Bar-Mordecai v Hillston

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      BAR-MORDECAI v HILLSTON [2004]  NSWCA 65

FILE NUMBER(S):
40225/03

HEARING DATE(S):               22, 23, 24 and 25 September 2003

JUDGMENT DATE: 17/03/2004

PARTIES:
Michael BAR-MORDECAI v Allan HILLSTON

JUDGMENT OF:       Mason P Tobias JA Davies AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          ED 3240/98, ED 1707/99, ED 3039/02

LOWER COURT JUDICIAL OFFICER:     Bryson J

COUNSEL:
Appellant: In person
Respondent: J Whittle SC/ B Burke

SOLICITORS:
Appellant: In person
Respondent: Shaw McDonald Pty Ltd

CATCHWORDS:
UNDUE INFLUENCE - doctor-patient relationship - whether presumption of influence rebutted - whether de facto relationship existed - FAMILY PROVISION ACT 1982 - whether "eligible person" - whether extension of time should be granted - PROBATE - whether misconduct by administrator (ND)

LEGISLATION CITED:
Wills, Probate and Administration Act 1898
Family Provision Act 1982

DECISION:
Motion to admit further evidence dismissed with costs.  Appeal in the undue influence proceeds upheld in part.  Orders in relation to the property at Eastbourne Avenue Clovelly set aside.  Appeals in the family provision proceedings and probate proceedings dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40225/03

MASON P
TOBIAS JA
DAVIES AJA

Wednesday 17 March 2004

Michael BAR-MORDECAI v Allan HILLSTON

BACKGROUND
This was an appeal arising out of three proceedings heard concurrently by Bryson J. The respondent is the administrator of the estate of the late Eveline Hilston (the deceased). The three proceedings were as follows:

Undue influence proceedings – the administrator sought to set aside gifts made to the appellant by the deceased on the basis that they were obtained by the exercise of undue influence by the appellant as the deceased’s medical practitioner. Bryson J upheld this claim, finding that undue influence was the true and only explanation for the gifts. The gifts and transactions were set aside.

Family provision proceedings – were brought by the appellant under the Family Provision Act 1982 based upon his claim to have been the deceased’s de facto husband at the time of death. Bryson J dismissed the claim because the appellant was not an “eligible person” and because his Honour was not prepared to extend the time for their late commencement. There was held to be no sustainable analogy to a marital relationship.

The probate proceedings - were brought by the appellant claiming revocation of the letters of administration granted to the respondent based upon allegations of misconduct by the administrator. Bryson J dismissed these proceedings finding that no basis had been established for the allegations.

It was common ground that the appellant was the deceased’s treating medical practitioner at all material times. In 1983 the deceased was 72 and the appellant was 36. From this time until the death of the deceased in 1994, the appellant and the deceased lived in the same residence, shared holidays and attended synagogue together. The deceased worked without pay in the appellant’s surgery. A sexual relationship spanned the period of cohabitation.

During the…

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Details
Case
[2004] NSWCA 65
Decision Date

CaseChat Overview and Summary

The case of *Bar-Mordecai v Hillston* concerned an appeal from decisions made by Bryson J. The primary dispute involved claims of undue influence concerning gifts made by the deceased, Mrs Eveline Hillston, to the appellant, Mr Bar-Mordecai, who was her treating medical practitioner. The appeal also addressed family provision proceedings and probate proceedings.

The legal issues before the court included whether the presumption of undue influence arising from the doctor-patient relationship had been rebutted, and whether the relationship between the deceased and the appellant could be characterised as a de facto relationship. The court was also required to consider whether the appellant was an "eligible person" for the purposes of the *Family Provision Act 1982* and whether an extension of time should be granted in those proceedings. Finally, the court considered allegations of misconduct by the administrator in the probate proceedings.

The court reasoned that the characterisation of the relationship as de facto was not determinative of the undue influence claim. Instead, the focus was on the precise circumstances of each gift and how the deceased's intention to make the gifts was formed, given the established doctor-patient relationship. The court found that the appellant's acquaintance with the deceased arose in a professional context, and the relationship of medical attendant and patient was well established before any alleged de facto relationship commenced. The court dismissed a motion to admit further evidence, finding it was not fresh evidence and not compelling.

The appeal in the undue influence proceedings was upheld in part, with orders relating to a property at Eastbourne Avenue, Clovelly, and the rent received therefrom being set aside. The appeals in the family provision and probate proceedings were dismissed. Costs orders were made in relation to these various proceedings.

Orders

Orders of the court

Motion to admit further evidence dismissed with costs. Appeal in the undue influence proceeds upheld in part. Orders in relation to the property at Eastbourne Avenue Clovelly set aside. Appeals in the family provision proceedings and probate proceedings dismissed with costs.

Background

Background to the litigation

This broad answer threw up legal and factual issues which Bryson J addressed and which are re-agitated in the appeal. At this stage, we simply note that Bryson J did not proceed as if the putative familial relationship was irrelevant or determinative. He said (at [49]):In my opinion the characterisation of the relationship between Mrs Eveline Hillston and Mr Bar-Mordecai as a de facto relationship is not itself determinative for the claim to set aside gifts; what are of significance are an examination, so far as evidence admits, of the precise circumstances of the parties and of each gift and consideration of how the intention of Mrs Eveline Hillston to make each gift was produced. Characterisation of her relationship with Mr Bar-Mordecai as a de facto relationship or as analogous to a marriage is not the central subject for consideration, and is not a ground of defence.The primary facts touching the relationship as found by Bryson J The pleadings in the undue influence proceedings admit that in August 1983 the deceased was 72 and the defendant (the present appellant) was 36. It is also admitted that, from about that time until the death of the deceased in 1994, the appellant was the deceased’s treating general medical practitioner; that the couple lived in the same residence, shared holidays, attended synagogue and religious celebrations together; and that the deceased worked with the appellant in his surgery. Each side is well placed to insist that the pleadings be considered seriously, because they were formulated with considerable care and frequently amended. The appellant represented himself during the trial, but his pleadings were drawn with precision, evidencing considerable skill on his part and/or legal assistance behind the scenes. The deceased was born in 1910. She married her husband, Jack Henry Hillston, in 1933. The couple emigrated to Australia in 1938 and lived together at Forestville and latterly at a home unit at Mount Street, Clovelly. In June 1982 Jack Hillston was disabled by a stroke which reduced him to a vegetative condition. The deceased visited him frequently in hospital. Jack Hillston died on 4 August 1983. The deceased had been very attached to her husband and she visited his graveside monthly until the middle of 1993 when her own health began to decline. The appellant first had contact with the deceased when she requested him to see and treat her husband, which he did from between 1979 until Jack Hillston’s death in 1983. He certified Jack Hillston’s cause of death. The appellant was also the deceased’s general practitioner from at least 1981 onwards. Bryson J held (at [10]) that:Mr Bar-Mordecai's acquaintance with Mr Jack Hillston and Mrs Eveline Hillston came into existence in the context of his treating Mr Jack Hillston, and later Mrs Eveline Hillston, and he first entered their home and spent time in her company in the context of professional attendances. Before Mr Jack Hillston died the relationship of medical attendant and patient between Mr Bar-Mordecai and Mrs Hillston was well established. It was not correct in fact to contend that the relationship, allegedly a de facto relationship, arose as a result of an initial social relationship.

Evidence

Evidence Before The Court

In the circumstances, the proper context for addressing any claim that estate moneys were “squandered” by the current administrator is the making of costs orders in the several proceedings. The probate proceedings litigated before Einstein J are ancient history. We shall address the costs of these proceedings later in these reasons.Application to admit additional evidence A motion was filed seeking leave to lead additional evidence. None of it is fresh evidence in the sense of evidence not available at trial. Some of it is evidence tendered at trial and rejected. Some of it is already in evidence! Some of it is unrelated to any ground of appeal. We have already addressed the submissions relating to the cheque butts whose tender was rejected at trial. The additional material was available to the appellant at trial and, in any event, is not compelling in its impact. The various motions are dismissed with costs.Disposition The appellant’s motions to admit further evidence are dismissed with costs. The appeal in the undue influence proceedings (ED 3240 of 1998) is upheld in part. The declarations, orders and judgment relating to 30 Eastbourne Avenue, Clovelly and the rent received therefrom are set aside. Any questions of costs in relation to these proceedings and the appeal therefrom will be determined on the papers. Our provisional view is that the respondent should receive 60% of the trial costs and pay 75% of the appeal costs, bearing in mind the limited impact of the latter order (see Cachia v Hanes (1994) 179 CLR 403). The respondent should have a certificate under the Suitors Fund Act 1951 if qualified. Direct the respondent to file and serve within 21 days a memorandum setting out any ancillary orders sought in relation to these proceedings and the respondent’s submissions as to costs in light of the reasons of the Court. Direct the appellant to file and serve any submissions in reply within a further 21 days. Liberty to apply to Mason P upon 3 days notice. The appeals in the family provision proceedings (ED 1707 of 1999) and the probate proceedings (ED 3039 of 2002) are dismissed with costs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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