Antov v Bokan (No 2)

BATHURST CJ: I agree with the orders proposed by Bell P and with his Honour’s reasons.

BELL P: The decision of Ward CJ in Eq (the primary judge) from which this appeal is brought sets out in comprehensive and meticulous detail the at times dramatic course of events in Australia, Macedonia and Croatia which underpinned the litigation between the appellant, Mr Vase Antov (Vase), the grandson of the late Ljubica Dimitrovska (the deceased) and his aunt, the first respondent, Lidija Bokan (Lidija) who was the deceased’s daughter. The deceased’s other daughter and Lidija’s step-sister, Ms Radmila Antova (Radmila) is the mother of Vase and is the second respondent in the appeal. For ease of reference, and with no disrespect, I will follow the convention of the primary judge in referring to the parties as Vase, Lidija and Radmila respectively.

The deceased died on 17 November 2014 and on 12 March 2015, Lidija obtained a grant of probate in respect of the deceased’s will which had been executed on 11 February 2009.

At issue in the proceedings below was Vase’s claim to be entitled to an unencumbered interest in property in Granville (the Granville property) which had been owned by the deceased and which was occupied by Vase (together with the deceased and Radmila) from approximately May 2010.

By amended statement of claim (ASOC), Vase sought a declaration that, in the events which had happened, Lidija (as executor of the deceased’s estate) held the Granville property upon constructive trust for him. He also sought an order that Lidija do all things and sign all documents necessary to transfer the unencumbered title of the Granville property to him. He further sought a declaration that, as executor of the estate, Lidija held the balance of the estate upon constructive trust for him.

Vase’s case was built upon the existence of two documents, a power of attorney (the Power of Attorney), referred to by the primary judge as the Macedonian Power of Attorney to distinguish it from an earlier Australian power of attorney that apparently had been revoked, and a document described as a Contract for a Gift, which was said to have been prepared on the deceased’s instructions by a lawyer, a Mr Zarko Dabeski (Mr Dabeski), in Macedonia in 2009.

The documents or, more correctly, the purported copies of these documents (for there was a major issue as to their authenticity) are dated 13 and 14 October 2009 respectively. The different dating of the purported copies of the documents assumed significance in the primary judge’s finding that the purported Contract for a Gift document was not authentic.

The primary judge described these two documents and the circumstances of their purported execution in [5] of her reasons as follows:

As will be explained below, the first time that Vase obtained a copy of the Contract for a Gift was July 2016. Lidija only learnt of the existence of the document shortly thereafter.

The two documents were both alleged in the ASOC to have given rise to representations in relation to the Granville property upon which Vase claims to have relied to his detriment so as to generate an entitlement to receive an unencumbered transfer of the Granville property “on the grounds of promissory estoppel”.

The representation said to have been contained in the Power of Attorney was that “upon the sale of the property at 49 Louis Street, Granville NSW [Vase] is entitled to full use of the proceeds of sale for his personal use and on his account and is entitled to deal with the money as his own private possession”. The representation said to have been contained in the “Contract for a Gift” was that the deceased “would gift to [Vase] her entire estate and her real estate property at 49 Louis Street, Granville; or she would make a will in which she devised to [Vase] the property at 49 Louis Street, Granville together with the balance of her estate.”

The ASOC pleaded that, in reliance upon these representations, from about early 2010, Vase carried out renovations and improvements to the Granville property and lived there with the deceased and Radmila from about May 2010 until the deceased’s death on 17 November 2014 during which period, it was alleged, he assisted the deceased with the costs of living.

It was also pleaded, in the alternative, that “in breach of the [alleged] representation” that the deceased “would make a will in which she devised to [Vase] the property at 49 Louis Street, Granville together with the balance of her estate”, the deceased failed to make a will to this effect and that “[i]n the premise” Lidija, as executor of the estate, holds the Granville property and the balance of the deceased’s estate on constructive trust for the plaintiffs. The basis upon which the constructive trust is alleged to have arisen was obscure.

Vase had lodged a caveat on the Granville property on 16 March 2010, purportedly based upon the Power of Attorney.

The authenticity of the two central documents upon which Vase’s case was built was put squarely in issue in the proceedings by Lidija. In addition to a challenge to the authenticity of the Power of Attorney and the Contract for a Gift, the circumstances in which, on Vase’s case, those documents were executed (if executed at all) was said, by way of cross-claim, to attract the equitable doctrines of undue influence and unconscionability.

The proceedings were heard over eight days. The primary judge dismissed the ASOC with costs, declared that the execution by the deceased of one or more copies of the document entitled Power of Attorney was procured by the undue influence and unconscionable conduct of Vase and was of no effect, and ordered Vase to pay Lidija’s costs of the cross-claim.

The detailed and meticulous fact finding of the primary judge to which I have already referred considers closely and carefully the at times conflicting and/or inconsistent and/or incomplete evidence in relation to the circumstances surrounding the execution of the Power of Attorney and the Contract for a Gift.

By way of summary, the primary judge concluded at [9]-[10] of her judgment (see also [456(20)]) that:

The primary judge also held (at [12]) that the circumstances in which the promissory estoppel claim was brought by Vase amounted to an abuse of process on his part, and that there was no issue estoppel precluding Lidija from raising that issue, although her Honour noted that it was not necessary to determine the matter on that basis. The circumstances to which her Honour referred (at [12]) were:

It should also be noted that the primary judge (at [13]), whilst expressing “real doubts” as to the capacity of the deceased to grant the Power of Attorney in favour of Vase as at 13 October 2009, was not satisfied that lack of capacity had been established on the limited medical evidence available.

Leave to amend the notice of appeal was granted at the outset of the hearing of the appeal.

Vase challenged the decision at first instance on the following grounds in his amended notice of appeal:

In oral submissions, Mr McGrath SC, who appeared on behalf of Vase, put primary and almost exclusive emphasis on the fifth of these grounds in support of a submission that Mr Dabeski’s evidence, which is the focus of that ground of appeal, was of central relevance to the question of authenticity of the Contract for a Gift, and submitted that her Honour’s refusal to permit his evidence to be given via audio-visual (video) link had consequences for, and rendered insecure, other important conclusions reached by the primary judge. He submitted that the decision not to permit the video link evidence was “unreasonable” or “plainly unjust” in the House v R sense (see House v R (1936) 55 CLR 499; [1936] HCA 40 (House v R)).

Because of the way in which the case was put orally, it is both appropriate and convenient first to deal with appeal ground five of the amended notice of appeal.

The primary judge heard and determined Vase’s application for the taking of Mr Dabeski’s evidence at the trial by video link on 27 February 2018, the application having been filed on 15 February 2018. That application noted that the matter had been fixed for hearing between 5 and 19 June 2018. The date proposed for the video link was 11 June 2018, almost four months after the hearing and delivery of judgment on the video link application.

The application for the taking of evidence by video link was supported by a short affidavit from Mr Oliveri, an Australian legal practitioner with carriage of the proceedings on behalf of Vase. That affidavit annexed a purported affidavit of Mr Dabeski of 13 December 2017 which comprised some 15 paragraphs. Mr Oliveri also stated that, since the filing of that affidavit, Mr Dabeski had advised that “he has declined [Vase’s] invitation to travel to Australia at [Vase’s] expense so as to make himself available for cross-examination”, and that Vase had no means of compelling the witness. Mr Oliveri referred to and attached medical evidence to the effect that Mr Dabeski had a phobia of flying. Contrary to what was said in Mr Oliveri’s affidavit, the medical evidence was not that Mr Dabeski “was unable to fly”. The terms of the medical evidence were as follows:

Mr Oliveri’s affidavit continued at paras 7-8:

The “allegations raised against the second plaintiff in the amended defence” included the non-admission of the authenticity of both the Power of Attorney and the Contract for a Gift, the denial of the deceased’s capacity to make either, and a denial that Vase could or did rely on the representation alleged in the statement of claim. (As a result of leave granted on 27 February 2018, the non-admission of authenticity in relation to the Power of Attorney and the Contract for a Gift was elevated to a denial of authenticity in the further amended defence filed on 2 March 2018).

Before turning to consider the primary judge’s reasons for refusing the application for a video link hearing, a number of observations should be made in relation to the purported affidavit of Mr Dabeski which was annexed to Mr Oliveri’s affidavit, and a purported translator’s affidavit in respect of Mr Dabeski’s affidavit.

First, Mr Dabeski’s purported affidavit is not witnessed. Instead, Mr Dabeski has signed both the English translation and the Macedonian version of the affidavit both as a deponent and witness. Secondly, neither version identified Mr Dabeski’s address, despite provision being made for that. Thirdly, although the affidavit purported to annex true copies of the Power of Attorney and the Contract for a Gift Agreement, no copy of the Power of Attorney was annexed. Fourthly, the Macedonian version of the affidavit did not specify a particular date in December 2017 on which it was executed, but there is handwritten on the English translation on both the cover page and first page the number “13” before December 2017. Fifthly, the translator’s affidavit was not witnessed. Sixthly, the translator’s affidavit was undated. Seventhly, the translator’s affidavit did not specify the date on which she met with Mr Dabeski for the purpose of translating his affidavit, even though the translator’s affidavit made provision for the insertion of those dates in paras 3, 4 and 5. Eighthly, para 7 of the translator’s affidavit read “Zarko Dabeski then signed her affidavit in my presence and in the presence.” This sentence refers to Mr Dabeski as “her” and is obviously incomplete, as it does not identify any witness in whose presence the affidavit was witnessed. Ninthly, the translator’s affidavit did not annex the Macedonian version of the affidavit which she claimed to have translated, or the English version of the affidavit which she attested to having translated.

The primary judge heard extensive argument in respect of the video link application on 27 February 2018. The application was opposed by Mr Heath who appeared for Lidija both before the primary judge on the application, at trial and on appeal. In his submissions, Mr Heath contended that it was not in the interests of justice and would be unfair to his client to permit the evidence to be given by video link. He made the point that the authenticity of the Power of Attorney and the Contract for a Gift had been in issue since the time the original defence had been filed.

In her ex tempore judgment, the primary judge commenced by noting the tortured background to the present application, noting the fact that the proceedings started their life as a family provision application in relation to the deceased’s estate in 2015.

Her Honour noted that the family provision proceedings had been settled, and that it was only following this that the present claim was brought by Vase by way of an amended summons (this was the irregular procedure which her Honour indicated she would have held to amount to an abuse of process: see [19] above.)

Her Honour then noted, at [3]-[4] of her ex tempore judgment, that:

Her Honour then outlined the gist of Mr Dabeski’s purported affidavit, noting that it went to the provision to him of instructions by the deceased and to his observations as to the deceased’s capacity when the Power of Attorney and the Contract for a Gift were executed. Her Honour noted the explanation proffered for the delay in the provision of evidence from Mr Dabeski, namely that it was due to the fact that it was only when the amended defence was filed and an actual undue influence claim raised, that it became relevant that Mr Dabeski had been instructed to prepare the disputed documents. Her Honour noted, correctly, that the plaintiff had been on notice as to the challenge to the authenticity of the documents for some time.

Her Honour also noted that there were a number of difficulties relating to the manner in which the evidence of Mr Dabeski proposed to be relied on had been prepared, and further noted the difficulty in relation to attempts to obtain the original versions of the Power of Attorney and the Contract for a Gift whose authenticity was challenged. As to the difficulties in relation to the affidavit of Mr Dabeski, the primary judge noted some of the formal deficiencies to which I have already referred in [30] above, together with deficiencies in the affidavit of the Macedonian interpreter who had purported to translate Mr Dabeski’s affidavit.

The primary judge then referred to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (Evidence (AVL) Act) which provides as follows:

The effect of s 5B of the Evidence (AVL) Act is that, whilst the court has a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party.

The primary judge referred to the evidence of Mr Oliveri which has been referred to at [26] above, but noted that the evidence in relation to Mr Dabeski’s phobia in respect of flying did not make clear for how long he had been treated for such a phobia. Her Honour also noted the lack of any explanation as to any steps that could be taken to facilitate Mr Dabeski’s travelling to Australia notwithstanding the phobia, by way of any form of medication.

In [10] of her ex tempore reasons, the primary judge summarised the competing arguments of the parties as follows:

In [11] of her ex tempore reasons, the primary judge observed that the issue as to the authenticity of the documents may well be able to be met by other witnesses whom she had been told had given affidavits and were intending to travel from Macedonia to Sydney to be cross-examined. These were Mr Mirče Danilov (Mr Danilov) and Ms Letka Kostovska (Ms Kostovska). As it turned out, Ms Kostovska did not attend the trial to give evidence, her absence was unexplained and the primary judge drew an adverse inference in her principal judgment: see at [433]. But the point of the primary judge’s reference at [11] of the judgment on the video link application was that Mr Dabeski was not the only witness who it was anticipated would or could give evidence as to the execution of the contested documents.

The essence of the primary judge’s reasoning on the video link application was set out in [12]-[15] of her ex tempore judgment as follows:

The primary judge also dealt with the unsuccessful video link application in respect of Mr Dabeski’s evidence in her principal judgment at [211]−[233]. Her Honour rehearsed the arguments that had been advanced on the hearing of the video link application on 27 February 2018. At [229]−[232] of the principal judgment, her Honour said:

Appeal Ground 5 (see [22] above) is formulated on the basis that the primary judge’s decision to refuse to receive Mr Dabeski’s evidence by video link was discretionary in nature. As noted at [23] above, Mr McGrath took the view that he needed to bring himself within the principles in House v R to challenge such a discretionary decision.

This ground of appeal is somewhat misconceived, in my view, insofar as it characterises the primary judge’s decision as one involving the exercise of discretion under the Uniform Civil Procedure Rules 2005 (NSW) r 31.3 (UCPR). True it is that UCPR r 31.3(1) provides that “[i]f the court so orders, evidence and submissions may be received by telephone, video link or other form of communication”. The primary judge’s decision, however, was dictated by the operation of s 5B(2)(c) of the Evidence (AVL) Act set out at [37] above, given her Honour’s finding that any exercise of discretion to direct that Mr Dabeski give evidence by video link would be unfair to Lidija: see the emphasised portions in her Honour’s ex tempore judgment set out at [42] above.

Her Honour’s decision was not, in truth, discretionary in nature. Rather, the assessment of unfairness involved a broad evaluative judgment of the kind referred to in Singer v Berghouse (1994) 181 CLR 201 at 210-212; [1994] HCA 40 (Singer). Because of the finding as to unfairness, the primary judge did not reach the stage where her discretion to direct video link evidence was enlivened. Indeed, she was precluded from exercising any discretion by reason of s 5B(2)(c) of the Evidence (AVL) Act.

Notwithstanding this matter, the broad evaluative nature of the finding of unfairness had implications for the standard of appellate review. As Singer (at 212) makes plain, a challenge to such a finding involves the same high hurdles that must be overcome as in a challenge to a discretionary decision.

Because of the misconception that I have referred to, the appellant’s written and oral submissions were not directed to a challenge to the primary judge’s finding of unfairness. Rather, they proceeded on the basis that the discretion had been exercised one way, but that it should have been exercised in another way, and that the failure to do so was “unreasonable” and “plainly unjust”, to pick up some of the language in House v R at 505. The submissions did not focus on the effect of the proposed course on Lidija, and the fairness or otherwise to her of that approach. The closest the submissions came to this, albeit in the context of a challenge to the exercise of discretion, was a single sentence: “[t]he evidence [of Mr Dabeski] was unlikely to be lengthy or to involve more than a few documents.”

The assertion that the evidence was unlikely to be lengthy was nothing more than that especially when it is borne in mind that translators would need to be involved given the inference arising from the fact that Mr Dabeski’s affidavit had been translated. Mr McGrath’s submissions conceded that Mr Dabeski’s credit may well have been in issue, and the various irregularities to which I have referred at [30] above could legitimately have been explored with him even before the Power of Attorney and the Contract for a Gift and the circumstances of their purported execution were reached by the cross-examiner. Moreover, as was submitted on behalf of Lidija:

Constraining a party to cross-examining a witness by video link will not always, but may sometimes, involve a degree of unfairness to that party, depending on all the circumstances of the case. This is why an assessment of unfairness necessarily involves a judgment of an evaluative character. Relevant circumstances may include the importance of the witness, whether his or her credit was in issue, the nature and extent of documents involved, whether translation of documents or oral evidence is necessary, time differences in the other forum and the quality of technology. In certain cases, depriving the cross-examiner of the “reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party” may also work relevant unfairness: see Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152; [2009] FCA 1306 at [78].

Furthermore, the fairness or otherwise to one party of permitting a witness called by the opposing party to give evidence by video link may be affected by the timing of the application relative to the trial, the availability of other options to the party making the application and the circumstances of the witness involved. It is plain that the primary judge took these matters into account in reaching her conclusion that it would be unfair to Lidija to permit Mr Dabeski’s evidence to be given by video link.

In this context, the timing of the application was significant. It was almost five months after the date which Kunc J, at an earlier case management hearing, had set for any applications for evidence to be given by video link and almost four months prior to the date set down for the hearing of the trial.

In the course of argument, Mr McGrath accepted that an application could have been made to take Mr Dabeski’s evidence on commission, and for letters of request to be issued to the authorities in Macedonia for that to occur. This could have been done prior to, or indeed immediately after, the application for video link evidence had been declined. Moreover, as the primary judge observed at [232] of the principal judgment, set out at [43] above, there remained scope for the parties to explore means to facilitate the receipt of Mr Dabeski’s evidence, such as by taking steps to arrange for him to be made available for a conference with Lidija’s legal representatives.

A finding that it would be unfair to expose Lidija and her legal representatives to the potential disadvantages of cross-examining a witness of the potential significance of Mr Dabeski by video link unless and until such alternatives had been explored was, in my opinion, well open to the primary judge and involved no error. Further, it was always open to Vase to renew an application if either of these possibilities proved unavailing, or to seek an adjournment of proceedings if letters of request could not be given effect to in a suitable timeframe.

There was no appellable error in the decision to refuse to order video link evidence.

I now return to the balance of the grounds of appeal, noting that they were scarcely touched upon in oral argument.

It will be recalled that the first ground of appeal was expressed in terms that the primary judge “erred in finding that the Contract for a Gift, witnessed by Mirče Danilov was not authentic. No such allegation was put to Mirče Danilov”.

In the appellant’s written submissions, it was put that the findings challenged under this ground were those made by the primary judge at [450] and [453]. The finding at [450] immediately followed the primary judge’s finding that the Power of Attorney was authentic. Her Honour said:

These two paragraphs brought together a number of considerations thoroughly canvassed in the primary judge’s extensive reasons. Important in her Honour’s reasoning was the fact that the Contract for a Gift bore a different date (14 October 2009) to the Power of Attorney (13 October 2009). This is a matter I adverted to at the outset of these reasons: see [7] above. Fully to understand how this bore upon the question of authenticity and the primary judge’s parenthetical reference in [450] of her judgment to “with all the difficulty that transporting Ljubica there would entail”, it is necessary to delve a little into the facts, including the prequel to the purported “execution” by thumb print of the Power of Attorney and the Contract for a Gift on 13 and 14 October 2009 respectively in the fortnight prior to those dates.

First it is necessary to note that Lidija (who resided in Zagreb), visited her mother (the deceased) in the Granville property in early 2009 to find her living, on Lidija’s account, in a house infested with rats and cockroaches. She took her mother with her to Zagreb in late February 2009. In about March 2009, the deceased fell in Lidija’s living room, broke her hip, had surgery and was admitted into an aged care facility in Zagreb. She was further hospitalised in Zagreb in late July 2009 when her right leg was amputated above the knee due to “wet gangrene”.

On 2 October 2009, the deceased left the aged care facility in the presence of Vase and Radmila. To quote the primary judge at [100], “depending on whose account of events is accepted, this was either a rescue mission or akin to an abduction”. Her Honour described what occurred on that day and following at [102] of her principal judgment as follows:

This unfortunate set of circumstances underpinned the primary judge’s observation at [450] of her principal judgment that:

As I have indicated in [59] above, the primary judge’s reasoning at [450], which is challenged by appeal ground 1, was in essence a summary of earlier detailed analysis in the judgment. On the point made in the previous paragraph, her Honour had said at [154] of her reasons that:

Next it should be noted, in respect of the appellant’s attack on the primary judge’s conclusion at [450] (reproduced at [58] above), that no attempt was made to criticise or undermine the primary judge’s observation in that paragraph of her judgment that “the communications with Mr Dabeski that were in evidence are inconsistent with the proposition that there were two separate visits to the public notary”. It was no part of Vase’s case that the reference to 14 October 2009 in and as the date of execution of the Contract for a Gift was mistaken. Indeed the primary judge held at [153] that Vase was adamant that the Contract for a Gift was not brought back with him to Australia and “that he was not present when it was signed”. The burden of this evidence was that the Contract for a Gift must not have been executed on 13 October 2009 (when Vase was present) but, rather, that it was executed on the date it bore, namely 14 October 2009. This, however, was the matter that the primary judge held to be implausible and inconsistent with the communications with Mr Dabeski. Her Honour’s conclusion was, in my opinion, inescapably correct.

It must also be appreciated that the primary judge’s conclusion at [450] and [453] in relation to the Contract for a Gift has to be seen in the context that no original or certified copy of this document was ever produced, despite a Notice to Produce having been issued and Vase obviously having access to Mr Dabeski, the lawyer who, on Vase’s case, drew the document. The primary judge referred to this at [155] of her principal judgment. The purported affidavit of Mr Dabeski which was annexed to Mr Oliveri’s affidavit, and to which I have referred at [26]−[30] above, did not make any reference to the whereabouts of the original of the Contract for a Gift, notwithstanding that it was known to Vase’s lawyers at the time this purported affidavit was prepared that the authenticity of the document was very much in contest and a Notice to Produce had been issued for its production.

Insofar as this ground of appeal relies upon the failure to put that the Contract for a Gift was not authentic to Mr Danilov who claimed to have witnessed its execution, a number of things need to be said. First, the primary judge noted some problematic features of Mr Danilov’s affidavit evidence and the circumstances in which his evidence had come to be prepared: see at [372]−[376]. No attack was made on these criticisms of his evidence. Next, Mr Danilov was not clear in his evidence under cross-examination as to how many visits he made to the public notary’s office, although his affidavit said he attended on 13 and 14 October 2009. The primary judge referred to this at [144]−[156] of her principal judgment.

This was not a case involving or calling for the application of the rule in Browne v Dunn (1893) 6 R 67, requiring a challenge to be put to Mr Danilov before a submission could be put in relation to his evidence that bore adversely on his credit. No adverse finding was made in respect of Mr Danilov’s credit; indeed, quite the opposite. Thus, at [379]−[380], the primary judge observed that:

In the context of considering the attempted attack on the challenge to the primary judge’s finding of the lack of authenticity of the Contract for a Gift, it is also relevant to note that the other alleged witness to the “execution” of the Contract for a Gift, Ms Kostovska to whom I have already referred at [41] above, did not give evidence. In this context, the primary judge held at [433], in a part of the principal judgment left unchallenged, that:

For these reasons, the attempt in appeal ground 1 to attack the primary judge’s decision in relation to the lack of authenticity of the Contract for a Gift fails.

My conclusion in relation to appeal ground 1 means, as it meant in the court below, that the representational case which was built upon the Contract for a Gift must necessarily fail: see [18] above. That also means that it is strictly not necessary to deal with the balance of the grounds of appeal as they do not arise.

There is no need or occasion in the circumstances, moreover, to reinvent the wheel. The way in which the case was argued by Mr McGrath recognised that unless he could succeed in relation to his attack on the video link decision and the conclusion in relation to the lack of authenticity of the Contract for a Gift, the other grounds of appeal were not reached.

It is sufficient to say that, in respect of appeal ground 3 which relates to the representations which the Power of Attorney and the Contract for a Gift are together said to have given rise to and the question of reliance, I agree with and adopt the primary judge’s conclusions. In this respect, at [489] of the judgment, her Honour concluded that:

As to the finding with respect to the representations, the appellant’s written submissions mostly repeated the terms of paras 5 and 6 of the ASOC, and did not advance any reason why her Honour’s conclusion as to whether or not the representations pleaded arose was in error. Nor was any oral submission advanced in this regard.

The same observation may be made in relation to the appellant’s submissions with regard to reasonable reliance. Those submissions did nothing more than assert a challenge to the primary judge’s conclusion without developing any argument to support that assertion. The primary judge’s detailed analysis of the facts with regard to reasonable reliance was cogent and, in the absence of any specific attack on that analysis and the factual findings on which it was based, this appeal ground has no merit. Moreover, given that Vase was not, on his own evidence, present when the Contract for a Gift was executed and given that a “copy” of it did not come into his possession until mid 2016, it is difficult to understand how he could have relied upon a written representation said to arise from it in the years preceding it ever having come into his possession.

For the reasons given in [70] - [74] and the findings in relation to the alleged representations and lack of reliance remaining intact, it is unnecessary, in my view, to deal with appeal grounds 2 and 4, dealing with undue influence and unconscionable conduct. One point, however, can and should be made relating to the appellant’s submissions in support of appeal ground 4 which attack [563] of the judgment. That paragraph was as follows:

Nothing in the appellant’s written or oral submissions called into question the significance of the primary judge’s finding as to lack of independent advice.

For the foregoing reasons, I would dismiss the appeal with costs.

PAYNE JA: I agree with Bell P.