La Selva v La Selva

1. [1]

   The late Silvana La Selva (Silvana) passed away on 24 December 2022 aged 82 years. She had three children – two daughters Milvia La Selva (Milvia) and Melissa Isaacs (Melissa), who are the plaintiffs, and a son, Angelo La Selva (Angelo) who is the defendant.

2. [2]

   During the period 10 May 2022 to 9 December 2022, a total of $1,318,000 was withdrawn from Silvana’s bank accounts for the benefit of Angelo or his wife and daughter.

3. [3]

   By these proceedings, Milvia and Melissa seek orders for the return of $1,293,000 of those monies by Angelo for the benefit of the estate. The Impugned Transactions are as follows:

4. [4]

   It is not suggested that Silvana lost capacity at any stage. Rather, the monies are sought to be recovered on various bases, including breach of fiduciary duty, unconscionable conduct and, in the case of a loan agreement dated 16 June 2022 (the Loan Agreement), on the basis that it was an unjust contract under the Contracts Review Act 1980 (NSW) (Act). In this regard, a declaration is sought that the Loan Agreement is voidable either at general law or otherwise under the Act.

5. [5]

   The proceedings were heard on 2 to 4 December 2024. Mr N Simpson appeared with Ms A Green for the plaintiffs. Ms M Pringle appeared for the defendant.

6. [6]

   For the reasons set out below, I am satisfied that each of the Impugned Transactions was the product of unconscionable conduct on the part of Angelo and should be refunded by Angelo to Silvana’s estate. The parties should agree final orders, including as to costs. Any remaining issues will be determined on the papers.

General observations of the witnesses

1. [7]

   The principal witnesses to give evidence were Milvia, Melissa, Angelo and Mr Philip Previte (Mr Previte), a solicitor. Two further witnesses were called in Angelo’s case – Ms Tina D’Amico and Mr Giovanni Pontieri. A further two – Ms Susan Ali and Mr Hatim Ali, were called in the plaintiffs’ case.

2. [8]

   I deal first with Ms D’Amico and Mr Pontieri. I do not propose to place any reliance on their evidence.

3. [9]

   Although each obviously prepared affidavits deposing to certain events, it emerged in cross-examination, which was conducted by telephone because of the apparent unavailability of each to attend Court, that neither had any reliable recollections of relevant events. In the case of Ms D’Amico, she had no recollection of even making her affidavit.

4. [10]

   The evidence of Mr and Mrs Ali was in very short compass. There was no credit challenge to either. Their evidence is very much of peripheral relevance.

5. [11]

   Milvia and Melissa were honest witnesses doing their best to assist the Court. I accept Melissa’s evidence without hesitation – her credibility was not seriously questioned. Whilst for the most part I accept Milvia’s evidence, I am alert to the fact that Milvia has a great dislike for Angelo and as such, some of her evidence may, in reality, simply be Milvia’s version or opinion of events rather than an objective recollection. For the most part, though, her evidence is not relevant to the principal matters for determination.

6. [12]

   The plaintiffs contended that I should not accept Angelo’s evidence unless it was against his interests or supported by objective material. Against this, Angelo’s counsel contended that he was not a sophisticated witness who probably suffers from a bad memory. I approach Angelo’s evidence with considerable caution. This is particularly so given that most of the critical events involve Angelo’s dealings with Silvana and she is no longer available to give her version of events. In some areas, Angelo’s evidence was unreliable. An example is the fact that in his affidavit, he deposed to Silvana attending the bank with him to make all of the relevant Impugned Transactions, yet he corrected this in evidence-in-chief to only relate to the first transactions on 10 May 2022. In other respects, Angelo refused to agree to propositions until incontrovertible documents were put in front of him. An obvious example is his interactions with the staff at Scalabrini Village in early July 2022 concerning his control over who could visit his mother. I formed the view that Angelo’s reluctance to make concessions was out of a fear of giving evidence detrimental to his case.

7. [13]

   Mr Previte was an honest witness doing his best to assist the Court. For the most part his evidence was supported by, and went no further than, contemporaneous file notes he prepared or correspondence he sent or received at the time. I accept his evidence.

8. [14]

   In the end, I place principal reliance on the evidence of objective events as to the influence of Angelo over his mother and her affairs.

Factual narrative

1. [15]

   The relevant facts are in relatively short compass. I set them out below, resolving any factual disputes that are necessary for a determination of the issues.

2. [16]

   Silvana and her husband Luciano La Selva (Luciano) lived at McGrath Avenue, Five Dock (the Five Dock House).

3. [17]

   In about July 2021, Angelo moved into the Five Dock House to live with his parents. At the time, he was living with his wife and daughter in Queensland and moved to Sydney in search of work. He had previously lived at the Five Dock House for five months in 2019 but had otherwise lived out of Sydney since about 2004.

4. [18]

   At this time Luciano was not well, having been admitted to Royal Prince Alfred Hospital on 3 June 2021. In about mid-August 2021, he was transferred to a nursing home, Scalabrini Village (Scalabrini) where he passed away on 30 August 2021.

5. [19]

   Prior to Angelo moving into the Five Dock House, it appears that Milvia was her parents’ primary carer. Milvia and her parents were very close. Milvia was in contact with her parents on the phone two or three times a week and would see them in person at least once a week up until July 2021. From 2008 to 2021, Milvia would drive her parents to all their medical appointments that were outside Five Dock or Haberfield.

6. [20]

   Silvana was diagnosed with breast cancer in about 2017. In September 2018, she had a double mastectomy and Milvia moved into the Five Dock House for about a month to care for her and assist with her recovery.

7. [21]

   Melissa appears to have had little contact with her parents between 2017 to 2020 but since then until Angelo moved into the Five Dock House, her relationship was restored and she was in regular contact with her parents.

8. [22]

   There was some dispute about what contact Angelo had with his parents prior to moving back in with them in July 2021. On his evidence, he moved from Sydney to Orange in 2004 but thereafter maintained regular contact with his parents including regular telephone conversations and regular in-person visits. Milvia said Angelo’s contact with his parents was sporadic. It is not necessary to resolve this difference. I am satisfied that prior to July 2021, Milvia was her parents’ primary carer and this changed when Angelo moved into the Five Dock House in July 2021.

9. [23]

   In about 2020, Silvana and Luciano gave Milvia online banking access to an account they maintained with the National Australia Bank so that she could help them pay bills online. This is objective evidence of the role played by Milvia in looking after her parents.

10. [24]

    In November 2020, each of Silvana and Luciano executed Enduring Powers of Attorney and Appointments of Enduring Guardian documents, appointing Milvia and the other parent as their attorneys and guardians. Each of Silvana and Luciano had previously made wills in July 2007. Each appointed Milvia their executor in the event one predeceased the other and left their estate to their three children in equal shares. The execution of these documents – going back as far as 2007 - is further objective evidence of the significant role played by Milvia in looking after her parents prior to July 2021.

11. [25]

    Angelo gave unchallenged evidence that after he moved into the Five Dock House he assisted Silvana with some small chores including mowing the lawn, doing the gardening, putting the bins out and bringing them in and collecting the mail. While he was living at the Five Dock House, Angelo was working at the Canada Bay RSL.

