Toppi v Toppi (No 3)

[2025] NSWSC 733

Supreme Court

New South Wales

Medium Neutral Citation:

Toppi v Toppi (No 3) [2025] NSWSC 733

Hearing dates:

17–19 February, 5 March and 16 April 2025

Date of orders:

10 July 2025

Decision date:

10 July 2025

Jurisdiction:

Equity - Succession & Probate List - Family Provision

Before:

McGrath J

Decision:

See [525]–[535]

Catchwords:

EVIDENCE – course of evidence – reopening case – whether the interests of justice are better served by allowing or rejecting the application – where significant shift in plaintiff’s financial resources and financial needs following reservation of judgment

SUCCESSION – family provision – claim by adult daughter for provision from mother’s estate under Succession Act 2006 (NSW), Ch 3 – proceedings not commenced within time – whether sufficient cause shown to extend time – where claim for provision brought by amended statement of claim 19 days out of time

SUCCESSION – family provision – claim by adult daughter from mother’s estate – where nominal provision made for plaintiff in mother’s will – where estate left to plaintiff’s brother – where brother caring for mother – where plaintiff and mother had complete breakdown of their relationship – where plaintiff had minimal contact with mother for two years before her death amidst fiercely contested legal proceedings – where needs of brother exceed those of the plaintiff – whether adequate provision made for the proper maintenance, education or advancement in life of the plaintiff – nature and quantum of provision to be made having regard to the facts known to the court at the time the order is made

COSTS – family provision – collective costs outrageously disproportionate to the value of the deceased estate

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 65

Evidence Act 1995 (NSW), s 136

Succession Act 2006 (NSW), ss 57, 58, 59, 60

Cases Cited:

Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277

Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342; [1969] HCA 55

Alexiou v Alexiou [2024] NSWSC 1340

AMP Bank Ltd v Brown [2017] NSWSC 313

Anderson v Yongpairojwong [2023] NSWSC 1359

Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308

Angius v Angius [2025] NSWCA 113

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Baker v Baker [2024] NSWSC 559

Bassett v Bassett [2021] NSWCA 320

Blendell v Blendell [2020] NSWCA 154

Broadusv Cradduck [2025] NSWSC 402

Camernik v Reholc [2012] NSWSC 1537

Cappello v Scrivener (No 2) [2021] NSWSC 168

Chalik v Chalik [2025] NSWCA 136

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Collings v Vakas [2006] NSWSC 393

Cringle v Cringle [2018] NSWSC 1558

Dering v Earl of Winchelsea (1787) 1 Cox 318; (1787) 29 ER 1184

DJ Singh v DH Singh [2018] NSWCA 30

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15

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

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

Gaskin v Ollerenshaw [2010] NSWSC 788

Georgopoulos v Tsiokanis [2022] NSWSC 563

Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706

Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Hampson v Hampson [2010] NSWCA 359

Henry v Hancock [2016] NSWSC 71

Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2

Keep v Bourke [2012] NSWCA 64

Lalic v Lalic [2022] NSWSC 31

Lavin v Toppi (2014) 87 NSWLR 159; [2014] NSWCA 160

Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4

Madden-Smith v Madden [2012] NSWSC 146

Mahoney v McManus (1981) 180 CLR 370; [1981] HCA 54

Moore v Randall [2012] NSWSC 184

Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132

N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561

Owners — Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682

Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Portis v Green [2017] NSWSC 1489

Pulitano v Pulitano [2019] NSWSC 1688

Rada v Smith [2024] NSWSC 273

Re Bar Machiavelli Pty Ltd [2018] NSWSC 1395

Rodny v Weisbord [2024] NSWCA 183

Sgro v Thompson [2017] NSWCA 326

Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Smith v Johnson [2015] NSWCA 297

Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36

Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83

Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stone v Stone [2016] NSWSC 605

Stone v Stone [2019] NSWSC 233

Taouk v Louis (No 1) [2014] NSWSC 656

The Estate of Giovanna Toppi [2024] NSWSC 1115

Thomas v Pickering [2011] NSWSC 572

Toppi v Toppi (No 2) [2024] NSWSC 1363

Touma v Highfields Australia Pty Ltd [2024] NSWCA 160

Underwood v Gaudron [2014] NSWSC 1055

Underwood v Gaudron [2015] NSWCA 269

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Verzar v Verzar [2012] NSWSC 1380

Verzar v Verzar [2014] NSWCA 45

Watson v Foxman (1995) 49 NSWLR 315

WFM Motors Pty Ltd v Bar M Pty Ltd [2022] NSWSC 1500

White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Texts Cited:

Niccolo Machiavelli, The Prince (1513)

Oxford English Dictionary, online 2nd ed, May 2025

Sir Thomas Bingham, “The Judge as Juror: the Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1

Category:

Principal judgment

Parties:

Paola Toppi (Plaintiff)
Walter Toppi (Defendant)

Representation:

Counsel:
P Beazley (Plaintiff)
M Condon SC (Defendant)

Solicitors:
Beazley Lawyers (Plaintiff)
Levitt Robinson Solicitors & Attorneys (Defendant)

File Number(s):

2021/00323980

Publication restriction:

Nil

TABLE OF CONTENTS

INTRODUCTION

RELEVANT FACTS

The Toppi family members

Witnesses and general observations about credibility and reliability

Paola

Neil

Rosa

Walter

Caterina

Giovanna’s wills

2013 Will

2017 Will

2018 Will

January 2019 Will

August 2019 Will

2020 Will

History of these proceedings

Giovanna’s first restaurants in Sydney

Macleay Street property

Machiavelli

The Republic Bar

Caterina’s takeover and sale of Machiavelli

500 George Street

Hospitality Placements

Luxe Studios

Purported loan from Giovanna to Paola

Café 29

Polleria

Sciue Sciue

Bar Machiavelli

Bar M

WFM proceedings against Bar M Pty Ltd

Toppi Bar & Restaurant

Toppi Martin Place and Paola’s application to reopen her case

Giovanna’s gambling and financial difficulties

Giovanna and Paola – relationship breakdown and Giovanna’s death

Walter’s circumstances and financial position

Walter’s relationship with his immediate family

Walter’s living arrangements

Walter’s health

Walter’s employment and earning capacity

Walter’s financial circumstances

Withdrawals from Giovanna’s WBC account

Paola’s circumstances and financial position

Quantum of Paola’s claim

ISSUE 1: PAOLA’S APPLICATION TO REOPEN HER CASE

Legal principles

Consideration

Truly fresh evidence

Evidence available but not adduced at the 17–19 February 2025 hearing

Conclusion on application to reopen

ISSUE 2: PAOLA’S OUT OF TIME APPLICATION

Legal principles

Paola’s submissions

Walter’s submissions

Consideration

ISSUE 3: PAOLA’S APPLICATION FOR FAMILY PROVISION ORDER

Legal principles – generally

Legal principles – duty to disclose financial position

Legal principles – estrangement

Paola’s submissions

Walter’s submissions

Consideration

Section 60(2)(a) of the Act

Section 60(2)(b) of the Act

Section 60(2)(c) of the Act

Section 60(2)(d) of the Act

Section 60(2)(e) of the Act

Section 60(2)(f) of the Act

Section 60(2)(g) of the Act

Section 60(2)(h) of the Act

Section 60(2)(i) of the Act

Section 60(2)(j) of the Act

Section 60(2)(k) of the Act

Section 60(2)(m) of the Act

Section 60(2)(n) of the Act

Section 60(2)(p) of the Act

Conclusion

Observations about costs

Careful consideration by Walter

ORDERS

JUDGMENT

INTRODUCTION

1. The plaintiff, Paola Toppi, seeks provision under s 59 of the Succession Act 2006 (NSW) (the Act) from the estate of her late mother, Giovanna Toppi. In this judgment, for convenience I will refer to each of the relevant family members and other witnesses by their first names without intending any overfamiliarity or disrespect.

2. Giovanna died on 3 November 2021, aged 85 years. Unfortunately, as is common in many family provision applications, Paola’s application is made in circumstances where members of the Toppi family have experienced significant breakdowns in their relationships, with several of them no longer on speaking terms. This was most notably the case between Paola and Giovanna, whose relationship had completely broken down at the time of Giovanna’s death.

3. Giovanna was a restaurateur of great renown and success. For much of Giovanna’s adult life, she was the proprietor of the iconic “Machiavelli Ristorante Italiano” in Sydney, where authentic Italian cuisine was served in the Neapolitan tradition. Under Giovanna’s hand, and with the initial assistance of Paola, Machiavelli developed a reputation as a venue where Australian political and business leaders and powerbrokers went to eat, drink and confer over the issues of the day. A select few often sat beneath their own images which adorned the walls, perhaps in furtherance of one of the Machiavellian creeds explained by Niccolo Machiavelli in The Prince (1513), that:

It is much safer to be feared than loved when one of the two must be lacking.

4. Given the heights of their joint achievements at Machiavelli, the subsequent deterioration and fracture of the relationship between Giovanna and Paola is a story of considerable anger, sadness and distress among the members of the Toppi family.

5. For the reasons I have set out below, I have determined that provision from the estate of Giovanna should be made in favour of Paola by releasing her from any liability she may have to the estate on account of Giovanna’s right to contribution as a co-guarantor and the making of a payment to Paola of $500,000, less any amount that Paola is to pay to Giovanna’s estate following the resolution of the issue of costs in these proceedings, specifically extant costs orders which have been made against Paola in favour of Giovanna’s estate.

RELEVANT FACTS

The Toppi family members

6. Giovanna was born in 1936 in Naples, Italy, immigrated to Australia in or about 1956 and died on 3 November 2021. Giovanna was widowed at her death. Her late husband, Walter Toppi (Walter Senior) was born in Italy in 1927, immigrated to Australia separately and earlier than Giovanna, and died on 6 December 1986. Giovanna is survived by three adult children from her marriage to Walter Senior, being:

1. Paola, currently aged 61 years;

2. Caterina Tarchi, currently aged 56 years; and

3. Walter Toppi, currently aged 53 years.

7. Paola was born in Naples, Italy. Paola is married to Neil Cunningham, her husband of 35 years. Paola and Neil live in a rented apartment in Elizabeth Bay. Paola and Neil have two adult sons, Marco Cunningham (aged 24 years) and David Cunningham (aged 23 years). Marco lives in Melbourne, although he plans to move back to Sydney this year, and David lives in Sydney. Marco has a daughter, who is the granddaughter of Paola and Neil.

8. Caterina was born in Sydney and presently lives in an apartment that she owns in Bondi. Caterina has three sons, Massimo, Carlo and Luca. Caterina and Paola have been estranged for many years.

9. Walter was born in Sydney. Walter has a partner, Natalie Fernandez. Natalie is the daughter of Nadia Fernandez. Walter resided with Giovanna for nearly his entire adult life. For some time, Giovanna, Walter and Natalie resided together in a rented apartment in Double Bay. Immediately prior to Giovanna’s death, Walter and Natalie were living with Giovanna in a furnished apartment in Bondi Junction while Giovanna and Walter searched for a property to purchase. Walter presently lives in a rented apartment in Maroubra. Natalie resides with Nadia and spends up to two nights a week with Walter.

