Grineff v Chusov

[1999] NSWSC 652

Reported Decision: [2000] ANZ ConvR 212
[2000] Aust Contract R 90-140
[1999] NSW ConvR 55-915

New South Wales

Supreme Court

CITATION:	Grineff v Chusov & Ors [1999] NSWSC 652
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	ED 1800/96
HEARING DATE(S):	16 June 1999
JUDGMENT DATE:	16 June 1999
PARTIES :	Dimitri Grineff v Alexander Chusov and The Public Trustee
JUDGMENT OF:	Davies AJ at 1

COUNSEL :	Plaintiff - Ms K. Otteson Defendant 1 - No appearance Defendant 2 - Submitting
SOLICITORS:	Plaintiff - Schweizer & Co Defendant 1 - No appearance Defendant 2 - Solicitor for the Public Trustee, Submitting.
CATCHWORDS:	Transfer of title - undue influence - unconscionable conduct
CASES CITED:	Barton v Armstrong [1976] AC 104 Blomley v Ryan (1956) 99 CLR 362 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Dimskal Shipping Company SA v International Transport Workers' Federation (1992) 2 AC 152 Equiticorp Finance Ltd (In liq) v Bank of New South Wales (1993) 32 NSWLR 50 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 Legione v Hateley (1983) 152 CLR 406 LLoyds Bank Ltd v Bundy [1975] 1 QB 326 National Westminster Bank PLC v Morgan [1985] AC 686 Pao On v Lau Yiu Long [1980] AC 614 Shiloh Spinners Ltd v Harding [1973] AC 691
DECISION:	Verdict for the plaintiff in accordance with short minutes of order.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ED 1800/96
DAVIES AJ
Wednesday, 16 June 1999

DIMITRI GRINEFF v ALEXANDER CHUSOV & ORS
JUDGMENT

1    HIS HONOUR: In this matter the plaintiff is Dimitri Grineff. He was a nephew of Fotinia Nicolaeff and her brother, Michael Nicolaeff. His mother, Vera Grineff, was the sister of Fotinia and Michael. The first defendant, Alexander Chusov, is the son of Klavdia Nicolaeff, who was the wife of Michael Nicolaeff. The second defendant, the Public Trustee, is the executor of Klavdia's estate. Fotinia, Michael and Klavdia Nicolaeff are deceased. 2    There is no appearance on behalf of Alexander Chusov. He was, at one time, represented by a firm of solicitors in Sydney and an appearance was entered. The solicitor, after taking proper steps, filed a Notice of Ceasing to Act. More recently, a solicitor in Victoria has indicated that he had been contacted on behalf of Mr Chusov and had been in touch with his solicitors in Russia; but in the event there is now no appearance for him. The Public Trustee has put in a submitting appearance. 3    The matter principally in issue concerns the ownership of a home at 14 Wray Street, Fairfield, which was the residence of Fotinia and Michael and later Klavdia. There is also another issue as to funds which were drawn from Fotinia's bank accounts about the time she went into a nursing home. 4    I shall set out the principal facts briefly. Fotinia was born on 2 December 1916 in Russia. In 1922, she and her parents moved to China and her younger brother Michael was born in that country. In 1960, Fotinia, Michael and their parents migrated to Australia. In April 1964, Fotinia and Michael purchased the subject property in Fairfield as joint tenants for a price of £5,670. A mortgage from the Commonwealth Bank for £3,700 was taken out. It seems as though Fotinia and Michael contributed the necessary funds equally from their own savings. 5    In the following year, Fotinia sponsored the migration to Australia of her sister Vera, her husband and their son Dimitri Grineff, the plaintiff. After arriving in Australia, they lived until 1968 in the garage of the Fairfield property. 6    By 1967 Michael was showing signs of the delusional condition which was later diagnosed as paranoid schizophrenia. I need not go into all the details; but it is clear that he imagined that he was being affected by burning ray equipment and that he was at risk from secret services, including Australian secret services. 7    In mid to late 1968, Michael was so concerned about what he considered to be the threats to his safety that he decided to move to Russia. He said to the plaintiff:

“I am emigrating for good. I am not returning to the country where they are trying to kill me. I do not want to become a citizen of Australia, the country whose secret service want to kill me. I want to start a new life as a Soviet citizen.”

With this background he spoke to Fotinia and sought from her funds to enable him to obtain accommodation in Russia. An oral arrangement of some sort was made between them and it is known that Fotinia paid to Michael sums totalling approximately $2000, which was about one-half of the moneys which they had put into the property, and that subsequently she sent some other moneys overseas to Michael whilst he was in Russia. However, the exact nature of the arrangement between them is not known. According to the plaintiff, Fotinia said words to him to the effect, “I have paid Michael his share,” and, before he left, Michael said, “I have got my share of the house.” Nevertheless, the house was not transferred into Fotinia's name notwithstanding that, at that time, a firm of solicitors, D C McLaren & Co, was engaged to draw up a loan agreement which Fotinia signed in relation to a sum which she had borrowed from a friend to enable her to make the payment to Michael.

8    The plaintiff's evidence is that, some years later, in 1982, Fotinia said:

“ He (Michael) persuaded me to leave the house registered in both names as insurance that in the event of my death the house would not be lost. Also as insurance to receive the rest of his money from me. ”

In any event, when Michael went overseas in early 1969 the property remained in the joint names. Fotinia continued to make payments under the mortgage until it was finally discharged in April 1976.

9    In 1980, Michael indicated that he proposed to return to Australia and that he wished to bring to Australia his then girlfriend, Klavdia. Fotinia was not at first pleased with this information and wrote to Michael saying, inter alia:

“ I understand that for you it is one thing to come for three months but another to come forever and you will ruin my health for all that time. You have to live on something and I don't want to ask my tenants to leave and it will be crowded for us in the garage. ”

Apparently the house at Fairfield was, at that stage, let to tenants and Fotinia herself was living in the garage.

10    However, Michael and Klavdia did arrive in Australia in September 1981 and they moved into the Fairfield property. Klavdia was younger, I think, than both Fotinia and Michael, certainly younger than Fotinia. Klavdia appears to have been a person who abused alcohol and she was a person with a considerable temper and an inclination to violence when she had been drinking. By early 1982, Klavdia had abused and struck Fotinia more than once and in early 1982 she formed the view that she ought to have an interest in the Fairfield property and that she should be entitled to half of Michael's one-half share in the house. On 3 June 1982 a caveat was lodged by Klavdia over the Fairfield property claiming a resulting trust of a one-quarter share. 11    On 23 August 1982, Fotinia executed a will leaving her estate to Michael for life and, on his death, to the plaintiff. 12    At the end of 1982 and into early 1983, Michael was treated at hospitals and health centres because of his paranoid schizophrenia. In 1982/83 there were more abuse and assaults of Fotinia and, on 25 August 1983, a summons was issued against Klavdia alleging an assault of Fotinia on 21 August 1983. That matter was ultimately settled a year later on Klavdia's undertaking not to verbally or physically assault Fotinia. 13    In the meantime, there was a transaction in relation to the Fairfield property which is one of those with which these proceedings are concerned. Fotinia and Michael, as joint tenants, transferred the Fairfield property to themselves as tenants in common in equal shares for a stated consideration of $1. On the same day, Michael, for an expressed consideration of $14,500, transferred half of his share of the property to Klavdia. An agreement for the sale between Michael and Klavdia and the two necessary transfers were prepared by D C McLaren & Co who had acted in 1968 when Fotinia had borrowed money to pay to Michael. 14    During 1984 and 1986, there were further visits by Michael to the Fairfield Area Health Centre and Rydalmere Hospital. In 1984 and 1986, there were further abuses of Fotinia by Klavdia and assaults on her by Klavdia. 15    In 1986, two summons were issued by Fotinia against Klavdia. In July 1987, Fotinia left her Westpac passbook accounts with her sister Vera and asked her to look after it. In December 1988, Klavdia alleged that she had been assaulted by Michael and Michael was charged. The statement given to the police also alleged that Fotinia had taken a necklace from Klavdia's neck and grabbed her right hand and bitten it. The complaint included the statement: "My husband likes his sister better than me, listens to her not me." It is clear from the overall evidence that there was a very close relationship between Michael and Fotinia. 16    Subsequently the charge brought by Klavdia was withdrawn. At the end of 1989 Fotinia was becoming physically weak and incontinent. She was, therefore, unable herself to travel to see her sister Vera and, thereafter, the plaintiff would, from time to time, drive her to his mother's home. On one visit towards the end of 1989, Fotinia said words to the effect, “Michael looks after me because I am becoming more and more frail”. 17    The plaintiff has given evidence that there were occasions when his mother and he attempted to visit Fotinia but Klavdia discouraged the visits saying words to the effect that Fotinia was not at home. At the end of 1989 on one visit Fotinia asked for her Westpac passbook and that was given to her. She did not explain why she wished it. 18    On 1 May 1990, Michael was admitted to Liverpool Hospital because of his delusional state and he remained there until 5 June 1990. Earlier, Klavdia had applied for a domiciliary nursing benefit for Fotinia and, in the application form, described her condition as including senile dementia and incontinence of the urinary bladder. 19    On 20 July 1990, Fotinia was admitted to Liverpool Hospital. The records of the hospital show that she was diagnosed as having dementia. A report of Dr N M Munn of 17 August 1990 mentions a diagnosis of dementia, mild diabetes and mild hypertension. Dr Munn stated that her condition since discharge from Liverpool Hospital was:

"She has now settled in a Nursing Home, the Nurse who accompanied her agreed she gets confused and lost and she is still unable to talk for herself spontaneously, there doesn’t appear to be any major problems."

A cerebral CT scan was normal. Dr Munn concluded:
"Probable diagnosis here is hypertension, cerebral vascular ischaemic, dementia; although you can’t exclude Alzheimers; either way neither of these amenable to treatment."

20    On 31 July, Fotinia was transferred from the Liverpool Hospital into St Sergius Nursing Home and was there given a principal diagnosis of dementia with diabetes present. Doctor S K Law subsequently reported on 11 August 1995, at a time when Vera was seeking to take control of her sister’s affairs:

"On the physical side she is obese, virtually chair fast, though able to shuffle walk with help. She is able to eat and drink unaided. Her diabetes is well controlled, though she has urinary incontinence and in all probability has been like this since her admission in July 1990."

21    On 1 August 1990, solicitors, Calvin Nelson & Co., who had acted for Klavdia in at least one of the assault proceedings, wrote to Michael and Klavdia to say:

"We confirm your instructions that Fotinia Nicolaeff will, without the payment of any monies, transfer her one half interest in the property 14 Wray Street, Fairfield to you."

22    In March 1991, a transfer from Fotinia to Michael and Klavdia of her one-half share in the Fairfield property was executed. The transfer was expressed to be in consideration of a payment of $70,000. No such payment was made. The transfer was signed twice by Fotinia. The first signature was apparently so shaky that the solicitors, Calvin Nelson & Co considered that a further signature was required. 23    On this occasion Mr Michael Trotiansky, who was an accounts clerk at St Sergius Nursing Home, was called to assist. He knew Fotinia and has given evidence he would, on occasions, say to her in Russian words, "How are you today Miss Nicolaeff?" and she would reply in Russian words, "I am well," or "I am not so well." On being informed by Klavdia and Michael there was a problem with the signature, Mr Trotiansky phoned Calvin Nelson & Co and obtained instructions as to what should be done. His affidavit evidence states:

"I then went with Klavdia and Michael Nicolaeff to Fotinia Nicolaeff's room. Klavdia Nicolaeff held the transfer in her hand. Fotinia Nicolaeff was sitting in her armchair. She did not get up when we entered the room. I do not remember the exact chain of events but I do remember that Klavdia and Michael Nicolaeff kissed Fotinia Nicolaeff and said hello to her (in Russian). Fotinia Nicolaeff was then given the transfer to sign. I also remember that someone pushed the mobile table to her so that she would have something to lean on while she signed. I also remember that she seemed to take a long time to sign the document as she was very careful in writing the letters. I then signed as her witness and filled in my name and address. I then left the room. Klavdia and Michael Nicolaeff stayed behind and I left the transfer with them.
As Fotinia Nicolaeff signed the transfer, I did not ask her what she was signing. I did not go through the document with her nor did I explain the document to her. As far as I can remember Fotinia Nicolaeff did not ask Klavdia or Michael Nicolaeff what the document was (and neither of them went through the document with her nor explained the document to her while I was present.)"

It will be seen from this that on the occasion of the second signing, after Mr Trostiansky had spoken to Calvin Nelson & Co., there was no information given to Fotinia as to what the nature of the document to be executed was, or why it had to be signed. Simply, a document was put in front of her for signature and she signed it, exercising care.

24    The plaintiff says that he and his mother visited Fotinia at the nursing home around about this time and nothing was said to them about a transfer of the property. He says, moreover, that at this time Fotinia had difficulty remembering anything she had done just a short time before. Fotinia remained in the nursing home. 25    Following upon this transaction is a note dated 1993 from Klavdia’s papers which records that Vera and her family were angry about the house and goes on to say:

“It is not enough for them that I [Klavdia] transferred all the documents into my name ...I redid everything or it would all have vanished into the air.”

The substance of this appears to be that had the two transactions I have mentioned not occurred, Klavdia would not have obtained any interest in the home.

26    Michael died on 26 February 1993. Klavdia died from acute alcohol poisoning on 30 September 1994 and Fotinia died on 3 July 1996. Fotinia left practically no assets and Klavdia's assets listed by the Public Trustee are the property at 14 Wray Street, Fairfield, some money, approximately $6000, in a Commonwealth Bank account, and some minor moneys owed to her. 27    Those are the relevant facts with respect to the land. I have yet to come to the facts with respect to the bank account. I shall deal with them later. 28    Of the principles relied upon, the first is that of non est factum, that is that a person who does an act without understanding the nature of what occurs is not bound by that act. The principle is stated this way by Fullagar J in Blomley v Ryan (1956) 99 CLR 362 at 401:

“ The case is not one of that comparatively rare cases where a man's faculties, whether from age or natural infirmity or drink or any other cause, are so defective that he does not really know what he is doing - that his mind does not go with his deed. In such a case his instrument is void even at law - non est factum. ”

Also relied upon are elements of the principle of equitable fraud. These principles were stated in Story’s Equity Jurisprudence , 13th edition in par 187 as follows:

"Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.”

Paragraph 221 of Story states, when dealing with relevant cases of fraud:

“In this class might properly be included all cases of unconscientious advantages in bargains obtained by imposition, circumvention, surprise, and undue influence over persons in general, and in an especial manner all unconscientious advantages, or bargains obtained over persons disabled by weakness, infirmity, age, lunacy, idiocy, drunkenness, coverture, or other incapacity, from taking due care of or protecting their own rights and interests.”

29    This general principle has been adopted in the United Kingdom in cases such as Shiloh Spinners Ltd v Harding [1973] AC 691, Lloyds Bank Ltd v Bundy [1975] 1 QB 326 and National Westminster Bank PLC v Morgan [1985] AC 686 and in this country in Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 and Legione v Hateley (1983) 152 CLR 406. 30 Under this general principle, there are three specific principles with which we are concerned. Firstly, the principle of duress which is, I think, for present purposes, sufficiently expressed in Barton v Armstrong (1976) AC 104 at 121 where Lord Wilberforce and Lord Simon in their dissenting opinion stated:

“This involves consideration of what the law regards as voluntary, or its opposites; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained - advice, persuasion, influence, inducement, representation, commercial pressure - the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion. In this the law, under the influence of equity, has developed from the old common law conception of duress - threat to life and limb - and it has arrived at the modern generalisation expressed by Holmes J - 'subjected to an improper motive or action': Fairbanks v Snow 13 N.E. Reporter 596, 598.
In an action such as the present, then, the first step required of the plaintiff is to show that some illegitimate means of persuasion was used.”

31    That principle has been applied in cases such as Pao Onv Lau Yiu Long [1980] AC 614, Crescendo Management Pty Limited v Westpac Banking Corporation (1988) 19 NSWLR 40, Hawker Pacific Pty Ltd v Helicopter Charter Pty Limited (1991) 22 NSWLR 298, Equiticorp Finance Ltd (In Liq) v Bank of New South Wales (1993) 32 NSWLR 50, Dimskal Shipping Company SA v International Transport Workers' Federation (1992) 2 AC 152. Of particular note are the reasons of McHugh JA, with whom Samuels and Mahoney JJA agreed, in Crescendo Management when his Honour said at page 46:

“ The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct,. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. ”

32    Another two aspects of the principle of equitable fraud are undue influence and unconscionable conduct. For present purposes I think it is sufficient to refer to Commercial Bank of Australia Limited v Amadio at 461 where Mason J said:

“Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transactions which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of 'unconscionable conduct' is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g. a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconsciously taking advantage of that position.
There is no reason for thinking that the two remedies are mutually exclusive in the sense that only one of them is available in a particular situation to the exclusion of the other. Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.”

Other more detailed aspects of the principle of unconscionable conduct are dealt with in the reasons of his Honour, particularly at p 462. I need do no more than refer to his Honour's remarks.

33    The first submission of counsel for the plaintiff, Ms Ottesen, was that, when Fotinia paid Michael the $2000 in 1969 and when she sent to Michael further sums thereafter, she undertook all that she had to do pursuant to an arrangement whereby, for that price, she acquired the whole of the interest in the Fairfield property. I have outlined the basic facts in relation to that matter and I can see why the submission is made, for there is a good deal of substance in it. 34    However, there are two reasons why I think the submission should be rejected. The first is that there is great doubt as to what was agreed between the parties and a doubt as to whether Michael was at that stage in a fit state to come to any final arrangement with respect to the Fairfield property. We know he was under pressure form his delusions to leave the country and needed money to acquire accommodation in Russia. We also know from Fotinia's statement to the plaintiff and to Vera that Michael had persuaded Fotinia to leave the house registered in both names. That suggests that Michael was, although he was going to Russia, still hoping or expecting to have some remaining interest in the property. In fact, nothing was done about transferring the title although, as I have said, Fotinia went to her solicitors to have a loan agreement drawn up. 35    I am not satisfied on the facts that there was ever a final binding agreement between Fotinia and Michael for transfer of property to Fotinia and, in particular, I consider that, had the matter been finally agreed between them at that time, a transfer would have been formally executed. I think the more likely position is that Michael did not anticipate participating any further in the property, at least until after Fotinia's death, but he was not actually prepared to sign a transfer at that time. 36    Another aspect of the matter is that the relationship between Fotinia and Michael was close. I have already referred to one statement by Klavdia that Michael preferred Fotinia to her. That is not the only such statement. The whole history of the association between Fotinia and her brother Michael shows that that was the case. It follows, in my opinion, that once Michael had arrived in Australia with his wife, Fotinia would have wished them to live with her and, in my opinion, once they were living with her, Fotinia would have been very happy for Michael to have a half interest in the property. She would have considered that to be proper. So, it seems to me that Fotinia would have agreed to the transfer into tenancy in common and would have been happy for that to be the position having regard to the fact that Michael had returned from Russia and was married. It seems to me that that transaction having been carried out, that was how Fotinia wanted affairs to be. Moreover, if Fotinia had complained about the transaction in her lifetime, I think she would have been estopped from raising that point because the matter had been done and the other parties had relied upon it. So, for those reasons, I cannot accept the submission that Fotinia was the sole beneficial owner of the property at Fairfield. 37    That brings me, then, to the question whether Fotinia executed the transfer in the names of herself and her brother as tenants in common under duress or undue influence, or whether the transaction was unconscionable. On the whole it seems to me that Fotinia would have executed the transfer of her own free will, knowing what she was doing and that she did it happily with a view to making Michael's marriage a happier one. I can see the argument for duress. Fotinia had been the subject of abuse and some physical assaults, but it does not seem to me that what had occurred was directed expressly at the point of the land or that she would have executed a transfer because of those threats. I think she is more likely to have executed the transfer because she felt that Klavdia was unhappy, one of the reasons for the unhappiness being that Klavdia was worried she might have no security in the future should Michael die. It seems to me that Fotinia would have executed the transfer with a view to putting the family on a better footing rather than because of duress or because of any influence that was exercised and it seems to me to be that the transaction that occurred was not unconscionable. That is because Klavdia had come out to Australia with Michael, her security was at risk, and Michael was not a tower of strength for the very reason that he suffered from delusions. 38    In the papers, there are complaints made by Fotinia about assault. Some of the complaints are written statements. In them, there is no complaint that the property was taken out of her name because of duress or wrongful influence or unconscionable conduct. The only statement that comes possibly to such a complaint is one in the affidavit of Vera who said that her sister, in July 1982, said to her words to the effect:

“Now that he and Klavdia have returned, I appear not to have a moment's peace. Klavdia wants to drive me out of my house. It is my house and I should not be treated in this way.”

It seems to me that the reference to "my house" is too general to amount to persuasive evidence that the property was hers in its entirety or, for that matter, to be a complaint about duress. It seems to me it was more a complaint about Klavdia's behaviour. So, for those reasons, I do not accept the submission that the transfer of the property into the names of Fotinia and Michael as tenants in common and the transfer by Michael to Klavdia of a one-quarter share of the property should be set aside.

39    The next aspect is somewhat easier. That is the transfer which was executed in April 1991. It seems that what was done on that occasion would be set aside under any of the principles of non est factum, undue influence and unconscionable conduct. 40    Fotinia was at the time incapable of looking after her affairs and was suffering from quite severe senile dementia. She received nothing in the transfer, although it was expressed to be a transfer in consideration of the payment of $70,000. She did not receive independent legal advice. Her solicitors, D C McLaren & Co., were not used and there was no evidence that she received independent advice, or indeed any advice from any person. 41    I am satisfied that Fotinia was at the time so deficient in mind that it is probable that she executed the document not knowing that it was. If I am wrong in that, I am satisfied that the unconscionable nature of the transaction, taking as it did the only substantial asset which she had and giving nothing in return, was unconscionable and was only executed because of the influence which Michael and Klavdia had over her. She had in fact been reliant on them for quite some time before she was put into hospital and then into the nursing home. For those reasons, I am satisfied that the orders sought in relation to that transaction of April 1991 should be granted. 42    That leaves the question of the moneys. I have already mentioned that, as at 3 April 1990, Klavdia had applied for domiciliary nursing benefit on the grounds that Fotinia was suffering from senile dementia. I have also mentioned that, on 1 May 1990, Michael was admitted to Liverpool Hospital because of his delusions and that he remained there until 5 June 1990. 43    In early May 1990, Fotinia had a Commonwealth Savings Bank account which had a little over $5000 to its credit. On 8 May 1990 a sum of $1250 was withdrawn. The withdrawal form was signed by Fotinia and on the reverse side by Klavdia. A further sum of $1000 withdrawn from the account on 16 July 1990. Evidence has been given by a handwriting expert, Mr P D Westwood, Forensic Document Services Pty Limited, that the withdrawal slip was very probably not written by Fotinia and was probably written by Klavdia. This was just four days before Fotinia was admitted to Liverpool Hospital, the admission records of which noted: "Family claims she is crazy, refuse to have her at home any longer." 44    Two days later the account had been reduced to $2638.18. On 31 July 1990, the day on which Fotinia was transferred to St Sergius Nursing Home, a withdrawal slip signed by Fotinia was presented for the sum of $2638. That left the account with a credit of eighteen cents before the next Social Security pension cheque was paid in. 45    Those sums all have the suspicious element of being either round sums or sums close to the total of the account. There was no explanation for their withdrawal which is known. I think it is probable that the sums were withdrawn by the actions of Klavdia with a view to clearing out the moneys in Fotinia's account. Once again, I conclude that, although two of the withdrawal slips were signed by Fotinia, she was then incapable of understanding the nature of the act which she was doing, that she acted under Klavdia's instructions and that the money went to Klavdia's benefit and not to the benefit of Fotinia. The amount of $2638 was in fact deposited to an account in Klavdia's name on the same day. 46    Like comments can be made about other withdrawals. A sum of $1600 was withdrawn from Fotinia’s Westpac savings account which, on 30 April 1990, had a credit of $2448.03. On 3 July 1990, a withdrawal slip signed by Fotinia was used to withdraw $1600 from this account. Fotinia had a third Westpac savings account to which a little over $7000 was credited on 16 May 1991 on the termination of a term deposit. On the same day, $5000 was withdrawn and shortly thereafter there was a further amount of $2130 withdrawn. Mr Westwood's evidence is that the withdrawal form for the latter was probably written by Klavdia. That left the account with only a little over $20 to its credit. 47    I am satisfied that all these moneys were taken by Klavdia for improper purposes and that they were not withdrawn as a result of the exercise of individual will by Fotinia. 48    I will order that the plaintiff's costs be taxed and paid out of the estate and that the Public Trustee's costs be paid out of the estate. 49    I direct that counsel bring in short minutes by 5pm on Friday.

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