I consider she has been properly and adequately provided for during her lifetime.
Paola gives evidence that in 1992, at her request, Giovanna provided her with a bank guarantee of $250,000 for the development of 500 George Street, Sydney. Paola says that it was repaid within 6 weeks, and she paid $5,000 per week to Giovanna for the duration of the development over two years. There is no documentary evidence of these payments.
Walter says that he was aware of this bank guarantee and that Giovanna told him that in addition to it she provided “hundreds of thousands in cash” to Paola of which Paola only repaid half.
It is difficult to determine where the truth lies in relation to this event, but it does demonstrate Giovanna’s propensity to provide substantial sums of money to Paola to support her business ventures.
In June 1996, Hospitality Placements Pty Ltd was incorporated with Paola as its sole shareholder and director. The principal business of Hospitality Placements was the provision of employment services in the hospitality industry. As indicated below, Hospitality Placements was a source of sporadic payments made to Giovanna for a period of time in 2018–2019.
Hospitality Placements was operated by Paola until it went into administration on 19 February 2024 having generated trading losses in the previous years, which Paola attributed to the impact of the COVID-19 pandemic.
In about 2005 or 2006, Paola entered into business with an acquaintance, Delores Lavin. Each were directors of, and equal shareholders in, a company, Luxe Studios Pty Ltd, which purchased and renovated a property situated in Liverpool Street, Sydney (Liverpool Street p****roperty).
The result of this venture was that by October 2008, a debt owing to NAB in the amount of $7,768,000 was guaranteed joint and severally by various parties including Paola, Neil and Delores. Luxe Studios went into receivership in 2009, the Liverpool Street property was sold in 2010 and NAB sought to enforce the guarantees with respect to the shortfall.
The full history of the matter is well-summarised in the litigation which followed. It is not necessary for me to repeat it: Lavin v Toppi (2014) 87 NSWLR 159; [2014] NSWCA 160; Lavin v Toppi (2015) 254 CLR 459: [2015] HCA 4. It is, however, not lost on me that the subject matter of that litigation was one seeking contribution in equity as against a co-guarantor, the same form of obligation under which Paola is said to be liable to Giovanna’s estate and which Paola seeks to be forgiven as part of her claim for provision (T21 and T49).
For present purposes, it will suffice to say that the failure of Luxe Studios severely dented Paola and Neil’s finances (T40) and resulted in the 2011 sale of their home in Potts Point (Wylde Street property) to discharge their obligations as guarantors to NAB (T51). Paola and Neil have lived in rented accommodation ever since.
Caterina says that in 2009, she was present when Giovanna asked to borrow $300,000 from Mr Lo Sordo to help with Paola’s debts and that Giovanna later told her that she had lent $150,000 of that amount to Paola. Paola denies this ever occurred.
Neither Caterina nor Paola was challenged on their respective versions of this alleged event. It is unnecessary for me to make a finding in relation to it as there is ample other evidence of Giovanna providing financial support to Paola across many years.
After Luxe Studios closed in 2010, Paola had no income. She opened “Café 29” at Potts Point for a year’s trial to see if she could get a liquor licence but was unsuccessful. During 2011, Giovanna assisted Paola by paying her rent for four months. Paola asserts that she repaid her mother for this assistance.
Caterina says that the source of Giovanna’s assistance to Paola at this time were additional payments of $1,000 per week that Machiavelli made to Giovanna. Caterina says that she does not know if Paola repaid the money to Giovanna.
Paola’s business is in trouble. There are all these vendors that she has not paid, and the business is closing. Caterina and I have paid hundreds of thousands of dollars to help her.
Paola denies that either Giovanna or Caterina paid “hundreds of thousands of dollars” to help her at this time. She says Polleria was Walter’s idea and that, as she was not working at the time, she agreed to “front” the business. Paola says the business operated for eight months, did not pay rent to Giovanna during this time and did not return a profit. Paola says that Caterina paid $10,000, and recalls the largest creditor was in the order of $6,600.
Caterina does not give evidence about Polleria nor the payment of any vendors on Paola’s behalf. Caterina also gave evidence that she was experiencing financial difficulties from about September 2008, and these persisted such that she was unable to assist Giovanna financially prior to the 2012 sale of Giovanna’s former home in Bellevue Hill.
Neither Walter nor Paola embroider the failure of Polleria with any useful detail; only that it occurred sometime prior to the opening of Sciue Sciue. Their respective assertions about Polleria – including any assistance that may or may not have been provided to Paola by Giovanna at this time – are not supported by any other evidence.
The state of the evidence is such that I am unable to rely on it or make any findings concerning Polleria, including any support that may or may not have been given to Paola by Giovanna at this time.
In or around November 2013, with the encouragement of Giovanna, Paola decided to open a new restaurant in Double Bay by the name of Sciue Sciue. Giovanna was the one who located the Double Bay premises as the potential site for the restaurant.
Around this time, Sciue Sciue Pty Ltd, a company which is mentioned above and of which Paola and Giovanna were the directors and shareholders, was incorporated.
Giovanna assisted Paola in the negotiation of, and signed, the lease for the Double Bay premises from which Sciue Sciue operated.
Giovanna also borrowed $150,000 from Neolite Neon Pty Ltd, secured by way of mortgage over the Macleay Street property. These funds were used to renovate and fit out the Double Bay premises for Sciue Sciue. Notably, this loan was guaranteed by Machiavelli Holdings with the guarantee executed by Caterina in her capacity as director of that entity and secured by a charge over Machiavelli Holdings and its assets. How this form of security came about, given the strained and perhaps broken relationship between Paola and Caterina, is not clear on the evidence before me.
The evidence that is before me suggests that 2013 was a comparatively harmonious year for Paola and Giovanna and that they were, at this time, on good terms. So much is clear from the level of assistance provided by Giovanna to Paola in respect of Sciue Sciue, as well as Paola’s appointment, on 30 December 2013, as Giovanna’s enduring power of attorney and enduring guardian. That the pair were on concordant terms is also reflected in the 2013 Will.
Sciue Sciue commenced trading in early 2014. Its opening heralded the creation of Paola’s new signature dish, Tagliatelle Sciue Sciue, and the restaurant was seemingly an “immediate” success.
Paola gave evidence that she repaid the loan to Giovanna in respect of Sciue Sciue in 2017.
During cross-examination, Paola maintained the loan was repaid within “three years” (T51). Paola referred to Giovanna’s assistance in the nature only of a “guarantee” (T51–52). The loan agreement is, however, in evidence and it names Giovanna as the borrower of the funds.
Caterina says it is her understanding that Paola did not contribute to the repayment of the loan in respect of Sciue Sciue. Caterina gave evidence of a conversation she had with Giovanna during which the latter purportedly made complaints to this effect. That conversation is said to have occurred at or around the time Sciue Sciue opened. Evidence of a conversation which is said to have occurred in early 2014 has no bearing on Paola’s assertion that she repaid those funds in or around 2017.
In or around February 2018, Sciue Sciue ceased trading as Paola was devoting her time to her next venture (again, together with Giovanna) and, according to Paola, the clientele of Sciue Sciue followed her (or, most likely, both of them) there.
In 2015, Giovanna commenced haemodialysis treatment, which resulted in her experiencing reduced mobility.
In or around November 2015, on the back of the success of Sciue Sciue at that time, Giovanna and Paola discussed opening another restaurant at 10 Neild Avenue, Rushcutters Bay (Neild Avenue p****remises) and made enquiries in pursuit of that endeavour. The lessor of the Neild Avenue premises was WFM Motors Pty Ltd.
The Neild Avenue premises had been vacant for some time, previously having seen at least two high-profile restaurants fail to prosper. Consequently, during a meeting attended by both Giovanna and Paola with the leasing agent of the Neild Avenue premises, that agent expressed some reluctance on behalf of the lessor (or, more accurately, Nicholas Politis in his capacity as a director and shareholder of the lessor) to enter another lease with a restaurant business.
Despite this, Giovanna and Paola persisted and submitted an offer to lease the Neild Avenue premises. As it happened, Mr Politis was a customer of Sciue Sciue and, according to Paola, accepted the offer only because it was Paola and Giovanna who had made it.
Eventually, Mr Bicher and Mr Pellarini, the new proprietors of Machiavelli, also became involved in the plan to open this restaurant together with Giovanna and Paola. This restaurant was to be a “sister” restaurant of Machiavelli to operate under the name of “Bar Machiavelli”.
As mentioned above, and discussed in more detail below, the establishment of Bar Machiavelli proved to be a significant catalyst in the final breakdown of the relationship between Paola and Giovanna.
In a relationship I have found to be characterised by tumultuous fallings out followed by periods of reconciliation, the establishment and eventual failure of Bar Machiavelli proved to be totally ruinous of the bond between mother and daughter or, at least, any outward expression of the love and affection which ordinarily attends that relationship. In the events that followed, communication between the pair largely ceased and the proverbial “battle lines” were drawn. Sadly, the resulting rift proved permanent, punctuated only by the death of Giovanna.
On 12 November 2015, Bar Machiavelli Pty Ltd was incorporated with Paola as its sole director and its shareholdings split equally between Paola and Mr Bicher.
On 15 November 2015, the Bar Machiavelli Unit Trust was established.
The Bar Machiavelli Unit Trust, in conjunction with a Unit Holder’s Agreement executed on or about 16 February 2016, provided that the business of Bar Machiavelli would be owned and operated by Bar Machiavelli Pty Ltd in its capacity as trustee of the Bar Machiavelli Unit Trust.
I am not speaking with Paola because she stopped paying me any money from the restaurant. After everything I did to help her with all her businesses, and she continues to disrespect and mistreat me.
Paola says it was the Bicher parties who pressured her to stop paying Giovanna after Giovanna had ceased working at Bar Machiavelli.
On 8 December 2017, Giovanna revoked the appointments of Paola as her enduring power of attorney and enduring guardian. On the same day, Giovanna executed the 2017 Will, which made no provision for Paola other than the shares held by Giovanna in G & P Toppi, Sciue Sciue Pty Ltd and Tridevco.
On 22 December 2017, the Bicher parties demanded repayment by 31 March 2018 of the loans advanced to Bar Machiavelli Pty Ltd, which then amounted to some $837,726.
It appears that Giovanna and Paola reconciled – or were at least on speaking terms – in early 2018 and remained so for the duration of that year. This is consistent with Paola’s evidence that the pair did not speak to each other for “a couple of months” during 2017 (T53).
On 21 March 2018, the Bicher parties commenced proceedings against Bar Machiavelli Pty Ltd, G & P Toppi and Paola in this court alleging breach of trust, seeking removal of the trustee, an account and, later, repayment of the loans advanced to Bar Machiavelli Pty Ltd plus interest.
On 12 June 2018, Paola, as sole director of Bar Machiavelli Pty Ltd, appointed a voluntary administrator to the company. That administrator suspended the operations of Bar Machiavelli Pty Ltd but entered into a licence agreement with Sciue Sciue Pty Ltd to operate the restaurant. Two competing deeds of company arrangement were proposed, one by the Bicher parties and the other by Paola and Giovanna, where the respective proponents would take an assignment of the lease of the Neild Avenue premises. WFM refused to consent to an assignment to the Bicher parties giving rise a further but distinct dispute which the Bicher parties successfully litigated against WFM in September 2018: Re Bar Machiavelli Pty Ltd [2018] NSWSC 1395 (Brereton JA).
In September 2018, the Bicher parties reached a settlement with Bar Machiavelli Pty Ltd, G & P Toppi, Paola and Giovanna, and entered into a Settlement Deed to the following effect:
The Bicher parties were to receive a settlement of $1,000,000 consisting of approximately $835,000 in repayment of the loans advanced by the Bicher parties to Bar Machiavelli Pty Ltd and $165,000 toward legal costs incurred by the Bicher parties. Additionally, Bicher & Son was to receive $100,000 in repayment of a separate loan advanced sometime earlier to Giovanna personally (Settlement Sum).
In exchange for the Settlement Sum, the Bicher parties were effectively “bought out” of Bar Machiavelli, the administration of Bar Machiavelli Pty Ltd was brought to an end, the Bicher parties agreed not to enforce the judgment obtained against WFM, and the proceedings brought against Bar Machiavelli Pty Ltd, G & P Toppi and Paola were discontinued by consent.
On 27 September 2018, Bar M Pty Ltd was incorporated with Paola as sole director and shareholder.
In October 2018:
Bar M Pty Ltd borrowed $1,100,000 from WFM and both Paola and Giovanna executed guarantees in favour of WFM, with Giovanna’s guarantee secured by way of mortgage over the Macleay Street property (WFM Loan).
Bar M Pty Ltd purchased Bar Machiavelli from Bar Machiavelli Pty Ltd for approximately $1,000,000 using funds advanced under the WFM Loan.
The Settlement Sum was paid to the Bicher parties.
The lease of the Neild Avenue premises as between WFM and Bar Machiavelli Pty Ltd was terminated, and a new lease was entered into as between WFM and Bar M Pty Ltd, which then owned and operated Bar Machiavelli under the new name “Bar M”. The new lease was at a higher rate of rent, which was apparently intended to compensate WFM for the costs it incurred in the proceedings brought against it by the Bicher parties. The guarantees and mortgage provided to secure the WFM Loan extended to secure the obligations of Bar M Pty Ltd under the lease.
On or around 26 October 2018, around the same time that Giovanna executed the guarantee and mortgage in favour of WFM, Giovanna executed the 2018 Will in which Paola was again favoured with substantial provision, as detailed above.
The WFM Loan was provided on terms including interest at 4.5% per annum and was repayable within 12 months of the drawdown date of 28 October 2018.
WFM and Bar M Pty Ltd later agreed to extend the repayment date to 24 January 2020 and then 24 February 2020.
Paola says she never wanted the WFM Loan, but that Giovanna insisted. Paola says one of the reasons she did not want the WFM Loan was because it was limited to a term of 12 months, a fact which Giovanna knew, and that they would have to repay the full amount plus interest within that time. Paola agreed that she accepted the WFM Loan and Giovanna’s guarantee of it because she knew it might assist her continue the Bar M business. Paola also agreed she did not pay any sum by way of principal in repayment of the WFM Loan, but it is suggested that Paola paid the interest (T44-45).
On 30 January 2019, Giovanna executed the January 2019 Will which left the same shareholdings as in previous wills to Paola and gave the rest and residue of the estate 50% absolutely and beneficially to Paola and 50% to Paola to hold on trust for Walter.
What would be the final rift between Paola and Giovanna began to unfold in or around August 2019.
On 3 August 2019, Paola sent an email to Vivian Evans raising concerns as to Giovanna’s ability to pay her bills, her gambling and her mental capacity or memory. In that email, Paola said that Giovanna “has turned against me yet again”. Paola also said that Giovanna “should undergo another cognitive test next year” and attached a photo of Giovanna asserted to be “when she was mistreated by Natalie”.
Dear Vivian,
I have instructed Philip to give you everything you want. There are no recent wills that I am aware of. The last will was back in 2013-2014 which is superseded all [sic] the wills done by your firm in recent years.
You are aware of the loan to WFM for $1.1m for which I am paying the interest and paying mum each week currently $2000.00. The 1m was for the purchase of the business and the $100,000 to repay Pellarini for the money loaned to mum.
I did not want this loan, I was not prepared to pay the other party that much money. Mum approached Frank Colacicco a friend of WFM motor’s director Nick Politis to secure the loan. She did so because at the time she was wanting to help me, as she told you numerous times. She has now again been turned against me by my brother as I refused to give them money to gamble at the Easts Leagues club one night. They were in the habit of calling me at midnight or later to ask for money as they had lost everything. I was stupid enough to do it a couple of times but I work too hard to be giving away all my money.
Since May 2016, I have given mum $644,000.00. It is all documented. I am not seeking it back I am just making my position clear that the only person in this family that has ever given anything to mum is me. On the other hand Walter has taken in money, free rent, stolen property, pawned property over 2m dollars in the past 20 years.
Mum still pays for Walter’s phone, health insurance, rent, food, anything he needs money for as he does not work. He has not put a tax return in in the past decade or 2. She now has the added bonus of paying for Natalie, who gets a carer’s allowance to look after mum.
This whole thing has become a farce. I want nothing to do with any of it.
Should you need anything just contact Philip.
Thanks
Paola
Paola gave evidence that she generally paid Giovanna her wages in respect of Bar Machiavelli (later, Bar M) every Friday in the amount of $2,000 per week. The amounts would vary depending on whether Paola had transferred Giovanna money during the relevant week.
In her evidence in chief, Paola says that she stopped paying Giovanna wages on 23 September 2019. Under cross-examination, Paola said she thinks she continued to pay wages to Giovanna until August 2019 (T55).
One ledger of payments on which Paola relies – being one produced in respect of Bar M – suggests the last payment to Giovanna in respect of Bar M was made on 22 August 2019.
A second ledger records 53 sporadic payments from Hospitality Placements, with each payment bearing the description “Giovanna”. Those payments appear to have been made from 10 July 2018 to 4 July 2019 and range from $300 to $2,000.
Consistent with her evidence in the proceedings, it is apparent that Paola regards and refers to the various entities under her control as extensions of herself and I have understood her reliance on the ledgers of Bar M and Hospitality Placements in this way. Together, they evidence regular and substantial payments to Giovanna during the time Bar Machiavelli, and later Bar M, operated.
Paola also says she was paying Giovanna’s personal expenses such as her telephone, cleaner, land tax, legal fees, and accountant fees. I accept that she did so.
I do not accept Caterina’s evidence that Paola stopped paying Giovanna wages in around November 2017. I consider that the documentary evidence proves otherwise.
There are text messages in evidence which appear to have been sent on or around 23 August 2019 from Paola to Walter. There is no love lost in these messages. In essence, Paola complains of the many tens of thousands of dollars she had given to both Giovanna and Walter, including payments towards Giovanna’s accountancy fees, phone bill, cleaners and a land tax instalment, and compares it to Walter having given Giovanna nothing for the whole of his life. Paola also said in the messages that she is “glad that Caterina is back in the fold. You all deserve each other”.
On 25 September 2019, an email exchange took place between Paola and Walter. In summary, Paola told Walter to make enquiries about the circumstances of the WFM Loan for himself, including the following:
Walter
Speak with Frank Colaccio [sic] or Mia Fredricks and ask them who wanted to borrow the money. Ask Politis how mum went up to him to thank him. I never wanted to pay that much we only owed them $850,000 but mum insisted.
Don’t take my word for it ask the people that were involved.
Either you are lying or Mum really has lost it. She even told Vivian in front of me how she wanted to borrow the money. I was advised by Vivian that the $2000 I was giving mum should come off the loan which is what used to happen when I was paying her.
…
Walter’s response to this email was incredibly vulgar and is irrelevant. It also brings him absolutely no credit. I will not repeat it. However, I will note that Mr Colacicco’s evidence about the WFM Loan would later prove pivotal in the proceedings brought by WFM against both Giovanna and Paola.
On 20 December 2019, Paola’s son Marco sent an email to both Walter and Ms Evans providing them with three options he had sourced to refinance the WFM Loan before the end of January 2020. Marco offered to guarantee the refinanced facility on the condition that a professional property manager be put in place to collect the rent from the Macleay Street property. It was suggested in the cross-examination of Walter that the reason for this was that the rents from the Macleay Street property were not being paid in discharge of mortgage liabilities owing on that property. Instead, the rent was being used by Giovanna to gamble, but no useful answer from Walter was obtained from this line of questioning (T135–139).
Sometime thereafter, in about December 2019, Walter responded to Marco via a text in emotional and expletive laden terms attacking Marco’s character and dismissing his proposed options to refinance the WFM Loan. In so doing, Walter foreshadowed claims about Giovanna’s age, ill-health and vulnerability that would later be made in respect of both the WFM Loan as well as the third-party guarantee and mortgage provided by Giovanna securing it.
I will not repeat the terms of this email. They again bring Walter no credit. As I have mentioned above, this repulsively expressed text revealed the manner in which Walter emotionally championed his mother’s cause by declaring that he had “my mothers back”. I do not accept Walter’s attempt during cross-examination to distance himself from this text. I have no doubt that he sent it, as he finally admitted (T139–140).
On 24 February 2020, Bar M Pty Ltd failed to repay the amount due to WFM in respect of the WFM Loan by the further extended repayment date.
In March 2020, demands for repayment of the WFM Loan were issued to both Bar M Pty Ltd and Giovanna, with which neither complied.
Around this time, as a result of the COVID-19 pandemic, Bar M was converted from a restaurant to a food store selling pre-made Italian meals and groceries in an effort to maintain the business.
On 2 September 2020, Giovanna executed the 2020 Will in which, save for the usual shareholdings left to Paola, she gave the rest and residue of her estate absolutely to Walter.
The 2020 Will demonstrated a significant change in position and sentiment regarding Giovanna’s liability to WFM in respect of the WFM Loan, and provided, at cl 11 (emphasis in original):
I have deliberately excluded my daughter, CATARINA TARCHI, of Units 3 and 4, The Bondi Apartments, 152 Campbell Parade, Bondi Beach, in the State of NSW, 2026 (“Catarina”) and Paola from receiving any legacy beyond that for which I have specifically provided and deliberately chosen not to provide further for them in this my Will, because in the case of Catarina, she has already received substantial gifts and benefits from me during my lifetime and has received substantial financial benefits at my expense, and in respect of Paola, she too has received substantial gifts and financial benefits from me during my lifetime, and also caused me to provide without, my informed consent, a third party guarantee mortgage against the security of my property at 95 Macleay Street, Potts Point in the said State, 2011 (Folio 10/651851) in favour of WFM Motors Pty Limited ACN 001 632 837 and has wrongfully exposed me to the threat of substantial financial loss and damage and caused me, as a consequence, to suffer anxiety and insecurity.
It is very difficult to reconcile Giovanna’s professed knowledge of, and position with respect to, the WFM Loan as outlined in the August 2019 Will with the contents of cl 11 of the 2020 Will.
The 2020 Will, at cl 13, also included a provision to the effect that Giovanna had an “imperfect knowledge” of the English language but had received a contemporaneous Italian translation of its contents. Such a clause did not appear in the 2013 Will, the 2017 Will, the 2018 Will, the January 2019 Will or the August 2019 Will.
On 15 September 2020, WFM commenced proceedings against Bar M Pty Ltd, Giovanna and Paola in this court (WFM proceedings).
In the WFM proceedings, Bar M Pty Ltd and Paola admitted liability under the WFM Loan and WFM sought to enforce the third-party guarantee and mortgage provided by Giovanna. By way of cross-claim, Giovanna sought relief from her liability under the Contracts Review Act 1980 (NSW), the Australian Securities and Investment Commission Act 2001 (Cth) or, in the alternative, under the doctrine of unconscionability at general law. In summary, Giovanna claimed she was elderly, vulnerable, poorly educated with limited English, and that she had been taken advantage of by the unconscientious conduct of both Paola and WFM. Essentially, Giovanna denied knowledge of the terms of the WFM Loan and insisted that she trusted Paola and so signed whatever Paola put in front of her. In the proceedings before me, Walter gave similar evidence as to his mother’s lack of understanding of the WFM Loan (T132–133).
In defence of that cross-claim, WFM contended that whatever Giovanna may have lacked by way of formal education, this was more than made up for by her demonstrable business acumen developed over a long and successful career. Further, WFM submitted that Giovanna had volunteered to assist Paola in her business and understood the nature of the obligations she assumed under the third-party guarantee and mortgage.
On 3 August 2021, Darke J ordered Giovanna to pay into court $1,911,564.79 from the proceeds of sale of the Macleay Street property in consideration for the withdrawal of a caveat by WFM to allow the Macleay Street property to be sold.
In September 2021, the hearing of the WFM proceedings took place before Kunc J. Those proceedings were adjourned during Giovanna’s cross-examination and Giovanna died during the adjournment. Walter was substituted as representative of her estate.
On 4 November 2022, Kunc J delivered judgment: WFM Motors Pty Ltd v Bar M Pty Ltd [2022] NSWSC 1500.
Ultimately, Giovanna’s claims were rejected by Kunc J’s findings in WFM Motors. Judgment was entered for WFM, and Giovanna’s cross-claim was dismissed.
Importantly, Kunc J accepted the evidence of Mr Colacicco, a real estate agent who assisted WFM and who gave evidence that:
Giovanna had approached him (and through him, Mr Politis) for the WFM Loan and understood it was to be secured against the Macleay Street property; and
on the evening of the drawdown, Giovanna thanked Mr Colacicco and Mr Politis and, in doing so, made reference to the sale of the Macleay Street property and repayment within 12 months: , Kunc J at [21], [92] and [94].
[139] I find that Giovanna’s general disposition was to trust and assist Paola, notwithstanding she had been “very upset” and “disappointed” that Paola had allegedly said (recalling it was Walter who had reported this to Giovanna) that Giovanna should be moved to a retirement home. It was against that background of trust that she would sign what Paola put in front of her: “Mrs Toppi said that because Paola was the oldest she had always trusted her and anything Paola asked her to sign she had signed”.
[140] Elsewhere in the interview Giovanna had said “I don’t want to have a bad relationship with [Paola]”. Dr Reutens also recorded “Ms Toppi said that she maintained a good relationship with Paola” and that “Ms Toppi stated that Paola and her husband had gone bankrupt in another business and she wanted to help Paola so Ms Toppi set her up in the business [Bar M]”.
[141] I do not regard this conclusion about Giovanna’s desire to help Paola as being inconsistent with Giovanna saying she did not want to leave Paola a legacy. The reason Giovanna gives for that is precisely her generosity in life to Paola. However, I am not persuaded that negatives the probability that Giovanna would have wanted to help Paola keep the restaurant (an eventuality that arose after the interview with Dr Reutens). As Giovanna is recorded as saying on the Bar M website (see [24] above) “As long as I live I will be here to support my daughter”.
[142] In reaching this conclusion I have also taken some support from the fact that Giovanna made these statements in circumstances where it was Walter who had taken Giovanna to see Dr Reutens, so there is no possibility of any proximate influence over Giovanna by Paola (as, for example, might be said to have occurred where it is the major beneficiary who has taken an elderly testator to the solicitor who prepares the testator’s will).
[143] This conclusion also corroborates, and fortifies my acceptance of, Mr Colacicco’s evidence that it was Giovanna who asked for Mr Politis’ help, volunteered the Property and later thanked Messrs Politis and Colacicco for their help in advancing the funds to pay the Settlement Sum.
[144] On a related topic, I find, as Dr Reutens recorded, that Giovanna intended to sell the Property and understood the process of selling. This again corroborates, and fortifies my acceptance of, Mr Colacicco’s evidence that Giovanna said to Mr Politis “I will sell the [Property]”. In reaching this conclusion I have not overlooked Mr Kidd SC’s submission that what Giovanna told Dr Reutens about wanting to sell the Property did not contemplate providing further financial support to Paola. However, as I have already observed, the need for such support did not crystallise until after the interview with Dr Reutens. The Report provides clear evidence of the importance Giovanna placed on having assisted Paola into the restaurant. That, in turn, I consider makes more likely the prospect that Giovanna would not have wanted that assistance to come to nothing by Paola being evicted from the restaurant, and therefore would have wanted to help Paola again when the dispute with the Bicher entities erupted as it did.
The report of Dr Reutens dated 25 June 2018, to which his Honour made repeat reference in the extract above, is not in evidence before me.
On 2 December 2022, Kunc J ordered that the judgment amount plus interest (totalling $1,301,167.16) was to be paid from the funds held in court.
On 6 February 2023, Kunc J made orders that WFM’s costs of the WFM proceedings (approximately $399,322.24), were to be paid from the funds held in court.
On 28 February 2023, WFM alleged that Bar M Pty Ltd remained in default on account of rent, in the order of $288,230, and sought to recover that additional amount from Giovanna’s estate pursuant to the guarantee.
In March 2023, WFM and Walter as administrator ad litem entered into a deed of settlement, whereby the claim for outstanding rent was settled.
In May 2023, orders were made for the release of money held in court in the amounts of $211,075.39 and $23,689.76 to be paid to WFM in reduction of the rental arrears.
In September 2023, Bar M Pty Ltd ceased trading, then owing a further $276,700.10 in back rent. The new lessor of the Neild Avenue premises, N G P Investments (No 2) Pty Ltd, accepted the fixtures and fittings in exchange for the rent owing and entered into a deed of surrender of lease and sublease to that effect.
It would appear that, sometime in late 2018 or early 2019, Toppi Martin Place Pty Ltd was incorporated to own and operate Toppi Bar & Restaurant, with Paola as its sole director. This was the first restaurant that Paola had set up without Giovanna’s involvement, although Paola says that the logo for Toppi Bar & Restaurant was based on Giovanna’s specimen signature of “Toppi” that she willingly provided.
No company search of Toppi Martin Place was provided in evidence by Paola and there is no evidence beyond assertion that BaseCove as trustee of the Cunningham Family Trust No 2 holds the shares in Toppi Martin Place. This is extremely odd given how much attention was given to the financial circumstances of Toppi Martin Place as informing the financial position of Paola. Walter does not make any submissions that I should not accept Toppi Martin Place as owned by BaseCove so I will proceed on the basis that it does. I have dealt with Paola’s financial position, and the importance of BaseCove to it, in more detail below.
On 22 February 2019, Toppi Martin Place executed the lease in respect of the premises in Martin Place, Sydney from which Toppi Bar & Restaurant was to operate (Martin Place premises).
The Martin Place premises were previously a “blank canvas” and required a full restaurant fit out, including the connection of necessary services.
Both Paola and Neil invested their superannuation into this enterprise, being $150,686 and $181,249.14 respectively. Neil also says that, in 2023, he invested his inheritance from his late mother into Toppi Bar & Restaurant, amounting to some $252,888.16.
On or around 25 November 2019, Toppi Bar & Restaurant commenced trade. The opening week and December 2019 traded well. January and February 2020 were relatively quiet months, and by March 2020 the COVID-19 pandemic significantly impacted trade.
The COVID-19 pandemic necessitated periods of closure and reduced trade and its impact continued throughout 2020, 2021 and early 2022. Given its Sydney CBD location, together with pandemic-related lockdowns and travel restrictions, the Martin Place premises were not located in an area conducive to takeaway opportunities utilised by other restaurants during this period, such as those introduced at Bar M.
Paola described a “brief bounce” in trade for Toppi Bar & Restaurant following the easing of COVID-19 related restrictions in 2022, but that trade was “sluggish” throughout 2023.
For the financial year spanning July 2021 to June 2022, Toppi Martin Place generated a net profit of $475,875 although that figure appears substantially skewed by the deferral or non-payment of rent, which I infer as being related to the COVID-19 pandemic.
On 19 February 2025, at the conclusion of a three-day hearing, I reserved judgment in these proceedings.
On 25 February 2025, Mr Beazley on behalf of Paola emailed my Associate copies of a notice of motion seeking leave to reopen Paola’s case. The motion was supported by an affidavit of Paola sworn 25 February 2025. In substance, that affidavit stated that Paola wished to bring certain matters to the court’s attention by reference to its annexures; specifically, that Investa had re-entered the Martin Place premises and terminated the lease due to non-payment of rent by Toppi Martin Place and that, having been terminated, the lease was no longer capable of assignment. Paragraph [5] of that affidavit, which was ultimately admitted into evidence subject to a limitation under s 136 of the Evidence Act 1995 (NSW) that it was received into evidence as a submission only, stated:
The circumstances contained in these pieces of correspondence significantly change the financial circumstances of Toppi Martin Place Pty Ltd. I no longer have the sale proceeds of the bond as a financial resource. My ability to repay my debts from the sale proceeds has gone.
The two items of correspondence relied upon and annexed to the Paola’s affidavit of 25 February 2025 were:
A lock out and termination notice dated 25 February 2025, issued to Paola and Toppi Martin Place by Mills Oakley as agent for Investa. The notice confirmed, inter alia, that Investa:
(a) had terminated the lease, re-entered the Martin Place premises and changed the locks; (b) would require Toppi Martin Place to pay a Make Good Amount to be determined by Investa; and (c) claimed to be entitled to damages, including for the loss of the benefit of Toppi Martin Place’s occupation of the Martin Place premises until the original expiry date of the lease.
An email also dated 25 February 2025 from the General Manager of Investa, Johanna Watson, which was sent to Paola. In substance, that email stated that the “lease is now at an end and so cannot be assigned”. Ms Watson then made plain that, even if the lease was on foot, Investa would refuse the proposed assignment to RSPD Capital for a lengthy list of reasons which are unnecessary to repeat here.
Walter conditionally consented to leave being granted to Paola to reopen her case to the extent of the affidavit of Paola sworn 25 February 2025 and its annexures. The conditions proposed included that paragraph [5] of the affidavit be read only as a submission (which it was), and that Walter be granted leave to rely on submissions in reply (which he was). In essence, those submissions in reply accepted that Investa had taken repossession of the Martin Place premises but emphasised the gap in the evidence as to the precise significance and consequence of that act, including the present-day value of Toppi Martin Place’s realisable assets, if any.
The notice of motion seeking to reopen Paola’s case was listed for hearing before me on 5 March 2025. At that hearing, it became clear that Paola’s evidence in support of the motion was not complete so I adjourned the hearing of the motion until 16 April 2025. To prepare the motion for hearing on that date, I ordered a timetable for Paola and Walter to each provide affidavits, objections and submissions in respect of it.
At the hearing before me on 16 April 2025, an amended notice of motion dated 18 March 2025 was filed in court by Paola without objection. The hearing then proceeded on the basis of the amended notice of motion. That amended motion was supported by an affidavit of Paola sworn 18 March 2025, which sought to adduce further evidence not only in respect of the change of circumstances with respect to Toppi Martin Place, but also to provide a supposedly more complete or accurate outline of Paola’s financial position in support of her claim for provision.
By way of summary, at the conclusion of the hearing on 16 April 2025, I determined that Paola was successful in her application to reopen her case, but only to a very limited extent to allow for the admission into evidence of truly fresh material concerning the termination of the lease in respect of the Martin Place premises and the consequent closure of Toppi Bar & Restaurant.
The additional material which Paola sought to adduce into evidence, but which I rejected, was material concerning her financial position which could and should have been prepared and adduced at the hearing on 17–19 February 2025 but was not. This included material that sought to supplement or correct evidence that was adduced at the February 2025 hearing, but which later proved to be incomplete, unreliable or erroneous in some material respect.
My full reasons for that decision are explained below in this judgment under the heading “Issue 1: Paola’s Application to Reopen Her Case”.
My mother enjoyed to gamble.
Giovanna’s gambling habits were well-documented in the evidence, including the following accounts:
Walter says that his mother was a “lifelong gambler” who was a founding member of Star City Casino when it opened in 1997.
Rosa gave affidavit evidence that Giovanna was “well known” at Star City Casino and she observed Giovanna playing Blackjack, Caribbean poker and poker machines at Star City Casino. Rosa also said that Giovanna often borrowed significant amounts of money from her, ranging from a few thousand dollars to ten thousand dollars, to pay debts or gamble at the Star City Casino. Rosa says that Giovanna always paid her back over a couple of weeks or months, except for the last loan of $30,000, which she says was repaid by Paola after Rosa was unable to cash a cheque given to her by Giovanna. Rosa also says that Giovanna would often call her late at night seeking to borrow money. Both Walter and Caterina agree that Giovanna would borrow money from Rosa, which would usually be repaid with interest.
Caterina says Giovanna was “a regular at the Casino all her life”.
Paola says Giovanna was “gambling heavily” in 2017, that Giovanna would occasionally call Paola asking for money to gamble either late at night or in the early hours of the morning (including one specific instance in or around August 2019 when Paola refused). Paola says Giovanna would frequently ask her for money on the promise that she would repay it “later” when the Macleay Street property was sold.
On or around 13 June 2017, Giovanna had a medical episode at Star City Casino and was admitted to St Vincent’s Hospital.
In evidence before me from Paola is a lengthy transcript of a conversation said to have taken place on 7 February 2018 between Giovanna, Paola, Walter and Mr Bicher. The circumstances in which the transcript came into being are not explained in the affidavit of Paola sworn 11 July 2023 to which it is annexed, and its genesis is unclear from the other evidence before me. No objection was taken to it. The transcript is studded with profanities, principally used by Paola. The level of frustration directly expressed by Paola towards Giovanna in the transcript is palpable, particularly stated in the form of Paola’s estimation that Giovanna’s children and grandchildren are worth nothing to Giovanna compared to her gambling.
Taking the content of this transcript at its highest, it would appear that, in or around February 2018:
Giovanna was gambling very heavily and experiencing significant financial difficulty as a result. This included an inability to pay the rent for the apartment in Double Bay, which she then shared with Walter, and a general inability to meet or manage her other liabilities such as a large tax debt, interest on loans and her living expenses. This is evident in Paola repeatedly telling Giovanna: “You have no money!”.
There is no way. I don’t have any money, I don’t have any money, do you want to put me on the street. Enough now, no more…
Each of these five observations are consistent with various aspects of the evidence before me, including evidence of both Paola and Walter in these proceedings in relation to Giovanna’s gambling habits and inability to manage her various debts and outgoings in her later years.
