Rocco Condello v Sung Soo Kim

The late Diego Condello was a domineering, violent man. He married three times. He had three surviving children with Veneranda, his first wife: Rocco, Angelina and Gina. Rocco and Gina are the plaintiffs in these proceedings. Without disrespect, I shall refer to the parties and other witnesses by their given names.

Diego died on 17 December 2014 aged 87. He left a will dated 31 October 2013 (the “Will”). The defendants are the executors of his estate (the “Estate”): his third wife, Sung, and a long-standing friend, Aldo Vasco. The Estate is conservatively estimated as having a net present value of about $4,000,000 (excluding legal costs).

Diego married Sung in May 2013. Sung was 33 years younger than Diego and, as characterised by Rocco and Gina, the marriage between Sung and Diego was little more than an amoral, commercial arrangement whereby Sung agreed to care for Diego for the rest of his life in return for significant benefits both in life and receiving the greater part of Diego’s Estate under his Will .

The main asset in the Estate is land at Bossley Park. The Will provides for it to be subdivided into eight lots, with five to be transferred to Sung and one each to Rocco, Angelina and Gina (with a value agreed between the parties of about $455,000 each).

Rocco is now wheelchair bound and handicapped by an aggressive form of degenerative rheumatoid arthritis known as Still’s disease. He has a number of other ailments. His case is that Diego made him leave school in Year 10 to work on the family’s market garden (the “Farm”) on the land at Bossley Park. When Rocco wanted to pursue a career as an automotive electrician, he says Diego represented to him (Rocco) in 1977 that if he stayed and worked on the Farm, he would ultimately be left the Farm. Rocco alleges that in reliance on that representation he did not pursue his ambition to be an auto-electrician, but worked on the Farm for nothing. Rocco asserts that Diego later confirmed this representation. Relying on the principles of equitable estoppel by encouragement, Rocco’s case is that he is the beneficial owner of the land at Bossley Park. He also makes a claim for family provision under s 59 of the Succession Act 2006 (NSW) (the “Act”).

Rocco worked on the Farm from 1977 but his ability to do so declined as a result of his illness. In 1979, Rocco first showed the signs of Still’s disease. His level of incapacity increased over the years. By 1994, he was confined to a wheelchair and unable to do any kind of work.

In 1991, the Family Court made consent orders giving effect to a divorce settlement between Diego and Veneranda. Rocco, Angelina and Gina intervened to become parties in the proceedings and appear to have made claims of their own. Part of the consent orders made by the Family Court included an order that Diego “be declared the beneficial owner of the [land at Bossley Park] and each of the other parties acknowledges that he or she does not have any beneficial interest therein”. From 1991 to date Rocco has lived with Veneranda (who at the date of hearing was nearly 81 years old) in a home she owns but which has been modified to meet Rocco’s mobility and other special requirements related to his medical conditions. With very minor exceptions, there was no contact between Diego and any of his children after 1991.

In circumstances where the Court cannot receive evidence from Diego, Rocco’s uncorroborated evidence of Diego’s alleged representation and subsequent confirmation is insufficient to satisfy the Court to the requisite standard that the representations alleged by Rocco were ever made. That conclusion is sufficient to dispose of Rocco’s estoppel claim. However, even if the representations had been made, the Court is satisfied that the Family Court orders referred to in the preceding paragraph bar Rocco’s claim by reason of both an issue estoppel and a conventional estoppel. Finally, if Rocco were otherwise entitled to relief in equity, this is not a case where he would be entitled to a conveyance of the Farm because, through no one’s fault, his illness prevented him from continuing to work. Monetary relief would be awarded.

While Rocco’s equitable claim fails, the Court is satisfied that the Will does not make adequate provision for Rocco. Rocco is entitled to additional provision so that his entitlement from Diego’s Estate should be a total of $1,000,000, with the additional provision to be borne by Sung.

Gina is 44 years old. She lives in a home which she owns with her husband subject to a mortgage. Her two daughters and three stepsons live with them. She submits that she should receive additional provision to enable her to pay off the mortgage over her home and undertake renovations. The Court is not satisfied that Diego’s Will makes inadequate provision for Gina and her claim will be dismissed.

The hearing commenced on 6 February 2017 for three days with a further two appearances being required on 1 and 24 March 2017. Dr C Mantziaris of Counsel appeared for the plaintiffs. Mr S Chapple of Counsel appeared for the defendants. The Court is indebted to counsel for their comprehensive and helpful written and oral submissions in what has proven to be a far from straightforward case.

At the outset of the hearing Dr Mantziaris drew attention to the fact that, by oversight, the plaintiffs had not responded to the affidavit evidence of Angelina or Rinaldo Palumbo. He submitted it would be a denial of procedural fairness not to allow the plaintiffs to put on reply evidence given it went to facts in issue, namely, the nature and extent of the work Rocco performed on the Farm and the representations upon which Rocco sought to rely.

On the first day of hearing, I made an order granting leave to the plaintiffs to adduce limited oral evidence-in-chief from Rocco of the representations upon which he relied, including:

Further affidavits were put on by Rocco, Veneranda and Gina on 25 February 2017 to provide supplementary information on issues raised during the course of the hearing.

An interpreter fluent both in standard Italian and the Calabrese dialect was required for Veneranda’s evidence and to facilitate parts of Rocco’s evidence for the purpose of adducing the limited oral evidence. It became apparent during her evidence that Veneranda’s affidavit had been taken in the Italian language and translated by her solicitor without the assistance of an interpreter, and that it had not been read back to her in English but rather “more in Italian” before it was sworn. This approach, while convenient, is not proper practice. It must be remembered that being bilingual does not make someone qualified to interpret. Even where a solicitor speaks the witness’ language, an independent and qualified interpreter must be retained to translate any affidavit evidence given in a foreign language into the English language. An affidavit must then be obtained from the interpreter verifying the fact of translation and that the English version was translated back to the witness before his or her affidavit was sworn or affirmed.

Two agreements between participants in the proceedings should be noted. These reflect the alliances between the protagonists.

First, a deed was tendered in evidence whereby Gina acknowledged Rocco’s greater entitlement to the Estate based on need and submitted to receiving a transfer from Rocco of a quarter of the value of the Farm should the Court recognise that Rocco was the beneficial owner of the Farm.

Second, there was an arrangement between Sung and Angelina confirmed by a letter in evidence “that the burden of any additional provision awarded to the plaintiffs will be wholly borne by Ms Kim’s share of the estate.” Angelina met Sung for the first time at the initial mediation for these proceedings in about May 2016.

On one of the central issues in this case — the representations alleged by Rocco — there were no contemporaneous or other documents (independent or otherwise) which cast any light on the question. Nor were there any independent witness who said anything on the topic. On the other seriously contested factual issues, there was also a dearth of documents and no independent witnesses. The credit of the witnesses was therefore a crucial matter.

I deal with Rocco’s evidence in paragraphs [144] to [156] below.

An attack was made on Gina’s credit based upon a failure to disclose some relatively small amounts of income in her tax return. She accepted they should have been disclosed. I do not regard that as a sufficient basis to make an adverse finding about her evidence in this case. She gave straightforward answers in the witness box. I accept her as a witness of truth. However, her evidence does not really touch on any factual issue that was in serious issue in the proceedings. In expressing this conclusion, I have not overlooked the dispute between the parties about how much work Rocco actually did on the Farm or in connection with its business (such as making deliveries or going to the market). It is clear that he did as much as he could. In my view, nothing ultimately turns on whether that was many or less hours in the day.

Veneranda was called in Rocco’s case and gave evidence through an interpreter. Understandably, she clearly wanted to support Rocco. I am satisfied she was trying to do the best she could, but that her memory was not to be relied upon. This was particularly so in relation to Rocco’s estoppel case. She was the only witness who gave evidence corroborating Rocco in relation to Diego’s alleged representation in 1977. Her evidence was to the effect that Diego made the representation (more than once) to Rocco in her presence. I completely discount that evidence as unsafe for me to accept for three reasons.

First, and foremost, she conceded in cross-examination that she had refreshed her memory on this point by discussing it with Rocco. I am not satisfied she had any independent recollection of the matter.

