Ida Wolff bht Steven Binetter v Binetter

[2021] NSWSC 1249

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249

Hearing dates:

23 to 25 August 2021, 27 August 2021

Date of orders:

1 October 2021

Decision date:

01 October 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   The proceedings be dismissed;

(2)   Direct the parties to confer within seven days in relation to the appropriate order as to costs;

(3)   In the event that agreement is reached on the appropriate orders as to costs, the parties to file the proposed orders on or before 5.00pm on 15 October 2021;

(4)   In the event that no agreement is reached on the appropriate orders as to costs, each party to file and serve:

(a)   their proposed orders as to costs and any submissions in support of the proposed order that are not to exceed four pages on or before 22 October 2021;

(b)   any submissions in reply that do not exceed four pages on or before 29 October 2021.

Catchwords:

LOAN RECOVERY – whether defendant borrowed money from his late Aunty in 2010 – inferences drawn from finding of completion of cheque butt – loan established – whether limitation period suspended because of relevant disability affecting lender – disability must be in the management of her affairs in relation to the cause of action the subject of the proceedings – only evidence adduced specific to the loan suggested lender not substantially impaired in relation to cause of action – limitations on evidence from expert who did not examine lender – onus of proof not discharged – proceedings dismissed.

Legislation Cited:

Limitation Act 1969

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Drivas v Jakopovic [2019] NSWCA 2018

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCCA 369

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kotulski v Attard [1981] 1 NSWLR 115

Shalhoub v Buchanan [2004] NSWSC 99

State of New South Wales v Harlum [2007] NSWCA 120

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 182

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51

Category:

Principal judgment

Parties:

Ida Wolff by her tutor Steven Binetter (Plaintiff)
Ronald Binetter (Defendant)

Representation:

Counsel:
D Studdy SC; C Freeman (Plaintiff)
G Sirtes SC; C O’Neill (Defendant)

Solicitors:
Braddon Marx Solicitors (Plaintiff)
Eakin McCaffery Cox (Defendant)

File Number(s):

2018/166618

Judgment

1. The plaintiff, Steven Binetter is one of the two executors of the estate of the Late Mrs Ida Wolff. Mrs Wolff passed away on 4 September 2018.

2. The plaintiff sues his uncle, Ronald Binetter, to recover $1 million that it is alleged he borrowed from Mrs Wolff in September 2010. Mrs Wolff was Ronald Binetter’s aunt. He denies that he borrowed any money from her. He also contends that the plaintiff’s action is statute barred being commenced more than six years after the loan was allegedly made (Limitation Act 1969, s 14). The plaintiff responded by contending that the limitation period was suspended from at least the time it would have otherwise expired until the commencement of these proceedings in May 2018 because Mrs Wolff was subject to a “disability” for the purposes of s 52 of the Limitation Act.

3. For the reasons that follow, I am satisfied that Mrs Wolff lent $1 million to Ronald Binetter. However, I am not satisfied that Mrs Wolff was under a relevant disability for a sufficient period so as to extend the limitation period to enable recovery of the loan.

The Parties and Approach to the Evidence

4. The events the subject of this litigation are best understood having regard to the following family tree:

5. I mean no disrespect to any involved, but for ease of reference I will refer to the members of the Binetter family by their first names.

6. As the above family tree makes clear, Margaret and Mrs Wolff were sisters. At the time of her death in September 2018, Mrs Wolff was aged 98 although some in the family believe she was born in 1913 and was in fact 105. [1] Subject to that caveat, Margaret is 10 years younger than her sister. Margaret gave evidence in these proceedings. Being Jewish and having lived in Eastern Europe in the 1930’s, both Mrs Wolff and Margaret were caught in the abomination that was the Holocaust. [2] According to Ronald, they were sent to Auschwitz together in around 1944. [3] They somehow survived while many members of their family did not. [4] After the war, they came to Australia. Ida married Dr Arthur Wolff. They acquired a number of properties in Eastern Sydney. Dr Wolff died in 1994. [5] Dr and Mrs Wolff did not have children. Margaret married Erwin Binetter. They had four sons, Michael, Ronald, Peter and Andrew. Erwin passed away in 2009. [6]

   1. Court Book (“CB”) 3421 at [84].

   2. CB 1837.

   3. CB 3421 at [87].

   4. CB 3421.

   5. CB 29 at [22].

   6. CB 3413.

7. Not surprisingly, Margaret and Ida were extremely close. The evidence in this case concerned Ida’s advancing years when her health was failing. During that period, they saw each other regularly.

8. Ida Wolff was also very close to Margaret’s daughter-in-law, Suzanne Binetter. Suzanne is married to Michael Binetter, Ronald’s older brother. Suzanne’s parents operated a property management business. Dr and Mrs Wolff were their clients. Suzanne told the Court that she started helping Mrs Wolff and Dr Wolff when she was 12 years old. By the time of Dr Wolff’s death, they were very close. Mrs Wolff asked her to help in “look[ing] after” her properties. [7] She also visited Mrs Wolff “on average at least twice weekly” until her death. [8]

   7. CB 29 at [24].

   8. CB 30 at [25].

9. On 2 December 2011, Mrs Wolff granted an Enduring Power of Attorney to Margaret and Suzanne. Clause 5 records that Mrs Wolff was “unable to read due to blindness”. [9] On the same day, she also appointed Margaret her enduring guardian [10] and Suzanne as her alternate. [11]

   9. CB 106-109 (Ex. SB-2 at 58-60).

   10. CB 106-109 (Ex. SB-2 at 58-60).

   11. CB 115-118 (Ex. SB-2 at 66-69).

10. It was common ground that, since at least or around 2012, a deep and seemingly irrevocable schism has opened up within the Binetter family. As best as I can ascertain, Ronald and his wife, Deborah Huber, are bitterly estranged from at least Michael, Suzanne and Andrew. Margaret appears to be caught between her sons and their families. The evidence reveals that the estrangement was at least in part the fallout from proceedings brought against Michael for a breach of his directors’ duties, [12] although it seems that there was antipathy directed towards Ms Huber prior to then. There was some attempt to relitigate the rights and wrongs of that estrangement in the various affidavits read in these proceedings although most of that material was rejected. For this case, the significant matter is the fact of the estrangement and not its cause.

    12. Referred to at CB 139; Deborah’s statement at CB 167.

11. This bitter estrangement has had consequences for the assessment of the evidence in these proceedings. As will become clear, various submissions invited me to consider the likelihood of the various individuals acting in a particular way at a particular time. Those submissions are difficult to assess not just because of the passage of time but also because the relationship between the various family members is vastly different now to what it was, especially so far as financial matters are concerned.

12. This circumstance has required close consideration to the legal and evidential onuses of proof borne by the parties. In that regard, the legal onus of proof in relation to the two principal issues in the proceedings, namely, the making of a loan by Mrs Wolff to Ronald and whether Mrs Wolff was subject to a disability, was on the plaintiff. The standard of proof is on the balance of probabilities. While that is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J; [1938] HCA 34). Nevertheless, probabilistic reasoning can lead to a Court being actually persuaded of the relevant fact (Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34] to [37] per French CJ, Gummow, Crennan and Bell JJ).

Susan Binetter’s Evidence Concerning the Loan

13. In her first affidavit, [13] Suzanne recounted hosting a family meal at her home “in the first half of September 2010”. She said that she recalled walking into the dining room and seeing Ronald sitting in her chair next to Mrs Wolff. She recalled him stating [14] :

“Ida, I need $1,000,000 and will repay it to you within the next year. Can I borrow it from you?”

13. Affidavit of Suzanne Binetter affirmed 15 October 2019, CB 25.

14. CB 37 (Suzanne Binetter 15.10.2019 at [53]).

14. Suzanne was pressed on this recollection in cross‑examination. She agreed that the first time she recorded this recollection on paper was more than nine years later. [15] When asked whether she heard any response from Ms Wolff, Suzanne explained that she had a large number of people at dinner that night because “if I’m not mistaken [it was] the first night of the Jewish New Year” [16] which was a Thursday night. [17] She clarified that her recollection was that Jewish New Year fell on a Friday and a traditional meal was held the night before [18] (although her first affidavit describes this conversation in a section that refers to Friday night family dinners[19] ). In fact, it was common ground that Jewish New Year fell on Wednesday 8 September 2010 (and thus any family dinner the night before would have been on the evening of Tuesday 7 September 2010). [20]

    15. Tr 23/08/2021 33.20.

    16. Tr 23/08/2021 p 33.12.

    17. Tr 23/08/2021 p 33.41.

    18. Tr 23/08/2021 p 34.9.

    19. CB 1, Tab 5 at [51].

    20. Tr 24/08/2021 p 118.40.

15. In her first affidavit, Suzanne said that “at the time of the meal”, Mrs Wolff told her to transfer $1,000,000.00 from her “BankWest account to my account with National [ie, the National Australia Bank]”. She said the balance of the conversation was as follows [21] :

    21. CB 38-39 (Suzanne Binetter 15.10.2019 at [56]); The use of this evidence was restricted to proving what was said and not the effect of what was said (Evidence Act, s 136).

“IW:   Suzanne, I want you to transfer $1,000,000 from my BankWest account to my account with National.

SB:   Why?

IW:   Ronny has asked me for the money. I can’t say no. He is my nephew and if my sister’s son asks me to help him then I have to help him. He said he will repay it in a year. What do you think?

SB:   It is your decision. It is your money and you can do what you want with it.

IW:   I want Ronny to sign that he got the loan and I want you there.

SB:   OK. No problem.

IW:   Can you please prepare something? I don’t trust Ronny because of Deborah.   

SB:   OK. I will prepare something.”

16. As noted below, Ronald denied making any such request of Mrs Wolff. In cross‑examination, Suzanne said that this conversation occurred following the meal and as Mrs Wolff was leaving. [22] She said that she had a clear recollection of Mrs Wolff saying that it would be paid within a year. She did not ask Mrs Wolff whether Ronald told her how he was going to use the funds [23] even though she agreed that Mrs Wolff asked for her advice about the loan. [24] Suzanne agreed that, even though her husband, Michael, was an experienced commercial lawyer, she did not seek his assistance in preparing any documentation. [25] As at 2010, Suzanne was a practising dentist. [26]

    22. Tr 23/08/2021 p 39.19.

    23. Tr 23/08/2021 p 40.23.

    24. Tr 23/08/2021 p 41.

    25. Tr 23/08/2021 p 43.21.

    26. Tr 23/08/2021 p 41.

17. On 16 September 2010, Suzanne transferred $1,000,000 from Mrs Wolff’s BankWest Account to Mrs Wolff’s NAB Account. [27] A bank statement records the receipt of that amount on that date. [28] In cross‑examination, Suzanne said she made that transfer while she attended Mrs Wolff’s home. [29] She also said that she prepared a loan acknowledgement document which she left at Mr Wolff’s home on 16 September 2010 [30] (see below). Suzanne was asked why it did not include a repayment date when she was told it would be repaid within 12 months. She said she was not experienced in drafting legal documents. [31]

    27. CB 39 and 127-128 (Suzanne Binetter 15.10.2019 at [58]; Ex. SB-2 at 78-79).

    28. CB 128.

    29. Tr 23/08/2021 p 44.17.

    30. Tr 23/08/2021 p 43.38.

    31. Tr 23/08/2021 p 47.

18. In her first affidavit, Suzanne stated that, on a date prior to (Monday) 20 September 2010 that she could not precisely recall, she was asked by Mrs Wolff to meet her and Ronald at Mrs Wolff’s home at 7.00pm on 20 September 2010. She says that on the day at about 7.00pm she went to Mrs Wolff’s home at Darling Point. When she arrived, she saw Ronald standing at the front of the apartment building and they entered together. [32] Suzanne said that no-one else was present in Mrs Wolff’s apartment other than her carer who was in the kitchen.

