Maria Di Giannantonio v Michael Di Giannantonio

The late Michele Di Giannantonio passed away on 7 September 2009, survived by his wife Maria Di Giannantonio and their four children – Daniela (born in 1964), Paula (born in 1968), Adriana (born in 1971), and Michael (born in 1972, who is also known to family members as “Micky”). In 1966, Michele and Maria acquired a property at 2 Crescent Street, Haberfield, as joint tenants. [1] Upon Michele’s death, his interest in that property passed to Maria as the surviving joint tenant by right of survivorship. By his last will dated 11 July 2007, Michele appointed Maria as his executrix and bequeathed his remaining assets to her as the sole beneficiary of his estate. Michele’s estate comprised a half share in property at 151-153 Parramatta Road, Annandale, [2] a half share in property at 44-46 Moore Street, Leichhardt, [3] shares in Finewest Holdings Pty Ltd [4] and MTP Marble & Granite Pty Ltd, [5] and two apartments in Rome, Italy. If Maria had not survived Michele, the assets comprising his estate would have been held on the testamentary trust established under his will in favour of Michael (as to 50 per cent) and Daniela, Paula and Adriana as tenants in common (as to 50 percent). Maria made a will at the same time as Michele made his last will on 11 July 2007 which established a testamentary trust in the same terms in the event that Michele predeceased her.

These proceedings arise out of events that occurred over a period of approximately ten years after the death of Michele.

In short, Michael caused the whole of Maria’s interest in the Annandale and Leichhardt properties that she had inherited from Michele to be transferred to Mamro Pty Ltd, [6] of which Michael was (and remains) the sole director and shareholder, for no monetary consideration. The shares that Maria inherited in Finewest Holdings and MTP Marble & Granite became worthless after Michael established, MTP Marble Granite Sandstone Pty Ltd, [7] in October 2010 to carry on the business that had been conducted by MTP Marble & Granite, using the assets of MTP Marble & Granite. Michael was the sole director and shareholder of MTP Marble Granite Sandstone.

This delivered to Michael the whole of Maria’s interest in assets in respect of which he had stood to receive only a half share under the testamentary trust provided for in Maria’s will dated 11 July 2007, and correspondingly reduced the pool of assets in which his three sisters collectively stood to receive the other half share under that testamentary trust when Maria died.

Maria retained the Haberfield property, but she granted a mortgage over that property in May 2013 to secure a loan taken out by Mamro to fund the purchase of a quarry property at Maroota in New South Wales. As I have already mentioned, Michael is the sole director and shareholder of Mamro.

All of this occurred while Michael and his partner, Ms Melanie Hunter, were living at the Haberfield property together with Maria.

Michael and Melanie moved out of the Haberfield property in September 2016 after Michael and Maria fell into dispute about the scope of authority conferred on him in relation to the Rome apartments under a power of attorney that Maria had signed at his request in 2015.

In May 2018, Maria allowed Michael to return to live at the Haberfield property at his request following the breakdown of his relationship with Melanie. Maria agreed to Michael moving back into the property on the basis that he would sign a document committing to discharge the mortgage over the Haberfield property securing Mamro’s debt. Following negotiations between their respective solicitors, Michael, Mamro and Maria executed a deed which provided, inter alia, for (1) the discharge of that mortgage by no later than 2 October 2020; (2) a right for Michael to reside at the Haberfield property; and (3) an acknowledgement by Michael of the assets that he had received from Maria by way of “early inheritance” and a release of any right that he might otherwise have to make a claim against Maria’s estate following her death for further provision out of her estate, including the Haberfield property (the 2018 deed).

In circumstances where the mortgage over the Haberfield property has still not been discharged, and Michael has lodged a caveat against the title to the Haberfield property claiming a beneficial interest by reason of work to the property that he claims to have done or financed, Maria sues for specific performance of the 2018 deed, a declaration that Michael does not have any equitable interest in the Haberfield property, and an order under s 74MA of the Real Property Act 1900 (NSW) requiring Michael to withdraw his caveat. Maria also seeks an order pursuant to s 95 of the Succession Act 2006 (NSW) approving Michael’s release in the 2018 deed of his right to apply for a family provision order out of the whole or any part of her estate.

Michael and Mamro deny that the 2018 deed is enforceable, including on the grounds of alleged unconscionability. They seek an order setting aside the 2018 deed. Relying on an alleged oral agreement that they claim to have made with Maria in early 2020, Michael and Mamro seek a declaration that they are not required to discharge the mortgage over the Haberfield property until the quarry is sold or Maria passes away, whichever occurs first. Michael also seeks a declaration that he has an equitable interest in the Haberfield property and a further declaration that Maria holds 50 per cent of that property on constructive trust for Michael, subject to any encumbrances.

For the reasons that follow, I have held that the 2018 deed is enforceable and is not liable to be set aside on any of the grounds pleaded by Michael and Mamro. Maria is entitled to orders for the specific performance of the 2018 deed, including orders requiring Michael and Mamro to take the necessary steps to discharge the mortgage over the Haberfield property. I have rejected Michael and Mamro’s claim to have made an oral agreement with Maria in early 2020 permitting them to defer discharging that mortgage until the earlier of the sale of the quarry or the death of Maria. I have found that Michael does not have a proprietary interest in the Haberfield property. Maria is entitled to a declaration to that effect, together with an order for the withdrawal of Michael’s caveat. I have also concluded that it is appropriate in all the circumstances to make the order sought by Maria under s 95 of the Succession Act.

In coming to those conclusions, I have considered all of the parties’ written and oral submissions.

In referring to the individual parties and their family members by their first names in these reasons, I am following the convention adopted by the parties during the hearing. No disrespect is intended.

As was submitted on behalf of Maria, each witness in these proceedings gives evidence of events and conversations alleged to have occurred at least more than a decade, and sometimes many decades, before they made their affidavits. In assessing the evidence of each witness, it is therefore necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman: [8]

As discussed later in these reasons, the need for caution in assessing witness testimony of conversations said to have occurred many years ago is particularly acute in relation to Michael’s evidence of conversations that he claims to have had with his deceased father which is the foundation of Michael’s proprietary estoppel claims in these proceedings. Michele is obviously unable to respond to Michael’s evidence about those alleged conversations. [9]

The factors referred to by McLelland CJ in Eq in Watson v Foxman require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities, [10] noting that witness testimony may still be of value and importance including by providing evidence of the context in which relevant documents and events must be understood. [11]

Unlike Michael’s proprietary estoppel claim, Maria’s claim for specific performance of the 2018 deed is founded principally on documentary evidence.

Evidence was led in Maria’s case from Maria herself, from her daughters Adriana and Daniela, and from her neighbour Dr Alex Shearer.

In cross-examining Maria, Adriana and Daniela, Michael left many important aspects of their affidavits unchallenged. Having regard to the fact that Michael appeared for himself and Mamro at the final hearing, Maria very fairly accepts that it would not be appropriate to strictly apply the rule in Browne v Dunn. [12] However, I accept the submission made on behalf of Maria that, in the course of the fact-finding process, the Court is entitled to attach some significance to the decisions made by Michael not to challenge certain parts of the affidavits of each witness. I consider that those decisions are appropriately viewed as decisions made by Michael rather than accidental omissions. Michael requested and was allowed time to re-read the affidavit of each witness before commencing the cross-examination of that witness. I had explained to Michael at the outset of the hearing the difference between evidence and submissions, that the case would be decided on the basis of the evidence, and that submissions made by either party about disputed factual matters would carry no weight unless supported by evidence. Maria was the first witness to give oral evidence in the proceedings. At the outset of Maria’s cross examination, I explained to Michael that he was entitled to challenge Maria about anything in her affidavit that he did not agree with. I also explained to him that it may be difficult for him to make a submission that any particular aspect of her evidence should not be accepted if he did not ask Maria a question about that aspect. Michael’s cross-examinations were lengthy, robust, and persistent. Michael certainly did not shy away from challenging in strident terms aspects of the evidence of a witness that he chose to address.

Although Michael asserted that he had “a disability in reading, writing and comprehension”, there was no evidence of this. Michael was given an opportunity to seek leave to rely on an expert report that he described as providing evidence of his disability. Michael made no application for leave to rely on the expert report that he had described, although he did make several unsuccessful applications at various times during the hearing for leave to rely on affidavits of lay witnesses that he had caused to be prepared during the course of the hearing. The manner in which Michael cross-examined witnesses, using written notes and sustaining lines of questioning, did not suggest to me that he was suffering from any relevant disability. No such disability was pleaded as part of the alleged special disadvantage in aid of his claim to have the 2018 deed set aside as unconscionable. Nor was any such disability mentioned in Michael’s affidavit sworn on 22 February 2023. Michael’s pleadings, and his affidavit, were prepared at time when he was represented by Clayton Utz, solicitors.

In the circumstances referred to at [19]-[20] above, I consider that the fact that Michael did not challenge in cross-examination a particular aspect of a witness’s affidavit evidence is one matter to be taken into account in determining whether to accept that aspect of the witness’s evidence. However, the absence of challenge does not remove the need to weigh that aspect of the witness’s evidence against any objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities, as explained at [14]-[16] above.

Maria was born in Italy on 6 October 1939 and has lived in Australia since the 1950s. Maria was 84 years old at the time of the hearing. Her oral evidence was given predominantly in Italian and interpreted into English by an accredited interpreter. At times, Maria spoke a few words or short phrases in English.

It is plain from the affidavits sworn by Maria, Daniela and Adriana that each of them prepared their evidence in chief independently of the others. For example, the accounts given by each of those witnesses of the building work undertaken at the Haberfield property during Michael’s childhood and teenage years, and the family members who contributed to that work, differed somewhat according to the experience and perspective of each witness at the time. The nature of the matters recalled by Maria reflect her role as the mother of four children taking responsibility for the family as a whole, whereas Adriana’s account is told from the perspective of the second-youngest child spending considerable hours during her childhood in the company of her younger brother, Michael. In relation to Michael’s mental state during the period in which the 2018 deed was negotiated, each witness gave an independent account of what she observed based on her own interactions with Michael at that time. Adriana expressly acknowledged the limited nature of those interactions with Michael during that period. By contrast, Maria’s account is informed by her frequent interactions with Michael during that period, including while enjoying dinner together every evening after Michael returned to live with Maria at the Haberfield property.

Maria’s oral evidence was given in trying circumstances. She was cross-examined by her 52-year-old son, who has lived with her and who she has looked after for the vast majority of his life. Her cross-examination was extended over one and a half days, which is a long period of time in light of her age of 84 years.

For much of the cross-examination, Michael was focussed on attempting to extract from Maria a concession that she did not write the 2018 deed, and did not understand its terms. When no such concessions were forthcoming from Maria, Michael admonished her to “tell the truth”, and put to her that “you should be honest about this deed”, without any proper basis to suggest that her evidence had not been truthful. Michael’s contention that Maria did not write and did not understand the 2018 deed was driven by his theories that he articulated repeatedly throughout the hearing, including during his cross-examination of Adriana and Daniela, that his sisters had dictated or influenced the terms of the 2018 deed and that Paula, who did not give evidence in these proceedings, had also influenced the content of Maria’s affidavits. Michael’s cross-examination of Maria, Adriana and Daniela revealed both of those theories to be devoid of substance. Maria did not claim to have personally written her affidavit, but gave an entirely orthodox account of having provided instructions to her solicitor over the course of several conferences which had formed the basis of her solicitor preparing the affidavit which Maria had ultimately sworn after it was interpreted for her. Michael’s theory about Paula’s influence appears to have been based on little more than the fact that Paula did not give evidence in these proceedings. As I explain below, there was no cause for Maria to adduce evidence from Paula and no Jones v Dunkel inference arises from the absence of such evidence. [13]

Michael made baseless allegations throughout Maria’s cross-examination that: (1) she was being coached in her answers by signals from Paula, who was seated in the public gallery of the court room for the duration of the hearing; and (2) that Maria’s solicitor, Ms Therese De Pasquale, would coach Maria about how to answer continuing lines of questioning during adjournments that the Court took to allow the interpreter to have regular short breaks throughout the lengthy cross-examination. As I stated when these allegations were made during the hearing, I did not observe any coaching of Maria by Paula or any other person present in the court room. I had (and continue to have) no reason to think that Ms De Pasquale would make use of the short adjournments to coach Maria about her answers.

Even in these trying circumstances, Maria gave her evidence in a forthright manner while remaining composed and engaged with the process. Her answers to questions were appropriately brief and given without any apparent regard to the effect they may have on her case.

Maria readily accepted that she did not personally write the 2018 deed. However, Maria is suing to enforce the 2018 deed. She gave the following evidence during one of her exchanges with Michael in cross-examination, referring to her dealings with her solicitor Ms De Pasquale in relation to the preparation of the 2018 deed:

Having failed to establish that Maria did not participate in the process of drafting the 2018 deed, Michael directed questions to Maria’s understanding of various provisions of the deed in an attempt to establish that she did not understand at the time what had been written. Maria did not claim to be able to explain the legal meaning and effect of each of the terms of the document, but maintained that she had given the instructions that had resulted in the drafting of those terms. Upon being asked “who came up with” the clause of the 2018 deed which records Michael’s agreement to release and discharge Maria for all costs incurred by him for renovation works to the Haberfield property and any other claim that he may have over the Haberfield property, Maria answered (through the interpreter):

As senior counsel for Maria submitted, Maria’s evidence referred to at [28] above is entirely consistent with the process typically followed by a solicitor creating a legal document on behalf of a lay client based on their instructions. As will become apparent later in these reasons, the “circumstances at the time” referred to in Maria’s answer immediately above included that Michael had caused Maria’s interests in the Leichhardt and Annandale properties to be transferred to Mamro in June 2011 and October 2014 (respectively) without having signed a deed that Maria had required to be signed as a condition of her agreement to the transfer of those property interests.

As I have already mentioned, Michael’s attempts to impugn the 2018 deed by suggesting that it did not reflect Maria’s intentions was driven by his contention that he articulated repeatedly throughout the hearing, including during his cross-examination of Adriana and Daniela, that his sisters had dictated or influenced the terms of the deed. That contention was revealed by his cross-examination of Maria, Adriana and Daniela to be unfounded.

Towards the end of the cross-examination, Michael resorted to what I regard as a blatant attempt to exert emotional pressure on Maria to accept his contention and give up her claim to enforce the 2018 deed. Michael said to Maria:

As will become apparent later in these reasons, Michael’s reference in this statement to “My $700,000 that I spent” is one of his formulations of the total amount that he claims to have spent on an extension to the Haberfield property during the period from about 2007 until about 2011. The statement above was rejected and Michael was directed to confining himself to asking questions, resulting in the following exchange with Maria a short time later (emphasis added):

To her credit, Maria did not hesitate to acknowledge in cross-examination that certain matters were beyond her knowledge. This is best illustrated by Maria’s answers under cross-examination about the money that Michael claims to have spent on the Haberfield extension works to which I have referred above. [14]

Each of Daniela and Adriana gave evidence in a clear and forthright manner, responding directly and in appropriately brief terms to the questions asked of them without giving speeches or engaging in argument with their brother. Daniela remained calm and engaged in the process, even in the face of Michael trying to induce an emotional reaction by asking whether she loved Maria and whether he was her “favourite brother”. As was submitted on behalf of Maria, nothing in the cross-examination of Daniela and Adriana cast doubt on the credibility of either witness.

Adriana was able to give detailed evidence about the family marble business that is relevant to the issues in dispute in these proceedings, and Daniela was able to give important evidence about the events of May 2018 which were the catalyst for Maria permitting Michael to return to live at the Haberfield property on the basis that he sign a deed. By contrast, Paula was not a party or witness to any of the conversations or specific events that have given rise to these proceedings. Paula’s evidence would not have elucidated any particular matter relevant to the determination of these proceedings, save that Paula could have given evidence about family relationships and the dynamics of the Di Giannantonio household during Michael’s childhood and teenage years when he claims that Michele promised him the Haberfield property. However, any such evidence from Paula would have been merely cumulative evidence of those matters which were addressed by each of Maria, Daniela, and Adriana. Michael was plainly frustrated by the fact that Paula did not give evidence, but neither the pleadings nor Michael’s own evidence raised any matter for Paula to explain or contradict. Accordingly, as Maria submitted, the absence of evidence from Paula does not give rise to an inference that her evidence would not have assisted Maria’s case. I reject Michael’s submission to the contrary. [15]

Dr Shearer’s evidence was narrow in scope. As explained at [70]-[71] below, Michael did not challenge in cross-examination the only aspect of that evidence that is material to the issues to be determined in these proceedings.

Michael was a most unsatisfactory witness, whose credit was seriously undermined by: (1) inconsistencies within his own evidence, some of which affected aspects of his evidence that were of central importance to his defence and cross-claim in these proceedings; [16] (2) his exaggeration of the extent of the work that he claimed to have done on the Haberfield property during his childhood and teenage years compared to his sisters; [17] (3) his exaggeration of the costs that he claimed to have incurred in extending the Haberfield property in later years; [18] (4) his evasiveness in cross-examination, during which he sought to avoid answering questions about the substance of the 2018 deed by asserting that the deed was not made by Maria (who sues to enforce it) but by his sisters (who Michael asserted were “trying to remove me from my rightful inheritance”); [19] (5) his frequent attempts to avoid answering questions by directing his responses to a point in time other than the time to which the question had been directed, or directing his responses to a conversation other than the one to which the question had been directed, if he felt that the answer to the question asked would not assist his defence and cross-claim; [20] and (6) his readiness at times during his cross-examination to say anything that he thought in the heat of the moment might assist his defence and cross-claim. [21] For all of those reasons, I do not accept Michael’s evidence unless it is contrary to his own interests, corroborated by contemporaneous documents or some other reliable source, or consistent with the inherent probabilities.

Melanie’s evidence was of narrow compass. Ultimately, I have not accepted her evidence about the two conversations she deposed to which have a bearing on the resolution of some of the issues in dispute in these proceedings. [22]

Maria married her late husband, Michele, in 1961. In 1966, Maria and Michele purchased a property at 2 Crescent Street, Haberfield, as joint tenants. [23] They moved there with their eldest child, Daniela, who had been born in 1964. Three more children followed – Paula (born in 1968), Adriana (born in 1971), and Michael (born in 1972). The Haberfield property was the family home in which all of the children grew up. Daniela, Paula and Adriana each lived at the Haberfield property until they were married. Michael lived at the Haberfield property during the whole of his childhood and school years. Michael’s evidence refers to a period of time in which he lived in other properties owned by “the family”. According to Maria’s evidence, this was the period between about 1993 when Michael moved out after finishing school in 1992, and about 2005 when Michael moved back into the Haberfield property with Melanie. Michael then remained at the Haberfield property together with Melanie until about September 2016, when he moved out before moving back in again in about May 2018 in circumstances to which I refer later in these reasons. [24] Maria continues to live in the Haberfield property today.

Throughout her marriage until about five years before Michele passed away, Maria worked part-time as a hairdresser in addition to being the homemaker for the family.

Michele worked in a marble, granite and stone business that he had established together with his brothers, Eugenio and Attilio, through the corporate entity Marmo Terrazzo Products Pty Limited, [25] which had been registered in 1972. Adriana gave evidence that the business was transferred to a new entity – MTP Marble & Granite Pty Limited [26] – in about 1996 after Marmo Terrazzo received a workers compensation claim in 1994 that it could not afford to pay. Finewest Holdings Pty Limited [27] and Michele were the shareholders of MTP Marble & Granite. Michele was the shareholder of Finewest Holdings. Marmo Terrazzo was deregistered in 1997.

Michael claims to have done extensive work on the Haberfield property together with his father during his childhood and teenage years, and during his adult life, relying on promises that he says his father made to him to the effect that Michael was working to improve the property that he would one day inherit.

According to Michael’s evidence, he and Michele worked together on the Haberfield property for many hours a week during the evenings and weekends over many years, improving the property and increasing its value by modifying the front yard, concreting the back yard and building a gazebo, building a large garage on the ground floor, building a granny flat, installing a lift shaft and an additional level to the home, and carrying out extensive internal renovations to the bathrooms, bedrooms, living rooms and kitchen.

