Hans-Egon Bruno Bernhard Metzner & Anor v Jaqueline Rita Metzner

1. [1]

   These proceedings relate to a property in Bowral, NSW (“the Property”). The Property was purchased for $840,000 in May 2017.

2. [2]

   The purchase price (including the deposit) was paid entirely by the Plaintiffs, Mr Hans-Egon Bruno Bernhard Metzner (“Egon”) and Mrs Rita Elisabeth Metzner (“Rita”), but the purchaser was described as Mrs Jaqueline Rita Metzner (known as “Jackie”) and she became, in July 2017, and remains, the registered owner of the Property.

3. [3]

   Egon and Rita claim that Jackie, their daughter, holds the Property on trust for them and they seek the transfer of the Property to them.

4. [4]

   Egon and Rita assert that, notwithstanding they had provided all of the purchase money for the Property and arranged for Jackie to be the purchaser, they agreed with Jackie that Jackie would be registered as the owner of the Property on the basis of:

   1. (1)

      representations made by Jackie that this would prevent Jackie’s sister, Marilyn Barbara Metzner (“Marilyn”), from interfering with Egon’s and Rita’s intention to leave the Property to Jackie when they died, and would avoid payment of stamp duty on the transfer of the Property after their deaths (“the Pleaded Representations”); and

   2. (2)

      Jackie’s promise that she would regard the Plaintiffs as the true owners of the Property if they purchased the Property in her name (“the Pleaded Promise”).

5. [5]

   The Plaintiffs also assert that they agreed to purchase the Property in Jackie’s name on the basis that they would remain the true owners of it until their deaths and that Jackie would inherit the Plaintiffs’ interest in the Property if it was still owned by them when they died.

6. [6]

   The Plaintiffs also assert that:

   1. (1)

      Jackie made no contribution to the cost of acquisition of the Property and that they “purchased the [Property] for their own use and benefit and that they did not intend to give the benefit of the [Property] to [Jackie]” (see paragraphs 9 and 10 of the Statement of Claim);

   2. (2)

      Jackie knew or should have known that they relied on her “to act honestly, prudently, and carefully in their interests” (see paragraph 12 of the Statement of Claim);

   3. (3)

      Jackie:

   4. (4)

      Jackie has taken unconscionable advantage of the Plaintiffs by:

   5. (5)

      Jackie holds her interest in the Property on a resulting or constructive trust.

7. [7]

   Jackie denies that she made the Pleaded Representations or made the Pleaded Promise and she asserts that:

   1. (1)

      the Plaintiffs purchased the Property in her name, told her that they intended it to be a gift to her and intended, in fact, to make a gift of the Property to her;

   2. (2)

      although she did not make a contribution to the cost of the acquisition of the Property, she has made financial contributions to the Property since its purchase, totalling $12,064.02 (see CB 19). It was not, however, asserted that issues of the kind adverted to in cases such as Bloch v Bloch (1981) 180 CLR 390 were relevant in the present dispute,

8. [8]

   Jackie also advances an alternative defence: see CB 20. That alternative defence is that, should the Court conclude that Jackie holds the Property on trust for the Plaintiffs, she only does so for the remainder of their lives, following which the full beneficial interest in the Property vests in her. By that alternative defence, Jackie asserts that the Plaintiffs are not entitled to a transfer of the legal title in the Property, as any such transfer would be inconsistent with the trust. This alternative defence is based upon the words that the Plaintiffs say they used in conversations with Jackie (see the Defendant’s Closing Submissions at paragraph 182); namely:

   1. (1)

      Rita gives evidence that she and Egon said to Jackie in relation to the Property (CB 616, paragraph 61 of Rita’s affidavit of 28 January 2021):

   2. (2)

      Rita gives further evidence that Egon said to Ms Gillian Rendall, a director of The Shire Conveyancer Pty Ltd (“the Shire Conveyancer”) who acted on the conveyance from the vendors of the Property to Jackie (see CB 157, paragraph 47 of Rita’s affidavit of 18 November 2019):

   3. (3)

      Egon gives evidence that he said to Jackie (CB 83, paragraph 46 of Egon’s affidavit of 18 November 2019):

9. [9]

   It is important to note that from 2004 to late 2018, the Plaintiffs and their younger daughter, Marilyn, had almost no contact with each other. The Wills dated 2012 of both Egon and Rita left their entire estates to each other but in the event that the spouse died first, then to Jackie. There was a note appended to their respective Wills in which Egon and Rita explained why they had not left any part of their estates to Marilyn: see Exhibit 2.

10. [10]

    I shall say more about the reasons for estrangement between the Plaintiffs and Jackie later, but it appears that between 2004 and 2017, Egon and Rita had a close and loving relationship with Jackie. In a card sent in 2016, they described Jackie as the “light” of their life: see Exhibit 1 page 12. The degree of affection held by Rita towards Jackie in more recent years is put in issue by Rita’s evidence and I shall return to that topic. What is not in dispute is that in the second half of 2018 the situation altered dramatically with Jackie completely out of favour and by 2019 Marilyn had become the object of the Plaintiffs’ affection and the person who, under new wills made by Egon and Rita (see Exhibit 2) (“Wills”), would receive the bulk of the estates once Egon and Rita had passed away with Jackie to receive nothing from either estate.

11. [11]

    On 11 May 2021, Marilyn was appointed as guardian for Egon on account of his admission earlier in the year to, and treatment at, Bega Hospital and then Kenmore Hospital pursuant to the Mental Health Act 2007 (NSW) and diagnosis of mixed vascular Alzheimer dementia. Egon was not, as a consequence of his condition, able to give evidence at the hearing of these proceedings. Marilyn was appointed tutor for Egon on 27 May 2021 pursuant to an order of Darke J. On 30 March 2021, Egon was provisionally diagnosed with mixed vascular Alzheimer dementia and Dr Zhou, the psychiatric registrar at Kenmore Hospital, advised that Egon did not have capacity: see Exhibit 8. I will address the consequence of Egon’s inability to give evidence at the hearing later in these reasons.

12. [12]

    Ms M Fraser of Counsel appeared for the Plaintiffs. Mr A Harding SC and Ms L Johnston of Counsel appeared for Jackie. I received detailed written opening submissions from Ms Fraser (“POS”) and from Mr Harding and Ms Johnson (“DOS”). After the conclusion of the hearing in June, I received extensive written closing submissions from Ms Fraser (“PCS”) and from Mr Harding and Ms Johnson (“DCS”). I also received submissions in reply from Ms Fraser (“PCSR”) and oral submissions from Counsel at the hearing on 12 August 2021.

13. [13]

    What has to be determined is the following:

    1. (1)

       Did Jackie make the Pleaded Representations?

    2. (2)

       If so:

    3. (3)

       Should the Court find a resulting trust in favour of the Plaintiffs because they provided all of the purchase money?

    4. (4)

       Is there to be inferred a presumption of gift (otherwise known as the “presumption of advancement”) because Jackie is the daughter of the Plaintiffs?

    5. (5)

       Can an express intention be discerned from the words and conduct of the Plaintiffs?

    6. (6)

       If Jackie holds the beneficial interest in the Property, is that subject to a life interest in the Property for the parents?

    7. (7)

       If the answer to [13(6)] above is yes, how is that to be dealt with?

    8. (8)

       There are subsidiary questions of fact, namely:

14. [14]

    Unfortunately, the relations between the Plaintiffs and Jackie have become rancorous and that has spread to some of the witnesses called by the parties and is reflected to a degree in the form of some of the submissions. Ms Fraser, for example, in the PCS, referred to Jackie as a “fraudster” (PCS at paragraph 5) who engaged in “perfidy” (see PCS at paragraph 2) and practiced “deceit and manipulation of her parents over a very long period of time” (PCS at paragraph 102), that Jackie was “doing her best to keep Rita in Hospital” (after Rita’s attempted suicide) (see PCS at paragraph 211), attempted “to control her parents and their finances for her own benefit” and “is prepared to milk her parents for every penny she can” (see PCS at paragraph 275). As I shall outline later in these reasons, many of the assertions made by Ms Fraser in her submissions could not be supported and should not, in my opinion, have been made. Significant attacks on the credit of most lay witnesses were launched and I will have to deal with each of these attacks in due course. I will return to that topic after I have provided an outline of the events which lead to the present catastrophe of family warfare played out in the Court room. Ironically, both Ms Fraser and Mr Harding asserted that much of the hearing was spent on matters that are irrelevant: see DCS at paragraph 2 and PCS at paragraphs 1-3.

Factual Background

1. [15]

   I summarise the factual background to the dispute the subject of these proceedings as follows:

   1. (1)

      Egon and Rita were born in Germany in the late 1930s and early 1940s respectively and emigrated to Australia in the mid-1950s. Throughout the 1950s and 1960s, Egon undertook an apprenticeship as a mechanical engineer and, upon completing that apprenticeship, he and Rita incorporated Mer Industries Pty Ltd (“Mer Industries”), by which they operated a mechanical engineering business specialising in cranes. Upon her arrival to Australia, Rita commenced work as a dressmaker and continued in that role until she and Egon incorporated Mer Industries, following which she commenced managing the business alongside Egon. Egon and Rita worked in the business until their retirement in 2016.

   2. (2)

      In the mid-1990s, the Plaintiffs purchased a vacant block of land in Jindabyne (“the Jindabyne Property”). In 1999, the Plaintiffs built a house on the Jindabyne Property and, until 2016, used it as a holiday home. In late 2016, the Plaintiffs moved from their previous property in Bonnet Bay (“the Bonnet Bay Property”) into the Jindabyne Property and continue to reside there.

   3. (3)

      In March 1999, Jackie sold a unit in Miranda owned by her (“the Miranda Property”) but to which her parents had contributed a substantial amount and commenced residing at the Jindabyne Property. In September 2000, Jackie returned to Sydney for a short period and, thereafter, resided with the Plaintiffs at the Bonnet Bay Property until October 2014, following which she commenced residing with Mr Kieran Tynan (“Kieran”, whom she later married) at a property in Port Hacking.

   4. (4)

      In June 2002, the Plaintiffs sold a property that they owned in Vincentia NSW (“the Vincentia Property”).

   5. (5)

      In 2012, the Plaintiffs made the Wills to which I have earlier referred.

   6. (6)

      On 16 September 2016, Egon and Rita are said (on Jackie’s case) to have signed a letter (“the Gift Letter”) advising the St George Bank (“the Bank”) that they would provide an irrevocable gift to Jackie of $650,000 towards the purchase of a property. The authenticity of the Gift Letter is called into question by the Plaintiffs and it was a matter to which much attention was paid at the hearing in June 2021. I will return to the significance of the Gift Letter later in these reasons.

   7. (7)

      In October 2016, Egon fell ill with several significant medical problems. Those medical issues required that he frequently attend St Vincent’s Hospital for surgery and other treatment. The Plaintiffs’ permanent residence at the Jindabyne Property soon became impractical. For this reason, the Plaintiffs enlisted Jackie’s assistance to search for a property in and around Bowral, NSW that they could use as a base from which to visit Sydney when Egon needed to see medical practitioners or receive treatment.

   8. (8)

      In April 2017, the Plaintiffs and Jackie attended an inspection at the Property at which time Egon indicated his disapproval of it. The Plaintiffs and Jackie attended inspections for other properties; however, they did not follow up on those inspections.

   9. (9)

      On or about 20 May 2017, the Plaintiffs and Jackie decided to reinspect the Property after having been advised by the real estate agent marketing the Property that the vendor had lowered the sale price. Upon his reinspection of the Property, Egon indicated that it “was more suitable than he initially thought”: see CB 185, paragraph 40 of Jackie’s affidavit of 11 June 2020). Later that day, Egon and Rita made an offer to purchase the Property, which was accepted the following day.

   10. (10)

       On 22 May 2017, Egon, Rita and Jackie attended at the office of Di Jones Real Estate and on 23 May 2017, Di Jones Real Estate issued a sales advice which recorded “Jacqueline Rita Metzner” as the purchaser.

   11. (11)

       In relation to [15(10)], there is no suggestion that Jackie was the person who gave the real estate agent the instructions reflected in the sales advice.

   12. (12)

       On 25 May 2017, the Shire Conveyancer was engaged to act on the conveyance of the Property. The Shire Conveyancer had acted on the conveyance of several other properties for the Plaintiffs and Jackie prior to and following May 2017. On that day, Egon had a telephone conversation with an employee of the Shire Conveyancer, Ms Denise Robinson, in relation to the purchase of the Property. The file note made by Ms Robinson states:

   13. (13)

       On 26 May 2017, Egon had a conversation with Ms Rendall. Ms Rendall’s file note of that conversation relevantly reads:

   14. (14)

       A cheque for the deposit was drawn by Egon on 26 May 2017 and handed over to the Shire Conveyancer on 27 May 2017.

   15. (15)

       Jackie executed the contract for sale of the Property on 6 June 2017. Completion of the sale of the Property occurred in July 2017. The stamp duty payable was $33,310: see AF 37. Egon and Rita provided all of the funds for the purchase, stamp duty and legal costs.

   16. (16)

       On 16 June 2017, Jackie sent an email to the owner of a storage facility (who, Jackie asserts, is a friend of Kieran’s), in which Jackie relevantly wrote:

   17. (17)

       In February 2018, the Plaintiffs decided to sell the Jindabyne Property and purchase a property in Burradoo, NSW.

   18. (18)

       On or about 12 April 2018, the Plaintiffs purchased the property located in Burradoo, NSW (“the Burradoo Property”) for $1,680,000. As the Plaintiffs had not yet sold the Jindabyne Property, they did not have sufficient funds to purchase the Burradoo Property. Accordingly, the Plaintiffs applied for bridging loans from the Bank and also procured a loan from Kieran in the amount of $84,000, which sum was used to pay the deposit. The registered proprietors of the Burradoo Property were the Plaintiffs and Jackie jointly. The Plaintiffs now assert they are unaware of the circumstances in which Jackie became a registered proprietor of the Burradoo Property. Nevertheless, in contrast to her position in respect of the Property, Jackie has accepted that the Plaintiffs:

   19. (19)

       Between 12 April 2018 and the date of settlement of the Burradoo Property, the Bank indicated its approval of a bridging loan for the amount of $1,300,000, which left the Plaintiffs with a shortfall of at least $400,000, having regard to stamp duty and other expenses related to their purchase of the Burradoo Property. The loan document issued by the Bank included Jackie as a purchaser of the Burradoo Property.

   20. (20)

       On 22 June 2018, the Plaintiffs, Jackie and Kieran attended a meeting at the Property with Mr Robert Simpson of Loan Market to discuss sourcing finance for the Plaintiffs’ purchase of the Burradoo Property. Jackie asserts (and the Plaintiffs deny) that she offered to sell the Property to assist with the Plaintiffs’ finance of the Burradoo Property, which offer was rejected by Egon. The Plaintiffs assert, by contrast, that at, or sometime shortly before or after this meeting, they asked Jackie to sell or mortgage the Property to assist with their purchase of the Burradoo Property, which she refused to do. Jackie denies having been asked to sell or mortgage the Property at that point in time.

   21. (21)

       In August 2018, Rita attempted to kill herself. There is a progress note by a Ms Kemp, social worker at the hospital at which Rita was admitted, in which Rita is recorded as having told her that she and Egon (see Exhibit 7):

   22. (22)

       Prior to 31 October 2018 (see AF 178), Egon contacted Ms Rendall stating that he wanted to sell the Property. Ms Rendall must have contacted Jackie: see [15(23)] below.

   23. (23)

       On 31 October 2018, Jackie wrote a letter to Egon (“the October Letter”), which contained the following relevant passage:

   24. (24)

       On 5 November 2018, Jackie wrote a further letter to Egon (“the November Letter”), which contained the following relevant passage:

   25. (25)

       The Plaintiffs sold the Burradoo Property on 30 November 2018 for $1,480,000, i.e. at a loss.

   26. (26)

       On 17 December 2018, Ms Rendall wrote to Egon and Rita concerning the proposed sale and the need to obtain a new Certificate of Title: see AF 188.

   27. (27)

       On 9 January 2019, Egon wrote to Ms Rendall confirming that the Property was not for sale but requesting a transfer of the Property into his and Rita’s name: see AF 188A. He asserted that he and Rita had nominated Jackie as the “property carer” until their death at the request of Jackie and that since they are still alive, “the goods bought and paid by us are under our control”.

   28. (28)

       Ms Rendall replied to Egon and Rita in a letter dated 16 January 2019, in which she stated:

2. [16]

   I have referred to the sale of the Burradoo Property. I think it is clear from the evidence that the purchase of the Property became a source of tension between Egon and Rita. Rita was keen to move to the Burradoo Property (see T83.30-43) and a sale of the Jindabyne Property would have provided the funds to purchase the Burradoo Property. However, although he may have agreed with that course of action initially, Egon, it appears, later refused to sell the Jindabyne Property. He had always intended that he and Rita would move in the Jindabyne Property when he retired: see CB 82, paragraphs 19 and 20 of Egon’s affidavit of 18 November 2019. According to hospital notes that are in evidence, Rita told medical staff that Egon wanted “to see out his remaining days in Jindabyne”: see Exhibit 7 at page 75; see also T337.16-17. In his affidavit, Egon says that “Jindabyne… did not sell”, but see T70.25-T71.8.

3. [17]

   The tension over the Burradoo Property move escalated to the point where Rita decided that she would leave Egon and return to live in Germany. She then, in August 2018, attempted suicide, which led to her hospitalisation in a psychiatric ward for twelve days.

4. [18]

   In relation to some of these items, the following explanations were given by witnesses in their affidavits or oral evidence:

   1. (1)

      In relation to [15(28)] above, in her affidavit of 1 June 2021 (at paragraph 23), Ms Rendall explains her statement that “[n]o one has denied you have a claim on the property it is the legalities to change the property into your name that will cost money” by deposing to the following (see CB 464):

   2. (2)

      In relation to [15(16)] above, Jackie claims that her parents told her that she should not tell Kieran about the purchase of the Property and she asserts that she “worded the email in this way to ensure it was not disclosed to Kieran that the Bowral property was purchased for [her]”: see CB 202, paragraph 122(52) of Jackie’s affidavit of 11 June 2020. Rita asserts, in contrast, that neither she, nor Egon, asked:

   3. (3)

      In relation to [15(24)] above, in her affidavit of 18 February 2021 (at paragraph 46: see CB 427-428), Jackie seeks to explain the final sentence of this extract, and undermine its importance, by deposing to the following:

The Key Disputed Conversations

1. [19]

   The Plaintiffs and Jackie respectively assert that several key conversations took place around the time of the Plaintiffs’ purchase of the Property. The conversations relied upon by the Plaintiffs are as follows:

   1. (1)

      Egon deposes to the following conversations which he says took place at the real estate agent’s office at the time of his and Rita’s purchase of the Property (see CB 83, paragraphs 41-42 and 44-46 of the affidavit of Hans-Egon Bruno Bernhard Metzner sworn on 18 November 2019):

   2. (2)

      Rita deposes that the following conversations took place:

2. [20]

   Jackie denies that the conversations asserted by Rita and Egon occurred. The conversations asserted by Jackie are as follows:

   1. (1)

      On about 19 April 2017, Jackie and Egon inspected several properties in Bowral. Jackie deposes that she had the following conversation with Egon when they were driving between two inspections (see CB 184, paragraph 36 of Jackie’s affidavit of 11 June 2020):

   2. (2)

      On about 20 May 2017, at the Plaintiffs’ second inspection of the Property, Jackie indicated that she disliked the apricot coloured walls in 5 of the rooms. After indicating her dissatisfaction with the colour of the walls, Jackie deposes to having the following conversation with Rita (see CB 185, paragraph 40 of Jackie’s affidavit of 11 June 2020):

   3. (3)

      Following the Plaintiffs’ second inspection of the Property, Jackie and the Plaintiffs had the following conversation (see CB 185, paragraph 43 of Jackie’s affidavit of 11 June 2020):

   4. (4)

      On 22 May 2017, at a third inspection of the Property, Jackie and Rita had the following conversation (see CB 186, paragraph 45 of Jackie’s affidavit of 11 June 2020):

   5. (5)

      Jackie claims that on 22 May 2017, at the office of the real estate agent, her mother confirmed that “it is your house and you can do whatever you want to it” and that Egon said that she should put the utilities for the house in her name: see CB 186.

   6. (6)

      On 25 May 2017, Jackie and Egon had the following conversation (see CB 187, paragraph 54 of Jackie’s affidavit of 11 June 2020):

   7. (7)

      Jackie asserts (see CB 187, paragraph 50 of Jackie’s affidavit of 11 June 2020) that at the meeting with Ms Rendall, her parents explained to Ms Rendall “that they put the property in my name to thank me for all my help and that they wanted to ensure Marilyn and her husband would not be able to inherit the property”.

   8. (8)

      Jackie asserts (see CB 187, paragraph 52 of Jackie’s affidavit of 11 June 2020) that her parents said to her:

3. [21]

   I have referred at [15(13)] to Ms Rendall’s file note. Ms Rendall deposes to the conversation that she had with Egon and Rita at that conference on 26 May 2017 (see CB 463, paragraph 10 of Ms Rendall’s affidavit of 1 June 2021):

4. [22]

   Jackie calls in her case evidence from several witnesses as to statements made by Egon and Rita that undermines their assertions:

   1. (1)

      Kieran deposes to several conversations between him, Jackie, Egon and Rita. The critical conversations to which he deposes are the following:

   2. (2)

      Mr John Metzner (“John”), Egon’s brother, deposes to the following key conversations:

   3. (3)

      Mrs Erika Metzner (“Erika”), John’s wife, deposes to the following key conversations:

   4. (4)

      Mrs Sigrid Niemeyer, who first met the Plaintiffs in 1966 and had sporadically remained friends with them since that time (which included a period from the mid-1970s to approximately 2013 in which she did not speak with the Plaintiffs), deposes to the following conversation that she had with Rita at the Property shortly following its purchase (see CB 459, paragraph 7 of Mrs Niemeyer’s affidavit of 29 May 2021):

Credibility of Lay Witnesses other than Egon

1. [23]

   Mr Harding submitted that Rita was not a credible witness and that I should not accept her evidence unless it was an admission against interest, the reasons for which are expounded in the DCS at paragraphs 8-24. Ms Fraser responded to the many points without concession as to any of them.

2. [24]

   Some of the matters on which Rita was cross-examined were, in and of themselves, of minor importance, but they demonstrate her unreliability. I will give six examples:

   1. (1)

      Egon was hospitalised on 28 October 2016 for a reoccurrence of his back melanoma. Rita was stopped by police and issued with a speeding infringement notice on 3 November 2016 on her way to the hospital, having said that she had to wait for the removalists in Jindabyne before she could head to Sydney. At first, she agreed that she had not travelled to Sydney immediately (see T54.44-48) but by T57.45 she was asserting that the wrong date had been included on the infringement notice.

   2. (2)

      She denied at T56.7 that Jackie had written a letter for her to State Debt Recovery even asserting that Egon had done so, but later admitted that Jackie had prepared the letter for her at T56.50: see also T57.1-7.

   3. (3)

      She denied that she and Egon had received as a present from Jackie a massage at the Golden Door Spa Centre on the Gold Coast (see T50.46-48) but then asserted it was a Christmas present (see T51.5), then denied receiving the Christmas present: T51.7-17.

   4. (4)

      She denied that Erika and John had come to the Property around the time of Egon’s birthday (see CB 622) and cross-examination revealed that they had done so: T107.45-46. She asserted that prior to Egon’s birthday, she had not seen John and Erika for many years (see T108.10-11), but she had, as a matter of fact, seen them in more recent times: see T108.18-35 and see T109.11-T110.26, which also demonstrates the difficulty of obtaining clear answers from Rita about matters in respect of which she had given evidence.

   5. (5)

      She and Egon had, on the occasion of Jackie’s 50th birthday, described Jackie as “the light of our life” (see Exhibit 1, page 12), but she described that as being years earlier (it was in 2016): see T66.20-32.

   6. (6)

      She says she was not aware that Jackie spelt her name without a “c” (i.e. Jaqueline) and asserted in her affidavit that the correct spelling of her daughter’s name was with a “c”, notwithstanding that she was aware that Jackie’s birth certificate names Jackie without a “c”: T100.9-30.

3. [25]

   In my view, Rita was not a reliable witness and for the following reasons:

   1. (1)

      The matters referred to in [24] above.

   2. (2)

      On many occasions, she gave non-responsive answers to the questions asked of her: for example, see T41.24-6, T42.38-43, T44.10, T45.50-T46.1, T50.9-11 and T50.17-18.

   3. (3)

      On several occasions, she gave non-responsive answers which involved an attack on Jackie or Kieran: see T54.2-7, T55.23-24, T59.49, T61.4-10 and T67.13-T68.20.

   4. (4)

      She asserted that Erika had told her that she (Erika) had been diagnosed with dementia; an assertion denied by Erika. There was no evidence that Erika had been diagnosed with dementia and nothing in Erika’s demeanour or the evidence that she gave to suggest that there was any truth in that allegation.

   5. (5)

      At T66.2-9, T77.5-T78.38, T92.23-31, T103.10-43 and T109-T110, she gave responses to questions without first having heard the whole question or a necessary part of it by which she could have adequately comprehended what was being asked of her.

   6. (6)

      Rita asserted that the estrangement between Marilyn and the Plaintiffs was as a result of what Jackie had told them: see CB 613, T38.22-42, T43.7-41. The addendum to the Plaintiffs’ Wills contradicts the assertion that it was Jackie who caused the estrangement and that Rita had no direct discussion with Marilyn. The addendum includes the assertion that Marilyn had “divorced herself personnally [sic] by word in 2004 and confirmed from thereon by her actions”: see Exhibit 2 page NTP 14. At T45.50-T46.11 Rita denied informing her family, including Marilyn, that she and Egon had sold the Vincentia Property notwithstanding that, by the letter annexed to her 2012 Will, she cited as one of her reasons for intentionally omitting Marilyn from that Will the fact that Marilyn was, after being informed of the Plaintiffs’ sale of the Vincentia Property, “extreme [sic] furious and accused us that we sold her home”: see Exhibit 2 page NTP 14. In cross-examination, Rita also later resiled from her earlier assertion that she did not inform Marilyn that she and Egon had sold the Vincentia Property: see T46.43-45.

   7. (7)

      At T49.15-16, Rita agreed that she had made only one Will in 2012. That was inconsistent with paragraphs 36 and 37 of her affidavit sworn on 28 January 2021 and a statement from which she sought to resile later in her cross-examination: see T76.41-T77.41.

   8. (8)

      There were inconsistencies in her evidence concerning the other 2012 Will (see T79-T81), which Will, she asserted, did not contain an addendum. Her evidence concerning the creation of another Will in 2012 was unconvincing and inconsistent and there is no corroborative evidence of any such other Will.

   9. (9)

      Rita asserted that the decision to purchase the Property in Jackie’s name was only made at the meeting in Ms Rendall’s office, an assertion not supported by Egon’s affidavit. The documentary evidence, in my view, establishes that the decision to purchase in Jackie’s name was communicated to the real estate agent on 22 May 2017 and was confirmed to Ms Robinson of the Shire Conveyancer, i.e. before the meeting with Ms Rendall on 26 May 2017.

   10. (10)

       I have referred (at [19(2)(e)] above) to Rita’s evidence at T96.46-49 (and see T97.5-11) by which Rita adds words to the conversation with Ms Rendall she says Egon used that were not in her earlier affidavit (and see also similarly the conversation set out at CB 615 at paragraph 59 of her affidavit in comparison to the earlier version).

   11. (11)

       In connection with Jackie’s assertion that whilst she was residing at the Bonnet Bay Property, she had carried out cleaning of the property, Rita denied that was so and said that the Plaintiffs had the service of a cleaning lady, Mrs Walsh: see paragraph 14 of Rita’s affidavit of 28 January 2021. The fact is that Mrs Walsh had died in 1996 (see Exhibit 1, page 24) and Rita, when cross-examined about the date of Mrs Walsh’s death, could offer no date, even an approximate basis: see T67.25-40.

   12. (12)

       Rita professed to have a clear recollection of the conversations that she advanced to support her case but was unable to recall specifics of other events or conversations at the same time. For instance, she said she could not recall what occurred at the meeting with the real estate agent (at which the agent was undoubtedly informed that Jackie would be the purchaser), but claimed to have a good recall of what she said at the meeting with Ms Rendall. Regard should be had to the whole of the transcript from T89.50-T94.44, not as the PCSR seeks to do (at paragraph 17) to just one part of it.

   13. (13)

       There were several exchanges in cross-examination where Rita gave evidence that appeared evasive: see, eg, T78.30-T80.12, T89.10-25 and T107.33-110.34.

   14. (14)

       Rita was forced to admit that her evidence about the visit of Erika and John was false: T112.31-43.