12. [26]

    It was also not in dispute that in or about August 2021, Angelo was given access to the National Australia Bank account maintained by Silvana.

13. [27]

    At about the time that Angelo moved into the Five Dock House, Silvana underwent an Aged Care Assessment and was approved for permanent residential care, residential respite care at a high level and a level three home care package.

14. [28]

    The Assessment Report records that “Silvana walks with a stick and has a frame to use if required. She walks slowly, is wobbly and loses balance quickly” and that her arm is “‘no good’ … she cannot use it at all”. It also records that Milvia holds attorney and enduring guardianship orders, and is the main emergency contact person.

15. [29]

    Silvana’s health continued to decline in the latter part of 2021 when her breast cancer returned. Neither Milvia nor Melissa was made aware by Angelo at the time that Silvana’s breast cancer had returned. In December 2021, she moved into Scalabrini, initially for respite care and, in late January 2022, on a permanent basis.

16. [30]

    Angelo accepted that as at December 2021, he was aware that Silvana had Stage 4 breast cancer, high blood pressure, high cholesterol, and suffered from physical difficulties and pain. She was also, obviously enough, still grieving the recent loss of Luciano, her husband of some 62 years. Angelo admitted that at the time Silvana went into respite care she required his assistance and was dependent on him.

17. [31]

    The evidence paints a picture of Milvia becoming suspicious of her brother’s motives from the time that he moved into the Five Dock House in July 2021 with an increasing souring of the relationship between Milvia and Angelo and also Milvia and her mother. Matters got worse when Silvana went to live at Scalabrini because neither Milvia nor Melissa were vaccinated and, as this was the height of the COVID-19 pandemic, unvaccinated persons were not permitted to access Scalabrini. Milvia and Melissa had to rely on telephone contact with their mother (two to three times a week) or for Angelo to take Silvana to the Five Dock House to visit Melissa and/or Milvia. This occurred on two or three occasions.

18. [32]

    Angelo appears to have continued to live at the Five Dock House after his mother went to live at Scalabrini up until at least April 2022. He lived there rent free, with Silvana paying, at least, all household expenses.

19. [33]

    An early sign of her changing attitude towards Milvia and Angelo is the new will that Silvana executed on 25 November 2021. The will was prepared by a new solicitor, Mr Previte. Silvana was apparently referred to Mr Previte in about September 2021 by a representative of the Italian Patronato. Silvana and Angelo had an appointment to discuss Luciano’s Italian pension and Silvana was apparently advised to get legal advice in relation to the transfer of property in Silvana and Luciano’s joint names into Silvana’s sole name, Luciano having passed in August 2021. She was referred to Mr Previte due to his experience and fluency in Italian.

20. [34]

    The new will appointed Milvia and Angelo as joint executors and left Silvana’s estate to her three children equally.

21. [35]

    Mr Previte wrote to Milvia on 3 December 2021 attaching a copy of the new will. Mr Previte also advised Milvia that Silvana proposed revising her Enduring Power of Attorney and her appointment of Enduring Guardian by appointing Milvia and Angelo her attorneys as she is concerned having a sole attorney and guardian in case the appointee is unable to act. Mr Previte asked for Milvia’s consent to being so appointed.

22. [36]

    Milvia was clearly concerned at the time at what she perceived to be Angelo’s increasing influence over their mother. On 1 December 2021, she left a voicemail message on her mother’s phone in which she referred to Angelo and Mr Previte as “cretins” and requested Silvana to ring Mr Previte and ask him to email a copy of Silvana’s new will. On 9 December 2021, Milvia emailed Mr Previte advising him that she had found out about the new will in a text from Angelo dated 30 November 2021 in which he told Milvia to contact Mr Previte for a copy of the will. The email provides an insight into Milvia’s concerns at the time and sets the scene for the conflict that followed. It stated:

23. [37]

    On 15 December 2021, Angelo sent an email, ostensibly in Silvana’s name, asking for a copy of all email correspondence Mr Previte has had with Milvia “for my records”. Angelo obviously was aware Milvia had been corresponding with Mr Previte.

24. [38]

    Silvana signed a Residential Aged Care Agreement for Scalabrini on or about 27 January 2022. The maximum refundable accommodation deposit (RAD) payable by Silvana was $975,000 as set out in Schedule 1. Angelo signed the agreement as “Guarantor”.

25. [39]

    On 8 February 2022, Silvana entered into an Exclusive Auction Agency Agreement to sell the Five Dock House. The house sold at public auction on 26 March 2022 for $4.3 million.

26. [40]

    There was a suggestion in the evidence that after Silvana moved into Scalabrini, Angelo became the primary contact for updates from Scalabrini in relation to Silvana’s health. On 25 February 2022, Milvia sent an email to Scalabrini, copy to Melissa, asking to be kept informed about matters regarding their mother.

27. [41]

    There is also correspondence from late February 2022 from the estate agents appointed to sell the Five Dock House to Milvia that their current instructions are to send all correspondence to Angelo with regards to the sale. Milvia responded that all three children are to be included.

28. [42]

    Angelo admitted that he accompanied Silvana to all external medical appointments after she moved into Scalabrini, save for one of her cancer treatment sessions. He also took Silvana to any conferences she had with Mr Previte. Angelo’s email address was also used for communications from Mr Previte to Silvana although it would also appear that Mr Previte would send letters in the post to Silvana and Silvana would regularly telephone Mr Previte. Silvana did not have her own email account. Later evidence, (which I deal with below) – particularly the events of late Jun/early July in relation to an unplanned visitor to Scalabrini – suggests that Angelo was quite controlling in relation to who had access to his mother.

29. [43]

    Whilst Angelo could not control anyone calling Silvana, such as Milvia and Melissa, and he did not seek to, I am satisfied that he did not take any steps to update his sisters in relation to their mother’s general health and condition and that this was one cause of the ongoing family friction.

30. [44]

    The Concord Hospital progress notes of a visit to Silvana at Scalabrini on 16 February 2022 record that Silvana was experiencing some neuropathic pain. Her breast cancer had metastasised. The notes also record that Silvana required assistance with showering and no longer engaged in social activities. At this point, she was in relative isolation. The notes further record that Angelo was telephoned and told what was otherwise recorded in the notes.

31. [45]

    Angelo admitted that, at this time, Silvana was suffering stress as a result of the family conflict.

32. [46]

    On or about 24 February 2022, Angelo and Silvana had a telehealth consultation with Concord Hospital. The notes record Angelo “reports there is family conflict and stresses on Silvana with some family members ringing the NH and pressuring her to make certain decisions”. Angelo said his mother told her doctor this. Angelo did not give any reason why it would have been his mother and not him. I do not accept Angelo’s evidence and regard the hospital record as more reliable.

33. [47]

    Shortly after this, on 17 February 2022, a cognitive skills test in relation to Silvana was carried out at Scalabrini. The result was mild cognitive impairment.

34. [48]

    On 31 March 2022, Silvana signed an Advanced Care Plan setting out her wishes in relation to her future medical treatment. She ticked the box to indicate she wished to die a natural death and did not want CPR.

35. [49]

    In late March 2022, Silvana apparently signed a revocation of the Enduring Power of Attorney and Appointment of Enduring Guardian that were then in place in favour of Milvia. The documents were prepared by Mr Previte but apparently he was not instructed to serve the documents on Milvia at the time. These instructions were not provided until 11 April 2022.

36. [50]

    It appears that relations were souring even further between Milvia and Angelo during this period. On 2 April 2022, Milvia left a voicemail message asking for Angelo to return her call as she needed to know when she could come and get everything out of the Five Dock House. The message ended “Fuck you make me sick.”

37. [51]

    On 9 April 2022, Angelo sent an email to Milvia and Melissa attaching a calendar “with tentative dates and times for you to collect your belongings out of the house”. The email was expressed in quite formal terms and required each of Milvia and Melissa to provide a list in writing “of everything that’s yours to be collected within the next 5 days….as everything not claimed by then will be sold or donated to Vinnies and the Salvos”.

38. [52]

    The relationship between Milvia and Angelo reached rock bottom on 10 April 2022. An incident occurred between Milvia, her partner Robert and Angelo when Milvia and Robert attended the Five Dock House as part of an arranged visit. It was not in dispute that, as a result of the incident, Milvia and Robert were arrested and subsequently charged. There was no dispute as to what Milvia said to Angelo on that occasion. A transcript was in evidence showing that when Milvia and Robert arrived, Angelo said they were not to enter the property as Silvana was not present. It was also not in dispute that Milvia subsequently pleaded guilty in the Local Court to a charge of intimidation and no conviction was recorded. An Apprehended Violence Order was also in place against Milvia for a period of time.

39. [53]

    The parties sought to adduce considerable further evidence at the hearing as to the detail of what occurred on 10 April 2022. In light of what was common ground, I rejected this further evidence on the grounds of relevance.

40. [54]

    As Milvia was arrested, she was unable to speak to Silvana in the immediate aftermath of the incident. Milvia said that Silvana took Angelo’s side completely and, as a result, she had less contact with her mother after the incident. Given Silvana’s vulnerable state at this time, and that Milvia was not able to speak with her mother, this is not surprising.

41. [55]

    On 11 April 2022 at 11.18am, Angelo rang Mr Previte and told him he had been assaulted. Mr Previte told Angelo to report the matter to the Police. Mr Previte’s file note of the call with Angelo ends with “He then arranged for telephone call with his mother who is at N home”. Angelo had obviously spoken to his mother prior to this time and given her his version of what had occurred.

42. [56]

    On 11 April 2022 at 11.21am, (immediately after Angelo’s call to Mr Previte) Silvana rang Mr Previte. She was apparently crying. She instructed Mr Previte to send the revocation of Enduring Power of Attorney and Enduring Guardian to Milvia and to prohibit her from going to the Five Dock House. Instructions were provided for a new Enduring Power of Attorney to be drawn up in favour of Angelo and Melissa. At 12.43pm on 11 April 2022, Mr Previte sent an email to Milvia advising her of the revocation and attaching the relevant documents.

43. [57]

    On 12 April 2022, Silvana and Angelo met with Dr Annabel Goodwin (Dr Goodwin) to review Silvana’s progress with palliative therapies. Dr Goodwin’s note to Dr Tenisi, (Silvana’s GP) in relation to the visit records:

44. [58]

    Angelo said in cross examination it would have been Silvana relaying this to the doctor, not him.

45. [59]

    During this period, Silvana had 15 rounds of radiotherapy in 3 weeks.

46. [60]

    On 19 April 2022, Silvana opened a new bank account with the St George Bank. According to Angelo, his mother told him in or about late 2021 that she was going to open a new bank account so that Milvia could not access it or see her transactions. No explanation was given by Angelo as to the delay between late 2021 and April 2022 or why Silvana did not want Milvia accessing the account to see her transactions. For some time prior to this, Milvia had been assisting her parents with banking transactions including online banking and there is no objective evidence that Silvana was somehow unhappy with Milvia, save perhaps for what Angelo had told her occurred on 10 April 2022, well after the apparent late 2021 conversation that Angelo deposed to with his mother.

47. [61]

    In cross-examination, the principal reason given by Angelo for the new account was that the local National Australia Bank branch was closing. Angelo also suggested another reason was that Silvana’s usual teller, who spoke Italian, no longer worked there. Silvana apparently chose the St George Bank because there was a local branch with Italian speaking tellers. Angelo apparently attended the branch with his mother and was made a signatory to the account. Milvia and Melissa were not made signatories and it would appear were not even made aware of the account for a considerable period of time – well after the settlement of the Five Dock House.

48. [62]

    From what appears below, it is obvious that at the time of opening the new account, Silvana was apparently contemplating gifting money to Angelo when the sale of the Five Dock House settled. Silvana would then have substantial money deposited into her bank account to which Milvia then had access and was able to view any transactions. The establishment of the new bank account, to which Milvia and Melissa would not have access, must be seen in this context. The link between the two is inescapable and unlikely to be coincidental.

49. [63]

    On 19 April 2022, Silvana conferred with Mr Previte at his office and instructed him that she wanted a new Enduring Power of Attorney document drawn up, appointing Melissa and Angelo her attorneys and only coming into effect should she be unable to manage her affairs. She also instructed Mr Previte that she wanted a new will drawn up with Angelo and Melissa as executors (not Milvia) with each child to receive one third of the estate.

50. [64]

    Mr Previte’s file note ended with:

51. [65]

    As appears below, certain handwritten documents were in evidence, apparently prepared by Silvana, in relation to several of the gifts that are sought to be impugned in these proceedings. The handwriting differs quite markedly between the various handwritten notes and, in some cases, within the notes. No attempt was made by the plaintiffs to prove that the notes were not made by Silvana and I proceed on the basis that they were.

52. [66]

    On 20 April 2022, Silvana rang Mr Previte and instructed him to include a legacy of $100,000 to Angelo and that she wanted him (Mr Previte) to be the estate solicitor.

53. [67]

    On 26 April 2022, Silvana conferred with Mr Previte. Angelo obviously took her to the conference, as Mr Previte’s file note records Angelo as being in the waiting room. Mr Previte’s file note is as follows:

54. [68]

    The Enduring Power of Attorney executed by Silvana was, as per her instructions, only to commence when Silvana became unable to manage her own affairs. Angelo apparently accepted the appointment as Attorney on the same day. Melissa attended on Mr Previte on 2 May 2022 and signed the Power of Attorney document accepting the appointment. Later on 2 May 2022, Silvana rang Mr Previte and changed the instructions for her new will to leave everything to her three children in equal shares.

55. [69]

    Angelo admitted that as at the end of April 2022, Silvana’s anxiety and stress levels were elevated and that this was in part due to family conflict.

56. [70]

    On 25 April 2022, the Administration Officer at Scalabrini sent an email to “The Village Clinical Care” – I infer an email to all staff at Scalabrini – as follows:

57. [71]

    On 4 May 2022, Silvana attended Mr Previte’s office and signed her new will. His file note records that he explained it to her.

58. [72]

    At about this time, it appears that Silvana was undergoing chemotherapy. As set out above, she was diagnosed with Stage 4 breast cancer in December 2021.