    32. CB 39 (Suzanne Binetter 15.10.2019 at [60]).

19. Suzanne recalls that she had a conversation with Mrs Wolff as follows:

“IW:   Do you think it’s alright?

SB:   It’s your decision. You can do with your money what you want.”

20. Suzanne says that she saw Mrs Wolff sign in her NAB cheque book and then give Ronald her cheque book. She then saw Ronald complete the cheque butt and take the signed cheque. In cross‑examination she initially said that she saw “Ron write on the cheque” but later said she was not “staring at him” and “don’t recall exactly if he was writing on the butt, or on the cheque”. [33] Suzanne also said that the loan acknowledgment was signed by Mrs Wolff and Ronald in her presence and she witnessed their signatures. [34] In cross‑examination she said she signed first, then Mrs Wolff and then Ronald. She was asked: [35]

“Q.   So what happened?  You signed it, then passed the pen to Mrs Wolff who signed it who then passed the pen to Ron to sign it, is that what happened?

A.   I'm not clear about the passing of the pens.  I passed the pen to Mrs Wolff and I'm not clear about Ron.  I believe it was the same pen but correct the piece of paper was passed from me to Mrs Wolff to Ron.” (emphasis added)

33. Tr 23/08/2021 p 51 to 52.

34. CB 39-40 and 129-130 (Suzanne Binetter 15.10.2019 at [61]-[63]; Ex. SB-2 at 80-81).

35. Tr 23/08/2021 p 53.

21. Suzanne also stated that, during 2018 when she became aware of an application filed by Ronald with the Civil and Administrative Appeals Tribunal (“NCAT”) as outlined below, she went through Mrs Wolff’s “paperwork” and located the original of the loan acknowledgement and cheque butt. [36]

    36. CB 45 at [80]; CB 293 at [5(d)].

22. The original loan acknowledgement and the cheque book containing the cheque butt were tendered. [37] The loan acknowledgement is as follows:

37. Exhibit B.

23. The cheque book contained a number of cheque butts recording the issue of cheques on dates that correspond with subsequent debits to Mrs Wolff’s NAB account in late 2010. [38] It also included the following cheque butt:

38. CB 128.

24. Suzanne stated that “[o]n a date after 20 September 2010”, she recalled attending a family gathering at which Ronald attended but which Mrs Wolff did not. In cross‑examination, she confirmed that it occurred in 2010 and was also attended by Michael, Andrew, Stephen Binetter and Ronald’s daughter. [39] She recalled Ronald stating [40] :

“You can deduct the loan from my inheritance”.

39. Tr 23/08/2021 p 55.15.

40. CB 40 (Suzanne Binetter 15.10.2019 at [65]).

25. Suzanne stated that “[f]rom time to time over the course of the next couple of years” Mrs Wolff said to her words the effect: “When is Ronny going to give me back my money?” Suzanne stated that she replied: “I don’t know. Why don’t you ask him?”. [41] Suzanne stated that, “[a]fter a few years”, Mrs Wolff stopped mentioning the loan to her and that she, “struggled with her eyesight and also struggled with her hearing, mobility, respiratory and gastrointestinal function”. [42]

    41. CB 40 (Suzanne Binetter 15.10.2019 at [66]).

    42. CB 40 (Suzanne Binetter 15.10.2019 at [67]).

26. In cross‑examination, Suzanne said that Mrs Wolff started asking this within a few weeks of lending Ronald the money and repeated it every “fortnight, possibly three weeks thereafter.” [43] Suzanne said Mrs Wolff continued asking this although with less regularity “all the way up to September 2013”. [44] Suzanne agreed that Mrs Wolff raised the loan with her more than 20 times [45] and each time she made the same response. [46]

    43. Tr 23/08/2021 p 57.

    44. Tr 23/08/2021 p 60.39.

    45. Tr 23/08/2021 p 57.28.

    46. Tr 23/08/2021 p 58.32.

27. These answers are to be considered in a context whereby Mrs Wolff placed considerable trust and confidence in Suzanne, especially concerning her financial affairs. As noted, from December 2011 she was the donee of a power of attorney from Mrs Wolff. Further, on 29 April 2014 Mrs Wolff signed a document entitled “To Whom it may concern Authority on Suzanne Vivienne Binetter”. [47] It included the following statement:

“I, Ida Wolff … acknowledge my past, present and future authorisation of Ms Suzanne Vivienne Binetter ... to act on my behalf in relation to all my commercial, business, transactional dealings and personal fitness.”

47. CB 105 (Ex. SB-2 at 56).

28. Suzanne explained that she prepared this document because Mrs Wolff’s health was deteriorating and she wanted to “have some sort of authentication of my authority”. [48] Suzanne said she explained this document to Mrs Wolff before she signed it and was satisfied that Mrs Wolff understood its contents. [49] However, Suzanne denied that it gave her any authority to deal with Ronald’s loan. [50] At one point Suzanne was asked: [51]

“Q.   Mrs Binetter, as at April 2014, did you know one way or another whether the loan to Ronald had been repaid?

A.   No.

Q.   Did you have any belief about that?

A.   I was a little preoccupied with events in my life at that time and I didn’t focus on it at all.”

48. Tr 23/082021 p 60.15.

49. Tr 23/08/2021 p 62.28.

50. Tr 23/08/2021 p 60.18.

51. Tr 23/08/2021 p 61.

29. Suzanne explained that the events preoccupying her included Mrs Wolff’s deteriorating health. Suzanne said that between 2014 and 2018 her life changed dramatically, [52] which appears to be a reference to the events noted above (at [10]). [53] In re-examination she said that she did not feel that the loan was her responsibility and that the loan was “fading from my mind … between 2014 and 2018 …”. [54]

    52. Tr 23/08/2021 p 63.45.

    53. Tr 24/08/2021 p 71.

    54. Tr 24/08/2021 p 80.44.

30. While I accept that Suzanne may have been under great stress during this period, I have difficulty reconciling her denial of knowing whether the loan was outstanding with her conduct to that point (and in 2018). On Suzanne’s version, she was intimately involved in arranging the loan, had access to Mrs Wolff’s financial records, including banking documents, and otherwise occupied a position of great trust vis‑a‑vis Mrs Wolff. Further, she stated that at least up until 2013, Mrs Wolff continually raised with her the fact that the loan had not been repaid. In those circumstances, it seems inherently improbable that she would not be aware of whether or not her brother-in-law had repaid his loan from Mrs Wolff. This evidence in particular, has caused me hesitation in accepting her evidence unless it was supported by other evidence.

31. Further, insofar as it is suggested that Mrs Wolff was not capable of managing her own affairs, this aspect of Suzanne’s evidence, if accepted, reveals that at least throughout the period 2010 to 2013 Mrs Wolff was clearly cognisant of the fact that she had lent money to Ronald, was aware that it had not been paid, sought advice from a trusted confidante about those matters and was capable of understanding the document she signed in April 2014. Further, Suzanne’s evidence that Mrs Wolff did not raise the loan after that time is not surprising given that, on Suzanne’s version, Mrs Wolff had previously raised it more than 20 times with someone she trusted and received no assistance every time.

The NCAT Application and the Commencement of the Proceedings

32. On 12 March 2018, Ronald lodged an application with NCAT seeking an order that the Public Guardian be appointed Mrs Wolff’s Guardian. [55] On 18 March 2018, he lodged a Financial Management Application with NCAT seeking an order that he or the NSW Trustee and Guardian be appointed Mrs Wolff’s financial manager. [56] In a statement accompanying the Guardianship application, Ronald referred to her advancing years, health problems and significant wealth. [57] He contended that Suzanne spent most of her time in the USA with her husband and referred to proceedings against him in this country alleging he breached his Director’s duties, [58] certain findings said to have been made against him in those proceedings, [59] and enclosed a precis of evidence said to be given by Deborah Huber in those proceedings making serious allegations against Michael. [60]

    55. CB 131-177 (Ex SB-2 at 82-128).

    56. CB 178-228 (Ex SB-2 at 129-178).

    57. CB 137.

    58. CB 187.

    59. CB 189.

    60. CB 167.

33. Under the heading “Fraud on Mrs Ida Wolff in 2009/2010”, Ronald echoed the contents of his affidavit in these proceedings by alleging that Michael and Andrew persuaded him to obtain a loan for them from Mrs Wolff to avoid the calling in of a debt on his mother’s home. Twice in that statement Ronald quoted them as asserting that Mrs Wolff did not trust them but did trust him. [61]

    61. CB 139 to 140. Consistent with the ruling that I made in relation to the equivalent parts of Ronald Binetter’s affidavit I treated this material as evidence of the making of the statement and gave it no weight in relation to the underlying matters asserted.

34. Suzanne was emailed these applications on or around 8 April 2018. She was overseas at the time. [62] She said that she told Margaret that they had a legal duty to Mrs Wolff to take some action. [63] She returned to Australia on 11 April 2018 and went to see Mrs Wolff. Suzanne told Mrs Wolff that a legal matter had arisen and she needed to obtain legal representation. [64] Suzanne’s evidence was that Mrs Wolff’s “first reaction was how much is it going to cost”. [65] She agreed that Mrs Wolff comprehended what was being asked of her. [66]

    62. Tr 23/08/2021 p 26.40.

    63. Tr 24/08/2021 p 75.30.

    64. Id.

    65. Tr 23/08/2021 p 27.8.

    66. Id.

35. Suzanne arranged for the plaintiff’s solicitor, Mark Secivanovic of BraddonMarx, to attend on her and Mrs Wolff on 13 April 2018 at Mrs Wolff’s apartment. Suzanne states that, after introductions, “Mark met with Mrs Wolff alone”. She said that the three of them then had a “general discussion”. [67] She said that during the “general discussion” the following was stated:

“MS:   Mrs Wolff, has Ron repaid you any of the money?

IW:   No.

MS:   Mrs Wolff, do you want Ron to repay the money?

IW:   Yes.

MS:   Do you want me to get the money back for you?

IW:   Yes.”

67. CB 47-48 (Suzanne Binetter 15.10.2019 at [90]-[91]).

36. In her first affidavit Suzanne stated as follows in relation to this conversation [68] :

“Being involved in Mrs Wolff’s day to day affairs at this time and having day to day contact with her, I verily believe that she [Ie Mrs Wolff] understood the substance of the conversation with Mark [Secivanovic] deposed to above, and indicated to Mark her true intentions in respect of the loan.”

68. CB 47-48 (Suzanne Binetter 15.10.2019 at [92]).

37. Suzanne also stated that in “mid to late April 2018” she and Margaret as “attorneys for Mrs Wolff” instructed Mr Secivanovic to issue a demand to Ronald to repay $1,000,000.00. [69] A letter of demand was sent on or about 27 April 2018. [70]

    69. CB 47, Suzanne Binetter 15.10.2019 at [84].

    70. CB 255.

38. On or about 4 May 2018, Margaret signed an Authority authorising Suzanne to give instructions to BraddonMarx in relation to the recovery of the loan from Ronald while stating her unwillingness to be involved in the recovery of the loan. [71] These proceedings were commenced on 28 May 2018 with Suzanne as Mrs Wolff’s tutor. Subsequently, Steven Binetter was substituted for his mother. As noted, Mrs Wolff died on 4 September 2018. In the meantime, the two applications to NCAT were withdrawn.

Ronald Binetter’s Evidence

71. CB 259-260 (Ex SB-2 at 210-211).

39. Ronald Binetter has been practising as an ophthalmologist since 1990. He was also close to Mrs Wolff. I have already referred to the family schism. In his first affidavit, he states that by late 2012 he had ceased all contact with his brother Michael and shortly thereafter his brother Andrew. [72] He said that Michael was a solicitor who specialised in commercial tax law and was his solicitor until they stopped speaking. [73] Ronald said Andrew was a businessman. [74]

    72. Affidavit of Ronald Binetter affirmed 28 August 2020 at [58]; CB 3418.

    73. CB 3411 at [10] and [14].

    74. Id.

40. Ronald denied that he signed any loan agreement or acknowledgement, that he signed any document in front of Suzanne, that he asked Mrs Wolff for money for himself and that he ever received a cheque from Mrs Wolff [75] including a cheque for $1 million. [76] He stated that he did not see the loan acknowledgement or the cheque butt until he received a letter in 2018 demanding payment. As further outlined below, Ronald stated that on 20 September 2010 he was working at his Bankstown rooms and, given his workload, he estimated he left at around 8.30pm and therefore could not have arrived at Mrs Wolff’s apartment at Darling Point before 9.30pm. [77]

    75. CB 3418 at [59] to [63].

    76. CB 3418 at [74].

    77. CB 3418 at [71].

41. As explained below, the cheque drawn by Mrs Wolff was deposited into an account in the name of “Erma Nominees” at the Maroubra Branch of the Commonwealth Bank on 21 September 2010. [78] In his second affidavit, Ronald denied that as at September 2020 he owed any money to Erma Nominees. [79] In his first affidavit, he stated that he worked at his North Sydney rooms on that day. He said he usually worked until 5.30pm at North Sydney and would not have had time to travel to Maroubra during bank opening hours. [80] In his second affidavit, he noted that the Maroubra Branch of the CBA was only seven minutes’ drive from Andrew’s workplace, being the “Nudie” fruit juice business. [81]

    78. CB 3503.

    79. CB 3458 at [46].

    80. CB 3420 at [76].

    81. CB 3461 at [73].

42. In his first affidavit, Ronald recounted various conversations he had with his brothers and then with Mrs Wolff in 2010 which it was submitted help explain how $1,000,000 came to be deducted from her bank account. He said that in 2010 he had a conversation with Michael and Andrew in the kitchen of their parents’ home in Rose Bay to the following effect [82] :

MB:   “Investec Bank is calling on our loan facility for Nudie. You know it is secured against Rawson Road. We are about one million dollars short ... can you go and ask Ida to lend money so that the bank doesn’t repossess Mum’s house? Tell her that the $1 million will be repaid within three months.”

RB:   “Why don’t you ask Ida for the money?”

MB or AB: “You are the favourite nephew.”

AB:   “I promise we will pay her back Ron.” (emphasis added)

82. CB 3456 at [49]; only admitted as evidence of what was said and not its contents (s 136).

43. Ronald said that, shortly after this conversation, he went to Mrs Wolff’s apartment at Darling Point on a Sunday afternoon. He said he had a conversation with Mrs Wolff as follows [83] :

RB:   “Andrew and Michael told me that there is a mortgage on Mummy's house. The bank has asked for the money to be repaid. Andrew and Michael told me that they don't have the money to pay the bank. They need one million dollars otherwise Investec Bank will sell Mummy's house. Can you help Mummy?”

IW:   “I thought Erwin was a millionaire and a businessman! Why is your mother in this situation?”

IW:   “I would do anything for Manci. I will lend the family the money.”

83. CB 3417 and 3419 (Ronald Binetter 28.08.2020 at [51] and [60]-[63]; only admitted as evidence of what was said and not its contents (s 136).

44. Ronald said that in the following week he spoke to his brother Michael on the telephone and asked, “What happened with the money to pay down the mortgage?”. He said that Michael replied, “Suzanne went to get the cheque from Ida”. [84] Ronald said that he repeatedly asked his mother whether her mortgage had been paid out. He said that she told him that she did not know and told him to “talk to Andrew and Michael”. [85] He says he asked Andrew and Michael what happened with his mother’s mortgage and was told “Don’t worry about it. It’s all sorted.” [86]

    84. CB 3417-3418 (Ronald Binetter 28.08.2020 at [52]); only admitted as evidence of what was said and not its contents (s 136).

    85. CB 3417 at [56] (Ronald Binetter 28.08.2020 at [56]; only admitted as evidence of what was said and not its contents (s 136).

    86. CB 3417 at [57] (Ronald Binetter 28.08.2020 at [56]; only admitted as evidence of what was said and not its contents (s 136).

45. In relation to the various NCAT applications he filed in 2018, Ronald explained that he learnt in early 2018 that Mrs Wolff was selling various properties [87] and formed the belief that she was being manipulated. [88] He agreed that he later offered Margaret to withdraw his guardianship application if she withdraw from suing him for $1 million. [89]

    87. Tr 25/08/2021 p 148.

    88. Tr 25/08/2021 p 149.35.

    89. Tr 25/08/2021 p 150.34.

46. Ronald’s evidence concerning the handwriting on the loan acknowledgement and the cheque butt is set out below, but in short, he agreed it looked like his handwriting. Otherwise, in cross‑examination, he denied attending a dinner at Michael’s place on Thursday 9 September 2010 or on the night before. He said that on the evening of 8 September 2010 he attended at his sister‑in‑law’s home for dinner as he always did on the night before Jewish New Year. [90] He accepted that he would have attended a dinner at Michael and Suzanne’s place on Friday, 10 September 2010. [91]

    90. Tr 24/08/2021 p 119.43.

    91. Tr 24/08/2021 p 120.9.

47. Ronald denied borrowing any money from Mrs Wolff and denied having any need for funds. [92] He said that, to the contrary, he funded loans to various Binetter companies including a loan of $570,000 to Ligon 158 Pty Ltd (“Ligon 158”) in early 2010. [93] Ligon 158 was the operating entity for a Binetter family business which Ronald was not involved in. Ronald agreed that in his version of the conversation with Mrs Wolff he did not mention that any aspect of the loan related to the Nudie juice business even though his brothers mentioned that in the conversation with him. He denied intentionally omitting any reference to that in his conversation with Mrs Wolff. [94]

    92. Tr 24/08/2021 p 120.

    93. CB 3460 at [68] to [69].

    94. Tr 25/08/2021 p 128.

48. Other aspects of Ronald’s evidence are set out below. At this point it suffices to state that, although it was evident that he carried a deep distrust of those on the other side of the family schism, there was nothing about his demeanour or manner of answering questions that raised any concern about his honesty as a witness. Instead, the findings that are adverse to him are made based on a consideration of the entirety and the preponderance of the objective evidence especially the handwriting evidence.

Margaret Binetter’s Evidence

49. Two affidavits from Margaret were read on behalf of Ronald. Margaret was cross‑examined at the hearing. [95] Her personal circumstances are described above. She was 94 years old at the time she gave evidence. One of her affidavits concerns the repayment of Ronald’s loan from Erma Nominees (see below). In the other affidavit, Margaret said that Suzanne never told her or showed her the loan acknowledgement or cheque butt until 2018 and that was the first time she ever heard any suggestion that Ronald owed money to Mrs Wolff. [96]

    95. Tr 25/08/2021 p 158ff.

    96. CB 3513 at [9] to [14].

50. Margaret said that she recalled that at some point her sister said to her [97] :

"Ronny came to ask me for a loan of $1 million. He said that the family needed it to pay down the mortgage on your house. He said that the bank wanted the money or you would lose your house”

“I think the money went to Nudie. I would never have loaned the money if I knew that it went to the family business.”

“I gave the money to the family, not to Ronny. The family owes me the money”.

97. CB 3514 at [22] to [24].

51. I have already referred to the difficult position Margaret was placed in in being both the donee of Mrs Wolff’s power to attorney and the mother of the alleged borrower. On 4 May 2018, she executed a document that recorded that, from “documents discovered recently”, it appeared that Ronald had borrowed $1,000,000.00 from Mrs Wolff. In that document she disclaimed the power of attorney and recorded her unwillingness to participate in the recovery of the loan. [98] In cross‑examination she stated that she did not recall signing the document and did not “know what it’s about”. [99]

    98. CB 259.

    99. Tr 25/08/2021 p 161.8.

52. On 19 June 2018, Margaret received an email from Ms Huber stating that Ronald was in a distressed state and that “I am going to see you tomorrow to beg you to withdraw this nonsense”, [100] which I infer was a reference to the claim to recover the alleged loan the subject of these proceedings. It suffices to state that the next two emails she received in that exchange from that point would have been extremely distressing. [101] In cross‑examination, Margaret stated that she did not recall receiving these emails. [102] That answer more than anything gave me the impression that her only interest in these proceedings was not to jeopardise her relationship with Ronald and Deborah. That is completely understandable but also means that I have found her evidence to be of little assistance.

    100. CB 303.

    101. CB 301 to 302.

    102. Tr 25/08/2021 p 168.

Handwriting Evidence

53. The plaintiff deployed evidence from a handwriting and document expert, Melanie Holt, in an endeavour to prove that Ronald signed the loan acknowledgement and the cheque butt. Ms Holt’s report was admitted without objection. [103] She was briefly cross‑examined.

    103. CB 3284; Plaintiff’s submissions at [2ff].

54. Ms Holt subjected the original of loan acknowledgement to an examination using a range of light sources and filter combinations. She observed the ink used to write “R Binetter” reacted differently to that used to write the other two signatures. She said that the “difference in reaction provides very strong evidence that at least two different black inks were used to sign the document”. [104] Ms Holt added that the reaction of the ink suggested that the same ink was used to write the Ida Wolff and Suzanne signatures, however chemical testing would need to be undertaken to confirm that, which was not undertaken. She added that such testing would not confirm whether the same pen was used only the same ink. [105] In cross‑examination she agreed that all of the signatures on the loan acknowledgement were above the relevant dotted line and it was not possible to determine whether any of those signatures were placed on the page before the printing was placed on the document or afterwards. [106]

    104. CB 3294 at [25].

    105. CB 3294.

    106. Tr 24/08/2021 p 107.

55. Ms Holt was provided with a number of specimen signatures and handwriting for Ronald being mostly passenger arrival and departure cards. [107] She subjected them to a close comparison with the signatures in the loan acknowledgement and the cheque butt. Ms Holt ultimately concluded that the evidence available to her provided “strong support” for a hypothesis that the writer of “R Binetter” on the various specimen signatures wrote “R Binetter” on the loan acknowledgement compared to an alternative hypothesis that it was written by someone else. Ms Holt reached the same conclusion in relation to the “hand printing” on the cheque butt by reference to a set of specimen signature and handwriting documents that only partly coincided with that those that supported her conclusion in relation the loan acknowledgement. [108] Ms Holt explained that both of those conclusions were in the “strong range”. She stated that the main limitations on her conclusions in relation to the loan acknowledgement were the “poorly reproduced nature” of some of the specimen documents, the “moderate complexity” of the specimen signatures and the “single signature nature” of the examination. [109] With the hand printing on the cheque butt, Ms Holt stated that the limitations on her conclusion were the “poorly reproduced nature” of some of the specimen documents and the limited amount of writing on the cheque butt. [110]

    107. CB 3305.

    108. CB 3302 at [54].

    109. CB 3302 at [55].

    110. CB 3302 at [56].

56. Ms Holt’s report explained that her methodology uses terminology such that, when a proposition is said to be supported, the relevant descriptors are “limited or weak” support, “moderate”, “moderately strong”, “strong”, “very strong” and “extremely strong”. [111]

    111. CB 3393.

57. In cross‑examination Ms Holt was asked about the handwriting on the cheque butt as follows [112] :

    112. Tr 24/08/2021 pp 108 to 109.

“Q.   Is it correct to say that the cheque butt; that is, item 2, only contained a small sample of writing for you to perform your analysis from?

A.   It was sufficient to conduct a comparison.  It was limited, yes.

Q.   It was limited so that made it a difficult exercise.  Correct?

A.   Difficult?  I wouldn't say difficult.  It's just - no, it doesn't increase the difficulty of the examination; it's just that there can sometimes be less variation because you've got less formations.

Q.   Does it increase the possibility that someone, other than the person who's said to have written on the cheque butt may have written on the cheque butt?

A.   You've always got to be careful when you do have a limited amount of writing because the possibility [of simulation] or disguise over a smaller amount of writing is more possible than over a larger amount of writing.  But having said that, the cheque butt was written very fluently and there were a lot of very fine and subtle details that came through.

Q.   You cannot exclude the possibility that it's a copy or a forgery?

A.   Look, I don't think you can ever exclude that possibility but the evidence doesn't - is - favours it being genuine more strongly than it favours it being written by somebody else.” (emphasis added)

58. This evidence must be considered with the answers Ronald gave when asked about his signature in cross‑examination. He agreed that the signature on the loan acknowledgment “looks like my writing” but he did not “know whether it is my handwriting or not”. [113] As for the cheque butt, he was asked as follows: [114]

“Q.   That is your handwriting on the cheque butt at page 129, isn't it?

A.   Once again, I would say, it looks like my writing.

Q.   When you say that, that includes the handwriting next to the date, the handwriting just below the printed word “payee”, the handwriting for the amount of the cheque; correct?

A.   The handwriting for the payee, yes.  For the cheque, I would have to say less certainly.

Q.   You mean for the amount?

A.   For the amount. …” (emphasis added)

113. Tr 24/08/2021 p 121.

114. Tr 24/08/2021 p 121.

59. The handwriting for the “payee” on the cheque butt is the words “Loan to R Binetter”.

60. When he was asked whether he had any explanation for his handwriting on the loan acknowledgment and the cheque butt, Ronald stated that there were “many other instances prior to 2012 where my brothers, Michael and Andrew specifically, not my brother Peter, directed me to sign a cheque or sign a document which ultimately I found it to be adverse to my interests, or were in fact fraudulent”. [115]

    115. Tr 25/08/2021 p 124.26.

The Mortgage Discharge and Distribution of the Loan Proceeds and the Mortgage Discharge

61. Both parties sought to rely on evidence concerning the distribution of the proceeds of the cheque to support the respective cases. As noted, the cheque was deposited into account in the name of Erma Nominees at the Maroubra branch of the Commonwealth Bank on 21 September 2010.

62. The plaintiff contended that Ronald used the proceeds of the loan to discharge a mortgage over his home in favour of Erma Nominees. [116]

    116. Plaintiff’s submissions at [41] to [44].

63. Erma Nominees Pty Ltd was the trustee of a discretionary family trust known as the “Ervin Binetter Family Trust”. The trust was established in 1971 with its potential beneficiaries being “Ervin”, Margaret and their four sons. [117] Presumably “Erma” is taken from the first two letters of Erwin and Margaret and “Ervin” is a mistaken reference to Erwin. Erma Nominees is now in liquidation. [118] From 1996 until Erwin’s death in 2009, its directors were Erwin, Margaret and Andrew. After Erwin’s death, its directors were Margaret and Andrew. [119]

    117. CB 362.

    118. CB 3455 at [16].

    119. CB 385.

64. On 13 February 1989, Erma Nominees took a mortgage over a home then owned by Ronald and Deborah Huber for a loan of $500,000.00. [120] The memorandum of mortgage records that the mortgage was repayable on demand and the interest rate was that nominated by Erma Nominees although it could not exceed 0.25% above the NAB commercial overdraft rate. [121] By 2000, the property was solely owned by Ronald. On or about 14 February 2001, a mortgage was registered over the property in favour of ANZ Bank [122] along with a postponement of mortgage executed in December 2000 by Andrew on behalf of Erma Nominees, subordinating its mortgage to ANZ’s. [123] In cross‑examination, Ronald stated that these loans were provided as security for loans arranged by Michael and Andrew. [124]

    120. CB 395.

    121. CB 397.4.

    122. CB 416.

    123. CB 418.

    124. Tr 25/08/2021 pp 153 to 154.

65. A discharge of the ANZ mortgage bearing the date 7 June 2010 was registered on 29 November 2010. [125] As noted, on the same date a discharge of Erma Nominees mortgage was registered. [126] The discharge was undated. It was signed on behalf of Erma Nominees by Andrew and Margaret. [127] .

    125. CB 419.

    126. CB 420.

    127. CB 420.

66. The plaintiff contended that receipt by Erma Nominees of the proceeds of the cheque signed by Mrs Wolff and the discharge of the mortgage on Ronald’s home supported its contention that he agreed to the loan in that he used its proceeds to discharge that mortgage.

67. Ronald sought to rebut that reasoning as follows [128] . First, on behalf of Ronald an affidavit was read from Edward Boyce, a solicitor with considerable experience in property transactions. The relevant part of Mr Boyce’s affidavit concerns his knowledge of the notations placed on dealings by the Land Titles office. In relation to the notation “Rev: 26-Aug-2010” and “Rev: 29-Nov-2010” on the mortgage discharge, he opined that, based on his knowledge and experience, they represent the dates that the dealings are registered by the Registrar General[129] (and not the date the dealing was executed).

    128. Defendant’s submissions at [43ff].

    129. CB 3538 at [14].

68. Second, Ronald contended that he paid off the loan provided by Erma Nominees in 1997. He said that between 1992 and 1997, in the presence of his mother, he gave his father “many cheques for various amounts” and told him that it was to “pay off the mortgage on the house”. [130] He was able to locate cheque book records from that period drawn in favour of and paid to Erma Nominees totalling $264,500.00. [131] He said that he wrote cheques on other cheque books but in the years since they had been destroyed or misplaced. [132] He said that he recalled the date of the last payment in August 1997 as he had just advised his parents that his son was moving back to Australia. [133] Ronald also explained that, prior to his departure from Australia in 2013, his brother Michael was his solicitor. He said that Michael never advised him to obtain a discharge of mortgage and he was not aware that a discharge was only lodged in November 2010 until he read Suzanne’s affidavit. [134]

    130. CB 3456 at [26].

    131. CB 3458 at [42].

    132. CB 3458 at [43].

    133. CB 3458 at [45].

    134. CB 3459 at [53].

69. In her second affidavit, Margaret said she recalled that Ronald and Deborah Huber received a loan of $500,000 to help them purchase a home in Towns Road, Vaucluse. She said she recalled “Ronny being very excited that he repaid the entire loan in 1997”. She said that this coincided with them being told that Deborah was returning to Australia with their grandson and Ronald stating he was making his last repayment. She recognised her signature on the mortgage discharge but stated that she could not recall when it was signed and the circumstances in which it was signed. [135] In cross‑examination, she reiterated that Ronald had paid of the mortgage to Erma Nominees when he announced that their grandson was returning. [136] I repeat the above assessment of Margaret’s evidence.

    135. CB 3519 to 3520.

    136. Tr 25/08/2021 p 174.

70. Regardless of whether Ronald’s evidence about paying off the mortgage is accepted or not, I do not accept that the fact that the proceeds of the cheque written by Mrs Wolff were deposited into an account in the name of Erma Nominees and a mortgage discharge was subsequently lodged on behalf of Erma Nominees over Ronald’s home assists the plaintiff’s case. There is no evidence from anyone associated with Erma Nominees concerning the discharge. As noted, Margaret could not recall signing the discharge and Andrew was not called. Whatever could be said about how much, if any, might have been owing under a mortgage in favour of Erma Nominees as at September 2010, the chance that it was the precise sum of $1,000,000.00 was virtually nil. Further, nothing about this transaction was arm’s length. Instead, every aspect of the transaction appears to be bound up in the then financial and personal relationships within the Binetter family. Even if the mortgage to Erma Nominees had been paid out in 1997, there may have been good reason to retain a mortgage on the title to Ronald’s home in favour of a related family company such as obtaining leverage in any potential family law dispute that might erupt in the future.

71. All this only highlights the problem noted above about drawing conclusions now about how family members acted then when their relationship with each other has changed so dramatically. Without evidence from someone with knowledge of Erma Nominees, or that as at late 2010 Ronald was aware that the mortgage was discharged, I am not prepared to draw any inference that the lodgement of the discharge makes it more likely that Ronald agreed to borrow $1,000,000 from Mrs Wolff in September 2010.

72. For his part, Ronald sought to rely on the distribution of the proceeds of the cheque by Erma Nominees as supporting his evidence about Michael and Andrew’s solicitation of him to obtain funds from Mrs Wolff. [137] A bank statement for Erma Nominees reveals that, prior to the deposit of the cheque written by Mrs Wolff, it had $8.60 in its bank account. [138] Three days after the deposit, an amount of $309,250.00 was distributed out of Erma Nominees to the Israeli bank account of another company associated with the Binetter family, being “BCI Finances”. On 23 November 2010, $364,247.66 was transferred from Erma Nominee’s account to an account of BINQLD Finances Pty Ltd (“BinQLD”) at the Israeli Discount Bank. [139] Andrew and Michael were Directors of BinQld.

    137. Defendant’s submissions at [6(c)].

    138. CB 3503.

    139. CB 3504, 3511.

73. This evidence does provide some support for Ronald’s version noted above but it cannot be taken too far for two reasons. First, because without knowing more about why Erma Nominees made these distributions, the premise underlying the reliance on this evidence namely that Michael and Andrew used the proceeds of the cheque from Mrs Wolff for their own purposes as opposed to, say, their own purposes and Ronald’s cannot be established. This again highlights the matter noted in [11].

74. Second, in one sense there is not as much difference as the parties suggested between the plaintiff’s version of the underlying transaction and Ronald’s version. On Ronald’s version his brothers enticed him to approach Mrs Wolff for a loan, and not a gift, for the “family” and specifically to assist Margaret because Mrs Wolff trusted him and not his brothers. However, if Mrs Wolff was advancing a loan because she was approached by someone she trusted, then it seems likely that she would agree that the borrower was that person even if he was using the funds to help others. Ronald bore no onus of any kind in this case to prove the existence of any alternative transaction to the plaintiff’s case. However, leaving that aside, if Mrs Wolff agreed to a loan “to”, or perhaps more accurately, “for” the “family” that only begs the question of who was in fact the borrower. If it was Ronald, then the use of the funds by Michael and Andrew for their own purposes would only serve to demonstrate that they misled him as Ronald asserted they did often. However, it would not undermine the suggestion that he borrowed funds from Mrs Wolff.

Risk to Margaret Binetter’s Home

75. The plaintiff sought to undermine Ronald’s evidence by adducing evidence that Margaret’s home was not at risk from any foreclosure by Investec Bank. [140] Two loan facilities between Investec Bank (Australia) Ltd and Ligon 158 were tendered, one dated 19 April 2005 for $2,000,000.00 [141] and the other dated 11 September 2007 for $7,000,000.00. [142] Various securities were proffered in support of the facilities including Erwin and Margaret’s home in Rose Bay. There were also tendered notices of assignments of the facilities dated July 2014 which record Investec assigning its rights and obligations under the facilities to what appears to be a related company, Investec Australia Loans Management Pty Ltd. [143]

    140. Plaintiff’s submissions at [35] to [40].

    141. CB 394.

    142. CB 326.

    143. CB 358 and CB 360.

76. I accept that this material is suggestive of there being no appreciable risk in 2010 of the enforcement of any security over Margaret’s home. However, there is no evidence that Ronald was aware of that. To the extent that there is evidence concerning Ligon 158, Erma Nominees, the Nudie Juice business and the financial affairs of the Binetter family generally in the period up to 2010 it is that Erwin, Michael and Andrew controlled them and that Ronald was not involved in their affairs and otherwise relied on Michael for advice. This aspect of the evidence did not add anything to my assessment.

Attendance at 7pm on 20 September 2010

77. Ronald adduced a body of evidence in an endeavour to demonstrate that he could not have attended at Mrs Wolff’s apartment at Darling Point at around 7pm on 20 September 2010 as testified to by Suzanne, and that he could not have deposited the cheque written by Mrs Wolff at a CBA Branch in Maroubra on the following day.

78. In his first affidavit he said that on that day he worked all day at his practice in Bankstown which was about 50 to 60 minutes’ drive from his home in Bellevue Hill. He said his usual practice had been to commence seeing clients at 7.30am. He annexed Medicare records demonstrating that he saw 65 bulk billed patients on that day. He estimated that he saw on average 10 private patients each day he attended at Bankstown. [144] He estimated that he left Bankstown at approximately 8.30pm and could not have arrived at Darling Point before 9.30pm. [145] He also claimed that on the following day he worked the whole day at his rooms in North Sydney.

    144. CB 3418 at [66] to [71].

    145. CB 3418 at [71].

79. Ronald was cross‑examined on this topic at length. [146] It was suggested that the records showed he saw 61 patients at Bankstown on 20 September 2010. [147] He agreed but added that he could have seen 10 or 15 private patients that day [148] , something he did not include in his affidavit. [149] Allowing for the fact that he had two consulting rooms, and adopting certain time estimates for the various types of consultations, it was suggested to him that, if he started work at 7.00am, he could have worked for 11 hours, finished work by 6.00pm and had sufficient time to drive to Darling Point by 7.00pm, something he did not accept. One difficulty with these calculations is that they assumed he could see two patients in the same time as he could see one if he had only one consultation room. [150] A similar exercise was attempted in relation to the following day in an endeavour to demonstrate that he could have left the rooms and driven to Maroubra. [151] This suffered from the defect that the calculations assumed he had two rooms at North Sydney whereas he had only one. [152]

    146. Tr 24/08/2021 at p132ff.

    147. Tr 24/08/2021 at p 135.23.

    148. Tr 24/08/2021 at p 135.38.

    149. Tr 24/08/2021 p 135.45.

    150. Tr 25/08/2021 at p 142.43.

    151. Tr 25/08/2021 at p145ff.

    152. Tr 25/08/2021 at p 146.38; Tr 25/08/2021 at p 189.15.

80. On behalf of Ronald, an affidavit was read from an orthoptist he employed in 2010 and still employs, Elizabeth Foote. Ms Foote annexed records indicating he saw 55 patients on 20 September 2010 at his Bankstown rooms whom he “bulk billed”. She stated that he commenced his working day at 7.00am every morning when he saw patients at his Bankstown rooms. [153] For the following day at North Sydney, she annexed records indicating he undertook 19 “initial specialist attendances” which took at least 30 minutes, and six “subsequent specialist attendances”, which would have totalled no less than two hours, and six consultations with patients after cataract surgery which would have taken around 30 minutes each. She estimated he worked a 12-to-13-hour day on 21 September 2010. [154]

    153. CB 3525 (Elizabeth Foote 27.04.2021 at [13] to [14]).

    154. CB 3525 (Elizabeth Foote 27.04.2021 at [23] to [25]).

81. In her evidence‑in‑chief and in cross‑examination, Ms Foote consistently stated that for Ronald’s attendances at his Bankstown rooms he would usually commence work from 7.00am and finished about “6 to 7o’clock”. [155] When pressed on whether he could have concluded at 6.00pm she stated “[i]t is possible, but that’s [ie, 20 September 2010] a very busy day, I’d say it’d probably be more towards 7”. [156]

    155. Tr 25/08/2021 p 185.15, 185.25, 185.33.

    156. Tr 25/08/2021 p 185.32.

82. The plaintiff’s submissions took up the arithmetic approach that was raised with Ronald in cross‑examination. By reference to estimates of the times for each procedure they sought to demonstrate that Ronald could and probably did leave his Bankstown rooms before 6.00pm and was able to navigate heavy traffic to be at Darling Point by 7.00pm as stated by Suzanne in her evidence. [157] I found this analysis to be of little assistance resting as it did on generalised assumptions about how long attendances took and halving the total estimate of time he spent with patients on 20 September 2010 because there were two consulting rooms at Bankstown.

    157. Plaintiff’s submissions at [45] to [59].

83. Instead, I was impressed by Ms Foote’s evidence about the likely time Ronald departed based on her recollection of what the relevant number of patients meant in terms of how busy the practice was and the fact that Ronald’s departure coincided with hers. The effect of her evidence is that it is likely that Ronald departed sometime after 6.00pm and before 7.00pm, and more towards 7.00pm than 6.00pm. In turn, based on that, I consider it very unlikely that Ronald arrived at Darling Point at 7.00pm but reasonably likely that, if he did travel there, he arrived sometime between 7.30 and 8.00pm in that it is likely that traffic might have eased the later he left after 6.15pm. In the end result, however, while undermining the exactitude of Suzanne’s recollection, this evidence otherwise adds little to my assessment of the facts which is principally based on Ronald’s handwriting on the cheque butt and not on the precision of Suzanne’s recollection. Otherwise, for the sake of completeness, I record that I am not satisfied that Ronald personally attended at the Maroubra Branch of the CBA on 21 September 2010.

Findings about the Loan

84. I have already noted my concerns about Suzanne’s evidence, my misgivings about Margaret’s evidence and my assessment of Ronald’s demeanour. I have found the parties’ reliance on the surrounding financial circumstances of little assistance. I do not accept that it is likely that Ronald could have attended at Mrs Wolff’s Darling Point home at 7.00pm. However, based on Ms Foote’s evidence, I accept it was likely he could have attended from around 7.30pm.

85. There remains to consider the results of Ms Holt’s handwriting and document analysis. Ms Holt’s assessment of the Ronald’s handwriting and the writing on the cheque butt strongly points to a conclusion that it is his handwriting on the cheque butt. Ronald accepted that the words written next to “payee” looked like his handwriting. As noted, the entire cheque book was tendered. It included a series of cheque butts that bore dates and amounts that corresponded with debits to Mrs Wolff’s bank account around that time. For the cheque butt to be a forgery, then the forgery must have either been perpetrated as at September 2010 when a cheque was handed to someone other than Ronald or forged later (and of such a quality to pass muster with Ms Holt). Leaving aside that no allegation of forgery was put to Suzanne, even though it would seem inevitable that such a forgery would either have to been perpetrated by her or undertaken with her knowledge, a forgery perpetrated in 2010 when family relations were such that family dinners were being held seems especially heinous and unlikely. A forgery perpetrated later could have only occurred if the cheque butt was serendipitously left blank in 2010, another circumstance that seems extremely unlikely. Bearing in mind Ms Holt’s evidence and the possible competing explanations, I am satisfied that Ronald completed the handwriting on the cheque butt against payee (and the amount written against “Chq” and “Date”).

