Peek v Wheatley

1. [1]

   The issue in these proceedings is whether an informal document found in the ‘Notes’ application on the iPhone of the late Colin Laurence Peek (Colin or the deceased), who died on 16 August 2022 aged 79 years, should be admitted to probate as an informal will under s 8 of the Succession Act 2006 (NSW).

2. [2]

   The informal document is entitled ‘Last Will of Colin L. Peek’ and is set out at [34] below (the Note). It was discovered on 19 August 2022 by the deceased’s solicitor, Mr Peter Dawson (Mr Dawson) at the deceased’s home when he and the defendant, Brad Anthony Wheatley (Mr Wheatley), were there looking for any original wills. No will executed in accordance with the formal requirements for wills was located. However, Mr Dawson found the Note on the ‘Notes’ application of the deceased’s iPhone. Under the terms of the Note, the bulk of the deceased’s estate (approximately $10.3 million) will pass to Mr Wheatley, with a smaller gift (approximately $990,000) to the deceased’s brother who is the plaintiff in these proceedings, Ronald William Peek (Ronald or the plaintiff). The rest of his estate is divided up through gifts to friends, including 5% to Mr Dawson (which amounts to approximately $308,495.53).

3. [3]

   On or about 9 February 2023, Mr Wheatley, who was named as executor in the Note, applied for probate over the Note pursuant to an order or orders being made under s 8 of the Succession Act. By statement of claim dated 19 May 2023, the plaintiff contends that the deceased did not intend the Note to operate as his will and absent any other document purporting to be testamentary in nature, he died intestate. As the deceased was not survived by a spouse, child or parent, Ronald, as the deceased’s only sibling, seeks an order for grant of letters of administration on the basis that he is entitled to the whole of the deceased’s estate under s 129 of the Succession Act.

4. [4]

   On 25 September 2023, Mr Wheatley filed a cross-claim seeking declarations that the informal will was valid and forms the will of the deceased (denying that the deceased died in intestate) and a grant of probate in similar terms to the 9 February application.

5. [5]

   For convenience, I will refer to the deceased and his family members by their first names without intending any disrespect.

Issues

1. [6]

   The issue for determination is whether the defendant has discharged his onus in propounding the Note as the deceased’s will. As explained below, this turns on whether the Note was intended by Colin without more on his part to have present operation as his will, or whether it was merely a preparatory step towards the making of a will (such as a draft or a note of instruction to be provided to Colin’s solicitor).

2. [7]

   Although it is not in dispute that the Note states the testamentary intentions of the deceased, the plaintiff submits that the Court cannot be satisfied that the deceased intended the Note, without more, to have immediate legal effect having regard to: (a) the circumstances in which the Note was created and subsequently found; (b) the evidence as to what Colin did (and did not) say about his testamentary intentions and the Note; and (c) the wider context of the evidence of Colin’s intentions and the manner in which he engaged in formal legal transactions.

Factual background

1. [8]

   Under this heading is set out the factual background, most of which is undisputed. Where there is dispute, the following should be taken as the findings of the Court. References to dates are to 2022 unless otherwise stated.

2. [9]

   Colin was born in May 1943, and was the younger brother of Ronald, who was born in March 1938 and was 86 years of age at the time of the hearing. Ronald gave evidence in the proceedings.

3. [10]

   Colin and Ronald were raised in Randwick, Sydney and both went to Randwick Public School and then attended high school: Bondi Technical School in the case of Ronald and Rainbow Street Public School in the case of Colin.

4. [11]

   Colin finished year 12 at Rainbow Street Public School in or around 1960. After school, he worked at the Commonwealth Bank of Australia for a few years and then when around 21 years of age, he started working as a chicken sexer in a poultry farm. During this time, Colin was still living at his parent’s home, and he and Ronald would see each other there from time to time. He worked hard and saved enough money to purchase a Cooper S motorcar and shortly afterwards, bought 30 acres of land in Marsden Park, Sydney for $20,000. He then established a poultry farm at this property.

5. [12]

   In 1966, Colin married Linda Aurisch and, in 1972, they adopted a child, Adam. Tragically, Adam died in 1987 by suicide, and Linda died in 1994 at the age of 50 as a result of cancer.

6. [13]

   Ronald married his current wife Lorraine in 1972 and they have a son, Aaron, born in 1974. Aaron gave evidence for the plaintiff in these proceedings. Ronald and Lorraine each have a daughter from a previous relationship.

7. [14]

   Ronald and Colin had a close relationship with each other throughout Colin’s life. Ronald was Colin’s best man at his wedding in 1966 and Colin was Ronald’s best man at his wedding to his first wife in 1959. Ronald gave evidence, which I accept, that he and his first wife and Colin and his wife, and their respective children, had a close relationship and they would regularly catch up and enjoy each other’s company.

8. [15]

   After Colin’s wife Linda died, Colin and Ronald remained close. They saw each other regularly, often at Colin’s home, where Ronald would assist with household and backyard chores. They otherwise kept in frequent contact by telephone, and bonded over their shared interest in cars, boating and sports.

9. [16]

   In 1997, Colin met Mr Dawson through a charity auction, where Mr Dawson had donated his legal services and Colin was the successful bidder in obtaining them. When Colin engaged Mr Dawson on a conveyancing matter, Colin joked ‘I paid a lot for this, so no fuck ups’. From that point on, Mr Dawson acted for Colin on hundreds of occasions (T17:4-9), and it became their ongoing joke that there would be ‘no fuck ups’. In 2001, Colin appointed Mr Dawson as his attorney pursuant to a power of attorney.

10. [17]

    In 2003, Colin decided to sell his home at Glenhaven and met Mr Wheatley who worked as an estate agent at the real estate agency which Colin engaged to act for him on the sale. Mr Wheatley deposed that since meeting Colin in 2003, they became close friends, and he describes Colin as a ‘mentor and a father figure’. Mr Wheatley deposed that he and Colin were in contact on a daily basis, multiple times by telephone and during the periods Mr Wheatley lived in the Hills District, he would attend Colin’s home on most days of the week.

11. [18]

    During the period from 2004 to around 2009 Colin lived at Newport, Sydney and owned a boat or boats which he operated there. In around 2009 he moved back to live at Glenhaven having purchased a house there in May 2008. He continued to live at this property until he sold it in November 2018 (with Mr Wheatley acting as the agent on the sale) and purchased a house at Bella Vista Waters, Sydney where he lived until his death in 2022.

12. [19]

    In 2014 Colin entered into a joint venture with Allam Homes Pty Ltd (Allam Homes) to subdivide, develop and construct houses on his property at Marsden Park which continued up to and including 2022.

13. [20]

    From the early 2000’s, Colin socialised regularly with Mr Dawson and Mr Wheatley. From around 2003, Mr Wheatley had ‘free and unrestricted access’ to Colin’s home, including fingerprint recognition for entry into the Bella Vista Waters property, which only he and Colin had, although access to the house could also be had through the garage using a remote control.

14. [21]

    Mr Dawson deposed that Colin had several long-term relationships over the last 25 years of his life which would have satisfied the criteria for de facto marriages, and for this reason he ‘badgered’ Colin to make a will to ensure his wishes would be reflected but ‘he continued to avoid the topic’. Despite these attempts, Colin never gave Mr Dawson instructions in these discussions that were sufficient for him to make a file note which would record Colin’s testamentary wishes.

15. [22]

    Mr Wheatley deposed that on or about Colin’s birthday on 1 May, he had a conversation with Colin, in which Colin asked Mr Wheatley to be the executor of his will and Mr Wheatley agreed to do so. Mr Wheatley deposed that he then said to Colin that he needed to organise his will as ‘I can’t be the executor of nothing’, which led to a discussion in which Colin said that he would not leave his estate to his brother and his family because while he loved his brother, ‘I do not want his son Aaron or his wife Lorraine and her first family getting any part of my wealth when I’m gone. I have had nothing to do with any of them and they’re not my family as far as I’m concerned.’ Colin also said that he regarded Mr Wheatley as ‘not only a mate but in so many ways you’re the son that I lost’. Mr Wheatley deposed that in this discussion he encouraged Colin to be generous to his brother, and ‘at least make him financially comfortable and give him the car’.

16. [23]

    During July, Mr Wheatley deposed that Colin told him he had been waking every night at around midnight feeling unwell. He would get out of bed, put on the radio app on his mobile phone and have a cigarette and a glass of milk.

17. [24]

    On 21 July, Colin attended a meeting with Mr Dawson at his office in Dural in relation to an insurance claim. Due to Mr Dawson’s ill health and COVID-19, Mr Dawson had not seen Colin in person since Christmas 2021, although they had spoken regularly during that period. Mr Dawson had been ‘shocked at Colin’s appearance’ and he told Mr Dawson that he had difficulty walking more than 20 metres.

18. [25]

    At this meeting, Mr Dawson raised with Colin the importance of making a will. Mr Dawson deposed that they had a conversation in the following terms:

19. [26]

    This conversation is reflected in a contemporaneous file note Mr Dawson recorded of the meeting. I note that Colin said twice that he would send through his instructions to Mr Dawson (which is confirmed by the file note). In cross-examination, Mr Dawson said that Colin would only ‘possibly’ send through his instructions within the next week or so and this was because his tone in the conversation indicated that ‘he did not want to talk about making a will’ (T20.20-30).

20. [27]

    When Colin returned home after the meeting, his cleaner Ms Judith Jones (Ms Jones) was there and she deposed that Colin said to her ‘Jude, I have a dilemma. I need to do something about my Will. I’m not sure what to do but there is no way Aaron is driving my cars or getting my Rolexes.’ I refer below to the evidence of Ms Jones regarding her occasional chats with Colin about making a will.

21. [28]

    Between 21 July and 1 August, Colin and Mr Dawson exchanged emails in relation to the insurance claim, but Mr Dawson did not receive any further instructions in relation to the will. In cross-examination, Mr Dawson said that the emails up to 1 August were all of the email correspondence he had had with Colin after his conversation with him on 21 July (T21).

22. [29]

    On 2 or 3 August, Colin had a chest scan because he was coughing incessantly and struggling to breathe. Mr Wheatley deposed that he observed that Colin was unable to walk more than 20 metres without stopping to catch his breath.

23. [30]

    On 3 August, Mr Wheatley cooked Colin and himself dinner at Colin’s house in Bella Vista and went home around 8:45pm. At around 12:30am, Mr Wheatley received a call from Colin and while he could hear and recognise his voice, he could only understand the words ‘ambulance here’ and ‘need access’. The latter was a reference to the fact that Mr Wheatley had access to Colin’s home through a fingerprint recognition entry system which Colin used in lieu of keys. Mr Wheatley drove to Colin’s house immediately and found him lying on his bed. Colin told him that he had called 000 asking for an ambulance and that ‘he thought he would die’. Mr Wheatley helped him downstairs, brought him some mango juice and at about 1:15am he called 000 again to ask the ambulance to hurry. Paramedics arrived after 2am. By that time, Colin had consumed about 1.5 litres of juice and smoked several cigarettes. He appeared to be feeling better and was able to converse with the paramedics.

24. [31]

    On questioning by the paramedics, Colin revealed that he had not been testing his blood sugar levels prior to injecting insulin twice a day saying he ‘didn’t have time for that rubbish’. He had lost a significant amount of weight in the preceding two months yet continued to take the same 80mg dose of insulin in each injection. Mr Wheatley heard the paramedics advise him that he was ‘close to a diabetic coma and possibly therefore to death’. The paramedics asked Mr Wheatley to make Colin a jam sandwich to sustain his blood sugar levels while he slept. The paramedics wanted to take Colin to Norwest hospital, but he declined saying he was fine.

25. [32]

    Mr Wheatley gave new evidence in cross examination (T78) that at about 3.30am, after the paramedics had left, he and Colin had a conversation to the following effect:

26. [33]

    Mr Wheatley deposed that Colin was shaken by this experience and agreed that going forward he would monitor his blood sugar levels before administering insulin. He did not have a diabetes blood sugar monitor, and later in the morning of 4 August, Mr Wheatley took Colin to purchase one. Colin also called his GP, Dr Geoffrey Morgans, about his insulin dosage and was advised to reduce it to 50mg and to keep in touch.

27. [34]

    On 4 August at 4:25pm, the Note on Colin’s iPhone was created. A screenshot of the Note taken on Colin’s iPhone by Mr Dawson on 19 August appears below. I note that the wording in the right-hand column appears underneath that in the left-hand column in the original version on the iPhone itself, and the first two lines in the right-hand column are a repeat of the last two lines of the first column (and that repetition does not appear in the original version on the iPhone).

28. [35]

    The parties accept that at 1:35am on 5 August Colin closed the Note (as indicated by the date and time at the top of the screenshot). The evidence establishes that it was not reopened until 19 August when Mr Dawson discovered it when looking through Colin’s iPhone.

29. [36]

    Mr Wheatley rang Colin on 5 August at about 8am. Colin told Mr Wheatley that he had again awoken around 12:30am not feeling well but it was not as bad as the previous night. He had gone back to bed at around 2am and slept until 7am. Colin told him that following the adjustment to his insulin dosage, he was able to sleep through the night again.

30. [37]

    On 5 August, Telstra call logs reveal that Colin called Dural Legal Centre two times at 3:37pm and did speak briefly with Colin on that day but has no recollection of the discussion. These calls are referred to in the discussion of Mr Dawson’s evidence below. These calls on 5 August appear to be the last time Mr Dawson and Colin spoke to each other before Colin’s death. The Telstra call logs also disclose a text sent by Colin to Mr Wheatley on 5 August but there is no evidence as to what it contained.

31. [38]

    Ronald deposed that 9 August was the last time he saw Colin before he died.

32. [39]

    On 11 August, Ms Jones deposed that she had a conversation with Colin in which he said words to the effect ‘I have finalised my will and I decided to leave a small percentage to my brother Ron…’. Ms Jones deposed that he did not say or give her any indication of his intentions regarding the balance. I deal with this evidence below. This was the last time she saw Colin before he died. This conversation is the only evidence of Colin telling anyone about a will, and it occurred about a week after the creation of the Note on his phone.

33. [40]

    On 12 August, Mr Wheatley asked Colin to chase up the results of his chest scan.

34. [41]

    On 13 August, Mr Wheatley inspected an apartment in Milsons Point which was for sale and later had a conversation with Colin about it. I refer to this evidence below. In this conversation Colin discouraged Mr Wheatley from purchasing the apartment, but did not say he had finalised his will although he had the opportunity to do so.

35. [42]

    On 15 August around midday, Colin called Mr Wheatley to tell him the results of the scan had been received but could not be read due to excessive fluid in his lungs and abdomen. He had been told by medical staff at Norwest Hospital that he needed to attend the hospital so that they could drain the fluid, run tests and then retake the scan. Mr Wheatley offered to take him immediately, but Colin told him that the hospital had no beds. Mr Wheatley offered to take him to Westmead Hospital instead, but Colin said he was fine and wanted to go to Norwest. They agreed that Mr Wheatley would collect him the next morning and drive him to hospital. Mr Wheatley spoke to him again at 6:30pm that night for the last time. In none of these conversations did Colin mention that he had made a will.

36. [43]

    Early on 16 August, Colin passed away in his sleep.

37. [44]

    Greg Jones, a friend of Colin, deposed that he was the last person to speak with Colin on 15 August and the first person contacted by NSW Police on 16 August, to inform him of Colin’s death. At 9:28am, Mr Jones rang Mr Wheatley and told him that Colin had died. Later that day both Ronald and Mr Wheatley were informed by NSW Police that Colin had died, in Ronald’s case by a visit to his home and in Mr Wheatley’s case by a telephone call.

38. [45]

    Mr Dawson also received a telephone call from NSW Police on 16 August advising him of Colin’s death and deposed that as he was aware Mr Wheatley had palm identification access to Colin’s home, he rang him and asked him not to enter the home until Mr Dawson could accompany him. This is an area where Mr Dawson and Mr Wheatley’s evidence diverges as Mr Wheatley could not recall having a conversation with Mr Dawson in which he said that. During this discussion Mr Dawson agreed to organise the funeral service for Colin and arranged to meet Mr Wheatley at Colin’s house on Friday, 19 August.

39. [46]

    On 19 August, Mr Dawson and Mr Wheatley met at Colin’s home and Mr Wheatley used his fingerprint recognition to access the house. Mr Dawson asked Mr Wheatley to look for a will or any other legal documents and they proceeded to the study and searched in the desk, filing cabinets, cupboards and computer. Mr Dawson located birth certificates for Colin, his late wife Linda and his deceased son Adam, and the marriage certificate of Colin and Linda, but they did not locate a will. Mr Dawson picked up Colin’s iPhone and began looking through it and found the Note. After showing the Note on the screen of the phone to Mr Wheatley, Mr Dawson then took a screenshot of it and forwarded a copy of it by email to his office email address to ensure that it would not be lost.

40. [47]

    It was not until Mr Wheatley’s affidavit sworn and served on the first day of the hearing that he disclosed details of his visits to Colin’s house between 16 August and 19 August, and the manner in which Colin’s iPhone was handled by him and Mr Dawson after 19 August. Similarly, Mr Dawson did not include in his affidavit any evidence or explain how it came to be that many of the text messages and emails on Colin’s iPhone came to be deleted. This evidence is referred to later in these reasons.

Colin’s estate

1. [48]

   According to the affidavit of the executor sworn 2 February 2023, the gross value of Colin’s estate is approximately $13,643,074.14. It comprises approximately $6.2 million cash in an ANZ bank account; $5.6 million worth of ‘shares’ in Peek Property Pty Ltd, Peek Investment Trust and CL Peek Pty Ltd; a loan to A and J Jones of $1.4 million; and four luxury cars with a combined value of $450,000. The liabilities of the estate (which the executor was aware of at the time he swore his affidavit) were small amounts owed to contractors, including approximately $8,000 owed for electrical works, $6,000 for house repairs, $4,000 for waterproofing and $500 to Ms Jones for cleaning.

2. [49]

   After deducting liabilities, the net value of the estate is around $13,623,327.14.

Witnesses

1. [50]

   The plaintiff and the plaintiff’s son, Aaron, each made one affidavit and were cross-examined.

2. [51]

   Ronald deposed that he and Colin had always been close, and Ronald would refer to him as his ‘best mate’ starting from when he was young and continuing throughout his adult life. He deposed that ‘[w]hile Col was five years younger than me, we both got along very well and would be in regular contact. I did not have any periods of estrangement from my brother’. I have referred to Ronald’s evidence of their close relationship in the factual background above.