59. [73]

    The sale of the Five Dock House completed on 9 May 2022. The net proceeds of sale of over $3.8 million were deposited into Silvana’s newly opened St George account to which Angelo (but not Milvia and Melissa) had access.

60. [74]

    On 10 May 2022 (the day after the $3.8 million plus was deposited into Silvana’s bank account), the first set of transactions in favour of Angelo which the plaintiffs seek to claw back occurred.

61. [75]

    According to Angelo, in May 2022, he and his mother had a conversation in Italian, the English translation of which is in the following terms:

62. [76]

    Perhaps prior to this conversation and at 8.45 am on 10 May 2022, Angelo took Silvana to see Dr Goodwin, her oncologist. Dr Goodwin’s report of that consultation refers to the “significant family conflict”.

63. [77]

    On 10 May 2022 Angelo says that his mother asked him to take her to the bank. Silvana then went in person to the teller and performed the following transactions:

64. [78]

    The second of these transactions is obviously referrable to the conversation set out above. No conversation was deposed to by Angelo with his mother in relation to the other two transactions, particularly the $200,000. In an email to Mr Previte dated 7 February 2023, Angelo stated:

65. [79]

    Although St George Bank was subpoenaed by Angelo to produce records, no documents were produced evidencing that Silvana signed any documents at the St George branch as deposed to by Angelo.

66. [80]

    In evidence in chief on day one of the hearing Angelo tendered what were described as transaction customer receipts in relation to the transactions carried out on 10 May 2022. Angelo had written “gift” on each of the receipts. In cross examination, Angelo gave inconsistent answers as to when he wrote “gift” on the documents. Further, no explanation was provided by Angelo as to why these documents were not included in his affidavit evidence.

67. [81]

    A number of issues are raised by this version of events given by Angelo, to which of course Silvana is no longer able to respond. On Angelo’s evidence, there was no discussion with Silvana prior to May 2022 about gifting money to Angelo. Yet it is clear that Silvana was contemplating it as at 19 April 2022 when she spoke to Mr Previte, either before or after going to the St George Bank with Angelo to open her new bank account. I find it most unlikely that Silvana would not have told Angelo of her intention to gift him money. The contemporaneous overall circumstances, particularly the opening of the new bank account to which Milvia and Melissa would not have access, point strongly to Angelo having knowledge of, and being heavily involved in, the gifting of money to him.

68. [82]

    Silvana’s note was not prepared until 19 May 2022 (as set out below) some nine days after the transfer of the money. No explanation was provided by Angelo as to the timing of the note after the money was transferred.

69. [83]

    The note also makes no mention of the $975,000 being immediately given to Angelo. It rather speaks of the money being left to Angelo on Silvana’s death. The May 2022 conversation deposed to by Angelo (set out above) refers to the money being transferred now to Angelo for him to pay to Scalabrini. These possible inconsistencies were not explored in cross examination.

70. [84]

    Turning to the reasons apparently given by Silvana, it is not clear what support Angelo had provided to Luciano as he had already been admitted to hospital by the time Angelo came to Sydney in July 2021 to look for work and live at the Five Dock House, Luciano never returned home. As at May 2022, Angelo had been back in Sydney for less than a year. Angelo had not been his parents’ primary carer before this time, Milvia having performed this role for many years. For more than half the time Angelo had been in Sydney, Silvana was in full time residential care at Scalabrini.

71. [85]

    Neither Luciano or Silvana ever showered any of their children with monetary gifts of any size, let alone exceeding $1.1 million.

72. [86]

    Having received the $975,000 which was earmarked for the RAD, Angelo then corresponded with Scalabrini by email asking to have the $975,000 refunded to him. The email exchange was as set out below.

73. [87]

    On 11 May 2022, Angelo emailed Mr Previte forwarding him the email chain with Scalabrini asking Mr Previte if he (Angelo) could ask Scalabrini to simply write a new Accommodation Agreement in his name? Mr Previte’s response was that that was a matter for Scalabrini.

74. [88]

    Shortly after this, it was decided that a loan agreement would be entered into between Angelo and Silvana. Angelo retained separate lawyers to prepare the agreement, having previously asked Mr Previte to do it.

75. [89]

    On 12 May 2022, Melissa had a conversation with Silvana in which Silvana indicated she wanted to gift some money to Melissa’s children. She gave $10,000 to each and the money transfers were carried out by Angelo. The conversation included:

76. [90]

    On 13 May 2022 Silvana had several telephone calls with Mr Previte. Mr Previte’s file note of the first discussion reads as follows:

77. [91]

    The file note of the second conversation with Silvana reads as follows:

78. [92]

    Mr Previte agreed that around this time he had a discussion with Angelo where he suggested that Angelo could enter into a loan agreement with his mother. Mr Previte also sought clarification from Silvana as to whose money it was – whether it was Angelo’s – and was told by Silvana – as recorded in the last file note – that Angelo has the money. At one stage there was talk about a codicil to Silvana’s will but this did not proceed, because as far as Mr Previte was aware, it was Angelo’s money.

79. [93]

    Mr Previte agreed that Silvana did not need to enter into the Loan Agreement as she had enough money from the sale of the Five Dock House to pay the RAD. Mr Previte did not turn his mind to discussing this with Silvana and telling her that it was imprudent to enter into such a loan at this stage in her life.

80. [94]

    Mr Previte also did not think that Silvana was altering her testamentary intentions by entering into the Loan Agreement because he thought the money being loaned was Angelo’s.

81. [95]

    Milvia was obviously concerned at this time about Angelo’s influence over Silvana because she emailed Mr Previte on 14 May 2022 bringing certain matters to Mr Previte’s attention. The email included:

82. [96]

    On 16 May 2022, Melissa had a conversation with Silvana to the following effect:

83. [97]

    On 19 May 2022, Silvana apparently prepared a handwritten note, in Italian in relation to the $975,000 provided to Angelo. The English translation of the note is as follows:

84. [98]

    Angelo admitted that he was present with his mother when she prepared this note.

85. [99]

    On 31 May 2022, Mr Previte sent an email to Milvia in response to her email of 14 May 2022 advising Milvia that he was seeking instructions and would revert when he received them. By letter dated 31 May 2022 Mr Previte wrote to Silvana attaching a copy of Milvia’s email of 14 May 2022 and asking Silvana to advise how she wished for Mr Previte to reply. Communications in writing between Mr Previte and Silvana thereafter took the form of letters from Mr Previte to Silvana rather than emails to Angelo’s email address as had previously occurred.

86. [100]

    A draft of the Loan Agreement was provided by Angelo’s lawyers to Mr Previte (acting for Silvana) on 1 June 2022.

87. [101]

    On Sunday 5 June 2022, Mr Previte met with Silvana at Scalabrini to discuss Milvia’s email to him and the draft Loan Agreement. Mr Previte’s file note records that on the first issue, Silvana instructed Mr Previte to respond to Milvia to the effect that her will be opened on her passing and not to canvass other matters (Mr Previte emailed Milvia on 8 June 2022 telling her this). Mr Previte explained the draft of the Loan Agreement to Silvana and she instructed him that the loan was not to be called upon before her passing and Angelo was to pay his own legals. Otherwise she was happy with the document. Mr Previte did not agree that there was a prospect that he did not explain the Loan Agreement to Silvana. He had an actual recollection of doing so.

88. [102]

    On or about 7 June 2022, Silvana was admitted to hospital. Apparently Angelo did not tell Milvia this had occurred. Silvana presented with Angelo, suffering from shortness of breath. The progress notes record that Angelo explained that current stress on Silvana relates to a family situation. Angelo admitted that he, on this occasion, explained the situation to the doctor.

89. [103]

    Angelo paid $975,000 as the RAD to Scalabrini on 8 June 2022.

90. [104]

    On 12 June 2022, Mr Previte again attended Scalabrini and arranged for Silvana to execute an amended version of the Loan Agreement. Mr Previte had arranged for the two points raised by Silvana to be included in the revised draft. He explained the changes to Silvana. The executed Loan Agreement was subsequently exchanged on 16 June 2022.

91. [105]

    On 14 June 2022 Angelo says that Silvana asked him to go to the bank and transfer $10,000 to each of Melissa’s two children as “a gift from Nonna”. Angelo’s affidavit evidence was that Silvana had accompanied him to the bank to carry out this transaction, although he corrected this in evidence-in-chief, to clarify that he performed these transactions alone, on behalf of Silvana.

92. [106]

    In the early evening on 30 June 2022, Silvana received a visitor at Scalabrini known as “Marcia”. Apparently the visitor was unannounced and caused some concern for Silvana as she was already dressed for bed. Angelo apparently became concerned about this and wrote to Mr Richard de Haast (Mr de Haast), the CEO of Scalabrini. His email dated 1 July 2022 included the following:

93. [107]

    The internal email sent on 1 July 2022 by Kerry Livas stated:

94. [108]

    On 2 July 2022, Mr de Haast sent his own internal email as follows:

95. [109]

    Angelo forwarded his email correspondence with Scalabrini to Mr Previte on 4 July 2022. He also updated Mr Previte in relation to the assault charges against Milvia. Angelo gave evidence that he gave this update as Mr Previte had asked to be kept informed of what the proceedings were. As to the non-compliance with the protocol at Scalabrini, Angelo was simply passing on his mother’s complaint to her lawyer, suggesting that this was Silvana’s legal advice and not advice for Angelo.

96. [110]

    In evidence in chief, Angelo suggested that the internal Scalabrini emails referred to above were wrong insofar as they suggested Angelo was the person controlling who could visit his mother – he suggested he was simply passing on his mother’s concerns. When confronted with his own emails to Scalabrini, Angelo was still reluctant to admit his own involvement. He was quite unwilling to accept he was the one controlling the situation. I do not accept this evidence. The emails demonstrate his considerable involvement and control.

97. [111]

    On 4 July 2022, Milvia made a complaint about Angelo to the Aging and Disability Commission. No action was taken in response.

98. [112]

    As at July 2022, Mr Previte agreed that Silvana’s health was deteriorating. He was also aware that the disputes within the family were continuing.

99. [113]

    On 18 July 2022, Angelo wrote to Mr Previte as follows:

100. [114]

     In cross-examination, Mr Previte gave evidence, by reference to a file note he prepared dated 18 July 2022, that in relation to Angelo’s email requesting a monthly payment, he advised Silvana that he considered it excessive and did not see any reason in her situation for her to pay $2,000 to her son to assist her. In the file note, Mr Previte confirmed that Silvana had suggested it to Angelo, and after their discussion, Angelo had decided not to proceed with the idea. Later on 18 July 2022, Mr Previte noted that he rang Angelo and said that he had refused to take instructions from her in such a matter.

101. [115]

     Angelo’s evidence was to the effect that Silvana had raised the issue and he was considering it but that it went no further having regard to Mr Previte’s advice.

102. [116]

     On 29 July 2022, Angelo withdrew $5,000 from Silvana’s account and transferred it to a joint account he maintained with his wife, Yuka. According to Angelo, this was a gift to Yuka as a gesture of appreciation from Silvana for the time and efforts Yuka made assisting to clean and clear the house and for travel costs. Yuka did not give evidence to explain what she did and no further detail was provided by Angelo as to the actual work done so as to justify the payment.

103. [117]

     On 8 August 2022, Silvana rang Mr Previte and told him that she wanted to change her power of attorney so that Angelo was now to be her sole attorney. The reason given by Silvana for removing Melissa as attorney was because Melissa had not rung her. Melissa’s children had not rung Silvana to thank her for her gifts to them.

104. [118]

     On 30 August 2022, Silvana had a palliative care consultation with representatives of the Aged Care Team at the Sydney Local Health District. Angelo was telephoned during the consultation. The notes record that:

105. [119]

     The notes also record that Silvana “does not want to commence more medications” and “prefer end of life care at Scalabrini”.

106. [120]

     In September 2022, Silvana transferred her car, a Toyota Corolla, into Angelo’s name.

107. [121]

     On 6 September 2022, Silvana made a new will. The only substantive change from her previous will was to appoint Angelo the sole executor. A new Enduring Power of Attorney was also executed by Silvana on 6 September 2022, this time only in favour of Angelo and effective on acceptance, not only if Silvana ceases to be able to arrange her own affairs. Angelo accepted the appointment as Attorney.

108. [122]

     On 13 September 2022, Silvana presented with Angelo at Concord Hospital. The hospital notes record “Not feeling well lately” and “Drowsiness”. She was offered hospital admission but declined.

109. [123]

     On 20 September 2022, Silvana was admitted to Concord Hospital with lower limb swelling and shortness of breath. She stayed in hospital until 26 September 2022.

110. [124]

     The Discharge Plan records that Silvana “has had disease progression and declining mobility”. She was prescribed morphine by the palliative care doctors, for pain/breathlessness.

111. [125]

     The notes again record that Silvana has an Advanced Care Plan in place at Scalabrini and prefers end of life care at Scalabrini. They also record that Angelo had a phone discussion with Dr Goodwin where they discussed that Silvana would not be fit for further chemotherapy and would be for supportive care only.

112. [126]

     The Scalabrini notes for 27 September 2022 – the day after Silvana was discharged – record that Silvana was not able to stand or walk without assistance.

113. [127]

     It was Angelo’s birthday on or about 28 September 2022. It was not in dispute that prior to this time, none of the children had received substantial birthday presents from their parents. Yet, on 28 September 2022, $40,000 was transferred from Silvana’s account in the following amounts and on Angelo’s evidence, for the following purposes:

114. [128]

     Silvana apparently prepared a handwritten note on 28 September 2022, translated as follows:

115. [129]

     Angelo did not give any evidence as to when Yuka’s birthday was. Yuka did not give evidence. Other evidence suggested her birthday was in March. No evidence was given by Angelo as to why Sophia would be given $10,000 for Angelo’s birthday.