10. Paola and Walter are the protagonists in the proceedings, with Paola bringing the claim for provision from Giovanna’s estate and Walter defending the claim in his capacity as administrator of the estate. The relationship between Walter and Paola has been broken since at least August 2019.

11. While Caterina gave evidence in these proceedings, she is not a beneficiary of Giovanna’s estate and makes no claim for provision from it.

12. Most unfortunately, Paola’s claim and Walter’s defence of it have in some respects unnecessarily reopened old wounds and descended into a re-tracing of the many squabbles of the Toppi family, a significant number of which are of only peripheral relevance to the determination of the application before me.

Witnesses and general observations about credibility and reliability

13. There was a great deal of factual material placed before me. Regrettably, much of that material concerns the complex and troubled history of relationships within the Toppi family spanning over four decades.

14. Giovanna was the matriarch of a family of restaurateurs and at times supported each of her children in their various undertakings, mostly to her financial detriment. Over the years, family ties were clearly tested by, and inextricably linked to, several business endeavours which resulted in varying degrees of success and failure.

15. Perhaps unsurprisingly, very few matters are agreed upon as between Paola, Walter and Caterina, with conflicting versions or recollections of events being a common thread throughout their evidence.

16. The witnesses called in support of Paola’s claim were Paola, Neil and Rosa Lamdolina, all of whom were cross-examined. Additional affidavits were also provided by Phillip Beazley (in his capacity as solicitor for Paola) in relation to the costs incurred by Paola in these proceedings.

17. The witnesses called in support of Walter’s defence were Walter and Caterina, both of whom were cross-examined. Additional affidavits were also provided by Chrystalla Georgiou (in her capacity as solicitor for Walter) in relation to the costs incurred by Walter and aspects of the procedural history of these proceedings.

18. In every instance, I have endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.

19. This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the salient principles that guide this undertaking are the following:

1. In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].

2. A proper understanding of the chronology of events is critical and contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24, Bell P (with whom Bathurst CJ and Leeming JA agreed) at [25].

3. Judicial notice has been taken of scientific research which casts doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].

4. There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, by Ipp JA (with whom Mason P and Tobias JA agreed) at [26]:

These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.

5. A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21], citing Sir Thomas Bingham in “The Judge as Juror: the Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 at 10–11. As was observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83, by Atkin LJ at 152:

… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

This passage was quoted with apparent approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at [30].

6. The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277, Bell P (with whom White JA agreed generally at [154]–[156]) at [106], citing Goodrich at [16]–[27]. See also Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277, Bell CJ (with whom Ward P and Macfarlan JA agreed) at [102]–[103], citing White Constructions, at [106] and [138] and Goodrich, at [16]–[27].

7. It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman (1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, Basten AJA at [18] (with whom White and Adamson JJA agreed)):

… 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. Oral recollection of conversations still plays an important role as evidence in a case, as explained in ET-China.com, by Bell P (with whom Bathurst CJ and Leeming JA agreed) at [27]–[29] in the following terms (emphasis in original):

[27]   Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):

the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. (emphasis added)

[28]   Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.

[29]   Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.

20. Where necessary, I have made specific comments about the credibility and reliability of the evidence of particular witnesses in my findings about identified events below.

21. In terms of the credibility of Paola, Neil, Rosa, Walter and Caterina as witnesses generally, bearing in mind the foregoing principles, I make the following remarks about each of them.

Paola

22. The credibility and reliability of Paola’s evidence varied.

23. Paola’s evidence was implausible at times, especially when she was unwilling to accept obvious propositions or she was asked questions about Walter when her evidence was admittedly coloured by her dislike for him, as illustrated by the following exchange in cross-examination (T27):

Q.   … You don’t like your brother very much at all, do you?

A.   No, not at all.

Q.   That’s coloured the way that you have prepared your evidence in this case, isn’t it?

A.   That’s correct.

24. The infiltration of this colouring to her evidence can be seen by her refusal to accept that Walter’s medical needs made his employability a bit difficult (T41) and her exaggerated comments that “[Walter] never worked as far as I’m concerned” and that “[Walter’s] never wanted to work” (T41), when it is clear that Walter had worked for years in the restaurant industry before his mental and physical health prevented him from doing so. Paola’s coloured approach to giving evidence is demonstrated by her admission that she did not include in her affidavits any statements made by Giovanna that she wanted Walter to be looked after, saying it was “not my position to… explain Walter’s position” (T32).

25. Despite this approach, to her credit Paola accepted in cross-examination that Walter ought to receive “a significant amount” from, and “at least half of”, Giovanna’s estate in conformity with Paola’s understanding of Giovanna’s testamentary intentions and concerns for Walter (T30–31).

26. I also accepted Paola’s evidence on topics where it could be substantiated by reference to other objective evidence, such as the extent to which Giovanna was paid amounts on a weekly basis from the businesses in which Paola and Giovanna had an interest.

27. Paola’s evidence about her financial circumstances was confusing, particularly where she did not have a grasp of the difference between the assets and liabilities of herself and those of the companies in which she was involved. She appeared to have devolved to her accountant any understanding of the company in which a director’s loan account was being used to fund her “living expenses” which, as considered later in this judgment, included funds used to gamble by both Paola and her son, David (T75–77). Ironically, it became unnecessary for me to make any determination to resolve that confusion when I permitted Paola to reopen her case to show that her principal asset (which she held indirectly), the business known as “Toppi Bar & Restaurant”, had ceased trading.

28. There were many instances where the evidence provided by Paola was challenged by either or both of Walter and Caterina. In many instances it was not necessary for me to resolve the conflict in their respective positions because it was not relevant to the central determination I have to make.

Neil

29. Not only was Neil partisan in the interests of Paola, but he also adopted a particularly combative, evasive and sarcastic approach to being cross-examined. When he was asked questions in cross-examination about matters in his own affidavit, relating to his own bank account or multiple bank transfers made to him, all of which I consider to be squarely within his own knowledge, he professed to have no information or recollection about them or answered in an unhelpfully pugnacious way. The examples in cross-examination in which he adopted this approach include his answers to questioning about:

1. the 2023 VW Golf car obtained by Neil using finance arranged by him and that he drives, about which Neil claimed not to know any detail (T91–95); and

2. multiple transfers made to Neil totalling several thousands of dollars within a matter of days in July and August 2024 from company accounts, about which Neil claimed not to know anything or recall what they were for, including whether they were wages or living expenses (T95–102).

30. In my assessment, Neil was using the resources of Toppi Martin Place to pay for his living expenses despite his evidence to the contrary.

31. As a result, I have treated Neil’s evidence with considerable caution.

Rosa

32. Rosa’s evidence was confined to specific topics.

33. In her affidavit, Rosa confirmed the extent of Giovanna’s serious gambling habit, having witnessed Giovanna being “well known” at the Star City Casino, and attesting to loaning Giovanna significant amounts of money to pay debts and gamble. I accept this evidence.

34. I do not rely on the evidence of Rosa concerning the nature and extent of Walter’s care for Giovanna and Giovanna’s alleged complaints about it. This is partly due to the fact that Rosa admitted in cross-examination that she ceased to see or have any contact with Giovanna when Giovanna started using a wheelchair about three years prior to her death in November 2021 (T62–63).

35. Rosa gave particular affidavit evidence about seeing bruises on Giovanna’s arms, which she claims Giovanna attributed to Walter and his girlfriend getting “angry at her”. Given that Rosa admitted in cross-examination that if she had any concerns about the treatment of Giovanna, she would have raised them with Caterina but did not (T65), I am not prepared to use Rosa’s evidence to find that Walter mistreated Giovanna in his care of her.

Walter

36. In my assessment, although Walter presented as an argumentative and combative witness, his attitude was born of someone who has been locked in these highly contested proceedings with his sister Paola for over three years, stricken with grief at the loss of his mother for whom he cared deeply, angry at Paola for her treatment of Giovanna in her final years and suffering from complex psychological conditions for which he requires medical treatment that he cannot afford from his own resources.

37. To Walter’s considerable credit, when challenged in the very first question of his cross-examination to the effect that he did not have a very good relationship with Paola, he answered (T117):

Well, I, I love my sister. How she wants to believe the relationship is not, it’s not from me. I always thought I had a decent relationship with my sister.

38. The extent of Walter’s grief at the loss of his mother came out during the cross-examination, particularly when he described the considerable care he provided to Giovanna towards the end of her life, to which he added “[a]nd I enjoyed every moment of it” (T119).

39. Walter’s devotion to Giovanna was clearly considerable. During his cross-examination he sought to vindicate matters he had no doubt heard from his mother about which he had no direct knowledge. He championed Giovanna’s cause in overly emotional and expletive terms on occasion, particularly in a text message in about December 2019 that Walter sent in response to an email from Marco, which is repulsively expressed and which I will not repeat save for the line that demonstrates how firmly he sided with Giovanna:

…say what you want about me but I got my mothers back…

40. I do not accept Walter’s attempts to distance himself from a message he obviously sent (as he finally accepted), as demonstrated in the following exchange (T139–140):

Q.   Let me show you page 508 again. Did you send that?

A.   I can’t, I told you - where’s the rest of the email?

Q.   No, did you send that?

A.   I don’t know. Where’s the rest of the email?

Q.   That’s the whole email.

A.   I can’t see the beginning, I can’t see the ends. I can’t see who it was sent by or where it’s gone to. This is, this just could be a photocopy. I don’t know.

Q.   Is that your honest answer?

A.   That’s the honest answer. Where’s the rest of the email? I just see Paola Toppi here to Philip Beazley.

Q.   Yes, that’s --

A.   I don’t see--

Q.   That’s a text message.

A.   Where’s the rest of the email, Mr Beazley? I don’t see my email address. I don’t recall.

Q.   It’s not an email. It’s a text message.

A.   Well, text message. I don’t see my number. I don’t see this is from me. This could have been changed. It could have been amended. It could have been anything. I don’t see this as mine, what I sent, no. To be honest with you. All I see is a photocopied document from Paola Toppi to Mr Beazley here.

Q.   Yes.

A.   Yes.

Q.   I’m asking you to read--

A.   No, I’m not reading it, because I already read it before. This is the second time you’ve asked me.

HIS HONOUR

Q.   Mr Toppi?

A.   Yes. He just gave me the same document five minutes ago.

Q.   Yes, do the words that appear in the black box--

A.   They do, but they’re--

Q.   Just please wait until I’ve asked you a question.

A.   Sorry.

Q.   Do the words that appear in the black box on page 508, are they words that you drafted?

A.    It appears so. Sorry.

41. Walter’s anger at Paola’s treatment of Giovanna was captured in the following exchange (T120):

Q.   You don’t paint your sister in a very good light, do you?

A.   Unfortunately, the way she behaved towards my mother’s most vulnerable and the years that you would expect somebody to, she done the complete opposite, and was a big let down to myself and, unfortunately, she broke my mother’s heart, yeah.

