Campagnolo v Fitzpatrick

At the conclusion of a hearing on 19 March 2026, the Court made the orders set out in [57] below. The orders were made as a result of the Court’s acceptance of the submissions made on behalf of the defendant, Ms Zella Fitzpatrick, that these proceedings had been settled in accordance with an agreement made by the plaintiff, Mr Kenneth Campagnolo, accepting a Calderbank offer made on behalf of Ms Fitzpatrick. These are the reasons for those orders.

By a motion filed on 25 February 2026, Ms Fitzpatrick sought orders which included:

At the hearing before me, Ms Fitzpatrick was represented by Mr C Liedermann of Counsel. Mr Campagnolo appeared for himself. It was referred to me for hearing by the Registrar in Probate from her regular Thursday list.

Ms Fitzpatrick relied on an affidavit sworn by her solicitor, Mr Clayton James. Mr James’ employed solicitor, Mr Stephen Bell, had the day to day conduct of these proceedings on behalf of Ms Fitzpatrick. During the course of the hearing, Mr Liedermann also tendered some other documents.

When the matter came before me, I enquired of Mr Campagnolo whether he had any evidence or whether he required an adjournment to put on any evidence or obtain legal representation (or both). Mr Campagnolo said he had no evidence and that he was ready for the motion to be heard.

In the events which happened, as the argument developed, I invited Mr Campagnolo to consider whether he had any evidence on certain issues. He indicated that such evidence might be on his phone. I took a slightly extended luncheon adjournment to enable Mr Campagnolo to search his phone. After the luncheon adjournment he tendered two documents.

Finally, Mr Campagnolo represented himself very capably. However, as is often the case with a self-represented litigant, what he put from the bar table (including his answers to questions I asked him in order to understand the context of the relevant events) was, as far as a lawyer would be concerned, a mixture of submissions and factual assertions. I informed Mr Campagnolo that, without any criticism of him, but as a matter of fairness to Ms Fitzpatrick so that her legal representative would know what evidence Ms Fitzpatrick had to meet, I would not treat anything he said to me from the bar table as evidence. This meant that the only evidence formally before the Court tendered by Mr Campagnolo were the two documents which he tendered after the luncheon adjournment.

The answer to this question engages basic contractual principles.

On 2 September 2025, the parties had engaged in an unsuccessful court-annexed mediation. On 20 October 2025, Mr Bell sent the offer (the terms of which became the agreement) to Ms Amanda Azzinnaro, a Senior Associate in the employ of Mr Campagnolo’s solicitors, Stratus Legal Group:

On 24 October 2025, according to Mr James’ affidavit, “Stratus Legal Group indicated they would cease acting for the plaintiff”. Acting on that “indication” (no notice of ceasing to act actually having been filed), Mr Bell sent this email to Mr Campagnolo on 27 October 2025:

Mr Bell’s email reproduced in the preceding paragraph attached the offer.

There was no dispute that Mr Campagnolo sent emails in these terms to Mr James at 4.17pm on 29 October 2025 and 5.09pm on 30 October 2025:

However, it does not appear that those emails were received because Mr Campagnolo had not included the country code top-level domain “.au” at the end of Mr James’ email address. It was not until 1.04pm on 31 October 2025 that Mr Campagnolo successfully sent this email to Mr James and the Court’s generic probate Registry email address.

While there was no evidence as to what the “attached letter” was, Mr Campagnolo candidly acknowledged that he had accepted the offer. However, he made clear that his implacable position was that he no longer wished to be bound by any agreement created by his acceptance.

The Court finds that the agreement came into existence by Mr Campagnolo resending his email on 31 October 2025 to Mr James’ correct address. In reaching this conclusion, I have not overlooked that the offer was to “be withdrawn at 8:30am on 30 October 2025” and that Mr Campagnolo’s acceptance does not appear to have been successfully communicated until 31 October 2025. There are at least three reasons why, despite this, I am satisfied that a contract in the terms of the offer came into existence:

Mr Liedermann submitted that that the offer contained all the terms essential to bring the litigation to an end and that Mr Campagnolo had accepted it. What followed, in Mr Liedermann’s submission, was that a contract had been made between the parties which fell into either the first or second class identified by the High Court in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 at [360]:

In my respectful opinion, this was not a case to which Masters applied because the parties had not agreed that “the matter of their negotiation shall be dealt with by a formal contract”. There is a difference between an executory contract that is complete in its terms, but which as part of those terms requires other documents to be brought into existence, and where the parties have agreed that the terms of their agreement will be more formally recorded. In this case, the agreement is an example of the former. That is because the agreement which came into existence upon acceptance of the offer did not contemplate the creation of a further, more formal embodiment of the agreement, but did require the execution of two additional documents, being a notice of discontinuance and a form of release in performance of the agreement.

The terms of the agreement are those set out in the offer. Paragraph 1 of the agreement would be performed by Mr Campagnolo filing a notice of discontinuance. Paragraph 2 required Mr Campagnolo to provide a release in some form, having the effect identified in paragraph 2. The fact that a notice of discontinuance and a release in some form would have to be brought into existence does not derogate from the Court’s conclusion that the binding agreement arose upon Mr Campagnolo’s acceptance of the offer.

The mutual promises in the agreement satisfy the requirement for consideration. It remains only to say something about intention to contract, which must be determined by reference to the objective circumstances. The Court is satisfied both from the terms of the offer itself and taking into account the purpose for which an unaccepted Calderbank offer may later be deployed, that viewed objectively the parties intended to be immediately bound upon acceptance of the offer.

That a Calderbank offer was not capable of immediate acceptance to settle proceedings is frequently put as a reason why it would be ineffective to be considered in the exercise of the Court’s discretion as to costs. While it is theoretically possible, it is relatively unusual in the Court’s experience for a Calderbank offer to provide expressly that a legally binding settlement of the proceedings did not arise until, for example, various documents had been agreed and executed by the parties to give effect to the settlement. This is not such a case. The present case is a family provision claim and the terms of the offer were both clear and sufficient to resolve such a claim.

Mr Campagnolo’s explanation for why he no longer wished to be bound by the agreement was based, as I understood him, on what I have no doubt are his genuinely held concerns about how Ms Fitzpatrick was able to (as he alleged she had done) hold herself out as the late Mr Klein-Boonschate’s wife when he (Mr Campagnolo) was in fact his husband (Mr Campagnolo showed me his marriage certificate to Mr Klein-Boonschate); concerns about the accuracy of the inventory of assets of the estate; and, what I will broadly describe as property disputes between him and Ms Fitzpatrick about what assets were his (Mr Campagnolo’s) and what assets properly belonged to the estate. In finding against Mr Campagnolo in the present application, I am not to be taken as making any finding (beyond accepting Mr Campagnolo’s concerns are genuinely held) about any of those matters. They were not the subject of the present litigation, a matter that was pointed out to Mr Campagnolo in Mr Bell’s letter set out in [10] above.

The difficulty for Mr Campagnolo is that none of the matters upon which Mr Campagnolo addressed me from the bar table presents a legal basis to vitiate or set aside the agreement which the Court has found came into existence. Those grounds might include fraud, misrepresentation or mistake. None of those (in their strictly legal sense) has been demonstrated by Mr Campagnolo.

The Court finds that Ms Fitzpatrick is entitled to a declaration to the effect of that sought in prayer 1 of the motion set out in [2] above.

Having established that the parties had made the agreement to resolve these proceedings, Ms Fitzpatrick sought orders to have that agreement carried into effect. Ignoring what in fact subsequently occurred, that could be done by ordering the agreement be specifically performed by Mr Campagnolo executing a notice of discontinuance and a simple form of release. Mr Campagnolo informed me in no uncertain terms that he would not be executing anything, in which case the Court could make an order that in lieu of Mr Campagnolo signing those documents, they could be signed on his behalf by the Registrar (Civil Procedure Act 2005 (NSW), s 94).

However, having determined the terms upon which the proceedings had been compromised, s 73(1)(b) of the Act provides that the Court “may make such orders as it considers appropriate to give effect to any such determination”. That power is to be exercised in a way which gives effect to the overriding purpose under s 56 of the Act. Mindful of that obligation, and in preference to having documents prepared that would have to be executed by the Registrar on Mr Campagnolo’s behalf, the facts of this case provide an evidentiary basis for the Court to make orders pursuant to s 73(1)(b) of the Act to give effect to the agreement. To understand why this is so, it is necessary to say something about the negotiation that took place after the offer was accepted by Mr Campagnolo.

There was no dispute that, on or about 14 October 2025, Mr Campagnolo received a “notice of intention to file notice of ceasing to act” of that date executed by his solicitor. Nothing turns on the fact that it was incorrectly addressed to Ms Fitzpatrick rather than Mr Campagnolo. That notice, which said that a notice of ceasing to act would be filed after seven days, was eFiled with the Court on 24 October 2025. The Court infers that the feeling of that document is the “indication” referred to by Mr James in his affidavit.

Mr Campagnolo told me that upon receiving that notice, he was of the view that his solicitors were no longer acting for him. Whatever Mr Campagnolo may have thought, as far as the Court and Ms Fitzpatricks’ solicitors are and were concerned his solicitors remained on the record as his solicitors up until they filed a notice of ceasing to act on 29 January 2026 (see UCPR Pt 7 r 7.30).

The evidence before the Court demonstrates that notwithstanding having given their notice of intention to file a notice of ceasing to act, Mr Campagnolo’s solicitors in fact continued to act for Mr Campagnolo and took steps to give effect to the agreement. The evidence includes emails which I will next set out passing between the parties’ solicitors in November and December agreeing upon the terms of consent orders and other documents that would be required to give effect to the agreement.

The evidence discloses that, consistently with not having filed the foreshadowed notice of ceasing to act, Mr Campagnolo’s solicitors set about negotiating with Ms Fitzpatrick’s solicitors a form of consent orders to give effect to the agreement, together with a settlement check list and family tree, that would, in accordance with the Court’s usual practice, enable the consent orders to be made in the Registry. In this case, because the consent orders proposed the Court’s approval of a release of rights by Mr Campagnolo under s 95 of the Succession Act 2006 (NSW), the Registrar would in fact have referred the matter to me (as the current Family Provision List judge) to make the orders in chambers if the Court was satisfied that should be done. I return to this point in [52] below.

Mr Liedermann tendered consent orders signed by Ms Azzinnaro and dated 11 November 2025 that were provided to the Court which included the notation “the Court notes that the parties have reached an agreement and that requested adjournment will allow for finalisation of necessary forms and documents.” The parties asked the Court to vacate a listing on 13 November 2025 and for a relisting on 11 December 2025. The Court granted that request and made the notation sought by the parties.

At some point in November 2025, Mr Bell sent Ms Azzinnaro, among other things, a form of consent orders.

On 28 November 2025, Ms Azzinnaro sent Mr Bell proposed amendments to those consent orders, including detailed provisions about how the property the subject of the agreement was to be sold. These included a provision to the effect that Mr Campagnolo would receive the settlement sum no later than four months after the orders were made. This led to a request by Mr Bell (made at a time the evidence does not disclose, but before 10 December 2025) that Mr Campagnolo agree to the four month period being six months.

On 9 December 2025, Ms Azzinnaro sent this email to the Registrar in Probate:

The proceedings were listed for mention on 18 December 2025.

Matters came to a head on 10 December 2025 as between the solicitors, the only outstanding matter being the request. Otherwise, as between the solicitors, there were no further issues to be resolved about the consent orders or related documents.

On 10 December 2025 at 10.27am, Ms Azzinnaro emailed Mr Bell, including:

On 10 December 2025 at 11.05am, Mr Bell sent Ms Azzinnaro the final set of documents “so we are working from the same documents”.

On 10 December 2025 at 11.32 am, Ms Azzinnaro emailed Mr Bell including:

On 10 December 2025 at 12.29am, Mr Bell emailed Ms Azzinnaro, including “I left it in draft so you can change it if needed”. The Court infers this is a reference to having left the payment period at four months.

On 10 December at 1.17pm, Ms Azzinnaro emailed Mr Bell:

On 15 December 2025, Ms Azzinnaro emailed Mr Bell, including:

I am aware as a matter of the Court’s practice that the reference to “tomorrow noon” is a reference to the cut-off period for consent orders to be submitted to the Registrar in advance of her list.

