Samawi v Faraone

1. [1]

   LEEMING JA: Ms Raffaella Samawi proceeds by way of summons against her parents Mr Giuseppe Faraone and Ms Claudia Faraone, seeking a declaration that they are trespassers upon property in Stanhope Gardens of which she is the registered proprietor and an order that they vacate the land within 14 days. Sadly, this is the suburban home which all members of the family of eight have called home for at least some of their lives. I shall refer to it as “No 35”. Mr Giuseppe Faraone, by a cross-summons amended with leave on the first day of the hearing, seeks orders that No 35 is held on trust for him and an appointment of trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW), or alternatively, a declaration that No 35 stands charged to secure for his benefit the repayment of the amounts contributed to the acquisition, improvement and/or maintenance of the property.

Family background

1. [2]

   I do not understand anything in this section to be controversial. Mr Giuseppe Faraone was born in Italy in 1959. He married Ms Claudia Faraone in 1983. The couple had six children: Fabiola (born 1985), Raffaella (born 1986), Serena (born 1989), Debora (born 1994), Sonia (born 1997), and Luca (born 2006). Claudia and her five daughters migrated to Australia in 1997, with Giuseppe coming later and continuing to reside in Italy during the northern hemisphere summer holidays. Fabiola married Mr Christopher Bonomo in 2006. Raffaella married Mr Mark Samawi in 2015 (according to the marriage certificate). Without intending disrespect or undue informality, I will follow the course employed by counsel and refer to family members by their given names.

2. [3]

   Giuseppe said that his wife and daughters moved to Australia in 1997 while he remained in Italy, working as a high school teacher and in a family business (a sports bar) which mainly operated in the Italian summer holidays. Between 1997 and 2008 he travelled between Italy and Australia to manage the sports bar. The family rented in Dean Park and later (from about 2000) in Woodcroft.

3. [4]

   When the daughters began working, they paid board of around $150 per week. Giuseppe said that in around 2006, each of Fabiola, Raffaella and Serena were paying $150 each week. Fabiola said that her parents took half her wages as board, until she began to work, unpaid, in a family business (although Giuseppe says she was paid), and that when Christopher moved into Woodcroft, he paid $150 per week board on her behalf. Raffaella said she worked as a waitress at a restaurant and the Blacktown Workers Club from 2002 to early 2006, and claimed that she paid $200 per week board. Serena said she paid board of about $150 per week in 2006.

4. [5]

   To anticipate what follows, when in 2010 No 35 became owned by Raffaella, some family members (including Claudia) paid rent to her, including pursuant to formal written residential tenancy agreements. Raffaella says that this reflected the fact that she was the owner of the property. Giuseppe and Claudia say that this was a device to obtain the benefit of tax deductions, at least for periods when Raffaella was not living at No 35, and did not depart from the common understanding that the house was Giuseppe’s, with the payments of rent being used to service the mortgage and pay other property expenses.

5. [6]

   Giuseppe and Claudia separated in 2005 and were divorced in 2006. Giuseppe said that “[a]lthough we divorced and I rented a separate place in the Central Coast, we were amicable and I still spent a lot of time around the family and in the family home and continued supporting them financially”. Raffaella did not dispute that in terms, but said that Giuseppe would mostly be in Italy between May and September, was not regularly at No 35, and “would come and go as he pleased”. Serena said “Dad was still around the family home regularly and was welcome around the house”.

6. [7]

   Raffaella, Fabiola and their husbands Mark and Christopher gave evidence in the plaintiff’s case and were cross-examined. Giuseppe, Claudia and Serena gave evidence in the defendants’ case and were cross-examined.

7. [8]

   As is obvious from the relationship between the parties and the fact that Fabiola gave evidence in Raffaella’s case, while Serena gave contradicting evidence in her parents’ case, this is a family which is deeply divided. Although Giuseppe separated from Claudia in around 2006, the pair are now reconciled, at least for the purposes of this litigation where they made common cause. Both live in No 35. There was a large falling out between Giuseppe and Raffaella in 2012, based upon her choice of boyfriend, and later husband, Mark. As will be seen below, the emails exchanged at that time, when Raffaella left home, were central to the litigation. In litigation in which a great deal was in issue, there was no dispute about this. Giuseppe gave evidence in his affidavit that:

8. [9]

   Those were paragraphs 115 and 116 of Giuseppe’s affidavit. Raffaella responded in terms to paragraphs 110, 111, 112, 113, 114, 117, 118 and 119 of his affidavit. She made no response to paragraph 116. In response to paragraph 115, she said that she had never stored her belongings at No 35, but had paid for third party storage (and annexed receipts), and said that:

9. [10]

   Mark also put on an affidavit responding to Giuseppe’s evidence. He did not respond to paragraph 115. He said that the apprehended violence order was not taken out by Giuseppe, and that Raffaella did not reside at No 35 during his separations from her, but would stay with an uncle at Colyton. He said “I preferred to avoid Giuseppe because he has never liked me due to my Arab ethnicity”.

10. [11]

    Records of the Local Court were tendered which show a series of applications made by the police in separate proceedings brought in 2015, 2017, 2018, 2020 and 2024 at least some of which appear to involve apprehended violence orders against a person of his name in various courts in western Sydney (Ex 1 p 107). Mark acknowledged that the police had taken over a prosecution after an original complaint by Raffaella in 2018, although he said that subsequently she did not wish to press charges (T 71). A little strangely, Mark was unable to recall the circumstances concerning charges also brought against a person of his name in 2020, although he did not deny that he was the man accused of domestic violence offences (T 73).

11. [12]

    It is reasonable to assume that Mark and Raffaella may attribute to Giuseppe the fact that Mark was imprisoned.

12. [13]

    Further, this litigation is not the first time Raffaella has sought to exclude her parents from No 35. She commenced proceedings in NCAT, where she was unsuccessful, on the bases that by 2023 there was no residential tenancy agreement and there were defects concerning the termination notice. The reasons of the tribunal constituted by a Senior Member were in evidence (CB 1076-1082). No one submitted that the outcome of that litigation gave rise to any issue estoppel or res judicata relevant to the present proceedings. My present view is that s 91 of the Evidence Act 1995 (NSW) does not apply to the reasons (because the decision of the Consumer and Commercial Division was one following a hearing at which the rules of evidence did not apply, with the consequence that NCAT was, for that purpose, not an “Australian court”; cf the disciplinary proceedings heard and determined in NCAT considered in Quach v MLC Ltd (No 6) [2021] FCA 271 at [8]-[10]). However, I heard no submissions on this, and I have not relied on the reasons.

13. [14]

    There were many paragraphs of Serena’s affidavit to which Raffaella made a response, but she did not respond to the final two paragraphs of the affidavit, nor was there cross-examination on them:

14. [15]

    Thus there are deep divisions in this family, and that is reflected in their starkly divergent evidence about the central issues, which concern the basis on which Raffaella acquired title to No 35 and the way in which the mortgage was serviced.

15. [16]

    Speaking very broadly, the real issue in this trial arises on the cross-claim. It is whether Giuseppe is correct to say that he serviced the mortgage over No 35 and made many other payments towards the upkeep and improvements of the land, in addition to the original $280,000, which was not a gift. According to him, and he is supported by Serena and to a lesser extent Claudia, No 35 was in Raffaella’s name but she did not have beneficial title, the purpose of her having the trappings of beneficial title was in order for her to obtain tax benefits from the interest payments withdrawn from her account, and at all times the land was held beneficially by Giuseppe.

16. [17]

    On the other hand, Raffaella maintains, and she is supported by Christopher, Fabiola and Mark, that she paid for all of the mortgage payments and other expenses and improvements to No 35, with the result that her legal ownership is unfettered by any interest on the part of Giuseppe or Claudia recognised by equity.

17. [18]

    Of course, it is possible that the position is intermediate between those extremes.

18. [19]

    There are other less important issues, concerning the payment of various expenses including building work on No 35, and whether Giuseppe provided his labour on various improvements to No 35. And there are numerous factual issues peripherally related to the cross-claim, including those which bear on the nature of an amount of $280,000 provided by Giuseppe to Christopher when No 35 was first acquired.

Three introductory propositions

1. [20]

   Until some three months before the trial, Giuseppe and Claudia were unrepresented. They served short affidavits which may have been prepared without legal assistance and which were ultimately not read. This may explain some aspects of the way the litigation was prepared; it also caused the vacation of a hearing originally listed on 17 July 2025.

2. [21]

   Giuseppe and Claudia did not file pleadings. They did file a document titled “First Cross-claim Cross-Summons” but that was a cross-summons, identifying prayers of relief but making no allegations of material fact or law. This represented a departure from the rules. Giuseppe and Claudia sought relief by way of a constructive trust, and r 6.3(e) of the Uniform Civil Procedure Rules 2005 (NSW) applied. I am not critical of Raffaella for permitting the matter to go to trial on a summons and affidavit, because it was in everyone’s interest, and accorded with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), for there to be a trial sooner rather than later. (Indeed, Raffaella’s claim for an order that Giuseppe and Claudia vacate the land on its face engages r 6.3(f) of the UCPR, although it is difficult to see any utility in a pleading of a registered proprietor’s claim for possession.) The reason for mentioning the absence of any pleading is that it has meant that the allegations on which Giuseppe bore the onus were not clearly identified in advance of that trial, and that Raffaella did not have the opportunity to admit or deny them. At the end of the day, little turned on this. The history of legal title to the property is clear. There is continuing uncertainty as to the precise consideration paid for No 35 when Christopher and Fabiola transferred title to Raffaella, but that is unlikely to have been cured by pleadings. There was no dispute that Giuseppe had supplied $280,000 to the original purchase price, although the character of that contribution was keenly disputed.

3. [22]

   It is as well to explain the legal and practical aspects of the deposits and withdrawals of “cash”, the borrowings of money to acquire property and its repayment by electronic “transfer”.

4. [23]

   There is no doubt that, speaking strictly, Raffaella paid the totality of the purchase price of No 35. She did so with funds borrowed by her, against the security of a registered mortgage in favour of CBA over No 35. Even if (as Giuseppe contends) he made all of the mortgage repayments in point of fact, that does not prevent Raffaella being the sole purchaser. A person who acquires property with borrowed funds is nonetheless the purchaser: Calverley v Green (1984) 155 CLR 242 at 257; [1984] HCA 81. Nor is that affected even if another person is solely responsible for servicing the mortgage debt; as Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 illustrates, where the man and woman jointly borrowed to fund the purchase price, and the man alone made mortgage repayments, the money provided by the woman as joint borrower represented a contribution by her to the purchase price.

5. [24]

   There is also no doubt that Raffaella, once again speaking strictly, paid every mortgage repayment. That is because CBA (and later Macquarie Bank) debited “funds” in Raffaella’s 920 account for the purpose of making regular weekly or monthly payments in reduction of the loan account. On no occasion were those debits anything other than an adjustment of the running balances in Raffaella’s accounts: the 920 account and the account reflecting the debt secured by the mortgage over No 35. It is necessary and appropriate to analyse the position not at the artificially strict legal level summarised above, but at the level of practical reality (which, in strict point of law, involves a deal of tracing in equity through a mixed account). Giuseppe’s claim was that he made money available into Raffaella’s 920 account in order for there to be funds which could meet a debit from that account to credit Raffaella’s debt secured by the mortgage. Giuseppe claimed that he made those deposits, sometimes by electronic funds transferred from his own account with Westpac, and sometimes by cash deposits involving a deposit of bank notes at a CBA branch (mostly Rouse Hill or Blacktown) to the credit of Raffaella’s account, and that claim carried with it the proposition that the debit from Raffaella’s account a few days later in reduction of her debt secured by the mortgage is to be regarded as a payment by him. I shall refer below to the electronic transfer from an account controlled by Giuseppe on 24 January 2012 of $4,455, representing precisely four of what were then the automatic weekly mortgage payments of $1,113.75, following Raffaella’s advice to him that “[y]our repayments are $4,455 and are due the 1st of every month”.

6. [25]

   None of the parties or witnesses had any difficulty in understanding the practical reality of what has been (somewhat laboriously) summarised above. And this is a case where, consistently with the reasoning in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner, the availability and appropriateness of relief in equity by means of a constructive trust turns on the practical reality of payments and their traceable proceeds. Another, simpler, way of making the same point is to observe that the legal truth that strictly speaking Raffaella paid for the entirety of the purchaser price (from funds borrowed by her) and the entirety of the repayments of that debt (from debits from her 920 account) is no answer to the claim that she holds No 35 on constructive trust by reason of an assumption shared by her and Giuseppe that she would be a trustee and he would make it possible for her to pay the purchase price and service the mortgage debt.

7. [26]

   Because the parties are diametrically opposed on the main issue, and many other issues, and because those issues concern the payment of money over many years, commencing nearly two decades ago, the appropriate course is to commence with an overview of the competing accounts in the testimonial evidence, in the light of which I shall proceed to address the documentary business records which I am satisfied are reliable. That includes the conveyancing and title records (which are very incomplete) and the banking records (which are voluminous but also materially incomplete), on both sides. The approach accords with what was said by Keane JA in Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], which in turn accorded with what had been said in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28]-[29]:

8. [27]

   That is not a proposition of law, but reflects an obvious practical reality, and has been regularly applied: see for recent appellate examples Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284; [2022] FCAFC 75 at [15], Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [25] and [64]; Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4 at [44].

Overview of testimonial evidence

1. [28]

   Claudia and Giuseppe said that the family had discussions in 2006 regarding the purchase of property. Claudia recalled a conversation with Giuseppe, Fabiola, Christopher, Raffaella and Serena, in which Giuseppe stated, “We’ll buy the first house and you can all live with your mum in there. It’s gotta go in Chris and Fabiola’s name and you all pay board at home and I’ll look after the loan”. Giuseppe recalled very similar words.

2. [29]

   In the middle of 2006, Giuseppe claimed to have approached the real estate agent Mr Lee (who managed the property they were renting) who put Giuseppe in contact with Mr Lee’s daughter, Ms Sue Lee, who had an agency in Stanhope Gardens. He stated that he had a conversation with Christopher and Fabiola to the effect that:

3. [30]

   Giuseppe said that he gave Christopher $35,000 to $40,000 towards the deposit for No 35, which derived from the sale of a takeaway shop owned by Giuseppe for $80,000, the proceeds of which going into Fabiola’s bank account as Giuseppe was overseas Giuseppe claimed that Fabiola owed additional amounts that she had kept from this sale in the form of $8,757.78, which Fabiola signed. As will be seen, there was a deposit of $35,000 in Fabiola’s account at this time, however, Fabiola contended that it was her money, deriving from the sale of a business which she owned (see paragraph 38 of her affidavit and T 59).

4. [31]

   However, it was common ground that Giuseppe contributed a payment of $280,000 to the settlement of the purchase of No 35. That sum derived from the proceeds of sale of a property in Italy which had long been in his family. His evidence was that he “did not gift the property to Christopher and Fabiola” as this was “about seventy percent (70%) of [his] net worth at that time” and he “could not afford to give $280,000 away to one child in [his] circumstances”. Fabiola and Christopher disputed this. They said that the money was a gift, and that that is borne out by a letter signed by Giuseppe saying that it was a gift.

5. [32]

   Giuseppe also claims to have contributed $50,000 to Christopher and Fabiola’s wedding, as well as their honeymoon to the Canary Islands and furniture for the Premises. This is controversial, but peripheral to the main issues.

6. [33]

   Giuseppe also said that he paid for Council rates, water rates, property expenses, and loan repayments. Raffaella acknowledged that he made some payments, but that for the most part she paid the ongoing expenses as well as the loan repayments.

7. [34]

   Giuseppe also said that he performed regular work on the property, including, inter alia, concreting, changing doors, blinds, tiles, and retaining walls. He also claimed to have spent $20,000 on replacing all doors to solid timber doors, $10,000 cedar blinds, $2,200 for bricks, $1,500 for plumbing materials and drainage work, and $5,000 on flyscreens and sliding doors. Giuseppe has retained the original records of all Council and development records. For her part, Raffaella contended that while Giuseppe was involved in dealing with tradesmen, especially after he returned to live at the property, he did not perform construction work, and he paid for none of it.

8. [35]

   The house at No 35 was purchased in Christopher’s name in 2006. The entire family (except Giuseppe) then moved into No 35. One year later, Fabiola and Christopher bought the property next door, No 37. They moved out of No 35 and into No 37 once it was built. Giuseppe claimed to have “paid the holding deposit for that property of about $2,000”. During Fabiola’s second pregnancy, Fabiola and Christopher moved back into No 35 (and recommenced paying board) before then returning to No 37. Giuseppe claimed that Fabiola and Christopher rented out No 37 during this period, and paid board of $450 total per week. In 2010, Claudia stated that all her children except Fabiola were living in No 35.

9. [36]

   Claudia recalled that Fabiola said she no longer wanted the house in her name. That led, according to Claudia, to a conversation between Serena, Raffaella and their parents concerning who would take over No 35. Giuseppe said that Christopher and Fabiola were also present. Claudia’s evidence was that Raffaella said, “I’ll take the loan on” before Giuseppe said, “Ok, I’ll keep paying everything”. Claudia’s understanding was that Giuseppe would keep paying for everything and it would go into Raffaella’s name to help her buy a house. It was then transferred from Christopher and Fabiola to Raffaella’s name, with Giuseppe signing as a witness to the transfer.

10. [37]

    Raffaella said that she did not believe that Giuseppe owned No 35, and that she had offered to buy No 35 as an investment, knowing that Fabiola and Christopher could not service the mortgage along with No 37, and in order to provide a home for her mother and her younger siblings.

11. [38]

    The memorandum of transfer of No 35 from Christopher and Fabiola to Raffaella, dated 2 November 2010, acknowledged receipt of the consideration of $385,000. Giuseppe signed the transfer as a witness.

12. [39]

    There is a dispute concerning a payment of $40,000 made at about this time. According to Claudia, Raffaella approached her parents complaining that Fabiola had taken out a loan in this amount against the property to finance work on her own house. Claudia said that a dispute arose between the sisters and that ultimately Raffaella paid the $40,000, which Claudia asserted was owed to Giuseppe. Giuseppe said that during the transfer process, Fabiola enquired whether Raffaella could borrow $40,000 against the loan for No 35, for renovations at No 37. The amount was subsequently repaid. On the other hand, Fabiola, Christopher and Raffaella said that the amount was a break cost for the loan.

13. [40]

    Between 2010 and 2022, Raffaella entered into residential tenancy agreements with members of the family in respect of No 35. Giuseppe contended that this was done on the advice of an accountant, who advised Raffaella that she could reduce her tax liabilities by declaring that she was leasing the property, notwithstanding that she was in fact residing in the property. Raffaella contends that her accountant had been “negatively gearing my assets negligently and without my knowledge”. She said that this led to a tax debt owed by her of approximately $65,000, which amount was “reduced on account of [the accountant’s] negligence”. A document lodged with the Administrative Appeals Tribunal in proceedings commenced in 2015 records an agreement that Raffaella’s tax liability be amended by reducing the penalties for the financial years ended 30 June 2012 and 2013 to $8,267.64 and $6,433.56, and a note stated that Raffaella accepted the substantive tax liability for those two income years (CB 587). No other documents filed in the Tribunal or relating to the reassessment of Raffaella’s tax liability were in evidence.

14. [41]

    Claudia said that she had many conversations with Raffaella when she said words to the effect “Mum I will never kick you out of here, I know this is dad’s house”.

15. [42]

    Raffaella married Mark in 2015. The couple had been living at No 35, but in around 2012 moved into a house in Baulkham Hills and later Plumpton. Claudia said that various occasions of domestic violence caused Raffaella to return periodically to No 35.

16. [43]

    Giuseppe moved into No 35 full time in 2019.

17. [44]

    In 2022, when Claudia, Luca and Giuseppe were living in No 35, the other members of the family having moved out with their partners, Raffaella, Mark and their son Isaac moved in. Raffaella said that prior to moving in, she had a conversation with her parents expressing her desire to move into the property. She says that they agreed that Giuseppe and Claudia would continue to live there until they found a new place to live, and that this was on the condition that the parents would contribute to half of the living expenses, including the mortgage, groceries and bills, and that Luca would also reside there while he was finishing school. Raffaella says that despite this agreement, she paid most of the bills and living expenses, and her parents only contributed to the electricity bill and paid rent of $1,000 per fortnight.

18. [45]

    In contrast, Giuseppe said that the arrangement when Raffaella and Mark moved in was that those two would pay half of the property expenses as rent, which was intended to be a temporary arrangement until they could “buy [him] out” of No 35.

19. [46]

    While the family was living together in No 35, Giuseppe and Claudia entered into a lease for an apartment in The Entrance. Raffaella says that they still continued to reside part-time in No 35, while moving their belongings. Giuseppe says that Raffaella had asked them to move out due to Mark’s preferences, and that they did so but continued to pay half of the property expenses, on the understanding that Raffaella would pay him $700,000 for the property in accordance with the original arrangement.

20. [47]

    Giuseppe says, however, that Raffaella was unable to obtain a loan in this amount to buy the property. He says that he was told by a broker that he was unable to obtain a loan himself due to his age and income.

21. [48]

    In contrast, Raffaella said that she and Mark decided to sell the property in 2022, and offered to sell it to Giuseppe for $1.1m. Raffaella and Mark left the premises. She said that Giuseppe attempted to obtain a loan but was unsuccessful. In 2023, Giuseppe advised that he had obtained approval for finance, but Raffaella said that when she asked him for documentation, he claimed ownership of the property and threatened legal action against her. She said she has been denied access to the property since May 2023. The present proceedings were commenced after her application in NCAT was dismissed.

Legal title to the properties

1. [49]

   Legal title to No 35 was transferred to Christopher, in late 2006. In 2009, Christopher transferred an interest for nominal consideration to Fabiola so that they became joint tenants from 6 April 2009. In 2010, Christopher and Fabiola sold No 35 to Raffaella, who at all times thereafter has been sole registered proprietor.

2. [50]

   Two other properties are relevant to the litigation. One is the neighbouring residential house, No 37, which Christopher and Fabiola purchased in 2008. Christopher said they did so using the equity in No 35. The second is vacant land in Queensland, which Raffaella accepted she purchased at a discount with the assistance of her father. Although at one stage she threatened to sell it, she retained title until 2023 (see below). There are many fewer documents available concerning No 37 and the Queensland land than there are concerning No 35. As it turns out, the financial records concerning the Queensland land assist in understanding the basis on which Raffaella acquired title to No 35 in 2010.

3. [51]

   Documents prepared in October 2006 by a mortgage advisor who operated under the name “Aussie Mortgage Market” were in evidence. They show that Christopher’s application was approved by “Homeside Lending”, a business name for a division of the National Australia Bank Ltd (NAB).

4. [52]

   Through the advisor, Christopher sought a 30-year first home owner’s mortgage, in the amount of $323,000. The Loan Submission Notes state that a deposit of $35,000 had been paid, and anticipated that Chistopher would receive the $7,000 First Home Owners Grant. The application was processed on the basis that Christopher’s annual income as a concreter was $46,000 based on his group certificate for the previous 4½ months with Nepean Concreting, and that his annual income based on year to date figures would be around $50,000.

5. [53]

   The application was accompanied by a letter signed by Giuseppe:

6. [54]

   Interpolating here, Raffaella said that the letter bore its ordinary meaning. Giuseppe said it was a document intended only to permit the loan to be made. He was squarely confronted with the fact that on his case it was a false document designed to cause a bank to lend money on a false basis.

7. [55]

   The contract for sale of land from third party vendors to Christopher stated a purchase price of $545,000 with a deposit of $54,500.

8. [56]

   The settlement sheet for the conveyance was not in evidence. However, as will be seen below, Fabiola’s Westpac account shows deposits of $20,334.08 on 19 September 2006 and $324,218.46 on 18 October 2006 (Ex 1 76, 79). There are withdrawals at Blacktown of $13,708 on 25 September, $12,065 on 2 November and $242,712.11 on 9 November 2006. This is consistent with Giuseppe’s evidence that the $280,000 “came from a property that I sold in Italy, Minturno where I lived with Claudia and the children before coming to Australia” (CB 71).

9. [57]

   The loan documents and account statements for No 35 when owned by Christopher and later co-owned by Fabiola were not in evidence. But there is no reason to doubt that the purchase price was other than as was recorded on the contract for sale of land. Accordingly, slightly more than half of the purchase price was paid by the admitted $280,000 transfer of money sourced from the sale of property in Italy.

10. [58]

    A “Homeside Lending” deposit book was in evidence, which recorded deposits totalling $46,150 from the period 9 December 2006 until 16 January 2009. There was an issue whether Christopher or Giuseppe paid those deposits. Christopher maintained he paid them all. Giuseppe said in cross-examination:

11. [59]

    On the other hand, Christopher said he made the payments:

12. [60]

    There was no handwriting evidence concerning the deposit book receipts.

13. [61]

    There is no dispute that Giuseppe contributed $280,000 towards the purchase of No 35. There is a lively dispute as to the character of that contribution, whether it was a gift or a loan or a contribution of part of the price of land owned beneficially by him.

14. [62]

    The sale of No 35 by Christopher and Fabiola to Raffaella was scheduled to complete on 1 December 2010, and all indications are that that occurred on that date.

15. [63]

    There are three seemingly contemporaneous business records bearing on the conveyance of No 35 to Raffaella in 2010. All were tendered by Raffaella.

16. [64]

    The first is a document on the letterhead of the solicitor who had acted for Christopher in 2006, and who appears to have acted for both sides in 2010. The letter in the form tendered is dated 14 June 2023 and is not signed, but that is consistent with an electronic version with a “floating” date having been obtained around a year before Raffaella commenced proceedings. The document contains a heading which includes “Your Ref NO.:90000970558 – SSR18979272”. It identified, in addition to small amounts for the firm and for bank cheques, five payments that were required on settlement:

    1. (1)

       Bank Cheque – Commonwealth Bank of Australia $431,356.66;

    2. (2)

       Pay-out of Personal Loan of Raffaele [sic] Faraone $35,000.00

    3. (3)

       Pay-out of Current Home Loan of Raffaele [sic] Faraone $165,500.00

    4. (4)

       Pay into CBA Personal Account of Raffaele [sic] Faraone $14,333.34.

    5. (5)

       Bank Cheque – Office of State Revenue $23,185.00.

17. [65]

    The second is what appeared to be an internal Commonwealth Bank document relating to the settlement of No 35 (CB 1038). It bears the same reference “SSR18979272” and the same account number 90000970558, described Raffaella as the purchaser, identifies her solicitor, the property, states that a certificate of title, discharge of mortgage, notice of sale, transfer and final search are to be collected, and adds the following “Special Instructions”:

18. [66]

    The third are documents which Raffaella described as (and which bear the appearance of being) the loan application for No 35 (CB 508-515). These stated that the amount of the loan was $670,315, it was a 30 year loan by an owner-occupier who was not a first home owner, the interest rate was 6.99% calculated by reference to an “Employee Benefits Program”, the purchase price was $615,000, that Raffaella had cash or savings available for purchase of $5,383.62 but was relying on an “equity gift” of $167,000, that the stamp duty was $23,165, and that there would be repayment of existing loans in the amount of $199,436.79. The contemplated fees included $127.90 for “Registration of discharge of mortgage (QLD)”. The document stated the proposed monthly mortgage repayments would be $5,265.

19. [67]

    It will be seen below that the financial records which are available largely corroborate what was recorded on Raffaella’s loan application.

20. [68]

    If the settlement sheet and the loan application are regarded as accurate, then the transfer was assessed at a value of $615,000. That may be derived from the stamp duty calculations. In 2012, s 32 of the Duties Act 1990 (NSW) stated that for dutiable transactions where the dutiable value was more than $300,000 but not more than $1,000,000, the duty was $8,990 plus $4.50 for every $100 by which the dutiable value exceeded $300,000, and 4.5% x $315,000 + $8,990 = $23,165, which is $20 less than the amount stated in the letter and the application, and that $20 may be accounted for by the nominal duty of $10 paid on other dutiable documents in accordance with s 18 where ad valorem duty has been paid.) Further, the amount of $615,000 coincides with the stated purchase price in a loan application made by her to the CBA.

21. [69]

    Raffaella’s banking records demonstrate that after 1 December, there are regular loan repayments of $1,113.75 on 3, 10 and 17 December 2010, rising to $1,120 on 24 and 31 December, withdrawn from her “320” account and credited to a new “603” account (throughout these reasons, I shall abbreviate account numbers by their last three digits). I shall address these in more detail below. Those amounts are consistent with a 30 year loan at 6.99% on a principal of $670,315. (To explain why: a 30 year loan involves 360 monthly repayments of principal and interest, and 6.99% per annum is 0.005825 per month. Monthly repayments of principal and interest over a 30 year term may be calculated by the formula P x R x (1+R)^360 / ((1+R)^360)-1). Thus the repayments are $670,315 x 0.005825 x 1.005825^360 / (1.005825^360 – 1) = $4,455 to the nearest dollar, which is precisely 4 x $1,113.75, being the repayments on 3, 10 and 17 December 2010. It seems that it was determined (following a course taken by many borrowers), to make weekly repayments of one quarter of the monthly figure (thereby making 52 rather than 48 payments each year; an email from Raffaella to Christopher dated 29 March 2014 (CB 577) mentions this, which must have been familiar to Raffaella (who is described as a “Mobile Banker”): “as you are paying monthly, you are not shaving anything off the interest, you are paying the bare minimum”.)

22. [70]

    The memorandum of transfer (CB 1037) stated that the consideration was $385,000. The transfer was stamped, but at $10. The $10 stamp contained a handwritten dated “1/12/10” which corroborates with the banking documents concerning the day of settlement.

23. [71]

    No contract for sale of land or memorandum of transfer with ad valorem duty was tendered. It is clear that the $385,000 stated on the transfer was a considerable undervalue. It is substantially less than the price paid by Christopher in an arms-length transaction in 2006. It is consistent with a document signed by Christopher and Fabiola dated 26 October 2010 stating that they gave No 35 to Raffaella “for the amount of $383k and the equity for the property is [being] given to her as a gift” (CB 504).

24. [72]

    I now come to an important point. Taking the documents tendered by Raffaella at face value, far more was borrowed than was needed to acquire title to No 35 from Christopher and Fabiola. The settlement sheet states that some $200,000 of the amounts required at settlement would be used to discharge a “Personal Loan of Raffaele [sic]” and a “Current Home Loan of Raffaele [sic]”. The settlement sheet also stated that some $14,333 would be paid into her personal account. The accuracy of those propositions is borne out by a close analysis of the banking statements. In the months prior to 1 December 2010, there were regular repayments from Raffaella’s 320 account of a “507” account and a separate “803” account. The debits associated with the 507 and 803 accounts cease after 1 December 2010. To anticipate what follows, I have concluded that:

    1. (1)

       The account ending in 507 is the same account associated with regular debits from Raffaella’s 920 account since at least 20 February 2008, consistently with the Queensland land, and thus it appears that “CBA H/L” is a reference to a home loan, and that loan was repaid on 1 December 2010.

    2. (2)

       The account ending in 803 is an account which is associated with a deposit of $12,273.11 on 18 November 2009 and repayments thereafter of $180. It seems probable that “CBA P/L” is a reference to a personal loan, and that loan too was repaid on 1 December 2010.

25. [73]

    Finally, there is a deposit into Raffaella’s 920 account on 1 December of $14,032.45.

26. [74]

    All this aligns with what is stated on the settlement sheet. Unusually, this is not a case where the whole of the funds at settlement are directed to discharging existing secured indebtedness on the property and paying the “equity” to the vendor. This is a case where some $214,000 of the $615,000 borrowed against a registered mortgage over No 35 was used to pay existing debt owed by Raffaella or to place some $14,000 in her hands. The rest was used to pay for stamp duty or to discharge the debt owed by Christopher and Fabiola on their mortgage.

The banking records

1. [75]

   It is unusual for a daughter to be seeking to evict her father and mother. It is also unusual for there to be such diametrically opposed testimony. Raffaella says that she paid all of the mortgage payments (and before then, Christopher says that he paid them). Giuseppe says he made funds available for the payments to be made, and that No 35 was always his.

2. [76]

   Giuseppe says that the $280,000 which contributed to the purchase of No 35 in 2006 reflected the fact that it was beneficially his. Raffaella says that the document he signed at the time was true, that it was a gift, reflecting his eldest daughter’s marriage and unpaid wages he owed her.

3. [77]

   The starting point is to examine the financial records – which are both voluminous and far from complete – which the parties have chosen to place into evidence. It is quite clear that payments for the mortgage came from Raffaella’s 920 account. To that extent, Raffaella’s claim is correct. But what was the source of the funds in the 920 account?

4. [78]

   Hundreds of pages of details of family members’ bank accounts were tendered. This occurred in two forms. There were 90 pages in small typeface which appeared to be a printout of internal CBA records (for each transaction had an 11 digit “CBA receipt number”); each page of the spreadsheet has around 80 rows, so that there are in excess of 7,000 transactions in the period from 1 December 2010 to 31 December 2019. Pages 792-842 are transactions in Raffaella’s account ended 920, which is the account from which many mortgage repayments were made. Pages 844-881 are transactions in Claudia’s account ended 674. These are said to be, and have the appearance of being, documents produced by the Commonwealth Bank in answer to a subpoena, based on the bank’s internal records.

5. [79]

   There were also many pages in more familiar form of monthly (or sometimes six-monthly) bank statements. Most but not all of Raffaella’s 920 account were tendered, from February 2008 until February 2025. Statement 1 is missing. It should not be thought that the pages were placed in the Court Book in anything like chronological order, although it was not a large task to place them into such order so that sense could made of them. It may be that some other judicial officer has to repeat the task, for whose benefit I record that pages 1 and 3 but not page 2 of each of Statements 4, 7, 8 and 9, and pages 1, 3 and 5 (but not 2 or 4) of Statement 11 were tendered. The whole of statements 37-40 (for the period 14 May 2017 to 14 May 2018) were missing, although the transactions during that period may be found in the CBA printout.

6. [80]

   Raffaella refinanced with Macquarie Bank in March 2019, although mortgage repayments continued to be made from the 920 account. The loan drawdown amount on 20 March 2019 was $760,000 (CB 710), secured by a registered mortgage (CB 1032). Monthly repayments started at $3,425.05, reducing to $3,085.64 from 20 May 2021, and rising sharply in 2022, when interest rates increased from 3.49% to 3.99% to 4.49% to 4.74% to 4.99% to 5.24% in the second half of that year (see CB 731) finishing the year at $4,210.44 per month. There were further rate rises in March and May 2023 leading to monthly repayments of $4,648.23, and further rises later that year. I shall return to the repayments, some of which bear directly upon the central issue in this trial.

7. [81]

   Also tendered were 11 pages of Statement 9 of Raffaella’s CBA account ending 782, for the period 31 May – 30 November 2022 (CB 985-995). All but one entry (a payment of $180 on 5 October described as “babysitting”) was redacted, as were the running account balances. It is clear however (because there are more than 200 transactions) that this was an active account. Around 70 of the transactions are credits, and the masking of many is similar (one full line and a small portion of the second line) which is consistent with a recurring payment such as a salary. Why this account was almost entirely redacted is unclear to me. Raffaella also tendered some earlier bank statements (a Westpac account from July 2006 to January 2007), but aside from showing her salary, little turns on them.

8. [82]

   A page was tendered which seemingly contains CBA bank account numbers, the account type and the denomination for family members (CB 843). Omitting duplications, there are 22 in all. Two were held by Fabiola (one in her own name, one a joint account with Christopher), one by Claudia (the 674 account), one a joint account of Luca and Claudia. Those four account were “Standard Branch” accounts. The rest were accounts in the name of Raffaella, either by herself or with Mark. Six were “NetBank” accounts. There were the following “Standard Branch” accounts: in Raffaella’s sole name: 670, 694, 920, 963, 619, 627 and 450, as well as accounts in Raffaella’s and Mark’s names: 971, 860, 879, 921 and 269. There were also NetBank accounts in Raffaella’s sole name (327, 782, 320) and in the couple’s names (689, 020, 550). One of the CBA statements (CB 1115) contains this text:

9. [83]

   One thing is pellucidly clear. Although the parties tendered hundreds of pages and thousands of transactions, most of Raffaella’s bank accounts with CBA were not tendered, including those showing such income as she was paid or the accounts from which transfers into the 920 account were made.

10. [84]

    For the defendants, CB 554-567 were pages of Giuseppe’s Westpac bank account 751 from statements 5 to 15 covering small parts of the period December 2009 to October 2012. The reproduction was highly selective – precisely two of the 7 or more pages of each of Statement 5, 6, 7 and 8 were reproduced, nothing from Statements 9 and 10, two pages from Statement 11, nothing from Statements 12 or 13 and two pages from Statements 14 and 15. Raffaella rightly observed that those pages, which did show entries corresponding to the payment of occasional property expenses, fell far short of establishing Giuseppe’s claim that he paid all such expenses.

11. [85]

    Scattered through volumes 2 and 3 of the courtbook (between CB 614 and 1106) were a complete set of statements 68-81 of Claudia’s 674 CBA account, covering the period from 1 May 2018 until 30 April 2025, occupying somewhat more than 100 pages. These overlap slightly with the CBA printout for the same account from 13 December 2010 to 31 December 2019. Were there any doubt about it, the transactions on the 29 pages of statements 68-71 correspond precisely with the last 7 pages of the CBA printout for the 674 account.

12. [86]

    Thus there is a fairly comprehensive documentary account of the entirety of Claudia’s account with CBA from 2010 to date, and highly selective extracts made available by Giuseppe for the same period. It should be noted that it is not known to me what steps were taken by way of discovery, notice to produce or subpoena to banks by either side. I proceed on the basis that the parties have chosen to litigate their dispute on the basis of the limited information made available in the court book and the cross-examination bundle (Exhibit 1).

13. [87]

    Finally, tendered through the defendants’ cross-examination were statements 29-34 of Fabiola’s 694 Westpac account, for the period from 29 November 2005 – January 2007. These show a deposit of $35,000 on 21 December 2005, a series of large withdrawals all at Blacktown in 2006 ($3,400 in January; $4,000, $1,000, $1,000, $3,000 in February; $3,000 in March, and $1,000, $8,000, $1,000 on the 1, 2 and 4th of May which with other more general expenses reduced the balance to less than $1,000. On 11 August 2006, there is a further deposit of $35,000, which was withdrawn in full on 23 August. On 19 September 2006, there is a deposit of $20,334.08, stated to be €12,250, from “Grillo Anna”, whom Fabiola accepted was her grandmother who still lived in Italy (T57.47). Some $13,708 was withdrawn the following week, and the rest over the next few weeks. Then, on 18 October 2006, there is a deposit of $324,218.46, also from Anna Grillo, representing €197,000. $10,000 was withdrawn by an online transaction described “BPAY TO WESTPAC CARDS” on 18 October. There follow withdrawals of $14,510 on 27 October 2006, $12,065 on 2 November 2006 and finally $242,712.11 on 9 November 2006 leaving some $32,000 in the account.

14. [88]

    There are four main purposes for reviewing the banking records.

    1. (1)

       First, an analysis of the banking records for 2008-2010 will explain how Raffaella became liable for the Queensland property, how she serviced that loan and why it was discharged at settlement on 1 December 2010.

    2. (2)

       Secondly, an analysis of the records from 2010 to date will show that a large contributor of funds to the 320 account (so that Raffaella’s debt to CBA (later Macquarie Bank) could be repaid) were cash deposits which had been withdrawn from Claudia’s account into which fortnightly payments of social security were made. To a much lesser extent, there are also deposits which appear to be associated with Fabiola and Serena.

    3. (3)

       Thirdly, by aligning the banking records with emails, text messages and social media communications between Raffaella and Giuseppe, Raffaella’s proposition that Giuseppe never provided funds to make any mortgage payments can be tested and, ultimately, refuted.

    4. (4)

       Fourthly, an analysis is required in order to resolve the issue identified by the parties whether Raffaella or Giuseppe paid amounts of $14,900 for solar panels and $8,000 for timber flooring.

15. [89]

    In May 2007, Raffaella had been employed by Commonwealth Bank of Australia (CBA) for just over a year, according to her loan application (CB 194). Her annual income was recorded as $39,584. She sought to borrow $140,837 to purchase land at Hay Point in Queensland. The application said the price was $180,000, and that she would also be repaying $9,000 in existing personal loans (with Esanda). Part of the consideration – some $40,000 – was described as “Gift”. The application was assessed on the basis that it would be a 30 year mortgage, at an interest rate of 7.34%, with repayments of $1,190 per month.

16. [90]

    As will be seen below, the transaction proceeded. The best evidence of the conveyance is found in business records annexed to letters in an exchange between solicitors acting for the parties in 2023, including a settlement statement dated 11 July 2007, which included payments of $94,542.23 to Adelaide Bank and $29,509.76 to G & C Faraone. The solicitors denied that Giuseppe and Claudia paid for the transfer, or for any of the costs to date. Raffaella annexed a capital gains worksheet prepared by her accountant which records the property having been bought for $130,000, sold for $170,000, but having incurred some $120,000 in expenses between 2007 and 2023 (mostly interest of $82,657) with the result that she claimed a capital loss of $80,161 (CB 1108) which was lodged on her tax return (CB 1107).

17. [91]

    The Queensland land is not part of the issues in this litigation. However, it remains relevant in two ways. First, Giuseppe’s case is that he helped his children acquire land, and Raffaella accepts that that occurred when she acquired the Queensland land. Secondly, and more importantly, the money borrowed by Raffaella to acquire the Queensland land was an important aspect of the settlement on 1 December 2010 of the conveyance to her of No 35.

18. [92]

    Raffaella’s banking records for her 920 account for 2007 were not tendered, and those for 2008 and 2009 are incomplete. However there are regular debits of $1,237 described as “COMMONWEALTH BANK LN REPAY 418958507” on 20 February, 20 March and 21 April. Those debits are preceded by amounts which are just sufficient to leave the account in surplus. See for example the first page of Statement 3:

19. [93]

    The next transaction (not reproduced in the portion extracted above) is the repayment of $1,237 on 21 April to the 507 account.

20. [94]

    It is clear that someone was monitoring the account so as to ensure that $1,237 (and not much more) was available on the 20th or 21st of each month. The labels given to some of the deposits are suggestive: “car march and dad” and “PAPA HOME LOAN”.

21. [95]

    By 20 May 2008, the repayments had risen to $1,329 per month. Then by November 2008 they had reduced to $1,147 and then to $1,037 in December, January (I presume – the page is missing), February and then $932 in March. Then something strange occurs. Page 1 of Statement 7 discloses a cash deposit of $15,000 on 16 April 2009 (CB 209). The closing balance on 20 April 2009 exceeds $15,000. Page 2 of Statement 7 is missing, and Statement 8 commences on 1 May 2009 with an opening balance of $3,072.34. Hence there was a withdrawal of some $12,000 between 21 and 30 April 2009. Because the computer generated printout only starts in 2010, there is nothing in evidence that sheds light on this.

22. [96]

    Commencing on 18 May 2009, there are two streams of monthly repayments: $932 to the 507 loan account, and a new recurring debit of $279 to a new account ending in 008. The 008 debits cease on 18 November 2009. On that date, it seems likely that Raffaella refinanced some credit card debt and entered into a new loan facility.

23. [97]

    It will be seen that funds of $12,273.11 were deposited on 18 November 2009, with a description which ends in 803. The following day, it appears that $6,227.48 of Bankwest credit cards were repaid. Thereafter, there are weekly debits of $180 credited to the 803 account, a one-off debit of $932, and later regular debits of $240 credited to the 507 account. The pattern of modest weekly payments of $180 to the 803 account and around $260 or $270 or $280 to the 507 account continues until November 2010.

24. [98]

    The 920 account for the period from 4 November to 3 December 2010 is revealing:

25. [99]

    The repayments to both the 803 and the 507 accounts thereafter stop. On 1 December 2010 there is a deposit of “SURPLUS FUNDS Admin” of $14,032.45, and on 3 December is the first loan repayment of $1,113.75 to a new account number ending in 603.

26. [100]

    Pausing there, that very closely resembles the banking records earlier mentioned, to the effect that at settlement, Raffaella’s existing home loan (for the Queensland land) and personal loan would be repaid, and there would be some $14,333 deposited into Raffaella’s account.

27. [101]

    It is convenient to start with calendar year 2011, the first calendar year after Raffaella became the registered proprietor of No 35. Her 920 account shows the following.

28. [102]

    There are weekly repayments, in amounts of $1,120 (from 7 January until 23 September) and $1,113.75 (from 30 September until 30 December 2011). These are shown both on the spreadsheet, and on Statements 13 and 14 for that account (CB 341-357). The latter show the following:

    1. (1)

       First, there are no regular salary credits into that account.

    2. (2)

       Secondly, the balance prior to 28 April 2011 never exceeds $3,100, despite the fact that more than a thousand dollars is being debited each week. That comes about in large measure because there are in most weeks cash deposits in the order of $1,000.

    3. (3)

       Raffaella highlighted another source of funds to that account, namely, payments expressed to have been made by bank transfer by Fabiola. There are precisely 12 such deposits, all styled “Transfer from FABIOLA BONOMO NetBank”. They are as follows: $126 (3 Feb), $1,000 (10 Feb), $500 (18 Feb), $300 (26 Feb), $100 (3 Mar), $1,400 (11 Mar), $300 (27 Mar), $420 (21 Apr), $430 (23 Jun), $430 (27 Jul), $430 (25 Aug), $430 (21 Sep), $430 (27 Oct), $430 (21 Dec). In addition, although not highlighted in her table, is a credit of $811 on 30 November 2011 described as “Transfer from FABIOLA BONOMO NetBank tax money”. Those payments which exceed $6,000 contribute only just over one tenth of the mortgage repayments.

    4. (4)

       There are three relatively large transactions in this period: a credit of $20,000 on 28 April 2011 described as “746473218 Admin”, a debit of $14,400 on 30 June 2011 described as “Transfer to other Bank NetBank solar system pay”, and a deposit of $8,800.42 on 3 November 2011 described as “Chq Dep Branch Wpnt Blacktown”. Otherwise every transaction is no more than $1,500. Interestingly, the largest credit of $20,000 on 28 April 2011 bears the same number 746473218 as every mortgage repayment, which is consistent with it being further drawn down (or there being a “redraw”), but it is impossible to express any concluded view. The $14,400 debit relates to the solar panels and I shall return to it. The third deposit is mysterious.

    5. (5)

       There are two further recurring types of deposits into the account over this period: cash deposits and transfers from the 694 account. The latter have descriptions which are (or are very similar to) “Transfer from xx2694 NetBank home loan”. These were made on 14 Jan, 26 Jan, 11 Feb, 25 Feb, 11 Mar, 24 Mar, 7 Apr, 21 Apr, 5 May, 20 May, 4 Jun and 17 Jun. Those fortnightly deposits then stop, and there is a deposit of $1,000 on 30 June with a slightly different description “Transfer from xx2694 NetBank home loan repay”. There follow 18 Jul $950 “Transfer from xx2694 NetBank transfer”, 28 Jul $1,100 “Transfer from xx 2694 NetBank home loan”, 12 Aug $1,000, 26 Aug $1,000, 8 Sep $1,000, two on 22 September to which I shall return, 20 Oct $1,000, 3 Nov $1,000, 16 Nov $1,000, 2 Dec $1,000, 16 Dec $1,000.

    6. (6)

       On 22 September there are two unusual deposits:

    7. (7)

       It will be seen that both purport to be transfers from the xx2694 account in the amounts of $1,000, but one is described as “from raff”. It is clear that the person or persons who made each transfer entered the descriptions “home loan” and “loan from raff”; evidently those descriptions were not created automatically by the bank’s computer systems, but individually by the person making the transfer. It would be unusual for the named account owner to give such a description to a deposit into her own account. It is however consistent with Giuseppe’s account that it was he rather than Raffaella who made funds available to that 920 account.

    8. (8)

       There are also deposits described invariably as “Cash Dep Branch Wpnt Blacktown” or “Cash Dep Branch Rouse Hill”, and in one case (13 Jan) at Tweed Mall. These occurred as follows: 13 Jan $700, 28 Jan $700, 4 Feb $300, 10 Feb $700, 24 Feb $700, 10 Mar $1,000, $17 Mar $50, 24 Mar $700, 24 Mar $300, 28 Mar $100, 30 Mar $700, 7 Apr $600, 21 Apr $700, 21 Apr $300, 27 Apr $200, 28 Apr $360, 5 May $700, 19 May $700, 19 May $400, 2 Jun $1,000, 16 Jun $700, 16 Jun $300, 30 Jun $700, 30 Jun $300, 8 Jul $900, 13 Jul $300, 14 Jul $700, 14 Jul $300, 22 Jul $300, 28 Jul $700, 28 Jul $300, 4 Aug $1,500, 11 Aug 700, 11 Aug $300, 19 Aug $320, 25 Aug $300, 25 Aug $700, 2 Sep $380, 8 Sep $700, 8 Sep $300, 13 Sep $300, 16 Sep $1,000, 6 Oct $700, 6 Oct $300, 20 Oct $700, 20 Oct $250, 28 Oct $150, 3 Nov $700, 3 Nov $300, 17 Nov $300, 17 Nov $700, 1 Dec $700, 1 Dec $300, 22 Dec $300, 22 Dec $700.

    9. (9)

       There is a very close correlation between withdrawals from Claudia’s account shortly after social security payments are made, and the cash deposits in Raffaella’s account. Claudia’s account shows the following withdrawals for 2011 all from ATMs mostly in Woodcroft, Blacktown and Rouse Hill (CB 844-847): 13 Jan $1,000, 28 Jan $1,100, 10 Feb $1,000, 24 Feb $1,100, 10 Mar $1,000, 7 Apr $1,100, 21 Apr $1,170, 5 May $1,160, 19 May $1,200, 2 Jun $1,190, 16 Jun $1,170, 30 Jun $1,070, 13 Jul $900, 14 Jul $1,000, 28 Jul $1,000, 4 Aug $1,700, 11 Aug $1,000, 25 Aug $1,100, 8 Sep $1,100, 22 Sep $1,100, 6 Oct $1,100, 20 Oct $1,020, 3 Nov $1,000, 17 Nov $1,050, 1 Dec $1,000, 15 Dec $1,100, 29 Dec $1,000.

29. [103]

    The pattern linking the social security payments to Claudia and the deposits to Raffaella’s 920 account (where the money was available to meet automatic mortgage repayments) is more easily observed by the following table which records every cash withdrawal from Claudia’s account on the day on which social security was paid into her account:

30. [104]

    Without fail, on the day that fortnightly social security payments were received by Claudia, there was a withdrawal from her account in cash, and a deposit of an amount at least half (sometimes considerably more than half), and on one occasion (10 March) the entirety of the withdrawal, into the 920 account. It is plain that the deposits reflect the payments of social security to Claudia (they are described as “AUS GOV FAMILIES” and “Pension” in her bank statements). It is unclear who is making the cash withdrawals and deposits. Claudia gave evidence that Raffaella had given her a CBA keycard, and that “Giuseppe and I would put all our money into that account and we would then use that card for all of our expenses” (CB 61).

31. [105]

    Very approximately, somewhat less than half of the funds used to repay the mortgage debt over this period are sourced from deposits of cash made on the same day that Claudia received social security payments.

32. [106]

    But the cash deposits made on the same day as the withdrawals of Claudia’s social security payments do not exhaust the cash deposits; there are other cash deposits, and who made those is not revealed by the documents. In addition, there are regular $1,000 deposits from the 2694 account described as “home loan”.

33. [107]

    The emails exchanged between Raffaella and Giuseppe between 6-12 January 2012, on which Raffaella was cross-examined extensively, may be connected with the transactions in the 920 account at the same time. As was observed during the hearing, the emails of January 2012 bear upon the character of the transactions, and are relatively contemporaneous to the acquisition of No 35.

34. [108]

    Some of the emails were in Italian, and not all were translated in the Court book. The parties were invited to supply agreed translations, or I directed the parties to supply their preferred versions. That occurred, with all save one of the translations being agreed. The six page translations of emails at pp 539-547 of Exhibit A, supplied to my Associate by email dated 8 August 2025, will be incorporated within Exhibit A.

35. [109]

    It will be recalled that Giuseppe said that Raffaella moved out of No 35 in about January 2012.

36. [110]

    On 6 January 2012, Giuseppe sent a long email to Raffaella in Italian. Mostly it was his extremely pejorative views about Mark and her choice of him as a boyfriend. Raffaella’s translation included the following:

37. [111]

    Raffaella’s response on 9 January (CB 533) was short, and included:

38. [112]

    Later on 9 January, Giuseppe wrote to Raffaella (in Italian) under the subject “Che delusione!!!”:

39. [113]

    At 8.45am on 10 January, Raffaella replied (in English):

40. [114]

    At 8.38pm on 10 January, Giuseppe replied. I reproduce his email and the competing translations:

41. [115]

    On Wednesday 11 January, Raffaella responded:

42. [116]

    Giuseppe responded later that evening (in Italian); the agreed translation is:

43. [117]

    Finally, Raffaella replied the following morning (in English):

44. [118]

    Raffaella was cross-examined extensively on this chain of emails, starting with that of 6 January. She recalled receiving it, but rejected the proposition that Giuseppe was annoyed because he no longer wanted to keep the property registered in Raffaella’s name. When asked about what she understood her father to be annoyed about, Raffaella indicated that the majority of the email was about his animosity towards Mark. Raffaella rejected counsel’s suggestion that Giuseppe’s email “correctly reflected the arrangement [she] had with [her] father about the property at the time”. In response to why she failed to respond to the purportedly misrepresented state of affairs, Raffaella answered:

45. [119]

    Raffaella was then taken to her response:

46. [120]

    Raffaella was then taken to her further response dated 10 January 2012 and addressed to Giuseppe (at this stage, Giuseppe’s email to her was untranslated). Counsel read the words, “[i]n addition, I have stopped putting the money in the home loan, so ensure you keep on top of your repayments”. Raffaella rejected several propositions, including that she said those words because Giuseppe was actually making repayments towards the home loan (and instead posited that the loan repayments came from her account), and that there was an arrangement whereby Giuseppe would provide funds so that Raffaella could pay the mortgage. Counsel also asked whether the payments recorded as “rent” from Giuseppe to Raffaella were really meant to be payments towards the mortgage, to which Raffaella replied that she did not recall her father paying her rent.

47. [121]

    Counsel for the respondent took Raffaella to the email dated 11 January 2012 addressed to Giuseppe. The words “[y]our repayments are $4,455 and are due the 1st of every month” was put to Raffaella as referring to “repayments made by [Giuseppe] towards the mortgage or loan”. Raffaella’s response was, in effect, to convey that if Giuseppe “wanted to continue to let [her] mother live there, he would have to make the repayments” or otherwise she would let the loan default (which she never did). Several propositions were then put to Raffaella, as follows:

48. [122]

    I interpolate that I shall return to this exchange when dealing with the solar panels. The cross-examination continued:

49. [123]

    Raffaella was then taken to her email dated 12 January 2012 which stated that “[e]ven though the interest rates come down the payment still remains the same as it is based on the balance of the initial loan”. Raffaella rejected the formulation that “the only plausible explanation as to why” she would be “explaining that to him was because [she] had an arrangement with him whereby he was responsible for paying the mortgage, not rent” and instead said that it was “all a continuation from the initial email” and was her “explaining to him how the home loan works, and if he wanted to continue to allow [her] mother to live in there, he would have to pay and take over the repayments”. Raffaella accepted that she tried to mislead Giuseppe into thinking that she would cease making mortgage repayments, notwithstanding that she had no intention of ceasing payments.

50. [124]

    I have reproduced below parts of the 920 bank statements for January 2012:

51. [125]

    It will be seen that the running balance between 6 and 11 January (see the rightmost column of the third row above) was $2,934.43, exactly as appears on Raffaella’s email of 11 January. It will also be seen that the weekly repayments were $1,113.75, which when multiplied by 4 yields the $4,455 repayment amount in her email.

52. [126]

    Most importantly, it will be seen that a fortnight later, on 24 January, the amount of $4,455 is deposited from an account xx9603 06 2384.

53. [127]

    I find that that amount was deposited by Giuseppe. In his affidavit, he said “I followed the directions of Raffaella in terms of how and when I made payments to [No 35] expenses”, adding that “[s]uch payments included regular deposits to her personal accounts”. The amount corresponds precisely to the amount Raffaella directed him to pay for February, and occurred a week before the end of January. The account number is not one of the 21 bank accounts in Raffaella’s name which according to her existed over the period.

54. [128]

    I do not accept Raffaella’s evidence that Giuseppe paid none of the mortgage payments.

55. [129]

    The statements reproduced above also show regular debits of $100 by way of loan repayment to an account ending in 218. I shall return to this when dealing with the solar panels.

56. [130]

    Raffaella was also cross-examined about an exchange of messages with her father in April 2021. The messages are as follows:

57. [131]

    It is not clear when the picture of the keycard is sent by Raffaella to her father. It is clear that on 6 and 20 April 2021 there is an exchange of messages between the two during which she provides a password for a document, and then (presumably after Giuseppe was able to open the document) he asks questions and makes complaints about there not being enough money in the account for the $3,085 to be taken out.

58. [132]

    There was once again relatively extensive cross-examination of Raffaella on those exchanges.

59. [133]

    I do not accept Raffaella’s denials that Giuseppe did not make payments towards the loan and did not make debits and credits to the 920 account. The transactions being discussed may be seen on Raffaella’s statement from Macquarie Bank for this period:

60. [134]

    It will be seen that the interest rate decreased on 20 April from 3.30% to 2.44%, with the effect of reducing monthly repayments from $3,425.05 to $3,085.64. However, on 20 April 2021, a repayment was attempted to be made, from an account ending in 920, in the higher amount and was dishonoured, with the result that a fee of $5 was charged.

61. [135]

    The $3,085 mentioned by Raffaella to her father is the revised monthly repayment and the $5 fee was also evident.

62. [136]

    The natural way of reading Giuseppe’s words “[w]hy the loan payment was the same as the previous month? You said that supposed to be $3,085 and I left more than that in the account” is that Giuseppe had access to the 920 account from which mortgage payments were made, and had taken steps to leave more than $3,085 in the account.

63. [137]

    But there is more. Raffaella’s 920 bank statement corroborates the above, and reveals the transactions preceding the dishonoured payment on 20 April:

64. [138]

    The attempted debit of $3,425.05 on 20 April is shown as unauthorised. That is because there was only $3,350.97 in the account, resulting in a deficit of $74.06; evidently transfers which left the account in debit were not authorised, hence the transaction was reversed and a fee charged. On the following day, there is a deposit of $300, which permitted the debit of $3425.05 to proceed on 23 April.

65. [139]

    Significantly for present purposes, there was a cash deposit of $900 at Stanhope Gardens on 18 April, and a transfer the following day of $400 to Claudia’s 674 bank account (see CB 906). The natural way of reading Giuseppe’s words “I left more than that in the account” is that Giuseppe caused either or both of the $900 and the $400 transactions to take place.

66. [140]

    Claudia’s account for 19-22 April discloses the following:

67. [141]

    I find that the transfer of $400 on 19 April 2021 from the 920 account was made by Giuseppe. He said the following day that he left enough in the 920 account for what he understood was a $3,085 repayment to be made; the natural meaning is that he caused a debit to the 920 account, and as it happens, it was the $400 withdrawal which caused the automatic mortgage payment debit to fail. Further, the description given to the $400 transfer, as is apparent from Claudia’s statement, is “Lended”. In Italian, presto is a weak verb, and it would be natural for Giuseppe to think that “lended” is the past participle of the English verb to lend; there is no especially obvious reason for a person who learns English as a second language to know that the past participles of “lend”, “bend”, “send” and “spend” are strong but those of “fend”, “mend” and “tend” are weak. On the other hand, there is nothing to suggest that Raffaella who came to Australia aged around 11 and who is fluent in English would make any such mistake. Indeed, in re-examination, she said “[o]ver the years, I also lent some other money, 10,000 to 15,000 in different amounts”.

68. [142]

    First, there are more than a hundred account transfers with the description “Lended” in the statements in evidence. For the reasons given above, this is suggestive of their having been deposited by Giuseppe.

69. [143]

    Secondly, on 31 January 2013 (CB323) there is a deposit to the 920 account of $1,000 described as “Transfer from xx4619 NetBank transfer raffy”. The 4619 account is one of the numerous accounts in the name of Raffaella of which no details are in evidence. It seems likely that Raffaella was the person who transferred these funds and who chose to identify the transaction with the words “transfer raffy”. This cuts both ways. On the one hand, it points powerfully to the proposition that Raffaella was personally responsible for transferring that $1,000 into the 920 account. However, the reason that “transfer raffy” cuts both ways is that a possible reason for Raffaella to label that deposit in that way was that she was aware that many of the deposits into the account were not made by her. It is difficult to think of another reason. That said, it is also necessary to bear in mind that she was not cross-examined about this.

70. [144]

    The 31 January 2013 deposit labelled “transfer raffy” was not an isolated example. There are many other electronic transfers into the 920 account similar to this, made from Raffaella’s 4627 and 4619 accounts. See for example 23 May 2013 $300 “Transfer from xx4619 NetBank raffy”, 31 May 2013 $300 “Transfer from xx4627 NetBank raffy” and on the same day a further $500 “Transfer from xx4619 NetBank Raffy”, 13 June 2013 $300 “Transfer from xx4627 NetBank raffy”, 28 June 2013 $300 “Transfer from xx4627 NetBank Raffy”, 1 July 2013 $790 “Transfer from xx4619 Kaching Raffy home loan” (see CB 308 and 307) and 9 August of $300 “Transfer from xx4627 NetBank Raffy”.

71. [145]

    On the same pages of statement 20, there are also cash deposits from the Blacktown branch of $2,320 on 16 May, $650 on 30 May, cash deposits at Rouse Hill on 21 June of $700, at Olympic Park on 14 June of $320, of $700 and $300 at Rouse Hill on 28 June, of $1000 at Blacktown on 15 July, and of $700 and $800 at Blacktown on 25 July.

72. [146]

    Finally there are three transactions on 3 August, all involving $14,613. One is a transfer from xx4619 , which is then reversed by the second, and the third is “Transfer from xx4627 NetBank Transfer taxes”. It is plausible to think that this represents a tax refund reflecting the excess of interest payments and other property costs over rent receipts. To be clear, the 4619 and 4627 accounts were in Raffaella’s name (CB 843), no information about either account was tendered, nor did Raffaella tender any evidence concerning her taxation affairs, save for the emails with her accountant mentioned shortly below, and the single page representing a compromise of her tax liability for the 2012 and 2013 financial years also mentioned above, and her testimony that the tax debt was some $60,000, not the $130,000 attributed to her.

73. [147]

    By way of further example, statement 20, which covers the period from 14 May to 13 August 2013, shows mortgage repayments of $3,776 on 3 June and $3,677 on 1 July and 1 August. There are the following classes of deposits:

    1. (1)

       NetBank deposits with descriptions including Fabiola’s name of $430 on 28 May, 26 June and 24 July $430.

    2. (2)

       NetBank deposits which include Raffaella’s name from the 4619 or 4627 account of $300 on 23 May, $300 and $500 on 31 May, 13 June, 28 June, 12 July, 1 August, 2 August and 9 August, and $790 on 1 July and $370 on 2 August.

    3. (3)

       Deposits described as “Cash Dep Branch Wpnt Blacktown” of $2,320 on 16 May, $650 on 30 May, $320 on 14 June (Olympic Park), $700 on 21 June (Rouse Hill), $300 and $700 on 28 June (Rouse Hill), $1,000 on 15 July, and $700 and $800 on 25 July.

74. [148]

    The CBA schedule shows social security payments into Claudia’s account on 16 and 30 May, 13 June, 19 June, 27 June, 4 July, 11 July and 25 July. The same correlation between social security payments and deposits into the 320 account may be observed.

The tax treatment of No 35 by Raffaella

1. [149]

   Raffaella accepted that she had claimed too much tax, and had incurred a debt which she said was $60,000; as noted above, she considered that her accountant had been negligent and had negatively geared her property without telling her, and she said that she obtained compensation from the accountant. It is unnecessary to express any concluded view about how the tax issue was ultimately resolved, which is just as well because the limited documents made available would prevent me from doing so.

2. [150]

   The documents in 2011 were deployed by Giuseppe to support his contention that Raffaella held No 35 as his trustee.

3. [151]

   An email from Ms Denise Eltenn to Raffaella dated 13 October 2011 was forwarded to her father the following day. The email attached a small spreadsheet recording amounts of tax paid and to be paid by Christopher and Fabiola. The email stated:

4. [152]

   The spreadsheet is headed “Difference in Tax amounts after amendments of returns”. It contains columns headed “Lodged already” and “New Amount” for Christopher for the years 2008, 2009, 2010 and 2011, and Fabiola for 2010 and 2011. In each case the “New Amount” is larger than the “Lodged already” amount. The “Lodged already” amounts total $29,924 and the “New Amount” to $41,492, and the difference appears as the sole entry in a column headed “Diff in refund”. There is also a column headed “amount with Rental” which is in 5 of the 6 rows identical with the “New Amount”, and finally there is a column “Amt due w/out rental”.

5. [153]

   That page of the table concludes “Total due by Christopher and Fabioni” as $9,237.

6. [154]

   Another page of the table is as follows:

7. [155]

   Raffaella was not cross-examined about those emails. She was cross-examined about an earlier email, of 5 October 2011, from Raffaella to Ms Eltenn, which once again she forwarded to her father (with a statement “FYI”). Ms Eltenn’s email stated:

8. [156]

   The cross-examination of Raffaella on this document concluded:

9. [157]

   The explanation from Raffaella is unpersuasive. What was the agreement whereby Giuseppe was entitled to some money from Raffaella’s tax return if it were not attributable to the fact that she was claiming a tax benefit in respect of payments made by her on debt to service a loan to acquire a property that was beneficially his? The contemporaneous document identifies amounts for each financial year when Christopher was an owner or co-owner of No 35 (2008, 2009, 2010, 2011), each financial year when Fabiola was a co-owner (2010 and 2011), and in each of those years there is an entry in a column headed “New amt due by ATO to dad” and a column headed “Diff payable to Raffy’s dad”. Those amounts total $6,683. Further, Raffaella forwarded the spreadsheet and the email (including the advice “if your dad, is receiving the extra, then he should be paying for the depreciation reports and the tax fees for the amendments for and including 2011”) to Giuseppe.

10. [158]

    It is difficult to resist the conclusion that Raffaella’s account was filing amended returns which sought to claim deductions for depreciation and interest for No 35, which gave rise to an expected tax return, to at least part of which Raffaella treated Giuseppe as entitled.

Raffaella’s admissions

1. [159]

   The foregoing concern particular transactions. Raffaella was also cross-examined about more general admissions she had made to the effect that Giuseppe was the beneficial owner of No 35.

2. [160]

   I have earlier addressed some aspects of the emails of January 2012, with a view to identifying whether a particular deposit into the 920 account was made by Raffaella or Giuseppe. But those emails were also relied on for the admissions they contained.

3. [161]

   The starting point is an email from Giuseppe dated 6 January 2012, and Raffaella’s response, which together with Raffaella’s cross-examination has been reproduced above. A further email in the chain, dated 11 January 2012, in which Raffaella said that “[y]our repayments are $4,455 and are due the 1st of every month”, and that by reason of an offset account “you are paying less interest in your home loan balance” have also been reproduced above.

4. [162]

   The email also referred to a tax refund:

5. [163]

   Raffaella was cross-examined about this as follows:

6. [164]

   The words “I will be taking my part” and “I paid an extra mortgage repayment for one fortnight” and “I take my half” are consistent only with an agreement between Raffaella and Giuseppe involving the mortgage repayments and their treatment for the purposes of tax.

7. [165]

   November 2019 – change in interest rates. An email forwarded by Raffaella to Giuseppe on 26 March 2019 of an NRMA insurance policy renewal (CB 693). Raffaella claimed that she forwarded this so that he could give it to her mother, in case she needed to make any claim as she was an authority. Raffaella further explained that this was so her mother had an electronic trail, and because they were both residing at the house, she would send it to him to pass on.

8. [166]

   Raffaella was then taken to the next page and specifically to the paragraph which commences “Guilt trip me all u want about your house”. Raffaella explained this passage in the following terms:

9. [167]

   Text messages. Raffaella was taken to a series of texts (CB 1023-4), in which Raffaella said to her father “If you are selling you need to start listing the property now” and her father responded, “I am paying the mortgage, and that is the only thing I can do at the moment. I told you witch [sic] was the best solution for both of us and you replied to me that that option is gone”. The transcript thereafter was as follows:

10. [168]

    Raffaella was then shown texts on 4 May 2023 indicating that she was going to have an agent sell the property due to the frustration with delay (CB 1028). She accepted this, and explained that it was at this point that she realised “he had been lying to [her] by telling [her] he had an approval and that it would be finalised in three weeks”. Her father responded stating “if you want to be that tough, try to send someone into my house, and I will sue you, because I have plenty of evidence that I did pay for my house”. In response to the proposition that she had paid rent previously, Raffaella replied:

11. [169]

    Raffaella then accepted that there were several payments of transfer from Giuseppe to her described as debt repayment, which totalled $66,000. She was later taken to paragraph 34 of her third affidavit, which stated “[w]e were never given any expectation that our father would help us in purchasing any assets”. She did accept that Giuseppe assisted her with purchasing the Queensland property because he sold it at a discounted rate – precisely, she stated, in response to whether that was assistance, “[i]t depends how you look at it, I guess so”. After being shown a home loan application in respect of the Queensland property stating that she was being assisted by her father, Raffaella still contended that her affidavit was correct because he was not expected to help them purchasing assets but “chose to do it”.

Demeanour

1. [170]

   Raffaella presented as a highly intelligent woman who had a mastery of most of the documents, especially those which arguably contained admissions by her that her father had owned, or had paid for, No 35. She spoke fluently and authoritatively.

2. [171]

   Giuseppe also presented as an intelligent man. His English was fluent but imperfect.

3. [172]

   Both father and daughter maintained absolute positions. I understood each to have denied that the other made mortgage payments. Raffaella denied that Giuseppe performed any construction work on No 35, or paid any of the expenses. Giuseppe said he paid all expenses.

