Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard

1. [1]

   The proceedings concern an application by the Plaintiff in Amended Summons dated 4 November 2016, seeking a declaration that the Plaintiff is the beneficial owner of the property at 31 Prestons Lane, Tyagarah NSW 2481, with folio identifier 2/631878 (Amended Summons [13]). The Plaintiff also sought a declaration that the Defendant holds the property on trust for the Plaintiff (Amended Summons [14]).

2. [2]

   Further or in the alternative, the Plaintiff sought a declaration that it would be unconscionable for the Defendant to deny that the Plaintiff is the sole beneficial owner of the Property (Amended Summons [15]). The Plaintiff’s claim is one of unconscionability and undue influence, in that the relevant property transactions are such that they ought to be set aside as between the Plaintiff and the Defendant.

3. [3]

   The Plaintiff placed a caveat on the Tyagarah property on 22 December 2015 (Points of Claim [23]), with the Defendant serving a Notice to Caveator of Proposed Lapsing of Caveat on 14 September 2016 (Points of Claim [24]). The caveat was extended on 30 September 2016 until further order (Points of Claim [25]).

Background facts

1. [4]

   Where I refer in this judgment to persons by their surnames or an acronym, I intend no disrespect.

2. [5]

   Gillian Fisher-Pollard (the Plaintiff), was born on 13 June 1932 and married John Fisher-Pollard (Mr Fisher-Pollard) on 1 September 1956.

3. [6]

   Subsequent to this marriage, Guy Fisher-Pollard (GFP) was born on 14 March 1959, Miles Fisher-Pollard (MFP) was born on 5 February 1966 and Piers Fisher-Pollard (the Defendant) was born on 7 May 1967. These are the couple’s three sons.

4. [7]

   The Fisher-Pollard family moved to and lived in South Africa from 1973 to 1980. From 1980 to 1991 the Plaintiff and Mr Fisher-Pollard lived in 79 Kuringai Ave Turramurra NSW 2074.

5. [8]

   On 26 October 1987, the Defendant was convicted of mid-range PCA leading to a fine and disqualification from driving (TB 1162-72).

6. [9]

   On 20 June 1988, John Fisher-Pollard made a will giving his estate to the Plaintiff or if she died dividing the estate equally between the couple’s three sons (TB 669).

7. [10]

   On 20 June 1988, the Defendant was convicted of mid-range PCA leading to a fine and disqualification from driving (TB 1168).

8. [11]

   In 1991, Mr Fisher-Pollard and the Plaintiff purchased the property at 57 Allenby Road Tuross Head NSW 2537 as joint tenants (TB 670, 1017) (Tuross Head Property).

9. [12]

   On 25 June 1993, Mr Fisher-Pollard and the Plaintiff purchased the apartment at 2/27 York Road Queens Park as joint tenants (TB 671). The Defendant lived in this property occasionally over the succeeding years (York Road Property).

10. [13]

    In December 1993, GFP moved to Canada (Guy Fisher-Pollard Affidavit [9]).

11. [14]

    In the years between 1999 and 2001, the Defendant was convicted of drug trafficking in Germany and sentenced to two years in gaol. He served 18 months before being released. As a result of that conviction, he was prohibited from travel in Europe, the United States and Canada (Miles Fisher-Pollard Affidavit [44]).

12. [15]

    The Plaintiff became a patient of Hugh Humphrys at Moruya Medical Centre in 2001 (Dr Hugh Humphrys Affidavit [8]). On 9 November 2005, Dr Humphrys noted in the Plaintiff’s case history (TB 1066):

13. [16]

    Before 2008, Faye Roxburgh and her partner Bill Roxburgh observed the Plaintiff’s increasing forgetfulness (Faye Roxburgh Affidavit [15]).

14. [17]

    From 2008 to 2009, Jean Calcutt observed the Plaintiff losing her memory (Jean Calcutt Affidavit [16]-[17]).

15. [18]

    On 12 August 2009, Dr Humphrys received a letter from John Fisher-Pollard raising concern about his wife’s increasing cognitive deterioration. Dr Humphrys noted (TB 1071):

16. [19]

    On 25 August 2009, Dr Humphrys carried out an MMSE screening test which scored 28/30. He noted (TB 1072):

17. [20]

    On 28 October 2009, the Defendant was convicted of possessing a prohibited drug, resulting in a bond and an order that the drug be destroyed (TB 1167-70).

18. [21]

    On 17 February 2010, Dr Humphrys noted with respect to the Plaintiff (TB 1073):

19. [22]

    On 23 April 2010, Dr Humphrys made further observation regarding the Plaintiff (Dr Hugh Humphrys Affidavit [26]):

20. [23]

    In July 2010, John Fisher-Pollard had a conversation with Jean Calcutt about arranging care for the Plaintiff after his death (Jean Calcutt Affidavit [25]-[26]).

21. [24]

    In July 2010, GFP travelled to Australia to stay with his parents Mr Fisher-Pollard and the Plaintiff, whilst John had surgery to remove a cancerous tumour on his leg (Guy Fisher-Pollard Affidavit [19]).

22. [25]

    On 29 November 2010, Dr Humphrys made a note relating to the Plaintiff’s declining cognition. Inter alia, he wrote (TB 724):

23. [26]

    On 12 December 2010, the Defendant was convicted of low-range PCA, leading to disqualification from driving for six months from 7 February 2011 to 7 August 2011 (TB 1164-65).

24. [27]

    From 6 August 2011 to 8 August 2011, the Plaintiff was admitted to Canberra Hospital. The Discharge Summary noted her presenting history as (TB 732, 1050-3):

25. [28]

    On 12 August 2011, the Plaintiff revoked her husband Mr Fisher-Pollard’s appointment as enduring power of attorney and appointed the Defendant as enduing power of attorney (Exhibit P12).

26. [29]

    On 15 August 2011, the Defendant called GFP to advise him their father John was in hospital. From 17 August 2011 to 11 September 2011, GFP visited Australia to visit his parents (Guy Fisher-Pollard Affidavit [19]).

27. [30]

    On 17 August 2011, MFP received a telephone call from the Defendant advising him their father John was terminally ill. MFP flew to Sydney with Irena Majcen on 18 August 2011, before returning on 28 August 2011 (Miles Fisher-Pollard Affidavit [12]; Irena Majcen Affidavit [5]).

28. [31]

    On 23 August 2011, the Plaintiff handwrote a document outlining the financial affairs of her husband John. This was provided to the Court (Exhibit D2; P4). It included details of John’s coin collection and annuities.

29. [32]

    On 30 August 2011, John Fisher-Pollard died (TB 783).

30. [33]

    On 9 September 2011, the first recorded contact between the Defendant and Mr Mawer occurred regarding the purchase of a property in Grafton Street, Bondi Junction (Grafton Street Property) (TB 734-735). On that day, Mr Mawer opened a conveyancing file for the purchase of the Grafton Street Property, as well as the sale of the York Road Property. In this file the Plaintiff was listed as the vendor and the Defendant as an other party (Exhibit P9).

31. [34]

    On 10 September 2011, an agency agreement for the sale of the York Road Property was issued by Richardson & Wrench Bondi Junction. The Plaintiff was listed as the principal for the sale (TB 797-800).

32. [35]

    On 11 September 2011, GFP left Australia (Guy Fisher-Pollard Affidavit [19]).

33. [36]

    On 12 September 2011, a contract for the purchase of the Grafton Street Property was signed and exchanged with the Defendant as the purchaser for $930,000.00 (TB 743). On that day, Mr Mawer provided the Defendant with a costs agreement concerning this sale (TB 745-6). A deposit on the Grafton Street Property of $46,500.00 was paid from a cheque drawn on the Plaintiff’s bank account (TB 744).

34. [37]

    On 17 September 2011, the Defendant emailed GFP (TB 747-51):

35. [38]

    On 22 September 2011, the Defendant instructed Mr Mawer to organise a contract for sale of the Tuross Head Property (TB 755) and he opened a conveyancing file for the sale of this property. In this file the Plaintiff was listed as the vendor and the Defendant as an other party (Exhibit P9).

36. [39]

    On 23 September 2011, L J Hooker Tuross Head issued a sales inspection report and exclusive agency agreement for the sale of the Tuross Head Property with the Plaintiff listed as the principal alone (TB 756). On 26 September 2011, Mr Mawer made the following file note (TB 757):

37. [40]

    With respect to his dealings with the Defendant and the Plaintiff, Mr Mawer noted in his affidavit of 6 July 2017:

38. [41]

    On 27 September 2011, a home loan account was opened by the Plaintiff and the Defendant jointly with St George Bank (TB 1478-9).

39. [42]

    On 30 September 2011, two withdrawals were made from the Plaintiff’s bank accounts of $32,208.00 and $5,410.00 respectively for related costs of the purchase of the Grafton Street Property (TB 1478-9).

40. [43]

    On 30 September 2011, the Plaintiff signed a Notice of Death in respect of her husband concerning both the Tuross Head Property and York Road Property originally purchased by the couple (TB 772).

41. [44]

    On 5 October 2011, the Defendant sent an email to his brother MFP. This email included the statements (TB 775-8):

42. [45]

    On 13 October 2011, Mr Mawer undertook a Notice of Assessment for purchase of the Grafton Street Property. In this assessment the Defendant was listed as the party to the transaction and the purchaser (Exhibit P9).

43. [46]

    On 14 October 2011, Mr Mawer provided the Notice of Death of John Fisher-Pollard to the loan manager of St George Bank Bondi Junction (TB 780). On 17 October 2011, Mr Mawer provided a contract for sale of the Tuross Head Property to L J Hooker Tuross Head.

44. [47]

    On 20 October 2011, various payments including stamp duty were paid for purchase of the Grafton Street Property (TB 773).

45. [48]

    On that same day, the Plaintiff made a will dividing her estate equally between her three sons GFP, MFP and the Defendant. This will appointed the Defendant as sole executor and trustee of her will and estate, and provided the three sons her estate as tenants in common in equal shares (TB 1139):

46. [49]

    On 24 October 2011, the Plaintiff entered into a mortgage over the Tuross Head Property and York Road Property as security for a loan with St George Bank of $930,000.00. The Plaintiff was listed as the sole mortgagor (TB 790, 1478-9). The loan was used to pay the balance of the purchase price, $930,000.00 for the Grafton Street Property (TB 791).

47. [50]

    On 13 November 2011, the Defendant sent MFP a text message recorded on his email. This message included the statement (Exhibit P5):

48. [51]

    On 19 November 2011, a sales inspection report and exclusive agency agreement was issued by Richardson & Wrench Bondi Junction for the sale of the York Road Property with the Plaintiff listed as the sole principal (TB 797-800). An amount of $4,637.00 was paid from the Plaintiff’s Retirement Access Plus account to fund the marketing of this sale (Plaintiff’s Retirement Access Plus Account Statement; TB 801-2).

49. [52]

    In December 2011, MFP and Irena Majcen visited the Plaintiff for Christmas celebrations (Miles Fisher-Pollard Affidavit [24]-[29]; Irena Majcen Affidavit [14]-[35]).

50. [53]

    On 6 December 2011, L J Hooker Tuross Head sent sales advice to Mr Mawer informing him that a sale had been successfully negotiated on the Tuross Head property. In this advice the Plaintiff was listed as Mr Mawer’s client (TB 808, 1028).

51. [54]

    On 8 December 2011, the Plaintiff visited Dr Elizabeth Harper at War Memorial Hospital. Dr Harper conducted an MMSE screen test with a result of 30/30 (although Dr Bhanji contends the true total should be 26/30, TB 158). Dr Harper noted (TB 1256-8):

52. [55]

    On 14 December 2011, contracts were exchanged for the sale of the York Road Property, with the Plaintiff listed as the vendor (TB 815).

53. [56]

    Apparently on 20 December 2011, the Plaintiff drafted a letter to her son GFP (although seemingly she never sent it). She initialled any changes she made to the document and wrote ‘Date!’ above the recorded date of 20 December 2011. She recorded, amongst other observations, the following (Exhibit D3):

54. [57]

    On 22 December 2011, the contract for the sale of the Tuross Head Property was exchanged, with the Plaintiff listed as the sole vendor (TB820-1).

55. [58]

    On 7 February 2012, a simultaneous settlement of the Tuross Head Property and York Road Property was effected with net proceeds of sale deposited into a joint loan account to discharge the mortgage over the Grafton Street Property. The York Road Property was sold for $681,000.00 (TB 815) and the Tuross Head Property was sold for $635,000.00 (TB 820). The Defendant was listed as the purchaser of the Grafton Street Property for $930,000.00 (TB 743; Exhibit P9).

56. [59]

    On 19 April 2012, a dementia nurse Jai Nandra made a home visit to the Plaintiff, who performed an MMSE in which the Plaintiff scored 28/30 (TB 1260). No record of the actual MMSE test is available. Concerning a previous visit to the Plaintiff’s home, Ms Nandra stated (TB 1259-60):

57. [60]

    On 1 May 2012, the Plaintiff was assessed at a Mental Health Triage due to a referral from a community nurse. This triage report noted (TB 1230):

58. [61]

    From 18 May 2012 to 20 May 2012, her friends Faye Roxburgh and Jean Calcutt visited the Plaintiff in the Grafton Street Property (Faye Roxburgh Affidavit [29]-[34]; Jean Calcutt Affidavit [36]).

59. [62]

    On or about 8 June 2012, the Plaintiff visited Dr Ros Mulholland. She scored 11/26 for memory recall in the ACE-R test and 27/30 on the MMSE test (incorrectly scored as 30/30) (TB 1212-25). Dr Mulholland was referred to the Plaintiff by Dr Daniel Hameiri (TB 851-2) who had also consulted Dr Elizabeth Harper (TB 809-10). Dr Mulholland observed in her notes for Mental Health Assessment, inter alia, as follows:

60. [63]

    At TB 1219:

61. [64]

    At TB 1220:

62. [65]

    At TB 1221:

63. [66]

    At TB 1224:

64. [67]

    At TB 1225:

65. [68]

    On 27 June 2012, the Plaintiff sent an email to GFP and his wife Nancy regarding her 80th birthday (TB 516-17):

66. [69]

    GFP replied to this email noting that he had made contact with the Plaintiff three times and that he was sorry she did not recall the phone calls (TB 515-17).

67. [70]

    On 29 June 2012, there was a withdrawal of $11,000.00 from the Plaintiff’s account into an unknown account (Exhibit P13).

68. [71]

    In July 2012, MFP visited the Plaintiff in Australia (Miles Fisher-Pollard Affidavit [35]).

69. [72]

    On 8 July 2012, the Plaintiff emailed GFP and Nancy again referring to the Grafton Street Property (TB 518):

70. [73]

    On 28 December 2012, the Plaintiff emailed GFP and Nancy again (TB 519-20):

71. [74]

    On 30 December 2012, the Plaintiff emailed Elizabeth Burcar (TB 521-2):

72. [75]

    On 31 December 2012, the Plaintiff emailed Elizabeth Burcar regarding the Plaintiff’s purchase of the Grafton Street Property (TB 523):

73. [76]

    In 2013, Jean Calcutt visited the Plaintiff in Bondi Junction (Jean Calcutt Affidavit [40]) and the two travelled together to Perth for 10 days. The Plaintiff got lost at the airport and missed her flight home (Jean Calcutt Affidavit [44]-[46]).

74. [77]

    On 25 February 2013, the Plaintiff emailed Nancy Pollard (the wife of GFP) regarding her move from Tuross Head to Bondi Junction (TB 524):

75. [78]

    On 12 March 2013, the Plaintiff emailed GFP (TB 525):

76. [79]

    On 15 March 2013, Mr Anstee (then a barrister) made a file note recording text messages with the Defendant, which appeared to record as follows (P10):

77. [80]

    On 16 March 2013, the Plaintiff emailed Jean Calcutt (TB 526-7):

78. [81]

    On 18 March 2013, the Plaintiff emailed Faye Roxburgh (TB 528):

79. [82]

    On 18 March 2013, the Plaintiff emailed Faye Roxburgh again (TB 529):

80. [83]

    On 31 March 2013, the Plaintiff emailed GFP and Nancy (TB 531-4):

81. [84]

    On 1 April 2013, the Plaintiff emailed GFP and Nancy (TB 535):

82. [85]

    On 15 April 2013 the Plaintiff emailed GFP and Nancy, reiterating her sentiments that she should never have left Tuross Heads, stating ‘I pay for everything and go to the shops, taking my shopping cart with me, come back and pack it all away, sit down to a cuppa, then try to last the rest of the day without cutting my own throat!’ (TB 539-40).

83. [86]

    On 19 April 2013, the Plaintiff emailed GFP and Nancy (TB 541-2):

84. [87]

    On 24 April 2013, the Plaintiff emailed GFP and Nancy (TB 476): ‘Piers WOULD be happy … as long as I continue to pay for him and the flat!’

85. [88]

    On 10 May 2013, the Plaintiff signed a statutory declaration prepared by Mr Anstee witnessed by Mr Christie (TB 1151). This declaration included such statements as:

86. [89]

    In his file note for this matter, there is a record of Dr Hameiri dated 29 April 2013, which notes: ‘[t]his is to verify that Mrs Gillian Fisher-Pollard suffers from depression due to bereavement. As well she suffers from mild cognitive impairment consistent with her age but shows no evidence of Alzheimer’s disease or dementia’ (TB 1152-3).

87. [90]

    From 15 July 2013 to 21 July 2013, the Plaintiff then stayed with Jean Calcutt at Tuross Head (Jean Calcutt Affidavit [47]; Faye Roxburgh Affidavit [35]-[36]). Jean Calcutt and the Plaintiff then went on a cruise together (Jean Calcutt Affidavit [49]).

88. [91]

    On 24 October 2013, the Defendant published a book largely of photographs entitled Dog Tails (Exhibit P2).

89. [92]

    On 20 February 2014, the Plaintiff emailed Peter Lester regarding her anticipated move from Sydney to Byron Bay (TB 543-5):

90. [93]

    On 25 February 2014, Sarah Booker (of Richardson & Wrench Bondi Junction) emailed the Plaintiff and the Defendant regarding sale of the Grafton Street Property (TB 546-8). The Plaintiff replied: ‘Dear Sarah … I would be VERY grateful if you would please address ALL CORRESPONDENCE regarding this property to me and I will forward Piers whatever I feel is necessary’.

91. [94]

    On 2 March 2014, the Plaintiff emailed Jean Calcutt (TB 549-51):

92. [95]

    On 5 March 2014, GFP advised MFP that the Plaintiff was planning on moving to Tyagarah. He expressed the concern for the potential that she would have few friends in the area (TB 927-8).

93. [96]

    On 23 March 2014, the Plaintiff emailed Jean Calcutt:

94. [97]

    On 1 April 2014, L J Hooker provided Mr Mawer with sale advice for the Tyagarah Property at 31 Prestons Lane (Tyagarah Property), with a contract price of $1,075,000.00 and the Defendant listed as the purchaser (TB 1109). On 23 April 2014, the Plaintiff paid from her account an amount of $53,750.00 as 5% deposit of the purchase price of the Tyagarah Property. Exchange of contracts was achieved on 30 April 2014 for purchase of the property, with the Defendant listed as the sole purchaser (TB 935; 947).

95. [98]

    On 29 May 2014, the Plaintiff paid $550.00 to Mr Mawer (TB 1370-82). She again paid Mr Mawer $895.00 on 2 July 2014 and $1,336.00 on 4 July 2014 (TB 1370-82).

96. [99]

    In July 2014, MFP visited his mother at Tyagarah (Miles Fisher-Pollard Affidavit [38]-[40]).

97. [100]

    On 3 July 2014, sale of the Grafton Street Property was settled with a sale price of $1,260,000.00. The amount ultimately received on settlement for the sale was $1,197,806.86, with $1,976,626.46 deposited into the Defendant’s account (TB 942, 1482).

98. [101]

    On 8 July 2014, purchase of the Tyagarah Property was settled with a purchase price of $1,075,000 and the Defendant listed as the sole purchaser (TB 935, 976).

99. [102]

    On 2 November 2014, MFP carried out a title search on the Tyagarah Property, ascertaining that the property was purchased in the Defendant’s name (TB 976-9). He then wrote to his brother GFP:

100. [103]

     On 28 November 2014, the Plaintiff signed a living testament (TB 980-3):

101. [104]

     In this living testament, the Plaintiff stated it was her intention to have the properties remain hers until her death, and eventually be divided equally between her three sons upon her death.

102. [105]

     On 10 January 2015, the Defendant emailed MFP and GFP (Exhibit P7):

103. [106]

     On 23 January 2015, the Defendant was charged with common assault and commit an act of cruelty upon an animal. He was placed on an 18 month good behaviour bond (TB 1169).

104. [107]

     On 4 February 2015, the Defendant received $15,000.00 from the Plaintiff upon closure of her term deposit account (Exhibit P13).

105. [108]

     At Easter of 2015, the Plaintiff visited GFP and his family in Canada, where she stayed due to concerns that she was in poor physical condition and was uncared for (Miles Fisher-Pollard Affidavit [46]).

106. [109]

     On 28 June 2015, the Defendant was charged with driving with mid-range PCA, where he was ordered to take part in an alcohol interlock program for 20 months and disqualified from driving (TB 1168).

107. [110]

     On 7 July 2015, the Defendant emailed Kerry Powell regarding Nancy Pollard’s access to the Plaintiff’s bank accounts (Exhibit P6):

108. [111]

     On 4 September 2015, the Plaintiff wrote a letter setting out her wishes (TB 1009-10):

109. [112]

     On 23 October 2015, the Defendant emailed MFP (Exhibit P3):

110. [113]

     On 26 October 2015, the Defendant was charged with using offensive language in or near a public place or school and was fined (TB 1171).

111. [114]

     On 18 December 2015, the Plaintiff lodged a caveat (Caveat AK78469) over the Tyagarah Property. On 15 September 2016, a section 74N notice pursuant to the Real Property Act 1900 (NSW) was served on Schweizer Kobras by Heydons Lawyers. On 20 September 2016, the Plaintiff swore an affidavit (TB 60-5).

112. [115]

     On 28 December 2015, the Plaintiff appointed severally MFP and GFP under an enduring power of attorney (TB 1011-15).

Legal principles

1. [116]

   In Blomley v Ryan (1956) 99 CLR 362 at 428-9; [1956] HCA 81, Kitto J observed (citations omitted):

2. [117]

   At 429, His Honour also said (citations omitted):

3. [118]

   In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474-5; [1983] HCA 14 (Amadio), Deane J (with Wilson J agreeing) said (citations omitted):

4. [119]

   The distinction between unconscionable conduct and undue influence reinforced by Deane J in Amadio was also affirmed by Brennan J in Louth v Diprose (1992) 175 CLR 621 at 626-7; [1992] HCA 61 (Louth v Diprose) (citations omitted):

5. [120]

   In Louth v Diprose, Brennan J also examined the question of finding unconscionable conduct within the context of the giving of a gift from a donor to a donee, at 630-1 (citations omitted):

6. [121]

   In McCulloch v Fern [2001] NSWSC 406, Palmer J observed at [69]:

7. [122]

   The New South Wales Court of Appeal in Australia and New Zealand Banking Group Limited v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 has observed at paragraphs [45]-[46]:

8. [123]

   See also the judgment of Latham CJ in Johnson v Buttress (1936) 56 CLR 113 at 120; [1936] HCA 41, noting that evidence of independent legal advice as ‘one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor’.

9. [124]

   In Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49, Kiefel CJ, Bell, Gageler, Keane and Edelman JJ observed at [37]-[40] (citations omitted):

10. [125]

    With respect to the distinct but related doctrine of undue influence again Kiefel CJ, Bell, Gageler, Keane and Edelman JJ observed in Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 at [30]-[34] (citations omitted):

11. [126]

    Although this is not a case dealing with testamentary capacity, Carr v Homersham [2018] NSWCA 65 provides a useful summary and analysis of the important considerations to bear in mind when assessing the state of mind of individuals in similar positions to that of the Plaintiff. Providing a summary of the standard formulation of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565, Basten JA observed at [5]-[6] (citations omitted):

12. [127]

    With respect to the third affirmative element outlined by Basten JA, namely the capacity to comprehend moral claims of potential beneficiaries, His Honour said at [9] and [12] (citations omitted):

13. [128]

    Macfarlan and Leeming JJA agreed with the outcome of allowing the appeal decided by Basten JA in Carr v Homersham [2018] NSWCA 65. Tangentially, it should be noted Leeming JA noted the difficulty of using the somewhat historical language of ‘insane delusion’ at [133]-[134] of this case. See also Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13.

Parties’ submissions

1. [129]

   Although an Outline of Submissions was provided by both Plaintiff and Defendant prior to hearing, these respective submissions did not have the benefit of an analysis of the entirety of the evidence raised during the hearing of this matter. As such, I am persuaded that the Final Submissions and the Supplementary Submissions provided by both parties better summarise their respective arguments.

2. [130]

   The Plaintiff’s case is relatively clear, in that it seeks to set aside the property transactions that resulted in property being registered in the Defendant’s name as unconscientious, imprudent and contrary to the Plaintiff’s interests. During hearing, the Plaintiff made fair concessions including withdrawing [28]-[38] of the Points of Claim (T5/26-32; T577/46-7).

3. [131]

   The Defendant’s case is more difficult to formulate. The Outline of Submissions for the Defendant was a bland document comprising predominantly denials and non-omissions, including criticisms of MFP and GFP and the appointment or maintenance of the Tutor. The Defendant did not issue a cross-claim. In the course of argument, I attempted to understand precisely the Defendant’s case with limited success (T626/18-T630/21). At the conclusion of the hearing, I am not entirely clear of the ambit of the defence or its precise argument, although I am capable of summarising the various submissions made by the Defendant.

4. [132]

   The Plaintiff submits the only issue before the Court is whether or not the transactions involving the transfer of the Plaintiff’s real estate assets are valid or are capable of being set aside (Final Submissions [1]).

5. [133]

   The Plaintiff submits that at the time of entering into the transactions, she suffered from dementia and other forms of cognitive impairment (Outline of Submissions [3]; Final Submissions [3]). The Plaintiff submits the Defendant has not served any expert evidence contesting these matters and they were not the subject of any challenge in cross-examination (Final Submissions [3]).

6. [134]

   The Plaintiff refers to evidence of cognitive impairment including the expert evidence of Dr Nadeem Bhanji, the evidence of Dr Mulholland and Dr Humphrys, and other direct and lay evidence to submit she was suffering from cognitive decline from as early as 2005. The Plaintiff submits this vitiated her capacity to divest herself of her major assets (Outline of Submissions [25]-[32]; Final Submissions [10]-[19]; [50]-[65]).

7. [135]

   The Plaintiff also submits the Defendant took over the finances of the Plaintiff following her husband’s death, causing the Plaintiff to undertake a series of complex property transactions (Final Submissions [20]-[21]). The Plaintiff challenges the notion that John Fisher-Pollard gave deathbed instructions that the York Road Property be gifted to the Defendant, and emphasises the Plaintiff’s lack of knowledge of the family’s finances (Final Submissions [16]-[19]). The Plaintiff also challenges the involvement of Mr Mawer in failing to request the Plaintiff obtain independent legal advice, and asserts Mr Mawer’s recollection should be rejected as being at odds with contemporaneous materials and reality (Final Submissions [22]-[27]).

8. [136]

   The Plaintiff submits the Defendant is not the beneficial owner of the Tyagarah Property, and that the property is held on constructive trust for her (Final Submissions [4]). The Plaintiff also submits it is clear she was either unaware or confused about the nature of the relevant property transactions, and that they were kept secret by the Defendant (Final Submissions [28]-[32]).

9. [137]

   The Plaintiff challenges in large part the evidence of Mr Anstee as any evidence of her intention to gift the Grafton Street Property or state of mind. The Plaintiff also rejects the statutory declaration prepared by Mr Anstee as prepared in circumstances where she had no real appreciation of its significance nor did it reflect her wishes (Final Submissions [33]-[44]).

10. [138]

    The Plaintiff claims that the impugned transactions were unconscientious such that they ought to be set aside as between Mrs Fisher-Pollard and the Defendant (Outline of Submissions [33]; Final Submissions [65]). This is based upon the Plaintiff’s submissions as to the cognitive deficits of Mrs Fisher-Pollard, and the submission that the Defendant was aware of these cognitive deficits, took advantage of these deficits and her reliance on him as her caregiver (Outline of Submissions [36]; Final Submissions [65]-[68]).

11. [139]

    The Plaintiff submits that having established the two limbs outlined in Amadio, the onus is on the Defendant to show that the transactions were fair, just and reasonable (Outline of Submissions [37]; Final Submissions [69]). The Plaintiff submits this could never be established.

12. [140]

    In the alternative, the Plaintiff submits that the impugned transactions were highly improvident and procured by the Defendant as a result of undue influence, and hence should be set aside. This relates to the Plaintiff’s submission that the relationship between her and the Defendant was one of trust and confidence in the Defendant, raising a presumption of undue influence in and about the transactions (Outline of Submissions [38]; Final Submissions [70]).

13. [141]

    The Plaintiff claims she is entitled to relief resulting in the transfer of title in the property from the Defendant to her, and associated consequential relief as specified in the Amended Summons (Final Submissions [71]).

14. [142]

    In argument, the Plaintiff no longer pressed paragraphs [28]-[38] of the Points of Claim relating to additional transactions, artworks and collectibles (T5/26-32; T577/46-7).

15. [143]

    The Defendant submits that the conduct of the Tutor (MFP) in this case has deprived the Plaintiff of a real chance to be heard (Outline of Submissions [3]). The Defendant also criticises the power of attorney allegedly granted to GFP and MFP (Outline of Submissions [5]-[7]).

16. [144]

    The Defendant submits that he was appointed with enduring Power of Attorney on 23 August 2011 (Outline of Submissions [12]) and makes criticism of the notice of revocation of Power of Attorney of 12 August 2016 (Outline of Submissions [12]-[16]). He also submits that the characterisation of Mrs Fisher-Pollard as an especially vulnerable person and the characterisation of the transactions generally by the Plaintiff’s counsel is incorrect, submitting instead that the Defendant did not initiate any of the property transactions for his own benefit or through dishonesty (Final Submissions [7]-[16]).

17. [145]

    The Defendant makes general criticism of the lawyer Mr Ian Schofield in Canada (Outline of Submissions [17]). The Defendant also emphasises the legitimacy of the relevant transactions, including in relation to the evidence provided by Mr Mawer, Mr Anstee and Mr Christie (Final Submissions [17]-[31]).

