Antov v Bokan

1. [1]

   HER HONOUR: In these proceedings (which have a convoluted procedural history to which I will refer in due course) the plaintiff, Vase Antov, seeks declaratory and other relief in relation to certain property at Granville (the Granville property), which he claims is held on constructive trust for him. That claim is based on representations contained in two documents allegedly executed in Macedonia by his late grandmother (Ljubica Dimitrovska) in October 2009. For convenience, and without intending any disrespect, I will refer to the respective family members by their first names.

2. [2]

   Vase claims to have relied on the alleged representations (in carrying out renovations and improvements to the Granville property and in living at the Granville Property with his grandmother and mother from about May 2010 until his grandmother’s death on 17 November 2014, during which period he says he assisted his grandmother “with the cost of living”), so as to give rise to an entitlement on his part to receive an unencumbered transfer of the Granville property invoking the principles of promissory estoppel.

3. [3]

   The Granville property is the principal asset of Ljubica’s estate (though, for completeness, I note that Vase also claims that the balance of Ljubica’s estate is held on constructive trust for him).

4. [4]

   The first defendant, Lidija Bokan, is the executor of Ljubica’s estate and one of Ljubica’s two daughters. The second defendant (formerly the first plaintiff in these proceedings but who is now joined as the second defendant, for reasons I will explain in due course, and who has filed a submitting appearance) is Ljubica’s other daughter (and Lidija’s half sister), Radmila Antova. Radmila is Vase’s mother.

5. [5]

   The two documents on which Vase’s claim rests (the authenticity of both of which was challenged by Lidija) are both in the Macedonian language: a document translated as being headed “Power of Attorney” dated 13 October 2009 (to which I will refer as the Macedonian Power of Attorney) and a document translated as being headed “Agreement for a gift” dated 14 October 2009 (to which I will refer, consistently with the terminology used in the amended statement of claim, as the Contract for a Gift) (see the translation of those documents by an accredited interpreter, Ms Slavica Božinoska, contained in Exhibit 6). Each of those documents is said to have been executed by Ljubica in Macedonia (by the imprint of her thumb on the document), on the respective dates the documents bear, in the presence of a public notary and two witnesses (Mr Mirče Danilov and Ms Letka Kostovska). The documents are said to have been prepared on Ljubica’s instructions by a lawyer in Macedonia (Mr Zarko Dabeski). I set out the text of those documents in due course (see [151]-[157] below).

6. [6]

   It was emphasised by Counsel for Vase in closing submissions that Vase relies upon both documents to establish his case – i.e., he does not attempt to rely upon one without the other. It was said (though I am not convinced that this is necessarily the case and, indeed I have concluded otherwise) that, in the way that the case has been conducted, it would not reasonably be open for there to be a finding that one of the documents is authentic but not the other (see plaintiff’s written closing submissions at [4]). In any event, in oral closing submissions, Counsel for Vase made it clear that if the Contract for a Gift is not found to be an authentic document then “this case would simply not be pressed further” (see transcript of 22 June 2018 at T 2.3-2.5).

7. [7]

   In Lidija’s defence to the claim (pleaded in her further amended defence filed 2 March 2018), among other things, Lidija denies the authenticity of the two documents on which Vase’s claim is based (see [3(b)], [4(c)], [6(a)], [7]); denies the capacity of Ljubica to make the alleged Macedonian Power of Attorney ([4(c)(ii)]; [6]) and the alleged Contract for a Gift ([8(a)]); and raises issues of presumed undue influence, actual undue influence and unconscionable conduct. Lidija also raises defences of estoppel, laches and acquiescence, as well as invoking the principles of Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) and abuse of process. The Anshun estoppel and abuse of process defences (made only in the latest amendment to the defence) arise out of the circumstances in which family provision claims brought by Radmila and Vase were settled between the parties (though apparently not finally disposed of) at a time prior to the bringing by Vase of his current claims (which is part of the convoluted procedural history of this litigation to which I have adverted above).

8. [8]

   Lidija has cross-claimed seeking declarations, among others, that each of the Macedonian Power of Attorney and the Contract for a Gift was procured by undue influence and/or unconscionable conduct by Vase (and/or his mother, Radmila); and that Ljubica lacked capacity to execute those documents.

Summary

1. [9]

   For the reasons set out below, I dismiss Vase’s claims. In summary, and applying the heightened standard of satisfaction indicated by Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 to this issue, I am not persuaded that the Contract for a Gift is an authentic document. I consider that it is most likely to have been brought into existence some time in 2016 – after Vase had discovered in 2014 that the Macedonian Power of Attorney was not (as he seems at least as at late November 2014 to have thought) a will and was not effective to transfer to him the whole of Ljubica’s estate; and after he had accepted, at a March 2016 judicial settlement conference, that his family provision claim should be dismissed. Certainly, the existence of the alleged Contract for a Gift was not disclosed to Lidija until Vase filed and served his affidavit sworn 26 July 2016 when resisting Lidija’s application to enforce the agreement reached at the March 2016 settlement conference.

2. [10]

   In any event, whether or not the Contract for a Gift was brought into existence at that late stage or was brought into existence at some earlier time, I am satisfied to the requisite standard that it was not a document executed by Ljubica on 14 October 2009 as alleged by Vase. That is sufficient, as conceded by Vase, to dispose of his claims.

3. [11]

   In those circumstances it is not strictly necessary separately to determine Lidija’s cross-claim. However, in respect of that cross-claim, I find that a presumption of undue influence exists (and has not been rebutted) and that there was unconscionable conduct on the part of Vase in relation to the execution of the Macedonian Power of Attorney. The claims of undue influence and/or unconscionable conduct on the part of Radmila were not pressed in any substantive way at the hearing (at which Radmila was neither present nor actively represented) and it is not appropriate to comment further on those claims.

4. [12]

   Finally, while I consider that the circumstances in which the promissory estoppel claim was brought by Vase (by the filing without leave of his amended summons, in what had been commenced as family provision proceedings, after agreement had been reached for the settlement of the whole of the proceedings and claiming an interest wholly inconsistent with the claim for family provision that had been made by him in those proceedings) did amount to an abuse of process on his part, and that there is no issue estoppel precluding Lidija from now raising that issue, it is not necessary to determine the matter on that basis. That is because the claim, as brought by Vase, fails on its merits. (Similarly, the defences based on an estoppel other than Anshun estoppel, laches or acquiescence, take the matter no further.)

5. [13]

   While I have real doubts as to the capacity of Ljubica to grant the Macedonian Power of Attorney in favour of Vase (which I find on the balance of probabilities to be an authentic document) as at 13 October 2009, I am not satisfied that lack of capacity has been established on the limited medical evidence available.

Background

1. [14]

   It is necessary to set out the background to the present dispute in some detail (some but certainly not all of which is drawn from a Statement of Agreed Facts – Exhibit A). The Statement of Agreed Facts was prepared for the purpose of the hearing (on 12 April 2018 at the commencement of the final hearing, which was accelerated in order to accommodate Vase’s request for this issue to be heard first) of argument on the issue raised by the pleading in Lidija’s further amended defence of defences based on Anshun estoppel and abuse of process.

2. [15]

   Ljubica had three children: the first, Radmila, born in Macedonia in 1948, from her first marriage to Nicola Jankulcevski, from whom Ljubica was divorced in about 1950; the second, Lidija, born in Macedonia in 1957, from Ljubica’s second marriage in about 1956 to Dimitar Dimitrovski (who died in 1971); and the third, a son, Ljupc Dimitrovski (also known as Leonard), born in Macedonia in 1960 also from Ljubica’s second marriage. Leonard died in 2010, having suffered a serious accident some 15 years earlier which had left him in a vegetative state (see the evidence of his widow, Manuela James, at T 246.23-28; 247.23, 13 June 2018).

3. [16]

   Ljubica and her second husband moved to Australia (with Lidija and Leonard, Radmila remaining in Macedonia) in 1967; and in 1969 the couple purchased the Granville property. Lidija married her first husband in 1976 and in 1987 moved to live in Croatia. She married her second husband about 18 months before the events in question (which commenced in early 2009). Vase, who at the time of the hearing was 49 years old, is the son of Radmila and a grandson of the deceased. He moved to Australia in 1997 but had spent time abroad in the period from 1997 to some time before 2009 (in Austria for a brief time in 1999 and then again from 2001 to about 2006 – see T 117, 12 June 2018).

4. [17]

   As at January 2009, Ljubica was living on her own in the Granville property, of which she was by then the sole owner (her second husband having died in 1971). It does not appear to be disputed that, by January 2009, her condition had deteriorated to the point where she needed assistance. Certainly, Vase accepted in the witness box that at that time “she was a little bit weaker” and agreed that he and his mother Radmila were concerned about her (see T 42.32-39, 7 June 2018), though he said that Ljubica could do all the “basic living” “almost by herself” (T 43.7) and that she was lucid (T 43.20). He also, somewhat grudgingly, accepted that Lidija was concerned about Ljubica as well (T 42.42).

5. [18]

   At that time, Lidija was living in Zagreb, Croatia, with her second husband and one of her daughters; Radmila was living in Skopje, Macedonia, with her husband; and Vase was living in Sydney in rented accommodation in Brighton-le-Sands and working full-time as a coffee technician (T 44.50-45.3).

6. [19]

   Lidija’s evidence is that she came to Sydney in February 2009, having received information from various sources (see T 290.26, 14 June 2018) that her mother was not well; having had difficulty contacting her mother (and having contacted the police in that regard); and her mother having told her over the phone that she needed help (T 290.42; T 291.48; T 292.6); that she found her mother in a poor state and the house in a filthy and unhygienic condition (“full of rats, cockroaches” – T 294.12); and that almost immediately she took her mother to seek medical assistance. I note that it is not disputed that Ljubica suffered from Type 2 diabetes. A medical health assessment form that was in evidence (see CB 2/844) records a history of non-compliance with medication and treatment in 2000, 2001 and 2002.

7. [20]

   The precise timeline of events at this point was a matter that assumed some significance in Lidija’s cross-examination. It is not disputed that Lidija arrived in Sydney on 9 February 2009. Her evidence was that, at that stage, she had not formed a decision to take her mother back to Croatia (T 280.2; T 292.10; T 292.30-35; T 292.45).

8. [21]

   On 10 February 2009, Lidija took her mother to see her mother’s family doctor (Dr Wafik Latif). Dr Latif had treated her mother for some time. Lidija agreed in the witness box that Dr Latif advised that her mother should be placed in a hospital immediately as she was in danger of experiencing a heart attack (T 280.19) but said that her mother had pleaded with her not to take her to hospital (T 280.29); and that she took her mother back to the Granville property instead – intending to see how it went and, if her mother got worse, to take her to the hospital (T 280.41).

9. [22]

   I interpose to note that the flavour of some of the cross-examination of Lidija in relation to this was to suggest that Lidija had been in some way blameworthy in failing to insist upon her mother being admitted to hospital that day (see T 281) and that she had not been genuinely concerned with her mother’s welfare (T 292.48). Apart from the fact that it is difficult to see the relevance of this to the central issue in the proceedings, it is clear from Dr Latif’s handwritten note, on a health assessment form dated 10 February 2009 (CB 2/844-845), that Dr Latif cannot have considered hospital admission essential on that day, since his note (which corroborates Lidija’s evidence on this issue) was:

10. [23]

    It was also put to Lidija (which she in substance denied) that she had prevented Ljubica from receiving medical attention by taking her to Croatia in those circumstances (T 281.44). (Lidija maintained that she had not taken her mother to Croatia “in those circumstances” and that by the time they went back to Croatia her mother had improved to the extent that Dr Latif was pleased with her condition.)

11. [24]

    It is clear that at least as at 16 February 2009 Dr Latif was aware of the proposed trip to Croatia and there is no suggestion that he counselled against it (see [43] below).

12. [25]

    There was some lack of clarity, in Lidija’s evidence, as to when (and on how many) occasions, after that first visit to the doctor (on 10 February 2009), Ljubica saw the doctor. In cross-examination, she said that they went to the doctor at least three or four times (T 282.6). She also gave evidence that they had seen Dr Latif on a couple of occasions after the first visit on 10 February 2009 (the first being a few days after 10 February 2009, on which occasion she said Dr Latif was pleased with her mother’s recovery). There was certainly evidence that they went again to see the doctor on 16 February 2009 (to which I refer at [43] below), by which time it seems that the decision that Ljubica should go back to Croatia with Lidija had been made (since it is recorded in the doctor’s letter of that date, at which time he prescribed some six months’ worth of medication for Ljubica). However, it is not clear that there was any visit to Dr Latif in between 10 and 16 February 2009. Certainly, there was no contemporaneous record of any such visit in evidence to which I was taken.

13. [26]

    The timing of the subsequent visit(s) to the doctor (i.e., after 10 February 2009) is of relevance when setting into chronological context the time at which the decision was made that Ljubica should return to Croatia with Lidija.

14. [27]

    Lidija’s evidence in cross-examination was that that decision was made at a “later” time (i.e., later than the time of the first visit to the doctor on 10 February 2009) after she had spent a whole day discussing the problem with her mother (T 282.50). She also referred to having had discussions with Manuela (and others); and having had a telephone conversation with Radmila (who she said was “totally” opposed to the move) about the matter (see [40] below). She said (at T 283.2) that the decision was made together with her mother after a week.

15. [28]

    Lidija’s account in this regard was challenged in cross-examination by reference, among other things, to the timing of other events and, in particular, the date on which Ljubica executed a new will (which was on 11 February 2009).

16. [29]

    Lidija’s evidence was that her mother had insisted that Lidija take her to her solicitor to make a new will (Lidija was also adamant that it was her mother who took her there – see T 293); that the solicitor had moved away from the area and was not there at the time they went there (T 287.45); that they went home and Ljubica requested that she try and find another solicitor (T 293.30); and that she did so, that solicitor being Mr Vassili who visited at Ljubica’s house to take instructions in relation to the will. (Corroboration of Lidija’s evidence that they had first attempted to contact her mother’s former solicitor is said for Lidija to be found by reference to an earlier will that was in evidence, which did indeed name a different solicitor with an address in the area but little can in my opinion be drawn from this.)

17. [30]

    Lidija placed the timing of the visit to the office of the solicitor who was not in the area any more as being on the occasion of their second visit to Dr Latif (T 287.40). Given that the will was executed on 11 February 2009, if that evidence were to be correct this would mean that after the 10 February 2009 consultation there must have been: a second visit to Dr Latif; an abortive trip to see the solicitor; attempts to contact another solicitor; Mr Vassili being contacted and attending at the Granville property to take instructions; Mr Vassili preparing a will (and power of attorney); and the relevant document(s) being executed – all in the space of some 24 hours.

18. [31]

    Lidija also said that her mother had demanded that she go to the bank and put her name on her mother’s account and that her mother took her to the bank to do this (see T 293). It is not clear precisely when the bank account details were changed. The bank issued a new bank book with Lidija’s name on it on that day (Lidija’s affidavit sworn 8 August 2017 at [34]).

19. [32]

    The objective facts, as disclosed by the contemporaneous documents, are that, after Lidija arrived in Sydney on 9 February 2009: Ljubica saw Dr Latif on 10 February 2009; Ljubica executed her new will and the power of attorney in favour of Lidija on 11 February 2009; and, on 16 February 2009, Dr Latif prescribed a supply of medication expressly in contemplation of Ljubica’s travel to Croatia. On any view of the matter, the first two of those events took place in a very short compass and at a time when (at least on 10 February 2009) Ljubica had been assessed as being sufficiently unwell as to warrant the medical advice that she immediately be admitted to hospital.

20. [33]

    The significance of the timing of the making of the new will, at least insofar as this is linked to any decision having by then been made for Ljubica to return with Lidija to Croatia, is that it is inconsistent with the decision as to travel having been made “after a week”, as was Lidija’s evidence. At the very least, it indicates that discussions as to Ljubica’s future care are likely to have taken place very shortly after Lidija’s arrival in Australia. That said, it seems inherently unlikely that an elderly woman in danger of experiencing a heart attack would have recovered sufficiently overnight for it to have been contemplated at that stage that she would be shortly be able to travel overseas.

21. [34]

    On balance, it thus seems more likely that arrangements were made for the new will and power of attorney to be executed (and the new banking arrangements made) at a time before any final decision had been made for Ljubica to travel to Croatia – perhaps consistent with the need to put in place arrangements in relation to Ljubica’s affairs in the face of what Lidija seems to have regarded as a sufficient emergency for her to travel at short notice from Croatia to Australia in order to respond to what she says was Ljubica’s request for help. It is not, however, necessary to determine at what precise point the travel decision was made, and, for the reasons I give later, I do not consider that any confusion as to the number and timing of the visits to Dr Latif, or as to when the decision was made for Ljubica to travel to Croatia, adversely affects Lidija’s overall credibility.

22. [35]

    As adverted to above, on 11 February 2009 Ljubica signed her last will and testament (this being the will later admitted to probate) (CB 2/654). It was witnessed by the solicitor who prepared the will (Mr Vassili) and another witness. At the same time a Power of Attorney was signed appointing Lidija as Ljubica’s attorney (CB 2/1091).

23. [36]

    The will appointed Lidija as executor and trustee of Ljubica’s estate and made Lidija the sole beneficiary of Ljubica’s estate. The will included an explanation for the fact that provision had not been made for Leonard and Radmila in the following terms:

24. [37]

    Lidija gave evidence (which was corroborated by Manuela’s evidence of contemporaneous statements made to her) of her distress at the decision by Ljubica not to treat her children equally. I will revert to this in due course (see [44] below). I also note that there was evidence from Manuela which suggested that it was not unusual for Ljubica to change her will from time to time in favour of one or other family members at the expense of others (see T 254.5).

25. [38]

    According to Lidija, after about a week (and after discussion with her mother and others) she formed the opinion that her mother needed care and could not remain living on her own at the Granville property; Radmila was not able at that time to come to Australia and care for their mother as she did not have the necessary visa; and the only other option (since Lidija had shortly to return to work in Croatia) other than her mother going to Croatia was for her mother to go into a nursing home in Sydney.

26. [39]

    The evidence of Lidija and Manuela was that there had been some kind of falling out between Ljubica and Vase; and that Ljubica did not want Vase to come to the home. Vase disputes this. Whatever be the case in this regard, it is apparent that Lidija did not consider at the time that it was an option for her mother’s care that Vase – who was working full-time – should take on the role of carer. Nor was it considered a feasible option for Ljubica to go to Brisbane to live with Manuela. Manuela’s evidence makes clear that she shared Lidija’s view that the only option at the time – other than Ljubica being placed in a nursing home – was for Ljubica to go to Zagreb with Lidija.

27. [40]

    Lidija accepted, in cross-examination, that this was a “rather life changing decision” and a “very big decision”. She maintained (though she had not included any reference to this in her affidavit evidence) that she had discussed this with Radmila (T 285.23-287.2):

28. [41]

    Pressed in relation to this, on the second day she was in cross-examination, there was the following exchange (T 294.9-294.31):

29. [42]

    As to the making of what Lidija said was a joint decision for Ljubica to go to Croatia, Lidija gave evidence in the witness box that she and her mother had discussed the options over the course of a day (T 287.17-287.28):

30. [43]

    As adverted to above, it appears that by at least 16 February 2009 the decision had been made that Ljubica would travel to Croatia, since on that day Dr Latif prescribed medication for Ljubica’s “personal use while travelling”, noting that he believed Ljubica would be travelling overseas for a period of 6 months (see CB 2/843). Lidija’s evidence was that Dr Latif prescribed insulin for her mother to take with her to Croatia, as well as the needles necessary to administer the insulin. (Although Lidija was cross-examined to suggest that she had not taken such paraphernalia with her, I accept Lidija’s evidence that she did so – it is consistent with Dr Latif having prescribed the medication that Ljubica needed for that purpose.)

31. [44]

    As noted above, Lidija’s evidence was that she was distressed about her mother making a will in which equal provision was not made for her siblings. She arranged, before they left Australia, to have her own will drawn up in which she bequeathed her real and personal property in New South Wales equally amongst various beneficiaries including Radmila and the children of her brother Leonard (see her will dated 20 February 2009, which was drafted and again witnessed by Mr Vassili – CB 2/652-653).

32. [45]

    Lidija took Ljubica with her back to Zagreb in late February 2009. As to this, Vase’s complaint in the witness box seemed to be that Lidija had not informed him where and what she was doing (T 47.40). When asked why she had to inform him, Vase said (T 47.47-48.4):

33. [46]

    On arrival in Zagreb, Ljubica lived in Lidija’s home until Ljubica had a fall in the living room and broke her hip. This was placed by Lidija as having occurred on 22 March 2009 (see Lidija’s affidavit sworn 8 August 2017, [36]). In cross-examination, Lidija thought this was about a month after their return to Zagreb. (That is consistent with the history recorded in a later admittance record to the Psychiatric Hospital Vrapce, which refers to a fall in a living room in March and a hip fracture – see CB/868.)

34. [47]

    Following Ljubica’s fall and hip fracture, Ljubica underwent surgery in a hospital in Zagreb (see case history notes at CB 2/856) after which she was admitted (on 7 April 2009) to an aged care facility (sometimes referred to in the evidence as a nursing home) in Zagreb (see part of the evidence later before the Guardianship Tribunal in that regard which puts the date of Ljubica’s admission to the Nursing Home for Elderly and Disabled Persons – “Residence Kastelan” – as being on 7 April 2009; CB 2/854). (I note here that although objection was initially taken by Vase to the admission into evidence of various of the documents obtained by Lidija on subpoena from the later Guardianship Tribunal file in relation to Ljubica, that objection was not pressed in relation to some of those documents. In particular, objection to the admission of the documents at CB 2/851-871, which include the above admittance record, was withdrawn after I had deferred ruling on them on 14 June 2018 – see T 365.40.)

35. [48]

    Meanwhile, according to Vase, Radmila came out to Australia in March 2009 (see T 51.28). Somewhat inconsistently he had earlier said that at some time “quite a bit of months after February [2009]” Radmila came to Australia “and my grandmother was not here, as, as supposed to be”, saying that “it was my mum spoke with the grandmother - … and she was supposed to be here” (T 48.23).

36. [49]

    Pausing here, on this account of events from Vase, if he did not realise that Ljubica was not in Australia in the period from February 2009 until his mother’s arrival, and only found this out at about the time his mother came to Australia (which he variously put as “quite a bit of months” after February and then in March 2009) that Ljubica was not there, this casts some doubt on his assertion in the witness box that he was “basically communicating”, visiting his grandmother and providing everything while she was there (see T 47.40 extracted above at [45]); as also does Lidija’s evidence of the state of the Granville property at the time she visited in February 2009 (since if Vase had been visiting regularly it might be thought he would have been aware of this and if he had been the caring grandson he portrays himself as being, that he would have sought to address Ljubica’s living conditions at that time).

37. [50]

    In any event, Vase’s evidence was that he saw his grandmother in January 2009 (T 51.12); that his grandmother was weak at that time (T 51.15); that he (subsequently) realised that Ljubica had been taken to Zagreb and he assumed that she was living with Lidija (T 51.18-22); that Radmila came out to Australia in March “because it was out of the usual, my grandmother to stay for such a long period somewhere else” (T 51.28-38) and stayed in Australia until June (T 51.41); that, between February and June 2009, Radmila could not talk with Ljubica (something that presumably could only derive from what Radmila had told him) (T 51.41); and that (see below) he spoke with a friend or acquaintance of the family, Mr Kurtovic, (either at around May or June 2009 – T 50.19 – or in July 2009 as per his affidavit) and asked him to go to Zagreb to see Ljubica (T 50.42) or to “assist in locating” Ljubica (see [25] of his 2 November 2016 affidavit).

38. [51]

    As adverted to above, Ljubica was examined at a psychiatric hospital in Zagreb (CB 2/868) on or about 19 June 2009 but it appears that she was not then hospitalised; and that she returned to the aged care facility.

39. [52]

    By around May or June 2009 (as was put to him in cross-examination) or at the latest by July 2009, Vase must have become aware that Ljubica was or might be in Zagreb because he spoke (in his affidavit he puts this conversation as occurring in about July 2009) with Mr Veselko Kurtovic (someone who gave evidence in these proceedings and who has deposed that he was a close friend of Ljubica and had known her since about 1992 – see Mr Kurtovic’s affidavit sworn 22 August 2016 at [1]-[2]), asking him to go to Zagreb to see his grandmother (see T 50.19-49; Vase’s affidavit of 2 November 2016 at [25]). (After some resistance, Mr Kurtovic conceded in the witness box that Vase had paid for his airfare to Zagreb, though not his expenses while he was there.)

40. [53]

    At some time in or around July 2009 (after Ljubica’s hip fracture but before Ljubica’s leg was amputated – see [57] below), Lidija travelled back to Sydney and made various arrangements in relation to her mother’s affairs. Lidija said that she came to Australia before her mother’s leg was amputated (T 304.49); that she came in July for a couple of weeks; and that Ljubica’s leg was amputated (she believed in August) when she arrived back in Zagreb (see T 305.2-7). She denied that when she left for Australia it had become apparent that the leg needed to be amputated. She said that in the second week she was in Australia she was told that her mother was going back and forth to the hospital for check-ups (T 305).

41. [54]

    Lidija said that she received information that her mother’s pension would be reduced as she was overseas but had a property in Sydney; and she was concerned about the need to meet medical bills and the like. Manuela gave evidence that around this time (she put it as occurring after Ljubica’s leg was amputated but it seems likely to have been shortly before that, having regard to the evidence of Mr Kurtovic to which I refer shortly that Lidija came to the hospital at that time) she (Manuela) had made some enquiries and had given Lidija information as to what would be the Australian Taxation Office and Centrelink “view” as to Ljubica’s pension. This was in circumstances where, she says, she (and Lidija) realised that Ljubica would not be able to return to Australia (T 256.15). Manuela’s understanding in that regard was that Ljubica would not receive a full pension if she resided overseas for a certain period of time (T 258.49) and she agreed in cross-examination that there might be a need for costs in relation to Ljubica’s medical treatment to be met out of Ljubica’s property in Australia (see T 258.49).

42. [55]

    Lidija says that on her visit to Sydney she cleaned out various items from the Granville property (though leaving larger items there, including her mother’s fridge) and that she also contacted the solicitor who had prepared her mother’s will (Mr Vassili) with instructions to arrange a trust account to be set up for her mother. Lidija’s evidence was that a number of the items that she disposed of were owned by her; that some were thrown out because they were not in good repair; and that she left larger items in the house (T 315.30-315.50).

43. [56]

    Vase gave evidence of seeing that many things from the Granville property had been removed by around July 2009, which corroborates Lidija’s evidence as to the timing of her visit.

44. [57]

    Ljubica was hospitalised in Zagreb from 27-31 July 2009 (see CB 2/856; 862) and on 31 July 2009 she was transferred to the vascular surgical ward where her right leg was amputated above the knee due to “wet gangrene” (CB 2/862). Lidija’s evidence, corroborated by that of Mr Kurtovic, is that she had returned to Zagreb by the time the amputation was carried out. It appears that after that surgery she was hospitalised from 31 July to 7 August 2009 (see CB 2/863) and then returned to the aged care facility.

45. [58]

    I interpose to note that in Vase’s affidavit of 2 November 2016 he asserts that it was “with the assistance of mother [Radmila] and Veselko Kurtovic” that his grandmother was taken to the hospital at Zagreb (see [28]). This is contradicted by the evidence of Ms Zdenka Derkos, a friend of Lidija’s who was regularly visiting Ljubica (at Lidija’s request) during the time Ljubica was in Zagreb. Ms Derkos says that she accompanied Ljubica to the hospital – see [92] below.

46. [59]

    Lidija points to various statements in the medical records that were contained on the subsequent Guardianship Tribunal file in relation to Lidija in which there is reference to a diagnosis of dementia or dementia syndrome having been made in relation to her mother in July 2009 (see for example the discharge letter from a clinical hospital in Zagreb – CB 2/856). Lidija relies on those reports for the conclusion that a diagnosis of dementia was made in relation to her mother in July 2009 (CB 2/587).

47. [60]

    Objection was taken for Vase to the admission of those reports and to reliance by Lidija on medical records of this kind to prove incapacity, an issue I deal with in due course. For present purposes, in setting out the chronological background to the dispute, I simply note that the medical records that were before the Guardianship Tribunal in May 2010 included reference to symptoms of dementia in or around July 2009.

48. [61]

    Vase gave evidence in his affidavit of 2 November 2016 (at [35]) that in about September 2009 he travelled to Zagreb for the purpose of visiting his grandmother. He also deposed (see his affidavit at [38]) that in about September 2009 he first became aware of a document titled “power of attorney” (that being the February 2009 power of attorney made in favour of Lidija) (see T 58.13-26; T 59.15) and that he had a conversation with Ljubica in relation to this. It was not clear from his affidavit whether this was something he says he found out during the (one) visit he says he made to the aged care facility in Zagreb but in his affidavit he deposes to a conversation with Ljubica about a power of attorney in favour of Lidija (see [38]) and he appears to place this conversation as being in September 2009. (He denies that he saw Mr Dabeski, the lawyer who it is said drafted the Macedonian Power of Attorney and Contract for a Gift, until “much later” (T 60.35) and he puts that event as not occurring until after Ljubica had been taken to Skopje.)

49. [62]

    Vase’s evidence in cross-examination (to which I will refer in more detail shortly) was that he only visited Ljubica once at the aged care facility; and that this was on 2 October 2009. If so, then the conversation with Ljubica to which he deposed in his affidavit about the power of attorney in favour of Lidija could not have occurred in September 2009. In any event, for present purposes I simply note that it is not clear on Vase’s account of events, as deposed to in his affidavit evidence, how it was that Vase became aware in September 2009 (as he says he did) of the February 2009 power of attorney made in favour of Lidija.

50. [63]

    Pressed on this issue in cross-examination, Vase said that when he was in Croatia he saw one page of a copy of the power of attorney in favour of Lidija (T 112.48) but he could not exactly remember whether he saw it in the aged care facility or when it was that he saw the document (see T 113.1-12). He resisted answering questions as to his understanding of the effect of the document when he saw it (T 113.1-114.9):

51. [64]

    What is clear, however, is that Vase must have become aware of the existence of an earlier power of attorney in favour of Lidija at some time before 13 October 2009 (since the Macedonian Power of Attorney itself purports to revoke that earlier power of attorney and Vase either gave or was privy to the giving of instructions to Mr Dabeski in relation thereto).

52. [65]

    There were varying accounts of visits made to Ljubica by Radmila and/or Mr Kurtovic while she was in the aged care facility and hospital in Zagreb, respectively, prior to her leaving the aged care facility on 2 October 2009. I summarise those below before turning to the events of 2 October 2009. Pausing here, I note that Radmila did not give evidence in the proceedings before me (though she had given evidence in an earlier hearing in this matter before Kunc J) so there is no account by her of what happened on the occasions that others said she was present at the aged care facility and hospital.

53. [66]

    I have already noted that Vase gave evidence that, at his request, Mr Kurtovic went to Zagreb. He says that Mr Kurtovic “found” Ljubica (“Mr Kurtovic find the grandmother, yes” – T 52.26). He said that then Mr Kurtovic and Radmila together went to visit Ljubica at the aged care facility in Zagreb (T 52-53). It is clear that Vase was not present during that first visit so his evidence as to that visit cannot be based on Vase’s personal knowledge. Instead, his evidence of that visit was said to be based on “conversation” with Mr Kurtovic and Radmila.

54. [67]

    It was put to Vase, but he did not accept, that Radmila and Mr Kurtovic had gone to visit Ljubica with a lawyer or public notary to try and get Ljubica to sign some documents – T 53.33-40. What he did accept was that there had been a problem when the two visited Ljubica in the aged care facility (T 53.46-50) and that they had to leave. He said that this was because his grandmother needed to be taken immediately to hospital – see T 54.3-24 (an example, I interpose to note, of Vase talking across the cross-examiner). The reference to Ljubica needing to be taken immediately to the hospital suggests that Vase may be putting this first visit by Radmila and Mr Kurtovic at some time around late July 2009, though that is not clear. (Ms Derkos gives a different account of that first visit by Radmila and Mr Kurtovic, to which I turn shortly.)

55. [68]

    Vase says that when he arrived in Zagreb he met Radmila and that he and Radmila went to the aged care facility to see Ljubica (T 55). However, he was adamant that he only went once to the aged care facility in Zagreb (T 55.27; T 111.39) in which case he must have here been referring to the visit on 2 October 2009 (see below at [101]; T 64.44; cf T 64.17) and I deal with this in due course.

56. [69]

    At this stage I simply note that if, as Vase was adamant was the case, he only went to the aged care facility once (T 64.17-28) and that was the occasion that he and Radmila left with Ljubica (I say “left” because Vase was adamant that there was a difference between his grandmother being taken and his account, which was that “she came and ask to come out” – see T 63.48-64.2), then it must follow that, although he said that he travelled to Zagreb in September 2009 to see his grandmother, he did not actually see her there until the very occasion on which he wheeled her out of the aged care facility in a wheelchair (and, as already noted, the conversation to which he deposed with his grandmother at [38] of his affidavit cannot have taken place in September 2009).

57. [70]

    Mr Kurtovic accepted that in early 2009 Vase had telephoned him and told him that Lidija had taken Ljubica to Zagreb (T 177.25); had asked him for some help (T 177.28); and had asked him to go to Zagreb (T 177.31). He responded to a question as to whether Vase had arranged his tickets by saying “It’s not really like that” (T 177.34) and, questioned as to whether Vase paid for the tickets, he gave a non-responsive answer about the request for help by Vase (T 177.37-177.44). Ultimately he agreed that Vase had paid for his tickets to go to Zagreb (T 178.8) but not his expenses in Zagreb (T 178.11) and that he was going there to find Ljubica (T 178.17).

58. [71]

    Mr Kurtovic said that he was met in Zagreb by his cousin and that the two of them went together to the aged care facility where he knew Ljubica was (T 178.27). He said that he went in (to the facility) with his cousin. He denied that he had with him any documents for Ljubica to sign; and there was then the following exchange (at T 183.4-183.40):

59. [72]

    Mr Kurtovic accepted that he had been asked to leave by the management at the aged care facility (at T 185.2) and that there had been some commotion:

60. [73]

    It should be noted here that the suggestion there made by Mr Kurtovic that at that time Ljubica had only two days to live had no independent evidentiary basis. That seems simply to have been Mr Kurtovic’s assessment of the situation (and one not based on any medical knowledge or training) though he attributed it at one stage to something he had been told at the hospital. Cross-examined on this, Mr Kurtovic resisted answering the proposition that he was not a doctor, referring to being present when they had amputated part of Ljubica’s other leg at Westmead Hospital “for the same reason” (presumably referring to the previous amputation of some of her toes) and saying that he was “actually … a biochemist engineer, with the computer”. (In his affidavit he deposes to his occupation being that of a concreter.) He asserted that that was what he had been told at the hospital. Eventually, having been asked the question some nine times, Mr Kurtovic seemingly grudgingly accepted the proposition that he was not a doctor: “Yeah, all right, I not” (T 184.31).

61. [74]

    After the first visit to the aged care facility, Mr Kurtovic rang Radmila, who was in Skopje at the time (T 185.4-185.8). After he was told to leave the facility the first time, Mr Kurtovic said that he and Radmila went to see Ljubica again (T 185.24; 185.33). (He emphasised that he did not go back there with his cousin.) His recollection at first in cross-examination was that he and Radmila went to the aged care facility (T 185.30) and he did not agree that it was possible that he and she went to the hospital (T 185.36) (cf his affidavit at [22]-[23]). (However, it may be that the sentence at [18] of his affidavit is the reference to this visit with Radmila, being a visit to the “old age home”, and [22]-[23] are referring to a later time.) Pressed on this, there was the following exchange (T 186.1-186.15):

62. [75]

    Mr Kurtovic agreed then that the second time he went to see Ljubica was at the hospital when her leg was just about to be amputated and that he went with Radmila. He said that Lidija was not there at the time, she was in Australia but not long after that evidence he said that “maybe” the same day or afternoon that he and Radmila were at the hospital Lidija arrived there.

63. [76]

    Asked if he had gone with anyone else (to the hospital) he said (T 186.37-186.45):

64. [77]

    His evidence as to whether or not he or Radmila came to the hospital with documents to sign was as follows (T 187.5-188.10):

65. [78]

    Mr Kurtovic denied that there was a problem at the hospital when he was there with Radmila and that he was asked to leave by a doctor or staff member of the hospital; and said he left because Lidija was threatening to call the police (T 188.20-188.38):

66. [79]

    I note for completeness that Mr Kurtovic accepted that there had been a previous incident in which Manuela had asked him (and his wife Magda) to stop interfering with Leonard’s care at a hospital. However, I draw nothing from that evidence (in particular it was not sought to be relied on as evidence of a tendency for Mr Kurtovic to behave in such a fashion).

67. [80]

    The most compelling evidence as to the visits made to Ljubica at the aged care facility and hospital prior to the occasion when she left the aged care facility on 2 October 2009 came from Ms Derkos, an office secretary and friend of Lidija, who had visited Ljubica regularly at the aged care facility.

68. [81]

    The first occasion on which Ms Derkos met Radmila was when Radmila visited Ljubica in the aged care facility. Her evidence in chief as to that occasion (see from T 350.6-351.50) was as follows:

69. [82]

    In cross-examination, Ms Derkos confirmed that Ljubica seemed happy that Radmila had come. She confirmed that she had remained in the room but said that “they really did not introduce us or we weren’t introduced” (T 356.27). She denied that there was some conversation in the room at that time about Ljubica’s foot (T 356.31;41) and denied that there was any conversation about that foot needing to be amputated (T 357.6):

70. [83]

    Ms Derkos said it was about a week after that when Ljubica was taken to the hospital because of issues concerning her foot.

71. [84]

    Further cross-examined as to her account of that first meeting, Ms Derkos accepted that she did not know what papers Radmila or Mr Kurtovic were asking Ljubica to sign (T 357.39).

72. [85]

    She affirmed that she had only later found out Mr Kurtovic’s name, saying (T 358.4-358.5):

73. [86]

    In cross-examination she went on to say (T 358.7-359.5):

74. [87]

    It was put to Ms Derkos that her account of the papers to be signed did not happen and she was mistaken about it (T 359.7). She denied this. She agreed that she did not ask what those papers were or to see those papers; nor did she ask what the fuss was about.

75. [88]

    Pressed as to her prior knowledge of Radmila (T 359.30-359.46):

76. [89]

    Ms Derkos said that afterwards she had told Lidija that Radmila “came by” and said that Lidija seemed normal about that (T 360.3).

77. [90]

    Ms Derkos also gave evidence in chief as to a subsequent occasion when she says Radmila was at the aged care facility (to which she referred as a nursing home). Ms Derkos said that on that occasion Radmila was there (but without Mr Kurtovic) when she, Ms Derkos, arrived (T 352.2) and that Radmila had said to her that she, Ms Derkos, was “nasty” (T 352.8; 352.12).

78. [91]

    Her evidence in chief as to the occasion when Ljubica was admitted to hospital in relation to her foot (which, as noted above, in cross-examination she put as being about a week after the first visit by Radmila and Mr Kurtovic at the aged care facility) was that she received a message from the nursing home to say that Ljubica was not well, had a high temperature and that needed to see a doctor. She said (T 352.34-352.41):

79. [92]

    It appears that Ljubica was admitted to the hospital on that occasion because the evidence went on as follows, with an account of Radmila and Mr Kurtovic being at the hospital (T 352.43-353.19):

80. [93]

    In cross-examination, Ms Derkos was adamant that Radmila and Mr Kurtovic were not with Ljubica when she was taken to hospital, saying that she, Ms Derkos, was with Ljubica. She appeared to accept that Radmila and Mr Kurtovic had been with Ljubica “both before and after she was taken to the hospital” (T 357.18) but later denied that they had visited Ljubica “before and after at various times” (T 357.23). (It seemed to me that there may have been some confusion in that evidence.)

81. [94]

    Ms Derkos said that when they were in the hospital Lidija came to the hospital and that both Lidija and Radmila signed the paperwork in the hospital regarding the amputation of Ljubica’s leg (T 360.10). Asked whether those were the papers that Radmila wanted Ljubica to sign in the first place (something that appears implausible having regard to Ms Derkos’ account of that first meeting and its timing; as well as the fact that, on Ms Derkos’ account, it was Mr Kurtovic who had the papers and it seems unlikely that he, a non-family member, would have been given hospital consent papers for Ljubica to sign), Ms Derkos said that she did not know what the papers were; that all she saw was Mr Kurtovic handing or attempting to hand the papers to Ljubica (T 360.20) and that Ljubica said “I am not signing anything. Leave me alone” (T 360.25). Ms Derkos agreed that this caused Ljubica some distress and discomfort.

82. [95]

    Ms Derkos agreed that she had continued to visit Ljubica when Ljubica went back to the nursing home (after Ljubica’s leg was amputated) but said that she did so then only once (not twice) a day because her holiday was over and because Lidija was there as well.

83. [96]

    Questioned both in chief and in cross-examination as to Ljubica’s state of mind when she was in the aged care facility, Ms Derkos gave evidence that when she first visited Ljubica in the nursing home (and up to her admission to hospital) Ljubica was singing (T 349.37). She said that another lady from the Church would come and they would read the Bible and sing songs or hymns. She accepted that at some point Ljubica’s condition became worse – she said Ljubica would one day be sad and crying and the next day a bit better (T 352.24). Ms Derkos agreed that Ljubica was very upset that her foot was amputated; and that then she was no longer singing. She denied that Ljubica was not happy in the nursing home but described her as being “just a bit sad because she lost her foot” (T 361.21). That accords with Lidija’s matter of fact description of her mother’s state when in the aged care facility (T 305.36):

84. [97]

    Anticipating what is to follow in this chronology, Ms Derkos was contacted in early October 2009 by the nursing home to ask if she had picked up Ljubica. She had not. She said that she was not in Zagreb at the time.

85. [98]

    From the above, having regard to the evidence of Mr Kurtovic and Ms Derkos, there were at least the following visits to Ljubica by or on behalf of Radmila or Vase when she was in the aged care facility and hospital during the period from September 2009 to early October 2009: first, a visit by Mr Kurtovic and his cousin at the aged care facility some time in September 2009; second, a visit by Radmila and Mr Kurtovic at the aged care facility, on an occasion when Ms Derkos was with Ljubica and massaging her foot (at which time Ms Derkos says Radmila introduced Mr Kurtovic as a lawyer and said he had some papers for Ljubica to sign, which she refused to do); third, a visit by Radmila at the aged care facility (when Ms Derkos says she told Ms Derkos that she was “nasty”); possibly a further occasion when Radmila and Mr Kurtovic visited the aged care facility at or around the time Ljubica was hospitalised; and, last, an occasion at the hospital (after Ms Derkos had travelled there with Ljubica by ambulance) when Radmila and Mr Kurtovic were there (and Lidija arrived some time later) and when Ms Derkos says Mr Kurtovic again had a briefcase with him and she believes he was attempting to have Ljubica sign papers. On at least one occasion at the aged care facility and also when they were at the hospital, it appears that there was some commotion and Mr Kurtovic (and, on the hospital occasion, Ms Derkos also) was asked to leave.

86. [99]

    Also relevant to note is that Mr Kurtovic at least at first did not deny, but said he could not recall anything about, seeking that Ljubica sign some documents (at T 183ff); and that he gave evidence that there had been an attempt to organise someone, a lawyer, to try to help (when being questioned about the visit to the hospital (see the evidence referred to at [77] above)).

87. [100]

    This brings me to the events of 2 October 2009. I interpose here to observe that, depending on whose account of events is accepted, this was either a rescue mission or akin to an abduction (it was reported by Lidija to the police in Zagreb as a kidnapping – see T 305.49).

88. [101]

    It is not disputed that on 2 October 2009 Vase and Radmila went to the aged care facility in Zagreb (with Mr Kurtovic in the car – Vase says that he did not come with them into the facility but that Mr Kurtovic was there) and that they left with Ljubica in a wheelchair, without notification to anyone at the aged care facility that they were leaving with Ljubica (and not intending to bring her back) and without telling Lidija that they were so doing (see Vase’s evidence at T 65-66). They left without taking Ljubica’s dentures, glasses or any documents; without taking any medication for Ljubica; and, when they left, Ljubica was wearing her nightgown. Vase accepted that when they left Ljubica had very few belongings with her but maintained that at that point of time she did not have those things or any documents with her (seemingly meaning with her in the aged care facility) (see T 66.39-67.4). (If so, this again points to Vase having become aware at an earlier time of the February 2009 power of attorney in favour of Lidija.)

89. [102]

    On any view what occurred was that an elderly woman, recovering from the aftermath of the amputation of her leg, was taken from the aged care facility wearing her nightgown and without glasses or dentures; was transported for a number of hours by car to Sarajevo and thence by plane to Skopje to a place where her movements were severely restricted by reason of the fact that she was on the top floor of an apartment building with no lift. When one adds to this picture that Ljubica may well have been suffering some degree of cognitive impairment at the time – and I accept that this is disputed by Vase – and that at the very least she was unhappy, or distressed, at the amputation of her leg, the scenario would have all the elements of a farce were it not so dispiriting.

90. [103]

    As already noted, on Vase’s evidence, 2 October 2009 was the only occasion he went to the aged care facility. He said (at T 56.9) that he and his mother were inside with facility “and the grandmother” and volunteered that “Mr Kurtovic was not upstairs with me” (T 56.9-12). He denied that there was a lawyer in the room (T 56.50) and denied that he went there with some documents and wanted to try and get some documents signed (T 57.7). He denied that Mr Dabeski was with him or was in the room with Ljubica; and denied that Mr Dabeski was in Zagreb with him and his mother (T 57.10-47).

91. [104]

    I should add here that Vase’s account was that his intention when he went to the aged care facility was not that his grandmother should leave the facility; rather, he says “[m]y intention was to visit her and to listen what she want”. It is difficult to place any credence in that evidence in circumstances where it would appear that arrangements must have been made for a car to drive the group to Sarajevo and, on Mr Kurtovic’s account, Radmila and Vase were only in the aged care facility for a very short time (less than five or ten minutes).

92. [105]

    Vase’s evidence on this was (T 83.36-84.16):

93. [106]

    According to Vase (see T 67.22-40) when they left the aged care facility they did not drive directly to Sarajevo. Rather, they went “right away to the pharmacy” and then drove towards Sarajevo. Vase accepted that Sarajevo was approximately four hours away by car (T 67.46-68.3), again giving the explanation that his “grandmother want[ed] that” (T 68.16). He said that they drove to Sarajevo because she needed to travel back to Macedonia (T 68.30).

94. [107]

    In Sarajevo, a temporary passport was obtained for Ljubica from the embassy staff there (see T 70.38-43). Vase maintained that Ljubica spoke with the embassy staff. (This is also Mr Kurtovic’s evidence.)

95. [108]

    Then, having obtained the temporary passport, they took Ljubica by plane to Skopje, Macedonia (T 70.45-71.1). Vase says that they went first to the hospital at Skopje (T 71.40) and that his grandmother was there for about two weeks before she was released (T 72.41). He says that while Ljubica was in hospital she spoke with Mr Dabeski (T 72.49), and that he arranged this (see his affidavit of 2 November 2016 at [39]; T 73.2-29). After Ljubica was discharged from the hospital, she was taken to a unit owned by Radmila and her husband.

96. [109]

    The apartment building in which Radmila and her husband lived in Skopje was (depending on whose evidence is correct) four or five storeys high (Vase said it was four storeys – T 71.30). All agreed that Radmila’s apartment was on the top floor (see T 71.33) and that there was no lift in the building (T 71.36). Vase’s evidence is that he carried Ljubica up the flights of stairs to the apartment (T 72.2) and that while she lived in the unit she could not get up or down by herself (T 72) and relied on Radmila for food, care and medicine (and, to the extent for any time that Vase was there, on him) (see T 72). It was obvious that she was unable to move from the apartment without assistance.

97. [110]

    As to the events of 2 October 2009, Mr Kurtovic accepted, that after the hospital in Zagreb, he went to the aged care facility again but could not recall the day (T 189.25-189.27):

98. [111]

    His evidence was that he was in a car outside; it was not his car; and he was not driving the car. He said he hardly even knew the man: “I met him with one man - one man from the church”; the man was from Zagreb (T 189.39-189.43). He agreed it was someone arranged by Vase and said that they (Vase and Radmila, presumably) knew the fellow “from before”.

99. [112]

    He said that he was with Radmila and Vase when he arrived at the aged care facility in the car that they were in; he saw Vase and Radmila go into the aged care facility “yeah, they went in, they went out and they took their grandmother out” (T 190.34-190.35). He said they were not in there for a long time (T 190.41-190.48):

100. [113]

     He said that when Lidija came out she was in a wheelchair pushed by Vase; that she was probably in pyjamas or bed wear (adding that she “certainly not be naked”); he did not think she had her dentures; she had no documents and no bag or clothes. He said that he and his wife paid for glasses for her because she did not have her glasses “the first time”.

101. [114]

     Asked if he had helped Vase put his grandmother in the front seat of the car, Mr Kurtovic cavilled with its description as a car and said it was a “Mercedes station wagon - not station wagon like a kombi van with a eight seater”. He said he did not think he helped Vase with anything because Vase “took the grandmother in her - in his hands and he put here there, and then he put her wheelchair in” and they drove off straight away. He agreed that there was no contact with the Croatian police; no contact with any doctors; and no contact with any management at the aged care facility. He asserted that they (presumably referring to Radmila and Vase) asked Ljubica to sign a letter (there was no evidence of any such document) (T 192.15-192.18):

102. [115]

     Once in the car, he said that they passed the Croatian Bosnian border (although he made reference to a trip to the medical centre first). He agreed it was a four hour drive approximately (or even more) to Sarajevo (T 194.1-194.17):

103. [116]

     He agreed that, once they got to Sarajevo, they obtained some Macedonian documents for Ljubica, and said that another person drove all of them to the airport (T 194.35-195.6):

104. [117]

     Mr Kurtovic’s evidence was that when they arrived in Skopje they went to Radmila’s unit and that the next day, in the morning, they went to the hospital. (This is inconsistent with both Vase’s recollection and that of Mr Danilov, someone who had known Radmila and Vase for a number of years, and whose evidence is relied upon by Vase as independent evidence of the execution by Ljubica of the critical documents.) He thought Radmila’s unit was around four or five levels. He could not recall if it was at the top (“I - I don’t - I don’t – can’t recall, or maybe three - third or five - fifth. I don’t know”) but he said that Vase “been carrying the grandmother in his hand now” and had to take her up the stairs “each time up and down” because there was no lift. He said that it was a “two bedroom with lounge room, maybe they have kitchen with a, you know—” (T 195.29-196.1).

105. [118]

     Mr Kurtovic said that he took Ljubica to the hospital the next day “together with them, yeah” and that Vase carried her down the stairs. He could not recall how long she spent in hospital then said (T 196.20-196.29):

106. [119]

     At that time he said he and Vase were sleeping at some other person’s place in Skopje.

107. [120]

     Mr Danilov’s account of events following the removal of Ljubica from the aged care facility was that Vase telephoned him from the airport in Skopje, told him that he had brought his grandmother from Zagreb, and asked Mr Danilov to pick them up from the airport (and, Mr Danilov added, “also Veselko” – Mr Kurtovic – T 226.5). This was the first time Mr Danilov had ever met Ljubica (see his affidavit sworn 13 June 2018 at [2]).

108. [121]

     Mr Danilov said that Ljubica was in a wheelchair when he picked them up and that he quickly noticed that she “was not with a good health”; he says it was his suggestion that they take Ljubica quickly to the hospital and he did so (T 226.20-30). This corroborates Vase’s account and is inconsistent with Mr Kurtovic’s recollection. Mr Danilov was firm in that recollextion (T 240.12)

109. [122]

     Mr Danilov thought that Ljubica remained in the hospital there for two weeks (“ten to 15, 15 days, for sure”) (T 226.38). He says that in that period he saw Vase many times (T 226.42).

110. [123]

     Lidija was notified on 2 October 2009 that Ljubica had disappeared from the aged care facility (Lidija’s affidavit sworn 8 August 2017 at [45]). She contacted the police, who, to her understanding, investigated the matter. She gave evidence that the police then contacted her to say they could not take the matter further, as it was a family matter (T 306.10). Lidija says she made numerous attempts to contact Radmila, without success (Lidija’s affidavit sworn 8 August 2017 at [46]). Lidija gave evidence as to a telephone conversation with Ljubica during this period, in which she agreed that her mother had accused her of cutting off her leg. She considered her mother was irrational when she made that complaint. She denied that her mother had accused her of withholding insulin which caused her leg to be cut off (T 306.20). She agreed that her mother had accused her of putting her in a gaol but did not agree that she was locked up (or did not agree that that was what she understood Ljubica to mean) (T 307.10-307.14). Lidija also gave evidence that she “eventually spoke to Radmila” during this period, and there was a discussion regarding what were the best care arrangements for Ljubica, Lidija expressing a concern about the absence of an elevator in Radmila’s apartment, and Radmila expressing the view that Lidija had neglected Ljubica.

111. [124]

     The evidence in Vase’s case is that (either while Ljubica was staying in Radmila’s apartment in Skopje or, on Vase’s account, before then when she was in hospital in Skopje), arrangements were made for the preparation of the critical documents in the present case. Vase’s evidence is that he made the arrangements for Mr Dabeski to take instructions from Ljubica ([39] of his affidavit sworn 2 November 2016) but he insists this was done at his grandmother’s request (T 73.5ff).

112. [125]

     Vase’s account was that Ljubica spoke with Mr Dabeski on the telephone and then Mr Dabeski came to Radmila and her husband’s apartment. Vase agreed that he was there when Mr Dabeski came to the apartment, as was Radmila, his other grandmother and Mr Kurtovic. Vase thought his father, Anton (Radmila’s husband), was not home at the time. At first, he said they were all in the loungeroom (T 74). Later, he said that he and his mother were in the kitchen (T 80.39). Vase said that Mr Dabeski was there for “approximately … a good two hours”, during the whole of which time he, Vase, Radmila, and Mr Kurtovic were all there (T 74-75).

113. [126]

     Vase says that at the meeting “[t]he grandmother spoke with Mr Dabeski and she told him what to do” and then Mr Dabeski “went back where he lives and then he needed to do what he needed – he was ordered to do” (T 76.18-76.19).

114. [127]

     Vase said that then “[h]e [Mr Dabeski] came and visited the grandmother a second time” at Radmila and her husband’s place (T 76). Vase could not remember how long this meeting went and could not remember “exactly” if he was there (T 77.1-77.50):

115. [128]

     Mr Kurtovic did not recognise the name “Zarko Dabeski” but did recall a man who he said “[t]hey” called “Zare” (T 197.9). He confirmed that Zare was a lawyer. He said that he met Zare in the two weeks that Ljubica was in hospital (in Skopje). He also said that he went once with Vase to see Zare at his private house, “his house or new built house or I don’t know” (something, I might add, of which Vase gave no account in his evidence).

116. [129]

     Mr Kurtovic said that the second time he saw Zare was when he came to where Ljubica was (i.e., Radmila’s unit) (T 198.35-198.41):

117. [130]

     Mr Kurtovic said that Ljubica initiated the visit to Zare (T 198.48-200.7):

118. [131]

     Mr Kurtovic could not recall exactly how long the lawyer was there “Maybe, an hour or a bit more or something, I don’t know, I can’t recall exact time it was” (T 200.13-200.14). He agreed that one of the reasons the lawyer was there was to discuss new documents for Ljubica in favour of Vase. He said they were in something like a lounge room and that it was close to the kitchen so that everything was close to each other and you could see and hear everything (“like me and you. Not distance more than me and you” – T 200.35-200.36). He said Vase was certainly there and Radmila was probably there (“Probably. Yes, I don’t, I don’t recall” – T 200.49). He did not recall Zare producing any kind of document to Ljubica to look at, read or sign.

119. [132]

     Mr Danilov’s evidence was that he knew someone called Zarko or Zare Dabeski; he said that he met him “[w]hen we were signing at the notary office” (T 226.47) (T 227.5). As already noted, he first met Ljubica when he collected Ljubica, Vase and Mr Kurtovic at the airport; following which he said he had twice visited Ljubica at Radmila and her husband Anton’s house, as a matter of culture “to give respect and to ask for the health and the well-being” (T 227.35; T 228.47).

120. [133]

     Mr Danilov described the building in which Radmila lived as having five storeys and confirmed that she lived on the top floor and there were no lifts; he just went to the “main room” (T 228.7-18).

121. [134]

     Mr Danilov’s evidence is that he was present on one occasion at Radmila’s unit when there was discussion about Ljubica wanting to leave everything to Vase. He said (T 229.28-229.31):

122. [135]

     He said that Vase was not present during that discussion (T 229.28-35), having gone to the market to buy him something to drink. He described Ljubica as “a little bit distressed and disappointed” (T 230.44).

123. [136]

     Vase’s evidence is that Ljubica was taken to the office of a public notary in Skopje (in a car described by Vase as “my car” – see T 78.41 – driven by either him or Radmila) accompanied by Vase, Radmila and Mr Kurtovic (Mr Kurtovic described this as travelling “Like a convoy” – T 203.27) on 13 October 2009. Vase says that he was in the office (where there were two rooms) and that he could see what was happening because the door was open (T 79). He says that he knew Ljubica was going there to sign something; and that “[s]he did this” (the Macedonian Power of Attorney); and that he was given the documents (I note here that the witness used the plural) to take back to Australia (T 79.39-79.40).

124. [137]

     At T 85, Vase says that when he was at the public notary’s office he was given two documents – see T 85.13:

125. [138]

     That cross-examination led to further confusion as to precisely what Vase understood he had the previous week been asked to look for and to produce in Court (namely, the actual copy or copies of whatever was handed to him in the public notary’s office – not copies that had been made of whatever had been handed to him – see T 86.27ff). Ultimately, as I understood his evidence, Vase’s version of events is that he brought back to Australia two (certified) copies of the actual signed Macedonian Power of Attorney (that he says was signed by Ljubica before the public notary on 13 October) (T 88.15). Whether that recollection was reconstructed, based on the realisation during the course of cross-examination that there were in fact two different certified copies, is unclear. Certainly, there was nothing in the affidavit material that made clear that Vase had brought with him back to Australia two certified copies of the Macedonian Power of Attorney. (That said, the standard of preparation of the affidavit evidence in this and in many respects left much to be desired.)

126. [139]

     Vase left Macedonia on 13 October 2009. He has not ever suggested that he attended any subsequent meeting at the public notary’s office. There was in evidence a copy of Vase’s passport entry which contains a date stamp showing entry to Vienna airport on 13 October 2009 corroborating his account that he left Macedonia on that day (CB 1/143).

127. [140]

     For completeness, I note that in answer to a call for the original of the document or documents handed to Vase (at the public notary’s office), there was produced on 12 June 2018 the document later tendered as Exhibit B (and provisionally admitted subject to the evidentiary rulings to be made in relation to the critical documents). That document is clearly an original signed copy (since the signatures are in blue pen). Vase’s evidence was that he had gone through everything that he could find at home and found it (T 167.40). It appears to be the original of one of the annexures to Exhibit 6 (Ms Božinoska’s affidavit translating the critical documents).

128. [141]

     Mr Kurtovic agreed that he had gone to a meeting with the public notary. He could not recall the date. He thought it was “Two days, three days or something, four days, I don’t know” (T 202.47-202.48) after the meeting in Radmila’s unit. He gave a confident statement that he went only once to the public notary’s office (T 203.1). He said that they went by car to the office (“I went with the car. I don’t know with who, because they, they have their own car and some other fellow their own car and then each of them have their own car” – T 203.5-203.7) and he met them (Vase and Radmila) there. As noted above, he described it as like a convoy.

129. [142]

     He said that Vase and Radmila were in the office with the public notary as well as Ljubica and someone else whose name he did not know, who he said was from Macedonia and not family related. Asked whether he knew his name he said (T 204.30):

130. [143]

     He confirmed that “that lawyer” was there (Zare) and another fellow whose name was “Mice” (as noted in the transcript but my notes indicate that he had said “Mirče”). He thought the name was Mirče Danilov. He said that while he was in the office one document was signed and that he saw the document. He described it as being from the witness box to the glass on the bar table (a few metres). He was sitting on the side of a bench. He said he was there for something like between half an hour and an hour and that for the whole of the time Radmila, Vase, Zare and he were there, together with the other man (Mirče). He made no reference to a female witness.

131. [144]

     In his affidavit sworn 13 June 2018, Mr Danilov deposed (at [7]) that on 13 and 14 (my emphasis) October 2009, he attended the office of the public notary, Ljubica Molovska, in Centar-Skopje in Macedonia. Elsewhere in his affidavit (and I appreciate I am relying here on the accuracy of the translation), he referred inconsistently to “the meetings” at the public notary (see [9]) and “the meeting” with the public notary (see [10]-[11]).

132. [145]

     As to the visit to the notary’s office, Mr Danilov said that Vase called him maybe one day before to ask him to come to the notary (T 229.6-18). He “suspected” that the reason for this was to do with the discussion that he had heard at Radmila’s place (and which I have extracted earlier).

133. [146]

     Mr Danilov’s recollection of who was present at the notary’s office was not clear – he said that Vase was present when he arrived; he was not sure whether Radmila was there; he said that Mr Kurtovic was not there but thought that “after they, they came” (by which I understood him to mean that at some stage Mr Kurtovic came there) (T 230.50-231.26). He volunteered that after ten years he did not recall the details (T 231.29). He also recalled that “Violeta”, the other witness, (i.e., Letka Kostovska) was there.

134. [147]

     He described the notary’s office as being on one floor, with two rooms. He said that Vase was not present when Ljubica put her thumbprint on the document (T 231.35ff). He was clear that he had observed Ljubica put her thumbprint on a document (T 231.33). He said that Vase was in the room with the notary at one stage but then the notary told him to go out (T 232.11) but that the door was open. He said that Mr Dabeski was there “I don’t think he was right there but he was there. We were doing in that room separately” (T 232.21). He described the process of signing as follows (T 232.32-233.16):

135. [148]

     In his affidavit of 13 June 2018, Mr Danilov deposed that at the “meeting” with the public notary the “documents” were read out aloud to Ljubica and she was “request to answer whether or not she agreed with the documents that were read out to her” (at [10]); and that Ljubica said “Yes I understand that and I want to proceed with these documents”. (There is no evidence that Ljubica was given any advice, in the absence of Vase or his family, as to the legal effect or consequences of whatever was read out to her by the public notary.)

136. [149]

     Questioned as to how many times he had been to the notary’s office there was the following exchange (T 233.18-233.31):

137. [150]

     Mr Danilov said that he did not take any documents with him when he left the notary’s office but suggested that he might have taken some documents afterwards (T 239.12-239.50):

138. [151]

     Leaving aside for the moment the issue as to authenticity, it is relevant to note at this stage in the chronology of events, that it was on 13 October 2009 that the Macedonian Power of Attorney was allegedly executed by Ljubica (by her applying her thumb-print) before two witnesses (Mr Danilov and Ms Kostovska).

139. [152]

     The Macedonian Power of Attorney, dated 13 October 2009, (as translated by Ms Božinoska) relevantly provided as follows:

140. [153]

     The second document on which Vase relies (the Contract for a Gift), also purportedly prepared by Mr Dabeski and witnessed by Mr Danilov and Ms Kostovska before the same public notary, is dated 14 October 2009. Vase was adamant that this document was not one that he brought back to Australia with him; and that he was not present when it was signed.

141. [154]

     Pausing here, if the Contract for a Gift is a genuine document and was correctly dated then there must have been a second visit to Mr Dabeski’s office the day after the first – presumably entailing Ljubica being carried up and down four or five flights of stairs for a second time (by someone other than Vase, since his evidence is that he left Macedonia on 13 October 2009), at which time the same witnesses attended as had attended the day before in order for that second document to be signed and witnessed in the very same fashion as the first. That seems implausible to me. There was no explanation proffered for the need for there to be two separate occasions on which separate documents would be executed.

142. [155]

     It is also relevant to note that, at least from a lay point of view, the typescript and format of the Contract for a Gift document dated 14 October 2009 appears to be different from that of the Macedonian Power of Attorney dated 13 October 2009, and the content seems markedly different (so, for example, the repetition of allegations of illegality and fraud contained in the Macedonian Power of Attorney is not a feature of the Contract for a Gift). As to the former, this might of course be due to the manner in which the documents were photocopied. In any event, unlike the Macedonian Power of Attorney, there is no copy in evidence of the Contract for a Gift that bears an original signature or an original certification stamp.

143. [156]

     The text of the Contract for a Gift, as again translated by Ms Božinoska, was as follows:

144. [157]

     The Macedonian Power of Attorney and the Contract for a Gift are documents critical to Vase’s present claim. As noted earlier, Vase accepts that if those documents are not found to be authentic then his claim must fail (or, as put in his 6 June 2018 submissions, “these documents contain a number of essential representations which, if not authentic, the plaintiff would not advance his case further” – see [4]).

145. [158]

     Vase’s evidence is that he began carrying out repairs on the Granville property in January 2010. In the amended statement of claim (at [7]) he particularises the renovations and improvements (said to have been made in reliance on the pleaded representations) as follows:

146. [159]

     There are many difficulties with the claim by Vase as to the matters particularised at [7] of the pleading (not least that he appeared to concede in the witness box that he retains ownership of the items at (a) and (b); that there is no evidence whatsoever that he paid for the lifting device or special bed referred to at (j) and (k) – and it is much more likely that those amounts were funded by the NSW Trustee & Guardian – see the cross-examination on this point at T 140.22-140.43; and that some of the work he says he carried out would be equally consistent with his having the benefit and enjoyment, rent-free, of his grandmother’s house for a not inconsiderable period of time).

147. [160]

     Although in his affidavit of 26 July 2016 at [25], Vase deposed to having spent approximately $100,000 “on the Property and the welfare of [Ljubica]” since late 2009 until the date of her death, the only evidence of any expenditure was in the form of a bundle of receipts from stores such as Bunnings Warehouse stores, Lincraft, K Mart and Ikea, and some miscellaneous invoices (see the Annexure E to his 26 July 2016 affidavit); not all of which were legible.

148. [161]

     In any event, what is clear is that nothing could possibly be said to have been done in reliance on any representation contained in the Contract for a Gift document at a time before (on Vase’s own account) he became aware of that document. However, the time at which he became first aware of its contents was not wholly clear on the evidence. Vase’s evidence seems to be that it was not until some time after about 4 June 2016 (after he had sought unsuccessfully to speak to Mr Dabeski and had been able to make contact with Mr Danilov) that he first obtained a copy of the Contract for a Gift (see [19]-[20] of his affidavit sworn 26 July 2016) and he deposes that he received that document from Mr Danilov (see [21]) (though Mr Danilov gave no evidence of having provided a copy of that document (or any other document) to Vase).

149. [162]

     Vase was not in Macedonia on the date the Contract for a Gift was purportedly executed. He made no reference to any contractual entitlement to the Granville property or beneficial interest in the Granville property pursuant to a contract of that kind at any time earlier than July 2016 – in circumstances where it might be expected that, had he been aware of a contract purporting to leave the whole of the property to him it might be expected that he would have disclosed its existence at a much earlier time (such as when the matter was before the Guardianship Tribunal in 2010; when he lodged a caveat on the title to the property in 2010; and when he swore his affidavit in support of his family provision claim deposing to assets of only around $10,000). (Also relevant to note in this context is that from around 2010 Vase was in receipt of at least a part carer’s pension in relation to his grandmother and later a full carer’s pension.)

150. [163]

     If it is to be inferred from the above that Vase was not aware of the Contract for a Gift or its contents before June 2016 (assuming for a moment in his favour the hotly contested issue of its authenticity) then the pleading of reliance (at [7] of the amended statement of claim) in support of Vase’s promissory estoppel claim and the assertion (at [24] of his 26 July 2016 affidavit) of the expenditure of a considerable sum of money, caring for Ljubica and provision for her needs in reliance on the belief that Ljubica had given all her assets to him under the Contract for a Gift, would surely have to be understood as limited to expenditure, care or provision after around June 2016 (by which time of course, Ljubica had already died – thus making much if not all of the claimed reliance untenable).

151. [164]

     On 23 February 2010, Lidija entered into a contract for sale of land in respect of the Granville property. That contact did not proceed to settlement apparently because, on 16 March 2010, Vase lodged a caveat in respect of the Granville property (see his affidavit sworn 2 November 2016 at [58]; CB 2/1063), claiming an equitable interest in the property in the following terms:

152. [165]

     As to the facts by virtue of which the said equitable interest was claimed, the caveat noted:

153. [166]

     As adverted to above, it is to be noted that there is no assertion here that the Granville property, or any interest in that property, had been transferred to Vase or (despite the bald claim in the name of Vase to an equitable interest) that he had a beneficial interest in the property. Rather, the caveat appears to be asserting the registered proprietor’s (i.e., Ljubica’s) wishes in relation to the property. Questioned about the lack of reference to the Contract for a Gift in the caveat, Vase’s answer was a dismissive “That’s what is written” (see T 94.44-95.4).

154. [167]

     Ljubica returned to Australia with Radmila on 19 April 2010 and lived for a short period with Radmila and Vase in Vase’s rented two bedroom unit at Brighton-Le-Sands. Vase said that he slept on the lounge and that he had flexible working hours so that he could assist his grandmother as necessary. Ljubica was wheelchair bound by that stage (T 119.17). The unit was on the first level accessible via stairs so that Ljubica needed assistance to leave the apartment.

155. [168]

     In May 2010, Ljubica, Radmila and Vase all moved into the Granville property, where Ljubica remained until her death on 17 November 2014. Vase’s evidence is that he carried out work on the property in May 2010 (see his affidavit sworn 2 November 2016 at [72]). He commenced to receive a part carer’s pension in June 2010 (see his affidavit at [99]). (The receipt of a carer’s pension is somewhat inconsistent with the allegation in the pleading as to reliance on the alleged representations by reference to assistance provided to Ljubica with the cost of living but it is conceivable that there was a shortfall and I will come back to the issue of reliance in due course.)

156. [169]

     In cross-examination, Vase seemingly reluctantly conceded that it was “convenient” to be in the Granville property with more space (T 121.15). Vase resisted accepting the proposition that he did not pay any rent (see T 121.27; T 122.7-37) but it appears not to be disputed that he did in fact not pay any rent or occupation fee in respect of the Granville property until orders were made in these proceedings in relation thereto in late 2016. Insofar as he referred in the witness box to a document as setting out his grandmother’s wishes as to what was to happen in that regard, my observation at the time was that he was there referring to the copy of the Macedonian Power of Attorney bearing the original signatures in blue pen (Exhibit B).

157. [170]

     On 11 May 2010, an application was made by Lidija to the Guardianship Tribunal seeking orders for guardianship and financial management in relation to Ljubica; and that independent guardians and managers be appointed to manage Ljubica’s affairs (see CB 2/584). In evidence, Lidija explained that she considered it necessary to hand Ljubica’s care and management back to the government. She said in cross-examination that she felt that “elderly abuse” was occurring; and said that was why she made the Guardianship Tribunal application (T 309.9-309.11) to turn everything to the government.

158. [171]

     Vase accepts that he provided documents to the Guardianship Tribunal in connection with that application in 2010 (T 91.20-25), including a copy of the Macedonian Power of Attorney. He did not provide the Tribunal with a copy of the Contract for a Gift – his evidence is that he did not have it with him at that stage (T 92.5). As referred to above, at [19]-[21] of his 26 July 2016 affidavit Vase deposes that on about 4 June 2016 he tried to contact Ljubica’s lawyer in Macedonia to request that he be provided with copies of all documents made by Ljubica; that he was unable to speak with the lawyer but made contact with Mr Danilov; and that he received a copy of the Contract for a Gift from Mr Danilov. That last assertion seems implausible having regard to Mr Danilov’s evidence to which I have already referred (at [144]-[150] above; and see [369]-[380] below). In particular, Mr Danilov made no reference to having provided copies of any documents to Vase. He said he did not take any documents with him when he left the public notary’s office and he did not recall picking any documents up later, though he might have done. Certainly, at the time Mr Danilov first signed an affidavit in these proceedings it appears that he did not have copies of the Macedonian Power of Attorney or Contract for a Gift with him (and it is a moot point whether any such copy was annexed to his affidavit at that time – see [376] below).

159. [172]

     On 26 October 2010, the Tribunal made a limited guardianship order under the Guardianship Act 1987 (NSW) in respect of Ljubica, appointing the Public Guardian (the office now held by the NSW Trustee & Guardian) as Ljubica’s guardian for a period of 12 months and giving the guardian custody of Ljubica to the extent necessary to carry out the functions there nominated (namely the making of decisions about access, accommodation, health care, medical and dental consent, and services in relation to Ljubica (see CB 2/579)). On the same day the Tribunal made a financial management order under that Act, committing the management of Lidija’s estate to the NSW Trustee (see CB 2/581).

160. [173]

     An interim Guardianship Order was apparently earlier made but revoked on 25 October 2010 (see letter dated 18 June 2013 from the NSW Trustee & Guardian to the Guardianship Tribunal (Exhibit D) reporting in advance of a hearing in the Tribunal on 1 July 2013). From that report, it appears that, since the financial management order was made, the NSW Trustee & Guardian had attended to payment of, among other things, allowances of some $18,900 to Ljubica, as well as Council rates of $2,101.47; house insurance of $2,257.07; and medical equipment of $3,025.50. This is relevant when considering Vase’s claim to have expended various moneys on behalf of Ljubica in that period (in particular – see at [25] of his 26 July 2016 affidavit) (see his closing submissions at [14]ff; and my consideration from [504]ff) below).

161. [174]

     Vase commenced to receive a full carer’s pension in May 2013 (see his affidavit at [101]).

162. [175]

     Ljubica died on 17 November 2014. It appears that almost immediately thereafter Vase sought legal advice because there was in evidence a copy of an email sent by Vase on 19 November 2014 to a solicitor (Ms Josephine Muscolino of CMM Quay Legal Group), headed “Re: Concerning Legal Procedures” (Exhibit 11), attaching a copy of a translation of the Macedonian Power of Attorney (which appears to be headed Power of Attorney and seems to be a different translation of the Macedonian Power of Attorney from that contained in Exhibit 6). In that email, Vase stated that:

163. [176]

     Pausing here, the apparent belief by Vase expressed in this email that the Macedonian Power of Attorney was a final will and testament is inconsistent with the suggestion that prior to Ljubica’s death he had any interest in the property (and inconsistent therefore with any belief from 2009 that the property was already his – which seemed to be the thrust of his evidence in cross-examination when questioned about the non-payment of rent during the period he occupied the property from 2010).

164. [177]

     By email sent on 20 November 2014 (Exhibit 12), Ms Muscolino responded to Vase, among other things, that:

165. [178]

     Ms Muscolino then referred Vase to her husband (the solicitor who represented him when the proceedings were later commenced seeking an order for provision out of Ljubica’s estate) to assist “and do whatever is possible to stop you being thrown out of the house”.

166. [179]

     In the witness box, Vase did not recall clearly the advice given by Ms Muscolini but accepted that it was put in the email (see T 99). He accepted that he had received the email and read it but suggested that he might have had difficulty understanding what he received (see T 101). Whether or not he understood at the time the advice he had received from Ms Muscolini, the above communications are revealing to the extent that they expose very clearly what Vase’s belief was at that time – namely that the Macedonian Power of Attorney was in substance or effect a testamentary document, operating to confer on him an interest (as beneficiary under a valid will), in respect of the property on Ljubica’s death (but not before). That is inconsistent with a belief that, as from 13 October 2009 when the Macedonian Power of Attorney was signed, the Granville property was his or belonged (in equity) to him. I will revert to this in due course.

167. [180]

     To anticipate the submissions later advanced for Lidija, I note that it was put to Vase in cross-examination (and at least at first seemed to be accepted by him at T 103.49) that it was only after 23 March 2016, when he realised that he was going to get nothing that he sacked his then lawyers, hired new ones and “suddenly” gave them the Contract for a Gift document. As to the time at which he realised that he would “get nothing” out of the family provision claim, I note that he said in this context that there had been some discussion prior to the 23 March 2016 settlement conference, which may suggest he had received advice at an earlier stage as to the lack of prospects of his family provision claim (T 103.38-103.40):

168. [181]

     In any event, Vase’s evidence was that when he started with the (new) lawyer he “started from the start, all over again, with all the documents, with all the things we had in our hands”. Presumably, that included the Contract for a Gift document that Vase says he received from Mr Danilov after around 4 June 2016.

169. [182]

     Following Ljubica’s death, probate was granted by this Court on 12 March 2015 of Ljubica’s will dated 11 February 2009 on the application of Lidija as her executor. (There has been no challenge to the grant of probate.)

170. [183]

     Under that will, as already noted, Lidija was appointed as the executor of Ljubica’s estate and is the sole beneficiary of the deceased’s real and personal property. The bulk of the estate is comprised of the Granville property (estimated in the Inventory of Property disclosed in the grant of probate as having a value of $400,000). The estate included a small amount of money in a Westpac bank account ($450.11); moneys under management with the NSW Trustee & Guardian (in the sum of $17,568.96); and furniture and jewellery, described in the inventory as having no commercial value.

171. [184]

     It is relevant at this stage to note the history of the proceedings in this Court, which began life (as indicated already) as a family provision suit.

172. [185]

     By summons filed 11 November 2015, Radmila (as the first plaintiff) and Vase (as the second plaintiff) sought orders pursuant to s 59 of the Succession Act 2006 (NSW) for her or his maintenance and advancement in life out of the estate or notional estate of the deceased, respectively.

173. [186]

     At the time of the filing and service of the summons, affidavits dated 18 November 2015 from each of Radmila and Vase were served. Annexed to Vase’s 18 November 2015 affidavit was a copy of the Macedonian Power of Attorney (which became Exhibit C in the proceedings before me, tendered for Vase in order to to dispel any argument as to recent invention), which appears (and was conceded by Vase) to be a different copy from that contained in Exhibit 6 (by reference to where the signatures appear on the document and the placement of the thumbprint).

174. [187]

     On 23 March 2016, the parties (with an interpreter present) attended a judicial settlement conference, at the conclusion of which the parties (each represented by Counsel and solicitors) signed a document headed “Orders” which, relevantly, included the following:

175. [188]

     Those orders were not, however, formally entered into the Court’s computerised record system, JusticeLink, on 23 March 2016, for reasons that emerge by reference to the transcript of proceedings on that occasion before Hallen J (see Schedule 2 to the later judgment of Kunc J in these proceedings to which I will refer shortly). In essence, while his Honour stated that he was prepared to make orders in the terms provided for in the document signed by the parties and their respective solicitors (and indeed appeared to pronounce those orders), his Honour was not in a position to deal with Lidija’s application for approval of a release under s 95 of the Succession Act, which would have precluded any further claim by Radmila (because by then the interpreter had left the court premises). It was contemplated that an affidavit would shortly thereafter be provided by Radmila in that regard.

176. [189]

     No such affidavit was provided. Rather, by 31 May 2016, the position (as noted in orders made by Hallen J on that day) was that both Radmila and Vase wished “to resile from the agreement apparently reached on 23 March 2016”, which his Honour noted was the subject of orders signed by each of them and by the legal representative of each of the parties.

177. [190]

     On 29 June 2016, Lidija filed and served a notice of motion seeking, among other things, a declaration pursuant to s 73(1)(b) of the Civil Procedure Act 2005 (NSW) that the terms of the document annexed to the notice of motion (being the document signed on 23 March 2016) constituted a binding agreement between Radmila, Vase and Lidija (as executor of Ljubica’s estate) “to compromise the Plaintiffs’ claims against the estate of the deceased”.

178. [191]

     On 26 July 2016, Vase swore and filed the affidavit to which I have referred earlier and which it is agreed made reference for the first time to a “Contract for a Gift” alleged to have been made by Ljubica. At [24] of that affidavit he deposes to his belief that that Ljubica “had given all her assets to me”.

179. [192]

     On 6 September 2016, presumably conscious of the conflict of interest that had emerged as between Radmila and Vase, Oliveri Lawyers (the lawyers still acting for Vase at the hearing before me) filed a Notice of Ceasing to Act for Radmila.

180. [193]

     On 7 September 2016, Vase (without leave) filed electronically online a document titled “Amended Summons” that incorporated a “Statement of Claim” in the form of the document annexed and marked “C” to the Statement of Agreed Facts (Exhibit A). That document claimed in substance the same relief as that sought in the amended statement of claim which came before me for hearing – though prayer 6 in the statement of claim (seeking, in the alternative to prayers 1-5, provision for the maintenance and advancement in life of Vase out of the estate of the deceased pursuant to s 59 of the Succession Act) was ultimately not pressed before me.

181. [194]

     From a procedural point of view, the filing of an amended summons which annexed a statement of claim was unusual to say the least.

182. [195]

     On 9 September 2016, over the opposition of Lidija, Hallen J made orders and directions in the proceedings (in what was no doubt the usual busy Family Provision List) including an order that the matter proceed by way of pleadings and a direction that the plaintiffs file and serve a statement of claim by 4pm on 16 September 2016. His Honour made the following notation on that occasion:

183. [196]

     On 14 September 2016, pursuant to the directions made by Hallen J, Vase filed and served his statement of claim in the proceedings in response to which, on 21 October 2016, Lidija then filed and served a defence. Also on 21 October 2016, Lidija’s notice of motion for declaratory relief as to the binding nature of the settlement reached at the judicial settlement conference was listed for hearing in the Family Provision running list commencing on 15 February 2017.

184. [197]

     By consent on 21 October 2016 (see Exhibit 9), orders were also made by Hallen J putting in place a regime whereby Radmila and Vase were to be entitled to continue to reside in the Granville property and Vase was to pay an occupation fee in the sum of $460 per week, to be placed into a controlled monies account in the joint names of the respective solicitors of Vase and Lidija, and to be used to pay rates, expenses and outgoings in respect of the property.

185. [198]

     By notice of motion filed on 24 January 2017, Vase (supported, according to Kunc J, by Radmila – see [12] of his Honour’s reasons referred to below) sought orders including a declaration that the 23 March 2016 document was null and void and of no force and effect (for various reasons including that the plaintiffs “did not know of existence of document dated 14 September 2009 headed ‘Contract for Gift’ that purports to revoke all prior wills of deceased and further disposes of all the property of the deceased, the subject of the mediation” – see particular (iii) to prayer 1 in the notice of motion); and further and in the alternative, that the “Purported Mediation Agreement” “is rescinded because parties relied upon the fact that the [Granville property] formed part of the estate of the deceased when in fact it had been disposed of under the said ‘Contract for Gift’, the subject of the mediation” – see particular (iv) to prayer 1 in the notice of motion.

186. [199]

     Lidija’s notice of motion was heard by Kunc J in the Family Provision running list on 15, 16 and 17 February 2017. On 17 February 2017, Kunc J delivered an ex tempore judgment (Antova v Bokan [2017] NSWSC 115), concluding that the family provision settlement agreement reached on 23 March 2016 was binding and should be enforced but staying the orders enforcing that agreement “pending the determination of a late claim” by Vase (see [1]), that in practical terms would render the agreement nugatory (see [74]). The enforcement orders were stayed on the basis that, balancing the opposing considerations referred to at [73] and [74], justice required this (see [75]). His Honour noted (at [13]) that Counsel for Vase had abandoned “Particulars 1, 3 and 4” (Particulars 3 and 4 being a reference to (iii) and (iv) as extracted above).

187. [200]

     The “late claim” to which his Honour there referred was that comprised in the statement of claim that had been filed by Vase, in which he contended that he was beneficially entitled to the Granville property (see [71]). Of that late claim, Kunc J said at [72]:

188. [201]

     “Extraordinary” seems to me to be something of an understatement in all the circumstances, but I will return to this aspect of the matter in due course. What should here be noted is the reference by Kunc J to an admission by Vase that he had known of the gift contract since 2009. At [24] of his Honour’s reasons, his Honour accepted, as admissions against interest, statements made by Vase in his affidavit of 2 November 2016 (at [38]-[42] of that affidavit; while that affidavit was read in the proceedings before me, relevantly [40] and [41] of the affidavit were not read). Insofar as Kunc J relied upon what was said at [41] as an admission by Vase that he had known of the “gift contract” since 2009 (see his Honour’s reasons at [24]), there was therefore no such admission in the proceedings before me (and, as indicated earlier, it was not clear to me, after hearing all the evidence, precisely when Vase now asserts that he first became aware of the Contract for a Gift document or its contents).

189. [202]

     An interesting question might thus have arisen as to whether any admission made in the proceedings before Kunc J could be withdrawn without leave when the matter came before me for hearing (in the same set of proceedings). However, that was not debated and ultimately (although much was made in the debate as to authenticity of the relevant documents of there being a finding by Kunc J that Vase had known of the basis for his present claim – namely the “gift contract” – since 2009) the only relevance of this issue (in circumstances where I do not accept that the Contract for a Gift is an authentic document) would be in relation to the Anshun estoppel/abuse of process or like defences.

190. [203]

     The orders made by Kunc J on 24 February 2017 included an order dismissing Vase’s notice of motion filed 24 January 2017 (and that the plaintiffs pay Lidija’s costs of that motion on an indemnity basis) and a declaration that Radmila and Vase had compromised or settled their respective claims against Lidija (in her capacity as executor of the deceased’s estate) on the basis of the 23 March 2016 proposed orders. In relation to the respective claims for family provision, his Honour made orders as contemplated by the agreement reached in March 2016 but stayed the entry of the family provision orders pending resolution of Vase’s statement of claim or until further order of the Court.

191. [204]

     As to the costs of Lidija’s 29 June 2016 motion, his Honour ordered that the plaintiffs pay those costs on the ordinary basis up to and including 7 December 2016 and on the indemnity basis on and from 8 December 2016. The reason for the indemnity costs order was that Vase had failed to accept a settlement offer in relation to the two motions in circumstances where Kunc J considered the refusal of that offer to be unreasonable (see [40] of his Honour’s subsequent decision on an application by Lidija for gross sums costs, which makes this clear – referred to below).

192. [205]

     On 4 April 2017, Kunc J heard an application by Lidija for a gross sums costs order in relation to her costs of the respective motions. On 8 May 2017, his Honour ruled (Antova v Bokan (No 2) [2017] NSWSC 556) that a gross sum costs order should be made in relation to Lidija’s costs, in the amount of $91,180.02. As to whether those costs should be payable forthwith, his Honour considered that they should be payable forthwith by Radmila but not by Vase. A similar order was made in relation to the costs of Lidija’s application for a gross sum costs order, those costs being assessed at $10,570 inclusive of GST and ordered to be paid by Radmila and Vase (payable in the case of Radmila forthwith but not payable forthwith in the case of Vase). The difference in the costs payable forthwith orders was that in Vase’s case this was consistent with him being given the opportunity to prosecute his statement of claim (see [5]).

193. [206]

     With that not uncomplicated litigious background, the matter then came before me for directions on 1 February 2018, having been referred to me in circumstances where the estimated duration of the hearing was then somewhere between 5 and 10 days and it was anticipated that there would be witnesses from overseas and a need for translators in relation to some of the witnesses. I initially listed the matter for hearing before another judge in the Equity Division for 9 days commencing on 5 June 2018 but continued to case manage the matter, listing it for directions before me on 11 May 2018 for that purpose.

194. [207]

     Counsel for Lidija quite properly raised concerns as to the position of Radmila, who was at that stage still named as the first plaintiff in the proceedings and was no longer represented by the solicitors acting for Vase, and whose position would be adversely affected if Vase were to succeed on his constructive trust claim (since the thrust of the family provision settlement was that Radmila was to receive 42.5% of the estate but the bulk of the estate was comprised of the property said by Vase to be held on constructive trust for him). I indicated on that occasion that Radmila should be notified of the status of the proceedings and, in particular, that I was concerned that she be advised as to the need for independent legal advice given the apparent conflict between her interest under the orders for family provision (whereby she would have an interest in 42.5% of the Granville property) and Vase’s claim to a 100% interest in that property.

195. [208]

     It subsequently became necessary to change the fixture of the matter and, at a directions hearing on 21 February 2018, I changed the listing of the matter, fixing it before me instead, and re-scheduled the pre-trial directions hearing.

196. [209]

     The matter then came back before me on 27 February 2018. On that occasion, Counsel for Vase confirmed that Radmila had been advised as to the conflict of interest issue. Leave was sought and granted to file in Court an amended statement of claim (removing Radmila as a plaintiff and naming her as the second defendant) and a submitting appearance from Radmila in respect of that amended statement of claim.

197. [210]

     However, the main purpose of the listing on 27 February 2018 was to hear an audio-visual link application made on behalf of Vase for certain evidence (namely, evidence from Mr Dabeski) to be taken by way of audio-visual link (which application had first been adverted to at least before me on 21 February 2018) (see below).

198. [211]

     The application by Vase for evidence to be given by audio-visual link, which was supported by an affidavit sworn by Vase’s solicitor, Mr Emanueli Oliveri, on 23 February 2018, was opposed by Lidija. Mr Oliveri’s affidavit was read on that application (although annexure A to the affidavit, being an affidavit of Zarko Dabeski sworn 13 December 2017 was admitted not as evidence of the truth of its contents but only to the fact that the affidavit had been sworn by him). Mr Dabeski, it will be recalled, is the lawyer before whom it is alleged the critical documents were signed (the Macedonian Power of Attorney and Contract for a Gift). Mr Oliveri’s affidavit deposed to Mr Dabeski having provided a medical report stating he had a phobia of flying that might preclude his attendance in Court in person.

199. [212]

     The position of Vase on this application was that Mr Zarko Dabeski “had become” a material witness in the matter. I was informed by Counsel for Vase that there had been an attempt to locate him originally but there had been “some difficulty”. It was said that (T 2.45-3.12, 27 February 2018):

200. [213]

     The application was opposed on the basis that it would not be in the interests of justice and it would be unfair to Lidija for a number of reasons.

201. [214]

     First, on the basis that the authenticity of the relevant documents was in issue in the proceedings (it being noted that this had been raised in the original defence filed 21 October 2016 – i.e., well before the filing of the amended defence), and the person who is said to have drafted these documents is Mr Dabeski. Thus that suggestion by Counsel for Vase that Mr Dabeski had only “become” a material witness when the amended defence was filed was hotly disputed.

202. [215]

     In that regard, it was noted that a Notice to Produce had been served on Vase in July 2017 seeking production of the original of the documents annexed to Vase’s affidavit of 2 November 2016 that had been read in the proceedings before Kunc J - those documents being the Macedonian Power of Attorney and the Contract for a Gift referred to and extracted in part in his Honour’s first set of reasons (at [24]-[25]). Nothing was produced in answer to that notice to produce. Vase’s solicitors, by letter dated 4 August 2017, gave what I regard to be the wholly unsatisfactory response (particularly since authenticity of the documents had been in issue from the filing of the original defence) that there was no legitimate forensic purpose in seeking access to the original documents when legible copies had already been served.

203. [216]

     Pressed, by letter dated 8 August 2017, in relation to the issue of the documents, Vase’s solicitors responded on 10 August 2017 that:

204. [217]

     I interpose to note that there was nothing before me at any stage to suggest that the critical documents had been lodged by Mr Dabeski (or anyone else) with any court in Macedonia. The highest the evidence goes is that there were documents certified by a public notary in Macedonia. What happened to the original certified copies was unclear – though the late production of a certified copy of the Macedonian Power of Attorney bearing original (not copy) signatures suggests that the original certified copies (or at least not all of them) were not retained by the public notary. Nor did the letter of 8 August 2017 state the basis for the belief there expressed.

205. [218]

     Emphasis was placed by Lidija in this context on what was said to be the finding by Kunc J (at [72] of his Honour’s first set of reasons) that Vase had been aware of the “gift contract” since 2009. Counsel for Lidija pointed out that it followed that at the time of the March 2016 judicial settlement conference Vase had known about the Contract for a Gift and yet he had said nothing about it; and the first time that it had appeared in a pleaded case was when Vase’s statement of claim was filed in September 2016. (Pausing there, it was in this context that I queried with Counsel whether an Anshun estoppel had been raised by the defence – in other words, a pleading that it was unreasonable for Vase not to have raised any issues in relation to this alleged gift contract in the context of the Family Provision proceedings – a matter to which I will return in due course.)

206. [219]

     What was submitted for Lidija at the time of the audio-visual link application was that Vase had known about the existence of the document(s) and his lawyer’s involvement therein since 2009. Thus, to the extent that there was a suggestion being made for Vase that the need for evidence from Mr Dabeski only arose from something pleaded in the amended defence, it was submitted that this could not be correct. That suggestion arose from the evidence relied upon in support of the audio-visual link application, namely the statements by Mr Oliveri in his affidavit (at [3]-[4]) that:

207. [220]

     The submission for Lidija was that authenticity of the Contract for a Gift had at all times been in issue.

208. [221]

     It was also noted that a direction had been made by Kunc J that the plaintiffs serve a list of the affidavits they intended to rely upon but that the plaintiffs’ list (by letter on 26 May 2017) did not include Mr Dabeski.

209. [222]

     Second, Lidija put submissions against the audio-visual link application by reference to the particular forensic issues arising as to the authenticity of the critical documents. I was taken to copies of the Macedonian Power of Attorney document, one at annexure “VA10” to Vase’s affidavit sworn 2 November 2016 and one at annexure “A” to the affidavit of Ms Božinoska sworn 21 April 2017, in the original Cyrillic script (i.e., not the translations) to compare the position of the thumbprint (it appearing in a slightly different position on each of those two “copies”). It was noted that there was nothing in the evidence that suggested that Ljubica had signed multiple copies of the document (though, as the evidence ultimately emerged, it seems likely that more than one copy of the Macedonian Power of Attorney was signed and certified – see [147]ff above). It was submitted for Lidija that on the face of those copies (by comparing aspects of the thumb-print “signature”) it appeared that they were different documents. Counsel for Lidija submitted that:

210. [223]

     Third, issues were raised as to an affidavit of the translator (Ms Aneta Menoska) who deposed to having translated Mr Dabeski’s affidavit (read only for the purposes of the audio-visual link application – not read at the final hearing) (see the affidavit of Ms Aneta Menoska sworn in December 2017). It was pointed out that Ms Menoska used the word “her” in connection with Mr Dabeski (at [7]) and that the affidavit suffered from significant formal irregularity (being a lack of attestation to the swearing of the affidavit). Indeed, the affidavit sought at that stage to be relied upon in Vase’s case from Mr Dabeski (the affidavit sworn 13 December 2017) was one where he appeared to sign as witness to his own affidavit.

211. [224]

     In summary, complaint was made that the affidavit sought to be relied on from Mr Dabeski was not properly sworn; that there was no indication as to whether Mr Dabeski spoke English, whether he actually required an interpreter; or when the affidavit was obtained (it was dated 13 December); and no date other than a reference to December 2017 on Ms Menoska’s affidavit.

212. [225]

     Annexed to Mr Oliveri’s affidavit was a “specialist’s report” relied upon as evidence of what Mr Oliveri described as Mr Dabeski’s “real phobia of flying”. Complaint was made at the hearing that it was not clear when the report was obtained; when the specialist psychiatrist (Dr Stavre Gramov) was first consulted; what history was given to the psychiatrist or the like. The report commenced with the words “[i]nstructions for further treatment of the insured person”. It is stated to be a Specialist’s Report for “Zharko Dabeski” (he apparently being the insured person to whom reference was made therein).

213. [226]

     For Vase, it was submitted that Mr Danilov and Ms Kostovska would be coming to Sydney to give evidence (in fact, Ms Kostovska eventually did not attend to be cross-examined and her affidavit was not read) and that they were present as independent witnesses at the time Ljubica signed the document by putting a fingerprint on the document: “so they will be coming to court, they will be cross‑examined, and we will be relying on them in so far as the authenticity of these documents were not admitted by the defendant in the first defence” (T 17.16-17.18 (27 February 2018)).

214. [227]

     Reference was made for Vase to the particulars of the “Actual Undue Influence Claim/Unconscionable Conduct Claim” in the amended defence filed 8 September 2017 at [7J(i)], in that they included:

215. [228]

     It was submitted that more than the authenticity of the documents was being put in issue by Lidija – namely, the capacity of Ljubica to give proper instructions at the production stage of these documents; and that Mr Dabeski’s affidavit addressed that issue, insofar as he had deposed (at [13] of his affidavit sworn 13 December 2017) that the deceased “appeared to have the intellectual and legal capacity”.

216. [229]

     Counsel for Vase accepted that there was an advantage to a cross-examiner being able to put documents to the witness in the witness box, particularly where issues of the kind raised in the course of argument were to be put to the witness or where the ability of the witness to speak English was to be tested; but maintained that, as against this, there must be weighed the disadvantage to the plaintiff of being denied the opportunity of being able to present this witness to the Court (it being said that there was no means of compelling Mr Dabeski to give evidence since he was not within the jurisdiction of the Court).

217. [230]

     The difficulty I had was that I considered that there were forensic issues that would need to be tested with this witness, and I foresaw real difficulties for the first defendant being able to test those issues in cross-examination via video link, let alone for me being able to form a proper assessment of the witness if his cross-examination were to be by way of audio-visual link. I considered that there were a number of unsatisfactory aspects in relation to the way Mr Dabeski’s affidavit had been prepared (not least that he had seemingly witnessed the execution of his own affidavit); and there were a number of issues that might well need to be explored with him, such as how he received his instructions; what those instructions were; and the basis on which he had formed the views that he asserted, in very generalised and broad terms in his affidavit, as to the capacity of Ljubica at the time and the asserted lack of duress. (What was not apparent to me then, but is even clearer in hindsight, was that a critical issue would have related to the circumstances in which the Contract for a Gift came into existence and was executed.)

218. [231]

     From the bar table I was informed by Counsel for Lidija, for completeness of disclosure, that her legal representatives had sought to make their own enquiries and to make contact with Mr Dabeski but had not obtained any response.

219. [232]

     I raised at that time the prospect that some attempts might be made to make Mr Dabeski available to Lidija’s legal representatives (say, for some form of a conference in order to enable them to satisfy themselves as to some of the issues that had been raised). I considered that there was still time between the date of the application and the date of the hearing for Vase’s representatives to try to address the concerns that had been raised as to the inability of Lidija’s representatives to make contact with Mr Dabeski; as well as time to consider whether other procedures might be available to enable evidence taken in Macedonia or in some other way, such that the ruling against the audio visual link would not of necessity deprive Vase of the ability to obtain evidence from this witness.

220. [233]

     For those reasons, I rejected the application by Vase (brought pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW)) for Mr Dabeski to be cross-examined via audio-visual link. (See in that regard, s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).) I ordered that costs of the application for evidence to be taken on audio-visual link be the first defendant’s costs in the cause.

221. [234]

     After my ruling on the audio-visual link application, Counsel for Lidija indicated a desire to amend the defence to plead the issue of an Anshun estoppel that I had raised in the course of argument (simply, I might add, to ascertain whether there was such a pleading, not having had a proper opportunity by that stage to absorb the state of the pleadings). This was characterised as opportunistic (and opposed) by Counsel for Vase, who suggested that an issue estoppel would arise in relation to any Anshun estoppel claim because of the ruling made by Kunc J (to which I have referred above) that it was in the interests of justice to stay the family provision orders until determination of the constructive trust claim.

222. [235]

     In circumstances where an amended statement of claim had only recently been filed, I considered the appropriate course was to direct the filing and service of a defence to that amended statement of claim by 6 March 2018 and I directed that any further evidence by Vase in response to any new matter that might be raised in the defence to the amended statement of claim should be filed and served by 27 March 2018, together with any reply.

223. [236]

     On 14 March 2018, there came before me a motion by Vase for there to be determined, as a preliminary and separate question, the issue raised by the pleading in the further amended defence that had then been filed of an Anshun estoppel or abuse of process defence. Counsel for Lidija indicated that he saw some merit in a preliminary question to determine that issue but submitted that it ought to be dealt with on the basis of a statement of agreed facts.

224. [237]

     Having regard to the discussion in Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215 at [7] and Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142, I was concerned that any such separate question might involve a determination of matters, such as the reasonableness of the conduct of Vase in not raising the gift contract issue at an earlier stage, which would be likely to arise at a later stage of the proceeding.

225. [238]

     In response to my articulation of that concern, Counsel for Vase informed me that if what I will call the Anshun issue were to be heard as a separate question, he would not invite any consideration as to the reasonableness of Vase not bringing the contract claim at an earlier point and would not submit that Vase had acted reasonably in not bringing the claim at an earlier stage or could not have brought the claim at an earlier stage. Rather, Counsel for Vase informed me that all that was sought to be addressed would be a matter of law; more precisely, he identified two questions of law: one being that the principles of Anshun estoppel can only apply with respect to earlier proceedings (and that this, properly speaking, is not an earlier proceeding but still the one proceeding; it being said that the appropriate amendments were made at the appropriate time and leave was given in the one proceeding); and the second being that there is a distinction to be drawn where a plaintiff has not pleaded a certain cause of action in the earlier proceeding and wishes to bring it in a subsequent proceeding, as opposed to the situation where a defendant does not raise a defence in an earlier proceeding.

226. [239]

     It was said by Counsel for Vase that (T 8.20-10.37, 14 March 2018):

227. [240]

     The third issue sought to be raised by Vase in opposition to the Anshun estoppel argument was that there was an issue estoppel arising by reference to the judgment of Kunc J staying the enforcement of the family provision orders (and that any Anshun estoppel should have been raised at that point).

228. [241]

     I was not satisfied that this was an appropriate case for there to be a separate determination because I was concerned that, while it had been presented as an issue of law that could be determined on the basis of an agreed statement of facts, once the debate commenced in relation to it there would be other matters thrown up that might well involve issues in relation to the proceedings (including the issue estoppel argument in relation to Kunc J’s stay of the enforcement of the orders reflecting the family provision settlement).

229. [242]

     Accordingly, rather than making an order for the preliminary determination of a separate question I accelerated the commencement of the final hearing on the basis that argument would be heard first as to the Anshun estoppel or abuse of process point (making it clear that I might not necessarily make any ruling at that stage, in which case the matter would simply proceed part-heard when it had otherwise been listed to commence).

230. [243]

     The two points of law to be argued as I understood it were, first, whether Anshun estoppel was confined to a situation where there are two sets of proceedings (as opposed to a claim brought in proceedings that were commenced by way of summons where all of that has been dealt with and now this is in effect a new claim but brought under the same matter number) and, second, as to whether or not an Anshun estoppel could apply where the party against whom it is raised is the plaintiff.

231. [244]

     That was the basis on which the case commenced on 12 April 2018, though at that stage Vase sought only to argue the first of the two points that had been articulated (and, to the extent that it arose, the issue estoppel point in its reply); abandoning the argument that an Anshun estoppel could not be raised against a plaintiff.

232. [245]

     As this issue was argued first, and is logically anterior to a determination of the merits of Vase’s claim, I will deal with this first when I come to the determination section of these reasons. For present purposes, I simply note that I was not persuaded on 12 April 2018, having heard argument from both sides, that I was in a position to make a concluded ruling on that point (however desirable, from a practical perspective, that this might be: to Vase, in that one way or the other it would obviate the risk that he might incur the expense of bringing witnesses out from Macedonia only to fail at the end of the hearing on the Anshun estoppel or abuse of process issue; to Lidija, in that if there were to be a ruling in her favour of the Anshun estoppel point would obviate the need to incur the cost of a contested hearing at first instance).

233. [246]

     Moreover, as it has since transpired, I do not accept that it would have been appropriate to determine the Anshun estoppel issue as a discrete legal issue having regard to the questions raised as to what had in fact occurred on 23 March 2016 (in relation to whether orders were in fact made on that occasion) and, more problematically, in circumstances where any abuse of process argument ultimately fell to be determined having regard to the evidence in the proceedings as a whole.

234. [247]

     The upshot of the argument on 12 April 2018 was that I stood the balance of the matter over, part-heard, to 24 May 2018 for evidentiary directions (in case more time than usual was necessary for rulings on the evidentiary objections – a concern which proved prescient).

235. [248]

     On that occasion, objection was raised by Lidija to the admission of the Macedonian Power of Attorney and Contract for a Gift documents (wherever they appeared in the annexures to the various affidavits) on the basis that they were photocopies and not admissible (there having been non-compliance with a notice to produce the originals of these documents, and their authenticity being in dispute). Counsel for Vase then sought and obtained leave to adduce further evidence in relation to the relation to the issue of the whereabouts of the “original documents” in response to the objections made as to the admissibility in evidence of the copies thereof.

236. [249]

     The ruling on those evidentiary objections was then stood over to 30 May 2018, on which occasion I heard argument, among other things, on the admissibility of the relevant copy documents: namely, the Macedonian Power of Attorney (appearing as annexure VA10 to Vase’s affidavit sworn 2 November 2016, and elsewhere) and the Contract for a Gift (appearing as annexure VA6 to that affidavit, and elsewhere) which appeared in various places in the affidavit evidence.

237. [250]

     Tendered on that occasion by Counsel for Lidija, not for the truth of its contents but for the fact that it was made, was an affidavit sworn 21 April 2017 of the translator, Ms Božinoska, who had translated each of those documents (Exhibit 6 on the leave application). I was taken to the documents annexed to that affidavit for the proposition that the thumbprint “signature” appeared at slightly different places on different copies of the respective documents.

238. [251]

     Vase sought to rely on a notice served on 25 May 2018 (see Exhibit 8 on the leave application) for the purposes of s 67 of the Evidence Act 1995 (NSW) (objection being raised by Lidija as to the non-compliance of that notice with the requirements under r 31.5 of the Uniform Civil Procedure Rules). An affidavit sworn 25 May 2018 by Vase, deposing among other things to his communications with Mr Dabeski, was read.

239. [252]

     Counsel for Vase sought to read Mr Dabeski’s 13 December 2017 affidavit without Mr Dabeski being made available for cross-examination pursuant to s 63(2) of the Evidence Act. Objection to such a course had been given by notice pursuant to s 68 of the Evidence Act. After brief argument on the point, the matter was deferred to the start of the hearing (given that Vase’s legal representatives were still uncertain whether Mr Dabeski might physically attend) (T 49.20, 30 May 2018).

240. [253]

     In his 25 May 2018 affidavit, among other things, Vase deposed (at [4]) to the occasion on which he had taken Ljubica to the public notary’s office “to provide the Power of Attorney”. Vase deposed that he waited in a reception area with the public notary’s secretary while Ljubica went into an adjoining room with the public notary, Mr Dabeski, Mr Danilov and Ms Kostovska; that he was able to see inside the adjoining room; that he could not clearly overhear the conversation inside the room but through the open door he was able to see Ljubica “place her thumbprint on a number of documents” and to see the public notary, Mr Danilov and Ms Kostovska sign those documents. He deposed (at [5]) that “[a]fter some time” those people exited to the reception area and he recalled seeing the public notary hand “a document” to the secretary, who began making photocopies of “that document”. He deposed that the public notary handed to him “a copy of the document, which was the Macedonian Power of Attorney” and that a copy was also handed back to Mr Danilov and Ms Kostovska; and that the secretary handed the original document back to the public notary (see [5]).

241. [254]

     Vase deposed that he was not given the original of the document which the public notary had handed to the secretary; and that a copy of the document that he was given was tendered on his behalf to the Guardianship Tribunal “stamped as early as 6 September 2010” ([6]).

242. [255]

     He also deposed that the first time he received a copy of the Contract for a Gift was when Mr Danilov provided copies of documents to him on or about 4 June 2016 ([7]) and that he never received the original Contract for a Gift ([8]).

243. [256]

     Pausing there, this affidavit evidence is inconsistent with Vase’s oral evidence in the witness box. He there appeared to give evidence that he received more than one copy of the Macedonian Power of Attorney on 13 October 2009: at T 22.9; 24.21-25.4; 30.44-31.1. It is also difficult to reconcile with the fact that (on the second day that he was cross-examined) he produced, in answer to a call for the actual documents he brought back with him from Macedonia, a signed copy of the Macedonian Power of Attorney bearing signatures in blue pen (and therefore not a copy but an original).

244. [257]

     Vase deposed (at [9] of his affidavit sworn 25 May 2018) that around the middle of 2017 he began making enquiries with Mr Dabeski’s office “to obtain the original Power of Attorney and Contract for a Gift for use in these proceedings”. Insofar as he produced what appears to be an original signed copy of the former (which he said he had brought back with him to Sydney) it is not clear why he would have been seeking an original from Mr Dabeski, having regard to what he said occurred on 13 October 2009; but that is perhaps the least in the series of anomalous aspects of his evidence in relation to the critical documents.

245. [258]

     Annexed to the 25 May 2018 affidavit was certain correspondence comprising a chain of emails from Vase to Mr Dabeski (Annexure A) with translations into English (Annexure B). In that chain of emails there is an email dated 7 April 2018 (p 17), apparently responding to a request by Vase in which Mr Dabeski refers to a number of Articles (50, 96, 97, 99) (of what, it is not clear) and goes on as follows:

246. [259]

     In other words, as I understand it, Mr Dabeski is there explaining that there is a procedure by which one can obtain confirmation as to the validity of the notarisation of documents by public notaries (a procedure that there is no suggestion Vase ever sought to invoke) but also that it is possible simply to obtain a copy of the certified document by application to the public notary. In other words, Mr Dabeski seems to be addressing two possibilities: obtaining a certified copy; and obtaining some form of confirmation of the validity of the notarisation.

247. [260]

     In a subsequent communication (page 13 of Annexure B) Mr Dabeski provides his response to four questions asked of him (I cannot set out the questions since Vase’s email of 24 May 2018 is wholly untranslated), relevantly including:

248. [261]

     Interestingly, in the above communication there is reference to Mr Dabeski having “composed that agreement” (in the singular not the plural).

249. [262]

     There is also, seemingly in an earlier email from Mr Dabeski but forming part of the same block of text translated by Ms Menoska on 25 May 2018, the following passage:

250. [263]

     Again, it is of interest to note that that communication seems to relate to two documents “verified that day” (not two documents verified on successive days); it seems to contemplate that Vase was a contractual party to whatever document is there being discussed (whereas he was party to neither of the documents on which he here relies); and it suggests that Mr Dabeski may not have retained a copy of the signed document(s) (insofar as he points out that he is not obliged by law to keep documents composed as a lawyer), in which case it somewhat begs the question as to how he would be in a position to confirm that he had composed the relevant document(s) (although it may be that he would have had a version of any document(s) he “composed” in some form in his files).

251. [264]

     I appreciate that there may have been difficulties in the translation of those communications but the above demonstrates the difficulty (and unfairness to Lidija) which would almost inevitably have arisen were Mr Dabeski’s cross-examination to have been conducted by audio-visual link.

252. [265]

     Insofar as this evidence was relied upon to show that the originals of the documents allegedly executed in Macedonia were not in Vase’s possession, it was left wholly unclear to me why the certified original(s) would be required to be kept by the public notary (if that is in fact what has happened) or to be lodged with the court in Macedonia (as was the stated belief of Vase’s lawyers in the August 2017 correspondence to which I have earlier referred). Insofar as reliance was placed on Vase’s affidavit as establishing that had made attempts to obtain copies of the original documents but was unable to do so, at its highest this correspondence corroborates that he made enquiries – there is nothing to establish that he sought to make a request of the public notary, let alone made any enquiry as to the procedure explained by Mr Dabeski to obtain confirmation of the validity of the “notarised act and documents”.

253. [266]

     An obvious difficulty in understanding the email communications from Mr Dabeski is that there was no evidence as to the precise questions he was asked. Although a call was made for production of those instructions, there was no production in answer to that call (perhaps not surprising since notice of the call was not given in advance). Another difficulty was in understanding the purpose (and source) of any requirement for notarised documents to be retained or lodged with the court (if any such requirement in fact exists).

254. [267]

     After hearing submissions in relation to the availability of the original document or documents, and having drawn the parties’ attention to the decision of Perram J in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 (ACCC v Air New Zealand), in which there was criticism of the approach followed by Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 (Rusu), leave was sought and obtained by Counsel for Lidija to address written submissions on that point and I deferred ruling on those parts of Vase’s affidavit of 2 November 2016 ([42] and [59]) which annexed the critical documents. (I also at that time deferred ruling on the affidavits of Ms Kostovska, Mr Danilov and Mr Dabeski – in respect of all of which there were issues as to the manner in which they had been executed and/or attested.)

255. [268]

     After receipt of the further submissions, the parties were advised by my associate that I would provisionally allow the admission into evidence (subject to relevance) of the critical documents and would rule in due course as to their admissibility. (I also note for completeness that it was foreshadowed by Counsel for Lidija that there might be a special costs order sought, whatever the outcome of the proceedings, in light of the manner in which the affidavit evidence had been filed.) I rule on the question of admissibility of the documents (and their authenticity) in the determination section of these reasons.

256. [269]

     The substantive issues in the proceedings were then heard over four hearing days, with closing submissions on 22 June 2018.

Issues

1. [270]

   The issues for determination can be summarised as follows: first, whether the statement of claim should be dismissed on the grounds of an Anshun estoppel or abuse of process, as Lidija contends; second, whether (assuming them to be admitted into evidence) the Macedonian Power of Attorney and Contract for a Gift are authentic documents, as Vase contends; third, Vase’s promissory estoppel claim; fourth, Lidija’s defences based on capacity, actual or presumed undue influence and unconscionable conduct; and, finally, Lidija’s other defences based on estoppel, laches and acquiescence.

Anshun estoppel; abuse of process; issue estoppel

1. [271]

   As adverted to above, the argument for Vase on this issue was that an Anshun estoppel is not open in the present case because this is still the first proceeding and the principles of Anshun estoppel are applicable only where there is a second proceeding. I consider that argument before addressing Lidija’s submissions as to why, if the principles of Anshun estoppel are capable of operation in the current context, such an estoppel is made out in this case.

2. [272]

   It was submitted for Vase that (even assuming there were taken to be two proceedings) there has been no final judgment given in respect of the proceeding in relation to the family provision claims – “simply a compromise between the parties … that have been entered as final orders in the Court with respect to a family provision claim”. It was also put for Vase that the time to run any Anshun estoppel defence was at the time of the entry of the orders in relation to the family provision claim; and that the same question was dealt with by Kunc J (at [1] of his Honour’s first judgment).

3. [273]

   It was submitted that what the Court was here being invited to do (by the raising of the Anshun estoppel defence) was to give a judgment inconsistent with the same question that Kunc J had finally determined – that issue being whether the second (promissory estoppel or constructive trust) claim should proceed notwithstanding the entry of final orders in relation to the family provision claims.

4. [274]

   Vase notes that, in his Honour’s second judgment (on the question of the gross sum costs orders), reference is made to the first judgment as a final judgment that would be stultified if, by making a costs order payable forthwith by Vase, this would conflict with his Honour’s earlier judgment. The essence of the issue estoppel raised by Vase was the submission that the proper mechanism to raise issues of Anshun estoppel was either before Kunc J or on appeal, but not to seek to revisit it before me on the hearing of the issues raised in Vase’s statement of claim.

5. [275]

   Vase accepts that the promissory estoppel claim he seeks here to bring is one that was brought after the compromise was reached but it is submitted that the material time for consideration of any Anshun estoppel is not when the compromise was reached but when orders were entered with respect to the compromise. It is said that at that latter time the Court was not functus officio and could consider entering the orders and the future determination of Vase’s claim as well. Thus it is submitted that what occurred is properly construed as an amendment to the pleadings before any final orders were entered (and therefore not a matter of Anshun estoppel at all).

6. [276]

   It was accepted that a claim that “cuts right across” Vase’s family provision claim (as Vase’s present claim clearly does) ought to have been made at the outset but it is said that this is not fatal to the claim now being brought (at the very late stage it is conceded it was brought).

7. [277]

   Thus the only argument ultimately pressed for Vase in relation to the Anshun estoppel point (what might be referred to as the “no judicial determination point”) was that the promissory estoppel claim is a cause of action that was introduced into the initial or principal proceedings at a time when those proceedings were still on foot and when there had been no final determination of the proceedings by way of judgment. It was submitted that (T 12.34-13.4, 12 April 2018):

8. [278]

   The above is also the basis for the claim raised by Vase by way of reply that an issue estoppel had arisen. It was submitted that, even if there were an Anshun estoppel claim able to be raised, there could now be no attack based on the lateness of the statement of claim because that was the same question that was before Kunc J, namely whether this claim should be permitted to proceed further or not, and that his Honour made a final determination of that question on the entry of the orders in relation to that family provision claim. It was said that to interfere with that decision would raise the prospect of inconsistent judgments.

9. [279]

   For Lidija, it was accepted that the language of the authorities in relation to the Anshun principle refer to its application in a context where there are separate proceedings. However, Lidija argues that this is explicable because that was the context in which those cases were concerned. It is argued for Lidija that the doctrine of Anshun estoppel was developed to deal with circumstances in which there had been the resolution of a dispute without regard to a particular issue and that “the gravamen of the estoppel is the failure to litigate an issue at a time where it ought reasonably to have been raised and determined” (see Tyne (Trustee) v UBS AG (No 2) (2017) 250 FCR 341; [2017] FCAFC 5 per Dowsett J at [11]. Thus it was submitted that application of the principle does not depend upon there being an institution of separate proceedings.

10. [280]

    Lidija argues that there is no reason why the Anshun principle cannot apply in the circumstances of this case: in particular, because the “additional” trust cause of action was only made after the compromise, as opposed to being brought within the normal course of the proceedings the subject of that compromise. It is submitted that the argument as to there being a requirement for separate proceedings might have some substance if the compromise had not occurred, as it would then be an amendment issue only, but that is not what happened.

11. [281]

    In the alternative, it was submitted that the filing of Vase’s statement of claim (initially by annexure to the amended summons filed on-line) was, in substance, a fresh proceeding both in its content and in circumstances where the family provision claims in the summons were found to have been compromised on 23 March 2016. It was submitted that it was unreasonable for Vase not to raise, in the context of the family provision proceedings, the promissory estoppel claim now raised.

12. [282]

    Finally, it was submitted that, irrespective of the application of the doctrine of Anshun estoppel, there had been an abuse of process by reference to the manner in which the promissory estoppel claim was brought (i.e., by the filing, without leave, of the amended summons annexing the statement of claim after compromise of the family provision claims had been reached in the judicial settlement conference). Reliance was placed in that regard on the observations of McHugh J in Rogers v The Queen (1994) 181 CLR 251 (at 286); [1994] HCA 42 (accepted in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, per Gleeson CJ, Gummow, Hayne and Crennan JJ at [15]) that:

13. [283]

    As to the claimed issue estoppel, Counsel for Lidija maintained that the stay by Kunc J of the operation of the orders was not a judicial determination of any Anshun or issue estoppel point; there being no issue before his Honour at that time on the question of Anshun or issue estoppel; nor did any issue estoppel arise on the making of the costs forthwith orders. (Lidija cited generally Blair v Curran (1939) 62 CLR 464 at 531-532; [1939] HCA 23 per Dixon J, as his Honour then was, as the definitive authority in relation to issue estoppel.)

14. [284]

    It is submitted that Kunc J did not determine on 17 February 2017 Vase’s entitlement to bring the trust claim or, alternatively, that this still does not preclude the agitation of the Anshun estoppel or abuse of process plea now. Lidija argues that the submission made for Vase that what Kunc J considered was whether he ought to “proceed to make final orders on the family provision claim” is not correct – rather, what his Honour did was to make final orders and simply “stay” the entry of the final orders pending “the resolution” of Vase’s statement of claim. It is submitted that such resolution does not preclude the issue currently sought to be agitated.

15. [285]

    Lidija argues that Kunc J was not determining (and says nor was he invited to determine) whether the raising of the trust claim was the subject of an Anshun estoppel or was an abuse of process; rather, his Honour was simply dealing with a concluded agreement issue pursuant to s 73 of the Civil Procedure Act and in that context considered whether there should be any conditions on terms of the compromise (as his Honour found them to be) and made the stay order.

16. [286]

    The procedural history of the matter has already been set out. Relevantly, Radmila and Vase commenced these proceedings by filing a summons on 11 November 2015 in which the only relief claimed was pursuant to s 59 of the Succession Act for provision out of Ljubica’s estate; commencement by way of summons being appropriate by reference to rr 6.3 and 6.4 of the Uniform Civil Procedure Rules (and Practice Note SC Eq 7 which refers to the “summons” commencing the family provision application); and it was not until 7 September 2016 that Vase filed online, without leave, an amended summons attaching a statement of claim that pleaded the alleged constructive trust for the first time.

17. [287]

    It is clear that a statement of claim is required where proceedings are brought on a claim for relief in relation to a trust, other than an express trust wholly in writing – see r 6.3(e) of the Uniform Civil Procedure Rules. Hence it should have been obvious to Vase’s legal representatives that the filing of an amended summons in this fashion was inappropriate and procedurally irregular.

18. [288]

    Lidija makes the following contentions against the background of the procedural history of this matter.

19. [289]

    First, that the claim set out by Vase in the statement of claim, and the basis for it was, by his own admission, known to him since 2009. In this regard, reliance is placed on the Statement of Agreed Facts– Exhibit A – at [25], but that simply records an agreement that on 17 February 2017 Kunc J delivered judgment on Lidija’s notice of motion. What Lidija is here relying on is the statement made in his Honour’s ex tempore reasons at [72] to the effect that “by his own admission”, Vase had known about the basis for his claim, being “the gift contract”, since 2009. It is not apparent to me the basis for his Honour’s reference to an admission by Vase – the affidavit evidence read before me certainly refers to the Contract for a Gift document being prepared and executed in 2009 but it is not clear whether that was knowledge that Vase admits he had in 2009 (as opposed to June 2016 when he received a copy, he says, of the Contract for a Gift from Mr Danilov). Perhaps his Honour’s reference to the admission as to knowledge of the “gift contract” is best understood as a reference to Vase’s belief (clearly stated in the witness box before me) that the Macedonian Power of Attorney (of which he was on his own account aware as at 13 October 2009 by the latest) was a document by which he obtained the whole of Ljubica’s estate.

20. [290]

    Leaving aside that issue for the moment, the first contention raised by Lidija is that Vase did not plead that claim by way of statement of claim either at the time the summons was filed (as he was required to do under rules); nor at any time prior to the compromise of the family provision claims.

21. [291]

    Second, it is contended that, subject to the stay set out in order 6 of the orders made by Kunc J on 24 February 2017, the claims made in the summons (as filed on 11 November 2015) were compromised on 23 March 2016 and therefore Vase’s claim, in substance and form, was a new claim (or alternatively was a new issue of fact and law) and it was a claim or issue that, with reasonable diligence, would have been expected to have been brought forward at the time of the filing of the summons (or at any time prior to the compromise) having regard to the nature and subject matter of summons. It is contended that it was so connected with the subject matter of the summons that it was unreasonable not to do so. Thus, it is precluded by the principle in Anshun or alternatively constitutes an abuse of process.

22. [292]

    Third, that Vase does not contend he had a reasonable basis not to include the claim now made in the summons or at any time prior to the compromise.

23. [293]

    Fourth, that the stay in order 6 operated only as a stay pending the resolution of Vase’s statement of claim and the terms of that stay did not and do not preclude the determination of the present issue before the Court.

24. [294]

    Lidija accepts that the test outlined by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (Tomlinson) is the test to be applied in respect of an Anshun estoppel plea and says it is also relevant to a defence based on abuse of process. Reference is made to the statement by Allsop P (as his Honour then was) in Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3]-[4] that:

25. [295]

    It is noted that a decision as to whether further litigation should be precluded on the basis of an Anshun estoppel or on the basis that it would involve an abuse of process requires an evaluative judgment.

26. [296]

    As to the first contention, it is submitted that one can test the reasonableness of the proposition that Vase should have pleaded his promissory estoppel or constructive trust claim prior to resolution of the family provision proceedings by postulating that the family provision proceedings had gone to a judicial determination in the normal course without the trust claim. It is submitted that had provision been ordered, and the estate distributed, it would clearly not be in interests of justice then to allow a later trust claim that might have taken away the very provision ordered.

27. [297]

    It is noted that what in fact here occurred was a settlement of the family provision claims on 23 March 2016 which had the effect of disposing of those proceedings finally in both cases (noting that in Vase’s case the order made by Kunc J was that his family provision claim was “dismissed generally with the intention” that he not claim the same relief in fresh proceedings).

28. [298]

    It is submitted that Vase had the opportunity to bring the present claim at any time up to the finalisation of the compromise; and that to do so would at the very least have allowed his mother to be separately advised as to the effect of the claim on her family provision claim. It is submitted that because of the potential effect on the estate, the claim was so relevant to it that it was unreasonable not to rely upon it prior to the compromise. The same submissions found Lidija’s abuse of process claim.

29. [299]

    As to the second contention, it is submitted that the leave granted for Vase to file the statement of claim was a procedural step only (without prejudice to Lidija’s motion) and that, in the light of the compromise later found to have existed, that procedural step did not preclude the operation of the Anshun principle in the circumstances. Alternatively, it is submitted that, properly characterised in the light of the events, the filing of the claim in substance became a fresh proceeding for the purpose of the Anshun principle.

30. [300]

    It is further submitted that if, contrary to Lidija’s submission, the Anshun principle cannot apply within the same proceeding, then in the context of what occurred the claim is abuse of process because: the claim should have been raised prior to the compromise and the filing the claim was the use of a Court procedure that is unjustifiably oppressive to Lidija and has a drastic effect on the interests of Radmila and the public interest in the finalisation of estates; and alternatively, that the filing of the claim and the prosecution of it, in all the circumstances, would bring the administration of justice into disrepute. Specifically, it is said that this would, in effect, sanction wasted costs and wasted procedural steps and that it would not be consistent with the just, quick and cheap resolution of the real issues in dispute.

31. [301]

    Nothing more need be said about the third of Lidija’s contentions – it is accepted that Vase does not assert he had a reasonable basis for not bringing the claim at the time he filed the summons or sometime prior to the compromise.

32. [302]

    Finally, as to the fourth contention, it is submitted that the terms of the stay operated only as a stay on the entry of the orders pursuant to s 73(1)(b) of the Civil Procedure Act made on 24 February 2017 and that the stay does not exclude the Anshun estoppel and abuse of process issues being determined.

33. [303]

    In the course of submissions on this issue on 12 April 2018, what became apparent was that there had been some confusion in the course of the argument before Kunc J as to whether any orders had actually been made by Hallen J on 23 March 2016 or whether his Honour had simply foreshadowed, but not actually made, orders in terms of the signed consent orders pending the determination of whether there would be approval of a s 95 release. The transcript of 23 March 2016 is not conclusive in that regard. Part of it suggests that the agreed orders were pronounced on that occasion (which is the recollection of Counsel for Lidija who appeared on that occasion) but then it appears that his Honour indicated that the final making of those orders was to await provision of the affidavit relating to approval of the s 95 release. As noted earlier, there is no record of orders having formally been entered on JusticeLink on that day (or later) by Hallen J in the terms of the parties’ then agreed compromise.

34. [304]

    When the matter came before Kunc J, his Honour raised the question as to what, if any, orders had been made on 23 March 2016. It appears that his Honour ultimately characterised the matter as one where he was completing the process that Hallen J had started in order to give effect to the agreed compromise. The orders ultimately entered on JusticeLink by Kunc J mirrored those that Hallen J had been prepared to make (and at least by reference to the transcript appears at one stage to have pronounced) on 23 March 2016.

35. [305]

    Pursuant to r 36.4(1) of the Uniform Civil Procedure Rules, a judgment or order takes effect as of the date on which it is given or made or, if the court orders that it not take effect until it is entered, as of the date on which it is entered. There was certainly no order on 23 March 2016 providing that any orders then made were not to take effect until entered. Therefore, subject to the import of his Honour’s reference to the affidavit that was necessary in order to deal with the application by Lidija for approval of the s 95 release, the pronouncement in court of orders in terms of the agreed orders would ordinarily suffice (notwithstanding that the orders were not subsequently formally entered) for them to take effect as of that date. On one view of the matter, all that later happened was that those orders were subsequently confirmed by the making and entry of orders in the same terms by Kunc J in February 2017 at the time his Honour published the first judgment in the matter.

36. [306]

    If the orders were in fact pronounced in court on 23 March 2016, that would mean that the family provision claims were finally determined on 23 March 2016 and hence the argument sought now to be run by Vase (that no Anshun estoppel can arise because the amended summons was filed before the orders dismissing the family provision claims were made) loses much of its force. There is, however, some doubt as to whether the better view is that, although seemingly having been pronounced in court, the outcome of the debate as to the need for affidavits in relation to the s 95 release was that the orders were treated as not yet having been made. That would explain the way the matter was dealt with on 31 May 2016 and would accord with the manner in which Kunc J ultimately dealt with the question of the orders to be made in February 2017. And, in any event, it is clear that the proceedings were not finally disposed of on 23 March 2016 because what was still contemplated was the giving of approval to the s 95 releases.

37. [307]

    Therefore, I am prepared to proceed on the basis that the amended summons was filed (without leave) before final orders were made and entered in relation to the family provision claims. That brings me back to the question whether the fact that the promissory estoppel claim was brought under the umbrella of extant proceedings (and not as a separate proceeding) renders the doctrine of Anshun estoppel inapplicable.

38. [308]

    In Tomlinson, it was said by the plurality that an Anshun estoppel protects the interests of finality and fairness and is one of the forms of estoppel which can arise “from the rendering of a final judgment in adversarial proceedings” (see [22]). The orders disposing of the family provision claims (to which there had initially been consent by all parties but which were only finally entered following the judgment handed down by Kunc J on 17 February 2017) were made as a consequence of the rendering of a final judgment on discrete (and until leave was given for the filing of the statement of claim, the only) claims in adversarial proceedings. The interests of finality and fairness, to which the High Court referred in Tomlinson, would in my view equally apply to the making of orders disposing finally of discrete (and up until then the only) claims made in the same set of proceedings as the claim in respect of which an Anshun estoppel was said to arise.

39. [309]

    Were it necessary to determine (and for the reasons that follow it is not; nor is it necessary to determine the related question as to whether the orders made by Kunc J on 17 February 2017 were orders made, though not expressed to be, nunc pro tunc), I would have concluded that there is scope for the application of the principles relating to Anshun estoppel even where there are no separate proceedings as such – at least in circumstances where there is the institution, by a separate pleading filed (ultimately by leave) in the same set of proceedings, of one or more new claims in proceedings otherwise concluded by compromise between the parties.

40. [310]

    The reason that it is not necessary to determine this issue is because I consider that the procedural step taken by Vase, in filing the online amended summons without leave, amounted to an abuse of process. In that regard it was not simply the procedural irregularity of filing an amended summons without leave or, for that matter, purporting to file a statement of claim by way of annexure to the aforesaid amended summons; but that what was thereby sought to be brought was a claim wholly inconsistent with the family provision claim that had been brought by Vase and that had only just been settled by him.

41. [311]

    In Tomlinson, the plurality made clear that the considerations that underpin Anshun estoppel “may support a preclusive abuse of process argument” (see at [22]). Their Honours also said (at [25]-[26]):

42. [312]

    I consider that the use of the court’s procedures by Vase in the present case (by the filing online without leave of the amended summons at the stage he did) was unjustifiably oppressive to Lidija and was likely to bring the administration of justice into disrepute. I thus find that it was an abuse of process.

43. [313]

    However, the fact remains that, after this had occurred, two things happened: first, Hallen J granted leave (over Lidija’s opposition) for the filing by Vase of a statement of claim in the proceedings (albeit expressed to be without prejudice to Lidija’s notice of motion, filed on 29 June 2016, seeking to enforce the compromise that Lidija asserted had been reached in respect of the family provision claims); and, second, Kunc J (again over Lidija’s opposition) stayed the operation of the orders in relation to the family provision claims pending determination of the claims raised in Vase’s statement of claim.

44. [314]

    I do not accept that an issue estoppel arises in relation to the latter. There was not a hearing expressly directed to the question whether an Anshun estoppel had arisen nor as to the abuse of process argument now raised (indeed Vase’s submissions seem to concede this insofar as he now says that any Anshun estoppel defence should have been raised at that very time). Nor did Kunc J address in his reasons any such issue of Anshun estoppel or abuse of process. The most that his Honour said in this regard was that it was in the interests of justice (balancing the matters to which his Honour had there referred) for Vase’s (irregularly filed) pleadings to proceed, in circumstances where his Honour considered that otherwise Vase’s promissory estoppel claim would be rendered nugatory.

45. [315]

    However, from a practical point of view, it seems to me that in all the circumstances referred to above the abuse of process (in the manner in which Vase’s belated promissory estoppel claim was commenced) has since been overtaken by the orders made by Kunc J allowing that claim to go forward. Thus I considered when the matter was argued before me in April 2018 that to dismiss the proceedings before a contested hearing on the basis of the Anshun estoppel argument, or as an abuse of process, would raise the spectre (or, to use the traditional language, the scandal) of inconsistent judgments. Hence, with a view to the need to maintain the integrity of the administration of justice, I did not accede at the time to the application for summary dismissal on the basis put forward for Lidija (notwithstanding my view that there seemed to have been an abuse of process). Now having heard the matter as a whole, I am fortified in the view that (having regard to the orders that were made before the matter came before me) Vase’s claim should be determined on the merits.

46. [316]

    In those circumstances, it is not necessary to address further the various Anshun estoppel, abuse of process and issue estoppel arguments that were raised at that earlier stage of these proceedings.

Admissibility of the critical documents (Macedonian Power of Attorney; Contract for a Gift)

1. [317]

   I have referred above to the dispute raised as to this issue.

2. [318]

   As to the decision of Perram J in ACCC v Air New Zealand (at [89]ff), Counsel for Lidija accepts that in Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 (Calleja), the Court of Appeal (Leeming JA, with whom Basten and Gleeson JJA agreed), at [101], referred to Perram J’s reasoning with apparent approval and the relevant part of Rusu was not followed or not approved or doubted. Reference is also made to Multisteps Pty Ltd v Specialty Packaging Aust Pty Ltd [2018] FCA 587 (per Jagot J at [123]).

3. [319]

   At [101] in Calleja, Leeming JA said:

4. [320]

   The argument raised for Lidija, notwithstanding the above, was that evidence must be properly adduced in order to make a decision about admissibility; and Lidija maintained the procedural argument raised on 30 May 2018 as to the proper method of adducing such evidence.

5. [321]

   Section 48(1) of the Evidence Act provides that “[a] party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods”; and a series of methods are then set out. The submission made for Lidija was that the Macedonian Power of Attorney and the Contract for a Gift are in a foreign country and therefore could only be adduced into evidence pursuant to s 49 of the Evidence Act, which provides:

6. [322]

   It is submitted that the documents themselves are hearsay and, in relation to the purported notice under s 67 of the Evidence Act, reliance is placed on r 31.5 of the Uniform Civil Procedure Rules, which provides that:

7. [323]

   The submission made for Lidija can be summarised as being that: a formal Notice to Produce for the originals of the documents was served (dated 25 July 2017); the originals were not produced in response to Notice (and letters of 4 August 2017 and 10 August 2017 from Vase’s lawyers cast doubt on the “forensic purpose” for which the originals were sought); by letter dated 11 August 2017, Lidija put Vase on notice that she would object to the documents at the hearing; and there is no (or no adequate) evidence of reasonable steps having been taken to procure the originals (or as to why they cannot be procured); hence it is open to the Court to refuse to allow the evidence to be adduced. It was also submitted that if the evidence were allowed to be adduced, it should only be admitted provisionally and the costs of and incidental to the hearing related to the applications in that regard should be reserved.

8. [324]

   Determination of the admissibility of what are said to be copies of the disputed documents in these proceedings (the alleged power of attorney and contract of gift) raised a question as to whether proof of the authenticity of those documents is a condition of their admission into evidence.

9. [325]

   The authenticity of those disputed documents is, of course, one of the hotly disputed issues in the present proceedings. It is intuitively difficult to see why what are said to be copies of those documents should not be admissible, even if in the result they are ultimately determined to be inauthentic, given their eminent relevance in the proceedings. In the terms of s 55 of the Evidence Act 1995 (NSW), if the evidence were accepted, it could self-evidently affect, in a rational manner, the assessment of the probability of the existence of a fact in issue in the proceeding. Consequently, unless excluded by another provision of the Evidence Act, those documents would be admissible as relevant evidence, pursuant to s 56 of the Evidence Act.

10. [326]

    However, some scope for confusion arises upon consideration of differing approaches in the case law to the relationship between authenticity and admissibility with respect to documentary evidence. Before turning to that case law, it is important to bear in mind the distinction between, on the one hand, a case where the very issue in dispute is the authenticity of a document, which will surely need to be admitted into evidence in order for the tribunal of fact to determine its authenticity, and, on the other, a case where a document’s relevance may be entirely dependent on its status as an authentic record. Moreover, a number of the cases concern where what would otherwise be inadmissible evidence is sought to be brought within the business records exception in s 69 of the Evidence Act, for which it is necessary to show that the document “is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business” (s 69(1)(a)(i)). In order to meet that requirement, it could be said that a condition of a document’s admissibility is that it is a genuine or authentic record of that business.

11. [327]

    The decision of Bryson J in Rusu falls into the last-mentioned category of case. That is, Bryson J was concerned with the admissibility as a business record of two pages which purported to be an extract of a bank statement, and were sought to be admitted pursuant to the exception in s 69 of the Evidence Act. At least in part, his Honour’s reasoning depended on the fact that under s 69(1)(a)(i) the plaintiff needed to show that the document “is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business” (although it must be accepted that his Honour’s reasons are expressed in broader terms than this).

12. [328]

    In Rusu, Bryson J articulated the following propositions.

13. [329]

    First, that before a business record or any other document is admitted into evidence it is necessary that there should be an evidentiary basis for finding that it is what it purports to be (at [17]).

14. [330]

    Second, in the language used in s 57(1) of the Evidence Act, a finding that the evidence is what the party claims it to be is distinguished from the question whether the evidence is relevant; authenticity is something on which relevance depends, and a question of authenticity is not a question as to the relevance of documents within s 58(1) of the Evidence Act, which treats authenticity as part of the material on which relevance may be determined (at [19]).

15. [331]

    Third, that s 51 of the Evidence Act does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and s 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is (at [26]).

16. [332]

    Fourth, that s 48(1) prescribes the means of adducing evidence of the contents of documents, and leaves untouched the need to establish that a document is what it purports to be (at [26]).

17. [333]

    Fifth, that there is no authority for the proposition that under the Evidence Act the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom (at [28]).

18. [334]

    As to the fifth proposition, it is relevant to note that the defendants in Rusu were litigants in person and Bryson J does not appear to have had the benefit of any submissions from the defendants on the admissibility of the statements (see at [2]-[6]); nor does his Honour’s attention appear to have been drawn to s 183 of the Evidence Act.

19. [335]

    I consider that the weight of recent authority indicates that Rusu turned on its own facts and circumstances and should be thus confined.

20. [336]

    The Court of Appeal has expressly reserved its position as to the correctness of Rusu on several occasions; most recently, in Calleja, part of which has already been extracted above at [319]. There, Leeming JA (with whom Basten and Gleeson JJA agreed), said at [99]-[102]:

21. [337]

    In DPP v Pinn [2015] NSWSC 1684, Adamson J held (at [36]) that she did not need to express a concluded view as to whether Rusu ought to be followed, but went on to say that in any event Rusu “turned on its particular facts and circumstances”, which included that the defendants were unrepresented and unable to speak more than a little English. At [40], her Honour said:

22. [338]

    I respectfully agree with her Honour. Moreover, Adamson J described the approach outlined by Perram J in ACCC v Air New Zealand in a series of propositions at [92] as “orthodox and well established” (at [46]). The “basic propositions” set out by Perram J in relation to authenticity were as follows:

23. [339]

    In my view, these propositions are compelling. (It may be noted that his Honour was not here focussed on any requirements of s 69 of the Evidence Act.)

24. [340]

    Perram J then went on to consider Rusu (from [94]-[98] of his reasons), as follows:

25. [341]

    At [99], Perram J concluded that Rusu was “plainly wrong” because it:

26. [342]

    His Honour noted that Rusu had been doubted by the ACT Court of Appeal in O’Meara v Dominican Fathers (2003) 153 ACTR 1; [2003] ACTCA 24; was described as controversial by the Full Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305; was inconsistent with ALRC Report 26 on Evidence (Australian Law Reform Commission, Evidence, Report No 26 (1985)), particularly at [979]-[986]; and was criticised by the author of Uniform Evidence Law (Stephen Odgers, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) at [1.3.480]).

27. [343]

    At [103]-[104], Perram J concluded:

28. [344]

    The consistent approach in recent years in the Federal Court and in the Victorian Supreme Court has been to follow ACCC v Air New Zealand in preference to Rusu, while judges of this Court have taken more varied approaches, in some circumstances distinguishing or questioning Rusu and in others (usually where dealing with business records), approving it.

29. [345]

    For my part, I agree with Perram J’s propositions in ACCC v Air New Zealand and with Adamson J’s comments thereon. In circumstances where the Court of Appeal has reserved its opinion as to the correctness of the decision (in Calleja, as well as in Bobolas v Waverley Council (No 4) [2015] NSWCA 337 at [42] per Leeming JA, with whom Basten JA and Tobias AJA agreed, and Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 at [34] per Meagher JA, with whom McColl JA and Sackville AJA agreed (Jones)), I consider I should follow those statements rather than the statement in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 (see at [46]).

30. [346]

    I note also in this regard that, in Jones, Meagher JA observed at [34] that it could be assumed that the question of the document’s relevance fell to be determined on the basis that the document was what it purported to be (in a context where it was unnecessary to consider the correctness of the observations in Rusu).

31. [347]

    Accordingly, having previously only provisionally admitted the disputed documents into evidence, my ultimate ruling is that they are to be treated as admitted without that provisional qualification. I emphasise that in so doing I am not ruling on their authenticity. I deal with that issue later in these reasons.

Credibility of witnesses

1. [348]

   Before turning to the remaining issues for determination, I set out below my conclusions as to the credibility of the respective witnesses

2. [349]

   Two affidavits of Vase were read in his case in the proceedings before me (affidavits sworn 26 July 2016 and 2 November 2016). Other affidavits that he had sworn and filed in the proceedings were not read, though portions were put to him in cross-examination (see his affidavits of 12 December 2016 and 18 November 2015).

3. [350]

   For Lidija, it was submitted that Vase was an extremely unreliable witness whose evidence was characterised by “obfuscation, exaggeration and a refusal to answer basic questions” and marked by a tendency to give speeches. In particular, as to obfuscation, reference was made to the cross-examination of Vase on questions relating to the documents he claimed to have received or given to the interpreter (Ms Božinoska) for the purpose of interpreting those documents and to the questions as to the costs he claimed to have paid in reliance on the representations he contends were made to him. Further, attention is drawn to his evidence that the allowance he received from Ljubica’s pension was $150 per fortnight, when in fact it was that amount per week.

4. [351]

   It was submitted that Vase’s evidence in the proceedings before me reflects the same features observed by Kunc J in Antova & Anor v Bokan [2017] NSWSC 115 (at [19]-[22]); his Honour there concluding that

5. [352]

   It was not suggested, nor could it be, that Kunc J’s finding as to Vase’s creditworthiness as a witness was in any way binding on me; nor do I find it of assistance. My conclusions as to Vase’s credibility as a witness are based solely on my observation of Vase in the witness box and a consideration of his evidence balanced against the contemporaneous material, evidence of other witnesses, and the inferences to be drawn from all of the evidence before me.

6. [353]

   Vase showed a marked reluctance to accept particular (often uncontroversial) propositions put to him and had a tendency to argue his case – often reiterating propositions in support of his own case rather than focussing on, and actually addressing, the question which had been put to him. This was particularly apparent in his responses to the series of propositions put to him at the conclusion of his cross-examination (see from T 159ff, which I have extracted below at [361]).

7. [354]

   I accept that there were occasions when there was obvious confusion on Vase’s part or where he and the cross-examiner seemed to be at cross-purposes (such as in the course of cross-examination as to the whereabouts of the actual document(s) that Vase said he had taken out of Macedonia in October 2009). Vase occasionally said that he was confused or did not understand the question put to him (or on one occasion that he was on a “different frequency” to the cross-examiner – T 39.42, 7 June 2018); and there were various times when (to ensure he understood the question being put to him) Counsel for Lidija asked that the interpreter translate the question being put to him. Nevertheless, I considered that he was able to understand and respond to questions in English and I formed the view that some of the resistance on Vase’s part to certain lines of questioning was not the result of any confusion but, rather, his insistence on arguing his own case (of which I give examples below).

8. [355]

   There were a number of occasions when the witness and cross-examiner were talking across each other (see for example at T 69, 7 June 2018); and there were also a number of times when Vase became testy with the cross-examiner (see the exchanges at T 53.18-20; T 58.5; T 61.20-25; T 68.6) and argumentative (see T 64.37; T 66.1-4 – the latter also being an example of resistance on Vase’s part to answering a simple question – namely whether he had told anyone at the aged care facility that he was taking his grandmother away).

9. [356]

   By way of other examples as to his resistance to answering seemingly simple questions, Vase would not accept as accurate the translation by Ms Božinoskaof the Macedonian Power of Attorney as contained in Exhibit 6, insisting that it was one of a number of translations (T 18.43) and that “It’s always a arguable thing between the translators and it’s how they do their job so I’m not competent about that -- ” (T 18.47-48; see also T 18.26); when what he was being asked was in essence a simple question for someone who spoke and read the Macedonian language and could speak and read English “to some extent”. Similarly, he was not prepared to accept the accuracy of the translation of the Contract for a Gift, though he believed and hoped it was accurate (see T 20.34-21.17.) Another example is when he was asked how far away it was to Lidija’s home from the aged care facility (T 62.23-42), where he said he didn’t know, before ultimately agreeing that it was close.

10. [357]

    By way of example of occasions when he advocated his own position rather than answering the question, as asked, see the following:

11. [358]

    See also at T 63.20 where Vase was anxious to give his own account of events (as I apprehended it, about his perception of his grandmother’s treatment at the aged care facility in Zagreb) rather than answering the questions put to him; and he accused the cross-examiner on more than one occasion of “jumping” important events. The clearest example of Vase advocating his own position was in his insistence that he had followed his grandmother’s orders in taking her away from the aged care facility (see T 66.8-20; T 83.11-18); saying at T 67.6-9:

12. [359]

    Another example is the series of impassioned answers given by Vase at T 68:

13. [360]

    As to an example of Vase stating that he did not understand questions, see at T 28.45-46, where after questions as to the difference between the copy of the Macedonian Power of Attorney annexed to his affidavit and that annexed to Ms Božinoska’saffidavit, he did not understand the following:

14. [361]

    By the time Vase was cross-examined about issues such as the payment of rent or of an occupation fee for the Granville property, his answers were largely non-responsive, as were his answers to the following series of propositions put towards the close of his cross-examination (from T 159.44ff, 12 June 2018):

15. [362]

    At T 39.42, Vase suggested that he and the cross-examiner were “probably speaking a different frequency and we cannot understand each other” when he was asked questions about the fact that he had verified the original statement of claim an allegation that the Macedonian Power of Attorney contained a representation that his grandmother would make a will in which she devised to him the Granville property and the balance of the estate (see [6(b)] of the amended statement of claim). The thrust of that cross-examination can be seen in the exchanges that followed Vase’s acceptance that his understanding of a will was that it was a document whereby somebody leaves their property to other people when they die (see T 39.22-40.21):

16. [363]

    After some apparent confusion on the part of Vase, he then clarified his answer as follows (T 41.24-41.39):

17. [364]

    What I understood from Vase’s evidence in cross-examination was that he there maintained that Ljubica had given all her assets to him in 2009 – relying for that belief on the Macedonian Power of Attorney (and that this understanding may have been confirmed by the later receipt of the Contract of Gift but certainly was not based on that document, of which he was not given a copy in 2009).

18. [365]

    While I draw no adverse inference from the verification of his pleading in the present proceedings (because it seems to me that whatever representation might be said to have been conveyed by the Macedonian Power of Attorney may involve a question of the legal construction to be placed on that document), it nevertheless does illustrate the seemingly fluid nature of Vase’s case.

19. [366]

    Vase’s adamant position that in 2009 Ljubica had given the Granville property (and all her assets) to him is inconsistent not only with the pleaded case (as to what representation was conveyed to him by the respective documents – see [4]; [6] of the amended statement of claim) but also with: the failure to raise any such issue before the Guardianship Tribunal; the nature of the equitable interest asserted in the caveat he lodged over the title to the Granville property; the belief he expressed to Ms Muscolini as to the Macedonian Power of Attorney being a will; and his claim in the family provision proceedings itself. The hitherto undisclosed existence of the Contract for a Gift, appearing only once Vase had become aware that the Macedonian Power of Attorney was not a will and not effective to transfer Lidija’s estate to him and that he would receive nothing out of his family provision claim is suspicious in itself and the evidence relied upon to support a claim based on that document is not plausible (as I explain below).

20. [367]

    Further, Vase’s assertions as to the moneys paid by him (allegedly in reliance on the representations said to have been contained in the critical documents) did not withstand scrutiny in a number of respects – in particular, I am not satisfied that he paid for the special lifting device or bed (or, if he did, that those costs were not reimbursed to him by the NSW Trustee & Guardian).

21. [368]

    Overall, I have concluded that Vase is not a credible witness and is someone whose evidence cannot be accepted unless corroborated by documents the authenticity of which (unlike the Contract for a Gift) is not in dispute or evidence from independent witnesses.

22. [369]

    Mr Danilov travelled from Macedonia to give evidence in Vase’s case and gave his evidence through a translator. He is in his 70’s and at least one point in the cross-examination he appeared concerned to emphasise that this was his first time in court (other, he added, than in relation to “the car case” – T 238.48 – which I infer was a court case overseas) and that he had no interest in the proceedings other than his concern at the treatment of Ljubica.

23. [370]

    Mr Danilov had known Vase, through his parents Radmila and Anton, for many years (T 225.25). He was one of the two witnesses to the alleged signing of the critical documents. Mr Danilov’s evidence was that Vase had “called” him to be a witness at the notary office (possibly there meaning, called over the phone) (T 225.41). The other witness to the alleged signing, Ms Letka Kostovska, though having been listed as a witness in the plaintiff’s case, did not ultimately attend court and her affidavit was not read.

24. [371]

    For Lidija it is submitted, by reference to the history of Mr Danilov’s relationship to Vase and his role in the events the subject of these proceedings, that Mr Danilov’s evidence “is tainted by that relationship or he was duped by it when it came to signing affidavits and witnessing documents”. While I do not accept that such a finding is warranted, there are a number of difficulties with his affidavit evidence that to my mind significantly reduce the weight that can be placed on that evidence.

25. [372]

    The affidavit made by Mr Danilov and served prior to commencement of the proceedings (but ultimately not formally read in Vase’s case) was not properly attested; nor, for that matter, was the affidavit of the translator, Ms Menoska, properly sworn. That was remedied the morning that Mr Danilov was called for cross-examination by the swearing of a further affidavit on 13 June 2018 and there was no issue in relation to the translation or attestation of that affidavit.

26. [373]

    However, the issue that emerged in cross-examination of Mr Danilov was that, on his own account of events, his initial affidavit was prepared by Vase’s legal representatives in Australia without any of those lawyers ever speaking to him to obtain instructions as to his recollection of events; and the affidavit was emailed through to an interpreter in Macedonia and translated to him there. He said that he had not become aware after the visit to the notary’s office that Vase was involved in legal proceedings here (which, if true, makes it difficult to understand how he came to be swearing an affidavit in these proceedings – though I suspect he was there talking about awareness of the legal proceedings at a much earlier time) (T 225.46-49); and he said that Vase had never rung him about these proceedings (T 226.1).

27. [374]

    How Vase’s Australian legal representatives came to take instructions from Mr Danilov as to his independent recollection of events, for the purpose of preparation of his first affidavit, is therefore somewhat of a mystery. (I might add that a cursory comparison between that first affidavit and the affidavit of Mr Dabeski, to which I was taken on the unsuccessful application for leave, would also give rise to concerns given the identical wording of some of the paragraphs – but I draw no adverse conclusion from this in circumstances where neither of those affidavits was ultimately read in Vase’s case.)

28. [375]

    Also problematic was the fact that the annexures to Mr Danilov’s first affidavit (which, though not read, was the subject of cross-examination and was admitted into evidence as Exhibit 15 as evidence of what he had brought with him to Australia) were documents that were not (on Mr Danilov’s account) in Mr Danilov’s possession. His evidence was that he did not take any documents away from the public notary’s office and he did not recall whether he had later picked up any documents from the public notary.

29. [376]

    Indeed, there is a distinct possibility that no documents were actually affixed to his first affidavit when he signed it (because he did not bring with him to Australia a complete version of the affidavit he had signed in Macedonia – and his account of how he came to sign that affidavit was just that it was read to him by the translator). That gives rise to a real question as to the basis on which he was able, when signing the first affidavit, to be satisfied that the documents said to be annexed thereto (the Macedonian Power of Attorney and Contract for a Gift) were indeed documents the execution of which he had witnessed in Macedonia (as opposed to him being able to confirm that the copies of the documents in evidence, assuming they were shown to him at the time, appeared to bear his signature). So, for example, there was the following evidence (T 235.23-34):

30. [377]

    It was clear that Mr Danilov felt some indignation or emotion as to the way he considered that Ljubica had been treated (though it must be noted that he was necessarily privy only to one side of the story, not having seen first-hand anything that happened in Zagreb); and he seemed to be concerned at the perception that he might in some way be seen as favouring anyone – thus he asked to say the following (by way of purported clarification of his evidence) (see at T 238.40-48):

31. [378]

    One could well understand concern being felt at the spectre of an elderly woman (recovering from a recent leg amputation) being transported around (between countries) in the fashion that Ljubica was in the present case (whatever the merits or otherwise of her medical treatment in Zagreb and whatever the motivations of the respective family members on both sides). However, Mr Danilov’s concern seems to have been as to Ljubica’s prior treatment in Zagreb, of which he can have had no personal knowledge; and in respect of which any account given to him by Ljubica may well have been influenced by whatever her physical and mental state was at that time (on Mr Danilov’s evidence, her condition was so poor on arrival in Skopje that he recommended that they take her straight to hospital, where she remained for about two weeks). In any event, Mr Danilov’s concern in that regard is not to the point.

32. [379]

    I make no adverse findings as to Mr Danilov’s credibility as a witness. I was satisfied that he was endeavouring to answer the questions honestly and I take into account that it was a stressful situation for him, at his age, to be giving evidence in a foreign court through an interpreter.

33. [380]

    Relevantly, what I take from his evidence as to what I regard as the crucial facts as to the authenticity of the Contract for a Gift is that he has no actual recollection of having attended the public notary’s office on two days in a row (as distinct from on just one occasion) for the purpose of anything to do with Ljubica (cf the bald statement in his affidavit at [7] that on 13 and 14 October 2009 he did so); and, other than that his signature appears to be on the Contract for a Gift, he cannot now reliably attest to having witnessed its execution. Moreover, it is noteworthy that Mr Danilov gave no evidence of having provided copies of the critical documents to Vase in June 2016, as Vase says he did.

34. [381]

    Mr Kurtovic, who on his own account had been a friend of Ljubica for some time, gave evidence that was clearly coloured by his personal view of her condition when he visited her at the aged care facility for the first time in September 2009 (as to which I say more below), which he expressed with some forcefulness in the witness box.

35. [382]

    For Lidija, it is submitted that his evidence as to his motives and reasons for going to Croatia should not be accepted but that his “disarmingly frank” evidence of the key events (the meetings that took place and the parties present at those meetings) should be accepted. In this regard, Lidija refers to Mr Kurtovic’s evidence as to the removal of Ljubica from the aged care facility; the meeting at Mr Dabeski’s home with Vase in Skopje prior to his attendance at Radmila’s unit (not referred to or denied by Vase); and the presence of particular parties at the public notary’s office in Skopje.

36. [383]

    My observation of Mr Kurtovic is that he displayed a tendency to exaggeration, was prone to making sweeping statements, and was from time to time argumentative in the witness box. Some of his answers were almost incoherent (T 190.26-39):

37. [384]

    As to his tendency to exaggeration, a simple example is that in his affidavit sworn 22 August 2016 Mr Kurtovic deposed (at [3]) to having taken Ljubica on a daily basis to visit Leonard when he was in hospital in Sydney “after he was hospitalised” (which must have been in about 1995), whereas he conceded in cross-examination that this in fact occurred “any time that she require or every time when she want or every daily from Monday to Friday” (see T 175.9-13; and see T 175.26). He ultimately accepted that this was “probably” an exaggeration (T 176.29).

38. [385]

    As to him being argumentative, Mr Kurtovic demanded at T 176.33, to know what his criminal history for violence (that being a reference to the fact that he had spent ten years in gaol for the manslaughter of his in-laws) had to do “with this stuff here”, though he appeared to have no difficulty in answering questions on that topic. (I was inclined to share his view as to the relevance of his criminal history to the present proceedings but it was submitted for Lidija that this was relevant insofar as it corroborated Ms Derkos’ account of her encounters with him – and there is some force to that observation.) Returning to Mr Kurtovic’s attitude as a witness in the proceedings, this can be best described as argumentative – indeed at one point in cross-examination he said, in effect, that he would refuse to answer the question unless allowed to elaborate.

39. [386]

    As to the making of sweeping statements, see the exchange at T 180.30 as to his connections with the police system in Zagreb; his comments as to the aged care facility at T 181.2-6; his explanation as to the relationship he had with “that old woman” (Ljubica) as being “more like a family, not like, even like a friends” (T 181.37); she being “like my mother” (T 181.17); and his comments as to Ljubica’s health. He clearly had strong views as to the aged care facility and Ljubica’s treatment there (although this seems to have been based on nothing other than comments made to him and his initial observations when he went to the aged care facility; coupled with observations made by him previously when Ljubica was treated for diabetes in Sydney and assertions as to his understanding of insulin treatment derived from his wife).

40. [387]

    Mr Kurtovic was seemingly only too ready to proffer his own opinions on medical issues though not a doctor (T 193.12-35):

41. [388]

    I accept that Mr Kurtovic may genuinely hold firm views as to matters such as how he believes Ljubica was treated in Zagreb and the state of the aged care facility and the like. However, he did demonstrate a tendency to advocate for his own views (for example as to Ljubica’s treatment); and his account of events in that regard seems to be based on little more than assertion. He accepted that he did not have medical qualifications and his account of Ljubica’s condition in the aged care facility and description of the facility itself is so much at odds with the more objective account of Ms Derkos that I treat Mr Kurtovic’s evidence on those matters with a great deal of caution.

42. [389]

    Mr Kurtovic’s equivocal answers to the proposition that someone (if not he himself – and he staunchly denied that he had done so) had gone to the aged care facility with papers of some kind for Ljubica to sign must be weighed against the evidence of Ms Derkos as to her encounters with him at the aged care facility and then at the hospital. Where there is a conflict between the two accounts I have no doubt that Ms Derkos’ evidence should be preferred. Mr Kurtovic readily accepted that there had been a commotion at the aged care facility and I can well understand that Ms Derkos would have seen Mr Kurtovic as intimidating (her physical demonstration in the witness box of him puffing out his chest was, to my observation, both unrehearsed and genuine).

43. [390]

    I draw a number of propositions from Mr Kurtovic’s evidence: first, that he gave a wealth of detail that was absent from Vase’s account of events (including the visit to Mr Dabeski’s private house and then Mr Dabeski’s visit to Radmila’s unit; and the circumstances in which the temporary travel documents were issued); second, that there are unexplained inconsistencies between his account of events and that of other witnesses (including that on his account Ljubica was taken first to Radmila’s unit in Skope and only the next day to the hospital in Skopje, whereas both Vase and Mr Danilov say that Lidija was taken straight to the hospital from the airport; and, importantly, that he only visited the public notary’s office once and only saw Ljubica sign one document). As to that last matter, I do not discount the possibility that what he meant was that there was only one document (the power of attorney) that was being signed but was not excluding the possibility that more than one copy of that particular document was signed.

44. [391]

    On the whole, and particularly coupled with Mr Danilov’s inability positively to give evidence of any more than one meeting, I consider that Mr Kurtovic’s evidence supports the conclusion that there was a document signed at the public notary’s office on 13 October 2009 but that it was the Macedonian Power of Attorney, not the Contract for a Gift; and this fortifies my conclusion that the latter is not an authentic document executed by Ljubica and witnessed, as alleged, on 14 October 2009.

45. [392]

    Mrs Kurtovic was direct and forthright in the witness box. She took issue with having to answer questions as to the history of the relationship with Ljubica or the nature of the relationship between one or more of her daughters who had lived for a time in Ljubica’s house. She was unnecessarily confrontational when asked about her knowledge of whether Vase had a full time job in 2009 and was ready to accuse the cross-examiner of a confusion of dates and events being “mixed up” (T 220.43).

46. [393]

    For Lidija it was submitted that, to the extent that Mrs Kurtovic sought to portray a closeness to Ljubica, any such closeness was coloured by an ulterior motive (namely, that she wanted one or more of her daughters to live with Ljubica for a period of time – an arrangement that seems not to have continued for long, for whatever reason). It is not necessary, nor would I be in a position on the evidence before me, to make any finding in that regard.

47. [394]

    Suffice it to say that ultimately Mrs Kurtovic’s evidence was not relevant to any issue in the proceedings and there is no basis to make any further comment as to her reliability or credibility as a witness.

48. [395]

    For Lidija, it is submitted that her evidence on all topics relevant to this case is consistent with the objective facts and should be accepted; and that her evidence should be preferred wherever it conflicts with evidence led by Vase.

49. [396]

    I considered Lidija to be a truthful and credible witness. Her account of events was inherently plausible and she displayed genuine emotion in my opinion when giving her account of matters such as the decision that had to be made when she came to Australia in February 2009 and formed the view (having regard to the condition of her mother’s house and her medical condition at the time) that there were only two options: for her mother to go into a nursing home or for her mother to return with her to Croatia for the foreseeable future. I accept her evidence in that regard. It was put to her (in what I considered to be rather offensive terms) that she was (T 294.1-7):

50. [397]

    It is submitted for Lidija, that there is a “most telling counter response” to the narrative advanced by Vase as to Lidija’s motives in taking her mother to Zagreb – that being the fact that Lidija had taken steps, within days of Ljubica making her will on 11 February 2009, to make a will of her own (using the same lawyers as her mother) leaving her estate equally to all her siblings or half-siblings (including Radmila) as well as to the children of her deceased brother, Leonard.

51. [398]

    It was put to Lidija, and she denied, that she had a deep-rooted hatred of Radmila (T 294.40). Lidija referred to a visit she said she had made to Skopke to see Radmila before her second marriage, when denying any such hatred. Insofar as this proposition was put to her based on communications she had had with the Guardianship Tribunal in mid- 2010, apart from the fact that this was at a much later time than the time at which Lidija had taken her mother back to Zagreb to live in her home, by then it is obvious that a lot of water had flowed under the bridge (not least the events surrounding the removal of Ljubica from the aged care facility). Lidija explained with obvious feeling, and to my mind quite plausibly, the context of her communication to the Guardianship Tribunal (CB 2/877) in May 2010, in which she expressed suspicion as to Radmila’s motives, as follows (T 295.16-24):

52. [399]

    I accept that objection was taken to the above answer as not being responsive (Counsel for Vase said that he had not yet put a question at that time – though at the time the objection was made I had thought he had done so and hence I would not fault the witness for thinking the same). In any event I have treated this as an assertion and I extract the above passage from the cross-examination here only to illustrate the genuine emotion that I consider was displayed by Lidija in the witness box.

53. [400]

    Lidija expressed her concern as being “that they [Radmila and Vase] would just shut her [Ljubica] up in a corner and do as they please” (T 298.38) in a genuine manner and was matter of fact in denying that this was what had been done by her to Ljubica in Croatia (T 298.42). In that regard, the evidence supports the conclusion that Lidija had gone to some lengths to ensure that Ljubica had company (Ms Derkos in particular) while she was in the aged care facility in Zagreb.

54. [401]

    I find that Lidija was a credible witness.

55. [402]

    Manuela, Radmila’s sister-in-law (Leonard’s widow) gave evidence in Lidija’s case. She struck me as a balanced and (while taking into account that she is a family member) objective witness. I accept the submission made for Lidija that she was a self-effacing and cogent witness, whose evidence was clear and dispassionate.

56. [403]

    Manuela fairly conceded matters such as that the decision for Ljubica to leave Australia involved her leaving her son (then in a vegetative state in a hospital in Brisbane) and her friends behind in Australia; that her knowledge of Ljubica’s intentions at the time was based solely on Lidija’s communications with her (T 250.26); she spoke dispassionately of her late husband’s then condition; she acknowledged readily that Ljubica loved her son (T T 253.18; T 253.31) and had visited him in Brisbane (two to three times a year – T 253.22); she acknowledged that moving to Croatia for the foreseeable future was a very big thing for Ljubica (T 253.22; 253.35); she gave evidence that Lidija had told her that Ljubica was not always happy in the aged care facility (T 257.15); she acknowledged wryly and in a self-deprecating manner that she would not have been exactly the spouse Ljubica would have chosen for her only son (not being of the same nationality), but said in a resigned fashion “we tried” (T 260.34).

57. [404]

    Manuela described Ljubica as a complicated individual (T 260.26) and their relationship as a “love/hate relationship (T 260.30). She did not hide the fact that she considered that Radmila had in effect “basically rejected” her and her children “once her brother was out of the picture” – see T 250.31. That said, there was nothing to indicate that Manuela’s evidence was motivated by any animus towards Radmila or her son, Vase. Manuela, for example, readily accepted that Radmila had not rejected her mother (T 250.34); and said she was not aware of tension between Radmila and Lidija (T 250.42).

58. [405]

    I found Manuela to be a credible witness. I accept her evidence (see T 253.38) that as a mental health clinician and mental health social worker (T 260.37) she was able to understand the issues confronting Ljubica at the relevant time. She made the telling comment in cross-examination that, to her knowledge, “nobody wants to be in an aged care facility” – T 256.50. She was able to comment dispassionately on Ljubica’s insulin dependence (T 250.7) and what that meant (cf Mr Kurtovic). Manuela listened carefully to the questions she was asked and, where necessary, corrected the premise of the question (as evident in the exchange extracted below; and see T 254.35).

59. [406]

    Importantly, Manuela corroborated Lidija’s evidence as to the concerns Lidija had at the time the decision was made for her mother to return with her to Zagreb in early 2009:

60. [407]

    Pausing here, the relationship between Ljubica and Vase before Ljubica left for Zagreb in 2009 is not in issue and I make no finding in that regard. If it had been in issue I would have had no hesitation in preferring Manuela’s account of events to that of Vase (not least because if the closeness of his relationship to Ljubica at the time was as he said it was then it is difficult to understand how Ljubica came to be in the parlous state she was in as at early 2009).

61. [408]

    To the extent that Manuela’s evidence is hearsay evidence of conversations between herself and Lidija, I do not rely on it for the truth of what Manuela says was conveyed to her by Lidija – rather, I rely on it for the fact of the communication (which, as noted above, corroborates evidence given by Lidija herself as to the circumstances in which the decision was made for Ljubica to go with her to Zagreb in February 2009). (See also in this regard the evidence from T 249.2-50.)

62. [409]

    Similarly, while Manuela’s understanding (that can only have been gleaned from her conversation(s) with Lidija) was that Radmila had not opposed her mother’s move to Zagreb, whereas Lidija accepted that Radmila did oppose the move, what clearly emerges from Manuela’s evidence is that her understanding was that the decision taken was a pragmatic one in all the circumstances to which she referred (see T 253.38ff) and this accords with the evidence given by Lidija.

63. [410]

    Manuela also corroborated Lidija’s evidence that she, Lidija, was distressed at the change made by Ljubica to her will and that she had proceeded to prepare a will in the event that if anything happened to her (by whom I understood Manuela to be referring to Ljubica) during the trip back to Croatia then Ljubica’s estate would be divided between “the three offsprings” (T 252.10-20; T 254.18-26). Whether in fact the will drafted for Lidija by Mr Vassili had that effect (and it did not) is not to the point. What I take from this evidence is simply that it supports Lidija’s credit in that there is evidence that Lidija was expressing at the time the concerns she now deposes then to have had.

64. [411]

    I also note that Manuela gave evidence as to a Skype conversation with Ljubica after Ljubica had moved to Zagreb and while she was staying with Lidija, in which Manuela considered that Ljubica appeared very happy (T 255.28). I note this simply as indicating the fact that there were varying accounts of Ljubica’s state of mind in the time she was in Zagreb.

65. [412]

    Ms Derkos travelled from Croatia to give evidence and, like Mr Danilov, gave her evidence through an interpreter. Her evidence in chief was adduced orally in circumstances where there was a concern as to whether the affidavit sworn by her had been properly translated. I accept the submission for Lidija that Ms Derkos’ evidence was clear, self-effacing and cogent.

66. [413]

    Ms Derkos works as an office secretary and met Lidija through a friend who worked at the American school where Lidija works (T 345.17-26). She gave evidence that Lidija had asked to give her some help in her home and to help her mother; and that she first met Ljubica toward the end of March or beginning of April 2009 (T 345.45-346.22). Lidija paid her for that assistance which helped Ms Derkos financially because she has a daughter who does not have work (T 346.36-41).

67. [414]

    Ms Derkos gave some evidence about the nursing home (or aged care facility) (T 348.35), including that Ljubica was sharing a room with another lady. Ms Derkos had visited Ljubica at the nursing home (while on annual leave) twice a day – in the morning and in the afternoon. She said she would feed her because Ljubica was reluctant to eat; that in the afternoons she would take her in her wheelciar around the nursing home; and twice a week they would go to the hospital via ambulance for the doctor to clean and dress an open wound Ljubica had on her heel (T 349.11-29)

68. [415]

    I formed the view that Ms Derkos was an honest witness. She did not embellish her answers and she did not seek to advocate Lidija’s cause. Instead she gave her evidence in a matter of fact fashion and (particularly in her demonstration of Mr Kurtovic) with the ring of truth. I have no reason to doubt her credibility and I accept her evidence of the occasions when Mr Kurtovic attended the aged care facility and nursing home in preference to that of Mr Kurtovic wherever that evidence conflicts.

69. [416]

    At this point, having dealt with my observations as to the witnesses who did give evidence, I should note briefly the submissions made for Lidija to the effect that adverse inferences should be drawn from the failure of Vase to adduce evidence from a number of other persons (some of whom were on his list of witnesses – that list being ordered to be provided by Kunc J on 25 May 2017 – but whose affidavits were not ultimately read).

70. [417]

    The first of the persons in respect of whose failure to give evidence it is submitted an adverse Jones v Dunkel (see Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) inference should be drawn is Radmila. Her name was not on the list of witnesses (from which it is submitted for Lidija that it can be inferred that an early forensic decision was made not to call her). It is noted that Radmila did give evidence in the proceedings before Kunc J.

71. [418]

    Vase’s evidence was that Radmila was at home (T 19.34; T 31.39, 7 June 2018) and that he was still living with her (T 20.13). He was cross-examined to the effect that Radmila was a witness to the events that occurred in Zagreb and Skopje in September/October 2009 and that, if she had to give evidence, she could do so; and he accepted that she had previously sworn affidavits in the proceedings (see T 31.27-49).

72. [419]

    The matters in respect of which it is submitted that it can be expected that Radmila could have given evidence include the circumstances: of Vase’s travel to Zagreb in 2009 and the facts surrounding he and his mother taking Ljubica from the aged care facility; in which Ljubica was taken to Radmila’s unit in Skopje and the presence of Mr Dabeski at the unit for the preparation of any documents in favour of Vase; in which Ljubica was taken to any official office in Skopje for the purpose of signing any documents Macedonia and the nature of those documents; in which Radmila returned to Australia with Ljubica in April 2010; of any reliance by Vase; and of what she knew, if anything about the alleged Contract for a Gift.

73. [420]

    Second, reference is made to Mr Dabeski. It is submitted that Mr Dabeski was clearly a material witness as to the events in Skopje in 2009. I note that this must have been apparent to Vase if not from the time of his 26 July 2016 affidavit, where reference was made to Ljubica’s “lawyer in Macedonia”, then at least once authenticity of the documents on which he relied was not admitted by Lidija’s defence (filed on 21 October 2016).

74. [421]

    It is submitted that the failure of Vase to make an application for Mr Dabeski’s cross-examination to be taken by audio-visual link at an earlier time (given that the making of any such application was the subject of directions by Kunc J in early 2017) has never been properly explained.

75. [422]

    Of the witnesses who did appear on Vase’s witness list but were not ultimately called, one was Ms Kostovska. It is submitted (and I accept) that she was clearly a material witness being one of the two persons said to have witnessed the critical documents in this case; and that no explanation for her absence was proffered. Another was a Mr Gorgievski Zoran, who I understand occupied the “granny flat” at the Granville property for some time. For Lidija it is submitted that it is not clear what, if any, real relevance he had to the ultimate issues in the proceedings but it is postulated that he may have been able to shed light on the relationship between Vase and Ljubica given his occupation of the granny flat at the house. The last such named witness was Ms Božinoska, who translated the documents in issue. It is submitted that while on its face her affidavit was relevant only to the said translation, it may be expected that she could give evidence as to the source of the documents she translated; that no explanation was proffered for her absence (though my recollection is that I was informed from the bar table that she was undergoing some kind of medical procedure) and it is noted that it had been made clear earlier in the proceedings the forensic purpose of the proposed cross examination of Ms Božinoska.

76. [423]

    The question raised in oral submissions at close of the hearing in this regard was whether it is permissible to draw an adverse inference on the basis of a plaintiff’s failure to call a defendant as a witness; i.e., on the basis of the failure of Vase to call Radmila to give evidence in his case. Radmila, as noted earlier, had filed a submitting appearance once she was joined as the second defendant in the proceedings. She did not file a defence, call any evidence or take any active step in the proceedings before me.

77. [424]

    A number of cases on this topic have been concerned with the drawing of an inference from a failure to call a witness who is also a party to the proceeding. It is clear that an adverse inference may be drawn (if the other conditions are satisfied) against a defendant who fails to give evidence in his or her own case, or fails to call another defendant (Jones v Dunkel was such a case; see also Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 at 119-120 (McHugh J); [1993] HCA 31; MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607 at [42]; 96 ACSR 691). Equally, an adverse inference may be drawn against a plaintiff if he or she does not give evidence in his or her own case (see In the matter of Ledir Enterprises [2013] NSWSC 1332 at [11]; 96 ACSR 1).

78. [425]

    In some cases it has been considered that a defendant to the proceedings is in fact in the plaintiff’s “camp”. This may have the result that the defendants have a satisfactory explanation for failing to call him or her and that no adverse inference will be drawn against the defendants by reason of that failure (see for example Vale v Vale [2001] NSWCA 245 at [92]; see also Fabre v Arenales (1992) 27 NSWLR 437 at 450 (defendant expected to be unreliable due to possibility of bearing personal liability for motor vehicle accident); Spence v Demasi (1988) 48 SASR 538 at 548-549 (defendant expected to be unreliable due to close relationship with plaintiff)).

79. [426]

    Thus it would seem that whether the witness is a party to the proceeding is material to the question whether an adverse inference should be drawn only so far as it provides a possible explanation for the fact that the witness is not called or otherwise. In ordinary adversarial litigation, a plaintiff would not, for example, be expected to call a defendant who may give evidence adverse to the plaintiff’s case for reasons unconnected to the facts which are in issue (such as that defendant’s hostility to the plaintiff or, as seems likely in the present case, an interest in the outcome of the proceeding).

80. [427]

    It is not necessary here further to explore the interesting issue as to whether in principle an adverse inference would be available to be drawn in such circumstances because in my opinion there is a perfectly plausible reason why Radmila (who certainly would otherwise seem to be someone in Vase’s “camp” and who, on his evidence, would have been available to give evidence) would not be called to give evidence in Vase’s case. That is because if Vase’s claim succeeds, there will be no estate left out of which provision could be made for Radmila and the order made by consent for the making of provision to her of an amount comprising 42.5% of the estate will necessarily not sound in any amount payable to her. Therefore, it is in her interest (at least to that extent) for Vase not to succeed in the proceeding. That puts her squarely out of his “camp” in my opinion. The fact that Radmila chose not actively to defend the proceedings does not persuade me otherwise. That is because, had she done so, there would be a risk that she would incur a liability for costs.

81. [428]

    Thus it seems to me that there is an obvious explanation for the fact that Vase did not seek to call Radmila to give evidence (accepting that he could have subpoenaed her to give evidence in his case even though she is a defendant – though to do so would have required him to lead her evidence as a witness in chief).

82. [429]

    I therefore do not draw any adverse inference from the fact that Vase did not call Radmila as a witness. That said, the fact that she gave no evidence means that any contested factual dispute involving her conduct falls to be determined without the benefit of any evidence she might have been able to give in Vase’s favour on that dispute. That, however, is a forensic disadvantage that it must be assumed Vase has been willing to accept.

83. [430]

    There is some irony in the suggestion that a Jones v Dunkel inference should be drawn from the failure of Vase to call evidence from Mr Dabeski, in circumstances where Vase clearly did seek to call that evidence – having applied for Mr Dabeski’s evidence to be taken via audio-visual link – and Lidija having staunchly opposed such a course.

84. [431]

    I do not draw any adverse inference from the fact that Mr Dabeski did not give evidence in those circumstances. Whether or not Mr Dabeski in fact suffers from aviophobia (see American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Publishing), 197-202) to the extent that he would not (without being compelled in some fashion to do so) attend Court in this country to give evidence, I am prepared to accept that he declined to do so. That, to my mind, provides a sufficient explanation for his failure to attend so as to preclude the drawing of a Jones v Dunkel inference.

85. [432]

    The failure to call Ms Kostovska is markedly different. She was clearly a material witness who could be expected to give evidence in relation to the critical issue as to what happened on 13 and 14 October 2009. She was listed as someone who would give evidence. An affidavit (or at least a purported affidavit, given that it was not properly attested) made by her was served in advance of the hearing and there was no application made for her to give her evidence on audio-visual link (from which I infer that she was prepared to attend and give evidence). Moreover, at the commencement of the hearing I was assured by Counsel for Vase (in the context of the application to allow Mr Dabeski’s cross-examination by way of audio-visual link) that Ms Kostovska would attend.

86. [433]

    There was no explanation for the very late notification that she would not be attending for cross-examination. In all the circumstances I would draw the inference that nothing she could have said would assist Vase’s case. That is significant in light of Mr Danilov’s inability to recall attending at the public notary’s office for a second time on 14 October 2009. The fact that Ms Kostovska did not give evidence enables me more comfortably to reach the conclusion I have that the Contract for a Gift was not authentic because, on the balance of probabilities, there was no such meeting on 14 October 2009. I would have reached that conclusion (for the other reasons given) without any Jones v Dunkel inference – I simply note that this fortifies that conclusion.

87. [434]

    In circumstances where I do not accept that he could be expected to have given evidence relevant to the critical issues in the proceeding I draw no adverse inference from the fact that Mr Zoran was listed as a witness (and that an affidavit of his was served by Vase’s lawyers) but he was not ultimately called to give evidence.

88. [435]

    I accept that Ms Božinoska may have been able to shed light on the confused evidence as to what documents were provided by Vase for translation by her and that there was no evidence (simply an explanation from the bar table) as to the fact that she was not produced for cross-examination but, in circumstances where Exhibit B was ultimately produced by Vase on the second day of his evidence (and, on its face, bore original signatures from the witnesses and a stamped thumbprint), I am not persuaded that any adverse inference should be drawn from the fact that Ms Božinoskawas not able to be challenged in cross-examination on that issue.

Authenticity of VA6 (the Macedonian Power of Attorney) and VA10 (the Contract for a Gift)

1. [436]

   For Lidija it was emphasised that Vase only produced a document that could be a notarised copy of any original document (Exhibit B) on the second day of the substantive hearing – despite the fact that authenticity of the document has been in issue since the original defence to the statement of claim was filed on 21 October 2016; and despite the fact that the original was the subject of the Notice to Produce dated 25 July 2017 and the exchange of correspondence set out in Exhibits 1, 2 and 3.

2. [437]

   Complaint was made that there was no practical opportunity to examine the document and it is submitted that the document, as it appears in various places in the evidence, is materially different (comparing Exhibit B with the copy which is Annexure VA10 of Vase’s affidavit sworn 2 November 2017; and comparing it with the document annexed to Mr Danilov’s first – but not read – affidavit appearing in the Court Book). It is submitted that there has been no explanation for the differences and no explanation or adequate explanation for not producing the original of the document from which Exhibit B may have been notarised; and hence, in all the circumstances, there was good reason for Lidija to put the document in issue.

3. [438]

   That said, it was accepted for Lidija in closing submissions that there is a basis on which the Court might infer that the document that is Exhibit B is authentic (if it is accepted that there is no material difference in the translation of the various versions of the document and that Vase provided a version of the document to his original solicitors – referring to Exhibits 12 and 13). (Of course, Lidija still submits that the Macedonian Power of Attorney does not contain the representation asserted and that it is vitiated by Ljubica’s lack of capacity at the time it is said to have been made.)

4. [439]

   There remains a real dispute as to the authenticity of the alleged Contract for a Gift. It is submitted for Lidija that Vase has not discharged the onus of proving the authenticity of this document, for a number of reasons: that no original has been produced, despite the Notice to Produce served in July 2017 for its production, and there has been no or no adequate explanation of the failure to do so; that Vase has not produced any original notarised copy of this document (and it is said that he has obfuscated in relation to questions about it); that Mr Danilov’s affidavit evidence of the execution of such a document is unreliable (significance being attached to the fact that he did not bring with him to Court the annexures that are said to have formed part of the original affidavit – see Exhibit 15); that other key witnesses in relation to the document were not called; that the document was not ever produced to Vase’s original lawyers; that the document was not produced to the Guardianship Tribunal when application was made in 2010 to that Tribunal; and that the first reference made to that document was in Vase’s affidavit of 26 July 2016 (served after the settlement agreement in relation to the family provision proceedings was signed on 23 March 2016) notwithstanding (it is said) that on his own case Vase has known about it since 2009; and, finally, that the document is dated 14 October 2009 (pointing to Mr Danilov’s evidence to the effect that he only recalls one visit to the public notary’s office).

5. [440]

   Again if, contrary to Lidija’s submissions, the Contract for a Gift is found to be authentic, Lidija says that Ljubica lacked capacity to make it and/or that it was procured by undue and influence and/or unconscionable conduct.

6. [441]

   There was much confusion in the course of Vase’s cross-examination as to the whereabouts of the original version of the document or documents said to have been provided to Vase at the public notary’s office on 13 October 2009 (which is when he says he received certified copies of the Macedonian Power of Attorney) and as to the original version of the document he said he received following an enquiry by his solicitor (when it is said he received a certified copy of the Contract for a Gift).

7. [442]

   So, for example, there was cross-examination as to what it was that was taken to Ms Božinoskafor translation (see Exhibit 6) (see from T 17.3-T 19.9, 7 June 2018); and whether the document left at her office was later collected by Vase or by Radmila (see T 19.7-19.27 in relation to the Macedonian Power of Attorney; T 19.49-20.4 in relation to the Contract for a Gift). The confusion became apparent when Vase was questioned as to whether, when he took the documents to Ms Božinoskaoffice for translation he only had one copy of the documents and that they were the only copies that he ever had (see T 22.7-25.3). That confusion continued when Vase was questioned as to whether the version of the Macedonian Power of Attorney annexed to Ms Božinoska’s affidavit (Exhibit 6) had ever been put in any affidavit sworn by him in the proceedings (see from T 28.45-31.1).

8. [443]

   Ultimately, as I understand Vase’s evidence, his position is that when he left Macedonia on 13 October 2009 he had with him one or two certified copies of the Macedonian Power of Attorney which he had been given in the public notary’s office (what I might refer to as the “original certified copies”), from which from time to time a number of copies were made (for the purposes of translation or otherwise) and that he left one of the original certified copies at Ms Božinoska’s office (which appears to be the document annexed to the original sworn affidavit of Ms Božinoska); and that, after he contacted his present solicitor (Mr Oliveri), the Contract for a Gift document was sent to his solicitor, one or more copies of that document were made and a copy of that document was given to the office of Mr Bozinovski (another accredited translator and the husband of Ms Božinoska) (see T 24.21ff). Vase referred to “bundles of copies” of the documents (see also T 30.47).

9. [444]

   It was submitted for Vase that the certified copy of the Macedonian Power of Attorney was the document that was annexed to the affidavit of Ms Božinoska, having regard to the extract from the notary seal, Ms Božinoska having stated that “This is to certify the above translation is an exact translation of a copy of a notary seal”.

10. [445]

    Vase was adamant that he did not have a copy of the Contract for a Gift until he came to the office of Mr Oliveri (see T 25.38-27.26). He was asked to search at home (and ask his mother) for the whereabouts of the actual document or documents he took away with him from Macedonia. That led to the production on 12 June 2018 of the document which became Exhibit B (the significance of which I refer to below).

11. [446]

    Vase accepted that the Macedonian Power of Attorney that was annexed to Exhibit 6 (Ms Božinoska’saffidavit) was a different document from that which was annexed to his 2 November 2016 affidavit (and marked VA10 – see CB 1/173), by reference to the different location of the thumbprint on the respective documents and the different location of the signature of Ms Kostovska on those documents (see T 28.20-44).

12. [447]

    The existence of two different versions of the Macedonian Power of Attorney (and the fact that the version annexed to Ms Božinoska’saffidavit – Exhibit 6 – had not previously been annexed to any affidavit in the proceedings) not surprisingly excited some suspicion on the part of Lidija but ultimately is explicable if (as Vase claims) two copies of the Macedonian Power of Attorney were executed by Ljubica and certified by the public notary on 13 October 2009.

13. [448]

    A significant development in that regard was the production by Vase on 12 June 2018 of a document that clearly bears signatures in blue coloured pen and has all the appearance of an original signed document (Exhibit B). I have concluded that if Vase took any signed document with him when he left the public notary’s office on 13 October 2009, it must have been this one. (Pausing here, this belies the proposition put by Vase’s lawyers in August 2017, presumably on his instructions, that the originals of the documents were not in his possession – at least in relation to the Macedonian Power of Attorney.)

14. [449]

    Based on that document (and the evidence of Mr Kurtovic and, more importantly, Mr Danilov as to their attendance at the public notary’s office on 13 October 2009, which corroborates Vase’s evidence), I have concluded that the Macedonian Power of Attorney is an authentic document.

15. [450]

    I have concluded the opposite in relation to the Contract for a Gift. It has not been established on the balance of probabilities that such a document was executed by Ljubica. No plausible reason was put forward for the need to go to the public notary’s office on two successive days (with all the difficulty that transporting Ljubica there would entail) to sign the two separate documents; the communications with Mr Dabeski that were in evidence are inconsistent with the proposition that there were two separate visits to the public notary; Mr Danilov did not give evidence beyond the mere possibility that there was a second visit by him to do with anything about Ljubica; Mr Kurtovic did not recall a second visit.

16. [451]

    To the extent that anything can be drawn from the typeface of the copy (as it appears in Exhibit 6), it appears unlike that of the Macedonian Power of Attorney. There was no reference to this document in any communication before the joint settlement conference in March 2016 and the circumstances in which it made its appearance are such as to raise a strong suspicion that this document was simply manufactured to support Vase’s claim.

17. [452]

    In reaching the conclusion that the document relied on by the plaintiff is not an authentic document, I have taken into account the “inherent unlikelihood” that someone in Vase’s position would have forged the document or knowingly propounded a forgery (see Telfer v Telfer (2014) 87 NSWLR 176 at 189-; [2014] NSWCA 186 (Sackville AJA, Macfarlan and Gleeson JJA agreeing)). This is an application of the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct … and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”: (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]; 67 ALJR 170 at 171; and see Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 at [105]).

18. [453]

    I make no finding that it was Vase who brought the document into existence. However, on the standard indicated by Briginshaw (and taking the above into account) I am convinced that Ljubica did not execute the document in the public notary’s office on 14 October 2009. Thus while I find the Macedonian Power of Attorney to be an authentic document, I find that the contract for a gift is not an authentic document.

19. [454]

    As noted earlier, Vase relies upon both of the critical documents to establish his case, Counsel for Vase having submitted (plaintiff’s closing submissions at [4]):

20. [455]

    In light of Vase’s concession at the close of the hearing, this disposes of his claim. Nevertheless, I go on briefly to address the remaining issues.

Promissory estoppel claim

1. [456]

   It is useful at this point to summarise my factual findings thus far:

   1. (1)

      Lidija travelled to Sydney on 9 February 2009. I accept her evidence that she did not at that stage have a concluded intention that her mother should move back to Zagreb to live with her but, rather, was concerned as to her mother’s welfare.

   2. (2)

      When Lidija came out to Australia in February 2009, Ljubica was in very poor physical health and the Granville property was in an unhygienic condition. Lidija took Ljubica to Dr Latif on 10 February 2009. Dr Latif advised that Ljubica should be hospitalised but Ljubica resisted hospitalisation (and Dr Latif did not insist upon hospitalisation).

   3. (3)

      Lidija consulted with Manuela, and discussed with her mother, the only options they considered feasible for Ljubica’s care at that stage, namely for Ljubica to go and live with Lidija in Croatia (for the foreseeable future). That decision was made at the latest by 16 February 2009 (at which time Dr Latif again examined Ljubica and prescribed a six supply of medication in contemplation of Ljubica travelling overseas) but may well have been made at an earlier time.

   4. (4)

      Ljubica executed a new will (and a power of attorney in favour of Lidjia) on 10 February 2009, making Lidija the sole beneficiary of her estate and appointing her her attorney. The will was prepared by Mr Vassili, a solicitor, after an attempt had been made to see another solicitor (who had drafted an earlier will for Ljubica). I accept that Lidija was distressed that Radmila and Manuela (or Manuela’s children) were not included as beneficiaries in that February 2009 will and took steps that she believed would remedy this by executing a new will of her own on 20 February 2009. From this I infer that Lidija did not induce Ljubica to execute the 2009 will. (In that regard, I note, but do not treat as determinative of the issue, that Vase was advised by his then legal adviser in 2014 that there had, or may have, been some independent assessment of Ljubica’s testamentary capacity as at the time the will was made in 2009; and that there has been no challenge to the validity of that will.)

   5. (5)

      While Lidija was in Sydney in February 2009, arrangements were also made to change Ljubica’s bank account details to permit Lidija to operate that account. I consider this to be consistent with the grant of the power of attorney in Lidija’s favour, in order to enable Lidija to take care of her mother’s affairs at around the time it was contemplated that Ljubica would be living with Lidija in Croatia for the foreseeable future or might otherwise be unable to look after herself.

   6. (6)

      At some stage during Lidija’s visit in Sydney in early 2009 she had a conversation with Radmila in which Radmila expressed her opposition to Lidija taking Ljubica back with her to Croatia. That there was such a conversation is consistent with the communication by Lidija to Manuela at about that time of Radmila’s opposition to the move and consistent with the fact that Vase, when he later asked Mr Kurtovic to see (or find) his grandmother, arranged for Mr Kurtovic to travel to Zagreb to do so. It is also consistent (at least to some extent) with Vase’s evidence that Radmila came out to Australia because it was unlike Ljubica to be away from home for so long. (What was left unexplained is why, if Radmila came to Australia in about March 2009 expecting her mother to be here – which seems to be the thrust of Vase’s account of events – Radmila then stayed in Australia until June 2009, as he said she did; but nothing ultimately turns on this.)

   7. (7)

      When Ljubica went to Zagreb she initially moved in with Lidija and her husband. Ljubica suffered a fall and broke a hip about a month after she went to Zagreb and was admitted to an aged care facility in April 2009. I accept the evidence of Lidija and Ms Derkos to the effect that the aged care facility provided suitable accommodation and care for Ljubica and that Lidija took steps to ensure that her mother had the company of others while she was in the aged care facility. I also accept the evidence of Lidija and Ms Derkos that Ljubica was, at least before her leg was amputated, relatively content at the aged care facility (sometimes happy, sometimes sad).

   8. (8)

      Lidija returned to Australia in July 2009 in order to make arrangements for her mother’s affairs in circumstances where Lidija by then believed that her mother would not be able to return and care for herself in Australia and that if she were living overseas this would have an impact on her pension or other entitlements.

   9. (9)

      Sometime in about July 20090, Mr Kurtovic (and his cousin from Croatia) visited Ljubica at the aged care facility in Zagreb. After that, Radmila and Mr Kurtovic together went to the aged care facility, visiting Ljubica at a time when Ms Derkos was present in the room with Ljubica (and massaging Ljubica’s foot). I accept without reservation Ms Derkos’ evidence of this first encounter with Radmila and Mr Kurtovic (in preference, where there is a conflict, to the account given by Mr Kurtovic). (There is, of course, no account from Radmila as she did not give any evidence in the hearing before me.) On the occasion of this visit, I accept that Radmila introduced Mr Kurtovic as a lawyer; that Mr Kurtovic had documents with him (Ms Derkos said in his hand but also that he was carrying a black briefcase); that Radmila and/or Mr Kurtovic attempted to obtain Ljubica’s signature on a document or some documents (which I infer was or were to the effect of the Macedonian Power of Attorney); and that Ljubica recognised Mr Kurtovic as someone from her church (in Sydney) and refused to sign any documents. Insofar as it was suggested for Vase that any paperwork related to Ljubica’s leg amputation, I reject that as being inconsistent with the timing of events. Thereafter there was at least one visit by Radmila to Ljubica at the aged care facility at a time when Ms Derkos was present.

   10. (10)

       By at least June 2009, there is a record (in documents contained in the later Guardianship Tribunal file) of Ljubica having displayed symptoms of dementia (and of a diagnosis of dementia syndrome), though the extent of cognitive impairment cannot be determined on the evidence before me.

   11. (11)

       In late July 2009, Ljubica was admitted to hospital in Zagreb following complications in relation to her diabetes. Again, I accept without reservation Ms Derkos’ account of events in this regard, including her account of the encounter with Radmila and Mr Kurtovic at the hospital. I note, however, that Ms Derkos did not on that occasion see Mr Kurtovic pressing Ljubica to sign any documents (since neither she nor he were in the room with Ljubica) and that Ms Derkos appears to have formed the view that Mr Kurtovic wanted Ljubica to sign some paperwork because he was carrying the black briefcase she had observed on the previous occasion. By this time, Lidija had returned to Zagreb and she attended at the hospital.

   12. (12)

       After Ljubica’s leg was amputated, she returned to the aged care facility in Zagreb. I accept that Ljubica was distressed at the loss of her leg and that by this time she was not happy at the aged care facility. I also accept that Ljubica conveyed to Lidija at some time after this that she blamed Lidija for the loss of her leg (Lidija gave evidence that her mother had accused her of cutting off her leg – to the extent that this was literally what was said it might perhaps be indicative of a lack of understanding or cognitive impairment but equally it could be an emotional reaction by an elderly woman to the surgery).

   13. (13)

       On 2 October 2009, Radmila and Vase went to the aged care facility (with Mr Kurtovic being in the car with them but not going into the aged care facility this time). This was the only occasion on which Vase visited his grandmother in the aged care facility. From the fact that Radmila, Vase and Mr Kurtovic must have had their belongings with them at the time and had arranged the car in which they drove to Sarajevo (and from the speed with which Ljubica was removed from the facility, around 5 minutes according to Mr Kurtovic’s evidence), I find that Radmila and Vase went to the aged care facility with the intention of removing Ljubica from the facility and that it was not a spur of the moment idea. They took Ljubica with them, without her glasses, dentures, belongings, documents or medication; and without notifying anyone of their intention so to do. They went first to a pharmacy or medical clinic for medication to be prescribed for Ljubica, then drove Ljubica some four hours or so to Sarajevo. They arranged for temporary travel papers to be issued to Ljubica and then together they flew to Skopje.

   14. (14)

       On arrival in Skopje, the four were met by Mr Danilov, who drove them first to a hospital where Ljubica was admitted for about two weeks. From this I infer that Ljubica was unwell at the time she was taken from the aged care facility or during the course of travel from Zagreb to Skopje.

   15. (15)

       While Ljubica was in hospital, Vase arranged to retain the services of a lawyer in Macedonia, Mr Dabeski; and Vase and Mr Kurtovic together attended at Mr Dabeski’s private home to give him instructions. I note that Vase gave no evidence of this attendance on Mr Dabeski.

   16. (16)

       After her discharge from the hospital in Skopje, Ljubica was taken to Radmila’s apartment (on the top floor of the four or five storey apartment building and with no lift access) and was thereafter dependent on Radmila and Vase for her needs and care.

   17. (17)

       Following the receipt of instructions from Vase (at Mr Dabeski’s home), Mr Dabeski attended on Ljubica at Radmila’s unit in the presence of Radmila, Vase, Mr Kurtovic and Vase’s other grandmother. Given that Ljubica was taken from the aged care facility on 2 October 2009, was said to have been in hospital in Skopje for about two weeks, and the Macedonian Power of Attorney was dated 13 October 2009, the attendance of Mr Dabeski at Radmila’s unit must have occurred very shortly after Ljubica’s discharge from hospital and only just before the Macedonian Power of Attorney was executed. There was no opportunity afforded to Ljubica for her to obtain any legal advice in the absence of Vase (who was to benefit from the proposed documentation) or Radmila as to the import or consequences of the proposed documentation. Nor is it clear what advice, if any, was given to her by Mr Dabeski in that regard.

   18. (18)

       At least two copies of the Macedonian Power of Attorney (which, on the balance of probabilities, I infer was prepared by Mr Dabeski) were executed by Ljubica (by affixing her thumbprint to the documents) in a public notary’s office in Skopje in the presence of at least Mr Danilov on 13 October 2009. Present in or near the public notary’s office, but outside the room where the documents were executed, were Vase, Radmila, Mr Kurtovic and Mr Dabeski. While I am prepared to accept (on the basis of Mr Danilov’s evidence) that the public notary read out the contents of the Macedonian Power of Attorney to Ljubica, there is no evidence (and I am not satisfied) that any legal advice was given to Ljubica on that occasion as to the import and consequences of signing the Macedonian Power of Attorney.

   19. (19)

       Vase took with him when he left the public notary’s office on 13 October 2009 at least one certified copy of the Macedonian Power of Attorney bearing the original signatures and thumbprint (Exhibit B) and took that (and at least another copy of the Macedonian Power of Attorney) with him back to Australia, leaving Macedonia on 13 October 2009. That is the only logical explanation for the differences in the respective copies of the Macedonian Power of Attorney that were in evidence before me.

   20. (20)

       The alleged Contract for a Gift is not an authentic document and was not executed by Ljubica at the public notary’s office on 14 October 2009, as alleged by Vase. I am comfortably satisfied that no such meeting at the public notary’s office took place on that day.

   21. (21)

       Vase’s belief, as expressed in November 2014, was that the Macedonian Power of Attorney operated as a will (not that it had conferred on him any inmmediate right of ownership or interest in respect of the Granville property).

   22. (22)

       More likely than not, it was only after Vase was advised by his then lawyer in November 2014 that this belief was incorrect, and after he had agreed in March 2016 to the dismissal of his claim for family provision, that the Contract for a Gift was brought into existence (whether by Vase or by someone else on his behalf).

2. [457]

   With the above in mind, it is important to note the particular representations that are pleaded and relied upon by Vase in these proceedings.

3. [458]

   First, as to the Macedonian Power of Attorney, it is alleged (at [4] of the amended statement of claim) that this document contained a representation by Ljubica that upon the sale of the Granville property Vase would be “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”.

4. [459]

   The relevant portion of the Macedonian Power of Attorney, according to the translation in Exhibit 6, is:

5. [460]

   Pausing there, for Lidija it is contended (and I agree) that at its highest this document contained only an authorisation to Vase to sell the property and utilise the proceeds for his own purposes – something that he never did. Lidija also contends (but I do not accept) that that it did not contain a representation of the kind asserted by the pleading. In that regard, I consider that the authorisation to transfer the proceeds of sale “to his account and for his benefit” has the effect of the representation which is pleaded at [4] of the amended statement of claim (subject to the qualification that it assumes a sale of the property during Ljubica’s lifetime, such a power of attorney having no effect upon her death).

6. [461]

   Second, as to the Contract for a Gift, at [5] of the amended statement of claim it is alleged that this document provided that Ljubica would “leave a gift of her entire assets and real estate property” to Vase. At [6] of the amended statement of claim, it is alleged that the Contract for a Gift contained a representation by Ljubica that:

7. [462]

   For Lidija, it is contended (and I agree) that those pleaded representations refer to steps that would be taken in the future (see (a)) or on Ljubica’s death (in the sense of a testamentary promise) (see (b)); and that neither of the pleaded representations reflects the evidence. The Contract for a Gift, as translated, speaks in the present (not future) tense (“I give as a gift my entire property and assets (possessions) to my grandson”) and makes no reference to any will or testamentary intention.

8. [463]

   None of the three pleaded representations is in terms a representation that the Granville property was (as and from October 2009) immediately to belong to Vase (as was his stated belief, by reference to the Macedonian Power of Attorney, in the witness box). Even though the effect of the Macedonian Power of Attorney (which I have found to be authentic) in its terms was that Vase would have been entitled to sell the Granville property and to use the proceeds of sale for his benefit as if they were his, in terms the entitlement to the proceeds of sale was dependent on a sale of the property (which did not occur in Ljubica’s lifetime). This was not expressed as (nor do I find that it conveyed) a representation as to the making of an immediate gift of the property to Vase (which is what Vase now suggests he understood from that document); and there is nothing to indicate that any sale of the Granville property was contemplated by Ljubica at that stage or at any other time.

9. [464]

   Vase’s submissions largely focussed on the Contract for a Gift (perhaps because of the difficulties for him in basing his claim on the limited representation conveyed by the Macedonian Power of Attorney). In particular, for Vase, it is submitted that the requisite certainty for a representation or promise to give rise to a promissory estoppel is satisfied by the provision in the Contract for a Gift (as translated by Ms Božinoska – Exhibit 6), said to be unambiguous, that:

10. [465]

    It is submitted that there is also certainty with respect to the act of making the representation or promise to Vase, having regard to the “deliberate act of entering into the documents with the formality of having it witnessed by two independent witnesses and in the office and in the presence of the Public Notary”. It is submitted that the documents were not intended to be trivial or treated lightly, especially by Vase; and that there “was a sense of formal occasion due to their importance”. It is submitted that:

11. [466]

    Insofar as Vase’s case depends on the Contract for a Gift, which I have found is not authentic, it must fail. Any reliance on such a document, not being an authentic document, could not be reasonable (particularly when the document itself was only received by Vase, on this evidence, after Ljubica’s death). Had (contrary to my conclusion) the Contract for a Gift been an authentic document then, while it does not contain the representations as pleaded, I accept that in its terms (as translated) it is expressed as an immediate gift (though the heading “Agreement for a gift” is not then explicable). Thus, had it been authentic and validly executed by Ljubica, I would have accepted that it conveyed a representation as to the making of an immediate gift of the property.

12. [467]

    As to the requirement for detrimental reliance, it is submitted that (at least for some of the expenses said to have been incurred by him) Vase satisfies the test for reliance – however that test may properly be expressed; namely that he “would have acted differently” but for the representation or that the representation was a “contributing cause” or “influenced” his conduct. It appears to be conceded by Vase that the incurring of expenses that Vase would likely have paid for himself in any event (such as the purchase of a fridge) would not necessarily satisfy the “would have acted differently” test, but it is submitted that nevertheless the “contributing cause” test is satisfied in respect of those items.

13. [468]

    As to the questions put to Vase in cross-examination as to whether the expenses incurred by Vase would have or could have been reimbursed by the NSW Trustee & Guardian (including the tiling of the house, installing a wheelchair ramp, putting the house into an habitable state, as well as the acquisition of general household items such as a fridge) in essence it is said that this is not to the point – what is relevant is that the expenses were incurred.

14. [469]

    For Vase it is said that certain of his evidence in relation to detrimental reliance went unchallenged (referring to his affidavit sworn 2 November 2016 at [91]-[94]; [96]; [100]). In particular, it is noted that, at [100], Vase deposes that, on or about 13 March 2013, Ljubica’s condition had worsened and he stopped working so that he could provide additional assistance. Vase places emphasis on this, submitting that this indicates a sense of moral indebtedness on his part (i.e., that the changes he made to the Granville property and his giving up work to care for Ljubica can be seen as being in discharge of the moral debt arising from Ljubica’s promise of the Granville property) and both “establishes the requisite reliance and detriment necessary to ground the estoppel” and makes it unconscionable for Ljubica (through her executor) to resile from that promise.

15. [470]

    Adopting a “tick the box” approach (despite the recognition by Counsel for Vase that the six propositions articulated by Brennan J in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 (at 428-429); [1988] HCA 7 (Waltons Stores) are not to be applied mechanically), for Vase it is submitted: first, that he assumed or expected that he would become the legal owner of the Granville property; second, that Ljubica induced him to adopt that assumption or expectation by her execution of the documents on 13 and 14 October 2009; third, that he acted on that assumption or representation by making the Granville property habitable and wheelchair accessible and took care of Ljubica there (including leaving his job to do so and paying for expenses) and that he “implicitly” abstained from asking Ljubica “to make a further will to the same effect of the documents that he is already relying upon”; fourth, that Ljubica knew that he (and Radmila) were doing all such things to care for her at the Granville property; fifth, that he will sustain detriment if Lidija, as executor, now fails to honour the promise to transfer the Granville property to him “as contained within the relevant documents”; and, sixth, that Lidija as executor is not proposing to transfer the Granville property to Vase without an order from the Court.

16. [471]

    For Lidija, apart from the submissions that none of the pleaded representations arises from the respective documents (and leaving aside questions of validity or capacity), the following submissions are made.

17. [472]

    First, in relation to the Macedonian Power of Attorney, it is submitted that, applying NSW law (which includes the Powers of Attorney Act 2003 (NSW)), since it is not expressed to be “irrevocable” within the meaning of s 16(1) of the Act, the authorisation expired on Ljubica’s death (and there is no basis, pleaded or otherwise) for any implication that Vase was to be entitled to the proceeds of any sale of the Granville property after Ljubica’s death.

18. [473]

    Second, as to the Contract for a Gift, it is pointed out that Vase’s asserted belief (to which he deposed in his affidavit evidence and confirmed in cross-examination) was that he had already in fact been given Ljubica’s assets (in 2009) (cf his statement to his former lawyers as to his belief that the Macedonian Power of Attorney was a will).

19. [474]

    As to the alleged reliance, Lidija contends that there is no evidence of reliance by Vase on any representation that might be found to have been contained in the relevant documents for the following reasons.

20. [475]

    First, it is submitted that Vase and Radmila moved into the Granville property as a matter of convenience only – in that Vase obtained the benefit of accommodation without the obligation pay any rent and received a payment (as carer) of $150 per week.

21. [476]

    Second, that the kind of work Vase deposes to having carried out on the Granville property (and its timing) coincides with the application made by Lidija in May 2010 for guardianship and financial management orders in relation to Ljubica. Lidija points to the report dated 18 June 2013 from the NSW Trustee and Guardian which makes reference to a series of payments or allowances made on behalf of Ljubica after the making of the financial management order on 26 October 2010; and to an earlier report dated 31 August 2010 made by a social worker (Ms Blaxland) to the Tribunal, in which reference is made to Ljubica needing specialised equipment including a lifting “hoist” and “modifications” to the house.

22. [477]

    It is submitted that to the extent that Vase asserts he did repairs and improvements to the property and purchased a “lifting device” and a “special bed” in reliance on any representation contained in the relevant documents that assertion should not be accepted; and that it should be concluded that such items were paid for by funds released by the Public Guardian as set out under the entries “[a]llowances paid to client” and “Medical Equipment”.

23. [478]

    Further, it is submitted that Vase’s assertion that he paid “insurance in respect of the property” and “Council rates” should not be accepted since the report of the NSW Trustee & Guardian makes it clear that, by 13 June 2013, funds had been released by it for those purposes. To the extent that utilities were paid by Vase, Lidija submits that the primary beneficiaries of those services were Vase and his mother. Lidija also submits that personal items such as “gloves”, “night time nappies” and “medication” were all items that were likely to have been paid from funds released by the NSW Trustee & Guardian or paid for by Medicare entitlements.

24. [479]

    As for capital items, such as furniture, a stove and a refrigerator said to have been acquired for the benefit of Ljubica, reference is made to Vase’s affidavit read in relation to the gross sums costs order application before Kunc J (Exhibit 13), in which Vase deposed that he owned $10,000 worth of furniture.

25. [480]

    More generally, as to the invoices annexed to Vase’s affidavit, it is submitted (and I accept) that they are “an indecipherable jumbled mess” that do not correlate with any specific item of expense claimed to have been incurred by Vase in reliance on the alleged representations. It is further noted that there is no indication as to what, if any, of those expenses may have been allowed for or reimbursed by the NSW Trustee & Guardian from funds released by it.

26. [481]

    Pausing here, there is also a submission made for Lidija that, insofar as Vase has claimed privilege in certain documents produced from his former solicitor’s file, the Court is entitled to infer “that those documents were relevant to issues in this case including the question of reliance” and to draw a Jones v Dunkel inference that there is nothing in those documents that would assist his case. I address that argument in due course (see [507] below).

27. [482]

    If there were to be found any kind of reliance by Vase on any representation contained in the relevant documents, it is submitted for Lidija that no detriment (or no relevant or significant detriment) will be suffered by Vase if the expectation is not fulfilled (here referring to the decision of the High Court in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [85]).

28. [483]

    In that regard, it is submitted that Vase (and Radmila) have had the benefit of rent free accommodation in the Granville property from May 2010 to November 2016 and that this rental saving (calculated on a notional rental of $23,920 per year – being $460 per week for six and a half years – amounting to $155,480) is far in excess of the amount (approximately $100,000) that Vase he estimates he spent “on the property and welfare of [Ljubica]”.

29. [484]

    In Australia, the label “promissory estoppel” generally refers to the doctrine considered and applied by some members of the High Court (Mason CJ and Wilson J, and Brennan J (as his Honour then was)) in Waltons Stores. (Deane J (at 443-446) and Gaudron J (at 460; 464) agreed in the outcome but did not decide the case on the basis of equitable estoppel.)

30. [485]

    The following principles can be stated. A promissory estoppel will not arise from a mere executory promise to do something (Waltons Stores at 406 (Mason CJ and Wilson J)). “Something else” is required in order to attract the intervention of equity. What emerges from Waltons Stores is that a promissory estoppel may be established where the plaintiff proves that the defendant induced or created an expectation or assumption that a particular legal relationship existed or would come into existence or that a promise would be performed (see Waltons Stores at 406; 428-429); that the plaintiff, to the knowledge of the defendant, has relied on that assumption and would suffer detriment if the defendant was to depart from the assumption; and that the circumstances are such that the estoppel is binding in conscience on the defendant (Waltons Stores at 416; 419-420); that is, such that it would be unconscionable for the defendant to depart from the assumption (Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472; Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 at [125]).

31. [486]

    Where those circumstances exist, equity can grant relief to avoid the detriment which would be suffered if the expectation or assumption was to go unfulfilled (Waltons Stores, 423). It has been said that the action, or abstaining from action, in reliance upon the assumption or expectation, is what invites the intervention of equity in a promissory estoppel case (this being a parallel with proprietary estoppel) (Walsh v Walsh [2012] NSWCA 57 at [13]).

32. [487]

    In Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; (2014) 17 BPR 33,457 (at [145]-[147]) White J (as his Honour then was), characterised the requirement for a particular legal relationship in the first of Brennan J’s six propositions as the “narrower view” and contrasted it with the “broader view” reflected in the joint judgment of Mason CJ and Wilson J and the formulation of principle by Priestley JA in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582. His Honour rejected the narrower view and any rigid requirement for a belief as to current rights, or as to whether the defendant is legally bound to proceed, finding that non-satisfaction of Brennan J’s first proposition did not preclude the conclusion that it was in all the circumstances unconscionable for the appellants to depart from the assumption that the plaintiff had in that case adopted. This approach was affirmed on appeal, the Court of Appeal indicating that it is unconscionability, rather than “ticking the box” of each of Brennan J’s elements, which will be decisive. (To similar effect, in Arfaras v Vosnakis [2016] NSWCA 65; (2016) 18 BPR 35,819, at [75], I noted that the cases show a wide range of variation in both the main elements – there of proprietary estoppel – namely, the quality of the assurances and the necessary reliance thereon; and that this emphasised that the doctrine applies only if these elements, in combination, make it unconscionable for the person giving the relevant assurance(s) “to go back on them”.)

33. [488]

    An issue left unexplored by the plaintiff’s submissions is the significance of statements which have now been made on a number of occasions by the Court of Appeal to the effect that “a promissory estoppel must be negative in substance” (DHJPM Pty Ltd v Blackthorn Resources Limited (2011) 83 NSWLR 728; [2011] NSWCA 348 at [93] (Handley AJA) and at [47] per Meagher JA; and see Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 at [73]-[74]; Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 at [26] (Meagher JA); Ashton v Pratt at [138] (Bathurst CJ); see also the discussion in CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798 at [340]-[342].) The promissory estoppel here sought to be relied upon is not negative in substance. What Vase is seeking to do is to raise a promissory estoppel so as to acquire a positive right to relief in equity independent of a postulated contract. Hence the difficulty posed for his case by the authorities referred to above. In any event, for the reasons set out below, even if a promissory estoppel could theoretically be raised in this context, it would fail on its merits.

34. [489]

    The claim based on representations contained in the Contract for a Gift can be disposed of at once. It does not arise in light of my finding that it is not an authentic document (and even if it were an authentic document it does not contain the pleaded representations).

35. [490]

    By contrast, I have accepted that the Macedonian Power of Attorney was an authentic document and that it contains a representation to the effect of that pleaded (though premised on there being a sale of the Granville property during Ljubica’s lifetime). As to this document, Lidija submits (and I accept) that at common law there is a power to recognise the validity of a foreign power of attorney (in this context referring to Ghosn v Principle Focus Pty Limited (No. 2) [2008] VSC 574 at [39] per Forrest J) (Ghosn) and notes that in the present case no evidence has been adduced as to Macedonian law (concerning either the formal validity of the Macedonian Power of Attorney or as to the requirements relevant to the capacity of the donor of a Power of Attorney and how that power may be affected under Macedonian Law if the donor’s capacity is impaired). In those circumstances it is submitted (and I accept) that the Court assumes that foreign law is the same as the law of the forum (see Ghosn at [40]).

36. [491]

    On any view, the “representation” conveyed by the Macedonian Power of Attorney (that Vase would be entitled to full use of the proceeds of sale of the Granville property) was not a representation of existing fact, because at the time it was made, the property had not been sold and no proceeds existed. Nor was the statement made by Ljubica in the Macedonian Power of Attorney a promise made in exchange for consideration, resulting in an executory or partly executory contract. Nor can the statement be construed as a present gift, taking immediate effect: that is because no proceeds of sale existed at that time. Rather, the representation pleaded at [4] is best characterised as a promise, not in exchange for any consideration, that at a future time (after, and assuming that, Vase had sold the Granville property) Vase would have the beneficial ownership of the proceeds; that is, the right to deal with the proceeds as though they were his own funds. (In my view, it is inaccurate to call this a “representation”; unless it was a representation as to the happening of a future event; but nothing turns on the label given to it.)

37. [492]

    The fact that the promise was to take effect in the future is not, in itself, a problem for Vase, because promissory estoppel can comprehend such a promise (see Waltons Stores per Mason CJ and Wilson J at 399, where their Honours said that “[p]romissory estoppel certainly extends to representations (or promises) as to future conduct”). However, the difficulty is that the making of a promise to do something is not in itself sufficient to ground the estoppel. Thus, as Mason CJ and Wilson J went on to say (at 406):

38. [493]

    Brennan J in his judgment in Waltons Stores also adverted to this point (at 421):

39. [494]

    Brennan J also observed (at 421) that “the doctrine has no application to an assumption or expectation induced by a promise which is not intended by the promisor and understood by the promisee to affect their legal relations”, giving, as an example of where that element was absent, the case of Attorney-General (Hong Kong) v Humphreys Estate [1987] 1 AC 114, where an agreement in principle had been made “subject to contract”. The claim based on an equitable estoppel failed in that case. Brennan J remarked (at 422), based on that authority, that in order for an equitable estoppel to be made out, there must be an assumption or expectation that the other party was “bound” to do or not to do something. His Honour explained the relevance of this element to the unconscionable conduct underlying the estoppel in the following passage (at 423):

40. [495]

    A case applying those statements of Brennan J is DHJPM Pty Ltd v Blackthorn Resources Limited, where Meagher JA (with whom Macfarlan JA agreed) remarked, in relation to promissory estoppel, (at 740) that:

41. [496]

    In DHJPM, the expectation, said to have been induced in a prospective sub-lessor by a prospective sub-lessee of commercial premises, was that the parties would negotiate in good faith for a sub-lease and would enter into a binding contract. Meagher JA (at 741-742, in a statement which appears to contemplate both promissory and proprietary estoppel) concluded that for either a promissory or proprietary estoppel to be made out it ought to have been established that the promise or expectation was intended by the promisor and understood by the promisee to affect the parties’ legal relations. His Honour considered that the parties, as experienced businessmen, “should be taken to have expected that any right of occupation, whether by way of sublease or licence, would have to be the subject of a binding contract” (at 745).

42. [497]

    It appears that the representation pleaded by Vase at [4] takes the case into the territory of an assumption or expectation by Vase as to the binding legal effect of a promise made without consideration. The question therefore arises whether that assumption or expectation was induced by Ljubica in such a way that it would be unconscionable for her to resile from it. The unconscionability taking the promise into the territory of promissory estoppel will often arise together with the understanding, induced at some point, that the promisor would not be free to withdraw from it.

43. [498]

    Ordinarily, one would not expect a voluntary promise to make a gift to be accompanied by that understanding. For example, had Ljubica decided the following day to revoke the “authorisation” operative in relation to the proceeds of sale, she could have done so. I fail to see how the statement, operating on its own, could have induced in Vase the understanding that Ljubica was bound to transfer to him the proceeds of the sale of the house. This was essentially founded on the adoption by him of a misunderstanding, and the evidence does not establish how it is that Ljubica’s conduct induced it. Nor is there any subsequent conduct of Ljubica which appears to have induced such an understanding. This is not a case (more commonly seen in cases of proprietary estoppel) where, through frequent reference to the gift over the years, the parties have come to adopt as mutually undeniable an understanding that the promisor was bound to transfer the property.

44. [499]

    However, in any event, I am not persuaded that Vase has established any reliance on any of the asserted representations, let alone detrimental reliance.

45. [500]

    In order to make out a case for relief on the basis of promissory estoppel, it is clearly necessary for Vase to establish that he has acted in reliance on the assumption or expectation; such that he will now suffer detriment if the assumption is not fulfilled. The detriment arising from the non-fulfilment of the expectation is not, in itself, sufficient. In Walsh v Walsh at [13], Meagher JA (with whom Macfarlan JA and Barrett AJA agreed) observed in relation to the element of detriment:

46. [501]

    Detriment is not to be equated with consideration (Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [19]). However, in order to attract intervention on the basis of estoppel, the detriment clearly must be material. In Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14, Gageler J said, speaking generally in relation to detriment which might found an estoppel, (at [150]):

47. [502]

    It may be accepted that there are cases where direct expenditure, for example, in household items or improvements, has been found to establish the detriment on the part of the expending party. In Barnes v Alderton [2008] NSWSC 107, the plaintiff relied on an oral representation that a property would be given as a gift. Although pleaded initially as a promissory estoppel claim, her claim was ultimately framed as a proprietary estoppel claim. Young CJ in Eq (as his Honour then was) said (at [42]):

48. [503]

    In Sullivan v Sullivan [2006] NSWCA 312; [2007] ANZ Conv R 54 (a proprietary estoppel case), the representation relied on (that the first and second respondents would purchase a house for the appellant to live in as her “home for life”, with the requirement to pay minimal rent after the first year) was contained in a Christmas card. Detrimental reliance on the respondents’ promise occurred when the appellant, in March 1996, moved out of her Housing Commission house (which she had obtained in 1990 after waiting for seven years on a waiting list), and when she then committed “money, time, and labour to repainting the inside, carpeting the bedrooms, laying tiling, and renovating the bathroom”: at [7]. In 2004, the first and second respondents gave her six weeks’ notice to leave the property. Hodgson JA held that the appellant’s case based on proprietary estoppel by encouragement was made out.

49. [504]

    However, the evidence does not establish that Vase incurred expenditure of the kind claimed. His answers in cross-examination in that regard were wholly unconvincing. I find that, on the balance of probabilities, the expenses in relation to the special lifting device and spinal bed were met by the NSW Trustee & Guardian; that expenses of a personal nature incurred on behalf of his grandmother were most likely recouped from the funds managed by the NSW Trustee & Guardian; and that expenses relating to furniture and kitchen or other appliances or the like were incurred on items belonging to Vase personally (which he broadly seems to have conceded in cross-examination – though insisting that they were for the use of all the family) and most likely formed part of the $10,000 in assets he claimed to have had in his earlier affidavit filed in the family provision proceedings, since there is no evidence of other assets comprising that value.

50. [505]

    Leaving aside, then, these items of direct expenditure, I reject, on the evidence, the submission that Vase stopped working out of a sense of moral obligation in discharge of his moral indebtedness (having regard to the property belonging to him). What is clear is that Vase obtained a benefit from living rent free in the Granville property over a number of years; he conceded that it was convenient to move there; and he received a carer’s pension (first a part carer’s pension and later a full pension when he stopped work) in exchange for looking after his grandmother. I also note his evidence was that his work had involved a degree of flexibility, such that he claimed when living in Brighton-le-Sands to have been able both to work and to be able to care for his grandmother (there being no lift in those premises and she being wheelchair bound at the time).

51. [506]

    Furthermore, I do not accept that the evidence establishes that Vase in so acting relied on any representation contained in the Macedonian Power of Attorney (and I note that he could not reasonably have relied on the Contract for a Gift at all given that it was not an authentic document and, even if it had been, he could not have relied on it for anything until he was aware of the document, which seems to have been after his grandmother’s death). Indeed, the evidence suggests that any reliance on the Macedonian Power of Attorney was misplaced in that Vase either thought it to be a will (as he said in November 2014) or an immediate gift of the property (as he said in the witness box), it being neither (as presumably the lawyers acting for him in 2010 in the Guardianship Tribunal proceedings would have advised – that document being before the Tribunal). As I have already noted, I do not accept that there was conduct of Ljubica which induced Vase to understand that the representation in the Macedonian Power of Attorney was binding upon her, and in the absence of that element I am not satisfied that for her to resile from it would have been unconscionable.

52. [507]

    In that regard, I have noted above that in closing written submissions, Counsel for Lidija referred to the fact that Vase had claimed privilege over certain (unidentified, for no doubt obvious reasons) documents from his former solicitor’s file (see first defendant’s closing submissions at [7.25]).

53. [508]

    In oral submissions, Counsel for Lidija submitted (at T 20.27-20.31, 22 June 2018):

54. [509]

    Apart from the fact that there is nothing to indicate the subject matter of the documents over which privilege is claimed (and hence nothing to suggest that they relate to any issue of reliance or, indeed, to support the inference that they are relevant to this case), and apart from the fact that I was not pointed to a particular matter which was missing from Vase’s case or which Vase’s evidence failed to explain that might have called for an inference to be drawn, there is a particular difficulty with this submission.

55. [510]

    At common law, there is a clear principle that no adverse inference against a party can be drawn from the fact that a claim to legal professional privilege has been made (see Wentworth v Lloyd (1884) 19 HL Cas 589 at 590-591; 11 ER 1154 at 1155, and, in Australia, see Giannarelli v Wraith (No 2) (1991) 171 CLR 592; [1991] HCA 2). In Giannarelli v Wraith (No 2), McHugh J observed, in the process of finding whether there was a particular agreement between the respondents and their solicitors, (at 605) that “[n]o inference adverse to the respondents can be drawn from their reliance on legal professional privilege” (citing Wentworth v Lloyd).

56. [511]

    See also Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 at 94; Chong v CC Containers Pty Ltd (2015) 49 VR 402 at 465; [2015] VSCA 137; Cooper v Hobbs [2013] NSWCA 70 at [61]-[62]; although for completeness I note that in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [132], Heydon J, after referring to the common law rule in Wentworth v Lloyd, observed that “the Evidence Act (Cth) … does not make it clear whether the common law position in that respect continues”.

57. [512]

    The Victorian Court of Appeal has recently observed that it is important to distinguish this principle from the “process of inferential reasoning in Jones v Dunkel”. The latter is concerned with the drawing of an inference from the absence of evidence from a witness, rather than the drawing of an inference from the fact of the privilege claim, which, the Court noted, is not permissible (Chong v CC Containers Pty Ltd at 465-466).

58. [513]

    I was not directed to why an adverse inference should be drawn in accordance with Jones v Dunkel from the absence of the documents. It was not clear why I should conclude that the documents which were the subject of the privilege claim were capable of shedding light on a fact in issue. I would not draw any such inference and I reject Vase’s submissions on this point.

59. [514]

    That does not alter the conclusion I have already reached that there was no relevant reliance capable of supporting a promissory estoppel claim in relation to the only representation I have found was conveyed (namely, the representation that, if the Granville property was sold – during Ljubica’s lifetime, then Vase could have full use of the proceeds of sale and treat those as his moneys). The promissory estoppel claim thus fails.

Capacity

1. [515]

   At the outset, Counsel for Lidija accepts that she bears the onus of proof in relation to the allegation of incapacity (see Szozda v Szozda [2010] NSWSC 804 (at [20]-[26] per Barrett J, as his Honour then was) (Szozda), there being a presumption “that a person of full age is capable of managing his or her affairs” (per Barrett J at [21], citing Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36]).

2. [516]

   Lidija points to the legislation in this forum in relation to powers of attorney (namely, the Powers of Attorney Act), noting that in Szozda it was concluded (at [19]) that the Act does not constitute a code for applications in relation to Powers of Attorney and therefore does not oust other aspects of the Court’s jurisdiction where a Power of Attorney becomes the subject of an application for relief commenced and prosecuted in the ordinary way. Thus it is said (and it was not disputed by Vase) that the claim in relation to capacity falls to be considered pursuant to the general law, unaffected by the provisions of the Powers of Attorney Act.

3. [517]

   As to the test to be applied in relation to capacity to make a valid power of attorney, Lidija notes that in Szozda, his Honour (there considering an enduring power of attorney) said (at [35]-[36]):

4. [518]

   In the present case, Lidija points to the following matters as going to the question of capacity.

5. [519]

   First, that two attempts were made by Radmila and Mr Kurtovic (who are said to have been acting as Vase’s agents at the time) to seek that Ljubica sign certain documents. It is submitted that in all the circumstances it would be inferred that the document sought to be signed was the Macedonian Power of Attorney (or a document to similar effect) (assuming, as I have found, that Exhibit B is an authentic document). That inference is said to be derived from Vase’s actions following him becoming aware of the Power of Attorney in favour of Lidija and the ultimate evidence going to what he achieved, namely, the signing of the Macedonian Power of Attorney.

6. [520]

   Second, that Ljubica was in a distressed and anxious state following her two operations in Zagreb: first, for her hip and, second, for the amputation.

7. [521]

   Third, that on 19 June 2009, Ljubica was diagnosed with dementia. It is submitted that her general health and vision were extremely poor and that her capacity to understand and sign any document of the kind of the Macedonian Power of Attorney, at the time she was removed from the Zagreb aged care facility, was close to nil. In that regard, Lidija refers to documents taken from the Guardianship Tribunal file in respect of the period from March 2009 to 14 October 2009 (CB 2/851-857), including the hospital admission documents of 19 June 2009 and the discharge record on 24 June 2009 that refers, under the heading “[h]istory of illness”, to verification of dementia syndrome and to “Demential in Mb Alzheimer”; as well as to notes of discharge from the Zagreb Clinical Hospital Center on 27 July 2009 to similar effect.

8. [522]

   Fourth, that in October 2010, Ljubica’s estate was made the subject of a financial management order by the Guardianship Tribunal (from which it is submitted that an inference of incapacity can also be drawn).

9. [523]

   It is submitted that (whatever happened at Radmila’s unit or the public notary’s office in October 2009) Ljubica could not see, was immobile and was suffering from dementia such that it could not be said she had capacity to understand the import of a document such as the Macedonian Power of Attorney. It is noted that there is no suggestion that a draft of any such document was prepared and read to Ljubica at Radmila’s unit and prior to its execution; and that, insofar as there is any evidence that suggests the document was read to Ljubica (in particular, referring ot the evidence of Mr Danilov), there is no evidence of the kind of questioning of Ljubica that might suggest there was any comprehension by her of what was happening.

10. [524]

    It is submitted that the medical evidence as a whole supports the conclusion that, as at 13 October 2009, Ljubica did not have the mental capacity to understand the nature, implications and far-reaching ramifications of the Macedonian Power of Attorney and the various things it allowed Vase to do (and that she would not have understood them even if they had been spelled out to her by a lawyer in the most “comprehensive and punctilious way” – adopting the terminology in Szozda’s case (at [119]) – and, in any event, that there is no evidence that shows that Ljubica was informed or properly informed of the full meaning and significance of the Macedonian Power of Attorney.

11. [525]

    The same submissions are made in relation to the Contract for a Gift (although of course that document does not purport to be a power of attorney and in any event I have found it not to be authentic).

12. [526]

    Thus it is submitted that both documents, even if found to be genuine, are vitiated by incapacity – and therefore each is void and of no effect and not capable of giving rise to any representation, as alleged or at all.

13. [527]

    For Vase it is submitted that the relevant documents “are not contracts in the sense that there was no commercial bargain”; that “on one interpretation” the Contract for a Gift was intended to take immediate effect; and that otherwise the documents “appear to have been made with testamentary capacity in the sense that they dispose of the deceased’s assets and with a consciousness of disentitling the defendant personally” (referring in particular to the reference in the Contract for a Gift to this being “...because of what she [Lidija] did to me”).

14. [528]

    Vase submits that there is not sufficient evidence to introduce a doubt regarding capacity at the relevant time, referring to the decision in d’Apice v Gutkovich (No. 2) [2010] NSWSC 1333, where there was a finding of testamentary capacity notwithstanding that the 93-year-old testatrix had suffered from dementia for five years and was, at the time of making her will, subject to Guardianship Tribunal orders.

15. [529]

    Insofar as Lidija points to the hospital records in March 2010 in which reference is made to dementia (see CB 2/851; CB 2/853), Vase notes that the psychiatric notes or reports are not before the Court and that the extent of the dementia at that time is not in evidence.

16. [530]

    Vase submits that the relevant date for assessing capacity (and/or undue influence) is 13 (and, in the case of the Contract for a Gift, 14) October 2009 when the relevant document(s) were executed and argues that there is no direct medical evidence concerning those dates. Counsel for Vase notes that there were no questions asked in cross-examination as to Ljubica’s apparent lucidity at that time, nor (he submits) as to any undue influence or pressure.

17. [531]

    Pausing there, it is not apparent to me what use would be made of cross-examination of Vase or Mr Kurtovic on the topic of capacity, Vase having a clear interest in maintaining a position to suit his case and Mr Kurtovic having no medical qualifications and a dogmatic view as to Ljubica’s treatment in Zagreb. As for Mr Danilov, he was not in a position likely to be able usefully to give evidence of Ljubica’s mental state as at 13 October 2009, having no benchmark against which to measure it.

18. [532]

    I do not accept that there was no cross-examination as to the topic of undue influence or pressure – there having been cross-examination of various of the witnesses (in particular, Vase, Mr Kurtovic and Mr Danilov) as to the circumstances in which Lidija was placed at the time (living with Radmila and others in an apartment at the top floor of the building with no lift, making it impossible for her to leave the apartment without assistance; being dependent on Radmila and Vase for her care; and not being able – at least unless she asked to do so – to speak privately with Mr Dabeski), from which an inference of undue influence or pressure might readily be drawn.

19. [533]

    The issue as to capacity strictly speaking only arises in relation to the Macedonian Power of Attorney (since I have concluded that the Contract for a Gift is not authentic). However, I will address the issue of capacity in relation to both documents.

20. [534]

    It is well-known that whether there is capacity must be measured by reference to the kind of document or transaction which is in question.

21. [535]

    As to the Macedonian Power of Attorney, accepting that this on its face does not purport to be irrevocable or enduring, the observations by Barrett J in Szozda as to the general nature of powers of attorney are nevertheless instructive. There, his Honour said (at [34]):

22. [536]

    Relevantly, in the present case, the question is whether it has been established that Ljubica did not have the capacity to understand that by this document she was delegating to Vase the ability to do what he wanted with the proceeds of sale (if it be sold) of the Granville property and, in particular, to deal with them as if that money was his own and without any liability to account to her for the money or to use it in any way for her benefit.

23. [537]

    Ljubica may well have wanted to revoke the power of attorney granted in favour of Lidija and to prevent Lidija from moving to sell the Granville property, and she may well, as Mr Danilov says she expressed to him – though not in Vase’s presence – have wanted to leave everything to Vase but did she have the capacity to understand that the Macedonian Power of Attorney would empower Vase to treat the proceeds of sale of that property as his own (and to the exclusion of herself) if the property was sold during her lifetime?

24. [538]

    In relation to the Contract for a Gift, had the question arisen, the question would be whether Ljubica had the capacity to understand that she was either agreeing to give or giving the whole of her interest in the Granville property to Vase (during her lifetime) and thus would be left with no assets?

25. [539]

    I have real doubt as to Ljubica’s capacity to understand those documents (even had they been properly explained to her at the time, which is by no means clear). There were medical reports of dementia symptoms being observed in Ljubica in June/July 2009; Ljubica was by all accounts very unwell when she arrived in Skopje and the account given by Lidija of communications with Ljubica in which Ljubica accused her of cutting off her leg (which Lidijia found very upsetting and irrational) all suggest that there was some form of cognitive impairment on Ljubica’s part during at least June/July 2009 - October 2009.

26. [540]

    However, I cannot draw inferences as to capacity from the circumstances in which the documents were presented to Ljubica; nor from the fact that Ljubica was not given independent advice about the documents. Nor can I draw an inference from the fact that a Guardianship Tribunal order was made a year later. To do so would be to reason in reverse. When assessing the actual medical and contemporaneous evidence available of Ljubica’s condition, I am not satisfied to the requisite standard of the extent of impairment at the relevant time (bearing in mind that it may have fluctuated from time to time) so as to permit a conclusion that Ljubica did not have capacity to execute the Macedonian Power of Attorney (or, had it been authentic, the Contract for a Gift) as at October 2009.

27. [541]

    Therefore I cannot make any findings of incapacity.

Undue influence

1. [542]

   Lidija’s defence raises both presumed undue influence and actual undue influence in relation to both the Macedonian Power of Attorney and the Contract for a Gift.

2. [543]

   Lidija asserts that both documents (assuming them to be found to be authentic) were procured in circumstances where there is presumed undue influence and argues that in the circumstances of this case the presumption has not been rebutted.

3. [544]

   It is submitted that in this case, the presence and role of Radmila and Vase (Ljubica’s daughter and grandchild, respectively) give rise to a relationship where there was a presumption of influence. It is submitted that they had the role of ascendancy and trust and that Ljubica was totally reliant upon them (see Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41).

4. [545]

   Reference is made to the principles set out by Powell J in Winter v Crichton (1991) 23 NSWLR 116 at 121, his Honour there contrasting the position between inter vivos transactions (where undue influence may be presumed; and will be established where there is an unconscionable use of a position of influence over the donor to obtain an advantage for the donee) and wills (where, if undue influence is alleged, the burden lies on the party alleging it to prove actual undue influence, which cannot be presumed; and where the influence necessary to be shown must amount to force or coercion destroying free agency):

5. [546]

   Here, Lidija relies on the following matters for the submission that there is a rebuttable presumption that Vase (and Radmila) had undue influence over Ljubica: first, the motive and manner of Ljubica’s removal from the aged care facility; second, the lack of independent legal advice and the confinement of Ljubica in Radmila’s apartment in Skopje; third, Ljubica’s total reliance on Vase and Radmila; and, fourth, the lack of any consideration for the alleged gift. It is submitted that the presumption has not been rebutted.

6. [547]

   As to the allegation of actual undue influence, Lidija accepts that what must be shown is actual coercion. However, Lidija points to the extract in Winter v Crichton by Powell J (at 121-122) of the following observations by Sir James Hannen P in Wingrove v Wingrove (1885) LR 11 PD 81 (at 82-83):

7. [548]

   It is submitted in the present case that the requirements for coercion (short of actual violence) have been met, referring to the matters set out above, in addition to the following: that Vase and Radmila were in a position to exercise actual influence; that the circumstances of Ljubica’s removal from Zagreb left her in a position of total reliance on Vase and Radmila for her every need; that Mr Kurtovic was a person with a known history of violence and Ljubica had refused earlier to sign any documents on the two occasions Mr Kurtovic went with Radmila to see Ljubica in Zagreb; and that Ljubica was immobile, physically weak and feeble. It is submitted that “the mere constant presence of Vase, Radmilla [sic] and Mr Kurtovic and her reliance on them was sufficient to bring about the desired result”.

8. [549]

   Asprey JA adverted to the principles of presumed undue influence in Whereat v Duff [1972] 2 NSWLR 147 (on appeal to the High Court, the High Court concluded that the Court of Appeal was correct to dismiss the appeal, but gave different reasons: Whereat v Duff (1973) 1 ALR 363; 47 ALJR 540). Asprey JA said ([1972] 2 NSWLR at 167):

9. [550]

   In the present case, I consider that the relationship of mother/child and grandmother/grandchild, coupled with the circumstances in which Ljubica was totally reliant on Radmila and Vase for her needs after she left (or, since there is no dispute that she was not mobile at the time, was removed from) the aged care facility in Zagreb and taken to Radmila’s unit in Skopje, are such as to have raised a rebuttable presumption that Vase was in a position of undue influence vis-à-vis his grandmother. It thus falls for him to rebut that presumption. I have concluded that he has failed to do so.

10. [551]

    Relevantly, whatever the extent of any diagnosed symptoms of dementia on the part of Ljubica as at 13-14 October 2009, there is no dispute but that she was an elderly woman, she was distressed at the amputation of her leg in Zagreb, she was sufficiently unwell on arrival in Skopje to have been taken immediately to hospital there (and remained there for about two weeks), and she had no opportunity to obtain legal advice otherwise than in the company of the very person who was to benefit from the proposed transaction (and who had not only facilitated the engagement of the lawyer who drafted the documents but who had conferred in advance with that lawyer in relation thereto).

11. [552]

    I would be very surprised (and indeed disappointed in the legal profession) if legal practitioners in this State considered that the provision of any advice to Ljubica in those circumstances could properly be characterised as independent legal advice (in the sense of legal advice independent of the potential, if not actual, influence of the party to benefit from the transaction – i.e., Vase). I have great difficulty seeing how Mr Dabeski could properly have satisfied himself that whatever instructions he had been given by Vase (at the private meeting at his home) or whatever instructions were taken from Ljubica (in the presence of Radmila, Vase and others, in Radmila’s unit) represented instructions freely and voluntarily given and with a proper understanding of what was involved in the transaction (including the legal consequences thereof). (In contrast, it appears from the correspondence sent to Vase by his own lawyer, Ms Muscolini (Exhibit 12), that the lawyer who drafted the February 2009 documents took steps to satisfy himself as to Ljubica’s capacity at the time she gave instructions in relation to those documents – and Lidija’s evidence is that Mr Vassili required her to leave the room while he took instructions from Ljubica – T 319.1-5.)

12. [553]

    The circumstances in which the documentation (at least of the Macedonian Power of Attorney) was apparently prepared by Mr Dabeski and then executed by Ljubica before the public notary (with, in relation to the latter, apparently nothing more than the reading out of the document and a question as to whether Ljubica agreed with the document) are only too reminiscent of the not uncommon spectacle of elderly people being ferried from lawyer to lawyer by one or more opposing family members in order to execute documents favouring some members of the family over others.

13. [554]

    I am not satisfied on the balance of probabilities that the presumption of undue influence has been rebutted by Vase in relation to either of the documents (though, as already noted, I have found the Contract for a Gift was not a genuine or authentic document so the issue does not strictly arise in relation thereto).

14. [555]

    As to the claim of actual undue influence, while I accept that physical force is not necessary to overbear someone’s will, I am not persuaded on the balance of probabilities that it has been established that the conduct of Vase amounted to actual coercion.

Unconscionable Conduct

1. [556]

   Again, this issue only strictly arises in relation to the Macedonian Power of Attorney given my finding that the Contract for a Gift is not an authentic document. However, I will deal the claims made in relation to both documents.

2. [557]

   Lidija here invokes the principles articulated in Commercial Bank of Australia Ltd v Amadio (1993) 151 CLR 447; [1983] HCA 14: namely that here there was a situation of special disability or disadvantage such that the weaker party (Ljubica)’s ability to judge her own best interests is impaired; that the stronger party (Vase) knew of the special disadvantage; and that the conduct of the stronger party (Vase, though I note that Lidija’s submissions include Radmila in this context) in these circumstances is or has been unconscionable.

3. [558]

   It is submitted for Lidija that the events at the nursing home in Croatia, involving Ljubica, constituted a premeditated scheme by Vase to procure documents to secure for himself the benefit of Ljubica’s estate in Australia.

4. [559]

   In this regard, it is submitted that: there was no objective reason why Vase should have a concern for Ljubica’s welfare in Croatia (his own mother living in Skopje and being able to visit Ljubica if she so chose), and noting the evidence of Manuela that the relationship between Ljubica and Vase was not good; Vase’s actions went far beyond seeking to “rescue” Ljubica (since he took steps to procure documents seeking to ensure that he would benefit from her estate – on Lidija’s case while Ljubica was in the nursing home but in any event when he later arranged for Mr Dabeski to prepare one or more documents in Skopje); and that those actions make sense only if Vase had become aware (as he says he did in September 2009) that Ljubica had given Lidija a power of attorney (and if, as Lidija contends, he had also become aware that Ljubica had made a will favouring Lidija).

5. [560]

   In that regard, Lidija submits that it is more likely that Vase became aware of the power of attorney favouring Lidija before he contacted Mr Kurtovic and asked him to go to Croatia, because on Vase’s own account he only made one visit to the aged care facility (on 2 October 2009, when he removed Ljubica from the facility in the company of Radmila) and this was (on Mr Kurtovic’s evidence) such a short visit that it is hardly likely that the issue of the power of attorney would have come up at that stage or that Vase would have located it on that occasion. Lidija also points to Ms Derkos’ evidence as to two occasions prior to 2 October 2009 on which Mr Kurtovic and Radmila attempted to have Ljubica sign some documents, once in the aged care facility and once at the hospital in Croatia. It is submitted that this conduct only makes sense if it was already known that Ljubica had signed documents that were then being sought to be revoked.

6. [561]

   The matters that Lidija relies on in this context are those to which reference has already been made: that Ljubica was physically weak, immobile, and had difficulties with her eyesight. (One might well add to those matters that she was obviously recovering from the amputation operation and had been in a state of some distress about that; and that she was totally reliant on Vase and Radmila for her care while she was in Radmila’s apartment.) Lidija maintains that those matters (or at least her physical condition) were matters known to Vase. She submits that in those circumstances the conduct of Vase was unconscionable. I agree.

7. [562]

   I consider that Vase’s conduct in those circumstances (in arranging the services of Mr Dabeski; in instructing him, initially in the absence of Ljubica, as to the proposed transaction; in not ensuring that Ljubica had truly independent advice as to the consequences of the proposed transaction; and in bringing about the situation in which Ljubica executed at least the Macedonian Power of Attorney in his favour at a time when she was totally dependent on him and on Radmila for her day to day needs and care) was unconscionable.

8. [563]

   Ljubica was clearly in a position of special disability or disadvantage; Vase must have appreciated this at the time – he was certainly aware of her physical condition and dependence on himself and Radmila; and Vase’s insistence that he simply followed “the grandmother’s” wishes (or orders) is implausible but, even if correct, does not in my opinion remove the unconscionability of his conduct in so doing without affording her the opportunity of independent advice. It is not necessary to go further and attribute some kind of premeditated scheme to Vase (and/or Radmila) as contended for by Lidija (and I make no such finding).

Estoppel, laches and acquiescence defences

1. [564]

   The remaining defences can be dealt with relatively quickly.

2. [565]

   The estoppel defence relates only to the claim based on representations contained in the Contract for a Gift; and is based on the compromise of the family provision claims having constituted an implied representation that Vase had no extant claim on Ljubica’s estate. The first reference to the alleged Contact for a Gift appeared in Vase’s affidavit of 26 July 2016. It is submitted that it can be inferred that had Lidija known of that claim she would not have compromised the family provision proceedings. It is submitted that that inference can be drawn as a reasonable inference on its own and/or from the fact of her defence of these proceedings.

3. [566]

   I accept that Vase’s silence about any alleged gift contract or any claim he might have to the whole of Ljubica’s estate at a time when the parties were negotiating a compromise of his and Radmila’s respective family provision claims would have conveyed to a reasonable person in Lidija’s position that he had no such claim – it surely would not have occurred to Lidija that Vase was “keeping up his sleeve”, so to speak, a claim that (if successful) would effectively trump both Lidija and Radmila’s claims in respect of their mother’s estate by removing all, or substantially all, the assets from the estate. And I accept that an inference should be drawn that, had Vase raised his present claim at that time, it is likely that no settlement of the family provision proceedings would have been reached, at least on a final basis. That seems to me to be the inevitable conclusion since it is difficult to see what point there would be in reaching a binding agreement as to the making of provision for Radmila out of Ljubica’s estate at a time when the parties were on notice of a claim by Vase that might lead to the whole of that estate being found to be held on constructive trust for him (and hence unavailable to satisfy any order for provision in Radmila’s favour).

4. [567]

   As to whether in those circumstances it would be unconscionable for Vase now to assert such a claim, it is relevant to note that the costs incurred by Lidija in the hearing before Kunc J would presumably not have been incurred had Vase’s promissory estoppel claim been raised before the judicial settlement conference (but those costs have already been awarded in Lidija’s favour – on an indemnity basis).

5. [568]

   Moreover, one difficulty with the estoppel defence (as I have already adverted to) is in pinpointing the time at which Vase became aware of the existence of facts that would have given rise to the promissory estoppel claim. As I understand his evidence, while he was aware of the Macedonian Power of Attorney from October 2009, he says he only received the Contract for a Gift document in about June 2016. That said, there is nothing to suggest that Vase would not have pressed his promissory estoppel claim based on the Macedonian Power of Attorney even without the Contract for a Gift document (and, in any event, I have concluded that the Contract for a Gift document was not authentic).

6. [569]

   Had it been necessary to determine this estoppel defence, which in light of my earlier findings it is not, I would have been inclined to the view that even if made out the prejudice suffered by Lidija by reason of the time at which the promissory estoppel claim was brought could adequately be met by indemnity costs orders (secured if necessary over the Granville property had the promissory estoppel claim succeeded) and hence it would not have foreclosed the claim altogether.

7. [570]

   The defences based on laches and acquiescence in my view would be determined in the same way. (I note that the amended defence did not plead any provision of the Limitations Act 1969 (NSW) in response to the plaintiff’s claims. However, in closing submissions, Counsel for Lidija raised the possibility that equity might apply the Limitation Act as a matter relevant to the exercise of discretion in applying the doctrine of laches. As to this, however, it was not suggested that this was a case where equity would act by analogy with the law; and therefore, according to recent commentary, the better view is that equity would not apply the statute and “the only question is whether some other equitable defence is available”: see M Leeming, “‘Not slavishly nor always’ – Equity and Limitation Statutes” in P Davies, S Douglas and J Goudkamp (eds), Defences in Equity (Hart Publishing, 2018), 293, at 308.) Certainly, Vase has on his own evidence known about the Macedonian Power of Attorney since 2009 and he has no explanation for the delay in bringing his promissory estoppel claim (indeed he accepted in the context of the Anshun estoppel/abuse of process defence that he cannot advance a case that it was reasonable for him not to have brought his promissory estoppel claim earlier (see Exhibit 10 - transcript 14 March 2018 at T 6.18-21).

Relief on the Cross-Claim

1. [571]

   In respect of the relief sought in the cross-claim, consequent upon the conclusions I have reached above, I make the following observations.

2. [572]

   First, I see no utility in the declaratory relief sought (prayers 1 and 5(a)) in relation to the revocation of the February 2009 power of attorney in favour of Lidija, in circumstances where that was not an enduring power of attorney and Ljubica is now deceased. Second, the declarations sought in prayers 3 and 5(b) are not appropriate (and unnecessary) where I have found that the Contract for a Gift is not authentic. Third, the relief sought in prayer 4 will not be granted in circumstances where I have not made a finding of incapacity.

3. [573]

   Fourth, as to the relief sought in prayer 5(b), the appropriate declaration in my opinion is that the Macedonian Power of Attorney is of no effect. Although such a declaration might be thought to be unnecessary (it not being an enduring power of attorney and Ljubica now being deceased), given that reliance was placed on the representation allegedly contained in that document I consider that declaratory relief may have some utility.

4. [574]

   I note that in submissions on the cross-claim in relation to the Macedonian Power of Attorney, Lidija did not refer to any cases concerning the grant of equitable relief setting aside a power of attorney (as distinct from a gift or contractual promise) due to undue influence.

5. [575]

   Speaking at the level of general principle, two remarks may be made. First, a power of attorney is “a formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes” (P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (21st ed, 2018, Thomson Reuters), [2-039]). It does not involve the disposition or creation of any interest in property (Urquhart v Lanham [2002] NSWSC 119, [15]) and it generally has not been characterised as establishing a contract between donor and donee (G E Dal Pont, Powers of Attorney (2nd ed, 2015, LexisNexis), [1.16]-[1.18]). In my view, this may be an important point of difference to the established categories, such as gifts or other dispositions of property and contractual promises, where equity will intervene to set aside the transaction for undue influence. (For example, in Johnson v Buttress, Dixon J (as his Honour then was) referred to “the equitable jurisdiction to set aside an alienation of property”.)

6. [576]

   Further, a power of attorney is ordinarily presumed to be revocable by the donor (see Walsh v Whitcomb (1797) 2 Esp 565; 170 ER 456; Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148 at 162; [1910] HCA 39, both referred to in Powers of Attorney at [11.10]). In my view, and noting that a power of attorney is a common law power (P W Young, C Croft and M L Smith, On Equity (Lawbook Co, 2009), [8.950]), the revocable nature of a power of attorney would mean that it would be futile for equity to intervene to set aside the power of attorney at the instance of the donor for undue influence (as distinct from declaring it void for lack of capacity). For those reasons, I do not see that a power of attorney would necessarily be classed together with other transactions, such as dispositions of property and contracts, which clearly may be set aside on the basis of undue influence.

7. [577]

   Secondly, there are dicta suggesting that treating a power of attorney as “voidable” at the instigation of the donor could give rise to conceptual and practical difficulties. In Gibbons v Wright (1953) 91 CLR 423; [1954] HCA 17 (which was a case about lack of capacity, not about undue influence, and was not a case about a power of attorney), Dixon CJ, Kitto and Taylor JJ (in obiter) distinguished a deed conveying an interest in land, on the one hand, from a power of attorney, on the other, saying (at 444-445):

8. [578]

   I have identified only one case in Australia where a power of attorney was treated as voidable, at the instigation of the donor, for undue influence: this being the decision of Foster J in Broadlands International Finance Limited v Sly (Supreme Court (NSW), Foster J, 24 April 1987, unrep), referred to by Dal Pont in Powers of Attorney (at [3.43]). The power of attorney there was executed by the defendant in favour of her husband, in support of a mortgage transaction instigated by him to finance a business he owned. Foster J held that the husband had made use of his superior knowledge of commercial transactions, and position of influence over his wife, to convince her to execute the mortgage and the power of attorney (at 46):

9. [579]

   Finally, I note that, at general law (being the law of New South Wales which for present purposes I am treating as identical to the applicable law), it is clear that the death of the principal has the effect that the power of attorney is cancelled: this being “an application of basic agency law, which dictates that a principal’s death brings an agency to an end” (Powers of Attorney, [11.34]); see Re Williams [1917] 1 Ch 1 at 7 (Lord Cozens-Hardy MR) (“A power of attorney … becomes inoperative on the death of the person conferring it, and the recipient cannot claim to exercise the power after that person’s death”). As such, the Macedonian Power of Attorney could confer no authority on Vase after the deceased’s death.

10. [580]

    However, Vase’s pleaded case here included that the Macedonian Power of Attorney contained representations which were capable of conferring substantive rights on him. For that reason, to ensure that no claim to substantive rights can in future be advanced under that document, I consider it appropriate to declare that the document entitled the Macedonian Power of Attorney was procured by undue influence (the presumption of undue influence not having been rebutted). I emphasise that this declaration is made on the basis that, to the extent that that document is capable of conferring substantive rights, it is now to be treated as having been avoided at the instance of the deceased, as having been procured by undue influence; noting, however, to the extent that the document merely conferred authority, it would no longer has any effect under general law principles due to the death of the principal.

11. [581]

    Finally, although the relief sought contemplates declarations as to Radmila’s conduct, and she did not contest that relief, in the circumstances it is not necessary to say more than that she is clearly implicated in the unconscionable conduct and undue influence to almost the same, if not the same, extent as Vase, but (notwithstanding that she has filed a submitting appearance) I do not propose to make orders in relation to her position in her absence and without the benefit of submissions made on her behalf; nor is it necessary to do so. Otherwise I will grant the relief in the cross-claim in relation to the Macedonian Power of Attorney.

Conclusion

1. [582]

   For the above reasons, I make the following orders:

   1. (1)

      Plaintiff’s further amended statement of claim be dismissed with costs.

   2. (2)

      Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect.

   3. (3)

      Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.

2. [583]

   I will list the matter for directions if there is to be any application for special costs orders in respect of all or any part of the proceedings.