3. [52]

   In 2006, Colin made a gift to Ronald of $8,000 for his birthday to enable him to go to France to watch the Tour de France. Colin did this because of Ronald’s love of cycling.

4. [53]

   Ronald deposed that shortly before Ronald left for France, he had a conversation with Colin about wills as follows:

5. [54]

   He deposed that this was the last time they spoke about wills, and that he did not do his will at that time. He also deposed that this was the first time he had heard Colin mention Mr Dawson. Ronald was not challenged in cross-examination on this evidence and I accept it.

6. [55]

   Ronald gave evidence in his affidavit that they continued to have a close relationship in the last years of Colin’s life and spoke regularly on the telephone. However, the documentary evidence revealed that their contact was perhaps less frequent than Ronald perceived. Call logs showed that Ronald and Colin only spoke a couple of times a week at most, and many times Ronald’s calls would go unanswered. Ronald also gave an account in his affidavit of conversations and interactions with Mr Wheatley after Colin’s death which it became apparent in cross examination was not reliable. Ultimately, none of this evidence is material to the issue for determination.

7. [56]

   Aaron made one affidavit in these proceedings and was cross-examined. However, none of his evidence is relevant to the issue for determination and it is not necessary to refer to it.

8. [57]

   The defendant relied on the evidence of Mr Dawson, Mr Wheatley, Ms Jones (each of whom was cross examined) and six friends of the deceased.

9. [58]

   At the outset it is necessary to address the manner in which the evidence relied on by the defendant was prepared. Mr Dawson acted in the proceedings despite being a primary witness and having a financial interest in the outcome of the proceedings, putting him in a position of conflict between his personal interest and his duty to the Court.

10. [59]

    In cross-examination, Mr Dawson was asked about the process he undertook in preparing the affidavits for the defence. He agreed that the affidavits were not going to be rushed, and he was careful in their preparation in the ‘normal process’ of ‘[t]aking instructions by email and with people scattered, seeking instructions and preparing affidavits, submitting them for approval’: T13.30-40. When asked if he wanted the affidavits to be as complete as possible, he answered ‘as required, yes’: T14.35-40. He agreed that as an officer of the court, he knew he needed to be candid with the court and include all relevant information, including that which was both helpful and unhelpful to his case. Though he later clarified that he would not be rushed, not because he took time in extracting as detailed instructions as he could from each witness, but rather he ‘wouldn’t be rushed because I was extremely ill’: T15.25-30.

11. [60]

    Mr Dawson agreed that one of the things that he knew was important to include was any conversations that any person had had with Colin about his will. When asked whether that was one of the things he asked witnesses to provide instructions about, he said that ‘I was being careful not to suggest anything to the witnesses. So I took down only what they told me.’: T15.5-10. When asked whether he asked witnesses ‘did you have any conversations with Colin about his will?’, he said ‘I didn’t necessarily ask that question, no’ but he agreed that that was the information he was trying to extract from them, in addition to ‘anything about the will’ or ‘forming the intentions of Colin in relation to a will’: T15.10-20.

12. [61]

    The professional rules applicable to solicitors in New South Wales during these proceedings were the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (2015 Rules). Under the 2015 Rules, Mr Dawson was required to avoid any compromise in his integrity and professional independence, and act in the best interests of his client (rr 4.1.1 and 4.1.4) and to exercise the forensic judgments called for during the case independently (r 17.1). Rule 27.1 deals with the situation where a solicitor, as here, will be a material witness in a case. It provides:

13. [62]

    Under r 27.2, as it was apparent from at least the commencement of the proceedings that Mr Dawson would be required to give evidence material to the determination of contested issues before the court, and he should not have acted or continued to act for the defendant if doing so would prejudice the administration of justice.

14. [63]

    The courts have on many occasions drawn attention to the risk posed to the administration of justice where a solicitor acts in proceedings before the court while the solicitor also has a personal interest in the outcome. In Barrak Corporation Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395 Adamson J (as her Honour then was) (Barrett JA and Sackville AJA agreeing) said at [47]:

15. [64]

    In the same case, in short concurring reasons, Barrett JA said of r 19 of the Professional Conduct and Practice Rules 1995 (NSW) which was in materially similar terms to r 27.2 of the 2015 Rules:

16. [65]

    The passage from the judgment of Brereton J in Mitchell v Burrell [2008] NSWSC 772 to which Adamson J referred is as follows (emphasis added):

17. [66]

    These observations of Brereton J were made in the context of an application to restrain a solicitor from acting for a client in proceedings where the solicitor was a material witness, but the observation highlighted is equally applicable to the question of the weight to be given to evidence where it is prepared by a solicitor acting in such circumstances.

18. [67]

    In my view, Mr Dawson ‘crossed the line’ referred to by Brereton J in the present case because he had a clear conflict between his personal interests and his overriding duty to the court and the administration of justice. He had a personal interest in the outcome of these proceedings (he stands to benefit under the informal will his client propounds), he was a material witness in the proceedings (having been Colin’s lawyer and friend and in contact with him around the time that the informal will was drafted and was in Colin’s house several times after his death with possession and control of critical evidence, including the iPhone after Colin’s death) and he was the solicitor on the record for the defendant (preparing evidence in support of the informal will).

19. [68]

    While it is not appropriate that the court express a view on whether Mr Dawson engaged in professional misconduct by reason of a breach of r 27.2 of the 2015 Rules, his conflict of interest and duty affects the probative value of the evidence of all the witnesses for the defendant, as Mr Dawson was responsible for preparation of all that evidence.

20. [69]

    Mr Dawson was cross-examined about his role in preparing all the affidavits and in relation to the affidavit of Mr Wheatley the following exchange occurred:

21. [70]

    The fact that Mr Dawson discussed with Mr Wheatley the evidence he would give on matters on which there was overlap with Mr Dawson’s own evidence was improper and seriously undermines the probative value of the evidence of both of them because the court cannot be certain as to the extent to which their recollection of events is truly independent, or rather has been influenced by the version of the events given by the other. I refer to what was said in Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110 at [30] by Sheller JA (McColl JA and Windeyer J agreeing):

22. [71]

    Mr Dawson made two affidavits in these proceedings, one sworn on 12 December 2022 and the other on 19 June 2023. Mr Dawson’s affidavit of 12 December 2022 was not read as it was substantially the same as the later one. Mr Dawson was cross-examined.

23. [72]

    Mr Dawson described the relationship between Colin and Mr Wheatley as a ‘close family, filial relationship’, and that ‘Mr Wheatley became the son Colin had lost when Adam died’.

24. [73]

    Mr Dawson deposed that he was concerned to discover that Colin did not have a will and several times each year, Mr Dawson would remind him that he should make one. Colin’s reaction was to say words to the effect, ‘I don’t know who or what to leave my money and stuff to’. Mr Dawson said that they initially had discussions about options for where his money could go to, including charities, but nothing was progressed.

25. [74]

    Mr Dawson deposed that ‘one thing about which Colin was adamant was that his estate was not to pass to his brother Ronald. Colin told Mr Dawson that he loved Ronald, but his feelings toward Ronald’s wife and son bordered on hatred, and Colin said words to the effect ‘I’m bloody determined that they won’t benefit from my estate’. Mr Dawson deposed that this sentiment was repeated for years afterwards.

26. [75]

    Mr Dawson deposed that he attempted to use sarcasm to generate discussion with Colin about his will, including saying, ‘Come on mate, you know you’re going to leave it all to Brad. Put it in writing.’ to which his continued reply was ‘Hah, that’s what he thinks, but he’s got to earn it’. Despite these attempts, prior to 21 July 2022, as noted earlier Colin never gave Mr Dawson instructions that were sufficient for him to make a file note which would indicate his testamentary wishes.

27. [76]

    On 21 July 2022, Colin met Mr Dawson at his Dural office to discuss an insurance claim and the topic of the need for Colin to make a will was discussed. I have referred to the evidence regarding this meeting earlier, including Mr Dawson’s contemporaneous file note.

28. [77]

    Mr Dawson did not include in his affidavit evidence details of any conversations with Colin between 21 July and Colin’s death on 16 August. When asked in cross-examination if he had any telephone conversations with Colin during this period, Mr Dawson said ‘I don’t think so. I don’t remember any.’: T21.5-15. Telstra call logs of ingoing and outgoing calls and messages from Colin’s phone were put to Mr Dawson in cross examination, which showed that Colin had called Dural Legal Centre (on their landline telephone number) on 28 July 2022 at 11:45am for a duration of 145 seconds (about two and a half minutes). When asked if that jogged Mr Dawson’s memory about whether or not he had had a phone conversation with Colin during that period, Mr Dawson said ‘no’, but then added ‘Sorry, that’s my office number. He may have been talking to my staff.’: T21.35-45.

29. [78]

    On 5 August, Colin then called Dural Legal Centre another two times at 3:37pm. The first call lasted for 0 seconds, while the second call lasted for 232 seconds (approximately 4 minutes): Exhibit 2, page 8. Again, Mr Dawson’s evidence was that it did not jog his memory as to whether or not he had had a conversation with Colin on that day: T21.45-T22.10. Later on the same day at 5:19pm, Mr Dawson used his personal mobile phone to call Colin and they spoke for 21 seconds: Exhibit 2, page 8. In relation to this call, Mr Dawson gave evidence that ‘It shows that I may have called Colin on that day, but it doesn’t jog my memory. 21 seconds. May have been anything.’: T22.10-15. The effect of Mr Dawson’s evidence was that although he could not recall speaking to Colin on 5 August, he did not explain what these calls were nor was any witness called by the defendant to explain them. These calls on 5 August were the last time Colin attempted to speak to Mr Dawson before his death. The email correspondence between Mr Dawson and Colin between 21 July and 1 August (Ex F) does not suggest that there was any outstanding issue regarding the insurance claim that needed to be discussed between them.

30. [79]

    In relation to the custody of the iPhone after Colin’s death, Mr Wheatley’s affidavit of 28 October 2024 reveals that when Mr Dawson left Colin’s house on 19 August 2022, he took the phone to his office in Dural. On 22 August 2022, Mr Dawson received calls on the phone from the deceased’s electrical contractors who were unaware of his death. On 25 August 2022, Mr Dawson provided the phone to Mr Wheatley to enable him to monitor and respond to incoming calls and text messages. In January 2023, as repairs to Colin’s home were completed, Mr Wheatley deposed that he returned the phone to Mr Dawson but retained the sim card to continue to deal with incoming calls and text messages. On 21 March 2023, the plaintiff’s solicitors requested screenshots of the Note. On 23 March 2025, attempting to comply with the plaintiff’s solicitors request, Mr Dawson opened the Note in the phone, thereby changing the ‘last edited’ time stamp to 23 March 2023. On 17 October 2023, Mr Wheatley returned the sim card to Mr Dawson, and the phone and sim card were then collected by the court-appointed expert, Mr Sobbi, and remain in his possession.

31. [80]

    Mr Dawson did not include in his affidavit details of anything of which he was aware occurring between 16 August and 19 August 2022, or afterwards, including anything which would explain how it came to be that many of the text messages and emails on Colin’s phone were subsequently deleted.

32. [81]

    Mr Wheatley made three substantive affidavits in these proceedings, which were sworn on 2 February 2023, 19 June 2023 and 28 October 2024 (the first day of the hearing), and was cross-examined. The first two affidavits were in substantially the same form. He also swore an additional affidavit on 2 February 2023 made as Executor of Colin’s estate, setting out the assets and liabilities of the estate. Mr Wheatley would be entitled to the majority of the deceased’s estate under the terms of the informal will (approximately $10,322,353.96).

33. [82]

    I have set out earlier the relevant evidence in Mr Wheatley’s first two affidavits. One matter which should be dealt with in more detail is a conversation with Colin on 13 August after Mr Wheatley had looked at a one-bedroom apartment in Milsons Point, Sydney. Mr Wheatley met Colin for a drink that afternoon and deposed that they had the following conversation:

34. [83]

    As noted earlier, while Colin told him he had ‘won the lottery that day you met me’, he did not mention in this conversation that he had already made his will.

35. [84]

    Mr Wheatley’s affidavit sworn 28 October 2024 gave new evidence on two matters: first, new evidence that during the period from 16 to 19 August, Mr Wheatley had attended Colin’s house on two occasions which had not been included in his earlier affidavits; second, a summary of the persons in possession of Colin’s iPhone after his death and at what dates.

36. [85]

    As to the first matter, it was revealed that on 16 August, Mr Wheatley attended Colin’s home and observed one of the police officers who was present take possession of Colin’s iPhone. While monitoring previous calls, the police officer called the number of Gregory Jones but immediately terminated the call. Before leaving, the police officer placed the phone in a desk drawer. On 18 August, Mr Wheatley attended Colin’s home and placed Colin’s phone on charge. Then after removing the phone from charge, he picked up his coat with the same hand and left the property holding the phone. After driving 500 metres, he realised he still had the phone under his coat and went back and returned it to the desk drawer in the house.

37. [86]

    On the second day of the hearing, Mr Wheatley volunteered new evidence while under cross examination that he also visited Colin’s property on 17 August, during which he took the bins in, checked the garage was locked and then went to the desk drawer to check the items the police placed there, were in fact there, which included the phone (T88). When checking Colin’s phone, he noticed a missed call and voicemail.

38. [87]

    In cross-examination Mr Wheatley was asked why he had not referred to these additional visits to the property in the period from 16 to 19 August in his earlier affidavits and whether he had told Mr Dawson that he attended Colin’s property on 18 August. In relation to the former, he did not think it was relevant and in relation to the latter, he said that he told Mr Dawson but could not specifically recall if Mr Dawson told him that he should not attend the property (T80).

39. [88]

    As to the second matter, Mr Wheatley was cross-examined about the contents of Colin’s phone while it was in his custody, including text messages and emails sent and received, leading to the following exchange:

40. [89]

    It is clear from this evidence and the expert evidence that texts and emails have been deleted from Colin’s phone since his death and while in the custody of Mr Dawson and Mr Wheatley. Contrary to what Mr Wheatley said about this in the above evidence, the forensic expert, Mr Sobbi, does not explain why the email Mr Dawson sent from Colin’s phone on 19 August no longer appears on it. The evidence that texts and emails have been deleted from Colin’s phone creates uncertainty as to whether the court has the full picture as to the contents of the phone at the time of Colin’s death.

41. [90]

    The Telstra call logs of ingoing and outgoing calls and messages from Colin’s phone were put to Mr Wheatley in cross examination, and showed in addition to many calls between them, that Mr Wheatley received a text from Colin on 5 August. He accepted in cross examination that he had received this text but gave no evidence about what it contained (T79).

42. [91]

    Ms Jones made one affidavit in these proceedings sworn 19 January 2023 and was cross-examined. Ms Jones would receive $50,000 under the informal will.

43. [92]

    Ms Jones was Colin’s cleaner between 2009 and the date of his death in 2022, during which time the two became friendly.

44. [93]

    Ms Jones deposed that Colin would occasionally discuss with her how he would distribute his assets in the event of his death. Ms Jones recalls suggesting to Colin that he should bequeath his property to charity and relatives to which Colin had a firm response regarding his relatives, that they ‘… will get a very small percentage, if any’. She deposed that Colin made it clear to her that he loved his brother Ronald, but said that Ronald was not in good health, and that ‘if Ronald dies all my money will go to Lorraine and her family. And that’s not going to happen.’

45. [94]

    Ms Jones deposed that she last saw Colin on 11 August 2022 when she cleaned his home. Colin had been in poor physical health and was deteriorating but she observed that his mind was as sharp as ever. On that day, Colin said to Ms Jones words to the effect ‘I have finalised my will and I decided to leave a small percentage to my brother Ron…’. When pressed in cross examination on what she meant by ‘words to the effect’ she said ‘All I know is that’s exactly what he said: I have finalised my will’, and also that Colin said ‘a small percentage to his brother’ (T107). I accept this evidence.

46. [95]

    Ms Jones deposed that Colin did not say or give her any indication of his intentions regarding the balance. This conversation is the only evidence of Colin telling anyone something about his will, and it occurred about a week after the creation of the Note on his phone.

47. [96]

    The remaining witnesses for the defendant were friends of the deceased, and each made one affidavit in these proceedings, predominantly on the subject of the testamentary intentions of the deceased. None of them were cross-examined.

48. [97]

    Each of them, except for Andrew Jones and Susan Moor, included a paragraph stating: ‘I have seen the document recorded on Col’s mobile phone and titled “Last Will of Colin L. Peek”. I say that such document is not inconsistent with the general indications Col gave to me regarding his testamentary intentions.’ Mr Dawson said in cross examination that this was his phraseology (T35.34).

49. [98]

    Ms Butler made one affidavit in these proceedings sworn 19 December 2022 and was not cross-examined. She describes herself as a former partner of Colin from October 2016, and they lived together between March 2017 and April 2019. Ms Butler has no financial or other interest in Colin’s estate.

50. [99]

    Ms Butler deposed that during the time they lived together, Colin discussed with her his wishes upon his death, and that ‘[h]e tended to be quite vague about the detail but some matters were made very clear to me’, which were: first, Mr Wheatley was to be the executor of his estate and major beneficiary; second, he did not wish to leave money to his brother Ronald as he detested Ronald’s wife and children and did not wish them to receive any benefit from his estate; third, he intended to leave some money to the ‘Jones boys’ who she knew included Andrew and Greg Jones.

51. [100]

    Mr Jones swore one affidavit in these proceedings on 20 December 2022 and was not cross-examined. Under the Note, a loan he had received from the deceased for the value of $1,400,000 would be ‘wiped’, ie waived.

52. [101]

    Mr Jones is the Managing Director of Jones Brothers Family Farm Pty Ltd. He has known the deceased all his life. Mr Jones describes the deceased as ‘a mentor, a friend, a business adviser and a father figure to me following the death of my own father many years ago’.

53. [102]

    Mr Jones deposed that he and his family had a business relationship with Colin for the past 20 years of his life. In the early days, his family had rented the Marsden Park property from Colin which was conducted as a chicken farm, housing about 50,000 layer chickens and they would meet regularly and discuss the egg industry. When the Marsden Park property became a residential development site they continued to have a business relationship. In addition, he attended social functions with Colin and got to know his friends and several of his partners. He deposed that while Colin had affection for Ronald, this did not extend to Ronald’s wife and son, and called Colin saying to him words to the effect that ‘Ron will never get any of my money’.

54. [103]

    Mr Jones also gave the following evidence regarding his discussions with the Colin concerning his will (emphasis added):

55. [104]

    Mr Hyde-Smith made one affidavit sworn 13 January 2023 and was not cross-examined. He would receive 5% of the deceased’s estate under the informal will.

56. [105]

    Mr Hyde-Smith is the Development Manager for Allam Property Group (which is a related entity of Allam Homes with which Colin entered into a joint venture in 2014 to develop the Marsden Park property). Mr Hyde-Smith’s role required him to report to the joint venture partners on a regular basis regarding the progress of the development. He deposed that ‘[f]rom the very beginning Col would call me regularly and I would drop into his home on Friday afternoon for drinks at his bar. Many of Col’s friends also attended those Friday drinks including Mr Wheatley (Brad).’

57. [106]

    He deposed that ‘Typically Col would call me once a week and sometimes more. Business was always discussed but we became good friends and our conversations became more personal. Over time Col met all my family and he spent time with us, and in addition I maintained his pool, helped with tasks and just spent time watching football with him.’

58. [107]

    Mr Hyde-Smith deposed that Colin told him on several occasions that he did not have a will and asked Mr Hyde-Smith what he should do. Mr Hyde-Smith deposed that he ‘always advised him to see his solicitor and get his affairs in order.’ But went on to say that ‘[i]t did appear however that whenever we discussed the topic Col considered he had plenty of time left and many things still to do. I believe that making a will was always going to be a late decision for him.’

59. [108]

    Mr Hyde-Smith deposed that Colin did not speak about his family much. He deposed that ‘I became aware of his brother Ronald when I visited Col at home and Ronald was there to do the gardens. Col said that he did not have time for Ronald’s family and when I asked if they ever did spend time with him Col’s reply was “No”‘.

60. [109]

    With regards to his estate, Mr Hyde-Smith deposed that Colin said that he would leave his brother a car but that was all, ‘[t]hat was the only definite statement Col made about his testamentary wishes’. Mr Hyde-Smith deposed that Colin’s closest relationship was with Mr Wheatley, ‘[t]hey were very close and it was apparent that the relationship was special to Col because Brad was a topic of conversation at every visit and was regularly present’. Colin was ‘also close to the Jones family, with whom he had a business relationship but who also visited him regularly. Col was a mentor and in many ways part of their family.’

61. [110]

    Mr Jones swore one affidavit in these proceedings on 19 January 2023 and was not cross-examined. Under the informal will, he would receive 5% of the deceased’s estate.

62. [111]

    Mr Jones deposed that he first met the deceased at their place of work in the 1970s and they remained close friends for 50 years. They enjoyed many social occasions with their respective partners and Mr Jones believed that he ‘knew Col better than anyone else’.

63. [112]

    Mr Jones deposed that based on his observations and what Colin told him over the years, ‘Brad was a great mate to Col and Col loved him like a son. They had great respect for and enjoyed the company of each other. Brad helped Col in many ways and would visit Col almost daily.’ He deposed that Colin told him on numerous occasions over many years and ‘in his inimitable colourful language’ that he did not intend to leave his estate to his brother Ronald because he did not want any of his money to go to Ronald’s family, and while he did not tell Mr Jones his specific testamentary intentions, Colin did on several occasions indicate to him that Mr Wheatley would be the major beneficiary of his estate.

64. [113]

    Ms Moor swore one affidavit in these proceedings dated 19 January 2023 and was not cross-examined. She is the partner of Gregory Jones and had been a close friend of Colin since they first met in 1997 seeing Colin on many social occasions and friendly catchups. She last saw Colin a few weeks prior to his death.

65. [114]

    Ms Moor deposed that Colin often spoke kindly of his brother Ronald, but at the same time made it very clear that he did not wish any of his money to pass to Ronald’s family. She also deposed to witnessing the friendship between Colin and Mr Wheatley.

66. [115]

    Ms Kirk made one affidavit sworn 6 February 2023 and was not cross-examined. She is the Company Secretary of Allam Property Group and in that role met with Colin and the other representatives of the joint venture on a regular basis for eight years. The venture was successful, and Colin received a substantial share of profits.

67. [116]

    Ms Kirk deposed that in approximately May 2022, she and Colin were having a general chat when he told her that he did not have a will. Ms Kirk was concerned and advised Colin words to the effect ‘Colin, you need to formalise your wishes sooner rather than later.’ She deposed that Colin then said he would do so soon, and specifically that he would leave some money to his brother Ronald, he wanted to look after his best friend Mr Wheatley who had been a major support and friend for a long time and he also wanted to leave something to Mr Hyde-Smith.

68. [117]

    Mr Navid Sobbi was the joint court appointed expert to conduct a forensic examination of Colin’s iPhone. He prepared a report dated 16 November 2023 and a supplementary report dated 13 December 2023, and was cross-examined. His area of expertise is digital forensic examination. He holds a Bachelor of Laws and a Masters degree in International Security majoring in Digital Forensics and Counterterrorism. He also holds a Diploma in Security and Risk Management and has a Certificate 4 in Government Fraud Control and Investigative Services.

69. [118]

    There was no dispute as to Mr Sobbi’s evidence, which can be summarised as follows.

    1. (1)

       The Note was created on 4 August 2022 at 6:25am, and he was of the opinion that the document was created on that date. He did not find any evidence that the Note was last edited on 5 August 2022 at 1:35am, despite that date appearing on the screenshot. The Note was the only document in the notes application found on the iPhone.

    2. (2)

       The Note was last opened on 22 March 2023 at 11:32pm and modified/closed on 22 March 2023 at 11.33pm but he could not determine what edits (if any) were made. (I note that based on the evidence before the court, it is not in dispute that there were no changes to the Note after 5 August 2022 and hence that there were no ‘modifications’ after that date.)

    3. (3)

       The following data was able to be extracted from the iPhone: 10 voicemails (with dates ranging from 16 February 2022 to 13 October 2022), 87 contacts, 5 call logs (with dates ranging from 17 August 2022 to 13 October 2022) and 85 images. No SMS messages or emails were recovered.

70. [119]

    In relation to the limited amount of data found on the iPhone, Mr Sobbi opined in his supplementary report as follows:

Principles on informal wills

1. [120]

   Section 6 of the Succession Act outlines how a will should be executed and requires that:

2. [121]

   Section 8 of the Succession Act outlines the circumstances when a Court may dispense with the formal requirements for making a will under s 6, and provides relevantly:

3. [122]

   There are three requirements to satisfy s 8: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] per Powell JA; The Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 at 452. First, there must be a ‘document’ within the meaning of s 3(1) of the Succession Act by reference to Schedule 4 of the Interpretation Act 1987 (NSW). There is no dispute that the Note is a ‘document’ for the purposes of the Succession Act.

4. [123]

   Second, the document must purport to state the testamentary intentions of the deceased: s 8(1)(a). Testamentary intentions are intentions about what is to be done with a person’s property upon that person’s death. There is also no dispute that the Note purports to state the deceased’s testamentary intentions.

5. [124]

   Third, the deceased must have intended the document to form his will: s 8(2)(a). In determining this question the court may, in addition to the document itself, have regard to evidence of the manner in which the document was executed, the testamentary intentions of the deceased, including evidence of statements made by the deceased as well as any other matters relevant to that question: s 8(3) and (4). The relevant intention need not exist at the time of the document’s creation so long as the document was subsequently adopted by the deceased as his or her final will through words or conduct: Kemp v Findlay [2025] NSWCA 46 (Kemp v Findlay (CA)) at [188].

6. [125]

   It is this third element which is in dispute. As Ward P (with whom Leeming and Ball JJA agreed) said in Kemp v Findlay (CA) at [3]:

7. [126]

   In Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 at [17]-[20], Meagher JA (White and McCallum JJA agreeing) made the following observations regarding this critical question:

8. [127]

   In [17] above, reference is made to observations of Mahoney JA in Estate of Masters at 455. The full passage from that judgment is as follows:

9. [128]

   In Kemp v Findlay [2024] NSWSC 902, Rees J at first instance set out relevant passages from Rodny v Weisbord including those extracted above and added:

10. [129]

    Rees J’s summary of the relevant legal principles in relation to informal wills (including in the above paragraphs) was not challenged on appeal: Kemp v Findlay (CA) at [47]. In relation to what her Honour said at [148] regarding the onus of proof, in Fast v Rockman [2013] VSC 18, Habersberger J stated:

11. [130]

    In the present case, the defendant has the burden of establishing that the third element in s 8 is satisfied on the civil standard of proof, that is, on the balance of probabilities: Evidence Act 1995 (NSW), s 140(1). Under s 140(2) of the Evidence Act in deciding whether it is so satisfied, the court must take into account the nature of the subject matter of the proceeding and the gravity of the matters alleged. The ‘Briginshaw principle’ is a reference to the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361-362 as to how the civil standard operates which involves two elements. The first is that when the law requires the proof of any fact the Court must feel an actual persuasion of its occurrence or existence before it can be found, and ‘it cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal’ (at 361). The second element is that ‘reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal’ (at 362).

12. [131]

    The first element is an explanation of the civil standard of proof and the second refers to the strength of the evidence necessary to establish a fact or facts on the balance of probabilities, which reflects what is now found in s 140(2) of the Evidence Act. It is generally accepted that the second element in Briginshaw applies to the determination of whether an informal will should be admitted under s 8 for the reasons given by Habersberger J in Fast v Rockman in the passage set out above.

13. [132]

    In relation to the cases referred to by Rees J in Kemp v Findlay at [149]-[150] on the relevance of the deceased’s previous will-making habits, Ward P (Leeming and Ball JJA agreeing) made an important observation in Kemp v Findlay (CA) at [120] regarding the relevance of the deceased’s knowledge of the legal requirements for a valid will, which is that the relevant question is whether the evidence indicates that the deceased thought that compliance with the formal requirements for a valid will was the only way a valid will could be created, because that would suggest that the deceased did not intend that the informal document take effect as his or her will. As to the relevance of evidence as to the deceased’s knowledge of the formal requirements for a valid will, Ward P said:

14. [133]

    In Campton v Hedges [2016] NSWSC 201 at [61] Hallen J made the following observations regarding some further matters relevant to the third requirement in s 8:

15. [134]

    In relation to paragraph (k) in the above summary, the need to have regard to the wider context is well established and is supported by ss 8(3) and (4). Hallen J referred in that paragraph to what was said by Palmer J (as his Honour then was) in Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992). The same judge when a member of the Court of Appeal in Hatsatouris (Priestley and Stein JJA agreeing) adopted what he had earlier said in Commins and set out the relevant passage at [58] which includes relevantly:

16. [135]

    Since the critical question is, what was the Deceased’s intention at the time she placed her signature on what is, after all, no more than a note as to the manner in which she wished her Will to be changed, it seems to me that what is required is an approach similar to that which is called for when the Court is called upon to determine whether an informal document was intended to constitute, or record, but a limited consensus or concluded agreement - in such cases it is not only legitimate, but almost inescapable, that one should have regard to the totality of events in order to determine what was the party’s intention (see, for example, Hussey v Horne-Payne (1879) LR 4 App Cas 311; Howard Smith and Co Ltd v Varawa (1907) 5 CLR 68; Masters v Cameron (1954) 91 CLR 353; Allen v Carbone (1975) 132 CLR 528; Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) NSWLR 540).

17. [136]

    In Estate of Masters, Kirby P and Mahoney JA both noted that the precursor of s 8 (s 18A of the Wills, Probate and Administration Act 1898 (NSW)) was remedial legislation which should be given a beneficial construction. Kirby P said at 452:

18. [137]

    Mahoney JA said at 462:

19. [138]

    However, notwithstanding that s 8 is beneficial legislation, it is still necessary that the court is satisfied on the evidence ‘that the document which is to be proved as the will was intended to be a will, rather than something which was brought into existence as a step towards the making of a will’: Mahlo v Hehir [2011] QSC 243 at [40].

Submissions of the parties

1. [139]

   The plaintiff submits that the defendant has the onus of establishing Colin intended the Note to have operative effect as his will. That finding can only be made if the court draws an inference to that effect.

2. [140]

   However, the evidence that the court has received from the defendant is unreliable and unsatisfactory in a number of ways:

   1. (1)

      the whole of the defendant’s affidavit evidence was prepared by Mr Dawson, a financially interested party and material witness. That evidence has been filtered through Mr Dawson’s assessment of what is and is not relevant evidence;

   2. (2)

      Mr Dawson and Mr Wheatley, two critical witnesses, discussed their respective recollections of important events between themselves;

   3. (3)

      a number of events and documents were omitted from the affidavit accounts presented by the defendant (or emerged in oral evidence under cross-examination), including Mr Wheatley’s account of his SMS and phone communications with the deceased after 5 August 2022, Mr Wheatley’s visits to Colin’s property after the deceased’s death, and the nature and extent of the other documents located in the deceased’s study (including the contents of his computer);

   4. (4)

      perhaps the most important piece of evidence, the iPhone itself, is presented to the Court totally devoid of its other contents. The evidence does not establish what exactly was on Colin’s phone at the date of his death or thereafter. Text messages and emails which would have been on Colin’s phone from the date of his death were not on the phone when it was forensically examined. The evidence of the court-appointed expert, Mr Sobbi, is that when he inspected the phone there was no function enabled whereby SMS text messages or emails were automatically deleted. Mr Chapple SC submitted that it must follow from the above that at least in relation to any messages or emails received after the date of death of Colin, that those messages and emails were deleted by someone who had custody of the phone. This leaves open the following questions: Did Colin email or SMS anyone about will making or his intentions? How else did the deceased use his iPhone and how often? The iPhone has at all material times been in the custody and control of the defendant or Mr Dawson since shortly after the deceased died and up until it was delivered to the court appointed expert. Whatever the explanation is for the lack of the phone’s contents (deletion or otherwise), the iPhone was in the defendant or his lawyer’s custody – its lack of other contents or an explanation for that case of affairs, is the fault of the defendant. The iPhone has not been treated in the way a critical piece of evidence in an upcoming court case should be treated and the plaintiff and his solicitors were misled (or at the very least, there was an entire lack of transparency) about where the phone was after the deceased’s death.

   5. (5)

      The failure to adduce evidence about what was or was not on the phone, or what documents were or were not retained, would ground an inference that that material, if adduced, would not have assisted the defendant (T136-137). It was within the defendant’s power and control to advance evidence as to what documents were on the mobile phone at the time that it was located on 19 August and what paper documents had been retained by the deceased. The failure to do that raises squarely the kind of inferences that Handley JA adverted to in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418:

3. [141]

   Further, the plaintiff submits that the Court should not be satisfied that the deceased possessed the requisite intention that the Note should, without more, operate immediately as his will for the following reasons:

   1. (1)

      Colin did not ‘publish’ the informal document or make it public. He did not email or print a copy, or even mention its existence. It remained located privately on his phone between 5 and 16 August, and Colin gave no directions to anyone as to how to find it.

   2. (2)

      Related to Colin’s failure to ‘publish’ the document was his failure to inform his purported executor (Mr Wheatley) or his solicitor (Mr Dawson), who he charged with the ‘handling’ of his will, that he made a will or where to find it. Both Mr Dawson and Mr Wheatley accepted that they did not have a conversation with Colin about a will located on his iPhone, or the location of his will more generally, despite communicating with him during the period 5 to 16 August (T16.12-21; T76.17-23). That failure is significant because, on 22 July 2022, Colin had a conversation with Mr Dawson in which he repeated on two occasions that he would send his will instructions through to Mr Dawson. The fact that he did not do so gives rise to a compelling inference that Colin did not consider the document on his mobile phone to be in a form ready to send to his solicitor, perhaps because it remained a working document (evidenced by the edits on 5 August 2022) and did not sufficiently reflect his settled testamentary intentions. The failure to provide a copy of the instructions to Mr Dawson becomes more significant when considered with the evidence that Colin was in email contact with Mr Dawson during this period. In addition to the conversations on 5 August mentioned above, there were conversations between Colin and Mr Wheatley on 9 August for 335 seconds, 10 August for 477 seconds, 11 August for 788 seconds, 12 August for 522 seconds, and 13 August for 212 seconds. That last call on 13 August was two days after Colin’s alleged conversation with Ms Jones occurred and Mr Chapple SC submitted that it would be curious for the deceased not to have told his executor and main beneficiary of his will at that point in time. Instead, the plaintiff submits that it suggests the Note was not final, but was a step along the way towards the making of a final will. Additionally, this evidence (or lack thereof) is significant because if Colin truly intended the document to have immediate operative effect, he was relying on the detective skills of his beneficiaries (or those people who thought they might be beneficiaries) to locate the document.

   3. (3)

      The only evidence that Colin told anyone about his will was a passing comment to his cleaner that he had ‘finalised his will’. That evidence is equivocal in the sense that it can equally be understood as Colin referring to the fact that he had finalised his testamentary intentions, following on from an earlier conversation he had with Ms Jones where he had not yet made his mind up as to what he wanted to do in relation to this will (T107.16-19). That is the more likely meaning to be attributed to the conversation given that it would be strange for Colin to tell his cleaner that he had made a new will (although he did not disclose the form or location, or its content) and not the two people who were most concerned with the administration of his estate.

   4. (4)

      That Colin’s testamentary intentions were unsettled is further illustrated by the lay evidence filed on behalf of the defendant in which Colin’s testamentary intentions, as expressed to various of those witnesses, differs in some ways from both account to account and to the informal document itself. Additionally, there was some degree of imprecision in how he purported to dispose of his assets in the Note, which suggested that he had not dealt with their totality.

   5. (5)

      Colin had long intended Mr Dawson to prepare his will. Colin had a conversation with a friend, Ross Hyde-Smith about the need to make a will. Mr Hyde-Smith advised Colin to ‘see his solicitor and get his affairs in order’. That Colin took this advice can be inferred from the evidence of Andrew Jones. He recalls Colin telling him that he intended to see Mr Dawson to ‘record his wishes regarding his estate’. He also had a conversation with Ron in which he stated that they both should see Mr Dawson to prepare their wills. Mr Dawson’s evidence is that Colin understood that Mr Dawson was always ready, willing and available to make a will whenever he needed it (T19.36-48). There is nothing in the conversation between Colin and Mr Dawson on 22 July 2022 that suggests that Colin had changed his mind and did not intend to make his will with Mr Dawson. Indeed, the nature of the conversation confirms that Colin did in fact wish to make his will with Mr Dawson and that he understood Mr Dawson’s professional assistance to be required in order to do so. It was also submitted that the ‘handling’ of the will to which Mr Dawson is referred in the Note could only mean the drafting of the will, because that is where there is the possibility for ‘fuck ups’, beyond that, the actual administration of the estate is a matter for the executor (T170). Further, the language of the Note, including the direction to Mr Dawson for ‘no fuck ups’ could be said to be written as if addressed to a long-time friend and solicitor. Typographical mistakes in the grammar, punctuation and inconsistent use of abbreviations in the Note also suggested a degree of informality.

   6. (6)

      Colin was an astute and careful businessman who lived by the mantra, at least in his legal affairs, of ‘no fuck ups’. That he valued legal advice, and acted upon it, is evident from the fact that Mr Dawson accompanied him on a trip to the United Kingdom to provide advice on a business proposal. Mr Dawson’s evidence is that he represented Colin in hundreds of matters over a period of 25 years (T17.4-8). It is incongruous that a man who was careful to insist that his solicitor take care not to make mistakes would seek to prepare a final and immediately binding document without the assistance of a solicitor, particularly in circumstances where: (i) he had obtained legal assistance in drafting three financial agreements in relation to previous de facto relationships (T18.10-23; T18.25-39); (ii) he had long referred to the need to see Mr Dawson to prepare his will; and (iii) the legal advice of Mr Dawson was readily available to him.

   7. (7)

      Finally, Colin’s death was not foreseen by him. The informal document was last edited on 5 August 2022. At that time, any immediate concerns about Colin’s health had passed. This is not a case where he prepared the document with a degree of urgency and was therefore unable to get to a solicitor, such as in cases of suicide.

4. [142]

   The defendant submits that the evidence should satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the deceased, by some acts or words, demonstrated that it was his intention, that the subject document should, without more on his part operate as his will for the following reasons:

   1. (1)

      First, it was entitled ‘Last Will of Colin L Peek’, ‘last’ suggesting finality and the use of his middle initial in his name suggested a degree of formality (T149.5). It was also dated ‘Friday 5 August 2022’ and his initials ‘CP’ appeared at the bottom of the document. In letters of instruction, people do not necessarily use their full name or date and sign the document in that manner (T149.10). There is nothing in the evidence to suggest that the deceased intended the document to, ‘be no more than a note of the instructions which the Deceased wished to have incorporated in a new Will which [he] would later execute in the conventional way’: The Estate of James Phillips (Supreme Court (NSW), Needham AJ, 9 September 1990); and cited in Commins. It contains no directions for further execution. There are no markers addressed to his friend and solicitor, Mr Dawson, to indicate that it is a note of instructions, draft or trial run (T144.30). This can be contrasted with Commins, where Powell J noted at p 6, ‘A copy of the informal document which states at the beginning, ‘will to be changed as’…’ was language of instruction, distinct from the abrupt directives contained in the present informal will (T144-145). He had no prior will-making habits and there was no indication he intended to do anything else before the will became operative, rather he used the words ‘that’s it’ suggesting present intention (T144.15).

   2. (2)

      Second, the Note contained appointments and directions consistent with a final testamentary document (at least in the eyes of a layperson), which included: appointing an executor (the defendant); the deceased’s own recognition of the date; the deceased’s initials at the foot of the document which the defendant submits, although not wet ink, constituted a digital signature (T142.35); seeing to the disposition of the deceased’s bounty and dealing with the entirety of his estate (‘This is what I want done with my property so it will be divided this way that’s it...’); seeking to appoint a solicitor to handle probate administration (‘PDawson to get 5% for handling CP will – no fuck ups’); the deceased referring to the document as his ‘will’ on three occasions within the document; forgiving debts (‘Andrew Jones CP loan wiped. Brad knows.’); providing for a distribution to the plaintiff (‘Ron 15%’) reflective of the conversation between the deceased and Judith Jones and seeking to ‘cut out completely’ anyone who contests the will.

   3. (3)

      Third, the affidavit of Judith Jones deposed to a conversation between her and the deceased where the deceased stated to her on 11 August 2022, being approximately a week after the Note’s creation, ‘I have finalised my will and I decided to leave a small percentage to my brother Ron…’. The term ‘finalised’ indicative of his understanding that it was complete. In terms of why he did not inform Mr Dawson or Mr Wheatley of the will, one explanation was that due to the poor state of his health, he had his mind on other things and did not want to confront the difficulty of his mortality (T169). Although Colin did not inform Mr Dawson or Mr Wheatley of the will, he did ask Mr Wheatley to agree to be the executor of his will, completed the Note and then told his housekeeper that he had finalised his will (T149).

   4. (4)

      Fourth, in terms of why he did not use Mr Dawson’s services to prepare the will, the defendant submits that the deceased largely took his own counsel on many matters, and it was ‘his way or the highway’. He only used Mr Dawson’s services largely for conveyancing matters, with the only variation to that being in relation to a potential binding financial agreement with his ex-partner (T158). In terms of what there was left for Mr Dawson to ‘handle’ in relation to the will, if the Note was the will itself, the defendant submits that the handling refers to obtaining probate, letters of administration and administering the deceased’s estate (T166), it was not an instruction to formalise the will.

   5. (5)

      Finally, there is no dispute about the authorship or authenticity of the Note, or that it was not changed after 5 August 2022. There is also no assertion that the deceased did not possess testamentary capacity. It is apparent on the face of the document, that the deceased: knew he was creating a will (‘Last Will of Colin L Peek’), knew his bounty, knew those who had a claim on his bounty (i.e., he dealt with an outstanding loan and directed that ‘No one else gets a thing’), and there is no assertion by way of medical evidence or affidavit material that he suffered from any delusion of the mind.

Consideration

1. [143]

   In determining whether the Note was intended by Colin without more on his part to have present operation as his will, the starting point is the document itself, but the Court then needs to have regard to the wider context.

2. [144]

   The Note itself has elements pointing each way.

3. [145]

   I will deal first with the elements relied on in favour of the requisite intention which are:

   1. (1)

      The heading, ‘Last will of Colin L Peek’ together with the date that he made the last change to it (5 August).

   2. (2)

      It states ‘Brad Wheatley to be executor of my affairs’.

   3. (3)

      His abbreviated initials (CP) appear at the end which is how he refers to himself in the document as his signature.

   4. (4)

      It appears to intend to deal with all of his property by the statements: ‘this is what I want done with my property’; ‘it will be divided this way that’s it’; ‘anyone contests my will they get cut out completely’ and ‘no one else gets a thing’.

4. [146]

   I agree that item (1) suggests formality and finality, looked at in isolation, which favours the existence of the requisite intention. While item (2) shows that Colin was addressing an important element for a will, which is something he had confirmed with Mr Wheatley previously, it is neutral on the existence of the requisite intention.

5. [147]

   As to item (3), a signature on a will for the purposes of s 6 of the Succession Act can be any mark made with the intention of executing the will as the Succession Act does not contain any requirements as to the form or style which a signature must take. The authorities indicate that initials can be sufficient if intended to represent the deceased’s name: Re Blewitt (1880) 5 PD 116; Wood v Smith [1993] Ch 90 at 111. The significance of a signature in a will is that it would, in most cases, carry the implication that the deceased intended to give testamentary effect to the document: Wood v Smith at 111; Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 at [104]. I accept that this is a factor in favour of the existence of the requisite intention, but it is not of itself conclusive and it is equally consistent with the Note being merely a statement of Colin’s testamentary intentions. He has placed his initials separately from the date (a signature beside a date can be seen as more indicative of finality than initials separately from a date), and there is no other evidence that he signed documents by using his initials (CP) rather than his full name.

6. [148]

   As to item (4), I address below whether the Note deals with all of Colin’s property. The other words identified in (4) indicate that Colin regarded the Note as expressing his testamentary intentions but are equivocal on whether he intended the Note to have present operation as his will: cf Bell v Crewes [2011] NSWSC 1159 at [18]-[19].

7. [149]

   There are aspects of the Note which are relied on as going against the presence of the requisite intention:

   1. (1)

      There are some typographical errors in the document, and other elements such as punctuation errors suggesting informality.

   2. (2)

      It states: ‘P Dawson to get 5% for handling of CP will-no fuck ups”.

   3. (3)

      The Note does not in fact deal comprehensively with all the deceased’s property.

8. [150]

   As to item (1), in my view to the extent there are any typographical errors in the document this has no real bearing on the question, one way or the other.

9. [151]

   As to item (2), this is consistent with the way Colin gave instructions to Mr Dawson to undertake legal work for him. Further, that statement suggests or at least is consistent with the gift to Mr Dawson being in recognition of the work he would do in drafting the will (this being what ‘handling of CP will’ refers to), rather than for administration of the estate because that is the executor’s role, and Colin has appointed Mr Wheatley as executor. If the Note was intended to be, without more, Colin’s will, there was nothing for Mr Dawson to ‘handle’.

10. [152]

    As to item (3), while the Note opens by saying ‘this is what I want done with my property so it will be divided this way…’, there is a lack of comprehensiveness because after stating certain percentages, the Note then says, ‘Brad Wheatley gets the remaining balance of the accounts’ rather than ‘the remaining balance of my property/estate’. There are several significant assets which are not mentioned, being his interests in the companies and trust referred to at [48] above. He cannot have failed to recall these assets as he had been involved in a joint venture with Allam Homes since 2014 with regular meetings with representatives of Allam Homes in that period. In other words, there is a lacuna which suggests, when read with (2) above, that it is intended as a draft document that would ultimately be forwarded to Mr Dawson for the purpose of him preparing the will, for which he would receive 5% (for ‘handling of CP will-no fuck ups’).

11. [153]

    Ultimately, in my view the Note has elements pointing both for and against the existence of the requisite intention and this makes it important to have regard to the wider context in which the Note was created.

12. [154]

    In relation to the wider context, there are two matters which are identified by the defendant as favouring the conclusion that Colin had the requisite intention when creating the Note: first, the Note is prepared shortly after the deceased’s near-death experience which occurred in the early hours of 4 August, leading to a conversation with Mr Wheatley in the early hours of 4 August in which Mr Wheatley told him to make a will; second, the deceased said to Ms Jones on 11 August (which is after the Note was created) ‘I have finalised my will and I decided to leave a small percentage to my brother Ron…’.

13. [155]

    I do not regard the first of these matters as of particular assistance, one way or the other. This is because the deceased met with Mr Dawson on 21 July and had a discussion about making a will in which he said ‘I’ll write it down and send it through in the next week or so’ and then repeats this at the end of the meeting ‘I told you, I’ll send it through in the next week or so.’ The inference from this conversation is that the Note was a note of instructions to be sent to Mr Dawson. If Colin had changed his mind and decided that the Note would operate, without more, as his will it would be expected that Colin would have told Mr Dawson of this by phone, text or email, which he did not do.

14. [156]

    This is particularly significant because by not telling Mr Dawson or Mr Wheatley where the Note was to be found, there was a risk that they would never find it. The failure to inform Mr Dawson or Mr Wheatley of the existence of the Note is consistent with it being a draft of his testamentary intentions which he proposed to send to Mr Dawson but for one reason or another (possibly because he had not finalised his views or was too ill to summon the energy to do so) he failed to do before his unexpected death: cf Etherton v Mitchelmore [2024] NSWSC 170 at [16].

15. [157]

    Also relevant in this regard is Colin’s knowledge of will-making requirements. There is no evidence to suggest that Colin thought that compliance with the formal requirements for a will was the only way a valid will could be made (see Kemp v Findlay (CA) at [120]). However, there is evidence that Colin intended to see his solicitor, Mr Dawson, for the purpose of making his will (see the evidence of Ronald and Andrew Jones referred to above and the conversation he had with Mr Dawson on 21 July).

16. [158]

    The second matter relied on by the defendant from the wider context is the statement Colin made on 11 August that ‘I have finalised my will’. In my view this is ambiguous. The ordinary and natural meaning of the word ‘finalise’ is ‘to put into final form, conclude, settle’ (Macquarie Dictionary, 3rd ed, 1997) and ‘complete or agree on a finished or definitive version of (something)’ (Oxford English Dictionary, online ed, accessed May 2025). For Colin to say that he had ‘put his will into final form’ or ‘agreed on a definitive version of his will’ is consistent (given what he said to Mr Dawson at the meeting on 21 July) with the Note being what he had decided upon as the will to be prepared by Mr Dawson for his execution and is not sufficiently definite that the Note was intended to constitute, without more, his will: cf Re Application of Tristram [2012] NSWSC 657 at [12].

17. [159]

    Had Colin really meant that he had made his will, it would be expected that he would have told Mr Dawson and Mr Wheatley, as well as Ms Jones, given his previous discussions with both about the will (including that he said to Mr Dawson at the meeting on 21 July that he would send through his instructions on the will ‘in the next week or so’) and that each is to benefit under it. Significantly, he does not, despite having every opportunity to do so by telephone, email or text after 5 August. In particular:

    1. (1)

       Colin had a conversation with Mr Wheatley on 5 August at 3pm, and also sent him an SMS text on that day, both occurring after he had the conversation with the deceased at 3:30am on 4 August about the need to make a will;

    2. (2)

       Colin met with Mr Wheatley on 13 August and it is surprising that he did not tell him on that day that he had made his will and where it would be found;

    3. (3)

       Colin had a practise of using lawyers to prepare agreements, including financial agreements with his partners, as well as conveyancing transactions, and I infer from this that he understood the need for important legal documents to be drafted by lawyers. As noted above, he had said several times that he would approach Mr Dawson when he was ready to make his will. Colin called Mr Dawson on 5 August after the creation of the Note and they did speak briefly but, on Mr Dawson’s account, Colin did not tell him about the Note or where it could be found.

18. [160]

    The lack of an explanation for why Colin did not tell Mr Dawson or Mr Wheatley about the Note makes it significant that there is no evidence regarding the text message sent by Colin to Mr Wheatley on 5 August or the calls made by Colin to Mr Dawson’s office on that day. In accordance with the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 308, 312 and 320–1, an adverse inference can be drawn against a party who fails to call a witness or to ask questions of a witness called by that party (Ferrcom at 418), which is that the untendered evidence would not have assisted that party. It entitles the court more readily to draw any inference fairly to be drawn from the other evidence, but does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it.

19. [161]

    The rule in Jones v Dunkel is an aspect of the wider rule in Blatch v Archer (1774) 1 Cowp 63 at 65, that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’. The court has regard to this wider rule in determining whether a party has discharged its onus of proof. As Hodgson JA (Beazley JA agreeing) explained in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168:

20. [162]

    In accordance with the Blatch v Archer principle, the failure by a party to call or give evidence that could cast light on a matter in dispute can be taken into account in determining whether that party has discharged its onus, in circumstances where such evidence as has been called has not itself clearly discharged the onus: Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 at [80]-[82]; Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [440]; Shalhoub v Buchanan [2004] NSWSC 99 at [71].

21. [163]

    Mr Wheatley has the onus of proof on the question whether Colin had the requisite intention when the Note was created or up to the time of his death. In the circumstances of the present case, an important question to be considered in determining whether the onus has been discharged is whether there were any communications by Colin with either Mr Wheatley or Mr Dawson regarding the contents of the Note in the period from 5 August to his death. Those circumstances include first, the matters referred to at [158] above and second, the ambiguities in the Note itself.

22. [164]

    Highly relevant to that question are two matters raised by the evidence: first, that Colin sent an SMS text to Mr Wheatley on 5 August, but Mr Wheatley failed to give evidence as to what was in that SMS text either in chief or in re-examination; second, Colin made several telephone calls to Mr Dawson’s office on 5 August including one at 3:37pm lasting for 4 minutes but the person in Mr Dawson’s office who received the call did not give evidence about it. There is no evidence to suggest that there were any outstanding issues to discuss regarding Colin’s insurance claim which had been the genesis for the meeting on 21 July.

23. [165]

    There are three further matters which raise a concern as to whether the court has the full picture as to the contents of Colin’s iPhone. First, while Colin’s iPhone was in the possession of either Mr Dawson or Mr Wheatley, from 19 August, text messages and emails have been deleted from it which raises a concern about the integrity of the main piece of evidence. Second, the way the evidence came out at hearing (the conversation between Colin and Mr Wheatley in the early hours of 4 August; the visits to Colin’s house on 16, 17 and 18 August; Mr Wheatley taking possession of the phone and deleting SMS texts) suggests the court cannot be confident that it has all the relevant communications by the deceased with Mr Dawson and Mr Wheatley regarding the purpose of the Note.

24. [166]

    Further, there is a difficulty in the court accepting the reliability of the evidence of Mr Dawson when he acted as a solicitor in the proceedings and prepared all the evidence for the defendant despite his conflict of interest and duty to the court.

25. [167]

    While I accept (and it is not in dispute) that the Note records Colin’s testamentary intentions, I am not satisfied on the balance of probabilities that Colin intended the Note without more on his part to have present operation as his will, in particular because (a) the Note has elements which point against that conclusion, (b) there is evidence in the wider context in which the Note was created that casts doubt on whether Colin had that intention and (c) the failure to call two important pieces of evidence regarding communications (or attempted communications) by Colin with Mr Wheatley and Mr Dawson in the period from 5 August to 16 August.

Conclusion

1. [168]

   For the above reasons, I am not satisfied that Colin intended that the Note, without more on his part, to have present operation as his will. Accordingly, the plaintiff is entitled to the relief sought in the statement of claim and the cross-claim should be dismissed. The ordinary rule that costs follow the event should apply.

2. [169]

   The orders of the court will be as follows:

   1. (1)

      Order that Letters of Administration of the intestate estate of the late Colin Laurence Peek be granted to the plaintiff.

   2. (2)

      Order that the proceedings be referred to the Senior Deputy Registrar in Probate to complete the grant.

   3. (3)

      Order that the cross-claim be dismissed.

   4. (4)

      Order that the defendant pay the plaintiff’s costs of the proceedings on the ordinary basis as agreed or assessed.

   5. (5)

      Grant leave to each party to approach the Associate of Richmond J within 14 days by email if either party wishes to seek a different costs order to that set out in Order 4.