On 16 December 2025, Mr Bell emailed Ms Azzinnaro:

I shall refer to the consent orders attached to this email (which include the change in the latest payment date to six months) as the Consent Orders. An examination of the Court file discloses that Mr James emailed the Registrar in Probate on 17 December 2025, copied to Ms Azzinnaro and others, including:

The Registrar vacated the listing for 18 December 2025 and relisted the proceedings on 12 February 2026.

On 29 January 2026, Ms Azzinnaro filed a notice of ceasing to act, relying upon the notice of intention that had been served on Mr Campagnolo in October 2025 (see [26] above).

The motion was filed on 25 February 2026.

In fairness to Mr Campagnolo, I record that he strenuously contended from the bar table that he had had no contact with Ms Azzinnaro about any proposed attendance at her office on 15 December 2025 (see [38] and [40] above). However, conformably with what I had told Mr Campagnolo at start of the hearing (see [7] above), I gave no evidentiary weight to what he told me from the bar table.

However, for present purposes it is not necessary for the Court to determine what Mr Campagnolo knew (or did not know) about the negotiation. There can be no doubt that the solicitors had ostensible authority to settle the matter on behalf of their clients. This would extend to agreeing upon the form of the documents to give effect to the settlement. Mr Liedermann’s written submissions proposed an alternative analysis that the agreement had come into existence upon the provision by “the defendant’s solicitor” of the Consent Orders (which included the six month payment period).

With respect, that submission is based upon a misunderstanding of the facts. It was Mr Bell, the plaintiff’s solicitor, who sent through the Consent Orders. It was his client who had made the request. While Ms Azzinnaro had expressed optimism that Mr Campagnolo would agree to the request (see [36] above), that matter expressly remained subject to her instructions. There is no evidence that Mr Campagnolo gave her those instructions. Having properly qualified her expression of optimism, the facts do not allow a finding that the Consent Orders represent a result binding on the parties as a result of the agreement of their respective solicitors. The proposed change from four to six months which was the subject of the request was never agreed by Mr Campagnolo (or his solicitor).

The present relevance of the Consent Orders is not that they are binding on the parties. Their relevance is in relation to the Court’s power under s 73(1)(b) of the Act to “make such orders as it considers appropriate to give effect to” its determination as to whether proceedings have been compromised. Mr Liedermann submitted that because the Consent Orders were the product of the negotiation, the making of those orders would be an appropriate way of giving effect to the agreement. I accept that submission.

With one exception, the Court will make orders in the form of the Consent Orders, including the six month payment date. I do so on the basis of the evidence in Ms Azzinnaro’s email (see [36] above) that she expected Mr Campagnolo would agree to the six month period. The one exception is that the Consent Orders included the Court’s approval of Mr Campagnolo’s release of his rights against Mr Klein-Boonschate’s estate. I do not propose to include that order because it would be futile to do so. To give such an approval the Court would require evidence from Mr Campagnolo to be satisfied that he has given the release on an informed and considered basis. Mr Campagnolo made it quite clear that he was now completely opposed to the agreement and would not cooperate in any way. Mr Liedermann did not wish to be heard against my suggestion that there was no point including an order which it was clear from Mr Campagnolo that he would never provide the Court with the evidence necessary for the Court to make.

Orders (2) to (13) in [57] below are in the terms of the Consent Orders.

Notwithstanding that an indemnity costs order was sought in the motion, Mr Liedermann properly accepted that he did not have a basis to apply for such an order. He sought his client’s costs of the motion on the ordinary basis.

I explained to Mr Campagnolo that costs ordinarily follow the event. I invited him to make any submission as to why that should not be the Court’s order in this case. He responded that he would not be able to pay that or any other order due to his parlous financial and personal circumstances. A party’s ability to satisfy a costs order in relation to an application such as the motion is not a relevant consideration in the exercise of the Court’s discretion as to costs. Ms Fitzpatrick had succeeded on the motion over Mr Campagnolo’s opposition. I was therefore satisfied that costs should follow the event.

Finally, I note that Order (4) requires the settlement sum is to be to Stratus Legal Group. That firm no longer acts for Mr Campagnolo. Whether he wishes to exercise the liberty under Order (13) to apply for the payment to be made directly to him is a matter for Mr Campagnolo. The Court expresses no view as to whether such an application would be successful.

The Court’s orders were: