Mazzeo (by his tutor NSW Trustee & Guardian) v Sidoti

[2025] NSWSC 921

Supreme Court

New South Wales

Medium Neutral Citation:

Mazzeo (by his tutor NSW Trustee & Guardian) v Sidoti [2025] NSWSC 921

Hearing dates:

13 August 2025

Date of orders:

31 July 2025

Decision date:

13 August 2025

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Family provision order made

Catchwords:

SUCCESSION — Family provision — Claim by adult child whose affairs are under financial management — Procedure where defendant executor declines to participate in proceedings — Hearing in absence of defendant

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Take Off Opportunities Pty Ltd atfThe Clear Runway Trust v Susan Quinn Pty Ltd atfThe Susan Amelia Quinn Trust [2025] NSWSC 231

Category:

Principal judgment

Parties:

Carmelo Mazzeo by his tutor NSW Trustee and Guardian (Plaintiff)
Santina Sidoti (Defendant)

Representation:

Counsel: M Pringle (plaintiff)

Solicitors: Zucker Legal

File Number(s):

2024/344706

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. This is an application by the plaintiff, Carmelo Mazzeo by his Tutor, the New South Wales Trustee and Guardian for a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) from the estate of his late mother, Terese. The defendant executor is Carmelo's sister, Santina Sidoti. Without intending any disrespect, I will refer to the parties by their given names.

2. On 8 May 2025, Santina's solicitor filed a notice of ceasing to act. Since then, Santina has declined to participate in the proceedings. Given Carmelo's circumstances as a person whose financial affairs are under management, the Court's overriding concern has been to manage these proceedings to a hearing in the most cost-effective way possible, while giving Santina every opportunity to participate if she wished. She has not taken that opportunity. These reasons set out the procedure the Court has followed and why Carmelo is entitled to the relief he seeks.

3. Mrs M Pringle of Counsel appeared for Carmelo instructed by Mr C Zucker, Solicitor. The Court gratefully acknowledges the sensible and efficient way they have conducted the matter. Much of what follows, in particular as to the merits of Carmelo's case, is drawn from Mrs Pringle’s thorough written submissions. There was no appearance for Santina.

Procedural history

4. Terese died in February 2023, having published her last will on 22 August 2014.

5. By her will, Terese appointed Santina as executor and left her estate to her two children in unequal shares:

1. By clause 3(a)(i) and (ii), Terese gave Carmelo a life interest in one half share of a unit at Earlwood. Carmelo already owns the other half share of the unit absolutely;

2. By clause 3(a)(iii), the remainder of the unit forms part of the residue of Terese's estate at the end of Carmelo's life; and

3. By clauses 4 and 6, Terese gave the net residuary estate to Santina.

6. The gross value of the estate is estimated at approximately $3,200,000. The residuary estate included a property at Marrickville and the half share of the unit.

7. On 30 August 2024, Santina transmitted the title of the property into her name.

8. On 17 September 2024, that is to say some seven months out of time, Carmelo, by his Tutor, filed his summons for further provision from the estate.

9. On 22 January 2025, Santina sold the property for $2,800,000.

10. On 17 March 2025, the parties participated in a court-annexed mediation which failed to resolve these proceedings. It is important to note that while Santina was represented by a solicitor up to and including the mediation, she did not file or serve any of the affidavits required by paragraph 18 of Practice Note SC Eq 7, nor has she filed any evidence or other documents since then.

11. While it is not necessary for me to make a finding, it seems to me there is much force in Mrs Pringle's submission that the likely reason for Santina ceasing to engage with these proceedings is the fact that she has presumably distributed to herself the proceeds of sale of the property and does not want to concern herself with the unit already half owned by Carmelo. If Santina has distributed those proceeds then they nevertheless form part of the notional estate.

12. As I have already noted, on 8 May 2025 Santina's solicitor filed a notice of ceasing to act. In that notice, he set out the last known home address, email address and phone number for Santina. After the notice was filed there were two further directions hearings before the Registrar in Probate. There was no appearance for Santina at either of those directions hearings.

13. On 27 June 2025, the Registrar in Equity listed this matter for hearing before me for today, 13 August 2025.

14. Having become aware of Santina not being represented and her non-appearances, in accordance with usual my practice in such cases I listed the proceedings for directions before me on 14 July 2025. There was, again, no appearance for Santina on that occasion.

15. I directed that the Court be provided with Carmelo's full written submissions and a court book containing the evidence to be relied upon, and listed the matter for directions and/or judgment in the absence of the defendant for 31 July 2025.

16. On 31 July 2025, there was, again, no appearance for Santina. Mrs Pringle, on behalf of Carmelo, sought and was granted leave to move on the summons in the absence of Santina, but on the basis that any orders would be stayed up to and including today, the original hearing date, in order to give Santina one last opportunity to participate.

17. At the conclusion of the hearing on 31 July 2025, I made these Orders:

1 Orders, pursuant to Succession Act 2006 s 58 that the date for the commencement of these proceedings be extended up to and including 17 September 2024, being the date on which the Summons was filed.

2 Orders, pursuant to Succession Act 2006 s 59 that in lieu of the provision for the Plaintiff in clause 3 of the Will dated 22 August 2014 of Terese Mazzeo (the deceased) the Plaintiff is to receive the deceased's interest in the property known as Unit XX, XXXXX X Street, Earlwood (folio identifiers XXXXX XX & XXXXX XX) (the Earlwood unit) absolutely.

3   Orders, that the provision for the Plaintiff in order 2 includes all rents and profits to which the owner of the property is entitled since the date of the deceased's death and subject to the liability on the part of the Plaintiff for all outgoings in relation to it.

4   Orders, the parties to do all things necessary to effect the transfer of the estate's one half interest in the Earlwood unit to the Plaintiff in accordance with order 2 above.

5   In the event that the Defendant fails to comply with orders 2 and 4 above by 29 August 2025, order that Christopher Matthew Zucker be authorised to execute the Transfer on behalf of the Defendant and do all things necessary to effect the transfer of the estate's one half interest in the Earlwood unit to the Plaintiff.

6   Orders, the provision for the Plaintiff be borne by the residuary estate to which the Defendant is entitled.

7   Orders, there be no order as to the Plaintiff's costs to the intent that he pays his own costs.

8   Orders, the Defendant's costs, calculated on the indemnity basis, be paid or retained from the residuary estate of the deceased.

9.   Stay orders 1 to 8 (inclusive) up to and including 13 August 2025 or further order of the Court.

10.   Direct that if the defendant wishes to set aside orders 1 to 8 and defend the proceedings at the hearing fixed for 13 August 2025, then or before 11 August 2025 the defendant is to serve and file by email to the Associate to Kunc J ([email protected]) all the evidence upon which she proposes to rely at the final hearing in opposition to the plaintiff retaining the benefit of orders 1 to 8 together with an outline of submissions.

11.   Confirm 13 August 2025 as the final hearing date for the plaintiff’s summons if the defendant complies with Order 10.

12.   Direct that the plaintiff serve these orders on the defendant by:

(a)   On or before 1 August 2025 emailing them to [the email address];

(b)   On or before 4 August 2025 causing a copy of these orders to be placed in an envelope addressed to the defendant and placed in the mailbox for [the home address];

(c)   On or before 1 August 2025 send these orders by text to [the phone number]

in each case under cover of a letter explaining to the defendant that if she takes no action, and in particular, if she does not comply with Order 10, then Orders 1 to 8 will take effect on and from 14 August 2025.

13.    Direct the plaintiff to serve an affidavit of compliance with Order 12 as soon as practicable thereafter by email to the Associate to Kunc J.

14.   Direct these orders be entered forthwith.

18. Today is the day originally fixed for the hearing. Santina has not complied with Order 10 and, again, she has not appeared. In relation to each of the hearings before me, being 14 July, 31 July and today, I am satisfied that every effort has been made to give Santina proper notice of each hearing date and that, in particular, she has been put on notice of the Orders and today’s hearing by service through the email address and the phone number.

19. In relation to today, the evidence satisfies me that Order 12 has been complied with. In particular, the evidence is that on 1 August 2025, a copy of the Orders and a covering letter were emailed to the email address and sent by SMS to the phone number. They were also left in the post box for the home address on 4 August 2025. The email did not bounce and there is no suggestion that the SMS did not get through. The letter stated:

“Dear Ms Sidoti

CARMELO MAZZEO v SANTINA SIDOTI

The claim by NSW Trustee and Guardian for Carmelo Mazzeo in the estate of your late mother is listed for hearing in the Supreme Court of NSW, Level 8, Queens Square, Sydney at 10.00 am on Wednesday, 13 August 2025.

I attach orders that were made by the Court on 31 July 2025 and in particular note order 10.

I must inform you that if you do not take any action in this matter, and in particular if you do not comply with order 10, then orders 1 to 8 will take effect on and from 14 August 2025. The consequence of those orders will be transfer of the interest of the deceased in the title of the Earlwood unit to Carmelo absolutely.

It is in your interests to comply with order 10 and, yourself or through a legal practitioner, make contact with me and in any event appear at Court on 13 August 2025.

Yours faithfully

ZUCKER LEGAL”

20. Mr Zucker’s office has received no response to the email or the SMS.

21. In relation to the home address, the letter and Orders were delivered to the Court’s registry under cover of a typewritten and unsigned note:

“Mail body: SANTINA SIDOTI

To the judge handling case number 2024/00344706

I wish to advise the judge that

SANTINA SIDOTI has not lived at this address since September 2023 and have no forwarding address to send them to the occupancy of different tenants provided. when legal letters turned up in the mailbox from Zucker legal. They were sent back to the sender advising that Santina does not live here anymore. but they continue to send legal documents to this address. so we took it upon ourselves to bring this to the courts attention. and I'm assuming that Santina would know nothing about these court orders. if you have any other queries regarding the tenancy, you can contact us at

THE AGENCY property management

THANK YOU”

22. The Court provided to Mr Zucker copies of the material referred to in the preceding paragraph. An affidavit from the Legal Administrator in Mr Zucker's office which has been read today sets out what was then done:

“7   On 8 August 2025 I wrote to the email address of The Agency enquiring about a forwarding address for Santina Sidoti, I received a reply later that day from one Nancy Sidoti. A copy of my email of 8 August 2025 and the reply the same day is annexed hereto and marked with the letter "E". [The reply was from Ms Nancy Sidoti of The Agency and included “As far as I’m concerned Santina Sidoti has has [sic] not lived in the premises for well over three years. I am not sure where she’s residing at the moment.”]

8   On Monday, 11 August 2025 Christopher Zucker spoke with Ms Nancy Sidoti. She advised that Ms Nancy Sidoti is married to Mr Steven Sidoti. He is the brother of Mr John Sidoti who was married to Ms Santina Sidoti until their divorce about ten years ago. Ms Nancy Sidoti advised that she has no idea as to the whereabouts of Ms Santina Sidoti since Santina left the XXXX Road property well over three years ago. She has no means of contacting her former sister-in-law.

9   For abundant caution Zucker Legal also arranged for the letter and orders to be left in the mailbox at Unit X, XXX Road, Waverley. That was the address of the Defendant shown on her affidavit of executor in the estate of the deceased. On 12 August 2025 a voice message was left at Zucker Legal from a female person who did not identify herself or leave a return phone number. She said, inter alia, "There was something dropped off in my letterbox pertaining to Clara Sidoti. This is not her address so the letter has not reached her. I am not sure what you want me to do but just letting you know the letter has not reached Santina Sidoti." The caller referred to Clara Sidoti on the first occasion and Santina Sidoti on the second occasion. The word "Clara" was not on any envelope or document except as the email address of the Defendant.

10   Zucker Legal conducted title searches in the name of Santina Sidoti. No property in NSW has been acquired by her since the sale of the estate property at Marrickville in January 2025.”

23. Notwithstanding the return of the documents sent to the home address, the Court is satisfied by reason of the email and SMS and the latest evidence filed today, that Santina is on notice of today and that otherwise all reasonable efforts have been made to put her on notice.

The substantive proceedings

24. I will next set out why the Orders included a family provision order in favour of Carmelo.

25. On 31 July 2021, the matter proceeded before me in accordance with the principles for undefended hearings recently set out by Griffiths AJ in Take Off Opportunities Pty Ltd atf The Clear Runway Trust v Susan Quinn Pty Ltd atf The Susan Amelia Quinn Trust [2025] NSWSC 231 at [14] to [18] and which I gratefully adopt:

“14 In these circumstances, r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the Court may either proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or adjourn the trial. In circumstances where I am satisfied that Susan Quinn has been notified of the progress of the proceedings on multiple occasions, including of the final hearing, I considered it appropriate to proceed with the hearing. As Black J noted in Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258 at [2], a defendant’s right to be heard is “not a right to frustrate the hearing of proceedings by not attending them”.

15 In adopting this course, I note r 36.16(2)(b) of the UCPR, which empowers the Court to set aside or vary a judgment or order after it has been entered if “it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order” (emphasis added).

16   Notwithstanding Susan Quinn’s absence, Take Off must “prove its claim so far as the burden of proof lies upon it and if it proves its claim is entitled to the relief claimed and such other relief as is consistent therewith” (Re Anton Fabrications (NSW) Pty Ltd — Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186; 248 FLR 384 at [11] per Ward J (as the President then was)).

17   I am satisfied that Susan Quinn has been served with all relevant documents and been afforded ample opportunity to attend and be heard.

18   The defendant’s non-attendance does not mean that the plaintiff becomes liable to a more demanding obligation to assist the Court as would apply if, for example, the defendant was absent because the Court was dealing with an ex parte application. I respectfully agree with Barrett J’s observations in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [68] where, after referring to several authorities, including Isaacs J’s observations in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 at 681 concerning a “most serious responsibility” imposed upon a party who comes to court seeking relief in the absence of the other party, Barrett J stated:

It seems to me that the “most serious responsibility” to which Isaacs J referred is attracted only in those cases where a party has not been given proper notice of a hearing and is absent when an application is pressed. In those cases, the applicant is obliged to bring to the court’s attention all relevant facts known to the applicant, including those unhelpful to the applicant’s case. That “most serious responsibility” is not attracted if the defendant has been served and given ample opportunity to attend. Such a defendant’s non-attendance does not give rise to an entitlement to some especially favourable treatment. The plaintiff is, in such a situation, under the generally prevailing obligation to assist the court and not to mislead it. If the case is one of interlocutory hearing of the “limited inquiry” type to which Young J referred, the duty to assist the court is particularly pronounced. But where, as here, the application is an application for final relief and the defendant has not only received the originating process and supporting affidavit but also presented a somewhat relaxed demeanour in the face of the claim (see paras [42]–[45] above), it seems to me that the duty or expectation is confined to honestly [sic], frankness and absence of conduct apt to mislead the court in relation to any material matter.”

26. There is no dispute that Carmelo is an eligible person under the Act. At the date of Terese's death, she was survived only by Carmelo and Santina. Carmelo suffers from an intellectual disability and schizoaffective disorder as well as Crohn's Disease, a serious condition affecting his gut health. On 18 October 2023, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) made financial management orders for Carmelo's estate. The Tutor was appointed as his financial manager.

27. The summons was filed some seven months out of time. While there is no explanation for the delay by the Tutor as Carmelo’s financial manager, the Court accepts that Santina's failure to engage with the litigation means that there can be no real resistance to an order extending the time in which to claim.

28. In circumstances where Carmelo is an incapable person, dependent upon others to act on his behalf, the Court accepts that he would suffer greater prejudice if the extension of time was not permitted. Furthermore, there is no prejudice to any person if the Court does extend the time up to and including the date the summons was filed. Santina did not sell the property until late 2024, being after the claim was commenced. The sale settled in January 2025. Having received the sale price of $2,800,000 for the property, Santina ceased to participate in the proceedings.

29. It may be accepted that the estate is moderately large with its estimated gross total value exceeding $3,200,000, based solely upon the values of the realty. The major asset was the property. The Court accepts Mrs Pringle's submission that the value of the gift of the life interest in the half share of the unit has proven to be a mixed blessing for Carmelo. The analysis of the effect of the rental income from the unit on Carmelo's Centrelink benefit is in evidence. It clearly creates disadvantage and complications for him.

30. Carmelo is single and resides in community housing in suburban Sydney where he receives in-house assistance from carers. There does not appear to have been any difficulty in his relationship with his mother, who was said to be his greatest support. The report of the NCAT decision suggests that he depended upon his mother to assist him in managing his affairs. Regrettably, Carmelo does not appear to have a functional relationship with Santina.

26. Carmelo is now 62 years of age. As to his financial circumstances:

1. He owns his half of the unit from which he derived some income from rent;

2. He has a very small amount of funds under management with the Tutor;

3. He has no superannuation;

4. He receives a disability support benefit from Centrelink of $1,076 per fortnight; and

5. He receives NDIS support by way of paid carers who attend upon him in his home. That service is valued at approximately $141,000 per annum.

32. The Court accepts Mrs Pringle’s submission that adequate and proper provision has not been made by the will for Carmelo in all the circumstances. He is a child of Terese. It may be accepted that at the date of her death he was not dependent upon her for financial support, and had not been so for some years before her death, living independently of his mother. Nevertheless, while he has no dependents, he does suffer from psychological and physical conditions which make it clear that he is unable to support himself.

33. In my respectful opinion, having regard to the principles set out, for example, by Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473]-[474], in relation to claims for provision brought by adult children, while there is no need for an applicant adult child to show some special need or special claim, this is clearly a case where Carmelo's circumstances of health and dependency strongly point in the direction of an order for provision being made if the estate is large enough for that to occur. This estate is large enough. While it is unclear why Terese did not make greater provision for Carmelo, Mrs Pringle submits, but it is not necessary for me to decide, that Terese may have had a misapprehension that Carmelo's pension entitlements would cover his need.

34. The Court accepts Mrs Pringle's submission that appropriate provision for Carmelo is the one half of the unit in which he presently has been given a life estate, noting that the assets test for a single non-home owner would allow Carmelo to hold cash of $579,500 without affecting his entitlement to a pension. In the event that the Tutor as financial manager decides it should purchase alternative accommodation for Carmelo, the assets test for a single homeowner allows him to hold cash assets of $321,500. Another option could be for the establishment of a special disability trust, subject to the Tutor’s assessment of Carmelo's future needs.

35. The order proposed on Carmelo's behalf will mean Carmelo will own the whole unit, giving him an asset of sufficient size that will generate income, provide the possibility for sale to provide alternative accommodation, and a fund, if necessary, for vicissitudes in later life. Importantly for present purposes, the order proposed will leave Santina with the major share of the estate as contemplated by Terese's will. At least as matters presently appear, Santina seems to have considered that share to be sufficiently adequate that she has decided not to participate further in these proceedings.

36. Mrs Pringle suggested that if Santina had engaged with the litigation, it might have been open to Carmelo to submit that he should have received more than the estate's half share in the unit. That may be so, however, the Court is satisfied that Orders 1 to 8 were the orders that should properly be made on the summons.

37. Having regard to Santina's non-participation in the proceedings, I also accept the good sense in Mrs Pringle’s submission that there be no order as to Carmelo's costs from the estate or as against Santina. It is clear that any further engagement between Carmelo and Santina should either be avoided or, at least, kept to a minimum. For that reason, and given her non-participation, I was also satisfied that in what I expect is the almost certain outcome that Santina will not comply with Orders 2 and 4, it is appropriate that Mr Zucker be authorised to execute the relevant papers to effect the transfer of the estate’s interest in the unit in the event of default by Santina.

Conclusion

38. There being no application by Santina to defend the proceedings in accordance with Order 10, the Court is not required to make any further orders today. Orders 1 to 8 will take effect on and from tomorrow, 14 August 2025.

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Decision last updated: 14 August 2025