Clayton v Clayton

1. [1]

   HIS HONOUR: The application before the Court is a family provision claim by Ryan James Clayton (the plaintiff) in respect of the estate of his mother the late Deborah May Camilleri (the deceased) who died on 13 March 2021 aged 67.

2. [2]

   Rebecca Jane Clayton (the defendant) is the plaintiff’s sister and the only other child of the deceased. Within the family the defendant is known, or at least sometimes referred to, as “Bec”: CB 142.

3. [3]

   The proceedings were commenced by summons filed on 10 February 2022 seeking a family provision order pursuant to s 59 Succession Act 2006 (NSW) (Succession Act) for the plaintiff’s maintenance, education and advancement in life out of the estate, or such notional estate of the deceased as may be designated as such.

4. [4]

   This case is in many respects very sad. Both parties have limited resources. Both have mental health issues to varying degrees. I do not know what, if any, attempts the parties have made or offers put to resolve the litigation. What I do know is that an early settlement conference ordered and held about a year ago failed to produce a mutually agreed outcome that might have provided a tolerable if not perfect solution for the parties. I must accordingly determine the case according to law.

5. [5]

   It is the very sort of case which exemplifies the wisdom of the policy lying behind the Practice Note No. SC EQ 7 which provides for the Court to give directions for the purpose of making information available at the earliest practicable date so that all parties may make realistic assessment of their respective cases to encourage the early resolution of the proceedings including by referring the matter to mediation at a suitable time without the significant incurring of costs and attrition on parties financially and personally that a contested family provision case often brings.

6. [6]

   I have determined that the plaintiff’s claim and the defendant’s cross-claim both be dismissed.

7. [7]

   Without intending any disrespect, it is convenient to refer to various of the deceased’s family by reference to their given or familiar family names as was done by the parties.

8. [8]

   Mr Simpson appeared for the plaintiff. Mr Brown appeared with Ms Coventry for the defendant. For convenience, I will refer to the submissions on behalf of the defendant as submissions by Mr Brown. However, it was evident that throughout the hearing Ms Coventry gave considerable assistance to Mr Brown (including by undertaking the cross-examination of Dr Bertucen) and her assistance to him should be properly acknowledged.

9. [9]

   The parties provided written submissions prior to the hearing and on the final day of the hearing in addition to their counsel making oral submissions.

10. [10]

    I will refer to the oral submissions by transcript page reference. For convenience, I will refer to the various written submission documents as follows: the plaintiff’s written opening submissions (POS); the defendant’s opening written submissions (DOS) and the defendant’s concluding written submissions (DCS).

Family details

1. [11]

   The deceased was born in Sydney in November 1953 (T 183.5-10) and is the daughter of Dorothy May Moodie (nee Butt) (Dorothy) and Francis Lynch (Francis).

2. [12]

   Dorothy had at least one sibling namely Kevin Butt (Kevin).

3. [13]

   Dorothy appears to have married twice or at least had several relationships. Firstly, with Francis. Subsequently, Dorothy appears to have had a relationship with or married Barrie Hector Moodie (Barrie).

4. [14]

   There was no particular evidence as to if and when Dorothy and Francis died, albeit that it appears Dorothy was still alive as at May 2003: CB 178-179. Barrie died on 26 July 2021: CB 335.

5. [15]

   The deceased married Ian James Clayton (Ian) in or about 1974. Ian was born in or about 1951 (CB 331) and died from bowel cancer in February 2022: CB 68.

6. [16]

   The deceased had two children from that marriage namely the defendant born in late July 1976 and the plaintiff born in early December 1977.

7. [17]

   The deceased divorced Ian as I will refer to below. Following his divorce from the deceased, Ian married Bronwyn Ferris in or about 1984 and has two children from that marriage namely Lauren now aged approximately 39 and Cameron now aged approximately 36: CB 331.

8. [18]

   In about 1985, the deceased met Ron Camilleri (Ron). The defendant states that the deceased married Ron in or about 1991: CB 127[12]. Whilst I do not particularly doubt the defendant’s evidence in that regard, I note that the details in the deceased’s death certificate (CB 115), for which the defendant was informant, only disclose that the deceased married once namely to Ian and does not make any disclosure of a marriage to Ron. Nonetheless, there is other material which is confirmatory that a marriage existed including the Family Court order describing the deceased and Ron as husband and wife (CB 172). It is not necessary for me to make a specific finding as to whether the deceased was married to Ron as he has been provided with a notice of claim and has not sought to make a claim on the estate.

9. [19]

   In or about May or June 2003, the deceased and Ron separated: CB 161[5].

10. [20]

    The deceased had various employment skills. Principally, she appears to have been a bookkeeper by profession: CB 166[34]. Post-death materials describe the deceased’s usual occupation as being receptionist/secretary: CB 115 (death certificate); CB 117 (grant of probate).

11. [21]

    The defendant describes the deceased as being very frugal with money: CB 166[35].

12. [22]

    In June 2018, the deceased was diagnosed with pancreatic cancer (CB 130[35], 165[32]) and from that time was cared for by the defendant initially at home: CB 130[35]. The cancer metastasised to her lung: CB 115.

13. [23]

    On or about 7 March 2021, the deceased was admitted to palliative care at Murwillumbah Hospital (CB 30[56]-[57]) until her passing shortly thereafter.

14. [24]

    The plaintiff has two children: Dylan born in 1996 and Cody born in 2000.

15. [25]

    From in or about 1981 until 1992, the plaintiff had little contact with his father: CB 68. Dr Emeleus (a psychiatrist who has treated the plaintiff) records that “[h]e attempted to reconnect with his father around age 30, which did not go well, resulting in another 12 years of estrangement”: Exhibit D3-7 Currumbin Clinic Documents at Page 3. However, Dr Bertucen records that the plaintiff “finally resumed regular contact with his father only in approximately 2018; however, this was tragically curtailed by his father’s death”: CB 68.

16. [26]

    It appears that from teenage years when the plaintiff had issues with alcohol and drugs his relationship with the defendant was not close – she described him as becoming “more abusive and hostile” as they grew older: CB 127[19]. This is in part confirmed in Dr Bertucen’s report, the plaintiff informed him that he “never had a great relationship” with the defendant: CB 68.

17. [27]

    Upon leaving secondary school, the defendant trained and became a hairdresser: CB 127[17].

18. [28]

    The defendant appears to have had few intimate partner relationships in her life. She indicates that in her late teens she was in a relationship “which was very toxic”: CB 128[20]. The only other relationship the defendant disclosed in the evidence is with Nicholas Parkes (Mr Parkes) in 2010 – the defendant having entered into a relationship with Mr Parkes for about 6 months: CB 164[21].

Will and estate

1. [29]

   The deceased made a number of Wills during her lifetime.

2. [30]

   On 24 January 2007, the deceased signed a Will (2007 Will) prepared by Piper Craig Henry Lawyers at Tweed Heads by which she appointed the plaintiff and defendant as executors: Exhibit D7 Page 42.

3. [31]

   The 2007 Will gave a gift of $25,000 to the defendant and the residue of the deceased’s estate was given to the plaintiff and the defendant as tenants-in-common in equal shares. The Will, nonetheless, directed that her trustees permit the defendant to reside in such dwelling house or strata title unit in which the deceased was residing at the date of her death as a principal place of residence and to have use of the fixtures, fittings and household chattels therein without payment of rent for a term of two years from the date of her death with all payments during the period of occupation in respect of the rates, levies, taxes, insurance, electricity, telephone and repairs (such repairs not being of a structural nature) to be borne by the defendant: Exhibit D7 Page 42.

4. [32]

   On 9 May 2017, the deceased signed a Will (2017 Will) by which she appointed the defendant and Lesley-Ann Watson as joint executrixes and gave the property at Rous River Way, Murwillumbah NSW 2484 (Murwillumbah property) subject to any mortgage and household contents to the defendant absolutely: cl 4, Exhibit D7 Page 40. The deceased gave the residue of her estate including any amounts sourced from a “MLC Personal Protection Portfolio” account (MLC account) to be held on trust for the plaintiff and the defendant as joint tenants in equal shares: cl 5, Exhibit D7 Page 40.

5. [33]

   On 10 July 2020, the deceased sent an email to Sean Peters at Peters Lawyers to the following effect:

6. [34]

   On 20 August 2020, the deceased executed a Will apparently drafted by Peters Lawyers (August 2020 Will) which had some similarities to her final Will.

7. [35]

   By the August 2020 Will, the deceased gave her interest in the Murwillumbah property free of any encumbrance and household contents to the defendant absolutely but provided that in the event that the defendant failed to survive her that the plaintiff would take the gift by way of substitution: cl 5, Exhibit D7 Page 37. The deceased directed that her executor and trustee (the defendant) hold her estate to sell and convert it into money including the deceased’s MLC account proceeds and to pay for all debts (including any mortgage over the Murwillumbah property) funeral and testamentary expenses and other fees, costs and expenses associated with the administration of her estate and to give the residue of her estate as to 10% to the plaintiff and the balance to the defendant: cl 6, Exhibit D7 Page 37.

8. [36]

   On 23 September 2020, the deceased attended upon Robert Parsons (the solicitor for the defendant) (Mr Parsons) providing him with a form of unexecuted Will (which had been prepared by Peters Lawyers at Leumeah: CB 367, 370-372. Mr Parsons made a number of handwritten notations on the document, relevantly including a notation at the end of the draft document as follows (at CB 372):

9. [37]

   On 24 September 2020, the deceased made her last Will (last Will), probate of which was granted to the defendant on 13 August 2021: CB 110[6], [7]; 117.

10. [38]

    Pursuant to the deceased’s last Will the defendant was appointed as executrix and, relevantly, the deceased directed that her estate be held on a trust for sale and conversion into money to enable payment of debts, funeral and testamentary and other expenses associated with her death and the administration of her estate and gave the proceeds of her MLC account as to 10% to the plaintiff and 90% to the defendant: cl 9, CB 102-103, 119-120. The deceased gave the residue of her estate including any inheritance that she might receive from her stepfather Barrie to the defendant: cl 9(c), CB 103, 120.

11. [39]

    On or about 14 September 2007, the deceased took out a life insurance policy with MLC Ltd (MLC). The MLC policy documents indicate that the life insurance policy was housed by MLC under a product name described as “MLC Personal Protection Portfolio”. The deceased was the policy owner. The type of life cover was described as “Life Cover Standard” (policy): Exhibit JP-2.

12. [40]

    The actual terms of the life cover policy are not in evidence. Mr Simpson sought to identify the terms by reference to a Product Disclosure Statement (PDS): T 192-193.

13. [41]

    The PDS indicates that the PDS distinguished between Personal Protection Portfolio (PPP) available outside super and life cover super available inside super through the MLC Super Fund. The description of the PPP (at page 8) describes a summary of the life cover as being “[t]o provide a lump sum payment if you die or you’re diagnosed with a terminal illness” and distinguishes between Life Cover Plus (the highest level of insurance) and Life Cover Standard (the standard level of insurance).

14. [42]

    Further, part of the PDS (page 13) describes various of the benefits, features and options of life cover insurance. There is reference to another part of the PDS which provides a summary of the terms and conditions for lump-sum insurances (page 54).

15. [43]

    On that page of the PDS, there is a heading in a middle column described “Life Cover Benefit” which states as follows:

16. [44]

    On 26 March 2019, the deceased signed a beneficiary nomination form nominating the defendant to receive 100% of the policy benefit (policy benefit): Exhibit JP-2.

17. [45]

    On 20 August 2020, the deceased signed a further beneficiary nomination form readjusting the allocation of policy benefit such that she nominated the defendant to receive 90% of the policy benefit and the plaintiff to receive 10% of the policy benefit. The 2020 Review Schedule relating to the policy indicates that premiums of $386.65 were paid in respect of the policy monthly. The policy involved a Stepped Premium which was inflation linked and included an additional policy fee: Exhibit JP-2.

18. [46]

    On 26 August 2020, MLC sent to the deceased an acknowledgement letter recording the deceased’s revised preferred beneficiary nomination: Exhibit JP-2.

19. [47]

    On 1 June 2021, the defendant’s solicitors emailed MLC providing a certified copy of the deceased’s Will. On the same day, Sara Morovic (a claims consultant at MLC) responded to the email indicating that the claim had been finalised by MLC and accepted effective as at the date of the deceased’s death (13 March 2021) and indicating that the benefit payable was the amount of $360,136. The email indicated each beneficiary would be required to complete or provide certified ID and bank account details in order to release the funds: Exhibit JP-2.

20. [48]

    On 13 July 2021, MLC sent to the defendant a claim payment letter confirming that the sum of $324,122.40 had been transferred into the defendant’s account to reflect the benefit payment: Exhibit JP-2.

21. [49]

    On 13 July 2021, the defendant’s solicitors sent an email to the plaintiff’s solicitors addressing a number of matters and relevantly stating as follows (at CB 99):

22. [50]

    There is no specific indication of what, if any, response there was received to that email.

23. [51]

    On 25 March 2022, MLC sent a letter to the plaintiff noting that a sum of $36,013.60 had been issued as a cheque to reflect the benefit payment to him. It is not entirely clear where the cheque was sent although the letter recorded an address for the plaintiff in Burleigh Street in Burleigh Town, Queensland: Exhibit JP-2. Nonetheless, the plaintiff in his affidavit affirmed on 8 February 2022 stated that the proceeds had been paid directly to the nominated beneficiaries being himself as to 10% and the defendant as to 90%: CB 31[62].

24. [52]

    The amount due on the mortgage over the Murwillumbah property as of the date of the deceased’s death (RAMS Home Loan) was $301,138.27: Exhibit JP-1. Proximate to the time of the hearing (14 March 2023), the defendant indicated that the mortgage amount was approximately $101,000: CB 334[8]. The defendant used proceeds from the amount paid to her from MLC (approximately $324,000) to pay down the mortgage on the Murwillumbah property.

25. [53]

    The precise amount of proceeds used to pay down the mortgage is unclear. The above figures suggest it was approximately $200,000 ($301,138.27 – $101,000). The joint schedule (Exhibit JP-1) refers to a figure of about $224,000. I will adopt that figure which has been agreed upon by the parties for the purposes of this judgment. The defendant’s updating affidavit discloses that she understands the effect of what she has done is to lend money to the estate to pay its liability and asserts that the funds used were her personal funds subject to any claim for notional estate: CB 334[9], [10].

26. [54]

    Pursuant to a pre-trial direction the parties prepared an agreed schedule of assets, liabilities, costs and expenses. The schedule was tendered and became Exhibit JP-1. The details are summarised as follows.

27. [55]

    As at the date of death:

28. [56]

    As at 13 March 2023:

29. [57]

    The estimated costs and expenses of real property that is or may be required to be sold is as follows:

30. [58]

    As at 15 March 2023, the Murwillumbah property has an appraised market rent between $680 and $720 per week: Elders Real Estate Appraisal at CB 107.

31. [59]

    Despite the direction for the preparation of an agreed schedule, Mr Simpson, without disputing the “figures”, sought to contend that the net value of the estate was other than as set out above.

32. [60]

    First, he contended that to the extent that the defendant claims that the estate is indebted to her for the sum of $224,000 (being the sum that she contributed to the mortgage from the proceeds she received from the policy benefit), it fails to take into account a benefit she has received from living at the property rent free for two years since the deceased’s death which benefit he estimates as being a sum of approximately $70,000, based on the above-mentioned appraisal: POS [32], [34]. Mr Brown disputed that: DCS [39].

33. [61]

    I do not think that it is appropriate to factor into the calculation of the net estate a sum of $70,000 in lost rental income. That is because subject to the family provision claim the defendant has an entitlement to live in the property. Further, if the property were to be rented the estate would be liable to pay tax on whatever rental income was received from renting the Murwillumbah property and, in any event, the defendant would incur a rental expense in having to live elsewhere.

34. [62]

    Secondly, Mr Simpson submitted that the proceeds of the policy benefit ought to added to the value of the estate in an undefined way as either estate or notional estate: POS [33]-[34], [60].

35. [63]

    I do not consider that that is an appropriate way of analysing the matter. Whilst it is the case that in the initial administrator’s affidavit the defendant included 90% of the proceeds of the policy benefit as being an asset of the estate (CB 111[10]), it is clear that the proceeds of the policy benefit were not paid to the defendant as the legal personal representative of the estate as such but rather to the plaintiff and the defendant respectively in their capacities as nominated beneficiaries. The proceeds of the policy benefit stand outside the estate subject to the notional estate claim.

36. [64]

    Thirdly, Mr Simpson analysed the net estate on the basis of the sale of the property and cost of the proceedings including making adjustments for the plaintiff’s costs: POS [35]-[36], [60]. Whilst some account clearly must be taken of the effect of costs in the proceedings it is far from clear to me that the analysis that Mr Simpson has performed gives a reliable figure for the net estate. In any event, the analysis proceeds on the basis that the net estate includes the proceeds of the policy benefit.

37. [65]

    The plaintiff’s solicitors are acting for him on a contingency basis such contingency being a condition of a successful outcome defined as settlement of the case, an award by a Court or a financial resolution of the case: CB 89[4]. The plaintiff’s solicitor, Nathan Job (Mr Job), indicates that his firm will only charge the plaintiff for the professional fees in the event of a successful outcome but he will be liable to pay all out-of-pocket expenses including charges, expenses, disbursements or payments to a third party incurred irrespective of the outcome: CB 89[5]. There are no uplift factors included in the calculation of the plaintiff’s costs nor is there any agreement that provides for such an uplift factor: CB 90[6]. As matters presently stand, having regard to an amount of $13,410.35 which the plaintiff has already paid by way of disbursements, as at 9 March 2023, there were no other identified disbursements: CB 89.

38. [66]

    The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST are as follows:

39. [67]

    The costs of the parties that have been paid out of the estate of the deceased or otherwise are as follows:

Some formal matters

1. [68]

   The application for the family provision order was filed within time (on 10 February 2022): Summons at CB 1.

2. [69]

   On 14 February 2023, Ron was served with a notice of claim by registered post: CB 323-326.

Issues

1. [70]

   The defendant filed a cross-claim on 20 May 2022 seeking a declaration that the Murwillumbah property was held by her as executrix of the deceased’s estate on trust for the defendant’s benefit (personally) absolutely: CB 11.

2. [71]

   It is well established that a person may not be, at the same time, sole trustee and sole beneficiary of a trust over property: Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639 at 648 per Mason P.

3. [72]

   Notwithstanding that basal principle, if the Court ultimately decided in favour of the cross-claimant’s trust claim, appropriate relief could be fashioned to give effect to the finding that the cross-claimant was beneficially entitled to the Murwillumbah property. That issue has not arisen, however, as I have determined that the cross-claim be dismissed.

4. [73]

   The trust claim was pleaded to the following effect (CB 11-12):

   1. (1)

      In or about 2003, the deceased orally represented to the defendant that in the event that the defendant paid all her income to the deceased and they shared their expenses the deceased would leave to the defendant all her real property on her death (Representation);

   2. (2)

      in reliance upon the agreement the defendant paid to the deceased effectively all of her income until the deceased’s death which income the deceased used to pay her mortgage and other liabilities;

   3. (3)

      in about 2003, the deceased orally represented to the defendant that if she paid the sum of $25,000 being the inheritance the defendant received from the estate of her great-uncle Kevin the deceased would leave her real estate to the defendant upon her death (Continued Representation);

   4. (4)

      the defendant paid the $25,000 inheritance to the deceased’s Westpac mortgage account;

   5. (5)

      from 2003 until the deceased’s death, the deceased and the defendant equally shared all their expenses including mortgage repayments on each of the properties owned by the deceased up to the time of her death and the defendant continued to grant the deceased free access to all of the defendant’s bank accounts which money the deceased used as her own;

   6. (6)

      in reliance upon the representations from about 2010 to 2015 the defendant assisted the deceased to substantially renovate the Campbelltown villa (see below) and the defendant shared with the deceased the costs of such work and provided personal exertions in carrying out such works; and

   7. (7)

      in 2016, defendant provided “equal input” into the layout, design and decor of the Murwillumbah property which was built.

5. [74]

   The defendant, apart from the claim of a trust arising by virtue of an estoppel, puts the claim alternatively on the basis of a form of common intention constructive trust that from 2003 they would live together and buy property, share expenses and that upon the deceased’s death the defendant would receive the whole of the deceased’s real property and estate: CB 12-13.

6. [75]

   The defendant claims that she has suffered detriment in reliance on the representations in that she gave her income to the deceased for 18 years, gave the deceased the sum of $25,000 in 2003 and allowed the deceased unfettered access and control of the defendant’s bank accounts: CB 13[17].

7. [76]

   The defendant’s claim of a trust was relevantly disputed it being asserted that the defendant did not suffer any detriment as she was doing no more than contributing to her costs of accommodation and living expenses in the home of the deceased, which costs and expenses she would have incurred in any event: CB 17[3].

8. [77]

   The plaintiff relevantly did not admit the allegations regarding the Representation, the Continued Representation and reliance, and denied the defendant’s allegations of detriment: CB 17.

9. [78]

   More particularly, the plaintiff asserts that the deceased did in fact leave the Murwillumbah property to the defendant in her last Will and that, accordingly, there is no equitable or other basis for the Court to intervene by imposing a constructive trust or any other remedial measure and that the property forms part of the deceased’s estate and is subject to the plaintiff’s family provision claim: CB 18.

10. [79]

    I address specifically my findings regarding the trust claim below.

11. [80]

    Pursuant to pre-trial directions, the parties provided an agreed list of issues in dispute as follows:

    1. (1)

       Whether, as claimed in the cross-claim, the Murwillumbah property is held by the defendant as executrix of the estate of the deceased on trust for the defendant absolutely?

    2. (2)

       If the Court determines that the Murwillumbah property is not part of the Estate, whether, having regard to the matters identified in the Succession Act, any part of the property can be designated notional estate?

    3. (3)

       Alternatively, what is the amount and characterisation of payments made by the defendant to the deceased’s mortgage?

    4. (4)

       Whether the proceeds of the MLC policy held by the deceased are part of the actual or notional estate of the deceased?

    5. (5)

       Whether (as contended by the plaintiff) there should be any offsetting for rental charges in respect of the defendant’s occupation of the Murwillumbah property from the date of death or whether those charges should otherwise be taken into account?

    6. (6)

       Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the deceased for the plaintiff in the Will?

    7. (7)

       If not, should the Court make such an order for provision out of the deceased’s estate and/ or notional estate having regard to the matters identified in the Succession Act?

Real issues

1. [81]

   Without being exhaustive, it is said that the objectives of cross-examination may include:

   1. (1)

      to elicit facts favourable to the cross-examiner’s case;

   2. (2)

      to confirm facts given in chief;

   3. (3)

      to show that the witness is not credible which may include examination, prior inconsistent statements, bias, corruption and lack of veracity;

   4. (4)

      to put the cross-examiner’s case to the witness so that it may be known and commented upon; and

   5. (5)

      to force the witness to qualify a generalisation: Halsbury’s Laws of Australia – Evidence, Cross-examiner (online) at [195-7890].

2. [82]

   Cross-examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side’s evidence in order to persuade the Court to accept or reject evidence. It enables the Court to have a full opportunity to evaluate the parties’ opposing cases: Gooley v Gooley [2021] NSWSC 56 (Gooley) at [1152] per Sackar J.

3. [83]

   Clearly, questions of onus of proof will impact upon decisions for cross-examination.

4. [84]

   However, the decision to cross-examine is not dictated solely by questions of onus of proof. It is also impacted by questions of fairness to witnesses as established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67 (Browne v Dunn).

5. [85]

   In Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, Hunt J stated at 16C-E as follows:

6. [86]

   In West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 (West v Mead), Campbell J (as his Honour then was) noted (in the context of the obligation of procedural fairness) that the circumstances in which the rule in Browne v Dunn will require matters to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: at [98].

7. [87]

   Further, his Honour noted that even where there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: at [99].

8. [88]

   For the purposes of the application of the rule in Browne v Dunne the case that a party is called upon to meet may be made evident by written opening submissions: e.g. Meissner v Lindsay [2016] NSWSC 790 at [80] per Robb J.

9. [89]

   The consequences of a failure to cross-examine may vary in any given case depending on the relevant circumstances: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [366]-[367] per Hallen J; Gooley at [1147]-[1158]. A trial judge is not required to accept evidence merely because it is unchallenged. The fact that evidence is unchallenged may provide a cogent reason for its acceptance. However, ultimately, it depends upon the nature of the evidence including, for example, whether the unchallenged evidence is ex facie illogical or inherently inconsistent: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293 at [130] per Beazley JA (as her Excellency then was), with whom Basten (as his Honour then was) and Macfarlan JJA agreed, citing Hull v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing).

10. [90]

    Nonetheless, according to the ordinary conventions of the adversarial system, when a party does not cross-examine on evidence relating to a significant issue in a case, that party is taken to concede the point: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 (Goodrich) at [117] per Ipp JA (Mason P at [1] and Tobias JA at [126] agreeing).

11. [91]

    On the other hand, it has been said that a cross-examiner’s job is not to make out a party’s case for her (or him). If the evidence is insufficient, it may be perfectly sensible for a cross-examiner not to provide an opportunity for the party to overcome the deficiencies: Evans v Levy [2011] NSWCA 125 (Evans v Levy) at [41]-[43] per Young JA (Campbell JA and Sackville AJA agreeing) .

12. [92]

    Thus, where there is an absence of evidence from the party on a particular issue, the Court is entitled to take the view that if a witness could have given the Court appropriate details and evidence, but has not done so even though legally represented, then the Court can assume that the person involved is not in a position to go any further than she (or he) did: Evans v Levy at [43] citing Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 per Handley JA.

13. [93]

    Parties to civil proceedings are under a duty to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), (3) Civil Procedure Act 2005 (NSW) (CPA).

14. [94]

    The effect of the overriding purpose upon forensic decisions made regarding the calling of evidence, reading of affidavits and cross-examination arises from time to time in litigation.

15. [95]

    Such a principle has been in operation in this Court since at least 1 March 2000, at least five years prior to the 2005 civil procedure reforms: Supreme Court Rules (Amendment No. 337) 1999 (NSW) at [8], [9] (see e.g. Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 309).

16. [96]

    Legal representatives are under a related duty not to put their client in breach of that obligation: s 56(4) CPA. The existence of this duty is not remote from the operation of the principle in Browne v Dunn and might well in some cases qualify the principle in Browne v Dunn. I consider that there will be times in which the Court can properly expect counsel to cross-examine on the real issues in the proceedings so as to assist the Court to further and achieve the overriding purpose.

17. [97]

    Further, the effect of the power of the Court to regulate cross-examination in proceedings (pursuant to s 62(1), (2), (3)(a), 4(a) and (5) CPA) might in some cases qualify the principle in Browne v Dunn, subject not to detracting from the principle that each party is entitled to a fair hearing: s 62(4) CPA.

18. [98]

    The plaintiff in a family provision claim has the onus of establishing the threshold jurisdictional issues in relation to eligibility: ss 57 and 59(1)(a).

