Condello v Kim

[2018] NSWSC 394

Supreme Court

New South Wales

Medium Neutral Citation:	Rocco Condello v Sung Soo Kim [2018] NSWSC 394
Hearing dates:	6, 7, 8 February 2017; 1, 24 March 2017
Decision date:	29 March 2018
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Additional provision ordered for first plaintiff
Catchwords:	ESTOPPEL — proprietary estoppel — whether representations made — whether issue estoppel, res judicata or Anshun estoppel arise from earlier Family Court proceedings where declaration of no interest in the subject property made by consent   SUCCESSION — family provision application —adequacy of provision — application by adult children — obligation to provide for disabled adult child notwithstanding estrangement
Legislation Cited:	Family Law Act 1975 (Cth) Succession Act 2006 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Camernik v Reholc [2012] NSWSC 1537 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Day v Couch [2000] NSWSC 230 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Effem Foods P/L v. Trawl Industries of Australia P/L (receivers and managers appointed - in liquidation) & Ors (1993) 43 FCR 510; [1993] FCA 488 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Grundel v The Registrar General (1990) BPR 97-340 Kinch v Walcott [1929] AC 482 Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377 Underwood v Gaudron [2014] NSWSC 1055 Verzar v Verzar [2014] NSWCA 45 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wheatley v Wheatley [2006] NSWCA 262 Zahra v Francica [2009] NSWSC 1206
Category:	Principal judgment
Parties:	Rocco Condello (First Plaintiff) Gina Miceli (Second Plaintiff)   Sung Soon Kim (First Defendant) Also Vasco (Second Defendant)
Representation:	Counsel: Dr C Mantziaris (Plaintiffs) S Chapple (Defendants)   Solicitors: Golattas Solicitors (Plaintiffs) Will Dispute Law (Defendants)
File Number(s):	2015/76052
Publication restriction:	No

Judgment

Summary

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

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

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

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

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

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

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

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

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

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

The evidence and procedure

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

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

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

1. The type of work Rocco performed on the Farm and the hours in which it was performed;

2. Whether, and if so, how, this work changed over time; and

3. The specific Italian words used in what were said to be the conversations between Rocco and Diego.

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

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

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

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

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

General observations about the witnesses

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

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

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

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

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

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

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

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

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

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

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

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

Findings of fact

31. Diego was born on 17 October 1927.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“When I had the car accident I injured my knee. For a couple of weeks I was, I wasn't able to get around very well. Then as time went on my knee got better and I went back to doing normal work. About maybe three, four months after the car accident, one morning I went on, on my delivery and I started to get pain in my joints and like high temperatures. The times I was in hospital I wasn't able to work. But I was still able to do work with the tractors. I was able to do deliveries and picking and bunching. The real labour intensive, like I wouldn't, wasn't able to push a wheelbarrow full of manure or you know, heavy work like that I wasn't able to do.”

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

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

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

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

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

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

“DIEGO CONDELLO of Lot XXX, Bossley Park / Market Gardener and ROCCO CONDELLO of the same address Pensioner as tenants in common EQUAL SHARES”

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

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

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

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

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

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

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

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

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

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

64. Section 92 of the FLA then included:

“(1) In proceedings other than proceedings for principal relief, any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.

…

(3) Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

79. In 1998, Rocco was diagnosed with osteoporosis.

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

81. In that same year, Diego married Giustina Lapanne.

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

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

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

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

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

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

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

“I want someone to look after me. I asked Gina. I promised her that all property will be left to her but she refused.

…

I don’t want someone just to come to the house a couple of days a week. I want a wife, someone to live with me the whole time.

…

Oh if I could find a woman like Helen I'd marry tomorrow. Women like her have a different mentality.”

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

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

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

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

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

“I understood that upon signing the financial agreement and marrying Diego I would be expected to move in with him and look after him. The advantage I had to gain from that would be I would be able to live in one place quietly and comfortably without worrying about daily sustains [sic] through my unstable casual income. I had gone through unexplainable hardship during the period 2008 to 2011 so I really wanted quiet and simple lifestyle in just looking after Diego and doing good things for someone who really needed my caring and love which I thought could help me recover emotionally and financially from my miserable past.”

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

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

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

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

“Diego covenants, promise and undertakes in consideration of Sung executing this Section 90B Financial agreement to include an unconditional gift in his Will, which he promises not to revoke, that on his death he shall devise to Sung one half of the Bossley Park property by transmission application to Sung along with all improvements and furniture and fittings and chattels and free of any mortgage, charge, lien or other encumbrance and in support of this covenant Diego consents to Sung being entitled to lodge a caveat preventing any dealings effecting this property until death.”

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

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

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

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

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

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

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

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

106. These proceedings were commenced on 12 March 2015.

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

The Will and the Estate

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

109. The Will provides:

1. In respect of the Farm (clauses 8–13), the executors are directed to subdivide the property into eight lots. Upon subdivision, five of those lots are to be transferred to Sung, and one lot to each of Rocco, Gina, and Angelina. If this subdivision could not be effected, the executors are directed to sell the property and distribute the net proceeds of sale in the same proportions being five-eighths to Sung and one-eighth to each of Rocco, Gina, and Angelina;

2. Specific gifts (to a total of $40,000) are made. Diego’s granddaughters, Tania and Carla Miceli, receive $15,000 each (clause 14), and Diego's friend, Antonio Esposito, receives $10,000 (clause 15);

3. Sung was also bequeathed funds held in various Westpac bank accounts (approximately $492,000) (clause 16); Diego’s household possessions (clause 17) and the residue of the Estate (estimated at about $13,100) (clause 18).

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

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

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

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

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

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

116. The Will was accompanied by this statutory declaration:

“Statutory Declaration

OATHS ACT 1900, EIGHT SCHEDULE

I, Diego Condello, do solemnly and sincerely declare

That the dispositions made to my children; Rocco Condello, Gina Micelli [sic] and Angelina Palumbo, in my will (executed contemporaneously with this Statutory Declaration

Dated 31 October 2013) represent my true intentions.

In 1994 my first wife, Veneranda Condello, and I divorced. At that time I had a Block with 5 Units that was purchased jointly between me, Veneranda and my son Rocco. At the property Settlement, this property was given to Veneranda, Rocco and my daughter Angelina.

I also had a farm of 27 acres which was purchased jointly between me and Rocco. At the property settlement, this farm also went to Veneranda and Rocco. This property was worth $2,500,000 at the time that it was sold.

Since the divorce in 1994, my children have been living with their mother and have not contacted or visited me in the past 20 years.

I strongly believe that my will is reasonable, generous and my true intention to give away one block of my property (after subdivision) to my three children, Rocco, Gina and Angelina.”

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

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

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

Diego’s temperament

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

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

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

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

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

Legal principles — fact-finding and credit

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

“In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

“... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”

A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson, see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA’s par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities.”

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

“9 Where a claim is made against the estate of a deceased person and knowledge of the facts on which the claim is based is no longer available to the legal personal representative of the deceased, judicial experience requires a careful approach to fact-finding, although there are no special rules relating to the burden or to the standard of proof: “[I]n cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue”: Plunket v Bull (1915) 19 CLR 544 at 548–549 per Isaacs J. In Birmingham v Renfrew (1937) 57 CLR 666, which related to mutual wills, there were also expressions of caution: see per Latham CJ at 674 and Dixon J at 681–682. See too Grundel v The Registrar General (1990) BPR 97–340 at 11,219 per McLelland J. These observations do not establish any legal standard of proof differing from the ordinary civil standard relating to the balance of probabilities, and there is no legal requirement for corroborative evidence. See too in Re Cummins deceased, Cummins v Thompson [1972] 1 Ch 62 at 68–69.

10 Attention and scrutiny are concentrated on the plaintiff, the probability of the facts which he claims occurred and his credibility. There are many facts and circumstances in the plaintiff’s evidence which require scrutiny; many things which he said he did and many events which he says happened do not represent ordinary prudent behaviour of well-informed people acting carefully in their own interests. In many respects conduct of the testator as shown by the evidence could also lead to much inquiry, and the fact that Mr R. N. Day was not available to give evidence was not wholly a disadvantage for the presentation of the defendant’s case; if the claim had been brought while he was alive there was a great deal for him to explain. It would be wrong to scrutinise the plaintiff’s evidence on an assumption that the deceased always behaved prudently or reasonably or properly, or that any favourable assumptions about the defendant’s case are warranted by respect or for any other reason because he is now dead.”

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

“There is no corroboration of the plaintiff’s evidence of oral representations made to her by the deceased to the effect that she had or was to have any interest in the subject premises except as his licensee. Accordingly on its first basis, the plaintiff’s claim is essentially one against the estate of a deceased person based on alleged conversations between the plaintiff and the deceased of which the only evidence is that of the plaintiff. Generally speaking, in cases of that kind, by reason of the danger of estates of deceased persons being subjected to false or exaggerated claims in respect of matters of which the deceased has no opportunity to give his own account, the court will treat such evidence with considerable caution, if not suspicion, will scrutinise it with great care, and act on it only if convinced of its truth: see, for example, Plunkett v Bull (1915) 19 CLR 544 at 548–9; BC1590102; Birmingham v Renfrew (1937) 57 CLR 666 at 674 and 681–2; Re Garnett (1885) 31 Ch D 1 at 9 and 16; Re Hodgson (1885) 31 Ch D 177 at 183; and Rawlinson v Scholes (1898) 79 LT 350 at 351.”

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

“463 In approaching the task of fact finding, particularly where credit is a significant issue, the Court has applied ten principles.

464 First, at the forefront of the Court’s approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318–319:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

465 Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:

48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account:

●   the nature of the cause of action or defence;

●   the nature of the subject matter of the proceeding; and

●   the gravity of the matters alleged.

When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361–2).

466 Third, there is the statutory successor of the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the EA:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

467 Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.

468 Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties.

469 Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness’ evidence in its entirety. This approach was expressed by O’Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1:

118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions.

…

121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected.

470 Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings:

155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].

471 Eighth, disbelieving a witness that “X” was the case does not mean that “not X” has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 (citations omitted):

The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109.

472 Ninth, for reasons set out in Saravinovski (No 5) at [76] and following, the Court gave leave for certain of Chris’ affidavits to be relied upon, notwithstanding that his loss of mental capacity meant that he could not be cross-examined. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619:

111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5].

473 Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said:

187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations.”

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

The estoppel claim

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

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

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

The estoppel claim — the law

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

“Under that principle a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person’s land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances.”

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

“Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part.”

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

“27 Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641, 675; Thompson v Palmer (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation [Crabb v Arun District Council [1976] Ch 179, 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].

28 Although numerous attempts have been made to identify the various components of equitable estoppel, for present purposes, the matters which a plaintiff must establish to found an equitable estoppel may conveniently be summarised, in the present context, as follows:

· First, in relation to the plaintiff’s conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant’s property;

· Secondly, in relation to the defendant’s conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff’s potential detriment and that it could be fulfilled only by transfer of the defendant’s property, a diminution of the defendant’s rights or an increase in the defendant’s obligations;

· Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy.

[See generally, Waltons v Maher, 428–429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002), [17-105]].”

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

“… may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption.”

The estoppel claim — submissions

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

1. Rocco was induced by Diego to cease other employment and studies and to return to work on the Farm without pay, by promising Rocco that he would inherit the Farm and, later, Hoxton Park, if he continued to work on the Farm.

2. The Court should infer that it was not uncharacteristic of Diego to make such representations because Aldo and Gina both gave evidence of Diego similarly representing to Gina that he would leave the Farm to her if she moved into the Farm and looked after Diego as he aged.

3. Diego’s alleged representations were a material and real inducement to Rocco which were objectively likely to have had a significant effect upon Rocco’s decision-making (citing Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [67], [69], [71], [74]–[75] (“Sidhu”)). This was evinced by Rocco’s conduct in leaving his apprenticeship and discontinuing his technical studies in 1977 and in continuing to work on the Farm to the extent his health allowed until 1991.

4. Rocco relied on the representations to his detriment because he gave up the opportunity to train and pursue a career as an auto-electrician and to earn income from a career as an auto-electrician. A forensic accountant’s report was tendered without challenge as supporting evidence of his lost potential earnings. The report calculates earnings as an auto-electrician from 1 January 1977 to retirement age in January 2028. The assumptions underlying this report do not include his rheumatoid arthritis diagnosis or any of his other significant health concerns. Rocco accepted in cross-examination that by the middle of the 1980s he was probably not able to meet Diego’s expectations as to the work he (Rocco) was to perform, and that by 1994 he would not have been able to work as an auto electrician because of his illness and physical limitations.

5. Rocco would not have continued to work on the Farm, without pay, from 1977 to 1991 (14 years) if Diego had not made the promises which he made to Rocco (see Sidhu at [69]). He would not have continued to work for Diego out of a sense of familial duty or affection for his father.

6. The fact that Rocco exhibited concern and sought an assurance from Diego of his entitlement to the Farm in 1987 confirmed that Diego’s promises were material to Rocco’s willingness to continue working on the Farm.

7. It was unconscionable for the Estate to depart from Diego’s representations to Rocco.

8. The appropriate relief to satisfy Rocco’s equity was to devise the whole of the interest in the Farm to Rocco or, in the alternative, pay him the value of his expectation interest with deductions and allowances.

138. The defendants submitted:

1. The evidence as to the content of the representations alleged to have been made by Diego should not be accepted, or at least not accepted as to the alleged inducement contained in those representations. This was because:

1. Given the passage of time since the conversations occurred, Rocco’s memory of the conversations may not be entirely accurate and this was particularly so given that despite Rocco’s assurances to the Court that he had a very good memory, Rocco agreed that 25 years was a long time and that he could not remember certain things that happened that long ago.

2. The representations alleged lacked any promise or inducement referable to the future ownership of the Farm and were just requests of Rocco which were not sufficient to ground an estoppel.

3. The evidence of conversations was largely uncorroborated.

4. There were discrepancies between Rocco’s evidence of his physical ability to work and that of other witnesses’ evidence including Veneranda.

5. There were material omissions in Rocco’s evidence which were suspicious, for instance he had made no reference in his affidavit evidence to the Family Court proceedings or his acceptance in those proceedings that he did not have an interest in the Farm.

6. Rocco lacked candour as a witness as demonstrated by his failure to disclose aspects of his finances, specifically, his entertainment expenditure and withdrawal of large sums of cash from in and around The Star Casino between 5 May 2014 and 26 May 2015 which was inconsistent with his claim that his income did not meet his expenses.

2. Rocco’s conduct in continuing to work on the Farm after 1977 is not proof of the representations or Rocco’s reliance on the representations because, on Rocco’s own evidence, he had been working on the Farm since about age 10 without pay, well before the representations allegedly took place.

3. Even if the content of those representations was accepted entirely, the nature of the work that Rocco was required to perform is not clear and unequivocal and there was a serious doubt as to whether the work that Rocco did perform would have been sufficient to satisfy the equity.

4. It was clear that any representation made by Diego was accompanied by the condition that Rocco would continue working on the Farm (indefinitely), that the representation would be revocable if Rocco ceased to work on the Farm, and that Diego was not bound in equity where that condition was not fulfilled. Accordingly, given it was accepted Rocco stopped working on the Farm in 1991, equity would not compel the Estate to make good a representation in circumstances where the condition attached to that promise was not fully performed.

5. There were serious questions regarding the strength, reliability and credibility of Rocco’s evidence and a cautious approach should be taken to that evdience. Of particular concern was the way in which Rocco’s oral evidence of the representation conversations was given and that it was not until Rocco was directly questioned that a response on the question of the future ownership of the Farm was provided.

6. The defendants further submitted that because of the effect of the Family Court orders of 25 February 1994 relief was barred by way of an issue estoppel, res judicata, or Anshun estoppel.

The estoppel claim — resolution

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

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

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

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

“Q. In what language did you speak to your father?

A. WITNESS: Always in Calabrese dialect.

Q. You were reasonably fluent in that language?

A. WITNESS: Yeah.

Q. You gave evidence about certain--

HIS HONOUR

Q. You were born in Australia?

A. WITNESS: Yes.

MANTZIARIS

Q. Did you ever receive any formal schooling in Italian?

A. WITNESS: No.

Q. Is it fair to say that all the Italian language that you learnt was through your family?

A. WITNESS: Yes.

Q. Now, you gave evidence about--

A. WITNESS: And it was only mainly dialect, but I can speak proper Italian but I learnt that mainly from next, my next door neighbour.

Q. Where did your next door neighbour come from?

A. WITNESS: He came from the north of Italy.

Q. You gave evidence in your affidavits about certain conversations that you had with your father. In what language were those conversations?

A. WITNESS: In Calabrese dialect.

Q. Now, you gave evidence about a couple of these conversations, so I'll just go through them one by one. There was a conversation you had with your father about the time you left school. Do you recall that?

A. WITNESS: Yeah.

Q. What was said during that conversation, in the words — and when you answer this question, please tell the Court the words that your father said and the words that you said?

HIS HONOUR

Q. In the Calabrese dialect, in the dialect--

MANTZIARIS

Q. As they were said.

HIS HONOUR

Q. As they were said, and they will be interpreted by the interpreter.

A. WITNESS: My father wanted me to leave school to work on the farm. He would tell me..(foreign language)..

A. INTERPRETER: So he would, “Why are you going to school? How long are you going to go to school for? Why don't you just stay here and work with me?”

A. WITNESS: Yeah.

A. INTERPRETER: Actually not “Why wouldn't you”; just, “Stay here and work with me,” imperative.

A. WITNESS: Yes.

MANTZIARIS

Q. Did he say anything else about working with other people?

A. WITNESS: Yeah. I wanted to do an apprenticeship, auto electrician, and I actually went and worked for a guy for about three weeks. And my father kept telling me..(foreign language)..

A. INTERPRETER: So my father would say then, “Why are to going to work for others? Can't you see there's lots of work here? Why do you want to put money in other people's pockets for?”

Q. Then you say that you had another conversation with your father at about the time that you were working with Mr Scandarello. Do you recall that conversation?

A. WITNESS: Yeah, he wanted me to, to leave work.

Q. Now, what did your father say to you in Calabrese?

A. WITNESS: ..(foreign language)..

A. INTERPRETER: So, “Why are you going to work with others? Just stay here and work with me on the farm. Don't put money in other people's pockets.

Q. Did he say anything in relation to what would happen in the future?

A. WITNESS: He would, he would tell me ..(foreign language)..

A. INTERPRETER: “Stay here and work on the farm because one day this farm will be yours.”

Q. Now, you gave evidence that in 1987 your father sold 2 acres from the initial 3 acre block and you gave evidence about a conversation that you had with your father at that point. Do you recall that conversation?

A. WITNESS: Yes.

Q. Would you be able to please tell the Court, using the words that your father actually used and the words that you used, how that conversation went?

A. WITNESS: I questioned my father, I said to him ..(foreign language).. and he said to me--

Q. Sorry, could you just stop there for a moment.

A. INTERPRETER: My father said--

Q. Could that be translated?

A. INTERPRETER: I said to my father, “You promised me the farm and now you're selling it.”

Q. Then what was said next?

A. WITNESS: He told me ..(foreign language)..

A. INTERPRETER: I'm not selling it all, you will get what's left here and you will get what's at Hoxton Park.”

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

243   I make clear that in stating what is written above, I do not intend what I have described as “principles” to be elevated into rules of law. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion at the second stage to be constrained, by statements of principle found in dicta in other decisions. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.

244   In addition, in each case, a close consideration of the facts is necessary in order to determine whether the bases for a family provision order have been established. Every case is different and must be decided on its own facts. As Lindsay J said in Verzar v Verzar [2012], at [131]:

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]–[19].”

Rocco

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

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

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

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

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

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

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

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

“57. My future prospects are poor particularly with the hours I get a carer being reduced and with the probability that they will be reduced further. My physical condition will continue to deteriorate. I am being treated by specialist rheumatologist, Dr. David Spencer, at Westmead Medical Centre.

58. I would like to have sufficient funds available to me to purchase a three bedroom house. The house would have to be on one level with wheelchair access. I would need to build a Hydro Therapy Pool which I need for exercise otherwise my joints and muscles deteriorate rapidly…”

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

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

Gina

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

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

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

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

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

Sung

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

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

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

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

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

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

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

“20. Notwithstanding any other provision it is always intended that the residential dwelling at XXX Bossley Park, New South Wales shall always be particularly included in the land that is to be allocated to my wife Sung Soon Kim… and it is intended that my wife Sung Kim shall have exclusive and unrestricted possession and occupation of my said residential dwelling at XXX Bossley Park, New South Wales to the absolute exclusion of all other beneficiaries.”

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

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

Angelina

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

Resolution of Rocco’s family provision claim

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

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

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

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

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

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

222. Finally, the Estate is substantial.

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

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

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

1. Diego was Rocco’s father. For the first 30 years of his life Rocco endured harsh and demanding treatment at Diego’s hands.

2. Nothing which happened after Rocco left the Farm, in my view, diminished the responsibility that the community would feel Diego owed to a disabled son.

3. The Estate is substantial, even when the claims of other beneficiaries is taken into account.

4. Rocco has no financial resources or earning capacity and will have ongoing financial needs (especially when Veneranda is unable to care for him, whether through her own age induced incapacity or by death). The other claimants on Diego’s bounty are not in such straits. I repeat the observations in paragraphs [219] to [221] above.

5. I have already referred to Rocco’s physical disabilities, which are likely to deteriorate.

6. Rocco is now 57. While there is no evidence as to his life expectancy, especially given his disabilities, I nevertheless infer as a matter of ordinary experience that, based on their respective ages, it is likely that Rocco will outlive Veneranda.

7. Irrespective of whether it was induced by a representation or for any other reason, from the age of 10 and into his 20s, I am satisfied Rocco helped as much as he could on the Farm. While he received food and board, he was not paid and did not pursue his ambition to be an auto-electrician.

8. Diego has provided Rocco with an interest valued at $455,000.

9. The Will and the accompanying statutory declaration make Diego’s testamentary intentions clear. Insofar as those intentions are to make adequate provision for Sung, in my view that can still be done even if additional provision is made for Rocco.

10. Veneranda is providing housing, care and support for Rocco. The Court infers as a matter of ordinary human experience that, given her age, it is not realistic to expect her to continue to be able to do that for many more years.

11. There is nothing adverse to Rocco in terms of his own conduct towards Diego. On the contrary, as I have already observed, Rocco endured much at Diego’s hands.

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

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

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

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

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

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

Resolution of Gina’s family provision claim

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

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

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

“Q. You would agree with me, wouldn't you, that — first of all, finding $570 a week to pay towards your mortgage is not the easiest task to do?

No.

Q. You have to go without things in order to do that?

Yes.

Q. If you were to receive a sum of money from the estate that was to discharge that mortgage and free up $570.30 each week, that would make a huge difference to your life?

Yes.

Q. What kind of things would you be able to do if you had that extra $570?

Buy things that I don't have, do some renovations if I saved up the money for it.

Q. If his Honour was to order that kind of provision, is that something that would make you very happy?

As in to pay the loan off?

Q. To pay the loan off?

Yeah.

Q. Would make a substantial difference to your life?

Yes.

Q. You would be able to complete those renovations that you refer to in your affidavit?

Yes.”

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

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

Conclusion

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

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

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

**********

Decision last updated: 29 March 2018