McLennan v McLennan

1. [1]

   This is a family property dispute concerning provisions made by the plaintiff in favour of his son, the first defendant. The provisions were made for estate planning purposes by the plaintiff and his late wife, but alignments within the family have changed and the plaintiff now wishes to recall them. Without intending any disrespect, I will follow the same approach which has been followed by the parties, and refer to the family members by their given names.

2. [2]

   The plaintiff is Malcom John McLennan (“John”). He is 86 years old. For almost 60 years he was married to Susan Karen Jeannine McLennan (“Karen”). She died in 2022.

3. [3]

   John and Karen had two children. The elder is Ruskin Dudley McLennan (“Ruskin”). The younger is Susannah Larissa McLennan (“Susannah”). Ruskin is married to Jodie Elizabeth Ryan (“Jodie”). They have two children. Susannah has a son, Rory McLennan (“Rory”) from a previous relationship.

4. [4]

   Over the course of their marriage, John and Karen were successful in building up a substantial asset portfolio, largely in the form of property and shares. Some of these assets were acquired in their own personal names, but others were acquired through family companies using trust structures.

5. [5]

   Three trusts established by John and Karen come into this judgment. Two of them are discretionary trusts for the benefit of the McLennan family. In each case the trustee is a company incorporated under the instructions of, and originally controlled by, John and Karen. The companies are named Convulon Pty Limited (“Convulon”) and Lakshmi Pty Limited (“Lakshmi”).

6. [6]

   Both of the discretionary trusts were named the “McLennan Family Trust” in their trust deeds. In the evidence they are sometimes referred to (incorrectly, it seems) as a single trust. Sometimes they are referred to as “No 1” and “No 2”. I will refer to them as the “Convulon Trust” and the “Lakshmi Trust” respectively.

7. [7]

   Both of the discretionary trusts were established as vehicles for holding commercial property for investment purposes. Lakshmi’s holding consists of a property at Manns Road, Gosford. Convulon’s holding is also in Gosford, at West Street. Both holdings are valued in the millions of dollars.

8. [8]

   The third relevant trust is a self-managed superannuation fund (“SMSF”) established under the instructions of John and Karen in 1993. The trustee was (and, until recently, remained) McLennan Holdings Pty Limited (“MHPL”). That company was likewise owned and controlled by John and Karen when the trust was established. It had actually been incorporated in 1970, well before the establishment of the SMSF, but its prior activities are not relevant for the purposes of this judgment.

9. [9]

   For many years, John and Karen lived on the Central Coast of New South Wales. In 2000 they bought (as joint tenants) a residential property in Bombi Road, MacMasters Beach, as their home (although, as a result of extensive renovations, there was a period of several years during which they did not live at Bombi Road, but at another property which they owned nearby).

10. [10]

    In 2010, Ruskin was appointed by his parents as an additional director of Lakshmi, Convulon, and MHPL. This was done so that he could help them with the management and administration of the assets of the three trusts. From about 2013 onwards, Ruskin (who was then living in Sydney, but visited his parents regularly) was also given authority to operate his parents’ personal bank accounts.

11. [11]

    Susannah had previously been involved in managing the trusts but by 2007 this had ceased. Thereafter she was living at Bellingen on the North Coast of New South Wales, but she remained in regular contact with her parents.

12. [12]

    In 2014, John and Karen made new wills. At the same time as the wills were made, Ruskin was given enduring powers of attorney and guardianship by each of his parents.

13. [13]

    The new wills mirrored each other. The effect was that when the first of John or Karen died, his or her assets were to pass to the survivor. After the survivor’s death, the combined assets were to pass, or be held on trust, in accordance with terms which were the same in each will.

14. [14]

    I describe the provisions in the mirror wills in more detail below. For present purposes it is enough to say that they placed Ruskin in a dominant position. He was to receive the matrimonial home (the Bombi Road property, or any replacement) and the shares in Convulon, Lakshmi and MHPL. Susannah was to receive a legacy of $300,000 and an interest as beneficiary in a testamentary trust containing assets of $1 million. The remaining assets were to be the subject of a testamentary trust in favour of the McLennans’ grandchildren (Susannah’s son Rory and Ruskin’s two daughters). Ruskin was to be the trustee of both testamentary trusts.

15. [15]

    As already noted, personal relations between Susannah and her parents were good. But according to Ruskin, Susannah had in the past had problems with alcohol and drugs, and her parents believed that she might dissipate the family assets. They were also, according to Ruskin, concerned that she might try to interfere with any testamentary dispositions they might make to prevent such dissipation.

16. [16]

    A few months after making their new wills, John and Karen took a further step in favour of Ruskin. They transferred their shares in Convulon and Lakshmi to him outright. This gave him effective management control over the Convulon and Lakshmi Trusts. They also resigned as directors of the two companies. Thereafter Ruskin ran them as his own, although it seems that, directly or indirectly, some at least of the income was used for McLennan family purposes, including Rory’s education.

17. [17]

    In 2020 John and Karen made new wills which made some adjustments to the testamentary scheme established by their 2014 wills. Again, the 2020 wills were in mirror form. Ruskin was to continue to receive the Bombi Road property (or any replacement matrimonial home) and the shares in MHPL. The immediate legacy in favour of Susannah was increased to $1 million. The remainder of the estate (apart from 10%, which was to go to Ruskin) was made the subject of testamentary trusts in favour of Susannah (40%), Rory (30%) and Ruskin’s daughters (20%), to be administered by Ruskin.

18. [18]

    These changes to John and Karen’s testamentary plans form the background to the two provisions made in favour of Ruskin which are in issue in these proceedings.

19. [19]

    The first of these provisions affected the Lakshmi Trust. Although ownership and control of Lakshmi as a corporate entity had been transferred irrevocably to Ruskin in 2014, the trust deed, as is usual, contained provision for an Appointor who had the power to remove and replace the trustee of the Trust. Under the terms of the original deed, the Appointor was John, and after his death, Karen, and this had not changed in 2014.

20. [20]

    The change made in 2020 involved the execution of two deeds. One was a deed amending the terms of the trust deed so as to provide for the appointor from time to time to be able to nominate someone else as appointor. The second deed provided for John, as the existing appointor, to nominate Ruskin as the new appointor of the Trust. For practical purposes this closed off the possibility that Ruskin’s control over the Trust could be disturbed in future (there was no need for any equivalent in the Convulon Trust, because under the terms of the Convulon Trust Deed, the appointor was Convulon itself).

21. [21]

    The second provision in Ruskin’s favour concerned the Bombi Road property. Shortly after the execution of the new wills, the property was transferred to Ruskin as an outright gift, thus anticipating the gift in the wills. In return, Ruskin entered into what was described as a “life tenancy” with his parents whereby they were to be entitled to live in the property, rent-free, for the rest of their lives.

22. [22]

    Ruskin continued to help his parents with the management of the SMSF and their personal affairs until Karen died in 2022. Then, following Karen’s death, Susannah moved into the Bombi Road property with her father.

23. [23]

    Within a few months John’s views towards Ruskin had changed. He apparently came to believe that Ruskin had taken advantage of him. He made a new will which abandoned the previous testamentary trust structure, disinherited Ruskin and Ruskin’s children (and Rory) and left his entire estate (including the assets inherited from Karen) to Susannah absolutely. He also appointed Susannah as his enduring power of attorney and enduring guardian, revoking Ruskin’s appointments.

Claims for determination

1. [24]

   The proceedings were commenced in John’s name in March 2023. As already mentioned, Ruskin is the first defendant. Lakshmi is the second defendant.

2. [25]

   In November last year the proceedings were fixed for trial before Meek J, starting on 2 June. But shortly before the trial date John suffered a severe stroke. Although he survived the stroke, he has been incapacitated, and it is uncertain whether he will recover. An accountant, Mr Martyn Kennedy, has been appointed as his tutor. The June hearing was vacated, and the matter was re-fixed for hearing, before me, in late August.

3. [26]

   John’s legal representatives acknowledged that it was too late to try to do anything about the dispositions which gave Ruskin ownership of Convulon and Lakshmi in 2014. They also acknowledged that, because Convulon was the appointor under the Convulon Trust, Ruskin’s control of that Trust was absolute (albeit that Susannah remains a discretionary beneficiary).

4. [27]

   At trial, there were four main claims for relief in the proceeding.

   1. (1)

      John sought to set aside the deed of appointment under which he nominated Ruskin as the Appointor of the Lakshmi Trust.

   2. (2)

      John also sought to set aside the transfer of the Bombi Road property to Ruskin.

   3. (3)

      Alternatively, John sought that Karen’s half share of the Bombi Road property be awarded to him by way of a family provision order as an asset forming part of Karen’s notional estate.

   4. (4)

      John sought an account from Ruskin with respect to various payments made by Ruskin from John’s and Karen’s bank accounts while he was helping them with their affairs. The payments in question covered the period from March 2017 to March 2022. The total amount of the payments was $3.425 million. The suggestion was that Ruskin applied these monies, or some of them, for his own purposes.

5. [28]

   For the purposes of the trial, the parties had prepared evidence addressing the payments which were the subject of the misappropriation claim against Ruskin, or at least some of those payments. But in the course of the hearing, counsel for Ruskin accepted that Ruskin had made the payments as agent for John and Karen, and was therefore under an obligation to provide an account justifying that expenditure. Ruskin accordingly agreed to submit to an order requiring him to provide such an account. It was common ground that the Court would make such an order at the end of the proceedings, and the account would, in the usual way, take place at a later point. The misappropriation allegations thus ceased to be live issues in the trial.

6. [29]

   There is a complication with the second claim. At the time of the transfer of the Bombi Road property, it was in the joint ownership of John and Karen. It follows that, as to Karen’s half share, any cause of action to reverse the transfer must be advanced by her estate.

7. [30]

   Ruskin is the executor named in Karen’s last will, with John as the beneficiary. At the hearing counsel accepted that it was necessary to obtain leave from the Court, in the exercise of its administrative jurisdiction, to pursue the claim in John’s name: see Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184 at [41]-[54]. For this purpose, a formal notice of motion was handed up at the beginning of final submissions and later filed.

Summary and analysis of evidence

1. [31]

   John was born in March 1949 and Karen in May 1941. They married in 1963. Ruskin was born in October 1965 and Susannah in December 1967.

2. [32]

   John, after he left school, obtained qualifications as a pharmacist and worked as such from 1961 onwards. He retired in 1991. Before she married John, Karen worked as a nurse. As well as looking after Ruskin and Susannah, Karen worked as a nurse from 1970 to 1990. For many years after 1970 she also held an ownership interest in a medical practice.

3. [33]

   It is unnecessary, given the issues in the proceedings, to go into the terms of the Convulon Trust or the SMSF in any detail. I will therefore only deal with the Lakshmi Trust.

4. [34]

   The original trust deed for the Lakshmi Trust appears to have been lost, but an undated and unsigned copy is in evidence. The case proceeded on the basis that this document contained the terms of the Trust, and I will refer to it as the “Trust Deed”.

5. [35]

   In the usual way, the Trust Deed provided for the Trustee to hold the assets of the Trust until the date of termination of the Trust and to distribute the capital of the Trust on that date among a nominated class of beneficiaries. Annual income derived from the Trust assets in the meantime was to be distributed among a nominated class of beneficiaries. Two classes of beneficiary were defined in the Trust Deed. The “first corpus beneficiaries” were John and the children of John and Karen (as events have turned out, Ruskin and Susannah). Karen was not herself a beneficiary. The “second corpus beneficiaries” were the grandchildren of John and Karen.

6. [36]

   Both as to distributions of annual income and capital upon termination of the Trust, the class of eligible beneficiaries consisted of both the first and second corpus beneficiaries. The Trustee was given a discretionary power to determine how much, if anything, they were to receive. Somewhat unusually, exercise of that power required the consent of the Appointor (as did the exercise of the Trustee’s discretion to bring the termination date forward). In default of a determination by the Trustee, both annual income and capital on termination were to be distributed equally among the first corpus beneficiaries.

7. [37]

   The Trust Deed gave the Trustee the power to vary the terms of the Trust (although not so as to displace entitlements to capital and income which had already vested). The exercise of this power required the consent of the Appointor.

8. [38]

   The Deed provided (cl 14) that during his lifetime John was to be the Appointor. If Karen survived him, she was to become the Appointor for the rest of her lifetime. Following the death of the survivor of John and Karen, the powers of the Appointor were to pass to the first corpus beneficiaries.

9. [39]

   In 1991 John purported to exercise his powers as Appointor so as to “nominate” MHPL as an additional first corpus beneficiary under the Trust. The validity of this “nomination” may be open to question, but does not need to be considered for the purposes of this judgment and is probably academic given the winding up of MHPL.

10. [40]

    Ruskin holds a degree in Bachelor of Commerce in Land Economics (Valuation) from the University of Western Sydney. From about 1994 he worked in commercial real estate. Initially this was in Syndey but from about 2003 to 2006 he was in Europe and then he lived and worked in Japan until early 2010. In Japan, he lived and worked at Niseko, a ski resort in Hokkaido. He became the owner of a share of a real estate agency business there, called Niseko Property.

11. [41]

    There was little evidence before me about Susannah’s life and career after she left home. She was described in a memorandum from Ruskin in 2012 as a schoolteacher but the evidence to which I was referred does not indicate when she obtained her teaching qualifications and started work as a teacher. Her son Rory was born in January 2004, but the relationship with Rory’s father did not last. Susannah was left with custody of Rory.

12. [42]

    It seems that for many years the management of the family companies (MHPL, Convulon and Lakshmi), including the administration of the trusts (the Convulon Trust, the Lakshmi Trust, and the SMSF), was undertaken by John, perhaps with some help from Karen. In 2004 or 2005 Susannah was appointed as an additional director of each of the three companies. According to John’s affidavit, the appointments were made so that Susannah could help him with the administration (for which she was paid a salary).

13. [43]

    This arrangement did not last. In 2007, Susannah moved to Bellingen (or back to Bellingen; she may have been living there before 2005) where she formed a new relationship. In 2008 she ceased to be a director of Convulon and MHPL and in 2009 she ceased to be a director of Lakshmi.

14. [44]

    In December 2005, John and Karen had bought a residential property for Susannah at The Scenic Road, MacMasters Beach, not far from Bombi Road. The purchase was apparently made pursuant to a declaration of trust by Susannah in favour of her parents (the declaration itself is not in evidence). When Susannah vacated the Scenic Road property in 2007, John and Karen moved in so as to enable renovations to be undertaken at Bombi Road. Later that year, the Scenic Road property was transferred from Susannah’s name into theirs.

15. [45]

    John and Karen lived at The Scenic Road for three years while renovations were undertaken at Bombi Road. They moved back to Bombi Road in 2010, but the renovations were incomplete and Karen decided not to stay. She returned to Scenic Road while John stayed at Bombi Road supervising the further works being carried out. The works were eventually completed and Karen moved back to Bombi Road for good in about 2013.

16. [46]

    Meanwhile, Ruskin moved back to Australia from Niseko. The arrangements for the move began in 2010 and were completed in 2011. Ruskin sold out of the Niseko Property business but continued to hold property in Japan and spend time there. He also appears to have continued to have business interests in Niseko (the nature of which are unclear on the evidence). His business operated under the name “Inside Line”.

17. [47]

    The precise date when Ruskin began his relationship with Jodie is not revealed in the evidence. I assume that it was in 2010 or before. Their older daughter Ava was born in December 2011, and their younger daughter Maia was born in February 2013. Also in 2013, they established a home in Sydney at Bronte Road, Bronte.

18. [48]

    Meanwhile, Ruskin had been appointed, alongside his parents, as an additional director of each of Convulon, Lakshmi and MHPL. The appointments were made in May 2010. In 2013 and 2014, Ruskin was given authority by his parents to operate their personal bank accounts.

19. [49]

    John and Karen’s 2014 wills and enduring powers of attorney and guardianship in favour of Ruskin were executed in June. There is no evidence as to what John and Karen’s previous testamentary arrangements had been.

20. [50]

    As already mentioned, the wills were in mirror format. Each provided that, following the death of the survivor of John and Karen, the survivor’s assets should in part be distributed but in part retained under testamentary trusts to be administered by the executor and trustee of the will (the “Trustee”). The Trustee was to be Ruskin, but if he was unable or unwilling to act, the Trustee was to be his wife, Jodie.

21. [51]

    As already mentioned, Ruskin was to receive the Bombi Road property (or any substitute matrimonial home) as well as the shares in Lakshmi, Convulon and MHPL. Susannah was to receive a bequest of $300,000. The rest of the property was to be held on the terms of two testamentary trusts. One was a $1 million trust in favour of Susannah. The other was a trust in favour of John and Karen’s grandchildren.

22. [52]

    Susannah’s testamentary trust was discretionary in form. The termination date was to be ten years after the death of the survivor of John and Karen. The beneficiaries of the Trust were to be Susannah and any children that she might have. On termination, the capital was to go to such of the beneficiaries as were selected by the Trustee. In default of determination, the assets were to go to Susannah’s children. The income was to be distributed among the beneficiaries, or accumulated, at the Trustee’s discretion. In default of any determination by the Trustee, the income was to go to Susannah.

23. [53]

    The testamentary trust in favour of the grandchildren was similarly discretionary. The beneficiaries were the grandchildren and any children which they might have. The termination date of the Trust was 30 years after the death of the survivor of John and Karen.

24. [54]

    The transfer to Ruskin of the shares in Lakshmi and Convulon and the resignations of John and Karen as directors took place in September 2014, about three months after the wills had been signed. Control of MHPL, and thus of the SMSF, was not affected. The shares in MHPL continued to belong to John and Karen, and they, together with Ruskin, continued as directors of the company.

25. [55]

    At the time, the issued capital of each of Convulon and Lakshmi was nominal, and it appears that the formal consideration for each of the transfers was likewise nominal. Ruskin, however, claimed that he paid substantial sums of money to or at the direction of his parents in return for what he characterised as “effective ownership” of the Trusts. I refer further to the evidence on this subject below.

26. [56]

    In a later section of this judgment, I set out in detail the course of events surrounding the 2014 wills and share transfers. Initial advice was obtained (at least by Ruskin) from Mr Steve Walker, the McLennans’ accountant. The wills were prepared by Mr Heath Adams. Mr Adams is a solicitor practising in Sydney under the name “Adams Partners Lawyers”.

27. [57]

    Susannah’s son Rory seems to have gone to primary school in Bellingen where he was living with his mother. He would visit his father in Sydney and his grandparents on the Central Coast during holidays, but the McLennans were keen for him to attend Knox Grammar School on Sydney’s north shore, where John had been educated, for his secondary education. Rory started year 7 at Knox in 2017. His school fees were, it seems, paid by Ruskin, but those payments may, at least to some extent, have been funded out of distributions made from the discretionary trusts.

28. [58]

    Initially Rory boarded at Knox, but he came to dislike boarding. In about 2019 a rental property was found for him (and, I assume, Susannah) instead. The rent for this apartment also appears to have come from the McLennans or Ruskin.

29. [59]

    Late in 2017 John and Karen were introduced by Ruskin to an investment at Rusutsu in Japan (Rusutsu is a ski resort not far from Niseko). They paid approximately $900,000 and acquired a 30% interest in the property. Ruskin himself acquired a further 30% interest, which was, partially at least, funded by a loan from his parents.

30. [60]

    Meanwhile, further financial planning advice was received from Mr Walker, and from a financial planner recommended by him, Mr Joe Jutrisa, beginning in 2017. This advice focussed in particular on the SMSF. In 2019, Jodie became a director of MHPL and joined the SMSF alongside John, Karen and Ruskin.

31. [61]

    Also in 2019, Mr Adams was retained again for wider estate planning purposes. For the purposes of this retainer, Mr Adams sought advice from a barrister, Mr David Jay. As already mentioned, this resulted in three main steps being taken. Again, the course of events is set out in detail in a later section of the judgment. For present purposes, it is sufficient to set out the effect of the dispositions which were eventually made.

32. [62]

    First, amendments were made to the Lakshmi Trust Deed to provide, expressly, for the Appointor (John) to be able to nominate someone else to exercise the power of appointment under the Deed. By a separate deed, John nominated Ruskin as the Appointor. The deeds in question are dated March 2020, although there is conflicting evidence about when they were in fact executed.

33. [63]

    Then, in September 2020, John and Karen each executed new wills. Again, the wills were in mirror form, and they largely continued the scheme of the 2014 wills. I have sufficiently summarised their provisions already, at [17] above.

34. [64]

    Third, the Bombi Road property was transferred to Ruskin. The transfer was signed on the same day as the new wills of John and Karen were signed. The Deed of Life Tenancy was executed a month later, in October. The transfer was registered, with a caveat being lodged to protect John’s and Karen’s “life interest”. The duty ($96,000) was paid from their joint funds.

35. [65]

    After the new dispositions had been completed in October 2020, Ruskin continued to manage the Lakshmi and Convulon Trusts, and also to assist his parents with the SMSF and with their personal finances, as before. This state of affairs continued until Karen died in March 2022 and the present dispute between the parties arose later in that year.

36. [66]

    According to Ruskin, he continued to pay Rory’s school fees up until the end of 2022 when Rory completed his schooling at Knox. I was also told that Ruskin continues to meet the rates under the outgoings incurred by him as owner of the Bombi Road property.

37. [67]

    Following Karen’s death, her share of the SMSF was paid out to John pursuant to a death benefit nomination she had previously made. John’s own share was later transferred to another trustee for management. I assume that the same has happened with Ruskin’s and Jodie’s shares. MHPL was in September 2023 put into members’ voluntary liquidation.

38. [68]

    As at the date of the trial, John remained in hospital following his stroke three months before. It was unclear whether he would ever be able to return to live at Bombi Road.

39. [69]

    The sole witness in support of John’s claims was John himself. There was no evidence from Susannah.

40. [70]

    Following John’s stroke, it was not possible for him to give evidence at the trial. Counsel for Ruskin accepted that, where otherwise admissible, John’s affidavit could be read under s 63 of the Evidence Act 1995. Counsel submitted, however, that the affidavit was unreliable and of limited weight. I address these submissions when making findings on the factual issues below.

41. [71]

    The case for Ruskin consisted of evidence from himself and Mr Adams. Ruskin was cross-examined at length, and his credit was severely attacked by counsel for John. Mr Adams was also cross-examined, at somewhat lesser length. I did not understand his credit to be directly in issue but counsel for John did not accept that all of his evidence was necessarily reliable. I will address the evidence of these witnesses in more detail below.

42. [72]

    No evidence was called by either party from the other advisors, Mr Walker and Mr Jutrisa. Nor was Mr Jay called as a witness.

43. [73]

    Documentary evidence: The events which led to Mr Adams’ retainer can be traced back to advice obtained by the McLennans (or at least Ruskin) from Mr Walker in March 2011. The request for advice was recorded in a memorandum addressed to Mr Walker (with a copy to John) dated 20 March.

44. [74]

    Ruskin’s memorandum began with the following “overview”:

45. [75]

    After setting out the family’s personal details and their “business structure”, the memorandum identified the following questions for consideration by Mr Walker:

46. [76]

    The memorandum was also addressed to Mr Bruce Healey. Mr Healey was a solicitor whose services had previously been used by John. But there is no evidence that Mr Healey, either in March 2011 or at any later stage, actually participated in the provision of advice to the McLennans on estate planning issues.

47. [77]

    According to Ruskin’s later instructions to Mr Adams, there was a meeting on 28 March 2011 at which Mr Walker provided some oral advice in response to the memorandum. Nothing appears to have happened thereafter until Mr Adams was approached in late 2012.

48. [78]

    Early in October 2012, John suffered a stroke. The stroke does not appear to have been permanently disabling, but he spent two weeks in hospital and then about three months in rehabilitation, not being discharged until January the following year.

49. [79]

    In the meantime, on 20 November Ruskin emailed Mr Walker, with a copy to John:

50. [80]

    Eventually, Ruskin identified Mr Adams as a suitable lawyer to consult. Ruskin briefed Mr Adams with a memorandum on 14 December and they met on 20 December, following which Mr Adams undertook to confirm his advice in writing.

51. [81]

    Ruskin’s 14 December memorandum repeated most of what had appeared in the earlier memorandum to Mr Walker. It continued with “notes from the meeting” with Mr Walker on 28 March 2011:

52. [82]

    The memorandum then posed two questions for Mr Adams. The second is not relevant for present purposes. The first question was:

53. [83]

    On 10 February, before the formal advice had been received from Mr Adams, Ruskin wrote a memorandum addressed to his father (with a copy to his mother) concerning the Lakshmi and Convulon properties. The memorandum began with the following “overview”:

54. [84]

    After discussing the level of income returned, and expenses incurred, by the properties and their future maintenance and redevelopment requirements, Ruskin went on:

55. [85]

    The memorandum continued:

56. [86]

    The copy of the memorandum which is in evidence bears a handwritten annotation by John that it was found in Karen’s office at Bombi Road after she died. The date on which the annotation was made is not established in the evidence.

57. [87]

    Mr Adams formally opened his file in 2013. Although the file is not in evidence, Mr Adams’ practices so far as communication with his clients was concerned can be gleaned from other evidence. The client(s), and their postal address, were recorded in a formal retainer agreement. Formal letters to clients, and memoranda of fees, were addressed to the client(s) at the nominated postal address. Client letters were also addressed by email, to a specified email address. Supplementary communications generally took place by email.

58. [88]

    For the purposes of the 2013 file, the client was identified as Ruskin (alone). The postal address used for client letters was Ruskin’s home at Bronte Road, with the email address being Ruskin’s personal email address.

59. [89]

    The formal advice promised by Mr Adams on 20 December 2012 was provided by client letter dated 20 February 2013. The letter divided the first question posed in Ruskin’s memorandum of 14 December (see [82] above) into two further parts.

60. [90]

    The advice given on the first part of that question was:

61. [91]

    The second part of the question was dealt with as follows:

62. [92]

    After dealing with the other question in Ruskin’s memorandum (which related to CGT and is not relevant for current purposes) the letter continued:

63. [93]

    Enclosed with the letter were a form of retainer agreement and a fee note. The retainer agreement identified Ruskin as the client. The fee note likewise identified Ruskin as the client but was addressed to a post office box (Box 175) at Ettalong Beach (Ettalong Beach is near MacMasters Beach).

64. [94]

    Following receipt of the letter by Ruskin, he contacted Mr Walker. The following emails were exchanged between them:

65. [95]

    On 3 May Mr Adams sent a further client letter to Ruskin. The letter dealt with various taxation issues associated with the loan proposal set out in Ruskin’s memorandum of 14 December the previous year. It was sent in response to an email of 20 March from Ruskin which appears to have included comments from Mr Walker, but neither that email, nor any written advice given by Mr Walker, appears to be in evidence.

66. [96]

    There is then a gap in the documentary evidence until early 2014, when there is some email correspondence with officers of the Commonwealth Bank of Australia (“CBA”). It is evident from the emails that this was when new banking arrangements were made for John and Karen. In summary:

    1. (1)

       on 31 January John emailed a bank officer under the subject heading “new accounts”, giving his and Karen’s email addresses, as well as his home and mobile phone numbers;

    2. (2)

       on 18 February John emailed Ruskin and an officer of the bank reporting that after a search for a “a couple of hours” he had found the trust deed for the SMSF;

    3. (3)

       on 28 February a bank officer emailed Ruskin referring to a meeting at the offices of the Commonwealth Private Bank in Sussex Street in the CBD earlier that day, and confirming that internet banking arrangements were being made for John, Karen and Ruskin;

    4. (4)

       on 3 March Ruskin replied, with a copy to his father, asking for log in details for his father and for all of his parents’ “accounts” to be sent to PO Box 84 Ettalong Beach;

    5. (5)

       later that day the bank officer replied confirming that John had been registered with his own internet banking access facility and that all correspondence would be sent to Box 84.

67. [97]

    Meanwhile, contact with Mr Adams had resumed. He opened a new file, entitled “estate planning”. The clients were identified as John and Karen (and not Ruskin), with their postal address being Bombi Road.

68. [98]

    The first meeting with Mr Adams for the purpose of the new retainer took place on 28 February (the same day as the meeting with CBA officers at Sussex Street). On 18 March Mr Adams sent a client letter following up on that meeting. The letter was addressed to John and Karen, as the clients, at Bombi Road. The email address on it was Ruskin’s (only).

69. [99]

    The letter recorded details of the McLennans’ family trusts and assets. It went on to record that the McLennans had given Mr Adams instructions to draw up fresh wills and enduring powers of attorney and guardianship. The letter sought the provision of further information and instructions so that Mr Adams could draw up the new instruments.

70. [100]

    The instructions concerning the new wills were in general terms and were said to have included:

71. [101]

    On 22 May, Mr Adams sent a further client letter, together with draft wills and powers of attorney and guardianship. The letter was addressed to John and Karen at Bombi Road, but, unlike the 18 March letter, was marked “by email only” and addressed to John’s email address, Karen’s email address and Ruskin’s email address. The covering email is in evidence and demonstrates that the letter was emailed to each of those addresses.

72. [102]

    The letter recounted that the McLennans had given instructions for the will to contain the provisions in favour of Ruskin, Susannah and their grandchildren in the form adopted in the wills as executed, which I have summarised above at [17]. It dealt with each of the major assets of the McLennans in turn. It recorded that the McLennans wished to pass to Ruskin “control and absolute discretion in” Lakshmi, Convulon and the Trusts, as well as MHPL. The letter also recorded that since the advice given in 2013, Ruskin had “taken control of the Trustee entities” but John and Karen remained directors and shareholders.

73. [103]

    The letter first dealt with the position of the Convulon Trust. It relevantly advised.

74. [104]

    This advice was repeated for the Lakshmi Trust, but before doing so the letter noted:

75. [105]

    Concerning MHPL and the SMSF, the letter noted that the assets of the Fund (then $5 million in shares and $1.6 million in cash) were to be used to fund the testamentary trusts in favour of Susannah and the grandchildren. Mr Adams noted that this would require the death benefits to be directed through the estate of the surviving McLennan parent, rather than directly to specified family members. Mr Adams recommended that financial advice be obtained about this, and specifically whether there were any tax implications.

76. [106]

    The letter also contained a discussion on “excluding persons on your will”. This included:

77. [107]

    On 28 May, Ruskin emailed Mr Walker in anticipation of a meeting which was to take place the following Monday (2 June). The email stated:

78. [108]

    The wills and enduring powers of attorney and guardianship were signed by John and Karen, with their signatures being witnessed by Mr Adams, on 3 June. Later that day, Ruskin emailed Mr Walker (with a copy to John):

79. [109]

    On 12 June Mr Adams issued a further client letter reporting on the meeting of 3 June. As with the 18 March letter, the 12 June letter was addressed to John and Karen at Bombi Road and was marked by email to Ruskin’s email address (alone).

80. [110]

    The letter recorded that at the meeting on 3 June, the draft wills, and the powers of attorney and enduring guardian had been “reviewed” together with aspects of the written advice of 22 May. This review had resulted in various amendments to the wills which were then described.

81. [111]

    The letter continued:

82. [112]

    There is no doubt that the client letters of 18 March and 12 June were emailed to Ruskin’s email address. Whether they were also sent by post to Bombi Road is in issue and will be discussed further below.

83. [113]

    It seems that the letter of 12 June marked the end of Mr Adams’ retainer. He enclosed his bill, and there is no evidence of any further work having been undertaken thereafter until 2019.

84. [114]

    Two and a half months passed before, on 1 September, notifications were sent to ASIC that John and Karen had resigned as directors of Convulon and Lakshmi, and transferred their shares to Ruskin. The notifications were lodged on Ruskin’s behalf by Mr Walker’s firm.

85. [115]

    Signed notices of resignation, minutes and share transfers (at the nominal price of $1) are in evidence for Convulon. No equivalent documentation for Lakshmi appears to be in evidence, but no point was taken about this, and I assume that equivalent documents were signed for that company. Nor does any surrounding correspondence with Mr Walker appear to be in evidence.

86. [116]

    Affidavit evidence: In his first affidavit, which was made in February 2023, John deposed that Ruskin’s appointment as a director of Lakshmi and Convulon in May 2010 came about at Ruskin’s initiative. According to John, Ruskin had previously asked to buy Lakshmi and Convulon for himself, and John had agreed on condition that Ruskin pay market price for the properties.

87. [117]

    The affidavit did not refer to Ruskin’s appointment as a director of MHPL, which happened at the same time. But without saying so expressly, it proceeded on the basis that Ruskin had effectively taken over the management of his parents’ financial affairs. John deposed:

88. [118]

    The affidavit deposed that there were further discussions between John and Ruskin about Ruskin buying Lakshmi and Convulon, with John insisting this be at market price and also that he and Karen continue to receive to the benefit of the income of the properties in the meantime. However, no sale took place. The affidavit does not really give any reason for that, beyond a suggestion that Ruskin, for unspecified reasons, failed to obtain the necessary valuations.

89. [119]

    John deposed that he was not worried about Ruskin running Convulon and Lakshmi because he and Karen were still directors. Later in the affidavit, he went further (emphasis added):

90. [120]

    The affidavit also referred to the new banking arrangements which were adopted in 2014. John deposed:

91. [121]

    The affidavit said nothing at all about the new wills made which John and Karen made in 2014, or the advice which preceded the making of those wills. It did not mention Mr Adams at all in this connection. Nor did it say anything about Mr Walker’s involvement.

92. [122]

    Neither did the affidavit say anything by way of explanation of the transfer of the Lakshmi and Convulon shares to Ruskin in September 2014. Indeed, John deposed:

93. [123]

    In his affidavit in response to his father’s affidavit, which was made in October 2023, Ruskin gave a quite different explanation about how he had come to be appointed as a director of Convulon and Lakshmi (and MHPL, although Ruskin did not refer to his appointment as a director of that company). Ruskin deposed that in late 2009 his father asked him to come back to Australia to help manage the Lakshmi and Convulon properties. In that conversation, his father mentioned that he had been dissatisfied with the help previously provided by Susannah, he wanted to step back from full responsibility for managing the properties.

94. [124]

    According to Ruskin, he had a further conversation on the issue with his father in April 2010 while staying with them at Scenic Road during a visit to Australia. John proposed that Ruskin return to Australia to manage the family assets. He mentioned paying Ruskin a salary of $100,000. Ruskin said that he was prepared to give it a trial, but mentioned that he had been earning much more than that and he did not wish to go back to being an employee, or being micro-managed. His father responded that he would not interfere with day-to-day management and Ruskin would be given the opportunity to purchase the properties. Ruskin could live at Scenic Road. Ruskin was prepared to do this but wanted to live on his own. His father responded that he and Karen would be moving back to Bombi Road.

95. [125]

    Ruskin deposed that his mother was present during the conversation an agreed. She also brought up the question of estate planning. Ruskin deposed:

96. [126]

    Ruskin deposed that it was after this that he was appointed a director of Lakshmi and Convulon (he did not mention his appointment as a director of MHPL, which took place at the same time). His father introduced him to the tenants of the Lakshmi and Convulon properties, the managers and tradespeople who had provided services. At the end of 2010 he went back to Japan, returning in March 2011 having made arrangements for the sale in his interest in the Niseko property business.

97. [127]

    Ruskin deposed:

98. [128]

    In this connection, Ruskin also referred to Post Office Box 175 at Ettalong Beach, to which some of Mr Adams’ correspondence was addressed. He described it as a box which his parents rented. He deposed that he had a set of keys until about 2016 when he returned the keys to them.

99. [129]

    Ruskin then addressed the transfer of the shares in Convulon and Lakshmi. He began by deposing that, following the preparation of his memorandum to Mr Walker, he, and his father, attended the meeting with Mr Walker which took place on 28 March 2011. Before the meeting he printed out copies of the memorandum and gave one to each of his parents; a copy was also later emailed to Mr Healey. At the meeting his father asked for advice on minimising a risk of a claim by Susannah and Mr Walker recommended that he should think about retaining a lawyer specialising in estate planning.

100. [130]

     Ruskin deposed that in late 2012 his parents “turned their minds again to their estate affairs” and asked him to find an “estate lawyer” for them. He referred to his email to Mr Walker, which he described as a request for recommend a lawyer who could provide advice on “estate planning issues”. Eventually Ruskin found Mr Adams through a colleague at his firm with whom Ruskin had previously dealt.

101. [131]

     Ruskin deposed that he (alone) attended the meeting with Mr Adams in December 2012 to discuss the potential purchase of Lakshimi and Convulon, but also to find out whether Mr Adams could provide estate planning advice to his parents. Mr Adams agreed to do so. Following the meeting Ruskin discussed with his parents the “issues which [he] had talked through” with Mr Adams. His parents then agreed to retain Mr Adams.

102. [132]

     Ruskin did not in his affidavit refer to his memorandum to his parents of 10 February 2013 or to Mr Adams’ advice of 20 February. He did however refer to his email exchange with Mr Walker on 26 February in which Mr Walker agreed with Mr Adams’ advice.

103. [133]

     Ruskin deposed by 2013 he had been managing the Lakshmi and Convulon properties for some time and had improved the rental returns on the properties. This was apparently presented as the context for the proposal to his parents which Ruskin then described.

104. [134]

     Ruskin deposed that on one of his Monday morning visits to his parents, he told them that a property that he owned in Japan would be sold in the following year and that, using that money, he would pay $1 million to “buy out Lakshmi and Convulon”. He would also pay Rory’s school fees at Knox. Ruskin proposed that he make “a series of payments over the next three years”, which would include $670,000 from the Japanese property when the sale settled, to which his father agreed.

105. [135]

     Ruskin deposed that in “the period following this conversation” he paid his parents approximately $1.18 million. This was made up of $303,000 in miscellaneous expenses, including for Rory’s education, between July 2014 and December 2016. Ruskin identified further payments between February and May 2016, totalling $880,000. This included $670,000 paid in May 2016. Without any further comment, he recorded the transfer to him of their shares in Convulon and Lakshmi, and resignations from the companies, “on or about” 1 September 2014.

106. [136]

     The next section of Ruskin’s affidavit dealt with Mr Adams’ 2014 retainer and advice. He deposed that he attended the meeting with Mr Adams on 28 February 2014 ([98] above). Ruskin characterised the meeting as one between his parents and Mr Adams. He was not an “active participant” and did not give instructions; he was there to observe and to support his parents.

107. [137]

     Ruskin recorded that he received Mr Adams’ follow-up letter of 18 March 2014 and his letter of 22 May together with the enclosed draft wills and other documents. Ruskin quoted from the latter letter. Among the passages quoted were passages referring to giving Ruskin “control and discretion of” Lakshmi and Convulon and MHPL and about the potential for Susannah to make a claim.

108. [138]

     Ruskin also referred to the meeting with Mr Adams on 3 June ([108] above). He could not recall whether he had attended. He deposed, however, that he did receive Mr Adams’ letter of 12 June reporting on the 3 June meeting. ([109] above).

109. [139]

     An affidavit in reply to Ruskin’s affidavit was made by John in late November 2023. In that affidavit he dealt at some length with what Ruskin had said in his affidavit in response to John’s original affidavit.

110. [140]

     John’s reply affidavit began by challenging the suggestion that he had in some way been dissatisfied with a lack of assistance from Susannah. He pointed out that Susannah had moved to Bellingen in 2007. She was therefore unable to provide help at the time Ruskin was talking about.

111. [141]

     John also denied the conversation alleged by Ruskin about leaving Susannah only $100,000 in the will ([125] above). He deposed that generally he and Karen did not complain to Ruskin about Susannah’s behaviour (or to Susannah about Ruskin’s). At a later point in the affidavit, he said that to the best of his knowledge and belief, Susannah had been a teetotaller since 2015, “but even prior to that time I did not have concerns about her drinking habits”.

112. [142]

     John denied that he made any agreement with Ruskin for Ruskin to manage the Convulon and Lakshmi properties prior to his return to Australia in 2011. John deposed that the administration of the properties was not taking up a great deal of time. He and Karen were already spending a lot of time travelling but he found he was able to stay on top of the management of the properties by telephoning the agent.

113. [143]

     John did, however, acknowledge that he appointed Ruskin as director of Lakshmi and Convulon because Ruskin was helping with the management of the properties. He did not explain when or how this help began. He continued to maintain that Ruskin would only be entitled to the benefit of the income of the property once he had purchased them for market value. John deposed that he had no intention of selling the Convulon or Lakshmi properties.

114. [144]

     John denied that he would ever discuss estate planning with one of his children. He said that he and Karen had “very strong views” on the question and had always agreed that the distribution between their children would be equal. He attributed this to Karen’s experience with her father. The whole of Karen’s father’s estate went to his second wife but when she died, she left her estate to her own children which meant that Karen had received nothing.

115. [145]

     John also contested what Ruskin said about his dealings with his parents at the time, at least as to part. He accepted that Ruskin would come and visit on Mondays, but only after 2014. Ruskin would spend most of his time with Karen and would also go surfing on his own. Any discussions about the properties took place in passing, and did not happen often. Karen had no active involvement with the properties or the SMSF. He did not show Ruskin documents received from the agents or other advisors.

116. [146]

     John also took issue with what Ruskin said about Box 175 at Ettalong Beach. John deposed that he and Karen used a different post box at Ettalong Beach, Box 84. He denied that he and Karen owned Box 175 or that Ruskin gave them the keys.

117. [147]

     John deposed that he did not recall the meeting with Mr Walker on 28 March 2011. He denied ever receiving a copy of Ruskin’s memorandum of 20 March.

118. [148]

     John also denied that he and Karen asked Ruskin to find an estate lawyer in 2012. He specifically denied asking Ruskin to meet with Mr Adams on his and Karen’s behalf. He deposed that if he had considered that he and Karen needed estate planning advice, he would have instructed Mr Healey, who was his and Karen’s solicitor at the time.

119. [149]

     He denied that Ruskin reported to him on the discussion with Mr Adams which took place on 20 December 2012. He said nothing about Ruskin’s memorandum of February 2013 which was addressed to him and Karen ([132] above).

120. [150]

     John’s affidavit next turned to the alleged agreement for him to buy Lakshmi and Convulon for $1 million, paid over a three-year period ([134]-[135] above). John did accept that Ruskin was involved in negotiating a new lease for one of the properties and also changed the managing agent, but sought to downplay this by suggesting the people involved were friends of Ruskin. He said he had no specific recollection of the other improvements which Ruskin claimed to have made to the management of the properties. He denied the agreement alleged by Ruskin, stating that, even if the sum of $1.18 million had been paid he would not have regarded it as representing market value for the properties. He believed the properties were worth $7 million at the time.

121. [151]

     In responding to Ruskin’s evidence about the payments which he claimed to have made pursuant to the agreement, the affidavit returned to the establishment of the new bank accounts for John, Karen and Ruskin in early 2014. John deposed:

122. [152]

     John deposed that he “agreed to allow Ruskin to become a director of Convulon and Lakshmi back in 2014” [sic; the appointment had been made in 2010] because he understood that Ruskin was eventually to pay him market value for the Convulon property and the Lakshmi property. He repeated what he had said in his earlier affidavit about not being aware of the transfer of shares and his and Karen’s resignation from Convulon and Lakshmi in September 2014, although he offered no further explanation for this.

123. [153]

     As to the advice given by Mr Adams in 2014, John deposed that he could only recall having met Mr Adams once before September 2020, and he could not recall when that was. He deposed that he was unable to recall Mr Adams’ letter of 18 March and noted that it had Ruskin’s email on it. He deposed that he was unable to remember reading Mr Adams’ email of 22 May (he did not apparently dispute that the email had been sent to him). Nor could he recall receiving Mr Adams’ letter of 12 June.

124. [154]

     John deposed that he did not recall having ever given instructions to Ruskin or Mr Adams for the preparation of a will in 2014. He deposed that he had always considered Mr Adams to be Ruskin’s solicitor. He did not recall “specifically” the meeting with Mr Adams on 28 February, or signing the documents on 3 June.

125. [155]

     Mr Adams’ affidavit was made in February last year. Due to the lapse of time, he no longer has any files to do with his 2013 and 2014 retainers. Not surprisingly, he could not recall the precise words of conversations which he had at the time with Ruskin and his parents.

126. [156]

     Subject to these limitations, Mr Adams deposed that he first met Ruskin in 2012 when they were introduced by another member of his firm. His evidence about the initial instructions given by Ruskin was as follows:

127. [157]

     According to Mr Adams, he advised Ruskin that if he were to advise on any claim by Susannah, he would need to obtain separate instructions and further information directly from John and Karen. He then received instructions “several months” afterwards to do so.

128. [158]

     Mr Adams gave the following evidence about the 2014 retainer:

129. [159]

     Concerning the execution of the wills Mr Adams deposed:

130. [160]

     Mr Adams deposed that he received no reply to his client letter of 12 June. As a result, he concluded that his retainer had come to an end, and he closed the file. He did not hear from John, Karen or Ruskin for more than four years afterwards.

131. [161]

     John made a supplementary affidavit in September last year. That affidavit, however, was concerned with the opening of the CBA bank accounts and the making of various payments from those accounts. It did not deal with the 2014 wills or share transfers. In particular, the affidavit did not respond to Mr Adams’ affidavit.

132. [162]

     Concerning the CBA bank accounts, John deposed:

133. [163]

     Ruskin made a supplementary affidavit in May this year. The affidavit clarified his evidence concerning PO Box 175 at Ettalong Beach. Ruskin deposed that he opened that Box in his name in around 2010. At that time, he had no fixed residential address in Australia. There were two keys to the Box. He held one and his mother held the other. She used that key to collect his mail while he was away.

134. [164]

     Ruskin deposed that he and Jodie settled the purchase of their home at Bronte Road on 1 July 2013. Thereafter Ruskin used that address, and a PO Box at Waverley, as his mailing address. From about the end of 2013, he stopped using Box 175. Thereafter, it was used by his mother. Ruskin deposed that he would occasionally thereafter collect mail from both Boxes 175 and 86 for his parents. Although the Boxes were not in his name, the staff knew him and his parents and would give him the mail.

135. [165]

     Oral testimony of Mr Adams: In cross-examination by counsel for John, Mr Adams agreed that when he was approached by Ruskin in December 2012, Ruskin was seeking advice about the management and control of the discretionary trusts. Mr Adams recalled that at one stage the question of Ruskin purchasing the underlying assets had been discussed, but he advised that this would give rise to transfer duty and tax liabilities, and the question was not pursued.

136. [166]

     Counsel referred Mr Adams to his letters of 20 February 2013 and 2 May 2013. Consistently with his affidavit, Mr Adams said that he had no independent recollection of the detail of the discussions which took place between himself and Ruskin beyond what was recorded in his correspondence. Counsel referred Mr Adams to the statement in [2.1.7] of the letter of 20 February that if John and Karen resigned at directors of Lakshmi and Convulon, leaving Ruskin as the sole director, the Appointor “would still retain a degree of control over the appointment and removal of various Trustees”, but Mr Adams could not recall whether he discussed this with Ruskin.

137. [167]

     The copy of the letter of 2 May which appeared in the court book showed an “emailed” stamp on the letter with that date in handwriting. I asked Mr Adams about this, which led to him giving some evidence about his record keeping procedures in answer to questions from both myself and counsel.

138. [168]

     Mr Adams said that at the time he kept a paper file for correspondence and file notes. This file was kept for him by his secretary, who generally was responsible for sending correspondence out. There was also a computerised system (using LEAP software) used for management purposes which retained some of the correspondence, apparently in soft copy form. But this was not necessarily complete, and Mr Adams described the retention of correspondence on it as “hit and miss”.

139. [169]

     Mr Adams said that when a letter was sent out and the letter had both a postal and email address on it, it would be scanned and emailed to the email address. The “emailed” stamp might then be affixed to the original, but that did not invariably happen. The original might be sent by post, with a copy retained on file. But this did not always happen either. Sometimes the original would simply be retained as the file copy.

140. [170]

     Mr Adams said that when he came to prepare his evidence for the purpose of the case, he no longer had the paper files for the 2013 and 2014 matters. He asked his secretary to retrieve what she could from the LEAP system. Copies of other documents appear to have been obtained from Ruskin’s solicitors.

141. [171]

     Unsurprisingly, Mr Adams was not able in the witness box to identify which documents had been obtained from which source. No steps were taken, by any party, to clarify this during Mr Adams’ cross-examination, or thereafter before the evidence closed. It remained unclear, at least where there was no “emailed” stamp, whether the 2013 and 2014 letters in the court book were copies of originals which had been sent out by post, or of emailed copies.

142. [172]

     Counsel asked Mr Adams whether, when advising John and Karen in 2014, he discussed with them that he had been retained by Ruskin during the previous year. Again, Mr Adams had no specific recollection. He thought it was the sort of matter which would naturally have come up when he first met John and Karen in February 2014, but he could not be sure. Counsel did not ask anything further about the instructions received and advice given by Mr Adams under the 2014 retainer, whether in connection with the preparation of John and Karen’s 2014 wills or otherwise.

143. [173]

     Oral testimony of Ruskin: In cross-examination, counsel for John challenged Ruskin’s account of the conversations with his parents prior to his appointment as a director of Lakshmi and Convulon (and of MHPL) in May 2010. Counsel put to Ruskin that the impetus for the discussions came from him. He wanted to obtain ownership of the Lakshmi and Convulon properties for his own benefit. John had not expressed any desire to retire from managing the properties, and made it clear that if Ruskin was to obtain ownership of them, he would need to pay market price and his parents were to continue to enjoy the benefit of the income from them. For his part, Ruskin had no intention of paying market value for the properties (and could not afford the $7 million which counsel suggested they were worth) anyway. He became involved in managing them in the hope of persuading his father to change his mind.

144. [174]

     Counsel put that the situation continued through the process of seeking advice from Mr Walker and then from Mr Adams. Ruskin’s motivation in approaching Mr Walker in March 2011 was to enlist support for being given the Lakshmi and Convulon properties. The same motivation lay behind Ruskin’s memorandum of 20 February 2013, which counsel characterised as an “offer”. But John continued to stand firm and insist upon payment of full market value. Counsel put to Ruskin that when John received the memorandum of 20 February, he rejected the “offer” in it for that reason. Counsel drew Ruskin’s attention to the statement in [2.1.7] of Mr Adams’ later advice that the Appointor (John) would retain “a degree of control”.

145. [175]

     Counsel attacked Ruskin’s claim that he made an oral agreement with his parents in 2013 or thereabouts to buy Lakshmi and Convulon for $1 million or so in deferred payment. Counsel put to Ruskin that this was far less than the properties were worth. And had such an agreement existed, he would have told Mr Adams about it.

146. [176]

     Ruskin resisted counsel’s allegations. He said that his father had discussed with him the possibility of retiring from management of the properties even before 2009, although he could not give any evidence of any specific occasions and conversations. From 2011 onwards he did wish to acquire ownership of the properties, but there was no discussion about price before 2013, and his father certainly did not intimate that any acquisition would be for full market value and would leave his parents with the benefit of the income of the properties.

147. [177]

     Ruskin denied that he tried to enlist Mr Walker’s assistance to make his father change his mind. The memorandum of February 2013 merely set out possibilities for discussion. Acquisition did not proceed in that form because, in Ruskin’s recollection, he could not obtain finance on suitable terms. The idea was never ruled out by his father.

148. [178]

     Ruskin maintained that an agreement had been struck with his parents as recorded in his affidavit in 2013 or thereabouts, although he did not offer any explanation for why, if that was so, he did not tell Mr Adams about it. He acknowledged the reference to the appointor’s control in the letter of February 2013, but said that he had not understood the implications of this at the time, and they only became clear when advice was given on the subject in 2019 (see below).

149. [179]

     Ruskin did not accept counsel’s suggestion that the Lakshmi and Convulon properties were worth $7 million or so at the time. He said that he did not know exactly how much they were worth, and continued to do so even after counsel put to him the estimate he gave Mr Adams in 2019 that the properties would then have been worth $10 million.

150. [180]

     Counsel went on to question Ruskin about the payments he claimed to have made pursuant to the agreement with his parents to purchase Lakshmi and Convulon. Given the conclusions which I have reached, it is unnecessary to summarise this part of the cross-examination.

151. [181]

     Counsel did not ask Ruskin about the instructions given, by his parents and by him, to Mr Adams in 2014, or the preparation of his parents’ 2014 wills. Nor did counsel ask about the actual transfer of the Lakshmi and Convulon shares in September 2014, or any advice from Mr Walker which might have preceded it.

152. [182]

     Documentary evidence: The 2019-2020 retainer of Mr Adams (see [61] above) began on 4 April 2019 when he was contacted by Ruskin and it was agreed that there was to be a meeting between Ruskin, his parents and Mr Adams on the following Friday, 12 April.

153. [183]

     In a confirmation email sent to Mr Adams on 4 April, Ruskin wrote:

154. [184]

     Mr Adams’ retainer agreement identified his clients as Ruskin, John and Karen. Client letters were addressed to the three of them at PO Box 175 Ettalong Beach and marked “by email” to Ruskin’s email address. Supplementary communications took place by email, generally between Mr Adams and Ruskin.

155. [185]

     The meeting took place on 12 April as arranged. It was attended by Ruskin, John and Karen. Mr Adams’ notes of the meeting are in evidence. They refer in various places to the need to “protect” the family assets from claim from Susannah. A family provision claim was noted as “likely”. Among the issues identified the possibility of the superannuation fund being “attacked by FPA” and the discretionary trusts (or at least the Lakshmi Trust) being “attacked by FPA” or “attacked by a beneficiary”. Clearly the last reference is to the fact that although Susannah does not appear to have been receiving any distributions, under the Trust Deed she retained her status as one of the first corpus beneficiaries.

156. [186]

     The notes also refer to a requirement to a need to ensure that Rory was properly looked after, noting that his school fees were currently being paid (whether by John or Karen, or by Ruskin, is not recorded in the note).

157. [187]

     On the following Monday morning (15 April) Ruskin sent an email to Mr Adams thanking him for the meeting and giving him a Dropbox address for the Lakshmi and Convulon Trust Deeds. The email was copied to Karen and John.

158. [188]

     Later that morning, Ruskin emailed Mr Adams a copy of a “letter of intent” signed by Karen and John. The letter was dated 11 April (the day before the meeting had taken place). It was designed to act as an explanation for the provisions which Karen and John were to make in their wills. It relevantly stated:

159. [189]

     It seems that the conference on 12 April had ended on the basis that Mr Adams would provide his advice on what the next steps should be. This written advice was eventually conveyed by client letter dated 14 August 2019.

160. [190]

     In his letter, Mr Adams began by referring to the advice he had given in 2013 and 2014 and recording details on changes to the McLennans’ financial affairs and assets since then. He then identified the issues on which he had been asked to advise:

161. [191]

     The letter went on to deal (by reference to Mr Adams’ previous advice in his letter of 22 May 2014) with who could make a claim on the McLennans’ estate, and the availability of “notional estate” to satisfy such claims. Mr Adams continued:

162. [192]

     The letter was preceded and followed by email exchanges between Mr Adams and Ruskin in which Mr Adams sought supplementary information and instructions. On 15 August Ruskin added the discretionary trust documents to which he had access to Mr Adams’ Dropbox. The documents included the trust deed for another family trust. Following a query from Mr Adams, Ruskin responded:

163. [193]

     Pursuant to the recommendation in Mr Adams’ letter that Mr Jay be briefed, Mr Adams obtained a quote from him. On 23 August, Ruskin emailed Mr Adams instructing him to proceed with Mr Jay.

164. [194]

     On 27 August Mr Adams wrote to Mr Jay providing him with various documents. These included company searches for Convulon and Lakshmi, the Trust Deeds for the Convulon and Lakshmi Trusts, John and Karen’s 2014 wills (in unsigned form), and their “letter of intent” of 11 April.

165. [195]

     Mr Adams also provided Mr Jay with the following instructions as to Susannah’s circumstances:

166. [196]

     Also on 27 August, Mr Adams issued a further client letter. Mr Adams then enclosed a copy of his letter to Mr Jay. He also asked whether John and Karen held the originals, or signed copies, of the 2014 wills, and asked to have a copy provided, and if so, he asked for a copy to be provided to him.

167. [197]

     The instructions concerning Susannah’s circumstances reflect instructions obtained by Mr Adams from Ruskin, except that Ruskin had said that he paid for Rory’s school fees and expenses. When the client letter enclosing the letter to Mr Jay was emailed to him, Ruskin replied, pointing this out. Mr Adams, however, does not appear to have altered the instructions he had given to Mr Jay. Neither Mr Adams nor Ruskin was asked about this when they gave evidence.

168. [198]

     On 3 September Mr Jay emailed to Mr Adams a draft of his advice. In the draft, Mr Jay set out his instructions on Susannah’s circumstances. These reflected the instructions provided by Mr Adams in his letter of 27 August.

169. [199]

     Mr Jay also recorded his instructions that the assets held by John and Karen personally, in the discretionary trusts and in the SMSF were valued at a total of approximately $24 million. This consisted of: personal assets of $6.25 million (the Bombi Road property ($3 million), the Rusutsu property ($3 million), and contents and personal effects ($250,000)); the SMSF ($7 million to $7.5 million); and the discretionary trusts ($10 million). These figures are substantially the same as figures provided by Ruskin in his email to Mr Adams of 15 August, apparently at Mr Adams’ request.

170. [200]

     The first question addressed in Mr Jay’s draft advice was whether the discretionary trusts could be the subject of a family provision claim by Susannah. His conclusion was:

171. [201]

     The next question considered by Mr Jay was whether, putting tax considerations to one side, any of the McLennans’ assets should be transferred immediately. He noted that, assuming that the Appointor of the Lakshmi Trust was changed and that the McLennans each lived for three more years, their estate and notional estate would be confined to their personal assets and the SMSF. He continued (at [31]):

172. [202]

     Mr Jay then turned to the question of distributing money from the SMSF. He stated (at [35]-[36]):

173. [203]

     Finally, Mr Jay addressed whether the McLennans should make any changes to their wills. After discussing some of the family provision case law, he concluded (at [44]-[50]):

174. [204]

     The copy of the draft advice which is in evidence bears annotations apparently made by Mr Adams. There are also annotations on the covering email from Mr Jay to Mr Adams. Those annotations include: “[31] – why not PPOR”. It is common ground that PPOR stands for principal place of residence and refers to the Bombi Road property and specifically the final sentence of [31] of the draft advice.

175. [205]

     On 4 September, the day after Mr Jay sent his advice to Mr Adams, four email communications took place to which Mr Adams was party.

176. [206]

     The first was an email to Mr Adams from Ruskin at 12:52 pm:

177. [207]

     Mr Adams responded at 1:43pm:

178. [208]

     At 2:31 pm Mr Adams emailed Mr Jay:

179. [209]

     At 3:10pm Ruskin replied to Mr Adams’ email of 1:43 pm:

180. [210]

     A week later, on 11 September, Mr Jay provided a final version of his advice to Mr Adams. His advice in [31] of the draft on the removal of the McLennans as appointors under the Lakshmi Trust Deed was substantially unchanged. The final sentence of [31] of the draft was however deleted and replaced by a new [32]:

181. [211]

     Mr Jay’s advice on making distributions from the SMSF was also substantially unchanged, with [35] and [36] in the draft becoming [36] and [37] in the final. The advice on changing the McLennans’ wills was likewise substantially unchanged, becoming [45] to [51] in the final.

182. [212]

     On the same day as he received Mr Jay’s advice, Mr Adams issued a formal letter of advice to the McLennans. The letter enclosed Mr Jay’s advice and provided a summary. It stated:

183. [213]

     Two months then passed. On 8 November a meeting took place between Mr Adams and Ruskin on 8 November, at which Mr Jay’s advice was reviewed. Following that meeting, Mr Adams issued a further client letter on 11 November. The letter identified five matters arising, only three of which are relevant for present purposes.

184. [214]

     The first matter concerned the Lakshmi Trust. The letter stated:

185. [215]

     The third matter arising concerned the Bombi Road property. Mr Adams sought instructions as to whether the property was to be “sold or otherwise ... transferred”, and if so to whom. He noted that taxation and financial planning implications associated with a transfer would need to be considered, and that any transfer would need to be undertaken at least three years before the death of either John or Karen if it was to be free from challenge under the Succession Act. Mr Adams also asked whether, if the property was to be transferred, “a Deed of Life Estate” was to be “created (as recommended in the Advice of David Jay)”.

186. [216]

     The fifth matter concerned amendments to the 2014 wills. Mr Adams wrote:

187. [217]

     On 25 November, Ruskin sent an email to Mr Adams in response. He asked Mr Adams to proceed with the proposed changes to the Lakshmi Trust. The other matters arising were to be the subject of discussion with Mr Jutrisa.

188. [218]

     The meeting with Mr Jutrisa took place on 2 December. It was attended by Ruskin, John, Karen and Jodie. On 4 December, Mr Jutrisa sent a follow up email to each of them. The email referred to a meeting with “your solicitor” which was to take place the following day and offered estate planning comments in advance of that meeting.

189. [219]

     The email did not refer to the proposed changes to the Lakshmi Trust. Concerning the Bombi Road property Mr Jutrisa wrote:

190. [220]

     The email went on to record that new superannuation death benefit nominations had been signed on 2 December, but recommended that further consideration be given to “enhancing” the nominations by making further “cascading” provisions for estate planning purposes. Mr Jutrisa also suggested that the McLennans consider similarly adding alternatives to their enduring powers of attorney.

191. [221]

     Mr Jutrisa ended by saying:

192. [222]

     In evidence is an email exchange between Ruskin and Mr Walker on 3 December in which Mr Walker asked Ruskin about an “alternate time” for a meeting with his parents and Ruskin responded nominating 8 am on 5 December at Bombi Road. It seems therefore that the meeting to which Mr Jutrisa referred in his 4 December email was intended to be with Mr Walker rather than Mr Adams.

193. [223]

     There is no record of the meeting in evidence. But it is referred to in an email exchange on 9 and 10 December between Ruskin and Mr Jutrisa (both emails were copied to John, Karen and Jodie):

194. [224]

     On 13 December Mr Adams issued his next client letter, which enclosed execution copies of four deeds concerning the discretionary trusts. Two of them were the deed of amendment (providing a power to nominate a new appointor) and the deed of appointment for the Lakshmi Trust to which I have already referred. I will refer to these deeds as the “Deed of Variation (Appointor)” and the “Deed of Appointment”.

195. [225]

     The other two deeds prepared by Mr Adams concerned another issue. Recent legislative amendments would result in properties held by a discretionary trust being subject to land tax unless the trust deed expressly excluded “foreign persons” from being beneficiaries. Further deeds of variation were prepared for both the Convulon and Lakshmi Trusts making this exclusion. I will refer to these deeds as the “Deeds of Variation (Foreign Beneficiary)”.

196. [226]

     The parties to the Deed of Variation (Appointor) were Lakshmi and John. The Deed provided for Lakshmi to exercise its power as Trustee to amend the Trust Deed, with John’s consent as Appointor. The amendment involved substituting a new clause 14. The new clause provided:

197. [227]

     The parties to the Lakshmi Deed of Variation (Foreign Beneficiary) were likewise Lakshmi as Trustee and John as Appointor. The only party to the Convulon Deed of Variation (Foreign Beneficiary) was Convulon as Trustee. This was because, under the terms of the Convulon Trust Deed, Convulon itself was entitled to exercise the powers of appointment under the Deed.

198. [228]

     The parties to the Deed of Appointment were Lakshmi as Trustee, John as the then current appointor, and Ruskin as the nominee for replacement of appointor. The Deed recited the terms of the Trust Deed (as amended by the Deed of Variation) and provided for John to nominate Ruskin as the new Appointor under the Deed, with Ruskin agreeing to accept appointment. Lakshmi acknowledged as Trustee that it had been notified of the nomination.

199. [229]

     In his covering letter Mr Adams recounted his instructions concerning the discretionary trusts, explained the terms of the four Deeds, and invited the McLennans to execute those Deeds. Concerning the Lakshmi Deed of Variation (Appointment) and the Lakshmi Deed of Appointment, Mr Adams wrote:

200. [230]

     The letter stated that the Deeds of Variation (Foreign Beneficiary) should be executed by 31 December. This was apparently because it was then believed that under the new legislation, 31 December was the date by which the amendments had to be made if they were to be effective. Ruskin, however, responded by email stating that he and his parents would come into the office to sign the Deeds “in the New Year”.

201. [231]

     Evidently the McLennans did not attend Mr Adams’ office to execute the Deeds as Ruskin had foreshadowed. On 28 February 2020 Ruskin emailed Mr Adams:

202. [232]

     On 4 March, Ruskin provided some supplementary instructions to Mr Adams by email. The email was copied to Karen and John. It relevantly stated:

203. [233]

     On the following day (5 March), Mr Adams replied to Ruskin by email, with copies to Karen and John. He undertook to prepare the requested amendments to the McLennans’ wills.

204. [234]

     Despite what Ruskin said in his emails of 28 February and 4 March, it appears that at least some of the Deeds were, at this stage, still unsigned. On 6 March, Ruskin emailed Mr Adams asking about how he should execute the Deed of Variation (Appointor) on behalf of Lakshmi.

205. [235]

     Ruskin obtained a valuation of the Bombi Road property for the purposes of the proposed transfer. On 18 March he emailed a copy to Mr Adams. He also said that he had “sent the signed deeds”.

206. [236]

     In order to effect the transfer of the property, the certificate of title was required. At the time it was being held for John and Karen by a firm of solicitors at Woy Woy. A safe custody receipt in evidence shows that it was collected by Karen from them on 26 March.

207. [237]

     Several months passed. On 4 June Ruskin emailed Mr Adams with a change of instructions about the Bombi Road property:

208. [238]

     On 25 June Mr Adams issued a further client letter. The letter confirmed the McLennans’ instructions that they were taking no action with respect to the Bombi Road property but that their wills should be varied as notified in Ruskin’s email of 4 March.

209. [239]

     The letter also referred to the four discretionary trust deeds. It seems that by this stage Mr Adams had received the three Deeds of Variation in executed form. He asked for the McLennans to confirm the dates on which the Deeds were signed so that he could date them. The Deed of Appointment did not appear to have been signed, and Mr Adams enclosed a fresh copy for signature.

210. [240]

     Mr Adams’ requests concerning the four deeds resulted in the following further exchange of emails between him and Ruskin:

211. [241]

     On 30 July Ruskin provided the following response and further instructions:

212. [242]

     Each of the four Deeds bears the date 6 March 2020 in handwriting (presumably that of Mr Adams). The documentary evidence does not show when the dates were written in. Both the Lakshmi Deeds of Variation were executed by Ruskin (for Lakshmi) and John; in each case John’s signature was witnessed by Karen. The Convulon Deed of Variation was executed by Ruskin for Convulon. The Deed of Appointment was executed by Ruskin (for Lakshmi), John and Ruskin (in his personal capacity). John’s and Ruskin’s signatures were witnessed by Jodie.

213. [243]

     On 4 August, Ruskin provided further instructions concerning his parents’ wills:

214. [244]

     About five weeks passed during which nothing happened at Mr Adams’ end. Ruskin emailed him to terminate the retainer. This provoked a reply from Mr Adams on 8 September. Mr Adams identified the remaining two issues as the proposed revision to John and Karen’s wills and the transfer of the Bombi Road property. He provided drafts of the new wills and the “Deed of Life Tenancy” (see [64] above) for the property following its transfer. Apparently, Ruskin was satisfied and did not go through with the termination of Mr Adams’ retainer.

215. [245]

     Over the following few days further emails passed between Ruskin and Mr Adams which resulted in some further amendments. There followed further emails between them to make arrangements for executing the documents. One of those (on 11 September) was copied to Karen and John. Eventually it was agreed that the McLennans would meet Mr Adams on 22 September at Bronte Road. This suited Mr Adams who lived nearby.

216. [246]

     The final versions of the wills reflected the instructions given in Ruskin’s email of 4 August (apart from an error referred to below which was discovered upon execution). It is unnecessary to set out the provisions in any detail.

217. [247]

     The parties to the Deed of Life Tenancy were defined as Ruskin (the “Registered Proprietor”) and John and Karen (collectively the “Life Tenant”). The recitals relevantly provided that:

218. [248]

     Clause 2 dealt with “life tenancy”. It relevantly provided:

219. [249]

     Clause 3 dealt with independent legal advice. It relevantly provided:

220. [250]

     The execution of the documents took place at Bronte Road on the morning of 22 September as arranged. In evidence is a file note by Mr Adams recording the relevant events. The note records that it was dictated by Mr Adams later on the same morning.

221. [251]

     The note begins with the following preliminaries:

222. [252]

     The note records that Mr Adams then interviewed each of John and Karen separately. It recorded the interview with John in the following terms:

223. [253]

     The note then records the interview with Karen, which took place between 9:32 and 9:45:

224. [254]

     The note next records that Mr Adams then spoke with Ruskin and obtained his signature on the transfer, the Deed of Life Tenancy and other related documents concerning the transfer of the property. Mr Adams then went to his home office and amended the wills so as to correct the errors he had discovered. He returned to Bronte Road and obtained formal execution of the wills by John and Karen. The wills were witnessed by a neighbour.

225. [255]

     The note ends with the following “assessment”:

226. [256]

     On the following day, Mr Adams issued a further client letter reporting on the execution of the documents and enclosing copies. Mr Adams noted that the transfer of title to the Bombi Road property could not take place until stamp duty and other costs (totalling $96,000) were paid.

227. [257]

     Following payment of the stamp duty and other costs, the transfer of the Bombi Road property was lodged for registration on 8 October. The Deed of Life Tenancy bears the date in handwriting (presumably that of Mr Adams) of 9 October.

228. [258]

     On 13 October Mr Adams issued his final client letter. The letter reported on the lodgement of the transfer, it enclosed copies of the new certificate of title, the registration notice for the caveat and the Deed of Life Tenancy. Mr Adams also enclosed his final memorandum of fees.

229. [259]

     Again, there is no doubt that Mr Adams’ client letters were emailed to Ruskin’s email address. As with two of the letters sent under the 2014 retainer, there is an issue as to whether they were sent to the client postal address (PO Box 175, Ettalong Beach) as well.

230. [260]

     Affidavit evidence: In John’s first affidavit, he deposed that his knowledge of Mr Adams’ 2019-2020 retainer was “largely drawn” from a copy of Mr Adams’ file, which had been provided to him by his solicitor in November 2022. He noted that the correspondence from Mr Adams was addressed to Ruskin, himself and Karen. But he deposed:

231. [261]

     The implication here was that John had seen some of Mr Adams’ correspondence after Karen’s death, before seeing “the majority” of it when his solicitor obtained access to Mr Adams’ file. Later in the affidavit, John deposed that one of Mr Adams’ formal letters, being the one dated 13 October 2020, was first seen by him among Karen’s papers (which were kept by her in a separate office) after her death. The affidavit however did not go into any detail about how John came to see that letter.

232. [262]

     The affidavit then addressed the letter of intent dated 11 April 2019 as follows:

233. [263]

     As to the meeting on 12 April, John deposed:

234. [264]

     The Affidavit made no specific mention of Mr Adams’ formal letters of 14 August and 11 September (the latter of which enclosed Mr Jay’s advice). John deposed that he never gave instructions to retain Mr Jay and was never provided with Mr Jay’s advice, either in draft or in final form.

235. [265]

     The affidavit next referred to Mr Adams’ letter of 13 December 2019 ([224] above). John deposed that he did not recollect seeing the letter before it was shown to him by his solicitors in late 2022. He did not refer to Mr Adams’ preceding letter dated 11 November ([213] above).

236. [266]

     The affidavit also referred to Ruskin’s email of 28 February 2020 ([231] above). John deposed that to the best of his recollection, he did not see the email prior to his solicitors showing it to him.

237. [267]

     John deposed that he did not recall signing either of the Deeds which accompanied the letter of 13 December. He specifically denied ever instructing Mr Adams to prepare the deeds, or instructing Ruskin to have them prepared on his behalf. He also denied receiving any advice or communication from Mr Adams as to the purpose or effect of the Deeds.

238. [268]

     John deposed that at the time, he and Karen were “reliant on the income from the Lakshmi Trust”. He pointed out that neither he nor Karen gained any benefit from the transfer. He deposed that at no point did he or Karen receive any financial advice concerning the relevant changes to the Trust.

239. [269]

     John did not deny having signed the Deeds. He suggested, however, that he did not sign them on 6 March 2020, the dates which they bear. He deposed that, to the best of his knowledge, Ruskin and Jodie were on their way back from a ski trip in Canada on that date, and that he specifically did not recall seeing Jodie on 6 March 2020.

240. [270]

     John deposed that he was told about the new wills shortly before they were executed in September 2020, when he was told by Karen that he and she “had to go in and meet” Mr Adams. He continued:

241. [271]

     John deposed that when told about the appointment by Karen, he was reluctant to attend. He did not see anything wrong with the wills that had been written by Mr Healey (presumably before 2014) and he had not given any instructions to Mr Adams to prepare a new will. He continued, however:

242. [272]

     After referring to a further valuation of the Bombi Road property obtained by Ruskin on 17 September, John bluntly deposed (strikethrough denotes text not eventually relied upon: see [375] below):

243. [273]

     The affidavit, however, acknowledged that John had been copied into at least four emails which passed between Ruskin and Mr Adams in the course of the 2019-2020 retainer, namely the emails of 15 April 2019, 4 March 2020, 5 March 2020 and 11 September 2020. John’s explanation for this was:

244. [274]

     The description in the affidavit of what happened on 22 September 2020 was as follows:

245. [275]

     The affidavit then referred to Mr Adams’ file note ([250] above). John deposed:

246. [276]

     The affidavit continued:

247. [277]

     The affidavit referred to Mr Adams’ formal letters of 23 September and 13 October 2020. John deposed that he first saw the letter of 23 September when it was obtained by his solicitor. He found the 13 October letter in Karen’s office after she died, in or about April 2022 (again there was no explanation as to how he came to do so). The affidavit did not refer to Mr Adams’ earlier formal letter of 25 June ([238] above).

248. [278]

     John deposed that he was told shortly before Karen’s death by Susannah that Ruskin was the owner of the Bombi Road property. He did not believe her. When he confirmed that this was so with his then solicitor, he was “shocked”. He deposed that he “did not fully appreciate” that the Bombi Road property had been transferred to Ruskin at the time.

249. [279]

     The affidavit referred to the safe custody receipt for the share certificate showing that it was collected by Karen on 26 March 2020. John deposed that Karen did not speak to him about this and he was unaware of it having happened. He would not have agreed to remove the certificate of title from safe custody if he had been asked.

250. [280]

     In his affidavit in response, Ruskin began by referring to his email to Mr Adams of 4 April 2019 ([183] above). He quoted from the letter of intent and deposed that he had no involvement in the drafting of it.

251. [281]

     Ruskin deposed that the meeting with Mr Adams which took place on 12 April lasted for about one and half hours. During the course of the meeting Mr Adams suggested to his parents that they should obtain independent advice Ruskin deposed that when leaving the meeting he reminded his father of this but John said that he did not need any independent legal advice.

252. [282]

     Ruskin next referred to Mr Adams’ next letter on 14 August 2019 ([190] above). He deposed that he recalled seeing a hard copy of the letter at Bombi Road, but did not say where. The further instructions which he provided in response were discussed by him with his father before the email was sent. The retainer of Mr Jay was also approved by his parents.

253. [283]

     Ruskin next referred to his email to Mr Adams of 4 September concerning Susannah’s prescription drug and alcohol problems ([206] above), and Mr Adams’ letters of advice dated 11 September and 11 November. Ruskin specifically deposed that he recollected seeing a hard copy of the 11 September letter at Bombi Road.

254. [284]

     Ruskin next referred to his dealing with Mr Jutrisa. He deposed that he and his parents met with Mr Jutrisa on 2 December. He continued:

255. [285]

     Ruskin quoted from Mr Jutrisa’s email of 4 December ([219] above). He deposed, by reference to his email exchange with Mr Walker on 3 December ([222] above), that he scheduled a meeting with Mr Walker and his parents. He did not expressly depose that the meeting actually took place, or what was said at it, but he did refer to his email to Mr Jutrisa on 9 December ([223] above) which described advice received from Mr Walker.

256. [286]

     Ruskin went on to refer to Mr Adams’ letter of 13 December; his email to Mr Adams of 4 March 2020; his further email to Mr Adams of 4 June; Mr Adams’ letter of 25 June; and his emails to Mr Adams of 3 July and 4 August.

257. [287]

     Ruskin then referred to the further emails with Mr Adams concerning the draft wills, including Mr Adams’ email of 11 September enclosing the revised wills and the Deed of Life Interest ([212] above). He deposed that he recalled helping his parents print the documents out and discussing the contents of those documents with them.

258. [288]

     Ruskin’s evidence about the meeting on 22 September at which the new wills and the Deed of Life Estate were signed was:

259. [289]

     Ruskin then responded to some particular paragraphs of his father’s affidavit. Concerning the signature date on the four discretionary trust deeds, he stated that he did not travel to Canada in 2020, although Jodie did so. He specifically disagreed with the versions of the conversations between Karen, himself and his father on 22 September 2020 set out in his father’s affidavit.

260. [290]

     John’s reply affidavit contained a response which referred to most of the documents referred to in Ruskin’s affidavit. In summary, John denied or did not recall receipt of any of Mr Adams’ letters or the attachments thereto. He insisted that the letters were only sent by email to Ruskin and asserted that neither he nor Karen used PO Box 175. He denied that documents were left lying around at Bombi Road. He deposed that if he or Karen ever received mail, “we usually looked at it, reviewed it, and I filed it away in one of the filing cabinets in my office”.

261. [291]

     John further denied or did not recall that he approved any of the contents of Ruskin’s emails to Mr Adams. He maintained that he gave no instructions for the preparation of the Deeds for the discretionary trusts, the new wills, or the transfer of the Bombi Road property.

262. [292]

     In response to Ruskin’s evidence about the letter of intent dated 11 April, John deposed:

263. [293]

     John deposed that he did not “specifically recall” the meeting with Mr Adams on 12 April 2019. He did not recall the suggestion by Mr Adams that he or Karen should obtain independent legal advice. He denied that Ruskin reminded him of any such suggestion, or that he declined the idea.

264. [294]

     John deposed that he did not “consider that all of the matters set out” in Ruskin’s email of 4 September 2019 ([206] above) were “accurate”. In particular:

265. [295]

     John deposed that he recalled going to lunch at a Chinese restaurant with Mr Jutrisa in late 2019 and also having a meeting with Mr Jutrisa, Karen, Ruskin and Jodie beforehand. He did not recall any discussion about the transfer of the Bombi Road property. He deposed that Mr Jutrisa and Ruskin did almost all the talking during the meeting. Karen and he said very little if anything. He did not recall receiving the emails exchanged by Ruskin and Mr Jutrisa on 9 and 10 December which had apparently been copied to him, or any discussion with Mr Walker.

266. [296]

     In response to Ruskin’s evidence about the meeting with Mr Adams at Bronte Road on 22 September 2020, John referred back to what he had said in his earlier affidavit. He added that he did not recall Ruskin leaving the room during the meeting apart from (possibly) going to meet his neighbour at the front door when she came to witness the execution of the wills.

267. [297]

     In his affidavit, Mr Adams referred extensively to, and quoted from, the documentary evidence of the instructions received and advice given in the course of the 2019-2020 retainer, as summarised above. It is unnecessary to summarise his evidence in this regard in any detail, as it was not in dispute. In what follows I will confine myself to Mr Adams’ evidence concerning the two meetings which he attended in the course of the retainer with the McLennans.

268. [298]

     Mr Adams gave the following evidence about the meeting of 12 April:

269. [299]

     Mr Adams gave a lengthy description of the meeting on 22 September 2020 which followed what he had said in his file note. In a conclusion he stated:

270. [300]

     Mr Adams then responded to John’s affidavits. He comprehensively denied the account given in those affidavits, pointing out the inconsistencies between what the affidavits said and what was recorded in contemporaneous documents. In particular, he denied the suggestion in John’s initial affidavit that he interviewed all of the McLennans together and allowed Ruskin and Karen to browbeat John into signing the relevant documents.

271. [301]

     As already noted, John’s supplementary affidavit of September last year did not respond to Mr Adams’ affidavit.

272. [302]

     Oral evidence of Mr Adams: In the course of his cross-examination by counsel for John, Mr Adams said that, unlike his 2013 and 2014 files, his 2019 paper file is still in existence (it is with his professional indemnity insurer). But again, no steps were taken by either of the parties to clarify whether the various items of correspondence under the 2019 retainer in the court book are copies of originals which had been posted (and if so which party had produced them), or of scanned copies which had been emailed.

273. [303]

     Counsel asked Mr Adams about Ruskin’s claim that, at their initial meeting on 12 April 2019, Mr Adams advised John and Karen to obtain independent legal advice. Mr Adams agreed with counsel’s suggestion that he considered both John and Karen to be his own clients; he was advising them on estate planning issues. On that basis it is hardly likely that Mr Adams would have advised John and Karen to consult someone else.

274. [304]

     Mr Adams expressly confirmed that he had not given such advice. It was not just a matter of having no recollection either way. He said affirmatively that he did not recommend independent legal advice to either of them.

275. [305]

     Counsel pointed out that Ruskin was also recorded as Mr Adams’ client under the 2019 retainer. Mr Adams explained this by saying that when he first received instructions it was not clear to him exactly who he would be acting for. After an initial explanation at the meeting from Ruskin, however, he appreciated that he would be acting for John and Karen only, and indeed, after that point, most of the discussion at the meeting took place between himself and Karen. Thereafter, Mr Adams saw Ruskin as merely a conduit of information and instructions between himself and John and Karen (In re-examination, Mr Adams said that he left Ruskin on the file as a client for fee recovery purposes).

276. [306]

     Counsel then turned to Mr Adams’ letter of advice of 14 August 2019 ([190] above) which followed on from the April 2019 meeting. Mr Adams explained that there was nothing sinister about the delay. It was simply pressure of work and a personal matter which had distracted him from his practice.

277. [307]

     The letter referred only in general terms to the transfer of “assets” inter vivos as a possible step to take by way of estate planning. Mr Adams said that this was the way it had been discussed at the meeting in April; there had been no specific reference to the transfer of the Bombi Road property.

278. [308]

     Mr Adams had given supplementary oral evidence in chief to the same effect (correcting an error in his affidavit). He had also said that the transfer of that property, when it occurred, was his suggestion to the McLennans.

279. [309]

     Returning to the cross-examination, Mr Adams’ August 2019 letter recommended that Mr Jay be briefed to advise. This was not recorded in Mr Adams’ file note of 12 April, but Mr Adams said that it was definitely discussed at the meeting on that date. He said that he began work on a brief to Mr Jay after the meeting and well before he had sent out his formal letter of advice. In re-examination, a draft brief to Mr Jay dated 1 May was produced to confirm Mr Adam’s evidence on this point.

280. [310]

     Counsel asked Mr Adams about his dealings with Ruskin in the days before and after the formal letter of advice was issued on 14 August. Mr Adams’ notes referred to conversations with Ruskin on 14 and 22 August, but contain no detail of what was discussed.

281. [311]

     Counsel put to Mr Adams that the proposal that the Bombi Road property be transferred to Ruskin might have been raised for the first time in one or other of the 14 and 22 August conversations. Mr Adams did not think so. According to his recollection, the discussions were instead focused on the next steps to be taken, and in particular on getting advice from Mr Jay. When pressed, however, he accepted that the transfer of assets inter vivos “could have” been a “possible” topic of conversation. Later the specific suggestion was put that Ruskin gave him instructions about the transfer of Bombi Road on 14 August, but Mr Adams again demurred.

282. [312]

     Counsel also asked Mr Adams about the notation he made when he received Mr Jay’s draft advice of 3 September in which he asked why Mr Jay had recommended, in that draft, against the transfer of the Bombi Road property. Counsel asked whether, at that stage, Mr Adams had received any specific instructions about the transfer of the property. Mr Adams replied that he was simply seeking clarification from Mr Jay about why the draft made that recommendation.

283. [313]

     Counsel pressed Mr Adams further on this question, referring to the first paragraph of his letter of 11 September which referred to Mr Jay’s advice as having “been updated to incorporate your most recent instructions…with respect to the potential transfer of property to a new trust and/or Ruskin McLennan”. Counsel suggested to Mr Adams that he “must have” discussed Mr Jay’s draft advice with Ruskin before sending the final advice with the letter of 11 September. But Mr Adams’ recollection was that he turned the draft advice around quickly rather than consulting with Ruskin (or anyone else).

284. [314]

     Counsel accepted that there was no record of any such conversation in Mr Adams’ file, but suggested that he might have spoken to Ruskin but not recorded the conversation for billing purposes. As I understood Mr Adams’ response, his practice was to keep notes of all conversations whether he billed for them or not. His practice was, however, “not perfect”. It was possible that he had had a conversation with Ruskin between 3 and 11 September which had not been recorded but it was “extremely unlikely”.

285. [315]

     Counsel then turned to Mr Adams’ meeting with Ruskin on 8 November, at which Mr Jay’s advice was discussed, and which led to Mr Adams’ formal letter of 11 November ([213] above). Counsel asked Mr Adams whether he told Ruskin at the meeting about the change between the second sentence of [31] of the draft advice and [32] of the final advice, in which Mr Jay approved a transfer of the Bombi Road property to Ruskin (subject to a life estate). But Mr Adams had no recollection of this and thought it unlikely. He said that he would have considered any differences between Mr Jay’s draft and final advice as a matter between him and counsel which did not call for discussion with his client (or his client representative, in Ruskin’s case).

286. [316]

     In response to further questioning on the topic, Mr Adams said that he thought that Mr Jay’s draft advice was not properly considered. He rejected counsel’s suggestion that he might have wished to “reassure” Ruskin about [32] in the final advice by pointing out that it had been changed from an earlier draft. Counsel put to Mr Adams that his evidence on this was a “reconstruction” and the “most likely course of events” was that he had told Ruskin about the change between the draft and final advices, but this was rejected by Mr Adams.

287. [317]

     At a later point in the cross-examination counsel asked Mr Adams about [36] of the advice, which recommended that John and Karen obtain advice from a “suitably qualified financial advisor” concerning their financial needs for the rest of their lives. Mr Adams had no actual recollection of mentioning the matter but accepted counsel’s suggestion that he “would have repeated” the importance of getting appropriate financial and taxation advice.

288. [318]

     Counsel also asked Mr Adams about Ruskin’s email of 28 February 2020, recording the McLennans’ decision to proceed with the transfer the Bombi Road property to Ruskin, with a “life tenancy” for John and Karen. Counsel contrasted this with the term “life estate” used in [32] of Mr Jay’s final advice. Mr Adams said that he did not at the time understand there to be any distinction between a “life estate” and a “life tenancy”.

289. [319]

     Counsel also questioned Mr Adams about the signing and dating of the four discretionary trust deeds which he prepared in December 2019. Counsel took Mr Adams through the correspondence, demonstrating that Ruskin had told him: first, that the deeds (or some of them) had been signed before 31 December 2019; second, that they had been signed on 6 March 2020; and third, that they had been signed on 11 May 2020. Mr Adams said only that he “did not apply his mind” to these contradictions. He was not asked about the fact that the deeds were ultimately dated 6 March rather than 23 May, which was the latest date given by Ruskin.

290. [320]

     The last major topic of Mr Adams’ cross-examination was the meeting of 22 September 2020. Counsel did not raise any questions about the accuracy of Mr Adams’ file note, or about his affidavit account which was based on that file note. In particular, counsel did not put the version of events given in John’s affidavits to Mr Adams.

291. [321]

     Counsel did return to the question of who Mr Adams was acting for. Mr Adams confirmed that he saw John and Karen as his clients, but not Ruskin. Counsel then put to Mr Adams a client authorisation form which had been signed at the meeting by Ruskin and by him under which Ruskin appointed his firm as authorised agent. But Mr Adams explained that this was solely for the purpose of effecting the transfer of the Bombi Road property via PEXA. He maintained that he considered John and Karen were his estate planning clients. He acted for Ruskin only for the purposes of effecting the transfer in accordance with John and Karen’s instructions, and as a matter of convenience.

292. [322]

     Mr Adams confirmed that in preparing the Deed of Life Estate he considered he was acting for John and Karen and was seeking to protect their interests. Counsel challenged this by reference to cl 2.3 ([248] above) which gave Ruskin a right to sell the property, not if his parents were in fact unable to live in it, but if merely if he should form the opinion that they were unable to do so. Counsel suggested that this was highly favourable to Ruskin and that Mr Adams had “lapsed” into acting in his interests. Later counsel put to Mr Adams that the Deed “fell significantly short of” the “life estate” which Mr Jay had recommended, but Mr Adams did not agree.

293. [323]

     Counsel also asked about cl 3.1 whereby John and Karen (and Ruskin) acknowledged they had had an opportunity to “undertake due diligence” and obtain independent legal advice. Mr Adams said that he had not asked John (or Ruskin) whether he had undertaken due diligence. He also said that he saw himself as providing independent legal advice to John and Karen for the purpose of cl 3.1(b).

294. [324]

     Oral evidence of Ruskin: In cross-examination, counsel asked Ruskin about the statement in his email to Mr Adams of 15 August 2019 that his father was a “poor administrator” whose paperwork was “sketchy at best” ([192] above). Ruskin said that this opinion applied to his father’s administrative skills generally, and applied to his administration of the Convulon and Lakshmi Trusts prior to Ruskin taking over the administration of those Trusts, starting in 2010. Ruskin said in particular that finding “trust deeds and other paperwork” was “sometimes difficult”.

295. [325]

     Counsel followed up by asking Ruskin about the state of his father’s memory in 2019. Initially, Ruskin said that he could not recall a “specific deterioration” in his father’s memory over the seven years from his stroke in December 2012 up until 2019. However, in the course of his answers, Ruskin appeared to accept that his father had nonetheless suffered a “normal decline” in his memory. He insisted, however, that his father was “still able to have a reasonable and rational conversation” and he was “still able to make decisions and…have a conversation”. He disagreed that his father was more forgetful in 2019 then he had been in 2012.

296. [326]

     Later in the cross-examination counsel put to Ruskin that by late 2019 John was not looking regularly at his emails. He would look at them occasionally but often would not read them. Ruskin disagreed.

297. [327]

     Counsel began his review of the documentary evidence with Ruskin’s statement in his initial email to Mr Adams of 4 April 2019 ([183] above) that Mr Jutrisa had suggested a “joint tenants’ arrangement” with respect to the McLennans’ “primary property” in the event of the death of one of them. Ruskin accepted that there was no reference to any such suggestion in the correspondence between him and Mr Jutrisa in 2017 which he had put into evidence. Nor was any such suggestion recorded in Ruskin’s affidavit version of a conversation to which he deposed he had with Mr Jutrisa in April 2017. Counsel put to Ruskin that Mr Jutrisa had never made any such suggestion as was recorded in his April 2019 email, but Ruskin did not agree. He had no actual recollection, however, of the particular occasion upon which Mr Jutrisa had made the suggestion.

298. [328]

     Ruskin confirmed that he attended the meeting of 12 April 2019 with Mr Adams which was also attended by his parents. His recollection was that he was not present throughout the whole of the meeting, and he was “recused” for a period of time. He said he had “a reasonable recollection” of what was said at the meeting, but counsel did not probe any further.

299. [329]

     Counsel next took Ruskin to Mr Adams’ letter of 14 August 2019 ([190] above). Ruskin accepted that the letter was an “accurate reflection” of what had been discussed at the meeting on 14 April, in particular in its instructions about his parents’ concern about Susannah might make a claim on their estate.

300. [330]

     Earlier in his evidence Ruskin had been asked by counsel about the alleged 2013 agreement with his father for the purchase of Lakshmi and Convulon. He accepted counsel’s suggestion that in 2019 he considered that his father was obliged under that agreement to transfer the power of appointment over the Lakshmi Trust to him. He said that there had been a conversation with his father about this at the time, even though there was nothing to that effect in his affidavit. He also said that he told Mr Adams about it, but when pressed said that he could not recall.

301. [331]

     Counsel asked Ruskin about the fact that the letter of 14 August 2109 was addressed to him and his parents at Box 175 at Ettalong Beach Post Office. He acknowledged that Box 175 was in his name, but maintained that his mother had a key at the time. He agreed that Box 84 was in his father’s name and was the mailbox his father primarily used. His mother also used that mailbox but, he said, primarily used Box 175. He said, however, that when the mail was collected, either by his parents or by him, it would be collected from both boxes.

302. [332]

     Counsel took Ruskin to the retainer agreement provided by Mr Adams in August 2019. Despite the fact that he had earlier filed a cross-claim against Mr Adams in the proceedings asserting that he was a client of Mr Adams, he said there was some doubt about whether he thought that this was so in 2019.

303. [333]

     Counsel asked Ruskin about the conversations recorded in Mr Adams’ file as having occurred on 14 and 22 August. But Ruskin was unable from recollection to recall what was in those conversations, and counsel did not probe further..

304. [334]

     Counsel then turned to Ruskin’s email to Mr Adams of 27 August, in which he gave instructions to proceed with briefing Mr Jay and provided further instructions on Susannah’s circumstances ([195] above). Ruskin could not recall any discussion with his parents on that date. He accepted that the instructions to Mr Adams, although referring to a history of alcohol abuse, did not refer drug problems or mental health problems. He denied, however, that this meant that no such problems then existed. He said that he provided the instructions in response to a request from Mr Adams, but could not remember the precise terms of the request.

305. [335]

     Counsel’s next questions to Ruskin focussed on the date 3 September 2019, which appears to be the first point in the documentary evidence where the specific possibility of the transfer of the Bombi Road property to Ruskin is mentioned (between Mr Adams and Mr Jay). Ruskin could not recall whether or not that suggestion had been made prior to that date.

306. [336]

     Counsel put to Ruskin that on 14 or 22 August he instructed Mr Adams that his parents wished to transfer the Bombi Road property to him, but had not in fact obtained their instructions to do so at the time. Ruskin disagreed. He also denied that Mr Adams communicated the contents of Mr Jay’s draft opinion to him between 3 September and the letter of advice of 11 September.

307. [337]

     Counsel turned to Ruskin’s email to Mr Adams of 4 September at 12:52 pm ([206] above). Counsel drew Ruskin’s attention to the reference to it being clearer to himself and his parents that Susannah’s prescription drug and alcohol problems had not abated. He said that this was something that he had discussed with them before sending the email. He acknowledged, however, that he had not given an account of the conversation in his affidavit. Counsel did not invite him to do so in the witness box.

308. [338]

     Counsel also took Ruskin to the statement in the email that the McLennans had “agreed” that the Bombi Road property should be “left to” Ruskin. Counsel asked Ruskin whether this was a reference to an inter vivos transfer or to transfer by will. Initially, Ruskin appeared to deny that it was a reference to an inter vivos transfer, but further questions left me uncertain about his position. In the end he said that he could not recall.

309. [339]

     Counsel then put to Ruskin that, from Mr Adams’ response at 1:43 pm that day ([207] above), it was clearly a reference to an inter vivos transfer. Pressed by counsel, Ruskin repeatedly said, “I don’t know” and “I disagree”.

310. [340]

     Counsel took Ruskin to his 3:10pm email, in which he stated that he and his parents were aware of “the taxation and financial implications of the decision we are reviewing”. Counsel suggested that at that point the McLennans had not received estate planning or financial advice as to what was being proposed, to which Ruskin answered “I don’t recall”.

311. [341]

     Counsel then took Ruskin to Mr Adams’ letter of 11 September which enclosed the final version of Mr Jay’s advice ([212] above). Counsel drew Ruskin’s attention to Mr Jay’s recommendation at [36] concerning the obtaining of advice from a suitably qualified financial advisor. The following cross-examination ensued:

312. [342]

     Counsel also drew Ruskin’s attention to the reference in the covering letter to Mr Jay’s advice having “updated to incorporate your most recent instructions”. Counsel suggested that at this point Ruskin had seen the draft advice, but he disagreed.

313. [343]

     Counsel then took Ruskin to his meeting with Mr Adams on 8 November at which Mr Jay’s advice was discussed. Counsel suggested that at that meeting Mr Adams showed Ruskin both Mr Jay’s draft advice and his final advice, and drew Ruskin’s attention to the difference between [31] of the draft and [32] of the final advice. Ruskin disagreed.

314. [344]

     Counsel also pointed out that in his affidavit Ruskin had not deposed to any conversation with his parents about the advice given, and instructions received, at the meeting. Counsel put to Ruskin that he did not discuss the meeting with his parents at all, but again Ruskin disagreed.

315. [345]

     Counsel then turned to Mr Adams’ letter of 11 November and Ruskin’s email of 25 November in response ([213] and [217] above). Counsel drew attention to Mr Adams’ statement that the McLennans were to “confirm” instructions on the sale or transfer of the Bombi Road property, suggesting that at that point no final decision had been made by them to transfer the property to him. Ruskin agreed. Counsel then went further and suggested that the McLennans had not even suggested to Ruskin that they would transfer the property to him at that point. Ruskin said that he did not recall.

316. [346]

     Counsel again noted that Ruskin did not depose in his affidavit to any discussions with his parents before sending his email of 25 November. Counsel suggested that this was because no such discussions had taken place. Ruskin disagreed but said that he could not recall the “specific details” and “specific dates” of the discussions.

317. [347]

     Counsel next turned to the meeting with Mr Jutrisa on 2 December and Mr Jutrisa’s subsequent email of 4 December ([218] above). Counsel suggested that the possibility of the transfer of the Bombi Road property was first discussed on “4 December” (meaning, presumably, the meeting on 2 December). Ruskin disagreed, but could not recall his parents making a definite statement about the matter at the meeting.

318. [348]

     Counsel took Ruskin to the “general advice warning” at the end of Mr Jutrisa’s email. The warning referred to a need to obtain advice from a solicitor or accountant or both. Counsel noted the emails in evidence which showed that a meeting had been arranged with Mr Walker, but pointed out that Ruskin in his affidavit had given no evidence that the meeting actually did take place or what was said. Counsel suggested that no such meeting took place, but Ruskin disagreed.

319. [349]

     Counsel proceeded to take Ruskin to his email to Mr Jutrisa on 9 December stating that the McLennans would accept his advice concerning the transfer of the Bombi Road property and a life estate. Counsel again pointed out that Ruskin gave no evidence in his affidavit of any discussions with his parents before sending this email, and again suggested that this was because no such discussions had taken place. Ruskin again disagreed.

320. [350]

     Counsel made a similar point about Ruskin’s email of 28 February which accepted the advice in Mr Adams’ letter of 13 December. Again, counsel pointed out that Ruskin had given no evidence of discussions with his parents about the advice was discussed and it was agreed that the instruction would be given. Ruskin said that he discussed estate issues with his parents “regularly” but was unable to give more specific details. He denied counsel’s suggestion that there had in fact been no discussion with his parents and no instruction given by them.

321. [351]

     Counsel took Ruskin in detail through the various contradictory statements in the evidence about when the four discretionary trust deeds prepared by Mr Adams in December 2019 were executed. Ruskin agreed that he would have understood from Mr Adams’ letter of 13 December that at least the Deeds of Variation (Foreign Beneficiary) needed to be executed by 31 December, but seemingly had not been. He denied counsel’s suggestion that he “knowingly lied” to Mr Adams about this matter.

322. [352]

     Ruskin acknowledged that he did not give any evidence in his affidavit about when the deeds were actually executed. Nor was any evidence given by Jodie, who had witnessed the execution of the Deed of Appointment. Ruskin said that he had no recollection of the circumstances in which the deeds were executed, or of any discussion with his parents about the subject.

323. [353]

     In the course of the cross-examination, the following exchange occurred concerning what Mr Adams’ letter of 25 June 2020 ([238] above):

324. [354]

     Counsel suggested that the lack of information about the execution of the deeds, and the conflicting statements about the execution dates, were not merely the product of mistakes or lack of recollection about matters of detail. The explanation was more sinister than that. Counsel put to Ruskin that he “misled his parents about the importance of the documents”. Counsel suggested that Ruskin deliberately created confusion about the date of execution of the documents because giving a precise date would make it easier for his father to remember what had actually happened. Ruskin rejected both of these suggestions.

325. [355]

     Counsel made a similar suggestion about Ruskin’s email to Mr Adams of 4 June in which he said that the Bombi Road property was to be left in his parents’ name. Ruskin said that this email was based on a conversation which he had with his parents shortly before it was sent. They were concerned about the high cost of the transfer of the property in particular the stamp duty. The share market was in a difficult position (this was at the time of the Covid-19 pandemic) and they thought that it was better to put a stop to the transfer. Ruskin agreed with counsel, however, that no such conversation had appeared in his affidavit evidence.

326. [356]

     Counsel put to Ruskin that what really happened was that he finally revealed to his parents that he had been giving instructions to Mr Adams about the transfer and they rejected the idea. Ruskin had not wanted to put the conversation in his affidavit for fear that this would trigger a recollection in his father’s fading memory. These suggestions were rejected by Ruskin.

327. [357]

     When counsel came to Ruskin’s email of 30 July in which he instructed Mr Adams that the transfer of the Bombi Road property was on again, counsel took a similar line. Again counsel noted that Ruskin’s affidavit did not describe any discussions with his parents. Counsel put to Ruskin that this was because what had really happened was that the McLennans had resisted the idea of a transfer and only agreed to it under pressure. Counsel further suggested that Ruskin’s threat to terminate Mr Adams’ retainer was the result of impatience on his part because he wanted the transaction completed as quickly as possible lest his parents changed their minds. Again Ruskin rejected these suggestions.

328. [358]

     Counsel next pointed out that, again, after Mr Adams drafted the wills and submitted them for approval, Ruskin gave no evidence of discussions with his parents. Again, Ruskin rejected the suggestion that no such discussions had taken place.

329. [359]

     Counsel then came to the meeting at Bronte Road on 22 September at which the wills, the transfer and the deed of life tenancy were signed. Counsel put to Ruskin that his father had not agreed to the meeting and was angry about it. He only reluctantly came to the meeting thereafter. Ruskin rejected these suggestions.

330. [360]

     Counsel did not put to Ruskin the evidence in his father’s affidavit that he and his mother browbeat his father into signing the documents in front of Mr Adams. Indeed, counsel expressly put to Ruskin that Mr Adams saw Ruskin and each of his parents individually at the meeting. Ruskin agreed and said that he could not hear what was said to his parents by Mr Adams because he was out of earshot upstairs.

331. [361]

     John’s financial circumstances for the purposes of his family provision claim were set out in a separate affidavit, made in March last year. Karen’s superannuation benefit from the SMSF which was paid out to John following her death was $4.703 million. John also received the assets remaining in Karen’s name. These were: bank accounts held in her name; loans to Lakshmi and Convulon ($258,000); her share of the Rusutsu property; and jewellery (estimated by Ruskin to be worth $150,000).

332. [362]

     John’s affidavit stated that he had just over $4 million in cash. His superannuation balance was $2.8 million. He also owns 30% of the Rusutsu property, but there appears to be no current valuation of this asset in evidence.

333. [363]

     According to John’s affidavit, he was drawing $180,000 per annum by way of pension from his superannuation, and receiving $150,000 in interest. Some of this would be taxable, but no taxation details were provided, and John’s 2022 and 2023 tax returns had not been done.

334. [364]

     John’s affidavit acknowledged that from about 2014 onwards, Ruskin handled the payment of schooling and other expenses for Rory (as identified by Susannah). John deposed that his understanding was that the costs were paid (indirectly) out of income from the discretionary trusts. John deposed that since Karen’s death, Ruskin had stopped making the payments, as a result of which “he was now paying costs associated with Rory and Susannah”.

335. [365]

     John deposed that since Rory finished school at the end of 2022, he had embarked on university studies, and had been supported by John in that endeavour. Rory apparently continued to live at the rented flat where he had lived during his final years of secondary school, with John paying the rent. The arrangement ceased at the end of 2023 and Rory moved to Bombi Road and continued his studies from there.

336. [366]

     John deposed that all of the household expenditure at Bombi Road was paid by him, and he did not ask Susannah (or, later, Rory) to contribute. As well as covering Susannah’s living expenses John also paid some of her personal expenses such as telephone and car insurance. John also deposed to making gifts totalling more than $70,000 to Susannah and Rory over the preceding two years.

337. [367]

     John suffered his stroke on 23 May this year. A neurologist’s report dated 6 June stated that his prognosis was uncertain. His life expectancy could be measured in days or years.

338. [368]

     A rehabilitation report dated 22 August recorded: “Mr McLennan is non-ambulant, requires assistance with most activities of daily living, has cognitive and communication impairments, and is at high risk of falls. It stated that John was “deemed suitable for discharge”, but could not return to Bombi Road until various home renovations and other arrangements had been made, including arrangements for round-the-clock supervision and care.

339. [369]

     I received the benefit of lengthy written submissions from counsel for both sides. These submissions were supplemented by oral closing submissions and further written schedules of evidentiary analysis, which were completed shortly after the hearing. The form and sequence of the written submissions constitute the context for the way in which the factual issues fell out for determination, and should therefore be briefly described.

340. [370]

     The written closing submissions from counsel for John focused mainly on the relevant legal principles and their application in the context of the particulars of unconscionable conduct given in the statement of claim (I set these out later in the judgment). They did deal in some detail with Ruskin’s credibility as a witness and did address the evidence on some factual questions. But they did not set out to identify, in a comprehensive way, what was factually in issue and not in issue, or the factual findings which I was invited to make.

341. [371]

     Counsel for Ruskin, in their written closing submissions, addressed the facts more comprehensively. The submissions were accompanied by a series of schedules which addressed, among other things, inconsistencies between John’s affidavit and other evidence in the case, and the evidence of meetings attended by, and addressed to and emanating from John and Karen.

342. [372]

     This led the plaintiff to reply with expanded versions of the schedules which included a response to each of the schedules. Counsel also produced a further written submission. Part A was described as a “statement of contended facts” on John’s behalf. Part B consisted of closing submissions in reply.

343. [373]

     Overall, the effect was that the arguments about the facts from counsel for John emerged by way of reply to the submissions presented by counsel for Ruskin. This is significant, because the onus of proof on disputed factual issues lay with John, not Ruskin. Furthermore, the “statement of contended facts” still focused on the allegations made in the particulars and did not constitute a comprehensive statement of what was and was not factually in issue.

344. [374]

     Witness credit: It was clear from the opening submissions from counsel for Ruskin that the credibility of John’s affidavits would be challenged, in particular because of the stark conflict between that affidavit evidence and Mr Adams’ evidence about the course of events at the meeting on 22 September 2020 when John’s and Karen’s new wills were signed. As already noted, John’s version of events in this regard was not even put to Ruskin during Ruskin’s cross-examination.

345. [375]

     After the cross-examination, counsel for John acknowledged that “some” of John’s recollection was “flawed” and at odds with the “objective” evidence. Counsel undertook to review John’s affidavits and identify passages which were no longer relied upon. This task was undertaken, and on the following day counsel produced redlined versions of the affidavits with passaged which were no longer relied upon struck out. Among those passages was John’s account of the meeting on 22 September 2020 after Mr Adams arrived.

346. [376]

     In closing submissions, counsel for Ruskin submitted that even what remained of John’s affidavit evidence had little credibility. Counsel first made the basic point that, since it had not been possible for John to be cross-examined, the evidence in his affidavits had diminished weight on that account alone. Counsel also produced a detailed schedule identifying numerous passages in the affidavits which, in counsel’s submission, were either glaringly improbable or directly conflicted with documentary, or other reliable, evidence. Counsel noted that a few of those passages might have been withdrawn, but the fact that they had been included in the affidavit in the first place was still detrimental to the affidavits’ overall credibility.

347. [377]

     In their reply, counsel for John provided responses to the points identified in their opponents’ schedule. I deal with many of these in addressing the relevant disputed areas of fact below. Counsel effectively asked me to accept all of John’s evidence, to the extent that it had not been withdrawn, although in some instances the submission was put somewhat faintly.

348. [378]

     Counsel also sought to support the affidavit evidence by reliance on the provisions of John’s 2022 will, by which he disinherited Ruskin, removed all of the trusts in favour of his grandchildren (including Rory), and left his entire estate to Susannah. Counsel argued that these provisions “should be understood as an indication of how [John] viewed the relevant past events”.

349. [379]

     As already noted, counsel for John had not challenged Mr Adams’ credit in cross-examination. In their closing submissions, they identified one piece of evidence given by Mr Adams in cross-examination which they asked me to find was an inaccurate reconstruction, but an innocent one. Counsel did not otherwise ask me to make any finding contrary to Mr Adams’ evidence.

350. [380]

     Counsel for Ruskin submitted that Mr Adams was an independent witness whose evidence had been entirely unshaken in cross-examination. They invited me to accept his evidence in whole.

351. [381]

     By contrast with Mr Adams, counsel for John attacked Ruskin’s evidence as unsatisfactory and “obstructionist”. Counsel noted that he said that he did not recall more than 150 times in his cross-examination. They quoted several passages where they said it was clear that he was simply repeating this phrase in order to stave off the questioning.

352. [382]

     Counsel also submitted that various specific aspects of Ruskin’s evidence were damaging to his credit.

     1. (1)

        Counsel submitted that his evidence about the alleged 2013 agreement to purchase the shares in Convulon and Lakshmi for $1.18 million was implausible.

     2. (2)

        So too in counsel’s submission was Ruskin’s denial that his parents had not received financial advice as to their future needs. Counsel pointed out that having denied this proposition, Ruskin was unable to give any account of them in fact receiving any such advice.

     3. (3)

        The conflicting statements in Ruskin’s correspondence with Mr Adams about when the four deeds concerning the discretionary trusts were signed could not, on any view, all be true. Counsel submitted that Ruskin had apparently lied to Mr Adams about the matter. His evidence in cross-examination on the topic, in which he said repeatedly that he did not remember, only added further to his discredit.

     4. (4)

        Counsel noted that, while maintaining that he had regularly discussed estate matters with his parents, Ruskin had failed in his affidavit evidence to give any account of those conversations. In particular, there was no explanation of the various conflicting instructions relayed by Ruskin to Mr Adams in 2020 concerning the transfer of the Bombi Road property. Counsel noted that when cross-examined on this subject again Ruskin proved unable to recall any detailed conversations.

     5. (5)

        In correspondence prior to the trial, Ruskin instructed his solicitors to deny that any written agreement between himself and his parents existed concerning the Rusutsu property, only for an agreement later to be produced at trial. No explanation was offered for the apparently false instructions given by Ruskin to his solicitors.

353. [383]

     For their part, counsel for Ruskin acknowledged that some aspects of Ruskin’s evidence (such as the Rusutsu loan agreement and the execution dates of the four discretionary trust deeds) were unsatisfactory. Counsel also acknowledged that at times in his evidence he appeared to have been too ready to answer “I don’t recall” to questions asked of him. Counsel attributed this, however, to tiredness and lack of concentration, rather than a desire to evade the questioning.

354. [384]

     Counsel submitted that, subject to these qualifications, Ruskin’s evidence was generally truthful. According to counsel, he made appropriate concessions and did not proffer self-serving evidence.

355. [385]

     2014 wills and share transfers: As already noted, in John’s affidavits he deposed that he only remembered meeting Mr Adams once before executing the second set of new wills on 22 September 2020; that he did not give any instructions for the preparation of any new wills; and that he did not receive any legal or accounting advice in connection with the wills or related transactions. Counsel for Ruskin attacked these submissions as they applied to the events of 2011-2014. Counsel pointed to:

     1. (1)

        Ruskin’s memorandum to Mr Walker of 20 March 2011, which was copied to John and his solicitor Mr Healey;

     2. (2)

        the meeting with Mr Walker on 28 March 2011, which was attended by John;

     3. (3)

        Ruskin’s email to Mr Walker of 20 November 2012 which expressly refers to a conversation between him and John and was copied to John;

     4. (4)

        the meeting with Mr Adams on 28 February 2014, which was attended by John and Karen;

     5. (5)

        Mr Adams’ client letter of 18 March 2014;

     6. (6)

        Mr Adams’ further client letter of 22 May 2014, with the accompanying evidence that the letter was sent by email to John and Karen;

     7. (7)

        the meeting with Mr Walker on 2 June 2014, which was attended by John;

     8. (8)

        the meeting with Mr Adams on 3 June 2014, which was attended by John and Karen, at which the 2014 wills were signed;

     9. (9)

        the email sent to Mr Walker by Ruskin later on 3 June 2014, which was copied to John; and

     10. (10)

         Mr Adams’ further client letter of 12 June 2014.

356. [386]

     Counsel for Ruskin also invited me to disbelieve the passages in John’s affidavits where he deposed that he was unaware that he had ceased to be a director of Lakshmi and Convulon, or that his and Karen’s shares in the companies had been transferred to Ruskin. Counsel pointed to the share transfers and resignations which on their face were duly signed by John and Karen on 1 September 2014.

357. [387]

     In passing, counsel for Ruskin invited me to reject the evidence in John’s affidavits that since early 2014 Ruskin dealt with CBA without his (John’s) consent, and left him without access to bank statements or the ability to use the newly established accounts. Counsel pointed to:

     1. (1)

        the emails from John himself which showed him dealing with bank officers;

     2. (2)

        the email evidence which showed that John and Karen attended the bank meeting on 28 February 2014 alongside Ruskin;

     3. (3)

        the further emails showing that internet access was provided for John and bank statements were sent to PO Box 84, which, on John’s own evidence, was the postal address which he used;

     4. (4)

        Ruskin’s email to Mr Walker of 28 May 2014 reporting on the new banking arrangements and which does not seem to have been questioned by Mr Walker at the meeting with Ruskin and John on 2 June.

358. [388]

     In reply, counsel for John invited me to accept his evidence that he did not recall the meeting with Mr Walker on 28 March 2011 and his denial that he received a copy of Ruskin’s memorandum. Counsel did not dispute that John and Karen attended meetings with Mr Adams on both 28 February and 3 June 2014. In that regard, counsel acknowledged that, according to John’s affidavits, he could not recall “the detail” of the 28 February meeting. Counsel observed, however, that Mr Adams had “no independent recollection of this meeting either”.

359. [389]

     Counsel did not dispute that the emails addressed to John would have reached him but reminded me that the email of 20 November 2012 was sent not long after John’s stroke, and John expressly said that he could not recall having received it. As to the other emails, counsel relied on the evidence in John’s affidavits that he did not regularly check his email accounts. Counsel also noted that the 3 June 2014 email to Mr Walker was also only produced after John became incapacitated, and therefore it had been impossible to obtain instructions on it.

360. [390]

     Counsel could not deny that Mr Adams’ client letter of 22 May was sent to John’s email address. But counsel submitted that, while copies of the other client letters had been emailed to Ruskin, there was no sufficient evidence that the originals had been posted as well (or, if posted, read by John).

361. [391]

     As to the Lakshmi and Convulon documents dated 1 September 2014, which included the share transfers, counsel merely stated that they did not dispute that John signed the documents in question. They offered no further explanation.

362. [392]

     In their submissions, counsel concentrated on the position of John. They offered no explanation for why, to the extent that Karen received emails (or client letters, if indeed sent by post), she would not have read them. Nor did they offer any explanation for why Karen would not have shared any information she received, from any source, with John.

363. [393]

     Counsel did however seek one positive finding concerning John and Karen’s dealings with Mr Adams and Mr Walker. Counsel reminded me of Mr Adams’ recommendation in his client letters that an amendment be made to the power of appointment in the Lakshmi Deed. Counsel noted that no action was taken about this. They asked me to infer that this was because John and Karen had decided against making any such change (the recommendation was made in each of the letters of 18 March, 22 May and 12 June; counsel did not seek to reconcile their argument with their submission that there was no evidence that John had received the letters of 18 March or 12 June, and no evidence that John had read (or, presumably, otherwise become aware of the content of) the letter of 22 May; nor did they address Karen’s position at all).

364. [394]

     As to the establishment of the new banking facilities with CBA, counsel for John did not dispute that John wrote and sent the emails from his email address. Nor did counsel contest that those emails which were addressed to John would have reached him. They simply observed that some at least of the emails were produced after John had been incapacitated, and noted the evidence in John’s affidavits that he did not regularly check his emails. They said nothing about Karen’s involvement, and made no suggestion that there was any evidence that she lacked access to CBA internet banking or bank statements.

365. [395]

     Counsel maintained that I should accept the claim in John’s affidavits that he never received any statements and was unable to operate the accounts. They noted that, in the course of the proceedings, Ruskin had agreed to provide an account of payments by him from his parents’ bank accounts (see below). Counsel suggested that if Ruskin was accepting an obligation to account, this demonstrated that the payments had been made by him and not by his parents themselves.

366. [396]

     2020 wills and other transactions: Counsel for Ruskin challenged the claims in John’s affidavits that, so far as he was aware, Susannah had been a teetotaller since 2015, and even before then that he had not been concerned about her drinking habits. Counsel referred to Mr Adams’ unchallenged evidence about the instructions he received to try to protect John’s and Karen’s estates from potential claims by Susannah, and the reasons for those instructions.

367. [397]

     Counsel also challenged the claims in John’s affidavits about only having met Mr Adams once before September 2020, not having given any instructions for changing his will or for the other transactions, and for not having received any legal advice (from Mr Adams or Mr Jay) or any financial or accounting advice, so far as those statements applied to the period prior to the meeting on 22 September 2020. Counsel referred me to:

     1. (1)

        the meeting with Mr Adams on 12 April 2019, which was attended by John and Karen;

     2. (2)

        Mr Adams’ client letters of 14 August, 27 August (enclosing a copy of the letter to Mr Jay), 11 September (enclosing Mr Jay’s final advice) and 11 November 2019;

     3. (3)

        the meetings with Mr Jutrisa on 2 December 2019 () and with Mr Walker on 5 December, both attended by John and Karen, and associated emails which were copied to John and Karen;

     4. (4)

        Mr Adams’ further client letters of 13 December and 17 December 2019;

     5. (5)

        Mr Adams’ email to Ruskin, copied to John and Karen, of 5 March 2020, responding to Ruskin’s email setting out what purported to be instructions given to him by his parents concerning the revision of the will;

     6. (6)

        Mr Adams’ further client letter of 25 June 2020.

368. [398]

     Finally, counsel challenged John’s affidavit evidence concerned with the events of 22 September 2020 itself, and in particular the account in which Mr Adams supposedly witnessed John repudiating the new will and then being browbeaten by Karen and Ruskin into accepting it and the claims that none of the documents were explained to him; that he did not understand that he and Karen were transferring Bombi Road to Ruskin, and that Mr Adams did not explain the documents to him as described in Mr Adams’ file note. Counsel pointed out that this evidence was flatly inconsistent with Mr Adams’ duties as a solicitor and with the express terms of his file note.

369. [399]

     In reply, counsel for John stressed that John’s affidavits repeatedly and consistently maintained that, so far as he was concerned, Susannah did not have an alcohol problem. And the first person to mention the supposed problem to Mr Adams had been Ruskin.

370. [400]

     On the meetings and correspondence with Mr Adams, Mr Jutrisa and Mr Walker, counsel for John took the same line as they had taken on the equivalent documentary evidence from 2011 to 2014. Counsel did not dispute that the emails addressed to John would have reached his email account, but relied on the evidence in his affidavits that he did not regularly look at such emails. To the extent that John had referred to any of the meetings in his affidavit, his evidence was that he could not recall the meetings or at least, could not recall them in detail. And again, there was insufficient evidence, in counsel’s submission, to conclude that the client letters, as well as being emailed to Ruskin, were posted to the address shown on them – PO Box 175 – or that, if posted to that address, they reached John.

371. [401]

     Again, these submissions were confined to John’s position. Counsel did not address what Karen might have learned (or what instructions she might have given) at the meetings she attended; or what she might have learned from correspondence she received, or indirectly through Ruskin; or how much of that information she might have imparted to John.

372. [402]

     Again, counsel did make one affirmative submission concerning the course of events. This concerned the statement in Mr Jay’s draft advice of 3 September 2019 that he did not recommend an inter vivos transfer of the Bombi Road property, which was queried by Mr Adams and reversed in the final version of Mr Jay’s advice on 11 September. Counsel urged me to find that Ruskin was aware of the view expressed in the draft advice at the time, and therefore, so it was said, knew that Mr Jay had initially recommended against such a transfer.

373. [403]

     In advancing this submission, counsel fastened on the email sent by Ruskin to Mr Adams at 12:52pm on 4 September which referred to the McLennans’ remaining assets being transferred into a trust to be controlled by Ruskin and the Bombi Road property was to be “left to” him ([206] above). Counsel submitted, in particular relying upon Mr Adams’ response to Ruskin at 1:43pm ([207] above), that this was a reference (in fact the earliest reference recorded in the documentary evidence) to the inter vivos transfer of the property. Counsel proposed that following receipt of Ruskin’s 12:53pm email, he and Mr Adams must have spoken, and Mr Adams must have told him about the opinion expressed in Mr Jay’s draft advice on the subject, resulting in Mr Adams’ request to Mr Jay for clarification.

374. [404]

     Counsel acknowledged that when this had been put to Mr Adams in cross-examination, he had rejected it. But counsel invited me to dismiss this part of Mr Adams’ evidence as a reconstruction, albeit an innocent one. It was said to be inconsistent with the statement in Mr Adams’ client letter of 11 September, which described the recommendation about the transfer of the Bombi Road property as stemming from “your” (meaning Ruskin’s, ostensibly on behalf of John and Karen) proposal for an inter vivos transfer of the Bombi Road property.

375. [405]

     Counsel pressed the submission that, if Ruskin had not been told about the draft advice concerning Bombi Road on 4 September, he was told about it at his meeting with Mr Adams on 8 November, when they discussed Mr Jay’s advice. Counsel did not, however, address directly Mr Adams’ evidence in cross-examination rejecting this suggestion.

376. [406]

     Counsel also appeared to maintain the allegations put to Ruskin in cross-examination that he deliberately obfuscated the date the four discretionary trust deeds were signed so as to confound his father’s fading memory and the reason for the toing and froing in the instructions given to Mr Adams’ about the transfer of the property was that his parents had initially resisted the idea until he eventually overbore them.

377. [407]

     As to the events of 22 September 2020, counsel did not attempt to defend John’s affidavit account of the meeting after Mr Adams’ arrival. They merely noted that the relevant passage had been withdrawn and stated that no further response was required.

378. [408]

     However, the preceding paragraphs in the affidavit, with their claims about John protesting to Karen and Ruskin that Mr Adams was not his solicitor and that the new wills were unnecessary, were not withdrawn. Nor was the later affidavit evidence that John was unaware of the transfer of the Bombi Road property until after Karen’s death and was “shocked” to find out about it from Susannah. As I understood them, counsel maintained that I should accept this evidence along with the other portions of John’s affidavits which were pressed.

379. [409]

     Witness credit: There was no dispute that Mr Adams was a generally credible witness. I have rejected the one specific challenge made to his testimony. Mr Adams could not have been expected to have an independent recollection of events and conversations in detail, especially from 2013-2014, and he did not claim to do so. But within those limits I accept his evidence unreservedly.

380. [410]

     By contrast, John’s affidavit evidence is difficult to accept. To begin with, there are some features of the way the affidavits are framed which do not inspire confidence.

381. [411]

     The first is that the affidavits go out of their way to put Ruskin in a bad light. An example of this is the gratuitous denigration of Ruskin’s efforts during the time when he was managing the Convulon and Lakshmi properties alongside his father. These observations had no apparent relevance to the claims made by John in the proceedings.

382. [412]

     So far as John’s affidavits touched on Susannah’s conduct, a similar process seems to have been at work in the opposite direction. The affidavits seemingly go out of their way to present Susannah’s conduct favourably. The clearest example was their insistence that John held no concerns about Susannah having put her problems with alcohol behind her. I have concluded below that this evidence was false. For present purposes, however, there is another point. As will be seen, counsel for John in final submissions effectively acknowledged that the concerns did exist, and built them into their arguments in support of John’s claims. The evidence was thus not only false, but irrelevant.

383. [413]

     Next there are the shifts and embellishments between John’s initial affidavit of February 2023 and his reply affidavit of November that year. The clearest instance concerned the letter of intent dated 11 April 2014. In John’s original affidavit, he sought to explain his signature on the letter as a result of being browbeaten by Karen; Ruskin’s name was not mentioned. But in the reply affidavit, in response to testimony from Ruskin that he had not been involved in preparing the letter, a much embellished story emerged in which John purported to recall Ruskin’s involvement both in drafting the letter and in browbeating him into signing it. No explanation was offered for why this story only appeared nine months afterwards.

384. [414]

     But the content of the affidavit evidence raises even more profound problems. The most spectacular example is the evidence in John’s original affidavit about the meeting with Mr Adams on 22 September 2020. The affidavit was expressly prepared with the benefit of Mr Adams’ file note. It accused Karen and Ruskin of grotesquely overbearing behaviour, and Mr Adams of conniving in that behaviour. It squarely alleged that the file note was incorrect, and in fact Mr Adams had never, as his obligations as a solicitor required, spoken to John alone.

385. [415]

     This part of the affidavit was a full-frontal challenge to Mr Adams, who responded to it at length. As already noted, the relevant passage was read into evidence but then reliance on it was abandoned before Mr Adams gave evidence. Mr Adams’ account, which was amply supported by his file note, was not challenged. An honest mistake is impossible. I can only conclude that the passage in question was fiction from beginning to end.

386. [416]

     It is of course true that a witness who gives false evidence on one subject may be telling the truth on another. But in such a case the witness’s evidence on the two topics cannot necessarily be compartmentalised either.

387. [417]

     The passage of evidence to which I have been referring illustrates this. Although reliance on it was abandoned, counsel for John continued to rely on adjacent passages concerning supposed conversations with Karen and Ruskin about the new wills in the days leading up to 22 September, and before Mr Adams’ arrival at Bronte Road on that day, in which the same overbearing behaviour was described.

388. [418]

     It seems that I am being asked to find the overbearing conduct of Karen and Ruskin suddenly ceased minutes before Mr Adams’ arrival, yet in some way remained effective, even though Mr Adams interviewed John separately, diligently took him through the terms of the wills and the deed of life tenancy, and noticed nothing wrong. With all respect to counsel, that would be an absurd finding to make. The only sensible conclusion to draw is that the earlier passages in John’s affidavit are just as fictitious as his description of the meeting with Mr Adams itself.

389. [419]

     This is only the most spectacular example of the claims being made in the affidavits which came unstuck. In fact, I have rejected most, if not all, of the critical factual allegations in the affidavits, finding that they are too implausible to be believed or are actually contrary to other evidence.

390. [420]

     It is clear that the affidavits were prepared with a sense of grievance towards Ruskin. Whether some of those grievances may have been justified is not something which will, or even can, be fully resolved in these proceedings. But even if some of them are, John’s affidavits are virtually worthless as evidence. The falsehoods, distortions and outright fiction are such as to call into question how the affidavits could have been prepared and sworn in the first place.

391. [421]

     It is true that, as counsel pointed out, that the affidavits reflect the same sense of grievance against Ruskin as is reflected by John’s testamentary arrangements in late 2022. But that does not make them any more reliable. All it does is to raise further questions as to the integrity of the process which resulted in those revised testamentary arrangements.

392. [422]

     Ruskin’s credibility did not emerge unscathed from the proceedings. Some of the descriptions in the conversations reported in his affidavit contain self-serving elements which I thought were suspect. I have also rejected his evidence on some points as reconstruction.

393. [423]

     But I think that the criticisms by counsel for John of Ruskin’s testimony went too far. In particular, I was not persuaded by the complaint about a lack of detail in Ruskin’s evidence about conversations between himself and his parents, and about the meetings he attended with Mr Adams, Mr Walker and Mr Jutrisa.

394. [424]

     Ruskin’s evidence on these topics must be seen in context. He was a defendant responding to allegations made by his father as plaintiff. His father’s principal affidavit simply ignored many of the critical events and the documentary evidence concerning them. Ruskin’s affidavit in response drew attention to many of those documents. I do not think there is anything suspicious in his failure to refer in his response to all of the documents, or to give a chapter and verse account of each of the relevant conversations or meetings. That was a task for John to do, if he could.

395. [425]

     I was left with the impression that Ruskin has little actual recollection of what was said during the many conversations and meetings which took place between 2011 and 2014 and again between 2019 and 2020. He may also have difficulty in recalling the precise sequence of events, and in avoiding unwitting reconstruction. I do not find that surprising or suspicious.

396. [426]

     Nor is it of critical significance. Even where there is no record of what happened during meetings or conversations, that can in many cases be sufficiently deduced from the surrounding documentary evidence. I saw nothing in that documentary evidence which suggested that Ruskin was attempting to deceive his parents or to advance his own interests at their expense.

397. [427]

     I do agree that there were passages in Ruskin’s oral evidence where he had given up on searching his recollection and was merely saying “I don’t recall” in order to stave off further questioning. Unsatisfactory as that is, it did not leave me the impression that otherwise his evidence was necessarily unreliable. Putting aside the self-serving material in Ruskin’s affidavits, there is simply no comparison, in terms of credibility, between Ruskin’s evidence and the affidavits put forward under his father’s name.

398. [428]

     2014 wills and share transfer: I do not accept the allegations in John’s affidavits that he was somehow kept in the dark about his and Karen’s financial and legal affairs. The emails in evidence show that, at least in early 2014, John was sending his own emails from his email account. There is no dispute that the emails addressed to him which are in evidence would have been available to him to read. Whether he did so or not is impossible to say with certainty, but if he did not, that was his own choice.

399. [429]

     In fact, I am not affirmatively satisfied that by 2014 John had adopted the practice of ignoring his emails. Still less am I satisfied that any such practice was so engrained that Ruskin would have known that even if an email was addressed to his father, it would not be read.

400. [430]

     Nor can I be satisfied that John did not receive the memoranda written by Ruskin and addressed, or copied, to him. In fact it is clear that Ruskin’s memorandum to his parents of 10 February 2013 was circulated, because a copy was found in Karen’s office after her death (see [86] above).

401. [431]

     The discovery of this memorandum illustrates a further point. There is no evidence of a comprehensive search for relevant documents having been undertaken in Karen’s records, or in John’s for that matter (apparently they had separate offices, each with their own files). Nor has any explanation been offered for that. On the face of it, John could have undertaken such searches in 2023 and reported the outcome in his affidavits. Even after he suffered his stroke earlier this year, searches could have been undertaken, and evidence given of the results, by Susannah or by John’s solicitors. In the absence of such evidence, it is perfectly possible that the memoranda addressed to John are still in existence at Bombi Road. Of course, even if searches had been undertaken and nothing had been found, it would not prove that the memoranda had not been received and discarded by John at some point in the past.

402. [432]

     There is no apparent reason why Ruskin would have put his father’s name on a memorandum as addressee and not delivered it to him. There is evidence that at least one of the memoranda was circulated to Karen. On balance, I think that it is more probable than not that the memoranda were delivered to John. But as John bears the onus of proof on this issue, even if such an affirmative finding were not justified, that would make little practical difference.

403. [433]

     It is less easy to reach an affirmative conclusion about whether Mr Adams’ original client letters of 18 March and 12 June 2014 were posted to John and Karen as well as sent by email to Ruskin. Mr Adams was not in a position to say definitively that the letters would have been so sent. The “emailed” stamps on some of the letters are suggestive, but insufficient work was done on identifying where the copy documents in the court book originally came from to allow any firm conclusion to be drawn.

404. [434]

     I am therefore not affirmatively satisfied that the client letters were posted. But on the other hand, I consider that John’s evidence falls far short of proving to the contrary, especially given the absence of evidence of comprehensive searches having been made at Bombi Road.

405. [435]

     Nor do I accept that, following the transfer of John’s and Karen’s banking facilities to CBA, John was unable to find out what was happening with his money. The emails in evidence flatly contradict his assertion that bank statements were never sent to him. They also show that internet banking access to his account was arranged for him. Even if there was a period of time during which bank statements were sent elsewhere, he would have been able to get access to such statements in electronic form through the internet banking system. If it be correct that John did not make use of these facilities, then again this was his own choice and not something imposed upon him by Ruskin.

406. [436]

     I must also reject the assertion in John’s affidavits that he did not understand that Mr Adams was acting for him, and thought that Mr Adams was acting for Ruskin instead. John was an experienced businessman who would have had a long track record in dealing with accountants and lawyers, including Mr Walker and Mr Healey.

407. [437]

     John and Karen (and not Ruskin) were clearly identified as the clients in Mr Adams’ 2014 retainer agreement and client letters, including the client letter of 22 May which, it is not disputed, was emailed to John. Mr Adams clearly considered that John and Karen were his clients under the retainer. It would be absurd to think that he could have acted for them for a period of months, including two face-to-face meetings, and yet still left John with the impression that he was acting for Ruskin instead. Nothing along those lines was put to Mr Adams in cross-examination.

408. [438]

     I must likewise reject the assertions in John’s affidavits that in 2014 he was not concerned about the possible recurrence of Susannah’s past problems with alcohol. It does not matter that Ruskin may have been the first person to mention those problems to Mr Adams. Mr Adams’ unchallenged evidence, and the documentary record, demonstrate clearly that this was one of the factors which underpinned the McLennans’ desire to put as many as possible of their assets beyond Susannah’s reach.

409. [439]

     That desire encompassed and explained the instruction recorded by Mr Adams that John and Karen wished to give Ruskin “control and absolute discretion in” Convulon, Lakshmi, and their respective trusts. Mr Adams clearly understood that the instruction came from John as well as Karen. Nothing was put to him in cross-examination to suggest otherwise.

410. [440]

     The documentary evidence demonstrates that the transfer of the Convulon and Lakshmi shares to Ruskin was recommended by Mr Adams as a further step to take after the new wills had been executed on 3 June. That is exactly what happened on 1 September. It is likely that the transfer was organised by Mr Walker, and had his imprimatur as well, but there is no need to make any findings about this.

411. [441]

     It is admitted on John’s behalf that he signed the Convulon and Lakshmi share transfers, and the other corporate documents, on 1 September. There is nothing to suggest that this was the result of some sort of imposition on him, or lack of understanding on his part. John’s affidavits are simply silent on the point. There would be no justification for the Court making any such findings.

412. [442]

     All of the conclusions I have reached concerning John’s involvement in the process which resulted in the 2014 wills and the Convulon and Lakshmi share transfers (and in the establishment of the new banking facilities with CBA) apply with increased force to Karen. Nothing in John’s affidavits even suggests that she might not have understood and agreed with the process. It would be impossible for me to find to the contrary.

413. [443]

     This has a further significance for John’s own claim. John and Karen had a long and, to all appearances, close, marriage. It seems inconceivable that when undertaking their estate planning, they would not have carefully discussed between them what their wishes were, and how to achieve those wishes. One would also expect them to have shared information they had about the process with each other.

414. [444]

     Against this background the lack of evidence from John about discussions with Karen in 2011-2014 particularly stands out. The natural inference is that they acted together in giving the instructions they gave Mr Adams, and in considering the advice they received from him and from Mr Walker (including advice relayed by Ruskin). There is nothing to rebut that inference. This is another large gap in John’s case which cannot be filled by drawing an inference in his favour or by speculation.

415. [445]

     I have not overlooked John’s affidavit evidence of Karen’s bad experience with her father’s estate and her alleged desire for hers and John’s own children to be treated equally. It may readily be accepted that as a result of her own experience, Karen had strong views about the importance of making proper testamentary provision for John’s and her assets. But this only underlines what in fact happened in 2014. John and Karen very deliberately did not just divide their estates equally between Ruskin and Susannah.

416. [446]

     When John’s evidence in his affidavits is boiled down, it really did not say anything about the critical meetings with Mr Walker and Mr Adams, or about the correspondence, apart from saying that John could not remember them. The evidence about the meeting of 28 February was particularly unimpressive. The only thing which John purported to remember was that Ruskin did most of the talking, but Mr Adams’ unchallenged evidence was that in fact it was Karen who did so.

417. [447]

     To suggest that there was some sort of equivalence between John and Mr Adams, because Mr Adams could not recall the detail of the conversation either, is unconvincing. Mr Adams had contemporaneous notes and was able from those notes to give evidence of the gist of the meeting. Mr Adams was also able to recall the main features of his retainer and the instructions he received. John had no contemporaneous notes and was unable to offer any recollection on the subject at all.

418. [448]

     Evidently, when John’s affidavits were sworn in 2023, he had completely forgotten about the estate planning that he undertook with Karen which started in 2011 and culminated in the execution of the new wills in 2014. He himself admitted that he had forgotten even making the wills. The attempt in his affidavit to explain this by saying that it was because he did not realise that Mr Adams was acting for him was fanciful. The simple fact was that John could not remember the events of 2014 because, by 2023, he had forgotten them. There was really nothing more to say.

419. [449]

     It is true that Mr Adams recommended that action be taken about John’s role as appointor in the Lakshmi Trust, and that nothing was done about that at the time. But I do not accept the submission from counsel for John that this was because John and Karen decided to maintain the status quo. There was no such evidence in John’s affidavits. It is far more likely that the recommendation was simply overlooked. That would be consistent with the way it was treated in 2019.

420. [450]

     I do not, however, accept Ruskin’s evidence of an agreement to buy the shares for $1.2 million or so in 2013. I agree with counsel for John that if such an agreement had been made, Mr Adams (and Mr Walker) would certainly have been told about it.

421. [451]

     The shares were transferred for a nominal price. Any other arrangement would not have made sense from a commercial or taxation point of view. The value of Lakshmi and Convulon lay in the Trusts themselves, not in the corporate shells. Transferring the shares for $1.2 million would have resulted in a large capital outlay which could never have been recouped.

422. [452]

     Another difficulty with accepting Ruskin’s account of events is that the consideration under the so-called agreement was, on his version of events, not paid until 2015 or 2016, and, insofar as it involved paying Rory’s school fees, extended right up to 2022. I doubt very much that Ruskin and his father could have settled, in any binding contractual way, on a defined price in 2013.

423. [453]

     What appears more likely is that a loose understanding was reached under which Ruskin would, once he had control of the Trusts and was in a position to direct the income to himself, assume responsibility for paying Rory’s school fees, and perhaps other expenses, for the benefit of his parents. The later payments may then have been treated by Ruskin, with the benefit of hindsight, as the consideration for some sort of binding oral agreement for transfer of the shares. But even if that is not the explanation, I do not accept Ruskin’s evidence on the point.

424. [454]

     Nor do I accept Ruskin’s evidence that Mr Adams asked John whether he wished to seek independent legal advice in the course of the meeting on 28 February 2014 and that, following that meeting, Ruskin reminded John about it and John declined. Believing as he did that he was acting for John and Karen and no one else, there would have been no reason for Mr Adams to make that suggestion. The evidence smacks of a later reconstruction to shore up a perceived weakness in Ruskin’s case.

425. [455]

     2020 wills and other transactions: I have already explained why I do not accept that in 2014 John had no concern about Susannah and alcohol. The position is even clearer in 2019-2020. The assertions in John’s affidavit are directly contradicted by the letter of intent dated 11 April 2019 which he signed.

426. [456]

     I do not accept the attempt to explain the letter away by blaming it on Karen (or, in the later version of the story, on Karen and Ruskin). The concern was one of the factors behind the instructions given by John and Karen in 2014, and other evidence showed clearly that that remained the case in 2019-2020. The claims in John’s affidavits are convenient but wildly implausible.

427. [457]

     Nor do I accept that John believed in 2019-2020 that Mr Adams was acting for Ruskin rather than for him and Karen. It is true that Ruskin was identified as an additional client on the file, but even if John noticed this it would not by any means have followed that Mr Adams was not also acting for John and Karen. Furthermore, I accept Mr Adams’ evidence that in substance he saw John and Karen as his clients. In these circumstances he is unlikely to have conveyed the impression to John that Ruskin was the sole client. I find the suggestion as implausible in 2019-2020 as I have found it to be in 2014.

428. [458]

     Again, I must reject the assertion that John did not know about, and did not participate in, the giving of instructions for the new wills and the other transactions. Again, there is no denying that the emails addressed to him would have been available to him had he chosen to look at them. And again, John has failed to prove that he did not receive copies of the client letters issued by Mr Adams and there is a complete lack of positive evidence (apart from the evidence about September 2020, which is unworthy of credit) about conversations with Karen or dealings with Mr Adams, Mr Jutrisa and Mr Walker.

429. [459]

     Nor do I accept the submission from counsel for John that Ruskin was told about the recommendation in Mr Jay’s draft advice against transfer of the Bombi Road property. Mr Adams clearly regarded that statement as not being fully considered, a view which was amply justified when, upon further thought, Mr Jay reversed it. I see no reason at all why Mr Adams would have shared such a preliminary view with Ruskin.

430. [460]

     In my finding, it is unclear exactly when and by whom the inter vivos transfer of the Bombi Road property was first proposed. It is notable that at one point in his evidence Mr Adams suggested that he himself originated the idea. But even if it came originally from Ruskin, the important point is that it was picked up and made the subject of a specific recommendation by Mr Jay and Mr Adams. In doing so, they were acting independently of Ruskin and in accordance with what they conceived to be the instructions provided by their clients, John and Karen.

431. [461]

     In those circumstances, even if Ruskin had been told of Mr Jay’s initial reaction, that would have had no significance. There would have been nothing sinister whatever from Ruskin’s point of view in Mr Jay putting aside his initial unconsidered view and changing his mind.

432. [462]

     It is even less likely, in my opinion, that if Ruskin was not told about Mr Jay’s draft opinion on 4 September, that he was told at the meeting with Mr Adams on 8 November. By then the draft advice was ancient history. There is no reason whatever to reject the evidence of Mr Adams (and Ruskin) on this point.

433. [463]

     Mr Adams was quite open in his email of 5 March 2020 (which was copied to John) about the instructions which he had received from Ruskin, purportedly on behalf of John and Karen. It was obvious that he was proceeding on the basis that Ruskin was acting as a conduit for his parents’ instructions. The email from Ruskin to which Mr Adams replied expressly stated that the instructions came from them. I find it totally implausible to think that Ruskin would have taken the risk of sending such an email if they had not given such instructions, and the fact that Mr Adams replied and copied the email to John only reinforces how absurd such a hypothesis is.

434. [464]

     I agree that the contradictory evidence about the dates of execution of the four Discretionary Trust Deeds has not been explained. But the advice from Mr Jay and Mr Adams was clear. They recommended that the Deeds be executed. They were clearly seen as formalities, and, in the case of the Deed of Variation (Appointment) and the Deed of Appointment, unfinished business left over from 2014. There was no perceived requirement that those two Deeds be executed by 31 December 2019, or any other date.

435. [465]

     There is no dispute that the four Deeds in question were in fact signed by John. The actual dates of execution are unknown. It may well be that some of them were executed earlier than others. But in the end, I do not think that matters.

436. [466]

     I reject the suggestion made in cross-examination of Ruskin that he was deliberately trying to sow confusion, in order to confound his father’s failing memory. This was denied by Ruskin and there is simply no evidence to prove to the contrary.

437. [467]

     Nor do I accept that there is something suspicious about the changes in the on-again-off-again instructions concerning the transfer of the Bombi Road property. Ruskin’s evidence in cross-examination that this was linked to the gyrations in the stock market associated with the Covid-19 pandemic is supported by the contemporaneous emails.

438. [468]

     Indeed, in my view, the fact that the instructions changed back and forth makes it more, rather than less, likely that they represented instructions given by John and Karen themselves. If, as counsel insisted, Ruskin was determined to obtain the Bombi Road property for himself, and had the influence over his parents that allowed him to obtain it, the toing and froing becomes impossible to explain. There is simply no evidence to support counsel’s suggestion in cross-examination that it was attributable to John and Karen resisting pressure from Ruskin.

439. [469]

     I have already explained why I am unable to accept John’s affidavit evidence about resisting the making of a new will and being overborne by Karen and Ruskin in September 2020. It is notable that John’s affidavits attribute the leading role to Karen rather than Ruskin. It is possible that Karen was keener on trying to shut Susannah out of making a claim against the McLennans’ estate than John was. But even on John’s own account, he went along with this to keep the peace with Karen, and this was ultimately a matter of free choice.

Transfer of Lakshmi Trust appointorship

1. [470]

   Counsel for John limited the appointorship transfer challenge to a claim in equity to have the transfer set aside as an unconscionable transaction. Pleaded claims under the Australian Consumer Law and the Contracts Review Act 1980 were not pressed.

2. [471]

   Nor were the amendments to the Lakshmi Trust Deed made by the Deed of Amendment (Appointment) challenged. Counsel for John only challenged the Deed of Appointment itself. If successful, the challenge would therefore leave the Trust Deed in amended form. I will return to this below.

3. [472]

   The particulars of “special disadvantage" given in John’s statement of claim were:

4. [473]

   These particulars combine a number of different factors which have been recognised in the case law as contributing to a finding of unconscionability. I propose to discuss them under three headings: improvidence of the transaction; John’s vulnerability to being taken advantage of by Ruskin; and exploitation by Ruskin of any such vulnerability.

5. [474]

   Improvidence: Counsel for John pointed out that the assets of the two discretionary trusts were said to have had a combined value of $10 million, and to have generated an annual income of $350,000. There did not appear to be any specific figures for the Lakshmi Trust alone, but counsel suggested that its assets would have been worth perhaps $4 million to $5 million, and its income would have been in the hundreds of thousands of dollars. By any measure, in counsel’s submission, this was a “substantial resource” as alleged in particular (b).

6. [475]

   Counsel took it as given that the appointorship transfer conferred control on Ruskin of the assets of the Lakshmi Trust and correspondingly deprived John of “control and security” over Karen’s and his income (particulars (c) and (d)). To that extent it resulted in Ruskin obtaining John and Karen’s assets for himself (particular (g)). Counsel submitted that I should reject Ruskin’s claim that he had been entitled to control of Lakshmi as a result of the alleged 2013 agreement with John, but submitted that even if Ruskin had paid $1.2 million or so pursuant to some such agreement, this was far less than the assets of the Trust were worth. Therefore the consideration was on any view inadequate (particular (c)).

7. [476]

   Counsel criticised what they called the “sheer inutility” of the transaction to achieve its desired purpose, namely, to avoid the risk of Susannah dissipating the assets of the Trust. Counsel submitted that Mr Jay had advised that a claim from Susannah could not be prevented. The only effective way to deal with the risk of a successful family provision claim was to increase the provision in her favour to a level which the Court would find was adequate. This, in counsel’s submission, was enough to establish that there was “no financial reason or advantage” to John in the transfer and that it was “improvident” (particular (e)).

8. [477]

   Counsel submitted that the improvidence was illustrated by what happened when Ruskin stopped making payments for Rory’s expenses. This had, in counsel’s submission, forced John to cover Rory’s expenses himself. Counsel submitted that there were “inherent risks” in the transfer, and “alternative means of pursuing the same end at much lower personal risk to John”.

9. [478]

   Counsel for Ruskin urged me to reject these submissions. Counsel invited me to find that the transfer was indeed part of what Ruskin had paid for under his 2013 agreement with John. But even this was not so, Counsel submitted that the transfer was not improvident. Rather, it was a rational and understandable step to take, given the longstanding concern on the part of John and Karen about the risk posed by a potential family provision claim on the part of Susannah.

10. [479]

    In this regard, counsel pointed out that the transfer was recommended by Mr Adams and Mr Jay. Moreover, it still left John and Karen with assets (in the form of their shares in the superannuation fund, together with their shares in the Rusutsu property, and other assets) which have now passed to John and are, in his hands, worth more than $7 million.

11. [480]

    I accept that Mr Jay advised that a claim by Susannah could not be ruled out and the existing direct provision in her favour of Susannah should be increased. But it does not follow that the transfer of the appointorship lacked utility as counsel for John submitted.

12. [481]

    Mr Jay’s advice was given in the context of the proposed changes to the disposition of John and Karen’s residuary assets (that is, their superannuation entitlements, their shares in the Rusutsu property, and other miscellaneous property such as household contents and Karen’s jewellery). It was not concerned with the transfer of the Lakshmi appointorship. That is shown by the fact that Mr Jay, in terms, recommended that the appointorship be transferred. He would hardly have done so if he considered that such a transfer would be futile.

13. [482]

    There was a rational basis for this advice. It was seen as a means of ensuring that Ruskin had “full control and discretion in” the discretionary trusts. If (as happened) John survived for more than three years, the Lakshmi Trust would be, as the Convulon Trust already was, definitively beyond Susannah’s reach. This was an important element in John and Karen’s estate planning, and had been so going back to 2014.

14. [483]

    I have rejected Ruskin’s claim that there was some sort of contractual arrangement between himself and his father in 2013 under which he was to pay $1.2 million or so for Lakshmi and Convulon (including, allegedly, the transfer of the Lakshmi appointorship). But I think, with respect, that both parties’ contentions concerning consideration for the transfer rather missed the point.

15. [484]

    As already noted, the actual amount paid for the transfer of the shares in Lakshmi was nominal ($1). This was understandable. The value of Lakshmi’s assets lay in the capital in the Lakshmi Trust, not in Lakshmi as a corporate entity. If the assets were truly to have been given to Ruskin “for his own benefit” as particular (g) alleges, they would have had to be transferred out of the trust to him personally. But Ruskin’s aversion to capital gains tax (which I assume was shared by John) led to the rejection of that idea at an early stage.

16. [485]

    Thus, what was transferred with the Lakshmi shares was a practical entitlement to control the affairs of the Lakshmi Trust, subject to the terms of the Trust Deed. That cannot simply be equated to the value of the underlying assets. The transfer of the Lakshmi appointorship under the Deed of Appointment removed the possibility of Lakshmi’s day-to-day control being disturbed. But with this qualification the same observations apply. The assets of the Trust were not actually being transferred to Ruskin and his control of them through Lakshmi remained subject to the terms of the Trust Deed.

17. [486]

    The qualification that the control was subject to the terms of the Trust Deed is important. A troubling aspect of Ruskin’s evidence is that he seems to have perceived that he was “buying” the Trust from his parents for himself. If that was what Ruskin thought, he was wrong. As the controller of Lakshmi, Ruskin had a wide discretion (when confirmed with consent from himself as appointor) to distribute the trust income among the beneficiaries (his father, himself, his sister, his nephew, and his daughters). But it was a discretion which nevertheless was subject to limits, including under the doctrine of fraud on a power: see Baba v Sheehan [2021] NSWCA 58 at [6].

18. [487]

    It follows that whatever Ruskin may himself have thought, the transfer of the Lakshmi appointorship should not be seen as some sort of proprietary gift to Ruskin (or, perhaps more accurately, Lakshmi). Instead, it involved making a choice.

19. [488]

    Someone had to be the appointor under the Trust. The question was whether John should be left as the appointor, or his powers as appointor should be transferred to some other person or persons. The evidence makes it perfectly clear that the continuation of John as the appointor was perceived as giving rise to a risk that the assets of the Trust could be reached by Susannah as part of a family provision claim. Removal of John was seen as desirable as a means of achieving that result. It may not have been the only possibility, but there were not many of them, and it was a rational choice, as is shown by the fact that both Mr Jay and Mr Adams recommended it.

20. [489]

    Mr Adams was not challenged on his recommendation when he gave evidence. Nor was he asked about the alleged “inherent risks” and “alternative means of pursuing the same end at much lower personal risk” referred to in counsel’s submissions, which were not identified. In my view, the transaction was not an improvident one.

21. [490]

    If I am right in thinking that what really happened in 2013 was that a loose understanding was reached which involved Ruskin undertaking to pay Rory’s school expenses, and, perhaps, other expenses nominated by John and Karen, then the undertaking appears to have been honoured right up until Rory left school at the end of 2022. I accept Ruskin’s evidence on this point, and think the suggestion in John’s affidavit evidence that the arrangement ceased on Karen’s death is incorrect.

22. [491]

    It is unclear to me what income distributions have been made from the Lakshmi Trust since the breakdown of the relationship between John and Ruskin, or whether, assuming that such distributions were not made equally among the first corpus beneficiaries, Ruskin’s consent as appointor was formally provided. I mention this because, even after the breakdown, Ruskin was still obliged, as controller of Lakshmi, to comply with the terms of the Trust Deed and to give proper consideration to the interests of all of the first and second corpus beneficiaries. On the views I have formed, however, it is not necessary to take this further for the purposes of the present judgment.

23. [492]

    Vulnerability: Counsel submitted that the course of the events showed quite clearly that John and Karen had placed their trust in Ruskin (particular (j)). Counsel referred to his role in managing their finances as well as obtaining legal and financial advice. Counsel submitted that “emotional dependence” was a recognised element of special disadvantage, referring Louth v Diprose (1992) 175 CLR 621, Smith v Smith [2004] NSWSC 663 and Thorne v Kennedy (2017) 263 CLR 85.

24. [493]

    Counsel next submitted that John and Karen received no financial advice concerning the transfer at all. So far as legal advice was concerned, counsel submitted that, so far as the evidence went, Mr Jay’s advice was never sent to John and Karen, and nor were Mr Adams’ client letters, especially the letters of 11 September, which referred to Mr Jay’s advice about the transfer, and 13 December, which enclosed the Deed of Appointment and explained it. This supported the allegation that John and Karen received “no or minimal” advice on the “merits or effects” of the transfer (particular (i)).

25. [494]

    Counsel also submitted, albeit without directly criticising Mr Jay or Mr Adams, that their advices were incomplete. They did not warn against the possibility that John and Karen’s relationship with Ruskin might break down, or that John and Karen might wish to bring Susannah back into the fold if satisfied that she had put her problems behind her (cf particular (i)).

26. [495]

    Finally, counsel submitted that at all times Mr Adams was acting for Ruskin as well as his parents. On no view, therefore, had John received “properly independent” advice sufficient to make a judgement on whether to proceed with the appointorship transfer (particular (j)). Counsel referred me to the discussion by Brereton J in Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 at [115]-[121] concerning the elements of independent legal advice. They submitted that any “properly independent” advice should have cautioned against making the transfer.

27. [496]

    Counsel for Ruskin urged me to reject these submissions. Counsel argued that John was at the time a very experienced businessman. There was no evidence that he was suffering from any cognitive impairment, and observations by others, such as the bank’s officers, suggested to the contrary. At all times, John had access to independent and professional legal and financial advice. There was no element of “special disadvantage”.

28. [497]

    There does not appear to be any doubt that in 2014, John’s cognitive skills were perfectly adequate. Counsel for Ruskin pointed to observations by one of the bank officers in 2014 to that effect. But, as already noted, counsel for John did, at some stages in Ruskin’s cross-examination, suggest that John’s memory might have been failing in 2019 and 2020, and Ruskin implicitly accepted that there might have been at least a degree of age-related deterioration. I have also found that by the time John came to make his affidavits in 2023-2024, he must have entirely forgotten the events of 2011-2014, and apparently the events of 2019-2020 as well. The loss of memory was apparently so profound that one wonders whether it might have started earlier.

29. [498]

    Counsel for John however did not seek to make anything of this in closing submissions. In the end, whatever doubts the Court might have, neither party has contended that John was suffering from any serious cognitive difficulties in 2019-2020, and it is not open to find to the contrary on the evidence they have presented. It is only fair to say that the unchallenged evidence of Mr Adams about the meeting of September 2020 strongly negatives any suggestion of cognitive difficulties at that date.

30. [499]

    There is no doubt that in 2018-2019 (and going back to 2014 and before), John and Karen relied on Ruskin to manage their banking and other financial affairs, and their dealings with Mr Adams, Mr Jutrisa, and Mr Walker. In that sense, they trusted him. But this was a reliance on, and a trust in, Ruskin acting as a conduit for supplementary instructions and advice. The advice John and Karen received remained advice of their professional advisors. There is no proof that Ruskin used his role to shape that advice for his own purposes.

31. [500]

    Ruskin expressly referred in some of his emails to Mr Adams to discussions with his parents. No doubt, as Ruskin himself said in his evidence, there would have been further discussions not recorded or referred to in the documentary record. But John has not proved that Ruskin went beyond discussing the issues with his parents and tried to impose his own point of view on them, let alone that he succeeded. Still less is there proof of “emotional dependence” of the type referred to in Louth v Diprose.

32. [501]

    It is true that neither Mr Walker nor Mr Jutrisa appears to have been asked for advice in 2019 about the transfer of the appointorship. But that is hardly surprising. It was a legal, rather than an accounting or financial, issue. This is not to say that Mr Walker or Mr Jutrisa would have been likely to offer any different recommendation from that put forward by Mr Jay and Mr Adams. Mr Walker, it seems, was the person responsible for putting the original transfer of the Lakshmi and Convulon shares into effect in 2014.

33. [502]

    It is also true that once he had transferred the Lakshmi appointorship to Ruskin, John would be unable to take control of the Trust back from Ruskin in the future. But that was obvious. It was the whole point of the transfer in the first place. It is difficult to see how referring to the specific possibilities of relationship breakdown, divorce or bankruptcy would have made any difference, and they were not put to Mr Adams in cross-examination.

34. [503]

    Finally, I do not accept the submission from counsel for John on the independence of the legal advice provided John and Karen. In the first place, Mr Jay’s evidence was completely independent; even if Mr Adams’ retainer included Ruskin as an additional client, Mr Jay’s advice was provided on the basis that John and Karen were the sole clients. As Mr Adams’ ultimate advice was based on the recommendation from Mr Jay, any complaint about his alleged lack of independence goes nowhere.

35. [504]

    In any event I do not accept that any such complaint is valid. Mr Adams’ evidence was that he saw himself at the relevant time as acting for John and Karen, and only them. Ruskin was involved, but only as a conduit between Mr Adams and his clients. This evidence was not challenged and I accept it.

36. [505]

    This is not a case where Mr Adams was being sued for breach of duty arising out of a conflict from acting for two clients with opposing interests. In such a case, the solicitor may commit a technical breach of duty without consciously preferring the interests of one client to another. But I do not accept that that is relevant for present purposes. Unless a conflict in fact resulted in John receiving less adequate or extensive advice than he would otherwise have received, it is difficult to see how it could be an element of special disadvantage. Given Mr Adams’ unchallenged evidence that he believed that he was not acting for Ruskin, that is the end of the matter.

37. [506]

    If a technical conflict had arisen merely from Mr Adams acting for Ruskin without it affecting the discharge of his duties to John and Karen, that could conceivably be relevant if it was alleged that Ruskin thereby had constructive notice of some relevant fact through Mr Adams, or if it were necessary to prove affirmatively that the transaction was fair, just and reasonable. But it is unnecessary to consider those ideas further in the present case.

38. [507]

    Exploitation by Ruskin: Counsel for John submitted that, from his extensive role in his parents’ financial and legal affairs, Ruskin could have been in no doubt about their trust in him. And in counsel’s submission, Ruskin not only acted on his parents’ behalf, but encouraged them to delegate tasks to him, or even took tasks on without their agreement at all, such as when he allegedly took control of their bank accounts from 2014 onwards. Counsel submitted that the facts thus amply supported the allegation that Ruskin encouraged John to place trust in him (particular (j)).

39. [508]

    Counsel also submitted that Ruskin was well aware of the improvidence of transferring the Lakshmi appointorship to him. They submitted that this was why he invented his story about the 2013 agreement. He was trying to provide a justification for a transaction which he knew was otherwise unjustifiable.

40. [509]

    Counsel further submitted that, on his own evidence, Ruskin was from as early as 2012 interested in acquiring ownership of the discretionary trusts for himself, and protecting them from any claim from Susannah. Counsel reminded me that the advice which Ruskin initially obtained from Mr Adams in 2013 was obtained in his own name. In counsel’s submission it was Ruskin who drove the process thereafter. He was the one who reviewed Mr Jay’s advice with Mr Adams and gave Mr Adams the instruction to proceed. These factors established that it was Ruskin who procured the transfer (particular (f)).

41. [510]

    As already noted, counsel in their closing submissions accepted that the purpose of the appointorship transfer, along with the other aspects of John and Karen’s estate planning, was to prevent the possible dissipation of assets by Susannah, if her alcohol and drug problems returned. Implicitly, they therefore accepted that this had been part of their instructions to Mr Adams, and that John and Karen must have actually had such concerns at the time.

42. [511]

    But at other points in their closing submissions, counsel sought to raise questions about whether those concerns might not have been based on fact, or at least might have been exaggerated. Counsel described Susannah’s alcohol problems as “alleged” ones. They pointed out that although past drug use was referred to in Ruskin’s evidence and Mr Adams’, there was no evidence that this was seen as a contemporaneous problem in 2019 and 2020. At one point they invited the Court to find, on the balance of probabilities, that Ruskin “likely had exacerbated his parents’ concerns about Susannah”.

43. [512]

    Counsel added that Ruskin well knew the purpose of the transfer was not to gift assets to him but to avoid dissipation by Susannah. In this context, counsel referred me to Nitopi v Nitopi [2022] NSWCA 162 at [31], where Bell CJ made the point that retention of assets given under conditions of special disadvantage may itself be unconscionable.

44. [513]

    Finally, counsel submitted that Ruskin knew that “no or minimal” legal advice had been provided to John. They also submitted, based on answers given in cross-examination, that he knew that no “properly independent” legal advice had been given.

45. [514]

    In counsel’s submission, Ruskin should have known that independent advice would have cautioned against the transaction. But even if not, unconscionability was still made out. Counsel submitted that: “it cannot be the case that the person taking unconscionable advantage should know what should have been advised, that being in the province of specialised professionals. All that is sufficient a knowledge that such independent legal advice had not been obtained”.

46. [515]

    Counsel for Ruskin emphasised, by reference to Thorne at [38] that it was insufficient merely for John to have been subject to special disadvantage (assuming, contrary to their earlier submissions, that he was). Ruskin must also have unconscientiously taken advantage of that special disadvantage. It was also “generally necessary” that he “knew or ought to have known” of the existence of effect of that special disadvantage.

47. [516]

    Applying these principles, counsel submitted that the submissions by counsel for John had to be rejected. The evidence did not establish that Ruskin either knew of such special disadvantage as John might have been labouring under, or that he took steps to exploit it.

48. [517]

    I have already explained why I consider that, although John and Karen did place their trust in Ruskin to manage some of their affairs, it was a limited type of trust and there is no proof that it extended to Ruskin giving his own advice on legal matters and them routinely accepting it. Accordingly, I reject the submission from counsel for John that Ruskin relevantly encouraged some sort of relationship of dependence by his parents on him. Nor is there any proof that Ruskin poisoned his parents against Susannah.

49. [518]

    It was actually counsel for John who put the proposition to Ruskin that the alleged 2013 agreement obliged John to transfer the Lakshmi appointorship to him in 2019-2020. Ruskin’s acceptance of that proposition, however, did no favours for his credit. But I have already explained why I consider that the transfer was not improvident as alleged on John’s behalf. My conclusion does not depend upon the alleged 2013 agreement.

50. [519]

    It has not been proved that John in fact received no or minimal legal advice on the transfer. Nor has it been proved that Ruskin initiated the transfer idea in 2019 or (which is more important) persuaded his parents to make the decision to accept the advice from Mr Jay and Mr Adams to proceed. Ultimately, in my finding, it was their decision.

51. [520]

    It is relevant in this context that Karen was presented in John’s own affidavits as having been the, or at least a, driving force behind the exclusion of Susannah. The point for present purposes is that it cannot be simply assumed that if John was persuaded by someone else to enter into the transaction, that someone else was necessarily or exclusively Ruskin.

52. [521]

    I am also far from convinced by the submission from counsel for John that all that had to be proved was that Mr Adams was, to Ruskin’s knowledge, “not independent”. As I have explained, I think that in order to establish the relevant disadvantage, it had to be shown, not only that that Mr Adams was not independent, but also that his lack of independence impeded him in giving full and frank advice to John. If so, it would have to be proved that Ruskin knew or ought to have known that Mr Adams’ lack of independence had that actual consequence.

53. [522]

    I think this conclusion is supported by a further consideration. Whether Mr Adams’ advice to John was independent or not because Ruskin had been a party to the retainer agreement was ultimately a question of law. Ruskin’s “admission” in cross-examination to that effect therefore had no evidentiary value: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [68]-[70].

54. [523]

    Mr Adams believed himself to be giving independent advice to John and set out to do so to the best of his ability. In fact, his advice adopted the recommendations of Mr Jay, who was undoubtedly independent. It would be absurd to treat Ruskin’s conduct as somehow tainted merely because he knew that he had been recorded as a client in Mr Adams’ retainer letter months beforehand.

55. [524]

    It was not even suggested by counsel for John that Ruskin knew or ought to have known about the alleged deficiencies in the advice provided by Mr Jay and Mr Adams. Indeed, counsel’s own submission accepts that the adequacy of the advice was a matter for the lawyers, not for Ruskin. I have rejected the submission that the advice was inadequate, but even if I had upheld it, there could be no finding that Ruskin had exploited any disadvantage resulting from any such inadequacy.

56. [525]

    Conclusions: As already mentioned, John’s claim is only to set aside the Deed of Appointment, leaving the Deed of Variation, with its revised version of cl 14 of the Trust Deed, in place. I think that this created a rather artificial situation. There was no evidence from John specific to the Deed of Appointment. Everything in his affidavits, and all of his counsel’s submissions, applied to the Deed of Amendment as well. It also seems unlikely that Ruskin, as controller of Lakshmi, would ever have agreed to Lakshmi making the amendment in the Deed of Amendment for John to consent to if there had not been a simultaneous exercise of the nomination power in his favour.

57. [526]

    Had grounds for equitable relief been made out, it might have been necessary to consider whether a finding of unconscionable conduct with respect to both Deeds could, or should, have been remedially quarantined to just one of them. It would also have been necessary to consider what consequences would follow for distributions of income made in the meantime and whether some sort of terms ought to be imposed to ensure that those distributions could not be impeached as a result of the Deed of Appointment being set aside. But for the reasons which I have given, the claim fails, and these questions do not arise.

Transfer of Bombi Road property

1. [527]

   Again, the claim pursued in final submissions was limited to one of unconscionability based on special disadvantage, and pleaded claims under the Australian Consumer Law and Contracts Review Act were not pressed.

2. [528]

   As already noted, at the time of the transfer John and Karen each owned a half share of the Bombi Road property (as joint tenants). Counsel accepted that the unconscionability claim for John’s share was distinct from the claim for Karen’s. The claim with respect to John’s share could be directly pursued in his name as plaintiff. The claim with respect to Karen’s share, however, required leave because it was being made on behalf of her estate.

3. [529]

   The particulars of “special disadvantage" were pleaded, both for John and for Karen, in the statement of claim as follows:

4. [530]

   These particulars overlap extensively with the particulars of “special disadvantage” concerning the Lakshmi appointorship transfer, and there was a corresponding overlap between the parties’ submissions on this claim and the appointorship claim. In what follows I will again address the submissions by reference to the three strands of improvidence, vulnerability, and exploitation by Ruskin. But where the submissions addressed a topic which is common to both claims (for example, John’s cognitive function), I will not repeat my summary of the parties’ arguments and my conclusions. What follows is thus confined to particulars and topics where there is some difference, or possible difference, between the two transactions.

5. [531]

   Improvidence: Counsel for John submitted that the improvidence of the transfer of the Bombi Road property was plain to see. The property had been valued for purposes of the transfer at $2 million (in fact, according to counsel, it was probably worth $3 million at the time) and the transfer price was $1 (particular (a)). It was a straight transfer of family wealth of more than $2 million from John and Karen to Ruskin.

6. [532]

   Counsel acknowledged that John and Karen had received the benefit of the Deed of Life Tenancy. But John and Karen had still lost the opportunity to deal with the Bombi Road property as their own asset. In particular, they had given up the ability to sell the property and buy another more suitable property to their needs, especially if those needs changed in the future.

7. [533]

   Counsel for Ruskin urged me to reject these submissions. Counsel argued that, like the appointorship transfer, the transfer of the Bombi Road property was a rational decision in the context of the McLennans’ estate planning objectives. In that context it was not improvident. Especially was this so in the light of the Deed of Life Tenancy, which, despite criticisms which might be made of it, catered appropriately to the McLennans’ needs.

8. [534]

   I accept that, unlike the Lakshmi appointorship transfer, the subject matter of the transfer I am now considering was a piece of real property of considerable value, and that it was transferred at well below market price (whether the market price in fact exceeded $2 million is not necessary for present purposes). But it is still too simple to characterise the transfer as an outright gift and nothing more.

9. [535]

   In the first place, the effect of the Deed of Life Tenancy must be taken into account. Ruskin was not free to sell the property or to encumber it. Indeed, for so long as his parents survived, the property was a source of liability for Ruskin, because of the obligation to pay the outgoings without any entitlement to occupy it. There seems to be no doubt that he continued, and continues, to do so, despite the breakdown in his relationship with his father in late 2022.

10. [536]

    Secondly, the transfer must be seen in the context of the McLennans’ overall testamentary arrangements. In both the 2014 and the 2020 wills, Ruskin was to receive the Bombi Road property when they died. The transfer was thus an acceleration of a previously planned gift. Again, what was involved was a weighing up of the risks and benefits of competing choices.

11. [537]

    It is true that the transfer would prevent John and Karen from recalling the property if they changed their minds about leaving it to Ruskin. But again, that was obvious. And the transfer would help to advance the McLennans’ principal estate planning objective, namely a desire to remove assets from the reach of any potential claim by Susannah. The choice which was made, namely to make the transfer immediately rather than await the death of the survivor of John and Karen, was a rational one. That is presumably why it was recommended by Mr Adams, based on advice from Mr Jay.

12. [538]

    Vulnerability: The submissions from counsel for John on vulnerability followed the same pattern as the equivalent submissions concerning the Lakshmi appointorship transfer. They included criticism, not only of Mr Adams’ supposed lack of independence (which I have dealt with), but also of the quality of his advice. The only difference lay in the criticisms of Mr Adams’ advice, which contained an additional element because a different transaction was involved.

13. [539]

    Although this was not an allegation which had been particularised, counsel pointed out in closing submission that Deed of Life Tenancy was not a “life estate” (the term used by Mr Jay in his advice) in the proper sense of that term. Reservation of a life estate would have left John and Karen with an ownership interest in the property persisting right up until the death of the survivor. They would have had a right, if they chose, to rent the property out and take the benefit of the income from it, rather than living there. This was a more secure and advantageous position that merely having a leasehold interest, especially as that interest was liable to termination merely if Ruskin formed the opinion that his parents were no longer able to occupy the property.

14. [540]

    It may be accepted that obtaining the Deed of Life Tenancy in consideration of the transfer was less favourable to John and Karen than a life estate would have been. But there is no evidence that this occurred to Mr Adams. If the distinction had occurred to him, I have no doubt that he would have obtained instructions on it from John and Karen.

15. [541]

    Still less do I think that Mr Adams made a deliberate decision to prefer Ruskin’s interest by drafting the termination condition under the Deed of Life Tenancy by reference to Ruskin’s opinion, rather than fact. Although counsel touched on the topic in cross-examination, they did not, or at least did not squarely, put that proposition to Mr Adams for him to address.

16. [542]

    Putting aside the lack of particularisation for the moment, I am prepared to proceed on the basis that John and Karen were objectively vulnerable to this extent: Mr Adams mistakenly failed to do all that he could (or at least to consider whether he should do more) to protect their interests, and they could not have been expected to notice that mistake and protect themselves from the consequences of it. Nevertheless, it is unclear what practical consequence that vulnerability may have had. Despite the breakdown in his relationship with his father Ruskin has continued to comply with his obligations under the Deed and has taken no steps to try to terminate John’s tenancy. There is no sign that he will do so in future (if John proves unable to live at Bombi Road).

17. [543]

    Exploitation by Ruskin: Counsel for John submitted that the idea of transferring the Bombi Road property to Ruskin originated with Ruskin himself. The instructions to proceed likewise came from him. In counsel’s submission, I should find that Ruskin “procured” the transfer (particular (d)). I should also find that Ruskin was aware that Mr Jay had originally recommended against the transfer (particular (h)). Counsel for Ruskin opposed these submissions.

18. [544]

    On my findings, it has not been proved that the idea for the transfer originated with Ruskin. More importantly, there is no proof that the instructions ultimately relayed by Ruskin to Mr Adams were even based on advice or recommendations from him to his parents, let alone some imposition on his part. I have also rejected the allegation that Ruskin knew of the recommendation in Mr Jay’s draft advice (which was of no significance anyway).

19. [545]

    I have been prepared to accept (ignoring the lack of pleading) that the McLennans were vulnerable, in that Mr Adams made a mistake in using of a tenancy rather than a life estate to protect their interests following the transfer. But for the reasons which I have already given, this is not something which can be somehow imputed to Ruskin for the purposes of establishing that he exploited his parents’ vulnerability. It would be absurd to attribute it to Ruskin when it did not even occur to Mr Adams.

20. [546]

    Conclusion: Had unconscionability been established against Ruskin in accepting the transfer, it would have been necessary to take account of the payments for expenditure on the property made by Ruskin in the period since the transfer. But for reasons which I have given, that claim fails, and the question does not arise.

21. [547]

    As already noted, counsel for John did refer in general terms to the possibility that unconscionability might be established where a party innocently participates in a transaction where the other party is in a position of special disadvantage, and later becomes aware that the transaction resulted from that disadvantage. It was not however pleaded that Ruskin had acted unconscionably in retaining the benefit of the Deed of Life Tenancy once he became aware of the failure to protect his parents’ interest by reserving a life estate in their favour. In any event, the remedy for such unconscionability would be a limited one. It would not extend to setting aside the whole transaction. In the present case, the point does not need to be considered any further.

22. [548]

    As already mentioned, counsel for John accepted that it was necessary to obtain the Court’s leave to pursue an unconscionability claim with respect to Karen’s half of the Bombi Road property. But counsel pointed out that the application for leave could be made at any time, including at the end of the proceedings: Ramage v Waclaw (1988) 12 NSWLR 84.

23. [549]

    Counsel argued that if the question was considered as a preliminary issue (that is, before the end of the proceedings), the question of leave should be considered as the mirror image of a claim for summary dismissal. The proposed claim should be taken at its highest, and leave should only be refused to pursue the claim in the clearest of cases.

24. [550]

    On the other hand, if the question of leave was considered at the end of the proceedings, counsel argued that any finding of unconscionability on the part of Ruskin would suffice to justify the grant of leave. Counsel submitted that the claim on behalf of Karen’s estate, although differing in some points in detail, was no less meritorious than John’s claim. Counsel submitted that it should succeed for the same reasons and that leave should accordingly be granted.

25. [551]

    I agree that there is a great deal of overlap between John’s claim and the claim on behalf of Karen’s estate. However, I think that the claim on behalf of Karen’s estate is appreciably weaker than that made on behalf of John. I say that for four reasons.

    1. (1)

       There is no suggestion that Karen ever, during her lifetime, suffered from any cognitive difficulties at all.

    2. (2)

       Nor is there any evidence that Karen lacked any understanding of the transactions undertaken as part of the estate planning process.

    3. (3)

       As already noted, even on John’s evidence, Karen was apparently keener on excluding Susannah from any role in managing the family’s assets than John was.

    4. (4)

       Indeed, there is some evidence in the proceedings, which I have not thought necessary to summarise, of additional texts between Ruskin and Karen during 2019-2020. They include one text which I think shows that Karen continued to regard Susannah as an unsuitable guardian for the family wealth.

26. [552]

    I am not sure about counsel’s submission that in deciding whether or not to grant leave, the Court should adopt an inverse strike-out test. Depending on the facts of the case, it might be necessary to go further and ask whether proper consideration has been given to whether the claim has reasonable prospects of success. In the present case, I would have thought it necessary to take into account that, on the evidence, the transfer of Karen’s half of the Bombi Road property is entirely in accordance with what she wished to happen.

27. [553]

    It is however unnecessary to explore these questions further. On my findings, John’s claim for equitable relief fails, and it follows that any claim on behalf of Karen’s estate must likewise fail. Leave to pursue the claim should therefore be refused.

Family provision claim

1. [554]

   Counsel for John submitted that there was a “real prospect” of John returning home to Bombi Road. His needs for family provision purposes were said to be secure accommodation and financial security. Karen’s estate contained sufficient assets to guard against a “worst case scenario”.

2. [555]

   Counsel submitted that provision should be made for John out of Karen’s estate for this purpose. The provision should be sufficient to cover the possibility that John would survive, living at Bombi Road, for a period of years. Counsel submitted that this would justify an order making available, by way of notional estate, the half share of the property received by Ruskin from Karen. An order should therefore be made requiring Ruskin to transfer that half share to John.

3. [556]

   Counsel for Ruskin raised a jurisdictional objection to this claim. Counsel submitted (and this was not in dispute) that the basis of the claim was that the transfer of Karen’s half share to Ruskin was a “relevant property transaction” for the purposes of s 80 of the Succession Act 2006 (“SA”). That could only be so, according to the definition of the term “relevant property transaction” in SA s 75(1), if “full valuable consideration [had] not been given” for the transfer.

4. [557]

   Counsel submitted that this condition was not satisfied. The transfer had been made in exchange for entry into the Deed of Life Tenancy. Counsel submitted that Ruskin’s obligations under the Deed amounted to “full valuable consideration” for relevant purposes.

5. [558]

   Counsel also challenged the claim on the merits. They pointed out that John currently has $7 million in liquid assets, $4 million of which was inherited from Karen. He also has the right to reside at Bombi Road for the rest of his life. In counsel’s submission, no further provision is necessary.

6. [559]

   As at present advised, I am not prepared to accept the jurisdictional point advanced by Ruskin. I am not sure that the Ruskin’s obligations under the Deed of Life Tenancy amount to “full” valuable consideration for the transfer of the Bombi Road property.

7. [560]

   Even so, I think there is still a statutory obstacle to the claim. That obstacle derives from SA s 88 which relevantly provides:

8. [561]

   In this case, Karen’s estate, which was inherited in whole by John, was worth more than $4 million, and John retains most, if not all, of those funds. That amount is more than sufficient to pay for accommodation and care for John for the rest of his life, even ignoring the further assets which John holds and which total $3 million or so.

9. [562]

   It would appear to follow that John’s needs can be fully met by his inheritance from Karen. In such circumstances, the making of further provision by way of an order out of notional estate held by Ruskin is not permissible.

10. [563]

    Counsel for John argued that John’s “need” to live at Bombi Road was not purely financial. The property had been his home for many years, and counsel suggested that there would be obvious sentimental reasons for him to live there.

11. [564]

    I think that counsel’s argument is difficult to reconcile with the terms of SA s 88(2)(b). In any event, on the evidence it is unclear whether John’s condition is such that he would derive any real benefit from living at Bombi Road, or whether it would be feasible for him to do so. Furthermore, the family provision claim extends only to the half share of the Bombi Road property which Ruskin received from Karen. On the hypothesis which the Court is considering, the other half share, originally belonging to John, will remain with Ruskin and John will have no right to reclaim it. Even if counsel’s non-financial argument is available, it is not established on the facts.

12. [565]

    For these reasons, the family provision claim fails.

Conclusions

1. [566]

   I have concluded that:

   1. (1)

      the claim on John’s behalf for relief against the Lakshmi Trust appointorship transfer fails;

   2. (2)

      so too do does the claim made on John’s behalf for relief against the transfer of his half share of the Bombi Road property to Ruskin;

   3. (3)

      leave should be refused to John to pursue an equivalent claim with respect to Karen’s half-share of the Bombi Road property, but if leave had been granted, such a claim would likewise have failed;

   4. (4)

      the alternative family provision claim made on John’s behalf with respect to Karen’s half-share of the Bombi Road property also fails.

2. [567]

   In accordance with the agreement between the parties, there will be an order for Ruskin to provide an account with respect to the moneys paid by him out of his parents’ bank accounts between 3 March 2017 and 8 March 2022. John’s claims in the proceedings will otherwise be dismissed.

3. [568]

   On 16 December, I issued to the parties a draft of the judgment to this point. I invited them to confer and, if possible, agree orders giving effect to my conclusions dealing with costs. I also invited them to identify any errors or omissions which could conveniently be corrected before the delivery of formal judgment.

4. [569]

   This resulted in a further hearing on 18 December concerning the form of the decree and costs. Following the hearing, the parties agreed on orders providing for the account by Ruskin which had previously been agreed and for the proceedings to be otherwise dismissed with costs. They also agreed on the extension of an interlocutory restraint on Ruskin’s exercise of the Lakshmi appointorship power in case of an appeal against my decision.

Orders

1. [570]

   The orders of the Court are:

   1. (1)

      Order 1 made by the Court on 28 August 2025 restraining the First Defendant, his servants or agents, be extended until 6 February 2026.

   2. (2)

      The first defendant account to the plaintiff for the monies paid by him from the bank account of his parents, or either of them, as identified in Schedule A of the Fourth Amended Statement of Claim; noting that it is agreed between the parties that the right of the estate of the late Susan Karen Jeannine McLennan to such an account has passed to the plaintiff as residuary beneficiary of that estate.

   3. (3)

      The Fourth Further Amended Statement of Claim filed on 15 September 2025 be otherwise dismissed.

   4. (4)

      The plaintiff’s Notice of Motion dated 26 August 2025 (seeking leave to prosecute claims on behalf of the estate of the late Susan Karen Jeannine McLennan (Mrs McLennan) be dismissed.

   5. (5)

      The plaintiff to pay the first and second defendants’ costs of the proceedings and of the plaintiff’s notice of motion dated 29 August 2025.

   6. (6)

      The first defendant to file and serve, by 30 January 2026, an affidavit setting out, with respect to each of the transactions identified in Schedule A of the Fourth Amended Statement of Claim, and to the extent known:

   7. (7)

      Relist the matter on 4 February 2026 before the Registrar in Equity for further directions for the taking of the account referred to in paragraph 2 of these orders.