   15. (15)

       At T112.47-T113.3, Rita denied that the Burradoo Property was purchased in the names of herself, Egon and Jackie, notwithstanding that that was undisputed and evidenced by the contract for the sale of that property (see CB 310) and the fact that a letter was sent by Shire Conveyancer confirming that fact: see Exhibit 5; and see also the letters from the Bank dated 12 July 2018 in Exhibit 1 and the documents attached to Egon’s affidavit of 18 November 2019 at CB 132-133.

   16. (16)

       Rita sought to blame Jackie for her admission to, and detention at, a psychiatric hospital following Rita’s attempt at suicide. The admission clearly was a result of Rita’s attempted suicide and Rita’s complaint that Jackie should not have called an ambulance and had her taken to hospital is groundless.

   17. (17)

       Further to the matter in [25(16)], I set out the cross-examination in relation to Rita’s mother at T73.35-T75.30:

   18. (18)

       I have referred to the note taken of what Rita informed the hospital staff member: see [15(21)]. Rita denied not only that she had told the hospital that Egon wanted to remain in Jindabyne, but also that he had expressed the view that the Property was Jackie’s: see T71.10-12.

   19. (19)

       She asserted in her affidavit of 28 January 2021 at paragraph 50 (see CB 615) that Egon never intended that the Property would be bought in Jackie’s name. She admitted at T87.23 that she did know that the Property would be purchased in Jackie’s name but asserted that she first learnt that the Property would be purchased in Jackie’s name at Ms Rendall’s office: T87.25-36.

   20. (20)

       She said at T89.14-25 that she remembers having seen the real estate sales advice but then said she could not remember it. It is clear that that decision to purchase the Property in Jackie’s name had been made prior to 27 May 2017 and whilst it is possible that Egon did not reveal his intentions to her before that, this is unlikely, particularly since they attended the real estate office together. In this connection, Rita admitted she was at the meeting with the real estate agent (see T91.27-35) but at T90.7-8 she said she was sitting in the waiting room.

4. [26]

   I have difficulty accepting Rita’s evidence as truthful and do not propose to do so unless it involves an admission against her interests or corroborated by an independent witness.

5. [27]

   Ms Fraser in the PCSR made the following points concerning Jackie’s credibility:

   1. (1)

      Jackie had not mentioned her gambling addiction in her affidavit.

   2. (2)

      Jackie had extensive involvement in her parents’ affairs: see PCSR paragraph 28.

   3. (3)

      Jackie was evasive about what she did with the proceeds of sale of the Miranda Property: see PCSR paragraph 29.

   4. (4)

      Jackie must have taken documents from the Plaintiffs’ safe and put them into evidence (without the permission of the Plaintiffs).

   5. (5)

      Jackie claimed in applications for credit cards to own the matrimonial home when, in fact, she did not.

   6. (6)

      Jackie claimed that she had written the October Letter whilst in an emotional state.

   7. (7)

      PCSR paragraph 32 states:

6. [28]

   I deal with these seriatim:

   1. (1)

      I do not think that Jackie was required to reveal her gambling addiction in her affidavit. It is the Plaintiffs, through the PCSR, who assert that it is relevant because it is said to be unlikely that they would have put the Property in Jackie’s name if they had known. The Plaintiffs do not assert that they did not know of Jackie’s gambling problem and do not say that had they known they would not have put the Property in her name.

   2. (2)

      Ms Fraser did not put to Jackie that she had extensive involvement in the Plaintiffs’ affairs.

   3. (3)

      I do not think Jackie was evasive about what she did with the proceeds of sale of the Miranda Property. In any event, it does not seem to have any relevance.

   4. (4)

      Jackie’s evidence is that she had a number of documents of her parents stored on her computer but, in any event, I do not think this contention is relevant to her credit in the context of this case.

   5. (5)

      I accept that this is a matter of relevance to Jackie’s credit and I take it into account below. I should point out, however, that the point made at PCS paragraph 47 that Jackie did not show herself as owner of the Property whilst technically correct ignores the fact that that document is one from 2016, long before the Property was purchased: see CB 779-781 and 791-795.

   6. (6)

      Jackie’s claim that she was in an emotional state when she wrote the letter has not been shown to be untruthful or refuted by any alternative evidence. If anything, the letter supports that contention.

   7. (7)

      The allegation that Jackie deliberately and inappropriately ensured that Rita remained in a psychiatric hospital after Rita’s suicide attempt was denied by Jackie (see T215.31-33) and I am not satisfied that the allegation is supported by any credible evidence. I have, at [25(17)] set out the portion of the cross-examination of Rita relevant to this.

7. [29]

   I agree with the DCS submissions that Jackie answered questions directly and without volunteering material that was not responsive. She also was willing to make admissions against her interest and overall presented as far more credible than Rita.

8. [30]

   There are, however, a number of matters of concern relating more generally to Jackie’s credit and reliability:

   1. (1)

      She admitted that she had falsely described her assets to her bank on several occasions: CB 780, T195-T196 and T197.15.

   2. (2)

      She admitted that she had told her father that she was not in receipt of much income when this was untrue: T224.31-33.

   3. (3)

      She admitted, at T189, that she had a gambling problem but said that it was under control by the time of Rita’s admission to Campbelltown Hospital (T194.30) but at T215.6-21, she was forced to admit that she had a significant problem when she briefly took on a role under a power of attorney for her father and as his guardian in August 2018.

   4. (4)

      Her evidence as to her dealings with the Bank in 2016, 2017 and 2018 was very confused; her claim that she had applied for a loan in connection with the purchase of a property in 2016 was not supported by any documentation produced by the bank. She said that the application was made online (see T194.39) but says she gave a copy of the Gift Letter to the bank in person (see T205.2). The bank did produce a copy of the Gift Letter although there seems to be a contest about who provided that copy to the Bank. Jackie did say in her affidavit of 18 February 2021 that she could not recall what she did with the original Gift Letter (see paragraph 13, CB 423) but in cross-examination, she said she had given the original to her father at the time she photocopied it: see T205.37-38. I found her evidence relating to her attempt to obtain a loan that would enable her to assist her parents complete the Burradoo Property purchase confusing.

   5. (5)

      She gave a false address in the contract for the purchase of the Property and a purchaser declaration to the Office of State Revenue: T176.27-49. Her claim that her parents told her to do this (see T177.1-3) was unconvincing.

   6. (6)

      She asserts (see CB 187, paragraph 50) that the Plaintiffs told Ms Rendall that they put the Property in her name to thank her and because they wanted to ensure that Marilyn and her husband would not be able to inherit the Property. Ms Rendall gave no account of such in her evidence and she also states that she did not know that Jackie had a sibling. If Jackie’s version was accurate, Ms Rendall would very likely have enquired as to who Marilyn was and been informed. This, by the way, is the mirror image of one of Rita’s credibility problems.

   7. (7)

      Jackie’s evidence concerning the Gift Letter and its genesis was confusing: T202-T203.

   8. (8)

      Jackie claims that she handed the Certificate of Title for the Property to her parents to put in their safe. There is no doubt that Egon and Rita could not find the Certificate of Title in October 2018 and the absence of the Certificate of Title does not support the Plaintiffs’ case, so I am inclined to accept that it was not in the safe (see T211-T212) and that the Plaintiffs did not have it in October 2018.

   9. (9)

      Jackie’s explanation for why she mentioned her husband’s wealth to the hospital did not make any sense (see T186.36-47), although it does not appear to have any significance.

   10. (10)

       Her evidence as to how she came to be included as a joint tenant in the Burradoo Property purchase was unclear, although I accept that her involvement was confirmed by letter from the Shire Conveyancer to Egon and Rita: see Exhibit 5; and see T266-T267. One explanation for the Plaintiffs wanting to include Jackie as one of the owners of the Burradoo Property is that which Jackie says Rita gave her; namely, to ensure that Jackie automatically became the owner of the Burradoo Property on their death which would “prevent your sister from having a claim to it”: see paragraph 62 of Jackie’s affidavit of 11 June 2020. That reason is consistent with what Jackie says Egon said concerning the Property and with the addendum to the 2012 Wills.

   11. (11)

       In one of the finance applications she prepared for her parents, she recorded them as the owners of the Property: see Exhibit E. On her case, that was untrue. In another application prepared by her, her parents are not recorded as the owners of the Property: see Exhibit 5 and AF 137-144.

   12. (12)

       Jackie asserted that she had told her solicitor about pressure exerted upon her by a friend of the Plaintiffs, Mr Alphonso Bo (see T231.2-34), but no notes were produced when called for. It is possible that she did inform her solicitor of the “pressure”, but it is unlikely that he would not have made a note or at least given evidence that she did inform him, but that he did not make notes. I should say that I am not questioning Jackie’s assertion that Mr Bo did call her trying to encourage her to hand over the Property. Mr Bo was in Court throughout most, if not all, of the hearing and was not called to contradict Jackie’s evidence.

   13. (13)

       It was Jackie’s evidence that her parents asked her not to tell Kieran about the purchase. It was Egon and Rita’s evidence that Jackie asked them not to tell Kieran. I find it difficult to accept that Egon and Rita had any reason not to want Jackie to tell Kieran about the purchase in Jackie’s name – particularly since Kieran claims that Egon told him he regarded Kieran as the son he never had: see paragraph 16 of Kieran’s affidavit of 1 July 2020.

9. [31]

   Jackie gave evidence that she provided assistance to her parents both whilst she lived with them (i.e. until October 2014) and from January 2016 to August 2018 during which time she was living with Kieran, notwithstanding that from 2015 and 2016 she had suffered not insignificant injuries to her back and elbows respectively and that she admitted (see T163.33) that from 2017, she could not “do anything that required any heavy lifting and carrying”: see T163.32. On Jackie’s evidence, that assistance included cleaning her parents’ house, mowing the lawns, maintaining the gardens and conducting other general housekeeping duties. It was Rita’s evidence that Jackie exaggerated the assistance she provided to both her and Egon. It is not an easy matter to determine the extent of Jackie’s contribution but it is not strictly necessary to do so because Egon, on his own evidence in relation to the decision to buy the Property in Jackie’s name, said (see paragraph 42 of Egon’s affidavit referred to in [19(1)] above):

10. [32]

    At paragraph 233 of the PCS, Ms Fraser contends that it can be inferred from the limited number of bank transactions on the St George freedom account that Jackie was not present in Bowral more than 7 out of 60 weekends between January 2017 and January 2019. This contention is based on the assumption (not proven) that Jackie always used that particular account whenever she was in Bowral. A similar problem emerges in relation to the attack on Jackie’s credit because she asserted that she had a lot of medical bills: see paragraph 237-8 of the PCS. This assumes that Jackie only used that one account to pay bills – a matter not proven by the Plaintiffs.

11. [33]

    Kieran’s evidence was directed mainly to an account of two conversations with Egon in which Egon told him he had made (or referred to) a gift of the Property to Jackie, but he also gave evidence as to the Plaintiffs’ relationship with Marilyn, Jackie’s payment of expenses for the Property, his loan to the Plaintiffs for the Burradoo Property and the assistance which Jackie gave to her parents.

12. [34]

    He readily admitted to not recalling particular conversations and events (albeit those were few) and was not shown to have given inconsistent evidence. At times, however, he appeared to be evasive (see, eg, T306.32-34). He denied having told the hospital that Jackie had arranged for Rita’s transfer to a private psychiatric hospital, but the hospital notes show that he did do so: p.52 of Exhibit J. He also gave evidence concerning the loan of $84,000 to Egon and Rita and said that Egon had offered to pay interest. Kieran, however, had not pressed any claim for interest when the money was repaid. There was a further aspect of his evidence that became an issue at the hearing in June. The relevant part of the cross-examination to which I am referring is the following (T306.32-T307.9):

13. [35]

    Consequent upon Kieran giving this evidence, Mr Dean Groundwater (the solicitor for Jackie) and Mr Ryan Metzner (“Ryan”) (Marilyn’s son) were called and gave evidence.

14. [36]

    Mr Groundwater’s evidence was as follows (T390.16-30):

15. [37]

    In cross-examination, Mr Groundwater gave the following additional evidence (at T391.6-14):

16. [38]

    Ryan’s evidence was (at T419.17-50):

17. [39]

    Thus, on Ryan’s account, Mr Groundwater asked Kieran if he has received and read the transcript to which he replied “yes” and we have Mr Groundwater’s account that he asks Kieran whether he has read the transcript and Kieran says “no” and we have Kieran who does not think that Mr Groundwater asked him whether he had read the transcript.

18. [40]

    Mr Groundwater explains that he sent the transcript to Kieran in error treating him as a client rather than a witness (T391.25-31) and not only accepts that he should not have done so, but has apologised to the Court: see T493.43-45. That Kieran told Mr Groundwater that he had not read the transcript was not corroborated by Kieran. Kieran did, in cross-examination, assert that he had not read the transcript (see T306.39-43) and he was not challenged on that but it was put to him that Mr Groundwater had asked him if he had read it and that he had told Mr Groundwater that he had done so: see T307.6-12. There was an attempt in the DCS at paragraphs 71 and 72 to cast doubt on the accuracy of Ryan’s evidence because he is partisan (which he clearly is) and because he was walking past and not a party to the conversation. I take into account both matters but there is no dispute that Mr Groundwater did ask the question that Ryan says he heard, and I accept Ryan’s evidence that Kieran replied that he had.

19. [41]

    The Court goes to some lengths to ensure that witnesses do not talk to others about their evidence. Mr Groundwater by sending a copy of the transcript to Kieran undermined those efforts and that was entirely inappropriate.

20. [42]

    I do not know whether Kieran did or did not read the transcript of his wife’s cross-examination. I find it surprising that he did not do so having had the opportunity and his statement (on Ryan’s evidence) that he was nervous about the day does seem to flow logically from such a reading, but this was not explored with him in cross-examination.

21. [43]

    Whilst I am not able to positively conclude that Kieran did read the transcript, I shall have to approach his evidence with a degree of caution because of the possibility that he did so. I need also to take into account that he has a very close connection with Jackie and hence in the outcome of the proceedings. I also have regard to the fact that Egon, because of his condition, is not able to contradict Kieran’s evidence concerning the alleged admissions.

22. [44]

    John was an assertive and forthright witness who, at times, appeared to be evasive (see, eg, T342.14-15 and T344.42-T345.12) and at other times confused (see, eg, T345.14-T346.31).

23. [45]

    There were also occasions where John’s recollection of events was poor. By way of example, on 17 November 2019, John sent the following text message to Egon (see CB 606):

24. [46]

    John’s explanation of the reason for him sending this text message, in cross-examination, was that the Plaintiffs purchased the Burradoo Property and had difficulty raising finance to proceed with the purchase of that property: T345.18-20. This is so notwithstanding that the Plaintiffs purchased and sold the Burradoo Property long before John sent this text message in November 2019 and that John asserted that he last spoke with Egon and Rita prior to Rita’s release from hospital in August 2018: see T345.29-31. It was then put to him by Ms Fraser that the actual reason for him sending the text message was the fact that he became aware that the Property was in dispute (i.e. that the Plaintiffs had commenced these proceedings against Jackie) (see T347.14-15), which he denied in a roundabout way.

25. [47]

    The reason proffered by John for him sending the text message (i.e. that the Plaintiffs purchased the Burradoo Property) is difficult to accept, particularly in circumstances where he also asserts (which does not appear to be denied) that he did not speak with either Egon or Rita after August 2018. Also of relevance is the fact that these proceedings were commenced on 18 November 2019 (i.e. one day after John’s text message). I am unable to accept John’s explanation for his reason in sending this text message.

26. [48]

    John also demonstrated a general dislike of both Egon and Rita for several reasons, the most significant of which was, he explained, that Egon and Rita had refused to take Jackie to hospital after she suffered an injury (the details of which were not before the Court): see T341.42-T342.22. Soon after he first became aware of Egon and Rita’s failure to take Jackie to hospital (which event actually occurred many years prior), John sent the following text message to Egon on 1 August 2019 (see CB 607):

27. [49]

    Once again, the timing of the text message seems to be closely connected to the developing dispute concerning the Property rather than an incident many years earlier and I am unable to accept John’s explanation for sending this text message.

28. [50]

    John denied that he had had any help in preparing his affidavit (T352.47-48), an assertion that seems inconsistent with the clear indication that it was prepared by Jackie’s solicitor.

29. [51]

    Ms Fraser submitted that Erika and John could not be treated as reliable witnesses because they had colluded in their evidence. This contention is based upon the fact that they had prepared identical statutory declarations in April 2019. These were marked for identification (MFI-4); the issue of whether they could be tendered on a limited basis being deferred: T416. Mr Fraser in the PCS (see paragraphs 293-296) submitted, relying on s 60 of the Evidence Act 1995 (NSW) (“Evidence Act”), that they can be admitted on a limited basis. There was no submission in the DCS contesting that and in any event, I think Ms Fraser is correct. I have had MFI-4 marked as Exhibit R. It is true that Ms Fraser did not put to John or Erika that they had colluded, but insofar as the statutory declarations are concerned, they were not produced to the Court until after John and Erika had been cross-examined.

30. [52]

    I note the statutory declarations dated 3 April 2019 are identical in form and content. The reason that they say the Property was given to Jackie was, in the statutory declarations, “to provide a secure future for [her]”, which is different to the reason articulated in their affidavits (see CB 165 and 173); i.e. because “[s]he looked after the business and the property” (see CB 165) and “because she [had] looked after [the Plaintiffs]” (see CB 173). The reason articulated in the statutory declaration is, however, consistent with what is contained in the October Letter: see [15(23)] above.

31. [53]

    I gained the impression that John was very antagonistic to the Plaintiffs, partisan in his support of Jackie and not a reliable witness. I also think that the form of the statutory declarations induces a real need for the exercise of caution in relation to his subsequent affidavit.

32. [54]

    Erika appeared to be truthful in her answers in cross-examination. I reject the inappropriate submission made by Ms Fraser that Erika displayed any indication of dementia in the witness box. I am, however, concerned as to the veracity of her account having regard to the content of the statutory declarations and the difference between the account in the statutory declarations and the affidavit. I note too that Erika, in cross-examination, gave evidence of a conversation to which she had not previously deposed (see T395.20-25) and asserted that Jackie was present. Jackie does not, in her affidavits, assert that she was present at their meeting at the Property. John does not assert Jackie was present.

33. [55]

    A further point is made in the PCS and PCSR concerning that fact that Erika’s signature apparently appears at the foot of John’s affidavit: see, eg, CB 171. No questions were asked by Ms Fraser about why she has done so, and I do not think any adverse inference can be drawn from the presence of that signature.

34. [56]

    Mrs Niemeyer was a forthright witness who, however, admitted that she could not recall the details of particular conversations or events (see, eg, T136.35-T137.2, and see T144.25-36).

35. [57]

    At T136.35, Mrs Niemeyer denied having said “I’ve always been on good terms with Jackie”, but that is what she deposed to in paragraph 11 of her affidavit: CB 460. She said in her affidavit that she had been speaking with Jackie on the phone once a week “for some years” but this became for the past 6 months in cross-examination: see T138.34-41. Mrs Niemeyer agreed that Jackie had told her about the case but could not recall the number of times that they had discussed the case: T139.14-37. She also denied telling Jackie that the Plaintiffs were speaking to Marilyn again (T142.14-16) but Jackie’s evidence was that Mrs Niemeyer had told her that: T167.10-13.

36. [58]

    There was the following exchange in cross-examination (at T144.24-36):

37. [59]

    I gained the impression that Mrs Niemeyer was partisan in her support for Jackie and the matters to which I have referred and the admission that she did not have any genuine memory of a discussion four or five years ago is cause for concern as to the accuracy of her recollection. However, Rita did not dispute that Mrs Niemeyer had asked “You have two houses?”: see T114.40-45. Rita denies that she replied as Mrs Niemeyer attests, but Rita gave no evidence as to what her answer was to that question.

38. [60]

    I should note that Mr Harding pointed out that Erika, John and Mrs Niemeyer are witnesses who gain nothing from the outcome in this case. I take that into account, but they are nevertheless friends and supporters of Jackie.

39. [61]

    Ms Rendall appeared to be an essentially honest witness and I have no reason to doubt her testimony. As the only truly impartial lay witness in the case, and the only person with notes of the meeting which she attended, her testimony is critical in my view.

40. [62]

    Ms Fraser at PCS paragraphs 245-253 sought to impugn Ms Rendall’s evidence in a number of ways:

    1. (1)

       She drew attention to the fact that Ms Rendall had expressed an impression from what had been said by Egon and Rita that the Property was “a gift to Jackie as an early inheritance”.

    2. (2)

       At T262.11-12, Ms Rendall repeated that she had been told that her instructions were to put the Property in Jackie’s name.

    3. (3)

       That Ms Rendall sought to “recast” what she had said in her letter of 16 January 2019.

    4. (4)

       That Ms Rendall qualified her evidence at paragraph 14 of her affidavit that neither at the meeting on 26 May 2017 or at any other time was there any discussion or suggestion by anyone that the Property was being held by Jackie on trust or otherwise on behalf of her parents, to say that she meant at any time “before settlement”: T263.36-T265.3.

    5. (5)

       That Ms Rendall agreed her memory would not be any better four years after the events. She had reviewed the files with Ms Allison Clarke and “rehearsed”, in the language of the PCSR at paragraph 37, the content of her affidavit with her: T252.46-T253.1 and T260.41-42.

    6. (6)

       Ms Rendall, Ms Fraser asserts, was “swayed by her perception of Egon, Rita and Jackie as a family unit”: T255.40-41.

    7. (7)

       Her evidence included a statement that “I was not aware that Jackie had a sibling” and she could not say how she became aware of this or how it was relevant.

    8. (8)

       She could not explain the differences between the two copies of her file note (the note attached to her affidavit and the one produced in answer to a subpoena) and could not explain the page numbers appearing at the bottom of pages in her annexures.

41. [63]

    I shall deal with each of the matters referred to in [62(1)]-[62(8)] seriatim:

    1. (1)

       Ms Rendall set out in clear terms the conversation as best she could recall before proceeding to explain the impression that she gathered from it and from the meeting as a whole. In my view, the words which she has set out at paragraph 10 of her affidavit (CB 463) are entirely consistent with the file note and Ms Rendall has quite properly distinguished between what she can recall being said and the impression she was left with from those words she can recall and the meeting generally.

    2. (2)

       Ms Rendall did appear to deflect the answers away from the question at T262.14-44 and appeared defensive but she was being asked about hypotheticals and the questions were linked to whether or not she should have advised the Plaintiffs and Jackie to obtain separate representation.

    3. (3)

       Ms Rendall was entitled to explain that she had overstated the position in her letter to Egon.

    4. (4)

       It was, in my view, entirely appropriate for Ms Rendall to qualify the statement in her affidavit because of the letter from Egon received in January 2019. It does not undermine Ms Rendall’s evidence at all.

    5. (5)

       The first assertion is correct: see T261.19-21. What Ms Rendall said she had discussed with Ms Clarke (who happens to be her mother) was the Burradoo Property, with which Ms Clarke had extensive involvement: see T260.16-35. In my view, the pejorative “rehearsed” should not have been used in the PCSR.

    6. (6)

       Ms Rendall did think of Egon, Rita and Jackie as a family unit as she admits and as at 2017, they in a sense were.

    7. (7)

       That Ms Rendall did not know that Jackie had a sibling is relevant – it makes it clear that no one told Ms Rendall that the reason behind the purchase in Jackie’s name was to thwart Marilyn and that it is likely that that topic was not mentioned or discussed in her presence.

    8. (8)

       There is simply no significance in the minor discrepancies. The text of the file note is identical.

42. [64]

    I accept Ms Rendall’s evidence in its entirety as truthful and her honest recollection of what occurred, aided by her file note.

43. [65]

    I have dealt with the issue of the transcript above and that was the only topic of any significance arising from Ryan’s evidence and cross-examination.

44. [66]

    Marilyn was also called in the Plaintiffs’ case in reply. The principal reason for Ms Fraser calling Marilyn was for her to give evidence as to the provenance of Exhibit N. Marilyn was, however, cross-examined as to various conversations she had with Rita concerning the Gift Letter, matters pertaining to her father’s health, including his dementia and psychological wellbeing, and the circumstances in which she was appointed as Egon’s guardian and enduring attorney. Marilyn was an evasive witness who went to great length to avoid answering Mr Harding’s questions about the circumstances in which Rita first informed her of the Gift Letter: see T446.13-T447.9; and see also T449-T452. I have difficulty accepting her evidence that she could not recall, even approximately, when Rita first showed her the Gift Letter. Although the Gift Letter had clearly become a document which Rita and those assisting the Plaintiffs intended to use at the hearing against Jackie, Marilyn did not accept that the Gift Letter was seen as a significant piece of evidence in the proceedings and denied being aware that the Plaintiffs’ legal advisers intended to assert, at the hearing, that it was a document forged by Jackie. Having regard to the fact that Marilyn is Egon’s tutor in the proceedings, I have difficulty in accepting this evidence. However, as I am of the view that Exhibit N should not be admitted (see [109]-[111] below), Marilyn’s evidence as to its provenance has no probative value and the balance of her cross-examination does not appear to impinge on the matters for determination.

Egon’s Evidence

1. [67]

   Mr Harding objected to the admission of Egon’s two affidavits (one dated 18 November 2019 and the other dated 28 January 2021) on two bases, both of which were interrelated. First, Egon was not available for cross-examination, notwithstanding that the Defendant served a written notice pursuant to r 35.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) requiring that he attend the hearing for cross-examination and, on that basis, Mr Harding submitted leave should not be granted pursuant to r 35.2(3) of the UCPR permitting the Plaintiffs to use Egon’s two affidavits. The substratum of this submission is that the Defendant will not be able to test the allegations contained in Egon’s affidavits: see T19.13-14. Secondly, Mr Harding contended that the evidence relating to Egon’s condition demonstrated that he has been suffering from cognitive impairments for a considerable amount of time and that both affidavits should be rejected or alternatively, the second affidavit should be rejected for this reason alone and even more so coupled with his unavailability. Mr Harding also contended that if either or both of the affidavits were admitted, they should be accorded little to no weight on account of the lack of opportunity to cross-examine Egon.

2. [68]

   My attention was drawn to the decision of Kunc J in Saravinovska v Saravinovski (No 5) [2015] NSWSC 128 (“Saravinovska (No 5)”). Also relevant on this issue are the judgments of Campbell J in Cairns v Cairns [2006] NSWSC 364 and Master McLaughlin in Russell Caldar v Public Trustee of NSW (Supreme Court of New South Wales, 27 October 2004, unreported). On the weight to be given to an affidavit of a person who cannot be cross-examined, the guidance given by Hallen J in Fulton v Fulton [2014] NSWSC 619 (“Fulton”) is important.

3. [69]

   Rule 35.2 of the UCPR provides:

4. [70]

   Mr Harding drew attention to the following evidence concerning Egon’s mental health:

   1. (1)

      Egon was admitted to Kenmore Hospital on 29 March 2021 after he had been taken first to Bega Hospital.

   2. (2)

      A report of 26 March 2021 from Dr Kalinga Abeyasinghe of the Mental Health Unit at Bega Hospital where he was being treated as a mentally ill person who had threatened to set fire to his family home and commit suicide: see CB 640. The report notes that:

   3. (3)

      A Mental Health Discharge Summary from the Kenmore Hospital undated but showing an admission date of 29 March 2021 and printed on 27 April 2021 (CB 641-646) which refers to a comprehensive discharge summary from the Bega Hospital. Egon was diagnosed with “mixed dementia – vascular and Alzheimer disease”: see CB 644. On an ACE-R test, he was found to have a memory score of 9/26, and on a repeat, 0/26. There is evidence in those notes that Egon’s family – namely, Marilyn and Rita – have been worried about his mental state from “some time” and (see CB 641):

   4. (4)

      There is other material in the documents which lends support to the proposition that Egon’s problems are not of recent origin: see, eg, paragraph 4 of Rita’s affidavit of 28 January 2021, in which she stated “I have observed that Egon’s memory is not as good as it was before his hospitalisation in 2016” and Exhibit 7 p.51, in which she is recorded as saying that he began to experience memory problems after his return from prostate cancer surgery in 2016.

   5. (5)

      Marilyn was appointed as Egon’s guardian by order of the New South Wales Civil and Administrative Tribunal on 11 May 2021. This was based on an application made by Mr Rony George, a social worker at the Kenmore Hospital: see CB 649.

5. [71]

   Exhibit 8 includes confirmation that Dr Gayatri Majumdar believed that Egon had no capacity to made decisions about his place of residence and financial matters and had “no insight into his dementia”. Exhibit 8 also confirms that Egon was provisionally diagnosed with mixed vascular Alzheimer dementia and that Dr Zhou, the psychiatric registrar at Kenmore Hospital, advised that Egon did not have capacity.

6. [72]

   Ms Fraser refers to the following:

   1. (1)

      The document at CB 688, which is a report of Dr Malhotra, a consultant neurologist, dated 23 January 2021, which states:

   2. (2)

      A report of Dr Breathour, a general practitioner, of 25 March 2019, in which he states (see Exhibit B):

   3. (3)

      Section 13(6) of the Evidence Act, which provides that:

   4. (4)

      A medical certificate from Dr Majumdar, a geriatrician at the Kenmore Hospital, in which he states that Egon is “unable to attend court proceedings due to his dementia and risk of worsening his behavioural symptoms”: see CB 697. This certificate notes Egon’s admission date as 29 March 2021.

7. [73]

   Family members’ observations of Egon’s cognitive decline which, whilst not determinative, are relevant in considering the period of time for which Egon’s now undisputed condition had been present. The documents at CB 640-646, Exhibit 7 and Exhibit J are consistent with, for example, Rita’s evidence at T69.7-9 and see [70(4)] above. I take them into account. I observe too that Dr Malhotra noted that Egon presented with “three years history of memory difficulties at times” and that he “often mix[es] the dates up and sometime[s] forget[s] the … details of the conversation”: CB 687-688.

8. [74]

   Ms Fraser did not dispute that r 35.2 of the UCPR applied to Egon’s affidavits, however, she advanced the following contentions in support of her submission that the Court should grant leave to the Plaintiffs, pursuant to r 35.2(3) of the UCPR, to use both of Egon’s affidavits:

   1. (1)

      there is no evidence that Egon’s cognitive decline was progressive rather than episodic (see T15.2-3) (i.e. that Egon had capacity at the time of his second affidavit, but lacked capacity from March 2021, when he was admitted to Bega Hospital);

   2. (2)

      Dr Malhotra’s report, which predates Egon’s second affidavit, supports the conclusion that Egon had capacity in January 2021;

   3. (3)

      Jackie has not discharged her onus to prove that Egon lacked capacity pursuant to s 13 of the Evidence Act (see, in particular, s 13(6) of the Evidence Act); and

   4. (4)

      Egon’s capacity is best demonstrated by the evidence he gives in his second affidavit insofar as he recognises that his memory has declined and often concedes that he does not recall a particular conversation or event.

9. [75]

   In relation to [74(1)] and [74(2)], I am not satisfied, on the evidence before the Court, that Egon’s cognitive decline was episodic rather than progressive. There are several documents (see, eg, [70(2)] and [70(3)]) which record the family’s concerns that Egon’s mental health and cognitive function had been declining for at least 12-18 months prior to March 2021: see also paragraph 4 of Rita’s affidavit of 28 January 2021, Exhibit 7 and Exhibit J. Also of relevance to this conclusion is the fact that the documents to which reference is made at [70(2)] and [70(3)] are far more comprehensive in recording Egon’s medical history and present medical status than those proffered by Ms Fraser as supporting her submission that Egon’s decline was episodic and that he had capacity as at January 2021. Indeed, the document referred to at [72(2)] from Dr Breathour is so meagre in content as to provide almost no assistance to the Court in understanding Egon’s mental capacity. Even the report of Dr Malhotra is limited. I am, therefore, unable to accept the proposition that whilst Egon lacked capacity in March 2021 and was unable to make decisions concerning his place of residence (see Exhibit 8), he was of sound mind in January 2021. The short report of Dr Majumdar of 1 June 2021 to the effect that he had lost capacity as at that date notes Egon’s admission to the Kenmore dementia specific unit as at 29 March 2021 and it says nothing to support the contention that Egon had capacity at the time of his admission in March but had lost it by 1 June 2021.

10. [76]

    In relation to [74(3)], as Mr Harding explained in oral submissions, the Defendant was not seeking to rely on s 13 of the Evidence Act and thus, did not bear an onus to prove Egon’s lack of capacity pursuant to that section: see T19.3-8. Quite the contrary, it is the Plaintiffs who rely upon Egon’s lack of capacity as their justification for his unavailability for cross-examination. Mr Harding’s submission on Egon’s lack of capacity, as I understood it, was addressed to his overarching submission in respect of r 35.2 of the UCPR and, in the alternative, s 135 of the Evidence Act, that the Court should not grant leave for Egon’s affidavits to be used or should refuse to admit that evidence on the grounds of unfair prejudice to the Defendant.

11. [77]

    In relation to [74(4)], I do not accept the proposition that the Court can assess a witness’s capacity on the basis of an assertion that they are unable to recall a particular conversation or event. There may be several reasons why a witness fails to recall a particular conversation or event, one of which could, of course, be a decline in their cognitive function. I am not able, in the present circumstances, to draw an inference that Egon’s stated inability to recall particular conversations and events in his second affidavit is evidence of his capacity at the time of swearing that affidavit.

12. [78]

    I should note that Ms Fraser (at paragraph 196 of the PCS) contended that medical records should be treated “with considerable care” referring to what Basten JA had said in Mason v Demasi [2009] NSWCA 227 (“Demasi”) and the need for a Court to be mindful of distinguishing fact from opinion and whether facts may be inferred from opinion referring to Lithgow City Council v Jackson (2011) 244 CLR 352.

13. [79]

    In Demasi, Basten JA reiterated his view that apparent inconsistencies between what is asserted by a claimant in a personal injury action and what is contained in the records of health professionals “may, and often should, be approached with caution” for reasons that his Honour then sets out at [2]. To these cases can be added Davis v Council of the City of Wagga [2004] NSWCA 34 and Mastronardi v State of New South Wales [2009] NSWCA 270 at [87] but reference should also be made to Pullicino v Burden's Plumbing (Vic) Pty Ltd [2019] VSCA 88 (“Pullicino”).

14. [80]

    Given that part of the reason for the tender of medical records is to establish matters relating to the condition of Egon in circumstances where the material advanced by the Plaintiffs is extremely limited and the Plaintiffs assert that Egon cannot attend for cross-examination, I do not see any reason to treat the records of the health professionals with caution. I note that in Pullicino, the Victorian Court of Appeal at [76] regarded “the contemporaneous medical notes, records and radiological reports” as of “central importance to a complete understanding of the applicant’s pre‐work bilateral shoulder condition”.

15. [81]

    Although I do not accept Ms Fraser’s submissions set out at [74] above, I am nevertheless satisfied that the Court should grant leave to the Plaintiffs to use Egon’s first affidavit for the reasons adopted by Kunc J in Saravinovska (No 5) at [92]. Although there is evidence that supports the conclusion that Egon’s cognitive function has been declining for a number of years (see, eg, the document to which reference is made at [70(2)] above), and that he lacked mental capacity at the time that he swore his latest affidavit, I am not persuaded that he lacked the requisite mental capacity at the time that he swore his first affidavit.

16. [82]

    I indicated at the hearing that I would permit the Plaintiffs to rely on Egon’s first affidavit but would give further consideration in these reasons as to whether they can rely on the second.

17. [83]

    In coming to a view about Egon’s second affidavit, I have had regard to three matters:

    1. (1)

       the proximity of the date of the second affidavit and the date of the conclusion reached by those advising the Plaintiffs that he required a tutor and could not be called to give evidence in the proceedings;

    2. (2)

       the material which explains the very serious nature of Egon’s condition as at March 2021; and

    3. (3)

       the material which indicates that Egon’s condition was not of recent origin at March 2021.

18. [84]

    I am not persuaded that the Court should grant leave for that affidavit to be used. Much like Chris’ later affidavits in Saravinovska (No 5), Egon’s second affidavit was sworn so close in time to his admission to Bega Hospital, and subsequent diagnosis of mixed vascular Alzheimer dementia, which lead to the asserted inability to attend for cross-examination, that I am satisfied that his cognitive function is likely to have been seriously affected at the time that he swore that affidavit.

19. [85]

    Although I have granted leave, pursuant to r 35.2(3) of the UCPR, for the Plaintiffs to use Egon’s first affidavit, I will have to determine the weight to be ascribed to that affidavit, given the absence of cross-examination.

20. [86]

    Whilst I accept that Hallen J was, in Fulton, dealing with an affidavit the deponent of which had died prior to the hearing, I consider the principles his Honour there expounded to be relevant to the Court’s determination of the weight to be given to affidavit evidence given by a deponent who is unavailable for cross-examination due to incapacity where the Court has granted leave for that affidavit to be used pursuant to r 35.2(3) of the UCPR. At [111], his Honour said:

Hospital Notes

1. [87]

   I have earlier referred to the issue of hospital notes not only in relation to notes connected with Egon’s diagnosis but also to establish what Rita and other family members have reported to the hospital staff concerning Egon. Answers by Rita concerning her family history are also relevant and should be accorded due weight, particularly where an assertion is made that what Jackie has told the hospital was part of an unjustified attempt to keep her mother in hospital to advance Jackie’s own ends. I accept that Jackie told the hospital staff that her grandmother had depression and required ECT (see p.76 of Exhibit 7) but the evidence of what Rita told the staff demonstrates that Jackie was almost certainly reporting what she had heard from Rita. I accept that Jackie told staff she believed that Rita should not be discharged from hospital one day after her attempted suicide but I do not think any basis has been established for the assertion that that view was not genuine and did not have a legitimate basis. I note too that Jackie told the hospital that the current “stressors” for her mother at that time were “houses, hb’s [sic] illness, travel to Sdney [sic]”, which seems to be a fair and uncoloured assessment. The fact that the hospital subsequently formed the view that Rita could be discharged does not support the contentions made by the Plaintiffs. I should note too that the notes record Jackie as having told the hospital staff that Rita said to Jackie: “act normal bc [sic] ppl [sic] are watching, so what I’ll do it again (referring to suicide)”: see p.38 of Exhibit 7. The Plaintiffs assert that “it is unlikely that Rita told her any such thing”. That Rita had not told Jackie this was not put to Jackie in cross-examination and I note too that it is something that Jackie repeats in her October Letter to her father.

Expert Reports

1. [88]

   Two expert reports were received from the Defendant: one from Ms Melanie Holt of Documents in Dispute and one from Mr Daniel Hains of Vincents Computer Forensic Experts.

2. [89]

   Ms Holts’ report addresses, principally, whether the signatures on the Gift Letter that appear above the words “H.Egon Metzner” and “Rita E.Metzner” are the signatures of the Plaintiffs. Having had the benefit of analysing several specimen signatures of both Egon and Rita and comparing those specimen signatures to those on the Gift Letter (albeit not the original of the Gift Letter), Ms Holt reached the following opinion (CB 490):

3. [90]

   Ms Holt did say (CB 490):

4. [91]

   Mr Hains’ report was commissioned to identify the date upon which Jackie’s electronic copy of the Gift Letter, which she stored on a personal USB stick, was created and saved to that USB stick. Mr Hains’ report was commissioned to support the following evidence from Jackie (CB 423):

5. [92]

   Mr Hains’ review of a copy of what Jackie has described as “USB-X”, and the consequent opinion proffered, supports Jackie’s evidence that she did make a scan of the Gift Letter on the night of 16 September 2016.

6. [93]

   The Plaintiffs did not call any expert evidence that responded to the expert reports of Ms Holt and Mr Hains.

7. [94]

   Both experts were cross-examined by Ms Fraser. In her cross-examination of Ms Holt, Ms Fraser did not seek to challenge the conclusions reached by Ms Holt in her report. What she did, however, was attempt to build a case through Ms Holt that the signatures on the Gift Letter had been appended by means of a digital cut and paste. Ms Holt agreed that it would be possible for that to have been done but she did not agree that part of the signature of Rita on the Gift Letter had been cut off. I have no hesitation in accepting Ms Holt’s evidence.

8. [95]

   Mr Hains was cross-examined briefly. I have no hesitation in accepting his evidence.

The Gift Letter

1. [96]

   The Gift Letter, dated 16 September 2016, was first introduced into evidence by Jackie. On the face of the Gift Letter, Egon and Rita advised the Bank that they would provide an irrevocable gift to Jackie of $650,000. Jackie says she sought the assistance of her parents in the purchase of a property she was considering buying in 2016. The Gift Letter reads:

2. [97]

   The Gift Letter, if genuine, offers some support for Jackie’s case in that it demonstrates that in 2016, Egon and Rita were prepared to gift a significant amount of money to Jackie but it certainly had nothing to do with the purchase in 2017 of the Property. Nevertheless, the Gift Letter has taken on added significance because Rita denies any knowledge of it, asserting that she and Egon found it in their safe when looking for the Certificate of Title for the Property in late 2018: see T99.10-22.

3. [98]

   A copy of the Gift Letter was produced by the Bank in answer to a subpoena. A further copy of the Gift Letter was tendered by Ms Fraser (Exhibit N) at the hearing in June 2021. That copy of the Gift Letter, which was created and produced by Marilyn, was tendered in support of Ms Fraser’s submission that the Gift Letter (i.e. the copy of the Gift Letter introduced into evidence by Jackie) is, in fact, a forgery. For reasons that I will expand upon below, I reject the tender of Exhibit N (which was admitted provisionally because of Mr Harding’s objection) pursuant to s 135(a) of the Evidence Act.

4. [99]

   Jackie’s evidence is that her father gave her the letter on 16 September 2016 and that she photocopied it at her parents’ house using her father’s photocopier and then scanned it at home on her photocopier. She says she did not take the original from her parent’s home. Mr Hains, as I have noted, confirms that a copy of the Gift Letter was scanned on Jackie’s Canon printer on 16 September 2016 which, it should be noted, predates by a long period the purchase of the Property.

5. [100]

   The Plaintiffs have sought to advance the contention that Jackie forged their signatures on the Gift Letter. This contention was not advanced in any pleading and nor was it supported by any expert report prepared on behalf of the Plaintiffs.

6. [101]

   The Gift Letter was first annexed to the affidavit of Jackie in her affidavit of 18 February 2021. The Plaintiffs responded saying that they had not signed that document. Jackie’s solicitors then arranged for the experts to whom I have earlier referred to ascertain whether the signatures on the Gift Letter were those of Egon and Rita and whether the letter was in existence in 2016. The Plaintiffs accepted that the signature looked like their signature. The Plaintiffs also accepted that the Gift Letter has been typed on Egon’s typewriter and did not dispute that they had a copy of the Gift Letter said to have been found in their safe.

7. [102]

   At the second day of the hearing in June 2021, Mr Harding took issue with what appeared initially (and which was later confirmed) to be an allegation advanced by the Plaintiffs that Jackie, as a matter of fact, forged the Gift Letter; i.e. it was only at the hearing that an allegation of forgery was explicitly raised by the Plaintiffs. Mr Harding initially submitted that the allegation of forgery ought to have been pleaded pursuant to r 14.14(3) of the UCPR (see T298.46-T299.21), however, he (correctly in my view) later abandoned that submission (see T436.38-39) and asserted that the absence of procedural fairness (i.e. that the forgery submission was not put to Jackie until she was in cross-examination) ought to have precluded the Court’s acceptance of the Plaintiffs’ forgery submission.

8. [103]

   I consider this Court’s decision in Newnham v Wakefield [2002] NSWSC 1152 and the Court of Appeal’s decisions in 3WJ Pty Ltd and Anor v Kanj [2008] NSWCA 321 (“3WJ”) and Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 (“Ghazal”) to have relevance to the present issue.

9. [104]

   Even though the assertion that Jackie had forged the Gift Letter was not required to be pleaded, it was a serious allegation. As Ipp JA (with whom Allsop P and Hodgson JA agreed) said in 3WJ (at [12]) (with reference to what was said in Ghazal by Kirby P at 344G-346D and Mahoney JA at 347F-348A):

10. [105]

    At T192.37-T193.2 there was this cross-examination of Jackie:

11. [106]

    Ms Holt did not agree with the proposition put to her by Ms Fraser that Exhibit C showed an incomplete signature of Rita and that the tail of the “R” in Rita was cut off: see T320.10-12. It was put to Ms Holt, in a roundabout way, that it would have been possible to cut and paste Rita’s signature from another document onto the Gift Letter by using a computer application such as Word or Photoshop. If that proposition was to be accepted, on Ms Holt’s evidence, it must have been done by using a freehand cut and paste method rather than a “box” cut and paste method, as several parts of Rita’s signature would have been incomplete if a “box” cut and paste method was employed and in Ms Holt’s opinion, it was not incomplete: see T320.37-43. Ms Holt was unaware whether Word contained a freehand cut and paste functionality but accepted that Photoshop did have such a functionality. These matters were not put to Jackie in cross-examination (i.e. that she used Photoshop or a similar computer application to perform a freehand cut and paste of Rita’s signature).

12. [107]

    Whilst Jackie was cross-examined on whether it would be possible to cut her parents’ signatures from another document and paste those signatures onto the Gift Letter (and she said it was), she was not asked whether she actually did that and Ms Fraser, in the passage I have set out at [105] above, told Jackie that she was not saying that she had done so or not, which makes the allegations of forgery contained in the PCS even more unjustified.

13. [108]

    The requirement to make the assertion of forgery clear has not been met, even in cross-examination of Jackie and Ms Holt, and this failure is given additional cogency here because of the attempt by the Plaintiffs to introduce a piece of evidence through cross-examination of Ms Holt; a matter with which I shall now deal.

14. [109]

    At [98] above, I referred to Exhibit N and that Ms Fraser sought to rely upon that document in support of her submission that Jackie forged the Gift Letter. Exhibit N, as I have mentioned, is a copy of the Gift Letter that was created by Marilyn on a printer at the place of her employment. In oral evidence in reply, Marilyn gave the following evidence as to the provenance of Exhibit N (at T445.8-34):

15. [110]

    Exhibit N appeared to be advanced by Ms Fraser as supporting the proposition that, as the trash marks on Exhibit N (particularly those surrounding the signatures of both Plaintiffs) are more pronounced, the Gift Letter was forged by Jackie: see PCS at paragraph 169. The essential proposition was not accepted by Ms Holt in cross-examination (see T330.33-35; see also T318.46-T322.1), but in any event, there is no need for the Court to consider this issue because I refuse to admit that document into evidence pursuant to s 135(a) of the Evidence Act. I do so for the following reasons:

    1. (1)

       Despite having an opportunity to do so, Egon and Rita did not request that Ms Holt be provided with a copy of Exhibit N prior to her cross-examination. By their failure to do so, Egon and Rita sought or, at the very least, the practical result was, to take Ms Holt by surprise and put to her, in cross-examination, that Exhibit N supported their proposition that Jackie forged the Gift Letter. Whilst Ms Holt would have been aware that the authenticity of the Gift Letter was in question, she was not made aware, prior to the hearing, that it would be alleged that genuine signatures of the Plaintiffs had been cut and pasted into a new document to create in effect a forged letter and that her views on that theory would be sought. The course adopted by the Plaintiffs did not give Ms Holt a reasonable opportunity to consider the document in an environment where she could have properly examined that document with, if appropriate, the requisite equipment (see, eg, CB 483) and with knowledge of what was being asserted.

    2. (2)

       It was entirely open to the Plaintiffs to seek a written report from an expert of their choosing to whom they could have put Exhibit N and the attendant questions, including whether the findings of the expert supported the contention that Jackie forged the Gift Letter. As I have already mentioned, they did not do so.

    3. (3)

       The approach adopted by the Plaintiffs did not give Jackie a reasonable opportunity to consider the allegations made against her, nor to put the appropriate questions to Ms Holt in relation to Exhibit N. Certain forensic decisions could have been made by the Defendant if advised in advance that Ms Fraser intended to show Exhibit N to Ms Holt in cross-examination and put questions to her in relation to that document. For instance, Jackie may have:

16. [111]

    These reasons, individually and collectively, illustrate, in my view, the prejudice that the Defendant would suffer if Exhibit N was admitted into evidence. I therefore refuse to admit that document into evidence.

17. [112]

    For the reasons given, I am of the view that the Plaintiffs should not be permitted to advance the claim that Jackie forged their signatures, but I should add that in any event, the allegation that Jackie forged her parents’ signatures in order to defraud the bank or her parents is a serious one and there is insufficient evidence to support it for the following reasons:

    1. (1)

       There is no evidence that she loaded an unsigned letter to her computer.

    2. (2)

       It was not squarely put to her that she had done so.

    3. (3)

       I have set out the cross-examination at T192.37-T193.2 above: see [105]. As the DCS points out, the Court is concerned not with possibilities, but probabilities (see Strong v Woolworths Ltd (2012) 246 CLR 182 at 196-7 per French CJ, Gummow, Crennan and Bell JJ) and the evidence in support of probability must rise above the level of conjecture: Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68] per McColl JA, with whom Campbell and Macfarlan JJA agreed.

    4. (4)

       I have referred earlier to the cross-examination of Ms Holt and the answers which she gave which did not support the theory being advanced by Ms Fraser.

    5. (5)

       The Gift Letter contains a spelling of Jackie’s name (i.e. “Jacqueline”) that she did not use, but that her parents did use. It was not put to Jackie that she had typed the letter and had deliberately used the wrong spelling of her name (and of the word “mobile”).

    6. (6)

       The notion that Jackie would have typed the document on her father’s typewriter with spelling errors and with a misspelling of her own name in order to give an air of authenticity to it does not make sense, particularly because the bank would have no reason to focus on such detail.

    7. (7)

       If she had prepared the document without any involvement of her parents, it would make no sense for her to put a copy of it in the safe at her parents’ home.

    8. (8)

       The conclusion that the Plaintiffs did not sign the letter required acceptance of Rita ‘s evidence that although the signature looks like hers and it looks as if the letter was typed on Egon’s typewriter, she did not sign it (see CB 625, paragraph 178 of Rita’s affidavit of 28 January 2021) and I do not regard Rita as a reliable witness.

    9. (9)

       The Court has refused to admit Exhibit N, which, Ms Fraser asserted, supported her proposition that the Gift Letter was forged.

    10. (10)

        It was never put to Jackie that:

Other Evidentiary Matters

1. [113]

   I have, in the preceding paragraphs, dealt with the credibility of witnesses. Before I express my factual findings, I will need to say more about some of the factual issues (other than the Gift Letter) which have arisen and been canvassed in the submissions of Counsel or arise out of the evidence.

2. [114]

   The primary purpose for the Plaintiffs’ purchase of a property in the Southern Highlands was so they could have a place closer to Sydney than Jindabyne to stay at when they needed to travel to Sydney. The Plaintiffs, particularly Egon, had several pressing medical needs at the time of their purchase of the Property and it is clear from the evidence that whether or not they intended to gift the Property to Jackie, the Property was intended to be one from which they could easily and quickly travel to Sydney to attend medical appointments and that they would be able to use it whenever they wanted.

3. [115]

   Mrs Fraser referred to the Plaintiffs’ financial position as at 2017 (see paragraph 72-79 of the PCS) and at paragraph 79 of the PCS contended that “[t]he idea that they would spend $900K of those assets buying a house for Jackie defies common sense”. There is other evidence of the Plaintiffs’ assets and the tax returns of Rita and Egon really do not reflect their overall financial position and it is not unimportant that Rita and Egon wanted (and were able to afford) a property that they could use whenever they needed and one that would not be rented out to anyone else. In that context, gifting the Property to Jackie was far less significant provided Jackie accepted (as she has always done) that it was there for their use whenever they wanted.

4. [116]

   I should also mention that Ms Fraser contended that the Plaintiffs were under no obligation to support Jackie and “had done all that caring parents could do to assist her”: see paragraph 71 of the PCS. The presumption of advancement is not based on establishing that the parents had an obligation to make a gift or had not done all they could to assist their child. It is true that the presumption of advancement can be rebutted inferentially, as was demonstrated in Brown v Brown (1993) 31 NSWLR 582 (“Brown v Brown”) but the facts of this case are far removed from those in Brown v Brown, in which the mother had, on the son’s case, given the bulk of her remaining estate to him, and see Woodley v Woodley [2018] WASC 333 at [62(e)] and [64(b)] (“Woodley”). As the DCS points out, no authority has been identified by the Plaintiffs to support the contention that the presumption of advancement ceases to operate if the parents have previously provided significant gifts (and Woodley is against that proposition) and nor is it incumbent on the recipient to establish that the donor’s financial position could support a gift. At the time of the gift, the Plaintiffs have not, in any event, been shown to be financially disadvantaged. There is another aspect relevant here too. There is no dispute that although Kieran had assets and may well be a businessman of substance, none of the properties he held are jointly owned by Jackie and it is not suggested that Jackie had a financial interest in Kieran’s business. The undisputed fact is that as at 2017, Jackie owned no real estate and did not have substantial assets.

5. [117]

   The contention (see paragraph 84 of the PCS) that had Egon and Rita known that Jackie had a gambling problem, they would not have put the Property in her name seems to introduce an irrelevancy and it was not the subject of evidence from either Plaintiff.

6. [118]

   Paragraph 85 of the PCS asserts that the presumption of advancement is “not operative” in the circumstances of this case but I do not accept that is so.

7. [119]

   At paragraph 88 of the PCS, Ms Fraser asserts that Jackie’s evidence that she did not know the financial circumstances of her parents as at 2017 should be rejected. No basis has been advanced for that contention. The passage at T243.30-37 does not establish that she was “indifferent”. The submission at paragraph 89 of the PCS assumes that Jackie did know the details of her parents’ financial position and that she was indifferent.

8. [120]

   I have referred to the content of the 2012 Wills of Egon and Rita. I think that it is clear that Egon and Rita had decided long before 2017 to put Marilyn out of their lives. Their Wills manifest the clearest intention that they did not want Marilyn to receive any part of their estate. A decision to provide the funds for the Property to enable Jackie to own a house is entirely consistent with the desire to reduce the available assets for provision to Marilyn should she make a claim. At the time of their purchase of the Property, Rita and Egon had sold their home in Bonnet Bay, owned the Jindabyne Property and were not in any obvious way in need of income from another house. The situation changed when the Burradoo Property was purchased, and Egon refused to sell the Jindabyne Property but that was not the position when the Property was purchased.

9. [121]

   I am not persuaded, contrary to the contentions in the PCS and the evidence of Rita, that Rita and Egon’s antipathy to Marilyn was fuelled or generated by Jackie, as Rita tried to portray the situation. I have referred earlier to the content of the addendum to the 2012 Wills. Jackie admitted that she knew in 2012 that her parents were upset because they had had no contact with Marilyn for a number of years: T165.34-39. Jackie also agreed that she had told Marilyn that both Egon and Rita were ill, and that she (Jackie) had told her parents that Marilyn had told her that Marilyn “did not want to see them, and did not care for them”: T165.40-45. It was put to Jackie that that assertion was incorrect (see T165.46) but Marilyn, although called as a witness, did not address this topic and therefore did not provide any evidence disputing Jackie’s evidence as to her discussions with Marilyn.

10. [122]

    I have previously referred to the deterioration of relations between the Plaintiffs and Jackie. There is no doubt that by the end of 2018, Jackie’s favoured status had ended. It appears that Rita was angry at Jackie for having had her admitted to a psychiatric hospital following Rita’s attempted suicide (see T72.43-T73.4), and this despite the fact that Rita did accept in cross-examination that it was the doctor’s decision to detain her, and she had recognised that whilst she did not want to be hospitalised, she knew she had to be: see p.119 of Exhibit J and see T72.23-30. Rita, it is not disputed, had attempted to take her own life: see paragraph 194 of the PCS. I should note that there are some indicators in the evidence that Jackie was far closer to Egon than to Rita – the October Letter says as much and there is a comment by Egon to Rita in Rita’s affidavit of 28 January 2021 in which Egon seems to blame Rita for the problems with both Marilyn and Jackie: see CB 617, paragraph 88 of Rita’s affidavit of 28 January 2021.

11. [123]

    Jackie claims that she offered to sell the Property when the problems with the Burradoo Property arose and that Egon said that he did not want her to do that: see paragraph 72 of Jackie’s affidavit of 11 June 2020. The note to which I have referred at [15(21)] is consistent with that, as is Kieran’s evidence. There is no dispute that Rita and Egon decided to buy the Burradoo Property and it is not suggested that they raised with Jackie a request or demand that the Property be sold at that point; rather, it was when Jindabyne had not been sold, on both Egon’s and Rita’s evidence, that the Plaintiffs asked Jackie to mortgage or sell: see CB 84 and 158.

12. [124]

    I have given consideration as to what motivated Egon and Rita to put the Property in Jackie’s name. Egon was certainly well disposed to Jackie until September 2018 and on his own evidence said to Rita before the idea of purchasing the Property in Jackie’s name was canvassed that (see paragraph 42 of Egon’s affidavit referred to in [19(1)] above):

13. [125]

    I should note that at T172.11-33, Ms Fraser put to Jackie that Egon had said to Jackie “[i]f we buy it, it will be yours if we still have the house when we die”. What was put by Ms Fraser conflates what Egon says he said to Rita (albeit in Jackie’s presence) with what, on his evidence, he said to Jackie after Jackie had requested the Property be put in her name: see CB 83, paragraphs 42-44 of Egon’s affidavit of 18 November 2019. Jackie was correct to question (at T172.13) from where the content of the question had been derived.

14. [126]

    There is a significant contest between Egon supported by Rita on the one hand, and Jackie on the other. As I have explained, the credit of Rita was severely impugned and there are reasons to doubt the veracity of Jackie and the witnesses she called, save for Ms Rendall and the expert witnesses. I find it difficult in the circumstances to accept Egon’s version of contested events where Jackie’s Counsel has not had the opportunity of cross-examining Egon and even less so where his version of events and Rita’s version are not consistent and there is no corroboration of his assertions in any contemporaneous note.

15. [127]

    In her first affidavit (CB 153-162), Rita gives no evidence of any conversation with Egon or Jackie concerning the purchase of the Property in Jackie’s name prior to the meeting with Ms Rendall. She asserts that whilst sitting at the table in Ms Rendall’s office, “Jackie said that she would have to pay stamp duty if the house was in our name when we died” (see CB 157) and that Egon said to Ms Rendall:

16. [128]

    There are some problems with that version of events, leaving aside Jackie’s evidence in contradiction:

    1. (1)

       It is clear that the decision to buy, in Jackie’s name, had been made at least by 23 May 2017 because the real estate agent was told on that date that Jackie would be the purchaser.

    2. (2)

       Rita’s version suggests that there was no discussion between Egon and Rita at all, but “we decided” implies that there had been, and that the decision had been made prior to the meeting (which it clearly had).

    3. (3)

       Ms Rendall denies that any mention was made of stamp duty implications (see T263.17-23) and her denial was not challenged or otherwise impugned.

    4. (4)

       It was not put to Ms Rendall in cross-examination that Egon had mentioned Marilyn as a reason for putting the Property in Jackie’s name.

    5. (5)

       Whilst Ms Rendall accepts that she was told that the Plaintiffs would be using the Property as they needed to be closer to Sydney than Jindabyne because of medical appointments, Ms Rendall denies that Egon said anything that suggested there was any other qualification to the purchase in Jackie’s name. Her file note records no discussion consistent with any other restriction on Jackie’s proposed ownership.

    6. (6)

       Egon, in his first affidavit, asserts that he said the following at the real estate agent’s office:

    7. (7)

       Egon’s version of the conversation has Jackie asking if she can have the Property put in her name because she is worried about Marilyn and about paying $19,000 to have it put in her name. Rita’s first affidavit refers to “stamp duty” and makes no mention of Marilyn, but her second affidavit does mention what I will refer to as the Marilyn rationale.

    8. (8)

       When Rita asserted that as at August 2018, she would never forgive Jackie (see T74.30-34), I asked her what it was she would not forgive her for: see T74.36-40. Rita said that it was “the way [Jackie] treated [her] for some time before. [She] had a lot of issues with [Jackie]”: see T74.36-40. Neither then, nor at the time of her admission, did she, according to the hospital notes at least, assert that Jackie had taken a position in respect to the Property that upset her.

    9. (9)

       There is in a sense an inherent inconsistency in the Plaintiffs position – they assert that they were induced to put the Property in Jackie’s name by Jackie because Jackie said she did not want problems with Marilyn. The Plaintiffs’ intention must have been, therefore, to ensure that the Property did not form part of their assets and hence long-term be part of their estate. That intention is inconsistent with any intention to retain the beneficial interest in the Property. Putting the Property in Jackie’s name would not keep the Property out of the Plaintiffs’ estates if they retained the beneficial interest.

    10. (10)

        Rita is recorded as having told the hospital staff that Egon had told her that they could not sell the Property because it was Jackie’s property: see [15(21)] above. Rita denied having told the hospital staff that fact (see T73.28-33) and denied Egon having told her that: T72.28-30. For the reasons previously outlined, I do not have any confidence in Rita’s reliability as a witness.

    11. (11)

        Putting the Property in Jackie’s name would not preclude stamp duty being payable on her parents’ death since none is payable on a transfer from an estate. Further, the stamp duty payable on the purchase of the Property was $33,310 (see AF 37) although I note that Egon asserts that he was advised by the real estate agent that the stamp duty payable would have been approximately $19,000.

    12. (12)

        There is no evidence to suggest that Jackie thought that stamp duty would be payable on a transfer on death or that she had formed the view that putting the Property in her name would preclude Marilyn from claiming against the estate of either or both of Egon or Rita. It seems likely that Rita saw Jackie as in some way responsible for the Plaintiffs’ inability to retain the Burradoo Property.

    13. (13)

        On Rita’s evidence, Jackie refused to sell or mortgage the Property. On Jackie’s evidence, Egon did not want her to do that and the hospital note at [15(21)] supports that.

17. [129]

    If, in fact, Jackie thought that provision of the purchase funds by way of a gift would reduce the extent of her parents’ estates, and that this would reduce the risk of money going to Marilyn should Marilyn make a claim, Jackie was entitled to think it would and was not required to dissuade her parents from that course. I do not accept the contentions of Ms Fraser in the PCS (at paragraph 93) that Jackie could be seen as giving advice of a legal or financial nature.

18. [130]

    As will be apparent from the matters to which I have already referred, the case became a tangled web of contradictions. I have already given examples of this, but I shall give several further examples:

    1. (1)

       The Plaintiffs claim that Jackie would not agree to sell the Property (thus demonstrating her incalcitrance, says Ms Fraser). Jackie says she did offer to sell the Property (see T223.10) and the October Letter is consistent with that intention, as is Kieran’s evidence.

    2. (2)

       Rita says that Jackie was present at the Plaintiffs meeting with Ms Rendall and says that Egon mentioned the stamp duty rationale. In her later affidavit, Rita says that it was Jackie who said she did not want to pay stamp duty and also raised the Marilyn rationale: see CB 615, paragraph 59 of Rita’ affidavit dated 28 January 2021. Jackie says that at the meeting, Egon and Rita advanced the Marilyn rationale and asserts that “[t]here was never a discussion about stamp duty”: T178.46-48. Ms Rendall does not recall if Jackie was present and her evidence undermines the claim that the stamp duty rationale or the Marilyn rationale were mentioned by Egon or Jackie.

    3. (3)

       Egon and Rita both deny that they did not know that Jackie had become a third purchaser of the Burradoo Property. Whilst there is no documentary evidence of who instructed the Shire Conveyancer that Jackie was to be included as a purchaser, the Shire Conveyancer did write to the Plaintiffs making it clear that the purchase would be in their names and also in Jackie’s name: see Exhibit 5 and Egon annexed to his affidavit documents showing that Jackie was a borrower of funds from the Bank: see CB132-133.

    4. (4)

       The PCS claims that Jackie had no assets and was a poor credit risk, but also that she was very well off because her husband was rich and had many assets: see PCS at paragraphs 72 and 129.

    5. (5)

       Jackie completed an application for finance in connection with the Burradoo Property purchase (i.e. well after the purchase of the Property) which showed her parents as the owner of the Property (see Exhibit E), but another application prepared by Jackie and signed by the Plaintiffs showed the Jindabyne Property as the Plaintiffs’ only real estate asset: see AF 137-144.

19. [131]

    The PCS and PCSR are replete with assertions made concerning Jackie that were never put to Jackie. I shall give some non-exhaustive examples of this:

    1. (1)

       Jackie exaggerated Rita’s behaviour when discussing Rita with hospital staff following Rita’s attempted suicide.

    2. (2)

       Jackie should have arranged an ambulance to take Egon to hospital rather than driving him herself: see PCSR at paragraph 22(c).

    3. (3)

       That Jackie’s claim that she was in a very emotional state when she wrote the October Letter was impliedly not genuine: see paragraph 30(f) of the PCSR.

    4. (4)

       Jackie had an extensive involvement in her parents’ affairs: paragraph 28 of the PCSR.

    5. (5)

       It is impossible to paint five rooms at the Property at a cost of material of $75.25 plus $254.61: see paragraph 140(c) of the PCSR.

    6. (6)

       The following assertion (see paragraph 178 of the PCSR):

    7. (7)

       Ms Fraser submitted that there was nothing in the hospital notes showing reference by Jackie to the fact that the home that Jackie was taking Rita to was not owned by Rita: see PCSR at paragraph 23. I can see no basis for the suggestion that Jackie should have said any such thing to the staff and in any event, Jackie was not asked about this.

    8. (8)

       The matters identified in [14] above which are, in effect, rolled up assertions of misconduct for which no basis has been adequately articulated.

20. [132]

    Ms Fraser in the PCS sought to deflect criticism of her failure to squarely confront witnesses with accusations of lies and dishonesty: see PCS paragraphs 214-220. Whilst it may sometimes be unnecessary to positively put to a witness that he or she is lying because it is so obvious from the overall tenor of the cross-examination, Counsel cannot, in my view, fail to put the detail of alleged lies, dishonesty or wrongdoing and then make submissions based on the matters not put to the witness. “Willing to wound, and yet afraid to strike” was Alexander Pope’s phrase referred to by Wells J in Reid v Kerr (1974) 9 SASR 367 at 374 in explaining the rule in Browne v Dunn (1893) 6 R 67. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16, Hunt J (as his Honour then was) formulated the rule as:

21. [133]

    In J D Heydon, Cross on Evidence (Looseleaf Edition, LexisNexis), the learned author discussed the consequences of a failure to adhere to the rule noting at [17460] that what follows “leaves aside ethical sanctions” and after considering various scenarios, the closest of which to the present circumstance is at 17,164, refers to Seymour v Australian Broadcasting Corporation (1977) 19 NSWLR 219 at 225 and 237 (“Seymour”). In Seymour, Glass JA (with whom Reynolds JA concurred) said at 225B-C:

22. [134]

    In my view, none of the matters identified at [131(1)]-[131(8)] or elsewhere in these reasons, including at [112(2)] and [112(10)], as matters that were not put to Jackie should be taken into account. Consideration may need to be given as to whether there should be any further consequence.

23. [135]

    I have outlined the difficulties in accepting the Plaintiffs’ case. There are also potential obstacles in accepting Jackie’s version of events which need to be considered as well. In addition to the credit points to which I have earlier referred, the PCS draws attention to the following:

    1. (1)

       Jackie’s email to the storage company (see AF 41);

    2. (2)

       the October Letter (see AF 174-179);

    3. (3)

       the November Letter (see AF 180-181);

    4. (4)

       Ms Rendall’s letter of 16 January 2019, which was not sent on Jackie’s instructions, but which Jackie did nothing to correct (see AF 189-190) and

    5. (5)

       that she had, in a document in 2018, included the Property as an asset of her parents.

24. [136]

    In relation to item [135(1)], there was no obvious need for Jackie to explain to the storage depot that her parents had purchased the Property for their own use but for Jackie’s long-term benefit.

25. [137]

    Turning to the October Letter (see item [135(2)]), it is by no means limited to the issue of the Property, indeed, I think it does reflect Jackie’s feelings of concern at what had become a most serious turn of events in her relationship with her parents. The portion dealing with the Property is found at AF 178. By her letter, Jackie seems willing to sell the Property, but I think that it cannot be taken as an admission that the Property was not purchased as a gift because she states:

26. [138]

    I should also note in fairness to Jackie that in my questions to her at T222.47-T223.20 I asked if Burradoo had been sold by that stage; a proposition with which she agreed (see T233.6) but the October Letter seems to have been written with the understanding that the Plaintiffs still owned the Burradoo Property and it is only in the November Letter that Jackie indicates that she had become aware of the sale of the Burradoo Property. With that in mind, her concession at T223.4-20 concerning the letter is of little, if any, significance. Jackie could well have thought that sale of the Property would permit the purchase of the Burradoo Property to be completed and it is her evidence (disputed by her parents) that she was willing to assist them by selling the Property.

27. [139]

    Jackie’s willingness to agree in October 2018 to a sale of the Property is not of itself evidence that the Property had not been intended as a gift in May 2017.

28. [140]

    In the November Letter (see [135(3)] above), whilst Jackie does not assert that the Property was a gift, she does implicitly assert an entitlement to some portion of the proceeds of sale.

29. [141]

    In her letter to Egon (see [135(4)] above), Ms Rendall wrote:

30. [142]

    Whilst Jackie did, in 2018, include the Property as an asset of her parents in one document, in another document, the only real estate of the parents recorded is Jindabyne.

31. [143]

    If the Gift Letter is genuine, it provides corroboration of a willingness to assist Jackie in 2016 in connection with the purchase by Jackie of a property should she find such a property and wish to proceed. It is not, however, proof of an intention eight months later to gift the Property to Jackie. I proceed on the basis that the Plaintiffs did sign the original of that letter, but there is doubt as to the real purpose of the letter and I accordingly prefer not to base my conclusions on it.

32. [144]

    In relation to what was paid by the Plaintiffs and what was paid by Jackie, it is clear that the great bulk of the expenses were paid by the Plaintiffs. Whilst this might have significance in another situation, here, it was clear that it was the parents who would be using the Property so it is not surprising that they would be paying those bills.

33. [145]

    To summarise the position in relation to the key factual allegations:

    1. (1)

       I accept that the Plaintiffs assert that they did not intend to make a gift of the funds used to purchase the Property, but Egon is unavailable for cross-examination and his evidence could not, therefore, be tested. His assertions are not only contested by Jackie, but his version of events is inconsistent in some respects with Rita’s version;

    2. (2)

       Rita is, in my view, not a reliable witness;

    3. (3)

       There are issues of credit in respect of Jackie as well;

    4. (4)

       There are questions concerning the veracity of the evidence of each of Kieran, John, Erika and Mrs Niemeyer, all of whom gave evidence of what would, if the evidence is accepted, constitute admissions against interest by Egon and Rita made well after the purchase of the Property;

    5. (5)

       There is one lay witness, Ms Rendall, whose evidence I accept and who made a short contemporaneous note of the meeting held with Egon and Rita (and possibly Jackie) concerning the purchase of the Property.

34. [146]

    I proceed on the basis of accepting Ms Rendall’s evidence as to what occurred on 26 May 2017 and rejecting both Rita and Jackie’s version. Whilst Egon gives no evidence concerning the meeting with Rita, he does give evidence as to a prior discussion with Rita and Jackie. Taking all matters into account, including the significant fact of the absence of cross-examination of Egon and noting the absence of any corroboration by Rita in respect of a conversation occurring before the meeting with Ms Rendall, I am not persuaded that the conversation occurred in the terms he deposes. I accept, however, that he did make clear to Jackie prior to the meeting with Ms Rendall that he and Rita intended the Property to be available for their use whenever they wanted.

35. [147]

    The factual findings which I make are as follows:

    1. (1)

       Egon and Rita provided all of the purchase money for the Property.

    2. (2)

       Egon and Rita told the real estate agent that Jackie would be the purchaser.

    3. (3)

       Egon told Ms Robinson of Shire Conveyancer on 25 May 2017 that he would be purchasing the Property for Jackie (see AF 31). The decision by the Plaintiffs to buy the Property in Jackie’s name had been made by that date.

    4. (4)

       Egon, on 26 May 2017, told Ms Rendall in the presence of Rita and Jackie:

    5. (5)

       Neither Egon, nor Rita, told Ms Rendall that Jackie would be holding the Property on trust for them or that they intended that it would only become Jackie’s when they died, and nor am I persuaded that they expressed any such qualification to Jackie.

    6. (6)

       Neither Egon, Rita nor Jackie said anything about Marilyn or stamp duty at the meeting with Ms Rendall.

    7. (7)

       By 2012, the Plaintiffs had long ceased to have any connection with Marilyn and concluded that Marilyn wished to have nothing further to do with them. That was the position in 2017 and it has not been demonstrated to have been caused or even contributed to by Jackie.

    8. (8)

       The Plaintiffs, as at 2017, regarded Jackie as their only daughter and had a close, loving relationship with her. Jackie assisted them in connection with their purchasing of properties and, at least, when asked in connection with other matters such as helping them move houses and typing long letters which required use of a computer (and here, I leave aside the contentious matters referred to in [31] above).

    9. (9)

       By late 2018, Marilyn had found favour and Jackie was decidedly out of favour to the point where, by March 2019, Jackie was no longer included as a beneficiary in the Plaintiffs’ Wills and Marilyn was included as a beneficiary as were Marilyn’s children.

    10. (10)

        I am not persuaded that:

    11. (11)

        It was Egon and Rita’s intention and understanding that they would be able to utilise the Property whenever and for whatever period they wanted, and Jackie understood and accepted that was their intention. Jackie also accepted that she was not free to sell the Property whilst either of the Plaintiffs were alive.

The Pleaded Representations

1. [148]

   The Plaintiffs have not established, on the balance of probabilities, that Jackie made the alleged representations, but I should note my view that:

   1. (1)

      if Jackie did express a concern about stamp duty implications, she could not reasonably be understood to be expressing a view based on legal advice; and

   2. (2)

      if Jackie did express a view as to reducing the assets in respect of what any future claim by Marilyn would relate, a gift of the Property to Jackie would have removed from the estates an asset and it has not been demonstrated that it was a view she was not entitled to hold or convey.

Resulting Trust

1. [149]

   I now turn to the principal question to be determined; whether a resulting trust applies in favour of the Plaintiffs. If the Court finds that a resulting trust or some form of interest in the Property applies in favour of the Plaintiffs, then ancillary relief will also need to be considered, including whether legal ownership in the Property should be transferred to the Plaintiffs.

2. [150]

   The principles applicable to the present dispute were helpfully summarised by Tottle J in Woodley (at [63]):

3. [151]

   The presumptions can be rebutted by evidence of the actual intention of the purchaser (see Calverley v Green (1984) 155 CLR 242 at 251 per Gibbs CJ (“Calverley v Green”)) but the presumption of advancement negates the presumption that normally flows from the provision of the purchase monies. The DCS point out that the time at which the intention must be established is the time of purchase or immediately thereafter: see Calverley v Green at 251 and 262 (per Mason and Brennan JJ); and see Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365 (“Charles Marshall”). I shall say more concerning [63(c)] of Woodley below.

4. [152]

   Judgments in the High Court and elsewhere have pointed out that what has been described as the presumption of advancement is not really a presumption but rather, that there are relationships in which equity infers that any benefit provided to another has been provided for advancement. The provision of funds by a parent to a child for the purchase of a property falls within that class of relationships: see Nelson v Nelson (1995) 184 CLR 538 at 547-9 per Deane and Gummow JJ and 574 per Dawson J (“Nelson v Nelson”); Anderson v McPherson [No 2] [2012] WASC 19 at [128]-[141] per Edelman J (“Anderson v McPherson”); and see Flourentzou v Spink [2019] NSWCA 315 at [17]. As was remarked by the High Court in Nelson v Nelson (at 548), and noted by Edelman J in Anderson v McPherson (at [115]), many disputes have been resolved and transactions effected on the foundation of the presumption.

5. [153]

   The presumption of a resulting trust can be rebutted by evidence of the actual intention of the party/parties who provided the funds for the purchase of the property in question. In Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495, which was upheld on appeal (see Jain v Amit Laundry Pty Ltd [2019] NSWCA 20), Ward CJ in Eq explained the search for the actual intention of the parties providing the funds for the purchase of the property in question in the following terms (at [165]):

6. [154]

   In Charles Marshall, the Court said of the presumption of advancement that it (at 365):

7. [155]

   These cases point to the absence of relevance of the subjective intention of the donors. There are, however, authoritative statements which support the admissibility of such evidence at least where there is a single donor: see Martin v Martin (1959) 110 CLR 297 at 303-5 (“Martin v Martin”), although at 304, the Court made reference to the need for caution because of the witness’s clear interest and such evidence being “liable to observations which tend to diminish its weight”: Dumper v Dumper (1862) 3 Giff 583 at 590 per Stuart VC, quoted in Martin v Martin at 304. In Calverley v Green, Mason and Brennan JJ said (at 261):

8. [156]

   In Cone v Burch [2010] NSWCA 168, Giles JA, with whom Beazley JA (as her Excellency then was) and Macfarlan JA agreed, commented (at [30]) that:

9. [157]

   At paragraph 43 of Egon’s affidavit (which was objected to and rejected at the hearing in June 2021), he deposed, with reference to paragraph 42 of his affidavit (see [19(1)] above) to the following:

10. [158]

    I do not accept Ms Fraser’s submission at paragraph 25 of the PCS that there is no need to objectively ascertain the Plaintiffs’ intention because there is no dispute between the two of them or her assertion at paragraph 26 of the PCS that evidence of actual intention can even displace what was said to third parties at the relevant time if, by that, she means that subjective intention can displace what was said to the donnee or a third party at the relevant time.

11. [159]

    In this case, the Plaintiffs deny that they intended to make a gift of the Property to Jackie. Egon and Rita say they put the Property in Jackie’s name so that she would not have to pay stamp duty when she inherited the asset under the Plaintiffs’ Wills and also that they agreed to put it in Jackie’s name because Jackie said she wanted to avoid problems with Marilyn. The pleaded case relies on both the stamp duty rationale and the Marilyn rationale.

12. [160]

    In Martin v Martin, Dixon CJ, McTiernan, Fullagar and Windeyer JJ in their joint judgment said in assessing the findings of the trial judge (at 307):

13. [161]

    A further submission made by Ms Fraser was based on what had been said by Leeming JA in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 in respect of presumptions. His Honour was there dealing with presumptions in relation to Wills and I do not see those comments as having any relevance to the presumptions with which the Court is presently concerned.

14. [162]

    If the presumption of a resulting trust has not been rebutted, or the presumption of advancement has been rebutted by evidence of the actual intention of the party/parties who provided the funds for the purchase of the property in question, then the terms of the trust will conform to the expressed intentions of the settlor(s), where that intention is discernible from the evidence: see Woodley at [64(a)].

15. [163]

    If the presumption of a resulting trust has been rebutted (by either the actual intention of the transferor(s) or the operation of the “presumption of advancement”), then the equitable interest in the property will “remain at home with the title and the legal status quo is left undisturbed”: Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249 at [85] per McKerracher J; see also Nelson v Nelson at 547 per Deane and Gummow JJ; Brown v Brown at 589 and 591 per Gleeson CJ, 598-599 and 601 per Kirby P (as his Honour then was); Anderson v McPherson at [123]-[132] per Edelman J.

16. [164]

    The words that Egon used, on Ms Rendall’s evidence (see [21] above), have a degree of ambiguity and could be interpreted as, in effect:

    1. (1)

       amounting to a present gift of the funds with no retention of beneficial interest in the Property;

    2. (2)

       bestowing the Property to Jackie with a retention of a right to reside and utilise the Property whenever the Plaintiffs wanted;

    3. (3)

       bestowing the beneficial interest in the Property to Jackie subject to a life estate in the Plaintiffs; or

    4. (4)

       retaining the full beneficial interest in the Property but with an expectation that the Property would pass to Jackie on the demise of both Plaintiffs.

17. [165]

    It will be observed that the words “trust” or “in trust” are not recorded in the notes or in the conversations, nor are they asserted to have been used by the Plaintiffs. The word “gift” is not recorded in any of the notes either and nor does Jackie use that word in her letters to her father. Whilst the word “gift” is not used in the communications relied on by Jackie and set out at [20(1)] and [20(8)] above, the words to which she deposes are clearly indicative of a gift. If [164(4)] was what was intended, there was no need to purchase the Property in Jackie’s name because she was, pursuant to their 2012 Wills, the sole beneficiary of their estates.

18. [166]

    Accepting that the words used by Egon in the presence of Ms Rendall, Rita and Jackie are those set out at [147(4)] above, and that there is a degree of ambiguity about them, those words are not inconsistent with an intention to provide a gift to Jackie and do not rebut the presumption of advancement save that I think the reference to the Plaintiffs’ occupation of the Property, Jackie’s admission that she understood that the Property could be used by her parents whenever they wanted, her promise not to sell the Property whilst they were alive and her implicit acceptance that her parents had a claim to the Property (as referred to in Mr Rendall’s letter of 16 January 2019) must be given due recognition. Those words are consistent with what Egon told Ms Robinson on 25 May 2017; namely, that he was purchasing the Property for his daughter: see [15(12)] above.

19. [167]

    The onus of rebutting the presumption of advancement rests on the parents and they have not succeeded in doing so.

20. [168]

    I conclude, therefore, that the presumption of resulting trust is rebutted by the presumption of advancement.

21. [169]

    I should note that were I to accept Jackie’s evidence as reflecting, on the balance of probabilities, what actually occurred, the result would be the same. If the Plaintiffs, as at May 2017, wanted to prevent the Property from being an asset of theirs and one that would be included in their estates and hence available for consideration in any claim made by Marilyn (whether that was their own idea or that of Jackie), I am inclined to think that that would also lead to the conclusion that there was no resulting trust. Finally, acceptance that the words said by Egon and Rita to have been used by them, and set out in [8(1)]-[8(3)] above, were spoken, leads to the same conclusion that the Plaintiffs intended that the beneficial interest in the Property would pass to Jackie on their death.

The Life Estate

1. [170]

   The courts have recognised that a resulting trust need not necessarily relate to the entire interest in the property. In Napier, the High Court said (at 158-9):

2. [171]

   That the Plaintiffs had a common intention that they would reside at the Property whenever they wished is not, however, evidence of their intention to vest within themselves a life estate; there being a difference between a life estate and a mere personal right to reside on a property for life or other period. The distinction between a life estate and a mere personal right of residence was considered by Beach J (as his Honour then was) in Calderone v Perpetual Trustees Victoria Limited [2008] VSC 373; and see also Royal Melbourne Hospital v Equity Trustees Ltd (2007) 18 VR 469 at 514 per Bell AJA; see also Binetter v Dunkel (NSWSC unreported 28 May 1993); and see the observations of Bryson J in Hatzantonis v Lawrence [2003] NSWSC 914.

3. [172]

   However, given the fact that Jackie has pleaded in her alternative defence only what is, in effect, a life estate (see paragraph 22(a) of her Amended Defence), I do not need to determine whether the rights which the Plaintiffs retained are more appropriately viewed as a life estate or a right to reside.

4. [173]

   The issue of pleadings has a further significance. The plea of a life interest is that of Jackie in her defence. It has not been pleaded as an alternative “claim” by the Plaintiffs. No relief of any kind is sought by the Plaintiffs in their Statement of Claim in connection with the life estate. Thus, it is not open to the Plaintiffs to seek to propound a case, for example, that the Property should be sold or that the life estate should be sold or bought out by Jackie as they do through the PCS. Mr Harding opposed the tender of any evidence directed towards a new unpleaded case that was not before the Court, by which the Plaintiffs seek to establish the “value” of their life interest. I accept Mr Harding’s submissions that the “claims” to which that evidence is directed are not before the Court and accordingly no regard should be had to Exhibits O, P and Q, which were admitted on a provisional basis.

5. [174]

   A life estate gives the beneficiary of that estate limited rights with no power to jeopardise the interests of those with rights to the fee simple after the death of the “life”: see Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) at [3.130]. I think that a declaration to the effect that Jackie holds the Property on trust for her parents for their lifetime and then for herself absolutely, similar to that made in Schweitzer v Schweitzer [2010] VSC 543, is the appropriate remedy. I will provide the parties with an opportunity to consider the precise form of wording and I will also be willing to consider whether a new caveat reflecting the declaratory relief and protecting the Plaintiffs should be permitted.

Unconscionability

1. [175]

   The Plaintiffs’ unconscionability case is that (see T294.8-44, paragraph 5 of the POS and paragraphs 88-97 of the PCS) Jackie took advantage of the Plaintiffs to advance her own interests by:

   1. (1)

      alienating their affections for Marilyn;

   2. (2)

      forging the Gift Letter;

   3. (3)

      persuading them to purchase the Property in her name;

   4. (4)

      adding herself as a purchaser of the Burradoo Property without their knowledge or consent;

   5. (5)

      arranging for Egon to execute a power of attorney and enduring guardianship and accepting appointments as Egon’s attorney and guardian; and

   6. (6)

      taking unconscionable advantage of the Plaintiffs by “accepting the benefit of legal ownership knowing the basis on which it was conferred”.

2. [176]

   [175(1)], [175(2)], [175(3)] and [175(4)] above have not been established. [175(5)] is established but occurred in late 2018 cannot support the conclusion sought. Nor, in respect of [175(6)], has it been established that Jackie told her parents at the time of the purchase that she regarded them as the true owners of the Property. I accept that Jackie says that she later promised her father that she would not sell the Property, but that is not a promise relied on by the Plaintiffs. No special disadvantage or vulnerability on the part of the Plaintiffs was pleaded or particularised and the principles espoused in Bridgewater v Leahy (1988) 194 CLR 457 at 474, 477-9 per Gaudron, Gummow and Kirby JJ and at 470-1 per Gleeson CJ and Callinan J (in dissent) have no application to the present dispute.

Conclusion

1. [177]

   The Plaintiffs have been unsuccessful in establishing that Jackie holds the entire Property on trust for them, but I have found, as pleaded in Jackie’s alternative defence, that the Plaintiffs have a life interest in the Property and, to that extent, Jackie’s beneficial ownership of the Property is not absolute.

2. [178]

   The Plaintiffs should prepare a proposed form of orders reflecting the conclusions reached by the Court. If the parties are unable to agree on a proposed form of orders, then I will hear them on those matters. I will also hear the parties on the issue of costs. The matter will be listed at 10:00am on 19 October 2021 so that the orders can be made and, if needed, a date can be fixed for any argument as to costs.