Ip v Chiang

As administrator of the estate of the late Mr Lo Sing Ip (“the deceased”), pursuant to a special grant of administration made on 12 October 2018, Ms Xiao Feng Ip, nee Liang, also known as Lisa Ip (the plaintiff) sues Ms Lisa Tsui Pen Chiang (the first defendant), inter alia, for equitable relief arising from the transfer to her, and her subsequent sale, of the deceased’s residential property being Lot 4 in Deposited Plan 33976 and known as 7 Cooper Street, Redfern (“the Redfern Property”).

The focus of the proceedings is upon dealings with the Redfern Property (whereby, in two stages, it was transferred from the name of the deceased into the name of the first defendant); her leasing and sale of the property after it was transferred into her sole name; and her dealings with the proceeds of its sale.

The context in which the transactions under examination were effected requires consideration of a range of events, including the following:

In essence, the plaintiff contends that the first defendant tricked the deceased (an elderly cognitively impaired widower) into transferring to her his principal asset (the Redfern Property) through the pretence of entry into what, in a non-technical sense at least, can be characterised as a “sham” process of marriage, separation, property settlement and divorce.

As these proceedings are presently constituted, the first defendant is the only defendant against whom the plaintiff claims relief. By orders made on 3 July 2020 (which provided for settlement moneys to be paid into court), the plaintiff settled compensation claims made against:

Each of those parties acted in the course of a professional practice (as a conveyance or solicitor) in transactions purportedly between the deceased and the first defendant. As the deceased’s representative, the plaintiff sued each of them for compensation for breaches of duty allegedly owed by them respectively to the deceased’s estate. Against each of them the plaintiff negotiated a settlement.

By the orders made on 3 July 2020, the second defendant agreed to pay $116,667.00 in full and final settlement of the estate’s claim against him; the third and fourth defendants agreed to pay to the plaintiff the sum of $466,666.00 in full and final settlement of the estate’s claims against them; and the fifth defendant agreed to pay the sum of $116,667.00 in full and final settlement of the estate’s claims against it.

The Court’s orders provided that, upon payment of those sums by the second to fifth defendants, the proceedings against them were dismissed, with no orders as to costs, the intent being that each party would bear their own costs of the proceedings.

The orders provided for settlement sums (totalling $700,000.00) to be paid into court, to be held by the Court until further order, in these proceedings or in the proceedings numbered 2019/00290122 in the Probate List of the Court.

The sum of $700,000, plus accrued interest, is thus presently held on behalf of the estate of the deceased in the current proceedings.

In the current proceedings the plaintiff, on behalf of the estate of the deceased, essentially seeks to have the first defendant account as a constructive trustee of the Redfern Property and proceeds of its sale traced into other property.

In the probate proceedings the Court is seized of a dispute, about competing entitlements to the intestate estate of the deceased, between Wing Tong Ip (the husband of the plaintiff in the current proceedings, who believes himself to be the son, the only identifiable child of the deceased) and Ms Guo, who claims (by reason of the disputed marriage of 26 April 2016) to be the widow of the deceased.

The paternity of Wing Tong Ip and the validity of the deceased’s marriage to Ms Guo are both in issue in the probate proceedings, presently listed for a hearing commencing on 20 September 2021. Neither issue is before the Court for determination in the current proceedings. Wing Tong Ip and Ms Guo are not parties in the current proceedings, although they have given evidence for the plaintiff and the first defendant respectively.

The plaintiff and the first defendant both adduced evidence bearing upon the validity of Ms Guo’s alleged marriage to the deceased as going to the credibility, or otherwise, of the first defendant. She was actively involved in arranging the marriage ceremony. It was nevertheless agreed between the plaintiff and the first defendant that the status of the marriage is not presently before the Court in these proceedings and that the plaintiff’s case does not depend upon a determination of the validity of the marriage.

The first defendant complains that the plaintiff has no standing to sue her on behalf of the estate of the deceased because, she contends, the plaintiff has no interest in the estate and the plaintiff’s husband is not a child of the deceased as he claims whereas, she contends, Ms Guo, as the deceased’s widow, is entitled to the whole of the estate under the intestacy provisions of Chapter 4 of the Succession Act 2006 NSW.

The plaintiff’s standing derives from the order of the Court appointing her as administrator of the deceased’s estate. The efficacy of that order does not depend upon the existence, or otherwise, of a family connection with the deceased. Despite the first defendant’s objection to the plaintiff’s standing, no application has been made by her for revocation of the order appointing the plaintiff as administrator.

If and to the extent that the plaintiff succeeds in these proceedings, relief granted to her will be granted to her in her representative capacity, not in her personal capacity. Property or compensation recovered from the first defendant will be held by the plaintiff on behalf of the estate of the deceased, subject to orders made by the Court for due administration of the estate.

In the absence of any other claimant, the likelihood is that the respective entitlements (if any) of the plaintiff’s husband and Ms Guo to the estate will be determined in the probate proceedings. The pendency of the probate proceedings is no impediment to a determination of these proceedings in advance of a determination of the probate proceedings.

To the observation of his general medical practitioner (Dr Dominic Pak), the deceased was an unsophisticated, poorly educated man who could not speak, read or understand English and who only ever conversed with him in Cantonese using a particular dialect derived from the Taishan District in China. Fluent in both Mandarin and Cantonese, Dr Pak never conversed with the deceased in Mandarin or heard the deceased speak in Mandarin.

The evidence of the plaintiff, her family and others (which I accept) is that the deceased did not speak or understand Mandarin. The first defendant (a Mandarin speaker) agrees that the deceased was a Cantonese speaker. She says that they were able to converse because she had some Cantonese. The marriage celebrant who presided over the purported marriage of the deceased and Ms Guo on 26 April 2016 conducted the ceremony in Mandarin, but the deceased “repeated his vows” in Cantonese. The weight of the evidence is that the deceased spoke only his particular dialect of Cantonese, and experienced difficulty in conversing with people who spoke only Mandarin. The probability is that in purportedly “repeating his vows” on 26 April 2016 he was prompted to do so.

Dr Pak had ample opportunities to observe the deceased between mid-1989 (his first attendance upon Dr Pak) and mid-2015 (shortly before the deceased was institutionalised, first by hospitalisation and then by admission to a nursing home). According to the doctor’s records, his last consultation with the deceased was on 22 June 2015, although on or about 4 August 2015 he received an assessment of the deceased’s personal circumstances by an Aged Care Assessment Team (“ACAT”).

Dr Pak remembered the deceased as, at times, a stubborn man who was often preoccupied with looking after his home in Redfern; a man who was difficult to follow and understand; a man who used very simple language in Cantonese to express himself and would speak slowly, only ever using simple concepts or words in conversation; and a man for whom Dr Pak used simple language and concepts in his communications with him in order to assist his understanding.

Throughout the time the first defendant knew the deceased (2013-2017) he was a pensioner and his principal, and only substantial, asset was (subject to any determination made in these proceedings) the Redfern Property.

The first defendant was 20 years younger than the deceased and, throughout the time of their acquaintance, a person physically much more active than him.

She is an intelligent, sophisticated, determined, forceful and well-travelled woman. The deceased’s lack of sophistication, his poor education and his weak mind would have been obvious to her throughout their acquaintance. She could not have but known that he was vulnerable to exploitation, as was the fact. She deliberately took advantage of his vulnerability over about 4 years to secure his property for herself, isolating him as best she could from the plaintiff, her husband and their children, people he had recognised as family.

She has had a gambling habit (if not, more correctly, an addiction) since a time before she first met the deceased.

She does not deny this. Records of her gambling at The Star Casino in Sydney confirm it. She has, at least in the past, routinely gambled large sums of money. When she borrowed $150,000 from the Commonwealth Bank of Australia against the security of what had been the deceased’s family home before her arrival on the scene (the Redfern Property), the borrowed sum was paid by her to the Casino. She regularly travelled to interstate casinos for the purpose of gambling. She was in the habit of carrying gambling chips instead of money. After the commencement of these proceedings, she dissipated funds, in gambling, in contravention of asset preservation orders.

In giving evidence in these proceedings she presented as a superficially plausible witness, living a lie. In explaining how her relationship with the deceased commenced, and how he came to marry her and to make her a joint tenant of his home for no consideration, her profession of transcendent love did not ring true. Neither did her explanation of a mutually agreed divorce following her introduction of her former mother in law to the deceased or, as she says, her benign acceptance that she had been displaced in the deceased’s affections by her former mother in law. Her evidence that she paid $150,000 (or more) in cash to the deceased (in unquantified instalments at indeterminate times), justifying a family law settlement according to which the deceased purportedly divested himself of his remaining interest in his home in her favour, lacks corroboration except for formal acknowledgments by him in legal documents of doubtful validity.

Any affection she manifested for the deceased was concocted, brief and intermittent if judged against the amount of time she spent away from his company. Throughout the time of her acquaintance with the deceased she appears to have endeavoured to control the access other people may have had to him, and to have moved persistently towards acquisition of his principal asset, his home of many years, leaving him to life in a nursing home funded by his pension. In the process of acquisition of his property, she appears to have been less than frank with his nursing home, the Land Titles Office and the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) and the NSW Trustee, his financial manager.

Her insistence, in the teeth of objective evidence to the contrary, that the deceased never suffered from dementia undermines her credibility and her reliability as a witness of fact.

Plausible though she may have been in demeanour, on the determination of any critical question in these proceedings she is not a person to be believed on her oath without independent corroboration. Knowing that the deceased was vulnerable to exploitation, she set out to exploit him.

In reaching this view I have made allowances for the fact that the first defendant claims to have a poor grasp of English and she gave her evidence through an interpreter. I have also taken into account the possibility that some of the events she describes in her evidence have a cultural aspect to them that entitles her to an empathetic assessment.

The deceased died in Sydney on 23 August 2017, aged 84 years. He was born on 8 February 1933 in China.

The deceased may have married Cai (or Choi) Li in China in about 1959, but whether or not that was so is not clear on the evidence.

Between 1960 – 1975 or thereabouts the deceased lived in Hong Kong. He emigrated to Australia in 1975 and became an Australian citizen on 29 March 1985.

Wing Tong Ip’s evidence is that the deceased told him that he had an ex-nuptial daughter (named, perhaps, Wing Chi) living in Hong Kong, in addition to Wing Tong Ip, but that she had disclaimed the deceased and her present whereabouts, and correct name, are unknown.

At about the time the deceased moved from China to Hong Kong, Wing Tong Ip was, on 29 February 1960, born in China. He is also known as Yong Dong Ye.

Whatever may be the finding as to Wing Tong Ip’s paternity in the probate proceedings, this judgment proceeds on findings that the deceased openly acknowledged Wing Tong Ip as his son and that Wing Tong Ip, his wife (the plaintiff) and their children conscientiously believed the deceased to have been his father.

Evidence of the first defendant that the deceased did not mention this relationship to her, and that he introduced Wing Tong Ip to her only as “a friend”, does not (even if accepted) displace evidence of Wing Tong Ip and his family (which I accept) that they, in fact, enjoyed a familial relationship with the deceased.

At the invitation of the deceased, Wing Tong Ip migrated to Australia on 12 March 1988. Australian Government records show that he was sponsored by the deceased (named as his father), supported by the deceased’s then wife, Kiu Chai, and a job reference from Dorothy Quan, a witness for the plaintiff in these proceedings. He married the plaintiff, at the Redfern Property, on 10 January 1990.

Wing Tong Ip was introduced to the plaintiff by the deceased and his lifetime friend, her grandfather. She was born on 12 April 1966 in China. She has lived in Australia since her arrival on 17 March 1989.

Between the time of their marriage and the birth of the first of their two children the plaintiff and Wing Tong Ip lived with the deceased at the Redfern Property.

There are two children of the marriage: a son (James Ip), born in November 1990 and a daughter (Louise Ip), born in January 1997.

The evidence of Wing Tong Ip is that the deceased invited him, expressly as his son, to emigrate to Australia to live with him. The deceased was introduced to the plaintiff as the father of Wing Tong Ip and the plaintiff has, since that time, regarded the deceased as her father-in-law. The children of Wing Tong Ip and the plaintiff have grown to maturity regarding the deceased as their paternal grandfather.

Between 25 November 1980 and 9 June 2012 the deceased was married to Kiu Chai, a marriage terminated by her death. Dr Pak regularly treated both the deceased and Kiu Chai. He never knew the deceased to be with any partner or wife other than Kiu Chai.

Whether his marriage to Kiu Chai was the deceased’s first or second marriage may be the subject of debate bearing upon the paternity of Wing Tong Ip. It was, by any measure, the deceased’s deepest, happiest and longest experience of marriage. Kiu Chai was born on 7 September 1935 and became an Australian citizen on 6 March 1975. Shortly after their marriage he and Kiu Chai put down roots at the Redfern Property.

On or about 2 March 1981 the deceased and Kiu Chai, as joint tenants, purchased the Redfern Property as their matrimonial home. Memorandum No. S419761 dated 2 March 1981 was registered in their favour on 24 April 1981. By the time of Kiu Chai’s death in 2012, the property was unencumbered.

Upon the death of Kiu Chai on 9 June 2012 the deceased, as the surviving joint tenant, became entitled to be registered on the title of the Redfern Property as the sole proprietor. The signature of the deceased on Notice of Death registered No. AH991989 (dated and registered on 3 September 2013) was witnessed by the first defendant.

It was after the death of the deceased’s wife, Kiu Chai that the first defendant entered his life.

The first defendant was born on 29 May 1953. She came to Australia on 16 January 1988. She became an Australian citizen on 8 April 1991.

She says that she first met the deceased in early 2013, at a time when each of them was mourning a spouse. Her husband, Tsan Si Cheng, had died on 21 December 2012. According to her evidence, she and the deceased came together in their grief, enjoyed each other’s company and decided upon a relationship. She says she commenced living at the Redfern Property in about April 2013, shortly after she met the deceased.

The evidence discloses that the first defendant had the following marriages before her marriage to the deceased:

Although the first defendant commenced living at the Redfern Property in or about April 2013, throughout her relationship with the deceased (however it be characterised) she was often absent, travelling overseas. Those absences were explained by her as necessary to enable her to attend to litigation in Taiwan relating to Tsan Si Cheng’s deceased estate and trips to the United States to attend to her elderly parents.

The first defendant described the Taiwan litigation as an unsuccessful case (commenced by her husband Tsan Si Cheng before his death, continued by her after his death) to recover property from his daughter.

On the first defendant’s evidence, the deceased became weary of her many absences and turned to Ms Guo for companionship.

The plaintiff invites the Court to discern in the first defendant’s marriages a pattern of serial “gold digging” supportive of a finding (which is independently available) that the first defendant married the deceased as a means of acquiring his wealth. Her first husband was evidently a wealthy man, whose association with her may have exposed her to a high life and fed her gambling habit. Her third husband evidently had wealth enough for it to be the subject of litigation at or about the time of his death.

The circumstances of the second marriage are curious if only because of the first defendant’s continuing contact with her former husband – she leased the Redfern Property to him and, she says, she sold to him or his son a property acquired consequent upon her sale of the Redfern Property – not to mention her close relationship with her former mother-in-law, Ms Guo, the mother of her second husband.

In my opinion, the evidence does not rise high enough to support a finding, such as that for which the plaintiff contends, that the first defendant was a “serial gold digger”, marrying men for their money and moving on. Not enough is known of the circumstances of her various marriages to permit such a finding to be made. I decline to draw any inference against her based upon the number or nature of her marriages.

That said, the relationship between the first defendant and Ms Guo invites reflection of a different order. The plaintiff invites the Court to infer that the first defendant introduced Ms Guo to the deceased and engineered a form of marriage between them for the purpose of placing an impediment in the way of any investigation of, or challenge to, her acquisition of the Redfern Property.

Facts pointing in that direction include: the first defendant’s involvement of Ms Guo in the events of 6 July 2015, when a Binding Financial Agreement was executed making provision for the first defendant to acquire the Redfern Property outright; the fact of the first defendant’s leading role in arranging for the purported marriage of the deceased and Ms Guo on 26 April 2016; the fact that that marriage took place only after the first defendant, on 22 April 2016, became the sole registered proprietor of the Redfern Property; the fact that the first defendant did not disclose the Guo marriage to the NSW Trustee (on 6 July 2016) or NCAT (on 26 August 2016) at a time when, to her knowledge, enquires were being made as to the state of the deceased’s affairs; and the fact that, on her evidence, she continued from time to time to visit the deceased at his nursing home until the time of his death, thereby protecting her investment by playing the role of a bona fide former wife and keeping track of his whereabouts and welfare.

The plaintiff’s characterisation of the first defendant’s conduct represents an inference available on the evidence.

Ms Guo appears to have been married (in 1955) only once before her disputed marriage to the deceased on 26 April 2016. She is a former mother-in-law of the first defendant. Her son, the first defendant’s second husband, and his son (her grandson), live in Australia.

The Redfern Property was ostensibly transferred by the deceased to the first defendant in two stages:

The first Memorandum of Transfer was executed on or about 9 September, shortly after the deceased and the first defendant (on 3 September 2013) ostensibly married, apparently for the purpose of effecting a transfer of the property which (because the parties were married) was exempt from stamp duty. The first defendant arranged her marriage to the deceased, very quickly, after being told by the conveyancer Michael Li of a stamp duty exemption applicable to an intra-marriage transfer of land. The Transfer has a marking “no duty payable” dated 30 September 2013. It was lodged for registration by Mr Li.

The validity of the deceased’s marriage to the first defendant is in dispute. The plaintiff contends that he lacked the mental capacity to effect a valid marriage and to effect a valid transfer of the Redfern Property. As appears on the face of the Memorandum of Transfer, the conveyancer, Michael Li, purportedly acted for both the deceased and the first defendant on the transfer.

On any view, there was a close connection between the ceremony of marriage performed on 3 September 2013 and steps taken to change the title to the Redfern Property in ways favourable to the first defendant’s interests.

Immediately after the marriage ceremony, on 3 September 2013, the first defendant and the deceased attended the Land Titles Office. There the first defendant prepared, in her handwriting, two forms bearing the signature of the deceased. The first was a form entitled “Change of Name” registered as dealing number AH991988, intended to change the name of the deceased on the title to the Redfern Property so as to accord with the name recorded in his passport, a step recommended by an officer of the Land Titles Office. The second form, a “Notice of Death”, registered as dealing number AH991989, recorded on the register of titles the death of the deceased’s wife (Kui Chai Cheung) on 9 June 2012.

Although each form bears the signature of the deceased, it is plain from the documents, and their dealing numbers, that the first form was prepared in aid of the second. The first defendant caused both forms to be lodged for registration.

On 9 September 2013 the deceased and the first defendant met Mr Li. On his advice, a fresh Change of Name form (registered as dealing number AI3560) was lodged, by him, to correct the order in which the deceased’s several names were registered on the title. At that meeting the Memorandum of Transfer, undated but subsequently registered as the dealing AI136200, appears to have been executed by the deceased. Later that day the first defendant departed Australia for Taiwan, returning to Australia on 21 September 2013.

The second transfer (on 22 April 2016) was effected ostensibly to give effect to the Binding Financial Agreement dated 6 July 2015, allegedly made between the deceased and the first defendant consequent upon their “separation” on 15 May 2014 and in anticipation of their divorce (courtesy of an order of the Federal Circuit Court of Australia made on 22 September 2015) effective on 23 October 2015.

The plaintiff contends that the deceased lacked the mental capacity to enter the Binding Financial Agreement and to execute the Memorandum of Transfer pursuant to which the Redfern Property was transferred into the sole name of the first defendant.

The Binding Financial Agreement appears to have been drafted by Ren Zhou Lawyers. Ying Zhang of that firm signed a certificate that she had given independent advice about the Agreement to the first defendant. Yu Chen of Juris Cor Legal signed a certificate that she had given the deceased independent legal advice. Ms Zhang witnessed the signatures of the deceased and the first defendant on the Memorandum of Transfer dated 22 April 2016 and certified it as correct as solicitor for the first defendant.

If valid, the Binding Financial Agreement and the Memorandum of Transfer executed pursuant to the Agreement were manifestly improvident transactions even if (which I am not satisfied occurred) the first defendant paid $150,000 to the deceased in return for his interest in the Redfern Property. The first defendant had made no contribution to the marriage, either in financial or non-financial terms. She had brought no property to the marriage. She made no financial contribution to the marriage during its currency. She largely abandoned the deceased after their marriage except to the extent necessary to take control of the Redfern Property, leaving him with next to nothing. Throughout the term of the marriage she was overseas, away from the deceased, significantly more days than she was in his company. Even if in law a valid marriage, it was, in operation, unusual for its want of regular cohabitation.

Shortly after the Redfern Property was transferred into her name, the first defendant dealt with the property in a number of transactions:

Following the first defendant’s sale of the Redfern Property she applied proceeds of the sale, inter alia, in the purchase of other property:

The first defendant purchased a residential unit known as 100/313-364 Harris Street, Pyrmont (Folio Identifier 100/SP18021) for $615,000. The Memorandum of Transfer that effected the purchase was undated, but it bears a Land Titles Office date of 7 February 2018. It was registered as dealing number AN96956. The first defendant concedes that this property was purchased by her using the Pyrmont Street property as security for finance provided by the Commonwealth Bank of Australia.

Shortly after its purchase the first defendant leased the Pyrmont residential unit to Wah Chan for 18 months at $680.00 per week.

On or about 12 October 2018 (the date upon which she was appointed as a special administrator of the estate of the deceased) the plaintiff lodged caveat number AN7800782 against the title of the Pyrmont Street property (folio identifier 479/SP50946) and the two Harris Street garage spaces (respectively folio identifier 153/SP75156 and folio identifier 152/SP75156) claiming that those properties were held on a constructive trust for the deceased’s estate. By Court orders made in these proceedings on 11 and 18 February 2020 (given effect by dealing numbers AP893632 and AP910471, respectively, in the form of a “Request” to the Registrar General), the operation of the caveat was extended to the Harris Street property (folio identifier 100/SP18021) until further order.

The first defendant is currently registered as the proprietor of an estate in fee simple in each of the four properties the subject of the caveat. She holds the Pyrmont Street property and the two Harris Street garage spaces unencumbered, but subject to the caveat. On the face of the title to the Harris Street property her registration as proprietor of an estate in fee simple (by virtue of registered memorandum of transfer AN96956) is subject to a mortgage (registered dealing number AN96957) in favour of the Commonwealth Bank of Australia. The plaintiff’s caveat ranks after that mortgage.

The first defendant says that she sold the Harris Street property shortly after she purchased it (on a date variously said to be in February or May 2018), to her former husband Mr Haisheng Xu (or his son, Mr Tian Yun Xu, also known as Tanyong Shi and nicknamed “Yongyong”), because she could not afford to retain it. Completion of any such sale appears to have been impeded by the plaintiff’s caveat lodged against the title, but the Commonwealth Bank mortgage may have been paid out by a purchaser. The first defendant says that she sold the property for a price of $600,000 (incurring a loss on the sale) but that she received $620,000 because she borrowed $20,000 to pay expenses.

Evidence of Ms Guo, the mother of Haisheng Xu and grandmother of Yongyong, is that the “purchaser” behind Yongyong was his mother, a resident of Shanghai who funded the purchase.

The plaintiff submits that the fact that the first defendant purchased property in Pyrmont, after her sale of the Redfern Property, is significant because the property purchased at Pyrmont is close to The Star Casino, a venue frequented by her. In itself, this may not be significant. However, it is consistent with the plaintiff’s case that the first defendant was an inveterate gambler, had a gambling problem, and imposed herself on the deceased as a means of acquiring resources to feed her gambling habit. Whilst that evidence does not, of itself, establish the case against her, it does provide evidence of a motive on her part to acquire a benefit from the deceased’s property.

The plaintiff contends that, to the knowledge of the first defendant, the deceased lacked the mental capacity: (a) to effect a valid marriage with her; and (b) to transact business with her directed to transferring the Redfern Property to her.

In challenging the validity of property transactions, the plaintiff relies upon principles governing non est factum (Petelin v Cullen (1975) 132 CLR 355, PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at 675D-E); mental incapacity (Gibbons v Wright (1954) 91 CLR 423 at 437-438, McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243 at 272, Hart v O’Connor [1985] AC 1000); unconscionability (Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia v Amadio (1983) 151 CLR 447, Louth v Diprose (1992) 175 CLR 621); undue influence (Johnson v Buttress (1936) 56 CLR 113) and a breach of fiduciary obligations (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96-97). Essentially, the plaintiff contends that the first defendant (through a process of marriage, property settlement and divorce which took advantage of the deceased’s vulnerability to exploitation) unconscientiously acquired legal title to the deceased’s principal asset, the Redfern Property, and used it for her own benefit in disregard of the interests of the deceased.

The first defendant contends that, in marrying her and transacting business with her, the deceased at all times acted as a free and capable person. She denies that he ever had dementia. She contends, moreover, that he was the moving party for each of the land transfers made in her favour and that she simply acquiesced in those transfers after expressing a protest. She contends that the plaintiff and her husband were only ever motivated in their dealings with the deceased by a desire to acquire his wealth.

There are four categories of transactions the validity of which is under challenge for a want of mental capacity on the part of the deceased.

The first in time relates to the purported marriage of the deceased to the first defendant on 3 September 2013 and, incidentally, to their application for divorce dated 6 July 2015, the “Divorce Order” made on 22 September 2015 and the parties’ divorce on 23 October 2015.

The second in time relates to the transfer by the deceased to the first defendant of an interest in the Redfern Property on each of 9 September 2013 and 22 April 2016 or thereabouts, incidentally involving his execution of the binding family law agreement on 6 July 2015.

The third category relates to the deceased’s purported execution of an enduring power of attorney on 25 November 2015 and an enduring guardianship appointment on 1 December 2015, execution of which was procured by the first defendant in aid of steps taken by her to transfer the Redfern Property into her name alone.

The fourth category comprises sundry documents executed in aid of that purpose: the joint statutory declaration made on 25 November 2015, the joint application for a replacement certificate of title signed on 25 November 2015 and the statutory declaration signed by the deceased on 2 April 2016.

In the plaintiff’s pursuit of recovery of property or compensation on behalf of the estate of the deceased, the primary focus for attention is on the second of these four categories. Each other category is in a sense incidental to it.

However, convenience attaches to an early consideration of the validity of the deceased’s marriage to the first defendant.

Under Commonwealth legislation (the Marriage Act 1961 Cth, section 23B(1)(d)(iii) and the Family Law Act 1975 Cth, section 51) a marriage is void, and may be declared a nullity, on the ground that the consent of a party to the marriage was not “real consent” because the party was “mentally incapable of understanding the nature and effect of the marriage ceremony.”

This Court has jurisdiction to declare a marriage invalid on either of two grounds:

Brereton J’s judgment in Young v Lalic has been approved by the Court of Appeal in Grace v Grace [2014] NSWCA 86 at [17]; Eberstaller v Poulos [2014] NSWCA 211 at [19]; and Singh v Singh [2018] NSWCA 30 at [250].

In these proceedings, the jurisdiction exercised is that identified by Brereton J. However, even if the jurisdiction called in aid is that identified by Young CJ in Eq, the Court should recognise the gravitational pull of the Commonwealth legislation by exercising its jurisdiction in a manner consistent with the legislation and case law giving effect to it.

Section 23B of the Marriage Act does not require a person to have a detailed and specific understanding of the legal consequences of marriage in order to have the capacity to give a valid consent; however, mere awareness of going through a marriage ceremony is not enough , a person must also understand the nature and effect of the ceremony involved: AK v NC [2003] FamCA 1006; 32 FamLR 16; [2004] FLC 93-178; Oliver (deceased) v Oliver [2014] FamCA 57.

In my opinion, at the time of the marriage ceremony on 3 September 2013 the deceased was mentally incapable of understanding the nature and effect of the ceremony.

At the time of the alleged marriage, the deceased was an elderly, unsophisticated man suffering cognitive impairment, probably the result of vascular dementia. Evidence of his general practitioner, Dr Pak, and lay observers (including a long-time family friend, Dorothy Quan, and a long-time neighbour, Ling Zhen Liang, as well as the plaintiff, her husband and their children) provides a foundation for a finding of mental incapacity, as does the expert evidence of the geriatrician, Dr Tuly Rosenfeld.

The course of events detailed in chronological order confirms both a finding of incapacity to marry and a finding that the first defendant knew or ought to have known of his incapacity. In my assessment, the first defendant would have had actual knowledge of his incapacity, transparently incapable as he was. However, if I am wrong about that she ought to have known of his incapacity in the sense that she knew of facts that would have suggested incapacity in the mind of any reasonable observer. Within a very short time of meeting him, the first defendant led the deceased through a marriage ceremony the rationale of which was to enable her to take an interest in the deceased’s home without liability for stamp duty on the transfer executed by him in her favour. The transfer was effected within a very short time of the marriage ceremony and immediately thereafter the first defendant went overseas, leaving the deceased to his own devices. She was able to do so only because he lacked the mental capacity to appreciate what was happening. A relative stranger had rushed him into a marriage ceremony for her own financial gain, acquired an interest in his home for no consideration and promptly departed the scene without providing for his care.

Throughout the course of a short marriage the first defendant spent a very large amount of time away from the deceased. She was a “fly in-fly out” nominal wife. As a pretext for a divorce and property settlement, she introduced to the deceased her former mother-in-law, an elderly woman ordinarily resident in China.

The first defendant’s story that she and the deceased fell in love and, while she was travelling overseas, she was displaced in the deceased’s affections by her former mother-in-law, is incredible.

Disbelief of the first defendant’s story does not establish that the deceased was “mentally incapable of understanding the nature and effect of the marriage ceremony” of 3 September 2013 or, more generally, that he did not give “a real consent” to the marriage. Disbelief of evidence does not, of itself, establish the converse: Edmunds v Edmunds and Ayscough [1935] VLR 177 at 186-187.

However, the strong tendency of the lay, medical and expert evidence before the Court is that the deceased lacked capacity; and the conduct of the first defendant is consistent with treatment of the deceased as a person whose capacity to understand any complexity was non-existent. During her acquaintance with the deceased, from beginning to end, she acted in a manner calculated to take advantage of his vulnerability to exploitation.

Against this, the first defendant failed to call evidence which could go to the validity of the marriage. No evidence was adduced from the marriage celebrant, the two formal witnesses to the marriage ceremony, a photographer who attended the ceremony, her friend who introduced her to the deceased or others in whose company, she says, she and the deceased together enjoyed. I infer that their evidence would not have assisted her case.

A finding that the first defendant knew, or ought to have known, of the deceased’s incapacity is not an element required for a finding under section 23B(1)(d)(iii) of the Marriage Act that their marriage was void, although it may have significance upon consideration of the validity of property transactions predicated upon the first defendant’s contention that she was the deceased’s wife.

In my opinion, the marriage was void within the meaning of section 23B of the Marriage Act 1961 Cth and it is open to the Court to make a declaration under section 51 of the Family Law Act 1975 Cth to the effect that it was a nullity.

The “Divorce Order” made on 22 September 2015, purporting to terminate the marriage was predicated upon a formal finding that “the marriage is proved”. The first defendant contends that this is sufficient to ground an estoppel precluding the plaintiff from challenging the validity of the marriage.

The first defendant’s contention is misconceived. A void marriage cannot be validated by an order for its dissolution: In the Marriage of Miller (1983) FLC 91-328; 9 FamLR 10; 49 ALR 689; Hayward v Hayward [1961] P 152 at 158-159. No estoppel operates against a Court exercising matrimonial causes jurisdiction to determine the truth as to the validity of a marriage: Thompson v Thompson [1957] P 19; Law Society of NSW v Weaver [1977] 1 NSWLR 67 at 73-74.

Whether the deceased had the mental capacity to perform a particular function, at a particular time, depends upon an assessment of his condition at the particular time.

Gibbons v Wright (1954) 91 CLR 423 at 437-438 provides authoritative guidance to an assessment of mental capacity. In their joint judgment Dixon CJ, Kitto and Taylor JJ observed that the validity of particular instruments depended upon the possession by parties to those instruments of a degree of understanding relative to the nature of that which they were doing. Their Honours continued:

These observations have been taken in these proceedings to provide the principle upon which the Court should judge the deceased’s capacity, from time to time, to transfer property and execute legal documentation of the character under challenge in the proceedings.

A finding that the deceased lacked capacity for self-management at the time he entered his nursing home (or at some earlier or later time) is not necessarily inconsistent with a finding that he had capacity at that time to perform a particular function. The concept of “(in)capacity for self-management”, as presently applied upon an exercise of protective jurisdiction in NSW, is functional, not limited to a case of mental incapacity: David by her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 426E and 436E-437C; Protective Commissioner v D (2004) 60 NSWLR 513 at [93]; PB v BB [2013] NSWSC 1223 at [8]-[9]; CJ v AKJ [2015] NSWSC 498 at [27].

The evidence before the Court as to the deceased’s mental capacity from time to time includes evidence of lay observations, evidence of his treating doctors and evidence of medical records. Records of his time in hospital and his nursing home include evidence of aberrant, aggressive and confused behaviour consistent with mental illness. As Dr Pak attests, even before the death of his wife Kiu Chai on 9 June 2012, the deceased was in poor health, suffering from dementia, unable to manage the medication of his wife and himself and given to wandering aimlessly. The plaintiff’s evidence is that at or about this time the deceased was often confused, forgetful, disinclined to shower and maintain a clean house, prone to lose things and to get lost, and experiencing difficulties in dealing with money in everyday circumstances. After his wife’s death he was disoriented, often confused, given to wandering, reclusive (often confining himself to his room) and living in decrepit conditions. Dorothy Quan noticed that at about this time he became aggressive, making silly allegations against people. These characteristics reinforced his natural lack of sophistication, his illiteracy and a stubborn streak. Evidence of Ms Guo confirms that, when she stayed at the Redfern Property, he was reclusive, poorly groomed and incontinent.

All that evidence has to be taken into account. However, in the forensic contest between the plaintiff and the first defendant the parties took the evidence of Dr Tuly Rosenfeld as crystallising questions for determination by the Court as to the deceased’s mental capacity to perform particular functions in their temporal setting.

In his report dated 18 June 2020, Dr Rosenfeld addressed as follows questions stated for his opinion (here extracted, with editorial adaptation, in a form reproduced in the plaintiff’s written submissions) about the capacity of the deceased to perform particular functions:

In forming the opinions here expressed, Dr Rosenfeld took into account the medical records of Dr Pak; admission, progress and discharge records of St Vincent’s Hospital; the deceased’s RUDAS test score of 20/30 on 27 July 2015 (indicative of dementia); and the results of CT scans of the deceased.

In cross-examination Dr Rosenfeld described “dementia” as a syndrome in which one or more cognitive functions is impaired and that impairment has affected the demented person’s ability to function in the world or to function socially.

He explained that a person might be able to do a range of high-level tasks notwithstanding dementia. To have dementia does not necessarily mean that a demented person is incompetent and living in a nursing home. Such a person can be living at home independently, still performing routine tasks despite significant dementia. All depends on what part of a brain’s function has been impaired by dementia.

Dr Rosenfeld’s opinion as to the existence, and duration, of the deceased’s dementia was not displaced by evidence that some medical records described the deceased’s dementia as “mild”. Nor was it displaced by an assumption that the conveyancer and solicitors who attended to the deceased in relation to particular transactions (and two marriage celebrants and witnesses to marriage ceremonies) did not notice the deceased’s dementia.

Dr Rosenfeld’s independent assessment of the deceased’s mental state drew particularly on the observations of Dr Pak, the observations of medical professionals charged with treating the deceased in hospital and in his nursing home, and the nature and complexity of the transactions ostensibly effected by the deceased between 2013 and 2017 or thereabouts.

He demonstrated, with particular reference to a brain scan of the deceased taken on 15 July 2015, a substantial wastage in the deceased’s brain tissue. The scans of the deceased’s brain demonstrated that there was a cause for significant atrophy in the brain, most likely due to blood vessel disease. Whether or not the deceased suffered a stroke at the time he was admitted to St Vincent’s Hospital was not, of itself relevant to the deceased’s impairment of executive function, long established.

As outlined here, and in relation to particular dates listed in the “Narrative Statement of Facts” set out hereunder, I accept as correct Dr Rosenfeld’s analysis of the evidence bearing upon the deceased’s mental capacity to perform transactions attributed to the deceased in and following 2013.

A finding that the deceased lacked mental capacity to perform those transactions may not, of itself, be sufficient to ground an order that the transactions be set aside. An element of knowledge by the first defendant of the deceased’s incapacity might also be necessary.

Upon an application of principles governing a finding of non est factum, mental incapacity preventing any understanding at all of a transaction will mean that there was in truth no entry into the transaction by the incapacitated person: PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at 675D-E. In such a case there can be no question of a positive belief on the part of the incapacitated person as to the nature of an impugned transaction radically different from its true nature, or of carelessness, an element ordinarily required as a foundation for a finding of non est factum: Petelin v Cullen (1975) 132 CLR 355 at 359-360.

A person who seeks to avoid a contract on the ground of his or her insanity, must plead and prove, not merely his or her incapacity, but also his or her opponent’s knowledge of that fact, and unless he or she proves those two things he or she cannot succeed: McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243 at 272; Hart v O’Connor [1985] AC 1000 at 1019B-1022C, 1024D-H and 1027F-H.

In Lampropoulos v Kolnik as Executor of Foley [2010] WASC 193 at [350] Simmonds J proceeded on the basis that the degree of knowledge of mental capacity required to challenge the validity of a transaction on the ground of a want of capacity is not limited to “actual knowledge”, it being sufficient if the party dealing with the incapacitated person “ought to have known of the mental incapacity”.

As in that case (at [388] et seq), the element of knowledge required might take its colour from equitable principles governing a catching bargain (unconscionable dealing) in which knowledge of a person’s special disadvantage will be satisfied if the party dealing with the disadvantaged person is aware of facts which would raise the possibility of special disadvantage (mental incapacity) in the mind of any reasonable person: see Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 467.

As the facts of the current proceedings lend themselves to characterisation as an unconscientious taking advantage of a person at a special disadvantage, that degree of knowledge can reasonably be taken here as a measure of the knowledge of incapacity sufficient to impugn a transaction.

This is consistent with an observation in McLaughlin (1904) 1 CLR 243 at 272 that the equitable doctrines governing the validity or invalidity of a contract made with an insane person may be only a particular instance of general doctrines relating to fraudulent contracts, an observation affirmed in Hart v O’Connor [1985] AC 1000 at 1027G-H in the following terms: “…the validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by the same standards as a contract by a person of sound mind, and is not voidable by the lunatic or his representatives by reason of ‘unfairness’ unless such unfairness amounts to equitable fraud which would have enabled the complaining party to avoid the contract even if he had been sane.”

Whether or not that statement of principle is too broad (as, I apprehend, it may be), in the context of the present proceedings the principles governing avoidance of a transaction on the ground of mental incapacity can be taken as operating in parallel with the principles governing unconscionable dealings articulated in Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621, amongst other authoritative judgments.

It is not necessary to explore an application of equitable principles relating to undue influence (closely related to principles governing relief against unconscionable dealing, as noted in Amadio (1983) 151 CLR 447 at 474), the principles governing non est factum (recognised in Ford (by his Tutor Watkinson) v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 as not necessarily incompatible with a finding of incapacity) or fiduciary obligations. Justice can be done in the current proceedings by an application of the principles governing incapacity and those governing relief against unconscionable dealings operating in parallel.

If I have erred in finding that the deceased lacked “mental capacity” to transact particular business, he was nevertheless (to the knowledge of the first defendant) at a special disadvantage vis-à-vis her: he was vulnerable to exploitation, at her instigation, on account of his lack of sophistication, education and literacy; his traumatised emotional state following the death of his wife, Kiu Chai; and his cognitive impairment. What attracted the first defendant to the deceased was his possession of wealth, his vulnerability to exploitation and the opportunity those two characteristics afforded her to take advantage of him to acquire the Redfern Property for virtually nothing.

Much of the evidence adduced in these proceedings was documentary. It included instruments obtained upon search of records kept by the Registrar General; certificates of births, deaths and marriages; immigration and travel records; medical records produced by the deceased’s general medical practitioner (Dr Pak), St Vincent’s Hospital and the deceased’s nursing home; banking records; and documents produced by The Star Casino. It included also documents of record relating to proceedings in the Federal Circuit Court of Australia and the Guardianship Division of NCAT.

The principal witnesses on behalf of the plaintiff were the plaintiff herself; her husband, ostensibly the son of the deceased; the deceased’s general medical practitioner, Dr Pak; and friends and neighbours, Dorothy Quan and Ling Zhen Liang. Dr Tuly Rosenfeld, a geriatrician, gave evidence about the deceased’s mental capacity as a forensic expert. All of the witnesses called by the plaintiff and cross examined by the first defendant presented as witnesses of truth. None of the plaintiff’s witnesses warrant an adverse finding as to their credit. Their evidence is generally consistent with contemporaneous documentation from independent sources.

The first defendant’s principal witnesses were herself and her former mother in law, Ms Guo, together with a Conveyancer (Michael Li) and two solicitors (Ying Zhang and Yu Chen) who acted on transactions affecting the deceased and herself.

As earlier noticed, the first defendant personally was not a credible or reliable witness of fact.

Nor was Ms Guo a reliable witness, making due allowance for her age, constraints of language (giving evidence through an interpreter) and cultural differences. In cross examination she claimed a poor memory and confused events. She embraced speculation that the deceased received $150,000 in cash from the first defendant at the time of execution of the Binding Financial Agreement, and that he may have dissipated it all over a period just over a week or so in partying with friends, a matter she claimed to have been of no concern to her despite the fact that at that time (according to her evidence and that of the first defendant) she intended to marry the deceased. Her evidence does nor ring true.

In opposing protective orders affecting the deceased on 26 August 2016, the first defendant told NCAT that the deceased had told her that he had given the $150,000 to Ms Guo, an unlikely story and one not corroborated by Ms Guo.

Of the professionals with whom the deceased came into contact, the evidence of Mr Li (Conveyancer) and Ms Zhang (Solicitor) was not altogether reliable. Both had a paucity of contemporaneous records. Their evidence, particularly that of Ms Zhang, appears to have involved a strong element of reconstruction. Mr Li, in particular, disclaimed any real memory of long ago events. Neither, particularly Ms Zhang, appears to have had much appreciation of the possibility of conflict between the interests of the deceased and the first defendant when implicitly acting for both parties or the first defendant alone. Both appear to have seen the first defendant and the deceased together and to have taken their instructions principally, if not only, from the first defendant, subject to Ms Zhang’s formality of referring the deceased to Mr Chen for “independent legal advice” on the Binding Financial Agreement.

Ms Zhang tended to deflect criticism of her, and to accept personal professional responsibility only begrudgingly, by attributing documents to a junior solicitor or a clerk working under her supervision. She appears to have seen nothing incongruous about her acceptance on 3 December 2015 that the deceased lacked capacity to execute an enduring guardianship appointment on 1 December 2015 and her procuring of a statutory declaration from the deceased on 25 November 2015; she refused to accept that, if the deceased lacked capacity to sign an enduring guardianship appointment on 1 December 2015, there was a reasonable possibility that he may also have lacked capacity to make a statutory declaration on 25 November 2015.

She also saw no incongruity in her lodgement with the Land Titles Office on 13 April 2016 of a statutory declaration purportedly made by the deceased on 2 April 2016 after the time when (no later than 3 December 2015) she was explicitly on notice that the deceased was suffering from dementia.

That she saw the events of 6 July 2015 (when both the Binding Financial Agreement and a Memorandum of Transfer in favour of the first defendant were executed) as a formality was confirmed by her failure to provide a copy of the Memorandum of Transfer to Mr Chen or to tell him that it had been executed by both the deceased and the first defendant, in her presence, as a preliminary to the deceased being referred to him for “independent legal advice”.

Although Mr Li was a reluctant, hesitant witness, with little memory of events that occurred in 2013, his evidence is significant, and consistent with objective facts, to the extent that he confirmed that in 2013 he saw the first defendant and the deceased twice; that he told them on the first occasion that a stamp duty exemption was available if they were married; that they went away from his office on that occasion with the benefit of that advice; and that they returned to his office on 9 September 2013 with a marriage certificate dated 3 September 2013.

In my assessment, Mr Chen was an honest witness. In retrospect, he would have acted more prudently had he, in light of his reservations about the Binding Financial Agreement, simply refused to witness the deceased’s signature or to provide a certificate of independent advice. This is what he should have done. The quality of any advice he was able to give the deceased was less than required if the deceased had been competent to comprehend it, which I find was not the case. Mr Chen’s intervention in the deceased’s affairs was inadequate to establish that the deceased was able to give, and did give, a fully informed consent to the Binding Financial Agreement. However, he gave evidence in a measured way, conscious of an obligation to assist the Court.

In recording that assessment, I place no great significance on evidence of a solicitor for the plaintiff (Mr Gary Patterson) that, when investigating the factual matrix of these proceedings, he had a telephone conversation with Mr Chen in which Mr Chen asserted that the payment of $150,000 for the deceased’s interest in the Redfern Property was “reasonable”. I do not exclude the possibility that, when cold called, Mr Chen might have inadvertently said something of the character of that attributed to him by Mr Patterson. However, I accept his evidence that that was a view that he never held.

For completeness, I mention that two deponents relied upon by the first defendant (Zhiwen Di and Hai Ping Wang) were not cross examined on short affidavits in which they deposed to their belief that the deceased did not exhibit any symptoms of dementia or reveal that he had, or may have had, a son or family members other than the first defendant, their friend. The first of those witnesses was a Cantonese speaker, who deposed that the deceased understood Mandarin. The second was a Mandarin speaker who deposed that the deceased could understand him completely. Their evidence is not directed to any of the transactions disputed in these proceedings. It is at odds with other, independent evidence. It does not carry much weight in light of that other evidence.

A challenge to the validity of particular transactions requires an examination of the factual context of each particular transaction under challenge. In the circumstances of the current proceedings, that requires a chronological account of the facts of the case in a perspective broader than the impugned transactions. The first defendant engaged the deceased in a series of transactions commencing with their void marriage and extending to the time when she secured registration as the sole proprietor of the Redfern Property.

As a matter of convenience, the “narrative statement” which follows recounts the deceased’s personal history so far as it bears upon his acquisition of the Redfern Property and details facts bearing upon the first defendant’s acquisition and sale of the property and her application of proceeds of sale.

The deceased was born in China on 8 February 1933.

The plaintiff believes that the deceased married Cai Li in China in about 1959; that Wing Tong Ip (born on 29 February 1960 in China) is a child of that marriage; that Cai Li died shortly after his birth; and that the child was left by the deceased in the care of his elder brother as he left China to go to Hong Kong to seek work.

The deceased immigrated to Australia, from Hong Kong, in 1975.

The deceased married Kiu Chai in Sydney on 25 November 1980. On the plaintiff’s case, this was the deceased’s second marriage. The existence of the first marriage (to Cai Li) and the paternity of Wing Tong Ip are disputed by the first defendant. The paternity of Wing Tong Ip is a question reserved for determination in the probate proceedings between Wing Tong Ip and Ms Guo.

On or about 2 March 1981 the deceased and Kiu Chai purchased the Redfern Property as joint tenants, occupying it as their matrimonial home until Kiu Chai’s death on 9 June 2012.

Wing Tong Ip migrated to Australia on 12 March 1988. His application for entry to Australia for settlement was sponsored by the deceased and Kiu Chai. The deceased paid the filing fee for that application. The application form describes Wing Tong Ip as the child of the deceased and Choy Lin Lee, one and same as Cai Li.

Upon his arrival in Australia Wing Tong Ip resided with the deceased and Kiu Chai at the Redfern Property.

On 10 January 1990, at the Redfern Property, Wing Tong Ip married the plaintiff. After their marriage, and until the birth of their first child in November 1990, they lived with the deceased and Kiu Chai at the Redfern Property.

Kiu Chai was first diagnosed with lung cancer in 2004. She died on 9 June 2012.

The deceased grieved the loss of his wife and (to the observation of Dr Pak) he was disoriented without her. Without assistance he was unable to perform basic domestic tasks and to manage his medication. On 30 July 2012 the deceased attended upon Dr Pak with the plaintiff, acknowledged by the deceased as his daughter in law and as a person assisting him.

Dr Pak regarded the deceased as having both physical and psychiatric disabilities. In a report dated 30 July 2012 provided to Centrelink in support of an application by the plaintiff for a carer’s allowance, he observed of the deceased that:

In the opinion of Dr Rosenfeld the deceased was suffering from brain disease and dementia that would have impacted on, and impaired, his ability properly to consider and to resolve tasks relating to dispositions of the Redfern Property, a marriage, a divorce and a property settlement, and incidental transactions, from at least 2013 to the date of his death on 23 August 2017.

In his report dated 18 June 2020 Dr Rosenfeld summarised his opinion in the following terms (with editorial adaptation) before turning his attention to particular transactions purportedly effected by the deceased:

In cross-examination Dr Rosenfeld conceded that between 2013 (when the deceased first met the first defendant) and 4 August 2015 (when he commenced residence at a Chatswood nursing home) or thereabouts, the deceased may have been able to perform basic routine tasks such as shopping, and attending the surgery of his general medical practitioner (Dr Pak). He conceded, also, that the deceased may have known that he was attending a marriage ceremony on 3 September 2013, that he was executing a transaction on 9 September 2013 that meant that if he died the Redfern Property belonged to the first defendant, and that on or about 6 July 2015 papers were signed to allow him and the first defendant to be divorced. However, significantly, Dr Rosenfeld opined that the deceased’s impairment of executive abilities was such that his thinking was “simplistic”, “childlike”, unable to understand what was going on with complex transactions. A brain scan taken in 2015 demonstrated that the deceased suffered from a severe shrinkage or atrophy of the brain which, because of the nature of his dementia, must have developed over time, going back at least to 2013.

The first defendant returned to Australia on 16 April 2013 after an absence of three months.

The deceased met the first defendant, she sometimes says, in or about January 2013, but more likely in or about April 2013, about 3-4 months after the death of her then husband, Tsan Si Cheng on 21 December 2012. She says she was introduced to the deceased by a mutual friend (a member of a Church from time to time attended by the deceased), Ms Yuyan Liu, from whom no evidence has been adduced.

The first defendant departed Australia on 25 April 2013, returning on 29 May 2013.

The first defendant says that she commenced living with the deceased, at the Redfern Property, about ten days after they first met. The likelihood is that she commenced living at the property under the colour of a tenant, that being an explanation for her presence the plaintiff says was given to her by both her and the deceased at the time, but since denied by the first defendant.

The first defendant says that the deceased was so much in love with her that he offered to give her the Redfern Property. If this is correct (which is doubtful), the deceased must have been irrationally besotted, totally infatuated, with her to offer up his principal asset, his family home, as a gift to a woman he had just met.

The first defendant departed Australia on 24 June 2013, returning on 13 July 2013.

In or about July 2013 the first defendant took the deceased to the office of the conveyancer, Mr Michael Li, to arrange for the Redfern Property to be transferred into the joint names of the deceased and herself. Mr Li told them that the title to the property could not be put into joint names without paying stamp duty unless they were married or could establish to the satisfaction of the Commissioner of Stamp Duties that they were in a bona fide de facto relationship. He also told them that they would need two independent witnesses to satisfy the Commissioner that they were, in fact, in a de facto relationship. Contrary to his evidence (which I accept), the first defendant says she does not recall seeing Mr Li before her marriage to the deceased or receiving this advice from him. An available inference is that a marriage was arranged because two independent witnesses of a de facto relationship were not available.

The first defendant departed Australia on 22 July 2013, returning on 25 July 2013.

The first defendant departed Australia on 7 August 2013, returning on 12 August 2013.

On 3 September 2013 (presumably after having given at least one month’s notice to an authorised marriage celebrant of an intention to marry) the deceased and the first defendant were purportedly married, by a celebrant (Bin Chen), in a private ceremony (in premises in Quay Street, Haymarket), without notice to the plaintiff and Wing Tong Ip, followed by a banquet attended by 6 or 7 friends at a restaurant in Chinatown. The marriage celebrant was not called to give evidence. Nor were the two witnesses to the marriage ceremony (Chi Ping Chang and Zhenglin Chen) or any of the friends who attended the banquet. The evidence is silent as to whether the marriage was consummated.

The deceased lacked capacity to give his real consent to this marriage. At the time of the purported marriage, he was suffering from a chronic, progressive form of dementia (vascular brain disease) with significant frontal lobe disease and impaired executive function. Even if fully explained to him, he would not have been able properly to understand, consider or resolve issues, implications and consequences of any decision to marry. Nor would he have been able to understand the implications and consequences of any commitments he may have made in the marriage ceremony. He may have known that he was participating in a marriage ceremony, but the implications and consequences of that ceremony were beyond his understanding, particularly because of the interrelationship between the marriage ceremony, transfer of an interest in the Redfern Property to the first defendant and the stamp duty rationale of the marriage.

The deceased’s lack of capacity to marry was known, or ought to have been known, to the first defendant. It was patent. She had ample opportunities to observe his lack of sophistication and his weak mind. Her contact with him was not limited (as that of other participants in the marriage ceremony may have been) to one or two brief encounters. His vulnerability to exploitation was what was attractive to her as she set about acquiring his property. The evidence of Dr Rosenfeld, supported by that of Dr Pak, is that the deceased’s lack of sophistication was “childlike”. The first defendant took advantage of his simplicity not only to secure his principal asset for herself but to do so in a calculated, tax-effective way.

On the same day as the marriage ceremony (on 3 September 2013) the first defendant took the deceased to the Land Titles Office with a view to having the title to the Redfern Property registered in the name of the deceased, by lodgement of a “Notice of Death” recording the death of Kiu Chai on 9 June 2012.

On 9 September 2013 the first defendant took the deceased to the office of Mr Li (with a Cantonese translator) with a view to effecting a transfer of the title to the Redfern Property from the name of the deceased (as the sole registered proprietor, the surviving joint tenant following the death of Kiu Chai) into the names of the deceased and the plaintiff as joint tenants, for the nominal consideration of $1.

Later the same day (9 September 2013) Mr Li lodged at the Land Titles Office a Memorandum of Transfer to effect that change in the title to the Redfern Property. It was registered as dealing number AI136200 on 4 November 2013.

The deceased lacked capacity to execute the Memorandum of Transfer freely, voluntarily and with knowledge of its nature, effect and consequences. Even if fully explained to him, he would not have been able to understand these things. At the time of execution of the Memorandum of Transfer he was suffering from a chronic progressive form of dementia (vascular brain disease) with significant frontal lobe disease and cognitive impairment. He would not have been able properly to recall the background, understand, consider and resolve the complexities of the implications and consequences of the financial arrangements involved in his execution of the Memorandum of Transfer.

The deceased’s execution of the Memorandum of Transfer in favour of the first defendant, in light of the circumstances in which it came about, is indicative of the fact that he did not comprehend the implications of what he was doing; that he was being taken advantage of by the first defendant; and that the conveyancer acted on her instructions without a critical review of those instructions or steps taken to ensure that the deceased had both the capacity and understanding necessary to divest himself of property.

The deceased’s lack of sophistication, his poor education and dementia were patent. The first defendant knew, or ought to have known, that he lacked capacity to make a gift to her of a substantial interest in his home. By the Transfer, the deceased signed away more than simply half his home; he granted the first defendant, a much younger woman, a joint tenancy, thereby potentially surrendering a right to dispose of an interest in the property by will. Their marriage was responsive to the conveyancer’s explanation of stamp duty law. It was not transparently a natural phenomenon or the product of a long relationship. From the deceased’s perspective, it was a manifestly improvident transaction. At a time when he could reasonably be expected to need an asset to fund ongoing life in retirement, he divested himself of a substantial amount of property, for no consideration and without any guarantee that his new found wife would take care of him or his interests. The speed, persistence and determination of the first defendant in acquiring title to the Redfern Property, through a process of marriage and divorce without any real acceptance of an obligation to support him, supports an inference that she knew of his incapacity to deal with complex decisions and worked methodically to take advantage of it.

In cross examination the first defendant disclaimed any understanding of the concept of a joint tenant at the time of the transfer, but she asserted (without elaboration) that the deceased knew the concept.

The very same day that the Memorandum of Transfer was executed (9 September 2013) the first defendant flew to Taiwan (she says, to attend to business arising from the death of her husband, Tsan Si Cheng). She returned to Australia on 21 September 2013.

The first defendant departed Australia on 25 September 2013, returning on 24 October 2013.

The first defendant departed Australia on 13 November 2013, returning on 25 December 2013.

In or about November 2013 the plaintiff discovered a Council Rate Notice which recorded the first defendant as a co-owner of the Redfern Property with the deceased. When she sought an explanation of the first defendant’s description as a co-owner, the deceased was distressed and unable to explain what had happened.

In November 2013 the plaintiff changed the locks on the Redfern Property and Wing Tong Ip commenced sleeping there overnight to care for the deceased.

On 10 December 2013 the plaintiff took the deceased and (acting as a translator) Mrs Dorothy Quan to the Land Titles Office to investigate how the first defendant came to be registered on the title to the Redfern Property as a co-proprietor with the deceased. The deceased said to Ms Quan words to the effect of “I never signed anything. It is my property. Someone has stolen my property. We need to get the police to do something.” The plaintiff told an officer of the Registrar General that the deceased had been tricked into marrying the first defendant and tricked into transferring a half share of the Redfern Property to her.

On 11 December 2013 the Registrar General recorded on the title to the Redfern Property a Departmental dealing number AI228175, which recorded the following entry: “Refer all dealings to Leg11/Allegation of Impropriety re AI136200” (the Memorandum by Transfer by which the Redfern Property was purportedly transferred by the deceased into the names of the first defendant and himself). A supplementary Departmental dealing (AI232508) was recorded on the title on 12 December 2013.

On 11 December 2013 the deceased’s GP, Dr Pak, provided a medical report (addressed “To whom it may concern”) in which he made observations about the deceased’s medical condition in the following terms:

At the time Dr Pak prepared that report he observed that the deceased was quite disoriented, with a vacant expression on his face and barely responsive to questioning.

On 25 December 2013 the first defendant returned to Australia on a flight shared by Ms Guo. They together went to the Redfern Property. That was probably the first time that the deceased had met Ms Guo. She admitted as much in cross examination though her affidavit evidence was that she had met him earlier, and was drawn to him, in a social context in Chinatown. In any event, an encounter between the plaintiff and her family (on the one hand) and the first defendant and Ms Guo (on the other hand) on 25 December 2013, after the deceased had returned from a Church attendance, was tense, if not confrontational.

After 25 December 2013, the deceased’s contact with Wing Tong Ip, the plaintiff and their children was diminished, if not restricted by the first defendant. The plaintiff ceased day-to-day care for the deceased and surrendered her carer’s allowance. The deceased appears to have withdrawn into himself. He visited the home of the plaintiff and Wing Tong Ip, and spent time with them, only when the first defendant was overseas. Given the hostility between the plaintiff and the first defendant, and the forceful personality of the first defendant, the possibility that the deceased avoided confrontation with the first defendant about the plaintiff, Wing Tong Ip and their children, and that he sometimes spoke harshly about them in her presence, is not remarkable. In their personal relationship, and in the business they transacted, she dominated him for her own purposes.

The first defendant departed Australia on 8 January 2014, returning on 3 May 2014.

Ms Guo departed Australia on 22 March 2014. She did not return until 3 June 2015.

On 15 May 2014 (according to clause 17 of the Binding Financial Agreement dated 6 July 2015) the deceased and the first defendant separated. She says that this occurred at the request of the defendant. In an affidavit she affirmed, she swore that “due to unresolvable differences that started to appear in late 2014, [she and the deceased] separated by staying in different rooms but still lived under the one roof”. In cross examination she said that the parties agreed to divorce “around about the end of 2014”. She says that their separation was at the request of the deceased. That is doubtful, but it is possible that he did complain from time to time about her absences and lack of companionship. He was a lost, restless soul.

The first defendant departed Australia on 26 May 2014, returning on 10 September 2014.

The first defendant departed Australia on 29 September 2014, returning on 2 October 2014.

The first defendant departed Australia on 3 November 2014, returning on 6 November 2014.

During 2014 and early 2015 the deceased’s health continued to decline. On 10 December 2014 (apparently after a slip and fall at home) he was taken by ambulance to St Vincent’s Hospital, where his cognitive impairment was noted. Staff gave consideration to having him “scheduled” (as mentally ill) as he showed poor insight into his medical condition. Instead, he discharged himself against medical advice. Upon his discharge, a Consultant in Emergency Medicine at the Hospital wrote a report to the deceased’s GP, Dr Pak, which included the following observations (edited as indicated):

The Hospital Notes underlying that report touched upon the deceased’s then living arrangements. The Emergency Department Registration Form recorded his marital status as “W” which I take to be an abbreviation for the word “widower”. The Notes described him as a “poor historian”. He was also described as having “mild dementia”. There appears to have been some uncertainty about whether he lived alone, had family or was delirious. Language and a lack of sophistication may have been a barrier to communication. An entry recorded the following: “very resistant to admission to hospital due to paranoia re: apartment, people going to steal his belongings, he states he needs to maintain his house.” Another entry read: “states his friend is a gambler + when he [sic] asked for money and Pt didn’t give it to him he left”. A summary of a telephone attendance by the Hospital on Dr Pak records the following:

As requested by St Vincent’s Hospital at the time of his discharge on 10 December 2014, the deceased presented himself to Dr Pak for a consultation on 11 December 2014. Dr Pak observed him to be dishevelled and unshaven, unsteady on his feet and slow moving. When asked by Dr Pak why he did not stay in hospital, he said: “I don’t like hospitals. I have to go home to look after my house. I will be ok. My family will look after me.” Believing that the plaintiff was looking after him, Dr Pak took no further steps at that stage.

The first defendant departed Australia on 28 January 2015, returning on 16 February 2015.

The deceased presented himself at Dr Pak’s surgery on 20 February 2015 and 1 April 2015, on each occasion having suffered injuries as a result of a fall. On both occasions, Dr Pak observed him to have been disoriented, confused, unshaven and dishevelled, unsteady on his feet and slow moving. Had he been aware that the plaintiff was no longer caring for him, Dr Pak would have made a referral to an ACAT team for assessment.

Ms Guo returned to Australia on 3 June 2015, departing on 1 September 2015.

The deceased’s last attendance on Dr Pak (on 22 June 2015) appears to have been a routine consultation about itchy dry skin that was keeping the deceased awake at night. The first defendant flew out of Australia that day. Neither Dr Pak’s notes nor his affidavit in these proceedings record observations about the deceased’s general condition, or his mental condition, on this occasion.

The first defendant departed Australia on 22 June 2015, returning on 24 June 2015.

In or about June 2015 the first defendant took the deceased to the offices of Ren Zhou Lawyers where she (and, nominally, the deceased) sought advice from their employed solicitor, Ms Ying Zhang, about a divorce and a property settlement. Ms Zhang took steps to achieve both a divorce and a property settlement.

The deceased’s lack of sophistication, poor education and weak mind were patent. Ms Zhang could not have failed to notice them. In taking steps to obtain a divorce order and a property settlement, she appears to have taken no steps of any consequence to satisfy herself that the deceased had both capacity and understanding to effect the business at hand. She appears to have acted principally in the interests of the first defendant and on her instructions, treating a need for the deceased to obtain independent legal advice as a bare formality.

On 6 July 2015 Ms Zhang and the first defendant assisted the deceased to visit the offices of Juris Cor Legal (next door to the offices of Ren Zhou Lawyers) for the purpose, ostensibly, of enabling him to obtain independent legal advice (from Mr Yu Chen) about the effect of what became the Binding Financial Agreement dated 6 July 2015 and the advantages and disadvantages to him of making that Agreement.

Ms Zhang witnessed the first defendant’s execution of the Agreement and certified that she had given the first defendant independent legal advice about the effect of the Agreement and the advantages and disadvantages to the first defendant of her making the Agreement. Mr Chen witnessed the deceased’s execution of the Agreement and provided a similar certificate vis-à-vis the deceased.

The first defendant says that she accompanied the deceased and Ms Guo to the office of Mr Chen (because he could not otherwise have found his way, next door) and she waited outside while the deceased and Ms Guo met with Mr Chen. She deposes that she nevertheless overheard Mr Chen telling the deceased that the Binding Financial Agreement was disadvantageous and the deceased insisting that he was content with it.

Mr Chen’s memory is that the deceased was accompanied by one woman, assumed by him to be a support person for the deceased because the deceased was “a little bit fragile”. The likelihood is that, contrary to her evidence, the first defendant accompanied the deceased throughout his conference with Mr Chen. Mr Chen’s file note records the first defendant’s mobile number as the deceased’s contact number. The first defendant supplied her number to Mr Chen.

In aid of execution of the Binding Financial Agreement on 6 July 2015, Yu Chen procured the deceased’s execution of a document in the following terms:

Mr Chen obtained this signed “acknowledgement” to protect his firm in circumstances in which (I accept) he advised the deceased not to sign the Binding Financial Agreement because, even without evidence of the value of the Redfern Property, it appeared to be detrimental to the deceased and (for example, in its reference to a payment of $150,000 in cash) unusual. In a manner consistent with a want of mental capacity, the deceased was insistent that he sign the Binding Financial Agreement immediately and without further enquiry about the value of the Redfern Property. By her actual, or near, presence, the first defendant was an impediment to further engagement by Mr Chen with the deceased.

Although I accept that Mr Chen endeavoured to give independent legal advice to the deceased, he was not well placed to do so. He did not himself speak Cantonese. Improvising, he relied upon a law student (working in his office to gain practical experience as a precondition to admission as a lawyer) as an interpreter. There were many things bearing upon the deceased’s rights and obligations he was not told. He appears not to have been told that the deceased had already executed a Memorandum of Transfer (with the first defendant), witnessed by Ms Zhang; she, certainly, did not provide him with a copy of the executed Transfer. He was not told that part of the arrangement between the deceased and the first defendant (according to her) was that the deceased could live in the Redfern Property for the rest of his life. He was not told that part of the arrangement (according to her) was that the first defendant would care for the deceased notwithstanding their divorce. He was not told that the deceased had owned the Redfern Property, as his family home, for several decades before his purported marriage to the first defendant. He was not told that the deceased owned 100% of the Redfern Property before the purported marriage. He was not told that during the period of a short marriage, the first defendant had been away overseas for over 200 days. He was not provided with proof that the deceased had in fact received $150,000 in cash. He was not told that the deceased had a son, a daughter-in-law and grandchildren or persons who may have answered that description. He was not told of assets of the first defendant (such as jewellery, antiques and luxury handbags) she evidently owned.

At the time Mr Chen interviewed the deceased the Binding Financial Agreement had already been signed that day by the first defendant and Ms Zhang, the solicitor who prepared it. Mr Chen was not told of any urgency attaching to execution of the document that day.

A manifest deficiency in the binding financial agreement is the absence of any provision providing the deceased with security of tenure in the Redfern Property. If the deceased had a belief that the first defendant had agreed to let him reside in the property for the rest of his life, it is indicative of a failure on his part to understand the nature of the transaction purportedly effected by the binding financial agreement and subsequent transfer of land, and his extreme vulnerability at the hands of the first defendant, a person with no firm obligation to provide him with continuing support but with a gambling habit which might put her ownership of the property at risk as she incurred, and endeavoured to pay, ongoing gambling debts.

On 6 July 2015 the deceased was suffering from a chronic, progressive form of vascular dementia. Even if the documents signed by him on that date (the Binding Financial Agreement, the Authority addressed to Juris Cor Legal and an Application for Divorce) were fully explained to him, he would not have understood their nature, effect or consequences. His lack of capacity was patent. He was at that time suffering from advanced vascular dementia, an illness that would have extinguished his ability to understand and consider his future needs, care and estate. He would have been unable to understand, consider and resolve issues encountered in the making of decisions about the nature, implications and consequences of a divorce and family law settlement. He would not have been able properly to recall the background, understand, consider and resolve the complexities of the implications and consequences of the financial arrangements involved in signing the documents placed before him for execution or a divestiture of his interest in the Redfern Property.

The deceased could not have “acknowledged” a lack of family without, at least, discussing his relationship with Wing Tong Ip, the plaintiff and their children, people he had lived with as family. He could not have confirmed that he had received $150,000 from the first defendant without objective enquiry; on the evidence adduced in these proceedings, I am not satisfied that a sum of $150,000, or any such sum, was ever paid to him by the first defendant. He could not realistically have asserted (or be taken seriously in an assertion) that he lacked an expectation of a requirement for future maintenance from the first defendant. He was, effectively, giving away his principal asset in circumstances in which he was plainly in need of support. Despite his misgivings about the Binding Financial Agreement, Mr Chen witnessed the deceased’s execution of the document and provided a certificate of independent advice. His involvement in the transaction could not, and did not, evidence that the deceased executed the document as a free and capable party.

The first defendant knew, or ought to have known, that the deceased lacked capacity on 6 July 2015 to understand the scheme of documents (or any of them) executed on that day intended by her to create the appearance of a gift to her by him of the whole of his principal asset, under colour of law, without any ongoing commitment on her part. From the deceased’s perspective, the Binding Financial Agreement was transparently an improvident transaction. His entry into the Agreement was without any advantage to him. It was wholly disadvantageous to him.

On 6 July 2015 Ms Zhang witnessed the signatures of both the deceased and the first defendant on an affidavit purportedly verifying an “Application for Divorce” subsequently (on 8 July 2015) filed by her in the Federal Circuit Court of Australia. A copy of the Binding Financial Agreement was attached to the Application. The deceased’s residential address was identified as the Redfern Property; no residential address was recorded for the first defendant. The “facts” deposed to as true included the following:

In her oral evidence the first defendant conceded that she had lived at the Redfern Property “on and off” after the date of separation.

Because the Application for Divorce was, in fact, filed within two years of the parties’ marriage, the first defendant obtained a “Counselling Certificate for Applicants Married Less than two Years” dated 14 July 2015. That document recorded as follows the counsellor’s description of the “details of counselling”:

The Certificate contained a statement that “the husband was invited to attend the counselling to consider reconciliation but did not.”

The deceased lacked the mental capacity to enter the Binding Financial Agreement dated 6 July 2015. It was, in any event, a manifestly improvident transaction for the deceased to have entered. In essence, it provided for the Redfern Property (then registered in the names of the deceased and the first defendant as joint tenants) to be transferred into the sole ownership of the first defendant, ostensibly in return for an unproven payment by the first defendant to the deceased of $150,000 in cash.

If the documents be taken at face value (which cannot, on the whole of the evidence, be done), the deceased disposed of the whole of his principal asset, his home, in two stages, for payments totalling $150,001, a fraction of the value of the asset. In fact, there is no evidence, beyond bare assertions by the first defendant, supportive of the proposition that the first defendant had (on or before 6 July 2015) paid the deceased $150,000 (or the nominal $1.00), “in cash” or otherwise.

The first defendant’s evidence that she gave the deceased $150,000 is improbable and uncorroborated. She certainly did not give him any such amount on 6 July 2015. He would not have been able to manage any amount of that magnitude if she had given it to him; he was unable to manage small amounts of money in his day to day living. Her evidence as to what money she gave him, and when, was not consistent. Ultimately, she appears to say, she gave him something in the order of $150,000 (or, on one version, an amount in excess of $200,000) by cash payments casually made from time to time, unconnected with the binding financial agreement, before its execution. The likelihood that she did anything of the sort is remote, particularly given the demands on her for finance to fund her gambling habit.

The deceased suffered a debilitating fall on 12 July 2015 as a result of which he was conveyed to St Vincent’s Hospital on 14 July 2015. He remained there until, on 4 August 2015, he was transferred to a nursing home (the Forest View Quality Care Centre) in Chatswood, where he remained a resident until his death on 23 August 2017.

During the deceased’s hospitalisation at St Vincent’s between 14 July 2015 and 4 August 2015:

Throughout the deceased’s residence at the Chatswood nursing home between 4 August 2015 and 23 August 2017 he was incapable of managing his affairs in the sense discussed in cases such as CJ v AKJ [2015] NSWSC 498 at [22]-[42] dealing with an exercise of protective jurisdiction. He was physically and cognitively impaired. An unsophisticated, simple man, he struggled with everyday tasks of ordinary living, a struggle magnified by his lack of verbal skills and English. He was dependent on others in dealing with the ordinary affairs of man. He was incapable of understanding any complex transaction, even if explained to him. He was vulnerable to exploitation.

Having encouraged the staff of St Vincent’s Hospital, and the ACAT assessment team, to place the deceased in a nursing home on a permanent basis, the first defendant thereafter sought to control his affairs in her own interests or those of Ms Guo, with whom she was closely aligned.

During the deceased’s occupancy of the nursing home, the first defendant engineered their divorce and, without notice to the plaintiff or her family, his marriage to Ms Guo. With the assistance of solicitors from Ren Zhou Lawyers, she procured his execution of a Power of Attorney and a Guardianship appointment in her favour, an application for a replacement certificate of title for the Redfern Property, a Memorandum of Transfer (registered as dealing number AK275160) for the Redfern Property to be transferred into her name alone, and statutory declarations. Purportedly as his attorney, she directed the nursing home not to permit him to leave those premises without her permission and, by telling the nursing home that he had no family, she led the nursing home to refuse the plaintiff permission to visit him.

By a letter dated 30 March 2016 addressed to the Guardianship Tribunal (by that time replaced by the Guardianship Division of NCAT), the deceased’s nursing home confirmed that the deceased had been a permanent resident at the nursing home since 1 September 2015 and made the following observation:

While the deceased was in the nursing home, the first defendant opposed an application made by the nursing home to the Guardianship Division of NCAT for the appointment of a financial manager and a guardian for the deceased. On 26 May 2016 the Tribunal appointed the NSW Trustee as the deceased’s financial manager and the plaintiff as his guardian, appointments confirmed by further orders made by the Tribunal on 26 August 2016. The first defendant did not deal frankly with the Tribunal. Her participation in proceedings before the Tribunal masked her dealings with the Redfern Property.

The plaintiff first learnt that the deceased was in a nursing home when, shortly after 28 August 2015, she received a letter bearing that date addressed to the deceased, care of her (according to the letter, as the deceased’s nominee), by the Australian Department of Human Services. Without identifying any institution in which the deceased may have been a resident, the letter explained that, upon entry into residential aged care, a resident might be liable to pay various fees.

The letter was evidently sent to the plaintiff without notice to the first defendant who says that the deceased’s nursing home had told her that his fees would be paid from his pension.

Through an inquiry of Centrelink, the plaintiff discovered the whereabouts of the deceased’s nursing home.

Within a day or so of locating the deceased’s nursing home, the plaintiff visited the nursing home and was permitted to see the deceased. He told her that he wanted to go home with her “right now”, to which she responded that she would need to do paperwork to achieve that.

When the plaintiff returned to the nursing home the following day she was not permitted to visit the deceased, she understood, because the first defendant had informed the nursing home that the deceased had no family in Australia.

Ms Guo departed Australia on 1 September 2015, returning on 2 March 2016.

On 22 September 2015 a Deputy Registrar of the Federal Circuit Court of Australia made a “Divorce Order” expressed in the following terms:

On 23 October 2015 the Divorce Order took effect, thereby purportedly terminating the marriage (a void marriage, as has been held) between the deceased and the first defendant.

On 25 November 2015 the first defendant, in the company of the solicitor Ms Ying Zhang of Ren Zhou Lawyers, attended upon the deceased at his nursing home and there procured his execution of several documents.

The deceased’s lack of sophistication, his poor education, his dementia and his inability to manage his own affairs were well-known to both the first defendant and Ms Zhang when they attended upon him in his nursing home. His admission to the nursing home was predicated upon his inability for self-management and his vulnerability.

The first of the documents to be signed was styled “Enduring Power of Attorney” and dated 25 November 2015. Ms Zhang witnessed the deceased’s signature and signed a certificate (under section 19 of the Powers of Attorney Act 2003 NSW) to the effect, inter alia, that:

The deceased lacked capacity to execute a valid Power of Attorney. By the time of its execution, he lacked the capacity to understand the nature, effect and implications of a power of attorney. Even if the nature, effect and consequences of the instrument were fully explained to him, he would not have understood. He was by this time suffering from a severe dementia, with significant frontal lobe damage and cognitive impairment. Ms Zhang’s “explanation” of the effect of the instrument could not have engaged his mind with any degree of understanding. Ms Zhang’s certificate to the contrary lacks credibility.

In terms, the Power of Attorney authorised the first defendant to exercise the authority (conferred by Part 2 of the Powers of Attorney Act 2003) to do anything on behalf of the deceased he could lawfully authorise an attorney to do, subject to the following “Conditions and Limitations” set forth in the handwriting of Ms Zhang:

It is not altogether clear on the face of the Power of Attorney whether or not the provision of the document conferring power on the first defendant was, or was not, struck out. Either way, the nature and scope of any authority conferred on the first defendant appears to have been defined by these “Conditions and Limitations”.

On 25 November 2015 the first defendant, in the company of Ms Zhang, also procured from the deceased his execution (in common with the first defendant) of a joint statutory declaration in which they purportedly declared that:

The terms of this statutory declaration were false, and must have been known by the first defendant at least to be false. On no view of the facts, could the deceased have knowingly declared that the Redfern Property had been purchased by the first defendant and himself in 1981 or that they had together held the certificate of title relating to the property since that time. The property was purchased by the deceased and his then wife Kiu Chai in 1981. The first defendant did not arrive on the scene until 2013.

The falsity of the statutory declaration is consistent with a lack of capacity on the part of the deceased to execute the document. By the time of its execution, his dementia had progressed to such an extent that it was beyond his capacity to understand the nature, effect, terms and consequences of the statutory declaration, even if fully explained to him.

On 26 November 2015 Ms Zhang witnessed a statutory declaration made by Yew Kong Loke (a friend of the first defendant who resided in May Street, Surrey Hills) in the form of a “Personal Reference” in support of an application for a replacement certificate of title for the Redfern Property. In that document the declarant declared that:

The terms of this statutory declaration were false in that Yew Kong Loke did not personally know the deceased and, as the deceased’s was then a permanent resident in a nursing home, he could not be said in any real sense to have resided with the first defendant at the Redfern Property.

On 27 November 2015 the deceased’s nursing home recorded a Note in the following terms:

An entry in the nursing home Notes for 29 November 2015 reads as follows:

A nursing home Note for 30 November 2015 reads as follows:

On 1 December 2015 the first defendant attended upon the deceased in his nursing home (in the company of Sally Gaslie Shiu, a solicitor working under the supervision of Ms Zhang) and procured his execution of a document bearing that date entitled “Appointment of Enduring Guardian”, the validity of which is contested. The document purported to be an appointment by the deceased of the first defendant as his enduring guardian with the following functions, should the deceased “become incapable of making [his] own personal decisions”:

The deceased lacked capacity on 1 December 2015 to appoint an enduring guardian. He was, at that time, suffering from advanced dementia. Lifestyle, health care and accommodation decisions require that an individual have considerable insight into the nature of problems, needs, the implications of decisions regarding medicines, procedures, accommodation options and a range of complex issues. The deceased would not have understood the implications of appointing another person who would be able to make such decisions on his behalf. Even if the nature, effect, terms and consequences of the “Appointment of Enduring Guardian” were fully explained to him, he would not have understood. The document was transparently beyond his ability to comprehend.

On 3 December 2015 the first defendant executed a statutory declaration (witnessed by Ms Zhang) in the following terms:

The first defendant departed Australia on 5 January 2016, returning on 16 February 2016.

On 11 January 2016 the Manager of the deceased’s nursing home contacted Cliff Luke (nominated by the first defendant as an alternate contact for herself as a representative of the deceased, but he disclaimed the role). He told the Manager that he was not aware of any arrangement that he serve as an alternate and that he barely knew the deceased.

On 26 February 2016 the first defendant executed a statutory declaration (witnessed by Ms Zhang) which included the following paragraphs:

The terms of this statutory declaration were false in that the deceased was not the first defendant’s husband at the time the declaration was made, and any implicit suggestion that the two of them were living together at the Redfern Property was less than frank in circumstances in which the deceased was a permanent nursing home resident.

Ms Guo returned to Australia on 2 March 2016, departing on 18 May 2016.

On 19 March 2016 the first defendant (in the company of Ms Guo and a marriage celebrant) attended upon the deceased at his nursing home and procured his execution of a “Notice of Intended Marriage” in anticipation of a marriage between the deceased and Ms Guo to be solemnised on 26 April 2016.

An entry for 1 April 2016 in the Notes of the deceased’s nursing home (by Dr Yu Zhang) records the following:

Another entry in the nursing home’s Notes for 1 April 2016 records that the first defendant was informed “Management is lodging a Guardianship for Mr Ip.”

On or about 2 April 2016 the first defendant took the deceased to Chatswood, where she procured his execution of a statutory declaration in terms that included the following:

The terms of this statutory declaration were false, most obviously in their statement that the first defendant and the deceased were married at the time the declaration was purportedly made. The terms of the document are, moreover, consistent with the deceased having no capacity or understanding required to make such a declaration. The document is an illustration of the first defendant’s control over the deceased and his inability to grasp what was happening.

The deceased lacked capacity to execute a statutory declaration or to consent to the first defendant’s application for a replacement Certificate of Title. His advanced dementia precluded him from understanding the statutory declaration, the first defendant’s application for a replacement Certificate of Title and any idea that he consent to the application. Even if fully explained to him, he would not have understood these things.

In April 2016 applications were filed in the Guardianship Division of NCAT relating to the deceased:

Those applications were dealt with on 26 May 2016 and 26 August 2016. On the first occasion, the Tribunal appointed the NSW Trustee as the deceased’s financial manager (by an order to be reviewed within three months) and appointed the plaintiff as his guardian for three months. The necessity for appointments of limited duration arose from a communication received by the Tribunal on 18 May 2016, from the first defendant, requesting an adjournment of the hearing scheduled for 26 May 2016. On the second occasion (26 August 2016) the Tribunal confirmed the NSW Trustee’s appointment as financial manager and appointed the plaintiff as guardian for a period of three years.

On 7 April 2016 Dr Pak provided to the plaintiff a “Patient Health Summary” which recorded the following:

On 13 April 2016 the first defendant caused to be lodged at the Land Titles Office an “Application of Replacement of Certificate of Title” (dealing number AK252409) in respect of the Redfern Property. The Application was made by the first defendant and certified as correct, and lodged, by Ms Zhang on her behalf. The Application itself was dated 2 February 2016. It annexed the following statutory declarations:

The first defendant departed Australia on 13 April 2016, returning on 19 April 2016.

On 22 April 2016 the first defendant, by Ren Zhou Lawyers, lodged with the Land Titles Office a “Change of Name” Application (dealing number AK376161) to change her name on the title to the Redfern Property from “Tsui-Peng Chiang” to “Lisa Tsui Peng Chiang”. The dealing included a statutory declaration made by the first defendant on 19 April 2016 (before Ren Zhou) in which she declared that “when I received by [sic] Australian citizenship, I adopted an anglo saxon name to assimilate into the culture.” [She became an Australian citizen on 8 April 1991.]

On 22 April 2016 the Registrar General:

The deceased lacked capacity to execute the Memorandum of Transfer dated 22 April 2016. By that date, his severe dementia prevented him from understanding the nature, effect, terms or consequences of the instrument. Even if fully explained to him, he would not have understood these things. He was transparently unable to comprehend them.

No notice was given to the plaintiff, her husband or NCAT of the transfer of the Redfern Property into the first defendant’s sole name.

On 26 April 2016 the deceased purportedly married Ms Guo before a marriage celebrant (Xiauhong Li), with two witnesses (Zhiwen Di and Youling Wang), at the deceased’s Chatswood nursing home. Documents in support of the marriage comprise:

In each of these documents (and in the Notice of Intended Marriage said by the celebrant to have been received by him on 19 March 2016) the deceased and Ms Guo are both said to have resided at the Redfern Property.

There is no entry in the Notes of the deceased’s nursing home that refers to the deceased’s impending marriage or the marriage itself. Entries for 24, 25 and 27 April 2016 record that the deceased was on each day physically aggressive towards staff. There was no entry for 26 April 2016.

Ms Guo confirmed in her evidence that nobody at the nursing home was told of the marriage. Her explanation was that had she told anybody she would have been required, according to Chinese tradition, to give them a gift, which she was unable or unwilling to do.

No evidence was adduced in these proceedings from either of the two witnesses to the marriage. The marriage celebrant (Xiaochong Li) gave evidence to the effect that: (a) he was told that the deceased was in the nursing home because he was recovering from a fall; (b) he did not see anything that made him suspect that the deceased had a mental incapacity; (c) during the ceremony the deceased continually complained that he was very unhappy in the nursing home and that he wanted to get out and live normally; (d) he spoke to the deceased and Ms Guo in Mandarin, all parties telling him that the deceased understood Mandarin; and (e) the deceased “repeated his vows partly in Cantonese”.

The evidence is silent as to whether the marriage was consummated.

It was the first defendant who made arrangements with the marriage celebrant for the marriage, both the preliminary meeting with the celebrant to give notice of intention to marry and the marriage ceremony itself. The ceremony, such as it was, occurred only because of the arrangements she made, including the provision of transport for Ms Guo. That said, she says that she did not attend the marriage ceremony because she was “very sad that the deceased was marrying another woman.” More likely, she sought to distance herself from the event as it happened.

The plaintiff knew nothing of the marriage until after the commencement of these proceedings.

A determination of the validity of the marriage is not required in these proceedings. The question of validity remains to be litigated, as between Wing Tong Ip and Ms Guo, in the probate proceedings presently listed for hearing on 20 September 2021. Nothing in this judgment is intended to preclude that contest taking place.

The case presented on behalf of the plaintiff in these proceedings, against the first defendant, includes a contention that the marriage was invalid because of a want of mental capacity on the part of the deceased. The first defendant contends that no finding as to the validity of the marriage is necessary in these proceedings. For the purpose only of resolving any contest as between the plaintiff and the first defendant in these proceedings, I find that the contention of the plaintiff is made out on the evidence presently before the Court. On that evidence, the deceased’s advanced brain disease and dementia would have resulted in a patent inability on the deceased’s part properly to understand and consider the nature and implications of a marriage ceremony. As it happened, any contact between the deceased and Ms Guo, before or after the purported marriage, was fleeting, a factor inconsistent in ordinary experience with any real appreciation of the nature, effect and consequences of a marriage ceremony by a man suffering advanced dementia.

Australian Government records recording Ms Guo’s movements in and out of Australia record the following:

Ms Guo says that she left Australia after the marriage to have an operation in China, and that her poor health thereafter prevented her return to Australia. There is no evidence that she took any steps to have the deceased travel to China to live with her, as (she says) was the intention of the deceased and herself when they agreed to marry.

It cannot be assumed that Ms Guo stayed at the Redfern Property at any particular time during her presence in Australia. She had children of her own resident in Australia, one of whom was Haisheng Xu, the first defendant’s former husband.

By a “Standard Form Residential Tenancy Agreement” made (and dated) 1 May 2016, the first defendant leased the Redfern Property to her former husband Haisheng Xu, for a 7 month term commencing on 1 May 2016 and ending on 30 November 2016, for rent of $650 per week payable to the first defendant by cash.

The first defendant contends that Haisheng Xu did not remain at the Redfern Property for the full term but left after a few days because he could not bear the smell of cats resident inside the premises.

On 6 May 2016 the first defendant drove the deceased and Ms Guo to the plaintiff’s residence at Maroubra, purportedly seeking to recover the deceased’s passport. The plaintiff was not at home. Her husband answered the door, at which time the first defendant remonstrated with him loudly. The plaintiff’s son, James, responded to the commotion by calling the police, who supervised the plaintiff’s departure from the premises.

The first defendant departed Australia on 18 May 2016, returning on 2 June 2016.

On 18 May 2016, as earlier noticed, Ms Guo departed Australia and did not return at any time before the deceased’s death.

On 26 May 2016, as earlier noticed, the Guardianship Division of NCAT appointed the NSW Trustee as financial manager of the deceased and the plaintiff as his guardian.

On or about 20 June 2016 the first defendant applied to the Commonwealth Bank for a loan of $150,000 on the security of the Redfern Property, then registered in her sole name. On 22 June 2016 she signed a Memorandum of Mortgage (registered on 18 July 2016 as dealing number AK606269) in favour of the Bank to secure the loan. She paid the borrowed funds to The Star Casino.

On 6 July 2016, at the request of the NSW Trustee (then investigating the affairs of the deceased as his financial manager), the first defendant attended an office of the NSW Trustee with the deceased. A file note of that attendance records that the deceased advised the NSW Trustee that he did not have a son and never had children; that he was happy with the transfer of the Redfern Property to the first defendant; and that he had given $150,000 (which the first defendant had paid to him) to his “girlfriend” Ms Guo, who only came to Sydney to spend time with him.

On the face of the file note, the first defendant was an active participant in the NSW Trustee’s interview. She is recorded as speaking disparagingly of the plaintiff, advising the NSW Trustee that she had filed for divorce because the deceased was in a relationship with Ms Go, but that she still had feelings for the deceased, she did not object to him returning to live at the Redfern Property and she had borrowed $150,000 from a relative in Taiwan to pay the deceased as required by the Binding Financial Agreement.

The file note records that the deceased “had very limited English”. More likely than not, the “facts” it records represent a story told by the first defendant rather than any independent statement on the part of the deceased. By that time he was suffering severe dementia and unable to manage his own affairs.

The first defendant did not disclose to the NSW Trustee that the deceased had purportedly married Ms Guo on 26 April 2016.

The first defendant departed Australia on 30 July 2016, returning on 3 August 2016.

Upon her return, she effected a quick sale of the Redfern Property, off market, without any advertising and without notice to the plaintiff, the family of the plaintiff or NCAT. She said she did so because she was afraid to live there alone, especially with Ms Guo back in China. She suggested, also, that the decision to sell the property was made by her jointly with the deceased, an unlikely proposition.

On 24 August 2016 the Registrar General registered:

On 26 August 2016, as earlier noticed, the Guardianship Division of NCAT conducted a hearing that culminated in confirmation of the orders made by the Tribunal on 26 May 2016, appointing the NSW Trustee as the deceased’s financial manager and the plaintiff as his guardian.

The first defendant participated in that hearing, during the course of which she contended: (a) that the deceased did not require a financial manager or guardian; and (b) that she had paid the deceased $150,000 in connection with the Redfern Property. She did not disclose to the Tribunal, the NSW Trustee or the plaintiff and her husband that she had granted a lease of the Redfern Property for cash or that she had sold the property during the pendency of the Tribunal proceedings. Neither did she disclose to the Tribunal (or anybody else associated with the Tribunal proceedings) Ms Guo’s purported marriage to the deceased or invite Ms Guo to participate in the Tribunal proceedings.

As earlier recorded, following her sale of the Redfern Property, and before the death of the deceased on 23 August 2017, the first defendant applied proceeds of the sale of the property:

The first defendant departed Australia on 16 November 2016, returning on 24 November 2016.

The first defendant departed Australia on 11 January 2017, returning on 15 January 2017.

The first defendant departed Australia on 10 March 2017, returning on 13 March 2017.

The deceased died in his nursing home on 23 August 2017. The guardianship and financial management orders affecting him ceased to operate on his death.

The first defendant says that she learnt of the deceased’s death when she visited his nursing home on or about 25 August 2017.

A funeral service was held for the deceased on 31 August 2017. The plaintiff and her husband paid $10,990.45 for it. Neither the first defendant nor Ms Guo attended the funeral, sent flowers or offered condolences. Neither offered to pay for the funeral. The first defendant says she was not told of the date of the funeral by the plaintiff, who had assumed the role of the deceased’s guardian. There is no evidence that she made any enquiry of the plaintiff.

Shortly after the deceased’s death the first defendant purchased a residential unit in Harris Street, Pyrmont using the Pyrmont Street property as security for a loan from the Commonwealth Bank of Australia, a property which the first defendant says she has since sold.

On 12 October 2018 the plaintiff was appointed as a special administrator of the estate of the deceased.

On or about 12 October 2018 the plaintiff lodged a caveat (dealing AN7800782) against the title of the Pyrmont Street property and the two Harris Street garage spaces.

By Court orders made in these proceedings on 11 and 18 February 2020, the operation of the caveat was extended to the Harris Street property until further order.

For reasons earlier explained, I find that the deceased (to the knowledge of the first defendant) lacked capacity:

For reasons earlier stated, I find that the first defendant had knowledge of the deceased’s incapacity in relation to each of these transactions, at least to the extent that she was aware of facts that would have suggested to any reasonable observer that the deceased lacked mental capacity to transact the business at hand. On my assessment of the first defendant, she had actual knowledge of the deceased’s incapacity. However, if I am wrong about that, she had knowledge sufficient to establish that she ought to have known.

Each of the impugned transactions was an unconscionable dealing on the part of the first defendant (liable to be set aside) in that: (a) the deceased was, at the time of each transaction, suffering from a special disadvantage vis-à-vis the first defendant; (b) that special disadvantage seriously affected the deceased’s capacity to judge or protect his own interests; (c) the first defendant knew of the deceased’s special disadvantage, or at least of facts which would raise that possibility in the mind of any reasonable person; (d) the first defendant took advantage of the opportunity presented by the deceased’s special disadvantage by calculated steps to divest him of the Redfern Property, his principal asset; and (e) that taking of advantage was unconscientious, the transactions by which the first defendant acquired the Redfern Property being demonstrably improvident viewed from the perspective of the deceased.

In finding that the impugned transactions were liable to be set aside as unconscionable dealings, I acknowledge that equitable intervention could equally be justified by reference to principles governing undue influence and breaches of fiduciary obligations. Whilst purporting to care for the deceased, the first defendant had and exercised for her own benefit a psychological ascendancy over the deceased, dominating any decision-making of which he was otherwise capable in the process of securing substantially all his wealth for herself. Nothing in the parties’ relationship could justify such a transfer of wealth. The deceased was not capable of giving, and did not give, a fully informed consent to the impugned transactions. In light of my findings of unconscionability, it is not necessary to elaborate alternative forms of equity available to the deceased’s estate.

These findings are sufficient to justify the imposition of a constructive trust on the first defendant’s acquisition of the Redfern Property, attaching to her dealings with the property, including the proceeds of its sale traced into subsequently acquired property. Her title to the property was acquired in such circumstances that she could not in good conscience retain a beneficial interest in the property, as a consequence of which she should be found to have held title as a constructive trustee for the deceased and, as such, liable to account to his estate for her dealings with his property: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 108; Muschinski v Dodds (1985) 160 CLR 583 at 615-616; Giumelli v Giumelli (1999) 196 CLR 101 at 111-112.

By imposition of a constructive trust, and the taking of such accounts as may be necessary, the first defendant must account to the estate of the deceased for his property.

On the taking of accounts, the first defendant is obliged to account for all rents, profits or benefits received by her from her lease or use of the Redfern Property. The object of taking of accounts is to strip her of gains unconscionably made by her at the expense of the estate of the deceased: Phillips v Robab Pty Ltd [2014] NSWSC 1520; (2014) 110 IPR 184 at [175]-[176]; Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1 at [75]. She is not entitled to a credit for monies paid into court by other defendants as compensation for losses suffered by the estate. There is no inconsistency between an order that she account for “profits” and the estate’s receipt of compensation from parties unrelated to her. Her obligation is to disgorge gains unconscionably made by her at the expense of the deceased’s estate.

In the unlikely event that the estate recovers more than its loss there may, possibly, be a contest about competing entitlements to the surplus (the plaintiff having disclaimed an entitlement to more than the estate’s loss, including costs), but that is at present a theoretical possibility at best.

Prima facie, on the taking of accounts the deceased’s estate might expect to recover at least the sum of $1,050,000 for which she sold the Redfern Property in August 2016. To the extent that those funds cannot be traced into other property, the estate will be entitled to equitable compensation.

A complaint by the first defendant that representatives of the deceased were guilty of laches because of delay in the commencement of enforcement proceedings following the appointment of the NSW Trustee as a financial manager on 26 May 2016 goes nowhere: see, generally, Meagher, Gummow and Lehane, Equity Doctrines and Remedies (5th edition, 2015), chapter 38. Allowance must be made for difficulties associated with an investigation of the affairs of an incapable person whose family relationships were not straight forward, and the first defendant appears not to have altered her position in the meantime, each of the properties acquired by her using proceeds of sale of the Redfern Property being the subject of a current caveat. Enforcement of the equitable entitlements of the estate of the deceased involves no injustice to the first defendant.

A constructive trust having attached to the first defendant’s interests in the Redfern Property (culminating in her registration as sole proprietor of the property), it is not necessary for there to be formal orders declaring the invalidity of intermediate transactions purportedly effected by the deceased.

However, for more abundant caution and as a formal means for articulating the Court’s reasons for judgment, I propose to make declarations of the effect that:

There is utility in a declaration that the marriage between the deceased and the first defendant was a nullity beyond a formal articulation of the Court’s reasons for judgment. Such a declaration would operate against any application made by the first defendant (out of time) for a family provision order against the estate of the deceased under Chapter 3 of the Succession Act 2006 NSW. Whether or not the first defendant could establish that she is an “eligible person” within the meaning of section 57(1) of the Succession Act 2006 on a ground other than status as a “former spouse”, recognition of the invalidity of her marriage to the deceased would operate against any purported reliance upon the marriage. Given that she procured the marriage in aid of her acquisition of the Redfern Property, and as an integral part of the process of acquisition, it would be unconscionable for her to hold herself out as once married to the deceased. A declaration of nullity is, accordingly, appropriate.

I reserve for consideration whether an order can or should be made in these proceedings for correction of the register kept under the Births, Deaths and Marriages Registration Act 1995 NSW. Young CJ in Eq made such an order in Privet v Vovk [2005] NSWSC 1258; 195 FLR 191 at [33].

In addition to declarations about the void marriage and land dealings, I propose to declare that the first defendant at no time paid the sum of $150,000 (referred to in the Binding Financial Agreement dated 6 July 2015), in cash or otherwise, to the deceased.

Each of the foreshadowed declarations is relatively formal, given the findings made in these reasons for judgment. The core relief to which the plaintiff is entitled comprises:

I remain open to what, if any, specific orders should be made in relation to the residential unit known as 100/313-364 Harris Street, Pyrmont, currently the subject of a caveat in favour of the deceased’s estate, but possibly the subject of a third party claim by a purchaser from the first defendant.

As presently advised, I see no necessity for formal orders upholding the plaintiff’s challenge to the validity of the power of attorney dated 25 November 2015 and the guardianship appointment dated 1 December 2015, neither of which appears to have any ongoing practical significance in light of other relief to be granted and the fact of the death of the deceased.

Consideration needs to be given to what, if any, orders should be made for ongoing administration of the estate of the deceased (including enforcement of orders against the first defendant) pending the determination of the probate proceedings between Wing Tong Ip and Ms Guo.

I propose to allow the parties an opportunity to be heard as to the form of orders to be made to give effect to this judgment and as to costs.

Prima facie, costs follow the event (Civil Procedure Act 2005 NSW, section 98; Uniform Civil Procedure Rules 2005 NSW, rule 42.1), as a consequence of which, in the absence of any countervailing submission, an order will be made that the first defendant pay the plaintiff’s costs of the proceedings.

Whether there is a need to make orders consequential upon subsisting interlocutory orders (including a freezing order affecting the first defendant made on 12 October 2018) is a topic upon which I invite submissions.