116. [130]

     Silvana’s condition continued to worsen. A Concord Hospital telehealth clinical review with Silvana and Angelo took place on 11 October 2022. The notes record:

117. [131]

     The Scalabrini notes for 18 October 2022 record that Silvana was being assessed for a motorised wheelchair. Further they record:

118. [132]

     On 1 November 2022, Silvana apparently decided she wanted to buy a new car. Again, she apparently prepared a handwritten note, translated as follows:

119. [133]

     A vehicle was chosen – a small SUV, Cupra Formentor in Asphalt Blue. The cost of the vehicle was $71,155 and $73,000 was withdrawn from Silvana’s account.

120. [134]

     The car was not available for immediate delivery. It was in fact not delivered until 21 December 2024 - a few days before Silvana died. As Silvana’s note records was her wish. Whilst it was apparently a car for Silvana, the car was put in Angelo’s name. He now uses it in Brisbane as part of his work as an Uber driver.

121. [135]

     Angelo’s evidence-in-chief was that Silvana decided to buy a new car that was more comfortable for her to get into and out of. In cross-examination he agreed that the car purchased was a high performance vehicle. In re-examination, Angelo doubled down on it being his mother’s decision to buy a new car for her and that she chose the car. He said:

122. [136]

     I have real difficulty in accepting this evidence. The objective evidence – principally the Concord Hospital and Scalabrini notes – suggest that by early November 2022, Silvana was receiving end of life care at Scalabrini, essentially bed bound and on continuous oxygen. She was not likely to “pop herself” into this vehicle or indeed any motor vehicle.

123. [137]

     The Concord Hospital notes for 18 November 2022 record that Silvana was bed bound and on oxygen 24 hours.

124. [138]

     On 9 December 2022, further funds were withdrawn from Silvana’s account by Angelo, apparently at the request of Silvana – $5,000 to Sophia and $10,000 to Yuka. The $10,000 was deposited into a joint account of Angelo and Yuka. No handwritten note was prepared for these transactions.

125. [139]

     On 14 December 2022, Silvana was admitted to Royal Prince Alfred Hospital for palliative care.

126. [140]

     On 21 December 2022, whilst Silvana was in Royal Prince Alfred Hospital she spoke on the telephone to Melissa, in the presence of Angelo and they had a conversation which Angelo contends was as follows (translated):

127. [141]

     Melissa had a slightly different recollection of the conversation, as follows:

128. [142]

     It is not necessary to resolve the differences between these two versions.

129. [143]

     Silvana passed away on 24 December 2022 at Royal Prince Alfred Hospital.

130. [144]

     On 9 May 2023, a grant of probate was issued to Angelo. The gross value of the estate was $3,818,045, with the only liability being $975,000 owed to Angelo. It was not until the probate application was filed that Milvia and Melissa became aware of the loan from Angelo to Silvana for $975,000.

131. [145]

     On 6 June 2023, Scalabrini refunded the RAD plus interest by way of a cheque payable to the estate. It was deposited into the estate bank account.

132. [146]

     On 3 July 2023, Angelo paid himself $975,000 from the estate bank account. This was subsequently repaid on 1 December 2023 after proceedings were commenced and on the plaintiffs’ undertaking as to damages.

Overview of the evidence

1. [147]

   At a general level the evidence discloses that:

Relevant Principles

1. [148]

   The principal case advanced by the plaintiffs to recover the monies paid from Silvana’s account was that each transaction was procured by unconscionable conduct on the part of Angelo.

2. [149]

   In Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [38], Kiefel CJ, Bell, Gageler, Keane and Edelman JJ stated (citations omitted):

3. [150]

   In Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 (Amadio) at 474, Deane J noted:

4. [151]

   In Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 at [16] the High Court unanimously said that the conscience spoken of here is a construct of values and standards against which the conduct of “suitors” – not only defendants – is to be judged.

5. [152]

   In Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 at 118-119, Dixon CJ, McTiernan and Kitto JJ said that the application of the equitable principles relating to unconscionable conduct:

6. [153]

   Further, the absence of immoral or dishonest motives is not sufficient to preclude equitable intervention. Nor is it necessary to establish that the defendant actively sought to procure the assent of the other party: see Wu v Ling [2016] NSWCA 322 at [8] per Leeming JA.

7. [154]

   Four criteria are generally required to be satisfied:

8. [155]

   In Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 at [39], Kiefel CJ, Keane and Gleeson JJ emphasised that these considerations should not be understood separately as if they were elements of a cause of action in tort.

9. [156]

   In Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162, Ward P stated at [147]:

10. [157]

    It is not necessary to show that the stronger party has acted dishonestly: Hanna v Raoul [2018] NSWCA 201 at [97] per Beazley P. Rather, what must be shown is that the ascendant party either had actual knowledge of, or knew of the facts which are such as to raise in the mind of any reasonable person a very real question as to the weaker party’s ability to make a judgment as to what is in his or her best interests: see Amadio at 413 per Mason J.

11. [158]

    In Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 (Louth v Diprose), Brennan J stated at 631:

12. [159]

    In relation to the Loan Agreement entered into in April 2022, the plaintiffs also contend, assuming the agreement was supported by consideration, that the Loan Agreement was an unjust contract within the meaning of the Act.

13. [160]

    Section 7 of the Act relevantly provides:

14. [161]

    The expression “unjust” is defined in section 4 of that Act to include “unconscionable, harsh or oppressive”.

15. [162]

    Section 9(1) of the Act provides:

16. [163]

    Section 9(2) of the Act sets out a list of matters to which the Court shall have regard to the extent that they are relevant to the circumstances. Of particular relevance here are:

17. [164]

    There is obviously a deal of overlap between unconscionable conduct and a claim that a contract is unjust.

18. [165]

    In Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 at [7], Allsop P stated:

19. [166]

    The breach of fiduciary case only concerned the payments after Angelo had accepted the Enduring Power of Attorney on 6 September 2022. Having accepted the Power of Attorney, it was contended that Angelo was subject to the usual fiduciary duties, including not to obtain any unauthorised benefit from the fiduciary relationship and not to be in a position of conflict. It is of course clear that fully informed consent is a defence to any such breach.

Determination

1. [167]

   I proceed to deal first with the claim that each of the transactions were the product of unconscionable conduct on the part of Angelo. Although engaged in at different times on and from 10 May 2022, each of the transactions can largely be considered together as they have a number of common features, even the smallest of the gifts was substantial in light of the prior relationship between Silvana and her children.

2. [168]

   I have set out above the relevant elements that need to be satisfied. In simple terms:

3. [169]

   Dealing first with the issue of special disability, it was not in dispute that during the relevant period, Silvana still had capacity to manage her own affairs. It does not follow, however, that Silvana could not be under a special disadvantage in the relevant sense. As Meagher and Payne JJA said at [3] in Mentink v Olsen [2020] NSWCA 182, such a disadvantage may be situational or relational, have been created or exacerbated by an absence of advice or explanation, and may co-exist with a “full understanding” of the transaction. Further, as Mason J explained in Amadio at 461, in cases of unconscionability “the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position”.

4. [170]

   I am comfortably satisfied that at all material times on and from 10 May 2022, Silvana was under a special disadvantage vis-a-vis Angelo in the relevant sense of one which seriously affected the ability of Silvana to make a judgment as to her own best interests.

5. [171]

   I have set out above the relevant factual matters. To recap, as at May 2022, Silvana was 82 years of age and in extremely poor health. In December 2021, she was diagnosed with Stage 4 breast cancer which had metastasised to various parts of her body. She had undergone chemotherapy and radiotherapy treatment. She was a full time resident at Scalabrini. She was grieving the recent loss of her husband of 62 years, Luciano. She no longer had as regular access to her daughters, Melissa and, to a greater extent, Milvia, because they were not vaccinated and as such were not allowed to enter Scalabrini. In the latter part of 2021, Angelo had commenced living with Silvana and remained living with her until she went to Scalabrini for respite care in December 2021. During this period, Angelo spent very considerable time with his mother and began to ingratiate himself to her, to the exclusion of his sisters, particularly Milvia.

6. [172]

   Of perhaps greatest relevance, however, was the family tension that then existed between Angelo and Milvia which appears to have been the product of Angelo returning to live with his parents at the Five Dock House in July 2021, Milvia (her parents’ previous carer) resenting what Angelo was doing and becoming increasingly concerned as to his influence over Silvana. This family tension was causing Silvana great stress and anxiety.

7. [173]

   Angelo was no doubt his mother’s primary source of information in relation to that family tension. As such, it substantially adversely changed the relationship between Silvana and Milvia.

8. [174]

   It is not necessary for me to attribute blame in relation to this family tension – it is the fact that it existed at the time that was a significant contributor to Silvana’s vulnerability.

9. [175]

   It was not in dispute that Silvana was not a person sophisticated in legal and business matters. As at May 2022 she placed absolute trust and confidence in Angelo as the family member with whom she had primary contact at the time. He was the person taking her to all medical appointments and, where necessary, all legal appointments. His email address was being used for a period as the primary means of communication between Mr Previte and Silvana. Angelo was his mother’s prime, if not sole source of information.

10. [176]

    There was no dispute that Angelo was at all relevant times aware of his mother’s condition and her reliance on him.

11. [177]

    Angelo’s increasing influence over his mother during this period seems quite clear on the objective material:

12. [178]

    After May 2022, as Silvana's health continued to deteriorate, her dependence on him, and consequent vulnerability, increased.

13. [179]

    As Silvana’s health continued to decline after the 10 May 2022 transactions, and the family tension continued with Angelo as his mother’s primary carer and source of information, the whole situation exacerbated by Milvia and Melissa not being able to visit their mother because they were not vaccinated, Angelo’s influence over his mother continued. In September 2022, Angelo was made Silvana’s sole attorney with immediate effect. In light of the situation, Silvana no doubt felt a sense of gratitude towards Angelo and continued to shower him with gifts – the most significant after the 10 May 2022 gifts being the new car bought in early November 2022 and delivered three days before Silvana died.

14. [180]

    Angelo was acutely aware, at all times on and from 10 May 2022 of Silvana’s vulnerability and the special disadvantage from which she was suffering. He was her primary carer, acutely aware of her declining health. He was acutely aware of the family tension and had no difficulty telling all and sundry about it – in particular Silvana, thus adding to her stress and anxiety. Angelo accepted that his mother was dependant on him.

15. [181]

    Each of the subject transactions was improvident. The 10 May 2022 transactions involved Silvana giving away a little less than a third of her total wealth. The $975,000 given to Angelo and then loaned back to Silvana makes no real sense. Silvana could readily afford to pay the RAD out of her own funds. The $200,000 gift, on Angelo’s 2023 email to Mr Previte, appears to have been intended as a payment by Silvana to Angelo to keep him looking after her. Yet, at the time, she was in rapidly declining health in full time care at Scalabrini.

16. [182]

    The $73,000 gift to Angelo for the purchase of the new car in early November 2022 makes very little sense given Silvana’s situation at the time. The evidence given by Angelo that the car was chosen by Silvana with her own interests in mind, is quite concerning and demonstrates the improvidence of the transaction.

17. [183]

    The remaining ad hoc gifts were also quite out of character for Silvana.

18. [184]

    I do not regard the fact that it was not suggested that Silvana had lost capacity and signed various documents in 2022 – including the Scalabrini Residential Agreement, the agreements to sell her house, the Loan Agreement and the estate documents prepared by Mr Previte, as overly significant. As set out above, unconscionable conduct can co-exist with a full understanding of the relevant transactions. The question is whether Silvana’s will, even if independent and voluntary, is the result of the disadvantageous position in which she is placed and of Angelo unconscientiously taking advantage of that position.

19. [185]

    I also do not regard the fact that Silvana prepared handwritten notes seeking to set out her reasons for the gifts as being overly significant. It seems quite obvious on a cursory review of each of the handwritten notes that the handwriting is quite different in each of them and, in the case of the $975,000 in the 19 May 2022 handwritten note appears to be different to the other handwriting in that very same note. No expert evidence was adduced to suggest that the notes, or some or parts of them, were forgeries and thus I proceed on the basis that they were written by Silvana on the dates they bear. The relevant issue is whether the transactions are the product of Angelo’s taking advantage of the special disadvantage which Silvana was then under.

20. [186]

    The role played by Mr Previte – particularly in relation to the Loan Agreement – is largely neutral on the issue of unconscionable conduct. The fact that he explained the transaction to Silvana and she understood them is not inconsistent with the transaction being the result of unconscionable conduct.

21. [187]

    Mr Previte is not to be criticised for failing to advise Silvana as to the improvidence of the Loan Agreement. As far as Mr Previte was aware, based on what he was told by Silvana, Angelo had the money. It was Angelo’s money otherwise being lent interest free to Silvana. The fact is that Silvana was not advised as to the prudence of gifting the money to Angelo and then loaning it back from him. This lack of advice is of significance in the overall assessment.

22. [188]

    In his oral evidence, Angelo sought to explain each of the transactions as his mother wanting to give with a “warm hand”, which I understood to be a reference to Silvana making gifts whilst she was alive rather than upon her passing. Such an explanation does not deal with the relevant legal issues – namely whether the transactions were the product of Angelo taking advantage of a special disability which his mother was then acting under. Nor does it provide a factual response – given the circumstances one would have expected Silvana’s warm hand to have given equally to each of Milvia, Melissa and Angelo – not to have substantially preferred Angelo.

23. [189]

    The short point is that I am satisfied that the transactions were the product of Angelo taking advantage of the special disability which Silvana was acting under during the relevant period. The observations of Brennan J in Louth v Diprose that I have set out above are apposite.

24. [190]

    I am satisfied, in all the circumstances, that Angelo’s procurement of each of the gifts, and retention of them was unconscionable. Whatever his intentions, Angelo was taking advantage of his mother’s vulnerability and dependence on him brought about principally by her declining health and ongoing family tension between Angelo and his sisters. Angelo procured and was content to retain very substantial gifts from his mother, all without any knowledge on the part of Milvia and Melissa and contrary to the long standing testamentary intention of Silvana that all of her children would each receive one third of her estate. This was clearly against good conscience and equity.