19. [99]

    Eligibility “jurisdictional” questions are different from the question which arises under s 59(1)(c): Page v Page [2017] NSWCA 141 at [38]-[41] per Leeming JA.

20. [100]

    A decision under s 59(1)(c) Succession Act as to whether adequate provision has been made for the proper maintenance, education and advancement in life of an eligible applicant is an evaluative decision in the sense that the Court must undertake an evaluative exercise in balancing all of the principles and factual considerations: e.g. Chisak v Presot [2022] NSWCA 100 at [61] per White JA (Macfarlan and Gleeson JJA agreeing); Sun v Chapman [2022] NSWCA 132 at [5]-[13] per Leeming JA and at [115] per White JA; Cooper v Atkin [2020] NSWSC 828 at [203] per Hallen J.

21. [101]

    The decision under s 59(1)(c) is one to which various pieces of evidence from both parties are apt to contribute and which need to be assessed and evaluated.

22. [102]

    Whilst it is in one sense correct to say that decisions regarding eligibility and decisions regarding adequacy of provision both involve an onus of proof in the sense of the plaintiff establishing to the Court’s satisfaction that affirmative answers ought be given, the decision under s 59(1)(c) involves an assessment of factors to which each of the parties and their legal representatives will need to make important decisions in respect of an evidentiary burden, regarding what evidence is adduced, objected to and tested.

23. [103]

    In contradistinction to an applicant, beneficiaries (who are not making a claim) are entitled to elect not to make disclosure about their financial resources and needs. A beneficiary may remain silent about her financial resources and needs, and simply look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to her as the sole beneficiary, regardless of her financial position or needs: Jodell v Woods [2017] NSWSC 143 at [29]-[30] per Hallen J citing Sammut v Kleemann [2012] NSWSC 1030 at [137]-[140] per Hallen J.

24. [104]

    However, s 61(1) Succession Act provides that a beneficiary’s interests cannot be disregarded in determining an application for a family provision order.

25. [105]

    Family provision proceedings quintessentially involve important choices for counsel in cross-examining. It is a matter for counsel using their professional expertise to assess what matters need to be put before the Court and in what detail: Blackett v Darcy [2005] NSWSC 65 at [53] per Young CJ in Eq (as his Honour then was).

26. [106]

    It is very awkward for a judge in family provision proceedings when there is a significant issue which is not tested in cross-examination: Nicholls v Hall [2006] NSWSC 1377 at [19] per Young CJ in Eq (as his Honour then was).

27. [107]

    In many, if not most, family provision applications questions of financial needs and competition for their satisfaction out of the estate are prominent because of the limited scale of the resources available: Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189 (Lloyd-Williams v Mayfield) at [29]-[31] per Bryson JA (Giles JA and Stein AJA agreeing). Exceptional cases exist where the estate or potential notional estate is so large that the beneficiary who might bear the burden of any order for provision does not put financial circumstances in issue or even if they are put in issue the reality is that an order will not have any significant adverse effect on the wellbeing of such beneficiary: Lloyd-Williams v Mayfield at [31].

28. [108]

    However, exceptional cases aside, in most family provision cases there is a significant issue as part of the Court’s overall evaluative assessment under s 59(1)(c) for the Court to be enabled to properly understand the impact that a shifting of property resources away from a beneficiary in favour of an applicant will have on each of those respective parties. I consider that in most cases the Court ought to be able to properly expect cross-examining counsel to address that issue so as to enable the Court to have a full opportunity to evaluate the parties’ opposing cases (Gooley at [1152]) and to assist the Court to further and achieve the overriding purpose of the litigation.

29. [109]

    In the written opening submissions, there was a particular emphasis on the Murwillumbah property. Indeed, Mr Simpson stated that “the focus of the dispute seems to be whether the Murwillumbah property should be sold”: POS [7].

30. [110]

    The defendant, in her first substantive affidavit in chief (4 April 2022), provided some detail regarding her sharing of expenses with the deceased and contributions to the deceased’s property: CB 129[29], 133[62]. However, she did not provide any significant detail regarding her claim to retain the deceased’s estate other than stating that she would like to be free of debt and able to have a roof over her head. She indicated that, with the exception of receiving an inheritance, there is no possibility of her ever owning her own home and that she would be renting for the rest of her life and be dependent on rent assistance and other subsidies: CB 135[77], [80].

31. [111]

    However, in July 2022, the defendant provided more detail regarding her financial arrangements with the deceased in respect of living expenses and contributions to the real property or homes in which the deceased and the defendant lived: CB 161-166.

32. [112]

    Finally, in her updating affidavit, the defendant indicated that she would need the $70,000 sum (in her projected savings) to draw on to buy new items or maybe a newer car in the future indicating that it was her only nest egg: CB 336[23]. The defendant stated that she has no intention to otherwise sell her home (in context, a reference to the Murwillumbah property) stating that it is “a wonderful place where I can remember my mum and all the happy times we had together”: CB 335[16]. She further indicated that it was her desire to receive the (Murwillumbah) property and continue the payment of the balance of the mortgage: CB 335[10].

33. [113]

    The defendant asserted that she would never be able to work and had no ability to ever raise a small capital fund, which evidence was received but limited under s 136 Evidence Act 1995 (NSW) (Evidence Act) to her belief regarding those matters: CB 335[18], [20].

34. [114]

    In his written opening, Mr Simpson submitted that the Murwillumbah property should be sold intimating that there was no good reason why the defendant required such accommodation. He stated (in the POS):

35. [115]

    Mr Simpson submitted that his proposal for provision for the plaintiff would not leave the defendant without accommodation. Rather, he submitted that the defendant would have the means to purchase accommodation it just would not be the 3-to-4-bedroom house which she shared with her mother but could be a two-bedroom townhouse or apartment: T 205.

36. [116]

    After the evidence was complete and during the course of submissions, I noted that Mr Simpson did not cross-examine the defendant on her claim to retain her accommodation.

37. [117]

    Mr Simpson submitted (T 205–206) that:

    1. (1)

       the defendant had not effectively set up any competing case as there was no evidence to the effect that she had a medical condition which would prevent her from moving out of the house or whether she had material stored in other rooms or whether she needed to stay in a single-storey house or that the house could not be effectively sold because of certain matters;

    2. (2)

       as no such matters were pleaded or put in evidence by the defendant accordingly, he had no need or obligation to cross-examine to test the effect of any competing claim of the defendant to retain the benefits given to her;

    3. (3)

       that to expect him to cross-examine the defendant would in substance be reversing the onus requiring him to prove that she did not have a need to stay in the house;

    4. (4)

       in a family provision claim he simply bore the onus of proving his client’s (the plaintiff’s) need and adequacy of provision and that if the defendant wished to set up a case of competing needs, she bore the onus of that; and

    5. (5)

       to require him to challenge the defendant’s case of a competing need to retain the property that is left to her would place an unfair burden on the cross-examiner.

38. [118]

    Whilst it is true that the defendant did not in pre-hearing affidavits go into detail regarding the characteristics of the Murwillumbah property and discuss potential alternatives to the Murwillumbah property and why they might be satisfactory or not satisfactory, the forensic framework of the case at the commencement of the hearing very clearly set up as an issue the defendant’s claim to retain the entirety of the Murwillumbah property without it being sold.

39. [119]

    Fundamentally, the defendant’s case against sale of the Murwillumbah property was set up by the cross-claim that sought a declaration that the entirety of the property was held on trust for the defendant.

40. [120]

    Further, the defendant’s case against sale of the Murwillumbah property was reinforced by her evidence that she had no intention to sell the Murwillumbah property and that it was her desire to receive the property and continue to pay the balance of the mortgage and that it was a wonderful place where she could live. I understand that a corollary of her position is that other accommodation was not sought nor a desirable alternative.

41. [121]

    I consider that Mr Simpson’s opening submission that “the focus of the dispute seems to be whether the Murwillumbah property should be sold” (POS [7]) struck closely to the heart of a critical issue in the matter, in the sense that an award of the level of provision which the plaintiff is seeking ($300,000 or more) would inevitably require sale of the Murwillumbah property.

42. [122]

    The defendant’s opening submissions that the Court should make the declaration of trust sought regarding the Murwillumbah property or in the alternative should not disturb the testamentary freedom enjoyed by the deceased given the contributions of the defendant reinforced the forensic tension regarding the issue as to whether the Murwillumbah property was in some way quarantined from being available to meet a claim for provision or otherwise able to be sold: see e.g. DOS [66].

43. [123]

    It is evident that the estate had extremely limited cash funds ($13,000) and the defendant did not have available to her other funds which might provide a source of payment to the plaintiff without sale of the Murwillumbah property.

44. [124]

    First, she has a sum of $100,000 which had been placed in the defendant’s solicitor’s trust account and earmarked in a practical sense for paying legal costs. However, it would be wrong to say that that fund was readily available to her without claims on it. If an order was made for provision to the extent that she used any part of that fund to discharge an order for provision she would be without those funds to pay for legal costs.

45. [125]

    Secondly, the defendant has paid down a sum of $224,000 on the mortgage of the Murwillumbah property. That money is gone other than any possibility that it might be redrawn. There was no evidence about terms or conditions that might apply to permit the defendant to redraw on the mortgage. Even if the defendant were able to redraw the mortgage the extent of financial pressure that might place on her to continue to meet mortgage repayments was not explored.

46. [126]

    In the above circumstances, it was self-evidently important to assist the Court to work out the comparative financial impacts upon each of the plaintiff and the defendant of any order for provision to understand the potential impacts of sale of the Murwillumbah property.

47. [127]

    On the third (and final) day of the hearing, Mr Simpson sought to read an affidavit of his instructing solicitor, Mr Job, affirmed 26 March 2023 (the day before the hearing commenced) annexing a number of online searches for properties being one- and two-bedroom units and a detached duplex in the Murwillumbah and Tweed Heads region, such searches conducted through the website www.realestate.com.au. The affidavit annexed searches of four properties being relevantly a two-bedroom one-bathroom unit at Tweed Heads for $520,000, a one-bedroom one-bathroom apartment with parking at Tweed Heads for $450,000, a two-bedroom one-bathroom unit at Tweed Heads West with a price guide of $450,000-$470,000 with parking and a two-bedroom one-bathroom duplex semidetached property at Murwillumbah with garage for $500,000.

48. [128]

    Mr Brown objected to the reading of the affidavit: T 165. Mr Simpson indicated that the evidence was relevant as to what property was available to either the defendant or the plaintiff (T 166.34, 167.30), not merely updating evidence in relation to the plaintiff’s accommodation.

49. [129]

    Mr Simpson, following further discussion about the admissibility of the affidavit, specifically indicated that it was relevant as to the defendant’s position noting that it had always been the plaintiff’s case that the house will inevitably need to be sold and that if the Court were to come to a conclusion that the provision of the amount sought by the plaintiff should be awarded that inevitably the defendant would have to find other accommodation but she had not put on any evidence as to why she could not live elsewhere or what might impede that or why she needed [to live in] the particular house she is in: T 168.1-10.

50. [130]

    I admitted the affidavit noting that in any event the defendant would be able to be cross-examined on the material: T 168.22-23.

51. [131]

    There was not time for the defendant to swear any responding affidavit or otherwise respond to that material. If Mr Simpson wished to put a submission that the Murwillumbah property should be sold as the defendant has, as an option, the availability of other accommodation such as units referred to in Mr Job’s affidavit, as a matter of fairness such material needed to be put to the defendant.

52. [132]

    Mr Simpson ultimately submitted that instead of living in a $850,000 house the defendant could live in a $600,000 or $550,000 townhouse as a single person and there is no reason why that would not be adequate for her: T 207.

53. [133]

    I infer there were proper forensic reasons for Mr Simpson not cross-examining the defendant in relation to conversations said to support the Representation and Continuing Representation. That is because, as Mr Simpson correctly submitted, there was no evidence from the defendant regarding discussions with the deceased in 2003 in support of the Representation and Continuing Representation.

54. [134]

    However, the forensic decision not to challenge the defendant (in relation to the family provision claim) on her claim to retain the Murwillumbah property arising from contributions she had made to it and her having no intention to otherwise sell her home and a desire to stay there as it is “a wonderful place” and would evoke happy memories for her (CB 335[16]) was more problematic.

55. [135]

    The Court would have been assisted by further evidence understanding the impact upon the defendant of the sale of the Murwillumbah property including testing what other accommodation options might appropriately be available to her.

Evidence

1. [136]

   On the hearing, each of the plaintiff and defendant read and relied upon substantive affidavits only from themselves.

2. [137]

   There were formal affidavits read on each side. The plaintiff read an affidavit (as to costs) of his solicitor, Joshua Allan. The defendant read affidavits (as to service of notice of claims and death of Ian) of Mr Parsons, solicitor, and an affidavit (as to costs) of Mr Job. None of those solicitors were required for cross-examination.

3. [138]

   The plaintiff in his updating affidavit provided a report from a psychiatrist, Dr Bertucen. Although Dr Bertucen did not swear an affidavit he was required for cross-examination in the proceedings and was cross-examined via audio visual facility on the third day of the hearing.

4. [139]

   Each party, apart from affidavit evidence, adduced documentary material. The documentary material included bank account records, medical documents in the form of reports from a psychologist and psychiatrists and documents from a mental health clinic. There were other materials including account statements from a mortgage lender (RAMS) and materials subpoenaed from an employer of the plaintiff (Ausdrill).

5. [140]

   During the hearing, Mr Brown and those assisting him played on a computer three thumb drives of four videos which were shown to the plaintiff during cross-examination via the footage being displayed on a screen set up on the bar table directed to the witness box and viewable by the plaintiff and myself. The thumb drives, with the exception of the video from the final footage being tendered only from a timing of 20 minutes and 54 seconds, became Exhibit D4: T 124.

6. [141]

   On the morning of the final day of the hearing, the parties tendered a bundle of documents from a subpoena issued to MLC including the form of PDS. Those documents become Exhibit JP-2: T 145.

7. [142]

   On or about 14 March 2023, the defendant’s solicitors served on the plaintiff’s solicitors a form of notice to produce in relation to various matters bearing upon his financial circumstances including account statements in relation to banking arrangements and credit cards, tax returns and assessments, financial documents in relation to companies, registration papers for motor vehicles, superannuation accounts, cost agreements, insurance policies (including BUPA health insurance), rental agreements and employment records: Exhibit D5.

8. [143]

   Late in the evening on 14 March 2023, Mr Job responded to Mr Parsons regarding the notice to produce asserting that the return date for the notice to produce (seven days) was “absurdly short” but, notwithstanding that, the plaintiff would endeavour to produce what he could prior to the hearing: Exhibit P1.

9. [144]

   Subsequently, on 21 March 2023, Mr Job emailed a letter to the defendant’s solicitors referring to the notice to produce confirming that there had been production to the Court of “those documents which our client was able to provide in the absurdly short timeframe provided, and further noting that our client was again admitted to the Currumbin clinic on Monday, 20 March 2023”. The letter continued stating: “[w]e are instructed our client is not expected to be discharged from Currumbin Clinic until Saturday, 25 March 2023 and accordingly we do not expect our client to be in a position to provide any further documents prior to the commencement of the hearing on 27 March 2023”: Exhibit P1.

10. [145]

    Materials from the production were collated by the defendants and tendered in the proceedings: Exhibit D3-7 (Notice to Produce documents Tab). The entirety of the documents produced were (T 87):

    1. (1)

       a statement for the Westpac account ending 708 – 21 February 2023 (closing balance $80,000);

    2. (2)

       statements for the Westpac account ending 955 – 28 February 2022 to 28 February 2023 (closing balance $8,283.04);

    3. (3)

       statements for the Westpac account ending 338 – 30 November 2022 to 31 January 2023 (closing balance $1,792.42) coupled with an additional printout up to 15 March 2023 disclosing further transactions;

    4. (4)

       7 tax returns for the financial years ended 30 June 2014 to 30 June 2021 (with the exception of the financial year ended 30 June 2017);

    5. (5)

       6 company financial statements for Coastal Abundance Pty Ltd (Coastal Abundance) for the financial years ended 30 June 2015 to 30 June 2021 (with the exception of the financial year ended 30 June 2017);

    6. (6)

       7 company tax returns for Coastal Abundance for the financial years ended 30 June 2014 to 30 June 2021 (with the exception of the financial year ended 30 June 2017); and

    7. (7)

       costs agreements with Somerville Laundry Lomax dated 21 September 2021 and 17 November 2022 and counsel’s costs agreement.

11. [146]

    The plaintiff failed to produce any documents in relation to:

    1. (1)

       his personal National Australia Bank (NAB) accounts: T 87, 112;

    2. (2)

       bank statements for Coastal Abundance: T 35, 87;

    3. (3)

       credit card statements: T 87, 88, 124;

    4. (4)

       registration papers for motor vehicles: T 87, 90;

    5. (5)

       superannuation accounts for two years prior to the notice: T 42, 87;

    6. (6)

       insurance policies including BUPA Health insurance from 1 January 2021 to the date of the notice: T 87, 88 cf T 35);

    7. (7)

       any rental agreement in respect of the unit at Peacock Place Burleigh Waters: T 87, 90;

    8. (8)

       employment records including materials regarding his employment with Ausdrill: T 87.

12. [147]

    The plaintiff, when pressed in cross-examination regarding production under the notice to produce, was not sure if he had seen the notice to produce. He asserted that “I just had a couple of things on an email that said I had to produce bank accounts, registration papers” (T 91) and “[t]here was a couple of little things on my email that said you've got to have a bank account, business, personal and any bank accounts, business or personal and rego papers, that's all I can think of that was on there”: T 92.

13. [148]

    The email from Ms Anderson to the plaintiff dated 15 March 2023 attached the notice to produce (as well as an authority to MLC and various subpoenas). In relation to the notice to produce the email said “please review the documents sought and provide us with what you can”: Exhibit D5. There was no qualification in relation to the email suggesting that only a “couple of little things” as suggested by the plaintiff were being sought.

14. [149]

    The plaintiff indicated “I’m guessing so” in response to a question that the only reason why he knew he had to produce bank statements was because he had opened the notice to produce attached to the email: T 92.

15. [150]

    In relation to whether his memory was refreshed by the fact that to know what to produce he had to open the email he said (at T 93):

16. [151]

    Evidence regarding the plaintiff’s superannuation was not entirely clear. He asserted that he sent some superannuation documents to his lawyers. However, it appeared that there was another superannuation account that he has through Ausdrill: T 89-90. In either case, no superannuation statements from any account held by the plaintiff were produced pursuant to the notice to produce (T 87) nor tendered in evidence on his behalf.

17. [152]

    In assessing the evidence in the proceedings, I have approached and weighed the evidence having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents and the inherent probabilities of life as they bear upon the events: see e.g. In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 at [77] per Williams J at citing, inter alia, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 129 per Gleeson CJ, Gummow and Kirby JJ.

18. [153]

    Ultimately, there was quite a large body of documentary material tendered in the proceedings. I have had particular regard to contemporaneous documentary material including title searches and certificates for the purposes of establishing a number of the facts in the matter.

19. [154]

    The background facts that I set out should be regarded as findings of the Court unless qualified or otherwise indicated.

20. [155]

    However, in dealing with certain of the contested issues I have separately addressed those issues below when addressing issues regarding the credit and reliability of the parties and various witnesses.

Competence and credit issues

1. [156]

   A person is presumed to be competent to give evidence unless the contrary is shown: s 12 Evidence Act; R v Brooks (1998) 44 NSWLR 121.

2. [157]

   A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability), the person does not have the capacity:

   1. (1)

      to understand a question about the fact; or

   2. (2)

      to give an answer that can be understood to a question about the fact; and

   3. (3)

      that incapacity cannot be overcome: s 13 Evidence Act.

3. [158]

   A lack of response per se or a nonresponsive answer to a question does not necessarily demonstrate a lack of understanding of the question nor inability to give up a comprehensible answer: The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 (Ayoub) at [17]-[20] per Stevenson J.

4. [159]

   The law distinguishes between competency to give sworn evidence or unsworn evidence and the provisions of s 13 Evidence Act address that distinction.

5. [160]

   No party bears the onus of proving competence or lack of competence: R v Medich (No 40) [2018] NSWSC 374 (Medich) at [33] per Bellew J.

6. [161]

   The issue is one for determination by the Court on the balance of probabilities: Medich at [33] and Ayoub at [24] both citing RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221 at [11] per Harrison J (McClellan CJ at CL and Howie J agreeing).

7. [162]

   The fact that a witness suffers from a challenging mental condition may in any given circumstances be relevant or highly relevant to assessing competency. However, the mere fact that a witness has a mental health condition for example bipolar affective disorder or major depressive disorder does not necessarily preclude a finding of competency: Ayoub at [33]-[35].

8. [163]

   Further, the fact that a person with any of those diagnoses might find answering questions in Court to be stressful or challenging does not per se preclude a finding of competency: Ayoub at [55].

9. [164]

   Competency to give evidence may need to be monitored during the hearing and at times dealt with on a question-by-question basis: Ayoub at [55].

10. [165]

    A person under legal incapacity includes a person who is incapable of managing his or her affairs: r 7.13 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The expression “person under legal incapacity” is defined in s 3 CPA and means any person who is under a legal incapacity in relation to the conduct of legal proceedings.

11. [166]

    A person under a legal incapacity may not commence or carry-on proceedings except by his or her tutor: r 7.14(1) UCPR.

12. [167]

    An application for appointment of a tutor may be made by the Court of its own motion: r 7.18(6) UCPR. Where the Court forms the view that a tutor is required, the Court may stay the proceedings unless and until a tutor has been appointed.

13. [168]

    The principles regarding the test of whether a person is capable of managing his or her own affairs have been set out by Sackar J in Bowering v Bowering [2014] NSWSC 1107 (Bowering).

14. [169]

    It has been said that the Court in addressing questions of capacity to instruct has an important role to play in protecting the interests of a clearly vulnerable person: Bowering at [59]. That role is even more important where the application to appoint a tutor is opposed even by the party’s own legal representatives.

15. [170]

    In Bowering, having regard to the circumstances of that case and the second defendant’s chronic psychiatric condition, Sackar J determined that he was vulnerable and potentially agreeable and/or apathetic and was concerned to ensure that decisions made by him in relation to the proceedings were being properly made. In the circumstances of that case, his Honour ordered that a tutor be appointed for the second defendant.

16. [171]

    The plaintiff was called to give evidence on the afternoon on the first day of the hearing. The cross-examination proceeded and during the course of the cross-examination, at close to 2:30 PM that afternoon, the plaintiff began to weep when questioned regarding discussions with his late mother.

17. [172]

    Mr Brown, the cross-examiner, indicated to the plaintiff that if he would like to take a moment he could pause. I adjourned briefly to enable the plaintiff to have some time to see if he could calm himself.

18. [173]

    The matter resumed. The cross-examination proceeded. Notwithstanding that, the plaintiff still at times wept. I further permitted the plaintiff to leave the witness box and go outside the Court and then addressed counsel. With the consent of Mr Brown, I requested Mr Simpson to go outside to speak with the plaintiff to make a forensic decision as to whether he considered that the plaintiff was able to return to the witness box and for Mr Simpson to report back to the Court. The Court adjourned for a further time. Upon the resumption, at close to 3:15 PM, Mr Simpson requested an adjournment until the following morning which adjournment was not opposed. I asked both counsel to consider a number of issues and, in particular, the competence of the plaintiff to continue to give evidence particularly in light of the medical evidence to which I refer below.

19. [174]

    Ultimately, overnight the plaintiff was able to speak by telephone to Dr Emeleus. Dr Emeleus conducted an urgent clinical review and prepared a short-written report that evening, which report was the following morning (the second day of the hearing) tendered by Mr Simpson and marked as Exhibit A1.

20. [175]

    In substance, the report indicated that in consultation with Dr Emeleus the plaintiff and she were both of the view that it was in the best interests of his mental health to proceed to give evidence “because leaving this matter unresolved is causing him significant and ongoing distress”. Dr Emeleus, in the report, requested that consideration be given to allowing the plaintiff regular planned breaks, to have cold water available, and that if he felt himself becoming overwhelmed to allow him to request a short break.

21. [176]

    Whilst I had a concern regarding the plaintiff’s capacity to conduct the proceedings, Mr Brown submitted that he ought to be allowed to continue to cross-examine the plaintiff at least for a short period of time. Ultimately, that was not opposed by Mr Simpson.

22. [177]

    It became evident that part of Mr Brown’s purpose in seeking some small amount of time to cross-examine the plaintiff at that stage was to confront the plaintiff with a series of videos recording his activities on 18 and 19 March 2023 (Exhibit D4), with the intent at least initially of demonstrating that the plaintiff did not suffer from a lack of competence or incapacity, and if such competence existed, more particularly (as I refer to below) for the purpose of eventually demonstrating that the plaintiff’s health and capacity to work was not severely inhibited.

23. [178]

    As events transpired, the plaintiff continued to give evidence on the second day and on the third and final day of the hearing.

24. [179]

    Ultimately, neither counsel suggested that the plaintiff was incompetent to give evidence.

25. [180]

    Overall, my assessment was that the plaintiff was competent to give evidence. He was capable of understanding questions asked of him, was capable of giving a comprehensible answer and the mere fact that the plaintiff may have found answering the questions stressful and has some mental health issues stemming from anxiety did not preclude a finding of him being competent to give evidence: Ayoub at [17]-[20], [33]-[35], [55].

26. [181]

    There was a second issue that I raised with counsel being the plaintiff’s capacity to give instructions to conduct the proceedings.

27. [182]

    On the third day of the hearing, whilst the plaintiff was being cross-examined regarding messaging on a dating app, he became unresponsive again: T 152. The evidence was

28. [183]

    That answer per se was not an indication that he could not understand the question or give a comprehensible answer. The plaintiff sat in the witness box with his head down, unresponsive, for a period of well over a minute and a half. I adjourned the matter to again allow him to compose himself.

29. [184]

    Following the conclusion of the plaintiff’s cross-examination, Mr Simpson did not wish to re-examine the plaintiff. He sought and I permitted a short adjournment to assess the plaintiff’s capacity to continue to give instructions: T 154-155.

30. [185]

    On the assumption of the hearing no application was made by Mr Simpson to adjourn the proceedings or to intimate that the plaintiff was other than capable of continuing to give instructions.

31. [186]

    The initial presentation of the plaintiff on the first day of the hearing was a degree troubling.

32. [187]

    Nonetheless, as the hearing progressed, and the plaintiff was confronted with video material and otherwise cross-examined, I was satisfied that the plaintiff was both competent to give evidence and had an opportunity to be able to assess his evidence over a period of three days.

33. [188]

    The plaintiff presented at times whilst being cross-examined with a relatively “flat” demeanour. In Prouten v Chapman [2021] NSWCA 207, Meagher and Leeming JJA commented at [12] that for many decades judges have been conscious of the limitations of their ability to discern anything meaningful from the demeanour of a witness citing the remarks of Ipp JA (Mason P and Tobias JA agreeing) in Goodrich Aerospace at [23]-[25], who collected statements by Sir Thomas Bingham, Lord Devlin, Browne LJ, MacKenna J and Sir Richard Eggleston QC to support the proposition that “it is no wonder that judges and jurists of the highest eminence have expressed deep scepticism about the reliability of demeanour findings.”

34. [189]

    Ipp JA remarked that “[w]itnesses may be dishonest about only parts of their evidence. Nothing is more deceitful than half the truth. Care must be taken to differentiate between assessing whether a witness is being honest or deceitful, and whether a truthful witness is giving accurate or inaccurate testimony”: Goodrich Aerospace at [20].

35. [190]

    I am particular mindful of the dangers of assessing demeanour in a context in which a witness has some mental health issues.

36. [191]

    In particular, to assess the plaintiff’s evidence I have had regard to prior inconsistent statements, other contemporaneous documentary materials, the defendant’s evidence which I generally accept and the inherent probabilities of events being as deposed by the plaintiff.

37. [192]

    Ultimately, I had some concerns regarding the plaintiff’s evidence which I refer to below. Whilst certainly some of the history provided by the plaintiff I accept as being reliable, my concerns regarding the plaintiff’s credit and reliability confirms to me that I could not comfortably rely upon the plaintiff giving completely truthful or at least frank evidence on critical matters relating to his health, employment, relationship status and financial resources.

38. [193]

    The plaintiff’s updating affidavit (2 March 2023 affidavit) contains several very specific statements regarding dates and his immediate future.

39. [194]

    The plaintiff stated that he was admitted to the Currumbin Clinic as an inpatient on 3 January 2023 and remained there until 25 January 2023: CB 58[9]. That date is mistaken, the discharge having occurred on 3 February 2023 (i.e. about 9 days later): Exhibit D3-7 (Currumbin Clinic Documents Tab at page 2).

40. [195]

    The mistake points to some unreliability in his evidence. However, it is not of great moment.

41. [196]

    Some more particular details asserted by the plaintiff in the 2 March 2023 affidavit were shown to be incorrect. Specifically, the plaintiff stated that (at CB 58-59[10], [18]):

42. [197]

    That evidence is incorrect. Whilst at the commencement of the plaintiff giving evidence Mr Simpson adduced some evidence regarding the plaintiff’s financial position, no attempt was made to correct the above-mentioned evidence. In saying that I am in no way critical of Mr Simpson. Mr Simpson, on the first day of the hearing, was clearly under the (mistaken) impression that the plaintiff’s admission to the clinic had occurred on 15 March 2023: T 63.36.

43. [198]

    The plaintiff’s readmission to the Currumbin Clinic did not occur until 20 March – a fact clarified on the second day of the hearing, Mr Simpson indicating that his instructing solicitors had written to the plaintiff’s solicitors on 21 March 2023 referring to that admission: T 71.41-72.6.

44. [199]

    Mr Brown submitted that the Currumbin Clinic records indicate that there was never a proposed admission on 15 March 2023, and the only reason he attended the clinic was he knew he got caught out in a lie and he did not need that admission: T 72.33-39. Mr Brown’s concluding submissions are that the timing of the plaintiff’s termination of employment with Ausdrill and admission to the Currumbin Clinic “seem contrived” and “not his true intentions” until subpoenas were issued. He submitted that the plaintiff’s attempted explanations (regarding his termination of employment and admission to the Clinic) are not realistic: DCS [14.7]-[14.8], [14.10], [15].

45. [200]

    Mr Brown cross-examined the plaintiff as follows (at T 76.49-77.49):

46. [201]

    The submission that there was as at the time of the plaintiff’s updating affidavit on 2 March 2023 no planned admission to the Currumbin Clinic on 15 March 2023 seems to me to be correct. On 16 February 2023, a Medical Discharge Summary prepared by Dr Emeleus directed to Dr Stokes concluded (at page 4):

47. [202]

    On 16 March 2023, the plaintiff sent an email to Ausdrill at 7.22AM giving notice of his resignation effective of that date “due to stress and personal reasons”: Exhibit D3-7 (Ausdrill Documents Tab at page 57).

48. [203]

    On 18 and 19 March 2023, as the evidence I refer to below will show, the plaintiff spent a leisurely couple of days with a lady identified as Amanda on a camping trip, and to a seaside beach location (possibly Stradbroke Island): T 150.

49. [204]

    I do not accept the plaintiff’s explanation regarding the termination of his employment with Ausdrill. It seems to me that paragraph 18 of the plaintiff’s updating affidavit was intended to give the impression that as at 2 March 2023 he had informed Ausdrill that he was concluding his employment on 14 March 2023 or at least had intended to do so.

50. [205]

    I do not doubt that the plaintiff has mental health issues. However, I do not consider that the plaintiff has provided a full and frank explanation of the circumstances regarding his finishing of employment with Ausdrill and timing for admission to the Clinic, in a context where the statements in his updating affidavit dated 2 March 2023 are false.

51. [206]

    There are no records produced to the Court of his most recent admission to the Currumbin Clinic. Possibly, as contended by Mr Brown, part of the catalyst for the plaintiff’s admission to the Currumbin Clinic on 20 March 2023 was the receipt by him on 15 March 2023 of the notice to produce as well as various subpoenas (Exhibit D5) in a context where he was aware that one of those subpoenas had been issued to his employer (Ausdrill): T 41.49-50.7.

52. [207]

    The plaintiff conceded in evidence that he would be prepared to lie in order to obtain employment: DCS [14.12]. He was cross-examined as follows (at T 82.43-83.17:

53. [208]

    I address this matter a bit further below. I do not suggest that the plaintiff was lying on all matters. However, this evidence coupled with other matters that I have referred to regarding the plaintiff’s credit and reliability confirms to me that I could not comfortably rely upon the plaintiff giving frank evidence on critical matters.

54. [209]

    The plaintiff says that over the deceased’s life she would regularly tell him that she had a plan for her estate. He asserts that she planned to distribute her assets between himself and the defendant equally and that she wanted them to look after each other. He states that he had a “variation” of this discussion many times during his life and, in particular, about three years before she died (i.e. in or about March 2018). He states that he felt uncomfortable asking her about her Will in her final years. The plaintiff did not elaborate on what was said to be the “variation” of the discussion: CB 35[84].

55. [210]

    In cross-examination, the plaintiff could not seemingly recall the conversation with the deceased of an equal (50-50) division of the deceased’s estate: T 53.18-21. I reject the plaintiff’s evidence that he was told by the deceased three years prior to the deceased’s death that her estate would be divided equally. Such a statement would have been contrary to the terms of the deceased’s 2017 Will.

56. [211]

    The plaintiff did recall having a conversation with the deceased in which she said that the defendant would get more than him (in context more under her Will): T 53.15-16. Further, the plaintiff indicates that he did ask the deceased the day before she passed away if there was enough money to pay off the mortgage to which she says the deceased responded that she had a life insurance policy that would cover everything: CB 35[83]. I accept that a conversation to such effect occurred.

57. [212]

    The plaintiff was shown and cross-examined upon a number of Westpac Bank accounts of the deceased over the period from May 2015 to August 2018 which account statements became Exhibit D9.

58. [213]

    Between 4-8 January 2020, the deceased sent texts to the plaintiff regarding various matters. The texts refer to some degree of correspondence which the deceased was receiving for the plaintiff from “CSA” (which I infer was Child Support Agency): CB 141-142. The plaintiff was cross-examined regarding child support arrangements and challenged in respect of them. For want of better caution I indicated that I would provide the plaintiff with a certificate pursuant to s 128 Evidence Act. Mr Brown submitted that I should find that the plaintiff engaged in a scheme to avoid child support payments and tax: DCS [14.4]-[14.5]. I do not consider it necessary to address the issue further in the judgment. I am not persuaded that the allegations as raised against the plaintiff and on which he was challenged regarding payments to the deceased have any material bearing upon the family provision claim.

59. [214]

    In contrast to the cross-examination of the plaintiff, which was lengthy and ranged across three days, the defendant was cross-examined for just under half an hour. The cross-examination barely covers seven pages of transcript: T 176-182.

60. [215]

    Apart from topics relating to the commencement of her pension and the purchase of a Toyota Yaris vehicle the defendant was not cross-examined on other issues.

61. [216]

    The defendant gave her evidence in a straightforward way. The answers were short and unembellished often acknowledging “yes” in response to many questions.

62. [217]

    The defendant’s reference to receiving a Commonwealth disability pension in 2003 was shown to be mistaken as I have referred to below. She received the Newstart allowance initially and received the disability pension likely from about early March 2008 (CB 342) but in any event by April 2010 (CB 288) the defendant was receiving the disability pension: T 178.24-179.37; CB 342.

63. [218]

    Nonetheless, the defendant made appropriate qualifications in relation to aspects regarding the commencement of the pension and concessions in relation to the circumstances of the purchase of the Yaris motor vehicle.

64. [219]

    Other than in very minor respects, which I note below, such as where the defendant’s timing on issues was a little out, I generally accept her evidence.

Some background

1. [220]

   From at least July 1976, at the time of the defendant’s birth, the deceased, Ian and the defendant lived in Darlinghurst, Sydney. They remained living there until the plaintiff’s birth in December 1977 and either then or shortly after then moved to live in Armidale because of Ian’s employment: CB 22[7], [8], 126[2], [7].

2. [221]

   In or about 1980, the deceased caught Ian having an affair and she left him together with the children and moved to Merrylands to live with the deceased’s mother Dorothy: CB 22[8]. The deceased seemingly separated from Ian in or about 1981: CB 68 (Dr Bertucen’s report at page 3).

3. [222]

   Their time with Dorothy was short and the deceased and the children moved into a unit at Merrylands and eventually into a housing commission home in Macquarie Fields: CB 128[9]. The plaintiff attended what he describes as being numerous primary schools and indicated that he was bullied on a regular basis and struggled to find his place: CB 22.

4. [223]

   Within a few years the plaintiff describes having mental health issues: CB 22[11].

5. [224]

   In or about 1985, the deceased met Ron: CB 127[12].

6. [225]

   In or about 1986/1987, the deceased purchased her first home in Eagle Vale and Ron moved in to live with the deceased and the children at that time: CB 127[12], 22[12]. The plaintiff says that he had very little connection with Ron.

7. [226]

   In about 1989, the deceased sold the Eagle Vale home and purchased with Ron a house in Raby where they continued to live for about 10 years until it was sold in 1999: CB 127[16].

8. [227]

   In or about 1991, the deceased married Ron: CB 127[12].

9. [228]

   By about 1991, when the plaintiff was about 14 or 15, he started using drugs and alcohol on a daily basis: CB 23[14]. The defendant confirms that the plaintiff as a teenager had alcohol and drug issues stating that his behaviour and relationship with the family changed with him becoming aggressive, verbally abusive and unpredictable: CB 127[14], CB 127[19].

10. [229]

    In or about 1994, when the plaintiff was 17, he moved out to live with friends: CB 23[16]. He states that at this time he was very lost and attempted suicide by taking prescription pills which resulted in hospitalisation: CB 23-24[19]. The defendant confirms the plaintiff’s attempted suicide at this time indicating that it had a devastating effect on the whole family: CB 128[21].

11. [230]

    In 1996, at age 18, the plaintiff’s first son Dylan was born. He states he was not in a serious relationship with Dylan’s mother. The evidence does not disclose who the mother is: CB 24[20].

12. [231]

    The plaintiff purchased the deceased and Ron a Toyota Celica for approximately $2,000 in 1996: CB 24[21]. The defendant says it was purchased in 1999 and was a very old car costing about $800.00: CB 131[41].

13. [232]

    From 1996 to 1999, the defendant paid the sum of approximately $250 per week from her wages to the deceased and Ron for household expenses (which Mr Simpson describes as effectively “board”), such amount being the balance after keeping an amount of $20 herself from her wage for petrol for her car: CB 127[17].

14. [233]

    In about 1998 or 1999, the plaintiff moved to the Gold Coast, Queensland with friends and resided there for approximately 12 months before moving back to Sydney and moving in with the deceased at the home in Narellan and for a short period before moving into a rental property in Narellan and with friends: CB 24[23], [24].

15. [234]

    In 2000, the plaintiff’s second child Cody was born. The plaintiff says he was not in relationship with Cody’s mother, and he moved to the Gold Coast: CB 24[25].

16. [235]

    In about 2000, the deceased moved with Ron to live in a property at Mount Annan for about three years: CB 128[22], [26].

17. [236]

    In or about 2000 and 2001, after living in the Gold Coast for about three months, the deceased and Ron assisted the plaintiff to buy a unit at Palm Beach by obtaining a loan in their name which the plaintiff paid until he could refinance the loan under his name within a year: CB 24[26].

18. [237]

    In or about 2002, the plaintiff obtained employment as a spray painter and started work as a sub-contractor installing shower screens: CB 24[27].

19. [238]

    In early 2003, the deceased and Ron sold the Mount Annan property. The deceased, the defendant and Ron rented a house from the defendant’s uncle in Busby for a short time: CB 161[2].

20. [239]

    In or about February or March 2003, the deceased and Ron purchased a property at Mollys Place, Currumbin Waters, Queensland (Currumbin Waters property) for a price of $215,000. On 7 March 2003, a solicitor on their behalf signed a transfer of the property into their names as joint tenants, which transfer was registered on or about 16 April 2003: CB 161[3], 169. The Currumbin Waters property was encumbered by a mortgage to NAB: CB 174[2].

21. [240]

    Subsequently, the deceased and the defendant moved into the Currumbin Waters property on completion of the purchase and Ron stayed in Sydney and continued his job driving buses: CB 161[4].

22. [241]

    On 1 May 2003, Dorothy’s brother Kevin made a Will which relevantly appointed Dorothy as executrix and made provision for Dorothy, the deceased and each of the plaintiff and the defendant as well as others: CB 178.

23. [242]

    Subsequently, each of the deceased, the plaintiff and the defendant received a distribution of $25,000 by way of inheritance: CB 162[8]. The defendant indicates that each of the deceased and she paid their inheritance sum of $25,000 into the mortgage account in respect of the mortgage on the Currumbin Waters property thus reducing the mortgage: CB 162[8].

24. [243]

    In 2003, the defendant applied for a Commonwealth disability pension: CB 166[37]. From about 2003, when the defendant commenced receiving Centrelink benefits (coinciding with the time that the deceased separated from Ron), the defendant indicates that she and the deceased began sharing expenses equally: CB 166[37].

25. [244]

    From at least 28 May 2003, the defendant received a Centrelink Newstart pension in the fortnightly amount of $398.80 which was paid into the defendant’s Westpac deeming account: CB 314. The defendant was cross-examined regarding when she commenced to receive the disability pension. As I understood it, the defendant indicated that whilst she had applied for a disability pension initially, she was placed on a Newstart allowance whilst Centrelink were assessing her claim and there were a number of assessments: T 178.

26. [245]

    From approximately 2003, when the defendant commenced receiving a Centrelink pension, she indicates that each fortnight either on the day the pension was paid or within a few days after the deceased would transfer or withdraw a large portion of her pension or sometimes all of it to pay bills, the mortgage or transfer funds to her own account and did this with the defendant’s consent: CB 166[39].

27. [246]

    In or about May or June 2003, the deceased and Ron separated: CB 161[5]. They negotiated a property settlement: CB 172.

28. [247]

    In or about 2003/2004, the plaintiff says he renovated the deceased’s garage in the Currumbin Waters property into a bedroom and moved in so that he could rent out his Palm Beach unit and try to save money. He did not live there for long and moved out to live with friends in a house in Mermaid Waters: CB 25[29], [30]. At this time (seemingly 2004) the plaintiff says his depression escalated and he attempted suicide: CB 25[30].

29. [248]

    On 13 October 2004, the Family Court made property orders by consent as between the deceased and Ron: CB 161[5], 173-175.

30. [249]

    By the orders relevantly Ron was to transfer his interest in the Currumbin Waters property to the deceased on the basis that the deceased would cause Ron to be discharged of his obligations under the mortgage on the title to the property and Ron was to be entitled to all funds (whatever they be) in the joint Westpac Bank account held by the parties: CB 174.

31. [250]

    On 5 November 2004, the deceased signed as transferee the transfer of the Currumbin Waters property, which transfer was stamped on 9 November 2004: CB 171. It appears that shortly thereafter the transfer was registered.

32. [251]

    At some point, which is unidentified but perhaps in about 2004-2007, the plaintiff moved back into his Palm Beach unit and met Vivienne. He sold the Palm Beach unit and moved in to live with Vivienne at Vivienne’s parents’ home: CB 25[31].

33. [252]

    In 2006, the deceased and the defendant began to have discussions about selling the Currumbin Waters property.

34. [253]

    In late 2006, contemporaneously it appears with the deceased looking to sell the Currumbin Waters property, she and the defendant commenced to look for another property in which to live: CB 162.

35. [254]

    On 13 November 2006, the deceased signed documentation with a financier GEL Custodians Pty Ltd (GEL Custodians) relating to the prospective purchase of property in Pottsville which documentation related to community title provisions: CB 185.

36. [255]

    At about this time, the deceased exchanged contracts on the Currumbin Waters property to sell it for a price of $317,500 and also exchanged contracts to purchase a duplex in Suffolk Parade, Pottsville (Pottsville duplex) being not very far away from Currumbin Waters: CB 162.

37. [256]

    On 13 December 2006, the deceased signed a transfer to formalise the sale of the Currumbin Waters property: CB 162[13], 181.

38. [257]

    On 14 December 2006, the following day, the deceased signed a transfer to purchase the Pottsville duplex for a sum of $323,000, which transfer was registered on 3 January 2007: CB 162[14], 183.

39. [258]

    The Pottsville duplex was subject to a mortgage in favour of GEL Custodians: CB 184.

40. [259]

    The duplex, although quite new, had been a rental property for some years and was neglected as to its upkeep: CB 162[15].

41. [260]

    In or about this time (I infer 2007), the defendant says the deceased often said to her “that she could not achieve as much as we did if she were living on her own”: CB 163[16].

42. [261]

    On or about 27 April 2007, the defendant entered a contract for the purchase of a Toyota Yaris: Exhibit P2. The purchase price or sale price was $18,190 which together with various other charges came to the total payment of $19,873. A deposit of $500 had been paid and the plaintiff traded in a Daihatsu Charade for which a trade in allowance of $1,650 was given. The balance due under the contract on those figures ought to have been $17,723: Exhibit P2 at page 1.

43. [262]

    On 1 June 2007, the defendant took receipt of the vehicle, and a receipt was issued by Surf Toyota at Tweed Heads South to the defendant for a cheque sum of $18,713. The third page of Exhibit P2 which records that receipt also contains a copy of a bank cheque detail issued by Westpac recording the purchaser as being the deceased with a cheque amount.

44. [263]

    In 2007, the defendant was still receiving a Newstart allowance: T 178.25.

45. [264]

    In about 2007, the plaintiff broke up with Vivienne and had to pay her some money as part of a property settlement: CB 25[33]. At this time, he was working as a sub-contractor installing shower screens. The deceased identified to the plaintiff land for sale in Bilambil Heights and a builder and suggested to the plaintiff that he use some of the money from the sale of his Palm Beach unit to build a house, which it appears the plaintiff did: CB 25[33].

46. [265]

    On or about 27 February 2008, the defendant’s GP Dr Coates at Currumbin Medical Centre completed a treating doctor’s report for Centrelink purposes in respect of the defendant: CB 341, 347. There is some issue as to the dating of the report and the defendant was briefly cross-examined about it: T 179.

47. [266]

    On 29 February 2008, the report was received by the Centrelink office at Tweed Heads: CB 341. Having regard to the Centrelink stamp acknowledging receipt of the report, I consider that the inherent likelihood is that the report was completed by Dr Coates on 27 February 2008 (i.e., a couple of days earlier) rather than in some earlier year between 2005 and 2008.

48. [267]

    In 2008, the deceased and the defendant visited the deceased’s parents in Campbelltown. Upon their return to Pottsville, the deceased’s parents indicated that they missed the deceased and the defendant. The defendant says that the deceased’s parents were becoming elderly and starting to require assistance in their day-to-day lives: CB 163[17].

49. [268]

    In about 2008, the deceased visited the plaintiff at his Bilambil Heights house staying for approximately five days: CB 26[35].

50. [269]

    In or about 2009, in the midst of the global financial crisis, the plaintiff could not afford to stay in the Bilambil Heights property and rented it out for approximately 18 months whilst he in turn rented a unit in Mermaid Beach with a friend: CB 26[36].

51. [270]

    During 2009, the deceased and the defendant had lengthy discussions about moving to Campbelltown to care for the deceased’s parents: CB 163[17].

52. [271]

    In late 2009, the deceased and the defendant agreed to sell the Pottsville duplex and move to Campbelltown to care for the deceased’s parent. The Pottsville duplex was sold for a price of $384,000: CB 163[18].

53. [272]

    On 22 December 2009, the deceased signed a transfer of the Pottsville property (registered on 25 January 2010): CB 163[18], 187.

54. [273]

    At about this time the deceased and the defendant searched for properties near the deceased’s parents’ home and purchased a villa in Macquarie Avenue, Campbelltown (Campbelltown villa) for $286,000: CB 163[19], 189.

55. [274]

    On 29 March 2010, a solicitor on behalf of the deceased signed the transfer for the Campbelltown villa. The purchase was subject to a mortgage to Westpac: CB 163[19], 189, 190. The transfer and mortgage were registered respectively on 8 and 9 April 2010: CB 189, 190.

56. [275]

    The mortgage to Westpac was implemented via a RAMS home loan there being a drawdown on 29 March 2010 (to facilitate the purchase) in the sum of $230,446: Exhibit D10 at page 14. It appears that at that stage the deceased had equity of about $56,000 in the Campbelltown villa. The interest payments in respect of the mortgage appear to have been approximately in the order of above $1,300 per month and at times in the order of $1,435 until about 1 July 2012 at which time the interest payment came under $1,300, and then from 1 February 2013 under $1,200 per month, and from 1 October 2013 under $1,100 per month, from which time it approximated between $1,000 and $1,100 until February 2015: Exhibit D10 at pages 15-40.

57. [276]

    In about 2010, the defendant entered into the relationship with Mr Parkes: CB 164[21].

58. [277]

    The defendant’s relationship with Mr Parkes subsisted for approximately 6 months. When the defendant informed the deceased about the prospect of her moving in with Nicholas the defendant indicates the deceased became anxious and said words to the effect (at CB 164[21]):

59. [278]

    The defendant broke up the relationship with Nicholas prior to them living together: CB 164[21].

60. [279]

    Over the period from 2010 until 2017, the deceased and the defendant cared for the deceased’s parents until the deceased’s father, who was suffering lung cancer, was in remission and the deceased’s mother, who was suffering from dementia, moved into full-time care. The deceased’s brother (and defendant’s uncle) Mark Moodie offered to continue the care and assistance of the deceased’s parents: CB 164[22].

61. [280]

    In about 2013, the plaintiff moved back to his Bilambil Heights house. Tenants had damaged the property and the plaintiff sold the property claiming to have lost “a lot of money” and having to “significantly downsize”. He bought a townhouse in Carrara: CB 26[37].

62. [281]

    In 2014, the plaintiff was living with and engaged to a girlfriend Candy McMullen (Candy) (Exhibit D3-7 Facebook Documents Tab at page 51) and at about this time purchased a motor vehicle from Candy for about $10,000 which he gifted to the deceased who came up to the Gold Coast to collect the car: CB 26[38].

63. [282]

    On or about 30 May 2014, the deceased it appears borrowed a further amount of money through RAMS recorded in a separate account: Exhibit D10 at page 41. On 30 May 2014, there was a drawdown of $45,786 that appears to have been an interest only loan which was discharged on or about 18 January 2016: Exhibit D10 at pages 41-52.

64. [283]

    In 2015, the plaintiff separated from Candy. However, the plaintiff continued to live in the Carrara townhouse: CB 27[39].

65. [284]

    In 2015, the deceased and the defendant discussed the possibility of moving back to northern New South Wales to live: CB 164[23].

66. [285]

    On or about 26 February 2015, there appears to have been some form of refinancing and the initial Campbelltown villa home loan was closed off: Exhibit D10 at page 40. At the same time (26 February 2015), a separate RAMS loan account was opened with the balance of the first account (Exhibit D10 at page 40) of $230,444.91 being recorded as a drawdown in the separate account: Exhibit D10 at page 53.

67. [286]

    In late 2015, the deceased sold the Campbelltown villa for $505,000 and the deceased and the defendant rented in the Campbelltown vicinity for a few years to still be close to the deceased’s parents: CB 164[24].

68. [287]

    On 18 January 2016, the deceased signed a transfer of the Campbelltown villa consequent upon the sale of the property: CB 164[24], 192.

69. [288]

    On 19 January 2016, coinciding closely with the date of the transfer of the Campbelltown Villa consequent upon its sale, the RAMS home loan account was discharged with payment of $231,309.21 and, subject to two additional payments ($569.30 for interest and $295 mortgage discharge fee) the account was closed.

70. [289]

    In 2016, the deceased and the defendant found on the internet a block of vacant land in a proposed subdivision in Murwillumbah and entered into an off the plan contract to purchase the Murwillumbah property for a price of $225,000 without physically attending on the site to view the land: CB 164[25].

71. [290]

    Between approximately 17 January 2017 and 2 May 2017, the plaintiff worked for JW Australia Pty Ltd: Exhibit D1. That was the same company that he was subcontracting to, and, it appears, at least during that period, he was on a “wages job” there: T 112.

72. [291]

    In about 2017, the plaintiff met Dominique who, with her two children, moved into the plaintiff’s townhouse. At this time, the deceased and the defendant came up to the Gold Coast and stayed (seemingly briefly) with a friend of the deceased in Mermaid Waters: CB 27[41].

73. [292]

    On 9 May 2017, the deceased executed a form of enduring power of attorney and enduring guardianship in favour of the defendant and Lesley-Ann Watson: Exhibit D7 pages 45-57.

74. [293]

    On 16 May 2017, the deceased signed a transfer to receive title to the Murwillumbah property. The purchase was subject to a mortgage from Westpac which the deceased also signed at the same time. The mortgage and transfer were registered on or about 25/26 May 2017: CB 164[25], 194, 195.

75. [294]

    On 16 May 2017, a separate RAMS home loan account was opened with a drawdown of $111,708 referable to construction of premises on the Murwillumbah property: Exhibit D10 at page 59.

76. [295]

    Between approximately May 2017 and December 2017, a house was built on the Murwillumbah property at an additional cost of $213,953: CB 165[26]. The house is a 4-bedroom home: CB 27[40].

77. [296]

    There were drawdowns on the loan during this period being construction progress payments commencing on 5 September 2017 going through to 13 December 2017 with a final construction payment which had the effect of increasing the loan debt to $316,756.78 by 1 January 2018: Exhibit D10 at pages 62-65.

