Grant v Grant; Grant v Grant (No. 2) - [2020] NSWSC 1288

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288
Hearing dates: 4, 5, 6 & 7, 10, 18 February and 15 April 2020
Date of orders: 24 September 2020
Decision date: 24 September 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
In the estate recovery proceedings orders made setting aside the transfer of real estate to the second defendant and the lease from the second defendant to the first defendant. Costs follow the event in the estate recovery proceedings. In the family provision proceedings the plaintiff’s claim is dismissed. Costs follow the event in the family provision proceedings.

Catchwords:
EQUITY – unconscionable bargains – elderly person, since deceased, gives power of attorney to his eldest daughter – she uses the power of attorney to transfer the deceased’s home to her own daughter, either for no consideration, or for named consideration of $900,000 – no formal security was given after the transfer of the property for the payment of the purchase price – deceased’s eldest daughter also transfers money out of the deceased's bank accounts – these transactions left the deceased without the capacity to meet his nursing home outgoings – the deceased’s estate now seeks recovery of the property and an account of moneys transferred from his accounts – whether transactions were in breach of fiduciary duty, or unconscionable, or beyond the authority conferred by the deceased’s power of attorney to his eldest daughter.
FAMILY PROVISION – a mother of five children leaves a will which failed to make any provision for her eldest daughter, the plaintiff – after the death of the mother the plaintiff claims that she has been left without adequate provision from the estate of the deceased for her proper maintenance, education or advancement in life – whether the plaintiff has received money during the lifetime of the deceased – whether the plaintiff by her conduct has disentitled herself from making a claim upon her deceased mother's estate – whether the plaintiff has been left without adequate provision from the estate of the deceased for her education, maintenance and advancement in life.

Legislation Cited:
Civil Procedure Act 2005, s 100
Evidence Act1995, s 140(2)(c)
Powers of Attorney Act2003
Real Property Act 1900, s 42(1)
Succession Act 2006, Chapter 3, s 59(1)(c)
Uniform Civil Procedure Rules 2005, r 7.10

Cases Cited:
An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747
Baden & Ors v SociétéGénérale pour Favoriser le Développement du Commerce et de l'Industrieen France SA [1992] 4 All ER 161
Barnes v Addy (1874) LR 9 Ch App 244
Drury v Smith [2012] NSWSC1067
Ellem v Webber [2020] NSWSC 910Evans v Levy [2011] NSWCA 125Drury v Smith [2012] NSWSC1067
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Keaton v Gumulak [2020] NSWSC 943
Kiernan v Cranston and Purcell as Executors of will of Cranston (No 2) [2019] WASC 410.
Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725
Portis v Green [2017] NSWSC 1489
Simmons v NSW Trustee and Guardian (2014) 17 BPR 33,717
Singer v Berghouse (No. 2) (1994) 181 CLR 201
McFee v Reilly [2018] NSWCA 322
Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725
Toscano v Toscano [2017] NSWSC 419
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron (2015) 324 ALR 641

Category: Principal judgment
Parties:
In proceedings 2017/316190 ("the estate recovery proceedings"):

Representative of the Estate of Alan Grant: Seth Grant
First Defendant: Nerez Grant
Second Defendant: Kashaya Grant

In proceedings 2018/139174 (“the family provision proceedings”):
Plaintiff: Nerez Grant
Executor of Gwynneth Grant’s estate: Seth Grant
Representation:
Counsel:
For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: A. Hill

Solicitors:
For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: Robert McKessar, Braye Cragg Solicitors
First Defendant in both the Estate Recovery and Family Provision proceedings: in person
Second Defendant in the Estate Recovery proceedings: in person

File Number(s): 2017/00316190; 2018/00139174
Publication restriction: No

Judgment

Dr Alan Grant and Mrs Gwynneth Grant were a gifted and cultivated couple. He practised medicine as a radiologist and pursued a broad range of intellectual interests. She taught music, played violin in the Sydney Symphony Orchestra and had a passion for both the performing and pictorial arts. Though admired by their many friends, the Grants’ family life was deeply scarred by conflicts they could not resolve.
Dr Grant was born 100 years ago, in late 1920. Mrs Grant was born in 1930. They married in 1953 and had five children, Nerez (born 1956), Seth (born 1959), Ryven (born 1960), Miles (born 1961) and Tansin (born 1963). The Grant family who participated in these proceedings referred to one another by their first names. Without intending any disrespect to any party, this Court will do the same in these reasons.
Mrs Grant died in May 2017 and Dr Grant in November 2019. Their family conflicts must now be resolved by this Court through their estates, which are parties to two sets of proceedings that are being heard together.
As the representative of the estate of Dr Grant, Seth brings proceedings (no. 2017/316190) to recover real property and money from Nerez, as the first defendant and her daughter, Kashaya Williams, as the second defendant. Seth claims Nerez transferred this property and money out of Dr Grant's estate by misusing a power of attorney from him and abusing her position as his fiduciary ("the estate recovery proceedings").
In the estate recovery proceedings, the estate contends that whilst Nerez held a power of attorney from Dr Grant and had control of his care she depleted his estate of over $4 million between 2011 and 2017. In September 2017, using her power of attorney from Dr Grant, Nerez caused the transfer of the title to the last remaining family residential property in Killcare, on the Central Coast (“the Killcare property”) from Dr Grant to Kashaya for nominal consideration. The estate contends this was a breach of Nerez’s power of attorney, a dishonest breach of fiduciary duty. Alternatively, the estate contends that the transfer was made for a consideration of $900,000 and that Nerez and Kashaya never intended to pay this consideration to Dr Grant and that the transaction should be set aside on the same grounds. Either way Dr Grant’s estate puts its case, it alleges that the transfer of the Killcare property was liable to be set aside during Dr Grant's lifetime, and should now be set aside at the suit of his estate.
Nerez does not deny she caused the transfer of the Killcare property to Kashaya using her power of attorney. They both contend in defence of the estate recovery proceedings that the transfer of the Killcare property was merely to give effect to a gift that Dr Grant had always wanted to make to Kashaya, so she could provide a home for Nerez. Indeed Kashaya has already leased the Killcare property to Nerez for life.
The estate also claims the return of a sum of $100,000 which Nerez removed from Dr Grant's bank accounts in October 2017 under colour of her authority as her father’s attorney. The estate claims she has neither accounted for, nor promised to return, this money. Nerez acknowledges receipt of this sum but claims that it was a gift to her by her father. Nerez transferred $160,000 out of her father’s bank account into her own bank account after which she applied these funds for her own and her daughter Kashaya’s benefit. In conformity with orders of Kunc J, Kashaya later repaid $60,000 of this sum to the estate, leaving a net $100,000 unaccounted for and outstanding. The estate's case is that Dr Grant’s power of attorney did not confer on Nerez the power to make such gifts, either to herself or to other family members. Nerez disputes her lack of authority to use the power of attorney this way. The estate also alleges that this gift of money was a breach of her fiduciary duty to her father, which she denies.
Nerez also brings proceedings (no. 2018/139174) for further provision pursuant to Succession Act 2006, Chapter 3 out of the estate of her late mother (“the family provision proceedings"). Nerez received nothing in Mrs Grant’s last will made in May 2012. Nerez claims she has been left without adequate provision for her proper maintenance, education and advancement in life. Seth Grant is an executor of his mother's estate and in that capacity he represents her estate in the family provision proceedings.
Mrs Grant’s estate answers Nerez’s claim in two ways. First, it contends Nerez treated Mrs Grant so badly she is not entitled to an order for provision out of her estate. Nerez denies she had a poor relationship with her mother. Second, Mrs Grant’s estate contends Nerez received substantial gifts from Mrs Grant during her lifetime. But in reply to this Nerez claims that her other siblings received as much as she did from her mother during her mother’s lifetime and that this is no basis to justify leaving her out of her mother’s will.
These proceedings have a relatively complex history. After Mrs Grant died in May 2017, Dr Grant revoked his existing power of attorney to Nerez in October 2017 and appointed Seth as his attorney in her place. Once Seth had access to his father’s bank accounts, he discovered evidence that he believed showed that Nerez had removed large amounts of money from his father’s accounts and that in the previous month, September 2017, she had transferred the title to the Killcare property to Kashaya. He immediately commenced the estate recovery proceedings, as his father’s tutor.
But Nerez objected to Seth acting as her father’s tutor in the estate recovery proceedings. Orders were made for the NSW Trustee and Guardian to manage Dr Grant’s financial affairs. The NSW Trustee and Guardian became his tutor and represented him in that capacity until his death in November last year. At that point the Court appointed Seth to represent his father’s estate under Uniform Civil Procedure Rules 2005 (“UCPR”), r 7.10 in these proceedings and with a view to the proceedings being heard within their originally allotted hearing dates of 4 – 7 February 2020.
Nerez sought to remove Seth as a representative of Dr Grant’s estate and to stay the estate recovery proceedings. At this point it should be mentioned that in separate probate proceedings (“the probate proceedings”) Seth has sought a grant of probate of Dr Grant's will made in 2018, and in the alternative, a will he made in 2011, both of which divide Dr Grant’s property equally among his five children. But Nerez now propounds a 2012 will Dr Grant made, which gives her a substantial part of his estate. Seth and Tansin allege that the 2012 will was executed in suspicious circumstances. Nerez denies there were any suspicious circumstances in its execution. In November 2019, Nerez sought to stay the estate recovery proceedings until the resolution of the probate proceedings. In the interim she applied for her brother, Miles to represent Dr Grant’s estate instead of Seth.
On 5 December 2019, the Court dismissed that motion in reasons which have already been published: An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747. A non-publication order was made in respect of the Court’s 5 December 2019 judgment, because of Dr Grant’s then grave incapacity in what were then in substance protective proceedings. But as Dr Grant is now deceased there is no reason to maintain the non-publication order. Without altering the text of that judgment, unless it is required, references to it in these reasons is sufficient to identify all the parties to it.
By motion filed with the Court’s leave on the first day of the present hearing, Nerez applied once again to stay the estate recovery proceedings, as she had now filed a Summons in the probate proceedings. But the Court rejected that application which was essentially repetition of the arguments that the Court had fully dealt with in An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747.
These proceedings were conducted over six days between 4 and 7 February 2020 and on 18 February and 15 April 2020. Mr A. Hill of counsel instructed by Mr R McKessar of Braye Cragg solicitors appeared for Dr Grant’s estate in the estate recovery proceedings and for Mrs Grant’s estate in the family provision proceedings. On 3 August 2020, after the trial had concluded and all submissions had been received, Mr McKessar filed a Notice of Ceasing to Act. Nerez appeared for herself as a defendant in both the estate recovery proceedings and as the plaintiff in the family provision proceedings. Kashaya appeared for herself in the estate recovery proceedings. The probate proceedings will be heard and determined later by another judge, if the matters raised within them remain in issue.
Kashaya and Nerez presented their cases with confidence. They cross-examined every witness called on behalf of the two estates. And from time to time they advanced oral submissions based on the evidence. All but one of Dr and Mrs Grant’s children gave evidence. Miles Grant took no part in the proceedings.
But Kashaya and Nerez did not respond to the many opportunities the Court afforded them to better advance their respective cases. Despite clear directions to the parties to do so, by the first day of the trial, neither of them had provided any objections to the estates’ material. The Court admitted the other parties’ evidence subject to Nerez and Kashaya’s rights to object at a later time. They did not further pursue objections to this evidence.
The Court received no opening written submissions from Nerez or Kashaya prior to trial, despite pre-trial orders and directions for them to do so. The Court therefore provided them each an opportunity to develop their cases orally at the opening of the proceedings. They had not given any advance notice as to which witnesses from the estates they required cross-examination. But the Court required all witnesses to be called on behalf of the estates to be present to be cross-examined.
On 6 March 2020, Nerez filed submissions on her family provision claim. No written submissions were filed by Kashaya. On 8 March 2020, the estates’ closing submissions for both proceedings were filed, though mistakenly they were not served on Nerez and Kashaya until 15 March 2020. Prompted by an email from Kashaya raising this issue of service, the Court also forwarded the estates’ submissions to the parties on 16 March 2020.On 1 April 2020, the estate provided submissions in reply to Nerez’s 6 March submissions.
The Court reminded Nerez and Kashaya to provide closing written submissions, and they were granted liberty to apply. On 27 March 2020, the Court advised the parties that due to COVID-19 restrictions, the balance of submissions in the matter would be dealt with in writing, as the oral evidence had been completed. This allowed Nerez and Kashaya to develop their submissions at home, which is what they wanted. And on 2 April 2020, the Court made orders extending the time for Nerez and Kashaya to file their final submissions to 1 May 2020. The Court put them on notice that if their closing submissions were not received by 1 May, the Court may proceed to give judgment in both proceedings without further hearing from them.
On 1 May 2020, the Court received final written submissions from Nerez, “on behalf of my daughter, Kashaya Williams, and myself”. On 8 May 2020, Nerez also emailed my Associate an additional paragraph to her submissions. Nerez stated in these submissions that they had been written without the benefit of both transcripts of the proceedings and of the estates’ submissions. She had previously told the Court that she could not afford to pay the fee for the transcript. On hearing this, the Court referred her on 4 February 2020 to the duty registrar to seek, if she chose, a waiver of the transcript fees.
The Court has taken account of Kashaya’s various oral submissions and statements to the Court during the hearing as representing the substance of her defence in the estate recovery proceedings. In an email to my Associate on 1 April 2020 Kashaya foreshadowed her intention to file joint written submissions with her mother.
The Court reserved its decision on 3 July 2020, noting at the time to the parties that no separate written submissions had been received from Kashaya. The Court gave the parties approximately a week’s notice that this judgment was going to be delivered. Kashaya did not make any application to be heard further before judgment was given.
The next section of these reasons is a narrative of the history relevant to both the estate recovery proceedings and the family provision proceedings. 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 include reference to versions of the facts that have been rejected. Nor does it seek to record every aspect of the history of this family or to resolve every contest of fact that has arisen among the parties. The Court is required to focus on the real issues in dispute and to that end the Court has selected what in the Court’s analysis are the more important events that are directly relevant to the issues in contest.
But before that narrative commences, a general assessment of the credibility of the parties and their witnesses is useful. Specific instances of matters relevant to the credibility of these witnesses appear throughout these reasons.

Credibility of Parties and Witnesses

Seth Grant. Professor Seth Grant is a medical scientist. He was a precise and reliable witness who gave thoughtful testimony based on well-embedded memories. As his professional background might indicate, he took a careful and measured approach to the recounting of facts. But the past conduct of his sister Nerez and his niece Kashaya clearly aggravated him, no doubt because he had experienced it throughout his life in ways that had impaired the quality of family relationships, including his own relationship with his parents. His court room questioning by his sister and by his niece appeared to return him to long-standing family conflicts.
But despite that he was generally patient with his cross-examiners. Not unnaturally, he was keen to make sure that his answers gave the full historical picture of the family from his point of view. But unlike many witnesses who give lengthy answers in situations of family conflict, his replies were all responsive. He did not exaggerate the facts and was clearly attempting to remain dispassionate about his eldest sister. His evidence is wholly accepted.
Mr Benjamin Isaac. Mr Isaac and his wife Myra had been family friends of Dr and Mrs Grant for a long time. Both Mrs Grant and Mrs Isaac were accomplished musicians. A mutual love of music brought the two couples together. Mr Isaac was a most empathetic individual, who had a strong affection for both Dr and Mrs Grant which had developed over many years. It was not entirely surprising therefore that he sought out Dr Grant when Dr Grant was placed in a nursing home by Nerez in 2013. He went searching for Dr Grant to make contact with him and see how he was faring.
Although a somewhat older man, Mr Isaac’s memory was not impaired by time. His recollections were sound and reliable. He was an excellent witness in whom the Court has great confidence. All his evidence is accepted.

Ms Caroline Nolan. Ms Nolan was the carer for Mrs Grant in the later years of her life. Tansin engaged her in this role to provide additional care, companionship and supervision for Mrs Grant both at Tansin’s home and later in the James Milson retirement village in North Sydney.
Ms Nolan was a considered, reliable and thoughtful witness whose evidence the Court entirely accepts. She could give detailed accounts of a number of incidents that she recalls taking place between Mrs Grant and other members of the family in October 2011. Despite the passage of time, her recollection of these events was quite vivid and the Court accepts it all. The Court had all the more confidence in her testimony because of her capacity from time to time carefully to mark out areas of her recollection, which she did not think were as good as her principal memories. Her testimony was most important in understanding the Grant family dynamics.
Ms Sally Saxby. Ms Saxby was employed as a carer for Mrs Grant for many years up until 2010. She was a sound, reliable and honest witness of events. She had been engaged by Tansin to be a carer and companion for Mrs Grant. She did so with fidelity to her role and with obvious affection for Mrs Grant. Nerez and Kashaya accused her of being biased in Tansin’s favour. But no bias was evident in her testimony. She had a striking recollection of aggressive statements that Nerez had made to Mrs Grant in her presence. And when giving evidence many years later she was still visibly moved by the impact she perceived this aggression had upon Mrs Grant. She rankled at both the humiliation and the injustices Nerez had occasioned to both her parents. Ms Saxby vividly described how Dr Grant had been “taken over” by Nerez. The Court accepts all Ms Saxby’s evidence.
Ms Jill Shaw. Ms Shaw became a close companion and carer of Mrs Grant in her final years after Ms Saxby ceased to be Mrs Grant’s carer. Ms Shaw had been a friend of Mrs Grant from the time they met at an art school on the lower North Shore. They had much in common, especially their strong interests in art and music. She had genuine admiration for Mrs Grant’s broad cultural knowledge and interests.
The Court fully accepts Ms Shaw’s evidence. Although she too was paid by Tansin, she had no bias by reason of that towards Tansin or towards Tansin’s side of this case. She had genuine empathy for Mrs Grant and she found pleasure in her companionship with her. Ms Shaw gave compelling evidence based on sound memories. The Court accepts all her often detailed accounts of events within the Grant household. In particular the Court accepts Ms Shaw’s account of the strong statements Mrs Grant made about her daughter Nerez, and about Nerez’s conduct towards Mrs Grant.
Mr John Patrick Quinn. Mr Quinn, a solicitor, made a number of wills for Mrs Grant. He maintained high standards of professional practice. He became involved with the family through Tansin’s partner, Warwick Miller. But despite that connection he discharged his duties with complete professional objectivity. He was reliable in all his testimony, which the Court wholly accepts.
Ms Theresa Sienkiewicz. Ms Sienkiwicz was a friend of the Grant family, but mainly of Mrs Grant. She lives in the United Kingdom and gave evidence by telephone. Her background was as an accountant. She had received an Order of the British Empire for services to the accounting and pensions professions. Ms Sienkiwicz visited Sydney from time to time to spend time with Mrs Grant. During these visits she had the opportunity of seeing Nerez interact with Mrs Grant on many occasions. Despite the fact she was giving evidence by telephone from the UK, her clear discomfort at witnessing what were not uncommon confrontations between Nerez and her mother were quite palpable. She had a good memory for detail, partly because she was shocked by some of what she saw and that made her remember it. Her evidence was always precise, considered and reliable. The Court accepts all of what she said.
Mr Warwick Miller. Mr Warwick Miller has been Tansin’s partner in life for many years. The scene of some of the conflicts involving Mr and Mrs Grant took place in and outside Warwick’s and Tansin's property in Carabella Street, Kirribilli (referred to in these reasons as “the Kirribilli property”). Warwick Miller was thoughtful and reasonable but often shocked by what he saw. He was a latecomer to the Grant family dynamics and was alarmed by a number of the incidents that his evidence required him to recount. His testimony about these incidents was quite compelling even though given years after the events he was describing.
His approach to the Grant family affairs was to try and bring as much order and reason as possible to the parts of them that affected him and Tansin. He was highly supportive to his partner and her family. But that support was tempered by a natural caution: he was never quite sure what was going to happen next in dealing with Nerez and Kashaya. He was a wholly reliable and honest witness and his evidence is fully accepted.
Nerez has her own perspective on Warwick Millers’ introduction to the family. She says "before Warwick Miller appeared in our lives our family was happy and everyone got along well". This seems to imply that Warwick Miller was somehow the cause of the family discord. Nothing in his evidence or his demeanour in the court room gives any basis to draw such a conclusion.
Mrs Marguerite Grant. Mrs Marguerite Grant is married to Professor Seth Grant, they live in Cambridge in the United Kingdom. Marguerite Grant visited Australia from time to time with her husband on family holidays and importantly she well remembers Mrs Grant's visit in February/March 2011, when she came to stay with them in Cambridge for respite from events in Sydney.
Marguerite Grant was a direct, reliable and honest witness, who gave a faithful and accurate account of family events that she had witnessed. Her accounts of these events in her testimony at times triggered a degree of emotion in her delivery. But her emotional response to these events was not exaggerated; rather it was an indication that in her evidence she was drawing upon some deeply embedded memories about unpleasant events. The Court entirely accepts her evidence.
Tansin Leckie. Like her brother Seth, Tansin has grown up with Nerez as her eldest sibling. Years of dealing with Nerez have made Tansin cautious, cold and defensive with her oldest sister. As Nerez was not legally represented in these proceedings, Nerez’s cross-examination of Tansin was probably the lengthiest re-exposure to direct communications with Nerez that Tansin had suffered for many years. This had a number of important consequences.
First, Tansin’s coldness towards her cross examiners confirmed what she described in the substance of her testimony: namely, years of abusive conduct by her older sister, who Tansin regarded as manipulating her parents, particularly her father, and which she regarded as having destroyed the Grant’s family life. Tansin unpicked Nerez’s and Kashaya’s questions, seeking clarification of their ambiguities and uncertainties, to ensure that they were comprehensible to her. This process was indicative of someone who had long dealt with a chaotic figure in Nerez who she needed to try and control by reason.
Second, Tansin’s evidence was given at times with irritation about Nerez. But this was no more so than was warranted by the events that she was describing. Despite years of Nerez’s aggravating conduct, Tansin did not exaggerate the various events that she described within their family history. She was accused time and again of fabricating testimony. But the Court rejects the contention that she deliberately fabricated any of her testimony. Indeed apart from Tansin’s version of events, Nerez and Kashaya proffered few other explanations for the events she described.
Tansin was an honest and reliable witness in whom the Court has confidence and whose evidence the Court wholly accepts.
Nerez Grant. Nerez’s evidence constantly distorted the Grant’s family history. In her testimony she was prepared to say whatever she thought suited the moment, whether accurate or not. She showed no obvious preference for the truth over other convenient accounts of the past.
Her testimony was wholly unreliable. The Court does not accept it, unless it coincides with other accepted testimony or incontrovertible facts. She gave accounts of events which stretched credulity. She frequently could not give a coherent account of the context of conversations which she claimed had taken place and which she had probably invented.
Under cross-examination Ms Grant was quick to correct her questioner and was often argumentative. She was skilled in selecting a small detail in a question that was incorrect as a basis for disputing the question. At other times she gave long historical explanations for her answers that were of marginal relevance to the question.
The Court had days to observe her in the courtroom both in the witness box and as her own advocate. She generally conducted her case with self-confidence. But she could momentarily flash sharp verbal aggression at those who displeased her, a capability the evidence suggests she was also adept at deploying outside the courtroom.
Nerez’s submissions are replete with disparagement of the intelligence and bodily appearance of some of her siblings and their spouses. These sort of unnecessary comments, that the Court need not repeat, show that her bitterness towards her siblings ran very deep.
Kashaya Williams. Nerez’s daughter, Kashaya Williams was cross-examined and throughout she showed a confident assertiveness, similar to that of her mother. She professed to tell the truth. But the Court regards her as unreliable. She made occasional admissions against interest but sometimes this was because she probably did not understand the implications of what she was saying.
She had made some sacrifices for her grandfather and these should be recognised. She had put him up for much of the period between 2011 and 2013. But during that period she derived handsome financial rewards from giving her grandfather lodging. Large sums of money were withdrawn from his accounts during his stay with her.
The Court regards Kashaya as an unreliable witness whose evidence will only be accepted to the limited extent that it coincides with other uncontested facts or reliable testimony.
Both Nerez’s and Kashaya’s evidence demonstrated an acute sense of what was in their own financial interests. Neither of them showed comprehension of the separate interests of Dr Grant, Mrs Grant or their other family members.
Findings of serious misconduct have been made against some witnesses in these proceedings. In reaching those findings the Court has had regard to the gravity of the matters alleged: Evidence Act1995, s 140(2)(c). It should be noted that both Nerez and Kashaya have contested all the adverse findings that have been made against them. But because they have been disbelieved and because there is reliable credible evidence to the contrary, the findings been made.
Where in this credibility analysis the Court has concluded that it accepts all the evidence of a particular witness, when that witness’s evidence is set out in the narrative below without comment, that evidence, as recorded, represents the Court’s findings on the relevant subject matter.

A Narrative of the Grant Family History – 1953 to 2018

The Early Years in Maitland and the Central Coast – 1953 to 1979

A short time after Dr Grant and Mrs Grant were married in 1953 they moved to the lower Hunter Valley to raise their young family. They lived in East Maitland between 1958 and 1974. Later they moved to the Central Coast, where they lived from 1974 until the early 1990s, when they came to Sydney’s lower North Shore. The family history of those early years reveals a profile of emerging conflicts.
Dr Grant practised as a radiologist from several Hunter Valley medical facilities including Maitland Hospital, Cessnock Hospital and Kurri Kurri Hospital. At the same time Mrs Grant taught music at primary and secondary schools and was a counsellor at several local high schools. Mrs Grant was also an assiduous property investor, purchasing and selling a number of properties in the lower Hunter region.
The children all went to local primary school at Tenambit, a suburb of East Maitland. Seth, Ryven, Miles and Tansin attended boarding schools in Sydney for their high school education. Nerez was uninterested in a private school education and attended Maitland Girls High School and Gosford High School. All the children attained their Higher School Certificate.
In 1974/1975, the family moved to the Killcare property on the Central Coast. Dr Grant established a private radiology practice in Gosford, with branch practices in Wyong and Toukley. Mrs Grant had periods away from the workforce while she looked after the children at home. And this was no small task, as significant challenges emerged in the Grants’ home life.
The evidence of Seth, Tansin and Ryven, as well as written statements of Mrs Grant, indicate that difficulties with Nerez began when the children were young and became a defining feature of all their lives.
From an early age, Nerez had a troubled relationship with many forms of authority, beyond normal teenage rebellion. Nerez’s conduct came to special attention even in primary school. Seth recalls Mrs Grant frequently visiting the Tenambit primary school to discuss Nerez’s behaviour. Mrs Grant even described Nerez’s conduct to Seth as “anti-social”. And she said of her in those years, “Nerez was a bad child from an early age. Nerez had temper tantrums and was very aggressive. Nerez had few emotions other than contempt for others.” But Seth, Ryven and Tansin could see that for themselves.
In her teenage years, Nerez fell in with what Mrs Grant described as “a bad lot”. Nerez often truanted from high school, resulting in Mrs Grant being called in by teachers to discuss her daughter’s behaviour. Nerez was increasingly involved in run-ins with the law and had poor school attendance, behaviour which distressed Dr and Mrs Grant. But her teenage behaviour can be left to one side. She is not to be judged adversely on that account in proceedings such as these. Findings about that period are included merely to show that she caused anxiety to both her parents from an early age.
Not long after leaving school, Nerez seriously injured Mrs Grant and Tansin in a motor vehicle collision on the Pacific Highway. Nerez was driving Mrs Grant and Tansin at speed when she lost control of the vehicle, crashed and both her passengers were injured. Tansin sustained a compound fracture to her femur requiring 10 weeks in traction. Mrs Grant later said to Seth of this incident, “the accident was caused by Nerez being intoxicated with drugs.” There is no evidence before the Court that Nerez was charged with any drug related offences arising out of this accident. But the Court infers from Mrs Grant’s statement, and other evidence from this period, that Nerez was probably using illicit drugs at this time and that Mrs Grant thought that such drug-taking had probably impaired her driving capacity.
Nerez showed some interest in higher education. In 1974 she commenced a science degree at Sydney University. Her parents supported her accommodation and living expenses in Sydney and they purchased her a new VW Golf motor vehicle. But Nerez did not attend classes and dropped out of university at the end of first year. Mrs Grant explained to Seth that Nerez’s failure to complete her degree was because “Nerez was only interested in drugs”.
By 1975/1976, Dr Grant and Mrs Grant had become concerned Nerez was stealing from them. Mrs Grant told Seth in these years, “I have to hide my purse and my jewellery. I am very upset that some of my own mother’s precious jewellery has been stolen by Nerez”. Whether this was to finance a drug habit or not, the Court accepts that Nerez was regularly stealing from her parents by this time.
After Nerez left University, Dr Grant found work for her as a secretarial assistant in his radiology practice at Gosford. She worked there in the period 1977 to 1979. But she proved unreliable. Both Dr Grant and Mrs Grant told Seth and Tansin, and Mrs Grant told her close friend Mrs Sienkiewicz, that they believed Nerez was stealing from the radiology business. The Court accepts that she was stealing petty cash and the silver residues left over from the processing of x-rays at the practice.
When Nerez was working at the Gosford practice, Dr Grant and Mrs Grant funded her accommodation in an apartment at Wamberal Beach. During this period, Nerez’s VW Golf was found burnt out at Killcare. Nerez confessed to Seth, “It was an insurance scam.” The Court infers that it was. Nerez received the insurance money for the vehicle. Dr and Mrs Grant purchased her a replacement vehicle.
Dr Grant’s medical practice in Gosford prospered. It expanded to branches in Wyong and Toukley. Nerez became the secretary at the Toukley practice, where she was left largely unsupervised. This gave her an opportunity to take money from the practice. The Court accepts that Mrs Grant said to Seth, “Nerez destroyed the Toukley practice by taking all the money when she worked there. Nerez took the money to support her drug addiction and illegal activities.” Mrs Grant told Seth that the money Nerez took amounted to about $600,000. Whether that amount is correct or not, the Court infers from what Mrs Grant said to Seth that Nerez took advantage of her unsupervised access to funds at the Toukley practice to help fund her drug habit.
Much evidence indicates that Nerez had a well-established drug habit by then. She shared the Wamberal Beach apartment with a friend. Mrs Grant complained to Seth that she often found Nerez’s drug paraphernalia both at Killcare and at the Wamberal Beach apartment.

The Children as Young Adults- 1980 to 1989

By the early 1980s, all the children, by now young adults, were pursuing studies, careers and relationships of their own. Dr Grant introduced Nerez to a fellow radiologist, Dr Bruce Markell, and the pair married. Seth pursued medical science studies in Australia and the United States, where he met Marguerite, who he later married. Ryven became a farm manager and set up his own handyman business in Killcare. Miles pursued studies in law, was admitted as a solicitor and practices as a corporate lawyer. And Tansin studied ceramics and interior design.
At Wamberal Beach Nerez was close enough to her parents at Killcare to be troublesome to them on a daily basis. Nerez began to harass her parents for money in the mornings. Seth recalls his parents telling him, and the Court accepts as an accurate account of Nerez’s conduct at the time, “Nerez’s typical routine is to come to our house very early in the morning when she knows we would be home and then come in and verbally attack and harass us”.
And Seth witnessed some of this conduct, as did other siblings. When he was at home, Seth saw Nerez verbally assaulting her parents on many occasions from this time. And Mrs Grant said to him, “Nerez constantly harassed me and your father for money and threatened us. Nerez will shout and scream and verbally abuse us with vile language.” The Court accepts this is what Nerez did.
Other siblings also saw Nerez confronting their parents. Ryven recalls on one occasion being called by his parents’ house as Nerez had become enraged over their particular choice of plumber for a job. On another occasion, Nerez pointed a gun at Ryven and Mrs Grant saying, “I have a gun and I will do anything I fucking want”.
Nerez was quite prepared to maliciously damage property to reinforce her threats. Mrs Grant told Seth on one occasion, “Nerez deflated the tyres on my car so that I would have an accident. Your father reported this to the police.”

Nerez’s marriage to Dr Markell did not last long. In about 1984 she had an affair with a night porter at a Sydney hotel, a Mr Gary Lewis. Nerez and Dr Markell separated within 12 months of their marriage and divorce proceedings were commenced. Nerez stayed with Mr Lewis. Taking drugs was one of their mutual interests. Seth saw them both consume cocaine and marijuana.
In 1985, Seth moved to New York to conduct medical research after completing his internship at the Royal Prince Alfred Hospital. He stayed in regular contact with his parents after that and visited Australia annually to see the family. Nerez and Gary Lewis visited Seth in New York. They asked him to keep a bag hidden in his apartment while they went to Florida. He looked in the bag and found that it contained $70,000 in cash. Neither Nerez nor Gary Lewis ever gave Seth an explanation as to how this money could have been acquired by legitimate means. Nerez later bragged to Seth, “I know ‘the snowman’, one of the most important drug dealers in the USA.” The “snowman” was apparently a reference to Mr Andrew Daulton Lee, a notorious US drug dealer convicted of espionage in the late 1970s.
Mrs Grant confided in Seth that Nerez was selling drugs and hiding some of them at the Killcare property. Both Dr and Mrs Grant were most anxious about this because, as they said, Nerez was “bringing strange people to the house for drug transactions”. The Court accepts that Mrs Grant said to Seth, “I am paralysed with fear” about this situation, and that she said she was disgusted “Nerez would do such an immoral thing as sell drugs that are harming others.”
In 1986, Nerez and Gary Lewis had a daughter, Kashaya. In 1987, Mr Lewis was sent to prison for seven years for drug-related offences. The family rallied around Nerez during this period. Dr Grant, Mrs Grant, Tansin and Ryven tried to check in on Nerez and Kashaya. They found Nerez struggling with addiction issues and having difficulty in providing adequate care for Kashaya.
Dr and Mrs Grant were very concerned about Nerez’s and Kashaya’s welfare. They observed Nerez addicted to drugs and neglecting Kashaya. The family attempted to improve Nerez and Kashaya’s living conditions and to convince Nerez to seek help for her drug addiction. But she refused to go into rehabilitation. Dr and Mrs Grant were reluctant to involve child welfare authorities for fear that Kashaya might be removed from her mother’s care. Instead, Dr Grant and Mrs Grant purchased a property for Nerez in Maitland Bay, a short distance from Killcare, so that they would be nearby to provide assistance as required. During this time they also covered Nerez’s living expenses and paid for her use of a motor vehicle.
Ryven more than either siblings at that time kept a close eye on Nerez at Maitland Bay. He used to drop the milk and some cigarettes up to her every morning. The Court accepts his evidence that some mornings when he called in he found Nerez passed out in a state of stupor either in a bed or on the floor surrounded by drugs.
Nerez’s move to Maitland Bay allowed Dr Grant and Mrs Grant to play an active and satisfying role in their granddaughter’s life. But it meant that they came into continuous contact with Nerez in all her different moods. Some of those moods were violent and ugly. During this period a profoundly disturbing incident occurred that framed the relationship between Nerez and Dr Grant for the rest of their lives.
The incident arose from but a simple thing. Dr and Mrs Grant took Kashaya to have her hair cut one day. When they returned home Nerez noticed the haircut and thought it was far too short. She yelled at Mrs Grant. Dr Grant tried to stop her ill-treating Mrs Grant. Nerez says that Dr Grant started punching her, but the Court does not accept that Dr Grant was doing any more than passively trying to keep Nerez from attacking Mrs Grant verbally. Nerez then reacted violently, picking up a nearby dog leash and lashing Dr Grant across the side of the face again and again with the metal clip end of the leash.
The lashing caused deep welts and open bleeding cuts right across the left hand side of Dr Grant’s face and upper neck. The attack must have been painful for Dr Grant. Ryven who was on the scene shortly afterwards, describes his father as “sitting in the chair crying”. The severity of the injuries to his face and the fact that there must have been quite a number of violent and painful strokes are quite evident from a photograph of Dr Grant taken not long afterwards. It is difficult to comprehend how a child could continue to inflict injuries on a parent in this way.
Ryven was cross-examined about the incident by Nerez, to whom he directly addressed the following:

“You came down and saw your daughter, had a haircut. You went into the house and you picked up a [dog lead] collar and you beat dad with a collar, not even the hand end, the knuckle end, and you put those welts on his face… You hit a man who’d never hit anyone in his life, who was a professional radiologist.”

