Maria Di Giannantonio v Michael Di Giannantonio

[2025] NSWSC 346

Supreme Court

New South Wales

Medium Neutral Citation:

Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346

Hearing dates:

26 – 29 August, 2 – 3 September 2024

Date of orders:

11 April 2025

Decision date:

11 April 2025

Jurisdiction:

Equity - Real Property List

Before:

Williams J

Decision:

See orders at [389].

Catchwords:

DEEDS – Execution and attestation – Intention to create deed – Delivery in escrow – Intention by parties delivering deed to be immediately bound on condition that deed becomes effective only upon execution by other party – Held: Deed effective immediately upon satisfaction of escrow condition.

EQUITY – Unconscionable conduct – Whether defendants’ execution of deed procured by plaintiff taking unconscientious advantage of alleged special disadvantage of first defendant – Held: No. Special disadvantage not established.

CONTRACTS – Contracts Review Act 1980 (NSW) – Whether deed unjust – Held: No.

EQUITY – Equitable remedies – Specific performance – Where the plaintiff has carried out her obligations under the deed – Where defendants are in default under the deed – Held: Specific performance of the deed ordered.

ESTOPPEL – Proprietary estoppel – Where plaintiff became sole registered proprietor of family home by right of survivorship upon death of her husband – Where first defendant is the son of the plaintiff and the deceased – Where first defendant seeks a declaration that he has an equitable interest in the family home and that 50 per cent of that property is held on trust for him by the plaintiff – Where first defendant claims the deceased made representations to him, to the knowledge of the plaintiff, that he would inherit the family home – Whether representations were in fact made – Whether first defendant acted in reliance on the alleged representations – Where the first defendant has acknowledged by deed that he has no equitable interest in the property and has released the plaintiff from any claims against the property – Held: The deed is a complete defence to the proprietary estoppel claim, and the alleged promises were not provided in any event.

SUCCESSION – Family provision – Approval of release – Where first defendant has released his rights to apply for an order for family provision out of the whole or any part of the plaintiff’s actual or notional estate – Consideration of matters in Succession Act 2006 (NSW) s 95(4) and circumstances of the case – Held: Release approved under s 95 of the Succession Act 2006 (NSW).

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101(4)

Contracts Review Act 1980 (NSW), ss 4, 6(1), 6(2), 7, 9

Conveyancing Act 1919 (NSW), s 38

Corporations Act 2001 (NSW), s 127(1)(c), 127(3)

Evidence Act 1995 (NSW), s 140

Limitation Act 1969 (NSW) ss 27, 36, 47, 49

Real Property Act 1900 (NSW), s 74MA

Succession Act 2006 (NSW), s 95

Cases Cited:

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61

Browne v Dunn (1893) 6 R 67

Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104

Chant v Curcuruto [2021] NSWSC 751

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158

Eggins v Robinson [2000] NSWCA 61

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kelly v Kelly [2019] NSWSC 994

Kramer v Stone (2024) 421 ALR 106; [2024] HCA 48

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162

Nitopi: Wakim v Senworth Capital Pty Ltd [2024] NSWCA 102

Payne v Parker [1976] 1 NSWLR 191

Pittmore v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36

Re Estate of Legler [2024] NSWSC 726

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18

Segboer v A J Richardson Properties Pty Ltd [2012] NSWCA 253

Singh v AKM Investments Group Pty Ltd [2024] NSWCA 26

Stoltenberg v Bolton (2020) 380 ALR 145; [2020] NSWCA 45

Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Warner v Hung; In the matter of Bellpac Pty Ltd (receivers and managers appointed) (in liquidation) (No. 2) (2011) 197 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [2.5], [2.6]

Category:

Principal judgment

Parties:

Maria Di Giannantonio (Plaintiff)
Michael Di Giannantonio (First Defendant)
Mamro Pty Ltd (Second Defendant)

Representation:

Counsel:
Mr L Livingston and Mr H Cooper (Plaintiff)
Michael Di Giannantonio (Litigant in Person) (Defendants)

Solicitors:
De Pasquale Lawyers (Plaintiff)
Michael Di Giannantonio (Litigant in Person) (Defendants)

File Number(s):

2022/25305

Publication restriction:

N/A

table of contents

Introduction [1]

Salient facts [14]

Introductory observations in relation to the evidence [14]

The acquisition and improvement of the Haberfield property during Michele’s lifetime [40]

Michael’s involvement in the Haberfield extension works [92]

Michele passes away in September 2009 [108]

Michael obtains an “early inheritance” during 2010 and 2011 [137]

Michael purchases Belli Bar in 2011 [160]

The Haberfield property is mortgaged to secure a loan for Michael’s benefit in 2013 [166]

Maria requires Michael to move out of the Haberfield property in September 2016 [179]

Michael asks to move back to the Haberfield property in 2018 after his separation from Melanie [192]

The negotiation of the 2018 deed [207]

The terms of the 2018 deed as executed [260]

Findings in relation to the negotiation and execution of the 2018 deed [280]

Events following the execution of the 2018 deed [298]

The parties’ claims and defences [307]

Consideration and determination [330]

Issue 1: Did the parties mutually agree to be bound by the 2018 deed? [331]

Issue 2: Is the 2018 deed liable to be set aside as unconscionable or on the basis of the alleged undue influence of Maria’s daughters? [340]

Issue 3: Is the 2018 deed liable to be set aside under the Contracts Review Act? [347]

Issue 4: Have Michael and Mamro elected to affirm the 2018 deed or are they estopped from alleging that it is void or unenforceable? [354]

Issue 5: Michael’s claim to a proprietary interest in the Haberfield property [355]

Issue 6: The parties’ competing claims for declaratory relief [370]

Issue 7: Maria’s application for an order for withdrawal of the caveat [373]

Issue 8: Should the Court make an order for specific performance of the 2018 deed? [374]

Issue 9: Maria’s application for approval of the release in clause 8 of the 2018 deed pursuant to s 95 of the Succession Act [377]

Issue 10: Costs [388]

Conclusion and orders [389]

JUDGMENT

Introduction

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

   1. Folio identifier XX/XX/XXXX.

   2. Folio identifiers X/XXXXX and X/XXXXX .

   3. Folio identifiers X/XXXXX , X/XXXXX and X/XXXXX .

   4. ACN 074 230 783.

   5. ACN 074 781 972.

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

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

   6. ACN 147 383 177.

   7. ACN 146 841 643.

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

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

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

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

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

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

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

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

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

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

Salient facts

Introductory observations in relation to the evidence

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

“… 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.”

8. (1995) 49 NSWLR 315; at 319.

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

    9. See [77]-[78] below.

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

    10. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing).

    11. ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, Bathurst CJ agreeing).

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

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

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

    12. (1893) 6 R 67.

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

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

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

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

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

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

    13. (1959) 101 CLR 298; [1959] HCA 8.

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

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

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

“Q.   So you advised Therese what to write in this deed?

A.   INTERPRETER:  Sure, if I was the person doing the contract I would have told her what to do.  I would ‑ it wouldn't have been her telling me what to do.

Q.   So surely you would remember what's in this deed?

A.   INTERPRETER:  It ‑ it has been done in 2018.  That's quite a few years ago.  That's the reason why that I ‑ we are in Court.  I think it's about this, so it has been a few years.  It's not that I can remember everything about it.

Q.   Isn't it the case, Maria, you did not tell Therese what to write in this deed?

A.   INTERPRETER:  What is written there would ‑ would be something that I told Therese to do.  I would have not been able to tell her the words to use about what I wanted to be put into the document, but if it is there it's because I told her to do it.”

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

“It seems to me that what you’re trying to do is to put me in a situation where I - I would end up saying that someone else told me to write this.  But the circumstances at the time were such that we ended up with this that is written here.”

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

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

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

“Maria, mum - you're my mum, mate.  You need to understand this deed, mum.  You don't understand it.  You didn't ‑ you did not write it, because you're telling me to give up all my shares, mum.  My $700,000 that I spent.  You're asking me to let the judge accept this deed that you don't understand, mum.”

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

“Q.   Mum, do you agree - mum, do you agree that by me signing this deed, that I will not get any of dad's inheritance?

A.   INTERPRETER:  I don't understand the question

Q.   Mum, I knew you didn't understand the question.  I'm going to repeat as best as I can because I know exactly what you're saying.  Mum, do you agree by me signing this deed, that I will not get any inheritance?

A.   INTERPRETER:  I don't know what to say, I don't know whether your question reflects what happened.  I already gave you when my husband died, I already gave you things, so I don't know what to say about it.

Q.   Mum, in your words just now, you said - that I understood in Italian - you don't understand.

A.   INTERPRETER:  No, I do understand your question really well.  What I don't understand is what else do you want given that I already have passed on to you what things – properties.”

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

    14. See [103] below.

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

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

    15. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 321-322 (Windeyer J); Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [51] (Gleeson CJ and McHugh J); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [77] and [81] (Gleeson JA with the concurrence of Ward JA, as her Honour then was, and Emmett JA); Stoltenberg v Bolton (2020) 380 ALR 145; [2020] NSWCA 45 at [105]-[107] (Gleeson JA, referring to Payne v Parker [1976] 1 NSWLR 191 at 201-202, with the concurrence of Macfarlan and Brereton JJA).

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

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

    16. See, for example, [77]-[91], [164], [186]-[188], [217]-[220], [237]-[241], [253], [280], [283] and [284] below.

    17. See [40]-[76] below.

    18. See [99]-[104] below.

    19. See, for example, [175] below. Michael’s assertion against his sisters was raised in his opening submissions.

    20. See, for example, T273, T274, and T277-279.

    21. See, for example, [75], [186]-[188] and [216]-[217] below.

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

    22. See [95] and [106]-[112] below.

The acquisition and improvement of the Haberfield property during Michele’s lifetime

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

    23. Folio identifier XX/X/XXXX.

    24. See [192]ff below.

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

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

    25. ACN 001 066 235.

    26. ACN 074 781 972.

    27. ACN 074 230 783.

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

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

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

1. digging and jackhammering sandstone to create a four car garage;

2. placing mesh on external walls;

3. carrying bricks, timber, and tiles within the property for various works;

4. cutting bricks;

5. wrapping chicken wire around steel beams in the garage and nailing chicken wire to external walls of the house;

6. building what he describes as the main entry staircase;

7. rendering all external walls with chipped glass rendering;

8. cleaning render off walls;

9. assisting with various tasks for the construction of the gazebo;

10. pouring concrete to reinforce the garden bed in the front yard;

11. assisting with the erection of a fountain in the front yard; and

12. painting internal and external walls.

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

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

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

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

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

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

“Until his death, I worked nearly every day for my dad. The nature of the work varied, from building and installing the carport at the front of the house and sanding and painting timber to construct steel posts for the carport, to reinforcing the concrete for the main stairs of the house with the help of Armando and Bruno. Every day was something different, but the common factor was that I was working with my dad in the expectation and belief that one day, I would be rewarded for my hard work when the Haberfield Property would become mine. My mum knew that this was my expectation, as she was present in several discussions when dad said to me words to the effect that ‘this will all be yours’”.

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

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

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

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

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

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

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

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

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

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

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

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

“Michael was never promised by me or his father that he would inherit the Haberfield Property to the exclusion of our three other children. I never agreed to such arrangement and Michele never said anything to Michael to the effect that ‘this will be all yours’. Whatever expectation that Michael had was Michael’s alone and never promised by me and/or his father.”

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

“How Michael could have formed an expectation or belief that he would be rewarded for his hard work, I do not know. I do not recall him doing any work at the Haberfield Property and I don’t ever recall my Dad saying anything like ‘this will all be yours’ to Michael or anything like that.”

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

“58   My Dad never said that the Haberfield Property would one day be Michael’s. …

59   Michael wanted everything. He would regularly say words to the effect: ‘I am the man of the house and you girls shouldn’t have anything. Everything should stay in the Di Giannantonio name.’ I have no idea where he got these ideas from other than his own selfish purposes.

60   He knew I had nothing and tried to get me on his side saying that he would look after me and make sure that I got what was mine and that I should move into the Haberfield Property.”

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

“Q.   Mum, isn’t it true that I washed – I cut the grass, and I washed that yard every Sunday?

A.   INTERPRETER: This is really a silly question. This is all getting too silly. You did things, I did things. I did all that needed to be doing. It’s not like I was checking on you, what you were doing at all times.

Q.   No, I’m not saying that you were checking, mum, but that’s okay. But I did a lot of work with dad, mum, didn’t I?

A.   INTERPRETER: That seems to be only right, you were his son, you were living in the house, you did some of the work in the house, like I had things to do in the house myself.

Q.   Mum, I did a lot of work inside and outside of the house and you were there watching me with dad, yes?

A.   INTERPRETER: Yes, we’re going around in circle here. You were there with your father, and you were doing something, you were laughing, you were joking, you were going around, and you were doing things. That’s what – how it was.

Q.   Mum, I was always with dad, wasn’t I?

A.   INTERPRETER: Almost always, when you were not out with your friends.”

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

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

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

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

    28. See [46] above.

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

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

“Q.   Mr Di Giannantonio, when you and your sisters were children—

A.   Yes.

Q.   -- each of you carried out work at the Haberfield property—

A.   Yes.

Q.   -- under the direction of your father, correct?

A.   We did.

Q.   You did no more and no less work at the Haberfield property at the direction of your father than your sisters did; correct?

A.   That’s rubbish. Absolute rubbish and I’ll tell you why, sir. The kids – my sisters got married quite early, so, they all left the family home and I was left there to take all the brunt.”

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

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

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

Decision last updated: 11 April 2025