Gill v Garrett

[2020] NSWSC 795

Supreme Court

New South Wales

Medium Neutral Citation:

Gill v Garrett & Ors [2020] NSWSC 795

Hearing dates:

18, 19, 20, 21, 22, 25, 26, 27, 28, 29 March & 14 May 2019

Date of orders:

16 July 2020

Decision date:

16 July 2020

Jurisdiction:

Equity

Before:

Slattery J

Decision:

No contract made between the plaintiff and the deceased. Claim in equitable estoppel fails. Claim in restitution fails. No further provision made out of the estate of the deceased under the Succession Act. On the cross claim, judgment for possession entered in favour of the executors and the cross defendant found in breach of fiduciary duty and to have engaged in unconscionable conduct in relation to the deceased.

Catchwords:

ESTOPPEL – Equitable estoppel – plaintiff lives in the Paddington terrace house of a retired doctor from 2004 until the retired doctor (“the deceased”) died in 2015 – the plaintiff continued to live in the Paddington property – plaintiff alleges the deceased promised to transfer the Paddington property to the plaintiff after the deceased’s death, if the plaintiff cared for the deceased until then – the deceased died a few months after his family limited any care the plaintiff could continue to provide to him – the deceased’s executors, the defendants, deny the deceased made the promises the plaintiff alleges – even if the promises were made, the executors contest that the plaintiff relied upon them and contend that the plaintiff suffered no detriment.

CONTRACTS – Formation – the plaintiff claims the alleged promises constitute a contract between the plaintiff and the deceased – whether the alleged promises were made – whether the alleged promises constituted a contract – whether the promises were enforceable – whether any contract so made should now be set aside in equity for the plaintiff’s unconscionable conduct or under the Contracts Review Act 1980 – an account of the plaintiff’s alleged unconscionable conduct.

RESTITUTION – Restitution for non-monetary benefits – plaintiff claims to have conferred benefits on the deceased in the form of caring services – the deceased accepted the services – any contract that might govern the provision of those caring services may be unenforceable – whether the deceased was unjustly enriched by the receipt of the caring services – whether relief in restitution is available to the plaintiff against the deceased’s estate in respect of the caring services provided – whether other benefits received by the plaintiff from the deceased or his estate exceed the value of any claim in restitution available to the plaintiff against the deceased’s estate.

SUCCESSION – Family provision – Claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006, Ch 3 - plaintiff lives in the deceased’s household and is dependent upon him – the plaintiff is an “eligible person” under Succession Act 2006, s 57 and able to bring a family provision claim against the deceased’s estate – plaintiff receives a legacy of $200,000 under the deceased’s 2008 will – legacy under 2008 will calibrated to cover the repayment of some $98,000 in debts then owing by the plaintiff to the deceased – since the making of the 2008 will the plaintiff’s debts to the deceased have increased – whether adequate provision made for the plaintiff out of the deceased’s estate for the plaintiff’s maintenance, education and advancement in life – if not, what additional provision should be made for the plaintiff out of the deceased’s estate.

EQUITY – Fiduciary duties – Breach – The executors seek by way of cross-claim a declaration that the plaintiff and the deceased were in a fiduciary relationship – executors seek equitable compensation for breach of fiduciary duties by the plaintiff – where the plaintiff denies the existence of a fiduciary relationship – where the deceased was in a position of special disadvantage in relation to the plaintiff and not capable of understanding his financial affairs and assets – if a fiduciary relationship exists, whether the plaintiff gained monies for his own personal advantage by profiting from and misusing his fiduciary position beyond any authorised remuneration from which he was legitimately entitled – unconscionable conduct – whether in the alternative the plaintiff/cross defendant engaged in unconscionable conduct by taking advantage of the deceased’s position of special disadvantage.

Legislation Cited:

Bankruptcy Act1966, s 153A

Contracts Review Act 1980

Conveyancing Act 1919, s 54

Succession Act 2006, ss 57, 57(1)(e), 57(1)(f), 59, 59(1)(b), 59(1)(c), 60(2)(i), 60(2)(m)

Cases Cited:

Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; [1989] ANZ ConvR 621

Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662

Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 368 ALR 1

Chan v Zacharia (1984) 154 CLR 178

Churton v Christian (1988) 13 NSWLR 241

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Dable v Peisley [2009] NSWSC 772

David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353

Delaforce v Simpson-Cook (2010) 78 NSWLR 483

Diver v Neal (2009) 2 ASTLR 89

Drury v Smith [2012] NSWSC 1067

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498

Evans v Levy [2011] NSWCA 125

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Gibbons v Wright (1954) 91 CLR 423

Giumelli v Giumelli (1999) 196 CLR 101

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

Lumbers v W Cook BuildersPty Ltd (in liq) (2008) 232 CLR 635

Maguire & Tansey v Makaronis (1997) 188 CLR 449

Mann v Paterson Constructions Pty Ltd (2019) 373 ALR 1

Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221

Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165

Re Fulop (deceased) (1987) 8 NSWLR 679

Regent v Millett (1976) 133 CLR 679

Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516

Sassoon v Rose [2013] NSWCA 220

Sidhu v Van Dyke (2014) 251 CLR 505

Singer v Berghouse (No. 2) (1994) 181 CLR 201

Ultra Tune Australia Pty Ltd v McCann (1999) 30 ACSR 651

Van Dyke v Sidhu (2013) 301 ALR 769

Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387

Watson v Foxman (1995) 49 NSWLR 315

Weeks v Hrubala [2008] NSWSC 162

Ye v Fung (No 3) [2006] NSWSC 635

Category:

Principal judgment

Parties:

Plaintiff: Jason Adrian Francis Gill
First Defendant: Alice Jemima Mary Garrett
Second Defendant: Catherine Sarah Jane Garrett
Third Defendant: Thomas Peter John Garrett

Representation:

Counsel:
Plaintiff/Cross Defendant: S. Galitsky
Defendants/Cross Claimants: E. Glover

Solicitors:
Plaintiff/Cross Defendant: Kirk Stewart McKenzie, Haylen McKenzie Solicitor
Defendants/Cross Claimants: Michael Paul Carroll, LHD Lawyers

File Number(s):

2016/328585

Publication restriction:

No

Judgment

1. Decorum mattered to the late Dr William (“Bill”) Garrett. To encounter life’s ugly moments he adopted a courtly motto, which he enjoyed repeating in its richly expressive French form, toujours la politesse (politeness always). This part of Dr Garrett’s character assists in understanding some curious puzzles at the heart of this unusual case.

2. Dr Garrett was a brilliant Australian medical scientist, who in the 1960s pioneered the worldwide development of diagnostic ultrasound to monitor pregnancies. He died in November 2015.

3. From late 2003, the plaintiff, Mr Jason Gill, lived in Dr Garrett’s Paddington terrace house situated near Five Ways (“the Paddington property”). Jason Gill claims in these proceedings that in 2009 Dr Garrett promised him the title to the Paddington property after Dr Garrett’s death, provided Mr Gill cared for Dr Garrett until then. Mr Gill says he fulfilled that promise and is now entitled to the Paddington property either in contract or pursuant to doctrines of equitable estoppel.

4. Dr Garrett’s executors, his three children, Jemima, Cathy and Tom Garrett the defendants to these proceedings, deny any such promise was made. Alternatively, they contend that if such a promise was made to Mr Gill, that it was not contractual or that Mr Gill either did not rely on it or did not suffer any detriment as a result. The defendants contend further in the alternative that, by reason of Dr Garrett’s declining capacities at the time of the alleged promise, the Court should set aside any contract Mr Gill may be found to have made with Dr Garrett in 2009 that was based on these promises, either due to Mr Gill’s alleged unconscionable conduct, undue influence or in the exercise of the Court’s Contracts Review Act 1980 jurisdiction.

5. Mr Gill brings two other claims in the alternative. First, he alleges that if the claimed promise to him is not established that, he should be given restitution for the value of the care services he provided to Dr Garrett in his declining years. In answer to this the defendants contend that the benefits Mr Gill derived from his living arrangements at the Paddington property, together with advances and other benefits in kind that Dr Garrett conferred on Mr Gill, well exceed the market value of any casual care services that Mr Gill provided to Dr Garrett.

6. Finally, and further in the alternative, Mr Gill claims an order for further provision out of Dr Garrett’s estate under Succession Act 2006, s 59. It is not in issue that Mr Gill is an “eligible person” entitled to make a claim under the Succession Act on the basis that he lived in the same household as Dr Garrett and was dependent upon him. Dr Garrett made a will in 2008 that gave a legacy of $200,000 to Mr Gill. At the time Dr Garrett executed his 2008 will, this legacy would have allowed Mr Gill to repay $98,000 in loans, which Mr Gill then owed to Dr Garrett. In answer to the Succession Act claim the defendants say that Dr Garrett’s 2008 will made adequate provision for Mr Gill and that no further order for provision for him from the estate is now warranted.

7. The executors obtained a grant of probate of the deceased’s 2008 will on 25 February 2016. After a number of bequests, including that to Jason Gill, the defendants take the residue of Dr Garrett’s estate in equal shares. The gross distributable estate after deducting estimated unpaid expenses and liabilities is said to be approximately $4,571,300.91. The Paddington property is the primary remaining asset in the estate and is part of the residue. It has been conveyed into the names of the executors. At the time of trial the market value of the Paddington property was estimated to be approximately $2 million. Jason Gill has continued to live in the Paddington property since Dr Garrett’s death whilst this litigation was unresolved. Tom Garrett has also lived there during this period.

8. The executors have filed a cross-claim. In the event that the plaintiff’s claim to an interest in the Paddington property is unsuccessful, the executors cross-claim against Jason Gill for possession of the property. In the alternative, if Jason Gill is successful in his claim for the Paddington property, they claim restitution for various expenditures upon and improvements that they made to the property in the belief that the property was theirs.

9. The hearing of these proceedings was conducted over 10 days: 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29 March 2019. After written submissions, a further date was allocated for oral submissions on 14 May 2019. Mr S. Galitsky of counsel, instructed by Kirk Stewart McKenzie of Haylen McKenzie Solicitors appeared for the plaintiff/cross defendant. Ms E. Glover of counsel, instructed by Michael Paul Carroll of LHD Lawyers appeared for the defendants/cross claimants.

10. The parties and witnesses in these proceedings generally referred to one another by their first names. The Court will occasionally do the same in these reasons without intending any disrespected to the parties. But these reasons mostly refer to witnesses and parties by their full names, or collectively in the case of the defendants by reference to their role as executors.

11. A narrative of general facts relevant to the issues follows. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected. The evidence in this case was detailed and the narrative is therefore quite lengthy. But it is still a selection of the more important evidence of greatest relevance to the issues.

12. Later in these reasons, when the executors’ cross-claim is considered, a separate narrative of the financial arrangements between Mr Gill and Dr Garrett appears. These financial arrangements are best understood when analysed together.

13. But before the narrative commences, a brief overview of the credibility of each of the parties is sketched. Credibility analysis of non-party witnesses appears in the course of the narrative, when the evidence of those witnesses is considered.

Credibility of Parties

14. Jason Gill. The plaintiff, Jason Gill, was an unreliable witness. Multiple examples of that unreliability are included in the narrative below. The Court has rejected his evidence, or preferred that of other witnesses often in these reasons. On essential questions Jason Gill took refuge in vagueness and obfuscation to avoid difficulties that confronted his case. But despite Mr Gill’s unreliability about important parts of the contested history, he did provide care for Dr Garrett in his own way and in a manner that created support and comfort to Dr Garrett in his declining years.

15. Jemima Garrett. The first defendant, Ms Jemima Garrett, is a journalist with the Australian Broadcasting Corporation (“ABC”). Ms Jemima Garrett acted as her father’s attorney. She was first appointed to that role under an enduring power of attorney in 2003. She was an excellent witness. Her careful journalistic skills were on full display in these proceedings. She records in her affidavits a highly detailed account of events concerning her father, including complete conversations in which she was involved with him and with other parties. She could do this because she had documented meticulous, reliable and detailed file or emailed notes of her conversations and interactions with others in the unfolding events relevant to the issues in these proceedings. She was able to draw upon these file notes and emails to aid her recollections. She was not discredited in cross-examination. The Court almost universally accepts her accounts of these conversations and of other events that she witnessed.

16. Catherine Garrett. The second defendant, Ms Cathy Garrett, lives in California. She came out to Australia especially for the trial. She exhibited striking characteristics of candidness, precision, directness and mastery of detail. She attended closely to the questions asked of her and gave honest answers. She was a wholly reliable witness.

17. Tom Garrett. The third defendant, Dr Tom Garrett, is a retired scientist. He thought deeply about all aspects of the proceedings and had done so for many years. He was a witness of truth. He produced affidavits that carefully analysed his father’s financial affairs and which included graphs showing trends in Jason Gill’s spending over the years. Tom Garrett answered questions with detailed responses. The length of his answers was not an attempt to obfuscate the questioner. Rather, he wished ensure that the Court was fully apprised of all his reasons for taking the actions that he did in his father’s declining years.

18. These reasons more often refer to the evidence of Jemima Garrett than Cathy Garrett or Tom Garrett, principally because her observations of their father were almost continuous. But the Court fully accepts the evidence of Cathy Garrett and Tom Garrett about the events in which they were involved. The evidence of all three siblings is generally preferred to that of Jason Gill.

19. Eight witnesses were called in Mr Gill’s case to give evidence of Dr Garrett talking about giving the Paddington property to Jason Gill. These witnesses were mostly from the local area, so for convenience they are described collectively in these reasons as “the Paddington witnesses”.

20. The Court’s observations in thee reason upon the credit of the parties and the other witnesses were recorded on the days that they each gave evidence.

Dr Garrett, Mr Gill and the Paddington Property – 1996 to 2015

21. The principal events the subject of these proceedings span the 19 years between 1996, when Dr Garrett and Jason Gill met, and 2015, when Dr Garrett died. But the family and personal narratives of Dr Garrett and Jason Gill commence long before that.

Dr Bill Garrett and His Family – Before 1996

22. Dr Bill Garrett was born in November 1927. In 1951, he graduated second in his year in medicine and surgery from the University of Sydney. Thereafter he worked as a ship’s doctor to pay for his passage to Britain where he undertook further study and gained a Doctorate in Philosophy in Medicine from the University of Oxford in 1955. He also received a Doctorate in Medicine from the University of Sydney in 1962.

23. In 1957, Dr Garrett met and married his wife Nancy, whilst he was studying in England. Born in Yorkshire, she too graduated in medicine. They returned to Australia where they jointly specialised in obstetrics and gynaecology and where their three children, Jemima, Tom and Cathy were born.

24. In 1959, Dr Garrett joined a small interdisciplinary team of research scientists and doctors investigating whether high frequency sound waves could be applied to image the pregnant uterus. By 1965, Dr Garrett, and the members of the team, had developed the foundations of ultrasonic pregnancy imaging as part of clinical practice at the Royal Hospital for Women in Paddington. By the early 1970s, ultrasound technology was in widespread use throughout the international medical world to assist in monitoring pregnancy. Dr Garrett was made a member of the Order of Australia in 1985 for services to medicine, particularly the science of obstetrics ultrasound. During his career, Dr Garrett was Director of Medical Imaging at the Royal Hospital for Women and served on international and national committees. Dr Garrett published over 100 scientific papers and was a fellow of the Royal Australasian College of Surgeons, a fellow of the Royal Australian College of Obstetrics and Gynaecology and an honorary fellow of the Royal College of Radiologists.

25. Dr Garrett was a person of enormous energy and enthusiasm and was closely involved in the activities of all his children. He and his wife Nancy had a very happy marriage.

26. Tom Garrett and Cathy Garrett moved away from Sydney to pursue their careers. But Jemima Garrett remained in Sydney and consequently her interactions with her father and with Jason Gill were more frequent than were her siblings. Jemima Garrett saw it as her responsibility to keep her siblings fully informed about their father. Her regular emails to them, Tom Garrett in Melbourne and Cathy Garrett in California, are a valuable source of accurate real time historical information about the well-being and progress of Dr Garrett in his declining years.

27. Bill and Nancy Garrett, and their three children lived on the north shore of Sydney, in Lindfield until 1981. That year the family moved to a terrace house in Goodhope Street, Paddington. The family owned a holiday house at MacMasters Beach on the Central Coast and after the family moved to Paddington they acquired an investment property there but it was sold in 2006. In addition, Dr Nancy Garrett was entitled to an income earning leasehold property in West Yorkshire (“the West Yorkshire property”). In July 1994 she transferred a half share in the West Yorkshire property to Dr Garrett.

28. In December 1994, Dr Nancy Garrett died suddenly and unexpectedly. Her death affected Dr Garrett profoundly. He saw little point in continuing to work and he retired from medical practice in 1995. He was then still living in the terrace house in Goodhope Street, Paddington. But in 1998, Dr Garrett decided to move from Goodhope Street to the Paddington property, in Ormond Street, Paddington.

22. Upon Dr Nancy Garrett’s death, the three children inherited their mother’s half share in the West Yorkshire property and Dr Garrett retained the other half share. From that time on, until he became incapable of looking after his own financial affairs, Dr Garrett managed the West Yorkshire property for them all.

Mr Jason Gill - Before 1998

30. Mr Gill was born in New Zealand in May 1957 and is a New Zealand citizen. He was 30 years younger than Dr Garrett. He obtained employment in the computer industry after leaving school. After a period working in advertising, he migrated to Australia in 1977 and obtained employment in the hospitality industry and as a taxi driver. In 1981, he re-entered the computer industry as a sales representative selling personal computers and ancillary equipment. In the mid-1980s he began to market main frame computer equipment.

31. In 1987, he set up his own business as a computer broker, buying and selling computers and computer equipment in a partnership. After a dispute with his partner, he continued as a sole trader in the same industry from 1989.

32. Mr Gill married an American citizen in 1981 and moved to Los Angeles where he continued to work as a computer broker. Mr Gill and his wife returned to Sydney in 1992. For the next five years, Mr Gill’s wife was involved in litigation over some failed surgery. But when in 1997 she settled this litigation, receiving a substantial settlement, she separated from Mr Gill and returned to the USA with her compensation proceeds.

33. Mr Gill says, and the Court accepts, after his wife left him in 1997 to return to the USA he was left with no more than $15,000 in assets. He resumed his computer broking business and lived in rented accommodation. He lived a financially self-sufficient but modest lifestyle, making enough from his business to make ends meet but not much more. This was his situation when he met Dr Garrett in 1998.

Dr Garrett Meets Mr Gill – 1996

34. Jason Gill and Dr Garrett first met in 1996. There are suggestions on the evidence that they may not have met until 1998. But Dr Garrett’s own account in a letter he wrote to his solicitors when making his June 2008 will puts their first meeting in 1996. Jason Gill’s marriage was breaking down, when he and Dr Garrett met.

35. Dr Garrett was naturally gregarious and interested in people. He had many long-standing family friends with whom he could go to the opera, to musical recitals and with whom he could converse at the intellectual level he enjoyed. After his wife’s death, he developed a circle of friends in the Paddington area Mr Gill was part of this local scene.

36. Mr Gill invited Dr Garrett to join a team by the name of “dot.com” that competed in a trivia night competition on Tuesday evenings at the Royal Hotel at Five Ways in Paddington. It was not long before Dr Garrett and Jason Gill were meeting with a circle of friends for a drink most nights at the Royal Hotel. Jason Gill’s evidence is that Dr Garrett referred to these new friendships that he acquired at the Royal Hotel, as having “lifted his spirits”. The Court accepts that Dr Garrett was looking for more convivial company. Joining Mr Gill’s circle of friends at the Royal Hotel did buoy his spirits but at a price. It is quite evident that from the very first, Dr Garrett was generous in supporting social activities at the Royal Hotel, often buying drinks and dinner for Jason Gill and others.

37. But what started as a casual acquaintance with a common interest in visiting the Royal Hotel and competing in trivia nights developed into a relationship of greater mutual dependence. That this relationship ever developed is itself surprising. Dr Garrett and Jason Gill were very different people. Dr Garrett and his late wife had broad intellectual interests and a wide circle of friends consistent with their high achieving careers. Mr Gill was a man of little demonstrable ambition.

38. But Dr Garrett was plainly lonely after his wife’s death. His children were at the most demanding stages of their own busy and successful professional lives. But he was in need of day-to-day companionship beyond catching up with his and his late wife’s friends in this period. Mr Gill was quick to fill this gap in Dr Garrett’s life. But in the Court’s view, from Jason Gill’s side this was not the spontaneous flowering of a generous, mutually supportive and altruistic friendship. From the very first, Jason Gill accurately sized up Dr Garrett as a potential source of financial support. Mr Gill had obtained financial advantages from Dr Garrett soon after their friendship commenced.

39. The first clear documentary record of Dr Garrett loaning money, some $1,800, to Mr Gill is dated 15 December 1999. More and more loans followed over the next ten years, up until 17 December 2009. The loans were recorded informally on chits, pieces of paper, tallies, ledgers, ATM receipts, cheque butts and notes. Dr Garrett kept them in drawers and boxes in his bedroom.

40. One of the disputes in the case concerns the quantum of these loans. The defendants say that the balance of the loans recorded in the chits amounts to $166,015.80. This is disputed by Mr Gill: he asserts that the loans recorded in the chits totalled $146,306.80.

41. These loans would not have commenced without Mr Gill revealing to Dr Garrett his need for money. Mr Gill was a shrewd student of human personality. He read Dr Garrett very well. And Dr Garrett was not difficult to read: he was spontaneously generous, high minded and cared about the people around him. He was not driven by the acquisition of material wealth. Friendship was more important to him than money. Mr Gill understood all of this. So when Mr Gill revealed to Dr Garrett that he needed money, Dr Garrett responded by offering to lend it to Mr Gill.

42. But Dr Garrett was not someone who would give large sums of money away. He had been careful with money all through his life. Importantly, he did not make gifts of large sums to Mr Gill. All the sums of money Dr Garrett advanced to Jason Gill he characterised as loans.

43. It should be inferred from Dr Garrett keeping these receipts that the clear understanding between both men was that Mr Gill would repay the loans. Mr Gill is not a reliable witness and Dr Garrett is deceased. The Court has very little to go on to infer what exactly induced Dr Garrett to make these loans. But they started when Dr Garrett was in full possession of his faculties. And it can be inferred by the way they were recorded and from his June 2008 will that Dr Garrett made these advances in the expectation, presumably from what Mr Gill said to him, that Mr Gill would repay him.

44. But he did not. Jason Gill was unreliable in almost every part of his life. His failure over 10 years to repay more than a very small part of these substantial loans is one marker of that unreliability.

Jason Gill is Declared Bankrupt - April 2003

45. Mr Gill was declared bankrupt on 11 April 2003. The executors were unaware of the bankruptcy until close to their father’s death in 2015. A dispute emerged in the proceedings as to whether or not, Mr Gill was aware that he was bankrupt.

46. Dr Garrett was unaware Mr Gill was bankrupt. This is to be inferred from two matters. Nothing in Dr Garrett’s papers or the form of the loan records that he created with Mr Gill indicated that he was aware of Mr Gill’s bankruptcy. And Dr Garrett never told his children at any stage that Mr Gill was a bankrupt.

47. But Jason Gill said he was unaware of the bankruptcy. He denied having been served with process leading to the bankruptcy. Nothing happened in the administration of the bankruptcy until it was annulled in 2016. There is therefore some support for Jason Gill’s contention that he was unaware of it. The service of bankruptcy process upon him was said to have been at the Paddington property but it was so long ago that the Court is not prepared to infer that he was aware of it.

Dr Garrett’s Power of Attorney and Surgery – July/August 2003

48. By July 2003, Dr Garrett had been told that he would have to undergo surgery to his spine. So facing the uncertainty of surgery, on 25 July 2003, he took the precautionary measure of appointing his daughter, Jemima, as his attorney and as his enduring guardian. Dr Garrett underwent the surgery to his spine in August 2003. The surgery preceded a period of slow physical decline for Dr Garrett.

49. Dr Garrett’s appointment of Jemima Garrett as his attorney is important in analysis of the dynamics in this case. Dr Garrett’s appointment of his daughter Jemima was an expression of the primacy of his family in the conduct of his financial affairs. Dr Garrett never gave Mr Gill formal legal control over his affairs. Although he did entrust his credit cards to Mr Gill. It is to be inferred that Dr Garrett kept records of his loans to Jason Gill, no doubt for his own records but also so they might be available to his attorney should he ever become incapable of administering his own affairs.

50. But Jemima had very little to do to do as her father’s attorney until 2007/2008. He was competent and able to manage his financial affairs until then. And as Dr Garrett took pride in his independence she was reticent to interfere in her father’s private business, so she stayed on the sidelines.

Jason Gill Moves in to the Paddington Property - November 2003 to March 2004

51. There is a minor conflict in the evidence as to when Mr Gill moved into the Paddington property permanently. Jemima Garrett says that he moved in about 2000 or early 2001. But Jason Gill dates the move at 2003. The precise date is not material to the issues in these proceedings and the dispute does not need to be resolved. On this particular issue, Jason Gill’s chronology is more likely to be correct. He was in a better position to detail his own movements at this time than was Jemima Garrett. This is a rare example of Mr Gill’s evidence being preferred over Jemima Garrett’s.

52. In 2001, Mr Gill commenced renting an apartment in Glenmore Road, Paddington. When the apartment was sold he was required to vacate, so he was temporarily left without accommodation. At Dr Garrett’s invitation he moved into the Paddington property for a month, to tide him over whilst he looked for other accommodation. But eventually he moved back into his former premises which he rented from the new owners.

53. But Jason Gill was given notice to vacate again at the expiry of the lease in late 2003. It looked like he would soon be without accommodation. By then Dr Garrett and Mr Gill had been acquaintances for five years. Their companionship suited Dr Garrett. And it had worked well for Mr Gill financially: he had borrowed regularly from Dr Garrett, who had been very generous in entertaining and maintaining the lifestyle of his friend.

54. Jason Gill took up the offer and moved into Dr Garrett’s Paddington property in November 2003. In one sense it was logical because they were spending considerable time with one another almost every day, probably more so than with either of their families of friends. Mr Gill did not have an active business at this time from which he earned a regular income, so he had free time during the day. His way of life was already being funded by Dr Garrett. From his point of view, moving in with Dr Garrett made his future more financially secure, at least in the short to medium term.

55. In October 2003, independently of Jason Gill’s looming lease expiry, he and Dr Garrett were making plans to take a holiday together in January 2004 with a number of friends, cruising in the Whitsunday Islands. Mr Gill appeared to have nowhere to go after they returned from holiday. The Court accepts Mr Gill’s evidence that Dr Garrett made him an offer, “why don’t you stay with me after the Whitsunday Islands trip next year?” And that is what happened. At the conclusion of the trip to the Whitsunday Islands, Jason Gill moved back into the Paddington property.

56. From the first, Dr Garrett treated Mr Gill generously as a guest of the house, where he provided all food, alcohol, accommodation and facilities without charge. Mr Gill’s own income from his computer broking business was no more than $5,000 per annum in these years so he soon became dependent on Dr Garrett’s generosity. Mr Gill concedes that he and Dr Garrett never discussed Mr Gill paying rent or board at any stage that he resided in the Paddington property. No tenancy agreement was ever made between them. Indeed when the executors later sought to evict Jason Gill from the Paddington property by bringing the proceedings in the NSW Civil and Administrative Tribunal (“NCAT”) it found it had no jurisdiction because there was no tenancy agreement between Dr Garrett and Jason Gill. Importantly, there is no evidence of any accounting between Dr Garrett and Mr Gill about expenditure on food, alcohol and social outings. There was no formal financial offsetting of the value of the free accommodation Jason Gill received against any services that he provided, such as cooking and driving Dr Garrett.

57. One of the most intriguing puzzles in this case is how Jason Gill became a long-term occupant at the Paddington property. Even his own case suggests that Dr Garrett’s original invitation to him was only short term, “until after the Whitsunday Islands holiday next year”. It is to be inferred from that language that Dr Garrett had in mind that when the Whitsunday Islands holiday was over, Jason Gill would move into the Paddington property but he would later be expected to be looking for his own accommodation.

58. That is consistent with Jemima Garrett’s evidence. She says, and the Court accepts, that in her discussions with her father until about mid-2005 he conveyed to her his belief that Mr Gill would be moving out soon.

59. But that did not happen. In about March 2004, after Dr Garrett suffered a medical episode, Jason Gill says that Dr Garrett invited him to stay on and he accepted. But that was not a request for him to stay indefinitely. Dr Garrett still thought until about mid-2005 that Jason Gill would be leaving soon.

60. Mr Gill’s continuation at the property is to be explained by the very different personalities of Dr Garrett and Mr Gill and by Dr Garrett’s declining mental competence. The Court was able to observe Mr Gill’s personality closely. Mr Gill has very little sense of the separate interests of other people. His own comfort and security is what matters to him. It would never occur to Mr Gill that staying in the house of another person for a number of years might be perceived as an imposition. His own evidence betrays this. Absent from his account of this period is any spontaneous offer on his part to Dr Garrett that he should move out and find other accommodation and a refusal by Dr Garrett. Nor is there any evidence that he actively looked for any other accommodation. He was quite content where he was because it suited him.

61. The counterpart here was Dr Garrett’s personality. Jemima Garrett explains that her father, and indeed her mother, espoused and maintained a strong ethical framework for themselves and their family. Dr Garrett’s philosophy was one of financial independence, generosity, honour and keeping one’s word. With all of that Dr Garrett also had a gentlemanly “old school formality” and was always well groomed. Above all, whatever the situation his outlook was toujours politesse. Dr Garrett regarded talking about money as generally unseemly. But if someone he respected asked for help he would treat them honourably and respectfully. He would assume that they had good reason to request financial assistance and he would assist without intruding on the privacy of the petitioner.

62. But Dr Garrett’s assessment of Mr Gill was too generous. The first priority in Mr Gill’s life was to look after himself and to secure such advantages as he could from the people around him. The weakness in Dr Garrett’s outlook was that he did not comprehend that Mr Gill could be exploiting his relationship with him.

63. Cathy Garrett was an occasional visitor to Australia during her father’s last years, although she and Tom Garrett gathered to be there for the last few months of his life. But she was constantly in touch by email with Jemima and Tom Garrett. But distance can be an advantage. During her visits she made very perceptive observations about Jason Gill’s unusual personality. She made some early intuitive judgments about Jason Gill, with which, having seen him in the witness box for some days, the Court entirely agrees. She records them in her principal affidavit:

1. Sometime around the early to mid 2000s I began to realise that Jason had an ability to ingratiate himself. He would do things for you when you did not ask them to be done. It was my opinion from my observations that he liked to have people in his debt. I think he also liked to be appreciated and made great efforts to ensure that he was. Sometimes the things he did were kind, other times they were irrelevant. I constantly saw or heard of Jason doing these sorts of things for Dad and even for me when I was visiting. The behaviour sometimes made me suspicious and wary of his motives.

2. Jason, in my presence, would unctuously praise Dad and would sometimes intimate ‘tongue in cheek’ style that he was something like Dad’s ‘valet’. He made a big deal about Dad having been a gynaecologist and often called him “gyno-boy” including starting an email address for Dad with that name. I observed that Dad did not take to the phrase but graciously put up with frequent use of it. Dad seemed to focus more on Jason’s buoyant energy and social nature.

3. Overtime and from my observations I considered that Jason had a bragster quality to him, he liked to tell tales of him ‘playing the system’ conveying a bit of a ‘bad boy’ attitude. He did not want to limelight but liked to set things up to benefit himself. Jason has lived in Australia for decades but to my knowledge has never become a citizen. Around the time of the NSW State elections held in March 2015, I asked him about where he was going to vote and he, rather proudly, said words to the following effect, “I do not vote I’m not a citizen. I don’t like to be registered with the government” which lead me to believe that he sought to avoid having a public paper trail in Australia. He smiled and seemed pleased about that. From my observations, he lived completely under the radar.”

   64. Superficially Jason Gill came across in the witness box as an obliging person who simply had the best interests of his “best mate” Dr Garrett in mind. But throughout this judgment the Court draws inferences that he was of a more calculating bent. Very occasionally that side of him was revealed to others. The clearest example of this also comes from the evidence of Cathy Garrett. During a visit that she made to Australia in 2013, in a conversation after dinner, Jason Gill said to her late in the evening words to the effect, "I could manipulate anyone. Sometimes I try not to, but I can." This was not said in relation to any subject matter in particular. But was an indication by Jason Gill that he thought he had the skills to control the behaviour of others without their realising it. In the Court’s view such qualities are evident at times in his relationship with Dr Garrett.

   65. Jemima Garrett also observed that when she saw Jason Gill with her father in the Royal Hotel it was clear that Jason Gill used her father as something of a “mascot”. He “would often invite people to come and join the circle at the pub or elsewhere by telling them what a great man Dr Bill is…” And then Jason Gill would use “Dr Bill” to “ask for special treatment from service people or restaurants” but mainly for things that Jason Gill himself really wanted. Although Dr Garrett did enjoy “the sociable buzz that Jason created around him”.

   66. This special combination of personalities led to Jason Gill staying on. Jason Gill would have stayed at the Paddington property until he was asked to leave. He could survive there comfortably enough without trying to get a job. Staying was in his financial interest. But Dr Garrett was not the kind of person who would ask a friend to leave. He assumed an honourable person would leave without being asked, unless they had a real need to stay.

   67. In the Court’s view, this peculiar combination of personalities substantially but not wholly explains why Mr Gill continued to stay in the Paddington property in the first few years despite Dr Garrett’s belief that he would be moving out. The other factor which explains why Dr Garrett continued to accommodate Mr Gill at the Paddington property is the slow early weakening of Dr Garrett’s mental competence. This was evident to other family members by 2006. It takes significant mental resources to ask someone to move out of a property and Dr Garrett’s mental resources were weakened by 2006.

Dr Garrett’s Physical Health – 2004 to 2005

68. Jason Gill’s move into the Paddington property coincided with a number of episodes that indicated Dr Garrett was beginning to suffer from physical infirmities. Although at this early stage his cognition appeared to be largely unaffected.

69. In December 2003, Jemima Garrett recalls her father suffering from a series of dizzy spells, when she was with him. These caused him almost to collapse.

70. Not long afterwards, Dr Garrett became unwell when swimming on the planned Whitsunday Islands holiday in early January 2004. He consulted a local doctor and returned to Sydney a few days later to see a cardiologist. Later in January 2004, Dr Garrett was found lying unconscious on the kitchen floor of the Paddington property. Jason Gill was not home at the time. After this episode, Jemima Garrett took her father to the neurologist who referred him immediately to a cardiologist. It was recommended he have a heart operation a few weeks later, which he did. The operation to implant a pacemaker took place in late January to early February 2004. After Dr Garrett was discharged from hospital, Mr Gill undertook more of the cooking for him and Dr Garrett.

71. Dr Garrett’s post-operative weakness became the occasion in March 2004 for the following conversation to take place between Mr Gill and Dr Garrett, according to Mr Gill:

“Dr Garrett:   Jason, there is no hurry for you to move out. Do not take the first available place. Wait until you find the place you like.

Mr Gill:      Thanks Bill, I appreciate that.”

72. This conversation is likely to have taken place. It is consistent with Dr Garrett’s belief that Mr Gill’s sojourn at the Paddington property would only be temporary. In its terms the invitation was: for Mr Gill just to wait “until you find the place you like”.

73. But Dr Garrett’s heart condition had slowed him down, so Mr Gill stayed on longer. Later in 2004, Mr Gill says that Dr Garrett again broached the subject of him staying on, resulting in the following conversation between them:

“Dr Garrett:   Jason, I enjoy having you around and appreciate you helping me with the daily chores, it gives my family peace of mind to know you are here. If you want to stay, I am happy for you to do so.

Mr Gill:      It suits me too. If you are happy, I will do so”.

74. The Court does not accept this conversation took place. It is not consistent with the understanding Dr Garrett conveyed to Jemima Garrett that Jason Gill would be moving out. It is unlikely that he would have issued an open-ended invitation for Mr Gill to stay at the Paddington property indefinitely. The better explanation for Mr Gill staying at the Paddington property is the passing of time and the combined dynamic of Dr Garrett’s and Mr Gill’s personalities and Dr Garrett’s mental decline that the Court has identified earlier in these reasons.

75. In mid-2005, Dr Garrett met up with Jemima Garrett in London. Dr Garrett was undertaking a trip to Germany and the UK for social reasons and to attend a conference. During this trip, Jemima observed him having difficulty with organisational and administrative matters and that he was drinking heavily. Throughout his life, and until about this time, Dr Garrett was someone who enjoyed his food and wine but did not drink to excess. But Dr Garrett’s fellow householder, Mr Gill, drank daily at the Royal Hotel from early each evening and he encouraged Dr Garrett to accompany him, not least because Dr Garrett was likely to fund their outings together.

76. In what became a regular pattern, by 2005 Dr Garrett would finish at the Royal Hotel and go home and Mr Gill would continue, going out to clubs and bars often until the early hours of the morning. The Court accepts Jemima Garrett’s evidence that Mr Gill often said to her that he had been out until the early hours of the morning. Indeed, as will be seen, evidence of his financial transactions confirms this is exactly what happened. And when family members, including Jemima Garrett, saw him late at night at the Paddington property through this period he was often smelling of alcohol and sometimes slurring his words.

77. Dr Garrett was continuing to have neck problems. In October 2005, Dr Garrett underwent a second laminectomy and was hospitalised for a period of ten days, as a result. Tom Garrett and Cathy Garrett arrived from interstate and overseas respectively to be with him and they visited him in hospital every day. During this time, Mr Gill also visited Dr Garrett in hospital. The Court accepts Jemima Garrett’s evidence that Mr Gill brought wine with him to the hospital for Dr Garrett to consume.

Dr Garrett’s Health – 2006 to 2008

78. In 2006 and 2007, Dr Garrett’s physical decline continued. Jemima Garrett observed this decline in her father, describing him as “becoming less steady on his feet”, wearing a neck brace, using a walking stick and continuing to drink heavily with Mr Gill. The increase in her father’s drinking worried Jemima Garrett. When she dropped into the Royal Hotel from time to time to find her father, she could see that both her father and Mr Gill were re-ordering drinks frequently. Moreover, mostly instigated by Mr Gill, they were by then having people from the Royal Hotel back to the property for a further drinks session.

79. Mr Gill claims that, as Dr Garrett’s health declined, he assisted more with daily tasks. Mr Gill contends that his role developed from companion into carer. Mr Gill says that this was in “the full knowledge” of Dr Garrett’s family. It was, but none of them were comfortable about the relationship of dependence that was developing. But they did not intervene. They all respected their father’s independence. And at this time he appeared to welcome Mr Gill’s involvement in his life.

80. But what they did not fully appreciate is that by 2006 the easy alcohol-based daily companionship Mr Gill was providing had started to create a relationship in which Dr Garrett was highly dependent on Mr Gill. This dependent relationship started to displace some of the stimulation of other friendships and relationships in Dr Garrett’s life.

81. None of Dr Garrett’s children were in a position to move in with their father and displace Mr Gill at this time. Tom Garrett was in Melbourne. Cathy Garrett was in California. Jemima Garrett was going through a particularly challenging time with medical issues in her family. The result was that in these years Dr Garrett became more and more dependent not only on Jason Gill’s assistance, but his daily companionship. The quality of that assistance was questionable.

82. Throughout this period, Dr Garrett had a number of falls leading to admissions to St Vincent’s Hospital. On 26 February 2007, Dr Garrett fell on the way home from the Royal Hotel, breaking his elbow. On 15 March 2007, Dr Garrett slipped at the Paddington property, breaking his ribs and resulting in his admission to St Vincent’s Hospital. And on 26 June 2007, he had another fall, and was again admitted to St Vincent’s Hospital.

83. To look ahead from 2007 for a moment, the evidence of falls and instability related to alcohol on several occasions between early 2007 and early 2010 is strong. The frequency of falls and the damage they were doing to Dr Garrett suggests his capacities were declining by this time but his drinking was playing its part as well. Most of the admissions were to the emergency department at St Vincent’s Hospital. He was admitted on 26 February 2007 with a fractured elbow and again on 16 March 2007 with fractured ribs at which time the hospital notes indicate he was encouraged to reduce his alcohol consumption. On 26 June 2007, he sustained a head injury from a fall whilst intoxicated although he was sent home from the emergency department.

84. On 18 March 2008, Dr Garrett attended upon Dr Hardy complaining of chronic tiredness “everyday”. In July 2008, he was admitted to hospital overnight with central chest pain but his consumption of ten standard drinks per day was noted. On 1 May 2009 he re-attended the emergency department following a further fall whilst walking, with a possible explanation of taking a double dose of sleeping tablets. St Vincent’s Hospital progress notes show that Dr Garrett suffered a further fall six months later on 6 November 2009. On 11 January 2010 he represented to the emergency department following a further fall whilst intoxicated.

85. Jason Gill tended to discount the seriousness of Dr Garrett’s alcohol consumption. But this short history shows that although not implicated in every one of his falls, his consumption of alcohol was a risk factor that contributed to enough of them to be regarded as a serious health hazard, apart from its direct effect on his cognition and other bodily functions. To this criticism Mr Gill countered rather blithely that Dr Garrett was “someone who ‘liked a drink’”.

86. Mr Gill did nothing to curtail his and Dr Garrett’s drinking episodes. He enjoyed them immensely and was happy for them to continue. This case is remarkable in that it was not until a serious episode in 2011 that there is any credible evidence from Mr Gill that he was attempting to constrain Dr Garrett’s alcohol consumption and even that was after strong intervention by the family. Mr Gill was happy for Dr Garrett to drink and keep drinking both at the Royal Hotel and at home, so that Mr Gill could join him in doing the same. Mr Gill was providing basic domestic services to Dr Garrett but his encouraging of Dr Garrett’s drinking was harmful. Dr Garrett’s family were slowly becoming conscious that his companionship with Mr Gill was endangering their father’s health.

The Sydney Morning Herald Article – July 2006

87. Mr Gill was ever-conscious of his need for financial security. The subject was of considerable interest to him. This was revealed in an incident in July 2006. On 9 July 2006, Jemima Garrett attended the Paddington property to take Dr Garrett out to lunch. She says that a Sydney Morning Herald newspaper was left on the kitchen table, folded open at an article entitled “Not in the will but the boarder in the spare room wins $450,000”. Jemima Garrett says that Mr Gill saw that she had noticed the article and he commented facetiously to her that the article was “interesting”. This interaction worried her. A few weeks later she showed the article to her father and she sent a copy to her siblings.

88. This article referred to a decision of this Court, in the family provision proceedings, Ye v Fung (No 3) [2006] NSWSC 635, in which Gzell J awarded a boarder, who had no familial or romantic relationship to the deceased, $425,000 and ordered the forgiveness of debt he owed the deceased in the amount of $22,000.

89. Jemima Garrett thought that Jason Gill had left the article deliberately out for her to see. He disputes that contention. The better analysis is that the article was left on the table by accident and Jemima Garrett happened to see it.

90. Jemima subsequently showed the article to her father and her siblings. This precipitated a conversation with her father:

“Dr Garrett:   I had a look at the “Herald” article you gave me. It looks as if it has implications for my Will.

Jemima Garrett:   I suggest we make an appointment with Lane & Lane so you can get some advice. How about we do this before Christmas?

Dr Garrett:   I haven’t decided how to recognise Jason in my Will or if I need to do this, but I am keen to get this sorted out as he owes me a substantial sum of money. I am documenting the loans so I can keep track of how much they have got to. Jason said he will pay back some of the money in February [2007] when he receives the proceeds from a block of land that he is selling in Auckland. I’m particularly concerned that I may have expenses in the future if I were to become a quadriplegic because of my neck issues.

Jemima Garrett:   Maybe you need to come up with a formula, something like you leave $100,000 to Jason but if, in the meantime you have substantial medical expenses, that figure could be reduced by the formula to recognise that.

Dr Garrett:   $100,000 is too much, much more than I have been considering, especially as I have been providing Jason with food and board as well as lending him money”.

91. This was the first time that Jemima Garrett had heard that her father had been making loans to Jason Gill on top of providing him with free accommodation and sustenance. She thought this was very out of character for her father. And it was: he had started life with little, had lived through the depression and had a frugal financial outlook, as had his late wife, Nancy. She was quite shocked at this news. At her urging, he and she resolved together to go and see Dr Garrett’s solicitors, Lane & Lane, to discuss the implications of the case that had been reported in the Sydney Morning Herald.

92. Conversations like this also confirm what the Court has found based on the oral evidence: that Dr Garrett was substantially funding Mr Gill’s lifestyle, his food, and his accommodation, topped up with financial advances from time to time.

Help for Dr Garrett’s Financial Affairs – 2007 to Early 2008

93. From the beginning of 2007, Dr Garrett began to shed responsibility for managing the family’s and his own financial affairs. This was done step-by-step and it was well underway by the end of 2007.

94. Although she lived in California, Cathy Garrett kept closely in touch with her family in Australia. But by the first half of 2007 she noticed that Dr Garrett was becoming irregular with reporting on the quarterly rent payments the family received from the West Yorkshire property. Previously he had been meticulous about following up changes of address, bank details or querying any discrepancy in the rent payments. Perceiving in April 2007 that Dr Garrett was slowing down, when he failed to follow up a double payment of rent, Cathy Garrett offered to him to take over management of the West Yorkshire property. With Dr Garrett’s consent, she became the point of contact with the solicitors, the bank, the commercial property manager and the accountant for the West Yorkshire property.

95. In the second half of 2007, Dr Garrett asked Jemima Garrett to take over the preparation of his tax returns for the last two financial years. That Dr Garrett even made this request was significant. He was proud of his independence. But he needed help. Jemima observed that he was no longer up to the details of collating and sorting through the paperwork necessary to do his tax returns. She attended the Paddington property to complete her father’s paperwork every Friday, her day off from the ABC.

96. Jemima Garrett had been alerted in July 2006 to Dr Garrett’s loans to Mr Gill. But it was only during the preparation of these tax returns that she became fully aware, to her further surprise, of the extent of these loans. She discovered that her father had kept records of the loans on odd pieces of paper, which he kept in drawers and boxes in his bedroom. As she was gathering up the chits recording these loans, her father said to her:

“Those [referring to various small pieces of paper with records of dates and figures on them] are the records of my loans to Jason. They are mounting up and I am getting bit concerned about it. But Jason has told me he will pay back a substantial sum soon when he has sold that block of land of his in Auckland, so I am not too worried.”

97. Jemima Garrett estimated from these materials that she collected that Dr Garrett’s loans to Mr Gill were likely to add up to a large sum. Her father expressed embarrassment to her about these loans. One day when she was working at the Paddington property a short conversation about repaying the loans took place between herself, Dr Garrett and Mr Gill as follows:

“Jemima Garrett:   I’m collecting the papers documenting your loans from Dad.

Dr Garrett [to Mr Gill]:   You said your block of land in Auckland will be sold soon and then you’ll pay me back.

Mr Gill:            Yes but it has not gone on the market yet.”

98. Dr Garrett had been asking Mr Gill, apparently without success, for some time for the loans to be repaid. But this response is typical of Mr Gill, putting off anything which was difficult. But Mr Gill had not taken steps to sell the property in Auckland and never repaid all but a fraction of these loans.

99. Later in 2007, whilst continuing to work on Dr Garrett’s finances, Jemima Garrett discovered a substantial recurring liability for goods storage of approximately $500 per month being paid from Dr Garrett’s credit card as a direct debit. Jemima asked her father what he wanted done and her father clearly instructed her, “I want Jason to clear the storage facility”.

100. Shortly afterwards, in a three way conversation between Dr Garrett, Mr Gill and Jemima the subject of the storage charges was broached:

“Jemima Garrett:   Dad and I were just looking at your storage. Dad didn’t know the cost of this was on his credit card. Dad would like you to move it.

Dr Garrett:      Yes I would like you to move it.

Mr Gill:         Yes, ok.”

101. This conversation shows Dr Garrett’s mental capability was diminished by this time. He was not able to work out for himself that Jason Gill’s storage charges were accruing on his credit card. He needed Jemima Garrett’s help to discover this.

102. But Mr Gill did not move his stored goods and the charges continued to accumulate for some years after this. Jemima Garrett did not seem to realise at the time just for how long these storage charges had been incurred. It is not in issue in these proceedings on the presently available evidence that Jason Gill had been incurring storage charges for the storage of his goods from 12 February 2004, shortly after he moved into the Paddington property. The storage fees were paid from Dr Garrett’s accounts or credit facilities to two organisations, Rent a Space and or Montroy Pty Ltd. These charges continued to be incurred until 23 February 2015, when Jemima Garrett was finally able to force Jason Gill to move his goods (mostly into the Paddington property) and eliminate this expense for Dr Garrett. These payments were considered a loan. The total amount paid by Dr Garrett for storage and associated costs was $69,349.64.

103. Remarkable as it may seem, despite Jemima Garrett’s conversation with him in late 2007, Jason Gill was not ready to apply himself to arrange to relocate these goods to save Dr Garrett approximately $500 per month. Over the years Jason Gill was met with chorus of requests from all directions to move his goods out of storage and save Dr Garrett the burden of these storage charges. Dr Garrett asked that his items be removed. Jemima Garrett asked for the items to be removed. Tom Garrett continually requested removal of these items to eliminate the storage charges. But none of this moved Jason Gill to move his chattels and personal effects out of storage.

104. His years of inertia on this subject are a signpost towards his personality. He was prepared to ignore the continuing financial burden being suffered by Dr Garrett, so he could avoid the relatively minor inconvenience of taking a few days to relocate his goods. If this was Jason Gill’s attitude to conserving Dr Garrett’s money, conserving Dr Garrett’s health was hardly likely to have been a very high priority when competing with Jason Gill’s convenience. And that too is the pattern which the evidence demonstrates.

Dr Garrett Makes a Will – May/June 2008

105. Dr Garrett enjoyed seeing his children. On 3 May 2008, he travelled to the USA to visit his daughter, Cathy in California. In one respect it was a working holiday. He took with him the chits and other paperwork that he and Jemima had collected, recording Dr Garrett’s loans to Jason Gill, to try to make sense of them.

106. During this trip, Cathy helped Dr Garrett prepare a summary table of the loans made to Mr Gill in the calendar years between 2002 and 2008. The pattern that emerges from these loans tells its own story. Broken down by year, the loans advanced were in the following amounts in the following years: 2002 – $4,149, 2003 – $2,755, 2004 – $22,138, 2005 – $29,674, 2006 – $22,911, 2007 – $17,084 and 2008 – $4,455. The total for all years was $103,166, less Mr Gill’s repayments of $5,135, leaving a balance owing of $98,031.

105. These loans escalated rapidly until 2005. They declined slightly in 2006 and fell away rapidly in 2007 and 2008. The Court infers that the rapid turnaround of the loan trajectory was attributable to Jemima Garrett’s closer supervision of Dr Garrett’s financial affairs. But the pattern of loans in 2004, 2005 and 2006 before Jemima Garrett started reining them in, shows Dr Garrett lending each month, and month after month, amounts of between $1,500 and $2,500 with no evidence of repayment after October 2005. These records are accurate. They show that Mr Gill’s attempts at repayment were sporadic and perfunctory. Mr Gill twice in 2002 wrote out cheques to Dr Garrett to repay him, but at the same time asked him not to bank them. This lending pattern is a firm indication of an uncontrolled and one-sided financial relationship that was not in Dr Garrett’s interests. It is an indicator in itself that by no later than 2005, the peak of the loans, he was already in a relationship of disadvantage with Jason Gill.

106. The other notable feature of the loan trajectory is that the overall quantum of the loans was low until 2004, the year that Mr Gill moved into the Paddington property. The Court infers that Mr Gill’s daily access to Dr Garrett in the Paddington property household gave him far greater opportunities than before to ask for loans that Dr Garrett seemed unable to resist making.

107. Whilst in California, Dr Garrett composed a letter to his solicitors, Lane & Lane in Sydney, outlining his relationship with Jason Gill and his testamentary intentions in general terms. Dr Garrett wrote:

“The outstanding question on which I seek your counsel involves the amount I will leave to Jason Gill, who as you know is a friend who lives with me in my house. I have heard colloquially that there may be some issue as to the nature of his and my relationship and that upon my death he may have some legal claim to my estate. I have attached a short narrative which explains how Jason and I met and the circumstances under which he began living in my home, which began informally when I invited him to stay with me when he lost the flat he was living in at the time. While we both thought the arrangement would be temporary and have never formalized any agreements as to his tenancy or our living arrangements, we have come to a mutually agreed, informal understanding that he could continue living in my home rent free. While Jason has lived with me, he has helped with a number of things around the house, including cooking most meals and driving me as needed. In turn, since 2000 he has consistently borrowed money from me, of which I have kept a running tally, which I attach to this letter. Jason has always said he intends to pay back these loans, and on occasion has paid back small amounts, which are noted on the tally.

Therefore, I would like your advi[c]e on all rights and obligations that I have with respect to this relationship before I determine what, if anything, I will leave him in addition to the outstanding balance of his loans”.

110. Here in mid-2008 is direct evidence from Dr Garrett that their “mutually agreed understanding” was that “he could continue living in my home rent free”. There is no indication there that there was any more to their “temporary arrangement”

111. This letter included a summary of Dr Garrett’s testamentary intentions, well organised into a spreadsheet entitled “Intent of Will”. It stipulated that the Paddington property would be left to Jemima, Tom and Cathy Garrett in equal shares, as would the MacMasters Beach property and the Paddington investment property. Dr Garrett also indicated in this document that he intended to leave his car and a painting by Jonathon Conlon entitled “In the Studio” to Jason Gill. And with respect to Jason Gill he also noted “1. Forgive loans. 2. Cash amount___?”, probably indicating that he was looking to receive advice from Lane & Lane on whether he should forgive the existing loans to Jason Gill and what the proper cash amount of a legacy for Jason Gill should be.

112. Dr Garrett made a will on 20 June 2008 that reflected these instructions. In it he gave bequests to his grandchildren and step-grandchildren (clause 3). In clause 4 he made a bequest of $200,000 to Mr Gill. He made a number of specific gifts which included the John Conlon painting “In the Studio” to Jason Gill. Then he gave the rest and residue of his estate equally to his three children, Jemima, Cathy and Thomas.

113. He explained his reasoning for his bequest to Jason Gill in clause 8 of the will:

“IN MAKING the bequest referred to in clause 4, I have given careful consideration and had due regard to the contribution made by the Devisee by way of assistance he has provided to me whilst residing at my home in the nature of cooking meals, general household tasks, driving me to appointments and the like and his general companionship. The bequest which I have made to him in my view fairly and reasonably reflects the value of the contribution that I believe he has made. From September 2002, I have from time to time advanced monies to the Devisee by way of loan and have maintained a record of advances so made and also all amounts which have been repaid. At the time of making this my Will the balance of the outstanding loan monies amounts to approximately Ninety eight thousand dollars ($98,000). It is my expectation and requirement that the balance of the outstanding loan, if any, at my death will be repaid to my Estate at that time.”

114. The “short narrative” that Dr Garrett said in his letter to Lane & Lane that he attached, was a statement in his own handwriting headed “Confidential – Jason Gill”. This was later left with his will. The statement together with the will is also direct evidence from Dr Garrett about his relationship with Mr Gill. The short narrative recounts some of Mr Gill’s background and personal misfortune that led to him renting a flat in Glenmore Road, Paddington near Five Ways. Then it goes into Dr Garrett’s relationship and financial interdependence with Mr Gill:

“He came to stay with me at [the Paddington property] about 2002 and has remained with me since then. We are part of about 8 – 10 friends who drink regularly at the Royal Hotel, Five Ways, Paddington. I have not charged him rent and I buy virtually all the food and most of the wine at home. He has come to cook virtually all the meals. He is a very kind man and cooks about 2 or 3 meals a week for a disabled mutual friend, 48 years old who until recently has been bed-ridden with arthritis since his teens.

Jason’s occupation has been as a computer broker and has in the past has been very profitable but for about 6 years it has been collapsing, overtaken by new technology and he has come to borrowing from me. He now owes me $52,000. Against this he has paid me $6,249 to date and drives my car as chauffeur when I go to see my general medical practitioner or similar errand.

His furniture storage fees were put on my Visa card and this has continued over the years. I have recently drawn his attention to this.”

115. The statement is a useful insight into Dr Garrett’s then views about Mr Gill. There is no mention in the statement of any promise to Mr Gill that he could have the Paddington property. Quite the contrary, the statement is reasonably formal, honourably demonstrating gracious friendship towards Mr Gill but it does not give any intimation of a profound depth of obligation to him beyond the somewhat transactional calculation that ultimately appeared in the 20 June 2008 will.

116. The Court is confident Dr Garrett was of sound mind when he made the will in 2008. This is not a probate suit and his capacity to make the will has not been put in issue. But his solicitor at Lane & Lane, Mr Anthony Roberts says on affidavit that he had ”absolutely no concerns” that Dr Garrett was “anything other than capable and of sound mind to make the will”, and the Court accepts that.

117. Mr Anthony Roberts recalls Dr Garrett as being “assiduous and diligent in the conduct of his legal affairs. Mr Roberts is sure that to the best of his knowledge no one at Lane & Lane was approached or instructed by Dr Garrett to give legal form to the promise alleged by Jason Gill. The handwritten note of Dr Garrett which is headed “Confidential - Jason Gill” was not on Mr Robert’s file at Lane & Lane. Mr Roberts does recall that he requested Dr Garrett to write a note regarding his relationship with Mr Gill to provide evidence of the consideration given in making the will. The handwritten note was kept in Lane & Lane’s safe custody room with the original will, following its execution.

118. The structure of Dr Garrett’s testamentary intentions in June 2008, as expressed to his solicitors, and as perfected into his will, contains no suggestion that the Paddington property would be given to Jason Gill. Yet Jason Gill’s case in these proceedings is that by February 2009, about eight months later, Dr Garrett made an agreement with him to give him the Paddington property in exchange for Jason caring for him the rest of his life. For Jason Gill’s case to fit into a narrative capable of ready acceptance, some explanation for Dr Garrett’s change of heart in that eight month period is required. But it is not obvious that there is one. All that happened in that eight month period is that Dr Garrett’s physical and mental health declined.

Dr Garrett’s Stroke – Late 2008 to Early 2009

119. On 17 November 2008, Dr Garrett suffered a Transient Ischemic Attack (“TIA”). As a result he developed expressive dysphasia (difficulty in speech) and was admitted to the Stroke Unit at St Vincent’s Hospital. At the time of this TIA he was expected to make a full recovery. Through rehabilitation and medical care he did track well after this event but his speech never fully returned to its previous level.

120. This TIA occurred in a period when Dr Garrett was continuing to drink heavily with Jason Gill. The St Vincent’s Hospital progress notes record Dr Garrett’s alcohol intake as more than five standard drinks per day. Jemima Garrett observed, and the Court accepts, that there were often empty wine and whisky bottles around the house and in the recycling bin, when she visited at this time. This represented a continuing pattern. Both Dr Garrett and Mr Gill were continuing to go to the Royal Hotel each day and to drink at home afterwards, often with friends from the Royal Hotel. This was convenient to Jason Gill and Dr Garrett paid for these outings. But the amount of alcohol being consumed was not good for a man of 80 like Dr Garrett.

121. The Court accepts Jemima Garrett’s contemporaneous observation that this TIA had disabled her father further. For example, from this time on she needed to shop with her father to buy his clothes and to buy the birthday and Christmas presents he wanted to give others. He could no longer undertake such expeditions alone. By late 2010, she was doing all such shopping without her father, as it confused and exhausted him too much. Mr Gill did not accompany Dr Garrett on any of these shopping trips with Jemima. In one of the informal functional boundaries that developed around care for Dr Garrett, Jason Gill generally left this kind of supportive activity for Dr Garrett to his family.

122. Dr Garrett's family were heavily pre-occupied with his immediate post stroke recovery after November 2008. Mr Gill was an important element of stability in the overall support for Dr Garrett during this recovery phase. The family members each had their doubts about the quality of Mr Gill’s care but these doubts were temporarily put to one side whilst Dr Garrett was supported back to better health. Removal of Mr Gill would have upset their father, and thrust difficult adjustments upon him at a sensitive time. But doing nothing meant the continuation of Mr Gill’s less than satisfactory care.

123. Mr Gill’s case is that the Garrett family leaving him undisturbed at the house is a basis to infer that they regarded his care for Dr Garrett as satisfactory. That is not the correct inference. The accurate inference is that of the alternatives presented to them, the continuation of Mr Gill’s less than satisfactory care was accepted, because the immediate distress and uncertainty consequent upon removing Mr Gill was more unpalatable.

124. The Garretts’ beach house at MacMasters Beach was an important centre of family activity and family reunions. Dr Garrett spent Christmas 2008 there with extended family. By Christmas 2008, his mental state was declining and his standards of attire and personal appearance had deteriorated. This was evident to Jemima Garrett and to Tom Garrett. Moreover, it is demonstrable from photographs taken at a New Year’s Eve party to which Dr Garrett was taken that year. These photographs show a somewhat lost figure, far removed from the careful scientist he had been, and far removed from the man who had once taken great pride in his appearance. Jemima Garrett described Dr Garrett at this time as, “often staring off into space, which was very unusual” and not interacting with people.

125. The party on New Year’s Eve in 2008 is important at another level. Little more than two months after this evening, Mr Gill alleges Dr Garrett promised the Paddington property to him. Jemima’s account of her father’s conduct that New Year’s Eve night is a cameo of his decline and his weaknesses by that point. On New Year’s Eve 2008, Jemima Garrett was picking her father up from one party to take him to another party with her work colleagues. He was aware where he was going. But she observed that her father had dressed himself in an Hawaiian shirt and some old polyester shorts, the kind that he had used for odd jobs around the house. The photographs confirm her evidence. She confessed she could not say “Dad, go home and change your clothes. You’re not up to scratch”, because as she observed, equally disturbingly, “he was quite happy in that dress”. A fully competent Dr Garrett would never have dressed like this.

126. By early 2009, Dr Garrett had lost the capacity to manage the MacMasters Beach property. So Jemima Garrett began to manage it entirely herself, paying some of the outgoings on the property from her own resources and collecting contributions from family and friends who used the house, whilst she and her husband also contributed their own labour as maintenance.

127. Jemima Garrett’s preparation of Dr Garrett’s 2006 to 2008 tax returns continued into early 2009. But by that time, the dynamic of Jemima’s involvement had changed. She no longer had to explain everything to him and submit to his directions, as she sorted out and filed papers and opened the correspondence that she discovered in wine boxes and drawers at the Paddington property. By late 2008, she was preparing all his cheques for signature and paying his bills using his credit card herself. Now, unlike before, without putting up active opposition, he ceded control of all his tax affairs to his daughter. This is something which would have been unthinkable to him 12 to 18 months before. The Court accepts Jemima Garrett’s assessment that by early 2009 Dr Garrett was taking a minimal interest in the preparation of his tax returns.

128. Jason Gill’s case criticises Jemima Garrett’s execution of the task of lodging the FY2006 to FY2008 tax returns. His case is that the delay in filing the returns from mid-2007 was not to be attributed to Dr Garrett’s mental state, because Jemima Garrett had taken over the task. But that is too simplistic an analysis. Dr Garrett’s poor mental state still meant that Jemima Garrett could not seek clear answers from him about his financial affairs. In the end she had to go to Mr Wayne Tilley, his accountant, and Mr Simon Icely, his financial adviser for assistance. Moreover, it is difficult to understand the relevance of this criticism. But it is wrong. Jemima Garrett describes a lengthy process of putting order into the chaos of her father’s financial papers, whilst juggling the priorities of her own family. In the Court’s view, no criticism of her is warranted on the grounds of delay in completion of her father’s tax returns.

129. In the first quarter of 2009, Jemima Garrett started to use her power of attorney to take over the operation of any of her father’s accounts, including utility bills and the like. Dr Garrett’s memory of his own financial affairs was not good enough for Jemima Garrett to rely upon, so by April 2009 she turned directly Mr Tilley to guide her more about her father’s affairs. And she also started to liaise with Dr Garrett’s lawyers, Lane & Lane about his outstanding tax obligations. The Court accepts Mr Tilley’s evidence, who describes Dr Garrett at a meeting with him on 17 April 2009 as being, “clearly not on top of things…. Whilst formerly sharp, this was not now the case, but we talked and had a reasonable conversation. He had in my view not lost it but clearly, he was relying on and needing Jemima’s assistance.” But by 2009 he was a far cry from the Dr Garrett that Mr Tilley remembers as his highly organised client of many years past: “My interactions with Bill confirmed him to be a man of great intellect, humble, astute, sharp and engaged in all aspects of his life.” In March 2009, Jemima Garrett also became a signatory to Dr Garrett’s Westpac Bank accounts.

130. These assessments show that by the first quarter of 2009, Dr Garrett had lost the motivation to be involved in his own financial affairs, partly because he had lost the capacity to absorb and master their detail. In the Court’s view, by the first quarter of 2009 he no longer had a sound and realistic appreciation of his own financial affairs.

131. By mid-2009, Dr Garrett’s tax returns for the FY2006, FY2007 and FY2008 had been lodged and he was facing an outstanding tax bill of over $100,000. This tax liability had been incurred as capital gains tax that should have been paid in 2006 on the sale of the investment property in Paddington plus an associated bill for penalty interest. At Jemima Garrett’s request, Dr Garrett’s general practitioner, Dr Andrew Hardy, provided a medical certificate which was then forwarded to the Deputy Commissioner for Taxation. It provides a contemporaneous account of Dr Garrett’s mental state at this time. Under Dr Hardy’s signature it said:

“23/07/2009

Deputy Commissioner for Taxation

Sydney

Dear Commissioner

Re: Dr William Garrett

[address and D.O.B omitted]

Dr William Garrett, age 81 yrs, has been a patient of this Practice since 1996.

His general health began to deteriorate in 2004, when he required a Pacemaker, and has subsequently been affected by multiple ailments culminating in a stroke in 2008.

His mental as well as physical abilities, formerly acute, have deteriorated though he has not been fully aware of this.

I hope that it may be possible to take this into account when assessing his liabilities to your Department.

Full details can be supplied, with his permission, should you require them.

Yours faithfully”

132. Dr Hardy gave evidence and supported his observations made here that Dr Garrett did not have full insight into his own mental deterioration. The Court accepts that this was the position. Dr Hardy’s evidence is examined in more detail below.

133. In 2009, Dr Garrett had occasional periods of greater capacity to superintend his affairs. But he also had growing periods of confusion. During this time he was progressively less and less able to draw upon his memory of his own financial affairs, marshal facts and documents and make judgments with insight about the present, the future and about what was in his best financial interests. Because he trusted her, the growth of Jemima Garrett’s role in the more formal areas of Dr Garrett’s financial affairs compensated in those areas for the decline in his overall executive functions. But Jemima Garrett could not be there all the time to oversee his day-to-day transactions with Jason Gill.

134. Dr Garrett also trusted Jason Gill. But Jason Gill failed to recognise the difference between his and Dr Garrett’s financial and welfare interests. He could not be relied upon to draw financial boundaries to protect Dr Garrett, who in turn was unable to resist suggestions made to him by Jason Gill. The uncontrolled loans he made to Jason Gill demonstrate this. Jason Gill was ever-attracted to seizing easy financial opportunities that came his way. This was particularly evident through his use of Dr Garrett’s credit cards which will be discussed later in these reasons. He viewed these opportunities as his to grasp when he could and any associated obligations would be left to look after themselves.

…

1. In Vigolo v Bostin [2005] 221 CLR 191, at 228, Callinan and Heydon JJ said:

   "[T]he use of the word "proper" ... implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."”

   487. If the Court were to decide what, if anything, is appropriate provision from the estate for Jason Gill in this case, it would first have to consider the size of Dr Garrett’s estate and Jason Gill’s financial position.

   488. The gross distributable estate after deducting unpaid debt, expenses and liabilities, including legal costs, in March 2019, just before trial, was $4,571,300.91.

   489. Mr Gill’s financial position is poor. He said in his first affidavit sworn in these proceedings in April 2017 that his total assets at that time were approximately $28,000, which was the balance of the inheritance due to him from his father’s estate, which was then being administered, together with his clothing and personal effects.

   490. Jason Gill’s mother died in New Zealand in October 2018. He was entitled to a one-third share of the residue of her estate. After the repayment of a loan made to him by his mother, he received a total of $163,600.58 (NZD) from her estate. After repayment of other debts at the commencement of the hearing in March 2019, his then current liquid assets were about $92,500 (AUD). This consisted of about $88,000 (NZD) held in his ANZ bank account, which, at the time he swore the affidavit, equated to about $84,541.39 (AUD). And he has a further amount of approximately $8,000 in his St George Account. He says that the funds in those accounts are his sole liquid assets. Although he is owed approximately $4,000 that he loaned to friends over the last two years. So his liquid assets are about $92,500 but his total assets are about $96,500. His personal effects are not of significant value.

   491. The documents relating to the administration of both Jason Gill’s parents’ estates show that the distributions he would otherwise have received from those estates were reduced by satisfying various outstanding loans. Jason Gill borrowed widely from acquaintances, accepting informal loans of much the same kind that he had from Dr Garrett.

   492. Jason Gill owes his solicitors and barrister their fees for acting for him for the last three years in these proceedings. He also owes $28,000 relating to the successful defence of the NCAT proceedings brought by the executors and in relation to the annulment of his bankruptcy. The Court accepts that Mr Gill has these significant liabilities related to these and the other proceedings.

   493. Jason Gill has not received any income from computer broking activities since he affirmed his original affidavit in April 2017 nor has he obtained employment since that time. This was the state of his finances at the time of hearing.

   494. The plaintiff says that he has been unable to locate a suitable home unit in Sydney’s eastern suburbs for less than $800,000. There is no evidence of particular need on the part of any other beneficiary of Dr Garrett’s estate competing with the claims of Jason Gill.

   495. Jason Gill also has health issues. In his updating affidavit in March 2019, just before the hearing, Jason Gill revealed that he had a back condition and had been suffering pain, weakness and restriction of movement in his legs arising from this condition, which had been painful for a period of 12 to 18 months and had caused him to have a number of falls. He was scheduled to have an operation after the hearing. Because of delays in public hospitals, he had elected to have that surgery undertaken privately which he estimated would cost him about $20,000. This surgery had taken place by the time of final submissions.

   496. The plaintiff’s March 2019 affidavit also annexed a summary of his medical history, although the conditions listed were described as “active”, which appears to indicate some of the conditions were still present. The conditions identified included spinal canal stenosis, apparently the source of his back pain. But among his active conditions, the summary refers to conditions described in the doctor’s words as “alcohol excess”, “fatty liver” and “mild liver impairment”. This medical assessment confirms Jason Gill’s drinking habits. But otherwise he has a number of conditions that are not uncommon at his age.

   497. If the Court had found factors warranting and had ignored Jason Gill’s conduct towards Dr Garrett, the Court would have embarked on consideration of what further provision would be adequate for Jason Gill. The Court would have analysed the passage of seven years from the time Dr Garrett made his last will in June 2008. It is likely that the Court would have concluded that the provision in the will for Jason Gill was out of date. His circumstances had changed in a number of directions. He was seven years older and was somewhat more likely to need health support and somewhat less likely to be able to support himself financially with the passage of time. He had provided a further seven years of companionship to Dr Garrett. At the same time he had benefited from a further seven years of free accommodation and a fully financially subsidised lifestyle including his daily sustenance.

   498. The structure of the will in June 2008, as explained in clause 8, was for the then documented outstanding loan monies of $98,000 to be repaid to the estate by Jason Gill after he received the sum of $200,000. The bequest of $200,000 was contemplated to be the resource from which the loans up to that date would be repaid. The bequest was also expressed to be for “the contribution made by the devisee by way of assistance he has provided to me whilst residing at my home in the nature of cooking meals, general household tasks, driving me to appointments and the like and his general companionship”. The object of the bequest was to recognise Jason Gill’s contribution so described by satisfying his documented loan liabilities and, on top of that, to provide him with a net financial cushion of a little over $100,000 to assist him to move on to the next stage of his life.

   499. It should be inferred from the 2008 will that Dr Garrett knew that he had been lending some money to Mr Gill and that this money was unpaid. But he was prepared to forgive those debts to free Jason Gill from his past liabilities to him. In 2008, Dr Garrett wished that when his life with Jason Gill came to an end, that Jason Gill would have a legacy sufficient to alleviate any immediate hardship and to give him a financial cushion for the future in gratitude for Jason's care for him. But when competent at the time of that will, he did not recognise any obligation to provide for Mr Gill for life.

   500. In June 2008, Dr Garrett was valuing Jason Gill’s assistance at home and other services for a period of about 4 ½ years, from late 2003. Dr Garrett had Jason Gill’s companionship for a longer period, back to 1998, another six years. Looking at the matter somewhat as the deceased did, it might perhaps be arguable for there to be a proportionate increase in Dr Garrett’s legacy to Jason Gill by an additional $200,000 or perhaps as much as an additional $250,000. But Dr Garrett did not make an independent decision to promise the Paddington property to Jason Gill. Nor did he suggest that he had a moral obligation to support Jason Gill for life. So there would be no logical reason to depart very far from the structure of the 2008 will other than perhaps to have it updated slightly.

   501. But it is difficult to justify any increase in the amount given under the 2008 will, for two main reasons. First, once the full extent of the benefits that Jason Gill has already received as a result of his association with Dr Garrett are quantified and taken into account, it can be seen he has already been well rewarded. What he was doing for Dr Garrett was of different quality but of much the same order in these additional seven years. It is true that Jason Gill’s needs for financial support were greater in 2015 than they were in 2008 and his capacity to provide for himself less after the additional passage of time. But over the course of the whole relationship between 2004 and 2015 he has already received substantial additional valuable net benefits of the order of $822,228.75 from his association with Dr Garrett. The Court would see no reason to award him any more than he had already received over this period.

   502. But once Jason Gill’s unconscionable conduct towards Dr Garrett is taken into account, making any award of further provision in Jason Gill’s favour is even more difficult to justify. There is no basis for the Court to give him sufficiently large further provision out of the estate so that he could receive a net $200,000-$250,000 after satisfying all his existing loan and other obligations to the estate. But Succession Act, s 60(2)(i) and (m) requires the Court to take into account Jason Gill’s conduct towards Dr Garrett before his death.

   503. Thus, had the Court not concluded that there were no factors warranting the bringing of Jason Gill’s application, further provision out of Dr Garrett estate would not have been made.

Analysis of the Estate’s Cross-Claim

504. The executors filed and pursued a Cross-Claim in the proceedings. The executors bring two types of claim. The first relates to the Paddington property and the second is in relation to the return of moneys they claim that Jason Gill acquired either in breach of a fiduciary duty he owed to Dr Garrett or by unconscionable conduct disadvantaging Dr Garrett.

Claims in relation to the Paddington property

505. The executors claim possession of the Paddington property. They are now the registered proprietors of the property and are entitled to immediate possession, subject to any claims of Jason Gill. The Courts’ determination of Jason Gill’s claims in these proceedings has dismissed his claim for entitlement to any equitable interest in the Paddington property. He therefore has no Defence to the Cross-Claim for possession of the property. The Court will enter judgment for possession accordingly.

506. In the course of final submissions, the Court sought the parties’ acknowledgement that whoever was unsuccessful in the proceedings would accept that vacating the Paddington property within a period of three months. Since February this year, the Covid-19 public health crisis has arisen, which was not in contemplation when the three-month period was acknowledged. But the three-month period provided ample flexibility to whoever was the unsuccessful party. And the parties have had the period since judgment was reserved to prepare for the outcome. As Jason Gill has been unsuccessful, the Court will permit a writ for possession to issue three months from the date of this judgment.

507. The executors’ alternative claim was for compensation for their mistake in improving and maintaining the Paddington property after Dr Garrett’s death in the belief that it was the estate’s free of any claim by Jason Gill. The claim included improvements of $13,155.19 made to the Paddington property since that date, and for rates and utilities relevant to the property of $21,147.65.

508. Were the Court to have granted Jason Gill relief in the form of entitlement to the property, their expenditure would have been on a mistaken basis, enlivening their entitlement to restitution for unjust enrichment. But Jason Gill’s claim has failed. The executors are entitled to possession of the property. This alternative claim for unjust enrichment can be dismissed.

Breach of Fiduciary Duty and Unconscionable Conduct

509. Outline of the Claim. The executors/cross-claimants seek a declaration that Dr Garrett and Jason Gill were in a fiduciary relationship and that Jason Gill as a fiduciary, acted in breach of the duties he owed to Dr Garrett. In the alternative, and by reason of the same conduct as is said to constitute a breach of fiduciary duty, the executors claim that Dr Garrett suffered loss by reason of Jason Gill’s unconscionable conduct. The executors seek to recover equitable compensation for the alleged breaches of fiduciary duty and the alleged unconscionable conduct.

510. The executors’ breach of fiduciary duty claim related to the financial transactions that followed Dr Garrett’s stroke in November 2008 until Dr Garrett’s death on 5 August 2015. The executors allege that during that period, Dr Garrett placed trust and confidence in Jason Gill to carry out daily financial transactions on his behalf including cash withdrawals and was in a position of great vulnerability with respect to the functions reposed in Jason Gill, as would constitute a fiduciary relationship between them. The executors’ case is that in withdrawing Dr Garrett’s funds to pay what were described as “household expenses” that Jason Gill accepted office as a fiduciary to act for, on behalf of and in the interest of Dr Garrett and for his benefit in expending those funds.

511. Alternatively, with respect to the same transactions, it is alleged that Dr Garrett was to Jason Gill’s knowledge in a position of special disadvantage by reason of factors including Dr Garrett’s diminished cognition, his physical disabilities and Jason Gill’s control over him, such that when Jason Gill was carrying out daily financial transactions on behalf of Dr Garrett, to the extent that he benefited himself beyond certain reasonable limits, Jason Gill engaged in unconscionable conduct.

512. The transactions in question mostly occurred on the three accounts, the CM Account, the Choice Account and the St George Account. All the withdrawals which are said to constitute the breach of fiduciary duty were from ATMs or were branch assisted cash withdrawals.

513. Jason Gill contests the executors’ characterisation of his relationship with Dr Garrett. In his Amended Defence, he denies that Dr Garrett placed trust and confidence in him so as to give rise to any kind of legal or equitable duty on his part to Dr Garrett. It is not in issue that Jason Gill used Dr Garrett’s funds and accessed Dr Garrett’s ATM accounts. Jason Gill says that this was for their “mutual living expenses” and that Dr Garrett permitted him to use his funds in this manner. Jason Gill’s case throughout denied any relationship of trust in his execution of these transactions.

514. The executors substantially modified and refined this claim over the course of the hearing. The present analysis is of the modified claim that the executors put in final submissions. The executors not only cross-claim for breach of fiduciary duty and for compensation for unconscionable conduct but they deploy the facts relevant to these remedies in defence of Jason Gill’s claims in contract, equitable estoppel, the restitutionary claim for remuneration and his claim under Succession Act, Chapter 3.

515. The applicable legal principles in relation to breach of fiduciary duty and unconscionable conduct may be shortly stated.

516. Fiduciary Duty - Applicable Legal Principles. All fiduciary relationships contain a critical feature that Mason J identified in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 (“Hospital Products”) at 96-7:

“... that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position.”

517. (1984) 53 ALR 417; [1984] HCA 36

518. The obligations of the fiduciary to the fiduciary’s principal have often been defined. A classic statement of the essential duties of the relationship appears in Chan v Zacharia (1984) 154 CLR 178; (1984) 53 ALR 417; [1984] HCA 36 at 199 per Deane J:

“[A] person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain (i) which has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between his fiduciary duty and his personal interest in the pursuit or possible receipt of such a benefit or gain or (ii) which was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it.”

519. But the duty is best couched in negative terms, as one not to make a gain from a position where the fiduciary is in a position of conflict of interest and duty, without the informed consent of those to whom the duty is owed, as was expressed in Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 at 197-199, McHugh, Gummow, Hayne and Callinan JJ:

“... [T]he fiduciary is under an obligation, without informed consent, not to promote the personal interests of the fiduciary by making or pursuing a gain in circumstances in which there is 'a conflict or a real or substantial possibility of a conflict' between personal interests of the fiduciary and those to whom the duty is owed.”

520. The scope of a fiduciary’s obligations and whether or not they have been breached are informed by the nature of the relationship and what the fiduciary is asked to do in each case.

521. The present case is not one of the fiduciary relationships well recognised by the Courts such as that of partners, principal and agent, director and company, master and servant and solicitor and client. But the categories of fiduciary relationships are not closed. In determining the scope of the fiduciary’s obligations, and whether those obligations have been breached, the nature and terms of the relationship are critical: Hospital Products at 68; Maguire & Tansey v Makaronis (1997) 188 CLR 449 at 463; [1997] HCA 23; Ultra Tune Australia Pty Ltd v McCann (1999) 30 ACSR 651 at [80] per Hansen J.

522. Unconscionable Conduct – Legal Principles. The executors claim in the alternative equitable compensation for unconscionable conduct based on the well-established principles stated in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; (1983) 46 ALR 402; [1983] HCA 14 (“Amadio”), see also Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 368 ALR 1; [2019] HCA 18. In Amadio Mason J said the following (at 467) in relation to the knowledge of special disadvantage which was required to establish unconscionable conduct:

“As we have seen, if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A’s) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same.”

523. In this branch of the relief, the executors claim equitable compensation on the basis that Jason Gill was at all relevant times aware of Dr Garrett’s position of special disadvantage in relation to him but nevertheless he took advantage of Dr Garrett’s weaknesses in effecting financial transactions on his behalf, such that it would now be unconscionable for him to retain the benefit of those transactions.

523. Findings in Relation to the Claim. In addition to the earlier factual narrative, more detailed findings are required about the financial arrangements between Dr Garrett and Jason Gill. Although Jemima Garrett had a power of attorney from Dr Garrett, she did not effect his day-to-day expenditure. That was left with Jason Gill who always had a degree of control over Dr Garrett’s bank accounts for that purpose.

524. Dr Garrett had three accounts that were used for his daily expenses and from which it is alleged Jason Gill withdrew funds that the executors now say are unaccounted for. These were the CM Account; the Choice Account and the St George Account, which have been identified earlier in these reasons.

525. Jason Gill argues that it cannot be assumed that he conducted the cash drawings on these three accounts. But it needs to be remembered what acts are involved in the ordinary use of an ATM machine for someone like Dr Garrett in 2009. The acts include: thinking about his future needs for cash; making a decision to withdraw cash; finding a machine; remembering a PIN number or remembering where a PIN number was written down; and then operating the ATM machine. In the Court’s view, by very early in 2009, Dr Garrett’s memory and organisational skills were so poor that he would have needed assistance with several of these steps before he could withdraw cash. It is safe to infer that Jason Gill was involved in some aspect of all cash withdrawal transactions from no later than Dr Garrett’s stroke in November 2008.

526. The claim for breach of fiduciary duty, or any alternative unconscionable conduct, dates only from the date of Dr Garrett’s stroke up to the date of his death and consists of the following components. It is for limited amounts of ATM cash withdrawals from Dr Garrett’s accounts that were regularly used by Jason Gill together with associated ATM fees. And the second component of the claim is for the storage fees that were incurred during that same period.

527. The executors seek an order that Jason Gill account for, or suffer an order for equitable compensation for, the following amounts in respect of the following components of the claim:

1. $142,100, being the total of the cash that Jason Gill withdrew in cash from each of the CM Account ($47,096.00), the Choice Account ($58,406.00) and the St George Account ($36,598.00) during the period from 17 November 2008 to 5 August 2015 calculated at a rate of $58.00 per day;

2. $1,175.50 in ATM fees;

3. $43,155.64 for storage costs incurred by Dr Garrett in the period 17 November 2008 to 23 February 2015 (being the date the storage ended), being part of the total storage costs of $69,349.64, a figure which Jason Gill admits.

529. The total value of the executors’ claim for breach of fiduciary duty and any alternative unconscionable conduct is therefore $186,431.14.

530. It is convenient first to deal with the claim in relation to the storage costs. In the Court’s view the claim for breach of fiduciary duty is not made out in respect of the storage costs. This was an existing liability which was created when Dr Garrett was fully mentally competent and continued to be incurred monthly thereafter for years. It did not involve any specific withdrawal of cash under a special delegation of a task or authority to Jason Gill to handle Dr Garrett’s money or to undertake something on his behalf. Rather it was just the continuation of an existing liability. For that reason is difficult to characterise Jason Gill’s relationship with Dr Garrett with respect to these storage charges as a fiduciary one. There is no breach of fiduciary duty made out with respect to these charges.

531. However, the storage charges represent continuous transactions between Dr Garrett and Jason Gill in which Dr Garrett is effectively advancing credit to Jason Gill every time he pays one of Jason Gill’s storage charges. The Court’s findings in the narrative of fact make clear that Jason Gill was well aware that Dr Garrett did not want the storage charges incurred. But one of the reasons that the storage charges were incurred was that Dr Garrett was mentally weakened from late 2008 early 2009 and was unable to insist on the storage coming to an end. The transaction is therefore continued only because Jason Gill took unconscientious advantage of Dr Garrett’s weakness. Throughout the period Dr Garrett was in a position of special disadvantage. All the storage charges for that period are recoverable from Jason Gill by way of equitable compensation. The parties can bring in final calculations of the amount due on this aspect of the cross-claim inclusive of interest, pursuant to the liberty to apply granted in the orders below.

532. In relation to the claim arising from cash withdrawals from the three accounts, the CM account, the Choice Account and the St George account, the executors are successful on the cross-claim in respect of the withdrawals from all three accounts.

533. Following Dr Garrett’s stroke on 17 November 2008 until 8 March 2011, Dr Garrett in his weakened state allowed Jason Gill to withdraw cash at ATM’s from the CM Account using Dr Garrett’s ATM Westpac Bank debit card and PIN to pay household expenses. Jason Gill must have been involved in these withdrawal transactions because the Court finds that Dr Garrett could not complete them on his own. But Jemima Garrett did not appreciate during that period that Jason Gill was taking for his own personal use, a minimum of $58.00 a day from the cash withdrawn from the CM Account totalling $47,096.00. This amount is in excess of what was required for a Jason Gill’s and Dr Garrett’s needs. Jason Gill did not dispute in cross examination the correctness of the calculations that led to this excess amount of $58 per day and the Court finds it is accurate. Jason Gill kept no records of his own of what he did with the cash that he kept for himself.

534. The total amount cash withdrawals that could not be attributed to any particular purpose during the CM Account during this period is quite large, $159,260.00. During this period substantial amounts of money were withdrawn and apparently dissipated because there is no evidence that Dr Garrett benefited from this money. For example $25,800 was withdrawn from the CM account in cash from ATMs in March and April 2010.

535. Between 7 February 2011 and 11 November 2013 Jemima Garrett also transferred $134,640.00 including the weekly cash budgeted amount of $700.00 from the CM Account to the Choice Account. The average dollar per week amount transferred from the CM Account to the Choice Account through this period was $935.00. Again, during this period, Jason Gill withdrew cash at ATM’s from the Choice Account using Dr Garrett’s MasterCard debit card to pay household expenses. And again without Jemima Garrett knowing during that period, Jason Gill was taking for his own personal use, a minimum of approximately $58.00 a day, or $406.00 per week, from the cash withdrawn from the Choice Account totalling $58,406.00. Jason Gill did not keep any records of what he did with the cash that he kept for himself.

536. Finally, from 12 November 2013 until 5 August 2015, Jemima transferred $71,341.00, including the weekly cash amount of $700.00, from the CM Account to the St George Account. The average dollar per week amount transferred from the CM Account to the St George Account was $791.42. During this period, Jason Gill withdrew cash at ATM’s from the St George Account to pay household expenses. And again without Jemima Garrett knowing during that period, Jason Gill was taking for his own personal use, a minimum of approximately $58.00 a day, or $406.00 per week, from the cash withdrawn from the St George Account totalling $36,598.00. Jason kept no records of his own of what he did with the cash that he kept for himself during this period.

537. By way of an aside during the whole period 17 November 2008 to 6 August 2015, the expert, Mr James, has found that there were many ATM cash withdrawals from various locations undertaken and large amounts of Dr Garrett’s funds were withdrawn from the CM Account, the Choice Account and the St George Account. Mr James’s analysis concludes that the total sum of $299,219.42 (being the total amount of unknown cash withdrawals of $306,369.42, less the sum of $7,150.00 known to be cash loans to Jason Gill as evidenced by chit records) was withdrawn in cash in this period beyond identified expenditure. Where this cash went is unknown. Jason Gill cannot account for it as he has no records to show what he did with it. Jason Gill was likely to be the substantial beneficiary of this cash but it is not all the subject of this fiduciary claim which is limited to $58 per day which can be readily established. The simple reality of the life being led by Dr Garrett Mr Gill is that only the latter had a substantial need for discretionary expenditure.

538. This excess expenditure identified in the cross-claim only occurred because Dr Garrett entrusted the withdrawal of this cash to Jason Gill because he was incapable of doing it himself due to his vulnerable state. In the performing the role of that specific task of cash withdrawal, Jason Gill was Dr Garrett’s fiduciary. The Court infers from Jason Gill’s inability to produce any records or account for this money that he cannot do so and so the Court will order equitable compensation for the three amounts claimed. It makes no difference that Jemima Garrett was imposing a budget on Jason Gill he was not at liberty to pocket cash for his own benefit.

539. Even if a the fiduciary duty could not have been established, the amount claimed of $142,100 would also be recoverable because of Jason Gill’s unconscionable conduct in undertaking transactions that took advantage of Dr Garrett’s position a special disadvantage by withdrawing cash from Dr Garrett’s accounts which was not restored to Dr Garrett.

540. The total amount of $142,100 plus interest is recoverable from Jason Gill by way of equitable compensation. The parties can bring in final calculations of the amount due on this aspect of the cross-claim inclusive of interest, pursuant to the liberty to apply granted in the orders below.

Conclusion and Orders

541. The plaintiff’s claim has failed in its entirety. The defendants shall have judgment for possession of the Paddington property after the three month waiting period that all parties agree was reasonable in the circumstances. The defendants/cross-claimants have been successful and the plaintiff/cross-defendant unsuccessful in the proceedings. Costs would ordinarily follow the event. But either party may perhaps seek a special costs order, so the Court will allow a period of 14 days before entering an order for costs in the defendants’/cross claimants’ favour on the ordinary basis. This will allow sufficient time for a motion to be filed for a special costs order, if required.

542. In case any party is of the view that any of his or their claims are undetermined by these reasons and orders, the court will grant liberty to apply that will need to be exercised within 14 days.

543. For these reasons, the Court makes the following orders and directions:

1. Dismiss all the plaintiff’s claims in his Summons and Statement of Claim.

2. Judgment for the cross-claimants for possession of the property, [address and folio identifier number not published], referred to in these orders as the “Paddington property”.

3. Grant leave to the cross-claimants to issue a writ for possession of the Paddington property at any time after Friday 16 October 2020.

4. Order that the defendants’ costs of these proceedings be paid out of the estate on the indemnity basis.

5. Note that unless a motion seeking a special costs order is filed by either party by 31 July 2020, the Court will make an order that the plaintiff will pay the defendants’ costs of these proceedings on the ordinary basis.

6. Grant liberty to apply.

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Decision last updated: 16 July 2020