Nerez falsely downplayed the incident. She said she was acting in self-defence and “I just went, whipped it away to try and get away from him” and “unfortunately [he] incurred some scratches on the face”. Nerez placed importance on her parents not taking out an apprehended violence order (“AVO”) after this. But from the severity of the injuries in the photographs and from everything that the Court knows of Dr Grant, the Court does not accept that he attacked his own daughter, Nerez. And the lack of an AVO is simply explained: Dr and Mrs Grant would endure much to avoid bringing public shame on their family.
The suddenness and the violence of this incident had predictable consequences: it made Dr and Mrs Grant deeply wary of ever provoking Nerez. Mrs Grant witnessed this incident and had to care for Dr Grant in its aftermath. From this time, she and Dr Grant were fearful of being left alone with Nerez. Cross-examined by Nerez, Ryvan vividly described the tense atmosphere that prevailed:

“I saw mum live in fear every time you’d come to the house when mum and dad were there, Kashaya go upstairs and your behaviour was abhorrent. Mum was calm. When you would turn up, she would shake and say, ‘Stay, stay. Stay here. Don’t go, Ryven’, because I’d be going back to the coast or doing something and say, ‘Stay here’, and you were always up to mischief and no good. It saddens me to see your behaviour towards our loving parents”.

This incident was the worst of many. Ryven witnessed many others over the years at different family addresses. He concluded, “It saddens me to see your behaviour towards our lovely parents.” Court accepts Ryven’s testimony that this and the other incidents ultimately resulted in Dr and Mrs Grant being “always on edge…when you [Nerez] came around.”
From her earliest introduction to the Grant family in 1986, Marguerite Grant was struck by the impact Nerez had on Mrs Grant’s well-being. The Court accepts her account:

“I witnessed the effects Nerez had on Gwynneth. When Nerez was around, Gwynneth’s whole mood and demeanour would change. She would just mumble and nod her head to Nerez. Gwynneth was very careful about what she said around Nerez. Gwynneth said, ‘I’m walking on egg shells so as not to rile Nerez’”.

Even when Nerez was not present, Mrs Grant was affected. Marguerite observed that when she would discuss Nerez with Mrs Grant, that Mrs Grant would become “visibly upset”. Marguerite said that:

“Gwynneth did not like talking about Nerez. In fact when I took my family on holidays with Gwynneth and Alan, both Gwynneth and Alan would ask that, ‘Please do not discuss her, please do not say her name out loud’”

Over the years, there were many more incidents in which Dr and Mrs Grant felt threatened by Nerez. Tansin recalls her mother telling her just how much her parents were preparing to protect themselves against Nerez’s violent unpredictability. She recounts after an incident involving a knife Mrs Grant saying, “your father has filed off the points of the kitchen knives so Nerez cannot stab us. When we know Nerez is coming we hide the knives from the kitchen”. Mrs Grant told Seth that exactly the same precautions were being taken against Nerez in the Grant household.
Marguerite Grant’s description of the family dynamic was apt: “Nerez was the family bully. Everyone in the family had to put up with her bullying and if they didn’t, Nerez would attack them in a vicious way, using verbal abuse and at times, physical abuse”.
Because he lived in the Killcare area, Ryven witnessed some of the daily insults that Dr and Mrs Grant suffered at the hands of Nerez. He describes Nerez as coming down regularly to the Killcare property, grabbing Mrs Grant’s handbag and rifling through it for money. But Nerez’s main and effective ploy to extract money from her parents was to stand outside their house and shout obscenities at Dr and Mrs Grant, saying things like, “Give me some money you pieces of shit. I’ve gotta live.” Ryven saw that the result of this public display was, unsurprisingly, deeply upsetting for Mrs Grant, who was a result would be crying, shaking and humiliated. Ryven says that Nerez tried this not only at the Killcare property but later at the McMahon’s point property as well. Court infers that Nerez kept doing this without regard to her parents dignity because she knew it was a very efficient way of extracting money from them.
The police were rarely called to these incidents. Dr and Mrs Grant did not want to escalate this conflict any further and take it outside the family if they could avoid it. Under cross-examination by Nerez, Ryven well summarised the difficult predicament his parents faced when dealing with Nerez:

“Nerez: Would you be able to tell me why the police were not called?
Ryven: Because you are their daughter, or one of their daughters, and mum and dad were forgiving and they didn’t want scenes of police coming around to the house as they had had Federal Police and police come around on the matters relating to Gary Lewis and the offences. Old people when they live in their houses, and anyone, doesn’t like scenes at their homes because neighbours look and it’s, as they say, it’s not a good look.”

Nerez was prepared to manipulate to her advantage Dr and Mrs Grant’s wishes to see their granddaughter, Kashaya. Nerez repeatedly demanded money from them, saying, “you will never see Kashaya again if you don’t give me money.” Dr and Mrs Grant gave in and gave her money. Dr Grant and Mrs Grant continued to step in to assist Kashaya.
In a sense, Nerez’s demands for money, unreasonable and threatening that they were, were the lesser of their concerns. Their main anxiety was, as Mrs Grant explained to Seth, that “Nerez is becoming increasingly physically threatening and violent.”

Kashaya Goes to School, and Nerez moves to Sydney – the early 1990s

When Kashaya was ready to go to school Nerez sold the house at Maitland Bay, kept the proceeds of sale and moved back to a flat in Rose Bay owned by Dr Markell. Dr and Mrs Grant enrolled Kashaya at a private girls’ school in the eastern suburbs of Sydney and paid her fees and ancillary education expenses from her earliest school years until she left. Perhaps to make up for some of the disadvantages of her childhood with Nerez, Dr and Mrs Grant were very generous to Kashaya. Dr Grant attended all Kashaya’s school events and all father-daughter occasions.
Nerez was still taking drugs in the late 1980s and early 1990s. Dr and Mrs Grant reported to Seth, and the Court accepts as fact, that when they visited Nerez at the Rose Bay flat:

“We found her in a drug induced stupor with cocaine and heroin on the coffee table. Kashaya we found wandering around the flat with the soiled nappy, with access to dangerous drugs, and with an open back door above a fourth floor staircase.”

Nerez was often driving from Killcare to Sydney in this period. She could be as unpredictable in a car as anywhere else. On one occasion she was driving Dr and Mrs Grant from Killcare to Sydney, when she flew into a rage. She pulled over, forced them out of the car, left them by the roadside and drove off. Sometime later she returned to pick them up.

Dr Grant and Mrs Grant Retire to Sydney – 1995

Dr Grant retired from private practice in 1990. In 1995, he and Mrs Grant decided to move to Sydney. They purchased a residence in McMahon's Point in Sydney (“the McMahon's Point property"). They lived there together for the next 15 years, until 2011. They did not sell the Killcare property when they moved but continued to use it from time to time.
The Grants maintained their close connections with Killcare. Mrs Grant remained a member of the Killcare Music Club. Dr and Mrs Grant continued their friendships with club members, such as Mr Isaac and Mrs Isaac. Over the years Mr Isaac could not but help pick up the tension within the Grant family. The relationship between the Grants the Isaacs was such that the Grants knew that they could confide much in their close friends. Mr Isaacs recalls Mrs Grant telling him, and the Court accepts as true, that, “Nerez is giving me a hard time, intimidating me and demanding money to finance her excessive habits”. And in their later years, Mrs Grant shared even more of this situation with their trusted friends, the Isaacs, saying to them, “Nerez is exploiting the situation and her behaviour necessitated me to cut Nerez out of my will”.
In 1997, Mrs Grant generously took Kashaya on a trip with her to the USA and Europe. The evidence strongly suggests that Dr Grant and Mrs Grant generously stepped in to ensure that their granddaughter did not miss out on many opportunities that Nerez could not provide Kashaya. Not all the other grandchildren receive the same generosity, which caused a degree of aggravation to Tansin and Seth.

Nerez Moves Residences in Sydney - 2000

Nerez began to have trouble on other fronts. By 2000, she was resisting the determined efforts of her former husband, Dr Markell, to evict her from his flat in Rose Bay that she was occupying. This became a very untidy dispute resulting in breaches of the peace to which the police were called. Nerez was eventually evicted from the Rose Bay flat in approximately 2004.
When Nerez was evicted from the Rose Bay flat she moved to an isolated property in the Lower Portland District near Wiseman’s Ferry on the Hawkesbury River. She took a lease or license of this property from a Mrs Hall which led to an acrimonious dispute in which Mrs Hall sought to evict her. In response, Nerez threatened an injunction in the Equity Division of this Court restraining Mrs Hall from seeking to evict her.
Is not necessary to go to the rights or wrongs of this dispute other than to observe that Nerez was prone to disputation with many people other than Dr and Mrs Grant, and in this case, with the owners of properties that she occupied. Nerez remained in this Lower Portland property until about 2013.
After Dr and Mrs Grant moved to Sydney they made the Killcare property available to their children to use from time to time. But Nerez made it difficult for Tansin to use the property on a regular basis. Mrs Grant told Seth and the Court accepts as accurate that:

“Nerez vandalised our house Killcare and tried to prevent Tansin and her family from having a holiday there. Nerez smashed glass and left it on the floor so that Tansin’s two young children would cut their feet. Nerez also took the mattresses out of the house and hosed them with water so that Tansin and her family had nowhere to sleep.”

In 2008, Dr and Mrs Grant paid $50,000 for Kashaya’s wedding to Mr Evan Williams. Dr Grant walked Kashaya down the aisle instead of her father. The significant cost of this wedding to Dr Grant and Mrs Grant was a cause of considerable friction in the family, and Mrs Grant was not pleased that Dr Grant had been quite so generous with Kashaya.

