Michael Di Giannantonio v Maria Di Giannantonio

2025/00178016

EQUITY – the late Michele Di Giannantonio died on 7 September 2009, survived by his wife Maria Di Giannantonio and their four children: Daniela, Paula, Adriana, and the first appellant (Michael) – In 1966, Michele and Maria acquired a property in Haberfield as joint tenants – upon Michele’s death, his interest in the Haberfield property passed to Maria as the surviving joint tenant by right of survivorship – Maria also received a half share in a property in Annandale, a half share in a property in Leichhardt, shares in Finewest Holdings Pty Ltd and MTP Marble & Granite Pty Ltd, and two apartments in Rome, Italy – in 2010 and 2011, Michael caused the whole of Maria’s interest in the Annandale and Leichhardt properties that she had inherited from Michele to be transferred for no monetary consideration to the second appellant (Mamro), of which Michael was the sole director and shareholder – the shares that Maria inherited in Finewest Holdings and MTP Marble & Granite became worthless after Michael established MTP Marble Granite Sandstone Pty Ltd (of which Michael was the sole director and shareholder) in October 2010 to carry on the business that had been conducted by MTP Marble & Granite, using the assets of MTP Marble & Granite – Maria retained the Haberfield property, but in May 2013 granted a mortgage over that property to secure a loan taken out by Mamro to fund the purchase of a quarry property in Maroota – in May 2018, Maria allowed Michael to live at the Haberfield property on the basis that he would sign a document committing to discharge the 2013 mortgage – on 12 October 2018, Michael, Mamro and Maria executed a deed which provided, inter alia, for (1) the discharge of the 2013 mortgage by no later than 2 October 2020; (2) a right for Michael to reside at the Haberfield property; and (3) an acknowledgement by Michael of the assets that he had received from Maria by way of “early inheritance” and a release in cl 8(c) of the deed of any right that he might otherwise have to make a claim against Maria’s estate following her death for further provision out of her estate, including the Haberfield property – on 28 October 2021, Michael lodged a caveat against the title to the Haberfield property claiming a beneficial interest by reason of work to the property that he claimed to have done or financed – Maria commenced proceedings seeking specific performance of the deed, a declaration that Michael does not have any equitable interest in the Haberfield property, an order under s 74MA of the Real Property Act 1900 (NSW) requiring Michael to withdraw his caveat, and approval of the release in cl 8(c) pursuant to s 95 of the Succession Act 2006 (NSW) – Michael resisted each of those claims on various grounds – the primary judge held that (1) the parties mutually agreed to be bound by the deed; (2) the deed was not liable to be set aside due to undue influence of Michael’s sisters on Maria; (3) the deed was not liable to be set aside under s 7 of the Contracts Review Act 1980 (NSW); (4) conscience did not require that Michael be declared as holding an equitable interest in the Haberfield property; (5) Maria was entitled to an order pursuant to s 74MA of the Real Property Act requiring Michael to withdraw his caveat; (6) Maria complied with her obligations under the deed and was entitled to specific performance of the deed; and (7) the Court should exercise its discretion to approve the release in cl 8(c) of the deed pursuant to s 95 of the Succession Act – whether the primary judge erred in her Honour’s exercise of the discretion under s 95(4) of the Succession Act – whether the primary judge erred in various of her Honour’s findings as to the execution of the deed and the mutual agreement of the parties to be bound by the deed – whether the primary judge erred in refusing leave for the appellants to file a notice of motion seeking a stay of the enforcement of part of the orders – whether the primary judge erred in allowing the hearing to continue without a tutor appointed to the first appellant – whether the primary judge denied the first appellant procedural fairness.

Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 356