In the matter of C&v Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd

Case •

[2025] NSWSC 857

•

04 August 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: In the matter of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd [2025] NSWSC 857
Hearing dates: 29 and 30 July 2025
Date of orders: 4 August 2025
Decision date: 04 August 2025
Jurisdiction:Equity - Corporations List
Before: Black J
Decision:

The parties to bring in agreed short minutes of order as to costs within 14 days, and, in the event of disagreement, their respective draft orders and submissions.

Catchwords:

CORPORATIONS — membership — register — rectification of register — where shares in two companies left to plaintiff under plaintiff’s mother’s Will — where first defendant, the executor of the Will, agreed to transfer the relevant shares to the plaintiff in accordance with the terms of the Will but subsequently failed to do so — where first defendant instead transferred the relevant shares to himself — where plaintiff did not raise a claim for the transfer of the relevant shares in other proceedings brought in 2018 — where defendants allege Anshun estoppel, abuse of process or laches — where no demonstrated prejudice arising from delay,

Legislation Cited:

- Conveyancing Act 1919 (NSW), s 66G

- Corporations Act 2001 (Cth), s 175

- Limitation Act 1969 (NSW)

Cases Cited:

- 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72

- Cappelleri v Cappelleri [2024] VSCA 173

- Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33

- Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118

- De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351

- Ekes v Commonwealth Bank of Australia [2014] NSWCA 336

- Gunns Ltd v Marr [2005] VSC 251

- Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

- Henderson v Henderson [1843] 67 ER 313; (1843) 3 Hare 100

- Icon Co (NSW) Pty Ltd v Owners — Strata Plan No 97315 [2022] NSWCA 114

- Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1; [2001] 1 All ER 481

- Maertin v Klaus Maertin Pty Ltd (2006) 57 ACSR 714; [2006] NSWSC 588

- Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

- Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62

- Re Estate of P Mirabella (dec’d) [2023] VSC 185

- Re Graziers Pastoral Pty Ltd; Re Windsor Livestock Holdings Pty Ltd; Re Windsor Livestock Pty Ltd [2021] NSWSC 1680

- Re Khoury Taxation Servies Pty Ltd [2025] NSWSC 568

- Re Mogul Stud Pty Ltd [2012] NSWSC 1639

- Re Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69

- Re Vaucluse 29 Pty Ltd [2023] NSWSC 631

- Redowood Pty Ltd v Link Market Services Pty Ltd (formerly known as ASX Perpetual Registrars Ltd) [2007] NSWCA 286

- Stokes v Toyne [2023] NSWCA 59

- UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45

- Young v Holmes [2013] NSWSC 580

Category:Principal judgment
Parties: Vittoria Marques (Plaintiff)
Mario Pizzolato (First Defendant)
Antonella Pizzolato (Second Defendant)
C&V Engineering Co Pty Ltd (Third Defendant)
Pizzolato Nominees Pty Ltd (Fourth Defendant)
Representation:

Counsel:
T Alexis SC/S Speirs (Plaintiff)
A d’Arville (Defendants)

Solicitors:
Di Girolamo Lawyers (Plaintiff)
HWL Ebsworth (Defendants)
File Number(s): 2024/247499

JUDGMENT

Nature of the application and affidavit evidence

  1. By Further Amended Originating Process filed in Court with leave on 29 July 2025, the Plaintiff, Ms Vittoria Marques (to whom I will refer, without any disrespect, as “Vittoria”) seeks an order under s 175 of the Corporations Act 2001 (Cth) (“Act”) that the share register of C&V Engineering Co Pty Ltd (“CVE”) be corrected to record the members of CVE as being Vittoria and the Defendants, Ms Antonella Pizzolato and Mr Mario Pizzolato (to whom I will refer, without any disrespect, as “Antonella” and “Mario”) holding 200 ordinary shares as tenants in common in equal shares. Vittoria also seeks an order under 175 of the Act that the share register of Pizzolato Nominees Pty Ltd (“PNP”) be corrected to record the members as Vittoria, Antonella and Mario as tenants in common in equal shares as to two ordinary shares, with Antonella and Mario also each holding an additional one ordinary share in PNP.

  2. The parties proceeded on the basis that, as recorded in records maintained by the Australian Securities & Investments Commission (“ASIC”), Mario now holds 200 ordinary shares in CVE (Ex J1, CB 967), which were previously held by the late Mrs Carmela Pizzolato (to whom I will refer, without any disrespect, as “Carmela”), who was the mother of Vittoria, Antonella, and Mario; Antonella holds one and Mario holds three ordinary shares in PNP, two of which were previously held by Carmela (Ex J1, CB 976–977). No transfer of the shares was produced by the Defendants, in response to a notice to produce, although minutes of a board meeting referring to such a transfer were produced. It is not necessary to decide whether the 200 ordinary shares in CVE or the two ordinary shares in PNP were validly transferred or transmitted to Mario from Carmela’s estate, in accordance with Pt 7.11 Div 2 of the Act and its requirements, as reviewed in Maertin v Klaus Maertin Pty Ltd (2006) 57 ACSR 714; [2006] NSWSC 588 at [20]ff and Re Khoury Taxation Servies Pty Ltd [2025] NSWSC 568 at [30]ff. I am content to adopt the common assumption made by the parties, where its correctness will make no difference to whether an order should now be made rectifying the share registers of the companies, and it is common ground between the parties that the orders sought by Vittoria should be made if the three defences now pressed by the Defendants are not established.

  3. It is also common ground that the Court has jurisdiction to make the orders sought by Vittoria under s 175 of the Act. I summarised the scope of that section in Re Mogul Stud Pty Ltd [2012] NSWSC 1639 at [7] as follows:

“… that section does not itself confer a power to create a register, but assumes that the Court already has such a power at general law: Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1966) 20 ACSR 553 14 ACLC 1089 at 1094. In the well known decision of Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51, Fullagar J pointed to the discretionary character of the power to order rectification of the register and to the fact that in equity warranty rectification would prima facie be established if a person’s name was wrongly included or omitted from the register; the same principle is plainly applicable where, rather than the person’s name being omitted, the number of shares attributed to that person is incorrectly recorded, so as to impose a disadvantage on that person or on other shareholders. The principles of rectification at general law are relevant, and those draw attention to where the position as recorded in a document reflects the common subjective intention of the parties: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [444] and following.”

  1. In Re Motasea Pty Ltd (2014) 97 ACSR 589; [2014] NSWSC 69 at [47], I noted that:

“Section 175 of the [Act] provides, relevantly, that a person aggrieved may apply to the court to have a register kept by a company corrected and, if the court orders that company to correct the register, it may also order that company to compensate a party to the application for loss or damage suffered and to lodge notice of the correction with ASIC. That section replaced s 212 of the Corporations Law and it confers a continuing power to correct the register where, for example, an entry is omitted from it: Bon McArthur Transport Pty Ltd (in liq) (recs & mgrs. Apptd) v Lange [2007] NSWSC 1371. That section operates in parallel to, and arguably assumes the existence of, the court’s equitable jurisdiction to rectify a register: Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51; Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 at 558–559. The authorities recognise that the applicant for rectification must show a personal equity that the court will protect; prima facie, such an equity is shown if a person’s name is wrongly omitted from the register; however, the court has a broad discretion whether to order the correction of the register of members and may decline to order rectification if there is some reason why that should not occur: Grant above at 51.”

  1. It is also common ground that the form of order that Vittoria now seeks is consistent with the position addressed, although arguably not finally determined, in De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 and in Re Estate of P Mirabella (dec’d) [2023] VSC 185 at [44]ff.

  2. For completeness, Vittoria did not seek an order rectifying the records maintained by ASIC in respect of the shareholdings in CVE and PNP, although such an order might have readily be made under s 1322 of the Act on the basis of the matters that were common ground and the findings that I have reached above: Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62 at [56]ff; Re Vaucluse 29 Pty Ltd [2023] NSWSC 631 at [21]; Cappelleri v Cappelleri [2024] VSCA 173 at [174]ff. It appears that there would be no need for any separate order in that regard, if Vittoria is otherwise successful, by reason of the companies’ obligations under s 175(3) of the Act.

Background facts, affidavit evidence and chronology

  1. There is significant common ground as to several of the background facts. It is common ground (Points of Claim (“POC”) [6]–[7]; Points of Defence (“POD”) [6]–[7]) that, by Carmela’s Will (“Will”) dated 19 May 1994, Mario was appointed the sole executor of Carmela’s estate and that estate was to be divided in equal shares between Vittoria, Mario, and Antonella. It is also common ground (POC [8]–[10]; POD [8]–[10]) that, on 27 June 2016, the Court granted probate of Carmela’s estate to Mario; that, as at the date of the grant of probate, Carmela held 200 ordinary shares in CVE and two ordinary shares in PNP; and that, to date, Mario has failed and refused to distribute Carmela’s estate, at least in respect of the ordinary shares in CEC and PNP, in accordance with grant of probate. I do not understand there to be any contest as to Vittoria’s entitlement to the relief sought, subject to three specific defences now pressed by the Defendants which I address below.

  2. Turning now to the affidavit evidence, by her affidavit dated 4 July 2024, Vittoria referred to the family history and to the grant of probate of Carmela’s estate. She addressed (Vittoria 4.7.24 [17]ff) the circumstances in which a dispute subsequently arose as to the value of a one-third share in a property situated in Concord, New South Wales (“Concord property”) which Carmela had left to her under the Will. She referred (Vittoria 4.7.24 [17]ff) to a conversation with Mario in April 2018. Her evidence is, and Mario denies, that she asserted her entitlement to a one-third share in a company that was developing a project in Mascot in that conversation. I prefer Vittoria’s evidence as to that conversation, where it is consistent with the fact that her solicitor advanced a claim to her interest in the shares in three relevant companies shortly after that conversation. Vittoria also addresses proceedings that she brought in 2018 (“2018 Proceedings”) against Mario and Antonella in relation to the Concord property and consent orders made by Darke J in those proceedings in September 2019 (Vittoria 4.7.24 [21]–[24]) which ultimately brought about the sale of Vittoria’s interest in the Concord property to Mario and Antonella.

  3. Vittoria refers to subsequent correspondence sent by her solicitors addressing the fact that her interest in the shares in the companies was not transferred to her prior to the commencement of these proceedings in July 2024. I will address that correspondence in the chronology set out below. Vittoria also refers (Vittoria 4.7.24 [38]ff) to a company extract for CVE which records Mario as now holding 200 ordinary shares in CVE, although it is not apparent how that position came about, and she notes that CVE owns property at Mascot and in Nelson Bay. Vittoria also refers (Vittoria 4.7.24 [38]ff) to a company extract for PNP which records that Mario owns three ordinary shares and Antonella owns one ordinary share in PNP, indicating that Mario (at least purportedly) acquired the two ordinary shares owned by Carmela, and notes that PNP owns properties at Croydon Park and Concord.

  4. Vittoria was cross-examined and was a cooperative and apparently honest witness, who readily made concessions sought by Mr d’Arville, who appears for the Defendants, in cross-examination. She acknowledged (T29) that she now did not seek relief in these proceedings in respect of shares in a third company, C&V Engineering Services Pty Ltd (“Services”), because that company does not hold assets which she wishes to pursue. She also accepted (T29), presumably by reference to the information now known to her, that she did not intend to bring proceedings in respect of the shares in that company at a later date. She also acknowledged (T29) that she had changed her mind in the period since April 2018 as to the scope of her claim, that her solicitor sought to have shares in all three companies transferred to her at that time, and that she has subsequently changed her mind as to which shares she sought to have transferred to her.

  5. Vittoria denied (T30) that she was incorrect in her recollection of the conversation with Mario in April 2018 and I prefer her evidence of that conversation to Mario’s evidence of the conversation having regard to the contemporaneous correspondence to which I referred above. Mr d’Arville cross-examined Vittoria (T33) to seek to establish that, between the confirmation given by Mario’s solicitors that he would transfer the relevant shares to Vittoria and the commencement of the 2018 Proceedings, Mario had not transferred the shares to her and, implicitly, that she should have disbelieved or disregarded his solicitor’s confirmation that he would do so. I do not accept that implication for the reasons noted below. Mr d’Arville also put to Vittoria (T36–37) that she did not ask the Court to remove Mario as a trustee in the earlier proceedings and she responded that he had previously agreed to transfer the shares, so she did not seek that relief.

  6. Vittoria acknowledged (T38) that it was clear to her by the end of November 2018 that Mario was not intending to transfer the shares to her. She acknowledged that it was open to her in the 2018 Proceedings to ask the Court to require Mario to transfer the shares to her. She denied that she was only then interested in obtaining her one-third interest in the Concord property and I accept that denial given the contemporaneous correspondence from her solicitors indicating her position. Vittoria also acknowledged that she knew, where Mario was not intending to transfer the shares to her, that she needed to force him to do so and she acknowledged that she chose not to do so in the 2018 Proceedings that she commenced in November 2018. She denied (T38) that she chose not to do so because she was only interested in obtaining her one-third interest in the Concord property and I accept that denial. She also accepted (T39) that it would have been “easier and more efficient” had she sought to require Mario to provide the shares to her in the 2018 Proceedings, and that matter is plain enough with hindsight. Vittoria also acknowledged, possibly too readily, that it was unreasonable for her not to have done so (T39). I do not accept that proposition for the reasons noted below, which include that Vittoria and her legal advisers could not reasonably have assumed that, because she did not subjectively believe that Mario would do what his solicitors had twice confirmed he would do, after a delay of about four months since that confirmation was given, a Court would reach the same view. Vittoria denied (T43) that the commencement of the 2018 Proceedings, and her not pursuing her claims in respect of those shares in the proceedings, indicated to Mario that she did not wish to pursue claims in respect of those shares. I accept that evidence, given the contemporaneous correspondence which had asserted her claims in respect of those shares, and Mario’s confirmation that he would transfer the shares to her, that course contained no such representation.

  7. In re-examination, Vittoria explained (T45) that she did not pursue a claim to the shares in Services because it was a company in which Mario and Antonella were developing certain land (T45); that she did not seek orders about the shares in the 2018 Proceedings because Mario had previously agreed to transfer them to her on three occasions; and the Summons in the 2018 Proceedings was filed on the advice of her solicitors (T45).

  8. The Defendants initially read Antonella’s affidavit dated 28 March 2025, although significant parts of that affidavit related to their abandoned estoppel defence and to unpleaded factual allegations and were not admitted on that basis. Antonella was initially required for cross-examination but the Defendants withdrew Antonella’s affidavit with Vittoria’s consent, after parts of it were not admitted, and she was not cross-examined on that basis.

  9. The Defendants also read Mario’s affidavit dated 28 March 2025, although significant parts of that affidavit also related to their abandoned estoppel defence and to unpleaded factual allegations and were not admitted on that basis. Mario is presently in ill-health and, by agreement, was not required for cross-examination. Mario’s evidence seeks to impugn Vittoria’s relationship with her mother and father; however, nothing turns on that evidence where Carmela left a third interest in her estate to Vittoria, and Mario neither denies nor seeks to justify his failure to perform his duties as executor in respect of the distribution of Vittoria’s share in the estate to her.

  10. Mario’s evidence (Mario 28.3.25 [20]) is that, at the meeting in April 2018 to which I referred above, Vittoria said that all she wanted was her share in the Concord property, she wanted no part of the Mascot development because it was too risky, and that all she wanted was for the Concord property to be sold so she could get her one-third share. As I noted above, I prefer Vittoria’s evidence of that conversation, where Mario’s account of it is inconsistent with the fact that, immediately after it occurred, Vittoria’s solicitor pressed her entitlement to the shares in the relevant companies.

  11. Mario also refers (Mario 28.3.25 [24]–[26]) to correspondence exchanged prior to the commencement of the 2018 Proceedings, and during those proceedings, to which I refer below. Mario also refers (Mario 28.3.25 [27]) to a conversation on 21 March 2020 in which Antonella told him of a conversation with Vittoria, in which Vittoria had told Antonella that she did not want the companies’ shares. I admitted that conversation, over objection, where it was first-hand hearsay where Antonella’s evidence would be read, but her affidavit has now been withdrawn. Although the conversation between Mario and Antonella remains in evidence, I give limited weight to it where no evidence is now led by Antonella of the conversation with Vittoria on which it depends.

  12. By her affidavit in reply dated 14 May 2025, Vittoria responded to aspects of Mario’s evidence, and pointed (Vittoria 14.5.25 [11]) to a letter dated 22 June 2018 where Mario’s solicitors had confirmed that Mario would transfer to her the shares in CVE and PNP and a letter dated 4 July 2018 where Mario’s solicitors confirmed the shares would be transferred “within the next few days”. Her evidence (Vittoria 14.5.25 [12]) was that:

“At that time, I understood that the shares would be transferred to me in accordance with the letters from [Mario’s solicitors]. When I instructed [Vittoria’s solicitors] to commence [the 2018] proceedings for the sale of the Concord Property, I did not think the transfer of the shares to me was in dispute. I understood at the time that Mario had already agreed to transfer the shares to me.”

  1. Vittoria also there responded to Antonella’s evidence, but it is not necessary to address that response where Antonella’s evidence was withdrawn.

  2. Turning now to the chronology of events, on 27 June 2016, it appears to be common ground that Carmela died on 15 November 2015 and, at the date of her death, she owned the Concord property, the 200 ordinary shares in CVE, the two ordinary shares in PNP, and shares in Services. Mario was subsequently granted probate of Carmela’s Will (Ex J1, CB 408). Clause 3(b) of the Will relevantly provided that Carmela gave the whole of her estate in equal shares to her children, where her husband had predeceased her (Ex J1, CB 409). The inventory of property attached to the grant of probate (Ex J1, CB 411) recorded that Carmela held 200 ordinary fully paid shares in CVE, which were valued at $200 and did not refer to her shareholding of two shares in PNP.

  3. By letter dated 20 September 2016 (Ex J1, CB 413), the solicitors acting in respect of the estate advised Mario, Antonella, and Vittoria that their work in connection with the matter was complete and that the main asset in the estate, the Concord property, had been transferred into their names as tenants in common. That letter noted matters which the solicitors expected the family accountants to attend to, including, relevantly, the 200 shares in CVE owned by Carmela, which the solicitors observed “should now be transmitted to the three of you jointly”, or to single owners if Vittoria was in agreement to that course. That letter also referred to the four shares in PNP, as to which Mario and Antonella held one share each and Carmela had two shares and noted that two shares held by Carmela should be transmitted to each of the three children jointly. As will emerge below, Mario, as executor of the estate, did not implement that advice.

  4. On 14 March 2018, emails were exchanged between a solicitor acting for National Australia Bank, a solicitor acting for Mario, or possibly for the companies and Mario, in which Mario advised that “Carmela has been removed from the companies” (Ex J1, CB 490). An attached company search for CVE recorded a decrease in Carmela’s shares in CVE from 200 to nil and that Mario now held 200 ordinary shares in CVE, and that his name had been entered on the share register on 12 March 2018 (Ex J1, CB 493), and an attached company search for PNP referred to a decrease in Carmela’s shares in PNP from two shares to nil shares and that Mario now held three ordinary shares in PNP (Ex J1, CB 495).

  5. By letter dated 17 April 2018 (Ex J1, CB 496), about the time of the disputed conversation referred to in Mario’s and Vittoria’s affidavits which I addressed above, Vittoria’s solicitor wrote to Mario noting that, relevantly, 200 shares in CVE and two shares in PNP were owned by Carmela at the date of her death and noting the (purported) transfer of those shares to Mario as recorded in ASIC’s records. That letter requested financial statements for the companies and the memoranda and articles of association, constitution or founding documents for the companies. That letter also observed that:

“While Vittoria is hopeful of resolving the estate administration matters on an amicable basis, without the necessity for any legal proceedings, in the absence of your cooperation she will take whatever steps she has to, to protect and realise her entitlements as a beneficiary”.

  1. By letter dated 1 June 2018 (Ex J1, CB 500), the solicitors acting for Mario indicated they would write further concerning these documents after they had reviewed them and confirmed that Mario also hoped to resolve the administration without the necessity for legal proceedings.

  2. By letter dated 4 June 2014 (Ex J1, CB 503), Vittoria’s solicitors noted that the letter from Mario’s solicitors had not addressed the transfer of the shares held by Carmela into Mario’s sole name instead of to the three beneficiaries of the estate and foreshadowed the commencement of proceedings seeking orders for Mario to be removed as executor and replaced with an independent trustee, if the issues between the parties were not expeditiously resolved.

  3. Further correspondence followed and, by letter dated 22 June 2018 (Ex J1, CB 509), Mario’s solicitor advised that CVE was the trustee of the “Pizzolato Settlement”; that Carmela held 200 shares in CVE and Mario would transfer to Vittoria her one-third interest in those shares; and that Carmela held two shares in PNP and Mario would transfer one-third of those shares to Vittoria. He did not subsequently do so.

  4. By letter dated 2 July 2018 (Ex J1, CB 517), Vittoria’s solicitors addressed several issues including the position as to the Concord property; advised Mario’s solicitors that Mario had “48 hours” in which to transfer Vittoria’s one-third interest in the shares to her; enclosed a Draft Summons which included Carmela's estate as the third defendant and provided for the removal of Mario as trustee under the Will; and stated that:

“If these measures are not remedied by close of business, Friday 8 July 2018, we are instructed to commence proceedings seeking the removal of your client as trustee and an order pursuant to section 66G of the Conveyancing Act for the sale of the Concorde property without further notice to your client. We enclose a copy of the draft Summons we intend to file in the event that matters raised herein are not resolved.”

  1. By letter dated 4 July 2018 (Ex J1, CB 526), Mario’s solicitors responded, inter alia, that:

“[Mario] has instructed his accountants to prepare appropriate share transfers in respect of each of the three companies nominated by you. We anticipate being in a position to forward to you copies of the transfer forms signed by our client within the next few days.”

  1. By letter dated 6 July 2018 (Ex J1, CB 529), Vittoria’s solicitors wrote to Mario’s solicitors addressing the position in respect of, inter alia, the Concord property and the shares in the companies, indicating their expectation, apparently following the letter noted above, that they would be provided with share transfers for Vittoria’s one-third interest in each of the companies.

  2. By letter dated 11 July 2025 (Ex J1, CB 532), Vittoria’s solicitors again addressed these matters, apparently assuming that Mario would do what his solicitors had indicated he would do, and observing that:

“In circumstances that [Mario] has acknowledged and agreed to transfer the shares in the abovementioned companies to [Vittoria] in accordance with the Will, we trust there will be no issue in providing the requested documents. We also await conformation that the shares haver in fact been transferred. Please provide that documentation immediately.”

  1. Further correspondence continued in respect of the Concord property. By Summons filed on 30 November 2018 (Ex J1, CB 540), Vittoria sought an order under s 66G of the Conveyancing Act 1919 (NSW) (“Conveyancing Act”) appointing a trustee for sale of the Concord property and associated orders, but did not seek orders in respect of shares in respect of the relevant companies. On 21 December 2018, that Summons was amended to seek the appointment of two trustees for sale of the Concord property (Ex J1, CB 563). It is important to note that, as Mr Alexis (with whom Mr Speirs appears for Vittoria) points out, this application did not relate to any non-performance of Mario’s duties as executor of the Will, where the Concord property had previously been transferred to Mario, Antonella and Vittoria as the beneficiaries of the Will, but to the question of whether an order for sale of the property should be made, as between its co-owners, under s 66G of the Conveyancing Act. The fact that no order for removal of Mario as executor was pressed was consistent with the fact that the proceedings did not raise any issue as to the performance of his obligations in that regard.

  2. By consent orders made on 5 September 2019 (Ex J1, CB 685), the 2018 Proceedings were resolved on terms that Mario and Antonella would purchase Vittoria’s interest in the Concord property under a specified mechanism. The sale of Vittoria’s interest in the Concord property to Mario and Antonella was completed on 21 April 2020, as confirmed by Vittoria’s solicitors in an advice to Vittoria dated 27 April 2020 (Ex J1, CB 742).

  3. Subsequently, by correspondence commencing 16 June 2020 (Ex J1, CB 745), Vittoria’s solicitors followed up as to the position in respect of the shares in CVE, noting that the shares in that company had not been transferred to the beneficiaries including Vittoria, but did not refer to the position in respect of PNP. Those solicitors again addressed the position in respect of the shares in both CVE and PNP by letter dated 28 June 2022 (Ex J1, CB 841) and in subsequent correspondence. Mario’s evidence is that he did not receive these letters until a further letter was sent directly to him on 1 November 2022, enclosing a copy of the 28 June 2022 letter. Nothing turns on that matter for the purposes of this application.

  4. In June 2023, Vittoria lodged caveats over several properties on the basis that she had an interest in land based on her claim to the shares in the companies. Unsurprisingly, that claim was contested and the caveats were subsequently withdrawn.

  5. The solicitors now acting for Vittoria were then retained and, by letter dated 25 July 2023 (Ex J1, CB 847), they again wrote to Mario, apparently assuming that he had effectively transferred the 200 shares in CVE and the two shares previously held by Carmela in PNP to himself on or about 12 March 2018, on the basis of the ASIC records referring to his now holding those shares. That letter demanded the transfer of the relevant shares to Vittoria in accordance with Carmela’s Will and Mario’s obligations as her executor within 14 days and again threatened the commencement of proceedings. A copy of that letter was also sent to the solicitors acting for PNP and CVE in respect of the dispute concerning the caveats over the relevant properties.

  6. By letter dated 14 September 2023 (Ex J1, CB 869), Mario’s solicitors contended that Vittoria was aware of the fact that the shareholdings in the estate were part of Carmela’s estate and “expressed no desire to own and made no claim in respect of any asset of Carmela, other than the Concord property”. That proposition was plainly not correct, where there had previously been lengthy correspondence from Vittoria’s solicitors asserting her entitlement to the shares in the relevant companies; and it was also not to the point, where Mario’s obligation as executor was to transfer the shares to the beneficiaries of Carmela’s estate and that did not depend on Vittoria expressing any desire to own, or making any claim in respect of, those shares. Mario’s solicitors also asserted a defence arising from the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”) which is pressed in these proceedings. The solicitors acting for Vittoria took issue with those matters by letter dated 13 November 2023 (Ex J1, CB 872) and these proceedings were subsequently commenced, after a further delay, on 5 July 2024.

Anshun estoppel

  1. By their Points of Defence, the Defendants originally raised, but now do not press, a defence under the Limitation Act 1969 (NSW) and a defence in respect of estoppel. The Defendants now plead (POD [15]–[22]) a defence of Anshun estoppel, arising from the 2018 Proceedings and Vittoria responds (Reply [2]) that the 2018 Proceedings related solely to the sale of a particular property pursuant to s 66G of the Conveyancing Act and did not relate to Carmela’s estate more generally.

  2. The concept of Anshun estoppel may be traced back at least to Henderson v Henderson [1843] 67 ER 313; (1843) 3 Hare 100 (“Henderson”), where Sir James Wigram VC observed at 319 that:

“where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

  1. In Anshun at 602–603, Gibbs CJ, Mason and Aickin JJ observed, in dealing with a defence rather than a plaintiff’s claim, that:

“… there will be no estoppel unless it appears that the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to have relied on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiffs’ claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.

In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of a particular issue, motives extraneous to the actual litigation, to mention but a few...”

  1. Their Honours also noted the importance of the question whether the prosecution of further proceedings may give rise to conflicting judgments, and the significance of that matter has been noted in later decisions: Redowood Pty Ltd v Link Market Services Pty Ltd (formerly known as ASX Perpetual Registrars Ltd) [2007] NSWCA 286; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [83], where McColl JA also observed at [81] that there will be an Anshun estoppel if it appears that “the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”

  2. Mr Alexis also draws attention to the observations of Allsop P (as his Honour then was) in Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3]–[4] that:

“The question of unreasonableness is derived significantly from the matter being so relevant to the subject matter of the first proceeding. There are at least two related assessments that have to be made: was the matter so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding? Whilst it is necessary to eschew language of abuse of process, the character of the assessments is such as to make relevant to a point what Lord Bingham of Cornhill said in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31:

It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. [emphasis in original]

Leaving to one side his Lordship’s reference to “abusive” and “misusing or abusing the process of the court”, what is of assistance from what he said is the recognition that the assessment is not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern litigation.

One fundamental error in the approach of the respondent was to build on the proposition that because the matter could have been raised in the first proceeding to draw a conclusion, it should have been. That mechanistic approach was what Lord Bingham was rejecting in the above passage from Johnson v Gore Wood. It is also what Gibbs CJ, Mason J and Aickin J found objectionable in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. In that case at 590, Lord Kilbrandon spoke of the principle as “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings” (emphasis added). This way of putting it overstated the principle. The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.”

  1. The applicable principles were also reviewed by Bathurst CJ in Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 at [129], where the Chief Justice noted that this species of estoppel derives from the observation of Wigram VC in Henderson [1843] 67 ER 313 at 319, as approved in Anshun at 598, that:

“… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but with was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

  1. In Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 at [4]ff, McColl JA in turn observed that:

“… the test is one of reasonableness. There will be no estoppel unless it appears that the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.

Thus Anshun estoppel introduces “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings.” As Allsop P said in Champerslife Pty Ltd v Manojlovski, this entails “at least two related assessments … was the matter so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding?” (emphasis in original).

In undertaking the evaluative exercise, it is relevant to bear in mind that Anshun estoppel, like res judicata and issue estoppel, finds its roots in the policy of the common law favouring the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The “underlying public interest is … that there should be finality in litigation and that a party should not be twice vexed in the same matter.” Nevertheless, a “strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form.” [citations omitted]

  1. In Stokes v Toyne [2023] NSWCA 59 at [3] (“Stokes”), Ward P in turn observed that:

“… as has been made clear in the authorities cited by Adamson JA, the test for Anshun estoppel is fundamentally one of reasonableness, namely whether the subject matter of the subsequent proceeding … is “so connected” with the subject matter of the earlier proceeding as to make it unreasonable for [the plaintiff] not to have raised the claim in the earlier proceeding. Unreasonableness for that purpose is thus to be considered in light of the circumstances that existed at the time of the earlier … proceedings.”

  1. In opening submissions, Mr d’Arville submits that:

“Vittoria is estopped from bringing her claim because she could (and should) have made such a claim in her November 2018 proceedings. Her attempt to belatedly press the claim to the shares that she previously abandoned is precluded by the principles in [Anshun] …”

  1. He refers to the case law and then submits that:

“The present claim is inherently bound up with Vittoria’s 2018 proceedings:

(a)   The 2018 proceedings related to the property which was the subject of the will, being the Concord [p]roperty;

(b)   Prior to those proceedings having been filed, Vittoria had made numerous complaints about various other aspects of the [Concord] property which was the subject of the [W]ill, including the shares in the companies; and

(c)   The draft Summons which Vittoria’s solicitors served prior to commencing the 2018 proceedings including a prayer for relief to remove Mario as trustee, which was based, among other things, on Mario’s failure to transfer the shares to her.

For those reasons, it was open to Vittoria to include her claims to the shares in the relevant companies under the Will in the 2018 proceedings. Yet she chose not to pursue those claims.

It was unreasonable for her not to have included such a claim. It meant that Mario (and Antonella) proceeded on the basis that she did not wish to make such a claim or to be involved with the companies.

For those reasons, to the extent that Vittoria seeks, by these proceedings, to effect a transfer of the shares into her name, she is estopped from doing so.”

  1. I should here note that I do not accept the characterisation, in this submission, of the dispute concerning the shares in the companies as an aspect of the dispute as to the Concord property. They were plainly separate issues, as is evidence by the fact that, at the time the 2018 Proceedings were concerned, Mario had purportedly addressed the former by confirming that he would transfer Vittoria’s interest in the shares to her, but the dispute as to whether the Concord property should be sold or Vittoria’s interest in it transferred to Mario and Antonella, and on what basis, was unresolved. The evidence does not establish that Mario (and Antonella) proceeded on the basis that Vittoria did not wish to make a claim to her shares in the companies, where her solicitors had repeatedly pressed that claim; Mario had then confirmed he would transfer the shares to her, implicitly so as to resolve that claim; and the Defendants’ wider estoppel case was abandoned and Antonella did not give evidence.

  2. In opening submissions, Mr Alexis also refers to the case law and responds that it was not unreasonable for Vittoria not to pursue her claim to rectification of the companies’ share registers in the 2018 Proceedings, on the basis that:

“The documentary evidence shows that Vittoria was only in dispute with Mario and Antonella about the value of her share in the [Concord] property when the [2018] proceedings were commenced in 2018. Eventually, that case settled by Consent Orders on 5 September 2019, and Vittoria was paid value for the transfer of her share in the [Concord] property on 27 April 2020.

There was nothing unreasonable about those proceedings relating only to Vittoria’s share in the [Concord] property, as that was the only issue in dispute at the time. Indeed, Vittoria had no reason to think that Mario would not transfer her interest in the shares in CVE and PN[P] to her. So much is clear from the correspondence from Mario’s own solicitors.”

  1. In closing submissions, Mr d’Arville in turn refers to the chronology of events, which I have addressed above, and points to the several occasions on which Vittoria’s solicitors had pressed for the transfer of the shares to her and threatened the commencement of proceedings, prior to the commencement of the 2018 Proceedings. He rightly points out that, in the four month period between 2 August 2018 and Vittoria’s commencement of the 2018 Proceedings on 30 November 2018, there was no further correspondence as to the transfer of the shares and Mario did not transfer the shares to her, as his solicitors had previously indicated he would do. Mario also did not transfer those shares while those proceedings were continuing, until the consent orders were made in September 2019.

  2. In closing, Mr d’Arville also submits that:

“Vittoria’s claim to the various company shares was inherently bound up with the subject matter of the 2018 proceedings. Both the shares and the Concord [p]roperty were assets of her mother’s estate which she contended were due to her. In the correspondence set out above, the matters had been dealt with together and the proceedings which her solicitors threatened in July 2018 sought the removal of Mario as executor based (among other things) on his failure to transfer the shares.

The fact that the two claims were so intimately bound together meant that it was not just open to Vittoria, but incumbent upon her, to include her claims to the shares in the 2018 proceedings. Yet she chose not to do so.”

I do not accept that submission, for the reasons noted below.

  1. Mr d’Arville also submits, with reference to Vittoria’s cross-examination which I have noted above, that:

“… the unreasonableness of that course was confirmed by Vittoria’s own evidence. Vittoria agreed that she could have sought orders in the [2018 proceedings] seeking orders to force Mario to transfer the shares. She agreed that course would have been “an easier and more efficient course for everyone”, because all matters would have been resolved in one set of proceedings. She agreed that it was unreasonable for her to not to have sought those orders in the previous proceedings.

The question of unreasonableness is a matter for the Court. However, the fact that Vittoria herself now recognises that unreasonableness is a very strong indicator that she should have raised any issue in respect of the shares in the [2018 Proceedings].”

  1. I also do not accept that submission. In cross-examination, it seemed to me that Vittoria was likely addressing the position as it appears now and, even if she was directing her attention to the position as at November 2018 when she commenced the 2018 Proceedings, hindsight would likely have intruded. It is now no doubt apparent, six years after Mario’s unperformed commitment to transfer the shares to her and after further proceedings have been necessary, that it may have been “easier and more efficient” to raise the matter in the 2018 Proceedings. However, recognising (as Mr d’Arville fairly does) that this is a question for the Court and not a lay witness, I explain below why I cannot conclude that Vittoria or her advisers should (although they possibly could) have taken that view in November 2018, or while the 2018 Proceedings continued and any possibility of amending them to extend their scope was open.

  2. I am not persuaded that a case for Anshun estoppel is established here, for several reasons. As I have noted above, the case law has recognised that there may be good reason to litigate an issue in one proceeding, while reserving the prospect of litigating another issue in other proceedings, including expense and other reasons, and the question is whether a party should, rather than could, have raised the matter in earlier proceedings. Here, the issue as to the sale of the Concord property was a discrete issue between the co-owners of that property, which did not raise any question as to any prior non-performance of Mario’s duties as executor under the Will (since the Concord property had already been transferred to the beneficiaries under the Will) and could efficiently be resolved in narrow proceedings in the Court’s Real Property List. There was, objectively, a real benefit to all parties in maintaining those proceedings in that narrow form to facilitate their just, quick and cheap resolution, which was ultimately achieved through a settlement. The question of rectification of the companies’ share registers would raise different and wider issues, including questions of non-compliance with Mario’s duties as executor.

  3. Second, notwithstanding Vittoria’s concessions in cross-examination as to her subjective belief that Mario would not transfer the shares without being required to do so, she and her legal advisers could not reasonably have assumed in November 2018 that a four months’ delay would be sufficient to persuade the Court that Mario did not then intend to comply with a serious commitment conveyed by his solicitors on his behalf. It was not objectively unreasonable for Vittoria and her legal representatives to proceed on the basis that, where Mario’s solicitors had confirmed that he would transfer the shares to her, she should not disregard that confirmation or treat it as self-evidently false and prematurely seek orders rectifying the register in the 2018 Proceedings. Objectively, if Victoria had sought an order for rectification of the share registers when she commenced the 2018 Proceedings, there was a substantial risk that Mario could have responded that her doing so was unnecessary and inappropriate, because there was no dispute as to that matter where he had twice confirmed that he would transfer the shares to her. While the risk of that response likely declined as Mario’s delay in transferring the shares continued into late 2019, a subsequent amendment of the 2018 Proceedings to introduce that issue would likely have delayed their resolution, increased their costs and raised the risk of interlocutory disputes as to whether, for example, the proceedings should then remain in the Real Property List or be transferred to the Corporations List.

  4. Third, in determining whether an Anshun estoppel is established, and whether the Court should dismiss these proceedings on that basis, I should also have regard to the fact that there is a strong public interest in holding the executor of an estate to his or her obligations, and not readily permitting him or her to appropriate the estate’s property.

  5. For all these reasons, the Defendants defence in reliance on Anshun estoppel is not established.

Abuse of process

  1. The Defendants also plead (POD [23]–[24]) a defence relying on abuse of process and Vittoria again responds (Reply [3]) that the 2018 Proceedings related solely to the sale of a particular property pursuant to s 66G of the Conveyancing Act and did not relate to Carmela’s estate more generally.

  2. In UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 at [59], the plurality observed, in determining whether overlapping subsequent proceedings were an abuse of process, that:

“For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation … is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys.”

  1. I pause to note that these proceedings and the 2018 Proceedings arise out of the same Will and between the same family members, but they are not then one dispute, because the latter related to the sale of a property, after it had been transferred to the persons entitled to it under the Will, where this dispute relates to Mario’s quite different failure to transfer shares to Vittoria as required by the Will. Gageler J (as his Honour then was) also there observed (at [102]–[103]) that the mere fact that a matter could have been raised in earlier proceedings does not mean that it should have been raised; and (at [110]) that, citing Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] AC 1; [2001] 1 All ER 481, the Court should adopt “… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question …”.

  2. That approach was also adopted by Ward P in Stokes at [6], and Adamson JA also there observed at [79] that “[t]he doctrine of abuse of process is inherently broader and more flexible than res judicata, issue estoppel or Anshun estoppel and is capable of applying in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.” Simpson AJA in turn observed at [133]–[134] that:

“An important distinction between a claim for a stay of proceedings by reason of “Anshun estoppel” and a claim for a stay by reason of abuse of process lies in timing. The claim for a stay by reason of “Anshun estoppel” must necessarily be determined by (at the latest) reference to circumstances that pertained at the time of the proceeding in which, it is asserted, a separate and subsequent claim should also have been pursued. A claim for a stay of proceedings by reason of abuse of process is to be determined by reference to circumstances existing, at the earliest, at the time of commencement of the proceeding sought to be stayed.

Although there may, at times, be some overlap between “Anshun estoppel” and abuse of process, the two are independent and separate. A claim for a stay by reason of abuse of process takes into account a broader range of factors, which may extend beyond those that existed at the time of commencement of the proceeding. Abuse of process is “…inherently broader and more flexible than estoppel”: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] (French CJ, Bell, Gageler and Keane JJ) (Tomlinson). Their Honours continued:

Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment of the system of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.”

  1. Mr d’Arville fairly accepted that, if the defence in Anshun estoppel was not established here, then the defence of abuse of process would also not be established and that is sufficient to have the result that this defence also fails.

Delay

  1. The Defendants also plead (POD [30]) a defence relying on delay and Vittoria responds (Reply [7]), inter alia, that Mario failed properly to administer Carmela’s estate and has endeavoured to avoid properly administering the estate.

  2. In opening submissions, Mr d’Arville submits that:

“Vittoria’s delay in bringing these proceedings is a further reason that this Court should refuse to grant relief either by reason of laches or because it is a discretionary reason that this Court would refuse to grant relief pursuant to section 175 of the Act.”

  1. Mr d’Arville also submits that:

“The Court’s power to correct the register pursuant to section 175 operates in parallel to the Court’s equitable jurisdiction to do so and the applicant for correction of the register must demonstrate a “personal equity that the court will protect” …

Equitable defences are relevant to the Court assessing whether to make an order under section 175 …

The relevant equitable defence here is that of laches. That defence arises where by reason of the plaintiff’s inaction (or “standing by”), with knowledge over a substantial period of time, there has been an unreasonable delay in instituting proceedings and that delay has brought about prejudice: Orr v Ford [1989] HCA 4; 167 CLR 316 at [12].

Since the time that Mario did not transfer the shares to her in 2018, Vittoria stood by for over six years prior to commencing these proceedings. Vittoria could have made an application to remove Mario as trustee (which her 2018 draft Summons envisaged) or a different form of application in the general equity list to bring about a transfer of the shares. But no such application has ever been brought either in 2018 or at any time to date.

Vittoria’s delay has meant that Antonella and Mario have taken on the significant burdens associated with running the relevant companies (including providing personal guarantees to financiers and contributing to the operations of the companies) without asking Vittoria to do the same. Vittoria seeks to take the benefit of her shareholding without sharing in those burdens. That is a matter of prejudice to the defendants.

Whatever conclusion the Court comes to in respect of prejudice suffered by the [D]efendants, for the purpose of section 175 of the Act, the delay alone is a reason that the Court would decline to order a correction of the register. Proceedings for the correction of a share register “should be taken promptly on discovery of the matter complained of” (183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72; 376 FLR 150 at [137]).

Vittoria’s delay, along with the prejudice to the [D]efendants which arises by reason of that delay is a further reason that the Court would not grant the relief (to correct the share register) which Vittoria now seeks.”

  1. I should pause here to observe that I accept that equitable considerations are relevant to the grant of the relief sought, and I will address the Defendants on laches below. I recognise the long delay in the commencement of these proceedings, from the date of the last unperformed commitment by Mario to transfer the shares to Vittoria, on 4 July 2018, part of which was occupied by the 2018 Proceedings and the resolution of the position as to the Concord property by April 2020. Importantly, it has not been established that Mario or Antonella have suffered the asserted detriment arising from “burdens” in running the companies or the provision of guarantees to financiers or in respect of the operation of the companies. The Defendants did not here seek to identify any material facts relating to any detriment that they suffered by delay in their POD, either at the time that it was filed, or by any attempt to amend the POD after I declined to admit evidence that had no apparent relevance other than, possibly, to establishing an unpleaded case of uncertain character. I recognise that a Points of Defence, like an Amended Commercial List Cross-Claim Statement, is not, strictly, a pleading: Icon Co (NSW) Pty Ltd v Owners — Strata Plan No 97315 [2022] NSWCA 114 at [12]. However, it performs the same functions as a pleading in allowing procedural fairness to the other party to the proceedings and identifying the issues to be decided by the Court: Gunns Ltd v Marr [2005] VSC 251 at [57]; Young v Holmes [2013] NSWSC 580 at [82]; Re Graziers Pastoral Pty Ltd; Re Windsor Livestock Holdings Pty Ltd; Re Windsor Livestock Pty Ltd [2021] NSWSC 1680 at [51]. The Defendants’ failure to identify the factual basis of any such detriment was significant here, both to the admission of evidence and to the ultimate outcome, because it would have deprived Vittoria of procedural fairness and did deprive the Court of identification of what it had to decide, by leaving both to guess the material facts on which the Defendants might rely to establish any detriment arising from delay from their affidavit evidence.

  2. In opening submissions, Mr Alexis responds to this defence, somewhat dismissively, submitting that:

“It is otherwise asserted that Vittoria is guilty of “undue, prolonged and unexplained delay” in commencing the proceedings. However, the delay is all of Mario’s own making. He has singularly ignored repeated demands for the transfer of the shares for years.”

  1. In closing submissions, Mr d’Arville also submits that:

“After the November 2018 proceedings were concluded (in September 2019) Vittoria waited another 9 months to have her solicitors send a further letter about the shares.

When that did not receive a response, Vittoria waited another two years before sending another letter in June 2022.

Vittoria eventually filed the present proceedings another two years later, in July 2024.

Vittoria did not act promptly to bring about what she says is a necessary correction of the share register. That is a further reason that the Court would not grant the relief which Vittoria now seeks.”

  1. I recognise that the delay here was substantial and continued after the resolution of the 2018 Proceedings and the completion of the sale of the Concord property in 2020, and I give significant weight to that matter.

  2. The Defendants’ case in delay here depends on five propositions, which partly overlap with their defence of Anshun estoppel and abuse of process. The first of these propositions repeats their limitations defence, now abandoned, and their defence in Anshun estoppel and abuse of process which have not succeeded, and their estoppel case, which they have also abandoned. That proposition must fail where all of its elements have been abandoned or failed.

  3. The second proposition is that Vittoria is guilty of undue, prolonged and unexplained delay in bringing the claim. Mr d’Arville here fairly draws attention to the observation by Ward P in 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72 at [137], in respect of an application under s 175 of the Act, that:

“The case law suggests that proceedings for correction [of the register] should be taken promptly on discovery of the matter complained of, although a lack of awareness of the facts entitling a person to relief may justify a failure to act (see, for example, Re Scottish Petroleum Co (1883) 23 ChD 413; Commonwealth Homes Investment Co Ltd v Smith (1937) 59 CLR 443; [1937] HCA 73 per Dixon J at 463; Re Jermyn Street Turkish Baths Ltd [1970] 3 All ER 57 at p 68). One reason for this is that delay in complaining may induce innocent shareholders, interested holders, creditors and others to alter their position.”

  1. I recognise the expectation of prompt action in this respect and I also recognise that there was a significant delay between the resolution of the 2018 Proceedings in 2019, until Vittoria’s subsequent demands for delivery of the shares, and then until the commencement of these proceedings. However, the Defendants here pleaded no material facts relied on for a claim that anyone (other than, possibly, Vittoria) was disadvantaged by Vittoria’s delay in bringing these proceedings, and I am not persuaded that relief that is otherwise warranted should be withheld by reason of delay that had no adverse consequences. To the contrary, it seems to me that the public interest in enforcing an executor’s duties and Vittoria’s private interest in receiving her entitlements under the Will outweigh any significance of delay, without any identified consequential detriment, as a bar to relief claimed by Vittoria.

  2. Third, the Defendants contend the delay has caused prejudice to them, but this proposition was again not supported by any identification of material facts to establish it, and, as I have noted above, the Defendants were not entitled to advance that case without identifying those facts so as to allow a fair opportunity to Vittoria to respond to them, or to require Vittoria or the Court to guess the case they sought to establish from her or its review of their evidence dealing with unpleaded facts. This case was not established, where it was not pleaded, and the evidence in respect of it was not admitted where it had not been pleaded. Fourth, the Defendants say the proceedings are barred by laches, Mr d’Arville accepts that defence would require the Defendants to establish both delay and prejudice to the Defendants, and that prejudice is not established for the reasons noted above. Fifth, the Defendants say that the Court should, in its discretion, decline to grant the relief sought. I also do not accept that submission, and I have pointed above to the public interest in requiring executors to comply with their duties and not appropriate the assets of an estate to themselves and the absence of any pleaded or established detriment to the Defendants arising from the delay.

Orders and costs

  1. My preliminary view is that Mario and Antonella (but not the companies) must pay the costs of the proceedings, as agreed or as assessed, and I recognise that Vittoria has foreshadowed an application that those costs be paid on an indemnity basis. I direct the parties to bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days and, in the event of disagreement, their respective draft orders and submissions not exceeding five pages in Arial font 12, one and a half spacing as to the differences between them.

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Decision last updated: 06 August 2025

Cases Citing This Decision

0

Cases Cited

31

Statutory Material Cited

3

183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72
Cappelleri v Cappelleri [2024] VSCA 173
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33