Mills v Dodds

HIS HONOUR: Revenge “served cold”, [1] by a duplicitous manipulating sister on one side [2] and a reconstructed memory contorting a mere expression of goodwill into a hoped for inheritance on the other side [3] are the main competing case theories advanced by counsel to explain certain perplexing events bearing upon a now disputed arrangement said to have been established between the plaintiff, Jennine Catherine Mills (Jennine or plaintiff), and her older sister, Lynette Rose Paton (deceased), in the context of the deceased’s terminal cancer diagnosis and advice that she had only a matter of months to live.

Jennine claims that, during a telephone conversation in October 2020, the deceased promised her that, if Jennine lived with and cared for the deceased until her death, the deceased would leave half of her estate to Jennine (alleged promise). Jennine travelled interstate, quarantined, lived with and she says cared for the deceased, yet the deceased did not make a Will to the effect asserted. Jennine sues the defendant, Karen Ann Dodds (Karen or defendant), the executrix of the deceased’s estate, to enforce the alleged promise by alternative claims based on a testamentary contract or equitable estoppel.

Karen, who on 15 February 2022 was granted probate of the deceased’s Will dated 26 October 2020 (Will), disputes the claim. Further, by her cross-claim for money had and received, Karen claims that certain withdrawals from the deceased’s bank account by Jennine in the days prior to and immediately following the deceased’s death, totalling $81,799, were unauthorised and ought to be paid to her as executrix of the deceased’s estate, with interest.

The above case theories did not ultimately reconcile in a convincing way all the materials and the quandaries in the evidence and in that sense were flawed. In the final analysis, I have rejected the notion that Jennine’s evidence on the critical issues was reconstructed. Similarly, the revenge theory did not withstand final scrutiny.

The defendant led evidence suggesting the deceased’s relationship with Jennine was not close, was marked with discord, [4] and had been earlier fractured by an alleged failure by Jennine to assist, financially or otherwise, the deceased in caring for their sick mother. Karen gives evidence that, at times, the deceased told her that she was “betrayed and hurt by Jennine”. [5]

In outlining the revenge theory, Mr Maconachie and Ms Summerhayes gathered in their outline of opening submissions [6] (POS), under the heading “Betrayal”, the various references in the affidavit material relied upon by the defendant setting out statements made by the deceased to certain of those witnesses and by them to her identifying aspects of the apparent discord. [7]

Under the revenge theory, the deceased was some form of Jekyll and Hyde character who found a way to be all things to all people, presenting to her friends as a generous and thoughtful person, whilst avenging her sister for what she perceived to be a prior betrayal. [8] Allegedly, the deceased acted in a duplicitous [9] manner to Jennine, sent her disingenuous cards [10] and harboured [11] a long-standing resentment arising out of historic events in which she was left by her siblings to principally care for their mother. Mr Maconachie submitted that the evidence of discord and betrayal led on the part of the defendant was a surprise to the plaintiff, with her believing that she had always had a close and loving relationship with the deceased. [12]

However, that material sits uneasily with facts showing the deceased turning to her sister in her hour of need, appointing her to positions of being executrix, enduring attorney and enduring guardian, and corresponding with her sister and her husband in seemingly loving and effusive terms.

Mr Maconachie in the oral opening indicated that the “vast majority” of what is stated in Mr Yazdani’s submissions is common ground. [13] Mr Maconachie did not cross-examine the deponents called in the defendant’s case, other than the defendant and her husband. His reason for limiting cross-examination (at least in part) was that he did not dispute that the deceased had made statements to those deponents regarding her testamentary intentions [14] and that Jennine was coming to Port Macquarie as an act of love rather than anything else, which in some respects might be said to have been at odds with the plaintiff’s case. [15] Mr Maconachie also relied upon what he said were “multiple contradictions and curiosities in the defendant’s case” within the evidence of the witnesses [16] (such as care for the deceased). [17] Cognisant of such evidence, which potentially was conflicting with the plaintiff’s case, the plaintiff’s counsel in the POS used strong language to characterise the deceased’s conduct referring to what they described as the deceased’s “mala fides”. [18]

Despite the above, Mr Maconachie submitted that I do not need to determine why the deceased did not honour the agreement or promise. [19] Further, by the end of the proceedings, it is not entirely clear to me that Mr Maconachie maintained that indecorous designation, in that he indicated that some of the deceased’s conduct was “just a bit strange”. [20]

There are some cases, including this one, where, in the long run, it is not possible nor necessary to pristinely reconcile all of the conflicting material in the case. Some aspects of this case remain a degree perplexing. However, what I have done is make findings on the evidence according to the applicable standard and burden of proof. I will first state those findings and then address the issues and provide further comment below.

For reasons which I explain below, I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the cross-claim are not liable to be repaid by the plaintiff.

Having regard to my findings in relation to the testamentary contract, it is not strictly necessary for me to address the estoppel claims. However, in case I be incorrect in relation to my findings on the testamentary contract, I have addressed the estoppel claim. In summary, whilst I have found that most of the elements of the estoppel have been made out, I am ultimately not persuaded that the appropriate remedy is to enforce the promise according to its terms. Essentially, that is because I have concerns regarding the proportionality of the value of half of the estate as to the prejudice or detriment suffered.

The deceased, a retired police officer, [21] was born in July 1956 [22] and died on 5 September 2021, aged 65. [23] She had no children [24] and was predeceased by her partner Alan Dawson (Alan) (in September 2020, also aged 65) [25] and also by her parents Rose Ellen Paton [26] (in 1995) [27] and Frank Trevor Paton [28] (in 2010). [29] The deceased is survived by Jennine and her brother Glen Paton (Glen).

Jennine, the deceased’s elder sister, was born in September 1952 and is currently aged 72. [30] She retired from her career as an air hostess/flight attendant in 2018, [31] and is married to Phillip Mills (Phillip) who was a Contracted Maintenance Supervisor with Jetstar. [32] He was stood down from the position on 24 March 2020 (during Covid), was placed on JobKeeper receiving a small percentage of his regular pay, and received a final payout on or after 29 November 2020 consequent upon his position being made redundant. [33] They have no children (or at least none are referred to in the evidence).

Glen, a retired Wing Commander with the RAAF [34] was, at least for some period, or still is, married to Rosemary [35] and has two adult children, Freya Chantelle Paton (Freya) [36] and Gene Blake Paton (Gene). [37] Glen currently resides in Burleigh Heads, Queensland. [38]

Sadly, the deceased and some of her immediate family had been afflicted with disease. She had been diagnosed with metastatic colorectal cancer in or around 2012 which she battled for 9 years. [39] Alan died from metastatic bowel cancer which he had battled for 11 years. [40] Her mother had died from Motor Neurone Disease, in or around 1995. [41]

Whilst Jennine receives certain personal effects, a motor vehicle and a $20,000 legacy under the Will, she does not receive anything close to half of the residuary estate.

Karen, a retired real estate salesperson/property manager, [42] was a very close friend of Lynette, having known her since 2002 as they both resided at South West Rocks and, between 2002 and 2010, would see each other on an almost daily basis. [43] In 2010, Karen moved to Port Macquarie and would meet up with Lynette once a month. Despite not seeing each other as often, they remained close friends. [44]

Without intending any disrespect, it is convenient to refer to the parties and the various other protagonists by their given names, as they have done in the various affidavits, with the exception of Justin Levido, a solicitor, whom I will refer to as being Mr Levido.

On the hearing, Mr Maconachie of counsel appeared on behalf of Jennine with Ms Summerhayes of counsel. Mr Yazdani of counsel appeared on behalf of Karen. Counsel for both sides provided a written outline of submissions prior to the hearing and made oral closing submissions following the completion of evidence. For convenience, I will refer to the submissions on behalf of Jennine as submissions by Mr Maconachie.

I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the POS of Mr Maconachie and Ms Summerhayes and Mr Yazdani’s opening written submissions dated 21 August 2024 (DOS). There are numerous occasions in emails and letters within the Court Book where words are misspelt or mistakenly used. Where I quote from such material, I have left the mistaken wording within the quote.

Jennine relied on affidavits by herself (14 November 2023 and 9 April 2024), her husband Phillip Mills (15 November 2023 and 9 April 2024) and her brother Glen Paton (16 November 2023 and 10 April 2024).

Karen relied upon affidavits from:

Other than Jane, Ronald and Mr Levido, all of the other deponents are retired.

According to the inventory of property, the deceased’s estate consists of the following assets: [45]

The deceased and some others described her strata title unit in Port Macquarie as her “Villa” [46] and I will refer to it as such.

By cl 2 of the Will, the deceased appointed Jennine as the sole executrix and trustee of her Will, provided that in the event that Jennine predeceased her or is unwilling or unable to act in that capacity, she appointed Karen as her alternative executrix and trustee.

By cl 3 of the Will, the deceased directed that the Villa is to be forthwith placed on the open market for sale using Port Macquarie First National Real Estate, with the property to be sold on a “walk in-walk out” basis as to major household items, furniture and appliances therein.

The following specific gifts and bequests were made:

By cl 10 of the Will, the residue of the deceased’s estate is divided as follows:

By cl 11 of the Will, the trustee is given various powers, including to sell any asset of the estate which is not the subject of a specific gift, and to sell, call in and convert into money such part or parts of the estate and property as may not consist of money.

Various details regarding administration of the estate have been provided in the evidence. The Court Book records estate administration statements as at 10 January 2023, [47] and 31 March 2023. [48]

On 17 January 2023 and 6 February 2023, the gifts in cll 6, 7 and 9 of the Will were distributed to the respective legatees. Jennine in her evidence stated that she made no claim and did not wish to interfere with the specific bequests in cll 6, 7 and 9 of the Will. [49] That accords with Karen’s understanding that Jennine had relinquished any claim to those gifts. [50]

As at 8 December 2023, the deceased’s estate was valued at $1,050,251.67, which included the sale proceeds of the Villa. [51] At that time, $1,020,000 was held in a term deposit and had accrued approximately $8,925, with the remaining $21,326.67 being held in trust by Levido Law + Property. There are no liabilities of the estate as at the deceased’s date of death or as at 8 December 2023 of which Karen is aware. [52]

In correspondence to Mr Levido in July 2023, both the solicitors for WIRES and the HCT, indicated their respective positions that the executrix of the deceased’s estate ought to oppose Jennine’s claims and distribute the estate in accordance with the Will. [53]

The claim for “half of the estate” was clarified by Mr Maconachie to be 50% of the net residuary estate of the deceased in lieu of the monetary gift in cl 8 of the deceased’s Will (see below). [54] He submitted that if Jennine is successful on her claim, but unsuccessful on the cross‑claim, “the figure of $1,051,052.22 would increase by $81,799 to $1,132,851.22”. [55] The figure of $1,051,052.22 is drawn from the estate administration statement as at 31 March 2023, being the funds of the residuary estate available for distribution after allowance for certain expenses and distributions of the $20,000 gifts to Tanya, Freya and Gene, an amount of $20,000 retained to pay tax and accounting fees, and an amount of $550,000 being anticipated costs and disbursements in finalising distribution. [56]

It is not apparent to me that that is the appropriate figure because administration has progressed since 31 March 2023. As at 8 December 2023, excluding the costs of the proceedings, the residuary estate is said to total $1,050,251.67. [57]

However, having made that observation, neither counsel suggested that it was necessary for me to identify some precise amount which constituted “half of the estate”. That is a matter that can be addressed in the administration of the estate having regard to the findings that I have made.

The defence, with a limited concession that the plaintiff lived with and assisted the deceased until her admission to hospital on 1 September 2021, [58] relevantly denies all aspects of the contractual claim and the estoppel claim. [59] The defence is otherwise unilluminating as to particulars and raises no positive defence to the claims.

The DOS was equally unilluminating in relation to defence of particular aspects of the plaintiff’s claims. Other than by reference to denial that the alleged contractual conversations occurred, [60] reference to the plaintiff’s “self-interest” [61] and reminders of the caution expressed in caselaw of approaching evidence regarding claims on deceaseds’ estates, [62] the DOS made no particular revelation regarding how the plaintiff’s contractual claim was being challenged. The approach taken as to the estoppel claim was only slightly more revealing in that the DOS, by reference to the six elements required for estoppel, essentially indicated that the Court should not be satisfied that any of the elements were made out [63] and noted that the words upon which the estoppel was said to be based were “too vague and uncertain to establish promissory estoppel”. [64]

The pleadings to support the cross-claim simply raise the issue that the alleged withdrawals and transfers were not authorised. [65] There was no real disclosure in the DOS of how the case of a lack of authorisation was put, indicating essentially that “there is no evidence that the deceased, at any point of time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account.” [66]

In the POS, the plaintiff’s counsel apprehended that Jennine’s claim was being defended on the basis that the deceased’s conduct was not consistent with the claimed contractual or equitable obligation. [67]

During Mr Maconachie’s opening, I made the observation that I understood that Mr Yazdani was pitching his case essentially on the basis that I should not accept the plaintiff’s evidence, though noting that I would have to wait and see how he developed his case. [68]

Mr Yazdani had opportunity to elaborate on the nature of the defence after Mr Maconachie’s opening at the commencement of the hearing, but simply indicated that there was “nothing really I wish to say by way of opening”, noting that I had the DOS and that he would be in a position to go through the evidence by way of closing submissions. [69]

In the above context, Mr Maconachie essentially understood the character of the defence as being an executrix who was a stranger to the principal conversation subject of the plaintiff’s claim, putting the plaintiff to proof. [70] As earlier noted, Mr Maconachie contended that there were contradictions which were a “dominant feature of the defendant’s case” [71] including, for example, in relation to the deceased’s state of health and need for care. [72]

In preparation for the hearing, the parties provided the following agreed list of real issues:

Having regard to the conflicting accounts of the sisters’ relationship and how counsel deployed those accounts in an attempt to explain the deceased’s conduct, prior to addressing particular contested factual issues, I will address the deceased’s relationship with Jennine and Glen later in this judgment.

The estoppel case was pleaded in terms of the deceased making a representation, which she knew the plaintiff was relying upon, and which she did rely upon to her detriment, in circumstances in which it would be unconscionable for the deceased to resile from the representation and not to leave 50% of the value of her residuary estate to the plaintiff upon her death. [74]

Self-evidently, there are differences between various forms of estoppel, including estoppel by encouragement, estoppel by acquiescence and estoppel concerned with the exercise of rights arising from or said to arise from presently subsisting contractual (or legal) relations between the parties.

The terminology used in the POS was somewhat varied, referring to equitable estoppel, promissory estoppel and equitable estoppel by encouragement. [75]

The DOS consistently described the estoppel claim as “promissory estoppel” and used the expressions equitable estoppel and promissory estoppel interchangeably. [76]

In opening the case, Mr Maconachie expressly indicated that the reference in the pleading to the heading “Proprietary estoppel” should probably have read “Equitable estoppel”. [77] During submissions, Mr Yazdani consistently referenced “promissory estoppel”. [78] That eventually led me to seek to clarify the nature of the estoppel. Following some debate on the issue, all counsel appeared to settle on describing the estoppel as “promissory estoppel or equitable promissory estoppel”. [79]

The framing of the list of estoppel issues were drawn in a manner almost exactly reflecting Barrett JA’s wording in Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 (Van Dyke v Sidhu (CA)) at [40]. The High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 (Sidhu v Van Dyke (HC)) described the relief sought in that case as being found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. [80] Barrett JA had observed that the above-mentioned elements had been relevantly drawn by the trial judge (Ward J) from various authorities, including relevantly Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (Waltons v Maher) per at 428-429. [81] The prevailing principles of promissory estoppel in Australia have been described by reference to that part of Brennan J’s judgment. [82]

Having regard to the framing of the list of issues using particular language to describe the elements of the estoppel, and the written and oral submissions, I propose to proceed with the understanding that the parties litigated on the basis that the estoppel being relied upon was “promissory estoppel” and the elements necessary to be established with are those set out in the list of issues.

Given that the parties’ claims in the proceedings are based upon significantly conflicting accounts of the relationship between Jennine and the deceased and the events which occurred in the months before the deceased’s death, it is helpful to set out a factual overview of matters. Most of what I record below under this factual overview is not the subject of any substantial dispute. However, some aspects gave rise to dispute and what I have recorded immediately below in that respect is simply to chronologically raise reference to the matter and I deal with the disputes regarding those issues further below.

In around 1980, the deceased commenced her career as a police officer with the New South Wales Police Force. [83]

Between approximately February to August 1991, the deceased took six months’ leave from the Police Force to look after her mother, who passed away that year. [84] According to Glen, the deceased was “in a position” to look after their mother, whilst he and Jennine were not. [85] For his part, Glen, who worked with the Royal Australian Air Force, was living in the RAAF Bases Williamtown and Point Cook and had a young family at the time of his mother’s illness. According to Jennine, the deceased had volunteered to look after their mother as she was close to her. [86] The deceased’s care for their mother during this time, and the perceived lack of support from her siblings, is the source of some controversy as to the deceased’s potential motives for having Jennine care for her later on. I will set out that controversy in more detail below.

In 1992, Jennine moved to live in Ocean Grove, Victoria, where she has continued to reside. [87]

In or around 1995, the deceased met Alan and sometime thereafter entered into a de facto relationship with him. [88]

In around 2009, Alan was diagnosed with metastatic bowel cancer. [89] It seems he had bowel surgery in November 2009 and then follow-up chemotherapy for six months. [90]

On 21 March 2012, the deceased attended the wedding of her niece Freya. In an email that she sent in June 2012 to a number of friends including Nada, she made the following comment which reveals some insight regarding her siblings Jennine and Glen: [91]

In March 2012, it being unclear whether before or after the wedding, the deceased used a Bowel Cancer testing kit, submitted the completed test, and was subsequently informed that she had tested positive for metastatic colorectal cancer. [92] On 12 April 2012, she underwent an operation in which part of her bowel was removed. [93]

Some four days after Alan collected the deceased from Port Macquarie Private Hospital, he received testing results which showed the rapid growth of the tumour outside his bowel. He underwent surgery on 7 May 2012. Although the surgeons were unable to remove the tumour, they conducted a form of bypass surgery. [94]

On 25 May 2012, the deceased started a course of chemotherapy. [95] On 1 June 2012, a week later, Alan commenced chemotherapy. [96]

It appears that the deceased was discharged from the Police Force around that time on medical grounds. [97]

On 12 June 2012, some two months after that operation, the deceased sent an email to various recipients, essentially updating them on the events of those three months. [98]

In around 2013, the deceased and Alan moved from South West Rocks to Port Macquarie as they were both being treated for cancer and wanted to be closer to Port Macquarie Base Hospital. [99] The couple were under the care of Dr Stephen Begbie (Dr Begbie), an oncologist based in Port Macquarie. [100] Relevantly, Dr Begbie is also the founder and chairman of the HCT, and both the deceased and Alan were the beneficiaries of the charity’s work during their treatment.

On 14 September 2020, Alan died. [101]

Later that day at 4:47 PM, the deceased sent Jane a text as follows:

On 24 September 2020, the deceased sent to Karen a message she had sent to “Ron” (i.e. Ronald) which records what appears to be some testamentary intentions that she had, at least at that stage. It is as follows: [102]

On 14 October 2020, the deceased telephoned Mr Levido to discuss the assistance which he could provide in respect of Alan’s estate and the preparation of a Will and associated documents. [103]

By mid-October 2020, it was clear that the deceased’s condition was terminal and she was undergoing palliative chemotherapy. Whilst there are conflicting accounts as to the basis on which Jennine travelled from her home in Victoria to Port Macquarie, it is clear that by mid-October 2020, some arrangement had been made between the deceased and Jennine whereby Jennine would visit the deceased for “end of life support”.

On 19 October 2020, Dr Shuen Yi Long, a Medical Oncology Advanced Trainee (Dr Long) prepared a letter which was signed by Dr Begbie addressed to the NSW Ministry of Health, as follows: [104]

On 20 October 2020, the following day, Dr Chloe Blanshard, a general practitioner (Dr Blanshard) signed a letter (in context, seemingly also prepared in support of Jennine being allowed to travel to New South Wales), which stated as follows: [105]

On 20 October 2020, the deceased attended Mr Levido’s office and she provided him with instructions regarding the following: [106]

On the morning of 26 October 2020, the deceased attended Mr Levido’s office and approved and executed an enduring power of attorney and appointment of enduring guardian, as well as the Will. [107] By the first two documents, the deceased granted an enduring power of attorney in favour of Jennine, and appointed Jennine as her enduring guardian. [108] Karen was made the deceased’s substitute enduring attorney and alternative enduring guardian.

In late October and November 2020, Nada stayed with the deceased. The first occasion was from 29 October 2020 to 1 November 2020 (i.e. about 3 to 4 days) and the second occasion being between 8-16 November 2020 (i.e. a little over a week). [109]

On 2 November 2020, Jennine’s COVID-19 New South Wales border entry permit application was approved. [110] The permit category noted on the border entry permit was described in the following terms: “Person entering for compassionate grounds, being the provision of end of life support or to attend a funeral or memorial service”. [111]

Between approximately 4-18 November 2020, Jennine was quarantining in Sydney. [112]

On 19 November 2020, Jennine arrived in Port Macquarie after spending a period of two weeks in quarantine in Sydney. [113] Apart from a period of time in February to March 2021 during which Jennine returned home to Victoria for a dental appointment, it is common ground that Jennine stayed with and assisted the deceased in Port Macquarie from November 2020 until the deceased’s death in September 2021. [114]

On 27 November 2020, Jennine and Karen attended Mr Levido’s office and accepted their respective appointments. [115]

On or about 7 December 2020, the deceased ceased chemotherapy but continued palliative and end of life support. [116]

On 7 December 2020, the deceased sent Jane a text as follows: [117]

On 9 December 2020, the deceased sent Karen a text (exhibit D3) which stated as follows:

On 3 February 2021, the deceased sent Nada [118] and Karen [119] texts with much of the first part of the text almost identical in content. The concluding parts of the texts are different. I set out the texts below and have underlined the concluding parts of the texts, which are different.

The text the deceased sent to Nada [120] at 4:08pm stated as follows:

The text the deceased sent to Karen [122] apparently at 4:25pm stated as follows:

Later on the same day (3 February 2021), apparently at 20:53, the deceased sent Phillip a text message as follows: [124]

Seemingly within minutes, on the same day (3 February 2021) apparently at 20:55, Phillip responded to the deceased with a text message as follows: [125]

On 5 February 2021, the deceased sent Karen a text (exhibit D2) as follows:

On 9 February 2021, the deceased sent Karen a text (exhibit D1) which stated as follows:

On 10 June 2021, the deceased sent a message to Karen, [126] inviting her to a party on 14 June 2021 she was hosting at her house at which (according to Karen) she invited her and Jennine’s mutual friends. The text was in the following terms: [127]

On 1 September 2021, the deceased had a “bad fall” and she was taken by ambulance to Wauchope District Memorial Hospital, where she remained until her passing. [128]

The deceased died at the Palliative Care Unit at Wauchope District Memorial Hospital on 5 September 2021. [129] Shortly thereafter, Jennine telephoned Mr Levido to inform him of the deceased’s death. [130]

Over a period of six days from 3 to 8 September 2021, it is common ground [131] that Jennine either withdrew or transferred sums on 10 occasions totalling $81,799 from the deceased’s Smart Access Account with the CBA to herself. [132] I will set this out below in dealing with the evidence regarding the impugned transactions.

Jennine subsequently transferred $30,000 from her account to Glen on 9 September 2021. [133]

On 10 September 2021, Mr Levido sent a letter to Jennine enclosing a copy of the Will and outlining various matters to be completed in relation to the deceased’s estate. [134]

On 15 September 2021, Jennine, Phillip and Glen attended Mr Levido’s office. [135] Mr Levido observes that, shortly into the conference, it became apparent that there was an “issue” with the contents of the Will, with Glen doing most of the talking. [136] Mr Levido states that “it was made clear to me that there was an expectation or feeling that Jennine Mills should have received a lot more than the entitlements set out in the Will, due to her looking after her sister and giving up a lot to do that in the last 6 to 12 months of her life.” [137]

On 20 September 2021, Glen returned to Jennine the $30,000 he received from her on the advice of Jennine’s solicitor that the payments may be disputed. [138]

On 22 September 2021, Jennine, Phillip, Karen and Kenneth had dinner together at a restaurant in Port Macquarie. Precisely what was said by the various attendees is, again, described in various conflicting accounts, as I set out in more detail below.

On 24 September 2021, Jennine signed a renunciation of probate. [139]

In relation to the requisite standard of proof for determining the facts in issue in this case, s 140 of the Evidence Act 1995 (NSW) provides:

The statutory standard requires “actual persuasion” of the occurrence or existence of a fact in issue, and not a mere mechanical comparison of the probabilities as between the competing accounts: Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 at [44]-[47] per Gleeson JA (Bell CJ at [1] and Stern JA at [62] agreeing).

The frailty of human recollection is well-known, particularly where the issues in the proceedings focus on events and alleged statements made many years ago.

Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.

Mr Yazdani submitted that “in view of the frailty of human memory, the inability of the deceased herself to give evidence and the plaintiff's self‑interest… more weight should be placed on contemporaneous documents where they are available, the objective surrounding circumstances and the inherent probabilities and improbabilities of events. Evidence of statements made by the deceased, particularly where they are disputed, ... must be examined carefully and treated with caution and, where possible, the Court should look for some corroboration”. [140]

The Court scrutinises very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff’s case with suspicion and as prima facie fraudulent, but it scrutinises the evidence very carefully to see whether it is true or untrue: Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14.

Broadly speaking, it seems to me that Mr Yazdani’s description of approach is consistent with the authorities and the Court ought to assess the evidence essentially in accordance with it.

A particular difficulty in this case is that few contemporaneous documents bear directly upon the events in the approximately one year period between September 2020 and September 2021 when the deceased died and, with a limited exception of a few texts which purport to record some comments of relevant parties in the proceedings, there are no contemporaneous documents that bear directly upon the critical conversations said to have occurred between Jennine and the deceased giving rise to the claims on the statement of claim and cross-claim.

The deceased kept a form of notebook or diary which was tendered and marked exhibit P1. It is an A5 spiral-bound “Project Book” with a number of dividers. It appears to include a range of different content, including, for example, some notes of physiotherapy exercises, phone numbers of various medical persons and other friends and family members, various appointment dates and payments referable to that, food recipes and a poem. I will refer to it as the “Project Book”.

Mr Yazdani submitted on a number of occasions that the evidence of the defendant’s witnesses was unchallenged and ought to be accepted by me.

There is no rule of law that in all cases, or even “ordinarily”, evidence which is not the subject of cross‑examination must be accepted: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 per Beech-Jones JA at [36] (Brereton JA at [1] and Mitchelmore JA at [103] agreeing).

In Clayton v Clayton [2023] NSWSC 399, I addressed some remarks to the question of evidence that had not been cross-examined upon or was otherwise unchallenged. I stated at [84]-[92]:

A related evidentiary proposition is in respect of uncontradicted evidence. It is sometimes said that in general, uncontradicted evidence in an uncontested proceeding, if it is not improbable or unreasonable, it should be acted upon.

In Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374 at 378, Sugerman J (Richardson and Macfarlan JJ agreeing at 380) stated:

In NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838, Ward CJ in Eq stated at [426]-[428]:

How the above-mentioned general principles apply in any given case will depend upon the circumstances of the case in and the context in which the evidence arises.

The fact that context is important was recognised by Sugerman J who noted that his stated proposition (regarding uncontradicted evidence in an uncontested proceeding) suffices when none but the opposing party can be adversely affected but requires some qualification with respect to proceedings in divorce. [142]

Experience tends to suggest that sometimes people say different things about a particular subject matter or topic to different people [143] depending on what effect they wish to achieve, [144] or want people to believe, [145] or depending upon the position that they occupy in their lives. [146] There might well be inconsistency in what a deceased person has disclosed to different people and the nature of disclosure. Commonly, a deceased’s motive for saying different things about the same subject matter or topic to different people, especially children, is in the interests of maintaining harmonious relationship with each of them. [147]

Mr Maconachie referred to a number of instances in which he submitted that Mr Yazdani had not complied relevantly with the rule in Browne v Dunn (1893) 6 R 67 (Brown v Dunn).

The circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [98] per Campbell J.

The rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version is in contest: see e.g. Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 (Gayle) at [117] per Leeming JA (Bell P and Gleeson JA agreeing at [1] and [4], respectively), citing J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) at [17445].

The rule is not applied mechanically. The very nature of the rule is such that what is sufficient in any given case to meet the requirements of procedural fairness will vary. Even when the rule applies so as to require a matter to be addressed in cross-examination, it should not be thought that the rule in Browne v Dunn requires that each individual inconsistency be put to the witness: Gayle at [123]-[128] per Leeming JA, clarifying comments of the Court of Appeal in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40].

Mr Yazdani submitted that I should find that the deceased was a trustworthy and honest person throughout her life. [148] He referenced the fact that Jennine had accepted that. [149]

There is evidence from Pamela that she considered the deceased ro be (relevantly) very honest. [150] In cross-examination, Jennine accepted that (from her perspective) the deceased was an honest and trustworthy person throughout her life. [151]

By and large, I accept that the deceased was honest and trustworthy. In that regard, as will be seen below, I reject the suggestions that the deceased was disingenuous in sending cards containing effusive and loving sentiments towards Jennine. As will be seen, I accept Jennine’s evidence regarding the alleged promise conversation with Jennine. The body of material whereby the deceased failed to make a Will in accordance with the promise, and other statements which are said to be counter to having made such a promise, does not necessarily lead to the conclusion that the deceased ceased to be, on the whole, an honest and trustworthy person.

It is unnecessary to make a concluded finding precisely identifying why the deceased did not make a Will in accordance with the alleged promise, although I have addressed some of the contended possibilities regarding that. However, I reject the case theory that in some way the deceased lured Jennine into thinking that she had promised leaving her half her estate for caring for her, whilst all along never intending to make good the promise, for the purpose of serving up revenge to address issues arising out of historic care for their mother.

Mr Yazdani also submitted that the deceased had a kind and caring nature and was always supporting the disadvantaged. [152] Mr Maconachie in opening disputed that submission, given the way that the deceased characterised her relationship with Jennine. [153] It is inessential to make any general finding regarding the deceased’s nature or whether she was “always supporting the disadvantaged”.

Mr Yazdani submitted she “was a very organised and driven person, obsessed with detail, very precise in her dealings with friends and family and was in control of her affairs right up until the end of August 2021, just prior to her final hospitalisation”. [154]

Kenneth gave evidence that the deceased was “obsessed with detail and very organised”. [155] I have little doubt that that was Kenneth’s experience of her. Precisely what Mr Yazdani contended flowed from that is unclear. To the extent that he sought to say that obsession with detail and organisation is contrary to the deceased having made the alleged promise without recording it in a formal way, I accept that it is one of a number of considerations that I have had regard to, but I do not accept that it is decisively contrary to success of the plaintiff’s case.

Mr Yazdani submitted that I should find that the deceased “was a selfless and compassionate woman, particularly towards the disadvantaged”, and that her selflessness and compassion was “given unsparingly to any animal which found its way into her life”. [156] There is really no need for me to embark upon those matters in any great detail. Jennine readily accepted in cross-examination that the deceased was a selfless and compassionate woman [157] and I do not doubt that, generally speaking, that was the case.

Underlying a degree of the evidence led by the defendant, as noted above, were strong elements, if not a theme, that the deceased’s relationship with each of Jennine and Glen was, up to October 2020, poor, sporadic and tinged with resentment borne out of issues attending the deceased’s care for their mother.

Some preliminary observations may be made.

First, the evidence of poor relationship was not universal to all of the defendant’s witnesses. The evidence led in the defendant’s case regarding discord was evidence from Karen, Nada, Jane and Kenneth. However, none of Pamela, [158] Ronald, [159] nor Helen, [160] gave any specific evidence suggesting that the deceased did not have a close relationship with Jennine or Glen. Further, Mr Levido does not give evidence of the deceased disparaging Jennine to him. [161]

Secondly, despite the evidence led in the defendant’s case regarding the deceased’s care for her mother and assertions that Jennine and Glen had not paid the deceased money they had promised to do so, Jennine was not cross-examined regarding those matters. Further, apart from brief questioning of Glen which I note below, he was not cross-examined in any detail about that.

The evidence which informed aspects of the case theories is set out below and I will address my findings in relation to the relationship as between the deceased and Jennine and the deceased and Glen.

Karen and two other deponents, being Jane and Nada, gave evidence of a past fracturing of a relationship between the deceased and Jennine.

Karen deposes that, on several occasions during the course of their friendship, the deceased had confided to her that she had had at times a “fractured relationship” with Jennine in the past. [162] She expressly denies that Jennine was close with the deceased, and deposes that she is aware of times when the deceased told her that she was “betrayed” and “hurt” by Jennine. [163] Specifically, Karen recalls the deceased speaking of her struggle with supporting her elderly mother with very little help from Jennine and Glen. Similar evidence is given by at least two other long-term friends of the deceased.

Nada [164] recalls the deceased telling her that she was “extremely hurt” when Jennine and Glen, knowing that the deceased was no longer receiving an income whilst on leave from the Police Force caring for their mother, each promised to give her $3,000 but then failed to honour the promise. [165] Nada deposes that “Lynette spoke of this often and could never reconcile their betrayal”.

Whilst Nada says that she often witnessed the relationship between Jennine and the deceased to be “conflicted” throughout most of their lives, she agrees the deceased’s relationship with her sister improved during the period leading up to her death. [166]

Upon being told by the deceased in November 2020 that Jennine was moving in with her, Jane recalls being surprised, as she had been led to believe by all accounts from the deceased that there were many times of “discord” throughout her relationship with Jennine. [167]

Jane gave evidence regarding the deceased’s care for her parents as follows: [168]

Jane stated that the “impression I was given by Lynette was that she and Jennine were reconnecting before her imminent death.” Jane made reference to text messages which I have set out above. [169]

Jane further stated: [170]

Helen’s evidence regarding the relationship as between the deceased and Jennine was as follows: [171]

Kenneth recalls that, during a conversation with the deceased in 2019, she advised him that she was not very close to Jennine, due to an “incident” that had occurred between them several years prior. [172] He also deposes to Alan telling him that “Jennine and I can’t stand each other. I won’t have Jennine in my home”.

Jennine deposes that she and the deceased always had a “strong bond” and were very close throughout their lives. [173] She says that they spoke on the phone at least twice a week, and often daily. Mr Maconachie submitted that it is Jennine’s contention that she has only discovered after the deceased’s death that she had harboured resentment towards her, based on the accounts given by her long-time friends, which Jennine had no idea about. [174]

In support of her claim that their relationship was close, Jennine adduced evidence of five birthday cards which she had received from the deceased over the years. [175] Whilst the cards are not dated per se, one is clearly written for Jennine’s 62nd birthday (which pinpoints the writing of the card in September 2014), and Alan is included in the sign-off for three of them. The handwritten messages on the cards consistently begin with addresses such as “To My Darling Sister” or “To a very special person on her birthday”. In one card, the deceased writes that she is “grateful that you’ve been there throughout my life”. [176] In another, she writes to Jennine that “You’re a wonderful sister, and a beautiful person”. [177] In the card for Jennine’s 62nd birthday, the deceased also indicates that she had gotten her a present, which she had spent some time thinking about. [178]

Jennine also deposes that, prior to November 2020, she visited the deceased on numerous occasions throughout their lives. During such trips, she says that they stayed in hotels as Alan had told Jennine that he did not want anyone staying at their house. [179] For that reason, Jennine says that she did not like Alan, and she understood that Alan did not like her.

The sisters also went on a number of overseas holidays together in Mexico, the USA (mainland) and Hawaii. [180]

From Phillip’s perspective, he says that it was “abundantly clear” that the sisters had a “very close and loving bond”. [181] He says that, following Alan’s cancer diagnosis, Jennine and the deceased spoke daily.

Jennine, in her reply to Nada’s evidence, stated: [182]

Jennine, in her reply affidavit responding in particular to the evidence of Karen that the deceased confided to her that she had “at times a fractured relationship with Jennine in the past”, [183] annexed certain birthday cards [184] and the handwritten content I set out below. In response to the evidence regarding looking after their mother, Jennine stated: [185]

In reply, Glen gave evidence as follows: [186]

Leaving aside the formal print on the cards, some of the handwritten contents are as follows:

Overall, I consider that the relationship between the deceased and Jennine was, at least as at early October 2020, a sufficiently good and stable relationship for the deceased to turn to her sister in a time of need. [192] Five points may be made.

First, it seems highly unlikely that the deceased would have committed the role of a carer to a sibling with whom she was in conflict at the time of the caring request.

Secondly, within a very short space of time after Jennine had arrived at Port Macquarie and prior to her having any lengthy opportunity to undertake caring for Jennine, the deceased attended upon Mr Levido with Jennine and made Jennine the executor of her Will, her attorney and guardian under appointments of an enduring power of attorney [193] and enduring guardian. [194] In the case of each of those documents, the defendant Karen was a substitute executor, attorney and guardian, as distinct from holding those positions jointly (or jointly and severally). Each of those positions are positions of trust, at least colloquially speaking, and it seems highly unlikely that the deceased would have reposed such trust in Jennine if their relationship was fractured or the deceased harboured resentment towards her sister.

Thirdly, bearing in mind the significance of looking to contemporaneous documentary material, to my mind, none of the (albeit limited) correspondence in the Court Book which emanates from the deceased, appears to reflect a fractured or troubled relationship as between the deceased and Jennine. On the contrary, where Jennine is mentioned, broadly speaking, it is in positive or at least cordial terms. The texts tendered which became exhibits D1, D2 and D3 provide some, albeit, in the scheme of things extremely minor snapshot, of the deceased’s thoughts as at 9 December 2020, 5 February 2021 and 9 February 2021. None of the texts to my mind are consistent with the deceased having other than a good relationship with her sister during that two month period.

Mr Maconachie in opening referred to the birthday cards, [195] submitting that, throughout the period in which the birthday cards were written, the deceased was representing herself to Jennine as being a loving sister. Upon questioning by me, he confirmed his contention that the cards are disingenuous. [196] This is no doubt in line with an initial written submission to the effect that the deceased was serving up revenge to Jennine. However, in relation to the birthday cards, I reject the submission that the apparent loving content was disingenuous.

The birthday cards produced by Jennine contain what appeared to be genuine, endearing and effusive expressions of love. I find that they were expressive of loving intentions as they purport to be.

Further, the text which the deceased sent to Phillip on 3 February 2021 also gives particular insight as to the deceased’s feelings regarding Jennine, which are expressed in similarly loving terms: [197]

Fourthly, in line with what I have earlier said about aspects of human nature, I admit of the possibility in this case that the deceased without acting maliciously, might have said different things about the nature of her relationship with Jennine to her friends on the one hand and to her siblings and Phillip on the other hand.

Lastly, in the absence of some further context and lack of cross-examination (of any of the defendant’s witnesses and Jennine regarding the alleged source of discord in issues arising out of care for the deceased’s mother), I find myself unable to make particular findings regarding those historic matters raised by Jane, Nada and Karen.

Mr Yazdani asserted that Glen did not have a close relationship with Lynette and that there are a number of independent witnesses who set that out in their affidavits, which was unchallenged. [198]

Glen stated that he and his siblings had an “extremely close” sibling relationship. [199] Specifically, he gave evidence that he had a good relationship with the deceased, stating: [200]

Nada gave evidence responding to this, stating: [201]

Karen gave evidence stating: [202]

Glen replied to Nada’s evidence regarding this, stating: [203]

In cross-examination, Mr Yazdani challenged Glen to the effect that he did not have a close relationship with the deceased by reference to the fact that he was not a beneficiary in the Will. Glen lacked clarity regarding the deceased’s Will, initially thinking that he had not read the Will though he may have but could not remember. [204] On further questioning, he was aware that the deceased had given legacies to his children and that he was not a beneficiary. [205]

He disputed that he was not close with the deceased and contended that he had “a very close relationship” with her and “always have”. [206] Mr Yazdani sought to undermine Glen’s assertion of a close relationship by cross-examination to the effect that he had not annexed to the affidavit any letters he had exchanged with the deceased or photographs of them together. [207] Mr Yazdani asked Glen a single question regarding whether it was the case that the deceased was upset at him for not being there to provide help to their late mother who was suffering from an autoimmune deceased, to which he responded “She may have been. I don’t know for a fact”. [208]

Lastly, Mr Yazdani cross-examined Glen as to why he did not attend Lynette’s memorial. [209]

Glen stated: [210]

Mr Yazdani ultimately submitted that the whole point of a memorial is to go there in memory of someone who is deceased and contended that Glen’s responses was another indication from which I could infer that he simply did not have a close relationship with the deceased. [211]

I find that as at October 2020, the deceased had a reasonable relationship with Glen. A few points may be observed.

First, Karen’s evidence that, having met the deceased in or around 2002, she was not made aware that she had a brother until sometime in 2006 or 2007 is somewhat intriguing. Her statement that “I never witnessed her speaking to Glen or visiting him. Given it took Lynette around 4 to 5 years to mention her brother to me, it was clear to me that they were not close” is obviously inconclusive of whether Glen had a close relationship with the deceased or not. If it be the case that Karen between approximately 2002 and 2007 apparently never had any conversations with the deceased or potentially never asked the deceased whether she had any siblings other than Jennine, it might equally reflect the nature of the relationship between the deceased and Karen or the extent of Karen’s appetite to find out about the deceased’s family, rather than necessarily revealing some concluded insight as to the relationship between the deceased and Glen.

The minimal cross-examination of Glen about the deceased’s care for her mother did not elicit any vital material for that matter to have been the basis of the deceased harbouring enduring resentment to Glen. In any event, it seems to me that there is fairly marginal relevance of attempting to work out historically what the nature of the relationship between the deceased and Glen was in or about 2002 to 2007.

Secondly, I accept Glen’s evidence that the deceased did speak with him prior to approaching Jennine in October 2020 (discussed further below). The fact that the deceased saw fit to contact Glen and speak with him, in the terms that she did, just prior to speaking with Jennine is suggestive to me that, at least at that time (much closer to the events that are in dispute), the deceased then had a reasonable relationship with Glen.

The fact that Glen did not annex particular correspondence as between himself and the deceased is to my mind anodyne and not conclusive of the relationship being poor. There is no obvious reason why any such correspondence or photographs would have been adduced in chief. When asked about it, he indicated that, rather than exchanging letters, they spoke on the phone together and that he did have photographs of them together but did not believe it was necessary for them to be annexed to his affidavit. [212] He was not confronted with any particular documentary material demonstrating in a clear way that the deceased thought poorly of him.

Thirdly, there are many reasons why siblings might not make gifts to other siblings in their Wills which bear no reflection upon the state of the relationship as between the siblings. The fact that the deceased made no particular provision for Glen in her Will is to my mind benign or neutral as to an indicator that the relationship between the deceased and Glen was poor.

Fourthly, frequently in estate cases, there is cross-examination to the effect that someone who does not attend a funeral or memorial service has not had a good relationship with a deceased or has failed to attend out of some other poor motive. It is not uncommon for the cross-examination to have little utility. There may be occasions when there is some form of express evidence that the person has said that they are not attending because they dislike the deceased or were in a poor relationship. However, there are many reasons why people do or do not attend funerals or memorial services. The absence of someone from such a service does not necessarily prove that they were not in a close relationship with the deceased.

In any event, I accept Glen’s evidence that there was some pressing matter and his evidence that he had a close relationship with the deceased.

Nada gave evidence that, during October 2020, she attended an oncologist appointment with the deceased and, after the appointment, the deceased told her “she knew she had a ‘short time left’ and that she was comforted in knowing that her affairs, particularly her Will, were all in order”. [213] Dr Blanshard appears to be a GP and accordingly I infer that the reference to an oncologist was to an attendance that the deceased had with Dr Begbie (seemingly with Dr Long also in attendance) on 19 October 2020.

The letter of Dr Blanshard dated 20 October 2020 states that she had examined the deceased that day and her prognosis is “six months”. [214]

Each of Jennine [215] and Glen [216] state that the deceased in their October 2020 conversations informed them that she only had about 3 to 6 months to live. Nada in her reply affidavit takes issue with that asserting that she was “always told by Lynette of her prognosis being six (6) months and it is my understanding there was no contention to this”. [217] The conversations that the deceased had with Jennine and Glen were a couple of days prior to the deceased seeing Dr Blanshard. There is no particular evidence as to a survival period prognosis that had been given to the deceased prior to seeing Dr Blanshard. I admit of the possibility that someone at the Hospital may have given the deceased some indication of a survival period. What is in issue is not proving the exact period in which the deceased was expected to live but rather what the deceased stated to Jennine and Glen. Had the deceased’s examination with Dr Blanshard on 20 October 2020 taken place prior to her speaking to Jennine and Glen, I might have taken a different view of it.

I accept the evidence of Jennine and Glen as to the prognosis timing that the deceased told them. It was repeated by Jennine to Phillip. [218] It seems to me that it is consistent with the deceased’s own views of the matter up until the time that she spoke with them after having spoken with her medical advisers. It is also broadly consistent with the deceased’s statement or indication as described by Nada that “she knew she had a ‘short time left’” having attended upon Dr Begbie (and seemingly also Dr Long) within a day or so after having spoken with Jennine. Further, it is not radically different from a prognosis of six months. It is clear that in the period following Alan’s death, in particular in the text sent to Ronald, which was forwarded to Karen on 24 September 2020, the deceased was seeking advice with some urgency [219] and might well have thought that she did not have long to live.

The evidence on the purported conversations in October 2020 was the subject of particular challenge in the case.

On Jennine’s version of events, the deceased had promised to give Jennine half of her estate if Jennine agreed to come to Port Macquarie to look after her until she passed. Whilst there are some differences in the accounts given by Karen’s witnesses as to whether it was Jennine who offered to come out of familial love and care or whether it was in fact the deceased who requested Jennine to come, they all maintain that at no point did the deceased or Jennine say that the deceased had promised to give half of her estate to Jennine.

Although none of the defendant’s witnesses were privy to the conversations, Mr Yazdani submitted that the conversation is deposed to by Jennine, Glen and Phillip are at odds with other evidence of the defendant’s witnesses.

It is appropriate to set out the evidence on the contested conversations.

According to Glen, the deceased had a conversation with him in the latter half of October 2020 which he recalls, although not in the exact words, as follows: [220] (alleged precursor conversation):

Jennine deposes that she received a call from the deceased on 17 or 18 October 2020, during which the deceased was crying and sounding very upset. [221] Relevantly, Jennine’s recollection of the conversation, although not in the exact words, is as follows (alleged promise conversation):

Jennine immediately spoke with Phillip about the conversation she had had with the deceased, and she recalls telling him the substance of what had been discussed. [222] Phillip’s recollection of his conversation with Jennine, although not in the exact words, is as follows: [223] (alleged recounting conversation):

Over the next few days there was further discussion as between Jennine and Phillip regarding the matter. Phillip states: [224]

A day or so after Glen had spoken with the deceased, he had a further conversation as follows, though he did not remember the exact words (alleged carer conversation): [225]

Glen visited the deceased and Jennine in Port Macquarie a few times before the borders were closed during the COVID-19 pandemic. He recalls, although not in the exact words, the following conversation he had with the deceased (alleged change of Will conversation): [226]

Sometime after the deceased’s death in September 2021, both Glen and Jennine refer to conversations after the deceased’s death in September 2021 bearing upon the alleged promise (alleged post death promise conversation(s)).

Glen recalls having a conversation with Jennine, although not in the exact words, as follows: [227]

Jennine also deposes to a conversation with Glen following receipt of the deceased’s Will, it being unclear as to whether their recollections are in respect of the same conversation. The conversation recalled by Jennine was as follows: [228]

Jennine states that this was the first she became aware of the fact that the deceased had discussed the proposal. [229]

For convenience, I will describe the alleged precursor conversation, the alleged promise conversation, the alleged recounting conversation, the alleged carer conversation, the alleged change of Will conversation and the alleged post death promise conversation(s) as the “contested alleged conversations”.

The following matters emerged during Jennine’s cross-examination regarding the alleged promise conversation:

Jennine denied that her affidavit version of the alleged promise conversation is a reconstructed account by her of a conversation that she wished she had with Lynette but that did not actually take place in that form. [244]

Mr Yazdani asked Jennine a number of questions regarding enforceability of promises and entry into a contract with the deceased. The evidence was as follows:

Jennine’s evidence regarding referring to her sister as “chook” I infer was endearing. That is consistent with the text from Phillip to the deceased on 3 February 2021 which contains a number of references to her “very cherished little chook sister” and her “so dearly cherished sister chook”. [248]

The following matters emerged during Glen’s cross-examination regarding the alleged precursor conversation:

In relation to the alleged carer conversation, [263] in cross-examination, Glen:

Concerning the alleged change of Will conversation, [268] in cross-examination, Glen indicated that the conversation took place in the first quarter of 2021, he thinks about March. He recalls having trouble getting back over the border to Queensland and that he had to take Covid tests at Tweed Heads Hospital and stay at a friend’s place until he was cleared. [269]

Further, in cross-examination, the following was detailed:

During Phillip’s cross-examination, the following occurred:

According to Helen, she had visited the deceased in the days following Alan’s passing on 14 September 2020. At that time, Helen says that the deceased reassured her that “when the time came Jennine had promised to come up and care for her [Lynette] as an act of family love as we would all do for our own siblings, not expecting anything in return”. [278] Not once did the deceased mention to Helen that she had promised Jennine half of her estate. [279]

To similar effect, Jane also understood from what the deceased had told her that Jennine was looking after the deceased “as an act of familial care and love”, and the sisters were reconnecting before the deceased’s imminent death. [280] Jane made reference to a text message sent to her from the deceased on 7 December 2020 in which she mentioned that she was “[e]njoying having Jennine here fussing over me like a sister/mummy does!” [281]

In a conversation said to have taken place over coffee on 20 October 2020, Karen deposes that the deceased told her Jennine had offered to come and stay with her until the end of her life. [282] The deceased also told Karen that she would pay for Jennine’s flights, hotel accommodation for the mandatory quarantine period and all of Jennine’s expenses during her stay (which, to Karen’s knowledge, the deceased did). During the same conversation, the deceased informed Karen that she was going to bequeath to Jennine a sum of $20,000 in addition to giving Jennine her Volkswagen Tiguan, which the deceased considered to be appropriate as she considered Jennine and Phillip to be financially secure. [283] Karen later recalled that the conversation was to the following effect: [284]

Karen denies Jennine’s assertion that the deceased asked for her care in exchange for half of the deceased’s estate. [285] Karen states that at no point did Jennine tell her that she was promised half of the deceased’s estate. [286]

The combined effect of the above appears to suggest that, on the version put forward by Karen’s witnesses, Jennine’s act in providing care and assistance to the deceased in October 2020 until her death was an act of familial love, rather than on the basis that Jennine had been promised half of the deceased’s estate.

That being said, Nada recalls the deceased telling her that she had asked Jennine to move in with her in an effort to improve her relationship with Jennine and to assist Jennine to develop relationships with the deceased’s friends. [287]

Mr Yazdani contended that each of Jennine, Glen and Phillip essentially reconstructed their evidence from what they wished had occurred. [288] However despite a matter which I will refer to below regarding evidence of Kenneth Dodds, Mr Yazdani was not so bold as to suggest that there has been collusion between at least Jennine and Glen. [289]

Underpinning Mr Yazdani’s submissions regarding the conversations were particular matters which I will address below.

However, it suffices at this point to state that I accept the gist of the evidence of each of Jennine, Glen and Phillip in relation to contested alleged conversations.

Having regard to the comprehensive challenge by Mr Yazdani as to certain matters both in respect of the contested alleged conversations and other collateral matters, I will address those matters below.

Mr Yazdani submitted that prior to Alan’s death, both he and Lynette had contemplated making new wills. Over a number of years, both Alan and Lynette had expressed their wish for the majority of the estate of the survivor of them to pass to the HCT and WIRES, with the former to receive a greater share. [290] He stressed that the evidence of the deceased’s testamentary intentions and her Will were contrary to the plaintiff’s case in respect of the alleged testamentary contract and estoppel claim.

There is a body of evidence from the defendant’s witnesses, which I accept, to the effect that the deceased informed them after Alan’s death of their testamentary intentions to benefit (initially the Cancer Council), HCT and Wires and other content of her Will. This includes evidence from Pamela, [291] Ronald, [292] Helen, [293] Jane, [294] Nada, [295] Karen [296] and Kenneth. [297]

This aspect is not particularly disputed. Indeed, Mr Maconachie accepts that the deceased was very vocal about the contents of her Will. [298]

Jennine readily agreed that she had been relevantly aware that the deceased and Alan wanted the majority of the residuary estate to pass to the HCT and to also benefit WIRES. [299] Phillip acknowledged that prior to Alan’s death he had been told by the deceased that she and Alan were leaving their entire estate to a “local Cancer Foundation and an Animal Welfare group”, which in cross-examination he confirmed he understood to be HCT and WIRES. [300]

On 12 June 2021, Jane travelled to Port Macquarie and stayed with the deceased. Jennine and Phillip were there at the time. [301] Jane states: [302]

Nada also gave evidence that the deceased: [303]

Mr Yazdani submitted that:

Mr Yazdani stated that Glen’s evidence that he had a conversation with the deceased in which she specifically talks about the terms of the Will or discusses what she is going to do with her estate with him, is entirely inconsistent or at the very least implausible on the face of the Will itself where she has specifically excluded him as being a beneficiary (as distinct from his children) from the Will. [306]

Mr Yazdani also submitted [307] that the deceased’s text message to Ronald on 24 September 2020 was inconsistent with the idea that she would leave the plaintiff half her estate and emphasised that Jennine had agreed with that inconsistency. [308]

The making of the Will by the deceased on 26 October 2020, approximately a week after the alleged promise conversation, was well before Jennine arrived in Port Macquarie.

Nada stated that “at no point” did the deceased tell her that she was giving Jennine half of her estate. [309]

However, that fact alone is not decisive of whether such a promise was made. Whilst there is no need for me to form a view as to why, if the deceased did make the alleged promise, the deceased did not at that point of time incorporate the alleged promise in her Will, it seems to me at least plausible that the deceased wished to have a Will in place to incorporate the intentions that she had within the couple weeks following Alan’s death regarding the disposition of her estate on the basis that she believed that she might imminently die. By that point of time, even if she had made the alleged promise, Jennine had not even arrived in Port Macquarie let alone commenced any period of care for the deceased.

On 19 November 2020, approximately a calendar month after the alleged promise conversation, Jennine arrived in Port Macquarie having spent two weeks of quarantine in Sydney. [310]

The attendance of Jennine at Mr Levido’s office on 27 November 2020 for the purpose of accepting her appointment as the deceased’s attorney, [311] whilst a factor to be weighed, does not decisively count against the deceased having made the alleged promise. The purpose of the appointment was not to make a Will but to address acceptance of the power of attorney. Even if it had occurred to the deceased on that occasion to readdress the making of her Will, at that stage, Jennine had only been in Port Macquarie with the deceased for approximately a week. It does not seem to me to be inexplicable that the deceased would not at that point of time, based on Jennine only being with her for a week, change what appears to have been a relatively long-standing intention regarding disposition of her estate.

Whilst there is no need to speculate, from the deceased’s perspective, on the basis that she believed she had approximately 3 to 6 months to live, the deceased still had time to change her Will. A period of 3 to 6 months from mid-October 2020 is between mid-January 2021 to mid-April 2021. It might well be that the deceased wished to wait and see whether the arrangement worked out or in her mind Jennine had done enough to justify receiving half of the net estate. Without qualifying her promise, she may have considered that if she had died very closely after the time that Jennine had arrived, Jennine might not have sought to enforce the promise. On those scenarios (about which I need to make no finding), it would be explicable that the deceased did not mention the promise to anyone including Mr Levido.

As to Mr Yazdani’s submissions regarding the deceased’s association with the cancer unit at the Port Macquarie Base Hospital and her reasons for wishing to benefit the unit, [312] I do not doubt that evidence. It is supported by the terms of the Will, as I observed during submissions. [313] Nonetheless, of itself, that is not a conclusive answer to the plaintiff’s case. The essential submission on the plaintiff’s case is that the deceased’s desire to benefit HCT and Wires was qualified to the extent that she promised half of her net estate to Jennine whilst maintaining HCT and Wires as beneficiaries.

The fact that Nada spent some time living in the deceased’s house with the deceased does not gainsay the fact that the deceased made a specific approach to Jennine in specific terms. [314]

I do not consider that the text message to Ronald gives reason for me to materially alter my finding as to the alleged promise. The text occurs approximately 3.5 weeks prior to the deceased’s telephone conversation with Jennine. The fact that the deceased had a particular testamentary view as of 24 September 2020 does not necessarily gainsay the fact that the deceased may have made (or, as I have found it, did make) a promise to Jennine a number of weeks later.

It may be observed that ultimately, the deceased changed her mind about the particular use of her house that she had contemplated in the text to Ronald. Thus (as Mr Yazdani was at pains to point out), [315] Pamela gives evidence that: [316]

Apropos a similar submission in respect of Glen’s evidence (inconsistency with the Will), I reject the submission that Glen’s evidence should be rejected. The fact that a person does not make provision for another person, in this case a sibling, in a Will does not self-evidently make implausible the fact that the deceased might have discussed the content or proposed content of the Will with that other person.

Concerning the evidence of Jane [317] regarding neither Jennine nor Glen needing “anything” and them being financially well-established, it is consistent with no provision being made for Glen. However, it is not necessarily inconsistent with the alleged promise being made. Whether Jennine needed “anything” or was “financially well-established” or not, is beside the point. The tenor of the promise, as alleged by Jennine, was a quid pro quo for Jennine undertaking to act as the deceased’s carer.

Overall, I am not persuaded that the deceased’s statements regarding her testamentary intentions nor the terms of the Will, decisively count against acceptance of the plaintiff’s claims regarding the alleged promise conversation.

The challenge to Jennine’s evidence was wide-ranging. I have dealt with the evidence bearing upon the contested alleged conversations above and several common challenges to the evidence of Jennine and Glen. I will deal below with the particular evidence regarding the care for the deceased as there were issues raised as to whether there was “real consideration” on the contract claim and detrimental reliance in respect of the estoppel claim. Further, I will deal separately with the evidence bearing upon the impugned transactions below under that particular heading. However, there were other particular aspects of Jennine’s evidence which were challenged and it is convenient to address those at this point.

Mr Maconachie submitted that Jennine was a very impressive witness of truth who had sustained lengthy and at times vigorous cross-examination face on, and made appropriate concessions. [318]

Mr Yazdani submitted that I should reject Jennine’s evidence that the alleged promise conversation took place as she asserts [319] and that I should find that Jennine took from that conversation something that was not actually represented to her, but rather was a reconstruction of what she wished had taken place. [320] He stressed that what she told Glen and Phillip is not corroborative of what the deceased said, but only corroborative of what she took from that conversation. [321]

Mr Yazdani, in later developing this, stated that I did not have to make a specific finding that Jennine was deliberately lying or giving false evidence about the conversation but rather that she was mistaken as to her recollection and indicated that I could find that she had subconsciously reconstructed the conversation in her mind, [322] essentially to believe that the alleged promise had been made.

Mr Yazdani made particular reference [323] to the evidence that I have outlined above of Karen’s recollection of a conversation with the deceased on 20 October 2020. [324]

Mr Yazdani referenced my decision in Shymko v Lach [2022] NSWSC 1096 (Shymko) at [642]. [325] In that case, in addressing the question of reliance upon an alleged promise said to support an estoppel claim, I made the observation that I sensed that the relevant plaintiff, though I did not suggest was deliberately lying or giving false evidence, had nonetheless subconsciously reconstructed her involvement with the deceased into an analysis of reliance. However, this case is significantly different from that. In that case I had found that there was no clear and unequivocal promise to support an estoppel.

Mr Yazdani raised a number of matters which were said to bear upon Jennine’s reliability as a witness. Without attempting to be exhaustive I note the following.

My impression, which I provisionally expressed during submissions, was that there were no devastating blows to the plaintiff’s credibility. [326] The plaintiff’s responses appeared to me to be frank. She accepted occasions when she was incorrect and, as I also expressed during submissions, did not appear to me to be seeking to explain away mistakes or looking for some “out” or exit. [327]

As to the critical alleged promise conversation, the fact that a conversation occurred at all is not disputed. Whilst there is a dispute regarding whether any promise was made, there is no real dispute regarding the context for making the alleged promise. It is undoubtedly the case that the deceased had concerns about how long she would live and how she would be cared for.

All aspects of the alleged promise conversation are explicable in light of that context. The deceased commenced with indicating to Jennine that she did not have long to live, and expressed a period (3 to 6 months) which, certainly on one view, was commensurate with her belief about the timing of her demise. She did not wish to go to hospital. She considered that, in order to avoid hospital, she would need someone to look after her but realised that that was “asking a lot” and in that context proffered some incentive for Jennine to agree, the deceased being mindful that she did not “have any other options”. Whilst there is some evidence that Nada stayed with the deceased for a brief period in late October and November 2020, there was no suggestion that the deceased had asked Nada or any of her other “close friends” to come and care for her in the same vein as that request was made of Jennine. Further, there was no attempt by the deceased to hide the fact that she was making other provision for initially the Cancer Council (later HCT) and Wires.

Generally, except as otherwise qualified in this judgment, I accept Jennine’s evidence. However, having regard to the particular matters that were meticulously raised by Mr Yazdani in respect of Jennine’s evidence, it is appropriate for me to expressly address them.

Jennine in her affidavit stated that she paid for her travel and accommodation expenses from Victoria to Port Macquarie. [328]

Karen gave evidence that on 20 October 2020, whilst she was having coffee with the deceased, the deceased told her: [329]

Nada gave evidence that during her stay in or around early November 2020 with the deceased (whilst Jennine was in hotel quarantine), the deceased told her that she was: [330]

Jennine in her reply affidavit stated, in response to Karen’s evidence: [331]

The deceased’s CBA Smart Access records disclose that she made a payment on 28 December 2020 of $3,000 for an item that is described as “Civil Debt” referable to “Quarantine”. [333]

During cross-examination, Mr Yazdani made particular reference to the above-mentioned bank record and the reply affidavit paragraph [334] and questioned Jennine as follows: [335]

Mr Yazdani referred to aspects of Jennine’s cross‑examination, which were not recorded in her affidavit, in the context of a more general submission that she had reconstructed her evidence. [336] Specifically, he referenced the fact that Jennine accepted that the deceased told her that she would cover (a) her travel and hotel accommodation costs and (b) all of Jennine's expenses whilst she was staying at Port Macquarie. [337]

Two matters may be noted.

First, it is not clear precisely what Mr Yazdani was contending for. To the extent that he was contending that Jennine had omitted a relevant matter in her affidavit, that is true. However, having assessed Jennine’s evidence overall, I do not regard it as being a critical matter that undermines Jennine’s credibility or reliability. The content of affidavits is an interaction between a solicitor and the deponent. Whilst the deponent is self-evidently responsible to some degree for incorrect statements that are included in the affidavit, the mere fact that some particular statement has not been included in an affidavit, does not compel a finding that the deponent’s evidence is unreliable. It is difficult to assess the ramifications of omissions to include material in affidavits unless there is some context around what the discussion or interaction between the solicitor and the deponent has been for choices of topics and content in the affidavit.

Secondly, if under cross-examination a witness reaffirms her core recollections, the fact that parts of the witness’ oral evidence differ from their affidavit and the witness recalls and adds in oral evidence spontaneous detail about the occasions, does not necessarily mean that the Court should reject the spontaneous detail. [338]

It is true that Jennine did not include reference to the conversation with the deceased regarding agreeing to pay for quarantine accommodation costs and travel. In cross-examination, her explanation was that the deceased had informed her of those matters in a later conversation. [339] That much was not disputed and Mr Yazdani did not ask her to detail the so-called later conversation. In any event, on the evidence I have outlined above, led by the defendant, it was not disputed that the deceased had agreed to cover those things. [340]

Jennine’s statement in her initial affidavit that she had paid for her travel and accommodation expenses was incorrect. But she accepted that in the affidavit in reply. Her explanation of having paid for some expenses is understandable. Overall, whilst it demonstrates the Jennine’s memory is not completely perfect, I do not regard it as being a matter of great moment.

On 27 November 2020, shortly after Jennine’s arrival in Port Macquarie, she, the deceased and Karen attended the offices of Mr Levido. Mr Yazdani submitted that “it is telling” (i.e. against the likelihood of the deceased having made the alleged promise) that, at that meeting, Jennine did not raise the topic of the deceased’s Will or of putting into writing any agreement that she suggests she had made with the deceased. [341]

For my part, I regard the alleged failure of Jennine to raise the matter as being of little moment and in any event benign. The context was that she was attending at least relevantly to accept an appointment under the power of attorney, and the appointment of enduring guardian. There is no compelling reason for her to have raised the agreement. She had been in Port Macquarie at that stage for barely 2 weeks. Her evidence, [342] which I accept, is that she trusted the deceased. In light of that trust, it seems to me quite explicable that there was no need for her to raise the issue. Whilst what I have said is enough to address the point, in any event, I consider that it would have been very bold (and some might think it crass) for Jennine to have suggested that right then and there that the deceased put the so-called promise into some formalised agreement.

Mr Yazdani submitted that the reason that Jennine did not do so is because there was no intention of the parties to enter into legal relations. [343] As will be evident below, I reject that submission.

Jennine gave evidence that she returned to Victoria on one occasion during her period of care for the deceased. She stated as follows: [344]

Phillip gave a bit more detail regarding the nature of the dental appointment as follows: [345]

Initially, in cross-examination, Jennine did not recall the exact date she returned to Victoria. [346] By reference to a text message sent from the deceased to Karen on 3 February 2021 [347] which states that Jennine had “decided to go home next Tuesday for an indefinite time”, it was suggested to her by Mr Yazdani that the next Tuesday was 9 February 2021, which she accepted. [348] Jennine initially in cross-examination answered (consistent with her affidavit evidence) that she was in Victoria for approximately 10 days. [349] However, on further probing, she accepted that she (and Phillip) had returned to Port Macquarie towards the end of March and that the deceased had picked her up from the airport on 29 March 2021, and, accordingly, that the period of her sojourn to Victoria was approximately six weeks. [350] It is not entirely clear where Mr Yazdani sourced the date of 29 March 2021 from. Karen’s evidence is that Jennine returned to stay with the deceased sometime in or around 21-27 March 2021. [351]

Exhibit D1 (see below), a text sent by the deceased to Karen on 9 February 2021, confirms the context of the plaintiff going away. The deceased stated “…Jennine originally said she'll probably be home for about 6 weeks but I might summon her earlier, especially if funny things are going to start happening to me…”.

It is not pleaded that Jennine’s leaving of the deceased to return to Victoria was some fundamental breach of contract or some other fundamental matter fatal to Jennine’s claim. The evidence suggests, and I find, that Jennine returned to Victoria to undergo some dental work and that the leaving was effectively on a standby basis.

Mr Yazdani submitted that Jennine was mistaken regarding the length of time during which she went back to Victoria. [352] That is clearly correct. Mr Yazdani suggested to Jennine that her returning to Victoria for an indefinite period of time was inconsistent with the assertion of an oral contract that she receive half of the deceased’s estate on condition that she look after her until she passed away. [353] That was objected to by Mr Maconachie. Following debate on the question in the absence of the witness, Mr Yazdani accepted that no breach of contract had been pleaded or was asserted. He submitted that the question went to whether there was a contract at all. He did not elaborate on that. [354] In subsequent questioning, Jennine denied that the so-called “indefinite return” meant that there was no agreement or that the deceased had not made a clear and unequivocal promise to her that she would receive half of her estate. [355]

Mr Maconachie in his final submissions did not accept that Jennine had left for approximately 6 weeks in February-March 2021. Specifically, he submitted that it is not clearly established that Jennine left on 9 February 2021 and returned on 29 March 2021. [356] Nonetheless, he submitted that the precise period did not really matter. From his perspective, the only real issue was one of credibility and his submission was that it was not affected by the misstatement. [357]

Jennine in cross-examination acknowledged that her affidavit evidence to the effect that a return trip was only 10 days was incorrect but stated “It most probably felt like ten days”. [358] Mr Maconachie submitted that that was an appropriate concession. [359]

Whilst Jennine’s differing evidence regarding the period of her return is, on one view, a material difference, overall I do not think that that significantly weakens her evidence about what the deceased said to her in the critical conversations regarding the initial promises and the authorisation of the monies the subject of the cross-claim.

Mr Yazdani submitted that the text (exhibit D1) that the deceased sent to Karen on 9 February 2021 is inconsistent with Jennine’s evidence. Relevantly, the text stated:

Jennine was questioned about missing Phillip. She agreed that, during her stay in Port Macquarie, she did miss him. [360] She was confronted with the statement in the deceased’s text to Karen (exhibit D1) that the deceased had recorded Jennine as having said “I haven't missed Phillip at all. I know that sounds awful!”. She denied adamantly, both before and after a copy of the text was shown to her, saying those words to the deceased. [361]

This is one of the conundrums on the evidence.

The reference in the text evidence per se to my mind sits somewhat uncomfortably with the much lengthier text interaction between the deceased and Phillip 6 days earlier on 3 February 2021.

The opening words of the text are: [362]

Further down in the text, the deceased states to Phillip: [363]

My impression is that Jennine was truly torn, on the one hand, leaving the deceased for a period of time and, on the other hand, having been away from Phillip.

It is possible that the deceased misheard Jennine. In the scheme of things, I do not regard it as being a vital matter to resolve.

However, even if one assumes for the moment that Lynette had accurately recorded what Jennine said, I do not think that this statement evidences some underlying crucial inconsistency in Jennine’s evidence. Sometimes people will feel and express the sentiment that they miss others. Within a few hours or the passing of a day they might feel differently. Jennine’s evidence is that she did miss Phillip. [364] I have no particular reason to doubt that she did miss him to some degree. I do not think that the evidence bespeaks some underlying inherent unreliability regarding Jennine’s evidence.

Jennine gave evidence that aside from the alleged promise conversation, “I did not ask the deceased about her will and we did not discuss it, although I had assumed that she had made arrangements to change it”. [365]

Mr Yazdani submitted that I should find that the deceased specifically told Jennine about the terms of her Will. [366] In this regard he referred to various pieces of evidence.

As outlined above, Jennine’s affidavit evidence included the following: [367]

Mr Yazdani referred to Nada’s evidence regarding statements by the deceased to Jennine in respect of her Will.

One piece of evidence, mentioned above, was as follows: [368]

The second piece of evidence arose from the conversation that Nada had with the deceased between 8-16 November 2020, being her second visit that month, during which she stated as follows: [369]

Jennine, in particular, denied that after 26 October 2020, prior to her death, the deceased had specifically told her what the terms of her Will were, indicating the deceased “only mentioned” Gene, Freya, and Tanya. [370] Under cross-examination, she accepted that the deceased told her she was giving her “her car because it wasn’t worth much to sell”. [371]

I cannot easily reconcile Nada’s evidence regarding what Lynette said to her about saying to Jennine what was in the Will and Jennine’s evidence that she did not know what was in the Will prior to the deceased’s death other than the deceased having mentioned Gene, Freya, and Tanya, and knowing that she was going to receive the Volkswagen.

Jennine was not confronted with any documentary evidence suggesting that she must have known the totality of the provision made for her in the Will prior to the deceased’s death. She was not cross-examined to the effect that the deceased had at some point, prior to her arrival in Port Macquarie, during her quarantine or before she left Victoria, told her that she would only receive $20,000 and a motor vehicle under the Will.

Mr Yazdani submitted both that I should conclude that (prior to the deceased’s death) Jennine knew the terms of the deceased’s Will and what she was receiving under the Will [372] and that that I should reject Jennine’s evidence that, upon receiving a copy of the deceased’s Will, she was shocked as outlined above. [373] When I pressed him for clarity regarding whether he was contending that I should find that Jennine was lying, he stated that I did not need to make a positive finding of a lie but submitted that there was a reconstruction in her mind as to what she wished took place or that she was possibly mistaken or had forgotten what she had been told. [374]

I am not satisfied that Jennine knew prior to the deceased’s death, that the terms of the Will did not make provision for her for half of her estate.

Another aspect of Mr Yazdani’s case that Jennine knew about the provision made for her under the Will is that she may have seen an electronic copy of it on the deceased’s laptop. [375]

Jane’s evidence is that Lynette kept a soft copy of her Will on her laptop: [376]

Similarly, Nada deposed that: [377]

Whilst Nada does not herself depose that the deceased invited Jennine to read the Will on her laptop, Karen’s evidence is that Nada told her this. Karen also says she saw Jennine using the deceased’s laptop: [378]

Jennine’s affidavit evidence is that: [379]

Mr Yazdani’s cross-examination of Jennine with respect to the electronic Will went as follows:

Mr Yazdani urged me to accept that evidence as showing Jennine knew there was a copy of the Will on the laptop. However, whilst Jennine accepted that she is aware there was an electronic copy of the Will, her response to the question of whether it was on “that laptop”, was “I didn’t see it”. A further difficulty is that Mr Yazdani’s cross-examination did not seek to clarify when she knew that fact. His question was phrased in the present tense, “Are you aware?” In light of this, I do not find that Jennine knew, before the deceased’s death, that there was an electronic version of the deceased’s Will on the laptop. In any event, for the reasons explained below, I do not find that she accessed the laptop to read the Will.

Mr Yazdani, whilst asking me to “unreservedly accept” Karen’s unchallenged evidence “that she recalls Jennine used the laptop on multiple occasions”, [380] did not develop that submission per se.

The limited cross-examination of Jennine regarding her use of the computer and the absence of any cross-examination of Karen on this topic did not facilitate resolution of the issue. For example, Jennine was not asked whether she used the computer on any occasions when Karen was present. There was also no documentary evidence that she used the laptop, for example, showing that she sent or accessed emails from that laptop.

It is unclear whether the occasions that Karen made any such observations about Jennine’s use of the laptop are occasions in which she was at the Villa with the deceased and Jennine, or on occasions after the deceased’s death. Whilst I am prepared to accept Karen’s evidence that she witnessed Jennine “using the laptop”, I have no detail as to the context or what is meant by the so-called “use” or “multiple occasions” of use. Her evidence does not clarify whether the so-called use was before or after the deceased’s death.

The context of Karen’s observations would be important to resolving the matter. For example, it is not clear on what occasions Karen attended the deceased’s house and whether there were any occasions in which she attended in which the deceased was not present.

Karen’s evidence is not necessarily completely at odds with Jennine’s evidence. One distinct possibility is that raised by Jennine in her reply evidence, addressing that what Karen observed was the deceased and Jennine sitting at the kitchen table together using the computer. [381] Perhaps the deceased was showing Jennine some things on the computer and the so-called use of the computer was in that context. In the absence of cross-examination of either Karen or Jennine regarding that, I simply do not know.

To the extent that Mr Yazdani submitted that Jennine was lying about use of the computer, I find myself unable to make a positive finding to that effect. I also do not find that Jennine accessed the Will via the laptop prior to the deceased’s death or otherwise knew the totality of the provision made for her under the Will.

There was evidence led by the deponents, and questions asked in cross-examination, about the respective expenditure made by Jennine and the deceased around the time she was staying with her. This includes the general increased spending of the deceased at that time, certain monetary and other gifts the deceased made to Jennine, and Jennine’s use of the deceased’s card in the last days before the deceased’s death and the immediately following days.

Jennine gave evidence regarding payments during her time spent with the deceased in Port Macquarie as follows: [382]

Helen gave evidence that the deceased mentioned to her in or around late 2020 that “she frequently gave Jennine money to cover her out of pocket expenses and more”. [383]

Karen gave evidence disputing Jennine’s allegation that she had made significant financial contributions to daily living in everyday expenses, stating as follows: [384]

It is not clear precisely how Karen made the above calculations. However, based on the figures in the Court Book drawn from the debit amounts in the deceased’s Smart Access account, it is evident that Karen’s totals for expenditure for January, April and July 2021 include 3 particular gift payments the deceased made to Jennine from her Smart Access account. These being:

Jennine, in cross-examination, accepted that during her stay with the deceased from November 2020 to August 2021, the deceased’s expenditure as set out in her bank statements contained in the Court Book increased substantially. [388]

She acknowledged that she had not annexed or exhibited to her affidavits any documentary evidence that she made any financial contribution or purchases during her stay with the deceased. [389] However she denied that the reason she had done so was because the deceased had covered those expenses [390] and denied that, during her stay with the deceased, the deceased covered all her day-to-day living expenses. [391] I accept her denial. It is highly likely that Jennine made some payments on her own account and highly unlikely that she made no payments covering any of her own day-to-day living expenses. The significance of the matter is hard to gauge. Jennine had provided bank statements for the period 5-17 September 2021 [392] which she noted during cross-examination. [393] Jennine was not, during cross-examination, asked to quantify in any way what expenditure she said she had undertaken from her own funds. Further, she was not probed on what she meant by “significant financial contributions to daily living and everyday expenses” nor on the details of her own purported expenditure. No call was made by Mr Yazdani for the balance of Jennine’s credit card statements.

Nada’s evidence is that between 8 and 16 November 2020, the deceased informed her she had given $10,000 for jewellery to Jennine: [394]

Jane’s evidence is that on 15 February 2021, the deceased had informed her that she “had already gifted $10,000 to Jennine to purchase jewelry as jewelry was Jennine's ‘thing’”. [395]

Pamela’s evidence is that in or around 16 April 2021: [396]

Karen’s evidence is that on or around 25 July 2021: [397]

Jennine in her affidavit in reply [398] specifically responded to Karen’s evidence and Nada’s evidence, agreeing that she did receive gifts of $10,000 from the deceased, stating “I also gave gifts to Lynette. We often bought each other presents”. [399]

Jennine was cross-examined about payments from the deceased, including, in particular, the three payments of $10,000. It is not necessary to recite all of the lengthy cross-examination. The following may be noted.

Jennine acknowledged that she had received a total of $30,000 in payments. [400] When answering questions about the first payment, she said she had not adduced evidence of this in chief because she did not think it was relevant and she “didn’t think I had to explain what Lynette spent money or she gave me as a gift”. [401] In relation to the other two payments, she likewise indicated that she did not think it was necessary. [402]

Specifically, she stated: [403]

Pausing there, her indication that it was not relevant or necessary is certainly, on one view, correct. Whilst the cross-claim seeks recovery of payments made between 3 and 8 September 2021, no claim is made in respect of the three payments of $10,000.

In cross-examination over the first payment, in response to questions as to why the deceased wished to give her $10,000, Jennine stated that the deceased said “I want to give you $10,000, for you”. [404] She indicated that the deceased “would put money into my bank account. I didn’t ask for it”. [405]

In relation to the second payment, Jennine stated: [406]

I accept Jennine’s evidence regarding the payments.

The purpose of the cross-examination was apparently disclosed (in questions which were rejected as to form and not persisted in) to elicit some explanation from Jennine as to why the deceased would have paid her $30,000, when she had previously, on the plaintiff’s evidence, promised Jennine half of her estate after her death. [407] Jennine denied suggestions to the effect that she had not put in her affidavit that she had received $30,000 from the deceased because she did not wish the Court to know that. [408] I accept her evidence.

Jennine acknowledged that the deceased had referred to jewellery as “Jennine’s thing” and that she (Jennine) is a lover of jewellery. However, other than a single parting gift of jewellery in or about July or August in which they had gone out together and it was something that the deceased had picked out, she denied that the deceased had made gifts of jewellery to her. [409] I accept her evidence regarding this.

Lastly, on this topic, Nada’s evidence was, as outlined above, that from many conversations with the deceased, she knew that the deceased had bought Jennine many things including clothes and shoes. [410] Jennine in her reply affidavit had denied that the deceased had brought her clothes and shoes and added that “I bought my own and also some clothes for Lynette when I ordered mine”. [411]

Jennine was cross-examined about alleged gifts of clothes and shoes. She confirmed her affidavit evidence. [412] She was confronted with two documents which were admitted as exhibits D2 and D3.

First, as regards exhibit D2 (a lady modelling a blue patterned top), Jennine acknowledged that, on that one occasion, the deceased had got that top for herself and also ordered a top for Jennine but the deceased had sent it back. [413]

Second, as regards exhibit D3 (the text dated 9 December 2020 referencing a pair of shoes) read with an entry on 11 December 2020 in the deceased’s Smart Access bank statements referencing an item purchased on 9 December 2020 from "Jacqui's Shoe Boutique" for $477.95, [414] Jennine was quizzed about this transaction and even her shoe size. Her evidence is that Lynette’s shoe size was 37 because she has a narrow foot whilst her own (Jennine’s) shoe sizes were 38 or 39 but that it depends because some of the shoes are adjustable by reason of having a Velcro flap. Jennine disputed that the shoes were purchased for both of them, indicating that they were purchased for the deceased, although the deceased had told her that she could have them once she died, which would work because they were adjustable. [415]

I accept Jennine’s evidence regarding the tops and the shoes. It was put to her that she had not set out the explanation regarding those matters in any of her affidavits, to which she asserted that she did not think it was relevant. It seems to me that that was a reasonable assessment and response, at least because the cross-claim does not seek to recover any monies paid by the deceased to the use of Jennine in respect of clothing and shoes.

Jennine was questioned about the payment on 6 September 2021, the day after the deceased had died, at Aldi Stores for $52.75. She indicated that she used the card to purchase items from Aldi “Cause Lynette told me to keep, like, feeding us and whatever with the card”. [416]

Jennine was also questioned about two purchases at Dan Murphys respectively on 7 September 2021 for $112.05 and 8 September 2021 for $99.98. [417]

The first purchase, Jennine indicated, was use of the card because the deceased told her to use it. She could not recall precisely what alcohol was purchased but suggested some of it was wine for the deceased’s memorial or getting things to have for her memorial drinks. She accepted they might have drank some of the alcohol. [418] Mr Yazdani somewhat incredulously pressed Jennine on her answer that the alcohol was purchased on 4 September 2021 for a memorial which did not take place until 13 November. Nonetheless, Jennine confirmed her evidence. [419]

The second purchase was also for alcohol. [420]

Mr Yazdani also questioned a further purchase at Coles on 10 September 2021 for $70.09. Jennine confirmed that she had purchased items from Coles using the deceased’s card and did that “Cause that's what Lynette told me to use the card”. [421]

In the context of a question as to whether Jennine was aware that an attorney cannot use a donor’s funds after the donor has died, she seemingly indicated that she was not sure but did not think twice about using the deceased’s card. [422]

There is no claim in the proceedings regarding recovery of the Aldi Stores, Dan Murphys and Coles purchases. Mr Maconachie objected to certain of the questioning because these items have neither been pleaded nor put forward as part of the defendant’s case. Notwithstanding that Mr Maconachie was undoubtedly correct regarding that, I permitted the questioning on the basis that there was an issue regarding authorisation and I considered that the questioning was within a general purview of that. [423]

Jennine’s evidence was that, just prior to her death, the deceased had told her to use her card. I accept her evidence regarding that. She did that without really giving it second thought. Clearly, she did not turn her mind to the legal niceties of whether an oral authorisation by the deceased just prior to her death would terminate upon her death.

Given that the above-mentioned items are not the subject of any claim in the cross-claim, certainly, on one view, there was no significant reason for the plaintiff to have to address the payments in her affidavit evidence. Mr Maconachie submitted that that was why they were not dealt with. [424] I accept that submission.

On 15 September 2021, 10 days after Lynette’s death, Jennine and Glen had a meeting with Mr Levido. Mr Yazdani submitted that the events at the meeting are inconsistent with the alleged promise.

A difficulty with assessing the events of the meeting is that the evidence regarding it from all the witnesses was in general terms. None of witnesses was able to state specifically who said what, let alone depose to any direct speech account of who said what.

Jennine’s affidavit evidence is as follows: [425]

Mr Levido’s affidavit evidence [426] (on which he was not cross-examined) is as follows:

Glen’s affidavit evidence did not address the meeting.

The following emerged from Jennine’s and Glen’s cross-examination:

Mr Yazdani submitted that I should accept the evidence of Mr Levido “and to the extent that it is inconsistent with either Glen, the plaintiff or indeed any of her witnesses. And to the extent of any inconsistencies your Honour should reject their evidence. There is no reference in the affidavit of Mr Levido to any reference to any promise or agreement having been brought up at that meeting”. [436]

Mr Maconachie, in a quia timet submission, stated that Jennine’s evidence that she did not specifically mention the agreement with the deceased during the meeting with Mr Levido, and that the statement in her affidavit [437] was incorrect, [438] needed to be viewed in context of the evidence as a whole, including the plaintiff’s imperfect understanding of the law of contract. [439] His primary submission was that whether Jennine used the term of art “agreement” is irrelevant and that I ought to be satisfied that a notion close to agreement was discussed with Mr Levido and that Mr Levido’s evidence is confirmatory of that. [440] He submitted that to the extent a concession was made, it was in the context in which Jennine had been in the witness box for the better part of three hours and was a little worn down and the concession was not properly made. [441] He says that even if it was properly made, it goes to her credit and that I should be “thoroughly impressed with her as a witness generally”. [442]

Assessment of the matter is difficult in the context in which Jennine and Glen had little recollection of what was said and Mr Levido, though not cross-examined, did not in his affidavit evidence spell out who said what or specifics about what was said. However, even on Mr Levido’s account, which I accept, his understanding from what was discussed was an assertion (I infer, by Jennine or by Glen in Jennine’s presence) that there was supposed to be additional provision made for Jennine.

Whilst that does not descend to the point of an assertion of a specific agreement, I reject Mr Yazdani’s submission that it is “entirely inconsistent” with a promise or agreement having been made by the deceased. [443]

Mr Maconachie submitted that the Court should be impressed with the evidence of Glen both in terms of demeanour and answering questions “head-on”. He also emphasised the candid nature of his evidence. [444]

Mr Yazdani submitted that I should find that Glen had also reconstructed his evidence. [445] Further, in seeking to understand the nature of the so-called “reconstruction”, Mr Yazdani in response to a question from me, confirmed that he was asserting that Glen’s account of the conversation was “not even remotely like” [446] what had actually occurred. [447]

During cross-examination, Glen held to the material parts of his evidence regarding the conversations. His evidence did not appear to me to be inherently improbable or unlikely. I am satisfied that the conversations Glen deposed to took place substantially as he deposes.

I find that the alleged precursor conversation with Glen most likely occurred in mid-October 2020, within a day or so prior to the deceased’s alleged promise conversation with Jennine. However, I do not consider that Glen’s belief that it occurred in late October 2020 materially affects his reliability as to the essential content of the conversation.

Mr Yazdani raised 5 specific matters by which he sought to persuade the Court that Glen’s evidence should be rejected, which I address below.

First, he submitted that Glen did not have a good relationship with the deceased. I have dealt with this above. To the extent that Mr Yazdani submitted that his evidence was unreliable because of a poor relationship with the deceased, I reject that submission.

Secondly, Mr Yazdani contended that Glen’s evidence is inconsistent with the Will. I reject the submission and have addressed these matters above.

Thirdly, he essentially submitted that the reconstruction occurred because he was “allied with” and “in the camp of” the plaintiff and accordingly “not an independent witness”. [448]

Self admittedly, Glen is very close to Jennine. Frankly, I consider it is unlikely that Glen would reconstruct a conversation so as to embed in his mind statements by the deceased that she had promised to leave half the estate to Jennine, because he was close to her. To be fair to Mr Yazdani, I made an observation like that during submissions so that he could address it. [449] His response was that Glen was not in a position to have such a conversation as he did not have a close relationship with the deceased. I have already dealt with that. Whilst I bear his closeness to Jennine in mind in assessing his evidence, it has not led me to find that he has reconstructed his evidence because of some disposition (unconscious or otherwise) to recall an account of what occurred favourable to Jennine.

Fourthly, Mr Yazdani submitted that I should infer from Glen’s conduct (Mr Yazdani referenced the fact that Glen did “most of the talking” during the meeting with Mr Levido) that it was Glen who put into the mind of Jennine that the terms of the Will were not fair and that Jennine deserved more from the Will. [450] That sounds a little as if Mr Yazdani was submitting some Machiavellian scheme on the part of Glen, though it is not clear to me that Mr Yazdani put it quite in those terms. In any event, Glen, whilst acknowledging that at some point he felt that the Will was unfair, rejected that suggestion. I accept his evidence. I reject the submission that Glen implanted an idea into Jennine’s mind that the deceased had promised her half the estate.

Fifthly, Mr Yazdani submitted that Glen was not an independent witness because he received an interest being $30,000. [451] This references the fact that Jennine, following the deceased’s death, transferred $30,000 from her bank account into Glen's bank account (which she had originally transferred to herself from the deceased’s bank account). [452] She says she did so because of conversations she had with the deceased on the morning of her death. [453] I accept her evidence. It may be noted that, following Jennine speaking with her solicitor and becoming aware that the payments may be disputed, she contacted Glen and requested that he transfer the $30,000 back into her account, which he did. [454] Glen gave evidence consistent with that and was not challenged on it. [455] I accept their evidence.

Further, Jennine has given express evidence, which I accept, that they have agreed that if they are required to repay the funds back to the state that they will do so. [456]

The assertion that Glen had, to use Mr Yazdani’s word, “reconstructed” (whether unconsciously or otherwise) his evidence because he had an interest in retaining the $30,000 was not put to him in cross-examination. In all the above circumstances, I reject the submission that Glen “reconstructed” his evidence because he had an interest in keeping the $30,000 that had been transferred.

Mr Maconachie submitted that Philip was a very straightforward witness in giving his evidence, met Mr Yazdani’s propositions “head-on” and that I should find that he was a witness of truth. [457]

Philip was only cross-examined for a relatively short period of time. He gave his evidence clearly. Broadly, his evidence was consistent with his affidavit evidence. His evidence was not inherently unbelievable. Generally, I accept his evidence. I have dealt elsewhere with a few other aspects of his evidence. Suffice it to say that those other aspects do not cause me to doubt his evidence.

Below I will address a particular aspect of the evidence regarding an event at which Phillip was present but about which he was not cross-examined.

Another plank in Mr Yazdani’s submissions that the evidence of the plaintiff’s witnesses was reconstructed and should not be accepted in relation to the critical contested alleged conversations arose out of some peculiar evidence at a dinner after the deceased’s death.

On 22 September 2021, Karen and her husband Kenneth went out for dinner with Jennine and Phillip at Cafe 66 in Port Macquarie.

Neither Jennine nor Phillip dealt with the event in their evidence in chief.

However, evidence led by Karen from herself and Kenneth was adduced purportedly as bearing upon the cross-claim and in one respect allegedly revealing a plan for Jennine to receive more money from the deceased’s estate.

Below I set out the details regarding it. The evidence, particularly from Kenneth, appears to come desperately close to alleging some form of some cunning scheme or conspiratorial plan on the part of Jennine and Phillip. I say desperately close because that is the tenor of the evidence. However, as I will note below, despite Mr Yazdani spending some time in cross-examination addressing the matter, he did not cross-examine Phillip as to the so-called “plan”.

Karen gave evidence that: [458]

Kenneth gave evidence that: [459]

Karen states that at no point did Jennine tell her that she was promised half of the deceased’s estate. [460] Kenneth gave similar evidence indicating that neither Jennine nor Phillip referred “to an agreement made by Lynette that Jennine would receive fifty percent of her estate”. [461]

In reply to Karen’s evidence, Jennine gave evidence as follows: [462]

In reply to Kennth’s evidence, Jennine gave evidence as follows: [463]

In reply to Karen and Kennth’s evidence, Phillip gave evidence as follows: [464]

Each of Jennine, Karen and Kenneth were cross-examined regarding the events at the dinner. However, whilst Phillip was cross-examined, he was not cross-examined regarding the dinner.

The following emerged during cross-examination:

Kenneth was asked in particular about his evidence of the alleged statement of Phillip. The cross-examination was as follows: [478]

Kenneth denied that he had made up the evidence, asserting that he was under oath, was not a liar and was not perjuring himself. [479]

Mr Yazdani submitted that I should accept the evidence of Karen and Kenneth regarding what was said during the dinner with Jennine and Phillip, in particular that there was no reference at all to any promise or agreement. [480] Further, he submitted that I should accept their evidence that Jennine specifically informed them that she had gifted herself and Glen money from the deceased’s account. [481]

Mr Maconachie urged me not to find that Jennine had stated "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back". However, he accepted that it was more likely than not that there was some mention of the impugned transactions, having regard to the timeline of Mr Levido’s letter to Jennine on 10 September 2021, [482] the meeting on 15 September 2021, and the fact that, on 30 September 2021, Mr Levido provided Mr Brigden with the deceased’s CBA statements showing “potential notional estate transactions”. [483] Specifically, Mr Maconachie submitted that it was unlikely for there to have been such a quick turnaround for the transactions to have been discovered independently unless there had been some mention of them. [484] Mr Maconachie referenced the evidence of Karen that Jennine had said “I may have to give this money back” [485] and submitted that those words did not indicate that Jennine thought the transactions were improper but rather admitted of a possibility that she might have to return them because of some mistake or legal issue. [486]

Mr Maconachie further submitted that Karen had staunchly adhered to recollection of the word “gifted” notwithstanding that her affidavit evidence was couched in terms of “words to the effect of”. He further submitted that Kenneth’s evidence was equally staunch, though different to that of Karen’s and that I would treat their evidence with a degree of caution. [487]

I accept Mr Yazdani’s submission that there was no specific mention made of any agreement with the deceased.

However, on balance, I accept Mr Maconachie’s submissions. I find that the topic of a payment of $60,000 was discussed. Interestingly, there is some tension between the evidence of Karen and Kenneth Dodds in respect of the matter. Karen was confident that the word “gifted” was the precise word used by Jennine rather than transferred. Kenneth had in his affidavit used the word “taken” to describe the payment ("/ have taken $60,000.00 from Lynette's bank account and have transferred $30,000.00 of that to my brother, Glen"). As I have recounted above, Kenneth’s cross-examination emphasised “took” and “taken”.

The issue is not whether the payment had been made but rather whether it had been done without authority or not. Whilst I am prepared to accept that Jennine did not, at least to the hearing of Karen and Kenneth, make a statement that the deceased had told her to make the payment, that fact does not determine whether the payment was authorised or not.

Even though Karen in her affidavit asserts that she recalls feeling “horrified that Jennine had confessed to me that she had taken money from Lynette after Lynette had put her trust in Jennine to help care for her up until her death”, the context of what was occurring does not present strongly as some type of confession in the sense of an admission of guilt, and I do not find that there was any confession of misappropriation of funds or admission of guilt.

My sense of the evidence is that the context was more likely a form of disclosure by Jennine that some transfers had taken place in a context in which she was then aware that the Will was at odds with what she had been promised by the deceased.

If there had been such a guilt-ridden confession by Jennine, it does not sit particularly easily with the correspondence immediately after the dinner. There was correspondence about transactions described as being “potential notional estate transactions”. However, Karen does not appear to have reported back to Mr Levido that Jennine had confessed to misappropriating funds without authority. If she did, it is not recorded in the evidence and certainly not raised by or asserted by Mr Levido in the correspondence immediately after the dinner.

On 24 September 2021, Jennine signed a renunciation of probate. [488] There was a telephone conversation between Mr Brigdon and Mr Levido on that day and further, approximately a week later, on 30 September 2021. The contents of the 24 September 2021 discussions are not disclosed in the evidence. [489] On 7 October 2021, in the concluding paragraph of a letter from Mr Brigden to Mr Levido, the following was stated: [490]

However, other than that, nothing appears to have been asserted between the solicitors, either in terms of oral discussions or correspondence, that there had been a confession by Jennine of unauthorised gifting of money to herself.

It is not a clear to me what Mr Yazdani seeks to take from the evidence of Kenneth regarding his interaction with Phillip, in particular with respect to the statement “Don’t interfere with our plan”. Mr Maconachie submitted that contextually there was nothing in the evidence which would support the conclusion that Phillip made any such statement and the characterisation of Philip as some form of “standover man” is contrary to other evidence of him in the proceedings. [491] As an alternative submission, Mr Maconachie suggested that if the word was “plan” used, it might have been in the context of a plan to challenge the Will.

Frankly, the alleged statement by Phillip is another conundrum in the case. The tenor of the evidence suggests, from Kenneth’s perspective, that as I indicated it was some sort of cunning plot or something sinister.

In any event, as noted, Mr Yazdani did not cross-examine Phillip at all regarding the events of the dinner and even though he cross-examined Jennine regarding the dinner, he did not cross-examine her on her denial regarding that matter.

In those circumstances, I decline to find that, whatever was said as between Kenneth and Phillip, it carried a connotation or bespeaks some untoward conduct on the part of Phillip or some sinister or conspiratorial plan to defraud the deceased.

Mr Yazdani submitted that the evidence relied upon by Jennine is purely oral and that the only corroboration is the assertion that representations were also made to Glen and “to a lesser extent, her husband”. [492]

Mr Yazdani made reference to evidence from the deceased’s friends Pamela, Helen, Jane, Nadia, Karen and Kenneth and from “independent third-party witnesses” being Mr Levido and Ronald, who apart from Karen and Kenneth were not called for cross-examination and their affidavits were read without objection. [493] He emphasised in relation to the deceased’s friends that many of them were in close contact with the deceased right until her passing and to whom she would directly confide in many personal matters. [494]

Mr Yazdani observed that the cross-examination of Karen and Kenneth was limited to the dinner that they had with the plaintiff and her husband on 22 September 2021 at Café 66 in Port Macquarie and submitted that the balance of their evidence should be considered in the same way as the evidence of the deceased’s other friends and acquaintances. [495]

There is no precise submission regarding how their evidence should be treated. However, the observation that their affidavits were read without any objection and that they were not cross-examined, I infer was a submission that their evidence should be accepted.

Broadly speaking, there are significant aspects of the evidence of the defendant’s witnesses which I accept. However, there are some qualifications to that. Naturally, there was not complete uniformity in the evidence of the defendant’s witnesses. Mr Maconachie, for his part, pointed to some contradictions (for example in relation to the deceased’s need for care). [496] Further, there are some other aspects which I comment on below.

Lastly, it is not completely correct to characterise the evidence of the deceased’s friends as being pristinely independent. Whilst I acknowledge that other than Karen and her husband, the defendant’s witnesses were not cross-examined and I expressly do not make any adverse findings regarding those witnesses, there are some indications in some of their evidence which transcended pure factual recounting. This included, in the case of Pamela, veiled comments regarding Jennine’s motives for caring for the deceased, [497] and, in the case of Helen, speculation about the likelihood of the deceased having made the promises to Jennine of half of her estate [498] and comment regarding the generosity of the provision recorded in the deceased’s Will for Jennine. [499]

On the whole, the Project Book does not disclose material which directly bears upon the contested facts in the proceedings.

One page of the book, page 168, which I will reproduce at the end of this judgment, is undated but contains reference to Jennine having arrived in Port Macquarie. The only clear dating on the page is what appears to reference the lodging of a Notice of Death with the NSW Land Registry Services (consequent upon Alan’s death) effected on 25 October 2020.

Mr Yazdani submitted that the notes on that page did not assist the plaintiff, in that there was nothing in respect of the page which was referable to any promise or contract, that it was of no relevance to the matters before the Court, and that I should not make any findings based on that document. [500] Mr Yazdani returned to this point and seemingly raised the possibility that the reference to “- Will part II ?” Might be some reference to the appointment of enduring guardianship. [501]

Mr Maconachie during opening referred to a number of pages in the Project Book [502] and addressed, in particular, page 168. [503] He focused on the reference to “- Will part II ?” He submitted that that writing raised a number of possibilities, including (for example) that the deceased: (a) wanted to have a Will in place because she may pass away at any moment; (b) made the Will she did because Jennine had not at that time performed her end of the bargain that Jennine pleads; (c) was still of two minds as to whether she would make a Will that honoured the promise that she had made; and (d) she was conscious that the Will made on 26 October 2020 did not accord with what she had promised to Jennine. [504] He further submitted that the whole of the Project Book in context revealed that the deceased was contemplating her demise and preparing for it. [505]

It difficult to know what to make of the note. One possibility is that, following Alan’s death, the deceased made a note of certain things that she needed to attend to which became a form of “to do” list. The reference at the top of the page to “done” might well be connected with the diagonal stroke through the page suggestive that the deceased in her own mind had attended to the matters on the page which she needed to complete.

Overall, without some particular contextualisation of the making of the notes on that page, I think drawing inferences bearing upon whether the deceased had made the alleged promise is fraught with danger and I decline to do so.

The enforceability of the alleged testamentary promises has often caused disappointment within families. Sarah Nield writing some 25 years ago made reference to the difficulties that courts in England and other common law jurisdictions have had in addressing such claims using common law and equitable principles under the general law: Sarah Nield, “‘If You Look After Me, I Will Leave You My Estate’: The Enforcement of Testamentary Promises in England and New Zealand” (2000) 20(1) Legal Studies 85 (Nield) at 87. Nield in summary at 85 commented that: [506]

Nield also remarked that: [507]

New Zealand legislators grasped the nettle in relation to such claims over 75 years ago with statutory intervention pursuant to the Law Reform (Testamentary Promises) Act 1949 (NZ): See in particular the discussion of that legislation in Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis) at [1.38] and by Nield.

Indeed, Nield, in suggesting legislative change may be desirable, observed (at 85) that:

However, that suggestion of legislative intervention has not been generally realised and, in particular, not in New South Wales. One may ponder the reasons for that. Likely, one particular explanation is the flexibility afforded under family provision legislation to take into account promises which may fall short of amounting to contractual obligations or other claims enforceable through estoppel principles.

For claims in New South Wales, conventionally, under the general law, a testamentary promise is enforceable (or otherwise) according to ordinary contractual principles and, if a claimant is successful in his or her contention, as promise, he or she receives under the contract a right to an effectual transfer of the relevant asset under the promisor’s Will: Moore v Aubusson [2020] NSWSC 1466 (Moore) per Ward CJ in Eq at [265]. [508]

The existence and terms of an oral contract are to be ascertained as a question of fact. Consideration of surrounding circumstances and post-contractual conduct is permissible when the existence or terms of an oral contract are in issue: King v Adams [2016] NSWSC 1798 per Sackar J at [65]-[69]; Moore at [332].

The requirements are not in doubt. Both counsel cited authorities bearing upon this [509] and the parties framed the issues regarding a testamentary promise accordingly.

Mr Maconachie submitted that, so long as the Court accepts that the conversation alleged by the plaintiff happened, this issue must be answered in the affirmative. He submitted that there were mutual promises by which the deceased made an offer, which Jennine accepted, and thus an agreement. [510]

Mr Yazdani essentially submitted that the Court could not be satisfied that what Jennine stated was said as it was a reconstruction.

Nonetheless, Mr Yazdani expressly acknowledged that if I found that the contents of the alleged promise conversation as set out by Jennine in her first affidavit occurred as she deposed to, it would satisfy the first element of a testamentary contract, that is that there is an agreement. [511]

Having regard to the totality of the evidence, it seems to me that most likely the conversation that the deceased had with Jennine for Jennine to be the deceased’s carer occurred on or about the date that Jennine states, namely 17 or 18 October 2020. That is because within the next few days, each of Dr Long on behalf of Dr Begbie (19 October) and Dr Blanshard (20 October) had signed correspondence seeking to facilitate from the NSW Ministry of Health a compassionate entry into New South Wales for Jennine on the basis that she would be undertaking a carer role for the deceased.

Based on that timing, the context in which the deceased telephoned Jennine included the circumstances that:

Mr Yazdani submitted that it happened in the context in which the deceased was still grieving, her emotions were raw, she was crying and sounded very upset when she was talking to her. [515]

Evidently, as indicated above, I accept the alleged promise conversation occurred as Jennine has depose to. On Mr Yazdani’s analysis, the first element is satisfied.

The deceased’s statement was language of promise. In ordinary parlance, that is “a declaration made, as to another person, with respect to the future, giving assurance that one will do, not do, give, not give, etc., something”. [516]

This is not a case in which there were no express promises, where the enquiry as to whether a contract was formed involves determining the issue objectively from inferences from their conduct. [517]

Mr Maconachie submitted that this issue turns entirely on the Court accepting that the conversation alleged by Jennine happened. He says that the terms were express and clear in that the deceased promised to leave Jennine half of her estate if Jennine would live with the deceased for the rest of the deceased’s life and look after her. He noted that what the deceased’s estate might hold when she died, or what care she might need were not discussed, adding that those matters did not need to be discussed. [518]

Nonetheless, in opening the case, Mr Maconachie addressed the content of the care or in the terms used above “what care she might need”, stating that the context in which the deceased asked the plaintiff to come and live with her was so that she could live out her remaining days in the same fashion as had occurred with Alan, namely the deceased caring for Alan, not in a hospital, nor an institution, but being cared for by family in their home until his death. [519]

Mr Yazdani cited passages in a number of cases elaborating on principles regarding binding intention and certainty of terms, including McBride v Sandland [No 1] (1918) 25 CLR 69 (McBride) per Higgins J at 94; [1918] HCA 32; Horton v Jones (1935) 53 CLR 475 (Horton v Jones) per Starke J at 489; [1935] HCA 7; and Varma v Varma [2010] NSWSC 786 (Varma) per Ward J at [460]; (2010) 6 ASTLR 152. I have considered those cases.

Specifically, Mr Yazdani submitted that the terms of the arrangement must be certain, citing Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 (Ermogenous) per Gaudron, McHugh, Hayne and Callinan JJ at [24].

Mr Yazdani, in a section of the DOS dealing with the testamentary contract, cited the decision of Starke J in Horton v Jones at 489, stating “the High Court held that the agreement in that case was unenforceable on the ground that it was, inter alia, indefinite and void for uncertainty”. [520]

Further, during the hearing, Mr Yazdani raised the issue of vagueness of terms in respect of the contract claim. [521] He submitted that references to "half of my estate" and "look after me" were uncertain. [522]

I reject Mr Yazdani’s submissions. This is not a case in which the alleged promise was subject to unspoken and ill-defined qualifications in relation to what might happen in the future. The issue as to whether the terms were certain focused upon two aspects addressed by Mr Yazdani. He submitted that the expressions “half of my estate” and “look after me” were “on one view” vague and uncertain and not specific. [523]

It does not seem to me that there is any uncertainty about the expression “half my estate”. Indeed the simplicity of it reinforces the clarity of it.

It is wording that has been used by testators in Will documents that have been litigated over without any skerrick of a suggestion that such terminology is vague or uncertain. [524] It is terminology that has been used by Judges in describing the effects of a testamentary instrument. [525] It is consistent with statements made from time to time by testatrixes without any skerrick of a suggestion that the expression is vague. [526] Indeed usually where the expression is used, it is other related wording that creates vagueness rather than the expression “half of my estate”. [527]

A housekeeper or carer arrangement whereby A requests B “to look after” A in return for A leaving B certain provision might or might not be enforceable. However, it is not per se inherently so vague or uncertain as to be unable to afford a consideration for the benefit promise: see e.g. Palmer v Bank of New South Wales (1975) 133 CLR 150; [1975] HCA 51. Ultimately, whether it is enforceable will depend on factual findings and the circumstances of each case.

Horton v Jones involved a case of testamentary promise framed as a contract in which it is alleged that the deceased had promised effectively, that if the appellant promised to make a home for him and to look after him for the rest of his life, he would leave her his “fortune”. By his “fortune”, he then described that he meant his 4/7th interest under his deceased father's Will and he also indicated he would leave her his insurance policy for £12,000. [528] Various defences were raised to the claim, including that the terms were vague and there was a lack of writing. Rich and Dixon JJ were prepared to assume that based on the evidence, it was open to a jury to find that the promise was to act as the deceased's housekeeper and attendant under his reasonable and lawful directions, and that if that was its meaning, it was not too vague or uncertain to afford a consideration for his promise to leave what he called his "fortune" to her. [529]

Starke J noted that it has been recognised that definite proposals to leave property by Will for valuable consideration have been enforced as contracts. [530] The particular issue raised by Starke J was that the proposal to "leave you my fortune" was quite indefinite and, until his death, it was uncertain what his fortune would be, he being free to deal with his property in his lifetime. For the appellant's part she was free to serve or not serve the deceased as she thought fit. His Honour did not regard the evidence as being language of obligation or contract: at 489. Evatt and McTiernan JJ concluded that the terms of the arrangement proved were too uncertain to constitute a contract. [531]

Despite seeming all-encompassing resistance to the plaintiff’s claim, there was no real dispute that the deceased had made some form of request that the plaintiff care for her. Further, there was no particular evidence from any of the deponents and witnesses involved, specifically those called on the part of the defendant, that that the deceased or anyone else made any complaint that they had no idea as to what Jennine had been requested to do in terms of looking after the deceased.

Whilst I accept that there may well be some cases in which the nature of the request is too vague for contractual purposes, I reject the submission that this is one of those cases.

In this regard, it seems to me that what Mr Maconachie stated about the context of the request essentially described what was envisaged in terms of general content of care, namely that Jennine was to come and live with the deceased so that she could live out her remaining days in the same fashion as occurred with Alan, namely the deceased caring for Alan in her home until his death.

Relevantly, Mr Yazdani submitted [532] that there must be real consideration for the agreement, citing Ermogenous per Gaudron, McHugh, Hayne and Callinan JJ at [24].

Mr Maconachie submitted [533] that consideration need not be “valuable” to be valid or effective to form a basis for a contract. It merely needs to be “legally sufficient”, noting that even nominal consideration may be sufficient, citing Silver v Dome Resources NL [2007] NSWSC 455; (2017) 62 ACSR 539 at [135] per Hamilton J, citing Thomas v Thomas (1842) 2 QB 851; 114 ER 851; Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 87.

Mr Maconachie referred to Schaefer v Schuhmann [1972] AC 572 (Schaefer), especially at 583-585, noting that this case differs from the facts of Schaefer because in this case there is no real property involved, and therefore no need for a written memorandum of the agreement. It is not quite clear to me what Mr Maconachie means by that. The deceased’s estate included real property, being the Villa. If he means that no defence regarding lack of writing was raised by the defence, that is correct. The conventional position is that a plaintiff suing on a contract is not obliged to allege in the statement of claim that the statutory requirement for writing has been complied with, rather it is for the defendant to plead and prove relevant non-compliance: Marginson v Potter & Co (1976) 136 CLR 161 per Gibbs and Mason JJ at 168; [1976] HCA 35.

The provision of care services for contractual purposes can constitute consideration: Nield at 96.

The defence, as noted, admitted that the plaintiff lived with and assisted the deceased until her admission to hospital on 1 September 2021. [534]

Jennine gave evidence as follows regarding her care for the deceased: [535]

Karen did not reply to paragraphs 15 and 16 but did dispute paragraph 20 that Jennine was required to shower the deceased or take her to the toilet stating: [536]

Phillip gave evidence regarding Jennine’s care for the deceased as follows: [537]

Karen disputed Phillip’s evidence, stating: [538]

The bounds of Jennine’s stay with the deceased was (subject to the return to Victoria) from 19 November until her death on 5 September 2021. The sojourn to Victoria was for a period of about six weeks. Jennine was mistaken at least in that respect.

In terms of the content of the promise for care, there was limited cross-examination of Jennine as follows: [539]

Despite fairly rigorous cross-examination in respect of many aspects of the plaintiff’s evidence, no particular attempt was made to suggest that the nature of the care which the deceased was seeking was unclear, nor to suggest that Jennine had not appropriately cared for the deceased, at least in the aspects in which she asserted. Phillip was not cross-examined in respect of Jennine’s care for the deceased.

Jennine’s and Phillip’s evidence is not inherently unbelievable. Rather, it is likely that in the months prior to the deceased’s death, she would have required some assistance. Despite Karen’s evidence, I accept Jennine’s and Phillip’s evidence regarding her care for the deceased.

In any event, it is unclear how Karen is in a position to deny Jennine’s evidence regarding it. The fact that Karen had been in attendance on “numerous” occasions in the months leading up to the deceased’s death in which the deceased was able to walk around and take herself to the bathroom and, from her perspective, the deceased “showed no signs of needing assistance with the bathroom or showering”, does not demonstrate that Jennine’s evidence is false or grossly overstated.

Further, there was some evidence given by other deponents in the defendant’s case, particularly Jane, which either supported or was consistent with Jennine giving the deceased appropriate care.

On 15 February 2021, Jane visited the deceased in Port Macquarie. [540] She states that after this visit, she continued to have communication with the deceased via text message as it was too exhausting for the deceased to speak regularly on the telephone. [541]

In or around April 2021, according to Jane, the deceased received news that her cancer had metastasised to her sacrum. She states that this “explained why the deceased was suffering longer painful episodes” and that, after April 2021, the deceased “had a short course of treatment and an increase in pain medications”. [542]

Jane gives evidence that as at 12 June 2021 when she travelled to Port Macquarie to visit the deceased, she was looking frail and had significant “unilateral leg oedema” but was still managing activities of daily living with assistance from Jennine and Phillip [543] (who had at that point travelled to Port Macquarie). During this visit, the deceased informed Jane she still had scope to increase her oral medication if the pain increased. [544]

Jane states regarding 13 June 2021: [545]

Jane also states: [546]

Further, in about July 2021, Pamela informed Jennine “You are doing a great job for your sister”. [547]

Mr Maconachie submitted [548] that Jennine obtained a COVID travel permit, spent two weeks in quarantine in Sydney, moved to Port Macquarie to live with Lynette for “what turned out to be about ten months” (with a 10-day hiatus to attend to personal and medical matters) and attended to domestic care of the increasingly ill and needy Lynette”. [549]

Further, he submitted based on Jennine’s evidence that she undertook washing, cleaning, shopping, cooking, supervising Lynette’s medication and conveying Lynette to appointments and social occasions, [550] Jennine fulfilled her obligation under the agreement.

Mr Maconachie also contrasted the evidence of Karen with the evidence of Jennine and Jane. [551] Jennine for example says that she assisted Lynette with showering and toileting whereas Karen denies that.

Mr Yazdani did not as I understand him put any submission or at least any specific submission that Jennine had failed to appropriately care for the deceased.

It is not necessary for me to assess in great detail each of the criticisms of Mr Maconachie of the conflicting evidence of the defendants.

It is undoubtedly the case, even on the evidence of both Jennine and Phillip, and Jane and Pamela, that the deceased was frail, her condition declined over the period of time that Jennine was there, and that Jennine assisted her appropriately.

The fact that Pamela included a gratuitous comment in her affidavit to the effect that “had I known Jennine was caring for Lynette because she was getting a share of Lynette’s estate I would have viewed things differently” [552] does not particularly undermine the concession as to what had been observed as distinct from Pamela’s personal judgement about Jennine’s motive.

I find that Jennine provided real and relevantly “legally sufficient” consideration in moving to Port Macquarie for the period that she did to take care of the deceased in the form of completing household tasks like the washing, cleaning, shopping, cooking, driving her to appointments, taking her out, and, at some points, showering her and helping her toilet.

Mr Yazdani cited Ermogenous regarding intention to create legal relations. In particular, he noted [24]-[26] per Gaudron, McHugh, Hayne and Callinan JJ. Relevantly at [25], their Honours stated:

The modern approach is to avoid use of presumptions as to whether or not some family arrangements are intended to give rise to legal obligations. [553]

Mr Yazdani also in particular made reference to McBride and Re Gonin [1979] Ch 16 at 32. [554]

Mr Maconachie submitted [555] that regard may be had to subsequent conduct in considering whether the parties intended to enter into a binding agreement, citing Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605; [2015] NSWCA 313 at [118] per Beazley P.

He also cited Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3 at [33] as follows: [556]

Mr Yazdani submitted that there was no intention that the deceased and Jennine would enter into legal relations. [557] Initially he made 2 points.

First, he submitted that Jennine’s conduct was inconsistent with a legally binding arrangement. In this regard, he made reference [558] to Jennine’s evidence that she went to Port Macquarie to be with her sister as “it was the right thing to do and I loved my sister so that was a natural response” and to the fact that she at no point asked the deceased to put the agreement into writing, suggested they see a solicitor to draft up the agreement, nor asked to see a copy of the Will.

Secondly, he referred to the evidence of a number of the defendant’s deponents said to be inconsistent with an intention that the arrangement be legally binding.

Specifically in this regard he referred to:

Mr Yazdani referred to Phillip’s text response to the deceased on 3 February 2021, [563] submitting it confirmed the only reason why Jennine did what she did in going and assisting her sister was for that filial love and because it was the (morally) right thing to do. [564]

Building on that, Mr Yazdani submitted that there was no intention to create legal relations. [565]

Mr Yazdani then made particular reference to certain decisions including Todd v Nichol [1957] SASR 72, especially at 79-80, [566] Moore, especially at [267]-[268], [567] and Wakeling v Ripley (1951) 51 SR (NSW) 183, especially at 186-187. [568] The reference to those decisions was in part to support propositions that in this case the Court would not infer that there was an intention to create legal relations as Jennine did not have to sell her home or sell anything to move from Victoria to New South Wales, she did not stay in New South Wales indefinitely, it was always the case that she would return to her home in Victoria, there was no exchange of letters or other evidence that the deceased made a Will reflecting any such agreement, and there was no “life changing decisions made by the plaintiff in the context of having to give up something material”. [569]

Later in submissions, he made 12 points in this regard (to some degree reiterating points that he had previously made): [570]

Mr Yazdani referred to my decision in Shymko at [614]-[618]: [571]

Mr Maconachie submitted [572] as follows:

He relevantly continued: [573]

Mr Maconachie, in anticipating a submission from Mr Yazdani that Jennine had agreed to care for the deceased only out of filial love and not influenced by any financial promise, made reference to part of Jennine’s cross-examination as follows which I have referenced above, namely: [578]

Mr Maconachie contended that the opening words of the question contained a positive and negative and that it was not clear that the reason why Jennine travelled to Port Macquarie “as soon as she could” was disengaged or uninfluenced by her evidence of the alleged promise. [579] Specifically, by reference to the rule in Browne v Dunn, he submitted: [580]

Mr Maconachie developed this by reference to the remarks of Emmett AJA in Priestley. His Honour stated:

Having regard to the evidence overall, clearly there was some engagement by Mr Yazdani in relation to the reasons as to why Jennine travelled to Port Macquarie. It is not clear to me that Mr Yazdani expressly challenged Jennine as to the role that the alleged promise played in relation to her detrimental reliance claim.

Having said that, it is not clear to me that Mr Yazdani is necessarily precluded by reason of the rule in Browne v Dunn from putting a submission that Jennine was not motivated by the promise but only by filial considerations. I consider the issue of reliance was generally in contest.

Overall, I prefer to deal with the matter on the basis that the tenor of the plaintiff’s evidence is as I have stated above, and sufficient to establish reliance on the promise. I am not persuaded that the alleged promise to receive 50% of the value of the deceased’s residuary estate was immaterial or not a sufficiently contributing cause to Jennine’s conduct or did not make a difference to her reason why she did what she did was in reliance upon the alleged promise.

Despite Mr Yazdani’s numerous points and valiant attempts to persuade me that the promise was not intended to be legally binding, I reject that contention.

The fact that at no stage in a conversation anything is said by one party that conveys to the other that what is being promised is to be legally enforceable is not determinative of the matter. [581]

Jennine’s evidence in chief does not contain any express statement that the reason or a contributing reason as to why she travelled to Port Macquarie is because of the alleged promise to receive 50% of the value of the deceased’s residuary estate. However, that of itself is not conclusive of whether there was an intention to create legal relations.

Objectively, I consider that there was such an intention.

In context, all aspects of the subject matter were very serious issues. The deceased had cancer. She had a need for not only companionship but specific care. She wished to be cared for in her home. The anticipated care was not on any view minimal. She had a number of close friends but had chosen not to approach any of them to assist. The fact that the deceased spoke with Glen in the alleged precursor conversation, which I accept, is suggestive to me that the deceased was conscious that what she was anticipating asking the plaintiff was of no small moment. The alleged precursor conversation is at least consistent with the deceased being mindful of the significance of what she was proposing to ask and attempting to gauge a likely reaction from her sister.

On the evidence which the defendant led regarding the deceased’s testamentary intentions of the beneficiaries regarding her residuary estate (which evidence I accept), it was no small thing for the deceased to make an offer of half of her estate to the plaintiff.

On the plaintiff’s version, which I accept, the deceased raised the prospect of testamentary benefit. What she was proposing was a very significant financial value. Whilst the period of time during which the plaintiff might be required to leave Victoria and care for the deceased was indeterminate, it was not anticipated as being for a minimal period of time but in the order of about 3 to 6 months.

The finding that there was an intention to create legal relations is supported by the words used by the deceased which both invoke terminology of promises and contain recognition that what was being asked for was “a lot” in the context in which the deceased recognised that she had no other options.

It was no minor matter for Jennine to upend her life in Victoria during COVID-19 to go and care for her sister.

The fact that Jennine responded in cross-examination that she only went to Port Macquarie because it was the right thing to do, does not to my mind deny that a promise was made or that it was intended to be legally binding. The fact that Jennine did not request to have the promises documented or to see a copy of the Will is explicable by the fact that she trusted her sister and had no need for documentation. The promise was enough for her.

That is borne out by evidence in which Jennine expected that the deceased would make a Will leaving her half of her estate.

Jennine’s affidavit evidence included the following: [582]

The cross-examination, as noted above, touched upon the alleged promise conversation, [583] a subsequent conversation seemingly fairly immediately after the initial conversation, [584] and her actions thereafter.

Part of that cross-examination included the following: [585]

I accept Jennine’s evidence that she expected that the deceased would make a Will leaving her half of her estate.

Having said that, I also accept that Jennine was motivated in part to agree to what the deceased proposed as Mr Yazdani put it “out of familial sisterly love, mutual love and affection and because it was the right thing to do”. [586]

However, I do not accept that those matters preclude an intention to create legal relations. [587] It does not seem to me that the two are necessarily mutually exclusive. The deceased’s text correspondence with Phillip on 3 February 2021 highlights the deceased’s perception of Jennine’s agonising over the matter of whether to stay in Port Macquarie or go back temporarily to Victoria and the deceased’s own understanding of the significance of what she had asked Jennine to do.

Lastly, I have given anxious consideration to Mr Yazdani’s submissions. The following may be observed in relation to Mr Yazdani’s 12 points.

Whilst there was a very specific focus by Mr Yazdani on what I will describe as “initial” issues as to whether any contractual obligation arose, there was little or no focus in Mr Yazdani’s submissions on whether, if a contractual obligation existed, it had been breached or the extent of damages consequent upon any such breach.

The deceased’s failure prior to her death to make a codicil or new Will leaving Jennine half of her estate as promised constituted a breach of contract. [589]

In light of the findings that I have made above, it seems to me that there was such a breach by the deceased and I so find.

There was some slight debate which I have noted above regarding the value of the estate. Prima facie, the damages are half the value of the deceased’s residuary estate.

Both counsel [590] cited familiar authorities said to deal with promissory estoppel including Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 per Brennan J at 428-429; [1988] HCA 7; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 per Priestly JA at 610; Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106 (Zugic) per Ward CJ in Eq at [272]; Varma at [485]; Slade v Brose [2024] NSWCA 197 (Slade) per Ward P at [203]. (I note that Slade is a proprietary estoppel case).

The issues, in relation to the claim in respect of what they agreed was promissory estoppel, were framed by reference to the following six elements (bearing close connection to Barrett JA’s summary in Van Dyke v Sidhu (CA) at [40] (Basten JA at [1] at Tobias AJA at [148] agreeing)):

Mr Yazdani submitted [591] that a distinction has usually been drawn between arms-length/commercial cases and domestic or family cases when assessing the adequacy of an assurance or the reasonableness of an expectation or assumption, citing for example, DHJPM Pty Limited v Blackthorn Resources Limited (formerly called AIM Resources Limited) (2011) 83 NSWLR 728; [2011] NSWCA 348 at [105] per Handley AJA; Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 at [68] per Lord Walker of Gestingthorpe, cited with approval in, inter alia, Zugic at [277].

As to the requirement for any promise to be clear and unequivocal, Mr Yazdani made further reference [592] to Zugic at [273]-[277].

Mr Yazdani submitted [593] that the detriment that makes a promissory estoppel enforceable is that which the plaintiff would suffer, as a result of her original change of position, if the assumption which induced it was repudiated [594] by the party estopped (i.e., the deceased), as distinct from loss flowing from non-fulfilment of the promise or assurance, citing Dixon J in Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674-675; [1937] HCA 58; Legione v Hateley (1983) 152 CLR 406 at 437 per Mason and Deane JJ; [1983] HCA 11; The Commonwealth v Verwayen (1990) 170 CLR 394 at 415 per Mason CJ, 429 per Brennan J, 445 per Deane J; [1990] HCA 39.

Mr Maconachie cited [595] Slade in which Ward P observed at [203] that a representation or promise is sufficiently clear if it is reasonable for the representee to have interpreted the representation in a particular way, being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely.

Mr Maconachie submitted [596] that:

Mr Yazdani, in submissions, expressly acknowledged that if I found that the contents of the alleged promise conversation as set out by Jennine in her first affidavit occurred as she deposed to, it would satisfy not only the first element of a testamentary contract but also the first element of promissory estoppel. [597]

Despite that, he also submitted that the Court should not be satisfied that there was a clear and unequivocal promise as the words said to be attributed to the deceased were too vague and uncertain to establish to support an estoppel in this instance. [598] Specifically, Mr Yazdani submitted that the expressions “half of my estate” and “look after me” were “on one view” vague and uncertain and not specific. [599]

I propose to act upon Mr Yazdani’s acknowledgement as I have noted above. However, to the extent that it is not right for me to do so and it is necessary for me to address his submissions that the words attributed to the deceased were too vague and uncertain to establish an estoppel, for the reasons that I have outlined above in relation to the contractual claim, I am satisfied that the words were neither too vague nor uncertain to establish a clear and unequivocal promise.

Mr Maconachie submitted [600] by reference to comments of Ward P in Slade at [201] that it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist. It is unconscionability which will be decisive.

It is helpful to set out more fully what the President stated at [199]-[206]:

Mr Maconachie, whilst maintaining that it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist, nonetheless submitted that the Court would be comfortably satisfied that this issue be resolved in the affirmative. [601]

Mr Yazdani contended that the Court should not be satisfied that any particular legal relationship was assumed by the plaintiff and the deceased and, at best, the only relationship that they could conceivably assume was that of beneficiary in the context of the deceased making a Will in the plaintiff’s favour in which she was to receive a pecuniary legacy of $20,000 and a motor vehicle. [602]

Clearly, it is not a necessary requisite for promissory estoppel for the parties to be in an existing legal relationship when the promise is made: Denis S K Ong, Ong on Equity (2011, Federation Press) at 222-223.

I accept it is not necessary for a plaintiff to show that she assumed that a particular legal relationship existed or would exist.

Nonetheless, to the extent that I am incorrect in that and it is necessary to point to some assumption of a legal relationship, it seems to me that Jennine assumed that there was an oral contract [603] by which the deceased had promised to leave Jennine “half of my estate when I die”, the implication being that the deceased would make a Will in which Jennine would be a beneficiary in that sense.

Having regard to the plaintiff’s claim in the statement of claim (which was verified) [604] and the evidence I have outlined above in dealing with intention to create legal relations, it seems to me that the tenor of the plaintiff’s claim is that she was influenced, in a significant or material way, by the alleged promise to receive 50% of the value of the deceased’s residuary estate, such that it was a contributing cause to her conduct or made a difference to her reason why she did what she did. Therefore, she acted in reliance upon the alleged promise.

Phillip was briefly cross-examined on his text correspondence with the deceased on 3 February 2021, in particular, the passage: [605]

The cross-examination was as follows: [606]

Ultimately, whether a promise is intended to be legally binding depends upon an assessment of the relevant facts. Thus, whether any, and if so what, representation has been made is to be judged “objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee”. [607]

In the scheme of cases of detrimental reliance, the arrangement was as not as life changing and dramatic as some but not as unremarkable as others. It seems to me that the arrangement was sufficiently significant to give rise to detrimental reliance. In the midst of a pandemic, the plaintiff left her husband for a period of time to go interstate, quarantine for a period of 14 days and then commence care for a sick sibling for a period of time which was necessarily uncertain but based on the discussion might well be a period of between about 3 to 6 months. [608]

Mr Maconachie submitted: [609]

Mr Yazdani asserted that the Court should not be satisfied that there was any reasonable reliance on the part of the plaintiff. [611] He described it as being artificial and unrealistic. [612] He made a number of points.

First, he submitted that it was simply implausible that the deceased did not discuss the terms of her Will with the plaintiff. [613]

Secondly, he referenced what he said was corroborated evidence from independent witnesses that the deceased specifically did inform the plaintiff what she was to receive under the Will, and the plaintiff was aware of the contents. [614]

Thirdly, he submitted that none of the deceased’s closest friends ever recall that the deceased told them that the plaintiff was to receive half of the residuary estate or, indeed, anything more than the pecuniary legacy of $20,000 and the car. In this regard, he referenced evidence from Pamela, Helen and Nada. [615]

Fourthly, he noted that the plaintiff accepted that she was aware that the deceased had made a Will with Mr Levido, and she (the plaintiff) did not tell Mr Levido about any promise or agreement. [616]

Fifthly, during the 22 September 2021 dinner, there was no reference at all of any promise or agreement. [617]

Lastly, he submitted that the plaintiff accepted during cross-examination, that the only reason why she decided to move to Port Macquarie to look after the deceased was because it was the right thing to do. [618]

The plaintiff’s pleaded estoppel claim is that she relied upon the deceased’s representation that she would receive “50%” of the value of the deceased’s residuary estate upon the deceased’s death and undertook certain acts including travelling to New South Wales, moving into the deceased’s home, living with her and caring for her. [619]

I reject Mr Yazdani’s submission that Jennine’s alleged reliance was “artificial and unrealistic” as distinct from being reasonable. It is not clear to me what the words “artificial and unrealistic” are intended to convey. Clearly they cannot attach to what Jennine actually did in leaving Phillip and her life in Victoria, quarantining in Sydney and caring for the deceased.

Mr Yazdani’s first submission about implausibility of discussion of the terms of the deceased’s Will is answered by the plaintiff’s version of the alleged promise conversation she had with the deceased. It is quite clear that the deceased did tell the plaintiff about certain aspects of her Will. The fact that the deceased did not disclose to her friends that she had promised the plaintiff half of her residuary estate is, I accept, a conundrum. However it is not decisive against the fact that the promise was made (I accept it was made), and whether Jennine acted reasonably in her reliance. I find that she did. Mr Yazdani’s other submissions have in a sense already been dealt with by me above.

Mr Yazdani stressed that even if the Court were minded to accept that the plaintiff’s reliance on the promise was reasonable (which is denied), the Court should not be satisfied that the deceased knew or intended that the plaintiff would act in a particular way that she alleges in purported reliance upon her statement. [620]

Mr Maconachie submitted that this issue must be answered in the affirmative. He contended that: [621]

I am satisfied that the deceased did know and intend that Jennine would act in reliance upon the promise. The alleged precursor conversation that the deceased had with Glen (which I accept occurred) to my mind was a type of testing of the waters by the deceased in the sense of gauging Jennine’s likely reaction to such a significant request. What in fact occurred in the sense of Jennine leaving Phillip in Victoria, quarantining in Sydney, arriving in Port Macquarie and looking after the deceased, was precisely what the deceased had requested Jennine to do. It could hardly be said that the deceased did not know or intend objectively (and subjectively) that Jennine was relying upon the promise. It was made in a context, as I have indicated above, in which the deceased in her own words requested care premised on a promise of receipt of “half of my estate when I die”, expressly knowing “it’s asking a lot but I don’t have any other options”.

I addressed principles regarding detrimental reliance in Stojanovski v Stoyanovski [2024] NSWSC 1582 (Stojanovski) at [282]-[289], albeit in a context of proprietary estoppel by encouragement.

Non-monetary detriment is sufficient to support an estoppel, whether it be “the abandonment of an advantageous lifestyle, the provision of voluntary services, or both.” [625]

Mr Maconachie in the POS submitted that there was relevant detriment, [626] explaining that: [627]

Later in the POS, he stated: [628]

Mr Yazdani disputed that there was any relevant detriment on the part of Jennine. [631]

First, he submitted there was no financial or material detriment in Jennine travelling to Victoria to look after her sister as her travel and accommodation costs were covered by the deceased. [632]

Secondly, he stressed that the deceased, during the course of the plaintiff's stay with the deceased, made a number of gifts of large amounts of cash, at least to the sum of $30,000. Pausing there, the reference to $30,000 I take to be the payments from the deceased’s Smart Access account on 12 January 2021, 26 April 2021 and 19 July 2021. [633] There is evidence from Nada that by 16 November 2020, the deceased had told her that she had given Jennine $10,000 for jewellery. If that is the case, then the “large” cash payments were in total $40,000. However, there is no account statements of the deceased in the Court Book demonstrating a sum of $10,000 coming out of the deceased’s accounts prior to 16 November 2020. Further, Mr Yazdani did not specifically reference a sum of $40,000 as having been received in cash by Jennine.

Specifically, he submitted that I should find, contrary to the plaintiff's evidence, that the deceased did make gifts of clothes and shoes to the plaintiff and that the deceased covered all of the plaintiff's expenses during her stay with the deceased. [634]

Thirdly, he submitted that there was no life changing decision in reliance upon any representation nor any substantial material disadvantage to the plaintiff. [635] He emphasised that her husband travelled to Port Macquarie on occasions and that she travelled back to Victoria for six weeks. He added, although I’m not sure that there was express evidence from the plaintiff about this (as distinct from Phillip) [636] , “the plaintiff says that she missed Christmases, family lunches and the like”, submitting that that was not material disadvantage. [637]

Mr Yazdani referenced my decision in Shymko at [659], [638] in which I had found that in that case there was no life changing decision in reliance upon the assumption (Sidhu v Van Dyke (HC) at [84]; Maxwell v Maxwell [2022] NSWSC 1028 at [252] per Ward P), nor any substantial material disadvantage: Ashton v Pratt (CA) at [147].

The pleaded reliance referenced the fact that the plaintiff was deprived of her ability to:

Phillip in his evidence made reference to what he considered Jennine and he had foregone.

One aspect was financial. Phillip gave evidence which I have referred to above that he and Jennine discussed whether she should apply for the Commonwealth Carers' Payment, but that: [641]

Phillip was cross-examined about this. He denied that assertion that he and Jennine did not apply for the “Commonwealth carers payment” because their financial position was such that they would not qualify for the payment. Rather, he says they “did not get to that stage”. [642] I accept his evidence. However, there was no specific evidence as to the value of the Commonwealth Carers' Payment.

Another aspect was emotional and relational. Jennine gave evidence regarding the effect on her of the period of her care for the deceased, which was as follows: [643]

Phillip gave evidence on which he was not cross-examined and in which he outlined some difficulties which Jennine faced during the period of quarantine and the effect of the care on Jennine and their relationship: [644]

Phillip gave evidence, in which he was not challenged, that on the occasions he visited and he went out with the deceased and Jennine for coffee or restaurants, that he covered the tab for all of them. [645] I accept his evidence.

On balance, I am satisfied that there was detrimental reliance by Jennine on the promise.

Mr Maconachie submitted that even if the deceased had not breached the contract in light of the care carried out for the deceased by Jennine and other aspects of her detrimental reliance upon the deceased’s promise, it was unconscionable for the deceased to obtain the benefit of Jennine’s services without keeping her promise and that “Equity would respond and hold Lynette’s estate to her promise”. [646]

Mr Maconachie in this part of his POS stated “the extent of Lynette’s mala fides will be examined in detail below”. [647]

Mr Maconachie returned to the issue later in strident terms, contending:

Mr Yazdani simply contended that the Court should find that the deceased did not act unconscionably in the matter, especially as the Court should seriously doubt that the deceased knew or intended that the plaintiff would somehow increase her involvement with the deceased out of some prospect of monetary reward rather than, as the plaintiff accepted, that she did it because it was the right thing to do. [649]

Neither counsel made reference in opening submissions or during most of the hearing to the question of countervailing benefits. Thus, at the end of final submissions, I raised the question as to whether the fact that the plaintiff had been able to spend some time with her sister and received some financial benefit during the period might preclude a finding that it was unconscionable for the deceased to resile from representation of a benefit of half of the estate. [650]

Mr Maconachie submitted that I could not make that finding. He stated that whilst Mr Yazdani had stressed material benefit, the plaintiff’s time with her sister involved watching her sister in decline, including having falls, helping her sister with showering and toileting, and going through the same confronting experience that the deceased had gone through with Alan, which at moments must have been appalling, but as sisters rather than as life partners. [651] He emphasised that I could not look at detriment in terms of dollars and cents, clothes and shoes, but I had to look at the human cost of the toll that the plaintiff endured which gave rise to an enormous burden and not one which could properly be considered as having been compensated for, otherwise than by reference to the bargain that he submitted that the sisters had made. [652]

Mr Yazdani submitted that no unconscionability arose in a context where the monetary gifts of at least $30,000 which the plaintiff received during the course of her stay with the deceased were “in thanks, gratification, or in consideration of what she was doing looking after her” referencing Shymko at [659]. [653]

I addressed principles regarding detrimental reliance in Stojanovski at [282]-[293]. The party alleging the estoppel has the onus to establish unconscionability: see Stojanovski at [486] citing Steria Ltd v Hutchison [2006] EWCA Civ 1551 at [129] per Neuberger LJ (as his Lordship then was), cited approvingly in Sidhu v Van Dyke (HC) at [59]. Thus, regardless of whether or not one considers countervailing benefits to be more relevant to question of the unconscionability of departure from the promise than to the question of detrimental reliance, the onus of accounting for countervailing benefits must be on the person raising the estoppel.

The authors of Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) (MGL), in addressing relief in relation to promissory estoppel state at “[17-285] Minimum equity or more?” (omitting footnotes):

In “Almost 25 years on: some reflections on Waltons v Maher” (2012) 6 Journal of Equity 131, Michael Byran concluded at 142 (omitting footnotes):

In “Unscrambling ‘detriment’ — unjust enrichment, mistaken payments, and estoppel” (2014) 38(3) Australian Bar Review 269, Lee Aitken in essaying the then state of the law concluded at 281-282 (omitting footnotes):

The authors of Michael Evans, Theresa Power & Joseph Power, Equity and Trusts (5th ed, 2024, LexisNexis) at [18.63] in a passage which bears a marked similarity in wording to the above-mentioned passage from MGL, state (omitting footnotes):

In Zugic, Ward CJ in Eq stated:

I have reflected upon the plaintiff’s evidence that the deceased did not proffer any particular reason for making the payments to the plaintiff totalling $30,000 other than because the deceased stated “I want to.” I accept Jennine’s evidence. Even on Mr Yazdani’s submissions, the deceased was a selfless and compassionate woman. [654]

Nonetheless, I accept that the payments are significant. I have given anxious consideration as to the issue of countervailing benefits. I have also given anxious consideration to the detriment suffered by the plaintiff. The value of one half of the residuary estate is significant. As indicated by Ward CJ in Eq in Zugic “any prima facie entitlement is to be framed by reference to the assumed or expected state of affairs but also that, in assessing the relief to be granted, proportionality of the remedy to the prejudice or detriment is a relevant consideration”.

On balance, I confess that I am unpersuaded that the minimum equity appropriate to do justice to the claim is to enforce the promise according to its terms.

No submissions were made by or on behalf of the plaintiff in respect of what would constitute the minimum equity and be a proportionately just amount to assuage the conscience of the deceased, in the event that I were to conclude (which I do) that I am unpersuaded that the minimum equity required is to enforce the promise according to its terms.

Having regard to the findings that I have made in relation to the attempt that was made by the plaintiff at a testamentary contract case, there is no need for me to further ponder this.

Mr Yazdani submitted [655] that an action for money had and received is applicable wherever the plaintiff has received the monies which in justice and equity belongs to the defendant as executrix of the deceased’s estate, under circumstances which render the receipt of it a receipt by the plaintiff to the use of the defendant, citing Juul v Northey [2010] NSWCA 211 at [216] per McColl JA (Basten at [251] and Campbell JJA at [260] agreeing). It applies, he says, as between principal and agent, [656] citing Coshott Family Pty Ltd v Lyons (2022) 110 NSWLR 44; [2022] NSWCA 216 at [27], Kirk JA (Meagher JA at [1] and Griffiths AJA at [61] agreeing). He noted that an action for money had and received is only maintainable against a party who actually received the monies (here, the plaintiff). [657]

Mr Yazdani contended that the plaintiff did not handle the deceased’s money as a mere bailee for the use and benefit of the deceased – rather, she personally received the monies for her own use and benefit. [658]

In Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67, Leeming JA stated at [22]-[23]:

There is no dispute that, between 3 and 8 September 2021 (inclusive), the plaintiff transferred a total of $81,799 from the deceased’s CBA number [XXX] to herself. The question is whether that transfer was done with the authorisation or with the fully informed consent of the deceased and, accordingly, whether the continued retention by the plaintiff of that sum is unjust. [660]

Following the fall on 2 September 2021, the deceased was admitted to Wauchope Hospital. In the following days, 10 payments were made from the deceased’s Smart Access account which are the subject of the cross-claim. They are as follows: [661]

Jennine gave evidence addressing these claims as follows: [662]

Jennine was cross-examined about the expenses, initially by reference to the enduring power of attorney. Jennine understood that the crossing out of what is described as “Additional powers” which separately provide power for the attorney to “give reasonable gifts”, “conferred benefits on the attorney to meet his/her reasonable living and medical expenses” and to “conferred benefits on the following person/s to make them reasonable living in medical expenses” [668] meant that she did not have those powers. [669]

The following emerged from Jennine’s cross-examination on these payments:

Mr Yazdani put to Jennine, who agreed, that she understood that the $20,000 “was in consideration for your services rendered for Lynette during your stay with Lynette”. [681] Mr Maconachie in a quia timet submission made reference to this indicating that I would not conclude that Jennine had in some way bargained away her rights as distinct from making some sort of more general recognition that a promise of 50% of the estate had been earlier made. [682] However, Mr Yazdani did not make reference to it and did not, as I understand it, contend as Mr Maconachie had anticipated.

Mr Yazdani submitted that there is no evidence that the deceased, at any point in time, authorised or gave her fully informed consent to the plaintiff to withdraw such large sums of money from her account and accordingly the plaintiff is obliged to pay back the sum claimed and interest to the estate. [683]

Mr Yazdani submitted as follows: [684]

Mr Yazdani also made reference to the events of the dinner on 22 September 2021 where the plaintiff at some point started crying and said words to the effect "I have gifted myself and Glen money from Lynette's account and now I may have to give this money back. I don't want to have to go to court". He contended that that was an acknowledgement by the plaintiff that there was no express authorisation or consent from the deceased to transfer the funds. [685]

Lastly, Mr Yazdani submitted that there is no independent corroboration by anyone of the authorisation having been given. [686]

Mr Maconachie in opening submitted that with respect to the first two impugned transactions being withdrawals of $400 on each of 3 and 4 September 2021, the deceased’s bank statements clearly show these were withdrawn from an ATM in Wauchope. [687] He submitted that that was objective evidence of authorisation, the withdrawals occurring in the same town at which the deceased was in hospital and could only have occurred by the deceased providing Jennine with her bank card and PIN. [688]

Mr Maconachie submitted that I was bound to accept that the transactions were authorised based on Jennine’s evidence because (he says) Mr Yazdani did not squarely put to Jennine that the deceased did not authorise the transactions as distinct from suggesting that it was inappropriate for Jennine to take the monies in the context of being the deceased’s attorney. [689]

I reject Mr Maconachie’s submission that I am in some way bound to accept the evidence of Jennine on the basis that alleged lack of authorisation was not squarely put to her.

It seems to me that the issue regarding authorisation for the transactions is evident on the pleadings. Without going into an excursus on the rule in Browne v Dunn, in part it involves giving a witness a fair opportunity to explain their conduct. It seems to me that the tenor of the questioning gave Jennine a fair opportunity to explain the transactions. Her explanation is that Lynette had expressly authorised her to do it.

Having stated the above, and accepting that Mr Yazdani was not precluded from challenging Jennine’s evidence, I accept Jennine’s evidence in relation to her discussions with the deceased.

There is no evidence that the deceased had, prior to 3 September 2021, given Jennine her PIN for her CBA account. There is no particular evidence that the deceased had recorded her PIN in some location which could have been readily discovered or accessed by Jennine prior to 3 September 2021. Jennine’s affidavit does not expressly state that the deceased gave to Jennine the deceased’s PIN. Her evidence is as follows: [690]

That evidence, which I accept, gives express authority for the withdrawal of the $400 on 4 September 2021 and is consistent with the deceased having either previously authorised the prior withdrawal, or then ratifying authority for the withdrawal. There is no suggestion in the conversation that the deceased challenged Jennine in some way as to how she had obtained the deceased’s PIN. The conversation is consistent with the deceased having informed Jennine of her PIN. Further, Jennine was not challenged in cross-examination to the effect that she had improperly discovered or accessed the deceased’s PIN without her knowledge.

In that respect, as to Mr Maconachie’s submission that the withdrawals in Wauchope were authorised, I accept that submission.

There is some force in Mr Maconachie’s submission that the challenge by Mr Yazdani to Jennine regarding the transactions was by reference to the power of attorney.

The fact that a person who undertakes transactions by transferring or withdrawing funds from another’s bank account is an attorney of the other under a formal power of attorney does not mean that the transactions may only be authorised by reference to the terms of the power of attorney. The transactions may be separately expressly authorised by the other person: see e.g. Dulhunty v Dewhirst [2005] NSWSC 350.

Here, Mr Maconachie contends, and I accept, that the transactions were undertaken on the deceased’s express oral instructions. [691]

Concerning the deceased’s condition (i.e. the second submission), Mr Yazdani contended that it was not necessary for me to make a positive finding as to the deceased’s mental capacity. Rather, he submits that, having regard to her physical state and in circumstances where she was under medication and dying, even if authorisation may have been given, it does not constitute fully informed consent. [692]

There was no formal pleading in the cross-claim that the deceased was not in a state to give a fully informed consent. Nor was there any reply to the defences to the cross-claim (which met the claim of lack of authority with the pleading that the transactions were undertaken at the express direction of the deceased), [693] that even if authority was purportedly given it was not an effective authority because the deceased was unable to give a fully informed authority or consent because of her physical or mental state.

For that reason alone, I do not consider that it is open to the defendant to raise an issue regarding the physical or mental state of the deceased in some way vitiating an apparent consent.

However, if I be wrong on that and it is open to the defendant to raise the issue, then I reject it on the evidence.

The submission is somewhat undermined by evidence led on the defendant’s side to which Mr Maconachie made reference [694] from Kenneth that “the deceased’s mental condition did not weaken and she continued to be of strong disposition”. [695] Mr Maconachie also made reference to other evidence of the defendant that the deceased was compos mentis right up until death, referring to Nada’s evidence at CB 99[4] and Karen’s evidence at CB 106. I confess those last two references do not appear to support his contention. Nonetheless, there was no express evidence from any deponent on the part of the defendant that the deceased was lacking capacity during the period 3-8 September 2021. Nor did, subject to one question regarding the deceased’s recall of the plaintiff’s bank account details, did Mr Yazdani cross-examine the plaintiff to the effect that the deceased lacked capacity because of her mental physical condition.

Further, Mr Yazdani accepted that there are no medical or hospital records which indicated one way or another whether the deceased realised that on or about 5 September 2021 that she was in extremis, [696] and further, whilst she was in a palliative care unit, there were no materials indicating what actual medications she was receiving at the time. [697]

The determination of the issue of whether Jennine is obliged to pay the money back is really consequent upon and foreclosed by the findings that I have made above.

In light of my findings that the sums were withdrawn by authorisation, I find there is no obligation for Jennine to pay those monies back.

I have determined that the plaintiff has established her claim for a testamentary contract and that the deceased relevantly authorised the plaintiff to access her bank account such that the withdrawals the subject of the counter-claim are not liable to be repaid by the plaintiff.

The defendant did not seek judicial advice in relation to the defence of the proceedings and prosecution of the cross-claim. Mr Yazdani confirmed that Karen is proceeding on the basis that in the event that Jennine is successful, the half share of the residuary estate that Jennine claims is not to be burdened by any deduction for legal costs. [698]

I direct the parties to bring in short minutes of order to give effect to these reasons for judgment including addressing the cost of the proceedings.