25. [191]

    I am not satisfied that any of the transactions was fair, just and reasonable. No real attempt was made by Angelo to prove that they were. None can seriously be justified on the basis that Angelo was his mother’s carer. Angelo only assumed this position when he came to live with his mother in July 2021 looking for work. He lived at the Five Dock House rent free until it was sold in May 2022. From December 2021, Silvana was in full time care at Scalabrini, although Angelo continued to take her to medical and legal appointments in 2022 and for a period was the source of email communications for his mother with Mr Previte.

26. [192]

    I am satisfied that each of the Impugned Transactions was the product of unconscionable conduct by Angelo and each should be repaid by him to Silvana’s estate.

27. [193]

    In light of my conclusion above in relation to unconscionable conduct, it is not necessary for me to determine this claim. Against the possibility that I am wrong in relation to unconscionable conduct, I make the following observations.

28. [194]

    This claim obviously relates only to the Loan Agreement. It relies on substantially the same matters as the unconscionable conduct claim. For the reasons set out above in relation to the unconscionable conduct claim, I am satisfied that, if the Act applies to the Loan Agreement (see below), then the Loan Agreement is an unjust contract under the Act.

29. [195]

    Two further issues – which are necessarily antecedent to whether the Loan Agreement is unjust under the Act – were agitated at the hearing.

30. [196]

    The first was whether Milvia and Melissa as plaintiffs had standing to seek the relief they did in circumstances where they were not parties to the Loan Agreement. Counsel for the plaintiffs contended that they did have standing, placing reliance on a decision of Richmond J in Rydzewski v Rydzewski [2024] NSWSC 802 (Rydzewski) at [317] – [323].

31. [197]

    In Rydzewski, Richmond J did not need to consider the operation of the Act because he upheld the claims of unconscionable conduct and undue influence (see [323]). I do not read anything said by his Honour as directly supporting the proposition that a non-party to a contract has standing to contend that the contract is unjust.

32. [198]

    In any event, I do not need to consider the point any further in circumstances where it did not appear to be in dispute that this would be an appropriate case to appoint Milvia and Melisa under UCPR r 7.10 to represent Silvana’s estate for the purposes of the claim under the Act. The claim is rightly one for Silvana’s estate to make. It is not appropriate for Angelo, as executor, to represent the estate as he is the subject of the claim. Milvia and Melissa are the other two beneficiaries of Silvana’s estate.

33. [199]

    Had it been necessary, I would have made an order that Milvia and Melissa represent Silvana’s estate for the purposes of making the claim under the Act.

34. [200]

    The second issue agitated was whether the Loan Agreement was in fact enforceable because the only consideration contained within it was past consideration.

35. [201]

    Very little attention was given to this point in submissions either written or oral.

36. [202]

    Executed Loan Agreements were exchanged on 16 June 2022. The RAD of $975,000 was paid by Angelo to Scalabrini on 8 June 2022. At this time, it would appear that the Loan Agreement was not even agreed. Mr Previte attended on Silvana on 12 June 2022, explained the revised draft of the Loan Agreement to her and had her sign it. In any event it appears that the parties regarded the exchange of executed Loan Agreements as important and this did not occur until 16 June 2022.

37. [203]

    In these circumstances, the only consideration supporting the Loan Agreement appears to be past consideration, which is no consideration at all.

38. [204]

    Thus, had it been necessary to decide the point, I would have held that the Loan Agreement was not enforceable and therefore no question of operation of the Act arises.

39. [205]

    Again, it is not strictly necessary to consider these claims in light of my conclusions in relation to the unconscionable conduct. Lest I be wrong about those matters, I deal with the claimed breaches of fiduciary duty briefly below.

40. [206]

    This claim was ultimately only pressed in relation to the transactions engaged in after the Enduring Power of Attorney was accepted by Angelo on 6 September 2022.

41. [207]

    It is clear that the Enduring Power of Attorney did not permit Angelo to confer benefits on himself. It is clear that the relationship of principal and attorney under power is a recognised class of fiduciary relationship: see Hospital Products v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 at 68 (Gibbs CJ); Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 at 427 [115] per Leeming JA (Bathurst CJ agreeing), and that a fiduciary relationship imposes upon a fiduciary, obligations to the principal not to obtain any unauthorised benefit from the fiduciary relationship: among many authorities see Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 at [31] per French CJ and Keane J.

42. [208]

    The transactions covered by the claim of breach of fiduciary duty are the payments totalling $30,000 on 28 September 2022, the $73,000 withdrawn on or about 4 November 2022 to purchase the new car, and the $10,000 withdrawn from the St George account on 9 December 2022 and given to Angelo’s wife, Yuka.

43. [209]

    Counsel for Angelo accepted that it would be open for the Court to conclude that each of the transactions engaged in after the September power of attorney involved Angelo unwittingly breaching his fiduciary duties. Although no formal defence of consent was pleaded, Angelo contended that the handwritten notes prepared by Silvana amounted to her consenting to Angelo receiving the benefits.

44. [210]

    No pleading point was taken by the plaintiffs that it was not open to Angelo to raise consent.

45. [211]

    As set out above, I proceed on the basis that each of the notes was prepared by Silvana and there is no contention advanced that she did not have capacity.

46. [212]

    In relation to the payments on 28 September 2022, I am satisfied based on the note in Silvana’s hand that she consented to the benefits.

47. [213]

    In relation to the motor vehicle, I am not satisfied that Silvana’s note amounts to consent to Angelo receiving a benefit in the sense of ownership of the vehicle for his own use even on Silvana’s passing.

48. [214]

    The note simply refers to a vehicle being purchased for Silvana’s use, being her car, although in the name of Angelo. It says nothing to the effect that Angelo was to receive the vehicle absolutely, either on delivery of the vehicle or on Silvana’s passing.

49. [215]

    Angelo’s counsel accepted that if the Court reached this conclusion, the correct legal conclusion was that Angelo held the car on trust for Silvana’s estate. The simpler legal solution, in light of my conclusions in relation to unconscionable conduct is that Angelo refund the $73,000 withdrawn from Silvana’s account. He can keep the vehicle.

50. [216]

    There is no note in relation to the $10,000 transferred on 9 December 2022, ostensibly as a gift to Angelo’s wife, but transferred to a joint account maintained by Angelo and his wife from which he benefited. There is thus no evidence of consent.

51. [217]

    Had it been necessary for me to decide, I would have held that, save for the payments on 28 September 2022, each of the Impugned Transactions engaged in after 6 September 2022 conferred a benefit on Angelo in breach of the fiduciary duties he owed.

Conclusion and orders

1. [218]

   For the reasons set out above, the claims made by the plaintiffs should be upheld and $1,293,000 plus interest repaid by Angelo to Silvana’s estate. My preliminary view is that Angelo should pay the costs of the proceedings but I will hear the parties in writing if need be.

2. [219]

   I will give the parties an opportunity to agree final orders consistent with these reasons, including as to interest and costs. Any remaining disputed issues will be determined on the papers.

3. [220]

   The Court orders that:

   1. (1)

      Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs.

   2. (2)

      Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 3 March 2025.

   3. (3)

      In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 3 March 2025 any submissions and supporting material, such submissions not to exceed 3 pages.

   4. (4)

      Direct the parties to provide to my Associate by no later than 5pm on 10 March 2025 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers.