White v Kohacek

Mr Arno Kohacek is the owner of a 25-acre property at 119 Argents Road, Wilberforce, in the Hawkesbury local government area in New South Wales, being the land in folio identifier XX/XXXX (the Property).

Mr Kohacek lived at the Property for many years together with his life partner, Mr Raymond Colley. I use the term “life partners” to describe a relationship in which they owned property together and lived together for substantially the whole of their adult lives and, at the time of the events giving rise to these proceedings, shared a strong attachment to the Property and a desire to continue living there for the rest of their lives. It is neither relevant nor necessary to make any finding about whether Mr Kohacek and Mr Colley were a couple, or whether they were friends who shared their lives together in the manner I have described, as Mr Colley suggested in cross-examination.

Mr Kohacek and Mr Colley owned the Property as joint tenants. Mr Colley’s interest in the Property passed to Mr Kohacek by right of survivorship when Mr Colley passed away on 18 March 2022 at the age of 91 years. Mr Kohacek was 81 years of age at the time of Mr Colley’s death.

These proceedings arise out of a document prepared by the first plaintiff, Mr Gary White, and signed by him and by Messrs Kohacek and Colley on or about 10 September 2019. The second plaintiff, Ms Terryll Cassidy, is also named as a party to the document, although she did not sign it. Mr White and Ms Cassidy have been in a de facto relationship for many years. They are both former real estate agents.

The document, which is entitled “Heads of Agreement”, states that it is an agreement for Mr White and Ms Cassidy to purchase a one-third share in the Property for $500,000, and states that it “is to be converted to an agreement for the sale of land between the parties (the contract) by the vendors [sic] solicitor”. The document sets out various “additions” that will be included in the contract for sale of land, including that the one-third share “is to be purchased as tenants in common between the purchasers and the vendors”, and that Mr Kohacek and Mr Colley grant to Mr White and Ms Cassidy “an irrevocable right of survivorship to the property, effective at the time of exchange of contracts, that has the same effect as if the parties were joint tenants”.

The “additions” to be included in the contract for sale of land also included a term providing for the $500,000 purchase price to be paid by Mr White and Ms Cassidy extinguishing certain debts owed by Messrs Kohacek and Colley to various solicitors (through payment or through negotiation), and a term providing that Mr White and Ms Cassidy would be responsible for making the monthly payments for the Commonwealth Bank loan secured by mortgage against the title to the Property, until such time as Mr White and Ms Cassidy were able repay the whole of the amount owing in respect of that loan out of the proceeds of sale of a property owned by Mr White at Condobolin and a property owned by Ms Cassidy at Orange.

The “additions” also included a term that Mr White and Ms Cassidy agreed to be “responsible for the general well being” of Mr Kohacek and Mr Colley and to assist with future medical appointments and ongoing health issues “as they would if the vendors were a member of their own family, including the future placement in retirement village accommodation if necessary”.

Mr White extinguished the debts owed by Messrs Kohacek and Colley to the solicitors named in the Heads of Agreement. The parties did not enter into any contract for sale of land as envisaged in the Heads of Agreement, and Messrs Kohacek and Colley did not transfer a one-third interest in the Property to Mr White and Ms Cassidy. However, Messrs Kohacek and Colley made new wills under which each of them left the whole of their estate to the other or, if the other did not survive him, to Ms Cassidy. Mr Kohacek appointed Mr White and Ms Cassidy as his attorneys under an enduring power of attorney and as his enduring guardians. Mr White and Ms Cassidy did not repay the loan secured by mortgage against the Property, but did make monthly payments to service that loan.

Mr Colley died on 18 March 2022. The relationship between Mr Kohacek on the one hand and Mr White and Ms Cassidy on the other hand broke down dramatically on 20 April 2022, following which Mr Kohacek revoked the enduring power of attorney and enduring guardianship and changed his will to remove Ms Cassidy as a beneficiary.

On 28 April 2022, Mr White applied to the New South Wales Civil and Administrative Tribunal for the appointment of a financial manager for Mr Kohacek. On 4 May 2022, Mr White made a further application to the Tribunal to review Mr Kohacek’s revocation of the enduring power of attorney. That application was determined on 30 August 2022 with the Tribunal declining to make any finding about whether the revocation was valid. On 15 February 2023, the Tribunal dismissed the application for a financial management order.

Mr White and Ms Cassidy commenced these proceedings on 3 May 2023.

Mr White and Ms Cassidy seek:

Mr Kohacek contends that the parties did not intend to create binding legal relations by entering into the Heads of Agreement. Alternatively, in the event that the Court finds that the Heads of Agreement is legally binding, Mr Kohacek’s cross-claim seeks an order setting aside the Heads of Agreement or declaring it void on the grounds of alleged unconscionability or undue influence, or pursuant to the Contracts Review Act 1980 (NSW).

Mr Kohacek’s cross-claim also included a claim for damages in the sum of $1,000,000. The multiple rounds of affidavit evidence served by Mr Kohacek prior to the final hearing of these proceedings did not include any evidence capable of supporting that claim, which was abandoned on the first day of the hearing.

For the reasons that follow, I have upheld Mr Kohacek’s contention that the Heads of Agreement is not binding and determined that the plaintiffs’ other claims for relief must be dismissed, save for their claim for moneys had and received, which I have upheld in respect of part of the total amount claimed.

The plaintiffs’ evidence in chief comprised:

In response to the plaintiffs’ evidence and in support of his cross-claim, Mr Kohacek swore an affidavit on 15 March 2024.

Mr White and Ms Cassidy each swore an affidavit on 18 April 2024 responding to Mr Kohacek’s affidavit.

Mr Kohacek then swore three further affidavits on 5 August 2024, 28 August 2024 and 12 September 2024. Mr Howard Crawford swore an affidavit on 19 August 2024 on which Mr Kohacek also relied.

Mr White swore a further affidavit on 21 October 2024 responding to Mr Kohacek’s further affidavits and to Mr Crawford’s affidavit.

Mr Kohacek then swore a further affidavit on 31 October 2024 responding to Mr White’s most recent affidavit.

Each of Mr White and Mr Kohacek gave evidence of conversations with one another said to have occurred in 2019 – four years before the commencement of the proceedings and five years before the hearing. Their detailed accounts of such conversations emerged only in the later rounds of their affidavit evidence. For the most part, Ms Cassidy did not participate in or witness those conversations. However, Ms Cassidy gave evidence of conversations that she says she had with Mr White in 2019 about his dealings with Mr Kohacek, and that evidence was broadly consistent with Mr White’s account of conversations that he says he had with Mr Kohacek.

It is necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman: [1]

The factors referred to by McLelland CJ in Eq in Watson v Foxman require witness testimony to be assessed having regard to, and placing primary emphasis on, any objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities. [2] However, witness testimony may still be of value and importance, including by providing evidence of the context in which relevant documents and events must be understood. [3]

A state of actual persuasion is required before finding any fact. As Kiefel CJ, Gageler and Jagot JJ explained in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (citations omitted): [4]

Quite apart from the inherent fallibility of their evidence of disputed conversations many years ago, each of Mr White, Ms Cassidy and Mr Kohacek was a most unsatisfactory witness.

Mr White plainly regarded himself as an advocate for the plaintiffs’ cause first, and a witness second. He swore affidavits in which he purported to give accounts of events and transactions in which Mr Kohacek was involved before Mr White even met him, based on Mr White’s review of Mr Kohacek’s documents. Even when addressing matters about which he had direct knowledge, Mr White frequently added his own argumentative commentary about those matters. Contrary to the submissions made by counsel for the plaintiffs, and despite Mr White’s heavy reliance on documents, Mr White’s affidavit evidence was not wholly consistent with the contemporaneous documentary evidence. As referred to later in these reasons, aspects of Mr White’s evidence are contradicted by the contemporaneous documents, including the terms of the Heads of Agreement. [5] Mr White did make some appropriate concessions in cross-examination, as counsel for the plaintiffs submitted, but he did so reluctantly. [6] At other times, Mr White had a tendency to make speeches supportive of the plaintiffs’ cause or to argue with the cross-examiner rather than directing himself to the substance of the question he had been asked.

Ms Cassidy was most unwell at the time of her cross-examination, which was punctuated with breaks at intervals of her choosing in order to accommodate her ill health. Under cross-examination, Ms Cassidy conducted herself as an advocate for the plaintiffs’ cause. She made assertions that she perceived as helpful to the plaintiffs’ case concerning matters about which she had no knowledge. [7] She frequently gave speeches in support of the plaintiffs’ case, which were not called for by the question she had been asked. When asked about objective matters that do not sit comfortably with the plaintiffs’ case, Ms Cassidy often sought to avoid answering the question. [8]

Counsel for the plaintiffs submitted that Mr White and Ms Cassidy “ought to be considered witnesses of truth doing their best (despite obviously being partial in their own case)”. For the reasons explained at [27]-[28] above, I do not accept the general proposition that they were witnesses of truth doing their best, and I do not accept evidence given by either of them unless it is contrary to their own interests, consistent with objective facts, corroborated by contemporaneous documents or some other reliable source, or consistent with the inherent probabilities. I do not regard either Mr White or Ms Cassidy as a reliable source for the purpose of corroborating the evidence of the other.

Mr Kohacek’s evidence suffered from many internal inconsistencies. [9] It became apparent during cross-examination that Mr Kohacek had difficulty recalling the timing of the events giving rise to these proceedings and the order in which some of those events occurred. [10] In addition, as his counsel candidly accepted in closing submissions, Mr Kohacek was often argumentative with the cross-examiner and, on occasion, made speeches rather than answering the question he had been asked. As counsel for the plaintiffs submitted, Mr Kohacek described himself as a strong-willed man. He was emotionally volatile at times during his cross-examination. Many of Mr Kohacek’s text messages to Mr White and Ms Cassidy that were tendered in these proceedings provide contemporaneous evidence of his strong feelings and emotional volatility at the time of the events giving rise to these proceedings. [11] Mr Kohacek damaged his credibility by alleging that some text messages sent from his mobile phone had been written and sent by Ms Cassidy without his knowledge or consent. That serious allegation was revealed in cross-examination to be nothing more than baseless speculation, when Mr Kohacek said that he was not making any accusation that this had occurred and it was merely something that he thought “could have happened” because he could not remember sending the particular messages and Ms Cassidy had access to his phone.

For those reasons, I do not accept Mr Kohacek’s evidence unless it is contrary to his own interests, consistent with objective facts, corroborated by contemporaneous documents or some other reliable source, or consistent with the inherent probabilities. I do not regard Mr Kohacek’s own text messages as a reliable source for the purpose of corroborating his testimony in these proceedings.

Mr Kohacek and Mr Colley were life partners who lived together for over 60 years. They acquired the 25 acre Property as joint tenants in 1979. Mr Kohacek gave evidence that they enjoyed the rural setting which enveloped and surrounded the Property. At the time of the principal events giving rise to these proceedings in 2019, Mr Kohacek was aged 78 years and Mr Colley was aged 88 years. They lived there together until Mr Colley passed away on 18 March 2022, aged 91 years. Mr Kohacek continues to live at the Property.

In about March 2011, the Commonwealth Bank registered a mortgage against the title to the Property securing a loan made to Messrs Kohacek and Colley. By this time, both gentlemen had been retired for many years and had no source of income other than their pensions. The mortgage has been described by Mr Kohacek as a reverse mortgage. It appears that he and Mr Colley drew on the loan over the years to fund various expenses, including costs incurred in connection with several legal proceedings.

Between about December 2013 and July 2016, Mr Kohacek and Mr Colley retained and instructed Mr Herbert Weller, solicitor, to commence proceedings in the District Court of New South Wales against various defendants including Tuscany Foods, and to act for them in those proceedings (the Tuscany Foods proceedings). Mr Weller retained Mr Trevor Boyd, as counsel. The Tuscany Foods proceedings were dismissed on 24 June 2016, and Mr Kohacek and Mr Colley were ordered to pay the defendants’ costs.

In July 2016, Mr Weller issued an invoice to Mr Kohacek and Mr Colley for legal fees in relation to the Tuscany Foods proceedings in the sum of $451,390.75 (including GST). A dispute developed in relation to those legal fees between Mr Kohacek and Mr Colley on the one hand and Mr Weller on the other hand.

During the period between about August 2016 and November 2017, Mr Kohacek and Mr Colley retained Mr Michael Corbett, solicitor, to file a motion in the Tuscany Foods proceedings seeking an order that Mr Weller and Mr Boyd indemnify them in respect of their costs liability to the defendants in those proceedings, and to make a complaint against Mr Weller to the Office of the NSW Legal Services Commissioner (the OLSC).

In November 2017, Mr Kohacek’s and Mr Colley’s motion in the Tuscany Foods proceedings was resolved on terms that included Mr Weller and Mr Boyd paying $240,000 to Mr Kohacek and Mr Colley.

A further dispute developed between Mr Corbett and Messrs Kohacek and Colley about the fees charged by Mr Corbett in relation to the motion in the Tuscany Foods proceedings and the complaint against Mr Weller.

Messrs Kohacek and Colley subsequently retained Mr Peter Jackson, solicitor, of Jackson & Associates, to act for them in proceedings commenced by Mr Weller to recover his outstanding legal fees. By about March 2018, Mr Jackson had ceased acting for them and rendered an invoice for fees in the amount of $47,000. A dispute then developed between Messrs Kohacek and Colley and Mr Jackson in relation to those legal fees.

It appears that Mr Corbett and Mr Jackson were also retained to pursue a claim on behalf of Mr Colley for compensation for his injuries suffered in a motor vehicle accident in 2016, and that Messrs Kohacek and Colley were dissatisfied with what they considered to be a failure by those solicitors to pursue or progress that claim.

In his affidavits sworn on 5 August 2024 and 12 September 2024, Mr Kohacek deposed that Mr Colley’s health deteriorated dramatically and that he was “very incapacitated” from shortly after the motor vehicle accident in 2016. The weight of the contemporaneous documentary evidence suggests that Mr Colley’s health declined somewhat more gradually in the years after the accident. An aged care assessment dated 30 June 2017 records that Mr Colley was attending to his own personal care needs. Mr Colley reported mild pain in his legs and arteries. He was walking with the aid of a walking stick. He had ceased driving after the accident, and needed someone to accompany him on any trips outside his home. Mr Colley did not report any change in his memory or cognition to his doctors in 2017, but Mr Kohacek maintained under cross-examination that Mr Colley was experiencing memory problems and becoming confused by this time, and that there were changes in his personality and behaviour, particularly at night. Medical records note a history of stroke in 2015, before the motor vehicle accident. Mr Kohacek ultimately accepted in cross-examination that Mr Colley’s health was bad after the car accident in June 2016, but that he became worse as time progressed. I find that Mr Colley’s health declined with his increasing age over a period of time from at least 2015 when he suffered a stroke, and that his car accident in June 2016 contributed to his health problems. Contrary to the plaintiffs’ submission, the precise state of Mr Colley’s health immediately after the accident in June 2016 is not relevant to the resolution of the issues in dispute in these proceedings, and it is not necessary to make detailed findings charting the pace of the decline in his health in the period leading up to September 2019.

Messrs Kohacek and Colley listed the Property for sale in about late 2017 or early 2018 through licensed real estate agent Mr David Lee. The asking price was $4,000,000. As referred to later in these reasons, Mr Kohacek told Mr Hahn, a solicitor with whom he conferred in April 2018, that he and Mr Colley had borrowed $350,000 to pay for their court cases and legal fees, and that they had decided to sell the Property “to fight case”.

Mr Kohacek gave evidence that Mr Lee introduced them to a prospective purchaser, Ms Xiaolin Qiu, who was also known as Kathy Qiu.

Ms Qiu was a practising solicitor and the principal of McQiu Lawyers. According to Mr Hahn’s file note of his conference with Mr Kohacek on 24 April 2018, Mr Kohacek told him at that time that he had told Ms Qiu that they were selling the Property due to the court cases.

Ms Qiu decided that she could not afford to purchase the Property.

According to Mr Kohacek’s affidavit sworn on 15 March 2024, Ms Qiu came to the Property and told him:

Mr Kohacek deposed that he and Mr Colley agreed to those terms proposed by Ms Qiu. However, Mr Kohacek also deposed that their agreement to leave the Property to Ms Qiu in their wills was in consideration for Ms Qiu performing legal work for them without charge.

Under cross-examination, Mr Kohacek initially adhered to his version of events in which Ms Qiu asked to be made a beneficiary under Mr Colley and Mr Kohacek’s wills. However, Mr Kohacek ultimately accepted that it was he who had proposed that he and Mr Colley should provide for Ms Qiu in their wills.

On 16 April 2018, Mr Kohacek held the first of several consultations with Mr Hahn, a solicitor at Shaddicks Lawyers, with a view to making a new will under which the principal beneficiary would be Mr Colley, or Ms Qiu in the event that Mr Colley predeceased Mr Kohacek. According to Mr Hahn’s file note of Mr Kohacek’s instructions given at that first conference, the Property was the only significant asset that he and Mr Colley owned and the Commonwealth Bank mortgage was their only liability. They had no superannuation. The aged pension was their only source of income. They had no contact with any living member of their families.

Mr Kohacek instructed Mr Hahn that the mortgage had been taken out in order to fund the cost of litigation arising out of a dispute with the Hawkesbury City Council concerning the smoke and smell emanating from the Tuscany Foods factory near the Property. Mr Weller had been acting for Mr Kohacek and Mr Colley in those proceedings, but they had become unhappy with him and terminated his services some years ago. They had then engaged Mr Jackson, but they had also become unhappy with his services. Mr Kohacek instructed Mr Hahn that he and Mr Colley had become friendly with a solicitor Ms Xiaolin Qiu who would continue the case for them at no charge. They had first met Ms Qiu as a potential purchaser of the Property when it was listed for sale, but they had subsequently taken the Property off the market.

Mr Hahn’s file note records Mr Kohacek’s instructions about the terms of his current will and his wish to prepare a new will. The file note states:

Mr Hahn’s file note then records Mr Kohacek’s instructions that Mr Colley also wanted to do a new will on mirror terms – that is, leaving everything to Mr Kohacek, or to Ms Qiu (or her daughters) in the event that Mr Kohacek predeceased Mr Colley.

Mr Hahn noted that Mr Colley’s instructions were to be confirmed. The file note records that he advised Mr Kohacek to be “very mindful of who they want as the substitute beneficiaries” and “reaffirmed my scepticism of XQ’s motives”.

On 17 April 2018, Mr Hahn had a further conference with Mr Kohacek by telephone. Mr Hahn’s file note of that conference records that Mr Kohacek confirmed that he and Mr Colley wanted to proceed with new wills, and that Mr Colley was to speak with Mr Hahn first. The file also records that Mr Kohacek and Mr Colley had agreed between themselves that they should not sell an interest in the Property to Ms Qiu as it will affect their pension, and that they had spoken with Ms Qiu about this and “she agrees with my advice”. Ms Qiu had proposed that she make a loan to Mr Kohacek and Mr Colley to pay out the Commonwealth Bank mortgage, and that Ms Qiu’s loan would be secured by a charge against the Property which would be the subject of a caveat. Mr Kohacek wanted to meet with Mr Hahn to discuss this, together with Mr Colley and Ms Qiu.

Mr Hahn had a further conference with Mr Kohacek on 24 April 2018. According to Mr Hahn’s file note of that conference, Mr Kohacek provided a detailed history of the proceedings to which I have referred at [34]-[40] above, the various solicitors that Mr Kohacek and Mr Colley had engaged to represent them in connection with those proceedings, their dissatisfaction with those solicitors, and the disputes concerning their fees. Mr Hahn’s file note then reads:

Mr Hahn’s file note of the conference concludes:

In cross-examination, Mr Kohacek disputed the accuracy of certain aspects of Mr Hahn’s file notes. I reject that evidence. It is inherently probable that Mr Hahn took care to take a detailed note of Mr Kohacek’s instructions at the time of the conferences, particularly in circumstances where he was so troubled by those instructions that he refused to follow them at the conclusion of the third conference. I therefore regard those file notes as reliable evidence of Mr Kohacek’s instructions to Mr Hahn. It is inherently probable that those instructions reflected Mr Kohacek’s recollection and understanding of his conversations with Ms Qiu which took place a short time before his conferences with Mr Hahn. Mr Kohacek’s evidence in cross-examination is inherently unreliable due to the passage of six years since the relevant conversations with Ms Qiu, and the likelihood that his memory of those conversations has been consciously or subconsciously overlaid by his adverse perception of Ms Qiu resulting from the dispute that developed in September 2019 concerning McQiu Lawyers’ legal fees, as referred to later in these reasons.

Mr Kohacek disregarded Mr Hahn’s concerns and engaged Mr John Mann, solicitor, of Turner Freeman, to prepare wills for himself and Mr Colley in substantially the same terms that Mr Hahn had declined to prepare. Those new wills were executed on 8 May 2018 and witnessed by Mr Mann. Each of Messrs Kohacek and Colley gave the whole of his estate to the other or, in the event that the other did not survive him, to Ms Qiu.

On 18 May 2018, Messrs Kohacek and Colley entered into two costs agreements with McQiu Lawyers in relation to their retainer of that firm to act for them: (1) in proceedings that Mr Weller had filed against them in the District Court suing for his fees; and (2) in relation to professional fees charged by Mr Corbett. Mr Corbett had served a bill of costs on Mr Kohacek and Mr Colley on 11 May 2018 in the amount of approximately $56,500. Each of the costs agreements that Messrs Kohacek and Colley signed with McQiu Lawyers on 18 May 2018 provided that the firm would charge for its services at the hourly rates before GST of $395 for Ms Qiu as the principal solicitor, and $350 per hour for the solicitor Ms Gayle Li. Each costs agreement required payment of funds into trust prior to the commencement of work. There is no suggestion in the terms of the costs agreements that the work was to be carried out free of charge.

On or about 25 June 2018, North Shore Chambers Pty Ltd trading as McQiu Lawyers lodged a caveat against the title to the Property, claiming an equitable interest in the Property “being equal to the amount of legal fees accrued and owing” by virtue of the costs agreements dated 18 May 2018. Those agreements contain no provision conferring a charge or any other interest in the Property on McQiu Lawyers.

On 22 July 2018, Messrs Kohacek and Colley entered into a further costs agreement in relation to the retainer of McQiu Lawyers to act for them in Supreme Court proceeding 2018/201065, which was an application by Mr Corbett for assessment of his solicitor/client costs in acting for Messrs Kohacek and Colley in the proceedings brought against them by Mr Weller. [12] That costs agreement contained the following clause:

In October 2018, Messrs Kohacek and Colley each amended their wills to specifically exclude certain relatives from receiving any benefit, notwithstanding Mr Mann’s advice that it was not necessary to do so. Those amended wills were also prepared by Mr Mann’s firm, Turner Freeman.

The proposal for Ms Qiu to purchase an interest in the Property appears to have been revived at some time after April 2018. [13] Mr Kohacek gave evidence that, after offering to purchase a one-third share of the Property for one third of the market price, Ms Qiu asked him to obtain a valuation which she told him she needed to be “as low as possible for stamp duty purposes”.

On 8 January 2019, Ms Lynette Savage, a certified practising valuer, issued a document entitled “Valuation Certificate – Stamp Duty Purposes”. The document stated:

The “Limiting Conditions and Liabilities” set out in the valuation certificate included the following:

It is common ground that the date “8th January 2018” is an error, and that the certificate was in fact issued on 8 January 2019.

The valuation certificate records a brief description of the Property, its zoning, its bushfire and flood affectation, and the impact of noise from the factory on the land adjoining the rear boundary of the Property.

Under the heading “Sales Evidence”, the valuation certificate contains a list of three property sales in January, February and August 2018. None of those three properties is located in Wilberforce. The certificate contains no statement about whether, or to what extent, Ms Savage considered those three properties to be comparable to the Property, and, if so, why. Nor does the certificate explain whether any such comparisons informed Ms Savage’s valuation of the Property and, if so, how and why. The certificate contains no indication that Ms Savage inspected the Property for the purpose of the valuation. For those reasons, I do not accept the valuation certificate as evidence of the actual market value of the Property as at January 2019, or at any other time relevant to these proceedings.

In his affidavit sworn on 5 August 2024, Mr Kohacek deposed that Ms Qiu told him when the valuation certificate was received that, for a one-third interest in the Property, she would pay $500,000 and a further sum of $666,000 in cash. Under cross-examination, Mr Kohacek gave evidence that it had been agreed that, in addition to paying a sum of $500,000 to be stipulated as the purchase price in a contract for the sale of the one-third interest, Ms Qiu would discharge the mortgage in favour of the Commonwealth Bank, discharge the debts owed by Messrs Kohacek and Coley to the various solicitors who had been acting for them, and pay something else which Mr Kohacek could not recall, in addition to acting for Mr Kohacek and Mr Colley for free. Mr Kohacek said that “it came to 1 million and something”.

Mr Kohacek’s evidence is inconsistent with a handwritten note that he sent to Mr Mann on 17 January 2019, together with a copy of the valuation certificate. The note stated (errors in original):

It appears that Turner Freeman understood the $350,000 to be paid to the Commonwealth Bank and the $150,000 to be paid to the former solicitors for Messrs Kohacek and Colley referred to in the note as comprising the whole of the consideration payable by Ms Qiu for a one third interest in the Property. Turner Freeman prepared a draft contract for the sale of that interest to Ms Qiu providing for a purchase price of $500,000 to be paid by equal monthly instalments of $2,000.

Ms Julie Gosden, a paralegal assisting Mr Mann at Turner Freeman, emailed the draft contract to Ms Qiu on 20 March 2019. Ms Qiu replied by email on 25 March 2019, declining to sign the contract “as i strongly believe it is SUCH a unfair contract and will be placed me into a high risk”. As best I can understand Ms Qiu’s email, which is written in poor English, she considered the contract to be unfair because she had understood that the $500,000 purchase price was to be paid by Ms Qiu discharging the debts that Messrs Kohacek and Colley then owed to various solicitors, and paying $2,000 monthly to the Commonwealth Bank to be credited against the amount owing under the mortgage secured against the Property. Ms Qiu objected to the contract providing for the payment of a $500,000 purchase price directly to the vendors in the amount of $2,000 per month.

It is not necessary for the determination of the issues in dispute in these proceedings to make findings about the purchase price and payment mechanisms that Mr Kohacek and Ms Qiu had discussed before Turner Freeman prepared the draft contract. According to Mr Kohacek’s evidence, the proposal for Ms Qiu to purchase an interest in the Property was abandoned in March 2019 when Ms Qiu objected to the terms of that draft contract. I accept that evidence, which is consistent with the absence of any contemporaneous documentary evidence suggesting that negotiations continued after Ms Qiu objected to the terms of the draft contract, and which is also consistent with correspondence between Mr White and each of Mr Mann and McQiu Lawyers. Mr White initiated that correspondence in the course of gathering information for the purpose of the complaint that he later lodged against McQiu Lawyers with the OLSC on behalf of Messrs Kohacek and Colley. Mr White relied on that correspondence in his various affidavits sworn in these proceedings.

After March 2019, McQiu Lawyers continued to provide legal services to Messrs Kohacek and Colley in relation to the matters described in their costs agreements until Mr Kohacek fell into dispute with them in early September 2019, as referred to later in these reasons.

Mr Kohacek and Mr White have given very different accounts of their first contact with one another in April 2019, and of their discussions in the period leading up to the execution of the Heads of Agreement on 10 September 2019.

In his first affidavit sworn on 3 May 2023, Mr White gave evidence that Mr Kohacek had contacted him in April 2019 after hearing that Mr White had made a complaint about Mr Weller, with whom Messrs Kohacek and Colley (represented by McQiu Lawyers) were then engaged in an ongoing legal costs dispute. Mr White deposed that he offered to help Messrs Kohacek and Colley, as he lived very close to them, and a friendship was formed.

In his 3 May 2023 affidavit, Mr White did not give any account of his interactions with Messrs Kohacek and Colley in the period after April 2019 through which he formed what he described as a friendship with them. That account emerged for the first time in Mr White’s second affidavit sworn on 15 December 2023, together with a slightly different account of his initial conversation with Mr Kohacek in April 2019. In his second affidavit, Mr White deposed that he declined to provide any details of his dispute with Mr Weller to Mr Kohacek during their initial conversation in April 2019, but agreed to speak to Mr Kohacek’s solicitor. Mr White then received a telephone call from Ms Li of McQiu Lawyers and answered her questions about his dealings with Mr Weller.

Mr White deposed that, after his first telephone call with Mr Kohacek in April 2019, Mr Kohacek called him once or twice a week to discuss his dispute with Mr Weller and update Mr White about the progress of that dispute. Mr White deposed that they developed a friendship through these telephone conversations, especially once they realised that they lived quite close to one another. As that relationship developed, they began to speak with one another almost every day, and their conversations shifted from Mr Kohacek’s dispute with Mr Weller to his other disputes, including his dispute with the Hawkesbury City Council and Tuscany Foods, and his dispute with Mr Corbett concerning his fees.

According to Mr White’s 15 December 2023 affidavit, he visited the Property in about late June or early July 2019, at Mr Kohacek’s invitation, to inspect water pollution that Mr Kohacek considered to be emanating from Tuscany Foods’ factory and to hear the noise emanating from the factory. This was Mr White’s first contact with Mr Colley. They discussed the disputes with the Council and with Mr Corbett.

Mr White deposed in his 15 December 2023 affidavit that, as his relationship with Mr Kohacek and Mr Colley developed, they began to talk to Mr White about their arrangements with McQiu Lawyers. According to Mr White, Mr Kohacek told him in about August 2019 that he and Mr Colley had entered into an agreement with Ms Qiu for her to purchase the Property on terms that she would pay their legal debts in return for the immediate transfer of a one-third interest in the Property, and that the whole of the Property would pass to her under their wills. Mr White deposed that Mr Kohacek told him that he and Mr Colley just wanted to live at the Property for the remainder of their lives without having to worry about their outstanding legal debts. In subsequent conversations, Mr Kohacek told him that McQiu Lawyers were suing Mr Weller, Mr Corbett and Mr Jackson on behalf of himself and Mr Colley. In another conversation in about early August 2019, Mr Kohacek described Ms Qiu as a “saviour” because she had agreed to pay their legal debts and the Commonwealth Bank mortgage in return for a one-third interest in the Property now and the remainder after their death, which meant that they could live “care-free” in the Property for the rest of their lives.

Mr White then deposed that he had a conversation with Mr Kohacek in about August or early September 2019 in which Mr Kohacek told him that Ms Qiu had been unable to obtain finance to pay his and Mr Colley’s legal debts in order to purchase an interest in the Property, and that she had told Mr Kohacek that she could not therefore proceed to purchase that interest. Mr White deposed that he observed that the relationship between Messrs Kohacek and Colley and Ms Qiu deteriorated “almost overnight”.

According to Mr White, Mr Kohacek telephoned him on about 3 September 2019 and said that he and Mr Colley wanted Mr White to come and meet them at the Property because they had an exciting business opportunity for him. Mr White asked Mr Kohacek what the opportunity was about. Mr Kohacek then asked him if he would be interested in buying the Property on similar terms that he and Mr Colley had offered to Ms Qiu so they could remain living in their home for the rest of their lives. Mr White answered: “potentially”. Mr Kohacek then said they should meet to discuss this further.

Mr White gave evidence that he met with Messrs Kohacek and Colley at the Property on the following day, being 4 September 2019. In his affidavit sworn on 15 December 2023, Mr White gave the following account of the gist of the conversation that he says he recalls having with Messrs Kohacek and Colley on that occasion:

This account is far more detailed than Mr White’s evidence in his first affidavit sworn on 8 May 2023, in which Mr White deposed only that Mr Kohacek and Mr Colley had “offered me a similar agreement as had been offered to Ms Qiu” in or about early September 2019. In his first affidavit, Mr White described the agreement as being that he would purchase a one-third interest in the Property “with a right to survivorship” for approximately $500,000, in exchange for which he was to pay out Mr Colley and Mr Kohacek’s legal debts and the Commonwealth Bank mortgage.

In his 15 December 2023 affidavit, Mr White deposed that it was clear to him from his conversations with Messrs Kohacek and Colley, and from the documents that they had provided to him, that they wanted a life estate in the Property with the security of having Mr White attend to their outstanding legal debts and the Commonwealth Bank mortgage, pay part of the rates and insurances, and assist with the upkeep of the Property, and, in return, they wanted Mr White to receive a third of the Property immediately and the whole of the Property when they passed away. Mr White referred to this in his 15 December 2023 affidavit as “the Common Intention”.

Mr White deposed that he prepared the Heads of Agreement in the days following his meeting with Messrs Kohacek and Colley on 4 September 2019, and that he had daily telephone conversations with them about the terms of the agreement. Mr White deposed that, during those conversations, Mr Kohacek requested a further term for a cash payment of $5,000 as a non-refundable deposit.

In her affidavit sworn on 22 December 2023, Ms Cassidy gave evidence of conversations that she had with Mr White during the period between April and September 2019 in which Mr White relayed to her an account of his conversations with Mr Kohacek in terms broadly consistent with Mr White’s affidavit evidence referred to at [76]-[87] above.

In particular, Ms Cassidy deposed that she had a conversation with Mr White in about August 2019 in which he informed her that Mr Kohacek had told him that he and Mr Colley had entered into an agreement with Ms Qiu under which she was to take care of their debts in return for a one-third share of the Property now, with the whole of the Property passing to Ms Qiu after Messrs Kohacek and Colley died. According to Ms Cassidy, Mr White told her that Mr Kohacek was angry because Ms Qiu could not get finance to proceed with that agreement.

Ms Cassidy also deposed that she had a conversation with Mr White in early September 2019 in which he informed her that Messrs Kohacek and Colley had asked him to buy the Property instead of Ms Qiu because their relationship with her had “gone sour” and they did not want to proceed with Ms Qiu anymore. According to Ms Cassidy’s evidence, Mr White told her that Messrs Kohacek and Colley wanted a life estate in the Property without having to worry about their outstanding debts, and it was proposed that he and Ms Cassidy would pay those debts, help with the upkeep of the Property, and look after Messrs Kohacek and Colley. In return, they would receive one third of the Property now and the remainder after Messrs Kohacek and Colley passed away. Mr White said that they had told him that they just wanted to be able to live at the Property until they pass away. Ms Cassidy asked Mr White how much the Property was worth, and he told her that Mr Kohacek had given him a recent valuation of $1.5 million. Ms Cassidy told Mr White that she thought “the offer was OK but we should get something in writing”. Mr White told her that Mr Kohacek had asked him to put something in writing, and that he had agreed to do so.

According to Ms Cassidy’s evidence, she overheard Mr White discussing the terms of the proposed agreement with Messrs Kohacek and Colley over the telephone in the subsequent days.

By contrast to Mr White’s account which I have detailed at [76]-[90], in his affidavits sworn on 15 March 2024 and 5 August 2024, Mr Kohacek gave evidence that he first telephoned Mr White at his real estate business in April 2019, soon after his discussions with Ms Qiu about her potential purchase of an interest in the Property had come to an end. Mr Kohacek deposed that he told Mr White during that first conversation that the proposed purchase by Ms Qiu was not proceeding. Mr Kohacek deposed that he told Mr White that he and Mr Colley were looking to sell the Property and they wanted to put it on the market. During the course of that conversation, Mr White told Mr Kohacek that he would meet with Ms Qiu. After meeting with Ms Qiu, Mr White told Mr Kohacek that she wanted to have the Property without doing anything for Messrs Kohacek and Colley, and that they should “[g]et rid of her”. Mr Kohacek said to Mr White: “I’m worried sick and caring for Ray makes everything very difficult. I’m exhausted and it is all too much for me.”

Mr Kohacek did not give any evidence in his 15 March 2024 affidavit about any further conversations or dealings with Mr White during the period between this first contact in April 2019 and late August 2019 or early September 2019. He did not respond directly to any part of Mr White’s affidavits sworn on 8 May 2023 and 15 December 2023, including Mr White’s account of the conversations that Mr White says occurred, and the friendship that Mr White says developed between himself and Messrs Kohacek and Colley, during that period. In his 5 August 2024 affidavit, Mr Kohacek did respond to Mr White’s account, denying that he had regular conversations with Mr White after their initial contact in April 2019 about Mr Kohacek’s dispute with Mr Weller and other disputes, including his dispute with the Hawkesbury City Council and Tuscany Foods. [14] Mr Kohacek deposed that the Tuscany Foods litigation had come to an end in June 2016. Mr Kohacek also denied inviting Mr White to visit the Property in late June or early July 2019. [15] According to Mr Kohacek’s evidence, Mr White initiated this visit by saying to Mr Kohacek: “I would like to see the property. I will fight this for you. There might be a lucrative lawsuit for you against the Council.”

In his 5 August 2024 affidavit, Mr Kohacek acknowledged that he told Mr White in late August or early September 2019 about Ms Qiu’s inability to raise finance to proceed with her proposed acquisition of an interest in the Property, [16] but maintained that this had occurred and that the proposal had been abandoned before he first spoke with Mr White in April 2019.

In his 15 March 2024 affidavit, Mr Kohacek gave evidence that he gave Mr White his documents, including those relating to Ms Qiu, at Mr White’s request in late August or early September 2019. Mr White then said to him: “I am prepared to take over what McQiu [sic] said she would do, with the same arrangements. I will take care of you and everything and simply insert myself into McQiu’s [sic] position. But I will need you to sign a document that allows me to protect you.” Mr Kohacek said to Mr White: “I’m worried sick and caring for Ray makes everything very difficult. I’m exhausted and it is all too much for me.” Mr White replied: “Don’t worry. I will draw up an agreement and you don’t have to worry. I will also pay half of the rates and half of the insurance and all maintenance. I will take care of everything. You can live here in peace for the rest of your lives.”

In his 5 August 2024 affidavit, Mr Kohacek denied contacting Mr White on about 3 September 2019 inviting him to discuss a “business opportunity”, and denied that there was any meeting or discussion at the Property of the kind described by Mr White on 4 September 2019. [17] Mr Kohacek maintained that it was Mr White who made an offer to him and Mr Colley in late August or early September 2019, and gave a more detailed account of that conversation compared to the account given in his 15 March 2024 affidavit. In his 5 August 2024 affidavit, Mr Kohacek deposed that Mr White said to him and to Mr Colley: “To fix your problem, I will take over to get rid of Kathy Qiu and I will sue her for damages for the stress she has caused you and I will make a complaint to the Office of the Legal Service [sic] Commissioner (OLSC). Also, Weller will come back for his fees which are over $400,000. I will take care of that.” Mr Kohacek denied that he and Mr Colley engaged in any further discussion about Mr White’s offer before Mr White arrived at the Property on 10 September 2019 and presented them with the Heads of Agreement, saying “I need this signed to get rid of Kathy Qiu”.

In his affidavit sworn on 18 April 2024 responding to Mr Kohacek’s first affidavit, Mr White maintained that Mr Kohacek contacted him in April 2019 about his dispute with Mr Weller and in connection with the sale of the Property. He denied having a conversation with Mr Kohacek about Ms Qiu in the terms referred to at [91] above. Mr White deposed that he first learned about the proposal for Ms Qiu to purchase an interest in the Property in August 2019.

In his affidavit sworn on 18 April 2024, Mr White denied having a conversation with Mr Kohacek in the terms referred to at [94] above, and maintained that Mr Kohacek and Mr Colley had made the offer to him to purchase an interest in the Property on the terms described in his 15 December 2023 affidavit. [18]

In his affidavit sworn on 12 September 2024 responding to Mr White’s 18 April 2024 affidavit, Mr Kohacek reiterated that Mr White had made the offer to him and to Mr Colley. Mr Kohacek deposed that Mr White had said words to the effect of: “Leave it to me I will get rid of Kathy Mcqui [sic]. I want the same deal as she got.” Mr White denied saying words to that effect in his affidavit sworn on 21 October 2024.

Under cross-examination, Mr White adhered to his evidence that Mr Kohacek had not asked him to sell the Property during their initial conversation in April 2019, or at any other time.

Mr White confirmed under cross-examination that he had first become aware of the arrangement that Messrs Kohacek and Colley had proposed to enter into in respect of the Property with Ms Qiu in late August or early September 2019. Mr White took the view that Ms Qiu had been exploiting them in proposing to enter into that arrangement because she was a solicitor who had put herself in a position to acquire property from her clients under whose wills she was named as a beneficiary, at the same time as causing them to enter into costs agreements to pay legal fees that they could not afford. He considered that this was contrary to the practice rules governing solicitors. Mr White maintained under cross-examination that he did not propose to Mr Kohacek that he enter into an arrangement with them on substantially the same basis as what they had been willing to agree with Ms Qiu, and that it was Mr Kohacek who made that offer to him.

Under cross-examination, Mr White adhered to his evidence that he had discussions with Messrs Kohacek and Colley about the terms of the Heads of Agreement every day while Mr White was drafting it.

Under cross-examination, Mr Kohacek maintained that he contacted Mr White in April 2019 with a view to engaging him as a selling agent for the Property, and not to discuss Mr White’s experience with Mr Weller with whom Messrs Kohacek and Colley had an ongoing dispute about legal fees at that time.

Mr Kohacek gave inconsistent evidence under cross-examination about when he first told Mr White about his discussions with Ms Qiu concerning a proposed sale of a one-third interest in the Property to her, when those negotiations were abandoned, and when Mr Kohacek first told Mr White that Ms Qiu was no longer proceeding with the purchase of an interest in the Property. I place little weight on this inconsistent evidence, which illustrates the difficulty that Mr Kohacek experienced in recalling the precise timing of events. [19] I place weight on the contemporaneous documentary evidence which shows that the proposed arrangement for Ms Qiu to acquire an interest in the Property had been abandoned before Mr Kohacek first spoke with Mr White in April 2019. [20]

Mr Kohacek gave evidence under cross-examination that he became dissatisfied with the legal services being provided by McQiu Lawyers after receiving a Certificate of Determination of Costs in the amount of $50,000 on 4 September 2019. I infer that this related to Mr Corbett’s cost assessment proceedings referred to at [61] above. Mr Kohacek considered that Ms Qiu and Ms Li had not followed his instructions, and had not done their job properly, in relation to the costs assessment. On 9 September 2019, Mr Kohacek told Ms Qiu that “the deal is off”. As referred to at [158]-[159] below, Messrs Kohacek and Colley gave instructions to Mr Mann just days later to prepare new wills under which Ms Qiu was no longer a beneficiary.

Under cross-examination, Mr Kohacek denied that he had proposed to Mr White an arrangement on the same terms that he and Mr Colley had been prepared to enter into with Ms Qiu. Mr Kohacek maintained that it was Mr White who had made the offer to them to “accept the same deal”. Mr Kohacek maintained his denial that he had several conversations with Mr White about the terms of the Heads of Agreement in the days before it was signed on 10 September 2019, and insisted that Mr White had simply presented the Heads of Agreement document for signing on 10 September 2019 with no prior discussion about its terms.

I find that the purpose of Mr Kohacek’s initial telephone call to Mr White in April 2019 was to discuss the complaint that Mr White had made against Mr Weller, in the context of the ongoing dispute between Messrs Kohacek and Colley and Mr Weller in relation to Mr Weller’s legal fees, and that the substance of that initial conversation between Mr White and Mr Kohacek was about Mr Weller. I accept Mr White’s evidence to that effect, and his evidence that he offered to speak with Mr Kohacek’s solicitors about that matter and that he subsequently did speak to Ms Li. [21] That aspect of Mr White’s evidence is corroborated by a letter that McQiu Lawyers sent to Mr White in October 2019 describing the work that they had done for Messrs Kohacek and Colley, which included corresponding with Mr White at the request of Messrs Kohacek and Colley. I reject Mr Kohacek’s evidence that he made contact with Mr White in his capacity as a real estate agent because he and Mr Colley wanted to put the Property back on the market for sale. [22] That is inherently improbable in circumstances where they wanted to continue living at the Property for the rest of their lives, they had first advertised the Property for sale in late 2017 or early 2018 because they needed funds to pay the costs they had been ordered to pay in the Tuscany Foods proceedings and the fees that they owed to various solicitors, [23] and they had subsequently changed their strategy to having Ms Qiu represent them in contesting those costs and legal fees on Mr Kohacek’s understanding (contrary to the costs agreements that he and Mr Colley had signed) that McQiu Lawyers were acting for them free of charge on the basis that Ms Qiu was the beneficiary under their wills. [24] I also reject Mr Kohacek’s evidence that he told Mr White during that initial conversation about the arrangement that he and Mr Colley had been ready to enter into with Ms Qiu for her to purchase a one-third interest in the Property. That arrangement had come to an end in about March 2019, [25] and it is inherently improbable that Mr Kohacek would have disclosed that history to Mr White, who was a stranger to Mr Kohacek at the time of this conversation. It is likely that Mr Kohacek remembers Ms Qiu being mentioned during this conversation, but has confused what was said on that occasion with things that were said during later conversations. [26] It is also improbable that Mr Kohacek disclosed to Mr White in his very first conversation with him that he was exhausted and struggling with his care responsibilities for Mr Colley. Again, it is likely that Mr Kohacek is confusing this initial conversation with a later conversation. [27]

I find that Mr White and Mr Kohacek had further conversations after April 2019 and that Mr White visited Messrs Kohacek and Colley at the Property in about June or July 2019. I do not find it necessary to make any finding about the frequency of their conversations, or about whether Mr White visited the Property by his own initiative or at Mr Kohacek’s invitation. I reject as inherently improbable Mr Kohacek’s evidence that he did not have regular discussions with Mr White after April 2019. Had they not had some form of regular contact after April 2019, there would have been no occasion for them to be communicating with one another in about August or early September 2019 when it is common ground that they had a discussion about the arrangement that Messrs Kohacek and Colley had been proposing to enter into with Ms Qiu for her to acquire an interest in the Property. [28]

Dissatisfaction with Mr Weller was something Mr White and Mr Kohacek had in common. It is inherently probable that Mr Weller was one subject of their ongoing discussions, and I so find. This likely led to some discussion about the Tuscany Foods proceedings in which Mr Weller had acted for Messrs Kohacek and Colley, and in relation to which he had rendered the fees they were disputing. Mr White was aware from his initial conversation with Mr Kohacek in April 2019, and from his resulting conversation with Ms Li, that McQiu Lawyers were acting for Messrs Kohacek and Colley in disputing Mr Weller’s fees. I accept as inherently probable Mr White’s evidence that he and Mr Kohacek had some discussions about McQiu Lawyers in relation to that dispute and in relation to other disputes about legal fees rendered to Messrs Kohacek and Colley by Mr Corbett and Mr Jackson. [29] It is likely that a rapport developed between Mr White and Mr Kohacek during the course of these ongoing discussions, and I so find.

As I have already mentioned, it is common ground between Mr White and Mr Kohacek that they had a conversation in about August or early September 2019 in which Mr Kohacek told Mr White that Ms Qiu had been unable to raise finance in order to proceed with a proposal for her to acquire an interest in the Property. [30]

According to Mr White’s evidence, this had been preceded by an earlier conversation in August 2019 in which Mr Kohacek told him that he and Mr Colley had entered into an agreement with Ms Qiu for her to purchase the Property on terms that she would pay their legal debts in return for the immediate transfer of a one-third interest in the Property and that their interests in the Property would pass to Ms Qiu when they both died. According to Mr White’s evidence, Mr Kohacek described Ms Qiu as their “saviour” and told him that he and Mr Colley just wanted to live at the Property for the rest of their lives without having to worry about their outstanding legal debts. [31]

I reject as inherently improbable Mr White’s evidence that Mr Kohacek had told him those things in an earlier conversation in August 2019. The proposal for Ms Qiu to acquire an interest in the Property had been abandoned in March 2019, as I have found at [73] above. I find that, in the course of their ongoing discussions, Mr Kohacek told Mr White during one conversation in August or early September 2019 that he and Mr Colley had proposed to enter into an agreement with Ms Qiu for her to purchase the Property on terms that she would pay their legal debts in return for the immediate transfer of a one-third interest in the Property and that their interests in the Property would pass to Ms Qiu when they both died, but Ms Qiu had been unable to raise finance to proceed. At the time of this conversation, Mr Kohacek believed that Ms Qiu was acting for them free of charge in challenging the costs and legal fees for which they were indebted. I therefore accept as inherently probable Mr White’s evidence that Mr Kohacek described Ms Qiu as their “saviour”, and that Mr Kohacek told him that he and Mr Colley just wanted to live at the Property for the rest of their lives without having to worry about their outstanding legal debts. However, I reject as inherently improbable Mr White’s evidence that Ms Qiu’s inability to proceed with the proposal (which had been known to Messrs Kohacek and Colley since March 2019) caused their relationship with Ms Qiu to deteriorate “almost overnight” in late August or early September 2019. [32] I also reject Ms Cassidy’s evidence that Mr White told her in August 2019 that Mr Kohacek was angry because Ms Qiu could not get finance to proceed with the proposal. [33] I accept Mr Kohacek’s evidence that it was the Certificate of Determination of Costs in favour of Mr Corbett that he received on 4 September 2019 which precipitated the rapid deterioration of his and Mr Colley’s relationship with Ms Qiu and McQiu Lawyers. Relatively contemporaneous documents, and the matters that Mr White subsequently agitated with McQiu Lawyers on behalf of Messrs Kohacek and White, indicate that they were also very upset about having to pay legal fees to McQiu Lawyers for the services they had provided. All of this led to Mr Kohacek telling Ms Qiu on 9 September 2019 that “the deal is off” and Messrs Kohacek and Colley making new wills to remove Ms Qiu as a beneficiary. [34] That aspect of Mr Kohacek’s evidence is consistent with McQiu Lawyers’ account of their dealings with Messrs Kohacek and Colley in a letter to Mr White dated 18 October 2019, on which Mr White relied in his various affidavits sworn in these proceedings.

In circumstances where the proposal for Ms Qiu to acquire an interest in the Property had died in March 2019, it is highly improbable that Messrs Kohacek and Colley contacted Mr White on 3 September 2019 to arrange a meeting the following day in which they discussed that proposal and told him that they did not want to “proceed with” Ms Qiu. I reject Mr White’s evidence to that effect. Messrs Kohacek and Colley had known since March 2019 that there was no prospect of proceeding with the proposal for Ms Qiu to purchase a one-third interest in the Property, and it is inherently improbable that they would have been looking to revive such an arrangement with a new person, particularly a person such as Mr White who had no ability to provide them with legal representation in their ongoing disputes with former solicitors in relation to which they believed that McQiu Lawyers were acting for them free of charge. For that reason, and for the reasons explained at [27]-[29] above, I reject Mr White’s evidence that it was Mr Kohacek who approached him on 3 September 2019 to ask if he would be interested in acquiring the Property on terms similar to the arrangement that he and Mr Colley had discussed with Ms Qiu, and I reject Mr White’s account of the meeting that he says he had with Messrs Kohacek and Colley on 4 September 2019. [35] For the same reasons, I reject Ms Cassidy’s evidence that Mr White told her in early September 2019 that Messrs Kohacek and Colley had asked him to buy the Property instead of Ms Qiu because they did not want to proceed with Ms Qiu anymore. [36] I accept Mr Kohacek’s evidence that it was Mr White who proposed the arrangement which he then reduced to writing in the form of the Heads of Agreement after reviewing Mr Kohacek’s documents. [37] I find that Mr White saw the opportunity to enter into such an arrangement with Messrs Kohacek and Colley after learning in late August or early September 2019 about the arrangement they had previously discussed with Ms Qiu which had been abandoned some six months earlier, and after becoming aware that their relationship with Ms Qiu was deteriorating in the days following Mr Kohacek’s receipt of the Certificate of Costs Determination on 4 September 2019.

Mr White’s evidence that he had regular telephone conversations with Messrs Kohacek and Colley while he drafted the Heads of Agreement in the days following the meeting that he claims to have had with them on 4 September 2019 emerged for the first time in his second affidavit sworn on 15 December 2023. Mr Kohacek denies that any such discussions took place. I have rejected Mr White’s evidence of the 4 September 2019 meeting. I do not feel a sense of actual persuasion that there were any discussions about the terms of the Heads of Agreement before Mr White presented that document to Messrs Kohacek and Colley on 10 September 2019, and I do not accept the evidence of Mr White and Ms Cassidy to that effect. [38] It is inherently probable that Mr White wanted to do some due diligence on the affairs of Messrs Kohacek and Colley insofar as they might affect the Property, and to ensure that the terms he was drafting accurately recorded the amount of the debts owed by Messrs Kohacek and Colley and addressed any security interest that any of the creditors held over the Property. I accept Mr Kohacek’s evidence that he provided his records to Mr White at Mr White’s request. [39] I find that Mr White then drafted the terms of the Heads of Agreement without further discussion, extracting such information as he required from Mr Kohacek’s records and including several terms favouring his own interests (or his and Ms Cassidy’s interests) which had formed no part of the previous proposed arrangement with Ms Qiu. [40]

According to Mr Kohacek’s evidence, Mr Colley’s health had been deteriorating throughout 2018, and by 2019 Mr Kohacek was looking after him for most of each day. By late August or early September 2019, Mr Kohacek felt that he and Mr Colley were under a lot of pressure due to Mr Colley’s declining health and their significant legal debts. Mr Kohacek was very tired. He felt that he was not coping well, and found it difficult to make decisions.

Mr White and Ms Cassidy gave evidence cavilling with Mr Kohacek’s description of Mr Colley’s health and the extent to which Mr Kohacek was caring for him in 2019. I reject that evidence. Mr White did not meet Mr Colley until July 2019. [41] Ms Cassidy did not meet Mr Kohacek or Mr Colley until a few days after the Heads of Agreement were signed in September 2019. [42] As Mr Colley’s life partner who was living with him full-time, Mr Kohacek had intimate knowledge of Mr Colley’s health, and the extent to which he required care or assistance from Mr Kohacek in his day-to-day living, to which third parties such as Mr White and Ms Cassidy were not privy. Mr White and Ms Cassidy saw Mr Kohacek on an occasional basis, from July 2019 in the case of Mr White and from September 2019 in the case of Ms Cassidy. Mr White acknowledged this under cross-examination, and accepted that Mr Colley was frail, and was losing strength and mobility, in 2019. Mr White also acknowledged that Mr Kohacek had told him that Mr Colley had had a stroke in the past. By contrast, Ms Cassidy insisted under cross-examination that Mr Colley was “in grand health” when she met him in September 2019, that he “walked with a great gait” and that he had no mobility issues until about September 2021. Ms Cassidy said that, when she met Messrs Kohacek and Colley in September 2019, they were “both cognitively aware of what was going on in the world. And they offered the same deal to us as they had to Ms McQiu [sic]. And they knew what they were doing. …” Ms Cassidy’s evidence is inconsistent with the evidence of Mr Kohacek, and with Mr White’s evidence in cross-examination. It is also inconsistent with an aged care assessment report in respect of Mr Colley prepared in August 2021, which records that Mr Colley had been approved for residential care in June 2017 and that he “has had a progressive functional, mobility and cognitive decline over the past few years”. I reject Ms Cassidy’s evidence. She had no basis to make such sweeping assertions about the state of Mr Colley’s health at the time that he signed the Heads of Agreement. The fact that she did so repeatedly under cross-examination reflects poorly on her credibility. [43]

I accept Mr Kohacek’s evidence of the state of Mr Colley’s health and the extent of his care responsibilities in 2019, which is broadly consistent with the history recorded in the 2021 aged care assessment report to which I have referred above. It is to be expected that those care responsibilities would be tiring for a person of Mr Kohacek’s age, and would weigh heavily on him together with the financial stressors to which I have referred at [118] below. I find that Mr Kohacek was indeed struggling under the weight of the pressures generated by their debts and his increasing care responsibilities for Mr Colley. I accept as inherently probable Mr Kohacek’s evidence that he was very tired, felt that he was not coping well, and found it difficult to make decisions, and his evidence that he told Mr White in late August or early September 2019: “I’m worried sick and caring for Ray makes everything very difficult. I’m exhausted and it is all too much for me.”

In his affidavit sworn on 15 December 2023, Mr White gave evidence that, based on conversations that he had with Mr Kohacek about the careers that he and Mr Colley had pursued and the properties they had owned in the past, his knowledge that Mr Kohacek and Mr Colley had initiated several litigious disputes, and his observation that Mr Kohacek kept extensive documents and records in relation to those disputes, he formed the view that Mr Kohacek and Mr Colley were assertive, intelligent and commercially sophisticated gentlemen who had extensive dealings in property and litigation, and who kept meticulous records of those dealings and provided detailed instructions to their solicitors and agents.

I reject that evidence which is irreconcilably inconsistent with evidence given by Mr White in cross-examination that, by early September 2019: he was concerned about Mr Kohacek’s “intensity to commence legal proceedings” and enter into cost agreements which he couldn’t afford and his resulting vulnerability to the solicitors to whom he then became indebted; he knew that Mr Kohacek never wanted to sell the Property and that he and Mr Colley wanted to live there until they died; he had formed the view that Messrs Kohacek and Colley had been exploited by Ms Qiu who, while acting as their solicitor, and after causing them to enter into costs agreements for fees they could not afford to pay, had put herself in a position to acquire the Property and to benefit under their wills; and he knew that Messrs Kohacek and Colley were suffering from financial stress as a result of the debts they owed to solicitors which they had no means to pay without selling the Property, and as a result of the caveat that McQiu Lawyers had lodged against the Property. Those concessions are consistent with Mr White’s own words in a letter that he enclosed with his complaint to the OLSC about McQiu Lawyers on behalf of Messrs Kohacek and Colley. In that letter, Mr White described Messrs Kohacek and Colley at the time of their dealings with Ms Qiu as “two honest and trusting old gentlemen, who after their failed attempt at justice, at the hands of three other legal firms, were in a very unfortunate position suffering immense financial and emotional pressure. Both men were in very poor health and had medical episodes requiring hospitalisation”. Mr White’s attempt to distance himself from his own words in cross-examination lacked credibility. Ms Cassidy was taken to those words in cross-examination and asked whether that accorded with her observation about Messrs Kohacek and Colley at the time she first met them. Ms Cassidy attempted to avoid answering the question three times, protesting that she could not possibly answer because she did not know the context in which Mr White had written those words. However, Ms Cassidy had been told that the words were written in Mr White’s complaint letter to the OLSC dated 30 March 2020. When I directed Ms Cassidy to answer the question, she said that she did not agree with Mr White’s observation. That denial given in those circumstances lacks credibility for all of the reasons explained at [28]-[29] above.

I find that, in September 2019, Messrs Kohacek and Colley were suffering under financial and emotional pressure, which they felt to be immense, as a result of their age, Mr Colley’s deteriorating health and increasing need for care from Mr Kohacek, their debts, and their distress at the prospect of having to sell the Property to which they had an emotional attachment and where they very much wanted to live for the rest of their lives. On the basis of the evidence and my findings referred to at [109]-[112], [116] and [118] above, I find that Mr White knew all of this when he prepared the Heads of Agreement, and when he presented it to Messrs Kohacek and Colley on 10 September 2019, as discussed immediately below.

The document that Mr White drafted and presented to Mr Kohacek and Mr Colley on 10 September 2019 was in the following terms (errors and emphasis in original):

It is common ground that Mr White brought the Heads of Agreement to Messrs Kohacek and Colley at the Property on 10 September 2019. Rather than leaving the document with them to read through in their own time, Mr White stayed with Messrs Kohacek and Colley while they read through it together. Ms Cassidy was not present on this occasion.

Mr White gave evidence that, after reading the Heads of Agreement, Mr Kohacek said that he was “pleased with everything and had no questions”. Mr White also gave evidence that he discussed the cooling off period with Messrs Kohacek and Colley on 10 September 2019 after they had signed the Heads of Agreement, and told them to get legal advice.

Mr Kohacek denied this. He gave evidence that, before signing the Heads of Agreement, he asked Mr White if he could take it to a solicitor, to which Mr White replied: “No. They are a waste of time and money. Don’t worry about this, I have had this checked by my cousin the Judge, my barrister Brendon Searson, my solicitor Moore & Co at Condobolin and the Law Society.”

When this was put to Mr White in cross-examination, he said it was “ridiculous” to suggest that he had said any such thing because it was clear from the contents of the Heads of Agreement that it had not been prepared or checked by his cousin Judge Culver (whom he had only met on one occasion). Mr White said that he had never said such words, or anything similar, and suggested that this aspect of Mr Kohacek’s evidence was the product of Mr Crawford twisting Mr White’s words.

The words that Mr Kohacek attributed to Mr White have nothing to do with Mr Crawford, who was not present when Mr Kohacek read the Heads of Agreement in Mr White’s presence on 10 September 2019. Mr Kohacek did not meet Mr Crawford until December 2021. [44] It was not put to Mr Kohacek or to Mr Crawford in cross-examination that Mr Crawford had influenced this aspect of Mr Kohacek’s evidence in any way.

It is inherently probable that Mr White wanted to discourage Mr Kohacek from consulting a solicitor. The terms of the Heads of Agreement were highly disadvantageous to Messrs Kohacek and Colley for the reasons explained below and it was therefore likely that any solicitor would advise them not to sign the document in the terms drafted by Mr White. [45]

I accept that the Heads of Agreement were not in fact reviewed by her Honour Judge Culver. However, I do not accept Mr White’s evidence denying that he would ever say words such as those attributed to him by Mr Kohacek. Mr White made a similarly fanciful assertion in a letter to Ms Li of McQiu Lawyers dated 16 March 2020 in which he pressed McQiu Lawyers to accept a payment of $10,000 in full settlement of their claim for legal fees owing by Messrs Kohacek and Colley, failing which he would lodge a complaint against the firm with the OLSC. In that letter, Mr White wrote that he had “organised a meeting with a judge and a crown prosecutor … for advice as to whether the actions of Kathy Qiu may be fraudulent”. Mr Kohacek’s evidence that Mr White told him that the Heads of Agreement had been “checked by my cousin the Judge, my barrister Brendon Searson, my solicitor Moore & Co at Condobolin and the Law Society” has the ring of truth about it.

Mr Kohacek gave evidence that he questioned the accuracy of the $1,500,000 valuation referred to in the Heads of Agreement because he considered it to be below the then current market value. According to Mr Kohacek, Mr White replied that he was using the valuation that Ms Qiu had tried to use because he needed it to be as low as possible to minimise his stamp duty, and that this would not affect anything else. Mr White gave evidence denying this and stating that Mr Kohacek had given him a copy of the January 2019 valuation report so that he could use it in drafting the Heads of Agreement. Mr White also gave evidence about a conversation he says he had with the valuer in 2024 on which he relied in arguing that the valuation was not below the current market value. The plaintiffs did not adduce any evidence from the valuer, and did not adduce any independent expert evidence of the value of the Property as at September 2019.

As I have said earlier in these reasons, I do not accept the valuation certificate as evidence of the market value of the Property when the certificate was prepared in January 2019, or at any other time relevant to these proceedings. [46] I have accepted Mr Kohacek’s evidence that he provided his records to Mr White at his request after Mr White offered to prepare the terms of an agreement that he was willing to enter into with Messrs Kohacek and Colley to acquire an interest in the Property in return for discharging their debts, and to receive their remaining interests in the Property under their wills. [47] It is likely that the valuation certificate was included in the records that Mr Kohacek provided to Mr White, but it is inherently improbable in my opinion that Mr Kohacek said anything to Mr White endorsing or encouraging the use of the valuation certificate as determining the value of the Property for the purpose of the Heads of Agreement. Mr Kohacek had been told by Ms Qiu that the valuation needed to be as low as possible to minimise her stamp duty liability, the valuation certificate expressly stated that it was provided for stamp duty purposes, and it valued the Property at less than half of the price for which Messrs Kohacek and Colley had listed it for sale in early 2018. [48] In those circumstances, it is inherently probable that Mr Kohacek did question the use of the valuation certificate in the Heads of Agreement.

Mr White’s evidence arguing and asserting that the valuation certificate did reflect the market value of the Property in September 2019 is self-serving and lacks credibility having regard to his letter to the OLSC dated 30 March 2020, in which Mr White described it as “a reduced valuation obtained for stamp duty purposes only”. Mr White’s evidence is also inconsistent with an email that he sent to Ms Li of McQiu Lawyers on 29 March 2020, immediately before making his complaint to the OLSC about that firm. In his email to Ms Li, Mr White wrote:

When asked about that email in cross-examination, Mr White sought to distinguish the terms of the Heads of Agreement that he drafted from the terms of the draft contract prepared by Mr Mann under which Ms Qiu was the proposed purchaser. Mr White said that Ms Qiu merely had to pay $2,000 per month and she would have ended up with the Property, whereas he and Ms Cassidy had to pay the legal debts, agitate complaints and fight legal battles on behalf of Messrs Kohacek and Colley, and look after them. Mr White emphasised the effort that he said he had put into looking after Mr Kohacek’s complaints and legal battles. He described the Heads of Agreement as “very suitable to both parties” and denied that it delivered a windfall to him and to Ms Cassidy.

Ms Cassidy relied on the $1,500,000 valuation certificate in resisting the proposition put to her in cross-examination that the Heads of Agreement had the effect of delivering a windfall to herself and Mr Thorne, making the following assertions: “A property is only worth as much as it’s worth. And if you’ve got a written valuation, that’s how much it’s worth. So the valuation which was gained by Mr Colley – Mr Kohacek was $1.5 million. It can’t be worth any more than it’s valued at.” Ms Cassidy then gave evidence that she did not recall that Mr White had showed her the valuation certificate, but said that “… he doesn’t have to show me, he just has to tell me”. Ms Cassidy evaded answering the question whether she knew that Mr White had described the valuation certificate as “a reduced valuation obtained for stamp duty purposes only” in his letter to the OLSC dated 30 March 2020.

Mr White’s evidence seeking to distinguish the Heads of Agreement from the arrangement that Messrs Kohacek and Colley had been prepared to enter into with Ms Qiu fails to grapple with the objective fact that the purchase price of $500,000 stipulated in the draft contract of sale to Ms Qiu was the same as the purchase price stipulated in the Heads of Agreement. Ms Qiu’s draft contract provided for the whole of that purchase price to be paid in $2,000 monthly instalments, whereas the Heads of Agreement provided for part of the purchase price to be paid through Mr White and Ms Cassidy extinguishing the debts owed by Messrs Kohacek and Colley to solicitors, with the balance to be paid in due course when they sold other properties that they owned, time not being of the essence. Mr White and Ms Cassidy were therefore in a position to control the timing of the payment of the balance, and they were required to service the Commonwealth Bank mortgage in the meantime. The work that Mr White says he invested in agitating complaints and fighting legal battles for Mr Kohacek was directed against the solicitors to whom Messrs Kohacek and Colley were indebted. It is clear from clause 6(f) of the Heads of Agreement that Mr White and Ms Cassidy stood to benefit from that work as it would have effectively reduced the purchase price payable for the one-third interest in the Property if the contract for sale envisaged by the Heads of Agreement had been entered into. Contrary to Mr White’s evidence, neither the Heads of Agreement nor the terms to be included in the proposed contract for sale of land recorded in clause 6 of the Heads of Agreement required he or Ms Cassidy to fight all of Mr Kohacek’s legal battles for the rest of his life. On the contrary, clause 6(r) of the Heads of Agreement provided that the proposed contract for sale of land would include a clause whereby Messrs Kohacek and Colley irrevocably authorised Mr White and Ms Cassidy to act on their behalf in negotiating, resolving or settling any matter or dispute for the duration of the lives of Messrs Kohacek and Colley.

Although he disputed Mr Kohacek’s evidence that he questioned the use of the $1,500,000 valuation in the Heads of Agreement, Mr White did not give any evidence suggesting that he explained the effect of clause 6(k) of the Heads of Agreement to Messrs Kohacek and Colley before they signed the Heads of Agreement.

For all of those reasons, and for the reasons explained at [27]-[29] above, I reject Mr White’s evidence that, after reading the Heads of Agreement on 10 September 2019, Mr Kohacek simply said that he was “pleased with everything and had no questions”. I find that Mr Kohacek asked to seek legal advice before signing the Heads of Agreement, and that Mr White discouraged him from doing so. I further find that Mr Kohacek questioned the incorporation of the $1,500,000 valuation in the Heads of Agreement, and Mr White told him that this was for the purpose of reducing stamp duty, without explaining to Messrs Kohacek and Colley that he had deployed that valuation in drafting the terms of clause 6(k) of the Heads of Agreement to cap their entitlement to the proceeds of sale of the Property if it was sold during their lifetime for any reason, and to ensure that Mr White and Ms Cassidy alone would receive the benefit of the value of the Property in excess of $1,500,000 million – which Mr White described in cross-examination as “a fair outcome”. I further find that Mr White believed that the valuation of $1,500,000 was less than the market value of the Property in September 2019, and that a contract for sale of land in the terms set out in clause 6 of the Heads of Agreement would deliver a substantial windfall to himself and Ms Cassidy.

For the same reasons, I reject Ms Cassidy’s evidence that, when Mr White showed her the signed Heads of Agreement on 10 September 2019, he told her that Messrs Kohacek and Colley had “seemed very pleased with the written agreement as it was consistent with the offer they made on 4 September 2019 – and the subsequent terms discussed over the phone between Mr Kohacek and Mr White”, and that Mr Kohacek was going to show the Heads of Agreement to his solicitor. I observe in passing that Mr White’s evidence of the discussion that he says he had with Messrs Kohacek and Colley on 4 September 2019 and the further telephone discussions that he says he had with Mr Kohacek, which I have rejected, does not include any discussion of the substance and effect of the terms of the Heads of Agreement referred to at [141]-[148] below.

For the reasons explained at [114]-[118] above, I accept Mr Kohacek’s evidence that he was “feeling the stress of the litigation, the stress of caring for Mr Colley, [and was] sleep deprived”, and that this made it difficult for him to make decisions at this time.

Mr Kohacek, Mr Colley and Mr White signed the Heads of Agreement before Mr White left the Property on 10 September 2019. Messrs Kohacek and Colley did not seek legal advice before signing the document. I find that they signed it under the financial and emotional pressure described at [118] above, and that Mr White was aware that they were labouring under that pressure.

In his affidavits and under cross-examination, Mr Kohacek gave evidence to the effect that Mr White told him that he needed to sign the Heads of Agreement so that Mr White could “get rid of” Ms Qiu. Mr Kohacek gave evidence to the effect that Mr White told him, and he believed, that the Heads of Agreement was only a temporary arrangement for the purpose of “getting rid of” Ms Qiu and that it was be converted into a contract later. Mr White gave evidence denying that he had told Messrs Kohacek and Colley that the Heads of Agreement was a temporary document, or that he would “get rid of” Ms Qiu or McQiu Lawyers.

The McQiu Lawyers caveat and the prospect that McQiu Lawyers might claim to be entitled to force a sale of the Property to recover their fees was a key source of the financial and emotional pressure under which Mr Kohacek was labouring in September 2019. In those circumstances, and having regard to the provisions of clauses 6(d), (g) and (h) of the Heads of Agreement, it is highly probable that there was some discussion about “getting rid of” that caveat and about Messrs Kohacek and Colley lacking the financial means to “get rid of” it without selling the Property, and I so find. I accept that Mr Kohacek viewed the removal of that caveat as central to the purpose of the Heads of Agreement. I accept his evidence that he signed the document so that Mr White could “get rid of” the caveat. I also accept that Mr Kohacek thought of the Heads of Agreement as temporary, in the sense that it was an agreement for the entry into a contract for sale of land which was yet to be prepared and which could be rescinded by Mr White and Ms Cassidy if the caveat was not removed. However, I do not feel actual persuasion that Mr White used the word “temporary” to describe the Heads of Agreement.

Viewed objectively, the terms of the Heads of Agreement, and the terms of the contract for sale of land that the Heads of Agreement was to be “converted to”, were highly disadvantageous to Messrs Kohacek and Colley and correspondingly advantageous to Mr White and Ms Cassidy, for the following reasons.

First, the $500,000 purchase price to be stipulated in the contract for a one-third interest in the Property was based on a valuation certificate which did not provide cogent evidence of the market value of the Property for reasons that I have already explained, [49] and which was out of date by September 2019 in any event. Clauses 6(c), (d) and (f) of the Heads of Agreement provided that the proposed contract for sale of land would contain provisions that effectively entitled Mr White and Ms Cassidy to pay less than the $500,000 purchase price if they were successful in negotiating a reduction in the amounts payable to the solicitors to whom Messrs Kohacek and Colley were indebted.

Second, clause 6(h) of the Heads of Agreement provided that the proposed contract for sale of land would include a right for Mr White and Ms Cassidy to rescind the contract in the event that “the caveatable interest lodged by McQui Lawyers over the property cannot be extinguished or any liability of the vendors to McQui laywers cannot be extinguished”. That situation could only arise if Mr White and Ms Cassidy did not wish to pay the full amount claimed by McQiu Lawyers and were unable to negotiate that amount down or achieve a costs assessment for an amount that they considered acceptable. This effectively gave Mr White and Ms Cassidy a discretion whether or not to proceed to complete the contract according to whether or not they were satisfied with the outcome of their negotiation with McQiu Lawyers or any costs assessment. In the event that Mr White and Ms Cassidy exercised their right to rescind, all other monies they had paid under the proposed contract for sale of land, including monies paid to extinguish the debts owed by Messrs Kohacek and Colley to Mr Corbett and Mr Weller as referred to in clauses 6(c) and (d), would be “refunded from the future sale proceeds of the property”. Thus, clause 6(h) exposed Messrs Kohacek and Colley to the risk of having to sell the Property if Mr White and Ms Cassidy chose to exercise their right of rescission.

Third, if the proposed contract for sale of land was entered into and completed, Mr White and Ms Cassidy would be co-owners of the Property with Messrs Kohacek and Colley. As co-owners, Mr White and Ms Cassidy would have the right to apply for an order for the appointment of trustees for the sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW). It is well-established that the grounds on which the Court will ordinarily decline to exercise its discretion to make such an order on the application of a co-owner under s 66G are limited. Those grounds include where the order would be inconsistent with a proprietary right, or a contractual or fiduciary obligation or an equitable or conventional estoppel against the application. There is no general jurisdiction to refuse to grant an order under s 66G on the basis of hardship or unfairness. [50] It is for a co-owner who opposes the making of an order under s 66G to establish a reason why the order should not be made. [51] The Heads of Agreement does not contemplate that the proposed contract for sale of land would contain any covenant by Mr White and Ms Cassidy not to seek an order under s 66G during the lifetime of Messrs Kohacek and Colley. On the contrary, as discussed above, the Heads of Agreement contemplates that the proposed contract would entitle Mr White and Ms Cassidy to require the sale of the Property in the event that they exercised their right of rescission.

Fourth, in the event that the Property was sold, including if that became necessary to fund aged care for Messrs Kohacek and Colley, the terms of the proposed contract for sale of land contemplated by clause 6(k) of the Heads of Agreement would entitle Messrs Kohacek and Colley to a share of the net sale proceeds only up to $1,500,000, and would entitle Mr White and Ms Cassidy to the whole of the net sale proceeds in excess of $1,500,000. As I have said earlier in these reasons, there is no evidence that the figure of $1,500,000 represented the market value of the Property in September 2019, and Mr White regarded it as a reduced value “for stamp duty purposes”.

Fifth, clause 6(i) of the Heads of Agreement provided that the proposed contract for sale of land would include a provision to the effect that the Property was to remain free of any mortgages, caveats, encumbrances or other restrictions. This would effectively preclude Messrs Kohacek and Colley from raising funds against the security of their only substantial asset to pay for any needs they may have as they aged which could not be paid for out of their pension. As explained immediately above, any sale of the Property to meet such needs would be on terms that limited their entitlement to the net sale proceeds to two thirds of the sale price up to $1,500,000.

In summary, the combined effect of the provisions of the contract for sale contemplated by the Heads of Agreement is that the proposed contract would deliver to Mr White and Ms Cassidy “an irrevocable right of survivorship” to the whole of the Property immediately upon exchange of contracts and a one-third interest in the Property immediately on completion of the contract. As co-owners on and from completion, it would be open to Mr White and Ms Cassidy to apply to the Court at any time for orders under s 66G of the Conveyancing Act appointing trustees for the sale of the Property. In the event that the Property was sold at their instigation, or by agreement with Messrs Kohacek and Colley in order to fund their aged care, Mr White and Ms Cassidy would be entitled to a one-third share of the net sale proceeds up to $1,500,000 and the whole of the net sale proceeds in excess of $1,500,000.

There is no evidence that Mr White explained to Messrs Kohacek and Colley any of those features of the Heads of Agreement before they signed the document on 10 September 2019 or subsequently. Those matters would have been explained by any competent solicitor if Messrs Kohacek and Colley had sought legal advice prior to signing the document. As I have found at [135] above, Mr Kohacek wished to seek legal advice prior to signing but Mr White discouraged him from doing so.

As I have already mentioned, Ms Cassidy was not present on the occasion when Mr White and Messrs Kohacek and Colley signed the Heads of Agreement on 10 September 2019. Nor did she sign that document subsequently. However, Ms Cassidy was aware of the terms of the document because Mr White showed it to her immediately after it was signed. Ms Cassidy was also aware that Mr Kohacek and Colley were elderly, and that they had significant debts. For all of the reasons above, I reject Ms Cassidy’s evidence given in cross-examination describing the Heads of Agreement as an arrangement that gave Messrs Kohacek and Colley the peace of mind of being able to live at the Property for the rest of their lives without having debts hanging over their heads, and denying that the terms were significantly weighted in favour of herself and Mr White and against Messrs Kohacek and Colley.

As was put to Mr White in cross-examination, he saw Messrs Kohacek and Colley as vulnerable, he formed the view that Ms Qiu had been exploiting them, and he took advantage of them by striking a deal on the terms of the Heads of Agreement under which he and Ms Cassidy stood to receive a substantial windfall.

Under cross-examination, Mr Kohacek accepted that, when he was signing the Heads of Agreement, he noticed the final clause which provided for a cooling off period and stated that each party should seek their own independent legal advice. However, Mr Kohacek gave inconsistent evidence about his understanding of that final clause. On the one hand, Mr Kohacek said: “… if there’s a cooling off period, you don’t sign it, you go see a solicitor first. That’s my – that’s what I would do”. On the other hand, Mr Kohacek said that he understood that he had a right to cancel the Heads of Agreement within five days of signing it. Mr Kohacek consistently said that he had wanted to see his solicitor before signing the Heads of Agreement, but that Mr White told him this would be a waste of time and money because the document been prepared by Mr White’s cousin who was a judge, the Law Society, barristers and solicitors. I have addressed this evidence at [122]-[127] above. As will be seen below, Messrs Kohacek and Colley did instruct Mr Mann to draw new wills removing Ms Qiu as a beneficiary within days of Mr Kohacek telling Ms Qiu that “the deal is off”. This occurred within the cooling off period stipulated in the Heads of Agreement, but they did not seek Mr Mann’s advice about that document. Not having sought legal advice, Messrs Kohacek and Colley did not cancel the Heads of Agreement within five days after signing it.

I reject the plaintiffs’ submission that the terms of the contract for sale contemplated by the Heads of Agreement were more advantageous to Messrs Kohacek and Colley than the terms of the agreement they had been willing to enter into with Ms Qiu six months earlier. It is not clear precisely what those terms were, but they did not preclude Messrs Kohacek and Colley from mortgaging their two-thirds interest in the Property to raise any funds that they may require during their lifetime, and they did not entitle Ms Qiu to the whole of the value of the Property in excess of $1,500,000 in the event that it was sold during the lifetime of Messrs Kohacek and Colley. [52] Contrary to the plaintiffs’ submissions, the proposed term that Mr White and Ms Cassidy would be “responsible for the general well-being” of Messrs Kohacek and Colley was too vague to be of any meaningful benefit to them if it came to enforcing the proposed contract. In any event, I do not consider that any version of the terms which Messrs Kohacek and Colley had been prepared to agree with Ms Qiu, who was acting as their solicitor at the time, provide a benchmark against which to assess the advantages or disadvantages of the terms of the Heads of Agreement from their point of view.

For completeness, I reject the plaintiffs’ submission characterising the proposed terms as catering for a potential need for Messrs Kohacek and Colley to transition to retirement accommodation. As was known to Mr White at the time the Heads of Agreement was entered into, Messrs Kohacek and Colley had no desire to transition to retirement accommodation and wanted to continue living at the Property for the rest of their lives. [53] In the event that their health deteriorated to the point that they needed to move into retirement or nursing home accommodation, the effect of the terms of the contract for sale of land contemplated by clauses 6(k), 6(q) and 6(s) of the Heads of Agreement was that they could not cause the Property to be sold in order to liquidate their interest in it for the purpose of funding that accommodation and care without the agreement of Mr White and Ms Cassidy. If that agreement was forthcoming and the Property was sold, Messrs Kohacek and Colley would receive no part of the sale proceeds in excess of $1,500,000.

It will be recalled that clause 3 of the Heads of Agreement provided for a “one of [sic] transfer of a non refundable $5000 cash advance from Gary White to the vendors”.

It is common ground that Mr White did make a cash payment of $5,000 to Messrs Kohacek and Colley at or about the time the Heads of Agreement was signed, and that Mr Kohacek deposited $4,300 of that sum in his bank account on 13 September 2019.

Mr Kohacek gave evidence that he sought to return the payment to Mr White because he and Mr Colley had “sufficient money of our own”, but that Mr White refused, and that Mr Kohacek therefore returned the money to Ms Cassidy who told him that she would use it to buy earrings and that she would not tell Mr White so that he would not be offended. In cross-examination, Mr Kohacek gave inconsistent evidence about the time at which he claims to have returned the money, or part of it, to Ms Cassidy. The statements for his bank account that were tendered in evidence do not record any withdrawal of the sum of $4,000 that he claims to have repaid to Ms Cassidy after the deposit of the $4,300 into his account on 13 September 2019. Ms Cassidy denied that Mr Kohacek returned the cash payment, or any part of it, to her.

As Mr Kohacek’s bank statements do not corroborate this aspect of his evidence, and for the reasons explained at [30]-[31] above, I reject his evidence that he returned part of the cash payment to Ms Cassidy.

On 12 and 13 September 2019, each of Mr Kohacek and Mr Colley prepared and signed a handwritten letter to Mr Mann instructing him that he no longer wished Ms Qiu to be a beneficiary under his will, and requesting him to prepare a new will. Mr Kohacek’s letter to Mr Mann states: “We have no more connection with Kathy Xialin [sic] Qiu.”

Mr Mann prepared a new will for each of Mr Kohacek and Mr Colley in accordance with those instructions. Those new wills were signed on 21 October 2019. Each of Mr Kohacek and Mr Colley bequeathed the whole of his estate to the other.

Mr White gave evidence that he had a conversation with Mr Kohacek in about October 2019 in which Mr Kohacek told him that he and Mr Colley had discussed the Heads of Agreement with Mr Mann, that Mr Mann had then told them to come in to remove Ms Qiu from their wills, and that they had each visited Mr Mann and signed new wills under which Ms Qiu was not a beneficiary. Mr Kohacek denied this, and denied ever discussing the Heads of Agreement with Mr Mann.

By January 2021, Mr Mann was aware of the existence of the Heads of Agreement because he referred to it in passing in a letter to Mr White responding to Mr White’s complaints about Mr Mann’s conduct of the costs assessment process that Mr White had initiated on behalf of Messrs Kohacek and Colley challenging the amount of the fees charged by McQiu Lawyers. However, contrary to the plaintiffs’ submissions, it does not follow that Messrs Kohacek and Colley had told Mr Mann about the Heads of Agreement, let alone sought his advice about it. As referred to later in these reasons, [54] solicitors acting for Mr White and Ms Cassidy sent the Heads of Agreement to Mr Mann’s firm on 11 March 2020 requesting that they prepare a contract for sale of the Property and submit it to them for their approval. It is inherently probable that Mr Mann became aware of the Heads of Agreement as a result of that communication.

Mr White’s evidence that Mr Kohacek told him that Mr Mann, upon being informed about the Heads of Agreement, told them to make new wills, is inherently improbable, as this would be an unusual thing for a solicitor to say to a client. Moreover, it is inconsistent with the contemporaneous documents which show that each of Mr Kohacek and Mr Colley issued formal written instructions to Mr Mann concerning his will, and that those instructions made no reference to the Heads of Agreement and contained no request for advice in relation to the Heads of Agreement. Given that they went to the trouble of recording their instructions in writing, it is inherently probable that they would have included a request for advice about the Heads of Agreement in those instructions if they had requested any such advice.

For those reasons, and for the further reasons at [27] and [29] above, I reject Mr White’s evidence that Mr Kohacek told him in October 2019 that he and Mr Colley had discussed the Heads of Agreement with Mr Mann. I have accepted Mr Kohacek’s evidence that Mr White discouraged him from seeking legal advice before signing the Heads of Agreement, and I accept his evidence that he did not do so after signing that document.

On 15 September 2019, Ms Cassidy visited the Property together with Mr White. This was Ms Cassidy’s first meeting with Messrs Kohacek and Colley. I do not find it necessary to resolve the contest between Ms Cassidy on the one hand and Mr Kohacek on the other hand about whether or not Ms Cassidy took with her the home-baked afternoon tea that Ms Cassidy describes in elaborate detail in her affidavit for them to enjoy together at this first meeting.

According to Mr White’s evidence, he asked Messrs Kohacek and Colley at the conclusion of this meeting whether they wanted to proceed with the Heads of Agreement, and Mr Kohacek replied that “they loved our family, and thought it was a perfect arrangement for everyone”. Mr Kohacek denies this.

For the reasons explained at [22]-[27] and [29] above, I am not persuaded that this conversation occurred in the self-serving terms described by Mr White. However, it is inherently probable that some conversation occurred on 15 or 16 September 2019 about proceeding with the Heads of Agreement, having regard to the document that Messrs Kohacek and Colley signed on 16 September 2019 addressed “TO WHOM IT MAY CONCERN” certifying that Mr White was their “business consultant acting on all matters of business on our behalf”.

According to Mr White’s evidence, that document was drafted by Mr Kohacek and Mr White merely typed it up and took it to the Property for Messrs Kohacek and Colley to sign in order to enable Mr White “to deal with the relevant persons and entities to facilitate the payment under the Heads of Agreement”, and “lodge the complaint to the OLSC”.

Mr Kohacek denied drafting the document. According to his evidence, Mr White arrived simply at the Property on 16 September 2019 and said “I need this document so I can act for you and to be able to get rid of Kathy McQiu [sic] and follow up on her fraudulent scheme with OLSC”, and “I can’t solve your problems unless you sign this document”.

Given the passage of time, I do not consider either Mr White’s evidence or Mr Kohacek’s evidence to be a reliable account of their conversation at the time the document was signed. Irrespective of who drafted the terms of the document, it was signed in circumstances where Mr White had discouraged Mr Kohacek from seeking legal advice before signing the Heads of Agreement, [55] which Mr Kohacek viewed as the means of removing the caveat that McQiu Lawyers had lodged against the title to the Property and alleviating his concern that McQiu Lawyers might claim to be entitled to force a sale of the Property to recover their legal fees. [56]

On 16 September 2019, Mr White wrote to Mr Weller advising that he was authorised to act on behalf of Messrs Kohacek and Colley, and asserting that Mr Weller was indebted or obliged to account to Messrs Kohacek and Colley for amounts totalling $22,372.96.

On 17 September 2019, Mr White wrote to McQiu Lawyers demanding that the caveat lodged against the title to the Property be removed, disputing their claim to fees, and demanding that Mr Kohacek’s documents be returned to him.

It is common ground that Mr White paid the sum of $45,000 to Mr Corbett on 20 September 2019 for the costs of Supreme Court proceeding 2018/201077, which was an application by Mr Corbett for assessment of his solicitor/client costs incurred in acting for Messrs Kohacek and Colley. The receipt noted that Supreme Court proceeding 2018/201065 – the separate application by Mr Corbett for assessment of his solicitor/client costs in acting for Messrs Kohacek and Colley in relation to the proceedings brought against them by Mr Weller – was yet to be determined.

It is common ground that, between 9 October 2019 and 8 January 2020, Mr White made payments to Mr Weller totalling $1,504.13 which extinguished the debt owing by Messrs Kohacek and Colley to Mr Weller. The debt of $14,500 referred to in clause 6(d) of the Heads of Agreement had been reduced by offsetting an amount that Mr White asserted on behalf of Messrs Kohacek and Colley was owing by Mr Weller to them.

It is common ground that, from 1 November 2019, Mr White began making monthly payments against the Commonwealth Bank mortgage secured against the Property. Those payments were continuing at the time of the hearing. The amount of the monthly payments varied over time between $1,500 and $2,400 per month. The total amount of the payments in the period up to 21 October 2024 was $106,600.

It is common ground that, from 9 December 2019, Mr White made payments towards the rates and insurances for the Property. The total amount of those payments in the period up to 21 October 2024 was $12,353.43.

It is common ground that, on 26 February 2020 Mr White made a further payment of $6,401.45 to Mr Corbett, which extinguished the remaining debt owed by Messrs Kohacek and Colley to Mr Corbett that had been recorded in the Heads of Agreement. Mr White made a further payment of $7,335.90 to Mr Corbett on 12 October 2020, almost all of which was reimbursed by Mr Kohacek on 30 October 2020.

As I have already mentioned, Mr White wrote to McQiu Lawyers on behalf of Messrs Kohacek and Colley on 17 September 2019 demanding that the caveat lodged against the title to the Property be removed, disputing their claim to fees, and demanding that Mr Kohacek’s documents be returned to him. McQiu Lawyers responded on 18 October 2019 with a long letter outlining the history of the firm’s dealings with Messrs Kohacek and Colley, including the circumstances in which it had been proposed that Ms Qiu would acquire an interest in the Property and the reasons why Ms Qiu decided in March 2019 not to proceed with that acquisition.

This marked the beginning of frequent correspondence between Mr White and Ms Li of McQiu Lawyers in which Mr White made serious allegations of misconduct against the firm and Ms Qiu and pressured them to waive or compromise the amount of legal fees said to be owing by Messrs Kohacek and Colley, and Ms Li denied those allegations on behalf of the firm and Ms Qiu and declined to compromise on the amount of fees owing to the firm. During the course of that correspondence, Mr White described Messrs Kohacek and Colley at the time of their dealings with Ms Qiu as “two frail and vulnerable old men” who were “emotionally and financially vulnerable and in desperate need for [sic] assistance”, and assessed the terms of the agreement that they had been willing to enter into with Ms Qiu as delivering a “very substantial windfall” to Ms Qiu, as I have referred to earlier in these reasons. [57] Ms Li’s responses to some of the allegations relied on text messages that Mr Kohacek had sent to Ms Qiu which appeared to contradict the allegations that Mr White was now making on behalf of Messrs Kohacek and Colley. Mr White was dismissive of such text messages, describing Mr Kohacek as “an honourable old Italian” who “gets intoxicated and texts”.

Having failed to achieve any waiver or reduction in McQiu Lawyers fees through this correspondence, Mr White made a complaint to the OLSC against Ms Qiu on behalf of Messrs Kohacek and Colley on 30 March 2020. The outcome for which Mr White advocated was described in the complaint letter as rescission of the costs agreements that Messrs Kohacek and Colley had entered into with McQiu Lawyers, and waiver of all fees claimed by the firm. As referred to earlier in these reasons, [58] Mr White’s complaint letter enclosed extracts from his correspondence with Ms Li of McQiu Lawyers, including a letter in which Mr White described Messrs Kohacek and Colley at the time of their dealings with Ms Qiu as “two honest and trusting old gentlemen, who after their failed attempt at justice, at the hands of three other legal firms, were in a very unfortunate position sufficient immense financial and emotional pressure. Both men were in very poor health and had medical episodes requiring hospitalisation.”

Mr White’s complaint to the OLSC was considered by the Professional Conduct Committee of the Law Society of NSW, which resolved on 6 August 2020 to close the complaint pursuant to s 277(1)(a) of the Legal Profession Uniform Law (NSW) on the grounds that it was misconceived or lacking in substance. The Committee’s reasons for decision included that: (1) Messrs Kohacek and Colley signed costs agreements with McQiu Lawyers which stated the hourly rates that would be charged and the estimated total fees that would be charged for their work, and so must have understood that the firm was not working for free in return for Messrs Kohacek and Colley making Ms Qiu a beneficiary under their wills, particularly after October 2019 when they made new wills under which she was not a beneficiary; (2) Messrs Kohacek and Colley received independent legal advice from Mr Mann in relation to their previous wills which named Ms Qiu as a beneficiary; (3) Messrs Kohacek and Colley must have appreciated that the caveat lodged by McQiu Lawyers was intended to facilitate the enforcement of the charge over the Property securing legal fees owing to the firm, as they signed a costs agreement containing a charging clause; (4) although Messrs Kohacek and Colley had discussed an agreement whereby Ms Qiu would acquire an interest in the Property, no such agreement had been entered into; and (5) having regard to the terms of the Heads of Agreement that Mr White had entered into with Messrs Kohacek and Colley, Mr White had a financial interest in making a complaint about Ms Qiu and in the outcome of the complaint, and the correspondence exchanged between Mr White and McQiu Lawyers indicated that he views the complaints and disciplinary process as a means to negotiate legal fees, remove the caveat or waive the costs agreements. The Committee noted that the disciplinary complaints process should not be used to threaten or intimidate solicitors, or as a bargaining chip for legal fees owed to solicitors. The Committee informed Mr White that its determination to close the complaint was final, subject to any internal review that the NSW Legal Services Commissioner may conduct in his absolute discretion. There is no evidence that the Commission initiated any such review.

On 23 October 2020, Mr White caused Mr Mann to make an application on behalf of Messrs Kohacek and Colley pursuant to s 198 of the Legal Profession Uniform Law for assessment of the costs payable by them to McQiu Lawyers in respect of invoices issued by the firm in October 2019 for fees totalling $111,877.87. On 31 October 2020, Mr White wrote to the OLSC seeking to reagitate his complaint against Ms Qiu, relying on the contentions made on behalf of Messrs Kohacek and Colley in support of the application for costs assessment. The costs assessor’s determination issued on 4 January 2021 reduced the amount of the costs payable to McQiu Lawyers. Mr Mann advised Mr White of this outcome on 11 January 2021. McQiu Lawyers advised Mr White on 15 January 2021 that they did not intend to apply for a review of the assessment. Mr Mann wrote to Mr White on 20 January 2021 rejecting allegations made by Mr White that Mr Mann had been dishonest or supportive of Ms Qiu in failing to swear an affidavit that Ms Qiu had told Messrs Kohacek and Colley that they would not have to pay any fees. Mr Mann advised Mr White that he was not in a position to swear such an affidavit because no such representation had been made by Ms Qiu to him or in his presence. Mr Mann noted that it was open to Messrs Kohacek and Colley to apply for a review of the assessment if they wished to do so, and that Turner Freeman would charge professional fees if they were engaged to act for them in relation to any such application. There is no evidence that Messrs Kohacek and Colley sought a review of the costs assessor’s determination. It is common ground that Mr White paid McQiu Lawyers the sum of $7,304 on 11 November 2020 and made further payments totalling $85,339.94 in June and July 2021 which extinguished the amount owing by Messrs Kohacek and Colley to McQiu Lawyers, as determined through the costs assessment process. McQiu Lawyers then withdrew its caveat from the title to the Property.

On 27 October 2020, Mr White wrote to Brydens Lawyers, who were acting for Mr Colley in relation to his claim for compensation arising out of his 2016 motor vehicle accident. Mr White alleged that Mr Colley had made false statements to a doctor at a recent interview conducted for the purpose of the case and asserted that Mr Colley was “not a reliable witness as to the true nature of his impairment”. Mr White noted that Mr Colley had been introduced to Brydens Lawyers by Ms Qiu, and asserted that there were matters being investigated by the OLSC in relation to the conduct of Ms Qiu and the execution of costs agreements by McQiu Lawyers with Messrs Kohacek and Colley. That assertion was incorrect. Mr White’s complaint to the OLSC had been closed in August 2020. Mr White complained about Brydens’ conduct of the case, alleged that their costs agreement had not been fully explained to Mr Colley, and expressed his concern about Mr Colley’s potential liability for legal costs in the event of an adverse outcome in the case. Mr White sought an explanation of “where this case is heading and the expected outcome” and that Brydens “indemnify Mr Colley … from the possibility of any legal costs which the ability to pay or the availability to funds to pay he does not have”. In fact, Mr Colley did have the ability to pay any potential adverse costs order, unless he was prevented from selling the Property or using the Property as security for a loan to pay any such costs. Brydens Lawyers replied to Mr White informing him that Messrs Kohacek and Colley had instructed the firm to disregard his email, which had been sent without their knowledge, and declining to have any discussions concerning Mr Colley’s case other than in the presence of Mr Colley.

On 11 March 2020, shortly after Mr White had extinguished the debts owing by Messrs Kohacek and Colley to Mr Weller and Mr Corbett, [59] solicitors acting for Mr White and Ms Cassidy wrote to Turner Freeman enclosing a copy of the Heads of Agreement and requesting that they submit a contract for the sale of land in the terms provided for in the Heads of Agreement. The letter stated that Mr White and Ms Cassidy were anxious to proceed to formal exchange of contracts given that they had paid the cash sum of $5,000 to Messrs Kohacek and Colley and had also paid the legal fees owing to Mr Corbett which, together, comprised the deposit for their purchase under the Heads of Agreement. The letter also stated that, by way of further performance, Mr White and Ms Cassidy had been making interest payments of $2,000 per month to the Commonwealth Bank on behalf of Messrs Kohacek and Colley and had been paying half of the rates and insurance for the Property.

There is no evidence of any response to that letter. Mr White and Ms Cassidy gave evidence that they were not concerned about this because Messrs Kohacek and Mr Colley regularly told them that they owned one third of the Property. Once Messrs Kohacek and Colley made new wills in June 2020 benefitting Ms Cassidy, and her daughter and Mr White, as referred to below, Mr White and Ms Cassidy were content that they would inherit the Property in due course. Mr White gave evidence that he considered that a contract for the sale of a one-third interest in the Property “would be superfluous when we received the entire Wilberforce Property”.

Mr Kohacek gave evidence denying that that he or Mr Colley intended to be bound by the Heads of Agreement in the absence of contracts for sale being exchanged between the parties.

At 6:30am on 28 April 2020, Mr White received an email which appeared to be from Mr Kohacek which read (errors in original):

Mr Kohacek denied writing or sending this message. It was sent from an email address that he does not recognise. There is no evidence linking this email address with Mr Kohacek. Nor is there any evidence casting light on how the email could have been sent if it was not written and sent by Mr Kohacek.

The inherent probabilities and improbabilities of Mr Kohacek having sent the email are equivocal. On the one hand, it is improbable that Mr Kohacek would have felt distressed by some inability to convey and give effect to an intention to leave his assets to Ms Cassidy. Mr Kohacek had recent experience in instructing solicitors concerning his will, and in changing his will. [60] On the other hand, the tone and grammatical syntax of the email is consistent with many messages that Mr Kohacek accepts he did send later in 2020 and throughout 2021. In particular, Mr Kohacek’s reference to Ms Cassidy as his “darling daughter” is consistent with some messages that he sent in late 2021. [61]

I do not consider that the evidence before the Court provides an appropriate basis for making any finding about whether or not Mr Kohacek sent the email. [62]

There is no dispute that Mr Kohacek and Mr Colley did make new wills on 9 June 2020 under which each appointed the other as his executor and trustee, and each left the whole of his estate to the other. If the other pre-deceased him, each appointed Ms Cassidy and her daughter as his executor and trustee, and left his estate to Ms Cassidy or, if Ms Cassidy also pre-deceased him, to her daughter and Mr White in equal shares. These wills were prepared by Turner Freeman and witnessed by Mr Mann. Each will contained a clause recording the testator’s wish that the trustee retain Turner Freeman to carry out all legal work in relation to the administration of his estate and the trusts in his will.

Mr Kohacek gave inconsistent evidence about the reason why he and Mr Colley made those new wills.

In his affidavit sworn on 15 March 2024, Mr Kohacek deposed that “not long after” he and Mr Colley signed the Heads of Agreement, Ms Cassidy and Mr White said “you need to make new wills and give us Powers of Attorney and Guardianship … We need these documents so we can bury you … Don’t worry my friend Anita Munns will draw those up for you”. In the same affidavit, Mr Kohacek deposed that Mr White took him to a solicitor in Windsor shortly after that conversation in May 2020 and told him: “I can’t come inside but this is what you have to say. You are making us beneficiaries with Tyrrell’s daughter. You have to make us Powers of Attorney and Guardians so that I can bury you. It can be cancelled within 48 hours if you are not happy with it.”

In his affidavit sworn on 5 August 2024, Mr Kohacek deposed that Mr White had asked to be a beneficiary under their wills in a conversation to the following effect:

In cross-examination, Mr Kohacek gave evidence that he chose to change his will in June 2020, and he did so happily, because he liked Ms Cassidy “very, very much. And – and – she – and I thought she was doing the right thing. And – and she asked me to make the will. Mr White asked me that he wants the same deal as … Ms Qiu had. He wanted the same deal. He called it a deal. To me, it wasn’t a deal. It was meant more than a deal. And so, I obliged, because I thought that was correct. But – but I was asked to change that will after that again.”

Mr White and Ms Cassidy both gave evidence denying that they ever requested Mr Kohacek or Mr Colley to change their wills. Mr White gave evidence denying taking Mr Kohacek to see a solicitor in May 2020 and having a conversation along the lines to which Mr Kohacek deposed. In his affidavit sworn on 15 December 2023, Mr White deposed that Mr Kohacek and Mr Colley informed him of the amended wills after the fact, and said that the change had been Mr Kohacek and Mr Colley “living up to our end of the bargain”.

I reject Mr Kohacek’s evidence referred to at [192] above, which seems to me to be a confused compilation of recollections arising out of events that occurred in July 2021 when Messrs Kohacek and Colley executed enduring powers of attorney and enduring guardian appointments that were prepared by Ms Anita Munns, solicitor of John Hall Lawyers, and in April 2022 when Mr Kohacek engaged Paine Ross & Co, solicitors, at Windsor to act on his behalf in revoking the enduring power of attorney and enduring guardian appointment and making a further new will under which Mr White and Ms Cassidy received no benefit. [63] The offices of Turner Freeman, who prepared the wills executed by Messrs Kohacek and Colley on 9 June 2020, are located at Penrith.

However, I accept as inherently probable Mr Kohacek’s evidence given in cross-examination that Ms Cassidy asked him to change his will and that Mr White had told him that he wanted the same “deal” as Ms Qiu, which had included Ms Qiu being a beneficiary of the estate of the survivor of Messrs Kohacek and Colley. It is inherently probable, in my opinion, because Turner Freeman had apparently declined or failed to prepare a contract for sale of land containing the terms set out in the Heads of Agreement and, on Mr White’s and Ms Cassidy’s own evidence, they viewed wills under which the Property would pass to them following the death of both Mr Kohacek and Mr Colley as another route to ultimately owning the whole of the Property. [64]

It is clear from Mr Kohacek’s own evidence in cross-examination and from his contemporaneous communications with Mr White and Ms Cassidy that he understood the substance and effect of the will that he made on 9 June 2020. [65]

It will be recalled that clause 6(e) of the Heads of Agreement provided that Mr White and Ms Cassidy were responsible for monthly interest payments on the Commonwealth Bank loan secured against the Property, until they were in a position to extinguish the loan from the proceeds of sale of properties they owned at Condobolin and Orange.

On 10 December 2020, Ms Cassidy completed the sale of the property at Orange referred to in clause 6(e). The net proceeds of sale were $215,988.68. After the mortgage was discharged, a net profit of $70,000 to $80,000 remained. Mr White and Ms Cassidy gave evidence that they would not have sold the Orange property if it was not for the Heads of Agreement.

In cross-examination, however, Ms Cassidy gave evidence that the net proceeds were deposited into Mr White’s Westpac account and put towards “a few things”, and that the Orange property was sold in order to provide for those various things. Ms Cassidy was evasive about what those “things” were. She initially denied that the Orange property had been sold to fund renovations of Fitzgerald House – a property at Windsor that she and Mr White owned through a company. Moments later, Ms Cassidy said that some of the money went towards “doing things” at their Phegans Bay property, some of the money was “used at Fitzgerald House” and some of it “was just spread over a lot of things”. In a non-responsive, evasive answer to the next question, Ms Cassidy added: “But some of it went to the Wilberforce property”.

It was within the power of Mr White and Ms Cassidy to adduce evidence of the amount of the net sale proceeds (if any) that was spent on the Property. They did not do so. I am not persuaded by Ms Cassidy’s evasive and inconsistent evidence in cross-examination that any of the net sale proceeds were spent on the Property. Nor am I persuaded that the sale of the Orange property had connection with the Heads of Agreement that Mr White had signed with Messrs Kohacek and Colley more than a year earlier, in the absence of any cogent evidence that the net sale proceeds were applied to reducing the Commonwealth Bank loan secured by mortgage against the Property or were applied to the Property in some other way.

On 17 December 2020, Mr Kohacek sent a text message to Mr White and Ms Cassidy stating (errors in original):

In his 5 August 2024 affidavit, Mr Kohacek denied sending this message. However, in re-examination, he accepted that he had sent the text and did so because:

As the plaintiffs submitted, Mr Kohacek had not referred to any such conversations with Ms Cassidy in any of his affidavits sworn in these proceedings. For that reason, and for the further reasons explained at [30]-[31] above, I am not persuaded that those conversations occurred.

In any event, Mr White subsequently withdrew the Condobolin Property from the market.

On the morning of 7 July 2021, Ms Anita Munns, solicitor, conferred with Messrs Kohacek and Colley in a zoom conference arranged by Ms Cassidy and took instructions from them for the preparation of enduring powers of attorney and the appointment of enduring guardians. Ms Munns then prepared the relevant documents and met with Messrs Kohacek and Colley at the Property that same afternoon, where she witnessed their execution of those documents.

The documents executed by Mr Kohacek appointed Mr White and Ms Cassidy as his attorneys with immediate effect upon their acceptance of the appointment, and as his legal guardians in the event that he lacked the capacity to make health and lifestyle decisions for himself due to disability or illness. Ms Munns witnessed Mr Kohacek’s execution of both documents and signed the certificate under s 19 of the Powers of Attorney Act 1993 (NSW) in respect of the enduring power of attorney. Each of Mr White and Ms Cassidy signed the enduring power of attorney accepting the appointment.

Ms Munns witnessed Mr Colley’s execution of an appointment of enduring guardian which appointed Mr Kohacek as Mr Colley’s legal guardian, and Mr White and Ms Cassidy as his substitute guardians, in the event that he lacked the capacity to make health and lifestyle decisions for himself due to disability or illness. According to Ms Munns’ file notes of her attendances on Messrs Kohacek and Colley on 7 July 2021, Mr Colley also executed an enduring power of attorney appointing Mr Kohacek, and appointing Mr White and Ms Cassidy in the event that Mr Kohacek was unwilling or unable to accept the appointment. That document was not tendered in evidence.

Ms Munns’ file note of her attendance on Messrs Kohacek and Colley at the Property record that Mr White and Ms Cassidy were also present while Ms Munns explained the documents that Messrs Kohacek and Colley were to execute and witnessed their signatures, although Ms Munns notes that neither of them “took any involvement in the discussions”. The file note records scant details of those discussions or any explanation of the documents that Messrs Kohacek and Colley were executing. The file note records that they gave instructions for Ms Munns to retain the original documents, and email copies of them to Ms Cassidy. Ms Munns was also authorised to collect their original signed wills from Mr Mann and Turner Freeman and to retain them in her custody.

A subsequent file note of Ms Munns records that, upon receiving the original wills from Turner Freeman on or about 2 August 2021, she identified that Mr Colley’s most recent will had been mistakenly dated June 2019 rather than June 2020. This meant that, on the face of it, his most recent will was the one made in October 2019. [66] Ms Munns then prepared new wills for both Messrs Kohacek and Colley on the same terms that they had executed in June 2020, but recording the testator’s wish that the trustee retain Ms Mann’s firm (not Turner Freeman) to carry out all legal work in relation to the administration of his estate and the trusts in his will. [67] Ms Munns attended on Messrs Kohacek and Colley on 3 August 2021, witnessed their execution of those new wills, and received their instructions to hold those new wills in her safe.

I reject the plaintiffs’ submissions that Ms Munns’ file notes of her attendances on Messrs Kohacek and Colley when she witnessed their execution of the enduring powers of attorney, appointments of enduring guardian, and wills, are “compelling objective evidence that Mr Kohacek and Mr Colley, almost two years after the signing of the Heads of Agreement, were each bright, alert, intelligent and shrewd men who knew their own minds.” As I have already said, the file notes provide scant details of the substance of the legal matters that Ms Munns was obliged to explain to Messrs Kohacek and Colley in relation to the powers of attorney and guardian appointments, and her exchanges with them about those legal matters. Moreover, each of the file notes tendered in evidence records that it was amended in May or August 2024, almost or more than three years after it was created and shortly before being exhibited to an affidavit of Mr White sworn on 21 October 2024. There is no evidence of the nature or substance of the amendments that were made to Ms Munns’ file notes. Ms Munns was not called to give evidence.

Mr White gave evidence that he only used the power of attorney on one occasion, at the request of Mr Kohacek to collect documents from his then solicitors. Ms Cassidy deposed that she never used the power of attorney.

Mr White and Ms Cassidy failed to mention that they attempted, after their relationship with Mr Kohacek broke down in April 2022, to use the power of attorney to prevent Mr Kohacek from taking any action to remove them as beneficiaries under his wills or to revoke their appointments as his attorney. As referred to in more detail later in these reasons, [68] Mr White and Ms Cassidy wrote to Ms Munns on 20 or 21 April 2022 claiming that third parties were influencing Mr Kohacek in a way that was detrimental to his wellbeing and was causing him to “turn on” Mr White and Ms Cassidy, expressing a fear that Mr Kohacek would be influenced into revoking the power of attorney and changing his will “with complete disregard for the Heads of Agreement”, and stating (emphasis added):

Ms Munns informed Mr White by email on 26 April 2022 that:

The evidence does not shed any light on whether Ms Munns considered herself to have been acting for both Mr White and/or Ms Cassidy and for Messrs Kohacek and Colley in relation to the enduring powers of attorney, guardianship appointments, and wills in July and August 2021, or whether she considered that she had acted for each of them in separate matters. However, Ms Munns’ email corroborates Mr Kohacek’s evidence that Ms Munns was known to Mr White and Ms Cassidy before she attended on him and Mr Colley in July and August 2021. That lends credibility to Mr Kohacek’s evidence that Mr White and Ms Cassidy insisted that Mr Kohacek engage Ms Munns rather than Mr Mann. It is inherently probable that they did so insist, in circumstances where they had come to view the wills of Messrs Kohacek and Colley as the means by which they would acquire the Property, [69] where their subsequent conduct to which I have referred above indicates that they viewed the enduring power of attorney and guardianship appointment in respect of Mr Kohacek as giving them an additional measure of control over his affairs and any potential changes to his will while he remained alive, and where it is likely that they considered it more convenient to have those documents prepared and the originals retained by Ms Munns, with whom they had some relationship, rather than by Mr Mann, against whom Mr White had recently made allegations of serious misconduct without any apparent basis. [70] For those reasons, I find that Messrs Kohacek and Colley engaged Ms Munns rather than Mr Mann in relation to their enduring powers of attorney and guardianship appointments at the insistence of Mr White and Ms Cassidy.

According to Mr White’s evidence, he undertook various maintenance works on the Property including gardening, repairs and re-gravelling the driveway, he drove Messrs Kohacek and Colley to the shops and to medical appointments, and he organised home care for them. According to Ms Cassidy’s evidence, she assisted in organising home care for Messrs Kohacek and Colley, gardening and generally looking after them, including cooking meals and purchasing supplies.

In his affidavit sworn on 5 August 2024, Mr Kohacek denied this and deposed that Ms Cassidy and Mr White were “constantly invading our home, imposing themselves in our personal space”. However, in cross-examination, Mr Kohacek accepted that “he [Mr White] must have done something. I saw bits … I saw a lot of construction work left there”. Mr Kohacek also accepted that Mr White and Ms Cassidy bought the pair food and other items, but said that he had neither needed nor wanted this and that “[i]t was their choice”.

There is a dispute about the extent of the work that Mr White did at the Property and whether that work was necessary. Mr Kohacek gave evidence that Mr White did whatever he liked at the Property, irrespective of Mr Kohacek’s wishes. He and Mr Colley had wanted to live on the Property peacefully for the rest of their lives, but their lives “turned into hell” as a result of disturbances caused by Mr White working on the Property and renting out parts of the Property.

There is no dispute that Mr White did in fact rent out parts of the Property, and Mr Kohacek contends that Mr White used the rental income to pay for the work he was doing at the Property. By the end of the hearing, the plaintiffs pressed only two items of expenditure on the Property as part of their claim for money had and received: (1) the repair of leaks to the dam in March 2021 at a cost of $777.20; and (2) the purchase of a new ride own mower for the Property in April 2021 at a cost of $3,981.01. There is no dispute about item (1). There is a dispute about item (2), in that there is no evidence of the value of the existing ride on mower owned by Messrs Kohacek and Colley which Mr White and Ms Cassidy took possession of and have retained since purchasing and supplying the new mower.

Mr White and Ms Cassidy each gave evidence that they developed a wonderful relationship with Messrs Kohacek and Colley. Ms Cassidy gave evidence that they were “just like a big family” and “living as a happy family” and that she was “looking after them just like I was their daughter”. Mr White gave evidence that he and Ms Cassidy treated Messrs Kohacek and Colley “like family”, that they became “very close” and it turned into a “beautiful relationship” that was “hard for an outsider to understand”, and that “everything was beautiful until Mr Crawford came along after the death of Ray Colley”. As will be seen below, Mr Kohacek was introduced to Mr Howard Crawford in about January 2022 and developed a close relationship with him in the months after Mr Colley passed away in March 2022.

Despite describing themselves as “living as a happy family” with Messrs Kohacek and Colley, Mr White and Ms Cassidy did not live at the Property at any time after signing the Heads of Agreement.

Mr Kohacek gave evidence under cross-examination that he and Mr Colley became particularly fond of Ms Cassidy in the period after the Heads of Agreement was signed. In the period until at least about mid-2021, he considered that Ms Cassidy had been like a daughter to himself and Mr Colley and he often referred to her as being like a daughter to him, and sometimes as his “darling daughter”. From time to time, Mr Kohacek expressed his affection for Ms Cassidy in text messages to her. For example, he sent a message to Ms Cassidy on 10 December 2020 in which he wrote: “I love you very much and always will. You are my beautiful daughter and how lucky we are to have you by our side.” When Mr Kohacek was shown that message in cross-examination, he could not recall sending such a “stupid” and “childish” message and doubted that he had done so, although he did not accuse Ms Cassidy of having used his phone to send it to herself.

Other text messages that Mr Kohacek sent to Ms Cassidy in 2021 and early 2022 express his love and affection for her, and the pleasure that he took from her company whenever she spent time with him. Mr Kohacek also expressed his and Mr Colley’s appreciation for things she did for them from time to time, such as baking cakes.

Having regard to Mr Kohacek’s contemporaneous text messages and his evidence in cross-examination of his fondness for Ms Cassidy, I do not consider that Mr Kohacek’s affidavit evidence that Ms Cassidy imposed herself on them and invaded their home reflects his feelings at the time. I accept that Mr Kohacek has come to see things that way following the breakdown of his relationship with Ms Cassidy and Mr White.

Mr Kohacek gave evidence denying that Ms Cassidy or Mr White assisted him in caring for Mr Colley. Contrary to the plaintiffs’ submissions, his contemporaneous text messages to Ms Cassidy and Mr White contain no suggestion that they assisted Mr Kohacek with Mr Colley’s personal care.

Mr Kohacek’s contemporaneous text messages indicate that he had strong feelings towards Mr White which ran hot and cold. It suffices to refer to three examples.

On the afternoon of 13 November 2021, Mr Kohacek sent a message to Mr White stating that he would contact the police unless Mr White contacted solicitors acting for a Councillor John Ross to demand the return of certain personal property of Mr Kohacek. In the very early hours of the morning on 14 November 2021, Mr Kohacek then sent a series of text messages to Mr White stating that “my personal connection with you is now over”, and that their “arrangements” going forward “will be purely on our agreement Of which we signed”. In his final message that morning, Mr Kohacek stated:

In his 5 August 2024 affidavit, Mr Kohacek denied sending these messages. However, in cross-examination, he accepted that he did so that “our agreement” was a reference to the Heads of Agreement.

By contrast, Mr Kohacek sent text messages to Mr White on 2 December and 11 December 2021 describing him as “FANTASTIC” and stating “[w]e are now and always together … trying to separate us and to make our lives hard Nobody will ever succeed”.

Mr Colley passed away on 18 March 2022. Mr Kohacek was naturally very distressed.

On 20 March 2022, Mr Kohacek sent a text message to Mr White and Ms Cassidy describing them as “exceptional people” and expressing his gratitude that “I have you both as my family”.

It is common ground that Mr White and Ms Cassidy paid a sum of $6,597.60 towards Mr Colley’s funeral expenses.

In December 2021 and January 2022, Mr Kohacek was corresponding by text message with Mr Crawford about Mr Weller, the Hawkesbury City Council and certain Councillors. Mr Kohacek first met Mr Crawford in person at a meeting with a Councillor in January 2022, at which Mr Kohacek raised allegations of ongoing environmental pollution and corruption on the part of the Council, which he considered had failed to deal with the problem. Mr Crawford subsequently began looking through some of Mr Kohacek’s documents at his request. By mid-February 2022, Mr Kohacek was sending messages to Mr White telling him that he had found new evidence about the Council, Tuscany Foods and pollution that had not been disclosed to him at the time of his earlier legal proceedings, and that he had “hit the jackpot for conpensation [sic]”.

Mr Crawford gave evidence that, as he spent more time at the Property speaking with Mr Kohacek and reviewing his documents in the period before and after Mr Colley’s death, he became concerned by what he regarded as bullying and controlling behaviours of Mr White and Ms Cassidy towards Mr Kohacek, and he formed the view that Mr Kohacek was being abused and exploited by Mr White and Ms Cassidy. One example raising concern was Mr Kohacek’s comment to Mr Crawford that “they [Mr White and Ms Cassidy] are constantly monitoring me and I can get no privacy”.

Mr White gave evidence that, at this same time, he became concerned about the influence that he perceived Mr Crawford was having on Mr Kohacek. As I have mentioned above, Mr White blames Mr Crawford for the breakdown of his and Ms Cassidy’s relationship with Mr Kohacek in April 2022. [71]

There is much dispute between Mr Kohacek on the one hand and Mr White and Ms Cassidy on the other hand about the manner in which they behaved towards one another, and the terms of their conversations with one another, in the days leading up to what has proved to be a terminal breakdown in their relationship on the evening of 20 April 2022. It is not necessary to make findings about all of those disputed matters of detail, and I refer only to the salient matters below.

According to the evidence of both Mr White and Mr Crawford, Mr White overheard a conversation between Mr Kohacek and Mr Crawford, who was visiting Mr Kohacek at the Property, late on the evening of 17 April 2022. Mr Crawford had asked Mr Kohacek why he did not sell the Property and move back to the city. Mr White interrupted, informing Mr Crawford about the Heads of Agreement and stating that he and Ms Cassidy had an interest in the Property. According to Mr White, he said that he and Ms Cassidy had a financial interest in the Property. According to Mr Crawford, Mr White said that he owned the Property.

According to the evidence of Mr Kohacek and Mr Crawford, Mr White interrupted their conversations several times late the following evening and in the early hours of 19 April 2022, stating that everything he had done was in the Heads of Agreement, asserting that he owned the Property, and stating that he needed a caveat on the Property. Mr Crawford told Mr White that if he needed a caveat, he should get one. Both Mr Crawford and Mr Kohacek describe Mr White as behaving in an irate and aggressive manner during these exchanges, and slamming his fists into the table. Mr White gave evidence that he had only ever met Mr Crawford once, on the occasion of their encounter on 17 April 2022, and said that Mr Kohacek and Mr Crawford had made up stories about him slamming his fist on the table, saying that the Property was his, and demanding a caveat.

At about 8:00pm on the evening of 19 April 2022, Mr White sent a text message to Mr Crawford in the following terms (emphasis added):

In my opinion, the tone and content of that text message renders it inherently improbable that Mr White had behaved aggressively towards Mr Kohacek and Mr Crawford in the manner they allege the previous evening. I am not persuaded that any exchange of the kind they describe occurred in the late hours of 18 April into the early hours of 19 April 2022. However, Mr Kohacek’s text messages to Mr White on 20 April 2022 which I mention below refer to Mr White having said that he wanted to lodge a caveat on the Property. On the basis of that contemporaneous documentary evidence, I find that Mr White did say to Mr Kohacek on more than one occasion in the days leading up to 20 April 2022 that he would lodge a caveat against the title to the Property. It is plain from the passage in Mr White’s text message to Mr Crawford that I have emphasised above, that he considered that he and Ms Cassidy would be able to exercise the enduring power of attorney to prevent Mr Kohacek from engaging in future litigation on terms that affected what they viewed as their financial interest in the Property.

There was an argument between Mr Kohacek and Mr White on the afternoon of 20 April 2022, following which Mr Kohacek told Mr White to leave the Property. Ms Cassidy remained at the Property, intending to stay there that evening.

At 4:16pm that afternoon, Mr White sent a message to Mr Kohacek apologising for the misunderstanding that had led to their argument. Mr Kohacek replied to Mr White in the following terms:

Mr White replied:

Mr Kohacek replied:

Mr Kohacek attended Windsor police station at 8.30pm on 20 April 2022 alleging that Mr White and Ms Cassidy had coerced him to sign documents such as appointment of enduring guardian papers, and that a solicitor had also coerced him to sign those papers. The police advised Mr Kohacek that it was not a police issue, and that he should raise his concerns with a solicitor.

Ms Cassidy learned about this later that evening after Mr Kohacek returned to the Property, where she had been sleeping.

Ms Cassidy then contacted Mr White and they went together to Windsor police station at about 10:45pm that evening. According to the police record in the COPS database, Ms Cassidy was upset and told police that Mr Kohacek had informed her that she was wanted by police for elder abuse against him. The police informed Ms Cassidy that she was not wanted by police, and that they had advised Mr Kohacek to speak to his solicitor as it is a civil matter. The COPS database records that Ms Cassidy and Mr White informed the police that they believed other persons were attempting to have Mr Kohacek change the power of attorney.

Mr Kohacek changed the locks on the Property on 21 April 2022.

Under cross-examination, Mr Kohacek said that his relationship with Mr White and Ms Cassidy broke down after Mr Colley’s death because “I was treated like a child. I was treated as if I had no brain. I was told what to do, what not to do, when to do it, and I got sick of it because I’ve asked them to leave many times before this. I got sick of it. I said, ‘I will not be dominated by anybody.’”

Mr Kohacek’s dislike of being told what to do was a recurring theme throughout his cross-examination. He described himself as a “strong-willed man” and said that “I don’t like people telling me what to do”. When asked about his willingness to seek advice from others, Mr Kohacek initially said that he liked advice and guidance from others, but then said: “I don’t seek advice. I think I’ve got enough in my brain to work out right from wrong. I don’t have to seek anybody’s advice. I’m not mental.”

As referred to earlier in these reasons, Mr White and Ms Cassidy wrote to Ms Munns on 20 or 21 April 2022 claiming that third parties were influencing Mr Kohacek in a way that was detrimental to his wellbeing and was causing him to “turn on” Mr White and Ms Cassidy, expressing a fear that Mr Kohacek would be influenced into revoking the power of attorney and changing his will “with complete disregard for the Heads of Agreement”, and stating (emphasis added):

Mr White informed Mr Kohacek by email on 22 April 2022 that he and Ms Cassidy had “signed a written request as Power of Attorney, concerned for your well being, to have you medically assessed and provided it to your solicitor.” I infer from his earlier correspondence with Ms Munns that Mr White’s reference to “your solicitor” in his email to Mr Kohacek is a reference to Ms Munns. Mr Kohacek replied:

As referred to earlier in these reasons, Ms Munns sent an email to Mr White on 26 April 2022 stating:

On 28 April 2022, Mr White applied to the New South Wales Civil and Administrative Tribunal to appoint the New South Wales Trustee and Guardian as financial manager for Mr Kohacek. Mr White gave evidence in cross-examination that he was concerned at this time that Mr Kohacek was financially vulnerable by reason of Mr Crawford, who Mr White believed was influencing Mr Kohacek. In the application form, Mr White recorded the value of the Property as $3 million.

On 28 April 2022, Mr Kohacek consulted Mr Chris Paine of Paine Ross & Co, solicitors, at Windsor. Mr Kohacek executed a Deed of Revocation of Appointment of Enduring Power of Attorney and a Deed of Revocation of Appointment of Enduring Guardian. Mr Paine sent a copy of those documents to Ms Munns by email that afternoon.

On about 4 May 2022, Mr White applied to the New South Wales Civil and Administrative Tribunal to review Mr Kohacek’s decision to revoke the Enduring Power of Attorney. In the application form, Mr White recorded the value of the Property as $3 to $3.5 million.

On 6 May 2022, Mr Kohacek executed a new will prepared by Paine Ross & Co under which he appointed Mr Crawford as his executor and trustee, made a gift of $500,000 to Mr Kim Woollard, and left the residue of his estate to Mr Crawford. Mr Kohacek later executed a codicil to that will on 21 April 2023 which revoked the $500,000 gift to Mr Woollard, but otherwise did not alter the will. Mr Crawford gave evidence in cross-examination that he first became aware that he was a beneficiary under Mr Kohacek’s will in the course of preparing to appear as a witness in these proceedings in October 2024. He was not challenged on that evidence.

On 5 May 2022, Mr White wrote to Mr Paine at Paine Ross & Co referring to the Tribunal proceedings that he and Ms Cassidy had initiated to review Mr Kohacek’s revocation of the enduring power of attorney. Mr White’s letter stated (emphasis in original):

Mr Kohacek consulted his doctor on 16 June 2022. The doctor issued a certificate stating that he had administered an MMSE with a normal result. The certificate stated that Mr Kohacek, who had been the doctor’s patient since October 2018, “has a good memory” and “does not suffer with any sort of Cognitive Impairment”, and that he had seen a psychologist who had confirmed that “he does not suffer with any mood disorders or psychiatric illness which will affect his ability to make a decision.”

On 30 August 2022, the Guardianship Division of the Tribunal decided to conduct a review of the revocation of the power or attorney, but decided not to make any finding regarding whether the revocation was validly made. The Tribunal’s reasons for decision state:

In relation to the application for the appointment of a financial manager, the Tribunal determined to appoint the NSW Trustee and Guardian as financial manager of Mr Kohacek’s estate, excluding his pension, on an interim basis for a period of six months, following which the matter would be listed for final hearing. The Tribunal referred to shortcomings in the medical evidence submitted by Mr Kohacek in opposing the financial management order, stating:

On 15 February 2023, the Tribunal determined not to continue the appointment of the financial manager. The Tribunal’s reasons for decision stated:

Mr White and Ms Cassidy lodged two caveats against the title to the Property on 15 February 2023 – the Constructive Trust Caveat (dealing ASXXXXXX), and the Funds Advanced Caveat (dealing ASXXXXXX).

In April 2023, Mr Kohacek’s solicitors served Mr White’s solicitors lapsing notices for the Constructive Trust Caveat and the Funds Advanced Caveat.

Mr White and Ms Cassidy commenced these proceedings on 3 May 2023.

Mr White and Ms Cassidy contend that the Heads of Agreement was intended to create legal relations, and that it is a valid, binding and enforceable contract. By the conclusion of the hearing, Mr White and Ms Cassidy had abandoned their pleaded claims for declarations to the effect that certain terms of the Heads of Agreement were varied, or waived by Mr Kohacek, after it was entered into. As referred to earlier in these reasons, Mr White and Ms Cassidy seek a declaration that the Heads of Agreement is a valid and enforceable agreement, and orders for specific performance of that agreement in terms requiring Mr Kohacek to transfer to them a one-third interest in the Property, and requiring Mr White and Ms Cassidy to pay such amount to the Commonwealth Bank as is required to discharge the mortgage over the Property.

Mr Kohacek contends that the parties did not intend to create binding legal relations by entering into the Heads of Agreement.

The Court of Appeal explained the relevant principles in the following terms in Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd: [72]

It was submitted on behalf of Mr White and Ms Cassidy that the Heads of Agreement falls within the first category or the fourth category referred to above. That submission relies on: (1) the words “[t]his agreement” in clauses 1 to 4 of the Heads of Agreement; (2) clause 3 of the Heads of Agreement, which provides that “[t]his agreement is commenced” with the $5,000 payment by Mr White and the signing and dating of “this agreement” by Mr White and Messrs Kohacek and Colley; (3) the statement in clause 4 that “[t]his agreement is to be converted into an agreement for the sale of land” as indicating an intention to be immediately bound albeit that the terms will be restated more fully in a contract for the sale of land, which will also contain the additional terms referred to in clause 6; and (4) the cooling off period.

It was submitted on behalf of Mr Kohacek that the Heads of Agreement falls within the third category referred to above, namely that the parties did not intend to make a concluded bargain at all unless and until they entered into a formal contract.

In my opinion, a reasonable person in the position of the parties would not have taken them to have intended by signing the Heads of Agreement to enter into a binding contract for the sale of a one-third interest in the Property to Mr White and Ms Cassidy and for an “irrevocable right of survivorship” in favour of Mr White and Ms Cassidy in respect of the remaining two-thirds interest in the Property.

As counsel for Mr Kohacek submitted, the usual method of selling interests in real property in New South Wales is by the execution and exchange of formal contracts in the form approved by the Real Estate Institute and the Law Society of New South Wales. Clause 4 of the Heads of Agreement expressly provided that the parties would enter into a formal contract prepared by the solicitors for Messrs Kohacek and Colley, and clause 6(c) expressly provided that exchange of contracts was conditional on: (1) execution of the formal contracts (which were yet to be prepared); and (2) Mr White and Ms Cassidy extinguishing the liability of Messrs Kohacek and Colley to Mr Corbett.

Contrary to the plaintiffs’ submissions, Mr White’s use of the words “[t]his agreement” in the drafting of the Heads of Agreement, and his description of it as an “agreement that is to be converted to” a contract for the sale of land, does not overcome those features of the substance of the terms referred to above which, in my opinion, clearly indicate that the parties did not intend by signing the Heads of Agreement to conclude an agreement for the sale of a one-third interest in the Property to Mr White and Ms Cassidy and for an “irrevocable right of survivorship” in their favour in respect of the remaining two-thirds interest in the Property.

I reject the plaintiffs’ submission that the cooling off clause would indicate to the reasonable person that the parties intended to conclude such an agreement immediately upon signing the Heads of Agreement. The reasonable person, having regard to the subject matter of the Heads of Agreement and its terms as a whole, including those referred to at [273] above, would understand the parties to have intended by the cooling off clause that either of them was free to renounce their intention recorded in the Heads of Agreement to work towards the preparation and exchange of formal contracts. [73]

In my opinion, the following elements of the parties’ conduct after signing the Heads of Agreement provide further support for declining to attribute to the parties an intention as at 10 September 2019 to conclude an agreement for the sale of a one-third interest in the Property and the grant of an “irrevocable right of survivorship” in respect of the remaining two-thirds interest.

First, no stamp duty was paid on the Heads of Agreement. Second, Mr White and Ms Cassidy requested that formal contracts be prepared for their consideration in March 2020 after paying the amounts owing by Messrs Kohacek and Colley to Mr Corbett, which indicates that they did not intend the Heads of Agreement signed by Mr White to be a binding contract entitling them to the transfer of a one-third interest in the Property and to receive the rest of the Property by an “irrevocable right of survivorship”. [74] Third, the sale proceeds of Ms Cassidy’s property at Orange were not applied to reduce the Commonwealth Bank loan secured by mortgage against the Property in December 2020, [75] and this was not the subject of any complaint by Messrs Kohacek and Colley. That would indicate that the parties did not intend by signing the Heads of Agreement to create a binding obligation on Ms Cassidy to sell the Orange property and use the proceeds to pay down that loan. Fourth, Mr White did not sell the Condobolin property. Again, this was not the subject of any complaint by Messrs Kohacek and Colley, indicating that the parties did not intend by signing the Heads of Agreement to create a binding obligation on Mr White to do so and to use the proceeds to pay down that loan secured by mortgage over the Property. [76]

That no steps were ever taken by any party to prepare and exchange formal contracts does not support the conclusion that the parties had the requisite intention to be bound by the Heads of Agreement to complete the transaction which that document provided would be the subject of a formal contract. The parties’ conduct after the signing of the Heads of Agreement, viewed as a whole, supports an inference that they abandoned their intention to enter into the contract contemplated by the Heads of Agreement, in circumstances where Messrs Kohacek and Colley made wills benefitting Ms Cassidy in June 2020 which would cause the Property to be transferred to Ms Cassidy after the death of the survivor of Mr Kohacek and Mr Colley (or to Ms Cassidy’s daughter and Mr White if Ms Cassidy predeceased both Mr Kohacek and Mr Colley). As referred to earlier in these reasons, Mr White gave evidence that he was satisfied with this. [77]

Mr Kohacek’s text messages to Mr White referring to the Heads of Agreement as “our agreement” and “a legal agreement” were sent in the very early hours of the morning of 14 November 2021 and apparently in the heat of Mr Kohacek’s displeasure about Mr White’s response to his request for some action to be taken against Councillor John Ross. [78] I do not consider that those messages carry any weight as admissions of Mr Kohacek’s intentions more than two years earlier when he and Mr Colley signed the Heads of Agreement, particularly in light of Mr White’s assessment of Mr Kohacek as “an honourable old Italian” who “gets intoxicated and texts.” [79]

For all of those reasons, I accept the submission made on behalf of Mr Kohacek that a reasonable person in the position of the parties would have taken them to have intended to enter into a binding agreement for the sale of a one-third interest in the Property and the grant of an “irrevocable right of survivorship”, not upon signing the Heads of Agreement, but only upon execution and exchange of formal contracts for the sale of land prepared by a solicitor, if and when Mr White and Ms Cassidy extinguished the liability of Messrs Kohacek and Colley to Mr Corbett. The Heads of Agreement therefore falls into the third category identified in Masters v Cameron, as was submitted on behalf of Mr Kohacek. The plaintiffs’ claims for a declaration that the Heads of Agreement is a valid and enforceable agreement for the sale of a one-third interest in the Property, and an order that it be specifically performed by the transfer of a one-third interest in the Property to the plaintiffs within 90 days, must be dismissed.

If I had concluded that the Heads of Agreement was a binding contract for the sale of a one-third interest in the Property and the grant of an “irrevocable right of survivorship” in favour of Mr White and Ms Cassidy, contrary to my determination above, I would have upheld Mr Kohacek’s claim of unconscionability and set aside the Heads of Agreement on that basis, on terms requiring Mr Kohacek to do equity by paying to Mr White and Ms Cassidy a sum equivalent to the total of the amounts referred to at [310].

As Kiefel CJ, Bell, Gageler, Keane and Edelman JJ said in Thorne v Kennedy: [80]

These considerations are not to be applied as if they were separate elements of a cause of action. Each case calls for a precise examination of its particular facts, including the relationship between the parties, and the circumstances of the party who is said to have been vulnerable by reason of a special disadvantage. [81] There are no fixed or closed categories of circumstances that might constitute a special disadvantage but, in this context, “special disadvantage” means something that “seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests”. [82]

In determining whether one party has unconscientiously taken advantage of a special disadvantage of the other, it is necessary to consider whether the first party had actual knowledge of, or was wilfully ignorant of, the special disadvantage, or had constructive knowledge of that special disadvantage in the sense that they had knowledge of facts from which they ought to have known that the other party was suffering under the particular special disadvantage. Constructive notice – where the first party is on notice of facts that might lead on inquiry to discovery that the other party has a special disadvantage – will not suffice. [83]

Where a special disadvantage is established and shown to have been exploited, making it prima facie unconscientious for the stronger party to have procured or accepted the weaker party’s assent to the impugned transaction, an evidentiary onus falls on the stronger party to show that the transaction was fair, just and reasonable. [84]

At the time they signed the Heads of Agreement, Mr Kohacek was aged 78 years and Mr Colley was aged 88 years. Mr Colley’s health had been declining since at least 2015. Although Mr Colley was not wholly dependent on Mr Kohacek for his personal care, Mr Kohacek was providing a significant and increasing level of care for Mr Colley, without any support from family members. They had become indebted for legal fees in pursuing litigation in which their claims had failed. As Mr White assessed their circumstances at the time, Mr Kohacek had an “intensity to commence legal proceedings” and enter into costs agreements which he and Mr Colley could not afford, rendering them financially vulnerable to the solicitors to whom they then owed those legal fees. In September 2019, they had no means of paying the debts that they had accrued out of their aged pension, which was their only source of income. They were at risk of having to sell their only asset, which had been their home since 1979 and to which they were emotionally attached. I have accepted Mr Kohacek’s evidence that he was struggling under the weight of the pressures generated by their debts and his increasing care responsibilities for Mr Colley, that he was sleep-deprived and very tired, that he felt that he was not coping well, and that he found it difficult to make decisions. I have found that Messrs Kohacek and Colley were suffering under financial and emotional pressure, which they felt to be immense, as a result of all of those circumstances taken together. As their dealings with Ms Qiu demonstrated, they were vulnerable to promising to bequeath their home to strangers who appeared to extend a hand of friendship (bringing meals and offering advice in the case of Ms Qiu, and conversation about a shared complaint in the case of Mr White) and to offer to absolve them of the pressure of their debts in a way that would not require them to sell their home during their lifetime. [85] In my opinion, all of those matters considered as a whole constituted a special disadvantage which seriously affected their ability to make a judgment as to whether or not it was in their best interests to enter into the Heads of Agreement recording their intention to enter into a contract to sell to Mr White and Ms Cassidy a one-third interest in the Property, for a price struck without a current market valuation of the Property, on terms that were heavily weighted in favour of Mr White and Ms Cassidy for all of the reasons I have already explained, and that included Messrs Kohacek and Colley embracing the prospect of Mr White (a near-stranger to them) and Ms Cassidy (a total stranger to them) caring for their wellbeing and assisting with their ongoing health issues as if they were family members . [86] I accept Mr Kohacek’s submissions to that effect. In my opinion, Mr Kohacek’s view of himself as a strong-willed man who knows his own mind and is capable of making decisions compounded his vulnerability at the time by giving him an unfounded sense of confidence in decisions that he made while suffering from the special disadvantage. [87]

I have found that Mr White had actual knowledge of the immense financial and emotional pressure under which the two elderly gentlemen were struggling at the time they signed the Heads of Agreement. [88]

In my opinion, Mr White unconscientiously took advantage of the special disadvantage of Messrs Kohacek and Colley by proposing to them that they enter into an arrangement with himself and Ms Cassidy that would confer on them what he considered to be a “windfall”, by presenting the Heads of Agreement to them to be signed immediately after drafting it on terms that were advantageous to himself and Ms Cassidy and disadvantageous to Messrs Kohacek and Colley, by insisting on incorporating into the Heads of Agreement a valuation of the Property which Mr White believed was less than the market value of the Property over the objection of Mr Kohacek, and by discouraging them from seeking legal advice before signing the document. In short, Mr White sought to achieve for himself and Ms Cassidy the same “substantial windfall” that he considered Ms Qiu had negotiated through exploitation of Messrs Kohacek and Colley. [89]

The cooling off period provided for in the Heads of Agreement did not outweigh or compensate for the special disadvantage under which Messrs Kohacek and Colley were suffering. Nor did it alleviate the effect of Mr White’s conduct in unconscientiously taking advantage of that special disadvantage. Mr White’s knowledge of the nature of that special disadvantage ought to have made it obvious to him that Mr Kohacek and Mr White were unlikely to revisit their decision to embrace his proposal by seeking legal advice within five days after signing the Heads of Agreement.

At the time the Heads of Agreement was signed, Ms Cassidy had not met Messrs Kohacek and Colley. However, she knew that they were elderly and had debts, and she was aware from the terms of the Heads of Agreement that Mr White showed to her that they were contemplating being reliant on her (a total stranger) and Mr White (a near-stranger) to care for their wellbeing and assist with their health problems, and ultimately transferring the whole of the Property to her and Mr White. Ms Cassidy was content for him to procure Mr Kohacek and Mr Colley’s execution of that document without prior legal advice. There is no evidence that Ms Cassidy personally took any step to encourage Mr Kohacek and Mr Colley to obtain legal advice within the cooling off period, which she knew was included in the Heads of Agreement. The submissions made on behalf of Mr White and Ms Cassidy in relation to Mr Kohacek’s unconscionability claim did not seek to distinguish between the position of Mr White and Ms Cassidy. In my opinion, Ms Cassidy had had constructive knowledge of the special disadvantage of Messrs Kohacek and Colley, and equity would not permit her to enforce the Heads of Agreement (if it were legally binding, contrary to my determination above) that was procured by the unconscionable conduct of Mr White, acting on behalf of himself and Ms Cassidy. [90]

For the reasons explained at [141]-[147] and [152]-[153] above, Mr White and Ms Cassidy have not discharged their onus of showing that the Heads of Agreement was fair, just and reasonable.

For all of those reasons, I would have set aside the Heads of Agreement on the grounds of unconscionability if I had determined that it was legally binding, subject to Mr Kohacek doing equity by paying to Mr White and Ms Cassidy a sum equivalent to the total of the amounts referred to at [310].

Counsel for Mr Kohacek correctly acknowledged that his claim to set aside the Heads of Agreement on the grounds of undue influence invokes principles that are distinct from the principles applicable to unconscionability. Counsel nevertheless made no submissions addressing the central question raised by Mr Kohacek’s claim of undue influence: Were the acts of Messrs Kohacek and Colley in signing the Heads of Agreement “free”, or were they deprived of free choice by pressure exerted on them by Mr White causing them substantially to subordinate their will to the will of Mr White and Ms Cassidy? [91]

In light of my conclusions that the Heads of Agreement is not legally binding, and that it would be set aside on the grounds of unconscionability even if it had been held to be binding, it is not necessary to determine whether the Heads of Agreement would also be void or voidable on the grounds of undue influence. Had it been necessary to do so, I would have held that, although Mr White’s conduct in procuring Mr Kohacek and Mr Colley’s signatures to the Heads of Agreement exploited the special disadvantage under which he knew that Messrs Kohacek and Colley were suffering, it did not exert such pressure on them as to deprive them of free choice. Mr White’s conduct caused them to make a choice, in circumstances where their ability to judge whether that choice was in their own best interests was seriously impaired by their special disadvantage.

Section 7(1) of the Contracts Review Act 1980 (NSW) provides:

Section 9 of the Act sets out various matters to be considered by the Court in determining whether the contract, or a provision of the contract, is unjust in the circumstances relating to the contract at the time it was made.

The evaluative process required was explained in the following terms by Allsop P in Provident Capital Ltd v Papa: [92]

It is not necessary to determine Mr Kohacek’s cross-claim relying on the Contracts Review Act in my view of my conclusions above. If I had determined that the Heads of Agreement was legally binding, then I would have held that, in addition to being liable to be set aside on the grounds of unconscionability, the Heads of Agreement was unjust in the circumstances relating to it at the time it was made for all of the reasons explained at [286]-[291] above. In particular, I would have held that: the circumstances constituting the special disadvantage of Messrs Kohacek and Colley gave rise to a material inequality of bargaining power between them and Mr White (s 9(2)(a)); that although Mr White read through the provisions of the Heads of Agreement with Messrs Kohacek and Colley before they signed it, those provisions were not the subject of negotiation (s 9(2)(b)); that those provisions were not properly explained to Messrs Kohacek and Colley by Mr White who discouraged them from seeking legal advice (s 9(2)(h) and (i)); that it was an unfair tactic of Mr White to present to them the Heads of Agreement which he had drafted and encourage them to sign it without explaining it to them, without the benefit of legal advice, and without even an opportunity to discuss it between themselves in Mr White’s absence (s 9(2)(j)); and that at least clause 6(k) of the Heads of Agreement was not reasonably necessary for the protection of the legitimate interests of Mr White and Ms Cassidy (s 9(2)(d)). I would have refused to enforce the provisions of the Heads of Agreement, conditional upon Mr Kohacek paying to Mr White and Ms Cassidy a sum equivalent to the total of the amounts referred to at [310].

Mr White and Ms Cassidy rely on the doctrine of proprietary estoppel by encouragement.

In order to succeed in that claim, Mr White and Ms Cassidy must establish: [93]

The representations on which Mr White and Ms Cassidy claim to have relied are contained in the Heads of Agreement, or were made in the context of and clearly with reference to the Heads of Agreement. [94]

Mr White and Ms Cassidy did pay the debts that Messrs Kohacek and Colley owed to solicitors, made monthly payments to the Commonwealth Bank, paid some of the costs associated with maintaining and insuring the Property, and undertook certain work on the Property. Mr White and Ms Cassidy also provided company for Messrs Kohacek and Colley. Ms Cassidy provided food for them from time to time. Mr White was a listening ear for Mr Kohacek’s complaints against the local council and others who he considered had done wrong by him. [95] Those actions of Mr White and Ms Cassidy were referable to the Heads of Agreement.

As counsel for Mr Kohacek submitted, equity will not grant relief to avoid detriment that Mr White and Ms Cassidy will otherwise suffer as a result of relying on the Heads of Agreement, and statements by Messrs Kohacek and Colley referable to the Heads of Agreement, in circumstances where Mr White and Ms Cassidy unconscionably procured their signature to that document for the reasons I have explained above. The plaintiffs’ proprietary estoppel claim must therefore be dismissed. To the extent that Mr White and Ms Cassidy conferred benefits on Messrs Kohacek and Colley that are quantifiable in monetary terms, they are entitled to restitution, as counsel for Mr Kohacek accepted.

Mr White and Ms Cassidy’s alternative claim for relief based on a “joint endeavour constructive trust” required them to demonstrate: [96]

It is necessary to identify the nature, scope and purpose of the alleged understanding between the parties that is said to constitute the joint endeavour, although the scope of that understanding may change from time to time. [97]

The Heads of Agreement sets out the foundation and scope of the joint endeavour on which Mr White and Ms Cassidy rely. Unconscionability being the ultimate basis for the imposition of a joint endeavour constructive trust, equity will not grant the relief sought by Mr White and Ms Cassidy on the basis of a joint endeavour constructive trust in circumstances where the joint endeavour is the product of their unconscionable conduct for the reasons I have explained above.

I do not find it necessary to address the further difficulty that the relief sought by Mr White and Ms Cassidy on the basis of a joint endeavour constructive trust would have delivered to them a greater interest in the Property during Mr Kohacek’s lifetime than had been contemplated by the Heads of Agreement.

The plaintiffs’ common intention constructive trust claim must fail for the same reason – the intention that Mr White and Ms Cassidy would have some proprietary interest in the Property is founded in the Heads of Agreement, which is tainted by the unconscionable conduct of Mr White and Ms Cassidy and which would have been set aside on that basis if it had been legally binding. [98]

In light of that conclusion, it is not necessary for me to address the further difficulty that the relief sought by Mr White and Ms Cassidy on the basis of a common intention constructive trust would have delivered to them a greater interest in the Property during Mr Kohacek’s lifetime than had been contemplated by the Heads of Agreement. Nor is it necessary for me to express any view about whether a common intention constructive trust is even available under Australian law in circumstances where proprietary estoppel has been rejected. [99]

Mr Kohacek accepts that Mr White and Ms Cassidy are entitled to be reimbursed for the following payments made in connection with the Property and the Heads of Agreement:

The evidence does not provide a sufficient basis for me to find that Mr White and Ms Cassidy are entitled to be reimbursed for any part of the cost of the new ride-on mower purchased in April 2021. [108]

For the reasons I have already explained, Mr White and Ms Cassidy are not entitled to be reimbursed or compensated for their costs incurred in selling the Orange property, or the loss of profit that they claim to have suffered as a result of selling that property in December 2020 rather than continuing to hold it to the present day. [109]

The appropriate basis of those amounts for reimbursement is restitution as money had and received, as counsel for Mr Kohacek acknowledged. Counsel correctly accepted that there is no reason to deny the plaintiffs’ claim for pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on judgment in their favour for moneys had and received.

The submissions made on behalf of the plaintiffs did not address the basis on which they claim to be entitled to an equitable lien over the Property securing payment of the amounts referred to at [310] above. I do not consider that the relevant equitable principles support the recognition of a lien in this case to protect the plaintiffs against loss arising from any difficulty they may otherwise encounter in enforcing judgment against Mr Kohacek to recover those amounts, which the plaintiffs paid in pursuit of a scheme that I have held was founded on their own unconscionable conduct. [110]

As I have mentioned earlier in these reasons, Mr Kohacek’s cross-claim for damages in the amount of $1,000,000 was abandoned on the first day of the hearing.

For all of the foregoing reasons, the Court will make orders to the following effect:

The parties will need to bring in short minutes of order to that effect after agreeing the calculation of the judgment sum in accordance with (1) above and the calculation of the amount of interest in accordance with (2) above. Those short minutes of order should also set out any order that is agreed between the parties as to the costs of the proceedings or, failing agreement, the competing orders sought by the parties as to costs. If the parties propose competing orders in relation to costs, the short minutes of order should be accompanied by each party’s written submissions of no more than three pages in length in support of the costs order for which they contend.