Second, nowhere in his evidence did Rocco suggest Veneranda was present for the critical conversation or conversations with Diego.

Third, when asked in cross-examination about how long Rocco attended college and worked as an apprentice, she replied “Rocco knows all about it. I can’t remember exactly. Okay, I’ll go back. Initially maybe it was a year or something. I don’t actually remember. He worked there for a little while until his father said, “Don’t go there anymore” but Rocco would know exactly”. Similarly, when asked about whether her three children were independently represented in the Family Court proceedings, her answer began “I don’t actually remember...”. I gained the clear impression such answers — which I accept as honest — encapsulated her best evidence on any contested matter of importance, namely that she had no real recollection and was dependent on Rocco. I otherwise accept her evidence insofar as it accords with the probabilities or is corroborated by Aldo (who receives nothing under the Will and who I characterise as the only independent witness in this case).

Sung was cross-examined at length about the circumstances of her marriage to Diego. A complication in assessing her evidence was that while she gave her evidence in English rather than her native Korean, both her comprehension and manner of expression were not confident or fluent in the witness box. Sung was obviously an intelligent person. I have no doubt that her level of English was conversationally adequate but on many occasions it was pushed beyond its limits by the demands of the witness box, so that some of her answers were difficult to follow. There were also obvious cross-cultural issues in relation to her demeanour and how she reacted to formal questioning in the court room environment which would make me cautious about relying on her demeanour. By the conclusion of her evidence, I had formed the view that she was doing her best to tell the truth, but ultimately no matter of significance to the outcome of these proceedings turned on her evidence.

Aldo was not cross-examined. I accept his evidence.

Angelina made no secret of her bias. She had not spoken to her mother, Rocco or Gina since 2001 and candidly admitted that she did not like them and wanted to see Sung win the case. As I have already noted, she had entered into an arrangement with Sung to ensure her (Angelina’s) share of the Estate was quarantined from any success the plaintiffs might have in the proceedings. I do not accept her evidence on any contested matter of fact unless it was against interest, independently corroborated or otherwise in accordance with the probabilities.

Rinaldo’s evidence fell into the same category as Angelina’s because he accepted that he was there to support his wife and that his view was that the Will should be upheld.

As it happens, no question in these proceedings turned on the acceptance or rejection of Angelina and Rinaldo’s evidence.

Diego was born on 17 October 1927.

Diego married Veneranda by proxy in Calabria, Italy in 1957. She subsequently joined him in Australia in 1957. This was the year Diego bought the Farm. They had three children together: Rocco Condello (born 4 January 1961), Angelina Palumbo (born 25 November 1963), and Gina Miceli (born 21 September 1973).

Diego, Veneranda and the children lived on the Farm. Diego also leased an adjacent five-acre property. Diego grew produce (initially vegetables and later flowers) to sell at markets in and around Sydney and New South Wales. Diego also ran a tractor contracting business whereby he would use his tractor to prepare the land of other market gardeners in the local region.

Diego, Veneranda, Rocco, Angelina, and Gina all performed work for the market farm business at one point or another. The nature and degree of this work varied between the family members and over the course of time.

The majority of the work on the Farm was performed by Veneranda and Diego (although Diego spent a considerable amount of time on contract tractor related jobs). Diego hired labourers to assist on the Farm, but particularly at Hoxton Park (see paragraph [53] below) during summer.

The children were all expected to work on the Farm when Diego required. This included before and after school and on weekends. Rocco began helping on the Farm in 1971 when he was age 10. From about age 12, Rocco would sometimes drive the Farm’s tractor when required by Diego.

The children did not receive pocket money when they were young. They were not paid any other form of income for working on the Farm. They were financially dependent on their parents and any expenses were met by their parents.

After leaving school, Angelina continued to live at and work on the Farm until she married and left the family home in 1985. Angelina’s parents paid for her wedding.

Gina left school aged 16, in 1989, and undertook a hairdressing apprenticeship. However, even after she commenced work as an apprentice hairdresser and was attending technical college, she was still required to work on the Farm after work, college and on the weekends.

During the mid- to late-1960s, Diego met Aldo Vasco who was at the time a Fiat tractor salesman. Diego and Aldo became friends and remained in regular contact.

In 1973, Diego and Veneranda purchased five, two-bedroom units at Lynette St, Hectorville in South Australia.

In about 1976, the Farm was converted from growing vegetables to growing flowers.

Rocco finished school in 1976 having completed Year 10. He continued to work on the Farm. He was not paid for this work.

In 1977, aged 16, Rocco commenced an apprenticeship as an auto-electrician with Pat Scanardello (who lived across the road from the Farm) and enrolled in a course at Granville Technical College. He stopped working on the Farm because of these commitments.

Shortly thereafter, Rocco alleges that Diego represented that if he (Rocco) worked on the Farm, then he would one day receive the Farm. The Court’s findings in relation to this are set out in paragraphs [139] to [156] below. Rocco says that he resigned his apprenticeship and ceased going to technical college in reliance on the representation and recommenced working on the Farm.

From about mid-1977, Rocco was working on the Farm on a full-time basis. He was not paid a wage for this work.

In June 1979, while driving a delivery van, Rocco was involved in a head-on motor vehicle accident. Rocco sustained substantial knee injuries which made daily movement more difficult for a period of time. By about September 1979, three or four months after his car accident, Rocco began to suffer diffuse or generalised joint pain and high temperatures. His evidence (which I accept) was:

At the end of 1979 and the start of 1980 Rocco spent a number of weeks in various hospitals. He was unable to work on the Farm while he was in hospital and required the assistance of a walking stick. He had difficulty negotiating stairs and bending down to pick flowers.

In about 1980, Rocco was diagnosed with degenerative rheumatoid arthritis or Still’s disease. From this point onwards, Rocco’s physical mobility began to decline. His conceded that his ability to perform manual labour including activities requiring fine motor skills such as cutting flowers by hand was progressively limited by his illness.

Although Rocco denied he used a walking stick during the 1980s, given the evidence of both Veneranda and Aldo to the contrary, the Court finds that from quite early after his diagnosis Rocco required the assistance of a walking stick.

In 1980, Diego and Veneranda purchased five units in Tranmere, South Australia for $104,000. Units were placed in each of Rocco, Angelina, and Gina’s names.

In 1984, Rocco received compensation of $204,000 for the injuries he had sustained in the 1979 van accident and associated arthritis.

On 23 January 1985, Diego and Rocco purchased a 27-acre property located at Hoxton Park, New South Wales (“Hoxton Park”) for $235,000. The transfer document records:

I regard it as significant evidence of Rocco’s diminished physical ability at this time that he is described as a pensioner, although the topic of what kind of pension he was receiving was not explored in the evidence.

Although Hoxton Park was registered as being owned in equal shares by Diego and Rocco, Rocco had contributed a greater portion of the purchase price ($150,000 of $235,000 plus stamp duty, about 60%), being from the compensation funds he had received. A three-bedroom house was built on the land shortly after purchase. Diego rented the house. He kept the rent proceeds and used the money to assist in discharging the mortgage over the property.

Hoxton Park was used primarily to grow flowers but some cattle were also kept on the property. The work was labour intensive. Diego hired two to three labourers to assist with the harvest, particularly in the summer months. When he could, Rocco would drive the delivery van and assist with tractor work.

On 1 June 1985, Angelina married Rinaldo Palumbo and moved out of the Farm. They continued to reside in a house about 600 metres away. When Angelina and Rinaldo visited the Farm, Rinaldo also assisted on the Farm including repairing fences, planting carnations and servicing tractors and other vehicles owned by Diego.

On 10 February 1987, the Farm was subdivided into two adjoining lots (“Lot 2” and “Lot 3”).

On 12 May 1987, Diego sold the larger Lot 2 (approximately two acres / 1.87 acres or 7,578m2) and retained the smaller Lot 3 (approximately an acre / 1.1 acres or 4,550 m2). In what follows in these reasons, a reference to the “Farm” refers to Lot 3 retained by Diego.

Following the sale of Lot 2, Rocco alleges that there was a further conversation between him and Diego about the future ownership of the Farm and Diego’s share in Hoxton Park. The Court’s conclusions about this conversation are at paragraphs [152] to [155] below.