A Pattern in Nerez’s Demands Emerges - 2008 to 2010

By about 2008, a clear pattern was emerging in Nerez’s constant requests for money from her parents. She had divined that Dr Grant was far more amenable to these requests than Mrs Grant. Why this was so is unclear. Perhaps it was his advancing age. Perhaps it was fear of losing contact with Kashaya with whom he was very close: loss of contact with her being a threat Nerez had used in the past. Perhaps it was related to the violence that Nerez displayed towards him. Perhaps it was because he felt particularly sensitive about ensuring Kashaya was not disadvantaged because of her upbringing with Nerez.
Whatever it was, the precise reason is difficult to discern. But the Court infers that all of these factors were in play. But a ready willingness to give money to Nerez and Kashaya became a marked weakness in Dr Grant. And Nerez was ever-alert to her parents’ weaknesses and ever-ready to make use of them to her advantage. And she did.
Many of the witnesses the Court accepts attest to a regular pattern of conduct in which Nerez (later accompanied by Kashaya) would come to the McMahon’s point property, take Dr Grant aside into his study, lock the study door, and have Dr Grant sign cheques in their favour. Nerez (and later with Kashaya) would also take Dr Grant to ATMs to withdraw money and use his credit cards. This pattern was clearly established by 2008 – 2009.
This pattern of conduct forcibly excluded Mrs Grant from Dr Grant’s financial decision-making and financial confidences. Mrs Grant was consulted less and less on her husband’s financial decisions. Naturally this caused Mrs Grant anxiety, disappointment and frustration with her husband. She complained to him.
And she had good cause. Dr Grant was giving his credit cards to Nerez and Kashaya to use even when he was not present. This upset Mrs Grant and added to the friction between the couple. She complained to Seth and Tansin the Dr Grant was “being coerced and manipulated” by Nerez and Kashaya. Not surprisingly, this aggravated Dr Grant, who started to display uncharacteristic rudeness to his wife. Tansin recalls Mrs Grant saying to her that, when she questioned Dr Grant about how much money he was giving to Kashaya, Dr Grant told her in the presence of Kashaya that she should “shut up”.
The result of these targeted requests for money was that Dr Grant was funding a significant portion of both Nerez and Kashaya’s lifestyles. The credit card statements from this period show that payments being made on Dr Grant’s account ranged from baby supplies, and car insurance payments, to large cash payments, an Audi Q5, and house renovations for Kashaya’s McMasters Beach property.
All of this perplexed Mrs Grant. She felt that Dr Grant was slipping away from her. She repeatedly confided in Seth at this time, “Nerez is taking over and I don’t know how to keep her away.” That neatly encapsulated the problem. Mrs Grant was powerless to constrain Nerez’s influence over Dr Grant, which Nerez was using to her financial advantage.
It is not at all surprising that this led to increased tension between Nerez and some of the other the Grant siblings, who perceived that Nerez and Kashaya were being treated too generously and whose own children were not receiving anything like the same financial support as Kashaya. Nerez cross-examined Tansin and suggested to her that she received financial assistance from Mrs Grant for the payment of school fees for her children. But the Court accepts Tansin’s response that she received no such assistance during Mrs Grant’s lifetime, only benefiting on that account in her will.
In mid-2008, this spilled over into a physical altercation between Tansin and Nerez, resulting in the police being called. Nerez says that Tansin attacked her at the McMahon’s point property. Tansin says that Nerez was aggressive towards her. There are contradictory claims about AVOs being taken out as a result of this incident. It is difficult to resolve the contest about what happened with this incident other than to say that given what the Court has seen of both Nerez and Tansin, aggression on Nerez’s part is far more likely. Nerez argued that Tansin was the aggressor and that she (Tansin) had abused drugs and could ill-treat Nerez. Tansin candidly and creditably conceded in evidence that she had taken drugs at one stage in her life. But the Court accepts this was a limited period and that she has been drug free for a long time. The Court does not accept that Tansin has ever done anything more than defend herself from Nerez.

Mrs Grant confided in Tansin on numerous occasions about her continuing distress and sense of helplessness in the face of Dr Grant continually giving in to Nerez and Kashaya’s demands for money. For example, on a shopping trip with her mother in August 2010, Mrs Grant said to Tansin, “Nerez has been phoning your dad at all hours of the day. I can hear him whispering on the phone to her. I know she must be asking for money”. And on 20 October at a dinner, Mrs Grant said to Tansin, “I cannot control your father. He is so nasty to me. Nerez has been around getting money again”. The Court accepts that this is what was happening.
The evidence of several other non-family members supports the inference that Nerez and Kashaya would isolate Dr Grant from Mrs Grant and press their demands for money upon him. Ms Saxby provided cleaning services to Dr Grant and Mrs Grant once a week. Over her years of trusted service, Mrs Grant came to confide in her. Ms Saxby told the Court that Mrs Grant was “nervous” around Nerez and Kashaya. When the Court asked Ms Saxby to clarify what she meant by this, will Ms Saxby said:

“She told me that she felt bullied, she felt left out of the family business, they used to lock themselves away with Alan Grant upstairs, she didn’t seem to know much about what was going on, she used to say that he’d write continuous cheques for them, monetary-wise. I’m only telling you what she told me, and she was nervous. She was a different person when they were in the house.”

Ms Saxby also confirmed that Nerez’s pressure was sometimes accompanied by aggressive conduct that affected Mrs Grant badly. She recalled a specific incident that she had observed when Nerez came by the McMahon’s Point property one day and upset Mrs Grant. Ms Saxby said:

“There were doors slammed, I’m not an eavesdropper, so I wasn’t listening in on the conversation. She’d go to another part of the house, shouting, screaming, doors slamming and then Gwynneth was terribly upset”.

Ms Saxby was an incidental but an astute observer of family dynamics. Ms Saxby observed that family tension got to the point that Mrs Grant was a “little bit confused about what was going on with her family”. At one point Kashaya put the following direct question to Ms Saxby:

“Ms Saxby, can you recall one incident where my grandmother was happy when my mother was present?”

Ms Saxby gave the answer “No, not particularly”. In contrast Ms Saxby attested to the good relationship between Tansin and her mother. Ms Saxby explained, that “Mrs Grant’s eyes would light up when Tansin paid her regular visits for morning tea and shopping expeditions”. Ms Saxby confirmed that Tansin was “always visiting” in the 12 years that she worked for the family. In contrast, Ms Saxby described Nerez’s visits as “on and off for years, once a month, I really don’t recall the exact amount of times”.
Ms Saxby said that when Mrs Grant saw Seth, “She was delighted to see him”. Ms Saxby explained that Mrs Grant “told me how much she missed him [Seth] and she valued his visits and she loved to catch up with her granddaughters and Seth and his wife”. And when Seth was there Ms Saxby described his attitude to her as “extremely caring”. And it was quite obvious to Ms Saxby that the relationship on his side was “very loving and caring”.

Mrs Grant makes a Will – May 2010

In the last six years of her life, Mrs Grant made five wills. These wills represent a struggle between what she really wanted and the pressure to which she had at times succumbed under the influence of Nerez, or Dr Grant who was in turn pressured by Nerez.
Nerez says that it was evident by 2010 that Mrs Grant was suffering early stage dementia. The Court does not accept this. Nerez’s opinion is contradicted by evidence of both Seth and Tansin and is generally incompatible with the evidence of Warwick Miller, Marguerite Grant, Ms Nolan, Ms Saxby and Ms Shaw. It is also incompatible with her being assessed by a number of solicitors up to 2012 as capable of making a will.
These five wills were made in the following months: May 2010, January 2011, February 2011, June 2011, and the final one in May 2012.
Mrs Grant made the first of these wills on 20 May 2010, in which she appointed Miles and Tansin as her executors and trustees. Mrs Grant gifted to Dr Grant all items held within their McMahon’s Point property and all proceeds of any joint accounts held by the couple. She also gifted her violins to Tansin. From her residuary estate, Seth, Ryven, Miles and Tansin were to receive a 22 percent share. Nerez was to receive a 12 percent share. The reason for this lesser share for Nerez was explained by Mrs Grant in the May 2010 will in terms that are wholly consistent with the evidence, as follows:

“I DECLARE that I have given my daughter NEREZ GWYNNETH GRANT a share of my estate which is less than that of her siblings because of certain sums already advanced by me and/or my husband to the said NEREZ GWYNNETH GRANT during my lifetime and the lifetime of my husband out of our matrimonial assets and/or income”.

Nerez raised suspicions about Mrs Grant’s 2010 will. She was suspicious that it had not been made with the family solicitor, Patrick Donnellan of Gosford, who had responsibility for previous family will making. But in the Court’s view there was nothing suspicious about the change from Mr Patrick Donnellan, to Mr John Quinn, a solicitor known to Warwick Miller.
The course of events is well explained by Warwick Miller. In about May 2010 Mrs Grant’s cousin, Teresa Sienkiewicz came to Australia. Mrs Grant had great confidence in Mrs Sienkiewicz in part because of her accounting and management experience. The Court accepts the evidence of Warwick Miller, who explained how influential Ms Sienkiewicz was in Mrs Grant’s decision-making on the issue of making her May 2010 will:

“In I think about May 2010 Gwynneth’s cousin, Teresa [Sienkiewicz], who at that stage I think was the head of the superannuation board in England, is an accountant, a very fine accountant was coming to Australia and when Teresa arrived her, she and Gwynneth got together because Gwynneth wanted to make a will that expressed her wishes and not those of her husband’s because she didn’t agree with some of her husband’s decisions and she openly talked about that to myself. When Teresa got here from England, she asked me if we could use a different solicitor because she thought that Patrick Donnellan was tied to Alan and whatever was said to Patrick would get back to Alan and she asked me did I have a solicitor and I said, ‘Yes, a man of sincerity and integrity I believe’ and they contacted and had a meeting with John to do this work.”

In the Court’s view this is a perfectly unremarkable explanation for why Mr Quinn was engaged. He was a reliable solicitor in whom Warwick Miller had confidence. None of the evidence from Tansin, from Warwick Miller or from Mr Quinn gives any support to the suggestion that Mrs Grant was receiving from Mr Quinn anything other than dispassionate, disinterested advice in her own best interests.
By the second half of 2010, Mrs Grant was complaining regularly to Tansin about Nerez coming to the McMahon’s Point property and demanding money from Dr Grant. Tansin saw a lot of her mother. She kept an informal diary of her mother’s growing concerns, from which she was able to give exact dates of some of her mother’s statements to her.
Mrs Grant’s theme to Tansin was constant. On 26 June 2010, she said, “Nerez is always asking me for cash. I know your dad is continually giving her money.” On 3 August 2010 she said, “Nerez has been finding your dad at all hours of the day. I can hear him whispering on the phone to her, I know she must be asking for money.” And on 20 October 2010 she said, “I cannot control your father. He is so nasty to me. Nerez has been around getting money again.”
Seth and Marguerite would commonly make one or several visits back to Australia near or over the Christmas period. They returned to Australia in October/November 2010. Tansin had passed on to Seth much of what her mother had been saying to her. Seth talked to his mother about these events and family finances. He investigated and discovered that Mrs Grant was receiving speeding fines which could only apparently be explained by Nerez using Mrs Grant’s driver’s license as a form of identity and forging her signature. He also discovered that large sums were going out of their bank accounts in cash cheques.
Nerez was quite capable of forging her parents’ signatures and using their identity. For example Ryven has seen Nerez forge Dr Grant’s signature. And she has bragged to him, “Dad’s signature is an easy signature to do. I can even forge your signature Ryven. I have a copy of everyone’s signatures.”
Mrs Grant told Seth that “Nerez has increased her abuse of me and I am very concerned that your father is vulnerable and cannot defend or protect me from Nerez.” The Court infers this abuse took place as Mrs Grant described it. Mrs Grant’s statement is consistent with other direct evidence and the Court’s assessment of Nerez. Looked at objectively, neither Dr Grant nor Mrs Grant were in any position to withstand strong pressure from Nerez. By the end of 2010 Dr Grant was aged 90 years, and Mrs Grant was aged 80 years. They could not be expected to have the resilience and personal resources to withstand Nerez’s constant badgering.
The pressure was having physical consequences for Mrs Grant. Dr Grant told Seth that Mrs Grant was suffering “mysterious collapses” and had been taken by ambulance on several occasions to North Shore Hospital. Medical investigation had not found any plausible explanation for these collapses. But the collapses had coincided with Nerez’s visits to the McMahon’s Point property. As will be seen from 2011, when Mrs Grant went the UK with Seth and later lived with Tansin and Warwick Miller, these collapses stopped.
Seth staying at McMahon’s Point deterred Nerez from coming around. But as soon as he returned to the UK Nerez’s visits resumed. Mrs Grant explained to Tansin what was happening:

“As soon as Seth left the country they have been here again giving me no privacy. Tansin they really let me know when they are coming. Kashaya has been here again taking dad out. I do not know where they go, your father and to show refused to tell me.”

Throughout this period, Nerez was applying pressure to Dr Grant to sell another family property, some land at Raworth.

Sale of the Raworth Property – November 2010

Dr Grant and Mrs Grant had acquired a range of property through astute investments over the years. Dr Grant had to sell capital assets to fund the making of his regular money gifts to Nerez and Kashaya. By the second half of 2010, one of the assets remaining in the family was the land at Raworth, a suburb of East Maitland adjacent to Tenambit, where the family had lived in the 1960s and 1970s. Dr and Mrs Grant jointly owned the Raworth land.
In May 2010, in the course of expressing her disquiet about the amount of money Dr Grant was giving Nerez and Kashaya, Mrs Grant had confided in her daughter, Tansin, about Dr Grant:

“I felt threatened by him. So I do not know how much he is giving her [Nerez] but he keeps telling me that he wants to sell the Raworth land because we need money. I do not want to sell the Raworth land. We do not need all that money. At the moment we are okay.”

Mrs Grant preferred to leave the family assets in the form of real estate so Nerez could not access them. But Nerez was applying pressure to Dr Grant to sell the Raworth land in order to realise more cash. This pressure was causing Dr Grant great distress. He felt so driven by the pressure that he turned to Tansin. In November 2010 he telephoned her from Killcare in a very anguished state, saying:

“No one will support me, Tansin. Will you help me? I have accepted an offer on the Raworth land for 1.5 million dollars but another offer has come in from 1.8 million with conditions. Jane Paskin, Kashaya, and Nerez are telling me to go with the offer with conditions and I don’t want to for an extra $300,000. They were so angry that I had accepted the 1.5 million offer.”

Jane Paskin is married to Miles. The evidence does not support an inference that she was involved in pressurising Dr Grant in any way, although her name is mentioned in this conversation. The sale of property under pressure from Nerez would mean Dr Grant would gain access to his half share of the proceeds of sale of the Raworth property, being over $700,000 in liquid funds. It was sold in February 2011.
Nerez developed a more complex set of allegations about the sale of the Raworth property against both Seth and Tansin.
Nerez says that Tansin and Warwick Miller convinced Dr and Mrs Grant to sell the property for $1.6 million, so that each of them received the proceeds of approximately $782,000 at settlement in January 2011. Nerez infers that Tansin later used this money to develop vacant land that she purchased at Dudley in Newcastle in March 2010.
Nerez says that when the Raworth property was sold Seth was in Sydney and he asked Dr Grant to give him the $782,000 and let him "mind it" for his father. She says this based upon notes allegedly written by Dr Grant. Her case appears to be that Seth had a falling out with his father because of his father's refusal to hand over the proceeds of the sale of this property. Nerez says that following Dr Grant's refusal to hand over this money that Seth took Mrs Grant over to the home of Warwick Miller and Tansin in Kirribilli.
These allegations are speculative and are not grounded in evidence that the Court accepts. Tansin and Warwick Miller were not the moving parties for the sale of the Raworth property and there is no basis to Nerez’s contention of this falling out between Seth and Dr Grant.

Disturbing Events at Killcare - January 2011

In January 2011, Dr Grant and Mrs Grant were living at the Killcare property for about four weeks. Nerez was there as well. It was by all accounts a strange month. Tansin and Seth had obstacles placed in the way of contacting their parents. When Tansin called the residence she was told to “fuck off” by Nerez. Ryven had been operating his business out of the Killcare property, but Nerez evicted him from the home during this period. Seth tried to call from the UK but found it impossible to get through.
Ryven who was residing locally, witnessed the full force of Nerez’s demands on her parents in an incident that he remembers well and in detail which the Court accepts as accurate. Ryven had on numerous occasions before January 2011 seen Nerez, as he described it, “ranting, raving, screaming, being threatening and sometimes grabbing mum”, after which she confessed to him, “I am scared for my life Ryven.” But even among such incidents, the events he witnessed on 18 January 2011 were remarkable.
He received a telephone call that day from Steve Hanson who had been doing some plumbing work at the Killcare property. Acting on the phone call he went around to the Killcare property where he heard Nerez shouting loudly. When he arrived Mrs Grant was standing on the corner of the room crying Dr Grant was sitting down. Mr Hanson was standing in the middle of the room. Nerez was very angry with both her parents. Ryven tried to get Nerez to leave the scene but that resulted in Nerez shouting the following angry exchange with him and with her parents which the Court sets out in full, so her capacity for abusive and jarring verbal violence can be properly understood.

Ryven:    “Nerez, you’d better leave now.”
Nerez:    “Why did the stupid old cunts [referring to her parents] get that fucking Hanson here?” What the fuck from with [these] fucking idiots.”
Nerez:   [to her parents] “All I want is my 20%. You’d better fucking give it to me. I want an early inheritance.”
Ryven:   “Nerez, stop it, just leave.”
Nerez:   “Fuck off, settle down, I have had enough of these two fucking old cunts.”
Nerez:   [with her face close to Mrs Grant] “Do what you were told you fucking old cunt.”
Ryven:    “Nerez, stop what you are doing now, you are mad. I am going to call the police.”
Nerez:   “Good call the fucking police. I don’t give a fuck. Fuck you and fuck these old cunts.”

At this point Steve Hanson went downstairs and Ryven telephoned the police. He made his parents a cup of tea and tried to calm them down. He took Mrs Grant for a walk but she was visibly upset for half an hour afterwards.
Ryven recounts, and the Court accepts, all his evidence that both before and after this incident Mrs Grant said to him, “Nerez destroyed my life.” And again, “Nerez gets none of my estate. She has taken your dad’s money and his superannuation.”
Nerez’s verbal violence towards her parents was matched by her threats of physical violence. Nerez had access to a shot gun. It was thought to belong to Gary Lewis. Nerez had pointed the shot gun at Ryven, who identified it as a sawn off pump action shotgun. Nerez threatened her mother, “I have a gun and I will do anything I fucking want.”
The day following this incident, and possibly prompted by it, Dr Grant and Mrs Grant appointed Seth and Miles as their attorneys pursuant to General Powers of Attorney at the offices of their solicitor, Mr Donnellan. But Nerez had considerable influence over both Mrs Grant and Dr Grant throughout January 2011 as Ryven, Seth and Tansin were kept at bay.
Mrs Grant went with Dr Grant to the offices of the Grant family solicitor, Mr Donellan, on 27 January 2011. This will appointed Dr Grant as her executor and trustee, and left him the entirety of her estate. In the event that Dr Grant predeceased her, Miles was to be executor and trustee. Mrs Grant gifted her the Johnston violin to an individual not identified in these proceedings. Tansin was gifted all other violins, a grand piano and her engagement and wedding rings. Tansin and Miles were to be gifted joint possession of Dr Grant’s boat, “Windermere”, were she to be in possession of it at the time of her death. Kashaya was gifted a property in Elizabeth Bay. The residuary estate was then to be divided equally between Nerez, Seth, Ryven, Miles, Tansin, and her grandchildren, with the exception of Kashaya. Patrick Donnellan and (most surprisingly) Dr Grant (a beneficiary) witnessed the execution of this will.
What was the haste for Mrs Grant to make the 27 January 2011 will? Mrs Grant later explained to Tansin that Dr Grant was not happy with her May 2010 will, as he was under the impression that he would be left with nothing from her estate. He appears to have misunderstood his entitlement to their many jointly held assets, were she to predecease him. Mrs Grant confided in Tansin that she made the 27 January 2011 will just “to keep the peace”.

Seth returns to Australia and Mrs Grant moves to Tansin’s – February 2011

Seth returned to Australia on 31 January 2011. From the airport he travelled directly to the McMahon’s Point property. His parents were not home but were later dropped off by Kashaya, who had driven them back from the Killcare property. Mrs Grant suggested that she and Seth go for a walk. As they sat on a park bench, Mrs Grant broke down in tears. The events of the last few weeks were too much for her. Mrs Grant told Seth:

“Nerez held me captive for the past few weeks at the Killcare house and prevented me from returning to Sydney. Nerez shouted and screamed at me and threatened me with physical violence. Nerez threatened to kill me…Nerez has forced me to change my will. She took me in to see Mr Patrick Donnellan the solicitor to do so”.

She also stated, “Nerez is trying to kill me… Nerez is writing and making me change these wills and making Alan change these wills and she’s been threatening us and I want to kill myself and I’ve got to get away from this”.

Mrs Grant also asked Seth to copy documents contained in a bag that Dr Grant had brought back from the Killcare property. The material he copied was revealing. It included: several draft written instructions from Nerez to Mr Patrick Donellan on drafting wills and powers of attorney for Dr Grant; instructions on the division of estate assets to favour Kashaya; and instructions to prevent the distribution of medical records by Mrs Grant’s general practitioner, among other documents.

“Mr Hill:   But you can do an exact overlay, can you, of the word “Alan” in [the 25 March 2011 letter] with the word “Alan” in [the 10 April 2016 letter], can you?
Ms Holt:   Yes, you can.
Mr Hill:      Is the “A” and the “I” exactly the same height, are they?
Ms Holt:   Yes. It’s, for all intents and purposes, exactly the same, even to the point of the placement of the full stop at the end, and that would be something, you know, I would – you know, statistically the chances of getting something like a full stop in exactly the same position every time you write something, I think –
Mr Hill:   It’s pretty low, I assume. Is it also consistent with your conclusions that [the 25 March 2011 letter] might have been a genuine letter and that what happened was that the “Alan” was copy pasted onto the document in [the 10 April 2016 letter]?
Ms Holt:   Yes.”

Ms Holt also had regard to the degree of degradation of Dr Grant’s signature over time by examining samples of his writing over several years. She concluded that “the particular way he’s written ‘Alan’ [in the questioned letter] is much more consistent with how he used to write in 2011 than as he’s getting older”.
Neither Nerez nor Kashaya questioned Ms Holt’s qualifications and report. No evidence to contradict her report or findings was tendered. When the defence put to Ms Holt that it might be ”possible” that Dr Grant signed the document, Ms Holt replied that the possibility was “incredibly slim”.
The Court accepts Ms Holt’s opinion. On the evidence provided, it is highly likely that Dr Grant’s signature on the 10 April 2016 letter, upon which Nerez and Kashaya relies, has been transposed from his 25 March 2011 letter to Mrs Grant and then photocopied into a single document. It is for this reason that no “original” is available, because the “original” is a composite of two documents.
Nerez is the only individual who claims to have had the original of the document. She strongly denies any manipulation of her father’s signature to create a falsely fabricated document. She suggests that the original may have been “thrown out” at the start of the proceedings. But the Court does not accept her explanation. Moreover, it is strange that the original would not have been referred to by Nerez in her own letter to the Office of Trustee and Guardian on 12 July 2018 in a context where she could have been expected to rely upon it in her defence. This letter cannot be relied upon as evidence of Dr Grant’s wishes or instructions.
Nerez also claims that Dr Grant was the author of further documents expressing his wishes for the Killcare property to be transferred to Kashaya and for Nerez to live in it. In outlining her defence at trial, Nerez argued her control of her father’s affairs was at all times proper and appropriate:

“It is what my father wanted. He had verbally said it numerous times. I even had very small notes from him written that he would – I can’t find those. I found a copy of a note that he said he wanted that. So, that was his wishes: to have that property transferred to Kashaya and for me to live there. And to quote his words, ‘So that you can have a roof over your heads.’ And he full well knew that my other brothers and sister had a lot of property.
…
So my father has always been concerned and that would have been – to have a roof over your head was a great concern for my father”.

But neither Nerez nor Kashaya ever produced these “small notes” and the Court does not accept that they ever existed. In summary, there is no evidentiary support for the defendants’ contention that Dr Grant wished to give the Killcare property to Kashaya for the benefit of her and her mother.
Kashaya advanced another argument to justify the gift of the Killcare property to her: that she was Dr Grant’s favourite grandchild, and that this was a basis upon which Dr Grant provided her significant sums of money and the Killcare property. But the Court accepts that Dr Grant and Mrs Grant were involved in all their grandchildren’s lives. That Dr and Mrs Grant intervened to provide Kashaya opportunities that Mr Lewis and Nerez could not provide her, is not a firm basis to suggest Kashaya was the favoured grandchildren to whom Dr Grant would leave the Killcare property.

The Claim for the Funds Transferred

Before the particular transactions in the estate’s claim are considered, Nerez and Kashaya’s wider case should be noted. They both argue that cash withdrawals made by them from Dr Grant’s bank accounts were consistent with his express wishes. And Nerez relies upon a promissory note for $400,000 that Dr Grant allegedly gave her, to justify some of their withdrawals. Dr Grant lived in various locations under the care of Nerez from 22 February 2011 until 4 October 2017. An analysis of the financial transactions of this particular period is possible and it assists analysis of Nerez’s case.
Quite apart from the Court disbelieving Nerez’s account of Dr Grant’s wishing to make gifts to her, objectively speaking, it is difficult to accept that the amounts actually transferred from Dr Grant’s accounts during this period, 22 February 2011 until 4 October 2017, could be justified on the grounds Nerez has stated. The probable amount of withdrawals for this period is well beyond anything that could possibly be related to Dr Grant’s care and is so great that it depleted his estate to the point of placing him in penury.
This is demonstrated by an analysis of Dr Grant’s bank transactions for the period, 11 February 2011 until 4 October 2017 conducted on behalf of the estate. During this period Dr Grant held bank accounts with the CBA and the St George bank. The analysis reveals that during this period, a total of $5,207,635 was received into all of Dr Grant’s bank accounts, the substantial amount of these deposits being related to the sale of Dr Grant’s interests in real estate with Mrs Grant.
But the analysis also shows that withdrawals (over $1,000) during this period total $5,734,029. Some allowance must be made for the re-crediting of monies taken from the accounts for the purpose of being placed on interest-bearing deposit. Even allowing for this and subtracting the amount of $1,207,635 from the total amount received into the accounts, the analysis still leaves the amount of freshly injected capital into the accounts from Dr Grant’s real estate sales and other income at approximately $4 million.
Yet the total nursing home fees paid by Dr Grant during this period were only $119,823.47, being less than 3% of the withdrawals of $4 million. And on 4 October 2017, when Seth took over his care, Dr Grant at the age of 96, was left with a total of $20,769 in his two accounts and the Killcare property worth about $900,000 had just been transferred from him to Kashaya. He was unable to pay his ongoing nursing home fees from his remaining resources and had no prospect of paying a deposit at the Montana Nursing Home.
The analysis also reveals that at least $100,000 of the withdrawals were transferred directly to Nerez, and at least $373,703.38 directly to Kashaya, Kashaya and her husband, Evan Williams, or Kashaya’s event management and floristry business, Kashaya & Co. While Dr Grant was in retirement homes, the bank statements indicate that multiple purchases occurred that could not possibly have been for Dr Grant’s benefit. These were purchases at makeup stores, toy stores, baby stores, a resort in the Blue Mountains and grocery stores in Sydney’s Eastern Suburbs and the Sydney CBD were made. And two Volkswagen Polo vehicles were also purchased on or around 15 July 2013 for $21,000 each. And while Dr Grant was in nursing homes on the Central Coast, there were many cash withdrawals made from his bank accounts from ATMs in Bondi, Bondi Beach, Rose Bay, Haymarket and Alexandria. Nerez could only give a loosely speculative account of where she had spent the money she obtained from her father. It was certainly not obvious from anything she said that she spent the money for his benefit and, given her character and her readiness to put herself first, that was quite unlikely. The analysis undertaken in Dr Grant’s accounts was considerably more detailed but these examples suffice to show what it reveals.
Now the Court turns to the two particular money transactions the subject of the estate’s claim. Despite the years of the first and second defendant’s misuse of Dr Grant’s funds, the estate took a practical course to reduce the issues for determination and decided to pursue only the claim for the sum of $100,000 transferred by electronic funds transfer to Nerez on 4 October 2017 and the sum of $34,700 paid by way of bank cheque to the Office of State Revenue (“OSR”) on 4 October 2017.
Before these events, on 30 September 2017, Dr Grant had three accounts with St George Bank, which respectively contained the sum of $1,215.73, the sum of $215,125.25 and the last was in a debit (-$644.01).
The transfer of the $100,000 occurred at 12:23PM that day. Seth picked up Dr Grant from Wyong Aged Care between about 10 and 11 AM that day. Nerez has admitted she was responsible for making each of these transfers. The sum of $100,000 was transferred into a bank account and Nerez’s name. The transfer occurred after Nerez discovered that her power of attorney had been revoked from personnel at Wyong Aged Care. The bank cheque was purchased by Nerez with funds debited to the same account at a transaction which probably occurred at approximately the same time, that is about 12:23PM. On the same day, Nerez also sent $60,000 to Kashaya.

Analysis – Liability for Breach of Fiduciary Duty

The estate argues that Nerez, in breach of her fiduciary duties to Dr Grant, procured the transfer of the Killcare property to Kashaya and to benefit herself through the acquisition of a life estate in the property. The estate argues that Kashaya, although not a fiduciary herself, agreed in a dishonest and fraudulent scheme with Nerez to take a transfer of the property by Nerez’s misuse of the power of attorney.
Nerez and Kashaya were acting for themselves and their submissions did not really get to grips with the true legal issues behind the allegations of breach of fiduciary duty and participation in that breach. So the Court will analyse whether the estate has made out its case on the findings the Court has made on the contested issues of fact.
Nerez’s Fiduciary Duty. Nerez was in a fiduciary position with respect to Dr Grant and she owed him fiduciary duties in her use of the power of attorney granted by him to her. The Court’s findings in the factual narrative show that she was undoubtedly in a relationship of trust and confidence with Dr Grant. She had agreed to act for and on his behalf and in his interests in the exercise of the powers and discretions under the power of attorney granted to her and she had a special opportunity, by reason of her powers and discretions, to act to Dr Grant’s detriment and he was accordingly vulnerable to abuse by her of that position: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; (1984) 55 ALR 417; (1984) 58 ALJR 587; [1984] HCA 64 at 96 – 97 per Mason J.
And Nerez also had a special opportunity to exercise her powers under the power of attorney to Dr Grant’s detriment. As Dr Grant’s enduring guardian, Nerez had control over his person and could make decisions about his accommodation. She utilised this power frequently in the years 2013 to 2017 to move him between nursing homes to prevent other family members having contact with him. The regularity of those moves is best explained on that basis. And apart from Mr Isaac’s courageous adventure to find Dr Grant, Nerez’s conduct isolating him was generally successful. Nerez had kept him away from Seth, Tansin and Ryven between 2010 and 2017. Dr Grant had nowhere to turn for legal advice or emotional support. And in his frail state in his late 90s he was in no position to find independent sources of advice himself.
And Nerez’s enduring power of attorney was not just a legal construct. Nerez and Kashaya had long taken actual control of his finances, because of his special susceptibility to their influence. Nerez used both her enduring guardianship and her enduring power of attorney in tandem against her principal, her father. Once she had accommodated him away from other family members who might interfere with her control, she was free to use his bank account as she pleased, and she did. The Court infers that the money transfers the subject of these proceedings were effected without any input from him.
That this control added to his vulnerability and was not in his best interests can be inferred from a number of factors. Nerez kept him incommunicado from his other children. Nerez continued to expend his liquid assets substantially on herself and Kashaya rather than for his own benefit. Nerez did not volunteer to account to any other family member for her transactions on Dr Grant’s accounts and did not disclose the transactions questioned in these proceedings to any other family member before they occurred.
On top of that, Nerez had gained complete ascendancy over her father. She did this by years of daily harassment and demands for money which pushed both Dr and Mrs Grant into a state of uncertainty. Between 2013 and 2017, Dr Grant was sufficiently enfeebled by age, and had reduced intellectual functioning that asserting his own separate interests against Nerez in this period was beyond both his capacity and his fortitude and Nerez well knew that.
Nerez’s Breach of Fiduciary Duty. It was a breach on Nerez’s part to use the power of attorney to execute a transfer of the Killcare property to Kashaya. Nerez knew that the Killcare property was Dr Grant’s last substantial asset, the deprivation of which would leave him without any means of support for his future medical care and accommodation and that the transaction was therefore grossly improvident and could never be justified as in his interests. She knew this from her knowledge and use of Dr Grant’s bank accounts and from the amount of money that she had already taken from Dr Grant over the years. She knew that Dr Grant was wholly dependent upon her and was in no position to stop her using the power of attorney and indeed that he did not know that she was using it to transfer the Killcare property (there is no accepted evidence that he had knowledge of it). She knew that as a fiduciary she was dealing with her principal, Dr Grant and he did not have independent legal advice in a transaction which was plainly for her benefit (through the lease that she would take of the Killcare property from Kashaya).
Nerez attracts liability for the transfer of the $100,000 on 4 October 2017 to herself and for her application of the $34,700 to the OSR the same day for stamp duty on the same basis. Indeed Dr Grant could not have known about these transactions because they took place when he was in transit from the Wyong aged care facility to Montana on 4 October 2017. She appears to have dissipated the $100,000. Nerez was in breach of her fiduciary duty for using her power of attorney to affect these transfers and should pay equitable compensation for her conduct.
Categorising Nerez and Kashaya’s Liability. The estate argued the case on the basis that Nerez was liable to the estate under the “first limb” of Barnes v Addy (1874) LR 9 Ch App 244; (1874) 43 LJ Ch 513; (1874) 30 LT 4; (1874) 22 WR 505 as a recipient of property procured in breach of fiduciary duty and that Kashaya was liable to the estate under the “second limb” of Barnes v Addy, as a person knowingly involved in a dishonest and fraudulent scheme involving the breach of fiduciary duty.
But establishing the liability of Nerez and Kashaya is probably easier than this when their true roles are examined in light of the detailed pleadings. It is well established that for a third party who receives trust property to be liable under the “first limb” of Barnes v Addy, it is sufficient for any of the first four, but not the fifth, categories of knowledge in Baden & Ors v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1992] 4 All ER 161; [1993] 1 WLR 509 at 575-576, 582 to be made out. The fourth category is knowledge of circumstances which would indicate the facts to an honest and reasonable person: see Simmons v NSW Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405 at [90] and McFee v Reilly [2018] NSWCA 322.
The estate does not have to take on the burden of proving the second limb of Barnes v Addy to establish liability against Kashaya, as her position can readily be analysed and should properly be classified as that of a third-party recipient of trust property. She has the requisite knowledge to attract the operation of the first limb and for liability to be established against her under the second limb. But these reasons also find below that the second limb of Barnes v Addy is made out in any event, so as to establish liability in Kashaya for her participation in a dishonest and fraudulent design involving Nerez’s breach of fiduciary duty.
Nerez’s position is even simpler. She is Dr Grant’s fiduciary and she still holds part of the property involved in her self-dealing with her principal, namely her life estate over the Killcare property. She is directly liable to the estate to give that asset up without invoking either limb of Barnes v Addy. But to the extent that the estate relies upon the second limb of Barnes v Addy, Nerez was involved in a dishonest and fraudulent design with Kashaya to take advantage of Nerez’s breach of fiduciary duty.
Kashaya’s Liability. Kashaya was well aware that Nerez had fiduciary obligations to Dr Grant and that she was acting in breach of those fiduciary obligations to him. Kashaya was fully aware: that Nerez held a power of attorney from Dr Grant as that is how Nerez was able to operate accounts and authorise the taking of cash from those accounts for many years for Kashaya’s benefit. She also knew the other matters that Nerez knew from her close contact with Nerez and from her agreement with Nerez to lease the property to her for life. She knew of Nerez’s complete ascendancy over Dr Grant. Kashaya did not have any genuine or well-grounded belief that the power of attorney authorised gifts to her such as the transfer of the Killcare property, as she had never inspected the power of attorney or sought to enquire what it authorised.
Kashaya was quite conscious that there was every chance that Dr Grant would be very substantially disadvantaged by this transaction and she did none of the things that an honest person would do satisfy themselves that the transaction was not in breach of Nerez’s fiduciary duties to Dr Grant. She was in a prime position to insist Dr Grant had legal advice before this transaction proceeded and to satisfy herself that the transaction was not as improvident from Dr Grant’s perspective as it looked on the surface. But she did not do so.
Kashaya was also questioned by the Court over her appreciation of Dr Grant’s separate interests in taking a transfer of the Killcare property from Nerez as Dr Grant’s attorney:

“The Court:    You appreciated that once the transfer took place, that your grandfather would have only very limited assets of maybe 20,000, maybe 60,000 to look after himself?
Kashaya:   I would always have looked after my grandfather.
…
The Court:   So you were prepared to take a transfer of this property from your grandfather without knowing what he’d be left with. Is that the situation?
Kashaya:   Yes, I didn’t think anything of it. Anything else to consider, that question.
The Court:   Did you care what he was left with?
Kashaya:   I cared that he was always looked after and had what he needed, and I would have made sure of that. At that time I didn’t know what was going to happen, and that I was going to be stopped from seeing him or anything, so I didn’t – at that time, I thought this is what he wanted. If there was anything that needed to happen with the property I always would have done it for him, while was in my care.

The Court:    That’s why, if you cared, and you would always have looked after him, why didn’t you agree with the suggestion from the Court in September that you mortgage the property?
Kashaya:   Because I thought the preferential option for that was Seth using the money that he’d been given by Granny for the care of my grandfather. That’s, I thought that was number 1, and if number 2 happened, then that was what had to happen. But I, my, I said I wouldn’t be agreeable to it because I believe that was the right thing.
The Court:   You thought someone else should pay before you?
Kashaya:   I thought Seth, having said there was $420,000 for my grandfather, left by my Granny, it was her wishes. I thought that should be used first before doing complicated things with a property that we’re in proceedings on. But I never would have left my grandfather with nothing.
The Court:   It’s perfectly clear though, as I understand it from your answers, that when you took the transfer of that property you did not either know or inquire how much he was going to be left with?
Kashaya:   That’s correct.”

Kashaya had years of knowledge of the money that she had enjoyed from Dr Grant’s accounts. Her failure to enquire about what Dr Grant would be left with is not the conduct of an honest and reasonable person. Rather it is a basis to find, as the Court does, that she already had knowledge of sufficient facts about the transfer of the Killcare property to her by Nerez as would indicate to an honest and reasonable person the likelihood that Nerez was herself engaged in a breach of fiduciary duty.
The transfer of the Killcare property was obviously improvident for Dr Grant. That obvious improvidence sharpens the inference that both Nerez and Kashaya were also acting dishonestly in effecting the transfer of the Killcare property. The transaction left him at the risk of being put out of comfortable nursing home accommodation because he could not fund the refundable accommodation deposit for the Montana Nursing Home nor meet his ongoing medical and accommodation expenses. The more obvious this is (and it was very obvious) the more that an honest person would enquire as to whether the property was being acquired in breach of a duty to Dr Grant. This would establish liability against Kashaya under the first limb of Barnes v Addy.
But the obviousness of the improvidence of the transaction also strengthens the more demanding inference under the second limb that Kashaya and Nerez were acting in concert for their mutual financial advantage when Nerez used the power of attorney to transfer the Killcare property to Kashaya. They must have known that this was a fraud on Dr Grant because they were taking his last asset and putting him in a helpless position. This was a mutually conceived dishonest and fraudulent scheme that they were both perpetrating on Dr Grant. Kashaya was an active participant in this scheme with full knowledge of its elements and of its disadvantage to Dr Grant.
Other Matters. Kashaya cannot rely upon indefeasibility of title under Real Property Act 1900, s 42(1) to defeat the estate’s claim for the return to it of the Killcare property. She was involved in a dishonest and fraudulent scheme by which the property came into her hands which attracts the actual fraud exception to Real Property Act, s 42(1): Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; (2007) 236 ALR 209; (2007) 81 ALJR 1107; [2007] HCA 22. This was not purely equitable fraud. But in any event, the circumstances of this case raise a personal equity against Kashaya to which indefeasibility is not an answer: Heid v Reliance Finance CorporationPty Ltd (1983) 154 CLR 326; (1983) 49 ALR 229; (1983) 57 ALJR 683; [1983] HCA 30.
The Power of Attorney conferred by Dr Grant on Nerez does not provide any defence to Nerez or Kashaya in these proceedings. It did not empower Nerez to make gifts to herself or to others by use of the instrument. But in any event, the use of the power of attorney was subject to Nerez’s fiduciary duty to her father, which she breached.
Conclusion. The estate seeks that the transfer from Dr Grant to Kashaya be set aside, or in the alternative, that Kashaya pay Dr Grant’s estate $900,000 and interest thereon for the transfer of the Killcare property to her pursuant to an equitable vendor’s lien. There is no evidence that Kashaya has the ready funds to pay $900,000 to the estate so the Court will grant the primary relief sought. If alternative orders are still sought by the estate after reading these reasons, the matter can be relisted under the grant of liberty to apply.
The Court will set aside the transfer of the Killcare property and order Nerez to pay compensation to Dr Grant’s estate for the money transfers of $100,000 and $34,700 that she authorised. The estate is entitled to interest on these sums to be assessed in accordance with the principles applicable to dishonest breaches of fiduciary duty: Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400.

Conclusions and Orders

For these reasons the Court will make the following orders in each of the two proceedings. If any party believes that supplementary orders are required to deal with any other incidental issues then they should draw them to the Court’s attention within 14 days.
In the orders in the estate recovery proceedings, being proceedings number 2017/316190, the "Killcare property" is the property so identified in the plaintiff’s Statement of Claim filed pursuant to the orders of Kunc J on 11 March 2019 prayer for relief 2. In the estate recovery proceedings the Court declares, orders and directs as follows:

Declare that the first defendant, in breach of her fiduciary duty to the late Dr Alan Grant, whose estate is now represented by the plaintiff as administrator ad litem, engaged with the second defendant in a dishonest and fraudulent scheme to transfer the whole of Dr Grant's interest in the Killcare property to the second defendant in return for the first defendant receiving from the second defendant a life interest in the Killcare property;

Order that the second defendant transfer the Killcare property to the plaintiff for no consideration;

Declare that the first defendant holds the sum of $100,000, transferred from the late Dr Alan Grant's bank account number 509 on 4 October 2017, on trust for the plaintiff as administrator ad litem of the estate of the late Dr Alan Grant;

Declare that in breach of her fiduciary duty to Dr Alan Grant the first defendant caused to be debited the sum of $34,700 from the late Dr Alan Grant's bank account (ending in the numbers 509) on 4 October 2017 in order to procure a bank cheque payable to the Office of State Revenue for the benefit of herself and the second defendant;

Order that the first defendant pay the sum of $100,000 referred to in declaration (3) and the sum of $34,700 referred to in order (4) by way of equitable compensation to the plaintiff;

Order that the first defendant pay to the plaintiff interest up to today pursuant to Civil Procedure Act 2005, s 100 on the sums referred to in Order (5);

Direct the plaintiff within 14 days to provide to the defendants and to the Court a calculation of the interest up to judgment provided for in order (6) above;

Direct that the plaintiff within 14 days indicate to the defendants and to the Court whether an enquiry as to damages or any tracing remedies are sought in these proceedings; and

Grant liberty to apply.

In the family provision proceedings, being proceedings number 2018/139174, the Court makes the following orders and directions:

Dismiss the plaintiff's claim for provision out of the estate of the late Mrs Gwynneth Grant;

Order the plaintiff to pay the estate's costs of these proceedings on the ordinary basis;

If any party seeks a special costs order that party should do so within 14 days; and

Grant liberty to apply.

**********

Amendments

24 September 2020 -
In [328], “as to whether ascertain whether” to "to ascertain whether".

In [363] in the sentence “She has the requisite knowledge to attract the operation of the first limb and for liability to be established against her under the first limb.” Where "first limb" appears second in the sentence changed to "second limb".

12 November 2020 - [12] last line, "Ryven" to "Miles"

Order 6: "on the sum of $100,000 referred to in declaration (3)" to "on the sums referred to in Order (5)"

Decision last updated: 12 November 2020

Medium Neutral Citation:	Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288
Hearing dates:	4, 5, 6 & 7, 10, 18 February and 15 April 2020
Date of orders:	24 September 2020
Decision date:	24 September 2020
Jurisdiction:	Equity
Before:	Slattery J
Decision:	In the estate recovery proceedings orders made setting aside the transfer of real estate to the second defendant and the lease from the second defendant to the first defendant. Costs follow the event in the estate recovery proceedings. In the family provision proceedings the plaintiff’s claim is dismissed. Costs follow the event in the family provision proceedings.
Catchwords:	EQUITY – unconscionable bargains – elderly person, since deceased, gives power of attorney to his eldest daughter – she uses the power of attorney to transfer the deceased’s home to her own daughter, either for no consideration, or for named consideration of $900,000 – no formal security was given after the transfer of the property for the payment of the purchase price – deceased’s eldest daughter also transfers money out of the deceased's bank accounts – these transactions left the deceased without the capacity to meet his nursing home outgoings – the deceased’s estate now seeks recovery of the property and an account of moneys transferred from his accounts – whether transactions were in breach of fiduciary duty, or unconscionable, or beyond the authority conferred by the deceased’s power of attorney to his eldest daughter. FAMILY PROVISION – a mother of five children leaves a will which failed to make any provision for her eldest daughter, the plaintiff – after the death of the mother the plaintiff claims that she has been left without adequate provision from the estate of the deceased for her proper maintenance, education or advancement in life – whether the plaintiff has received money during the lifetime of the deceased – whether the plaintiff by her conduct has disentitled herself from making a claim upon her deceased mother's estate – whether the plaintiff has been left without adequate provision from the estate of the deceased for her education, maintenance and advancement in life.
Legislation Cited:	Civil Procedure Act 2005, s 100 Evidence Act1995, s 140(2)(c) Powers of Attorney Act2003 Real Property Act 1900, s 42(1) Succession Act 2006, Chapter 3, s 59(1)(c) Uniform Civil Procedure Rules 2005, r 7.10
Cases Cited:	An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747 Baden & Ors v SociétéGénérale pour Favoriser le Développement du Commerce et de l'Industrieen France SA [1992] 4 All ER 161 Barnes v Addy (1874) LR 9 Ch App 244 Drury v Smith [2012] NSWSC1067 Ellem v Webber [2020] NSWSC 910Evans v Levy [2011] NSWCA 125Drury v Smith [2012] NSWSC1067 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Keaton v Gumulak [2020] NSWSC 943 Kiernan v Cranston and Purcell as Executors of will of Cranston (No 2) [2019] WASC 410. Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725 Portis v Green [2017] NSWSC 1489 Simmons v NSW Trustee and Guardian (2014) 17 BPR 33,717 Singer v Berghouse (No. 2) (1994) 181 CLR 201 McFee v Reilly [2018] NSWCA 322 Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641
Category:	Principal judgment
Parties:	In proceedings 2017/316190 ("the estate recovery proceedings"): Representative of the Estate of Alan Grant: Seth Grant First Defendant: Nerez Grant Second Defendant: Kashaya Grant In proceedings 2018/139174 (“the family provision proceedings”): Plaintiff: Nerez Grant Executor of Gwynneth Grant’s estate: Seth Grant
Representation:	Counsel: For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: A. Hill Solicitors: For the Estate in the Estate Recovery proceedings and for Gwynneth Grant’s Estate in the Family Provision Proceedings: Robert McKessar, Braye Cragg Solicitors First Defendant in both the Estate Recovery and Family Provision proceedings: in person Second Defendant in the Estate Recovery proceedings: in person
File Number(s):	2017/00316190; 2018/00139174
Publication restriction:	No