Kordovoulos v Dixon-Hughes

[2021] NSWSC 722

Supreme Court

New South Wales

Medium Neutral Citation:

Kordovoulos & Anor v Dixon-Hughes & Ors [2021] NSWSC 722

Hearing dates:

1 February, 11 and 12 March, 21 May 2021

Decision date:

18 June 2021

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See paras [276]-[279]

Catchwords:

EQUITY — Trusts and trustees — Resulting trusts — Constructive trusts — whether monies, the proceeds of the sale of a home, were given as a gift or to hold on trust for an unspecific indefinite period

RESTITUTION — Nature of restitutionary liability — Unjust enrichment — no operation of unjust enrichment in absence of specific pleaded case entitling restitution

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662

Australian Financial Services and Leasing Pty Ltd v Hills Industries (2014) 253 CLR 560

Barnes v Addy (1874) LR 9 Ch App 244

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269

Briginshaw v Briginshaw (1938) 60 CLR 336

Calokerinos (Executor of Estate of Sclavos v Yesilhat) [2017] NSWSC 666

Colombini v De Berigny [2021] NSWSC 374

Croton v The Queen (1967) 117 CLR 326

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

E Co v Q [2018] NSWSC 442

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498

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

Friend v Booker (2009) 239 CLR 129

George v Howard (1819) 7 Price 646; 146 ER 1089

Gray v Gray (2004) 12 BPR 22,755; [2004] NSWCA 408

Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Limited (1930) 45 CLR 111

Joaquin v Hall [1976] VR 788

Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118

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

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32

McGuirk v University of New South Wales [2009] NSWSC 1424

McInnes v Rheem Australia Pty ltd [2021] NSWCA 89

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

Say-Dee Pty Ltd v Farah Constructions [2005] NSWCA 309

Schmierer v Taouk (2004) 207 ALR 301; [2004] NSWSC 345

Seldon v Davidson [1968] 1 WLR 1083; [1968] 2 All ER 755

Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246

Voce v Deloraine [2012] NSWSC 1187

Water Board v Moustakas (1988) 180 CLR 491

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

White v Overland [2001] FCA 1333

Xiang bht Cao v Tong [2021] NSWSC 44

Texts Cited:

Barker, Kit, ‘Unjust Enrichment in Australia: What Is(n’t) It? Implications for Legal Reasoning and Practice’ (2020) 43(3) Melbourne University Law Review 903

Godefroi, The Law of Trusts and Trustees (4th ed, 1915, Stevens)

Category:

Principal judgment

Parties:

Vicki Kordovoulos (first plaintiff)
The Estate of John Kordovoulos (second plaintiff)
Ramonda Dixon-Hughes (first defendant)
The Estate of George Kordovoulos (second defendant)
The Estate of Yvette Kordovoulos (third defendant)
Redmond Hale Simpson (fourth defendant)

Representation:

Counsel:
D Eardley (plaintiff)
M Condon SC (first defendant)
B De Buse (third defendant)

Solicitors:
Theodore Solomon & Partners (Plaintiff)
Owen Hodge Lawyers (First Defendant)
Marsdens Law Group (Third defendant)

File Number(s):

2018/334286

Judgment

1. These proceedings concerned a dispute between family members as to whether monies given by the plaintiffs to their niece (the First Defendant) upon the sale of their property was a gift, a loan or to be held on trust for some unspecified time.

Relief Sought

2. The plaintiffs seek by way of their Fourth Further Amended Statement of Claim (“4 FASOC”) a declaration pursuant to s.75 of the Supreme Court Act 1970 (NSW) or the inherent jurisdiction of the Court that the sale proceeds of the Canley Vale Property are held on constructive trust or resulting trust by the First Defendant, and/or the Second Defendant and/or the Third Defendant for the benefit of the First Plaintiff and/or the Second Plaintiff.

3. Alternatively, the plaintiffs seek a declaration that the sale proceeds are not a loan or a gift to the First Defendant, and/or the Second Defendant, and/or the Third Defendant and is due and repayable forthwith.

4. Further in the alternative, the plaintiffs seek a declaration that the First Defendant, and/or the Second Defendant, and/or the Third Defendant have been unjustly enriched by the sale proceeds.

The Parties

5. The First Plaintiff was the wife of the Second Plaintiff. The Second Plaintiff died prior to the final hearing.

6. The Second Defendant was the Second Plaintiff’s brother and died prior to the commencement of the proceedings. The Third Defendant was the Second Defendant’s wife and also died during the course of proceedings.

7. The First Defendant is the niece of the First and Second Plaintiffs, and the daughter of the Second and Third Defendants.

8. The First Plaintiff and Second Plaintiff have settled the claim against the Fourth Defendant.

Background

9. The First Plaintiff and Second Plaintiff were the registered proprietors of a property in Canley Vale, New South Wales (“the Property”). The plaintiffs had made wills in 2008 leaving their properties to each other and then to the First Defendant. It seems uncontroversial the First Defendant was told of this. It would also appear the plaintiffs and First Defendant were for a long period of time very close and the plaintiffs treated her like a daughter.

10. In May 2017, the plaintiffs told the First Defendant they wished to move into a nursing home and in June the plaintiffs each signed an application for aged care. It was submitted that the First Defendant assisted the First Plaintiff with housework, laundry, transport, appointments and shopping. Also in June it was asserted that Mr Piggott, a solicitor, attended on the plaintiffs to make an enduring power of attorney and instrument of enduring guardian. Later in the month he attended on the plaintiffs again and they re-executed their powers of attorney and instruments of guardianship, to correct an error.

11. In June 2017, the First Plaintiff gave the First Defendant $30,000, placed in an account which the First Plaintiff was given exclusive access to.

12. In June 2017, the Second Plaintiff was admitted to a nursing home, followed by the First Plaintiff in August after briefly living with the defendants.

13. The Second Defendant died on 17 March 2018.

14. In April 2018 the plaintiffs, it is asserted, told the First Defendant to sell the Property. At this time they alleged they told the First Defendant that she can have the proceeds of the sale of the Property. On or about 18 May 2018, the plaintiffs, through the First Defendant, instructed a solicitor acting for them, Redmond Hale Simpson, to prepare a contract of sale for the purpose of selling the Property. Around 28 May 2018 the First Defendant showed the plaintiffs the contract for sale which they executed. On 31 May contracts were exchanged. On 8 June a letter from Redmond Hale Simpson enclosed a transfer. The First Defendant discussed the transfer with the plaintiffs who executed it.

15. On 13 June 2018, the First Defendant explained to the plaintiffs the loan discharge form and the authority. That same day, the First Defendant attended the offices of the solicitor and produced a “Power of Attorney” that was allegedly sighted by an employee of the firm. On 13 June 2018 the First Defendant attended the offices of the solicitor and produced a signed “Authorisation for Balance of Monies” letter dated 13 June 2018 and allegedly signed by the First Plaintiff and/or the Second Plaintiff. The plaintiffs asserted they received no legal advice about the document which was for the sole benefit of the First Defendant. The letter directed the solicitors to deposit the net proceeds of sale from the property, being $371,735.47 (“net proceeds of sale”) to a loan account secured by way of registered mortgage (“ANZ Home loan account”).

16. The ANZ Home loan account was conducted by the First Defendant and/or the Third Defendant.

17. Also on 13 June 2018, the First Defendant showed the plaintiffs the settlement statement which contemplated that $418,369.59 was payable to the First Defendant.

18. The sale of the Property completed on 29 June 2018.

19. Without their express authority, the plaintiffs claimed the net proceeds of sale were applied to the ANZ Home loan account and reduced the balance of that account. It was the First Defendant, and Third Defendant who received the benefit, and not the ANZ Bank. Thereafter, the plaintiffs assert the loan was increased by the first Defendant and/or the Third Defendant. Authority was not given by the plaintiffs to the First Defendant to deposit the net proceeds of sale to the First and Third Defendant’s account.

20. The plaintiffs argued that the money deposited to the ANZ Home loan account was theirs. On 28 June 2018, the account had a balance of $417,066.71. On 29 June 2018, the defendants received part of the net proceeds of the sale of the property, being $325,235.47. The result being the balance of the ANZ Home loan account reduced to $91,831.24.

21. On 3 July 2018, the defendants received the amount of $46,500 to the ANZ Home loan account and this had the effect of reducing the balance to $48,490.

22. In July and August of 2018 the First Defendant went on an overseas holiday. By late August 2018 the Second Plaintiff demanded the return of the net proceeds of sale.

23. By 31 August 2018, the ANZ Home loan account had increased from $48,490.29 to $142,383.13.

24. Some monies were given to the plaintiffs by the First Defendant, for example there was a deposit of $10,000 on 5 September 2018. A further $30,000 was deposited on 21 September 2018. The claim against the defendants was therefore $331,735.47 (“claim amount”) exclusive of interest and costs.

25. On 23 October 2018 the Second Defendant executed a new will which was witnessed by Mr Nolan.

26. By 31 October 2018 the plaintiffs retained solicitors who sent an email to the First Defendant dated 31 October 2018. That letter set out that the solicitor acting for the plaintiffs was seeking monies that were paid to the clients in the total amount of $361,735.47.

27. On 1 November 2018, $10,000 was transferred by the First Defendant to Mr Piggott, a solicitor acting for her. On 13 December 2018 a further $10,000 was paid to Mr Piggott by the First Defendant. A further $10,000 was paid to Mr Piggott (Plaintiff’s Tender Bundle at 34). There was also a withdrawal of $50,000 on 8 April 2018.

28. On 6 July 2019 the Second Plaintiff died.

29. On 10 July 2019, the First Defendant deposited $30,000 into the First Plaintiff’s bank account.

30. On 25 March 2020 the First Plaintiff settled her claim against the Fourth Defendant for $155,000.

The ANZ Home Loan

31. The Third Defendant owned, prior to her death, a property in Rockdale. She owned it with her husband, the Second Defendant who had left her his interest. At the relevant times in which the First Defendant received the monies subject of the claim, the Third Defendant was old, fail, nearly blind and in need of daily support. The First Defendant lived with her and provided this support, along with her sister.

32. The house appears from bank documents to have been purchased 30 years ago by the Second and Third Defendants. They took out a mortgage presumably to purchase the Rockdale property and it was discharged in 1995. In 2004, the First Defendant, as originating borrower, borrowed $420,000. Her parents who were both pensioners were joint borrowers. The account was set up by the First Defendant, which was the subject of a mortgage to ANZ.

33. It was set up in circumstances where it can be inferred that ANZ required the First Defendant to be an owner of the Rockdale Property to be permitted to borrow money jointly with her parents. As a result, she acquired a 10% interest in the property for consideration recorded as love and affection.

Legal Principles

Presumption of a gift

34. There is support for the authority that in the absence of circumstances a voluntary delivery of at least chattels and arguably money gives rise to the presumption of a gift.

35. Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Limited (1930) 45 CLR 111 (“Heydon”) concerned a case in which the plaintiff sued for money lent and money received by the defendant as trustee for the deceased. The defendant denied this claim and argued the money was given to her as a gift. When the respondent in Heydon argued that a voluntary payment to a stranger raises a presumption of resulting trust, Dixon J (at 112) responded by citing Godefroi, The Law of Trusts and Trustees (4th ed, 1915, Stevens) at p. 145 to reject that this presumption applied to the voluntary delivery of chattels. He noted, however, that there is a presumption arising from such the voluntary delivery of chattels that a gift was intended, “in the absence of circumstances”. His Honour then quoted (at 113) Richard C.B in George v Howard (1819) 7 Price 646 at 641; [1819] 146 ER 1089 at 1090 who said “if I deliver money…to another, even although he should be a stranger, it would be prima facie a gift.”

Onus of rebutting presumption in favour of gift

36. Once this presumption logically arises, the onus falls on the plaintiff to prove on the evidence that the giving of money was something other than a gift.

37. In Heydon the trial judge had held that the onus of proving there was a gift lay on the defendant. On appeal the Court (Gavan Duffy CJ with Rich, Starke and Dixon JJ in agreement) overturned this finding and held that “the burden of proving the facts in support of either one or other cause of action set out in the statement of claim, lies on the plaintiff” (at 113). The evidence did not support the plaintiff’s claim, so the appeal was allowed.

38. In Joaquin v Hall [1976] VR 788 (“Joaquin v Hall”) the plaintiff’s cause of action was pleaded as an agreement for a loan of $7500 repayable on demand and breach of that agreement by failure to repay after demand. The defendant argued that the $7500 had been given as a gift. In coming to his decision, Jenkinson J (at 788-789) contrasted the English Court of Appeal’s decision in Seldon v Davidson [1968] 1 WLR 1083; [1968] 2 All ER 755 (“Seldon v Davidson”) where it was held that the burden of proof lay upon the defendant to prove the money was a gift rather than a loan with the contradictory position of the High Court of Australia in Heydon.

39. In Joaquin v Hall, Jenkinson J commented (at 789) that the Court of Appeal in Seldon v Davidson appeared to treat the defence pleaded (that money had indeed changed hands) as a confession and avoidance. Importantly, Jenkinson J, however, found that the defence was a key aspect to the cause of action. Secondly, the presumption of an obligation to repay a payment to a stranger was rejected in Heydon. Ultimately, Jenkinson J concluded that “the burden of proof being on the plaintiff, he has in my judgment failed to discharge it.”

40. The decision of Joaquin v Hall has been applied on numerous occasions in New South Wales. In Schmierer v Taouk (2004) 207 ALR 301; [2004] NSWSC 345, White J found (at [59]) that “the onus of establishing that all or part of the moneys paid by the company to the defendant, or was received by him to the use of the company, lay on the plaintiffs”. Numerous authorities were cited, including Joaquin v Hall and Heydon to support the notion that this onus is not discharged by mere proof of payment. This position was supported by the Court of Appeal in Gray v Gray (2004) 12 BPR 22,755; [2004] NSWCA 408 at [16] and has been applied in numerous subsequent cases (see, e.g., E Co v Q [2018] NSWSC 442 at [63]; Calokerinos (Executor of Estate of Sclavos v Yesilhat) [2017] NSWSC 666 at [791]; Voce v Deloraine [2012] NSWSC 1187 at [12]).

Unjust enrichment

41. Unjust enrichment was first recognised in Australia in Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221 (“Pavey”). In the 1990s it somewhat lost favour with the High Court, however, since the development of the defence of a change of position in Australian Financial Services and Leasing Pty Ltd v Hills Industries (2014) 253 CLR 560 (“Hills”), courts have re-engaged with the concept.

42. The High Court (Hayne, Crennan, Kiefel, Bell and Keane JJ) in Hills (at 595 [73]) noted that the submission that unjust enrichment was a definitive legal principle was rejected in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 (“David Securities”) at 378, and this position has been maintained consistently (citing Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (“Farah Constructions”) at 156 [151]; Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at 665 [85]; Friend v Booker (2009) 239 CLR 129 at 141 [7]; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 at 299 [86]).

43. In Hills, the Court also noted that (at 595 [74]) unconscionability was relevant to unjust enrichment and derived from general equitable notions which find expression in the action for moneys given and received (citing Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 ((“Equuscorp”) at 517 [32]). Their Honours reiterated (at 595 [74]) that unjust enrichment can be equated with “seminal equitable notions of good conscience” (citing Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 at 673).

44. Unjust enrichment is not merely a moral concept. As Deane J commented in Pavey (at 256) that “[t]o identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate.” Rather, it is a concept that must be tied to a “qualifying or vitiating factor such as mistake, duress or illegality” (David Securities at 379).

45. Unjust enrichment can also said to be a “unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation of a defendant to make fair and just restitution” (Pavey at 256-7). This was reiterated in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 (“Mann”) where the Court commented (at 642 [199], references omitted):

Moreover, as Gummow J was at pains to point out in Roxborough v Rothmans of Pall Mall Australia Ltd, ours is not a system in which the theory of unjust enrichment comes first and decisions must then be made to comply with it. It is a common law system of stare decisis that develops over time and through which general principle is derived from judicial decisions. Unjust enrichment may be conceived of as a “unifying legal concept” which serves a “taxonomical function” that assists in understanding why the law recognises an obligation to make restitution in particular circumstances. But it is in no sense an all-embracing theory of restitutionary rights and remedies pursuant to which existing decisions are to be accepted or rejected by reference to the extent of their compliance with its proportions.

46. Unjust enrichment can therefore be viewed as a tool to incrementally develop existing restitutionary rules, as has been seen in the recognition in Mann that a failure of consideration provides a ground for restitution where services have been supplied. A similar attempt to utilise the unjust enrichment principle was made by the Court of Appeal in Say-Dee Pty Ltd v Farah Constructions [2005] NSWCA 309 to develop the law of knowing receipt (at [218]-[221]). This was ultimately overturned by the High Court in Farah Constructions (at 148-159 [130]-[158]). This is reflective of the fact that unjust enrichment is indeed a unifying legal concept, but only in those cases in which it is “genuinely in point” (Kit Barker, ‘Unjust Enrichment in Australia: What Is(n’t) It? Implications for Legal Reasoning and Practice’ (2020) 43(3) Melbourne University Law Review 903 at 913).

47. Unjust enrichment also provides a framework for analysing the various claims or vitiating factors that fall within the accepted categories. In Equuscorp, the High Court accepted and applied a two stage analytical process. This involves firstly establishing an enrichment that is prima facie unjust by reference to recognised classes of vitiating factors, and secondly the identification of circumstances that rebut liability by establishing that restitution would be unjust (at 516 [30]).

46. It should also be noted that unjust enrichment is not in of itself a cause of action (David Securities at 406). In this sense is not a “principle of direct application” and cannot itself form the basis of restitutionary relief (Hills at 596 [78]). Instead, a claim is made ‘in’ unjust enrichment using an established cause of action. Barker in ‘Unjust Enrichment in Australia: What Is(n’t) It?’ elaborates at 930 (references omitted):

A list of causes of action in unjust enrichment law includes those named long ago by Lord Mansfield in Moses. Most are well known and accurately identified in the main texts. They include mistake, failure of basis (consideration or condition), personal incapacity, duress, legal compulsion, undue influence (in its various forms), unconscionable dealing, the ‘free acceptance’ of a benefit, and absence of consent or want of authority in respect of the bestowal of a benefit (sometimes alternatively referred to as cases of ‘ignorance’ or cases in which the plaintiff had ‘no intention’ to make a transfer). They may also include some public policy grounds, such as illegality, and the rule in England and Wales that there should be no taxation without the authority of Parliament. Depending on how broadly the boundaries of the unjust enrichment are drawn, they may also include wrongs, including a number of torts, breaches of confidence, breaches of fiduciary duty, the breach of some types of contract, and accessorial equitable wrongs.

49. This has consequential effects on the way an unjust enrichment claim should be pleaded. The pleaded case must demonstrate not only that the defendant has been enriched at the expense of the plaintiff, but also that there is a relevant qualifying or vitiating factor: that there is a cause of action. What is required to succeed in seeking restitution therefore depends on the cause of action in question and must be outlined with sufficient specificity to establish through one of these grounds that enrichment is unjust.

Pleadings

50. Pleadings function to inform the defendant with sufficient clarity of the case that must be met (McGuirk v University of New South Wales [2009] NSWSC 1424 “McGuirk v UNSW”) at [21]). They require openness and precision so as to prevent the “ambushing” of parties, as outlined by Allsop J in White v Overland [2001] FCA 1333 (“White v Overland”), and subsequently applied in New South Wales (see, e.g., Colombini v De Berigny [2021] NSWSC 374, Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118 and Xiang bht Cao v Tong [2021] NSWSC 44).

51. In White v Overland, Allsop J commented (at [4]) that:

…in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.

52. Whether a case has been sufficiently pleaded was explored in Water Board v Moustakas (1988) 180 CLR 491 (“Water Board v Moustakas”) in which the High Court (Mason CJ, Wilson, Brennan and Dawson JJ, Gaudron J dissenting) found that the case against the defendant which the Court of Appeal had discerned was not in fact a case which the defendant had been required to meet at trial.

53. The Court noted at 497 (references omitted) that:

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged.

54. Their Honours further elaborated (at 497) that “it is necessary to look at the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal”. In this case, the Court held that the plaintiff could have conducted his case in the alternative, but chose to present it on one sole basis. The defendant was therefore never required to meet the case in that alternative and was accordingly entitled to conduct its defence to rely on the case actually put to it.

55. This notion was reiterated in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 (“Whisprun Pty Ltd v Dixon”) in which the Court (Gleeson CJ, McHugh and Gummow JJ, Kirby J dissenting) commented (at 461 [52]) that Water Board v Moustakas makes clear that “a point may be a new point even though it is within the pleadings or particulars” and therefore despite an alternative case being contained within the particulars, it should not have been allowed to be raised on appeal in the absence of inclusion in the plaintiff’s case at trial.

56. Further, the principle in Water Board v Moustakas has been applied consistently in numerous cases since it was decided (see, e.g., McInnes v Rheem Australia Pty ltd [2021] NSWCA 89; Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246).

57. Importantly, proper pleading is of “fundamental importance” in assisting the Court in achieving its overriding purpose as outlined in s. 56 of the Civil Procedure Act 2005 (NSW), being the facilitation of the “just, quick and cheap resolution of the real issues in the proceedings” (McGuirk v UNSW at [24]).

Submissions

Plaintiffs’ submissions

58. The plaintiffs submitted that the document dated 13 June 2018 (“Authorisation for Balance of Monies”) was prepared without legal advice and it was a document for the sloe benefit of the First Defendant.

59. The ANZ account into which the sales proceeds were deposited was conducted by the First Defendant and /or the Third Defendant.

60. They submit that it was the First and Third Defendant who received the benefit and not the ANZ bank.

61. Despite demands being made since at least 29 June 2018 the First Defendant has refused to return the monies.

62. On 28 June 2018 the home loan account at ANZ had a balance of $417,066.71 and after the deposit of $325,235.47 on 29 June 2018 it had a balance of $91,831.24. On 3 July 2018 a further $46,500 was deposited into the ANZ account and as a result the balance was then $48,490.

63. It is submitted that there is no doubt that by late August 2018 her uncle was demanding the money back.

64. Although she asserts a gift in her defence she was happy to return money, for example $10,000 on 5 September 2018.

65. It is pointed out that the Defendant was told by her aunt at [176] that she and her uncle had decided that they wanted half the money back. She promised that she would do it “next week”.

66. She did not return the money and in cross examination she could not give any reason why she did not do it.

67. Another conversation occurred in August 2018 wherein her aunt suggested she take a third, [173].

68. By 31 October 2018 the plaintiffs had consulted lawyers. The First Defendant said in cross examination that she understood the letter and what her aunt and uncle wanted.

69. It was put to her that her mother Yvette was aware that the First Defendant had received the net proceeds of the sale of the property of her aunt and uncle.

70. It is submitted that the Second Plaintiff gave evidence on three occasions and the first two were on commission when there were technical and translator problems. It is accepted that there are inconsistencies between the evidence on commission and that taken before the court. It is accepted there is no doubt she can speak some English but she is an elderly Greek lady who says she does not read English.

71. It is submitted the court should be cautious in making a finding that she could read English unaided by a translator.

72. Comments are made about other witnesses but it is submitted that the First Defendant was not an impressive witness who sought to advocate her own case. She made, it is submitted, deliberately false statements and gave no reason why she did not return the money.

73. The plaintiffs trusted the First Defendant and having drafted the relevant document of 13 June 2018 there was no mention in it of the word “gift”.

74. It is submitted that at no time was there any agreement and the plaintiffs were elderly people who transferred the whole of their life savings to the Defendant. The First Defendant expected to receive their estate when they died and sought to take her inheritance prematurely. She spent the money knowing her aunt and uncle wanted the money back.

75. The First Defendant should not be accepted as a witness of truth.

76. It is submitted there should be an adverse inference by reason of the fact that no-one from the law firm Redmond Hale Simpson who acted on the conveyance gave evidence.

77. Further, the Defendant was not working at the time she received the monies. She was in a dire financial situation. The court should infer that the parents agreed to allow the defendant to use the ANZ facility.

78. As to whether there was a gift the essential element it is submitted is an unequivocal intention and the donor must not seek to retain it for any purpose and the delivery must occur when the intention exists.

79. There was no gift because the monies were the plaintiffs’ “nest egg”, the Second Plaintiff was unwell, the couple were elderly, there was no intention to make a gift, the demand by their solicitor was inconsistent with a gift, the Defendant knew her uncle wanted the money back, the defendant gave conflicting accounts of the arrangements, she knew that at least half the proceeds belonged to the plaintiffs, there was no meeting of minds or agreement, and the behaviour of the First Defendant amounts to elder abuse.

80. There was equally no loan. Therefore the Third Defendant is liable to account to the plaintiffs for the net proceeds of the sale.

81. There is in the circumstances a constructive and / or resulting trust.

82. It is submitted that unjust enrichment is not a cause of action per se.

83. It is submitted that the First and Third Defendants were enriched when the net proceeds of the sale were applied and when the proceeds were received. The benefits obtained by the defendants were, first there was a significant reduction in the loan, the interest on the outstanding balance was reduced and there was an enhanced ability to redraw.

84. The defendants retained the benefit of the proceeds in circumstances where the first defendant it is submitted knew there was no gift to her and there are no defences therefore there has been unjust enrichment.

First Defendant’s submissions

85. The First Defendant submits in reply that there can be no case can be made for a trust (in so far as the plaintiffs seek proprietary relief) there was never any trust property.

86. The sale proceeds were paid into an overdraft account and as they were subsumed into a debit account and ceased to exist as money.

87. It is submitted that a constructive trust is imposed because the trustee’s conscience is bound by some recognisable equity. Further that a claim for unjust enrichment presupposes a claim which vitiates the transaction. It is then submitted that the 4 FASOC does not plead any facts giving rise to the equity nor the circumstances which impugn the retention by the First Defendant of the proceeds of sale.

88. The case sought to be brought is that the First Defendant by dishonest means misappropriated the sale proceeds. In the light of that it is submitted that the plaintiffs cannot given their claim of dishonesty rely upon some un-pleaded arrangement or understanding which bound the conscience of the first defendant.

89. The plaintiffs, it is submitted, attempt to rely upon a case not pleaded and which is not open to them. Despite the references to age, health and the absence of legal advice there is no, it is submitted, pleading of unconscionability.

90. Estoppel is not relied upon nor is a Barnes v Addy claim pleaded it is submitted.

91. In assessing whether and if so to what extent the plaintiffs have discharged the onus of proof five matters it is submitted are relevant.

92. First, as the Second Plaintiff died before the trial his evidence could not be tested and no application was made to have his evidence taken early.

93. Secondly the allegations of dishonesty or forgery are grave and s.140 Evidence Act 1995 (NSW) and Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 need to be kept in mind.

94. Thirdly, some of the important evidence to which the plaintiffs have failed to respond.

95. Fourthly, the failure to cross examine certain of the defendants’ witnesses, eg. Helen Best and Angela Fawn Tui Yung. Nor did the plaintiffs seek to rebut by way of contrary evidence the statements of Ms Best and Ms Yung, importantly on speaking English at family occasions and the plaintiffs’ intentions on the gift of the money.

96. And, fifthly the obvious antipathy which existed between the First Defendant and the Second Defendant. For example that the First Plaintiff thought her husband had become sick and died because of the First Defendant.

97. And even in the course of the case the Second Plaintiff appeared to challenge the authenticity of signatures. No case as to forgery has ever been pleaded. Nor has any handwriting expert been called on such an issue.

98. The First Plaintiff made unsustainable claims. She also asserted contrary to the facts that the First Defendant rarely took her to her son’s grave. Merely because the First Plaintiff is elderly is not a reason to give her the benefit of the doubt when assessing her evidence. On occasions the First Plaintiff chose not to assist the court by not answering questions. Her saying that she could not remember ever seeing the 13 June 2018 document before, T.51/8.

99. This evidence can only be explained, it is submitted, by her not remembering or failing to acknowledge matters which she thought damaged her case.

100. It is further submitted that her credit suffered by reason of some of the evidence she gave. She made serious and unfounded allegations suggesting that the first defendant could have forged her husband’s signature, T.14/28 and T.49/37.

101. The case was that the house was sold without the plaintiffs being told and that they only found out when the First Defendant returned from holidays, T.46/10-29. Later and inconsistently she said she knew the house was sold before the First Defendant went on holiday, T.53/49 -T.54/12.

102. Her evidence about her husband’s ability to read English and that he kept books and records of their business. That he attended to banking, and read the bills for the store. He read the form guide and read some of her 2008 will before she executed it.

103. It was submitted that she should not be believed when she said that he could not read a single word of English. However neither her will made in 2008 nor her affidavits record them as having been translated for her benefit before execution.

104. It was submitted she understated her fluency in English and ability to speak it. Her assertion that someone else executed her will should not it is submitted be accepted.

105. The First Defendant’s case is that the plaintiffs gifted the money to her. It is submitted the court can take into account that the plaintiffs did not file any affidavit in reply to Ms Best of for example Ms Yung.

106. The plaintiffs’ failure to contact the police if they thought their money was stolen it is submitted is highly relevant.

107. It is submitted that the document of 13 June 2018 expressly authorises the First Defendant to release the proceeds of the sale to the First Defendant. It is not put by the plaintiffs that there was a contract and that the First Defendant was the mere custodian of the funds.

108. It is submitted that the First Defendant’s conduct towards the plaintiffs was to continue to look after them and not consistent with consciousness of guilt.

109. There has been no basis put forward as to why the court should reject the evidence of Ms Best or Ms Yung.

Third Defendant’s submissions

110. The Third Defendant submits that the claim against was as a result of the plaintiffs joining the Defendant on or around 13 February 2019.

111. The claim is one of unjust enrichment. But there is no evidence the account into which the proceeds of sale went was ever operated by the First Defendant’s parents.

112. The Third Defendant had no way of knowing the circumstances of the money coming into the account or its source.

113. The bank, it is submitted, received the funds not the individuals. The money repaid has been subsequently withdrawn by the First Defendant or applied by ANZ to the amounts owed to it.

114. The relief pleaded in the 4 FASOC allege a constructive trust and as a result of the payment into the relevant bank account there is a basis for damages or some equitable compensation.

115. It is not it is submitted the payment was wrongful but merely a trust was created. But it is submitted that as the account was a line of credit secured by a mortgage there was no property created upon which the trust could fix.

116. There is no suggestion that the monies were deposited by either the First Defendant’s parents. Although it is pleaded that the monies were the proceeds of sale and that the Second and Third Defendants knew that fact there is no evidence or particulars of such knowledge.

117. No case is pleaded to the effect that the Second and Third Defendant knew the monies were trust monies or that the proceeds were wrongly received.

118. It is submitted that the First Plaintiff accepted in evidence on 9 March 2020, that the Second and Third Defendant did not know anything about the transaction, T.8/4-25.

119. It is submitted that the factual basis for the Second and Third Defendants having any knowledge of deposits into the loan account is not identified. It is noted however that no Barnes v Addy case is pleaded.

120. It is submitted that the bank statements show a debt owed by the First Defendant being repaid. As a result there is no basis exposed for liability for damages or equitable compensation.

121. The Second and Third Defendants on the evidence it is submitted are no more than persons who held an account through which monies passed.

122. The authorities make clear it is submitted that the pleadings must precisely identify the relevant conduct relied upon and the right of recovery. And there is no support in the authorities for the proposition that a person whose loan is repaid without knowledge of any wrongdoing, but who does not retain the benefit is liable to the original owner of the funds.

123. It is submitted on the evidence that the funds were initially borrowed to renovate the property but that that never occurred, the monies being subsequently used for the purposes of the First Defendant. Without knowledge the Second and Third Defendants cannot be liable.

124. The only persons who benefitted, it is submitted, are the bank and the first defendant.

125. The plaintiffs briefly replied criticising or qualifying the evidence especially of Ms Best and Ms Yung.

126. It was further submitted that it was open for the plaintiffs to raise serious allegations because the First Defendant conceded she had received the funds.

127. It was also submitted that the evidence does support the fact that the Second Defendant knew the First Defendant had received the plaintiffs’ funds, T.25/41.

Evidence

The First Plaintiff

128. In her affidavit of 26 October 2018 the First Plaintiff accepts that the signatures on a costs agreement of 9 May 2018 are that of hers and her husband, [5]. Again she identifies the signatures of herself and husband on a Loan Discharge Authority and she confirms hers and her husband, [9].

128. She asserts that the First Defendant would come to the house from time to time to have the she and her husband sign documents which she would not read because she not read English well, [12].

129. She also asserted that the First Defendant and the Second Plaintiff would speak to each other in Arabic, [13].

130. She was shown the authority of 13 June 2018 which she had seen before. She asserts the letter was never explained to her by the First Defendant, [10].

131. She asked the First Defendant after the First Defendant came back from holiday where the money and the First Defendant said she put into her name otherwise the nursing home would take the money. She asserts she told the First Defendant that the nursing home would give the balance to the First Defendant. The First Defendant insisted the money was hers and she was keeping it, [15]-[20].She also gave evidence of her husband accusing the First Defendant of being thief and a liar and that he would every day ask for the money back, [20]-[22].

132. The First Defendant came to the nursing home and gave the Plaintiff $40,000.

133. She accepted that she and her husband made wills in favour of the first defendant, [38].

134. Her second affidavit is dated 5 March 2020. In it she asserts that rather than not reading English well as she had previously stated the correct position is that she does not read English “at all”.

135. She swore a further affidavit of 17 March 2020 consenting to be appointed to represent her husband’s estate.

136. Her solicitor swore an affidavit on the same day, 5 March 2020 which purported to explain the circumstances of his affidavit and the First Plaintiff’s ability to read and write English.

137. I admitted the affidavit of the second named plaintiff (who was deceased at the date of the trial) on a limited basis. Unlike his wife whilst he accepts he signed Costs agreement the Loan Discharge Authority and the contract for the sale of their home. However as to the authority to receive finds dated 13 June at first he states he is not sure that the signatures are his and his wife’s, [19] but then a little later in the affidavit asserts he believes the document is forgery or one he signed believing it to be one needed for the sale of his home, [32] and [38]. More to the point he denies ever giving the First Defendant authority “to take all of my money”, [31].

138. The First Plaintiff was first cross examined before a registrar on 9 March, 5 August and 1 October 2020. As a result of COVID it was via AVL. Those proceedings were conducted before a Registrar and although I have had the advantage of reading the transcripts I did not observe the First Plaintiff and as a result I have placed less weight on that evidence than the evidence taken before me.

139. I was able for the first time to conduct a live hearing on 1 February 2021 when the First Plaintiff once again gave evidence. Although she had been partially cross examined previously she was when the matter resumed cross examined again with the assistance of an interpreter.

140. During cross examination she on numerous occasions insisted she could not read or write English, T.13/15-20, that when she and her husband had a number of small businesses he did all the paperwork, books and records and dealt with customers and suppliers, T.13/25-50, T.14./5-10,T.15/43-45, T.22/10-25. On one occasion she answered in English, T.25/5-15. And she said she did not know how to read English, T.27/20-25.      

141. She did however concede her husband did speak English to customers and suppliers, T.15/48-50. She did not read the bills or assist her husband with the books and records, T.16/30-50.

142. She denied the First Defendant helped her from about the 1990’s, T.17/10-15 and made no contribution to the headstone on her son’s grave, T.18/10-15.

143. She accepted that she knew in 2017 that the First Defendant was assisting in the sale of her house and to liaise with an agent for that purpose, T.20/5-15.

144. On a number of occasions she refused to answer questions about difficulties her husband had with the body corporate, T.21/1- 40.

145. She was asked about the will she and her husband signed in 2008. However, she denied under the will the First Defendant inherited the estate, T.26/35-40.

146. When asked if it was her signature on her will, she thought so, she did not know and maybe somebody else did it, T.27/30-35. She understood it however and knew the document dealt with what would happen upon her death, T.27/40-45. She conceded she knew her estate would go to the First Defendant because she was her husband’s niece and “I don’t have anyone else near me”, T.28/30-35.

147. She agreed the First Defendant would sometimes take she and her husband to see her son’s grave, T.29/25-30, she would also take her shopping and arrange the payment of bills, T.30/10-30.

148. She decided to make the First Defendant her beneficiary because the rest of her family had families and a business and she did not have anything and “we felt sorry for her”, T.31/1-7.She asserted that the First Defendant kept seeing she and her husband just for the money but she agreed she gave her money because she loved her, T.31/15-25. She loved her right up to June 2018 but she was wrong and she and her husband thought she would look after them as they got older but they were wrong, T.31/25-32.

149. She agreed she signed papers for the sale of their house, T.32/1-10. She could not understand the explanation she got from the solicitor about the power of attorney, T.33/40-45. She agreed she made the first defendant her attorney because they loved her “but she didn’t love us”, T.34/25-30.

150. Again when asked about her signature on another document she again answered, “may be mine, or maybe not. She might have signed”, T.36/30-40.

151. She agreed that when her husband was admitted to a nursing home in 2017, they discussed who should be nominated as next of kin and they agreed that it should be the first defendant, T.37/20-25.

152. She denied they often spoke English at home and her husband could only understand and speak English, “Yes, a bit”, T.37/38-40. She agreed that the First Defendant took her shopping but refused to accept she had been deliberately downplaying the assistance she got from the first defendant, T.38/25-30.

153. She denied discussing with her husband giving the proceeds of the sale to the First Defendant, T.39/15-25.

154. She appeared to be uncertain about the signature on her own affidavit, T.43/35-50, 44/1-45 and she insisted she could not read and that she told her solicitor Mr Nolan she could not read English, T.44/45-46.

155. She denied ever inviting the First Defendant to move into the house when she and her husband moved into care, T.46/5-10. She asserted that the First Defendant sold the house, took the money went on holidays. She did not tell them before she went on her holidays, T.46/10-25.

156. She did not know by June 2018 that the house had been sold. She did not remember saying in her affidavit that her signature was on a particular document, T.47/20-30.

157. She asserted that perhaps the First Defendant forged her signature on a document but it was drawn to her attention that she had not said that in her affidavit, T.48/10-40. She stated that she had brought lots of papers for them to sign but they did not know what they were about, T.48/25-30.

158. She either did not know or could not remember whether she had signed documents, T.49/15-40. She did agree that the First Defendant came to discuss the sale of the house, T.50/14-19. It was put to her directly that in May / June 2018 more than once that you wanted her to have the proceeds of sale. He said that was a lie, T.50/35-50, 51/1-10.

159. She was shown the handwritten authority of 13 June 2018 and she did not remember seeing it before, and she was not sure that it was hers or her husband’s signature, T.51/25-50. She could not remember what explanation she got from the defendant, T.52/20-35. She also accepted that she knew the money had been paid before the First Defendant went overseas, T.53/20-25. She was not happy for her to spend the money to fund her holiday, T.53/45-50.

160. She also asserted that the First Defendant wanted to put the plaintiffs in a nursing home so she could sell the property and “take our money”, T55/40-45. It was put to her that in March 2019, when the First Defendant came to see them that she could have the money from selling the house and put it into the mortgage to which she answered “yes”, and the problem was that she had spent all the money on a holiday, again to which she answered, “yes”, T.57/9-20.

161. However she described as a lie that they told the First Defendant she could have the money as they did not need it, T.58/25-35. When her husband asked for the money she said it was all hers, T59/20-35. The First Plaintiff asked for some money because she did not have any, T.61/20-25.

162. It was put to her that she was happy for the First Defendant to have the money if it went to the mortgage but not on a holiday. She said she did not know the First Defendant was doing that, T.62/25-30.

Mr Nolan

164. Mr Nolan was the plaintiffs’ solicitor. He swore an affidavit on 5 March 2020.

165. He said he was told when he visited the First Plaintiff in a nursing home that she could not read English well and that her niece would explain documents to her, [3].

166. He then said he read her affidavit to her “slowly” and she understood the contents.

167. Subsequently she said she did not read English but could recognise the occasional word but she could understand English when it is spoken to her, [4].

168. In cross examination he said he was familiar with how affidavits are to be prepared when a deponent cannot speak English, T.19/45-50.

169. He explained that he did not attend to the requirements of the relevant legislation because he did not turn his mind to it, T.21/25-30.

170. He does not speak a “great deal” (he can say the odd word) of Greek and he does not read it, T.21/45-50.

171. He agreed that he had taken affidavits from people who do not speak English and he has made sure the requirements were met but here he did not turn his mind to it, T.22/20-30.

172. He accepts that he had several conferences in the English language before the affidavits were executed, T.22/40-45. He read her the drafts in the English language, T.23/5-10.

173. He read the affidavits to her, she could not read the English, T.23/25-40. He denied he failed to get the requisite certificate because he thought she could read English, T.23/4-45.

174. He was taken to the various affidavits, T.25/15-50. He again denied that at the time he prepared the affidavits they could read them, T.26/30-40.

The First Defendant

175. The First Defendant swore an affidavit dated 19 May 2020.

176. She asserts that for as long as she could remember the plaintiffs spoke to her in English whenever the family got together, [7] and she and her parents and the plaintiffs would have lunch every Sunday over a period of about twenty years, [14].

177. She recalled the First and Second Plaintiffs owned takeaway shops in Earlwood/Kingsgrove, [8] and in Dulwich Hill, [9].

178. The plaintiffs’ son Milton was found murdered in Mittagong in 1984, [10].

179. She and her family for the next twenty or so years would have lunch together nearly every Sunday, [20]. They complained their house was too hot in summer and so she bought them an air conditioner, [14].

180. She stated she arranged for a new headstone for their son’s grave when it was vandalised, [15].

181. In the first half of 2004 the plaintiffs were not getting on with their neighbours. In about March 2008 the plaintiffs came to visit her at home and her aunt that she was like a daughter to them and that they had made wills leaving everything to her and gave her a copy of their wills dated 20 March 2008, [19].

182. They referred to her as their daughter and they discussed wanting to be buried with their son, [24]. Because the Second Plaintiff’s health was fading she saw less of them but would still take the First Plaintiff to visit the grave of their son, [28].

183. From 2017 the Second Plaintiff was often hospitalised with various health issues, [30]. She often helped them clean their home or pay someone else to do it, [32].

184. In May 2017 the plaintiffs and the First Defendant discussed the idea of the Second Plaintiff going into a nursing home, [34]. She introduced them to a solicitor friend a Mr Piggott who prepared a power of attorney, [39]-[45] while the Second Plaintiff was in Liverpool hospital.

185. The First Plaintiff and the First Defendant had a discussion about how much money she and her husband could have in the bank if he was going into a nursing home, [56]. The First Plaintiff said she did not want money in their names (which was an amount of $30,000), [56].

186. The Second Plaintiff was eventually admitted to a nursing home, [63]. In about August 2017 the First Defendant arranged for the First Plaintiff to live with her and her parents but later in August the First Defendant also was admitted the nursing home, [67]. Both she and her husband were admitted without a bond, [67].

187. They often offered the First Defendant money and at one point asked whether she had thought of moving into their home, [75].

188. The First Plaintiff was concerned from time to time how much money she and her husband could have in their bank accounts, [77]-[82].

189. In February or March 2018 she (the First Defendant) told the plaintiffs she was going overseas and that her friend was paying for her, [83]-[87]. Her father then suddenly passed away in March 2018 while her mother was in hospital, [86].

190. In about April 2018 she had a conversation with the plaintiffs in which they asked her to “get rid of the house”, [88]. The Second Plaintiff said to her that he thought she would always look after them and she confirmed she would. They asked her to prepare the house for sale, [89].

191. Again in late April or early May 2018 the First Defendant says she had another discussion with the Plaintiffs in which the First Plaintiff said that they had decided they wanted the First Defendant to have ”the money” and that they knew she would always look after them, [93].

192. As a result of an offer by a neighbour the plaintiffs agreed to sell their home. Instructions were then given to a Mr Simpson of RHS Lawyers, [96].

193. A costs agreement was prepared dated 9 May 2018. The First Defendant read the document out loud to the plaintiffs and told them the fees would be $2189. They both signed the agreement on 15 May 2018, [103].

194. The First Defendant did the same in due course with the contract for sale, [108].

195. She also read them the letter from the solicitors, RHS lawyers dated 31 May 2018, [110].

196. On or about 8 June 2018 she states she read them a letter dated the same day and had them sign the transfer which she witnessed, [111]-[112].

197. The First Defendant asserts she told the lawyers on 13 June 2018 that the sale proceeds were to be paid into her account as her uncle and aunt wanted that to happen, [114]. She then had the plaintiffs sign the Loan Discharge Authority on 13 June 2018, [115]-[116].

198. She then she said she had a conversation with the plaintiffs and both said that all of the money was to be paid to her and that they did not need the money and it was all to go “to you”, [119]. She said she told the plaintiffs she had been told by the lawyers that she needed a letter confirming that, [119]. She took out a piece of paper and prepared the document which both plaintiffs signed, both saying “the money is yours”, [120]-[121].

199. On 27 June 2018 she asserts she explained the settlement to the plaintiffs and read from a solicitor’s letter, [128]-[131]. On 29 June she says she had a conversation with the plaintiffs and they asked if she had received the proceeds and both said “very good” or “good luck”, [135].

200. She says she continued to visit them and take them to Botany Cemetery to visit their son’s grave, [139]. She left on a trip to London on 10 July 2018, [141].

201. After she returned and late in August 2018 the Second Plaintiff asked where his money was and called her a thief, [144]-[146]. The First Plaintiff said that was not the arrangement, she did not need any money and that she take a third, namely $100,000. The Second Plaintiff said it was his money. She left but rang the First Plaintiff later who said it was all ok, [155].

202. After discussion with the First Plaintiff she transferred $10,000 into the Second Plaintiff’s account from an amount of $30,000 transferred into her account in 2017 by the plaintiffs for their funerals, [162].

203. She then received a number of abusive calls from the Second Plaintiff about the money [164], but the First Plaintiff kept saying that everything was okay, [169].

204. On 13 September 2018 at a meeting at the nursing home the First Plaintiff told her that she and the Second Plaintiff had decided they would like half back. She the deposited $30,000 into the plaintiffs’ bank account,[177].

205. The Second Plaintiff was admitted to hospital on 26 October 2018.

206. The First Defendant was shocked to receive a letter of demand on 31 October 2018, [191].

207. On 8 February 2019 she received a phone call from the Second Plaintiff who told her she had stolen his money and he wanted it back, [197].

208. On 8 July 2019 she received a phone call from her cousin who told her that the Second Plaintiff had died, [198]. On 10 July 2019 she deposited $30,000 into the First Plaintiff’s account. She rang to speak to the First Plaintiff, but she would not come to the phone, [212]-[214].

209. She agreed in cross examination when asked by the Second and Third Defendants’ counsel that her parents had taken out a mortgage on their home so she and her husband could have the loan, T.34/1-5. She was responsible for repayment, T.34/8-11.

210. She also agreed she took out another loan in 2004 to do some renovations on the house, T.36/10-15.

211. The loan also paid out her credit card debt, T.37/20-23. But the renovation did not occur and she conducted the credit facility and she had a key card for the account, T.37/20-30.

212. Her parents were both unwell and her mother could not see properly and her father had dementia, T.38/1-15.

213. When cross examined by counsel for the plaintiffs she agreed that she made mistakes about saying she paid for the air conditioner and a headstone for the grave of the plaintiffs’ son, T.43/1-20. She agreed she assisted the plaintiffs over many years and she had a loving relationship based upon trust, T.45/10-30.

214. She agreed the money she received was a gift from the plaintiffs and it was their life savings, T.46/5-20. She also agreed that her uncle had been unwell for years, T.46/15-25.

215. She heard her uncle and aunt speaking Greek but also witnessed them reading and writing English, T.48/1-10.

216. She denied she simply put the cost agreement in front of them without explanation, T.49/15-40. She agreed they wanted to sell their house and she organised a solicitor who they did want to meet, T.50/1-20.

217. She denied putting documents in front of them and getting them to sign them, T.51/30-50. She agreed that she did not suggest her aunt and uncle have independent advice about the transaction, T.53/5-15. She agreed the entire sale was under her control but she denied she assisted them because they had a real problem conversing in the English language, T.54/15-30.

218. She denied a few weeks after the settlement of the house her uncle asked her for the money back, T.56/5-35. She denied she could speak Greek and she also denied she just put documents in front of her aunt and uncle to sign without explanation, T.62/25-50.

219. She did not use the word “gift” when she drew up the authority because it had already been discussed, T.65/30-50. She did not know why she did not use the word “gift”, T.66/10-15.

220. She had spent all the money on a mortgage and credit cards, T.66/21-50.

221. She had paid the mortgage and then redrew the monies notwithstanding that she only has a ten per cent interest in the house, T.69/5-25. The money went on credit cards and legal fees, T.70/40-50.

175. She spoke to the law firm and she told someone there that her aunt and uncle wanted her to have the proceeds from the sale of their property and they suggested she get something in writing and she composed the words herself, T.76/15-40. She recalled telling a solicitor that her uncle and aunt were giving her the money from the house, T.77/35-50.

176. She denied not telling the plaintiffs the monies were to be deposited into her own bank account, T.78/35-50.

177. She told her aunt and uncle precisely how the settlement monies were to be accounted for, T.84/20-50. She said she told them even though the whole of the monies were going to her because she never hid anything from them, T.84/25-45.

178. She denied deceiving them as to where the monies were going, T.85/10-25. It was put to her that certain conversations she asserted took place were false. She rejected that proposition, T.85/10-50.

179. The loan on her parents’ home was for her and not for them, T.86/1-10.

180. When her uncle some months later asked for the money, she assumed he was referring to the proceeds of sale, T.87/35-40. She appreciated that when she and the plaintiffs had a conversation about dividing the monies by a third, that that was contrary to the arrangement as she understood it, T.89/30-40.

181. She agreed that she received $325,235.47 on 29 July 2018 (sic). That was deposited into the parents’ mortgage account reducing the balance to $91,831.24. On 3 July 2018 a further $46,500 was deposited leaving a debit balance of $48,490.29, T.96/15-45.

182. She agreed that by the end of August 2018 her uncle was asking for the money back, T.96/35-40.

183. She denied the reason she did not give the money back when her uncle asked for it was because she had spent over $83,000 by the time he asked her, T.100/35-40.

184. It was put to the First Defendant that numerous conversations she alleges took place with the defendants did not take place, T.113/15-50, 114/15-40.

185. Although her uncle was upset and asked for the money back her aunt kept saying no they did not want it back, T.117/40-50.

Mr Hanna Israel

233. The evidence of Mr Hanna Israel of 15 May 2020 was read without objection and no cross examination.

234. He has owned and operated a locksmith business for 20 years, [3]. He knows the First Defendant and through her he met the plaintiffs, [5]-[6].

235. He would see them out with the First Defendant in the Rockdale Plaza from time to time and it appeared the First Defendant was taking care of them, [10].

Ms Helen Best

236. The evidence of Ms Helen Best of 15 May 2020 was read without objection and no cross examination.

237. She is the sister of the First Defendant, [3]. She stated that at family gatherings at Christmas and Sunday lunches the family only spoke English, [12].

238. She also became aware that the First Defendant would take the plaintiffs out to Botany Cemetery to visit the grave of their son, [14]-[17]. She also became aware her sister would generally care for the plaintiffs, [18].

239. She became aware that her uncle and aunt were selling their house. She stated she had a conversation with her mother who told her that the plaintiffs had decided to give the proceeds from the sale of the house to the First Defendant, [29].

Ms Angela Fawn Tui Yung

240. Ms Angela Fawn Tui Yung swore one affidavit of 14 May 2020. Again, no objection was taken to the affidavit and there was no cross examination.

241. She was a friend of the family and knew the First Defendant and other members of the family, [7]-[10].

242. On 24 March 2019 she visited the plaintiffs in their nursing home. During the course of the conversation she recalled the Second Plaintiff said that the First Defendant had stolen his money and he was going to get her. The First Plaintiff said that they had said “she could have our money from selling the house and out in her mortgage, but she has spent all the money on a holiday. She has spent all our money”, [15]-[22].

Mr Brandon Piggott

243. Mr Brandon Piggott, a former solicitor, was called. He had supplied a precis of evidence but not an affidavit.

244. He had previously acted for the First Defendant but in 2017 attended at Liverpool Hospital as a result of a request of the First Defendant to attend upon the plaintiffs to have powers of attorney, enduring powers of attorney and enduring guardianship documents signed, T.137/25-35.

245. He stated he took instructions from the plaintiffs and the First Defendant was present when that occurred, T.138/1-2.

246. He spoke to them and they to him in English and they had “no difficulty at all”, T.138/5-10.

247. Although he had been told the First Defendant was not well he found him quite animated, T.138/35-40.

248. The Second Plaintiff was quiet and polite. The conference took about an hour. They all chatted while the forms were filled out, T.139/5-15.

249. He went back a second time because of a mistake in the documentation. He spoke to them on the second occasion again in English, T.139/20-25.

250. He stated that the First Plaintiff said “all this money is for her” or “everything we’ve got will “be for her, T.140/20-40. He accepted that he made no diary notes of the conversation, T.141/20-25.

251. In cross examination he stated the Second Plaintiff had some accent, but he spoke English very well, T.143/9-15.

252. He did not see the Second Plaintiff read the document, that is turn the pages, he had a discussion with the First Plaintiff about each item to make sure he understood everything, T.143/40-45.

253. He did not know whether the First Plaintiff could read English but from his conversation with her she did understand what he was saying to her, T.144/20-25.

Consideration

254. The resolution of this case in large part depends upon the acceptance or not of conversations between the Plaintiff and her deceased husband on the one hand and their niece the First Defendant on the other.

255. The evidence in this case is unsatisfactory particularly the evidence of the principal protagonists. By that I mean the credit of the First Plaintiff and First Defendant is very much in question, but in the end it is the plaintiffs who bear the relevant onus.

256. The plaintiffs plead that on 15 May 2018 “through” the First Defendant they instructed a solicitor acting for them to prepare a contract for the sale of their home, 4 FASOC, [9].

257. It is also alleged the First Defendant attended the offices of the solicitor with a “Power of Attorney” and an “Authorisation for Balance of Monies” both dated 13 June 2018, 4 FASOC [11(a) and (b)]. The pleading somewhat enigmatically states, “and it is purported” she produced both documents, which were “allegedly sighted” by an employee of the solicitor, and “allegedly signed” by the Plaintiffs. It is not entirely clear what is intended by these paragraphs, but they appear to go nowhere.

258. Monies were it is alleged received by the First Defendant as a constructive trustee and deposited into a bank account (at the ANZ) in the names of the First Defendant and her parents.

259. It is specifically pleaded that the arrangement was not a loan, or a gift, involved a trust and that the defendants have been unjustly enriched, 4 FASOC [12]-[24].

260. There was no plea in contract, mistake nor was it pleaded that there was some unconscionable conduct on the part of the defendants or any of them. Duress is not pleaded.

261. The case essentially turns upon whether the plaintiffs gave the monies, the proceeds of the sale of their home to the Defendant as a gift or simply to hold on some unspecified basis for an indefinite period.

262. The case is in some respects a finely balanced one largely due to two factors. First the death before the hearing of a number of witnesses, namely the Second Plaintiff (who was clearly privy to some relevant events), and the Second and Third Defendants. Secondly the equivocal language used in one of the critical documents, namely the so called “authorisation” of 13 June 2018.

263. I should also add that the plaintiffs sued a firm of solicitors, which was settled before the hearing.

264. In the end however, and not without some hesitation I am satisfied that in all the circumstances the settlement monies should properly be regarded as a gift and not monies loaned or to be held on trust for the plaintiffs.

265. The relevant parties were family and were very close especially at the time the particular property was sold in 2018. The plaintiffs I am satisfied treated the First Defendant like their own daughter. As early as 2008 the plaintiffs had made their wills leaving their property to each other and then their entire estate to the first defendant. However I accept that the Second Plaintiff in particular changed his mind and executed a new will in October 2018. I presume the First Plaintiff may have done likewise. I also accept that the First Defendant between about August 2018 and July 2019 transferred back to the Plaintiffs an amount of $70,000. Equally the plaintiffs had transferred $30,000 to the First Defendant in 2017 and entrusted their funeral arrangements to her.

266. It is true that the plaintiffs were elderly, unwell and as a result likely vulnerable and I am satisfied that the First Defendant with her profligate personality was likely opportunistic. There is no doubt the plaintiffs did not have any legal advice before they signed the 13 June document and it is clear that the document does not use the word “gift” but I consider that the plaintiffs’ intentions (despite the First Plaintiff’s denial) were clear. They wanted as at June 2018 the First Defendant to have and use the proceeds of the sale of their home.

267. There was clearly no formal arrangement between the parties at the time. However, I am satisfied that the plaintiffs, at least the First Plaintiff did say many of the things attributed to her by the First Defendant about the First Defendant having the proceeds of sale. I also consider the plaintiffs wanted to help the First Defendant out, but became upset and bitter by reason of the First Defendant going on holiday very soon after she got the proceeds. I consider after that event they felt betrayed and let down because they thought (wrongly) the First Defendant had squandered all the monies on the trip. More particularly I should say where there is a dispute about what was said or not between the First Plaintiff and First Defendant on balance I would prefer the account given by the First Defendant.

268. I am also of the view that for a time until perhaps he forgot or changed his mind the Second Plaintiff was also content to provide the entire proceeds to the First Defendant for her own use as at June 2018. That position clearly changed, even on the First Defendant’s evidence. However whilst he had signed numerous documents at various stages in connection with the sale he believed on one view and asserted in his affidavit that the First Defendant had forged his signature on the 13 June 2018 authority. Plainly that assertion was absurd. I am satisfied he and the First Plaintiff both signed that document following a discussion with the First Defendant. What is clear from that document which I accept was read to them, is that the plaintiffs clearly did understand the First Defendant was receiving the funds and they were not for example being deposited into their own bank account or that of their solicitor.

269. I am also satisfied the First Plaintiff’s understanding of the English language was far greater than she would have the court believe. First, although she had an interpreter whilst she gave her evidence, she and her husband ran small businesses for years where I am satisfied she had to deal from time to time with all manner of persons in the English language. Importantly she needed no interpreter when she swore her affidavits. There also is an abundance of evidence, not just from the First Defendant, to support the view that she spoke English on family and other occasions.

270. I am also satisfied she not only told the First Defendant the monies were to be hers, but she successfully pacified the Second Plaintiff when he raised the matter from time to time although I accept a letter of demand to the First Defendant was issued on 31 October 2018.

271. The plaintiffs’ solicitor did not assist his clients’ case. His evidence was in parts simply implausible. The better view of his evidence is that the question of an interpreter did not cross his mind at the time he was preparing the affidavits for good reason, namely that there was no problem from his point of view with his clients being able to converse in and understand English. His belated attempt to assist his clients on the issue made the First Plaintiff’s assertions about her lack of understanding of English even more absurd. The First Plaintiff’s evidence about her doubt about her signature on her 2008 will is simply an invention on her part and did not enhance her credit.

272. The fact of the matter is that both plaintiffs at the time were elderly and in the case of the Second Plaintiff quite unwell. There was no medical evidence however tendered at the trial largely no doubt due to the fact that there was no pleaded issue to which it could have gone.

273. I am satisfied the plaintiffs actively enlisted the assistance of the First Defendant to organise the sale of their home. I am also satisfied the plaintiffs likely wanted the First Defendant to have her inheritance early and gave the First Defendant reason to understand exactly that. It may well be for whatever reason the Second Plaintiff in particular later regretted that decision perhaps because he became disappointed with the First Defendant.

274. It must be said however, the First Defendant was a most unsatisfactory witness but that is not what the case was about. One could only have the utmost sympathy for the plaintiffs and the possibility that two elderly, vulnerable people were cajoled by an opportunistic profligate, but again the well-known doctrine of unconscionability was never pleaded and it is plain from the transcript that counsel for the defendants were vigilant to ensure the pleaded case was adhered to at all times.

275. I should say however that aspects of the First Defendant’s version of events were to some extent corroborated by Mr Israel (the First Defendant caring for the plaintiffs), Ms Best (on the plaintiffs’ ability to speak English) and Ms Young (on the intention of the plaintiffs to give the proceeds to the First Defendant). I accept their evidence which I should add was not challenged. Mr Piggott also gave evidence as to the plaintiffs’ ability to speak and understand English when he visited them in 2017 and with some reservations, I do accept that part of his evidence as reliable and truthful.

276. I am satisfied the plaintiffs have not discharged their onus and proved the case that there was no gift or loan. Nor do the arrangements on the facts give rise to a trust. The notion of unjust enrichment therefore has no operation or life of its own in the absence of some specific pleaded case entitling restitution.

277. So far as the Second and Third Defendants are concerned there is simply no or virtually no evidence fixing them of either knowledge of the sale of the property or the circumstances surrounding it. Again there is no pleaded case along the lines of Barnes v Addy, nor arguably could there be.

278. In any event as I have found on balance the monies were a gift any knowledge they did or did not have is of no consequence.

279. As a result of my reasons above the plaintiffs fail in their case against the First, Second and Third Defendants.

280. I would request the parties to prepare short minutes to reflect these reasons and I will determine any issue concerning the form of the orders or costs if there is any disagreement.

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Decision last updated: 18 June 2021