18. [146]

    The Defendant submits Mr Mawer did not breach regulatory obligations, referring to The State of New South Wales v Citco Industries Pty Ltd (2001) 53 NSWLR 451; [2001] NSWCA 406 and the regulatory framework for conveyancing work (Defendant’s Supplementary Submission [1]-[7]).

19. [147]

    The Defendant submits there is no basis for the Plaintiff to invoke undue influence principles, and also that Mrs Fisher-Pollard recognised the Defendant’s situation in life and made the relevant transactions voluntarily and intentionally (Outline of Submissions [18]-[29]).

20. [148]

    The Defendant submits he took no advantage of his position in assisting the Plaintiff (Final Submissions [32]). Rather, he submits the relevant transactions and the placement of property in the Defendant’s name reflected the wishes of the Plaintiff to gift him, as well as provide for him as some form of protection against undue claims by his siblings (Final Submissions [32]-[33]).

21. [149]

    The Defendant also seeks to claim a clearer position from the Plaintiff as to whether or not she had capacity to make a will that operated in favour of her three sons equally (Outline of Submissions [29]). In particular, the Defendant submits that any later will entered into by the Plaintiff whilst in Canada supports her mental capacity (Final Submissions [73]-[84]).

22. [150]

    The Defendant makes criticism of the Plaintiff’s characterisation of the contemporaneous emails provided to the Court (Final Submissions [34]-[69]) and perceived personal criticisms levelled against him of dishonesty (Final Submissions [70]-[72]).

23. [151]

    The Defendant also makes general criticisms of the evidence of Dr Bhanji as based largely on speculation, based on limited material and based on unfair instructions (Outline of Submissions [30]-[31]; Final Submissions [132]-[133]).

24. [152]

    The Defendant makes somewhat generalised submissions on the contextual circumstances surrounding the purchase of the Tyagarah Property (Final Submissions [85]-[117]), as well as criticisms generally on the conduct of the Plaintiff in lodging a caveat over the Tyagarah Property and revoking his power of attorney (Final Submissions [119]-[121]).

25. [153]

    Referring to Al Maha Pty Ltd v Coplin [2017] NSWCA 318, the Defendant submits the principles established in Amadio do not apply to the circumstances of this case, denying the existence of a special disability (Final Submissions [122]-[127]).

26. [154]

    The Defendant denies the evidence proffered by the Plaintiff establishes any capacity issue, stating that ‘the material is well short of a capacity issue’ (Final Submissions [129]-[133]).

27. [155]

    The Defendant also makes an oblique criticism of the Tutor, including delay in bringing proceedings (Final Submissions [128]), making the following submission (Outline of Submissions [33]):

28. [156]

    In argument, the Defendant made general submissions regarding the possible unsuitability of the Tutor. However, the Defendant did not make an active application for the removal of the Tutor (T164/31-T167/36).

29. [157]

    The Defendant also submits generally the accounts of the Plaintiff remain unclear on the evidence (Defendant’s Supplementary Submission [8]-[13]).

30. [158]

    Both parties also provided useful supplementary submissions further elucidating the flow of property transactions and surplus proceeds of sale of the Tuross Head Property and York Road Property (Plaintiff’s Financial Timeline of Property Transactions; Defendant’s Financial Timeline of Property Transactions):

    1. (1)

       The York Road Property was sold for $681,000.00 (TB 815);

    2. (2)

       The Tuross Head Property was sold for $635,000.00 (TB 820);

    3. (3)

       The Grafton Street Property was purchased for $930,000.00 (TB 743) and later sold for $1,260,000.00; and

    4. (4)

       The Tyagarah Property was purchased for $1,075,000.00 (TB 935).

31. [159]

    This means that the surplus of the York Road Property and Tuross Head Property, which was not spent on the purchase of the Grafton Street Property and associated transactions fees, initially amounted to $315,000.00 (Plaintiff’s Supplementary Submissions [11]).

32. [160]

    This $315,000.00 surplus (less a minor withdrawal unexplained of $11,000.00) was paid into the accounts of the Plaintiff including a term deposit, and was apparently used for various withdrawals the bulk of which appear to have been related to the later purchase of the Tyagarah Property (Plaintiff’s Supplementary Submissions [11]).

33. [161]

    The $315,000.00 surplus account was closed in July 2015, with $15,000.00 being transferred to the Defendant and the remaining balance of $306,230.90 transferred to the Plaintiff’s savings account and then her Canadian bank account (Exhibit P13).

34. [162]

    The additional proceeds from the sale of the Grafton Street Property and purchase of the Tyagarah Property were paid into the Defendant’s account and used principally in renovating and furnishing the Tyagarah Property and purchasing a motor vehicle (TB 115-23, 129).

35. [163]

    The Defendant’s evidence as to these funds is less clear, and generally submits that analysis of the flow of funds does not extend after the Plaintiff moved to Canada (Defendant’s Supplementary Submissions [9]) and makes further criticism of the funds potentially available to the Plaintiff from the sale of shares or managed investment annuities (Defendant’s Supplementary Submissions [12]-[13]).

Lay evidence

1. [164]

   Ms Calcutt is a retired opthalmologist. She swore an affidavit dated 12 May 2017. She is a long time friend of the Plaintiff. She was also a very close friend of Mr John Fisher-Pollard.

2. [165]

   She described the Plaintiff as having a very strong personality and someone who liked to do things her own way, but was fun to be with. She had a sense of humour that others may not have appreciated. She was clearly a colourful personality who Ms Calcutt felt very close to.

3. [166]

   Ms Calcutt said that she first noticed the Plaintiff’s memory loss at least two years before Mr Fisher-Pollard died. This included on occasions such as forgetting that she had invited Ms Calcutt over for coffee when she arrived. Ms Calcutt observed that Mr Fisher-Pollard would cover up for the Plaintiff when this occurred. Ms Calcutt also observed at about this time the Plaintiff not being quite as tidy in the house as she had previously been.

4. [167]

   Ms Calcutt recalled in 2010 prior to Mr Fisher-Pollard’s death that he was concerned about the Plaintiff and how she would manage after his death. Ms Calcutt believed that the Plaintiff had never looked after finances and did not appear ever to have a desire to learn about managing finances.

5. [168]

   After the Plaintiff left Tuross Head Ms Calcutt stayed in contact with her mainly by telephone. They would talk at least once a week. They also communicated by email. Ms Calcutt observed during the time she and Ms Roxburgh (another friend) visited the Plaintiff in May 2012 her grief was very evident. She was crying all of the time. Ms Calcutt was surprised because she had not expected to see her in that condition. Ms Calcutt also recalls being driven with Ms Roxburgh in the car from Bondi Junction to Bondi Beach but the Plaintiff appeared to have become lost. She had no idea where she was going and took about two and a half hours to get there.

6. [169]

   In 2013 when she visited the Plaintiff again she noticed her still forgetful. According to Ms Calcutt she had forgotten some of her friends in Tuross Head.

7. [170]

   Further in 2013 Ms Calcutt went to Western Australia with the Plaintiff. She recalls her waking up every morning in tears. The crying would last a long time in the morning.

8. [171]

   In July 2013 the Plaintiff went to stay with Ms Calcutt in Tuross Head. She was frightened to stay downstairs on her own, which again surprised Ms Calcutt.

9. [172]

   When she accompanied the Plaintiff in August 2013 on a cruise they shared a bedroom. She noticed the Plaintiff could never remember which deck the cabin was on, nor the number of the cabin. Ms Calcutt observed however that when in a group of people the Plaintiff would appear confident and highly amusing.

10. [173]

    Ms Calcutt was cross examined as to whether she knew what the case was about. She said she had some idea but she had not spoken to MFP or GFP about it (T21/5-15).

11. [174]

    In 2008 to 2009 she would have seen the Plaintiff on a daily basis. They would have tea and visit each other’s houses (T21/25-40).

12. [175]

    She visited the Plaintiff in Bondi Junction on two occasions. She last saw her in 2013 (T22/15-30).

13. [176]

    She has since learnt that the Plaintiff is living in Canada. Her emails stopped probably at the time she left for Canada (T23/25-45).

14. [177]

    Ms Calcutt agreed that the Plaintiff had a vibrant and feisty personality (T26/1-10).

15. [178]

    Ms Calcutt said that the Plaintiff’s forgetfulness about coffee for example was frequent (T28/10-20).

16. [179]

    Ms Calcutt said that the grief the Plaintiff appeared to suffer at the death of her husband was immediate and lasted for some years (T29/10-25).

17. [180]

    Ms Roxburgh had been a personal assistant to the Chairman of ICI Australia for approximately 15 years before she retired. Her husband died some years ago and she has lived on her own since then.

18. [181]

    She and her husband became good friends with the Plaintiff and her husband.

19. [182]

    Before Mr Fisher-Pollard died, Ms Roxburgh started to notice the Plaintiff was becoming forgetful about things. As time passed she noticed her forgetfulness was worsening significantly. At or about the same time Ms Roxburgh observed the Plaintiff starting to keep a pile of notes at the door to the living room which she believed was used to remind her of things that she needed to remember.

20. [183]

    When Mr Fisher-Pollard became ill the Plaintiff became very quiet and subdued compared with her usual outgoing personality. She was not eating at all.

21. [184]

    After the Plaintiff moved to Sydney Ms Roxburgh remained in regular email and telephone contact with her, typically they would talk every fortnight or so. While she was in Sydney (May 2012) the Plaintiff talked a lot about wanting to be with her husband and wanting to throw herself off the balcony so she could be with him. On one occasion the Plaintiff drove Ms Roxburgh and Ms Calcutt to Bondi Beach but seemed disorientated every time they went out.

22. [185]

    The Plaintiff complained to Ms Roxburgh that she felt that living in the apartment was like living in a prison. Although she had been an excellent cook she did not cook during their stay.

23. [186]

    In 2013 the Plaintiff visited Ms Roxburgh and Ms Calcutt in Tuross Head. Ms Roxburgh thought she seemed lonely. She cried frequently and talked about her computer being her only friend in her apartment in Sydney. It was put to Ms Roxburgh in cross examination that the Plaintiff never expressed any regrets about “acquiring” the property (meaning Grafton Street). Ms Roxburgh indicated that the Plaintiff had wanted to come back to Tuross but moved there because it was the wish of the Defendant (T34/25-35).

24. [187]

    Ms Roxburgh agrees she had no emails from the Plaintiff from Canada (T34/40-45).

25. [188]

    Ms Roxburgh accepted that the Plaintiff was a strong personality who knew what she wanted (T36/20-30).

26. [189]

    Ms Roxburgh was not concerned about the Plaintiff keeping a pile of notes at the door (T39/15-25).

27. [190]

    GFP lives in Canada and works there as a teacher. His affidavit was sworn on 28 September 2016. He is the eldest son of the Plaintiff, Mrs Fisher-Pollard.

28. [191]

    In or about 1997 or 1998 GFP accepts that his father gave him $10,000 which was used to build a garage. He no longer has any record of the exact amount. He recalls his father saying to him though that he was going to give MFP the same amount and that “Piers has already had the same amount of cash from me”. For a time between 2001 to 2003 he and his family moved back to Australia so his children could spend some time with their grandparents. He then returned to Canada.

29. [192]

    GFP also accepts that after he went back to Canada he received a letter saying that he and his family had been overpaid approximately $2,500 as part of some family allowance. His father paid the amount and kept scrupulous records of things although he never saw his father’s records. He did not repay that amount to his father.

30. [193]

    GFP recalls on one occasion discussing his possible inheritance with his father and his father telling him that the assets would be divided equally between himself and his brothers.

31. [194]

    GFP realised that his parents owned a flat on York Road in Queens Park. Family would stay there from time to time when they were in Sydney, or when flying in and out of Sydney to visit. He did not know the apartment had been sold until sometime after it had happened.

32. [195]

    He visited Australia in July 2010 when he discovered his father was ill with cancer. In August 2011 the Defendant telephoned him to say his father was in hospital and he flew to Australia arriving on 17 August. He was due to return on 29 August but delayed the flight and was present when his father died. He returned to Canada on 11 September 2011.

33. [196]

    During his father’s lifetime his parents visited him in Canada on six or seven occasions. His mother would not travel alone.

34. [197]

    Prior to his father becoming ill he would communicate with his mother monthly or weekly by email or telephone. When his father became ill he called every day. GFP believed that his father paid all the bills, including credit cards.

35. [198]

    When his father became ill he believed his mother’s personality changed. When his father was in hospital he observed his mother each day at the bedside of his father and she would stay until late at night. When she was in the hospital she appeared to engage his father so as to keep his spirits up. However when she left the hospital GFP observed her becoming withdrawn and quiet and crying a lot. He also observed that she had ceased keeping Tuross Head tidy.

36. [199]

    Again after his father died, his mother he believed became very quiet and withdrawn and forgetful. She seemed to forget family birthdays as an example.

37. [200]

    GFP recalled his mother sometimes arguing with his father about her relationship with the Defendant. She once told GFP that his father did not like it when she bought the Defendant diet supplements and his organic food. She was worried if she did not do that the Defendant might forget to eat properly or not eat at all.

38. [201]

    After the Grafton Street property was purchased, GFP had a conversation with his mother. He asked her how she managed to buy the flat. She informed him that money from Tuross Head and Queens Park had been used to buy the flat. She also told him that the Defendant was living with her but he did not own the flat because it was hers.

39. [202]

    In February 2014 GFP had a conversation with his mother in which she told him that she was thinking of moving into a different house, a property about 20 minutes from Byron Bay. GFP said to his mother that she did not know anyone there and how would she make new friends. This was the first time he heard of any move from Bondi Junction to Byron Bay.

40. [203]

    He relinquished his position as Executor of his father’s estate on 22 December 2011 at his mother’s request. The request was via a telephone call which involved the Defendant and the call was on loud speaker. GFP recalled the Defendant in the background urging him as it were to give up the position of Executor.

41. [204]

    In cross examination GFP was asked whether there was a history of antagonism and disputes between the brothers. He rejected that proposition (T116/10-20).

42. [205]

    GFP agreed that after his father died he suggested that he and his brothers might have the benefit of a Mediator. The situation was that his mother was not willing or seemingly able to make any decisions (T116/40-50).

43. [206]

    The decisions concerned the holding of a funeral, a celebration of life or a wake in order to give closure (T117/15-20). GFP accepted that after his father died his mother told him that she wished to make provision so that the Defendant would always have a place to live (T136/10-15).

44. [207]

    His mother never described any property that the Defendant lived in as his or for all practical purposes his property (T136/20-30).

45. [208]

    When GFP discovered that his mother was moving to Byron Bay she did not tell him the property was to be bought in the Defendant’s name (T137/40-45).

46. [209]

    GFP did not accept the proposition that the property in Queens Park was regarded as the Defendant’s home (T150/30-40).

47. [210]

    GFP heard from the Defendant that his mother was moving to live with him at York Road (T151/45-50).

48. [211]

    The communication he received from his mother was that she really was not happy anywhere without her husband (T152/15-25).

49. [212]

    GFP recalled York Road as having one or two steps up from the street, a security door and then a flight of stairs (eight or nine or ten concrete steps) to the apartment which had two bedrooms on one floor with a kitchen and living room (T152/30-40).

50. [213]

    GFP accepted that his mother would probably prefer no stairs but she had no problem walking up one or two flights of stairs (T152/35-40).

51. [214]

    After his father’s death GFP recalled his mother was grieving and she had no firm opinions about anything at all (T153/20-30).

52. [215]

    It was suggested to GFP that after the money for the garage his father would from time to time give him moneys which he would describe as disbursements. GFP denied there were any significant sums but he did recall one small gift (T156/15-26).

53. [216]

    GFP recalled that if his father distributed moneys it was done equally (T156/30-40).

54. [217]

    GFP denied having a conversation with his parents in which they said they treated York Road as belonging to the Defendant (T158/1-15).

55. [218]

    At some point after his father’s death GFP did appreciate that his mother and the Defendant were living in a property in Grafton Street (T158/35-45).

56. [219]

    GFP did not know until sometime after the event that the Byron Bay property had been purchased (T160/25-35).

57. [220]

    He could not communicate with his mother about it because there was no landline or other means of communication (T160/40-45).

58. [221]

    GFP had no input as to whether or not his mother was going to look at or purchase a property (T161/5-15).

59. [222]

    Wherever she might be GFP believed she would be with the Defendant. (T162/10-15).

60. [223]

    In re-examination GFP said he recalled having a conversation with the Defendant about a half page advertisement which he saw at the York Road apartment, for a high rise apartment in Grafton Street. He believed it was from the Wentworth Courier newspaper. GFP asked the Defendant what was happening and the Defendant simply indicated he wanted to take their mother to have a look at it as a diversion from her misery and upset. In response GFP said that he did not believe it would be an appropriate place for his mother to socialise and live (T168/10-30).

61. [224]

    MFP swore an affidavit dated 29 September 2016. He lives and works in Switzerland as a communications director. He is the second son of the Plaintiff and Mr John Fisher-Pollard.

62. [225]

    The first MFP discovered about his father’s ill health was in a telephone call on 17 August 2011 with the Defendant.

63. [226]

    The next morning he flew to Sydney with his then girlfriend Irena Majcen.

64. [227]

    MFP observed his mother to look very clearly under a lot of strain and very tired. She also seemed anxious and worried. After his father’s death MFP returned briefly to Switzerland, but then came back for his father’s cremation. During that time he found his mother to be inconsolable and beside herself with grief. She seemed virtually helpless. She would say regularly that she could not live without her husband and did not want to go on without him. She lost interest in food, did not want to go out and did not want to organise a funeral for him.

65. [228]

    After MFP returned to Switzerland for the second time in December 2011 he did not receive any communication from his mother until December 2012.

66. [229]

    MFP recalls the Defendant showing his mother an advertisement from the Wentworth Courier for the sale of the property at Grafton Street. He had a similar conversation as was sworn to by his brother GFP. He was given a similar response by the Defendant, namely that it was merely a distraction for her so as to avoid her being so focussed on their father.

67. [230]

    MFP further said he had no knowledge of the sale of Tuross Head or Queens Park until after the sales had occurred.

68. [231]

    MFP came back to Australia in 2011 for Christmas. He recalled at that stage his mother had moved to Grafton Street. He also recalled her being quite confused about where she was.

69. [232]

    MFP asked his mother why the Defendant was living with her. She replied that she had promised her husband that she would make sure that the Defendant had a roof over his head. She also said she did not want to leave Tuross Head, however she appeared resiled to the fact that Grafton Street was her home but that she had a continuing obligation to look after the Defendant.

70. [233]

    MFP said he asked his mother who actually owned the apartment and she told him that she owned it, but that she had put it into the Defendant’s name so that he could get the first home owners’ grant.

71. [234]

    During the time MFP was in Australia he and his mother and others went for a brief time to Seal Rocks. During their time there he specifically recalled his mother saying that she had moved from Tuross Head because the Defendant told her to do so and that further he thought that it would be better if she lived with him in Sydney.

72. [235]

    Following his father’s death MFP had a general conversation with his mother about a possible inheritance. She indicated to him that her husband had always wanted the three boys treated equally and that she proposed to follow that course.

73. [236]

    MFP recalled on one occasion in the late 1990s when his father gave him an amount of cash, the precise amount which he cannot recall but somewhere between $5,000 and $10,000. Prior to that they had loaned him moneys to buy a car which he repaid.

74. [237]

    In August and again in December 2011 when visiting his mother MFP noticed that she had some memory issues. He observed her making notes for herself but sometimes she would forget what she had done with the notes. During 2012 and 2013 he recalled having conversations with his mother which she would later deny had taken place. After his father died his mother ceased sending Christmas or birthday cards whereas before his death that was routine.

75. [238]

    At some point in early 2014 he discovered his mother had moved to Tyagarah. He visited his mother there in July 2014. The property was on a large block of land which was uneven and overgrown with vegetation. He had a conversation with his mother in which she commented on the size of the land and his mother responded that she never wanted to move there, she only moved there because the Defendant wanted to. He asked his mother who owned the house and she replied that she did.

76. [239]

    It was not until November 2014 that he carried out a search and discovered that the Defendant was the registered proprietor. He then communicated with his brother GFP and raised concerns. He accepted that he found out at some point that his mother had given an enduring power of attorney to the Defendant but he believed it was some considerable time after his father’s death (T177/20-30).

77. [240]

    MFP discovered that his mother was moving to Tyagarah before she moved but he could not recall precisely when he found out (T183/25-50).

78. [241]

    MFP did discuss with his mother when he discovered the fact that the Tyagarah property was in the Defendant’s name (T185/1-7).

79. [242]

    He discussed with his mother on a number of occasions the fact that the property was in the Defendant’s name (T185/35-50).

80. [243]

    MFP said that his mother was not happy living at Tyagarah but after some brief discussions she did not want to be pushed any further on the topic (T188/20-50).

81. [244]

    MFP said however that his mother was quite adamant the property was not the Defendant’s (T189/10-15).

82. [245]

    During discussions with his mother he had assumed that his mother paid for or substantially paid for the property (T189/30-40).

83. [246]

    MFP gave no evidence as to how much any property was sold for nor did he make any enquiries as to the proceeds of sale of Grafton Street (T191/30-50).

84. [247]

    MFP accepted his mother did not like being alone (T194/5-10).

85. [248]

    MFP’s mother made no comment about the stairs at the York Road apartment (T195/20-35).

86. [249]

    MFP accepts that his mother did tell him prior to his father’s death about mobility issues she was having especially going up and down stairs (T196/1-15).

87. [250]

    He had recently contacted Mr Boom who had been the family solicitor for many years (T199/5-25).

88. [251]

    It was put to MFP that his father was more generous to him and GFP than he has made out. He rejected that proposition (T212/15-30).

89. [252]

    MFP further denied receiving moneys, including the proposition that his father had provided him with moneys to assist in the purchase of a property at Kirribilli (T212/30-50).

90. [253]

    MFP agreed that both his parents probably used the terminology in relation to Queens Park as “Piers’ Place” (T213/5-20).

91. [254]

    MFP agreed that he believed this mother did have friends in and around Sydney and he believed that she may have indicated to him that she was being looked after and that she praised the Defendant (T224/10-30).

92. [255]

    In re-examination MFP said that the conversation he had with his mother about the Grafton Street property being in the Defendant’s name (as in legally owned by him) provoked a comment by his mother that it was purely for the purposes of avoiding stamp duty for the First Home Owners’ Grant (T226/30-45).

93. [256]

    In further cross examination MFP said that when he first had a conversation with his mother about Grafton Street she had said it was in her name (T228/5-20).

94. [257]

    The Defendant affirmed five affidavits, 15 June, 19 August, 9 November 2017 and 11 March and 15 March 2018. Leaving aside irrelevant material in his affidavit of 15 June 2017, he said that in 1992 after his parents sold their property in Turramurra and bought a house in Tuross Head he commenced to live in a property in York Road, Queens Park. The Defendant asserted that before his death, his father asserted that the Queens Park property was his. Further his mother asserted that “they” had helped his brothers buy their first homes and they wanted to give the Defendant a sense of security.

95. [258]

    The Defendant asserted that his mother instructed “her” conveyancer Mr Mawer to put the title of the property in Grafton Street in his name only.

96. [259]

    The Defendant also asserted that it was always his mother and father’s intention that the Queens Park apartment be in his name and also that the Bondi Junction (Grafton Street) apartment be in his name.

97. [260]

    In his second affidavit of 11 August he responded to numerous assertions made by Ms Roxburgh, Dr Humphrys, Ms Calcutt generally qualifying and/or denying certain things they gave evidence about.

98. [261]

    His third affidavit of 9 November in part gave further evidence about his financial position and responded to aspects of Ms Henderson’s affidavits (which were not read).

99. [262]

    His affidavit of 11 March 2018 dealt with certain medical issues concerning his father and asserted that his mother wanted better accessibility than the Queens Park apartment had provided and she wanted an ocean view. Again he asserted that she had contacted Mr Mawer the conveyancer and indeed invited the Defendant to attend his office and assist.

100. [263]

     The Defendant again asserted that his mother had said that his brothers had been helped substantially in the purchase of their homes, were well-provided for and were financially secure.

101. [264]

     The Defendant accepted that after a couple of years of living together in Grafton Street he was the one who proposed a move out of Sydney, as he found it too busy. The Defendant asserted that his mother liked the idea.

102. [265]

     In his affidavit of 15 March 2018 the Defendant deposed to him discovering certain documentation belonging to his mother. In his evidence in chief, the Defendant said that at the hospital when his father was dying he was present with his mother. It was about five days before his father actually died. His father said to his mother “make it good on the apartment for Piers” (T280/25-35).

103. [266]

     His father also said to him that he now had responsibilities and that he should try to keep some money in his account at all times and that his father also said he was proud of him (T281/20-35).

104. [267]

     His mother said some time after his father died that she wanted to come and live with the Defendant in Sydney (T283/10-20).

105. [268]

     The Defendant also said at one point that he had a conversation with his mother in which she said that both brothers were substantially helped in the purchase of their first home (T284/10-20).

106. [269]

     At some later point when they were living in Grafton Street, his mother said to him that both brothers had been helped and now she wanted to help the Defendant (T284/40-50).

107. [270]

     Again during one conversation his mother said that Grafton Street was none of his brothers’ business and they had both been helped (T285/5-15).

108. [271]

     The Defendant also said that his mother when saying that she wanted to come and live with him in Sydney stressed the view that the York Road apartment was too small, it had no outlook and the stairs were difficult (T286/5-15).

109. [272]

     The Defendant in company with a real estate agent Ms Stella Gankin inspected the flat in Grafton Street before it was purchased (T286/25-45).

110. [273]

     The Defendant also reiterated on several occasions that she would like to give the apartment to the Defendant (T287/5-15).

111. [274]

     The Defendant asserted that his mother went to St George Bank following a discussion about the sale of York Road (T287/40-50).

112. [275]

     In cross examination the Defendant asserted on certain occasions he did pay rent at York Road when he had money and could afford it. He also paid toward the upkeep and expenses when he could. However he also agreed he did not pay amounts regularly for his occupation of the property (T296/5-10).

113. [276]

     The Defendant asserted that there was an understanding created within the family that the apartment in York Road was his (T296/20-25).

114. [277]

     The Defendant said that he had had difficulties with the law but he had no problem with drugs and that he had not often worked and his parents had helped him out (T296/35-50).

115. [278]

     The Defendant denied that he ever compared his situation with that of his brothers and concluded that his position was somehow unfair (T297/15-20).

116. [279]

     The Defendant agreed that he had taken photographs and written text for a book on dogs (T298/5-10).

117. [280]

     The Defendant agreed that for some years prior to the death of his father he appreciated that his father had been experiencing dementia type symptoms (T298/35-40).

118. [281]

     The Defendant denied having been consulted by hospital staff when his mother was admitted to hospital on 6 August 2011 (T298/40-50).

119. [282]

     The Defendant further denied that a reference in hospital records at TB 1050, those of Canberra Hospital insofar as it made a reference to the patient’s son, was not a reference to him (T300/25-35).

120. [283]

     The Defendant further denied knowing his mother had been admitted to hospital (T301/15-25).

121. [284]

     The Defendant suggested that his mother asked him to sign the power of attorney on 12 August 2011 but he agreed there was no urgency in doing so (T304/35-45).

122. [285]

     The Defendant said his mother wanted a power of attorney done because she was worried about one of his brothers stepping in to become a power of attorney. He was asked how they could do that. He said he had no answer for that (T305/20-30).

123. [286]

     The Defendant agreed that in December 2011 he told somebody at the War Memorial Hospital that his mother had become repetitive and forgetful (T305/40-50).

124. [287]

     The Defendant was shown clinical records from the War Memorial Hospital (TB 1287). The Defendant said that insofar as the clinical notes report that the Plaintiff’s son reported significant memory lapses that reference was not to him, as he did not speak to anybody at the hospital (T307/5-10).

125. [288]

     The Defendant did however accept that he had informed his mother’s GP Dr Hameiri that his mother had significant memory losses (T307/25-40).

126. [289]

     The Defendant however later denied that he told Dr Hameiri that his mother had significant memory losses and that what he told the doctor was that she was repetitive and forgot things and that what he said could have been paraphrased (T308/5-15).

127. [290]

     The Defendant was taken to TB 1230. This was a report of 1 May 2012. The Defendant’s attention was directed to “lives with son. Son reports mother’s dementia is worse. Loses things, leaves herself notes, not looking anymore, cannot live alone”. It was put to the Defendant that he had provided that information to the triage nurse, but he did not know whether he did or he did not (T315/20-40).

128. [291]

     The Defendant also suggested that one of his brothers might have arranged a visit to the triage nurse and his brother GFP was always “shadowing” his mother’s moves (T316/5-25).

129. [292]

     Although the Defendant could not recall when he had his motor accident he believed it was highly unlikely that he would have taken his mother to the triage nurse in May 2012 (T318/15-20).

130. [293]

     The Defendant agreed that when his mother was seen by Dr Mulholland in June 2012 he could have told her that his mother had memory problems for the last two or three years (T323/1-5).

131. [294]

     The Defendant accepted his mother’s forgetfulness in needing to rely upon notes and personal care issues and that he was aware of this at the time of his father’s decline in August 2011 (T324/40-45).

132. [295]

     Notwithstanding the terms of his email of 16 September 2011 (TB 748) his mother did not need a carer and he was not her carer (T327/20-30).

133. [296]

     The Defendant agreed that in the particular email he had expressed the view that it was not easy and some days he only got to leave his mother alone for an hour or so. He agreed that she did not like being left alone. He denied however that he was asked to accept an appointment under a power of attorney because his father was concerned that his mother could not look after herself (T327/25-50).

134. [297]

     The Defendant agreed that the handwritten note taken by his mother at his father’s bed was in effect death bed instructions (T331/40-50).

135. [298]

     The Defendant said his mother was concerned that his brother MFP (whom she feared most) would do anything to stop her wishes and desires. She did not think GFP would have a problem but she thought that MFP would find some way of initiating legal action (T334/20-35).

136. [299]

     The Defendant also said that his mother was worried about MFP as he was a serial litigator (T335/5-30).

137. [300]

     The Defendant agreed that his mother would have contemplated throwing herself off the balcony as she was very unhappy about his father dying and further that she was not happy anywhere (T335/40-50).

138. [301]

     In an email dated 23 October 2015 the Defendant agreed that he sent an email in which he referred to his mother crying every day (T336/20-45).

139. [302]

     The Defendant agreed that the various activities concerning the real estate transactions in 2011 were all occurring whilst at the same time he was telling his brother, MFP that his mother was not stable yet. However he asserted that his mother said she wanted to give him the Grafton Street apartment (T340/45-50).

140. [303]

     The Defendant denied he was managing his mother’s finances (T342/50-25). He said his father had left the situation so that it could be left on “auto pilot” (T344/20-30).

141. [304]

     The Defendant accepted that his mother moved into the York Road property a few weeks after his father’s death (T350/45-50).

142. [305]

     The Defendant asserted his mother made the decision to sell Tuross Head (T352/35-40).

143. [306]

     The Defendant denied that it was his idea to buy the Grafton Street property (T353/30-45).

144. [307]

     Mr Mawer was a recommendation from a person at St George Bank (T354/1-15).

145. [308]

     The Defendant said he knew nothing about property purchases and he did not really understand a lot about property. He had written real estate adverts but he would not know when to use a solicitor and when not (T354/25-40).

146. [309]

     The Defendant said that he tried to raise with his mother that she not move straight away but that she wanted to do just that (T364/4-35).

147. [310]

     The Defendant was unsure whether he signed the contract for the purchase of Grafton Street before a death certificate had arrived (T366/20-30).

148. [311]

     As between he and his mother it was the Defendant who was writing emails to Mr Mawer (T368/40-50).

149. [312]

     The Defendant asserted it was his mother who had organised a bridging loan (T369/40-45).

150. [313]

     The Defendant accepted that the death notice was dated 30 September 2011 and he signed the contract for Grafton Street on 12 September 2011 (T371/1-15).

151. [314]

     The Defendant suggested his mother never told him that she was intending to purchase it herself and never told him that she had changed her mind and that it would be purchased in his name (T372/25-5).

152. [315]

     The Defendant suggested it was true that his mother, prior to his father’s death had discussed selling York Road. It was put to him that that was false. He rejected that (T376/1-15).

153. [316]

     The Defendant agreed that after his father died, his mother spoke about wanting to join him (T380/40-50).

154. [317]

     The Defendant accepted that his mother was suffering grief but she was very focussed about what she wanted and she knew what she wanted to do (T383/40-50).

155. [318]

     The Defendant rejected that his mother did not know anything about the fact that the Grafton Street property was not in her name (T397/35-50).

156. [319]

     The Defendant denied that he manufactured a story about a first home owners’ grant (T399/5-15). Indeed the Defendant asserted it was his brother MFP who manufactured the story (T399/10-15).

157. [320]

     The Defendant denied that he retained Mr Anstee, it was his mother (T401/15-25).

158. [321]

     The Defendant was unsure and could not recall whether he telephoned Mr Anstee to provide information to him (T404/20-30).

159. [322]

     The Defendant was keen to have a statutory declaration prepared because he thought it would provide him with some protection in relation to his position. He said he thought it would record his mother’s intentions (T405/15-25).

160. [323]

     The Defendant knew his mother had made a Will in October 2011 dividing the entire estate between himself and his two brothers. He was present when his mother made the will (T406/30-40).

161. [324]

     The Defendant believed that his mother was giving him the lion’s share of the proceeds of the sale of real estate but in addition leaving him another one third of the balance of her estate (T407/1-5).

162. [325]

     The Defendant had to stop his mother from being even more generous because he was concerned she may not have enough money left to pay strata rates (T407/5-20).

163. [326]

     The Defendant denied it was his idea to transfer assets to him whilst his mother was alive was an attempt to avoid estate litigation. He denied that (T408/1-10).

164. [327]

     The Defendant denied asking Mr Anstee to do anything. It was his mother who dealt with Mr Anstee. He certainly did not ask Mr Anstee to provide his mother with any advice (T411/5-40).

165. [328]

     Mr Christie was purely a witness to the Plaintiff’s signing. He was there because Mr Anstee requested him to be there (T412/5-25).

166. [329]

     The Defendant said he was present when Mr Anstee and his mother met and she dictated the first part of the statutory declaration (T413/1-15).

167. [330]

     The Defendant denied that after his father died he wanted to ensure that he effectively obtained ownership of an asset (T422/25-35).

168. [331]

     It was put to the Defendant that his mother received no financial benefit. His response was “one does not normally receive financial benefit when giving a present. The benefit is normally felt in other ways” (T423/10-15).

169. [332]

     It is helpful before considering Mr Mawer’s evidence to note the relevant legal framework governing licensed conveyancers.

170. [333]

     The regime for the licensing and regulation of conveyancers in New South Wales is contained in the Conveyancers Licensing Act 2003 (NSW) and associated regulations. Section 4 of the Act provides:

171. [334]

     The Second Reading Speech to the Conveyancers Licensing Bill 2003 (NSW) also provides some relevant insight: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 2003 at 106-10. The Second Reading Speech outlines the kind of work Parliament intended conveyancers to undertake (at 107):

172. [335]

     In Turner v Supreme Court of Queensland [2003] AATA 887, Purvis DP (that being, Deputy President) observed of the difference between Queensland solicitors and New South Wales conveyancers regulated by the then Conveyancers Licensing Act 1995 (NSW), as repealed by Conveyancers Licensing Act 2003 (NSW) section 168(1), at [40] and [43]:

173. [336]

     The Conveyancers Licensing Regulation 2015 (NSW) Schedule 3, clauses 12 and 14 provide:

174. [337]

     Mr Mawer swore one affidavit dated 6 July 2017. He is the owner of a company known as Property Legal Services and it trades as a licensed conveyancer. He has practised as a licensed conveyancer for a number of years having worked as a paralegal for a firm of solicitors.

175. [338]

     He became involved with the Plaintiff and the Defendant as the result of a recommendation from St George Bank. He stated that at each and every meeting with the Plaintiff he was and remained completely satisfied as to her mental capacity. She was mentally sharp, clear in her communications and gave him no reason to be concerned. The Defendant was involved and assisted but he met the Plaintiff in the Defendant’s absence.

176. [339]

     He said had he had a concern about her mental capacity he would not have continued to allow the transaction to proceed. It remains his practice to discuss matters with experienced solicitors or colleagues if he has any concerns.

177. [340]

     He said when he was first involved he understood that it was contemplated that the Plaintiff would be the purchaser but at a meeting in his office she instructed him that she wanted the property purchased in the Defendant’s name as sole title holder.

178. [341]

     He “quizzed” her about this and formed a view that she understood the effect of her instructions. He said he raised a number of possibilities with her. He also indicated that he told the Plaintiff that if the property was in the Defendant’s name he would be free to sell it without her permission. He believed that the Plaintiff acknowledged all of those matters. Mr Mawer agreed in cross examination that he was not admitted as a legal practitioner. He had done some subjects during his course and that the course leading to becoming a registered conveyancer is a two year full time study course (T434/30-45).

179. [342]

     Mr Mawer agreed he did not have a law degree, nor was he admitted as a legal practitioner in this or any other state. He rejected the proposition that he was not qualified to give legal advice. He asserted he was able to give legal advice as a licensed conveyancer. In particular he would explain the meaning of a contract, he would assist the client in executing the document, he had drafted legal documents and he would provide advice and interpretations about the meaning of legal documents (T435/20-35).

180. [343]

     He also advises on the meaning of powers of attorney (T436/14-21).

181. [344]

     Mr Mawer said he was careful to act professionally and keep proper records (T438/5-25).

182. [345]

     He denied that he has become concerned that he might have done something wrong some years ago (T440/5-10).

183. [346]

     He agreed that his first contact with the Defendant was around 9 September 2011 (T440/25-30).

184. [347]

     Mr Mawer agreed that in his affidavit he said very little about receiving instructions from the Defendant (T441/15-20).

185. [348]

     Mr Mawer said his first meeting with both the Plaintiff and the Defendant took about one hour. It would be exactly the type of meeting that he would make a file note about (T442/5-20).

186. [349]

     Mr Mawer agreed that he was careful to ensure that he had completely complied with the subpoena he had been issued (T443/20-25).

187. [350]

     Mr Mawer agreed that on documents relating to the sale of York Road the vendor was recorded as the Plaintiff and the Defendant was recorded as “other party”. He was asked what it meant. He said it did not mean the registered proprietor, it did not mean his client and it did not mean the vendor. He said it was some general term used for someone who had some connection to the transaction (T444/25-35).

188. [351]

     He was asked to accept that the records concerning York Road and Tuross Head only had the Defendant’s mobile number on them. He responded that nothing should be drawn from that (T445/25-35).

189. [352]

     The documents suggest in relation to the purchase of Grafton Street, that Mr Mawer was considering whether the Defendant would qualify for a first home owners’ grant (T447/5-15).

190. [353]

     Mr Mawer suggested he was obtaining instructions from the Plaintiff in relation to the Tuross Head property (T449/45-50).

191. [354]

     When asked why he was seeking instructions from the Defendant by email as opposed to his mother he could not recall why he was doing that (T450/10-40).

192. [355]

     Mr Mawer agreed that in parts of his file he referred to the Defendant as his client in the context of the Tuross Head matter. His response was that both mother and son were his clients, and the Defendant was buying Grafton Street. Mr Mawer also believed that the Defendant was his client in relation to Tuross Head because he had an interest in the property. Whilst accepting he was not a lawyer, he reasoned that the Defendant’s interest in Tuross Head and York Road was because the proceeds were going to be used for Grafton Street (T451/20-45).

193. [356]

     Mr Mawer thought that both Plaintiff and Defendant were his clients at various points and he also knew they were mother and son. Further he knew that the only basis upon which the Defendant could purchase the Grafton Street property was to get money from his mother. This excited concern on his part (T452/20-40).

194. [357]

     The Plaintiff instructed Mr Mawer in company with the Defendant that she wanted to allow the two properties to be used as security so she could provide funds for her son to buy Grafton Street (T453/25-30).

195. [358]

     When he first met the Plaintiff and Defendant, the Plaintiff did most of the talking. She quite clearly stated that she wanted the Defendant to be the owner of the property in Grafton Street and that she was going to provide the money for it (T455/15-25).

196. [359]

     Mr Mawer discovered that the money was in fact to be a gift not a loan and that excited concern on his part. Mr Mawer agreed that the circumstances raised a concern in his mind about the prudence of what the Plaintiff was about to do. Mr Mawer did not ask her about her assets and liabilities and he agreed there would have been no harm in sending her away for independent legal advice. He did not do so because her manner was clear and concise (T456/15-50).

197. [360]

     He agreed that he had no medical qualifications but insisted that he had the same qualifications to detect diminished capacity as that of a solicitor. To check capacity he would ask the person to explain what they were doing, and whether they were aware of their surroundings (T457/10-30).

198. [361]

     Mr Mawer also said that he could check if a person was not able to communicate or maintain their commitment or were not able to understand and interact in the normal communications between adults or were making silly choices for example (T457/35-45).

199. [362]

     Mr Mawer agreed that when he was confronted with changed instructions as to who was going to buy the Grafton Street property it excited concern on his part. He asked some questions but did not think it was necessary to send her away for independent legal advice or make further enquiries as to her assets and liabilities (T458/15-40).

200. [363]

     It also raised a red flag that her husband had died less than two weeks before (T458/45-50).

201. [364]

     She did not appear to be upset, she appeared remarkably clear and concise (T459/15-30).

202. [365]

     Mr Mawer did not understand that there were degrees of capacity (T459/20-30).

203. [366]

     Mr Mawer saw no red flags by reason of the fact that at the time he was talking about these transactions there was no death certificate (T461/5-25).

204. [367]

     Mr Mawer accepted he saw there was a possibility of conflict and having made his own investigations and having done so he made a choice to resolve the conflict himself as opposed to sending the Plaintiff off for independent advice (T462/1-5).

205. [368]

     Mr Mawer also indicated it was not for him to resolve any conflict and then answered that he did not see any conflict. He ultimately agreed he resolved the conflict in his own mind (T462/10-25).

206. [369]

     Mr Mawer indicated that on each and every transaction he regarded the Plaintiff and the Defendant as his clients (T463/30-40).

207. [370]

     Mr Mawer agreed that he was provoked to quiz the Plaintiff when he had a change of instructions as to who would buy the Grafton Street property but he failed to make any diary note about what he described as a critical point (T465/1-10).

208. [371]

     He agreed it would have been easy to make a file note but he was busy (T465/30-40).

209. [372]

     It was put to Mr Mawer that the absence of a diary note suggests that the meeting did not occur. Mr Mawer rejected that and indicated that they were both in his room (T466/35-45).

210. [373]

     It was put to him that he had reconstructed or convinced himself that the meeting occurred because he was convinced that he might have done something wrong. He rejected that (T466/40-45).

211. [374]

     Mr Mawer thought it was part of his job to determine the prudence of the transaction but he accepted the Plaintiff at face value (T468/5-30).

212. [375]

     Mr Mawer accepted that he went through his files for the purposes of preparing his evidence and he had not found any contemporaneous file notes of any of the meetings he speaks about in his affidavit (T473/30-40).

213. [376]

     Mr Christie swore one affidavit of 10 August 2017. He is a solicitor practising from home in the Eastern Suburbs of Sydney.

214. [377]

     He first met the Plaintiff in a professional capacity for the purposes of witnessing her signature to a statutory declaration in the chambers of Mr Mark Anstee, barrister who also practised from home in Bondi.

215. [378]

     He received a call from Mr Anstee asking whether he could attend upon him for the purposes of acting as a witness. The Defendant was also present when he arrived in the waiting room and throughout the appointment.

216. [379]

     Mr Christie was satisfied from general conversation he had with the Plaintiff that she was capable of executing the statutory declaration.

217. [380]

     Mr Christie has practised as a solicitor for 12 and a half years (T509/40-45).

218. [381]

     Mr Christie was not entirely sure whether Mr Anstee was a friend of his or not but he had worked with him over the years (T510/10-20).

219. [382]

     Mr Christie knew nothing about the matter. He was simply performing as he saw it the role of a witness (T510/30-35).

220. [383]

     He was telephoned on the day and simply asked by Mr Anstee whether he could come over to witness the signing of the statutory declaration (T510/45-50). When asked he stated he had spoken to Mr Anstee about the matter since (T511/10-20).

221. [384]

     Mr Christie realised at some point that he was not expected to give any independent legal advice and he really did not ask any more about the matter (T512/25-35).

222. [385]

     Mr Christie was asked to produce documents in relation to his involvement and his response was that there were no documents kept (T513/15-25).

223. [386]

     The whole process involving Mr Christie on the day took about five minutes and he was paid $150 in cash (T514/25-35).

224. [387]

     He had a quick look at the statutory declaration. He did not ask any questions about it, he was simply there to witness the documents (T515/1-10).

225. [388]

     Mr Christie agreed that his role was mechanical. He was simply there to perform the role of a witness (T515/10-15).

226. [389]

     He was asked what qualifications he had to detect diminished capacity. His answer was the same as any solicitor. He had a law degree, but no medical qualifications (T515/25-35).

227. [390]

     Mr Christie’s practice involved giving legal services to persons rejected by the Law Society or Legal Aid (T515/45-50).

228. [391]

     When asked how he went about detecting diminished capacity Mr Christie answered he “looked for drooling at the mouth” (T516/35-40). He expanded by saying that if a person was not obviously in control of their physical capacities, shaking or of nervous demeanour and all such things agitated et cetera (T516/40-50).

229. [392]

     Mr Christie agreed he was not there to give advice to anybody (T518/5-30).

230. [393]

     Mr Anstee had provided a statement of intended evidence to the Plaintiff’s solicitor. He was however in due course called by the Defendant.

231. [394]

     Mr Anstee formerly practised as a barrister from chambers in Bondi and he had a suite in the city as well. He is currently a student engaging in “other studies” (T519/10-20).

232. [395]

     He thought he had seen the Plaintiff on 18 December 2012 in his “home office” at Bondi. The Defendant was present with her at the time. The Plaintiff told him that she wished to confirm her instructions that she wanted to “currently” give the Bondi Junction apartment to the Defendant (T519/30-40).

233. [396]

     The Defendant told Mr Anstee at the time that he was assisting his mother in areas where she might not remember, but she gave clear instructions as to the gift she wanted to make to the Defendant (T519/45-50).

234. [397]

     Mr Anstee volunteered that he thought she appeared competent to give instructions (T520/1-5).

235. [398]

     The next time he saw them was in May 2013 again at his Bondi “chambers” and Mr Christie arrived shortly after their arrival (T520/25-35).

236. [399]

     At the first meeting he took a handwritten draft of the Plaintiff’s desires and wishes. The morning of the second meeting he typed on his computer a draft for the Plaintiff to have a look at. In the meantime he had received a report from Dr Hameiri of Double Bay (T520/40-45).

237. [400]

     Mr Anstee offered to read the statutory declaration to the Plaintiff but she refused and said she would read it herself. He asked whether she understood it was her considered desire to benefit the Defendant in the fashion set out in the statutory declaration. When the statutory declaration was signed the Plaintiff, Mr Christie and Mr Anstee were present in the room. Mr Anstee was uncertain where the Defendant might have been (T520/5-25).

238. [401]

     In cross examination Mr Anstee agreed he was practising full-time in December 2012 but he was not certain how many other matters he had on at the time (T522/35-50).

239. [402]

     He was not sure that he had any conversations recently with Mr Christie but he had had a conversation recently with the Defendant. The conversation with the Defendant was about his general health (T523/20-35).

240. [403]

     Mr Anstee indicated that he was admitted to the Bar in May 1988. For a time he practised as a non practising barrister with Taylor & Scott solicitors and then went to the private Bar. He has had chambers in numerous sets of chambers around Sydney (T524/10-30).

241. [404]

     His recent conversations with the Defendant concerned a person who lives near the Defendant in Tyagarah (T525/15-30).

242. [405]

     Mr Anstee said he had received a telephone call from Ms Henderson, solicitor. Ms Henderson informed Mr Anstee she acted for the Plaintiff but Mr Anstee thought it was inappropriate to speak to her (T525/45-50).

243. [406]

     It was put to Mr Anstee that he had told Ms Henderson during their conversation that the Plaintiff had dementia so she could not give instructions. He was unsure he had said that, but he did not deny that he did (T526/5-15).

244. [407]

     Having indicated that Ms Henderson was acting for MFP he declined to speak to her (T526/35-40).

245. [408]

     Mr Anstee said that the Plaintiff was his client between 2012 and 2013 (T527/5-15).

246. [409]

     He denied that he had ever acted for the Defendant in respect of any criminal matters (T527/25-35).

247. [410]

     Mr Anstee agreed that he had been engaged in text messaging with the Defendant about the fees he might be paid if he gave evidence in the case (T533/20-40).

248. [411]

     Mr Anstee appeared to agree that he had spent a considerable amount of time in 2017 helping the Defendant in relation to the matter (T534/25-35).

249. [412]

     When he prepared a bill in relation to assisting with the proceedings he sent it to the Defendant. He did not expect to be paid as it is contingent upon his success in this case (T535/25-35). The bill was approximately $7,500 (T535/40-45).

250. [413]

     Mr Anstee agreed that in one text message to the Defendant he had expressed the view that if properly handled the Plaintiff should pay the costs of the proceedings. As far as he was concerned there was a valid statutory declaration by a competent Plaintiff and the Defendant was a beneficiary. He knew the Defendant had various injuries and medical disabilities and he hoped he would win the case (T538/25-35).

251. [414]

     The moment he had been contacted by Ms Henderson he telephoned the Defendant so that his lawyers could be informed he had been subpoenaed by the Plaintiff (T539/5-15).

252. [415]

     When asked why if he had acted for the Plaintiff he was concerned about being contacted by her lawyers, his answer was because the 2013 document benefited the Defendant (T539/25-30).

253. [416]

     Mr Anstee tried to explain his refusal to assist the Plaintiff on the basis that she was not then at the time of the phone call his client and that she had been his client for a very brief period. In addition he acknowledged that he believed the Defendant was a beneficiary under the document he prepared (T540/10-20).

254. [417]

     The first contact made in 2012 was between the Defendant and Mr Anstee. Mr Anstee drove a motor bike to which on the front was attached a sign apparently saying “Lawyer Most Matters”. The Defendant approached him seemingly on the basis that he was a fellow “biker” (T541/25-35).

255. [418]

     In 2013 the principal area of his practice was criminal law (T541/35-40).

256. [419]

     His belief in 2012 was that the Plaintiff wanted a current legal document drafted to ensure her gift to the Defendant (T547/1-5).

257. [420]

     Mr Anstee agreed that he assessed her capacity as best he could as a non medical person. He had no formal medical qualifications, but he thought it was his responsibility to ensure she was competent. He asked her background questions with and without the Defendant present. She was responsive, he thought she was formidable, she seemed to be in control of her own affairs including financial matters (T547/30-50). He agreed that he formed a general impression (T548/1-5).

258. [421]

     Mr Anstee agreed that he was not qualified to make the ultimate decision as to her capacity (T548/10-20).

259. [422]

     Mr Anstee did however decide she had the requisite capacity (T549/5-15).

260. [423]

     Mr Anstee wanted to see something from Dr Hamieri because he appreciated she was being treated by a geriatrician and a geriatric psychiatrist (T549/10-15).

261. [424]

     Although he wanted an updated report from Dr Mulholland, he knew what Dr Mulholland had told Dr Hamieri and he thought Dr Hamieri’s report would suffice (T550/5-20).

262. [425]

     Mr Anstee agreed that at the conference on 18 December the Plaintiff told him she wanted to give her Bondi Junction property to the Defendant. Although Mr Anstee realised the Defendant already had it, the Plaintiff indicated she wanted to make it certain. He was asked how much more certain it could be. Mr Anstee responded she was being treated by doctors, the Plaintiff and the Defendant wanted to clarify the position in case proceedings were taken later on (T551/5-15).

263. [426]

     The Plaintiff also indicated she wanted to change her will and Mr Anstee had not decided whether he would accept instructions to that effect. He sought advice from a Senior Counsel who expressed reservations and he never went ahead and prepared a new will (T552/5-15).

264. [427]

     When asked whether he thought there was a conflict in his role, he posed the question in response “between who?”. He was then asked did he consider there to be any conflict in relation to his preparing the statutory declaration to which he responded, that he did not know how to answer that question (T555/20-35).

265. [428]

     Mr Anstee agreed that from his notes he gleaned an understanding at the meeting with the Plaintiff and the Defendant that she had transferred her title to the Defendant for no consideration, presumably because it was a gift (T556/1-10).

266. [429]

     His instructions or retainer at the first meeting were to prepare a statutory declaration and to modify her will. Later her retainer was changed simply to prepare a statutory declaration. Mr Anstee believed it was part of his role as the responsible legal practitioner to ensure that the Plaintiff had capacity to instruct him confirming the gift (T556/20-40).

267. [430]

     When asked whose interest it was he was seeking to protect by the statutory declaration, he responded the Plaintiff. When asked why, he indicated that she wanted a current statement updating her gift to the Defendant. Mr Anstee said that he was protecting the Plaintiff’s desire to confirm that the property should go to the Defendant as beneficiary and that he, Mr Anstee, was seeking to protect both of them. When asked did he consider an issue arose as to conflict, he indicated that he had endeavoured to separate them at appropriate times so as to avoid conflict (T558/10-35).

268. [431]

     Mr Anstee thought he had telephoned Mr Christie a few days before to arrange for his attendance as witness (T559/1-10).

269. [432]

     Mr Anstee felt sorry for the Defendant but rejected he had not been independent (T560/35-50).

270. [433]

     Mr Anstee believed he had a copy of the Plaintiff’s previous will made in 2011 and he understood that that left her estate equally to her three sons. He was aware of that prior to having her sign the statutory declaration. It did cause him concern that the effect of the transaction some weeks after the making of that will transferred this property to the Defendant (T565/15-20).

271. [434]

     Mr Anstee however asked no questions about what proportion of her estate comprised the value in the Grafton Street property (T565/20-30).

272. [435]

     Mr Noble swore one affidavit dated 10 August 2017. He is a professional numismatist and he specialises in auctioning and buying and selling rare coins. He has operated his business in Sydney for some 40 years.

273. [436]

     Mr John Fisher-Pollard was a client of Mr Noble’s for many years, the two having first met in 1978.

274. [437]

     The nature of the relationship between the two was that of numismatics advisor and dealer with a client collector.

275. [438]

     After Mr Fisher-Pollard died Mr Noble said he received a telephone call from the Plaintiff in about May 2012. The conversation centred around funds which Mr Fisher-Pollard had loaned Mr Noble’s firm.

276. [439]

     Mr Noble formed the impression that the Plaintiff understood the nature of the funds retained but she wanted updated bank details for deposits. Further Mr Noble formed the impression that the Plaintiff was able to understand the arrangements. She then delivered the balance of the collection to Mr Noble for sale.

277. [440]

     In examination in chief Mr Noble said he had met the Plaintiff when she accompanied her husband from time and time at social functions (T568/45-50).

278. [441]

     Mr Noble had various conversations with the Plaintiff on those occasions and recalls her having a good sense of humour.

279. [442]

     Mr Noble recalled the Plaintiff contacting him in May 2012 and informing him that her husband had died. The Plaintiff told him she would not be continuing with the collection and he offered to assist in any way he could (T569/5-45).

280. [443]

     From time to time she would contact Mr Noble and have questions about the collection. He believed she contacted him in 2014 to inform him she was moving out of Sydney and that they were selling the Bondi apartment which he had visited (T570/5-25).

281. [444]

     At some point in 2014 the Plaintiff and the Defendant came to see Mr Noble and delivered the balance of the coin collection for the purposes of sale (T570/40-50).

282. [445]

     Mr Noble indicated that he informed the Plaintiff that any funds required by them could be paid but any funds they did not require could be added to funds already loaned to Mr Noble’s business (T570/45-50).

283. [446]

     Mr Noble in cross examination recalled that Mr John Fisher-Pollard was meticulous in keeping records and managing his affairs (T571/20-40).

284. [447]

     After Mr Fisher-Pollard’s death Mr Noble’s dealings were with the Plaintiff and the Defendant together (T572/35-40).

285. [448]

     Mr Noble acknowledged that the capital that he has effectively belongs to the Plaintiff. He would need at least six months to arrange to have the moneys paid back if required (T574/35-45).

286. [449]

     Mr Noble accepted that at any meeting he had with the Plaintiff and the Defendant, the Defendant did most of the talking and he dealt with the Defendant apart from the Plaintiff signing for the consignment of the coins (T575/5-25).

Medical evidence

1. [450]

   Only one expert medical practitioner was called. He was Dr Nadeem Bhanji whose evidence was taken by videolink from Canada. Dr Bhanji is a highly qualified clinician specialising in the area of elderly psychiatry. He has a Bachelor of Science Degree in Pharmacy and a Doctorate of Medicine Degree and further professional qualifications in the speciality of psychiatry. He has been the recipient of numerous awards and honours and has undertaken undergraduate teaching from time to time. He has also undertaken research in numerous areas including pharmacy and psychiatry and is the author of multiple publications (TB187-200).

2. [451]

   He was retained by letter of instruction on 15 December 2016. He was given a good deal of material together with some assumptions and was asked to provide a report in relation to the Plaintiff’s current mental state and further to express a view as to whether she suffered from any form of cognitive impairment during the period from 2011 to date and whether for example she had the necessary capacity and understanding at any time in or after 2011 to make a decision as to whether or not she would be willing to divest herself of her major assets in favour of one of her sons. Dr Bhanji provided a report on 24 April 2017. Dr Bhanji apart from reading the materials he was supplied saw the Plaintiff on 28 November 2016.

3. [452]

   Dr Bhanji first found in conducting the interview with her that she was a vague historian, in part he thought due to her significant cognitive defects. Having performed several tests Dr Bhanji was of the view that the Plaintiff had moderate dementia. On examination of CAT scans of her brain he thought they disclosed generalised brain atrophy with mild evidence of sub-cortical vascular disease which was consistent for patients with Altzeimers Disease. He was also of the view upon his clinical observation and the performance of memory tests that she was showing deficits in a number of areas including memory, inability to concentrate, depressed mood and overall poor functioning and at the stage where she needed help with meals and medication administration.

4. [453]

   Dr Bhanji then reviewed not only the chronological documents he was provided with but an amount of the Plaintiff’s personal correspondence. Dr Bhanji was also supplied with numerous affidavits.

5. [454]

   At the end of his analysis and consultation Dr Bhanji expressed the view that considering the Plaintiff’s background, her upbringing in England and her complete reliance on her husband for all financial matters, he was surprised that she would make a large real estate transaction in the month following her husband’s death. He expressed the view that he found no materials to suggest that she was financially savvy and someone who conducted business or real estate dealings. Dr Bhanji in particular highlighted the comment made by the Plaintiff to Dr Mulholland in 2012 to the effect that she had purchased the apartment in Bondi Junction as hers and wanted to leave it to the Defendant in her will. As Dr Bhanji points out the observation of hers that it was her asset was quite contrary to the fact.

6. [455]

   Dr Bhanji also expressed the view that her decision making was complicated as she was very vulnerable after her husband’s death. She was fearful of being lonely and this drove her to accept the Defendant’s offer to live with him. As Dr Bhanji observed her vulnerabilities were further compounded by the presence of grief over the loss of her husband as well as the presence of depression. Ultimately Dr Bhanji expressed the opinion that the Plaintiff in fact lacked capacity to make any financial decisions in the period before and after the death of her husband in 2011.

7. [456]

   In cross-examination Dr Bhanji reiterated that around 2011 following her husband’s death, the Plaintiff did not have financial capacity (T102/25-35).

8. [457]

   Dr Bhanji agreed that a decline in episodic memory might be one of the earliest signs of cognitive change (T104/40-45).

9. [458]

   Dr Bhanji thought an item of some significance was one when living in Tuross Head she made repeated telephone calls to the surgery of her doctor asking for the same information (T103/5-15).

10. [459]

    Dr Bhanji agreed that emotional trauma for example in this case being the loss of her husband may be a trigger or exacerbating feature of cognitive difficulties (T103/25-35).

11. [460]

    When asked about the Plaintiff’s capacity to swear an affidavit, Dr Bhanji indicated that people with dementia can still have days when they are lucid and clear. Not having been there on the day she swore the affidavit it was impossible for him to comment on it but certainly in the overall picture he would not rely upon her statement solely. On the day that Dr Bhanji saw the Plaintiff he would have formed the view that if asked she was not capable of swearing an affidavit on that day (T106/20-35).

12. [461]

    Dr Bhanji agreed that in theory the Plaintiff may well have sufficient cognitive ability to make financial decisions but her situation had to be looked at in the totality of events surrounding her at the time. There is always a chance that she may have been lucid (T106/35-45).

13. [462]

    Dr Bhanji said however that looking at the broader picture with the events going on around her one gets a better appreciation of the situation. In times of extreme distress especially within a couple of weeks following her husband’s cremation he expressed the view that it would be a bit of a stretch to say that she was particularly lucid on any particular day (T106/45-50; T107/1-10).

14. [463]

    Dr Bhanji thought that it would be fair to say that presently she does not have capacity to manage her finances (T107/20-25).

15. [464]

    Dr Ros Mulholland, a psychiatrist for older people, was called by the Defendant. She swore one affidavit of 10 August 2017. She is a specialist in older adult psychiatry and in that capacity she met the Plaintiff whilst an employee of the South Eastern Sydney Local Hospital District. The purpose of meeting with her was to make an assessment of her memory. Dr Mulholland observed in her affidavit that the records note the Plaintiff specifically stating that she wanted to ensure the Defendant inherited her flat in which she was living at the time of the assessment. It is also recorded that the Plaintiff was thought by Dr Mulholland to have mild cognitive impairment which can be a precursor to dementia. The loss of her husband the year before and the move to a new environment may also have had an impact on her memory.

16. [465]

    Beyond her clinical notes made in 2012 her affidavit suggested that she did not have any independent recollection of the events concerning her visit with the Plaintiff for the purposes of conducting a consultation. In her affidavit and based on her records Dr Mulholland expressed the opinion that the Plaintiff presented with mild cognitive impairment which could be a precursor to dementia. She also expressed the view that the loss of her husband the year before and a move to a new environment may also have had an impact on her memory.

17. [466]

    I should note Dr Mulholland was asked to see the Plaintiff at the request of Dr Daniel Hameiri her general practitioner in Double Bay. Dr Mulholland also had a letter from Dr Elizabeth Harper a geriatrician dated 2011.

18. [467]

    Dr Mulholland sent a letter to Dr Hameiri. She explained the Defendant gave a history of several years of gradual memory change. She had become repetitive and could lose things around the flat and she was more tearful since her husband’s death. Dr Mulholland expressed the view that she had likely mild cognitive impairment with mostly intact activities of daily living but some memory deficits. (TB 851)

19. [468]

    The previous report was from Dr Harper staff specialist in geriatric medicine. She had seen the Plaintiff on 8 December by herself. Dr Harper noted at that point that the Plaintiff had moved to Sydney to live with her son in a unit. Dr Harper had difficulty getting a history from the Plaintiff as she was crying much of the time. Dr Harper recorded that the Plaintiff’s memory was not as good as it had been but this was perhaps worse recently with all the trauma relating to her husband’s death. She did concede that sometimes her son told her that she had forgotten things. She had been driving and she was cooking. She did not feel her memory was of a significant concern. However she told Dr Harper that she had recently sold her house in Tuross Head and had moved to Sydney where she was very lonely. Otherwise Dr Harper felt that she was experiencing a normal grief reaction.

20. [469]

    Dr Mulholland was cross examined and accepted that a higher functioning individual can sometimes return higher results that don’t necessarily reflect an underlying cognitive deficient (T479/15-20).

21. [470]

    If a score were returned on an MMSE of less than 30 that might flag the need for further investigation (T479/25-35).

22. [471]

    It is acceptable to supplement the results of any test with observations made by the doctor and/or close family and friends (T479/35-45).

23. [472]

    It is a feature of patients with dementia that they often lack insight into their condition (T480/40-45).

24. [473]

    Dr Mulholland agreed that at the time she saw the Plaintiff she was taking Cymbalta for depression (T482-5/20).

25. [474]

    Dr Mulholland agreed there were some errors in her note taking in relation to the tests administered (T487/30-45).

26. [475]

    Dr Mulholland was aware that the Plaintiff had been a trained nurse and she may well have been a higher functioning individual who could confound the results of the test. That is why she recommended she attend the memory clinic for further investigation. (T489/20-30).

27. [476]

    Dr Mulholland said that the diagnosis of mild cognitive impairment versus dementia is not made simply on a cognitive screening test and that one of the things the practitioner looks for is the persons’ ability to function day to day and that information is usually taken from a family member or some one who knows them well (T496/25-35).

28. [477]

    Dr Mulholland would place significant weight on any history given by a family member (T503/25-35).

29. [478]

    Dr Humphrys swore an affidavit dated 5 May 2017. He is a rural general practitioner. He has been a general practitioner in Moruya since 1989 having graduated from the University of Adelaide in 1978.

30. [479]

    He first met the Plaintiff as a patient at the Moruya Medical Centre in 2001. He recalled her as an extrovert, a larger than life personality and very engaging socially. She had a large circle of friends.

31. [480]

    Her major illness was diabetes but there were other issues as well.

32. [481]

    Dr Humphrys said he became concerned about her cognition in November 2005. He made notes at or about that time concerning her becoming resistant to the proper medical management of her various illnesses. From about this time he noticed her cognition starting to decline. He has noticed other patients particularly elderly patients showing resistance to changes to their medical treatment or further investigations being undertaken. They become resistant to change generally.

33. [482]

    He recalled seeing a letter from Mr John Fisher-Pollard in about August 2009. He no longer has a copy of the letter but recalled that (from his notes) her husband stated he was concerned about her increasing cognitive deterioration, remembering the names of people, household tasks, difficulty shopping, medication compliance and remembering appointments.

34. [483]

    He had a specific recollection of meeting with Mr Fisher-Pollard who asked the doctor not to make a record of the consultation as he did not want his wife to find out. Mr Fisher-Pollard sought Dr Humphrys advice. Dr Humphrys destroyed the letter as he had been requested to do by Mr Fisher-Pollard.

35. [484]

    On 12 August 2009 he saw the Plaintiff and suggested to her some further investigations. She brushed this off. He asked her to return on 25 August on the pretext of reviewing her shoulder in respect of which she had complained about some pain. On that date Dr Humphrys subjected the Plaintiff to an MMSE. Although Dr Humphrys believed that she had undergone a significant change in her mental facilities she nonetheless scored 28 out of 30 on the MMSE. In Dr Humphrys’ view the MMSE can be misleading particularly in the context of high functioning and highly educated individuals. He did recall however that she could not remember the place or the day that the test was undertaken and that although he asked her to remember three objects she could not recall the detail of all of them. As a result however he commenced taking a much closer interest in her well being from time to time when he saw her.

36. [485]

    On 17 February 2010 he made a note in the records that the Plaintiff had rung the receptionist three times within a two hour period on the same day asking for the same prescription because she had forgotten that she had rung earlier.

37. [486]

    On 23 April 2010 he saw her again upon her return from an overseas cruise. He recorded that she had poor recollection of where she had been.

38. [487]

    Dr Humphrys thought the Plaintiff used a number of techniques to deflect answering questions. She would change topics and go off at a tangent if she thought her cognition was being tested.

39. [488]

    Dr Humphrys thought the Plaintiff’s health began to deteriorate probably from about May 2010. Dr Humphrys did not have anything to do with her after she left Tuross Head.

40. [489]

    Dr Humphrys accepted in cross examination that the Plaintiff was a larger than life character with a good sense of humour and if she did not want to do anything she would tell you and make a reason why. She was a person who would speak her own independent mind (T14/.30-45)

41. [490]

    When Mr Fisher-Pollard came to see Dr Humphrys, he perceived it as a request for help with a problem that Mr Fisher-Pollard was finding difficult to manage (T16/5-15).

42. [491]

    Dr Bhanji was both highly qualified and impressive as a witness. He also had the advantage of seeing the Plaintiff albeit many years after the events which are the principal focus of these proceedings. Nonetheless he had the advantage of reading materials which purported to provide contemporaneous accounts of various incidents, medical records and of course contemporaneous emails written by the Plaintiff. His ultimate opinion that the Plaintiff lacked capacity to make any financial decisions in the period before and after the death of her husband in 2011 was not in my view either seriously or effectively challenged. He made concessions when they were due. As I have said he had not only the advantage of seeing her albeit recently but assessing the contemporaneous materials and I found him to be an impressive witness whose opinions I accept entirely.

43. [492]

    Dr Mulholland on the other hand was neither asked nor was there any attempt to qualify her so that she could express an opinion about the Plaintiff’s capacity in 2011. In my view when she made her assessment in 2012 it was somewhat rushed however in fairness to her she detected sufficient cognitive deficit to warrant further investigation.

44. [493]

    She did not impress me anywhere near as much as Dr Bhanji. There are a number of reasons for that.

45. [494]

    First in my view she is not as experienced as he is. Secondly while she did see the Plaintiff relevantly in 2012 as I have said she was not asked to make any findings about the Plaintiff’s state of mind in 2011. She also impressed me when she gave her evidence as being too overly concerned with diminishing the significance of some of the events she was asked to make assumptions about and was from time to time more than mildly defensive in her responses.

46. [495]

    Her clinical notes made during her assessment in June 2012 (not May as she thought in her affidavit) are instructive. The record (TB 361) that the Plaintiff told Dr Mulholland that she wanted a letter for her solicitor so that she could alter her will to leave her current flat to her youngest son. Clearly Dr Mulholland did not appreciate at the time, no doubt because she was not told that in the October of the year before the Plaintiff had made a will leaving her estate equally to her three sons and that during the latter part of 2011 had effectively acquiesced in a series of transactions leading to her “current flat” being in fact in the name of the Defendant (her youngest son).

47. [496]

    However further during the consultation Dr Mulholland’s notes record (TB 366) that the Plaintiff told Dr Mulholland that she was living with her son and that she wanted to change her will so that the flat she was living in was left to her youngest son. This was because her other two sons already had their own properties and families and that she already helped the older two buy property. She told Dr Mulholland she was changing her will freely as it is her flat but in his name so that the other two would not take it from him. However further during the consultation Dr Mulholland recorded that the Plaintiff indicated that she wanted to be fair (TB 367) and not favour one over the other but that the Defendant was looking after her and did not have a home of his own.

48. [497]

    Again she reiterated that “we” presumably meaning the Plaintiff and her husband, had helped the other two and that the Defendant had offered to look after her properly. Dr Mulholland again simply recorded this fact and no more.

49. [498]

    Dr Mulholland’s notes certainly record that the Plaintiff appreciated that the flat was in the Defendant’s name but failed to appreciate that altering her will was unnecessary given the fact that during her lifetime she had already apparently gifted the Grafton Street property to the Defendant. Her confusion was not something Dr Mulholland appreciated or picked up.

50. [499]

    It seems to me however that leaving to one side the lay evidence to which I shall necessarily return shortly, the medical opinion expressed by Dr Bhanji in my view is soundly based and I accept it. Leaving aside the confusion displayed by the Plaintiff during her consultation with Dr Mulholland, the events of the previous year involved a flurry of activity in particular the purchase of Grafton Street and the sale of the other two properties in a context where the Plaintiff was profoundly grief stricken and where she had not previously had any involvement let alone capacity to understand or manage her financial affairs in her own interest. In the midst of this activity, she was provoked to make a will leaving her estate equally to her sons. There is more than a healthy suspicion that during 2011 she was quite confused about what was going on and more to the point to the effect of what she was undertaking with the hand of the Defendant involved at every turn. To that extent I accept Dr Bhanji’s observations and his is the preferable view.

51. [500]

    I accept that Dr Humphrys made important, relevant and contemporaneous observations of the Plaintiff. In particular Dr Humphrys was clearly so concerned about the Plaintiff that he monitored her mental state from time to time. He was impressive and indeed persuasive. I accept his evidence unequivocally.

Conclusions on the lay evidence

1. [501]

   It is appropriate before I come to a consideration of the various issues in the trial to record my impressions of and conclusions on the various lay witnesses.

2. [502]

   I accept Ms Roxburgh and Ms Calcutt’s evidence entirely so far as they are concerned, in my view they gave their evidence candidly and forthrightly.

3. [503]

   Likewise Ms Macjen. Her observations are clearly pertinent and again I accept her evidence.

4. [504]

   So far as GFP and MFP are concerned again I accept their evidence. They make pertinent observations as to their mother’s cognitive issues and my observation was that when asked to make concessions they did so readily.

5. [505]

   Necessarily all of the above witnesses were only able to provide various snapshots taken over time of their observations of the Plaintiff, her moods and her various cognitive issues. Not one of them unsurprisingly could provide a complete portrait. But together especially when juxtaposed against the medical evidence their account provides a very telling narrative of the Plaintiff in the years 2011 and following.

6. [506]

   So far as the Defendant’s witnesses are concerned each purported to give their own impressions of the Plaintiff as a result of their various interactions with her. However in my view their evidence was to my mind not as persuasive nor as candidly and forthrightly given as those witnesses called by the Plaintiff.

7. [507]

   To start, I found the Defendant to be an entirely unsatisfactory witness. He gave his evidence in a defensive and argumentative manner. Notwithstanding his lack of experience as a witness he is not unintelligent and yet notwithstanding more than the odd rebuke he persisted in answering back and/or answering in an argumentative fashion.

8. [508]

   He was I am satisfied the source of much of the information provided to medical practitioners and/or nursing staff from time to time about his mother’s mental condition despite his denials. To the point of absurdity in my view he attempted to distance himself from contemporaneous reports which could only be a reference to him and attempt to point the finger at one of his brothers with whom he obviously has some long term issues. At times I consider he gave untruthful evidence. I do not regard him as a reliable historian. On numerous occasions during the course of his evidence he attempted to downplay the Plaintiff’s emotional and mental problems no doubt fully appreciating that it would be against his interest to tell the truth. I regard certain of the hospital records where there is a reference to the “Plaintiff’s son” to be a reference to him and accurately attributing history and/or information supplied by the Defendant (TB 732, 1050-3, 1212-25, 1230).

9. [509]

   I should observe in passing that the Plaintiff appears to have entertained the idea namely that her other two sons had been assisted in some way by she and her husband such as to be able to acquire properties overseas. GFP admitted that he had received an amount of $10,000 at one point from his father to assist in the renovation of his home in Canada. MFP rejected the notion that he had received any monies towards the acquisition of any property he may own overseas.

10. [510]

    It seems to me that the idea that the Plaintiff’s other two sons had been looked after and that the Defendant had in some way or other missed out is an idea which on the evidence is very likely to have come from the Defendant. There appears to be no factual basis for the assertion and no attempt was made by the Defendant to provide any evidence for that assertion. Insofar as the Plaintiff told Dr Mulholland that that was the fact it seems to me on the cards her belief to have been sourced to the Defendant. At the very least it displays further confusion on the part of the Plaintiff, which the Defendant was no doubt happy to exploit. In my view he is the likely source of such an assertion given his bitterness over his predicament as he sees it and no doubt because his brothers have made successful lives for themselves overseas, in contrast to his.

11. [511]

    In addition, in my view he must have permitted his mother to labour under the impression that although the property was in his name it was in fact hers. If that is right it would explain why she was prepared to acquiesce in the lion’s share of the moneys produced by the sale of Tuross Head and Queens Park going into a property which was solely in his name.

12. [512]

    It was clear that the Plaintiff was encouraged to believe that there was a benefit at least in the property being put into the Defendant’s name for example the possibility of obtaining a first home owners’ grant. Although that was not tenable as a matter of law it appears to have been part of her belief as to the reasons why the property was placed in his name.

13. [513]

    The balance of the evidence called in the Defendant’s case was entirely underwhelming. By design or by default the Defendant associated himself with a motley group of persons, in Mr Mawer, Mr Anstee and Mr Christie.

14. [514]

    Mr Mawer, the conveyancer, in my view was in a hopeless position of conflict. He was in my view supremely unqualified to make any assessment of capacity of the Plaintiff and whether he purported to do so routinely or not I am satisfied at best he made the most superficial attempt to assess the Plaintiff’s capacity in this case. He saw the possibility of conflict but resolved it in his own mind in a most unsatisfactory way. His lack of diary notes especially for what he alleged was a critical meeting not only underscores his lack of professionalism but if such a meeting did take place at all I am satisfied he has largely manufactured the account of what occurred because of a belated realisation of the gravity of the situation.

15. [515]

    He knew nothing of the Plaintiff’s other assets or liabilities and was in no position to assess the prudence or otherwise of the transactions she was undertaking. In my view he failed appallingly in the discharge of any professional obligation insofar as it involved making an appropriate assessment on the question of conflict of interest. For him to say that he was concerned and “quizzed” the Plaintiff is hardly an answer. Above all else he should have refused to act if indeed he was at any time acting for the Plaintiff given the circumstances especially without her obtaining independent legal and if needs be accounting advice or obtained relevant consents in writing.

16. [516]

    In my view for all practical purposes he regarded the Defendant as his client. The Defendant was the one I am satisfied who had initiated the various transactions. He was the one who made contact with Mr Mawer in the first place as the result of the recommendation from St George Bank.

17. [517]

    Mr Mawer’s 18 years experience partly as a licensed conveyancer and partly as a paralegal left him ill-equipped in my view competently to deal with the problem he was confronted with. He was neither competent nor qualified to give the Plaintiff the independent advice she needed. He was in no position to make any assessment nor in my view did he do so notwithstanding the obvious imprudence of the transaction. He was also arguably in breach of clause 12 of the Conveyancers Licensing Regulation 2015 (NSW).

18. [518]

    The evidence of Mr Christie solicitor can be put to one side almost immediately. The evidence is that he only attended upon Mr Anstee and others for approximately five minutes and exclusively for the purposes of identifying the Plaintiff as the deponent of the statutory declaration. The suggestion that he was or indeed was capable of making any assessment as to the Plaintiff’s capacity in the short time he was there is not only bizarre but it is simply ridiculous. His examples of what he would look for in the event that he were ever charged with making an assessment of someone’s capacity were even more bizarre.

19. [519]

    Mr Anstee a former barrister, in my view was also in a position of total conflict. In practical terms again I believe he regarded the Defendant as his true client and still does. He fully appreciated the reality, namely that the whole purpose of the statutory declaration was to protect the Defendant lest there be some challenge to the transactions which took place in 2011. He made no meaningful attempt whatsoever to resolve what was an obvious conflict. Further the real issue was whether the Plaintiff had capacity in 2011. He must have appreciated that, yet none of the medical reports or evidence that he saw dealt with that issue, nor did the statutory declaration expressly and/or adequately or indeed at all.

20. [520]

    Any person competently requested to advise on such an issue would clearly advise the retention of someone like Dr Bhanji for the purpose of opining on the question of whether the Plaintiff had capacity at the relevant time, not years after the event. His responses to Ms Henderson when she attempted to engage with him were clearly indicative of who he thought his real client was. Under the pretence that the Plaintiff currently had dementia and was therefore unable to instruct her current solicitor (a view that I am satisfied he received from the Defendant) and yet although he apparently thought all along he was acting for the Plaintiff his response to a request for assistance exposes only too clearly that at all relevant times his real client in his own mind was the Defendant or at best he was wholly confused.

21. [521]

    Again his alleged attempt made at the time to check the Plaintiff’s capacity and his failure to understand the real question he was confronted with only highlights in my view his incompetence. In fairness his practice prior to him giving up his practising certificate was in the area of criminal law. Although he asserted that in his early days at the Bar he had some equity and commercial experience he certainly did not portray any of that experience in the way in which he dealt with the problem he was confronted with. Again his apparent attempt to check the Plaintiff’s capacity was superficial in the extreme. The person after all with the real interest in the statutory declaration was the Defendant.

22. [522]

    His concern in more recent days was whether the Defendant would be able to pay him for the fees he had charged to date. His appreciation that payment is contingent upon the Defendant winning the case also explains a good deal. In reality he must fully have appreciated at all times that he was there to prepare a statutory declaration so as to protect the Defendant in the event of litigation. That placed him in a position of hopeless conflict which he could neither see nor was able adequately to confront.

23. [523]

    It is clear from what I have said above that insofar as either the Defendant, Mr Mawer or for that matter Mr Anstee and to a much lesser extent Mr Christie purport to give evidence of a snapshot variously in relation to the Plaintiff’s capacity from time to time, I reject their evidence entirely in that regard. I do not do so on the basis that they were not proffered as experts. That is plain enough. It is clear to me that none of them had the capacity or the competence accurately or adequately to judge the Plaintiff’s capacity. Their evidence is of no assistance to the Defendant.

24. [524]

    On the other hand Mr Noble’s statement indicated that on the brief occasions he dealt with the Plaintiff he formed the impression that she understood the purport of their respective conversations. So much can be accepted.

25. [525]

    However Mr Noble of course had a business relationship with the Plaintiff’s husband which by all accounts he has honourably and faithfully followed. It was of course the Plaintiff’s husband with whom he negotiated the transaction, and it was of course on Mr Noble’s expert advice the valuable coin collection was put together. There is no suggestion to the contrary. Whilst I accept Mr Noble’s evidence entirely in my view it really does not assist the Defendant in any material respect whatsoever.

Conclusion

1. [526]

   Prior to her husband’s death a number of persons observed that the Plaintiff was having memory and/or cognition issues. This was first perhaps observed most importantly by her husband and then by their doctor, Dr Humphrys. It was also observed by the Defendant.

2. [527]

   The Plaintiff and her husband had enjoyed a long, happy and close relationship. Her husband took care of all financial matters. There is no evidence she had any part to play in the acquisition, sale or reorganisation of their various real estate assets. Equally there is no evidence that she ever played any role of setting up and/or monitoring of the annuities or the organisation and/or dealing with bank accounts.

3. [528]

   Her husband had also put together a share portfolio again without any obvious input from the Plaintiff. With the expert assistance of Mr James Noble the Plaintiff’s husband had become both interested in and knowledgeable about coins and put together a very substantial coin collection. Again there is no evidence the Plaintiff played any role in his hobby or the putting together of such a collection, or the negotiation of any arrangements with Mr Noble.

4. [529]

   Indeed I am satisfied that she discovered at least the detail of the value of the coin collection, perhaps the existence of the annuities and the likely details of bank account number 1444 probably for the first time just prior to her husband’s death. So much is clear from the terms of her notes (Exhibit P4) taken at her dying husband’s bedside.

5. [530]

   By all accounts the Plaintiff a former nurse could be described as a previously high functioning individual, with a feisty personality and a good sense of humour. Because of her current physical and mental state she was unable to give evidence before me and in that regard I accept Dr Bhanji’s evidence as to her current situation. Although she swore an affidavit no reliance has been placed upon it for good reason.

6. [531]

   Due to the closeness of their relationship the Plaintiff was profoundly affected by her husband’s illness. For example upon the realisation of his impending demise and admission to hospital she herself required admission to Canberra Hospital in 2011. The stress associated with her husband’s illness may well and in all probability did exacerbate her cognition and memory issues.

7. [532]

   Prior to his death there were periods when she and her husband would visit Sydney and stay from time to time with the Defendant at the Queens Park apartment and when they were perhaps not travelling they would spend the bulk of their time in Tuross Head mixing with those who obviously became their close group of friends.

8. [533]

   There is no evidence that the Defendant was a regular visitor to Tuross Head although his parents spent time with him as I have said when they visited Sydney. Their other two sons had largely, except for GFP in the period from 2001 to 2003 settled overseas. To that extent apart from visits one way or the other from time to time, telephone and email contact aside, the Plaintiff and her husband saw much less of their other two sons and their families.

9. [534]

   I am satisfied that after her husband died and for some months if not years after she had great difficulty in coping and coming to terms with her loss.

10. [535]

    The Plaintiff hated the thought of being alone and this undoubtedly provoked her to move to Sydney to live with the Defendant upon the death of her husband notwithstanding her many friends in Tuross Head. I am satisfied however that given the emotional turmoil she went through following her husband’s death she was simply not going to be happy living anywhere. But if she was to live in Australia and with a relative the Defendant was in effect her only choice.

11. [536]

    Her vulnerability at this time was real and ever present and yet to some extent she did keep up a brave front especially in the company of strangers where her customary bluster and humour would not have permitted her to display any vulnerability except for those who knew her well. With the Defendant and her very close friends and the odd medical practitioner her confusion, cognitive and memory issues and severe emotional vulnerability were obvious.

12. [537]

    I am satisfied she had never had a need nor any interest in financial matters. She was undoubtedly relieved that the Defendant was prepared to take over that burden. Moreover I am satisfied that in her emotionally vulnerable state she was prepared to go along with whatever the Defendant suggested in relation to financial matters. I do not accept that she played any meaningful role in the sale of Queens Park, Tuross Head nor the purchase of Grafton Street, nor for that matter the ultimate purchase of Tyagarah. I am satisfied that the Defendant initiated each of those transactions and the Plaintiff simply went along with them.

13. [538]

    Of course the Plaintiff was to an extent involved in those transactions, in particular in signing necessary documentation, but I do not accept that she fully understood precisely what was going on and she certainly never had anyone independently explain to her what her needs were, nor discuss the consequences of her actions and whether they were in her best interests or not. As such I am satisfied that she never made an informed choice about the various transactions.

14. [539]

    There is no evidence she understood anything about real estate values. The Defendant on the other hand had been writing copy for real estate advertisements for some years and in that context I am quite certain he not only kept his eye on the real estate market in Sydney but clearly made contacts in that area especially with real estate agents.

15. [540]

    There is no evidence that she or her husband had actively been contemplating the sale of Tuross Head or Queens Park. There is indeed no evidence that the Plaintiff herself had any strategy which involved the sale of those properties and for that matter the purchase of the Grafton Street property. I do not consider she alone would have been able to focus on her assets and her liabilities even if she knew the extent of them or to work out appropriate timing for the sale and purchase of various properties especially following her husband’s death. I am satisfied after her husband’s death she became rapidly and entirely dependent upon the Defendant as she had been upon her husband for all matters financial.

16. [541]

    In relation to the Grafton Street property I am satisfied it was the Defendant who sought it out and suggested to the Plaintiff it be purchased ultimately in his name. I am also satisfied he led the Plaintiff to believe it was still somehow hers. There is no evidence as to what other enquiries the Defendant made as to prospective properties to purchase. On the other hand, the Plaintiff certainly inspected no other property other than the Grafton Street property. I am satisfied she did not exercise any freedom of choice in relation to Grafton Street. She was simply presented in my view with a choice made by the Defendant and she went along with it.

17. [542]

    It is important to observe that the sales process for Queens Park (allegedly a property intended for the Defendant) commenced on or about 9 September 2011 a few weeks after her husband’s death.

18. [543]

    There is simply no evidence that she had any capacity to make an assessment of what her personal financial needs would be going forward or indeed what was in her best interests. In my view she had no capacity to assess the consequences of the various transactions, for example to place in the Defendant’s sole control the lion’s share of the cash produced from the sale of Queens Park and Tuross Head.

19. [544]

    In particular by reason of her aversion to going into a nursing home she had no capacity nor did she ever receive from the Defendant or anybody else, an objective analysis of what she may require by way of financial assistance if for example home care is what she ultimately wanted.

20. [545]

    As I have also said this flurry of activity in 2011 necessarily has to be seen in a context where in the midst of it all she made a will leaving her estate equally to her three sons in October of that very year. In my view that is one of the most significant features of her lack of comprehension. For her to have made a will leaving her estate equally to her three sons but at the same time engage in multiple real estate transactions placing the lion’s share of the proceeds solely in the Defendant’s name and control, rather suggests that she did not fully appreciate the consequences of her actions.

21. [546]

    It is plain and obvious that the Plaintiff was never given the benefit of any independent legal or accounting advice as to her rights or needs, prior to these various transactions. For her to continue to believe as is obvious from numerous exchanges with others that although in the Defendant’s name the property at Grafton Street or Tyagarah was somehow or other still hers shows if nothing else significant confusion about the effect of what she had done.

22. [547]

    I am satisfied that the Defendant played upon her emotions and either led her to believe whilst in his name (whether it be to secure a first home owners’ grant), it was and remained in fact hers. I am also satisfied that the Defendant knew the consequences of the transactions was to move the lion’s share of the cash from his mother’s real estate assets into his name alone and hence under his sole control, and out of hers. He never gave a moment’s thought to his mother’s present or future needs. He never troubled himself as to how she would survive if she needed increased medical care and attention. Equally on the evidence he never even promised to look after her for the rest of her life, and never offered to put anything in writing to that effect.

23. [548]

    I am satisfied that he was driven entirely by his own interests and his bitterness towards one or both of his brothers, and he was consumed by self-pity. He showed abject disinterest in his mother’s wellbeing. Instead he busied himself seeking out people to put his own plans in place and when he became nervous in 2013 about the consequences of what he had done he tried to shore up his position by organising the statutory declaration. Again I am not satisfied it was his mother’s idea at all.

24. [549]

    I am satisfied that his mother in a highly emotionally charged and confused state wanted to please the Defendant and went along with the various activities he had organised. I am satisfied the Defendant knew she had merely succumbed to his wishes and he also appreciated everything he did was for his benefit alone. He clearly took advantage of her vulnerable and confused state.

25. [550]

    The suggestion that the Defendant was merely doing what his mother wanted I consider to be quite disingenuous. He knew above all others what she was going through with her cognition and memory issues and her profound grief and yet with obscene haste he engineered the various transactions. There was no real benefit flowing to his mother in her giving him the Grafton Street property or for that matter the Tyagarah property. He had paid for nothing, she on the other had paid for everything. The purchase prices, professional fees, stamp duties and renovations to Tyagarah were all from the Plaintiff’s resources. In so far as the Defendant suggests to the contrary I do not accept his evidence.

26. [551]

    In my view in accordance with the authorities the Defendant has engaged in unconscionable conduct. The Plaintiff was subject to a special disadvantage comprised of her profound grief and deteriorating mental acuity. The Defendant knew of the existence and effect of the special disadvantage and unconscientiously took advantage of it.

27. [552]

    Further, and in the alternative, I am of the view that the above facts also support a finding of undue influence. That is, the Plaintiff’s will was so subordinated to the Defendant that the impugned transactions raise a presumption of undue influence that was not rebutted. The transactions were improvident and procured by the Defendant such that they ought to be set aside between the Plaintiff and the Defendant.

28. [553]

    In the light of my findings, I am inclined to make some of the declarations and orders sought by the Plaintiff, inter alia, in the Amended Summons dated 4 November 2016 at [13]-[21].

29. [554]

    However, I will hear submissions, if necessary on the precise declarations or orders sought.

30. [555]

    I will also hear the parties on costs if necessary.