Michael gave evidence that he did the following work on the Haberfield property together with his father during his childhood (between the ages of 5 and 17 years, during the period between about 1977 and 1989):

Michael gave evidence that he was not paid for any of this work, and that his father told him that it was worth it “because you are building your home” and that “you have to work hard so that it will all be yours one day”. According to Michael’s evidence, his father said words to this effect to him on many occasions, including in the presence of Maria. Michael also gave evidence that several of Michele’s friends helped them with the work on the Haberfield property, and Michele told them that “this house will be my son’s one day”.

Michael gave evidence that, during his childhood and early teenage years, he was also working with Michele at Marmo Terrazzo without pay, and working with Michele, Attilio and Eugenio on the demolition of existing terraces and the construction of a factory and stockyard at 44-46 Moore Street, Leichhardt, which Michele and his brothers had purchased for the purpose of Marmo Terrazzo’s business.

According to Michael’s evidence, the work that his father required of him increased when he was in year 10 at school (in 1988), and his father told him to skip school in order to work on the Haberfield property and at Moore Street, Leichhardt. Michael gave evidence that he had to repeat year 10 because he had missed too many days of school.

Michael gave evidence that, while he was completing years 11 and 12 at school (in 1990 and 1991), Michele required him to assist at the marble factory every weekday afternoon and on Saturdays. According to Michael’s evidence, he asked to be paid for this work and Michele responded by saying words to the effect, “why do you need money? You know that everything will be yours, all my properties and this business will be yours”.

Michael gave evidence complaining that Michele required him to work so hard that he was rarely able to go out with his friends, and that he had cried about this from time to time during his teenage years.

Michael gave evidence that he began working full-time at the marble factory from 1992 after he completed year 12 at school in 1991. According to Michael’s evidence, he was working at the factory six days a week, and working on “the properties” during any time that he spent away from the factory. In his affidavit sworn on 22 February 2023, Michael deposed that:

Maria gave evidence that Michele began renovating the Haberfield property shortly after they purchased it, beginning with excavation work under the house in 1966. The excavation work was completed by 1970, before Michael was born. Michele employed qualified builders, carpenters and other tradesmen to do the work. Michele had neither the time nor the skills to undertake any of the structural or major works. Michele’s involvement in the work was limited to assisting the tradespeople by providing his manual labour when he was at home on the weekends. During the week, Michele required dinner when he returned from working at Marmo Terrazzo. He went to sleep after dinner, as he rose very early every morning to return to the marble factory. Michele did not work on the Haberfield property in the evenings.

According to Maria’s evidence, Michele required all of his children to assist with the manual labour that he did to help the tradespeople at the Haberfield property, but most of the burden of this fell on his eldest children Daniela and Paula. Daniela was required to lift bricks and move them from one part of the Haberfield property to the other, while Paula’s job was to clean all the mess that was left by the tradesmen. Michele did not have the same expectations of Adriana and Michael, as most of the major renovation work to the Haberfield property had been completed by the time they were old enough to help. Michael did help out from time to time at the Haberfield property after finishing school in 1991, but he did not do renovation or construction work. All of that work had been finished by the time Michael finished school, until about 2005 when Michele decided that he wanted to start building an additional level on the home that he had been planning for some time. In relation to Michael’s claim to have worked on building a carport at the front of the Haberfield property and reinforcing concrete for the main stairs of the house in the period after 1991, Maria gave evidence that there is no carport at the Haberfield property and the main stairs were completed at some time before 1989 when Paula was married. Maria also gave evidence that Michael moved out of the Haberfield property in about 1993 to live in a property owned by Michele and his brothers at 38-40 Moore Street, Leichhardt. Michael did not move back into the Haberfield property until about 2005.

Maria denies that Michael did the work described in his evidence referred to at [45] above, save for carting some bricks and tiles around the Haberfield property which she says was labouring work that was done by all of the children. Michele engaged qualified tradespeople to do the other work referred to by Michael, which Michael lacked the skill and experience to do. According to Maria’s evidence some of that work referred to by Michael was done before he was even born, or at a time when he was very young and would not have had the physical strength to do the work.

Maria gave evidence that Michael and Adriana did go to the marble factory with Michele, their Uncle Attilio, and two of their cousins on weekends during Michael’s childhood, but this was to play and not to work. Maria expressed the view that Michele would not have allowed Michael or any child to work with the heavy machinery at the marble factory. Maria recalls Michele and Attilio constantly getting angry at Michael and his cousins Silvio and Glorio because they would misbehave when they accompanied Michele and Attilio to the factory. Michael may have worked a few hours at the factory on a Saturday or during school holidays from time to time during his later teenage years while he was still at school, but he did not work at the factory after school every weekday. It was Adriana who was working full-time at the factory with Michele after leaving school in year 10, while Michael completed years 11 and 12 at school. According to Maria’s evidence, Michele had encouraged Michael to complete school because he was immature and Michele wanted him to get an education. Michael first started working at the marble factory full-time after finishing school.

Michael’s oldest sister, Daniela, moved into the Haberfield property with her parents at the age of two years when they first purchased the property. According to Daniela’s evidence, Michele constantly had workers at the property. The skilled work was carried out by qualified tradesmen, and Michele did some of the unskilled labouring work from time to time. She and her younger sister Paula were made to help by carrying bricks and cleaning up after the workers. Daniela disputed Michael’s evidence portraying his childhood and teenage years as dominated by work that his father required him to do on the Haberfield property. Daniela gave evidence that Michael’s account did not accord with her recollection of his childhood at all. Daniela lived at the Haberfield property with her parents, her sisters, and Michael, until 1987.

Michael’s youngest sister, Adriana, is only one year older than Michael. Adriana gave evidence that she spent most of her childhood playing with Michael and two of her cousins who were all very close in age. Adriana lived at the Haberfield property until 1995 when she left home after getting married at the age of 24.

Adriana gave evidence that she did not see Michael working on the Haberfield property for many hours. She recalled a lot of workmen coming and going from the property while she was growing up. According to Adriana’s evidence, Michele worked at Marmo Terrazzo during the day and employed qualified tradesmen to do the substantial work on the Haberfield property. Adriana saw her father paying the tradesmen, handing them cheques or cash. Michele did some labouring work, but not a great deal. Michele did not do any of the substantial works at the Haberfield property, with or without Michael. Michele required dinner to be ready by 6:00pm in the evenings when he returned home from work at the marble factory. The children would do their homework after dinner, and then go to bed. Michele and Michael did not spend their evenings working on the Haberfield property.

Adriana gave evidence that she does not recall seeing Michael doing any of the work described in his evidence referred to at [45] above. According to Adriana’s evidence, most of those works were completed when Michael was too young and physically too small to have assisted with the works. For example, Adriana referred to photos which she says show that the garage had been constructed by 1977 (when Michael was five years old) and the front yard had been concreted by 1980 (when Michael was eight years old). That is broadly consistent with Maria’s evidence that, to the best of her recollection, the back yard was finished by about 1976 and the front yard was completed by about 1978. In response to Michael’s evidence to which I have referred at [51] above, Adriana deposed that there is no carport at the Haberfield property, and that the main stairs had been completed before Michael was old enough to have been able to assist with that work. Again, that is consistent with Maria’s evidence.

Adriana also gave evidence that she and Michael went to the Marmo Terrazzo marble factory during their childhood together with their cousins to play rather than to work. Michael and his cousins would constantly get into trouble for running around and getting in the way of Michele working. According to Adriana’s evidence, she was always with Michael and he did not work with Michele at the marble factory. It was their older sisters, Daniela and Paula, who were required to do cleaning work there during Adriana and Michael’s childhood years.

Adriana left school in 1987 and started working full-time at Marmo Terrazzo. Adriana gave evidence that Michael did not skip school in year 10 (in 1988 and 1989) in order to work on the Haberfield property and on the properties at Moore Street, Leichhardt. Nor did he work at the marble factory on weekday afternoons. When he did come to the factory from time to time, Michael liked riding on the forklift rather than doing any work. Adriana recalls Michele encouraging all of his children to go to school and study hard so that they would not have to struggle like he had done.

Each of Maria, Daniela, and Adriana gave evidence that Michael frequently went out with his friends during his teenage years, and that Michele did not prevent him from doing so.

Each of Maria, Daniela and Adriana gave evidence that they never heard Michele make the promises that Michael claims were made to him concerning his inheritance. Maria, who owned the Haberfield property together with Michele as joint tenants, denies making any such promises to Michael. Maria expressed the view that Michele would never have promised anything to any of their children just in return for them doing work, because Michele expected that all of them (and Maria) would do what he required without question. It is Maria’s understanding that Michele did not believe that his children needed to be paid for the work they did because he provided for all of their needs, gave them money to go out, and bought cars for them. Responding to Michael’s evidence to which I have referred at [46]-[49] above, Maria gave evidence that:

In her affidavit sworn on 17 July 2023, Adriana deposed:

In her affidavit sworn on 17 July 2023, Daniela deposed:

As I have explained earlier in these reasons, Michael cross-examined Maria over approximately one and a half days. To the extent that the cross-examination touched on Maria’s evidence to which I have referred at [52]-[55], [62], and [63] above, Maria adhered to the substance of her evidence. Towards the end of the cross-examination, Maria gave the following evidence:

Michael conducted a relatively short cross-examination of Daniela which spanned two hearing days. Michael did not challenge any of Daniela’s evidence referred to at [56], [62], [63] and [65] above.

In cross-examining Adriana, Michael did not challenge her evidence referred to at [64] above that she had no recollection of ever hearing her father tell Michael that “this will all be yours” or words to that effect. To the very limited extent that Michael challenged Adriana’s evidence referred to at [57]-[63] above, Adriana adhered to the substance of that evidence in cross-examination.

In his cross-examination of Maria conducted over one and a half days, Michael did not put to Maria that she had ever heard Michele say that the Haberfield property would be his one day. Nor did Michael give evidence that Maria herself ever said anything to him suggesting that he alone would inherit the Haberfield property one day. Under cross-examination by senior counsel for Maria, Michael merely asserted that Maria and his sisters knew that his father wanted him to inherit the Haberfield property.

None of Michele’s friends identified by Michael as having worked on the Haberfield property were called to give evidence, [28] with the exception of Dr Alex Shearer. Dr Shearer, who has owned and lived in the property next door to the Haberfield property since 1965, was called as a witness in Maria’s case. Dr Shearer gave evidence that there was always work being done on the Haberfield property, and that Michele had workers there all the time. Dr Shearer did not recall seeing Michael working on the property in all of the years that he lived next door, although he could not deny that Michael may have done some work as he had not paid particular attention to who was doing the work at any given time.

Dr Shearer also gave evidence that Michele had never said in his presence anything to the effect that the Haberfield property would one day be Michael’s property. Dr Shearer deposed that he believed he would have recalled if Michele had said anything along those lines, as Dr Shearer would have considered it strange for Michele to plan to give the home to only one of his four children. Michael did not challenge this aspect of Dr Shearer’s evidence in cross-examination.

Under cross-examination, Michael maintained that he undertook all of the work on the Haberfield property described in his affidavit evidence summarised at [43]-[51] above, and that his father had promised that the Haberfield property would be his in the future. Michael accepted that his father engaged tradespeople, but maintained that he assisted his father and the tradespeople. Michael denied deliberately overstating the level of his contribution to that work. Ultimately, Michael’s evidence boiled down to this exchange with the cross-examiner:

For the following reasons, I reject Michael’s evidence about the nature and extent of the work that he claims to have done at the Haberfield property during Michele’s lifetime.

Michael’s evidence is uncorroborated and inconsistent with the evidence of Maria, Daniela and Adriana. Each of Maria, Daniela and Adriana gave evidence that Michele employed skilled tradespeople to carry out the work at the Haberfield property, that Michele did not carry out the work himself other than by providing his manual labour to assist the tradespeople, that all of the children were required to assist, and that Michele did not work on the property or require the children to do so during weekday evenings after he had already worked a long day at the marble factory. There are differences between the evidence of Maria, Daniela and Adriana of the kind that is to be expected given their different ages and their different roles within the household during the relevant period of time, and bearing in mind that more than 30 years have passed since that period. The substance of the evidence that each of them gave about the improvements to the Haberfield property was nevertheless broadly consistent. Their evidence is inherently probable, whereas Michael’s evidence is inherently improbable. Michele was a stonemason. It is likely that he had some understanding of the skill required to carry out building work of the kind that was done at the Haberfield property during his lifetime. The Haberfield property was Michele’s family home, and a valuable asset. It is inherently improbable that Michele carried out such work at the Haberfield property himself during evenings and on weekends, after he had worked long hours at Marmo Terrazzo, enlisting the help of Michael, who was a child or teenager for most of the period in which the work was carried out and had no relevant skills or qualifications to contribute to the work as a young adult. As referred to at [72] above, Michael ultimately accepted in cross-examination that Michele did engage tradespeople to carry out the work. I prefer the evidence of Maria, Daniela and Adriana to the evidence of Michael for the reasons explained at [23]-[38] above.

In an attempt to defend his claim to have done more work on the Haberfield property than his sisters under cross-examination, Michael asserted that he was the only one at home “to take all the brunt” of the work because his sisters left home at an early age to get married. That assertion is contrary to Daniela’s evidence that she moved out of home in 1987, Maria’s and Adriana’s evidence that Paula moved out of home in 1989, Maria’s evidence that Michael moved out of home in 1993, and Adriana’s evidence that she moved out of home in 1995. I accept that unchallenged evidence of Maria, Daniela and Adriana, which establishes that Michael’s sisters lived at home throughout all of his childhood, and that at least one of his sisters lived at home during his teenage and young adult years. That covers the whole of the period in which Michael claims to have done most of the work on the Haberfield property described in his affidavit. Indeed, Michael moved out of the Haberfield property even before Adriana. I formed the impression during this part of Michael’s cross-examination that he was prepared to say anything that he thought in the heat of the moment would support his defence and cross-claim.

For those reasons, I find that the work that Michael did at the Haberfield property involved unskilled work of the kind that all of the children of Michele and Maria were required to do while they were living in the family home. I do not feel actual persuasion [29] that Michael was required to do work that was more onerous or time consuming than the work required of his sisters while he was living at home. Nor do I feel actual persuasion that Michael did any material work on the Haberfield property after he moved out of home in 1993.

As senior counsel for Maria submitted, the Court is required to scrutinise very carefully Michael’s evidence that Michele promised him that the Haberfield property (together with the business and other properties) would one day be his. As I have already mentioned, each of Maria, Daniela and Adriana have given evidence denying that Michele made any such promises to Michael in their presence. Michele is obviously unable to respond to Michael’s uncorroborated evidence of the promises allegedly made several decades ago. [30]

The alleged oral promises are the foundation of Michael’s proprietary estoppel claim in these proceedings. As Hammerschlag J (as his Honour then was) said in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd: [31]

For the following reasons, I do not feel actual persuasion that Michele made the promises alleged by Michael.

First, Michael’s evidence based on a recollection that he claims to have of things said to him so many years ago is inherently unreliable due to the well-known fallibility of the human memory, which ordinarily increases over time, “particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should or could have been said”. [32]

Second, it is inherently improbable that Michele made the alleged promises to give the Haberfield property (together with the business and other properties) to Michael alone, because this would have had the grave consequences of excluding his three daughters from inheriting any interest in their family home or his other assets, in circumstances where Michael’s contribution to the property was no greater than the contribution made by his sisters, as I have found above.

Third, the alleged promises are inconsistent with the terms of Michele’s last will made on 11 July 2007.

By clause 1 of his last will, Michele appointed Maria to be his sole executrix and trustee. In the event that Maria predeceased him, or died before a grant of probate, Michele appointed Michael as his executor and trustee.

By clause 3, Michele gave the whole of his real and personal property to Maria contingent upon her surviving him for more than 30 days. If Maria predeceased him or failed to survive him for more than 30 days, then Michele gave all of his real and personal property to his trustee to pay all of his debts, funeral and testamentary expenses and any taxes or duties, and to hold the residue on trust for Michael (as to a one half share) and for Paula, Adriana and Daniela (as to the other half share, to be divided equally between them as tenants in common).

Maria made a will at the same time which mirrored the terms of Michele’s will, leaving everything to Michele if he survived her and otherwise to Michael (as to a one half share) and to her three daughters as tenants in common (as to the other half share).

Michele’s execution of the will was witnessed by Mr John Lakos, solicitor, of Lakos & Company Lawyers, who had prepared the will.

Maria gave evidence that she recalled attending Mr Lakos’ office together with Michele a couple of times and discussing with him what to put in their wills. She and Michele agreed on the terms of their wills after receiving advice from Mr Lakos, and they signed those wills in 2007. Consistently with her evidence to which I have referred above that she never heard Michele promise the Haberfield property to Michael, Maria gave evidence that there was never any discussion or agreement between her and Michele that everything would go to Michael after they both passed away.

The inconsistency between Michael’s evidence of Michele’s alleged promises and the terms of Michele’s last will is a further reason why it is inherently improbable that Michele made the promises.

Fourth, Michael’s evidence of the alleged promises is inconsistent with his own evidence of his understanding of Michele’s last will. In his affidavit sworn on 22 February 2023, Michael gave evidence that he was aware of the terms of his father’s will at the time it was made, and the will made by Maria at the same time, which Michael understood meant that he was to receive half of the estate of the survivor of his parents. Michael deposed that (emphasis added):

However, Michael’s evidence of his understanding in 2007 that “half of everything was to go me” under the mutual wills made by Michele and Maria in September 2007 is fundamentally inconsistent with his evidence that he expected based on the promises allegedly made by his father that he would inherit everything, including the Haberfield property.

For all of those reasons, Michael has failed to establish on the balance of probabilities that Michele promised or represented to him during his childhood and teenage years, or during his adult life in the years after 1991, that the Haberfield property would one day be his.

As I have already mentioned, Michael moved out of the Haberfield property in about 1993. When he returned in 2005, Melanie moved into the Haberfield property together with him.

It is not in dispute that Michele had been planning an extension to the Haberfield property to construct an additional storey on the house for many years. Those works commenced in about 2007.

According to Michael’s evidence, Michele did the work for the extension himself until March 2008, when he asked Michael to take over the work after receiving a letter from Ashfield Municipal Council stating that the work was unauthorised. Michael deposed that Michele and Maria asked him to build the extension so that he could live there and look after Michele and Maria in their old age. Michael gave evidence that he recalled both Michele and Maria saying to him on a number of occasions that “whatever money you spend on these works, you can get it back”. Michael then arranged for a builder, Mr Andrew Stanno, to take on the work and Michael himself “took over the project management aspect” of the extension in addition to helping Mr Stanno construct the lift shaft and rectify non-compliant works that Michael says had been done by Michele.

Melanie gave evidence that, on many occasions after moving into the Haberfield property together with Michael in 2005, she heard Michele say to Michael (in English) words to the effect of: “Don’t worry about money, everything is going to you”, “Everything is yours”, and “Just work on the house and the business because everything is going to you.” Melanie adhered to that evidence in cross-examination.

Maria and Adriana each gave evidence that Michele engaged qualified tradespeople to carry out the extension works, as had been his practice in the past. Each of them gave evidence that the works were almost completed before Michele died, and that Michele paid for the works out of funds of MTP Marble & Granite. Maria gave evidence that the only work that Michael arranged after Michele passed away in September 2009 was the tiling of the new level of the home, completion of the finishes in the bathroom, the fit out of the kitchen, and internal painting. All of the stone and marble was provided by MTP Marble & Granite’s factory. Adriana gave evidence to similar effect.

In cross-examination, Michael accepted that Michele or MTP Marble & Granite had paid for all of the extension works up “up to a certain stage” after which Michael said that Michele could not afford to keep paying for the works. Michael said that he then began paying for the works because his company Safespot Australia Pty Limited was “making a fair bit of money”.

According to an ASIC extract for Safespot Australia Pty Ltd which was admitted into evidence, that company was registered on 23 May 2007. Its directors and shareholders were Michael and Mr Davide Consalvo. Mr Consalvo ceased to be a director on 27 December 2007, but continued to be an equal shareholder in the company with Michael.

In his affidavit sworn on 22 February 2023, Michael deposed that he “took over the project management aspect” of the extension in about March 2008 because his father had become sick and had low energy, and “on the understanding and expectation that it would ultimately be mine, just as my dad told me.” Under cross-examination, Michael adhered to his affidavit evidence that he took over the project management of the work, and paid for some of the work, because he had been told by his father that he was going to inherit the property. However, Michael also said that he did the extension work because he wanted to make the Haberfield property more comfortable for himself and Melanie to live in, and that Maria had agreed that they could live there. At the same time, Michael adhered to his affidavit evidence that Maria told him that, if he spent money on the extension works, he could “get it back”. Maria denied this.

Michael tendered a collection of invoices bearing dates between April 2008 and July 2011 which he contends demonstrate that he spent more than $700,000 on the extension to the Haberfield property. Some of those invoices make no reference to the Haberfield property. Others expressly refer to a different property. Michael was unable to explain this under cross-examination, asserting that references to different properties were a “misprint”. It is inherently unlikely that the person preparing the invoice “misprinted” the address of the property where the work had been done by printing or typing an entirely different address. Other invoices relate to items of furniture purchased for use by Michael and Melanie when they moved in to the new level of the Haberfield home. Under cross-examination, Michael was unable to offer any meaningful explanation for the inclusion of such invoices in his calculation of the moneys that he claims to have spent in carrying out the extension works. As Michael accepted in cross-examination, most of the invoices are addressed to Safespot Australia.

Michael gave evidence under cross-examination that most of the invoices for the Haberfield extension works were paid for by Safespot Australia. Melanie gave evidence to the same effect. Michael characterised those payments out of Safespot Australia’s account as having been made out of his personal funds because:

As I have mentioned above, Michael was the sole director of Safespot Australia, but only one of two shareholders, during the period in which the Haberfield extension works were completed. There is no evidence of any running loan account between Michael and the company. There is no evidence that any payments made by the company for the Haberfield extension works were accounted for in the company’s records as funds having been paid by the company to Michael, or as having altered the balance owing under any loan between Michael and the company.

During his cross-examination of Maria and Adriana, Michael presented numerous invoices to them. Neither Maria nor Adriana disputed the existence of the invoices. Maria acknowledged that Michael might have caused Safespot Australia to pay the invoices, adding “and the purpose for that was that so that you could live upstairs, which you did rent free for over ten years, so that’s all I [sic] can be said about it”. Maria said that Michele had not included her in decisions about the extension works while he was alive and that, after Michele’s death, Michael “didn’t include me in what needed to be done. You carried on the work so that you could go and live upstairs”. Michael asked Maria, “do you agree that I spent $664,000 on your property?”. Maria answered: “I can’t say yes or nay. I don’t know.” A short time later, Michael asked Maria whether he had spent $860,000 on the Haberfield extension works. Maria answered: “As I said before, it’s not something that I am in a position to know.” Adriana adhered to her evidence that she believed that Michele had paid for the works using funds of MTP Marble & Granite. As explained in her affidavit, Adriana’s belief is founded on her recollection of having seen payments for the Haberfield extension works recorded in the accounts of MTP Marble & Granite when she was working at that company, including for invoices issued to Safespot Australia.

The evidence summarised at [92]-[103] above does not provide a sufficient basis for the Court to make any findings about the total cost of the Haberfield extension works, or the extent to which Safespot Australia paid for the costs of those works. Nor does the evidence provide a sufficient basis for the Court to characterise any payments by Safespot Australia as payments out of Michael’s personal funds. Michael bears the onus of proving his contention that he carried out and paid for the Haberfield extension works, as this is an element of his proprietary estoppel claim in these proceedings. There is no dispute that Michael instigated and managed some of those works in the period after Michele’s death. However, Michael has failed to discharge his onus of proving that he incurred the costs of those works.

Even if I had been satisfied that Michael carried out extension works at the Haberfield property at his own personal cost, I would not have been satisfied that he did so on the understanding and expectation that the Haberfield property would ultimately be his, as he claims Michele told him over many years. [33] For the reasons I have already explained, Michael has not discharged his onus of proving that Michele made any such promises or representations. [34]

The principles referred to at [77]-[78] above apply equally to Melanie’s evidence that Michele told Michael in her presence that “[e]verything is yours” and “everything is going to you”. [35] Melanie’s evidence of those alleged representations said to have been made approximately 20 years ago between 2005 and Michele’s death in 2009 is inherently unreliable due to the passage of time. Moreover, it is inherently improbable that Michele made the representations alleged by Melanie, which would have excluded his daughters from inheriting any of his assets, contrary to the terms of the will that he made in July 2007. The alleged representations are fundamentally inconsistent with Michele’s last will, and also with Michael’s own evidence, given against his interest in the proceedings, of his understanding of the will at the time it was made. [36] For those reasons, I am not satisfied on the balance of probabilities that Michele said to Michael in Melanie’s hearing at any time during the period from 2005 to 2009 that “[e]verything is yours” and “everything is going to you”.

For completeness, I record that I do not regard as credible Michael’s uncorroborated evidence that Michele and Maria told him that he could “get back” any money that he spent on the Haberfield extension works because it is inherently improbable that Michele and Maria would have told Michael that he could be reimbursed for any expenditure he made on the Haberfield property at the same time as promising that the property would be his by way of inheritance in recognition of his work on the property, as Michael claims. The two alleged promises are inconsistent. Moreover, Michael’s allegation that his parents promised to repay him for any money that he spent on the Haberfield extension works is inconsistent with the terms of the deed that Michael signed in August 2018 to which I refer at [259]-[277] below. For the reasons explained at [207]-[297] below, I have found that Michael signed that deed in August 2018 freely and voluntarily, after having the benefit of independent legal advice, and without suffering from any special disadvantage which prejudiced his ability to make decisions about what he considered to be in his own best interests.

In his affidavit sworn on 22 February 2023, Michael deposed that:

Melanie gave evidence that she remembered an occasion in August 2009 when she was sitting at her desk at the office in Moore Street together with Michele, who was sitting at his own desk, when Michele rang his solicitor, Mr Lakos and she heard them have a conversation in which Michele told Mr Lakos that he needed to speak with him “because I am worried and need to make changes to my will” and Mr Lakos told Michele, “You can’t do this over the phone. You need to come in and see me.” According to Melanie’s evidence, Michele’s condition deteriorated shortly after this conversation and he went to hospital where he later passed away.

Adriana gave evidence that Michele was hospitalised for about one month before he died. That is broadly consistent with evidence given by Maria that Michele went into hospital in mid-August 2009 and never came home. According to Adriana’s evidence, Mr Lakos visited him in hospital during that period on one occasion when Adriana was also present. Michele did not discuss changing his will with Mr Lakos during that visit.

Maria gave evidence that Michele did not discuss with her changing their mutual wills that they had made in 2007 at any time before he died. Maria also gave evidence of her view that, if Michele had decided to change his will before being hospitalised in August 2009, he would have made sure that it was changed and would also have ensured that Maria made corresponding changes to her will.

Michael’s evidence referred to at [108] above is not corroborated by Melanie’s evidence. Melanie does not even place Michael in the room at the time of the alleged conversation and sheds no light on the nature of the change that Michele is said to have told Mr Lakos he was contemplating making to his will. There is no medical or other evidence suggesting that Michele was incapable of enlisting the services of Mr Lakos to change his will, if he had wished to do so, during the period in which he was hospitalised in the weeks leading up to his death. Michele did not do so. There is no evidence of any material change in circumstances since Michele had made his last will in July 2007 that might have been likely to cause him to consider changing his will to leave the whole of his estate to Michael, excluding his three daughters. I do not regard Michael’s involvement in the Haberfield extension works for the construction of an additional storey in which Michael intended to live with Melanie as a relevant change in circumstances, irrespective of whether or to what extent Safespot Australia had paid for those extension works prior to August 2009. It is therefore inherently improbable that Michele had formed an intention to change his last will in August 2009, or that he telephoned Mr Lakos about this in August 2009. It is even more improbable that he did so without discussing his intention with Maria, who stood to inherit all of his assets under their mutual wills made on 11 July 2007. I do not accept Michael’s uncorroborated evidence of the alleged conversation between Michele and Mr Lakos for all of the reasons explained at [38] above. I also reject Melanie’s evidence as contrary to the inherent probabilities and unreliable due to the passage of time. For all of those reasons, I find on the balance of probabilities that Michele did not express to Mr Lakos, or to any other person in about August 2009, an intention to change his will made on 11 July 2007.

Michele passed away on 7 September 2009. He had not changed his last will made on 11 July 2007.

Michele’s interest in the Haberfield property passed to Maria as the surviving joint tenant by right of survivorship, and his remaining assets passed to Maria as the sole beneficiary of his estate in accordance with his last will dated 11 July 2007.

Michele’s estate comprised a half share in property at 151-153 Parramatta Road, Annandale, [37] a half share in property at 44-46 Moore Street, Leichhardt, [38] shares in Finewest Holdings, and shares in MTP Marble & Granite.

As referred to earlier in these reasons, MTP Marble & Granite is the corporate entity through which the marble, stone and granite business was conducted, and Finewest Holdings was the majority shareholder in MTP Marble & Granite. In the course of applying for probate of Michele’s estate, Maria received advice from her solicitor, Ms Therese De Pasquale, that both companies were the subject of fixed and floating charges in favour of National Australia Bank. Both companies were the subject of a creditors’ voluntary winding up in 2012 after Michael established a new company to conduct the business and appropriated the companies’ stock and other assets for that purpose as referred to later in these reasons. [39]

The property at 151-153 Parramatta Road, Annandale had been purchased by Michele, Eugenio and Attilio, as joint tenants, in the early 1960s. Attilio passed away in the early 1990s. Michele subsequently took steps to sever the joint tenancy between himself and Eugenio so that they owned the property as tenants in common. Michael asserts, and Adriana denies, that Adriana advised or prompted Michele to sever the joint tenancy. That dispute is irrelevant to the issues to be determined in these proceedings, and I make no finding about it. At the time of Michele’s death, the Annandale property was rented out, yielding a total rental income of approximately $8,000 per month.

The property at 44-46 Moore Street, Leichhardt was one of the premises from which the marble, stone and granite business was conducted. It had been purchased by Marmo Terrazzo in about 1981, and had been transferred to Michele and his brother Eugenio in about 1996 at the same time as the business was transferred from Marmo Terrazzo to MTP Marble & Granite.

Following Michele’s death, his interest in the properties at 44-46 Moore Street, Leichhardt and 151-153 Parramatta Road, Annandale passed to Maria pursuant to the terms of Michele’s last will, and the remaining 50 per cent interest in each property was held by Michele’s brother, Eugenio.

Maria also inherited from Michele two apartments in Rome, Italy.

In his affidavit sworn on 22 February 2023, Michael deposed that he understood at the time of Michele’s death that his estate had passed to Maria because Michele had not been able to change his will as Michael claims he intended to do, and that “mum would give me the properties anyway in accordance with what I had been promised and all the work I had done”. For the reasons I have already explained above, I am not satisfied that Michele had any intention at the time of his death to change his last will made on 11 July 2007.

The evidence discloses no basis for the expectation that Michael claims to have had that Maria would act contrary to the terms of her last will made on 11 September 2007, of which Michael was aware, [40] by taking steps to “give me the properties anyway”. Maria denies having any intention to change her will after Michele died. Michael did not give evidence of any promise or statement made by Maria to him in the aftermath of his father’s passing that she would relinquish her entitlement to the properties by transferring all of them to Michael, excluding his sisters who otherwise stood to inherit 50 per cent of the properties (as tenants in common) under Maria’s will dated 11 July 2007. When pressed in cross-examination, Michael was unable to recall any occasion on which Maria had made any such promise or statement in immediate aftermath of Michele’s death, or at any other time. In cross-examination, Michael acknowledged that Maria did not say to him after his father’s death that she intended to change her will.

Maria denies that she had any intention to change her will at about the time Michele died. Maria gave the following evidence:

Maria also gave evidence that Michael was pressuring her to transfer all of the properties to him from the time that Michele passed away. According to Maria’s evidence:

Maria also gave evidence that she expressed the view to her solicitor, Ms Therese De Pasquale, at the time, that she wanted someone to help her with day-to-day things because she felt overwhelmed and did not even know how to open a bank account. On Ms De Pasquale’s advice, Maria considered appointing Adriana as her attorney because she did not like the pressure that Michael was putting on her and “Adriana knew how to handle him”. Maria gave evidence that she instructed Ms De Pasquale to prepare a power of attorney in favour of Adriana, but she did not sign it “due to the pressure I felt from Michael”.

During his extensive cross-examination of Maria over one and half days, Michael did not challenge her evidence referred to at [124]-[125]. Michael did not challenge Maria’s evidence in cross-examination that she had transferred her interest in the Leichhardt and Annandale properties to Mamro because Michael “knew how to handle me, how to twist me around” (given in response to a question about whether Maria had owned the whole or only a half interest in those properties). However, Michael did put forward his own different account of how Maria’s interest in the Leichhardt and Annandale properties came to be transferred to Mamro. In his affidavit sworn on 22 February 2023, Michael deposed that Maria had said to him in early 2010 words to the effect “son you should take the Moore Street Property and Annandale Property before your sisters do”. Although he could not recall whether Maria expressed any reason why she thought that he should “take” those properties, Michael deposed that he believes that it was “because she felt that I deserved them because of all of the work I had been doing on the properties and because I was always looking after her.”

Maria’s evidence that she had no intention of changing her 2007 will in the aftermath of Michele’s death is consistent with a contemporaneous file note made by Maria’s solicitor, Ms Therese De Pasquale, to which I refer below. I accept Maria’s evidence that she had no such intention.

It is therefore inherently improbable that Maria wanted Michael to “take” the Annandale and Leichhardt properties, which would have deprived his sisters of any prospect of receiving the interest in those properties that Maria had bequeathed to them under her 2007 will.

I accept Maria’s evidence that Michael was pressuring her to transfer the Annandale and Leichhardt properties to him, as this is also consistent with Ms De Pasquale’s contemporaneous file note of her conference with Maria on 18 January 2010. That file note records that Ms De Pasquale explained to Maria that Michele had owned a half interest in the Annandale and Leichhardt properties, and that his interest in those properties would be transferred to her. Ms De Pasquale also explained to Maria that Michele had been the sole shareholder of Finewest Holdings, and that Maria would therefore become the sole shareholder of that company which in turn owned 98 per cent of MTP Marble & Granite. Michael owned the other 2 per cent of MTP Marble & Granite. The file note continues:

Ms De Pasquale’s meeting with Maria on 18 January 2010 was followed by a further meeting later that afternoon with Maria, Michael, Daniela, Paula and her husband, and Adriana and her husband. I refer to Ms De Pasquale’s contemporaneous file note of that meeting at [132] below.

For those reasons, and for the further reasons at [38] above, I reject Michael’s evidence that Maria told him to “take” the Annandale and Leichhardt properties. As I have already stated, I accept Maria’s evidence concerning her intentions and the pressure that Michael was exerting. I find that, from the time of Michele’s death, Michael pressured Maria to transfer her interest in the Leichhardt and Annandale properties to him, which she ultimately did as will become apparent below. [41]

There is no dispute that Michael stepped into the role of managing the MTP Marble & Granite business after Michele died. Adriana, who had worked in the business for some years, endeavoured to assist Michael, at Maria’s request. Adriana gave evidence that she became concerned about how the business was being run and about funds being withdrawn from the company for extraneous purposes. I accept Adriana’s evidence about her concerns, which is corroborated by Maria’s evidence that Adriana expressed those concerns to her at the time and also by Ms De Pasquale’s contemporaneous file note of the meeting that she held with the family on 18 January 2010. That file note records that Ms De Pasquale explained to the family members the assets that were to be transferred to Maria under the terms of Michele’s will, including 100 per cent of the shares in Finewest Holdings which in turn owned shares in MTP Marble & Granite:

The file note also records Michael’s reaction to Maria’s proposal to appoint Adriana as her attorney:

Maria gave evidence that she had wanted to appoint Adriana as her attorney because Adriana “knew how to handle” Michael. Ms De Pasquale prepared the necessary document for Maria to sign, but she did not sign it “due to the pressure I felt from Michael”.

I reject Michael’s evidence that he was “always looking after” Maria after Michele died. There is no dispute that Michael paid the household expenses for the Haberfield property while he was living there during the period up to September 2016, and that he also paid personal expenses of Maria during that period. However, Michael paid those expenses in circumstances where: (1) in the period immediately after Michele’s death, Michael had practical control over the funds of MTP Marble & Granite in which Maria indirectly owned 98 per cent of the shares, before Michael later diverted the assets and business of that company to one of his own companies later in 2010; and (2) Michael was pressuring Maria to transfer her interest in the Annandale and Leichhardt properties to Mamro, and Maria ultimately agreed to do so subject to conditions which Michael disagreed with as referred to at [145]-[158] below. A half share of the rent from the Annandale property would otherwise have been payable to Maria, as would any profits of MTP Marble & Granite (through dividends paid to Finewest Holdings, of which Maria was the sole shareholder). Maria’s unchallenged evidence is that Michael received all of the rent from the Annandale property after Michele’s death, even before she transferred her 50 per cent interest in that property to Michael, and that Michael and Melanie treated the money in the company’s accounts as being for their own personal use.

Michael did not “look after” Maria in any meaningful sense of those words by paying her expenses while living in her Haberfield property rent-free and while treating her company’s funds and the rental income from her property as his own, before diverting the company’s assets and business for his own benefit and pressuring her to transfer the real property to him. I note Maria’s unchallenged evidence that Michael ceased paying her expenses when she required him to move out of the Haberfield property in September 2016 in the circumstances described at [179]-[191] below.

Maria was granted probate of Michele’s estate in about March 2010. According to Maria’s evidence, Michael continued to apply the pressure that he had been exerting since Michele’s death in September 2009, urging her to transfer the Leichhardt and Annandale properties to him. According to valuations obtained for the purpose of probate, the half share of 44-46 Moore Street, Leichhardt owned by Michele’s estate was worth $550,000 and the half share of 151-153 Parramatta Road, Annandale owned by Michele’s estate was worth $750,000. The Annandale property was unencumbered. It appears that the Leichhardt property was subject to a mortgage, but the evidence does not disclose the amount of the debt secured against that property.

According to Maria’s evidence, Michael said to her words to the following effect in the period after she obtained probate:

I repeat my observations and finding at [135]-[136] above in relation to Michael’s claim to have been “looking after” Maria.

As I have already mentioned, Maria gave evidence that Michael told her in the period after she was granted probate of Michele’s estate that he would “take” the business because Maria did not know anything about it. Each of Maria and Adriana gave evidence that this is precisely what Michael did. Michael did not require the shares in MTP Marble & Granite or Finewest Holdings to be transferred to him, but he registered his new company MTP Marble Granite Sandstone in October 2010 which operated the business, taking and using the stock and valuable equipment owned by MTP Marble & Granite without paying anything for it. According to Maria’s evidence, the equipment included two saw cutters fit for cutting marble, sandstone chippers, a polisher, trucks, forklifts, and a Mercedes car. In cross-examination, Michael acknowledged that he received that plant and equipment.

The evidence of Maria and Adriana concerning the new company established by Michael is consistent with ASIC records, which show that the shares in MTP Marble & Granite and Finewest Holdings were transferred to Maria following the death of Michele but were never transferred to Michael, and that MTP Marble Granite Sandstone was incorporated on 14 October 2010 with Michael as its sole shareholder, director and company secretary.

Maria gave evidence estimating that the equipment and stock that Michael took from MTP Marble & Granite for the benefit of the new company that he established in October 2010 would have been worth between approximately $500,000 and $750,000. Michael disputed that.

In his affidavit sworn on 22 February 2023 and in cross-examination, Michael asserted that, when he took the business assets of MTP Marble & Granite, he also took on “the burden of its liabilities”. Michael adduced no evidence that he, or his new company, became subject to any obligation to MTP Marble & Granite, or to any creditor of that company, to discharge the liabilities of that company, or that Michael or his new company in fact did so.

Given that MTP Marble & Granite and Finewest Holdings were ultimately deregistered in September 2012 after being wound up under a creditors’ voluntary winding up, it is inherently improbable that Michael and his new company took on the liabilities of MTP Marble & Granite when they took that company’s assets, and it is probable that they did not pay those liabilities off in any event. I reject Michael’s uncorroborated assertion that he took on the burden of the liabilities of MTP Marble & Granite.

Maria gave evidence that, at the same time as taking the business for his new company, Michael continued to exert constant pressure on her to transfer to him the properties at Moore Street, Leichhardt and Parramatta Road, Annandale. In about October or November 2010, Maria agreed to transfer those properties to him on the basis that Michael’s sisters would inherit the Haberfield property when Maria died, and that Michael would sign a document saying that he would look after Maria and give her some form of income for the rest of her life. Maria considered that the rental income from the Annandale property was her sole source of income and she was concerned that she would have no way to live after transferring the properties to Michael without a binding promise of financial support. Maria was also concerned that Melanie might take a share of what she was giving to Michael, and she wanted Michael and Melanie to enter into an agreement pursuant to which Melanie would have no claim over those assets. In cross-examination, Maria described herself as having been “overwhelmed” by Michael into agreeing to transfer her interest in the properties to him and said that she did so without thinking properly about that decision. However, Maria does not now seek to impugn the transfers of her interests in the properties, which were registered without her authority as I explain below.

Maria’s solicitor, Ms De Pasquale, prepared a draft deed between Maria, Michael and Mamro, and a draft financial agreement between Michael and Melanie, on Maria’s instructions. In January 2011, Maria signed the property transfers in favour of Mamro and instructed Ms De Pasquale to send the transfers to Mr Lakos, who was acting for Michael, for him to hold until Michael had signed the deed required by Maria, and Michael and Melanie had entered into a financial agreement. Ms De Pasquale wrote to Mr Lakos in the following terms on 31 January 2011:

The draft deed enclosed with Ms De Pasquale’s letter provided for the transfer of the two properties to Mamro, as Michael’s nominee, in consideration for a promise by Michael to look after Maria financially and non-financially for the rest of her life, including by paying her specified sums on an ongoing monthly and weekly basis, paying all rates, expenses and outgoings for the Haberfield property, and paying for all of Maria’s legal costs and disbursements in relation to the proposed deed, the proposed transfer of the properties, and any disputes incidental thereto. Clause 4 of the draft deed contained an express acknowledgement by Michael that “nothing in this Deed gives him any right whether at law or in equity in the Residential Property and is only in consideration of Maria’s share in the Leichhardt Property and Annandale Property”. The recitals to the draft deed defined the property at 2 Crescent Street, Haberfield, as the “Residential Property”.

Ms De Pasquale’s letter also enclosed a draft of a proposed financial agreement between Michael and Melanie which provided, inter alia, that Melanie agreed that she is not entitled to any “Excluded Property”, which was defined as Maria’s interest in the Leichhardt and Annandale properties which she had agreed in principle to transfer to Michael.

There was some correspondence concerning the terms of the proposed deed between Mr Lakos on behalf of Michael and Ms De Pasquale on behalf of Maria in February 2011. However, Michael refused to sign the deed and Melanie refused to sign the financial agreement.

I accept as inherently probable Maria’s evidence that she only agreed to transfer her interest in the Annandale and Leichhardt properties to Michael on the basis that his sisters would inherit the Haberfield property, and subject to Michael signing the proposed deed. There is no evidence of any reason why Maria would otherwise have agreed to transfer the Annandale and Leichhardt properties to Michael, significantly advantaging him to the detriment of his sisters in a manner that Maria had not contemplated when she and Michele made their mutual wills in 2007, which she had no intention of changing in the immediate aftermath of Michele’s death in September 2009. [42] The terms of that will already favoured Michael, who stood to inherit one half of his parents’ assets on Maria’s death, compared to his sisters between whom the remaining 50 per cent was to be divided equally.

Maria gave evidence that Ms De Pasquale’s firm held the certificate of title for the property at 151-153 Parramatta Road, Annandale. I infer that the certificate of title for the property at 44-46 Moore Street, Leichhardt, was held by the mortgagee.

In June 2011, Michael registered transfers of Eugenio and Maria’s respective interests the property at 44-46 Moore Street, Leichhardt. Both transfers are described in the historical title search for the property as being without monetary consideration. Michael accepted in cross-examination that no money was paid to Eugenio for the transfer of his interest.

The transfer of Maria’s interest was registered without her authority because Michael had not signed the deed, and Michael and Melanie had not signed the financial agreement, that Maria required as a condition of agreeing to the transfer. A historical title search for the Leichhardt property shows that the pre-existing mortgage on the title to that property was discharged immediately prior to registration of the transfers to Mamro and that a new mortgage was registered immediately thereafter. I therefore infer that Michael achieved the transfer of Maria’s interest to Mamro by using the signed transfer without Maria’s authority and contrary to the terms on which it had been provided to his solicitor to be held in escrow in January 2011, and by refinancing the existing mortgage in order to procure the mortgagee to release the certificate of title to the new, incoming mortgagee. I further infer that, as a result of his involvement in these transactions, the amount of the debt secured against the property at 44-46 Moore Street, Leichhardt immediately before and after the registration of the transfers to Mamro is within Michael’s knowledge. Michael did not adduce any evidence of the amount of that debt.

Ms De Pasquale’s firm ceased acting for Maria in about mid-2012 as a result of their fees not having been paid. It will be recalled that Maria was not receiving any income as a result of Michael having appropriated the family business and its assets for his new company, and receiving the rental income for the Annandale property. [43]

Ms De Pasquale’s firm continued to hold the certificate of title for the Annandale property after the firm ceased acting for Maria in mid-2012. In about April 2013, Michael or Mamro paid the outstanding fees owing to Ms De Pasquale’s firm. According to Maria’s evidence, Michael then took her to Ms De Pasquale’s office and uplifted all of Maria’s files and documents, including the certificate of title for the Annandale property. Michael did not challenge that aspect of Maria’s evidence in cross-examination.

In or about October 2014, Michael caused the transfer of Maria’s interest in the Annandale property to be registered to Mamro. Again, this was done without Maria’s authority. Eugenio’s interest in the Annandale property had already been transferred to Mamro in about May 2013, for no monetary consideration as Michael accepted in cross-examination. The timing of the transfer of Maria’s interest coincided with Mamro refinancing the loans that it had taken out in order to purchase a quarry, as referred to later in these reasons. [44] As Michael accepted in cross-examination, the Annandale property was unencumbered by any mortgage when Eugenio’s interest was transferred to Mamro in 2013. Immediately following that transfer, Michael caused a mortgage to be registered against the title to the Annandale property to secure vendor finance taken out by Mamro for its purchase of the quarry. In other words, contrary to his affidavit evidence, the Annandale property transferred to Michael was not encumbered by any mortgage other than the mortgage which Michael arranged as security for loans benefitting his company Mamro.

Michael and Mamro never signed the deed prepared by Maria’s solicitors in January 2011. In cross-examination, Michael said that he had no recollection of any such draft deed. Nor did Michael and Melanie ever sign the proposed financial agreement.

In his affidavit sworn on 22 February 2023, Michael deposed that he believed at the time, and still believes, that Maria transferred her interests in the Annandale and Leichhardt properties to him due to her “expectation that I would become the owner of those properties given that I had dedicated my life to maintaining and improving them”. I reject that evidence. As I have found above, Michael caused Maria’s interest in the properties to be transferred to Mamro without Maria’s authority. In any event, the evidence does not establish that Michael’s life was dedicated to maintaining and improving the Haberfield property, let alone the Leichhardt and Annandale properties. [45]

Mamro sold the Annandale property for $3,150,000 in 2017. Maria gave evidence that none of the sale proceeds was applied to reducing or discharging the mortgage that she granted over the Haberfield property in 2013 and 2014 to secure loans for Michael’s benefit to which I refer in more detail below. [46] Maria does not know what happened to the sale proceeds of the Annandale property.

In about June 2011, Michael took out a loan of $350,000 from NAB which he used to fund the purchase of a café in Leichhardt trading under the name of Belli Bar. The purchaser was Belliup Pty Limited, [47] which Michael caused to be registered on 18 March 2011. Michael was the sole director and shareholder of Belliup Pty Limited at all times until it was deregistered on 16 August 2015.

According to Michael’s evidence, his father had told him shortly before he passed away that he must buy a business for Daniela. Michael believed that his father asked him to do this because “as the only son in the family, there was an expectation that I would look after my sisters and provide for them long after my parents passed away”. Michael deposed that, after finding out that the Belli Bar business was for sale, he had a further conversation with Maria and Daniela about his proposal to purchase the business for Daniela, in which Daniela promised him that “I will pay you back in the future or you can take it out my inheritance”. Michael adhered to this evidence in cross-examination.

Daniela gave evidence denying making any such promise to Michael, and denying that he purchased the Belli Bar business for her. According to Daniela’s evidence, Michael bought the business and she worked in it between six and seven days a week. Daniela was able to deposit funds into the bank account of Belliup Pty Limited, but had no authority to withdraw funds from that account. Michael told Daniela to pay the bills and her own wages out of the cash register, but as the business rarely made enough money to pay its bills, Daniela rarely got paid. The business failed when the landlord of the café premises terminated the lease due to unpaid rent. Belliup Pty Limited is now deregistered. Daniela adhered to this evidence under cross-examination. Michael showed Daniela a document entitled “Belli Bar Loan Repayments Schedule” setting out a schedule of repayments of a loan amount of $350,000 over 15 years commencing on 30 June 2014, together with unsigned invoices issued by Michael to Daniela in July, August and September 2014 and in July and September 2015 for “Principle [sic] and Interest Repayments for Purchase of Belli Bar Business”. Daniela denied having seen those documents previously.

Maria gave evidence to the effect that Michael purchased the business through Belliup Pty Limited for himself, and asked Daniela to run it. Maria denied that Daniela had ever said to Michael in Maria’s presence that she would repay the $350,000 purchase price of the business to Michael, or that he could take it out of Daniela’s inheritance. According to Maria’s evidence, Daniela had always struggled financially and had never been in a position to pay $350,000.

I reject Michael’s evidence for the following reasons. First, it is inherently improbable that Michele asked Michael to buy a business for Daniela shortly before he died, in circumstances where Michele and Maria had made mutual wills just two years earlier providing for each of their four children. Second, Michael’s evidence that Daniela told him in 2010 or 2011 that she would repay him for the purchase price is inconsistent with his own evidence that he purchased the business for her to fulfill a family expectation that he was to “look after” his sisters. Third, it is plain from Michael’s own conduct that he had no interest in “looking after” any of his sisters at the time of this alleged conversation in 2010 or 2011. On the contrary, he was intent on depriving his sisters of the inheritance that they were to receive under their parents’ mutual wills made in 2007 by telling Maria that he would “take” the MTP Marble & Granite business and by pressuring her to transfer to him her interest in the Leichhardt and Annandale properties. At the time that he took out the loan to purchase the Belli Bar business, Michael had already established his own company to take the MTP Marble & Granite business and was in the process of transferring Maria’s interest in the Leichhardt property to Mamro without Maria’s authority. [48] It is highly improbable that, in the midst of this campaign to appropriate all of his parents’ assets for his own benefit, Michael purchased a business for Daniela in order to look after her. Fourth, Michael established a new company of which he was the sole director and shareholder to purchase the Belli Bar business. It is inherently improbable that he would have structured the transaction in this way if he had intended to purchase the business “for Daniela”. It would have been open to Michael to guarantee a loan to Daniela for her to purchase the business in her own name. Fifth, Michael did not challenge Daniela’s evidence that she had no access to the bank account of Belliup Pty Limited which was operating the business. Daniela’s lack of access to and control over the funds of the operating entity is strong evidence that, in practice, the business was not run as if it was owned by Daniela. Daniela was not the owner in name, or in substance. Sixth, the purported repayment schedule and invoices shown to Daniela in cross-examination were not referred to in Michael’s affidavit and, on the face of them, were not created contemporaneously with the conversation that Michael claims to have had with Daniela in which he alleges that she promised to repay him. I note that the date of one of the unsigned invoices was after the date on which Belliup Pty Limited was deregistered. I accept Daniela’s evidence in cross-examination that she had never seen these invoices prior to giving evidence.

For those reasons, and having regard to the documentary evidence concerning the ownership of Belliup Pty Limited, I find that Michael purchased the Belli Bar business in about June 2011 for his own benefit as the sole shareholder of Belliup Pty Limited.

Maria gave evidence to the effect that Michael told her in about April or May 2013 that he was purchasing a quarry and that he needed some help to make up the balance of the purchase price. Michael asked Maria if he could use her house as security, and told her that he needed her to see the solicitor. According to Maria’s evidence, she agreed to the mortgage after telling Michael that she did not want to lose her house, and that he would have to make all of the repayments and pay out the mortgage in full while Maria was still young because she could not deal with the stress of a mortgage over the Haberfield property as it was the only thing she had.

The quarry at 15 Laughtondale Gully Road, Maroota, [49] was purchased by Mamro on 22 May 2013. As I have already mentioned, Michael was, and remains, the sole director and shareholder of Mamro. The purchase was funded by a loan from Vivo International Pty Limited, secured by a registered mortgage granted by Mamro over the quarry property, a registered mortgage that Michael caused to be lodged over the Annandale property, and an unregistered mortgage granted by Maria over the Haberfield property which was the subject of a caveat lodged by Vivo International on or about 24 May 2013. To the best of Maria’s recollection, the unregistered mortgage over the Haberfield property secured a loan of $1,690,000. According to Maria’s evidence, she was not aware of the mortgage over the Annandale property. The question of how this mortgage came to be registered without Maria’s knowledge was not explored in the evidence.

Maria gave evidence to the effect that Michael had a further discussion with her in about April or May 2014 in which he told her that he was going to refinance the loans over the quarry to negotiate a lower interest rate, and that he would therefore need her to sign a new mortgage. Maria told Michael that she would do anything she could to help him, but that she did not want the debt hanging over her property forever because she found it stressful and she did not want to lose her house. In cross-examination, Michael agreed that Maria had said words to that effect at the time. According to Maria’s evidence, Michael responded by telling her that she would not lose her house, and that he would make sure that he took the mortgage off her property in ten years, or earlier if he sold the quarry or if either of them died. After hearing this, Maria told Michael: “Okay, I agree”.

In about June 2014, Maria executed a mortgage over the Haberfield property in favour of Westpac securing a loan of $1,690,000 which she understood was to replace the mortgage that she had previously granted to Vivo International. According to Maria’s evidence, she believed that this loan was the only money that Michael and Mamro owed in relation to the quarry. Maria was not aware that Michael caused Mamro to obtain a further loan from Australia and New Zealand Banking Group secured by mortgage registered over the quarry property at the same time as she signed the mortgage in favour of Westpac over the Haberfield property. Nor was Maria aware that Michael had also caused a mortgage to be registered over the Annandale property after earlier procuring the transfer Eugenio’s interest in that property to Mamro, and after registering a transfer of Maria’s interest in that property to Mamro in October 2014 (without Maria’s authority, as I have found above).

Maria gave evidence denying that Michael had told her that he needed to “use my part of the house as security”. According to Maria’s evidence, she did not consider that Michael had any interest in the Haberfield property to use as security, and she had made it clear to him by 2013 that the conditions of her agreement to transfer the Annandale and Leichhardt properties to him included that the Haberfield property would pass to his sisters by way of inheritance. Maria also gave evidence that Michael did not say anything to her suggesting that the mortgages he asked her to grant over the Haberfield property to facilitate Mamro’s purchase of the quarry property in May 2013 and in June 2014 had anything to do with money that Michael claimed to have spent in renovating the Haberfield property.

I accept Maria’s evidence about the terms on which she agreed to the registration of a mortgage over the Haberfield property in May 2013 and in June 2014, which was not challenged in cross-examination. That evidence is broadly consistent with the draft deed created by Maria’s solicitor on her instructions in 2011 which records her attitude to the Haberfield property only two years before she first agreed to grant the Haberfield mortgage in May 2013, and is also consistent with the terms of the deed referred to at [259]-[277] below which I have found both Michael and Maria agreed to in 2018.

I reject Michael’s evidence that, when he approached Maria in about April 2013 about mortgaging the Haberfield property to finance Mamro’s purchase of the quarry, he told Maria that “I need to use my part of the house as security to pay for the quarry”, by which Michael said in cross-examination he meant that he was effectively drawing on the money that he says he spent on the Haberfield extension works. I reject that evidence for three reasons.

First, even on Michael’s version of events, he did not spend anything like $1,690,000 on the Haberfield extension works. As I have already stated, the evidence does not establish that Michael personally spent any money on the Haberfield extension works. [50]

Second, Michael was well aware in 2013 that the title to the whole of the Haberfield property had passed to Maria on the death of his father, as Michael eventually conceded in cross-examination after endeavouring to avoid the question by asserting that he had believed while his father was alive that Michele was the sole owner of the property. This makes it inherently unlikely that he would have spoken to Maria about “my part” of the Haberfield property. In cross-examination, Michael ultimately conceded that he did not tell Maria at the time that she agreed to grant the mortgage that he believed he had an interest in the Haberfield property. If he had done so, it is inherently likely that Maria would have revived her 2011 requirement for Michael to sign a deed acknowledging that he had no interest in the Haberfield property as a condition of Maria’s agreeing to grant the mortgage for Mamro’s benefit. [51] In coming to that conclusion, I have taken into account Michael’s evidence in cross-examination in which he asserted that the mortgage was also for Maria’s personal benefit because Michael was “looking after her”. I reject that characterisation of the mortgage that Maria granted over her otherwise unencumbered home for the benefit of Mamro and repeat my observations at [135]-[136] above.

Third, Michael’s evidence and his pleaded contention that Maria agreed to grant the initial mortgage registered over the Haberfield property in May 2013, and the subsequent mortgage registered over that property as part of Mamro’s refinancing in June 2014, in recognition of the proprietary interest that Michael claims to have had in the Haberfield property, is inconsistent with the terms of the 2018 deed referred to at [259]-[277] below. As explained at [207]-[297] below, Michael signed that deed on about 23 August 2018 after receiving independent legal advice from solicitors who negotiated certain amendments on Michael’s behalf to the terms that had been proposed by Maria, and after Michael himself made further changes to the deed immediately before signing it. All of the changes negotiated on behalf of Michael, and the further final changes that he himself made unilaterally without negotiation, benefitted Michael. Clause 2(b) of the deed contained an acknowledgement by Michael and Mamro that they had agreed to discharge the Haberfield mortgage on the earlier of: (1) 30 July 2024; (2) the date of sale of the quarry; (3) within 90 days after the death of Maria; and (4) within 90 days after the death of Michael. When the substance of this agreement was put to Michael in cross-examination, Michael said that he could not recall those terms. Upon being taken to the provisions of clause 2 of the deed, Michael avoided answering the questions put to him about whether that clause accurately recorded the substance of the agreement that he and Mamro had made with Maria in 2014. Michael chose instead to launch into his oft repeated refrain that he “wasn’t all there” when he signed the deed, that Maria did not know what the terms of the deed were, and that his sisters had drafted those terms.

For those reasons, I find that Maria agreed to grant a mortgage over the Haberfield property to assist Michael to purchase the quarry property through Mamro in May 2013, and that Maria agreed to grant a further, substitute mortgage over the Haberfield property in June 2014 when Mamro refinanced the debt that it had incurred to purchase the quarry property. The mortgage secured repayment of a sum of $1.69 million. I further find that Maria granted those mortgages for no benefit to herself, and without recognising or acknowledging Michael’s claim to have a proprietary interest in the Haberfield property.

I further find that Maria and Michael agreed in about June 2014 that Michael would ensure that the Haberfield mortgage would be discharged on the earlier of: (1) ten years after June 2014; (2) the sale of the quarry; (3) 90 days after the death of Maria; or (4) 90 days after the death of Michael. Those were the terms on which Maria permitted a new mortgage to be registered over the Haberfield property in June 2014 to facilitate Mamro’s refinancing of its debts that were then secured by, inter alia, the mortgage that Maria had granted over the Haberfield property in May 2013.

The Haberfield mortgage has still not been discharged, despite Mamro selling the Annandale property for $3,150,000 in 2017. As discussed in more detail at [306] below, Michael and Mamro contend that they made a verbal agreement with Maria in about early 2020 pursuant to which Michael which varied their June 2014 agreement by removing the requirement for the Haberfield mortgage to be discharged within ten years.

Maria gave evidence that Michael told her in 2015 that he would arrange to have a power of attorney drawn up which would entitle him to access the apartments she owned in Rome during a forthcoming visit to Italy. Maria agreed, provided that the power of attorney did not authorise Michael to do anything more than look at the properties. Michael assured Maria that the power of attorney would only authorise him to inspect the properties. On 17 November 2015, Maria signed a “Procura Speciale”, which she described in her affidavit as an Italian power of attorney in favour of Michael. Maria’s signature was witnessed by a member of staff of the Consul General of Italy in Sydney. There is no evidence that Maria received any legal advice concerning the power of attorney before she signed it. Maria gave evidence that she did not realise at the time of signing the document that it conferred on Michael a power to sell the properties.

Maria gave evidence that Michael became verbally abusive towards her when she questioned him about his intentions behind his trip to Italy. In about September 2016, Maria received a call from Adriana, who had not spoken with her since she transferred her interest in the Annandale and Leichhardt properties to Mamro. Adriana gave evidence that she had become concerned about her mother after receiving a phone call from her neighbour, Mrs Shearer, suggestion that Adriana should check on Maria because she could her Michael shouting at her constantly.

After Adriana made contact with her, and at Paula’s suggestion, Maria sought advice from Ms De Pasquale in early September 2016 about the documents that she had signed at the Consulate. Maria ascertained from the Consulate that she had signed a General Power of Attorney, which Ms De Pasquale advised her included a power to sell the properties.

Maria then caused De Pasquale Lawyers to prepare and serve on Michael a notice of revocation of the power of attorney. De Pasquale Lawyers wrote to Michael on 7 September 2016 in the following terms:

Michael and Melanie were still living in the Haberfield property together with Maria at this time. According to Maria’s evidence in chief, Michael became very aggressive and abusive towards her after receiving this correspondence from De Pasquale Lawyers and Maria felt threatened and intimidated by him in her own home.

Maria instructed De Pasquale Lawyers to write a further letter to Michael, which was served on him personally by a process server, on 14 September 2016. The letter referred to Maria’s instructions that Michael had become increasingly abusive and intimidating towards her, and that she felt threated by his actions, and required Michael to vacate the Haberfield property within 30 days. According to Maria’s evidence, Michael did vacate the Haberfield property a short time after being served with that letter.

In his affidavit sworn on 22 February 2023, Michael denied that he was ever abusive or aggressive towards Maria. Michael attributes Maria’s request for him to move out of the Haberfield property in September 2016 to tension between Maria and Melanie. Michael deposed that he was in “complete shock” and “absolutely beside myself” when he read the 14 September 2016 letter from De Pasquale Lawyers, but that he did not speak to his mother about it because it was clear to him that Maria did not want him at the Haberfield property despite everything that he considered he had done for her and for the property.

Michael’s affidavit evidence to which I have referred above did not respond to the substance of Maria’s evidence that he had assured her that the power of attorney would only authorise him to inspect the properties, yet he had caused her to execute a document that included a power of sale.

When that allegation was put to him in cross-examination, Michael initially said that he did not recall what the power of attorney authorised him to do, or what he had told Maria about the power of attorney, but that their intention at the time had been to renovate the properties and not to sell them. Michael was then shown the letter from De Pasquale Lawyers dated 7 September 2016, and the following exchange took place between Michael and the cross-examiner:

I formed the view at the time that Michael’s three inconsistent answers given in response to a short series of questions – (1) we didn’t intend to sell; (2) we were intending to either renovate or sell; and (3) I can’t recall what we intended, but if it was to sell this would have been on Maria’s instructions (and I can’t recall whether she instructed me to sell) – were all instances of Michael saying whatever he thought might best assist his cause in these proceedings in the heat of the moment under cross-examination. His purported instructions to the cross-examiner to “continue” seemed to me to be a device to mask the discomfort that was obvious from his demeanour about the blatant inconsistencies that were emerging from his answers as he dissembled in the witness box.

Under cross-examination, Michael maintained his denial that he had been abusive or aggressive towards Maria prior to receiving the 7 September 2016 letter from De Pasquale Lawyers. Michael went so far as to accuse Maria of lying to De Pasquale Lawyers when she gave instruction to write that letter, and of lying about this issue in her affidavit. As I have already mentioned, Michael did not challenge Maria about the truth of the contents of the letter at the time he received it. Nor did he challenge Maria about those matters during his lengthy cross-examination of her at the hearing.

I accept Maria’s evidence about these matters, which is corroborated by Adriana’s evidence concerning the telephone call that she received from Mrs Shearer, and by the terms of Maria’s contemporaneous instructions to her solicitors as reflected in the 7 September 2016 letter. The evidence does not support a finding that Maria lied to her solicitors in providing the instructions reflected in that letter, and this serious allegation was not put to Maria in cross-examination. I reject Michael’s evidence about these matters for all of the reasons explained at [186]-[188] above and for the further reasons at [38] above.

For those reasons, I find that Maria required Michael and Melanie to move out of the Haberfield property in September 2016 after the relationship between Maria and Michael became strained as a result of a dispute arising from the scope of the authority conferred on Michael under the power of attorney that Maria had signed at the Italian Consulate and, in the context of that dispute, Michael became verbally abusive and aggressive towards Maria, causing her to feel intimidated and threatened in her own home.

Michael and Melanie moved out of the Haberfield property in September 2016 into rented premises at Hunters Hill. Michael gave evidence that, after living at the Hunters Hill property for a while, he decided to sell the Annandale property and use the sale proceeds to buy the Hunters Hill property. As I have already mentioned, the Annandale property was sold for $3,150,000 in about October 2017. However, Michael did not proceed with his plan to purchase the Hunters Hill property because he and Melanie separated in about May 2018.

The circumstances in which Michael and Melanie separated are relevant to Michael’s claim in these proceedings to set aside the 2018 deed on the grounds of unconscionability on the basis that he was allegedly suffering from a special disadvantage throughout the negotiations for the 2018 deed and at the time the 2018 deed was executed.

In his affidavit sworn on 22 February 2023, Michael deposed that he discovered in May 2018 that Melanie was having an affair with one of his employees. Melanie moved out of the Hunters Hill property shortly after Michael made this discovery. According to Michael’s evidence, he was heartbroken, and betrayed and blindsided by Melanie’s conduct after they had been together for 16 years and had a daughter together. Michael deposed that:

According to Michael’s affidavit, Maria and Daniela came to visit him at the Hunters Hill property shortly after Melanie moved out in May 2018. Michael deposed that he told Maria that he couldn’t believe what had happened, that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, and that he was struggling mentally. Michael deposed that he asked Maria: “Will you let me live with you? I don’t think I can look after myself anymore.” Michael deposed that Maria replied: “Son, of course. You should move in with me at the Haberfield Property so that I can look after you, you can trust me. I will cook for you and clean for you and look after you. I want you to move back with me, but you need to sign a document for me before you move in.” Michael deposed that he responded by telling Maria: “Of course mum, I will do anything you want as long as I can move back in with you.”

Maria gave a very different account of her conversation with Michael in May 2018. According to Maria, Michael asked her whether he could return to live at the Haberfield property because he believed that the Family Court would not permit him to have contact with his daughter, Briella, unless he had a secure and safe place to live. Maria told Michael that she no longer trusted him, she did not want a repeat of previous problems, and she wanted him to pay off the loan that had been taken out to purchase the quarry which was still secured by mortgage over the Haberfield property. Maria therefore told Michael that she would need to consult her solicitor, and that she would seek her advice about how to ensure that “things are done properly this time”.

Michael put to Maria in cross-examination that he told her during their conversation in May 2018 that he was drinking very heavily, and that he was very upset. Maria denied this.

Under cross-examination by Michael, Daniela gave evidence consistent with Maria’s evidence about the conversation:

Michael did not put to Daniela that he had told her and Maria during this conversation that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, or that he was struggling mentally.

Michael gave evidence that he moved back to the Haberfield property, together with his daughter Briella, shortly after his conversation with Maria in May 2018 to which I have referred above. Each of Maria and Michael gave inconsistent evidence about whether Michael moved back to the Haberfield property before or after Maria gave him a first draft of the document that she had foreshadowed in their May 2018 conversation. Nothing turns on this. It was anticipated before Michael moved back to the Haberfield property that a document would be signed. He returned to live at the Haberfield property before signing any document and, as explained below, the negotiation of the terms of the document continued well after his return. Michael had been living at the Haberfield property for some months before he signed the deed on about 23 August 2018, as referred to below.

Michael deposed that, at the time he moved back to the Haberfield property:

However, Michael also deposed that, upon moving back into the Haberfield property, his relationship with Maria went back to the loving relationship they had previously enjoyed. They had dinner together every evening, and would engage in conversation about a range of topics.

Maria gave evidence to the same effect, and deposed that she did not observe Michael to be depressed, or to be having difficulty functioning day to day. They shared a kitchen together in the Haberfield property, and she did not see Michael drinking. He did not drink before, during or after their dinner together each evening. She did not observe him to appear affected by alcohol at any time. According to Maria’s evidence, Michael “carried on life like he had done at all times of his life whilst he was living with me”. Maria also gave evidence that Michael even had female friends visit him and stay overnight at the Haberfield property on a couple of occasions.

Daniela gave evidence that she never saw or heard of Michael drinking alcohol or being affected by alcohol in the period after he and Melanie separated. Nor did Daniela observe Michael to be struggling. Daniela’s perception was that Michael was merely embarrassed that Melanie had an affair with one of Michael’s employees. According to Daniela’s evidence, Michael had a new girlfriend shortly after moving back into the Haberfield property, he went to work every day, and appeared to be functioning at home.

Adriana also gave evidence that, after he moved back into the Haberfield property, Michael did not appear to be drinking or affected by alcohol at any time in Adriana’s presence. Adriana’s perception, based on her interactions with Michael at the time, was that he did not really care that his relationship with Melanie had come to an end. Adriana did not observe Michael to be struggling mentally. Adriana also acknowledged that she and Michael had not spoken for some years before he moved back to the Haberfield property. Adriana found it uncomfortable to be around Michael at that time because she knew that he had taken the marble business and the Annandale and Leichhardt properties from Maria for nothing. Adriana advised Maria to be careful not to end up in “the same situation you were in last time”, by which I infer that Adriana was referring to Michael taking what he wanted without signing the deed that Maria had wanted him to sign in 2011. [52] According to Adriana’s evidence, Maria told her: “It won’t happen again. I have already gone to see Teresa and she is preparing a contract.” Adriana understood that Maria was referring to Ms De Pasquale.

In cross-examination, Michael maintained that he was drinking heavily during the period after his separation with Melanie, but said that he hid this from his mother except for a little bit of wine that they would drink together at dinner. He maintained that he was depressed and contemplating suicide but said that he hid his emotions from people, including from Maria. He was embarrassed that Melanie had cheated on him, and he did not want other people, including Maria, to think that he was struggling during that period.

After consulting Ms De Pasquale, Maria instructed her to prepare a draft deed to protect her interests in connection with Michael moving back into the Haberfield property. At some time between April and early June 2018, Maria received a draft deed from Ms De Pasquale which she then provided to Michael so that he could obtain his own legal advice.

In his affidavit sworn on 22 February 2023, Michael deposed that, after he moved back into the Haberfield property, he had several conversations with Maria in which he told her that he had potential purchasers for the quarry. According to Michael’s evidence, Maria told him that he should sell the quarry if he could get more than he paid for it, and said that she was not worried about him signing the deed and that he should “just focus on getting a good price for the quarry”. However, by July 2018, Maria began asking him when he was going to sign the deed.

Maria gave evidence confirming that Michael frequently told her during this period that he had a buyer for the quarry, and that he was in the process of selling it. However, Maria denied that she ever reached an understanding with Michael that he was no longer required to sign the deed so that he could focus on selling the quarry for a good price. On the contrary, Maria constantly asked Michael to see his lawyer so that they could both sign the deed. Maria recalled saying to Michael on at least one occasion that she needed him to sign the deed “because I made the mistake with you once and I won’t make it again”.

In July 2018, Michael engaged Ms Susan Alexander, solicitor, of MDW Law, to act on behalf of himself and Mamro in relation to the deed. Ms Alexander represented Michael and Mamro in negotiating the terms of the deed over the ensuing months, during which time five iterations of the draft deed were prepared.

Ms Alexander prepared a new document entitled “Deed of Relinquishment of Rights and Irrevocable Obligation to Discharge Mortgage”. It is convenient to refer to this document as the second draft of the deed, even though it is plain from the terms of the document itself that it was prepared from scratch rather than by amending the first draft prepared by Ms De Pasquale which Maria had earlier provided to Michael.

The recitals to the second draft recorded that Maria had provided the Haberfield property as security for loans to Mamro in order to assist Michael in a business venture, that the amount of those loans secured against the Haberfield property was approximately $1,690,000, and that the quarry owned by Mamro was in the process of being sold. Clauses 1 and 2 of the second draft provided for Michael to discharge the mortgages immediately upon receipt of the proceeds of the sale of the quarry, upon which Maria would grant to Michael a “permanent tenancy” in the Haberfield property until her death.

Clause 3 contained an acknowledgement by Michael that he had received gifts from Maria during her lifetime to which he might otherwise have been entitled under her will, and provided that Michael unreservedly relinquished his right to apply for a family provision order in respect of Maria’s estate. Clause 3 also contained a warranty and acknowledgement by Michael that it is to his advantage and prudent for him to relinquish those rights, that the relinquishment is fair and reasonable, and that he has taken independent legal advice in relation to the relinquishment and given due consideration to that advice.

Ms Alexander forwarded that document to Michael by email on 30 July 2018, stating (emphasis added):

Michael forwarded Ms Alexander’s email, together with the attached second draft of the deed, directly to Ms De Pasquale the following day on 31 July 2018. Ms Alexander independently sent the second draft directly to Ms De Pasquale by email on 31 July 2018.

Michael’s affidavit made no mention of the second draft of the deed which he provided to Maria and her solicitor on 31 July 2018. When asked about the second draft in cross-examination, Michael denied that he had given instructions to Ms Alexander to prepare it, describing that proposition as “rubbish” and “crazy”. Michael then progressed to denying that his solicitor had prepared the second draft at all, asserting that she had merely copied the terms of a deed prepared by Ms De Pasquale. As I have already mentioned, it is clear from the terms of the second draft that it has been prepared from scratch. It is not a copy or even an amended version of the first draft. I formed the impression at this point of the cross-examination that Michael was once again willing to say anything that he thought, in the heat of the moment, might assist his defence and cross-claim in these proceedings.

Upon being reminded by the cross-examiner that he had sent the second draft by email to Maria and to her solicitor on 31 July 2018, Michael denied that he had read the second draft before doing so, and said that he had “just wanted the solicitors to talk between themselves”. I interpolate to note that the solicitors would have had nothing to talk about if Ms Alexander had merely copied the terms of the earlier draft of the deed prepared by Ms De Pasquale. When the cross-examiner put to Michael that he had wanted the solicitors to talk because he wanted them to agree on terms that both he and Maria would be prepared to sign, Michael backtracked and suggested that perhaps it was his secretary who had sent the emails from his account to Maria and Ms Alexander attaching the second draft of the deed on 31 July 2018. I formed the impression at the time that Michael was grasping at any hypothetical possibility he could think of that he believed might get him out of what was becoming an uncomfortable position during this part of the cross-examination. Michael denied that he wanted the solicitors to talk with a view to negotiating the terms of a deed that would be acceptable to him and to Maria, but did not identify any other reason why he wanted the solicitors to talk. Michael denied that he agreed with the substance of the second draft of the deed, and repeatedly said that he “wasn’t all there” at the time. Michael also claimed that Maria had told him that the deed would never be used against him in a court of law. This was a new claim that Michael had not mentioned in his affidavit and introduced for the first time during this difficult stage of his cross-examination.

Michael did not adduce any medical or other evidence in support of his assertion that he “wasn’t all there”. Michael frequently repeated that assertion during cross-examination about the period during July and August 2018 during which the terms of the deed were negotiated and the deed was signed by Michael on 23 August 2018.

At the same as asserting that he “wasn’t’ all there” when the second draft of the deed was prepared by Ms Alexander, Michael gave evidence that he gave instructions to Ms Alexander that he required a right of first refusal to purchase the Haberfield property from Maria’s estate after her death. Michael gave evidence that this was very important to him.

Shortly after Michael gave that evidence, I observed that he looked a little troubled in the witness box as he appeared to realise that there was an impossible tension between his assertion that he “wasn’t all there” during the period of the deed negotiations, and his evidence that he gave instructions to his solicitor during that same period insisting on that right of first refusal. Michael endeavoured to address this tension by volunteering in one of his answers: “like, I wasn’t all there but I was there if you could understand it”.

Michael’s insistence on a right of first refusal to purchase the Haberfield property in 2018 – being the aspect of the negotiations for which he says he was “all there” – is also fundamentally inconsistent with his claims in these proceedings to have an equitable interest in the Haberfield property by reason of the work that he claims to have done on the property during his childhood, teenage years and early adult life, allegedly in reliance on promises made to him over many years prior to 2018 that the whole of the property would pass to him by way of inheritance. Michael dissembled when that inconsistency became apparent to him in cross-examination:

On 3 August 2018, Ms De Pasquale sent an email to Ms Alexander attaching a third draft of the deed after perusing Ms Alexander’s draft and taking instructions from Maria.

The third draft of the deed attached to Ms De Pasquale’s email was an amended version of the first draft that she had prepared in April 2018. Ms De Pasquale noted in her email that Maria required a mechanism for the mortgage to be discharged even if the quarry was not sold. The third draft of the deed recorded Mamro’s agreement that Maria had a caveatable interest in the quarry property, prohibited Mamro from further encumbering the property, and obliged Michael and Mamro to take reasonable steps to sell the quarry immediately and to discharge the mortgage over the Haberfield property on completion of the sale. The third draft also provided that, in the event that the quarry had not sold within 24 months after the date of the deed, Michael and Mamro were obliged to do all things required to discharge the mortgage by 2 October 2020, failing which Michael would be required to resign as a director and Maria would be entitled to appoint any person as the sole director of Mamro to facilitate the sale of the quarry, or alternatively Michael and Mamro would execute powers of attorney in favour of Maria or her nominee. These provisions were substantially the same as the provisions in the first draft of the deed, save that the period of time after which Maria would be entitled to take steps to bring about the sale of the quarry if the Haberfield mortgage had not been discharged was extended from 12 months after the date of the deed to 24 months after the date of the deed. That extension favoured Michael and Mamro.

Ms De Pasquale also noted in her email to Ms Alexander that she was instructed that Michael would be entitled to reside at the Haberfield property immediately, and not only on discharge of the mortgage as had been stipulated in Ms Alexander’s second draft of the deed. The third draft of the deed inserted a right for Michael to reside at the Haberfield property at Maria’s discretion, in such room or rooms of the property as Maria designates, and subject to a requirement for Michael to vacate the property within 30 days after Maria giving notice to vacate, after the death of Maria, or after the sale of the property. It was expressly provided that this right was a contractual licence only, which was personal to Michael and not permitted to be assigned or sub-licensed. Plainly, this was a lesser right than the right of permanent tenancy which Michael had sought in the second draft of the deed.

Ms De Pasquale’s email to Ms Alexander also contained the following observation:

The third draft of the deed included:

Provisions to the same effect had been included in the first draft of the deed.

The third draft of the deed also included the following clause 8, the terms of which were almost identical to clause 8 of the first draft of the deed:

Clause 9 contained general provisions, including an entire agreement clause in sub-clause (b) and the following sub-clause (c):

Those provisions had also been included in clause 9 of the first draft of the deed.

Ms De Pasquale’s email sent to Ms Alexander on 3 August 2018 concluded with a request on behalf of Maria that the matter be resolved, and the deed executed, as soon as possible.

Ms Alexander replied to Ms De Pasquale by two emails sent later that day advising that she had arranged a conference with Michael on the following business day – 6 August 2018 – for the purpose of taking his instructions.

On the afternoon of 7 August 2018, Ms Alexander sent a further email to Ms De Pasquale attaching a further amended version of the draft deed – being the fourth draft – “as per Michael’s instructions”. Ms Alexander’s email also stated:

Michael’s proposed substantive amendments, which were marked up in the fourth draft of the deed, were:

Michael did not propose any amendment to clause 7 of the third draft deed whereby he released and discharged Maria from any claim or demand relating to the renovation works at the Haberfield property or any other claim that he may have over the Haberfield property, and expressly agreed that he has no equitable interest in the Haberfield property.

Nor did Michael propose any amendment to the terms of clause 8 of the third draft of the deed set out at [228] above, by which Michael acknowledged the receipt of his early inheritance, acknowledged that Maria intended that her three daughters should inherit the Haberfield property to the exclusion of Michael, and released Maria’s estate from any claim for provision under the Succession Act. That clause 8 put Michael on notice that Maria did intend to change her September 2007 will so that he would not inherit any part of her interest in the Haberfield property.

Michael made no mention of the third and fourth drafts of the deed in his affidavit sworn on 22 February 2023. When those drafts were shown to him in cross-examination, Michael initially accepted that the only parts of the third draft to which he objected after discussing it with his solicitor were the parts that were the subject of the proposed amendments marked up in the fourth draft. Michael also accepted that Ms Alexander acted on his instructions when she sent that fourth draft of the deed to Maria’s solicitors.

Immediately after making those concessions, Michael sought to resile from them by reverting to his refrain that he “wasn’t all there” when the fourth draft of the deed was prepared, and also asserting that he “had no choice” because Maria would not otherwise have allowed him to move back into the Haberfield property.

I repeat my observations at [217]-[221] above in relation to Michael’s claim that he “wasn’t all there”.

Michael’s assertion that he “had no choice” cannot be accepted because he had already moved back into the Haberfield property at the time the fourth draft of the deed was prepared, as the cross-examiner reminded him. Michael retorted: “Well, it was my home that I paid for”. That response exposes the inconsistency referred to at [220]-[221] above between Michael’s claim to an equitable interest in the Haberfield property in these proceedings, one the hand, and his insistence on a right of first refusal to purchase that property, on the other hand.

In his affidavit sworn on 22 February 2023, Michael gave evidence that he was afraid of being “kicked out” of the Haberfield property if he did not sign the deed. There is no evidence of any reason for Michael to have been afraid at the time of the prospect of needing to arrange alternative accommodation for himself where his daughter could also live with him from time to time. It will be recalled that Michael had sold the Annandale property for $3,150,000 in October 2017 with the intention of purchasing the Hunters Hill property. Michael had abandoned his plan to purchase the Hunters Hill property as a result of his separation from Melanie. [53] There is no evidence that he or Mamro applied the Annandale sale proceeds to any other venture or that he lacked the funds or the means to raise funds to purchase or rent an alternative property to live in if he was unable to live at the Haberfield property for any reason.

Ms De Pasquale responded to the proposed fourth draft of the deed on behalf of Maria by sending a further amended draft to Ms Alexander by email on 14 August 2018.

In this fifth draft of the deed, Maria:

Ms De Pasquale’s email to Ms Alexander stated:

The fifth draft of the deed also reinstated the right in clause 6(b)(i) for Maria to give notice to Michael to vacate the Haberfield property, but stipulated a notice period of 60 days (as opposed to the 30-day period proposed in Maria’s third draft of the deed or the 90-day period proposed in Michael’s fourth draft). This change was accompanied by the following drafting note:

Clause 7 of the fifth draft was in the same terms as it had been in the third draft of the deed, Michael not having sought any change to that clause in the fourth draft. It will be recalled that clause 7 provided that Michael released and discharged Maria from any claim or demand relating to the renovation works at the Haberfield property or any other claim that he may have over the Haberfield property, and expressly agreed that he has no equitable interest in the Haberfield property.

Nor did the fifth draft propose any amendment to the terms of that part of clause 8 set out at [228] above, by which Michael acknowledged the receipt of his early inheritance, acknowledged that Maria intended that her three daughters should inherit the Haberfield property to the exclusion of Michael, and released Maria’s estate from any claim for provision under the Succession Act. It will be recalled that those provisions of clause 8 had been introduced by Maria in the third draft of the deed, and Michael had raised no objection to them in his fourth draft.

The final substantive amendment in the fifth draft was the deletion of the right of first refusal that Michael had inserted as clause 8(e) in the fourth draft of the deed. Clause 8(e) was replaced with a new clause 9 which provided that, within 60 days of the date of the deed, Maria would instruct her lawyers to amend her will to grant Michael a right of first refusal to purchase the Haberfield property on her death on reasonable terms. Ms De Pasquale’s email to Ms Alexander stated:

Ms Alexander replied to Ms De Pasquale’s 14 August 2018 email later that same day stating that she would seek instructions from Michael and revert as soon as possible.

On 17 August 2018, Ms Alexander sent a further email to Ms De Pasquale as a matter of courtesy advising that Michael had not yet been in contact with her and enquiring whether Ms De Pasquale was aware of any developments in relation to the deed.

On 21 August 2018, Ms Alexander sent a further email to Ms De Pasquale advising that Michael had been in contact with her the previous day about a separate matter “but wanted to delay the discussion about the deed until he was less busy”. This email is contemporaneous evidence that Michael felt perfectly at liberty to delay progressing the negotiation of the 2018 deed until a time that was convenient to him, contrary to his evidence claiming that he felt pressured to finalise and sign the deed.

On 23 August 2018, Michael handed Maria a copy of the fifth draft of the deed which he had executed as a deed in his personal capacity and as the sole director of Mamro after he or his solicitor made some handwritten amendments. Michael’s signature in his personal capacity was witnessed by Mr Luke Spartalis, a solicitor in Ms Alexander’s firm. Michael and Mr Spartalis had initialled each page of the deed. Save for Michael’s handwritten amendments, the document was in the same form as Ms De Pasquale had emailed to Ms Alexander on 14 August 2018, including electronically marked up amendments made by Ms De Pasquale and drafting notes inserted by Ms De Pasquale for Ms Alexander’s consideration. Michael’s handwritten amendments deleted his obligation to resign and Maria’s right to be appointed as a director of Mamro to facilitate the sale of the quarry if the Haberfield mortgage was not discharged by 2 October 2020, reinstated to 90 days the period of notice that Maria was required to give him to vacate the Haberfield premises, and reinstated the right of first refusal provisions that had been inserted by the fourth draft of the deed. Again, Michael raised no objection to 2 October 2020 as the date by which he and Mamro were required to discharge the Haberfield mortgage, even if the quarry had not been sold. Finally, Michael wrote on the cover page of the deed: “Daniela Guarrera to be made joint and several Power of Attorney for Maria”.

In cross-examination, Michael accepted that he signed the fifth draft of the deed after making those amendments. He signed it in front of Mr Spartalis on behalf of himself and as sole director of Mamro after Mr Spartalis read the terms of the document to him. In his affidavit, Michael deposed that he felt under intense pressure to sign the deed and that he was “still not in a right mental place” and was “too scared to consider what would happen if I didn’t sign” and “didn’t want to be kicked out of the Haberfield property”. Under cross-examination Michael maintained that he felt pressure to sign the deed, but acknowledged that he didn’t tell his solicitor that he felt pressured. Michael also said that Mr Spartalis had told him not to sign the deed, but that he had signed it anyway because “I wanted to move in back home”. Upon being reminded (again) that he had moved back into the Haberfield property some months earlier, Michael reverted to his assertion that he “wasn’t all there” at the time. I repeat my observations at [217]-[221] above. As Michael reluctantly accepted in cross-examination, he was sufficiently “all there” to formulate the amendments that he made to the fifth draft of the deed before signing it. Those amendments were favourable to him, and to Mamro. Michael then resorted to the circular reasoning that the very fact that he signed the deed, the terms of which he now contends are unfair, demonstrates that he “wasn’t all there” at the time.

Maria gave evidence that, although she did require the terms of the deed to be agreed and signed, she did not put pressure on Michael.

Maria delivered to Ms De Pasquale’s office the signed deed that Michael had presented to her. Ms De Pasquale sent an email to Ms Alexander later that day attaching a copy of that document, complaining that it included previous drafting notes together with proposed amendments that had not been agreed. Ms De Pasquale’s email concluded:

Ms Alexander replied to Ms De Pasquale later that afternoon:

On 24 September 2018, Ms De Pasquale sent a follow up email to Ms Alexander enquiring whether Michael intended to provide a response to the matters raised in her email of 23 August 2018. Ms Alexander replied that same day, stating that her firm no longer held instructions in relation to the deed and had not had any contact with Michael for several weeks, and that she could therefore add nothing further to her email to Ms De Pasquale of 23 August 2018.

After consulting Ms De Pasquale, Maria decided to accept the terms of the deed as signed by Michael, notwithstanding the objections that Ms De Pasquale had initially raised concerning the form of the deed and the process by which Michael had treated his most recent proposed amendments as a fait accompli by simply writing them in and signing the deed in that form without further negotiation. On 12 October 2018, Maria executed the same document that Michael and Mamro had executed on about 23 August 2018. Maria’s signature was witnessed by Ms De Pasquale.

It is convenient to summarise the terms of the whole of the deed as executed, including Michael’s handwritten amendments.

The recitals to the signed deed recorded that:

Clause 2 of the signed deed provided:

Clause 3 of the signed deed required Michael and Mamro to take all reasonable steps to immediately sell the Quarry, to do all things necessary to complete the sale in accordance with the contract (which they were obliged to ensure provided for completion within a reasonable time after the date of the contract), and to discharge the Haberfield Mortgage in full on completion of the sale. Clause 3 also contained an agreement by Mamro that Maria has a caveatable interest over the Quarry and is entitled to lodge a caveat to secure that interest.

Clause 4 of the signed deed provided that, if the Quarry has not sold within two years of the date of the deed, Mamro and Michael must do all things required to discharge the Haberfield Mortgage on or before 2 October 2020.

Clause 4 also required Michael and Mamro, jointly and severally, to pay all principal, interest, fees, charges and costs in relation to the Haberfield Mortgage, and to comply with the terms of the Haberfield Mortgage, at all times while the Haberfield Mortgage remained on foot.

Clause 5 of the signed deed provided:

Clauses 6(a) and (b) of the signed deed provided:

The 90-day period for Michael to vacate the Haberfield Property following one of the events referred to in clause 6(b) of the signed deed had been inserted by Michael in a handwritten amendment made immediately prior to his signing the deed, change the period from 60 to 90 days. Clause 6(b) retained the same drafting note inserted by Ms De Pasquale referred to at [245] above:

Clause 6(c) of the signed deed provided that Michael’s right to occupy part of the Haberfield Property was a contractual licence only and did not confer any tenancy or other interest in the property on him. Clause 6(d) provided that the right was personal to Michael and was not permitted to be assigned or sub-licensed. Clause 6(d) required Michael to comply with Maria’s directions in relation to the Haberfield Property at all times during his residence there.

Clause 7 of the signed deed contained a release in the following terms:

The signed deed defined the “Renovation Works” as:

It will be recalled that Michael did not seek to negotiate any change to clause 7 after it was introduced by Maria in the third draft of the deed on 3 August 2018. [54]

Clause 8 of the signed deed entitled “Further Release by Michael – Maria’s Estate” provided:

It will be recalled that Michael did not seek to negotiate any change to clause 8 after it was introduced by Maria in the third draft of the deed on 3 August 2018. [55]

I note that clause 8(a) of the signed deed inaccurately refers to Maria’s shares in MTP Marble & Granite and Finewest Holdings as having been transferred to Michael. Rather than taking a transfer of those shares, Michael registered his own company – MTP Marble Granite Sandstone – which then began operating the business of MTP Marble & Granite, using that company’s stock and equipment. Neither Michael nor MTP Marble Granite Sandstone paid any consideration for the business, stock and equipment that was so appropriated. [56]

By clause 9 of the signed deed, Maria agreed to instruct her solicitors to amend her will in order to grant Michael a right of first refusal to purchase the Haberfield Property upon her death. Clause 9 contained a series of acknowledgements and agreements by Maria in relation to the right of first refusal which Michael had inserted in the fourth draft of the deed, Maria had deleted from the fifth draft on the basis that it would be the subject of a provision in her will, but which Michael had reinstated by hand before signing the deed on or about 23 August 2018. Maria ultimately accepted the reinstatements by signing the deed as amended by Michael on 12 October 2018. The reinstated provisions included an acknowledgement by Maria, in terms drafted by Ms Alexander on Michael’s instructions, that Michael wished to purchase the Haberfield Property from Maria’s estate after her death.

Clause 10 of the signed deed contained an entire agreement clause and other general provisions, including the following sub-clause (c):

Clause 10 also included the following sub-clause (j):

As I have already mentioned, Ms Alexander’s firm had ceased acting for Michael and Mamro in relation to the deed before Maria signed it on 12 October 2018.

On 16 October 2018, De Pasquale Lawyers wrote to Michael enclosing a copy of the deed executed by Maria and advising that they held instructions from Maria to prepare amendments to her will in accordance with the deed. There is no evidence of any response from Michael to that communication, and Maria is not aware of any response. Maria gave evidence that she had allowed Michael and Briella to move into the self-contained apartment in the Haberfield property in about July 2018 and to live there rent-free on the understanding that they would all be bound by the terms of the deed, and Michael and Briella continued living there until September 2021. Michael gave no indication to Maria after he received the signed deed from her solicitors that he did not consider the deed to be binding and enforceable. On 23 November 2018, Maria signed a new will which conferred on Michael a right to purchase the Haberfield property following Maria’s death at the market value determined by an independent valuer appointed by Maria’s executor.

There is no dispute that Michael had a conversation with Maria, in the presence of Daniela, in May 2018 during which he asked Maria if he could return to live at the Haberfield property. Maria and Daniela independently gave accounts of that conversation which are broadly consistent. For the reasons explained at [23]-[38], I prefer their evidence to Michael’s evidence about what was said during that conversation. In particular, I reject Michael’s evidence that he told Maria and Daniela during that conversation that he felt like his whole world was crashing down, that he didn’t feel like he could look after himself, that he had been drinking in order to cope, or that he was struggling mentally. Those aspects of Michael’s evidence about the conversation are inconsistent with his own evidence in cross-examination that he hid those things from Maria and other people, [57] and I reject his evidence that he was even in that state at the time for the reasons explained immediately below.

I reject Michael’s evidence that he was depressed, struggling mentally, drinking heavily, unable to function and contemplating suicide during the period in which the 2018 deed was negotiated and at the time that he signed the deed on 23 August 2018, for the following reasons.

First, Michael’s evidence is uncorroborated by any medical or other evidence, and is inconsistent with the observations made by each of Maria, Adriana and Daniela at the time. Each of those witnesses has given an independent account of what she observed based on her own interactions with Michael, including in the case of Adriana acknowledging the limited nature of those interactions. Maria’s evidence about her observations is consistent with Michael’s own evidence that their relationship in the period after he moved back into the Haberfield property was as good as it had been in earlier times, and that they enjoyed dinner together every evening. For the reasons explained at [23]-[38] above, I regard the evidence of Maria, Adriana and Daniela about these matters as credible, and I accept that evidence.

Second, Michael’s evidence about his alleged state of mind and coping difficulties at the time is very difficult to reconcile with his own evidence that he was negotiating with potential purchasers of the quarry during this period and discussing those negotiations with Maria. Absent any explanation of his claimed ability to engage in those negotiations at a time when he says that he was struggling mentally, not coping, and not “all there”, those two aspects of Michael’s evidence are inconsistent. [58]

Third, Michael’s evidence is inconsistent with the contemporaneous documentary evidence discussed at [210]-[258] above, which demonstrates that Michael was capable of providing, and did provide, instructions to his solicitors about successive drafts of what became the 2018 deed, including instructions about amendments that he sought to those drafts that favoured his own interests at the time.

In particular, Michael’s evidence denying that he had provided instructions to his solicitors about the terms of the second draft of the deed, which his solicitors sent to him by email describing it as having been prepared “as per your instructions” on 30 July 2018, and which Michael then forwarded to Maria’s solicitor on 31 July 2018, was: (1) internally inconsistent; (2) inconsistent with the contemporaneous documents which establish that the second draft was prepared by Michael’s solicitor and not copied from the first draft prepared by Maria’s solicitor; and (3) inherently improbable because it implies that his solicitor falsely described the document has having been prepared “as per your instructions”.

I infer from Michael’s conduct in forwarding Ms Alexander’s email and the second draft of the deed to Ms De Pasquale directly that Michael was actively engaged in the formulation of the terms proposed in the second draft of the deed on which he would be permitted to live at the Haberfield property as he had requested, and that he was satisfied that the second draft of the deed, together with his requirement for a right of first refusal to purchase the Haberfield property referred to in Ms Alexander’s email, did reflect his wishes and his instructions to Ms Alexander at that time. As senior counsel for Maria submitted, the second draft of the deed and Ms Alexander’s email to Michael on 31 July 2018 therefore provide objective contemporaneous evidence of Michael’s state of mind as reflected in his instructions to his solicitor given approximately six weeks after receiving the first draft of the deed from Maria, and after taking the opportunity to consult and take legal advice from his solicitor.

On the basis of that contemporaneous evidence, understood in the context of the first draft of the deed that Michael had received before providing his instructions to Ms Alexander, I find that Michael acknowledged that he was obliged to discharge the mortgage over the Haberfield property which had funded Mamro’s purchase of the quarry, and that he was prepared to do so immediately following the sale of the quarry.

I further find that Michael was prepared to acknowledge the receipt of gifts from Maria that he might otherwise have received under her will, and to relinquish any claim for provision out of Maria’s estate following her death.

I further find that Michael wanted to live at the Haberfield property permanently, and that he wanted that property for himself following Maria’s death. Michael understood that he would need to purchase the Haberfield property from Maria’s estate in order to achieve the latter objective, and he therefore sought an option or right of first refusal that would permit him to do so. Michael’s evidence to the effect that he thought that Maria would gift him the Haberfield property, and that he negotiated for the right of first refusal to purchase the Haberfield property from her estate “just in case”, is inherently improbable and I reject it. Michael was aware that he did not stand to inherit the whole of the Haberfield property under the mutual wills made by Michele and Maria in July 2007, and he had no reason to believe that Maria had changed or intended to change her will in a manner favourable to Michael following Michele’s death and after Michael had indirectly received the benefit of the Annandale property, the Leichhardt property and the marble business.

In order to discharge her responsibilities as the solicitor acting for Michael and Mamro in relation to the proposed deed, Ms Alexander would have needed to take care to ensure that Michael had read and understood the provisions of the third draft deed in the course of taking his instructions, and before sending to Ms De Pasquale by email on 7 August 2018 the fourth draft of the deed marked up “as per Michael’s instructions” to identify the amendments that he sought to the third draft of the deed. It is inherently probable that Ms Alexander did so, and there is no evidence suggesting otherwise. I therefore find that Ms Alexander did take care to ascertain that Michael understood and agreed to the provisions of the third draft deed, subject only to the amendments marked up in the fourth draft deed which he had instructed her to request, before sending the fourth draft to Ms De Pasquale on the afternoon of 7 August 2018. I reject Michael’s denials of that proposition during cross-examination, which were inconsistent with his earlier acceptance of the proposition, and also internally inconsistent and contrary to undisputed objective facts. [59]

To the extent that Michael’s evidence suggested that his solicitors advised him not to sign the fifth draft of the deed on 23 August 2018 due to some alleged substantive unfairness in the terms of the deed, I reject that evidence. Subject to one qualification, that version of the deed represented a negotiated resolution of the conflict that Michael had created within his family by causing Maria’s interest in the Annandale and Leichhardt properties to be transferred to Mamro without Maria’s authority, [60] by taking the marble business and its assets for his new company, [61] by persuading Maria to mortgage the Haberfield property so as to assist Mamro to finance the purchase of its quarry property, [62] and by failing to taking any steps to cause Mamro to repay the debt secured by that mortgage even after the Annandale property was sold for $3,150,000 in October 2017. [63] Contrary to Michael and Mamro’s contention, the terms of the 2018 deed are not unfair to them in the context of all of those events that had given rise to the negotiations, particularly in circumstances where Michael has failed to establish the nature and extent of the work that he claims to have done on the Haberfield property during his childhood, teenage and early adult years and the costs that he claims to have incurred in relation to the Haberfield works, [64] and he has also failed to establish that the Haberfield property was ever promised to him by way of inheritance or that he was promised repayment of any moneys he spent on the Haberfield extension works. [65] The qualification to which I referred above is only that the amendments unilaterally made by Michael immediately before signing the deed on behalf of himself and Mamro on 23 August 2018 had not been negotiated with Maria. Those amendments favoured the interests of Michael and Mamro, and it is plain from Michael’s conduct in signing the deed immediately after making those amendments by hand that Michael decided to present those amendments to Maria as a fait accompli rather than seeking Maria’s agreement. I find that Michael signed the deed on 23 August 2018 for that reason, and not due to any pressure exerted on him by any other person. The solicitors representing Michael and protecting his interests advised him not to rush into signing the deed, not because of any concern about its terms but because “signing a hand-amended deed was irregular and would not be accepted”. [66] On Michael’s own evidence, his solicitor read the terms of the deed aloud to him before he signed it and he was sufficiently “all there” to formulate the amendments that he made by hand. [67] I find that Michael understood the terms of the deed that he signed on 23 August 2018, and that he agreed to those terms on behalf of himself and Mamro without any pressure being exerted by any other person. I further find on the basis of the contemporaneous documentary evidence that Michael did not feel or perceive any pressure from Maria or anybody else to finalise and sign the 2018 deed. [68] I reject Michael’s evidence and submissions to the contrary.

According to Michael’s evidence, he was sufficiently “all there” at each critical point during the negotiation of the terms of the deed to provide instructions to his solicitors about those things that he wanted to include in the deed to advance his own interests or the interests of Mamro, yet he “wasn’t all there” and was incapable of providing instructions about those aspects of the signed deed that he now wishes to disavow. That is inherently improbable, and I reject Michael’s evidence that he “wasn’t all there”.

For all of the reasons at [282]-[292] above, and for the further reasons explained at [38] above, I reject Michael’s evidence that he was depressed, struggling mentally, drinking heavily, unable to function and contemplating suicide during the period in which the 2018 deed was negotiated and at the time that he signed the deed on 23 August 2018. I find that Michael was capable of reading and understanding each iteration of the draft deed throughout the negotiations, and that he did so in the course of giving instructions to his solicitors stipulating amendments that he required. That is to say, Michael was “all there”. On the basis of the contemporaneous documentary evidence of the terms of each draft, and Michael’s response (through his solicitor) to each draft, I find that, by the time he amended and signed the fifth version of the deed on 23 August 2018, Michael had the following state of mind:

Most of those provisions had been included in more than one iteration of the draft deed provided to or emanating from Michael’s solicitors, and had not been the subject of any amendment proposed by Michael. [76]

I reject Michael’s evidence that Maria told him that the deed would never be enforced against him. During the whole of the period from May 2018 when Michael first sought her permission to return to live at the Haberfield property, Maria firmly but patiently insisted on a deed being signed in order to mitigate the risk of Michael taking what he wanted without affording Maria any of the protection or security that she had asked for in return, as he had done in 2011, and engaged in the negotiation of the terms of that deed through her solicitors. [77] It is inherently improbable that Maria would have invested the time and effort to do so if she had no intention of ever taking action to enforce the deed if it became necessary to do so in order to protect her own interests. It is even more improbable that she would have intimated to Michael that he could act as he pleased, as he had done in 2011, without any risk of the deed being enforced against him.

I also reject Michael’s uncorroborated evidence that Maria told him that the object of the deed was to ensure that Melanie could not make a claim against Michael’s inherited assets in any family law proceedings between them. The terms of the 2018 deed were plainly not directed to achieving that alleged object in respect of the Annandale and Leichhardt properties and the marble business that had already been transferred to Michael, and it was clear from clause 8 that Michael would not inherit any further assets. Michael may be confusing his discussions with Maria about the 2018 deed with their earlier discussions in 2011 about the deed and associated financial agreement which he and Melanie refused to sign. [78]

In summary, as was submitted on behalf of Maria, the contemporaneous documents show active, self-interested negotiations between Maria on the one hand and Michael and Mamro on the other hand, through their respective solicitors, over a period of approximately two months, culminating in Michael’s execution of the 2018 deed on 23 August 2018 on his own behalf and in his capacity as the sole director of Mamro, and Maria’s execution of the 2018 deed on 12 October 2018.

Consistently with clause 6 of the 2018 deed, Maria permitted Michael and his daughter Briella to continue living in the apartment at the Haberfield property free of charge after the deed was executed on 12 October 2018. As referred to earlier in these reasons, Michael had returned to live at the Haberfield property in about May 2018 in anticipation of signing a deed as required by Maria. Michael and Briella continued to live there without paying rent or any contribution to outgoings until September 2021. According to Michael’s evidence, he chose to move out of the Haberfield property at that time because his sister Paula told him that she was also coming to live at the property together with her husband and children. Michael was angry about this because he believed that the Haberfield property was his home, and he considered that he had spent over one million dollars renovating the property. As I have explained earlier in these reasons, Michael has not proved his claim to have spent in excess of one million dollars, or any particular sum, in renovating the Haberfield property. Moreover, Michael had signed the 2018 deed which expressly provided that any expenditure on the Haberfield extension works did not entitle him to repayment or to an equitable interest in the Haberfield property.

Consistently with clause 9 of the 2018 deed, Maria signed a new will on 23 November 2018. The will conferred on Michael a right to purchase the Haberfield property following Maria’s death at the market value determined by an independent valuer appointed by Maria’s executor.

Notwithstanding clause 3 of the 2018 deed, Maria is not aware of any steps taken by Michael or Mamro to sell the quarry in the period after the execution of the 2018 deed. The Haberfield mortgage was not discharged by 2 October 2020 as required by clause 4 of the 2018 deed.

On 24 August 2021, Maria caused Ms De Pasquale to write to Michael noting that she had acted in good faith in not pressing for the discharge the Haberfield mortgage since 2 October 2020 but had not waived her rights under the 2018 deed. The letter notified Michael that, if the mortgage was not discharged within 30 days, Maria would commence proceedings for specific performance of the 2018 deed and to recover her costs of enforcement on an indemnity basis in accordance with clause 5 of the 2018 deed.

Michael stopped paying Maria’s expenses after he moved out of the Haberfield property in September 2021. By the time of the hearing in August 2024, Maria had sold the two apartments in Rome which she inherited from Michele in order to raise funds to pay her own expenses. It will be recalled that Michael had taken all of the other property that Maria inherited which might otherwise have provided her with a source of income.

In defiance of clause 7 of the 2018 deed, Michael lodged a caveat against the title to the Haberfield property on 28 October 2021 claiming a beneficial interest in the land pursuant to a trust said to arise from “his financing or, erection or and the undertaking of building work on the land, namely the construction of a second level and a granny flat”.

Maria commenced these proceedings on 28 January 2022.

Michael and Mamro failed to comply with Maria’s demand made on 24 August 2021. The Haberfield mortgage has still not been discharged.

In February 2023, Michael arranged for Mamro to repay the loan to Australia and New Zealand Banking Group that had been taken out in 2014 and secured by mortgage over the quarry property. [79] Michael accepted in cross-examination that he chose to prioritise repayment of that loan over repayment of the loan secured by the mortgage that Maria granted over the Haberfield property. Michael denied that he did so in breach of his obligations under the 2018 deed, claiming that Maria had always said to him that he did not need to worry about when he would be able to discharge the Haberfield mortgage, and that he could do so “[w]henever you can get more money”. In his affidavit sworn on 22 February 2023, Michael deposed that he had several conversations with Maria in early 2020 in which he had told her that he thought the value of the quarry would go up, and that he thought that he should therefore defer selling it to maximise the sale price. According to Michael’s evidence, Maria told him that she thought this was a good idea, and that she did not mind when he repaid the Haberfield mortgage as he continued to service the mortgage in the meantime. Maria did not recall having any such conversation with Michael, and it is inherently improbable that she did so given that her concern about having the Haberfield property being encumbered by the mortgage was one of the driving factors behind her insistence on negotiating and entering into a deed with Michael in 2018, and given her intention reflected in the terms of the 2018 deed to ensure that the Haberfield property would be available to be passed unencumbered to her three daughters by way of inheritance following her death. I reject those aspects of Michael’s evidence for the reasons explained at [38] above.

Maria sues Michael and Mamro to enforce the 2018 deed.

Maria seeks a declaration that the 2018 deed is valid and ought to be specifically performed, and an order requiring Michael and Mamro to specifically perform the 2018 deed by: (1) discharging the mortgage over the Haberfield property which was due to be discharged by no later than 2 October 2020 under clause 4 of the 2018 deed; (2) taking all reasonable steps to enable Maria to exercise all powers as attorney for Michael and Mamro to bring about the discharge of that mortgage pursuant to clause 5.1 of the of the 2018 deed; and (3) indemnifying Maria, and keeping her indemnified, against all costs, fees, charges, expenses or liabilities incurred by her as a result of their defaults, as required by clause 5.1 of the 2018 deed.

Maria seeks a further order that, in the event that Michael and Mamro fail to discharge the Haberfield property mortgage within 14 days of the date of the order for specific performance, Maria may execute all documents and take all steps as are necessary to effect the discharge of that mortgage, without further reference to Michael and Mamro and without further order of the Court, in her capacity as attorney for Michael and Mamro pursuant to clause 5.1 of the 2018 deed.

Further to the specific performance orders referred to above, Maria seeks a declaration that Michael does not have any equitable interest in the Haberfield property and an order pursuant to s 74MA of the Real Property Act 1900 (NSW) requiring him to withdraw his caveat lodged against the title to the Haberfield property.

Maria also seeks an order pursuant to s 95 of the Succession Act 2006 (NSW) approving Michael’s release in clause 8(c) of the 2018 deed of his rights to apply for an order for family provision out of the whole or any part of the estate or the notional estate of Maria, including the Haberfield property,.

Michael and Mamro deny that the 2018 deed is enforceable on the basis that, before Maria executed the document on 12 October 2018, her solicitors had advised Michael and Mamro’s solicitors on 23 August 2018 that they were “unable to accept” the document executed by Michael and Mamro and that “the matter needs to be resolved”, and that Maria’s solicitors had pressed for a response to that email on 24 September 2018.

Maria denies that her solicitors’ initial response to the 2018 deed executed by Michael and Mamro constituted a rejection of it. Further, Maria contends that the parties manifested their mutual assent to the deed, and affirmed the deed and elected to be bound by it, by their conduct following her execution of the deed on 12 October 2018. Maria refers to the lack of any objection by Michael and Mamro to Maria’s delivery of the executed deed on 16 October 2018, Michael’s exercise of his right of residence at the Haberfield property in accordance with clause 6, and Maria’s amendment of her will in accordance with clause 9 of the 2018 deed. Further, or alternatively, Maria relies on the doctrines of promissory and conventional estoppel as precluding Michael and Mamro from alleging that the 2018 deed is void or unenforceable.

If the 2018 deed is not unenforceable by reason of Maria’s initial response to it, Michael and Mamro claim that it is void, unenforceable, or liable to be set aside on one of three grounds: (1) unconscionability; (2) undue influence said to have been exerted by Michael’s sisters over Maria inducing her to allegedly obtain Michael’s and Mamro’s execution of the deed in circumstances where Michael claims to have been suffering from a special disadvantage; and (3) pursuant to ss 4 and 7 of the Contracts Review Act 1980 (NSW).

It is convenient to set out in full paragraphs 17 to 23 of the Amended Defence filed by Michael and Mamro on 15 July 2022, in which the unconscionability claim is pleaded:

Michael and Mamro rely on the matters pleaded in their unconscionability claim as: (1) the basis for their cross-claim for a declaration that the 2018 deed is liable to be set aside and an order setting it aside or refusing to enforce it; (2) part of the basis of their allegation that Maria obtained their signatures to the 2018 deed under the undue influence of her three daughters; (3) the basis for their cross-claim for an order under s 7 the Contracts Review Act declaring the 2018 deed void; and (4) the basis for their defence of unclean hands to Maria’s claims for relief.

Maria denies that Michael was suffering from a special disadvantage at any time, referring inter alia to the fact that Michael obtained independent legal advice in relation to the 2018 deed which was the product of negotiation between the parties through their respective solicitors. Maria also denies that she took unconscientious advantage of any special disadvantage (which is denied).

In relation to the claim under the Contracts Review Act, Maria pleads that Mamro may not be granted relief under that Act by reason of s 6(1), and neither Michael nor Mamro may be granted relief under that Act by reason of s 6(2) in circumstances where the 2018 deed was entered into in the course of, or for the purpose of, the business of the quarry owned by Mamro. Maria denies the factual allegations underpinning the claim for relief under the Act, and says that the Court would not grant relief under the Act in any event because Michael and Mamro have unclean hands, have received the benefits conferred on them under the 2018 deed, and have not offered to return, and cannot now return, those benefits. Maria further pleads that the doctrines of promissory and conventional estoppel operate to preclude Michael and Mamro from denying the validity and enforceability of the 2018 deed.

It is common ground that Maria, Michael and Mamro made an oral agreement in about 2014 when Maria granted a mortgage over the Haberfield property to secure a loan to Mamro for the purpose of its acquisition of the quarry.

On Maria’s case, that oral agreement required Michael and Mamro to discharge the mortgage over the Haberfield property on the earliest of: (1) 30 July 2024; (2) Mamro selling the quarry; (3) 90 days after the death of Maria; or (4) 90 days after the death of Michael. However, that oral agreement was superseded by the 2018 deed which she sues to enforce.

Michael and Mamro allege that the oral agreement made in about June 2014 required them to meet all repayments under the Haberfield mortgage and to discharge that mortgage within 10 years – that is, by about June 2024. Michael and Mamro allege that this oral agreement was superseded or varied by a further oral agreement that they made with Maria in about early 2020 to the effect that they would discharge the Haberfield mortgage when the quarry was sold, or when Maria died, and that they were not required to sell the quarry by any particular date so long as they continued to meet all repayments under the mortgage. Michael and Mamro rely on that alleged oral agreement said to have been made in early 2020 in support of their contention that Mamro is not presently in default of any obligation to discharge the mortgage over the Haberfield property. By their cross-claim filed on 1 April 2022, Michael and Mamro seek a declaration that they are only required to discharge the Haberfield mortgage upon the death or Maria or the sale of the quarry, whichever occurs first.

Michael and Mamro further claim that Michael has a proprietary interest in the Haberfield property arising from: (1) representations allegedly made by Michele to Michael that, if he worked on the family’s properties, including the Haberfield property, he would inherit them on the basis that he would be expected to take care of his sisters; (2) Maria’s alleged awareness of those representations; (3) Michael allegedly investing considerable sums and expending considerable personal effort on the development of the family’s properties, including the Haberfield property; (4) the title to the Haberfield property having passed to Maria by right of survivorship following the death of Michele; (5) Maria, allegedly in recognition of the claimed understanding between Michele and Michael, transferring her interest in the properties to 44-46 Moore Street, Leichhardt and 151-153 Parramatta Road, Annandale to Michael, and allegedly agreeing that Michael would also inherit half of her estate upon her death; and (6) Michael’s alleged reliance on the understanding that he claims to have had with Michele and on Maria’s transfer of her interest in the Leichhardt and Annandale properties and her alleged agreement to bequeath half of her estate to Michael. The pleaded acts of reliance are: (1) Michael’s alleged completion of “considerable additional works” at the Haberfield property, including the construction of an additional level and the construction of a granny flat downstairs, the total costs of which are said to be in excess of $1,000,000; and (2) Michael’s alleged expenditure of additional sums in supporting Maria and his sisters at Maria’s request.

Michael and Mamro rely on Michael’s alleged proprietary interest: (1) in resisting Maria’s claims for a declaration to the effect that Michael has no proprietary interest in the Haberfield property and for an order for the withdrawal of his caveat; (2) in support of their cross-claim for a declaration to the opposite effect, together with a declaration that Maria holds 50 per cent of the Haberfield property on constructive trust for Michael, subject to any encumbrances.

Michael and Mamro also rely on Michael’s alleged proprietary interest as explaining Maria’s agreement to grant the mortgage over the Haberfield property securing a loan which funded Mamro’s purchase of the quarry, pleading that Maria agreed to grant that mortgage “in recognition of [Michael’s] proprietary interest in the Haberfield property and the considerable sums of money he had spent in developing and improving that property”.

Maria disputes the alleged facts which form the basis of Michael’s claimed proprietary interest. Maria also pleads that the proprietary interest claimed by Michael is bad in law because: (1) her right of survivorship was an inherent and necessary element of the joint tenancy in the Haberfield property which could not be defeated by Michele purporting to confer a right of inheritance on Michael; and (2) Michael does not allege any representation or promise, or common intention or understanding to which Maria was a party, which is capable of affecting her interest and right of survivorship arising from the joint tenancy.

Maria further pleads that Michael’s claim to a proprietary interest in the Haberfield property is not maintainable by reason of his agreement to release and forever discharge Maria from any such claim arising from the “Renovation Works” referred to in the deed, his agreement that he has no equitable interest in the Haberfield property, and his agreement that the 2018 deed constituted the entire agreement between them and superseded all prior agreements, under clauses 7 and 10 of the 2018 deed.

Maria says that, in any event, Michael’s claim to a proprietary interest is barred by ss 27, 36, 47 and/or 49 of the Limitation Act 1969 (NSW), or is no longer available on the ground of laches or acquiescence, because more than 12 years elapsed between the date on which the alleged cause of action accrued upon the death of Michele on 7 September 2009 and the filing of the cross-claim in these proceedings on 1 April 2022.

Finally, Maria pleads that the Court should not grant the discretionary relief sought by Michael and Mamro because Michael has unclean hands, or it would otherwise be inequitable or unjust to grant relief.

In relation to costs, Maria relies on clause 5.1 of the 2018 deed in seeking an order that Michael and Mamro pay her costs of these proceedings on an indemnity basis. Conversely, Michael and Mamro seek an order that Maria pay their costs of the proceedings. Each party seeks an order for interest on any costs awarded in their favour pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW).

It is convenient to address the substance of the issues raised by those claims and defences under the following topics:

As referred to at [312] above, this issue arises from Michael’s and Mamro’s pleaded denial that the 2018 deed is enforceable by reason of the email that Maria’s solicitors sent to Michael’s solicitors on 23 August 2018 advising that they were “unable to accept” the fifth draft of the deed executed by Michael and Mamro, which incorporated markings delineating the most recent amendments and drafting notes and comments addressed to Michael’s solicitors. Michael’s submissions did not address this contention, but I infer that the substance of the issue intended to be raised by this pleading in the defence, which was prepared at and filed by the solicitors acting for him and for Mamro at the time, was that the 23 August 2018 email constituted a rejection by Maria of an offer by Michael and Mamro to enter into a deed on the terms of the fifth draft which they had executed.

In response, it was submitted on behalf of Maria that Michael and Mamro were clearly willing to be bound by the executed deed that they signed and delivered to Maria, and that Maria’s objection communicated on 23 August 2018 concerned only the form of the document. It was further submitted that, even if the 23 August 2018 email might otherwise have evidenced a rejection of that offer by Maria, this is a case in which the parties’ conduct in the period from 23 August 2018 referred to at [298]-[299] above manifested their mutual assent to the terms of that document.

With respect, both parties fail to grapple with the fact that the document is a deed.

The document was described a deed in the heading, in the recitals, and in the attestation clause, and had been so described in each of the five draft iterations of the document that the parties had been negotiating through their respective solicitors. That is objective evidence that Michael and Mamro intended, by executing the document, to create a deed. There is nothing in the terms of the deed or the circumstances surrounding its execution to suggest otherwise. Nor is there any other evidence of any contrary intention. [80]

The document was expressed to be executed as a deed by Michael and by Mamro. Michael’s signature was attested by Mr Luke Spartalis, a solicitor employed in Ms Alexander’s firm who certified that Michael executed the deed in his presence, under an execution clause which described the document as having been signed, sealed and delivered. This satisfies the requirements of s 38 of the Conveyancing Act 1919 (NSW). [81] Michael signed the deed in his capacity as sole director and sole company secretary of Mamro, which constitutes valid execution of the document as a deed pursuant to s 127(1)(c) and (3) of the Corporations Act 2001 (Cth).

By his conduct in providing the executed deed to Maria on 23 August 2018, Michael delivered the 2018 deed to Maria on behalf of himself and Mamro. I have inferred from the history of the negotiations prior to Michael’s execution of the deed, and his conduct in executing the deed incorporating his final amendments contrary to his solicitor’s advice to negotiate those amendments, that Michael executed and provided the deed to Maria on 23 August 2018 with the intention of presenting those final amendments to Maria as a fait accompli. I infer that Michael’s objective in doing so was to pressure Maria to accept those final amendments. [82] In my opinion, Michael thereby evinced an intention that he and Mamro would be immediately bound by the 2018 deed on those terms, subject to the condition that it would not become effective until Maria executed it. I infer from Michael’s history of successfully pressuring Maria to bend to his will, [83] and refusing to accede to Maria’s will, that he would not have provided the executed 2018 deed to Maria at all if he had not intended to be immediately bound, and that he was confident that Maria would eventually yield by signing the 2018 deed on his terms. As the sole director of Mamro, Michael’s state of mind is attributable to the company. Thus, the 2018 deed was delivered by Michael and Mamro in escrow on 23 August 2018. The escrow condition was that the 2018 deed would only be effective when Maria executed it, there being no power for Michael and Mamro to recall it in the meantime.

The escrow condition was satisfied when Maria executed the 2018 deed in compliance with s 38 of the Conveyancing Act on 12 October 2018. Maria’s signature was attested by Ms De Pasquale, who certified that Maria had executed the deed in her presence, under an execution clause which described the document as having been signed, sealed and delivered. The 2018 deed became effective as a deed binding on all parties immediately on Maria’s execution of it. Maria, through her solicitors, delivered the executed deed to Michael on 16 October 2018, as referred to at [279] above. [84]

If I had not concluded that the 2018 deed was effective as a deed and binding on all parties from 12 October 2018 for the reasons set out above, I would have upheld Maria’s submission that the parties manifested their mutual assent to the terms of the 2018 deed by their conduct in signing the deed referred to at [252]-[253] and [258] and their conduct thereafter referred to at [279] and [298]-[301] above, and that the 2018 deed was therefore binding on them as a matter of contract law. [85] As I have mentioned earlier in these reasons, Michael’s unpleaded contention that the 2018 deed was not Maria’s document and that she did not understand it, which received much attention during his cross-examination of Maria, Daniela and Adriana, was baseless. [86]

I have rejected Michael’s evidence of the alleged oral agreement that he claims he made with Maria in early 2020 concerning the time within which Michael and Mamro were required to discharge the mortgage over the Haberfield property. [87] Clauses 3, 4 and 5 of the 2018 deed were not superseded by any such oral agreement. [88]

As Kiefel CJ, Bell, Gageler, Keane and Edelman JJ said in Thorne v Kennedy: [89]

These considerations are not to be applied as if they were separate elements of a cause of action. Each case calls for a precise examination of its particular facts, including the relationship between the parties, and the circumstances of the party who is said to have been vulnerable by reason of a special disadvantage. [90] There are no fixed or closed categories of circumstances that might constitute a special disadvantage but, in this context, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. [91]

In determining whether one party has unconscientiously taken advantage of a special disadvantage of the other, it is necessary to consider whether the first party had actual knowledge of, or was wilfully ignorant of, the special disadvantage, or had constructive knowledge of that special disadvantage in the sense that they had knowledge of facts from which they ought to have known that the other party was suffering under the particular special disadvantage. Constructive notice – where the first party is on notice of facts that might lead on inquiry to discovery that the other party has a special disadvantage – will not suffice. [92]

For the reasons explained at [192]-[297] above, Michael has failed to establish that he or Mamro were suffering from any special disadvantage of the kind pleaded which affected his ability to make judgments about his own best interests and the interests of Mamro during the period in which the 2018 deed was negotiated and executed. [93] On the contrary, I have found that Michael was actively engaged in the negotiation of the terms of the 2018 deed on his own behalf and on behalf of Mamro, that he was capable of providing and did provide instructions to his solicitors in response to terms proposed by Maria and in relation to matters that Michael required to be included in the deed to advance what he considered to be in his and Mamro’s best interests, and that he understood and intended that he and Mamro would be bound by the terms of the deed which they executed, including their own final amendments to the deed which they presented to Maria as a fait accompli when Michael delivered the executed deed to her on 23 August 2018. I have found that Michael and Mamro did not execute the 2018 deed under pressure from Maria or any other person. The defence and cross-claim alleging unconscionable conduct must be dismissed for that reason alone.

Even if Michael and Mamro had established that they were suffering from a relevant special disadvantage, they would not have established that Maria had actual or constructive knowledge of that special disadvantage, or that she unconscientiously took advantage of it, for the reasons explained at [192]-[297] above. According to Michael’s own evidence, he hid from Maria the problems that he claims to have been suffering at the time (which have not been established). [94] Maria was astute to ensure that Michael and Mamro had independent legal advice throughout the negotiation of the 2018 deed. [95] I have found that the terms of the 2018 deed as signed were not unfair to Michael or Mamro. [96] The defence and cross-claim alleging unconscionable conduct would have been dismissed for those reasons.

For the reasons explained at [25]-[31] and [192]-[297] above, I reject Michael and Mamro’s contention that his sisters exerted undue influence over Maria inducing her to procure them to execute the 2018 deed. In any event, Maria makes no claim have been the subject of any such undue influence by her daughters, and has chosen to sue Michael and Mamro to enforce the 2018 deed. As was submitted on behalf of Maria, this contention advanced by Michael and Mamro therefore has no relevance to the determination of Maria’s claim or to Michael and Mamro’s defences and cross-claim.

For completeness, I also reject Michael and Mamro’s unpleaded contention raised throughout the hearing and in their closing submissions that the 2018 deed is void or liable to be set aside as unconscionable because it was made for the unlawful purpose of depriving Melanie of assets that Michael had inherited. I have rejected Michael’s evidence that Maria discussed any such purpose with him in connection with the negotiation of the 2018 deed. [97] Viewed objectively, the terms of the 2018 deed are not directed to the objective of depriving Melanie of any claim that she might otherwise have in respect of the Leichhardt and Annandale properties and the business assets that Michael received from Maria by way of early inheritance. There is nothing unlawful about Maria determining to bequeath the Haberfield property to her daughters, to the exclusion of Michael, having regard to his early inheritance, as recorded in clause 8 of the 2018 deed.

Section 7(1) of the Contracts Review Act provides:

Section 9 of the Act sets out various matters to be considered by the Court in determining whether the contract, or a provision of the contract, is unjust in the circumstances relating to the contract at the time it was made.

As Maria submitted, the evaluative process required was explained in the following terms by Allsop P in Provident Capital Ltd v Papa: [98]

Addressing each of the matters in s 9(2) of the Act insofar as they are relevant to the present case:

Viewed as a whole, those matters do not point to any need for the protection of Michael or Mamro in relation to the 2018 deed. Indeed, as Maria submitted, each and every one of those matters militates against rather than in favour of Michael and Mamro. In short, as I have said earlier in these reasons, Michael and Mamro were able to, and did, fully protect what they considered to be their own best interests during the negotiation of the 2018 deed and at the time that they executed it. There are no public interest considerations in the present case that warrant characterising the 2018 deed as unjust within the meaning of the Contracts Review Act in the circumstances relating to it at the time it was made. [107] The Contracts Review Act defence and cross-claim must therefore be dismissed.

As Maria submitted, Mamro would not have been entitled to relief under the Contracts Review Act in any event because s 6(1) of the Act expressly provides that “a corporation may not be granted relief under this Act”.

I acknowledge Maria’s further submission that s 6(2) of the Contracts Review Act would have precluded any grant of relief under the Act to Michael because the 2018 deed was entered into in the course of, or for the purpose of, the business of the quarry. I doubt that s 6(2), properly construed, would have precluded a grant of any relief to which Michael might otherwise have been found to be entitled under the Contracts Review Act. The business of the quarry represented only one of the underlying purposes of the 2018 deed, and the evidence suggests that the quarry business was carried on by Mamro rather than by Michael. However, it is not necessary to express a final view about the construction and operation of s 6(2) in the present case given my conclusion that the 2018 deed was not unjust in the circumstances relating to it at the time it was made.

As Maria’s submissions acknowledge, these issues do not arise in circumstances where I have found that the 2018 deed was effective as a deed and binding on all parties from 12 October 2018 and is not unenforceable or liable to be set aside by reason of unconscionability or undue influence or under the Contracts Review Act.

The 2018 deed is valid and enforceable for all of the reasons explained at [331]-[354] above. By clause 7 of the 2018 deed, Michael released and discharged Maria from the claims that he now pursues in these proceedings for a declaration that he has an equitable interest in the Haberfield property and a declaration that Maria holds 50 per cent of that property on constructive trust for him. [108]

Even if I had not held the 2018 deed to be valid and enforceable, I would have rejected Michael’s proprietary estoppel claim, which is the sole pleaded basis for those claims for declaratory relief, for the following reasons.

As Maria submitted, Michael’s claim was a claim of proprietary estoppel by encouragement. In order to succeed in that claim, Michael would have needed to establish: [109]

Those four elements are not satisfied in the present case.

As to the first and second elements, Michael has not discharged his onus of proving that Michele made the alleged promises to the effect that Michael would inherit the Haberfield property if he worked on the property (or all of the family’s properties) together with Michele. [110] It necessarily follows that Michael has failed to prove that Maria was a party to, or was aware of, those alleged promises.

I reject Michael’s pleaded contention that Maria agreed to transfer the whole of her interest in the Annandale and Leichhardt properties to Mamro at Michael’s request, in addition to leaving 50 per cent of her estate (including the Haberfield property) to Michael, in recognition of the alleged understanding between Michele and Michael that Michael would inherit the Haberfield property (or all of the family’s properties) in return for his work. There is no evidence of any such agreement. I have found that Maria agreed to transfer her interest in the Annandale and Leichhardt properties under pressure from Michael, who caused those transfers to be registered without Maria’s authority. That pressure was in the form of Michael lying to Maria about the terms and effect of Michele’s last will. [111] Moreover, Michael’s pleaded contention misstates the effect of Maria’s will dated 11 July 2007, [112] and is inconsistent with the draft deed that Maria prepared in 2011 for Michael to sign in consideration of the transfer of her interest in the Annandale and Leichhardt properties. That draft deed expressly provided that Michael had no legal or equitable interest in the Haberfield property. [113]

In relation to the third element, Michael pleaded that he relied on the alleged promises by completing considerable works at the Haberfield property (including the Haberfield extension works) and by expending additional sums to support Maria, Daniela, Adriana, and Paula at Maria’s request.

Michael has failed to prove that he completed considerable works at the Haberfield property in reliance on the alleged promises or in reliance on the alleged agreement with Maria, which have not been established. I have found that, during his childhood, teenage, and early adult years, Michael did no more work than his sisters did at the Haberfield property out of familial obligation. [114] Michael has failed to establish that he incurred the cost of work carried out to the Haberfield property in later years. [115] If Michael had proved that he incurred those costs, I would have found on the balance of probabilities that he did so not in reliance on any promise that he would inherit an interest in the Haberfield property, but in order to be able to live rent-free in the Haberfield property for an extended period as recorded in Recital G of successive drafts of the 2018 deed which passed through Michael and his solicitor without comment and which remained in the deed that Michael executed on 23 August 2018. [116] Thus, as Maria submitted, the likelihood is that Michael would have behaved in the same way regardless of whether or not the alleged promises had been made to him and regardless of Maria’s alleged agreement. [117]

Michael’s conduct, viewed as a whole, cannot be characterised as providing financial support for Maria. Michael extinguished Maria’s source of income by causing her interest in the Annandale and Leichhardt properties to be transferred to Mamro without her authority, at the same time as refusing to enter into a binding agreement with Maria to support her financially. Michael did provide some financial assistance to Maria thereafter while enjoying the benefit of having received those property interests with no consideration, and while living in her home rent-free. However, Michael was free to turn off that financial assistance at any time, and he did so as soon as it suited him. [118]

I have rejected Michael’s claim to have purchased the Belli Bar business as a form of financial support for Daniela. [119]

As Maria submitted, there is no evidence that Michael ever provided financial support for Adriana or Paula, let alone at Maria’s request.

The fourth element has not been made out in circumstances where the first three elements have not been established.

For all of those reasons, conscience does not require that Michael be declared as holding an equitable interest in the Haberfield property or that Maria be declared as holding 50 per cent of the Haberfield property on trust for Michael.

In any event, as I have already stated, I accept Maria’s submission that clause 7 of the 2018 deed is a complete defence to Michael’s proprietary estoppel claim. [120]

My conclusions at [355]-[368] above render it unnecessary to address Maria’s alternative defences to the proprietary estoppel claim under the Limitation Act, on the grounds of laches or acquiescence, and on the grounds of unclean hands.

For the reasons explained at [331]-[354] above, and it is appropriate to make the declaration sought by Maria that the 2018 deed is valid and enforceable.

For the reasons explained at [339] above, Michael and Mamro are not entitled to a declaration that they are only required to discharge the Haberfield mortgage upon the death or Maria or the sale of the quarry, whichever occurs first.

For the reasons explained at [355]-[368] above, it is appropriate to make the declaration sought by Maria that Michael does not have any equitable interest in the Haberfield property. For the same reasons, Michael’s claim for a declaration that he does have an equitable interest in that property and that Maria holds 50 per cent of the property on constructive trust for him must be dismissed.

For the reasons explained at [355]-[368] above, Maria is entitled to an order for pursuant to s 74MA of the Real Property Act requiring Michael to withdraw his caveat lodged against the title to the Haberfield property.

As was submitted on behalf of Maria, she has complied with her obligations under the 2018 deed by:

I reject Michael’s unclean hands defence referred to at [316] above for the reasons explained at [340]-[353] above.

There is no discretionary reason to refuse the orders sought by Maria for specific performance of the 2018 deed, and ancillary orders, in the circumstances of this case.

The provisions of clause 8 of the 2018 deed are set out at [272] above. Clause 8(c) contains the release in respect of which Maria seeks the approval of the Court under s 95 of the Succession Act. That section provides:

As Maria submitted, an application for approval of a release under s 95 is not a mere formality. It does not necessarily follow from the parties’ agreement to the terms of the 2018 deed which I have held to be valid and enforceable that the Court should approve the release in clause 8(c) of that deed. [123]

In determining whether to approve the release, the Court is required to take into account all of the circumstances of the case, including the events leading to the giving of the release, the estimated value of Maria’s estate or notional estate, and the matters referred to in s 95(4)(a) to (d). The matters in s 95(4)(a), (b) and (d) will be considered by reference to the party granting the release (in this case, Michael), but s 95(4)(c) will be considered by reference to both Michael and Maria. [124]

The events leading to Michael giving the release have been described in detail at [40]-[297] above. As I have said at [291] above, the 2018 deed represented a negotiated resolution of the conflict that Michael had created within his family by causing Maria’s interest in the Annandale and Leichhardt properties to be transferred to Mamro without Maria’s authority, [125] by taking the marble business and its assets for his new company MTP Marble Granite Sandstone, [126] by persuading Maria to mortgage the Haberfield property so as to assist Mamro to finance the purchase of its quarry property, [127] and by failing to taking any steps to cause Mamro to repay the debt secured by that mortgage even after the Annandale property was sold for $3,150,000 in October 2017. [128] By that conduct, Michael had obtained the benefit of the whole of Maria’s interest in the Annandale and Leichhardt properties, and the whole of the value of the marble business, in circumstances where he had stood to inherit only 50 per cent of those property interests and only 50 per cent of the business, with his three sisters to inherit the remaining 50 per cent (as tenants in common), under Maria’s will dated 11 July 2007. By taking his “early inheritance” as it is described in the 2018 deed, Michael reduced his sisters’ potential inheritance under Maria’s will dated 11 July 2007 to 50 per cent of the Haberfield property and Italian apartments, assuming that those assets formed part of Maria’s estate at the time of her death. The Italian apartments have since been sold.

The inventory of property annexed to the grant of probate in favour of Maria in respect of Michele’s last will estimates the value of Maria’s 50 per cent interest in the Annandale property as $750,000 and the value of Maria’s 50 per cent interest in the Leichhardt property as $550,000. By the time the 2018 deed was signed, Mamro had sold the Annandale property for $3,150,000, which implies that the 50 per cent interest in that property that Michael had caused to be transferred from Maria to Mamro unencumbered had a value of approximately $1,575,000 by the time Mamro sold the Annandale property. There is no evidence of the value of the 50 per cent interest in the Leichhardt property that had been transferred to Mamro or the value of the marble business that Michael appropriate for MTP Marble Granite Sandstone. However, it can be said that the value of Maria’s assets that had been transferred to directly or indirectly to Michael as at the date of the 2018 deed was at least $1,575,000. In addition, Michael had received the benefit of Maria’s financial support in the form of the mortgage that she had granted over the Haberfield property to secure the loan that financed Mamro’s acquisition of the quarry property. There is no evidence of the value of the quarry property or the value of any quarry business conducted on that property. Maria had also provided rent-free accommodation to Michael for many years, and the 2018 deed set out the terms on which she would continue to do so.

Taking all of these matters into account, it is likely that the value of the assets and financial support that Michael had directly or indirectly received from Maria at the time the 2018 deed was entered into significantly exceeded $1,575,000.

As a result of the transactions referred to above, it is likely that the Haberfield property will be the only material asset of Maria’s estate following her death. Correspondence between Maria and her solicitor in December 2009 attributes an estimated value of $3,100,000 to the Haberfield property at that time. There is no evidence of the present value of the Haberfield property.

In my opinion, it was both advantageous and prudent for Michael to make the release in August 2018 in order to quell the family dispute that had arisen from his conduct referred to at [380] above, to secure a legal right of residence at the Haberfield property for himself and his daughter which Michael regarded as important in the context of his forthcoming family law dispute with Melanie, and to secure a right of first refusal to purchase the Haberfield property from Maria’s estate following her death which Michael said in cross-examination was also very important to him. I reject Michael’s submission that the release was neither prudent nor advantageous to him because it denied him an entitlement to the Haberfield property that had been promised to him. No such promise has been established. Nor has it been proved that Michael incurred the costs that he claimed to have incurred on improving the Haberfield property in reliance on those alleged promises. [129]

In all of the circumstances referred at [380]-[384] above, it is my opinion that the provisions of the 2018 deed, including the release, were fair and reasonable at the time the deed was made, both to Michael who had received extensive financial support and significant assets with considerable value by way of early inheritance and to Maria who wanted to leave her remaining asset to her other three children.

As I have found at [207]-[297] above, Michael took independent legal advice in relation to the release, which appeared in three successive drafts of the deed that were either provided to his solicitor for consideration or prepared by his solicitor for consideration by Maria’s solicitor. [130] It is clear from all of the evidence referred to at [207]-[297] above that, after considering and taking Michael’s instructions in relation to each of those drafts, Michael’s solicitors did not object to or propose any amendment to the release in clause 8(c) of the 2018 deed. I have rejected Michael’s evidence that he “wasn’t all there” at the time, and I infer that he gave due consideration to his solicitor’s advice in the course of giving instructions which raised no objection to clause 8(c) of each draft of the deed, and in signing the deed including clause 8(c) after his solicitor read through it with him on 23 August 2018. There is no reason to think otherwise. Michael did reject his solicitor’s advice to continue the negotiation process rather than presenting his final round of amendments to Maria as a fait accompli on 23 August 2018, but that does not suggest that he failed to consider his solicitor’s advice about the substance of the terms of the document that he was signing, including the release in clause 8(c).

For those reasons, I accept the submission made on behalf of Maria that the Court should exercise its discretion to approve the release in clause 8(c) of the 2018 deed pursuant to s 95 of the Succession Act.

The 2018 deed is valid and enforceable for all of the reasons explained at [331]-[354] above. Michael and Mamro are in default under clause 5.1 of the 2018 deed by reason of their failure to take all steps necessary to discharge the mortgage over the Haberfield property by 2 October 2020. Maria’s costs incurred as a result of that default include the costs of these proceedings. Maria is therefore entitled under clause 5.1(c) of the 2018 deed to an order that Michael and Mamro pay her costs of the proceedings on an indemnity basis. [131]

For all of the foregoing reasons, the orders of the Court are as follows: