Anderson v Yongpairojwong

[2023] NSWSC 1359

Supreme Court

New South Wales

Medium Neutral Citation:

Anderson v Yongpairojwong [2023] NSWSC 1359

Hearing dates:

23, 24, 25, 26, 27, 30 October 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Equity

Before:

Griffiths AJ

Decision:

(1) The further amended statement of claim filed on 17 June 2022 is dismissed.

(2) The first cross-claim filed on 25 February 2022 is allowed.

(3) Under s 42(4) of the Probate and Administration Act 1898 (NSW) any partial or total failure to comply with the requirements of ss 42(2) and (3) shall not bar the granting of probate.

(4) Probate of the will of the late Amonrat Chanta dated 24 June 2020 be granted in solemn form to Kijchai Yongpairojwong.

(5) Unless any party objects within 14 days hereof, the following orders apply to costs:

(a) for the period up until 3 March 2023, the estate of the late Amonrat Chanta bear the costs of the parties, excluding the costs of the two expert medical reports;

(b) the plaintiff pay the second defendant’s costs thereafter, including the costs of the family provision claim;

(c) the second cross-defendant pay the costs of the cross-claimant with respect to the cross-claim filed on 25 February 2022.

Catchwords:

SUCCESSION – Contested probate – testamentary capacity – where testatrix was undergoing treatment for metastatic cancer – whether evidence revealed not of sound mind, memory or understanding and had sufficient testamentary capacity despite effect of treatments and physical condition

SUCCESSION – Contested probate – knowledge and approval of testatrix– whether any evidence of suspicious circumstances surrounding execution of the will

SUCCESSION – Conflict of laws – where testatrix executed will in Australia and then executed a will in Thailand three years later – where some differences between the two wills but deal substantially with the same property – where testatrix domiciled in Australia and Thai will is a valid testamentary instrument under NSW law – where in any event Thai will accords with formal validity requirements of Thai law

SUCCESSION – Family provision claim – extension of time required – where evidence of plaintiff seeking family provision order did not divulge full extent of assets

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98

Probate and Administration Act 1898 (NSW) ss 40, 42

Succession Act 2006 (NSW) ss 6, 48, 58, 59, 60, 78, 99

Supreme Court Rules 1970 (NSW) Pt 78 rr 3, 6

Uniform Civil Procedure Rules 2005 (NSW) rr 31.19, 42.1

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 12 ER 1089

Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154

Boughton v Knight (1873) LR 3 P&D 64

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Carr v Homersham [2018] NSWCA 65

Collings v Vakas [2006] NSWSC 393

Croft v Sanders [2019] NSWCA 303

d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333

Haertsch v Whiteway (No 2) [2020] NSWCA 287

In Re Male [1934] VLR 318

Kerr v Badran [2004] NSWSC 735

King v Hudson [2009] NSWSC 1013

Lewis v Balshaw (1935) 54 CLR 188; [1935] HCA 80

Lim v Lim [2023] NSWCA 84

Madden-Smith v Madden [2012] NSWSC 146

Mekhail v Hana [2019] NSWCA 197

Middlebrook v Middlebrook (1962) 36 ALJR 216

Miller v Miller; Estate of Miller (2000) 50 NSWLR 81; [2000] NSWSC 767

Morton v Copeland (1855) 16 CB 517; 139 ER 861

Nicholson v Knaggs [2009] VSC 64

Perpetual Trustee Company Limited v Baker [1999] NSWCA 244

Price v Dewhurst (1838) 4 My & Cr 76; 41 ER 30

Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Romascu v Manolache [2011] NSWSC 1362

Salmon v Osmond [2015] NSWCA 42

Shorten v Shorten [2001] NSWSC 100

Shorten v Shorten (No 2) [2003] NSWCA 60

Singer v Berghouse [1993] HCA 35

Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Stone v Stone [2016] NSWSC 605

Taylor v Farrugia [2009] NSWSC 801

The Estate of Juliana Voros; Cooney v Cherry [2016] NSWSC 1603

The Public Trustee v Stretch [2002] WASC 147

Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Tyrrell v Painton [1894] P 151

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Waters v Waters (1848) 64 ER 263

Wild v Meduri [2023] NSWSC 113

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Category:

Principal judgment

Parties:

Palisa Anderson (plaintiff/second cross-defendant)
Kijchai Yongpairojwong (first defendant/first cross-defendant)
Kulphat Laoyont (second defendant/cross-claimant)

Representation:

Counsel:
A Maroya (plaintiff/second cross-defendant)
S Chapple SC; D Yazdani (second defendant/cross-claimant)

Solicitors:
Mills Oakley (plaintiff/second cross-defendant)
Swaab (second defendant/cross-claimant)

File Number(s):

2021/356682

Publication restriction:

Nil

headnote

[This headnote is not to be read as part of the judgment]

These proceedings involved a contested probate application concerning two wills executed by the testatrix in NSW (in 2017) (the Australian will) and Thailand (in 2020) (the Thai will). The plaintiff, the daughter of the testatrix, sought to have letters of administration with the Australian will annexed granted to her. By cross-claim, the second defendant, the testatrix’s son, sought letters of administration with the Thai will annexed granted to him, or alternatively an order that probate be granted to the executor of the Thai will. The two wills deal with substantially the same property, appoint the same executor, and divest beneficial entitlements to the plaintiff and second defendant, though to varying degrees.

The plaintiff sought to have the validity of the Australian will upheld, despite the Thai will complying with formal validity requirements, on the basis that the testatrix did not have testamentary capacity, or knowledge and approval, when executing the Thai will. In November 2018, the testatrix was diagnosed with lung cancer, which subsequently metastasised to her brain. By June 2020, when the Thai will was executed, the testatrix had undergone radiotherapy and chemotherapy treatments, and was taking numerous medications and supplements to treat her cancer. The plaintiff claimed that the testatrix was not of sound mind when the Thai will was executed on account of the physical and mental effects of these various treatments. Separately, the plaintiff contended there were suspicious circumstances surrounding the execution of the will such that the testatrix did not have the requisite knowledge and approval. In the event that the Thai will was deemed to be a valid testamentary instrument which superseded the Australian will, the plaintiff brought a separate claim for family provision to be made in her favour.

The issues for determination were:

1. whether the Thai will was, formally, a valid testamentary instrument;

2. whether, despite the above, the Thai will lacked essential validity;

3. if the Thai will was a valid testamentary instrument, whether a family provision order should be made thereunder in the plaintiff’s favour; and

4. whether letters of administration with the Thai will annexed be granted to the second defendant or, alternatively, that probate be granted in solemn form of that will to the executor.

Griffiths AJ held, dismissing the plaintiff’s case in its entirety, and granting the alternative relief sought by way of cross-claim:

1. Formal validity

The Thai will is a valid testamentary instrument under s 6 of the Succession Act 2006 (NSW), thus superseding the Australian will, and is to be taken as evidencing the most recent testamentary intentions of the testatrix: [206]-[207].

1. Essential validity

The parties agreed that the testatrix was domiciled in NSW, and consequently, it was NSW laws on testamentary capacity that applied. In light of the applicable principles, the second defendant discharged his onus of proving the testatrix had testamentary capacity when the Thai will was executed: [244]. The instrument is rational and made substantial provision for each of the two beneficiaries: [221]. The lay evidence revealed the testatrix maintained appreciable levels of business acumen, social intuit and awareness of her surroundings, signifying a level of cognition which demonstrated her testamentary intentions were those as captured in the Thai will: [223]-[243]. Expert medical evidence tendered by the plaintiff did not displace these findings, and was accorded limited weight, including because of the fact that the two experts were not treating physicians: [197]-[198].

Banks v Goodfellow (1870) LR 5 QB 549; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285; Lim v Lim [2023] NSWCA 84, considered.

Relatedly, there was no evidence of the testatrix not having knowledge and approval of the contents of the latter will and there were no circumstances arousing the Court’s suspicion that this document did not have her full consent: [248].

1. Family provision claim

The plaintiff’s case for a family provision order to be made in her favour was made out of time, namely more than 12 months after the testatrix’s death, and no acceptable explanation was provided for the failure to seek the order within time: [251]; [255]. It was also evident that the claim was made as an afterthought, as little evidence or attention was directed to it, and moreover, the plaintiff was not forthcoming as to the true extent of her financial circumstances: [269]-[279]. The plaintiff thus failed to discharge her onus of establishing her claim: [285]-[287].

Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572; Taylor v Farrugia [2009] NSWSC 801, considered.

1. Determination of cross-claim

A grant of probate in solemn form of the Thai will was apposite in the circumstances: [288]. Though some formalities were not adhered to in the filing of the cross-claim, this did not bar the granting of the alternative case in the circumstances: [292]-[293].

headnote

JUDGMENT

A. Introduction

B. Some uncontroversial background matters summarised

(a) Amy’s estate and her two wills

(b) A broad chronology

Purchase of the Mosman Property and Boon Luck Farm

Execution of the Australian will

Lung cancer diagnosis

Execution of the Thai will

Events following the execution of the Thai will

C. The lay and medical evidence summarised and assessed

(a) The parties’ lay evidence

The plaintiff’s witnesses

(i) Palisa

(ii) Matt

The second defendant’s witnesses

(i) Bob’s evidence

(ii) Mr Kasemnate’s evidence

(iii) Ms Klaisoi’s evidence

(iv) Ms Srisomboon’s evidence

(v) Fern’s evidence

Fern’s “ping pong” evidence

(vi) Pat’s evidence

(b) Palisa’s medical evidence

(i) Dr Dua

(a) Dexamethasone

(b) Osimertinib

(c) Fentanyl

(d) Levetiracetam (also known as Keppra)

My assessment of Dr Dua’s evidence

(ii) Professor Ogden

(a) Levetiracetam / Keppra

(b) Dexamethasone

(c) Vitamin B (prescribed supplement)

(d) Thiamine (prescribed supplement)

(e) Cyproheptadine

(f) Tramadol

(g) Fentanyl

(h) Morphine

(i) Osimertinib

(j) Olanzapine

(k) Lorazepam

Professor Ogden’s supplementary expert report

My assessment of Professor Ogden’s evidence

(iii) Conclusions on the expert medical evidence

D. Consideration and determination of Palisa’s case

(i) Some private international law principles summarised

Formal validity of the 2020 will

Applicable law in determining questions of capacity

(ii) Amy’s testamentary capacity

Amy’s understanding of the nature and significance of the act of making a will

Amy’s understanding of the nature and value of her estate

Ability to call to mind and to weigh competing claims

(a) Inferences drawn from the Thai will itself

(b) Amy’s explanation of her testamentary intentions

(c) Amy’s cognitive ability displayed in her interactions with colleagues and third persons

(d) Palisa’s interactions with Amy

(e) Observations of third party lay witnesses

(f) Conclusion on Amy’s testamentary capacity

(iii) Knowledge and approval of Thai will

Conclusion on knowledge and approval

(iv) Family provision claim

Extension of time application

Relevant considerations in making family provision order

Relationship between Palisa and the deceased (s 60(2)(a))

Nature and extent of the estate (s 60(2)(c))

Palisa’s financial resources (s 60(2)(d))

Palisa’s health (s 60(2)(f))

Palisa’s age (s 60(2)(g))

Palisa’s contribution (s 60(2)(h))

Amy’s testamentary intentions (s 60(2)(j))

Circumstances of the competing beneficiaries (ss 60(2)(b), 60(2)(d))

(vi) Conclusion as to appropriate provision

E. Consideration and determination of Pat’s cross-claim

F. Costs

G. Conclusion

JUDGMENT

A. Introduction

1. These proceedings have two broad parts. The first and primary part concerns the issue whether it has been demonstrated that the testatrix had testamentary capacity and the requisite knowledge and approval when she made a second will in Thailand on 24 June 2020 (the Thai will). The Thai will revoked an earlier will dated 25 August 2017, which was made in Sydney (the Australian will).

2. As will be developed, the testatrix was the matriarch of a chain of restaurants in Sydney which used the Chat Thai brand. It is common ground that when the testatrix died in Thailand on 10 March 2021, she was domiciled in NSW. Without disrespect, I will refer to the testatrix by her commonly used name in English, Amy. Similarly, I will use the commonly used names in English of other Thai people.

3. The plaintiff, whom I shall refer to as Palisa, is Amy’s daughter. Palisa is married to Matthew Anderson (Matt). Both have been and remain actively involved in the Chat Thai business. By a further amended statement of claim filed on 17 June 2022 (FASOC), Palisa seeks an order that letters of administration with the Australian will annexed be granted to her. Palisa contends that Amy did not have testamentary capacity (or the requisite knowledge and approval) with respect to the making of the Thai will.

4. The second (and secondary) part of the proceeding relates to a belated amendment made to the FASOC on 17 June 2022, whereby Palisa also seeks an order under s 59 of the Succession Act 2006 (NSW) that provision be made for her out of Amy’s estate and/or notional estate. Because the family provision claim was made some 15 months after Amy’s death (which is outside the requisite 12 month limitation period), Palisa also seeks an extension of time for the family provision claim.

5. The first defendant is Amy’s brother Bob. He filed a submitting appearance. He is the executor under both the Australian and Thai wills. He is not a beneficiary under either of those wills. Although Bob spent some time in Australia some years ago, he has lived in Thailand for the last 20 years.

6. The second defendant is Amy’s son, Pat. He filed a cross-claim on 25 February 2022 in which he seeks the following primary relief. First, an order that letters of administration with the Thai will annexed be granted to him. Alternatively, Pat seeks an order that probate of Amy’s Thai will in solemn form be granted to Bob.

7. Both Palisa and Pat remain as beneficiaries under the Thai will, but as will be developed further below, under the Thai will Amy disposed of her farmland in Thailand to Pat and transferred to him alone her shares in various companies which make up the Chat Thai Group. Amy’s stated purpose in transferring her shares to Pat was to place Pat in a position to control the Chat Thai Group businesses because Amy said that she trusted him to do so and she did not trust Matt.

8. These reasons for judgment are structured as follows:

A.   Introduction.

B.   Some uncontroversial background matters will be summarised.

C.   The lay and expert evidence will be summarised and assessed.

D.   To avoid the reasons becoming unduly lengthy, upon summarising the plaintiff’s primary submissions, I will address and determine the plaintiff’s case on both testamentary capacity and the family provision claim.

E.   I will address and determine the cross-claim.

F.   Costs.

G.   Conclusion.

B. Some uncontroversial background matters summarised

(a) Amy’s estate and her two wills

9. At the time of her death, Amy’s estate in NSW comprised:

1. a 1/3 interest in a farming property located in Tyagarah NSW, which is near Byron Bay, valued at approximately $1.5 million (based on a recent appraisal of the whole property of $4.5 million obtained by Bob) (Boon Luck Farm);

2. a 12/100 interest in a property located in Mosman NSW, valued at approximately $990,000 (based on an appraisal recently obtained by Bob of the whole property of $8.25 million) (Mosman Property);

3. cash held in various accounts with Westpac Banking Corporation totalling $406,205.46; and

4. cash held in the trust account of Swaab Attorneys of $39,617.56.

10. Amy also owned four parcels of land in Thailand, valued at approximately $216,690.

11. In addition, Amy entered into a number of relevant property transactions prior to her death, such that the following assets, as valued by Pat, are capable of being designated as notional estate:

1. 2 ordinary shares in Chat Thai Pty Limited valued at approximately $1,281,000 - $1,455,000;

2. 1 ordinary share in Chat Thai CBD Pty Limited;

3. 100 ordinary shares in Amonrat Pty Ltd;

4. 30 ordinary shares in Jarern Chai Pty Ltd, valued at approximately $180,600;

5. 15,330 shares in Jumpee Travel Pty Ltd valued at approximately $87,570 - $117,180;

6. 50 ordinary shares in Natui Website Pty Ltd, valued at approximately $31,000;

7. 75 ordinary shares in Thai Press Pty Ltd, valued at approximately $90,750 - $144,750;

8. superannuation death benefit held by AMP of $316,344.10;

9. joint bank account held with Palisa and Matt of $121,596.79 as at date of death (current value of $35,617.52);

10. joint bank account held with Amy's former de facto partner, Ray Suchattrakoon of $28.96 as at date of death; and

11. payment of $524,055.55 to Pat and his wife Natasha (from whom he is separated) on the sale of Amy’s property in Seaforth (Seaforth Property).

12. Under the Australian will, Amy appointed Bob as her executor and divided her estate as follows:

1. to Pat she gave:

1. her interest in the Seaforth Property (which property was in October 2020 subsequently sold for $1.8 million);

2. her shares in Chat Thai CBD Pty Ltd;

3. her shares in Jumpee Travel Pty Ltd;

4. ½ of her shares in Chat Thai Pty Ltd;

5. ½ of her shares in Thai Press Pty Ltd;

6. ½ of her shares in Natui Website Pty Ltd;

7. ½ of her shares in Jarern Chai Pty Ltd; and

8. ½ of the residue of her estate.

2. to Palisa she gave:

1. her interest in the Mosman Property;

2. her interest in Boon Luck Farm;

3. ½ of her shares in Chat Thai Pty Ltd;

4. ½ of her shares in Thai Press Pty Ltd;

5. ½ of her shares in Natui Website Pty Ltd;

6. ½ of her shares in Jarern Chai Pty Ltd; and

7. ½ of the residue of her estate.

13. Amy was diagnosed with lung cancer in November 2018. She received treatment in Thailand and in November 2019 was told that the cancer had disappeared. She returned briefly to Australia for a period of approximately three weeks commencing 24 December 2019, staying with Palisa and Matt at the Mosman Property. During this time she initiated steps which ultimately led to the sale of the Seaforth Property in 2020, about which I will have more to say later.

14. Unfortunately Amy’s cancer returned. She commenced chemotherapy treatment in Bangkok in late March 2020, after she had returned to Thailand from Sydney. In May, she took further steps to get her affairs in order. She appointed Bob as her attorney and asked him to make arrangements to assist her to update her will. While in hospital in Bangkok on 2 June 2020, Amy met with a Thai lawyer, Mr Prasong Kasemnate. Following that meeting, she instructed Bob to prepare drafts of her will. He then provided the final draft to Mr Kasemnate to settle. On 24 June 2020, Amy executed the Thai will at Bob’s house in Bangkok with her two friends, Ms Nitha Klaisoi and Ms Thitirat Srisomboon, witnessing her signature (which took the form of a thumbprint).

15. The Thai will was written in the Thai language. Amy again appointed Bob as her executor and divided her estate in the following way:

1. to Pat she gave:

1. her shares in Amonrat Pty Ltd;

2. her shares in Chat Thai Pty Ltd;

1. her shares in Chat Thai CBD Pty Ltd;

2. her shares in Jumpee Travel Pty Ltd;

3. her shares in Thai Press Pty Ltd;

4. her shares in Natui Website Pty Ltd;

5. her shares in Jarern Chat Pty Ltd;

6. four parcels of land located in the Hua Hin District; and

7. the residue of her estate.

2. to Palisa she gave:

1. her interest in the Mosman Property; and

2. her interest in Boon Luck Farm.

16. On 1 July 2020, Amy transferred her shares in Amonrat Pty Ltd, Chat Thai Pty Ltd, Chat Thai CBD Pty Ltd, Jumpee Travel Pty Ltd, Thai Press Pty Ltd, Natui Website Pty Ltd and Jarern Chai Pty Ltd to Pat. These were the shares that were the subject of the specific bequest to Pat in the Thai will.

(b) A broad chronology

17. It is desirable now to give a broad narrative chronology of relevant events which I understand to be substantially agreed.

18. Amy moved to Australia with her two children, Pat and Palisa, in around 1987. In around 1989, Amy and a business partner opened a restaurant in Liverpool Street, Sydney known as Chat Thai. That restaurant closed soon afterwards. In 1993, Amy opened her own restaurant in Randwick, which was also known as Chat Thai. She opened a second restaurant in 2001 at The Galleries in Town Hall, Sydney, and a third restaurant in 2003 in Manly.

19. In 2005, Pat graduated from university with a Bachelor of Architecture and became more involved in the Chat Thai business. He became involved in the operations and management of Chat Thai, with his main involvement relating to design and fit-outs. His evidence (which is disputed on this issue) is that he worked side by side with his mother to make executive decisions. At this time, Palisa was living and working overseas. In 2010, Palisa returned to Australia. From that time she also became involved in the Chat Thai business.

20. Palisa and Pat did not see “eye to eye” on many issues, including in relation to the operation of the Chat Thai business. This appeared to concern Amy for many years, including prior to her diagnosis of lung cancer. She was, in Palisa’s words, very “clearheaded” about her children.

21. In around 2012, Amy began to purchase farmland in the Hua Hun district of Thailand. That farm is located approximately three hours by car from Bangkok.

Purchase of the Mosman Property and Boon Luck Farm

22. In March 2013, Palisa, Matt, and Amy purchased the Mosman Property. They were owners as tenants in common, with Amy owning a 12/100 interest, and each of Palisa and Matt owning a 44/100 interest. Amy lived there with Palisa and Matt when she was in Sydney. In around 2015, Palisa, Matt and Amy also purchased Boon Luck Farm in northern NSW. Amy acquired a 1/3 interest. Boon Luck Farm is a certified organic farm where different varieties of fruits, vegetables, herbs and aromatics are grown for the supply of that produce to Chat Thai restaurants, and other high-end restaurants in Sydney. According to Palisa, Amy made mortgage contributions of $5,000 in cash each month.

Execution of the Australian will

23. In 2017, during a regular health check-up, a small “dot” was discovered on Amy’s lung. She did not have any symptoms and chose not to undergo any further tests to determine whether it was cancerous. Nevertheless, she made the Australian will on 25 August 2017. As noted above, Amy appointed Bob as her executor, devised her interest in the Mosman Property and Boon Luck Farm to Palisa, and devised the Seaforth Property to Pat along with her shares in Chat Thai CBD Pty Ltd and Jumpee Travel Pty Ltd. She divided the balance of her estate (which included the rest of her shareholding in the Chat Thai business) equally between Palisa and Pat.

24. Palisa’s evidence is that she discussed Amy’s Australian will with her in around November 2018. Amy confirmed to Palisa that she would receive Amy’s share in the Mosman Property and Boon Luck Farm.

Lung cancer diagnosis

25. In around late November 2018, Amy was diagnosed with lung cancer. At or around that time, she showed Bob a copy of the Australian will. Between the time of her diagnosis and November 2019, Amy was treated by Dr Samree, a practitioner of Asian medicine, in Chiang Mai in Thailand. At Amy’s last appointment with him in November 2019, Dr Samree informed her that the cancer had disappeared, and that she should see him again in 6 months to follow up.

26. As noted, Amy returned to Australia on 24 December 2019. She stayed at the Mosman Property with Palisa and Matthew for about three weeks. It appears that during this visit, Amy began to wind up some of her financial affairs. She met with a Sydney solicitor, Ms Tatiana White, in early January 2020 for the purpose of executing a Power of Attorney to allow Pat’s ex-wife, Natasha, to sell the Seaforth Property on her behalf.

27. Amy felt unwell during this trip (possibly due to widespread bushfire smoke), and she returned to Thailand on 14 January 2020. On 20 January 2020, Amy began to suffer from severe headaches. Bob took her to Vejthani Hospital in Bangkok. She received treatment there and was discharged on 14 February 2020.

28. Following her discharge, Amy stayed with Bob in his Bangkok home. She also spent time at her farm in Hua Hin. She was frequently hospitalised over the ensuing months.

29. Amy commenced chemotherapy in late March 2020. She received treatments in hospital once every three weeks. Bob accompanied her to those treatments. During the period of that treatment, Amy was engaged to an extent in managing her affairs, including her succession planning, as is reflected in the following evidence:

1. Palisa’s evidence, which I accept, is that in late March 2020, she had a conversation with Amy after she had been discharged from hospital. Amy raised a concern about the possibility of having to pay “death tax” on the transfer of the Mosman Property and Boon Luck Farm. Palisa described her mother as being “quite practical”. She agreed that her mother was thinking through the implications of what might happen with her estate, and also wanted to avoid the possibility that Pat might try to “…make a claim on my [i.e., Palisa’s] home”.

2. Following the conversation described above, Palisa emailed Bob and Amy on 31 March 2020 to introduce them to her Sydney solicitor, Mr Richard Mitry. On 3 April 2020, Palisa sent a further email, copying Amy, in which she asked Mr Mitry (evidently with Amy’s consent) to draft some provisions to ensure that Amy’s interest in the Mosman Property and Boon Luck Farm passed to Palisa. Mr Mitry prepared some draft clauses and provided them to Palisa, Bob and Amy on 4 April 2020. That draft provided for Amy’s interest in the Mosman Property and Boon Luck Farm to go equally to Palisa and Matt. On 16 April 2020, Bob sent Palisa the relevant proposed clauses for her to review. I will have something more to say about this matter below.

3. In April 2020, Simon Zhang from AMP in Sydney was contacted in relation to Amy’s superannuation. Palisa’s evidence, which I accept, is that Amy accepted her suggestion that Amy withdraw her superannuation early to pay her medical expenses. On 1 May 2020, Palisa completed the superannuation withdrawal form with Amy (which ultimately was not acted upon). Palisa’s evidence on this topic, which I accept, is that Amy “…did not appear to have any issue, nor did she appear uncomfortable or reluctant, with what was happening”.

4. In April 2020, Amy asked Bob to arrange for her to execute a Power of Attorney (under the laws of NSW). On 8 May 2020, Amy appointed Bob as her attorney.

Execution of the Thai will

30. In early May 2020, Amy asked Bob to help her with updating her will. Bob’s evidence, which I accept, is that he translated the Australian will into Thai. Amy then told him to:

1. change the gift of the shares so that Pat would receive all of Amy’s shares; and

2. make specific reference to the real property that formed the farm at Hua Hin.

31. Amy then asked Bob to contact her friend Ms Srisomboon to ask for her help to find a local lawyer to assist with the Thai will. Ms Srisomboon recommended Mr Kasemnate.

32. Mr Kasemnate met with Amy on 2 June 2020 at the Vejthani Hospital. In his affidavit, Mr Kasemnate set out certain observations he made on that day as to Amy’s cognition, to which I will return. He also said that they had a conversation in which Amy explained:

About three years ago, I made already made (sic) a will in Sydney but I want to make a new one to cover my assets in Thailand. I would also like to change the beneficiaries in regard to the business. My old will states that my son and daughter are to be the joint beneficiaries, but in the new will I would like only my son to be the sole beneficiary and to take care of the business.

33. When asked to provide a reason, Amy responded:

Because my daughter’s husband is a foreigner. I believe he wants to take control of all of my business.

34. Mr Kasemnate then stated that the will would need to be witnessed by two disinterested people, and that it was permissible for Amy to use her thumbprint to execute the document.

35. Following this meeting, Amy instructed Bob to make changes to her will. Bob then prepared one or more drafts and read them out to Amy. He then sent the final draft to Mr Kasemnate in mid-June 2020.

36. Bob arranged for two of Amy’s friends to attend his Bangkok home on 24 June 2020 so that they could witness her executing the will. Ms Klaisoi (who had known Amy since 2018) and Ms Srisomboon (who had known Amy since 2010 or 2011). Both of them engaged in small talk with Amy, and she explained to them both that she had an earlier will but wished to change it. Amy then executed the Thai will in their presence.

Events following the execution of the Thai will

37. On 1 July 2020, Amy instructed Bob to execute share transfer forms to transfer to Pat her shares in Amonrat Pty Ltd, Chat Thai Pty Ltd, Chat Thai CBD Pty Ltd, Jumpee Travel Pty Ltd, Thai Press Pty Ltd, Natui Website Pty Ltd and Jarern Chai Pty Ltd. Bob’s evidence (which I accept) is that Amy explained that although she had given those shares to Pat in her will, she wanted to “do it to finish it”. This is consistent with Amy’s desire earlier in April 2020 to explore the possibility of transferring the Mosman Property and Boon Luck Farm to Palisa prior to her death.

38. Amy continued to be involved to some extent in the management of her various businesses. By way of example (and noting that Palisa challenges the significance of these matters and points to others which she says suggest that her mother lacked capacity):

1. On 4 July 2020, Amy discussed issues relating to the wages of management staff.

2. Between 14 and 15 July 2020, Amy provided instructions for social media campaigns for the reopening of the restaurant at Hua Hin Farm.

3. Between 16 and 17 July 2020, Amy engaged actively with the Chat Thai executive chef (known as Sam) about the menu for the restaurant at Hua Hin Farm.

4. Between 17 July 2020 and 25 July 2020, Amy provided specific and detailed instructions about the design of the menu for that restaurant.

5. On 13 and 14 August 2020, she considered and did not consent to Palisa and Matt opening a new Chat Thai restaurant in Neutral Bay (Chat Thai NB).

39. Amy’s health further deteriorated in late October or early November 2020. She was no longer able to walk. In late November 2020, she became unwell during one of her chemotherapy appointments. She eventually fell into a coma and died in Bangkok on 10 March 2021.

C. The lay and medical evidence summarised and assessed

40. It is desirable first to summarise the evidence given by the parties’ principal lay witnesses (noting that none of the other witnesses were required for cross-examination). I will also assess that evidence.

(a) The parties’ lay evidence

41. The principal lay witnesses to give evidence in Palisa’s case were Palisa and Matt, both of whom were cross-examined. Their evidence may relevantly be summarised as follows.

The plaintiff’s witnesses

(i) Palisa

42. Palisa affirmed five affidavits. Substantially reflecting the emphasis which was placed on particular parts of her evidence by her counsel (Mr Maroya), her written and oral evidence may be summarised as follows.

43. In her first affidavit, Palisa gave evidence relating to her observations of Amy’s cognition. The relevant parts of that affidavit may be summarised and assessed as follows:

1. Between December 2018 and July 2019, Amy, while aware of her surroundings and circumstances, was only willing to discuss issues relating to Chat Thai business matters at a superficial level, and was not willing to enter discussions that would cause her stress, anxiety or conflict. Palisa then set out a conversation which she had with Amy in May or June 2019 in which Palisa said that she would have to miss a lunch at Boon Luck Farm which Amy had arranged with a publicist because Palisa had to travel to the United States in August to participate in “G’day USA”. Amy said that she could come back to Australia and cook on the farm and that she could ask the executive chef, Sam, to help her. This conversation took place some 12 months before the Thai will was executed. Far from casting doubt on Amy’s cognition, the evidence of the conversation suggests that Amy was behaving rationally and with consideration.

2. In December 2019, while at the Mosman Property, Amy spent most of her time at home, and only socialised with others if they visited her there. This is unsurprising, given that there were widespread and significant bushfires in the Sydney region at that time.

3. Between August 2019 and January 2020, Amy demonstrated “scatter-brained” behaviour, forgetfulness, a lack of acuity and lethargy. I accept that some of the examples given by Palisa of Amy’s behaviour during this period indicated that Amy was, at various times, tired, suffering from headaches and prone to some forgetfulness. I do not accept, however, that the matters identified by Palisa, when viewed individually or collectively, indicate that Amy lacked testamentary capacity more than six months later when the Thai will was executed, particularly when regard is had to other more contemporaneous evidence regarding that matter.

4. Around the same time, Amy tried to give the illusion to people outside the family that she was doing well.

5. By early March 2020, Dr Thanate (at the Vejthani Hospital) had said to Palisa that he did not think that Amy would survive her lung cancer, and that there was not much else that could be done to treat it. This sheds no light on Amy’s testamentary capacity.

6. Palisa claimed that she had a conversation with Bob in mid-April 2020 concerning Amy having been on a pain management program for a couple of weeks. She said that Bob told her that he did not like Amy being on the program “because she’s too cloudy at times on it” and “her memory isn’t great”, that she repeated conversations and that it was sometimes difficult to understand what she wanted or was trying to say. Bob denied the conversation. I prefer Bob’s evidence.

7. Palisa gave evidence that from about mid to late March 2020 to 5 June 2020 (when she returned to Australia from Thailand), Amy appeared to experience bouts of forgetfulness and confusion, calling Palisa at times “Soraya” or “Pat”; repeated conversations that she had had over a short period of time; displayed anxiety; referred to “chemotherapy” as “sweet water” or “nectar”; had shaky hands and was less dexterous, and rarely held her phone. I accept that evidence but add that it needs to be assessed in the context of all the evidence from other witnesses bearing upon Amy’s cognition during and surrounding this period.

8. Ms Sirilada Kruahong (Fern), a senior Chat Thai employee, had told Palisa in the period July 2020 that Amy “seem[ed] to be forgetful and when [she] converse[d] with her, she [was] often repetitive, talking about the same thing several times in the same conversation”. In contrast to this evidence, Fern gave evidence that in or about mid-July 2020, Amy had left her a LINE app voice message asking her to buy a product (one or two jars of cream) and send them to the Hua Hin Farm. Fern said that Amy’s voice “was very clear on the recording and she sounded well and like her usual self”.

44. Palisa’s evidence in her second affidavit regarding Amy’s testamentary capacity issue may be summarised and assessed as follows.

1. Palisa referred to Amy’s chemotherapy treatments and her observations of their effect on Amy. Palisa disagreed with Bob’s evidence that between mid-March 2020 and early June 2020 Amy “did not ever appear to have been mentally affected by the chemotherapy treatments in April 2020”. She said that Amy would say to her that she felt weak and was having problems breathing. Palisa added that Amy ate very little, slept poorly and was paranoid about her medication and supplements. This evidence indicates that Amy was physically debilitated by the chemotherapy, which is hardly surprising. To the extent that it bears upon Amy’s cognitive functioning during this time, I consider that the evidence should not be looked at in isolation but needs to be assessed along with the evidence of other witnesses who were in as good if not a better position than Palisa to assess Amy’s cognition during and around this time, particularly Bob who was spending a lot of time with Amy in Thailand.

2. Palisa said that she remained in Thailand with Amy throughout May 2020, but was unaware of Amy talking to Bob or anyone else about “changing the recipient of her shareholdings to Pat solely”. I accept that evidence, but add that Amy may have deliberately chosen not to involve Palisa in her plans to have Pat acquire all her shareholdings so that he could step into Amy’s shoes.

45. Dr Chapple SC (who together with Mr Yazdani appeared for Pat) did not suggest that the Court should make an adverse credibility finding with respect to Palisa’s evidence. He was correct not to do so. Generally speaking, I found Palisa to be a truthful and sincere witness. At times, however, she was unresponsive to some questions and I also had the impression that she took advantage of some opportunities during her cross-examination to advance her own case without directly answering the cross-examiner’s question. That was particularly so when she wanted to disparage her brother Pat.

46. Palisa’s occasional unresponsiveness was illustrated when she was giving evidence of a conversation she had with Amy in Thailand in March 2020. After Palisa was discharged from quarantine she visited her mother at hospital and collected her to take her back to Hua Hin Farm. Around that time, she recalled that they had a conversation about her mother’s desire to make sure that both her children were treated equally after her death. She said that the discussion centred on the two properties in Australia and did not include the company shares.

47. When it was put to her that her mother’s express desires were logical and rational, Palisa paused. My impression was that this was because she saw the implications of agreeing with that proposition as it related to Amy’s cognitive capacity only a few months before she made the Thai will.

48. Palisa was cross-examined about the discussions she had with Amy about withdrawing money from her superannuation account with AMP in May 2020 (which eventually did not occur), as well as their discussions in May about Amy’s desires for end of life care. The questions were basically directed to the proposition that Palisa did not doubt her mother’s capacity and understanding of these matters, with the inference that the same could be said when she executed the Thai will on 24 June 2020.

49. My impression was that Palisa sought to deflect that proposition by saying that Bob was heavily involved in all those matters, while adding (unresponsively) that Bob was accusing Palisa of funnelling the superannuation monies to herself. Thus, on the one hand, Palisa was saying that Bob was deeply involved, while maintaining that Bob was becoming more distant from her based on his suspicions.

45. On Amy’s end of life discussions, Palisa emphasised that her mother was very sensitive about the matter because her mother’s father had experienced difficulties back in 2015 and she was also conscious that her mother’s mother had suffered from cancer, so this informed Amy’s views about not being intubated.

46. Finally, it is necessary to say something regarding Palisa’s evidence concerning her assets and liabilities, which was directed to her family provision claim. There were clear gaps and shortcomings in that evidence. This included her omission to disclose significant sums of money she had received from what she described as “ad hoc” projects, the value of which exceeded $130,000 in a fairly recent 12 month period. Palisa also acknowledged that she had not attempted to obtain up to date valuations of either the Mosman Property or Boon Luck Farm. Her evidence relied upon far outdated valuations. When she was asked to explain these matters, Palisa said that the material had had to be gathered very quickly. Moreover, tellingly, she also added that she did not place “too much stock” in the family provision claim.

47. Palisa’s reference to time pressures overlooks the fact that, even though the family provision claim was only foreshadowed in June 2022, she had ample time and opportunity to update her evidence. Indeed, her fifth and final affidavit was filed on 12 October 2023, only shortly before the hearing commenced. I consider that the main reason why she did not make full disclosure of her assets had little if anything to do with time pressures, but rather reflected Palisa’s candid acknowledgment that her family provision claim was weak, an assessment which is also reflected in the little attention that claim received in her oral and written submissions.

(ii) Matt

53. Matt gave unchallenged evidence that during his stay in Bangkok between 29 January and 4 February 2020 (the last occasion on which he and his children saw Amy), Amy described him to a friend, Chayapa Praditphan, as “my son” and that when he corrected her and said that he was actually her son-in-law, Amy responded by saying: “No, you are my son”. This evidence relates to a period approximately five months prior to the execution of the Thai will and I give it little weight in assessing Amy’s testamentary capacity at that time. Amy’s confusion is perhaps understandable considering that this conversation took place in the mid-period of her hospitalisation after her brain cancer was detected. The evidence also needs to be weighed against all the other relevant evidence bearing upon Amy’s capacity when the Thai will was executed.

54. Matt acknowledged that in April 2020 he proposed that the main members of the Chat Thai Group each put in $100,000 to keep the restaurant chain afloat in the midst of the pandemic. He said he did not run this by Amy first, because he and Bob had agreed that he should go through Bob first before troubling Amy and she would get involved only if it was a matter of particular significance. I accept that evidence. It is clear that Bob was assisting Amy throughout this period with the administration and operations of the Chat Thai Group.

55. Matt was asked to explain why Amy had no shareholding interest in Chat Thai NB, where the shares were held by Palisa and him alone. He said that he believed that Amy was not told that she did not have an ownership interest, but he hastily added that he made it clear that the revenue from Chat Thai NB would be available across all the restaurants. Matt added that, in his opinion, the wider Chat Thai Group would not have performed as well without the extra revenue from Chat Thai NB.

56. Finally, Matt gave detailed evidence concerning his acknowledgment that he and Pat did not get along well together. I accept that evidence.

57. I found Matt to be a truthful witness but his evidence is of limited value in assessing Amy’s testamentary capacity.

The second defendant’s witnesses

58. I shall now summarise and assess the evidence given by Pat’s principal witnesses, all of whom were cross-examined.

(i) Bob’s evidence

59. Bob gave his evidence with the assistance of an interpreter. I found him to be a truthful and responsive witness and I accept his evidence without reservation. He listened carefully to the interpreter and gave his answers confidently and frankly, while making appropriate concessions. He was subjected to a searching cross-examination and maintained his composure throughout. As will shortly emerge, I reject the challenges to his credibility.

60. When working in Australia for about 10 years from 1982 to 1993. Bob had several jobs, including as a housekeeper of a hotel and a carpark attendant. He also helped Amy with her cooking business. In cross-examination, he was asked several times why he did not refer to Hua Hin Farm by its real name, “Palisa Farm”. He gave an adequate and acceptable explanation that he referred to it by its geographical and not personal name.

61. Bob gave consistently firm evidence that while he would assist Amy by sending LINE app messages on his phone when they were talking in a group, he never used Amy’s email to send any messages. This assumed particular importance later in his cross-examination when it was suggested to him that an email written in the third person and ostensibly sent by Amy on 23 January 2020 (shortly after she had been admitted to hospital in Bangkok) was actually written by him. He repeatedly denied having written the email, which was about rent for one of the Chat Thai restaurants. He said that he had had a discussion with Amy when she was in Sydney in what must have been late December 2019 regarding rent on one Sydney property which was owned by a landlord based in Thailand. He agreed at her request to speak to the landlord about rent and he said he also prepared a spreadsheet on rents to help her. I reject any contention that Bob drafted and sent the email and not Amy herself.

62. Bob was closely questioned about a reference in his affidavit to Amy thinking about obtaining life insurance in Thailand. He corrected that reference to say he meant to say health insurance. He said that Amy had raised with him the desirability of them both getting health insurance, not life insurance. I accept that evidence.

63. Bob was closely questioned about the Australian will which Amy first showed him in November 2018. Bob repeatedly said that he saw it as his duty as executor to keep the terms of any will secret until Amy died. He added that he well knew that a person is at liberty to change the terms of their will while they are alive. When Bob was pressed on his views as to the contents of the Australian will and the division of property between Palisa and Pat, he said that they were matters for Amy to determine, not him. I accept this evidence.

64. Bob acknowledged that after Amy was discharged from hospital in mid-February 2020, she sometimes had difficulty with motor function in her hands and could hold items longer sometimes than other times. I accept that evidence. It serves to demonstrate Bob’s preparedness to acknowledge aspects of the evidence which cast some (limited) doubt on Amy’s physical and/or mental health at a particular time.

65. There was a lengthy cross-examination of Bob regarding a Chat Thai Group meeting (which included Amy) held on 3 March 2020. It was attended by various Chat Thai employees (either in person in Bob’s home or via the LINE app). After the meeting, Bob prepared a written summary of the meeting and distributed it on the LINE app. A wide range of business matters were discussed. Amy was present for the whole meeting.

66. Bob gave unchallenged evidence that around April or May 2020 he and Amy discussed restructuring Chat Thai’s management so that Pat would be responsible for operations and employees and Matt would be responsible for sales and marketing. That evidence indicates that at that time Amy was actively involved in Chat Thai’s operations and was making decisions as the acknowledged leader of the Chat Thai Group. True it is that Bob was assisting her in this regard, but that does not derogate from the central and leading role which she continued to perform, despite her physical health problems and treatment.

67. There was an extensive cross-examination of Bob on the drafting of the Thai will, including the extent of Mr Kasemnate’s role in that process. The thrust of the questioning was evidently designed to have Bob agree that the only legal advice he received from the Thai lawyer was with respect to the practical steps of executing a will and that no or little advice was given on its contents. It is clear that Bob personally took on the task of drafting the will, relying upon parts of the Australian will. I accept Bob’s evidence that he showed Amy various drafts (of which there may have been two or three) to make sure they reflected her wishes. In addition to the discussion at the hospital with Mr Kasemnate present on 2 June 2020, I also accept Bob’s evidence that there were various telephone calls with Mr Kasemnate, with Amy participating, before Bob gave the final draft of the will to Mr Kasemnate to settle.

68. Finally, I accept Bob’s unchallenged evidence that, on 24 June 2020, “Amy appeared normal”. I regard this as significant supporting evidence as to Amy’s testamentary capacity. Bob and Amy were very close family members and he was in a unique position over many months to observe and assess the effects on Amy of the brain cancer and the treatment she was receiving. Bob freely acknowledged that there were periods when Amy was physically unwell. For example, he deposed to a conversation which they had in early June 2020 when Amy told him that she needed him to represent her for the Chat Thai Group as she was, in her own words, “currently ill and cannot work properly”. This does not mean, however, that she lacked testamentary capacity. Merely because Bob took on an increased role in assisting Amy in the conduct of the Group’s businesses and operation from about May 2020 does not demonstrate that Amy lacked testamentary capacity.

69. A controversial point relates to the omission of any reference in the Thai will to Palisa’s children. In Bob’s cross-examination, counsel made much of the fact that in [41] of his first affidavit Bob said that Amy’s intention was for Palisa’s children ultimately to inherit (some or all) of the land comprising Hua Hin Farm, but that it would initially be bequeathed to Pat with an expectation that he would pass it on to the children, presumably when they reach majority. Bob acknowledged that this particular wish was not carried through and he may have overlooked it in his drafting.

70. It needs to be borne in mind, however, that the evidence suggests that Amy’s deliberations were evolving throughout the period from around March 2020. Events were progressing and while it is clear that in May 2020 she ultimately wanted at least some of the farmland to eventually go to Palisa’s children, when she then gave instructions as referred to in [54] of Bob’s affidavit there was no reference to the grandchildren. It is open to conclude that she may have changed her mind (or simply trusted Pat).

71. Bob was criticised by counsel for not having kept a record of the discussions he had with Amy regarding the drafting of the will, or of the various meetings and discussions with Mr Kasemnate on that topic. This was contrasted with Bob’s evidence that his practice was to record discussions with Amy so that he could accurately implement any instructions she gave him. I believe this criticism of Bob was misplaced. I accept Bob’s evidence that he never expected that the Thai will would be controversial.

72. Bob was cross-examined at length about the conversation he had with Amy on 12 August 2020 when Matt raised the proposal to establish Chat Thai NB Pty Ltd. Bob agreed that he did not pass onto Amy that Matt had told him that the revenue from that operation would go to the Group generally. It was put to Bob that this was because he wanted to fuel Amy’s hostility towards Matt. Bob said that he did not believe Matt when he said that the revenue would flow to the Group and that he was vindicated by the fact that it did not happen afterwards. This evidence contrasts with Matt’s evidence where he claimed that the revenue flow from Chat Thai NB to the wider Group helped it survive COVID (see [54]-[55] above). I was not taken to any financial statements or accounts which reveal the true position. I do not consider that it is necessary to resolve this dispute between Matt and Bob.

73. There was also a lengthy cross-examination regarding Bob’s involvement in the sale of the Seaforth Property. He said he did not know when the Seaforth Property was on the market, nor did he know where the proceeds of sale went. Bob’s only knowledge of the property seems to be that it was referred to in the Australian will. I accept this evidence.

74. Palisa’s counsel made several other criticisms of Bob’s evidence. For the following reasons, I do not accept those criticisms. First, it was submitted that Bob’s evidence at [31] of his first affidavit (which relates to Bob’s observations of Amy in February 2020) that “Amy was alert and able to remember things that happened recently, as well as in the longer term past…” was “vague, and devoid of specificity”. The same criticism was directed at Bob’s evidence concerning Amy’s mental capacity around 14 February 2020 when she was discharged from hospital. Bob described her mental capacity then as being “normal as she was able to speak normally, although a little slower”.

75. I reject those criticisms. Bob’s description of his observations of Amy, with whom he was particularly close, were the kinds of observations which one would expect to be made about another family member in Amy’s condition. Nor were they lacking in particularity. For example, when Bob deposed that Amy knew what she wanted to do each day (referring to the period around when she was discharged from hospital on 14 February 2020), he explained that this meant that “she planned each day in advance, identified the tasks she wanted to do, and then did them, and I observed her speaking to Pat’s children regularly”.

76. Secondly, it was contended that the Court should give no weight to Bob’s evidence where he said:

In about April 2020, Amy started chemotherapy treatments which she continued to have once every three weeks which I accompanied her to. On the days Amy received chemotherapy, she would be tired and show some signs of physical weakness. However, Amy did not ever appear to have been mentally affected by her chemotherapy treatments. For example, she was able to recall the progress of her treatments. After a treatment, Amy and I would have a conversation in words to the following effect:

I said:      “How do you feel?”

Amy said:   “I’m okay.”

On other occasions, Amy would say words to the following effect: “I’m very tired.”

77. It was contended that, if this evidence was offered as affirmative proof that Amy had capacity, it is difficult to see how it corroborated the “basal premise” that “Amy did not ever appear to have been mentally affected by her chemotherapy treatments”. The submission fails to acknowledge the distinction between the physical and mental affects observed by Bob of Amy’s chemotherapy treatments.

78. Thirdly, in closing submissions, counsel referred to Bob’s evidence that, each time he produced a draft of the Thai will, he had Amy go through each paragraph and each sentence by reading them herself when Bob simultaneously moved his fingers along each sentence. Counsel submitted that it was significant that Bob never said that he asked Amy whether she understood what was being read.

79. This submission does not accurately reflect Bob’s oral evidence on this subject which, for completeness, was as follows:

Q.   Once you had a draft prepared, how did you confirm with Amy that that draft reflected what she wanted?

A.    INTERPRETER: So, each time I produced a draft of the will, we'd go and have Amy go through each paragraph, each sentence, to confirm that.  So I printed it out for her.

Q.   How did you know that she agreed with what was written on the page?

A.   INTERPRETER: So, I read it sentence by sentence for her to hear, and she would say, "Yes, okay, okay".

Q.   I observed, as you were providing that answer, that you were tracing your finger across the page.  Whose ‑ sorry, I withdraw that question.  As you were answering that question, you were tracing your finger across the page.  Was that a movement that you did, or was that a movement that Amy did?

A.   INTERPRETER:  So, I was following, pointing it out with my finger, and going along the line of his sentence, and Amy was reading what I was pointing out.

Q.   And how do you know that Amy was reading?

A.   WITNESS:  I saw her, when I ‑ when I read, and then I look at her.

80. A reasonable inference can be drawn from Bob’s description that he was satisfied that Amy understood what she was reading, as is reflected in Amy repeatedly saying “Yes, okay, okay”.

81. Fourthly, Bob’s evidence was criticised because, contrary to Bob’s evidence that he had prepared several drafts of the Thai will, Mr Kasemnate’s evidence was that he had only seen one draft. Counsel submitted that this meant “that Amy was, at best, given one opportunity to (allegedly) read the draft version of the 2020 will”. This submission is rejected. It seeks to have the Court infer from Mr Kasemnate’s evidence that he was only provided with one draft of the will and that, contrary to Bob’s evidence, Amy was also only shown one draft. I accept Bob’s evidence that he showed Amy more than one draft of the proposed will and had her read them in the way described above, but he provided only the final draft for Mr Kasemnate to settle.

82. Fifthly, I reject the claim that one particular part of Bob’s evidence is “wholly implausible”. This relates to Bob’s evidence under cross-examination regarding his statement that Amy had asked him in about early April 2020 why Matt’s name was in her will where in fact Matt’s name does not appear in the Australian will. In order to explain why I reject this submission, it is necessary to set out both [39] of Bob’s first affidavit and the relevant part of the transcript relating to the cross-examination of Bob on that paragraph:

On 4 April 2020, Richard sent an email to Palisa, Amy, Matt and myself with the draft clauses Palisa requested. The draft clauses gifted Amy's interest in the Mosman Property and Boon Luck Farm to Palisa and Matt which was not Amy's intention. Amy never wanted Matt to receive any benefit from her estate. After receiving the email, Amy said words to the following effect: "Why is Matt's name in the will?". A copy of this email is exhibited to me at page 18 of Exhibit KY-1.

83. The relevant part of the transcript is as follows:

Q.   …In any event, you give some evidence in paragraph 39 of your affidavit that after receiving Mr Mitry's email, Amy said to you words to the effect of, "Why is Matt's name in the will?"  Do you recall Amy saying that to you?

A.   INTERPRETER:  Yes, I remember that.

Q.   Had Amy forgotten what was, in fact, stated in that will?

A.   INTERPRETER:  Amy had not forgotten.  She knew that she had only given Palisa's name.

Q.   Well, if Amy knew what was in the will, Mr Yongpairojwong, why was Amy asking you after 4 April, "Why is Matt's name in the will"?

HIS HONOUR: I just don't follow this at all.  I must be missing something, because I thought that that's a reference to the clauses that were drafted‑‑

MAROYA: It is, your Honour.

HIS HONOUR: --by Mr Mitry.

MAROYA: It is, your Honour.

HIS HONOUR: Well, that's not the 2017 will.  That's some proposed codicils to the 2017 will.

MAROYA: Well, the way the evidence is given, your Honour, is different, with ‑ I appreciate your Honour's question, but the way the evidence is given by the deponent is different.

HIS HONOUR: You go ahead.

MAROYA

Q.   You report, in paragraph 39 of your affidavit, Mr Yongpairojwong, that Amy said words to you to the following effect, "Why is Matt's name in the will?"  Do you recall that?

A.   INTERPRETER:  Yeah, Amy was wanting to know why is it that Richard had written that Matt's name should be in the will as well.

Q.   Did you, at any time, tell Amy, "No, Matt's name is not in the will"?

CHAPPLE: I object to that question.

HIS HONOUR: Why?

CHAPPLE: He has just responded ‑ the witness has just responded that it was in reference to the email that was sent.  The question that is now being asked is not responsive to that answer.

HIS HONOUR: I think that’s a fair objection, if you want to rephrase the question.

MAROYA

Q.   Did you reassure Amy, Mr Yongpairojwong, that Matt's name was not mentioned in any will?

A.   INTERPRETER:  Are you referring to the 2017 will?

Q.   Yes, which was the only will in existence at the time.

A.   INTERPRETER:  Amy was the one who wrote the will.  I didn't know what ‑ initially, what she had written.  But Matt's name was not in the will.

84. I do not regard Bob’s evidence as “wholly implausible”. As was pointed out in an exchange with the Court during the course of the cross-examination, the relevant exchanges between Amy and Bob have to be viewed in context. They were directed to clauses which had been drafted by Palisa’s solicitor, Mr Mitry, with a view to them possibly being added to the existing Australian will. Thus when Amy asked why Matt’s name was in “the will”, she was plainly referring to the clauses drafted by Mr Mitry with a view to the Australian will being varied so as to clarify and confirm Amy’s intentions regarding the Mosman Property and Boon Luck Farm. Fairly viewed, she was not referring to the existing Australian will.

85. Pat called three Thai witnesses who gave evidence by audio visual link from Bangkok with the assistance of an interpreter, starting with the Thai lawyer, Mr Kasemnate. I will address their evidence in turn.

(ii) Mr Kasemnate’s evidence

86. Mr Kasemnate is an experienced Thai lawyer with 34 years’ legal practice. He said that he visited Amy in hospital on 2 June 2020 for the purpose of understanding her legal needs in making a will. Bob was also present. It is clear that Mr Kasemnate turned his mind to whether Amy had testamentary capacity (unsurprisingly so because he was visiting her in hospital for the stated purpose of providing legal advice on her desire to create a new will). He set out in his affidavit his personal observations that Amy (emphasis added):

1. looked like most people who had cancer. She had hair loss and looked skinny;

2. still had a good ability to do things herself;

3. moved and walked slower than normal people;

4. was able to communicate well and was in a good mood; and

5. clearly conveyed her instructions for her new will and did not appear confused.

87. When asked by the Court why he made those observations in his affidavit, Mr Kasemnate responded (through an interpreter) that because he was an “outsider” he wanted to record the status of Amy’s health “according to what I was seeing”. He continued that “…because a person that’s making a will, like, usually they should be in okay health. They should be able to communicate clearly, they should be understandable. If that wasn’t the case, I would not have advised her to make one”. This is compelling evidence that Mr Kasemnate, an independent and experienced lawyer, was conscious of the need to assess Amy’s capacity and that he proceeded to do so.

(iii) Ms Klaisoi’s evidence

88. Ms Klaisoi witnessed Amy execute the Thai will on 24 June 2020. She described herself as a friend of Amy. She is employed by Bob’s wife, June. I accept Mr Maroya’s submission that her work association with June may have affected her evidence because when she was repeatedly asked questions which she thought might harm Bob or June there were long pauses. She ultimately admitted that she and Amy were not close friends and that they had met about 10 times over two years for only about a minute or two each time.

89. It is not suggested that Ms Klaisoi did not witness Amy’s signature. I accept that she did. With no disrespect, however, I give Ms Klaisoi’s evidence little if any weight on the issue of Amy’s testamentary capacity.

(iv) Ms Srisomboon’s evidence

90. Ms Srisomboon is the other witness to the Thai will. Ms Srisomboon acknowledged she had not seen Amy for a year or so before she witnessed the will being executed. She had known Amy for many years and had a closer relationship with her than Ms Klaisoi. Significantly, in cross-examination, Ms Srisomboon said that based on her meeting with Amy on 24 June 2020, regarding her intentions underlying the will, she saw that Amy was “thinking like a business woman” and “she wants to get things organised”. I consider this provides some, albeit limited, weight regarding Amy’s capacity at the time. Ms Srisomboon’s observations are consistent with Amy attending to the arrangement of her affairs in a responsible and considered way.

(v) Fern’s evidence

91. Fern is a senior employee of the Chat Thai Group. She also became a shareholder of one of the Group companies. She described herself as Amy’s friend. This is borne out by the evidence.

92. Fern gave detailed evidence about the 3 March 2020 Chat Thai Group meeting, which she said was split into two parts. The first part of the meeting involved Amy, Fern and two other employees, with Bob being physically nearby although not actively participating at that stage. The second part involved more people in the discussion. Fern said that, during the meeting, the Chat Thai businesses were discussed at length, including management, employee roles, work times, job duties etc. She accepted that Bob was involved, particularly in the second part, and that he sent a summary of the meetings to the Chat Thai staff group on the LINE app. Fern agreed that Bob was giving Amy “considerable” assistance in the administration of the Chat Thai business.

93. When Fern was asked about her contact with Amy when she was in hospital during the period 20 January to 14 February 2020, she confirmed that they spoke “some” and that she received several messages from Amy to call her back. When asked whether her primary contact in this period was with Bob, she said that Amy messaged her if it was necessary to do so.

94. I accept Fern’s evidence. It provides further support for other witnesses’ evidence that, despite her physical health problems, Amy continued to be actively engaged in the Chat Thai businesses. She frequently contacted Fern about those matters in the period leading up to the execution of the Thai will, as well as subsequently.

Fern’s “ping pong” evidence

95. In view of the emphasis given in Palisa’s case to one aspect of Fern’s evidence with respect to the matter of Amy’s testamentary capacity, it is necessary to dwell at some length on the significance of voice messages left by Amy on the Chat Thai LINE staff group on 26 and 27 August 2020. In brief, counsel submitted that this evidence, which relates to events approximately two months after the Thai will was executed, involved Amy repeating herself within a short period. It was claimed that this indicated Amy’s declining cognitive functioning.

96. It is necessary to set out [23] and [24] of Fern’s affidavit:

On or about 26 August 2020, Amy left a voice message on the Chat Thai staff group chat about her son Kulphat Laoyont (Pat) looking after her in Thailand. Amy said words to the following effect: "Happy birthday Ping and Pong [staff members of Chat Thai]. Thank you for everything. Thanks for looking after Chat Thai and thanks for your love for Chat Thai. In this photo that I took, the doctor asked me to blow up the balloon. Breathing in and out with mindfulness. I am getting better and better at it. I am trying to treat myself and look after myself and Phi Gat [Pat] is also looking after me. He is spoiling me, making me feel warm and secured because I have Phi Gat here, he is like a representative of all of you. Phi Gat himself is thinking about work. He is going back because lots of work are waiting for him. Phi Gat is working here in the farm. He has to change himself. The job he has done, it's very beautiful, all the corners of the farm. I am glad to see that. Phi Gat is ready to go back to manage Chat Thai. I have taught him many things, many different things. So anyway, we may be talking constantly now. I love everyone, especially you Ping and Pong. Thank you and please look after [the business] for me. Happy birthday. I forgot to tell you, in the photo, the doctor told me it is called ping pong. It’s a medical equipment. I have to blow it. I have to take a deep breath and blow it out completely. Doing this whole day, it’s making my lung better and I am breathing better”. Amy’s voice was very clear when she spoke and she did not appear to be confused or have any issues with her memory or mental capacity. A recording of this voice message is exhibited to me and marked SK-1.B.

On or about 27 August 2020, Amy left me voice message about Pat taking over the running of the Chat Thai restaurants. Amy said words to the following effect: "Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know." Amy's voice could be clearly heard…. A recording of this voice message is exhibited to me and marked SK-1.C.

97. The reference at the end of [23] to the Exhibit marked “SK-1.B” is a reference to a recording of Amy’s voice message on 26 August 2020. The message was in Thai and was translated by Fern as set out in [23] of her affidavit.

98. In cross-examination, Fern was shown a copy of a screenshot dated 26 August 2020 of a LINE app chat. The screenshot shows a message was sent by Amy at 7.42pm on that day and comprised a photograph of a breathing apparatus, which included three coloured ping pong balls. Immediately beneath the photograph was an icon of a voice message from Amy lasting one minute and 52 seconds, which was sent at 7.44pm. There was a further voice message sent by Amy three minutes later at 7.47pm. In cross-examination, Fern confirmed that the message set out in [23] of her affidavit represented the first of Amy’s voice messages. She was then asked whether she remembered what Amy said in the second voice message, to which she responded:

The information that I put in my affidavit is the combination of both voicemail (sic). That’s the message of both voicemails together.

99. In other words, Fern was clearly stating that both these voice messages were included in the translation of those messages from Thai to English in [23] of her affidavit.

100. Fern was then shown a separate translation of the second voice mail from Thai to English. That transcription and translation of the second voice mail is as follows:

I forgot to mention that the doctor said that the thing in this picture is a ping pong. It is a medical device. It requires blowing, sucking deeply, and long blowing. Like this all day. Its made my lungs improve. I can breathe. I can breathe easier.

101. Fern said that the two voice messages had been posted to many more people than her, probably numbering more than 100. She explained that Amy’s voice messages related to birthdays being celebrated by two Chat Thai staff, one named Ping and the other named Pong. Fern was asked whether she thought it was “peculiar” that Amy told the recipients twice within a three minute period that “this thing was called a ping pong”.

102. After Dr Chapple objected to that question, Mr Maroya put to Fern that, in the first voicemail message, there was talk of “blowing the ping pong”, a proposition with which Fern agreed.

103. This affirmative answer by Fern seemed to then provide the foundation for Palisa’s submission that there was serious doubt about Amy’s cognition at this time because she had repeated herself within the space of three minutes about the ping pong machine.

104. For the following reasons, I reject Palisa’s contentions regarding these voicemail messages. First, contrary to what was put to Fern in cross-examination there was in fact no mention in the first voicemail that Amy was “practising breathing using the ping pong machine” or “blowing the ping pong machine”. The only reference to this subject in the first message as set out in the interpretation at [23] of Fern’s affidavit was that Amy had been asked by the doctor “to blow up the balloon”. The first message as set out at [23] of Fern’s affidavit does not contain any explicit reference by Amy to the “ping pong machine” in those terms, contrary to what the cross-examiner put to Fern. When Fern agreed with Mr Maroya’s description of this aspect of the first voicemail, I infer that she was simply substituting in her own mind the term “balloon” for the expression used by the cross-examiner, namely “ping pong machine”. The only reference in the first message to the words “Ping” and “Pong” are to the two Chat Thai staff members who were celebrating their birthdays on 26 August 2020.

105. Secondly, the contentions gloss over the fact that Fern gave clear evidence under cross-examination that she combined the two voice messages from Amy in [23] of her affidavit. I accept Dr Chapple’s submission that the second message starts with the sentence “I forgot to tell you…” in [23] of Fern’s affidavit.

106. Thirdly, Fern said at [24] of her affidavit that on or about 27 August 2020 “Amy left me” (emphasis added) a voice message about Pat taking over the running of the Chat Thai restaurants. She added that Amy also said words to the following effect:

Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know.

107. This voice message appears to have been sent to Fern personally (as is reflected in Fern’s use of the personal pronoun “me”), and not to a wider group as had occurred with the two voice messages sent at 7.44pm and 7.47pm on 26 August 2020. It may also be inferred from the 27 August 2020 voice message which Amy sent to Fern that Amy was conscious of the fact that she had made a mistake the previous day by sending her messages to a wider group of recipients, which was not her intention. She then rationalised, however, that this had happened and that she was not unhappy about her mistake because her message to the wider group broadcast her intention of having Pat become the leader of the Chat Thai Group. Far from this reflecting adversely on Amy’s cognition, her recognition of her mistake and her subsequent rationalisation that the mistake may in fact have had unexpected advantages provides evidence which supports Amy’s cognition at this time. That is further reinforced by the fact that, in sending the second message, with the reference to the doctor calling the machine “ping pong”, Amy displayed a good sense of humour and was demonstrating this quality in the context of her having sent birthday wishes to her employees Ping and Pong.

108. Fourthly, and for what it is worth, I do not see any significant differences between the interpretation of Amy’s second voice message sent at 7.47pm on 26 August 2020 as translated in the latter part of [23] of Fern’s affidavit and the separate translation which Mr Maroya used in his cross-examination of Fern relating to that second voice message. The differences reflect different but insignificant interpretations by two different interpreters of what Amy said in Thai.

109. I firmly reject Palisa’s submission that this evidence casts doubt on Amy’s cognitive functioning in the period 26-27 August 2020. Indeed, I draw the contrary inference for reasons explained above. I should add that the inordinate amount of time devoted to this issue, both in cross-examination and in closing submissions, indicated a degree of desperation in striving to identify any evidence which might allegedly cast doubt on Amy’s testamentary capacity.

(vi) Pat’s evidence

110. Pat swore four affidavits filed on 8 April 2022, 29 April 2022, 20 October 2022 and 27 September 2023. I do not accept Palisa’s contention that Pat was “a most unsatisfactory witness” who dissembled and was unprepared to make direct and frank answers to questions. I will explain why I reject those claims in the course of summarising Pat’s evidence (most of which I accept).

111. In his first affidavit, Pat described how he graduated in 2005 from the University of New South Wales with a Bachelor of Architecture. He said that he started to become involved in the Chat Thai business, particularly with new designs, branding, marketing and fit outs of the restaurants. He said that from about 2005-2007, he started to become involved in the “operations and management of Chat Thai”, and that he worked side by side with Amy in making executive decisions.

112. He said that Amy became unhappy with the direction of Boon Luck Farm after it was purchased in late 2015. He said that she told him she was frustrated because she told Pat that Palisa and Matt claimed that she did not know anything about farming.

113. Pat gave evidence that, during the period November 2018 – November 2019, he and Amy would talk about weekly operational issues relating to the Chat Thai businesses either in person, by LINE app messages, or texts. He said that his mother asked him for weekly updates on the financial performance of each business in the Chat Thai Group and that she was also frequently in contact with Sam, the executive chef. Pat said that his design team at his company called Archstallation also worked with Amy on the buildings at Hua Hin Farm and the development of its in house restaurant in relation to menu designs and graphics, as well as the logo design. I accept that evidence.

114. Pat described how he travelled to Bangkok on or about 23 January 2020 to visit his mother after she had been hospitalised. Pat annexed to his first affidavit various videos which he took of his mother when she was celebrating, for example, her birthday in Bangkok on 16 February 2020. Pat said that he came back to Sydney on 18 February 2020 but then returned to Thailand on 21 May 2020, where he remained with Amy until about mid-November.

115. Pat annexed to his first affidavit a copy of a video taken on 22 June 2020 of Amy attending a physiotherapy session of which he was also present. I will return to this and some other videos in due course.

116. Pat deposed that he was not involved in the making of the Thai will and did not become aware of it until after Amy died. I accept that evidence.

117. With regard to the transfer of Amy’s shares to him on 1 July 2020, Pat said that he and Bob signed the share transfer forms. He said that Amy told him that she wanted him to do the best job of looking after the Chat Thai businesses and that she trusted his decisions “like you have looked after our farm in Hua Hin”. I accept that evidence.

118. Pat gave evidence of Amy communicating with Sam in mid-July 2020, regarding the menu and promotions of the restaurant at Hua Hin Farm. He explained that the voice messages were no longer available but he exhibited screenshots of the voice messages to his first affidavit. Pat also gave evidence concerning Amy’s disappointment about Palisa and Matt opening Chat Thai NB and that she told him that she did not consent to them using the name Chat Thai.

119. Pat annexed to his first affidavit a copy of a video taken in October or November 2020 when he was driving Amy to her chemotherapy treatment. The video shows Amy singing one of her favourite Thai songs (see further below).

120. With Amy’s encouragement, Pat returned to Australia in mid-November 2020 shortly before Amy went into a coma.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of ‘unconscionable conduct’ referred to above was ‘directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security’. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].

256. Palisa provided no acceptable explanation for the failure to commence the family provision claim within time. There was a suggestion that she assumed that the bringing of the claim by an amendment to the FASOC was not opposed by the defendants. It was then suggested that Palisa only became aware of Pat’s opposition to time being extended when she was served with a copy of Pat’s outline of written submissions on 18 October 2023 in which it was made clear that an extension of time was opposed. No explanation was then provided as to why Palisa did not promptly arrange for an appropriate affidavit to be filed which explained the delay. Accordingly, the Court has no proper explanation for the lateness in raising the family provision claim. In these circumstances, and having regard to the weakness of the claim (which I will develop shortly), I consider that time should not be extended.

257. It is telling that, under cross-examination, when Palisa was asked why she did not use a particular valuation appraisal in preparing her affidavit in support of her family provision claim, she candidly answered:

To be honest, the family provisions claim is something that we didn’t put too much stock in.

258. It is not difficult to understand why Palisa lacked confidence in the family provision claim. As previously noted, this aspect of Palisa’s case was scarcely developed in her oral and written submissions. In particular, it is also notable that her written outline of closing submissions was entirely silent on the relevant criteria affecting the substance of the family provision claim.

259. When this lacuna was drawn to counsel’s attention in closing addresses, he simply said that Palisa relied upon her evidence in support of the claim. He added that the family provision claim was a “reasonable but modest one”. Counsel said that there was no question that Palisa was eligible to make a family provision claim, but apart from submitting that she had made contributions to Amy’s welfare as set out in her affidavit evidence, no specific submissions were made on Palisa’s behalf with reference to the 15 statutory criteria set out in s 60(2) of the Succession Act.

260. Counsel candidly accepted that Palisa’s financial disclosures were open to criticism as she had used old valuations of the two relevant Australian properties and he sought to deflect criticism of her omission to include details of the income she had received for her personal business activities, which were substantially independent of Chat Thai, on the basis that they were appropriately described as “ad hoc” engagements.

261. Counsel also submitted that any deficiencies concerning Palisa’s financial disclosures were “neutralised” by the fact that Pat omitted relevant details relating to the sale of the Seaforth Property. I reject that submission. The matters are entirely unrelated.

Relevant considerations in making family provision order

262. I shall now explain why, in any event, Palisa’s family provision claim would have failed.

263. There is no dispute that, as Amy’s daughter, Palisa is eligible to apply to the Court for a family provision order. However, in order to exercise its power to make an order for provision, the Court must be satisfied that adequate provision for her proper maintenance, education or advancement in life was not made by the deceased in her will (s 59(1)(c)). Only if the Court is satisfied that the provision to Palisa was not adequate, will the Court consider whether it is appropriate to make a family provision order (s 59(2)).

264. Section 60(2) of the Succession Act identifies 15 specific matters to which the Court may have regard, together with “any other matter the court considers relevant”, to determine whether to make a family provision order, and the nature of any such order.

265. As noted above, the Court was given no meaningful assistance in the written or oral submissions made on Palisa’s behalf as to why the relevant criteria favoured the making of a family provision order in her favour. Nevertheless, I will briefly address what appear to be the primary relevant criteria in the circumstances here.

Relationship between Palisa and the deceased (s 60(2)(a))

266. There is no dispute that Amy had a loving relationship with Palisa. Indeed, the nature and quality of their relationship is reflected in the provision that Amy made for Palisa in her will, being her interest in the Mosman Property and Boon Luck Farm.

Nature and extent of the estate (s 60(2)(c))

267. The estate and notional estate is moderately large and is in the order of $4.2 million.

Palisa’s financial resources (s 60(2)(d))

268. Palisa has had, and continues to have, a successful career, describing herself as a chef, restauranteur, farmer, writer and television host.

269. Palisa and Matt’s financial position is difficult to determine with any precision. They own an 88/100 interest in the Mosman Property and a 2/3 interest in Boon Luck Farm. Unhelpfully, Palisa did not provide a current valuation of those properties and was content to disclose the value of the Mosman Property in 2012 ($2.825 million) and the value of Boon Luck Farm in 2015 (being $1.35 million). She stated in cross-examination that she had made no attempt to obtain an appraisal for Boon Luck Farm, and that although she had obtained an “informal” appraisal of the Mosman Property some four to five years ago, she did not refer to that appraisal in her September 2023 affidavit.

270. The only documentary evidence before the Court of the value of each of those properties was tendered on behalf of Pat, being:

1. an appraisal from Ray White reflecting the present value of $4.5 million in respect of Boon Luck Farm; and

2. an appraisal from Di Jones reflecting a value of $8 million-$8.5 million in respect of the Mosman Property.

271. In addition to the lack of transparency as to the value of her real property holdings, Palisa did not disclose the value of her or Matt’s shares in:

1. Chat Thai CBD Pty Ltd;

2. Maps Whanau Pty Ltd (which owns Palisa Consulting Pty Ltd, BLF Trading Pty Ltd, and Chat Thai NB Pty Ltd);

3. Jarern Chai Pty Ltd;

4. Samosorn Pty Ltd; and

5. Boon Café Pty Ltd.

272. In cross-examination, neither Palisa nor Matt provided any evidence as to what those shares might be worth. At least in relation to Chat Thai CBD Pty Ltd, Palisa’s evidence is that she received $299,000 from that company in payment of director’s loans between 5 December 2022 and 28 September 2023. An easy inference can be drawn that if the company was capable of making repayments of that amount, it must have assets, or a consistent revenue stream.

273. Palisa is also a primary beneficiary of the Maps Whanau Trust. However, she was unable to provide a value of those trust assets.

274. Palisa asserts in her affidavit that she and Matt have various liabilities that total $4,584,349. However, during cross-examination, it emerged that they had two loans, for $1,324,466.17 and $1,284,091.22, which were secured on Boon Luck Farm and the Mosman Property, respectively. It may be that Palisa and Matt also have a further liability of $300,316 in respect of a personal loan, which was taken out to purchase machinery for Boon Luck Farm. They also have some credit card debts ($20,000) and a tax debt ($18,430). Thus, their total combined liabilities are in the order of $2,947,303.94.

275. Palisa and Matt disclosed a combined after tax income of $13,000 per month. Palisa stated that this is lower than the income that they received prior to the COVID-19 pandemic. However, Palisa accepted that in April 2022, she and Matt each received a net monthly income of $8,666 (a total of $17,332 per month after tax). She expressed confidence that her income would return to pre-pandemic levels, and “hopefully more”.

276. In addition to the disclosed income, Palisa received in excess of $132,000 from Palisa Consulting Pty Ltd in the 12 months prior to affirming her September 2023 affidavit. Although Palisa referred to the fact that she received “ad hoc” income from her consulting work, the extent of that income was not disclosed until it emerged during cross-examination.

277. During the cross-examination of Matt, it also emerged that payments had been made into their joint offset account from an account number ending 1294. That account is their “Boon Luck Farm Trading Account”. Between 11 November 2022 and 30 June 2023, transfers totalling $61,000 were made into their offset account from the Boon Luck Farm Trading Account:

1. $8,000 on 11 November 2022;

2. $5,000 on 1 December 2022;

3. $5,000 on 6 January 2023;

4. $7,000 on 16 January 2023;

5. $6,000 on 30 January 2023;

6. $10,000 on 21 February 2023;

7. $10,000 on 3 March 2023; and

8. $10,000 on 30 June 2023.

278. The purpose of these payments was not disclosed. It is unusual given Palisa’s assertion in cross-examination that they had not ever received a salary from the trading company operating Boon Luck Farm.

279. Palisa’s lack of transparency in disclosing her financial circumstances is significant. In order for the Court to determine whether a plaintiff is left without adequate provision, the Court must have, at least in broad outline, the whole picture regarding the financial position of the applicant (see Collings v Vakas [2006] NSWSC 393 at [66]-[68]; Stone at [58]-[66]; Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [29], [33]).

Palisa’s health (s 60(2)(f))

280. Palisa has no existing physical, intellectual or mental disability.

Palisa’s age (s 60(2)(g))

281. Palisa is 41 years of age. The success that she has enjoyed in her career to this point, would suggest that she has capacity to earn a comfortable income for the remainder of her working life.

Palisa’s contribution (s 60(2)(h))

282. The evidence demonstrates that Palisa made significant contributions to the successful operations of the Chat Thai restaurant operations, as well as advancing her own independent personal career. The evidence also demonstrates that she was adequately compensated for her contribution (see [272]-[277] above).

Amy’s testamentary intentions (s 60(2)(j))

283. Amy’s testamentary intentions are reflected in the terms of the Thai will, including her intentions regarding the division of her estate between Palisa and Pat.

Circumstances of the competing beneficiaries (ss 60(2)(b), 60(2)(d))

284. Pat owns a property in Cremorne as joint tenants with his wife Natasha (from whom he has been separated since 2017). Natasha continues to live there with their children. The total value of that property is estimated to be $3.16 million and is encumbered by a mortgage of $1.17 million. Pat and Natasha have not yet agreed a property settlement. In addition to his interest in the various Chat Thai companies, he has cash in the bank of $14,000 and superannuation of $139,000.

(vi) Conclusion as to appropriate provision

285. Palisa is 41 years old. She has built an impressive career and accumulated substantial assets. The net value of her disclosed assets is in excess of $9.8 million. Although her precise financial circumstances are somewhat opaque, an easy inference can be drawn from the multitude of enterprises with which she is involved that she is in a position to improve her financial position materially. In such circumstances, Brereton J stated in Taylor v Farrugia [2009] NSWSC 801 at [57] that:

… ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.

286. It is also relevant to take into account and give appropriate weight to the fact that the Thai will reflected considerable thought by Amy (see Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127] per White J). Amy made substantial provision for Palisa such that she and Matt will be the sole owners of the Mosman Property and Boon Luck Farm after receiving Amy’s share, which has an estimated value of $2.5 million. I consider that provision of this magnitude comfortably satisfies any moral obligation which Amy owed to Palisa.

287. For all these reasons, even if time had been extended, I would have dismissed the family provision claim.

E. Consideration and determination of Pat’s cross-claim

288. Having found that Amy had testamentary capacity and also had knowledge and approved of the Thai will, I am satisfied that Pat’s cross-claim should be upheld. The first relief sought in the cross-claim was an order that letters of administration with the Thai will annexed be granted to Pat. Alternatively, an order was sought that probate of the Thai will in solemn form be granted to Bob. I think it appropriate to grant the alternative order, which gives effect to Amy’s testamentary wishes.

289. In [8] of the statement of cross-claim filed on 25 February 2022, it was stated that notice of Pat’s intended application for letters of administration would be published. My attention was not drawn to any evidence which suggested that this had in fact occurred.

290. Under s 42(2) of the Probate and Administration Act, notice of an application of probate is to be published in a manner prescribed by the rules, and, in the case of an application made by way of cross-claim, within the period prescribed by the rules in relation to such an application. The relevant rules are set out in rr 3 and 6 of Pt 78 of the Supreme Court Rules 1970 (NSW). Sub-rule 6(3) provides that where an application for a grant of probate is made by cross-claim, the cross-claimant must publish notice of the application within 28 days after filing the cross-claim in accordance with r 3. Rule 3 then specifies the particulars of such a notice.

291. Provision is also made in s 42(4) of the Probate and Administration Act for the Court, by order, to direct that any partial or total failure to comply with the requirements relevantly in s 42(2) shall not bar the granting of probate.

292. To the extent that there has been a partial or total failure to comply with those requirements, I believe that this should not be a bar to the making of the alternative order sought in the cross-claim. It appears that all relevant and interested persons have been on notice since the cross-claim was filed in early 2022 that Pat was seeking the alternative relief described above. There was no evidence which suggested that Amy had any creditors who might have claims on her estate.

293. In these circumstances, the alternative relief sought in the cross-claim should be granted.

F. Costs

294. In the FASOC, Palisa sought an order that her costs be paid out of Amy’s estate on an indemnity basis insofar as her application for letters of administration with the Australian will annexed is concerned. With respect to her family provision claim, Palisa sought an order that her costs of that application be paid out of the Amy’s estate and/or notional estate.

295. In the statement of cross-claim, Pat sought an order for costs.

296. In closing address, when the Court invited counsel for both parties to make submissions on costs, Dr Chapple submitted that there was “a fair argument” that, at least until the lay evidence had been served, the circumstances were such as to reasonably lead to an investigation of the circumstances surrounding the execution of the Thai will. Accordingly, he submitted that Amy’s estate should bear both Palisa and Pat’s costs, but thereafter Palisa should pay his costs on an ordinary basis. As to Palisa’s family provision claim, Dr Chapple submitted that if Palisa was unsuccessful, costs should follow the event. Dr Chapple said that these submissions were made without instructions.

297. Also speaking without instructions, Mr Maroya said that there was “a lot to commend” in Dr Chapple’s submissions on costs, at least conceptually.

298. In these circumstances, I should explain the basis upon which I am tentatively minded to make particular costs orders. I had hoped to avoid the parties incurring yet further costs, but because neither counsel had instructions on the matter some opportunity should be given for them within 14 days hereof to make brief written submissions on costs (not exceeding three pages in length), should they so wish, in light of what I am about to say. In the event that there is a dispute, final orders as to costs will be made on the papers.

299. As is well known, under s 98 of the Civil Procedure Act 2005 (NSW), the Court has a discretion to order by whom, to whom and to what extent costs are to be paid, either on an ordinary or indemnity basis (s 98(1)), subject to the general rule that costs should follow the event (Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1)). Section 98(6) of the Civil Procedure Act makes it clear that the reference to costs in the provision includes “costs of the administration of any estate or trust”.

300. There are exceptions to the general costs rules, as confirmed in Shorten v Shorten (No 2) [2003] NSWCA 60 at [15], where Mason P held (Meagher and Sheller JJA agreeing) that the basic costs rules apply in contested probate litigation unless there is a situation (citing Estate of Hodges at 709 per Powell J):

1. where the testator has, or those interested in the residue, have caused the litigation, the costs of unsuccessfully opposing probate may be paid out of the estate; or

2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them.

301. Mason P emphasised in Shorten (No 2) that the categories are “not coterminous” and “remain conceptually distinct”.

302. As raised by the FASOC here, a testator may come to “cause” opposition due to a need to investigate and/or question testamentary capacity. As Giles JA and Brownie AJA held in Perpetual Trustee Company Limited v Baker [1999] NSWCA 244 at [13]-[14]:

Costs are in the discretion of the Court, and the established principle on which the discretion as to costs will normally be exercised is that costs follow the event. In probate litigation, in particular, however, exceptions have been recognised, one being that where the testator has been the cause of the litigation the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate, and another being that if the circumstances led reasonably to an investigation concerning the testator's will the costs may be left to be borne by those who incurred them (see for example in the estate of Hodges: Shorter v Hodges (1988) 14 NSWLR 698 at 709).

The two exceptions tend to overlap. As was said by Santow J in In the estate of Moyle: Moyle v Moyle (18 June 1988, unreported), if a testator is by his mental frailty and other circumstances in a position where the circumstances reasonably call for investigation of the validity of the will "in one sense the testator, though usually with no sense of blameworthy fault, has by his or her conduct caused the litigation to occur". A party reasonably but unsuccessfully propounding or challenging the will, and so bringing about the necessary investigation, should no more have to bear his own costs than pay the costs of the other party. So it has been said that where the conduct and habits and mode of life of a testator have given ground for questioning his testamentary capacity the costs of the unsuccessful party should be paid out of the estate, as distinct from being left to be borne by that party (Davies v Gregory (1873) 3 P & D 28; Roe v Nix (1893) P 55; In the will of Millar (1908) VLR 682), and the costs of both sides in testamentary capacity cases have often been allowed out of the estate (In the will of Severs (1887) 13 VLR 572; Phillips v Dundas (Smith J, VSC 4 December 1995, unreported); Redroff v Miegoch (Santow J, NSWSC, 22 April 1996, unreported); re Ryan: Williams v Ryan (1998) VSC, 109; In the will of Ryan: Williams v Ryan (Byrne J, VSC, 23 October 1998, unreported); cf Middlebrook v Middlebrook (1963) 26 ALJR 216 where Dixon CJ and McTiernan, Taylor and Owen JJ ordered that the parties bear their own costs but Menzies J would have ordered that the costs be paid out of the estate).

303. Middlebrook v Middlebrook (1962) 36 ALJR 216 is an illustration of a case where the Court found that an investigation reasonably needed to take place and, even though the plaintiff’s challenge was unsuccessful, costs of the investigation and challenge were ordered to be paid by the estate.

304. Another example is Shorten v Shorten [2001] NSWSC 100, where the deceased suffered brain damage after a stroke and, though she had testamentary capacity when executing the will and probate was ordered to be granted, the Court concluded that the investigation into the will was reasonably warranted and all costs were ordered to be paid out of the estate.

305. Applying those principles to the circumstances here, I accept Dr Chapple’s tentative proposal that Amy’s estate should bear both Palisa and Pat’s costs on an ordinary basis up until the last of the substantive (i.e., excluding affidavits by translators and solicitors) lay affidavits were filed (excluding affidavits in respect of the family provision claim). That date is 3 March 2023.

306. It is also necessary to address the costs of the two expert medical reports. As noted above, in the directions hearing before Hallen J on 4 July 2022, his Honour expressly reserved the question of the costs of each expert’s report. The transcript of that directions hearing makes clear that his Honour adopted this course because he described each of the experts as “an ex post facto expert, not a treating expert”. His Honour highlighted that this was one of the problems created by the plaintiff having “rushed out” and obtained expert evidence without first obtaining the Court’s leave in accordance with Practice Note SC Eq 5. It is stated there that the effect of UCPR r 31.19 is to require a party who is considering or intending to adduce expert evidence to seek directions from the Court. Moreover, prior to that, the parties are required to confer in an endeavour jointly to retain one expert, or one expert per issue.

307. In light of Hallen J’s observation (with which I respectfully agree) and my own findings concerning the limited value of the expert evidence, I consider that it is appropriate that Palisa bear the costs of obtaining both those reports.

308. Turning now to the question of costs of Palisa’s unsuccessful family provision claim, different considerations apply. As Gaudron J held in Singer v Berghouse [1993] HCA 35 at [6]:

Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, [Act since repealed] makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position…And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate…

309. The Succession Act now guides the Court’s discretion on costs involved in family provision applications. By s 99:

99   Costs

(1)   The Court may order that the costs of proceedings under this Chapter in relation to the estate or notional estate of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.

Note—

Section 78 sets out the circumstances in which the Court may make a notional estate order for the purpose of ordering that costs be paid from the notional estate of a deceased person.

(2)   The regulations may make provision for or with respect to the costs in connection with proceedings under this Chapter, including the fixing of the maximum costs for legal services that may be paid out of the estate or notional estate of a deceased person.

(3) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.

310. As per the Note in s 99, s 78 provides for the circumstances in which the Court may make a notional estate order such that costs may be paid from the notional estate of a deceased person:

78   Notional estate order may be made only if family provision order or certain costs orders to be made

(1)   The Court may make an order designating property as notional estate only—

(a)   for the purposes of a family provision order to be made under Part 3.2, or

(b)   for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person.

Note—

Section 63(5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person.

Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person.

(2)   The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant’s costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.

311. Under these statutory provisions, irrespective of the outcome of Palisa’s application for a family provision order, the costs of her application may be paid out of the estate, subject to any guidance or precedent provided by the case law.

312. Gaudron J’s statement of principle in Singer, that the costs order must do justice to the overall estate, has been frequently relied upon. In elucidating its application, Beazley P (McColl and Gleeson JJA agreeing) in Salmon v Osmond [2015] NSWCA 42 at [174] stated:

…the “overall justice of the case” referred to by Gaudron J is “not remote from costs following the event”: Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional “liberality and discrimination” in considering whether to exercise discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].

313. Meagher JA (Macfarlan and Leeming JJA agreeing) more recently considered the requisite costs exercise in Haertsch v Whiteway (No 2) [2020] NSWCA 287, stating at [5]-[7], [9] and [11]:

It is well established that family provision applications “raise different issues with respect to costs” to those raised by other proceedings: Salmon v Osmond [2015] NSWCA 42 at [172] (Beazley P, McColl and Gleeson JJA agreeing). The liberal approach to costs in such cases has a long provenance, though reference is now typically made to remarks of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709, to the effect that “costs in family provision claims generally depend on the overall justice of the case” and that it is “not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position”. Indeed, in some jurisdictions it would seem that no order as to costs is the usual or general consequence of an unsuccessful application: Bowyer v Wood (2007) 99 SASR 190 at 210, 211; [2007] SASC 327; Underwood v Underwood [2009] QSC 107 at [32]-[33].

However, as Giles JA observed in Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Handley and McColl JJA agreeing), the “overall justice of the case” is “not remote from costs following the event”. For one thing, the default rule encourages prospective applicants for provision to have regard to the significant costs consequences to themselves of making such an application. But while the default rule in r 42.1 applies to family provision proceedings, its application remains subject to the court exercising greater than usual “liberality and discrimination” in deciding whether to depart from it: Salmon v Osmond at [174] (Beazley P, McColl and Gleeson JJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [26]-[27] (Basten JA, Gleeson JA agreeing); [138]-[139] (Barrett JA, Gleeson JA agreeing).

It is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant’s costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline: see eg, with no attempt to be exhaustive, Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Raiola v Raiola [2014] NSWSC 1172; Purnell v Tindale [2020] NSWSC 746.

…

The impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs to which they are otherwise entitled: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [26]-[27]. However, the irrelevance of impecuniosity is said to be “subject to some relaxation in family provision cases”: Chapple v Wilcox at [141]. One reason that the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance is that adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application: McCusker v Rutter [2010] NSWCA 318 at [34]. That consideration is of little or no relevance to this case: the plaintiff’s claim failed for reasons unrelated to her financial position and no further application for provision could possibly succeed.

…

Although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even “borderline” questions of judgment. That is one reason for the more liberal approach to costs: Re Sherborne Estate (No 2) at 279; Moussa v Moussa at [8]. Those observations are typically directed to the evaluative and discretionary judgments as to what would constitute adequate provision for the applicant’s proper maintenance, education or advancement. The plaintiff’s application did not fail for that reason; indeed, it succeeded before the primary judge and it is not obvious that the grounds of appeal directed to those exercises of judgment would have been upheld, had they been addressed.

314. Having regard to these principles, the patent weakness of Palisa’s family provision claim and the unfavourable outcome of that claim, I consider it appropriate that she bear Pat’s costs with respect to that claim.

315. The costs of the unsuccessful mediation also need to be addressed. I consider it is appropriate that Palisa and Pat share those costs. Accordingly, there will be no order as to costs relating to the mediation.

316. The unfortunate failure of the mediation warrants another comment. The Court was advised that the total estimated legal costs of the parties in this proceeding is approximately $1.5 million. On its face, that is an extraordinary amount relative to the value of Amy’s estate. Naturally, I am not privy to the interstices of the mediation but the proposed orders on costs in this proceeding will hopefully encourage other disputants to avoid protracted and costly legal proceedings in similar testamentary and related matters.

G. Conclusion

317. For these reasons, I propose the following orders be made:

1. The further amended statement of claim filed on 17 June 2022 be dismissed.

2. The first cross-claim filed on 25 February 2022 be allowed.

3. Under s 42(4) of the Probate and Administration Act 1898 (NSW) any partial or total failure to comply with the requirements of ss 42(2) and (3) shall not bar the granting of probate.

4. Probate of the will of the late Amonrat Chanta dated 24 June 2020 be granted in solemn form to Kijchai Yongpairojwong.

5. Unless any party objects within 14 days hereof, the following orders apply as to costs:

1. for the period up until 3 March 2023, the estate of the late Amonrat Chanta bear the costs of the parties, excluding the costs of the two expert medical reports;

2. the plaintiff pay the second defendant’s costs thereafter, including the costs of the family provision claim;

3. the second cross-defendant pay the costs of the cross-claimant with respect to the cross-claim filed on 25 February 2022.

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Decision last updated: 10 November 2023