Antov v Bokan - [2018] NSWSC 1474

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Antov v Bokan [2018] NSWSC 1474
Hearing dates: 12 April 2018; 24 and 30 May 2018; 7 June 2018; 12-14 June 2018; 22 June 2018
Date of orders: 03 October 2018
Decision date: 03 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Plaintiff’s further amended statement of claim be dismissed with costs.
2.   Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect.
3.   Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.

Catchwords:
ESTOPPEL – Promissory estoppel – Plaintiff claimed to have relied upon expectation or assumption created by representations by the deceased that upon sale of her property at Granville the plaintiff would be entitled to use of the proceeds and that the deceased would leave her entire assets as a gift to the plaintiff – Representations allegedly contained in a Macedonian Power of Attorney and Contract for a Gift allegedly executed by the deceased in October 2009 – Whether the documents, if authentic, contained the pleaded representations – Whether the plaintiff relied on the representations as pleaded such that detriment would now be suffered if the expectation or assumption not fulfilled – Held plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded – Claim for relief on basis of promissory estoppel dismissed

EQUITY – Undue influence – Presumption of undue influence where documents executed by grandparent in favour of grandchild – Held presumption had not been rebutted in relation to Macedonian Power of Attorney – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect
EQUITY – Unconscionable conduct – Whether execution by the deceased of the Macedonian Power of Attorney was affected by unconscionable conduct – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Evidence Act 1995 (NSW), ss 48, 49, 51, 55, 56, 57, 58, 67, 68, 69, 183
Guardianship Act 1987 (NSW)
Limitations Act 1969 (NSW)
Powers of Attorney Act 2003 (NSW), s 16
Practice Note SC Eq 7
Succession Act 2006 (NSW), ss 59, 95
Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 6.4, 31.3, 31.5, 36.4
Cases Cited: Antova v Bokan [2017] NSWSC 115
Antova v Bokan (No 2) [2017] NSWSC 556
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Attorney-General (Hong Kong) v Humphreys Estate [1987] 1 AC 114
Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 2017 FCR 448; [2012] FCA 1355
Arfaras v Vosnakis [2016] NSWCA 65; (2016) 18 BPR 35,819
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14
Barnes v Alderton [2008] NSWSC 107
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Bobolas v Waverley Council (No 4) [2015] NSWCA 337
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broadlands International Finance Limited v Sly (Supreme Court (NSW), Foster J, 24 April 1987, unrep)
Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26
Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33
Chong v CC Containers Pty Ltd (2015) 49 VR 402 at 465; [2015] VSCA 137
Commercial Bank of Australia Ltd v Amadio (1993) 151 CLR 447; [1983] HCA 14
Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; (2014) 17 BPR 33,457
Cooper v Hobbs [2013] NSWCA 70
CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798
d’Apice v Gutkovich (No. 2) [2010] NSWSC 1333
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389
DHJPM Pty Ltd v Blackthorn Resources Limited (2011) 83 NSWLR 728; [2011] NSWCA 348
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
DPP v Pinn [2015] NSWSC 1684
Fabre v Arenales (1992) 27 NSWLR 437
Ghosn v Principle Focus Pty Limited (No. 2) [2008] VSC 574
Giannarelli v Wraith (No 2) (1991) 171 CLR 592; [1991] HCA 2
Gibbons v Wright (1953) 91 CLR 423; [1954] HCA 17
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215
In the matter of Ledir Enterprises [2013] NSWSC 1332; 96 ACSR 1
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41
Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305
MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607; 96 ACSR 691
Multisteps Pty Ltd v Specialty Packaging Aust Pty Ltd [2018] FCA 587
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249
National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; 67 ALJR 170
O’Meara v Dominican Fathers (2003) 153 ACTR 1; [2003] ACTCA 24
Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Re Williams [1917] 1 Ch 1
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148; [1910] HCA 39
Spence v Demasi (1988) 48 SASR 538
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Sullivan v Sullivan [2006] NSWCA 312; [2007] ANZ Conv R 54
Szozda v Szozda [2010] NSWSC 804
Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Tyne (Trustee) v UBS AG (No 2) (2017) 250 FCR 341; [2017] FCAFC 5
Urquhart v Lanham [2002] NSWSC 119
Vale v Vale [2001] NSWCA 245
Walsh v Walsh [2012] NSWCA 57
Walsh v Whitcomb (1797) 2 Esp 565; 170 ER 456
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7
Wentworth v Lloyd (1884) 19 HL Cas 589; 11 ER 1154
Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540
Wingrove v Wingrove (1885) LR 11 PD 81
Winter v Crichton (1991) 23 NSWLR 116
Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Publishing)
Australian Law Reform Commission, Evidence, Report No 26 (1985)
G E Dal Pont, Powers of Attorney (2nd ed, 2015, LexisNexis)
M Leeming, “‘Not slavishly nor always’ – Equity and Limitation Statutes” in P Davies, S Douglas and J Goudkamp (eds), Defences in Equity (Hart Publishing, 2018), 293
P Watts and FMB Reynolds, Bowstead and Reynolds on Agency (21st ed, 2018, Thomson Reuters)
Stephen Odgers, Uniform Evidence Law (10th ed, Thomson Reuters, 2012)
Category: Principal judgment
Parties: Vase Antov (Plaintiff)
Lidija Bokan (First Defendant)
Radmila Antova (Second Defendant) (Submitting appearance)
Representation:
Counsel:
M Sahade (Plaintiff)
MJ Heath (First Defendant)
Solicitors:
Oliveri Lawyers (Plaintiff)
Matthews Folbigg (First Defendant)

File Number(s): 2015/00331929
Publication restriction: Nil

Judgment

HER HONOUR: In these proceedings (which have a convoluted procedural history to which I will refer in due course) the plaintiff, Vase Antov, seeks declaratory and other relief in relation to certain property at Granville (the Granville property), which he claims is held on constructive trust for him. That claim is based on representations contained in two documents allegedly executed in Macedonia by his late grandmother (Ljubica Dimitrovska) in October 2009. For convenience, and without intending any disrespect, I will refer to the respective family members by their first names.
Vase claims to have relied on the alleged representations (in carrying out renovations and improvements to the Granville property and in living at the Granville Property with his grandmother and mother from about May 2010 until his grandmother’s death on 17 November 2014, during which period he says he assisted his grandmother “with the cost of living”), so as to give rise to an entitlement on his part to receive an unencumbered transfer of the Granville property invoking the principles of promissory estoppel.
The Granville property is the principal asset of Ljubica’s estate (though, for completeness, I note that Vase also claims that the balance of Ljubica’s estate is held on constructive trust for him).
The first defendant, Lidija Bokan, is the executor of Ljubica’s estate and one of Ljubica’s two daughters. The second defendant (formerly the first plaintiff in these proceedings but who is now joined as the second defendant, for reasons I will explain in due course, and who has filed a submitting appearance) is Ljubica’s other daughter (and Lidija’s half sister), Radmila Antova. Radmila is Vase’s mother.
The two documents on which Vase’s claim rests (the authenticity of both of which was challenged by Lidija) are both in the Macedonian language: a document translated as being headed “Power of Attorney” dated 13 October 2009 (to which I will refer as the Macedonian Power of Attorney) and a document translated as being headed “Agreement for a gift” dated 14 October 2009 (to which I will refer, consistently with the terminology used in the amended statement of claim, as the Contract for a Gift) (see the translation of those documents by an accredited interpreter, Ms Slavica Božinoska, contained in Exhibit 6). Each of those documents is said to have been executed by Ljubica in Macedonia (by the imprint of her thumb on the document), on the respective dates the documents bear, in the presence of a public notary and two witnesses (Mr Mirče Danilov and Ms Letka Kostovska). The documents are said to have been prepared on Ljubica’s instructions by a lawyer in Macedonia (Mr Zarko Dabeski). I set out the text of those documents in due course (see [151]-[157] below).
It was emphasised by Counsel for Vase in closing submissions that Vase relies upon both documents to establish his case – i.e., he does not attempt to rely upon one without the other. It was said (though I am not convinced that this is necessarily the case and, indeed I have concluded otherwise) that, in the way that the case has been conducted, it would not reasonably be open for there to be a finding that one of the documents is authentic but not the other (see plaintiff’s written closing submissions at [4]). In any event, in oral closing submissions, Counsel for Vase made it clear that if the Contract for a Gift is not found to be an authentic document then “this case would simply not be pressed further” (see transcript of 22 June 2018 at T 2.3-2.5).
In Lidija’s defence to the claim (pleaded in her further amended defence filed 2 March 2018), among other things, Lidija denies the authenticity of the two documents on which Vase’s claim is based (see [3(b)], [4(c)], [6(a)], [7]); denies the capacity of Ljubica to make the alleged Macedonian Power of Attorney ([4(c)(ii)]; [6]) and the alleged Contract for a Gift ([8(a)]); and raises issues of presumed undue influence, actual undue influence and unconscionable conduct. Lidija also raises defences of estoppel, laches and acquiescence, as well as invoking the principles of Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) and abuse of process. The Anshun estoppel and abuse of process defences (made only in the latest amendment to the defence) arise out of the circumstances in which family provision claims brought by Radmila and Vase were settled between the parties (though apparently not finally disposed of) at a time prior to the bringing by Vase of his current claims (which is part of the convoluted procedural history of this litigation to which I have adverted above).
Lidija has cross-claimed seeking declarations, among others, that each of the Macedonian Power of Attorney and the Contract for a Gift was procured by undue influence and/or unconscionable conduct by Vase (and/or his mother, Radmila); and that Ljubica lacked capacity to execute those documents.

Summary

For the reasons set out below, I dismiss Vase’s claims. In summary, and applying the heightened standard of satisfaction indicated by Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 to this issue, I am not persuaded that the Contract for a Gift is an authentic document. I consider that it is most likely to have been brought into existence some time in 2016 – after Vase had discovered in 2014 that the Macedonian Power of Attorney was not (as he seems at least as at late November 2014 to have thought) a will and was not effective to transfer to him the whole of Ljubica’s estate; and after he had accepted, at a March 2016 judicial settlement conference, that his family provision claim should be dismissed. Certainly, the existence of the alleged Contract for a Gift was not disclosed to Lidija until Vase filed and served his affidavit sworn 26 July 2016 when resisting Lidija’s application to enforce the agreement reached at the March 2016 settlement conference.
In any event, whether or not the Contract for a Gift was brought into existence at that late stage or was brought into existence at some earlier time, I am satisfied to the requisite standard that it was not a document executed by Ljubica on 14 October 2009 as alleged by Vase. That is sufficient, as conceded by Vase, to dispose of his claims.
In those circumstances it is not strictly necessary separately to determine Lidija’s cross-claim. However, in respect of that cross-claim, I find that a presumption of undue influence exists (and has not been rebutted) and that there was unconscionable conduct on the part of Vase in relation to the execution of the Macedonian Power of Attorney. The claims of undue influence and/or unconscionable conduct on the part of Radmila were not pressed in any substantive way at the hearing (at which Radmila was neither present nor actively represented) and it is not appropriate to comment further on those claims.
Finally, while I consider that the circumstances in which the promissory estoppel claim was brought by Vase (by the filing without leave of his amended summons, in what had been commenced as family provision proceedings, after agreement had been reached for the settlement of the whole of the proceedings and claiming an interest wholly inconsistent with the claim for family provision that had been made by him in those proceedings) did amount to an abuse of process on his part, and that there is no issue estoppel precluding Lidija from now raising that issue, it is not necessary to determine the matter on that basis. That is because the claim, as brought by Vase, fails on its merits. (Similarly, the defences based on an estoppel other than Anshun estoppel, laches or acquiescence, take the matter no further.)
While I have real doubts as to the capacity of Ljubica to grant the Macedonian Power of Attorney in favour of Vase (which I find on the balance of probabilities to be an authentic document) as at 13 October 2009, I am not satisfied that lack of capacity has been established on the limited medical evidence available.

Background

It is necessary to set out the background to the present dispute in some detail (some but certainly not all of which is drawn from a Statement of Agreed Facts – Exhibit A). The Statement of Agreed Facts was prepared for the purpose of the hearing (on 12 April 2018 at the commencement of the final hearing, which was accelerated in order to accommodate Vase’s request for this issue to be heard first) of argument on the issue raised by the pleading in Lidija’s further amended defence of defences based on Anshun estoppel and abuse of process.

Family background

Ljubica had three children: the first, Radmila, born in Macedonia in 1948, from her first marriage to Nicola Jankulcevski, from whom Ljubica was divorced in about 1950; the second, Lidija, born in Macedonia in 1957, from Ljubica’s second marriage in about 1956 to Dimitar Dimitrovski (who died in 1971); and the third, a son, Ljupc Dimitrovski (also known as Leonard), born in Macedonia in 1960 also from Ljubica’s second marriage. Leonard died in 2010, having suffered a serious accident some 15 years earlier which had left him in a vegetative state (see the evidence of his widow, Manuela James, at T 246.23-28; 247.23, 13 June 2018).
Ljubica and her second husband moved to Australia (with Lidija and Leonard, Radmila remaining in Macedonia) in 1967; and in 1969 the couple purchased the Granville property. Lidija married her first husband in 1976 and in 1987 moved to live in Croatia. She married her second husband about 18 months before the events in question (which commenced in early 2009). Vase, who at the time of the hearing was 49 years old, is the son of Radmila and a grandson of the deceased. He moved to Australia in 1997 but had spent time abroad in the period from 1997 to some time before 2009 (in Austria for a brief time in 1999 and then again from 2001 to about 2006 – see T 117, 12 June 2018).

January 2009

As at January 2009, Ljubica was living on her own in the Granville property, of which she was by then the sole owner (her second husband having died in 1971). It does not appear to be disputed that, by January 2009, her condition had deteriorated to the point where she needed assistance. Certainly, Vase accepted in the witness box that at that time “she was a little bit weaker” and agreed that he and his mother Radmila were concerned about her (see T 42.32-39, 7 June 2018), though he said that Ljubica could do all the “basic living” “almost by herself” (T 43.7) and that she was lucid (T 43.20). He also, somewhat grudgingly, accepted that Lidija was concerned about Ljubica as well (T 42.42).
At that time, Lidija was living in Zagreb, Croatia, with her second husband and one of her daughters; Radmila was living in Skopje, Macedonia, with her husband; and Vase was living in Sydney in rented accommodation in Brighton-le-Sands and working full-time as a coffee technician (T 44.50-45.3).

Lidija travels to Sydney in February 2009

Lidija’s evidence is that she came to Sydney in February 2009, having received information from various sources (see T 290.26, 14 June 2018) that her mother was not well; having had difficulty contacting her mother (and having contacted the police in that regard); and her mother having told her over the phone that she needed help (T 290.42; T 291.48; T 292.6); that she found her mother in a poor state and the house in a filthy and unhygienic condition (“full of rats, cockroaches” – T 294.12); and that almost immediately she took her mother to seek medical assistance. I note that it is not disputed that Ljubica suffered from Type 2 diabetes. A medical health assessment form that was in evidence (see CB 2/844) records a history of non-compliance with medication and treatment in 2000, 2001 and 2002.
The precise timeline of events at this point was a matter that assumed some significance in Lidija’s cross-examination. It is not disputed that Lidija arrived in Sydney on 9 February 2009. Her evidence was that, at that stage, she had not formed a decision to take her mother back to Croatia (T 280.2; T 292.10; T 292.30-35; T 292.45).

On 10 February 2009, Lidija took her mother to see her mother’s family doctor (Dr Wafik Latif). Dr Latif had treated her mother for some time. Lidija agreed in the witness box that Dr Latif advised that her mother should be placed in a hospital immediately as she was in danger of experiencing a heart attack (T 280.19) but said that her mother had pleaded with her not to take her to hospital (T 280.29); and that she took her mother back to the Granville property instead – intending to see how it went and, if her mother got worse, to take her to the hospital (T 280.41).
I interpose to note that the flavour of some of the cross-examination of Lidija in relation to this was to suggest that Lidija had been in some way blameworthy in failing to insist upon her mother being admitted to hospital that day (see T 281) and that she had not been genuinely concerned with her mother’s welfare (T 292.48). Apart from the fact that it is difficult to see the relevance of this to the central issue in the proceedings, it is clear from Dr Latif’s handwritten note, on a health assessment form dated 10 February 2009 (CB 2/844-845), that Dr Latif cannot have considered hospital admission essential on that day, since his note (which corroborates Lidija’s evidence on this issue) was:

NB: Daughter currently home from overseas to look after her mother and supervise medication. will bring her for regular check up as patient refused to go to hospital. advised to call ambulance in case of emergency or acute incidents.

It was also put to Lidija (which she in substance denied) that she had prevented Ljubica from receiving medical attention by taking her to Croatia in those circumstances (T 281.44). (Lidija maintained that she had not taken her mother to Croatia “in those circumstances” and that by the time they went back to Croatia her mother had improved to the extent that Dr Latif was pleased with her condition.)
It is clear that at least as at 16 February 2009 Dr Latif was aware of the proposed trip to Croatia and there is no suggestion that he counselled against it (see [43] below).
There was some lack of clarity, in Lidija’s evidence, as to when (and on how many) occasions, after that first visit to the doctor (on 10 February 2009), Ljubica saw the doctor. In cross-examination, she said that they went to the doctor at least three or four times (T 282.6). She also gave evidence that they had seen Dr Latif on a couple of occasions after the first visit on 10 February 2009 (the first being a few days after 10 February 2009, on which occasion she said Dr Latif was pleased with her mother’s recovery). There was certainly evidence that they went again to see the doctor on 16 February 2009 (to which I refer at [43] below), by which time it seems that the decision that Ljubica should go back to Croatia with Lidija had been made (since it is recorded in the doctor’s letter of that date, at which time he prescribed some six months’ worth of medication for Ljubica). However, it is not clear that there was any visit to Dr Latif in between 10 and 16 February 2009. Certainly, there was no contemporaneous record of any such visit in evidence to which I was taken.
The timing of the subsequent visit(s) to the doctor (i.e., after 10 February 2009) is of relevance when setting into chronological context the time at which the decision was made that Ljubica should return to Croatia with Lidija.
Lidija’s evidence in cross-examination was that that decision was made at a “later” time (i.e., later than the time of the first visit to the doctor on 10 February 2009) after she had spent a whole day discussing the problem with her mother (T 282.50). She also referred to having had discussions with Manuela (and others); and having had a telephone conversation with Radmila (who she said was “totally” opposed to the move) about the matter (see [40] below). She said (at T 283.2) that the decision was made together with her mother after a week.
Lidija’s account in this regard was challenged in cross-examination by reference, among other things, to the timing of other events and, in particular, the date on which Ljubica executed a new will (which was on 11 February 2009).
Lidija’s evidence was that her mother had insisted that Lidija take her to her solicitor to make a new will (Lidija was also adamant that it was her mother who took her there – see T 293); that the solicitor had moved away from the area and was not there at the time they went there (T 287.45); that they went home and Ljubica requested that she try and find another solicitor (T 293.30); and that she did so, that solicitor being Mr Vassili who visited at Ljubica’s house to take instructions in relation to the will. (Corroboration of Lidija’s evidence that they had first attempted to contact her mother’s former solicitor is said for Lidija to be found by reference to an earlier will that was in evidence, which did indeed name a different solicitor with an address in the area but little can in my opinion be drawn from this.)
Lidija placed the timing of the visit to the office of the solicitor who was not in the area any more as being on the occasion of their second visit to Dr Latif (T 287.40). Given that the will was executed on 11 February 2009, if that evidence were to be correct this would mean that after the 10 February 2009 consultation there must have been: a second visit to Dr Latif; an abortive trip to see the solicitor; attempts to contact another solicitor; Mr Vassili being contacted and attending at the Granville property to take instructions; Mr Vassili preparing a will (and power of attorney); and the relevant document(s) being executed – all in the space of some 24 hours.
Lidija also said that her mother had demanded that she go to the bank and put her name on her mother’s account and that her mother took her to the bank to do this (see T 293). It is not clear precisely when the bank account details were changed. The bank issued a new bank book with Lidija’s name on it on that day (Lidija’s affidavit sworn 8 August 2017 at [34]).
The objective facts, as disclosed by the contemporaneous documents, are that, after Lidija arrived in Sydney on 9 February 2009: Ljubica saw Dr Latif on 10 February 2009; Ljubica executed her new will and the power of attorney in favour of Lidija on 11 February 2009; and, on 16 February 2009, Dr Latif prescribed a supply of medication expressly in contemplation of Ljubica’s travel to Croatia. On any view of the matter, the first two of those events took place in a very short compass and at a time when (at least on 10 February 2009) Ljubica had been assessed as being sufficiently unwell as to warrant the medical advice that she immediately be admitted to hospital.
The significance of the timing of the making of the new will, at least insofar as this is linked to any decision having by then been made for Ljubica to return with Lidija to Croatia, is that it is inconsistent with the decision as to travel having been made “after a week”, as was Lidija’s evidence. At the very least, it indicates that discussions as to Ljubica’s future care are likely to have taken place very shortly after Lidija’s arrival in Australia. That said, it seems inherently unlikely that an elderly woman in danger of experiencing a heart attack would have recovered sufficiently overnight for it to have been contemplated at that stage that she would be shortly be able to travel overseas.
On balance, it thus seems more likely that arrangements were made for the new will and power of attorney to be executed (and the new banking arrangements made) at a time before any final decision had been made for Ljubica to travel to Croatia – perhaps consistent with the need to put in place arrangements in relation to Ljubica’s affairs in the face of what Lidija seems to have regarded as a sufficient emergency for her to travel at short notice from Croatia to Australia in order to respond to what she says was Ljubica’s request for help. It is not, however, necessary to determine at what precise point the travel decision was made, and, for the reasons I give later, I do not consider that any confusion as to the number and timing of the visits to Dr Latif, or as to when the decision was made for Ljubica to travel to Croatia, adversely affects Lidija’s overall credibility.

Ljubica’s 11 February 2009 will and power of attorney in favour of Lidija

As adverted to above, on 11 February 2009 Ljubica signed her last will and testament (this being the will later admitted to probate) (CB 2/654). It was witnessed by the solicitor who prepared the will (Mr Vassili) and another witness. At the same time a Power of Attorney was signed appointing Lidija as Ljubica’s attorney (CB 2/1091).
The will appointed Lidija as executor and trustee of Ljubica’s estate and made Lidija the sole beneficiary of Ljubica’s estate. The will included an explanation for the fact that provision had not been made for Leonard and Radmila in the following terms:

5. I have not made provision for Leonard James, my son, and Radmila Antova, my daughter, in this Will as I have adequately provided for them during my lifetime with my love and care and financial contributions to their welfare to the exclusion of my daughter Lidija BOKAN, and I have now become separated from them, whereas my daughter Lidija BOKAN has now provided care for me in my last remaining years and I wish now to make adequate provision for her.

Lidija gave evidence (which was corroborated by Manuela’s evidence of contemporaneous statements made to her) of her distress at the decision by Ljubica not to treat her children equally. I will revert to this in due course (see [44] below). I also note that there was evidence from Manuela which suggested that it was not unusual for Ljubica to change her will from time to time in favour of one or other family members at the expense of others (see T 254.5).

Decision that Ljubica should travel to Croatia with Lidija

According to Lidija, after about a week (and after discussion with her mother and others) she formed the opinion that her mother needed care and could not remain living on her own at the Granville property; Radmila was not able at that time to come to Australia and care for their mother as she did not have the necessary visa; and the only other option (since Lidija had shortly to return to work in Croatia) other than her mother going to Croatia was for her mother to go into a nursing home in Sydney.
The evidence of Lidija and Manuela was that there had been some kind of falling out between Ljubica and Vase; and that Ljubica did not want Vase to come to the home. Vase disputes this. Whatever be the case in this regard, it is apparent that Lidija did not consider at the time that it was an option for her mother’s care that Vase – who was working full-time – should take on the role of carer. Nor was it considered a feasible option for Ljubica to go to Brisbane to live with Manuela. Manuela’s evidence makes clear that she shared Lidija’s view that the only option at the time – other than Ljubica being placed in a nursing home – was for Ljubica to go to Zagreb with Lidija.
Lidija accepted, in cross-examination, that this was a “rather life changing decision” and a “very big decision”. She maintained (though she had not included any reference to this in her affidavit evidence) that she had discussed this with Radmila (T 285.23-287.2):

Q.    Did you discuss it with her other daughter, Radmila?
A.    Radmila called.
Q.    Radmila called you?
A.    Yes, and she talked to mum, and she talked to me, and I told her, “Radmila, I can not leave mum in this situation. She can not tend for herself. I can only take her to Zagreb or put her in a nursing home.” And Radmila begged me to leave her in Australia and I said, “I cannot leave her unattended. She doesn’t want to go into a nursing home. Something has to be done.” And she said, “Well, I will come in two months,” and I—
Q.    Who said that?
A.    Radmila. And I said, "In two months, mum will die."
Q.    In paragraph 43 of your affidavit - this is advancing a little further on in
time - you said, talking about Centrelink and the Australian Taxation Office, “I was unable to discuss this matter with Radmila or her husband, as I knew we would not be able to agree on what care was appropriate for mum.” Do you remember saying those words?
A.    Yes. [I interpose to note that the evidence as to enquiries in relation to Centrelink or the Australian Taxation Office was that this occurred later, in about July 2009]
Q.    Nothing--
A.    Because Radmila was, was totally against me taking mum to Croatia.
…
A.    I was having discussions with many people, because I was stuck and in need of help, how to make the best decision.
Q.    If what you’re saying is correct and Radmila was totally against you taking your mother, you decided to overrule your sister's concerns and take your mother, nonetheless?
A.    Mum did not want to go into a nursing home. Radmila suggested that I leave her in the house, that she would be fine for two months until she came to care for her. Mum was in no condition to be left alone in the house for two months.
Q.    You’re saying that you discussed with your mother the idea that she should go into a nursing home in Australia?
A.    Yes.
Q.    And you’re saying that your mother didn’t want to go into a nursing home in Australia?
A.    Yes.

Pressed in relation to this, on the second day she was in cross-examination, there was the following exchange (T 294.9-294.31):

Q.    You had no intention of putting her into an Australian nursing home?
A.    That’s not correct. That was my first thing I thought of, and that’s the first thing I talked to mum. I said, “Mum, the house was full of rats, cockroaches.” I tried to explain to her, “You cannot live like this and once I leave, you will again, forget to take your medication, and it will be crucial, detrimental to you.” And I said, “You have to make a decision. Either go,” I tried to persuade her, actually, to go into a nursing home.
Q.    Yesterday you told us that you had a conversation with your sister, Radmila, about taking her to Croatia?
A.    Yes.
Q.    Do you recall that?
A.    Yes.
Q.    That’s a lie, isn’t it?
A.    That’s not a lie. Radmila called me, actually, called mum.
Q.    There was no communication between you and Radmila at all, when you were in Australia for these few days?
A.    There was. Radmila called us. I talked to her first, then I gave the phone to mum, mum talked to her, and Radmila was actually, she was not pleased. And she was trying to discourage mum into going to Croatia.

As to the making of what Lidija said was a joint decision for Ljubica to go to Croatia, Lidija gave evidence in the witness box that she and her mother had discussed the options over the course of a day (T 287.17-287.28):

Q.    Do you say that it was your mother’s wish that she decides there and then to go with you to Australia(as said)?
A.    It was a very difficult decision. We talked about it, we cried about it, we prayed about it the whole day.
Q.    If it’s difficult, is it because she’s in mixed minds about it?
A.    No, I, well, yes. She was in mixed mind, because it was a difficult decision for her to leave her home and she knew she couldn’t tend for herself, herself anymore.
Q.    She was also making a decision to leave her son behind?
A.    Yes.T

Visit to Dr Latif on 16 February 2009

As adverted to above, it appears that by at least 16 February 2009 the decision had been made that Ljubica would travel to Croatia, since on that day Dr Latif prescribed medication for Ljubica’s “personal use while travelling”, noting that he believed Ljubica would be travelling overseas for a period of 6 months (see CB 2/843). Lidija’s evidence was that Dr Latif prescribed insulin for her mother to take with her to Croatia, as well as the needles necessary to administer the insulin. (Although Lidija was cross-examined to suggest that she had not taken such paraphernalia with her, I accept Lidija’s evidence that she did so – it is consistent with Dr Latif having prescribed the medication that Ljubica needed for that purpose.)

Lidija’s will dated 20 February 2009

As noted above, Lidija’s evidence was that she was distressed about her mother making a will in which equal provision was not made for her siblings. She arranged, before they left Australia, to have her own will drawn up in which she bequeathed her real and personal property in New South Wales equally amongst various beneficiaries including Radmila and the children of her brother Leonard (see her will dated 20 February 2009, which was drafted and again witnessed by Mr Vassili – CB 2/652-653).

March/April 2009 – Ljubica’s fall and admission to aged care facility

Lidija took Ljubica with her back to Zagreb in late February 2009. As to this, Vase’s complaint in the witness box seemed to be that Lidija had not informed him where and what she was doing (T 47.40). When asked why she had to inform him, Vase said (T 47.47-48.4):

A.    WITNESS: Because she knows that I'm here and the grandmother is here and we are basically communicating , I'm, I'm coming visiting my grandmother, providing for the grandmother everything while she’s, she’s here. She, she did not come and say, “Vasco, the grandmother wants to come with me or she will go over there for a holiday,” or whatever and she did not.
Q.    Why does she have to?
A.    WITNESS: She doesn't have to.

On arrival in Zagreb, Ljubica lived in Lidija’s home until Ljubica had a fall in the living room and broke her hip. This was placed by Lidija as having occurred on 22 March 2009 (see Lidija’s affidavit sworn 8 August 2017, [36]). In cross-examination, Lidija thought this was about a month after their return to Zagreb. (That is consistent with the history recorded in a later admittance record to the Psychiatric Hospital Vrapce, which refers to a fall in a living room in March and a hip fracture – see CB/868.)
Following Ljubica’s fall and hip fracture, Ljubica underwent surgery in a hospital in Zagreb (see case history notes at CB 2/856) after which she was admitted (on 7 April 2009) to an aged care facility (sometimes referred to in the evidence as a nursing home) in Zagreb (see part of the evidence later before the Guardianship Tribunal in that regard which puts the date of Ljubica’s admission to the Nursing Home for Elderly and Disabled Persons – “Residence Kastelan” – as being on 7 April 2009; CB 2/854). (I note here that although objection was initially taken by Vase to the admission into evidence of various of the documents obtained by Lidija on subpoena from the later Guardianship Tribunal file in relation to Ljubica, that objection was not pressed in relation to some of those documents. In particular, objection to the admission of the documents at CB 2/851-871, which include the above admittance record, was withdrawn after I had deferred ruling on them on 14 June 2018 – see T 365.40.)

March 2009 – Radmila visits Australia

Meanwhile, according to Vase, Radmila came out to Australia in March 2009 (see T 51.28). Somewhat inconsistently he had earlier said that at some time “quite a bit of months after February [2009]” Radmila came to Australia “and my grandmother was not here, as, as supposed to be”, saying that “it was my mum spoke with the grandmother - … and she was supposed to be here” (T 48.23).
Pausing here, on this account of events from Vase, if he did not realise that Ljubica was not in Australia in the period from February 2009 until his mother’s arrival, and only found this out at about the time his mother came to Australia (which he variously put as “quite a bit of months” after February and then in March 2009) that Ljubica was not there, this casts some doubt on his assertion in the witness box that he was “basically communicating”, visiting his grandmother and providing everything while she was there (see T 47.40 extracted above at [45]); as also does Lidija’s evidence of the state of the Granville property at the time she visited in February 2009 (since if Vase had been visiting regularly it might be thought he would have been aware of this and if he had been the caring grandson he portrays himself as being, that he would have sought to address Ljubica’s living conditions at that time).

In any event, Vase’s evidence was that he saw his grandmother in January 2009 (T 51.12); that his grandmother was weak at that time (T 51.15); that he (subsequently) realised that Ljubica had been taken to Zagreb and he assumed that she was living with Lidija (T 51.18-22); that Radmila came out to Australia in March “because it was out of the usual, my grandmother to stay for such a long period somewhere else” (T 51.28-38) and stayed in Australia until June (T 51.41); that, between February and June 2009, Radmila could not talk with Ljubica (something that presumably could only derive from what Radmila had told him) (T 51.41); and that (see below) he spoke with a friend or acquaintance of the family, Mr Kurtovic, (either at around May or June 2009 – T 50.19 – or in July 2009 as per his affidavit) and asked him to go to Zagreb to see Ljubica (T 50.42) or to “assist in locating” Ljubica (see [25] of his 2 November 2016 affidavit).

June 2009

As adverted to above, Ljubica was examined at a psychiatric hospital in Zagreb (CB 2/868) on or about 19 June 2009 but it appears that she was not then hospitalised; and that she returned to the aged care facility.
By around May or June 2009 (as was put to him in cross-examination) or at the latest by July 2009, Vase must have become aware that Ljubica was or might be in Zagreb because he spoke (in his affidavit he puts this conversation as occurring in about July 2009) with Mr Veselko Kurtovic (someone who gave evidence in these proceedings and who has deposed that he was a close friend of Ljubica and had known her since about 1992 – see Mr Kurtovic’s affidavit sworn 22 August 2016 at [1]-[2]), asking him to go to Zagreb to see his grandmother (see T 50.19-49; Vase’s affidavit of 2 November 2016 at [25]). (After some resistance, Mr Kurtovic conceded in the witness box that Vase had paid for his airfare to Zagreb, though not his expenses while he was there.)

Lidija’s return to Australia in around July 2009

At some time in or around July 2009 (after Ljubica’s hip fracture but before Ljubica’s leg was amputated – see [57] below), Lidija travelled back to Sydney and made various arrangements in relation to her mother’s affairs. Lidija said that she came to Australia before her mother’s leg was amputated (T 304.49); that she came in July for a couple of weeks; and that Ljubica’s leg was amputated (she believed in August) when she arrived back in Zagreb (see T 305.2-7). She denied that when she left for Australia it had become apparent that the leg needed to be amputated. She said that in the second week she was in Australia she was told that her mother was going back and forth to the hospital for check-ups (T 305).
Lidija said that she received information that her mother’s pension would be reduced as she was overseas but had a property in Sydney; and she was concerned about the need to meet medical bills and the like. Manuela gave evidence that around this time (she put it as occurring after Ljubica’s leg was amputated but it seems likely to have been shortly before that, having regard to the evidence of Mr Kurtovic to which I refer shortly that Lidija came to the hospital at that time) she (Manuela) had made some enquiries and had given Lidija information as to what would be the Australian Taxation Office and Centrelink “view” as to Ljubica’s pension. This was in circumstances where, she says, she (and Lidija) realised that Ljubica would not be able to return to Australia (T 256.15). Manuela’s understanding in that regard was that Ljubica would not receive a full pension if she resided overseas for a certain period of time (T 258.49) and she agreed in cross-examination that there might be a need for costs in relation to Ljubica’s medical treatment to be met out of Ljubica’s property in Australia (see T 258.49).
Lidija says that on her visit to Sydney she cleaned out various items from the Granville property (though leaving larger items there, including her mother’s fridge) and that she also contacted the solicitor who had prepared her mother’s will (Mr Vassili) with instructions to arrange a trust account to be set up for her mother. Lidija’s evidence was that a number of the items that she disposed of were owned by her; that some were thrown out because they were not in good repair; and that she left larger items in the house (T 315.30-315.50).
Vase gave evidence of seeing that many things from the Granville property had been removed by around July 2009, which corroborates Lidija’s evidence as to the timing of her visit.

Amputation of Ljubica’s leg in July 2009

Ljubica was hospitalised in Zagreb from 27-31 July 2009 (see CB 2/856; 862) and on 31 July 2009 she was transferred to the vascular surgical ward where her right leg was amputated above the knee due to “wet gangrene” (CB 2/862). Lidija’s evidence, corroborated by that of Mr Kurtovic, is that she had returned to Zagreb by the time the amputation was carried out. It appears that after that surgery she was hospitalised from 31 July to 7 August 2009 (see CB 2/863) and then returned to the aged care facility.
I interpose to note that in Vase’s affidavit of 2 November 2016 he asserts that it was “with the assistance of mother [Radmila] and Veselko Kurtovic” that his grandmother was taken to the hospital at Zagreb (see [28]). This is contradicted by the evidence of Ms Zdenka Derkos, a friend of Lidija’s who was regularly visiting Ljubica (at Lidija’s request) during the time Ljubica was in Zagreb. Ms Derkos says that she accompanied Ljubica to the hospital – see [92] below.
Lidija points to various statements in the medical records that were contained on the subsequent Guardianship Tribunal file in relation to Lidija in which there is reference to a diagnosis of dementia or dementia syndrome having been made in relation to her mother in July 2009 (see for example the discharge letter from a clinical hospital in Zagreb – CB 2/856). Lidija relies on those reports for the conclusion that a diagnosis of dementia was made in relation to her mother in July 2009 (CB 2/587).
Objection was taken for Vase to the admission of those reports and to reliance by Lidija on medical records of this kind to prove incapacity, an issue I deal with in due course. For present purposes, in setting out the chronological background to the dispute, I simply note that the medical records that were before the Guardianship Tribunal in May 2010 included reference to symptoms of dementia in or around July 2009.

September 2009 – Vase says he became aware of power of attorney in favour of Lidija

Vase gave evidence in his affidavit of 2 November 2016 (at [35]) that in about September 2009 he travelled to Zagreb for the purpose of visiting his grandmother. He also deposed (see his affidavit at [38]) that in about September 2009 he first became aware of a document titled “power of attorney” (that being the February 2009 power of attorney made in favour of Lidija) (see T 58.13-26; T 59.15) and that he had a conversation with Ljubica in relation to this. It was not clear from his affidavit whether this was something he says he found out during the (one) visit he says he made to the aged care facility in Zagreb but in his affidavit he deposes to a conversation with Ljubica about a power of attorney in favour of Lidija (see [38]) and he appears to place this conversation as being in September 2009. (He denies that he saw Mr Dabeski, the lawyer who it is said drafted the Macedonian Power of Attorney and Contract for a Gift, until “much later” (T 60.35) and he puts that event as not occurring until after Ljubica had been taken to Skopje.)
Vase’s evidence in cross-examination (to which I will refer in more detail shortly) was that he only visited Ljubica once at the aged care facility; and that this was on 2 October 2009. If so, then the conversation with Ljubica to which he deposed in his affidavit about the power of attorney in favour of Lidija could not have occurred in September 2009. In any event, for present purposes I simply note that it is not clear on Vase’s account of events, as deposed to in his affidavit evidence, how it was that Vase became aware in September 2009 (as he says he did) of the February 2009 power of attorney made in favour of Lidija.
Pressed on this issue in cross-examination, Vase said that when he was in Croatia he saw one page of a copy of the power of attorney in favour of Lidija (T 112.48) but he could not exactly remember whether he saw it in the aged care facility or when it was that he saw the document (see T 113.1-12). He resisted answering questions as to his understanding of the effect of the document when he saw it (T 113.1-114.9):

A.    WITNESS: It’s, it’s been a time but I, I, I had, I know that I have seen that, one page.
Q.    In the aged care facility, or some time before?
A.    WITNESS: I can’t exactly remember it then.
Q.    So, is it your evidence to the Court that you may have seen it sometime before 2 October, is that what you say?
A.    WITNESS: I can’t remember exactly.
Q.    It’s possible?
A.    WITNESS: I can’t exactly remember when it was.
Q.    Because, what I suggest to you is that when you did become aware of it, whenever that was, you set about to change it? That is, try and revoke the document and get a new one for you?
A.    WITNESS: That’s not true.
Q.    You certainly understood what the effect of Lidija’s power of attorney was, didn’t you?
A.    WITNESS: The page, what is there, it is a page and from that, amount of my grandmother, that I hear, and she told me, and what she done it, was completely something different.
Q.    But my question to you is, you understood that the document Lidija had, signed by your grandmother, enabled her to exercise certain powers, correct?
A.    WITNESS: That was not what the grandmother told.
Q.    I understand you say that. What I'm asking you is, that you knew - whether you say your grandmother wanted it or not - you knew that the document allowed Lidija to exercise certain powers, didn’t you?
A.    WITNESS: It was a time on the spot where you can’t, you, you can’t decide what is, what is this, kind of - and you can’t process this kind of, piece of paper. So, in that point in time, as I told you, that’s what my grandmother said out of mouth, that what happened, as I told you last time.
Q.    In any event, it was the document that Lidija had that made you go about to get a new document?
A.    WITNESS: The grandmother clearly stated in that piece of paper what exactly happened to her, and she—
Q.    Did you hear--
A.    WITNESS: --and she, and she clearly describes—
Q.    Did you hear my question, please?
A.    WITNESS: Yes.
Q.    I am asking a different question. Do you understand? I know the answer you’re trying to give me, but I'm asking you a different question, please. When you saw the document from your grandmother, being the power of attorney, in favour of Lidija, it was when you saw that document--
A.    WITNESS: Yes.
Q.    --that you chose to take the steps that you did to remove your grandmother from the Zagreb aged care facility, and take her, or arrange for Mr Dabeski to come to see your grandmother, that’s correct, isn’t it?
A.    WITNESS: Again, to your question, that was the decision of my grandmother and I did not have much about to, to say, there. That was her decisions.

What is clear, however, is that Vase must have become aware of the existence of an earlier power of attorney in favour of Lidija at some time before 13 October 2009 (since the Macedonian Power of Attorney itself purports to revoke that earlier power of attorney and Vase either gave or was privy to the giving of instructions to Mr Dabeski in relation thereto).

Visits by Radmila and others to the aged care facility/hospital prior to 2 October 2009

There were varying accounts of visits made to Ljubica by Radmila and/or Mr Kurtovic while she was in the aged care facility and hospital in Zagreb, respectively, prior to her leaving the aged care facility on 2 October 2009. I summarise those below before turning to the events of 2 October 2009. Pausing here, I note that Radmila did not give evidence in the proceedings before me (though she had given evidence in an earlier hearing in this matter before Kunc J) so there is no account by her of what happened on the occasions that others said she was present at the aged care facility and hospital.

Vase’s account

I have already noted that Vase gave evidence that, at his request, Mr Kurtovic went to Zagreb. He says that Mr Kurtovic “found” Ljubica (“Mr Kurtovic find the grandmother, yes” – T 52.26). He said that then Mr Kurtovic and Radmila together went to visit Ljubica at the aged care facility in Zagreb (T 52-53). It is clear that Vase was not present during that first visit so his evidence as to that visit cannot be based on Vase’s personal knowledge. Instead, his evidence of that visit was said to be based on “conversation” with Mr Kurtovic and Radmila.
It was put to Vase, but he did not accept, that Radmila and Mr Kurtovic had gone to visit Ljubica with a lawyer or public notary to try and get Ljubica to sign some documents – T 53.33-40. What he did accept was that there had been a problem when the two visited Ljubica in the aged care facility (T 53.46-50) and that they had to leave. He said that this was because his grandmother needed to be taken immediately to hospital – see T 54.3-24 (an example, I interpose to note, of Vase talking across the cross-examiner). The reference to Ljubica needing to be taken immediately to the hospital suggests that Vase may be putting this first visit by Radmila and Mr Kurtovic at some time around late July 2009, though that is not clear. (Ms Derkos gives a different account of that first visit by Radmila and Mr Kurtovic, to which I turn shortly.)
Vase says that when he arrived in Zagreb he met Radmila and that he and Radmila went to the aged care facility to see Ljubica (T 55). However, he was adamant that he only went once to the aged care facility in Zagreb (T 55.27; T 111.39) in which case he must have here been referring to the visit on 2 October 2009 (see below at [101]; T 64.44; cf T 64.17) and I deal with this in due course.
At this stage I simply note that if, as Vase was adamant was the case, he only went to the aged care facility once (T 64.17-28) and that was the occasion that he and Radmila left with Ljubica (I say “left” because Vase was adamant that there was a difference between his grandmother being taken and his account, which was that “she came and ask to come out” – see T 63.48-64.2), then it must follow that, although he said that he travelled to Zagreb in September 2009 to see his grandmother, he did not actually see her there until the very occasion on which he wheeled her out of the aged care facility in a wheelchair (and, as already noted, the conversation to which he deposed with his grandmother at [38] of his affidavit cannot have taken place in September 2009).

Mr Kurtovic’s account

Mr Kurtovic accepted that in early 2009 Vase had telephoned him and told him that Lidija had taken Ljubica to Zagreb (T 177.25); had asked him for some help (T 177.28); and had asked him to go to Zagreb (T 177.31). He responded to a question as to whether Vase had arranged his tickets by saying “It’s not really like that” (T 177.34) and, questioned as to whether Vase paid for the tickets, he gave a non-responsive answer about the request for help by Vase (T 177.37-177.44). Ultimately he agreed that Vase had paid for his tickets to go to Zagreb (T 178.8) but not his expenses in Zagreb (T 178.11) and that he was going there to find Ljubica (T 178.17).
Mr Kurtovic said that he was met in Zagreb by his cousin and that the two of them went together to the aged care facility where he knew Ljubica was (T 178.27). He said that he went in (to the facility) with his cousin. He denied that he had with him any documents for Ljubica to sign; and there was then the following exchange (at T 183.4-183.40):

Q.    No?
A.    WITNESS: What I can recall, no, when I went in with my cousin, we went there, and when I saw the grandmother and in what kind of condition. I have even pictures here, you know, what kind of condition she is and I was very, very emotionally, very upset. You understand, and then she, she, she have a bed, and she have a, one tray, plastic tray covered in the, the, her leg is decomposing, decomposing in that tray and that—
Q.    Just pausing there for a moment.
A.    WITNESS: Yep.
Q.    Do you deny that you sought to seek that Ljubica sign some documents?
A.    WITNESS: She, I don’t, I don’t, I can’t recall anything.
Q.    You can’t recall whether you did?
A.    WITNESS: I can’t.
Q.    It’s possible you asked her?
A.    WITNESS: Anything is possible because from that moment, from that, in that moment, I don’t ask her nothing. Do you understand? I went out, in that moment, I don’t ask nothing of her.
Q.    But it’s possible that you had some documents with you?
A.    WITNESS: Me, I have nothing with me.
Q.    You had nothing with you?
A.    WITNESS: Nothing with me, nothing, nothing.
Q.    What about your cousin?
A.    WITNESS: Nothing, because that, I—
Q.    What about your cousin?
A.    WITNESS: No, nothing, nothing. We went, we went out of there, we went out of there, and then I been in a, in a, a some kind of wow, what I can do to help this woman because I’m not a - I thought to myself, I’m not a first of kin and I say I only disillusioned to agree, to agree to daughter, the other one in Macedonia, what's to, to, to, to try to help her.

Mr Kurtovic accepted that he had been asked to leave by the management at the aged care facility (at T 185.2) and that there had been some commotion:

A. WITNESS: Commotion, commotion, commotion is that because I’d been asking the, ask, asking them, why are they doing - when, you must understand, when somebody doing the crime things, like that, and that woman only have two days to live - or a few days, or a week to survive--

It should be noted here that the suggestion there made by Mr Kurtovic that at that time Ljubica had only two days to live had no independent evidentiary basis. That seems simply to have been Mr Kurtovic’s assessment of the situation (and one not based on any medical knowledge or training) though he attributed it at one stage to something he had been told at the hospital. Cross-examined on this, Mr Kurtovic resisted answering the proposition that he was not a doctor, referring to being present when they had amputated part of Ljubica’s other leg at Westmead Hospital “for the same reason” (presumably referring to the previous amputation of some of her toes) and saying that he was “actually … a biochemist engineer, with the computer”. (In his affidavit he deposes to his occupation being that of a concreter.) He asserted that that was what he had been told at the hospital. Eventually, having been asked the question some nine times, Mr Kurtovic seemingly grudgingly accepted the proposition that he was not a doctor: “Yeah, all right, I not” (T 184.31).
After the first visit to the aged care facility, Mr Kurtovic rang Radmila, who was in Skopje at the time (T 185.4-185.8). After he was told to leave the facility the first time, Mr Kurtovic said that he and Radmila went to see Ljubica again (T 185.24; 185.33). (He emphasised that he did not go back there with his cousin.) His recollection at first in cross-examination was that he and Radmila went to the aged care facility (T 185.30) and he did not agree that it was possible that he and she went to the hospital (T 185.36) (cf his affidavit at [22]-[23]). (However, it may be that the sentence at [18] of his affidavit is the reference to this visit with Radmila, being a visit to the “old age home”, and [22]-[23] are referring to a later time.) Pressed on this, there was the following exchange (T 186.1-186.15):

Q. Do you see [having been taken to his affidavit] that you did go to the hospital?
A. WITNESS: You see, all this procedure, to get this woman out of the nursing home, is I went, you--

Q.    Just pause. Did you go to the hospital?
A.    WITNESS: Man, don’t turn, don’t turning me around, man. Don’t turning me around, I know exactly where I am and what I done, and I said--
Q.    Was it the hospital?
A.    WITNESS: I, I, I going to, I going to, I, yeah, that’s the hospital. But to get this woman from the hospital, I have to go to the police, do you understand?
Q.    My question is simply, did you go to the hospital?
A.    WITNESS: I, yeah, I was there in hospital too, yeah. True, yeah.

Mr Kurtovic agreed then that the second time he went to see Ljubica was at the hospital when her leg was just about to be amputated and that he went with Radmila. He said that Lidija was not there at the time, she was in Australia but not long after that evidence he said that “maybe” the same day or afternoon that he and Radmila were at the hospital Lidija arrived there.
Asked if he had gone with anyone else (to the hospital) he said (T 186.37-186.45):

A.    WITNESS: We try to organise someone, I don’t know who.
Q.    You think you went with somebody else, you just can’t recall who, is that what you said?
A.    WITNESS: No, I really can’t recall, but I don’t know exactly, exactly.
Q.    You could’ve been with somebody, you just can't remember, is that right?
A.    WITNESS: We went to some institution, institution. I know we went to the lawyer, to try to help and I know we went to the--

His evidence as to whether or not he or Radmila came to the hospital with documents to sign was as follows (T 187.5-188.10):

Q.    Did you or anybody with you come with documents to the hospital for Ljubica to sign?
A.    WITNESS: Documents? The documents, that’s she’s supposed to be, Ljubica’s supposed to be signing the documents or, or cut the leg off?
Q.    I get that--
A.    WITNESS: Yep.
Q.    --but did you come with documents for Ljubica to sign? Any legal documents for Ljubica to sign?
A.    WITNESS: I not bring.
Q.    Not you?
A.    WITNESS: Not me, yeah.
Q.    Radmila?
A.    WITNESS: I don’t know, maybe, I don’t know.
Q.    You don’t know?
A.    WITNESS: Man, we went to, we went through to some noter, and I don’t, I don’t recall what, what is that noter was doing what we are need, I need from that noter.
Q.    When you say “noter,” you mean notary?
A.    WITNESS: Notary, notary, yeah, notary.
Q.    Is it possible that you went--
A.    WITNESS: Notary, notary was coming there - you want to recall this, so just a moment, the notary is coming there. So, I don’t remember, I can’t recall for what. Probably to take her home, or I don’t know.
Q.    Is it possible that a notary came to the hospital with you and Radmila when you visited? Is it possible?
A.    WITNESS: Notary come but the grandmother was in a condition that we don’t know, she was under the, the temperature, maybe 40, 41 degrees, and she’s, she’s, she was under heavy medication, you know? Yep.
Q.    So, a notary came with you and Radmila--
A.    WITNESS: Yeah.
Q.    --but she was quite ill to deal with whatever the notary wanted to deal with, is that right?
A.    WITNESS: Yeah, because she was under the, under the, under the some kind of fever, you know? From the inflammation, infection, until they treated her--
Q.    Did you arrange for the notary, or did Radmila arrange for the notary, do you know? Or, who arranged for the notary?
A.    WITNESS: No, we, we both of us went for the notary, but you, you just continue. Are you going to explain to me everything? You know, just continue, yeah, we both of us went for the notary. Everywhere, everything what we have done, we went together, more or less, but everything.
Q.    But, because Ljubica was ill, she was unable to sign any documents with the notary?
A.    WITNESS: Probably, yes, I don’t know, but probably yes.

Mr Kurtovic denied that there was a problem at the hospital when he was there with Radmila and that he was asked to leave by a doctor or staff member of the hospital; and said he left because Lidija was threatening to call the police (T 188.20-188.38):

Q.    You had to leave, though? You did leave?
A.    WITNESS: I leave because this, this Lidija threatening that she’s going to call the police on me, but I, I told her, you call her, not afraid, I says its, “Just call.”
Q.    So, there was a problem at--
A.    WITNESS: Because I just coming out of the police station.
Q.    So, there was a problem?
A.    WITNESS: Yeah.
Q.    You say, with Lidija threatening to call the police because you were there, is that right?
A.    WITNESS: Yeah, yeah, but I, I not threatening her, or telling her nothing. I just walk off.
Q.    So, you left?
A.    WITNESS: Yeah, I just walk off, out of this area to the door and be sitting there on the bench.

I note for completeness that Mr Kurtovic accepted that there had been a previous incident in which Manuela had asked him (and his wife Magda) to stop interfering with Leonard’s care at a hospital. However, I draw nothing from that evidence (in particular it was not sought to be relied on as evidence of a tendency for Mr Kurtovic to behave in such a fashion).

Ms Derkos’ account

The most compelling evidence as to the visits made to Ljubica at the aged care facility and hospital prior to the occasion when she left the aged care facility on 2 October 2009 came from Ms Derkos, an office secretary and friend of Lidija, who had visited Ljubica regularly at the aged care facility.
The first occasion on which Ms Derkos met Radmila was when Radmila visited Ljubica in the aged care facility. Her evidence in chief as to that occasion (see from T 350.6-351.50) was as follows:

Q.    Did you come to meet a person by the name of Radmila Antova?
A.    WITNESS: Yes.
A.    INTERPRETER: Yes, one day I came to see the other lady, it was around 1pm. I was massaging her foot –
Q.    Ljubica’s foot?
A.    WITNESS: Foot, Ljubica foot.
A.    INTERPRETER: A special lamp regarding her sore open wound that she had.
Q.    Just pausing there, as I understand it, you were in Ljubica’s room at that time?
A.    WITNESS: Yes.
Q.    In the nursing home?
A.    INTERPRETER: Yes.
Q.    Did something happen then?
A.    INTERPRETER: Yes, and Ljubica said words, “Radmila, you came.”
A.    WITNESS: I look, and I first look at Radmila.
Q.    Had you seen that lady before?
A.    WITNESS: No.
Q.    When she came, was she with anybody?
A.    WITNESS: No, Radmila with come with here, one man.
Q.    With one man? So, who was that person? Or, were you introduced to that person?
A.    WITNESS: They also bring a one man, with the one bag, and the Radmila said, “..(foreign language)..” I'm sorry--
A.    INTERPRETER: Granny, “..(foreign language)..” means granny. She came and said, “Granny, I came with my friend for you to sign some paperwork.”
Q.    Just pausing there, can you very slowly and very carefully say to the Court exactly what you saw, and what you heard?
A.    INTERPRETER: I was in the room. I was massaging her foot. …(foreign language)… called out, “Radmila, you came.” She came to her bed, and stopped there, with a man in tow and said, “This is my friend, the solicitor. I came here for you to sign some paperwork.” Granny said, “I know him from church, and I’m not signing anything.”
Q.    When that occurred, did you do something in response?
A.    INTERPRETER: I said, “How can you mistreat granny in this way, who are you, anyway?”
Q.    Was there a response?
A.    INTERPRETER: The, the man took a stand, sort of, you know, puff his chest, kind of, but I would see who he is.

[Pausing here, I note at this stage Ms Derkos puffed her chest out in a demonstration of her words]

Q.    Have you seen that man here in Court?
A.    WITNESS: Yes.
A.    INTERPRETER: Yes, I did, in front of Court room.
Q.    Can you describe him, please?
A.    WITNESS: Today, he is old.
A.    INTERPRETER: Well, now, he’s elderly, but then, he was in shorts, white top, and he had a black, like, a briefcase.
Q.    Can you describe the man that you saw here in the Court?
A.    INTERPRETER: I have since found out that it’s Mr Kurtovic.
Q.    Was Mr Kurtovic the same person that you saw at the time that you are now describing?
A.    WITNESS: Yeah.
A.    INTERPRETER: Yes.
Q.    Did you speak to anybody at the nursing home, about that time, in relation to these people being there?
A.    INTERPRETER: No.
Q.    What were the circumstances in which they left the nursing home at that time?
A.    INTERPRETER: Granny refused to sign any paperwork, she wouldn’t want to do anything regarding that, so they turned around and left.
Q.    Did you notice any papers, or something, in Radmila’s hand?
A.    INTERPRETER: Radmila no, but Kurtovic, yes. Radmila had nothing in her hands, she did not even kiss granny, she did not greet her, she just presented herself.
Q.    How was it that they came to leave after this event? Leave the nursing home.
A.    INTERPRETER: Kurtovic sort of threatened me in a way, telling me that I will find out who he is, and we will meet again. Those were his words.
Q.    Did you respond?
A.    WITNESS: No.
A.    INTERPRETER: No.
Q.    What then happened?
A.    INTERPRETER: I stay with granny.
A.    WITNESS: With granny, I go with home.
A.    INTERPRETER: And I go home.

In cross-examination, Ms Derkos confirmed that Ljubica seemed happy that Radmila had come. She confirmed that she had remained in the room but said that “they really did not introduce us or we weren’t introduced” (T 356.27). She denied that there was some conversation in the room at that time about Ljubica’s foot (T 356.31;41) and denied that there was any conversation about that foot needing to be amputated (T 357.6):

A. INTERPRETER: No, no one did. No one said - no one said anything regarding that. There were no discussions. There was not even medical in discussion regarding amputation at that stage.

Ms Derkos said it was about a week after that when Ljubica was taken to the hospital because of issues concerning her foot.
Further cross-examined as to her account of that first meeting, Ms Derkos accepted that she did not know what papers Radmila or Mr Kurtovic were asking Ljubica to sign (T 357.39).
She affirmed that she had only later found out Mr Kurtovic’s name, saying (T 358.4-358.5):

A. INTERPRETER: I later found out what his name is. At the time I never knew his name. He never introduced himself. I never knew what it was.

In cross-examination she went on to say (T 358.7-359.5):

Q.    In the affidavit you say that Radmila introduced this gentleman as a public notary; do you recall that?
A.    INTERPRETER: She did not. She did not introduce me. She did not introduce him to me. She told granny, “This is solicitor and my friend as well.”
Q.    There was no use of the words “public notary”?
A.    WITNESS: Kurtovic?
A.    INTERPRETER: Are we talking about Kurtovic?
Q.    Yes.
A.    WITNESS: I don’t know.
A.    INTERPRETER: I don’t know. I did not know.
Q.    You didn’t hear the words “public notary” being spoken?
A.    WITNESS: No.
Q.    Who said that Mr Kurtovic was a solicitor?
A.    WITNESS: Radmila.
A.    INTERPRETER: Radmila did.
Q.    What were Radmila’s words?
A.    INTERPRETER: She turned, turned to granny and said to her mother, “This is gentleman. He’s a solicitor. I sort of reside with him for the time being. He got some paperwork for you and he will give them to you to sign,” and granny said, “I’m not signing anything. I know him from church.”
Q.    Whose grandmother? Do you mean the mother of Radmila?
A.    WITNESS: Ljubica, my granny, Ljubica.
Q.    You call her “grandmother” out of affection; is that right?
A.    INTERPRETER: You call her “granny”. “Baka” means granny.
A.    WITNESS: Baka.
Q.    Ljubica said she knew Mr Kurtovic from church?
A.    WITNESS: Yes.
A.    INTERPRETER: Yes.
…
Q.    You say there was a discussion about papers to be signed. Where were the papers or were there papers?
A.    INTERPRETER: In the bag. He opened it and got them out and he wanted to hand them to her. Baka, meaning Ljubica, was sitting upright and I was massaging her foot, feet so--
A.    WITNESS: Baka said they are – “No, no, no.”
A.    INTERPRETER: And granny said, “No, no, no, not signing anything, nothing.”

It was put to Ms Derkos that her account of the papers to be signed did not happen and she was mistaken about it (T 359.7). She denied this. She agreed that she did not ask what those papers were or to see those papers; nor did she ask what the fuss was about.
Pressed as to her prior knowledge of Radmila (T 359.30-359.46):

Q.    Did you know who Radmila was?
A.    WITNESS: No.
A.    INTERPRETER: No. Granny said, “Radmila, you came.”
Q.    Do you know what relationship Radmila was to Ljubica?
A.    WITNESS: Yes.
A.    INTERPRETER: I was aware of granny saying that she has daughter name Radmila and she also has a son named Lukica.
A.    WITNESS: Lukica.
Q.    Did you know that Radmila who was present with Mr Kurtovic was the daughter of Ljubica?
A.    INTERPRETER: Just by name I know of her. I have never seen and never met her. I’ve seen Radmila three times all up, not prior.
Q.    Lidija never told you that Radmila was Ljubica's daughter?
A.    INTERPRETER: She might have mentioned her but--

Ms Derkos said that afterwards she had told Lidija that Radmila “came by” and said that Lidija seemed normal about that (T 360.3).
Ms Derkos also gave evidence in chief as to a subsequent occasion when she says Radmila was at the aged care facility (to which she referred as a nursing home). Ms Derkos said that on that occasion Radmila was there (but without Mr Kurtovic) when she, Ms Derkos, arrived (T 352.2) and that Radmila had said to her that she, Ms Derkos, was “nasty” (T 352.8; 352.12).
Her evidence in chief as to the occasion when Ljubica was admitted to hospital in relation to her foot (which, as noted above, in cross-examination she put as being about a week after the first visit by Radmila and Mr Kurtovic at the aged care facility) was that she received a message from the nursing home to say that Ljubica was not well, had a high temperature and that needed to see a doctor. She said (T 352.34-352.41):

I was in the nursing home within 15 minutes, it’s quite close to my house, I have a car, we got ambulance and we took her to the hospital. She was seen at emergency, she was there for quite a while, three or four - three hours or so I was waiting. She was examined, she was checked out then they put her on a ward, she had to remain the hospital, her temperature was quite high and her blood sugar was high, and her foot, her heel wasn’t healing well and it wasn’t looking well.

It appears that Ljubica was admitted to the hospital on that occasion because the evidence went on as follows, with an account of Radmila and Mr Kurtovic being at the hospital (T 352.43-353.19):

Q.    Did you continue to visit her?
A.    INTERPRETER: Yes I came the next day, the next morning. Came the next morning in the hospital and found Radmila there again and Kurtovic as well.
Q.    I see, were they already there when you got there?
A.    INTERPRETER: Yes.
Q.    Now very slowly and carefully can you explain to the Court what you saw and what you heard with Radmila and Mr Kurtovic?
A.    INTERPRETER: He was dressed the same with the same briefcase and he was talking to a nurse, he wanted to see Ljubica. He wanted to go in her room and he wanted her to sign some paperwork and I told him “Stop being a nuisance, stop troubling the lady, granny is” - granny was calling out “Zdenka Zdenka come and help me”. But in meantime I was arguing with Kurtovic and in meantime nurse came and she ask “Who are you, are you relatives, are you family”, I have said “No I am not but I am like a carer, her daughter has asked me to keep an eye on and look out for her”. In the meantime doctor arrived and asked us to leave the hallway, both of us, Kurtovic and myself. In the meantime Lidija’s daughter Vanessa arrived and she remained with granny.
Q.    Before you left did you see any papers?
A.    INTERPRETER: No I did not.
Q.    But I think you said Mr Kurtovic had a briefcase?
A.    INTERPRETER: Yes but they came prior to me arriving there and they wanted to go in the room, granny’s room with the briefcase.

In cross-examination, Ms Derkos was adamant that Radmila and Mr Kurtovic were not with Ljubica when she was taken to hospital, saying that she, Ms Derkos, was with Ljubica. She appeared to accept that Radmila and Mr Kurtovic had been with Ljubica “both before and after she was taken to the hospital” (T 357.18) but later denied that they had visited Ljubica “before and after at various times” (T 357.23). (It seemed to me that there may have been some confusion in that evidence.)
Ms Derkos said that when they were in the hospital Lidija came to the hospital and that both Lidija and Radmila signed the paperwork in the hospital regarding the amputation of Ljubica’s leg (T 360.10). Asked whether those were the papers that Radmila wanted Ljubica to sign in the first place (something that appears implausible having regard to Ms Derkos’ account of that first meeting and its timing; as well as the fact that, on Ms Derkos’ account, it was Mr Kurtovic who had the papers and it seems unlikely that he, a non-family member, would have been given hospital consent papers for Ljubica to sign), Ms Derkos said that she did not know what the papers were; that all she saw was Mr Kurtovic handing or attempting to hand the papers to Ljubica (T 360.20) and that Ljubica said “I am not signing anything. Leave me alone” (T 360.25). Ms Derkos agreed that this caused Ljubica some distress and discomfort.
Ms Derkos agreed that she had continued to visit Ljubica when Ljubica went back to the nursing home (after Ljubica’s leg was amputated) but said that she did so then only once (not twice) a day because her holiday was over and because Lidija was there as well.
Questioned both in chief and in cross-examination as to Ljubica’s state of mind when she was in the aged care facility, Ms Derkos gave evidence that when she first visited Ljubica in the nursing home (and up to her admission to hospital) Ljubica was singing (T 349.37). She said that another lady from the Church would come and they would read the Bible and sing songs or hymns. She accepted that at some point Ljubica’s condition became worse – she said Ljubica would one day be sad and crying and the next day a bit better (T 352.24). Ms Derkos agreed that Ljubica was very upset that her foot was amputated; and that then she was no longer singing. She denied that Ljubica was not happy in the nursing home but described her as being “just a bit sad because she lost her foot” (T 361.21). That accords with Lidija’s matter of fact description of her mother’s state when in the aged care facility (T 305.36):

A. There were days when she was happy and there were days when she was not.

Anticipating what is to follow in this chronology, Ms Derkos was contacted in early October 2009 by the nursing home to ask if she had picked up Ljubica. She had not. She said that she was not in Zagreb at the time.

Summary of pre-2 October 2009 visits by Radmila/Mr Kurtovic

From the above, having regard to the evidence of Mr Kurtovic and Ms Derkos, there were at least the following visits to Ljubica by or on behalf of Radmila or Vase when she was in the aged care facility and hospital during the period from September 2009 to early October 2009: first, a visit by Mr Kurtovic and his cousin at the aged care facility some time in September 2009; second, a visit by Radmila and Mr Kurtovic at the aged care facility, on an occasion when Ms Derkos was with Ljubica and massaging her foot (at which time Ms Derkos says Radmila introduced Mr Kurtovic as a lawyer and said he had some papers for Ljubica to sign, which she refused to do); third, a visit by Radmila at the aged care facility (when Ms Derkos says she told Ms Derkos that she was “nasty”); possibly a further occasion when Radmila and Mr Kurtovic visited the aged care facility at or around the time Ljubica was hospitalised; and, last, an occasion at the hospital (after Ms Derkos had travelled there with Ljubica by ambulance) when Radmila and Mr Kurtovic were there (and Lidija arrived some time later) and when Ms Derkos says Mr Kurtovic again had a briefcase with him and she believes he was attempting to have Ljubica sign papers. On at least one occasion at the aged care facility and also when they were at the hospital, it appears that there was some commotion and Mr Kurtovic (and, on the hospital occasion, Ms Derkos also) was asked to leave.

The same submissions are made in relation to the Contract for a Gift (although of course that document does not purport to be a power of attorney and in any event I have found it not to be authentic).
Thus it is submitted that both documents, even if found to be genuine, are vitiated by incapacity – and therefore each is void and of no effect and not capable of giving rise to any representation, as alleged or at all.

Vase’s submissions

For Vase it is submitted that the relevant documents “are not contracts in the sense that there was no commercial bargain”; that “on one interpretation” the Contract for a Gift was intended to take immediate effect; and that otherwise the documents “appear to have been made with testamentary capacity in the sense that they dispose of the deceased’s assets and with a consciousness of disentitling the defendant personally” (referring in particular to the reference in the Contract for a Gift to this being “...because of what she [Lidija] did to me”).
Vase submits that there is not sufficient evidence to introduce a doubt regarding capacity at the relevant time, referring to the decision in d’Apice v Gutkovich (No. 2) [2010] NSWSC 1333, where there was a finding of testamentary capacity notwithstanding that the 93-year-old testatrix had suffered from dementia for five years and was, at the time of making her will, subject to Guardianship Tribunal orders.
Insofar as Lidija points to the hospital records in March 2010 in which reference is made to dementia (see CB 2/851; CB 2/853), Vase notes that the psychiatric notes or reports are not before the Court and that the extent of the dementia at that time is not in evidence.
Vase submits that the relevant date for assessing capacity (and/or undue influence) is 13 (and, in the case of the Contract for a Gift, 14) October 2009 when the relevant document(s) were executed and argues that there is no direct medical evidence concerning those dates. Counsel for Vase notes that there were no questions asked in cross-examination as to Ljubica’s apparent lucidity at that time, nor (he submits) as to any undue influence or pressure.
Pausing there, it is not apparent to me what use would be made of cross-examination of Vase or Mr Kurtovic on the topic of capacity, Vase having a clear interest in maintaining a position to suit his case and Mr Kurtovic having no medical qualifications and a dogmatic view as to Ljubica’s treatment in Zagreb. As for Mr Danilov, he was not in a position likely to be able usefully to give evidence of Ljubica’s mental state as at 13 October 2009, having no benchmark against which to measure it.
I do not accept that there was no cross-examination as to the topic of undue influence or pressure – there having been cross-examination of various of the witnesses (in particular, Vase, Mr Kurtovic and Mr Danilov) as to the circumstances in which Lidija was placed at the time (living with Radmila and others in an apartment at the top floor of the building with no lift, making it impossible for her to leave the apartment without assistance; being dependent on Radmila and Vase for her care; and not being able – at least unless she asked to do so – to speak privately with Mr Dabeski), from which an inference of undue influence or pressure might readily be drawn.

Determination as to capacity

The issue as to capacity strictly speaking only arises in relation to the Macedonian Power of Attorney (since I have concluded that the Contract for a Gift is not authentic). However, I will address the issue of capacity in relation to both documents.
It is well-known that whether there is capacity must be measured by reference to the kind of document or transaction which is in question.
As to the Macedonian Power of Attorney, accepting that this on its face does not purport to be irrevocable or enduring, the observations by Barrett J in Szozda as to the general nature of powers of attorney are nevertheless instructive. There, his Honour said (at [34]):

The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one’s affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done - sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home? Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?

Relevantly, in the present case, the question is whether it has been established that Ljubica did not have the capacity to understand that by this document she was delegating to Vase the ability to do what he wanted with the proceeds of sale (if it be sold) of the Granville property and, in particular, to deal with them as if that money was his own and without any liability to account to her for the money or to use it in any way for her benefit.
Ljubica may well have wanted to revoke the power of attorney granted in favour of Lidija and to prevent Lidija from moving to sell the Granville property, and she may well, as Mr Danilov says she expressed to him – though not in Vase’s presence – have wanted to leave everything to Vase but did she have the capacity to understand that the Macedonian Power of Attorney would empower Vase to treat the proceeds of sale of that property as his own (and to the exclusion of herself) if the property was sold during her lifetime?
In relation to the Contract for a Gift, had the question arisen, the question would be whether Ljubica had the capacity to understand that she was either agreeing to give or giving the whole of her interest in the Granville property to Vase (during her lifetime) and thus would be left with no assets?
I have real doubt as to Ljubica’s capacity to understand those documents (even had they been properly explained to her at the time, which is by no means clear). There were medical reports of dementia symptoms being observed in Ljubica in June/July 2009; Ljubica was by all accounts very unwell when she arrived in Skopje and the account given by Lidija of communications with Ljubica in which Ljubica accused her of cutting off her leg (which Lidijia found very upsetting and irrational) all suggest that there was some form of cognitive impairment on Ljubica’s part during at least June/July 2009 - October 2009.
However, I cannot draw inferences as to capacity from the circumstances in which the documents were presented to Ljubica; nor from the fact that Ljubica was not given independent advice about the documents. Nor can I draw an inference from the fact that a Guardianship Tribunal order was made a year later. To do so would be to reason in reverse. When assessing the actual medical and contemporaneous evidence available of Ljubica’s condition, I am not satisfied to the requisite standard of the extent of impairment at the relevant time (bearing in mind that it may have fluctuated from time to time) so as to permit a conclusion that Ljubica did not have capacity to execute the Macedonian Power of Attorney (or, had it been authentic, the Contract for a Gift) as at October 2009.
Therefore I cannot make any findings of incapacity.

Undue influence

Lidija’s defence raises both presumed undue influence and actual undue influence in relation to both the Macedonian Power of Attorney and the Contract for a Gift.

Presumed undue influence

Lidija asserts that both documents (assuming them to be found to be authentic) were procured in circumstances where there is presumed undue influence and argues that in the circumstances of this case the presumption has not been rebutted.
It is submitted that in this case, the presence and role of Radmila and Vase (Ljubica’s daughter and grandchild, respectively) give rise to a relationship where there was a presumption of influence. It is submitted that they had the role of ascendancy and trust and that Ljubica was totally reliant upon them (see Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41).
Reference is made to the principles set out by Powell J in Winter v Crichton (1991) 23 NSWLR 116 at 121, his Honour there contrasting the position between inter vivos transactions (where undue influence may be presumed; and will be established where there is an unconscionable use of a position of influence over the donor to obtain an advantage for the donee) and wills (where, if undue influence is alleged, the burden lies on the party alleging it to prove actual undue influence, which cannot be presumed; and where the influence necessary to be shown must amount to force or coercion destroying free agency):

1. … in relation to gifts, or other like transactions, made inter vivos, the relationship between the parties may be such as to lead the court to presume undue influence, the onus of displacing which presumption lying upon the donee of the gift, or the person benefiting from the transaction in question, …;
2. … in relation to gifts, or other like transactions, made inter vivos, undue influence will be held to have been established in a case in which - whether because a relevant presumption has not been rebutted, or because of direct evidence to that effect - it has held that the donee has, by the unconscionable use of a position of influence over the donor, obtained an advantage for himself…

Here, Lidija relies on the following matters for the submission that there is a rebuttable presumption that Vase (and Radmila) had undue influence over Ljubica: first, the motive and manner of Ljubica’s removal from the aged care facility; second, the lack of independent legal advice and the confinement of Ljubica in Radmila’s apartment in Skopje; third, Ljubica’s total reliance on Vase and Radmila; and, fourth, the lack of any consideration for the alleged gift. It is submitted that the presumption has not been rebutted.

Actual Undue Influence

As to the allegation of actual undue influence, Lidija accepts that what must be shown is actual coercion. However, Lidija points to the extract in Winter v Crichton by Powell J (at 121-122) of the following observations by Sir James Hannen P in Wingrove v Wingrove (1885) LR 11 PD 81 (at 82-83):

To be undue influence in the eye of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence.

It is submitted in the present case that the requirements for coercion (short of actual violence) have been met, referring to the matters set out above, in addition to the following: that Vase and Radmila were in a position to exercise actual influence; that the circumstances of Ljubica’s removal from Zagreb left her in a position of total reliance on Vase and Radmila for her every need; that Mr Kurtovic was a person with a known history of violence and Ljubica had refused earlier to sign any documents on the two occasions Mr Kurtovic went with Radmila to see Ljubica in Zagreb; and that Ljubica was immobile, physically weak and feeble. It is submitted that “the mere constant presence of Vase, Radmilla [sic] and Mr Kurtovic and her reliance on them was sufficient to bring about the desired result”.

Determination as to actual or presumed undue influence

Asprey JA adverted to the principles of presumed undue influence in Whereat v Duff [1972] 2 NSWLR 147 (on appeal to the High Court, the High Court concluded that the Court of Appeal was correct to dismiss the appeal, but gave different reasons: Whereat v Duff (1973) 1 ALR 363; 47 ALJR 540). Asprey JA said ([1972] 2 NSWLR at 167):

A court exercising an equitable jurisdiction will set aside a voluntary gift executed by a donor who at the time when the gift was made was the subject of what has been termed “undue influence”. ... [W]here the relations between the donor and the donee have at, or shortly before, the making of the gift been such as to raise a rebuttable presumption that the donee had an undue influence over the donor. ... the court sets aside the gift unless the donee rebuts the presumption. The court does not act on the ground that any wrongful act has been committed by the donee, but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom being abused: Allcard v. Skinner [(1887) 36 Ch D 145 at 171].

In the present case, I consider that the relationship of mother/child and grandmother/grandchild, coupled with the circumstances in which Ljubica was totally reliant on Radmila and Vase for her needs after she left (or, since there is no dispute that she was not mobile at the time, was removed from) the aged care facility in Zagreb and taken to Radmila’s unit in Skopje, are such as to have raised a rebuttable presumption that Vase was in a position of undue influence vis-à-vis his grandmother. It thus falls for him to rebut that presumption. I have concluded that he has failed to do so.
Relevantly, whatever the extent of any diagnosed symptoms of dementia on the part of Ljubica as at 13-14 October 2009, there is no dispute but that she was an elderly woman, she was distressed at the amputation of her leg in Zagreb, she was sufficiently unwell on arrival in Skopje to have been taken immediately to hospital there (and remained there for about two weeks), and she had no opportunity to obtain legal advice otherwise than in the company of the very person who was to benefit from the proposed transaction (and who had not only facilitated the engagement of the lawyer who drafted the documents but who had conferred in advance with that lawyer in relation thereto).
I would be very surprised (and indeed disappointed in the legal profession) if legal practitioners in this State considered that the provision of any advice to Ljubica in those circumstances could properly be characterised as independent legal advice (in the sense of legal advice independent of the potential, if not actual, influence of the party to benefit from the transaction – i.e., Vase). I have great difficulty seeing how Mr Dabeski could properly have satisfied himself that whatever instructions he had been given by Vase (at the private meeting at his home) or whatever instructions were taken from Ljubica (in the presence of Radmila, Vase and others, in Radmila’s unit) represented instructions freely and voluntarily given and with a proper understanding of what was involved in the transaction (including the legal consequences thereof). (In contrast, it appears from the correspondence sent to Vase by his own lawyer, Ms Muscolini (Exhibit 12), that the lawyer who drafted the February 2009 documents took steps to satisfy himself as to Ljubica’s capacity at the time she gave instructions in relation to those documents – and Lidija’s evidence is that Mr Vassili required her to leave the room while he took instructions from Ljubica – T 319.1-5.)
The circumstances in which the documentation (at least of the Macedonian Power of Attorney) was apparently prepared by Mr Dabeski and then executed by Ljubica before the public notary (with, in relation to the latter, apparently nothing more than the reading out of the document and a question as to whether Ljubica agreed with the document) are only too reminiscent of the not uncommon spectacle of elderly people being ferried from lawyer to lawyer by one or more opposing family members in order to execute documents favouring some members of the family over others.
I am not satisfied on the balance of probabilities that the presumption of undue influence has been rebutted by Vase in relation to either of the documents (though, as already noted, I have found the Contract for a Gift was not a genuine or authentic document so the issue does not strictly arise in relation thereto).
As to the claim of actual undue influence, while I accept that physical force is not necessary to overbear someone’s will, I am not persuaded on the balance of probabilities that it has been established that the conduct of Vase amounted to actual coercion.

Unconscionable Conduct

Again, this issue only strictly arises in relation to the Macedonian Power of Attorney given my finding that the Contract for a Gift is not an authentic document. However, I will deal the claims made in relation to both documents.
Lidija here invokes the principles articulated in Commercial Bank of Australia Ltd v Amadio (1993) 151 CLR 447; [1983] HCA 14: namely that here there was a situation of special disability or disadvantage such that the weaker party (Ljubica)’s ability to judge her own best interests is impaired; that the stronger party (Vase) knew of the special disadvantage; and that the conduct of the stronger party (Vase, though I note that Lidija’s submissions include Radmila in this context) in these circumstances is or has been unconscionable.
It is submitted for Lidija that the events at the nursing home in Croatia, involving Ljubica, constituted a premeditated scheme by Vase to procure documents to secure for himself the benefit of Ljubica’s estate in Australia.
In this regard, it is submitted that: there was no objective reason why Vase should have a concern for Ljubica’s welfare in Croatia (his own mother living in Skopje and being able to visit Ljubica if she so chose), and noting the evidence of Manuela that the relationship between Ljubica and Vase was not good; Vase’s actions went far beyond seeking to “rescue” Ljubica (since he took steps to procure documents seeking to ensure that he would benefit from her estate – on Lidija’s case while Ljubica was in the nursing home but in any event when he later arranged for Mr Dabeski to prepare one or more documents in Skopje); and that those actions make sense only if Vase had become aware (as he says he did in September 2009) that Ljubica had given Lidija a power of attorney (and if, as Lidija contends, he had also become aware that Ljubica had made a will favouring Lidija).

In that regard, Lidija submits that it is more likely that Vase became aware of the power of attorney favouring Lidija before he contacted Mr Kurtovic and asked him to go to Croatia, because on Vase’s own account he only made one visit to the aged care facility (on 2 October 2009, when he removed Ljubica from the facility in the company of Radmila) and this was (on Mr Kurtovic’s evidence) such a short visit that it is hardly likely that the issue of the power of attorney would have come up at that stage or that Vase would have located it on that occasion. Lidija also points to Ms Derkos’ evidence as to two occasions prior to 2 October 2009 on which Mr Kurtovic and Radmila attempted to have Ljubica sign some documents, once in the aged care facility and once at the hospital in Croatia. It is submitted that this conduct only makes sense if it was already known that Ljubica had signed documents that were then being sought to be revoked.
The matters that Lidija relies on in this context are those to which reference has already been made: that Ljubica was physically weak, immobile, and had difficulties with her eyesight. (One might well add to those matters that she was obviously recovering from the amputation operation and had been in a state of some distress about that; and that she was totally reliant on Vase and Radmila for her care while she was in Radmila’s apartment.) Lidija maintains that those matters (or at least her physical condition) were matters known to Vase. She submits that in those circumstances the conduct of Vase was unconscionable. I agree.
I consider that Vase’s conduct in those circumstances (in arranging the services of Mr Dabeski; in instructing him, initially in the absence of Ljubica, as to the proposed transaction; in not ensuring that Ljubica had truly independent advice as to the consequences of the proposed transaction; and in bringing about the situation in which Ljubica executed at least the Macedonian Power of Attorney in his favour at a time when she was totally dependent on him and on Radmila for her day to day needs and care) was unconscionable.
Ljubica was clearly in a position of special disability or disadvantage; Vase must have appreciated this at the time – he was certainly aware of her physical condition and dependence on himself and Radmila; and Vase’s insistence that he simply followed “the grandmother’s” wishes (or orders) is implausible but, even if correct, does not in my opinion remove the unconscionability of his conduct in so doing without affording her the opportunity of independent advice. It is not necessary to go further and attribute some kind of premeditated scheme to Vase (and/or Radmila) as contended for by Lidija (and I make no such finding).

Estoppel, laches and acquiescence defences

The remaining defences can be dealt with relatively quickly.
The estoppel defence relates only to the claim based on representations contained in the Contract for a Gift; and is based on the compromise of the family provision claims having constituted an implied representation that Vase had no extant claim on Ljubica’s estate. The first reference to the alleged Contact for a Gift appeared in Vase’s affidavit of 26 July 2016. It is submitted that it can be inferred that had Lidija known of that claim she would not have compromised the family provision proceedings. It is submitted that that inference can be drawn as a reasonable inference on its own and/or from the fact of her defence of these proceedings.
I accept that Vase’s silence about any alleged gift contract or any claim he might have to the whole of Ljubica’s estate at a time when the parties were negotiating a compromise of his and Radmila’s respective family provision claims would have conveyed to a reasonable person in Lidija’s position that he had no such claim – it surely would not have occurred to Lidija that Vase was “keeping up his sleeve”, so to speak, a claim that (if successful) would effectively trump both Lidija and Radmila’s claims in respect of their mother’s estate by removing all, or substantially all, the assets from the estate. And I accept that an inference should be drawn that, had Vase raised his present claim at that time, it is likely that no settlement of the family provision proceedings would have been reached, at least on a final basis. That seems to me to be the inevitable conclusion since it is difficult to see what point there would be in reaching a binding agreement as to the making of provision for Radmila out of Ljubica’s estate at a time when the parties were on notice of a claim by Vase that might lead to the whole of that estate being found to be held on constructive trust for him (and hence unavailable to satisfy any order for provision in Radmila’s favour).
As to whether in those circumstances it would be unconscionable for Vase now to assert such a claim, it is relevant to note that the costs incurred by Lidija in the hearing before Kunc J would presumably not have been incurred had Vase’s promissory estoppel claim been raised before the judicial settlement conference (but those costs have already been awarded in Lidija’s favour – on an indemnity basis).
Moreover, one difficulty with the estoppel defence (as I have already adverted to) is in pinpointing the time at which Vase became aware of the existence of facts that would have given rise to the promissory estoppel claim. As I understand his evidence, while he was aware of the Macedonian Power of Attorney from October 2009, he says he only received the Contract for a Gift document in about June 2016. That said, there is nothing to suggest that Vase would not have pressed his promissory estoppel claim based on the Macedonian Power of Attorney even without the Contract for a Gift document (and, in any event, I have concluded that the Contract for a Gift document was not authentic).
Had it been necessary to determine this estoppel defence, which in light of my earlier findings it is not, I would have been inclined to the view that even if made out the prejudice suffered by Lidija by reason of the time at which the promissory estoppel claim was brought could adequately be met by indemnity costs orders (secured if necessary over the Granville property had the promissory estoppel claim succeeded) and hence it would not have foreclosed the claim altogether.
The defences based on laches and acquiescence in my view would be determined in the same way. (I note that the amended defence did not plead any provision of the Limitations Act 1969 (NSW) in response to the plaintiff’s claims. However, in closing submissions, Counsel for Lidija raised the possibility that equity might apply the Limitation Act as a matter relevant to the exercise of discretion in applying the doctrine of laches. As to this, however, it was not suggested that this was a case where equity would act by analogy with the law; and therefore, according to recent commentary, the better view is that equity would not apply the statute and “the only question is whether some other equitable defence is available”: see M Leeming, “‘Not slavishly nor always’ – Equity and Limitation Statutes” in P Davies, S Douglas and J Goudkamp (eds), Defences in Equity (Hart Publishing, 2018), 293, at 308.) Certainly, Vase has on his own evidence known about the Macedonian Power of Attorney since 2009 and he has no explanation for the delay in bringing his promissory estoppel claim (indeed he accepted in the context of the Anshun estoppel/abuse of process defence that he cannot advance a case that it was reasonable for him not to have brought his promissory estoppel claim earlier (see Exhibit 10 - transcript 14 March 2018 at T 6.18-21).

Relief on the Cross-Claim

In respect of the relief sought in the cross-claim, consequent upon the conclusions I have reached above, I make the following observations.
First, I see no utility in the declaratory relief sought (prayers 1 and 5(a)) in relation to the revocation of the February 2009 power of attorney in favour of Lidija, in circumstances where that was not an enduring power of attorney and Ljubica is now deceased. Second, the declarations sought in prayers 3 and 5(b) are not appropriate (and unnecessary) where I have found that the Contract for a Gift is not authentic. Third, the relief sought in prayer 4 will not be granted in circumstances where I have not made a finding of incapacity.
Fourth, as to the relief sought in prayer 5(b), the appropriate declaration in my opinion is that the Macedonian Power of Attorney is of no effect. Although such a declaration might be thought to be unnecessary (it not being an enduring power of attorney and Ljubica now being deceased), given that reliance was placed on the representation allegedly contained in that document I consider that declaratory relief may have some utility.
I note that in submissions on the cross-claim in relation to the Macedonian Power of Attorney, Lidija did not refer to any cases concerning the grant of equitable relief setting aside a power of attorney (as distinct from a gift or contractual promise) due to undue influence.
Speaking at the level of general principle, two remarks may be made. First, a power of attorney is “a formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes” (P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (21st ed, 2018, Thomson Reuters), [2-039]). It does not involve the disposition or creation of any interest in property (Urquhart v Lanham [2002] NSWSC 119, [15]) and it generally has not been characterised as establishing a contract between donor and donee (G E Dal Pont, Powers of Attorney (2nd ed, 2015, LexisNexis), [1.16]-[1.18]). In my view, this may be an important point of difference to the established categories, such as gifts or other dispositions of property and contractual promises, where equity will intervene to set aside the transaction for undue influence. (For example, in Johnson v Buttress, Dixon J (as his Honour then was) referred to “the equitable jurisdiction to set aside an alienation of property”.)
Further, a power of attorney is ordinarily presumed to be revocable by the donor (see Walsh v Whitcomb (1797) 2 Esp 565; 170 ER 456; Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148 at 162; [1910] HCA 39, both referred to in Powers of Attorney at [11.10]). In my view, and noting that a power of attorney is a common law power (P W Young, C Croft and M L Smith, On Equity (Lawbook Co, 2009), [8.950]), the revocable nature of a power of attorney would mean that it would be futile for equity to intervene to set aside the power of attorney at the instance of the donor for undue influence (as distinct from declaring it void for lack of capacity). For those reasons, I do not see that a power of attorney would necessarily be classed together with other transactions, such as dispositions of property and contracts, which clearly may be set aside on the basis of undue influence.
Secondly, there are dicta suggesting that treating a power of attorney as “voidable” at the instigation of the donor could give rise to conceptual and practical difficulties. In Gibbons v Wright (1953) 91 CLR 423; [1954] HCA 17 (which was a case about lack of capacity, not about undue influence, and was not a case about a power of attorney), Dixon CJ, Kitto and Taylor JJ (in obiter) distinguished a deed conveying an interest in land, on the one hand, from a power of attorney, on the other, saying (at 444-445):

It is important to recognize… the unique character of a power of attorney as an instrument not affecting the title to property or the rights or obligations of persons, but merely conferring an authority. The conception of a power of attorney voidable by reason of lack of understanding in the grantor would not be without its difficulty; it would mean that an authority to bind the grantor would be retrospectively defeasible, with the result that acts done in exercise of that authority would be rendered void, not upon proof of such circumstances, amounting to the perpetration of a fraud by the other party to the act, as the grantor would have had to establish if he had done the act himself, but upon proof of circumstances constituting a fraud by the donee of the power, whose guilt might not be accompanied by any unfairness at all on the part of the other party. But whether or not this consideration has been at the back of it, the fact is that from early times the power of attorney of a lunatic has been regarded as void. [Emphasis added]

I have identified only one case in Australia where a power of attorney was treated as voidable, at the instigation of the donor, for undue influence: this being the decision of Foster J in Broadlands International Finance Limited v Sly (Supreme Court (NSW), Foster J, 24 April 1987, unrep), referred to by Dal Pont in Powers of Attorney (at [3.43]). The power of attorney there was executed by the defendant in favour of her husband, in support of a mortgage transaction instigated by him to finance a business he owned. Foster J held that the husband had made use of his superior knowledge of commercial transactions, and position of influence over his wife, to convince her to execute the mortgage and the power of attorney (at 46):

The matters to which I have just adverted together with the facts already found in this judgment, are such as to indicate that the husband acted with impropriety amounting to equitable fraud in his dealings with the Defendant. I am clearly of the view that, were the transactions of mortgage and granting of Power of Attorney confined to herself and her husband, she would clearly be entitled to have them set aside.

His Honour went on to conclude that the plaintiff bank must be taken to have had constructive notice of the husband’s equitable fraud (at 51) and that, as against the bank, the defendant was entitled to relief in respect of the mortgage (and, it appears, the power of attorney).

Finally, I note that, at general law (being the law of New South Wales which for present purposes I am treating as identical to the applicable law), it is clear that the death of the principal has the effect that the power of attorney is cancelled: this being “an application of basic agency law, which dictates that a principal’s death brings an agency to an end” (Powers of Attorney, [11.34]); see Re Williams [1917] 1 Ch 1 at 7 (Lord Cozens-Hardy MR) (“A power of attorney … becomes inoperative on the death of the person conferring it, and the recipient cannot claim to exercise the power after that person’s death”). As such, the Macedonian Power of Attorney could confer no authority on Vase after the deceased’s death.
However, Vase’s pleaded case here included that the Macedonian Power of Attorney contained representations which were capable of conferring substantive rights on him. For that reason, to ensure that no claim to substantive rights can in future be advanced under that document, I consider it appropriate to declare that the document entitled the Macedonian Power of Attorney was procured by undue influence (the presumption of undue influence not having been rebutted). I emphasise that this declaration is made on the basis that, to the extent that that document is capable of conferring substantive rights, it is now to be treated as having been avoided at the instance of the deceased, as having been procured by undue influence; noting, however, to the extent that the document merely conferred authority, it would no longer has any effect under general law principles due to the death of the principal.
Finally, although the relief sought contemplates declarations as to Radmila’s conduct, and she did not contest that relief, in the circumstances it is not necessary to say more than that she is clearly implicated in the unconscionable conduct and undue influence to almost the same, if not the same, extent as Vase, but (notwithstanding that she has filed a submitting appearance) I do not propose to make orders in relation to her position in her absence and without the benefit of submissions made on her behalf; nor is it necessary to do so. Otherwise I will grant the relief in the cross-claim in relation to the Macedonian Power of Attorney.

Conclusion

For the above reasons, I make the following orders:

Plaintiff’s further amended statement of claim be dismissed with costs.

Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect.

Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.

I will list the matter for directions if there is to be any application for special costs orders in respect of all or any part of the proceedings.

**********

Decision last updated: 03 October 2018

Medium Neutral Citation:	Antov v Bokan [2018] NSWSC 1474
Hearing dates:	12 April 2018; 24 and 30 May 2018; 7 June 2018; 12-14 June 2018; 22 June 2018
Date of orders:	03 October 2018
Decision date:	03 October 2018
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1. Plaintiff’s further amended statement of claim be dismissed with costs. 2. Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect. 3. Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.
Catchwords:	ESTOPPEL – Promissory estoppel – Plaintiff claimed to have relied upon expectation or assumption created by representations by the deceased that upon sale of her property at Granville the plaintiff would be entitled to use of the proceeds and that the deceased would leave her entire assets as a gift to the plaintiff – Representations allegedly contained in a Macedonian Power of Attorney and Contract for a Gift allegedly executed by the deceased in October 2009 – Whether the documents, if authentic, contained the pleaded representations – Whether the plaintiff relied on the representations as pleaded such that detriment would now be suffered if the expectation or assumption not fulfilled – Held plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded – Claim for relief on basis of promissory estoppel dismissed EQUITY – Undue influence – Presumption of undue influence where documents executed by grandparent in favour of grandchild – Held presumption had not been rebutted in relation to Macedonian Power of Attorney – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect EQUITY – Unconscionable conduct – Whether execution by the deceased of the Macedonian Power of Attorney was affected by unconscionable conduct – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 73 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Evidence Act 1995 (NSW), ss 48, 49, 51, 55, 56, 57, 58, 67, 68, 69, 183 Guardianship Act 1987 (NSW) Limitations Act 1969 (NSW) Powers of Attorney Act 2003 (NSW), s 16 Practice Note SC Eq 7 Succession Act 2006 (NSW), ss 59, 95 Uniform Civil Procedure Rules 2005 (NSW), rr 6.3, 6.4, 31.3, 31.5, 36.4
Cases Cited:	Antova v Bokan [2017] NSWSC 115 Antova v Bokan (No 2) [2017] NSWSC 556 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 Attorney-General (Hong Kong) v Humphreys Estate [1987] 1 AC 114 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 2017 FCR 448; [2012] FCA 1355 Arfaras v Vosnakis [2016] NSWCA 65; (2016) 18 BPR 35,819 Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14 Barnes v Alderton [2008] NSWSC 107 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Bobolas v Waverley Council (No 4) [2015] NSWCA 337 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Broadlands International Finance Limited v Sly (Supreme Court (NSW), Foster J, 24 April 1987, unrep) Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 Chong v CC Containers Pty Ltd (2015) 49 VR 402 at 465; [2015] VSCA 137 Commercial Bank of Australia Ltd v Amadio (1993) 151 CLR 447; [1983] HCA 14 Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; (2014) 17 BPR 33,457 Cooper v Hobbs [2013] NSWCA 70 CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798 d’Apice v Gutkovich (No. 2) [2010] NSWSC 1333 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 DHJPM Pty Ltd v Blackthorn Resources Limited (2011) 83 NSWLR 728; [2011] NSWCA 348 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 DPP v Pinn [2015] NSWSC 1684 Fabre v Arenales (1992) 27 NSWLR 437 Ghosn v Principle Focus Pty Limited (No. 2) [2008] VSC 574 Giannarelli v Wraith (No 2) (1991) 171 CLR 592; [1991] HCA 2 Gibbons v Wright (1953) 91 CLR 423; [1954] HCA 17 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 Idoport Pty Ltd v National Australia Bank [2000] NSWSC 1215 In the matter of Ledir Enterprises [2013] NSWSC 1332; 96 ACSR 1 Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41 Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607; 96 ACSR 691 Multisteps Pty Ltd v Specialty Packaging Aust Pty Ltd [2018] FCA 587 Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; 67 ALJR 170 O’Meara v Dominican Fathers (2003) 153 ACTR 1; [2003] ACTCA 24 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Re Williams [1917] 1 Ch 1 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148; [1910] HCA 39 Spence v Demasi (1988) 48 SASR 538 Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 Sullivan v Sullivan [2006] NSWCA 312; [2007] ANZ Conv R 54 Szozda v Szozda [2010] NSWSC 804 Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Tyne (Trustee) v UBS AG (No 2) (2017) 250 FCR 341; [2017] FCAFC 5 Urquhart v Lanham [2002] NSWSC 119 Vale v Vale [2001] NSWCA 245 Walsh v Walsh [2012] NSWCA 57 Walsh v Whitcomb (1797) 2 Esp 565; 170 ER 456 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7 Wentworth v Lloyd (1884) 19 HL Cas 589; 11 ER 1154 Whereat v Duff (1973) 1 ALR 363; (1973) 47 ALJR 540 Wingrove v Wingrove (1885) LR 11 PD 81 Winter v Crichton (1991) 23 NSWLR 116
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Publishing) Australian Law Reform Commission, Evidence, Report No 26 (1985) G E Dal Pont, Powers of Attorney (2nd ed, 2015, LexisNexis) M Leeming, “‘Not slavishly nor always’ – Equity and Limitation Statutes” in P Davies, S Douglas and J Goudkamp (eds), Defences in Equity (Hart Publishing, 2018), 293 P Watts and FMB Reynolds, Bowstead and Reynolds on Agency (21st ed, 2018, Thomson Reuters) Stephen Odgers, Uniform Evidence Law (10th ed, Thomson Reuters, 2012)
Category:	Principal judgment
Parties:	Vase Antov (Plaintiff) Lidija Bokan (First Defendant) Radmila Antova (Second Defendant) (Submitting appearance)
Representation:	Counsel: M Sahade (Plaintiff) MJ Heath (First Defendant) Solicitors: Oliveri Lawyers (Plaintiff) Matthews Folbigg (First Defendant)
File Number(s):	2015/00331929
Publication restriction:	Nil