86. Once that fact is accepted, then I am driven to a finding that Ronald borrowed $1,000,000 from Mrs Wolff in September 2010 and received a cheque from her for that moment. On behalf of Ronald, it was submitted that an explanation for how those words came to be written lay in the answer set out at [60] above namely that on numerous occasions he signed documents as requested by his brothers because he trusted them. [158] However, it is one thing for Ronald to say he executed, say, commercial documents because he trusted his brothers. It is a completely different scenario for Ronald to have signed that he received a $1,000,000 loan from his aging and sick aunt on a cheque butt in her cheque book if that was not true. Ronald was and is highly intelligent. The existence of a loan, like all contracts, is to be ascertained by an objective assessment of the communications between the putative borrower and lender, in this case Ronald and Mrs Wolff (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [40]). I cannot conceive of any realistic scenario in which Ronald was manipulated to write those words on the cheque butt if he was not in fact receiving a cheque from Mrs Wolff and she was not told by him or in his presence that the borrower was the nephew she trusted, namely him. As discussed above, it may be that Ronald was manipulated into obtaining the loan by his brothers or that the proceeds of the loan were utilised by them or both. However, that is irrelevant to his contractual arrangements with Mrs Wolff.

    158. Defendant’s written submissions at [16].

84. Although it is not strictly necessary to decide, having accepted that he completed the cheque butt I am also satisfied that he signed the Loan Acknowledgement. Ms Holt’s evidence suggests that his signature on that document was completed with a different pen to that of Mrs Wolff’s and Suzanne’s signature ([54]). However, Suzanne only stated that she “believed” it was completed by all three of them using the same pen ([20]). In any event I have placed little weight on her precise recollections of the events surrounding the distribution of Mrs Wolff’s funds. I take the same approach in relation to the balance of her evidence concerning the entry into of the loan including the conversations set out above ([13] and [15]). I am left uncertain as to whether Ronald’s conversations with his brothers as set out in [42] to [43] occurred. I reject his evidence to the extent he denied signing the cheque butt, signing the Loan Acknowledgement, receiving the cheque or obtaining the loan.

85. In deference to the careful and detailed submissions of Senior and Junior Counsel for Ronald, Mr Sirtes SC and Mr O’Neill, I will address the remainder of their submissions on this issue.

86. First it was contended that the plaintiff’s evidence was inconsistent with the pleaded case. [159] Thus, it was contended that the plaintiff’s evidence does not establish that the pleaded allegations that $1,000,000 was advanced on “commercial terms” as a result of “discussions” on 20 September 2010 and for payment of interest as commercial rates. [160] For my part I am not sure what is meant by “commercial terms” and agree that there is no evidence of any discussions on 20 September 2010 that led to the loan but I do not consider that any of those allegations are crucial to the establishment of the allegation in paragraph 3A of the Statement of Claim set out below. It was also submitted that it was not established that the amount advanced was paid to or “at the direction of the Defendant” as pleaded or, in the alternative, that it was paid to Erma Nominees or, alternatively Margaret at Ronald’s direction. [161] I am not in a position to make a finding that Ronald inserted either Erma Nominees or his own name as the payee in the cheque and I am also not satisfied that he personally deposited the cheque into Erma Nominees’ account. Nevertheless, I am satisfied that he received the cheque. In those circumstances I am satisfied that it was paid to him or at his direction. Given that he received the cheque and it was deposited into Erma Nominees account the following day I infer that it was paid to Erma Nominees at his direction.

    159. Defendant’s written submissions, section A.

    160. Defendant’s written submissions at [1].

    161. Statement of Claim at [1A] and [1B]

87. The critical allegation in the statement of claim is that:

“On or about 20 September 2010 the plaintiff advanced the defendant the Principal sum in accordance with the loan agreement.” [162]

162. Statement of Claim at [3A].

91. The defendants submit that this allegation fails if (all) the anterior allegations about the loan agreement fail and the allegation that the funds were “advanced” also fails. [163] I do not accept this submission. The above findings are sufficient to find that there was an agreement for a loan and the funds were “advanced” in the sense that a cheque for $1,000,000.00 was handed over. That is sufficient.

    163. Defendant’s submissions at p 2.3

92. Second, Mr Sirtes SC made a number of submissions which invoked the evidence of the surrounding circumstances including the evidence as to the timing of Ronald’s attendance, [164] the incongruity of much of Suzanne’s evidence in that, for example, she did not attribute any words to Ronald from the time he attended at the front door, [165] Ronald’s lack of need for the funds [166] and the distribution of the funds by Erma Nominees. [167] It was contended that the events in the Plaintiff’s case do not make sense in that Ronald did not deposit the cheque at the Maroubra Branch of the CBA and there was no reason for Ronald to arrange to meet Mrs Wolff after a busy day at his Bankstown rooms.

    164. Defendant’s submissions at [6(a)].

    165. Defendant’s submissions at [6(b)].

    166. Defendant’s submissions at [6(c)].

    167. Id.

93. All these points have their force, but they also have their limits. I have already referred to the burden of proof borne by the plaintiff in proving the existence of the loan. The discharge of that burden does not require the resolution of every factual puzzle or conundrum raised by the evidence and that is especially so when due to the passage of time an assessment now of how and why people may have behaved then is very difficult. Otherwise, these points can be addressed as follows. I have not made findings that rely on Suzanne’s version of events about the loan agreement except and unless they are supported by what follows from the evidence of Ronald signing the cheque butt. As for Ronald’s lack of need for funds, on his version it was not suggested that he had such an excess of funds that he offered to alleviate the pressure on Margaret’s mortgage. Otherwise, as discussed above, just because he may have borrowed the funds from Mrs Wolff does not mean that he needed or wanted the funds for himself. The fact that he caused the cheque to be deposited into Erma Nominees account follows as a matter of inference from the finding that he loaned the funds from Mrs Wolff, received the cheque and it was deposited into Erma Nominees account the next day. This reasoning does not require a finding that he gave the cheque to Andrew and I do not make that finding. No question of applying the reasoning in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (or Shalhoub v Buchanan [2004] NSWSC 99 at [71]) applies on the findings I have made.

94. Third, it was also submitted that there was a failure of consideration in that no money passed or was ever received by Ronald. [168] If this submission is a denial that he ever received a cheque for $1,000,000.00 from Mrs Wolff, then it is had already been addressed and rejected. Otherwise, the receipt of a cheque, even if it was made out to Erma Nominees at his direction or by his writing, is sufficient consideration.

    168. Defendant’s submissions at [34].

95. Accordingly, the plaintiff has discharged it onus of proving that Ronald borrowed $1,000,000.00 from Mrs Wolff.

Disability - Principles

96. It was common ground that the limitation period for the loan as contended for by the plaintiff commenced to run from the date of the advance (Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566; [1956] HCA 51) and would have otherwise expired on 20 September 2016. [169] However, the plaintiff relies on s 52 of the Limitation Act 1969 which, relevantly for this case, operates to suspend the “running of the limitation period” for a person’s cause of action for a person under a disability for the “duration of the disability”. Subsection 11(3) defines disability as follows:

    169. Tr 23/08/2021 at 11.14.

For the purposes of this Act a person is under a disability--

(a)   while the person is under the age of eighteen years, or

(b)   while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of--

(i)   any disease or any impairment of his or her physical or mental condition,

(ii) …

(iii) …

(iv) …” (emphasis added)

97. In Kotulski v Attard [1981] 1 NSWLR 115 at 117-18, Slattery J observed that a “mental condition” as used in this definition was “a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings” and “is meant to cover the mind’s activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment.” His Honour observed that it is relevant “to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs” in that “a reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action.”

98. Sub-section 11(3)(b) was addressed by Campbell JA, with whom Basten JA and Handley JA agreed, in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [140] (“Guthrie”) as follows:

“In the context in which it occurs in section 11(3)(b), the relevant “affairs” are ones in relation to a particular cause of action. In a general sense, managing one’s affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action.” (emphasis added)

99. This passage highlights that the inquiry is litigation specific as subsection 11(3)(b) refers to the management of his or her affairs in relation to the cause of action in question. This serves to “divide off, from the whole ambit of the person’s affairs, those that are affairs in relation to the cause of action” (Guthrie at [154] and [159]). Further the impairment must be substantial; “it needs to be an impediment that has interfered with the ability of the plaintiff to commence the action within time to an extent sufficient to warrant the suspension of the limitation period” (Guthrie at [152]).

100. The above extract from Guthrie identifies a number of aspects of the concept of managing one’s affairs “in relation to the cause of action” the subject of the proceedings. However, an assessment of whether someone is substantially impeded in the management of those affairs is not answered by simply isolating each such component and asking whether the litigant could or could not undertake that step (State of New South Wales v Harlum [2007] NSWCA 120 at [92] to [93] per Beazley JA with whom Tobias JA agreed, at [100]). Instead, the relevant inquiry is whether overall the person claiming to be under the relevant disability is able to “reason normally” in the sense discussed in Kotulski (Harlum at [92] citing Kotulski at 118; see [97])). Further, the inquiry is not just limited to whether they can simply decide to instruct a lawyer and provide instructions, it extends to whether they have the “willpower to engage in all that is required to commence an action because of that person’s mental condition” (Harlum at [95]).

Disability - Evidence

101. In seeking to discharge its onus of proof in relation to the suspension of the limitation period, the plaintiff relied on a combination of: evidence from Suzanne as to her observations of Mrs Wolff over time; a large volume of medical and hospital reports and evidence from a specialist in rehabilitation medicine, Dr Luba Eikens.

Suzanne Binetter’s Observations

102. I have already summarised the evidence given by Suzanne concerning her discussions with Mrs Wolff about the loan to Ronald and the events surrounding the commencement of these proceedings ([25] to [31] and [34] to [38]). As I will explain, that evidence, which in light of my finding about the loan I accept, is of particular significance to a determination of this part of the case.

103. In her second affidavit, [170] Suzanne set out various observations of Mrs Wolff’s medical condition and cognitive functioning during the period 2010 to 2018. She said that while she travelled overseas during this period, she spent the majority of her time in Australia. Suzanne said that while she was in this country visit Mrs Wolff on average two or three times per week. [171]

     170. Affidavit of Suzanne Binetter sworn 22 June 2020, CB 268.

     171. CB 270 at [8] to [9].

104. Suzanne said that as at September 2010, Mrs Wolff had difficulty in walking, hearing, complained her food was tasteless, had limited vision and only chose to read when it was “absolutely necessary such as reading an item to which her signature was required.” [172] Suzanne stated that she sat next to Mrs Wolff at meal times to assist her with cutting up her food. [173] Suzanne stated that during 2011 and 2012 aspects of Mrs Wolff’s behaviour became erratic with her sometimes buying an item and then requiring it be returned. [174] She also described Mrs Wolff as becoming “noticeably forgetful”. [175]

     172. CB 271 at [14(e)].

     173. CB 274 at [19].

     174. CB 273 at [18].

     175. CB 274 at [20].

105. Suzanne said that during 2013 Mrs Wolff’s health continued to deteriorate, especially her hearing, eyesight and continence. [176] She described continued deterioration of these faculties in 2014 and 2015. Further, she described instances of apparent memory failure in 2014 and 2015 where she forgot conversations soon after they occurred. [177]

     176. CB 276 to 277.

     177. CB 278 at [32] and [41].

106. Suzanne also described an incident in 2015 where Mrs Wolff conveyed seeing hallucination such as “elephants walking up the wall”[178] and in 2016 and 2017 where she insisted on being taken to the police station to have her identity confirmed. [179] According to a discharge summary, on 29 August 2016 Mrs Wolff was admitted to St Vincent’s Hospital and presented with “confusion and visual hallucinations” including that she “could see people in a swimming pool and things on the wall”. The principal diagnosis was “Delirium/Dementia” and under the heading “Dementia”, the notes stated that she was “cognitively impaired with rigid thought process”. [180]

     178. CB 283 at [46].

     179. CB 284 at [52] and [57].

     180. CB 261 at 262; CB 1539.

107. Suzanne recounted similar instances of failing to remember conversations during 2017. [181] As for 2018, Suzanne stated[182] :

“In 2018 Ida was essentially bedridden and was essential[y] non-communicative. Her sustenance was poor as she refused to eat most of the meals which were prepared for her.”

181. CB 286.

182. CB 287 at [62].

108. Mrs Wolff was hospitalised on 9 May 2018 and entered respite care on 20 May 2018. Suzanne said that when she visited Mrs Wolff thereafter, she was mostly “non-responsive to communication”. [183]

     183. CB 287 at [65].

Ronald Binetter’s Observations

109. In cross‑examination, Ronald agreed that when he filed his guardianship application, he was concerned that Mrs Wolff was being manipulated and was concerned about her ability to manage her own affairs. [184]

     184. Tr 25/08/2021 at p 149.35.

Medical and Hospital Reports

110. As noted, the plaintiff tendered a substantial amount of primary health records including doctor’s reports concerning Mrs Wolff. They are best described by reference to Dr Eiken's description of the material allowing for the defendant’s contention that she did not fully describe the content of the critical reports.

111. Hence, Dr Eikens noted that prior to 2010, Mrs Wolff was documented as a variety of conditions include bilateral macular degeneration and glaucoma, chronic hypertension, breathlessness on exertion since 2002, hearing impairments, [185] non-Insulin dependent diabetes mellitus type and the effects of transient ischaemic attack. [186] During the period from 2010 to 2018, she suffered from those conditions but was also assessed as suffering from visual hallucinations, [187] transient dysphasia and confusion upon an admission to St Vincent’s Hospital in October 2014 [188] . Dr Eikens also noted that Mrs Wolff was admitted to St Vincent’s Hospital in May 2016 with urinary tract infection, delirium, and ongoing confusion, [189] and an admission to St Vincent’s Hospital in August 2016, with delirium [190] . In addition, I note that in May 2015 Mrs Wolff was found by a carer on the floor after she hit head while falling over at home [191] and in March 2016 was admitted to hospital with delirium which was diagnosed as secondary to urinary tract infection. [192]

     185. CB 738, 814.

     186. CB 824.

     187. CB 1816.

     188. CB 1212, 1217, 1221.

     189. CB 1459.

     190. CB 1571.

     191. CB 1303; Plaintiff’s submissions at [72(b)].

     192. CB 1819; Plaintiff’s submissions at [72(c)].

112. In her first report, Dr Eikens compared various CT brain scans undertaken on Mrs Wolff in 2009, [193] 2014 [194] , May 2016 [195] and May 2018. [196] From those reports, Dr Eikens concluded that: [197]

“In summary, CT Brain scan in 2014 documented progression of cerebrovascular disease from 2009 with right occipital infarct not present in 2009. From 2014 to 2018 CT brain scan reports suggest that findings of brain imagining remained stable with old left parietal and right occipital lobe infarcts as well as chronic microvascular disease within the deep white matter. Although the extent of white matter hyperintensities was not quantified, it is likely that the degree of microvascular disease also progressed from 2009.” (emphasis added)

193. CB 1922.

194. CB 1920.

195. CB 1915.

196. CB 1912.

197. CB 440.3.

113. In cross‑examination, Dr Eikens accepted that the results of a study that she annexed to her report [198] did not find any association between “white matter hyperintensities” (“WMH”) and impaired executive functioning (although Dr Eikens added that there are other aspects of cognition). [199] Dr Eikens accepted that WMH severity is associated with, inter alia, a decline in memory, attention and global cognition but that needed to be assessed in respect of the location where the WMH severity is detected. [200] Dr Eikens conceded that she did not have any information as to the location of the WMH or even which side of Mrs Wolff’s brain it was located [201] although the absence of that information did not cause her to change her opinion. [202]

     198. CB 444.

     199. Tr 24/08/2021 p 89.10.

     200. Tr 24/8/2021 p 89.45.

     201. Tr 24/08/2021 p 90 to 91.

     202. Tr 24/08/2021 p 91.15.

114. Dr Eikens placed particular emphasis on the evidence of the various assessments of Mrs Wolff’s cognitive impairment that were undertaken over the years. She acknowledged that the notes of Mrs Wolff’s general practitioner, Dr Terkasher, for the period from 27 June 1990 to 30 August 2018 [203] did not refer to symptoms suggestive of cognitive dysfunction (apart from certain references to mood changes of depression in 1998, 2001 and 2018.) However, Dr Eikens also referred to an assessment undertaken on 3 February 2015 by a neurologist, Dr Jankelowitz, and on 15 June 2016 by a geriatrician Dr Tim Foley at St Vincent’s Hospital, both of which were undertaken in the context of Mrs Wolff suffering visual hallucinations.

     203. CB 711-729, 766-810 and 846-904.

115. With Dr Jankelowitz, Dr Eikens recorded that she “attempted to perform a Mini-Mental State Examination (MMSE) which was limited due to Ms Wolff’s visual impairment, poor hearing and language barrier” [204] but that “Dr Jankelowitz concluded that Ms Wolff scored 18/25 (consistent with mild-moderate dementia)”. In addition, Dr Jankelowitz concluded: [205]

“In summary these visual hallucinations may reflect dementia or a urine infection. The other possibility is that they could be occipital seizures but are a little frequent for seizures.”

204. CB 730.

205. CB 731.

116. In his report, Dr Foley noted that due to Mrs Wolff’s cognitive and hearing deficits he was unable to take a full history. He noted that she was recently admitted to hospital with worsening visual hallucinations and was diagnosed with delirium secondary to a “presumed” urinary tract infection although no bacteria was cultured. [206] Dr Foley concluded: [207]

“On review [Mrs Wolff] scored 6/17 on MoCA-blind with no evidence of superimposed delirium. She had no signs of psychosis i.e. thought disorder, delusions or auditory hallucinations and has excellent insight. There was no evidence of melancholic depression.

In summary, Mrs Wolff’s visual hallucinations appear in keeping with Charles Bonnett Syndrome AKA Visual Release Hallucinations…“ (emphasis added)

(Charles Bonnett’s syndrome is the description of visual hallucinations caused by the brain's adjustment to significant vision loss).

206. CB 1837.

207. CB 1838.

117. These reports referred to the “MMSE” and “MoCA” cognitive impairment tests. Dr Eikens said that these tests are usually administered to detect mild cognitive impairment or early dementia rather than moderate or severe dementia. Dr Eikens said that a score of less than 10/22 on the MoCA-Blind scale suggests severe cognitive impairment and a score of 18-23/30 on MMSE examination refers to moderate memory loss and disorientation, impaired problem solving, mild impairment in personal care, impairment of complex tasks.

118. Dr Eikens was cross‑examined on the limitations on these assessments. I derived a considerable advantage from viewing her evidence in cross‑examination. She accepted that they “incorporate few, if any, adjustments for the patient’s age or level of education”. [208] She accepted that Mrs Wolff had limited education and she was unsure whether the MoCa blind scale was adjusted for Mrs Wolff’s education level [209] because she was not provided with the results of the tests that were administered. [210] Dr Eikens also accepted that both of these tests are “less sensitive in detecting longitudinal decline in cognition than formal neurological psychological testing”. [211] Dr Eikens described the MMSE as a “non-specific tool” that was originally designed to assess mild cognitive impairment”. [212] She accepted that a diagnosis of dementia cannot be made on the basis of a score alone and that a detailed history was “fundamental”. [213] However, Dr Eikens did not accept that she needed the answers given by the patient considering that “one would rely on the score”, [214] although critically she added: [215]

“… If I have a patient that I can assess in person, then I would confirm or evaluate myself whether or not I consider the report is accurate. In other words, I personally tend to do my own cognitive assessment factoring the various patient disabilities.”

208. Tr 24/08/2021 p 92.8.

209. Tr 24/08/2021 p 93.49.

210. Tr 24/08/2021 p 94.4.

211. Tr 24/08/2021 p 94.25.

212. Tr 24/08/2021 p 95.34.

213. Tr 24/08/2021 p 96.19.

214. Tr 24/08/2021 p 97.10.

215. Tr 24/08/2021 p 97.16.

119. In addition to the above reports, in September 2016 another geriatrician, Associate Professor Gonski, also examined Mrs Wolff to determine the reason for her hallucinations. He recorded her as having very poor vision, a left facial droop and left arm weakness. [216] He concluded: [217]

“Mental state testing showed that she was completely orientated. Short term memory was a little impaired. It was impossible to fully examine her from this point of view due to her visual abnormalities.

…

There has been a suggestion that she has Charles Bonnett syndrome due to her poor visual acuity. I think this unlikely since the two episodes of hallucinations are far apart. Given her neurological signs I suspect she has had a vascular episode. This has probably caused delirium.

…

My overall impression is that she has a mild vascular dementia which [has] recently deteriorated due to her delirium secondary to cerebrovascular disease and that her condition may improve a little with time.”

216. CB 756.

217. CB 757.

120. As noted, this report was prepared in September 2016. In cross‑examination, Dr Eikens stated that in her opinion, Mr Wolff’s cognition deteriorated gradually between 2016 and 2018. However, Dr Eikens was taken to a further report of Associate Professor Gonski dated 17 May 2017 [218] which referred to Mrs Wolff as “going along fairly well” and “[c]ognitively she is much the same”. Dr Eikens agreed that suggested that Mrs Wolff’s condition was stable in that period. [219]

     218. CB 755.

     219. Tr 24/08/2021 p 102.20.

121. In her second report, [220] Dr Eikens referred to a report of another geriatrician, Associate Professor Rosenfeld, who examined Mrs Wolff in August 2012 in the presence of Suzanne. [221] Professor Rosenfeld described Mrs Wolff as having given a reasonable account of her personal history although Suzanne helped. He described Mrs Wolff as concerned about her deteriorating eyesight and having had episodes of hallucinations. Associate Professor Rosenfeld opined that it was “hard to know whether the [hallucinations were] true hallucinations or rather the effect of her worsening blindness”. Dr Eikens also noted that Associate Professor Rosenfeld performed a MMSE on Mrs Wolff which yielded a score of 15/24 which Dr Eikens described as indicative of “mild-moderate dementia” and consistent with the score determined by Dr Jankelowtiz. [222]

     220. CB 502.

     221. CB 3265.

     222. CB 505.

Dr Eikens Conclusion

122. In her first report, Dr Eikens concluded as follows: [223]

“In summary, from available documentation, up to and including 2009-2010 Ms Wolff had no clinical evidence of significant cognitive impairment but based on neuroimaging findings it is most likely she had some degree of cognitive impairment. Whether she would have been able to understand legal advice and provide sufficient instruction to a lawyer prior to 2010 cannot be determined from the records. From October 2014 and early 2015 it is likely that Ms Wolff had significant cognitive impairment which [would] most likely have hindered her understanding of complex legal issues. However, from 5^th May 2016 until her death in September 2018 Ms Wolff would most likely have had severe impairment in her ability to manage and/or control her own affairs based on CT brain scan findings, her frequent episodes of delirium/confusion, cognitive function testing as well as impaired self-care and mobility.” (emphasis added)

223. CB 441.10.

123. In her second report, Dr Eikens modified this conclusion based on Associate Professor Rosenfeld’s report such that the conclusion about suffering “significant cognitive impairment” from October 2014 was extended back to August 2012. [224] In cross‑examination, Dr Eikens confirmed that her conclusion that from 2016 Mrs Wolff had a severe impairment, amounts to a “more significant impairment” than Associate Professor Gonski’s assessment of “mild vascular dementia”. [225] She stated that the difference in her opinion was due to the above assessments, although she conceded they had to be treated with caution given the other difficulties that Mrs Wolff faced when those assessments were conducted. [226] Dr Eikens also nominated as a factor the deterioration in ability to self-care and mobilise in that period although she accepted that there is “no way of knowing” whether that was indicative of cognitive impairment. [227]

     224. CB 506.

     225. Tr 24/08/2021 p 102.43.

     226. Tr 24/08/2021 p 103.23; p 104.11.

     227. Tr 24/08/2021 p 103.34 to .50.

Disability Finding

124. I have set out above the principles applicable to a determination of whether the limitation period is suspended under s 52 of the Limitation Act. In Mrs Wolff’s case the relevant “disease or …. impairment of … her physical or mental condition” is all of her conditions described above including her impaired vision and the various manifestations of cognitive impairment including apparent memory failure, periodic episodes of hallucinations and delirium or confusion. That said, the contemporaneous reports were not consistent in describing the cause of cognitive impairments, with the various suggestions being Charles Bonnett’s syndrome (see [116]), urinary tract infections, dementia ([115]) and vascular dementia ([119]).

125. The plaintiff’s submissions pointed to Mrs Wolff’s impaired eyesight since 2010, her reliance on Suzanne in looking after her financial and personal affairs, the hospital records concerning her lack of mobility and need for a carer, her age in 2016, Suzanne’s evidence of her observation of Mrs Wolff noted above and the various medical reports. ^[228] Its primary submission was that “in light [of] the opinion of Dr Eikens that from October 2014 to early 2015 Mrs Wolff had significant cognitive impairment and that would have rendered her unable to understand complex legal issues [involved in] suing [Ronald] for $1,000,000.00”. ^[229]

     228. Plaintiff’s submissions at [81].

     229. Plaintiff’s submissions at [82].

126. One of Mr Sirtes SC’s submissions was that, as a general proposition, the Court should be more guided by the lay evidence rather than the expert evidence. ^[230] He cited Drivas v Jakopovic [2019] NSWCA 218 which concerned testamentary incapacity in support of that proposition. However, Drivas did not lay down such a sweeping proposition. Instead, it was an example of a case where the limitations on the expert evidence were such that the trial judge was justified in affording it less weight (at [65]).

     230. Defendant’s submissions at [56(b)].

127. In this case, it is necessary to identify the limitations on Dr Eiken’s report. First and foremost, Dr Eikens never saw Mrs Wolff. Instead, the reports of those who did do not provide much support for the plaintiff’s contention. Her general practitioner who saw her regularly did not discuss cognitive dysfunction ([114]). Dr Jankelowitz’s report in 2015 suggest her hallucinations “may” have been the result of “mild-moderate dementia” ([115]). In his report dated February 2016, Dr Foley preferred a diagnosis of Charles Bonnet syndrome and described her insight as “excellent” ([116]). Associate Professor Gonski’s September 2016 report went no further than suggesting she had “mild vascular dementia” ([119]) and reiterated that in May 2017 ([120]).

128. Second, of particular significance to this matter is that Dr Eiken’s conclusion noted above is not calibrated to so much of s 11(3) that requires the test of incapacity or being substantially impeded address the management of the person’ affairs in relation to the particular cause of action; an inquiry the importance of which is reiterated by the authorities discussed above. Instead, Dr Eiken’s conclusion opines on Mrs Wolff’s understanding of “complex legal issues”. This concept was not elaborated upon but whatever can be said about this case, the legal issues involved are not “complex”. Mrs Wolff is said to have lent Ronald money and he did not pay it back. It would not require much sophistication to reason normally about the matters relevant to a potential cause of action involving the loan to Ronald, nor to understand and consider advice about the loan and to give instructions about any such action (Kotulski at 118 cited in Harlum at [92]).

129. As noted, Suzanne gave evidence of her observations in relation to Mrs Wolff’s deteriorating cognitive functioning and general impairments generally. However, her evidence concerning Mrs Wolff’s understanding and capacity to manage her affairs in relation to the particular cause of action the subject of these proceedings is all the one way. Suzanne said that from 2010 to 2013 Mrs Wolff repeatedly raised with her the loan to Ronald and the fact that it was not paid back. When the topic was raised with her again in April 2018 by Mr Secivanovic, Mrs Wolff understood precisely what was being asked of her and provided clear instructions for its recovery. The absence of any discussion about the outstanding loan in the intervening period is explicable on the basis of Suzanne’s failure to provide any meaningful response to Mrs Wolff’s repeated queries. In addition, there is Suzanne’s evidence that her response about the necessity to obtain legal representation was to inquire about the cost of doing so ([34]); that was a perfectly rational response.

130. Consistent with Guthrie at [140] and Harlum at [92], an assessment of whether Mrs Wolff was under a relevant disability is not confined to whether she could answer the three questions posed of her by Suzanne or understood that there would be costs involved in the litigation. However, the onus of proving that she was relevantly disabled rested on the plaintiff. Beyond Suzanne’s evidence of her discussions with Mrs Wolff about the recovery of the loan, there was no evidence adduced of any attempt to take instructions from Mrs Wolff in relation to this litigation or any assessment of her degree of impairment calibrated to what is required by this litigation.

131. Mr Sirtes SC went further and sought the drawing of a Jones v Dunkel inference in relation to the failure of Mr Secivanovic to give evidence on this topic. As noted, Mr Secivanovic met Mrs Wolff in the absence of Suzanne and then all three had a “general discussion” which included recovery of the loan to Ronald. The drawing of a Jones v Dunkel inference from a solicitor’s failure to give evidence about what was arguably a privileged conversation is problematic and I decline to draw it. Nevertheless, the absence of evidence from him or anyone else who may have attempted to speak to Mrs Wolff about the cause of action to assess her capacity and willingness to take the various steps identified in Guthrie simply highlights the difficulties for the plaintiff in discharging its onus of proof on this issue.

132. Instead of attempting to adduce evidence directed to Mrs Wolff’s ability to manage her affairs in relation to the cause of action the subject of these proceedings, the plaintiff sought to discharge the onus of proof by relying on Dr Eiken’s evidence. Her evidence has largely been addressed. As noted, her evidence was not calibrated to what might be required of someone to reason normally about the recovery of a loan, understand and consider advice or give instructions for its recovery.

133. Further, Dr Eiken’s ultimate conclusion set out above identifies the basis for its conclusion as the results of the CT scans, Mrs Wolff’s frequent episodes of delirium/confusion, her cognitive function testing and her impaired self-care and mobility. The limitations on Dr Eikens ability to form conclusions from the CT scans and the cognitive function testing have already been addressed (at [113] and [118]). Further, I do not accept that Mrs Wolff’s impaired ability to care for herself and mobility adds much to the assessment in relation to this case. Mrs Wolff had a great deal of personal assistance available to her especially in the form of Suzanne. Her physical limitations barely affected her capacity to manage her affairs in relation to this case. As for her delirium, confusion and hallucinations, that must be seen in the context of the contemporaneous assessments of the doctors who reported on those conditions. While those assessments raise potential concerns about her ability to manage her affairs generally for particular periods, neither they, Dr Eikens evidence or Suzanne’s evidence have satisfied me that on or after September 2010 Mrs Wolff’s capacity to “reason normally about the matters relevant to [her] potential cause of action, to understand and consider advice, and to give instructions about any action” was substantially impeded for a sufficient period to extend the limitation period for the cause of action until 28 May 2018 (Harlum at [92]; Kotulski at 118).

134. The plaintiff has not discharged its onus of proof in relation to the suspension of the limitation period. The plaintiff’s action is time barred.

135. For the sake of completeness, I note that Mr Sirtes SC submitted that the plaintiff’s contention that the limitation period was suspended should have failed at the outset because, throughout the relevant period, Mrs Wolff had executed two enduring powers of attorney on Suzanne and Margaret such that there was never any impediment to the proceedings being commenced. ^[231] No authority was cited in support of that submission and I doubt its width. It is not necessary to consider it further as, without considering the effect of the powers of attorney, the plaintiff has not discharged its onus of proof.

     231. Defendant’s submissions at [56(a)] and [57] to [60].

Conclusion

136. Ronald’s defence also pleaded a claim that the plaintiff was estopped from recovering the loan because the executors of Mrs Wolff’s estate knew or ought to have known that the proceeds of any loan were for the benefit “Andrew Binetter and/or Margaret Binetter”. ^[232] This was not pursued at the hearing.

     232. Defence at [10] to [14].

137. It follows from the conclusion that the action to recover the loan is time barred that the proceedings must be dismissed.

138. I will direct the parties confer on costs but failing agreement I will make orders for the exchange of competing orders and short submissions. On receiving the submissions, I will determine whether any argument over costs can be dealt with on the papers without a further oral hearing.

139. Accordingly, the Court orders that:

1. The proceedings be dismissed;

2. Direct the parties to confer within seven days in relation to the appropriate orders as to costs;

3. In the event that agreement is reached on the appropriate orders as to costs, the parties to file the proposed orders on or before 5.00pm on 15 October 2021;

4. In the event that no agreement is reached on the appropriate orders as to costs, each party to file and serve:

   1. their proposed orders as to costs and any submissions in support of the proposed order that are not to exceed four pages on or before 22 October 2021;

   2. any submissions in reply that do not exceed four pages on or before 29 October 2021.

**********

Endnotes

Amendments

14 February 2022 - [2] - the word "from" added after "borrowed".

Decision last updated: 14 February 2022