Sometime during 2020, amid their estrangement, Paola says that she emailed the Star City Casino asking them to limit Giovanna’s time gambling at the casino. However, the email to which she refers was not placed in evidence before me and therefore I can make no firm finding about this matter.
In or around August 2020, Giovanna failed to keep up with her health insurance payments and her policy was cancelled.
Walter gives evidence that, upon the sale of the Macleay Street property in or around April 2021, Giovanna instructed him to repay several debts from the proceeds. These debts included the repayment of funds Giovanna had “borrowed from various individuals she had met at the Star Casino”.
It is clear from the evidence before me that, particularly in her final years, Giovanna’s gambling habits placed significant strain on her personal finances, her business relationships and, to some extent, her family and friends. This strain became untenable with the arrival of the COVID-19 pandemic during which Giovanna’s various income streams – being income from Bar M and the commercial tenancies at the Macleay Street property – ran dry, placing Giovanna in serious financial difficulty.
I find that the Macleay Street property was sold not only due to the WFM Loan but due to Giovanna’s mounting debts and expenses (including losses incurred gambling), which Giovanna was no longer able to sustain.
I have already found that the relationship between Giovanna and Paola was characterised by periods of fallings out followed by periods of reconciliation. As continually witnessed by Walter in the manner recounted in his affidavit, at various times Paola and Giovanna clearly argued over many topics surrounding their businesses. Giovanna highlighted the disagreements she had with Paola and the distress they caused to Giovanna in the 2017 Statement accompanying the 2017 Will.
Paola described Giovanna as a “moody” person who valued hard work and supported each of Paola’s restaurant endeavours. I accept this evidence.
I also accept Rosa’s affidavit evidence that Giovanna was a demanding and impatient person.
Paola and Giovanna operated several businesses together during Giovanna’s lifetime. They appeared to recognise each other’s strengths in creating and running hospitality businesses. Giovanna was involved in all of Paola’s restaurant businesses up until Toppi Bar & Restaurant.
Whether these are properly characterised as Paola’s businesses or joint endeavours between Paola and Giovanna is, however, less clear. Both Paola and Caterina give evidence that the businesses of Sciue Sciue and Bar M (formerly Bar Machiavelli) were Giovanna’s ideas.
It is clear to me that, despite their difficulties and fallings out, there was a longstanding relationship between Giovanna and Paola, and that Giovanna frequently and substantially supported Paola during her lifetime. I accept Paola’s evidence that she rang Giovanna regularly during the periods in which they were in contact with each other before their relationship foundered (T53). I also accept Paola’s evidence that when Giovanna began to undertake haemodialysis in 2015, on occasion Paola would pick up Giovanna on Saturdays and spend time with her mother (T52–53).
I have found that Giovanna and Paola’s relationship irrevocably broke down in or around August 2019, some two years before Giovanna’s death. I have also found that the relationship between Paola and Walter became extremely strained or broke down around the same time.
In substance, while Paola and Giovanna were both sued by WFM in respect of the WFM Loan in the WFM proceedings, it is abundantly clear that they were in fierce opposition in relation to the circumstances in which that debt was incurred and their relationship did not survive that disagreement.
It is uncontroversial that this debt was incurred partly for the benefit of Paola in establishing Bar Machiavelli (later, Bar M).
As detailed above, Giovanna denied liability to WFM in circumstances which implicated Paola in, at the very least, equitable and moral wrongdoing. In this respect, the decision of Kunc J and the findings made in WFM Motors somewhat vindicate Paola and go some way to explaining her extreme anger and frustration toward her mother. Indeed, Kunc J’s decision is consistent with the evidence given by Paola in these proceedings, statements made by Giovanna in the 2019 Will, and contemporaneous statements by Paola and Giovanna that are in evidence before me, all of which appear to align with the evidence of Mr Colacicco as found in .
Well if [Giovanna] drops dead then we can frustrate the probate and settlement… here’s hoping.
That email was sent in response to Mr Beazley forwarding an email from the solicitors acting for Giovanna in the WFM proceedings – being the same solicitors who act for Walter in these proceedings – advising that Giovanna was then in the intensive care unit at St Vincent’s Hospital having undergone her second operation that week in what was her third hospitalisation during 2021. That same email chain advised that Giovanna was undergoing dialysis three days per week and was using a wheelchair.
For Paola to express the wish so callously for her mother to “[drop] dead” so that she could frustrate the probate demonstrates the harbouring of her extreme resentment towards Giovanna – and Walter – by that time. Whatever Paola precisely intended by the phrase “frustrate the probate and settlement”, given the pre-condition for its occurrence was the death of Giovanna, it is far more likely that this particular enmity was directed more toward Walter than Giovanna. So much was accepted by Paola in cross-examination. Paola says her reference in the email of 18 June 2021 to “frustrating” the probate and settlement was a reference to her desire to delay “the probate and settlement of the will” because she knew that “Walter would need the money” (T26–27). Paola says that she wrote these words partly in the hope that Walter would enter a settlement with her “without having to go to court” and partly with the intention to inflict “punishment” upon Walter for “how he’d been the last few years” (T27).
During cross-examination, Paola accepted that:
she last spoke to Giovanna in 2020 (T22);
she knew in June 2021 that Giovanna was very sick such that she might “[drop] dead” but did not speak to her and made no attempt to reach out to her (T25–26);
she did not visit Giovanna while Giovanna was in intensive care in June 2021 (T24);
she did not speak to Giovanna for the last 18 months of Giovanna’s life (T23);
she did not speak to Giovanna from 2020 onwards, despite the fact that she knew that Giovanna was becoming progressively more unwell (T55);
Giovanna was not invited to Marco’s wedding (T55–56); and
she did not make a telephone call to Giovanna to see how she was, even though she was very old and quite unwell (T56).
On 23 October 2021, Giovanna was admitted to St Vincent’s Hospital and remained there until her death eleven days later.
During these eleven days, Caterina and Walter both visited Giovanna. Walter says that in the last week of her life, Giovanna asked after Paola in anticipation of a visit from her. That visit never eventuated. Paola says she was kept abreast of her mother’s condition from hospital staff without providing any real detail of how she managed to do so beyond having a friend who was a nurse at St Vincent’s Hospital (T26).
Walter Senior died from lung cancer when Walter was 14 years old. Walter then became disinterested and withdrawn from his studies, leaving school after completing Year 9 (aged 15 years). Walter also became withdrawn from his interests and unmotivated to seek work. Walter was clearly significantly affected by the death of his father.
The death of Walter Senior caused Walter to become closer to Giovanna. Although their relationship was a complicated one, Walter considers that his relationship with his mother was mutually beneficial and caring.
I have no doubt that Walter was the primary carer of Giovanna, especially in the last years of her life. Giovanna recognised the care that Walter provided to her in the 2017 Statement accompanying the 2017 Will. Caterina recounts that Giovanna told her that Walter and Natalie cared for Giovanna. It is not to Paola’s credit that in cross-examination she refused to concede that from mid-to-late 2018 until Giovanna’s death in November 2021, Walter was looking after Giovanna and instead claimed that she was “looking after herself”, despite the fact that Paola admitted that Giovanna was using a wheelchair and had “very considerably reduced mobility” (T53). Paola’s evidence is particularly implausible, given that she admitted having no contact at all with Giovanna from 2020 onwards, together with the fact that she knew that Giovanna was becoming progressively more unwell (T55).
I reject the affidavit evidence of Rosa that Walter mistreated Giovanna in his care of her. Caterina says that her mother only ever complained about small and trivial things regarding Walter. Walter says that his mother bruised easily. As I have mentioned above, Rosa had no contact with Giovanna in the three years before her death (T62–63) and she ceased to have contact with Caterina at about the same time (T65). In addition, before that time, Rosa did not report to Caterina any concerns about Walter’s care and admitted that if she had any such concerns, she would have raised them with Caterina (T65).
Walter says that he loves Paola (T117). But his feelings towards Paola are clearly not reciprocated (T27).
Caterina’s relationship with Walter is good (T165) and Caterina supports Walter financially (which is discussed in detail below).
Prior to Giovanna’s death, Walter resided with her for almost his entire life. Walter was supported by Giovanna and, as mentioned above, Giovanna paid all rent and outgoings for them both.
Since 22 May 2023, Walter has been residing on his own in a two-bedroom rental property situated in Maroubra, New South Wales (Maroubra pr****operty). Walter has a service dog, a Staffordshire Bull Terrier. Happily, the Maroubra property includes a backyard which that dog apparently enjoys.
The rent for the Maroubra property is currently $925 per week. From the beginning of the lease of the Maroubra property, Caterina has paid Walter’s rent on his behalf. Those payments have been made directly from Caterina into the trust account of the leasing agent. These weekly rental payments are said to be provided from Caterina to Walter on the basis that they are part of a loan to be repaid by Walter.
Walter’s partner of 12 years, Natalie, resides with her mother Nadia and has done so since at least August 2022. Natalie suffered a stroke in February 2022 and has since undergone a rehabilitation regime with ongoing medication. Natalie appears to have made good progress, returning to work on a part-time basis in mid-2024 and earning approximately $400 to $500 per week.
Natalie stays with Walter at the Maroubra property about two nights per week and, while the stress of these proceedings has placed strain on their relationship, Walter hopes that he and Natalie will move in together in the near future and potentially start a family.
Walter is suffering from low mood, anxiety and post-traumatic stress disorder (PTSD) symptoms. He considers himself to have a flawed memory (T118). He also experiences gout, disordered sleep and high blood pressure. He has no private health insurance.
The overwhelming evidence is that Walter also suffers from some form of serious gambling addiction. Walter recognises that he has a problem with gambling and has expressed his desire to commence treatment for his gambling, as well as his acute PTSD and anxiety with Dr Mark Ryan (a consultant psychiatrist) and Dr Cameron McIntosh (a clinical psychologist). Dr Ryan and Dr McIntosh each charge approximately $600 per consultation and Walter says he does not have the financial means at the moment to engage their services.
Walter has only ever worked in the restaurant industry, mostly as a chef in businesses with the support of Giovanna.
In 2009, Walter suffered a serious assault during a robbery after hours at La Vecchia Cucina and sustained head injuries. This appeared to trigger further deterioration in Walter’s mental health. He ceased to operate La Vecchia Cucina in about 2012 and has not worked since. Walter is currently unemployed.
Walter says he is currently incapable of working or earning an income and that he presently receives JobSeeker benefits from Centrelink in the sum of $370 per week (those payments having commenced in August 2022).
I accept that Walter has a very poor employment history. It is not to Paola’s credit that in cross-examination she did not agree to this obvious proposition when it was put to her directly, claiming that Walter “never wanted to work”, and yet then accepted the proposition “absolutely” (T41–42). Paola refused to concede that Walter is “not likely to work in the future”, simply pointing to Walter’s age in comparison to her age (T42). I was not assisted by Paola’s evidence on that issue when the overwhelming objective indications are that Walter’s future employment prospects are highly doubtful, at best.
Walter set out his financial position in these proceedings by affidavits sworn on 6 December 2024 and 13 February 2025, respectively.
Walter has no substantial savings and no significant assets, save for a motor vehicle which he purchased recently for approximately $4,000 (T158) and his late mother’s possessions including some furniture and paintings.
Caterina agreed to financially support Walter with a loan until the outcome of this litigation (T165). Caterina will continue to support him if he needs money (T173–174).
By way of the loan, Walter is also dependent on Caterina for other forms of financial assistance, including by way of cash or electronic payments in amounts ranging from $300 to $500 per week, to assist Walter with his living expenses such as bills and food.
As mentioned above, I accept Walter’s denial of the proposition that Caterina is holding money for him until after the proceedings are over (T156) and accept that Caterina has maintained a ledger for the loan (T156) which, together with bank documents, shows that Caterina has lent $214,792 to Walter. I accept Walter’s evidence that he has paid $250,000 to Caterina as repayment of the loan plus interest (T155–6).
Walter says his present monthly living expenses are about $5,943, as itemised below:
rent: $4,008;
food: $1,320;
dog food and maintenance: $175;
home essentials: $100;
telephone and internet: $90; and
gas and electricity: $250.
The above amounts are said not to include the money Walter uses for gambling.
On 19 November 2024, pursuant to an order of this court, the sum of $1,000,000 was transferred from Giovanna’s account with Westpac Banking Corporation (Giovanna**’**s WBC account) to the solicitors acting for Walter in his capacity as executor of Giovanna’s estate. Those funds were distributed as follows, in accordance with Walter’s instructions:
Levitt Robinson Solicitors (LRS) retained $700,000 for fees incurred and anticipated in these proceedings and other matters conducted on behalf of Giovanna’s estate.
On 28 November 2024, LRS paid Caterina the sum of $250,000 in purported repayment of loans advanced by her to Walter.
At or around the same time, LRS drew a cheque in Walter’s favour of $50,000.
Eight days later, on 6 December 2024, Walter gave sworn evidence in these proceedings that he had $250 in his bank account and no substantial assets. There is no evidence before me as to what became of the $50,000 he received.
I will preface this section of the judgment by noting that Paola does not seek provision out of a notional estate and Walter’s bank statements are not in evidence before me, either through tender by Walter or Paola.
In August 2021, the sale of the Macleay Street property settled.
On or around 10 August 2021, after the discharge of liabilities and payment of fees, the balance of the proceeds of sale in the sum of $4,183,587.31 was paid into Giovanna’s WBC account.
Giovanna died less than 3 months later. She was hospitalised from 23 October 2021 until her death on 3 November 2021.
I am seriously troubled by the evidence before me – or, rather, the lack of evidence – concerning a series of large transactions conducted on Giovanna’s WBC account in her final days and the whereabouts of substantial funds which were apparently dissipated by those transactions.
The following five transactions are of particular concern:
On 22 October 2021, the sum of $259,500 representing a 10% deposit for the purchase of a Bondi Junction apartment was withdrawn from Giovanna’s WBC account and paid to Bondi Land Pty Ltd. These funds were paid in addition to a holding deposit of $5,000 paid on 8 October 2021 by Giovanna, the apartment having been inspected by both Giovanna and Walter. Following Giovanna’s death, this purchase did not proceed and the total of $264,500 was refunded to the trust account of Walter’s solicitors, LRS. Those solicitors retained $61,287 on account of then anticipated costs and disbursements, $170,000 was paid to Walter on 4 May 2022 and $33,213 was paid to Walter on 14 July 2022. There is no evidence as to where that total of $203,213 has gone after it was received by Walter.
On 25 October 2021, the sum of $299,000 was transferred from Giovanna’s WBC account to Walter’s ANZ bank account. Walter says this followed a request from Giovanna to do so owing to her concern to ensure that he had sufficient funds to live and pay rent. Walter also says that Giovanna was concerned that, following her death, Paola may seek to “frustrate” probate of Giovanna’s estate being granted. There is no evidence as to where that $299,000 has gone after it was received by Walter.
On 27 October 2021, Walter withdrew $10,000 in cash from Giovanna’s WBC account. Walter says that he acted on Giovanna’s request that he make this withdrawal and give the funds to her friend, Lee (referred to by his first name only), who Walter described to be a man who had lent Giovanna monies at the Star Casino.
On 28 October 2021, the following day, Walter withdrew $24,000 in cash from Giovanna’s WBC account. Walter says that Giovanna again requested that he make this withdrawal and give the funds to Lee, which Walter says that he did. In circumstances where Giovanna was hospitalised, it is unclear to me why, if indeed there was a debt of $34,000 owing to Lee, this had to be paid in two instalments rather than one. There is no evidence from Walter as to when, where, why or how these funds were paid to Lee.
Q. You’ll see $259,500 deposit?
A. Correct.
Q. You give evidence that those moneys have been repaid back to you?
A. Correct.
Q. On the next page, that is page 10, you’ll see that $290,000 went to your solicitor’s trust account?
A. Yes.
Q. $299,000 you withdrew?
A. Yes.
Q. $300,000 you withdrew on the second of the 11th?
A. Yes.
Q. And those moneys, those are in your account are they not?
A. I don’t know the exact figures, where they went. Like I can’t recall if someone back paid a solicitor or my mother’s and my costs of - yes, but everything that was taken was taken with the knowledge of my mother under the directions of my mother.
…
Q. These amounts that came out on the 27th and the 28th amounting to 54,000, where did you put those moneys?
A. I don’t have it. I believe it’s in my affidavit where I put those moneys.
Q. You had the benefit up to the date of your mother’s death of $1.3 million?
A. 1.3 million, no.
Q. Those amounts--
A. I think you’ve done calculation incorrect.
Q. You have 300,000?
A. No, I think you’ve done your maths incorrect Mr Beazley.
Q. The amount--
A. You’ll find your figures are incorrect Mr Beazley, please.
Q. Would you like to tell me how much you took--
A. No, but I’m telling you they’re incorrect.
Q. Would you like to tell me how much you had?
A. Why don’t you tell me? You’re the one with the figures.
Q. Well I just did and you told me it’s incorrect.
A. I’m telling you they’re incorrect.
Q. Tell much you did--
HIS HONOUR
Q. Mr Toppi, what is the correct--
A. I think it’s around 750 or 800,000 supposedly is the figure.
When asked further questions as to what became of this money, and why he required the assistance of Caterina to pay his rent in May 2023 and following, Walter simply said that he “needed financial assistance at that stage” and that the funds he had received were “spent in rent”, spent on Giovanna’s gravestone, and that “there was a lot of money spent that was spent between there and then” (T149).
It is questionable as to whether all transactions conducted on Giovanna’s WBC Account were conducted with her knowledge and under her instruction, particularly in respect of the transaction on 2 November 2021, the day before Giovanna died. However, there is simply not enough evidence for me to make any finding about this.
The state of the evidence about this matter – or, rather, the lack of it – was raised and elaborated upon (under invitation) by counsel for Walter in closing oral submissions during an exchange with me (T215-16):
CONDON: … Now, I fully accept that he received some money from the estate; I think it was about 700,000, which he doesn’t account for. In his affidavit, he does refer to matters such as monuments being built for his mum and things like that, but it’s only scratching the surface of that money he obtained.
HIS HONOUR: What’s happened to the money?
CONDON: He doesn’t give an explanation; I can’t give your Honour an explanation. But there’s no doubting that his current circumstances are not the subject of any feigning: he’s been renting accommodation; he has the medical evidence; he’s on JobSeeker. His bank accounts were not subpoenaed; they’ve not been put before your Honour. He’s in a very bad position.
HIS HONOUR: Why can I not use the failure of him to disclose his full financial circumstances against him in a similar way as to what you’re seeking to do against the plaintiff?
CONDON: I accept that your Honour can draw a conclusion from his failure to give evidence about that money, that there’s an unexplained use of that money. The only point of distinction is there’s no obligation on him to give full disclosure, but I accept that’s a limited difference between the parties. One asks the question, having regard to his evident circumstances and the fact that Caterina is still lending him money, he may be wasteful with his money, no suggestion he’s hiding it.
But he needs more funds, and I don’t think it can be said, vis-à-vis Caterina, that the money she was providing him was anything other than a fair dinkum loan, required to meet his day to day expenses. That was her evidence; that was the document, and she was charging interest.
HIS HONOUR: See, I can’t assume that he’s still got the 700.
CONDON: No.
HIS HONOUR: But can I assume he spent it?
CONDON: Yes, and the reason I say that, being candid for Court, is he set out in his circumstance, in his affidavit, were his present circumstances, and he says he’s got no assets, speaking at the time of affidavit. So, that’s why, with great respect, I think your Honour’s observational question is probably answered in the affirmative.
HIS HONOUR: Right.
CONDON: Unsatisfactory, but it doesn’t mean that he’s still lacking in needs; patently, he has very significant needs.
The total of the transactions that are said to have benefited Walter following settlement of the Macleay Street property was later agreed by the parties to amount to some $802,213 (T148).
As I have stated above, I do accept that Walter no longer has that money. I find that it was most likely gambled away.
In 1990, Paola married Neil. As mentioned above, together they share two adult sons, Marco and David, and one granddaughter.
As well as the restaurant business ventures Paola has undertaken across the past decade or so (Sciue Sciue, Bar Machiavelli, Bar M and Toppi Bar & Restaurant), Paola was also involved in another unsuccessful business over five years from about 2005 to 2010 which had a dramatic impact on her circumstances, being her investment in Luxe Studios.
As recounted above, following the enforcement of a guarantee by NAB, in 2011 Paola and Neil were forced to sell their home, the Wylde Street property, and have lived in rented accommodation ever since.
Neither Paola nor Neil owns any real property.
It is suggested in the evidence of both Paola and Neil that funds in the order of about $2.9 million were advanced to the Cunningham Family Trust following the sale of the Wylde Street property and that those funds were utilised to discharge their liabilities to NAB.
The trust deed that established the Cunningham Family Trust (formerly known as the Jones Family Trust) is in evidence before me. It is a discretionary trust with BaseCove as the trustee. Paola and Neil appear to be the directors of BaseCove and are beneficiaries of the Cunningham Family Trust.
In Paola’s affidavit sworn 16 August 2024, Paola explains that BaseCove owes Paola and Neil in excess of $2.9 million for the loan they made to it and that BaseCove used what remained of the proceeds of sale of the Wylde Street property to operate subsequent restaurants, including Toppi Bar & Restaurant. Paola says that as “those restaurants generated income, the loan to the trust was paid down (it paid down what we had lent)”. The tax returns filed on behalf of that trust make plain that BaseCove owes that amount to Paola and Neil in its capacity as trustee of the Cunningham Family Trust and it is listed as an “unsecured loan” from “related parties”.
There are no financial statements of BaseCove in evidence.
Paola and Neil presently reside, together with their two dogs, in a two-bedroom apartment on Macleay Street, Elizabeth Bay. They lease the apartment. The rent payable is $1,600 per week and was previously being paid to the leasing agent by Toppi Martin Place, as directed by Paola.
During cross-examination, Paola clarified that while she did not receive a wage from Toppi Martin Place as such, Toppi Martin Place did pay her rent and her “living expenses”. Her rent was paid fortnightly by direct debit to the bank account with Commonwealth Bank of Australia (CBA) held by Toppi Martin Place (Toppi Martin Place CBA a****ccount).
The fact that Toppi Martin Place was being directed to pay Paola and Neil’s weekly rent in Elizabeth Bay was a matter disclosed in her affidavit sworn 16 August 2024.
(a) Personal bank account with CBA standing in credit in the amount of approximately $3,000 in August 2024. (b) Clothing and personal effects including home furnishings, a watch and some jewellery of some age (with no value ascribed to these items). (c) A collection of paintings, each purchased for less than $5,000 or gifted to her, with an estimated total value of $20,000. (d) As mentioned above, the debt owing to both Paola and Neil by BaseCove in its capacity as trustee is notionally in the order of $2.9 million. Paola’s affidavit sworn 16 August 2024 states that there were no assets or income remaining available to BaseCove in its capacity as trustee with which it could hope to pay the balance of the loan owing to Paola and Neil. This is loosely supported by a financial statement pertaining to the Cunningham Family Trust ending 30 June 2022 which lists its total assets as being $285,212 and its total liabilities as being $2,929,848. Accordingly, the debt is likely to have no significant value. (e) An unsecured debt owing to Paola by Toppi Martin Place in the order of $166,199. The loss of Toppi Bar & Restaurant – the business of Toppi Martin Place – means that this debt is unlikely to be repaid. Accordingly, the debt is likely to have no value. (f) Shareholdings in NPMD Pty Ltd (formerly Bar M) which, it is asserted, has ceased trade and has no assets, and shareholdings in Hospitality Placements which is under administration. Those shareholdings are therefore of no value.
(a) A personal debt to Rosemarry Brodribb in the amount of $30,000 (beyond an assertion, there is no evidence before me supporting this). (b) A personal debt to Marco in the amount of $50,000 (beyond an assertion, there is no evidence before me supporting this). (c) A director penalty notice issued in respect of Bar Machiavelli Pty Ltd concerning unpaid superannuation amounting to some $175,210.16.
(a) $6,933 for rent. (b) $535 for health insurance. (c) $139 for medicine. (d) $500 for home essentials and food. (e) $450 for gas and electricity. (f) $217 for telephone services. (g) $260 for personal grooming. (h) $173 for pet food and maintenance.
Paola also gives evidence that she requires dental work costing in the order of $10,000.
Paola also has liabilities that she has incurred for the costs orders that have been made against her in favour of Giovanna’s estate in these proceedings. Those amounts have not yet been quantified by assessment or agreement.
A single, accurate list of Paola’s assets and liabilities supported by evidence was not able to be produced either before, or during, the hearing. The above list has been produced by the amalgamation of various lists produced by Paola at various times, ignoring the many obvious errors which conflate assets and liabilities of Paola with those of Toppi Martin Place.
Examples of purported liabilities attributed to Paola which have been omitted include:
The liability of guarantor under the Deed of Company Arrangement (DOCA) relating to Hospitality Placements. The DOCA is in evidence and the guarantor is Toppi Martin Place, not Paola. I note also that the amount owing is $52,600.04, not $56,600.04 or $52,400 as suggested elsewhere in the evidence.
The liability to Investa for outstanding rent in respect of the Martin Place premises which was, for some time, purported to be personally guaranteed by Paola but at the hearing on 5 March 2025, this was finally clarified to the contrary (T3–5).
Outstanding debts to VW Finance in relation to a Volkswagen Golf registered to Martin Toppi Place, which were at times wrongly attributed to Paola.
A debt owing to Davidson Accountants in the order of some $58,648.94, which was at times described as both a debt of Toppi Martin Place and of Paola and about which there is no evidence which suggests or supports it is as a personal liability of Paola.
A debt said to be owing to Citibank in relation to a credit card. In her affidavit sworn 16 August 2024, Paola referred to this as a personal liability. In one document later produced by Paola and admitted into evidence, a debt of $10,781,54 owing to Citibank is described as a debt of Toppi Martin Place and there is no entry in the list of Paola’s debts naming Citibank as a creditor. That document offers little comfort either way as it has later revealed itself as being replete with errors and completely unreliable. Under cross-examination, Paola herself referred to use of “the credit card” when discussing transactions conducted on behalf of Toppi Martin Place (T71). No statement in relation to the credit card is in evidence before me.
Notices of Assessment issued to Paola in respect of financial years ending 30 June 2021 and 30 June 2022 reveal a modest taxable income in those years of $22,826 and $22,366 respectively. Paola’s taxable income in respect of the financial year ending 30 June 2023 was the much greater amount of $167,356. There is no evidence before me as to Paola’s taxable income for the financial year ending 30 June 2024 or her expected income for the current financial year.
Despite all that was said by way of written and oral evidence about hopes for two-bedroom apartments and pasta bars, on what would have been the final day of the hearing (before the application to reopen the case was made), the amount Paola is seeking by way of provision from her mother’s estate was confined to $750,000. There was no change sought to this amount after I determined the application to reopen.
The amount of $750,000 is sought in addition to forgiveness of Paola’s liability to the estate as a co-guarantor in respect of the WFM Loan, and forgiveness of her liability to the estate to pay costs thrown away as ordered by Pike J on 29 August 2024 (in respect of which an application that those costs be paid on an indemnity basis has not yet been made by Walter).
In effect, Paola is seeking just less than 50% of the amount held in Giovanna’s WBC account of $1,510,264.27, which is the principal asset of the estate.
As to the amount that is said to constitute Paola’s liability to the estate as co-guarantor, Walter says that amount is, or would be, in the order of $967,626.90, representing approximately 50% of the $1,935,254.55 paid by the estate to WFM following judgment in WFM Motors.
In cross-examination, Paola did not accept the amount to be as high as $1 million and suggested she thought it would be about half of that amount (T21).
In closing submissions, counsel for Walter said of the approximately $400,000 incurred by the estate paying WFM’s costs of the WFM proceedings (T214):
… we accept that the $400,000 may as a matter of morality be a cost which the estate incurred and not Paola. Paola didn’t choose to fight the case. She abandoned it. But nonetheless it would be a costs guarantee which would include the costs of the litigation…
While this submission raises an interesting point of law, I did not receive any submissions on behalf of Paola suggesting any contrary amount was, or would be, owing or why that would be the case as a matter of law such as, for example, that the principle of equality of contribution would not apply. Paola did not raise any of the exceptions to that principle or any argument that, if the matter were litigated, Paola might seek to argue for some form of apportionment in equity of the kind argued before Kunc J in AMP Bank Ltd v Brown [2017] NSWSC 313.
As Paola’s liability in equity as co-guarantor of the WFM Loan is not being litigated before me, and in light of the submissions received, I will proceed on the footing that the general principle of equality in the right to contribution applies, one of the more recent authoritative expressions of which can, as it happens, be found in the judgment of the High Court in Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4, French CJ, Kiefel, Bell, Gageler and Keane JJ at [32]. See also Dering v Earl of Winchelsea (1787) 1 Cox 318; (1787) 29 ER 1184; Mahoney v McManus (1981) 180 CLR 370; [1981] HCA 54, Gibbs CJ (with whom Murphy, Aickin and Wilson JJ agreed) at 376; Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; [1969] HCA 55, Kitto J at 349–51; all of which were cited by Kunc J in A**MP Bank, at [30]–[39].
Absent any submissions to the contrary, to the extent it was necessary for me to ascribe a value to it for the purpose of these proceedings, I have regarded Paola’s potential liability to the estate in equity as co-guarantor of the WFM Loan to be in the order of $967,626.90.
Finally, during Paola’s closing submissions delivered at the hearing on 19 February 2025, it was also made plain that, in the event Paola was “successful” in these proceedings, she would not seek any costs order in her favour and Paola did not resile from that position following her application to reopen (T208–210). Importantly, the phrase “successful” was plainly intended by Mr Beazley to mean something more than a success in the technical sense of achieving any order for provision and the apparent concession as to costs was more fully explained and qualified by the following exchange (T209–210):
CONDON: I’m grateful to my friend. Your Honour would also need to take into account in terms of what is being sought the fact that Mr Beazley’s affidavit of 17 February, the costs affidavit that your Honour received yesterday morning, estimated his costs to be $146,000. So presumably what would happen is, if your Honour was minded to grant the relief in the figure of $1.2 million, there would be an award of $750,000 plus Mr Beazley’s costs in excess of $100,000. One only needs to state that proposition having regard to Walter’s needs to see, with great respect, it doesn’t lack a sound basis in reality.
CONDON: It’s not very satisfactory, with respect, that your Honour is being given a figure which is untethered to any particular goal.
BEAZLEY: Why?
HIS HONOUR: You can say something in reply.
BEAZLEY: I was just going to say about the costs. We’re not seeking costs. Our costs.
CONDON: I withdraw the submission. I was relying upon the affidavit that was put before the Court.
BEAZLEY: That’s put as a liability.
HIS HONOUR: Just so I understand, if you were successful in the proceedings, you would not seek an order for the payment of your client’s costs?
BEAZLEY: No, it would be rude of me to ask forgiveness of a costs order and then seek my own costs. So that would be only put as a liability of the plaintiff.
HIS HONOUR: I need to be a little bit more clear about this. Do you say that any part of what might be fashioned in orders in this would include an offset or a payment of your client’s costs in these proceedings?
BEAZLEY: Sorry, let me start again. What my client seeks is the forgiveness of the WFM debt.
HIS HONOUR: Yes.
BEAZLEY: Forgiveness of the order that she pay the costs thrown away, and $750,000. But would not seek her own costs.
CONDON: That’s still a part of this issue.
BEAZLEY: It’s still a liability she has to pay out of her money, anything she’s given.
HIS HONOUR: All right, thank you.
CONDON: I’m grateful to my friend. That issue has been cleared up, I’m grateful. In essence it’s now, the net sum going to Paola is about $600,000. Any doubt I had about the issue about indemnity costs and solicitor client costs disappeared, because the affidavit discloses as $146,000 up to the end of the hearing. So that’s $600,000.
The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place…
This statement of principle from Urban Transport Authority has been cited with apparent approval in numerous cases including Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132, Einstein J at [4]; Gaskin v Ollerenshaw [2010] NSWSC 788, Garling J at [21]–[22]; N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561, Harrison J at [26]; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, Harper and Tate JJA and Beach AJA at [26]; Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706, Henry J at [44]; Cappello v Scrivener (No 2) [2021] NSWSC 168, Stevenson J at [46].
The approach taken by the court in determining applications for leave to reopen will differ depending on the context and the time at which the application is made. Where an application is made to reopen to adduce new and additional evidence before judgment is delivered, it will be relevant to consider whether there was a deliberate or tactical decision made not to call the evidence during the hearing. If there was a deliberate decision not to call it, ordinarily that will weigh heavily, and perhaps decisively, against the application. If such a decision was not made, the primary consideration is then whether the reopening of the case would cause embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36, Brennan, Dawson, Toohey and Gaudron JJ at 266–7.
In Cappello, Stevenson J at [46] referred to settled principles upon which the court acts when faced with an application to reopen. While that case concerned an application following the delivery of judgment, the applicable principles set out in it which are relevant to the matter before me include (references omitted):
(a) the overriding question is whether the interests of justice are better served by allowing or refusing the application;
(b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard;
(c) classes of cases in which leave may be granted include, but are not limited to where:
(i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;
(ii) there has been inadvertent error;
(iii) there has been a mistake in the apprehension of the facts; and
(iv) there has been a mistaken apprehension of the law.
(d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court.
(e) nor is leave to be granted “simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put”…
(a) the importance, relevance and probative value of the proposed new evidence to the issues in the case;
(b) the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs;
(c) the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing;
(d) the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense;
(e) whether the occasion for calling the further evidence ought reasonably to have been foreseen; and
(f) any delay in making the application.
Of course, whether a party is permitted to reopen their case is a matter for the discretion of the court and that discretion must be exercised having regard to all the circumstances of the case and in a manner consistent with the public interest in the just, quick and cheap resolution of the real issues in the proceedings: Goodman Fielder, Henry J at [48], citing Taouk v Louis (No 1) [2014] NSWSC 656, Darke J at [11]; Owners — Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682, Stevenson J at [43]; and Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707, Gleeson JA at [15].
In determining this application, I must seek to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 56(1) and 56(2) of the CPA.
In seeking to give effect to this overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57 of the CPA.
In deciding whether to make any order of a procedural nature, and the terms on which any such order is to be made, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA. For the purpose of determining what are the “dictates of justice” in this particular case, pursuant to s 58(2) of the CPA, I must have regard to the provisions of ss 56 and 57 of the CPA and may have regard to the matters listed in s 58(2)(b) of the CPA to the extent to which I consider them to be relevant. Those matters include:
the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;
the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;
the degree to which the respective parties have fulfilled their duties under s 56(3) of the CPA;
the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and
any other matter I considered relevant in the circumstances of this case.
While it is of no moment in these proceedings, it is noted that the Act also expressly contemplates the making of an order for provision in favour of an eligible person in whose favour a family provision order has previously been made in relation to the same estate, where the court is satisfied that there has been a substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in their favour: s 59(3)(a) of the Act.
To begin my analysis, I note that none of the above principles or relevant factors were addressed by Paola, either in her written submissions or her oral submissions during the hearing of the motion to reopen. Initially, this made it very difficult to understand the true merit of the application being made. That difficulty was fleeting though.
In substance, the material advanced in support of the motion fell into two broad but distinct categories:
truly fresh evidence arising from events which took place on or around 25 February 2025; namely, Investa’s re-entry into the Martin Place premises and termination of the lease; and
material which could and should have been prepared and adduced at the hearing held on 17–19 February 2025 but was not, including material which sought to supplement or correct evidence that was adduced at the hearing, but which later proved to be incomplete, unreliable or erroneous in some material respect.
Turning first to what I have characterised as the truly fresh evidence, my consideration of this aspect of the application will be brief.
Ultimately, Paola was successful in her application to reopen her case, but only for the purpose of admitting this truly fresh evidence as to the events which occurred on or around 25 February 2025. These events culminated in the loss of Paola’s opportunity to sell what was, indirectly, her principal asset, the business of Toppi Bar & Restaurant owned by BaseCove as trustee of the Cunningham Family Trust through its ownership of the shares in Toppi Martin Place.
It is only with the benefit of this fresh evidence that I can properly consider the “whole picture”, at least in broad outline, of Paola’s current financial position: Collings v Vakas [2006] NSWSC 393, Campbell J at [67]. In this way only, the interests of justice are “better served” by allowing the application, applying the guiding principle from Urban Transport Authority.
In reaching this conclusion, I am acutely aware that Paola’s evidence as to her financial position was hardly comprehensive. This is addressed further below but for present purposes it will suffice to say that Paola’s evidence as to her financial position was rife with miscalculations and was marred by a consistent failure on Paola’s part to distinguish between her own assets and liabilities and those of Toppi Martin Place. This elision was reflected in her evidence during cross-examination, during which it became clear that assets and income of Toppi Martin Place were treated by Paola as her own (see, for example, T78–79). While their fortunes may have been intertwined, it is a basal proposition that the assets and liabilities of Toppi Martin Place are distinct from those of Paola.
Despite this, in the indirect manner I have expressed above, it is sufficiently clear that Toppi Bar & Restaurant was Paola’s principal asset and one which she had hoped to sell. It was submitted in the main proceedings that the proceeds of the proposed sale of Toppi Bar & Restaurant – which was then uncertain and under negotiation – was evidence of resources that Paola was likely to have at some point in the future (T111). Absent a lease in favour of Toppi Martin Place, the prospects of realising substantial funds from that process now appear slim. Paola is now left with a business of greatly diminished value and certainly much less than the value attributed to it at the hearing on 17–19 February 2025.
There could be no question as to whether evidence concerning events that took place on or around 25 February 2025 was available to be produced at the hearing which concluded some six days prior. Those matters were clearly fresh evidence. So much was accepted by Walter during oral argument at the hearing on 16 April 2025 (T41–42).
The same cannot be said for the balance of the evidence that was sought to be adduced, being the evidence which I have broadly characterised as evidence which could and should have been prepared and adduced at the hearing on 17–19 February 2025 but was not.
To the extent Paola’s application concerned or contained material of this kind, it is rejected for the following reasons:
Assuming this was not a case where there was a deliberate or tactful decision not to call or produce this evidence, my primary concern falls to the prejudice that would be occasioned to Walter if I were to allow the balance of the material into evidence in the main proceedings: Smith, Brennan, Dawson, Toohey and Gaudron JJ at 266–7.
The prejudice to Walter here is marked in circumstances where the material sought to be admitted would necessitate a further hearing date to allow that evidence to be tested, including by way of cross-examination, subpoenas and notices to produce, with the consequential costs that course would entail. At the hearing of the motion to reopen, Paola was either unwilling or unable to meet those costs if I were minded to allow her application completely (T40). It follows that those costs would likely burden and further diminish Giovanna’s estate. Such a course would also further delay the outcome to these proceedings in circumstances where Paola is not without fault.
Walter has demonstrated significant need, continuing to rely on the goodwill of Caterina to fund his basic living expenses. Walter has also demonstrated medical needs which he is not presently able to meet, and which have been exacerbated or aggravated by these proceedings.
As noted above, the original hearing of this matter, set down before Pike J in August 2024, was vacated due a lack of information as to Paola’s financial position owing to the then potential sale of Toppi Bar & Restaurant, then being a matter which had “only recently emerged and been clarified”: The Estate of Giovanna Toppi, Pike J at [47]. At this time, Pike J observed that Paola’s conduct of the proceedings had unnecessarily prolonged the litigation and caused stress and anxiety to Walter: at [50]. This view is consistent with my own impression of Paola’s conduct in the proceedings before me, some six months later.
Paola offered no explanation for the delay in producing this further evidence in circumstances where not only was the occasion for it “reasonably foreseeable”, but Walter submitted, both before and during the hearing, that Paola’s evidence as to her financial position was seriously lacking in material respects (for example, in Walter’s opening submissions dated 27 August 2024 at [42]–[47] and closing oral submissions on 19 February 2025 at T204–207).
Ultimately, as I have made plain, much of the material which falls into the second category sought to raise or correct matters relating to aspects of the evidence that had already been put before me.
(1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
(2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.
(3) An application is taken to be made on the day it is filed in the Court’s registry.
[23] … Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).
[24] The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12-month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.
The 12-month limitation period for the bringing of such applications is not a mere formality or procedural rule; it is a substantive provision laid down by the statute and should be treated as such: Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [98]; Stone v Stone [2016] NSWSC 605, Brereton J at [36].
A useful summary of the principles applicable to the determination of an application seeking an extension of time, cited in full by Griffiths AJ in Anderson v Yongpairojwong [2023] NSWSC 1359, at [255], appears in Thomas v Pickering [2011] NSWSC 572, Hallen AsJ at [84]–[90]. Paraphrasing Hallen AsJ, those guiding principles are as follows (citations omitted):
The court’s decision to extend the time in which an application for provision may be made is a discretionary decision unbounded by rigid rules or statutory criteria other than the threshold requirement of sufficient cause being shown.
Considerations relevant to the exercise of the discretion under s 58(2) include, principally, any reasons for the lateness of the claim, as well as whether any beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by any of the parties; and the strength of the applicant’s claim (as determined by the court).
Potential prejudice to the beneficiaries means any prejudice arising from the delay in lodging the claim rather than any disappointment consequent upon readjustment of the interests under the will in order to make provision for the applicant. A lengthy lapse of time between the deceased’s death and the bringing of the application may itself generate prejudice.
“Unconscionable conduct” in this context refers to any deliberate delay in commencing proceedings calculated to induce in the beneficiaries a false sense of security; however, it is unlikely that a change of mind due to some change in the material or financial circumstances of the applicant that occurred after the expiry of the limitation period amounts to unconscionable conduct.
Where the delay in bringing the application is not excessive and the estate is yet to be distributed, a lack of knowledge about the right to bring a claim during the 12 months post-death, together with a prompt application to extend the time upon the right to claim becoming known, will usually be a sufficient explanation.
The applicant bears the onus of establishing sufficient cause.
The expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: [2012] NSWSC 184, White J at [39]; [2014] NSWSC 1055, Hallen J at [119]. In , Hallen J at [125] considered in relation to sufficient cause, that the court must consider not only the period prescribed by s 58(2), but also the period after those 12 months had expired and before the proceedings were brought, since that lapse of time will ordinarily induce in executors and beneficiaries a legitimate assumption that there will be no challenge to the will.
… In Re Dun (Deceased) (1956) 56 SR (NSW) 181, Myers J (at 183) suggested that such conduct by an applicant might include electing to be bound by the will or, knowing of his or her rights, delaying for a long period to make an application or lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies will not be disturbed, or refrain from requiring a speedy distribution of the estate. A particular prejudice which may have to be considered is that which flows from allowing an out of time application to proceed, if that would or may have the effect of improving the applicant’s position, from that which would have existed if it had been made in a timely way: Durham v Durham at [37], [56], [87] (Tobias JA; Campbell and Young JJA agreeing).
Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. …
Paola submits that she first claimed provision in her defence to the amended statement of cross-claim filed 14 November 2022 and then again in her amended statement of claim filed 22 November 2022, calculating that her application for provision was either commenced 11 or 19 days outside the period provided in s 58 of the Act. Paola argues that because she received leave to file each of those documents, ss 64 and 65 of the CPA have the effect that the application was brought in time.
Paola says that, in light of the uncertainty as to which of Giovanna’s wills would be admitted to probate and the lack of any suggested prejudice identified by Walter, the court would extend the time pursuant to s 58(2) of the Act for the short period required.
Walter says that the onus is borne by Paola to show sufficient cause to bring an out of time application and that the mere change of mind on her part would not ordinarily constitute a sufficient explanation for her delay, citing Henry. Walter argues that no explanation was given by Paola as to why there was a delay in seeking a provision order and that this failure is telling because the court should assume that any attempted explanation would not have assisted her.
Walter conceded that he could not identify any prejudice if an extension of time was granted over and above Giovanna’s estate having to incur further legal costs.
Walter relies on two matters which support his submission that Paola should not receive an extension of time for the filing of her provision application.
First, Walter relies on the evidence given by Paola that she made a forensic decision not to bring a provision claim within the prescribed period having discussed with her solicitor, Mr Beazley, her rights to bring such a claim before commencing the proceedings and acting upon his advice (T30). Walter says that Paola’s eventual decision to bring a provision claim was on her evidence provoked by subsequent advice received from Mr Pesman SC (T41). Walter argues that because the substance of the advice received from each of Mr Beazley and Mr Pesman was not put before the court, the failure to do so must reflect a conscious decision on the part of Paola which leads the obvious inference that Paola, properly advised, made a forensic decision not to seek such an order.
Secondly, Walter submits that Paola seeks a favourable exercise of the court’s discretion under s 58(2) of the Act in circumstances where she has not given full disclosure. Walter submits that while this is not a basis upon which a provision application might be dismissed, it is a matter relevant to the exercise of the discretion, applying analogous reasoning from Blendell v Blendell [2020] NSWCA 154, Meagher JA at [32]–[33], which dealt with the relevance of a failure to disclose in the exercise of discretion on determining whether a plaintiff should have leave to reopen their case.
Walter says that Paola was not forthcoming about the production of documents pursuant to a notice to produce issued by Walter, in circumstances where Paola did not produce documents even though she understood her accountant could make them available, and she did not acknowledge being aware of management accounts despite stating earlier that she could produce them (T67–68). Walter says that Paola’s affidavits were silent about the source of funds used to defray her “living expenses” and did not disclose that her living expenses were not confined to the necessities of life as they included gambling (T76). Walter also says that Paola’s affidavit evidence was misleading because while she disclosed the indebtedness of the Cunningham Family Trust to her, she did not disclose that indebtedness was the source of ongoing payments made through the bank account owned by Toppi Martin Place and therefore her affidavit evidence that she had no wages income other than through Toppi Martin Place was materially incomplete. Walter also says that Paola made a forensic decision not to obtain a valuation for Toppi Bar & Restaurant, preventing the court from determining a value of what was then her principal asset and therefore her financial resources.
In my view, applying the principles summarised in Thomas v Pickering, Paola has shown sufficient cause for me to make order under s 58(2) of the Act extending the time for her to make the application for provision to 22 November 2022, when the amended statement of claim was filed, for the following reasons:
The length of the delay in filing the application was minor, being 19 days.
Paola has given a plausible explanation for the delay in filing the application, being the receipt of advice from her solicitor, Mr Beazley, on which she acted in deciding not to file the application (T30) and then receiving subsequent advice from Mr Pesman SC on which she acted in deciding to bring the claim (T41). I accept Paola’s evidence on these matters, particularly as her evidence during cross-examination suggests a limited understanding or recollection of how her pleadings evolved in these proceedings (T29–30). I do not consider that Paola’s decisions amount to a mere change of mind in the sense described in Henry, given that her decision making was driven by the professional advice she had received which she “just took” (T30).
I do not consider that there can be any suggestion of deliberate delay on Paola’s part. The advice Paola received from each of her legal advisers was undoubtedly privileged and she did not waive her privilege when she was asked questions about it during cross-examination. I think that the privileged nature of the advice probably explains why she has chosen not to place it before the court. I do not think that it is appropriate in those circumstances to draw any inference that Paola made a forensic decision not to seek a provision order.
The bona fides of Paola’s decision-making is underlined by the fact that her first decision not to bring the claim for provision on the advice of Mr Beazley was influenced by her desire for “Walter to receive a significant amount of money from [Giovanna’s] estate” (T30).
Walter does not suggest that there is any prejudice to him or Giovanna’s estate arising from Paola’s late application. These proceedings were commenced promptly in July 2022 as a challenge to the 2020 Will (with competing summons for probate and letters of administration, as well as caveats filed on behalf of both Paola and Walter between November 2021, being the same month Giovanna died, and May 2022). It could hardly be said, therefore, that Walter was ever allowed to be lulled into a false sense of security or that such a significant period of time had elapsed that led Walter to assuming there would be no challenge to the 2020 Will.
As to the submissions that Paola has failed to make full disclosure of various matters, I consider that this is a factor which more appropriately goes to the merits of Paola’s application for provision rather than her application for an extension of time.
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—
(a) the person in whose favour the order is to be made is an eligible person [defined in s 57(1)(c) as including a child of the deceased person], and
…
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
…
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) if the applicant is cohabiting with another person—the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
[78] Before an order for provision can be made in favour of a child of the deceased (who is an “eligible person” within the meaning of s 59 of the Succession Act), the Court must be satisfied that “adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person”: Succession Act, s 59(1)(c).
[79] Satisfaction in this regard is “jurisdictional” insofar as it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): see, for example, as to the use of the description “jurisdictional”, White v Barron (1980) 144 CLR 431 at 456; [1980] HCA 14; Singer at 208-210; Hampson v Hampson [2010] NSWCA 359; (2010) 5 ASTLR 116 at [69]-[72]. Care must, however, be taken when answering this jurisdictional question not to confine the relevant consideration to an applicant’s financial or material needs; the language of “proper maintenance, education or advancement” involves more than simply a question of financial needs: see Sgro v Thompson [2017] NSWCA 326 at [68]-[74] (Sgro).
[80] Once the level of satisfaction referred to in [78] has been reached, the Court has a broad discretion, “having regard to the facts known to the Court at the time the order is made” (emphasis added), to make such order for provision out of the estate as ought to be made “for the maintenance, education or advancement in life of the eligible person”: Succession Act, s 59(2).
[81] In considering both whether to make a family provision order and the nature of any such order if the threshold required by s 59(1)(c) is satisfied, the Court is entitled to consider the broad range of matters specified in s 60(2) of the Succession Act. The breadth of the matters that may be considered under s 60(2) does not, however, authorise the making of an order which is for a purpose other than “the maintenance, education or advancement in life of the eligible person”. Nor does it relieve the Court of the need to make the order “having regard to the facts known to the Court at the time the order is made” (emphasis added).
[20] The following useful summary of the basal provisions of the Act concerning this type of application was recently provided by Basten AJ in Bohen v Mitchelmore [2024] NSWSC 171 (Bohen v Mitchelmore) at [18]-[20]:
[18] The statutory scheme for family provision orders is found in Pt 3.2 of the Succession Act. It commences by identifying classes of “eligible persons” who may make such an application: s 57. The classes include a child of the deceased person…
[19] The Court may make such an order if satisfied that, at the time the Court is considering the application, “adequate provision for the proper maintenance, education or advancement in life of the person … has not been made by the will of the deceased person”: s 59(1)(c). If so satisfied, the Court is empowered to make “such order” as it thinks “ought to be made for the maintenance, education or advancement in life of the eligible person”: s 59(2).
[20] In determining whether an order should be made and, if so, in what form, the court is empowered to have regard to matters set out in s 60(2) of the Succession Act. Those matters provide guidance, but are not exhaustively stated. Importantly, they inform the content of what may be considered “adequate” provision and “proper” maintenance, education or advancement in life. These matters require the Court to consider the family relationship between the applicant and the deceased person, “including the nature and duration of the relationship” (par (a)); “the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant … or to any beneficiary of the … estate” (par (b)); “the nature and extent of the … estate” (par (c)); “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant” and of any beneficiary of the estate (par (d)); “the age of the applicant” (par (g)); “evidence of the testamentary intentions of the deceased person” (par (j)); “the character and conduct of the applicant before and after the date of the death of the deceased person” (par (m)); and “any other matter the Court considers relevant” (par (p)).
[21] It is well established that s 59 requires a two-step process. First, the Court considers whether adequate provision for the proper maintenance, education or advancement in life of the applicant for the order has not been made by the Will, and if the Court is satisfied that it has not been made, the Court may make such order for provision out of the deceased’s estate as the Court thinks ought to be made for the maintenance, education or advancement in life of the applicant having regard to the facts known to the Court at the time the order is made (the emphasised words appear in s 59(2)). Those words focus attention on the necessity for the Court to have updated information, which in turn casts upon an applicant a duty to make full and frank disclosure of her or his financial circumstances as at the date of the hearing: DJ Singh v DH Singh and Others [2018] NSWCA 30 at [284]-[291].
[22] The requirement for the Court to have regard to the facts known to it at the time of the order brings with it the clear implication that the relevant facts will be placed before the Court. Added to this, an applicant’s financial circumstances are matters specifically within their own knowledge. In Srekovic v Srekovic [2018] NSWSC 1597, Hallen J (as His Honour then was) had occasion to remark, with reference to Practice Note SC Eq 7 (as it then stood), that:
[228] I have stressed, on numerous occasions, the need of an applicant for provision to disclose her or his financial circumstances at or about the time of the hearing. Indeed, Paragraph 17 of Practice Note SC Eq. 7 requires updating affidavits to be filed and served, and, invariably, when a matter is set down for hearing, a direction is made for such affidavits to be served a few days prior to the final directions hearing. Regrettably, more often than not, as in this case, the direction is not complied with.
…
[24] If it becomes clear that there are pertinent facts which have not been placed before the Court, it cannot make the evaluative judgment which s 59(1)(c) requires it to make: Cringle v Cringle [2018] NSWSC 1558 at [35]-[36]; Stone v Stone [2019] NSWSC 233.
[25] The following canons emerge from the series of decisions cited immediately below:
(1) an applicant has the onus of establishing that adequate provision for their proper maintenance, education or advancement in life was not made by the will;
(2) the terms “proper” and “adequate” do not invoke any precise or immutable standard. The standard will depend on the circumstances of the case;
(3) the jurisdiction is not exclusively needs-based. There are other relevant considerations, as the list of relevant factors in s 60 makes clear;
(4) the notion of advancement in life is concerned or envisages, not merely maintaining a standard or status of an eligible person, but in an appropriate case improving and enhancing it;
(5) the Act does not create legal rights of inheritance;
(6) fairness and equality are not touchstones for relief, and it is not appropriate for the Court to endeavour to achieve an overall fair division of the deceased’s estate; and
(7) the discretion to make an order is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the deceased’s freedom of testation.
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees (1979) 143 CLR 134 at 149; Gorton v Parks (1989) 17 NSWLR 1; Singer v Berghouse (1994) 181 CLR 201; McKenzie v Topp [2004] VSC 90; Vigolo v Bostin (2005) 221 CLR 191 at [10]; Sung v Malaxos [2015] NSWSC 186 at [5]; Steinmetz v Shannon (2019) 99 NSWLR 687; Barbuto v Barbuto [2019] NSWSC 1023 at [308] and following; Bohen v Mitchelmore at [21] and following.
Determining the adequacy of provision involves an evaluative judgment on a question of objective fact, based on all the circumstances: Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, Gibbs J (with whom Mason and Aickin JJ agreed) at 147–8; White v Barron (1980) 144 CLR 431; [1980] HCA 14, Barwick CJ at 434–5, Mason J at 443; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, Mason CJ, Deane and McHugh JJ at 210–1. It requires a “multifaceted evaluative approach” that takes into account all the factual circumstances relevant to the application, including a claimant’s needs (accepting that those needs are not determinative of the adequacy of any provision made), as well the size of the estate and other’s claims on it: Angius v Angius [2025] NSWCA 113, Michelmore JA (with whom Bell CJ and Ball JA agreed) at [25] quoting with approval the summary of Henry J in Lalic v Lalic [2022] NSWSC 31, at [51]–[53].
Where a claim is brought by an adult child of the deceased, the following principles (lifted from Smith v Johnson [2015] NSWCA 297, Sackville AJA (with whom Macfarlan and Ward JJA agreed) at [62], reproducing Camernik v Reholc [2012] NSWSC 1537, Hallen J at [159]) offer guidance:
A child does not cease to be a natural recipient of parental affection or support upon leaving home or merely because the bonds of childhood are relaxed.
Ordinarily (but without fixing this as a universal standard), there exists a community expectation that parents will raise and educate their children to the best of their ability while they remain children. Where feasible and where financial circumstances allow, this will probably mean securing them with a tertiary education and providing them with a start in life such as a deposit on a home. While this does not extend, in ordinary circumstances, to providing one’s children with an unencumbered property or the finance to acquire an unencumbered house, in a particular case where assets permit and the relationship between the parties is such as to justify it, such an obligation may be taken to exist.
In general, the community does not expect a parent to look after their child for the duration of the child’s life and into retirement, particularly where someone else (such as a spouse) has or may be taken to have assumed the primary obligation to do so. In respect of an adult child who remains a dependent of a parent, the community will usually expect the parent to make provision to fulfil that ongoing dependency after death.
Where a child, including an adult child, encounters hard times, or has been unable to accumulate superannuation or otherwise make provision for their retirement, and where there are assets available, a parent may be expected to provide a buffer against contingencies and/or something to assist their child in their retirement if otherwise they would be left destitute.
One such material circumstance in an application for family provision is the applicant’s financial position.
As stated above, the financial resources (including earning capacity) and financial needs, both present and future, of the applicant is one matter which may be considered by the court in determining whether an order for provision ought to be made, as well as the nature of any such order: s 60(2)(d) of the Act.
Assuming eligibility, the court must first be satisfied that adequate provision for the proper maintenance, education or advancement in life of an applicant has not been made “at the time the court is considering the application”: s 59(1)(c) of the Act. If so satisfied, the court may make an order for provision as the court thinks ought to be made, “having regard to the facts known to the court at the time the order is made”: s 59(2) of the Act.
The wording of the statute focuses attention on the necessity for the court to have “updated information, which in turn casts upon an applicant a duty to make full and frank disclosure of her or his financial circumstances as at the date of the hearing”: Baker, Hammerschlag CJ in Eq at [21] citing DJ Singh v DH Singh [2018] NSWCA 30, Gleeson JA (with whom Leeming and White JJA agreed) at [284]–[291]. As Hammerschlag CJ in Eq observed in Baker, at [22], the applicant’s financial circumstances are within their own knowledge and the relevant facts must be placed before the court so that the court can have regard to them at the time of the order.
An applicant for provision under the Act must place before the court an accurate statement of their financial position as at the date of the hearing. Without this information, the court is in no position to assess whether the provision made for the applicant is otherwise than adequate. Campbell J said in Collings at [67] that:
… before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff’s financial situation.
If the fractured relationship between the plaintiff and the deceased be characterised (or not) as an “estrangement”, so be it. The factual matrix is more important than any single label attached to the relationship.
For the purpose of determining whether to make an order for provision, and the nature of any such order, matters that may be considered by the court in the exercise of its discretion under s 59(2) include the nature and duration of the applicant’s relationship with the deceased, as well as any other matter the court considers relevant in existence at the time of the deceased’s death: s 60(2)(a) and (p) of the Act.
Evidence of estrangement plainly speaks to the nature and duration of the relationship between an applicant and the deceased person. If the estrangement persisted at the time of the deceased person’s death, that would ordinarily also be a relevant matter for the purposes of s 60(2)(p) of the Act.
The underlying circumstances of the estrangement, as distinct from the state of being estranged itself, may also fall within the consideration of the character and conduct of the applicant before the date of the death of the deceased person: s 60(2)(m) of the Act. In this regard, I am guided by the following remarks of Lindsay J in Alexiou, at [90]:
The Succession Act contains no provision in the same terms as section 3(2) of the Testator’s Family, Maintenance and Guardianship of Infants Act 1916 NSW, which empowered the Court to “refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order”. Although section 60(2)(m) invites the Court to consider “the character and conduct” of a claimant the Succession Act stops short of a character assessment in terms of a “disentitlement” to relief, requiring instead a broader, more holistic assessment of relationships and the particular circumstances of the case at hand.
Section 59 of the Act undoubtedly interferes with the freedom of testamentary disposition, and if the provision made for an eligible applicant is less than adequate for their proper maintenance and advancement in life, provision must be made: Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, White JA at [52], and Brereton JA at [96].
Relevant principles in relation to estrangement in provision claims have been “comprehensively considered”: Portis v Green [2017] NSWSC 1489, Kunc J at [55], referring to the summary of Hallen J in Underwood, at [230]–[244].
Relevantly, in Underwood, Hallen J at [231] distilled the following principles which provide some useful guidance in this context:
(a) The word “estrangement” does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
(b) The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:
“… the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.”
(c) There is no rule that, irrespective of a Plaintiff’s need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to “ample” provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
(d) The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one “who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.
(e) As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):
“If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator’s will.”
(f) Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court’s discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].
(g) The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].
(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].
The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.
By way of summary, while the nature of the estrangement and the underlying reason for it are relevant to an application for provision, estrangement of itself is not determinative of the application. It does not, without more, disentitle the applicant from provision, nor does it automatically justify their exclusion from the bounty of the estate. There is no presumptive right of testamentary entitlement for offspring in this jurisdiction, nor is there any presumptive right to disinherit in cases of estrangement: Underwood v Gaudron [2015] NSWCA 269, Basten JA (with whom Macfarlan and Ward JJA agreed) at [73].
If any provision is to be made, estrangement between the applicant and the deceased may operate to reduce the applicant’s claim on the deceased’s estate or “restrain amplitude in the provision to be made”: Underwood, Hallen J at [231(g)]; Pulitano v Pulitano [2019] NSWSC 1688, Henry J at [250], citing Keep v Bourke [2012] NSWCA 64, Macfarlan JA at [49].
However, estrangement between an applicant and the deceased person is but one factor to be taken into consideration and, where the negative consequences of the estrangement are kept within reasonable bounds, it is not to be “given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience”: Andrew, Basten JA at [40].
As a matter of ordinary expression, the state of being “estranged” connotes a condition or situation which has persisted at least for a period of some length: Oxford English Dictionary, online 2nd ed, May 2025. There has been suggestion among some of the authorities cited above of some differentiation between instances of “temporary” or “short-term” estrangements, such as where an otherwise long and loving relationship between a parent and child has been “ruptured shortly prior to death” on one hand, with instances of “longstanding” or “long-term” estrangement on the other: see, for example, Georgopoulos v Tsiokanis [2022] NSWSC 563, Hallen J at [157]–[158]; Underwood, Hallen J at [73]. There is no clear dividing line between these vague descriptors – which are in any event relative terms – and in circumstances where both situations would likely be relevant to the nature or duration the applicant’s relationship with the deceased, and because each case is confined to its own facts, the utility of any label or sub-category of estrangement relative to its length appears limited.
In a similar vein, the use of the term “estrangement” generally in family provision cases is not without controversy. In that regard, in Rada v Smith [2024] NSWSC 273, Kunc J at [26]–[28] said:
[26] However, I do not wish to leave this topic without making a more general observation. In my view, “estrangement” should be banished from the family provision lexicon as some kind of freestanding, established consideration. It has come to be treated as though it appears as one of the matters specified in s 60(2) of the Act.
[27] I respectfully add my voice to other judicial expressions of caution about the utility of the term. It assumes what it seeks to prove. It is a word already loaded with moral obloquy which risks diverting the Court and the parties into an ultimately fruitless attempt to assign blame for conduct which took place long ago, often in emotional circumstances, and in a context which is impossible to recreate years later in a way that is both fair and proportionate to its ultimate importance to the outcome of a given case. Obviously one of the fundamental difficulties with that task is the necessary unavailability of one of the protagonists to give evidence.
[28] “Estrangement” should be replaced with the neutral expression “lack of contact”. As such, it falls within at least sub-sections 60(2)(m) and (p) of the Act. So understood, it invites a factually more objective inquiry in the sense of ascertaining what contact there was or was not. To the extent that the reasons for the lack of contact need to be explored, the experience of the Court is that, generally, only the most egregious conduct on the part of either the deceased or the applicant will have any impact on the multifactorial discretionary exercise in which the Court is engaged. And only in the most extreme cases will it be decisive of the outcome. In the vast majority of cases it will have no impact because the Court understands that disagreements, moments of irritation, and words said in haste and repented at leisure are an ordinary incident of family life.
In summary, Paola submits:
As the daughter of Giovanna, she is an “eligible person” under s 57(1)(c) of the Act.
The 2020 Will effectively made no provision for Paola.
Paola and Giovanna enjoyed a long and close relationship until the WFM proceedings.
Although Paola was financially successful at earlier times in her life, circumstances (largely beyond her control) have left Paola with essentially no assets of any real value, minimal amounts in savings and larger debts. Paola’s expenses are in excess of her income. Paola has very limited ability to ameliorate her financial position given her age.
Paola seeks relief from the contribution said to be owing to Giovanna’s estate by Paola as co-guarantor of the WFM Loan and her liability to the estate for the unquantified costs orders that have been made against her in favour of Giovanna’s estate in these proceedings.
In addition to those releases, Paola also seeks provision in the form of a payment to her of $750,000.
In summary, Walter submits:
There is good reason to conclude that Giovanna soundly exercised her right of testamentary disposition having regard to Walter’s evident needs, the modest size of the estate and the financial assistance she had provided to Paola over many years.
Giovanna was entitled to have regard to Paola’s decision to terminate contact with her, which became more consequential with Giovanna’s declining health.
Paola has received significant benefits from Giovanna.
Paola has caused prejudice to Giovanna’s estate, by exposing it to the claims in the WFM proceedings and the costs of defending the discontinued probate claim in these proceedings.
What is left of Giovanna’s estate should pass to Walter having regard to his serious ongoing needs and the care that he provided to Giovanna.
Paola failed to provide full disclosure of her financial position, which means that the court cannot undertake the evaluative assessment required under s 60 of the Act.
It is uncontroversial that, as a child of Giovanna, Paola is an “eligible person” within the meaning of s 57(1)(c) of the Act and, by virtue of ss 57(1) and 59(1)(a) of the Act, has standing to apply for a family provision order.
The distinct but related questions raised by ss 59(1)(c) and 59(2) of the Act require me to determine whether Paola has been left without adequate provision for her proper maintenance, education or advancement in life and, if so, what provision “ought to be made” for her. In addressing these issues, the court may have regard to the matters set out in s 60(2) of the Act, being matters which “may have a resonance in these proceedings, although not in a determinative way”: Alexiou, Lindsay J at [85].
The starting point of this analysis is, of course, that under the 2020 Will Giovanna only left Paola with shares in Cara Nonna (formerly, G & P Toppi) and Hospitality Placements, both of which subsequently proved to be worthless. It was agreed between the parties for the purposes of these proceedings that I should attribute no value to those shares. The 2020 Will, therefore, made no provision for the proper maintenance, education or advancement in life of Paola.
I will now turn to consideration each of the relevant factors contained in s 60(2) of the Act, to the extent that they are applicable.
As I have found above, there was a longstanding and fluctuating relationship between Giovanna and Paola, in which arguments and difficulties were replaced with reconciliation and support for each other on numerous occasions throughout Giovanna’s life. These crests and troughs were closely tied to the fortunes of the businesses in which they were involved.
My regard to the totality of the relationship between Paola and Giovanna is, in many ways, satisfied in an overall and fairly broad-brush way. Their relationship was tumultuous, and at times tempestuous, but for much of Giovanna’s life the overwhelming inference is that their relationship could be characterised as one driven by the love and affection which typically attends that of a mother and daughter. That said, consideration of the details of their relationship has been necessary in this case as the sad fact is that the pair had a complete relationship breakdown some two years before Giovanna’s death.
Paola provided financial assistance to Giovanna for many years in the form of weekly wages, although mostly that assistance came from restaurant businesses in which Giovanna was financially and practically involved.
I accept that Paola loved her mother. They were, at times, closer than many adult children experience with a parent. I also accept that before their relationship broke down, Paola contacted Giovanna regularly. There can be no doubt that the events surrounding the WFM Loan led to the irretrievable breakdown of their relationship in about August 2019, with a cessation of all contact in 2020. Paola was very angry at Giovanna in relation to the WFM Loan and, more specifically, the circumstances in which Giovanna came to dispute her liability under it. Giovanna expressed her own anger towards Paola at various times, as seen in the 2017 Statement accompanying the 2017 Will, and in the 2020 Will.
The depths of Paola’s estrangement from Giovanna in the final years of Giovanna’s life are starkly captured in Paola’s email of 18 June 2021 in which she expressed the desire for Giovanna to die so that she could “frustrate the probate”. Her failure to visit Giovanna in the hospital and speak to her in her final days confirms the full extent of Paola’s adverse feelings for her mother at that time.
But I do not find that either Paola or Giovanna was solely at fault for the disintegration of their relationship.
I must also take particular account that the relationship fracture was for a relatively short period of Giovanna’s life. Unfortunately, it encompassed the end of Giovanna’s life as well, which gives a strong emotional component to it.
While their estrangement is a relevant factual matter for my consideration, I have approached the matter with caution given the surrounding circumstances of their estrangement which can fairly be described as exceptional, as well as the nature and duration of their relationship prior to it.
Applying the principles outlined in Camernik, Giovanna did not owe any continuing obligations or responsibilities to Paola as her adult child who has been married to Neil for more than 35 years. Prior to Giovanna’s death, it would appear that Paola and Neil were able to provide for themselves to meet all of their living expenses. Subsequent to Giovanna’s death, the circumstances of Paola and Neil have declined significantly though.
Walter, on the other hand, remained a dependent of Giovanna for the whole of his life. As Camernik reminds me, the community will usually expect Giovanna as the parent to make provision to fulfil that ongoing dependency after her death.
The net value of Giovanna’s estate as at 13 February 2025 was $2,376,155.61, made up as follows:
Assets totalling $2,657,691.17 comprising:
(a) Giovanna’s WBC account: $1,510,264.27 plus interest. (b) Loan owing by Mr Bicher (contingent as Mr Bicher has indicated that he is unable to pay): $159,800. (c) Contribution owing by Paola as co-guarantor with Giovanna of the WFM Loan, which is said by Walter to be in the order of $967,626.90. (d) Household contents, furniture and personal effects: $20,000.
(a) Car loan: $40,524.16. (b) Amounts owing to LRS (including an estimate for these proceedings): $45,843.55. (c) Hospital and medical expenses: $24,255.65. (d) Telstra: $933.20. (e) AGL: $286.46. (f) Taxation: $169,692.54.
No claim for a notional estate was made in the proceedings.
Given that Paola’s liabilities are well in excess of her assets, in my assessment it is very unlikely that there will be any recovery of the $967,626.90 for which Walter contends Paola is liable in equity to Giovanna’s estate as co-guarantor of the WFM Loan.
Paola’s evidence did not make the task of understanding her financial position particularly easy. A real difficulty was her failure to grasp the difference between her personal financial position and the financial position of entities with which she is associated. Mr Beazley (who appeared for Paola) had the same difficulty.
In summary, I consider that Paola’s liabilities well outweigh her assets, and her income is exceeded by her expenses. Paola is clearly in a poor financial state in a manner that Giovanna did not anticipate prior to her death. Paola clearly has financial needs and does not have any superannuation. Paola does, however, have the capacity to work as a chef and a business proprietor well into her seventies.
Walter has very significant needs. He presently has no earning capacity by reason of his ill-health and poor employment history. Throughout Giovanna’s life, Walter was dependent on her to pay for his living expenses. He is now completely reliant on welfare payments and a loan from Caterina to pay his living expenses. He needs medical treatment to address his health issues and his gambling addiction but cannot afford to undertake it.
Paola is in good health for her age apart from dental work which Paola asserts she requires.
As indicated above, Walter is afflicted with mental and physical health issues which require treatment he cannot afford.
In a generalised sense, Paola has assisted in the acquisition of Giovanna’s estate by being involved in business together with her at various times since Machiavelli. Paola also arranged, through businesses such as Bar Machiavelli and Bar M, for Giovanna to be paid substantial wages.
But Paola has also been a source of the significant depletion of Giovanna’s estate in two ways.
First, through failing to make any contribution as co-guarantor of the WFM Loan, which caused Giovanna to meet the whole of that judgment debt, plus costs and unpaid rent totalling $1,935,254.44 from the sale proceeds of the Macleay Street property following the judgment in the WFM proceedings. As noted previously, while this amount includes approximately $399,322.24 in payment of WFM’s costs of the WFM proceedings, Paola did not make any submissions to the effect that her liability in equity as co-guarantor would not be equal to that of Giovanna.
Secondly, by causing Giovanna’s estate to incur wasted legal costs and disbursements leading up to the vacation of the trial in these proceedings before Pike J, in circumstances where Walter claims the wasted costs are likely to exceed $370,000.
As mentioned earlier, on 29 October 2024, Pike J ordered Paola to pay those costs, with liberty reserved for Walter to apply at the conclusion of these proceedings to seek the ordered costs on the indemnity basis: Toppi v Toppi (No 2) [2024] NSWSC 1363.
These extant costs orders can be distinguished from the cost consequences of the present proceedings, with the latter yet to be determined. I have had no regard to the potential costs consequences of these proceedings in my determination of Paola’s claim for provision: Chalik v Chalik [2025] NSWCA 136, Bell CJ, Payne and Free JJA at [123] and [126]–[127].
Giovanna made significant and ample financial contributions to Paola during her lifetime. Giovanna regularly provided either premises, guarantees, or entered into loans or leases to support the businesses that Paola undertook, as demonstrated in relation to 500 George Street, Café 29, Polleria, Sciue Sciue, Bar Machiavelli and Bar M. Giovanna put herself at risk, to her own financial detriment, for the benefit of Paola on numerous occasions, one of which was the guarantee for the WFM Loan which ultimately caused their relationship to breakdown.
Giovanna also made provision for Paola from her estate of the shares in Cara Nonna and Hospitality Placements, but it is agreed that these shares have no value.
Giovanna made numerous wills which varied in the provision made for Paola. Paola went from sharing equally in Giovanna’s estate with Walter (in the 2013 Will, the 2018 Will and the January 2019 Will) to only being left Giovanna’s shares in various companies being Cara Nonna (formerly, G & P Toppi), Sciue Sciue Pty Ltd, Tridevco and Hospitality Placements (in the 2017 Will, the August 2019 Will and the 2020 Will) and the release of Paola from liability as co-guarantor of the WFM Loan (the August 2019 Will).
The 2017 Statement accompanying the 2017 Will demonstrates that Giovanna regarded Paola as intelligent, financially savvy and capable of establishing a strong financial future, while she considered Walter to have considerable needs that she had a strong moral obligation to meet. The 2017 Statement also serves to highlight the disagreements between Giovanna and Paola and the distress caused to Giovanna by them from time to time.
Any provision made for Paola will necessarily come at the expense of Walter and will operate as a departure from the deliberate testamentary intention of Giovanna: Broadus, Lindsay J at [2], citing Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, White J at [127] as approved in Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl and Payne JJA agreed) at [83]–[87].
During cross examination, Paola (T30–31 and T41–42):
accepted that Walter should receive at least half of the estate (T30);
accepted that Giovanna wanted to look after Walter, including by providing him with money to buy a property (T30);
said that Giovanna was concerned about Walter’s “ability to waste money” and accepted that Giovanna wanted to protect Walter against that possibility (T31);
said that she had “hundreds” of conversations with Giovanna about Giovanna’s wishes, including conversations in which Giovanna had said she “wanted to wipe him out of the will” – which Paola advised against – and lots of conversations in which Giovanna said to Paola that she wanted Walter to be looked after (T31); and
accepted that Walter had a need for accommodation and that Walter’s employment history was very poor (T41–42).
I have also had regard to the enduring care which Walter provided to Giovanna over many years prior to her death.
In my opinion, adequate provision for the proper maintenance, education or advancement in life of Paola as the adult child of Giovanna was not made by the 2020 Will. The 2020 Will only left Paola with shares in two companies that are now accepted to be valueless. The 2020 Will was made amid a serious breakdown in the relationship between Paola and Giovanna, which was caused by the circumstances surrounding the WFM Loan and the WFM proceedings. That breakdown undoubtedly had a significant influence on Giovanna’s testamentary intentions at that time. Giovanna did not survive to see the outcome of those proceedings. Absent the breakdown in their relationship, Giovanna had previously provided Paola with a release of liability for the guarantee for the WFM Loan (in the August 2019 Will) and, prior to that, with 50% of the estate to share with Walter (in the 2013 Will, the 2018 Will and the January 2019 Will).
Paola is now in a significantly diminished financial position where she has a lack of assets to meet her liabilities and insufficient income to meet her expenses. She has no superannuation and little prospect of recovering any funds she invested into Toppi Martin Place. This is a long way below what Giovanna would ever have envisaged for her daughter, whether at the time of 2020 Will or upon her death in November 2021. It is certainly not in keeping with Giovanna’s assessment of Paola’s circumstances and prospects in the 2017 Statement accompanying the 2017 Will.
I also consider that Walter’s needs are considerably greater than Paola’s needs, given that he has no assets, no present ability to earn any income and is completely reliant on welfare and loans funds from Caterina to meet his living expenses. Paola, on the other hand, accepts that she is still able to work as a chef to earn income “well into her 70s”.
Walter also provided significant daily care to Giovanna, when Paola did not. Walter’s caring burden increased after Giovanna’s mobility declined when she commenced haemodialysis treatment in 2015 and became more significant when she was required to use a wheelchair in the three years prior to her death. During this latter period, Paola ceased to have any contact with Giovanna. Any award of provision must balance these factors.
I am conscious that Paola has had significant financial provision made for her from Giovanna during her life, including by way of the guarantee and posthumous repayment of the WFM Loan. But I must balance this by taking into account that, for many years, Paola ensured that Giovanna was provided with weekly sums of money from their restaurant businesses to meet her living expenses, much of which was for the benefit of Walter because he was living rent free with Giovanna throughout that time.
The net value of Giovanna’s estate is $2,376,155.61, principally comprising Giovanna’s WBC account ($1,510,264.27 plus interest) and the contribution said to be owing by Paola as co-guarantor of the WFM Loan ($967,626.90). In my view, the contribution owing by Paola is likely to be irrecoverable by Giovanna’s estate in light of Paola’s dire financial position. It is also an amount which I consider Giovanna would have released had she ever have conceived of Paola’s dire financial position at the present time.
The orders I propose to make are:
The parties are to email the Associate to McGrath J a set of agreed short minutes of order to give effect to this judgment by 4pm on 17 July 2025, failing which they are to provide competing submissions of not more than five pages (12 font, 1.5 spacing) with proposed short minutes of order and any material on which they rely by 24 July 2025.
The proceedings are listed for directions on a convenient date to be determined in respect of any application the defendant wishes to make for indemnity costs and/or a special costs order.
**********
Toppi
Toppi
(1969) 121 CLR 342
(2012) 81 NSWLR 656
(2009) 239 CLR 175
(2014) 87 NSWLR 646
(1999) 161 ALR 599
(2021) 388 ALR 128
(2003) 214 CLR 118
(1980) 144 CLR 490
(2006) 66 NSWLR 186
(1979) 143 CLR 134
(2014) 87 NSWLR 159
(2015) 254 CLR 459
(1981) 180 CLR 370
(1962) 107 CLR 9
(1994) 181 CLR 201
(2013) 85 NSWLR 253
(1992) 176 CLR 256
(2012) 46 VR 1
(2019) 99 NSWLR 687
(1992) 28 NSWLR 471
(1995) 49 NSWLR 315
(1980) 144 CLR 431
(1989) 17 NSWLR 1
(2005) 221 CLR 191
(1987) 8 NSWLR 573
Judicial notice has been taken of scientific research which casts doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].
There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, by Ipp JA (with whom Mason P and Tobias JA agreed) at [26]:
On 14 November 2022, Paola filed a defence to the amended statement of cross-claim.
On 22 November 2022, Paola filed a further amended statement of claim in which the relief sought included:
In making these orders, Pike J also noted that Paola’s conduct of the proceedings – effectively having been run on the basis that the probate case needed to be determined before advancing her case for provision – had unnecessarily prolonged the litigation and caused stress and anxiety to Walter because of the proceedings themselves and the consequent delay. This view is consistent with my own impression of the matter arising from Paola’s highly inefficient conduct of the proceedings before me. The result is that Giovanna’s estate – the very thing the parties are fighting over – has been significantly diminished by legal costs.
On 29 October 2024, Pike J ordered Paola to pay Walter’s costs of the proceedings other than to the extent that they relate solely to her claim for provision, with liberty reserved for Walter to apply at the conclusion of these proceedings to seek the ordered costs on the indemnity basis: T**oppi v Toppi (No 2) [2024] NSWSC 1363.
Unfortunately, the potential sale of Toppi Bar & Restaurant was a matter that was neither resolved nor clarified prior the hearing before me in February 2025. The uncertainty with regard to the future of Toppi Bar & Restaurant reared its head again some six days after I reserved my judgment in this matter. This led to Paola’s application to reopen her case, a matter I have dealt with in more detail below.
However, there is conflicting evidence about the shareholdings in Machiavelli Ristorante, including claims by Paola (which are disputed by Caterina) that they were held on trust at various times.
The 1995 Annual Return filed in respect of Machiavelli Ristorante on or around 29 January 1996, and signed by Caterina, indicates that of the ten shares on issue of Machiavelli at that time, Caterina held nine shares, Walter held one share and that neither Giovanna nor Paola held any shares. The 1995 Annual Return is consistent with Paola’s evidence in that it suggests that, of the ten shares on issue, Paola once held eight shares (that entry being crossed through), Walter held one share and there is a hand annotation to Caterina’s shareholdings which appears to be the result of changing a “1” to a “9”, being the sum of the eight shares once held by Paola and the single share initially held by Caterina. This would suggest that Paola’s eight shares in Machiavelli Ristorante were transferred to Caterina.
Walter says that Giovanna had expressed an intention that she and her three children would each hold or receive a 25% share in Machiavelli but that this arrangement was sometime later abandoned by Giovanna.
Later written statements by Giovanna (which are addressed below) strongly suggest Giovanna believed that, amongst other things, at least some of the shares in Machiavelli Ristorante were being held by Caterina on trust for Giovanna.
What is clear is that sometime in 1995, Paola left Machiavelli and commenced working with Neil full time in his shops. Caterina says that this came about after months of heated arguments that Paola had with both Giovanna and Caterina, including over the way that Machiavelli was being run and Paola’s desire to bring other people into the Machiavelli business. Caterina does not recall ever resuming a meaningful business or personal relationship with Paola after her departure from Machiavelli in 1995.
Walter says that he was also involved in an argument between Paola, Giovanna and Caterina, though he gave conflicting evidence as to the timing of this argument. Walter says this argument led to Paola leaving Machiavelli, at the conclusion of which Paola threw her keys to the Clarence Street premises to Caterina and said words to the effect of:
By way of example, the 2018 Will includes the following:
The unit holders in the Bar Machiavelli Unit Trust were:
Bicher Truco, a company of which Mr Bicher was the sole director and shareholder, and which held 30 units;
Pelltruco, a company of which Mr Pellarini was the sole director and shareholder, and which held 30 units; and
G & P Toppi (a company incorporated in February 2016 with Paola and Giovanna as its shareholders and directors and which, as mentioned above, changed its name to Cara Nonna in January 2019), which held 60 units.
On 18 December 2015, Bar Machiavelli Pty Ltd executed a lease in respect of the Neild Avenue premises for a term of six years commencing on 1 December 2015 with a starting annual rent of $235,000.
Bar Machiavelli seated up to 160 patrons across a dimly lit dining room and cocktail bar, while rotating projections of Italian-inspired cinematic imagery flickered across the exposed-brick walls in the cavernous, warehouse-proportioned space. This transformation was paid for mostly by funds advanced to Bar Machiavelli Pty Ltd by Mr Bicher and Mr Pellarini via Bicher Truco and Pelltruco, respectively. For convenience, I will refer to Mr Bicher, Mr Pellarini, Bicher Truco and Pelltruco collectively as the Bicher p****arties.
Between December 2015 and March 2016, the Bicher parties made loans totalling approximately $800,000 to Bar Machiavelli Pty Ltd in its capacity as trustee to fund the fit-out and provide working capital for Bar Machiavelli Pty Ltd. Paola says the total cost of the renovation was around $1,300,000 and the balance was funded by her personally. Caterina disputes this and says conversations she had with Giovanna, Mr Bicher and Mr Pellarini around the time Bar Machiavelli opened made plain the latter were funding the “entire restaurant”. Nothing turns on this.
In April 2016, Bar Machiavelli officially commenced trade with Paola having control of the day-to-day conduct and restaurant operations.
The menu was designed by both Giovanna and Paola, and Paola took on the role of head chef, leaving Sciue Sciue to operate without her involvement in the evenings until its eventual closure.
Sometime during 2017, Giovanna stopped working at Bar Machiavelli due to her failing health and reduced mobility, but she continued to draw a wage. This appears to have been a cause of further disagreement as between the unit holders, including between Paola and Giovanna.
In or around October 2017, the relationships between Paola, Giovanna and the Bicher parties grew tense and broke down. The possibility that Giovanna and Paola could buy out the Bicher parties was raised. This course of action required Paola and Giovanna to raise significant funds.
By 17 November 2017, Paola and Giovanna were not on speaking terms and Mr Pellarini sent an email to Paola headed “Giovanna said for me to put all this to you – she said she will make up with you.” That email effectively proposed that Paola and Giovanna buy out the Bicher parties for about $1,200,000. This proposal was rejected by Paola.
It was around this time that Caterina recalls a conversation with Giovanna in which Giovanna said words to the effect of:
Paola and Giovanna required finance to pay the Settlement Sum to the Bicher parties.
Catastrophically for Paola and Giovanna, both personally and financially, they turned to WFM.
On 16 August 2019, Giovanna executed the August 2019 Will. It was around this time that Paola says she stopped picking up Giovanna from haemodialysis treatment every Saturday.
The August 2019 Will was executed approximately two months before the WFM Loan was first due to be repaid. Essentially, it provided that in the event the Macleay Street property is sold, no recovery action was to be taken by Giovanna’s estate against Paola and/or her associated entities in respect of that loan, and that any obligation of Paola or her associated entities to repay any sums in relation to the WFM Loan was to be discharged on the death of Giovanna. It also stated that, if these events transpired before Giovanna died, Giovanna considered she had made sufficient provision for Paola by paying the WFM Loan from the proceeds of sale of the Macleay Street property and so left the rest and residue of Giovanna’s estate to Walter.
On 19 August 2019, Paola sent an email to Vivian Evans in the following terms:
Relevantly for present purposes, his Honour also found that Giovanna had a fundamental disposition to assist Paola, especially in relation to Bar M: WFM Motors, Kunc J at [139]–[144] as follows:
For the financial year spanning July 2022 to June 2023, Toppi Martin Place generated a net profit of $248,013.
For the financial year spanning July 2023 to June 2024, Toppi Martin Place generated a net profit of $292,649.
At the hearing, there was certainly a suggestion, or implied criticism, of Paola’s failure to provide “comprehensive” or “complete” disclosure of her financial position, including the trading performance of Toppi Martin Place from July 2024 to the date of the hearing (T34–38).
On 29 January 2025, Walter issued a notice to produce to Paola which required her to produce, inter alia, financial statements or profit and loss statements or balance sheets for Toppi Martin Place for the period after 1 July 2024. Paola did not produce those documents. In cross-examination, it became clear that, upon receipt of the notice to produce, Paola knew she could obtain those documents from her accountant on request (T67–69). That did not occur. Paola denied this was a deliberate attempt to conceal information (T69–70).
A document produced on subpoena prior to the hearing and tendered by Paola at the hearing in response to this line of questioning headed “Toppi Martin Place Pty Ltd” and “Balance Sheet as of December 2024” reveals that in the six months spanning July 2024 to December 2024, Toppi Martin Place generated a net profit of $190,277.
Paola accepted that both sales and profits for Toppi Bar & Restaurant were improving year-on-year but suggested that the business was still struggling “to make ends meet” and burdened by large debts, including those owing in respect of taxation and superannuation (T36–38).
In February 2024, Paola and Neil resolved to try to sell Toppi Bar & Restaurant.
On 12 August 2024, two weeks before the hearing of this matter before Pike J was to commence, contracts for the sale of Toppi Bar & Restaurant were exchanged at a sale price of $725,000. That contract was conditional upon the landlord consenting to the assignment of the lease in respect of the Martin Place premises. The landlord did not consent, and the sale fell through. The matter was adjourned in circumstances described above and, eventually, it was re-listed for hearing before me.
Two days prior to the hearing before me commenced, Paola affirmed a further affidavit in which she deposed to the following matters concerning Toppi Bar & Restaurant as at 15 February 2025:
Toppi Bar & Restaurant had been on the market for over 12 months and had still not been sold.
A second contract for the sale of Toppi Bar & Restaurant had been issued to RSPD Capital Investments Pty Ltd with a purchase price of $600,000 plus a trading stock sum to be agreed at stocktake. That contract had not been signed by the prospective purchaser and exchange had not occurred.
The lessor of the Martin Place premises, Investa Asset Management Pty Ltd, has refused to consent to the proposed assignment of the lease to RSPD Capital.
On 13 February 2025, Investa issued a breach notice and demand to Toppi Martin Place claiming $88,437.60 (being the sum of $83,520 in outstanding rent and $4,917.60 in outstanding storage licence fees) by 5pm on 24 February 2025. In her affidavit, Paola said if this amount was not paid by the stipulated due date, the lessor was proposing to terminate the lease. The breach notice and demand did not go so far in explicit terms; it simply reserved all of Investa’s rights under the lease and at law.
Sometime prior to 15 February 2025, Paola borrowed $50,000 from her son Marco, intending to use these funds to pay part of the outstanding rent to Investa.
Toppi Martin Place then owed approximately $70,000 to staff in superannuation for which Paola may be personally liable as a director.
To the extent that Paola was successful in the application to reopen her case, the material admitted into evidence can be summarised as follows:
the affidavit of Paola sworn 25 February 2025, which was in the terms and subject to the s 136 limitation described above; and
certain paragraphs – or parts of paragraphs – of the affidavit of Paola sworn 18 March 2025, as well as certain exhibits to that affidavit.
By way of a non-exhaustive summary, the admitted material of the affidavit of Paola sworn 18 March 2025 set out matters about which I was able to make the following findings:
The terms of the lease in respect of the Martin Place premises, which were exhibited and admitted into evidence. I have found that the lease of the Martin Place premises has been terminated by Investa.
Paola said that, as a consequence of the termination of the lease, “Toppi Martin Place Pty Ltd no longer had a business to sell”. I am satisfied that this statement is correct.
Paola said that, prior to the COVID-19 pandemic, she had been running “two successful businesses”, being Bar M and Toppi Bar & Restaurant. In light of what has happened to both Bar M and Toppi Bar & Restaurant, I am not satisfied that either of them could be described as “successful”.
Paola said that she “managed to remove” (presumably before the lock out) certain items from the Martin Place premises that are said to be assets of Toppi Martin Place, including artwork, furniture, kitchen equipment, alcohol and the like. A list of those items was admitted into evidence subject to a limitation pursuant to s 136 of the Evidence Act that the ascribed value of the items listed was a mere assertion of, and not proof as to, their value. Together, these items – some of which were accompanied by a sale estimate – have an asserted value of $26,154.10. I am satisfied that these items should be regarded as having about $26,000 as their total value.
Paola said that she had a $220,000 “cash deposit” held with the Australia and New Zealand Banking Group Limited (ANZ) against which a bank guarantee was issued in favour of Investa constituting the Bond in accordance with cl 23 of the lease of the Martin Place premises. Paola said that the Bond has been taken out of her ANZ account. However, the exhibit relied upon in support of this assertion – which is a pair of screenshots – does not go very far in proving it. Paola said these screenshots show “before and after the taking of the bond”. Neither screenshot discloses the name of the account holder. The first screenshot is dated 17 July 2024 (described as a “last log in” date) and appears to be a screenshot of an online banking account summary which lists two accounts; an ANZ Business Essentials account with a balance of $62.21 and an ANZ Term Deposit account with a balance of $220,000. The second screenshot is not an online banking account summary. It is a transaction summary of only one account with ANZ. It is unclear if it pertains to either of the above-mentioned accounts as no account number is listed, and there is no mention of the term deposit. Neither screenshot demonstrates when the Bond was deducted, the entry which pertains to it, or indeed if it was deducted at all. None of these matters are elucidated by Paola save for the bare assertion that the Bond was “taken out of my ANZ Account” on some unspecified date. In light of the fact that Investa (through Mills Oakley) indicated in its letter of 25 February 2025 that there was outstanding rent and a Make Good Amount owing by Toppi Martin Place to Investa under the lease of the Martin Place premises and that Investa was entitled to damages against Toppi Martin Place, I have proceeded on the basis that even if there is no evidence that the Bond has been removed from the ANZ account, that it will likely be removed in the foreseeable future.
Finally, Paola listed some liabilities of Toppi Martin Place. That list was supported by various exhibits. The total purported liabilities amounted to some $785,000, most of which were supported by the exhibits. This figure included rent owing to Investa as at 1 March 2025 in the order of $132,794.32, with an assumption that this amount will be deducted from the Bond. Some of “bills owed by Toppi Martin Place” appear not to be “bills” at all but quotes for future purchases. I have had no regard to those “bills” which appear to be quotes and amount to some $12,783.70.
Throughout this case, I have received inconsistent and inaccurate evidence in respect of the financial position of both Paola and Toppi Martin Place. I have done my best to reconcile these inconsistencies, but not all of them can be.
Having considered all the relevant evidence, I find that the apparent assets of Toppi Martin Place are dwarfed by its liabilities and there is little prospect of Paola realising, or having recourse to, any substantial funds from what remains of that failed enterprise.
One of the principal complaints made by Walter throughout the hearing was that there had been a failure on Paola’s part to disclose her financial position in that no valuation, or even “attempted valuation”, of Paola’s principal asset in Toppi Bar & Restaurant had taken place (T11 and T205). No evidence of the value of Toppi Bar & Restaurant was ever adduced, only contracts of sale which did not complete and were submitted by Paola to be evidence of resources she was likely to have – or hoped to have – in the future, as offset by significant liabilities. Given its closure, the issue as to the value of Toppi Bar & Restaurant has largely fallen away, or at least diminished in significance, in my assessment of Paola’s financial position (which is set out in detail below).
During this conversation, Giovanna appeared to direct blame for her financial difficulties elsewhere, including toward NAB, Mr Bicher, Mr Pellarini, Paola and Walter. Additionally, when confronted with unpaid bills or liabilities, Giovanna appeared quick to shirk blame by claiming she “did not know” or was “confused”. These assertions were quickly disputed by both Paola and Walter.
Giovanna defended her gambling habits as her source of “excitement”.
Paola reprimanded Giovanna over her gambling. However, it can fairly be said that Paola appeared to be the one person of those participating in the conversation taking on most of the burden to resolve her mother’s financial difficulties and was directing efforts to remedy the situation. Notably, Paola recommended her mother seek legal advice in relation to the provision of accounting services (a matter purportedly related to a tax debt) and offered to pay her mother’s rent from her own funds by way of a loan, which was to be repaid from the wages Giovanna earned at Bar Machiavelli. Further, in an effort to ensure the funds advanced were actually used to pay the rent, Paola insisted on paying the rent directly to the lessor or managing agency.
Giovanna initially resisted this proposal, preferring to keep her wages and offering instead to pay Paola “later”. Paola refused, responding saying:
The matters litigated and findings made in WFM Motors are not to be re-litigated here, but his Honour’s judgment is in evidence before me and forms part of the material to which it has been necessary for me to give consideration.
What is significant for present purposes is that Giovanna and Paola became estranged amid highly contested litigation, where the stakes were incredibly high for both of them and Giovanna’s eventual liability exceeded $1 million.
Paola says she was “completely distraught” at the allegations made by Giovanna in the WFM proceedings “with the lies of saying that [Paola] had tricked [Giovanna] into signing a mortgage when [Giovanna] knew full well what she was doing because [Paola] didn’t want that mortgage, [Giovanna] did” (T23). Paola says that Giovanna’s claims that Paola “tricked her into signing the guarantee” ruined Paola’s reputation and strained Paola’s relationship with the landlord of the Neild Avenue premises (T55). Paola described this as the “main rift” between her and mother, with the suggestion of another disagreement in relation to the name of Toppi Bar & Restaurant sometime later in 2019 or 2020 (T55). Paola says that, while she did not like what Giovanna had done and that she was “very angry” with Giovanna because of it (T25), she still loved her “like any daughter would love her mother” (T23).
During the cross-examination of Walter, his counsel made it plain that there is no allegation made by Walter in these proceedings that Giovanna was “tricked” into entering the WFM Loan transaction or contesting the WFM proceedings (T126–127).
The extent of their falling out, and the depths to which Paola’s feelings of “complete frustration” (T25) had descended amid the then ongoing litigation in the WFM proceedings, is perhaps most evident by the following email sent on 18 June 2021 from Paola to her solicitor, Mr Beazley:
Paola says she understood Giovanna might die in or around November 2021 but that she did not visit her, reach out to her, or enquire with Walter or Caterina as to Giovanna’s wellbeing (T28).
Paola says she later attended her mother’s funeral (T28). I accept Walter’s evidence that Paola did not assist in the preparation for the funeral or burial of Giovanna. Paola did not attend the wake organised by Walter in memory of Giovanna afterwards, which was held at Machiavelli. Paola says she held her own wake (T28). It is unclear what that entailed.
Paola rejected the notion that she disliked Giovanna, instead characterising the position as being that she “disliked what [Giovanna] had done” (T23). In my assessment, the attitude displayed by Paola towards Giovanna in the last 18 months of her life would probably have been the same whichever of the two characterisations is correct.
In my finding, by the time that Giovanna died in November 2021, whatever daughterly love Paola claims that she felt towards Giovanna as her mother was incapable of being expressed such was her bitterness towards Giovanna.
I do not make any finding of fault on the part of one or other of Paola or Giovanna in relation to the collapse of their relationship, despite the fact that each of them undoubtedly blamed the other for their trenchant disagreements. They were both strong-willed towards each other. I have no doubt that they each contributed to that wretched state of affairs in some way or other.
Walter gives evidence that he has struggled with gambling throughout his life, including after Giovanna’s passing in November 2021, and that as of December 2024 he occasionally continued to gamble, including by using some of the monies lent to him by Caterina each week.
During cross-examination, Walter accepted that Giovanna did not know how to use internet banking or telephone banking. Walter said that in addition to other matters such as bathing, food preparation and transportation, he would assist his mother with her banking and that this included taking Giovanna to the bank or to the automated teller machine (ATM) and that, once there, Giovanna would tell him what transactions she wanted to conduct (T129–130).
In my estimation, Walter’s financial circumstances are ones of significant need made all the more so by his serious gambling problem for which he desires treatment.
Walter’s problems with managing money are highlighted by the following section of this judgment, which demonstrates that within a short period of time Walter received about $800,000 and is simply unable to account for what became of it. I do accept that he no longer has that money. In my view, it is likely to have been dissipated by his gambling.
On 2 November 2021, the day before Giovanna died, the sum of $300,000 was transferred from Giovanna’s WBC account to Walter’s bank account. Again, Walter says this was done at Giovanna’s request, for the same reasons he transferred $299,000 some eight days prior. There is no evidence as to where that $300,000 has gone after it was received by Walter.
Walter’s evidence about each of these transactions – save for the return of the deposit paid in respect of the Bondi Junction apartment, being a matter which was not fully explored on cross-examination – was to the effect that all transactions from Giovanna’s WBC account were conducted under the advice or direction of Giovanna (T141–144).
When challenged about this aspect of his evidence in cross-examination, Walter become agitated and argumentative, as the following excerpt reveals (T144–145):
At the hearing, during the cross-examination of Paola, it became clear that Toppi Martin Place was also being used to fund several other of Paola’s personal expenses, such as her day-to-day living expenses and her gambling activities. It is not to Paola’s credit that the full extent to which Toppi Martin Place was funding her living expenses and gambling was not revealed in her affidavits (T70–74 and T81). I find that Toppi Martin Place was also funding Neil’s living expenses, despite Neil’s refusal to accept that position in cross-examination (T95–102).
In essence, Paola appears to have treated the Toppi Martin Place CBA account and card as her own for the purpose of paying her living expenses. Paola did not disclose her gambling expenses, nor did she fully or explicitly make plain the extent and frequency of her recourse to the assets of Toppi Martin Place to pay those expenses and her other “living expenses”. It is clear from the evidence before me that the term “living expenses” has been used in a very broad sense by Paola so as to include not only her own gambling expenses but occasionally those of her son, David (T78). The court was clearly not given the “full picture” as to her financial circumstances in her affidavits and I was invited to make credit findings about this (T207–208).
It was also said in that same affidavit that this was the same basis upon which Toppi Martin Place was paying Paola’s rent; and that those payments were then treated by their accountant, Mr Davidson, “as a corresponding deduction from the $2.914 million or so which the trust owes [Paola] and Neil”.
The precise method by which Paola’s rent and living expenses were accounted for is less clear.
It is clear enough that funds were extracted from Toppi Martin Place and this would, it is said, result in a corresponding reduction in the unsecured loan from Paola and Neil to BaseCove in its capacity as trustee of the Cunningham Family Trust. There are no statements concerning that unsecured loan in evidence before me.
Further, as I have mentioned, there is no evidence which reveals the ownership of the shares in Toppi Martin Place beyond Paola’s assertion that BaseCove owns them. The tax return for the Cunningham Family Trust for the financial year ending 30 June 2022 is in evidence before me and the only shareholdings listed are those pertaining to Bar M and Hospitality Placements. This suggests that, at least as at 30 June 2022, BaseCove did not hold any shares in Toppi Martin Place. Despite this absence of evidence, as I have mentioned above, Walter did not submit that I should take any different course than to treat Toppi Martin Place as owned by BaseCove as trustee of the Cunningham Family Trust.
The consequence is that the business of Toppi Bar & Restaurant indirectly formed the basis for the repayment of Paola’s loan to BaseCove and was the source of her income in the following way. The generation of income by the business of Toppi Bar & Restaurant caused money to flow back from Toppi Martin Place to enable BaseCove as trustee of the Cunningham Family Trust to make sporadic repayments of the $2.9 million loan owed by BaseCove to Paola and Neil. In a similar vein, it is suggested that the once proposed sale of Toppi Bar & Restaurant would have provided funds to be paid or repaid to BaseCove in its capacity as trustee, and those funds could then be used in part repayment of the loan owing to Paola and Neil.
The problem with the evidence before me about the manner in which both Paola and Neil treated the income of Toppi Martin Place as their own to pay their expenses is that it is extremely difficult to calculate and account for these expenses with any degree of precision.
During cross-examination, Paola’s evidence about this arrangement could be fairly described as opaque and inconsistent. By way of example:
According to Paola, her accountant would somehow, and presumably months later, account for these “living expenses”, some of which were undescribed withdrawals from ATMs conducted by both Paola and David, in the manner described. Paola said occasionally these withdrawals related to the payment of wages and/or tips for staff at Toppi Bar & Restaurant. How one would differentiate or discern those withdrawals from those which related to “living expenses”, again using that phrase in its broadest possible sense, was not explained (T70–74).
Initially, Paola gave evidence that David did not have the physical card for the Toppi Martin Place CBA account but that he “has it on his phone”. When challenged about withdrawals from ATMs which occurred at places such as City Tattersalls, Paola clarified that David did in fact have access to the physical card, that she would give it him, and he had it “a lot of the time” (T73–74).
Under cross-examination, Paola was uncertain how her “living expenses” were “booked” or recorded, whether as “director’s loans” or via BaseCove in the manner described above (T70–72 and 76–78).
Thankfully, it is no longer necessary for me to navigate my way through this haze.
In essence, Paola gave evidence that she drew down approximately $8,000 per month from Toppi Martin Place to cover her rent and “living expenses” (T83).
As a result of the closure of Toppi Bar & Restaurant on 25 February 2025, that resource is no longer available to Paola. Not only did the primary source of income for Paola cease at that time, so did the likelihood that she and Neil would be repaid any of loan owed to them by BaseCove from the proceeds of the proposed sale.
As of February 2025, Paola is employed as a chef at the Matraville Hotel earning $1,500 per week working Wednesday to Sunday from 10:00am to 9:00pm.
In August 2024, then aged 60, Paola’s intention was to complete the sale of Toppi Bar & Restaurant, hopefully recoup most of her superannuation and start her working life somewhere else again. Now aged 61, Paola intends to remain a chef but says she is limited in that she can no longer work 10 to 12 hours per day in the kitchen because of the toll it takes on her body, particularly her feet and ankles. Paola accepted that her skills extend to being a very successful chef, that she has a lot of experience in running businesses and she could certainly work as a chef and a business proprietor well into her 70s (T40).
By affidavits sworn 16 August 2024 and 15 February 2025, Paola gives some evidence of her financial position, including the following assets, liabilities, monthly income and monthly expenses:
Assets totalling $23,000 comprising:
Neil’s financial circumstances are substantially intertwined with, and almost identical to, those of Paola. To the extent those financial circumstances differ, I have taken those differences into account. In essence, Neil has very limited assets supplemented only by the substantial debts owing to both Paola and Neil by Toppi Martin Place and BaseCove, both of which appear to have very limited, if any, prospect of recovery.
Notices of assessment issued to Neil in respect of financial years ending 30 June 2021, 30 June 2022 and 30 June 2023 reveal a modest taxable income in those years of $22,800, $21,943 and $21,850, respectively. There is no evidence before me as to Neil’s taxable income for the financial year ending 30 June 2024 or his expected income for the current financial year.
In August 2024, Neil was taking a wage from Toppi Bar & Restaurant when sufficient funds were available to do so. Obviously, that is no longer the case.
Paola and Neil hope to purchase a two-bedroom apartment in or around Potts Point, an area in which they have lived for some twenty years, at an estimated cost of between $1.1 million and $1.6 million.
Paola says they require a two-bedroom apartment to accommodate their granddaughter when she visits them (T20).
Paola also has ambitions to open a new restaurant or “pasta bar” and gives evidence that about $200,000 is the estimated cost of establishing such an enterprise (T20–21).
While Investa’s re-entry into the Martin Place premises and termination of the lease were arguably foreseeable in the circumstances known to Paola at the hearing on 17–19 February 2025 – indeed, it was expressly foreshadowed as a distinct possibility in Paola’s affidavit affirmed on 15 February 2025 – the events of 25 February 2025 nonetheless represented a fundamental shift in the financial position attributed to Paola at that hearing. This change in circumstances was promptly brought to the attention of both the court and Walter. In these circumstances, and with regard only to the truly fresh evidence, there could be no reasonable suggestion of delay which requires explanation of the kind referred to in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [103].
Characterised in this way, this evidence is plainly of the kind referred to by Stevenson J in Cappello at [46] as evidence which seeks to reagitate arguments already considered by the court, or to remedy some failure to present an argument “in all its aspects or as well as it might have been put”.
Even putting that to one side, the prejudice which would be occasioned to Walter if I allowed this aspect of the application appears unanswerable. Indeed, Paola made no attempt to answer it.
In Verzar v Verzar [2014] NSWCA 45 (Verzar appeal decision), Meagher JA (with whom Macfarlan and Barrett JJA agreed) elaborated on the kinds of unconscionable conduct, on the part of either the applicant or the beneficiaries, that might justify the grant or refusal of the application to extend time, stating at [25]:
In short, Walter argues that Paola’s failures to disclose the legal advice she received, her financial circumstances and respond to the notice to produce, individually and collectively, mean that the court cannot undertake an evaluative process contemplated by s 60 of the Act and therefore leave to bring the claim out of time under s 58(2) of the Act should be refused.
In light of my decision to extend the time for Paola to make the provision application, it is unnecessary for me to decide whether, by granting leave to Paola to file the amended statement of cross-claim, ss 64 and 65 of the CPA have the effect that the application was brought in time.
If a person applying for family provision has obligations of support in respect of others (such as a parent’s obligation to support a dependent child), that will be a relevant consideration in determining what is an appropriate provision for the maintenance of the applicant.
An applicant adult child is not required to show some special need or special claim.
An adult child’s lack of savings sufficient to meet present and future demands, such as that of ill-health, which is likely to be of greater concern with age, but also of the ordinary vicissitudes of life, is a relevant consideration. An applicant’s diminished or total lack of earning capacity could give rise to an increased call on the estate of the deceased.
The applicant bears the onus of establishing before the court, on the balance of probabilities, the justification for the claim.
In the exercise of its statutory powers in determining an application for family provision, the court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating the deceased as wise and just rather than fond and foolish, making allowance for current social conditions and standards and consulting the statutory criteria so far as they may be material in the unique circumstances of the case: Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, Dixon CJ (with whom McTiernan J agreed) at 20; Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31, Gibbs J (with whom Stephen and Mason JJ agreed) at 502; Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, Allsop P at [12] and [16]; Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392, Basten JA at [11]–[12]; Bassett, Bell P, Leeming and Payne JJA at [170]–[171]; all of which were cited for these general propositions by Lindsay J in Broadus v Cradduck [2025] NSWSC 402, at [3].
It is the duty of the court to apply the statutory text to the particular circumstances of the case, taking into account the “totality of material circumstances”: Verzar, Lindsay J at [131].
This leaves the amount in Giovanna’s WBC account of $1,510,264.27. In my view, Walter’s needs are greater than Paola’s needs and Paola has a much greater capacity to earn income than Walter does. If I adopt the position that they should share in Giovanna’s estate relative to their needs and financial positions, I consider that Walter should receive a two-third share of the amount in Giovanna’s WBC account and Paola should receive one-third share of the amount in Giovanna’s WBC account.
From this amount, Paola will have to meet any liability that she has incurred for the as yet unquantified costs orders that have already been made against her in favour of Giovanna’s estate in these proceedings. Those are liabilities which Paola has brought upon herself by her conduct of these proceedings, and which have diminished Giovanna’s estate.
Undertaking the evaluative judgment required of me, I consider that a wise and just testatrix in the position of Giovanna, in light of all the circumstances of the case as now known and having regard to current social conditions and standards, and consulting the criteria set out in s 60(2) of the Act, would determine that Paola ought to receive out of Giovanna’s estate the following provision:
The release by both the estate of Giovanna and Walter (as executor) of Paola from all liability to the estate on account of Giovanna’s right to contribution as co-guarantor of the liabilities of Bar M Pty Ltd to WFM Motors Pty Ltd.
A payment in the amount of $500,000, less any amount that Paola is to pay to Giovanna’s estate following the resolution of the issue of costs in these proceedings.
The issue of costs in these proceedings not only involves the determination of an appropriate costs order in respect of Paola’s application for a family provision order that I have decided but also includes each of the following:
The order made on 29 October 2024 by Pike J that Paola pay, on the ordinary basis, Walter’s costs of the proceedings other than to the extent they relate solely to a claim for a family provision order, with liberty for Walter to apply, at the conclusion of these proceedings, that those costs be payable on the indemnity basis: Toppi v Toppi (No 2) [2024] NSWSC 1363.
The order made on 16 April 2025 by me that Paola pay the costs of Walter of the notices of motion filed 7 and 16 April 2025, including with respect to the hearings on 5 March 2025 and 16 April 2025, with liberty for Walter to apply for those costs be paid on an indemnity basis and/or be the subject of a special costs order.
Until those costs are determined, no payment of the provision should be made to Paola. I am especially mindful that the issue of determining costs should not, however, hold up any interim distribution of Giovanna’s estate to Walter and I will order an appropriate amount be paid on the application of Walter.