4. [173]

   Some of Raffaella’s answers (and in some cases, her non-responsive answers) gave the appearance of having been rehearsed.

5. [174]

   For example:

6. [175]

   The last answer shows an awareness that documents established that Giuseppe paid rates on No 35 on some occasions, and a keenness to emphasise that that only happened a couple of times. None of that was directly responsive to the question.

7. [176]

   The document in question was a quarterly rates notice in October 2019 from the local council, addressed to her as registered proprietor of No 35, which she forwarded to her father on the same day, without including any message in the subject line or body of the email (aside from what was evidently from other documents in evidence, her standard electronic signature at the time, being “Regards”, her name, and mobile number and email address). It strains credulity that she had, in August 2025, an actual recollection of forwarding an email almost six years earlier. Instead, it is much more likely that, through having reminded herself of the documents involved in this litigation, she was conscious of Giuseppe’s claim, supported by relatively few documents, that he paid certain property expenses.

8. [177]

   Raffaella also gave the following evidence in reply:

9. [178]

   Counsel for Raffaella then clarified the position. But the fact of the matter was that she had not been taken to a September payment in cross-examination, and had not been asked about it in re-examination, but nonetheless was keen to present her view of a payment in September. (I shall return to these payments, which bear on submissions directed to whether Giuseppe paid for building work at No 35.)

10. [179]

    I do not hold that against her. It would be impossible for a thoughtful person to prepare for this case without thinking about why and how she responded to a long email from her father principally directed to vilifying her then boyfriend (now husband). And it is not uncommon for witnesses to fail to focus on the particular question asked and instead to answer the question they apprehended they are being asked. But the result was that Raffaella sometimes anticipated the cross-examiner. For example, when dealing with her response:

11. [180]

    That response goes much further than the question asked.

12. [181]

    There was a difficulty in some of her answers. For example:

13. [182]

    It is possible for a witness not to remember why she said something, but to be certain that it was not for a nominated reason, even if that reason appears likely on the face of the document. However, the response is also consistent with an awareness that she would deny any interest whatsoever by her father, and rely on the age of a document where no other explanation would avail her.

14. [183]

    Neither Raffaella nor Giuseppe was taken to some of the details of the payments summarised above, and in assessing their evidence, I bear in mind that for some of the specific transactions they did not have a chance to respond. I do not think that greatly matters. Had Raffaella been taken to the $4,455 which I have found was deposited by Giuseppe on 24 January 2012, she may very well have said (as she said to other questions which much less elaborately confronted her with admissions against interest) that she did not recall a particular payment made 13 years ago. It is also possible that she may have acknowledged that as an exception to the general rule that Giuseppe made no mortgage payments. Likewise, if Giuseppe had been confronted with a deposit into the 920 account which said “from Raffy”, he may have given similar responses.

15. [184]

    Claudia said that she was not especially numerate, and that her command of written English was imperfect. I was unimpressed with Mark as a witness. Christopher presented as a straightforward witness, although without doubting his sincerity it must surely be difficult to distinguish between payments made a couple of decades ago comprising (a) board when he was living with his fiancée’s family, (b) mortgage repayments when he was again living with his wife’s family in a house in his name where slightly more than half of the purchase price had been paid for by funds supplied by his father-in-law, and (c) mortgage payments on No 37. Fabiola’s evidence did not closely concern the contentious aspects of No 35, and was focussed more on whether she received wages when working at a café, and the nature of the $280,000 supplied by Giuseppe. For all of these witnesses, I place greater weight on the contemporaneous documents than their recollections, which are inevitably linked with self-interest, concerning events of many years ago. I have also borne steadily in mind that at least some of their testimonial evidence (the parts which are diametrically opposed) must be unreliable. Finally, I bear in mind that the letter signed by Giuseppe stating that the $280,000 was a gift was intended to be relied upon by third parties, and acceptance of his evidence entails that he was making a formal statement intending it to be relied upon which was not true.

16. [185]

    Serena’s evidence was in a different category from all others. Unlike Raffaella and Giuseppe, she focussed on the question she was asked and tended to answer it and it alone. She was unemotional, and seemingly sincere. Unlike all other witnesses, she did not adopt an extreme position. I am certain that she considered Raffaella’s conduct in this litigation to be completely contrary to what she regarded as a clear understanding of the position.

Raffaella’s submissions

1. [186]

   Raffaella had purported to charge “rent” from her parents, pursuant to written agreements. Potentially, that may give rise to a threshold bar upon the relief she seeks, because s 119 of the Residential Tenancies Act 2010 (NSW) provides that a landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement. However, the first residential tenancy agreement was entered into on 27 October 2010, originally just with Claudia, for 5 years at a rent of $3,400 per month. A second agreement was entered into in March 2019 for a period of 12 months, with Giuseppe and Claudia as tenants, and the weekly rent of $750, subsequently reduced. Raffaella relied on the dismissal of her application to NCAT in support of this Court being able to grant her possession. She submitted that because NCAT found it lacked jurisdiction as the former residential tenancy agreements had expired, s 119 did not stand in the way of proceedings in this Court for possession. Giuseppe and Claudia made no submission to the contrary. I conclude that Raffaella’s claim is not barred.

2. [187]

   Part of Raffaella’s written submissions in advance of trial were directed to a claim based on a resulting trust, but that claim was disavowed at the beginning of the trial, as were other aspects of the cross-summons.

3. [188]

   In relation to the claim that the land was held on trust for Giuseppe, Raffaella said that he would need to demonstrate that his contemporaneous declaration of gift was false and there was a different agreed position in 2006 from what the parties had chosen to record in writing. Moreover, bearing in mind that Raffaella became registered proprietor following a transfer from Christopher and Fabiola in 2010, it was said that “any previous right [Giuseppe] might conceivably have had in that land was extinguished, with the plaintiff then owning the entirety of the land both legally and beneficially”.

4. [189]

   She added that even if (which was hotly disputed) Giuseppe made contributions to No 35 in the form of doing work on the property, that would not lead to his ownership of the land in equity.

5. [190]

   In oral address, Raffaella referred to the mortgage repayments from the 920 account, the regular deposits of $700 representing rent from Claudia, the payments into that account from Raffaella’s 964 account, the limited payments towards the end of the period of $750 from Giuseppe, and the numerous cash deposits where the identity of the payer could not be known. It was said of those latter payments of rent of $750 by counsel for Giuseppe that:

6. [191]

   It was said that there was an intractable problem of resolving who had made the payments between 2006 and 2009 reflected in the handwritten deposit slips, as to which both Christopher and Giuseppe gave evidence that they each had paid them all. It was said that little turned on the fact that some invoices and rates payments were paid by Giuseppe, or that his email address was on them, especially if he was in residence at the time or was the point of contact.

7. [192]

   Counsel then turned to two specific items: the solar panels and the flooring. He identified the deposit of $500 and balance of $14,400 paid for the solar panels, both of which were withdrawn from the 920 account. He also identified the $8,000 for the flooring (invoice of 8 May 2018 – CB 605) and the withdrawal of that amount from the 920 account on 6 May 2018. Thus it was said that “but we know at least in relation to the solar panels and flooring, Giuseppe’s claims are quite clearly wrong on the accounts” (T 152).

8. [193]

   Counsel correctly pointed to the onus of proof: “it’s for my friend to show that Giuseppe’s evidence of payments is correct, which I submit he just can’t do, because what accounts are in evidence just don’t back Giuseppe up”.

9. [194]

   In relation to the claim based on a constructive trust, the following submission was made:

10. [195]

    Further, it was said that Giuseppe had sustained no detriment.

11. [196]

    Raffaella complained that the relief pursuant to s 66G was not available in any event, because neither at common law nor in equity were there co-owners. She maintained that Giuseppe’s signed letter identifying the $280,000 as a “Non Refundable Cash Gift” meant what it said, and that the balance of the purchase price of No 35 came from $35,000 and a loan in Christopher’s name.

12. [197]

    Raffaella purchased the land for the price disclosed to the CBA of $615,000. It was funded by a CBA loan in the amount of $670,315 (that being, as I understand it, an inference from the amount required on the settlement sheet). She relied on the fact, established by her banking records, that she has serviced the mortgage debt ever since.

Consideration

1. [198]

   To the extent that it is part of his case, Giuseppe bears the onus of establishing that he made (in a real and practical sense) all mortgage payments and all expenses such as rates and payments for building work. He has failed to do this. Plainly all of the mortgage repayments were derived from Raffaella’s 920 account, and at least some of those payments were themselves made possible by other deposits which appear on their face to have been from Raffaella. True it is that there is a basis for considering that some of the transfers from the 674 account may have been made by someone other than Raffaella (bearing in mind the two transfers on 22 September 2011 one of which was described as “loan from raff” and the other as “home loan”) but there is no reason to doubt that if that were so, there would be ample documents in his possession which would establish as much, which Giuseppe has not placed into evidence.

2. [199]

   On the other hand, I do not accept Raffaella’s claim that Giuseppe paid for nothing in the same real and practical sense. To the contrary, I find that the directly traceable proceeds of payments he made into the 920 account were spent on mortgage repayments and other expenses of No 35. I have referred above to the deposit of $4,455 made from an account ended 384 on 24 January 2012, which followed information supplied by Raffaella and which precisely corresponds to four weekly payments of $1,113.75. Similarly, it is clear that deposits in 2021 were made by Giuseppe. There is reason to believe that some of the other payments, including those described as “Lended”, may have been made by Giuseppe. Precisely how many were made by him is unclear. It will be convenient to return to this below when dealing with detriment and, especially, relief.

3. [200]

   I find that at the time No 35 was transferred first to Christopher, then to Christopher and Fabiola, and then to Raffaella, this occurred because Christopher and Fabiola in 2006 and 2009, and Raffaella in 2010, all agreed with Giuseppe and Claudia that No 35 was to be owned beneficially by Giuseppe. That is the testimonial evidence of Giuseppe, Claudia and Serena. My finding involves not accepting the evidence of Raffaella, and to a lesser extent Mark, Fabiola and Christopher on this issue. I do so for the following reasons.

4. [201]

   First, it is difficult otherwise to see why in May 2011 Raffaella was telling her accountant that Giuseppe was entitled to parts of her tax refund.

5. [202]

   Secondly, it is difficult otherwise to see why Raffaella repeatedly over the years kept her father informed as to the monthly repayments to service the mortgage (first with CBA, then with Macquarie Bank). It may be, as Raffaella contended in final submissions, that the emails in evidence are isolated examples. Nonetheless, why were they sent at all?

6. [203]

   Thirdly, there are also numerous admissions by Raffaella to that effect. It is difficult otherwise to see why Raffaella repeatedly referred to the house being Giuseppe’s, including:

   1. (1)

      “If you wish to sell the house then you need to take the appropriate measures to get this done. I will not be doing it for you” (9 January 2012);

   2. (2)

      “I have stopped putting the money in the home loan, so ensure you keep on top of your repayments” (10 January 2012);

   3. (3)

      “Your repayments are $4,455 and are due the 1st of every month … There is also money in the MISA account of $7,410 (at the moment by having the money in there you are paying less interest in your home loan balance)” (11 January 2012);

   4. (4)

      “Guilt trip me all u want about your house. U got yourself in this mess with your stubbornness and ego. U want to sell it, sell it” (18 June 2021);

   5. (5)

      “U own this house. I pay rent … Unless you will reimburse me that money once you sell your house … Not sure what planet you are on dad but come back down to earth” (22 August 2022).

7. [204]

   Raffaella was squarely confronted in cross-examination with the communication with the accountant, her emails to Giuseppe advising him of the monthly repayments, and the admissions in her emails and other messages. I am unpersuaded that her various explanations suffice to displace the ordinary conclusion to be drawn from all those documents. I bear in mind that Raffaella’s position was consistent with Giuseppe’s signed acknowledgement that the $280,000 was a gift, with which he was confronted in cross-examination. But his evidence that it was requested by the broker and was “just for the purchase of the property to serve the loan, nothing else” is not implausible, although it is far from creditable.

8. [205]

   The banking documents corroborate Giuseppe’s evidence that the $280,000 represented the proceeds of sale of real property in Italy. It makes no sense for that amount to be given with no strings attached to the fiancé of his oldest daughter, thereby sowing the seeds for complaints about unfair treatment of all five younger siblings. Giuseppe said, concerning the $280,000:

9. [206]

   That is inherently plausible. There is nothing in the evidence to suggest that Fabiola was the favoured child, who received a substantially disproportionate advantage over her younger siblings.

10. [207]

    Further, there is the fact that Raffaella also acquired No 35 at substantially less than full value. The fact that Christopher and Fabiola were prepared to transfer title to No 35 at a price reflecting the outstanding mortgage debt, as opposed to its value, is confirmatory of the fact that the $280,000 was not a gift.

11. [208]

    What were the circumstances in which Raffaella came to be the registered proprietor of No 35? Although some of the details are not completely clear, I am very comfortably satisfied that she acquired title in highly advantageous circumstances.

12. [209]

    The starting point is the settlement sheet tendered by Raffaella. According to that document, the conveyance proceeded on the basis that the consideration was $615,000 but $167,000 was an “equity gift” such that Christopher and Fabiola received only what was necessary to discharge the existing mortgage. I did not understand Raffaella to dispute that much.

13. [210]

    In addition, it is clear from the settlement sheet on which Raffaella relied, as well as the internal CBA banking records, that some $214,000 of the amount provided at settlement was being deployed to discharge Raffaella’s personal indebtedness, or else to provide her with some $14,000 in funds.

14. [211]

    That is to say, this is not a case where Raffaella has been shown to have contributed anything of her own assets (as opposed to funds borrowed by her) to acquire property. Nor is it a more usual case where Raffaella’s own funds, in the form of money borrowed from the bank secured by a mortgage over the property are deployed to acquire property. This is a case where Raffaella acquired title to the property, subject to a large personal obligation to repay the bank which obligation was secured by a registered mortgage over the property, but also Raffaella obtained the benefit of some $214,000 in borrowed funds because the purchase price was so much less than the value of the property and the amount the bank was prepared to lend.

15. [212]

    To reiterate, on the face of the settlement instructions, Raffaella (the purchaser) was receiving benefits of $35,000 plus $165,500 plus $14,333.34 from the proceeds of sale. That much is borne out by the banking records:

    1. (1)

       The internal banking documents referred to closing the 507 “H/L” and the 803 “P/L” which appear to correspond with the $165,000 home loan for Queensland and the $35,000 personal loan Raffaella took out. The regular repayments for the 507 and 803 loans cease after 1 December 2010, and the internal banking documents refer to a fee for the discharge of a Queensland mortgage.

    2. (2)

       An amount slightly exceeding $14,000 was paid into the 920 account on the day of settlement.

    3. (3)

       The weekly repayments of $1,113.75 reflect a new borrowing in Raffaella’s name of $670,315. The $670,315 accounts for the discounted purchase price of No 35, the repayment of Raffaella’s existing personal loan and existing loan for the Queensland land and for the deposit of some $14,000 into her account, as well as paying for stamp duty and discharging the existing indebtedness of Christopher and Fabiola.

16. [213]

    Drawing that together, upon settlement in December 2010 Raffaella obtained legal title to No 35. The purchase price, for the purposes of the bank’s calculations and stamp duty, was $615,000. Raffaella appears to have contributed nothing from her own funds. She borrowed $670,315, but that was used to repay existing loans (in the application form, stated to be $199,436.76), to pay stamp duty. It was necessary to discharge the mortgage registered to secure the existing indebtedness of Christopher. The contemporaneous documents, consistently with the evidence at trial, was that Raffaella agreed with Christopher and Fabiola to take on the property to discharge their debt. The settlement sheet refers to paying out the Commonwealth Bank of Australia in the amount of $431,356.66, which evidently reflects Christopher’s existing indebtedness. I note that indebtedness of some $431,000 plus the “equity gift” of $167,000 equals $618,000 which is very close to the sum of the stated price of $615,000 and various fees totalling $3,199 (principally, mortgage stamp duty of $2,684).

17. [214]

    The fact that the bank was prepared to lend $670,315 suggests that the value of No 35 was considerably greater, but it is not necessary to go so far. On any view, Raffaella acquired title to No 35 at a very substantial discount. She appears to have made no contribution from her own retained assets, had debt of some $200,000 repaid, and the purchase price was at a substantial undervalue, made possible by an “equity gift” (reflecting the willingness of Christopher and Fabiola to transfer title not for the value of the property, but instead merely for the repayment of the existing mortgage debt).

18. [215]

    Finally, there is the evidence of Serena. She was not directly financially interested in the proceedings. Nonetheless, she made no secret of the fact that she no longer spoke to Raffaella. I bear in mind their animosity when assessing her evidence.

19. [216]

    Serena gave her evidence precisely, calmly and authoritatively. She confirmed the conversations concerning the house being Giuseppe’s:

20. [217]

    I accept Serena’s evidence as reliable. In part, that is a conclusion affected by the manner in which her evidence was given. Indeed, to be completely candid, I formed the view that the cross-examiner rapidly formed the view that the sooner her cross-examination concluded, the less harm would be done to Raffaella’s case. Had I been in his position, I would have formed the same view. An example of her highly effective answers in cross-examination (concerning whether Giuseppe assisted in building work) is reproduced below.

21. [218]

    I am certain that Serena had a sincerely held recollection that on multiple occasions involving the family it was agreed that the house remained Giuseppe’s. That recollection could be wrong. But it is corroborated by all of the documents and admissions by Raffaella mentioned above, although I am conscious of the evidence of Christopher, Fabiola and Raffaella to the contrary, as well as the document signed by Giuseppe stating that the $280,000 was a gift.

22. [219]

    I earlier noted that the trial proceeded without Giuseppe’s cross-summons being pleaded. It was plain from his opening written submissions that he sought a constructive trust based on either proprietary estoppel or what is often called a “common intention constructive trust”. Indeed, his written submissions supplied in advance of the trial referred to what I had said about the proper characterisation of such a trust in Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 at [116]-[119]. There was no opposition from Raffaella to his unpleaded case being based in this way.

23. [220]

    There are three key findings of fact, made in a context where family members were accustomed to paying board to contribute to household expenses when they were renting at Woodcroft, of which I am satisfied.

    1. (1)

       First, when Christopher acquired title to No 35, the property where the whole extended family was going to live instead of the previous rented accommodation, payments of board would continue but would go to fund the loan repayments. It was agreed that Christopher would be the legal owner, but that the property would be acquired using (a) the $280,000 supplied by Giuseppe from the sale of property in Italy and (b) money borrowed from the CBA secured by a mortgage over the property, on terms that ultimately Giuseppe would be responsible for servicing the mortgage to the extent that payments of board would not suffice, and it would be held by Christopher on trust for Giuseppe.

    2. (2)

       Secondly, nothing changed when Fabiola became a registered co-owner; she was aware of the basis stated above.

    3. (3)

       Thirdly, nothing materially changed when title to No 35 was transferred to Raffaella, who likewise was aware of the basis stated above. The central difference in the transfer to Raffaella was that instead of the $280,000 funds supplied by Giuseppe by way of case, instead there was an “equity gift” of $167,000, together with the discharge of Raffaella’s personal debts and a transfer of funds of some $15,000. (Even if there were a similar arrangement with the Queensland land, such that it was held beneficially by Giuseppe, the transaction remained one which was substantially favourable to Raffaella). The “equity gift” (which reflected the difference between the value of No 35 and the existing debt) was value owned beneficially by Giuseppe which once again was contributed in order to permit Raffaella to become the legal owner, but on the same basis.

    4. (4)

       For completeness, I acknowledge the possibility that there was some difference in the position involving Raffaella in 2010 than occurred in 2006. The settlement statement tendered by Raffaella, corroborated by the banking documents, establishes that Raffaella received additional benefits, including the repayment of a personal loan and a deposit of some $14,000. But it is not necessary for me to reach any conclusion about whether Giuseppe and Raffaella had a further arrangement or agreement concerning those additional issues. They do not detract from the point which matters, namely, that the beneficial ownership of No 35 remained with Giuseppe, on the basis that he would place Raffaella in funds to meet mortgage payments to the extent that contributions from family members living there did not suffice.

24. [221]

    The elements of a proprietary estoppel in such cases have been stated in Pirrottina v Pirrottina [2025] NSWCA 55 at [35] and Kramer v Stone [2024] HCA 48; 99 ALJR 126 at [37]-[40]. It was said that the four elements of an equitable estoppel arising by reason of encouragement from a promise are:

25. [222]

    These elements are satisfied by the evidence. Christopher, Fabiola and Raffaella all participated in the transfer of No 35 to them, using money borrowed in their name supplemented by capital supplied by Giuseppe, on the basis that the property would be his beneficially. The consensus within the family satisfies the elements of promise and expectation. Giuseppe, who was parting in each case with more than half of his net wealth, proceeded on the basis that first Christopher, then Christopher and Fabiola, and then Raffaella, would keep their word and hold No 35 on trust for him.

26. [223]

    Counsel for Raffaella contended that there was nothing resembling a “life-changing” detriment on the part of Giuseppe, as may be seen in decisions such as Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19. That submission reflects the fact that decisions to stay on a farm, or in a cottage as Ms Van Dyke, need not involve the expenditure of money in order to satisfy this element of proprietary estoppel. But it is not to be thought that detriment is confined to such “like-changing” decisions. In Kramer v Stone, the majority judgment said at [40]:

27. [224]

    The $280,000 contributed by Giuseppe represented the majority of his wealth. There was no challenge to his evidence that it was some 70% of his net wealth at the time. That evidence is inherently plausible, having regard to the family’s immigration to Australia to live in rented accommodation at the time. Further, if as Raffaella submitted the money was a gift to Fabiola for her wedding and also unpaid wages, then it was shockingly unfair to the other five younger children.

28. [225]

    The same is true of the “equity” which was contributed by Giuseppe when No 35 was transferred to Raffaella. Once again it represented the majority of Giuseppe’s wealth, and was to be used to benefit all five of the younger children.

29. [226]

    I find that Giuseppe participated by supplying the $280,000 when No 35 was first acquired, and by supplying the $167,000 when No 35 was transferred to Raffaella, because Christopher, Fabiola and Raffaella all accepted at those times that they held the land on trust for him, and that he would ultimately be liable to meet any shortfall in mortgage repayments and other property expenses if the customary board did not suffice. In both 2006 and 2010, that was substantial detrimental reliance.

30. [227]

    The appropriate remedy is to make good the common assumption. That is the starting point: Priestley v Priestley [2017] NSWCA 155 at [164]; Pirrottina at [98]. However, as will be seen below, that does not mean that Raffaella (to the extent that she incurred expense holding and improving the trust property) is left without remedy. But the discretion as to remedy cannot be exercised without first attending to various subsidiary issues.

31. [228]

    Alternatively, the findings identified above suffice to conclude that there is a “common intention constructive trust”, to the extent that that is conceptually different from proprietary estoppel. The elements are found in Galati v Deans [2023] NSWCA 13 at [53]-[60] and [148]-[149]. The requirements of actual intention are, on my findings, made out, in relation to each of Giuseppe, Christopher, Fabiola and Raffaella. Each intended that the registered proprietor of No 35 would hold that land on trust for Giuseppe, who had provided most or all of the purchase price that was not borrowed, and who would service the mortgage to the extent that payments of board or rent from family members living in No 35 were insufficient. Giuseppe acted to his detriment in contributing the majority of his net wealth to the acquisition of No 35.

32. [229]

    Every mortgage repayment came out of Raffaella’s 920 account. Thus in a purely legal sense, Raffaella repaid the whole of the mortgage (that is to say, the chose in action which was the 920 account between her and CBA was drawn upon by weekly and monthly debits to repay indebtedness in Raffaella’s name from CBA in 2010 and, later, Macquarie Bank in 2019).

33. [230]

    However, contrary to her evidence, I find that Raffaella did not make all the repayments of the mortgage, in a real practical sense. On some occasions at least, Giuseppe deposited funds into the 920 account which corresponded with imminent scheduled mortgage repayments. The clearest example is the $4,455 deposited by him (as I have already found) on 24 January 2012, shortly after Raffaella told him on 11 January 2012 “[y]our repayments are $4,455 and are due on the 1st of every month” (CB 545). But there are numerous other examples of cash deposits into the 920 account from various CBA branches. There are also electronic transfers which include the word “Lended” which seems more likely to reflect Giuseppe. And there is the striking fact that some of the deposits into the 920 account, which obviously come from Raffaella (because the transfers are from other accounts in her name) stated that “Raffy” made the payment.

34. [231]

    I am unpersuaded that Giuseppe made all of the mortgage payments. There are some that were made by Raffaella, including her email on 11 January 2012 “I paid an extra mortgage repayment”. For many, the evidence is unclear.

35. [232]

    Faced with the myriad of detail, no attempt was made to falsify the entirety of Giuseppe’s claim that he paid all the building expenses. Counsel instead, appropriately, focussed on two relatively large items: the solar panels (which cost $14,900) in June 2011, and some timber work which cost $8,000 in May 2018.

36. [233]

    I shall address each of these two items in turn.

37. [234]

    The solar panels. Giuseppe said in his affidavit “I arranged and paid for Solar panels to be installed in 2011” and exhibited an invoice which he said he paid. However, Raffaella said that she took out a personal loan of $20,000 to pay for the solar panels, and then paid for the panels from her 920 account. She exhibited the loan approval as well as the invoice. The documents exhibited are for a personal loan in the amount of $15,000, approved by the CBA on 27 April 2011. However, there is a deposit of $20,000 into the 920 account on 28 April 2011 and it is reasonable to assume that the CBA increased its approval to $20,000 (CB 794), which is what Raffaella deposed to and as to which she was not cross-examined.

38. [235]

    In closing address, Mr Young fastened upon the $14,400 for solar panels, saying “Now, we know, we can tell from the bank records that at least some of the payments that [Giuseppe] claims, he didn’t make” (T150.12). The example was a 30 June 2011 debit of $14,400 from Raffaella’s 920 account described as “solar system pay” (CB 796). The invoice was in evidence (CB 521), it was issued by “RME Renew My Energy”, addressed to Raffaella, and showed that a deposit of $500 had been paid on 29 April 2011 with an outstanding balance of $14,400. The 920 account also discloses a transfer to “RME” of $500 on 29 April 2011 (CB 794).

39. [236]

    For the year prior to 28 April 2011, the account had little money in it. On 28 April 2011 there is a deposit of $20,000 described as “746473218 Admin” and on the following day the $500 deposit for the solar panels was withdrawn. As earlier noted there ensure regular repayments of $94 described as “LN REPAY 746473218” thereafter. This accords with Raffaella’s evidence that she “applied for and was approved for a $20,000 personal loan for the solar panels” (CB 124). In a practical sense, the $20,000 deposit was the source of funds for the solar panels. (The difference between the $14,900 needed and the $20,000 borrowed was not explained.)

40. [237]

    The calculations approving the $15,000 loan were based on 83 monthly payments of $275 and a concluding payment of $172.45. For a loan of $20,000, the repayments would be in the order of $367 (ie. 275 x 20,000/15,000) over the same seven year period. And, sure enough, there are weekly repayments of $94 from the 920 account, commencing on 5 May 2011, and thereafter on 12, 19 and 26 May, 2, 9, 16, 23 and 30 June, rising to $100 on 7, 14, 21 and 28 July (CB 353-357), and 4, 11, 18, 25 August, 1, 8, 15, 22 and 29 September, and so on. The repayments continue at $100 per week until 16 August 2012. There follow transactions consistent with paying out the $20,000 personal loan. Page 1 of Statement 17 (CB 327) shows the last $100 repayment to the 218 account, and then a deposit of $21,064 and a transfer to the 218 account of $9,041.61 described as “PL pay out”:

41. [238]

    Thus, it is true that Raffaella paid for the solar panels, doing so with funds borrowed by her and financed by a personal loan. However that indebtedness was serviced from the 920 account for the ensuing 15 months no differently from the mortgage, and was discharged by reason of an “investment return” received from another account on 17 August 2012.

42. [239]

    I return to Raffaella’s email of 11 January 2012, reproduced above, which referred to “your personal loan repayments of $366 which are also due the 1st of every month. They are currently set-up weekly to come out every Thursday for $100”. The $100 weekly debits from the 320 account are to the 218 account. That is to say, in her email of 11 January 2012, Raffaella told Giuseppe that the loan taken out in her name used to pay for the solar panels being repaid by recurring debits of $100 as “your personal loan repayments”.

43. [240]

    That said, it is also necessary to bear in mind that Raffaella was not taken to the link between the $100 debits and her email of 11 January 2012.

44. [241]

    The result is that it remains unclear whether Giuseppe indirectly paid for the solar panels. I make no finding one way or the other.

45. [242]

    Timber floor. The second example selected by counsel in closing address was an amount of $8,000 paid, some seven years later, for some timber work, which included more than merely some flooring, but which was described by all in this trial as the “Timber floor”.

46. [243]

    It was put in closing address on behalf of Raffaella:

47. [244]

    Mr Kauffman, in response to the flooring, pointed to deposits of $55,000 less than three weeks before the $8,000 flooring invoice was paid.

48. [245]

    The invoice for the floor was actually dated 8 May 2018. That was 2 days after funds had been transferred from the 920 account. It was sent to Giuseppe’s “dodo” email account on 15 May 2018. The documents do not suggest that a hardcopy was provided directly to Raffaella, although it may have been.

49. [246]

    This is consistent with Giuseppe’s evidence:

50. [247]

    It is true that the $8,000 was withdrawn on 6 May 2018 to pay for flooring. However, as wa pointed out in closing address, there were deposits of $10,000 on 13-17 April made by Giuseppe (CB 597, 600-603). (These transactions would have been on statement 40 which has not been tendered, and so it is necessary to go to the CBA spreadsheet). Each deposit identified Giuseppe by name. However, Giuseppe retained his Westpac receipts, which describe each deposit as “Debt repayment”. Further, the salesperson “Connie” sent the invoice directly to Giuseppe on 15 May 2018 (CB 604). That occurred at a time when the invoice had been paid in full. If Giuseppe had no interest in No 35 or the amounts spent on flooring, it is difficult to see why that would occur.

51. [248]

    Once again, I am not persuaded by Raffaella’s submission that Giuseppe’s claims are “quite clearly wrong”.

52. [249]

    I find that Giuseppe did building work on the house. That was his evidence. Contrary to what was put to him in cross-examination, he did work for Mark which was well regarded. And it was supported by Serena’s evidence:

53. [250]

    Serena answered the questions asked, and corrected the cross-examiner when he (inadvertently) misstated her evidence that she had seen her father assist the licensed tradesmen working on the house.

54. [251]

    Raffaella denied that Giuseppe did any work, but it is difficult to see that she would be in a position to say that from her own knowledge. There were adjectival issues whether Giuseppe had any skills relevant to building work, and whether he was licensed. He freely accepted he was not licensed, but said that where necessary he worked under the supervision of a licensed tradesman (such as an electrician). There was an attempt to cross-examine him to the effect that he had no specialised skills, but on that point I accept his evidence, which was corroborated by Serena.

55. [252]

    I find in accordance with Serena’s evidence that Giuseppe paid the contractors who did work on the site. I also find that Giuseppe did some construction work on the site, albeit that it was often supervised by licensed tradesmen.

56. [253]

    Other issues. A deal of time was occupied by a handwritten note, purportedly signed by Fabiola, concerning wedding expenses and, perhaps also, unpaid wages. In her affidavit, she doubted that the signature was hers; in cross-examination she was more confident that it was not. The signature resembles to the unassisted eye other instances of Fabiola’s signature at around this time. But there was no expert evidence and in any event it is unnecessary to resolve this issue. The point of the submissions on the handwritten note were to buttress the submission that the $280,000 was a gift. I do not accept that it was; I do not accept that Giuseppe gave the majority of his wealth to Christopher and Fabiola as a wedding gift or as unpaid wages.

57. [254]

    Likewise it is not necessary to determine whether Fabiola worked in Giuseppe’s café without being paid, contrary to a document which appeared to be the expense book with handwritten payments of wages. That too was directed to the character of the $280,000.

58. [255]

    Finally, it is not necessary to address the changed arrangement in around 2021 and 2022 when Giuseppe returned to live in No 35, or the competing evidence about efforts to transfer title at this time. That does not detract from the conclusion that Raffaella holds No 35 as a trustee, which arose from events more than 15 years earlier, although it will impact upon her entitlement to indemnity.

Other claims

1. [256]

   In accordance with “the general principle that a trial judge should determine all issues in order to assist the appeal process and obviate the need for a retrial” (Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227 at [99]), I turn to Giuseppe’s alternative claim that No 35 stands charged to secure the repayment of the amounts contributed to its acquisition, improvement or maintenance.

2. [257]

   In closing address, it was confirmed that this case was confined to a claim for pecuniary relief secured by a charge assuming that a proprietary estoppel had been made out but a constructive trust was not the appropriate relief:

3. [258]

   Accordingly, let it be assumed that there was an agreement on which Giuseppe relied to his detriment, but that I am wrong to conclude that the appropriate remedy is a trust. Giuseppe claims a pecuniary entitlement reflecting the cost of the amounts he has paid since 2019.

4. [259]

   Ex hypothesi, Giuseppe contributed $280,000 when No 35 was acquired by Christopher, and for the reasons given above, that was not a gift.

5. [260]

   I am unpersuaded that good conscience would require Raffaella to repay Giuseppe for the cost of the various improvements to No 35. It is trite that the cost of improvements can bear little relationship to their value, and indeed many home improvements may diminish the property’s value. The extensive roofing installed which covers much of the back yard may be an example. There was no evidence of any value added to the property by any of the improvements.

6. [261]

   I am persuaded, contrary to Raffaella’s evidence and submissions, that Giuseppe performed building work on No 35. However, the evidence does not permit me to ascribe any monetary amount to the extent to which that work improved the value of No 35.

7. [262]

   Underlying the conclusions in the preceding two paragraphs is my view that Raffaella should not be held liable for the actual cost to Giuseppe, or the cost of an equivalent worker, which have not been shown to have improved the value of the land owned by her.

8. [263]

   Then there is the question of determining to what extent in fact Giuseppe put Raffaella in funds to make mortgage repayments. On this issue Giuseppe bears the onus. He has tendered none of his own financial records to establish which of the cash deposits were made by him. I do not accept that he paid, personally, all of the repayments to the Homeside Lending account when No 35 was owned by Christopher and Fabiola. The deposits are made every month, but all of the evidence points to Giuseppe being in Italy for the Northern Hemisphere summer. Of course that would not prevent Giuseppe supplying funds for someone to deposit at the Rouse Hill branch, but Giuseppe has failed to supply any documentary evidence of this, and instead has been highly selective in supplying his own banking records.

9. [264]

   I do accept that Giuseppe made some payments to service the mortgage, although the most consistent source of funds were the contributions made by Claudia (from the social security payments she received). I have mentioned the deposit of $4,455 above. I think it is more likely than not that many of the payments came from Giuseppe. Against that, it is also necessary to bear in mind that Giuseppe has obtained a benefit over the years of accommodation at No 35, and that ultimately on the hypothesis against which this claim falls to be tested the issue is to what extent would equity impose a remedy upon Raffaella in consequence of Giuseppe’s detrimental reliance on his assumption that he would have a proprietary interest in No 35, such remedy being moulded by what is necessary to prevent an unconscientious assertion by Raffaella of her legal rights.

10. [265]

    On the evidence, the only substantial (in excess of $10,000) payments established, aside from the $280,000 paid in 2006, are the $57,300 paid by Giuseppe to Raffaella and Mark in April 2018 (evidenced by Giuseppe’s Westpac receipts). All were described as “debt repayments”. One of the payments was made to Mark. There was a deal of contested evidence as to what they were for. None was especially persuasive. I find that they were, as described, repayments of debt, rather than contributions to the purchase of No 35.

11. [266]

    I would conclude by holding Raffaella liable to account for the value of the original $280,000 contribution. That reflected slightly more than half the purchase price of $545,000 in 2006. Admitted into evidence was a one page market appraisal by a local real estate agent who referred to recent sales of three comparable properties at $2.05m, $1.855m and $1.975m and who estimated that, as at 24 March 2025, the property would sell for $1.9m - $2m (CB 1096). The reasoning is slender but the conclusion is not implausible. It is overwhelmingly clear that the appreciation in value is attributable not to improvements on the property, but on the general rise in Sydney residential real estate prices. I think equity would not permit Raffaella to gain the entirety of the benefit of the capital appreciation in circumstances where slightly more than half of the acquisition costs came from Giuseppe in circumstances where it was not a gift or a loan but a capital contribution to an asset in which he retained a beneficial interest.

12. [267]

    On the hypothesis applicable to this section of these reasons, namely that there should not be a constructive trust, I would disregard all other contributions made by Giuseppe, which are difficult to quantify, bearing in mind the limited extent to which they contributed to value and the benefits received by Giuseppe over the years, and impose a charge on the property to secure the repayment of an amount reflective of 51.4% of its value (280/545 approximately equals 51.4%), to be determined by a sale in the absence of agreement between the parties.

Conclusions and orders

1. [268]

   For those reasons, I conclude that Giuseppe succeeds in his primary claim based on a trust. I shall make a declaration to that effect.

2. [269]

   I have concluded that Raffaella holds No 35 on constructive trust for Giuseppe, pursuant to the common understanding they shared in 2010 whereby he would provide the balance of the purchase price not lent from CBA as well as service the mortgage payments. Pursuant to that common understanding, Raffaella obtained immediate benefits in excess of some $200,000 of personal indebtedness being repaid, a cash deposit of $15,000, and title to No 35 at a discount through a $167,000 “equity gift”, but also the obligation to repay indebtedness of some $670,000, which would require more than the payments of board from family members living in the house.

3. [270]

   That conclusion is founded upon the documents on which Raffaella was cross-examined, my view that her answers did not materially detract from those documents being powerful admissions that the property was not hers beneficially, in contrast to the plausible explanation given by Giuseppe of his letter stating the $280,000 to be a gift, and the fact that according to the settlement sheet and as corroborated by the banking records, Raffaella obtained legal title at a substantial discount and in circumstances where she received significant pecuniary benefits.

4. [271]

   I have also found that at least some of the mortgage repayments were made by Giuseppe in the real and practical sense deployed in these reasons – by his placing funds in her 320 account – in accordance with the original agreed position. However, I have also concluded that some (quite possibly, many) repayments were made by Raffaella without having been put in funds by Giuseppe.

5. [272]

   To the extent that Raffaella used her own funds in order to meet the difference between board received and the obligations to make repayments to CBA and later Macquarie Bank, she was incurring expenses as a trustee, and has an entitlement to be repaid from trust assets. The starting point is statute. Section 59(4) of the Trustee Act 1925 (NSW) provides that a trustee may reimburse herself, or pay or discharge out of the trust property all expenses incurred in or about execution of the trustee’s trusts or powers. Section 5 defines trust to include a constructive trust, unless the context or subject-matter otherwise indicates or requires. The reasoning in Butterfield v Public Trust [2017] NZCA 367; [2017] NZCCLR 27 at [21]-[22] supports construing “trustee” in s 59(4) as extending to constructive trusts, at least where the trustee acts reasonably and in good faith. There are occasions when a constructive trustee is not entitled to the right of indemnity enjoyed by ordinary trustees: see Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39 (a case of a constructive trust imposed as between vendor and purchaser). However, in the present case, I see no reason to displace the principle, in circumstances where the expenses incurred by Raffaella were for repayment of debt secured over the trust property and for other property expenses such as rates which were an inevitable consequence of ownership of No 35. The position was stated broadly in Rowley v Ginnever [1897] 2 Ch 503 at 507 (which concerned a constructive trustee): “when you find that a person in possession of property has expended money in improving that property, if he turns out not to be the sole and absolute owner there is a presumption in his favour that, on accounting for the property to the other persons interested, he is to be recouped the money so expended to the extent of the improvement”. The existence of such a right of recoupment appears to have been endorsed in Elder’s Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426 at 439; [1963] HCA 48, as well as in Enright v Newton [2021] 2 NZLR 412; [2020] NZCA 529 at [148].

6. [273]

   Further, Raffaella’s entitlement to an indemnity would prima facie be secured by a lien over those trust assets: Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1; 99 ALJR 295 at [1].

7. [274]

   There are complicated questions which remain unresolved in order to quantify Raffaella’s entitlement to an indemnity. To what extent must Raffaella account for the benefit she received in 2010? Should a distinction be drawn between the discharge of her indebtedness in respect of the Queensland land, and the discharge of her personal loan and the receipt of $14,032.45 on 1 December 2010? To what extent and at what rate does interest accrue on Raffaella’s entitlement to be reimbursed? What is the impact of the new arrangement struck in around 2021 when it was agreed that expenses be split equally? I am also conscious that at this level, both Raffaella and Giuseppe are asserting rights in equity, to which the principles in Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 may apply, such that any relief may be qualified by an obligation to repay a benefit (such as tax benefits) wrongly claimed. Finally, there are complicated factual questions – not assisted by the absence of full banking records for either side – as to the extent to which Giuseppe in fact made funds available to Raffaella to make mortgage repayments and other expenses. None of this was argued. I do not think it would be right to shut Raffaella out of such a claim, which is consequential upon a late unpleaded cross-summons advanced by Giuseppe and Claudia shortly after they obtained legal representation and reflects an incident of the trust for which they contended. Nor would it be right for Giuseppe and Raffaella to be confined to the evidence advanced at this trial to resolve the issues summarised above.

8. [275]

   There are a number of ways in which the resolution of the outstanding pecuniary aspects of this litigation may occur, assuming it is not possible for Giuseppe and Raffaella to reach agreement. One is a further exercise conducted by me, which would have the advantage that I have some familiarity with those financial records which the parties chose to place into evidence. Another is a hearing before another judge. A third is a referral to a referee. None is incompatible with a court-annexed mediation.

9. [276]

   I shall permit the parties to be heard as to further orders, including costs, although it will be clear from the above that my present view is that there is no reason to depart from the default position in UCPR r 42.1 that costs follow the event in relation to the costs of the trial, although it is also possible that there should be some variation in relation to other costs (for example, costs thrown away by the vacation of the 17 July 2025 hearing).

10. [277]

    I make the following orders (the actual address of No 35 appears in the orders entered on JusticeLink but not in these reasons):