Toppi v Toppi (No 3)

The plaintiff, Paola Toppi, seeks provision under s 59 of the Succession Act 2006 (NSW) (the Act) from the estate of her late mother, Giovanna 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:

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.

Giovanna was born in 1936 in Naples, Italy, immigrated to Australia in or about 1956 and died on 3 November 2021. Giovanna was widowed at her death. Her late husband, Walter Toppi (Walter Senior) was born in Italy in 1927, immigrated to Australia separately and earlier than Giovanna, and died on 6 December 1986. Giovanna is survived by three adult children from her marriage to Walter Senior, being:

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:

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):

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:

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):

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:

I do not accept Walter’s attempts to distance himself from a message he obviously sent (as he finally accepted), as demonstrated in the following exchange (T139–140):

Walter’s anger at Paola’s treatment of Giovanna was captured in the following exchange (T120):

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:

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:

The 2017 Will:

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:

The 2018 Will:

The January 2019 Will:

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:

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):

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:

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:

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]; Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [22].

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: Toppi 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.

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 premises) 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.

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:

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):

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:

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:

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.

By way of example, the 2018 Will includes the following:

While these matters are relevant background and provide useful insight into the dynamics of the Toppi family, they have no real bearing on the central question I am required to determine of whether adequate provision has been made for Paola in the 2020 Will.

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 property).

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.

Walter gave evidence that, shortly before the opening of “Sciue Sciue Ristorante Italiano” in 2013 (addressed in more detail below), Paola opened a chicken shop known as “Polleria”, which operated from Shop One of the Macleay Street property. Walter says the business failed shortly after and recalls a conversation with Giovanna around the time of its closure during which his mother said words to the following effect:

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 premises) 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.

The unit holders in the Bar Machiavelli Unit Trust were:

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 parties.

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 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:

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 27 September 2018, Bar M Pty Ltd was incorporated with Paola as sole director and shareholder.

In October 2018:

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”.

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:

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’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):

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:

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:

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.

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:

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 two items of correspondence relied upon and annexed to the Paola’s affidavit of 25 February 2025 were:

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”.

To the extent that Paola was successful in the application to reopen her case, the material admitted into evidence can be summarised as follows:

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:

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).

Giovanna appears to have gambled large amounts of money regularly for enjoyment and entertainment. This distraction became more significant in or around 2015 when Giovanna commenced haemodialysis treatment as her working hours decreased and her mobility diminished. Walter gave evidence that, during this period, Giovanna would occasionally spend eight to ten hours at the casino in a single session. As Walter admitted in his own way (T138):

Giovanna’s gambling habits were well-documented in the evidence, including the following accounts:

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:

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 WFM Motors.

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:

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:

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).

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 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 property). 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:

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:

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.

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.

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:

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):

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):

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 account).

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.

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:

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:

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:

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.

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).

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):

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 AMP 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):

It is clear from this exchange that what was contemplated by Mr Beazley was a net benefit to Paola of some $600,000, being the $750,000 less payment of Paola’s legal fees (which were then estimated to be $146,000) from that amount. It is apparent that any concession by Paola as to the costs of these proceedings was contingent upon Paola receiving a release from her liability in contribution as co-guarantor of the WFM Loan, “forgiveness” of the extant costs orders made by Pike J, and a payment from the estate to Paola of $750,000.

In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, Clarke JA (with whom Mahoney and Meagher JJA agreed) stated at 478 that:

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):

In Goodman Fielder, Henry J at [47] set out the following oft-cited list of factors that will be relevant to consider on an application to reopen to adduce further evidence and which bear on the overriding question, being where the interests of the justice lie in the circumstances of the case (references omitted):

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:

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:

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).

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].

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:

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.

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.

That is sufficient to deal with the application to reopen. To the extent that Paola’s application was successful in respect of truly fresh evidence, that evidence was admitted, and I have dealt with those matters within this judgment. The application was otherwise dismissed, and I ordered Paola to pay the costs of Walter in respect of it, including with respect to the hearings on 5 March 2025 and 16 April 2025, to be payable forthwith. Liberty was reserved for Walter to apply for those costs on an indemnity basis, or on the basis of a special costs order which was foreshadowed by Walter at the hearing of the motion on 5 March 2025.

Section 58 of the Act stipulates when an application for a family provision order may be made, providing that:

Certain policy reasons and considerations underlie both the time constraint and the “sufficient cause” exception prescribed by s 58(2) of the Act. These include the need to ensure that applications for family provision do not unduly interfere with the prompt administration of deceased estates, reflected in the assessment by 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”, particularly since eligible persons will, in the vast majority of cases, be on notice of the testator’s death and the provision (or lack thereof) made for them: Madden-Smith v Madden [2012] NSWSC 146, Pembroke J at [24]. In Madden-Smith, Pembroke J observed at [23]–[24] that:

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 expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: Moore v Randall [2012] NSWSC 184, White J at [39]; Underwood v Gaudron [2014] NSWSC 1055, Hallen J at [119]. In Underwood, 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 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]:

As indicated by Meagher JA in the Verzar appeal decision at [33]–[35], the relevance of the strength of the applicant’s case for the making of a family provision order to the question of sufficient cause to extend time for the bringing of the application is twofold. The first aspect is whether the application as made and as at the time it is, or is likely to be, heard has sufficient prospects of success to justify an extension. The second aspect is whether allowing the family provision application to be brought out of time would or may have the effect of improving the applicant’s position compared to that which they would have occupied had the application been brought within the statutory limitation period. In this connection, in the Verzar appeal decision at [35], Meagher JA noted:

In considering whether there has been a sufficient explanation for the delay in bringing an application for provision, a mere change of mind on the part of a plaintiff who had decided not to bring an application and then does so, will not ordinarily constitute sufficient cause for granting an extension of time: Henry v Hancock [2016] NSWSC 71, Brereton J at [47].

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 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 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:

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.

Section 59 of the Act relevantly provides:

Section 60(2) of the Act contains a list of factors to which the court may have regard for the purpose of determining the eligibility of an applicant for family provision and whether and in what form a family provision order should be made. Those matters are:

In Bassett v Bassett [2021] NSWCA 320, the New South Wales Court of Appeal summarised the enquiry the court must undertake pursuant to ss 59(1)(c) and 60(2) of the Act, with Bell P, Leeming and Payne JJA stating at [78]–[81] (emphasis in original):

In Baker, Hammerschlag CJ in Eq at [20]–[25] helpfully analysed the provisions of the Act, together with the relevant authorities and legal principles that guide the making of family provision orders, as follows (emphasis in original):

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:

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].

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:

If pertinent facts as to the applicant’s financial position have not been placed before the court, it cannot make the evaluative judgment which s 59(1)(c) requires: Baker, Hammerschlag CJ in Eq at [21]; Cringle v Cringle [2018] NSWSC 1558, Ward CJ in Eq at [35]–[36]; Stone v Stone [2019] NSWSC 233, Hammerschlag J at [62]; DJ Singh, Gleeson JA (with whom Leeming and White JJA agreed) at [284]–[291].

The Act makes no mention of “estrangement” between an applicant and a deceased person. There are no rigid rules as to the consequence of such estrangement and each case will necessarily turn on its facts. As Lindsay J recently remarked in Alexiou v Alexiou [2024] NSWSC 1340, at [95]:

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]:

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:

I am also minded to observe the following from Hampson v Hampson [2010] NSWCA 359, where Campbell JA (with whom Giles JA and Handley AJA agreed) stated at [80] (emphasis in original):

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:

Although I have used the words “estrangement” and “estranged” in this judgment, I do so in accordance with the established principles that it is not a freestanding criterion in the Act. It is simply part of the objective assessment of 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 person’s death in accordance with s 60(2)(a) and (p) of the Act, respectively.

In summary, Paola submits:

In summary, Walter submits:

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:

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 lives with Neil in rented accommodation. Neil appears to have no significant assets and no income. He is of no financial assistance to Paola.

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.

Paola is currently 61 years old, with an expectation of continuing to work as a chef and business proprietor “well into her 70s” but notes the physical limitation of not being able to work as long hours as she once did.

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.

Paola was not being maintained by Giovanna in the years immediately before Giovanna’s death, but during her life Giovanna provided guarantees and loan funds for businesses and rental assistance to Paola for a short period.

I need do no more than repeat the matters I have set out above in relation to the relationship between Giovanna and Paola and the circumstances of their estrangement.

I consider that it is relevant that Walter received just over $800,000 from Giovanna through payments made in the days before her death which he says were authorised by her and which he no longer has because it is likely that he lost that money gambling.

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):

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.

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 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:

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.

In relation to the issue of costs, it is of particular concern to me that the collective costs which have been incurred by both Paola and Walter in these proceedings is an amount exceeding $950,000. Walter alone has spent something in the order of $800,000, and Paola estimated her costs at the time of the 17–19 February hearing to be about $146,000. The amount of costs incurred by both parties in relation to the application to reopen has not yet been disclosed to me, but it is likely to take the total costs to an amount in excess of $1 million. I consider that costs of this magnitude are outrageously disproportionate to the value of Giovanna’s estate.

While it is not a matter for me to determine, given the evidence provided by Walter in these proceedings and my findings in respect of the transactions conducted on Giovanna’s WBC account in her final days, I sincerely hope that Walter will carefully consider the form of distribution of the rest of Giovanna’s estate to him, or that those whom he instructs will advise him accordingly, consistent with their obligation to act in his best interests.

The orders I propose to make are: