Theocharous v Theocharous (No 2)

1. [1]

   These proceedings concern the estate of the late Finikou Theocharous, who died in June 2023 at the age of 83. The plaintiff, who is one of her sons, makes an application for family provision under Chapter 3 of the Succession Act 2006 (“SA”).

2. [2]

   The only significant asset in the estate is the former family home, a house at Marshall Street in Bankstown. The property was the subject of related proceedings in this Court for possession brought by the executor against the plaintiff, who had remained in occupation after the death of the deceased. The proceedings came before me in February this year and I made an order for possession in favour of the executor: Theocharous v Theochaorus [2025] NSWSC 45 (“J1”). After some delay, the order was complied with, and the plaintiff gave up possession of the property.

3. [3]

   The family background is as follows. The deceased’s husband was George Theocharous (“George Snr”). He predeceased her, dying in 1998. The deceased and George Snr had five children: Andrew Theocharous (“Andrew”); Mario Theocharous (“Mario”); Maria Panayi (“Maria”); Theo Theocharous (“Theo”); and Harris Theocharous (“Harris”).

4. [4]

   The Marshall Street property was purchased by George Snr. After he died in 1998, the property passed to the deceased by survivorship. But rather than live there on her own, the deceased moved in with Maria’s family and the property was rented out.

5. [5]

   In about 2001 or about 2003 (there is a dispute about the timing) the deceased moved out of Maria’s home and returned to Marshall Street. She was joined there by Harris, who by that stage had been divorced from his former wife.

6. [6]

   The deceased lived with Harris at Marshall Street until 2022 or thereabouts (again the timing is disputed) when she was admitted to a nursing home in Yagoona. Harris continued, and continues since the deceased’s death, to live at Marshall Street.

7. [7]

   The deceased’s last will was made in 2012. It is in conventional form. The deceased appointed Andrew as her executor. The assets in her estate were to be realised, her debts discharged, and the proceeds divided between her children in five equal shares. Probate of the will was granted to Andrew in April last year. The Marshall Street property was later transmitted to him as executor.

Claim for determination

1. [8]

   The family provision proceedings were commenced in late 2023. Andrew, as executor, is the defendant. Originally, both Harris (as first plaintiff) and Mario (as second plaintiff) made claims for provision in the proceedings. The claim by Mario was not pursued.

2. [9]

   The possession proceedings were commenced by Andrew as executor late last year. They resulted in both proceedings (which, it was thought, would be heard together) being transferred to the Expedition List and allocated a hearing date in February.

3. [10]

   But a few days before the hearing was to begin, further evidence, including a recording referred to below, was served by Harris’ solicitors. This made an adjournment of the family provision proceedings necessary. I was, however, as already mentioned, able to deal with the possession proceedings.

4. [11]

   In the end there was no real dispute about Andrew’s entitlement, as executor, to possession. The debate in the proceedings only concerned costs. I ordered Harris to pay the costs of the proceedings on the ordinary basis up to 4pm on 30 January and thereafter on the indemnity basis (the indemnity costs order resulted from Harris’ failure to accept an offer of compromise served on behalf of Andrew: J1 [72]-[74]). The order did not include costs common to the two proceedings, which I decided should follow the outcome of the family provision proceedings: J1 [64]-[71].

5. [12]

   Despite accepting, through his counsel, that he could not sustain a claim for possession of the Marshall Street property, Harris remained in occupation after the Court had made an order for possession against him. He said (as he had said throughout the possession proceedings) that he had nowhere else to go. He tried to put Andrew to the trouble (and, as Harris appears to have seen it, to make Andrew shoulder the moral opprobrium) of applying for a formal writ of possession. At the same time, through his counsel, he continued to press me for an expedited hearing of his family provision claim.

6. [13]

   This approach was calculated to increase the costs of administering the deceased’s estate, to the detriment of all of the beneficiaries. Eventually, I had to tell Harris, through his counsel, that he could not expect to have the privilege of having his claim expedited if he kept dragging his feet on giving up possession. Even then, there was further delay before Harris eventually vacated on 16 April.

7. [14]

   The possession order deprived the case of the urgency which had originally resulted in it being granted an expedited hearing. Nevertheless, I retained the family provision proceedings in the Expedition List at the request of the parties while Harris was refusing to vacate. After he did vacate, I decided, as a matter of expediency, to proceed with hearing the proceedings in the Expedition List.

8. [15]

   As already mentioned, Mario initially made his own application for further provision. But this application was abandoned following the decision in the possession proceedings (cf J1 [75]). Harris is now the sole plaintiff in the family provision proceedings.

9. [16]

   Harris claims increased provision from the estate beyond the one-fifth share provided to him in the deceased’s will. Harris’ case is that he moved to the Marshall Street property at his mother’s request, so that he could look after her. He alleges that over the following 20 years or so he took most of the burden of doing so. According to Harris, his mother recognised and greatly appreciated his efforts, and made promises to him over the years that he would continue to be able to live at the Marshall Street property after her death.

10. [17]

    Originally Harris sought provision in the form of a life estate in the Marshall Street property. But at the February hearing in the possession proceedings his counsel recognised that it was not realistic to think that he would be able to live there (not least because, on his case, he had no money to pay for the property’s upkeep). He now seeks a Crisp order (see [202], [214] below) in his favour. The order sought would enable him to continue to live at the Marshall Street property, or alternative accommodation if that should become necessary, rent-free, for the rest of his life.

11. [18]

    Some years before her death, the deceased had made a loan to a local real estate agent, Mr Jim Ronis. As at the date of her death, the amount outstanding, including interest, was $36,000. Andrew drew down $5,000 for funeral expenses. The remaining $31,000 was paid out to Harris, who collected it purportedly on Andrew’s behalf. What had happened to the $31,000 became an issue in the proceedings. The money, however, never found its way into the deceased’s estate. Andrew claimed that he was unaware at the time that Harris had obtained the money from Mr Ronis, and that Harris had kept it for himself. Harris claimed that he had indeed been acting on Andrew’s instructions in obtaining the money, and had accounted to him for it. On this view, the money must have been misappropriated by Andrew.

12. [19]

    On Andrew’s case, the money was owing from Harris to the estate. Andrew made no formal claim on the estate’s behalf, but intimated that he proposed to deduct the amount from Harris’ share of the residue in due course. Mr Ronis and his son George, who actually made the payments to Andrew and Harris on Mr Ronis’ behalf, were called as witnesses.

13. [20]

    The position was complicated by the fact that, the previous October, Harris had obtained two further repayments from Mr Ronis of $11,000, representing that the moneys were required for his mother. When the time came to repay the remainder of the loan the following year, Mr Ronis had forgotten about these payments. The total amount he actually paid out was therefore $11,000 more than was in fact owing. Again, there was a dispute about whether the payments had been accounted for.

14. [21]

    Strictly speaking, if the monies were misappropriated by Harris, he would have acted without authority. The payments made by Mr Ronis to Harris would not have discharged the debt and Mr Ronis would remain liable for the debt, from the full $36,000 to the estate, apart from the $5,000 paid for funeral expenses. At the same time, Mr Ronis would have a claim for money he hadn’t received against Harris for $42,000.

15. [22]

    The issue was a relatively minor one in the scheme of things but it seemed to me to be desirable for it to be formally determined, and Harris’ liability to repay, if any, adjudicated upon, if the issue was going to be decided in the proceedings anyways.

16. [23]

    When these issues emerged at the hearing, it was agreed that the best course was for Andrew, as executor, to pursue a claim against Harris for the whole of the moneys which had been paid out, including the $11,000 overpayment, and account to Mr Ronis for that overpayment in the event that the claim succeeded. Through his counsel, Harris agreed that it was unnecessary for any formal cross-claim to be brought, or for Mr Ronis to be joined so as to pursue a claim in his own name for the overpayment. In his written final submissions, counsel for Harris attempted to resile from that agreement, but ultimately did not press this. It was agreed that if I found that Harris had appropriated the money to himself, I would enter judgment against him without the need for any formal process.

Summary and analysis of evidence

1. [24]

   The deceased was born in Cyprus in December 1939. She and her husband George met and married in Cyprus. All of their five children were born there: Andrew, in August 1961; Mario, in November 1963; Maria, in December 1965; Theo, in September 1967; and Harris, in July 1969.

2. [25]

   George migrated to Australia, arriving in Sydney in 1970. The deceased followed with their children in 1971.

3. [26]

   The Marshall Street property was bought in 1974 in the names of George and the deceased as joint tenants. Both George and the deceased worked, the deceased as a factory worker.

4. [27]

   The deceased had grown up speaking a Greek Cypriot dialect, which is quite distinct from the ordinary Greek spoken in Greece. She did not speak English or Greek and conversations with members of her family were conduct in Greek Cypriot.

5. [28]

   As already stated, George died in 1998. His death was sudden and a terrible shock to the deceased.

6. [29]

   By the time of George’s death, the loan which had been taken out to buy the Marshall Street property had been paid off and the deceased had retired from paid employment. The Marshall Street property passed by survivorship to the deceased. George died intestate and there is no evidence that there was anything of great value left in his estate.

7. [30]

   As already noted, after George’s death the deceased lived with her daughter Maria for a period of time and rented the Marshall Street property out, before returning to live there with Harris in the early 2000s. The deceased and Harris shared the house for about 20 years until the deceased moved into a nursing home at Bankstown known as “Hixson Gardens”. She was later moved to a different nursing home at Yagoona, where she died in June 2023.

8. [31]

   In his affidavit evidence, Harris placed the deceased’s move from Marshall Street to the first nursing home as having occurred “in or about 2022”. Nursing home records, however, establish that it took place in June 2021. The deceased was moved from Hixson Gardens to Yagoona in May 2022.

9. [32]

   It seems that, following George’s death, Andrew, as the oldest son, took over most of the responsibility for assisting the deceased with financial matters. At some point, the deceased granted him a power of attorney (which I assume was an enduring one, as it appears to have been used by Andrew to allow him to manage the deceased’s affairs in connection with her admission to the nursing home).

10. [33]

    One of the financial matters which comes into this judgment is a $20,000 loan which the deceased made to a real estate agent, Mr Jim Ronis. The loan was made in 2013; according to Andrew (who was aware of the arrangement) the money came from the deceased’s savings. Otherwise, the deceased appears to have had few assets apart from the Marshall Street property.

11. [34]

    It seems that under the arrangements between the deceased and Mr Ronis, Mr Ronis was not required to make regular payments of interest or repayments of principal, although the deceased may have drawn on the loan from time to time to fund specific expenses which could not otherwise be met out of her own funds (which presumably were derived from her age pension). The loan remained outstanding as at the deceased’s death.

12. [35]

    The deceased appears to have enjoyed good health until the mid-2000s, when she developed diabetes. She had a bout of cancer in 2012 from which she recovered.

13. [36]

    According to Harris, the deceased’s diabetes led to other complications which included peripheral neuropathy, causing pain and numbness in her feet. This (and the development of osteoarthritis) limited her mobility and her eyesight was affected. She also suffered from gout.

14. [37]

    The evidence does not reveal how quickly the deceased developed these other health problems after she was first diagnosed with diabetes. In his affidavit evidence, Harris identified 2015 as the approximate date when her health began to go seriously downhill. In cross-examination, however, he asserted that caring for the deceased had already been a full-time responsibility before that.

15. [38]

    Later in life, the deceased also experienced a decline in her cognitive functions. She became forgetful, and, lacking consciousness of her own failing powers, would become defiant or angry when her forgetfulness was mentioned to her.

16. [39]

    Again, the evidence does not identify specifically when the deceased’s cognitive decline began or how rapidly it progressed, but documentary evidence from the second half of 2021, when she was a resident of Hixson Gardens, shows that she had been diagnosed with Lewy body dementia. The deceased’s condition seems to have further worsened after she suffered a stroke in April 2022.

17. [40]

    Harris continued to occupy the Marshall Street property rent-free after his mother went into the nursing home. Initially, this was with the agreement of his siblings, as a temporary arrangement pending the sale of the property. But it continued after the deceased’s death in June 2023. Eventually Andrew as executor asked Harris to leave so that the property could be sold. He refused to do so, resulting in the possession proceedings to which I have referred.

18. [41]

    By the time the order for possession was made in the possession proceedings, the estate had run out of cash and the rates and utility charges for the property were substantially in arrears. Claims might have been made in the possession proceedings against Harris for compensation for the rental value of the property for the period after he was asked to leave, and for reimbursement for outgoings and utility charges for that period, but no such claim was made.

19. [42]

    As already mentioned, I later made orders in these proceedings requiring Harris to vacate the property. Those orders obliged Harris to remove “all goods and chattels” from the property when he vacated. When he eventually did so, Andrew complained that the house had not been properly cleared out and the order had not been complied with.

20. [43]

    Harris’ response was that the order did not oblige him to remove items which did not belong to him. It seems however that some of the chattels left behind did belong to him and had been left behind because he considered it impracticable to remove them. In the end, as a matter of expediency, I discharged the order, and Andrew completed the clearing out of the property at the estate’s expense.

21. [44]

    The inventory of property which accompanied the application for probate of the deceased’s will identified her assets as having been the Marshall Street property and $10,000 in cash at bank. The bank account monies appear to have been applied in paying estate expenses. By November last year, if not before, the monies had been exhausted. By February this year, Maria was owed $8,000 for probate costs and Andrew was owed $5,000 for the deceased’s headstone and other estate expenses. There were outstanding council rates of $5,000 and a further $2,000 in unpaid utility charges.

22. [45]

    By the end of the hearing, counsel for the parties were agreed, at least in broad terms, about the financial position of the deceased’s estate. The primary asset in the deceased’s estate was the Marshall Street property, which is the subject of a contract for sale for $1.3 million. Estimated expenses of the estate are:

23. [46]

    On these figures, the net value of the estate is $964,000. The figures do not include potential further recoveries from Harris, namely the Ronis loan monies ($32,000) and any costs which might be awarded against Harris in these proceedings. Nor do they include the potential further liability for any costs which might be awarded in Harris’ favour in the proceedings.

24. [47]

    Harris gave evidence in support of his claim and was cross-examined. His reliability as a witness was challenged and I will return to this question below.

25. [48]

    Harris’ brother Mario and Mario’s son George also gave evidence to support some parts of Harris’ account. Each of them was cross-examined also.

26. [49]

    A real estate agent, Mr Adrian Staltari, gave evidence about rental values in Bankstown in support of Harris’ case. Mr Staltari was also briefly cross-examined but his evidence was not controversial, so far as it went.

27. [50]

    Andrew was the principal witness in the defence case. He was cross-examined, including as to credit, and I will address the challenge made by counsel for Harris on this issue below.

28. [51]

    Evidence was also given by Harris’ and Andrew’s sister, Maria, by Andrew’s son George, and by Mr Ronis and his son George. None of these witnesses was required for cross-examination.

29. [52]

    In all, nine affidavits were read from Harris. As will be seen, there were some shifts in his evidence which I will discuss below. In order to put that discussion in context, I will briefly summarise the way in which his affidavit evidence developed.

    1. (1)

       The first affidavit from Harris was made in January last year. It was a lengthy one, following the conventional form of an affidavit in support of an application for further provision under the Act. Each of the factors identified in s 59 was addressed under a separate heading.

    2. (2)

       Harris’ second affidavit, which was made in April last year, replied to some of the points made in affidavits from Andrew which had been filed in the meantime.

    3. (3)

       In late January this year, a further major affidavit was filed from Harris (the fourth). This affidavit restated and added to what Harris had said in his original affidavit in support of the application. It was accompanied by the supporting affidavits of Mario and Mario’s son George.

    4. (4)

       On 3 February, three further affidavits from Harris were filed. One (the fifth) supplemented Harris’ evidence about the conversation which he had with his mother at Hixson Gardens in March 2022, which was later to assume particular importance in his case (see [106] below). Another affidavit, the sixth, replied to further affidavits which had been filed in January from Andrew, Andrew’s son George, and Maria.

    5. (5)

       Harris’ final affidavit, the ninth, was made on 5 May, the day before the hearing began. This affidavit responded to the affidavits from the Ronises and to further affidavits from Andrew which had been filed since February.

30. [53]

    Harris completed year 12 at high school, and obtained a trade qualification as a tiler. He lived at home with his parents until he married. After marriage, he and his wife lived together in a property they bought at Yagoona.

31. [54]

    The marriage was a brief one, and did not result in any children. According to Harris it lasted from “in or about 1996” to “in or about 1997”. As a result of the marriage breakup, there was a mortgagee sale of the Yagoona property. According to Harris there was $15,000 left over, which he shared with his ex-wife.

32. [55]

    At the end of the marriage, Harris would have been about 28 years old. Harris deposed that, at some point after the failure of his marriage and the death of his father, he moved to “the City”. This was in about 2000 or 2001. I assume that the accommodation was rented. Harris seems to have lived there until he moved to Marshall Street with his mother.

33. [56]

    In his first affidavit, Harris deposed that he moved in with his mother “in or about 2001”. In response, Andrew deposed that the deceased lived with her daughter Maria at Maria’s home in Minchinbury from 1998 to 2003. But in reply, Harris insisted that this was incorrect. He claimed to recall that he was living with his mother on 11 September 2001, the date of the September 11 attacks in the United States.

34. [57]

    Later an affidavit was put on from Maria herself. She deposed that the deceased lived with her from 1998 until 2003. And when the deceased moved out, she moved to a rental property in Bankstown, because the Marshall Street property was then tenanted. She only moved to Marshall Street when the lease ended. As already mentioned, Maria was not required for cross-examination.

35. [58]

    Harris is a gambler. He said in his oral evidence that he had been gambling since roughly 1990-1991. He would give up for several months at a time but would give up again. His gambling seems to have focussed, at least in more recent times, betting on horse races and sporting events.

36. [59]

    Harris’ gambling accounts with TAB for the period from June 2021 to October 2024 were in evidence. Those accounts record periods of intense gambling activity, sometimes involving bets of thousands of dollars a week. Some of the gambling was undertaken at the betting shop and some of it online at home. On some days (and nights) Harris appears, from the records, to have been gambling continuously for twelve hours or more. He confirmed in his evidence that from time to time he would engage in gambling sessions of that type.

37. [60]

    There seems little doubt that Harris’ gambling is a problem for him. According to Harris, he has taken breaks from gambling from time to time, which have sometimes lasted for a few months, but then he would go back to gambling again. In cross-examination he identified that took these breaks because he “lost all his money and got depressed”.

38. [61]

    After the failure of Harris’ marriage, there is no evidence of Harris having been in any long-term relationship except for one with a woman named Vanessa Kerry. According to Harris, they were together from about 2006 to about 2010. She and Harris had a son, Alexander, who was born in 2007 or thereabouts. Alexander is autistic. Vanessa retained custody of him. It seems that in the past there was a shared parenting arrangement where Harris looked after Alexander for between one to four days a week. The current position on parenting arrangements is unclear. Vanessa and Alexander are currently living at Caringbah.

39. [62]

    There is virtually no evidence about Harris’ work history. From 2001 at the latest he was on unemployment benefits. He said in his oral evidence that he was complying with the conditions which required him to seek work, but was unable to find it. Later he received a carer’s pension for looking after his mother. According to Harris, this began in about 2013.

40. [63]

    There was some evidence that Harris continued to work on occasion as a tiler. Andrew’s son George deposed to paying him $10,000 to undertake tiling work in a property owned by him in 2019. This was denied by Harris.

41. [64]

    In cross-examination, Harris was shown messages about the work for George which were said to have passed between him and Andrew’s wife Maria. He did not admit their accuracy. Counsel attempted to take this further by asking Harris to produce his phone, but the attempt ended inconclusively when Harris said he no longer had the phone. He said that in fact he had had a large number of different phones which he could not put his hands on.

42. [65]

    There was also cross-examination of Harris on credits shown in his bank statements for sums of several thousand dollars from TAB, representing gambling winnings. Counsel suggested that these transactions were Harris’ “income”, and that in effect he was a professional gambler. This was not admitted by Harris and again the cross-examination proved inconclusive.

43. [66]

    As already noted, Harris continued to live at the Marshall Street property after his mother was admitted to the nursing home. He went back onto unemployment benefits.

44. [67]

    In cross-examination, counsel put to Harris that his failure to find paid employment while he was living at Marshall Street was a lifestyle choice. Harris denied this. He said that he simply could not find work.

45. [68]

    Harris deposed that the decision for his mother to go into a nursing home was made at a family meeting attended by each of the siblings as well as Andrew’s son George and Maria’s husband Peter. According to Harris, neither he nor Mario wanted the deceased to go into a nursing home, but Andrew used the fact that he had a power of attorney to push it through.

46. [69]

    Harris deposed that at the meeting there was then a discussion about selling the Marshall Street property. Both Mario and Theo proposed that Harris should be allowed to stay for a period of time. Theo proposed two years, but Mario said the period should be twelve months. Harris’ understanding was that he would be allowed to stay for that period unless a good price could be obtained for the house in the meantime.

47. [70]

    Andrew rejected the idea that he prematurely forced his mother into a nursing home. He said that there was no alternative because her doctors had advised that she required 24-hour care. The issue was not addressed in cross-examination.

48. [71]

    According to Harris, he was diagnosed with stage-3 bowel cancer in March 2023. He has undergone chemotherapy. There is, however, no medical evidence to confirm this, or to indicate his prognosis. He also deposed in his affidavit that he was suffering from insomnia, cysts on his liver and depression, but again there is no medical evidence to confirm these diagnoses.

49. [72]

    Harris has no assets to speak of. He now receives a disability pension.

50. [73]

    Harris says that, after surrendering possession of the Marshall Street property, he spent some time living in his car. Later the car was towed away, and he spent some further time living in a room above his nephew’s (presumably George, Mario’s son) restaurant. He was apparently also told by Ms Kerry that he could stay with her for a day “here and there”. What has happened to Harris’ car, or what his current living circumstances are, are unknown. He has applied for government housing but has been told that it might take years to be approved.

51. [74]

    In his affidavits, Harris deposed that he had a very close relationship with the deceased. During his marriage, he would see the deceased every day. After his marriage broke up and he moved to the city, he would see her once a week. While they lived together, he was a constant presence in her life as well as helping around the house. After she moved to the nursing home, he would visit her every day.

52. [75]

    Harris deposed that after he moved into the Marshall Street property, he performed all of the maintenance on the property including the front and back yards, as well as repairs. He deposed that he also undertook renovations for the property including renovations of the granny flat and renovating the bathroom, and installing two further bathrooms.

53. [76]

    Andrew, however, in his affidavit deposed that the works on the “granny flat”, which was an extension of the property at the rear, was undertaken by George Snr before he died in 1998. Andrew also deposed that the deceased paid for any materials that were needed for maintenance work.

54. [77]

    In reply, Harris accepted that his father had undertaken renovation and extension work, but maintained that he himself had undertaken the extension work at the back of the property. Harris acknowledged that the deceased did make “some payment for materials”. He went on in his affidavit to claim that he had made payments, but the form of the evidence made it inadmissible, and it was successfully objected to.

55. [78]

    Harris never paid rent of board for his accommodation at Marshall Street. In his first affidavit Harris said nothing about making any contributions to household expenses or property outgoings. He also acknowledged that on three separate occasions his mother provided him with money towards the purchase of a car (although he suggested this was partly for her benefit as it allowed him to drive her around as well as using the car for himself).

56. [79]

    In his fourth affidavit, Harris expanded on the assistance that he had provided to his mother. He said that the assistance included undertaking all of the household chores, including cleaning, laundry, grocery shopping, etc. In the same paragraph he said that he “bore the majority of” these chores.

57. [80]

    Harris also deposed that he made financial contributions to household expenses “including” groceries, utilities and maintenance costs. He estimated that he spent at least $100 per week. He also deposed that he oversaw repairs and upkeep of the property, arranging tradesman and on occasion undertaking work himself.

58. [81]

    In his first affidavit, Harris described himself as having moved in with his mother in 2001 to care for her. From about 2013, he was registered by Centrelink as her carer and drew a carer’s pension. This continued until she went into the nursing home. Later in the affidavit Harris described himself as caring full time for the deceased for the whole period that they lived together at Marshall Street.

59. [82]

    In his fourth affidavit Harris gave a more detailed description of his mother’s medical conditions and care needs. He described his mother as having “progressively” suffered from health problems which affected her independence and quality of life and that she became “increasingly” reliant on him for support.

60. [83]

    Harris deposed:

61. [84]

    Harris was cross-examined on the extent to which he really provided care to the deceased:

62. [85]

    Andrew did not agree that Harris engaged in the tasks he had enumerated in his affidavit. In his affidavit of 31 January 2025, Andrew deposed:

63. [86]

    In cross-examination, Andrew was asked about which responsibilities he was aware of Harris having, and he added:

64. [87]

    In his affidavits, Harris deposed that his mother had made frequent promises to him about being able to stay at Marshall Street. This evidence became more elaborate over time.

65. [88]

    In his first affidavit, Harris deposed:

66. [89]

    Later in the affidavit he deposed:

67. [90]

    Harris continued:

68. [91]

    In discussing his mother’s testamentary intentions, Harris also deposed:

69. [92]

    Harris deposed that he first became aware of the deceased’s 2012 will when he received a copy of it in January 2019. According to Andrew, all of the siblings were aware of the will at the time it was made. Harris, however, denied that this was so, at least in his case. He said he first learned of the will when his mother told him in December 2018 that she had been to sign a document with Mr Ronis. According to Harris, he surmised that the document might have been a will and rang Andrew to confirm this. In the following month, January 2019, Andrew provided him with a copy.

70. [93]

    In his fourth affidavit, Harris returned to the circumstances in which he had moved in with his mother. He deposed:

71. [94]

    Harris also deposed to representations which he claimed the deceased had made that he would be entitled to live in the Marshall Street property for the rest of his life. His evidence was:

72. [95]

    In the affidavit Harris further deposed that in reliance upon on his mother’s alleged representations that he would always “have the security of” living at Marshall Street, he had acted to his detriment. He identified the detriment as having included: spending “over 23 years” of being his mother’s full time live in carer, “to the exclusion of other paid employment and opportunities to earn income and save money”; refraining from taking steps to acquire his own home; contributing his pension and savings to the household; performing “extensive unpaid domestic labour” on the property; and foregoing personal relationships and opportunities as a result.

73. [96]

    Harris went on to say that among the personal opportunities he had forgone had been an opportunity to pursue marriage and a family of his own with Vanessa. He deposed that Vanessa asked him to commit to a relationship with her, but he felt unable to do so because of his responsibilities as his mother’s carer.

74. [97]

    Mario also gave evidence of statements made by the deceased about Harris living at Marshall Street. In an affidavit made in January last year, at the same time as Harris’ first affidavit, Mario deposed:

75. [98]

    Mario’s son George also gave evidence on this subject. In an affidavit made in January this year, at the same time as Harris’ fourth affidavit, George deposed:

76. [99]

    Maria and Andrew, on the other hand, denied that they ever heard any such promises being made. In her affidavit made in response to Harris, Maria deposed:

77. [100]

    In his affidavit in response to Harris, Andrew deposed:

78. [101]

    In cross-examination, Harris was asked about his initial decision to move in with his mother, and his affidavit account of his conversations with her at the time:

79. [102]

    Harris was not specifically asked about later promises by the deceased or statements to the family about him staying at Marshall Street. But later in the cross-examination, he was asked about what effect finding out about the terms of his mother’s 2012 will had had on him. He gave the following evidence:

80. [103]

    Counsel did specifically ask Mario about the statements from his mother about Harris staying at Marshall Street which appeared in his affidavit:

81. [104]

    George too was asked about the statements by the deceased recounted in his affidavit:

82. [105]

    When Andrew gave evidence he was cross-examined about the two birthday gatherings which had been the subject of Harris’ evidence and to which Andrew had responded in his affidavit. He maintained that he did not hear his mother make the statements alleged by Harris, but acknowledged (inevitably) that such statements might have been made when he was out of earshot. Counsel did not otherwise challenge his affidavit testimony on the subject.

83. [106]

    A conversation between Harris and his mother which took place at Hickson Gardens on 11 March 2022 assumed some importance in the case. In the end, it emerged that the conversation was recorded by Harris. In January this year the recording was given to an interpreter, Ms Francie Wilson, to produce an English version. Ms Wilson was not cross-examined.

84. [107]

    Ms Wilson is a Greek interpreter but not, it seems, an expert in the Greek Cypriot dialect. She explained:

85. [108]

    Ms Wilson’s transcript of the recording was:

86. [109]

    A year before, in his first affidavit, Harris had deposed to the following version of the conversation:

87. [110]

    In his fourth affidavit, made at about the same time as Ms Wilson produced her transcript of the recording, Harris gave a more comprehensive account of the conversation. He deposed:

88. [111]

    In cross-examination, Harris was asked about the statement he attributed to himself, in his January 2024 version of the conversation, that the Marshall Street property should be “for all of us” (the deceased’s children). He gave the following evidence:

89. [112]

    Later in the cross-examination, Harris was asked about the version of the conversation in this year’s affidavit and about Ms Wilson’s transcript. In his affidavit, Harris had the deceased saying, after reference to the existing will, “I’m going to change the will to leave everything to you”. He was cross-examined about the equivalent passage in Ms Wilson’s transcript ([108] above). Counsel put to him that the passage ended with his mother saying “I could give to you”. He gave the following evidence:

90. [113]

    It was originally agreed between Mr Ronis and the deceased that the interest rate would be 7% per annum. It seems that the loan was treated as one at call and no regular loan repayments, or interest payments, were made.

91. [114]

    Mr Ronis deposed that in October and November 2022 he was approached by Harris who asked for money by way of repayment. In each case Harris explained the request by saying that his mother needed the money. Mr Ronis made two cash payments, one for $1,000 and one for $10,000. In each case Harris signed a receipt purportedly on his mother’s behalf.

92. [115]

    At the time the deceased died in June 2023 Mr Ronis was overseas and his business affairs were being looked after by his son George. A few weeks after the deceased’s death, Andrew called George and asked for him to make some money available from the loan moneys to pay for funeral expenses. A few days later George transferred $5,235 to Andrew.

93. [116]

    About two weeks later, on 10 July, Harris visited George at the Ronis Real Estate office and asked for the rest of the loan moneys to be paid out. George calculated the amount of interest from the inception of the loan as being about $16,000. Five days later, on 15 July, he paid Harris the sum of $31,554 in cash. This took into account the sum of $5,325 paid to Andrew a few weeks before. But George was unaware of the payments to Harris the previous year and as a result there was an overpayment of $11,000.

94. [117]

    Harris first addressed this issue in an affidavit made on 3 February this year, after it had been raised by Andrew in one of his affidavits. Harris did not deny receiving the three cash payments totalling $42,554 from the Ronises. But he denied misappropriating those monies.

95. [118]

    Harris’ explanation for the first payment was that he wished to borrow $1,000 from Andrew and Andrew referred him to Mr Ronis to get the money. The second payment of $10,000 was money which Andrew had requested for himself. Harris said that he collected the money and took it to Marshall Street where it was collected soon after by Andrew. Similarly, he deposed that he collected the $31,554 in July the following year at Andrew’s request and the money was soon after collected from him by Andrew.

96. [119]

    The Ronises’ affidavits were then filed and Harris responded to them in a further affidavit made on 2 May. He denied Mr Ronis’ version of the conversation in November 2022 and George Ronis’ version of the conversation in July 2023.

97. [120]

    Harris also gave a different explanation for the $1,000 which he collected in October 2022. He deposed:

98. [121]

    Harris was cross-examined on this issue but adhered to his evidence.

99. [122]

    Andrew denied that he ever asked Harris to collect any money from Mr Ronis. He maintained that denial in cross-examination.

100. [123]

     Andrew put forward his own circumstances as a ground for resisting Harris’ application, at least so far as it might affect the provision made for him in the will.

101. [124]

     Andrew’s main work has been with security firms handling cash. He described himself as starting as a “coin processor”. He began this work in 1997 and continued until 2003 when he opened a takeaway food store with his brother-in-law. The business was not successful and in 2005 Andrew resumed work as a coin room supervisor on a part-time basis.

102. [125]

     Eventually the business failed. Andrew and his wife Maria defaulted on their home loan as a result and were both bankrupted in 2008. They lost their home and since then they have lived with their son George. They do not pay rent although Maria occasionally makes payments towards household bills and utilities.

103. [126]

     Andrew continued to work as a coin room supervisor through until 2013 when he gave that employment up again and spent two years working in a business being operated by Maria. In 2015 he returned to security work and worked as a casual coin processor. This continued until he was hospitalised in 2018 with an infection in his leg. The infection led to major surgery on his leg which resulted in him spending nine months in hospital and being off work for about two years.

104. [127]

     Andrew deposed that he resumed casual work as a coin processor in about 2020 but ceased work in January last year when he was hospitalised for treatment on an ulcer on his right foot. Again this resulted in a major operation and a significant period of convalescence.

105. [128]

     Andrew deposed that he has type-2 diabetes as well as ulcerated feet. He also suffers from pins and needles in his feet which prevent him from sleeping. He has had special shoes made to accommodate the problems with his legs and feet. His work as a coin processor involved him having to stand all day, and he considered it unlikely that he could undertake this work in future.

106. [129]

     Andrew deposed that he owned a car worth $35,000 and had $3,000 in his bank account (in addition, he deposed that he was owed $5,000 for testamentary expenses from the deceased’s estate). He has superannuation of $16,000 and no other assets of any significance.

107. [130]

     Andrew’s wife Maria is about five years younger than he is. According to Andrew’s affidavit she was working as a sales representative on commission, earning $3,500 per week after tax. She had a car worth $85,000 but owed $44,000 on it. She had $10,000 in her bank account and was owed $8,000 from the deceased’s estate. Andrew deposed that he believed she had $24,000 in superannuation but owned no property or other assets of significance.

108. [131]

     At the time of the affidavit, the two of them were effectively living on her earnings.

109. [132]

     There was some evidence before me of the cost of providing accommodation for Harris in the future. The report relevantly put the median cost to purchase a one to two bedroom apartment in Bankstown at $539,750 and the rental cost for such a unit as $750 per week.

110. [133]

     Harris also deposed in his final affidavit to the results of enquiries he had made as at early May this year:

111. [134]

     Harris was cross-examined about why he asserted that a property in Bankstown was necessary:

112. [135]

     Counsel for Andrew also took Harris to some of the property search results annexed to his affidavit. The following cross-examination ensued:

113. [136]

     When the deceased and Harris moved to the Marshall Street property: Initially, counsel for Harris invited me to accept his evidence that he and the deceased moved to the Marshall Street property in 2001. But he eventually accepted that, not having cross-examined Maria on her contrary evidence (or Andrew for that matter), it was not open to him to ask me to reject her testimony that the move occurred in 2003.

114. [137]

     Of itself, this is not an issue of any great significance in resolving Harris’ claim. And a mistake of two years would not usually be surprising. But Harris made a special point of insisting that he could remember that the move happened in 2001. Accepting Maria’s version of events necessarily means rejecting the affirmative evidence from Harris on this question. Even if his evidence was not consciously false, the fact that Harris got this wrong says little for his reliability as a witness.

115. [138]

     Tiling work done for George: The same comment applies to the conflict of evidence between Andrew’s son George and Harris concerning the tiling work. Counsel not having cross-examined George, I have no alternative but to accept his evidence on this question.

116. [139]

     Again, this also means that I must reject Harris’ denial. It seems unlikely to have been the sort of thing which Harris could have forgotten about. The outcome is at best unfavourable for his reliability as a witness.

117. [140]

     Repayments of Ronis loan: The resolution of this factual issue is a straight question of resolving the conflict between Harris and Andrew. I prefer Andrew’s evidence on this point, for the following reasons.

     1. (1)

        The Ronises were not required for cross-examination. I must therefore accept their versions of the conversations with Harris in October/November 2022 and July 2023.

     2. (2)

        It is I think significant that Harris’ first explanation for the $1,000 which he received in October 2022 was that it was a loan to him. It is easy to imagine that Harris might have been in need of money for gambling and hit upon the money held by Mr Ronis as a source. He may initially have intended, or hoped, to be able to repay. Although Harris later changed his story, he gave no explanation for why how he came to give his initial account if it was incorrect.

     3. (3)

        Harris’ later explanation for the $1,000 receipt is highly implausible. Harris says that after collecting the money from Mr Ronis he took the money “back” to his mother and was then told by her to spend the money on the house. By the time the conversation happened, the deceased was living in the Yagoona nursing home. Leaving aside the questions about her mental capacity (she had suffered her stroke six months beforehand), what was the point of taking the money to her at all?

     4. (4)

        Harris’ version of the conversation with Mr Ronis at the time of the $10,000 receipt in November 2022 is different from that of Mr Ronis. Mr Ronis’ evidence was that Harris represented that the money was needed for his mother. Harris is most unlikely to have said that if he had been asked to collect the money for Andrew as he claims.

     5. (5)

        It is also implausible to suppose that Andrew would have asked Harris to collect the money on his behalf. If Andrew wished to obtain the money for the estate he could readily have collected it himself. If he was planning to misappropriate it, as Harris alleges, the last thing he would have done would have been to use Harris as a go-between.

     6. (6)

        I found Andrew to be a generally credible witness. He was not demonstrated to be wrong on any significant point. In cross-examination counsel began a line of questioning on a collateral matter for the purpose of attacking Andrew’s credit but Andrew’s responses were straightforward and believable, and counsel abandoned the challenge. There is no evidence whatever to support the allegation that Andrew collected his mother’s money and took it for himself.

     7. (7)

        On the other hand, there were clear and demonstrated shortcomings in Harris’ evidence. Where it is his word against Andrew’s I must prefer Andrew.

118. [141]

     Again, my rejection of Harris’ testimony on this point has adverse implications for his credibility. I have found that he told a false story, and it seems impossible that that could have been the product of an honest mistake.

119. [142]

     Care provided by Harris to the deceased: On Harris’ own evidence, it is clear that his claims in his first affidavit to having provided care for his mother for more than 20 years, on a fulltime basis, were grossly exaggerated. There is no reason to doubt that Harris did provide care to his mother of the types which he described. But that was long after Harris had moved into Marshall Street with her. At least for a decade or so after they moved in together, she seems to have had little if any need for care, although I do not doubt that she enjoyed and benefitted from Harris’ companionship during this period.

120. [143]

     Even from, say, 2015 onwards, I do not accept that Harris was caring fulltime for his mother as he claimed. On Harris’ own evidence, there were periods of intense gambling activity when he could not have been doing so. There is also Andrew’s evidence, which was not contested, that on occasions when he visited (and such visits took place once a week) Harris was absent, or at least, stayed in his room. He never saw Harris providing any help.

121. [144]

     In this regard, I also think that the omissions from Harris’ account of events are significant. Although Harris mentioned in passing, when describing the work he was doing, that carers were involved, he did expressly volunteer this, and he presented no evidence about how much professional care the deceased received over the last five years or so of her life. The evidence from Andrew that the deceased was placed in a nursing home as a result from advice from her doctors that she could no longer be cared for at home suggests that the in-home care provided to her by professionals may have been significant (again, this evidence was not contested).

122. [145]

     Counsel for Harris emphasised that Andrew himself had conceded that Harris did provide care for the deceased, at least during her final years of living at Marshall Street. But that is not in dispute. The question is, how much care was provided by Harris. On that question I do not have precise enough evidence from him, or from others, which allow me to make any assessment. I think the list of tasks which he undertook must be understood as a list of tasks which were undertaken from time to time, not necessarily every day and certainly not all day every day. It is impossible to say any more than that.

123. [146]

     The evidence from Harris is self-serving and its exaggerated nature makes me somewhat sceptical of it, together with the questions over Harris’ reliability generally.

124. [147]

     Financial contributions by Harris: I am similarly sceptical of Harris’ claimed financial contributions. In the end, it is clear that Harris did not undertake all of the renovation and other works at the property. At least some of the works were undertaken by tradespeople, and were paid for by the deceased. Harris’ claim to have built the extension at the rear of the house was left in a contested state on the evidence and appears to have dated from long ago. I do not think it is possible to make any definitive findings about the degree of works undertaken by Harris or the financial benefit to the deceased, if any, from those works.

125. [148]

     I see no reason to question Harris’ evidence that he contributed to household expenses such as food, but that does not necessarily mean that I should accept his estimate of $100 per week. More importantly, I have not been convinced by the assertions made in the fourth affidavit that he paid for property outgoings and utility charges. Certainly, by 2023-2024 he was not doing so.

126. [149]

     Again, I am unable to make any concrete finding as to financial benefits that Harris may have provided to the deceased. On the other hand, Harris himself concedes that he never paid rental board and that his mother paid for the purchase of three cars for him (admittedly a very modest value). I am unable to find that on balance Harris made any significant contribution to defraying the expenses which the deceased would have incurred had she been living on her own.

127. [150]

     Deceased’s testamentary intentions: Harris’ testimony about Andrew taking the deceased to a solicitor's office to make her 2012 will seemed to carry the innuendo that Andrew might have directed or influenced the will’s content. But Harris’ case contained no evidence to support that idea. No-one suggested that the deceased's mental state in 2012 was such that she was liable to be manipulated. There is no reason not to accept the 2012 will as an authentic expression of her informed wishes at the time.

128. [151]

     On Harris’ case, however, the deceased’s views later changed. The conversation at Hixson Gardens in March 2022 was relied upon as direct evidence of that change.

129. [152]

     In his written closing submissions, counsel for Andrew appeared to be developing an argument, based on the medical records of the deceased which are in evidence, that by March 2022 the deceased's cognitive capacities had declined to the point that she had lost capacity. But counsel for Harris complained about the lack of an express medical opinion to that effect and counsel for Andrew took the point no further.

130. [153]

     Counsel for Harris was of course correct in saying that no medical report on the deceased’s capacity was obtained for the purpose of these proceedings. But on Harris’ own evidence the deceased became forgetful, and her behaviour changed. The diagnosis of dementia is also recorded in the deceased's medical records which were tendered without objection.

131. [154]

     The diagnosis was of “Lewy body dementia”. I think that I can take judicial notice of the following description of that condition from John D. Firth, Christopher P. Conlon, Timothy M. Cox, Oxford Textbook of Medicine (6th ed, 2020, Oxford University Press):

132. [155]

     The transcript of the recording itself also raises some questions about the deceased’s cognitive abilities at the time. It is disjointed and incoherent in places. This may have been influenced by the difficulties which Ms Wilson experienced in undertaking the translation, but in the end the transcript is the only objective evidence to which the Court was taken.

133. [156]

     It is notable that in the transcript both the deceased and Harris refer to Andrew as having money (and therefore not needing anything from the estate), whereas in fact that was not the case. There is, however, express mention of Andrew's wife Maria earning good money, which was true, so maybe that was all that was meant.

134. [157]

     Harris’ affidavit versions of the conversation are also notable. The version in the fifth affidavit appears to have been prepared from the recording, but the fragmentary nature of the transcript version is not brought out. Instead the language has been rationalised, in particular with frequent references to the deceased’s will rather than references to title deeds and ownership which appear in the transcript.

135. [158]

     The earliest version of the conversation provided by Harris, in his first affidavit, is even more notable. Harris reports the deceased making an express acknowledgement of the “great sacrifices” Harris has made for her and an express undertaking to leave the house to Harris. It is nothing like the actual transcript.

136. [159]

     Despite its problems, the transcript does show the deceased complaining about being neglected by her other children and being happy with Harris for visiting her. At one point the deceased seems to say that the house is already Harris’, but at another point she says that she “could” give it to him. Harris responds by saying (although he does not use the term “will”) that the house is in all the children’s names, but the deceased does not respond, and the conversation ends on an inconclusive note. The deceased never did change her will, or even, so far as the evidence goes, make an attempt to do so.

137. [160]

     To the extent that in the recording the deceased expressed views about the extent to which her children deserved to benefit from her estate, it is unclear to what extent those views were based on the deceased’s own knowledge or might have come from Harris (for example, Andrew’s financial position). Furthermore, the deceased’s capacity to make fair testamentary judgments was at least doubtful. In my opinion the conversation is of little value for the purposes of resolving the issues in this case. And again, in his affidavit evidence, Harris has tried to make more of it than was warranted by its actual content.

138. [161]

     Alleged promises of life interest: I come now to the factual issue on which most time was spent by counsel. Counsel for Harris urged me to accept his evidence that his mother made regular promises to him that he would be able to stay in the Marshall Street property for us long as he lived, upon which Harris relied to his detriment. Counsel referred in some detail to the cross-examination on various paragraphs of Harris’ affidavits. The suggestion was that Harris’ evidence on this point had not been challenged, or at least squarely challenged. Counsel invoked the rule in Browne v Dunn (1893) 6 R. 67.

139. [162]

     For his part, counsel for Andrew submitted that I would not be satisfied that promises in these terms were made, or that Harris relied upon them to his detriment. So far as the actual making of the promises was concerned, counsel sounded two well-known cautionary notes. The first was that the deceased is no longer around to contradict Harris’ account of their conversations Plunkett v Bull (1915) 19 CLR 544 at 549. The second is that the proof of oral representations by witness testimony is beset by difficulties, which include the ordinary limitations on human recollection, the need to distinguish between subtle variations of language, and often a tendency to reconstruct a narrative of events which may be influenced by conscious or unconscious perceptions of self-interest (Watson v Foxman (1995) 49 NSWLR 315 at 317-318).

140. [163]

     I think Harris’ claim that his mother promised him that he would have a life tenure at Marshall Street at or soon after the time that they moved there is highly implausible. At the time the deceased was 64 and apparently in good health. Harris was only 34. He was working age, and although his marriage had broken up, it might reasonably have been expected that he form another relationship and establish a new household of his own. Any consideration of what housing he would need for his retirement was decades away.

141. [164]

     Harris himself in his first affidavit deposed that when he moved in he had applied for Housing Commission accommodation. This is somewhat surprising. At the time Harris appears to have been able bodied and fit for work. It is far from clear whether he would have qualified for taxpayer funded accommodation. But leaving that one side, it is clear from this testimony that both Harris and his siblings believed the arrangement to be tentative.

142. [165]

     The sort of conversations alleged by Harris are really only plausible at a much later point, once the deceased’s health began to fail and it had become clearer that Harris was unlikely to establish a family and household of his own. Harris himself stated at one point in his cross-examination that the promises came later. As will be seen, counsel for Harris ultimately in final submissions suggested that the “promissory” case was really based on events after about 2015.

143. [166]

     There is no reason to doubt that the deceased was unwilling to go into a nursing home and wished to live in her own house for as long as possible. Nor is there any reason to doubt that the deceased enjoyed and appreciated Harris’ company and encouraged him to stay with her. Many of the conversations reported by Harris in his testimony contain these elements. They are plausible and may be accepted.

144. [167]

     It may also readily be imagined that the deceased could on occasion have said to other members of the family words to the effect that Harris was welcome to stay with her. This is a particularly likely thing for the deceased to have said if she perceived some criticism from her other children about Harris living rent-free in her house.

145. [168]

     But the question in the present case is whether the deceased went further and promised Harris that he would be entitled to live at the house to live in the house, rent-free, for the rest of his life, even if the deceased were forced to relocate to a nursing home, and even after her eventual death. There might only be a subtle difference in language between such a promise and a promise that Harris could live rent-free with the deceased for as long as he wanted to, and much might depend upon the context. For this reason, the Watson v Foxman point taken by counsel for Andrew is of particular force in the present case.

146. [169]

     Harris’ affidavit evidence illustrates some of the problems. It includes numerous statements which do not go beyond saying that Harris was welcome to stay with the deceased for as long as he wanted. Some statements which go, or may go, further are reported, but often lack context. The alleged announcements to the rest of the family only appear in Harris’ fourth affidavit, which was filed just before the trial was originally scheduled to begin.

147. [170]

     Harris’ evidence about his mother's testamentary intentions is also difficult to reconcile with what can be gleaned from other sources.

     1. (1)

        The evidentiary dispute between Andrew and Harris about whether Harris knew of the terms of the 2012 will at the time (and presumably did not object) is unresolved. But there is nothing to suggest that the deceased would have been unaware of the will’s contents, at least until she became afflicted with forgetfulness. This makes it questionable whether the deceased would really have said to Harris in “2015 or 2016” that she had been told by her husband to ensure that she made provision for a home for Harris.

     2. (2)

        It is also difficult to accept that the deceased would have told Harris that she intended to change the will or that she had told Harris’ siblings that she was providing for him. The fact is that the deceased never did change her will after 2012. It was not suggested to Andrew that he had been told about a change being made to favour Harris, much less that he agreed with it.

     3. (3)

        Of course, it is no part of Harris’ case that in the years leading up to her admission to Hixson Gardens in 2021 the deceased would have lacked the capacity to make a new will. Any such statement would have undermined his reliance upon promises supposedly being made by her at that time.

148. [171]

     Another relevant factor is the evidence which Harris gave about the meeting between the siblings at which it was decided that the deceased would need to go into a nursing home. Harris does not in his affidavit suggest that he opposed the consensus which eventually emerged, namely that he should be allowed to stay for a period of up to a year, but no more, while steps to be taken to sell the property and divide the proceeds. In particular, he gave no evidence of having protested that his mother had promised him a life interest.

149. [172]

     There is also the difficulty of reconciling Harris’ testimony with the conversation at Hixson Gardens in March 2022. The recording confirms that by the time the conversation took place Harris was aware of the terms of his mother's will, and also testimony that Andrew was involved in its preparation. But there is no mention in the conversation of the promises which the deceased had allegedly already made to ensure that Harris would have the house. The deceased’s complaint seems more focused on (alleged) neglect since she had been in the nursing home.

150. [173]

     Then there is the uncontested evidence of Maria and Andrew that neither of them could recall promises to Harris having been made by the deceased at the family gatherings described by Harris. Counsel for Harris pointed out that this evidence did not exclude the possibility that such promises had been made on those occasions but for whatever reason Andrew and Maria were temporarily out of earshot and did not hear them being made. One problem with counsel’s point is that Harris in his affidavit ([94] above) specifically referred to an occasion where Andrew was said to have been present.

151. [174]

     But there is a more fundamental problem. The whole thrust of Harris’ evidence was that not only did his mother make promises to him, but she did so openly, and repeatedly, within the family. If that were true, Andrew and Maria would be expected to have known about it. Their uncontested denials do seriously undermine Harris’ claims.

152. [175]

     This brings me to the testimony of Mario and his son George concerning statements made by the deceased about Harris staying at Marshall Street. Counsel for Harris submitted that the challenge made to Mario’s evidence in cross-examination was limited. All that was put to him was that no express statement was made by the deceased that she would leave the Marshall Street property to Harris. The actual making of the statements as reported in his affidavit was not challenged.

153. [176]

     Mario did accept that the deceased did not in terms say that she was leaving the house to Harris in the will. But counsel submitted that the thrust of Harris’ case was that the deceased had promised that he would be able to stay in the house for the rest of his life. It was not necessary to leave the property to Harris to achieve this. Mario’s concession did not, counsel submitted, go far enough. Counsel made similar submissions concerning George’s cross-examination.

154. [177]

     The statements reported by Mario in his affidavit were broadly expressed and lacking in context. Taken on their own, they do not convey, or at least clearly convey, any promise of tenure after the deceased’s death (any such promise would also appear to have been inconsistent with the position taken by Mario that Harris should only be permitted to stay for twelve months after the deceased went into the nursing home).

155. [178]

     In his short time in the witness box, Mario did not impress me as a witness. It was difficult to get him to focus on the questions and answer them directly. But one important piece of evidence he did give was that the statements he was referring to had been made after the deceased had left Marshall Street for Hixson Gardens. This was contrary to what he said about such statements being made regularly over the years, right back to when she moved back into Marshall Street.

156. [179]

     In this context I think the criticism of the cross-examination was unjustified. A lawyer would of course recognise that there would be other ways in which tenure could have been assured for Harris than by leaving him the property in the will. He could have been left a life estate, or a trust could have been established for him, or he could have been granted a rent-free lease. But it is not at all likely that any of the parties to the conversations would have been thinking in that level of legal detail. Harris himself claimed that some of the promises made by his mother had been made in terms of leaving him the property.

157. [180]

     Mario’s affidavit evidence did little if anything to corroborate Harris’ case. Furthermore, I think the concession he made does undermine any suggestion that Harris was promised some form of tenure of the house after his mother died.

158. [181]

     Similar comments apply to George’s evidence. His affidavit did include one statement which tends to suggest tenure (“I want him to have the house”). But again, no context was provided. George also appeared more focussed in cross-examination than his father, but again he conceded that there was no promise to leave the house to Harris. I think the result is effectively the same.

159. [182]

     This brings me to Harris’ cross-examination and the rule in Brown v Dunne. It is of course important to remember that the rule does not affect the admission of evidence. All it does is limit the submissions which the Court may be prepared to entertain about the findings to be made on that evidence. Furthermore, the submission in question will only be impermissible if it involves some unfairness to the party calling the witness as a result of the conduct of the cross-examination of that witness. The rule does not prevent submissions which invite the court not to accept a witness’s evidence because of conflicting evidence given by another witness called by the same party, or because of incongruities or absurdities which are obvious.

160. [183]

     A further point follows. It is always possible to avoid the effect of the rule by obtaining leave to recall the witness so as to put the allegedly omitted proposition squarely to the witness and obtain the witness’ response to it.

161. [184]

     Of course that may not be practicable, or if it is, it may result in delay or additional expense which is not justified. But in general, if the failure to ask the question was an oversight rather than deliberate forensic choice, and the witness can be recalled without undue difficulty, there may be much to be said for permitting for the cross-examination so that the submissions which the cross-examining party wishes to make can be dealt with on their merits. For what it is worth, when I suggested to counsel for Harris in the course of closing submissions that his client could be recalled to the witness box, he rejected the idea out of hand.

162. [185]

     In my view, the submissions by counsel for Andrew which invited me not to accept Harris’ evidence concerning the alleged promises were not unfair in the context of the cross examination as a whole. Harris’ credit was squarely in issue: he was being accused of having misappropriated monies from his mother and from her estate. It was also clear that his testimony in support of his claim was under challenge.

163. [186]

     In addressing each of the individual alleged promises counsel could no doubt have gone further. Counsel could have specifically put alternative possible formulations of what the deceased said, or more explicitly challenged Harris’ purported recollections of the relevant conversations one by one.

164. [187]

     But in my opinion counsel did enough to be entitled to put that the Court should not accept Harris’ evidence on the point. There were also ample other grounds for the submission, based on in inherent unlikelihood and what was said by other witnesses, upon which counsel could rely without offending the rule in Browne v Dunn.

165. [188]

     Taking all of the evidence together, I accept that the deceased asked Harris to share the Marshall Street property with her when she moved back there in 2003, and continued thereafter to tell him that he was welcome to stay there rent-free with her for as long as he liked. But I am not satisfied that she went further and made some sort of promise to him of tenure for his lifetime.

166. [189]

     Nor was Harris’ evidence of detriment based on reliance on the alleged promises very persuasive.

167. [190]

     In terms of relationships forgone, the only evidence given by Harris concerned the breakup of his relationship with Vanessa. Although Vanessa appears to remain on reasonable terms with Harris, she was not called to corroborate his evidence. In any event, on Harris’ own account, the relationship broke up in 2010 which was well before the relevant promises of tenure were allegedly made, and well before the decline in the deceased's health which increased the care burden on Harris.

168. [191]

     Likewise, the assertion of financial detriment is weak. I have already found that the arrangement with his mother did not impose any significant financial burden on Harris, and may indeed have worked to his financial advantage. There is no evidence that he could have afforded to rent or buy a home for himself.

169. [192]

     Harris’ evidence that he was diligently looking for work while drawing unemployment benefits from 2003 onwards, but was unable to find it, was, I thought, unpersuasive. As already mentioned, I must accept that Harris undertook tiling work for Andrew’s son George in 2019. It follows that he must have been fit for, and had time for, such work.

170. [193]

     On the evidence, it seems that Harris’ withdrawal from the labour market was voluntary, and had taken place well before his mother's health declined. Presumably this was due to his gambling habit. Drawing a carer's pension seems to have been a matter of finding a source of Centrelink benefits to fund the continuation of a domestic arrangement which had already been established, rather than a change forced on Harris.

171. [194]

     I am not satisfied that, even if promises of some form of tenure at Marshall Street were made to Harris by the deceased, he suffered any detriment as a result of acting on them.

Family provision application

1. [195]

   There was no dispute between the parties that Harris was eligible to make a claim for family provision: SA s 57(1)(c). The issues for determination were:

   1. (1)

      whether the one-fifth share of the estate which Harris is to receive in the deceased’s will falls short of being adequate provision for his “proper” maintenance or advancement for the purposes of SA s 59(1); and

   2. (2)

      if so, what further provision, if any, should be made in his favour under SA s 59(2).

2. [196]

   Counsel for Harris relied on the well-known statement by Brereton J, speaking for the Court of Appeal, in Alexander v Jansson [2010] NSWCA 176 at [18] (citations omitted):

3. [197]

   In response, counsel for Andrew submitted that this was a case in which the terms of the will are of considerable evidentiary weight in deciding whether the provision for Harris is inadequate. Counsel cited the statement by White J in Slack v Rogan [2013] NSWSC 522 at [127] (citations omitted):

4. [198]

   Counsel submitted that this reasoning was applicable to the present case. I think there is force in that submission.

5. [199]

   When the will was made, Harris had been living with the deceased for almost ten years. He had not managed to achieve any financial self-sufficiency, and it must have been obvious to the deceased, with Harris’ gambling and his withdrawal from the labour market, that he was unlikely ever to do so. Yet the deceased evidently felt that there was no good reason to give Harris a larger share of her estate than her other children. As already noted, there was no suggestion that the deceased was in any way imposed upon in making this judgment.

6. [200]

   In the end, I do not think that counsel for Harris contested this. Counsel did not suggest that if the deceased had died immediately after making the 2012 will that Harris would have had any legitimate claim to more than an equal share of the estate. Rather, the case advanced by counsel was that the position had changed after the will was made. The deceased had become dependent upon Harris; Harris had felt obliged to devote himself to caring for her; and as a result he had missed out on life opportunities and financial opportunities which could not now be recaptured.

7. [201]

   The adequacy of the provision made for Harris in the will is to be judged by the circumstances which exist at the date of the hearing. Counsel for Harris submitted that, having regard to Harris’ parlous financial position, being essentially destitute, proper provision involved giving him a home in which to live, rent free, for the rest of his life.

8. [202]

   Counsel’s primary submission was that this should be achieved by means of a Crisp order (see J1 [52]). Alternatively, Harris should receive a cash legacy sufficient to pay for rented accommodation for at least the rest of his current life expectancy (said to be 15 years).

9. [203]

   I do not doubt that Harris provided care for the deceased while he lived with her, and for which she was grateful. It may also have deferred the time at which she had to leave her house and go into a nursing home. But Harris also derived financial advantages from not having to pay rent, and from the other monetary support the deceased gave him. In net terms he did not contribute to the overall value of her estate.

10. [204]

    And for reasons I have given I do not accept that any promises of tenure were made to Harris by the deceased. Nor do I accept that Harris could, or would, have been able to provide a home for himself if he had acted otherwise.

11. [205]

    Harris’ lack of savings and dependency on welfare for his income, considered on their own, do not make the provision made in his favour by the will inadequate for his proper maintenance or advancement. They result from choices Harris has made, particularly his indulgence in gambling, for which the deceased was in no way responsible.

12. [206]

    In assessing the propriety of the provision for Harris, it is also I think relevant that the deceased divided her estate equally between her children. Such testamentary schemes are common in cases such as the present. They reflect basic notions of justice (“equity is equality”) and filial autonomy. In my opinion the circumstances would need to be extraordinary before a division of this type would offend “community standards”.

13. [207]

    In the present case, making additional provision for Harris would lead to a very unequal outcome. He would get half the net estate or even more, leaving the deceased’s four other children to share whatever was left. The deceased would of course have been free to structure her will that way, but can it really be said that she had a moral duty to do so?

14. [208]

    Andrew’s case illustrates the problem in a stark way. Counsel submitted that he had stable and relatively comfortable living arrangements, but the fact remains that he is dependent upon his son George and has no security of tenure. His wife Maria is currently able to support him and in a sense, he is choosing not to work or go onto welfare. His “needs” may be, as counsel submitted, less than Harris’ “needs”. But why should be he be forced to continue to depend upon his wife or son, or upon welfare payments, and be deprived of his share of the deceased’s estate, just because Harris has failed to make adequate provision for himself over the last 25 years?

15. [209]

    For these reasons, I do not consider that Harris’ proper maintenance and advancement required the deceased to provide him with accommodation, rent-free, for the rest of his life.

16. [210]

    Both the deceased and Harris were happy to live together. It might be argued, however, that it would have been better for the deceased and Harris to have recognised that in the long run he would be dependent upon social housing, and to have acted earlier to get on the waiting list for it. If Harris has suffered any detriment from continuing to live with his mother at her request, it is that.

17. [211]

    Harris’ case, however, was not put this way. That may not be surprising because such a case faced a number of difficulties.

    1. (1)

       While Harris, now that he is on the disability pension, would presumably qualify for social housing, it is far from clear that he would have done so before 2023. Up until then, it would seem, he was fit and able to work but choosing not to do so.

    2. (2)

       Harris faced the prospect of moving out of the house from 2021. In the end he had almost four years to make his plans. He appears to have made little or no effort to obtain alternative housing until very late in the day.

    3. (3)

       A conclusion that Harris had suffered detriment of this type would not result in the further provision which Harris seeks, namely rent-free accommodation for life. It would only require a sufficient sum of money to cover the waiting period for social housing to become available. And there is no reason to think that the one-fifth share of the deceased’s estate would have been inadequate for this purpose.

18. [212]

    Had Harris’ claim not failed at the first stage, there would still have been further difficulties in awarding him the provision which he seeks. Two particular problems stand out. One is that the Crisp order which he seeks raise practical problems which have not been addressed. The other that there is a lack of evidence about the cost of the accommodation options which he is claiming.

19. [213]

    When these proceedings were commenced, the relief claimed on behalf of Harris was for an order that “provision” (not further specified) be made for Harris out of the deceased’s estate. At J1 [45]-[47], I said that this formulation was inadequate. Practice required the summons to set out the relief claimed in the form of the order or orders actually sought from the Court.

20. [214]

    The summons was later amended, but not in a way which solved the problem. Harris now seeks “a Crisp Order” obliging the estate to provide “suitable accommodation” to Harris or, in the alternative, “funds sufficient” to allow him to obtain “suitable accommodation on an ongoing basis”. Apparently by way of further alternative, the original bald prayer for “provision” from the deceased’s estate has been retained.

21. [215]

    In written submissions prior to the hearing in May, counsel for Andrew complained that Harris had not specified the precise terms of the relief which he was seeking. This prompted a response in the written submissions in reply by counsel for Harris. Counsel submitted (emphasis added):

22. [216]

    This formulation, which was expressly tentative in its wording, still left important questions unanswered. A central one was when the administration of the estate would be completed; that is, whether the “Crisp Order” was to have the effect of deferring the completion of administration, and the distribution of the residue, until Harris’ life interest had terminated, or the estate would instead be fully administered and some portion of it settled on a will trust, so that a distribution of residue could be made now. This distinction is of considerable practical importance, as is illustrated, for example, by Neal v Brown [2024] NSWSC 841.

23. [217]

    When confronted with this question, counsel for Harris said that the intent was for the final administration of the estate to be deferred, and any distributions of residue to be made, after Harris’ death. Counsel appeared to acknowledge that that meant that Harris’ siblings (or their heirs) would have to wait until then before they would receive anything.

24. [218]

    This in turn gave rise to further questions. Was Andrew to be required to continue to act as trustee for the next 20-25 years? (the answer apparently was yes). If so, was he to be remunerated? (No). Who was going to prepare the tax returns for the income which would be received (and presumably accumulated) in the meantime? (apparently, Andrew would pay, but would have an indemnity out of the estate income). Harris would be obliged to pay some of the expenses but not all of them, and in particular not for structural repairs. Presumably these would need to be paid for out of the estate (counsel confirmed it). And the result of this structure was that Harris would receive nothing out of the estate; how then was he to pay the costs ordered against him in the possession proceedings, or any liability he might be found to have with respect to the Ronis loan? (apparently he would go bankrupt and continue to enjoy the benefit of the trust in his favour, with the estate bearing the loss).

25. [219]

    Counsel’s answers to these questions were proffered tentatively. He submitted that they did not need to be finally determined at this stage of the proceedings. All that the Court needed to do was to find that a “Crisp order” should be made. What counsel characterised as “nuts and bolts” would be determined in negotiation with Andrew as executor and recorded in a formal order in due course. Dealing with them should be deferred until that point.

26. [220]

    I do not accept these submissions. I think they are wrong in principle as well as being contrary to proper practice.

27. [221]

    The starting point is that a successful application for provision takes effect as a codicil to the relevant will. It is of course open to an executor to make submissions as to the terms of any order which might be made. But ultimately it is the executor’s duty to give effect to any order made, not to lend assistance in formulating its terms. Nor is the Court’s responsibility to do so. It is a task for the plaintiff.

28. [222]

    Nor is it satisfactory to ask the Court to make some sort of general ruling on the plaintiff’s entitlement to provision, and defer the precise formulation of the order until afterwards. The Court cannot make a final order until the terms of the order are settled. In accordance with what I have already said in the possession proceedings, proper practice requires the plaintiff to specify the full terms of the order sought in the summons so that they are available to the executor well before trial.

29. [223]

    The present case illustrates the sort of problems which can otherwise arise. The full extent to which Harris sought to have the Court interfere with the testamentary provisions in favour of his siblings was only exposed in the course of final oral submissions. Serious injustice might have been occasioned to them if they had not been aware of what lay beneath the surface of the bland claim for “provision” stated in the summons.

30. [224]

    In the end, counsel for Harris fairly acknowledged the practical problems with his Crisp order proposal. He did maintain a claim for such an order, but only faintly. His circumspection was justified. I think such an order was out of the question in the present case.

31. [225]

    In the end, because I have concluded that Harris’ claim fails at the first step, no injustice arises so far as his siblings are concerned. But that does not mean that the point is unimportant. If Harris’ legal advisors had set out in advance to formulate the Crisp order they were seeking, as I think they should have, the difficulties with it might have been recognised earlier. Significant time and costs might have been saved for Harris as well as for the estate.

32. [226]

    I turn now to the second problem with the provision sought. This affected both the Crisp order and the alternative claim for a lump sum to cover Harris rental costs for the rest of his life.

33. [227]

    The problem was that in each case Mr Staltari’s evidence was based on a median figure for a one or two bedroom unit Bankstown. But in truth there was no reason why Harris had to live in that particular suburb. It was common ground that cheaper accommodation would be available in other suburbs of Sydney (or even outside Sydney). Nor was there any properly demonstrated need for Harris to be provided with a two bedroom unit.

34. [228]

    In a case such as this, one would expect the plaintiff’s legal representatives to identify the minimum requirements for the plaintiff’s alleged future accommodation needs and obtain valuation evidence canvassing the cheapest option within the relevant geographical area. In the present case that has not been done. Mr Staltari’s evidence was limited, artificially, to accommodation in Bankstown. The supplementary evidence from Harris canvassed other suburbs but was hardly comprehensive.

35. [229]

    When I raised this with counsel for Harris, he responded that this was the evidence before the Court. The implication was that the Court would simply have to do its best with what it had. Counsel noted that no evidence on the subject had been presented on behalf of Andrew.

36. [230]

    If this was meant to indicate that Andrew had some sort of responsibility to present evidence somewhere else where Harris could live which was cheaper, I disagree. It was Harris’ responsibility, not Andrew’s, to present evidence showing how Harris’ alleged needs could be accommodated at minimum reasonable cost. There was no justification for spending more on Harris’ accommodation when the funding from doing so had to come out of the pockets of his siblings.

37. [231]

    For these reasons, had I found that a further provision should be made for Harris in the form of a sum sufficient to cover rental of a property for him for the rest of his life, there would still have been a difficulty in making an order in his favour. I would have lacked the evidence to make a proper assessment of what the appropriate sum should be.

Conclusions

1. [232]

   I have concluded that:

   1. (1)

      the claim against Harris to recover monies received by him from Mr Ronis succeeds, and judgment should be entered against him in favour of Andrew as executor of the deceased’s estate in the sum of $42,554 plus interest;

   2. (2)

      Harris’ claim for family provision fails and should be dismissed.

2. [233]

   On 12 June, I issued to the parties a draft of a judgment to this point and invited them to address me on the form of the orders required to give effect to those conclusions, and costs. The hearing took place on 13 June. Interest calculations on the judgment to be entered against Harris were agreed. The parties, however, disagreed about costs.

Costs

1. [234]

   Counsel for Andrew sought an order that Harris, as the unsuccessful party, pay the costs of the proceedings. Costs were sought on an indemnity basis as a result of a formal offer of compromise made under the Rules on 8 July last year. The offer was for Harris to receive, in lieu of the one-fifth share of residue provided in the deceased’s will, a lump sum legacy of $301,000, plus an order for costs in his favour to be paid out of the deceased’s estate.

2. [235]

   Another letter of formal offer of compromise was made on 17 July. This provided for an increased lump sum legacy of $351,000.

3. [236]

   At the time these offers were made, the estate had not incurred the costs of the possession proceedings or the expenses of obtaining vacant possession of the property from Harris. The costs incurred in these proceedings would have been much less than they are now.

4. [237]

   Even so, the net value of the estate is unlikely to have exceeded $1.2 million. The first offer would have given Harris 20% more than the one-fifth share of the estate left to him in the will, together with costs. Counsel for Harris accepted that the offer was clearly more favourable than the eventual outcome of the proceedings from Harris’ point of view. The later offer was even more favourable.

5. [238]

   Counsel for Harris also accepted that the two offers were valid ones which complied with the terms of the Rules. UCPR r 42.15A therefore gives Andrew a prima facie entitlement to costs (on an indemnity basis from the date of the offer) unless the Court otherwise orders.

6. [239]

   Counsel for Harris submitted that the circumstances of the present case justified a departure from the prima facie rule of liability established by r 42.15A. These included the following.

   1. (1)

      Harris had been an eligible applicant.

   2. (2)

      The application had not been frivolous or vexatious. Having lived with his mother most of his adult life, Harris had a reasonable expectation for provision for accommodation in the will.

   3. (3)

      Owing to Harris’ desperate financial circumstances, a costs order would bear very harshly upon him. Given the liability for costs already incurred in the possession proceedings, and the liability with respect to the Ronis loan monies in this judgment, a costs order against him would certainly exceed any remaining entitlement he would have in the estate.

   4. (4)

      The power to award costs should not be exercised in a punitive fashion.

7. [240]

   Counsel referred me to the decision of Hallen AsJ in Harkness v Harkness (No 2) [2012] NSWSC 35. In that case, his Honour pointed the well-known statement by Gaudron J in Singer v Berghouse [1993] HCA 35:

8. [241]

   Hallen AsJ, however, observed:

9. [242]

   The present case has an additional feature which was not present in Harkness. It involves an offer of compromise creating a prima facie liability to pay costs (and on an indemnity basis) under r 42.15A. Counsel did not suggest that the rule applied with any lesser force in family provision proceedings; understandably so, as there would have been no textual basis for any such submission.

10. [243]

    As Harkness shows, the force of Gaudron J’s dictum in Singer v Berghouse has been attenuated by the subsequent course of authority. Any idea that there should be some special rule for family provision proceedings must be even more attenuated where specific costs rules based on settlement offers are involved, as in the present case.

11. [244]

    It may be accepted that the claim was not frivolous or vexatious. But the expectation behind it, that Harris should be provided with some special provision for accommodation at the expense of his siblings, has been rejected by the Court. And it has done so because of Harris’ failure to prove that promises were made to him, or that, even if they were, they resulted in financial detriment.

12. [245]

    The result is a harsh one for Harris, but is, I consider, required by the terms of the Rules. It cannot be regarded as punitive. There is no reason to depart from the entitlement created by r 42.15A. Harris will therefore be ordered to pay the costs of the proceedings, on an indemnity basis from the date prescribed by the rule.

Orders

1. [246]

   The orders of the Court are:

   1. (1)

      Order that there be judgment for the defendant against the plaintiff for monies had in received in the sum of $48,737, including $6,183 in interest.

   2. (2)

      Order that the plaintiff pay the defendant’s costs of the proceedings:

   3. (3)

      Order that the plaintiff’s judgment liability under order 1 and the plaintiff’s costs liability under order 2 be set off against the plaintiff’s share of the deceased’s estate.