AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Supreme Court of New South Wales
You are here:  AustLII >> Databases >> Supreme Court of New South Wales >> 2011 >> [2011] NSWSC 61

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Palagiano v Mankarios [2011] NSWSC 61 (22 February 2011)

[AustLII] Supreme Court of New South Wales Decisions

[Index] [Search] [Download] [Help]

Palagiano v Mankarios [2011] NSWSC 61 (22 February 2011)

Last Updated: 27 May 2011



Supreme Court

New South Wales

Case Title:
Palagiano v Mankarios


Medium Neutral Citation:


Hearing Date(s):


Decision Date:
22 February 2011


Jurisdiction:


Before:
White J


Decision:
For these reasons I order that provision be made out of the estate of the late Pietro Palagiano in favour of the first plaintiff in the sum of $180,000.
I order that provision be made out of the estate of the late Pietro Palagiano in favour of the second plaintiff in the sum of $100,000.
I order that interest on such sums be payable at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898 as the rate of interest on legacies and that such interest be payable from the date which is 30 days after the date of these orders until the date of payment.
I order that the plaintiffs' claims be otherwise dismissed.
Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules .
I will hear the parties on costs.


Catchwords:
ESTOPPEL - proprietary estoppel - expectation of inheriting share of estate - contribution of wages to family finances - deceased making representations that claimants would inherit equal share in family home - whether executrix estopped from denying claimants had beneficial interest in family home - whether sufficiently clear and unequivocal representation - whether claimants had to show they assumed that deceased was not free to withdraw from promise or assurance - whether steps taken to plaintiffs' detriment were taken in reliance on representation that they would acquire equal share in family home - whether suffered detriment by leaving school and contributing wages to family finances

SUCCESSION - family provision - proper maintenance and advancement in life - Family Provision Act 1982, ss 7 and 9(2) - claims by adult sons - whether adequate provision for proper maintenance and advancement in life - contribution of wages to family finances - assessment at date of hearing not date of death


Legislation Cited:


Cases Cited:
Watson v Foxman (1995) 49 NSWLR 315
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 Thorner v Major [2009] UKHL 18; [2009] 3 All ER 945
Gillett v Holt [2000] EWCA Civ 66; [2001] Ch 210; [2000] 2 All ER 289
Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387
EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Mayfield v Lloyd-Williams [2004] NSWSC 419
Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1


Texts Cited:


Category:
Principal judgment


Parties:
Antonio Palagiano (1st Plaintiff)
Joseph Palagiano (2nd Plaintiff)
Chiara Mankarios (Defendant)


Representation


- Counsel:
Counsel:
M S Willmott SC with F Maghami (Plaintiffs)
B Skinner (Defendant)


- Solicitors:
Solicitors:
Butlers Will Dispute Lawyers (Plaintiffs)
Eakin McCaffery Cox (Defendant)


File number(s):
2010/62712

Publication Restriction:

Judgment


  1. These proceedings concern the estate of Pietro Palagiano who died on 28 February 2009 aged 76. He survived his wife, Lucia Palagiano, who died on 3 June 2007.
  2. Pietro Palagiano was survived by two sons (Antonio and Joseph) and a daughter (Chiara Mankarios). By his will made on 6 October 2007 the deceased appointed his daughter Chiara his executrix and left her of all his estate. In his will he said:

" I have made the decision to leave the whole of my estate to my daughter namely, Chiara Mankarios as she has helped me and looked after me on a daily basis and attended to all my needs. "


The principal asset of the estate is the former family home in Mathewson Street, Hillsdale (the "Hillsdale property"). Its agreed value at the time of hearing was between $950,000 and $1,000,000.


  1. The plaintiffs are Pietro Palagiano's sons. The defendant is Chiara Mankarios. The plaintiffs claim a declaration that the defendant holds the Hillsdale property on trust for herself, and the two plaintiffs in equal shares. In the alternative, the plaintiffs seek an order pursuant to s 7 of the Family Provision Act 1982 that provision be made for them out of the estate.
  2. In these reasons, for ease of reading and intending no disrespect, I will call the first plaintiff, Antonio Palagiano, "Tony", the second plaintiff, Joseph Palagiano, "Joseph", and Chiara Mankarios "Chiara". That is how they were referred to in the evidence.

Background


  1. The family emigrated to Australia from Italy in about November 1969. At that time Mr and Mrs Palagiano were aged 37 and 32 respectively. Tony was aged 12, Joseph nine and Chiara seven. After a few months they moved to Malabar. The family had few, if any, savings. Mr Palagiano worked with General Motors Holden in Pagewood. He had little English. Mrs Palagiano worked in a factory at Botany. Within seven years the family had saved enough to purchase the Hillsdale property. Hillsdale is a suburb just north of Matraville. The property was bought for $49,000 and the transfer to Mr and Mrs Palagiano was dated 8 October 1976. Mr and Mrs Palagiano borrowed money from the Bank of New South Wales Savings Bank to assist with the purchase. It is not known how much of the purchase price was borrowed. However on 15 September 1978, less than two years after the property was purchased the mortgage was paid off.
  2. None of the children completed high school. Tony deposed that he left school and started work when he was only 12, approaching 13. Joseph corroborated that evidence. Tony said that he started work in 1970, the year after the family arrived in Australia.
  3. Chiara is four years younger than Tony. She agreed that Tony left school early, but said that he did not start working until he was about 17 or 18 after he got his driving licence. When Tony was 12 she was eight. I do not accept that she can accurately recall such details. Nonetheless, I find it difficult to accept that Tony would have started regular paid employment as young as 12 or 13. But given that both Chiara and Joseph left school and started work when they were 15 or 16 and that Tony admittedly had trouble fitting in to school, I think it likely that he would have started work when he was about 15 or perhaps a little earlier. The precise year in which he started work is not important.
  4. Tony said that his first job was at the factory at which his mother worked. He was paid $16-20 a week. He did not last long at that place. According to his affidavit he then went to work at a fruit shop in Hillsdale for a friend of his father's at which he earned about $20 or $25 a week. According to his affidavit his next job was at a factory in Botany called Dyes and Bleaches (although in his oral evidence he said that Dyes and Bleaches was his second job). It was a textile factory. Tony deposed that he worked 12-hour days and 12-hour night shifts, working altogether about 60 hours a week. He said that he worked at that factory for two and a half years and gave all his money to his father who paid him back some pocket money. I accept that evidence. He said he received about $200 per week. His next job was at a Masterfoods factory at which he was working when the family moved into the Hillsdale property. In his affidavit Tony placed the time of the move to the Hillsdale property as being at the end of 1974, about two years before the property was purchased. That confirms my view that his memory as to when he started his employment is faulty. It is more likely that he started his employment about two years after he said he did, when he was 14 approaching 15. He said that he earned about the same level of wages, that is, around $200 to $230 per week at Masterfoods.
  5. Tony deposed that when he was 12 and shortly before his first job at the factory at Botany, his mother and father sat down with the three children and his father said:

" Tonino will be going to work from now on because we want to save money to buy a house. We don't want to pay rent anymore. We want to save a deposit as fast as we can so we can buy our own home. Sacrifices will have to be made. Tonino will have to miss school and get a job but it will be good for all of us in the end. One day the house will be yours. Everyone in this family is equal. "


  1. Tony says that shortly before the family moved to the Hillsdale property, his father said to him:

" Tonino, we have at last saved enough money for the new home. You have been a good boy. It's all been worth it. You will own this home one day with Giuseppe and Chiara. Everyone is equal in this family. "


  1. These conversations are the foundation of Tony's claim to a one-third interest in the Hillsdale property. He pleads that in 1970 when he was 12 his father directed him to leave school, to get a job and to pay his wages to his father in order to enable his father to purchase a home. The statement of claim alleges that when giving this direction, Mr Palagiano orally represented to Tony that he would eventually receive a one-third interest in the home to be purchased, as would Joseph and Chiara. He pleads that in accordance with his father's direction, he left school, obtained employment, and thereafter paid his wages to his father. He pleads that he continued to pay his wages to his father from the time he started employment (alleged to be 1970) to 1987. When he was unemployed he says he paid his unemployment benefits to his father. He pleads that " in complying with the deceased's directions and demands as regards payment of the money [being wages and unemployment benefits] [he] relied upon the frequent verbal representations made by the deceased that [he] would eventually receive a one-third interest in the [Hillsdale] property ." He pleads that it would be unconscionable for the deceased not to honour the representations made to him that he would eventually receive a one-third interest in the Hillsdale property and that the defendant as executor ought to be held to the representations made to him by his father.
  2. In cross-examination Tony was asked why he left school and said that he was forced to do so by his father so that he would bring a wage home. I accept that evidence.
  3. I also accept that from time to time the deceased told his children, including Tony, that they would all inherit the family home and that it was to the advantage of them all that the children's wages be used to help purchase the home. I think it very likely that Tony's wages were added to those of his father and mother to meet the family's living expenses, and either directly or indirectly to assist his parents in saving enough money to be able to afford to buy the house. Similarly, I think it likely that his wages, along with the wages of his father, mother and Joseph (after Joseph started working), were pooled to meet the family's expenses and to pay off the mortgage over the Hillsdale property. It is not possible to be more definite. There is no corroboration of the wages earned by Tony or Joseph at the time. There is no evidence as to what were the wages of Mr and Mrs Palagiano. Nonetheless, the fact that the family was able to purchase the house in Hillsdale seven years after they arrived in Australia and pay off the mortgage on the house after a further two years suggests frugal living and a strong ethic of saving all available money.
  4. However, I do not accept that any of the witnesses have any recollection of any particular conversation in which their father spoke of all of the children one day benefiting by sharing the house equally. I accept the evidence of Joseph and Tony that something along those lines was said more than once. But the context in which statements to that effect were made, and any qualifications are unknown and unknowable. The representations alleged by Tony and Joseph are said to have been made up to 40 years ago. As McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 (at 319):

" Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. "


  1. I am not satisfied that there was anything promissory in the statements made, as distinct from their being statements of Mr Palagiano's then intentions and expectation. Circumstances can change. Mr and Mrs Palagiano's financial circumstances could change. For example they might choose to sell the house for any reason. Family dynamics might also change, as they did. In the family setting there was no intention or expectation that Mr Palagiano's representations as to the inheritance of the family house, or the steps alleged to have been taken in reliance on the representations, would create legal relations.
  2. I do not accept that Tony's actions in leaving school and starting work, or his handing over his wages to his father, were steps taken by him in reliance upon any representation made by his father that the house would one day belong to him, his brother and sister. On his evidence he was 12 when he left school and took up work. I think it more likely that he was 14 or 15 when he did so, but whatever his age, he had no real choice in the matter. As he said in cross-examination, his father forced him to leave school in order to go to work and bring home a wage. By the same token he continued to live at home and was provided with board until he married in 1988.
  3. The same is true of Joseph. He deposed that he left school at age 15 in 1975. However, he also had a strong recollection that when he left school the family was then living in the Hillsdale property. As the property was not purchased until October 1976 it is more probable that he left school at the end of 1976 aged 16 years. He deposed that before he started work his father said to him " When you are paid you give me your money like Tonino so we can repay the bank quicker and one day the house will be yours to share with Tonino and Chiara ". I do not think that Joseph recalls any particular conversation. Like Tony, he has reconstructed the conversation to which he deposes from his general impression of having been told that in due course all three children would inherit the house.
  4. Joseph's decision to leave school was not induced by any such representation. In cross-examination he gave the following evidence:

" Q. ... why did you leave school?


A: I was not very academic at school.


Q. So it was time to leave school and get a job?


A: Exactly. "


  1. I accept Joseph's evidence that from the time he started work until he was aged 22, that is in 1982, he handed over his wages to his father and got some money back as pocket money.
  2. Given that he left school at the end of 1976, the period for which he handed over his wages to his father was no more than six years.
  3. Joseph gave evidence that he trusted his father to keep what he called his father's promise that he would receive a one-third share of the family home. He said he relied on that promise in handing over his pay packet up to 1982. I do not accept that Joseph's conduct in handing over the pay packet was done by him in reliance upon what he said was a promise by his father that he would receive a one-third share of the family home. Until he was 22 he simply complied with his father's wishes in that respect.
  4. There was dispute between Chiara and Tony as to whether Tony handed over his wages to his father and, if so, for how long. Tony was in a position to know. There were frequent arguments between him and his father on the subject of money. I think it likely that Tony from time to time resisted handing over his entire wage to his father in return for pocket money. It is Tony's evidence that he continued to hand over his wage to his father until 1987 (shortly before he married), that is, when he was about 30. I think it probable that Mr Palagiano expected Tony to hand over his wage, that Tony usually did so, whilst retaining some part for himself, and that this was a point of friction between him and his father. Just how much money Tony handed over to his father over the years is impossible to say with any certainty.
  5. Nonetheless, the family, through Mr Palagiano, was able to save enough for a further property purchase. Joseph started working at the end of 1976. Chiara left school in 1978 when she was 15 years old. From that time all three children contributed their wages, or some of their wages, to their parents.
  6. In 1980, Mr Palagiano was made redundant when the General Motors Holden plant was closed. He received a redundancy package, but it is not known how much money he received. He retired on a disability pension due to high blood pressure although he was only 48. Mrs Palagiano continued to work for a couple of years.
  7. On 10 February 1982 an investment property in Smith Street, Hillsdale (the "Smith Street property") was purchased in the names of Tony, Joseph and Chiara. Whilst the property was purchased in their names, Mr Palagiano was instrumental in the purchase. The purchase price was $85,000. According to Joseph, Mr Palagiano provided about $40,000 to $50,000 of the purchase price. It is not clear how Joseph would have known this, but there was no contrary evidence. According to Chiara, Mrs Palagiano's brother and his family contributed to the purchase price. Likewise, it is not clear how Chiara would have known this, but there was no contrary evidence. A mortgage was taken out, but none of Tony, Joseph or Chiara said how much they borrowed. Whilst the mortgage must have been in their names, it is clear that their father managed the purchase and the borrowing. The mortgage was discharged on 25 August 1986. According to Joseph, he had stopped handing over his wage to his father in 1982. According to Chiara, she gave about $40 to $50 per week towards the mortgage on the Smith Street property. Mr Palagiano was on a disability pension from 1980 and Mrs Palagiano had retired by at least 1982. Given these matters, it is reasonable to presume that a substantial proportion of Tony's wages must have been used to make up the moneys used to purchase the Smith Street property and to pay off the mortgage. It is possible that Mr Palagiano had other sources of funds, but there is no evidence that he did, except for an unknown amount that Chiara asserts was provided by her mother's brother and his family.
  8. Tony also gave evidence that in 1982 he borrowed $6,000 from the State Transit Credit Union to lend to a friend called Tony Wong. He was obliged to repay the loan to the Credit Union over five years with the loan instalments to be deducted from his pay each fortnight. Tony gave evidence that when his father learned of this arrangement he was angry and required that Tony Wong repay the money which he did. Tony said that his father took the money and said that he would put it in the bank. The loan was repaid by the regular deductions from Tony's pay. Tony was not cross-examined on this evidence and I accept it. However, I do not accept that in allowing his father to take the $6,000 repaid by Mr Wong, Tony was acting in reliance on a promise or expectation that he would receive a one-third share of the family home.
  9. Before the Smith Street property was purchased, Mr Palagiano told Joseph that the house would be sold and the money divided for the three children to help them buy their first homes when they got married. That is what happened. Chiara married Anthony Mankarios in 1987, Joseph married five months later, and Tony married in February 1988. The Smith Street property was sold in April 1988. There was no evidence of the sale price, except that Joseph thought it was $150,000. Following the sale of the property each child received $50,000.
  10. Tony stopped handing over his wages to his father in October 1987 after he and his future wife, Gabrielle, decided to marry. In 1988, Tony and his wife bought a house in St Clair using his share of the proceeds of sale of the Smith Street property. At about the same time Joseph and his wife, Vesna, bought a house in St Mary's, again, using Joseph's share of the proceeds of sale of the Smith Street property. Both are suburbs a long way from Hillsdale. Chiara and her husband purchased a unit close to the Hillsdale property. From the time Tony and Joseph moved to the other end of Sydney, they had much less contact with their parents, whereas Chiara maintained regular contact.
  11. Joseph deposed that soon after the birth of their third child in December 1994 his mother told him that she had $30,000 to share between him, his brother and sister. He deposed that his mother " gave us $10,000 at that time ". Neither Tony nor Chiara gave evidence of receiving $10,000 at that time. (Mrs Palagiano gave $30,000 to Chiara in 2007 which she divided three ways.) It seems that the 1994 payment was a particular benefit given to Joseph and his family, notwithstanding, (or perhaps because), prior to the birth of his third child, Joseph and his parents had had a falling out. This led to his not seeing his parents for about a year, but there was a reconciliation.
  12. In about the mid 1990s Joseph and his family sold their house at St Mary's and purchased a property at Tempe. (Chiara places this event as taking place in about 1999 or 2000, but Joseph said that he only lived at St Mary's for about five years which would place the move much earlier). From the time of the move, Joseph had more frequent contact with his parents, but his main contact was with his mother. He tended to avoid speaking to his father.
  13. In 1998 Tony and his family sold their St Clair house. They purchased land in Colo Vale in the Southern Highlands and built a house. This was about 100 kilometres from the Hillsdale property. According to Tony, he and his family drove to Hillsdale for Sunday lunches and he made regular phone calls to his parents. I do not accept that evidence. It is not corroborated. Chiara had no knowledge of any such contact.
  14. Chiara and her husband are comfortably off. In 1997 they bought tickets for Mr and Mrs Palagiano and them to travel together to Italy. Whilst in Italy Mr Palagiano had a minor heart attack and the doctor in Italy advised Chiara that he needed to see an eye specialist. On his return to Australia he attended an eye specialist in Chatswood on a weekly basis. He was diagnosed as having a retinal melanoma. Chiara drove him to his appointments. In the second year of Mr Palagiano's treatment he also had to attend a doctor in Bondi every week. Chiara drove him to his weekly appointments at both places and cut down her hours of working to three days a week in order to drive her father to his appointments. (She was employed in the business of which her husband was a part-owner.)
  15. For many years Mr and Mrs Palagiano expressed their disappointment with Joseph and Tony for not maintaining regular contact. Chiara deposed that in 1997 or 1998 Mr Palagiano told her that his sons " never come for me or your mother, they just come for money ".
  16. In 1999 Mr Palagiano had to have radiotherapy for his cancer. The treatment caused him to lose his sight. His health deteriorated further. At about the same time Mrs Palagiano began to suffer serious health problems. Chiara, but neither of the sons, helped care for them both.
  17. Mr and Mrs Palagiano had seven grandchildren. Tony and his wife Gabrielle have two children, Tiarne, now aged 19 and Dikea now aged 16. Joseph and his wife have three children, Melissa, Peter and Nicholas (aged about 23, 20 and 15). Chiara and her husband have two children, Jessica and Julia (aged about 23 and 17). In or about 2005 Mrs Palagiano told Chiara that she had money of hers in a term deposit with the bank which she had decided to give to the grandchildren. According to Chiara, her father resisted the idea and said " The parents will take the money, not the kids. As for Tony, he will just gamble it. They will just lose all that money and the kids will get nothing. " I accept that a conversation to that effect took place. Nonetheless, according to Chiara, her mother was determined to give money to her grandchildren. $17,000 or $17,500 was transferred to bank accounts for each of the children. Contrary to the views expressed by Mr Palagiano to his daughter about Tony, the money set aside for Tony's children has not been touched. According to Joseph, the gifts were made in 2003 at the Prince Henry Hospital when both Mr and Mrs Palagiano were in hospital and the gift was made by both parents. He deposed that while the amount of the gift was quantified as $17,000 for each grandchild, it was given to him to deal with as he saw fit. The moneys paid to Joseph were used to reduce the mortgage on the Tempe Street property.
  18. Accordingly, by 2003 or 2005 Joseph had received $50,000 from the sale of the Smith Street property which was applied to purchase the St Mary's house, $10,000 from his mother in 1994, and about $51,000 from his parents in 2003 or 2005. He had paid his wages and unemployment benefits to his father for about six years.
  19. Tony paid his wages and unemployment benefits to his father for about 15 years. He also received $50,000 from the sale of the Smith Street property, and two sums of $17,000 or $17,500. He has honoured what he understands to be the wishes of his parents that those two payments of $17,000 be held for the benefit of his children.
  20. Mrs Palagiano became seriously ill in 2005. Chiara was caring for both her parents. In 2006 Mrs Palagiano spent three months in hospital. Chiara and one of her daughters looked after Mr Palagiano in his house. Tony did not visit during this period. Joseph and his family visited from time to time.
  21. Mr Palagiano was also admitted to hospital in about August or September 2006. After Mrs Palagiano was discharged, it was Chiara who looked after both her parents and took her mother to regular chemotherapy treatment. Her parents became wholly reliant upon her.
  22. Neither Tony nor Joseph visited their mother on her 70 th birthday. This was upsetting to Mr Palagiano. Less than two months after her 70 th birthday Mrs Palagiano died. Shortly before she died, she told Chiara that she had a box of money hidden in the cupboard which was for Chiara. After her mother's death Chiara found there was $30,000 in the box. Chiara gave $10,000 to Tony and $10,000 to Joseph.
  23. After their mother's funeral in June 2007 Chiara told Tony that she would need help looking after their father. Tony said words to the effect " Put him in a nursing home. I can't be expected to come here every week. " Mr Palagiano overheard this. This led to another argument between Mr Palagiano and Tony. Mr Palagiano ordered him out of the house. This was the last time Tony saw his father until shortly before his death when his father was not conscious. There were some telephone conversations in the following two months until about August 2007 when Tony stopped telephoning his father because, according to him, his father was angry and abused him.
  24. Joseph was also estranged from his father. About five weeks after his mother's death he had a violent argument with his father who became very angry and threatened him with a walking stick. At a passing ceremony for Mrs Palagiano a week later they did not speak. He stopped visiting his father. He did not see his father again until he received an SMS from Chiara, which eventually prompted him to visit his father in hospital the day before his father died.

Claim for a constructive trust


  1. The plaintiffs' claim to be beneficially entitled to the Hillsdale property in equal shares with Chiara is based upon the representations said to have been made by Mr Palagiano, upon which there has been detrimental reliance by the plaintiffs. In my view, the plaintiffs' claim fails on a number of grounds. First, I am not satisfied that there was a clear and unequivocal representation ( Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 436-437), or a representation that was " clear enough " ( Thorner v Major [2009] UKHL 18; [2009] 3 All ER 945 at [56]) that amounted to an assurance that the property would be left to the three children in equal shares. The plaintiffs have not established that the statements made by Mr Palagiano about future ownership of the Hillsdale property went beyond statements of his then intention and expectation that in due course the property would be shared between the children equally (compare Gillett v Holt [2000] EWCA Civ 66; [2001] Ch 210; [2000] 2 All ER 289 at 303-304).
  2. In Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387 Brennan J said that to establish an equitable estoppel the first thing it was necessary for the plaintiff to prove was that (at 428):

" ... the plaintiff assumed ... that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship. "


  1. If Mr Palagiano gave a promise or assurance that the Hillsdale property would be left equally to all of the children, the question would still arise whether the plaintiffs needed to establish that they assumed that Mr Palagiano was not free to withdraw that promise or assurance. They did not give evidence that they assumed that he was not free to withdraw the promise or assurance. For the reasons I gave in EK Nominees Pty Ltd v Woolworths Limited [2006] NSWSC 1172 at [231]- [267] I do not consider that it would be necessary for the plaintiffs to have assumed that Mr Palagiano would not be free to withdraw his promise or assurance. It would be sufficient, in my view, if they established that they acted reasonably and to their detriment on the assumption that Mr Palagiano would not withdraw his promise or assurance, as distinct from having to assume that he could not lawfully do so.
  2. However, I am not satisfied that in the context in which statements as to future ownership of the house were made, Mr Palagiano's statements amounted to anything more than a statement of his then intention and expectation as to how the house would be owned after his and his wife's death. Tony gave evidence that he understood from what he was told by his father that he would be rewarded for giving his money to the family by one day receiving the family home in equal shares with his brother and sister. Although he did not say so expressly, I infer that he assumed that his father would not change his mind as to how the property should be left. Joseph said that he always trusted his father to keep what he called his father's promise that he would receive a one-third share of the family home. However, I do not consider that either Tony or Joseph could reasonably have assumed that Mr Palagiano might not change his mind as to how the property would be left given the frequent conflicts between him and his sons. Those conflicts existed during the period in which Tony and Joseph were handing over their pay packets, or part of their pay packets, to their father. In contrast to Thorner v Major, in this case, it was not reasonable for the plaintiffs to have understood their father as saying not merely that it was his then intention to leave the Hillsdale property to his children equally (if he survived his wife) but that he would definitely do so (compare Thorner v Major at [3], [19], [24], [60], [74], [77]).
  3. The second reason the plaintiffs' claim to be beneficially entitled to the property must fail is that the steps relied upon by the plaintiffs as acts of detrimental reliance, by leaving school early to take employment and handing over the bulk of their wages to their father for a number of years, were not taken in reliance on a representation that in due course they would acquire a one-third share of the Hillsdale property. I have concluded that they took those steps simply because their father required it, not because of any representation about their future ownership of the property. Mr Willmott SC, who appeared for the plaintiffs, submitted that:

" 6. What the Court has to look at with respect to reliance is not 'the state of mind' of the representee but, rather, the fact that he had followed a course in consequence of the assurance. By 'state of mind' is meant that any consideration as to an examination whether the representee engaged in an exercise of debating within himself the merits or otherwise of changing his position is irrelevant. All that is relevant is to see whether the representee has adopted that course upon receiving the assurance. Let it be supposed the first plaintiff had 'no real choice in the matter' and that his mind was made up for him by his father. The plaintiff none the less adopted a course after his father had given the assurance. He thenceforth left school and handed to his father his wage packet each week. The noun 'reliance' means trust or that in which or in whom one trusts (from the Latin religare to bind back).


7. In short, reliance means change of position and more often than not is inseparable, as Robert Walker LJ pointed out, from detriment. "


  1. I do not accept this submission. As Deane J said in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at 444, the central principle of the doctrine of estoppel by conduct is that the law does not permit an unconscientious departure by one party " from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that party's detriment if the assumption be not adhered to for the purposes of the litigation. " An essential element of estoppel is that the party claimed to be estopped from asserting his or her legal rights must have played such a part in the adoption by the plaintiff of an assumption, which formed the basis of the plaintiff's action or inaction, where the plaintiff will suffer substantial detriment if the assumption be not adhered to, that it would be unconscientious for that party to deny the assumption.
  2. Neither Tony nor Joseph adopted the assumption that they would one day inherit a third of the Hillsdale property as the basis on which they acted in leaving school or handing over their wages to their father.
  3. The third reason for rejecting the plaintiffs' claims to be one-third beneficial owners of the property is that the plaintiffs have not demonstrated that they have suffered such detriment through leaving school early and handing over their pay packets to their father that it would be unconscientious for Mr Palagiano, or the defendant as his executrix, to deny the plaintiffs' assumption that they would become one-third owners of the property.
  4. There is no evidence that either plaintiff could have done better for himself by staying at school longer. Joseph readily admitted that he was not academic and the time had come for him to leave school when he did. The exact age at which Tony left school was not clearly established. I have not accepted his evidence that he left school as early as 12. Chiara said that Tony had trouble fitting in at school as he could not speak English and had trouble learning to speak it, and that there were days when he refused to go to school. I accept that evidence. Whilst in many cases leaving school early could be a substantial detriment, I am not satisfied that that is so in the case of the plaintiffs. Moreover, whilst the plaintiffs handed over their pay packet, or a substantial part of their pay packet, to their father for a period of about 15 years in the case of Tony, and six years in the case of Joseph, they received substantial compensation from their parents. Most notably, they both received $50,000 which each used to purchase his first house. They were also provided with board and accommodation by their parents until they were married. When the Smith Street property was purchased, Joseph and Chiara moved into that property. Tony continued to live with his parents in the Hillsdale property. There is no suggestion that either was required to pay any rent or board.
  5. Further, Mr and Mrs Palagiano provided gifts of $17,000 or $17,500 for each of the plaintiffs' children. The plaintiffs also received $10,000 indirectly from their mother, through Chiara. Joseph received another $10,000 from his mother in 1994. The substantial contributions that Mr and Mrs Palagiano made for their children's benefit during their lifetime makes it not unconscientious for Chiara, as executrix of Mr Palagiano, to deny the plaintiffs' assumption that they would have a beneficial interest in the Hillsdale property.
  6. For these reasons I reject the plaintiffs' claim to be beneficially entitled to a share of the Hillsdale property.

Claim for relief under the Family Provision Act


  1. The parties ultimately agreed that the net value of the estate at the date of hearing was $1,004,660. The principal asset of the estate was the Hillsdale property valued at $975,000. Unnecessary costs were incurred in identifying the value of the estate because Chiara failed to disclose that she had withdrawn $35,000 from bank accounts of Mr Palagiano. She also failed to disclose rental receipts in respect of the property. Her failures in this respect undoubtedly increased the costs incurred by the plaintiffs and will have to be considered when questions of costs are dealt with.
  2. Both Joseph and Tony are unskilled. Joseph works as a storeman or "storage facility manager". Tony works as a storeman and delivery driver. Tony said that he also was a manager. Tony receives $750 per week after tax for a normal working week of 45 hours, but with overtime, usually receives $900 to $1,000 per week (T37). Tony's wife Gabrielle, does some part-time cleaning work for which she is paid $18 per hour, five hours per week. The income of Tony and his wife after tax, based on Tony working about 45 hours per week for a net sum of $750, rather than $900 to $1,000 per week, is about $44,000 to $45,000 per annum after tax. With overtime, their income might be about $50,000 per annum after tax. Their expenses per year are about $36,000. This includes mortgage repayments of $358 per month. Tony and his wife Gabrielle own the family home at Colo Vale with an estimated value of $360,000. A housing loan of $43,000 is secured over the property. They own a Hyundai motor vehicle valued at $12,000, have minimal savings, and have superannuation jointly of about $44,000. The two term deposits held in Gabrielle's name on trust for their daughters are $30,524 in the case of their elder daughter, Tiarne, and $27,791 in the case of their younger daughter, Dikea. Their only other debts at the time of hearing was for school fees of $5,200.
  3. At the time of the hearing, Joseph Palagiano was not earning a wage. He had injured his shoulder and was in receipt of workers' compensation payments. He did not know whether he would be able to return to his previous employment. In the years ended 30 June 2007, 30 June 2008 and 30 June 2009, Joseph's taxable income was $29,494, $34,120 and $30,731 respectively. At the time of the hearing, he was receiving weekly workers' compensation payments of $340. He had received a lump sum payment of $10,300. Joseph's wife, Vesna, was employed as a pharmacy assistant. Her taxable income for the same three-year period was $30,232, $32,493 and $39,867. By the time of the hearing, her wage was $570 per week after tax and Joseph estimated that his and his wife's combined income after tax was $47,320 per annum. This was less than had been earned in previous years. Their estimated annual expenditure was about $57,000. Joseph and Vesna own a home in Tempe with an estimated value of $550,000. They own three motor vehicles which are quite old with an estimated combined value of $7,200. Their combined superannuation totals about $64,000. They also have cash of about $40,000. Their only liabilities are a housing loan of about $3,200.
  4. Chiara and her husband gave evidence of their financial position. However, they resisted providing any documents in relation to the financial position of companies in which they held shares. The position taken by Chiara and her husband was that their financial position was not relevant to the plaintiffs' claim under the Family Provision Act . That is to say, Chiara did not contend that her financial position was relevant to determining what would be adequate provision for the proper maintenance or advancement of life of the plaintiffs. She did not say that she had a competing financial need.

Tony's claimed financial needs


  1. Tony gave evidence that if he were to receive provision from the estate, his priority would be to buy a home closer to Sydney. His property at Colo Vale is convenient to his work. However, his wife and elder daughter Tiarne have difficulty finding work in Colo Vale. Tiarne, aged 19 or 20, lives at home and has completed a beauty therapy course. Gabrielle wishes to find work but is unskilled. Tony and Gabrielle consider that Gabrielle and Tiarne would be better positioned to obtain work if they lived in Narellan or Campbelltown, which is closer to Sydney. There is inadequate public transport to Sydney and by car it is a three-hour round trip.
  2. Tony deposed that he would need approximately $208,000 to $230,000 plus establishment costs to buy a home closer to Sydney. He also said that a second reliable family car was desirable. At present Gabrielle drives Tony to work and back every day and drives Tiarne to her part-time job. His younger daughter, Dikea, wishes to undertake a photography course after leaving school, with an estimated cost of just over $18,000.
  3. He also gave evidence that costs of about $20,000 would be needed for dentistry costs for himself and for orthodontic work for Dikea. He said that Gabrielle (who suffers from arthritis and disc degeneration in her back) needed a new mattress at a cost of about $2,500 and that he and his wife wished to save their daughters the cost of paying for their funerals and wished to pre-purchase a funeral for both he and his wife at a cost of about $20,000. Tony is 53 and Gabrielle is 44. There is nothing to indicate that either would have less than a usual life expectancy of a person of their age.
  4. Tony also deposed that he would like to start an eduction course for himself. He wishes to improve his literacy.
  5. In his first affidavit sworn in February 2010, Tony said that he and his family would like to be able to move closer back to his family and friends in Sydney. He made no reference to a desire to move from Colo Vale to Narellan or Campbelltown. In cross-examination he said that he first had the idea that he would like to move to Narellan or Campbelltown about three years ago when Tiarne left school. In cross-examination he was also asked what were his most pressing financial needs which he considered ought to be met out of his father's estate. Those were identified as being to pay off the mortgage, to " fix the house ", to buy another car, to pay his daughters' expenses for school and " some other things ". When asked what were the other things, he said " to fix the house, to fix outside the yard and to put money in the bank ".
  6. Gabrielle gave evidence that the house in which the family are living at Colo Vale was suitable accommodation, in a beautiful location and that the family were very happy there. She also said however that she thought the family should move closer to Sydney to provide the children with better opportunities for work and for education. The photography course which Dikea is thinking of doing would be located at The Rocks. If the family moved to Narellan or Campbelltown, Dikea could travel to The Rocks. No final decision had been made. To move would mean leaving their friends in Colo Vale.
  7. Because Tony is unskilled and has poor English, his future employment prospects are not assured. He has trouble reading documents and completing forms. He has trouble in taking instructions from people ordering deliveries. He appears to have a sympathetic employer at present, but if he lost his current employment he could well have difficulty in obtaining new employment.

Joseph's claimed financial needs


  1. Joseph's future employment prospects are uncertain. His work experience is limited to manual work. He is currently not working but receiving workers' compensation payments. Those payments have reduced over the last 12 months. There are legitimate grounds for concern that having regard to his lack of education and his shoulder injury, he will be unable to find future gainful employment.
  2. In his first affidavit sworn in February 2010, Joseph identified his financial needs as being the need to renovate his house at Tempe, to provide a reasonably updated, safe and reliable car for the family, to assist his children to start their studies or chosen careers when they finish high school, and to pay their university fees.
  3. In relation to the renovation of the Tempe house, Joseph said that the house was over 100 years old and that extensive renovations were needed. In a further affidavit sworn three days before the hearing, Joseph said that his priority would be to buy a new four-bedroom house in the Tempe area. In cross-examination he said that that decision was taken as a result of having had a builder look at the property to estimate the cost of repairs. The builder only attended for that purpose in the week before the hearing. According to Joseph, the builder estimated the repairs to the property would cost in the region of $200,000 to $250,000 and he considers that it would be more economical to buy a new home in a neighbouring suburb, Marrickville, for which approximately $240,000 additional funds would be required. There was no evidence from the builder.
  4. Joseph also deposed that he and his wife had not in over 20 years and their whitegoods were ageing and that they needed new furniture and whitegoods. He estimated the cost of the new furniture and appliances to be approximately $20,000. He also said that he needed a new and reliable family-sized car at an estimated cost of about $30,000. He also said that his son, Nicholas (aged 16), needs orthodontic treatment and based on a publication of the Australian Society of Orthodontists estimates the cost of the work would be between $4,000 and $10,000. Details of these expenses were obtained only in the few days before the hearing.

The jurisdictional threshold


  1. Sections 7 and 9 of the Family Provision Act provide:

" 7 Provision out of estate or notional estate of deceased person


Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.


...


9 Provisions affecting Court's powers under secs 7 and 8


...


(2) The Court shall not make an order under section 7 or 8 in favour of an eligible person out of the estate or notional estate of a deceased person unless it is satisfied that:


(a) the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate, or


(b) in the case of an order under section 8:


(i) if no provision was made in favour of the eligible person by the deceased person, the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person, or


(ii) the provision made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate as well as the provision made in favour of the eligible person under this Act out of the estate or notional estate, or both, of the deceased person,


is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.


(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:


(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:


(i) the acquisition, conservation or improvement of property of the deceased person, or


(ii) the welfare of the deceased person, including a contribution as a homemaker,


(b) the character and conduct of the eligible person before and after the death of the deceased person,


(c) circumstances existing before and after the death of the deceased person, and


(d) any other matter which it considers relevant in the circumstances.


(4) Nothing in subsection (3) (a) limits the generality of subsection (3) (b), (c) and (d) and the Court may consider a contribution of the same nature as that referred to in subsection (3) (a) or of a different nature in so far as it considers it relevant under subsection (3) (b), (c) or (d).


(5) Subject to the foregoing provisions of this section, the Court may make an interim order for provision under section 7 in favour of an eligible person before it has fully considered the application for that provision where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application.


(6) Where, on an application made in relation to a deceased person, the Court has made an interim order as referred to in subsection (5), it shall, in due course, proceed to make a final determination of the application, which determination shall confirm, revoke or alter the order so made. "


  1. The court may not make any order for provision in favour of an eligible applicant unless it is satisfied that the provision made in favour of the applicant by the deceased during his lifetime or out of his estate is, at the time the court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the applicant (s 9(2)). If the court is satisfied that the provision so made for the applicant is inadequate for his proper maintenance, education and advancement in life, it has a discretion under s 7 to order such provision out of the estate or notional estate of the deceased as, in the court's opinion, having regard to the circumstances at the time the order is made, ought to be made for the maintenance, education or advancement in life of the applicant.
  2. Both in determining whether the provision made for each plaintiff is inadequate for his proper maintenance, education and advancement in life, and (if that question is answered favourably to either plaintiff) in determining what provision ought to be made, I must address all of the circumstances relevant to determining what provision would be " proper " for the maintenance, education and advancement in life of the plaintiffs ( Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209-210). In Singer v Berghouse , Mason CJ, Deane and McHugh JJ said (at 209-210):

" The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.


The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. "


  1. Due to the care which Chiara provided to both her parents, her claim on Mr Palagiano's estate is substantially greater than the claim of either Tony or Joseph. That is so notwithstanding that she does not profess any financial need. But in my view, her claim on the estate, which Mr Palagiano recognised in his will, is not so compelling that a wise and just testator would make no provision for his sons, albeit that both sons are adults with established families and property of their own. The question of what provision for maintenance, education or advancement in life is " proper " and the question of whether the provision made by the deceased in his lifetime (there being no provision made in his will) was adequate for Tony and Joseph's proper maintenance, education and advancement in life involve value judgments on which minds can legitimately differ. There are no definite criteria by which the question can be answered.
  2. Nonetheless, in the case of Tony, I think it is clear that adequate provision for his proper maintenance, education and advancement in life was not provided. Tony made a substantial contribution to the family's finances and thus to the deceased's property by providing his wage, or a substantial part of his wage, to his father for a period of 13 years. He assisted Mr and Mrs Palagiano in their acquiring an unencumbered title to the Hillsdale property and the Smith Street property. Tony, Joseph and Chiara all received an equal payment of $50,000 on or shortly after their marriage which they were able to use to assist in the purchase of their homes. That allowance did not recognise Tony's greater contribution to the financial wellbeing of the family which indirectly assisted Mr and Mrs Palagiano to acquire an unencumbered title to their property.
  3. There were frequent conflicts between Tony and his father. Mr Palagiano accused Tony of a gambling habit. I accept the evidence of Tony and his wife, Gabrielle, that Tony only ever gambled small amounts of money and did so in a social environment which did not have a detrimental effect on his finances or family life. As observed at para [35] Mr and Mrs Palagiano had seven grandchildren. Tony and his wife Gabrielle have two children, Tiarne, now aged 19 and Dikea now aged 16. Joseph and his wife have three children, Melissa, Peter and Nicholas ( aged about 23, 20 and 15 ) . Chiara and her husband have two children, Jessica and Julia ( aged about 23 and 17 ) . In or about 2005 Mrs Palagiano told Chiara that she had money of hers in a term deposit with the bank which she had decided to give to the grandchildren. According to Chiara, her father resisted the idea and said " The parents will take the money, not the kids. As for Tony, he will just gamble it. They will just lose all that money and the kids will get nothing. " I accept that a conversation to that effect took place. Nonetheless, according to Chiara, her mother was determined to give money to her grandchildren. $ 17,000 or $ 17,500 was transferred to bank accounts for each of the children. Contrary to the views expressed by Mr Palagiano to his daughter about Tony, the money set aside for Tony ' s children has not been touched. According to Joseph, the gifts were made in 2003 at the Prince Henry Hospital when both Mr and Mrs Palagiano were in hospital and the gift was made by both parents. He deposed that while the amount of the gift was quantified as $ 17,000 for each grandchild, it was given to him to deal with as he saw fit. The moneys paid to Joseph were used to reduce the mortgage on the Tempe Street property. ], Mr Palagiano's fears that Tony would squander the payments of $17,000 or $17,500 provided for each of Tony and Gabrielle's daughters were misplaced. It cannot be assumed that Mr Palagiano properly assessed Tony's character.
  4. It is impossible to determine the rights and wrongs of the conflicts between Tony and his father. Those conflicts led to Tony's becoming substantially separated from his father. However, the conflicts did not mean that Mr Palagiano had no moral obligation to provide for Tony in his will, particularly as it must be taken that Chiara had no countervailing financial claim on the estate.
  5. Whilst Tony and Gabrielle have been able to acquire a house for which the housing loan is substantially paid off and have been able to educate their two daughters, their financial situation is modest and would be in serious jeopardy if Tony were to lose his job. In my view, the provision made by the deceased for Tony in his lifetime is not adequate for his proper maintenance and advancement in life. In reaching that conclusion, I also take into account the payments made to Tony which originated from Mrs Palagiano as provision made for him during his lifetime which may have indirectly come from Mr Palagiano.
  6. The position is not so clear in the case of Joseph. He provided his wages, or the bulk of his wages and unemployment benefits to his father only until he was 22 (a period of about six years). In this respect his claim is not as strong as that of Tony. Moreover, Joseph's net asset position is stronger. His mortgage has been substantially paid off, albeit with the use of the moneys provided by his parents for the intended benefit of Joseph's children. Joseph recognises a moral duty to provide his children with the equivalent of the moneys so used.
  7. Joseph did not have the same level of friction with his father as did Tony. Nonetheless their relationship was not a happy one. Mr Palagiano would frequently complain that Joseph had not done the work around the Hillsdale house that he promised his parents he would do. It is not possible to determine the rights and wrongs of those disputes.
  8. Given Joseph's better financial circumstances prior to suffering his shoulder injury and the smaller contribution he made to the family's finances at the start of his working life, but for his injury, it would be difficult to say that he had not been provided during the deceased's lifetime with adequate provision for his proper maintenance and advancement in life. However, that question is to be determined not at the date of Mr Palagiano's death, but at the date of the hearing. Joseph suffered his injury about 17 months before the hearing or, that is to say, very close to his father's death. That injury creates a substantial risk for Joseph's ability to obtain future employment. It means that he has a real need for a provision to meet future contingencies. Having regard to that need, and judging matters as they now exist, I consider that the provision made for Joseph during the deceased's lifetime was also not adequate for his proper maintenance and advancement in life.
  9. As both plaintiffs have satisfied the first, or jurisdictional stage, the question is what provision ought to be made for them.

Provision to be made for Tony


  1. In Mayfield v Lloyd-Williams [2004] NSWSC 419 I said (at [86]):

" 86 One of the constraints upon the provision which the Court can order which is apposite to this case is that the provision must be for the maintenance, education or advancement in life of the applicant ( Family Provision Act , 1982, s 7). If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant ( Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 412; Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd [1979] HCA 2; (1979) 143 CLR 134 at 147; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 498, 505). But s 7 does not permit orders to be made to provide for the support of third persons whom the applicant, however reasonably, wishes to support ( Re Buckland Deceased at 412; Kleinig v Neal [1981] 2 NSWLR 532 at 537). "


  1. On appeal in that case the Court of Appeal made no comment on the correctness of that passage ( Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1).
  2. The major claim for provision made by Tony was for a sufficient sum to enable him, his wife and family to move from their present home in Colo Vale where they are well settled to Campbelltown or Narellan so as to improve the employment prospects of, in particular, Tiarne, and to make it feasible for Dikea, after she has left school, to undertake a photography course at The Rocks.
  3. Tiarne is an adult, but I infer that she is still dependent on her parents. Dikea completed year 10 of her schooling in 2010. Counsel for Chiara did not submit that a need to move house to accommodate the needs of Tony's children was outside the conception of the maintenance or advancement in life of Tony for which provision could be made. Tony has a moral duty to his children who are still dependent on him to provide for their advancement in life. In the absence of argument to the contrary, I am prepared to assume that a provision for Tony to allow him to buy a house at Campbelltown or Narellan to assist his children in their advancement in life is within the conception of provision for his maintenance or advancement in life.
  4. Nonetheless, I am not persuaded by the suggested need. In his first affidavit sworn in February 2010, Tony said that he would like to be able to afford to move back closer to his family and friends in Sydney. He made no reference then to moving to Campbelltown or Narellan for his children's advancement in life. That suggestion came only in his affidavit sworn three days before the hearing. Gabrielle admitted that she and her husband had not gone into the matter in any great detail. She said that it would be an important decision because it would mean leaving their friends and was a decision still to be made.
  5. In my view, adequate provision for Tony's proper maintenance and advancement in life would be a provision sufficient for the following:

a) to discharge existing mortgage debt of $43,000 leaving Tony and Gabrielle with an unencumbered property;


b) to purchase a second car, which need not be new;


c) to provide a contingency for future education costs for Dikea and future orthodontic treatment for Dikea; and


d) to provide a sum for future contingencies.


  1. I accept that there is a need for a provision for Tony's education, such as the cost of courses for English literacy. There was no evidence about the availability of such courses near Colo Vale, or their cost.
  2. In my view a sum of $180,000 would be adequate for those purposes. I will make an order for provision in that sum out of the deceased's estate in favour of Tony.

Provision for Joseph


  1. I accept that Joseph and Vesna's house in Tempe is in need of extensive repair. However, there was no satisfactory evidence as to the costs of repair. Joseph and Vesna have lived in the Tempe property for almost 16 years. Notwithstanding what appears from Joseph's affidavit sworn three days before the hearing, they have no definite plans to move house. Vesna gave evidence that they had discussed moving house " a little bit, or we might just extend or just renovate. " She had no idea of where they might move to and she said that she and Joseph had not discussed it (T96). I reject Joseph's evidence that he plans to move to Marrickville if moneys were available for that purpose.
  2. Joseph gave evidence that a builder had estimated the cost of repairs at between $200,000 or $250,000. However, no quote was tendered and there was no evidence from a builder. I am simply not in a position to say what would be the reasonable cost of carrying out reasonable repairs and renovations to the Tempe property. An opinion of a real estate agent verified that the house required major renovation. In its present condition the estate agent considered that the property should fetch between $550,000 and $600,000.
  3. Even if a full repair and renovation did cost between $200,000 and $250,000, that would not be a measure of what, in all the circumstances, would be adequate provision for Joseph's maintenance and advancement in life. There was no moral duty on the deceased to put Joseph and his family in a renovated property.
  4. Having regard to the provision already made for Joseph during the deceased's lifetime, I consider that adequate provision for Joseph's maintenance and advancement in life is a provision for contingencies against the possibility that Joseph's financial position deteriorates because he is unable to secure future employment. In my view a sum of $100,000 is adequate for that purpose.
  5. In considering the claims of Tony and Joseph for provision out of the estate, I have had regard to the fact that although Chiara has no competing financial claim, she nonetheless has a substantial moral claim to the estate by reason of her devotion to the deceased and to her mother, which was recognised by the deceased in his will.

Conclusion and Orders


  1. For these reasons I order that provision be made out of the estate of the late Pietro Palagiano in favour of the first plaintiff in the sum of $180,000.
  2. I order that provision be made out of the estate of the late Pietro Palagiano in favour of the second plaintiff in the sum of $100,000.
  3. I order that interest on such sums be payable at the rates prescribed for the purposes of s 84 of the Probate and Administration Act 1898 as the rate of interest on legacies and that such interest be payable from the date which is 30 days after the date of these orders until the date of payment.
  4. I order that the plaintiffs' claims be otherwise dismissed.
  5. Exhibits are to be dealt with in accordance with the Uniform Civil Procedure Rules .
  6. I will hear the parties on costs.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/61.html