RJT v JRS

By a statement of claim filed on 23 May 2022 the plaintiff (who presents himself as an intellectually disabled person) claims against the defendant (his first cousin and a person who presents herself as suffering from severe physical and emotional disabilities that have rendered her vulnerable to suicidal thoughts), a vast range of remedies which, in the event, has crystallised in a claim for a money judgment, plus pre-judgment interest under the Civil Procedure Act 2005 NSW, section 100.

At a high level of abstraction, in his statement of claim the plaintiff [RT] claims that the defendant [JS] misappropriated the sum of $161,700 of his money, drawn down on his superannuation entitlements by the defendant, on or about 3-4 and 30 March 2022.

Under cover of a letter dated 4 March 2022, addressed to the plaintiff his superannuation provider (Colonial First State, “CFS”) advised that the sum of $163,216.69 had been paid into his bank account on closure of his superannuation account. The precise date of the payment is unclear. On the CFS documentation it may have been paid on 3 March 2022 (although that may simply be the formal date of closure of the plaintiff’s superannuation account) or 4 March 2022 (a date attributed to approval of the payout).

In written submissions the plaintiff identifies 7 March 2022 as the date upon which a similar amount ($160,717.50) was paid into, and a similar amount ($160,767.60) was paid out of, an account in the plaintiff’s name (with an account number ending in “0002”) which is different from the account identified in the statement of claim (with an account number ending “2901”).

In the statement of claim and the plaintiff’s affidavit sworn on 27 May 2022 the plaintiff’s case is that on or about 4 March 2022 the defendant transferred the sum of $160,000 out of his bank account into a bank account in her name. The precise amounts and timing are not readily ascertainable on available records (it may have been transferred out of the plaintiff’s bank account in instalments between 7-21 March 2022) but the parties have proceeded on the conventional basis that, although CFS paid out $163,216.69, the defendant “received” (or “took”, depending on the parties’ different understanding of the facts) the sum of $160,000. That sum is, in essence, what is said, or denied, to have been the subject of a gift.

On 30 March 2022 the defendant transferred a separate sum of $1,700 from the defendant’s bank account to her own. She does not dispute that transaction but it stands in a different category to the principal sum of $160,000.

The plaintiff deposed that that sum related to the payment of household expenses referable to the co-habitation of the parties which, in a practical sense, came to an end on or about 28 March 2022.

It was common ground that the defendant had the plaintiff’s authority to draw on the plaintiff’s bank account for such expenses and, at the time she transferred the sum of $1,700, she had no notice of any withdrawal of her authority. It is not clear whether the $1,700 sum was funded by the plaintiff’s superannuation payout or other funds standing to the credit of his bank account.

As between itself and the plaintiff, however, the plaintiff’s bank (NAB) acknowledged that the transfer on 30 March 2022 was made after the plaintiff had on 28 March 2022 cancelled the defendant’s authority to operate on the plaintiff’s account. Accordingly, the bank refunded the sum of $1,700 to the plaintiff in response to a complaint made by him to the Bank.

In all the circumstances, I am not satisfied that, as between the plaintiff and the defendant, the sum of $1,700 was either an unauthorised transfer or the subject of a gift. In my assessment, it was, as between the parties, a transfer made in accordance with an established practice for funding household expenses, albeit on the cusp of coming to an abrupt end.

Where in this judgment I refer to “the disputed funds” I refer to the conventional sum of $160,000.

On 10 October 2022 the defendant filed a verified Defence in the form of a narrative statement which, in essence, implicitly admitted that she had taken control of the disputed funds, claiming that she had taken control of them with the knowledge and approval of the plaintiff as a gift by him to her.

The plaintiff is represented in these proceedings by pro bono lawyers. The defendant is self-represented.

The central question in these proceedings is whether the transfer of $160,000 of the plaintiff’s superannuation entitlement from the plaintiff to the defendant constituted a gift by the plaintiff to the defendant and if so:

Omitting references to authority footnoted by his Honour, I adopt paragraphs [115]-[118] and [121], [122]-[124] of the judgment of Meek J in Arambatzis v Cristian [2025] NSWSC 1606 about the legal nature of a gift:

I acknowledge the extensive treatment of the law governing gifts in the judgment of Ward P in Maxwell v Maxwell [2022] NSWSC 1028 at [179]-[212].

Reference should also be made to the following observations of Brennan J in Muschinski v Dodds (1985) 160 CLR 583 at 604-605:

The following propositions are uncontroversial:

A controversy in the proceedings is whether (on 6-8 April 2022 or thereabouts) the defendant, having converted most of the disputed funds (or at least $147,000) into cash between 1-8 April 2022, destroyed that cash, in a mental crisis, leaving her impecunious.

Other controversies include whether the defendant’s relationship with the plaintiff was that of a fiduciary, whether the defendant exercised undue influence over the plaintiff or took advantage of his disability, and whether (as the plaintiff contends and the defendant denies) the defendant concealed her conduct from the plaintiff.

Expressed by reference to the essential elements of a valid inter vivos gift, the dispute between the parties involves the following questions:

The defendant’s evidence at trial expressly confirmed her Defence, with a twist in the nature of a “confession and avoidance” which focuses attention on her mental health. She says that, having taken possession of the disputed funds as a gift, she converted most of the funds (at least $147,000) into cash (in the form of $100 notes) and, in the fog of a mental breakdown associated with suicidal thoughts closely associated with an altercation between herself and the plaintiff and an aggressive accusation by his then solicitor that she had (contrary to her belief) dishonestly and greedily misappropriated the funds, she destroyed the cash, as a demonstration that money meant nothing to her. She says she destroyed most of the currency by cutting it up and disposing of it in the garbage.

Implausible as her evidence of destruction of a large sum of cash in a frenzy of mental illness may sound at first blush, extensive deployment of the Court’s subpoena processes on behalf of the plaintiff, and searching cross examination of the defendant by counsel for the plaintiff, have discovered no hidden fund of money or any substantial change in the defendant’s modest lifestyle. All traces of the disputed funds have vanished, a fact consistent with destruction of the cash ostensibly withdrawn from bank accounts into which the funds were traced.

No evidence has been adduced from any bank about the terms of the parties’ bank accounts; regulatory requirements or trade customs about withdrawal of large amounts of cash; or the capacity of a bank (or the Reserve Bank of Australia or Treasury) to trace currency notes by reference to their identification numbers. This, despite my invitation to the plaintiff’s legal representatives to inquire of institutional authorities whether evidence could be adduced to contradict the defendant’s assertion that she had destroyed a large number of $100 notes.

The plaintiff asserts that the defendant appropriated the disputed funds without his authority and denies that he gifted them to the defendant. In the alternative, he contends that, if the defendant received the funds as a gift, the gift was conditional upon the defendant holding the funds (implicitly or constructively on trust) for his maintenance and advancement in life.

The defendant’s version of events going to the question of whether (or not) the plaintiff gifted the disputed funds to the defendant is, in substance, supported by the only witness other than the parties called to give evidence at trial. A family member who may have been able to cast light on events (the plaintiff’s sister, “A”) was not called to give evidence, although (after he and the defendant parted company), the plaintiff went to live with her in Queensland.

The defendant’s witness “CEA” (an American woman, another person living on a disability pension, in her case in the US) is a friend of the defendant (but well known to the plaintiff as well as the defendant) who gave evidence (upon which she was cross-examined) to the effect that, during her regular AVL conversations with the defendant: (a) the plaintiff often interrupted the conversation with self-aggrandising behaviour, including insistent comments to the effect that the defendant should accept the disputed funds (the proceeds of his superannuation benefits) for her own use; and (b) the defendant demonstrated an initial reluctance to accept the gift.

CEA’s evidence is said on behalf of the plaintiff to be unreliable as to the dates and details of her observations of statements and conduct attributed to him (calling her evidence into question generally); but uncertainty as to dates or details of informal, social engagements does not detract from the substance of her evidence. I accept that she was a witness of truth. Although sympathetic to the defendant as a friend she was not antagonistic towards the plaintiff. She was simply reporting her best recollection of what she had seen and heard.

Viewing the whole of the evidence with the utmost caution (and mindful of section 140 of the Evidence Act 1995 NSW, the statutory embodiment of Briginshaw v Briginshaw (1938) 60 CLR 336 as to the standard of proof required in civil proceedings), I find that:

In all this (and despite conflicting evidence about which of the parties terminated their domestic arrangement) the fact that the defendant maintained an intention to remain in a relationship with the plaintiff (despite statements to the contrary) is evidenced by the fact that (to the puzzlement of the plaintiff’s then solicitors) the defendant, no later than about 13 April 2022, paid $500 to the solicitors with the intention that it be made available for the plaintiff’s living expenses. The solicitors recorded the payment as a partial refund to the plaintiff of an (allegedly) misappropriated asset, although that was not the defendant’s intention or characterisation of it.

As powerful as were the emotions of both parties following their altercation of 28 March 2022, I do not exclude the possibility that, but for the intervention of third parties (the Police in issuing a Provisional Domestic Violence Order and the plaintiff’s then solicitors serving on the defendant a provocative letter of demand and follow up emails), they might have resolved their differences and continued in a domestic relationship which, despite friction from time to time, had endured for about nine years. Their relationship was deeply familial, informed by a shared perception of necessity for co-habitation.

Although the plaintiff in his statement of claim seeks restitution to him of $161,700 two adjustments to that sum need to be made. The first is that, as I have held, the sum of $1,700 needs to be allowed against the sum of $161,700 because I am not satisfied that, as between the plaintiff and the defendant, it was an unauthorised transfer of funds and, in any event, as between the plaintiff and his bank, $1,700 was on 27 April 2022 returned to him by the bank in response to a complaint (of theft) submitted by him to the Bank on 6 April 2022.

Secondly, the sum of $160,000 needs to be reduced by a further allowance of the $500 paid by the defendant to the plaintiff’s then solicitors on or about 13 April 2025, she says, with the intention that it be available for the plaintiff’s living expenses, but which the solicitors recorded as a payment of a partial refund to the plaintiff of misappropriated funds.

Those adjustments, if made, reduce the plaintiff’s claim to $159,500.

Whether there is any significance in the fact that the plaintiff submitted a complaint to his bank on 6 April 2022 (a date of significance in the defendant’s narrative) was not explored in the evidence.

There are a number of curious features of these proceedings which, in my assessment, reflect the disabilities from which each party at all material times suffered.

Although the plaintiff would have the Court find that he was overborne by the defendant in the whole process of drawing down his superannuation entitlements, that was plainly not the case because he was personally and actively involved in the process independently of the defendant. Small examples of that are steps taken by him to obtain medical certificates and photo identification in support of an application to withdraw his superannuation entitlements.

That he was capable of transacting business on his own account without the assistance of the defendant is also illustrated by his evidence that immediately after his altercation with the defendant on 28 March 2022 he attended upon the bank (NAB) to check the balance of funds in his account and to countermand the defendant’s authority to access the account.

The fact that (on a date not specified in the evidence) the plaintiff executed a “non-lapsing death benefit nomination in favour of the defendant as to 100% of his superannuation entitlements in the event of his death does not establish that, when his entitlements were drawn down, he intended to give them immediately to the defendant. But, given that he involved her personally in the process of withdrawing his entitlements, it might provide some explanation for why she accepted as unexceptional his gift (as she understood it) of the disputed funds, particularly as she had long managed, and expected to continue management of, the joint household finances.

The plaintiff used words of gift in speaking to the defendant about his superannuation entitlements but he did not stipulate, or bring home, to the defendant his intention (as may have been supposed by him) that the disputed fund would only pass to her “when I die” but would be available in the meantime for payment of her anticipated medical (and other personal) expenses; the cost of her mother’s funeral and their joint living expenses.

If he intended to give the fund to the defendant only upon his death, and to preserve it in the meantime, the rationality and prudence of taking the steps he personally took to cash in his superannuation entitlements is at least doubtful, particularly in the absence of any evidence of a plan for management of the disputed fund. If (as he says) he did not intend to withdraw his super at the time he signed a withdrawal form, but to defer any withdrawal for an indefinite time, it is odd that he signed a withdrawal form (he says, in blank) and supported it with a contemporary photograph for identification purposes.

At the very least, he armed the defendant with the means to access his superannuation entitlements in circumstances in which he had established a continuous pattern of regularly disclaiming any personal interest in the proceeds of his superannuation and speaking of a gift of his superannuation entitlements to the defendant

Why the plaintiff needed, or thought it prudent, to withdraw all his “super” without a clear plan of management is unclear, and why the defendant thought it necessary to transfer all the disputed funds to a general bank account (instead of investing the bulk of it in an interest-bearing deposit or the like) is equally open to debate. The plaintiff’s explanation for his conduct is that he was preparing for the possibility that he might need funds at some indeterminate future time. The defendant’s explanation for her conduct is that she sought to keep the disputed funds in an account separate from the plaintiff’s “every day” account and that she understood that the funds had been gifted to her for her general use, including funding her health care involving an operation.

Once the requisite documents were completed for the superannuation funds to be withdrawn the funds became subject to the vulnerabilities of both the plaintiff and the defendant. Although the plaintiff suggests that the defendant’s pattern of transferring the disputed funds between various bank accounts should be seen as corroborative of an intention to hide her tracks in dealing with stolen money, that case theory does not sit well with her frank and immediate admission to the plaintiff that she had withdrawn his superannuation entitlements and taken control of the funds. Until the trail of account transfers abruptly stopped at about the time the defendant says she withdrew cash in bulk (between 1-8 April 2022, with two withdrawals of $10,000 followed by a single withdrawal of $127,000 on 8 April 2022 from her ANZ account) and destroyed most of it (between 6-8 April 2022 or thereabouts), the funds were ostensibly traceable through mainstream banks in accounts in the defendant’s name.

Her explanation that she changed banks (from the National Australia Bank to the ANZ Bank ) was that an ANZ Branch was more conveniently available to her place of residence, allowing for her physical disabilities in attending on a bank. That evidence was not refuted. In my assessment, the defendant’s several transfers of funds between accounts (at about the same time as she says she destroyed banknotes) before the trail of money recorded in bank statements came to an abrupt halt (on 8 April 2022 or thereabouts) is consistent with her past practice of maintaining several bank accounts (for sums large and small) and effecting multiple transactions, and her disabilities.

Also consistent with the defendant having a fragile mental health condition is her engagement with the police in relation to the physical altercation between the plaintiff and the defendant (on 28 March 2022) which contributed to the mental crisis in which she destroyed the disputed funds. The police who attended the scene (and interviewed the defendant on both 28 and 29 March 2022) issued a Provisional AVO (apprehended violence order) against the plaintiff (not the defendant) on 29 March 2022 which culminated in dismissal of a criminal charge against him following a trial (conducted on two days, 19 December 2022 and 7 August 2023) in which the defendant was a manifestly reluctant witness for the prosecution and the police prosecutor, on the second day, facilitated a dismissal of the proceedings against the plaintiff (both the criminal charge and the AVO) by a tender of the plaintiff’s witness statement in the prosecution case.

The plaintiff and the defendant are both convinced of the righteousness of their cause. Neither of them is consciously dishonest. Each views facts through a highly subjective prism coloured by: (a) the determination of a long-standing domestic relationship, living at close quarters in a household in which resources were commonly shared and the parties generally accommodated each other, coping with their disabilities; and (b) the loss of a substantial fund of money through (as I find) misadventure.

In evidentiary terms, the parameters of the questions in dispute between the parties are defined by contemporaneous documents (in the form of business records of third parties and correspondence) but much depends on an assessment of the evidence of the parties themselves, supplemented by the evidence of CEA.

The plaintiff has a strong sense of having been wronged. The defendant has a strong sense of having been falsely accused of wrongdoing.

The parameters of the plaintiff’s case were formally established by his verification of his statement of claim and the first two of his three affidavits, both prepared to address interlocutory applications.

The first was sworn on 27 May 2022. The second was sworn on 1 February 2023. The third affidavit (sworn on 15 June 2023) is more expansive.

Insofar as the plaintiff’s affidavits set out conversations he allegedly had with the defendant they are not supported by contemporaneous records, except inferentially. They are not themselves the subject of contemporaneous documentation.

The thrust of each of the plaintiff’s affidavits is neatly summarised in paragraphs 5-6 of the third affidavit, to the following effect:

The plaintiff’s evidence was initially presented in an absolute, dogmatic form, (alleging a complete absence of knowledge, approval or authority) but it slipped between affidavits and in cross examination.

In his first affidavit he emphatically asserted that the defendant “at no time” had asked for, or sought his authorisation and/or consent to lodge a withdrawal form relating to his superannuation, or informed him that a withdrawal form had been lodged with and/or received by the superannuation company. He also emphatically stated that “at no time” did the defendant request, seek his permission and/or authorisation and/or consent to access his Bank Account or inform, or notify him that she planned to, or had accessed his Bank Account and transferred the sums of $160,000 and $1700 out of his Bank Account to a bank account in her own name.

In his third affidavit he acknowledged a foundational conversation with the defendant about “pooling” their funds together (paragraph 16); he acknowledged that, albeit perhaps reluctantly, he acquiesced in what he says was an arrangement that “all of [his] personal property … belonged to both of us” (paragraph 30(g)); he attributed to the defendant a suggestion, with which he agreed, that he “prepare the necessary forms” with his super fund “in the event that [he is] unable to manage [his] financial affairs” (paragraph 40); and he alleged a conversation with the defendant in or about February 2022, apparently initiated by him, in which he expressly said to her words to the effect (set out in paragraph 44): “You have the authority to withdraw my Super. If I have another bad heart attack, please withdraw it to help pay for my expenses. But please wait until I’m 60 before you do, because that way the money withdrawn will be taxed at a lower rate.” To that statement the defendant is said to have responded “I’ll take care of you [R]. Don’t worry”.

The plaintiff’s dogmatic denial of any grant of authority to the defendant fell away in her cross examination of him, as illustrated by the following extracts from the transcript:

At pages 86-87 of the transcript (16 October 2024) there is a more extended series of questions put by the defendant to the plaintiff in cross examination in which he both suggested that the defendant was not authorised to speak to CFS without him being present and that he had acquiesced in a proposal of CFS that she have “permanent authority” to act on his behalf in dealings with the company (which she disputed). In any event, it is clear that the plaintiff and the defendant worked together, voluntarily, to obtain CFS forms and that the plaintiff provided CFS with the defendant’s contact details.

In the course of his evidence, the plaintiff endeavoured, in my view implausibly, to explain away any authorisation he gave to the defendant as something done at her direction.

In my assessment, the plaintiff’s denials of a grant of authority to deal with CFS and to withdraw his superannuation entitlements are unreliable, as are his denials of offers to gift his superannuation to the defendant. I do not accept as grounded in fact his dogmatic denials or his belated suggestion that he granted the defendant authority to draw down his super only if he was incapacitated or attained the age of 60 years. Apart from his reference in the extracted conversation about tax considerations, there is no evidence that the plaintiff sought or obtained taxation advice or gave it any consideration.

The plaintiff’s evidence shifted from the first to the last of his affidavits and in cross examination in a way that the defendant’s evidence did not.

She adhered to her raw, unfiltered explanation of events and her cross examination of the plaintiff was consistent with her case. Attacks on her credit were largely directed towards criticism of her response to the freezing orders made against her (largely explained by her fear of prosecution for destruction of currency), her opening of multiple bank accounts, an examination of bank statements and incredulity attaching to her explanation that she had destroyed a large amount of cash in a mental health breakdown.

The parameters of the defendant’s case were formally established by her Defence (filed on 10 October 2022), in the broader scheme of things informed by affidavits sworn by her in purported compliance with directions of the Court that she provide discovery of her assets and the whereabouts of the disputed funds.

On 23 February 2023 the defendant swore an affidavit disclosing assets of very modest value but including the following statement:

On 18 July 2024 the defendant swore an affidavit, the substance of which is here extracted:

On the whole, insofar it as there is a conflict between the plaintiff and the defendant as regards conversations they may have had, I regard the evidence of the defendant as likely to be the more reliable.

I note, in passing, that the plaintiff did not squarely respond to the evidence of CEA which corroborates that of the defendant.

By an affidavit sworn on 12 April 2024 (not, in terms, answered by any evidence given by the plaintiff) CEA corroborated the evidence of the defendant in a number of respects. In doing so, she described herself as the defendant’s “best friend of approximately eight years” and said that she knew the plaintiff “very well” as she had had many conversations with him over the years.

All her conversations with both parties were via a video call on “Skype”. She has not met either of them “in person” or visited Australia.

Her affidavit was directed principally to statements attributed to the plaintiff urging the defendant to accept a gift of his super and the defendant’s initial reluctance to accept the gift.

The core passages of CEA’s affidavit evidence (confirmed in her oral evidence) are found in paragraphs 3-5 and 9-11, here reproduced with editorial adaptation:

CEA was not directly challenged about her attribution to the plaintiff of a direction to the defendant to “take the entire amount” of his superannuation funds into her bank account but that evidence was, in substance, confirmed by the witness in re-examination.

When cross-examined about dates CEA described her reference to “March” 2022 as a “rough estimate” and the event she described probably happened in about the last week of February or the beginning of March, but she was not dogmatic about timing.

In questions I directed to CEA she confirmed that, in or about March 2022, she had a general idea of the value of the plaintiff’s superannuation entitlements and knew that he had a pension as well, but she did not know that his superannuation entitlements were his only substantial asset. The following exchange occurred (at transcript pages 105-106 on 16 October 2024):

The pleadings upon which these proceedings went to a final hearing comprised the plaintiff’s statement of claim filed on 23 May 2022 and the defendant’s Defence filed on 10 October 2022. In summary terms, the statement of claim alleges that the defendant stole the disputed funds and, by her Defence, the defendant denies having stolen the funds and alleges that they were a gift to her by the plaintiff. No reply was filed by the plaintiff to the defendant’s Defence.

The plaintiff’s statement of claim (filed on 23 May 2022) is predicated upon express assumptions that:

With that background, paragraphs [11]-[35] of the statement of claim are in the following terms:

The primary focus of the statement of claim upon an inoperative Power of Attorney instrument undermines the plaintiff’s pleaded case, as does the primary, dogmatic assertion that the plaintiff had exclusive ownership of the funds in the National Australia Bank account in his name despite the fact that the defendant was an authorised signatory on that account and the parties routinely pooled their funds.

In presentation of the plaintiff’s case counsel focused greater attention on the source of the disputed funds (the plaintiff’s superannuation entitlements); characterisation of the defendant as the plaintiff’s “carer” (she would say “paid carer”, inviting nuance beyond simple labels); and the fact that the defendant participated (she says, at the direction of the plaintiff) in the administrative process of withdrawing the superannuation entitlements.

It is no part of the plaintiff’s case as pleaded (and as expressed in his affidavits) that, if the transfer of the disputed funds to the defendant is to be characterised as a gift, the gift should be characterised as conditional upon the defendant holding the funds on trust, or otherwise, for the benefit of the plaintiff. Submissions to that effect go beyond the plaintiff’s pleaded case. Strictly, that case is simply that the defendant appropriated the disputed funds without the plaintiff’s knowledge or approval and thereby simply stole them, although that case is supplemented by submissions characterising any gift as conditional or revocable (and revoked) and inviting the Court to hold the defendant to account as a fiduciary or otherwise in equity. In this judgment I have addressed the plaintiff’s broader case.

With editorial adaptation, the defendant’s Defence (filed on 10 October 2022 without any clear signs of legal assistance) is in the following terms:

The defendant was not specifically cross examined about what she meant by the first sentence of paragraph 4 (and the concluding words of that paragraph) of her Defence. It is quite plain by the last sentence in paragraph 10 of the Defence that she transferred the disputed funds “online”. Her understanding of the nature and scope of “the NAB authorisation” was not explored and the NAB’s documentation relating to the terms of operation of accounts with it was not in evidence.

The reference in this last paragraph to “criminal proceedings” refers I infer, to the fact that the plaintiff lodged a complaint with the Police alleging that the defendant had committed a “fraud” against him. There is no evidence that criminal proceedings were ever commenced against the defendant and her evidence is that the Police have not charged her with any offence.

The reference in paragraph 12 of the Defence to a “text” to the plaintiff’s sister [A] is, in fact, a reference to two text messages sent by the defendant to [A] on 26 and 28 March 2022 respectively, which appear to have been marked as Exhibit 2 on the first day of the trial of the plaintiff (on a charge of “assault occasioning actual bodily harm”) conducted by the Local Court (during cross examination of the defendant by counsel then appearing for the plaintiff, then the accused person).

The copy of the exhibit is deficient in some respects but, not, I trust, to the extent that denies the following extract of the texts as a fair copy.

The first text (timed at 9.19 am on 26 March 2022) is in the following terms, with editorial adaptation and emphasis added:

The reference to “DB” in this text is to a person associated with the Kurramulla Aboriginal Corporation, in whom the plaintiff regularly confided about his personal affairs and with whom he lived for a short time after the fateful altercation of 28 March 2022. He was not called as a witness in these proceedings.

The second text (timed at 1.24 pm on 28 March 2022) was in the following terms (with editorial adaptation and emphasis added):

This text was evidently sent after the fateful confrontation on the morning of 28 March 2022.

The timing of the text of 26 March 2022 is not entirely clear. On its face it appears to have been sent at 9.19 am on 26 March 2022.

In his first affidavit (sworn 27 May 2022) the plaintiff says that his sister “on 26 March 2022” (at an unspecified time) sent him a screenshot of a text message that she received from the defendant at 8.30 am on 26 March 2022. That relayed text appears who have comprised only the paragraph of the defendant’s full text commencing “We have [R’s] super …” and “… I still won’t turn my back on him”.

I read that passage as consistent with a disclosure by the defendant to the plaintiff’s sister (and indirectly at least to the plaintiff himself) that she had appropriated the disputed funds.

That is the way the plaintiff’s present solicitors interpreted the text in a letter of demand dated 5 May 2022 when they commenced acting for the plaintiff.

In that letter, having referred to their predecessor’s letter of demand dated 31 March 2022, they wrote:

In the context of the parties’ familial relationship and the circumstances in which the plaintiff’s superannuation entitlements were withdrawn, I do not read the defendant’s statements, “it’s his money, not mine” and “I may have no choice” and “just pay him back”, as inconsistent with the funds having been given to her for her own use and benefit.

On the contrary, I read it as consistent with a belief on the part of the defendant that she had been given the funds in the context of an ongoing family relationship which, for all its ups and downs, she anticipated would continue.

The notion that she would “pay him back” is indicative of her sense that ownership of the funds had passed to her. The notion that “[it’s] his money, not mine” is indicative of an awareness of the source of the funds. The notion that “I still won’t turn my back on him” reflects a concept of family with reciprocal moral imperatives that transcend legal obligations.

The raw emotions attending the defendant’s receipt of the solicitor’s letter of demand dated 5 May 2022 (building on the earlier letter of demand dated 31 March 2022, followed up with two emails on 1 April 2022) are manifest in two emails she sent in response to the letter of demand dated 5 May 2022. The first was sent at 4.43 pm on 5 May 2022 (within about 40 minutes of receipt of the letter of demand of that date) and the second was sent at 10.40 am on 6 May 2022.

The first of those two emails was in the following terms:

The second email was addressed to the plaintiff’s solicitor in the following terms:

The defendant’s second email, if not the first, had a subject heading, “Re: No further contact regarding [RT]”.

As it happens, the plaintiff’s solicitor (H) sent a follow-up email time at 10.47 am on 6 May 2022 repeating the terms of the letter of demand dated 5 May 2022 and foreshadowing the commencement of the current proceedings if the defendant did not, before 9 am on 9 May 2022, pay into the solicitors’ trust account “the sum of $161,700 (less the amount paid to [the plaintiff’s previous solicitors’] trust account in part payment of Mr [T’s] Funds)”.

On the evidence before the Court it is not clear whether the defendant had by this time (6 May 2022), or by the time a statement of claim was filed on 23 May 2022, disclosed to the plaintiff that she had destroyed cash representing the disputed funds.

I note in passing that the transcript of the first day of the trial of the criminal assault charge against the plaintiff (19 December 2022) records that:

I infer from that transcript that the plaintiff and his lawyers may have known no later than 19 December 2022 that the defendant claimed to have destroyed the disputed funds. That does not necessarily follow, I accept, but it is a possibility.

A letter of demand addressed to the defendant by the solicitors for the plaintiff on 31 March 2022 of itself put the parties on notice of an allegation that the defendant had engaged in criminal conduct.

On the second day of the criminal trial (7 August 2023) the plaintiff’s cross examination of the defendant continued, she was given a section 128 certificate and evidence of her physical destruction of Australian currency was given, as it was (in similar circumstances) before me.

Not for the purpose of relitigating the proceedings in the Local Court which, by a dismissal, culminated in the plaintiff’s favour, but for the purpose of demonstrating the broad consistency of the defendant’s version of events, reproduced here (with editorial adaptation and emphasis added) is a statement by a Senior Constable of the NSW Police (dated 29 March 2022) of the grounds upon which he caused a Provisional Apprehended Domestic Violence Order to be made against the defendant (under the Crimes (Domestic and Personal Violence) Act 2007 NSW), returnable before the Local Court on 6 April 2022:

“Condition 2” and “Condition 9” respectively related to restraints operating on “R” not to contact the “PINOP” and not to approach her or the Rockdale Unit.

The witness statement of the plaintiff which was tendered in the prosecution case on the second day of the criminal trial of the plaintiff (ostensibly to facilitate dismissal of the assault charge and the provisional DVO against the plaintiff) is not in evidence in these proceedings.

The plaintiff’s account of the events of 28 March 2022 given by him in his third affidavit (sworn 15 June 2023) is in some respects corroborative of the defendant’s version of events. In particular, he attributes to her tears, accompanied by a question: “Why could you beat me?”.

What is striking about both parties’ account of their altercation is that neither party refers explicitly, if at all, to the fact (then known to both of them) that the defendant had taken control of the plaintiff’s superannuation payout, although it is (ambiguously) implicit in the paragraph commencing “Eventually” in the Police Statement. That is consistent with an understanding, on both sides, that the funds had been gifted to the defendant beyond recall.

On the defendant’s case, the paragraph commencing “Eventually” needs to be read in the context of her belief that she had been gifted the disputed funds but was nevertheless (as the police statement confirms) trying to obtain an independent source of funding for her mother’s funeral through her “go-fund-me website”.

Her evidence is that the altercation had nothing to do with the superannuation funds. It was about the terms upon which their everyday life was customarily conducted; without notice to the defendant, the plaintiff had acquired a “smart phone” and a small, unbudgeted amount of cash. Their altercation had no overt connection with the superannuation funds although the plaintiff, in retrospect, says that he was quietly resentful that the defendant had withdrawn his super (a doner’s remorse) and sometime after the altercation (that day, but at a time not disclosed in the evidence) he attended his bank (the NAB), without notice to the defendant, and revoked her authorisation as a signatory on his account.

Whether or not the parties’ personal relationship or joint residence would otherwise have come to an end, the provisional DVO effectively brought both to an end. The plaintiff was warned off any contact with the defendant (otherwise than through a lawyer) and excluded from the home unit until that time jointly occupied by the parties.

Significance may attach to the return date of the provisional DVO (6 April 2022), the date upon or about which the defendant says she commenced physical destruction of the disputed funds. On the same date (6 April 2022) she was due to see her “back surgeon” to have scans done to see what damage had been done when she was injured in a car accident in February 2022. On the same date (6 April 2022) she attended, with police, on a mental health team. The sixth of April 2025 was a stressful day for a fragile, vulnerable person.

The further significance of the date 6 April 2022 appears in a letter dated 8 April 2022 addressed by the “Acute Care Team, St George Community Mental Health Service” (of the South Eastern Sydney Local Health Network of the NSW Department of Health)” to the defendant.

With editorial adaptation, it reads as follows:

The letter included a table entitled “Patient Assessment” with a section headed “Description of Presenting Complaint/Problem” which recorded the following entries:

The period during which the defendant says she physically destroyed substantially the whole of the disputed funds is estimated to have been between 6-8 April 2022 or thereabouts.

That the letter of the Acute Care Team records that the defendant was accompanied by Police when she attended upon the Team (she says she was “sectioned” by the police under the Mental Health Act) is consistent with her claim to have had a mental health breakdown at that time, but the absence of any reference to a suicidal tendency of mind might be thought worthy of notice, as is her apparent failure to make herself available for further assessment. In light of her fear of prosecution for the destruction of currency the fact that there is no reference to her destruction of the disputed funds is equivocal. She says that she received multiple phone calls from the Mental Health Service following her attendance upon them on 6 April 2022 which, in her then mental state, she did not engage.

The parties are first cousins. They are of Aboriginal descent. The plaintiff appears to have engaged actively with his Local Land Council. The defendant less so. Rightly or wrongly, she says that she has felt intimidated by a Land Council activist who has acted as a “support person” for the plaintiff and stalked her.

Although not canvassed in the evidence (and, accordingly, not the subject of any finding) I do not exclude the possibility that the plaintiff’s support person kept the defendant under observation in case a change in her lifestyle might have offered a clue about what happened to the disputed funds.

Incidentally, when challenged in cross examination about what she had done with those funds she (without material contradiction) volunteered that, she continued to live frugally, without financial resources. Without funds, she remarked, she had been unable to have the operation she had intended to arrange with the benefit of the disputed funds; she was not contradicted about not having had the operation. Her lifestyle is consistent with destruction of disputed funds.

Counsel for the plaintiff endeavoured, by cross examination of the defendant about her pattern of using multiple bank accounts and transactions effected by her before and after 8 April 2022, to suggest that she had not in fact destroyed any of the disputed funds. In my assessment, that endeavour failed, not the least because the amounts in question fell far short of the amount of the disputed funds and the defendant’s explanation of her sources of income (including contributions from her partner) was not demonstrated to be false or implausible. Cross examination about inadequate disclosure of her finances in response to the freezing orders made against her went nowhere beyond an attack on her credit.

The plaintiff was born in July 1967. The defendant was born in November 1977, ten years junior to the plaintiff.

The parties did not address the question whether cultural significance attaches to the way they pooled their resources but I do not exclude the possibility that both parties demonstrated their Indigenous heritage in that regard. I take this as a reminder to remain open to their personal life experiences in assessment of the facts of the case.

Whether the parties had contact before 2013 is not clear on the evidence. However, the plaintiff says that he first came to know the defendant and began to live with her, to pool their resources, in or about October 2013. He was then aged about 46 years. She was then aged about 36 years.

The principal events relating to these proceedings occurred in late 2021 and early 2022, but material events occurred before and after that time frame.

The critical events occurred in or about March 2022. At that time the plaintiff was aged about 54 years and the defendant was aged about 44 years.

As recorded in an account statement dated 3 March 2022 issued by Colonial First State in respect of the plaintiff’s “FirstChoice Wholesale Personal Super Account”, the plaintiff at that time held superannuation entitlements (expressed as a “withdrawal amount” after deduction of tax) of $162,216.69. The evidence does not disclose when and how those entitlements accrued to the plaintiff but it does disclose that, before he was granted a disability pension (at first declined but allowed on appeal, with assistance of the defendant) in 2014, he was actively employed, including in a managerial role.

From a date no later than 11 June 2020 the plaintiff made inquiries about early access to his superannuation entitlements.

On that date he received (via the defendant’s email address) a letter from the “Claims Case Manager, Insurance Services, CFS Operations Colonial First State” which, in substance, was in the following terms (anonymised):

On or about 29 February 2021 a general practitioner, [Dr E] signed a “Certificate of Permanent Incapacity” addressed to Colonial First State. It described the plaintiff’s incapacitating ill health as “Intellectual disability/depression/shortness of breath” and certified that, in the opinion of the doctor, the plaintiff was “unlikely to ever be gainfully employed in a capacity for which he or she [sic] is reasonably qualified because of education, training or experience”. The Certificate took the form of a declaration of opinion without elaboration of what employment qualifications the plaintiff may have had but for his specified ill health.

On or about 24 April 2021 the plaintiff obtained a similar “Certificate of Permanent Incapacity” from a neurologist, [Dr S]. The doctor’s hand written description of the plaintiff’s incapacitating ill health is barely decipherable, but includes reference to “mental health issues” and “vascular risk”.

With [Dr S] as his witness, on 24 April 2021 the plaintiff signed a “Statutory Declaration” (expressed to be governed by the Statutory Declarations Act 1959 NSW) declaring that he had become “permanently incapacitated on 1 August 2014”. The precise significance of that date is not manifest.

The evidence includes a St George Hospital “Discharge Summary” dated 27 September 2021 which records that on that day the plaintiff, with the defendant, presented himself to the Hospital with an atypical chest pain which was taken seriously but discounted as not requiring hospitalisation. He was discharged “to home with carer” with a treatment option “simple analgesia” and recommendations for a “GP follow-up over the next few days” and consideration of a cardiologist “follow-up”, with a return to the Hospital “if any new or evolving concerns including worsening pain”. The chest pain appears to have subsided after approximately three hours.

The discharge summary also records that the plaintiff had “recently completed two weeks of respite at Bexley Age Care”. In an affidavit he records that as having occurred in July 2021. I infer from this and other evidence that the plaintiff was from time to time placed in “respite care” so that he and the defendant could take a break from each other.

On 25 January 2022 the plaintiff received (via the defendant’s email address) a letter addressed to him with the subject reference “Colonial First State -Conditions Of Release”, in the following terms (anonymised):

On 11 February 2022 the plaintiff, with a Justice of the Peace [ATR] as his witness, executed an “enduring power of attorney” in the Queensland style (governed by the Powers of Attorney Act 1998 Qld) expressed to be in favour of the defendant. The plaintiff executed the power of attorney with withdrawal of his superannuation entitlements in mind.

The Queensland connection may reflect the fact that the plaintiff’s sister [A] (with whom he now lives) lives in Queensland, but that possibility was not explored in the evidence. Nor was a reference in formal documentation to the fact that the defendant held a Queensland driver’s licence. Her usual residence was, however (and is), in New South Wales, but she moves between NSW and Queensland.

The plaintiff delivered the power of attorney instrument to the defendant, but it never operated according to its terms (and section 44(8) of the Powers of Attorney Act 1998 Qld) if only because she declined to endorse her acceptance of her appointment as an attorney.

During the hearing of these proceedings the defendant produced to the Court on 15 October 2025, as counsel for the plaintiff confirmed, the original instrument, unsigned by her.

She was adamant that she could not act as the plaintiff’s attorney because she was his “paid carer”. That view, strongly held, was based on a number of statements in the instrument that an “attorney” could not be a principal’s “current paid carer”. In the defendant’s cross examination of the plaintiff it emerged that she had protested to him that she was ineligible to act as his attorney and suggested to him that, if he wanted an attorney, he should appoint his sister, “A”. He evidently accepted the defendant’s objection to acting as his attorney while a “paid carer, but he subsequently satisfied himself, by “Google searches”, that the expression “paid carer” did not extend to a family member in receipt of a carer’s pension.

In cross examination by the defendant he agreed that she “may, in fact, have” suggested to him (as she says she did) that “A” be his “power of attorney” because she was not his “paid carer”. This episode is consistent with the defendant’s insistence that she never set out to appropriate the plaintiff’s superannuation entitlements without his knowledge and approval.

On 18 February 2022 the plaintiff signed a “First Choice Wholesale Personal Super Withdrawal Form” bearing that date, seeking a payout of his superannuation entitlements to him, payable to an account held in his name at the National Australia Bank. The form recorded the defendant’s email address and her mobile number as points of contact.

The plaintiff deposes that he signed the withdrawal form in blank, but there was nothing untoward about the information recorded in the form and the fact that it was completed with his authority is confirmed by a statement in his affidavit that on the same day he signed the Form he met with a Justice of the Peace at Rockdale Post Office to obtain certified copies of his photo identification to accompany the Form as submitted to Colonial First State.

The fact that the plaintiff attended upon a Justice of the Peace to witness a Power of Attorney instrument on 11 February 2022 and actively obtained certified copies of his photo identification for submission to Colonial First State on 18 February 2022 does not sit comfortably with his evidence that he had no present intention to withdraw his superannuation entitlements but (as stated in paragraph 12 of his first affidavit, sworn 27 May 2022) that he anticipated not withdrawing his superannuation for several years.

With or without the plaintiff’s express authority, the defendant lodged the withdrawal form with Colonial First State on or about 3 March 2022 (she says she posted it, so that must have been sent shortly before 3 March 2022), the date recorded on a Colonial First State document entitled “Withdrawal Confirmation”, to which reference has previously been made.

The evidence adduced by the plaintiff includes what appears to be an office copy of a letter dated 4 March 2022 addressed by Colonial First State to the plaintiff headed “Your withdrawal has been completed”. It enclosed for the plaintiff’s records a copy of the Withdrawal Confirmation, a tax “payment summary” and a “closed account statement”. The latter two documents record that the plaintiff had (on a date not specified) made a “non-lapsing death benefit nomination” in favour of the defendant as to 100% of his benefit entitlements in the event of his death. The defendant’s “relationship” with the plaintiff was defined as “Interdependency Relationship”.

The plaintiff says that he did not receive the letter dated 4 March 2022 until 17 March 2022, at which time he had a disputed, undocumented conversation, with the defendant. Objectively, his evidence establishes, at least, that he had knowledge of the defendant’s appropriation of the disputed funds to herself well before the fateful confrontation of 28 March 2022.

In cross examination by the defendant, the plaintiff agreed that she had not hidden the letter dated 4 March 2022 from him or attempted to do so. His answer was not, of itself, inconsistent with his assertion that he had no knowledge (or perhaps appreciation) of the withdrawal of super before 17 March 2022. That aspect of the question was not explored in further cross examination or re-examination.

Both the plaintiff and the defendant are unemployed, impecunious and surviving on a social security pension.

Each of the parties plainly has a disability. Both have chronic health problems. Both are, and at all material times have been, vulnerable to exploitation.

In neither case does their incapacity disentitle them from conducting these proceedings without a tutor.

The nature of the plaintiff’s disability was hotly contested by the defendant. She maintains that he has never suffered from any cognitive impairment or intellectual disability. That said, as it suits him, he claims a mental element to his disability. That he suffers from some form of disability may be accepted, but not necessarily that he suffers from any specific form of mental infirmity. His disability appears to have originated in a heart attack in 2013 and a deterioration in his general health thereafter. In giving evidence he appeared to be attentive, focused on the task at hand and quick to counter challenges made by the defendant in her cross examination of him.

The nature of the defendant’s disability is essentially physical in the sense that her emotional well-being (and her susceptibility to suicidal ideation and thoughts of euthanasia) are products of chronic pain and social trauma.

In December 2021 her stepfather died. In January 2022 her mother collapsed and, after a short illness, died in her arms. Her chronic pain was aggravated by a motor vehicle accident in February 2022. She was traumatised by these events and preoccupied with raising money (via a “go fund” campaign on the Internet) to pay for a funeral for her mother, a task with which she was engaged on the morning of 28 March 2022 before her altercation with the plaintiff and after she had taken control of his superannuation monies.

Although her case presentation at the hearing of these proceedings reflected the usual disorderly characteristics of a self-represented litigant, she exhibited a focused and intelligent mind.

The plaintiff was at all material times, and is, in receipt of a disability support pension. At all material times the defendant was in receipt of a carer’s allowance referable to care of the plaintiff.

At all material times the defendant characterised herself as the plaintiff’s “paid carer” and she took her obligations as the plaintiff’s “carer” seriously, seeking to protect him from exploitation by third parties, for example, by restricting his access to a mobile phone because of his susceptibility to scammers and providing a home for him.

Too much should not be made of the defendant’s formal status as a “paid carer” for social security purposes, or generally the label “carer”, or any suggestion that either party was “dependent” on the other. They were, if anything, mutually dependent upon one another as members of the same household.

The plaintiff was well able to look after himself in times when the defendant was away from Sydney and, on the frequent occasions that she was hospitalised or physically incapacitated, he actively cared for her. Their caring functions were symbiotic in character.

The relationship between the parties was essentially familial. They lived together, as cousins, to pool their limited resources. Neither had a psychological ascendancy over the other, although they evidently annoyed one another from time to time. From his perspective, the plaintiff resented the defendant’s “rules” of the household. From her perspective, the defendant resented the plaintiff’s pretence that he was incapable of performing household chores even though, to the outside world, he generally presented himself as a fully capable adult (unless it suited his interests otherwise).

From the fact that the defendant was his “paid carer” and managed their household finances, pooling their limited resources, the plaintiff invites the Court to find that the defendant owed him the obligations of a fiduciary and was thereby bound to hold the disputed funds on trust for him even if, as a matter of form, she received the funds as a gift.

An inquiry as to whether the defendant owed the obligations of a fiduciary to the plaintiff and, if so, what were the nature and scope of those obligations requires close attention to all the circumstances of the case, focusing upon substance rather than form and looking beyond labels such as “disabled person” and “carer” which, for the sake of social security law, characterise the parties’ relationship.

A curious, and tragic feature of these proceedings is that, on the defendant’s evidence (which, in substance, I accept) the disputed funds were largely withdrawn by her in cash from a bank account in her name to which she had transferred them (from an account of the plaintiff for which she was then an authorised signatory) and, in a mental fog attended by thoughts of suicide after a physical confrontation with the plaintiff on 28 March 2022 and threats of legal proceedings (civil and criminal), she physically destroyed substantially the whole of the disputed funds between 6-8 April 2022 or thereabouts, having applied or retained a relatively small (unquantified) sum for personal purposes.

The defendant did not disclose to the Court that she had destroyed Australian currency until she was given a certificate under section 128 of the Evidence Act 1995 NSW that overcame her objection to the making of a disclosure for fear of being prosecuted for an offence under the Crimes (Currency) Act 1981 Cth, section 16.

Section 16 is in the following terms:

But for a grant of a section 128 certificate the fate of the disputed funds may not have been revealed to the Court. The defendant’s fear of criminal prosecution was palpable. In the course of interlocutory proceedings associated with a freezing order (incorporating an asset disclosure order) that was made against her by Kunc J as a Duty Judge (on 21 and 27 June 2022) she resisted two attempts on my part (on 19 June and 6 August 2024) to have her disclose the whereabouts of the funds that she freely admitted receiving.

For at least two reasons, at the time of the final hearing before me none of this would have come as a surprise to the plaintiff or his lawyers.

First, when these Supreme Court proceedings were on foot, the defendant on 1 August 2023 sent an email to the solicitors for the plaintiff showing a screenshot of a bank statement recording (in summary form) her deposit of disputed funds in her bank account, and her withdrawal of them, with a text that included the following statement:

Secondly, at the hearing of a criminal charge of assault brought against the plaintiff by the NSW Police in the Local Court, arising from the parties’ altercation on 28 March 2022, the defendant (reluctantly) gave evidence as a witness for the prosecution. Those proceedings were heard on 19 December 2022 and 7 August 2023. On the second day, over her objection but with the benefit of a section 128 Certificate, the defendant was cross-examined (via AVL) about what she had done with the disputed funds. She told the Local Court, as she told me, that she had converted the funds to cash and, in a mental health fog when she was depressed and suicidal, destroyed most of the currency, leaving nothing left.

The charge against the plaintiff and an application by the Police for an apprehended domestic violence order against him were dismissed. He claimed to have acted in self-defence and the Court was not satisfied that the defendant was a reliable witness, particularly as the prosecutor (with the acquiescence of counsel for the plaintiff) tendered the plaintiff’s witness statement, thereby allowing his version of events to be placed before the Court without his version of events being tested.

For the purpose of these proceedings the principal points to be drawn from the proceedings before the Local Court are the consistency of the defendant’s explanation of events and the fact that she had given evidence of her destruction of disputed funds before the Local Court tells against characterisation of the evidence given before me as a recent invention, as I might have concluded without necessary context.

In moving towards a judgment in these proceedings, I have had an opportunity to observe the defendant, to hear her story, and to see her cross examined by counsel. I have allowed the plaintiff extensive access to the subpoena process in order to test the veracity of the defendant’s evidence and to make inquiries of banks and government authorities. Those inquiries, to the extent they have been undertaken, have provided no material evidence (beyond bank statements) testing the plausibility of her evidence about large cash withdrawals. I have also invited the plaintiff to make inquiries about the traceability of currency by reference to individual serial numbers, without any evidence produced on that topic.

It is in these circumstances that I have come to the conclusion that not only was the defendant’s evidence about destruction of disputed funds truthful but she destroyed cash at a time when she was not mentally competent to make an informed decision about what to do with the funds in the light of her receipt of a letter of demand dated 31 March 2022 (and follow up emails dated 1 April 2022) served on her by the plaintiff’s then solicitors alleging that she had dishonestly misappropriated the plaintiff’s money.

That letter, well intentioned as it may have been in the perceived interests of the plaintiff, was entirely counter-productive in the effect it had on an emotionally and mentally fragile defendant, although she maintains she was unconcerned about the letter because she knew she had done nothing wrong. An officious, threatening letter delivered a few days after (as the defendant viewed events) she had been assaulted by the plaintiff might reasonably be thought to have contributed to the state of mind in which she destroyed currency and contemplated suicide. This is none the less so because the letter was addressed to the defendant by reference to her first name alone, perhaps in recognition of her familial relationship with the plaintiff and her emotional frailty, and she stoically claimed to have been unaffected by the letter.

With anonymisation, the letter was in the following terms:

At the time (on 30 March 2022) the defendant transferred $1,700 from the plaintiff’s NAB account to her own, she had no notice that the plaintiff (on 28 March 2022) had instructed the NAB to terminate her authority to operate his account or, indeed, that he disputed her entitlement to the disputes funds.

What might otherwise seem an implausible version of events by the defendant is made plausible by evidence that: (a) the plaintiff had forcefully over time insisted that he had no need of the funds and that (because of her ill health and tragedy attending her life) she had a greater need for the funds than him; (b) she for a long time resisted the plaintiff’s ongoing offers of the funds but ultimately relented and, at that time, made informal statements in a family setting, intended to be charitable rather than binding in a legal sense, to the effect that she would hold the funds for the benefit of the plaintiff as well as herself unless she had a need to access them; (c) the parties fell out when (on the defendant’s case, she was assaulted by the plaintiff), causing the defendant to have a change of heart about disposition of the funds she believed were hers to dispose of as she thought fit, albeit with ongoing sense of a familial obligation to assist the plaintiff if he was in need; and (d) the defendant’s capacity for rational thought at the time was profoundly compromised by depression and suicidal thoughts arising out of the recent deaths of her stepfather and her mother.

In presentation of the plaintiff’s case, counsel highlighted the fact that for a number of years before the alleged misappropriation the defendant received a carer’s allowance as the defendant’s nominated carer for the purpose of his receipt of a disability pension. I accept that that fact is relevant to any characterisation of the relationship between the parties. However, its relevance needs to be assessed in the context of it being convenient for both the plaintiff and the defendant each to receive as substantially their only income a pension, living inter-dependently in a home unit rented by the defendant. Having seen them both give evidence, I doubt that it can be fairly said that either party had a psychological ascendancy over the other. The plaintiff, in particular, is not a shrinking violet.

Viewed through the prism of equity jurisdiction (but perhaps for the current absence of property to which a declaration of trust might attach) their relationship is more readily characterised as a failed joint endeavour between equals, equally vulnerable in one way or another (Muschinski v Dodds (1985) 160 CLR 583 at 620; Baumgartner v Baumgartner (1987) 164 CLR 137 at 147-150) than as a relationship of influence abused by a dominant party (Johnson v Buttress (1936) 56 CLR 113 at 134-136; Quek v Beggs (1990) 5 BPR 11,761 at 11,764-11,765) or a fiduciary relationship the subject of a breach of an obligation owed by a fiduciary to a beneficiary (Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 at 68, 96 and 141).

Even so, characterisation of the parties’ relationship as a “joint-venture” would not avail the plaintiff of a remedy, if (as I find) he made an unconditional gift to the defendant, intending her to be free to use it for her own purposes, albeit with an expectation of mutual benefit within a family context. Cf, Baumgartner v Baumgartner (1987) 164 CLR 137 at 149.

The familial character of the parties’ relationship was not far removed from a societal norm in the gender roles they, by reciprocal complaints, assigned to each other. The plaintiff’s complaint that the defendant sought to “control” him by “rules” of the household she managed (which may have a kernel of truth but is exaggerated by a lack of insight on the part of the plaintiff about his disability or, at least, his reliance upon his status as disabled) is matched by her evidence (which I accept) that the plaintiff was habitually unruly, attention seeking and disruptive, and a dominant personality who insisted that she care for him while at the same time “gaslighting” her in the sense of psychologically manipulating her into questioning her judgement (including her resistance to accepting his offer of his superannuation money).

In making that assessment I have taken into account that the only “independent” witness who gave evidence at the final hearing of these proceedings (admittedly a “best friend” of the defendant), and was cross examined (via AVL from the USA), CEA, corroborated the defendant’s evidence of the plaintiff’s habitual unruly attention seeking, disruptive behaviour, intelligence and persistent insistence that the defendant accept the disputed funds for her own use as a gift, and the defendant’s initial reluctance to accept a gift.

Characterisation of the parties’ relationship as a “joint endeavour” in the context of equitable principles is not inconsistent with a finding (which I make) that the plaintiff freely and voluntarily gifted his superannuation entitlements to the defendant, recognising that such a finding negates the operation of equitable principles that might otherwise be applicable.

On my findings, the plaintiff intended to make an unconditional gift of his superannuation entitlements to the defendant, she intended to accept the gift without strings other than family charity, and with his knowledge and approval she (without notice of any withdrawal of her authority to deal with the funds remaining in the plaintiff’s bank account), took delivery of the gift by withdrawal of the entitlements and transfer of the funds representing those entitlements into an account in her name. The gift was complete at that time, if not earlier. The gift was not expressed by the plaintiff to be conditional or revocable. The gift, having been made, could not be recalled. That the defendant subjectively intended that, subject to contingencies, she might use the funds, charitably, for the benefit of the plaintiff as well as herself in the context of their family connection (and communicated that intention to the plaintiff) provides no foundation for characterisation of the plaintiff’s gift as conditional, revocable or otherwise qualified. The terms of the gift were set by the plaintiff’s unqualified offer of a gift.

I do not make a finding (and the case pleaded by the plaintiff did not extend to a case for a finding) that the plaintiff gifted his superannuation to the defendant in reliance upon, or in return for, an assurance by her that she would hold, or apply, the superannuation funds in whole or part for him. The plaintiff’s essential case, and his evidence, was simply that he made no gift and the defendant’s appropriation of his superannuation was theft.

I do not regard as decisive of the question of “gift or no gift” or the question whether any gift was “conditional” or otherwise qualified the fact that the basis upon which the parties cohabited was that they generally pooled their finances in every-day life; the fact that the defendant initially proposed that the parties pool their finances; or the fact that the plaintiff both acquiesced in, and, from time to time, resented that arrangement. Nor do I regard the existence of that arrangement, which was directed to the parties’ day-to-day life, as indicative of a limitation on the plaintiff’s offer of a gift. It was open to the plaintiff to offer, and to the defendant to accept, a gift within the framework of their ordinary arrangement or beyond that framework.

The defendant’s essential case (in favour of which I find) is that she accepted the plaintiff’s gift of the “entirety” of his super funds, took delivery of them (to the extent of $160,000) and was entitled to deploy that money as she wished.

Neither party has benefited from their unforeseen, tragic encounter on 28 March 2022 and the sequence of events thereafter which, by misadventure, resulted in the destruction, and loss, of the funds.

Without coercion or undue influence of any kind the plaintiff freely and voluntarily offered to give the defendant his super. It was a continuing offer. He voluntarily gave her the means to withdraw it, and told her she could withdraw it, without conditions or qualifications. Acting on that authority she withdrew the super and appropriated it to herself, thereby perfecting the gift, without notice of any withdrawal of her authority to deal with the funds and without complaint by the plaintiff. The gift having been given and accepted without conditions it could not be revoked or recalled after the parties fell out shortly thereafter.

The gift was a domestic transaction unattended by an intention to create legal relations, by an inequality of power, by psychological dominance or taking advantage of a special disability. The gift was made and accepted by family members who lived together (in premises rented by the defendant) so that they could pool their resources in daily living. The defendant did not occupy the office of an attorney or agent for the plaintiff. Although she was a “paid carer” for the purpose of administration of the pension she received, the pension was used as part of the joint resources of the parties. Her status as a “paid carer” in that context did not confer on her the status of a fiduciary she would not otherwise have had. Her relationship with the plaintiff was not a fiduciary one, but that of a family member living together with another family member and pooling their resources.

The equitable principles governing undue influence, unconscionable conduct and fiduciaries have no application to the facts of this case. Nor do the common law principles governing the law of contracts or the tort of negligence.

Had the facts of the case not pointed to an unconditional gift freely and voluntarily made, an analogous ground upon which equity might have intervened to grant an order for compensation, if not a proprietary remedy (had the gift been conditional upon co-ownership or made by way of a contribution to consensually pooled resources) might have been found in the principles governing the division of joint property or the pooling of resources the subject of a joint endeavour, or if the plaintiff had alleged reliance upon an intention to continue their pooling of resources in co-habitation.

A case of that nature was not pleaded or argued. The plaintiff disavowed any agreement for property to be held jointly, although he acquiesced in the defendant having access to his bank account in the management of household finances. If a “joint endeavour” or estoppel case had been advanced, a question that may have arisen is whether the defendant acted unconscionably in destroying the disputed funds (the only source of substantial wealth available to the parties), thereby putting them beyond any order for accounting, restitution or compensation in circumstances in which she acted under a mental disability, provocation and circumstances in the nature of a misadventure beyond her control. On the findings I have made there is no need to address that question.

Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, and costs, I propose that the plaintiff’s statement of claim simply be dismissed with no orders as to costs.

As presently advised, I do not propose to discharge or vary an interlocutory costs order made against the defendant by a Registrar on 13 December 2022 for non-compliance with the Court’s orders. Although the plaintiff’s present lawyers have since informed the Court that they have acted on a pro bono basis (the precise terms of which retainer are unknown to me), on or about 16 January 2023 the plaintiff’s solicitors served on the defendant a Tax Invoice for $1,001.00 which, I assume, remains unpaid.

The defendant having appeared as a self represented litigant, there is no occasion for an order for costs to be made in her favour.

She must, however, be allowed an opportunity (on terms as to time) to consider whether there is a basis upon which she can claim an entitlement to compensation arising from the “usual undertaking as to damages” given by the plaintiff as the price for the asset preservation order made against the defendant on his application.

I conclude with an acknowledgement of the assistance rendered to the Court by the solicitors and counsel who appeared before the Court on behalf of the plaintiff in a difficult case.