78. [297]

    In December 2017, the deceased and the defendant moved into the Murwillumbah property to live: CB 165[26]. Since that time, the defendant indicates they have continued to improve the Murwillumbah property by hiring tradesmen in carrying out landscaping, installing air conditioning, exhaust fans, additional power points and lights, a CCTV system, fences, security doors and screens as well as thermal insulation in the garage: CB 165[28]. The defendant indicates that she and the deceased discussed travelling albeit that the deceased would say “before we travel we have to have our finances in order and make sure there was enough money to cover the mortgage and other expenses as well”: CB 165[30], [31].

79. [298]

    After 1 January 2018, the amount of the debt increased to above $318,000 and then started to effectively decrease down to $301,687.48 by the time of the deceased's death: Exhibit D10 at page 85. During that period, there were payments monthly credited to the account initially over about $1,300, then rising as of 1 June 2018 to over $1,700, then from 31 July 2019 coming under $1,700 but still above $1,600, and then from 31 May 2020 payments were in the order of approximately $1,500 per month. Notably, after the deceased’s death the balance of the account started to increase with a number of direct debit dishonours: Exhibit D10 at pages 88-89. The dishonours were not explained by the evidence but may have related to issues in delay in obtaining probate or other difficulties consequent upon the deceased’s death. As at 31 December 2021, with those issues the account had increased to have a closing balance of $310,044.98: Exhibit D10 at page 90.

80. [299]

    In 2018, the deceased was diagnosed with pancreatic cancer: CB 165[32].

81. [300]

    In 2018, the plaintiff sold the Carrara townhouse and bought another townhouse with Dominique in which he lived seemingly briefly with her and her two children: CB 27[42]. The plaintiff became engaged to Dominique. However, they broke up shortly after. Dominique paid to the plaintiff what he put into the townhouse and the plaintiff moved out into share accommodation in Burleigh Heads: CB 27[42].

82. [301]

    In 2018, the plaintiff says he hit “rock bottom” and became suicidal. He checked himself into the Currumbin Clinic which is a private psychiatric/mental health facility on the Gold Coast: CB 27[44]. The report of Dr Emeleus dated 16 February 2023 indicates that the admission was in a context in which the plaintiff had adjustment disorder with depressed and anxious mood in the aftermath of a relationship breakup: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 3).

83. [302]

    The precise timing for the plaintiff’s admission to the Currumbin Clinic in 2018 is not clear.

84. [303]

    The plaintiff’s initial affidavit suggested or at least gave the impression that he had been admitted for a period of two weeks to the Currumbin Clinic, coinciding with his mother’s diagnosis of cancer and admission to Tweed Heads Hospital: CB 27-28[45]. The plaintiff’s admission to the Currumbin Clinic in 2018 was confirmed by report dated 16 February 2023 from Dr Emeleus to Dr Stokes Exhibit D3-7 (Currumbin Clinic Documents Tab at page 3). However, there is some material in the proceedings suggestive that the admission spanned for approximately two months between 16 July 2018 to 18 September 2018: Exhibit D8 at page 2 (letter from plaintiff’s solicitors to Dr Bertusen enclosing Clinical Notes and Records of Currumbin Clinic for that period). The precise timing of the 2018 admission was not resolved in the evidence and I am unable to make a definitive finding regarding it other than to accept that it was for a period of at least two weeks most likely from about mid-July 2018. There is evidence that on 5 August 2018, the plaintiff was not at the Clinic but standing on a rock adjacent to the seashore line at Burleigh Point: Exhibit D3-7 (Facebook Documents Tab at page 31).

85. [304]

    The plaintiff says that during the time the deceased had become unwell and was admitted to the Tweed Heads Hospital for surgery for the pancreatic cancer, he was still an inpatient at the Currumbin Clinic: CB 27-28[45].

86. [305]

    The plaintiff claims to have sneaked out of the clinic to spend some time with the deceased, which he says he had not been able to do since the deceased had visited him many years before that: CB 28[46].

87. [306]

    Later in 2018, after the plaintiff’s admission to the Currumbin Clinic he rented a unit in Burleigh Heads he says by himself and from this time his work as a shower screen installer diminished before he quit working as a sub-contractor at the end of 2019: CB 28[49].

88. [307]

    From about the end of 2019, for just over a year, the plaintiff states that during this time he spent more than half of his savings from selling the house and did not qualify for any government assistance: CB 28[49], [50]. He attended day sessions at the Currumbin Clinic and continued to see “another psychologist”: CB 28[50].

89. [308]

    The plaintiff seemingly acknowledges he had little contact with the deceased in about 2019-2020 asserting that “it was very hard on” him mentally as he could not speak with the deceased on the phone as the defendant was always in the background and every time he attempted to visit the deceased at her Murwillumbah property and do work for her the defendant was always there: CB 29[51].

90. [309]

    In about January 2020, the plaintiff met a girlfriend Taryn Carpenter (Taryn) who moved into the unit the plaintiff was renting at Burleigh Heads: CB 29[53].

91. [310]

    On 18 August 2020 and 23 September 2020, the deceased hand wrote two letters which after the deceased’s death the defendant located amongst the deceased’s documents: CB 153[3], 156, 158.

92. [311]

    The deceased's handwritten letter dated 18 August 2020 is not specifically addressed to any person. Apart from the date and the address of the Murwillumbah property (and the word “copy” in the top right-hand corner) the document does not contain any formal heading. The document is signed at its foot by the deceased. The contents of the document apart from those formal parts is as follows (at CB 156):

93. [312]

    The deceased’s handwritten letter dated 23 September 2020 bears a similar setting out to the 18 August 2020 letter (although it does not contain the word “copy” in the top right-hand corner). It is signed by the deceased and the body of the letter is in the following terms (at CB 158):

94. [313]

    In about September 2020, the plaintiff told the deceased that he wanted to speak with her and see her “without Rebecca interrupting and getting involved in conversations”. He says that the deceased “got defensive”: CB 29[52].

95. [314]

    The plaintiff claims that the deceased would often call or message him (I infer in or about 2020) to attend to see her at the Murwillumbah property to either mow the lawns or do things around the house. He says that he was not allowed into the house by the defendant: CB 29[54].

96. [315]

    In Christmas 2020, the plaintiff arranged for Cody to see the deceased however an arrangement to spend Christmas morning with the deceased and the defendant was cancelled as the deceased was too ill: CB 29[55].

97. [316]

    On 6 March 2021, the deceased telephoned the plaintiff indicating to him that doctors had informed her that they could not provide any more active treatment as she was too weak and that one of her lungs had collapsed and the other had fluid on it. The plaintiff says that he and Taryn went to the deceased’s Murwillumbah property the next day and spent hours with the deceased and Rebecca and reminisced with old stories: CB 30[56].

98. [317]

    On or about 7 March 2021, the deceased was admitted to palliative care at Murwillumbah Hospital and the plaintiff states that he and Taryn stayed with the deceased at the hospital for the next few nights before the plaintiff returned to work: CB 30[57].

99. [318]

    In or around April 2021, the plaintiff states he separated from his girlfriend Taryn Carpenter. However, he states that they remained friends and he continued to reside at her unit in Burleigh Waters paying rent and contributing to expenses: CB 57[3].

100. [319]

     Between July 2022 and 2 March 2023, the plaintiff indicated that he struggled with his work at Ausdrill and had a significant period of time off work: CB 58-59[18].

101. [320]

     In or around August 2022, the plaintiff received a small legacy from his father’s estate in the sum of $10,000: CB 60[27(d)].

102. [321]

     In mid-December 2022, the plaintiff says that Taryn asked him to move out of the unit, which he did. He rented a storage shed to store his belongings and stayed with his half-sister in Tamworth for a short period: CB 57[4].

103. [322]

     On 3 January 2023, the plaintiff was admitted to the Currumbin Clinic before being discharged a month later on 3 February 2023: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 2).

Plaintiff

1. [323]

   The plaintiff says that he and the deceased spoke numerous times a day for most of his life until the deceased got sick in 2018, at which point he says the deceased’s phone was off or put on silent or not answered by her and said he could not make contact with the deceased: CB 30[59], [60]. The plaintiff informed Dr Bertucen that he had a warm relationship with his mother: CB 68.

2. [324]

   The plaintiff’s financial position varied to some degree as between the time of his initial affidavit (8 February 2022) and his updating affidavit (2 March 2023).

3. [325]

   In addition, when the plaintiff was called to give evidence on the first day of the hearing (27 March 2023), the plaintiff both corrected and gave some supplementary detail regarding his financial position: T 31-34.

4. [326]

   The plaintiff’s employment and financial position was the subject of the following evidence. It appears that from about 2002 until 2018, the plaintiff worked as a sub-contractor installing shower screens seemingly as full-time employment: CB 24[27], 25[33], 27[43].

5. [327]

   From about 2018 until late 2019, the plaintiff’s work in this regard as a sub-contractor diminished until he quit that work at the end of 2019. From this time, for about a year, he states that he was out of work: CB 28[49]-[50].

6. [328]

   The plaintiff has at times operated a home handyman business through an entity Coastal Abundance of which he is the sole director and shareholder: CB 42, 58[13].

7. [329]

   From approximately late 2019 until November 2021, the plaintiff received some form of Centrelink income: CB 28[49], 32[70]. The plaintiff indicates that due to his mental health and instability of income he has had to sell personal possessions to support himself. However, there are no details given regarding that: CB 32[71].

8. [330]

   The plaintiff says for some period up to 18 November 2021 he had received a government small new enterprise incentive payment which ceased at that point: CB 32[70], 41. The plaintiff indicates that he has not drawn wages from Coastal Abundance since 13 December 2021: CB 41. Nonetheless, the company was still paying certain motor vehicle fuel and telephone expenses for the plaintiff: CB 44.

9. [331]

   At the time of the plaintiff’s initial affidavit (8 February 2022), the plaintiff disclosed that:

   1. (1)

      he was receiving a Newstart allowance of $1,462.50 per month: CB 31[64]; and

   2. (2)

      Coastal Abundance had roughly break-even monthly income (approximately $1,300 in revenue and $1,323.80 monthly in expenses excluding credit card balance: CB 42).

10. [332]

    Seemingly, from about 2021 until July 2022, the plaintiff worked for Coastal Abundance albeit that he says that he had significant periods of time off work between February and July 2022: CB 58[13].

11. [333]

    In around July 2022, the plaintiff says he commenced employment with Ausdrill: CB 58[14]. The employment was seemingly as a Mine Worker Induction Level 2 (being an offsider on a drill rig on a coal mine at Moranbah, digging holes taking samples, and driving trucks to the next drill point): T 96.14-32.

12. [334]

    As at the time of the plaintiff’s first affidavit, he disclosed monthly expenditure relating to his health as including private health insurance of $144, psychiatrists’ fees of $332.50, medication of $70-$150 and gym membership of $42: CB 44.

13. [335]

    In his updating affidavit (2 March 2023), the plaintiff stated that after commencing work with Ausdrill he did less work through Coastal Abundance such that the company has basically ceased operating with the last job he completed for Coastal Abundance being in December 2022 for $200: CB 58[17]. He has cancelled he says many of the monthly expenses for the company: CB 60[27(f)].

14. [336]

    In his updating affidavit (2 March 2023), the plaintiff disclosed his monthly income as being the wage from Ausdrill in the sum of $4,700: CB 83. The plaintiff said his wage with Ausdrill varied subject to allowances and bonuses albeit that on average he states his monthly wage was approximately $6,500 gross or $4,700 net per month. He works on a roster basis generally involving swings of seven days on and seven days off. He travels to Brisbane at the commencement of each swing to fly to the site and incurs a parking fee of approximately $80 to $140 each time to park at the airport: CB 58[14]-[16]. The plaintiff indicates that he has struggled with the work at Ausdrill and has had significant time off work between July 2022 and March 2023. He has exhausted he says all of his personal leave and annual leave: CB 58[18].

15. [337]

    The plaintiff claimed that he finished his employment with Ausdrill on 14 March 2023 as a precursor to being admitted to the Currumbin Clinic for further inpatient treatment (the affidavit suggesting that was to happen on 15 March 2023): CB 58-59[18].

16. [338]

    The plaintiff indicates he has the following assets (CB 82-83, T 32):

    1. (1)

       A motorcycle (Nighttrain Softail 2007) $18,000;

    2. (2)

       Household and personal effects $30,000;

    3. (3)

       Jewellery $1000; and

    4. (4)

       Westpac savings $80,000.

17. [339]

    The plaintiff asserts that he has approximately $36,600 in superannuation: CB 83. No details about the superannuation have been provided notwithstanding the issue of a notice to produce for information in respect of it. It is unclear to what if any extent the plaintiff is able to access the superannuation.

18. [340]

    At the time of the hearing, the plaintiff had no liabilities.

19. [341]

    On the first day of the hearing, the plaintiff in supplementary evidence in chief disclosed that apart from the $80,000 of Westpac savings he had three additional bank accounts totalling approximately $10,500 as follows:

    1. (1)

       NAB eSaver account $6,000;

    2. (2)

       NAB account $1000; and

    3. (3)

       Choice account $3,500.

20. [342]

    I pause to note that savings of $80,000 with Westpac accords with a statement for the Westpac account ending 708. However, it does not include two further amounts for the Westpac account ending 955 (closing balance 28 February 2023 $8,283.04) and the Westpac account ending 338 (closing balance 31 January 2023 $1,792.42): Exhibit D3-7 (Notice to Produce Documents Tab).

21. [343]

    The total of the Westpac accounts is about $90,075 ($80,000 + $8,283.04 + $1,792.42): Exhibit D3-7 (Notice to Produce Documents Tab). That sum plus the additional approximately $10,000 from the NAB accounts gives the plaintiff current savings of about $100,000. That fact appeared to be confirmed by Mr Simpson in submissions (T 203.43) and I proceed on that basis.

22. [344]

    The plaintiff supplemented his evidence regarding property held by Coastal Abundance indicating that it had assets being a Toyota HiAce Van insured for about $10,000-$12,000 and cash of approximately $6,000-$8,000: T 34. The company has additionally some tools. It has no debts: T 34.

23. [345]

    The plaintiff’s updating affidavit indicated that Coastal Abundance had no monthly revenue but had monthly expenses totalling approximately $1,203.60, said to exclude a credit card balance: CB 84-85. The company was still paying fuel and telephone expenses for the plaintiff: CB 86. It is not quite clear how that evidence sits with the company ceasing to operate. The plaintiff disclosed monthly expenses of $3,012.67 approximate to the hearing (CB 86) which expenses were slightly increased from his expenses in his initial affidavit being $2,874.50 per month with the increase being explained by an increased amount for apparently rent coupled with various other adjustments: CB 86.

24. [346]

    The plaintiff was questioned as to whether he had ever had income protection insurance. He indicated that he could not recall: T 112.

25. [347]

    On 5 July 2016, the deceased corresponded with Bronwyn Fordham of Trade Sure seeking a quote for income insurance for the plaintiff. The plaintiff was shown emails between the deceased and Bronwyn and eventually these were tendered and became Exhibit D2: T 115. The emails do not clearly indicate that such income insurance was in fact taken out or even if it was taken out that it still subsists. To the extent that it is suggested that the plaintiff has any such income insurance going forward, I am not satisfied that that is the case.

26. [348]

    The plaintiff asserts that he contributed to the deceased financially in the following ways (CB 30[58], 34[80]):

    1. (1)

       giving the deceased full access to his bank accounts and credit card access for his business;

    2. (2)

       he renovated the garage of the Currumbin Waters property to a large bedroom including installing carpet, a built-in wardrobe and external doors and landscaping the outdoor areas and maintaining the lawn;

    3. (3)

       he landscaped the outdoor areas of the Pottsville duplex and maintained the lawn;

    4. (4)

       he inspected the progress of the building of the Murwillumbah property, whilst the deceased lived interstate, tiled the entry and back patio areas, did some landscaping, built gardens and maintained the lawn;

    5. (5)

       he gave the deceased access to his credit card for use to buy things she needed over the years for her homes; and

    6. (6)

       he gave the deceased mobile phones and computers over the years when she could not afford to purchase these items herself: CB 34[80].

27. [349]

    The plaintiff adduced a degree of evidence relating to his health. He was also cross-examined to a lengthy degree regarding this. I address the evidence and my findings on this issue below

28. [350]

    The plaintiff acknowledges that the deceased made some provision for him during her lifetime referring to:

    1. (1)

       the assistance he received in or about 2000 and 2001 by the deceased and Ron obtaining a loan in their name facilitating the plaintiff being able to buy a unit at Palm Beach albeit that he serviced the borrowings until he could refinance the loan under his name within a year: CB 24[26]; and

    2. (2)

       a housewarming gift of roller blinds and fly screens on the sliding doors for his house in Bilambil Heights to the value of approximately $5,000: CB 34[81].

29. [351]

    The plaintiff’s initial affidavit in February 2022 did not outline in any particularly clear way his claim for provision.

30. [352]

    The plaintiff said that he could not foresee being able to purchase a property on his own or being able to rent in the current market. He said he does not have enough money for a deposit for a loan and being self-employed and having unstable income contributes to that: CB 32[74]. The plaintiff expressed some belief that his son Dylan would be relying upon him in the future to help support Dylan financially and with accommodation however no details were given beyond that assertion: CB 33[75].

31. [353]

    The plaintiff’s updating affidavit did not expressly outline his claim for provision other than to indicate that given his current mental health he would prefer to have a place of his own and would like to obtain permanent accommodation in the Burleigh Heads or Palm Beach areas so as to have access to medical treatment and a support group of friends: CB 59[23], [24].

32. [354]

    The plaintiff provided searches of the costs of one- and two-bedroom units in those areas: CB 59[25]. The searches provided by the plaintiff disclosed that the cheapest form of such accommodation identified by him commenced at $550,000 (negotiable) being a two-bedroom two-bathroom unit with parking at Burleigh Waters (CB 80). A one-bedroom one-bathroom unit with parking was available at Palm Beach at $579,000 and a two-bedroom one-bathroom unit with parking available at Palm Beach for $599,000: CB 79, 78. The other search printouts disclosed one-bedroom units available in Burleigh Heads with offers over $610,000 and at Palm Beach with offers over $615,000 (ranging up to interest over $640,000): CB 74-77.

Defendant

1. [355]

   The defendant says that her relationship with the deceased was always very close, and they rarely fought or disagreed on anything: CB 133[64], 167[43]. She describes her relationship with the deceased over the period from approximately 2002 to 2022 as being one of close mutual inter-dependence: CB 165[33].

2. [356]

   The defendant indicates that the deceased had free access to all of the defendant’s bank accounts and asserts that the deceased used the defendant’s money as her own but for both of their benefits and that the deceased managed her finances with the defendant largely to the exclusion of the defendant: CB 166[34].

3. [357]

   The defendant’s financial position was addressed in both of her affidavits dated 4 April 2022 and 14 March 2023.

4. [358]

   At some stage, perhaps from about early March 2008 (CB 342), but, in any event, by April 2010 (CB 288), the defendant was receiving the disability pension: T 178.24-179.37; CB 342.

5. [359]

   As at 14 March 2023, the defendant disclosed the following assets:

   1. (1)

      Bank account approximate balance of $5,000;

   2. (2)

      Toyota Yaris motor vehicle $3,000; and

   3. (3)

      The Murwillumbah property.

6. [360]

   The defendant has deposited $100,000 into her solicitor’s trust account essentially to cover costs to the conclusion of the hearing: CB 335[15].

7. [361]

   The defendant disclosed that she had been advised by the solicitor for Barry’s estate that she is to receive an amount of approximately $189,000 once the estate is finalised. She states that once she receives those funds and after paying the costs of the proceedings and paying off the mortgage, she will have available to her a fund of approximately $70,000 (other than the Murwillumbah property and ongoing receipt of the disability pension): CB 335[12], [19], [21]. The defendant has no superannuation: CB 335[20].

8. [362]

   The defendant confesses to being not very computer literate and until only a few months prior to the deceased’s death did not know how to do online banking or internet transfers. It was only in the context of the deceased’s rapidly declining health that the defendant with the deceased’s and plaintiff’s assistance learnt how to do internet banking in the days prior to the deceased’s passing: CB 166[40].

9. [363]

   I refer more specifically to the defendant’s evidence regarding a trust claim below. Nonetheless, it is appropriate at this point to set out a description of the defendant’s contributions to the acquisition, maintenance and improvement of the deceased property.

10. [364]

    At or about the time that the deceased was finalising the family law settlement with Ron (which I infer was in or about late 2004), the defendant says that the deceased said to her words to the effect “we would need to pool all of our income and accounts in order to pay the mortgage and our living expenses” and “she would be unable to survive financially on her own”: CB 161[6].

11. [365]

    The defendant indicates that she assisted the deceased to buy and improve properties as a “partnership” although her name was never placed on the title to any of the properties registered in the deceased’s name and that when buying and selling such properties she worked as a team with the deceased following a joint strategy of making repairs and refurbishments to the property and improving such property: CB 166[41], [42].

12. [366]

    The defendant indicates that she worked with the deceased on various of the properties purchased by the deceased. Specifically, the defendant says that:

    1. (1)

       while living at the Currumbin Waters property she and the deceased carried out improvements to the unit by removing the existing gardens, having them mulched and replacing them with new plants, placing rock edging on the side boundaries, replacing the letterbox and having pathways covered in pebblecrete, the gardens professionally edged, replacing fences and painting existing fences, installing an air conditioner, replacing the blinds, curtains and fly screens throughout the townhouse and painting the interior and replacing all the doorknobs, locks and handles throughout with stainless steel types: CB 161-162[7];

    2. (2)

       whilst residing at the Currumbin Waters property the deceased and the defendant won a sum of $500 in a local landscaping competition which assisted them to purchase landscaping material: CB 162[9];

    3. (3)

       she and the deceased shared in labour and expenses of maintaining and improving the Currumbin Waters property as well as the mortgage repayments: CB 162[11];

    4. (4)

       after the purchase of the Pottsville duplex, over a few years, she and the deceased hired tradesmen to install fences and gates, install an air conditioner, install stainless steel exhaust fans in the kitchen and bathroom, replace all the blinds, curtains and fly screens and renovate the gardens including removing overgrown vegetation and re-landscaping the garden area: CB 163[16];

    5. (5)

       the Campbelltown villa was in need of maintenance and repair and that she and the deceased carried out extensive landscaping, removing all plants and replacing them with new species, fencing the perimeter with picket fencing, repairing the front and rear verandas and replacing the balustrade. They installed blinds and curtains and carried out a full repainting of the property. They replaced all the electrical appliances in the kitchen and the cabinet doors and handles: CB 163[20]; and

    6. (6)

       with regard to the Murwillumbah property, she and the deceased collaborated together in relation to the layout and design of the home including in respect of colouring and pattern choices: CB 165[27]. The defendant indicates that the deceased said that she wanted the defendant to be happy with the home because it was going to be her home one day albeit that it presently was their home: CB 165[27].

13. [367]

    The defendant has various health ailments including chronic fatigue syndrome (CFS).

14. [368]

    There is some material suggestive that the onset of the defendant’s CFS dates to a time in about 1991 when she was 24 when she underwent a routine surgical procedure and during the recovery phase reported turning purple and was diagnosed with low blood pressure: CB 357[18] (Report of Ms Campbell).

15. [369]

    I find that it was not until about 2002 until 2003, that the defendant exhibited various symptoms which allowed a diagnosis of CFS in 2003: CB 342 (Report of Dr Coates). The defendant, in her affidavit evidence, dated the diagnosis a little later as being in 2004: CB 134[65]. However, I find based on the Report of Dr Coates it was diagnosed from about 2002-2003.

16. [370]

    From approximately 1998, the defendant had onset of depression, anxiety and panic attacks: CB 344.

17. [371]

    The defendant stated in her affidavit evidence that she had been on a disability pension since that CFS diagnosis (in 2004, though I find it was earlier namely from about 2002-2003): CB 134[66]. However, that was clarified in cross-examination, and it appeared that initially she commenced on a Newstart Allowance whilst she was being assessed by Centrelink.

18. [372]

    The defendant states that she has been diagnosed with and also suffers from irritable bowel syndrome, fibromyalgia, endometriosis and polycystic ovary syndrome: CB 134[67]. The defendant indicates that since the deceased’s death she has been suffering from depression and anxiety: CB 134[68]. Her GP Dr Jacqueline Wilson completed a Mental Health Care Program for her referring her for six sessions to a psychologist: CB 144 (Dr Wilson’s report dated 15 March 2022 is incomplete within the Court Book).

19. [373]

    On the last day of the hearing, Mr Brown sought to read an affidavit of the defendant directed to supplementing material in the defendant’s initial affidavit (4 April 2022) which related to her health issues and inability to work, for which I gave leave to supplement: CB 185[78], T 20.29.

20. [374]

    The affidavit was objected to by Mr Simpson as going well beyond any prior indication of certain health issues previously disclosed by the defendant: T 169-170. Large parts of the affidavit were eventually rejected by me. Nonetheless, the following evidence in summary was relevantly admitted:

    1. (1)

       that since 2001, the defendant had suffered with very low energy levels on a daily basis and has to push herself mentally to get out of bed each day into regular activities such as showering and preparing food for herself, making it impossible for her to have a set time to start work;

    2. (2)

       the defendant is in constant pain which fluctuates and can randomly occur anywhere in her body meaning that at any workplace she would need sudden breaks;

    3. (3)

       on a daily basis a simple task of paying a bill or preparing food can take considerable time;

    4. (4)

       the defendant can have a reaction to foods if she eats gluten and many chemicals in food and so constantly has to monitor her diet in order to avoid serious abdominal pain and diarrhoea and if she accidentally eats the wrong food and has abdominal pain and diarrhoea at any work she would have to leave;

    5. (5)

       she suffers from a constant ringing in both ears which fluctuates, and this can affect her hearing if it becomes louder;

    6. (6)

       she averages very limited hours of sleep in any 24-hour period and is constantly tired and lethargic when she awakes, finding it difficult to sleep having no regular sleep patterns such that it would be difficult for her to keep (I infer at work) any set hours;

    7. (7)

       she experiences severe anxiety and stress when she has to interact with people she does not know and with the exception of Facebook, phone calls and visits from a few close friends and family she does not socialise; and

    8. (8)

       she needs to focus almost all of her time and energy on trying to maintain a healthy balanced diet and sleeping pattern and would have no time for a job.

21. [375]

    The report of Dr Coates as at February 2008 disclosed at least at that stage that the defendant had panic attacks: CB 344.

22. [376]

    The evidence of Dr Wilson in a report dated 31 May 2022 confirms to a substantial degree the defendant’s statements regarding her health issues: CB 349-350. Dr Wilson confirmed, apart from the conditions I have referred to above (CFS, irritable bowel syndrome etc), that she has multiple sensitivities to food and chemical intolerances: CB 349.

23. [377]

    Dr Wilson’s report confirmed that to a degree the deceased and the defendant cared for one another at various times (at CB 349):

24. [378]

    In relation to the defendant’s ability to work, Dr Wilson stated as follows (at CB 350):

25. [379]

    Dr Wilson referred the defendant to see a local psychologist: CB 350.

26. [380]

    On 16 February 2023, Sarah Campbell (a clinical psychologist) prepared a report in relation to the defendant: CB 353.

27. [381]

    Albeit that Ms Campbell’s report was made in a context in which these proceedings were on foot (approximately five weeks prior to the commencement of the hearing), the report records in part that (at CB 357[21]):

28. [382]

    The above comment reported to Ms Campbell are consistent with the defendant’s evidence regarding sharing of finances and resources with the deceased.

29. [383]

    Ms Campbell expressed the opinion that the defendant has an established diagnosis of major depressive disorder and panic disorder within the context of chronic health conditions characterised by pain, lethargy, fatigue and inflammation. Further, she opined that these conditions have significantly impacted on her capacity to work, participate in leisure activities and fulfil other obligations typically expected from healthy and adjusted adults: CB 362[45].

30. [384]

    Ms Campbell expressed the opinion that the defendant has been treated optimally but (nonetheless) her symptoms continue to persist. She states that it is likely that the defendant will need to commit to a low stress lifestyle that is free from too many pressures or demands so that she can manage fatigue or pain flareups as they present in her future: CB 363[49].

31. [385]

    Mr Simpson submitted that there is no evidence that the defendant has ever attempted to obtain part-time employment, nor any evidence that she could not obtain at least (some) part-time employment: POS [68]. However, Mr Simpson did not cross-examine the defendant to challenge her ability for work.

32. [386]

    I find that the inherent likelihood is that the defendant will not be able to recover full health, her CFS being chronic, and that there is no real likelihood that she would now or in the future towards her 60s be likely to obtain any lasting form of part-time work.

33. [387]

    I have referred above to the defendant’s competing claim to retain the Murwillumbah property. As it was the subject of particular dispute, I address more specifically below the defendant’s claim to retain the testamentary provision given to her.

Plaintiff’s relationship status

1. [388]

   The plaintiff was challenged regarding his living arrangements.

2. [389]

   The plaintiff appears to have had a series of short-term relationships. However, his affidavit evidence is quite vague regarding the details of the relationships.

3. [390]

   There is evidence which discloses that the plaintiff was at some point married: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 3). Yet the plaintiff does not refer to ever being married.

4. [391]

   The evidence of the plaintiff’s relationships includes the following:

   1. (1)

      in 1996, the plaintiff had a sufficient relationship with a woman who is not identified other than being his son Dylan’s mother albeit that the plaintiff describes the relationship as “not serious”: CB 24[20];

   2. (2)

      in or about 2000, the plaintiff’s son Cody was born. He indicated during the hearing that Cody’s mother was Candice Femsom: T 45. He gave evidence that he was not in a relationship with her: CB 24[25];

   3. (3)

      in or about 2006-2007, the plaintiff was engaged to Vivienne: CB 25[31]-[33], 129[30];

   4. (4)

      from about 2013 to 2015, the plaintiff was in a relationship with Candy: CB 26-27[37]-[39]; Exhibit D3-7 (Facebook Documents Tab at page 51);

   5. (5)

      from 2017 to 2018, the plaintiff was in a relationship with Dominique who has two children from another relationship and became engaged to her before shortly after breaking up: CB 27[41]-[42]; CB 60[27(i)];

   6. (6)

      from January 2020, the plaintiff was in a relationship with Taryn who moved into the unit the plaintiff was renting at Burleigh Heads: CB 29[53]. The plaintiff asserts they separated in April 2021 albeit that he remained living in the unit she had in Burleigh Waters until December 2022: CB 57[3],[4]; 58[11(a)].

5. [392]

   The plaintiff in his initial affidavit claimed to be not cohabiting with anyone or in a de facto or domestic relationship stating “I am single”: CB 33[76], 43.

6. [393]

   The word “single” may be used as an adjective or noun. The Macquarie Dictionary, online ed contains numerous options in defining “single”.

7. [394]

   Relevantly, the Dictionary defines “single” as an adjective as follows:

8. [395]

   The Dictionary (relevantly) defines “single” as a noun as follows:

9. [396]

   Mr Brown submitted that the Court should find that the plaintiff was in a de facto relationship with Taryn until December 2022: DCS [14.2].

10. [397]

    I accept that submission and reject the plaintiff’s evidence to the contrary.

11. [398]

    There are several documentary materials suggestive that the plaintiff was in a relationship with Taryn well beyond April 2021.

12. [399]

    First, an online form completed by the plaintiff in June-July 2022 in which he described his marital status as “Defacto” (or accepted that option of a description of his status: T 105) and “Taryn Carpenter” described as “Partner” as being the relevant person for personal and emergency contact details: T 104-105, Exhibit D3-7 (Ausdrill Documents Tab at page 105).

13. [400]

    The plaintiff was cross-examined regarding the form (T 104) as follows:

14. [401]

    I reject the plaintiff’s explanation that his description of Taryn as “partner” was not because he was in a relationship with her but merely to facilitate the disposition of his estate should he die.

15. [402]

    Secondly, the report of Dr Bertucen dated 30 January 2023 contains the following (at CB 67, 69):

16. [403]

    The plaintiff indicated that the note in Dr Bertucen’s report that the plaintiff had “separated from his partner (together 12 months) in mid-December 2022” (CB 67) was a minor factual error and that he had in fact separated from Taryn in April 2021 but remained living in her home until December 2022: CB 58[11(a)].

17. [404]

    Dr Bertucen was cross-examined by Ms Coventry at least initially regarding the detail in his report. Dr Bertucen gave his evidence in a careful and considered manner.

18. [405]

    The cross-examination regarding the above-mentioned detail regarding the relationship separation was as follows (at T 156-157):

19. [406]

    I consider it inherently unlikely that Dr Bertucen did not report accurately what he had been told by the plaintiff.

20. [407]

    The above reference to “separated from his partner (together 12 months) in mid-December 2022” (CB 67) and the reference to his “recent relationship ended” (CB 69) clearly tend to confirm that the relationship ended in December 2022. The “12 months” reference is a little odd and differs from the plaintiff’s evidence about the relationship length. CB 29[53], 57[3],[4], 58[11].

21. [408]

    Thirdly, the Clinical Risk Assessment records dated 3 January 2023 (the year is actually specified as being 2022 but that is clearly a mistake) refers to “Recent relationship breakdown – has just moved out of partner’s residence”: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 20). The reference to his “recent relationship breakdown” in context is consistent with the plaintiff’s assertion that he moved out of the residence in December 2022.

22. [409]

    Fourthly, Mr Brown submitted that it was (only) in cross-examination that it was revealed that the plaintiff was sharing expenses with Taryn: DCS [14.3]. However, the plaintiff’s affidavit did in fact disclose that whilst he stated that he had separated in April 2021 from Taryn he “remained friends” and “continued to reside at her Unit in Burleigh Waters” and “continued to pay rent and contribute to the expenses”: CB 57[3]. The plaintiff confirmed that the figures in his first affidavit (8 February 2022) for expenses included sharing of expenses with Taryn such as electricity and food. Whilst the plaintiff’s explanation was that he was simply living in a “shared house” (T 128.47-129.20), the sharing of expenses is nonetheless consistent with him being in a relationship with Taryn.

23. [410]

    Fifthly, the plaintiff’s initial affidavit disclosed a sum of the $68,000 held in the NAB savings account: CB 41. His updating affidavit explained that the sum of the $68,000 held in the NAB savings account was in fact held in a mortgage offset account in Taryn’s name: CB 60[27(i)]. The $68,000 figure was monies that he had available consequent upon the sale of his townhouse in 2017 and the plaintiff indicated that Taryn had repaid to him in early February 2023 the sum of $71,559.12 being apparently the $68,000 sum plus some additional contributions that he had made: CB 60[27(i)]. Whilst the updating affidavit corrected the error, Mr Brown suggested to the plaintiff that he was attempting to hide his relationship with Taryn: T 40.15-41.31. I consider that the plaintiff’s initial affidavit was less than frank. More specifically, it seems inherently unlikely that if the plaintiff had concluded his relationship with Taryn in April 2021 that he would have left his monies in her mortgage offset account. The fact that Taryn repaid to him those monies in early February 2023 seems to me to be more consistent with the relationship concluding in December 2022, contrary to the plaintiff’s assertions otherwise.

24. [411]

    At the time of the plaintiff’s first affidavit, he was residing in a unit at Burleigh Waters: CB 21. As at March 2023, the plaintiff was residing in a unit at Southport, Queensland: CB 57.

25. [412]

    As at the time of his updating affidavit sworn approximately three weeks prior to the hearing, the plaintiff stated:

    1. (1)

       that he was residing in a share house at Southport Queensland, the unit consisting of three bedrooms with currently four people including himself residing there and him contributing $300 per week plus contribution to utilities: CB 57[7].

    2. (2)

       the heading “Financial Circumstances of person with whom cohabitating” states “I am currently single”: CB 85 (annexure D).

    3. (3)

       after his discharge from the Currumbin Clinic in February 2023, the plaintiff says that he had been “couch surfing” with some friends whilst he tried to source more permanent living arrangements: CB 57[6]. He has been searching for rental accommodation he says over the past six months looking at small units in the Gold Coast area as well as house sharing: CB 57[7].

26. [413]

    I have referred above to the plaintiff being confronted with video footage of his movements on 18 and 19 March 2023.

27. [414]

    The footage disclosed that the plaintiff met Amanda and travelled to a destination on a camping trip, and to a seaside beach location (possibly Stradbroke Island): T 150. The plaintiff met Amanda via a dating app called “Bumble”: T 140.29.

28. [415]

    The footage relating to the first day disclosed the plaintiff and Amanda meeting on a suburban street with their cars parked adjacent to another. It shows the plaintiff taking a surfboard from the back of his vehicle and placing it on top of Amanda’s vehicle and travelling to a destination where amongst other things they set up a tent with pegs overnight. They spent the night together.

29. [416]

    On the second day, they travelled to a seaside beach location and took surfboards to the beach. The plaintiff is seen apparently waxing the surfboard and then attempting to demonstrate to Amanda some rudimentary skills of attempting to stand on a surfboard. The boards were carried to the water where there was some footage of the plaintiff attempting to catch some waves.

30. [417]

    Towards the end of the second day of the hearing, plaintiff was further cross-examined regarding the name of the lady the subject of the video footage with the plaintiff with whom he spent time on 18 and 19 March 2023. The plaintiff disclosed her name as being “Amanda”: T 137. The tenor of Mr Brown’s cross-examination was to the effect that he was in a relationship with Amanda. The plaintiff claimed that the footage disclosed “the second date”: T 137. Mr Brown asked her surname was. The plaintiff indicated that he did not know her surname: T 138.

31. [418]

    Mr Brown asked incredulously “[y]ou go away with somebody, share a swag together and you have no idea what her surname is?”. To which the plaintiff mundanely replied “[t]hat’s how dating goes these days”: T 138.

32. [419]

    Mr Brown established that the plaintiff texted Amanda from time to time: T 139. He called for the phone and wished to examine the texts.

33. [420]

    The hearing was adjourned overnight and by arrangement as between the legal representatives a report was generated using a program which report was a printout of the plaintiff’s texts with Amanda.

34. [421]

    The texts run to 74 pages in length over a period from 7 February 2023 to 26 March 2023 (the night before the hearing) and include two additional texts in the evening of the first day of the hearing. The texts became Exhibit D6.

35. [422]

    The plaintiff was cross-examined regarding a text on 26 March 2023 (the day before the hearing) in which Amanda texted “we need to make this happen. Ask next year if you can put up with me for that long”. In response to a question from Mr Brown, the plaintiff indicated that he recalled sending that text to Amanda. The actual generator report suggests that it was a text from Amanda: Exhibit D6 at page 74. In any event, Mr Brown put to the plaintiff that it demonstrated that he was in a relationship with Amanda. He denied that asserting that Amanda wanted to know what vans look like that could be bought for travel. The context of the questioning was that Mr Brown had put to the plaintiff that he was talking to Amanda about travelling around in a van (his van) by sending to her Facebook links of people travelling around in their vans together: T 151.

36. [423]

    In understanding the texts, context is important. The matter was not explored in great detail. It is not to my mind decisive evidence of any committed relationship with Amanda.

37. [424]

    The evidence of the video footage coupled with the texts suggests to me that the relationship between the plaintiff and Amanda is at least a dating relationship.

38. [425]

    There is strictly speaking no evidence that Amanda is actually cohabitating with the plaintiff. It was certainly not suggested to the plaintiff that Amanda was one of the other housemates he was sharing accommodation with. None of the video footage of the plaintiff and Amanda gave support for the proposition that they were actually cohabitating in the accommodation the plaintiff currently has.

39. [426]

    I do not find that the plaintiff is currently in a relationship with Amanda in the sense of a de facto relationship or a committed cohabiting relationship. The tenor of the video footage and texts suggests to me that the relationship between the plaintiff and Amanda is certainly dating. Overall, the impression I have is that the plaintiff has some relationship with Amanda which was a degree more developed than he was prepared to admit.

40. [427]

    I find it difficult to accept the plaintiff’s evidence in light of the video evidence and extent of the phone texting between the plaintiff and Amanda that he had no idea of Amanda’s surname.

Plaintiff’s health and capacity for work

1. [428]

   The plaintiff appears to have a local GP (I infer Dr Graeme Stokes: Exhibit D3–7 (Currumbin Clinic Documents Tab at page 2)). Additionally, the plaintiff has two treating psychiatrists, Dr Mary Emeleus and Dr Vicky Satchwell: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 2). Other than a report which was received from Dr Emeleus on the second day of the hearing in a specific context relating to the plaintiff’s competence to give evidence and capacity to instruct his solicitors, no evidence was sought to be adduced by the plaintiff from any of those health professionals. The plaintiff has a treating psychologist, Brett Addison.

2. [429]

   I enquired as to why the deceased’s other treating medical practitioners (seemingly Dr Graeme Stokes GP, Dr Mary Emeleus psychiatrist and Dr Vicky Satchwell psychiatrist) had not provided evidence: T 201-202. Mr Simpson responded by indicating that Dr Emeleus will not give expert evidence and the Dr Bertucen was approached as an independent person to prepare a report rather than one of his treating doctors: T 202.

3. [430]

   Mr Simpson indicated that there would be difficulty in getting a treating psychiatrist to come to Court and submitted that the “quality of the evidence you can get sometimes reflect the fact … of them being subpoenaed”: T 202. There was no specific evidence that any of the deceased’s treating medical practitioners (leaving aside Mr Addison) were unwilling to be subpoenaed. Whilst I do not doubt what Mr Simpson has informed me in relation to Dr Emeleus, I do not accept that the quality of evidence that might be given by any such treating psychiatrist would be affected by the fact that they had been subpoenaed. Or at least not necessarily so. There would be no reason to expect that a professional person, who attended Court and gave evidence under a subpoena, would do anything other than assist the Court and tell the truth: T 202.

4. [431]

   As at 7 January 2022, the plaintiff had current medications including Circadin and Lexapro (which appeared to be medications for his conditions of insomnia and depression/anxiety respectively), recorded in the notes as dating from 11 December 2018: Patient Health Summary from Treetops General Practice at CB 48.

5. [432]

   The plaintiff says that being a shower screen installer for the majority of his work life has taken a toll on his body physically and he has tears in both of his forearms and had surgery on his left knee from a torn meniscus and an injured right knee. He says he has daily back pain from years of carrying panels of extremely heavy glass and having to twist to manoeuvre to install the panels and that these injuries have often led to him having days off at least as at February 2022: CB 32[72].

6. [433]

   In affidavit evidence, the plaintiff indicated that he struggled with his work at Ausdrill and had a significant period of time off work between July 2022 and 2 March 2023, exhausting all of his personal leave and annual leave. He noted that he was finishing his employment with Ausdrill on 14 March 2023 as he was due to be readmitted to the Currumbin Clinic on 15 March 2023 for further inpatient treatment: CB 58-59[18].

7. [434]

   Presently, the plaintiff is on a Mental Health Plan which covers the majority of his costs associated with his appointments with Mr Addison. He indicates there is currently a small gap between the Medicare benefit and the cost of treatment which leaves him out of pocket approximately $30 for each appointment with Mr Addison: CB 59[20]. The plaintiff expressed his understanding of the position (limited under s 136 Evidence Act) to the effect that he is near to exhausting his available sessions with Mr Addison under the Mental Health Plan and had been advised by his private health insurer BUPA that appointments with psychologists and/or psychiatrists are not covered under such insurance unless they form part of an approved inpatient admission such as with the Currumbin Clinic: CB 59[20].

8. [435]

   The plaintiff, in his updating affidavit, confirmed that he continued to take regular medications. The medications he refers to being Zyban, Melatonin and Temazepam (CB 58[12]) differ from the medications referred to in the January 2022 Patient Health Summary. However, I do not regard that as being of particular significance and proceed on the basis that the plaintiff takes Zyban for his depression and Melatonin and Temazepam for his insomnia.

9. [436]

   The plaintiff says his private health insurance premium has increased as has the cost of his medication (as at 2 March 2023): CB 60[27(h)].

10. [437]

    On 25 October 2021, the plaintiff initially attended counselling with Mr Addison having been referred by Dr Torabi for assessment and treatment for depression: CB 46, 63.

11. [438]

    Mr Brown sought to be given leave to cross-examine Mr Addison. However, late notice had been given by the defendant’s solicitor for Mr Addison to attend cross-examination and I declined leave for the issue of subpoena for Mr Addison to attend to be examined without being informed of details of his availability. As it transpired the plaintiff’s solicitor was able to contact Mr Addison on the first day of the hearing however he was informed by Mr Addison that he was in hospital and unable to attend as he was extremely unwell: T 25.

12. [439]

    Mr Addison provided two reports in respect of the plaintiff. The first dated 7 December 2021 (CB 46) and the second dated 8 December 2022: CB 63.

13. [440]

    Since the plaintiff’s initial attendance on Mr Addison on 25 October 2021, he had attended 19 appointments. Mr Addison indicated in the first report that the plaintiff had presented as anxious and depressed.

14. [441]

    Mr Addison indicated that the plaintiff had described severe symptoms indicating a diagnosis of PTSD including difficulty concentrating and sleeping problems. At that stage, Mr Addison indicated that the plaintiff’s medical and psychological issues would continue to compromise his ability to work into the future with him requiring ongoing treatment and care: CB 46. Mr Addison’s second report stated that after numerous consultations the plaintiff was diagnosed with severe depression and anxiety and post-traumatic stress disorder: CB 63.

15. [442]

    Mr Addison’s second report as at 8 December 2022 painted a severe picture of the plaintiff’s then health and prognosis for the future including the following:

16. [443]

    On or about 15 December 2022, arrangements were made by Dr Satchwell to admit the plaintiff to the Currumbin Clinic, which occurred on 3 January 2023, and he remained hospitalised there until 3 February 2023: Exhibit D3-7 (Currumbin Clinic Documents Tab at pages 2, 5).

17. [444]

    The defendant tendered various Facebook records relating to the plaintiff Exhibit D3-7 (Facebook Documents Tab) which revealed various matters including:

    1. (1)

       on 2 January 2008, a picture seemingly of the plaintiff bungy jumping from a high ledge over a water location and a further picture of the plaintiff the same day enjoying the company of a number of men and women friends;

    2. (2)

       on 24 September 2008, there are pictures of the plaintiff at locations on a trip to New Zealand;

    3. (3)

       on 15 June 2012, a picture of the plaintiff lying down on a lounge poolside at a hotel or other like location in Bangkok, Thailand;

    4. (4)

       on 21 March 2014, pictures of a sold sign in front of a townhouse with a caption “It’s SOLD!!! time to find another very quickly – with Candy McMullen”;

    5. (5)

       on 26 August 2015, the picture of the plaintiff at the Empire Landmark Hotel in Vancouver, Canada with friends;

    6. (6)

       between 2-12 September 2015, pictures of the plaintiff with friends at various locations in Canada including attending a wedding;

    7. (7)

       on 15 September 2015, a picture of the plaintiff with Bean Jansens in a snow covered location with mountains in the distance and a helicopter behind them;

    8. (8)

       on Australia Day (26 January) 2016, the plaintiff with a friend Daniel Felstead (and others) and at the Gold Coast;

    9. (9)

       on 6 March 2016, a picture of the plaintiff photographed with others enjoying their company;

    10. (10)

        on 25 March 2016, a picture of the plaintiff at Inskip Point, Rainbow Beach with various friends or acquaintances;

    11. (11)

        on 30 October 2016, pictures of the plaintiff attending or enjoying a Happy Halloween party at Pavillions Palm Beach;

    12. (12)

        on 5 December 2016, a picture of the plaintiff enjoying the company of two women;

    13. (13)

        on 6 February 2017, a Client Feedback Form responding favourably with feedback regarding the plaintiff’s performance as a trainer with the Human Performance Centre; and

    14. (14)

        on 9 December 2017, pictures of the plaintiff at Discovery Parks Byron Bay with friends (the Jansens) and others.

18. [445]

    Beau Jansens is described by the plaintiff as being a friend who works at the Currumbin Clinic: T 109.4-11.

19. [446]

    The Facebook records relating to the plaintiff over the period from June 2018 to October 2021 which, in the opening written submissions of Mr Simpson (POS [64]), were said to coincide with a marked deterioration in the plaintiff’s mental health reveal the following (Exhibit D3-7 (Facebook Documents Tab)):

    1. (1)

       on 30 June 2018, a picture of the plaintiff onboard an aircraft at Gold Coast Airport about to travel to Sydney for his son’s 18th birthday;

    2. (2)

       on 12 July 2018, a picture of the plaintiff out enjoying the company of two male friends (the defendant contending that this was occurring during the period or just after his stay at the Currumbin Clinic in 2018 whilst the deceased was recovering in hospital);

    3. (3)

       on 5 August 2018, the plaintiff standing on a rock adjacent to the seashore line at Burleigh Point;

    4. (4)

       on 22 September 2018, the plaintiff enjoying a night jar happy hour with a friend;

    5. (5)

       on 30 September 2018, a picture of the plaintiff disc jockeying at night;

    6. (6)

       on 11 November 2018, pictures of the plaintiff enjoying a seafood meal and drinks with several women and other friends including out on a speed boat;

    7. (7)

       between 1-10 February 2019, pictures of the plaintiff enjoying resort life at Bali Indonesia;

    8. (8)

       on 27 March 2019, a picture of a map recording various travel destinations around the Mediterranean;

    9. (9)

       on 8 May 2019, a picture of the plaintiff at a Norwegian Spirit gym;

    10. (10)

        on 13 May 2019, a picture of the view from the plaintiff’s room at Kythnos, Kikladhes, Greece;

    11. (11)

        on 15 May 2019, a picture of the plaintiff at a seaside location in Valletta, Malta;

    12. (12)

        on 16 May 2019, a picture of the plaintiff at the ruins of Pompeii, Italy;

    13. (13)

        on 5 December 2019, a picture of the plaintiff at a beach carrying a surfboard with a wetsuit rolled down to his waist;

    14. (14)

        on 28 June 2020, a picture of the plaintiff with friends the Jansens at Sea World Resort – Gold Coast;

    15. (15)

        on 5 December 2020, a birthday message posted by the plaintiff for Taryn;

    16. (16)

        on 1 and 3 March 2021, a picture of a new residence occupied by the plaintiff and Taryn with pictures of the plaintiff undertaking sealing or plastering work on a foldout ladder; and

    17. (17)

        on 13 October 2021, a sunrise picture of the beach with a surfboard and another picture of the plaintiff in board shorts with an unidentified female.

20. [447]

    The plaintiff was cross-examined regarding the above-mentioned video footage. He disclaimed being able to surf. He stated: “I can’t surf” and “I’m no good at it. I try, I’ve tried surfing”: T 98.

21. [448]

    A little later when the fact that the plaintiff has two surfboards in the back of his car was raised, the plaintiff, after being somewhat interrupted, eventually stated (T 99.23-24):

22. [449]

    The Currumbin Clinic documents (Exhibit D3-7 (Currumbin Clinic Documents Tab)) included material disclosing the following:

    1. (1)

       on 15 December 2022, a pre-inpatient admission assessment screening in which Dr Satchwell indicated that the plaintiff had a risk of suicide (page 5) albeit that was qualified as being a low suicide risk: page 8;

    2. (2)

       on 3 January 2023, an initial psychiatric assessment by Dr Satchwell with the principal diagnosis of anxiety: page 8;

    3. (3)

       that the plaintiff had been admitted under the care of Dr Satchwell and that Dr Emeleus has taken over when Dr Satchwell had gone on leave: page 2;

    4. (4)

       that the plaintiff had presented with “increased anxiety including panic attacks, anxious ruminations, not feeling confident, some misophonia, and difficulty completing tasks. He had trouble with inattention and his memory was poor. He also made a query about whether he might have undiagnosed ADHD”: page 2. The summary also states that “[h]e had symptoms consistent with PTSD symptoms including nightmares, hypervigilance around judgment or harm from other people, and intrusive memories of early life experiences in his family and more recent family events”: page 2;

    5. (5)

       on 7, 8, 15, 21, 22 and 29 January 2023, there were revised risk assessments: pages 9-12. There were various other assessments and detailed progress notes covering the period from early January 2023 to 3 February 2023; and

    6. (6)

       on 3 February 2023, the plaintiff was discharged, and a medical history summary prepared: pages 2, 121-122.

23. [450]

    Misophonia is a neuropsychiatric disorder characterised by negative responses to specific sounds, soft or loud: Macquarie Dictionary, online ed.

24. [451]

    On 27 January 2023, during the latter part of the time that the plaintiff was at the clinic, the plaintiff’s solicitors arranged for a consulting psychiatrist (Dr Jeff Bertucen) to review the plaintiff which he did by video consultation: CB 66-67.

25. [452]

    On 30 January 2023, Dr Bertucen provided a report: CB 66. The letter of instruction to Dr Bertucen dated 12 January 2023 was tendered and became Exhibit D8.

26. [453]

    During the consultation, Dr Bertucen took a somewhat detailed history from the plaintiff dating from his mid-teens.

27. [454]

    Without attempting to be exhaustive it may be noted that the history given by the plaintiff to Dr Bertucen recorded that:

    1. (1)

       from about 2007, the plaintiff first received regular mental health interventions including sessions with a psychologist, GP review and pharmacology;

    2. (2)

       in approximately 2008, after breaking up with a girlfriend the plaintiff relapsed into regular alcohol and substance use and his employment history became discontinuous;

    3. (3)

       over the last 10 years, the plaintiff reported a sequence of disrupted relationships saying “as soon as they get too close, I can’t handle it”, social isolation (with few close friends and confidants), and no recreational outlets;

    4. (4)

       since 2018, the plaintiff’s mental state has remained predominantly depressed;

    5. (5)

       over the last year (January 2022–January 2023) the plaintiff has regularly attended upon Mr Addison and his mood has remained “dark” and he had been recently unable to maintain focus and concentration at work, once again sleeping poorly, experiencing anhedonia, self-neglect, demotivation as regards previous activities such as surfing and exercise, reduced libido and social withdrawal; and

    6. (6)

       in the last six months (i.e. since July 2022), the plaintiff had used stimulants occasionally and in November-December 2022 drank heavily: CB 67-69.

28. [455]

    Dr Bertucen recorded that the plaintiff’s negative cognitions had unfortunately been aggravated by the outcome of his mother’s Will indicating that he had been informed (at CB 69):

29. [456]

    Dr Bertucen noted that the death of the plaintiff’s father had further compounded his despair and sense of isolation and abandonment: CB 69.

30. [457]

    Dr Bertucen recorded that on the day of the interview he had administered some testing of the plaintiff by use of questioning involving certain responses from the plaintiff and also observations: T 162-164.

31. [458]

    According to the Montgomery-Asberg Depression Rating Scale, the plaintiff recorded a score of 34 which was clarified in cross-examination to be a score out of 60 sitting just outside of the moderate depression zone and into the top part of the severe band, which Dr Bertucen described as a “kind of a, a fuzzy zone between upper, moderate and low severe depression”: T 163-164. The testing involves a ten or eleven question process in which the patient reports responses by reference to their subjective mental state within 4 to 6 weeks prior to the admission with a mean score and two of the questions are filled in by the clinician based on observation: T 162.

32. [459]

    Without intending to be exhaustive, I note that Dr Bertucen expressed the following opinions:

    1. (1)

       the plaintiff’s psychological conditions have had a number of adverse effects on aspects of his global functioning throughout the last 30 years including impacts of chronic alcohol and polysubstance use disorder, difficulties establishing trust in intimate relationships with his various partners, a degree of social withdrawal and mistrust of others in periods of profound low self-worth and nihilistic/suicidal ideation;

    2. (2)

       the plaintiff’s depression and anxiety/substance condition have also at times had significant impacts on his basic activities of daily living such as regular self-care and hygiene, ability to maintain domestic order and regularity of diet/exercise;

    3. (3)

       the impact of the plaintiff’s major depressive/PTSD/substance conditions on his previous employment and training opportunities have also been markedly significant and disruptive as evidenced by his history throughout his 20s and 30s (stating) he has had lengthy periods of incapacity for work and not only (due) to his depressed and anxious mood, but also the effects of alcohol and substance abuse;

    4. (4)

       the plaintiff’s prognosis is poor given the long-standing and fluctuating history of mental illness and the propensity for secondary self-medication with alcohol and substances – nonetheless, Dr Bertucen would not recommend any actual restrictions for employment per se on the proviso that the plaintiff engaged in regular psychological treatments and remained abstinent from alcohol and substances;

    5. (5)

       the plaintiff will continue to suffer disruptions of employment and loss of employment opportunities due to his chronic mood disorder and substance dependence issue; and

    6. (6)

       given the plaintiff’s fragile and fluctuating mental state over the last four years, it is likely, on the balance of probabilities, that he will require further inpatient admissions for the treatment of depressed mood, anxiety and substance use disorders over the next 12 to 36 months: CB 70-71.

33. [460]

    Dr Bertucen was cross-examined by Ms Coventry for the defendant: T 156. I have already referred to the fact that whilst Dr Bertucen indicated that he had not retained any records of his consultation with the plaintiff, his process being to write or dictate his report quite quickly after the consultation whilst the matters are fresh in his memory: T 156.

34. [461]

    Dr Bertucen was asked regarding a statement under the heading “Background” in his report relating to the plaintiff being employed by Ausdrill. He indicated that he was conveying that at the time of the interview the plaintiff was not psychologically capable of returning to work, but the plaintiff did not give him any indication as to his motivation to return to work at some future stage or otherwise: T 157. Dr Bertucen did not regard the plaintiff’s prognosis for future work as dire and did not believe that the plaintiff was likely to be chronically incapacitated for work: T 159. In particular, he did not consider that there were any inherent psychological restrictions or incapacities with regard to employment for the plaintiff and that if he remained engaged with mental health treatments and abstinent from alcohol and substances that is no reason why he could not work: T 159.

35. [462]

    Nonetheless, the plaintiff presented to Dr Bertucen as an individual who may always have a potential or predisposition for disruptions of his working life because of his (health) conditions (T 159), specifically admissions to a facility being necessitated by fluctuations in the plaintiff’s mood and the compounding factor of his alcohol and substance use history: T 160.

36. [463]

    Dr Bertucen was asked as to whether after the plaintiff’s discharge from the Currumbin Clinic (on 3 February 2023) assumptions that the plaintiff had been active on a dating app called “Bumble” and that he had been on a number of dates camping, surfing and meeting up with friends were inconsistent with his presentation to Dr Bertucen during the consultation on 27 January 2023. Dr Bertucen indicated that the fact that the plaintiff may have benefited from the admission to the clinic and received treatment and after his discharge went on to seek relationships by the above-mentioned means is not inconsistent with someone recovering from an episode of depression: T 160.

37. [464]

    Dr Bertucen was questioned regarding a number of entries in the clinic records (see Exhibit D3-7 (Currumbin Clinic Documents Tab)) suggestive that the plaintiff was at low risk of suicide and self-harm and of good mood. He indicated that (sometimes) nursing notes whilst valuable can often be superficial and do not tell the whole story. It was possible for people to still be depressed in hospital and yet at the same time relieved to be in hospital so that their interior mental state can sometimes be different from their external effect: T 162.

38. [465]

    Finally, Dr Bertucen was asked as to whether once the plaintiff’s involvement in the proceedings was resolved that stressor would be removed. Dr Bertucen’s response was that it depends upon the outcome such that the stress associated with the engagement in the process may be removed but if the outcome was unfavourable to the plaintiff and he did not receive a satisfactory result (presumably from his perspective) there would still probably be some residual stress that he had: T 164.

39. [466]

    The defendant tended various documents subpoenaed from Ausdrill: Exhibit D3-7 (Ausdrill Documents Tab).

40. [467]

    Relevantly, the materials disclosed the following:

    1. (1)

       on 27 June 2022, the plaintiff underwent a Health Assessment Report by an Appointed Medical Adviser, Dr Michael Boissezon of Harbour Road Medical, in respect of his proposed work as a Drillers Offsider. He was assessed as being fit to undertake the proposed position. The plaintiff underwent drug testing on that date and returned negative screening results for cannabis, cocaine, amphetamines, opiates, benzodiazepines and ethanol. Generally speaking, his body mechanics, lifting ability and cardiovascular results reflected that he performed well with no concerns;

    2. (2)

       an online form completed by the plaintiff in June-July 2022 described the plaintiff’s marital status as “Defacto” and “Taryn Carpenter” (“Partner”) as being the relevant person for personal and emergency contact details;

    3. (3)

       on 11 July 2022, Dr Robin Alexander (of the Myhealth Treetops Medical Centre at Burleigh Waters) provided a certificate in respect of the plaintiff indicating that he took as medication Circadin 2mg at night and would be taking the medication indefinitely. However, Dr Alexander certified that the medication will not impair his work performance;

    4. (4)

       on 12 July 2022, the plaintiff was originally hired;

    5. (5)

       on 16 January 2023, Ausdrill offered the plaintiff “Conditions of Employment” in the role of “Mineworker Induction Level 2” (offer). The offer was for permanent full-time employment on an average of 35 ordinary hours per week plus reasonable additional hours to perform work at various sites across Australia with an initial project roster being seven days on and seven days off. It made reference to an original hire date of 12 July 2022. However, this was a fresh proposal of employment with full pay period to commence on or after 1 February 2023;

    6. (6)

       on 17 January 2023, the plaintiff signed the offer. I note that this occurred whilst he was admitted at the Currumbin Clinic. The progress notes from the clinic indicate that the plaintiff reported having a reasonable day on 17 January 2023: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 76); and

    7. (7)

       on 16 March 2023, the plaintiff sent an email to Ausdrill giving notice of his resignation effective on that date “due to stress and personal reasons”.

41. [468]

    The plaintiff had provided Ausdrill with a resume which, inter alia, disclosed the following:

42. [469]

    One of the two referees provided in relation to the resume was Leanne McIntosh (Ms McIntosh) from Spindrift on the Beach. Ms McIntosh is Taryn’s aunt and the hotel manager of that establishment: T 106.

43. [470]

    The resume indicated that the plaintiff’s working history included the following:

    1. (1)

       Koppman Constructions Pty Ltd (1998-2001).

    2. (2)

       Claytons Shower Screens (2001-2004).

    3. (3)

       Coastal Abundance (2004-2018).

    4. (4)

       Ryan’s Handyman Services (2019-current).

44. [471]

    A reference check form which appears to have been sourced from Ms McIntosh in her capacity as hotel manager of Spindrift on the Beach indicated that he had left that employment as he was looking for more work, but that he was honest, reliable and easy to get along with and his communications excellent, that all of his work was of a high standard and that he was a good worker whom Ms McIntosh would re-employ. The check recorded “Excellent” ratings in respect of the plaintiff in the areas of attendance and reliability, presentation, attitude toward safety, timekeeping and attendance and ability to cope with stress and pressure.

45. [472]

    Mr Brown cross-examined the plaintiff directed to establishing whether the plaintiff was engaging in work or perhaps his capacity for work.

46. [473]

    On 16 February 2023, the plaintiff texted Amanda stating “I’ve been working since early this morning doing some handyman jobs”: Exhibit D6 at page 22.

47. [474]

    On 21 February 2023, the plaintiff texted Amanda stating, “Looks like I’m about to jump ship from this job too” and “Pun itended [sic]”. A few texts later, Amanda texted “What job are you off to do” to which the plaintiff responded “Met a guy on the weekend. A lot more money for less work” and in response to a further text stated “Driving gas rigs and b doubles I think. I have to talk to them tomorrow”. Amanda responded with some excitement congratulating him “Well done” to which the plaintiff responded “I havnt [sic] got anything yet. I’m keen for something new though”: Exhibit D6 at pages 30-31. The plaintiff tried to play down the tenor of the texts asserting that he was drunk on that day and was trying to impress Amanda: T 149. He asserted that she had told him that she had met a guy that seemed really normal and then when she found out that he was super depressed and “just really sucked the life out of her” he did not want Amanda to know that he felt the same: T 149. I accept that the plaintiff had a discussion with “a guy” about a job with “a lot more money for less work” and reject any suggestion that the texting was other than accurate for the purpose of impressing Amanda.

48. [475]

    Mr Brown put to the plaintiff that the texts proved that the reason he left Ausdrill was that he had another job lined up after the Court case is over. He denied that. Mr Brown also put that it demonstrated that the plaintiff was quite content to continue working in many forms of capacity including truck driving to which the plaintiff indicated that if he could fix “what’s wrong with me” he would work: T 150.

49. [476]

    The plaintiff acknowledged that he had a HR licence but denied that that would enable him to drive B-doubles as for that he needed an MC license: T 150.

50. [477]

    I have referred above to Mr Brown’s submission that the timing of the plaintiff’s termination of employment with Ausdrill and admission to the Currumbin Clinic “seem[s] contrived”: DCS [14.7].

51. [478]

    Mr Brown was also somewhat scathing regarding the plaintiff’s evidence as to his physical illness asserting (DCS [14.15]) that “the plaintiff’s flagrant attempts to advance his physical illness are exaggeration and motivated to seek to advance a case of contingencies” referring to the plaintiff’s affidavit evidence regarding daily back pain (CB 32[72]) and contrasting this with his evidence as follows (T 97.35-98.2):

52. [479]

    Mr Brown further submitted that the plaintiff’s evidence regarding his working abilities and injuries was self-serving and should be rejected: DCS [41], [64]-[66].

53. [480]

    Mr Brown accepted that the plaintiff has “some mental health conditions” referring to the fact that the plaintiff was diagnosed with generalised anxiety disorder and complex post-traumatic stress disorder, but he disputes the nature and extent of these conditions and their impact upon the plaintiff’s life including his likely future employment. He reiterated the submission that the plaintiff has exaggerated the impact of his mental health conditions to try to bolster his claim for provision out of the deceased’s estate: DCS [42].

54. [481]

    Mr Brown pointed to materials suggestive that the plaintiff was not admitted in January 2023 to the Currumbin Clinic because he was at risk of self-harm or suicide but to help him manage his mental health issues before they escalated or deteriorated: DCS [44]. He referred to the plaintiff’s understanding of his admission in a Collaborative Care Plan document signed by the plaintiff on 3 January 2023 stating “Things can’t control. Realise may need R/V re diagnosis. Lots “stuff” going on “in my life” wants admission before escalates” (Exhibit D3-7 (Currumbin Clinic documents Tab at page 26)): DCS [47].

55. [482]

    Mr Brown provided a detailed analysis of the progress notes submitting that:

    1. (1)

       the Court should reject the plaintiff’s evidence and Mr Addison’s evidence that the plaintiff required admission to Currumbin Clinic because he was at high risk of suicide;

    2. (2)

       the records are consistent with the plaintiff having during the stay a “good”, “great”, “fair” and “OK” mood;

    3. (3)

       the plaintiff was settled and appeared to sleep well overnight; and

    4. (4)

       whilst the records are consistent with some mental health issues particularly anxiety, they do not demonstrate that the plaintiff’s issues were debilitating and nor do they demonstrate that the plaintiff’s sleep was generally disturbed: DCS [48]-[56].

56. [483]

    Mr Simpson submitted that the plaintiff’s working history discloses that he has continuously attempted to work and has done so successfully for various periods whilst struggling with his mental health. However, he says that there has been a marked deterioration from about 2018: POS [64].

57. [484]

    In his written opening, Mr Simpson submitted that the reports of Mr Addison and Dr Bertucen were to the effect that the plaintiff had limited or no earning capacity due to his mental health. He further submitted that the physical toll that the type of labour in the plaintiff’s jobs gave doubtful capacity for him to work: POS [65]-[66].

58. [485]

    However, in final submissions, Mr Simpson submitted that I should find that the plaintiff is not incapacitated for work and that I should essentially adopt the assessment of Dr Bertucen, namely, that there are a number of aspects to the plaintiff’s condition which would be likely to periodically interfere with his work (T 159): T 201.

59. [486]

    Mr Simpson rejected the suggestion that the plaintiff’s latest admission to the Currumbin Clinic was some sort of Machiavellian ruse to deceive the Court regarding the true status of his mental health issues: T 202.

60. [487]

    Further, he submitted that the suggestion that the plaintiff gave up his employment in order to deceive the Court that he was unable to work should be rejected: T 202.

61. [488]

    Mr Simpson submitted that the plaintiff is periodically inhibited from working: T 203.

62. [489]

    I find that the plaintiff’s evidence regarding daily back pain appears to me to be overstated, in light of the Ausdrill documents I have referred to above coupled with the Facebook records and the video footage. I accept that the plaintiff might have from time to time some minor physical ailments which might occasionally inhibit his ability to work.

63. [490]

    The plaintiff has had a troubled mental health history. He has attempted suicide on a number of occasions including when he was 17-18 in 1994-1995 (CB 23-24[19], 68, 128[21], 356) and when he was 26-27 in 2003-2004 (CB 25[30]).

64. [491]

    He has had a long-standing history of depression and anxiety beginning from his mid-teens: CB 67.

65. [492]

    Whilst the plaintiff no longer has a forklift license, he still has a white card (a safety induction to the construction industry), a Certificate IV for Personal Training, and a Certificate III in Nutrition: T 109.13-47.

66. [493]

    I do not find it necessary to make a detailed analysis of the plaintiff’s evidence regarding his admission to the Currumbin Clinic in January 2023. I consider that the summary of Dr Emeleus as to the reason for the plaintiff’s admission was accurate: Exhibit D3-7 (Currumbin Clinic Documents Tab at page 2). It does not refer to suicide as distinct from anxiety. Further, the materials regarding the revised risk assessment noted above all suggest that the plaintiff was at a low risk of suicide.

67. [494]

    Mr Brown submitted that the history which the plaintiff provided to Dr Bertucen is in some respects quite inaccurate: DCS [63]. I accept that is the case. I accept that the plaintiff has had a sequence of disrupted relationships (CB 69). I do not accept that the plaintiff over the last 10 years has suffered from “social isolation (with few close friends and confidants), and no recreational outlets”: CB 69. The Facebook materials suggest a quite different story with the plaintiff having little difficulty in socialising, travelling and enjoying recreational activities.

68. [495]

    I do not find it necessary to make a finding as to whether the plaintiff can surf or not. I find that the Facebook materials (including on 5 December 2019, a picture of the plaintiff at a beach carrying a surfboard with a wetsuit rolled down to his waist and on 13 October 2021, a sunrise picture of the beach with a surfboard and another picture of the plaintiff in board shorts with an unidentified female) coupled with the fact that the plaintiff has two surfboards in the back of his van on 18 March 2023 show that the plaintiff is well able to find enjoyment and relaxation by taking a surfboard to a beach location and entering the water irrespective of his ability. The plaintiff did not appear to be inhibited by back pain or other physical ailments in engaging in that recreation.

69. [496]

    I do not accept that the plaintiff is incapacitated for work. I consider that the submission that the plaintiff’s mental health might periodically interfere with his capacity for employment has some force. However, I stop short of doing as Mr Simpson suggests and essentially adopting the assessment of Dr Bertucen. Dr Bertucen’s assessment regarding the plaintiff was made on the basis of the plaintiff’s recital of history to him coupled with the testing as described by Dr Bertucen for the Montgomery-Asberg Depression Rating Scale.

70. [497]

    I do not regard the plaintiff’s prognosis as being as poor as Dr Bertucen suggested. I do not accept that the plaintiff’s mental health is as chronically debilitating as would generally preclude him being engaged in employment.

71. [498]

    I find that the plaintiff would generally be able to hold down employment albeit that there may be some small periods, not extensive, in any given year in which he is unable to work.

72. [499]

    Even if the plaintiff were employed between jobs, he has some demonstrated basis of obtaining ad hoc employment doing some handyman jobs even as recently as 16 February 2023: Exhibit D6 at page 22.

The trust claim

1. [500]

   Mr Brown, on behalf of the defendant, made submissions in respect of the cross-claim both in the pre-hearing written submissions and the concluding submissions.

2. [501]

   As noted above, the cross-claim ultimately sought a declaration that the Murwillumbah property was held on trust for the cross-claimant.

3. [502]

   The primary case advanced by the pleadings is apparently one of proprietary estoppel being essentially that there was an oral Representation and Continued Representation made by the deceased to the defendant in or about 2003, to the effect that if there was a sharing of expenses by the defendant the deceased would leave her real property to the defendant upon her death.

4. [503]

   An alternative case is advanced to support the trust claim. The pleading per se does not make it entirely clear which jurisdictional basis supports the claim of a trust. There is an alternative claim in the cross-claim which refers at least at one point to a “common intention”: CB 12[15].

5. [504]

   Because there are key differences in the elements of the jurisdictional basis which is said to ground a constructive trust it is important to plead clearly the elements for a constructive trust on which a claimant relies: Awad v Awad (No 2) [2020] NSWSC 25 at [84] per Walton J. In Jacobsen v Jacobsen [2017] NSWSC 1590, Ward CJ in Eq (as the President then was) emphasised this (at [109]):

6. [505]

   The DOS suggest an estoppel basis to support the trust (DOS [61]-[62]) and refer to a form of common intention or “common enterprise” constructive trust said to fall “within the principles stated in Baumgartner v Baumgartner” (1987) 164 CLR 137; [1987] HCA 59 (Baumgartner) (which I will refer to as a “joint endeavour constructive trust” for the avoidance of confusion) citing Craig v Silverbrook [2013] NSWSC 1687 (Craig v Silverbrook) at [104]-[106] per Sackar J and Shepherd v Doolan [2005] NSWSC 42 (Shepherd v Doolan) at [35]-[38] per White J (as his Honour then was).

7. [506]

   The DCS additionally referred to the decision of Ward CJ in Eq (as her Honour then was) in Bassett v Cameron [2021] NSWSC 207 (Bassett v Cameron) at [564]: DCS [33]. Mr Brown referred to authorities or parts of authorities dealing with common intention constructive trusts and joint endeavour constructive trusts interchangeably. It is important to distinguish between the two. While a “common intention” was articulated in the cross-claim, a joint endeavour constructive trust was not clear on the face of the pleadings.

8. [507]

   Mr Brown referred to an analysis on a micro level and a macro level: DOS [42]-[43].

9. [508]

   Mr Brown in the written opening submissions indicated that a complete analysis of the bank statements produced under subpoena for decades would be provided in closing submissions (it seemingly being not available at the time of the DOS): DOS [14.5].

10. [509]

    Mr Brown did, however, provide submissions based on what was said to be the defendant’s contributions of 72% of her income over a six-month period spanning 9 July 2022 to 8 January 2021 (reference period) transferred to the deceased’s account. The reference period was chosen because it coincided with available bank statements for one of the deceased’s accounts being Westpac account ending xx4510: DOS [14.5]-[14.6], [26]-[27].

11. [510]

    The submissions provided detailed calculations supporting both the micro level analysis (DOS [29]-[42]) and macro level analysis (DOS [43]-[45]) during this so-called reference period.

12. [511]

    Mr Brown submitted that his analysis demonstrated that:

    1. (1)

       it was absolutely impossible for the deceased to pay the mortgages over the last two decades without the defendant’s source of income and that there would not be an estate without the defendant’s significant and substantial contributions to the estate: DOS [47]-[48]; and

    2. (2)

       the “bank accounts bear out that which is obvious the defendant and the deceased had a common intention to pool their resource[s]”: DOS [66].

13. [512]

    In his concluding submissions, Mr Brown alluded to comments that I had made in attempting to understand how the trust claim was formulated that one way of looking at it, assuming a trust was made out, is that the outcome is that a half‑share in the property is beneficially the defendant’s and the deceased gifts the other half share, her half‑share, to the defendant. Mr Brown accepted that such a finding was open: T 27.10-15.

14. [513]

    Nonetheless, he urged a finding that the trust was over the entirety of the property such that the whole of the property was held on trust for the defendant: DCS [32].

15. [514]

    Mr Brown seemingly accepted that the representations on which the trust claim was based between the parties were limited: DCS [33].

16. [515]

    Mr Simpson submitted that the cross-claim in relation to the trust must fail both as a matter of law and as a matter of evidence.

17. [516]

    First, Mr Simpson submitted that the cross-claim as pleaded is that the deceased made an oral representation that she would leave the defendant all her real property on her death (CB 11[3]). He submitted that there is no evidence from the defendant that that was ever said by the deceased: T 196.

18. [517]

    Secondly, Mr Simpson submitted that the pleading that the deceased orally represented to the defendant that if the defendant paid the sum of the $25,000 inheritance received from her from Kevin’s estate onto the mortgage that she would leave her estate to the defendant was not made out. It is pleaded as a Continued Representation however he submitted that there was no evidence that any such oral representation was made: T 196-197.

19. [518]

    Thirdly, Mr Simpson submitted that the alternative claim of a common intention constructive trust (CB 12[15]) was not made out as there was nothing said from 2003 as between the deceased and the defendant that they would live together and buy property, share expenses, and that on the deceased’s death the defendant would receive the whole of the deceased’s real property and estate nor was there any evidence which justified that allegation or otherwise proved it: T 197.

20. [519]

    Fourthly, Mr Simpson submitted that the amount of $250 per week which the defendant says she gave to the deceased and Ron for household expenses for the period 1996 to 1999 (which he described as “board”) was not referable as payments towards the acquisition of any equitable interest or pursuant to a testamentary contract, as it predated the arrangements alleged to have begun in 2003: T 197.

21. [520]

    Fifthly, Mr Simpson submitted that the handwritten letters from the deceased dated 18 August 2020 and 23 September 2020 should be given little evidentiary weight as the deceased did not deliver them to a solicitor or even to the defendant, rather, they were simply found by the defendant amongst the deceased’s papers: T 197. Mr Simpson did not dispute that the deceased had written the letters. Rather, what he disputed was the degree of formality to which the deceased wished to attach to them. In particular, he submitted that they were written shortly before the deceased passed away and whilst they gave reasons as to why she had done what she had done with her will, they did not refer to any promise as alleged by the defendant in her trust claim and specifically did not assert that the deceased was leaving the property to the defendant because she had promised to do so in 2003 or at any time: T 198.

22. [521]

    Sixthly, Mr Simpson submitted that the contents of the deceased’s prior Wills do not support the claimed trust as it was not until the 2017 Will that the deceased actually made a Will that left the property to the defendant: T 198. Specifically, he submitted that for 14 years of the alleged arrangement (2003-2017) the deceased did not make a Will consistent with her promise. He submitted that the reason she made the 2017 Will was for the reasons she had put in her handwritten note: T 198.

23. [522]

    Seventhly, Mr Simpson submitted that the claim that the defendant used the inheritance sum of $25,000 to pay off the mortgage did not support the trust claim as an amount of approximately three quarters of that sum being $18,713 was provided by the deceased to the defendant for the purchase of a car, which the defendant agreed was not her own money and had come from the deceased: T 198. Mr Simpson submitted that at that time the defendant was earning about $200 a week on Newstart payments and that $18,000 is about one and a half years of such payments: T 198.

24. [523]

    Eighthly, Mr Simpson submitted that the total amount or value of money and labour contributed has not been particularised: POS [5]. In any event, he submitted that the plaintiff had limited income to contribute to the acquisition and maintenance of the deceased’s real property acquisitions noting that on the bank accounts provided by the defendant her income varied from $398.80 a fortnight in 2003, to $1,000.85 a fortnight by 2021: POS [39a].

25. [524]

    Ninthly, Mr Simpson submitted that the defendant’s claims to have contributed physical labour towards the improvement of the properties is inconsistent with “the allegation that she is wholly unfit for work”: POS [39b], [68], T 199. However, I note that Mr Simpson did not cross-examine the defendant to challenge the alleged inconsistency in respect of the work she claimed that she had done towards improvement of the properties nor regarding her ability for work.

26. [525]

    First, Mr Simpson submitted that as a matter of law even if the representations were made as alleged there is no detriment that the defendant has suffered as a result of her reliance upon any such arrangement: POS [39c], T 199.

27. [526]

    Specifically, he submits (POS [39c&d], T 199) that:

    1. (1)

       the defendant is a single person who was apparently unfit for work and wholly dependent on the Newstart Allowance;

    2. (2)

       the defendant alleged no alternative course of action that was open to her (as being something that she would have pursued or otherwise engaged in) as being an alternative properly open to her and that it was difficult to conceive of any such alternative;

    3. (3)

       “in a proprietary estoppel claim such as this” the defendant is required to establish that she would have acted differently in the absence of the relevant encouragement citing Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 (Q v E Co) at [88] per Meagher JA (Leeming and Payne JJA agreeing);

    4. (4)

       in a proprietary estoppel claim, the detriment suffered by the claimant must be “sufficiently substantial” to bind the conscience of the party said to be estopped: Q v E Co at [127] per Meagher JA (Leeming and Payne JJA agreeing);

    5. (5)

       in the assessment of detriment, it is permissible to have regard to benefits received by the party claiming the estoppel by reason of their reliance, albeit that he acknowledged that there was a dispute as to whether it is an independent consideration or to be balanced against the detriment; and

    6. (6)

       either way the matter is considered (whether a countervailing benefit as an independent consideration or balanced against detriment) the defendant received a benefit living in comfortable accommodation with a loved family member apparently rent-free and, at least until the deceased became unwell, the deceased provided significant care for the defendant and under such arrangement was relieved of paying the sum of $250 per week (which she had previously paid as “board”).

28. [527]

    Secondly, Mr Simpson submitted that no trust should be imposed because (if, contrary to his other submissions, the Court were to find that a promise had been made) the deceased had done exactly what she had promised to do: POS [40], T 200.

29. [528]

    Thirdly, Mr Simpson submitted that the effect of the alleged promise is not to create a trust over the property effective on the deceased’s death. The property still passes to the defendant under the Will, on due administration of the estate, and is subject to a claim under Ch 3 of the Succession Act, citing Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 (Barns v Barns) at [115] per Gummow and Hayne JJ.

30. [529]

    I considered the principles of estoppel and the differences between proprietary estoppel and promissory estoppel as well as principles regarding reliance in Shymko v Lach [2022] NSWSC 1096 (Shymko v Lach) at [550]-[572].

31. [530]

    Sometimes, the principles with respect to common intention constructive trusts and joint endeavour constructive trusts have been conflated and cases concerning one cited as authorities concerning the other. Professor Ying Liew has observed that a minority of cases conflate the two doctrines, by citing Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 79 (Muschinski) as authority for the common intention constructive trust doctrine: Ying Khai Liew, ‘Constructive Trusts and Discretion in Australia: Taking Stock’ (2021) 44(3) Melbourne University Law Review 963, 973 fn 48 citing e.g. McDonald v Dunscombe [2018] VSC 283 at [181] per McMillan J; Lu v Yu [2019] VSC 499 at [8] per Derham AsJ. Professor Liew explains that this conflation is per incuriam as Deane J in Muschinski developed the joint endeavour doctrine “in order to “consider whether there is any narrower and more specific basis on which, independently of the actual intention of the parties’, the plaintiff was entitled to relief”: at 973 fn 48 citing Muschinski at 617 (emphasis added).

32. [531]

    The distinctiveness of both doctrines should be recognised, lest important differences between the classes of cases to which they apply become blurred. That is not to say that arguments regarding the applicability of both doctrines will not arise in the same case (indeed, they are commonly argued in the same case: see e.g. Jemmark Pty Ltd v 10 Egan Street Pty Ltd [2022] NSWSC 865 (Jemmark v 10 Egan Street) at [68]-[80] per Parker J), but that the doctrines should be considered separately, as different classes of case in which a constructive trust may arise: Jacobsen v Jacobsen at [109]; Shepherd v Doolan at [31]-[32].

33. [532]

    A crucial distinction between the two classes of case is that the common intention constructive trust turns on the actual intentions of the parties, unlike the joint endeavour constructive trust (see Ying Khai Liew, ‘Constructive Trusts and Discretion in Australia: Taking Stock’ at 973): Muschinski at 617 per Deane J; Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 (Bijkerk Investments) at [117] per Leeming JA; Peter Young, Clyde Croft and Megan Smith, On Equity (2009, Thomson Reuters) at 445.

34. [533]

    Noting my comments above regarding the way the trust claim was pleaded (in a manner more closely resembling a common intention constructive trust than a joint endeavour constructive trust), I will consider the principles with respect to each class of case in turn.

35. [534]

    The common intention constructive trust contains striking similarities with the doctrine of proprietary estoppel. Indeed, the doctrine has been criticised on this ground, to the point where the continued existence of this class of constructive trust has been called into question. In Jemmark v 10 Egan Street, Parker J noted doubts raised about the doctrine by Leeming JA (at [69]):

36. [535]

    In the most recent Court of Appeal decision touching on common intention constructive trusts (Galati v Deans [2023] NSWCA 13 (Galati v Deans)), White JA said at [57]-[58]:

37. [536]

    In the same case Basten AJA stated (footnotes omitted) at [149]:

38. [537]

    I acknowledge that Basten AJA in Galati v Deans concluded that the property in question was held on resulting trust: at [146]-[147]. Macfarlan JA, while noting that the claimant’s entitlement to the property in question “may arguably be founded on common intention constructive trust”, preferred Basten AJA’s conclusion that it arose out of a resulting trust and agreed with Basten AJA’s reasons generally: at [1].

39. [538]

    As noted by White JA in Galati v Deans (at [53]), a common intention constructive trust arises:

40. [539]

    The intention to be established need not be that the parties have a specific share of the property. It is sufficient that they intend that the claimant should have a beneficial interest or “some form of proprietary interest”: Shepherd v Doolan at [36] per White J (as his Honour then was).

41. [540]

    The intention may be established in a number of ways including by express agreement or inference. To the extent that an intention may be inferred from conduct it appears to be generally speaking the case that:

    1. (1)

       it will not be inferred merely from joint occupation of property nor doing of repairs, renovations, maintenance or improvement of property;

    2. (2)

       it may be inferred from financial contributions, direct or indirect to the acquisition of property including the paying off of mortgages or the payment of expenses which free up funds for that purpose: Shepherd v Doolan at [37]-[38].

42. [541]

    The enquiry regarding intention in this regard is a wider enquiry than that seeking to determine whether a contribution was made to purchase price such as to give rise to a presumption of a resulting trust: Shepherd v Doolan at [38].

43. [542]

    The statement of principles from Shepherd v Doolan was recently affirmed by White JA in Galati v Deans at [54].

44. [543]

    In Bassett v Cameron, Ward CJ in Eq (as the President then was) said (at [565]) that:

45. [544]

    As noted above, Mr Brown relied on authorities with respect to the joint endeavour constructive trust doctrine in submissions despite the claim for a joint endeavour constructive trust not being particularly clear on the face of the pleadings: DOS [64]; DCS [34]-[35].

46. [545]

    The starting point for consideration of this class of case is the comments of Deane J (Mason J agreeing) in Muschinski at 620:

47. [546]

    Deane J, however, was in the minority on the constructive trust point advanced in Muschinski: Craig v Silverbrook at [94] per Sackar J.

48. [547]

    Accordingly, the joint endeavour doctrine only received its vigour in the decision of Baumgartner. There, Mason CJ, Wilson and Deane JJ adopted (at 148) and applied (at 149) Deane J’s comments in Muschinski extracted above.

49. [548]

    The requirements for a joint endeavour constructive trust were articulated by Ward CJ in Eq (as the President then was) in Galati v Deans [2021] NSWSC 1094 at [913]:

50. [549]

    There is no need for the parties to possess an intention to create a trust. However, the parties’ intention remains relevant to the extent that it must be shown that "the benefit of money or other property contributed by one party [was] on the basis and for the purposes of the [joint] relationship or endeavour" (Muschinski at 620). The claimant must demonstrate both the existence of a joint relationship or endeavour, and that the parties made contributions on the basis and for the purpose of that joint relationship or endeavour: Craig v Silverbrook at [109].

51. [550]

    Further, it is necessary to identify the scope of any joint endeavour: West v Mead at [59] per Campbell J (as his Honour then was).

52. [551]

    What circumstances satisfy each of requirements is ultimately a matter of evidence.

53. [552]

    Caselaw describes the need for the failure of the joint endeavour to meet the description of a “premature termination” (West v Mead at [64] per Campbell J), and says that the circumstances of failure must have been “not contemplated by the parties” (Henderson v Miles (No 2) [2005] NSWSC 867; (2005) 12 BPR 23,579 at [23] per Young CJ in Eq) and must be “outside the contemplation or intentions of the parties at the time of entry into the joint endeavour” (Cetojevic v Cetojevic [2007] NSWCA 33 (Cetojevic [NSWCA]) at [34] per Hodgson JA, Tobias and McColl JJA agreeing): Ying Khai Liew, ‘The ‘joint endeavour constructive trust’ doctrine in Australia: Deconstructing unconscionability’ (2021) 42(1) Adelaide Law Review 73 at 82.

54. [553]

    This generally requires the Court to look at the totality of the relevant evidence: Cetojevic [NSWCA] at [35] per Hodgson JA (McColl and Tobias JJA agreeing).

55. [554]

    On the facts here, Mr Brown did not clearly identify the particular matter that is said to have been a failure of the substratum of the joint relationship or endeavour.

56. [555]

    Further, it must be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.

57. [556]

    Because each of the elements of a joint endeavour constructive trust are ultimately fact sensitive caselaw per se does not point to definitive isolated factual criteria as compelling any particular outcome.

58. [557]

    The trust case appeared centred around an idea that the deceased had actually promised to leave her real property to the defendant. I found that there was no actual promise to that effect.

59. [558]

    In any event, the mere death of the deceased does not compel a finding that a joint endeavour constructive trust may be imposed.

60. [559]

    It is possible to find some cases in which the death of one of the participants to an asserted joint endeavour on the facts is not regarded as a premature termination or cause of failure of the joint endeavour without attributable blame in any real sense: Bassett v Cameron at [569] per Ward CJ in Eq (as the President then was).

61. [560]

    In other cases, the untimely death of a party (when he was swept from the rocks while fishing) on the facts satisfied the requirement that the joint endeavour come to an end without attributable fault on the behalf of the parties to the joint endeavour: Cetojevic v Cetojevic [2006] NSWSC 431 at [43] per Campbell J (as his Honour then was). This conclusion was upheld on appeal with Hodgson JA emphasising the importance of looking at the totality of what happened, which, there, was so outside what was contemplated by the parties that it could be fairly found that the joint endeavour had failed: Cetojevic [NSWCA] at [35] per Hodgson JA (McColl and Tobias JJA agreeing).

62. [561]

    The fact that the criterion regarding unconscionability is fact specific and indeed related to the question of whether the relationship has terminated in a way unforeseen by the parties is emphasised by Sheller JA in Bryson v Bryant (1992) 29 NSWLR 188 at 222A-F per Sheller JA, Samuels AJA agreeing at 223E-F.

63. [562]

    Although a Will is revocable until death or loss of testamentary capacity, equity enforces a contract to leave property by Will, not by restraining or nullifying an inconsistent Will, but by fastening a trust on the estate to give effect to the contract: Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [31] (Delaforce) per Handley AJA (Allsop P at [1] and Giles JA at [6] agreeing) citing Birmingham v Renfrew (1937) 57 CLR 661; [1937] HCA 52 at 683 per Dixon J.

64. [563]

    However, a contract to leave specific property by Will and a proprietary estoppel by encouragement based on similar promises is susceptible to being defeated, by an order for provision under the Succession Act: Delaforce at [34]-[35] per Handley AJA: T 200.

65. [564]

    Subject to one matter referred to below, Mr Brown did not specifically draw to my attention the evidence to support the trust claim. I have examined the defendant’s affidavits to attempt to understand what support there is for a trust as propounded in the cross-claim.

66. [565]

    The defendant in the prescribed administrator’s affidavit stated that there were no jointly-held assets in which the deceased had an interest as of the date of her death albeit that the defendant claimed an equitable interest in the Murwillumbah property in the amount of $250,000 pursuant to “my contributions to mortgage repayments, construction, maintenance, renovations and repairs, to each of the real estate properties held in the name of the deceased over the past twenty (20) years”: CB 111-112[11], [18]. However, the defendant did not indicate how the amount of $250,000 was calculated and neither Mr Brown nor Mr Simpson referred to it during the hearing or in any submissions.

67. [566]

    The defendant’s main affidavit in chief (4 April 2022) contains very little material supportive of the trust claim. The particular material (as admitted after objections) it appears that might bear upon it is as follows:

68. [567]

    The defendant’s affidavit dated 26 May 2020 annexed the letters of the deceased which I have referred to above dated 18 August 2020 and 23 September 2020: CB 153[3], 156, 158.

69. [568]

    The defendant’s affidavit dated 22 July 2022 contains some degree of material which might be said to be referable to the trust claim. In particular, I note (CB 161-166) (emphasis added):

70. [569]

    The defendant’s reference to receiving a Commonwealth disability pension in 2003 was shown to be mistaken as I have referred to above.

71. [570]

    I have referred above to the work the defendant deposes to carrying out with the deceased in relation to the Pottsville duplex (CB 163[16]), the Campbelltown villa (CB 163[20]) and the Murwillumbah property: CB 165[27], [28].

72. [571]

    In relation to the claim that a trust (arising out of proprietary estoppel) was created in 2003 by the alleged Representation and Continuing Representation, I reject that claim. I accept Mr Simpson’s submissions that there is no evidence to that effect.

73. [572]

    Even if I am incorrect, it is necessary to address Mr Simpson’s submissions regarding legal obstacles.

74. [573]

    Despite the defendant’s pleading, it is not clear to me that the case was ultimately pressed as being one of a proprietary estoppel. However, to the extent that it was I accept the submissions that there is no identification of how the defendant would have acted differently in the absence of the alleged Representation, Continued Representation or any other encouragement.

75. [574]

    In any event, assuming all the other obstacles could be overcome, I accept that no trust should be imposed because the deceased had done exactly what she had promised to do. For the purposes of estoppel, therefore, there has been no “resilement” by the deceased in the relevant sense: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [77] per French CJ, Kiefel, Bell and Keane JJ.

76. [575]

    In relation to the alternative claim of a common intention constructive trust, I am not persuaded that that claim has been made out.

77. [576]

    One must find as a matter of evidence that there was an intention that the claimant should have a beneficial interest or “some form of proprietary interest” in the property: Shepherd v Doolan at [36] per White J (as his Honour then was).

78. [577]

    First, the highest the evidence came to that in terms of any actual discussion is the statement the defendant attributed to the deceased in 2010 to the effect:

79. [578]

    This is the one matter that Mr Brown referred to: T 216.40-217.5. Mr Brown left hanging the implication he stated that was to arise from that commenting:

80. [579]

    However, I consider that the statement “this is your home, as much as it is mine; Nicholas will have to move into our home because I can't do it without you” is equivocal. It is at least consistent with the deceased simply expressing to the defendant her wish that she did not want the defendant to move out as distinct from Mr Parkes moving in, without any necessary intimation that the defendant should have a beneficial interest or “some form of proprietary interest” in the Campbelltown villa. Ultimately, the defendant broke up with Mr Parkes prior to them living together and Mr Parkes did not move into the home.

81. [580]

    Secondly, the defendant does not state that she understood this statement as giving her a beneficial interest or “some form of proprietary interest” in the Campbelltown villa.

82. [581]

    Thirdly, the deceased’s letters dated 18 August 2020 and 23 September 2020 do not refer to any promise as alleged by the defendant in her trust claim and specifically did not assert that the deceased was leaving the property to the defendant because she had promised to do so in 2003 or at any time.

83. [582]

    Fourthly, the deceased’s 2007 Will is inconsistent with any common intention that the defendant should have a beneficial interest or “some form of proprietary interest” in the deceased’s real property being at that stage the Pottsville duplex or any later purchase. It merely gave the defendant a permission to reside in “such dwellinghouse or strata unit in which the deceased was residing at the date of her death” on terms as to payment of certain outgoings and in any event only for a period of two years.

84. [583]

    Fifthly, the August 2020 Will in its terms appears to be counter to any claim that the deceased at that stage considered herself necessarily bound by any promise or trust to leave the Murwillumbah property entirely to the defendant.

85. [584]

    Lastly, a submission was put to the effect that if I were to make a finding that the property holding as between the deceased and the defendant was “50/50”, there are some authorities that would say it was held as joint tenants. There is no need for me to decide this issue. However, generally, equity sets its face against presuming joint tenancy and there is also statutory policy to like effect: see s 26 Conveyancing Act 1919 (NSW).

86. [585]

    As to the possibility that the intention could be inferred from financial contributions to the paying off of mortgages or the payment of expenses which free up funds for that purpose, I have some difficulties with Mr Brown’s analysis in the DOS.

87. [586]

    First, complete analysis of the decades of bank accounts (as foreshadowed at DOS [14.5]) was not provided to the Court at the conclusion of the hearing.

88. [587]

    Secondly, it was evident from the DOS that the calculations performed would be ultimately dependent upon some form of proper referencing being provided to the Court ultimately from numerous documents being tended in a tender bundle: DOS [45]. However, limited materials were eventually adduced by the defendant in the face of complaints of prejudice by Mr Simpson: T 183.23- 191.44.

89. [588]

    Thirdly, there was no ultimate referencing as foreshadowed: DOS [45]. There was no actual evidence by anyone on the defendant’s side stating what materials had been analysed and what calculations had been performed. Ordinarily, if a party wishes to assert matters said to arise from voluminous documents, some person who has examined the documents will prepare a summary of them to facilitate adducing the evidence by admissible means such as pursuant to the provisions of s 50 Evidence Act. However, even that method requires a party to serve on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and for the receiving party to be given a reasonable opportunity to examine or copy the documents in question. That did not occur.

90. [589]

    Fourthly, in the absence of the above evidentiary materials, there was no clearly articulated assumptions or rational basis for concluding that the so-called reference period was an appropriately large and properly formulated sample from which a proper statistical inference could be drawn regarding contributions.

91. [590]

    Finally, analogous to the absence of resilement for the proprietary estoppel case, there has been no “unconscientious denial” by the deceased of the cross-claimant’s rights for the purposes of a common intention constructive trust, as the defendant had done exactly what she promised to do: Koprivnjak v Koprivnjak [2023] NSWCA 2 at [24(1)] per Griffiths AJA (Leeming and Mitchelmore JJA agreeing).

92. [591]

    To the extent that a claim for a joint endeavour constructive trust was argued, I do not consider that the elements of a joint endeavour constructive trust are made out in this case either.

93. [592]

    Leaving to one side for the moment the difficulty of characterising the scope of a joint relationship or endeavour, it is far from clear that the second and third requirements are established.

94. [593]

    There were no specific submissions as to the foreseeability of the termination of the joint endeavour or how it was said that it was prematurely terminated “without attributable blame”. This is a factual issue which requires assessing the totality of the relevant evidence. The eventual death of the deceased was clearly within the contemplation of the parties and could not be characterised as a premature termination of the asserted joint endeavour.

95. [594]

    In any event, it is impossible to see how the requirement of unconscionability can be established as the deceased left the property to the defendant.

96. [595]

    Whilst I consider that the trust claim is not made out, I should make it clear that I consider that the defendant’s evidence regarding contribution of her Newstart and pension income over a very large period of time at least 18 years gave rise to a very significant contribution by the defendant to the maintenance and improvement of the deceased’s property for the purposes of the family provision claim which I now proceed to address.

Family provision principles

1. [596]

   The Court may make a family provision order if it is satisfied that adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made [by either or both of the Will of the deceased or by operation of the rules of intestacy]: s 59(1)(c) Succession Act.

2. [597]

   The Court must be so satisfied at the time when the Court is considering the application: s 59(1)(c) Succession Act.

3. [598]

   For the purposes of Ch 3 of the Succession Act, in determining whether any order can or should be made in the family provision claim, it has been said that the question of whether the two-stage approach outlined in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 (Singer v Berghouse) applies should be of no real significance, provided that the nature of the first stage of the inquiry is not misunderstood: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [68]-[69] per White JA (McColl JA at [1] and Payne JA at [4] agreeing).

4. [599]

   A practical way of approaching the matter of whether any order can or should be made in a family provision claim is by considering the matter by reference to issues posed by s 60 to be determined by the Court. Section 60 provides categories of factors or “matters” which may be considered, namely (a) whether the applicant is an eligible person; (b) whether a family provision order should be made, and (c) the nature of any such order: Poletti v Jones [2015] NSWCA 107; (2015) 13 ASTLR 113 at [17] per Basten JA (Leeming JA agreeing).

5. [600]

   In determining whether to make a family provision order and the nature of any such order the Court may have regard to a number of matters enumerated in s 60(2) Succession Act which in any given case may be relevant to an assessment of whether adequate provision has been made.

6. [601]

   In this regard I refer to my comments in Shymko v Lach at [759]-[763].

7. [602]

   The question as to whether an applicant has been left with inadequate provision for her proper maintenance, education or advancement in life involves a finding of fact, albeit one that is, in light of the substantive character of the matter to be decided, evaluative. It does not involve an exercise of discretion: see Strang v Steiner [2019] NSWCA 143 at [76] per Macfarlan JA and at [131] per White JA; Georgopoulos v Tsiokanis [2022] NSWSC 563 at [256] per Hallen J.

8. [603]

   I addressed and adhere to what I stated in Shymko v Lach regarding a number of the principles which are relevant to considering the question of adequacy of provision as follows:

9. [604]

   It is relevant to have some understanding of what is proper provision.

10. [605]

    The adjective “proper” derives its meaning in context. Generally, the word conveys the notion of something being fit or suitable or appropriate to the purpose or circumstances being addressed: Macquarie Dictionary, online ed.

11. [606]

    In Robertson v McCann [2023] NSWSC 159, I stated at [536]-[541] the following:

12. [607]

    There are various jurisdictional and discretionary steps that must be satisfied before a Court can make an order designating property as notional estate for the purposes of a family provision order or costs order.

13. [608]

    First, by reason of s 88(b) Succession Act, the Court has no power to make an order concerning notional estate unless it is satisfied that the deceased person’s estate is insufficient to make an appropriate order for provision.

14. [609]

    Secondly, by reason of s 80(1) Succession Act, the Court can make a notional estate order designating property to be notional estate of the deceased person if the Court is satisfied that the deceased person entered into a “relevant property transaction” before his or her death and the transaction is one to which s 80 applies.

15. [610]

    The expression “relevant property transaction” means a transaction or circumstance affecting property and described in ss 75 or 76 Succession Act.

16. [611]

    By s 75(1) Succession Act, a person enters a “relevant property transaction” if:

17. [612]

    Section 76 Succession Act provides a mechanism by which various circumstances set out in s 76(2), subject to full valuable consideration not being given, constitute the basis of a relevant property transaction for the purposes of s 75.

18. [613]

    Broadly speaking (though not exclusively), the deeming provisions in s 76(2) deal with the failure of a person (usually the deceased) to do certain things with the result that in certain common types of “transactions”, property is either taken out of the deceased’s estate or not brought within the deceased’s estate.

19. [614]

    Thus, a relevant property transaction will be deemed to have taken place subject to full valuable consideration not been given, where a person:

    1. (1)

       fails to exercise a power to appoint property or extinguish an interest in property or deal with property in a particular way: s 76(2)(a), (c), (d);

    2. (2)

       fails to sever an interest in property: s 76(2)(b); or

    3. (3)

       dies or enters into a contract with the result that property becomes held by another person: s 76(2)(e), (f).

20. [615]

    Thirdly, s 77 Succession Act sets out when a relevant property transaction is taken to have had effect or been entered into.

21. [616]

    A relevant property transaction consisting of circumstances described in s 76(2) (a), (c) or (d) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event resulting in the person no longer being entitled to exercise the relevant power: s 77(2).

22. [617]

    A relevant property transaction consisting of circumstances described in s 76(2) (b) or (e) is taken to have been entered into immediately before, and to take effect on, the person’s death or the occurrence of the other event referred to in those paragraphs: s 77(3).

23. [618]

    A relevant property transaction that involves any kind of contract (i.e. s 76(2)(f)) for which valuable consideration, though not full valuable consideration, is given for the person to enter into the transaction is taken to be entered into and take effect when the contract is entered into: s 77(4).

24. [619]

    Fourthly, the relevant property transaction must have either taken effect or be deemed to have taken effect within effectively a 3-year period prior to the deceased’s death.

25. [620]

    Specifically, pursuant to s 80(2), s 80 applies to:

    1. (1)

       a transaction that took effect within 3 years before the date of the death of the deceased person and was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate of the deceased person for the maintenance, education or advancement in life of any person who is entitled to apply for a family provision order,

    2. (2)

       a transaction that took effect within one year before the date of the death of the deceased person and was entered into when the deceased person had a moral obligation to make adequate provision, by will or otherwise, for the proper maintenance, education or advancement in life of any person who is entitled to apply for a family provision order which was substantially greater than any moral obligation of the deceased person to enter into the transaction,

    3. (3)

       a transaction that took effect or is to take effect on or after the deceased person’s death.

26. [621]

    Where a transaction takes effect on or after a person’s death there is no further requirement to prove the intent with which the transaction was entered into or to go into issues regarding whether the deceased had a moral obligation to make adequate provision for an eligible person which was substantially greater than the moral obligation of the deceased to enter into the transaction: see s 80(2) Succession Act.

27. [622]

    Fifthly, by reason of the s 83(1)(a) Succession Act, the Court must not make an order under s 80 unless satisfied that, inter alia, the relevant property transaction disadvantaged the deceased’s estate or the eligible person’s entitlement to apply for a family provision order.

28. [623]

    Sixthly, by s 87 Succession Act, the Court must not make a notional estate order unless it has considered various matters including the importance of not interfering with reasonable expectations in relation to property, the substantial justice and merits involved in making or refusing to make an order and any other matters it considers relevant in the circumstances.

29. [624]

    The reasonable expectations to be considered in relation to the property under s 87(a) Succession Act are those of the defendant but by the same token the Court should also consider the reasonable expectations of the deceased and also possibly the reasonable expectations of the plaintiff: Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4 at [105] per Beazley P (as her Excellency then was), with whom Meagher JA agreed.

30. [625]

    Seventhly, when determining what property should be designated as notional estate, the Court must have regard to the matters enumerated in s 89(1)(a)-(e) Succession Act and must not designate as notional estate property that exceeds that which is necessary: s 89(2).

31. [626]

    Further, if, as a result of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, property becomes held by a person as a trustee only, the Court must not designate as notional estate any property held by the person other than the property held by the person as a trustee as a consequence of any such relevant property transaction or distribution: s 89(3).

32. [627]

    Finally, property may be designated as notional estate under s 80 if it is property that is held by, or on trust for a person by whom property became held as the result of a relevant property transaction, whether or not the property was the subject of the relevant property transaction: s 80(3)(a) Succession Act; Charnock v Handley [2011] NSWSC 1408 at [180]-[196] and, particularly [191] per Hallen AsJ (as his Honour then was).

Notional estate claim regarding the Murwillumbah property

1. [628]

   Ultimately, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue. However, should I be incorrect in relation to the trust claim I briefly address the claim that the Murwillumbah property is liable to be designated as notional estate.

2. [629]

   Mr Simpson submitted that a promise to leave an asset by Will does not take the asset outside the reach of Ch 3 of the Succession Act: citing Barns v Barns at [32]-[33] per Gleeson CJ, at [115] per Gummow and Hayne JJ, Curtin v Curtin [2005] NSWSC 35 at [36]-[39] per Palmer J, and Delaforce at [34]-[35] per Handley AJA: POS [40]-[42], T 200.

3. [630]

   Mr Simpson submitted that the Murwillumbah property, even if held on trust for the defendant, is nonetheless liable to be designated as notional estate for the following reasons (POS [43]):

   1. (1)

      the making of the promise or representation by the deceased is an act within the meaning of s 75(1) Succession Act;

   2. (2)

      the disposition that thereby occurred on the death of the deceased is a transaction within the meaning of s 80(2)(c) Succession Act;

   3. (3)

      the property is property within the meaning of s 80(3)(a) Succession Act;

   4. (4)

      the vesting of the whole of the beneficial interest in the property in the defendant, relative to the contributions she made, disadvantaged the estate within the meaning of s 83(1)(a) Succession Act;

   5. (5)

      the property may be designated as notional estate under s 78(1) Succession Act for the purposes of the Court making a family provision order or a costs order; and

   6. (6)

      for the purpose of s 88(b) Succession Act, the Court must assume that the property in respect of which a family provision order can be made includes the notional estate as well as the actual estate. Were it otherwise no notional estate order could ever be made, except perhaps as to costs, because the question of what provision for an eligible applicant’s maintenance, education or advancement in life is proper, and whether the provision, if any, made is adequate, can only be assessed having regard to the assets available, citing Wardy v Salier [2014] NSWSC 473.

4. [631]

   Mr Brown submitted that if the Court finds that a trust existed on the basis of the cross-claim that the property could not be designated as notional estate as “the estate has no financial interest in the property” and the defendant gave “proper” consideration: DOS [63].

5. [632]

   Other than the above, Mr Brown did not provide detailed submissions regarding the operation of the notional estate provisions of the Succession Act or otherwise expressly address the notional estate submissions of Mr Simpson regarding the Murwillumbah property.

6. [633]

   As I have indicated, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue.

7. [634]

   The submission that the making of a promise or representation by the deceased is an act within s 75(1) Succession Act requires more analysis. Section 75(1) has several parts.

8. [635]

   The way Mr Simpson puts the notional estate claim requires addressing the question of whether a promise affecting the deceased’s real property may constitute an act resulting in property being held by another person or subject to a trust.

9. [636]

   There is caselaw that supports the proposition that a promise by a deceased resulting in the beneficial interest in property being subject to a constructive trust may amount to an “act” for the purposes of s 75(1): De Blac v Lo [2014] NSWSC 142 (De Blac v Lo) per Stevenson J at [94]-[95]. However, other than cases involving the exercise of a power of appointment of a disposition in relation to property, the making of a Will or omission to make a Will per se does not constitute such an act: s 75(3).

10. [637]

    There is a second aspect to s 75(1) namely that whether what has happened can be characterised as a “relevant property transaction” depends on whether or not “full valuable considerable” was “not given” to the Deceased for that promise: De Blac v Lo at [96].

11. [638]

    Neither counsel addressed submissions to that issue.

12. [639]

    The onus of establishing that full valuable consideration was not given lies on the party asserting that proposition. However, where that party establishes a prima facie case of inadequacy of the valuable consideration given, the evidential burden will pass to the other party to establish that consideration was given, and the extent of that consideration: in Kastrounis v Foundouradakis [2012] NSWSC 264 (Kastrounis) at [99] per Hallen AsJ (as his Honour then was); De Blac v Lo at [98].

13. [640]

    The expression “full valuable consideration” has been construed to mean such valuable consideration as amounts to, approximates, or is broadly commensurate with, or is a fair equivalent of, the value of that for which it is given: Kastrounis at [95], De Blac v Lo at [99].

14. [641]

    Whether full valuable consideration is given is a question of fact and involves no exercise of discretion. The Court should determine the question applying a commonsense approach and “avoiding finely balanced mathematical computations involving the value of normal exchanges of support in the domestic sense”: Kastrounis at [95] citing Jelley v Iliffe [1981] 2 All ER 29.

15. [642]

    In the absence of submissions on the matter, there were difficulties which arise including determining the time at which “full valuable consideration” is required to be given and whether that is at the time that the promise is given or agreement made (e.g. De Blac v Lo at [103]) or at the time that the trust is taken to have attached to the property.

16. [643]

    In Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519, I addressed the issue of the time at which a constructive trust arises in the context of a claim of a proprietary estoppel. I stated at [1268]-[1270]:

17. [644]

    In light of the above-mentioned difficulties, I do not propose to further speculate on the notional estate claim regarding the alleged trust, suffice it to say that it is not self-evident to me that the relevant property transaction took effect on the deceased’s death as submitted.

Notional estate claim regarding the life insurance policy

1. [645]

   Ultimately, in light of the findings I have made regarding the trust claim it is not necessary to make a finding on this issue. However, should I be incorrect in relation to the trust claim I briefly address the claim that the proceeds of the policy benefit are liable to be designated as notional estate.

2. [646]

   Mr Simpson submitted that the policy benefit proceeds the defendant received (being approximately $324,000) is property the subject of a “relevant property transaction”.

3. [647]

   In this regard, Mr Simpson referenced:

   1. (1)

      the sum of $100,000 in the defendant’s solicitor’s trust account (on account of costs); and

   2. (2)

      what he described as the “chose in action” being the debt owed by the estate as apparently claimed by the defendant (CB 335[10]) in the sum of “approximately $200,000” paid to reduce the mortgage: T 195.

4. [648]

   Mr Simpson submitted that the “circumstance” that the deceased had failed to exercise a power to substitute the plaintiff as a person to whom money was payable under the life insurance policy on the deceased’s death, being something that she was “entitled” to do constituted the basis of a relevant property transaction for the purposes of s 75 Succession Act: s 76(2)(d)(i) Succession Act: T 194. I noted that conceptually there was another circumstance that might engage the notional estate provisions being the failure of the deceased to exercise a power to surrender or otherwise deal with the life insurance policy (see s 76(2)(d)(ii)). Mr Simpson accepted that proposition: T 194.

5. [649]

   Mr Simpson submitted that the relevant property transaction consisting of the circumstances described in s 76(2)(d) was deemed to have been entered into immediately before and to take effect on, the deceased’s death: s 77(2) Succession Act.

6. [650]

   There may be cases in which a relevant property transaction consisting of circumstances described in s 76(2)(d) in respect of a life insurance policy is deemed to have taken place on the occurrence of what is described as “some other event” in s 76(2)(d) in which case the entry of the relevant property transaction is dated to the occurrence of the “other event” resulting in the person no longer being entitled to exercise the relevant power: s 77(2). However, that is not the case here.

7. [651]

   Mr Simpson then submitted that the jurisdiction of the Court to make a notional estate order designating property specified in the order as notional estate of the deceased was enlivened as the transaction (by force of s 77(2)) took effect on the deceased’s death and, accordingly, was a transaction to which s 80 Succession Act applies: s 80(2)(c).

8. [652]

   Mr Simpson submitted the defendant received a greater proportion of the proceeds of the life policy than the plaintiff. The defendant is a person and by whom property became held as a result of the relevant property transaction and, accordingly, property held by the defendant may be designated as notional estate whether or not the property she holds was the actual subject of the relevant property transaction: s 80(3)(a) Succession Act.

9. [653]

   Mr Brown did not dispute the above-mentioned analysis: T 195.

10. [654]

    Further, Mr Brown did not dispute that such a relevant property transaction disadvantaged the deceased’s estate pursuant to s 83(1)(a) Succession Act: T 195. Alternatively, a finding could be made that the transaction disadvantaged the plaintiff as an eligible person entitled to apply for a family provision order: s 83(1)(a) Succession Act.

11. [655]

    The area of dispute that Mr Brown raised in relation to a designating order with respect to the proceeds of the life policy related to the matters to be considered by the Court before it makes (if at all) a notional estate order, namely:

    1. (1)

       s 87 factors (the importance of not interfering with reasonable expectations in relation to property; the substantial justice and merits involved in making or refusing to make the order; and any other matter the Court considers relevant to the circumstances); and

    2. (2)

       s 89 factors.

12. [656]

    Mr Simpson submitted that there had been an apparent breach of the defendant’s undertaking in accordance with the email dated 13 July 2021 to hold the policy benefit proceeds she had received from MLC in a separate bank account until the plaintiff’s claim was resolved: POS [31], CB 99. Mr Brown disputed that any such undertaking had been sought or proffered (CB 97, 99): DCS [40]. It is technically true that there is no specific indication of what if any response there was received to that email.

13. [657]

    Further, Mr Simpson submitted that little weight should be given to the first matter namely the importance of not interfering with the defendant's reasonable expectations in relation to property. He indicated that this was not a situation such as a joint tenancy where one person dies and there has been a long-term holding between the two but, rather, here there was simply a payout under an insurance policy which could just as well have been paid to the estate, owned by the deceased, and which in substance the defendant only has an interest because it had been left to her either by Will or by a nomination to take effect on the deceased’s death: T 196.

14. [658]

    Mr Simpson submitted that the substantial justice and merits of the case depended essentially upon the overall assessment of the plaintiff’s family provision claim: T 196.

15. [659]

    The parties addressed submissions to the first six steps of what I have described regarding the notional estate provisions above.

16. [660]

    No particular submissions were addressed to the s 89 factors which are factors which the Court must have regard to.

17. [661]

    In the absence of submissions in particular regarding those factors I do not propose to further speculate on the notional estate claim regarding the proceeds of the policy benefit.

The family provision claim

1. [662]

   Mr Simpson submitted the plaintiff had a close and loving relationship with the deceased and that they lived with, or in close proximity to, each other, for most of the plaintiff’s life, with daily telephone calls until she became ill and multiple instances of close contact and assistance given by the plaintiff to the deceased up until the deceased’s death: POS [54]-[55].

2. [663]

   The defendant says the plaintiff’s relationship with the deceased was close when he was younger, but it deteriorated over the years; and especially so once the deceased became unwell. She says his contact was not regular and the assistance he gave involved “minor gestures”: CB 130[36], 133[60]. The defendant acknowledges that the plaintiff on one occasion took the deceased to a chemotherapy appointment: CB 130[36]. The defendant says she would always try and encourage the plaintiff to come and visit when the deceased was unwell and let him know that the deceased was hurt by the fact that he did not visit much or support her with care. She recalls on one occasion the plaintiff stated, “I don't come down because I'm busy living my life” and on another occasion he said “why would I come down when all she does is go and lay down anyway”: 133[60]. The defendant was not challenged on that evidence.

3. [664]

   Mr Simpson accepts that the deceased in her final months was unhappy with what she perceived as a lack of care from the plaintiff. However, he explains this by reference to COVID-19 imposed limitations on the plaintiff’s ability to visit the deceased and the deceased’s illness coinciding with a severe downturn in the plaintiff’s mental health. He says that there is no evidence that the deceased was aware of the latest mental health problems, and did not take account of that in the making of her last Will: POS [56], [59], [80a,c].

4. [665]

   In final submissions, Mr Simpson hesitated to describe the relationship between the plaintiff and the deceased as “close” but nonetheless indicated that they were together and interacting up until the last year or so before the deceased’s death: T 201.

5. [666]

   Mr Simpson submitted that the following factors supported a claim on the estate including:

   1. (1)

      an applicant’s inability to earn or limited means of income citing Armitage v Fraser [2020] NSWSC 979 at [151] per Hallen J; and

   2. (2)

      an applicant’s lack of reserves to meet demands particularly of ill health and the need for financial security and a fund to protect against the ordinary vicissitudes of life citing Taylor v Farugia [2009] NSWSC 801 at [58] per Brereton J (as his Honour then was): POS [57]-[58].

6. [667]

   Mr Simpson drew attention to:

   1. (1)

      the plaintiff’s limited funds being the remains from the sale of his Carrara townhouse and $36,600 in superannuation with no material liabilities: POS [62];

   2. (2)

      medical needs noting the plaintiff’s out-of-hospital treatments have only limited coverage via Medicare and are not otherwise covered by his private health insurance: POS [72]; and

   3. (3)

      the plaintiff’s contributions to the deceased’s property and financial support (as I have outlined above CB 34[80]): POS [75]-[76].

7. [668]

   In general terms, Mr Simpson submitted that the plaintiff’s essential needs are for secure accommodation, a sum to assist him in meeting day-to-day any regular expenses including the costs of his mental health treatment and a buffer or a sum for contingencies: POS [88].

8. [669]

   Mr Simpson accepted that the estate is insufficient to allow provision for the plaintiff to purchase a one-bedroom unit in the Gold Coast in the order of $500,000-$650,000 and suggested provision of about $300,000 (including the $36,100 he already has): POS [89]. I will address this further below.

9. [670]

   Mr Brown submitted that the Court must question the plaintiff’s explanations regarding his recent financial downfall. In this regard, he refers to the plaintiff’s admission evidence that he had funds in excess of that referred to in his updating affidavit and made reference to the plaintiff’s overseas holidays in 2019: DCS [14.13].

10. [671]

    Mr Brown submitted that the plaintiff’s excuses regarding non-production of documents and the disclosure regarding the NAB accounts are troubling and the Court cannot be satisfied that the plaintiff has truly provided disclosure of the proper position of his financial circumstances: DCS [16].

11. [672]

    Mr Brown submitted that there is nothing preventing the plaintiff from working (including with Ausdrill) and that he appears to have enjoyed a long working career albeit with a small period (of nonemployment): DCS [14.11].

12. [673]

    Mr Brown submitted that the building up of the deceased’s estate was only possible with the defendant. He provided some analysis of the various purchases which he contends would not have been possible without the joint endeavour of the defendant: DCS [17]-[29].

Determination of the family provision claim

1. [674]

   The deceased’s estate is essentially cash poor. Its value is overwhelmingly constituted by the value of the Murwillumbah property at $850,000. There is approximately $13,639 in cash. The net estate is agreed to be approximately $538,638. Whilst there is debate over the proper characterisation of the cash payment made by the defendant in the sum of $224,000, that sum, on the findings I have made, stands outside the estate: s 60(2)(c).

2. [675]

   It is important to have regard to the way that the plaintiff’s case was put.

3. [676]

   Mr Simpson accepted, as noted above, that the estate is insufficient to allow provision for the plaintiff to purchase a one-bedroom unit in the Gold Coast in the order of $500,000-$650,000 and suggested that provision of about $300,000 including the $36,100 [$36,013] he already had (from the policy benefit) would with his existing savings put him in striking distance of being able to purchase a unit with a loan (assuming his mental health improved and he was able to qualify for a loan) or if his mental health did not improve would provide him with a substantial cash sum to supplement his income particularly if he was required to go on to the disability support pension: POS [89].

4. [677]

   That opening submission was confirmed in the final submissions: T 203.24-49.

5. [678]

   In determining whether to make a family provision order and the nature of any such order the Court may have regard to a number of other matters which in any given case may be relevant to assessment of whether adequate provision has been made: s 60(2) Succession Act.

6. [679]

   The operation of s 60(2) has been helpfully explained by Hallen J in Mallitt v Gow [2022] NSWSC 1012 at [222]-[224]:

7. [680]

   I agree with those comments.

8. [681]

   I have referred above to the nature and duration of the relationship between the deceased and each of the plaintiff and the defendant and the defendant’s conduct: s 60(2)(a), (m). I accept the defendant’s evidence (in which she was not challenged) that the plaintiff’s contact was not, particularly in later years, as regular as suggested by the plaintiff: CB 130[36], 133[60].

9. [682]

   Mr Simpson refrained from describing the relationship between the plaintiff and the deceased as “close” but nonetheless indicated that they were together and interacting up until the last year or so before the deceased’s death: T 201.

10. [683]

    The deceased expressed her relationship with the defendant in extraordinarily endearing terms stating “I have been the most blessed mother to have had such a special daughter that means the world to me and I love that her very much”: handwritten letter dated 18 August 2020. That assessment of their relationship was not challenged by Mr Simpson.

11. [684]

    Without focussing to any great degree on childhood years, during their adult lives by and large the plaintiff has lived apart from the deceased. Whilst he renovated the deceased’s garage in the Currumbin Waters duplex into a bedroom and moved in so that he could rent out his Palm Beach unit and try to save money, he did not live there for long. However, that was almost 20 years ago.

12. [685]

    On the other hand, for the last 20 years the defendant has lived the entirety of that period with the deceased.

13. [686]

    It is clearly the case that at the time when the deceased needed particular help the defendant devoted herself to care of the deceased. Whilst I accept that at some times in 2018 when the plaintiff was admitted to the Currumbin Clinic his ability to interact with the deceased was somewhat limited, I do not accept that over those last number of years the plaintiff’s mental health conditions precluded him from providing the sort of companionship and even moral support that the deceased craved. She was hurt by that: handwritten letter dated 23 September 2020. Clearly, for the first half of 2019, the plaintiff chose to travel rather than remain close to the deceased at that time.

14. [687]

    Both the plaintiff and the defendant are adults. There were no formal obligations which the deceased owed to the applicant at the time of her death: s 60(2)(b). The nature and extent of the deceased’s responsibilities to the applicant must be considered in that light. The plaintiff even during episodes of mental health issues did not particularly seek the company or support of the deceased in dealing with those issues. The defendant on the other hand was highly dependent upon the deceased during the years of living together.

15. [688]

    The deceased’s letters dated 18 August 2020 and 23 September 2020 describe in the deceased’s own terms her assessment of her moral obligation and responsibility to the plaintiff and the defendant as well as foreshadowing her testamentary intentions: s 60(2)(b), (j). That assessment is connected to the reasons for why the deceased left the Murwillumbah property and contents to the defendant as well as “a good proportion of my MLC life insurance”. That assessment was not challenged by Mr Simpson, and I consider it a powerful consideration in assessing the plaintiff’s claim and defendant’s competing claim to retain the benefits given to her.

16. [689]

    The plaintiff has had available financial resources to him over a lengthy period of time. He has gone in and out of relationships which in part explain why he does not own real property currently: s 60(2)(d). He currently has accommodation. He does not describe that accommodation as being unsatisfactory in any particular terms.

17. [690]

    Whilst Mr Simpson kept alive a possibility of provision to enable a plaintiff to purchase accommodation, the main claim pressed was essentially a claim for a fund for contingencies. The defendant, on the other hand, has a distinct requirement for accommodation as well as a fund to cover the vicissitudes of life. Beyond the testamentary provision given to her and the receipt of the policy benefit it is clear beyond argument that she has no real capacity to save in a way to enable her to purchase any accommodation or build a fund: s 60(2)(d).

18. [691]

    As I have found above, I do not accept that the plaintiff is incapacitated for work: s 60(f). I do not regard the plaintiff’s prognosis as being as poor as Dr Bertucen suggested. I do not accept that the plaintiff’s mental health is as chronically debilitating as would generally preclude him being engaged in employment.

19. [692]

    I find that the plaintiff would generally be able to hold down employment albeit that there may be some small or very minor periods not extensive in any given year in which he is unable to work.

20. [693]

    On the other hand, as I have found above, the likelihood is that the defendant will not be able to recover full health nor be likely to obtain any lasting form of part-time work.

21. [694]

    I accept that the plaintiff has made some contribution to the maintenance and improvement of the deceased’s property: s 60(2)(h). The main factors in this regard are that he renovated the garage of the Currumbin Waters property to a large bedroom including installing carpet, a built-in wardrobe and external doors and landscaping the outdoor areas and maintaining the lawn and he landscaped the outdoor areas of the Pottsville property and maintained the lawn. The works done in relation to the Currumbin Waters property were at least initially to benefit the plaintiff.

22. [695]

    Without minimising the plaintiff’s contributions in this regard, comparatively speaking it seems to me that they pale in comparison to the nature of the defendant’s contributions.

23. [696]

    The defendant in my assessment over a period approaching 18 years made a very substantial contribution to the maintenance and improvement of the deceased’s real property. Whilst I have found against the defendant’s trust claim, it is undeniable that the defendant contributed to expenses and gave what she had out of her pension income.

24. [697]

    I find that she gave a substantial part of her income over to the deceased for the purpose of maintaining and improving the properties that they lived in. It was not a giving away out of her poverty (cf Luke 21:1-4 Bible - New Revised Standard Version, Anglicised). But this was no minor financial contribution by her. Even though she obtained a benefit from being able to live with the deceased and have accommodation she nonetheless gave over to the deceased much of what limited income she had.

25. [698]

    Whilst the defendant obtained a benefit from being able to live with the deceased and have accommodation that way, she was also dependent upon the deceased’s financial resources and in that sense clearly being maintained by the deceased: s 60(2)(k).

26. [699]

    The plaintiff was given some minor inter vivos provision by the deceased during her lifetime: s 60(2)(i). Whilst it was no doubt gratefully received, I do not regard it as being a compelling matter against the plaintiff’s claim for provision.

27. [700]

    Mr Simpson acknowledged both the plaintiff and the defendant have strong “needs”, noting that aside what they may receive from the estate, both parties are in poor financial positions and suffer poor health, with limited or uncertain future earning prospects: POS [6]. Mr Simpson acknowledged that the defendant has lived with the deceased for many years and cared for the deceased throughout her illness: POS [59].

28. [701]

    Mr Simpson submits that the plaintiff could not sustain a job due to the deterioration in his mental health and was out of work for just over a year. He did not qualify for benefits and spent over half of his savings from selling his dwelling on his living expenses as well as continuing expenses relating to his mental health: POS [26].

29. [702]

    That submission finds some support in the plaintiff’s initial affidavit at CB 28[49], [50]. However, the difficulty that I have with the submission is twofold.

30. [703]

    First, the plaintiff did not in his affidavit evidence accurately disclose the extent of his savings. Notwithstanding that the plaintiff’s updating affidavit was sworn a little over three weeks prior to the commencement of the hearing, Mr Simpson adduced from the plaintiff the fact that he has additional bank accounts with funds totalling approximately $10,500.

31. [704]

    Secondly, as regards spending, the materials disclose an equally available alternative explanation and one I find which is that the plaintiff simply chose to travel and spend some portion of the funds available to him in that manner. It is clear that in early 2019 seemingly for a period of no less than 3.5 months (between at least 1 February 2019 and 16 May 2019) the plaintiff travelled extensively including to destinations in Bali, the Mediterranean, Greece, Malta and Italy: Exhibit D3-7 (Facebook Documents Tab).

32. [705]

    The failure of the plaintiff to provide his NAB accounts and any credit card statements stymied to some degree examination of his spending habits and the extent of his resources. He had an obligation of full and frank disclosure: see e.g. Stone v Stone [2019] NSWSC 233 at [162]-[166] per Hammerschlag J (as his Honour then was).

33. [706]

    The plaintiff failed in his duty of disclosure in his initial affidavit to properly disclose that he was cohabiting with Taryn and provide an assessment of her financial resources: s 60(2)(e).

34. [707]

    I was concerned on the hearing that a claimed fund of about $264,000 ($300,000 less $36,013) to enable the plaintiff to possibly purchase accommodation but in any event to have a fund would potentially have the effect of jeopardising the defendant’s existing accommodation or significantly impacting upon her position: T 204-205.

35. [708]

    That led to the debate regarding cross-examination obligations which I have referred to above.

36. [709]

    In my opinion, there was insufficient engagement by Mr Simpson with the reality of the strengths of the defendant’s claim to retain the benefits the deceased gifted to her and to which she has contributed from her financial resources as I have noted above. A claim to make provision of about $264,000 for the plaintiff required in my estimation an active engagement with the impact that would have on the defendant and her ability to purchase accommodation.

37. [710]

    At the time the hearing commenced, there was no evidence of the cost of one- or two-bedroom units which might potentially be options for the defendant in the Murwillumbah area. Indeed, the cheapest form of accommodation identified by the plaintiff in any area remotely close to where the parties live commenced at $550,000 (negotiable).

38. [711]

    The plaintiff’s principal need was for a fund for contingencies. He has a fund currently in the order of at least $100,000. The plaintiff did not properly disclose in his evidence his NAB accounts until the hearing commenced. Had I been confident that I could comfortably rely upon the plaintiff’s evidence I may have proceeded on the basis that the disclosure that the plaintiff made albeit late of the monies in NAB bank accounts was the full extent of his resources.

39. [712]

    However, as I have noted above, there are aspects of the plaintiff’s evidence which do not make me comfortable in concluding that the plaintiff has properly disclosed his position in relation to material considerations in the case.

40. [713]

    The plaintiff’s failure to make a full and frank disclosure has, in the case in which there is a limited property over which the parties are contending, impeded the Court in discharging its function to make the evaluative judgment required by s 59(1)(c) Succession Act.

41. [714]

    Overall, I am not persuaded that the plaintiff has been left with inadequate provision having regard to all the above considerations. Without detracting from what I have already stated above, powerful considerations against the plaintiff’s claim include:

    1. (1)

       the failure of the plaintiff to fully put before the Court details of his financial position and documents in a way to enable a full assessment of his true financial resources and spending;

    2. (2)

       the fact that the plaintiff for his adult life has generally lived independently from the deceased and had gainful employment over the past 20 years;

    3. (3)

       the fact that the plaintiff is capable of being generally employed and that his mental health issues do not preclude in my estimation him from continuing to earn adequate income to live perhaps other than for very minor periods in a year;

    4. (4)

       the fact that the plaintiff even as recently as 16 February 2023 had ad hoc employment doing some handyman jobs (Exhibit D6 at page 22) and shortly thereafter, on or about 21 February 2023, seemingly had available an opportunity for “[a] lot more money for less work” (Exhibit D6 at pages 30-31);

    5. (5)

       the fact that the plaintiff has a fund of at least $100,000 available to him as a form of contingency fund to cover unforeseen expenses and some periods of unemployment, he also claims to have $36,000 in superannuation;

    6. (6)

       the defendant’s desire to remain in the Murwillumbah property which was not tested in a way to enable me to adequately assess the impact upon her of sale of the Murwillumbah property;

    7. (7)

       the fact that prima facie an order for provision in the amount sought for the plaintiff to enable the plaintiff to potentially obtain accommodation or have a fund (particularly if coupled with a costs order in the plaintiff’s favour) would significantly impact and likely jeopardise the defendant’s ability to remain in accommodation;

    8. (8)

       the defendant’s very significant contribution to the maintenance and improvement of the deceased’s property over a period approaching 18 years;

    9. (9)

       the fact that the defendant has already contributed $224,000 from the policy benefit proceeds to reduce the mortgage on the Murwillumbah property and that it is still encumbered by a mortgage of $101,000 which if the plaintiff’s claim is dismissed the defendant will still need to service;

    10. (10)

        the frailties of the defendant’s own physical and mental health;

    11. (11)

        the fact that in all likelihood the defendant will not be able to ever hold down even part-time employment for any length of time enabling her to save or build a fund of money; and

    12. (12)

        the defendant’s very considerable care for the deceased in her remaining years prior to the deceased being admitted to hospital shortly prior to her passing.

42. [715]

    Whilst I have agonised to a great degree in assessing the matter, I have come to the conclusion that the appropriate order is for the plaintiff’s claim to be dismissed.

Conclusion

1. [716]

   In the above circumstances, the orders of the Court are to dismiss the claim and cross-claim.

2. [717]

   The orders of the Court are:

   1. (1)

      I dismiss the plaintiff’s claim.

   2. (2)

      I dismiss the cross-claim.

3. [718]

   I have a tentative view that the appropriate costs order is that each party bear their own costs of the proceedings. I direct the parties’ legal representatives to inform my Associate by 4:00 PM 26 April 2023 if they wish to contend for any different costs order than that. Should they not do so, that will be the costs order that I make.

4. [719]

   If they wish to contend for a different costs order: