Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346 highlights the complex intersection of succession law, family conflict, asset control, and contractual enforcement within family estates. The appeal arose from a long-running dispute following the death of Michele Di Giannantonio in 2009, whose estate was left entirely to his widow, Maria, (the Respondent) under his final will.
Over the decade following Michele’s death, the respondent transferred substantial family assets into the control of Michael (the first appellant), one of the Respondents’ sons, including valuable Annandale and Leichhardt properties, which were transferred to Mamro Pty Ltd (the second appellant), a company the first appellant controlled without consideration. Other family business interests allegedly lost their value after the restructuring of related companies, while the respondent also mortgaged the family home to support borrowings connected to the appellant’s company. The deterioration of the relationship between mother and son ultimately led to extensive litigation.
Central to the dispute was a 2018 deed negotiated after the first appellant returned to live with the Respondent following the breakdown of his personal relationship. The Deed later became the subject of Supreme Court proceedings in which the Respondent sought both specific performance and court approval under s 95 of the Succession Act 2006 (NSW) for the first appellant’s release of any future family provision claim against her estate.
Fresh Evidence on Appeal
The New South Wales Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 considered the principles governing the admission of fresh evidence on appeal. The Court confirmed that such evidence is admissible only on special grounds, subject to three established conditions.
(a) The evidence could not have been obtained with reasonable diligence for use at the trial;
(b) The evidence must be such that there is a high probability that there would be a different result; and
(c) The evidence must be credible.
Wife’s Special Equity
In Yerkey v Jones, the High Court of Australia recognised a “special equity” protecting wives who guarantee their husband’s debts without receiving any personal benefit from the transaction. Yerkey v Jones established that where a wife acts as a volunteer and signs a guarantee for her husband’s obligations without properly understanding its nature or effect, the guarantee may be set aside unless the lender took reasonable steps to ensure that she understood the transaction.
Dixon J identified two principal situations in which relief may arise.
First, where the husband procures the wife’s consent through actual undue influence, pressure, deception, or misrepresentation, the guarantee may be unenforceable even if the creditor did not know about the improper conduct.
Secondly, where the wife genuinely consents but does not understand the “purport and effect” of the transaction, the guarantee may also be unenforceable unless the creditor adequately explained the transaction or reasonably believed that she understood it.
Yerkey v Jones Principle
The High Court reaffirmed the Yerkey v Jones principle in Garcia v National Australia Bank Ltd (1998) 194 CLR 395. The majority of the High Court formulated the elements that, if there is no undue influence on the part of the husband, a wife will not be liable under a guarantee if four elements are met:
- The guarantor did not understand the purport and effect of the transaction.
- The transaction was voluntary (in the sense that the guarantor obtained no gain from the contract that was guaranteed).
- The lender understood that the husband may not fully and accurately explain the purport and effect of the transaction to the wife, and yet
- The lender did not itself take steps to explain the transaction to the wife or to find out whether a stranger had already explained it to her.
The doctrine rests on the recognition that a wife guaranteeing her husband’s debts often acts as a “volunteer”, receiving no direct financial or commercial benefit from the arrangement. In those circumstances, the law imposes a degree of responsibility on lenders who rely on the husband to obtain the wife’s consent.
Unlike general equitable undue influence, the Yerkey v Jones principle does not require proof that the lender participated in or knew of the husband’s misconduct. Instead, liability may arise simply because the lender relied on the husband to explain the transaction to the wife.
Although the doctrine remains part of Australian law, it has attracted criticism for reflecting outdated assumptions about the vulnerability and dependence of married women. Nevertheless, Australian courts continue to recognise the principle as an important equitable protection in guarantee transactions.
Yerkey v Jones (1939) 63 CLR 649, stated that if a creditor influences a debtor to obtain a guarantee from his wife, the creditor should be held responsible for any unfair or improper conduct of the husband towards his wife, is no longer applicable. The applicants relied on findings that the wife was not advised to seek independent advice, was not informed of the account status, and was not encouraged by bank officers to consider her own interests.
Garcia v National Australia Bank Ltd also raised whether the wife acted as a surety without personal benefit and whether she encumbered her property to secure her husband’s debts. Notably, in Garcia, the Court considered that the principle may extend to “long-term and publicly declared relationships short of marriage between members of the same or of the opposite sex” or to a husband acting as surety for a wife.
Background
Di Giannantonio by his tutor Tucker v Di Giannantonio [2026] NSWCA 69 was an appeal from Williams J’s decision in Maria Di Giannantonio v Michael Di Giannantonio [2025] NSWSC 346. The proceedings followed the death of Michele Di Giannantonio in 2009. Maria, the respondent and sole beneficiary under the 2007 Will, transferred her interests in properties at Annandale and Leichhardt to Mamro Pty Ltd (the second appellant), controlled by Michael (the first appellant). The respondent’s shares in family companies declined in value after the first appellant established a new business. The Respondent retained the family home in Haberfield, which she mortgaged to secure a loan for the second appellant. Subsequently, disputes arose, leading to the first appellant leaving the family home.
In May 2018, the respondent permitted the first appellant to return to the Haberfield property, subject to the first appellant’s agreement to execute a deed. After negotiations, the first and second appellants and the Respondent executed the 2018 Deed. In 2022, the Respondent sought specific performance of the deed and approval under s 95 of the Succession Act 2006 (NSW) for the first appellant’s release of any right to apply for a family provision order against her estate. The Court granted the relief.
The first and second appellants filed a notice of motion, later amended, seeking to adduce further evidence on appeal in support of grounds 6-8, which related to thefirstappellant’sss legal capacity at trial. The remaining grounds of appeal were as follows: Whether the primary judge erred in granting the release under s 95 of the Succession Act (release issue).
– Grounds 9-13: Whether the primary judge erred in finding the 2018 Deed was delivered in escrow without the issue being raised (procedural fairness).
– Grounds 14-16: Whether the parties were bound by the 2018 Deed by mutual assent (mutual assent issue).
– Ground 17: Whether the primary judge erred in refusing leave to seek a stay of part of the final orders (stay application).
The Court of Appeal (Griffiths AJA, Ward P and Free JA agreeing) refused leave to adduce further evidence and to add proposed grounds 6-8. The evidence regarding the first appellant’s capacity could have been obtained with reasonable diligence for use at trial. The additional affidavits lacked probative value and did not establish a high probability that the first appellant lacked legal capacity at the relevant time. Leave was refused.
Fresh Evidence on Appeal
In Akins v National Australia Bank (1994) 34 NSWLR 155 at 159, Clarke JA (Sheller JA agreeing) stated that:
Although it is not possible to formulate a test that should be applied in every case to determine whether or not special grounds exist, there are well-understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are:
(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;
(2) The evidence must be such that there must be a high degree of probability that there would be a different verdict.
(3) The evidence must be credible.
The Court considered each affidavit filed with the amended 20 March Motion in relation to the second Akins condition. None, individually or collectively, established a high probability that the first appellant lacked legal capacity at the time of trial.
The Court of Appeal found that none of the affidavits submitted with the amended 20 March Motion satisfied the second Akins condition.
The respondent submitted that, where further evidence consists of testimonial statements from witnesses who have not been cross-examined, the Court should not make a finding of credibility. The Court accepted this submission. The Court found that admitting further evidence would prejudice the Respondent, given the protracted proceedings and her age. The application was made late, without an explanation for the delay. Leave to adduce further evidence was refused, except for the material identified in paragraph 3(g) relating to the first appellant’s evidence.
The question of whether a person is legally incapacitated is always a task-specific matter. The assessment of legal incapacity is task-specific and depends on whether the person can understand and evaluate the particular task at issue. Here, the relevant task was conducting the litigation, which required understanding, evaluating, and making decisions about the issues and possible consequences. The relevant question is not whether a litigant in person can represent themselves well; many self-represented litigants lack that ability but retain full legal capacity. The Court must determine capacity and may consider its own observations: [74].
Many of those principles explained recently by Kirk JA (Mitchelmore JA and Griffiths AJA agreeing) in Mahmoud v Ghahreman [2026] NSWCA 52 at [23]-[31], which may be summarised as follows:
There is a presumption that a person of full age is capable of managing their affairs, and a person asserting incapacity carries the burden of making good the claim (at [26]).
The question is not whether the person can manage their affairs in general, but whether a person is under a legal incapacity” “” is always a task-specific matter, dependent upon whether the person can understand and evaluate the particular task that is in question (at [28]).
As is the case here, the task or affair that had to be managed is the conduct of litigation, which involves understanding, evaluating, and making decisions about the issues and possible consequences of the proceeding (at [29]).
Where a person is self-represented, the level of capacity required will commonly be somewhat greater than that which is required to instruct a lawyer (at [30]).
Importantly, the relevant question is not whether a litigant in person can represent themselves well. Many self-represented litigants lack that ability but have full legal capacity (at [30]).
The Court must determine whether a person has legal capacity. Medical evidence is always likely to be helpful where available, but it is not determinative. The Court can take account of what it has observed (at [31]).
Mahmoud v Ghahreman [2026] NSWCA 52 applied.
Proposed grounds 6-8 lacked sufficient prospects. The transcripts did not support a finding that the first appellant lacked legal capacity. Although the appointment of a tutor was raised at trial, the first appellant did not pursue the application. Allowing these grounds would have caused further delay and prejudice to the Respondent. Leave to add grounds 6-8 was refused.
The proposed grounds raised a new factual issue not explored at trial. Granting leave would have caused further delay and prejudice to theRespondentt. The Court refused to permit reliance on proposed grounds 6-8. The appeal was dismissed.
In determining whether a release is fair and reasonable under s 95(4)(c) of the Succession Act, the Court is not required to conduct a detailed analysis. The first and second appellants submitted that the primary judge could not have been satisfied as to fairness and reasonableness due to a lack of evidence regarding the value of the estate’s assets or the parties’ financial positions. The Court rejected this submission.
The Court of Appeal found the fundamental difficulty with the appellant complaints predicated on the proposition that, in determining whether a release (or perhaps more accurately having regard to the terms of s 95(4)(c), the provisions of any agreement to make a release) is fair and reasonable, the Court must embark upon a detailed and reasoned examination of the value of assets which are likely to form part of the estate, the value of the benefit that the releasor is obtaining, and the financial position of interested parties in the estate. This proposition is inconsistent with Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4. There, Ward JA (Meagher and Gleeson JJA agreeing) rejected the proposition that
“There could be no proper exercise of the discretion to approve a release without an oral hearing or without the publication of written reasons addressing each of the separate s 95(4) matters.”
Her Honour noted that the proposition is
“not supported by either authority or the practice adopted generally in these matters (and would impose an intolerable burden on the resources of the cour” at [159].
Ward JA added at [163]-[164] that:
… the fact that the primary judge did not have before him evidence of thetestator’sss] will or of her testamentary intentions, nor evidence of the financial circumstances of the first (or second)Respondentt [i.e.theappellant’sss siblings], did not preclude the primary judge coming to an assessment as to whether the Deed of Release embodied an agreement that was financially or otherwise to the advantage of the appellant, was prudent consideringtheappellant’sss interests, and was fair and reasonable in all the circumstances.
The primary judge was required to assess whether, from thefirstespondent’ssss perspective, it was advantageous, prudent, and fair and reasonable to relinquish any further claim onthedeceased’sss estate and any future claim onhermother’sss estate in exchange for the settlement provided by the Deed of Release.
In this case, Williams J found that the terms of the 2018 Deed were fair and reasonable. This is reflected in Her Honour’s reasoning at [384]”
“… it was both advantageous and prudent for Michael to make the release in August 2018 to quell the family dispute that had arisen from his conduct … to secure a legal right of residence at the Haberfield property for himself and his daughter which Michael regarded as important in the context of his forthcoming family law dispute with Melanie, and to secure a right of first refusal to purchase the Haberfield propertyfromMaria’sss estate following her death which the first said in cross-examination was also very important to him”
Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 applied.
The first and second appellants did not contend at trial that there was insufficient evidence of the value of relevant assets or liabilities. They should not now be permitted to challenge theprimaryjudge’sss exercise of discretion under s 95 of the Succession Act.
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 applied.
Ground 5 is only relevant if the first and second appellant succeeded on appeal. As they have not done so, the ground does not fall for determination: [186]. As to grounds 9-13 (the so-called “surprise rule” and procedural fairness rule): The Respondent
The Respondent pleaded and maintained throughout the trial that the 2018 Deed was entered into and was enforceable between the parties.
Williams J did not raise a new issue by characterising Ground 5 as not arising, given that the first and second appellants were unsuccessful on appeal. The first appellant, although self-represented, could appreciate. This contention does not accurately reflect how the issue was pleaded at trial. In her statement of claim filed on 28 January 2022, the Respondent alleged that the parties entered into a wholly written deed, thereby clearly asserting that the 2018 Deed was entered into and enforceable as a deed.
The first and second appellants were on notice of that case. In their further amended defence, the first and second appellants denied that the 2018 Deed was enforceable in light of the circumstances of its execution. In her amended reply, the Respondent raised three additional or alternative grounds for its binding force. None of these alternative bases detracted from the respondent’s original allegation that the parties entered into a binding deed on 12 October 2018. The Respondent also specifically pleaded that the first and second appellant
“executed and delivered the Deed to Maria on or about 22 August 20 ” and that “Maria executed and delivered the Deed on 12 October 20″.
The Court of Appeal held that these grounds should fail for the same reasons as grounds 9-11. At first instance, the Respondent raised the question of whether the 2018 Deed was entered into and enforceable between the parties. Williams J did not raise a new issue by describing the deed as being in escrow, and further evidence or submissions were not required for the first appellant to understand the issue.
It is also relevant to note what Williams J said at the commencement of the hearing about this matter when her Honour was summarising, largely for the assistance of the first and second appellant, the key issues arising from the pleadings:
“HER HONOUR: … Then there’s a dispute which I’ll have to decide about whether the deed that was signed on 12 October 2018, which provided for you and Mamro to take all reasonable steps to sell the quarry, and to use the sale proceeds to discharge the mortgage by no later than 2 October 2020; even if the quarry wasn’t sold. There’s a dispute about whether that deed was binding and enforceable, and as I understand your defence you and Mamro say that you did sign the deed, but it’s not enforceable because Maria signed it after she had already rejected some of the handwritten changes that were incorporated into the version of the document that you had signed.
Maria however says that that doesn’t mean the deed wasn’t binding and there was no objection from you or from Mamro after she signed the deed and delivered it to you on 12 October 2018, and that you’ve both acted subsequently on the basis that the deed was binding on you, and that’s – according to Maria – no longer open to you and to Mamro to assert that the deed was not binding or enforceable. So those are the disputed issues, the first set of disputed issues about that deed. Assuming that the deed was binding in that way that it was signed I will then have to decide whether it’s void or unenforceable, or should be set aside on the basis that you say you were suffering under a special disadvantage when you signed it.” at 156
There was no denial of procedural fairness. The first and second appellants had a full opportunity to make submissions in response to the respondent’s argument that the first appellant executed and delivered the Deed in August 2018, enabling the respondent to execute it as a binding deed in October 2018. They also had the opportunity to address the legal character and effect of these events, including whether the deed had been delivered in escrow.
For completeness, Griffiths AJA rejected any submission to the effect that Williams J should have assisted the first appellant as a litigant in person by making specific reference to the escrow condition point and explaining it to him. As noted above, at the outset of the hearing, her Honour referred to the question of whether the 2018 Deed was binding and enforceable in general terms as one of the key issues arising at the trial. In the Court of Appeals respectful view, Williams J did not need to descend into any greater detail, which may have jeopardised her Honour’s neutrality and impartiality. It is one thing to assist a litigant in person by describing matters of practice and procedure (sometimes at some length). Still, very different considerations apply to substantive legal issues (see generally Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley JA, Giles and Whealy JJA agreeing; Chalik v Chalik [2025] NSWCA 136 at [65]-[72] per Bell CJ, Payne and Free JJA).
Hamod v New South Wales [2011] NSWCA 375; Chalik v Chalik [2025] NSWCA 136 considered.
The 2018 Deed
The 2018 Deed was not incomplete. It could operate once the escrow condition was satisfied.
The first and second appellants submitted that the 2018 Deed was incomplete and could not serve as the basis for an escrow, relying on objections raised by the respondent’s solicitor. The primary judge held that these objections concerned only the form of the deed, not its completeness. Unlike the draft deed in Fisher v Westpac Banking Corporation (1993) 43 FCR 385, which was incomplete due to blanks, the 2018 Deed could operate once the Respondent executed it.
A document that is signed, sealed, and delivered is presumed to be a deed, but this presumption can be rebutted by evidence that the parties did not intend to be bound, assessed in light of all the circumstances. The surrounding circumstances, including correspondence between the parties’ legal representatives, suggest that the first appellant intended to be bound by the 2018 Deed following the respondent’s signature.
It is further argued by the first and second appellant that signing, sealing and delivery of a deed merely gives rise to a rebuttable presumption that there was an intention to deliver the Deed in escrow, which can rebutted by considering all the circumstances of its execution (citing Lewski v Australian Securities & Investments Commission (No 2) (2017) 352 ALR 64; [2017] FCAFC 171 at [84]). Lewski provides that the intention of the parties is the decisive factor in determining the operative date of a deed. The intention of the parties is to be established not only by reference to the actual date of the Deed, which forms a rebuttable presumption as to the operative date of the Deed, but also by reference to other evidence of intention that can be discerned from the circumstances.
In Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500 at 9503, Rogers J held that it may be inferred that a document that purports to have been signed, sealed and delivered is in fact a deed. That presumption of delivery, may however, be rebutted by evidence the parties did not intend to be bound, which must be ascertained by considering the nature and all the circumstances of the case (see Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [75] per Leeming JA, Bell P and Brereton JA agreeing, quoting Lady Naas v Westminster Bank Ltd [1940] AC 366 at 399 per Lord Wright).
The first and second appellant identified the following circumstances as indicating that the parties did not intend to be bound:
– The first appellant’s solicitor advised that the hand-annotated and signed fifth version of the Deed would not be accepted.
– The Respondent’s solicitor objected to the form of the Deed in correspondence.
– The 24 September 2018 email from the respondent’s solicitor, enquiring whether the first appellant would sign the Deed referred to an earlier draft, not the hand-annotated version.
– No time was stipulated for the Respondentt to execute theDeedd.
However, these circumstances omit other relevant context from the correspondence between the parties’ solicitors. In an email dated 23 August 2018, the first appellant’s solicitor noted that, despite advice that signing a hand-annotated deed was irregular, the first and second appellants proceeded to sign the deed and were anxious to deliver it to the first appellant’s mother without delay. This supports the conclusion that the first appellant intended to be bound by the 2018 Deed upon the respondent’s signature.
Wardley Australia Ltd v McPharlin (1984) 3 BPR 9500; Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 considered.
Mutual Assent
Grounds 14-16 concerned whether Williams J erred in finding that the parties were bound by the 2018 Deed on the basis that they had manifested their mutual assent to its terms (the mutual assent issue):
The primary judge found that, even if the 2018 Deed was not valid, the first appellant and the Respondent had manifested mutual assent to its terms, binding them as a matter of contract law. It was not necessary to identify a precise offer and acceptance; the correct analysis is whether, in all the circumstances, an agreement can be inferred.
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 applied.
The Stay Application
In ground 17, the First and Second Appellants argued that Williams J erred in refusing leave to file a notice of motion seeking a stay of the enforcement of part of the final orders (the stay application issue).
It was unnecessary to determine this ground, as it lacked utility and would not affect the outcome of the appeal.
The first and second appellants argued that the primary judge erred in refusing leave to file a notice of motion seeking a stay of enforcement of the costs orders. The Court found it unnecessary to determine this ground, as it would not affect the outcome of the appeal.
The appeal raised significant questions concerning family provision releases, procedural fairness, contractual assent, escrow delivery, and litigation capacity. Michael and his company, Mamro Pty Ltd, challenged the enforceability of the deed and argued that the primary judge erred in approving the release and in determining that the agreement legally bound the parties. Additional issues concerned whether Michael lacked legal capacity during the proceedings and whether procedural fairness was denied when the Court relied on findings not directly raised by the parties.
Di Giannantonio by his tutor Tucker v Di Giannantonio [2026] NSWCA 69 illustrates how family arrangements entered into during emotionally charged succession disputes can later give rise to complex litigation involving equitable principles, contractual interpretation, and succession law protections.