During 1987, Rocco purchased a property in Fairfield for $70,000.

In January, June and October 1990, Rocco had three separate hip replacement surgeries. For several weeks after each surgery, Rocco required the assistance of crutches to walk.

In 1991, Diego and Veneranda’s marriage broke down and they separated. She moved off the Farm with Rocco and Gina to a house in Smithfield. Their contact with Diego ceased and there is a suggestion in the evidence (but it is unnecessary to find) that Veneranda, Rocco and Gina obtained a restraining order to stop Diego from making contact. In that same year, Veneranda commenced Family Court proceedings for a property settlement under the Family Law Act 1975 (Cth) (the “FLA”). Rocco, Gina, and Angelina all intervened in the proceedings and were named as parties.

Section 92 of the FLA then included:

Save for a few instances of Gina and her children visiting Diego in his old age and what Rocco says were two unsuccessful attempts at contact by him, Veneranda, Rocco, and Gina’s contact with Diego ceased. Diego remained in contact with Angelina and her husband, Rinaldo.

Sung immigrated to Australia from South Korea in 1991 on a skilled migration visa. Sung has at least one younger brother and two younger sisters, all of whom continue to reside in South Korea, and at least one nephew and one niece.

In 1992, Rocco obtained a loan of $350,000 through an old school friend. Rocco invested that amount in an online travel reservations start-up business. The business ultimately collapsed and he lost his investment.

Rocco was hospitalised for an extended period from April 1993 to March 1994 and underwent multiple (14) surgeries for acute abdominal and gastric conditions. At various times during that year he was seriously ill and was in the intensive care unit.

Rocco’s medical condition caused delays to the Family Court proceedings, with the hearing being postponed at least twice. After his release from hospital in March 1994, Rocco was confined to wheelchair from about this time onwards as his health and mobility continued to decline. He continued to reside with Veneranda in rented accommodation in Smithfield.

Diego and Veneranda’s marriage was dissolved on 29 November 1993.

On 25 February 1994, orders were made by consent in accordance with “Terms of Settlement” agreed and signed by the parties and the Family Court proceedings were settled (the “Parramatta Orders”). What occurred on that day is further discussed in paragraphs [157] and [158] below.

The Parramatta Orders included an order that Diego “be declared the beneficial owner of the [Farm] and each of the other parties acknowledges that he or she does not have any beneficial interest therein”. Aldo recalled conversations he had with Diego around the time of his divorce from Veneranda where Diego said words to the effect “I don't care what I lose so long as I keep this house [the Farm]. They can have the rest.”

Pursuant to the Parramatta Orders, Hoxton Park was sold for about $2,450,000. Rocco received half of the proceeds of sale (approximately $1,200,000). Rocco used $450,000 of this money to repay the loan referred to in paragraph [67] above. Veneranda received half of the proceeds, the balance of which she retained after paying $160,000 to Diego. Veneranda used the money to purchase a house in Abbotsbury.

Towards the end of 1994 and in early 1995, Rocco spent about $150,000 on modifications to Veneranda’s house to accommodate his physical condition and disability including installing a hydrotherapy pool with pool hoist and wheelchair accessible pathways.

At about this time, Rocco invested $300,000 into the development of a semi-trailer steering suspension system with a friend. The system ultimately failed to be built and he lost his investment.

During 1995, Rocco invested $130,000 in a cake shop business with a friend. The business ultimately failed to turn a profit and Rocco agreed to leave the business to the friend. His lost his investment.

On 3 July 1995, Gina married Robert Miceli when she was 21 years old. Gina and Robert had two children together. Gina and Robert separated in 2004 with a property settlement taking place in 2005 and a divorce finalised in 2007.

In 1997, Rocco was diagnosed with type-2 diabetes. He began receiving disability support pension payments.

In 1998, Rocco was diagnosed with osteoporosis.

In 2001, Veneranda sold the units at Tranmere for $300,000 (see paragraph [51] above). She gave Rocco a share in the proceeds of sale to a total of $75,000.

In that same year, Diego married Giustina Lapanne.

During 2001, Rocco invested $180,000 in a pizza restaurant with a friend. The business ultimately failed to turn a profit and was closed. Rocco lost his investment.

On 21 January 2003, Diego made a will which gave his then wife, Giustina, a life estate in the Farm and with the Farm to be sold at the end of the life estate. From that sale, $100,000 was to be given to Gina and the balance to be divided between Giustina's five children. Clause 9 of this will specifically mentioned that Rocco and Angelina had been excluded “as during my lifetime I have already provided adequately for them.”

In 2008, Sung returned to Seoul, South Korea. Whilst in South Korea she had a short-lived relationship with a man named Mr Pak.

In 2009, Diego’s second wife, Giustina died.

In about 2011, Sung returned to Sydney and began working part-time in a community aged care facility for elderly and disabled people. While working there, Sung met Aldo’s wife, Helen Vasco. They became friends. Helen is originally from the Philippines.

In 2011, Gina visited Diego accompanied by her two children.

In 2012, discussions occurred between Diego and Aldo in which Diego indicated he wanted someone to look after him as he aged. Aldo recalled (and I accept his evidence) Diego saying words to the following effect at different times:

Gina gave evidence to the same effect — that Diego had asked her to move onto the Farm with him to look after him and that she had refused because it would require her to resign her employment at Gloria Jeans and uproot her children. She deposed “I did not want to move from my home and change my life and the lives of my daughters.” Contact between Gina and Diego ceased completely following this incident.

In or around September 2012, Diego and Sung were introduced to each other by Aldo and Helen Vasco. Diego was 85 and Sung was 52 years old. Sung understood that Diego “was looking for a woman to live with him as his wife and carer.”

By October 2012, Sung was visiting Diego two or three times a week at the Farm and was assisting him with daily activities such as picking up medications, banking cheques, and driving him to doctors’ appointments. Sung did not receive remuneration for performing these tasks. Diego wanted Sung to move in with him permanently to provide care and company.

During March 2013, Sung and Diego began to negotiate a financial agreement pursuant to s 90B of the FLA (the “Financial Agreement”). Aldo was heavily involved in the negotiations, not least because according to Aldo (and I accept) Diego was illiterate. Sung was privy to a draft of the Financial Agreement which she discussed with Aldo and approved before the document was executed.

Diego was advised in relation to the Financial Agreement by Mr Ross Koffel, solicitor. Sung was advised by Mr Peter Arnott, solicitor. Sung’s evidence (which I accept) was:

In April 2013, Diego was admitted into Bankstown Hospital for gallstone surgery.

On 24 April 2013, Diego executed a document appointing Aldo as his attorney and enduring guardian.

On 23 May 2013, Diego and Sung executed the Financial Agreement. Under that agreement, Sung received an initial payment of $200,000 “in contemplation of marriage” and Diego committed to funding $100,000 of renovations to the Farm and to paying Sung a weekly sum of $100 for the duration of the marriage.

Recital I of the Financial Agreement stated that “In consideration of Sung acting as carer as well for Diego, Diego agrees to bequeath one-half of the Bossley Park property to Sung when he is deceased and his Last Will & Testament will irrevocably reflect this agreement”. This was given effect in clause 13:

There were clauses detailing the division of assets in the event of separation or marriage breakdown which included Sung repaying half of the $200,000 advanced to her if the breakdown occurred within five years of marriage. Clause 9 provided a release of rights in respect of making a family provision application against each other’s estate.

Sung described her $100 per week allowance as being “very tight” and a “quite ridiculous amount”, and that she “expected more than that, around $500”. She agreed that Diego was a “very frugal person” and stated he was “holding the money. He doesn't know how to spend money.”

On 25 May 2013, Diego and Sung married at Club Marconi in Bossley Park. Shortly thereafter, Sung moved onto the Farm permanently. She had previously been living in a shared apartment in Artarmon paying rent of about $170 per week.

On 28 May 2013, Sung lodged a caveat over the Farm relying upon an equitable interest she claimed in the land pursuant to the Financial Agreement.

On 9 August 2013, Gina married her second husband, Gerard Hamad. He has three adult children from a previous marriage. Gerard and his three sons began residing with Gina and her two daughters in the house in Greystanes which Gina had purchased in 2005 following her property settlement with her first husband.

On 31 October 2013, Diego executed the Will with an accompanying statutory declaration, details of which are at paragraph [116] below.

Diego died on 17 September 2014 at age 87. None of Diego’s natural children attended his funeral.

In late 2015 or early 2016, pursuant to clause 9 of the Will, Aldo and Sung as executors sought development advice in relation to the Farm. In early 2016, they lodged a development application (“DA”) with Fairfield City Council for a ten-lot subdivision of the Farm (not the eight lots specified in the Will). The DA was approved conditionally on 1 April 2016 with deferred commencement granted for the 10-lot subdivision. Given that Rocco claims an entitlement in equity to the entire Farm, no further steps have been taken by the defendants in relation to the subdivision.

These proceedings were commenced on 12 March 2015.

In September 2016, Rocco suffered a heart attack and was diagnosed with coronary artery disease.

The parties accept the defendants’ evidence of the value of the Estate and the distributions to be made under the Will.

The Will provides:

At the time of Diego’s death (where the Farm, undivided, is included at an approximate value of $2,500,000), the Estate was estimated to have a value of $3,138,162.62.

Since the grant of probate, a total of $260,784.90 has been paid out of the Estate including cash distributions of $124,500 to Sung and expenditure of $136,284.90 including for funeral expenses, legal and probate costs, and consultation fees and other costs related to the subdivision plan. Sung has also distributed a car valued at $10,000 to herself.

As at 14 December 2015, the undivided Farm was estimated to have a value of about $3,640,000. Accordingly, the present value of the Estate is estimated at slightly more than $4,000,000.

The plaintiffs’ costs up to the conclusion of submissions are estimated to be $307,111.95 (it is unclear whether this is calculated on the ordinary or indemnity basis). The defendants’ costs up to the conclusion of submissions are estimated to be $111,500 on the indemnity basis plus $13,130.13 in respect of the defendants’ previous solicitors. The Estate has already paid $79,135 of these costs to date, leaving $45,495 to be paid.

The Farm is the main asset of the Estate. The exact value of the Estate depends upon whether or not the subdivision is realised. Valuations obtained in preparation for the DA had estimated the Farm’s worth upon subdivision into 10 lots as between $5,635,000 and $5,700,000 (each lot being valued at $610,000, and including subdivision costs of $353,000 to $465,000).

If the Farm was sold as it currently stands without subdivision and the proceeds of sale divided pursuant to clause 9 of the 2013 Will, each of Rocco, Gina, and Angelina would receive about $455,000. Sung would receive between $2,253,423 and $2,780,529 from the Estate. It was common ground that for the purposes of determining the adequacy of the provision made by the Will for Rocco and Gina, the Court could not have regard to a figure higher than $455,000 for each of them. The Court has approached the matter accordingly.

The Will was accompanied by this statutory declaration:

To the extent it is relevant, that declaration does not reflect the facts that have been established in these proceedings:

Both the units and Hoxton Park referred to in the second and third paragraphs of the declaration were transferred to Veneranda alone. Rocco relinquished his interest in Hoxton Park. He received payment from Veneranda of half of the proceeds of sale of Hoxton Park and later in 2001 a share in the proceeds of sale of the Tranmere units.

In relation to the penultimate paragraph of the declaration alleging no contact, there is evidence (from both Gina and Rinaldo) that Gina visited Diego with her children on a few occasions, and that Rocco, accompanied by a friend, tried to visit Diego unsuccessfully in about 1992 and 1995. No one denies that Diego and Rocco had been estranged for about 25 years and that relations between them, since about 1980 when Rocco’s health markedly declined were, at best, tense.

My understanding of the evidence has been informed by the view I have come to about what kind of person Diego was. The evidence from all the family protagonists supports the finding, which I make, that to his family Diego was a violent, domineering man who expected all of his family to work on the Farm for nothing. Sung paints a very different picture of Diego, but by the time of his relationship with her, Diego was in a position of dependence and undoubtedly would have been charming to Sung. I have no doubt his behaviour to his family was quite the opposite.

Rocco, Gina, Veneranda and Angelina all gave evidence that Diego had an irascible nature and “was prone to violent outbursts with little or no warning”. Some examples of the evidence will suffice.

In her affidavit of 23 April 2015, Gina deposed: “I do not have happy memories of my childhood. The deceased and my mother had frequent arguments at home. I recall that these arguments occurred every few days. The deceased would raise his voice and be verbally abusive to whomever was in his presence. He would often throw objects or lash out and hit my mother, my brother, my sister Angela and/or me. On occasions I became so frightened that I would run out of the house and take refuge at the home of a neighbour.”

In her affidavit of 2 June 2016, Angelina confirmed “I recall seeing my father strike my mother with the flat of his hand (slap)” and “Occasionally my father also slapped me when he was angry.” She also said “I do not recall my father striking me or any other member of my immediate family without warning”. However, she observed “that my father lashed out when he was angry” but that she was not fearful of Diego unless she knew she had done something to anger him.

Veneranda gave oral evidence that Diego had threatened to “kill me and throw me in the dam” and it was clear from her evidence generally that she was at times afraid of Diego.

It is well established that the Court exercises caution when assessing evidence about alleged conversations with deceased persons said to establish claims against that person’s estate: see, for example, the remarks of Bryson AJ in Zahra v Francica [2009] NSWSC 1206 at [1]–[2]:

In Day v Couch [2000] NSWSC 230, Bryson J (as his Honour then was) said at [9]–[10]:

In Grundel v The Registrar General (1990) BPR 97–340 at 11,219, McLelland J (as his Honour then was) stated:

In assessing the evidence, I have drawn upon the principles in relation to fact finding which I outlined in Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964:

Bearing the above findings and principles in mind, I will now consider the various claims advanced by Rocco and Gina.

Rocco pleads that in 1977 Diego represented to him that if he gave up his auto-electrician apprenticeship, resigned his employment, and left technical college to work on the Farm, that property would be given to him (the “1977 Representation”). In reliance upon that representation, he gave up his other commitments and worked on the Farm on a full-time basis, unpaid. Accordingly, he says that he suffered detriment because he did not receive a fair or reasonable wage for the hours worked; he was financially dependent on Diego for general living, entertainment and recreational expenses; he gave up the opportunity to obtain qualifications and pursue a paid career as an auto-electrician; and because he gave up the chance to participate in social and recreational activities due to the hours he worked.

Further, Rocco pleads that in 1987 following the subdivision and part sale of the Farm, Diego represented to him that he (Rocco) would receive the remainder of the land, and, additionally, (Diego’s share in) Hoxton Park (the “1987 Representation”). There is no specific pleading of reliance on or detriment arising from the 1987 Representation, but it was implicit in the way the case was conducted that it was alleged that Rocco continued to work for free in reliance on the 1987 Representation and continued to suffer similar detriment.

Rocco’s statement of claim seeks a declaration that the Farm is held on trust for him by the defendants and should be transferred to him. Alternatively, he prays for an order that the defendants pay to him “such sum as will satisfy [Rocco’s] equity in” the Farm.

Rocco’s case is put as “estoppel by encouragement” based on the 1977 and 1987 Representations and Diego’s conduct. The applicable legal principles on proprietary estoppel are well established. In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 (“Waltons Stores”) at 404, Mason CJ and Wilson J explained proprietary estoppel in the following terms:

Of this form of proprietary estoppel, Handley JA wrote in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21]:

In Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41, Brereton J provided a concise statement of the relevant principles, in particular the necessary elements the claimant must establish:

In The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 413; [1990] HCA 39, Mason CJ explained that a court:

Rocco’s estoppel case required him to prove, on the balance of probabilities but bearing in mind the matters set out in paragraphs [125] to [127] above, the 1977 and 1987 Representations. His submissions can be summarised as:

The defendants submitted:

I generally accept the submissions of the defendants to conclude that the Court is not satisfied that either the 1977 or 1987 Representations were made. In reaching this conclusion, I have particularly taken into account the principles set out in paragraphs [125] to [128] above, reminding myself that while the standard of proof is the balance of probabilities, I must be actually persuaded of the existence of the fact in issue, that it is a legally significant matter with substantial consequences for the parties (cf s 140(2) of the Evidence Act 1995 (NSW)) and that a careful examination must be undertaken when the only other party to the relevant conversations is dead.

There are five reasons for my conclusion. The first two are the main reasons, but my ultimate conclusion is the product of the cumulative effect of what follows.

First, the 1977 and 1987 Representations are entirely uncorroborated by any witness or document. For the reasons set out in paragraphs [22] to [25] above, I do not accept Veneranda’s evidence as corroborative. In accordance with authority, I approach Rocco’s allegations with caution, but not with a disposition that they must be untrue for want of corroboration.

Second, Rocco had to be prompted to give evidence of the 1977 Representation. To provide context it is necessary to reproduce the transcript (emphasis added):

I regard the fact that Rocco had to be prompted by Counsel to give evidence of the 1977 Representation as a significant matter which raises a real doubt in my mind as to whether the words “Stay here and work on the farm because one day this farm will be yours” were said. There was a clear pause between the first part of Rocco’s answer and Counsel’s next question: “Did he say anything in relation to what would happen in the future?”. I accept Rocco now believes those words were said. However, the focus of his evidence — both as to his father’s imperative demand to leave school and work with him, and in relation to the conversation in which the 1997 Representation was allegedly made — was the demand to work on the Farm. I was left with the strong impression from the totality of the evidence reproduced above that Rocco’s primary recollection was his father’s demands, not the provision of an incentive in the form of the 1977 Representation.

In giving the weight which I do to Rocco’s viva voce evidence, I have anxiously considered two matters put on Rocco’s behalf.

First, Dr Mantziaris submitted that the human element in the legal process should not be overlooked, particularly that Rocco’s evidence should not be discounted or dismissed and his credibility questioned because “for some bizarre legal reason he’s forced to go into the box and repeat it [his affidavit evidence] all in Italian”. Rather, this spoke to Rocco’s authenticity as a witness who did not simply repeat verbatim his affidavit evidence and “rattle off the lines like a parrot”.

I do not find that a sufficiently compelling explanation. Rocco did not impress me as being particularly nervous or confused. He had already had an opportunity to get into the flow of giving his evidence by dealing with other evidence before he was asked about the representations. Nor, with respect, do I accept that what occurred was for a “bizarre legal reason” (a term which I understood to be an advocate’s flourish). A court should proceed on the best evidence. In my view, particularly where the relevant conversation was in a foreign language, having a witness give their evidence viva voce in that language is a far more reliable basis on which the Court can act than an affidavit drawn by solicitors in English (and which did not even refer to the fact that the words had not been spoken in English). This is especially the case where, as here, the lack of corroboration means that the Court’s assessment of the witness will necessarily play a major role in determining whether or not the evidence is accepted.

Second, it was submitted it was not plausible that Rocco would have worked unpaid for the length of time which he did in the absence of a promise of future ownership of the Farm. Dr Mantziaris compared Diego to the tyrannical and sadistic peasant father in the famous Italian film “Padre Padrone” who takes his young son out of school and forces him to spend the next fourteen years tending sheep in the Sardinian mountains.

However, it is the evidence and not cultural stereotyping that leaves me unable to exclude as a real possibility that the explanation for Rocco’s conduct was that he succumbed to the demands of his violent father whether through fear or obedience or, in my view most likely, a combination of the two. Rocco had worked on the Farm since he was ten. He was only 16 at the time of the alleged 1977 Representation. As Angelina said in her affidavit, Diego expected all of his children to work on the Farm when he told them to do so. I have no doubt that it is true. Rocco had been the subject of previous demands to leave school and work on the Farm. As I have already found, Diego was violent and demanding. In assessing the probabilities of human behaviour (see Sidhu at [69]), Rocco’s uncorroborated evidence and the fact that he did stay on the Farm are insufficient to displace the explanation to which I have referred and which I think remains a real possibility. As for why he continued to stay, it seems to me that the consequences of his 1979 van accident and the increasingly debilitating effects of his illness shortly thereafter made leaving to take up some other employment a steadily diminishing possibility. To my mind, this remains at least as equally a plausible explanation of his continuing to stay on the Farm as the explanation advanced for Rocco of the incentive of the alleged promise.

The third reason for my overall inability to accept that the 1977 Representation was made is the cumulative effect of several pieces of Rocco’s evidence suggesting that, while not being deliberately dishonest, Rocco’s memory was both unreliable and coloured by an entirely understandable sense of frustration and unfairness at the circumstances in which he now finds himself, including his serious physical disability. I refer to his evidence about not using a walking stick in the 1980s (which I do not accept — see paragraph [50] above); his acceptance that his memory was not always good and his failure to advert to the Parramatta Orders (see paragraphs [162] to [163] below); and his unsatisfactory evidence about his visits to The Star Casino (see paragraph [197] below).

Fourth, I do not think the fact that Diego offered Gina the Farm in return for caring for him in his old age makes either of the 1977 or 1987 Representations more likely. Diego’s circumstances were very different when he made the offer to Gina.

Fifth, Rocco did not assert in the Family Court proceedings his alleged interest arising from the alleged representations. Although I am unable to determine whether there is an Anshun estoppel (see paragraph [175] below), as a practical matter I am satisfied he could have and should have raised it — if he believed he had it — in those proceedings. For the reasons set out in paragraph [172] below, I do not think Rocco’s illness would have prevented him from doing so.

Turning to the 1987 Representation, for the same reasons I have given in relation to the 1977 Representation, I am unable to reach a state of actual persuasion that it was made. However, there is an additional reason which leaves me unpersuaded, namely that such a representation seems unnecessary, and therefore highly unlikely, when the evidence clearly supports the conclusion (which I find) that by 1987 Rocco’s physical problems meant he was unable to be of the kind of help Diego expected. In other words, I find it unlikely that Diego would, in effect, have renewed or repeated the 1977 Representation by making the 1987 Representation when Rocco was, as I find, already very limited in what work he could physically do.

In cross-examination Rocco agreed that from 1979 when he was diagnosed with rheumatoid arthritis to 1990 his condition progressively degenerated and that he was increasingly limited in the types of work which he was able to perform. The Court is satisfied he used a walking stick in the 1980s. He stated he was unable to do jobs that were physical or labour intensive but he was able to do continue “the rest, like I said, the delivering and picking flowers” and tending to the sprinklers. He stated “we'd water at night and turn the sprinklers on and off and, and stuff like that I would be, I still was able to do.”

Rocco agreed that after his diagnosis there were times when he was unable to perform any work at all because he was confined to bed. Rocco conceded that by 1980 (seven years before the alleged 1987 Representation) the work that he was able to perform on the Farm “probably” did not meet the expectations of his father which likely frustrated Diego and detrimentally impacted the relationship between father and son. I consider Rocco’s insertion of “probably” an understandable but self-serving qualification. I have no doubt that as early as 1980, and certainly by 1987, Rocco was not able to do manual work on the Farm and was not meeting his father’s expectations.

In reaching the conclusion expressed in paragraph [152] above, I have relied on Rocco’s own evidence. However, even allowing for my concerns about Veneranda’s evidence (see paragraphs [22] to [25] above), I draw some fortification for that conclusion from her generalised evidence in cross-examination:

Rocco’s estoppel claim therefore fails because I am not satisfied that the 1987 or 1997 Representations were made. However, in case that conclusion is wrong, I will briefly consider the special defences raised by the defendants arising from the Family Court proceedings. I have considered each party’s submissions on the defences. In the interests of brevity, and with no disrespect to those arguments, I shall confine myself to expressing my conclusions.

The only formal records that were before the Court in relation to the Family Court proceedings were the transcript of what occurred (the “Transcript”), and the Parramatta Orders made, in the Family Court of Australia sitting at Parramatta on Friday, 25 February 1994. No pleadings or affidavits from the Family Court proceedings were in evidence before me. The transcript includes (emphasis added):

The Orders include (emphasis added):

The Parramatta Orders were carried into effect.

Reference to the existence of the Family Court proceedings and the Parramatta Orders was notably absent from Rocco’s initial affidavit evidence of 6 March 2015 and 2 August 2016. The Transcript and Parramatta Orders were put into evidence in an affidavit by the plaintiffs’ solicitor filed on 31 January 2017.

Rocco accepted in cross-examination that:

Finally, when questioned as to why he had failed to include the Parramatta Orders in his primary affidavit evidence, Rocco said “I can remember most things, but some things I don't, you know” and he could not recall the Parramatta Orders specifically given that they had occurred 25 years ago.

For the following reasons, I am not persuaded that Rocco simply “didn’t remember” the Parramatta Orders and the proceedings in the Family Court, particularly as they related directly to his interest in the Farm:

In his affidavit of 24 February 2017, Rocco asserts that he was too ill to understand properly what was occurring at the time of the settlement and that his consent was given when he was “not in a position to make any informed or rational decision about what document [he] was signing and why [he] was signing it.” In cross-examination he said:

The medical evidence put on in Rocco’s affidavit of 24 February 2017, after the conclusion of the initial hearing, confirms the seriousness of Rocco’s medical condition. He entered hospital on 2 April 1993 and was discharged on 25 March 1994. He had 14 procedures including one on 24 February 1994, being the day before the hearing before Coleman J. While some went smoothly, there were complications after others, some of which required him to be in intensive care.

In a letter dated 3 March 1994 the specialist surgeon at Westmead Hospital Dr Ian O’Rourke reported:

A letter dated 14 April 1994 to Dr Francisco from Dr O’Rourke stated:

The defendants’ amended defence particularised their case that Rocco is estopped from bringing his present equitable claim reason of the Parramatta Orders:

Although not specifically pleaded, the parties also engaged with the defendants’ submission that there was an issue estoppel.

The defendants argued that by claiming a beneficial interest in the Farm in these proceedings, Rocco was seeking to reopen issues already determined by the Parramatta Orders. They submitted that those orders defined in a final and formal way the respective interests of the family members in various properties owned by them, including the Farm and Hoxton Park, and that if Rocco had ever had any beneficial interest in the Farm, it ceased to exist upon the making and carrying into effect of the Parramatta Orders after 1994.

I should record that the supplementary evidence filed for both Rocco and Veneranda seemed to be directed to impugning the settlement which led to the Parramatta Orders. These included allegations from Veneranda that Diego intimidated her and that she was more worried about Rocco’s health at the time, and so she capitulated in the settlement. For Rocco, as I have said, the suggestion was that he was so ill he did not really understand what was going on and could not assert his position.

I do not think any of that evidence avails Rocco. As appears from the Transcript, Coleman J was acutely aware from the history of the matter that someone might later seek to impugn the settlement. I am satisfied on the basis of the Transcript that all parties were appropriately legally represented and, especially in relation to Rocco, his consent to the arrangements was on an informed basis. While Rocco was undoubtedly very ill from time to time while he was in hospital, he was able to swear affidavits and receive legal advice. No application has been made to set aside the Parramatta Orders or the underlying contract between the parties which led to those orders being made. The Parramatta Orders therefore stand. More importantly, as both a practical and legal matter, they have been carried into effect.

Were it necessary for me to decide, I am of the view that issue estoppel and an estoppel by convention preclude Rocco’s claim in equity to the Farm. The fundamental point common to each of these defences is that all of the members of the Condello family, all legally represented, became parties to litigation which was plainly intended to resolve their respective property interests in the matrimonial assets of Diego and Veneranda. As interveners, Rocco and his siblings had all the rights and liabilities of parties (see paragraph [64] above). The resolution of the parties’ interests in the various properties was effected by agreeing that the Family Court should, among other things, declare and make orders in relation to their interests in those assets (see especially orders 9 and 16 — set out at paragraph [158] above).

In relation to res judicata, my conclusions are:

My conclusion in relation to Anshun estoppel is also based on the lack of information about the Family Court proceedings. In the absence of more detailed evidence of how the case before Coleman J was conducted in preparation for the hearing that was forestalled by the settlement, including any pleadings or evidence, I am unable to address the fundamental Anshun question of whether the matter relied upon by Rocco in these proceedings was so relevant to the Family Court proceedings that it would have been unreasonable not to have relied on it.

The law in relation to issue estoppel was explained by Dixon J (as his Honour then was) in Blair v Curran (1939) 62 CLR 464 at 531; [1939] HCA 23:

In Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 (“Ekes”), the Court of Appeal (per Bathurst CJ, with whom Beazley P and Emmett JA agreed) said:

In this case there is an identity of issue (the legal and beneficial ownership of the Farm and Hoxton Park) and an identity of relevant parties between the Family Court proceedings and these proceedings. The decision of the Family Court evidenced by the Parramatta Orders is final.

As is clear from the decision in Ekes, the fact that the orders are by consent does not preclude the application of issue estoppel. The terms of the Parramatta Orders themselves are sufficient for this Court to determine what was decided: the ownership of the respective parties in the various properties. To adopt the language in Blair quoted in paragraph [112] of Ekes, the fact that Rocco does not have a beneficial interest in the Farm (a matter acknowledged by Rocco in the Parramatta Orders) is necessarily established as the legal foundation for the decision embodied in orders 9 and 16 of the Parramatta Orders and is legally indispensable to the conclusion expressed by those orders. Therefore Rocco is estopped from asserting otherwise in these proceedings.

Finally, the Parramatta Orders were the product of an agreement between the parties. I accept the defendants’ submission that the agreement was very clear that both Diego’s and Rocco’s interest in Hoxton Park was to be transferred to Veneranda (with Rocco receiving proper consideration for his interest from the contemplated sale of Hoxton Park) and that Diego was to be confirmed as the sole beneficial owner of the Farm. The parties agreed to conduct their affairs with each other on the basis of the facts assumed in the Parramatta Orders, including that Rocco did not have a beneficial interest in the Farm. They are all, including Rocco, estopped from denying that fact: Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14.

Against the possibility that I am in error as to both the representations and the estoppel defences, I should also make some brief observations about how any equity Rocco may have in the Farm should be satisfied.

If the Court had found that the representations had been made, I consider that they were premised on Rocco working on the Farm until Diego’s death. Not least because, through no fault of Rocco or Diego, Rocco’s illness meant that, on any view, Rocco would have been unable to work on the Farm at all after March 1993 (when he was admitted to hospital for a year), in my view it would go “beyond what was required for conscientious conduct” by Diego to compel the transfer of the Farm to Rocco. Rocco’s illness, Diego and Veneranda’s divorce and the Parramatta Orders are all supervening events which militate against enforcing Rocco’s expectations had the Court been satisfied the 1977 and 1987 Representations had been made.

This is a case which “points inexorably to relief expressed not in terms of acquisition of title to land but in a money sum” (see Giumelli v Giumelli (1999) 196 CLR 101 at [49]–[50]; [1999] HCA 10). Such a result is also the correct outcome because it would be inequitable and unjust to visit a result on the Estate contrary to the Parramatta Orders, which brought about an agreed regularisation of all of the family members’ interests in the various properties.

The parties did not provide any submissions on how a money sum should be determined, so it would be inappropriate for me to express any final view. There was uncontested evidence of what Rocco would have earned as an auto-electrician. Between 1 January 1977 and 30 June 1993 this would have totalled $236,258.

Assuming, without deciding, that such an amount would represent an appropriate starting point for determining relief by reference to a money sum, there would have to be consideration of how it should be discounted. Matters to be considered would have to include that even between 1977 and 1993 the evidence makes clear that there would have been periods when Rocco could not have worked due to illness, and that there must be doubt about how long he could really have worked as an auto-electrician in any event. One sad consequence of Rocco’s illness is that his manual dexterity is seriously impaired. I would infer that such dexterity is necessary for an auto-electrician. Also, some allowance may have to be made on the hypothesis that Rocco might have had to pay his own living expenses because either he would have left home of his own volition (having an independent income) or been kicked out by Diego if he (Rocco) had pursued his desired career in defiance of his father.

Both Rocco and Gina bring claims for additional provision pursuant to s 59 of the Act. They are both “eligible persons” and there was no suggestion that the formal prerequisites required by the Act for the bringing of the claims had not been satisfied. The matters in issue were the jurisdictional question, and, if this point was reached, what additional provision the Court should order, including the impact of estrangement. I will set out the applicable legal principles, the circumstances of the relevant parties and then consider Rocco and Gina’s claims in turn.

What is sometimes referred to as the jurisdictional question under the Act is whether the Court is satisfied, at the time when the Court is considering the application, that the provision made in the will for the plaintiff is not adequate for their proper maintenance, education or advancement in life. If that question is answered “yes”, then the Court’s discretion to make a family provision order in is enlivened.

In Verzar v Verzar [2014] NSWCA 45, Meagher JA (with whom Macfarlan and Barrett JJA agreed) summarised the legal principles governing this stage of the inquiry:

In addition to the preceding passage from Verzar, I also respectfully adopt what Hallen J said in Camernik v Reholc [2012] NSWSC 1537 (“Camernik”) both as to the general approach to applications for family provision and judicial observations concerning claims by adult children.

On the topic of estrangement, I respectfully adopt what was said by Hallen J in Underwood v Gaudron [2014] NSWSC 1055, Hallen J said:

Rocco was 56 years old at trial. He was suffered significant health problems for all of his adult life (many of which have been referred to above) and has been confined to a wheelchair since 1994. Rocco is able to drive but needs assistance entering and exiting vehicles.

Rocco has lived with Veneranda (80 years old at the time of the hearing) since his parents’ separation in 1991. He is currently paying $480 a fortnight in board and lodgings. Veneranda provides him with gratuitous care. He was also receiving about 42 hours of government funded carer services per week in 2015 to perform daily life activities such as showering, dressing, getting in and out of bed, and cutting up foods.

In about 1994 and 1995, Rocco expended about $150,000 on modifications to Veneranda’s property to cater for his disabilities. In relation to his mother’s house, he said in the witness box that he would like to “at least get my money back”. There was no direct evidence about Veneranda’s testamentary intentions or her asset position. Rocco was only able to say that he had seen Veneranda’s will and he believed that her assets would be split between him, Angelina and Gina.

Rocco gave evidence that “My income is not enough to meet my expenses and my mother helps me with the shortfall.” He receives a disability support pension and as at 2015 he stated his net monthly income was $2,127.45. In his affidavit of 22 December 2016, he estimated his fortnightly living expenses as $1,023 plus extensive and various medical related expenses. He has assets of about $20,000 — being cash to about $5,000 and a Mercedes-Benz car valued at $15,000 which he purchased in 2008 for $28,000.

Rocco has previously had substantial amounts of money in his possession. In 1994, Rocco received approximately $1,225,000 from the sale of Hoxton Park. In 1993, he received $145,000 when he sold a property in Fairfield West. In 2001, he received $75,000 from the sale of the Tranmere units.

The suggestion was put that Rocco is financially irresponsible and a more prudent person would have sought to invest some of those funds. As appears from paragraphs [67], [75], [76] and [82] above, he has made some poor investments.

Rocco gave evidence that in 2015 he frequented The Star Casino in Sydney up to three or four times a week with a friend. He said that he may have gambled a little but not often and stated “It’s my money; I can do whatever I like with it.” Between 5 May 2014 and 26 May 2015, Rocco withdrew money in and around The Star Casino in Sydney to a total of about $13,500. This equates to about three quarters of his pension. His expenditure seems at odds with his statement that his income is not enough to meet his expenses and his mother helps him to meet the shortfall and he disagreed that contributed to his deficient finances. There was further evidence of substantial withdrawals of $500 and $2000 on 17 December 2015 and $3000 on 29 January 2016, and again further sums of $1000 and $2000 on 4 February 2016. Rocco was unable to provide an answer as to why he was withdrawing this money and what he was doing with the money. He explained his motivation for going to The Star during that period was “just to get out of the house” and that it was “very hard to be stuck in the house all the time.” This part of his evidence was unsatisfactory. I am satisfied that he was probably gambling with at least some of that money. However, the evidence does not support a finding that he continues to gamble or has an ongoing problem with gambling.

In his affidavit of 6 March 2016, in relation to his future financial needs, Rocco said:

Rocco was estranged from Diego from when Diego and Veneranda separated in 1991 until Diego’s death in 2014. Rocco did not attend Diego’s funeral.

For the reasons recorded in paragraph [115] above, the Court will consider Rocco’s claim on the basis that Rocco’s entitlement under the Will is valued at $455,000.

Gina was 43 years old at trial. She has no particular health concerns. She lives with her husband, Gerard, and their five children, aged between 16 and 27 at trial, in a house in Greystanes valued at approximately $600,000 which they own subject to a mortgage of $435,915.90 as at 28 November 2016.

Gina works part-time at Gloria Jeans earning about $300 weekly. She owns a carpet cleaning business which Gerard operates. She receives director’s fees from that business which were about $28,000 in 2016. Gina is also a qualified hairdresser. Gina and Gerard’s combined income for the 2014–2015 financial year was about $101,105. They make weekly mortgage repayments of $557.18. Since her affidavit of 23 April 2015, they have reduced their mortgage by about $55,834.02 to the figure referred to in the preceding paragraph.

There is evidence that Gina visited her father a few times in about 2011 but, other than that, since 1991 they were mostly out of contact. Gina did not attend Diego’s funeral. She says she was unaware of his failing health and asserts that she was not made aware of Diego’s critical condition until after he had passed away. Sung says she asked an old friend to make contact with Gina’s ex-husband to let Gina know that Diego was dying.

Gina stated that her primary need was to discharge her mortgage and to renovate her house. She agreed in cross-examination that it would make a substantial difference to her life if her mortgage were discharged and the regular mortgage instalment of $570 was “freed up” including allowing her to complete the renovations on her house.

For the reasons recorded in paragraph [115] above, the Court will consider Gina’s claim on the basis that her entitlement under the Will is valued at $455,000.

Sung was born in South Korea in 1960. She was 57 years old at trial.

She is currently unemployed and she has not attempted to find employment since Diego’s death. She continues to reside at the Farm. Other than her entitlement under the Will, her only asset was cash to about $65,500 and debts of about $7,584. Since Diego’s death in 2014, she has been living on distributions from the Estate and withdrawals from her superannuation ($25,147 in 2015). She estimated her monthly living expenses at $4,580.

She has a Bachelor’s Degree in Commerce from Dong-Kuk University.

In about 2011, when she was working in community aged care Sung was receiving welfare payments.

Sung has already received $200,000 from Diego in 2013 in contemplation of marriage pursuant to the Financial Agreement. She used $70,000 of the advanced money to repay a debt to her brother. She gave $50,000 to her nephew for his education expenses and she put a further $50,000 in a term deposit account.

Sung’s niece moved onto the Farm sometime after Diego’s death and has been living with Sung ever since. Sung financially supports her niece who is studying a three-year nursing course. Sung gave evidence that she anticipates supporting her niece for two more years, being the duration of the course.

It seems to me clear, not least from the Will and accompanying statutory declaration, that Diego’s testamentary intention was to provide for Sung after his death and well into the future by ensuring she had secure accommodation and access to substantial cash funds. Clause 20 of the Will provides:

For the reasons recorded in paragraph [115] above, the Court will consider Rocco’s and Gina’s claim on the basis that Sung’s entitlement under the Will is valued at between $2.2 and $2.7 million.

It is convenient at this point to deal with a submission made by Dr Mantziaris that in exercising its discretions under the Act, the Court should express its disapproval of Sung and the arrangement she made with Diego. There was a faint attempt by the plaintiffs to suggest that somehow Sung took advantage of Diego. I do not agree in either respect. It is not part of the Court’s role to exercise a moral or social judgment about what in many respects bore the appearance of a commercial arrangement. I am also satisfied from the evidence that Diego entered into his marriage with Sung in a clear eyed and rational way. There is also no evidence to warrant a finding that Sung did not care appropriately for Diego after their marriage. Nevertheless, while not passing a moral judgment, matters such as the length of Sung’s relationship with Diego are relevant to the issues which the Court must resolve under the Act.

Although there was some cross-examination of Angelina and Rinaldo about their financial circumstances, Angelina made no claim against the Estate and did not seek to advance her financial circumstances in the proceedings. The Court has disregarded her interests in accordance with s 61(1) of the Act.

It was submitted for Rocco that if there was some “technical hurdle” with his estoppel claim, the Court should order the transfer of the Farm to him pursuant to his claim under the Act. Alternatively, it was said that if some lesser portion of the Farm were to be granted to Rocco and Gina, then they should receive a high percentage of the improved (subdivided) value of the Farm in the proportion Rocco to Gina of 3:1.

While the defendants addressed the jurisdictional question in their submissions, they were right to focus their primary attention on what would be adequate provision for Rocco. As he was living with Veneranda, they characterised his need as being a future need for accommodation and submitted that it should be no more than an amount in the order of $675,000, being the average price of the three-bedroom houses Rocco tendered in evidence, with an allowance for stamp duty. The defendants submitted that as Rocco had been estranged from his father for an extended period of time, and was presently in secure accommodation supported by his mother, this was not a case where an unquantified sum for contingencies should be awarded.

Turning to the jurisdictional question, the Court is satisfied that the provision in the Will valued at $455,000 is not adequate provision for Rocco’s maintenance, education or advancement in life for the following reasons.

Rocco has serious physical handicaps and his condition is likely to worsen, not improve. He is unemployable and has no assets to speak of. He is dependent on his mother for his accommodation and some of his care and it is unclear what he will receive upon her death. It is entirely possible, for example, that Veneranda’s own future care requirements could leave little for any of her children. Rocco has a clear need of being able to accommodate himself and pay for carers (to the extent he needs more than what the government will fund) upon Veneranda’s death or incapacity to care for him.

Rocco’s financial and physical circumstances are far worse than those of Gina or Sung. In Sung’s case, a reduction in her entitlement under the Will of even 50% would still leave her with more than $1,000,000. In any event, Sung’s claim on Diego’s testamentary bounty, especially when compared to Rocco’s, must be diminished by the short period of time they were married (16 months with an acquaintance of only 8 months before that).

Even if Gina receives no more than her entitlement of $455,000, it will leave her able to pay off her mortgage. She and her husband are employed and employable and have no particular needs as opposed to a desire to undertake renovations.

Finally, the Estate is substantial.

Insofar as estrangement is concerned, I regard it as a neutral consideration in connection with both the jurisdictional question and as to what provision should be made for Rocco. As a factual matter there was an estrangement, but to the extent its origins are relevant, two things can be said. First, I am satisfied it was not caused by anything done by Rocco. Rocco gave evidence of attempts he made to make contact with Diego. It is unnecessary for me to decide whether those occurred because given that I am satisfied of how badly Diego treated Rocco and the other members of the Condello family, even a complete lack of contact would not reflect adversely on Rocco. Second, accepting that estrangement can reduce the amplitude of any provision that might be expected to be made (Wheatley v Wheatley [2006] NSWCA 262 at [36]), this is not such a case because, in my view, the depth of Rocco’s need would negative any such consideration.

What provision should then be made for Rocco? In my view, this is clearly a case where Rocco’s dependence, impecuniosity and disability, both physical and financial, warrant provision in accordance with the principles discussed in paragraph [159(f)] of Camernik discussed in paragraph [189] above.

Having regard to the considerations in s 60(2) of the Act, the following matters are relevant:

Taking all of the foregoing into account, I consider provision should be made for Rocco in respect of the following.

Rocco gave evidence that he wanted sufficient monies to purchase a three-bedroom house and provided examples of suitable properties in the Bossley Park area, the average sale price being about $636,000. No evidence was adduced as to why it should be a three-bedroom house, whereas the need for a two-bedroom house is obvious: a room for Rocco and one for a carer or guest. There was no evidence about the price of a two-bedroom house. However, I infer that the average price for a three-bedroom house should be adequate for a good two-bedroom house. $650,000 should be allowed for future accommodation.

The Court accepts that modifications will be required, including a hydrotherapy pool, to any house Rocco might buy. While there was no evidence of current prices, Rocco gave unchallenged evidence that he had spent $150,000 on modifications to Veneranda’s house in late 1994 and early 1995. I find that it is likely he would spend at least as much modifying any future home and accordingly find that an allowance in that amount should be made.

Rocco worked on the Farm from the age of 10 until he was thirty. In my view, even allowing for Rocco’s increasing disability, a wise and just testator would have recognised that his work and opportunities thereby foregone should be reflected in what was required for his maintenance and advancement in life. Some idea of Rocco’s potentially foregone income is referred to in paragraphs [184] and [185] above, but this must be viewed with an eye to the other contingencies referred to in those paragraphs. In my view, an amount of $50,000 is a conservative but appropriate recognition of Rocco’s unremunerated work.

Finally, I do not accept the defendants’ submission that this is not a case where an amount for contingencies and vicissitudes should be allowed. On the contrary, in my view this is exactly the case for such an allowance given the uncertainties of Rocco’s health, the real possibility that he will have to pay for additional carers himself (accepting his evidence that what the government would pay for was being reduced) and where the Estate is substantial. In my view $150,000 should be allowed for contingencies and vicissitudes.

It follows that the Court concludes that adequate provision for Rocco’s maintenance and advancement is $1,000,000. Given Rocco’s existing entitlement under the Will, the result of these proceedings is that Rocco should receive additional provision of $545,000. Any such additional provision should be borne by Sung’s share of the Estate, having regard to the matters referred to in paragraph [220] above.

Gina’s claim for additional provision falls to be determined very differently when compared to Rocco’s, with the exception that for essentially the same reasons as with Rocco’s claim, I also consider estrangement to be a neutral factor in Gina’s claim.

In my opinion, none of the kinds of the considerations identified in Camernik as warranting a claim by an adult child such as Gina are present in her case. I have reached that conclusion mindful that Gina also endured Diego’s behaviour and had to help on the Farm. However, she was pursuing her own career from the age of 16 and had married and left home at 21. She is in good health, working and is married with a family and working husband. She has a home subject to a mortgage, like so many in the community, and some other modest assets.

It was submitted for Gina that it would be proper provision for her to be able to pay off her mortgage and have funds for renovations, especially given the large, extended family living in the family home. However, I accept the defendants’ submission that this evidence given by Gina in cross-examination makes it clear that adequate provision has been made for her by the Will:

The amount of Gina’s mortgage in November 2016 was approximately $435,000. There is no suggestion in the evidence that Gina and her husband were concerned they would not be able to meet their mortgage payments, so I infer the mortgage is likely to have been reduced further since then. Even as at November 2016 the amount of the mortgage was less than Gina’s entitlement from the Estate of $455,000. On receiving her entitlement Gina will be able to pay off the mortgage. I accept her evidence that, in that event, she will be able to pursue her desired renovations. It follows that the Will makes adequate provision for Gina, so that the Court’s jurisdiction to make an order for any additional provision for her is not enlivened.

Furthermore, in reaching this conclusion I have not overlooked the size of the Estate. However, that does not impugn the conclusion that her needs, if they be such, are met by the Will. In any event, at this point of the analysis I would also give decisive weight to Diego’s testamentary intentions, in particular his overall scheme to ensure that Sung (who, absent her entitlement is in a poor financial state) could live on the Farm and had adequate funds. Even after reducing Sung’s share by the additional provision to be ordered for Diego, that result will be achieved.

During the course of the hearing complaint was made about the conduct of the defendants as executors, their alleged delays, and in relation to their having obtained development approval for a 10 lot development rather than the 8 lots provided for in the Will. The Court has not been required to adjudicate on any of these matters.

However, the Court accepts that the parties are entitled to have an opportunity to consider how the outcome of these proceedings might have an impact on the plan to redevelop the Farm and on the administration of the Estate generally. For example, if a subdivision does proceed, nothing in this judgment should operate to deprive Rocco of the benefit of any increase in the value of his one-eighth interest over $455,000, which he should receive together with the additional provision identified in these reasons. On the other hand, whatever arrangements the parties come to should ensure that he receives no less than $1,000,000 from the Estate.

The Court will give the parties time to consider these matters, what form of orders would be suitable to give effect to the Court’s conclusions and also what orders should be made about costs. Furthermore, given Rocco’s history of making ill-advised investments, the Court wishes to hear the parties as to whether or not the funds which Rocco receives from the Estate should be ordered to be held so as to ensure that they are applied for the purposes referred to in these reasons. Consent orders, or any disagreements about any of these matters, will be resolved on a date which I will fix in consultation with the parties.