42. Walter openly admitted to having a flawed memory, saying that he struggled to recall things from a couple of years back (T118), which I think is likely to be a product of the medical conditions with which he has been diagnosed but remain untreated.

43. Walter also admitted that his reading ability was restricted by the fact that he left school before he was 15 years old (T124), although in my assessment he was able to read to a sufficient level of understanding when given time to do so.

44. I accept Walter’s denial of the proposition that Caterina is holding money for him until after the proceedings are over (T156). I also accept Walter’s understanding that Caterina has maintained a ledger for every amount she has lent him and his assertion that he repaid her with interest on that amount (T156). That ledger (with supporting bank documents) went into evidence and shows that Caterina has lent $214,792 to Walter. I accept Walter’s evidence that he believes that by paying $250,000 to Caterina (via his solicitors) he has repaid the loan from her plus interest (T155–156).

45. In cross-examination, Walter was also argumentative and prone to giving intemperate speeches, particularly with respect to Giovanna’s knowledge of a loan made to her and Paola for a business known as “Bar Machiavelli” (later, “Bar M”) (T132–137), which is dealt with in more detail below.

46. My overall assessment of Walter’s evidence is that he did his best to give his evidence honestly and fully within the limitations caused by his medical conditions. I have, however, recognised that his evidence is not completely reliable in all respects because of the flaws in his memory and his unstintingly emotional desire to side with Giovanna’s version of events. There is also one matter in particular about which I consider Walter was not forthcoming. That is addressed later in this judgment. For these reasons, I have been cautious in considering numerous aspects of Walter’s evidence.

Caterina

47. Caterina is in the invidious position of finding herself in the middle of heated and hard-fought litigation over her mother’s estate between her only siblings. Caterina provided her evidence directly and without prevarication. She admitted that her relationship with Paola is not very good, and that they have been estranged for about 25 years, but accepted that it may be less and they must have been on good terms when they were going to operate a sushi train business together (T168 and T176).

48. Caterina also accepted that her relationship with Walter is good (T165). Caterina readily agreed that she is financially supporting Walter with a loan until the outcome of this litigation (T165), and that she would continue to support him if he needs money (T173–174).

49. On the whole, the cross-examination did not test the credibility or reliability of any of Caterina’s evidence. I am satisfied that I can rely on the evidence given by Caterina in most respects, unless I have given a reason for not doing so.

Giovanna’s wills

50. In the years prior to her death, Giovanna made a number of wills, including those dated:

1. 10 October 2013 (2013 Will);

2. 8 December 2017 (2017 Will);

3. 26 October 2018 (2018 Will);

4. 30 January 2019 (January 2019 Will);

5. 16 August 2019 with the Codicil dated 28 August 2019 (August 2019 Will); and

6. 2 September 2020 (2020 Will).

51. These wills provide invaluable insight into the shifting dynamics within the Toppi family from time to time, as well as the pivotal fluctuating relationship between Giovanna and Paola. Paola features as a substantial beneficiary of Giovanna’s estate in some wills but not in others.

52. This instability in the expression of Giovanna’s testamentary intentions with regard to Paola is demonstrative of the nature of their relationship, which could fairly be described as turbulent. The fluctuations in their mutual affection appear to have been closely tied to the success or otherwise of their various business endeavours over the years. This correlation is most notable in respect of the spectacular rise and fall of Bar Machiavelli, which is addressed later in this judgment, as reflected in the January 2019 Will, the August 2019 Will and the 2020 Will.

2013 Will

53. The 2013 Will:

1. left the property at 95 Macleay Street, Potts Point (Macleay Street property) owned by Giovanna to Walter and Paola as tenants-in-common in equal shares;

2. directed Caterina to repay a loan in the amount of $1.3 million that she took out in Giovanna’s name and secured against the Macleay Street property;

3. gave Giovanna’s interest in Machiavelli and the premises from which that business operated to Caterina, subject to Caterina repaying the loan made to her; and

4. left the residue of the estate on trust for Walter, Paola and Caterina.

2017 Will

54. The 2017 Will:

1. appointed Walter as sole executor and trustee of Giovanna’s estate;

2. left her shares in three companies (G & P Toppi Pty Ltd, Sciue Sciue Pty Ltd and Tridevco Pty Ltd) to Paola;

3. gave the Macleay Street property to Walter; and

4. gave the residue of Giovanna’s estate to Walter.

55. The 2017 Will was accompanied by a statement made by Giovanna detailing the reasons for the provisions that she made in the 2017 Will (2017 Statement).

56. By way of summary, in the 2017 Statement, Giovanna gave the following explanations:

1. In respect of Paola: Giovanna made provision to Paola of shares in restaurant businesses in which Paola already held an interest so that Paola could take over and operate those businesses to earn substantial income. Giovanna and Paola had disagreements that caused distress to Giovanna. Paola was in a strong financial position but had lost a lot of her assets and funds. Paola is financially savvy and intelligent and, by inheriting the businesses, Giovanna considered that she would be in a position to establish a strong financial future. Giovanna did not wish for Paola to inherit any other part of her estate because of her then “recent relationship” with Paola and “Paola’s character”.

2. In respect of Caterina: By this time, Caterina and Giovanna had been estranged for years. Giovanna had substantial problems with Caterina in relation to her “takeover” of Machiavelli, in circumstances which left Giovanna responsible for a multi-million dollar mortgage. Giovanna felt betrayed and cheated by Caterina. Giovanna considered that her relationship with Caterina irretrievably broke down as a result. Giovanna considered that Caterina’s financial circumstances to be much stronger than those of Paola and Walter, that Caterina and her husband were in a very strong financial situation and did not have any need for provision from Giovanna out of her estate. The assets that Caterina and her husband had been able to accumulate were largely from the takeover of Machiavelli and the subsequent income they derived would enable them to meet their future needs.

3. In respect of Walter: Giovanna considered that Walter was in the most need. Walter left school at the age of 14 after his father died and had significant issues resulting from his father’s death. Walter previously managed a restaurant but was severely bashed during a break-in following which Walter was unable to work or derive any income. Walter lived with Giovanna. Giovanna paid all the outgoings, costs and expenses. Giovanna looked after Walter and he did not receive a pension. Walter also looked after Giovanna by driving her wherever she asked, including to medical appointments. Walter was genuinely concerned about Giovanna’s interests and they had a close and loving relationship. Giovanna considered she had a strong moral obligation to provide for Walter in a way that would enable him to live comfortably into the future. It was Giovanna’s intention that by leaving Walter the Macleay Street property, he would be able to reside in one of the units and collect rent from the commercial premises throughout the rest of the building to maintain his standard of living. Walter was also left the residue of Giovanna’s estate, again owing to that same sense of a strong moral obligation.

2018 Will

57. The 2018 Will:

1. appointed Rosa and Mr Beazley (the solicitor acting for Paola in these proceedings) as executors of Giovanna’s estate;

2. directed the executors to sell the Macleay Street property by way of auction;

3. required the executors to hold the net sale proceeds of the Macleay Street property on trust as to one half for Walter by giving a life interest in the use of that capital to provide him with accommodation and an income and as to the other half for Paola; and

4. left the residue of Giovanna’s estate on trust on exactly the same basis as the Macleay Street property, for the benefit of each of Walter and Paola.

January 2019 Will

58. The January 2019 Will:

1. appointed Marco as sole executor and trustee of Giovanna’s estate;

2. left the shares in three companies (G & P Toppi, Sciue Sciue Pty Ltd and Tridevco) to Paola; and

3. divided the rest and residue of Giovanna’s estate by giving 50% absolutely and beneficially to Paola, and 50% to Paola to hold on trust for Walter.

59. Nothing turns on it, but I note that on 23 January 2019 (about one week prior to the execution of the January 2019 Will), G & P Toppi had changed its name to Cara Nonna Pty Ltd.

August 2019 Will

60. The August 2019 Will:

1. appointed Walter as sole executor and trustee of Giovanna’s estate;

2. left her shares in the same three companies (G & P Toppi, Sciue Sciue Pty Ltd and Tridevco) to Paola;

3. provided that, whether the Macleay Street property was sold or retained after Giovanna’s death, no action was to be taken by Giovanna’s estate against Paola and/or her associated entities to recover any amount paid to discharge a mortgage entered into for the benefit of both Paola and Giovanna and secured against the Macleay Street property;

4. provided that any obligation of Paola or her associated entities to repay any sum in relation to that mortgage would be discharged upon the death of Giovanna;

5. Giovanna considered that if the Macleay Street property was sold before she died, she had made sufficient provision for Paola by discharging the mortgage and paying the debt which that mortgage secured from the proceeds of sale of the Macleay Street property; and

6. gave the rest and residue of Giovanna’s estate to Walter, or should Walter predecease or otherwise fail to survive Giovanna, to Walter’s children, or should Walter have no children, to Paola’s children in equal shares.

2020 Will

61. Under cl 5 of the 2020 Will, Walter was appointed as the sole executor and trustee of Giovanna’s estate.

62. The relevant parts of the testamentary dispositions in the 2020 Will in cl 8 are as follows (emphasis in original):

8.   I DIRECT that my Executor:

a.   Firstly, PAY all estate liabilities.

b.   Secondly, GIVE my company shares as follows:

i.    As at the date of this Will, I am a shareholder as to 1 class B share in CARA NONNA PTY LTD ACN 610 562 368. If, at the date of my death, I own this share, or any shares, in the said Company, then I GIVE them to my daughter, PAOLA CUNNINGHAM (“Paola”) … PROVIDED ALWAYS that, should Paola not survive to take this gift, leaving a child or children, then such child or children, shall take by substitution and, if more than one, as tenants in common in equal shares, the gift by this clause which Paola would otherwise have taken;

ii.    As at the date of this will, I am a shareholder as to 2 ordinary shares in HOSPITALITY PLACEMENTS PTY LIMITED ACN 074 269 944. If, at the date of my death, I own these shares, or any shares, in the said Company, then I GIVE them to Paola, PROVIDED ALWAYS that, should Paola not survive to take this gift leaving a child or children, then such child or children shall take by substitution and, if more than one, as tenants in common in equal shares, the gift by this clause which Paola would otherwise have taken; and

c.    Thirdly, GIVE my property located at 95 Macleay Street, Potts Point, in the State of New South Wales, 2011 (Folio 10/651851), subject to any encumbrances thereon, to Walter, PROVIDED ALWAYS that, should Walter not survive to take this gift …

d.    Finally, GIVE the rest and residue of my estate, of whatsoever kind and nature, and wheresoever situate absolutely and beneficially to Walter PROVIDED ALWAYS that, should Walter not survive me to take this gift …

History of these proceedings

63. These proceedings did not originate as a claim for provision under s 59 of the Act.

64. On 15 November 2021, Paola lodged a notice of intention to apply for probate of the 2018 Will.

65. On 24 November 2021, Walter lodged a caveat such that no grant of probate or reseal be made in Giovanna’s estate without prior notice to him.

66. On 6 December 2021, Paola lodged a caveat of her own.

67. On 10 January 2022, Paola filed a summons seeking that letters of administration with the 2018 Will annexed be granted to Paola.

68. On 28 January 2022, Walter lodged a caveat that no grant of administration with the will annexed be made in Giovanna’s estate without prior notice to him.

69. On 4 May 2022, Walter filed a summons for probate of the 2020 Will.

70. On 11 July 2022, Hallen J ordered that the matter proceed by way of pleadings and provided a timetable for pleadings and evidence.

71. On 27 July 2022, Paola filed a statement of claim in which she sought that letters of administration with the 2018 Will annexed be granted to Paola.

72. On 17 August 2022, Walter filed his defence and statement of cross-claim. By Walter’s cross-claim, he sought the grant of probate in respect of the 2020 Will or, in the alternative, the August 2019 Will.

73. On 12 September 2022, Paola filed a defence to the statement of cross-claim and a reply seeking, in the alternative, a grant of probate in respect of the 2013 Will.

74. On 5 October 2022, Paola filed an amended statement of claim in which she sought letters of administration with the 2013 Will annexed be granted to Paola.

75. On 12 October 2022, Walter filed an amended statement of cross-claim, which included an application for provision pursuant to s 59 of the Act from Giovanna’s estate in favour of Walter. This was the first time an application for provision was made in the proceedings.

76. So, by that stage, the respective positions of Paola and Walter were as follows:

1. Initially, Paola sought administration of the 2018 Will or a grant of probate in respect of the 2013 Will. As outlined above, both the 2018 Will and the 2013 Will made substantial provision for her. Challenge to the January 2019 Will, the August 2019 Will and the 2020 Will appears to have been pressed by Paola, at least initially, on the bases of a lack of testamentary capacity of Giovanna and/or undue influence by Walter.

2. Walter sought a grant of probate in respect of the 2020 Will, which effectively made no provision for Paola other than shareholdings in private entities that were agreed by both parties to be of no value. Alternatively, Walter sought a grant of probate in respect of the August 2019 Will which, save for a statement of testamentary intention not to recover any debts owing to Giovanna’s estate by Paola or her associated entities in relation to a mortgage registered against the Macleay Street property, left the entirety of Giovanna’s estate to Walter.

77. On 14 November 2022, Paola filed a defence to the amended statement of cross-claim.

78. On 22 November 2022, Paola filed a further amended statement of claim in which the relief sought included:

Further or in the alternative, an order making provision for the Plaintiff out of the estate of the Deceased pursuant to s 59 of the Succession Act 2006 (NSW).

79. This was the first time Paola advanced a claim for provision in the proceedings. By this time, the 12-month limitation period in s 58(2) of the Act had lapsed some 19 days earlier.

80. During 2023, various timetables for the service of evidence and other interlocutory steps were ordered.

81. On 17 November 2023, the proceedings were listed for a nine-day hearing to commence on 26 August 2024.

82. On or around 24 July 2024, Paola’s solicitor notified Walter’s solicitors that Paola was no longer propounding either the 2018 Will or the 2013 Will. Consequently, the scope of Paola’s claims had significantly reduced and encompassed only the out-of-time claim for provision.

83. By 14 August 2024, it became clear that Paola’s evidence in relation to her claim for provision was lacking, mostly due to the absence of information as to her financial position. The reason identified for the uncertainty in relation to her financial position at this time was the potential sale of Paola’s principal asset, the restaurant known as Toppi Bar & Restaurant in Martin Place, Sydney. Specifically, the proposed sale of Toppi Bar & Restaurant had stalled in or around July 2024, just prior to the hearing.

84. On 21 August 2024, Pike J made various orders including the dismissal of the balance of Paola’s claims – the exception being her claim for provision – as well as an order that probate in respect of the 2020 Will in solemn form be granted to Walter. As a result, the issue of provision from the 2020 Will is the focus of my determination in these proceedings.

85. On 29 August 2024, Pike J made further orders, including that Paola was granted leave to rely on further evidence, the matter was adjourned, the hearing dates that remained were vacated, and Paola was ordered to pay the costs thrown away by reason of the adjournment: The Estate of Giovanna Toppi [2024] NSWSC 1115. In addition, Pike J noted that Paola consented to the sum of $1 million being paid out to Walter in his capacity as executor of Giovanna’s estate, and that sum may be used (subject to Walter’s duties as executor) to pay his legal costs in these proceedings and in part satisfaction of his claim to the residue of the estate.

86. Again, one matter of particular significance in determining the grant of leave that necessitated the adjournment was the potential sale of Toppi Bar & Restaurant, then being a matter which had “only recently emerged and been clarified”: The Estate of Giovanna Toppi, Pike J at [47]. In this light, his Honour was particularly conscious of the need in provision claims such as this for the court to have up-to-date information as to the financial position of a claimant: The Estate of Giovanna Toppi, Pike J at [57], citing Rodny v Weisbord [2024] NSWCA 183, Ward P at [2], [3], and [5], Stern JA at [13], and Basten AJA at [57] and [67]–[68]; Baker v Baker [2024] NSWSC 559, Hammerschlag CJ in Eq at [22].

87. In making these orders, Pike J also noted that Paola’s conduct of the proceedings – effectively having been run on the basis that the probate case needed to be determined before advancing her case for provision – had unnecessarily prolonged the litigation and caused stress and anxiety to Walter because of the proceedings themselves and the consequent delay. This view is consistent with my own impression of the matter arising from Paola’s highly inefficient conduct of the proceedings before me. The result is that Giovanna’s estate – the very thing the parties are fighting over – has been significantly diminished by legal costs.

88. On 29 October 2024, Pike J ordered Paola to pay Walter’s costs of the proceedings other than to the extent that they relate solely to her claim for provision, with liberty reserved for Walter to apply at the conclusion of these proceedings to seek the ordered costs on the indemnity basis: Toppi v Toppi (No 2) [2024] NSWSC 1363.

89. Unfortunately, the potential sale of Toppi Bar & Restaurant was a matter that was neither resolved nor clarified prior the hearing before me in February 2025. The uncertainty with regard to the future of Toppi Bar & Restaurant reared its head again some six days after I reserved my judgment in this matter. This led to Paola’s application to reopen her case, a matter I have dealt with in more detail below.

Giovanna’s first restaurants in Sydney

90. When Giovanna arrived in Sydney she first worked at “Buona Sera”, a restaurant in Macleay Street, Potts Point.

91. In 1967, Giovanna opened her first restaurant called “O Sole Mio” on New South Head Road, Edgecliff.

92. In 1975 or 1976, Giovanna opened “Giovanna’s”, a restaurant at 75 Macleay Street, Potts Point.

Macleay Street property

93. In 1979, Giovanna purchased the Macleay Street property for $348,000 and there opened the very well-known restaurant “La Strada”. It was an intimate, silver service, 50-seat restaurant where politicians, business leaders and notable clientele came to dine.

94. In about 1980, when she was about 16 years old, Paola commenced her apprenticeship as a chef at La Strada and continued to work there intermittently until 1988.

95. In 1996, La Strada ceased trading to enable Giovanna to reduce her workload as, by this time, she had been serving lunch at Machiavelli and dinner at La Strada for the better part of a decade. Shortly after La Strada ceased trading, Giovanna leased out various parts of the Macleay Street property to generate income.

96. In her later years, the Macleay Street property served as both Giovanna’s principal asset and primary source of income. It consisted of three commercial tenancies on the ground floor, with residential accommodation on the first floor and attic.

97. The Macleay Street property also served to benefit Giovanna’s children at different times and in various ways, including as security for loans and/or guarantees benefiting both Caterina and Paola, as well as providing premises for businesses run by both Paola and Walter.

98. Between 1996 and 1998, Paola leased one of the ground floor commercial tenancies of the Macleay Street property, Shop One, from Giovanna to open a shop with Neil. Paola says that she paid rent to Giovanna of $3,000 per week and she agreed to this after Giovanna had not been able to find tenants for some 18 months. Walter recalls that the rent was $3,000 per month and the shop was vacant for 12 months during which Paola and Giovanna quarrelled over Giovanna’s initial refusal to lease it to Paola. It is not necessary for me to resolve this conflict in the evidence as it is clear Paola paid Giovanna a substantial amount in rent, whatever it was. That Giovanna and Paola may have had disagreements about the lease is in keeping with the nature of their relationship.

99. Between 2004 and 2012, Walter operated an Italian restaurant, “La Vecchia Cucina”, from Shop Two of the Macleay Street property, with the consent of Giovanna.

100. In April 2021, the Macleay Street property was sold for $8,500,000 and the sale settled in August 2021.

101. At the time it was sold, the Macleay Street property generated gross income of approximately $290,000 per year but this income was substantially disrupted in 2020 and 2021 for reasons related to the COVID-19 pandemic.

Machiavelli

102. In 1988, together with a business partner, Gino Bigazzi, Giovanna purchased a restaurant business called “The Kingfish Seafood Café” operating at Lot 1, 123 Clarence Street, Sydney (Clarence Street premises) for $165,000.

103. The Clarence Street premises were the subject of a lease, and the strata title did not form part of the restaurant purchase.

104. Giovanna and Mr Bigazzi resolved to renovate the Clarence Street premises, which was done over six weeks from funds borrowed by Giovanna. Following this, the pair opened Machiavelli.

105. According to Paola, she was left to perform the renovation on her own. According to Walter, Caterina and he also helped with the renovations, which Paola denies. I consider it is likely that Paola, Caterina and Walter all helped in some way in preparing the Clarence Street premises for trade as Machiavelli, but is not necessary for me to resolve that conflict in the evidence as nothing particularly turns on it.

106. Machiavelli opened as a 200-seat restaurant with Giovanna working on the antipasto table, Paola working as head chef, and Caterina and Walter (aged only 15 years) working on the restaurant floor.

107. Shortly after Machiavelli opened, Paola created an original spaghetti dish that she called “Spaghetti Machiavelli” in honour of the restaurant, and which became the most popular dish at Machiavelli.

108. At some stage in 1989, the partnership between Giovanna and Mr Bigazzi for the operation of Machiavelli dissolved. Giovanna bought Mr Bigazzi out of the business for $160,000, the funds having been borrowed against the business and secured by Giovanna’s guarantee against the Macleay Street property.

109. In early 1989, Machiavelli Ristorante Pty Limited was incorporated for the purposes of owning and operating Machiavelli. At this time, Paola and Caterina were appointed as the initial directors of Machiavelli Ristorante.

110. Machiavelli achieved significant success as a lunch venue in central Sydney, often trading at capacity. The clientele of Machiavelli included politicians, business leaders, public officials and notable figures in the entertainment world. Giovanna developed the idea of having the life size photographs of the most prominent political and business figures of the times on the walls of Machiavelli, and it is said that those individuals would then invariably seek to dine beneath their own images.

111. On 31 December 1995, Giovanna became a director and the secretary of Machiavelli Ristorante upon the resignation of Paola. Paola says that at or around this time, she transferred her shareholdings in Machiavelli Ristorante to Caterina. Caterina does not deny this.

112. However, there is conflicting evidence about the shareholdings in Machiavelli Ristorante, including claims by Paola (which are disputed by Caterina) that they were held on trust at various times.

113. The 1995 Annual Return filed in respect of Machiavelli Ristorante on or around 29 January 1996, and signed by Caterina, indicates that of the ten shares on issue of Machiavelli at that time, Caterina held nine shares, Walter held one share and that neither Giovanna nor Paola held any shares. The 1995 Annual Return is consistent with Paola’s evidence in that it suggests that, of the ten shares on issue, Paola once held eight shares (that entry being crossed through), Walter held one share and there is a hand annotation to Caterina’s shareholdings which appears to be the result of changing a “1” to a “9”, being the sum of the eight shares once held by Paola and the single share initially held by Caterina. This would suggest that Paola’s eight shares in Machiavelli Ristorante were transferred to Caterina.

114. Walter says that Giovanna had expressed an intention that she and her three children would each hold or receive a 25% share in Machiavelli but that this arrangement was sometime later abandoned by Giovanna.

115. Later written statements by Giovanna (which are addressed below) strongly suggest Giovanna believed that, amongst other things, at least some of the shares in Machiavelli Ristorante were being held by Caterina on trust for Giovanna.

116. What is clear is that sometime in 1995, Paola left Machiavelli and commenced working with Neil full time in his shops. Caterina says that this came about after months of heated arguments that Paola had with both Giovanna and Caterina, including over the way that Machiavelli was being run and Paola’s desire to bring other people into the Machiavelli business. Caterina does not recall ever resuming a meaningful business or personal relationship with Paola after her departure from Machiavelli in 1995.

117. Walter says that he was also involved in an argument between Paola, Giovanna and Caterina, though he gave conflicting evidence as to the timing of this argument. Walter says this argument led to Paola leaving Machiavelli, at the conclusion of which Paola threw her keys to the Clarence Street premises to Caterina and said words to the effect of:

Good luck to you, and I don’t need your shitty restaurant.

118. Paola denies having said these words and says that she continued to work at Machiavelli from time to time, including during the Sydney Olympics in 2000, until the demands of her other business with Neil and parental responsibilities prevented her from doing so. Paola has provided tax invoices dated 20 April 2001 and 22 June 2001 issued by BaseCove Pty Ltd to Machiavelli for what she says were consultancy services provided by her at those times.

118. Caterina categorically denies that Paola returned to work at Machiavelli after 1995, as does Walter. Although it is not necessary for me to make precise findings about this matter, I do find that Paola left Machiavelli in 1995 amidst arguments with Giovanna, Caterina and Walter.

119. I also find that the circumstances in which Paola left Machiavelli in 1995, and perhaps the events which followed, caused a significant rift in Paola’s relationship with Caterina. Their relationship has never completely recovered even though Caterina later assisted Paola by providing a guarantee (outlined in more detail below) and at some point, they discussed establishing a sushi train business together.

120. The same cannot be said for the relationship between Paola and Giovanna, who appear to have been close for relatively lengthy periods, punctuated by significant but perhaps more fleeting periods of disagreement until their final parting.

121. Indeed, it was not unusual during the course of the relationship between Paola and Giovanna for there to be tumultuous fallings out followed by forms of reconciliation. That reconciliation frequently coincided with, or was quickly followed by, some form of new business endeavour involving the two of them.

The Republic Bar

123. When Paola left Machiavelli in 1995, she renovated “The Republic Bar” in O’Connell Street, Sydney. Food was also provided at the venue, although Paola says that it was not an Italian restaurant.

124. Caterina regarded this as the opening of a rival restaurant, causing a huge rift between Paola and the rest of the family. Paola denies that it caused any rift.

125. Although nothing particularly turns on it, given the circumstances in which Paola left Machiavelli, it is likely that Paola working in another hospitality business in the Sydney CBD only added to the tensions between Paola and the rest of the family.

Caterina’s takeover and sale of Machiavelli

126. On 22 November 1995, Machiavelli Holdings Pty Limited was incorporated, with Caterina and her then husband, Vittorio Tarchi, as directors and shareholders. Caterina held nine shares in Machiavelli Holdings, while Vittorio held one share. Subsequently, as detailed below, Caterina came to hold all ten shares in Machiavelli Holdings, becoming the sole shareholder and director.

127. Around this time, it appears that the ownership of Machiavelli was transferred from Machiavelli Ristorante to Machiavelli Holdings.

128. In December 1996, Caterina and Vittorio caused 2T Investments Pty Limited, another company of which they were the co-directors and shareholders, to purchase the Clarence Street premises for approximately $940,000. The loan to fund this purchase was guaranteed by Giovanna with the Macleay Street property provided as security.

129. Following this, either Machiavelli Ristorante or Machiavelli Holdings (probably the latter) paid rent to 2T Investments in respect of the Clarence Street premises from which Machiavelli operated and continues to operate today.

130. Caterina says that T2 Investments (not the owner or operator of Machiavelli, but the owner and lessor of the Clarence Street premises), would then pay Giovanna a substantial salary ranging from $3,000 to $7,000 per week. There is no other evidence of this before me and nothing turns on it.

131. In 2002, Vittorio resigned as a director of Machiavelli Holdings. Following this, Caterina was the sole director and shareholder of Machiavelli Holdings.

132. In 2005, Machiavelli Ristorante was deregistered.

133. Notably, in the 2013 Will, Giovanna made the following statement that evinces her understanding or belief that, as of 2013, she held some beneficial interest in both Machiavelli and the Clarence Street premises (emphasis in original):

6.   I give my interest in the restaurant (including the strata title) and the company trading as Machiavelli Restaurant to my daughter CATERINA TARCHI subject to her repaying the loan of $1.3 million referred to in paragraph 5 above. I note she holds half of the shares and half of the property in trust for me already.

134. Caterina says she does not recall entering any written or oral agreement to hold Paola’s shares in Machiavelli (the eight shares transferred from Paola to Caterina) on trust either for Paola or for “the Toppi family”.

135. Caterina also recalls several conversations between her and Giovanna prior to the purchase of the Clarence Street premises, in which Giovanna said words to the effect of:

you should purchase [the Clarence Street premises] on your own for your future.

136. This recollection is different from several unambiguous written statements from Giovanna herself within the 2013 Will, the 2017 Will, the 2018 Will, the August 2019 Will and the 2020 Will.

137. Walter’s written evidence does not help to elucidate this matter beyond the following:

… the arrangement concerning the Machiavelli Restaurant and the strata and company arrangements was a matter between my sister, Caterina, and my Mother.

138. As stated previously, Caterina is not a beneficiary of Giovanna’s estate and makes no claim for provision from it. Therefore, it is not necessary for me to resolve this issue.

139. It is also not necessary for me to recount the full history of loans advanced to Caterina and/or Machiavelli Holdings and secured against either the Macleay Street property, Giovanna’s former home in Bellevue Hill, or an apartment Giovanna once held in York Street, Sydney. For present purposes, it will suffice to note that there appears to have been a default in the repayment of one or more of those loans, which eventually necessitated the September 2012 sale of Giovanna’s former home in Bellevue Hill. Paola says that a settlement deed was subsequently entered into as between “the Toppi family” regarding the sale of Machiavelli and discharge of Giovanna’s guarantee of a loan to Machiavelli Holdings. There is simply not enough evidence before me to make findings about these matters and, as I have explained above, it is not necessary for me to do so.

140. In 2015, Caterina caused Machiavelli Holdings to sell Machiavelli to Bicher & Son Pty Ltd, a company in which Nicholae Bicher and Paul Pellarini were equal shareholders and Mr Bicher was the sole director.

141. There are conflicting accounts as to what were the proceeds of sale and how they were divided. Caterina says that upon the sale of Machiavelli, she received $450,000, plus an additional $400,000. Paola says Caterina received $550,000 on the contract plus an additional $450,000 in cash. The contract of sale is not in evidence and nothing turns on this.

142. From the sale proceeds, Caterina says she gave Giovanna $150,000 and paid $250,000 to Charlie Lo Sordo in part repayment of a $300,000 loan he had advanced to Giovanna in or around 2009, $150,000 of which Caterina understood was given or lent to Paola. There is no evidence before me concerning the loan from Mr Lo Sordo, its repayment, or any advance from Giovanna to Paola at or around this time.

143. Paola says that she received nothing from the sale of Machiavelli. Paola recalls Giovanna said that she received $70,000 or $75,000 from the proceeds of sale and that $210,000 was paid from the proceeds in reduction of a loan advanced by National Australia Bank (NAB) to Machiavelli Holdings, as secured against the Macleay Street property. Paola also says it was Caterina who owed $300,000 to Mr Lo Sordo, not Giovanna.

144. The most reliable evidence before me on this matter are written statements attributed to Giovanna during her lifetime. These include the 2017 Statement accompanying the 2017 Will, and statements within the 2018 Will, which certainly convey that Giovanna felt betrayed by the way in which Caterina had “taken over” Machiavelli and that Caterina and Giovanna were estranged for “years” at some stage prior to December 2017. Caterina says that she was not estranged from Giovanna but admits that Giovanna was upset that she sold Machiavelli. In light of Giovanna’s strong temperament, I am content to rely on Giovanna’s view of their relationship at that time.

145. By way of example, the 2018 Will includes the following:

11.   The reason I have removed Catarina Tarchi as a beneficiary from of my will is because she is a very rich woman and she has made herself rich through my hard work. In particular:

a.   she kept my interest in the business known as Machiavelli Restaurant when she sold it;

b.   I guaranteed loans for her and her husband, as a result of which I lost my home.

c.   She did not pay me properly for the work I did at the restaurant either as an owner or as an employee. I was never paid superannuation nor long service leave.

d.   She used the profits of the business to buy and pay off the loan on the strata freehold from which the business operated and still operates today.

e.   As a result I consider she has been properly and adequately provided for during her lifetime.

146. While these matters are relevant background and provide useful insight into the dynamics of the Toppi family, they have no real bearing on the central question I am required to determine of whether adequate provision has been made for Paola in the 2020 Will.

500 George Street

147. Paola gives evidence that in 1992, at her request, Giovanna provided her with a bank guarantee of $250,000 for the development of 500 George Street, Sydney. Paola says that it was repaid within 6 weeks, and she paid $5,000 per week to Giovanna for the duration of the development over two years. There is no documentary evidence of these payments.

148. Walter says that he was aware of this bank guarantee and that Giovanna told him that in addition to it she provided “hundreds of thousands in cash” to Paola of which Paola only repaid half.

149. It is difficult to determine where the truth lies in relation to this event, but it does demonstrate Giovanna’s propensity to provide substantial sums of money to Paola to support her business ventures.

Hospitality Placements

150. In June 1996, Hospitality Placements Pty Ltd was incorporated with Paola as its sole shareholder and director. The principal business of Hospitality Placements was the provision of employment services in the hospitality industry. As indicated below, Hospitality Placements was a source of sporadic payments made to Giovanna for a period of time in 2018–2019.

151. Hospitality Placements was operated by Paola until it went into administration on 19 February 2024 having generated trading losses in the previous years, which Paola attributed to the impact of the COVID-19 pandemic.

Luxe Studios

152. In about 2005 or 2006, Paola entered into business with an acquaintance, Delores Lavin. Each were directors of, and equal shareholders in, a company, Luxe Studios Pty Ltd, which purchased and renovated a property situated in Liverpool Street, Sydney (Liverpool Street property).

153. The result of this venture was that by October 2008, a debt owing to NAB in the amount of $7,768,000 was guaranteed joint and severally by various parties including Paola, Neil and Delores. Luxe Studios went into receivership in 2009, the Liverpool Street property was sold in 2010 and NAB sought to enforce the guarantees with respect to the shortfall.

154. The full history of the matter is well-summarised in the litigation which followed. It is not necessary for me to repeat it: Lavin v Toppi (2014) 87 NSWLR 159; [2014] NSWCA 160; Lavin v Toppi (2015) 254 CLR 459: [2015] HCA 4. It is, however, not lost on me that the subject matter of that litigation was one seeking contribution in equity as against a co-guarantor, the same form of obligation under which Paola is said to be liable to Giovanna’s estate and which Paola seeks to be forgiven as part of her claim for provision (T21 and T49).

155. For present purposes, it will suffice to say that the failure of Luxe Studios severely dented Paola and Neil’s finances (T40) and resulted in the 2011 sale of their home in Potts Point (Wylde Street property) to discharge their obligations as guarantors to NAB (T51). Paola and Neil have lived in rented accommodation ever since.

Purported loan from Giovanna to Paola

156. Caterina says that in 2009, she was present when Giovanna asked to borrow $300,000 from Mr Lo Sordo to help with Paola’s debts and that Giovanna later told her that she had lent $150,000 of that amount to Paola. Paola denies this ever occurred.

157. Neither Caterina nor Paola was challenged on their respective versions of this alleged event. It is unnecessary for me to make a finding in relation to it as there is ample other evidence of Giovanna providing financial support to Paola across many years.

Café 29

158. After Luxe Studios closed in 2010, Paola had no income. She opened “Café 29” at Potts Point for a year’s trial to see if she could get a liquor licence but was unsuccessful. During 2011, Giovanna assisted Paola by paying her rent for four months. Paola asserts that she repaid her mother for this assistance.

159. Caterina says that the source of Giovanna’s assistance to Paola at this time were additional payments of $1,000 per week that Machiavelli made to Giovanna. Caterina says that she does not know if Paola repaid the money to Giovanna.

Polleria

160. Walter gave evidence that, shortly before the opening of “Sciue Sciue Ristorante Italiano” in 2013 (addressed in more detail below), Paola opened a chicken shop known as “Polleria”, which operated from Shop One of the Macleay Street property. Walter says the business failed shortly after and recalls a conversation with Giovanna around the time of its closure during which his mother said words to the following effect:

Paola’s business is in trouble. There are all these vendors that she has not paid, and the business is closing. Caterina and I have paid hundreds of thousands of dollars to help her.

161. Paola denies that either Giovanna or Caterina paid “hundreds of thousands of dollars” to help her at this time. She says Polleria was Walter’s idea and that, as she was not working at the time, she agreed to “front” the business. Paola says the business operated for eight months, did not pay rent to Giovanna during this time and did not return a profit. Paola says that Caterina paid $10,000, and recalls the largest creditor was in the order of $6,600.

162. Caterina does not give evidence about Polleria nor the payment of any vendors on Paola’s behalf. Caterina also gave evidence that she was experiencing financial difficulties from about September 2008, and these persisted such that she was unable to assist Giovanna financially prior to the 2012 sale of Giovanna’s former home in Bellevue Hill.

163. Neither Walter nor Paola embroider the failure of Polleria with any useful detail; only that it occurred sometime prior to the opening of Sciue Sciue. Their respective assertions about Polleria – including any assistance that may or may not have been provided to Paola by Giovanna at this time – are not supported by any other evidence.

164. The state of the evidence is such that I am unable to rely on it or make any findings concerning Polleria, including any support that may or may not have been given to Paola by Giovanna at this time.

Sciue Sciue

165. In or around November 2013, with the encouragement of Giovanna, Paola decided to open a new restaurant in Double Bay by the name of Sciue Sciue. Giovanna was the one who located the Double Bay premises as the potential site for the restaurant.

166. Around this time, Sciue Sciue Pty Ltd, a company which is mentioned above and of which Paola and Giovanna were the directors and shareholders, was incorporated.

167. Giovanna assisted Paola in the negotiation of, and signed, the lease for the Double Bay premises from which Sciue Sciue operated.

168. Giovanna also borrowed $150,000 from Neolite Neon Pty Ltd, secured by way of mortgage over the Macleay Street property. These funds were used to renovate and fit out the Double Bay premises for Sciue Sciue. Notably, this loan was guaranteed by Machiavelli Holdings with the guarantee executed by Caterina in her capacity as director of that entity and secured by a charge over Machiavelli Holdings and its assets. How this form of security came about, given the strained and perhaps broken relationship between Paola and Caterina, is not clear on the evidence before me.

169. The evidence that is before me suggests that 2013 was a comparatively harmonious year for Paola and Giovanna and that they were, at this time, on good terms. So much is clear from the level of assistance provided by Giovanna to Paola in respect of Sciue Sciue, as well as Paola’s appointment, on 30 December 2013, as Giovanna’s enduring power of attorney and enduring guardian. That the pair were on concordant terms is also reflected in the 2013 Will.

170. Sciue Sciue commenced trading in early 2014. Its opening heralded the creation of Paola’s new signature dish, Tagliatelle Sciue Sciue, and the restaurant was seemingly an “immediate” success.

171. Paola gave evidence that she repaid the loan to Giovanna in respect of Sciue Sciue in 2017.

172. During cross-examination, Paola maintained the loan was repaid within “three years” (T51). Paola referred to Giovanna’s assistance in the nature only of a “guarantee” (T51–52). The loan agreement is, however, in evidence and it names Giovanna as the borrower of the funds.

173. Caterina says it is her understanding that Paola did not contribute to the repayment of the loan in respect of Sciue Sciue. Caterina gave evidence of a conversation she had with Giovanna during which the latter purportedly made complaints to this effect. That conversation is said to have occurred at or around the time Sciue Sciue opened. Evidence of a conversation which is said to have occurred in early 2014 has no bearing on Paola’s assertion that she repaid those funds in or around 2017.

174. In or around February 2018, Sciue Sciue ceased trading as Paola was devoting her time to her next venture (again, together with Giovanna) and, according to Paola, the clientele of Sciue Sciue followed her (or, most likely, both of them) there.

Bar Machiavelli

175. In 2015, Giovanna commenced haemodialysis treatment, which resulted in her experiencing reduced mobility.

176. In or around November 2015, on the back of the success of Sciue Sciue at that time, Giovanna and Paola discussed opening another restaurant at 10 Neild Avenue, Rushcutters Bay (Neild Avenue premises) and made enquiries in pursuit of that endeavour. The lessor of the Neild Avenue premises was WFM Motors Pty Ltd.

177. The Neild Avenue premises had been vacant for some time, previously having seen at least two high-profile restaurants fail to prosper. Consequently, during a meeting attended by both Giovanna and Paola with the leasing agent of the Neild Avenue premises, that agent expressed some reluctance on behalf of the lessor (or, more accurately, Nicholas Politis in his capacity as a director and shareholder of the lessor) to enter another lease with a restaurant business.

178. Despite this, Giovanna and Paola persisted and submitted an offer to lease the Neild Avenue premises. As it happened, Mr Politis was a customer of Sciue Sciue and, according to Paola, accepted the offer only because it was Paola and Giovanna who had made it.

179. Eventually, Mr Bicher and Mr Pellarini, the new proprietors of Machiavelli, also became involved in the plan to open this restaurant together with Giovanna and Paola. This restaurant was to be a “sister” restaurant of Machiavelli to operate under the name of “Bar Machiavelli”.

180. As mentioned above, and discussed in more detail below, the establishment of Bar Machiavelli proved to be a significant catalyst in the final breakdown of the relationship between Paola and Giovanna.

181. In a relationship I have found to be characterised by tumultuous fallings out followed by periods of reconciliation, the establishment and eventual failure of Bar Machiavelli proved to be totally ruinous of the bond between mother and daughter or, at least, any outward expression of the love and affection which ordinarily attends that relationship. In the events that followed, communication between the pair largely ceased and the proverbial “battle lines” were drawn. Sadly, the resulting rift proved permanent, punctuated only by the death of Giovanna.

(g)   The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].

(h) Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

476. I am also minded to observe the following from Hampson v Hampson [2010] NSWCA 359, where Campbell JA (with whom Giles JA and Handley AJA agreed) stated at [80] (emphasis in original):

The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.

477. By way of summary, while the nature of the estrangement and the underlying reason for it are relevant to an application for provision, estrangement of itself is not determinative of the application. It does not, without more, disentitle the applicant from provision, nor does it automatically justify their exclusion from the bounty of the estate. There is no presumptive right of testamentary entitlement for offspring in this jurisdiction, nor is there any presumptive right to disinherit in cases of estrangement: Underwood v Gaudron [2015] NSWCA 269, Basten JA (with whom Macfarlan and Ward JJA agreed) at [73].

478. If any provision is to be made, estrangement between the applicant and the deceased may operate to reduce the applicant’s claim on the deceased’s estate or “restrain amplitude in the provision to be made”: Underwood, Hallen J at [231(g)]; Pulitano v Pulitano [2019] NSWSC 1688, Henry J at [250], citing Keep v Bourke [2012] NSWCA 64, Macfarlan JA at [49].

479. However, estrangement between an applicant and the deceased person is but one factor to be taken into consideration and, where the negative consequences of the estrangement are kept within reasonable bounds, it is not to be “given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience”: Andrew, Basten JA at [40].

480. As a matter of ordinary expression, the state of being “estranged” connotes a condition or situation which has persisted at least for a period of some length: Oxford English Dictionary, online 2^nd ed, May 2025. There has been suggestion among some of the authorities cited above of some differentiation between instances of “temporary” or “short-term” estrangements, such as where an otherwise long and loving relationship between a parent and child has been “ruptured shortly prior to death” on one hand, with instances of “longstanding” or “long-term” estrangement on the other: see, for example, Georgopoulos v Tsiokanis [2022] NSWSC 563, Hallen J at [157]–[158]; Underwood, Hallen J at [73]. There is no clear dividing line between these vague descriptors – which are in any event relative terms – and in circumstances where both situations would likely be relevant to the nature or duration the applicant’s relationship with the deceased, and because each case is confined to its own facts, the utility of any label or sub-category of estrangement relative to its length appears limited.

481. In a similar vein, the use of the term “estrangement” generally in family provision cases is not without controversy. In that regard, in Rada v Smith [2024] NSWSC 273, Kunc J at [26]–[28] said:

[26] However, I do not wish to leave this topic without making a more general observation. In my view, “estrangement” should be banished from the family provision lexicon as some kind of freestanding, established consideration. It has come to be treated as though it appears as one of the matters specified in s 60(2) of the Act.

[27]   I respectfully add my voice to other judicial expressions of caution about the utility of the term. It assumes what it seeks to prove. It is a word already loaded with moral obloquy which risks diverting the Court and the parties into an ultimately fruitless attempt to assign blame for conduct which took place long ago, often in emotional circumstances, and in a context which is impossible to recreate years later in a way that is both fair and proportionate to its ultimate importance to the outcome of a given case. Obviously one of the fundamental difficulties with that task is the necessary unavailability of one of the protagonists to give evidence.

[28]   “Estrangement” should be replaced with the neutral expression “lack of contact”. As such, it falls within at least sub-sections 60(2)(m) and (p) of the Act. So understood, it invites a factually more objective inquiry in the sense of ascertaining what contact there was or was not. To the extent that the reasons for the lack of contact need to be explored, the experience of the Court is that, generally, only the most egregious conduct on the part of either the deceased or the applicant will have any impact on the multifactorial discretionary exercise in which the Court is engaged. And only in the most extreme cases will it be decisive of the outcome. In the vast majority of cases it will have no impact because the Court understands that disagreements, moments of irritation, and words said in haste and repented at leisure are an ordinary incident of family life.

482. Although I have used the words “estrangement” and “estranged” in this judgment, I do so in accordance with the established principles that it is not a freestanding criterion in the Act. It is simply part of the objective assessment of the nature and duration of the applicant’s relationship with the deceased, as well as any other matter the court considers relevant in existence at the time of the deceased person’s death in accordance with s 60(2)(a) and (p) of the Act, respectively.

Paola’s submissions

483. In summary, Paola submits:

1. As the daughter of Giovanna, she is an “eligible person” under s 57(1)(c) of the Act.

2. The 2020 Will effectively made no provision for Paola.

3. Paola and Giovanna enjoyed a long and close relationship until the WFM proceedings.

4. Although Paola was financially successful at earlier times in her life, circumstances (largely beyond her control) have left Paola with essentially no assets of any real value, minimal amounts in savings and larger debts. Paola’s expenses are in excess of her income. Paola has very limited ability to ameliorate her financial position given her age.

5. Paola seeks relief from the contribution said to be owing to Giovanna’s estate by Paola as co-guarantor of the WFM Loan and her liability to the estate for the unquantified costs orders that have been made against her in favour of Giovanna’s estate in these proceedings.

6. In addition to those releases, Paola also seeks provision in the form of a payment to her of $750,000.

Walter’s submissions

484. In summary, Walter submits:

1. There is good reason to conclude that Giovanna soundly exercised her right of testamentary disposition having regard to Walter’s evident needs, the modest size of the estate and the financial assistance she had provided to Paola over many years.

2. Giovanna was entitled to have regard to Paola’s decision to terminate contact with her, which became more consequential with Giovanna’s declining health.

3. Paola has received significant benefits from Giovanna.

4. Paola has caused prejudice to Giovanna’s estate, by exposing it to the claims in the WFM proceedings and the costs of defending the discontinued probate claim in these proceedings.

5. What is left of Giovanna’s estate should pass to Walter having regard to his serious ongoing needs and the care that he provided to Giovanna.

6. Paola failed to provide full disclosure of her financial position, which means that the court cannot undertake the evaluative assessment required under s 60 of the Act.

Consideration

485. It is uncontroversial that, as a child of Giovanna, Paola is an “eligible person” within the meaning of s 57(1)(c) of the Act and, by virtue of ss 57(1) and 59(1)(a) of the Act, has standing to apply for a family provision order.

486. The distinct but related questions raised by ss 59(1)(c) and 59(2) of the Act require me to determine whether Paola has been left without adequate provision for her proper maintenance, education or advancement in life and, if so, what provision “ought to be made” for her. In addressing these issues, the court may have regard to the matters set out in s 60(2) of the Act, being matters which “may have a resonance in these proceedings, although not in a determinative way”: Alexiou, Lindsay J at [85].

487. The starting point of this analysis is, of course, that under the 2020 Will Giovanna only left Paola with shares in Cara Nonna (formerly, G & P Toppi) and Hospitality Placements, both of which subsequently proved to be worthless. It was agreed between the parties for the purposes of these proceedings that I should attribute no value to those shares. The 2020 Will, therefore, made no provision for the proper maintenance, education or advancement in life of Paola.

488. I will now turn to consideration each of the relevant factors contained in s 60(2) of the Act, to the extent that they are applicable.

Section 60(2)(a) of the Act: any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship

489. As I have found above, there was a longstanding and fluctuating relationship between Giovanna and Paola, in which arguments and difficulties were replaced with reconciliation and support for each other on numerous occasions throughout Giovanna’s life. These crests and troughs were closely tied to the fortunes of the businesses in which they were involved.

490. My regard to the totality of the relationship between Paola and Giovanna is, in many ways, satisfied in an overall and fairly broad-brush way. Their relationship was tumultuous, and at times tempestuous, but for much of Giovanna’s life the overwhelming inference is that their relationship could be characterised as one driven by the love and affection which typically attends that of a mother and daughter. That said, consideration of the details of their relationship has been necessary in this case as the sad fact is that the pair had a complete relationship breakdown some two years before Giovanna’s death.

491. Paola provided financial assistance to Giovanna for many years in the form of weekly wages, although mostly that assistance came from restaurant businesses in which Giovanna was financially and practically involved.

492. I accept that Paola loved her mother. They were, at times, closer than many adult children experience with a parent. I also accept that before their relationship broke down, Paola contacted Giovanna regularly. There can be no doubt that the events surrounding the WFM Loan led to the irretrievable breakdown of their relationship in about August 2019, with a cessation of all contact in 2020. Paola was very angry at Giovanna in relation to the WFM Loan and, more specifically, the circumstances in which Giovanna came to dispute her liability under it. Giovanna expressed her own anger towards Paola at various times, as seen in the 2017 Statement accompanying the 2017 Will, and in the 2020 Will.

493. The depths of Paola’s estrangement from Giovanna in the final years of Giovanna’s life are starkly captured in Paola’s email of 18 June 2021 in which she expressed the desire for Giovanna to die so that she could “frustrate the probate”. Her failure to visit Giovanna in the hospital and speak to her in her final days confirms the full extent of Paola’s adverse feelings for her mother at that time.

494. But I do not find that either Paola or Giovanna was solely at fault for the disintegration of their relationship.

495. I must also take particular account that the relationship fracture was for a relatively short period of Giovanna’s life. Unfortunately, it encompassed the end of Giovanna’s life as well, which gives a strong emotional component to it.

496. While their estrangement is a relevant factual matter for my consideration, I have approached the matter with caution given the surrounding circumstances of their estrangement which can fairly be described as exceptional, as well as the nature and duration of their relationship prior to it.

Section 60(2)(b) of the Act: the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate

497. Applying the principles outlined in Camernik, Giovanna did not owe any continuing obligations or responsibilities to Paola as her adult child who has been married to Neil for more than 35 years. Prior to Giovanna’s death, it would appear that Paola and Neil were able to provide for themselves to meet all of their living expenses. Subsequent to Giovanna’s death, the circumstances of Paola and Neil have declined significantly though.

498. Walter, on the other hand, remained a dependent of Giovanna for the whole of his life. As Camernik reminds me, the community will usually expect Giovanna as the parent to make provision to fulfil that ongoing dependency after her death.

Section 60(2)(c) of the Act: the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

499. The net value of Giovanna’s estate as at 13 February 2025 was $2,376,155.61, made up as follows:

1. Assets totalling $2,657,691.17 comprising:

1. Giovanna’s WBC account: $1,510,264.27 plus interest.

2. Loan owing by Mr Bicher (contingent as Mr Bicher has indicated that he is unable to pay): $159,800.

3. Contribution owing by Paola as co-guarantor with Giovanna of the WFM Loan, which is said by Walter to be in the order of $967,626.90.

4. Household contents, furniture and personal effects: $20,000.

2. Liabilities totalling $281,535.56 (part of which includes estimates) comprising:

1. Car loan: $40,524.16.

2. Amounts owing to LRS (including an estimate for these proceedings): $45,843.55.

3. Hospital and medical expenses: $24,255.65.

4. Telstra: $933.20.

5. AGL: $286.46.

6. Taxation: $169,692.54.

500. No claim for a notional estate was made in the proceedings.

501. Given that Paola’s liabilities are well in excess of her assets, in my assessment it is very unlikely that there will be any recovery of the $967,626.90 for which Walter contends Paola is liable in equity to Giovanna’s estate as co-guarantor of the WFM Loan.

Section 60(2)(d) of the Act: the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate

502. Paola’s evidence did not make the task of understanding her financial position particularly easy. A real difficulty was her failure to grasp the difference between her personal financial position and the financial position of entities with which she is associated. Mr Beazley (who appeared for Paola) had the same difficulty.

503. In summary, I consider that Paola’s liabilities well outweigh her assets, and her income is exceeded by her expenses. Paola is clearly in a poor financial state in a manner that Giovanna did not anticipate prior to her death. Paola clearly has financial needs and does not have any superannuation. Paola does, however, have the capacity to work as a chef and a business proprietor well into her seventies.

504. Walter has very significant needs. He presently has no earning capacity by reason of his ill-health and poor employment history. Throughout Giovanna’s life, Walter was dependent on her to pay for his living expenses. He is now completely reliant on welfare payments and a loan from Caterina to pay his living expenses. He needs medical treatment to address his health issues and his gambling addiction but cannot afford to undertake it.

Section 60(2)(e) of the Act: if the applicant is cohabiting with another person—the financial circumstances of the other person

505. Paola lives with Neil in rented accommodation. Neil appears to have no significant assets and no income. He is of no financial assistance to Paola.

Section 60(2)(f) of the Act: any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

506. Paola is in good health for her age apart from dental work which Paola asserts she requires.

507. As indicated above, Walter is afflicted with mental and physical health issues which require treatment he cannot afford.

Section 60(2)(g) of the Act: the age of the applicant when the application is being considered

508. Paola is currently 61 years old, with an expectation of continuing to work as a chef and business proprietor “well into her 70s” but notes the physical limitation of not being able to work as long hours as she once did.

Section 60(2)(h) of the Act: any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

509. In a generalised sense, Paola has assisted in the acquisition of Giovanna’s estate by being involved in business together with her at various times since Machiavelli. Paola also arranged, through businesses such as Bar Machiavelli and Bar M, for Giovanna to be paid substantial wages.

510. But Paola has also been a source of the significant depletion of Giovanna’s estate in two ways.

511. First, through failing to make any contribution as co-guarantor of the WFM Loan, which caused Giovanna to meet the whole of that judgment debt, plus costs and unpaid rent totalling $1,935,254.44 from the sale proceeds of the Macleay Street property following the judgment in the WFM proceedings. As noted previously, while this amount includes approximately $399,322.24 in payment of WFM’s costs of the WFM proceedings, Paola did not make any submissions to the effect that her liability in equity as co-guarantor would not be equal to that of Giovanna.

509. Secondly, by causing Giovanna’s estate to incur wasted legal costs and disbursements leading up to the vacation of the trial in these proceedings before Pike J, in circumstances where Walter claims the wasted costs are likely to exceed $370,000.

510. As mentioned earlier, on 29 October 2024, Pike J ordered Paola to pay those costs, with liberty reserved for Walter to apply at the conclusion of these proceedings to seek the ordered costs on the indemnity basis: Toppi v Toppi (No 2) [2024] NSWSC 1363.

511. These extant costs orders can be distinguished from the cost consequences of the present proceedings, with the latter yet to be determined. I have had no regard to the potential costs consequences of these proceedings in my determination of Paola’s claim for provision: Chalik v Chalik [2025] NSWCA 136, Bell CJ, Payne and Free JJA at [123] and [126]–[127].

Section 60(2)(i) of the Act: any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

515. Giovanna made significant and ample financial contributions to Paola during her lifetime. Giovanna regularly provided either premises, guarantees, or entered into loans or leases to support the businesses that Paola undertook, as demonstrated in relation to 500 George Street, Café 29, Polleria, Sciue Sciue, Bar Machiavelli and Bar M. Giovanna put herself at risk, to her own financial detriment, for the benefit of Paola on numerous occasions, one of which was the guarantee for the WFM Loan which ultimately caused their relationship to breakdown.

516. Giovanna also made provision for Paola from her estate of the shares in Cara Nonna and Hospitality Placements, but it is agreed that these shares have no value.

Section 60(2)(j) of the Act: any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

517. Giovanna made numerous wills which varied in the provision made for Paola. Paola went from sharing equally in Giovanna’s estate with Walter (in the 2013 Will, the 2018 Will and the January 2019 Will) to only being left Giovanna’s shares in various companies being Cara Nonna (formerly, G & P Toppi), Sciue Sciue Pty Ltd, Tridevco and Hospitality Placements (in the 2017 Will, the August 2019 Will and the 2020 Will) and the release of Paola from liability as co-guarantor of the WFM Loan (the August 2019 Will).

518. The 2017 Statement accompanying the 2017 Will demonstrates that Giovanna regarded Paola as intelligent, financially savvy and capable of establishing a strong financial future, while she considered Walter to have considerable needs that she had a strong moral obligation to meet. The 2017 Statement also serves to highlight the disagreements between Giovanna and Paola and the distress caused to Giovanna by them from time to time.

Section 60(2)(k) of the Act: whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

519. Paola was not being maintained by Giovanna in the years immediately before Giovanna’s death, but during her life Giovanna provided guarantees and loan funds for businesses and rental assistance to Paola for a short period.

Section 60(2)(m) of the Act: the character and conduct of the applicant before and after the date of the death of the deceased person

520. I need do no more than repeat the matters I have set out above in relation to the relationship between Giovanna and Paola and the circumstances of their estrangement.

Section 60(2)(n) of the Act: the conduct of any other person before and after the date of the death of the deceased person

521. I consider that it is relevant that Walter received just over $800,000 from Giovanna through payments made in the days before her death which he says were authorised by her and which he no longer has because it is likely that he lost that money gambling.

Section 60(2)(p) of the Act: any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

522. Any provision made for Paola will necessarily come at the expense of Walter and will operate as a departure from the deliberate testamentary intention of Giovanna: Broadus, Lindsay J at [2], citing Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, White J at [127] as approved in Sgro v Thompson [2017] NSWCA 326, White JA (with whom McColl and Payne JJA agreed) at [83]–[87].

523. During cross examination, Paola (T30–31 and T41–42):

1. accepted that Walter should receive at least half of the estate (T30);

2. accepted that Giovanna wanted to look after Walter, including by providing him with money to buy a property (T30);

3. said that Giovanna was concerned about Walter’s “ability to waste money” and accepted that Giovanna wanted to protect Walter against that possibility (T31);

4. said that she had “hundreds” of conversations with Giovanna about Giovanna’s wishes, including conversations in which Giovanna had said she “wanted to wipe him out of the will” – which Paola advised against – and lots of conversations in which Giovanna said to Paola that she wanted Walter to be looked after (T31); and

5. accepted that Walter had a need for accommodation and that Walter’s employment history was very poor (T41–42).

524. I have also had regard to the enduring care which Walter provided to Giovanna over many years prior to her death.

Conclusion

525. In my opinion, adequate provision for the proper maintenance, education or advancement in life of Paola as the adult child of Giovanna was not made by the 2020 Will. The 2020 Will only left Paola with shares in two companies that are now accepted to be valueless. The 2020 Will was made amid a serious breakdown in the relationship between Paola and Giovanna, which was caused by the circumstances surrounding the WFM Loan and the WFM proceedings. That breakdown undoubtedly had a significant influence on Giovanna’s testamentary intentions at that time. Giovanna did not survive to see the outcome of those proceedings. Absent the breakdown in their relationship, Giovanna had previously provided Paola with a release of liability for the guarantee for the WFM Loan (in the August 2019 Will) and, prior to that, with 50% of the estate to share with Walter (in the 2013 Will, the 2018 Will and the January 2019 Will).

526. Paola is now in a significantly diminished financial position where she has a lack of assets to meet her liabilities and insufficient income to meet her expenses. She has no superannuation and little prospect of recovering any funds she invested into Toppi Martin Place. This is a long way below what Giovanna would ever have envisaged for her daughter, whether at the time of 2020 Will or upon her death in November 2021. It is certainly not in keeping with Giovanna’s assessment of Paola’s circumstances and prospects in the 2017 Statement accompanying the 2017 Will.

527. I also consider that Walter’s needs are considerably greater than Paola’s needs, given that he has no assets, no present ability to earn any income and is completely reliant on welfare and loans funds from Caterina to meet his living expenses. Paola, on the other hand, accepts that she is still able to work as a chef to earn income “well into her 70s”.

528. Walter also provided significant daily care to Giovanna, when Paola did not. Walter’s caring burden increased after Giovanna’s mobility declined when she commenced haemodialysis treatment in 2015 and became more significant when she was required to use a wheelchair in the three years prior to her death. During this latter period, Paola ceased to have any contact with Giovanna. Any award of provision must balance these factors.

529. I am conscious that Paola has had significant financial provision made for her from Giovanna during her life, including by way of the guarantee and posthumous repayment of the WFM Loan. But I must balance this by taking into account that, for many years, Paola ensured that Giovanna was provided with weekly sums of money from their restaurant businesses to meet her living expenses, much of which was for the benefit of Walter because he was living rent free with Giovanna throughout that time.

530. The net value of Giovanna’s estate is $2,376,155.61, principally comprising Giovanna’s WBC account ($1,510,264.27 plus interest) and the contribution said to be owing by Paola as co-guarantor of the WFM Loan ($967,626.90). In my view, the contribution owing by Paola is likely to be irrecoverable by Giovanna’s estate in light of Paola’s dire financial position. It is also an amount which I consider Giovanna would have released had she ever have conceived of Paola’s dire financial position at the present time.

531. This leaves the amount in Giovanna’s WBC account of $1,510,264.27. In my view, Walter’s needs are greater than Paola’s needs and Paola has a much greater capacity to earn income than Walter does. If I adopt the position that they should share in Giovanna’s estate relative to their needs and financial positions, I consider that Walter should receive a two-third share of the amount in Giovanna’s WBC account and Paola should receive one-third share of the amount in Giovanna’s WBC account.

532. From this amount, Paola will have to meet any liability that she has incurred for the as yet unquantified costs orders that have already been made against her in favour of Giovanna’s estate in these proceedings. Those are liabilities which Paola has brought upon herself by her conduct of these proceedings, and which have diminished Giovanna’s estate.

533. Undertaking the evaluative judgment required of me, I consider that a wise and just testatrix in the position of Giovanna, in light of all the circumstances of the case as now known and having regard to current social conditions and standards, and consulting the criteria set out in s 60(2) of the Act, would determine that Paola ought to receive out of Giovanna’s estate the following provision:

1. The release by both the estate of Giovanna and Walter (as executor) of Paola from all liability to the estate on account of Giovanna’s right to contribution as co-guarantor of the liabilities of Bar M Pty Ltd to WFM Motors Pty Ltd.

2. A payment in the amount of $500,000, less any amount that Paola is to pay to Giovanna’s estate following the resolution of the issue of costs in these proceedings.

534. The issue of costs in these proceedings not only involves the determination of an appropriate costs order in respect of Paola’s application for a family provision order that I have decided but also includes each of the following:

1. The order made on 29 October 2024 by Pike J that Paola pay, on the ordinary basis, Walter’s costs of the proceedings other than to the extent they relate solely to a claim for a family provision order, with liberty for Walter to apply, at the conclusion of these proceedings, that those costs be payable on the indemnity basis: Toppi v Toppi (No 2) [2024] NSWSC 1363.

2. The order made on 16 April 2025 by me that Paola pay the costs of Walter of the notices of motion filed 7 and 16 April 2025, including with respect to the hearings on 5 March 2025 and 16 April 2025, with liberty for Walter to apply for those costs be paid on an indemnity basis and/or be the subject of a special costs order.

535. Until those costs are determined, no payment of the provision should be made to Paola. I am especially mindful that the issue of determining costs should not, however, hold up any interim distribution of Giovanna’s estate to Walter and I will order an appropriate amount be paid on the application of Walter.

Observations about costs

536. In relation to the issue of costs, it is of particular concern to me that the collective costs which have been incurred by both Paola and Walter in these proceedings is an amount exceeding $950,000. Walter alone has spent something in the order of $800,000, and Paola estimated her costs at the time of the 17–19 February hearing to be about $146,000. The amount of costs incurred by both parties in relation to the application to reopen has not yet been disclosed to me, but it is likely to take the total costs to an amount in excess of $1 million. I consider that costs of this magnitude are outrageously disproportionate to the value of Giovanna’s estate.

Careful consideration by Walter

537. While it is not a matter for me to determine, given the evidence provided by Walter in these proceedings and my findings in respect of the transactions conducted on Giovanna’s WBC account in her final days, I sincerely hope that Walter will carefully consider the form of distribution of the rest of Giovanna’s estate to him, or that those whom he instructs will advise him accordingly, consistent with their obligation to act in his best interests.

ORDERS

538. The orders I propose to make are:

1. The parties are to email the Associate to McGrath J a set of agreed short minutes of order to give effect to this judgment by 4pm on 17 July 2025, failing which they are to provide competing submissions of not more than five pages (12 font, 1.5 spacing) with proposed short minutes of order and any material on which they rely by 24 July 2025.

2. The proceedings are listed for directions on a convenient date to be determined in respect of any application the defendant wishes to make for indemnity costs and/or a special costs order.

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Decision last updated: 10 July 2025